<PAGE> 1
FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 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 September 30, 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 33-11634
TRANS-RESOURCES, INC.
(Exact name of registrant as specified in its charter)
Delaware 36-2729497
- ------------------------------- -------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
9 West 57th Street, New York, New York 10019
---------------------------------------- ----------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (212) 888-3044
-------------
Indicate by check mark whether 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 registrant was required
to file such reports), and (2) has been subject to such filing requirements for
the past 90 days.
YES X NO
--- ---
At November 10, 1995, there were outstanding 3,000 shares of common stock, par
value of $.01 per share, all which were owned by TPR Investment Associates,
Inc., a privately-held Delaware corporation.
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Form 10-Q
TRANS-RESOURCES, INC.
Form 10-Q Index
September 30, 1995
<TABLE>
<CAPTION>
Page
PART I Number
------ ------
<S> <C>
Item 1. - Financial Statements (Unaudited):
Consolidated Statements of Operations . . . . . . . . . . . . . . . . . . . 3
Consolidated Balance Sheets . . . . . . . . . . . . . . . . . . . . . . . . 4
Consolidated Statement of Stockholder's Equity . . . . . . . . . . . . . . 5
Consolidated Statements of Cash Flows . . . . . . . . . . . . . . . . . . . 6
Notes to Unaudited Consolidated Financial Statements . . . . . . . . . . . 7
Item 2. - Management's Discussion and Analysis of Financial Condition and
Results of Operations . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
PART II
-------
Item 1. - Legal Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Item 6. - Exhibits and Reports on Form 8-K . . . . . . . . . . . . . . . . . . . . . 15
Signatures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
</TABLE>
2
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Form 10-Q
PART I. FINANCIAL INFORMATION
ITEM 1. - FINANCIAL STATEMENTS
TRANS-RESOURCES, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(Unaudited)
<TABLE>
<CAPTION>
Three Month Period Nine Month Period
Ended September 30, Ended September 30,
------------------- -------------------
1995 1994 1995 1994
------- ------- --------- ---------
(000's)
<S> <C> <C> <C> <C>
REVENUES . . . . . . . . . . . . . . . . . . . . . . $87,871 $76,324 $287,602 $251,319
COST AND EXPENSES:
Cost of goods sold . . . . . . . . . . . . . . . 74,466 60,153 241,439 199,092
General and administrative . . . . . . . . . . . 10,749 9,435 30,962 28,967
------- ------- --------- ---------
OPERATING INCOME . . . . . . . . . . . . . . . . . . 2,656 6,736 15,201 23,260
Interest expense . . . . . . . . . . . . . . . . (8,853) (7,266) (25,599) (21,634)
Interest and other income - net . . . . . . . . 2,188 (783) 6,211 14,468
------- ------- --------- ---------
INCOME (LOSS) BEFORE INCOME TAXES . . . . . . . . . . (4,009) (1,313) (4,187) 16,094
INCOME TAX PROVISION (BENEFIT):
Current . . . . . . . . . . . . . . . . . . . . (935) 1,216 1,200 6,162
Deferred . . . . . . . . . . . . . . . . . . . (63) (212) (125) 6,583
------- ------- --------- ---------
(998) 1,004 1,075 12,745
------- ------- --------- ---------
NET INCOME (LOSS) . . . . . . . . . . . . . . . . . . $(3,011) $(2,317) $ (5,262) $ 3,349
======= ======= ========= =========
</TABLE>
See notes to unaudited consolidated financial statements.
3
<PAGE> 4
Form 10-Q
TRANS-RESOURCES, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
September 30, December 31,
1995 1994
------------- ------------
(Unaudited)
(000's)
<S> <C> <C>
ASSETS
CURRENT ASSETS:
Cash and cash equivalents . . . . . . . . . . . . . . . . . $ 22,030 $ 15,571
Accounts receivable . . . . . . . . . . . . . . . . . . . . 71,858 66,106
Inventories:
Finished products . . . . . . . . . . . . . . . . . . . 39,639 33,747
Raw materials . . . . . . . . . . . . . . . . . . . . . 18,001 17,566
Other current assets . . . . . . . . . . . . . . . . . . . . 18,766 168,200
Prepaid expenses . . . . . . . . . . . . . . . . . . . . . . 21,948 18,852
-------- --------
Total Current Assets . . . . . . . . . . . . . . . . . . 192,242 320,042
PROPERTY, PLANT AND EQUIPMENT - NET . . . . . . . . . . . . . . . 221,373 202,085
OTHER ASSETS . . . . . . . . . . . . . . . . . . . . . . . . . . 30,599 28,827
-------- --------
Total . . . . . . . . . . . . . . . . . . . . . . . . . $444,214 $550,954
======== ========
LIABILITIES AND STOCKHOLDER'S EQUITY
CURRENT LIABILITIES:
Current maturities of long-term debt . . . . . . . . . . . . $ 57,114 $124,465
Short-term debt . . . . . . . . . . . . . . . . . . . . . . 30,098 33,521
Accounts payable . . . . . . . . . . . . . . . . . . . . . . 40,490 57,077
Accrued expenses and other current liabilities . . . . . . . 29,870 38,685
-------- --------
Total Current Liabilities . . . . . . . . . . . . . . . 157,572 253,748
-------- --------
LONG-TERM DEBT-NET:
Senior indebtedness, notes payable and other obligations . . 123,503 102,059
Senior subordinated indebtedness - net . . . . . . . . . . . 114,057 140,385
Junior subordinated debentures - net . . . . . . . . . . . . 8,178 7,981
-------- --------
Long-Term Debt - net . . . . . . . . . . . . . . . . . . 245,738 250,425
-------- --------
OTHER LIABILITIES . . . . . . . . . . . . . . . . . . . . . . . . 26,313 26,231
-------- --------
STOCKHOLDER'S EQUITY:
Preferred stock, $1.00 par value, 100,000 shares
authorized, issued and outstanding . . . . . . . . . . . 7,960 7,960
Common stock, $.01 par value, 3,000 shares authorized,
issued and outstanding . . . . . . . . . . . . . . . . . - -
Additional paid-in capital . . . . . . . . . . . . . . . . . 505 505
Retained earnings . . . . . . . . . . . . . . . . . . . . . 6,675 13,432
Cumulative translation adjustment . . . . . . . . . . . . . (591) (360)
Unrealized gains (losses) on marketable securities . . . . . 42 (987)
-------- --------
Total Stockholder's Equity . . . . . . . . . . . . . . . 14,591 20,550
-------- --------
Total . . . . . . . . . . . . . . . . . . . . . . . . . $444,214 $550,954
======== ========
</TABLE>
See notes to unaudited consolidated financial statements.
4
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Form 10-Q
TRANS-RESOURCES, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF STOCKHOLDER'S EQUITY
Nine Month Period Ended September 30, 1995
(Unaudited)
<TABLE>
<CAPTION>
ADDITIONAL CUMULATIVE UNREALIZED
PREFERRED COMMON PAID-IN RETAINED TRANSLATION GAINS(LOSSES)
STOCK STOCK CAPITAL EARNINGS ADJUSTMENT ON SECURITIES TOTAL
--------- ------ ---------- -------- ----------- ------------- ------
(000'S)
<S> <C> <C> <C> <C> <C> <C> <C>
BALANCE, January 1, 1995 . . . . . $7,960 $ - $505 $13,432 $(360) $(987) $20,550
Activity for the nine month
period ended September 30, 1995:
Net loss . . . . . . . . . . . . . (5,262) (5,262)
Dividends paid . . . . . . . . . . (1,495) (1,495)
Net change during period . . . . . (231) 1,029 798
------ ---- ---- ------- ----- ----- -------
BALANCE, September 30, 1995 . . . . $7,960 $ - $505 $ 6,675 $(591) $ 42 $14,591
====== ==== ==== ======= ===== ===== =======
</TABLE>
See notes to unaudited consolidated financial statements.
5
<PAGE> 6
Form 10-Q
TRANS-RESOURCES, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
<TABLE>
<CAPTION>
Nine Month Period
Ended September 30,
-------------------------
1995 1994
-------- ---------
(000's)
<S> <C> <C>
OPERATING ACTIVITIES AND WORKING CAPITAL
MANAGEMENT:
Operations:
Net income (loss) . . . . . . . . . . . . . . . . . . . . . . $ (5,262) $ 3,349
Items not requiring (providing) cash:
Depreciation and amortization . . . . . . . . . . . . . . 16,224 16,391
Deferred taxes and other - net . . . . . . . . . . . . . . 1,009 5,448
-------- ---------
Total . . . . . . . . . . . . . . . . . . . . . . . . . 11,971 25,188
Working capital management:
Accounts receivable and other current assets . . . . . . . . . 19,809 (19,125)
Inventories . . . . . . . . . . . . . . . . . . . . . . . . . (2,440) 11,633
Prepaid expenses . . . . . . . . . . . . . . . . . . . . . . . (3,075) (106)
Accounts payable . . . . . . . . . . . . . . . . . . . . . . . (18,646) 11,870
Accrued expenses and other current liabilities . . . . . . . . (13,925) 4,849
-------- ---------
Cash provided (used) by operations and working
capital management . . . . . . . . . . . . . . . . . . (6,306) 34,309
-------- ---------
INVESTMENT ACTIVITIES:
Additions to property, plant and equipment . . . . . . . . . . . . (31,661) (68,675)
Purchases of marketable securities and other short-term investments (4,371) (120,935)
Sales of marketable securities and other short-term investments . 132,406 29,625
Other - net . . . . . . . . . . . . . . . . . . . . . . . . . . . (3,916) 2,572
-------- ---------
Cash provided (used) by investment activities . . . . . . 92,458 (157,413)
FINANCING ACTIVITIES:
Decrease in short-term debt . . . . . . . . . . . . . . . . . . . (3,823) (1,014)
Increase in long-term debt . . . . . . . . . . . . . . . . . . . . 42,892 165,716
Repurchases, payments and current maturities of long-term debt . . (117,267) (36,438)
Distributions to stockholder . . . . . . . . . . . . . . . . . . . (1,495) (225)
-------- ---------
Cash provided (used) by financing activities . . . . . . . (79,693) 128,039
-------- ---------
INCREASE IN CASH AND CASH EQUIVALENTS . . . . . . . . . . . . . . . . . 6,459 4,935
CASH AND CASH EQUIVALENTS:
Beginning of period . . . . . . . . . . . . . . . . . . . . . . . 15,571 25,742
-------- ---------
End of period . . . . . . . . . . . . . . . . . . . . . . . . . . $ 22,030 $ 30,677
======== =========
</TABLE>
See notes to unaudited consolidated financial statements.
6
<PAGE> 7
Form 10-Q
TRANS-RESOURCES, INC. AND SUBSIDIARIES
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
Basis of Presentation and Other Matters
The consolidated financial statements of Trans-Resources, Inc. (the
"Company") include the Company and its direct and indirect subsidiaries, after
elimination of intercompany accounts and transactions. Effective March 31, 1995,
the Company acquired the assets of Na-Churs Plant Food Company ("Na-Churs"), a
company headquartered in Ohio and engaged in the specialty plant nutrient
business. The Company's principal subsidiaries are Cedar Chemical Corporation
("Cedar"), and Cedar's two wholly-owned subsidiaries, New Mexico Potash
Corporation and Vicksburg Chemical Company ("Vicksburg"); Na-Churs; Eddy Potash,
Inc.; and Haifa Chemicals Ltd., an Israeli corporation ("HCL"), and HCL's
wholly-owned subsidiary, Haifa Chemicals South Ltd. The Company is a
wholly-owned subsidiary of TPR Investment Associates, Inc., a privately-held
corporation. Certain prior period amounts have been reclassified to conform to
the manner of presentation in the current period.
In the opinion of management, the unaudited consolidated financial
statements for the nine month periods ended September 30, 1995 and 1994,
respectively, include all adjustments, which comprise only normal recurring
accruals, necessary for a fair presentation of the results for such periods. The
results of operations for the nine month period ended September 30, 1995 are not
necessarily indicative of results that may be expected for any other interim
period or the full fiscal year. It is suggested that these unaudited
consolidated financial statements be read in conjunction with the financial
statements and notes thereto included in the Company's Annual Report on Form
10-K for the fiscal year ended December 31, 1994 (the "Form 10-K") which has
been filed with the Securities and Exchange Commission.
7
<PAGE> 8
ITEM 2 - MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
The following table sets forth, as a percentage of revenues and the
percentage dollar change of those items as compared to the prior period, certain
items appearing in the unaudited consolidated financial statements of the
Company.
<TABLE>
<CAPTION>
Percentage Period Percentage Period
of Revenues to of Revenues to
----------- Period ----------- Period
Three Month Changes Nine Month Changes
Period Ended ------- Period Ended -------
September 30, Increase September 30, Increase
------------- -------------
1995 1994 (Decrease) 1995 1994 (Decrease)
---- ---- ---------- ---- ---- ----------
<S> <C> <C> <C> <C> <C> <C>
Revenues . . . . . . . . . . . . . . . . 100.0% 100.0% 15.1% 100.0% 100.0% 14.4%
Costs and expenses:
Cost of goods sold . . . . . . . . . 84.7 78.8 23.8 84.0 79.2 21.3
General and administrative expense . 12.3 12.4 13.9 10.7 11.5 6.9
----- ----- ----- -----
Operating income . . . . . . . . . . . . 3.0 8.8 (60.6) 5.3 9.3 (34.7)
Interest expense . . . . . . . . . . (10.1) (9.5) 21.8 (8.9) (8.6) 18.3
Interest and other income - net . . 2.5 (1.0) 379.4 2.1 5.7 (57.1)
----- ----- ----- -----
Income (loss) before income taxes . . . . (4.6) (1.7) (205.3) (1.5) 6.4 (126.0)
Income tax provision (benefit) . . . . . (1.2) 1.3 (199.4) .3 5.1 (91.6)
----- ----- ----- -----
Net income (loss) . . . . . . . . . . . . (3.4)% (3.0)% (30.0)% (1.8)% 1.3% (257.1)%
----- ----- ----- -----
</TABLE>
8
<PAGE> 9
Form 10-Q
RESULTS OF OPERATIONS
Three month period ended September 30, 1995 compared with the three month period
ended September 30, 1994:
Revenues increased by 15.1% to $87,871,000 in 1995 from $76,324,000 in 1994,
an increase of $11,547,000, resulting from increased sales of specialty plant
nutrients and industrial chemicals ($11,500,000) (including $2,400,000 relating
to the acquisition of Na-Churs) and organic chemicals ($2,400,000), which were
partially offset by lower sales of potash ($2,400,000).
Cost of goods sold as a percentage of revenues increased during the period
(84.7% in 1995 compared with 78.8% in 1994), primarily due to certain raw
material and utility cost increases, which were partially offset by increases in
the selling prices of the Company's products, and, to a lesser extent, the
customary costs associated with the initial run-in periods of the Company's
newly-constructed manufacturing facilities. As a result of the foregoing, gross
profit was $13,405,000 in 1995 compared with $16,171,000 in 1994 (15.3% of
revenues in 1995 compared with 21.2% of revenues in 1994), a decrease of
$2,766,000. General and administrative expense increased to $10,749,000 in 1995
from $9,435,000 in 1994 (12.3% of revenues in 1995 compared with 12.4% of
revenues in 1994).
As a result of the matters described above, the Company's operating income
decreased by $4,080,000 to $2,656,000 in 1995 as compared with $6,736,000 in
1994.
Interest expense increased by $1,587,000 ($8,853,000 in 1995 compared with
$7,266,000 in 1994) primarily as a result of interest on the long-term debt that
financed the construction of the K3 Plant (as defined below). Interest and other
income - net increased in 1995 by $2,971,000, principally as the result of the
net adjustments relating to the marking-to-market of forward exchange contracts
which do not qualify as hedges.
As a result of the above factors, loss before income taxes increased by
$2,696,000 in 1995. The Company's provisions for income taxes are impacted by
the mix between domestic and foreign earnings and vary from the U.S. Federal
statutory rate principally due to the impact of foreign operations and certain
losses for which there is no current tax benefit. In addition, during the 1995
period HCL recorded a $1,100,000 tax refund related to prior years.
9
<PAGE> 10
Nine month period ended September 30, 1995 compared with the nine month period
ended September 30, 1994:
Revenues increased by 14.4% to $287,602,000 in 1995 from $251,319,000 in
1994, an increase of $36,283,000, resulting from increased sales of specialty
plant nutrients and industrial chemicals ($38,300,000) (including $9,600,000
relating to the acquisition of Na-Churs) and organic chemicals ($2,700,000),
which were partially offset by lower potash sales ($4,700,000).
Cost of goods sold as a percentage of revenues increased during the period
(84.0% in 1995 compared with 79.2% in 1994), primarily due to certain raw
material and utility cost increases, which were partially offset by increases in
the selling prices of the Company's products, and, to a lesser extent, the
customary costs associated with the initial run-in periods of the Company's
newly-constructed manufacturing facilities. As a result of the foregoing, gross
profit was $46,163,000 in 1995 compared with $52,227,000 in 1994 (16.0% of
revenues in 1995 compared with 20.8% of revenues in 1994), a decrease of
$6,064,000. General and administrative expense increased to $30,962,000 in 1995
from $28,967,000 in 1994 but declined as a percentage of revenues (10.7% of
revenues in 1995 compared with 11.5% of revenues in 1994). Pursuant to an
agreement during the 1995 period, the Company recorded a $750,000 reimbursement
of certain general and administrative expenses incurred in prior years on behalf
of an entity in which the Company has an investment.
As a result of the matters described above, the Company's operating income
decreased by $8,059,000 to $15,201,000 in 1995 as compared with $23,260,000 in
1994.
Interest expense increased by $3,965,000 ($25,599,000 in 1995 compared with
$21,634,000 in 1994) primarily as a result of interest on the long-term debt
that financed the construction of the K3 Plant. Interest and other income - net
decreased in 1995 by $8,257,000, principally as the result of the 1994 period
including a gain of approximately $18,100,000 relating to the February 1994 fire
at HCL as compared to a $1,700,000 gain in the 1995 period relating to such
fire, with the remainder of the decrease in the 1995 period being partially
offset primarily by (i) the net adjustments relating to the marking-to-market of
forward exchange contracts which do not qualify as hedges and (ii) interest
income related to a prior year's tax refund.
As a result of the above factors, income before income taxes decreased by
$20,281,000 in 1995. The Company's provisions for income taxes are impacted by
the mix between domestic and foreign earnings and vary from the U.S. Federal
statutory rate principally due to the impact of foreign operations and certain
10
<PAGE> 11
losses for which there is no current tax benefit. In addition, during the 1995
period HCL recorded a $1,100,000 tax refund related to prior years.
CAPITAL RESOURCES AND LIQUIDITY
The Company's consolidated working capital at September 30, 1995 and
December 31, 1994 was $34,670,000 and $66,294,000, respectively.
Operations for the nine month periods ended September 30, 1995 and 1994,
after adding back non-cash items, provided cash of $12,000,000 and $25,200,000,
respectively. During such periods other changes in working capital provided
(used) cash of ($18,300,000) and $9,100,000, respectively, resulting in net cash
being provided (used) by operating activities and working capital management of
($6,300,000) and $34,300,000, respectively.
Investment activities during the nine month periods ended September 30, 1995
and 1994 provided (used) cash of $92,500,000 and ($157,400,000), respectively.
Such amounts include additions to property, plant and equipment in 1995 and 1994
of $31,700,000 and $68,700,000, respectively, purchases of marketable securities
and short-term investments of $4,400,000 and $120,900,000, respectively, and
sales of marketable securities and other short-term investments of $132,400,000
and $29,600,000, respectively. The 1995 and 1994 property additions principally
relate to (i) the construction of the K3 plant, (ii) the replacement of the HCL
production unit damaged in the fire in February, 1994 and (iii) the construction
of a potassium carbonate manufacturing facility (see "Capital Expenditures"
below). The 1994 purchases and the 1995 sales of marketable securities and other
short-term investments principally relate to the purchase in 1994 and the
liquidation in 1995 of the pledged certificates of deposit ("CD's") described
below.
Financing activities during the nine month periods ended September 30, 1995
and 1994 provided (used) cash of ($79,700,000) and $128,000,000 respectively,
(principally relating to the increase of certain long-term debt in 1994 and the
prepayment of such debt in 1995, which is described below).
On June 30, 1994, the Company entered into a Loan Agreement with a bank and
borrowed $40,000,000 (repayable quarterly over a four year period) and utilized
a portion of the proceeds to prepay approximately $19,000,000 then owed to such
bank. Pursuant to the Loan Agreement, the Company also borrowed an additional
$100,000,000, repayable in January, 1996. Under certain specified circumstances
prior to such date, the Company could have converted such loan into a term loan
maturing five years from the date of conversion. The Company pledged CD's with
an aggregate principal amount of $100,000,000 as collateral for such loan (such
CD's are included in "other current assets" in the accompanying December 31,
1994
11
<PAGE> 12
Consolidated Balance Sheet). On January 5, 1995, the Company liquidated the
pledged CD's and prepaid the $100,000,000 loan.
As of September 30, 1995, the Company had outstanding long-term debt
(excluding current maturities) of $245,738,000. The Company's primary source of
liquidity is cash flow generated from operations and certain revolving loan
commitments. See Note G of Notes to Consolidated Financial Statements in the
Form 10-K regarding additional information concerning the Company's long-term
debt obligations.
Approximately 90% of HCL's sales are made outside of Israel in various
currencies, of which approximately 34% are in U.S. dollars, with the remainder
principally in Western European currencies. In order to mitigate the impact of
currency fluctuations against the U.S. dollar, the Company has a policy of
hedging a significant portion of its foreign sales denominated in Western
European currencies by entering into forward exchange contracts. A portion of
these contracts qualify as hedges pursuant to Statement of Financial Accounting
Standards No. 52 and accordingly, unrealized gains and losses arising therefrom
are deferred and accounted for in the subsequent year as part of sales.
Unrealized gains and losses for the remainder of the forward exchange contracts
are recognized in income currently. If the Company had not followed such a
policy of entering into forward exchange contracts in order to hedge its foreign
sales, and instead recognized income based on the then prevailing foreign
currency rates, the Company's income before income taxes for the nine month
periods ended September 30, 1995 and 1994 would have increased by approximately
$10,300,000 in each period.
The principal purpose of the Company's hedging program (which is for other
than trading purposes) is to mitigate the impact of fluctuations against the
U.S. dollar, as well as to protect against significant adverse changes in
exchange rates. Accordingly, the gains and losses recognized relating to the
hedging program in any particular period and the impact on revenues had the
Company not had such a program are not necessarily indicative of its
effectiveness.
CAPITAL EXPENDITURES
During 1995 (excluding the K3 Plant and the reconstruction of the HCL
production unit damaged by fire in February 1994) the Company invested
approximately $16,000,000 in capital expenditures. During 1993 the Company
commenced construction of a new facility in Israel ("the K3 Plant"), with
initial capacity to produce approximately 100,000 metric tons of potassium
nitrate annually. The Company has recently completed the construction of the K3
Plant and the reconstruction of the damaged HCL production unit.
12
<PAGE> 13
The total costs incurred in connection with the construction of the K3 plant
was approximately $100,000,000. Since the Company has received approximately
$34,000,000 in Israeli Government grants related to the K3 plant, the Company's
accompanying consolidated balance sheet includes the K3 plant at a cost, net of
grants, of approximately $66,000,000.
The Company currently anticipates that capital expenditures for the year
ending December 31, 1995 (excluding the K3 Plant and the reconstruction of the
damaged production unit) will aggregate approximately $19,000,000. The Company's
capital expenditures will be used primarily for increasing certain production
capacity and efficiency, product diversification, safety and for ecological
matters. The Company expects to be able to finance its capital expenditures from
internally generated funds, borrowings from traditional lending sources and,
where applicable, Israeli Government grants and entitlements.
INFLATION
Inasmuch as only approximately $45,000,000 of HCL's annual operating costs
are denominated in New Israeli Shekels ("NIS"), HCL is exposed to inflation in
Israel to a limited extent. The combination of price increases coupled with
devaluation of the NIS have in the past generally enabled HCL to avoid a
material adverse impact from inflation in Israel. However, HCL's earnings
increase or decrease to the extent that the rate of future NIS devaluation
differs from the rate of Israeli inflation. For the years ended December 31,
1993 and 1994, the inflation rate of the NIS as compared to the U.S. Dollar
exceeded the devaluation rate in Israel by 3.2% and 13.4%, respectively.
ENVIRONMENTAL MATTERS
See Item 1 - "Business - Environmental Matters" and Note N of Notes to
Consolidated Financial Statements included in the Company's Form 10-K for
information regarding environmental matters relating to the Company's various
facilities.
13
<PAGE> 14
PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
As previously disclosed (most recently in the Form 10-K), on or about
December 20, 1991, Peter N. Zachary together with fifteen other persons,
claiming to be shareholders of Sylvan Learning Centers, Inc., The Enstar Group,
Inc., Kinder-Care, Inc. and Kinder- Care Learning Centers, Inc., filed a
complaint in the Circuit Court for Montgomery County, Alabama against certain
former indirect stockholders and directors of the Company, and against TPR
Investment Associates, Inc., ("Associates") (which is a former parent
corporation of the Company), Trans-Pacific (the former name of the Company) and
various other named persons and entities and certain unnamed entities. During
October 1995 the Company entered into a settlement agreement with plaintiffs
providing for dismissal of the action and releases to the Company, Associates
and Trans-Pacific and payment by the Company of a nominal amount to plaintiffs.
On or shortly after October 24, 1995 numerous law suits were filed in two
Louisiana State Courts and in the United States District Court for the Eastern
District of Louisiana in connection with the release of what is alleged to have
been nitrogen tetroxide from a railcar owned by and located at Gaylord Chemical
Company's ("Gaylord") facility in Bogalusa, Louisiana on October 23 and 24,
1995. Vicksburg had sold the nitrogen tetroxide to Gaylord. Virtually all of the
suits are class actions and allege generally that the classes of defendants
within the vicinity of the Gaylord facility have received injuries due to the
release and will require future medical monitoring, have fear of contracting
serious diseases, desire reimbursement for medical costs and, in several
instances, seek reimbursement for evacuation expenses, including response costs
under the Comprehensive Environmental Response Compensation and Liability Act of
1980, as amended ("CERCLA"). Vicksburg has been named as a defendant in at least
two of the suits: Jimmie Burns v. Illinois Central Railroad Company,
Vicksburg Chemical Company and Union Tank Car, Inc., in the United States
District Court, Eastern District of Louisiana; and In Re: Nitrogen Tetroxide
(N204) Leak at Bogalusa, in the 22nd Judicial District Court, Parish of
Washington, State of Louisiana. Vicksburg did not do anything to contribute to
or bear any responsibility for the incident and intends to deny and vigorously
defend against the allegations of the complaints with respect to itself.
14
<PAGE> 15
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits.
Exhibit 10.1 - Credit Agreement, dated as of November 3, 1995, among Cedar
Chemical Corporation, the Lenders listed on the signature pages thereof and
The Chase Manhattan Bank (National Association), as Administrative Agent
(exhibits and schedules omitted).
Exhibit 27 - Financial Data Schedule.
(b) Reports on Form 8-K.
No reports on Form 8-K were filed during the quarter for which this report
is filed.
15
<PAGE> 16
Form 10-Q
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.
TRANS-RESOURCES, INC.
-----------------------------
(Registrant)
Date: November 10, 1995 Lester W. Youner
-----------------------------
Vice President, Treasurer and
Chief Financial Officer
16
<PAGE> 17
TRANS-RESOURCES, INC.
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit Description Page No.
------- ----------- --------
<S> <C> <C>
10.1 Credit Agreement, dated as of November 3, 1995, among Cedar Chemical
Corporation, the Lenders listed on the signature pages thereof and The Chase
Manhattan Bank (National Association), as Administrative Agent (exhibits and
schedules omitted).
27 Financial Data Schedule.
</TABLE>
17
<PAGE> 1
************************************************************
CEDAR CHEMICAL CORPORATION
CREDIT AGREEMENT
Dated as of November 3, 1995
$100,000,000
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
as Administrative Agent
************************************************************
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C> <C>
RECITALS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 1. Definitions and Accounting Matters . . . . . . . . . . . . . 1
1.01 Certain Defined Terms. . . . . . . . . . . . . . . . . . . . 1
1.02 Accounting Terms and Determinations. . . . . . . . . . . . . 21
1.03 Classes and Types of Loans and Lenders . . . . . . . . . . . 22
Section 2. Commitments . . . . . . . . . . . . . . . . . . . . . . . . 22
2.01 Loans. . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
2.02 Letters of Credit. . . . . . . . . . . . . . . . . . . . . . 23
2.03 Reductions of Commitments. . . . . . . . . . . . . . . . . . 27
2.04 Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
2.05 Lending Offices. . . . . . . . . . . . . . . . . . . . . . . 29
2.06 Several Obligations. . . . . . . . . . . . . . . . . . . . . 29
2.07 Notes. . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
2.08 Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . . 29
Section 3. Borrowings, Conversions and Prepayments. . . . . . . . . . . 29
3.01 Borrowings . . . . . . . . . . . . . . . . . . . . . . . . . 29
3.02 Prepayments and Conversions. . . . . . . . . . . . . . . . . 30
Section 4. Payments of Principal and Interest . . . . . . . . . . . . . 34
4.01 Repayment of Loans . . . . . . . . . . . . . . . . . . . . . 34
4.02 Interest . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 5. Payments; Pro Rata Treatment; Computations; Etc. . . . . . . 36
5.01 Payments . . . . . . . . . . . . . . . . . . . . . . . . . . 36
5.02 Pro Rata Treatment . . . . . . . . . . . . . . . . . . . . . 37
5.03 Computations . . . . . . . . . . . . . . . . . . . . . . . . 37
5.04 Minimum and Maximum Amounts; Types . . . . . . . . . . . . . 38
5.05 Certain Notices. . . . . . . . . . . . . . . . . . . . . . . 38
5.06 Non-Receipt of Funds by the Administrative
Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . 39
5.07 Sharing of Payments, Etc . . . . . . . . . . . . . . . . . . 40
5.08 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 6. Yield Protection and Illegality. . . . . . . . . . . . . . . 44
6.01 Additional Costs . . . . . . . . . . . . . . . . . . . . . . 44
6.02 Limitation on Types of Loans . . . . . . . . . . . . . . . . 45
6.03 Illegality . . . . . . . . . . . . . . . . . . . . . . . . . 46
6.04 Substitute Base Rate Loans . . . . . . . . . . . . . . . . . 46
6.05 Compensation . . . . . . . . . . . . . . . . . . . . . . . . 47
6.06 Additional Costs in Respect of Letters of Credit . . . . . . 48
</TABLE>
-i-
<PAGE> 3
<TABLE>
<CAPTION>
Page
<S> <C> <C>
6.07 Capital Adequacy . . . . . . . . . . . . . . . . . . . . . . 48
Section 7. Conditions Precedent . . . . . . . . . . . . . . . . . . . . 49
7.01 Initial Loans. . . . . . . . . . . . . . . . . . . . . . . . 49
7.02 Initial Working Capital Loans and Letters of Credit . . . . 55
7.03 Initial and Subsequent Loans and Letters of Credit . . . . . 55
7.04 Special Dividend Borrowing Date Loans. . . . . . . . . . . . 55
Section 8. Representations and Warranties . . . . . . . . . . . . . . . 56
8.01 Corporate Existence. . . . . . . . . . . . . . . . . . . . . 56
8.02 Information. . . . . . . . . . . . . . . . . . . . . . . . . 56
8.03 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . 58
8.04 No Breach. . . . . . . . . . . . . . . . . . . . . . . . . . 58
8.05 Corporate Action . . . . . . . . . . . . . . . . . . . . . . 58
8.06 Approvals. . . . . . . . . . . . . . . . . . . . . . . . . . 59
8.07 Regulations U and X. . . . . . . . . . . . . . . . . . . . . 59
8.08 ERISA. . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
8.09 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
8.10 Subsidiaries; Agreements . . . . . . . . . . . . . . . . . . 60
8.11 Investment Company Act . . . . . . . . . . . . . . . . . . . 61
8.12 Public Utility Holding Company Act . . . . . . . . . . . . . 61
8.13 Ownership and Use of Properties. . . . . . . . . . . . . . . 61
8.14 Environmental Matters. . . . . . . . . . . . . . . . . . . . 61
8.15 Foreign Subsidiaries . . . . . . . . . . . . . . . . . . . . 65
Section 9. Covenants. . . . . . . . . . . . . . . . . . . . . . . . . . 65
9.01 Information. . . . . . . . . . . . . . . . . . . . . . . . . 65
9.02 Taxes and Claims . . . . . . . . . . . . . . . . . . . . . . 70
9.03 Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . 71
9.04 Maintenance of Existence; Conduct of Business. . . . . . . . 74
9.05 Maintenance of and Access to Properties. . . . . . . . . . . 74
9.06 Compliance with Applicable Laws. . . . . . . . . . . . . . . 74
9.07 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . 75
9.08 Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . 75
9.09 Current Ratio. . . . . . . . . . . . . . . . . . . . . . . . 75
9.10 Leverage Ratio . . . . . . . . . . . . . . . . . . . . . . . 75
9.11 Interest Coverage Ratio. . . . . . . . . . . . . . . . . . . 76
9.12 Fixed Charge Coverage Ratio. . . . . . . . . . . . . . . . . 77
9.13 Mergers, Asset Dispositions, Acquisitions, Etc . . . . . . . 77
9.14 Liens. . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
9.15 Investments. . . . . . . . . . . . . . . . . . . . . . . . . 78
9.16 Restricted Payments 79
9.17 Transactions with Affiliates . . . . . . . . . . . . . . . . 80
9.18 Lines of Businesses; Other Activities. . . . . . . . . . . . 80
9.19 Capital Expenditures . . . . . . . . . . . . . . . . . . . . 80
</TABLE>
-ii-
<PAGE> 4
<TABLE>
<CAPTION>
Page
<S> <C>
9.20 Modification of Other Agreements . . . . . . . . . . . . . . 81
9.21 Bank Accounts. . . . . . . . . . . . . . . . . . . . . . . . 81
9.22 Interest Rate Protection . . . . . . . . . . . . . . . . . . 82
9.23 Environmental Matters. . . . . . . . . . . . . . . . . . . . 82
9.24 Post-Closing Survey Title Insurance and Mortgage
Modification Matters . . . . . . . . . . . . . . . . . . . 83
9.25 Post-Closing Covenants . . . . . . . . . . . . . . . . . . . 83
Section 10. Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . 85
10.01 Events of Default. . . . . . . . . . . . . . . . . . . . . . 85
10.02 Collateral Account . . . . . . . . . . . . . . . . . . . . . 89
Section 11. The Administrative Agent . . . . . . . . . . . . . . . . . . 89
11.01 Appointment, Powers and Immunities . . . . . . . . . . . . . 89
11.02 Reliance by Administrative Agent . . . . . . . . . . . . . . 90
11.03 Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . 91
11.04 Rights as a Lender . . . . . . . . . . . . . . . . . . . . . 91
11.05 Indemnification. . . . . . . . . . . . . . . . . . . . . . . 91
11.06 Non-Reliance on Administrative Agent and Other
Lenders. . . . . . . . . . . . . . . . . . . . . . . . . . 92
11.07 Failure to Act . . . . . . . . . . . . . . . . . . . . . . . 93
11.08 Resignation or Removal of Administrative Agent . . . . . . . 93
11.09 Collateral Sub-Agents. . . . . . . . . . . . . . . . . . . . 93
11.10 Register . . . . . . . . . . . . . . . . . . . . . . . . . . 94
Section 12. Miscellaneous. . . . . . . . . . . . . . . . . . . . . . . . 94
12.01 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
12.02 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . 95
12.03 Expenses, Etc. . . . . . . . . . . . . . . . . . . . . . . . 95
12.04 Indemnification. . . . . . . . . . . . . . . . . . . . . . . 95
12.05 Amendments, Etc. . . . . . . . . . . . . . . . . . . . . . . 96
12.06 Successors and Assigns . . . . . . . . . . . . . . . . . . . 97
12.07 Confidentiality. . . . . . . . . . . . . . . . . . . . . . . 99
12.08 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . 99
12.09 Captions . . . . . . . . . . . . . . . . . . . . . . . . . . 99
12.10 Counterparts; Integration. . . . . . . . . . . . . . . . . . 99
12.11 GOVERNING LAW; SUBMISSION TO JURISDICTION;
WAIVER OF JURY TRIAL . . . . . . . . . . . . . . . . . . . 99
</TABLE>
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<PAGE> 5
<TABLE>
<CAPTION>
Page
Schedules
<S> <C>
SCHEDULE I - Assigned Agreements
SCHEDULE II - Security Documents
SCHEDULE III - Scheduled Term Loan Installments
SCHEDULE IV - Investments
SCHEDULE V - Agreements; Indebtedness; Liens
SCHEDULE VI - Environmental Matters
SCHEDULE VII - Refinanced Indebtedness
SCHEDULE VIII - Eligible Foreign Account Debtors
</TABLE>
Exhibits
<TABLE>
<S> <C>
EXHIBIT A - Form of Tranche A Term Note
EXHIBIT B - Form of Tranche B Term Note
EXHIBIT C - Form of Working Capital Note
EXHIBIT D - Form of Borrowing Base Certificate
EXHIBIT E - Forms of Opinion of Counsel to
the Company
EXHIBIT F - Forms of Opinions of Special Counsel to
the Administrative Agent
EXHIBIT G - Form of Company Security Agreement
EXHIBIT H - Form of Company Pledge Agreement
EXHIBIT I - Form of Subsidiary Guaranty
EXHIBIT J - Form of Subsidiary Guarantor Security Agreement
EXHIBIT K - Form of Parent Guaranty
EXHIBIT L - Form of Nine West Guaranty
EXHIBIT M - Form of Nine West Pledge Agreement
EXHIBIT N - Form of Summary of Sales by Product Group
EXHIBIT O - Form of Summary of Sales by Product Group and
other Income Statement Information
</TABLE>
-iv-
<PAGE> 6
CREDIT AGREEMENT
AGREEMENT dated as of November 3, 1995, among: CEDAR CHEMICAL
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 which is or which may from time to time become a signatory hereto
(individually, together with its successors, a "Lender" and, collectively,
together with their respective successors, 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):
"Adjusted Cash Flow" shall mean, for any period, the sum (without
duplication), determined on a consolidated basis for the Company and its
Subsidiaries, of (i) Cash Flow for such period, minus (ii) (to the extent not
deducted in determining Cash Flow for such period) current income tax
liabilities of the Company and its Subsidiaries accrued during such period.
"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 5%
of the securities having ordinary voting power for the election of directors or
other governing body of a corporation or more than 5% 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.
-1-
<PAGE> 7
"Applicable Lending Office" shall mean, for each Lender and for
each Type of Loan or Letter of Credit, the Lending Office of such Lender (or of
an affiliate of such Lender) designated for such Type of Loan or Letter of
Credit 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 or such Letters of Credit are to be made and/or issued
and maintained.
"Applicable Margin" shall mean:
(a) With respect to any Tranche A Term Loan or Working Capital
Loan or Letter of Credit 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, in the case of
any Loan, as a function of the type of such Loan):
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------
Applicable Base Euro- Letters
Pricing Rate dollar of
Tier Ratio Loans Loans Credit
- ------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Tier 1 Less than or .500% 1.750% 1.500%
equal to
2.25:1
- ------------------------------------------------------------------------------------------------------
Tier II Less than or .750% 2.000% 1.750%
equal to 3.0:1
but more than
2.25:1
- ------------------------------------------------------------------------------------------------------
Tier III Less than or 1.000% 2.250% 2.000%
equal to
3.75:1 but
more than
3.0:1
- ------------------------------------------------------------------------------------------------------
Tier IV Greater than 1.375% 2.625% 2.375%
3.75:1
======================================================================================================
</TABLE>
provided that during the six-month period following the Closing Date, the
Applicable Margin shall not be less than the percentage set forth above for
Tier III (determined, in the case of any Loan, as a function of the type of
such Loan).
(b) With respect to any Tranche B Term Loan, 2.00% per annum
for Base Rate Loans and 3.25% per annum for Eurodollar Loans.
"Applicable Pricing Ratio" shall mean, for any Performance Period,
the ratio of (x) Indebtedness of the Company and its Subsidiaries, determined
on a consolidated basis as at the end of
-2-
<PAGE> 8
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, considered as a
single accounting period, provided that if the Company shall at any time fail
to deliver the financial statements and related certificate with respect to any
fiscal quarter required pursuant to Section 9.01(a) or (b) and the last
paragraph of Section 9.01 on or prior to the date when due, then, until such
financial statements and related certificate shall have been delivered, the
Applicable Pricing Ratio shall be deemed to be greater than 3.75:1.
"Assigned Agreements" shall mean, collectively, the agreements
listed on Schedule I hereto, as each such agreement shall, subject to Section
9.20 hereof, be modified and supplemented and in effect from time to time.
"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 the Financing Documents, the Special
Dividend Documents, the Assigned Agreements and the Tax Sharing Agreement.
"Borrowing Base" shall mean, as at any date, the amount of the
Borrowing Base as of the date of the Borrowing Base Certificate then most
recently delivered pursuant to Section 9.01(c), determined by calculating the
sum of (i) 85% of the aggregate amount of Eligible Receivables at said date
plus (ii) 50% of the aggregate amount of Eligible Inventory at said date;
provided that the amount determined pursuant to clause (ii) shall at no time
exceed 50% of the Borrowing Base.
"Borrowing Base Certificate" shall mean a certificate, duly
executed by a Senior Officer, appropriately completed and in substantially the
form of Exhibit D hereto.
"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 and if such day relates to a borrowing of, a payment or prepayment of
principal of or interest on, a
-3-
<PAGE> 9
conversion of or into, or an Interest Period for, a Eurodollar 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 Expenditures" shall mean expenditures in respect of fixed
or capital assets by the Company or any of its Subsidiaries, including the
capital portion of lease payments made in respect of Capital Lease Obligations,
but excluding expenditures for the restoration or replacement of fixed or
capital assets to the extent financed by the proceeds of an insurance policy
described in clause (1) of Section 9.03 hereof.
"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 to
the extent such obligations 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, (i) the sum (without
duplication), determined on a consolidated basis for the Company and its
Subsidiaries, of (x) 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 (y)
depreciation, amortization and other non-cash items (to the extent deducted in
determining operating income) for such period plus (z) accrued interest income
(to the extent not included in determining operating income) for such period
minus (ii) proceeds received during such period (to the extent included in
determining operating income) of any insurance policy described in clause (1)
of Section 9.03 hereof.
"Cedar International" shall mean Cedar International, Inc., a
Tennessee corporation, and its successors.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended from time to time, and
regulations promulgated thereunder.
"Chase" shall mean The Chase Manhattan Bank (National Association)
and its successors.
"Class" shall have the meaning assigned to such term in Section
1.03 hereof.
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<PAGE> 10
"Closing Date" shall mean the date of the initial Loans hereunder.
"Code" shall mean the Internal Revenue Code of 1986, as amended,
or any successor statute.
"Collateral Account" has the meaning set forth in the Security
Documents.
"Commitments" shall mean, as to any Lender, the aggregate of such
Lender's Tranche A Term Loan Commitment, Tranche B Term Loan Commitment and
Working Capital Commitment.
"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.
"Current Assets" shall mean at any date the current assets
(excluding cash and cash equivalents) of the Company and its Subsidiaries
determined on a consolidated basis as of such date.
"Current Liabilities" shall mean at any date the consolidated
current liabilities (excluding the current portion of long-term Indebtedness)
of the Company and its Subsidiaries plus (without duplication) the current
liabilities of any Person (other than the Company or one of its Subsidiaries)
which are Guaranteed by the Company or one of its Subsidiaries, all determined
on a consolidated basis as of such date.
"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.
"Derivatives Obligations" of any Person shall mean all obligations
of such Person in respect of any Derivatives Transaction.
"Derivatives Transaction" shall mean any rate swap transaction,
basis swap, forward rate transaction, commodity swap, commodity option, equity
or equity index swap, equity or equity index option, bond option, interest rate
option, foreign exchange transaction, cap transaction, floor transaction,
collar transaction, currency swap transaction, cross-currency rate swap
transaction, currency option or any other similar transaction (including any
option with respect to any of the foregoing transactions) or any combination of
the foregoing transactions.
"Dollars" and "$" shall mean lawful money of the United States of
America.
-5-
<PAGE> 11
"Eligible Inventory" shall mean, as at any date of determination
thereof, the value (determined at the lower of cost or market on a first-in,
first-out basis) of all Inventory owned by (and in the possession or under the
control of) the Company or any Subsidiary Guarantor and located in a
jurisdiction in the United States of America as to which appropriate Uniform
Commercial Code file search reports have been received and appropriate Uniform
Commercial Code financing statements have been filed naming the Company as
"debtor" and the Administrative Agent as "secured party"; provided that the
Administrative Agent (with the consent of the Required Lenders) may at any time
exclude from Eligible Inventory any type of Inventory which they (in their sole
discretion) determine to be unmarketable as a result of their general credit
and lending standards.
"Eligible Receivables" shall mean, as at any date of determination
thereof, the aggregate of all Receivables at said date due to the Company or
any Subsidiary Guarantor other than the following (determined without
duplication):
(a) all Receivables which, at the date of the original
issuance of the respective invoice therefor, were payable more than 60 days
(or, in the case of a Receivable in respect of a sale of pesticides, 180
days) after such date,
(b) any Receivable due from an account debtor whose principal
place of business is located outside the United States of America unless
(i) such Receivable is fully backed by an irrevocable letter of credit
issued or confirmed by a U.S. commercial bank having a combined capital and
surplus of not less than $150,000,000 or (ii) such account debtor is listed
as an eligible foreign account debtor on Schedule VIII hereto, as such
Schedule may be modified from time to time by the Administrative Agent with
the consent of the Required Lenders,
(c) any Receivable due from (i) an Affiliate of the Company or
(ii) an account debtor which is the subject of bankruptcy, insolvency or
similar proceedings or which the Required Lenders (through the
Administrative Agent) have notified the Company does not have a
satisfactory credit standing (as determined in the reasonable discretion of
the Required Lenders),
(d) any Receivable which remains unpaid for more than 60 days
after the date set forth for payment in the invoice originally issued
therefor,
(e) all Receivables due from any account debtor if more than
25% of the aggregate amount of the Receivables due from such account debtor
have at the time remained unpaid for more than 60 days after the date set
forth for payment in the invoice originally issued therefor,
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(f) any Receivable as to which there is any unresolved dispute
with, or claim or defense (which has not been waived) by, the respective
account debtor (but only to the extent of such dispute, claim or defense),
(g) any Receivable evidenced by an instrument (as defined in
Article 9 of the Uniform Commercial Code) not in the possession of the
Administrative Agent and any other Receivable in which the Administrative
Agent does not have a perfected first priority security interest,
(h) any Receivable due from the United States or any
department, agency or instrumentality thereof, unless the Company has
complied with the requirements of the Federal Assignment of Claims Act, and
(i) if the Receivables due from any account debtor exceed an
amount equal to 20% of the aggregate of all Receivables at said date, an
amount of such Receivables equal to such excess.
"Environmental Laws" shall mean any and all applicable federal,
state, local and foreign statutes, laws, judicial decisions, regulations,
ordinances, rules, judgments, orders, decrees, codes, plans, injunctions,
permits, concessions, grants, franchises, licenses, agreements and other
governmental restrictions relating to the environment or the effect of the
environment on human health or to emissions, discharges or release of
pollutants, contaminants, Hazardous Substances or wastes into the environment,
including, without limitation, ambient air, surface water, ground water, or
land, or otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of pollutants,
contaminants, Hazardous Substances or wastes or the clean-up or other
remediation thereof.
"Environmental Liabilities" shall mean all liabilities in
connection with or relating to the business, assets, presently or previously
owned or leased property, activities (including, without limitation, off-site
disposal) or operations of the Company and each Subsidiary, whether vested or
unvested, contingent or fixed, actual or potential, known or unknown, which
arise under or relate to matters covered by Environmental Laws (including,
without limitation, any matter disclosed or required to be disclosed in
Schedule VI hereto).
"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, the rate per annum equal to the offered rate for Dollar deposits for a
period of time comparable to the Interest Period for such Loans which appears
on the display page designated
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as the "LIBO Page" on the Reuters Money Rates Service (or such other page as
may replace the LIBO page at that service) at approximately 11:00 A.M., London
time, on the day that is two Business Days before the first day of such
Interest Period, provided that if at least two rates appear on the Reuters
Money Rates Service "LIBO Page", the "Eurodollar Base Rate" applicable to such
Interest Period shall be the arithmetic mean of such rates; or (ii) if no such
rate appears on the Reuters Money Rates Service "LIBO Page" at such time, the
rate per annum at which Dollar deposits are offered by the principal London
office of The Chase Manhattan Bank, N.A. to leading banks in the London
interbank market at approximately 11:00 A.M., London time, on the day that is
two Business Days before the first day of such Interest Period having a term
comparable to such Interest Period and in an amount comparable to the principal
amount of the Eurodollar Loans of The Chase Manhattan Bank, N.A. to which such
Interest Period relates. If no rate can be determined pursuant to clauses (i)
and (ii) above, the provisions of Section 6.02 shall apply.
"Eurodollar Loans" shall mean 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, a rate per
annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) determined 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
Reserve Requirement, if any, for such Loans for such Interest Period.
"Event of Default" shall have the meaning assigned to such term in
Section 10.01 hereof.
"Excess Cash Flow" shall have the meaning assigned to such term in
paragraph (6) of Section 3.02(b)(i) hereof.
"Facilities" shall mean the facilities of the Company and its
Subsidiaries located in West Helena, Arkansas, Vicksburg, Mississippi, Hobbs,
New Mexico, and Memphis, Tennessee.
"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
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to Chase on such day on such transactions as determined by the Administrative
Agent.
"Financing Documents" shall mean this Agreement, the Parent
Guaranty, the Nine West Guaranty, the Subsidiary Guaranty, the Notes and the
Security Documents.
"Foreign Subsidiaries" shall mean the Subsidiaries of the Company
listed under the heading "Foreign Subsidiaries of Cedar Chemical Corporation"
in Schedule IV.
"Funded Indebtedness" shall mean Indebtedness which matures more
than one year after the incurrence thereof or is extendible, renewable or
refundable, at the option of the obligor, to a date more than one year after
the incurrence thereof (including the current portion thereof).
"GAAP" shall mean generally accepted accounting principles as in
effect from time to time in the United States consistently applied.
"Guaranty" by any Person shall mean 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, securities 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 mean any toxic, radioactive, caustic
or otherwise hazardous substance, including petroleum, its derivatives,
by-products and other hydrocarbons, or any substance having constituent
elements displaying any of the foregoing characteristics, whether or not
regulated under Environmental Laws.
"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;
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(ii) obligations of such Person in respect of letters of credit or similar
instruments issued or accepted by banks and other financial institutions for
the account of such Person (whether or not such obligations are contingent);
(iii) Capital Lease Obligations of such Person; (iv) obligations of such Person
to redeem or otherwise retire shares of capital stock of such Person; (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; and (vi)
indebtedness of others of the type described in clause (i), (ii), (iii) or (iv)
above Guaranteed by such Person.
"Information Memorandum" shall mean the Information Memorandum
dated October 1995, submitted to the Lenders in connection with the
transactions contemplated by this Agreement and all materials which the Company
and the Administrative Agent agree on the Closing Date constitute supplements
thereto.
"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), including the interest portion of payments under Capital Lease
Obligations and any capitalized interest, and excluding amortization of debt
discount and expense.
"Interest Period" shall mean, with respect to any Eurodollar
Loans, the period commencing on the date such Loans are made or converted from
Base Rate 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 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. Notwithstanding the foregoing: (i) no Interest
Period may commence before and end after any date set forth in Schedule III
unless, after giving effect thereto, the aggregate principal amount of the
Loans of any Class having Interest Periods which end after such date shall be
equal to or less than the amount of Loans of such Class then permitted to be
outstanding hereunder; (ii) 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, if such next succeeding Business Day falls in the next succeeding calendar
month, on the next preceding Business Day); and (iii) notwithstanding clause
(i) above, no Interest Period shall have a duration of less than one month and,
if the Interest Period therefor would otherwise be a shorter period, such Loans
shall not be available hereunder.
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"Interest Rate Agreement" shall have the meaning assigned to such
term in Section 9.22 hereof.
"Inventory" shall mean inventory (as defined in Article 9 of the
Uniform Commercial Code) to the extent comprised of readily marketable
materials, products or goods of a type manufactured or consumed by the Company
in the ordinary course of business as presently conducted (but excluding
work-in-process which is not readily marketable in its current form).
"Investments" shall have the meaning assigned to such term in
Section 9.15 hereof.
"Letter of Credit" shall have the meaning assigned to such term in
Section 2.02(a) hereof.
"Letter of Credit Liabilities" shall mean, at any time and in
respect of any Letter of Credit, the sum of (i) the amount available for
drawings under such Letter of Credit plus (ii) the aggregate unpaid amount of
all Reimbursement Obligations at the time due and payable in respect of
previous drawings made under such Letter of Credit.
"Leverage Ratio" shall have the meaning set forth in Section 9.10.
"Lien" shall mean, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
asset. For the purposes of this Agreement, the Company and each of its
Subsidiaries 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) 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 from Standard & Poor's Corporation or P-2 from
Moody's Investors Service, Inc.
"Loans" shall mean the loans provided for by Section 2.01 hereof.
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<PAGE> 17
"Material Adverse Effect" means (i) a material adverse effect on
the condition (financial or otherwise), results of operations, assets,
liabilities, business, operations or prospects of the Company and its
Subsidiaries, taken as a whole; (ii) a material adverse effect on the ability
of the Parent, Nine West or any Subsidiary Guarantor to perform its obligations
under each Basic Document to which it is a party; or (iii) a material adverse
effect on the rights and remedies of the Administrative Agent and the Lenders
under the Financing Documents.
"Mortgages" shall mean, collectively, the mortgages, deeds of
trust, leasehold mortgages, leasehold deeds of trust and similar instruments
listed on Schedule II, each in form and substance satisfactory to the
Administrative Agent, executed by the respective mortgagors in favor of the
Administrative Agent for the benefit of the Lenders.
"Multiemployer Plan" shall mean at any time an employee pension
benefit plan within the meaning of Section 4001(a)(3) of ERISA to which the
Company or any member of the Controlled Group is then making or accruing an
obligation to make contributions or has within the preceding five plan years
made contributions, including for these purposes any Person which ceased to be
a member of the Controlled Group during such five year period.
"Net Cash Proceeds" shall mean, in each case as set forth in
reasonable detail in a certificate of a Senior Officer delivered to the
Administrative Agent: (a) with respect to the disposition of any asset by the
Company or any of its Subsidiaries, the excess, if any, of (i) the cash
received (including any cash payments received by way of deferred payment
pursuant to, or monetization of, a note or installment receivable or otherwise,
but only as and when received) in connection with such disposition over (ii)
the sum of (A) the amount of any Indebtedness which is secured by such asset
and which is required to be repaid in connection with the disposition thereof,
plus (B) the reasonable out-of-pocket expenses incurred by the Company or such
Subsidiary, as the case may be, in connection with such disposition, plus (C)
provision for taxes, including income taxes, attributable to the disposition of
such asset; (b) with respect to the issuance of any equity securities or
Indebtedness of the Company or any of its Subsidiaries, the gross proceeds
received from such issuance less all reasonable out-of-pocket expenses,
discounts and commissions and other fees and expenses incurred or to be
incurred and all federal, state, local and foreign taxes assessed or to be
assessed in connection therewith; (c) with respect to the receipt by the
Company or the Administrative Agent of any payment under an insurance policy
described in clause (1) of Section 9.03 hereof or pursuant to any condemnation
award, the aggregate amount of any such payment made to the Company or the
Administrative Agent less any income tax liability of the Company relating to
such payment and all legal expenses incurred in connection with the recovery or
collection
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thereof; and (d) with respect to the termination of any Plan, the excess, if
any, of (i) the amounts received by the Company or any Subsidiary in connection
with such termination over (ii) the amount of taxes payable by such Person in
connection therewith.
"Net Working Investment" shall mean, at any date, the amount by
which Current Assets exceeds Current Liabilities at such date.
"Nine West" shall mean Nine West Corporation, a Delaware
corporation, and its successors.
"Nine West Guaranty" shall mean the Nine West Guaranty dated as of
the Closing Date, in substantially the form of Exhibit L hereto, as said
agreement shall be modified and supplemented and in effect from time to time.
"Notes" shall have the meaning assigned to such term in Section
2.07 hereof.
"Parent" shall mean Trans-Resources, Inc., a Delaware Corporation,
and its successors.
"Parent Guaranty" shall mean the Parent Guaranty dated as of the
Closing Date, in substantially the form of Exhibit K hereto, as said agreement
shall be modified and supplemented and in effect from time to time.
"Participation Letters of Credit" shall have the meaning assigned
to such term in Section 2.02(a).
"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 period commencing on a day
that the consolidated statements of income and cash flow and the consolidated
balance sheet required to be delivered to the Administrative Agent under
Section 9.01(a) or 9.01(b) hereof with respect to a fiscal quarter of the
Company, and the related certificate described in the last paragraph of Section
9.01 hereof, are received by the Administrative Agent and ending on a day
immediately preceding the day on which the next subsequent set of such
information required to be delivered to the Administrative Agent under Section
9.01 hereof with respect to a fiscal quarter of the Company is received by it;
provided that the first Performance Period shall commence on the Closing Date.
"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.
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"Plan" shall mean an employee pension benefit plan (other than a
Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Code and either (i) is
maintained or contributed to, by the Company or any member of the Controlled
Group for employees of the Company or any member of the Controlled Group or
(ii) has at any time within the preceding five years been maintained, or
contributed to, by the Company or any Person which was at such time a member of
the Controlled Group for employees of any Person which was at such time a
member of the Controlled Group.
"Post-Default Rate" shall mean (i) in respect of any principal of
any Loan, a rate per annum equal to the sum of 2% plus the rate of interest
applicable to such Loan and (ii) in respect of any Reimbursement Obligation or
any other amount payable by the Company under this Agreement or any Security
Document, a rate per annum 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 that
are Working Capital 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.
"Receivable" shall mean, as at any date of determination thereof,
the unpaid portion of the obligation, as stated in U.S. Dollars on the
respective invoice, of a customer of the Company or any Subsidiary Guarantor in
respect of Inventory purchased and shipped and services rendered, net of any
credits, rebates or offsets owed to the respective customer and also net of any
commissions payable to third parties.
"Refinancings" shall mean the refinancing by the Company of the
Indebtedness and other obligations specified in Schedule VII.
"Regulated Activity" shall mean any generation, treatment,
storage, recycling, transportation or disposal of any Hazardous Substance.
"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.
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"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.
"Reimbursement Obligations" shall mean as at any date, the
obligations of the Company then outstanding under Section 2.02(e) hereof to
reimburse any Lender in the case of Syndicated Letters of Credit or Chase in
the case of Participation Letters of Credit.
"Release" shall mean any discharge, emission or release, including
a "Release" as defined in CERCLA at 42 U.S.C. Section 9601(22). The term
"Released" shall have a corresponding meaning.
"Relevant Party" shall mean (i) the Company, (ii) the Parent,
(iii) Nine West, (iv) any Subsidiary Guarantor and (v) any other party to any
of the Assigned Agreements.
"Required Class Lenders" shall mean, with respect to any Class of
Lenders, (x) at any time while no Loans or Letter of Credit Liabilities of such
Class of Lenders are outstanding, (i) for the Class of Lenders holding Tranche
A Term Loan Commitments or Working Capital Commitments, Lenders having at least
66 2/3% of the aggregate amount of the sum of the Tranche A Term Loan
Commitments and the Working Capital Commitments and (ii) for the Class of
Lenders holding Tranche B Term Loan Commitments, Lenders having at least 66
2/3% of the aggregate amount of the Tranche B Term Loan Commitments and (y) at
any time while any Loans or Letter of Credit Liabilities (if any) of such Class
of Lenders are outstanding, (i) for the Class of Lenders holding Tranche A Term
Loans or Working Capital Loans or Letter of Credit Liabilities, Lenders holding
at least 66 2/3% of the outstanding aggregate principal amount of the Tranche A
Term Loans, the Working Capital Loans and Letter of Credit Liabilities
(including, without limitation, participations in the Participation Letters of
Credit) and (ii) for the Class of Lenders holding Tranche B Term Loans, Lenders
holding at least 66 2/3% of the outstanding aggregate principal amount of the
Tranche B Term Loans.
"Required Lenders" shall mean, at any time while no Loans or
Letter of Credit Liabilities are outstanding, Lenders having at least 66 2/3%
of the aggregate amount of the Commitments and, at any time while any Loans or
Letter of Credit Liabilities are outstanding, Lenders holding at least 66 2/3%
of the outstanding aggregate principal amount of the Loans and Letter of Credit
Liabilities (including, without limitation, participations in the
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Participation Letters of Credit).
"Reserve Requirement" shall mean, for any Eurodollar 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 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.
"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 capital stock of the Company of the same or
a junior class; provided that payments to the Company or a Wholly-Owned
Subsidiary shall not constitute Restricted Payments.
"Security Documents" shall mean, collectively, the Mortgages and
the other agreements listed on Schedule II hereto; and, from and after the
execution and delivery thereof, shall include any supplemental mortgage or
security document required pursuant to Section 9.19 hereof.
"Senior Officer" shall mean the chief executive officer,
president, chief operating officer, chief financial officer or treasurer of the
Company.
"Senior Subordinated Reset Notes" shall mean the 14.5% Senior
Subordinated Reset Notes due September 30, 1996 issued by the Parent.
"Special Dividend" shall have the meaning set forth in Section
9.16 hereof.
"Special Dividend Borrowing Date" shall mean the date or dates of
the borrowings by the Company hereunder to finance payment by the Company of
the Special Dividends.
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"Special Dividend Documents" shall mean all agreements, documents
and instruments to be executed and delivered pursuant to or in connection with
the payment of the Special Dividends; including without limitation any escrow
agreement to be executed pursuant to Section 9.16(i)(z)(B).
"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.
"Subsidiary Guarantor" shall mean each of the following
Subsidiaries of the Company: Vicksburg Chemical Company, a Delaware
corporation, New Mexico Potash Corporation, a New Mexico corporation, Cedar
International and each other Subsidiary of the Company that from time to time
becomes a party to the Subsidiary Guaranty.
"Subsidiary Guaranty" shall mean the Subsidiary Guaranty dated as
of the Closing Date, in substantially the form of Exhibit H hereto, as said
agreement shall be modified and supplemented and in effect from time to time.
"Syndicated Letters of Credit" shall have the meaning assigned to
such term in Section 2.02(a) hereof.
"Tax Sharing Agreement" shall mean the tax sharing agreement dated
as of December 30, 1991 among the Company, the Parent, Nine West, TPR
Investment Associates, Inc., a Delaware corporation, Eddy Potash, Inc., a
Delaware corporation and TR Media Corporation, a Delaware corporation.
"Term Loan" shall mean, as to any Lender, a Tranche A Term Loan or
Tranche B Term Loan made by such Lender pursuant to Section 2.01(i) or 2.01(ii)
hereof, as the case may be, or both.
"Tranche A Term Loan" shall mean, as to any Lender, a Loan made by
such Lender pursuant to Section 2.01(i) hereof.
"Tranche A Term Loan Availability Period" shall mean the period
from and including the Closing Date to and including September 30, 1996.
"Tranche A Term Loan Commitment" shall mean, as to any Lender, the
obligation of such Lender to make a Tranche A Term Loan to the Company in a
principal amount up to but not exceeding the
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amount set forth opposite such Lender's name on the signature pages hereof under
the caption "Tranche A Term Loan Commitment" (as the same may be reduced from
time to time pursuant to Section 2.03).
"Tranche A Term Loan Commitment Percentage" shall mean, as to any
Lender, the percentage equivalent of a fraction the numerator of which is the
Tranche A Term Loan Commitment of such Lender and the denominator of which is
the aggregate amount of the Tranche A Term Loan Commitments of all Lenders.
"Tranche A Term Notes" shall mean the promissory notes of the
Company evidencing the Tranche A Term Notes, substantially in the form of
Exhibit A hereto.
"Tranche B Term Loan" shall mean, as to any Lender, a Loan made by
such Lender pursuant to Section 2.01(ii) hereof.
"Tranche B Term Loan Commitment" shall mean, as to any Lender, the
obligation of such Lender to make a Tranche B Term Loan to the Company in a
principal amount up to but not exceeding the amount set forth opposite such
Lender's name on the signature pages hereof under the caption "Tranche B Term
Loan Commitment" (as the same may be reduced from time to time pursuant to
Section 2.03).
"Tranche B Term Notes" shall mean the promissory notes of the
Company evidencing the Tranche B Term Loans, substantially in the form of
Exhibit B hereto.
"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 (i) the value of all benefits
liabilities under such Plan, determined on a plan termination basis using the
assumptions prescribed by the PBGC for purposes of Section 4044 of ERISA,
exceeds (ii) the fair market value of all Plan assets allocable to such
benefits under Title IV of ERISA (excluding any accrued but unpaid
contributions), all determined as of the then most recent valuation date for
such Plan, but only to the extent that such excess represents a potential
liability of the Company or any member of the Controlled Group to the PBGC or
any other Person 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 Closing Date to but not including October 31, 2001.
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"Working Capital Commitment" shall mean, as to any Lender, the
obligation of such Lender to make Working Capital Loans and incur Letter of
Credit Liabilities 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 hereof 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, a Loan made
by such Lender pursuant to Section 2.01(iii) hereof.
"Working Capital Notes" shall mean the promissory notes of the
Company evidencing the Working Capital Loans, substantially in the form of
Exhibit C 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 amount of the Letter of Credit
Liabilities 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
Required 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 and Lenders. Loans
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hereunder are distinguished by "Class" and by "Type", and Lenders hereunder are
distinguished by "Class". The "Class" of a Loan (or of a Commitment to make
such a Loan) refers to the determination whether such Loan is a Tranche A Term
Loan, a Tranche B Term Loan or a Working Capital Loan, each of which
constitutes a Class of Loan. The "Class" of a Lender refers to the
determination whether such Lender holds Tranche A Term Loans or Working Capital
Loans (or Commitments to make any such Class of Loans), on the one hand, or
Tranche B Term Loans (or Tranche B Term Loan Commitments), on the other hand,
each of which constitutes a Class. The "Type" of a Loan refers to the
determination whether such Loan is a Eurodollar Loan or a Base Rate Loan.
Identification of a Loan may be by both Class and Type (e.g., a "Eurodollar
Working Capital Loan" indicates that such Loan is both a Eurodollar Loan and a
Working Capital Loan).
Section 2. Commitments.
2.01 Loans. Each Lender severally agrees, on the
terms and subject to the conditions of this Agreement, to make Loans as
follows:
(i) Tranche A Term Loans. On a single Business Day
designated by the Company in accordance with Section 5.05 as the Closing
Date, each Lender shall make a Loan to the Company in an amount equal to
its Tranche A Term Loan Commitment Percentage of $15,000,000. At any time
during the Tranche A Term Loan Availability Period, each Lender shall on a
single Business Day or any two Business Days designated by the Company in
accordance with Section 5.05 as a Special Dividend Borrowing Date, make a
Loan to the Company in an amount equal to its Tranche A Term Loan
Commitment Percentage of $10,000,000, in the case of a Loan made to the
Company on a single such designated Business Day, or make a Loan to the
Company in an amount equal to its Tranche A Term Loan Commitment Percentage
of $5,000,000, in the case of a Loan made to the Company on each of two
such designated Business Days.
(ii) Tranche B Term Loans. On a single Business Day
designated by the Company in accordance with Section 5.05 as the Closing
Date, each Lender shall make a Loan to the Company in an amount equal to
its Tranche B Term Loan Commitment.
(iii) Working Capital Loans. From time to time during
the Working Capital Availability Period, each Lender shall make Loans to
the Company in an aggregate principal amount at any one time outstanding
which, together with an amount equal to its Working Capital Commitment
Percentage of all Letter of Credit Liabilities at such time in respect of
Syndicated Letters of Credit and Participation Letters of Credit, shall not
exceed its Working Capital Commitment, as reduced from time to time
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pursuant to Section 2.03 hereof. The aggregate amount of all Working Capital
Obligations shall not at any time exceed the lesser of (i) the aggregate of the
Working Capital Commitments as reduced from time to time pursuant to Section
2.03 hereof and (ii) the Borrowing Base.
2.02 Letters of Credit. (a) Subject to the terms and
conditions hereof, the Working Capital Commitments may, in addition to the
Working Capital Loans provided for in Section 2.01 hereof, be utilized, upon the
request of the Company, by the issuance of letters of credit (i) by Chase for so
long as it is Administrative Agent hereunder if the Company shall so request in
the notice referred to in Section 2.02(b) and Chase shall agree that such letter
of credit shall be issued by Chase rather than by each of the Lenders (such
letters of credit issued by Chase being hereinafter referred to as the
"Participation Letters of Credit"), or (ii) by the Lenders pursuant to which
each Lender shall be severally obligated to pay its Working Capital Commitment
Percentage of any drawing made thereunder (such letters of credit issued by the
Lenders being hereafter referred to as the "Syndicated Letters of Credit", and
the Syndicated Letters of Credit and Participation Letters of Credit being
collectively referred to as the "Letters of Credit"). Upon the date of issuance
of a Participation Letter of Credit, Chase shall be deemed, without further
action by any party hereto, to have sold to each Lender, and each Lender shall
be deemed, without further action by any party hereto, to have purchased from
Chase, a participation to the extent of such Lender's Working Capital Commitment
Percentage in such Participation Letter of Credit and the related Letter of
Credit Liabilities. The aggregate amount of all Working Capital Obligations
shall not at any time exceed the lesser of (i) the aggregate of the Working
Capital Commitments as reduced from time to time pursuant to Section 2.03 hereof
and (ii) the Borrowing Base. The aggregate amount of all Letter of Credit
Liabilities shall not at any time exceed an amount equal to the lesser of (i)
the aggregate amount of the Working Capital Commitments as reduced from time to
time pursuant to Section 2.03 hereof and (ii) $7,500,000.
(b) The Company shall give the Administrative Agent at least
seven Business Days' (in the case of Syndicated Letters of Credit) or three
Business Days' (in the case of Participation Letters of Credit) irrevocable
prior notice (effective upon receipt) specifying the date such Letter of Credit
is to be issued, whether it is requesting that such Letter of Credit be a
Participation Letter of Credit or a Syndicated Letter of Credit, and describing
the proposed terms of such Letter of Credit and the nature of the transactions
proposed to be supported thereby. Upon receipt of such notice the
Administrative Agent shall promptly notify each Lender of the contents thereof
and of such Lender's Working Capital Commitment Percentage of the amount of such
proposed Letter of Credit and, in the case of Syndicated Letters of
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Credit, not later than five Business Days prior to the requested issuance date
for such Letter of Credit shall prepare and send to the Lenders and the Company
a proposed form of such Letter of Credit.
(c) On each day during the period commencing with the issuance
by the Lenders of any Syndicated Letter of Credit or the issuance by Chase of
any Participation Letter of Credit and until such Letter of Credit shall have
expired or been terminated, the Working Capital Commitment of each Lender shall
be deemed to be utilized for all purposes hereof in an amount equal to such
Lender's Working Capital Commitment Percentage of the amount then available for
drawings under such Syndicated Letter of Credit or Participation Letter of
Credit (as the case may be).
(d) Upon receipt from the beneficiary of any Letter of Credit
of any demand for payment or other drawing under such Letter of Credit, the
Administrative Agent shall promptly notify the Company and each Lender as to the
amount to be paid as a result of such demand or drawing and the respective
payment date. If at any time Chase shall make a payment to a beneficiary of a
Participation Letter of Credit in respect of a drawing or in respect of an
acceptance created in connection with a drawing under such Participation Letter
of Credit, each Lender will pay to Chase, immediately upon Chase's demand at any
time during the period commencing after such payment until reimbursement
therefor in full by the Company, an amount equal to such Lender's Working
Capital Commitment Percentage of such payment, together with interest on such
amount for each day from the date of Chase's demand for such payment (or, if
such demand is made after 11:00 a.m. (New York City time) on such date, from the
next succeeding Business Day) to the date of payment by such Lender of such
amount at a rate of interest per annum equal to the Federal Funds Rate for such
period.
(e) The Company shall be irrevocably and unconditionally
obligated forthwith to reimburse (x) the Administrative Agent for the account
of each Lender in the case of Syndicated Letters of Credit, and (y) Chase in
the case of Participation Letters of Credit for any amounts paid by such Lender
or Chase (as the case may be) upon any drawing under any Letter of Credit,
without presentment, demand, protest or other formalities of any kind. Chase
will pay to each Lender such Lender's Working Capital Commitment Percentage of
all amounts received from the Company for application in payment, in whole or
in part, of the Reimbursement Obligation in respect of any Participation Letter
of Credit, but only to the extent such Lender has made payment to Chase in
respect of such Participation Letter of Credit pursuant to clause (d) above.
(f) The issuance by the Lenders of each Syndicated Letter
of Credit or the issuance by Chase of each Participation Letter of Credit
shall, in addition to the conditions precedent set
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forth in Section 7 hereof, be subject to the conditions precedent (x) that in
the case of a Syndicated Letter of Credit, such Letter of Credit shall be in
such form, contain such terms and support such transactions as shall be
reasonably satisfactory to each Lender and the Administrative Agent and that
the Company shall have executed and delivered such other instruments and
agreements relating to such Letter of Credit as the Required Lenders shall have
reasonably requested, and (y) that in the case of Participation Letters of
Credit, such Letter of Credit shall be in such form, and shall contain such
terms and support such transactions, as shall be reasonably satisfactory to
Chase, and that the Company shall have executed and delivered such other
instruments and agreements relating to such Letter of Credit as Chase shall
have reasonably requested. No Letter of Credit shall have a term extending
beyond the earlier of (i) one year from the date of issuance and (ii) seven
Business Days prior to the last day of the Working Capital Availability Period.
A Lender shall be deemed to have determined that a proposed Syndicated Letter
of Credit is satisfactory unless it shall have notified the Administrative
Agent otherwise (which notice shall be effective upon receipt) on or before the
date three Business Days prior to the requested date of issuance of such
Syndicated Letter of Credit. If any Lender shall breach its obligation to
execute and deliver a Syndicated Letter of Credit hereunder, the other Lenders
shall be relieved of their obligation to execute and deliver and issue such
Syndicated Letter of Credit, provided that nothing herein shall affect any
rights the Company may have against the breaching Lender as a result of such
breach.
(g) The Company hereby indemnifies and holds harmless each
Lender and the Administrative Agent (which for purposes of this Section 2.02(g)
shall include a reference to Chase acting in its individual capacity hereunder
as issuer of Participation Letters of Credit) from and against any and all
claims and damages, losses, liabilities, costs or expenses which such Lender or
the Administrative Agent may incur (or which may be claimed against such Lender
or the Administrative Agent by any Person whatsoever) by reason of or in
connection with the execution and delivery or transfer of or payment or failure
to pay under any Letter of Credit, including, without limitation, any claims,
damages, losses, liabilities, costs or expenses which the Administrative Agent
may incur by reason of or in connection with the failure of any other Lender to
fulfill or comply with its obligations to the Administrative Agent hereunder
(but nothing herein contained shall affect any rights the Company may have
against such defaulting Lender); provided that the Company shall not be
required to indemnify any Lender or the Administrative Agent for any claims,
damages, losses, liabilities, costs or expenses to the extent, but only to the
extent, caused by (i) the willful misconduct or gross negligence of such Lender
or the Administrative Agent in determining whether a request presented under
any Letter of Credit complied with the terms of such Letter of Credit or (ii)
such
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Lender's failure to pay under any Letter of Credit after the presentation to it
of a request strictly complying with the terms and conditions of the Letter of
Credit. Nothing in this Section 2.02(g) is intended to limit the obligations
of the Company under any other provision of this Agreement.
2.03 Reductions of Commitments.
(a) Mandatory. (i) The Working Capital Commitments
shall terminate on the last day of the Working Capital Availability
Period; provided, that if the Closing Date shall not have occurred by
November 15, 1995, the Working Capital Commitments shall terminate on
such date.
The Tranche A Term Loan Commitments (x) shall be
reduced to $10,000,000 on the Closing Date (after the making of the
Tranche A Term Loans provided for in Section 2.01(i)) and (y) shall
terminate on the last day of the Tranche A Term Loan Availability Period;
provided, that if the Closing Date shall not have occurred by November 15,
1995, the Tranche A Term Loan Commitments shall terminate on such date.
The Tranche B Term Loan Commitments shall terminate
on the Closing Date; provided, that if the Closing Date shall not have
occurred by November 15, 1995, the Term Commitments shall terminate on
such date.
In addition, the Working Capital Commitments shall be
reduced in the amount and on the date of each prepayment applied to the
Working Capital Loans (or to provide cover for Letter of Credit
Liabilities) pursuant to paragraph (2), (3), (4), (5) or (6) of Section
3.02(b).
(b) Optional. The Company shall have the right to
terminate or reduce the Commitments of any Class 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 of any Class shall be in an
aggregate amount at least equal to $1,000,000.
(c) No Reinstatement. Commitments once terminated or
reduced may not be reinstated.
2.04 Fees.
(a) Commitment Fees. The Company shall pay to the
Administrative Agent for the account of each Lender commitment fees on the
daily average unused amount of such Lender's Commitments, for the period from
the Closing Date to and including the earlier of the date the Commitments are
terminated or, in the case of the Working Capital Commitments, the last day
of the Working Capital
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Availability Period at a rate per annum equal to 1/2 of 1%. Accrued
commitment fees shall be payable on the Quarterly Dates and on the earlier of
the date the Commitments are terminated or, in the case of the Working
Capital Commitments, the last day of the Working Capital Availability Period.
(b) Letter of Credit Fees.
The Company shall pay to the Administrative Agent for the account of each
Lender, ratably in accordance with its Working Capital Commitment
Percentage, a letter of credit fee at a rate per annum equal to the
Applicable Margin for Letters of Credit on the daily aggregate amount
available for drawings under each Letter of Credit. In the case of each
Participation Letter of Credit, the Company shall pay to Chase, as issuer of
such Letters of Credit and for its own account, an additional letter of
credit fee at the rate of 1/4 of 1% per annum on the daily aggregate amount
available for drawings under such Participation Letter of Credit. Fees
under this subsection (b)(i) shall accrue for each day from and after the
issuance of the initial Letter of Credit, and accrued fees shall be payable
on each Quarterly Date and on the earlier of the date the Working Capital
Commitments are terminated or the last day of the Working Capital
Availability Period and, if later, on the first day thereafter on which no
Letters of Credit are outstanding.
The Company shall pay to Chase, for its own account, such documentary,
processing charges and administrative fees with respect to all Letters of
Credit in such amounts and at such times as may be notified to the Company
by Chase, in accordance with the customary practices of Chase.
(c) Other Fees. The Company shall pay to the
Administrative Agent on the Closing Date other fees in the amounts heretofore
mutually agreed. The Company shall pay to the Administrative Agent, so long
as any of the Commitments are in effect and until payment in full of all
Loans hereunder, the termination of all Letters of Credit and payment in full
of all Letter of Credit Liabilities, all interest thereon and all other
amounts payable hereunder, a periodic administrative agency fee on the dates
and in the amount heretofore mutually agreed.
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.
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2.07 Notes. The Loans of each Class made by each Lender
shall be evidenced by a single Tranche A Term Note, Tranche B Term Note or
Working Capital Note of the Company (each a "Note") in substantially the form
of Exhibit A, B or C hereto, as the case may be, dated the Closing Date,
payable to the order of such Lender in a principal amount equal to such
Lender's Commitment of such Class as originally in effect and otherwise duly
completed. 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 and Type of and the Interest Period
(if any) for each Loan of the relevant Class made by such Lender to the
Company hereunder, 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 or any error in such endorsement
shall not affect the obligations of the Company under such Note or hereunder
in respect of such Loan.
2.08 Use of Proceeds. The proceeds of the Term Loans and a
portion of the Working Capital Loans shall be used to finance the
Refinancings and the payment of related fees and expenses and, after approval
by the Company's Board of Directors, the payment of the Special Dividends.
The proceeds of the remainder of the Working Capital Loans shall be used by
the Company for working capital and other general corporate purposes.
Section 3. Borrowings, Conversions and Prepayments.
3.01 Borrowings. The Company shall give the Administrative
Agent notice of each borrowing 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 hereunder, 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.
3.02 Prepayments and Conversions.
(a) Optional Prepayments and Conversions. The Company
shall have the right to prepay Loans or to convert Loans of one Type into
Loans of the other Type, at any time or from time to time, provided that: (i)
the Company shall give the Administrative Agent notice of each such
prepayment or conversion as provided in Section 5.05 hereof, (ii) no Loans
shall be converted into Eurodollar Loans prior to the third Business Day
after the Closing Date, and (iii) except to the extent required pursuant to
Section
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3.02(b) or 6.04 hereof, Eurodollar Loans may be prepaid or converted only on
the last day of an Interest Period for such Loans.
(b) Mandatory Prepayments and Cover. (i) Events
Requiring Prepayment and Cover.
(1) Borrowing Base and Commitment Amount. The Company
shall from time to time prepay the Working Capital Loans (or provide
cover for Letter of Credit Liabilities as provided below) in such
amounts as shall be necessary so that at all times the aggregate
outstanding amount of the Working Capital Obligations shall be less
than or equal to the lesser of (i) the Working Capital Commitments and
(ii) the Borrowing Base.
(2) Insurance Proceeds and Condemnation Awards. Promptly
following the receipt thereof by the Company or any of its
Subsidiaries, the Company shall deposit with the Administrative Agent
in the Collateral Account maintained by the Company pursuant to the
Security Documents an amount of cash or Liquid Investments equal to the
aggregate Net Cash Proceeds (if greater than $50,000) of any payment
made to the Company or any of its Subsidiaries (i) under any insurance
policy described in clause (1) of Section 9.03 hereof or (ii) pursuant
to any condemnation award. With respect to any such payment or award,
so long as no Default has occurred and is continuing, the aggregate
amount of such Net Cash Proceeds which the Company or such Subsidiary
has expended or committed to expend for the restoration or replacement
of the asset in respect of which such payment or award was made shall
be released by the Administrative Agent to the Company upon request to
pay for such restoration or replacement; provided that in the event
that within 180 days of receipt of such payment the Company or such
Subsidiary shall not have expended or committed to expend an equivalent
amount for the restoration or replacement of the asset in respect of
which such payment was made, the excess of the amount of such payment
over the amount of such expenditures and commitments shall be applied
to prepay the Loans (or provide cover for Letter of Credit Liabilities
as provided below) on such 180th day.
(3) Issuance of Capital Stock or Incurrence of
Indebtedness. The Company shall prepay the Loans (or provide cover for
Letter of Credit Liabilities as provided below) in the amount of and on
the date of each receipt by the Company or any of its Subsidiaries of
(i) 50% of the Net Cash Proceeds from the issuance subsequent to the
Closing Date of common stock by the Company or any of
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its Subsidiaries (upon the exercise of options or otherwise), (ii) 100%
of the Net Cash Proceeds from the issuance subsequent to the Closing
Date of capital stock other than common stock by the Company or any of
its Subsidiaries (upon the exercise of options or otherwise) or (iii)
100% of the Net Cash Proceeds from the incurrence of any Funded
Indebtedness not otherwise permitted under Section 9.08 to which the
Required Lenders have consented.
(4) Asset Dispositions. The Company shall prepay the
Loans (or provide cover for Letter of Credit Liabilities as provided
below) in the amount of and on the date of each receipt by the Company
or any of its Subsidiaries of the Net Cash Proceeds of any disposition
by such Person of assets (except for inventory sold in the ordinary
course of business) to the extent the aggregate amount of such Net Cash
Proceeds exceeds $500,000 during any fiscal year; provided that the
amount of any prepayment with respect to Net Cash Proceeds received by
the Company or any Subsidiary of the Company from the disposition by
such Person of any division or Subsidiary of such Person to which the
Required Lenders (or, to the extent required by Section 12.05, all the
Lenders) have consented shall not exceed the Threshold Amount. For the
purposes of this section, "Threshold Amount" shall mean that portion
(if any) of the Net Cash Proceeds received by the Company or any of its
Subsidiaries from any disposition by such Person of any division or
Subsidiary of such Person which, if applied to prepay the Loans
outstanding, would result in a Leverage Ratio (calculated as of the
date of receipt of such Net Cash Proceeds and after giving pro forma
effect to such asset disposition as if such disposition had occurred on
the first day of the four fiscal quarters included in the calculation
of such Leverage Ratio) equal to (i) in the case of any such asset
disposition occurring on or before the first anniversary of the Closing
Date hereof, 3.0 to 1.0, (ii) in the case of any such asset disposition
occurring after the first anniversary of the Closing Date hereof but on
or before the second anniversary of the Closing Date hereof, 2.5 to 1.0
and (iii) in the case of any such asset disposition occurring after the
second anniversary of the Closing Date hereof, 2.0 to 1.0. So long as
the Net Cash Proceeds of any such asset disposition are less than the
Threshold Amount, the Company shall prepay the Loans (or provide cover
for Letter of Credit Liabilities as provided below) in the amount equal
to 100% of such Net Cash Proceeds.
(5) Reversion of Pension Plans. The Company shall prepay
the Loans (or provide cover for Letter of Credit Liabilities as
provided below) in the amount of and on the date of each receipt by the
Company or any of its Subsidiaries of Net Cash Proceeds from the
termination of a Plan.
(6) Excess Cash Flow. If for any fiscal year commencing
with the fiscal year ending on December 31, 1996, (x) the sum of (A)
Adjusted Cash Flow for such period plus (B) the amount of any decrease
in Net Working Investment during such period
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exceeds (y) the sum of (i) Interest Expense for such period, (ii) the
maximum amount of Capital Expenditures permitted to be made pursuant to
Section 9.19 during such period (without giving effect to the proviso
set forth in Section 9.19), (iii) the aggregate principal amount of
payments during such period of Term Loans pursuant to Section 3.02(a)
or 4.01(a) and Working Capital Loans (to the extent such payments are
made pursuant to clause (i) of paragraph (1) above after repayment in
full of the Term Loans) and (iv) the amount of any increase in Net
Working Investment during such period, then the Company shall, on the
first Quarterly Date following the end of such period, prepay the Loans
(or provide cover for Letter of Credit Liabilities as provided below)
in an amount equal to 75% of such excess ("Excess Cash Flow"); provided
that if the Company has disposed of substantially all of the assets or
capital stock of any Subsidiary or division of the Company during such
period, the calculation of any increase or decrease in Net Working
Investment during such period shall be made assuming that such
disposition had occurred on the first day of such period.
(ii) Order of Prepayments and Cover. Any prepayment pursuant to
paragraph (2), (3), (4) (unless such prepayment is with respect to Net Cash
Proceeds received by the Company or any of its Subsidiaries from the
disposition by such Person of any division of or Subsidiary of such Person
and is in an amount equal to the Threshold Amount (a "Subsidiary Sale")),
(5) or (6) of clause (b)(i) above shall be applied, first, to the Term
Loans and second, to the Working Capital Loans or Letter of Credit
Liabilities. Any prepayment pursuant to paragraph (4) of clause (b)(i)
above with respect to a Subsidiary Sale and in an amount equal to the
Threshold Amount shall be applied to all the Loans (or Letter of Credit
Liabilities).
(iii) Prepayment and Cover of Working Capital Obligations.
If the Company shall be required pursuant to paragraphs (1) through (6) of
clause (b)(i) and clause (b)(ii) above to prepay any Working Capital Loans
or provide cover for any Letter of Credit Liabilities, the Company shall,
until the relevant Working Capital Loans have been paid in full, first
prepay the principal of such Loans and then, following such payment in
full, provide cover for the relevant Letter of Credit Liabilities. Cover
for Letter of Credit Liabilities shall be effected by paying all
Reimbursement Obligations then due and payable and then paying to the
Administrative Agent immediately available funds, to be held by the
Administrative Agent in the Collateral Account maintained by the Company
pursuant to the Security Documents, in an amount equal to the required
prepayment, which amount shall be retained by the Administrative Agent in
such Collateral Account and applied to pay any Reimbursement Obligations
which become due until such time as the Letters of Credit shall have been
terminated and all of the Letter of Credit Liabilities paid
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in full.
Section 4. Payments of Principal and Interest.
4.01 Repayment of Loans.
(a) The Term Loans shall mature in installments in the
respective aggregate amounts and on the dates set forth in Schedule
III.
(b) The Working Capital Loans shall mature on October 31,
2001.
(c) Any prepayment of the Term Loans pursuant to Section
3.02(a) or paragraph (2), (3), (4), (5) or (6) of Section 3.02(b)(i)
shall be applied to reduce ratably all future installments of Term
Loans required pursuant to clause (a) above, unless the provisions of
paragraph (d) of this Section apply.
(d) If the Company prepays any Loans pursuant to Section
3.02(a) or Section 3.02(b)(i)(2), (3), (4), (5) or (6) hereof, the
Company shall, so long as both Tranche A Term Loans and Tranche B Term
Loans remain outstanding, provide at least two Business Days' prior
notice to the Administrative Agent (which notice shall specify the
aggregate principal amount of Loans to be prepaid and the date fixed
for such prepayment), of such prepayment. Upon receipt of any such
notice from the Company to the Administrative Agent, the Administrative
Agent shall send a notice (an "Election Notice") to each Lender holding
Tranche B Loans (which notice shall specify the prepayment amount, such
Lender's ratable share in respect of such Lender's Tranche B Loans of
such prepayment and the date fixed for prepayment). If any such Lender
notifies the Administrative Agent not later than 12:00 noon on the
Business Day prior to the date fixed for prepayment in such Election
Notice that such Lender elects not to have such Lender's ratable share
of such prepayment applied to the prepayment of its Tranche B Loans,
such ratable share shall be applied to prepay ratably the Tranche A
Term Loans outstanding on the date of such prepayment.
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; and
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(b) if such Loan is a Eurodollar Loan, the Eurodollar Rate
plus the Applicable Margin.
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 the principal of any Loan made by such Lender, on any
Reimbursement Obligation 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), (x) which shall not be paid
in full when due (whether at stated maturity, by acceleration or otherwise) or
(y) upon the occurrence and during the continuation of an Event of Default, for
the period commencing on the due date thereof or date of occurrence of such
Event of Default until the same is paid in full or such Event of Default has
been waived or cured.
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, on the last day of the Interest Period for such Loan (and, if
such Interest Period exceeds three months' duration, 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 Required 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 or other
obligation payable to any Lender (the "Stated Rate") 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 or other obligation payable to such Lender
hereunder shall be limited to the Maximum Rate for such Lender.
If 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.
If, 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
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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.
If 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, Reimbursement Obligations
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 to amounts then due, 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
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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 hereof
shall be made from the Lenders, each payment of commitment fees and letter of
credit fees under Section 2.04 hereof shall be made for the account of the
Lenders, and each termination or reduction of the Commitments under Section 2.03
hereof shall be applied to the Commitments of the Lenders, pro rata according to
the Lenders' respective percentages of the Tranche A Term Commitments, the
Tranche B Term Commitments or Working Capital Commitments, as the case may be;
(b) each payment by the Company of principal of or interest on Loans of a
particular Class and Type (other than payments in respect of 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 Loans held by the Lenders; (c) each conversion
of Loans of a particular Type (other than conversions of 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 Loans held
by the Lenders; (d) each Syndicated Letter of Credit will be issued by the
Lenders severally and ratably among the Lenders in accordance with their
respective Working Capital Commitment Percentages; and (e) the Lenders (other
than Chase) shall purchase from Chase participations in the Participation
Letters of Credit to the extent of their respective Working Capital Commitment
Percentages.
5.03 Computations. Interest based on the Prime Rate
hereunder shall be computed on the basis of a year of 365 days (or 366 days in a
leap year) and actual days elapsed (including the first day but, excluding the
last day) occurring in the period for which payable. All other interest and all
fees shall be computed on the basis of a year of 360 days and actual days
elapsed (including the first day but, except in the case of letter of credit
fees, excluding the last day) occurring in the period for which payable.
5.04 Minimum and Maximum Amounts; Types. Except for
prepayments made pursuant to Section 3.02(b) hereof, each borrowing, conversion
and prepayment of principal of Loans shall be in an aggregate principal amount
equal to (a) in the case of Eurodollar Loans, $1,000,000 or any larger multiple
thereof, and (b) in the case of Base Rate Loans, $500,000 or any multiple of
$100,000 greater than $500,000, except that any borrowing may be in the
aggregate amount of the unused portion of each Class of Commitment (borrowings,
conversions or prepayments of Loans of different Classes or Types or, in the
case of Eurodollar Loans, having different Interest Periods, at the same time
hereunder to be deemed separate borrowings, conversions and prepayments for
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purposes of the foregoing, one for each Class, Type or Interest Period).
Notwithstanding anything to the contrary contained in this Agreement there
shall not be, at any one time, more than five Interest Periods in effect with
respect to Eurodollar Loans, and all Eurodollar Loans made before the third
Business Day after the Closing Date shall be made as Base Rate Loans.
5.05 Certain Notices. Notices to the Administrative Agent of
terminations or reductions of 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 12:00 noon New York time on the number of Business Days prior to
the date of the relevant termination, reduction, borrowing, conversion and/or
prepayment (subject to Section 4.01(d) hereof) specified below:
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<PAGE> 40
<TABLE>
<CAPTION>
Number of
Business
Notice Days Prior
<S> <C>
Termination or reduction
of Commitments 3
Borrowing or prepayment
of Base Rate Loans 1
Borrowing or prepayment
of, conversion of or into,
or duration of Interest
Period for, Eurodollar Loans 3
Prepayments of Eurodollar
Loans required pursuant
to Section 3.02(b) 1
</TABLE>
provided, however, that, for purposes of the borrowing of the initial Loans
hereunder, notice of such borrowing shall be effective if received by the
Administrative Agent not later than 10:00 a.m. New York time on the date of
such borrowing. Each notice of termination or reduction shall specify the
amount of the Commitments of each Class to be terminated or reduced. Each
notice of borrowing, conversion or prepayment shall specify the amount, Class
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 proceeds of a drawing to be paid by such Lender under any Syndicated
Letter of Credit or the payment of any amount by such Lender to reimburse Chase
for a drawing under any Participation Letter of Credit) or
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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 (or, if such recipient is the beneficiary of a Letter
of Credit, the Company and, if the Company fails to pay the amount thereof to
the Administrative Agent forthwith upon demand, the Lenders ratably in
proportion to their respective Working Capital Percentages) 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 receives 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 may otherwise have, each 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 any
Reimbursement Obligation 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 shall obtain payment
of any principal of or interest on any Loan made by it under this Agreement, or
on any Reimbursement Obligation 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, it shall promptly purchase from the
other Lenders participations in the Loans made, or Reimbursement Obligations 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 Loans and
Reimbursement Obligations 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
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a participation in the Loans made, or Reimbursement Obligations 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 and Reimbursement Obligations 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.
5.08 Taxes. (a) Any and all payments by the Company
hereunder shall be made, in accordance with Section 5.01, free and clear of and
without deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
excluding, in the case of each Lender and the Administrative Agent, taxes
imposed on its income, and franchise taxes imposed on it, by the jurisdiction
under the laws of which such Lender or the Administrative Agent (as the case may
be) is organized or any political subdivision thereof and, in the case of each
Lender, taxes imposed on its income, and franchise taxes imposed on it, by the
jurisdiction of such Lender's Applicable Lending Office or any political
subdivision thereof (all such non-excluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities being hereinafter referred to as "Taxes").
If the Company shall be required by law to deduct any Taxes from or in respect
of any sum payable hereunder to any Lender or the Administrative Agent, (i)
except as provided in subsection (g) below, the sum payable shall be increased
as may be necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section 5.08), such
Lender or the Administrative Agent (as the case may be) receives an amount equal
to the sum it would have received had no such deductions been made, (ii) the
Company shall make such deductions and (iii) the Company shall pay the full
amount deducted to the relevant taxation authority or other authority in
accordance with applicable law.
(b) In addition, the Company agrees to pay any present or
future stamp or documentary taxes or any other excise or property taxes,
charges or similar levies that arise from any payment made hereunder or from
the execution, delivery or registration of, or otherwise with respect to, this
Agreement, any Letter of Credit or any other Basic Document or other document
referred to herein or therein (hereinafter referred to as "Other Taxes").
(c) The Company will indemnify each Lender and the
Administrative Agent for the full amount of Taxes or Other Taxes (including
related penalties, interest and expenses) imposed by any jurisdiction on
amounts payable under this Section 5.08 paid by
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such Lender or the Administrative Agent (as the case may be) and any liability
(including penalties, interest and expenses) arising therefrom or with respect
thereto, whether or not such Taxes or Other Taxes were correctly or legally
asserted. This indemnification shall be made within 30 days from the date such
Lender or the Administrative Agent (as the case may be) makes written demand
therefor.
(d) Within 30 days after the date of any payment of Taxes,
the Company will furnish to the Administrative Agent, at its address referred
to in Section 12.02, the original or a certified copy of a receipt evidencing
payment thereof.
(e) If any Lender subsequently receives from a taxing
authority a refund of any Tax previously paid by the Company and for which the
Company has indemnified the Lender pursuant to this Section 5.08, such Lender
shall within 30 days after receipt of such refund, and to the extent permitted
by applicable law, pay to the Company the net amount of any such recovery after
deducting taxes and expenses attributable thereto.
(f) Not later than the Closing Date or, in the case of any
bank or financial institution that becomes a Lender after the Closing Date
pursuant to Section 12.06, the date of the instrument of assignment pursuant to
which such bank or financial institution became a Lender, and annually
thereafter or at such other times as the Administrative Agent or the Company
may request, each Lender organized under the laws of a jurisdiction outside the
United States shall provide the Administrative Agent and the Company (i) with
duly completed copies of Form 1001 or Form 4224 or (ii) if such Lender is not
treated as a "bank" under Section 881(c)(3)(A) of the Code and is claiming
exemption from United States withholding taxes under Section 881(c) of the
Code, with a statement under penalties of perjury that it is not a "bank" under
Section 881(c)(3)(A) of the Code, is not a 10- percent shareholder within the
meaning of Section 881(c)(3)(B) of the Code, and is not a controlled foreign
corporation receiving interest from a related person within the meaning of
Section 881(c)(3)(C) of the Code, and with duly completed copies of Form W-8,
or in each case any successor form prescribed by the Internal Revenue Service
of the United States certifying as to such Lender's status as exempt from
United States withholding taxes with respect to all payments to be made to such
Lender hereunder or other documents satisfactory to the Company and the
Administrative Agent indicating that all payments to be made to such Lender
hereunder are not subject to such taxes (an "Exemption Certificate"). In the
case of payments to or for any Lender organized under the laws of a
jurisdiction outside the United States, unless the Administrative Agent has
received an Exemption Certificate from such Lender, the Administrative Agent
may withhold taxes from such payments at the applicable statutory rate. If the
Company is required to pay additional amounts to any Lender pursuant to this
Section 5.08,
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such Lender shall use reasonable efforts to designate a different Applicable
Lending Office if such designation will thereafter avoid the need for any
additional payments under this Section 5.08 and will not, in the sole
judgment of such Lender, be otherwise disadvantageous to such Lender.
(g) If a Lender organized under the laws of a jurisdiction
outside the United States has not delivered an Exemption Certificate to the
Company on or before the Closing Date or, in the case of any bank or financial
institution that becomes a Lender after the Closing Date pursuant to Section
12.06, the date of the instrument of assignment pursuant to which such bank or
financial institution became a Lender, then the Company shall not have any
obligation to indemnify such Lender for Taxes (including related penalties,
interest and expenses) imposed by the United States or any political
subdivision thereof pursuant to Section 5.08(a) and (c) hereof.
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 Eurodollar 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 franchise taxes or taxes measured by or
imposed on the overall net income of such Lender or of its Applicable
Lending Office for any of such Loans, in each case by the jurisdiction in
which such Lender is organized, has its principal place of business or has
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 but excluding, with
respect to any such Eurodollar Loan, any such requirements included in the
applicable Reserve Requirement); or
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<PAGE> 45
(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 Administrative 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
Eurodollar 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 Eurodollar Loans 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).
(b) Without limiting the effect of the foregoing provisions
of this Section 6.01, if, 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 liabilitie s
of such Lender which includes deposits by reference to which the interest rate
on Eurodollar Loans is determined as provided in this Agreement or a category
of extensions of credit or other assets of such Lender which includes
Eurodollar Loans or (ii) becomes subject to restrictio ns on the amount of
such a category of liabilitie s or assets which it may hold, then, if such
Lender so elects by notice to the Company (with a copy to the Administra tive
Agent), the obligation of such Lender to make Eurodollar Loans 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 maintainin g its obligation s to make Loans or of making or
maintainin g 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.
6.02 Limitation on Types of Loans. Anything herein to the
contrary notwithstanding, if, with respect to any Eurodollar
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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 available in the relevant
amounts or 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 Required 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 Eurodollar Loans or to convert Base Rate Loans into
Eurodollar Loans and the Company shall, on the last day(s) of the then current
Interest Period(s) for the outstanding Eurodollar Loans, 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 Eurodollar
Loans hereunder, or (b) maintain Eurodollar Loans hereunder, then such Lender
shall promptly notify the Company thereof through the Administrative Agent and
such Lender's obligation to make Eurodollar Loans hereunder shall be suspended
until such time as such Lender may again make and maintain Eurodollar Loans (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 Eurodollar Loans 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
Eurodollar Loans 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
Eurodollar 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 Eurodollar Loans are so made as (or converted into) Base Rate
Loans, all payments of principal which would otherwise be applied to such
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Eurodollar 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 Eurodollar
Loan made by such Lender on a date other than the last day of an
Interest Period for such Loan;
(b) any failure by the Company to borrow a Eurodollar Loan
to be made by such Lender on the date for such borrowing specified in
the relevant notice of borrowing under Section 5.05 hereof; or
(c) any assignment by such Lender of any Eurodollar Loan
in accordance with Section 12.06 hereof on or before the earlier of (i)
the date on which the Administrative Agent has notified the Company
that all assignments of Loans, Letter of Credit Liabilities and
Commitments in connection with general syndication have been completed
and (ii) the 90th day after the Closing Date, unless the Interest
Period applicable to such Eurodollar Loans is equal to one month;
such compensation to include, without limitation, an amount equal to the
excess, if any ("prospective loss of margin"), of (i) the amount of interest
which would have accrued on the principal amount so paid, prepaid or converted
or not borrowed for the period from the date of such payment, prepayment or
conversion or failure to borrow to the last day of the Interest Period for such
Loan (or, in the case of a failure to borrow, the Interest Period for such Loan
which would have commenced on the date of such failure to borrow) at the
applicable rate of interest for such Loan provided for herein over (ii) the
interest component (as reasonably determined by such Lender) of the amount (as
reasonably determined by such Lender) such Lender would have bid in the London
interbank market for Dollar deposits of leading banks in amounts comparable to
such principal amount and maturities comparable to such period; provided that
such compensation shall not include prospective loss of margin as a result of
any mandatory prepayment pursuant to Section 3.02(b) hereof or if all
Commitments have been terminated, all Loans have been repaid and no Letters of
Credit are outstanding immediately after giving effect to a payment or
prepayment which would give rise to the right to such compensation.
6.06 Additional Costs in Respect of Letters of Credit. If as
a result of any Regulatory Change there shall be imposed, modified or deemed
applicable any tax, reserve, special deposit or similar requirement against or
with respect to or
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measured by reference to Letters of Credit issued or to be issued hereunder or
participations therein, and the result shall be to increase the cost to any
Lender of issuing or maintaining any Letter of Credit or any participation
therein, or reduce any amount receivable by any Lender hereunder in respect of
any Letter of Credit (which increase in cost, or reduction in amount
receivable, shall be the result of such Lender's reasonable allocation of the
aggregate of such increases or reductions resulting from such event), then,
upon demand by such Lender, the Company agrees to pay to such Lender, from time
to time as specified by such Lender, such additional amounts as shall be
sufficient to compensate such Lender for such increased costs or reductions in
amount. A statement as to such increased costs or reductions in amount
incurred by such Lender shall be submitted by such Lender to the Company and
shall be conclusive as to the amount thereof absent manifest error.
6.07 Capital Adequacy. If any Lender shall determine that
the adoption or implementation after the date hereof 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. In
determining such amount, such Lender may use any reasonable averaging and
attribution methods.
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
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incorporation and by-laws of the Company, Nine West, the Parent and
each Subsidiary Guarantor (other than Cedar International) and of all
corporate action taken by the Company, Nine West, the Parent and such
Subsidiary authorizing the execution, delivery and performance of the
Basic Documents to which it is a party (including, without limitation,
a certificate of the Company, Nine West, the Parent and such Subsidiary
setting forth the resolutions of its Board of Directors or, in the case
of Nine West and the Parent, the Executive Committee of its Board of
Directors, authorizing the transactions contemplated thereby).
(b) Incumbency. The Company, Nine West, the Parent and
each Subsidiary shall have delivered to the Administrative Agent a
certificate in respect of the name and signature of each of the
officers (i) who is authorized to sign on its behalf the Basic
Documents to which it is a party 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 such Basic
Documents. 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
the Notes for each Lender, duly completed and executed.
(d) Subsidiary Guaranty, Parent Guaranty, Nine West
Guaranty and Security Documents. The Subsidiary Guaranty, the Parent
Guaranty, the Nine West Guaranty and the Security Documents shall have
been duly executed and delivered by the respective parties thereto, and
such other action (including without limitation filing of appropriately
completed and duly executed Uniform Commercial Code financing
statements and recording of the Mortgages) as may be necessary or as
the Administrative Agent shall have requested to perfect the security
interests created pursuant to the Security Documents shall have been
taken.
(e) Title Insurance. The Administrative Agent shall have
received policies of title insurance (or irrevocable commitments
therefor with all conditions marked satisfied) in form and substance
satisfactory to the Administrative Agent and issued by title insurance
companies satisfactory to the Administrative Agent (the "TIC"),
insuring the perfection, enforceability and first priority of the Liens
created under the Mortgages for the amounts specified in Schedule II
with respectthereto, subject only to the Permitted Encumbrances
referred to in the Mortgages and to such other exceptions as are
satisfactory to the Administrative Agent, subject to Section 9.24,
containing such endorsements and affirmative
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assurances as shall be required by and satisfactory to the
Administrative Agent and reinsured in amounts and under reinsurance
agreements in form and substance satisfactory to the Administrative
Agent; and the Company shall have paid or caused to be paid to the TIC
all expenses and premiums of the TIC in connection with the issuance of
such policies and in addition shall have paid to the TIC an amount
equal to the recording and stamp taxes payable in connection with
recording the Mortgages in the appropriate offices.
(f) Assigned Agreements. A photocopy of each fully
executed Assigned Agreement shall have been delivered to the
Administrative Agent; each such Assigned Agreement shall be in
substantially the form thereof heretofore determined by the
Administrative Agent to be satisfactory to it and furnished to the
Lenders; and, unless otherwise agreed by the Administrative Agent, all
consents required for the assignment to the Administrative Agent of the
Assigned Agreements as collateral under the Security Documents shall
have been obtained in form and substance satisfactory to the
Administrative Agent, except to the extent such consents are
contemplated pursuant to Section 9.25.
(g) Funding. The Administrative Agent shall be satisfied
that the aggregate amount of funds available to the Company on the
Closing Date shall be sufficient to consummate the Refinancings, to
provide sufficient working capital to meet the needs of the Company,
and to pay all fees, commissions and expenses in connection with the
foregoing and any other transactions contemplated hereby; and, unless
otherwise agreed by the Administrative Agent, the aggregate fees,
commissions and expenses paid and payable in connection with such
transactions shall not exceed $3,500,000.
(h) Insurance. The Company shall have delivered to the
Administrative Agent certificates of insurance satisfactory to the
Administrative Agent evidencing the existence of all insurance required
to be maintained (or caused to be maintained) by the Company pursuant
to Section 9.03 hereof, and the Administrative Agent shall have
received from Johnson & Higgins a broker opinion letter satisfactory to
the Administrative Agent with respect to such insurance.
(i) Fees and Expenses. The Company shall have paid to the
Administrative Agent, for its account and for the account of the
Lenders, fees in the amounts previously agreed upon among the Company
and the Administrative Agent; and shall have in addition paid to the
Administrative Agent all amounts payable under Section 12.03 hereof on
or before the date of this Agreement.
(j) Opinions of Counsel to the Company. The
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Administrative Agent shall have received an opinion of Apperson, Crump,
Duzane & Maxwell, PLC, counsel to the Company, substantially in the
form of Exhibit E-1 hereto, and an opinion of Rubin, Baum, Levin,
Constant & Friedman, counsel to the Parent, Nine West and the Company,
substantially in the form of Exhibit E-2 hereto, in each case covering
such other matters relating to the transactions contemplated hereby as
the Required Lenders may reasonably request.
(k) 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-1 hereto,
and an opinion of each of Hillburn, Calhoon, Harper and Pruniski &
Calhoun, Ltd., substantially in the form of Exhibit F-2 hereto, and
each of Gerald & Brand and McCormick, Forbes, Caraway & Tabor,
substantially in the form of Exhibit F-3 hereto, each special counsel
to the Administrative Agent, with such changes as are satisfactory to
the Administrative Agent, and, in each case, covering such other
matters relating to the transactions contemplated hereby as the
Required Lenders may reasonably request.
(l) Lockbox Agreements. The Company shall have delivered
or caused to be delivered to the Administrative Agent one or more
lockbox agreements, in form and substance satisfactory to the
Administrative Agent, and lockbox letters, substantially in the form
specified in the Security Documents, duly executed and delivered by it
or one of its Subsidiaries and one or more banks acceptable to the
Administrative Agent.
(m) Condition of Company. Each of the Lenders shall have
received a copy of, and shall be satisfied with, (i) the audited
consolidated financial statements of the Company and its Subsidiaries
for the fiscal year ended December 31, 1994, (ii) the most recent
interim financial statements of the Company and its Subsidiaries and
(iii) the pro forma financial statements of the Company and its
Subsidiaries referred to in Section 8.02(b)(iii) and the report thereon
addressed to the Lenders prepared by Price Waterhouse LLP.
(n) Employee Benefit Plans and Employment Contracts. A
photocopy of each fully executed employment contract (including without
limitation all collective bargaining agreements) covering, and all
employee savings, retirement and benefit plans, if any, relating to,
the employees of the Company and its Subsidiaries, shall have been
delivered to the Administrative Agent; and each such agreement shall be
in substantially the form thereof heretofore determined by the
Administrative Agent to be satisfactory to it and furnished to the
Lenders. The Lenders shall have received from The Wyatt Group a letter
stating the extent of the obligations of the Company and its
Subsidiaries under ERISA with respect to
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Unfunded Liabilities and such other related matters as the
Administrative Agent may reasonably request.
(o) Environmental Report. The Lenders shall have received
the environmental assessment dated October 1995, prepared by Pilko &
Associates, estimating potential sources of liabilities of the Company
and its Subsidiaries, under CERCLA, the Superfund Amendments and
Reauthorization Act of 1986, the Resource Conservation and Recovery
Act, as amended, and regulations promulgated thereunder, and any other
act or regulation of any federal, state, foreign or local environmental
authority having jurisdiction over the Company or any of its
Subsidiaries, in the form heretofore delivered to the Administrative
Agent.
(p) Solvency Opinion. The Lenders shall have received an
opinion from Valuation Research Corporation satisfactory to the
Administrative Agent stating in substance that after giving effect to
the transactions contemplated by this Agreement, including without
limitation payment of the Special Dividends, the Company and its
Subsidiaries will not, on a consolidated basis, be insolvent or be
rendered insolvent thereby, be left with unreasonably small capital
with which to engage in their business or have incurred debts beyond
their ability to pay such debts as they mature, in each case by a
margin reasonably satisfactory to the Administrative Agent, together
with a certificate of a Senior Officer supporting such conclusions.
(q) Appraisals. The Lenders shall have received the
valuation report prepared by Valuation Research Corporation of the
plant, property and equipment assets of the Company and its
Subsidiaries as of August 31, 1995, in the form heretofore delivered to
the Administrative Agent.
(r) Receivables and Inventory Audit. The Lenders shall
have received the report dated October 18, 1995 on the accounts
receivable and inventory of the Company and its Subsidiaries prepared
by Asset Based Lending Consultants, Inc., in the form heretofore
delivered to the Administrative Agent.
(s) Liquidity and Liabilities Test. Immediately after
giving effect to all transactions contemplated to take place on the
Closing Date, (i) the sum of the amount of cash held by the Company
plus the aggregate unused amount of the Working Capital Commitments
which the Company would be permitted to use pursuant to Section
2.01(iii) shall equal or exceed $20,000,000 and (ii) no Working Capital
Obligations shall be outstanding, and the Administrative Agent shall
have received a certificate of the Company to such effect.
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(t) Refinancings. The Administrative Agent shall have
received evidence satisfactory to it that (i) all loans outstanding
under each loan agreement or other debt instrument evidencing
Indebtedness or other obligations specified in Schedule VII, together
with accrued interest on such loans and all other amounts payable
thereunder, shall have been paid in full, (ii) all lending commitments
thereunder or letters of credit issued pursuant thereto shall have been
terminated, (iii) all Liens securing such loans or liabilities under
such letters of credit shall have been released pursuant to a
termination and release letter in form and substance satisfactory to
the Administrative Agent, and (iv) executed Uniform Commercial Code
Form UCC-3 termination statements or other instruments as may be
suitable or appropriate in connection with evidencing the foregoing
releases shall have been filed with the appropriate authorities or
delivered for filing to the Administrative Agent, in the case of each
of clauses (i), (ii) and (iii) above, after giving effect to any
concurrent borrowing hereunder on the Closing Date.
(u) Tax Sharing Agreement. The
Administrative Agent shall have received a copy of, and shall be
satisfied with the form and substance of, the Tax Sharing Agreement,
and shall have reviewed, and shall be satisfied with, the Company's
projected tax assumptions.
(v) Intercompany Agreements. To the
extent not already delivered to the Administrative Agent pursuant to
Section 8.10(b), the Company shall have delivered to the Administrative
Agent a copy of all documents evidencing intercompany transactions
among the Company, its Subsidiaries, Nine West and the Parent, and the
Administrative Agent shall have reviewed, and shall be satisfied with,
all such documents.
(w) Counterparts. The Administrative Agent shall have
received counterparts of this Agreement executed and delivered by or on
behalf of each of the parties hereto (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).
(x) Applicable Pricing Ratio Certificate. The Company
shall have delivered to the Administrative Agent a certificate
demonstrating the calculation of the Applicable Pricing Ratio for the
Performance Period commencing on the Closing Date.
(y) Other Documents. The Administrative Agent shall have
received such other documents relating to the transactions contemplated
hereby as the Administrative Agent
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may reasonably request.
7.02 Initial Working Capital Loans and Letters of Credit.
The obligation of each Lender to make the initial Working Capital Loan to be
made by it hereunder, or to issue the initial Letter of Credit hereunder, is
subject to the further condition precedent that on or prior to the date of such
borrowing or issuance, the Company shall have delivered to the Administrative
Agent a Borrowing Base Certificate, prepared as of October 31, 1995, in
accordance with Section 9.01(c) hereof.
7.03 Initial and Subsequent Loans and Letters of Credit. The
obligation of each Lender to make any Loan to be made by it hereunder, or to
issue any Letter of Credit hereunder, is subject to the conditions precedent
that, as of the date of such Loan or such issuance, and before and after giving
effect thereto:
(a) no Default shall have occurred and be continuing; and
(b) the representations and warranties made by each of the
Parent, Nine West, the Company and its Subsidiaries in each Basic
Document to which it is a party shall be true (or, in the case of Basic
Documents which are not Financing Documents, true in all material
respects) on and as of the date of the making of such Loan or such
issuance, with the same force and effect as if made on and as of such
date.
Each notice of borrowing by the Company hereunder, or request for issuance of a
Letter of Credit, shall constitute a certification by the Company to the effect
set forth in the preceding sentence (both as of the date of such notice and as
of the date of such borrowing or issuance).
7.04 Special Dividend Borrowing Date Loans. The obligations
of each Lender to make Tranche A Term Loans or Working Capital Loans on any
Special Dividend Borrowing Date is further subject to the conditions precedent,
which shall have been fulfilled to the satisfaction of the Administrative Agent,
that (a) the certificate required pursuant to Section 9.16(i)(y) shall have been
delivered to each of the Lenders not less than three Business Days prior to such
Special Dividend Borrowing Date, (b) the Administrative Agent shall have
received a copy of, and shall be reasonably satisfied with, the structure and
terms of the Special Dividends and the Special Dividend Documents and (c)
immediately after giving effect to the borrowing on such Special Dividend
Borrowing Date, the Company shall have applied the proceeds of the Tranche A
Term Loans or the Working Capital Loans made on such Special Dividend Borrowing
Date to the payment of a Special Dividend, Nine West shall have applied the
proceeds of such Special Dividend to the payment of a cash dividend to the
Parent, and the Parent shall have (i) applied the proceeds of such cash dividend
to
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the redemption, repurchase or repayment of the Senior Subordinated Reset Notes
or (ii) deposited the proceeds of such cash dividend to an escrow account in
accordance with Section 9.16(i)(z)(B) hereof or (iii) applied or deposited such
proceeds in any combination permitted pursuant to clause (i) and (ii).
Section 8. Representations and Warranties. The Company
represents and warrants to the Lenders and the Administrative Agent as follows
(including, in the case of any representation or warranty made as of the Closing
Date, both before and immediately after giving effect to the payment of the
Special Dividends and the consummation of Refinancings):
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; 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.
8.02 Information. (a) The Information Memorandum did
not as of the date thereof and will not as of the Closing Date contain any
untrue statement of a material fact or assumption or omit to state a material
fact or assumption necessary in order to make the statements contained therein
not misleading; provided that although the management of the Company believes
that the projections presented in the Information Memorandum are reasonable,
the Company makes no representation as to their attainability.
(b) Without limiting the generality of paragraph (a):
(i) The audited consolidated balance sheets of the
Company and its Subsidiaries as of December 31, 1994 and the related
consolidated statements of income and retained earnings and cash flows for
the year then ended (the "Company Audited Statements"), have been prepared
in accordance with generally accepted accounting principles consistently
applied. The Company Audited Statements fairly present the financial
position of the Company and its Subsidiaries at December 31, 1994 and the
results of their operations and cash flows for the year then ended in
conformity with generally accepted accounting principles.
(ii) The consolidated balance sheets of the Company
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and its Subsidiaries as of August 31, 1995 and the related consolidated
statements of income and retained earnings and cash flows for the eight
months ended August 31, 1995, have been prepared in accordance with
generally accepted accounting principles for interim financial information,
and include all adjustments, which are of a normal and recurring nature,
and fairly present, in all material respects, the financial position of the
Company and its Subsidiaries as of August 31, 1995 and the results of their
operations and cash flows for the eight months ended August 31, 1995.
(iii) The pro forma consolidated balance sheets of the
Company and its Subsidiaries as of September 30, 1995, prepared (a) after
giving effect to the payment of the Special Dividends, the consummation of
the Refinancings, the making of the Loans to be made on the Closing Date
hereunder and the remainder of the transactions contemplated to take place
on the Closing Date and (b) after giving effect to the consummation of the
Refinancings, the making of the Loans to be made on the Closing Date
hereunder and the remainder of the transactions contemplated to take place
on the Closing Date but before giving effect to the payment of the Special
Dividends, copies of which have been delivered to the Lenders, fairly
present in all material respects on a pro forma basis the financial
position of the Company and its Subsidiaries as of September 30, 1995.
(iv) The Company and its Subsidiaries did not on the date
of the balance sheet referred to in clause (iii) 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.
(c) The Company has disclosed to the Lenders in writing in
this Agreement and the Information Memorandum any and all facts (other than
general economic and industry conditions) which have or may have a Material
Adverse Effect.
(d) Since September 30, 1995 no event has occurred and no
condition has come into existence which has had, or is reasonably likely to
have, a Material Adverse Effect.
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.
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8.04 No Breach. None of the execution and delivery of the
Basic Documents or the transactions therein contemplated or compliance with the
terms and provisions thereof, the payment of the Special Dividends or the
consummation of the Refinancings 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 created pursuant to the Security Documents)
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. Each of the Company, its
Subsidiaries, and Nine West, as the case may be, has all necessary corporate
power and authority to pay the Special Dividends, to consummate the Refinancings
and to execute, deliver and perform its obligations under the Basic Documents to
which it is a party; the consummation of the Refinancings, the execution,
delivery and performance by the Company, its Subsidiaries and Nine West of the
Basic Documents to which they are parties have been duly authorized by all
necessary corporate action, on or prior to the payment of the Special Dividends,
the payment of the Special Dividends will 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 other
Basic Documents to which the Company, any of its Subsidiaries or Nine West is to
be a party 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. Each of the Company, its Subsidiaries and
Nine West, as the case may be, (i) has obtained all authorizations, approvals
and consents of, and has made all filings and registrations with, any
governmental or regulatory authority or agency and any third party necessary for
the consummation of the Refinancings and the execution, delivery or performance
by it of any Basic Document to which it is a party or for the validity or
enforceability thereof, except for filings and recordings of the Liens created
pursuant to, or permitted by, the Security Documents and (ii) on or prior to the
payment of the Special Dividends, will have obtained all authorizations,
approvals and consents of, and will have made all filings and registrations
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with, any governmental or regulatory authority or agency and any third
party necessary for the payment of the Special Dividends.
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
with respect to each Plan. No such Person has (i) sought a waiver of the
minimum funding standard under Section 412 of the Code in respect of any Plan,
(ii) failed to make any contribution or payment to any Plan or Multiemployer
Plan, or made any amendment to any Plan, which has resulted or could result in
the imposition of a Lien or the posting of a bond or other security under ERISA
or the Code or (iii) incurred any liability under Title IV of ERISA (other than
a liability to the PBGC for premiums under Section 4007 of ERISA).
8.09 Taxes. Each of the Company, Nine West, the Parent and
their respective Subsidiaries has filed all United States Federal income tax
returns and all other material tax returns which are required 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. There are no material tax disputes or
contests relating to the Company, Nine West, the Parent or any of their
respective Subsidiaries pending as of the Closing Date. 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.
8.10 Subsidiaries; Agreements. (a) Schedule IV hereto is a
complete and correct list, as of the date of this Agreement, of all Subsidiaries
of the Company and of all Investments held by the Company or any of its
Subsidiaries in any joint venture or other Person. Except for the Liens created
by the Security Documents, 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.
(b) Schedule V hereto is a complete and correct list of
all credit agreements, indentures, capitalized leases, obligations in respect
of letters of credit, guaranties, joint venture
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agreements, and other material instruments in effect as of the Closing Date
providing for, evidencing, securing or otherwise relating to any Indebtedness
or lease obligations of the Company or any of its Subsidiaries, and all
obligations of the Company or any of its Subsidiaries to issuers of surety or
appeal bonds issued for account of the Company or any of its Subsidiaries, and
such list correctly sets forth the names of the debtor or lessee and creditor
or lessor with respect to the Indebtedness or lease obligations outstanding or
to be outstanding and the property subject to any Lien securing such
Indebtedness or lease obligation. The Company has heretofore delivered to the
Administrative Agent a complete and correct copy of all such credit agreements,
indentures, capitalized leases, letter of credit obligations, guaranties, joint
venture agreements and other material instruments, including any modifications
or supplements thereto, as in effect on the date hereof.
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 which is material
to the operation of its business as proposed to be conducted.
8.14 Environmental Matters. (a) 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 to conduct their respective businesses as currently
conducted, except to the extent failure to have any such permit, certificate,
license, approval, registration or authorization would not have a Material
Adverse Effect. 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
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from any regulatory authority issued, entered, promulgated or approved
thereunder, except to the extent failure to comply would not have a Material
Adverse Effect.
(b) In addition, except (x) as described in Schedule VI or
(y) to the extent that the liabilities that could reasonably be expected to
result from the matters referred to in this Section 8.14(b) would not exceed
$200,000 individually or $750,000 in the aggregate:
(i) No notice, notification, demand, request for information,
citation, summons or order has been issued and received by the Company or
any of its Subsidiaries, no complaint has been served on the Company or
any of its Subsidiaries, no penalty has been assessed and, to the best
knowledge of the Company, no investigation or review is pending or
threatened by any governmental entity or other Person with respect to (1)
any alleged failure by the Company or any of its Subsidiaries to have any
environmental permit, certificate, license, approval, registration or
authorization required in connection with the conduct of the business of
the Company or any of its Subsidiaries, (2) any alleged failure by the
Company or any of its Subsidiaries to comply with the terms and conditions
of any such permit, certificate, license, approval, registration or
authorization or of any other limitation, restriction, condition, standard,
prohibition, requirement, obligation, schedule or timetable contained in
any applicable Environmental Law, (3) any Regulated Activity or (4) any
Release of any Hazardous Substance;
(ii) Neither the Company nor its Subsidiaries nor the businesses
conducted by such Persons nor, to the best knowledge of the Company or any
of its Subsidiaries, any other Person, other than in compliance with
applicable Environmental Laws, has disposed of or placed, held, located or
otherwise handled, any Hazardous Substance on, under or at any property
now or previously owned, operated or leased by the Company or any of its
Subsidiaries, and none of such properties has been used (whether by the
Company or any of its Subsidiaries or, to the best knowledge of the Company
or any of its Subsidiaries, by any other Person) as a dump site or storage
(whether permanent or temporary) site for any Hazardous Substance; and
(1) no polychlorinated biphenyls (PCBs), radioactive
material, urea formaldehyde or lead is or has been present at any
property now or previously owned, operated or leased by the Company
or any of its Subsidiaries;
(2) no asbestos is or has been present in airborne or
friable form at any property now or previously owned, operated or
leased by the Company or any of its Subsidiaries;
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(3) there are no underground storage tanks, active or
abandoned, which have been used to store or which otherwise contain
or have contained any Hazardous Substance at any property now or
previously owned, operated or leased by the Company or any of its
Subsidiaries; and
(4) no Hazardous Substance has been Released in a
reportable quantity or is present in a threshold planning quantity,
where such a quantity has been established by statute, ordinance,
rule, regulation or order, at, on or under any property now or
previously owned, operated or leased by the Company or any of its
Subsidiaries.
(iii) None of the Company, any of its Subsidiaries, or any of the
businesses conducted by such Persons has transported or arranged for the
transportation (directly or indirectly) of any Hazardous Substance except
as a commercial product to any location which is listed or proposed for
listing on the National Priorities List promulgated pursuant to CERCLA
("NPL"), or the Comprehensive Environmental Response, Compensation and
Liability Information System ("CERCLIS") or on any similar federal, state,
foreign or local list or which is the subject of federal, state, foreign
or local enforcement actions or, to the best knowledge of the Company,
other investigations which may lead to claims against the Company or any
of its Subsidiaries for clean-up costs, remedial work, damages to natural
resources or for personal injury claims,including, but not limited to,
claims under CERCLA;
(iv) All oral or written notifications of a Release of a Hazardous
Substance required to be filed under any applicable Environmental Law
have been filed by or on behalf of the Company and its Subsidiaries and no
property now or previously owned, operated or leased by the Company or any
of its Subsidiaries is listed or, to the knowledge of the Company or any
of its Subsidiaries, proposed for listing, on the NPL or on CERCLIS or any
similar federal, state, foreign or local list of sites requiring
investigation or clean-up which may lead to claims for clean-up costs,
remedial work, damages to natural resources or for personal injury claims,
including, but not limited to, claims under CERCLA;
(v) Except in compliance with applicable Environmental Laws or as
reported under applicable Environmental Laws, no Hazardous Substance
generated by the Company or any of its Subsidiaries has been stored
(except as a commercial product), recycled, treated or Released or
disposed of by the Company or any of its Subsidiaries at any location;
(vi) There are no Liens arising under or pursuant to any applicable
Environmental Laws on property owned, operated or leased by the Company or
any of its Subsidiaries, and no actions by any governmental entity have
been taken or, to the best knowledge of
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the Company, are in process which could subject any of such properties to
such Liens, and no notice or restriction relating to the presence of any
Hazardous Substance at any such property is required to be placed in any
deed to such property; and
(vii) There are no existing liabilities or potential liabilities of the
Company or any Subsidiary relating to health and safety matters for past or
present employees, agents, third party contractors or other workers,
including, but not limited to, such liabilities arising from OSHA
compliance or wrongful death actions.
(viii) There are no existing liabilities or potential liabilities of
the Company or any Subsidiary identified in any environmental
investigations, studies, audits, tests, reviews or other analyses
conducted by or which are in the possession of the Company or any of its
Subsidiaries in relation to any property or facility now or previously
owned, operated or leased by the Company or any Subsidiary which are not
disclosed in the reports described in Section 7.01(o) or disclosed in
Schedule VI. The Company conducts and, to the best knowledge of the
Company, has conducted all such environmental investigations, studies,
audits, tests, reviews or other analyses in relation to all properties and
facilities now or previously owned, operated or leased by the Company or
any of its Subsidiaries which are required under applicable Environmental
Laws and maintains such records and reports for the time periods
prescribed under applicable Environmental Laws.
(c) For purposes of this Section, representations given
with respect to the Company and its Subsidiaries shall be deemed given also
with respect to any matters which could result in Environmental Liabilities,
to the extent successor liability could be imposed under applicable
Environmental Laws on the Company or any of its Subsidiaries.
8.15 Foreign Subsidiaries. The Foreign Subsidiaries (i) do
not own or lease assets having an aggregate fair market value in excess of
$10,000, (ii) have no revenues and (iii) have no business operations.
Section 9. Covenants. The Company agrees that, so long as any
of the Commitments are in effect and until payment in full of all Loans
hereunder, the termination of all Letters of Credit and payment in full of
all Letter of Credit Liabilities, all interest thereon and all other amounts
payable under the Financing Documents, unless the Required Lenders shall
agree otherwise as contemplated by Section 12.05 hereof:
9.01 Information. The Company shall deliver to the
Administrative Agent, together with enough copies for each of the Lenders:
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(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, the consolidating statements of
income of the Company and its Subsidiaries, and the related
consolidated and consolidating balance sheet as at the end of such
year, setting forth with respect to the consolidated financial
statements in comparative form the corresponding figures (if any) for
the preceding fiscal year, and accompanied, in the case of said
consolidated financial statements, by an opinion thereon of Price
Waterhouse LLP or other independent certified public accountants of
recognized national standing, which opinion shall state that said
consolidated financial statements fairly present in all material
respects 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 a standard letter from such accountants stating that,
in performing the auditing procedures necessary for their
above-described opinion (but without any special or additional
procedures for that purpose), nothing came to their attention that
caused them to believe, except as specifically stated, that (i) the
Company was not in compliance with any of the terms, covenants,
provisions or conditions of this Agreement and (ii) the Company's
calculation of the Receivables and Inventory included in the Borrowing
Base as of the end of such fiscal year was not fairly stated, in all
material respects, in relation to the financial statements from which
such information was derived;
(b) as soon as available and in any event within 30 days
after the end of each monthly accounting period of the Company (and as
soon as available and in any event within 50 days after the end of each
fiscal quarter of the Company other than the last fiscal quarter in
each fiscal year) consolidated statements of income, retained earnings
and cash flow of the Company and its Subsidiaries, the consolidating
statements of income of the Company and its Subsidiaries and other
reports, at the request of the Administrative Agent or any Lender, in
each case in a form reasonably satisfactory to the Administrative
Agent, for such monthly accounting period and such fiscal quarter and
for the portion of the fiscal year ended at the end of such monthly
accounting period (and such fiscal quarter), and the related
consolidated and consolidating balance sheet as at the end of such
monthly accounting period (and such fiscal quarter), setting forth with
respect to the consolidated financial statements in comparative form
the corresponding figures from the Company's operating budget for such
fiscal year and the figures as at and for the corresponding dates and
periods in the immediately preceding fiscal year and accompanied, in
each case, by (i) a reconciliation, in form and detail reasonably
satisfactory to
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the Administrative Agent, of the Inventory and Receivables figures set
forth in such financial statements as at the end of such monthly
accounting period (and such fiscal quarter) to the Borrowing Base
Certificate previously delivered as at said date pursuant to clause (c)
below, (ii) a summary of sales by product group substantially in the
form of Exhibit N, (iii) in the case of the last monthly accounting
period of any fiscal quarter, a summary of sales by product group and
other income statement information substantially in the form of Exhibit
O, and (iv) a certificate of a Senior Officer, which certificate shall
state that said consolidated financial statements fairly present in all
material respects the consolidated financial condition and results of
operations of the Company in accordance with GAAP and which shall
contain 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) as soon as available and in any event within (i) seven
Business Days after the last day of each calendar month, and (ii) five
Business Days after receipt of a request therefor (which may be given
from time to time) from the Required Lenders, a Borrowing Base
Certificate as at such day or the date of such request, as the case may
be; provided that, in the case of any Borrowing Base Certificate to be
delivered pursuant to the foregoing clause (ii), Eligible Inventory
shall be calculated based on the amount of Eligible Inventory as of the
date of the Borrowing Base Certificate most recently delivered pursuant
to clause (i), adjusted to reflect the Company's best estimate of
changes in Eligible Inventory since the date of such Borrowing Base
Certificate;
(d) within 15 days after the beginning of each fiscal year
of the Company, a copy of the operating budget, including, without
limitation, projection of the anticipated cash flow, of the Company and
its Subsidiaries, divisions and product group for such fiscal year,
such budget to be accompanied by a certificate of a Senior Officer
specifying the assumptions on which such budget was prepared, stating
that such officer has no reason to question the reasonableness of any
material assumptions on which such budget was prepared and providing
such other details as the Administrative Agent may reasonably request;
(e) once during each fiscal year of the Company, if
requested by the Administrative Agent or the Required Lenders, a report
of an independent collateral auditor (which may be, or be affiliated
with, one of the Lenders) with respect to the Receivables and Inventory
components included in the Borrowing Base, which report shall indicate
that, based upon a review by such auditor of the Receivables (including
verification with
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respect to the amount, aging, identity and credit of the respective
account debtors and the billing practices of the Company conducted in a
manner comparable to that employed by the Company's independent
certified public accountants in connection with audits of the annual
financial statements of the Company) and Inventory (including
verification as to the value, location and respective types), the
information set forth in the Borrowing Base Certificate most recently
delivered is accurate and complete in all material respects;
(f) as soon as available and in any event within 90 days
after the end of each fiscal year of the Parent, consolidated
statements of operations, stockholder's equity and cash flow of the
Parent 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 (if any) for the preceding
fiscal year, and accompanied by an opinion thereon of Deloitte & Touche
LLP or other independent certified public accountants of recognized
national standing, which opinion shall state that said consolidated
financial statements fairly present in all material respects the
consolidated financial condition and results of operations of the
Parent and its Subsidiaries as at the end of, and for, such fiscal
year; provided that so long as the Parent and its Subsidiaries timely
file a Form 10-K with the Securities and Exchange Commission, the
requirements of this paragraph may be satisfied by the delivery of such
Form 10-K;
(g) as soon as available and in any event within 50 days
after the end of each fiscal quarter of the Parent (other than the last
fiscal quarter in each fiscal year), consolidated statements of
operations, stockholder's equity and cash flow of the Parent and its
Subsidiaries 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 by a certificate of the chief financial officer or
treasurer of the Parent, which certificate shall state that said
consolidated financial statements fairly present in all material
respects the consolidated financial condition and results of operations
of the Parent in accordance with GAAP and containing 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); provided that so long as the Parent and its Subsidiaries
timely file a Form 10-Q with the Securities and Exchange Commission,
the requirements of this paragraph may be satisfied by the delivery of
such Form 10-Q;
(h) promptly upon the mailing thereof to the
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shareholders or creditors of the Company or the Parent generally,
copies of all financial statements, reports and proxy statements so
mailed;
(i) 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 or the Parent
shall have filed with the Securities and Exchange Commission;
(j) 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 or notice that
any Multiemployer Plan is in reorganization, is insolvent or has been
terminated, a copy of such notice; (iii) receives notice from the PBGC
under Title IV of ERISA of an intent to terminate or appoint a trustee
to administer any Plan, a copy of such notice; (iv) applies for a
waiver of the minimum funding standard under Section 412 of the Code, a
copy of such application; (v) gives notice of intent to terminate any
Plan under Section 4041(c) of ERISA, a copy of such notice and other
information filed with the PBGC; (vi) gives notice of withdrawal from
any Plan pursuant to Section 4063 of ERISA, a copy of such notice; or
(vii) fails to make any payment or contribution to any Plan or
Multiemployer Plan or makes any amendment to any Plan which has
resulted or could result in the imposition of a Lien or the posting of
a bond or other security, a certificate of a Senior Officer setting
forth details as to such occurrence and action, if any, which the
Company or member of the Controlled Group is required or proposes to
take;
(k) 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;
(l) 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;
(m) (i) once during every two fiscal years of the Company,
if requested by the Administrative Agent or the Required Lenders, an
update prepared by an independent
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engineer satisfactory to the Administrative Agent of the reports
required to be delivered pursuant to Section 7.01(o), reporting any
material changes in the estimate of current liabilities and assessment
of potential sources of future liabilities contained therein and (ii) at
any time upon (x) notice from the Company to the Administrative Agent
pursuant to Section 9.23 or (y) the determination by the Administrative
Agent that an event described in clauses (i), (ii), (iii) or (iv) of
Section 9.23 shall have occurred, an update prepared by an independent
engineer satisfactory to the Administrative Agent of the reports
required to be delivered pursuant to Section 7.01(o), reporting any
material changes in the estimate of current liabilities and assessment
of potential sources of future liabilities contained therein, provided
that any report delivered pursuant to this clause (ii) shall be limited
to the facilities with respect to which such notice was given or such
determination was made (and reasonably related issues); and
(n) 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 a
Senior Officer (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 9.16, inclusive, and 9.19
and 9.21 hereof as of the end of the respective monthly accounting period,
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 adequate reserves with
respect thereto and if such contest, proceedings and reserves have been
described in a certificate of a Senior Officer delivered to the Lenders.
9.03 Insurance. The Company will maintain, and will cause
each of its Subsidiaries to maintain, insurance with responsible companies in
such amounts and against such risks as is
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usually carried by owners of similar businesses and properties in the same
general areas in which the Company and its Subsidiaries operate, provided that
in any event the Company shall maintain:
(1) Property/Business Interruption Insurance -- insurance
(x) against loss or damage covering all of the tangible real and
personal property and improvements of the Company and its Subsidiaries,
by reason of any Peril (as defined below), (y) covering any
construction or repair of improvements, for the total value of the work
performed and equipment, supplies and material furnished against any
Peril and (z) against loss of operating income earned from the
operation of the Facilities, by reason of any Peril affecting the
operation thereof, and insurance against any other insurable loss of
operating income by reason of any business interruption affecting the
Company and its Subsidiaries to the extent covered by standard business
interruption policies in the States in which the Facilities are
located, which insurance shall in each case cover the actual loss of
net profit together with the necessary continuing expenses during the
period of interruption by reason of the particular Peril or other
insurable business interruption in amounts (subject to such deductibles
which shall not exceed $250,000 in the case of any policy for any such
insurance described in the foregoing clause (x) or (y) or, in the case
of any policy for any such insurance described in the foregoing clause
(z), 10 days) as shall be reasonable and customary, but in no event
less than the greater of (A) (i) with respect to any policy for any
such insurance described in clause (x) or (y) other than any policy for
insurance against risks of flood at Vicksburg Chemical Company, the
aggregate outstanding principal amount of the Term Loans, (ii) with
respect to any policy for insurance against risk of flood at Vicksburg
Chemical Company, $10,000,000 annually or (iii) with respect to any
policy for any such insurance described in clause (z), $38,255,000, or
(iv) in each case, such lesser amount as the Required Lenders shall
have consented to in writing, and (B) the amounts necessary to avoid
the insured named therein from becoming a co-insurer of any loss under
such policy.
(2) Automobile Liability Insurance for Bodily Injury and
Property Damage -- or cause to be carried insurance in respect of all
vehicles (whether owned, hired or rented by the Company or any of its
Subsidiaries) at any time in such amounts as are then customary for
vehicles used in connection with property similar in use to the
Facilities and as otherwise may be required by applicable law.
(3) Comprehensive General Liability Insurance -- insurance
against (i) claims for bodily injury, death or property damage
occurring on, in or about the Facilities and adjoining streets and
sidewalks, (ii) claims arising out of
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the sudden and accidental release or spillage of toxic wastes or
substances, provided that the Company shall not be required to maintain
insurance against claims for testing, monitoring, cleanup, removal,
containment, neutralizing, detoxification or treatment of any facility
owned, occupied, or controlled by the Company, or of any facility where
waste of the Company is handled, treated or disposed of, and (iii)
claims for bodily injury, death or property damage resulting from the
use of products sold by the Company or any of its Subsidiaries in such
amounts as are then customary for property similar in use, and for
operations and businesses similar, to the Facilities located in the
States in which the Facilities are located, but in any event in an
amount per occurrence of at least $1,000,000 and $2,000,000 annually in
the aggregate and with a deductible (or self-insured amount) not in
excess of $250,000 per occurrence, except that, with respect to claims
arising out of clause (ii) above, the deductible shall be $1,000,000
per occurrence.
(4) Workers' Compensation Insurance -- insurance
(including Employers' Liability Insurance) to the extent required by
applicable law.
(5) Marine Open Cargo Insurance -- insurance against
claims for property damage occurring on, in or about waterways, in such
amounts as are then customary for similar cargo but in any event in an
amount per occurrence of at least $1,500,000 if property is below deck,
and $100,000 if property is on deck and with a deductible (or
self-insured amount) not in excess of $10,000.
(6) Other Insurance -- such other insurance, including
War-Risk Insurance when and to the extent obtainable by the Company
from the United States Government, in each case as is generally carried
by owners of similar properties in the States in which the Facilities
are located, in such amounts and against such risks as are then
customary for property similar in use to such Facilities.
Such insurance shall be written by financially responsible companies selected
by the Company, having an (except in the case of foreign insurers acceptable to
the Required Lenders) A.M. Best rating of "A-" or better and in a financial
size category of VI or larger, or by other companies acceptable to the Required
Lenders, and (other than workers' compensation) shall name the Administrative
Agent as loss payee and/or as additional insured, as its interests may appear.
Each policy referred to in this Section 9.03 shall include effective waivers by
the insurer of all claims for insurance premiums against the Administrative
Agent or any Lender, provide that all insurance proceeds in excess of $50,000
per claim which would otherwise be payable to the Company or any Subsidiary of
the Company under any of the policies described in
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this Section 9.03 shall be adjusted with the Administrative Agent (upon
consultation with the Company), and payable to the Administrative Agent (for
deposit in the Collateral Account maintained pursuant to the Security Documents
and application in accordance with Section 3.02(b)(2)), provide that it will
not be canceled or reduced except after not less than 30 days' written notice
to the Administrative Agent and provide that the interests of the
Administrative Agent and the Lenders shall not be invalidated by any act or
negligence of the Company or any Person having an interest in the Facilities
nor by occupancy or use of the Facilities for purposes more hazardous than
permitted by such policy nor by any foreclosure or other proceedings relating
to the Facilities. The Company will advise the Administrative Agent promptly
of any policy cancellation, reduction or amendment.
On the Closing Date the Company will deliver to the
Administrative Agent certificates of insurance satisfactory to the
Administrative Agent evidencing the existence of all insurance required to be
maintained by the Company hereunder and showing the termination or expiry date
of such insurance. Thereafter, not later than five Business Days prior to the
termination or expiry date of any such insurance the Company shall deliver to
the Administrative Agent certificates of insurance evidencing that such
insurance has been renewed or replaced, subject only to the payment of premiums
as they become due. The Company shall not obtain or carry separate insurance
concurrent in form or contributing in the event of loss with that required by
this Section unless the Administrative Agent is named as loss payee and insured
therein, with loss payable as provided herein. The Company will immediately
notify the Administrative Agent whenever any such separate insurance is
obtained and shall deliver to the Administrative Agent the certificates
evidencing the same.
If, in the opinion of the Company, any of the insurance which
it is required to maintain pursuant to this Section is not available on
commercially reasonable terms, the Company shall so notify the Administrative
Agent and the Lenders and, with the consent of the Required Lenders, may elect
not to purchase such insurance; provided that if the Company shall not have
received notice of disapproval from the Required Lenders within 20 days of
receipt by the Lenders of such notice from the Company, the Lenders shall be
deemed to have consented, for the purposes of this Section, to the election not
to purchase such insurance.
For purposes hereof, the term "Peril" shall mean,
collectively, (i) fire, lightning, flood, windstorm, hail, explosion,
earthquake, riot and civil commotion, vandalism and malicious mischief, damage
from aircraft, vehicles and smoke and (ii) all other perils covered by the
"all-risk" endorsement then in use in the States in which the Facilities are
located.
9.04 Maintenance of Existence; Conduct of Business.
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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 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.
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 proper books of record and account in which full, true and correct entries
in conformity with GAAP shall be made of all dealings and transactions in
relation to its business activities, 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.
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, 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 $100,000 or in the aggregate exceed $250,000 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 have a Material Adverse
Effect.
9.08 Indebtedness. The Company will not, and will not permit
any of its Subsidiaries to, create, incur or suffer to exist any Indebtedness
except: (i) Indebtedness to the Lenders under the Financing Documents, (ii)
Indebtedness outstanding on the Closing Date and identified in Schedule V hereto
and any renewals, extensions or refinancings of Indebtedness in Part B of such
Schedule, provided that such renewals, extensions or refinancings shall not
increase the amount of such Indebtedness or of the collateral securing it, (iii)
Indebtedness of the Subsidiary Guarantors to the Company, so long as such
Indebtedness is evidenced by a note satisfactory to the Administrative Agent,
(iv)
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Indebtedness incurred or assumed for the purpose of financing all or part of
the cost of acquiring any asset ("Purchase Money Indebtedness") in an aggregate
principal amount at anytime outstanding not to exceed $3,000,000 and (v) other
Indebtedness of the Company and its Subsidiaries in an aggregate principal
amount at any time outstanding not to exceed $1,000,000.
9.09 Current Ratio. The Company will not permit the ratio of
Current Assets to Current Liabilities at any time to be less than 1.5 to 1.
9.10 Leverage Ratio. The Company will not permit the ratio
(the "Leverage Ratio"), at any date during the periods set forth below, of (i)
Indebtedness of the Company and its Subsidiaries, determined on a consolidated
basis as of such date, to (ii) Cash Flow for the four fiscal quarters of the
Company most recently ended, on or prior to such date, considered as a single
accounting period, to exceed the ratio set forth below for the period in which
such date occurs:
<TABLE>
<CAPTION>
Periods Ratio
<S> <C>
From the Closing Date
through December 30, 1995 5.00:1.00
From December 31, 1995
through December 30, 1996 4.50:1.00
From December 31, 1996
through December 30, 1997 3.50:1.00
From December 31, 1997
through December 30, 1998 3.00:1.00
From December 31, 1998
through December 30, 1999 2.75:1.00
From December 31, 1999
through December 30, 2000 2.25:1.00
From December 31, 2000
and at all times thereafter 2.00:1.00
</TABLE>
9.11 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 the ratio set forth below for the period in which such
fiscal quarter ends:
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<TABLE>
<CAPTION>
Periods Ratio
<S> <C>
From the Closing Date
through December 30, 1997 2.25:1.00
From December 31, 1997
through December 30, 1998 3.00:1.00
From December 31, 1998
through December 30, 1999 3.50:1.00
From December 31, 1999
and at all times thereafter 4.00:1.00
</TABLE>
Provided that, in the case of any four fiscal quarter period ended prior to
October 31, 1996, for purposes of calculating compliance with this covenant,
interest expense included in the calculation of Cash Flow and Interest Expense
shall equal interest expense and Interest Expense, respectively, for the period
beginning on November 1, 1995 and ending on the last day of such four fiscal
quarter period (an "Annualized Period"), multiplied by a fraction, the
numerator of which is 12 and the denominator of which is the number of months
included in such Annualized Period.
9.12 Fixed Charge 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 (i) Cash Flow for such period minus Capital
Expenditures for such period to (ii) Interest Expense for such period plus the
aggregate amount of installments of principal of the Term Loans payable during
such period pursuant to Section 4.01 to be less than the ratio set forth below
for the period in which such fiscal quarter ends:
<TABLE>
<CAPTION>
Periods Ratio
<S> <C>
From the Closing Date
through December 30, 1995 1.00:1.00
From December 31, 1995
through December 30, 1996 1.05:1.00
From December 31, 1996
and at all times thereafter 1.10:1.00
</TABLE>
Provided that, in the case of any four fiscal quarter period ended prior to
October 31, 1996, for purposes of calculating compliance with this covenant,
interest expense included in the calculation of Cash Flow and Interest Expense
shall equal interest expense and Interest Expense, respectively, for the period
beginning on November 1, 1995 and ending on the last day of such four fiscal
quarter period (an "Annualized Period"), multiplied by a fraction, the
numerator of which is 12 and the denominator of which is the number of months
included in such Annualized Period.
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<PAGE> 74
9.13 Mergers, Asset Dispositions, Acquisitions, Etc. Except
as expressly permitted by Section 9.04, the Company will not, and will not
permit any of its Subsidiaries to, be a party to any merger or consolidation, or
sell, lease, assign, transfer or otherwise dispose of any assets, or acquire
assets from any Person, except (i) dispositions of inventory in the ordinary
course of business; (ii) dispositions of worn out or obsolete tools or equipment
no longer used or useful in the business of the Company and its Subsidiaries,
provided that tools and equipment disposed of in any single fiscal year by the
Company and its Subsidiaries shall not have an aggregate fair market value in
excess of $1,000,000; (iii) acquisitions of current assets in the ordinary
course of business and expenditures in respect of fixed or capital assets to the
extent permitted under Section 9.19 hereof; (iv) acquisitions of Investments
permitted under Section 9.15 hereof; (v) other dispositions of assets during any
fiscal year having an aggregate fair market value not exceeding $1,000,000; and
(vi) acquisitions of assets in the same line or lines of business activity as
the businesses conducted by the Company or its Subsidiaries on the Closing Date,
provided that (x) the consideration for such assets shall not be more than the
fair market value of such assets, (y) the fair market value of any single asset
acquired shall not exceed $5,000,000 and (z) the aggregate fair market value of
all such assets acquired after the Closing Date shall not exceed $10,000,000.
9.14 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) the Liens created pursuant to the Security Documents and
other Liens existing on the Closing Date and listed in Schedule V hereto; (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 in an
aggregate principal amount at any time outstanding not exceeding $3,000,000;
(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; and (iv) the Permitted Encumbrances referred to
in the Mortgages.
9.15 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
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transactions being herein called "Investments"), except: (i) operating deposit
accounts with any of the Lenders; (ii) Liquid Investments in the name and under
the control of the Administrative Agent (or a collateral sub-agent for the
Administrative Agent) as contemplated by the Security Documents; (iii) subject
to Section 9.17 hereof, Investments in accounts and notes receivable acquired in
the ordinary course of business as presently conducted; and (iv) Investments
existing on the Closing Date set forth on Schedule IV and additional Investments
in Subsidiaries of the Company with the prior written consent of the Required
Lenders.
9.16 Restricted Payments. The Company will not, and will not
permit any of its Subsidiaries to, declare or make any Restricted Payment,
except that so long as no Default has occurred and is continuing the Company may
(i) pay one or more special cash dividends to Nine West (each a "Special
Dividend"); provided that (x) the aggregate amount of all such cash dividends
shall not exceed $26,750,000, (y) the Company shall have delivered a certificate
to the Lenders not less than three Business Days' prior to the date of payment
of such cash dividend, demonstrating that the Company will be in compliance with
the Leverage Ratio calculated as of the date of payment of such cash dividend,
immediately after giving effect to the payment of such cash dividend, and (z)
the proceeds of any such cash dividend are immediately used by Nine West to pay
a cash dividend to the Parent and the proceeds of such cash dividend to the
Parent are (A) immediately applied by the Parent to the repurchase, redemption,
repayment or, if pursuant to terms and conditions satisfactory to the
Administrative Agent, defeasance of the Senior Subordinated Reset Notes or (B)
deposited by the Parent in an escrow account, which escrow account shall be
governed by an escrow agreement, in form and substance satisfactory to the
Administrative Agent and the terms of which shall provide, among other things,
that amounts deposited in such escrow account shall be invested in cash
equivalents acceptable to the Administrative Agent and that such amounts shall
be released only to the extent that such amounts are applied directly to the
repurchase, redemption or repayment of the Senior Subordinated Reset Notes, and
(ii) make additional Restricted Payments; provided that the aggregate amount of
all Restricted Payments made pursuant to this clause (ii) shall not exceed the
sum of (x) 25% of Excess Cash Flow for each fiscal year commencing with the
fiscal year ending December 31, 1996 and (y) 50% of the aggregate amount of Net
Cash Proceeds from any asset sale or disposition which is not required, pursuant
to the proviso to the first sentence of Section 3.01(b)(i)(4), to be applied to
the repayment of Loans.
9.17 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) make any Investment in an
Affiliate of the Company; (ii) transfer, sell, lease, assign or otherwise
dispose of any
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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, Guaranties 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 obtain in a comparable arm's length transaction with a Person not an
Affiliate of the Company; and (c) the Company may perform its obligations under
the Tax Sharing Agreement.
9.18 Lines of Businesses; Other Activities. (a) Neither the
Company nor any of its Subsidiaries shall engage to any substantial extent in
any line or lines of business activity other than the businesses conducted by it
on the Closing Date.
(b) Each of the Company and its Subsidiaries shall engage in
Derivatives Transactions only for bona fide hedging purposes in the ordinary
course of business, and not for speculative purposes.
9.19 Capital Expenditures. The Company will not permit the
aggregate amount of Capital Expenditures to exceed (i) for the period from and
including the Closing Date to and including December 31, 1995, $2,000,000; (ii)
for any fiscal year ending after December 31, 1995, the amount set forth
opposite such fiscal year:
<TABLE>
<CAPTION>
Fiscal Year Amount
<S> <C>
1996 $7,000,000
1997 7,500,000
1998 8,000,000
1999 8,500,000
2000 9,000,000
2001 9,500,000
</TABLE>
provided that to the extent that Capital Expenditures in any period are less
than the permitted amount for such period set forth in clauses (i) or (ii)
above, the amount of such shortfall may be carried forward to any succeeding
fiscal year.
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<PAGE> 77
If any property acquired or constructed by the Company after the date hereof is
not subject to the Lien of the Security Documents, the Company will execute and
deliver such mortgages and other security documents as may be necessary, or as
the Administrative Agent may request, to subject such property to such a Lien.
9.20 Modification of Other Agreements. The Company will not,
and will not permit any of its Subsidiaries to, consent to any modification,
supplement or waiver of any of the provisions of any of the Assigned Agreements
in any respect to the extent such modification, supplement or waiver would
impair materially the benefit to the Company or such Subsidiary of such Assigned
Agreement, it being understood that any modification, supplement or waiver of
any Assigned Agreement which materially adversely affects the amount or timing
of any payment by or to the Company or any of its Subsidiaries thereunder shall
be deemed to impair materially the benefit thereof to the Company for purposes
hereof, without the prior written consent of the Administrative Agent (with the
approval of the Required Lenders). The Company will not amend or modify (i) its
certificate of incorporation or by-laws in a manner adverse to the interests of
the Lenders and the Agent, (ii) any Special Dividend Document, or (iii) the Tax
Sharing Agreement in a manner adverse to the Company or to the interests of the
Lenders and the Agent, in each case without the prior written consent of the
Administrative Agent (with the approval of the Required Lenders).
9.21 Bank Accounts. Neither the Company nor any of its
Subsidiaries will maintain any accounts with any bank or other financial
institution having outstanding daily collected balances at any one time
exceeding $100,000 in the aggregate except (i) the Collateral Account referred
to in the Security Documents, (ii) any Lockbox Account (as defined in the
Security Documents) and (iii) any accounts maintained solely to meet payroll
disbursements with respect to employees of the Company or its Subsidiaries;
provided that the daily collected balances of such payroll accounts shall not,
when added together with the daily collected balances outstanding under any
other accounts of the Company and its Subsidiaries (other than the Collateral
Account), exceed $250,000.
9.22 Interest Rate Protection. On or before the date 90 days
after the Closing Date, the Company shall have entered into one or more Interest
Rate Agreements, which effectively enable the Company to fix or place a limit
upon the interest payable with respect to 50% of the principal amount of the
Term Loans outstanding on the Closing Date for a period of three years of 7% per
annum on the Eurodollar Base Rate that would be applicable to such Loans
(assuming Interest Periods of six months commencing as of the date such Interest
Rate Agreements are effective). For purposes hereof, the term "Interest Rate
Agreement" shall mean (i) an interest rate swap agreement, interest rate cap
agreement or similar arrangement between the Company and one or more of the
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Lenders or (ii) an interest rate cap agreement or similar arrangement
between the Company and one or more financial institutions (other than a Lender)
approved by the Administrative Agent (which approval shall not be unreasonably
withheld) pursuant to which the Company is not required to make any payments
other than reasonable initial fees.
9.23 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 Environmental Liability 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), (x) which could result in liability or expenses in excess
of $100,000 or (y) which individually or in the aggregate could have a Material
Adverse Effect.
9.24 Post-Closing Survey Title Insurance and Mortgage
Modification Matters. (a) The Company shall cause the Administrative Agent to
receive within forty-five (45) days (provided that, with respect to the
Vicksburg, Mississippi property, such time period shall be ninety (90) days) of
the Closing Date (x) satisfactory surveys, dated or certified as of a recent
date, of the real property subject to the Mortgages in each case made by
surveyors registered or certified in the jurisdictions in which such real
property is located, certified to the TIC (as defined in Section 7.01(e)) and to
the Administrative Agent and (y) such endorsements to the policies of title
insurance received on the Closing Date, the issuance of which are dependent on
the TIC's receipt of such surveys, including but not limited to the
comprehensive, "same as survey", contiguity (if applicable), and access
endorsements, in form and substance satisfactory to the Administrative Agent.
(b) The Company shall, and shall cause its Subsidiaries to, upon
the request of the Administrative Agent, promptly execute and deliver any
mortgage or deed of trust modifications that may be
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necessary to correct the description of the Mortgaged Property contained in the
Mortgages and to pay any costs of, or incidental to, any recording or filing of
such modifications.
9.25 Post-Closing Covenants. (a) The Company shall, within
three months of the Closing Date, deliver (or, in the case of clause (iii)
below, use its best efforts to deliver) to the Administrative Agent all consents
or notifications required for the assignment as collateral to the Administrative
Agent of all rights of the Company or any or its Subsidiaries under (i) the
Master Lease Agreement dated as of May 26, 1995 between General Electric
Corporation and New Mexico Potash Corporation, (ii) any extension or replacement
of Contract No. F41608-90-D-2268 dated as of November 30, 1990 between the
Department of the Airforce and Vicksburg Chemical Company (as assignee of Cedar
Chemical Corporation), (iii) each of the Potassium Mining Leases between New
Mexico Potash Corporation (as assignee of Kerr-McGee Chemical Corporation) and
the State of New Mexico (or any subdivision thereof), identified in Exhibit A-2
to the Mortgage executed by New Mexico Potash Corporation and (iv) the 1993
Distributorship Agreement between Haifa Chemicals, Ltd. and Vicksburg Chemical
Company.
(b) The Company shall use its best efforts to (i) deliver to
the Administrative Agent waivers of contractual and statutory landlord's,
landlord's mortgagee's and warehouseman's Liens in form and substance
satisfactory to the Administrative Agent under each existing lease (including
the headquarter's lease in Memphis, Tennessee), warehouse agreement or similar
agreement to which the Company or any of its Subsidiaries is a party and (ii)
incorporate such waivers when the existing lease, warehouse agreement or
similar agreement is amended, renewed or extended; provided that the Company
will obtain waivers of both contractual and statutory landlord's, landlord's
mortgagee's and warehouseman's Liens in form and substance satisfactory to the
Administrative Agent in connection with each new lease, warehouse agreement or
similar agreement entered into by the Company or any of its Subsidiaries.
(c) Within 15 days of the Closing Date, the Company shall deliver
to the Administrative Agent each of the following items:
(i) certified copies of the certificate of incorporation and
by-laws of Cedar International and of all corporate action taken by Cedar
International authorizing or ratifying the execution, delivery and
performance of the Basic Documents to which it is a party (including,
without limitation, a certificate of Cedar International setting forth the
resolutions of its Board of Directors authorizing the transactions
contemplated thereby);
(ii) a certificate in respect of the name and signature of
each of the officers of Cedar International (a) who is
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authorized to sign on its behalf the Basic Documents to which it is a party
and (b) 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 such Basic Documents;
(iii) a Perfection Certificate (as defined in the Subsidiary
Guarantor Security Agreement) executed by Cedar International together with
appropriately completed and duly executed Uniform Commercial Code financing
statements;
(iv) an opinion of Apperson, Crump, Duzane & Maxwell, PLC,
counsel to the Company, substantially in the form of Exhibit E-1 hereto but
limited to those opinions applicable to the Subsidiary Guarantors
referenced therein;
(v) certificates representing the outstanding capital stock of
Cedar International together with appropriate stock powers; and
(vi) such other documents relating to Cedar International as the
Administrative Agent may reasonably request.
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 or
any Reimbursement Obligation when due, (ii) any interest of any Loan or any
Reimbursement Obligation within two Business Days after the due date
thereof or (iii) any other amount payable under the Financing Documents
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 (i) any principal of or interest on Indebtedness
having an aggregate outstanding principal amount of at least $250,000
(other than the Loans) or (ii) any payment obligation in respect of
Derivatives Obligations having aggregate payment obligations of at least
$250,000; or any event or condition shall occur which results in the
acceleration of the maturity of any such Indebtedness or enables (or, with
the giving of notice or lapse of time or both, would enable) 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, Nine
West, the Parent or any Subsidiary Guarantor in any
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Financing Document or in any certificate furnished to any Lender or the
Administrative Agent pursuant to the provisions of any Financing Document,
shall prove to have been false or misleading in any material respect as of
the time made or furnished; or
(d) (i) the Company shall default in the performance of any of
its obligations under clauses (c) or (l) of Section 9.01, or Section 9.03
or Sections 9.08 through 9.25 hereof; (ii) any Subsidiary Guarantor shall
default in the performance of any of its obligations under the Subsidiary
Guaranty; (iii) the Parent shall default in the performance of any of its
obligations under the Parent Guaranty; (iv) Nine West shall default in the
performance of any of its obligations under the Nine West Guaranty; (v) any
Relevant Party (other than the Company or any Subsidiary Guarantor) shall
default in the performance of any of its material obligations in any Basic
Document in any material respect; or (vi) the Company or any Subsidiary
Guarantor shall default in the performance of any of its other obligations
in any Basic Document, and such default described in this subclause (vi)
shall continue unremedied for a period of 30 days after notice thereof to
the Company by the Administrative Agent or the Required 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 object in a timely
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
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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 $250,000 in the aggregate, and 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 10 days from the
date of entry thereof, or the Company or such Subsidiary shall not, within
said period of 10 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
(i) the Company or any member of the Controlled Group shall
fail to pay when due an amount or amounts aggregating in excess of $250,000
which it shall have become liable under Title IV of ERISA; or notice of
intent to terminate a Plan or Plans having aggregate Unfunded Liabilities
in excess of $250,000 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, to impose liability (other than for
premiums under Section 4007 of ERISA) in respect of, or to cause a trustee
to be appointed to administer, any such Plan or Plans; 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 there shall
occur a complete or partial withdrawal from, or a default, within the
meaning of Section 4219(c)(5) of ERISA, with respect to, one or more
Multiemployer Plans which could cause the Company or one or more members of
the Controlled Group to incur a current payment obligation in excess of
$250,000; or
(j) any of the Assigned Agreements, the Special Dividend
Documents or the Tax Sharing Agreement shall be terminated prior to the end
of its stated term, or shall cease to be in full force and effect prior to
the end of its stated term, for whatever reason, without the prior consent
of the Required Lenders; or
(k) without limiting the generality of clause (d) above, any
of the insurance required to be maintained (or caused to be maintained) by
the Company under Section 9.03 hereof shall be terminated and not
simultaneously replaced with other insurance satisfactory to the Required
Lenders; or
(l) except as the result of any transfer made pursuant to the
Nine West Pledge Agreement, Nine West shall cease to be the beneficial
owner of 100% of the issued and outstanding capital
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stock of the Company; or the Parent shall cease to be the beneficial owner
of 100% of the issued and outstanding capital stock of Nine West; or more
than 49.9% of the shares of capital stock of the Parent are held by any
Person or Persons other than TPR Investments Associates, Inc.; or, so long
as the number of directors on the board of directors shall equal four, less
than two representatives of TPR Investments Associates, Inc. shall be
directors of the board of directors of the Parent; or, in the event the
number of directors on the board of directors of the Parent increases to
five or more or decreases to three or less, representatives of TPR
Investments Associates, Inc. shall cease to constitute a majority of the
board of directors of the Parent;
(m) (i) any Security Document or the Subsidiary Guaranty shall
cease, for any reason, to be in full force and effect or any party thereto
(other than the Lenders) shall so assert in writing; or (ii) any Security
Document shall cease to be effective to grant a Lien on the collateral
described therein with the priority purported to be created thereby; or
(n) the proceeds of any Special Dividend shall be used for any
purpose other than the repurchase, redemption or repayment by the Parent of
the Senior Subordinated Reset Notes;
THEREUPON: the Administrative Agent may (and, if directed by the Required
Lenders, shall) (a) declare the Commitments terminated (whereupon the
Commitments shall be terminated) and/or (b) terminate any Letter of Credit
providing for such termination by sending a notice of termination as provided
therein and/or (c) declare the principal amount then outstanding of and the
accrued interest on the Loans and Reimbursement Obligations and commitment
fees, letter of credit 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 Commitments shall be automatically terminated and the principal
amount then outstanding of and the accrued interest on the Loans and
Reimbursement Obligations and commitment fees, letter of credit 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.
10.02 Collateral Account. The Company hereby agrees, in
addition to the provisions of Section 10.01 hereof, that upon
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the occurrence and during the continuance of any Event of Default, it shall, if
requested by the Administrative Agent or the Required Lenders, pay (and, in the
case of any Event of Default with respect to the Company referred to in clause
(f) or (g) of Section 10.01 hereof, forthwith, without any demand or the taking
of any other action by the Lenders, it shall automatically be obligated to pay)
to the Administrative Agent an amount in immediately available funds equal to
the then aggregate amount available for drawings under all Letters of Credit
issued for the account of the Company, which funds shall be held by the
Administrative Agent in the Collateral Account maintained by the Company
pursuant to the Security Documents, and be subject to investment and withdrawal
only as provided therein.
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 under the Letters of Credit 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 and its
affiliates' officers, directors, employees and agents and to Chase acting in
its individual capacity hereunder as issuer of Participation Letters of
Credit): (a) shall have no duties or responsibilities except those expressly
set forth in this Agreement, the Letters of Credit and the other Basic
Documents, and shall not by reason of this Agreement, the Letters of Credit 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, the Letters of Credit 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, the Letters of Credit
or any other Basic Document, or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement, the Letters of
Credit or any other Basic Document or any other document referred to or
provided for herein or therein or for any failure by the Company or any of its
Subsidiaries or any other 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 Required Lenders, and (d) shall not be responsible
for any action taken or omitted to be taken by it hereunder or under the
Letters of Credit, 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
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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.
Without in any way limiting any of the foregoing, each Lender acknowledges that
the Administrative Agent shall have no greater responsibility in the operation
of Letters of Credit than is specified in the Uniform Customs and Practice for
Documentary Credits (1983 Revision), International Chamber of Commerce
Publication No. 400 (or any replacement or revision thereof in effect from time
to time).
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, the Letters of Credit 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
Required Lenders and such instructions of the Required 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 or Reimbursement Obligations) 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 Required 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 Commitments and
the Loans made and Letter of Credit Liabilities held 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
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(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 agency fees and arrangement
fees heretofore agreed to between the Company, 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 2.02(g), 12.03
or 12.04 hereof, but without limiting the obligations of the Company under said
Sections 2.02(g), 12.03 and 12.04), ratably in accordance with their respective
Commitments (provided that if any Lender does not have a Commitment of any Class
outstanding, such Lender's Commitment of such Class shall be deemed to be the
aggregate outstanding principal amount of its Loans and Letter of Credit
Liabilities, if applicable, of such Class), 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, the Letters of Credit 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 2.02(g), 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, the Letters of Credit 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 or any other Person
of this Agreement or any of the other Basic Documents or any
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other document referred to or provided for herein or therein or to inspect the
properties or books of the Company or any other Person. Except for notices,
reports and other documents and information expressly required to be furnished
to the Lenders by the Administrative Agent hereunder, under the Letters of
Credit 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 other Person (or any of their 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, under the Letters of Credit 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 Required Lenders. Upon any
such resignation or removal, the Required 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
Required Lenders and shall have accepted such appointment within 30 days after
the retiring Administrative Agent's giving of notice of resignation or the
Required 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.
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11.09 Collateral Sub-Agents. Each Lender by its execution
and delivery of this Agreement agrees, as contemplated by the Security
Documents, that, in the event it shall hold any Liquid Investments referred to
therein, such Liquid Investments shall be held in the name and under the control
of such Lender and such Lender shall hold such Liquid Investments as a
collateral sub-agent for the Administrative Agent thereunder.
11.10 Register. The Company hereby designates the
Administrative Agent to serve as its agent, solely for purposes of this Section
11.10, to maintain a register (the "Register") on which it will record the
Tranche A Term Loan Commitments, the Tranche B Term Loan Commitments and the
Working Capital Commitments from time to time of each of the Lenders, the Loans
made by each of the Lenders and each repayment in respect of the principal
amount of the Tranche A Term Loans, Tranche B Term Loans and Working Capital
Loans of each Lender. Failure to make any such recordation, or any error in
such recordation, shall not affect the Company's obligations in respect of such
Loans. With respect to any Lender, the transfer of the Commitments of such
Lender and the rights to the principal of, and interest on, any Loan made
pursuant to such Commitments shall not be effective until such transfer is
recorded on the Register maintained by the Administrative Agent with respect to
ownership of such Commitments and Loans and prior to such recordation all
amounts owing to the transferor with respect to such Commitments and Loans shall
remain owing to the transferor. The registration of assignment or transfer of
all or part of any Commitments and Loans shall be recorded by the Administrative
Agent on the Register only upon the acceptance by the Administrative Agent of a
properly executed and delivered assignment instrument in accordance with Section
12.06. The Company agrees to indemnify the Administrative Agent and its
directors, officers, employees, attorneys and agents from, and hold each of them
harmless against, any and all losses, claims, damages and liabilities of
whatsoever nature which may be imposed on, asserted against or incurred by any
of them in performing their duties under this Section 11.10.
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
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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, and special local counsel to the Administrative Agent in
the States in which the Mortgages are recorded in connection with (i) the
preparation, execution and delivery of this Agreement (including the Exhibits
hereto) and the Security Documents and the making of the Loans and issuance of
Letters of Credit hereunder and (ii) any modification, supplement or waiver of
any of the terms of this Agreement, the Letters of Credit or any other Basic
Document; (b) if an Event of Default occurs, all reasonable costs and expenses
of each 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 costs, expenses, taxes, assessments and other charges incurred in
connection with any filing, registration, recording or perfection of any lien or
security interest contemplated by this Agreement, any Security Document or any
document referred to herein or therein; and (d) all costs, expenses and other
charges in respect of title insurance procured with respect to the Liens created
pursuant to the Mortgages.
12.04 Indemnification. The Company shall indemnify the
Administrative Agent, the Lenders and each affiliate thereof and their
respective directors, officers, employees, attorneys 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 (i) any actual or
proposed use by the Company of the proceeds of any extension of credit (whether
a Loan or a Letter of Credit) by any Lender hereunder or breach by the Company
of this Agreement or any other Basic Document, (ii) any Environmental
Liabilities or (iii) any investigation, litigation or other proceeding
(including any threatened investigation or proceeding) relating to the
foregoing, whether or not the
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indemnified Person is a party thereto, 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 and fees of engineers, environmental consultants
and similar technical personnel) 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 or any other Financing Document, 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 Required
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 no amendment, waiver or consent shall, unless in writing and signed by all
the Lenders, do any of the following: (i) increase any Commitment of any of the
Lenders or subject the Lenders to any additional obligations; (ii) reduce the
principal of, or interest on, any Loan, Reimbursement Obligation or fees
hereunder; (iii) postpone any date fixed for any payment of principal of, or
interest on, any Loan, Reimbursement Obligation or fee hereunder pursuant to
Sections 2.02, 2.04, 4.01(a), 4.01(b) or 4.02 hereof; (iv) change the percentage
of any of the Commitments or of the aggregate unpaid principal amount of any of
the Loans and Letter of Credit Liabilities, or the number of Lenders, which
shall be required for the Lenders or any of them to take any action under this
Agreement; (v) change any provision contained in Sections 2.08, 6, 12.03 or
12.04 hereof or this Section 12.05 or Section 12.08 hereof; (vi) release all or
substantially all of the security for the obligations of the Company under this
Agreement or any Note; (vii) sell or otherwise dispose of all or substantially
all of the assets (or, in the case of any Subsidiary, the capital stock of) any
Subsidiary of the Company or any division of the Company or any of its
Subsidiaries or (viii) release the Parent from its obligations under the Parent
Guaranty, release Nine West from its obligations under the Nine West Guaranty or
release any Subsidiary Guarantor from its obligations under the Subsidiary
Guaranty. 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. In addition, no amendment,
modification, termination or waiver of any provision of Section 2.03, 3.02 or
4.01(c) which has the effect of changing any voluntary or mandatory prepayments
or Commitment reductions applicable to any Class (an "Affected Class") in a
manner that disproportionately disadvantages such Class relative to the other
Class shall be effective without the written consent of the Required Class
Lenders of the Affected Class (it being understood and agreed that any
amendment, modification, termination or waiver
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of any provision which only postpones or reduces any voluntary or mandatory
prepayment or Commitment reduction from those set forth in Section 2.03, 3.02 or
4.01(c) with respect to only one Class shall be deemed to not disproportionately
disadvantage the other Class and, therefore, shall not require the consent of
Required Class Lenders of such other Class).
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 Letter of
Credit Liabilities or all or any part of its Commitments of any Class (i) to any
affiliate thereof, (ii) to any other Lender, or (iii) with the consent of the
Administrative Agent, which consent shall not be unreasonably withheld, to any
other bank or financial institution or fund; provided that any assignment shall
not be less than $5,000,000 or, if less, shall constitute an assignment of all
of such Lender's Commitments, Loans and Letter of Credit Liabilities. 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.
Upon the consummation of such assignment, the Company shall make appropriate
arrangements so that, if required, new Notes are issued to the assignor and the
assignee. If such assignee is not incorporated under the laws of the United
States of America or a state thereof, it shall, prior to the date of the
applicable instrument of assumption, deliver to the Company and the
Administrative Agent certification as to exemption from deduction or withholding
of any United States federal income taxes in accordance with Section 5.08(f).
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 or Letter of Credit
Liabilities held 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
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clause (i), (ii), (iii) or (vi) of Section 12.05 hereof). The Company agrees
that each participant shall be entitled to the benefits of Sections 5.08 and
6.01 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 or other transfer shall have been received by them
from such Lender. Notwithstanding anything to the contrary, any Lender may at
any time assign all or any portion of its rights under this Agreement, its
Notes and the other Financing Documents to a Federal Reserve Bank. No such
assignment shall release the transferor Lender from its obligations under the
Financing Documents.
12.07 Confidentiality. Each Lender agrees to exercise all
reasonable efforts to keep confidential any information delivered or made
available by the Company to it which is clearly indicated to be confidential
information; 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, the Company 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
2.02(g), 5.08, 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 Reimbursement Obligations and the termination of the Commitments
and the Letters of Credit.
12.09 Captions. The table of contents and the captions
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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. 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).
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.
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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.
CEDAR CHEMICAL CORPORATION
By: /s/ John C. Bumpers
-------------------------------------
Title:
Address for Notices:
5100 Poplar Avenue
Suite 2414 Memphis, TN 38137 Telecopy
Number: (901) 685-5399
Attention:
Copies to:
Trans-Resources, Inc.
Telecopy Number: (212) 888-3708
Apperson, Crump, Duzane &
Maxwell, PLC
Telecopy Number: (901) 521-0789
Rubin, Baum, Levin, Constant &
Friedman
Telecopy Number: (212) 698-7825
<PAGE> 95
Tranche A Term Loan Commitment: THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
$5,833,300
By: /s/ Michael J. McGovern
-------------------------------------
Title: Vice President
Tranche B Term Loan Commitment:
$9,250,000
Working Capital
Commitment:
$8,166,700 Address for Notices:
The Chase Manhattan Bank
(National Association)
1 Chase Manhattan Plaza
New York, New York 10081
Attention: Global Chemicals
Telecopy Number: (212) 552-7175
Lending Offices for all Loans:
The Chase Manhattan Bank
(National Association)
4 Metrotech Center
Brooklyn, New York 11245
Attention: New York Agency
Telex Number: 6720516 CMB NYA UW
62910 CMB UW
Telecopy Number: (718) 242- 6411
<PAGE> 96
Tranche A Term Loan Commitment: BANK LEUMI TRUST COMPANY OF NEW
YORK
$3,125,000
By: /s/ Steven R. Navarro
-------------------------------------
Title: Managing Director,
Corporate Finance
Tranche B Term Loan Commitment:
$0
Working Capital
Commitment:
$4,375,000 Address for Notices:
Bank Leumi Trust Company of New
York
579 Fifth Avenue
3rd Floor
New York, NY 10017
Attention: Gloria Bucher / Steve
Navarro
<PAGE> 97
Tranche A Term Loan Commitment: THE BANK OF NOVA SCOTIA
$3,125,000
By: /s/ Stephen Lockhart
-------------------------------------
Title: Vice President
Tranche B Term Loan Commitment:
$0
Working Capital
Commitment:
$4,375,000 Address for Notices:
The Bank of Nova Scotia
One Liberty Plaza
26th Floor
New York, NY 10006
Attention: Loan Accounting /
Marcia Samuels
<PAGE> 98
Tranche A Term Loan Commitment: THE DAIWA BANK, LIMITED
$3,125,000
By: /s/ Katherine L. Bass
-------------------------------------
Title: Executive Officer
By: /s/ M. Sawicki
-------------------------------------
Title: Vice President &
Manager
Tranche B Term Loan Commitment:
$0
Working Capital
Commitment:
$4,375,000 Address for Notices:
The Daiwa Bank, Limited
303 Peachtree Street
Suite 4420
Atlanta, GA 30308
Attention: Vice President,
Administration
<PAGE> 99
Tranche A Term Loan Commitment: FIRST AMERICAN NATIONAL BANK
$3,125,000
By: /s/ William Stults
-------------------------------------
Title: Vice President
Tranche B Term Loan Commitment:
$0
Working Capital
Commitment:
$4,375,000 Address for Notices:
First American National Bank
Participations Department
NA-0075 4th and Union
Nashville, TN 37237
Attention: Frenisa Joy
<PAGE> 100
Tranche A Term Loan Commitment: FBS AG CREDIT, INC.
$3,541,700
By: /s/ James Bosco
-------------------------------------
Title: President
Tranche B Term Loan Commitment:
$3,000,000
Working Capital
Commitment:
$4,958,300 Address for Notices:
FBS Ag Credit, Inc.
950 Seventeenth Street
Suite 350
Denver, CO 80202
Attention: Pam Leyba
<PAGE> 101
Tranche A Term Loan Commitment: GIROCREDIT BANK AG DER SPARKASSE
$3,125,000
By: /s/ Anna Trifan
-------------------------------------
Title: Vice President
Tranche B Term Loan Commitment:
$0
Working Capital
Commitment:
$4,375,000 Address for Notices:
GiroCredit Bank
65 East 55th Street
New York, NY 10022
Attention: JoMarie Rivera
<PAGE> 102
Tranche A Term Loan Commitment: MERRILL LYNCH SENIOR FLOATING RATE
FUND, INC.
$0
By: /s/ Anthony R. Clemente
-------------------------------------
Title: Authorized Signatory
Tranche B Term Loan Commitment:
$9,250,000
Working Capital
Commitment:
$0 Address for Notices:
Merrill Lynch Senior Floating
Rate Fund, Inc.
800 Scudders Mill Road - Area 2C
Plainsboro, NJ 08536
Attention: Anthony Clemente
<PAGE> 103
Tranche A Term Loan Commitment: PILGRIM PRIME RATE TRUST
$0
By: /s/ Michael D. Hatley
-------------------------------------
Title: Assistant Portfolio Manager
Tranche B Term Loan Commitment:
$9,250,000
Working Capital
Commitment:
$0 Address for Notices:
Pilgrim Prime Rate Trust Two
Renaissance Square 40 North
Central Avenue
Suite 1200
Phoenix, AZ 85004-3444
Attention: Michael Hatley
<PAGE> 104
Tranche A Term Loan Commitment: VAN KAMPEN PRIME RATE INCOME TRUST
$0
By: /s/ Jeffrey W. Maillet
-------------------------------------
Title: Sr. Vice President -
Portfolio Manager
Tranche B Term Loan Commitment:
$9,250,000
Working Capital
Commitment:
$0 Address for Notices:
Van Kampen American Capital One
Parkview Plaza Oakbrook
Terrace, IL 60181
Attention: Brian Murphy
Copy to:
State Street Bank & Trust
Corporate Trust Department
P.O. Box 778
Boston, MA 02102
Attention: Laura Magazu
<PAGE> 105
Total Tranche A Term Loan Commitments
$25,000,000
Total Tranche B Term Loan Commitments
$40,000,000
Total Working Capital Commitments
$35,000,000
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
as Administrative Agent
By: /s/ Michael McGovern
-------------------------------------
Title: Vice President
Address for Notices:
The Chase Manhattan Bank
(National Association)
4 Metrotech Center
Brooklyn, New York 11245
Attention: New York Agency
Telex Number: 6720516 CMB NYA UW
62910 CMB UW
Telecopy Number: (718) 242-6411
Copy to:
The Chase Manhattan Bank
(National Association)
1 Chase Manhattan Plaza
New York, New York 10081
Attention: Global Chemicals
Telecopy Number: (212) 552-7175
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