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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
[ X ] ANNUAL REPORT PURSUANT TO SECTION 13 or 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the fiscal year ended: DECEMBER 31, 1997 Commission file number: 1-9699
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BORDEN CHEMICALS AND PLASTICS
LIMITED PARTNERSHIP
Delaware 31-1269627
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(State of organization) (I.R.S. Employer Identification No.
Highway 73, Geismar, Louisiana 70734 (614) 225-4482
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(Address of principal executive offices) (Registrant's telephone number)
SECURITIES REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:
Title of each class Name of each exchange on which registered
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Depositary Units Representing Common Units New York Stock Exchange
SECURITIES REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT:
NONE
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Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes X No
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Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein. [ ]
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Aggregate market value in thousands of the Common Units held by non-
affiliates of the Registrant based upon the average sale price of such Units on
February 27, 1998 was approximately $289 million.
Number of Common Units outstanding as of the close of business on February 27,
1998: 36,750,000.
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The Exhibit Index is located herein at sequential page 41.
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PART I
ITEM I. BUSINESS
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GENERAL
Borden Chemicals and Plastics Limited Partnership (the "Company" or
"Partnership") is a limited partnership formed in 1987 to acquire, own and
operate polyvinyl chloride resins ("PVC"), methanol and other chemical plants
located in Geismar, Louisiana, and Illiopolis, Illinois, that were previously
owned and operated by Borden, Inc. ("Borden"). The three principal product
groups manufactured at these facilities are (i) PVC Polymers Products, which
consist of PVC resins and feedstocks (such as vinyl chloride monomer ("VCM") and
acetylene), (ii) Methanol and Derivatives, which consist of methanol and
formaldehyde, and (iii) Nitrogen Products, which consist of ammonia and urea.
During 1997, PVC Polymers Products, Methanol and Derivatives and Nitrogen
Products accounted for 66%, 24% and 10%, respectively, of the Company's
revenues.
On May 2, 1995, the Company, through its subsidiary operating partnership (the
"Operating Partnership"), completed the purchase of Occidental Chemical
Corporation's ("OxyChem") Addis, Louisiana PVC manufacturing facility and
related assets ("Addis Facility"). After incremental capacity expansions, the
Addis Facility has an annual capacity of 600 million pounds per year, which
increased the Company's stated annual capacity for PVC resin production by
approximately 62%. The cash purchase price for the Addis Facility was $100.4
million (see "Acquisition").
The Company seeks to increase its productive capacity through selective
expansions of its existing facilities and "debottlenecking" of production
facilities at its plants. From 1988 to 1997, the Company increased overall
capacity of its facilities by 28.3% through various expansions and
"debottlenecking" projects.
The Company's production complex at Geismar, Louisiana, its plant at
Illiopolis, Illinois, and the Addis Facility produce products for the following
applications:
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PRODUCTS LOCATION PRINCIPAL APPLICATIONS
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PVC POLYMERS PRODUCTS
PVC Geismar Water distribution pipe, residential
Illiopolis siding, wallcoverings, vinyl
Addis flooring
VCM Geismar Raw material for the Company's
PVC operations
METHANOL AND DERIVATIVES
Methanol Geismar Formaldehyde, MTBE, adhesives and
fibers or raw materials for the
Company's formaldehyde operations
Formaldehyde Geismar Pressed wood products, adhesives,
fibers
NITROGEN PRODUCTS
Ammonia Geismar Fertilizers, fibers, plastics,
explosives
Urea Geismar Fertilizers, animal feeds, adhesives
plastics
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The Company's plants generally can be operated at rates in excess of stated
capacity to take advantage of market opportunities without undue adverse
effects. References to capacity assume normal operating conditions, including
downtime and maintenance. The Company's objective is to operate the Geismar,
Illiopolis and Addis plants at or near full capacity because of the reduced
operating costs per unit of output at full operation.
The integrated design of the Company's plants provides it with a high degree
of flexibility to shift production volumes according to market conditions
efficiently utilize by-product streams. The Company's products are produced
through the highly integrated lines described below.
PVC POLYMERS PRODUCTS
PVC Resins - PVC is the second largest volume plastic material produced in the
world. The Company produces general purpose and specialty purpose PVC resins at
three plants - one located at the Geismar complex, one at Illiopolis and another
at Addis - with stated annual capacities of 575 million, 400 million and 600
million pounds of PVC resins, respectively. The PVC resin plants operated at
approximately 90% and 95% of combined capacity in 1997 and 1996, respectively.
Although there have been year-to-year fluctuations in product mix, the Company
has over time concentrated on the higher margin grades of PVC resin and reduced
its dependence on commodity pipe grade PVC resins, which have historically
experienced lower margins. Based on data from the Society of the Plastics
Industry, the Company believes its production currently accounts for
approximately 10% of total industry domestic capacity of PVC resins.
The PVC resin industry experienced strong demand through the first half of
1995. As a result, published prices for PVC resins increased to an average of
$0.40 per pound during the third quarter of 1995. Buildup of PVC inventories
worldwide by converters resulted in reduced PVC purchases during the second half
of 1995. Prices for PVC improved somewhat during the first half of 1996, but
then declined due to the competitive market conditions experienced in the second
half of 1996. Published prices for PVC during the fourth quarter of 1996
declined to an average of approximately $0.32 per pound. PVC prices repeated
this pattern again in 1997, with prices increasing through the second quarter of
1997 but declining in the second half of the year to prices similar to the
fourth quarter of 1996.
During 1997 and 1996, approximately 3% and 7%, respectively, of the Company's
total production of PVC resins was sold to Borden for use in its downstream
vinyl conversion operations. The balance was purchased by many customers, none
of which accounted for more than 11% of total PVC sales dollars during either
year. Unless there is a shortage of PVC resin capacity in the industry, demand
for PVC resins generally tends to be seasonal with higher demand during spring
months and lower demand during winter months.
Production Process. PVC resins are produced by the polymerization of VCM, a
raw material produced by the Company. The production by the Company of certain
specialty grades of PVC resins also involves the use of certain quantities
(approximately 11.2 million pounds in 1997) of vinyl acetate monomer, a raw
material not produced by the Company. The Company purchases quantities of vinyl
acetate monomer from Borden (which in turn purchases such raw material in bulk
from third parties) or from unrelated third parties. Purchases from Borden have
been and will be at prices that do not
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exceed the market price of vinyl acetate monomer.
All the VCM used by the Company's Geismar PVC resin plant and most of the VCM
used by the Company's Illiopolis PVC resin plant is obtained from the Company's
two Geismar VCM plants discussed below. Substantially all of the production of
these VCM plants is consumed by the Company's PVC resins plants at Geismar and
Illiopolis. The Geismar PVC resin plants obtain VCM from the Company's adjacent
VCM plants in the Geismar complex and the Illiopolis PVC resin plant obtains VCM
from the Company's Geismar plant via rail. The VCM requirement at the Addis
Facility is currently supplied by OxyChem which has arranged for physical
delivery to the Addis Facility by pipeline via exchange, but which may also be
supplied by rail car from OxyChem's plant in Deer Park, Texas or from OxyChem's
joint venture facility ("OxyMar") in Corpus Christi, Texas.
VCM is principally used in the production of PVC resins. The Company produces
VCM by two processes: an ethylene process and an acetylene process. The
finished product of both of these processes is essentially identical but the
production costs vary depending on the cost of raw materials and energy. The
ability to produce VCM by either process allows the Company the flexibility of
favoring the process that results in the lower cost at any particular time.
Ethylene-Based VCM. Ethylene-based VCM ("VCM-E") is produced by the Company
at a 650 million pound stated annual capacity plant at the Geismar complex. The
plant operated at approximately 94% and 98% of capacity during 1997 and 1996,
respectively. Substantially all of the production of the VCM-E plant is
consumed by the Company's PVC resin plants at the Geismar complex and
Illiopolis.
Ethylene and chlorine constitute the principal feedstocks used in the
production of VCM-E. Both feedstocks are purchased by the Geismar plant from
outside sources.
Acetylene-Based VCM. Acetylene-based VCM ("VCM-A") is produced at a 320
million pound stated annual capacity plant at the Geismar complex. During 1997
and 1996, the plant operated at approximately 76% and 79% of capacity
respectively. All of the VCM-A produced at the Geismar complex is consumed by
the PVC resin plants at Geismar and Illiopolis.
The Geismar complex contains the only VCM-A plant in the United States. The
integration of the VCM-A plant with the other plants on site provides stability,
cost and efficiency benefits to the plants located at the Geismar complex.
Although ethylene has generally been regarded as a lower cost feedstock for the
production of VCM, the VCM-A plant reduces the overall processing costs of the
Geismar complex because the acetylene plant produces as a by-product acetylene
off-gas, which is used as a feedstock in the production of methanol. In
addition, hydrochloric acid, a feedstock used in the production of VCM-A, is
produced as a by-product by the adjacent VCM-E plant. Furthermore, certain
industrial plants located near the Geismar complex have excess supplies of
hydrochloric acid that the Company is generally able to purchase at relatively
low cost.
In addition to hydrochloric acid, acetylene is a primary feedstock used in the
production of VCM-A.
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Acetylene. Acetylene is primarily used as a feedstock for VCM-A and for
other chemical intermediates. The Company has a 50% interest in a 200 million
pound stated annual capacity acetylene plant at the Geismar complex, with the
remaining 50% interest held by BASF Corporation ("BASF"). The Partnership has
agreed to purchase BASF's interest in the acetylene plant. See Item 7, "Capital
Expenditures". During 1997 and 1996, the plant operated at approximately 90%
and 96%, respectively, of capacity, with all production being consumed by either
the Company or BASF.
During 1997, approximately 59% of the total production of the acetylene plant
was used internally as a principal feedstock of the Geismar VCM-A plant. BASF
accounted for approximately 41% of the plant's 1997 production, less than its
full 50% share of production. Acetylene not required by BASF is available to
the Company at cost.
The principal feedstocks used in the production of acetylene are natural gas
and oxygen. Oxygen is obtained from certain air separation units and related
air compression systems, which are jointly owned by the Company, BASF and Air
Liquide America Corporation pursuant to joint venture arrangements. For a
description of the Company's arrangements for the purchase of natural gas, see
"Raw Materials".
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As long as a subsidiary of Borden is the general partner of the Company, the
acetylene plant will be operated and managed by employees of such general
partner pursuant to an operating agreement with BASF. The agreement provides
that, if a Borden subsidiary ceases to be the general partner, BASF will have
the exclusive right to become the operator of the plant and the personnel
necessary to operate the plant will be encouraged to accept employment with
BASF. The Company's interest in the acetylene plant and the air separation
systems is subject to certain rights of first refusal and limitations on
transfer. In addition, the Company and the third parties who hold the other
interests in such assets have mutual rights under certain circumstances, to
require the other party to purchase its interests.
The Company's principal competitors in the sale of PVC include Shintech,
Formosa Plastics, OxyChem and Geon.
METHANOL AND DERIVATIVES
Methanol - Methanol is used primarily as a feedstock in the production of
other chemicals. Such chemicals include formaldehyde, which is used in the
manufacture of wood building products and adhesives, and MTBE, which is used as
a gasoline additive. During the fourth quarter of 1995, the Company completed
an expansion of its existing methanol plant. This expansion increased the
Company's stated annual capacity by 30 million gallons to 330 million gallons
per year. During 1997 and 1996, the plant operated at approximately 96% and
92%, respectively, of capacity.
Strong demand for methanol in early 1995 resulted from limited growth in the
supply of methanol and industry consolidation during the past several years as
well as strong demand for MTBE and formaldehyde. Methanol sales prices declined
during the first half of 1996 but began improving in the latter part of the
year. Industry announcements indicated sales at contract prices of approximately
$0.50 per gallon toward the end of 1996. Supply disruptions in the industry
served to improve methanol pricing during 1997, with contract prices ending the
year at $0.58 per gallon. As supply is
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normalized and additional production capacity is brought on-line in 1998,
selling prices will face significant downward pressure during the year.
The Company believes its stated annual capacity represents approximately 14%
of total domestic capacity. The Company's main competitors in the sale of
methanol include Methanex, Terra Industries, Hoechst Celanese and Lyondell.
In 1997, approximately 39% of methanol volume was sold to third parties (other
than Borden). Borden accounted for approximately 37% of such production for its
downstream formaldehyde production. Approximately 17% of production was used
internally in the production of formaldehyde and the remaining approximately 7%
was used primarily to satisfy tolling and exchange arrangements. No customer
(other than Borden) accounted for more than 16% of total methanol sales dollars
in 1997.
The primary raw material feedstock used in the production of methanol is
natural gas. The efficiency of the Geismar methanol plant has been enhanced by
using the by-product of the Geismar acetylene plant, acetylene off-gas, as a
partial substitute feedstock for purchased natural gas. Natural gas represented
approximately 72% of the Company's total cost of producing methanol during 1997.
Formaldehyde. Formaldehyde is a chemical intermediate used primarily in the
production of plywood and other pressed wood products. The Company produces
50%-concentration formaldehyde (which is 50% formaldehyde and 50% water) at
three units at the Geismar complex. The formaldehyde plants have annual
capacities of 280, 190 and 180 million pounds per year, respectively, for the
50%-concentration formaldehyde. During 1997 and 1996, the three plants operated
at approximately 91% and 100%, respectively, of combined capacity. The smaller
plant also is capable of producing urea-formaldehyde concentrate for the
fertilizer industry. If operated for production of urea-formaldehyde, the
smaller plant's stated annual capacity would be 125 million pounds.
Formaldehyde demand generally is influenced by the construction industry and
housing starts. Total United States production capacity of 50%-concentration
formaldehyde is approximately 7.8 billion pounds, with the formaldehyde units at
the Geismar complex representing 650 million pounds, approximately 9%, of such
total. Major competitors of the Company include Georgia Pacific and Neste.
During 1997, approximately 37% of formaldehyde production was sold to Borden
and approximately 4% was utilized by the Company in the production of urea-
formaldehyde concentrate for the fertilizer industry. The remaining 59% was
purchased by an unaffiliated third party pursuant to a ten-year supply contract
signed in 1989. The contract requires the Company to supply in the future up to
78% of its annual capacity to the third party to the extent necessary to satisfy
that party's formaldehyde requirements.
The principal feedstock used in the production of formaldehyde is methanol.
The Geismar formaldehyde plants obtain all such feedstock from the adjacent
methanol plant.
Borden produces formaldehyde and urea-formaldehyde concentrate at other
facilities located in the United States and facilities outside the United
States. The Company does not have any interest in such other facilities
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and, accordingly, Borden may be a competitor of the Company with respect to
formaldehyde and urea-formaldehyde concentrate. The Partnership Agreement
provides that the Company may not significantly expand the capacity of the
Geismar formaldehyde plants without special approval. The Company is intended
to be a limited purpose partnership and the Partnership Agreement provides that
the General Partner shall have no duty to propose or approve, and in its sole
discretion may decline to propose or approve, any such expansion.
NITROGEN PRODUCTS
Ammonia. Ammonia is a commodity chemical used primarily for fertilizer
applications and as an intermediate for other agricultural chemicals such as
pesticides and herbicides. Approximately 85% of domestic ammonia production is
consumed directly or indirectly in fertilizer applications. The Company
produces ammonia at a 400,000 ton stated annual capacity plant located at the
Geismar complex. During 1997 and 1996, the Company operated at approximately
95% and 106%, respectively, of capacity.
During 1995 and 1996, the worldwide supply of ammonia experienced a series of
disruptions and reductions due to plant shutdowns, operating problems and
interruptions in the supply of natural gas, the primary feedstock in the
production of ammonia. At the same time, demand for ammonia, particularly in
Asia (China, India and Pakistan), increased for both industrial and fertilizer
applications. These factors combined to cause occasional shortages of ammonia
in the United States, which is a net importer of nitrogen products, and to
increase selling prices for ammonia. However, an increase in the worldwide
production capacity of ammonia, along with more aggressive pricing by producers
in the former Soviet Union, have put downward pressure on ammonia prices during
1997. Contract prices for ammonia decreased from $225 per ton in December 1996
to $140 per ton in December 1997.
Demand for ammonia is seasonal, with prices tending to be higher in the spring
and fall months than during the remainder of the year. In addition, fertilizer
demand is sharply affected by swings in crop acreage.
During 1997, approximately 65% of ammonia production was sold to third parties
(other than Borden), approximately 31% of production was used by the Company's
adjacent urea plant, and approximately 2% of production was sold to Borden.
The Company's stated annual capacity represents just under 2% of total North
American capacity. The Company's major competitors include PCS, Farmland
and Terra Industries.
Urea. Urea is a commodity chemical which is used primarily in fertilizer
applications. Approximately 80% of domestic production of urea is consumed in
fertilizer applications. Urea's high nitrogen content (46%) makes it an
effective and popular dry nitrogen fertilizer. In addition, urea is used in the
production of urea-formaldehyde resins used in the wood building products
industry.
The Company produces granular urea at a 270,000 ton stated annual capacity
plant at the Geismar complex. During 1997 and 1996, the plant operated at
approximately 75% and 110% respectively, of capacity.
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Because of the importance of the agricultural chemical industry as a market
for urea, demand is affected sharply by swings in crop acreage. In addition,
like ammonia, demand for urea is seasonal, with prices tending to be higher in
the spring and fall months than during the remainder of the year. Worldwide
urea production has expanded rapidly over the past 20 years, particularly in
countries with abundant supplies of low cost natural gas. Like ammonia, urea
demand has suffered during recent years from reduced United States fertilizer
demand. It also has been affected even more severely than ammonia by imports
from third world countries because storage and shipping of urea is easier and
less costly than is the case with ammonia.
Urea prices remained relatively stable in 1996 due to many of the same factors
which influenced the price of ammonia. However, increases in production
capacity and a decrease in imports of urea into China have caused selling prices
to significantly decline during 1997. Contract prices for urea decreased from
$185 per ton in December 1996 to $105 per ton in December 1997.
During 1997, approximately 42% of the Company's urea sales were to third
parties and approximately 58% were to Borden. A small portion of the Company's
urea production was used internally by the Company in the production of urea-
formaldehyde concentrate.
The Company's stated annual capacity represents approximately 3% of total
North American capacity. The Company's major competitors include PCS,
Unocal and CF Industries.
The principal feedstocks used in the production of urea are ammonia and carbon
dioxide, which the Company obtains from its adjacent ammonia plant.
RAW MATERIALS
The principal purchased raw material used in the Company's operations is
natural gas. In 1997, the Company purchased over 63.5 million MMBTUs of natural
gas for feedstock and as an energy source. Currently, the Company is one of the
largest industrial purchasers of natural gas in the state of Louisiana. Natural
gas is supplied by pipeline to the Geismar complex by six major natural gas
suppliers. In 1997, natural gas represented 83%, 75% and 72% of total
production costs for acetylene, ammonia and methanol, respectively, and 24% of
the Company's total production costs. The Company purchases the majority of its
natural gas under fixed-term, market sensitive supply contracts. The cost of
purchasing natural gas is, in general, greater in winter months, reflecting
increased demand for natural gas by consumers and industry during such months.
During 1996, the Company experienced unprecendented natural gas costs as the
cash price and NYMEX prices, which normally determine the Company's natural gas
purchase prices, reached record highs. Market conditions were similar in 1997,
and, as a result, the average natural gas cost for the year was only slightly
less than the 1996 average. Although the Company has diversified its suppliers
and does not currently anticipate any difficulty in obtaining adequate natural
gas supplies, there can be no assurance that the Company will in the future be
able to purchase adequate supplies of natural gas at acceptable price levels.
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The Company purchases other raw materials for its operations, principally
ethylene and chlorine. Ethylene is currently supplied by pipeline to the Geismar
facility by several suppliers. Chlorine is supplied by rail car to the Geismar
complex by various suppliers. The major raw material for the Illiopolis PVC
plant, VCM, is supplied by rail car from the Geismar facility. In addition, in
connection with the production of certain specialty grades of PVC resins, the
Company purchases certain quantities of vinyl acetate monomer. See "-PVC
Polymers Products-Production Process". The Company purchases its VCM
requirements for the Addis Facility under a VCM supply agreement entered into
with OxyChem at the closing of the Acquisition. The Company does not believe
that the loss of any present supplier would have a material adverse effect on
the production of any particular product because of numerous, competitive
alternate suppliers.
Because raw materials have accounted for a high percentage of the Company's
total production costs, and are expected to continue to represent a high
percentage of such costs for the Company, the Company's ability to pass on
increases in costs of these raw material feedstocks will have a significant
impact on operating results. The ability to pass on increases in feedstock and
fuel costs is, to a large extent, dependent on the then existing market
conditions. Because of the large volume of purchases of natural gas, any
increase in the price of natural gas or a shortage in its availability could
materially adversely affect the Company's income and cash flow from operations
and its ability to service its debt obligations.
INSURANCE
The Company maintains property, business interruption and casualty insurance
which it believes is in accordance with customary industry practices, but it is
not fully insured against all potential hazards incident to its business. The
Company also maintains pollution legal liability insurance coverage. However,
because of the complex nature of environmental insurance coverage and the
rapidly developing case law concerning such coverage, no assurance can be given
concerning the extent to which its pollution legal liability insurance, or any
other insurance that the Company has, may cover environmental claims against the
Company. Insurance, however, generally does not cover penalties or the costs of
obtaining permits. See "Legal Proceedings".
The Company is included in Borden's master insurance program, which includes
property damage and liability insurance. Under its risk retention program,
Borden maintains deductibles of $2.5 million, $0.5 million and $0.5 million per
occurrence for property and related damages at the Geismar, Illiopolis and Addis
facilities, respectively, and deductibles ranging from $0.1 million to $3.0
million per event for liability insurance.
MARKETING
The Company's PVC resin sales are conducted through a professional staff of
seven trained personnel geographically located in seven territories. In
addition to the regional sales managers, there are three product managers
performing marketing functions. All are employees of Borden.
The Company's other products are similarly marketed through a
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professional field sales organization of two Borden employees and two additional
marketing managers under the management of the director of non-PVC resins sales
and marketing located at Geismar. The professionals involved in this sales
function are geographically positioned in three locations covering the United
States.
The Company's sales activity is based on customer contact on a regular basis
to secure and maintain long-term supply relationships. A substantial portion of
the Company's sales is made under contracts with annual negotiations relating to
specific conditions of sales.
UTILITIES
The Geismar complex operates three high thermal efficiency co-generation units
providing the site with low cost electricity, steam and high temperature
reformer combustion air. Each unit is composed of a natural gas burning
turbine/generator unit combined with a steam producing heat recovery system
(i.e., the "co-generation" of electricity and steam).
The co-generation units are designed to provide a significant portion of the
electricity and steam, and a portion of the reformer combustion air requirements
of the Geismar complex at full production levels. These units have electrical
outputs of 20, 35 and 35 megawatts, respectively. The electricity is supplied by
the units through a substation owned by Monochem, Inc. ("Monochem"), a
corporation of which the Partnership owns 50% of the capital stock. The
Company's interest in Monochem is subject to certain rights of first refusal and
limitations on transfer.
Water requirements at the Geismar complex are obtained through Monochem from
the Mississippi River. At Illiopolis, a municipal water company supplies the
facility with its water requirements. Because the Illiopolis facility
represents a significant portion of the demand for water supply from the
municipal water company, the Company manages the operations of the water company
on a cost-reimbursed basis. The Addis Facility obtains its electricity and water
requirements from local public utilities. Natural gas is purchased by pipeline
from various intrastate suppliers.
PURCHASE AND PROCESSING AGREEMENTS
In connection with the formation of the Company in 1987, Borden entered into
certain purchase agreements ("Purchase Agreements") and processing agreements
("Processing Agreements") with the Company covering the following products: PVC
resins, methanol, ammonia, urea, formaldehyde and urea-formaldehyde concentrate.
The Purchase and Processing Agreements expire in November 2002, subject to
termination by Borden in the event BCPM ceases to be the general partner of the
Company, other than by reason of (i) the withdrawal of BCPM as general partner
under circumstances where such withdrawal violates the Partnership Agreement,
(ii) removal of BCPM as general partner by the Unitholders under circumstances
where cause exists or (iii) any other event except (x) voluntary withdrawal by
BCPM as general partner of the Company under circumstances where such withdrawal
does not violate the Partnership Agreement and such withdrawal is approved by a
Majority Interest or (y) the removal of BCPM as general partner of the Company
by action of the Unitholders under circumstances where cause does
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not exist.
The Purchase Agreements require Borden to purchase from the Company and
the Company to supply to Borden, subject to certain monthly quantity limits, at
least 85% (and at the option of Borden up to 100%) of the quantities of PVC
resins, methanol, ammonia and urea required by Borden for use in its plants in
the continental United States. Under the Purchase Agreements, the price for PVC
resins, ammonia, urea and methanol generally will be an amount equal to the
monthly weighted average price per unit that the Company charges its lowest-
priced major customer (other than Borden). If the Company does not make any
sales to any major customers other than Borden, then the price to Borden will be
the lowest prevailing price in the relevant geographic area. The Purchase
Agreements also provide that the Company is required to meet competitive third-
party offers or let Borden purchase the lower-priced product from such third
parties in lieu of purchases under the Purchase Agreements.
The Processing Agreements for formaldehyde and urea-formaldehyde concentrate
essentially require Borden to utilize the processing capacity of the
formaldehyde plants so that the formaldehyde plants operate at no less than 90%
of capacity, after taking into account the purchases of formaldehyde by an
unaffiliated third party under a long-term requirements contract. Although such
third party's current requirements for formaldehyde exceed 200 million pounds
per year, in the event that such third party's annual requirements are less than
such amount, Borden has the option of reducing or terminating its obligation to
utilize such processing capacity. Under the Processing Agreements, Borden is
required to pay the Company a fee for each pound of formaldehyde and urea-
formaldehyde concentrate processed equal to the Company's processing costs plus
a per pound charge. The per-pound charge is subject to increase or decrease
based on changes in the Consumer Price Index from October 1987. The Processing
Agreements also require the Company to meet competitive third party offers
covering formaldehyde unless meeting such offer would impose a significant
economic penalty on the Company, in which case Borden will be permitted to
accept such offer and reduce its obligations under the Processing Agreements by
a corresponding amount.
The Company believes that the pricing formulas set forth in the Purchase and
Processing Agreements have in the past provided aggregate prices and processing
charges that Borden would have been able to obtain from unaffiliated suppliers,
considering the magnitude of Borden's purchases, the long-term nature of such
agreements and other factors. The Company believes that this will continue to
be the case in the future. There may be conditions prevailing in the market at
various times, however, under which the prices and processing charges set under
the Purchase and Processing Agreements could be higher or lower than those
obtainable from unaffiliated third parties.
The Company is free to sell or otherwise dispose of, as it deems appropriate,
any quantities of PVC resins, ammonia, urea, methanol or formaldehyde which
Borden is not required to purchase. In addition, the Purchase and Processing
Agreements do not cover acetylene, VCM or industrial gases, which are either
consumed internally by the Company or have not been historically purchased by
Borden.
Because the foregoing Purchase and Processing Agreements are requirements
contracts, sales of products thereunder are dependent on Borden's requirements
for such products. Such requirements could be
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affected by a variety of factors, including a sale or other disposition by
Borden of all or certain of its manufacturing plants to unaffiliated purchasers
(in which event such agreements shall not apply to such purchasers unless
otherwise agreed to by such purchasers). In the event that, whether as a result
of the change of control of Borden or otherwise, Borden were to sell or
otherwise dispose of all or certain of its plants or otherwise reorient its
businesses, Borden's requirements for products sold or processed by the Company
under the Purchase and Processing Agreements could be diminished or eliminated.
The Company anticipates that if Borden were to sell all or certain of its
chemical manufacturing facilities, a purchaser may be interested in negotiating
the continuation of all or certain of the Purchase and Processing Agreements.
COMPETITION
The business in which the Company operates is highly competitive. The Company
competes with major chemical manufacturers and diversified companies, a number
of which have revenues and capital resources exceeding those of the Company.
Because of the commodity nature of the Company's products, the Company is not in
a position to protect its position by product differentiation and is not able to
pass on cost increases to its customers to the extent its competitors do not
pass on such costs. In addition to price, other significant factors in the
marketing of the products are delivery, quality and, in the case of PVC resins,
technical service. The Company believes that the overall efficiency,
integration and optimization of product mix of the facilities at Geismar,
Illiopolis, and Addis make the Company well positioned to compete in the markets
it serves.
Borden has agreed that, so long as BCP Management, Inc. ("BCPM") is the
general partner of the Company, Borden will not engage in the manufacture or
sale in the United States of methanol, ammonia, urea, acetylene, VCM or PVC
resins. However, if BCPM (i) is removed as general partner by the Unitholders
under circumstances where cause exists or (ii) withdraws as general partner
under circumstances where such withdrawal violates the existing partnership
agreements ("Partnership Agreements"), Borden shall not engage in such
manufacture or sale for a period of two years from the date of such removal or
withdrawal. If Borden were to sell any of its manufacturing facilities to an
unaffiliated purchaser that is not a successor to Borden, the purchasers of such
facilities would be free to compete with the Company.
TRADEMARKS
The Company entered into a Use of Name and Trademark License Agreement ("Use
of Name and Trademark License Agreement") with Borden pursuant to which the
Company is permitted to use in its name the Borden name and logo. The Use of
Name and Trademark License Agreement and the right to use the Borden name and
logo shall terminate in the event that BCPM ceases to be the General Partner.
MANAGEMENT
The General Partner, BCPM, manages and controls the activities of the Company
and the Holding Company and the General Partner's activities are limited to such
management and control. Neither the Holding Company nor
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<PAGE>
the Unitholders participate in the management or control of the Company. The
General Partner has fiduciary duties to Unitholders. Notwithstanding any
limitation on obligations or duties, the General Partner will be liable, as
general partner, for all the debts of the Company (to the extent not paid by the
Company) other than any debt incurred by the Company that is made specifically
nonrecourse to the General Partner.
The Company does not directly employ any of the persons responsible for
managing or operating the business of the Company, but instead relies on the
officers of the General Partner and employees of Borden who provide support to
or perform services for the General Partner and reimburses Borden (on its own or
on the General Partner's behalf) for their services.
ENVIRONMENTAL AND SAFETY REGULATIONS
General. The Company's operations are subject to federal, state and local
environmental, health and safety laws and regulations, including laws relating
to air quality, hazardous and solid wastes, chemical management and water
quality. The Company has expended substantial resources, both financial and
managerial, to comply with environmental regulations and permitting
requirements, and anticipates that it will continue to do so in the future.
Although the Company believes that its operations generally are in material
compliance with these requirements, there can be no assurance that significant
costs, civil and criminal penalties, and liabilities will not be incurred. The
Company holds various environmental permits for operations at each of its
plants. In the event a governmental agency were to deny a permit application or
permit renewal, or revoke or substantially modify an existing permit, such
agency action could have a material adverse effect on the Company's ability to
continue the affected plant operations. Plant expansions are subject to
securing necessary environmental permits. Environmental laws and regulations
have changed substantially and rapidly in recent years, and the Company
anticipates continuing changes. The trend in environmental regulations is to
place more restrictions and limitations on activities that may affect the
environment, such as emissions of pollutants and the generation and disposal of
wastes. Increasingly strict environmental regulations have resulted in
increased operating costs for the Company, and it is possible that the costs of
compliance with environmental, health and safety laws and regulations will
continue to increase. See "Management's Discussion and Analysis of Financial
Condition and Results of Operations-Liquidity and Capital Resources-
Environmental Expenditures."
The Company maintains an environmental and industrial safety and health
compliance program and conducts internal regulatory audits at its Geismar,
Illiopolis and Addis plants. The Company's plants have had a history of
involvement in regulatory, enforcement and variance proceedings in connection
with safety, health and environmental matters. Risks of substantial costs and
liabilities are inherent in certain plant operations and certain products found
at and produced by the plants, as they are with other enterprises engaged in the
chemical business, and there can be no assurance that significant costs and
liabilities will not be incurred.
Air Quality. The Geismar, Illiopolis and Addis plants emit air contaminants
and are subject to the requirements of the Clean Air Act and comparable state
statutes. Many of the existing requirements under these laws are embodied in
permits issued to the plants by state environmental agencies. The Company
believes that the Geismar, Illiopolis and Addis plants generally are in material
compliance with these requirements.
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The 1990 Amendments to the Clean Air Act (the "1990 Clean Air Act Amendments")
substantially revised and expanded the air pollution control requirements
throughout the United States. As discussed below, certain of these new or
revised requirements may impact the Geismar, Illiopolis and Addis plants.
The 1990 Clean Air Act Amendments require more stringent controls on volatile
organic compounds ("VOC") emissions in ozone non-attainment areas and also
require, subject to certain exceptions, the control of nitrogen oxide ("NOx")
emissions in such areas. The Geismar and Addis plants are located in a
"nonattainment area" for ozone under the 1990 Clean Air Act Amendments.
Additional capital expenditures may be required at the Geismar and Addis plants
in order to upgrade existing pollution control equipment and/or install
additional control equipment to comply with the new, more stringent regulations
for VOC and NOx.
The 1990 Clean Air Act Amendments and state laws and regulations also require
certain sources to control emissions of hazardous air pollutants, including
vinyl chloride. In particular, the EPA promulgated a rule in April 1994, which
may require the modification of the existing emission control equipment at the
Geismar facility. Capital expenditures may be necessary to comply with these
control standards.
The 1990 Clean Air Act Amendments further require "enhanced monitoring" of the
emissions from certain pieces of equipment. Although monitoring systems are
already in place at the Geismar, Illiopolis and Addis plants, capital
expenditures may be necessary to upgrade the systems to comply with the
"enhanced monitoring" requirement.
In late 1996 the Illiopolis plant discovered through emission stack testing
that the actual emissions from a specific dryer were higher than calculated
using emission factors and engineering estimates. These new emission numbers
were reported to the Illinois Environmental Protection Agency, and the plant
currently anticipates that an air pollution control device known as a baghouse
will be installed on the unit in 1998 at a cost of approximately $1.3 million.
Based on the information currently available to the Company, the Company does
not believe that the capital expenditures that may be required at the Geismar,
Illiopolis and Addis plants to comply with the 1990 Clean Air Act Amendments and
corresponding state regulations will be material. However, because all the
regulatory requirements under the 1990 Clean Air Act Amendments are not yet
final, and the Company is continuing to evaluate the impact of such amendments
on it, there can be no assurance that the actual costs will not exceed the
Company's estimates.
In March 1998, the United States Department of Justice ("DOJ") and the
Partnership reached an agreement in principle to resolve an enforcement
proceeding brought against the Company and BCPM, at the request of the
Environmental Protection Agency ("EPA"), for alleged violation of the Clean Air
Act, and other environmental statutes, at the Geismar facility. See "Legal
Proceedings".
OSHA and Community Right to Know. The Geismar, Illiopolis and Addis plants
are subject to the requirements of the federal Occupational Safety and Health
Act ("OSHA") and comparable state statutes. The Company
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<PAGE>
believes that the Geismar, Illiopolis, and Addis plants generally are in
material compliance with OSHA requirements, including general industry
standards, vinyl chloride exposure requirements, recordkeeping requirements and
chemical process safety standards. It is possible that changes in safety and
health regulations, or a finding of noncompliance with current regulations,
could result in additional capital expenditures or operating expenses for the
Geismar, Illiopolis and Addis plants.
The OSHA hazard communication standard and the EPA community right-to-know
regulations under the Emergency Planning and Community Right-to-Know Act
("EPCRA") require the Company to organize information about the hazardous
materials in the plants and to communicate that information to employees and
certain governmental authorities. The Company has prepared a detailed hazard
communication program and will continue this program as a part of its industrial
safety and health compliance program. The Company is a member of the Community
Awareness and Emergency Response ("CAER") program of the Chemical Manufacturers
Association, as well as the Association's Responsible Care initiative. At
Geismar, membership in such programs includes participation in the Geismar Area
Mutual Aid organization, which maintains a community warning system for
notification of chemical releases through the local sheriff's department. The
Company believes that it generally is in material compliance with EPCRA.
Solid and Hazardous Waste. The Geismar, Illiopolis and Addis plants generate
hazardous and nonhazardous solid waste and are subject to the requirements of
RCRA and comparable state statutes. The Company believes that the Geismar,
Illiopolis and Addis plants generally are in material compliance with RCRA.
However, see "Legal Proceedings".
A primary trigger for RCRA requirements is the designation of a substance as a
"hazardous waste". It is anticipated that additional substances will in the
future be designated as "hazardous waste", which likely would result in
additional capital expenditures or operating expenses for the Company.
In March 1998, the DOJ and the Partnership reached an agreement in principle
to resolve an enforcement proceeding against the Company and BCPM for alleged
violations of RCRA, and other environmental statutes, at the Geismar facility.
As part of the settlement, the Partnership has agreed to apply for a RCRA permit
for its valorization of chlorinated residuals ("VCR") unit. See "Legal
Proceedings".
During the early 1990s, the Company shipped partially depleted mercuric
chloride catalyst to the facility of Thor Chemicals S.A. (PTY) Limited ("Thor")
in Cato Ridge, South Africa for recovery of mercury. In 1993 the Louisiana
Department of Environmental Quality ("LDEQ") determined that the partially
depleted catalyst was not a hazardous waste, although LDEQ reversed this
position in 1994. The Company disagrees with this reversal. See "Legal
Proceedings."
Superfund. CERCLA, also known as the "Superfund" law, imposes liability,
without regard to fault or the legality of the original conduct, on certain
classes of persons that are considered to have contributed to the release of a
"hazardous substance" into the environment. These persons include the owner or
operator of the disposal site or sites where the release occurred and the
companies that disposed, or arranged for the disposal of, the hazardous
substances found at the site. Persons who are or were responsible for releases
of hazardous substances under CERCLA may
15
<PAGE>
be subject to joint and several liability for the costs of cleaning up the
hazardous substances and for damages to natural resources. In the ordinary
course of the Company's operations, substances are generated that fall within
the CERCLA definition of "hazardous substance". If such wastes have been
disposed of at sites which are targeted for cleanup by federal or state
regulatory authorities, the Company may be among those responsible under CERCLA
or analogous state laws for all or part of the costs of such cleanup. The
Geismar, Illiopolis and Addis plants have in the past and are expected to
continue to generate hazardous substances and dispose of such hazardous
substances at various offsite disposal sites.
In March 1998, the DOJ and the Partnership reached an agreement in principle
to resolve an enforcement proceeding against the Company and BCPM for alleged
violation of CERCLA's reporting requirements, and other environmental
requirements, at the Geismar facility. See "Legal Proceedings".
Toxic Substances Control Act. The Company is subject to the Toxic Substances
Control Act ("TSCA"), which regulates the development, manufacture, processing,
distribution, importation, use, and disposal of thousands of chemicals. Among
other requirements, TSCA provides that a chemical cannot be manufactured,
processed, imported or distributed in the United States until it has been
included on the TSCA Chemical Inventory. Other important TSCA requirements
govern recordkeeping and reporting. For example, TSCA requires a company to
maintain records of allegations of significant adverse reactions to health or
the environment caused by chemicals or chemical processes. The Company believes
that it generally is in material compliance with TSCA. Violations of TSCA can
result in significant penalties.
Water Quality. The Geismar, Illiopolis and Addis plants maintain wastewater
discharge permits for their facilities pursuant to the Federal Water Pollution
Control Act of 1972 and comparable state laws. Where required, the Company also
applied for and received permits to discharge stormwater. The Company believes
that the Geismar, Illiopolis and Addis plants generally are in material
compliance with the Federal Water Pollution Act of 1972 and comparable state
laws. In cases where there are excursions from the permit requirements, the
Geismar and Illiopolis plants are taking action to achieve compliance, are
working in cooperation with the appropriate agency to achieve compliance or are
in good faith pursuing their procedural rights in the permitting process.
The EPA has issued effluent regulations specifying amounts of pollutants
allowable in direct discharges and in discharges to publicly owned treatment
works. The Geismar, Illiopolis and Addis plants manufacture or use as raw
materials a number of chemicals subject to additional regulation. Both federal
and state authorities continue to develop legislation and regulations to control
the discharge of certain toxic water pollutants. Passage of such legislation or
regulations could necessitate additional capital expenditures to reduce
discharges of these substances into the environment either during routine or
episodic events. The Company does not believe that these legislative
developments would have a material adverse impact on the Company's operations.
It is common for chemical plants from time to time to encounter areas of
groundwater contamination during the ordinary course of business.
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<PAGE>
Typically, some of these contamination events are historical and cannot be
documented as to the causal circumstances. While some contamination events have
been identified at the Company's plants, it is the Company's policy, where
possible and appropriate, to address and resolve these contamination events. The
Company believes that environmental indemnities available to it would cover a
substantial portion of these known or unknown contamination events. The Company
does not believe that the known contamination events will have material adverse
impact on the Company's operations. The Company believes that the Geismar,
Illiopolis and Addis plants generally are in material compliance with all laws
with respect to known groundwater contamination events. At the Geismar complex,
Borden and the Company have complied with the Settlement Agreement with the
state of Louisiana for groundwater remediation. See "Legal Proceedings" for
further discussion.
Present and Future Environmental Capital Expenditures. Although it is the
Company's policy to comply with all applicable environmental, health and safety
laws and regulations, in many instances the implementing regulations have not
been finalized. Even where regulations or standards have been adopted, they are
subject to varying and conflicting interpretations and implementation. In many
cases, compliance with environmental regulations or standards can only be
achieved by capital expenditures, some of which may be significant. Capital
expenditures for environmental control facilities were approximately $7.4
million in 1997 and $5.9 million in 1996. Capital expenditures for environmental
control facilities are expected to total approximately $15.0 million in 1998
(although such estimate could vary substantially depending on the outcome of the
various proceedings and matters discussed herein, and no assurance can be given
that greater expenditures on the part of the Company will not be required as to
matters not covered by the environmental indemnity from Borden).
BORDEN ENVIRONMENTAL INDEMNITY
Under the Environmental Indemnity Agreement, subject to certain conditions,
Borden has agreed to indemnify the Company and the Holding Company in respect of
environmental liabilities arising from facts or circumstances that existed and
requirements in effect prior to November 30, 1987, the date of the initial sale
by Borden of the Geismar and Illiopolis plants to the Company (the "Transfer
Date"). The Company is responsible for environmental liabilities arising from
facts or circumstances that existed and requirements in effect on or after the
Transfer Date. With respect to certain environmental liabilities that may arise
from facts or circumstances that existed and requirements in effect both prior
to and after the Transfer Date, Borden and the Company will share liabilities on
an equitable basis considering all of the facts and circumstances including, but
not limited to, the relative contribution of each to the matter and the amount
of time each has operated the asset in question (to the extent relevant). No
claims can be made under the Environmental Indemnity Agreement after November
30, 2002, and no claim can, with certain exceptions be made with respect to the
first $0.5 million of liabilities which Borden would otherwise be responsible
for thereunder in any year, but such excluded amounts shall not exceed $3.5
million in the aggregate. Excluded amounts under the Environmental Indemnity
Agreement met the aggregate amount of $3.5 million as of December 31, 1996.
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<PAGE>
ADDIS ENVIRONMENTAL INDEMNITY
OxyChem has indemnified the Company for environmental liabilities arising from
the manufacture, generation, treatment, storage, handling, processing, disposal,
discharge, loss, leak, escape or spillage of any product, waste or substance
generated or handled by OxyChem prior to the closing of the Acquisition, any
condition resulting therefrom relating to acts, omissions or operations of
OxyChem prior to such date, and any duty, obligation or responsibility imposed
on OxyChem prior to such date under environmental laws in effect prior to such
date to address such condition. However, except with regard to claims arising
from OxyChem's disposal of waste at sites other than the Addis Facility, OxyChem
has no indemnification obligation if the claim for indemnification is the result
of a change in applicable law after the closing of the Acquisition. OxyChem's
obligation to indemnify the Company for environmental liabilities is subject to
certain limitations. There can be no assurance that the indemnification provided
by OxyChem will be sufficient to cover all environmental liabilities existing or
arising at the Addis Facility.
PRODUCT LIABILITY AND REGULATION
As a result of the Company's manufacture, distribution and use of different
chemicals, the Company is, and in the future may be, subject to various lawsuits
and claims, such as product liability and toxic tort claims, which arise in the
ordinary course of business and which seek compensation for physical injury,
pain and suffering, costs of medical monitoring, property damage, and other
alleged harms. See "Legal Proceedings-General Proceedings". New or different
types of claims arising from the Company's various chemical operations may be
made in the future.
The United States Food and Drug Administration ("FDA") is proposing new
regulations providing for the safe use of vinyl chloride polymers in food-
contact articles. According to the FDA, such regulations are required because
vinyl chloride monomer, a component of vinyl chloride polymer, has been shown to
be a carcinogen. However, the FDA concludes in its proposal that there is a
reasonable certainty of no harm from the exposure to the small amounts of vinyl
chloride monomer that may result from the use of vinyl chloride polymers in food
packaging which complies with the FDA's proposed regulations. Thus, the FDA
proposal would continue to allow substantially all presently allowable uses,
including all products currently made using products produced by the Company.
While the FDA has tentatively concluded that such action will not have a
significant effect on the human environment, it is considering whether to
develop a full environmental impact statement to consider the potential effect
on the environment of the disposal of these food-contact articles. The EPA has
authority with respect to the safe use of vinyl chloride polymer pipe in
municipal water systems and has not imposed any restrictions on its use. It is
possible, however, that the FDA, the EPA, or other federal and state agencies
may seek to impose additional restrictions on the use or disposal of vinyl
chloride polymer. Moreover, while Borden has agreed to indemnify the Company in
respect of liabilities arising from products (including but not limited to vinyl
chloride polymer) shipped prior to November 1987, the Company will be
responsible for any subsequent product liabilities.
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<PAGE>
EMPLOYEES
The Partnership does not directly employ any of the persons responsible for
managing and operating the Partnership, but instead reimburses BCPM for their
services. On December 31, 1997 BCPM employed approximately 800 individuals.
CASH DISTRIBUTIONS
The Partnership distributes 100% of its Available Cash as of the end of each
quarter on or about 45 days after the end of such quarter to Unitholders of
record as of the applicable record date and to the General Partner. "Available
Cash" means generally, with respect to any quarter, the sum of all cash receipts
of the Partnership plus net reductions to reserves established in prior
quarters, less cash disbursements and net additions to reserves in such quarter.
The General Partner has broad discretion in establishing reserves, and its
decisions regarding reserves could have a significant impact on the amount of
Available Cash. The timing and amounts of additions and reductions to reserves
may impact the amount of incentive distributions payable to the General Partner.
As a result, distributions to Unitholders may over time be reduced from levels
which would have been distributed if the General Partner were not able to
control the timing of additions and reductions to reserves.
Distributions by the Partnership of Available Cash are generally made 98% to
the Unitholders and 2% to the General Partner, subject to the payment of an
incentive distribution to the General Partner to the extent that a target level
of cash distributions to the Unitholders is achieved for any quarter. The
Amended and Restated Agreement of Limited Partnership of the Partnership dated
as of December 15, 1988, as amended (the "Partnership Agreement") provides that,
after an amount equal to $0.3647 per Unit (the "Target Distribution") has been
distributed for any quarter to Unitholders, the General Partner will receive 20%
of any then remaining Available Cash for such quarter as an incentive
distribution (in addition to its 2% regular distribution).
In August 1997, legislation was enacted which extends indefinitely the
Company's treatment as a partnership for federal income tax purposes provided
that the Company elects to be subject to a 3.5% tax on taxable gross income
beginning on January 1, 1998 (the treatment as a partnership had been scheduled
to expire on December 31, 1997). The Company has made such an election. The
requirement to pay this tax will reduce the amount of cash available at the end
of each quarter for distribution to unitholders.
FORWARD-LOOKING STATEMENTS
Certain statements in the Form 10-K, including, in particular, certain
statements under "Item 1. Business", "Item 3. Legal proceeedings" and "Item 7.
Management's Discussion and Analysis of Financial Condition and Results of
Operation", are forward-looking. These can be identified by the use of
forward-looking words or phrases such as "believe", "expect", "anticipate",
"should", "plan", "estimate" and "potential" among others. The Private
Securities Litigation Reform Act of 1995 provides a "safe harbor" for such
forward-looking statements. While these forward-looking statements are based on
the Partnership's reasonable current expectations, a variety of risks,
uncertainties and other factors, including many which are outside the control of
the Partnership, could cause the Partnership's actual results to differ
materially from the ancticipated results of expectations expressed in such
forward-looking statements. The risks, uncertainties and other factors that may
affect the operations, performance, development and results of the Partnership
include changes in the demand for and pricing of its commodity products, changes
in industry production capacities, changes in the supply of and costs of its
significant raw materials, and changes in applicable environmental, health and
safety laws and regulations.
ITEM 2. PROPERTIES
- ------------------
Construction of the Geismar complex began over thirty years ago. Acetylene,
methanol and VCM-A plants were completed in the early 1960s and ammonia and urea
plants were added during the period 1965 to 1967. A VCM-E plant and a
formaldehyde plant were added in the mid 1970s, a second formaldehyde plant was
brought on stream in 1986, and a third formaldehyde plant was brought on stream
in 1991. In 1983 Borden completed construction of a PVC resin plant at the
Geismar complex. During the early 1980s, the methanol, ammonia, and urea plants
were modernized, which reduced energy consumption and expanded capacity. The
urea plant was further modified to produce granular rather than prill product in
1993. The PVC resin facility at Illiopolis became operational in 1962, and was
significantly upgraded in
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the late 1980s. The Addis Facility began operations in 1979.
The Geismar complex is located on approximately 490 acres in Ascension Parish,
Louisiana, adjacent to the Mississippi River between Baton Rouge and New
Orleans. The Illiopolis PVC resin facility is located on approximately 45 acres
in central Illinois between Springfield and Decatur. The Addis Facility is
located on approximately 40 acres of a 220 acre site adjacent to the Mississippi
River, approximately 20 miles from the Geismar complex.
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The following table sets forth the approximate annual capacity of each of the
principal manufacturing plants at the Geismar complex and the PVC plants at
Illiopolis and Addis, all of which are owned by the Company except as noted.
<TABLE>
<CAPTION>
1988 1997
ANNUAL STATED CAPACITY ANNUAL STATED CAPACITY 8 YEAR CAPACITY
PLANTS (STATED IN MILLIONS) (STATED IN MILLIONS) PERCENTAGE INCREASE
- ------ --------------------- ---------------------- -------------------
<S> <C> <C> <C>
Geismar, LA:
PVC Polymers Products
PVC Resins.................. 400 lbs. 575 lbs. 43.8%
Acetylene-based VCM......... 320 lbs. 320 lbs. --
Ethylene-based VCM.......... 550 lbs. 650 lbs. 18.2%
Acetylene (1)............... 190 lbs. 200 lbs. 5.3%
Methanol and Derivatives
Methanol.................... 230 gals. 330 gals. 43.5%
Formaldehyde I.............. 210 lbs. 280 lbs. 33.3%
Formaldehyde II(2).......... 160 lbs. 180 lbs. 12.5%
Formaldehyde III............ -- 190 lbs. N/M
Nitrogen Products
Ammonia..................... .40 tons .40 tons --
Urea........................ .22 tons .27 tons 22.7%
Illiopolis, IL:
PVC Resins.................... 350 lbs. 400 lbs. 14.3%
Addis, LA:
PVC Resins.................... 450 lbs. 600 lbs. 33.3%
Total equivalent lbs.(3)........ 5,395 6,923 28.3%
</TABLE>
(1) 50% owned by the Company
(2) Also capable of producing urea-formaldehyde concentrate at an annual
stated capacity of 125 million pounds.
(3) Equivalent pounds is based on 6.63 pounds per gallon of methanol.
ITEM 3. LEGAL PROCEEDINGS
- ------- -----------------
FEDERAL ENVIRONMENTAL ENFORCEMENT PROCEEDING
- --------------------------------------------
On March 11, 1998, the Partnership and the DOJ reached an agreement (the
"Consent-Decree") in principle to resolve the enforcement action brought by the
DOJ against the Operating Partnership, the Partnership and the General Partner
in October 1994, and the Declaratory Judgement Action brought by the Partnership
against the United States. The complaint sought civil penalties for alleged
violations of RCRA, CERCLA, and the Clean Air Act at the Geismar facility, as
well as corrective action at that facility. More specifically, the federal
government's primary allegations included claims that (i) the Company's export
to South Africa of a partially depleted mercuric chloride catalyst for recycling
violated RCRA (see "Export of Partially Depleted Mercuric Chloride Catalyst");
--------------------------------------------------------
(ii) the Company should have applied for a RCRA permit for operation of its VCR
unit and related tanks before August 1991; and (iii) the Company should have
applied for a RCRA permit for the north trench sump at the Geismar complex
because such sump allegedly stored, or disposed of, hazardous waste. The
government's allegations included other claims related to these and other
alleged RCRA violations, as well as claims of alleged violations of immediate
release reporting requirements under CERCLA and requirements governing
particulate matter emissions under the Clean Air Act.
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The settlement provides for payment of a civil penalty of $3.6 million and
funding of $0.4 million for community based environmental programs, but it does
not include any admission of wrongdoing. The terms of the settlement also
provide for a specific and detailed program of groundwater and other remediation
at the Geismar facility that is consistent with various actions undertaken
previously, currently being undertaken, and planned to be undertaken in the
future, by the Partnership. Under certain circumstances, the EPA and the LDEQ
may require investigation and remediation beyond the specific terms of the
agreement. The Partnership, however, believes that the technical information and
knowledge regarding the nature of contamination at the site, and the need for
remediation, make it unlikely that investigation and remediation beyond that
which the Partnership has already planned for and is contemplated by the Consent
Decree will be required. The agreement also provides that the Partnership will
undertake a Supplemental Environmental Project to decommission its underground
injection wells and instead subject the waste to innovative source reduction.
The estimated cost of the project to the Partnership is $3.0 million. The
Partnership also agreed to apply for a RCRA permit for its VCR unit and related
tanks.
In 1985, the LDEQ and Borden entered into a settlement agreement ("Settlement
Agreement") that called for the implementation of a long-term groundwater and
soil remediation program at the Geismar complex to address contaminants,
including ethylene dichloride ("EDC"). Borden and the Company implemented the
Settlement Agreement, and worked in cooperation with the LDEQ to remediate the
groundwater and soil contamination. The Settlement Agreement contemplated,
among other things, that Borden would install a series of groundwater monitoring
and recovery wells and recovery trench systems. Borden has paid substantially
all the costs to date associated with the Settlement Agreement under the
provisions of the Environmental Indemnity Agreement. The Consent Decree that
will result from the agreement with the DOJ will establish new guidelines for
remediation of groundwater and soil contamination that was identified by the
Settlement Agreement; all future remediation of this groundwater and soil
contamination will be performed under the terms of the Consent Decree.
Remediation costs incurred under the Consent Decree, which are expected to be
several million dollars, will continue to be paid by Borden.
The terms of the Consent Decree also will settle all federal and state civil
issues regarding the export of partially depleted mercuric chloride catalyst.
In May 1995, certain adjoining landowners at the Geismar complex filed a
motion to intervene in the Geismar Enforcement Proceedings claiming rights under
CERCLA and RCRA to protect their property interests. The court granted a limited
intervention on November 15, 1995 and the Company is vigorously defending
against this intervention.
In April 1996 and April 1997, adjoining landowners filed separate tort actions
asserting personal injury and property value diminution as a result of releases
of hazardous materials from the Geismar complex. The Company plans to vigorously
defend against these actions.
Because of the complex nature of environmental insurance coverage and the
rapidly developing case law concerning such coverage, no assurance can be given
concerning the extent to which insurance may cover environmental claims against
the Company.
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EXPORT OF PARTIALLY DEPLETED MERCURIC CHLORIDE CATALYST
- -------------------------------------------------------
During the early 1990s, the Company shipped partially depleted mercuric
chloride catalyst to the facility of Thor Chemicals S.A. (PTY) Limited ("Thor")
in Cato Ridge, South Africa for recovery of mercury. In 1993 the LDEQ
determined that the partially depleted catalyst was not a hazardous waste,
although LDEQ reversed this position in 1994. The Company disagrees with this
reversal. The Company did not send mercury-containing sludge to the Thor
facility.
Thor's operations have included the production of mercuric chloride catalyst
and the recovery of mercury from partially depleted catalyst. Recovery of
mercury at Thor's facility was discontinued in March 1994 when the Department of
Health in South Africa refused to renew a temporary license that had been
granted to Thor. At such time, there were approximately 2,900 drums of
partially depleted catalyst at the facility which had been shipped by the
Company to Thor. In addition, in the spring of 1994 there were approximately
7,400 drums of other materials at the Thor facility which the Company had not
sent there.
In February 1995, Thor and three of its management personnel were tried by
South Africa for the common law crime of culpable homicide and a number of
alleged violations of the Machinery and Occupational Safety Act of 1983
("MOSA"), because of the deaths of two Thor employees. The prosecution alleged
that the deaths were the result of mercury poisoning. In exchange for a plea by
Thor that it had violated provisions of MOSA, the prosecution dropped the
homicide charges against Thor and all the charges against Thor's management
personnel. The court has sentenced Thor to a fine of R13,500, which is
equivalent to approximately $2,700. The Partnership is aware that a case
instituted in the United Kingdom by the relatives of two deceased Thor employees
together with a number of Thor Chemical employees allegedly suffering from
mercury poisoning, has been settled by the Thor Chemicals parent company. The
settlement involved a payment of R9,4 million (approximately $1.9 million) by
the Thor Chemicals parent company to the claimants. The Partnership is further
aware that a second group of Thor Chemicals employees has recently instituted
action against the Thor Chemicals parent company in the British High Court for
damages allegedly arising out of mercury poisoning.
A Commission of Inquiry, appointed by the President of South Africa,
commenced hearings in February 1996, and published the following terms of
reference: (1) to investigate the history and background of the acquisition of
mercury catalyst stockpiled by Thor as well as additional mercury-containing
sludge on the premises and to report on the further utilization or disposal
thereof; (2) to recommend the best practical environmental option to address the
problem of mercury-containing catalyst and/or waste currently on Thor's
premises; (3) to report the results of the Commission's inquiry to the President
of the Republic of South Africa as soon as conveniently possible; (4) to
investigate deficiencies in the regulation and enforcement relating to the
monitoring and control of mercury processing; and (5) to recommend steps which
could contribute to the minimization of risk and to the protection of workers
and the environment. The First Phase Report of the Commission of Inquiry was
handed to the President of South Africa on March 12, 1997 and was released to
the public in late April 1997. The brief of this First Phase of the
Report was to investigate the history and background of the acquisition of
23
<PAGE>
spent mercury catalyst stockpiled by Thor Chemicals as well as additional
mercury containing sludge on the premises and to report on the further
utilization or disposal thereof; and to recommend on the best practical
environmental option to deal with the problem of mercury dust containing
catalyst and/or waste currently present on Thor's premises.
The Report places the responsibility for the stockpile of spent mercury
catalyst as well as any environmental damage arising out of the operations of
the Thor Chemicals plant jointly in the hands of various South African
government officials responsible for administration and protection of the
environment and Thor Chemicals itself. The Report considers the return of the
stockpiled catalyst to the senders of the catalyst but concludes that this would
not be a satisfactory option for the disposal of the catalyst. The Commission
found that the only viable option is to treat the mercury waste in an
environmentally friendly manner by recycling it via incineration or roasting, at
the Thor Chemicals plant, once various environmental requirements have been met
by this plant. The commission finds that the cost of this incineration should
be born by Thor Chemicals.
In addition, the Minister of Water Affairs and Forestry has instructed his
department's regional office to investigate alleged water pollution at and near
the Thor facility. The Government of South Africa has not made any allegations
or asserted any claims against the Company.
The contract between the Company and Thor provides that title to, risk of
loss, and all other incidents of ownership of the partially depleted catalyst
would pass from the Company to Thor when the catalyst reached South Africa. The
Company does not believe that it is liable for disposing of the approximately
2,900 drums of partially depleted catalyst remaining at the Thor facility. This
is confirmed by the findings of the Commission of Inquiry thus far which place
no liability on the Partnership. The recommendations of the Commission of
Inquiry are, however, not binding on the South African Government. In the event
that the Company should be required to dispose of the approximately 2,900 drums
at the facility shipped by the Company, the Company estimates that such cost
would not be in excess of $4 million.
With regard to the environmental condition of the Thor facility, the
Commission of Inquiry has not, thus far, placed any liability on the Partnership
for any contamination or other conditions at that facility, nor has the
Partnership been notified by the South African Government of any such liability.
The findings of the Commission of Inquiry are of a non-binding nature and it is
impossible to determine what, if any, allegations any party may make during the
course of any further sittings of the Commission of Inquiry or generally in
connection with the Thor facility in the future. It is unclear under current
South African environmental law as to whether any such allegations, if made,
would be sustained against the Company, and the Company would vigorously defend
against any such allegations.
In connection with a federal grand jury investigation in the U.S. District
Court in New Jersey, the Company is providing documents and other
information with respect to the partially depleted catalyst matter. The
24
<PAGE>
Company has ceased exporting the partially depleted mercuric chloride catalyst
for recycling and is currently handling it as if it were a hazardous waste.
Accordingly, even if a court should determine that the partially depleted
catalyst was a hazardous waste when it was exported, the Company does not
anticipate that it would incur material additional expenditures to continue to
manage the partially depleted catalyst as a hazardous waste.
EMERGENCY PLANNING AND COMMUNITY RIGHT-TO-KNOW ACT PROCEEDING
- -------------------------------------------------------------
In February 1993, an EPA Administrative Law Judge held that the Illiopolis
facility had violated CERCLA and EPCRA by failing to report certain relief valve
releases, which occurred between February 1987 and July 1989, that the Company
believes are exempt from CERCLA and EPCRA reporting. The Company's petition for
reconsideration was denied, a penalty hearing has been scheduled, settlement
negotiations are ongoing and further appeals are possible. Management does not
believe that any ultimate penalty arising from this proceeding would have a
material adverse effect on the results of operations for the Company. The
proposed penalty in EPA's administrative complaint initiating this proceeding in
1991 was $1.0 million.
BORDEN ENVIRONMENTAL INDEMNITY
- ------------------------------
Under the Environmental Indemnity Agreement ("EIA"), subject to certain
conditions, Borden has agreed to indemnify the Company in respect of
environmental liabilities arising from facts or circumstances that existed and
requirements in effect prior to November 30, 1987, the date of the initial sale
of the Geismar and Illiopolis plants to the Company (the "Transfer Date"). The
Company is responsible for environmental liabilities arising from facts or
circumstances that existed and requirements in effect on or after the Transfer
Date. With respect to certain environmental liabilities that may arise from
facts or circumstances that existed and requirements in effect both prior to and
after the Transfer Date, Borden and the Company will share liabilities on an
equitable basis considering all of the facts and circumstances including, but
not limited to, the relative contribution of each to the matter and the amount
of time each has operated the asset in question (to the extent relevant). No
claims can be made under the EIA after November 30, 2002, and no claim can, with
certain exceptions, be made with respect to the first $500,000 of liabilities
which Borden would otherwise be responsible for thereunder in any year, but such
excluded amounts shall not exceed $3.5 million in the aggregate. Excluded
amounts under the EIA have aggregated approximately $3.5 million through
December 31, 1996.
FEDERAL WASTEWATER PERMIT
- -------------------------
The Geismar facility has a permit for each of its two wastewater outfalls. As
previously reported, the Company challenged conditions in one of these permits.
The challenged permit expired and, prior to the expiration, the Company applied
for a new permit. The Company has resolved the permit issues, and the
administrative matter is now closed.
OTHER LEGAL PROCEEDINGS
- -----------------------
The Company manufactures, distributes and uses many different chemicals in its
business. As a result of its chemical operations the Company is
subject to various lawsuits in the ordinary course of business which seek
25
<PAGE>
compensation for physical injury, pain and suffering, costs of medical
monitoring, property damage and other alleged harm. New or different damage
claims arising from the Company's various chemical operations may be made in the
future.
In addition, the Company is subject to various other legal proceedings and
claims which arise in the ordinary course of business. The management of the
Company believes, based upon the information it presently possesses, that the
realistic range of liability to the Partnership of these other matters, taking
into account the Partnership's insurance coverage, including its risk retention
program, and the Indemnity Agreement with Borden, would not have a material
adverse effect on the financial position or results of operations of the
Company.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
- ------- ---------------------------------------------------
No matter was submitted during the fourth quarter of 1997 to a vote of
security holders, through the solicitation of proxies or otherwise.
PART II
ITEM 5 MARKET FOR THE REGISTRANT'S COMMON EQUITY AND RELATED
- ------ -----------------------------------------------------
STOCKHOLDER MATTERS
-------------------
The high and low sales prices for the Common Units on February 27, 1998 were
$7 7/8 and 7 13/16 respectively. As of December 31, 1997, there were
approximately 37,900 holders of record of Common Units.
The following table sets forth the 1996 and 1995 quarterly Common Unit data:
1997 QUARTERS
----------------------------------
First Second Third Fourth
----- ------ ----- ------
Cash distribution declared $ 0.10 $ 0.45 $ 0.18 $ 0.10
Market price range:
High 12 1/4 11 5/8 11 15/16 9 15/16
Low 8 1/4 9 3/4 9 7 9/16
1996 QUARTERS
--------------------------------
First Second Third Fourth
----- ------ ----- ------
Cash distributions declared $0.10 $0.00 $0.15 $0.10
Market price range:
High 16 15 7/8 10 5/8 10 3/8
Low 12 5/8 10 8 9/16 8 1/8
26
<PAGE>
ITEM 6. SELECTED FINANCIAL DATA
- ------- -----------------------
The following table sets forth selected historical financial information for
the Company for each of the five years ended December 31, 1997.
1997 1996 1995 1994 1993
---- ------ ------ ------- -----
(in thousands except per Unit data, which is
net of 1% General Partner interest)
Net revenues $737,129 $709,203 $739,587 $657,752 $433,297
Income (loss) before
extraordinary item 5,597 4,828 150,926 146,405 (1,435)
Net income (loss) 5,597 4,828 144,014 146,405 (1,435)
Income (loss) per unit
before extra-
ordinary item - basic 0.15 0.13 4.07 3.94 (.04)
Net income (loss)
per Unit - basic 0.15 0.13 3.88 3.94 (.04)
Cash distributions
declared per Unit 0.83 0.35 4.66 3.52 .78
Total assets 500,186 525,705 568,507 542,904 444,304
Long-term debt 225,000 200,000 200,000 120,000 150,000
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
- ------- -------------------------------------------------
Condition and Results of Operations
-----------------------------------
OVERVIEW AND OUTLOOK
The Partnership's revenues are derived from three principal product groups:
(1) PVC Polymers Products, which consist of PVC resins, VCM, the principal
feedstock for PVC resins, and acetylene, (ii) Methanol and Derivatives and (iii)
Nitrogen Products, which consist of ammonia and urea.
The markets for and profitability of the Partnership's products have been, and
are likely to continue to be, cyclical. Periods of high demand, high capacity
utilization and increasing operating margins tend to result in new plant
investment and increased production until supply exceeds demand, followed by
periods of declining prices and declining capacity utilization until the cycle
is repeated. In addition, markets for the Partnership's products are affected
by general economic conditions and a downturn in the economy could have a
material adverse effect on the Partnership, including, but not limited to, its
ability to service its debt obligations. The demand for the Partnership's PVC
products is primarily dependent on the construction and automotive industries.
Methanol demand is also dependent on the construction industry, as well as the
demand for MTBE. Demand for the Partnership's Nitrogen Products is dependent
primarily on the agricultural and industrial industries.
The principal raw material feedstock is natural gas, the price of which has
been volatile in recent years and at recent historical high levels during the
past two years. The other principal feedstocks are ethylene and chlorine.
Prices for these raw materials may change significantly from
year to year.
27
<PAGE>
The Partnership experienced strong demand for its PVC Polymers Products in the
first half of 1995, particularly for its rigid and general purpose resins.
Increased activity in the construction industry resulted in increased demand for
rigid grade resin for end use in pipe and siding production. The automotive
industry requirements resulted in increased demand for general purpose resins.
However, during this period PVC customers began to build up their PVC inventory
in anticipation of rising PVC sales prices. This inventory buildup peaked
during the second quarter of 1995, resulting in reduced PVC purchases during the
second half of 1995. This led to a sharp decrease in PVC sales prices which
continued through the end of 1995. Prices for PVC improved somewhat during the
first half of 1996, but then declined due to competitive market conditions
experienced in the second half of 1996. Published prices for PVC during the
fourth quarter of 1996 declined to an average of approximately $0.32 per pound.
PVC prices repeated this trend again in 1997, with prices increasing through the
second quarter of 1997 but declining in the second half of the year to prices
similar to the fourth quarter of 1996. General competitive conditions and
reduced demand for PVC in the Far East will keep downward pressure on selling
prices through 1998.
In early 1995, due to strength in the construction industry, the Partnership
experienced increased demand for methanol and formaldehyde in downstream
applications, such as adhesives for plywood and other pressed wood products.
Methanol demand has also been affected by the use of MTBE to comply with certain
requirements of the Clean Air Act. The Partnership experienced continued strong
demand for methanol products throughout 1996. Supply disruptions in the industry
served to improve methanol pricing during 1997, with contract prices ending the
year at $0.58 per gallon. As supply is normalized and additional production
capacity is brought on-line in 1998, selling prices will face significant
downward pressure during the year.
Selling prices for ammonia and urea remained strong in 1995 and 1996 with
prices consistent with 1994 levels. Demand for ammonia and urea in India and
China, as well as worldwide supply disruptions, caused relatively tight markets
during the period. However, in 1997 worldwide production capacity for ammonia
and urea increased and China, a significant importer of urea, significantly
reduced urea imports. These conditions, along with more aggressive pricing by
producers in the former Soviet Union, have forced selling prices downward in
1997. These market conditions are expected to continue in 1998 which, along
with scheduled capacity increases during the year, will put continued downward
pressure on selling prices during the year.
28
<PAGE>
RESULTS OF OPERATIONS
The following table sets forth the dollar amount of revenues and the
percentage of total revenues for each of the principal product groups of the
Partnership (in thousands):
1997 1996 1995
--------- ----------- ------------
PVC Polymers Products $486,189 66% $464,496 65% $449,657 61%
Methanol and Derivatives 177,475 24% 145,982 21% 187,126 25%
Nitrogen Products 73,465 10% 98,725 14% 102,804 14%
-------- ---- ------ ---- ------- ---
Total Revenues $737,129 100% $709,203 100% $739,587 100%
======== ==== ======== ==== ======== ====
29
<PAGE>
The following table summarizes indices of relative average selling prices
received per unit of product sold per period for the three principal product
groups of the Partnership and relative average raw material costs per unit for
the principal raw materials (using 1985 = 100 as the base year for all products
sold or purchased per period). The price indices in the table reflect changes
in the mix and volume of individual products sold as well as changes in selling
prices.
Year Ended December 31,
1997 1996 1995
---- ---- ----
Average price received per
unit sold
PVC Polymers Products 117 111 133
Methanol and Derivatives 126 99 134
Nitrogen Products 119 138 149
Raw material costs per unit purchased
Natural Gas 105 109 69
Ethylene 136 151 173
Chlorine 137 99 92
Production volumes (1)
(in millions of pounds)
PVC Polymers Products 2,447 2,490 2,312
Methanol and Derivatives 2,696 2,663 2,805
Nitrogen Products 1,168 1,397 1,389
(1) Includes the production of intermediate products.
1997 COMPARED TO 1996
Total Revenues
Total revenues for 1997 increased $27.9 million or 4% to $737.1 million from
$709.2 million in 1996. This increase was the net result of a $21.7 million
increase in revenues from PVC Polymers Products, a $31.5 million increase in
Methanol and Derivatives revenues and a $25.3 million decrease in Nitrogen
Products revenues.
Total revenues for PVC Polymers Products increased 5% as a result of a 5%
increase in selling prices. Sales volume was essentially unchanged from 1996 to
1997.
Total revenues for Methanol and Derivatives increased 22% as a result of a
25% increase in selling prices, partially offset by a 2% decrease in sales
volumes. The increase in selling prices was due to the circumstances described
above.
30
<PAGE>
Total revenues for Nitrogen Products decreased 26% as a result of a 14%
decrease in selling prices and a 13% decrease in sales volumes. The softening of
the markets for ammonia and urea in 1997 was due to the worldwide changes in
demand and pricing described above.
Cost of Goods Sold
Total cost of goods sold increased 4% to $682.0 million in 1997 from $656.6
million in 1996. Expressed as a percentage of total revenues, cost of goods
sold remained at 93% of total revenues from 1996 to 1997.
Gross profit for PVC Polymers Products decreased 54% from 1996 to 1997. The
increase in selling prices for PVC in 1997 described above were more than offset
by increases in the cost of raw materials during the year, particularly vinyl
chloride monomer and chlorine. The cost of these raw materials increased 9% and
36%, respectively, from 1996 to 1997. These cost increases were partially
offset by a 16% decrease in the cost of ethylene year to year. Gross profit for
Methanol and Derivatives increased 184% from 1996 to 1997 primarily due to the
increase in selling prices described above. Gross margins for Nitrogen Products
decreased 98% primarily due to the decrease in selling prices described above.
Interest Expense
Interest expense during 1997 decreased $798 to $20.9 million from $21.7
million in 1996 due to a reduction in the average outstanding amounts borrowed
under the Partnership's credit facility from 1996 to 1997.
Incentive Distribution to General Partner
The General Partner incentive of $794 reflects the incentive distribution
declared in the second quarter of 1997. No quarterly incentive distributions
were declared during 1996.
Other Expense, Including Minority Interest
Other expense increased $1.3 million from 1996 to 1997, primarily due to the
write-off of costs associated with the Partnership's planned conversion to
corporate form which was terminated in the third quarter of 1997 due to a change
in federal tax law regarding master limited partnerships.
1996 COMPARED TO 1995
Total Revenues
Total revenues for 1996 decreased $30.4 million or 4% to $709.2 million from
$739.6 million in 1995. This decrease was the net result of a $14.8 million
increase in revenues from PVC Polymers Products, offset by decreases in revenues
from Methanol and Derivatives of $41.1 million and from Nitrogen Products of
$4.1 million.
Total revenues for PVC Polymers Products increased 3% as a result of a 23%
increase in volume offset by a 16% decrease in selling prices. The
31
<PAGE>
volume increase was due to the full year effect in 1996 of the Addis Facility
that was purchased May 1, 1995 and to generally strong demand for PVC resins.
Industry capacity expansions and continued softness in the export markets more
than offset the increased demand for PVC resins, the combination of which caused
the significant decrease in selling prices in 1996 for the industry and the
Partnership.
Total revenues for Methanol and Derivatives decreased 22% as a result of a 3%
increase in volume offset by a 25% decrease in selling prices. Methanol selling
prices remained stable in 1996, but on average were significantly below 1995
selling prices, which benefited from very high prices in early 1995 as discussed
above.
Total revenues for Nitrogen Products decreased 4% as a result of a 4% increase
in volume offset by an 8% decrease in selling prices. Although selling prices
declined from 1995 levels, generally strong market conditions for ammonia and
urea continued during 1996.
Costs of Goods Sold
Total costs of goods sold increased 27% to $656.6 million in 1996 from $516.5
million in 1995. The increase is partially attributable to increased PVC volumes
but is substantially due to an aggregate raw material cost increase of
approximately 24% comprised of significantly higher natural gas unit costs,
slightly higher chlorine costs, and ethylene costs that were lower than the high
1995 unit costs. Unit costs for natural gas increased 58% in 1996, adding
approximately $63 million to the Partnership's cost structure. The increase was
caused by the severe weather conditions in early 1996 combined with low industry
storage levels. This combination created elevated natural gas costs throughout
1996. As a percentage of total revenues, cost of goods sold increased to 93% of
revenues in 1996 from 70% in 1995, resulting in greatly reduced gross margins
and net income for the Partnership.
Interest Expense
Interest expense in 1996 increased 14% to $21.7 million due to the debt
associated with the acquisition of the Addis Facility.
Incentive Distribution to General Partner
No incentive distribution to the General Partner was generated in 1996 as no
quarterly cash distribution to Unitholders exceeded the Target Distribution. In
1995, each quarter's cash distribution exceeded the Target Distribution.
Extraordinary Charge on Early Extinguishment of Debt
The Partnership incurred a charge of $6.9 million, or 19 cents per Unit, in
1995 as a result of a prepayment premium on $150 million in debt retired during
the year. See Acquisition and Financing and Notes to Consolidated Financial
Statements, Note 5.
Net Income
Net income declined to $4.8 million in 1996 from $144.0 million in 1995.
32
<PAGE>
As discussed above, the decline is attributable to increased raw material
natural gas costs and reduced selling prices in all three principal product
groups of the Partnership.
LIQUIDITY AND CAPITAL RESOURCES
Cash Flows from Operations. Cash provided by operations increased to $46.9
million for 1997 from $38.5 million for 1996 primarily due to a slight increase
in net income and a favorable change in working capital. Cash provided by
operations for the year ended December 31, 1996 decreased to $38.5 million from
$225.6 million for 1995. The decrease was due to a significant decrease in net
income and an unfavorable change in working capital, primarily relating to
changes in accounts receivable and accounts payable.
Cash Flows from Investing Activities. Capital expenditures totaled $19.4
million and $14.6 million for 1997 and 1996, respectively. These expenditures
were primarily for environmental projects and other non-discretionary capital
expenditures consisting of a large number of relatively small projects.
The Partnership paid $100.4 million for the acquisition of a PVC manufacturing
facility in 1995. See Acquisition and Financing. Other capital expenditures
during 1995 totaled $27.0 million, $13.6 million for the expansion of facilities
and for other discretionary capital projects, and $13.4 million of which related
to non-discretionary projects and environmental and safety related projects.
Non-discretionary capital expenditures vary from year to year with normal
equipment renovation requirements.
Cash Flows from Financing Activities. The Partnership makes quarterly
distributions to Unitholders and the General Partner of 100% of its Available
Cash. Available Cash means generally, with respect to any quarter, the sum of
all cash receipts of the Partnership plus net reductions to reserves established
in prior quarters, less all of its cash distributions and net additions to
reserves in such quarter. These reserves are retained to provide for the proper
conduct of the Partnership's business, to stabilize distributions of cash to
Unitholders and the General Partner and as necessary to comply with the terms of
any agreement or obligation of the Partnership. Cash distributions of $30.8
million were made during 1997 compared to $30.5 million in 1996 and $213.1
million in 1995.
As discussed under Item 1 "Business" herein, there are various seasonality
factors affecting results of operations and, therefore, cash distributions. In
addition, the amount of Available Cash constituting Cash from Operations for any
period does not necessarily correlate directly with net income for such period
because various items and transactions affect net income and Available Cash
constituting Cash from Operations differently. For example, depreciation
reduces net income but does not affect Available Cash constituting Cash from
Operations, while changes in working capital items (including receivables,
accounts payable and other items) generally do not affect net income but do
affect such Available Cash. Moreover, as provided for in the Partnership
Agreements, certain reserves may be established which affect Available Cash
constituting Cash from Operations but do not affect cash balances in financial
statements. Such reserves have generally been used to set cash aside for
interest
33
<PAGE>
payments, capital expenditures and other accrued items.
Acquisition and Financing
On May 2, 1995, the Partnership, through the Operating Partnership, completed
the purchase of Occidental Chemical Corporation's Addis, Louisiana PVC
manufacturing facility and related assets. The cash purchase price for the Addis
assets was $100.4 million.
On May 1, 1995, the Partnership issued $200 million aggregate principal amount
of senior unsecured notes. The net proceeds from this offering were used to
prepay $150 million aggregate principal amount of outstanding notes plus a
related prepayment premium of $6.9 million reflected as an extraordinary charge
in 1995, and accrued interest. The remaining proceeds were used to fund a
portion of the purchase price of the Addis Facility.
Liquidity
The Partnership expects to satisfy its cash requirements, including the
requirements of the Addis Facility, through internally generated cash and
borrowings. In connection with the acquisition of the Addis Facility, the
Partnership entered into a revolving credit facility which provided a line of
credit for capital expenditures (including the acquisition), working capital and
general partnership purposes. Borrowings under this facility were $25.0 million
at December 31, 1996.
In December 1997, the Partnership entered into a new $100 million revolving
credit facility with generally more favorable terms than the previous facility.
The Partnership borrowed $25.0 million under the new facility, the proceeds of
which were used to repay the amount outstanding under the existing facility,
which was then terminated. The new credit facility expires in December 2002.
The new revolving credit agreement along with the senior unsecured notes
contain a number of financial and other covenants that management believes are
customary in lending transactions of these types, including restrictions on
quarterly cash distributions if compliance with certain covenants is not
maintained.
As discussed in Item 1, "Cash Distributions", the Partnership has elected to
be subject to a 3.5% tax on taxable gross income so as to extend indefinitely
its treatment as a partnership for federal income tax purposes. The requirement
to pay this tax will reduce the amount of cash available at the end of each
quarter for distribution to unitholders.
Capital Expenditures
The Partnership currently believes that the level of annual base capital
expenditures over the next several years will be in the range of $25 to $35
million per year. Total capital expenditures for 1998 are anticipated to be $30
to $35 million. Future capital expenditures would vary substantially if the
Partnership is required to undertake corrective action or incur other
environment compliance costs in connection with the proceedings discussed under
Item 3 "Legal Proceedings."
34
<PAGE>
The Partnership has agreed to purchase its joint venture partner's ownership
share of the acetylene plant and certain other facilities at the Geismar complex
on December 31, 1999. The purchase price is $10,000 payable over three years
plus the undepreciated value of the joint venture partner's share of capital
spent on the facilities from November 1997 to December 31, 1999, which is
estimated to be $7 to $9 million based on current plans.
Similar to other business entities, the Partnership will be impacted by the
inability of its computer application software programs to properly identify the
year 2000 due to a commonly used programming convention of using only two digits
to identify a year. Unless modified or replaced, these programs could fail or
create erroneous results when referencing the year 2000. Management is
assessing the extent and impact of this issue and is developing an action plan
to mitigate the possibility of business interruption or other risks. These
actions include the replacement of applications or programs that are unable to
properly identify the year 2000. The anticipated costs associated with the
implementation of new software applications, including the associated hardware,
is approximately $16,200, of which $8,644 is committed at December 31, 1997.
Management currently does not anticipate any significant business interruption
or other adverse impacts related to the year 2000 issue.
Environmental Expenditures
Annual environmental capital expenditures for 1995-1997 ranged from $1.4 to
$7.4 million. The 1998 budget for environmental capital expenditures is
approximately $15.0 million, and is included in the budget of $30 to $35 million
discussed above.
Annual non-capital environmental expenditures for 1995-1997 ranged from $17.9
to $21.6 million. The 1998 budget for non-capital environmental expenditures is
approximately $20 million.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
------- -------------------------------------------
Sequential
Index to Financial Statements Page
- ----------------------------- ----------
Report of Independent Accountants 51
Consolidated Statements of Operations for the years
ended December 31 1997, 1996 and 1995 52
Consolidated Statements of Cash Flows for the years
ended December 31, 1997, 1996 and 1995 53
Consolidated Balance Sheets as of December 31, 1997
and 1996 54
Consolidated Statements of Changes in Partners'
Capital for the years ended December 31, 1997,
1996 and 1995 55
Notes to Consolidated Financial Statements 56
35
<PAGE>
Selected Quarterly Financial Data (Unaudited)
- ---------------------------------------------
(in thousands except per Unit data, which is net of 1% General
Partner interest)
1997 QUARTERS
_________________________________________
First Second Third Fourth
------- -------- ------- --------
Revenues $194,682 $189,776 $180,890 $171,781
Gross Profit 6,645 34,146 12,434 1,920
Net Income (loss) (4,407) 21,246 (1,062) (10,180)
Net Income (loss)
per Unit - basic (0.12) 0.57 (0.03) (0.27)
1996 QUARTERS
________________________________________
First Second Third Fourth
------- -------- ------- --------
Revenues $170,585 $179,227 $182,814 $176,577
Gross Profit 5,766 14,002 17,571 15,304
Net Income loss (6,097) 1,505 5,381 4,039
Net Income (loss)
per Unit - basic (0.16) 0.04 0.14 0.11
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING
- ------- -----------------------------------------------------------
and Financial Disclosure
------------------------
No Form 8-K was issued by the Company for the two most recent years ended
December 31, 1997 reporting a change in or disagreement with accountants.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
- -------- --------------------------------------------------
The Partnership is a limited partnership (of which BCPM is the General
Partner) and has no directors or officers. The directors, officers and
employees of the General Partner perform management and non-supervisory
functions for the Partnership.
Management Organization - Joseph M. Saggese is Chairman, President and Chief
Executive Officer of BCPM. He is also an Executive Vice President of Borden and
President and Chief Executive Officer of Borden Chemicals, Inc. Wayne P.
Leonard, as Executive Vice President and Chief Operating Officer of BCPM,
reports directly to Mr. Saggese, and is responsible for the Partnership's
marketing and manufacturing operations.
Independent Committee - BCPM is required to maintain an Independent Committee
of its Board of Directors, which shall be composed of at least three directors,
each of whom is neither an officer, employee or director of Borden nor an
officer or employee of BCPM. Certain actions require special approval from the
Independent Committee. Such actions include an
36
<PAGE>
expansion of the scope of business of the Partnership, the making of material
capital expenditures, the material curtailment of operations of any plant, the
material expansion of capacity of any plant, and the amendment of or entry into
by the Partnership of any agreement with Borden. The members of the Independent
Committee are Edward H. Jennings, George W. Koch, and E. Linn Draper, Jr.
Mr. Koch is Of Counsel in Kirkpatrick & Lockhart, a law firm which represents
the Partnership and its affiliates, Borden and Borden Chemical, Inc., in
connection with environmental, insurance, and other matters. The Partnership
believes that the terms of such services are on terms no less favorable to the
Partnership and its affiliates than if such services were procured from any
other law firm competent to handle the same matters.
As sole stockholder of BCPM, Borden elects directors of BCPM on an annual
basis. Set forth below is certain information concerning the directors and
officers of BCPM.
Section 16 of the Securities Exchange Act of 1934 requires directors, certain
officers and owners of more than ten percent of a registered class of Company's
equity securities to report their holdings and transactions in BCP units.
Previously, certain rights payable only in cash were excluded from these
reporting requirements; however, that exclusion was rescinded as of August 15,
1996.
Following a legal analysis of the BCP Management 1995 Long-Term Incentive
Plan, it was determined that the phantom units and Unit Appreciation Rights
involved in that Plan should be reported by directors and certain officers.
Accordingly, filings for Messrs. Dieker, Draper, Jennings, Koch, Leonard, and
Saggese were reported on Form 4 filed in July 1997, later than required under
the SEC rules. Filings for Mr. John L. Russ III and Mr. James O. Stevning,
formerly the Executive Vice President-Sales and Marketing and Vice President,
Chief Financial Officer and Treasurer, respectively, of BCPM also were filed in
July 1997, later than required under SEC rules. In addition, an Initial
Statement of Beneficial ownership of securities on Form 3 for Mr. Nagel was
filed late following his election as Chief Financial Officer.
37
<PAGE>
Served in
Age on Present
Position and Office Dec. 31, Position
Name with General Partner 1997 Since
----------------- ----------------------------- ------- ---------
Joseph M. Saggese Director, Chairman, President
and Chief Executive Officer 66 1990
George W. Koch Director 71 1987
Edward H. Jennings Director 60 1989
E. Linn Draper, Jr. Director 55 1996
William H. Carter Director 44 1995
Clifton S. Robbins Director 39 1996
William F. Stoll,Jr. Director 49 1996
Wayne P. Leonard Executive Vice President,
Chief Operating Officer 56 1987
Christopher L. Nagel Vice President, Chief Financial
Officer and Treasurer 35 1997
Marshall D. Owens, Jr. Vice President - Manufacturing 54 1997
Lawrence L. Dieker Vice President, Secretary,
and General Counsel 59 1987
Joseph M. Saggese has been Chairman of the Board of Directors, President and
Chief Executive Officer of BCPM since July 1990. In July 1990, he was named
Vice President of Borden and President of the former Chemicals Division of
Borden. In January 1996 he was named President and Chief Executive Officer of
Borden Chemical, Inc., the successor to a major portion of the former Chemicals
Division of Borden.
George W. Koch is a director of BCPM. He has been Of Counsel in the law firm
of Kirkpatrick & Lockhart since January 1992. Prior to that he was a partner of
Kirkpatrick & Lockhart since April 1990.
Edward H. Jennings is a director of BCPM. He is also a professor and
President Emeritus of The Ohio State University. He served as president of The
Ohio State University from 1981 to 1990. Mr. Jennings is also a director of
Lancaster Colony, Inc., a manufacturer and marketer of food, automotive and
glass products.
E. Linn Draper, Jr. is a director of BCPM. He is also Chairman, President and
Chief Executive Officer of American Electric Power Company, Inc. and American
Electric Power Service Corporation, positions he has held since 1992. From 1987
to 1992, he was Chairman, President and Chief Executive Officer of Gulf States
Utility Company. Dr. Draper is currently a director of CellNet Data Systems,
Inc.
William H. Carter is a director of BCPM. He is also Executive Vice President
and Chief Financial Officer of Borden, a position he has held since April 1995.
Prior to joining Borden, he was a partner of Price Waterhouse LLP, a position he
held since 1986. He is a director of AEP Industries, Inc.
Clifton S. Robbins is a director of BCPM. He has been a member of KKR & Co.,
LLC since 1996 and was a General Partner of Kohlberg Kravis Roberts & Co. since
1995 and has been a General Partner of KKR Associates, L.P. since January 1995
and an Executive with Kohlberg Kravis Roberts & Co. since 1987. He is also a
Director of AEP Industries, Inc, IDEX Corporation,
38
<PAGE>
Kindercare Learning Centers, Inc., Newsquest Capital, PLC and Act III Cinemas,
Inc.
William F. Stoll, Jr. is a director of BCPM. He is also Senior Vice President
and General Counsel of Borden, Inc., a position he has held since July 1996.
Prior to joining Borden, he was Vice President and Deputy General Counsel of
Westinghouse Electric Corporation, a position he held since January 1993. From
January 1985 to January 1993, he was Deputy General Counsel of Westinghouse
Electric Corporation.
Wayne P. Leonard has been Executive Vice President of BCPM since 1995 and was
named Chief Operating Officer of BCPM in July 1997. During 1993 and 1994, Mr.
Leonard served as Vice President of Manufacturing of BCPM.
Christopher L. Nagel is Vice President, Chief Financial Officer and Treasurer
of BCPM, positions he has held since September 1997. From January 1996 to
August 1997 he was Corporate Controller of Borden Foods Corporation. From
August 1995 to December 1995 he was Special Project Director for Borden, Inc.
Prior thereto, he was a Senior Manager for Price Waterhouse LLP, a position he
held since 1993.
Marshall D. Owens, Jr. is Vice President of Manufacturing for BCPM, a position
he has held since October 1997. Prior thereto, he served as Director of
Manufacturing since 1993.
Lawrence L. Dieker is Vice President, General Counsel and Secretary of BCPM.
He is also a Vice President and General Counsel of Borden Chemical, Inc., a
position he has held since January 1996. He was previously Assistant General
Counsel of Borden, a position he held from 1982 to January 1996.
ITEM 11. EXECUTIVE COMPENSATION
- -------- ----------------------
The Partnership has no directors or officers. The directors and officers of
BCPM receive no direct compensation from the Partnership for services to the
Partnership. The Partnership reimburses BCPM for all direct and indirect costs
incurred in managing the Partnership.
During 1997 the three independent directors of BCPM received a retainer of
$15,000 per year plus a fee of $1,000 for each BCPM Board meeting attended. The
Board functions in part through its Independent and Audit Committees. The three
non-employee members of each of these committees are paid a meeting fee of $700
for each committee meeting attended. The committee chairman is also paid an
additional $100 for each committee meeting attended in that capacity. During
1997, the Board met nine times, the Independent Committee met ten times, and the
Independent and Audit Committees met jointly four times.
The following table sets forth all cash compensation paid and accrued by
Borden or BCPM and reimbursed by the Partnership for services rendered during
the three years ended December 31, 1997 by each of the Chief Executive Officer
and the three other executive officers of BCPM whose remuneration exceeded
$100,000 (the "Named Executives"). As indicated in the footnotes to the table,
certain of the executive officers included in the table received compensation in
excess of the amounts indicated from Borden in consideration for services
provided by such individual to Borden for which the Partnership did not
reimburse Borden. The Partnership only reimburses Borden for a portion of the
total compensation paid by Borden to Joseph M. Saggese in consideration for his
services as President and Chief Executive Officer of BCPM, and to Lawrence L.
Dieker in consideration for his services as Vice President, Secretary and
General Counsel. Had the Partnership been obligated to reimburse Borden for the
total compensation paid by Borden to Mr. Dieker, he would have been one of the
four most highly compensated executive officers of BCPM (other than the chief
executive officer) in addition to Messrs. Leonard, Nagel and Owens, Jr.
Summary Compensation Table
<TABLE> <CAPTION>
Long Term
Annual Compensation Compensation Awards
------------------------------------------ -------------------
Securities
Other Annual Underlying
Salary Bonus Compensation Options/SARs
Name of Principal Position Year ($) ($) ($) (a) (#)
- -------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Joseph M. Saggese 1995 112,002(b)
Chairman, President and 1996 127,677(b) 6,500
Chief Executive Officer 1997 123,750(b) 6,500
Wayne P. Leonard 1995 175,253 87,720 912 5,500
Executive Vice President, 2,430(c)
Chief Operating Officer 1996 185,711 174,930 8,039 5,500
1997 200,666 0 0 6,000
Christopher L. Nagel 1997 50,000(d) 0 46,680 0
Vice President, Chief
Financial Officer and
Treasurer
Marshall D. Owens, Jr. 1995 130,232 45,971 925 2,000
Vice President - 1,215(c)
Manufacturing 1996 136,863 92,740 6,175 2,500
1997 142,320 0 0 3,000
</TABLE>
39
<PAGE>
(a) Represents miscellaneous compensation such as executive
perquisities and relocation allowance/reimbursements.
(b) Represents approximate amount of reimbursement paid to Borden by
the Partnership in consideration for services provided by Mr. Saggese to
the Partnership. Mr. Saggese received aggregate salary from Borden of
$495,000, $450,000 and $390,833 for the years 1997, 1996 and 1995,
respectively. Additionally Mr. Sagesse received certain bonuses and other
compensation in consideration for his services rendered to Borden for which
the Partnership did not have any reimbursement obligations.
(c) Represents securities of Borden underlying Options/SARs.
(d) Mr. Nagel served as an officer and employee of BCPM for a portion of
1997. Had he served in his current capacity for the entire year, his annual
compensation would have exceeded $100,000.
The Board of Directors of BCPM has approved a long-term incentive plan for
management and employees of BCPM (and employees of Borden who provide support to
or perform services for BCPM). The plan is intended to provide incentives to the
management and employees of BCPM (and such employees of Borden) to enhance the
market value of the Units. Under the plan, awards of "phantom" appreciation
rights in the Holding Company are made to selected BCPM or Borden officers or
employees on the basis of or in relation to services performed, directly or
indirectly, for the benefit of the Company. Subject to certain restrictions,
such grantees would be entitled to exercise all or any portion of the phantom
appreciation rights granted to
40
<PAGE>
them. Upon exercise of any such rights, the grantee would be entitled to receive
from BCPM or Borden, an amount in cash calculated to award the grantee for any
actual appreciation in the market value of the Units in the Holding Company and
actual cash distributions made by the Holding Company in respect of the Units.
The benefits under the plan may be in addition to, and not in lieu of, the
benefits provided to management and employees of BCPM (and such employees of
Borden) under existing plans or employee benefit arrangements. BCPM (or Borden,
on behalf of BCPM) will be reimbursed by the Company for all payments made or
expenses incurred by BCPM (or Borden, on behalf of BCPM) under the plan. Under
the plan, an initial grant of approximately 61,500 phantom appreciation rights
was made during 1995; additional grants of 83,500 and 89,000 phantom
appreciation rights were made during 1996 and 1997, respectively.
The following table sets forth information concerning individual grants of
stock options and free standing unit appreciation rights ("UARs") made during
1997 to each of the Named Executives.
Option/UAR(a) Grants in Last Fiscal Year
----------------------------------------
<TABLE> <CAPTION>
Potential Realizable Value
at Assumed Annual Rates
of Stock Price Appreciation
Individual Grants for Option Term
---------------------------------------------------------- ---------------------------
Number of Percent Of
Securities Total Option
Underlying SARs Granted Exercise Or Cumulative
Option/SARs To Employees Base Price Expiration Phantom
Name Granted (#) In Fiscal Year ($/Sh) Date 5% ($) 10% ($) Units (b)
- --------------------- ------------- ------------- ----------- ---------- ------ ------ ----------
<S> <C> <C> <C> <C> <C> <C> <C>
Saggese, Joseph M. 6,500(c) 7.3 10.25 22-Apr-04 $27,123 $63,208 1,107.7
Leonard, Wayne P. 6,000(c) 6.7 10.25 22-Apr-04 25,037 58,346 3,449.8
Owens, Jr. Marshall D. 3,000(c) 3.4 10.25 22-Apr-04 12,518 29,173 1,373.5
</TABLE>
(a) UARs are unit appreciation rights which, (i) in the event the Fair
Market Value of one Unit equals or exceeds the Base Price of such UAR at
the time of exercise of such UAR, entitles the holder thereof to receive,
upon exercise of such UAR, cash in an amount equal to the excess of the
Fair Market Value of one Unit on the date of exercise over the exercise
price of such UAR and (ii) in the event the Fair Market Value of one Unit
is less than the exercise price of such UAR, upon exercise of such UAR,
reduces the cash payable due to the exercise of Phantom Units (as defined
in note (b)) in connection with the exercise of such UAR by an amount equal
to the difference between such Fair Market Value and such exercise price;
the "Fair Market Value" means the average of the high and low transaction
prices of a Unit as reported on the NYSE Composite Transactions on such
date.
(b) Phantom Units are the right receive, upon exercise thereof, cash in
an amount equal to the Fair Market Value of one Unit on the date of
exercise. On the date a cash distribution is made by the Partnership to the
Unit Holders, a credit of Phantom Units is made to each holder of UARs. The
number of Phantom Units credited to each holder's account equals the number
determined by dividing (i) the product of (A) the aggregate number of UARs
and Phantom Units held in such holder's account immediately prior to such
cash distribution multiplied by (B) the amount of the cash distribution per
Unit by (ii) the Fair Market Value of a Unit on the date of the cash
distribution. Upon an exercise of any UARs, Phantom Units which are derived
from such UARs are automatically exercised in connection therewith.
(c) The grants vest 50% after two years, with the balance vesting
after three years.
Fiscal Year-end Option/UAR Values
---------------------------------
<TABLE> <CAPTION>
Number of Securities
Underlying Unexercised Value of Unexercised
Options/UARS At In-the-Money Options/UARs
Fiscal Year-end (#) At Fiscal Year-End ($)
Name Exercisable/Unexercisable Exercisable/Unexercisable
- ---- ------------------------- -------------------------
<S> <C> <C>
Joseph M. Saggese 0/13,000 *
Wayne P. Leonard 2,750/14,250 *
Marshall D. Owens, Jr. 1,000/6,500 *
* None of the UARs were in-the-money
</TABLE>
Pension Plan
The executive officers named above are employees of Borden and participate in
Borden's pension plans. The Borden Employees Retirement Income Plan ("ERIP")
41
<PAGE>
for salaried employees was amended as of January 1, 1987, to provide benefit
credits of 3% of earnings which are less than the Social Security wage base for
the year plus 6% of earnings in excess of the wage base and an additional 1.5%
and 3% respectively for certain older employees. Earnings include annual
incentive awards paid currently but exclude any long-term incentive awards.
Benefits for service through December 31, 1986 are based on the plan formula
then effect and have been converted to opening balances under the plan. Both
opening balances and benefit credits receive interest credits at one-year
Treasury bill rates until the participant commences receiving benefit payments.
For the year 1997, the interest rate was 5.43%
The Company's supplemental pension plan provides for a grandfathering of
benefits for certain key employees as of January 1, 1983, including certain
executive officers, that, generally speaking, provide for the payment of any
shortfall if the sum of (a) the pension actually payable on retirement under the
ERIP (and any excess of supplemental plans), together with (b) the amount
(converted to a pension equivalent) attributable to Company contributions that
would be standing to the employee's credit at retirement under the Company's
Retirement Savings Plan if the employee had contributed at the maximum permitted
rate eligible for Company matching from December 31, 1983 until retirement, does
no equal or exceed the sum of (c) the retirement income calculated on the basis
of the December 31, 1982, ERIP pension formula (with certain adjustments), and
(d) the amount (converted to a pension equivalent) attributable to company
contribtuions (equal to 3.3% of compensation) that would be standing to the
employee's credit at retirement had the Company's Retirement Savings Plan as in
effect on January 1, 1983, been in effect continuously to retirement. The
projected pension figure for J.M. Saggese appearing at the end of this section
includes the effect of the foregoing grandfathering.
The ERIP contains additional transitional provisions for employees who met
certain age and service requirements on January 1, 1987. The transitional
minimum benefit is a final average pay benefit for service prior to 1988 based
on each year's earning plus a career average pay benefit based on
each year's earning for year 1988 through 1997 (1% of each year's earnings up to
the Social Security wage base plus 1-1/2% of excess).
Benefits vest on a graded five-year schedule for employees hired prior to July
1, 1990. Benefits vest after completion of five years of employment for
employees hired on or after July 1, 1990.
The Company has supplemental plans which will provide those benefits which are
otherwise produced by application of the ERIP formula, but which, under Section
415 or Section 401 (a) (17) of the Internal Revenue Code, are not permitted to
be paid though a qualified plan and its related trust.
The supplemental plan also provides a pension benefit using the ERIP formula
based on deferred incentive compensation awards and certain other deferred
compensation, which are not considered as part of compensation under the ERIP.
The total projected annual benefits payable under the formulas of the ERIP at
age 65 without regard to the Section 415 or 401 (a) (17) limits and recognizing
supplemental pensions as described above, are as follows for the above named
executive officers: Wayne P. Leonard - $50,542, Christopher L. Nagel and -
$28,067, Marshall D. Owens, Jr. - $30,609.
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
Joseph M. Saggese, Chairman, President and Chief Executive Officer and Wayne P.
Leonard, Executive Vice President and Chief Operating Officer, participate in
compensation decisions affecting executive officers and employees of BCPM.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND
- -------- ---------------------------------------------------
Management
----------
Since the Partnership is managed by its General Partner and has no Board of
Directors, there are no "voting securities" of the Partnership outstanding
within the meaning of Item 403(a) of Regulation S-K and Rule 12b-2 under the
Securities Exhange Act of 1934. To the knowledge of BCPM, no person is the
beneficial owner of more than five percent of the Units. As of December 31,
1997 the beneficial ownership of Units by all directors and officers of BCPM as
a group was approximately 22,630 Units, which represents less than one percent
of the total Units outstanding.
The following table shows for (i) each director, (ii) executive officer named
in the Summary Compensation Table and (iii) for all officers and directors as a
group, the beneficial ownership of Units as of December 31, 1997.
<TABLE>
<CAPTION>
Name of Beneficial Owner Units Percent of Units Held
- ----------------------- ------- ---------------------
<S> <C> <C>
Joseph M. Saggese 2,000 *
George W. Koch 14,100 *
Edward H. Jennings 1,000 *
Wayne P. Leonard 5,000 *
William H. Carter 500 *
Marshall D. Owens, Jr. 30 *
-------
All directors and executives officers
as a group 22,630 *
* Represents less than 1% of the outstanding Units
</TABLE>
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
- -------- ----------------------------------------------
The Partnership is managed by BCPM pursuant to the Partnership Agreement.
Under the Partnership Agreement BCPM is entitled to reimbursement of certain
costs of managing the Partnership. These costs include compensation and benefits
42
<PAGE>
payable to officers and employees of BCPM, payroll taxes, general and
administrative costs and legal and professional fees. Note 4 of Notes to
Consolidated Financial Statements of the Partnership contained on page 55 of
this Form 10-K Annual Report contains information regarding relationships and
related transactions.
As described in Item 1, "Purchasing and Processing Agreements", the
Partnership sells various products to Borden Chemical, Inc. under certain
purchase agreements and processing agreements. Mssrs. Carter, Robbins and
Stoll, Jr., who are directors of BCPM, are also directors of Borden Chemical,
Inc.
43
<PAGE>
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS
- -------- ----------------------------------------------------
ON FORM 8-K
-----------
(a) 1. Financial Statements
--------------------
a. The Consolidated Financial Statements, together with the report
thereon of Price Waterhouse LLP dated January 20, 1998 are contained
on pages 48 through 60 of this Form 10-K Annual Report.
2. Financial Statement Schedules
-----------------------------
None required.
3. Exhibits
--------
2.1(1) Asset Transfer Agreement dated as of August 12, 1994 and
amended as of January 10, 1995, and March 16, 1995, between
the Borden Chemicals and Plastics Operating Limited
Partnership (the "Operating Partnership") and Occidental
Chemical Corporation ("OxyChem") and the forms of VCM Supply
Agreement and PVC Tolling Agreement annexed thereto
3.0(2) Restated Certificate of Incorporation of BCPM
3.2(3) By-laws of BCPM
3.3(4) Amended and Restated Certificate of Limited Partnership of the
Partnership
3.4(4) Amended and Restated Certificate of Limited Partnership of the
Operating Partnership
3.5(4) Amended and Restated Agreement of Limited Partnership of the
Partnership dated as of December 15, 1988
3.6(5) First Amendment to the Amended and Restated Agreement of
Limited Partnership of the Partnership dated as of April
9, 1997
3.7(6) Second Amendment to the Amended and Restated Agreement of
Limited Partnership of the Partnership dated as of August
14, 1997
3.8(7) Amended and Restated Agreement of Limited Partnership of the
Operating Partnership, dated as of November 30, 1987
4.1(8) Form of Depository Receipt for Common Units
4.2(9) Indenture dated as of May 1, 1995 of 9.5% Notes due 2005
between the Operating Partnership and The Chase Manhattan Bank
(National Association), as Trustee
44
<PAGE>
4.3(5) Rights Agreement between the Partnership and Harris Trust and
Savings Bank, as Rights Agent, dated as of April 8, 1997.
4.4(6) First Amendment to Rights Agreement between the Partnership
and Harris Trust and Savings Bank, as Rights Agent, dated as
of August 14, 1997.
10.1 Revolving Credit Agreement, dated December 19, 1997, between
the Operating Partnership and the Chase Manhattan Bank, as
Agent and as a lender, and other lenders.
10.5(7) Service Agreement, dated as of November 30, 1987, between
Borden and the Operating Partnership
10.6(7) Intercompany Agreement, dated as of November 30, 1987, among
Borden, BCPM, the Partnership and the Operating Partnership
10.7(4) Borden and BCPM Covenant Agreement, dated as of December 15,
1988, among Borden and the Partnership
10.9(7) PVC Purchase Agreement, dated as of November 30, 1987, between
Borden and the Operating Partnership
10.10(7) Ammonia Purchase Agreement, dated as of November 30, 1987,
between Borden and the Operating Partnership
10.10.1(4) Amendment Agreement No. 1 to Ammonia Purchase Agreement,
dated as of December 15, 1988, between Borden and the
Operating Partnership
10.11(7) Urea Purchase Agreement, dated as of November 30, 1987,
between Borden and the Operating Partnership
10.11.1(4) Amendment Agreement No. 1 to Urea Purchase Agreement, dated
as of December 15, 1988, between Borden and the Operating
Partnership
10.12(7) Methanol Purchase Agreement, dated as of November 30, 1987,
between Borden and the Operating Partnership
10.12.1(4) Amendment Agreement No. 1 to Methanol Purchase Agreement,
dated as of December 15, 1988, between Borden and the
Operating Partnership
10.13(7) Formaldehyde Processing Agreement, dated as of November 30,
1987, between Borden and the
Operating Partnership
10.13.1(4) Amendment Agreement No. 1 to Formaldehyde
45
<PAGE>
Processing Agreement, dated as of December 15, 1988 between
Borden and the Operating Partnership
10.14(7) Urea-Formaldehyde Concentrate Processing Agreement, dated as
of November 30, 1987, between Borden and the Operating
Partnership
10.14.1(4) Amendment Agreement No. 1 to Urea-Formaldehyde Concentrate
Processing Agreement, dated as of December 15, 1988, between
Borden and the Operating Partnership
10.15(7) Use of Name and Trademark License Agreement, dated as of
November 30, 1987, among Borden, the Partnership and the
Operating Partnership
10.16(7) Patent and Know-how Agreement, dated November 30, 1987, among
Borden, the Partnership and the Operating Partnership
10.17(7) Environmental Indemnity Agreement, dated as of November 30,
1987, among the Partnership, the Operating Partnership and
Borden
10.18(7) Lease Agreement, dated as of November 30, 1987, between the
Operating Partnership and Borden
10.19(3) Indenture, dated as of June 1, 1962, among Monochem, Inc.,
Borden and Uniroyal Chemical Company, Inc. (as successor to
Uniroyal Inc., which was a successor to United States Rubber
Company)
10.20(3) Amendment to Indenture, dated as of December 30, 1981, among
Monochem, Inc., Borden and Uniroyal Chemical Company, Inc. (as
successor to Uniroyal, Inc.)
10.21(3) Restructuring Agreement, dated as of December 9, 1980, among
Borden, Uniroyal Chemical Company, Inc. (as successor to
Uniroyal, Inc.) and Monochem, Inc.
10.22(3) Amendment to Restructuring Agreement, dated as of December 31,
1981, among Borden, Uniroyal Chemical Company, Inc. (as
successor to Uniroyal, Inc.) and Monochem, Inc.
10.23(3) Restated Basic Agreement, dated as of January 1, 1982, between
Borden and Uniroyal Chemical Company, Inc. (as successor to
Uniroyal, Inc.)
10.24(3) Restated Operating Agreement, dated as of
46
<PAGE>
January 1, 1982, among Borden, Uniroyal Chemical Company, Inc.
(as successor to Uniroyal, Inc.) and Monochem, Inc.
10.25(3) Restated Agreement to Amend Operating Agreement, dated as of
January 1, 1983, among Borden, Uniroyal Chemical Company, Inc.
(as successor to Uniroyal, Inc.) and Monochem, Inc.
10.26(3) Operating Agreement for Oxygen and Acetylene Plants, dated
April 1, 1982, between Borden and BASF Wyandotte Corporation
(subsequently named BASF Corporation) ("BASF")
10.27(3) Amendment to Operating Agreement for Oxygen and Acetylene
Plants, dated August 22, 1984, between Borden and BASF
10.28(3) Second Amendment to Operating Agreement for Oxygen and
Acetylene Plants, dated December 14, 1984, between Borden and
BASF
10.29(3) Third Amendment to Operating Agreement for Oxygen and
Acetylene Plants, dated as of October 2, 1985, between Borden
and BASF
10.30(3) Fourth Amendment to Operating Agreement, dated August 25,
1987, between Borden and BASF
10.31(3) Fifth Amendment to Operating Agreement, dated November 10,
1987, between Borden and BASF
10.32(4) Sixth Amendment to Operating Agreement, dated February 11,
1988, between the Operating Partnership and BASF
10.33(3) Third Purchase Agreement, dated August 25, 1987, between
Borden and BASF
10.34(3) Operating Agreement, dated December 14, 1984 among Borden,
BASF, Liquid Air Corporation ("LAC") and LAI Properties, Inc.
("LAI")
10.35(3) Amendment No. 1 to Operating Agreement, dated October 2, 1985,
among Borden, BASF, LAC and LAI
10.36(4) Amendment No. 2 to the Operating Agreement, dated February 11,
1988, among Borden, the Operating Partnership, BASF, LAC and
LAI
10.37(3) Second Operating Agreement, dated October 2, 1985, among
Borden, BASF, LAC and LAI
10.38(4) Restated Second Operating Agreement, dated February 11, 1988
among Borden, the
47
<PAGE>
Operating Partnership, BASF, LAC and LAI
10.39(4) Acetylene Sales Agreement No. 1, dated February 11, 1988,
between the Operating Partnership and BASF
10.40(4) Acetylene Sales Agreement No. 2, dated February 11, 1988,
between the Operating Partnership and BASF
10.41(7) Railroad Car Master Sublease Agreement, dated as of November
30, 1987, between Borden and the Operating Partnership,
relating to ACF Industries, Incorporated Master Service
Contract
10.42(7) Railroad Car Master Sublease Agreement, dated as of November
30, 1987, between Borden and the Operating Partnership,
relating to Pullman Leasing Company Lease of Railroad
Equipment
10.43(7) Railroad Car Master Sublease Agreement, dated as of November
30, 1987, between Borden and the Operating Partnership,
relating to Union Tank Car Company Service Agreement
10.44(7) Railroad Car Master Sublease Agreement, dated as of November
30, 1987, between Borden and the Operating Partnership,
relating to General Electric Railroad Service Corporation Car
Leasing Agreement
10.45(7) Railroad Car Master Sublease Agreement, dated as of November
30, 1987, between Borden and the Operating Partnership,
relating to General American Transportation Corporation Tank
Car Service Contract
10.46(7) Railroad Car Sublease Agreement, dated as of November 30,
1987, between Borden and the Operating Partnership, relating
to EHF Leasing Corporation Railroad Equipment Lease
10.47(7) Railroad Car Sublease Agreement, dated as of November 30,
1987, between Borden and the Operating Partnership, relating
to Bank of New York Lease of Railroad Equipment (as amended)
10.48(3) Form of Rail Service Agreement between Borden and the
Operating Partnership
10.49(10) Form of Letter Agreement with Directors
48
<PAGE>
10.50(7) Illiopolis Indemnity Agreement
10.51(7) 1995 Long-Term Incentive Plan
__________________
(1) Filed as an exhibit to Borden Chemicals and Plastics Limited Partnership's
Quarterly Report on Form 10-Q for the quarter ended March 31, 1995.
Confidential treatment has been granted as to certain provisions.
(2) Filed as an exhibit to Borden Chemicals and Plastics Limited Partnership's
Quarterly Report on Form 10-Q for the quarter ended June 30, 1995.
(3) Filed as an exhibit to the Partnership's Registration Statement on Form S-1
(File No. 33-17057) and is incorporated herein by reference in this
Form 10-K Annual Report.
(4) Filed as an exhibit to the joint Registration Statement on Form S-1 and
Form S-3 of the Partnership, Borden, Inc. and Borden Delaware Holdings,
Inc. (File No. 33-25371) and is incorporated herein by reference in this
Form 10-K Annual Report.
(5) Filed as Exhibit 99.4 to the Registrant's Current Report on Form 8-K dated
April 8, 1997 (filed April 1997) (File No. 1-9699) and incorporated herein
by reference.
(6) Filed as Exhibit 99.3 to the Registrant's Current Report on Form 8-K dated
August 14, 1997 (filed August 18, 1997) (File No. 1-9699) and incorporated
herein by reference.
(7) Filed as an exhibit to the Partnership's Registration Statement on Form S-1
(File No. 33-18938) and is incorporated herein by reference in this
Form 10-K Annual Report.
(8) Filed as an exhibit to the Registrant's 1992 Form 10-K Annual Report and is
incorporated herein by reference in this Form 10-K Annual Report.
(9) Filed as an exhibit to the Registrant's 1995 Form 10-K Annual Report and is
incorporated herein by reference in this Form 10-K Annual Report.
(10) Filed as an exhibit to the Registrant's 1989 Form 10-K Annual Report and is
incorporated herein by reference in this Form 10-K Annual Report.
(11) Exhibits 10.8, 10.32, 10.36, 10.37 and 10.38, which were previously filed,
contain information which has been deleted pursuant to an application for
confidential treatment pursuant to Rule 406 of the Securities Act of 1933,
with respect to which an order has been granted by the Commission.
(b) Reports on Form 8-K
-------------------
No reports on Form 8-K were filed by the Registrant during the fourth
quarter 1997.
49
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) 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.
BORDEN CHEMICALS AND PLASTICS
LIMITED PARTNERSHIP
By BCP Management, Inc.,
General Partner
By /s/ Christopher L. Nagel
---------------------------
Christopher L. Nagel
Vice President,
Chief Financial Officer and
Treasurer
Date: March 27, 1998
Pursuant to the requirements of the Securities Exchange Act of 1934,
this report has been signed below by the following persons on behalf of the
Registrant and in the capacities (with BCP Management, Inc., General Partner)
indicated, on the date set forth above.
Signature TITLE
--------- -----
/s/ Joseph M. Saggese Director, Chairman, President
- --------------------------
Joseph M. Saggese and Chief Executive Officer
/s/ William H. Carter Director
- ----------------------------
William H. Carter
/s/ E. Linn Draper, Jr. Director
- ----------------------------
E. Linn Draper, Jr.
/s/ Edward H. Jennings Director
- ----------------------------
Edward H. Jennings
/s/ George W. Koch Director
- ---------------------------
George W. Koch
/s/ Clifton S. Robbins Director
- ----------------------------
Clifton S. Robbins
/s/ William F. Stoll, Jr. Director
- ----------------------------
William F. Stoll, Jr.
50
<PAGE>
REPORT OF INDEPENDENT ACCOUNTANTS
TO THE PARTNERS OF BORDEN CHEMICALS
AND PLASTICS LIMITED PARTNERSHIP
In our opinion, the consolidated balance sheets and the related consolidated
statements of operations, of changes in partners' capital and of cash flows
appearing on pages 52 to 63 present fairly, in all material respects, the
financial position of Borden Chemicals and Plastics Limited Partnership and its
subsidiaries at December 31, 1997 and 1996, and the results of their operations
and their cash flows for each of the three years in the period ended December
31, 1997, in conformity with generally accepted accounting principles. These
financial statements are the responsibility of the Partnership's management; our
responsibility is to express an opinion on these financial statements based on
our audits. We conducted our audits of these statements in accordance with
generally accepted auditing standards which require that we plan and perform the
audit to obtain reasonable assurance about whether the financial statements are
free of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the financial statements,
assessing the accounting principles used and significant estimates made by
management, and evaluating the overall financial statement presentation. We
believe that our audits provide a reasonable basis for the opinion expressed
above.
PRICE WATERHOUSE LLP
Columbus, Ohio
January 20, 1998
51
<PAGE>
BORDEN CHEMICALS AND PLASTICS LIMITED PARTNERSHIP
CONSOLIDATED STATEMENTS OF OPERATIONS
(IN THOUSANDS, EXCEPT PER UNIT DATA)
Year Ended December 31,
----------------------------
1997 1996 1995
-------- -------- --------
REVENUES
Net trade sales $602,907 $593,641 $608,070
Net sales to related parties 134,222 115,562 131,517
------- ------- -------
Total revenues 737,129 709,203 739,587
-------- -------- --------
EXPENSES
Cost of goods sold
Trade 562,159 549,315 424,492
Related parties 119,825 107,245 92,035
Marketing, general & administrative expense 24,622 24,167 22,127
Interest expense 20,898 21,696 19,066
General Partner incentive 794 29,783
Other expense,
including minority interest 3,234 1,952 1,158
-------- -------- --------
Total expenses 731,532 704,375 588,661
-------- -------- --------
INCOME BEFORE EXTRAORDINARY ITEM 5,597 4,828 150,926
Extraordinary charge on early extinguish-
ment of debt (6,912)
-------- -------- --------
NET INCOME 5,597 4,828 144,014)
Less 1% General Partner interest ( 56) ( 48) (1,440)
-------- -------- ---------
NET INCOME APPLICABLE TO LIMITED
PARTNERS' INTEREST $ 5,541 $ 4,780 $142,574
========= ======== =========
PER UNIT DATA - BASIC, NET OF 1% GENERAL PARTNER
INTEREST
Income per unit before extra-
ordinary item $ 0.15 $ 0.13 $ 4.07
Extraordinary charge per Unit (0.19)
--------
Net income per Unit $ 0.15 $ 0.13 $ 3.88
========= ======== ========
Average number of Units outstanding
during the year 36,750 36,750 36,750
========= ======== ========
Cash distributions declared per Unit $ 0.83 $ 0.35 $ 4.66
========= ======== ========
See notes to consolidated financial statements
52
<PAGE>
BORDEN CHEMICALS AND PLASTICS LIMITED PARTNERSHIP
CONSOLIDATED STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
YEAR ENDED DECEMBER 31,
-----------------------------------
1997 1996 1995
-----------------------------------
CASH FLOWS FROM OPERATIONS
Net income $ 5,597 $ 4,828 $ 144,014
Adjustments to reconcile net income
to net cash provided by operating
activities:
Extraordinary charge on early extinguish-
ment of debt 6,912
Depreciation 48,569 49,092 49,198
Increase (decrease) in cash from changes
in certain assets and liabilities:
Receivables 596 ( 4,065) 30,641
Inventories 961 ( 890) (10,612)
Payables (4,810) ( 3,080) 14,186
Incentive distribution payable 0 ( 1,910) ( 9,955)
Accrued interest 24 ( 77) 1,417
Other, net (4,031) ( 5,435) ( 213)
-------- ------- -------
46,906 38,463 225,588
-------- ------- -------
CASH FLOWS FROM INVESTING ACTIVITIES
Cash paid for acquisition (100,376)
Capital expenditures (19,426) ( 14,558) ( 27,085)
--------- --------- ---------
(19,426) ( 14,558) (127,461)
--------- --------- ---------
CASH FLOWS FROM FINANCING ACTIVITIES
Net proceeds from issuance of long-
term debt 25,000 200,000
Net (repayments of)
proceeds from short-term borrowings (25,000) ( 15,000) 40,000
Repayment of debt issuance costs ( 9,815)
Repayment of long-term debt, including
prepayment penalty (156,912)
Cash distributions paid (30,819) ( 30,459) (213,105)
-------- --------- ---------
(30,819) ( 45,459) (139,832)
--------------------------------
Decrease in cash and equivalents ( 3,339) ( 21,554) ( 41,705)
Cash and equivalents at beginning of year 10,867 32,421 74,126
-------- --------- ---------
Cash and equivalents at end of year $ 7,528 $ 10,867 $ 32,421
======== ========= ==========
SUPPLEMENTAL DISCLOSURES OF CASH FLOW
INFORMATION
Interest paid during the year $20,874 $ 21,773 $ 17,649
======== ========= =========
See notes to consolidated financial statements
53
<PAGE>
BORDEN CHEMICALS AND PLASTICS LIMITED PARTNERSHIP
CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS)
DECEMBER 31, DECEMBER 31,
1997 1996
------------ ------------
ASSETS
Cash and equivalents $ 7,528 $ 10,867
Accounts receivable (less allowance for
doubtful accounts of $475 and $589,
respectively)
Trade 72,718 72,908
Related parties 21,741 22,147
Inventories
Finished and in process goods 33,686 36,174
Raw materials and supplies 9,315 7,788
Other current assets 4,380 2,579
---------- ---------
Total current assets 149,368 152,463
---------- ---------
Investments in and advances to
affiliated companies 7,834 4,366
Other assets 52,784 49,405
---------- ---------
60,618 53,771
---------- ---------
Land 15,952 14,970
Buildings 45,050 44,597
Machinery and equipment 662,050 644,619
---------- ---------
723,052 704,186
Less accumulated depreciation ( 432,852) (384,715)
---------- ---------
Total assets 290,200 319,471
---------- ---------
$ 500,186 $ 525,705
========== =========
LIABILITIES AND
PARTNERS' CAPITAL
Accounts and drafts payable $ 57,002 $ 61,812
Cash distributions payable 3,712 3,712
Short-term borrowing 0 25,000
Accrued interest 3,209 3,185
Other accrued liabilities 21,111 16,516
---------- ---------
Total current liabilities 85,034 110,225
Long-term debt 225,000 200,000
Other liabilities 5,760 5,609
Minority interest in consolidated
subsidiary 1,314 1,571
---------- ---------
Total liabilities 317,108 317,405
---------- ---------
Commitments and contingencies (See Note 9)
Partners' capital
Limited Partners 182,718 207,680
General Partner 360 620
---------- ---------
Total partners' capital 183,078 208,300
---------- ---------
Total liabilities and partners' capital $500,186 $525,705
========== =========
See notes to consolidated financial statements
54
<PAGE>
BORDEN CHEMICALS AND PLASTICS LIMITED PARTNERSHIP
CONSOLIDATED STATEMENTS OF CHANGES IN PARTNERS' CAPITAL
(IN THOUSANDS)
LIMITED GENERAL
Partners PARTNER TOTAL
--------- ------- --------
Balances at December 31, 1994 $ 244,443 $ 1,292 $ 245,735
Net income 142,574 1,440 144,014
Cash distributions declared (171,255) (2,030) (173,285)
---------- ------- ---------
Balances at December 31, 1995 215,762 702 216,464
Net income 4,780 48 4,828
Cash distributions declared (12,862) (130) (12,992)
---------- ------- ---------
Balances at December 31, 1996 $ 207,680 $ 620 $ 208,300
Net income 5,541 56 5,597
Cash distribution declared (30,503) (316) (30,819)
---------- ------- ---------
Balances at December 31, 1997 $ 182,718 $ 360 $ 183,078
========== ======= =========
See notes to consolidated financial statements.
55
<PAGE>
BORDEN CHEMICALS AND PLASTICS LIMITED PARTNERSHIP
-------------------------------------------------
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
------------------------------------------
(In thousands except Unit and per Unit data)
1. ORGANIZATION AND BUSINESS
Borden Chemicals and Plastics Limited Partnership (the "Partnership") is a
Delaware limited partnership which owns a 98.9899% limited partner interest as
sole limited partner in Borden Chemicals and Plastics Operating Limited
Partnership (the "Operating Partnership"). BCP Management, Inc. ("BCPM"), a
wholly-owned subsidiary of Borden, Inc. ("Borden"), owns a 1% interest as the
sole general partner in the Partnership and a 1.0101% interest as the sole
general partner ("General Partner") in the Operating Partnership, resulting in
an aggregate 2% ownership interest in the partnerships. The General Partner's
interest in the Operating Partnership is reflected as minority interest in the
accompanying consolidated financial statements.
The Operating Partnership, acquired and operates the basic chemicals and
polyvinyl chloride ("PVC") resins operations of Borden which consist of highly
integrated plants in Geismar, Louisiana which produce basic petrochemical
products, PVC resins and industrial gases; a PVC resins plant located in
Illiopolis, Illinois; and a PVC resins plant in Addis, Louisiana purchased in
1995 (Note 3). The Partnership markets its commodity products to the
manufacturing, chemical and fertilizer industries primarily in the United
States.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
The significant accounting policies summarized below are in conformity with
generally accepted accounting principles; however, this is not the basis for
reporting taxable income to Unitholders.
Principles of Consolidation - The consolidated financial statements include
the accounts of the Partnership and the Operating Partnership after elimination
of interpartnership accounts and transactions.
Revenues - Sales and related cost of sales are recognized upon shipment of
products. Net trade and net related party sales are net of sales discounts and
product returns and allowances.
Cash Equivalents - The Partnership considers all highly liquid investments
purchased with an original maturity of three months or less to be cash
equivalents. Included in cash and equivalents are time deposits of $6,950 and
$9,500 at December 31, 1997 and 1996, respectively.
Inventories - Inventories are stated at the lower of cost or market. Cost is
determined using the average cost and first-in, first-out methods.
Investments in and advances to affiliated companies - The Partnership's 50%
ownership of a joint venture that provides utilities to the Geismar complex is
accounted for by the equity method. Utilities provided by the joint venture are
allocated to joint venture partners at cost. The cost of the Partnership's
proportionate share of utilities is included in cost of goods sold.
56
<PAGE>
The Partnership also owns a 51% interest in another partnership engaged
in manufacturing and marketing vinyl esters. Due to the significance of the
rights held by the minority partner, the Partnership's interest in this
partnership is accounted for using the equity method.
Other Assets and Liabilities - Debt issuance costs are capitalized and are
amortized over the term of the associated debt or credit agreement. Included in
other assets are spare parts totaling $23,400 and $22,436 at December 31, 1997
and 1996, respectively. Included in other accrued liabilities are accrued sales
discounts of $8,604 and $7,185 at December 31, 1997 and 1996, respectively.
Property and Equipment - The amount of the purchase price originally allocated
by the Partnership at its formation to land, buildings, and machinery and
equipment was based upon their relative fair values. Expenditures made
subsequent to the formation of the Partnership have been capitalized at cost
except that the purchase price for Addis assets (Note 3) has been allocated to
properties based upon their relative fair values.
Depreciation is recorded on the straight-line basis by charges to costs and
expenses at rates based on the estimated useful lives of the properties (average
rates for buildings - 4%; machinery and equipment - 8%).
Major renewals and betterments are capitalized. Maintenance, repairs and
minor renewals totaling $38,937 in 1997, 37,091 in 1996 and $34,298 in 1995 were
expensed as incurred. When properties are retired or otherwise disposed of, the
related cost and accumulated depreciation are removed from the accounts.
Income Taxes - Prior to December 31, 1997, The Partnership was not a separate
taxable entity for federal and state and local income tax purposes. Accordingly,
any taxable income or loss, which may have varied substantially from income or
loss reported under generally accepted accounting principles, was reflected in
the tax returns of the individual partners. In August, 1997 legislation was
enacted which extends indefinitely the Partnership's treatment as a partnership
for federal income tax purposes provided that the Partnership elects to be
subject to a 3.5% tax on taxable gross income beginning on January 1, 1998 (the
treatment as a partnership had been scheduled to expire on December 31, 1997).
The Partnership has made such an election.
The Partnership has not made any provision for deferred income taxes at
December 31, 1997 since the tax effect of the difference between the book and
tax bases of assets and liabilities affecting the determination of gross income
is not considered material to the Partnership's financial statements.
New Accounting Pronouncements - Effective for the year ended December 31,
1997, the Partnership adopted the method for computing and presenting income per
unit in accordance with Statement of Financial Accounting Standards (SFAS) No.
128, "Earnings per Share". Basic income per unit is computed by dividing net
income, after subtracting the General Partner's 1% interest, by the weighted
average number of units outstanding. Currently, there are no potentially
dilutive securities; accordingly, basic income per unit and diluted income per
unit are equivalent.
In June 1997, The Financial Accounting Standards Board (FASB) issued SFAS No.
130, "Reporting Comprehensive Income", and SFAS No.131
57
<PAGE>
"Disclosures about Segments of an Enterprise and Related information". SFAS No.
130 establishes standards for reporting of comprehensive income and its
components. The Partnership is required to adopt the provisions of SFAS No. 130
for its consolidated financial statements for the three months ending March 31,
1998. SFAS No. 131 requires certain disclosures about segment information in
interim and annual financial statements and related information about products
and services, geographic areas and major customers. The Partnership must adopt
the provisions of SFAS No. 131 for its consolidated financial statements for the
year ending December 31, 1998. The adoptions of SFAS No. 130 and SFAS No. 131
will not affect the Partnership's financial position, results of operations or
cash flows; changes in the form and content of its disclosures may be required.
Use of Estimates - The preparation of financial statements in conformity with
generally accepted accounting principles requires management to make estimates
and assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenditures during the
reporting period. Actual results could differ from those estimates.
3. ACQUISITION
On May 2, 1995, the Partnership, through the Operating Partnership, completed
the purchase of Occidental Chemical Corporation's Addis, Louisiana PVC
manufacturing facility and related assets. The cash purchase price for the Addis
assets was $100,400 and was financed by a new issue of senior unsecured notes
(Note 5).
The following financial information presents the pro forma effect of the
acquisition on the historical results of operations for the year ended December
31, 1995 as if the transactions occurred on January 1, 1995.
YEAR ENDED
DECEMBER 31, 1995
-----------------
Total revenues $794,393
Income before extraordinary item:
Income $155,168
Income per Unit, net of 1%
General Partner interest $ 4.18
4. RELATED PARTY TRANSACTIONS
The Partnership is managed by the General Partner. Under certain agreements,
the General Partner and Borden are entitled to reimbursement of costs incurred
relating to the business activities of the Partnership. The Partnership is
engaged in various transactions with Borden and its affiliates in the ordinary
course of business. Such transactions include, among other things, the sharing
of certain general and administrative costs, sales of products to and purchases
of raw materials from Borden or its related parties, and usage of rail cars
owned or leased by Borden.
Prior to July 1, 1997 Borden included the Partnership in its general
58
<PAGE>
insurance coverage, including liability and property damage coverage. The
Partnership reimbursed Borden for its share of the costs of the general
insurance coverage based on calculations made by Borden's Risk Management
Department. Under its risk retention program, Borden maintained deductibles of
$2,500, $500 and $500 per occurrence for property and related damages at the
Geismar, Illiopolis and Addis facilities, respectively, and deductibles ranging
from $100 to $3,000 per event for liability insurance.
After July 1, 1997 the Partnership participates in general insurance coverage
held in name by a Borden affiliate, however the costs of the coverage are
specifically apportioned to the Partnership by the insurance carriers and the
Partnership pays the premiums for the coverage directly to those carriers. The
deductibles for property and liability coverages are similar to those maintained
under the previous arrangement with Borden.
The employees of BCPM (together with employees providing support to or
services for BCPM) operate the Partnership and participate in various Borden
benefit plans including pension, retirement savings, postretirement other than
pensions and health and life insurance. The Partnership has no direct liability
for such benefits since the Partnership does not directly employ any of the
persons responsible for managing and operating the Partnership, but instead
reimburses Borden (on its own or BCPM's behalf) for their services. Charges to
the Partnership for such services are actuarially determined where appropriate.
The Partnership expenses the full amount of such charges but only reimburses
Borden (on its own or BCPM's behalf) for actual benefits paid. The difference
between cash payments to Borden (on its own or BCPM's behalf) and expense is
accrued on the Partnership's books.
Benefit plan and general insurance expenses, and allocation for usage of
resources such as personnel and data processing equipment were $5,902 in 1997,
$9,189 in 1996, and $11,628 in 1995. Management believes the allocation methods
used are reasonable. Although no specific analysis has been undertaken, if the
Partnership were to directly provide such services and resources at the same
cost as Borden, management believes the allocations would be indicative of costs
that would be incurred on a stand-alone basis.
The Partnership sells methanol, ammonia, urea and PVC resins to, and processes
formaldehyde and urea-formaldehyde concentrate for, Borden and its affiliates at
prices which approximate market.
The Partnership entered into long-term agreements with Borden which require
Borden to purchase from the Partnership at least 85% of Borden's requirements
for PVC resins, ammonia, urea and methanol and to utilize specified percentages
of the Partnership's capacity to process formaldehyde and urea-formaldehyde
concentrate.
On October 11, 1996, Borden sold its packaging division and as a part of the
transaction obtained a 34% ownership interest in the acquiring entity. The
packaging division had been a significant purchaser of PVC resins. After the
acquisition, sales prices remained substantially the same as sales to Borden.
Included in related party sales are sales of PVC to the acquiring entity of
$25,431 and $5,688 for 1997 and 1996, respectively. Included in related party
receivables are amounts due from acquiring entity for these sales of $4,445 and
$4,268 at December 31, 1997 and 1996, respectively. All other related party
sales and receivables are with
59
<PAGE>
Borden.
5. DEBT
On May 1, 1995, the Operating Partnership issued $200,000 aggregate principal
amount of senior unsecured 9.5% notes due 2005. The net proceeds from this
offering were used to prepay $150,000 aggregate principal amount of previously
outstanding notes, plus a related prepayment premium of $6,912 reflected as an
extraordinary charge in 1995, and accrued interest. The remaining proceeds were
used to fund a portion of the purchase price of the Addis facility.
The aggregate fair value of the Partnership's outstanding debt was $212,500 at
December 31, 1997 and $204,500 at December 31, 1996 as determined by the market
trading price for the notes at those dates.
On December 22, 1997 the Operating Partnership obtained a revolving credit
facility of up to $100,000 under a revolving credit agreement with a consortium
of banks and borrowed $25,000 under this facility to repay the amount
outstanding under the existing credit facility, which was then terminated. The
new revolving credit facility expires on December 19, 2002, at which time all
amounts outstanding must be repaid in full. Borrowings bear interest at rates
which are fixed at the time of the borrowing based on the current market rate.
A commitment fee tied to the Partnership's public debt rating is payable on the
unused portion of the new facility. At December 31, 1997 borrowings under the
new facility were $25,000 and bore interest at 6.719% while the commitment fee
on the unused portion was 0.25%. The new credit agreement permits certain
additional indebtedness outside of the agreement, none of which was utilized as
of December 31, 1997.
The revolving credit agreement and the senior unsecured notes contain a number
of financial and other covenants, including limitations on liens and sales of
assets. Cash distributions are generally permitted so long as compliance with
certain covenants is maintained.
6. ALLOCATION OF INCOME AND LOSS
Income and loss of the Partnership is allocated in proportion to the partners'
percentage interests in the Partnership, provided that at least 1% of the income
or loss of the Partnership and Operating Partnership is allocated to the General
Partner. For income tax purposes, certain items are specially allocated to
account for differences between the tax basis and fair market value of property
contributed to the Partnership by Borden and to facilitate uniformity of Units.
In addition, the Partnership Agreement generally provides for an allocation of
gross income to the Unitholders and the General Partner to reflect
disproportionate cash distributions, on a per Unit basis.
7. CASH DISTRIBUTIONS
The Partnership makes quarterly distributions to Unitholders and the General
Partner of 100% of its Available Cash. Available Cash each quarter generally
consists of cash receipts less cash disbursements (excluding cash distributions
to Unitholders and the General Partner) and reserves.
60
<PAGE>
Distributions of Available Cash are generally made 98% to the Unitholders and
2% to the General Partner, subject to the payment of an incentive distribution
to the General Partner after a target level of cash distributions to the
Unitholders is achieved for the quarter. The incentive distribution is 20% of
any remaining Available Cash for the quarter (in addition to the General
Partner's 2% regular distribution). Incentive distributions are accounted for as
an expense of the Partnership.
8. RIGHTS TO PURCHASE UNITS
On April 8, 1997, the General Partner declared a distribution of one common
unit purchase right (a "Right") for each outstanding common unit of the
Partnership and the number of Rights most closely approximating 1/99th of the
number of the units outstanding with respect to the General Partner's interest
in the Partnership.
The Rights are not exercisable until the earlier to occur of: (i) ten days
following a public announcement that a person or affiliated group of persons (an
"Acquiring Person") have acquired 15% or more of the outstanding units or (ii)
ten days (or such later date as may be determined by the General Partner prior
to someone becoming an Acquiring Person) following the commencement of, or
announcement of an intention to make, a tender or exchange offer the
consummation of which would result in a person or affiliated group of persons
acquiring 15% or more of the outstanding units. Until then, The Rights will
trade with the units and a Right will be issued with each additional unit
issued. The number of Rights outstanding at December 31, 1997 was 37, 121,212.
Each Right entitles the holder to purchase from the Partnership one common
unit at a price of $21.00, subject to adjustment in certain circumstances. In
the event an Acquiring Person acquires a 15% or more interest in the
Partnership, each holder of a Right, with the exception of the Acquiring Person,
will have the right to receive upon exercise of the Right at the then exercise
price of the Right, that number of Units having market value of two times such
exercise price. At any time prior to an Acquiring Person becoming such, the
General Partner may redeem the Rights in whole, but not in part, for $0.01 per
Right. The Rights, which do not have voting rights, generally will expire no
later than April 8, 2007.
9. COMMITMENTS AND CONTINGENCIES
Purchase Commitments:
The Partnership has entered into a fifteen year supply agreement for one of
its raw materials commencing in 1997 to assure long-term supply and minimize
price volatility. The purchase price for this product is based on its raw
material and variable costs, as well as fixed costs that will vary based on
economic indices, changes in taxes or regulatory requirements. The aggregate
amount at December 31, 1997 of minimum payments required under the agreement is
$48,325 with $4,753 per year of minimum payments required for the next five
years. Purchases under the agreement totaled $21,753 in 1997.
The Partnership has agreed to purchase its joint venture partner's ownership
share of certain production facilities at the Geismar complex on
61
<PAGE>
December 31, 1999. The purchase price is $10,000 payable over three years plus
the undepreciated value of the joint venture partner's share of capital spent on
the facilities from November 1997 to December 31, 1999.
The Partnership has undertaken actions to replace certain computer
applications or programs. The purchase commitment for costs associated with the
implementation of new software applications, including the associated hardware,
is $8,644 at December 31, 1997.
Environmental and Legal Proceedings
On October 27, 1994, the U.S. Department of Justice ("DOJ"), at the request of
the U.S. Environmental Protection Agency (the "EPA"), filed an action against
the Company and BCPM in the U.S. District Court for the Middle District of
Louisiana. The complaint seeks facility-wide corrective action and civil
penalties for alleged violations of the federal Resource, Conservation and
Recovery Act ("RCRA"), the federal Comprehensive Environmental Response,
Compensation and Liability Act ("CERCLA"), and the Clean Air Act at the Geismar
complex. If the Partnership is unsuccessful in this proceeding, or otherwise
subject to RCRA permit requirements, it may be subject to three types of costs:
(i) corrective action; (ii) penalties; and (iii) costs needed to obtain a RCRA
permit, portions of each which could be subject to the Environmental Indemnity
Agreement ("EIA") discussed below. As to penalties, although the maximum
statutory penalties that would apply in a successful enforcement action by the
United States would be in excess of $150,000, management believes that, assuming
the Partnership is unsuccessful, based on information currently available, and
an analysis of relevant case law and administrative decisions, the more likely
amount of any liability for civil penalties would not exceed several million
dollars. The Partnership and the DOJ have engaged in settlement discussions but
as of yet have not agreed on the terms of any settlement. The matter is
scheduled for trial in U.S. District Court on March 9, 1998.
The Partnership is subject to extensive federal, state and local environmental
laws and regulations which impose limitations on the discharge of pollutants
into the air and water, establish standards for the treatment, storage,
transportation and disposal of solid and hazardous wastes, and impose
obligations to investigate and remediate contamination in certain circumstances.
The Partnership has expended substantial resources, both financial and
managerial, and it anticipates that it will continue to do so in the future.
Failure to comply with the extensive federal, state and local environmental laws
and regulations could result in significant civil or criminal penalties, and
remediation costs.
Under the EIA, Borden has agreed, subject to certain specified limitations, to
indemnify the Partnership in respect of environmental liabilities arising from
facts or circumstances that existed and requirements in effect prior to November
30, 1987, the date of the initial sale of the Geismar and Illiopolis plants to
the Partnership. The Partnership is responsible for environmental liabilities
arising from facts or circumstances that existed and requirements that become
effective on or after such date. With respect to certain environmental
liabilities that may arise from facts or circumstances that existed and
requirements in effect both prior to and after such date, Borden and the
Partnership will share liabilities on an equitable basis considering all of the
facts and circumstances including, but not limited to, the relative contribution
of each to the matter and the amount of time each has operated the assets in
62
<PAGE>
question (to the extent relevant). No claims can be made under the EIA after
November 30, 2002, and no claim can, with certain exceptions, be made with
respect to the first $500 of liabilities which Borden would otherwise
be responsible for thereunder in any year, but such excluded amounts shall not
exceed $3,500 in the aggregate. Excluded amounts under the EIA have aggregated
$3,500 through December 31, 1996.
In connection with potential environmental matters, a $4,000 provision was
included in the Partnership's 1994 operating results. Because of various factors
(including the nature of any settlement with appropriate regulatory authorities
or the outcome of any proceeding, actual environmental conditions, the scope of
the application of the EIA and the timing of actions, if any, required to be
taken by the Partnership), the Partnership cannot reasonably estimate the full
range of costs it might incur with respect to the environmental matters
discussed herein. The costs incurred in any quarter or year could be material to
the Partnership's results of operations for such quarter or year, although, on
the basis of the relevant facts and circumstances, management believes this to
be unlikely. However, management believes that such costs should not have a
material adverse effect on the Partnership's financial position.
The Partnership is subject to legal proceedings and claims which arise in the
ordinary course of business. In the opinion of the management of the
Partnership, the amount of the ultimate liability, taking into account its
insurance coverage, including its risk retention program and Environmental
Indemnity Agreement with Borden would not materially affect the financial
position or results of operations of the Partnership.
10. EVENT (UNAUDITED) SUBSEQUENT TO DATE OF INDEPENDENT ACCOUNTANT'S REPORT
On March 11, 1998, the Partnership and the DOJ reached an agreement in
principle to resolve the enforcement action brought by the DOJ against the
Operating Partnership, the Partnership and the General Partner in October 1994,
and the Declaratory Judgement Action brought by the Partnership against the
United States. The settlement provides for payment of a civil penalty of $3.6
million and funding of $0.4 million for community based environment programs,
but it does not include any admission of wrongdoing. The terms of the settlement
also provide for a program of groundwater and other remediation at the Geismar
facility. The agreement also provides that the Partnership will undertake a
Supplemental Environmental Project to decommission its underground injections
wells and instead subject the waste to innovative source reduction. The
estimated cost of the project is $3.0 million. In light of the provision
previously established for this matter and Borden's obligation under the EIA to
pay for the remediation program, the settlement will not have a material effect
on the Partnership's financial position or results of operations.
63
<PAGE>
EXHIBIT 10.1
================================================================================
CREDIT AGREEMENT
AMONG
BORDEN CHEMICALS AND PLASTICS
OPERATING LIMITED PARTNERSHIP
THE SEVERAL LENDERS
FROM TIME TO TIME PARTIES HERETO
AND
THE CHASE MANHATTAN BANK,
AS ADMINISTRATIVE AGENT
DATED AS OF DECEMBER 19, 1997
================================================================================
<PAGE>
Table of Contents
-----------------
Page
SECTION 1
Definitions............. 1
-----------
SECTION 2
Amount and Terms of Credit
----------------------------
SECTION 2.1 Commitments ............................ 25
SECTION 2.2 Minimum Amount of Each Borrowing;
Maximum Number of Borrowings.......... 27
SECTION 2.3 Notice of Borrowing .................... 27
SECTION 2.4 Disbursement of Funds .................. 28
SECTION 2.5 Repayment of Loans; Evidence of Debt ... 30
SECTION 2.6 Conversions and Continuations .......... 30
SECTION 2.7 Pro Rata Borrowings .................... 31
SECTION 2.8 Interest ............................... 32
SECTION 2.9 Interest Periods ....................... 33
SECTION 2.10 Increased Costs, Illegality, etc ....... 34
SECTION 2.11 Compensation ........................... 36
SECTION 2.12 Change of Lending Office ............... 37
SECTION 2.13 Notice of Certain Costs ................ 37
SECTION 3
Letters of Credit
-----------------
SECTION 3.1 Letters of Credit ...................... 37
SECTION 3.2 Letter of Credit Requests .............. 38
SECTION 3.3 Letter of Credit Participations ........ 39
SECTION 3.4 Agreement to Repay Letter of Credit
Drawings............................... 42
SECTION 3.5 Increased Costs......................... 43
SECTION 3.6 Successor Letter of Credit Issuer ...... 44
SECTION 4
Fees; Commitments
-----------------
SECTION 4.1 Fees ................................... 45
SECTION 4.2 Voluntary Reduction of Revolving Credit
Commitments............................ 46
SECTION 4.3 Mandatory Termination of Commitments ... 46
i
<PAGE>
SECTION 5
Payments
--------
SECTION 5.1 Voluntary Prepayments .................. 47
SECTION 5.2 Mandatory Prepayments .................. 47
SECTION 5.3 Method and Place of Payment ............ 49
SECTION 5.4 Net Payments ........................... 49
SECTION 5.5 Computations of Interest and Fees....... 53
SECTION 6
Conditions Precedent to Initial Borrowing
-----------------------------------------
SECTION 6.1 Agreement............................... 53
SECTION 6.2 Closing Certificate .................... 53
SECTION 6.3 Authorization Proceedings .............. 53
SECTION 6.4 Documents............................... 53
SECTION 6.5 Fees ................................... 54
SECTION 6.6 Existing Credit Agreement .............. 54
SECTION 6.7 Legal Opinions.......................... 54
SECTION 7
Conditions Precedent to All Credit Events
----------------------------------------
SECTION 7.1 No Default; Representations and
Warranties............................. 54
SECTION 7.2 Notice of Borrowing; Letter of Credit
Request............................... 54
SECTION 8
Representations, Warranties and Agreements
------------------------------------------
SECTION 8.1 Organization ........................... 55
SECTION 8.2 Power and Authority .................... 55
SECTION 8.3 No Violation ........................... 56
SECTION 8.4 Litigation.............................. 56
SECTION 8.5 Margin Regulations ..................... 56
SECTION 8.6 Governmental Approvals ................. 56
SECTION 8.7 Investment Company Act and Public
Utility Holding Company Act............ 56
ii
<PAGE>
SECTION 8.8 True and Complete Disclosure ........... 57
SECTION 8.9 Financial Condition; Financial
Statements............................. 57
SECTION 8.10 Tax Returns and Payments ............... 58
SECTION 8.11 Compliance with ERISA .................. 58
SECTION 8.12 Subsidiaries ........................... 59
SECTION 8.13 Patents, etc ........................... 59
SECTION 8.14 Environmental Laws ..................... 59
SECTION 8.15 Properties ............................. 60
SECTION 9
Affirmative Covenants
---------------------
SECTION 9.1 Information Covenants .................. 60
SECTION 9.2 Books, Records and Inspections.......... 63
SECTION 9.3 Maintenance of Insurance ............... 63
SECTION 9.4 Payment of Taxes ....................... 63
SECTION 9.5 Existence............................... 64
SECTION 9.6 Compliance with Statutes, Obligations,
etc. .................................. 64
SECTION 9.7 ERISA .................................. 64
SECTION 9.8 Good Repair ............................ 65
SECTION 9.9 Transactions with Affiliates ........... 65
SECTION 9.10 Use of Proceeds......................... 66
SECTION 9.11 Changes in Business .................... 66
SECTION 10
Negative Covenants
------------------
SECTION 10.1 Limitation on Indebtedness ............. 66
SECTION 10.2 Limitation on Liens .................... 69
SECTION 10.3 Limitation on Fundamental Changes ...... 70
SECTION 10.4 Limitation on Sale of Assets ........... 71
SECTION 10.5 Limitation on Investments .............. 73
SECTION 10.6 Limitation on Restricted Payments ...... 74
SECTION 10.7 Limitations on Certain Amendments ...... 76
SECTION 10.8 Consolidated Total Debt to Consolidated
EBITDA Ratio........................... 76
SECTION 10.9 Consolidated EBITDA Coverage Ratio ..... 76
iii
<PAGE>
SECTION 11
Events of Default
-----------------
SECTION 11.1 Payments ............................... 76
SECTION 11.2 Representations, etc ................... 76
SECTION 11.3 Covenants .............................. 76
SECTION 11.4 Default Under Other Agreements ......... 77
SECTION 11.5 Bankruptcy, etc ........................ 77
SECTION 11.6 ERISA .................................. 78
SECTION 11.7 Judgments .............................. 78
SECTION 11.8 Change of Control ...................... 78
SECTION 12
The Administrative Agent
------------------------
SECTION 12.1 Appointment ............................ 79
SECTION 12.2 Delegation of Duties ................... 80
SECTION 12.3 Exculpatory Provisions ................. 80
SECTION 12.4 Reliance by Administrative Agent ....... 80
SECTION 12.5 Notice of Default ...................... 81
SECTION 12.6 Non-Reliance on Administrative Agent
and Other Lenders...................... 81
SECTION 12.7 Indemnification......................... 82
SECTION 12.8 Administrative Agent in Its Individual
Capacity............................... 83
SECTION 12.9 Successor Agent ........................ 83
SECTION 13
Miscellaneous
-------------
SECTION 13.1 Amendments and Waivers.................... 83
SECTION 13.2 Notices................................... 84
SECTION 13.3 No Waiver; Cumulative Remedies............ 85
SECTION 13.4 Survival of Representations and Warranties 85
SECTION 13.5 Payment of Expenses and Taxes............. 86
SECTION 13.6 Successors and Assigns; Participations
and Assignments.......................... 87
SECTION 13.7 Replacements of Lenders under Certain
Circumstances............................ 90
SECTION 13.8 Adjustments; Set-off...................... 91
SECTION 13.9 Counterparts.............................. 91
iv
<PAGE>
SECTION 13.10 Severability.............................. 92
SECTION 13.11 Integration............................... 92
SECTION 13.12 Governing Law............................. 92
SECTION 13.13 Submission to Jurisdiction; Waivers....... 92
SECTION 13.14 Acknowledgments........................... 93
SECTION 13.15 Waivers of Jury Trial..................... 93
SECTION 13.16 Confidentiality........................... 93
SCHEDULES
Schedule 1.1 Revolving Credit Commitments and
Addresses of Lenders
Schedule 10.1 Other Indebtedness
EXHIBITS
Exhibit A Form of Promissory Note
Exhibit B Form of Letter of Credit Request
Exhibit C-1 Form of Legal Opinion of Simpson Thacher &
Bartlett
Exhibit C-2 Form of Legal Opinion of Lawrence L. Dieker
Exhibit D Form of Assignment and Acceptance
Exhibit E Form of Closing Certificate
Exhibit F Form of Confidentiality Agreement
v
<PAGE>
CREDIT AGREEMENT dated as of December 19, 1997, among
BORDEN CHEMICALS AND PLASTICS OPERATING LIMITED PARTNERSHIP, a
Delaware limited partnership (the "Borrower"), the lending
--------
institutions from time to time parties hereto (each a "Lender"
------
and, collectively, the "Lenders"), and THE CHASE MANHATTAN BANK,
-------
as Administrative Agent (such term and each other capitalized
term used but not defined in this introductory statement having
the meaning provided in Section 1).
The Borrower has requested the Lenders to extend credit in the form of
Revolving Credit Loans at any time and from time to time prior to the Revolving
Credit Maturity Date, in an aggregate principal amount at any time outstanding
not in excess of $100,000,000 less the sum of (i) the aggregate Letter of Credit
Outstandings at such time and (ii) the aggregate principal amount of all
Swingline Loans then outstanding. The Borrower has requested the Letter of
Credit Issuer to issue Letters of Credit at any time and from time to time prior
to the L/C Maturity Date, in an aggregate face amount at any time outstanding
not in excess of $30,000,000. The Borrower has requested Chase to extend credit
in the form of Swingline Loans at any time and from time to time prior to the
Swingline Maturity Date, in an aggregate principal amount at any time
outstanding not in excess of $10,000,000.
Proceeds of Revolving Credit Loans and Swingline Loans may be used by
the Borrower and its Subsidiaries for working capital and for other general
corporate purposes. Letters of Credit will be used for general corporate
purposes of the Borrower and its Subsidiaries.
The parties hereto hereby agree as follows:
SECTION 1. Definitions. As used herein, the following terms shall
------------
have the meanings specified in this Section 1 unless the context otherwise
requires (it being understood that defined terms in this Agreement shall include
in the singular number the plural and in the plural the singular):
"ABR" shall mean, for any day, a rate per annum (rounded upwards, if
---
necessary, to the next 1/16 of 1%) equal to the greatest of (a) the Prime Rate
in effect on such day, (b) the Base CD Rate in effect on such day plus 1% and
(c) the Federal Funds Effective Rate in effect on such
<PAGE>
2
day plus 1/2 of 1%. Any change in the ABR due to a change in the Prime Rate, the
Three-Month Secondary CD Rate or the Federal Funds Effective Rate shall be
effective as of the opening of business on the effective day of such change in
the Prime Rate, the Three-Month Secondary CD Rate or the Federal Funds Effective
Rate, respectively.
"ABR Loan" shall mean each Loan bearing interest at the rate provided
--------
in Section 2.8(a) and, in any event, shall include all Swingline Loans.
"ABR Revolving Credit Loan" shall mean any Revolving Credit Loan
-------------------------
bearing interest at a rate determined by reference to the ABR.
"Adjusted Total Revolving Credit Commitment" shall mean at any time
------------------------------------------
the Total Revolving Credit Commitment less the aggregate Revolving Credit
Commitments of all Defaulting Lenders.
"Administrative Agent" shall mean Chase, together with its affiliates,
--------------------
as the arranger of the Revolving Credit Commitments and as the administrative
agent for the Lenders under this Agreement.
"Administrative Agent's Office" shall mean the office of the
-----------------------------
Administrative Agent located at 270 Park Avenue, New York, New York 10017, or
such other office in New York City as the Administrative Agent may hereafter
designate in writing as such to the other parties hereto.
"Affiliate" shall mean, with respect to any Person, any other Person
---------
directly or indirectly controlling, controlled by, or under direct or indirect
common control with such Person. A Person shall be deemed to control a
corporation if such Person possesses, directly or indirectly, the power (a) to
vote 10% or more of the securities having ordinary voting power for the election
of directors of such corporation or (b) to direct or cause the direction of the
management and policies of such corporation, whether through the ownership of
voting securities, by contract or otherwise.
"Aggregate Revolving Credit Outstandings" shall have the meaning
---------------------------------------
provided in Section 5.2(a).
"Agreement" shall mean this Credit Agreement, as the same may be
---------
amended, supplemented or otherwise modified from time to time.
<PAGE>
3
"Applicable Margin" shall mean, with respect to each Eurodollar Loan
-----------------
at any date, the applicable percentage set forth in the table below under the
caption "Applicable Margin", based upon the ratings of the Index Debt of the
Borrower in effect on such date:
Ratings Applicable
S&P/Moody's Margin
------------------ -----------
Category 1 BBB/Baa2 or higher 0.500%
Category 2 BBB-/Baa3 0.625%
Category 3 BB+/Ba1 0.750%
Category 4 BB/Ba2 0.875%
Category 5 Lower than BB/Ba2 1.250%
For purposes of the foregoing, (i) if no rating for the Index Debt of the
Borrower shall be available from either of Moody's or S&P, such rating agency
shall be deemed to have established a rating for Index Debt of the Borrower in
Category 5 unless the absence of a rating from such rating agency is due to
circumstances outside the control of the Borrower, in which case such rating
agency shall be deemed to have established a rating for Index Debt of the
Borrower in the same Category as the rating established by the other such rating
agency, (ii) if the ratings established or deemed to have been established by
Moody's and S&P for the Borrower shall fall within different Categories, the
Applicable Percentage shall be based upon the superior (or numerically lower)
Category, unless the ratings differ by more than one Category, in which case,
the governing rating shall be the rating next below the higher of the two, and
(iii) if any rating established or deemed to have been established by Moody's or
S&P shall be changed (other than as a result of a change in the rating system of
either Moody's or S&P), such change shall be effective as of the date on which
such change is first announced by the rating agency making such change. Each
such change in the Applicable Percentage shall apply to all Eurodollar Loans
that are outstanding at any time during the period commencing on the effective
date of such change and ending on the date immediately preceding the effective
date of the next such change. If the rating system of either Moody's or S&P
shall change prior to the Revolving Credit Maturity Date, the Borrower and the
Lenders shall negotiate in good faith to amend the references to specific
ratings in this definition to reflect such changed rating system.
<PAGE>
4
"Attributable Indebtedness" in respect of a sale and leaseback
-------------------------
arrangement means, as at the time of determination, the present value
(discounted at ABR, compounded annually) of the total obligations of the lessee
for rental payments during the remaining term of the lease included in such
arrangement (including any period for which such lease has been extended).
"Authorized Officer" shall mean the Chairman of the Board, the
------------------
President, the Chief Financial Officer, the Treasurer or any other senior
officer of the General Partner designated as such in writing to the
Administrative Agent by the General Partner.
"Available Commitment" shall mean an amount equal to the excess, if
--------------------
any, of (a) the amount of the Total Revolving Credit Commitment over (b) the sum
of (i) the aggregate principal amount of all Revolving Credit Loans (but not
Swingline Loans) then outstanding and (ii) the aggregate Letter of Credit
Outstandings at such time.
"Bankruptcy Code" shall have the meaning provided in Section 11.5.
---------------
"Base CD Rate" shall mean the sum of (a) the product of (i) the Three-
------------
Month Secondary CD Rate and (ii) a fraction, the numerator of which is one and
the denominator of which is one minus the C/D Reserve Percentage and (b) the C/D
Assessment Rate.
"BCPM" shall mean BCP Management, Inc., a Delaware corporation, and
----
its successors.
"Board" shall mean the Board of Governors of the Federal Reserve
-----
System of the United States (or any successor).
"Borden" shall mean Borden, Inc., a New Jersey corporation, and its
------
successors (other than as a result of any transaction described in clause (a) of
the definition of "Change in Control", as if Borden, Inc. were deemed for such
purposes to be the Borrower).
"Borrower" shall have the meaning provided in the preamble to this
--------
Agreement.
"Borrowing" shall mean and include (a) the incurrence of Swingline
---------
Loans from Chase on a given date and (b) the incurrence of one Type of Revolving
Credit Loan on a given date (or resulting from conversions on a given date)
having, in the case of Eurodollar Loans, the same Interest
<PAGE>
5
Period (provided that ABR Loans incurred pursuant to Section 2.10(b) shall be
--------
considered part of any related Borrowing of Eurodollar Loans).
"Business Day" shall mean (a) for all purposes other than as covered
------------
by clause (b) below, any day excluding Saturday, Sunday and any day that shall
be in The City of New York a legal holiday or a day on which banking
institutions are authorized by law or other governmental actions to close and
(b) with respect to all notices and determinations in connection with, and
payments of principal and interest on, Eurodollar Loans, any day that is a
Business Day described in clause (a) and which is also a day for trading by and
between banks in Dollar deposits in the relevant interbank Eurodollar market.
"Capitalized Lease Obligations" shall mean, as applied to any Person,
-----------------------------
all obligations under Capital Leases of such Person or any of its Subsidiaries,
in each case taken at the amount thereof accounted for as liabilities in
accordance with GAAP.
"Capital Lease", as applied to any Person, shall mean any lease of any
-------------
property (whether real, personal or mixed) by that Person as lessee that, in
conformity with GAAP, is, or is required to be, accounted for as a capital lease
on the balance sheet of that Person.
"Capital Stock" shall mean any and all shares, interests, rights to
-------------
purchase, warrants, options, participations or other equivalents of or interests
in (however designated) capital stock, including any preferred stock, and with
respect to a partnership, any interest therein (whether general or limited) that
confers on a Person the right to receive a share of the profits and losses of,
or distributions of assets of, such partnership; provided that Capital Stock
--------
shall not include any debt security that is convertible into or exchangeable for
Capital Stock.
"C/D Assessment Rate" shall mean for any day as applied to any ABR
-------------------
Loan, the annual assessment rate in effect on such day that is payable by a
member of the Bank Insurance Fund maintained by the Federal Deposit Insurance
Corporation or any successor thereto (the "FDIC") classified as well-capitalized
----
and within supervisory subgroup "B" (or a comparable successor assessment risk
classification) within the meaning of 12 C.F.R. (S) 327.4(a) (or any successor
provision) to the FDIC for the FDIC's insuring time deposits at offices of such
institution in the United States.
<PAGE>
6
"C/D Reserve Percentage" shall mean for any day as applied to any ABR
----------------------
Loan, the percentage (expressed as a decimal) that is in effect on such day, as
prescribed by the Board, for determining the reserve requirement for a
Depositary Institution (as defined in Regulation D of the Board) in respect of
new non-personal time deposits in Dollars having a maturity that is 30 days or
more.
A "Change in Control" occurs when (i) any person or "group" for
-----------------
purposes of Section 13(d) of the Exchange Act (a "Group"), other than Permitted
Holders, shall beneficially own, directly or indirectly, more than 50% of the
total voting power of all classes of Voting Stock of the General Partner, the
Holding Company or the Borrower, (ii)(A) the Borrower shall sell, lease, convey
or otherwise dispose of all or substantially all the Borrower's assets to any
person or Group or (B) the Borrower shall consolidate with or merge into another
person or another person shall consolidate with or merge into the Borrower, in
case of either of the foregoing, in a transaction in which the outstanding
Voting Stock of the Borrower is reclassified or changed into or exchanged for
cash, securities or other property, other than, in the case of either of clauses
(A) or (B), to, with or into, as applicable, one or more Permitted Holders or a
person, more than 50% of the total voting power of all classes of Voting Stock
of which, after giving effect to such transaction, is beneficially owned,
directly or indirectly, by one or more Permitted Holders or (iii) the Borrower,
the Holding Company or the General Partner shall adopt a plan of liquidation or
dissolution (unless all or substantially all the Borrower's assets are
distributed pursuant to such plan to one or more Permitted Holders).
"Chase" shall mean The Chase Manhattan Bank, a New York banking
-----
corporation, and any successor thereto by merger, consolidation or otherwise.
"Closing Date" shall mean the date on which all conditions precedent
------------
for the initial Borrowing hereunder, as set forth in Section 6, are satisfied.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
----
time to time, and the regulations promulgated and rulings issued thereunder.
Section references to the Code are to the Code, as in effect at the date of this
Agreement, and any subsequent provisions of the Code, amendatory thereof,
supplemental thereto or substituted therefor.
<PAGE>
7
"Commitment Fee Rate" shall mean, with respect to the Available
-------------------
Commitment on any day, the rate set forth in the table below under the caption
"Commitment Fee Rate", based upon the ratings of the Index Debt of the Borrower
in effect on such date:
Ratings Commitment
S&P/Moody's Fee Rate
------------------ -----------
Category 1 BBB/Baa2 or higher 0.150%
Category 2 BBB-/Baa3 0.200%
Category 3 BB+/Ba1 0.250%
Category 4 BB/Ba2 0.300%
Category 5 Lower than BB/Ba2 0.375%
For purposes of the foregoing, (i) if no rating for the Index Debt of the
Borrower shall be available from either of Moody's or S&P, such rating agency
shall be deemed to have established a rating for Index Debt of the Borrower in
Category 5 unless the absence of a rating from such rating agency is due to
circumstances outside the control of the Borrower, in which case such rating
agency shall be deemed to have established a rating for Index Debt of the
Borrower in the same Category as the rating established by the other such rating
agency, (ii) if the ratings established or deemed to have been established by
Moody's and S&P for the Borrower shall fall within different Categories, the
Commitment Fee Rate shall be based upon the superior (or numerically lower)
Category, unless the ratings differ by more than one Category, in which case,
the governing rating shall be the rating next below the higher of the two, and
(iii) if any rating established or deemed to have been established by Moody's or
S&P shall be changed (other than as a result of a change in the rating system of
either Moody's or S&P), such change shall be effective as of the date on which
such change is first announced by the rating agency making such change. If the
rating system of either Moody's or S&P shall change prior to the Revolving
Credit Maturity Date, the Borrower and the Lenders shall negotiate in good faith
to amend the references to specific ratings in this definition to reflect such
changed rating system.
"Confidential Information" shall have the meaning provided in Section
------------------------
13.16.
"Confidential Information Memorandum" shall mean the Confidential
-----------------------------------
Information Memorandum of the Borrower
<PAGE>
8
dated November 1997 delivered to the Lenders in connection with this Agreement.
"Consolidated EBITDA Coverage Ratio" shall mean the ratio of (a) the
----------------------------------
aggregate amount of EBITDA for the most recent Test Period to (b) Consolidated
Interest Expense for such Test Period.
"Consolidated Interest Expense" shall mean, for any period, the total
-----------------------------
interest expense, net of total interest income, of the Borrower and its
consolidated Subsidiaries for such period, including (i) interest expense
attributable to Capitalized Lease Obligations, (ii) capitalized interest, (iii)
commissions, discounts and other fees and charges owed with respect to letters
of credit and bankers' acceptance financing, and (iv) net costs under Hedging
Agreements (including amortization of fees), but excluding amortization of
deferred financing costs and any other non-cash items included in interest
expense.
"Consolidated Net Income" shall mean, for any period, the consolidated
-----------------------
net income (or loss) of the Borrower and its consolidated Subsidiaries for such
period, excluding extraordinary gains and losses, determined in accordance with
GAAP.
"Consolidated Net Tangible Assets" shall mean the total assets of the
--------------------------------
Borrower and its Subsidiaries appearing on a consolidated balance sheet of the
Borrower and its Subsidiaries (prepared in accordance with GAAP) as of the end
of the most recent fiscal quarter, after (a) adding thereto all Attributable
Indebtedness of the Borrower and its Subsidiaries in respect of any sale and
leaseback arrangement not capitalized on such balance sheet, (b) eliminating all
intercompany transactions and all amounts properly attributable to minority
interests, if any, in the stock and surplus of Subsidiaries and (c) deducting
therefrom (without duplicating of deductions):
(i) all liabilities of the Borrower and its Subsidiaries other than
Indebtedness;
(ii) the net book amount of all assets, after deducting any reserves
applicable thereto, which would be treated as intangible under GAAP,
including such items as goodwill, trademarks, trade names, service marks,
brand names, copyrights, patents and licenses, and rights with respect to
the foregoing, unamortized debt discount and expense and organization
expenses;
<PAGE>
9
(iii) any write-up in the book value of any asset on the books of the
Borrower or any Subsidiary resulting from a revaluation thereof subsequent
to the date of the Note Indenture (other than the write-up of the book
value of an asset made in accordance with purchase accounting under GAAP in
connection with the purchase of such asset);
(iv) all deferred charges (other than prepaid expenses); and
(v) all reserves, including, without limitation, reserves for deferred
income taxes, liabilities (fixed or contingent), depreciation,
obsolescence, depletion, insurance and inventory valuation, which appear or
under GAAP are required to appear on such balance sheet.
"Consolidated Senior Debt" shall mean, as of any date of
------------------------
determination, Consolidated Total Debt minus all Permitted Subordinated Debt
outstanding on such date.
"Consolidated Total Debt" shall mean, as of any date of determination,
-----------------------
the sum of (a) all Indebtedness of the Borrower and its Subsidiaries for
borrowed money outstanding on such date and (b) all Capitalized Lease
Obligations of the Borrower and its Subsidiaries outstanding on such date, all
calculated on a consolidated basis in accordance with GAAP.
"Consolidated Total Debt to Consolidated EBITDA Ratio" shall mean, as
----------------------------------------------------
of any date of determination, the ratio of (a) Consolidated Total Debt as of
such date to (b) EBITDA for the most recent Test Period ended on or prior to
such date.
"Credit Documents" shall mean this Agreement and any promissory notes
----------------
issued by the Borrower hereunder.
"Credit Event" shall mean and include the making (but not the
------------
conversion or continuation) of a Loan and the issuance of a Letter of Credit.
"Default" shall mean any event, act or condition that with notice or
-------
lapse of time, or both, would constitute an Event of Default.
"Defaulting Lender" shall mean any Lender with respect to which a
-----------------
Lender Default is in effect.
<PAGE>
10
"Disqualified Capital Stock" shall mean any Capital Stock that is
--------------------------
Redeemable Stock or Exchangeable Stock.
"Dollars" and "$" shall mean dollars in lawful currency of the United
------- -
States of America.
"Drawing" shall have the meaning provided in Section 3.4(b).
-------
"EBITDA" for any period shall mean (a) the Consolidated Net Income for
------
such period, plus (b) the sum of the following to the extent deducted in
calculating such Consolidated Net Income: (i) income tax expense, (ii)
Consolidated Interest Expense, (iii) depreciation expense, (iv) amortization
expense, (v) non-recurring charges or losses, (vi) any deductions for minority
interest expense, and (vii) all other noncash items reducing Consolidated Net
Income, less (c) the sum of all noncash items increasing Consolidated Net Income
and all non-recurring gains increasing Consolidated Net Income; provided,
--------
however, that if, subsequent to the first day of any Test Period, any Permitted
- -------
Acquisition occurs or any sale, transfer or other disposition of any material
property, business or assets of the Borrower or any Subsidiary is consummated
(excluding sales, transfers and dispositions in the ordinary course of
business), then EBITDA for such Test Period shall be determined on a pro forma
basis as though such Permitted Acquisition or sale, transfer or disposition, as
the case may be, had occurred on the first day of such Test Period, in each case
based upon the actual amounts attributable to the assets or Person acquired (in
the case of a Permitted Acquisition) or the property, businesses or assets sold,
transferred or otherwise disposed of, as the case may be, for the relevant
period.
"Environmental Claims" shall mean any and all administrative,
--------------------
regulatory or judicial actions, suits, demands, demand letters, claims, liens,
notices of noncompliance or violation, investigations (other than internal
reports prepared by the Borrower or any of its Subsidiaries (a) in the ordinary
course of such Person's business or (b) as required in connection with a
financing transaction or an acquisition or disposition of real estate) or
proceedings relating in any way to any Environmental Law or any permit issued,
or any approval given, under any such Environmental Law (hereinafter, "Claims"),
------
including, without limitation, (i) any and all Claims by governmental or
regulatory authorities for enforcement, cleanup, removal, response, remedial or
other actions or damages pursuant to
<PAGE>
11
any applicable Environmental Law and (ii) any and all Claims by any third party
seeking damages, contribution, indemnification, cost recovery, compensation or
injunctive relief resulting from Hazardous Materials or arising from alleged
injury or threat of injury to health, safety or the environment.
"Environmental Law" shall mean any applicable Federal, state, foreign
-----------------
or local statute, law, rule, regulation, ordinance, code and rule of common law
now or hereafter in effect and in each case as amended, and any binding judicial
or administrative interpretation thereof, including any binding judicial or
administrative order, consent decree or judgment, relating to the environment,
human health or safety or Hazardous Materials.
"ERISA" shall mean the Employee Retirement Income Security Act of
-----
1974, as amended from time to time. Section references to ERISA are to ERISA as
in effect at the date of this Agreement and any subsequent provisions of ERISA
amendatory thereof, supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean each person (as defined in Section 3(9)
---------------
of ERISA) that together with the Borrower or a Subsidiary would be deemed to be
a "single employer" within the meaning of Section 414(b) or (c) of the Code or,
solely for purposes of Section 302 of ERISA and Section 412 of the Code, is
treated as a single employer under Section 414 of the Code.
"Eurodollar Loan" shall mean any Revolving Credit Loan bearing
---------------
interest at a rate determined by reference to the Eurodollar Rate.
"Eurodollar Rate" shall mean, in the case of any Eurodollar Loan, with
---------------
respect to each day during each Interest Period pertaining to such Eurodollar
Loan, the rate of interest determined on the basis of the rate for deposits in
Dollars for a period equal to such Interest Period commencing on the first day
of such Interest Period appearing on Page 3750 of the Telerate screen as of
11:00 A.M., London time, two Business Days prior to the beginning of such
Interest Period. In the event that such rate does not appear on Page 3750 of
the Telerate Service (or otherwise on such service), the "Eurodollar Rate" for
the purposes of this paragraph shall be determined by reference to such other
publicly available service for displaying eurodollar rates as may be agreed upon
by the Administrative Agent and the Borrower or, in the absence of such
agreement, the "Eurodollar Rate" for the purposes of this paragraph
<PAGE>
12
shall instead be the rate per annum notified to the Administrative Agent by the
Reference Lender as the rate at which the Reference Lender is offered Dollar
deposits at or about 10:00 A.M., New York time, two Business Days prior to the
beginning of such Interest Period, in the interbank eurodollar market where the
eurodollar and foreign currency and exchange operations in respect of its
Eurodollar Loans are then being conducted for delivery on the first day of such
Interest Period for the number of days comprised therein and in an amount
comparable to the amount of its Eurodollar Loans, to be outstanding during such
Interest Period.
"Event of Default" shall have the meaning provided in Section 11.
----------------
"Exchange Act" shall mean the Securities Exchange Act of 1934 as in
------------
effect on the date hereof.
"Exchangeable Stock" shall mean any Capital Stock that is exchangeable
------------------
or convertible into another security (other than Capital Stock of the Borrower
that is neither Exchangeable Stock nor Redeemable Stock).
"Existing Credit Agreement" shall mean the Credit Agreement dated as
-------------------------
of May 2, 1995, as amended, among the Borrower, the banks party thereto and
Credit Suisse First Boston, as Agent.
"Federal Funds Effective Rate" shall mean, for any day, the weighted
----------------------------
average of the per annum rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers, as
published on the next succeeding Business Day by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day that is a Business Day,
the average of the quotations for the day of such transactions received by the
Administrative Agent from three federal funds brokers of recognized standing
selected by it.
"Fees" shall mean all amounts payable pursuant to, or referred to in,
----
Section 4.1.
"Final Date" shall mean the date on which the Revolving Credit
----------
Commitments shall have terminated, no Loans shall be outstanding and the Letter
of Credit Outstandings shall have been reduced to zero.
"Fronting Fee" shall have the meaning provided in Section 4.1(c).
------------
<PAGE>
13
"GAAP" shall mean generally accepted accounting principles in the
----
United States of America as in effect from time to time; provided, however, that
-------- -------
if there occurs after the date hereof any change in GAAP that affects in any
respect the calculation of any covenant contained in Section 10, the Lenders and
the Borrower shall negotiate in good faith amendments to the provisions of this
Agreement that relate to the calculation of such covenant with the intent of
having the respective positions of the Lenders and the Borrower after such
change in GAAP conform as nearly as possible to their respective positions as of
the date of this Agreement and, until any such amendments have been agreed upon,
the covenants in Section 10 shall be calculated as if no such change in GAAP has
occurred.
"General Partner" shall mean BCPM.
---------------
"Governmental Authority" shall mean any nation or government, any
----------------------
state or other political subdivision thereof, and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Guarantee Obligations" shall mean, as to any Per son, any obligation
---------------------
of such Person guaranteeing or intended to guarantee any Indebtedness of any
other Person (the "primary obligor") in any manner, whether directly or
---------------
indirectly, including, without limitation, any obligation of such Person,
whether or not contingent, (a) to purchase any such Indebtedness or any property
constituting direct or indirect security therefor, (b) to advance or supply
funds (i) for the purchase or payment of any such Indebtedness or (ii) to
maintain working capital or equity capital of the primary obligor or otherwise
to maintain the net worth or solvency of the primary obligor, (c) to purchase
property, securities or services primarily for the purpose of assuring the owner
of any such Indebtedness of the ability of the primary obligor to make payment
of such Indebtedness or (d) otherwise to assure or hold harmless the owner of
such Indebtedness against loss in respect thereof; provided, however, that the
-------- -------
term "Guarantee Obligations" shall not include endorsements of instruments for
deposit or collection in the ordinary course of business. The amount of any
Guarantee Obligation shall be deemed to be an amount equal to the stated or
determinable amount of the Indebtedness in respect of which such Guarantee
Obligation is made or, if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof (assuming such Person is required to
perform thereunder) as determined by such Person in good faith.
<PAGE>
14
"Hazardous Materials" shall mean (a) any petroleum or petroleum
-------------------
products, radioactive materials, friable asbestos, urea formaldehyde foam
insulation, transformers or other equipment that contain dielectric fluid
containing regulated levels of polychlorinated biphenyls, and radon gas; (b) any
chemicals, materials or substances defined as or included in the definition of
"hazardous substances", "hazardous waste", "hazardous materials", "extremely
hazardous waste", "restricted hazardous waste", "toxic substances", "toxic
pollutants", "contaminants", or "pollutants", or words of similar import, under
any applicable Environmental Law; and (c) any other chemical, material or
substance, exposure to which is prohibited, limited or regulated by any
Governmental Authority.
"Hedge Agreements" shall mean interest rate swap, cap or collar
----------------
agreements, interest rate future or option contracts, currency swap agreements,
currency future or option contracts and other similar agreements entered into by
the Borrower in order to protect the Borrower or any of its Subsidiaries against
fluctuations in interest rates or currency exchange rates.
"Holding Company" shall mean Borden Chemicals and Plastics Limited
---------------
Partnership, a Delaware limited partnership, and its successors.
"Indebtedness" of any Person shall mean (a) all indebtedness of such
------------
Person for borrowed money, (b) the deferred purchase price of assets or services
that in accordance with GAAP would be shown on the liability side of the balance
sheet of such Person, (c) the face amount of all letters of credit issued for
the account of such Person and, without duplication, all drafts drawn
thereunder, (d) all Indebtedness of a second Person secured by any Lien on any
property owned by such first Person, whether or not such Indebtedness has been
assumed, (e) all Capitalized Lease Obligations of such Person, (f) all
obligations of such Person under interest rate swap, cap or collar agreements,
interest rate future or option contracts, currency swap agreements, currency
future or option contracts and other similar agreements and (g) without
duplication, all Guarantee Obligations of such Person; provided that
--------
Indebtedness shall not include trade payables and accrued expenses, in each case
arising in the ordinary course of business.
"Index Debt" means the senior, unsecured, long-term, non-credit-
----------
enhanced Indebtedness of the Borrower.
<PAGE>
15
"Interest Period" shall mean, with respect to any Eurodollar Loan, the
---------------
interest period applicable thereto, as determined pursuant to Section 2.9.
"Investment" in any Person means any loan or advance to, any
----------
acquisition of Capital Stock, obligation or other security of, or capital
contribution or other investment in, such Person.
"KKR" shall mean each of Kohlberg Kravis Roberts & Co., L.P. and KKR
---
Associates, L.P.
"L/C Maturity Date" shall mean the date that is five Business Days
-----------------
prior to the Revolving Credit Maturity Date.
"L/C Participant" shall have the meaning provided in Section 3.3(a).
---------------
"L/C Participation" shall have the meaning provided in Section 3.3(a).
-----------------
"Lender" shall have the meaning provided in the preamble to this
------
Agreement.
"Lender Default" shall mean (a) the failure (which has not been cured)
--------------
of a Lender to make available its portion of any Borrowing or to fund its
portion of any unreimbursed payment under Section 3.3 or (b) a Lender having
notified the Administrative Agent and/or the Borrower that it does not intend to
comply with the obligations under Section 2.1(a), 2.1(c) or 3.3, in the case of
either clause (a) or clause (b) above, as a result of the appointment of a
receiver or conservator with respect to such Lender at the direction or request
of any regulatory agency or authority.
"Letter of Credit" shall mean each letter of credit issued pursuant to
----------------
Section 3.1.
"Letter of Credit Commitment" shall mean $30,000,000, as the same may
---------------------------
be reduced from time to time pursuant to Section 3.1.
"Letter of Credit Exposure" shall mean, with respect to any Lender,
-------------------------
such Lender's Revolving Credit Commitment Percentage of the Letter of Credit
Outstandings.
"Letter of Credit Fee" shall have the meaning provided in Section
--------------------
4.1(b).
<PAGE>
16
"Letter of Credit Issuer" shall mean Chase, any of its Affiliates or
-----------------------
any successor pursuant to Section 3.6.
"Letter of Credit Outstandings" shall mean, at any time, the sum of,
-----------------------------
without duplication, (a) the aggregate Stated Amount of all outstanding Letters
of Credit and (b) the aggregate amount of all Unpaid Drawings in respect of all
Letters of Credit.
"Letter of Credit Request" shall have the meaning provided in Section
------------------------
3.2.
"Lien" shall mean any mortgage, pledge, security interest,
----
hypothecation, assignment, lien (statutory or other) or similar encumbrance
(including any agreement to give any of the foregoing, any conditional sale or
other title retention agreement or any lease in the nature thereof).
"Loan" shall mean any Revolving Credit Loan or Swingline Loan.
----
"Mandatory Borrowing" shall have the meaning provided in Section
-------------------
2.1(c).
"Margin Stock" shall have the meaning provided in Regulation U.
------------
"Material Adverse Change" shall mean any event, development or
-----------------------
circumstance that has had or could reasonably be expected to have a material
adverse effect on (a) the business, assets, operations or financial condition of
the Borrower and its Subsidiaries taken as a whole, (b) the ability of the
Borrower to perform its obligations under this Agreement and the other Credit
Documents taken as a whole or (c) the rights of or benefits available to the
Lenders under this Agreement and the other Credit Documents taken as a whole.
"Material Adverse Effect" shall mean a material adverse effect on (a)
-----------------------
the business, assets, operations or financial condition of the Borrower and its
Subsidiaries taken as a whole, (b) the ability of the Borrower to perform its
obligations under this Agreement and the other Credit Documents taken as a whole
or (c) the rights of or benefits available to the Lenders under this Agreement
and the other Credit Documents taken as a whole.
"Material Subsidiary" shall mean, at any date of determination, any
-------------------
Subsidiary of the Borrower (a) whose total assets at the last day of the most
recent Test Period
<PAGE>
17
for which financial statements are required to have been delivered under Section
9.1 are equal to or greater than 5% of the consolidated total assets of the
Borrower and its Subsidiaries at such date or (b) whose gross revenues for such
Test Period were equal to or greater than 5% of the consolidated gross revenues
of the Borrower and its Subsidiaries for such period, in each case determined in
accordance with GAAP.
"Minimum Borrowing Amount" shall mean (a) with respect to a Borrowing
------------------------
of Revolving Credit Loans, $5,000,000 and (b) with respect to a Borrowing of
Swingline Loans, $100,000.
"Moody's" shall mean Moody's Investors Service, Inc. or any successor
-------
by merger or consolidation to its business.
"9.50% Notes" shall mean the 9.50% Notes Due May 1, 2005 of the
-----------
Borrower in an aggregate initial principal amount of $200,000,000.
"Non-Defaulting Lender" shall mean and include each Lender other than
---------------------
a Defaulting Lender.
"Non-Excluded Taxes" shall have the meaning provided in Section
------------------
5.4(a).
"Note Indenture" shall mean the Indenture dated as of May 1, 1995, as
--------------
the same may be amended, supplemented or otherwise modified from time to time,
between the Borrower and Chase, as trustee, pursuant to which the 9.50% Notes
were issued.
"Notice of Borrowing" shall have the meaning provided in Section 2.3.
-------------------
"Notice of Conversion or Continuation" shall have the meaning provided
------------------------------------
in Section 2.6.
"Obligations" shall mean all monetary amounts of every type or
-----------
description at any time owing to the Administrative Agent, any Lender or the
Letter of Credit Issuer pursuant to the terms of this Agreement or any other
Credit Document.
"Participant" shall have the meaning provided in Section 13.6(a)(ii).
-----------
<PAGE>
18
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
----
pursuant to Section 4002 of ERISA, or any successor thereto.
"Permitted Acquisition" shall mean the acquisition, by merger or
---------------------
otherwise, by the Borrower or any of its Subsidiaries of assets or capital stock
or other equity interests, so long as (a) such acquisition and all transactions
related thereto shall be consummated in accordance with applicable law; (b) such
acquisition shall, in the case of the acquisition of capital stock or other
equity interests by the Borrower or any Subsidiary, result in the issuer of such
capital stock or other equity interests becoming a Subsidiary and a direct
Subsidiary in the case of such an acquisition by the Borrower (except that
acquisitions that do not satisfy the requirements of this clause (b) may be
consummated so long as, after giving effect to any such acquisition, the total
consideration for all such acquisitions does not exceed 5% of the Borrower's
Consolidated Net Tangible Assets); (c) after giving effect to such acquisition,
no Default or Event of Default shall have occurred and be continuing; (d) the
Borrower shall be in compliance, on a pro forma basis after giving effect to
such acquisition (including any Indebtedness assumed or permitted to exist or
incurred pursuant to Sections 10.1(a)(ix) and 10.1(a)(x), respectively), with
the covenants set forth in Sections 10.8 and 10.9, as such covenants are
recomputed as at the last day of the most recently ended Test Period under such
Sections as if such acquisition had occurred on the first day of such Test
Period; and (e) such acquisition shall be of an entity engaged generally in the
same or related industries as the Borrower and its Subsidiaries (except that
acquisitions that do not satisfy the requirements of this clause (e) may be
consummated so long as, after giving effect to any such acquisition, the total
consideration for all such acquisitions does not exceed 10% of the Borrower's
Consolidated Net Tangible Assets).
"Permitted Holders" means, as of the date of determination, any and
-----------------
all of (a) Borden and its Subsidiaries, (b) KKR, its successor and Affiliates
and (c)(i) any officer or other member of the management employed by Borden,
BCPM, the Borrower or any Subsidiary for the 12-month period prior to the date
of determination; (ii) any Persons described in clause (i) who have retired
(including as the result of disability) after the initial date of this Agreement
from the employment of Borden, BCPM, the Borrower or any Subsidiary in the
ordinary course of business; (iii) family members or relatives of the Persons
described in clauses (i) and (ii); (iv) any trusts created
<PAGE>
19
for the benefit of the Persons described in clause (i), (ii), (iii) or (v); (v)
in the event of the incompetence or death of any of the Persons described in
clauses (i), (ii) and (iii), such Person's estate, executor, administrator,
committee or other personal representative, or beneficiaries, in each case who
at any particular date shall beneficially own or have the right to acquire,
directly or indirectly, Capital Stock and (vi) any Person, the management of
which is controlled by one or more Persons described in clause (i) or (ii). The
management of a Person shall be deemed to be controlled by the chief executive
officer (or equivalent executive) of such Person.
"Permitted Investments" shall mean (a) securities issued or
---------------------
unconditionally guaranteed by the United States government or any agency or
instrumentality thereof, in each case having maturities of not more than 24
months from the date of acquisition thereof; (b) securities issued by any state
of the United States of America or any political subdivision of any such state
or any public instrumentality thereof or any political subdivision of any such
state or any public instrumentality thereof having maturities of not more than
24 months from the date of acquisition thereof and, at the time of acquisition,
having an investment grade rating generally obtainable from either S&P or
Moody's (or, if at any time neither S&P nor Moody's shall be rating such
obligations, then from another nationally recognized rating service); (c)
commercial paper issued by any Lender or any bank holding company owning any
Lender; (d) commercial paper maturing no more than 12 months after the date of
creation thereof and, at the time of acquisition, having a rating of at least A-
2 or P-2 from either S&P or Moody's (or, if at any time neither S&P nor Moody's
shall be rating such obligations, an equivalent rating from another nationally
recognized rating service); (e) domestic and eurodollar certificates of deposit
or bankers' acceptances maturing no more than two years after the date of
acquisition thereof issued by any Lender or any other bank having combined
capital and surplus of not less than $250,000,000 in the case of domestic banks
and $100,000,000 (or the dollar equivalent thereof) in the case of foreign
banks; (f) repurchase agreements with a term of not more than 30 days for
underlying securities of the type described in clauses (a), (b) and (e) above
entered into with any bank meeting the qualifications specified in clause (e)
above or securities dealers of recognized national standing; and (g) shares of
investment companies that are registered under the Investment Company Act of
1940 and invest solely in one or more of the types of securities described in
clauses (a) through (f) above.
<PAGE>
20
"Permitted Liens" shall mean (a) Liens for taxes, assessments or
---------------
governmental charges or claims not yet due or which are being contested in good
faith and by appropriate proceedings for which appropriate reserves have been
established in accordance with GAAP; (b) Liens in respect of property or assets
of the Borrower or any of its Subsidiaries imposed by law, such as carriers',
warehousemen's and mechanics' Liens and other similar Liens arising in the
ordinary course of business, in each case so long as such Liens arise in the
ordinary course of business and do not individually or in the aggregate have a
Material Adverse Effect; (c) Liens arising from judgments or decrees in
circumstances not constituting an Event of Default under Section 11.7; (d) Liens
incurred or deposits made in connection with workers' compensation, unemployment
insurance and other types of social security, or to secure the performance of
tenders, statutory obligations, surety and appeal bonds, bids, leases,
government contracts, performance and return-of-money bonds and other similar
obligations incurred in the ordinary course of business; (e) ground leases in
respect of real property on which facilities owned or leased by the Borrower or
any of its Subsidiaries are located; (f) easements, rights-of-way, restrictions,
minor defects or irregularities in title and other similar charges or
encumbrances not interfering in any material respect with the business of the
Borrower and its Subsidiaries taken as a whole; (g) any interest or title of a
lessor or secured by a lessor's interest under any lease permitted by this
Agreement; (h) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of customs duties in connection with the
importation of goods; (i) Liens on goods the purchase price of which is financed
by a documentary letter of credit issued for the account of the Borrower or any
of its Subsidiaries, provided that such Lien secures only the obligations of the
--------
Borrower or such Subsidiaries in respect of such letter of credit to the extent
permitted under Section 10.1; and (j) leases or subleases granted to others not
interfering in any material respect with the business of the Borrower and its
Subsidiaries, taken as a whole.
"Permitted Subordinated Indebtedness" shall mean Indebtedness for
-----------------------------------
borrowed money of the Borrower which (a) is unsecured, (b) is not guaranteed by
any Subsidiary, (c) has terms and conditions (including, without limitation,
covenants, events of default, redemption rights and other provisions) customary
for publicly issued subordinated debt securities of comparable credit quality at
the time of issuance, (d) matures after, and does not require any scheduled
repayment of principal prior to, the date that is one year after the Revolving
Credit Maturity Date and
<PAGE>
21
(e) shall contain or have applicable thereto subordination provisions that the
Borrower and the Administrative Agent reasonably agree to be customary for
publicly issued subordinated debt securities at the time of issuance.
"Person" shall mean any individual, partnership, joint venture, firm,
------
corporation, limited liability company, association, trust or other enterprise
or any Governmental Authority.
"Plan" shall mean any multiemployer or single-employer plan, as
----
defined in Section 4001 of ERISA and subject to Title IV of ERISA, that is or
was within any of the preceding five plan years maintained or contributed to by
(or to which there is or was an obligation to contribute or to make payments of)
the Borrower, a Subsidiary or an ERISA Affiliate.
"Preferred Stock", as applied to the Capital Stock of any Person,
---------------
shall mean Capital Stock of any class or classes (however designated) which is
preferred as to the payment of dividends, or as to the distribution of assets
upon any voluntary or involuntary liquidation or dissolution of such Person,
over the Capital Stock of any other class of such Person.
"Prime Rate" shall mean the rate of interest per annum publicly
----------
announced from time to time by the Administrative Agent as its reference rate in
effect at its principal office in New York City (the Prime Rate not being
intended to be the lowest rate of interest charged by Chase in connection with
extensions of credit to debtors).
"Redeemable Stock" shall mean any Capital Stock that by its terms or
----------------
otherwise is required to be redeemed prior to the first anniversary of the
Revolving Credit Maturity Date or is redeemable at the option of the holder
thereof (upon the occurrence of any contingency or otherwise) at any time prior
to the first anniversary of the Revolving Credit Maturity Date.
"Reference Lender" shall mean Chase.
----------------
"Register" shall have the meaning provided in Section 13.6(c).
--------
"Regulation D" shall mean Regulation D of the Board as from time to
------------
time in effect and any successor to all or a portion thereof establishing
reserve requirements.
<PAGE>
22
"Regulation G" shall mean Regulation G of the Board as from time to
------------
time in effect and any successor to all or a portion thereof establishing margin
requirements.
"Regulation T" shall mean Regulation T of the Board as from time to
------------
time in effect and any successor to all or a portion thereof establishing margin
requirements.
"Regulation U" shall mean Regulation U of the Board as from time to
------------
time in effect and any successor to all or a portion thereof establishing margin
requirements.
"Regulation X" shall mean Regulation X of the Board as from time to
------------
time in effect and any successor to all or a portion thereof establishing margin
requirements.
"Reportable Event" shall mean an event described in Section 4043 of
----------------
ERISA and the regulations thereunder.
"Required Lenders" shall mean, at any date, (a) Non-Defaulting Lenders
----------------
having a majority of the Adjusted Total Revolving Credit Commitment at such date
or (b) if the Total Revolving Credit Commitment has been terminated or for the
purposes of acceleration pursuant to Section 11, the holders (excluding
Defaulting Lenders) of a majority of the outstanding principal amount of the
Loans and Letter of Credit Exposures (excluding the Loans and Letter of Credit
Exposures of Defaulting Lenders) in the aggregate at such date.
"Requirement of Law" shall mean, as to any Person, the Certificate of
------------------
Incorporation and By-Laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or assets or to which such
Person or any of its property or assets is subject.
"Revolving Credit Commitment" shall mean, (a) with respect to each
---------------------------
Lender that is a Lender on the date hereof, the amount set forth opposite such
Lender's name on Schedule 1.1 as such Lender's "Revolving Credit Commitment" and
(b) in the case of any Lender that becomes a Lender after the date hereof, the
amount specified as such Lender's "Revolving Credit Commitment" in the
Assignment and Acceptance pursuant to which such Lender assumed a portion of the
Total Revolving Credit Commitment, in each case as the same may be changed from
time to time pursuant to the terms hereof.
<PAGE>
23
"Revolving Credit Commitment Percentage" shall mean at any time, for
--------------------------------------
each Lender, the percentage obtained by dividing such Lender's Revolving Credit
Commitment by the Total Revolving Credit Commitment, provided that at any time
--------
when the Total Revolving Credit Commitment shall have been terminated, each
Lender's Revolving Credit Commitment Percentage shall be its Revolving Credit
Commitment Percentage as in effect immediately prior to such termination.
"Revolving Credit Loan" shall have the meaning provided in Section
---------------------
2.1.
"Revolving Credit Maturity Date" shall mean December 19, 2002.
------------------------------
"S&P" shall mean Standard & Poor's Ratings Service or any successor by
---
merger or consolidation to its business.
"SEC" shall mean the Securities and Exchange Commission or any
---
successor thereto.
"Section 9.1 Financials" shall mean the financial statements
----------------------
delivered, or required to be delivered, pursuant to Section 9.1(a) or (b)
together with the accompanying officer's certificate delivered, or required to
be delivered, pursuant to Section 9.1(c).
"Senior Debt Ratio" shall mean, as of any date of determination, the
-----------------
ratio of (a) Consolidated Senior Debt as of the last day of the most recent Test
Period ended on or prior to such date to (b) EBITDA for such Test Period.
"Stated Amount" of any Letter of Credit shall mean the maximum amount
-------------
from time to time available to be drawn thereunder, determined without regard to
whether any conditions to drawing could then be met.
"Subsidiary" of any Person shall mean and include (a) any corporation
----------
more than 50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person directly or
indirectly through Subsidiaries and (b) any partnership, association, joint
venture or other entity in which such Person directly or indirectly through
Subsidiaries has more than a 50% equity interest at the time. Unless otherwise
<PAGE>
24
expressly provided, all references herein to a "Subsidiary" shall mean a
Subsidiary of the Borrower.
"Subsidiary Guarantor" shall mean any Subsidiary of the Borrower that
--------------------
shall have executed and delivered to the Administrative Agent a guarantee
agreement, reasonably satisfactory in form and substance to the Administrative
Agent, pursuant to which such Subsidiary shall have unconditionally guaranteed
the payment by the Borrower as and when due of all principal, interest and other
amounts payable by the Borrower under this Agreement.
"Swingline Commitment" shall mean $10,000,000.
--------------------
"Swingline Loans" shall have the meaning provided in Section 2.1(b).
---------------
"Swingline Maturity Date" shall mean, with respect to any Swingline
-----------------------
Loan, the date that is five Business Days prior to the Revolving Credit Maturity
Date.
"Test Period" shall mean, for any determination under this Agreement,
-----------
the four consecutive fiscal quarters of the Borrower then last ended.
"Three-Month Secondary CD Rate" shall mean, for any day, the secondary
-----------------------------
market rate, expressed as a per annum rate, for three-month certificates of
deposit reported as being in effect on such day (or, if such day shall not be a
Business Day, the next preceding Business Day) by the Board through the public
information telephone line of the Federal Reserve Bank of New York (which rate
will, under the current practices of the Board, be published in Federal Reserve
Statistical Release H.15(519) during the week following such day), or, if such
rate shall not be so reported on such day or such next preceding Business Day,
the average of the secondary market quotations for three-month certificates of
deposit of major money center banks in New York City received at approximately
10:00 A.M., New York time, on such day (or, if such day shall not be a Business
Day, on the next preceding Business Day) by the Administrative Agent from three
New York City negotiable certificate of deposit dealers of recognized standing
selected by it.
"Total Revolving Credit Commitment" shall mean the sum of the
---------------------------------
Revolving Credit Commitments of all the Lenders.
"Transferee" shall have the meaning provided in Section 13.6(e).
----------
<PAGE>
25
"Type" shall mean, as to any Revolving Credit Loan, its nature as an
----
ABR Loan or a Eurodollar Loan.
"Unfunded Current Liability" of any Plan shall mean the amount, if
--------------------------
any, by which the present value of the accrued benefits under the Plan as of the
close of its most recent plan year, determined in accordance with Statement of
Financial Accounting Standards No. 87 as in effect on the date hereof, based
upon the actuarial assumptions that would be used by the Plan's actuary in a
termination of the Plan, exceeds the fair market value of the assets allocable
thereto.
"Unpaid Drawing" shall have the meaning provided in Section 3.4(a).
--------------
"Voting Stock" shall mean, with respect to any Person, shares of such
------------
Person's capital stock having the right to vote for the election of directors of
such Person under ordinary circumstances.
SECTION 2. Amount and Terms of Credit.
---------------------------
2.1 Commitments. (a) Subject to and upon the terms and conditions
------------
herein set forth, each Lender severally agrees to make a loan or loans (each a
"Revolving Credit Loan" and, collectively, the "Revolving Credit Loans") to the
- ---------------------- ----------------------
Borrower, which Revolving Credit Loans (i) shall be made at any time and from
time to time on and after the Closing Date and prior to the Revolving Credit
Maturity Date, (ii) may, at the option of the Borrower, be incurred and
maintained as, and/or converted into, ABR Loans or Eurodollar Loans, provided
--------
that all Revolving Credit Loans made by each of the Lenders pursuant to the same
Borrowing shall, unless otherwise specifically provided herein, consist entirely
of Revolving Credit Loans of the same Type, (iii) may be repaid and reborrowed
in accordance with the provisions hereof, (iv) shall not exceed for any such
Lender at any time outstanding that aggregate principal amount which, when added
to the product of (x) such Lender's Revolving Credit Commitment Percentage and
(y) the sum of (I) the aggregate Letter of Credit Outstandings at such time and
---
(II) the aggregate principal amount of all Swingline Loans then outstanding,
equals the Revolving Credit Commitment of such Lender at such time and (v) shall
not, after giving effect thereto and to the application of the proceeds thereof,
exceed for all Lenders at any time outstanding the aggregate principal amount
that, when added to the sum of (x) the Letter of Credit Outstandings at such
time and (y) the aggregate principal amount of all Swingline
<PAGE>
26
Loans then outstanding, equals the Total Revolving Credit Commitment then in
effect. On the Revolving Credit Maturity Date, all Revolving Credit Loans shall
be repaid in full.
(b) Subject to and upon the terms and conditions herein set forth,
Chase in its individual capacity agrees, at any time and from time to time on
and after the Closing Date and prior to the Swingline Maturity Date, to make a
loan or loans (each a "Swingline Loan" and, collectively, the "Swingline Loans")
-------------- ---------------
to the Borrower, which Swingline Loans (i) shall be ABR Loans, (ii) shall have
the benefit of the provisions of Section 2.1(c), (iii) shall not exceed at any
time outstanding the Swingline Commitment, (iv) shall not, after giving effect
thereto and to the application of the proceeds thereof, exceed in the aggregate
at any time outstanding the principal amount that, when added to the aggregate
principal amount of all Revolving Credit Loans then outstanding and all Letter
of Credit Outstandings at such time, equals the Total Revolving Credit
Commitment then in effect and (v) may be repaid and reborrowed in accordance
with the provisions hereof. Each Swingline Loan shall be repaid in full on the
earlier of the Swingline Maturity Date and the first date after such Swingline
Loan is made that is the 15th or last day of a calendar month and is at least
two Business Days after such Swingline Loan is made; provided that on each date
--------
that a Borrowing of Revolving Credit Loans is made, the Borrower shall repay all
Swingline Loans then outstanding. Chase shall not make any Swingline Loan after
receiving a written notice from the Borrower or any Lender stating that a
Default or Event of Default exists and is continuing until such time as Chase
shall have received written notice of (i) rescission of all such notices from
the party or parties originally delivering such notice or (ii) the waiver of
such Default or Event of Default in accordance with the provisions of Section
13.1.
(c) On any Business Day, Chase may, in its sole discretion, give
notice to the Lenders that all then-outstanding Swingline Loans shall be funded
with a Borrowing of Revolving Credit Loans, in which case a Borrowing of
Revolving Credit Loans constituting ABR Loans (each such Borrowing, a "Mandatory
---------
Borrowing") shall be made on the immediately succeeding Business Day by all
- ---------
Lenders pro rata based on each Lender's Revolving Credit Commitment Percentage,
--- ----
and the proceeds thereof shall be applied directly to Chase to repay Chase for
such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make
such Revolving Credit Loans upon one Business Day's notice pursuant to each
Mandatory Borrowing in the amount and in the manner specified in the preceding
sentence and on the date specified to it in writing by Chase notwithstanding
<PAGE>
27
(i) that the amount of the Mandatory Borrowing may not comply with the minimum
amount for each Borrowing specified in Section 2.2, (ii) whether any conditions
specified in Section 7 are then satisfied, (iii) whether a Default or an Event
of Default has occurred and is continuing, (iv) the date of such Mandatory
Borrowing or (v) any reduction in the Total Revolving Credit Commitment after
any such Swingline Loans were made. In the event that, in the sole judgment of
Chase, any Mandatory Borrowing cannot for any reason be made on the date
otherwise required above (including, without limitation, as a result of the
commencement of a proceeding under the Bankruptcy Code in respect of the
Borrower), each Lender hereby agrees that it shall forthwith purchase from Chase
(without recourse or warranty) such participation of the outstanding Swingline
Loans as shall be necessary to cause the Lenders to share in such Swingline
Loans ratably based upon their respective Revolving Credit Commitment
Percentages, provided that all principal and interest payable on such Swingline
--------
Loans shall be for the account of Chase until the date the respective
participation is purchased and, to the extent attributable to the purchased
participation, shall be payable to the Lender purchasing same from and after
such date of purchase.
2.2 Minimum Amount of Each Borrowing; Maximum Number of Borrowings.
---------------------------------------------------------------
The aggregate principal amount of each Borrowing of Revolving Credit Loans shall
be in a multiple of $1,000,000 and Swingline Loans shall be in a multiple of
$100,000, and no Borrowing of Loans shall be less than the Minimum Borrowing
Amount with respect thereto (except that Mandatory Borrowings shall be made in
the amounts required by Section 2.1(c)). More than one Borrowing may be
incurred on any date, provided that at no time shall there be outstanding more
--------
than 8 Borrowings of Eurodollar Loans under this Agreement.
2.3 Notice of Borrowing. (a) Whenever the Borrower desires to incur
--------------------
Revolving Credit Loans hereunder (other than Mandatory Borrowings or borrowings
to repay Unpaid Drawings), it shall give the Administrative Agent at the
Administrative Agent's Office (i) prior to 12:00 Noon (New York time) at least
three Business Days' prior written notice (or telephonic notice promptly
confirmed in writing) of each Borrowing of Eurodollar Loans and (ii) prior to
12:00 Noon (New York time) at least one Business Day's prior written notice (or
telephonic notice promptly confirmed in writing) of each Borrowing of ABR Loans.
Each such notice (a "Notice of Borrowing"), except as otherwise expressly
-------------------
provided in Section 2.10, shall be irrevocable and shall specify (i) the
aggregate principal amount of the Revolving Credit Loans to be made pursuant to
such Borrowing, (ii) the
<PAGE>
28
date of Borrowing (which shall be a Business Day) and (iii) whether the
respective Borrowing shall consist of ABR Loans or Eurodollar Loans and, if
Eurodollar Loans, the Interest Period to be initially applicable thereto. The
Administrative Agent shall promptly give each Lender written notice (or
telephonic notice promptly confirmed in writing) of each proposed Borrowing of
Revolving Credit Loans, of such Lender's proportionate share thereof and of the
other matters covered by the related Notice of Borrowing.
(b) Whenever the Borrower desires to incur Swingline Loans hereunder,
it shall give the Administrative Agent written notice (or telephonic notice
promptly confirmed in writing) of each Borrowing of Swingline Loans prior to
1:00 P.M. (New York time) on the date of such Borrowing. Each such notice shall
be irrevocable and shall specify (i) the aggregate principal amount of the
Swingline Loans to be made pursuant to such Borrowing and (ii) the date of
Borrowing (which shall be a Business Day). The Administrative Agent shall
promptly give Chase written notice (or telephonic notice promptly confirmed in
writing) of each proposed Borrowing of Swingline Loans and of the other matters
covered by the related Notice of Borrowing.
(c) Mandatory Borrowings shall be made upon the notice specified in
Section 2.1(c), with the Borrower irrevocably agreeing, by its incurrence of any
Swingline Loan, to the making of Mandatory Borrowings as set forth in such
Section.
(d) Borrowings to reimburse Unpaid Drawings shall be made upon the
notice specified in Section 3.4(c).
(e) Without in any way limiting the obligation of the Borrower to
confirm in writing any notice it may give hereunder by telephone, the
Administrative Agent may act prior to receipt of written confirmation without
liability upon the basis of such telephonic notice believed by the
Administrative Agent in good faith to be from an Authorized Officer of the
Borrower. In each such case the Borrower hereby waives the right to dispute the
Administrative Agent's record of the terms of any such telephonic notice.
2.4 Disbursement of Funds. (a) No later than 12:00 Noon (New York
----------------------
time) on the date specified in each Notice of Borrowing (including Mandatory
Borrowings), each Lender will make available its pro rata portion, if any, of
--- ----
each Borrowing requested to be made on such date in the manner provided below,
provided that all Swingline Loans shall be made available in the full amount
- --------
thereof by Chase
<PAGE>
29
no later than 2:00 P.M. (New York time) on the date requested.
(b) Each Lender shall make available all amounts it is to fund under
any Borrowing in Dollars and immediately available funds to the Administrative
Agent at the Administrative Agent's Office and the Administrative Agent will
(except in the case of Mandatory Borrowings and Borrowings to repay Unpaid
Drawings) make available to the Borrower by depositing to the Borrower's account
at the Administrative Agent's Office the aggregate of the amounts so made
available in Dollars and the type of funds received. Unless the Administrative
Agent shall have been notified by any Lender prior to the date of any such
Borrowing that such Lender does not intend to make available to the
Administrative Agent its portion of the Borrowing or Borrowings to be made on
such date, the Administrative Agent may assume that such Lender has made such
amount available to the Administrative Agent on such date of Borrowing, and the
Administrative Agent, in reliance upon such assumption, may (in its sole
discretion and without any obligation to do so) make available to the Borrower a
corresponding amount. If such corresponding amount is not in fact made available
to the Administrative Agent by such Lender and the Administrative Agent has made
available same to the Borrower, the Administrative Agent shall be entitled to
recover such corresponding amount from such Lender. If such Lender does not pay
such corresponding amount forthwith upon the Administrative Agent's demand
therefor, the Administrative Agent shall promptly notify the Borrower, and the
Borrower shall immediately pay such corresponding amount to the Administrative
Agent. The Administrative Agent shall also be entitled to recover from such
Lender or the Borrower, as the case may be, interest on such corresponding
amount in respect of each day from the date such corresponding amount was made
available by the Administrative Agent to the Borrower to the date such
corresponding amount is recovered by the Administrative Agent, at a rate per
annum equal to (i) if paid by such Lender, the Federal Funds Effective Rate or
(ii) if paid by the Borrower, the then-applicable rate of interest, calculated
in accordance with Section 2.8, for the respective Loans.
(c) Nothing in this Section 2.4 shall be deemed to relieve any Lender
from its obligation to fulfill its commitments hereunder or to prejudice any
rights that the Borrower may have against any Lender as a result of any default
by such Lender hereunder (it being understood, however, that no Lender shall be
responsible for the failure of any other Lender to fulfill its commitments
hereunder).
<PAGE>
30
2.5 Repayment of Loans; Evidence of Debt. (a) The Borrower shall
-------------------------------------
repay to the Administrative Agent, for the benefit of the Lenders, on the
Revolving Credit Maturity Date, the then-unpaid Revolving Credit Loans. The
Borrower shall repay to the Administrative Agent, for the account of Chase, on
the Swingline Maturity Date, the then-unpaid Swingline Loans. The Borrower also
shall repay Swingline Loans as required by Section 2.1(b).
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the Borrower to the
appropriate lending office of such Lender resulting from each Loan made by such
lending office of such Lender from time to time, including the amounts of
principal and interest payable and paid to such lending office of such Lender
from time to time under this Agreement.
(c) The Administrative Agent shall maintain the Register pursuant to
Section 13.6, and a subaccount for each Lender, in which Register and
subaccounts (taken together) shall be recorded (i) the amount of each Loan made
hereunder, whether such Loan is a Revolving Credit Loan or a Swingline Loan, the
Type of each Loan made and the Interest Period applicable thereto, (ii) the
amount of any principal or interest due and payable or to become due and payable
from the Borrower to each Lender or Chase hereunder and (iii) the amount of any
sum received by the Administrative Agent hereunder from the Borrower and each
Lender's share thereof.
(d) The entries made in the Register and accounts and subaccounts
maintained pursuant to paragraphs (b) and (c) of this Section 2.5 shall, to the
extent permitted by applicable law, be prima facie evidence of the existence and
amounts of the obligations of the Borrower therein recorded; provided, however,
-------- -------
that the failure of any Lender or the Administrative Agent to maintain such
account, such Register or such subaccount, as applicable, or any error therein,
shall not in any manner affect the obligation of the Borrower to repay (with
applicable interest) the Loans made to the Borrower by such Lender in accordance
with the terms of this Agreement.
2.6 Conversions and Continuations. (a) The Borrower shall have the
------------------------------
option on any Business Day to convert all or a portion equal to at least the
Minimum Borrowing Amount of the outstanding principal amount of Revolving Credit
Loans of one Type into a Borrowing or Borrowings of another Type or to continue
the outstanding principal amount of any Eurodollar Loans as Eurodollar
<PAGE>
31
Loans for an additional Interest Period, provided that (i) no partial conversion
--------
of Eurodollar Loans shall reduce the outstanding principal amount of Eurodollar
Loans made pursuant to a single Borrowing to less than the Minimum Borrowing
Amount, (ii) ABR Loans may not be converted into Eurodollar Loans if a Default
or Event of Default is in existence on the date of the conversion and the
Administrative Agent has or the Required Lenders have determined in its or their
sole discretion not to permit such conversion, (iii) Eurodollar Loans may not be
continued as Eurodollar Loans for an additional Interest Period if a Default or
Event of Default is in existence on the date of the proposed continuation and
the Administrative Agent has or the Required Lenders have determined in its or
their sole discretion not to permit such continuation and (iv) Borrowings
resulting from conversions pursuant to this Section 2.6 shall be limited in
number as provided in Section 2.2. Each such conversion or continuation shall be
effected by the Borrower by giving the Administrative Agent at the
Administrative Agent's Office prior to 12:00 Noon (New York time) at least three
Business Days' (or one Business Day's notice in the case of a conversion into
ABR Loans) prior written notice (or telephonic notice promptly confirmed in
writing) (each a "Notice of Conversion or Continuation") specifying the
------------------------------------
Revolving Credit Loans to be so converted or continued, the Type of Revolving
Credit Loans to be converted or continued into and, if such Revolving Credit
Loans are to be converted into or continued as Eurodollar Loans, the Interest
Period to be initially applicable thereto. The Administrative Agent shall give
each Lender notice as promptly as practicable of any such proposed conversion or
continuation.
(b) If any Default or Event of Default is in existence at the time of
any proposed continuation of any Eurodollar Loans and the Administrative Agent
has or the Required Lenders have determined in its or their sole discretion not
to permit such continuation, such Eurodollar Loans shall be automatically
converted on the last day of the current Interest Period into ABR Loans. If
upon the expiration of any Interest Period in respect of Eurodollar Loans, the
Borrower has failed to elect a new Interest Period to be applicable thereto as
provided in paragraph (a) above, the Borrower shall be deemed to have elected to
convert such Borrowing of Eurodollar Loans into a Borrowing of ABR Loans
effective as of the expiration date of such current Interest Period.
2.7 Pro Rata Borrowings. Each Borrowing of Revolving Credit Loans
--------------------
under this Agreement shall be granted by the Lenders pro rata on the basis of
--- ----
their then-
<PAGE>
32
applicable Revolving Credit Commitments. It is understood that no Lender shall
be responsible for any default by any other Lender in its obligation to make
Loans hereunder and that each Lender shall be obligated to make the Loans
provided to be made by it hereunder, regardless of the failure of any other
Lender to fulfill its commitments hereunder.
2.8 Interest. (a) The unpaid principal amount of each ABR Loan
---------
shall bear interest from the date of the Borrowing thereof until maturity
(whether by acceleration or otherwise) at a rate per annum that shall at all
times be the ABR in effect from time to time.
(b) The unpaid principal amount of each Eurodollar Loan shall bear
interest from the date of the Borrowing thereof until maturity thereof (whether
by acceleration or otherwise) at a rate per annum that shall at all times be the
Applicable Margin in effect from time to time plus the relevant Eurodollar Rate.
(c) If all or a portion of (i) the principal amount of any Loan or
(ii) any interest payable thereon shall not be paid when due (whether at the
stated maturity, by acceleration or otherwise), such overdue amount shall bear
interest at a rate per annum that is (x) in the case of overdue principal, the
rate that would otherwise be applicable thereto plus 2% or (y) in the case of
----
any overdue interest, to the extent permitted by applicable law, ABR plus 2%
----
from and including the date of such non-payment to but excluding the date on
which such amount is paid in full (after as well as before judgment).
(d) Interest on each Loan shall accrue from and including the date of
any Borrowing to but excluding the date of any repayment thereof and shall be
payable (i) in respect of each ABR Loan, quarterly in arrears on the last day of
each March, June, September and December, (ii) in respect of each Eurodollar
Loan, on the last day of each Interest Period applicable thereto and, in the
case of an Interest Period in excess of three months, on each date occurring at
three-month intervals after the first day of such Interest Period, and (iii) in
respect of each Loan (except, in the case of prepayments, any ABR Loan), on any
prepayment (on the amount prepaid), at maturity (whether by acceleration or
otherwise) and, after such maturity, on demand.
(e) All computations of interest hereunder shall be made in
accordance with Section 5.5.
<PAGE>
33
(f) The Administrative Agent, upon determining the interest rate for
any Borrowing of Eurodollar Loans, shall promptly notify the Borrower and the
Lenders thereof. Each such determination shall, absent clearly demonstrable
error, be final and conclusive and binding on all parties hereto.
2.9 Interest Periods. At the time the Borrower gives a Notice of
-----------------
Borrowing or Notice of Conversion or Continuation in respect of the making of,
or conversion into or continuation as, a Borrowing of Eurodollar Loans (in the
case of the initial Interest Period applicable thereto) or prior to 10:00 A.M.
(New York time) on the third Business Day prior to the expiration of an Interest
Period applicable to a Borrowing of Eurodollar Loans, the Borrower shall have
the right to elect by giving the Administrative Agent written notice (or
telephonic notice promptly confirmed in writing) the Interest Period applicable
to such Borrowing, which Interest Period shall, at the option of the Borrower,
be a one, two, three, six or (if available to all the Lenders making such Loans
as determined by such Lenders in good faith based on prevailing market
conditions) a nine or twelve month period. Notwithstanding anything to the
contrary contained above:
(a) the initial Interest Period for any Borrowing of Eurodollar
Loans shall commence on the date of such Borrowing (including the date of
any conversion from a Borrowing of ABR Loans) and each Interest Period
occurring thereafter in respect of such Borrowing shall commence on the day
on which the next preceding Interest Period expires;
(b) if any Interest Period relating to a Borrowing of Eurodollar
Loans begins on the last Business Day of a calendar month or begins on a
day for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period, such Interest Period shall end on
the last Business Day of the calendar month at the end of such Interest
Period;
(c) if any Interest Period would otherwise expire on a day that
is not a Business Day, such Interest Period shall expire on the next
succeeding Business Day, provided that if any Interest Period in respect of
--------
a Eurodollar Loan would otherwise expire on a day that is not a Business
Day but is a day of the month after which no further Business Day occurs in
such month, such Interest Period shall expire on the next preceding
Business Day; and
<PAGE>
34
(d) the Borrower shall not be entitled to elect any Interest
Period in respect of any Eurodollar Loan if such Interest Period would
extend beyond the Revolving Credit Maturity Date.
2.10 Increased Costs, Illegality, etc. (a) In the event that (x) in
---------------------------------
the case of clause (i) below, the Administrative Agent or (y) in the case of
clauses (ii) and (iii) below, any Lender shall have reasonably determined (which
determination shall, absent clearly demonstrable error, be final and conclusive
and binding upon all parties hereto):
(i) on any date for determining the Eurodollar Rate for any Interest
Period that, by reason of any changes arising on or after the Closing Date
affecting the interbank Eurodollar market, adequate and fair means do not
exist for ascertaining the applicable interest rate on the basis provided
for in the definition of Eurodollar Rate; or
(ii at any time, that such Lender shall incur in creased costs or
reductions in the amounts received or receivable hereunder with respect to
any Eurodollar Loans (other than any such increase or reduction
attributable to taxes) because of (x) any change since the date hereof in
any applicable law, governmental rule, regulation, guideline or order (or
in the interpretation or administration thereof and including the
introduction of any new law or governmental rule, regulation, guideline or
order), such as, for example, but not limited to, a change in official
reserve requirements, and/or (y) other circumstances affecting the
interbank Eurodollar market or the position of such Lender in such market;
or
(ii at any time, that the making or continuance of any Eurodollar Loan
has become unlawful by compliance by such Lender in good faith with any
law, governmental rule, regulation, guideline or order (or would conflict
with any such governmental rule, regulation, guideline or order not having
the force of law even though the failure to comply therewith would not be
unlawful), or has become impracticable as a result of a contingency
occurring after the date hereof that materially and adversely affects the
interbank Eurodollar market;
then, and in any such event, such Lender (or the Administrative Agent, in the
case of clause (i) above) shall within a reasonable time thereafter give notice
(if by
<PAGE>
35
telephone confirmed in writing) to the Borrower and to the Administrative
Agent of such determination (which notice the Administrative Agent shall
promptly transmit to each of the other Lenders). Thereafter (x) in the case of
clause (i) above, Eurodollar Loans shall no longer be available until such time
as the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice by the Administrative Agent no longer
exist (which notice the Administrative Agent agrees to give at such time when
such circumstances no longer exist), and any Notice of Borrowing or Notice of
Conversion given by the Borrower with respect to Eurodollar Loans that have not
yet been incurred shall be deemed rescinded by the Borrower, (y) in the case of
clause (ii) above, the Borrower shall pay to such Lender, promptly after receipt
of written demand therefor, such additional amounts (in the form of an increased
rate of, or a different method of calculating, interest or otherwise as such
Lender in its reasonable discretion shall determine) as shall be required to
compensate such Lender for such increased costs or reductions in amounts
receivable hereunder (it being agreed that a written notice as to the additional
amounts owed to such Lender, showing in reasonable detail the basis for the
calculation thereof, submitted to the Borrower by such Lender shall, absent
clearly demonstrable error, be final and conclusive and binding upon all parties
hereto) and (z) in the case of clause (iii) above, the Borrower shall take one
of the actions specified in Section 2.10(b) as promptly as possible and, in any
event, within the time period required by law.
(b) At any time that any Eurodollar Loan is affected by the
circumstances described in Section 2.10(a)(ii) or (iii), the Borrower may (and
in the case of a Eurodollar Loan affected pursuant to Section 2.10(a)(iii)
shall) either (i) if the affected Eurodollar Loan is then being made pursuant to
a Borrowing, cancel said Borrowing by giving the Administrative Agent telephonic
notice (confirmed promptly in writing) thereof on the same date that the
Borrower was notified by a Lender pursuant to Section 2.10(a)(ii) or (iii) or
(ii) if the affected Eurodollar Loan is then outstanding, upon at least three
Business Days' notice to the Administrative Agent, require the affected Lender
to convert each such Eurodollar Loan into an ABR Loan, provided that if more
--------
than one Lender is affected at any time, then all affected Lenders must be
treated in the same manner pursuant to this Section 2.10(b).
(c) If, after the date hereof, the adoption of any applicable law,
rule or regulation regarding capital adequacy, or any change therein, or any
change in the interpretation or administration thereof by any governmental
<PAGE>
36
authority, the National Association of Insurance Commissioners, central bank or
comparable agency charged with the interpretation or administration thereof, or
compliance by a Lender or its parent with any request or directive made or
adopted after the date hereof regarding capital adequacy (whether or not having
the force of law) of any such authority, association, central bank or comparable
agency, has or would have the effect of reducing the rate of return on such
Lender's or its parent's capital or assets as a consequence of such Lender's
commitments or obligations hereunder to a level below that which such Lender or
its parent could have achieved but for such adoption, effectiveness, change or
compliance (taking into consideration such Lender's or its parent's policies
with respect to capital adequacy), then from time to time, promptly after demand
by such Lender (with a copy to the Administrative Agent), the Borrower shall pay
to such Lender such additional amount or amounts as will compensate such Lender
or its parent for such reduction, it being understood and agreed, however, that
a Lender shall not be entitled to such compensation as a result of such Lender's
compliance with, or pursuant to any request or directive to comply with, any
such law, rule or regulation as in effect on the date hereof. Each Lender, upon
determining in good faith that any additional amounts will be payable pursuant
to this Section 2.10(c), will give prompt written notice thereof to the
Borrower, which notice shall set forth in reasonable detail the basis of the
calculation of such additional amounts, although the failure to give any such
notice shall not, subject to Section 2.13, release or diminish any of the
Borrower's obligations to pay additional amounts pursuant to this Section
2.10(c) upon receipt of such notice.
2.11 Compensation. If (a) any payment of principal of any Eurodollar
-------------
Loan is made by the Borrower to or for the account of a Lender other than on the
last day of the Interest Period for such Eurodollar Loan as a result of a
payment or conversion pursuant to Section 2.5, 2.6, 2.10, 5.1, 5.2 or 13.7, as a
result of acceleration of the maturity of the Loans pursuant to Section 11 or
for any other reason, (b) any Borrowing of Eurodollar Loans is not made as a
result of a withdrawn Notice of Borrowing, (c) any ABR Loan is not converted
into a Eurodollar Loan as a result of a withdrawn Notice of Conversion or
Continuation, (d) any Eurodollar Loan is not continued as a Eurodollar Loan as a
result of a withdrawn Notice of Conversion or Continuation or (e) any prepayment
of principal of any Eurodollar Loan is not made as a result of a withdrawn
notice of prepayment pursuant to Section 5.1 or 5.2, the Borrower shall, after
receipt of a written request by such Lender (which request shall set forth in
reasonable detail the basis for
<PAGE>
37
requesting such amount), pay to the Administrative Agent for the account of such
Lender any amounts required to compensate such Lender for any additional losses,
costs or expenses that such Lender may reasonably incur as a result of such
payment, failure to convert, failure to continue or failure to prepay,
including, without limitation, any loss, cost or expense (excluding loss of
anticipated profits) actually incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by any Lender to fund or
maintain such Eurodollar Loan.
2.12 Change of Lending Office. Each Lender agrees that, upon the
-------------------------
occurrence of any event giving rise to the operation of Section 2.10(a)(ii),
2.10(a)(iii), 2.10(b), 3.5 or 5.4 with respect to such Lender, it will, if
requested by the Borrower, use reasonable efforts (subject to overall policy
considerations of such Lender) to designate another lending office for any Loans
affected by such event, provided that such designation is made on such terms
--------
that such Lender and its lending office suffer no economic, legal or regulatory
disadvantage, with the object of avoiding the consequence of the event giving
rise to the operation of any such Section. Nothing in this Section 2.12 shall
affect or postpone any of the obligations of the Borrower or the right of any
Lender provided in Section 2.10, 3.5 or 5.4.
2.13 Notice of Certain Costs. Notwithstanding anything in this
------------------------
Agreement to the contrary, to the extent any notice required by Section 2.10,
2.11, 3.5 or 5.4 is given by any Lender more than 180 days after such Lender has
knowledge (or should have had knowledge) of the occurrence of the event giving
rise to the additional cost, reduction in amounts, loss, tax or other additional
amounts described in such Sections, such Lender shall not be entitled to
compensation under Section 2.10, 2.11, 3.5 or 5.4, as the case may be, for any
such amounts incurred or accruing prior to the giving of such notice to the
Borrower.
SECTION 3. Letters of Credit.
------------------
3.1 Letters of Credit. (a) Subject to and upon the terms and
------------------
conditions herein set forth, the Borrower, at any time and from time to time on
or after the Closing Date and prior to the L/C Maturity Date, may request that
the Letter of Credit Issuer issue, for the account of the Borrower, a standby
letter of credit or letters of credit in such form as may be approved by the
Letter of Credit Issuer in its reasonable discretion.
<PAGE>
38
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be
issued the Stated Amount of which, when added to the Letter of Credit
Outstandings at such time, would exceed the Letter of Credit Commitment then in
effect; (ii) no Letter of Credit shall be issued the Stated Amount of which,
when added to the sum of (x) the Letter of Credit Outstandings at such time and
(y) the aggregate principal of all Revolving Credit Loans and Swingline Loans
then outstanding, would exceed the Total Revolving Credit Commitment then in
effect; (iii) each Letter of Credit shall have an expiry date occurring no later
than one year after the date of issuance thereof, unless otherwise agreed upon
by the Administrative Agent and the Letter of Credit Issuer, provided that in no
--------
event shall such expiry date occur later than the L/C Maturity Date; (iv) each
Letter of Credit shall be denominated in Dollars; and (v) no Letter of Credit
shall be issued by the Letter of Credit Issuer after it has received a written
notice from the Borrower or any Lender stating that a Default or Event of
Default has occurred and is continuing until such time as the Letter of Credit
Issuer shall have received a written notice of (x) rescission of such notice
from the party or parties originally delivering such notice or (y) the waiver of
such Default or Event of Default in accordance with the provisions of Section
13.1.
(c) Upon at least one Business Day's prior written notice (or
telephonic notice promptly confirmed in writing) to the Administrative Agent and
the Letter of Credit Issuer (which notice the Administrative Agent shall
promptly transmit to each of the Lenders), the Borrower shall have the right, on
any day, permanently to terminate or reduce the Letter of Credit Commitment in
whole or in part, provided that, after giving effect to such termination or
--------
reduction, the Letter of Credit Outstandings shall not exceed the Letter of
Credit Commitment.
3.2 Letter of Credit Requests. (a) Whenever the Borrower desires
--------------------------
that a Letter of Credit be issued for its account, it shall give the
Administrative Agent and the Letter of Credit Issuer at least five (or such
lesser number as may be agreed upon by the Administrative Agent and the Letter
of Credit Issuer) Business Days' written notice thereof. Each notice shall be
executed by the Borrower and shall be in the form of Exhibit B (each a "Letter
------
of Credit Request"). The Administrative Agent shall promptly transmit copies of
- -----------------
each Letter of Credit Request to each Lender.
(b) The making of each Letter of Credit Request shall be deemed to be
a representation and warranty by the Borrower that the Letter of Credit may be
issued in
<PAGE>
39
accordance with, and will not violate the requirements of, Section 3.1(b).
3.3 Letter of Credit Participations. (a) Im mediately upon the
--------------------------------
issuance by the Letter of Credit Issuer of any Letter of Credit, the Letter of
Credit Issuer shall be deemed to have sold and transferred to each other Lender
(each such other Lender, in its capacity under this Section 3.3, an "L/C
---
Participant"), and each such L/C Participant shall be deemed irrevocably and
- -----------
unconditionally to have purchased and received from the Letter of Credit Issuer,
without recourse or warranty, an undivided interest and participation (each an
"L/C Participation"), to the extent of such L/C Participant's Revolving Credit
- ------------------
Commitment Percentage, in such Letter of Credit, each substitute letter of
credit, each drawing made thereunder and the obligations of the Borrower under
this Agreement with respect thereto, and any security therefor or guaranty
pertaining thereto (although Letter of Credit Fees will be paid directly to the
Administrative Agent for the ratable account of the L/C Participants as provided
in Section 4.1(b) and the L/C Participants shall have no right to receive any
portion of any Fronting Fees).
(b) In determining whether to pay under any Letter of Credit, the
Letter of Credit Issuer shall have no obligation relative to the L/C
Participants other than to confirm that any documents required to be delivered
under such Letter of Credit have been delivered and that they appear to comply
on their face with the requirements of such Letter of Credit. Any action taken
or omitted to be taken by the Letter of Credit Issuer under or in connection
with any Letter of Credit issued by it, if taken or omitted in the absence of
gross negligence or willful misconduct, shall not create for the Letter of
Credit Issuer any resulting liability.
(c) In the event that the Letter of Credit Issuer makes any payment
under any Letter of Credit issued by it and the Borrower shall not have repaid
such amount in full to the Letter of Credit Issuer pursuant to Section 3.4(a),
the Letter of Credit Issuer shall promptly notify the Administrative Agent and
each L/C Participant of such failure, and each L/C Participant shall promptly
and unconditionally pay to the Administrative Agent, for the account of the
Letter of Credit Issuer, the amount of such L/C Participant's Revolving Credit
Commitment Percentage of such unreimbursed payment in Dollars and in same day
funds; provided, however, that no L/C Participant shall be obligated to pay to
-------- -------
the Administrative Agent for the account of the Letter of Credit Issuer its
Revolving Credit Commitment Percentage of such unreimbursed amount arising from
any wrongful payment made by the Letter of Credit Issuer under a Letter of
Credit as a result of acts or omissions constituting willful misconduct or gross
negligence on the part of the Letter of Credit Issuer. If the Letter of Credit
Issuer so notifies, prior to 11:00 A.M. (New York time) on any Business Day, any
L/C Participant required to fund a payment under a Letter of Credit, such L/C
Participant shall make available to the Administrative Agent for the account of
the Letter of Credit Issuer such L/C Participant's Revolving Credit
<PAGE>
40
Commitment Percentage of the amount of such payment on such Business Day in same
day funds. If and to the extent such L/C Participant shall not have so made its
Revolving Credit Commitment Percentage of the amount of such payment available
to the Administrative Agent for the account of the Letter of Credit Issuer, such
L/C Participant agrees to pay to the Administrative Agent for the account of the
Letter of Credit Issuer, forthwith on demand, such amount, together with
interest thereon for each day from such date until the date such amount is paid
to the Administrative Agent for the account of the Letter of Credit Issuer at
the Federal Funds Effective Rate. The failure of any L/C Participant to make
available to the Administrative Agent for the account of the Letter of Credit
Issuer its Revolving Credit Commitment Percentage of any payment under any
Letter of Credit shall not relieve any other L/C Participant of its obligation
hereunder to make available to the Administrative Agent for the account of the
Letter of Credit Issuer its Revolving Credit Commitment Percentage of any
payment under such Letter of Credit on the date required, as specified above,
but no L/C Participant shall be responsible for the failure of any other L/C
Participant to make available to the Administrative Agent such other L/C
Participant's Revolving Credit Commitment Percentage of any such payment.
(d) Whenever the Letter of Credit Issuer receives a payment in
respect of an unpaid reimbursement obligation as to which the Administrative
Agent has received for the account of the Letter of Credit Issuer any payments
from the L/C Participants pursuant to paragraph (c) above, the Letter of Credit
Issuer shall pay to the Administrative Agent and the Administrative Agent shall
promptly pay to each L/C Participant that has paid its Revolving Credit
Commitment Percentage of such reimbursement obligation, in Dollars and in same
day funds, an amount equal to such L/C Participant's share (based upon the
proportionate aggregate amount originally funded by such L/C Participant to the
aggregate amount funded by all L/C Participants) of the principal amount of such
reimbursement obligation and interest thereon
<PAGE>
41
accruing after the purchase of the respective L/C Participations.
(e) The obligations of the L/C Participants to make payments to the
Administrative Agent for the account of the Letter of Credit Issuer with respect
to Letters of Credit shall be irrevocable and not subject to counterclaim, set-
off or other defense or any other qualification or exception whatsoever and
shall be made in accordance with the terms and conditions of this Agreement
under all circumstances, including, without limitation, any of the following
circumstances:
(i) any lack of validity or enforceability of this Agreement or
any of the other Credit Documents;
(ii) the existence of any claim, set-off, defense or other right
that the Borrower may have at any time against a beneficiary named in a
Letter of Credit, any transferee of any Letter of Credit (or any Person for
whom any such transferee may be acting), the Administrative Agent, the
Letter of Credit Issuer, any Lender or other Person, whether in connection
with this Agreement, any Letter of Credit, the transactions contemplated
herein or any unrelated transactions (including any underlying transaction
between the Borrower and the beneficiary named in any such Letter of
Credit);
(iii) any draft, certificate or any other document presented
under any Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Credit
Documents; or
(v) the occurrence of any Default or Event of Default;
provided, however, that no L/C Participant shall be obligated to pay to the
- -------- -------
Administrative Agent for the account of the Letter of Credit Issuer its
Revolving Credit Commitment Percentage of any unreimbursed amount arising from
any wrongful payment made by the Letter of Credit Issuer under a Letter of
Credit as a result of acts or omissions constituting willful misconduct or gross
negligence on the part of the Letter of Credit Issuer.
<PAGE>
42
3.4 Agreement to Repay Letter of Credit Drawings. (a) The Borrower
---------------------------------------------
hereby agrees to reimburse the Letter of Credit Issuer, by making payment to the
Administrative Agent in Dollars in immediately available funds at the
Administrative Agent's Office, for any payment or disbursement made by the
Letter of Credit Issuer under any Letter of Credit (each such amount so paid
until reimbursed, an "Unpaid Drawing") immediately after, and in any event on
--------------
the date of, such payment, with interest on the amount so paid or disbursed by
the Letter of Credit Issuer, to the extent not reimbursed prior to 5:00 P.M.
(New York time) on the date of such payment or disbursement, from and including
the date paid or disbursed to but excluding the date the Letter of Credit Issuer
is reimbursed therefor, at a rate per annum that shall at all times be the ABR
as in effect from time to time, provided that, notwithstanding anything
--------
contained in this Agreement to the contrary, (i) unless the Borrower shall have
notified the Administrative Agent and the Letter of Credit Issuer prior to 10:00
A.M. on the date of such drawing that the Borrower intends to reimburse the
Letter of Credit Issuer for the amount of such drawing with funds other than the
proceeds of Loans, the Borrower shall be deemed to have given a Notice of
Borrowing to the Administrative Agent requesting that the Lenders make Revolving
Credit Loans (which shall initially be ABR Loans) on the date on which such
drawing is honored in an amount equal to the amount of such drawing and (ii)
each Lender shall, on such date, make Revolving Credit Loans in an amount equal
to such Lender's pro rata portion of such Borrowing in accordance with the
provisions of Section 2.4.
(b) The Borrower's obligations under this Section 3.4 to reimburse
the Letter of Credit Issuer with respect to Unpaid Drawings (including, in each
case, interest thereon) shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim or defense to payment
that the Borrower or any other Person may have or have had against the Letter of
Credit Issuer, the Administrative Agent or any Lender (including in its capacity
as an L/C Participant), including, without limitation, any defense based upon
the failure of any drawing under a Letter of Credit (each a "Drawing") to
-------
conform to the terms of the Letter of Credit or any non-application or
misapplication by the beneficiary of the proceeds of such Drawing, provided that
--------
the Borrower shall not be obligated to reimburse the Letter of Credit Issuer for
any wrongful payment made by the Letter of Credit Issuer under the Letter of
Credit issued by it as a result of acts or omissions constituting willful
misconduct or gross negligence on the part of the Letter of Credit Issuer.
<PAGE>
43
(c) Each payment by the Letter of Credit Issuer under any Letter of
Credit shall constitute a request by the Borrower for an ABR Revolving Credit
Loan in the amount of the Unpaid Drawing in respect of such Letter of Credit.
The Letter of Credit Issuer shall notify the Borrower and the Administrative
Agent, by 10:00 A.M. (New York time) on any Business Day on which the Letter of
Credit Issuer intends to honor a drawing under a Letter of Credit, of (i) the
Letter of Credit Issuer's intention to honor such drawing and (ii) the amount
of such drawing. Unless otherwise instructed by the Borrower by 10:30 A.M. (New
York time) on such Business Day, the Administrative Agent shall promptly notify
each Lender of such drawing and the amount of its Revolving Credit Loan to be
made in respect thereof, and each Lender shall be irrevocably obligated to make
an ABR Revolving Credit Loan to the Borrower in the amount of its Revolving
Credit Commitment Percentage of the applicable Unpaid Drawing by 12:00 noon (New
York time) on such Business Day by making the amount of such Revolving Credit
Loan available to the Administrative Agent at the Administrative Agent's Office.
Such Revolving Credit Loans shall be made without regard to the Minimum
Borrowing Amount. The Administrative Agent shall use the proceeds of such
Revolving Credit Loans solely for purpose of reimbursing the Letter of Credit
Issuer for the related Unpaid Drawing.
3.5 Increased Costs. If after the date hereof, the adoption of any
----------------
applicable law, rule or regulation, or any change therein, or any change in the
interpretation or administration thereof by any Governmental Authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or actual com pliance by the Letter of Credit Issuer or any L/C
Participant with any request or directive made or adopted after the date hereof
(whether or not having the force of law), by any such authority, central bank or
comparable agency shall either (a) impose, modify or make applicable any
reserve, deposit, capital adequacy or similar requirement against letters of
credit issued by the Letter of Credit Issuer, or any L/C Participant's L/C
Participation therein, or (b) impose on the Letter of Credit Issuer or any L/C
Participant any other conditions affecting its obligations under this Agreement
in respect of Letters of Credit or L/C Participations therein or any Letter of
Credit or such L/C Participant's L/C Participation therein; and the result of
any of the foregoing is to increase the cost to the Letter of Credit Issuer or
such L/C Participant of issuing, maintaining or participating in any Letter of
Credit, or to reduce the amount of any sum received or receivable by the Letter
of Credit Issuer or such L/C Participant hereunder (other than any such increase
or
<PAGE>
44
reduction attributable to taxes) in respect of Letters of Credit or L/C
Participations therein, then, promptly after receipt of written demand to the
Borrower by the Letter of Credit Issuer or such L/C Participant, as the case may
be (a copy of which notice shall be sent by the Letter of Credit Issuer or such
L/C Participant to the Administrative Agent), the Borrower shall pay to the
Letter of Credit Issuer or such L/C Participant such additional amount or
amounts as will compensate the Letter of Credit Issuer or such L/C Participant
for such increased cost or reduction, it being understood and agreed, however,
that the Letter of Credit Issuer or a L/C Participant shall not be entitled to
such compensation as a result of such Person's compliance with, or pursuant to
any request or directive to comply with, any such law, rule or regulation as in
effect on the date hereof. A certificate submitted to the Borrower by the
Letter of Credit Issuer or a L/C Participant, as the case may be (a copy of
which certificate shall be sent by the Letter of Credit Issuer or such L/C
Participant to the Administrative Agent), setting forth in reasonable detail the
basis for the determination of such additional amount or amounts necessary to
compensate the Letter of Credit Issuer or such L/C Participant as aforesaid
shall be conclusive and binding on the Borrower absent clearly demonstrable
error.
3.6 Successor Letter of Credit Issuer. The Letter of Credit Issuer
----------------------------------
may resign as Letter of Credit Issuer upon 60 days' prior written notice to the
Administrative Agent, the Lenders and the Borrower. If the Letter of Credit
Issuer shall resign as Letter of Credit Issuer under this Agreement, then the
Borrower shall appoint from among the Lenders a successor issuer of Letters of
Credit, whereupon such successor issuer shall succeed to the rights, powers and
duties of the Letter of Credit Issuer, and the term "Letter of Credit Issuer"
shall mean such successor issuer effective upon such appointment. At the time
such resignation shall become effective, the Borrower shall pay to the resigning
Letter of Credit Issuer all accrued and unpaid fees pursuant to Sections 4.1(c)
and (d). The acceptance of any appointment as the Letter of Credit Issuer
hereunder by a successor Lender shall be evidenced by an agreement entered into
by such successor, in a form satisfactory to the Borrower and the Administrative
Agent and, from and after the effective date of such agreement, such successor
Lender shall have all the rights and obligations of the previous Letter of
Credit Issuer under this Agreement. After the resignation of the Letter of
Credit Issuer hereunder, the resigning Letter of Credit Issuer shall remain a
party hereto and shall continue to have all the rights and obligations of a
Letter of Credit Issuer under this Agreement with respect to Letters of
<PAGE>
45
Credit issued by it prior to such resignation, but shall not be required to
issue additional Letters of Credit. After any retiring Letter of Credit Issuer's
resignation as Letter of Credit Issuer, the provisions of this Agreement
relating to the Letter of Credit Issuer shall inure to its benefit as to any
actions taken or omitted to be taken by it (a) while it was Letter of Credit
Issuer under this Agreement or (b) at any time with respect to Letters of Credit
issued by such Letter of Credit Issuer.
SECTION 4. Fees; Commitments.
------------------
4.1 Fees. (a) The Borrower agrees to pay to the Administrative
-----
Agent, for the account of each Lender (pro rata according to their respective
Revolving Credit Commitments), a commitment fee for each day from and including
the Closing Date to but excluding the Final Date. Such commitment fee shall be
payable in arrears (x) on December 31, 1997 (for the period ended on such day),
(y) on the last day of each March, June, September and December (for the three-
month period (or portion thereof) ended on the such day for which no payment has
been received pursuant to clause (ii)(x) above) and (z) on the Final Date (for
the period ended on such date for which no payment has been received pursuant to
clause (ii)(y) above), and shall be computed for each day during such period at
a rate per annum equal to the Commitment Fee Rate in effect on such day on the
Available Commitments in effect on such day. Notwithstanding the foregoing, the
Borrower shall not be obligated to pay any amounts to any Defaulting Lender
pursuant to this Section 4.1.
(b) The Borrower agrees to pay to the Administrative Agent for the
account of the Lenders pro rata on the basis of their respective Letter of
--- ----
Credit Exposure, a fee in respect of each Letter of Credit (the "Letter of
---------
Credit Fee"), for the period from and including the date of issuance of such
- ----------
Letter of Credit to but not including the termination date of such Letter of
Credit computed at the per annum rate for each day equal to the Applicable
Margin on the average daily Stated Amount of such Letter of Credit. Such Letter
of Credit Fees shall be due and payable quarterly in arrears on the last day of
each March, June, September and December and on the date upon which the Total
Revolving Credit Commitment terminates and the Letter of Credit Outstandings
shall have been reduced to zero.
(c) The Borrower agrees to pay to the Administrative Agent for the
account of the Letter of Credit Issuer a fee in respect of each Letter of Credit
issued by
<PAGE>
46
it (the "Fronting Fee"), for the period from and including the date of
------------
issuance of such Letter of Credit to but not including the termination date of
such Letter of Credit, computed at the rate for each day equal to 0.125% per
annum on the average daily Stated Amount of such Letter of Credit. Such Fronting
Fees shall be due and payable quarterly in arrears on the last day of each
March, June, September and December and on the date upon which the Total
Revolving Credit Commitment terminates and the Letter of Credit Outstandings
shall have been reduced to zero.
(d) The Borrower agrees to pay directly to the Letter of Credit
Issuer upon each issuance of, drawing under, and/or amendment of, a Letter of
Credit issued by it such amount as the Letter of Credit Issuer and the Borrower
shall have agreed upon for issuances of, drawings under or amendments of,
letters of credit issued by it.
(e) The Borrower agrees to pay to the Administrative Agent, on the
Closing Date, the fees in the amounts and on the dates previously agreed to in
writing by the Borrower and the Administrative Agent. The Administrative Agent
agrees to pay to each Lender, for its own account on the Closing Date, the fees
in the amounts and on the dates previously agreed to in writing by the
Administrative Agent and such Lender.
4.2 Voluntary Reduction of Revolving Credit Commitments. Upon at
----------------------------------------------------
least one Business Day's prior written notice (or telephonic notice promptly
confirmed in writing) to the Administrative Agent at the Administrative Agent's
Office (which notice the Administrative Agent shall promptly transmit to each of
the Lenders), the Borrower shall have the right, without premium or penalty, on
any day, permanently to terminate or reduce the Revolving Credit Commitments in
whole or in part, provided that (a) any such reduction shall apply
--------
proportionately and permanently to reduce the Revolving Credit Commitment of
each of the Lenders, (b) any partial reduction pursuant to this Section 4.2
shall be in the amount of at least $1,000,000 and (c) after giving effect to
such termination or reduction and to any prepayments of the Loans made on the
date thereof in accordance with this Agreement, the sum of (i) the aggregate
outstanding principal amount of the Revolving Credit Loans and the Swingline
Loans and (ii) the Letter of Credit Outstandings shall not exceed the Total
Revolving Credit Commitment.
4.3 Mandatory Termination of Commitments. (a) The Total Revolving
-------------------------------------
Credit Commitment shall terminate
<PAGE>
47
at 5:00 P.M. (New York time) on the Revolving Credit Maturity Date.
(b) The Swingline Commitment shall terminate at 5:00 P.M. (New York
time) on the Swingline Maturity Date.
SECTION 5. Payments.
---------
5.1 Voluntary Prepayments. The Borrower shall have the right to
----------------------
prepay Revolving Credit Loans and Swingline Loans, without premium or penalty,
in whole or in part from time to time on the following terms and conditions:
(a) the Borrower shall give the Administrative Agent at the Administrative
Agent's Office written notice (or telephonic notice promptly confirmed in
writing) of its intent to make such prepayment, the amount of such prepayment
and (in the case of Eurodollar Loans) the specific Borrowing(s) pursuant to
which made, which notice shall be given by the Borrower no later than (i) in the
case of Revolving Credit Loans, 10:00 A.M. (New York time) one Business Day
prior to, or (ii) in the case of Swingline Loans, 10:00 A.M. (New York time) on,
the date of such prepayment and shall promptly be transmitted by the
Administrative Agent to each of the Lenders or Chase, as the case may be; (b)
each partial prepayment of any Borrowing of Revolving Credit Loans shall be in a
multiple of $100,000 and in an aggregate principal amount of at least $1,000,000
and each partial prepayment of Swingline Loans shall be in a multiple of
$100,000 and in an aggregate principal amount of at least $100,000, provided
--------
that no partial prepayment of Eurodollar Loans made pursuant to a single
Borrowing shall reduce the outstanding Eurodollar Loans made pursuant to such
Borrowing to an amount less than the Minimum Borrowing Amount for Eurodollar
Loans; and (c) any prepayment of Eurodollar Loans pursuant to this Section 5.1
on any day other than the last day of an Interest Period applicable thereto
shall be subject to compliance by the Borrower with the applicable provisions of
Section 2.11. At the Borrower's election in connection with any prepayment
pursuant to this Section 5.1, such prepayment shall not be applied to any
Revolving Credit Loan of a Defaulting Lender.
5.2 Mandatory Prepayments. (a) Aggregate Revolving Credit
---------------------- --------------------------
Outstandings. If on any date the sum of the outstanding principal amount of the
- -------------
Revolving Credit Loans and Swingline Loans and the aggregate amount of Letter of
Credit Outstandings (all the foregoing, collectively, the "Aggregate Revolving
-------------------
Credit Outstandings") exceeds the Total Revolving Credit Commitment as then in
- -------------------
effect, the Borrower shall forthwith repay on such date the principal amount of
<PAGE>
48
Swingline Loans and, after all Swingline Loans have been paid in full, Revolving
Credit Loans, in an amount equal to such excess. If, after giving effect to the
prepayment of all outstanding Swingline Loans and Revolving Credit Loans, the
Aggregate Revolving Credit Outstandings exceed the Total Revolving Credit
Commitment then in effect, the Borrower shall pay to the Administrative Agent an
amount in cash equal to such excess and the Administrative Agent shall hold such
payment for the benefit of the Lenders as security for the obligations of the
Borrower hereunder (including, without limitation, obligations in respect of
Letter of Credit Outstandings) pursuant to a cash collateral agreement to be
entered into in form and substance satisfactory to the Administrative Agent
(which shall permit certain investments in Permitted Investments satisfactory to
the Administrative Agent, until the proceeds are applied to the secured
obligations).
(b) Application to Revolving Credit Loans. With respect to each
--------------------------------------
prepayment of Revolving Credit Loans required by Section 5.2(a), the Borrower
may designate the Types of Loans that are to be prepaid and the specific
Borrowing(s) pursuant to which made, provided that (i) if any prepayment of
--------
Eurodollar Loans made pursuant to a single Borrowing shall reduce the
outstanding Revolving Credit Loans made pursuant to such Borrowing to an amount
less than the Minimum Borrowing Amount for Eurodollar Loans, such Borrowing
shall immediately be converted into ABR Loans; (ii) each prepayment of any Loans
made pursuant to a Borrowing shall be applied pro rata among such Loans; and
--- ----
(iii) notwithstanding the provisions of the preceding clause (ii), no prepayment
made pursuant to Section 5.2(a) of Revolving Credit Loans shall be applied to
the Revolving Credit Loans of any Defaulting Lender. In the absence of a
designation by the Borrower as described in the preceding sentence, the
Administrative Agent shall, subject to the above, make such designation in its
reasonable discretion with a view, but no obligation, to minimize breakage costs
owing under Section 2.11.
(c) Eurodollar Interest Periods. In lieu of making any payment
----------------------------
pursuant to this Section 5.2 in respect of any Eurodollar Loan other than on the
last day of the Interest Period therefor, so long as no Default or Event of
Default shall have occurred and be continuing, the Borrower at its option may
deposit with the Administrative Agent an amount equal to the amount of the
Eurodollar Loan to be prepaid and such Eurodollar Loan shall be repaid on the
last day of the Interest Period therefor in the required amount. Such deposit
shall be held by the Administrative Agent in a corporate time deposit account
established on terms
<PAGE>
49
reasonably satisfactory to the Administrative Agent, earning interest at the
then-customary rate for accounts of such type. Such deposit shall constitute
cash collateral for the Obligations, provided that the Borrower may at any
--------
time direct that such deposit be applied to make the applicable payment required
pursuant to this Section 5.2.
5.3 Method and Place of Payment. (a) Except as otherwise
----------------------------
specifically provided herein, all payments under this Agreement shall be made,
without set-off, counterclaim or deduction of any kind, to the Administrative
Agent for the ratable account of the Lenders entitled thereto, the Letter of
Credit Issuer or Chase, as the case may be, not later than 12:00 Noon (New York
time) on the date when due and shall be made in immediately available funds and
in lawful money of the United States of America at the Administrative Agent's
Office, it being understood that written or facsimile notice by the Borrower to
the Administrative Agent to make a payment from the funds in the Borrower's
account at the Administrative Agent's Office shall constitute the making of such
payment to the extent of such funds held in such account. The Administrative
Agent will thereafter cause to be distributed on the same day (if payment was
actually received by the Administrative Agent prior to 2:00 P.M. (New York time)
on such day) like funds relating to the payment of principal or interest or Fees
ratably to the Lenders entitled thereto.
(b) Any payments under this Agreement that are made later than 2:30
P.M. (New York time) shall be deemed to have been made on the next succeeding
Business Day. Whenever any payment to be made hereunder shall be stated to be
due on a day that is not a Business Day, the due date thereof shall be extended
to the next succeeding Business Day and, with respect to payments of principal,
interest shall be payable during such extension at the applicable rate in effect
immediately prior to such extension.
5.4 Net Payments. (a) All payments made by the Borrower under this
-------------
Agreement shall be made free and clear of, and without deduction or withholding
for or on account of, any current or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any Governmental
Authority, excluding (i) net income taxes and franchise taxes (imposed in lieu
of net income taxes) imposed on the Administrative Agent or any Lender and (ii)
any taxes imposed on the Administrative Agent or any Lender as a result of a
current or former connection between the Administrative Agent or such Lender and
the jurisdiction of the Governmental
<PAGE>
50
Authority imposing such tax or any political subdivision or taxing authority
thereof or therein (other than any such connection arising solely from the
Administrative Agent or such Lender having executed, delivered or performed its
obligations or received a payment under, or enforced, this Agreement). If any
such non-excluded taxes, levies, imposts, duties, charges, fees, deductions or
withholdings ("Non-Excluded Taxes") are required to be withheld from any amounts
------------------
payable to the Administrative Agent or any Lender hereunder, the amounts so
payable to the Administrative Agent or such Lender shall be increased to the
extent necessary to yield to the Administrative Agent or such Lender (after
payment of all Non-Excluded Taxes) interest or any such other amounts payable
hereunder at the rates or in the amounts specified in this Agreement; provided,
--------
however, that the Borrower shall not be required to increase any such amounts
- -------
payable to any Lender that is not organized under the laws of the United States
of America or a state thereof if such Lender fails to comply with the
requirements of paragraph (b) of this Section 5.4. Whenever any Non-Excluded
Taxes are payable by the Borrower, as promptly as possible thereafter the
Borrower shall send to the Administrative Agent for its own account or for the
account of such Lender, as the case may be, a certified copy of an original
official receipt received by the Borrower showing payment thereof. If the
Borrower fails to pay any Non-Excluded Taxes when due to the appropriate taxing
authority or fails to remit to the Administrative Agent the required receipts or
other required documentary evidence, the Borrower shall indemnify the
Administrative Agent and the Lenders for any incremental taxes, interest, costs
or penalties that may become payable by the Administrative Agent or any Lender
as a result of any such failure. The agreements in this Section 5.4(a) shall
survive the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder.
(b) Each Lender that is not incorporated or organized under the laws
of the United States of America or a state thereof (a "Non-U.S. Lender") shall:
---------------
(i) deliver to the Borrower and the Administrative Agent two
copies of either United States Internal Revenue Service Form 1001 or Form
4224 or, in the case of Non-U.S. Lender claiming exemption from U.S.
Federal withholding tax under Section 871(h) or 881(c) of the Code with
respect to payments of "portfolio interest", a Form W-8, or any subsequent
versions thereof or successors thereto (and, if such Non-U.S. Lender
delivers a Form W-8, a certificate representing that such Non-U.S. Lender
is not a bank
<PAGE>
51
for purposes of Section 881(c) of the Code, is not a 10-percent shareholder
(within the meaning of Section 871(h)(3)(B) of the Code) of the Borrower
and is not a controlled foreign corporation related to the Borrower (within
the meaning of Section 864(d)(4) of the Code)), properly completed and duly
executed by such Non-U.S. Lender claiming complete exemption from, or
reduced rate of, U.S. Federal withholding tax on payments by the Borrower
under this Agreement;
(ii) deliver to the Borrower and the Administrative Agent two
further copies of any such form or certification on or before the date that
any such form or certification expires or becomes obsolete and after the
occurrence of any event requiring a change in the most recent form
previously delivered by it to the Borrower; and
(iii) obtain such extensions of time for filing and complete
such forms or certifications as may reasonably be requested by the Borrower
or the Administrative Agent;
unless in any such case any change in treaty, law or regulation has occurred
prior to the date on which any such delivery would otherwise be required that
renders any such form inapplicable or would prevent such Lender from duly
completing and delivering any such form with respect to it and such Lender so
advises the Borrower and the Administrative Agent. Each Person that shall
become a Participant pursuant to Section 13.6 or a Lender pursuant to Section
13.6 shall, upon the effectiveness of the related transfer, be required to
provide all the forms and statements required pursuant to this Section 5.4(b),
provided that in the case of a Participant such Participant shall furnish all
such required forms and statements to the Lender from which the related
participation shall have been purchased.
(c) The Borrower shall not be required to indemnify any Non-U.S.
Lender, or to pay any additional amounts to any Non-U.S. Lender, in respect of
U.S. Federal withholding tax pursuant to paragraph (a) above to the extent that
(i) the obligation to withhold amounts with respect to U.S. Federal withholding
tax existed on the date such Non-U.S. Lender became a party to this Agreement
(or, in the case of a Non-U.S. Participant, on the date such Participant became
a Participant hereunder); provided, however, that this clause (i) shall not
-------- -------
apply to the extent that (x) the indemnity payments or additional amounts any
Lender (or Participant) would be entitled to receive
<PAGE>
52
(without regard to this clause (i)) do not exceed the indemnity payment or
additional amounts that the person making the assignment, participation or
transfer to such Lender (or Participant) would have been entitled to receive in
the absence of such assignment, participation or transfer, or (y) such
assignment, participation or transfer had been requested by the Borrower, (ii)
the obligation to pay such additional amounts would not have arisen but for a
failure by such Non-U.S. Lender or Non-U.S. Participant to comply with the
provisions of paragraph (b) above or (iii) any of the representations or
certifications made by a Non-U.S. Lender or Non-U.S. Participant pursuant to
paragraph (b) above are incorrect at the time a payment hereunder is made, other
than by reason of any change in treaty, law or regulation having effect after
the date such representations or certifications were made.
(d) If the Borrower determines in good faith that a reasonable basis
exists for contesting any taxes for which indemnification has been demanded
hereunder, the relevant Lender or the Administrative Agent, as applicable, shall
cooperate with the Borrower in challenging such taxes at the Borrower's expense
if so requested by the Borrower. If any Lender or the Administrative Agent, as
applicable, receives a refund of a tax for which a payment has been made by the
Borrower pursuant to this Agreement, which refund in the good faith judgment of
such Lender or Administrative Agent, as the case may be, is attributable to such
payment made by the Borrower, then the Lender or the Administrative Agent, as
the case may be, shall reimburse the Borrower for such amount as the Lender or
Administrative Agent, as the case may be, determines to be the proportion of the
refund as will leave it, after such reimbursement, in no better or worse
position than it would have been in if the payment had not been required. A
Lender or Administrative Agent shall claim any refund that it determines is
available to it, unless it concludes in its reasonable discretion that it would
be adversely affected by making such a claim. Neither the Lender nor the
Administrative Agent shall be obliged to disclose any information regarding its
tax affairs or computations to the Borrower in connection with this paragraph
(d) or any other provision of this Section 5.4.
(e) Each Lender represents and agrees that, on the date hereof and at
all times during the term of this Agreement, it is not and will not be a conduit
entity participating in a conduit financing arrangement (as defined in Section
7701(1) of the Code and the regulations thereunder) with respect to the
Borrowings hereunder unless the Borrower has consented to such arrangement prior
thereto.
<PAGE>
53
5.5 Computations of Interest and Fees. (a) Interest on Eurodollar
----------------------------------
Loans and, except as provided in the next succeeding sentence, ABR Loans shall
be calculated on the basis of a 360-day year for the actual days elapsed.
Interest on ABR Loans in respect of which the rate of interest is calculated on
the basis of the Prime Rate and interest on overdue interest shall be calculated
on the basis of a 365- (or 366-, as the case may be) day year for the actual
days elapsed.
(b) Fees and Letter of Credit Outstandings shall be calculated on the
basis of a 365- (or 366-, as the case may be) day year for the actual days
elapsed.
SECTION 6. Conditions Precedent to Initial Borrowing. The initial
------------------------------------------
Borrowing under this Agreement is subject to the satisfaction of the following
conditions precedent:
6.1 Agreement. The Administrative Agent shall have received this
----------
Agreement, executed and delivered by a duly authorized officer of the General
Partner, on behalf of the Borrower, and of each Lender.
6.2 Closing Certificate. The Administrative Agent shall have
--------------------
received a certificate of the General Partner, dated the Closing Date,
substantially in the form of Exhibit E, with appropriate insertions, executed by
the President or any Vice President and the Secretary or any Assistant Secretary
of the General Partner, and attaching the documents referred to in Sections 6.3
and 6.4.
6.3 Authorization Proceedings. The Administrative Agent shall have
--------------------------
received a copy of (a) the resolutions, in form and substance satisfactory to
the Administrative Agent, of the Board of Directors of the General Partner (or a
duly authorized committee thereof) authorizing the execution, delivery and
performance by the Borrower of the Credit Documents and the extension of credit
contemplated hereunder and (b) any other resolutions or authorizations necessary
to authorize the execution, delivery and performance by the Borrower of the
Credit Documents.
6.4 Documents. The Administrative Agent shall have received true and
----------
complete copies of (a) the agreement of limited partnership, as amended, of the
Borrower and (b) the certificate of incorporation and by-laws of the General
Partner.
<PAGE>
54
6.5 Fees. The Administrative Agent shall have received the fees
-----
referred to in Section 4.1(e) to be received on the Closing Date.
6.6 Existing Credit Agreement. All loans outstanding under, and all
--------------------------
other amounts due in respect of, the Existing Credit Agreement shall have been
repaid in full; the commitments under the Existing Credit Agreement shall have
been permanently terminated; all obligations under the Existing Credit Agreement
shall have been discharged; and the Administrative Agent shall have received
reasonably satisfactory evidence of such repayment, termination and discharge.
6.7 Legal Opinions. The Administrative Agent shall have received,
---------------
with a counterpart for each Lender, the executed legal opinions of (a) Simpson
Thacher & Bartlett, special New York counsel to the Borrower, substantially in
the form of Exhibit C-1, and (b) Lawrence L. Dieker, counsel to the Borrower,
substantially in the form of Exhibit C-2, and the Borrower hereby instructs such
counsel to deliver such legal opinions.
SECTION 7. Conditions Precedent to All Credit Events. The agreement
------------------------------------------
of each Lender to make any Loan requested to be made by it on any date
(including, without limitation, its initial Loan, but excluding Mandatory
Borrowings) and the obligation of the Letter of Credit Issuer to issue Letters
of Credit on any date is subject to the satisfaction of the following conditions
precedent:
7.1 No Default; Representations and Warranties. At the time of each
-------------------------------------------
Credit Event and also after giving effect thereto (a) there shall exist no
Default or Event of Default and (b) all representations and warranties made by
the Borrower contained herein or in the other Credit Documents shall be true and
correct in all material respects with the same effect as though such
representations and warranties had been made on and as of the date of such
Credit Event (except where such representations and warranties expressly relate
to an earlier date, in which case such representations and warranties shall have
been true and correct in all material respects as of such earlier date).
7.2 Notice of Borrowing; Letter of Credit Request. (a) Prior to the
----------------------------------------------
making of each Revolving Credit Loan (other than any Revolving Credit Loan made
pursuant to Section 3.4(a)) and each Swingline Loan, the Administrative Agent
shall have received a Notice of Borrowing (whether in
<PAGE>
55
writing or by telephone) meeting the requirements of Section 2.3.
(b) Prior to the issuance of each Letter of Credit, the
Administrative Agent and the Letter of Credit Issuer shall have received a
Letter of Credit Request meeting the requirements of Section 3.2(a).
representation and warranty by the Borrower to each of the Lenders that all the
applicable conditions specified above exist as of that time.
SECTION 8. Representations, Warranties and Agree ments. In order to
--------------------------------------------
induce the Lenders to enter into this Agreement, to make the Loans and issue or
participate in Letters of Credit as provided for herein, the Borrower makes the
following representations and warranties to, and agreements with, the Lenders,
all of which shall survive the execution and delivery of this Agreement and the
making of the Loans and the issuance of the Letters of Credit:
8.1 Organization. The Borrower and each Subsidiary (a) is a duly
-------------
organized and validly existing limited partnership (in the case of the Borrower)
or corporation or other entity (in the case of each Subsidiary) in each case in
good standing under the laws of the jurisdiction of its organization and has the
partnership, corporate or other organizational power and authority to own its
property and assets and to transact the business in which it is engaged and (b)
has duly qualified and is authorized to do business and is in good standing in
all jurisdictions where it is required to be so qualified, except where the
failure to be so qualified could not reasonably be expected to result in a
Material Adverse Effect.
8.2 Power and Authority. The Borrower has the power and authority to
--------------------
execute, deliver and carry out the terms and provisions of the Credit Documents
and each of the Borrower and the General Partner has taken all necessary action
to authorize the execution, delivery and performance by the Borrower of the
Credit Documents. The Borrower has duly executed and delivered each Credit
Document and each such Credit Document constitutes the legal, valid and binding
obligation of the Borrower enforceable in accordance with its terms, except as
the enforceability thereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and subject to general principles of
equity.
<PAGE>
56
8.3 No Violation. Neither the execution, deliv ery and performance
-------------
by the Borrower of the Credit Documents nor compliance with the terms and
provisions thereof will (a) contravene any applicable provision of any material
law, statute, rule, regulation, order, writ, injunction or decree of any court
or governmental instrumentality, (b) result in any breach of any of the terms,
covenants, conditions or provisions of, or constitute a default under, or result
in the creation or imposition of (or the obligation to create or impose) any
Lien upon any of the property or assets of the Borrower or any of the
Subsidiaries pursuant to, the terms of any material indenture (including the
Note Indenture), loan agreement, lease agreement, mortgage, deed of trust,
agreement or other material instrument to which the Borrower or any of its
Subsidiaries is a party or by which it or any of its property or assets is bound
or (c) violate any provision of the agreement of limited partnership of the
Borrower or the certificate of incorporation or By-Laws of the General Partner
or any of the Borrower's Subsidiaries.
8.4 Litigation. Except as set forth in the Borrower's audited
-----------
financial statements for the fiscal year ended December 31, 1996, there are no
actions, suits or proceedings (including, without limitation, Environmental
Claims) pending or, to the knowledge of the Borrower, threatened with respect to
the Borrower or any of its Subsidiaries that could reasonably be expected to
result in a Material Adverse Effect.
8.5 Margin Regulations. Neither the making of any Loan hereunder nor
-------------------
the use of the proceeds thereof will violate the provisions of Regulation G, T,
U or X of the Board.
8.6 Governmental Approvals. No order, consent, approval, license,
-----------------------
authorization, or validation of, or fil ing, recording or registration with, or
exemption by, any Governmental Authority is required to authorize or is required
in connection with (a) the execution, delivery and performance of any Credit
Document or (b) the legality, validity, binding effect or enforceability of any
Credit Document, except any of the foregoing the failure to obtain or make could
not reasonably be expected to have a Material Adverse Effect.
8.7 Investment Company Act and Public Utility Holding Company Act.
--------------------------------------------------------------
The Borrower is not an "investment company" within the meaning of the Investment
Company Act of 1940, as amended. The Borrower is not a "holding company"
<PAGE>
57
as defined in, or subject to regulation under, the Public Utility Holding
Company Act of 1935, as amended.
8.8 True and Complete Disclosure. (a) All factual information and
-----------------------------
data (taken as a whole) heretofore or contemporaneously furnished by the
Borrower, any of its Subsidiaries or any of their respective authorized
representatives in writing to the Administrative Agent and/or any Lender on or
before the Closing Date (including, without limitation, (i) the Confidential
Information Memorandum and (ii) all information contained in the Credit
Documents) for purposes of or in connection with this Agreement or any
transaction contemplated herein was true and complete in all material respects
on the date as of which such information or data is dated or certified and was
not incomplete by omitting to state any material fact necessary to make such
information and data (taken as a whole) not misleading at such time in light of
the circumstances under which such information or data was furnished, it being
understood and agreed that for purposes of this Section 8.8(a), such factual
information and data shall not include projections and pro forma financial
information.
(b) The projections and pro forma financial information contained in
the information and data referred to in paragraph (a) above were based on good
faith estimates and assumptions believed by such Persons to be reasonable at the
time made, it being recognized by the Lenders that such projections as to future
events are not to be viewed as facts and that actual results during the period
or periods covered by any such projections may differ from the projected
results.
8.9 Financial Condition; Financial Statements. (a) The consolidated
------------------------------------------
balance sheet of the Borrower and its Subsidiaries at December 31, 1996, and the
related consolidated statements of operations, cash flows and changes in
partners' capital for the fiscal year ended as of such date, which statements
have been audited by Price Waterhouse LLP, independent certified public
accountants, who delivered an unqualified opinion with respect thereto, and (b)
the unaudited consolidated balance sheet of the Borrower and its Subsidiaries at
September 30, 1997, and the related consolidated statements of operations, cash
flows and changes in partners' capital for the respective fiscal quarters and
portions of the fiscal year ended as of such dates, in each case present fairly
in all material respects the consolidated financial position of the Borrower and
its Subsidiaries at the respective dates of said statements and the results of
operations for the respective periods covered
<PAGE>
58
thereby. All such financial statements have been prepared in accordance with
GAAP consistently applied except to the extent provided in the notes to said
financial statements and, in the case of said financial statements referred to
in clause (b), subject to normal year-end audit adjustments. There has been no
Material Adverse Change since December 31, 1996, other than solely as a result
of changes in general economic conditions.
8.10 Tax Returns and Payments. Each of the Borrower and its
-------------------------
Subsidiaries has filed all federal income tax returns and all other material tax
returns, domestic and foreign, required to be filed by it and has paid all
material taxes and assessments payable by it that have become due, other than
those not yet delinquent or contested in good faith. The Borrower and each of
its Subsidiaries have paid, or have provided adequate reserves (in the good
faith judgment of the management of the Borrower) in accordance with GAAP for
the payment of, all material federal, state and foreign income taxes applicable
for all prior fiscal years and for the current fiscal year to the Closing Date.
8.11 Compliance with ERISA. Each Plan is in compliance with ERISA,
----------------------
the Code and any applicable Requirement of Law; no Reportable Event has occurred
(or is reasonably likely to occur) with respect to any Plan; no Plan is
insolvent or in reorganization (or is reasonably likely to be insolvent or in
reorganization), and no written notice of any such insolvency or reorganization
has been given to the Borrower, any Subsidiary or any ERISA Affiliate; no Plan
(other than a multiemployer plan) has an accumulated or waived funding
deficiency (or is reasonably likely to have such a deficiency); neither the
Borrower nor any Subsidiary nor any ERISA Affiliate has incurred (or is
reasonably likely expected to incur) any liability to or on account of a Plan
pursuant to Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201 or
4204 of ERISA or Section 4971 or 4975 of the Code or has been notified in
writing that it will incur any liability under any of the foregoing Sections
with respect to any Plan; no proceedings have been instituted (or are reasonably
likely to be instituted) to terminate or to reorganize any Plan or to appoint a
trustee to administer any Plan, and no written notice of any such proceedings
has been given to the Borrower, any Subsidiary or any ERISA Affiliate; and no
lien imposed under the Code or ERISA on the assets of the Borrower or any
Subsidiary or any ERISA Affiliate exists (or is reasonably likely to exist) nor
has the Borrower, any Subsidiary or any ERISA Affiliate been notified in writing
that such a lien will be imposed on the assets of the
<PAGE>
59
Borrower, any Subsidiary or any ERISA Affiliate on account of any Plan, except
------
to the extent that a breach of any of the foregoing representations, warranties
or agreements in this Section 8.11 would not result, individually or in the
aggregate, in an amount of liability that would be reasonably likely to have a
Material Adverse Effect or relates to any matter disclosed in the financial
statements of the Borrower contained in the Confidential Information Memorandum.
No Plan (other than a multiemployer plan) has an Unfunded Current Liability that
would, individually or when taken together with any other liabilities referenced
in this Section 8.11, be reasonably likely to have a Material Adverse Effect.
With respect to Plans that are multiemployer plans (as defined in Section 3(37)
of ERISA), the representations and warranties in this Section 8.11, other than
any made with respect to (a) liability under Section 4201 or 4204 of ERISA or
(b) liability for termination or reorganization of such Plans under ERISA, are
made to the best knowledge of the Borrower.
8.12 Subsidiaries. BCF Finance Corporation is the only Subsidiary
-------------
of the Borrower as of the Closing Date.
8.13 Patents, etc. The Borrower and each of its Subsidiaries have
-------------
obtained all patents, trademarks, servicemarks, trade names, copyrights,
licenses and other rights, free from burdensome restrictions, that are necessary
for the operation of their respective businesses as currently conducted and as
proposed to be conducted, except where the failure to obtain any such rights
could not reasonably be expected to have a Material Adverse Effect.
8.14 Environmental Laws. (a) Other than instances of noncompliance
-------------------
that could not reasonably be expected to have a Material Adverse Effect: (i) the
Borrower and each of its Subsidiaries are in compliance with all Environmental
Laws in all jurisdictions in which the Borrower and each of its Subsidiaries are
currently doing business (including, without limitation, having obtained all
material permits required under Environmental Laws) and (ii) the Borrower will
comply and cause each of its Subsidiaries to comply with all such Environmental
Laws (including, without limitation, all permits required under Environmental
Laws).
(b) Neither the Borrower nor any of its Subsidiaries has treated,
stored, transported or disposed of Hazardous Materials at or from any currently
or formerly owned Real Estate (as defined in Section 9.1(e)) or facility
relating to its business in a manner that could reasonably be expected to have a
Material Adverse Effect.
<PAGE>
60
8.15 Properties. The Borrower and each of its Subsidiaries have good
-----------
title to or leasehold interest in all properties that are necessary for the
operation of their respective businesses as currently conducted and as proposed
to be conducted, free and clear of all Liens (other than any Liens permitted by
this Agreement) and except where the failure to have such good title could not
reasonably be expected to have a Material Adverse Effect.
SECTION 9. Affirmative Covenants. The Borrower hereby covenants and
----------------------
agrees that on the Closing Date and thereafter, for so long as this Agreement is
in effect and until the Revolving Credit Commitments, the Swingline Commitment
and each Letter of Credit have terminated and the Loans and Unpaid Drawings,
together with interest, Fees and all other Obligations incurred hereunder, are
paid in full:
9.1 Information Covenants. The Borrower will furnish to each Lender
----------------------
and the Administrative Agent:
(a) Annual Financial Statements. As soon as available and in any
----------------------------
event within 95 days after the close of each fiscal year of the Borrower,
the consolidated balance sheet of the Borrower and its Subsidiaries as at
the end of such fiscal year and the related consolidated statements of
operations, cash flows and changes in partners' capital for such fiscal
year, setting forth comparative consolidated figures for the preceding
fiscal year, and certified by independent certified public accountants of
recognized national standing whose opinion shall not be qualified as to the
scope of audit or as to the status of the Borrower or any of its
Subsidiaries as a going concern, together in any event with a certificate
of such accounting firm stating that in the course of its regular audit of
the business of the Borrower and its Subsidiaries, which audit was
conducted in accordance with generally accepted auditing standards, such
accounting firm has obtained no knowledge of any Default or Event of
Default relating to Sections 10.8 and 10.9 that has occurred and is
continuing or, if in the opinion of such accounting firm such a Default or
Event of Default has occurred and is continuing, a statement as to the
nature thereof.
(b) Quarterly Financial Statements. As soon as available and in any
-------------------------------
event within 50 days after the close of each of the first three fiscal
quarters of each fiscal year of the Borrower, the consolidated balance
sheet of the Borrower and its Subsidiaries as
<PAGE>
61
at the end of such quarterly period and the related consolidated statements
of operations, cash flows and changes in partners' capital for such
quarterly accounting period and for the elapsed portion of the fiscal year
ended with the last day of such quarterly period, and the related
consolidated statement of cash flows for the elapsed portion of the fiscal
year ended with the last day of such quarterly period, and setting forth
comparative consolidated figures for the related periods in the prior
fiscal year or, in the case of such consolidated balance sheet, for the
last day of the prior fiscal year, all of which shall be certified by an
Authorized Officer, subject to changes resulting from audit and normal
year-end audit adjustments.
(c) Officer's Certificates. At the time of the delivery of the
-----------------------
financial statements provided for in Sections 9.1(a) and (b), a certificate
of an Authorized Officer to the effect that no Default or Event of Default
exists or, if any Default or Event of Default does exist, specifying the
nature and extent thereof, which certificate shall set forth the
calculations required to establish whether the Borrower and its
Subsidiaries were in compliance with the provisions of (i) Sections 10.8
and 10.9 as at the end of such fiscal year or period, as the case may be,
and (ii) Section 10.6 with respect to all Restricted Payments made since
the date of the most recent certificate delivered pursuant to this
paragraph (or, in the case of the first such certificate, since the date of
this Agreement).
(d) Notice of Default or Litigation. Promptly after an Authorized
--------------------------------
Officer obtains knowledge thereof, notice of (i) the occurrence of any
event that constitutes a Default or Event of Default, which notice shall
specify the nature thereof, the period of existence thereof and what action
the Borrower proposes to take with respect thereto, and (ii) any litigation
or governmental proceeding pending against the Borrower or any of its
Subsidiaries that could reasonably be expected to result in a Material
Adverse Effect.
(e) Environmental Matters. The Borrower will promptly advise the
----------------------
Lenders in writing after obtaining knowledge of any one or more of the
following environmental matters, unless such environmental
<PAGE>
62
matters would not, individually or when aggregated with all other such
matters, be reasonably expected to result in a Material Adverse Effect:
(i) Any pending or threatened Environmental Claim against
the Borrower or any of its Subsidiaries or any Real Estate (as defined
below);
(ii) Any condition or occurrence on any Real Estate that (x)
results in noncompliance by the Borrower or any of its Subsidiaries
with any applicable Environmental Law or (y) could reasonably be
anticipated to form the basis of an Environmental Claim against the
Borrower or any of its Subsidiaries or any Real Estate;
(iii) Any condition or occurrence on any Real Estate that
could reasonably be anticipated to cause such Real Estate to be
subject to any re strictions on the ownership, occupancy, use or
transferability of such Real Estate under any Environmental Law; and
(iv) The taking of any removal or remedial action in
response to the actual or alleged presence of any Hazardous Material
on any Real Estate.
All such notices shall describe in reasonable detail the nature of the
claim, investigation, condition, occurrence or removal or remedial action
and the Borrower's response thereto. The term "Real Estate" shall mean
-----------
land, buildings and improvements owned or leased by the Borrower or any of
its Subsidiaries, but excluding all operating fixtures and equipment,
whether or not incorporated into improvements.
(f) Other Information. Promptly upon filing thereof, copies of any
------------------
filings on Form 10-K, 10-Q or 8-K or registration statements with, and
reports to, the SEC by the Borrower or any of its Subsidiaries (other than
amendments to any registration statement (to the extent such registration
statement, in the form it becomes effective, is delivered to the Lenders),
exhibits to any registration statement and any registration statements on
Form S-8) and copies of all financial statements, proxy statements, notices
and reports that the Borrower or any of its Subsidiaries shall send to the
holders of any publicly issued debt of the Borrower and/or any of its
Subsidiaries
<PAGE>
63
(including the 9.50% Notes) in their capacity as such holders (in each case
to the extent not theretofore delivered to the Lenders pursuant to this
Agreement) and, with reasonable promptness, such other information
(financial or otherwise) as the Administrative Agent on its own behalf or
on behalf of any Lender may reasonably request in writing from time to
time.
9.2 Books, Records and Inspections. The Borrower will, and will
-------------------------------
cause each of its Subsidiaries to, permit officers and designated
representatives of the Administrative Agent or the Required Lenders to visit and
inspect any of the properties or assets of the Borrower and any such Subsidiary
in whomsoever's possession to the extent that it is within the Borrower's or
such Subsidiary's control to permit such inspection, and to examine the books of
account of the Borrower and any such Subsidiary and discuss the affairs,
finances and accounts of the Borrower and of any such Subsidiary with, and be
advised as to the same by, its and their officers and independent accountants,
all at such reasonable times and intervals and to such reasonable extent as the
Administrative Agent or the Required Lenders may desire.
9.3 Maintenance of Insurance. The Borrower will, and will cause each
-------------------------
of its Material Subsidiaries to, at all times maintain in full force and effect,
with insurance companies that the Borrower believes (in the good faith judgment
of the management of the Borrower) are financially sound and responsible at the
time the relevant coverage is placed or renewed, insurance in at least such
amounts and against at least such risks (and with such risk retentions) as are
usually insured against in the same general area by companies engaged in the
same or a similar business; and will furnish to the Lenders, upon written
request from the Administrative Agent, information presented in reasonable
detail as to the insurance so carried.
9.4 Payment of Taxes. The Borrower 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 properties belonging to it, prior to the date on
which material penalties attach thereto, and all lawful material claims that, if
unpaid, could reasonably be expected to become a material Lien upon any
properties of the Borrower or any of its Subsidiaries, provided that neither the
--------
Borrower nor any of its Subsidiaries shall be required to pay any such tax,
assessment, charge, levy or claim that is being contested in good faith and by
proper proceedings if it has maintained
<PAGE>
64
adequate reserves (in the good faith judgment of the management of the Borrower)
with respect thereto in accordance with GAAP.
9.5 Existence. The Borrower will do, and will cause each Material
----------
Subsidiary to do, or cause to be done, all things necessary to preserve and keep
in full force and effect its existence, rights and authority, except to the
extent that the failure to do so could not reasonably be expected to have a
Material Adverse Effect; provided, however, that the Borrower and its
-------- -------
Subsidiaries may consummate any transaction permitted under Section 10.3 or
10.4.
9.6 Compliance with Statutes, Obligations, etc. The Borrower will,
-------------------------------------------
and will cause each Subsidiary to, comply with all applicable laws, rules,
regulations and orders, except to the extent the failure to do so could not
reasonably be expected to have a Material Adverse Effect.
9.7 ERISA. Promptly after the Borrower or any Subsidiary or any
------
ERISA Affiliate knows or has reason to know of the occurrence of any of the
following events that, individually or in the aggregate (including in the
aggregate such events previously disclosed or exempt from disclosure hereunder,
to the extent the liability therefor remains outstanding), would be reasonably
likely to have a Material Adverse Effect, the Borrower will deliver to each of
the Lenders a certificate of an Authorized Officer or any other senior officer
of the Borrower setting forth details as to such occurrence and the action, if
any, that the Borrower, such Subsidiary or such ERISA Affiliate is required or
proposes to take, together with any notices (required, proposed or otherwise)
given to or filed with or by the Borrower, such Subsidiary, such ERISA
Affiliate, the PBGC, a Plan participant (other than notices relating to an
individual participant's benefits) or the Plan administrator with respect
thereto: that a Reportable Event has occurred; that an accumulated funding
deficiency has been incurred or an application is to be made to the Secretary of
the Treasury for a waiver or modification of the minimum funding standard
(including any required installment payments) or an extension of any
amortization period under Section 412 of the Code with respect to a Plan; that a
Plan having an Unfunded Current Liability has been or is to be terminated,
reorganized, partitioned or declared insolvent under Title IV of ERISA
(including the giving of written notice thereof); that a Plan has an Unfunded
Current Liability that has or will result in a lien under ERISA or the Code;
that proceedings will be or have been instituted to terminate a Plan having an
Unfunded Current Liability (including the
<PAGE>
65
giving of written notice thereof); that a proceeding has been instituted against
the Borrower, a Subsidiary or an ERISA Affiliate pursuant to Section 515 of
ERISA to collect a delinquent contribution to a Plan; that the PBGC has notified
the Borrower, any Subsidiary or any ERISA Affiliate of its intention to appoint
a trustee to administer any Plan; that the Borrower, any Subsidiary or any ERISA
Affiliate has failed to make a required installment or other payment pursuant to
Section 412 of the Code with respect to a Plan; or that the Borrower, any
Subsidiary or any ERISA Affiliate has incurred or will incur (or has been
notified in writing that it will incur) any liability (including any contingent
or secondary liability) to or on account of a Plan pursuant to Section 409,
502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201 or 4204 of ERISA or Section
4971 or 4975 of the Code.
9.8 Good Repair. The Borrower will, and will cause each of its
------------
Subsidiaries to, ensure that its properties and equipment used or useful in its
business in whomsoever's possession they may be to the extent that it is within
the Borrower's or such Subsidiary's control to cause same, are kept in good
repair, working order and condition, normal wear and tear excepted, and that
from time to time there are made in such properties and equipment all needful
and proper repairs, renewals, replacements, extensions, additions, betterments
and improvements thereto, to the extent and in the manner customary for
companies in similar businesses and consistent with third party leases, except
in each case to the extent the failure to do so could not be reasonably expected
to have a Material Adverse Effect.
9.9 Transactions with Affiliates. The Borrower will conduct, and
-----------------------------
cause each of its Subsidiaries to conduct, all transactions with any of its
Affiliates on terms that are substantially as favorable to the Borrower or such
Subsidiary as it would obtain in a comparable arm's-length transaction with a
Person that is not an Affiliate, provided that the foregoing restrictions shall
--------
not apply to (a) the payment of customary annual fees to KKR and its Affiliates
for management, consulting and financial services rendered to the Borrower and
its Subsidiaries, and investment banking fees paid to KKR and its Affiliates for
services rendered to the Borrower and its Subsidiaries in connection with
divestitures, acquisitions, financings and other transactions, (b) customary
fees paid to members of the Board of Directors of the Borrower and its
Subsidiaries, (c) transactions permitted by Section 10.6 and (d) arrangements
with Borden and its Subsidiaries relating to the provision of administrative,
legal and management services to the Borrower in accordance with past practice.
<PAGE>
66
9.10 Use of Proceeds. The Borrower will use the Letters of Credit
----------------
and the proceeds of all Loans for the purposes set forth in the introductory
statement to this Agreement.
9.11 Changes in Business. The Borrower and its Subsidiaries taken as
--------------------
a whole will not fundamentally and substantively alter the character of their
business taken as a whole from the business conducted by the Borrower and its
Subsidiaries taken as a whole on the date hereof and other business activities
incidental or related to any of the foregoing.
SECTION 10. Negative Covenants. The Borrower hereby covenants and
-------------------
agrees that on the Closing Date and thereafter, for so long as this Agreement is
in effect and until the Revolving Credit Commitments, the Swingline Commitment
and each Letter of Credit have terminated and the Loans and Unpaid Drawings,
together with interest, Fees and all other Obligations incurred hereunder, are
paid in full:
10.1 Limitation on Indebtedness; Preferred and Redeemable Interests.
---------------------------------------------------------------
(a) The Borrower will not, and will not permit any of its Subsidiaries to,
create, incur, assume or suffer to exist any Indebtedness, except:
(i) Indebtedness arising under the Credit Documents;
(ii) Indebtedness of (i) the Borrower to any Subsidiary of the
Borrower and (ii) Indebtedness of any Subsidiary to the Borrower or any
other Subsidiary of the Borrower;
(iii) Indebtedness in respect of any bankers' acceptance, letter of
credit, warehouse receipt or similar facilities entered into in the
ordinary course of business;
(iv) except as provided in clauses (ix) and (x) below, Guarantee
Obligations incurred by the Borrower or any Subsidiary Guarantor in respect
of Indebtedness of the Subsidiaries that is permitted to be incurred under
this Agreement;
(v) Guarantee Obligations incurred in the ordinary course of business
in respect of obligations of suppliers, customers, franchisees, lessors and
licensees;
<PAGE>
67
(vi) (A) Indebtedness (including Indebtedness arising under Capital
Leases) incurred within 270 days of the acquisition, construction or
improvement of fixed or capital assets to finance the acquisition,
construction or improvement of such fixed or capital assets and (B)
Indebtedness arising under Capital Leases, other than Capital Leases in
effect on the date hereof and Capital Leases entered into pursuant to
subclause (A) above, provided that the aggregate amount of Indebtedness
--------
incurred pursuant to this subclause (B) that is attributable to Capital
Leases resulting from sale and leaseback transactions shall be deemed to
have been incurred pursuant to clause (xii) below for purposes of
determining compliance with such clause (xii), and (C) any refinancing,
refunding, renewal or extension of any Indebtedness specified in subclause
(A) or (B) above, provided that the principal amount thereof is not
--------
increased above the principal amount thereof outstanding immediately prior
to such refinancing, refunding, renewal or extension;
(vii) the 9.50% Notes and other Indebtedness outstanding on the date
hereof and listed on Schedule 10.1 and any refinancing, refunding, renewal
or extension thereof, provided that (A) the principal amount thereof is not
--------
increased above the principal amount thereof outstanding immediately prior
to such refinancing, refunding, renewal or extension, except to the extent
otherwise permitted hereunder, and (B) the direct and contingent obligors
with respect to such Indebtedness are not changed;
(viii) Indebtedness in respect of Hedge Agreements;
(ix) (A) Indebtedness of a Person or attaching to assets of a Person
that, in either case, becomes a Subsidiary, or Indebtedness attaching to
assets that are acquired by the Borrower or any Subsidiary, in each case
after the Closing Date as the result of a Permitted Acquisition, provided
--------
that (w) such Indebtedness existed at the time such Person became a
Subsidiary or at the time such assets were acquired and, in each case, was
not created in anticipation thereof, (x) such Indebtedness is not
guaranteed in any respect by the Borrower or any Subsidiary (other than any
Person acquired (the "acquired Person") as a result of such Permitted
---------------
Acquisition or any Subsidiary created solely for the purpose of
consummating such Permitted Acquisition), and (y) if the pro forma Senior
Debt Ratio recomputed as at the last day of the most recently ended Test
Period as if such Permitted
<PAGE>
68
Acquisition had occurred on the first day of such Test Period is not less
than 3.25 to 1.0, then the aggregate amount of such Indebtedness and all
Indebtedness incurred under clause (x) below, when taken together, does not
exceed $100,000,000 in the aggregate at any time outstanding, and (B) any
refinancing, refunding, renewal or extension of any Indebtedness specified
in subclause (A) above, provided that, except to the extent otherwise
--------
permitted hereunder, (I) the principal amount of any such Indebtedness is
not increased above the principal amount thereof outstanding immediately
prior to such refinancing, refunding, renewal or extension and (II) the
direct and contingent obligors with respect to such Indebtedness are not
changed;
(x) (A) Indebtedness of the Borrower or any Subsidiary incurred to
finance a Permitted Acquisition, provided that (x) such Indebtedness is not
--------
guaranteed in any respect by any Subsidiary (other than any acquired Person
or any Subsidiary created solely for the purpose of consummating such
Permitted Acquisition) or, in the case of Indebtedness of any Subsidiary,
by the Borrower, and (y) if the pro forma Senior Debt Ratio recomputed as
at the last day of the most recently ended Test Period as if such Permitted
Acquisition had occurred on the first day of such Test Period is not less
than 3.25 to 1.0, then the aggregate amount of such Indebtedness and all
Indebtedness incurred under clause (ix) above, when taken together, does
not exceed $100,000,000 in the aggregate at any time outstanding, and (B)
any refinancing, refunding, renewal or extension of any Indebtedness
specified in subclause (A) above, provided that (I) the principal amount of
--------
any such Indebtedness is not increased above the principal amount thereof
outstanding immediately prior to such refinancing, refunding, renewal or
extension and (II) the direct and contingent obligors with respect to such
Indebtedness are not changed, except to the extent otherwise permitted
hereunder;
(xi) Permitted Subordinated Indebtedness; and
(xii) additional Indebtedness in an aggregate principal amount at any
time outstanding not exceeding the greater of (A) the excess, if any, of
$100,000,000 over the aggregate principal amount of Indebtedness then
outstanding under clauses (ix) and (x) above or (B) $30,000,000.
(b) The Borrower will not permit any of its Subsidiaries (other than
any Subsidiary Guarantors) to
<PAGE>
69
create, incur, assume or suffer to exist any Indebtedness (regardless of whether
such Indebtedness would otherwise be permitted under paragraph (a) of this
Section 10.1), except (i) Indebtedness of Subsidiaries (other than any
Subsidiary Guarantors) permitted under clauses (ii), (iii), (v), (vii), (viii),
(ix) and (x) of paragraph (a) of this Section 10.1, (ii) Indebtedness of
Subsidiaries (other than any Subsidiary Guarantors) permitted under clause (vi)
of paragraph (a) of this Section 10.1 in an aggregate principal amount not
exceeding $15,000,000 at any time outstanding and (iii) Indebtedness of
Subsidiaries (other than any Subsidiary Guarantors) otherwise permitted under
paragraph (a) of this Section 10.1 in an aggregate principal amount not
exceeding $5,000,000 at any time outstanding.
(c) The Borrower will not, and will not permit any of its
Subsidiaries to, create, issue or suffer to exist any Preferred Stock or any
Redeemable Stock, except (i) Preferred Stock issued by the Borrower, (ii)
Redeemable Stock issued by the Borrower or a Subsidiary that is treated as
Indebtedness of the Borrower or such Subsidiary, as the case may be, for
purposes of determining compliance with paragraphs (a) and (b) of this Section
10.1 and (iii) any such Preferred Stock or Redeemable Stock issued by a
Subsidiary that is owned by the Borrower.
10.2 Limitation on Liens. The Borrower will not, and will not permit
--------------------
any of its Subsidiaries to, create, incur, assume or suffer to exist any Lien
upon any property or assets of any kind (real or personal, tangible or
intangible) of the Borrower or any Subsidiary, whether now owned or hereafter
acquired, except:
(a) Liens arising under the Credit Documents;
(b) Permitted Liens;
(c) Liens securing Indebtedness permitted pursuant to Section
10.1(a)(vi), provided that such Liens attach at all times only to the
--------
assets so financed;
(d) Liens existing on the date hereof;
(e) Liens existing on the assets of any Person that becomes a
Subsidiary, or existing on assets acquired, pursuant to a Permitted
Acquisition to the extent the Liens on such assets secure Indebtedness
permitted by Section 10.1(a)(ix), provided that such Liens attach at all
--------
times only to the same assets that such Liens attached to, and secure only
the same
<PAGE>
70
Indebtedness that such Liens secured, immediately prior to such Permitted
Acquisition;
(f) (i) Liens placed upon the capital stock of any Subsidiary acquired
pursuant to a Permitted Acquisition to secure Indebtedness of the Borrower
or any other Subsidiary incurred pursuant to Section 10.1(a)(x) in
connection with such Permitted Acquisition, (ii) Liens placed upon the
assets of such Subsidiary to secure a guarantee by such Subsidiary of any
such Indebtedness of the Borrower or any other Subsidiary and (iii) Liens
placed upon the capital stock or assets of any Subsidiary to secure
Indebtedness of such Subsidiary incurred pursuant to Section 10.1(a)(x) in
connection with any Permitted Acquisition;
(g) the replacement, extension or renewal of any Lien permitted by
clauses (a) through (f) above upon or in the same assets theretofore
subject to such Lien or the replacement, extension or renewal (without
increase in the amount or change in any direct or contingent obligor) of
the Indebtedness secured thereby; and
(h) additional Liens so long as the aggregate principal amount of the
obligations so secured does not exceed $25,000,000 at any time outstanding.
10.3 Limitation on Fundamental Changes. Except as expressly
----------------------------------
permitted by Section 10.4 or 10.5, the Borrower will not, and will not permit
any of its Subsidiaries to, enter into any merger, consolidation or
amalgamation, or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution), or convey, sell, lease, assign, transfer or
otherwise dispose of, all or substantially all its business units, assets or
other properties, except that:
(a) any Subsidiary of the Borrower or any other Person may be merged
or consolidated with or into the Borrower, provided that (i) the Borrower
--------
shall be the continuing or surviving entity or the Person formed by or
surviving any such merger or consolidation (if other than the Borrower)
shall be a limited partnership organized or existing under the laws of the
United States, any state thereof, the District of Columbia or any territory
thereof (the Borrower or such Person, as the case may be, being herein
referred to as the "Successor Borrower"), (ii) the Successor Borrower (if
------------------
other than the Borrower) shall expressly assume all the obligations of the
Borrower under this Agreement and the other Credit Documents pursuant to a
supplement hereto or thereto in form reasonably satisfactory to
<PAGE>
71
the Administrative Agent, (iii) no Default or Event of Default would result
from the consummation of such merger or consolidation, (iv) the Successor
Borrower shall be in compliance, on a pro forma basis after giving effect
to such merger or consolidation, with the covenants set forth in Sections
10.8 and 10.9 as such covenants are recomputed as at the last day of the
most recently ended Test Period under such Section as if such merger or
consolidation had occurred on the first day of such Test Period, and (v)
the Borrower shall have delivered to the Administrative Agent an officer's
certificate and an opinion of counsel, each stating that such merger or
consolidation comply with this Agreement, provided further that if the
----------------
foregoing are satisfied, the Successor Borrower (if other than the
Borrower) will succeed to, and be substituted for, the Borrower under this
Agreement;
(b) any Subsidiary of the Borrower or any other Person may be merged
or consolidated with or into any one or more Subsidiaries of the Borrower,
provided that (i) no Default or Event of Default would result from the
--------
consummation of such merger or consolidation, (ii) the Borrower shall be in
compliance, on a pro forma basis after giving effect to such merger or
consolidation, with the covenants set forth in Sections 10.8 and 10.9, as
such covenants are recomputed as at the last day of the most recently ended
Test Period under such Section as if such merger or consolidation had
occurred on the first day of such Test Period, and (iii) the Borrower shall
have delivered to the Administrative Agent an Officers' Certificate stating
that such merger or consolidation comply with this Agreement; and
(c) any Subsidiary may sell, lease, transfer or otherwise dispose of
any or all of its assets (upon voluntary liquidation or otherwise) to the
Borrower, or any other Subsidiary of the Borrower.
10.4 Limitation on Sale of Assets. The Borrower will not, and will
-----------------------------
not permit any of its Subsidiaries to, (i) convey, sell, lease, assign, transfer
or otherwise dispose of any of its property, business or assets (including,
without limitation, receivables and leasehold interests), whether now owned or
hereafter acquired (other than any such sale, transfer, assignment or other
disposition resulting from any casualty or condemnation of any assets of the
Borrower or its Subsidiaries) or (ii) sell
<PAGE>
72
any shares owned by it of any Subsidiary's capital stock to any Person other
than the Borrower, except that:
(a) the Borrower and its Subsidiaries may sell, transfer or otherwise
dispose of used or surplus equipment, vehicles, inventory and other assets
in the ordinary course of business;
(b) the Borrower and its Subsidiaries may sell, transfer or otherwise
dispose of other assets for fair value, provided that (i) after giving
--------
effect to such sale, transfer or disposition, the aggregate amount of all
such sales, transfers and disposals by the Borrower and its Subsidiaries
taken as a whole pursuant to this clause (b) during the term of this
Agreement (excluding sales, transfers and dispositions that are to be
disregarded pursuant to the proviso appearing at the end of this clause
(b)) shall not in the aggregate exceed an amount equal to 10% of the
consolidated total assets of the Borrower and its Subsidiaries as of the
end of the most recent Test Period for which financial statements have been
delivered pursuant to Section 9.1, (ii) with respect to any such sale,
transfer or disposition (or series of related sales, transfers or
dispositions) in an aggregate amount in excess of $10,000,000, the Borrower
shall be in compliance, on a pro forma basis after giving effect to such
sale, transfer or disposition, with the covenants set forth in Sections
10.8 and 10.9 as such covenants are recomputed as at the last day of the
most recently ended Test Period under such Sections as if such sale,
transfer or disposition had occurred on the first day of such Test Period,
and (iii) after giving effect to any such sale, transfer or disposition, no
Default or Event of Default shall have occurred and be continuing; provided
--------
further that the Borrower and its Subsidiaries may sell, transfer or
-------
otherwise dispose of assets in excess of the amount otherwise permitted by
clause (i) above if prior to consummation of such sale, transfer or
disposition the Borrower shall certify to the Administrative Agent that the
net cash proceeds from such sale, transfer or disposition will be applied
within 180 days after the date of such sale, transfer or disposition to
acquire assets (or to make improvements to existing assets) to be used in
the business of the Borrower and its Subsidiaries and, provided that such
net cash proceeds are so applied, such sale, transfer or disposition shall
be disregarded for purposes of determining compliance with clause (i)
above;
<PAGE>
73
(c) the Borrower and its Subsidiaries may make sales of assets to the
Borrower or to any Subsidiary;
(d) any Subsidiary may effect any transaction permitted by Section
10.3; and
(e) in addition to selling or transferring accounts receivable
pursuant to the other provisions hereof, the Borrower and its Subsidiaries
may sell or discount without recourse accounts receivable arising in the
ordinary course of business in connection with the compromise or collection
thereof.
10.5 Limitation on Investments. The Borrower will not, and will not
--------------------------
permit any of its Subsidiaries to, make any advance, loan, extensions of credit
or capital contribution to, or purchase any stock, bonds, notes, debentures or
other securities of or any assets of, or make any other investment in, any
Person, except:
(a) extensions of trade credit and asset purchases in the ordinary
course of business;
(b) Permitted Investments;
(c) loans and advances to officers, directors and employees of the
Borrower or any of its Subsidiaries (i) to finance the purchase of limited
partnership interests of the Borrower and (ii) for additional purposes not
contemplated by subclause (i) above in an aggregate principal amount at any
time outstanding with respect to this clause (ii) not exceeding $1,000,000;
(d) investments existing on the date hereof and any extensions,
renewals or reinvestments thereof, so long as the aggregate amount of all
investments pursuant to this clause (d) is not increased at any time above
the amount of such investments existing on the date hereof;
(e) investments in Hedge Agreements permitted by Section
10.1(a)(viii);
(f) investments received in connection with the bankruptcy or
reorganization of suppliers or customers and in settlement of delinquent
obligations of, and other disputes with, customers arising in the ordinary
course of business;
<PAGE>
74
(g) investments to the extent that payment for such investments is
made solely with limited partnership interests in the Borrower;
(h) investments constituting non-cash proceeds of sales, transfers and
other dispositions of assets to the extent permitted by Section 10.4;
(i) investments constituting Permitted Acquisitions;
(j) investments in Subsidiary Guarantors; and
(k) additional investments in an aggregate amount at the time of such
investment not in excess of $25,000,000.
10.6 Limitation on Restricted Payments. (a) The Borrower will not
----------------------------------
directly or indirectly, (i) declare or pay any partnership distributions or
dividends (other than partnership distributions or dividends payable solely in
its Capital Stock or rights, warrants or options to purchase its Capital Stock)
or return any capital to its partners or stockholders or make any other
distribution, payment or delivery of property or cash to its partners or
stockholders as such, or (ii) redeem, retire, purchase or otherwise acquire,
directly or indirectly, for consideration, any partnership interests or shares
of any class of its Capital Stock or the Capital Stock of any direct or indirect
parent of the Borrower now or hereafter outstanding (or any warrants for or
options or stock appreciation rights in respect of any of such partnership
interests or shares), or (iii) permit any of its Subsidiaries to purchase or
otherwise acquire for consideration (other than in connection with an investment
permitted by Section 10.5) any partnership interests or shares of any class of
the Capital Stock of the Borrower, now or hereafter outstanding (or any options
or warrants or stock appreciation rights issued by such Person with respect to
its Capital Stock), or (iv) repay, prepay, redeem, retire, defease, purchase or
otherwise acquire, directly or indirectly, for consideration (other than
scheduled repayments as and when due and not otherwise prohibited by applicable
subordination provisions) any Permitted Subordinated Indebtedness (or permit any
of its Subsidiaries to do any of the foregoing), or (v) set aside any funds for
any of the foregoing purposes (all of
<PAGE>
75
the foregoing "Restricted Payments") unless, at the time of such Restricted
-------------------
Payment and after giving effect thereto:
(A) no Default or Event of Default shall have occurred and be
continuing;
(B) so long as such restrictions remain in the Note Indenture, (i)
the Consolidated EBITDA Coverage Ratio (as such term is defined in the Note
Indenture) exceeds 3.0 to 1.0 and (ii) Consolidated Total Debt (as such
term is defined in the Note Indenture) does not exceed 60% of Consolidated
Net Tangible Assets (as such term is defined in the Note Indenture) on a
pro forma basis as of the end of the most recently completed fiscal quarter
ending at least 45 days prior to the date on which such Restricted Payment
is made; and
(C) from and after such time as the restrictions set forth in clause
(B) above are no longer in the Note Indenture, the Consolidated EBITDA
Coverage Ratio (as defined herein) exceeds 2.75 to 1.0.
(b) The provisions of this Section shall not prohibit:
(i) any purchase, redemption, repurchase, defeasance, other
acquisition or retirement (a "purchase or redemption") of Capital Stock or
Permitted Subordinated Indebtedness of the Borrower made by exchange for,
or out of the proceeds of the substantially concurrent sale (other than to
a Subsidiary) of, Capital Stock of the Borrower (other than Disqualified
Capital Stock);
(ii) any purchase or redemption of Permitted Subordinated
Indebtedness of the Borrower made by exchange of, or out of the proceeds of
the substantially concurrent sale (other than to a Subsidiary) of,
Permitted Subordinated Indebtedness of the Borrower; and
(iii) partnership distributions or dividends paid within 60 days
after the date of declaration thereof if at such date of declaration such
partnership distribution dividend would have complied with this provision;
provided, however, that at the time of payment of such partnership
-------- -------
distribution dividend, no further Default or Event of Default shall have
occurred and be continuing (or would result therefrom); provided further,
----------------
however, that such partnership distribution dividend shall be included
-------
(when paid, but not
<PAGE>
76
declared) in the calculation of the amount of Restricted Payments.
10.7 Limitations on Certain Amendments. The Borrower will not waive,
----------------------------------
amend, modify, terminate or release the Note Indenture or any indenture or other
agreement or instrument governing or evidencing any Permitted Subordinated
Indebtedness, to the extent that any such waiver, amendment, supplement,
modification, termination or release would be adverse to the Lenders in any
material respect.
10.8 Consolidated Total Debt to Consolidated EBITDA Ratio. The
-----------------------------------------------------
Borrower will not permit the Consolidated Total Debt to Consolidated EBITDA
Ratio on the last day of any fiscal quarter of the Borrower to exceed 4.00 to
1.00.
10.9 Consolidated EBITDA Coverage Ratio. The Borrower will not
-----------------------------------
permit the Consolidated EBITDA Coverage Ratio to be less than 2.50 to 1.00 for
any Test Period.
SECTION 11. Events of Default. Upon the occurrence of any of the
------------------
following specified events (each an "Event of Default"):
----------------
11.1 Payments. The Borrower shall (a) default in the payment when
---------
due of any principal of the Loans or (b) default, and such default shall
continue for five or more days, in the payment when due of any interest on the
Loans or any Fees or any Unpaid Drawings or of any other amounts owing hereunder
or under any other Credit Document; or
11.2 Representations, etc. Any representation, warranty or statement
---------------------
made or deemed made by the Borrower herein or in any certificate delivered or
required to be delivered pursuant hereto shall prove to be untrue in any
material respect on the date as of which made or deemed made; or
11.3 Covenants. The Borrower shall (a) default in the due
----------
performance or observance by it of any term, covenant or agreement contained in
Section 9.1(d) or Section 10 or (b) default in the due performance or observance
by it of any term, covenant or agreement (other than those referred to in
Section 11.1 or 11.2 or clause (a) of this Section 11.3) contained in this
Agreement and such default shall continue unremedied for a period of at least 30
days after receipt of written notice by the Borrower from the Administrative
Agent or the Required Lenders; or
<PAGE>
77
11.4 Default Under Other Agreements. (a) The Borrower or any of its
-------------------------------
Subsidiaries shall (i) default in any payment with respect to any Indebtedness
(other than the Obligations) in excess of $20,000,000 in the aggregate, for the
Borrower and such Subsidiaries, beyond the period of grace, if any, provided in
the instrument or agreement under which such Indebtedness was created or (ii)
default in the observance or performance of any agreement or condition relating
to any such Indebtedness or contained in any instrument or agreement evidencing,
securing or relating thereto, or (except in the case of Indebtedness consisting
of any Hedge Agreement) any other event shall occur or condition exist, the
effect of which default or other event or condition is to cause, or to permit
the holder or holders of such Indebtedness (or a trustee or agent on behalf of
such holder or holders) to cause, any such Indebtedness to become due prior to
its stated maturity; or (b) without limiting the provisions of clause (a) above,
any such Indebtedness (other than Indebtedness consisting of any Hedge
Agreement) shall be declared to be due and payable, or required to be prepaid
other than by a regularly scheduled required prepayment or as a mandatory
prepayment, prior to the stated maturity thereof; or
11.5 Bankruptcy, etc. The Borrower or any Subsidiary shall commence
----------------
a voluntary case concerning itself under Title 11 of the United States Code
entitled "Bankruptcy," as now or hereafter in effect, or any successor thereto
(the "Bankruptcy Code"); or an involuntary case is commenced against the
---------------
Borrower or any Subsidiary and the petition is not controverted within 10 days
after commencement of the case; or an involuntary case is commenced against the
Borrower or any Subsidiary and the petition is not dismissed within 60 days
after commencement of the case; or a custodian (as defined in the Bankruptcy
Code) is appointed for, or takes charge of, all or substantially all of the
property of the Borrower or any Subsidiary; or the Borrower or any Subsidiary
commences any other proceeding under any reorganization, arrangement, adjustment
of debt, relief of debtors, dissolution, insolvency or liquidation or similar
law of any jurisdiction whether now or hereafter in effect relating to the
Borrower or any Subsidiary; or there is commenced against the Borrower or any
Subsidiary any such proceeding that remains undismissed for a period of 60 days;
or the Borrower or any Subsidiary is adjudicated insolvent or bankrupt; or any
order of relief or other order approving any such case or proceeding is entered;
or the Borrower or any Subsidiary suffers any appointment of any custodian or
the like for it or any substantial part of its property to continue undischarged
or unstayed for a period of 60 days; or the
<PAGE>
78
Borrower or any Subsidiary makes a general assignment for the benefit of
creditors; or any corporate action is taken by the Borrower or any Subsidiary
for the purpose of effecting any of the foregoing; or
11.6 ERISA. (a) Any Plan shall fail to satisfy the minimum funding
------
standard required for any plan year or part thereof or a waiver of such standard
or extension of any amortization period is sought or granted under Section 412
of the Code; any Plan is or shall have been terminated or is the subject of
termination proceedings under ERISA (including the giving of written notice
thereof); an event shall have occurred or a condition shall exist in either case
entitling the PBGC to terminate any Plan or to appoint a trustee to administer
any Plan (including the giving of written notice thereof); any Plan shall have
an accumulated funding deficiency (whether or not waived); the Borrower or any
Subsidiary or any ERISA Affiliate has incurred or is likely to incur a liability
to or on account of a Plan under Section 409, 502(i), 502(l), 515, 4062, 4063,
4064, 4069, 4201 or 4204 of ERISA or Section 4971 or 4975 of the Code (including
the giving of written notice thereof); (b) there could result from any event or
events set forth in clause (a) of this Section 11.6 the imposition of a lien,
the granting of a security interest, or a liability, or the reasonable
likelihood of incurring a lien, security interest or liability; and (c) such
lien, security interest or liability will or would be reasonably likely to have
a Material Adverse Effect; or
11.7 Judgments. One or more judgments or decrees shall be entered
----------
against the Borrower or any of its Subsidiaries involving a liability of
$20,000,000 or more in the aggregate for all such judgments and decrees for the
Borrower and its Subsidiaries (to the extent not paid or fully covered by
insurance provided by a carrier not disputing coverage) and any such judgments
or decrees shall not have been satisfied, vacated, discharged or stayed or
bonded pending appeal within 60 days from the entry thereof; or
11.8 Change of Control. A Change of Control shall occur;
------------------
then, and in any such event, and at any time thereafter, if any Event of Default
shall then be continuing, the Administrative Agent shall, upon the written
request of the Required Lenders, by written notice to the Borrower, take any or
all of the following actions, without prejudice to the rights of the
Administrative Agent or any Lender to enforce its claims against the Borrower,
except as otherwise
<PAGE>
79
specifically provided for in this Agreement (provided that, if an Event of
--------
Default specified in Section 11.5 shall occur with respect to the Borrower, the
result that would occur upon the giving of written notice by the Administrative
Agent as specified in clauses (i), (ii) and (iv) below shall occur automatically
without the giving of any such notice): (i) declare the Total Revolving Credit
Commitment terminated, whereupon the Revolving Credit Commitment and Swingline
Commitment, if any, of each Lender or Chase, as the case may be, shall forthwith
terminate immediately and any Fees theretofore accrued shall forthwith become
due and payable without any other notice of any kind; (ii) declare the principal
of and any accrued interest in respect of all Loans and all Obligations owing
hereunder to be, whereupon the same shall become, forthwith due and payable
without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by the Borrower; (iii) terminate any Letter of Credit that may
be terminated in accordance with its terms; and/or (iv) direct the Borrower to
pay (and the Borrower agrees that upon receipt of such notice, or upon the
occurrence of an Event of Default specified in Section 11.5 with respect to the
Borrower, it will pay) to the Administrative Agent at the Administrative Agent's
Office such additional amounts of cash, to be held as security for the
Borrower's reimbursement obligations for Drawings that may subsequently occur
thereunder, equal to the aggregate Stated Amount of all Letters of Credit issued
and then outstanding.
SECTION 12. The Administrative Agent.
-------------------------
12.1 Appointment. Each Lender hereby irrevocably designates and
------------
appoints the Administrative Agent as the agent of such Lender under this
Agreement, and each such Lender irrevocably authorizes the Administrative Agent,
in such capacity, to take such action on its behalf under the provisions of this
Agreement and to exercise such powers and perform such duties as are expressly
delegated to the Administrative Agent by the terms of this Agreement, together
with such other powers as are reasonably incidental thereto. Notwithstanding
any provision to the contrary elsewhere in this Agreement, the Administrative
Agent shall not have any duties or responsibilities, except those expressly set
forth herein, or any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Agreement or otherwise exist against the Administrative Agent.
<PAGE>
80
12.2 Delegation of Duties. The Administrative Agent may execute any
---------------------
of its duties under this Agreement by or through agents or attorneys-in-fact and
shall be entitled to advice of counsel concerning all matters pertaining to such
duties. The Administrative Agent shall not be responsible for the negligence or
misconduct of any agents or attorneys in-fact selected by it with reasonable
care.
12.3 Exculpatory Provisions. Neither the Administrative Agent nor
-----------------------
any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates shall be (a) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or any
other Credit Document (except for its or such Person's own gross negligence or
willful misconduct) or (b) responsible in any manner to any of the Lenders for
any recitals, statements, representations or warranties made by the Borrower or
any officer thereof contained in this Agreement or in any certificate, report,
statement or other document referred to or provided for in, or received by the
Administrative Agent under or in connection with, this Agreement or any other
Credit Document or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Credit Document or
for any failure of the Borrower to perform its obligations hereunder or
thereunder. The Administrative Agent shall not be under any obligation to any
Lender to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Agreement or any other
Credit Document, or to inspect the properties, books or records of the Borrower.
12.4 Reliance by Administrative Agent. The Administrative Agent
---------------------------------
shall be entitled to rely, and shall be fully protected in relying, upon any
writing, resolution, notice, consent, certificate, affidavit, letter, telecopy,
telex or teletype message, statement, order or other document or conversation
believed by it to be genuine and correct and to have been signed, sent or made
by the proper Person or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to the Borrower), independent
accountants and other experts selected by the Administrative Agent. The
Administrative Agent may deem and treat the Lender specified in the Register
with respect to any amount owing hereunder as the owner thereof for all purposes
unless a written notice of assignment, negotiation or transfer thereof shall
have been filed with the Administrative Agent. The Administrative Agent shall be
fully justified in failing or refusing to take any action under this Agreement
unless it shall first receive such advice or concurrence of the Required Lenders
<PAGE>
81
as it deems appropriate or it shall first be indemnified to its satisfaction by
the Lenders against any and all liability and expense that may be incurred by it
by reason of taking or continuing to take any such action. The Administrative
Agent shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement in accordance with a request of the Required
Lenders, and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Lenders and all future holders of the
Loans.
12.5 Notice of Default. The Administrative Agent shall not be deemed
------------------
to have knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Administrative Agent has received notice from a Lender or
the Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". In the event
that the Administrative Agent receives such a notice, the Administrative Agent
shall give notice thereof to the Lenders. The Administrative Agent shall take
such action with respect to such Default or Event of Default as shall be
reasonably 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 or Event of Default as it shall
deem advisable in the best interests of the Lenders (except to the extent that
this Agreement requires that such action be taken only with the approval of the
Required Lenders or each of the Lenders, as applicable).
12.6 Non-Reliance on Administrative Agent and Other Lenders. Each
-------------------------------------------------------
Lender expressly acknowledges that neither the Administrative Agent nor any of
its officers, directors, employees, agents, attorneys-in-fact or Affiliates has
made any representations or warranties to it and that no act by the
Administrative Agent hereinafter taken, including any review of the affairs of
the Borrower, shall be deemed to constitute any representation or warranty by
the Administrative Agent to any Lender. Each Lender represents to the
Administrative Agent that it has, independently and without reliance upon the
Administrative Agent or any other
<PAGE>
82
Lender, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
operations, property, financial and other condition and creditworthiness of the
Borrower and made its own decision to make its Loans hereunder and enter into
this Agreement. Each Lender also represents 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 credit analysis, appraisals and decisions in taking or
not taking action under this Agreement and the other Credit Documents, and to
make such investigation as it deems necessary to inform itself as to the
business, operations, property, financial and other condition and
creditworthiness of the Borrower. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent shall not have any duty
or responsibility to provide any Lender with any credit or other information
concerning the business, assets, operations, properties, financial condition,
prospects or creditworthiness of the Borrower that may come into the possession
of the Administrative Agent or any of its officers, directors, employees,
agents, attorneys-in-fact or Affiliates.
12.7 Indemnification. The Lenders agree to indemnify the
----------------
Administrative Agent in its capacity as such (to the extent not reimbursed by
the Borrower and without limiting the obligation of the Borrower to do so),
ratably according to their respective portions of the Total Revolving Credit
Commitment in effect on the date on which indemnification is sought (or, if
indemnification is sought after the date upon which the Revolving Credit
Commitments shall have terminated and the Loans shall have been paid in full,
ratably in accordance with their respective portions of the Total Revolving
Credit Commitment in effect immediately prior to such date), from and against
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind whatsoever that
may at any time (including, without limitation, at any time following the
payment of the Loans) be imposed on, incurred by or asserted against the
Administrative Agent in any way relating to or arising out of, the Revolving
Credit Commitments, this Agreement, any of the other Credit Documents or any
documents contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by the
Administrative Agent under or in connection with any of the foregoing, provided
--------
that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the Administrative Agent's gross
negligence or willful misconduct. The agreements in this Section 12.7 shall
survive the payment of the Loans and all other amounts payable hereunder.
<PAGE>
83
12.8 Administrative Agent in Its Individual Capacity. The
------------------------------------------------
Administrative Agent and its Affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Borrower as though the
Administrative Agent were not the Administrative Agent hereunder. With respect
to the Loans made by it, the Administrative Agent shall have the same rights and
powers under this Agreement as any Lender and may exercise the same as though it
were not the Administrative Agent, and the terms "Lender" and "Lenders" shall
include the Administrative Agent in its individual capacity.
12.9 Successor Agent. The Administrative Agent may resign as
----------------
Administrative Agent upon 20 days' prior written notice to the Lenders and the
Borrower. If the Administrative Agent shall resign as Administrative Agent
under this Agreement, then the Required Lenders shall appoint from among the
Lenders a successor agent for the Lenders, which successor agent shall be
approved by the Borrower (which approval shall not be unreasonably withheld),
whereupon such successor agent shall succeed to the rights, powers and duties of
the Administrative Agent, and the term "Administrative Agent" shall mean such
successor agent effective upon such appointment and approval, and the former
Administrative Agent's rights, powers and duties as Administrative Agent shall
be terminated, without any other or further act or deed on the part of such
former Administrative Agent or any of the parties to this Agreement or any
holders of the Loans. After any retiring Administrative Agent's resignation as
Administrative Agent, the provisions of this Section 12 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement.
SECTION 13. Miscellaneous.
--------------
13.1 Amendments and Waivers. Neither this Agreement nor any other
-----------------------
Credit Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this Section 13.1. The
Required Lenders may, or, with the written consent of the Required Lenders, the
Administrative Agent may, from time to time, (a) enter into with the Borrower
written amendments, supplements or modifications hereto and to the other Credit
Documents for the purpose of adding any provisions to this Agreement or the
other Credit Documents or changing in any manner the rights of the Lenders or of
the Borrower hereunder or thereunder or (b) waive, on such terms and conditions
as the Required Lenders or the
<PAGE>
84
Administrative Agent, as the case may be, may specify in such instrument, any of
the requirements of this Agreement or the other Credit Documents or any Default
or Event of Default and its consequences; provided, however, that no such waiver
-------- -------
and no such amendment, supplement or modification shall directly (i) forgive any
portion of any Loan or extend the final scheduled maturity date of any Loan or
reduce the stated rate, or forgive any portion, or extend the date for the
payment, of any interest or fee payable hereunder (other than as a result of
waiving the applicability of any post-default increase in interest rates) or
extend the final expiration date of any Lender's Revolving Credit Commitment or
extend the final expiration date of any Letter of Credit beyond the L/C Maturity
Date or increase the aggregate amount of the Revolving Credit Commitment of any
Lender, in each case without the written consent of each Lender directly and
adversely affected thereby, or (ii) amend, modify or waive any provision of this
Section 13.1 or reduce the percentages specified in the definition of the term
"Required Lenders", or consent to the assignment or transfer by the Borrower of
its rights and obligations under any Credit Document (except as permitted
pursuant to Section 10.3), in each case without the written consent of each
Lender directly and adversely affected thereby, or (iii) amend, modify or waive
any provision of Section 12 without the written consent of the then-current
Administrative Agent, or (iv) amend, modify or waive any provision of Section 3
without the written consent of the Letter of Credit Issuer, or (v) amend, modify
or waive any provisions hereof relating to Swingline Loans without the written
consent of Chase. Any such waiver and any such amendment, supplement or
modification shall apply equally to each of the affected Lenders and shall be
binding upon the Borrower, such Lenders, the Administrative Agent and all future
holders of the affected Loans. In the case of any waiver, the Borrower, the
Lenders and the Administrative Agent shall be restored to their former positions
and rights hereunder and under the other Credit Documents, and any Default or
Event of Default waived shall be deemed to be cured and not continuing, it being
understood that no such waiver shall extend to any subsequent or other Default
or Event of Default or impair any right consequent thereon.
13.2 Notices. All notices, requests and demands to or upon the
--------
respective parties hereto to be effective shall be in writing (including by
facsimile transmission), and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made when delivered, or three days after
being deposited in the mail, postage prepaid, or, in the case of telecopy
notice, when received, addressed as follows in the case of the Borrower and the
<PAGE>
85
Administrative Agent, and as set forth on Schedule 1.1 in the case of the other
parties hereto, or to such other address as may be hereafter notified by the
respective parties hereto:
The Borrower: Borden Chemicals and Plastics
Operating Limited Partnership
Highways 73 and 30
Geismaer, LA 70734
Attention: Chris Nagel
Fax: (504) 673-0672
The Administrative Agent: The Chase Manhattan Bank
c/o Loan and Agency Services Group
One Chase Manhattan Plaza,
Eighth Floor
New York, NY 10081
Attention: Sandra Miklave
Fax: (212) 552-5658
with a copy to:
The Chase Manhattan Bank
707 Travis Street
Houston, TX 77002
Attention: David Mills
Fax: (713) 216-6387
provided that any notice, request or demand to or upon the Administrative Agent
- --------
or the Lenders pursuant to Sections 2.3, 2.6, 2.9, 4.2 and 5.1 shall not be
effective until received.
13.3 No Waiver; Cumulative Remedies. No failure to exercise and no
-------------------------------
delay in exercising, on the part of the Administrative Agent or any Lender, any
right, remedy, power or privilege hereunder or under the other Credit Documents
shall operate as a waiver thereof, nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and
not exclusive of any rights, remedies, powers and privileges provided by law.
13.4 Survival of Representations and Warranties. All representations
-------------------------------------------
and warranties made hereunder and in any document, certificate or statement
delivered pursuant hereto
<PAGE>
86
or in connection herewith shall survive the execution and delivery of this
Agreement and the making of the Loans hereunder.
13.5 Payment of Expenses and Taxes. The Borrower agrees (a) to pay
------------------------------
or reimburse the Administrative Agent for all its reasonable out-of-pocket costs
and expenses incurred in connection with the development, preparation and
execution of, and any amendment, supplement or modification to, this Agreement
and the other Credit Documents and any other documents prepared in connection
herewith or therewith, and the consummation and administration of the
transactions contemplated hereby and thereby, including, without limitation, the
reasonable fees, disbursements and other charges of counsel to the
Administrative Agent, (b) to pay or reimburse each Lender and the Administrative
Agent for all its reasonable and documented costs and expenses incurred in
connection with the enforcement or preservation of any rights under this
Agreement, the other Credit Documents and any such other documents, including,
without limitation, the reasonable fees, disbursements and other charges of
counsel to each Lender and of counsel to the Administrative Agent, (c) to pay,
indemnify, and hold harmless each Lender and the Administrative Agent from, any
and all recording and filing fees and any and all liabilities with respect to,
or resulting from any delay in paying, stamp, excise and other similar taxes, if
any, that may be payable or determined to be payable in connection with the
execution and delivery of, or consummation or administration of any of the
transactions contemplated by, or any amendment, supplement or modification of,
or any waiver or consent under or in respect of, this Agreement, the other
Credit Documents and any such other documents, and (d) to pay, indemnify, and
hold harmless each Lender and the Administrative Agent and their respective
directors, officers, employees, trustees and agents from and against any and all
other liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever,
including, without limitation, reasonable and documented fees, disbursements and
other charges of counsel, with respect to the execution, delivery, enforcement,
performance and administration of this Agreement, the other Credit Documents and
any such other documents, including, without limitation, any of the foregoing
relating to the violation of, noncompliance with or liability under, any
Environmental Law applicable to the operations of the Borrower, any of its
Subsidiaries or any of the Properties (all the foregoing in this clause (d),
collectively, the "indemnified liabilities"), provided that the Borrower shall
----------------------- --------
have no obligation hereunder to the Administrative Agent or any
<PAGE>
87
Lender nor any of their respective directors, officers, employees and agents
with respect to indemnified liabilities arising from (i) the gross negligence or
willful misconduct of the party to be indemnified or (ii) disputes among the
Administrative Agent, the Lenders and/or their transferees. The agreements in
this Section 13.5 shall survive repayment of the Loans and all other amounts
payable hereunder.
13.6 Successors and Assigns; Participations and Assignments. (a) (i)
-------------------------------------------------------
This Agreement shall be binding upon and inure to the benefit of the Borrower,
the Lenders, the Administrative Agent and their respective successors and
assigns, except that the Borrower may not assign or transfer any of its rights
or obligations under this Agreement without the prior written consent of each
Lender.
(ii) Any Lender may, in the ordinary course of its business and in
accordance with applicable law, at any time sell to one or more banks or other
entities ("Participants") participating interests in any Loan owing to such
------------
Lender, any Revolving Credit Commitment of such Lender or any other interest of
such Lender hereunder and under the other Credit Documents (including to loan
derivative counterparties in respect of swaps or similar arrangements having the
practical or economic effect thereof). In the event of any such sale by a
Lender of a participating interest to a Participant, such Lender's obligations
under this Agreement to the other parties to this Agreement shall remain
unchanged, such Lender shall remain solely responsible for the performance
thereof, such Lender shall remain the holder of any such Loan for all purposes
under this Agreement and the other Credit Documents, and the Borrower and the
Administrative Agent shall continue to deal solely and directly with such Lender
in connection with such Lender's rights and obligations under this Agreement and
the other Credit Documents. In no event shall any Participant under any such
participation have any right to approve any amendment or waiver of any provision
of any Credit Document, or any consent to any departure by the Borrower
therefrom, except to the extent that such amendment, waiver or consent would
directly forgive any principal of any Loan or reduce the stated rate, or forgive
any portion, or postpone the date for the payment, of any interest or fee
payable hereunder (other than as a result of waiving the applicability of any
post-default increase in interest rates), or increase the aggregate amount of
the Revolving Credit Commitment of any Lender or postpone the date of the final
scheduled maturity of any Loan, in each case to the extent subject to such
participation. The Borrower agrees that if amounts outstanding under this
Agreement are due or unpaid, or shall
<PAGE>
88
have been declared or shall have become due and payable upon the occurrence of
an Event of Default, each Participant shall, to the maximum extent permitted by
applicable law, be deemed to have the right of setoff in respect of its
participating interest in amounts owing under this Agreement to the same extent
as if the amount of its participating interest were owing directly to it as a
Lender under this Agreement, provided that, in purchasing such participating
--------
interest, such Participant shall be deemed to have agreed to share with the
Lenders the proceeds thereof as provided in Section 13.8 as fully as if it were
a Lender hereunder. The Borrower also agrees that each Participant shall be
entitled to the benefits of Sections 2.10 and 2.11 with respect to its
participation in the Revolving Credit Commitments and the Loans outstanding from
time to time as if it were a Lender, provided that no Participant shall be
--------
entitled to receive any greater amount pursuant to any such Section 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.
(iii) Any Lender may, in the ordinary course of its
business and in accordance with applicable law, at any time and from time to
time assign to any Lender or any Affiliate (with the consent of the Borrower if
any increased costs would result therefrom) thereof or, with the consent of the
Borrower and the Administrative Agent (which in each case shall not be
unreasonably withheld, it being understood that, without limitation, the
Borrower shall have the right to withhold its consent to any assignment if, in
order for such assignment to comply with applicable law, the Borrower would be
required to obtain the consent of, or make any filing or registration with, any
Governmental Authority), to an additional bank or fund that is regularly engaged
in making, purchasing or investing in loans or securities or financial
institution (an "Assignee") all or any part of its rights and obligations under
--------
this Agreement and the other Credit Documents pursuant to an Assignment and
Acceptance, substantially in the form of Exhibit D, executed by such Assignee,
such assigning Lender (and, in the case of an Assignee that is not then a Lender
or an Affiliate thereof, by the Borrower and the Administrative Agent) and
delivered to the Administrative Agent for its acceptance and recording in the
Register, provided that, except in the case of an assignment of all of a
--------
Lender's interests under this Agreement, unless otherwise agreed to by the
Borrower and the Administrative Agent, no such assignment to an Assignee (other
than any Lender or any Affiliate thereof) shall be in an aggregate principal
amount of less than $5,000,000. Upon such execution, delivery, acceptance and
recording, from and
<PAGE>
89
after the effective date determined pursuant to such Assignment and Acceptance,
(x) the Assignee thereunder shall be a party hereto and, to the extent provided
in such Assignment and Acceptance, have the rights and obligations of a Lender
hereunder with a Revolving Credit Commitment as set forth therein and (y) the
assigning Lender thereunder shall, to the extent provided in such Assignment and
Acceptance, be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all or the remaining portion of an
assigning Lender's rights and obligations under this Agreement, such assigning
Lender shall cease to be a party hereto). Notwithstanding any provision of this
Agreement to the contrary, the consent of the Borrower shall not be required for
any assignment that occurs at any time when any of the events described in
Section 11.5 shall have occurred and be continuing with respect to the Borrower.
(b) Nothing herein shall prohibit any Lender from pledging or
assigning all or any portion of its Loans to any Federal Reserve Bank in
accordance with applicable law. In order to facilitate such pledge or
assignment, the Borrower hereby agrees that, upon request of any Lender at any
time and from time to time after the Borrower has made its initial borrowing
hereunder, the Borrower shall provide to such Lender, at the Borrower's own
expense, a promissory note, substantially in the form of Exhibit A, evidencing
the Revolving Credit Loans owing to such Lender.
(c) The Administrative Agent, on behalf of the Borrower, shall
maintain at the address of the Administrative Agent referred to in Section 13.2
a copy of each Assignment and Acceptance delivered to it and a register (the
"Register") for the recordation of the names and addresses of the Lenders and
- ---------
the Revolving Credit Commitment of, and principal amount of the Loans owing to,
each Lender from time to time. The entries in the Register shall be conclusive,
in the absence of manifest error, and the Borrower, the Administrative Agent and
the Lenders shall treat each Person whose name is recorded in the Register as
the owner of a Loan or other obligation hereunder as the owner thereof for all
purposes of this Agreement and the other Credit Documents, notwithstanding any
notice to the contrary. Any assignment of any Loan or other obligation
hereunder shall be effective only upon appropriate entries with respect thereto
being made in the Register. The Register shall be available for inspection by
the Borrower or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
<PAGE>
90
(d) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an Assignee (and, in the case of an Assignee that is not
then a Lender or an Affiliate thereof, by the Borrower and the Administrative
Agent) together with payment to the Administrative Agent of a registration and
processing fee of $3,500, the Administrative Agent shall (i) promptly accept
such Assignment and Acceptance and (ii) on the effective date determined
pursuant thereto record the information contained therein in the Register and
give notice of such acceptance and recordation to the Lenders and the Borrower.
(e) Subject to Section 13.16, the Borrower authorizes each Lender to
disclose to any Participant or Assignee (each, a "Transferee") and any
----------
prospective Transferee any and all financial information in such Lender's
possession concerning the Borrower and its Affiliates that has been delivered to
such Lender by or on behalf of the Borrower pursuant to this Agreement or which
has been delivered to such Lender by or on behalf of the Borrower in connection
with such Lender's credit evaluation of the Borrower and its Affiliates prior to
becoming a party to this Agreement, provided that neither the Administrative
--------
Agent nor any Lender shall provide to any Transferee or prospective Transferee
any of the Confidential Information unless such Person shall have previously
executed a Confidentiality Agreement in the form of Exhibit F.
13.7 Replacements of Lenders under Certain Circumstances. The
----------------------------------------------------
Borrower shall be permitted to replace any Lender that (a) requests
reimbursement for amounts owing pursuant to Section 2.10, 2.12, 3.5 or 5.4, (b)
is affected in the manner described in Section 2.10(a)(iii) and as a result
thereof any of the actions described in such Section is required to be taken or
(c) becomes a Defaulting Lender, with a replacement bank or other financial
institution, provided that (i) such replacement does not conflict with any
--------
Requirement of Law, (ii) no Event of Default shall have occurred and be
continuing at the time of such replacement, (iii) the Borrower shall repay (or
the replacement bank or institution shall purchase, at par) all Loans and other
amounts (other than any disputed amounts), pursuant to Section 2.10, 2.11, 2.12,
3.5 or 5.4, as the case may be, owing to such replaced Lender prior to the date
of replacement, (iv) the replacement bank or institution, if not already a
Lender, and the terms and conditions of such replacement, shall be reasonably
satisfactory to the Administrative Agent, (v) the replaced Lender shall be
obligated to make such replacement in accordance with the provisions of Section
13.6 (provided that the Borrower shall be obligated to pay the registration and
processing fee
<PAGE>
91
referred to therein) and (vi) any such replacement shall not be deemed to be a
waiver of any rights that the Borrower, the Administrative Agent or any other
Lender shall have against the replaced Lender.
13.8 Adjustments; Set-off. (a) If any Lender (a "benefitted
--------------------- ----------
Lender") shall at any time receive any payment of all or part of its Loans, or
interest thereon, or receive any collateral in respect thereof (whether
voluntarily or involuntarily, by set-off, pursuant to events or proceedings of
the nature referred to in Section 11.5, or otherwise), in a greater proportion
than any such payment to or collateral received by any other Lender, if any, in
respect of such other Lender's Loans, or interest thereon, such benefitted
Lender shall purchase for cash from the other Lenders a participating interest
in such portion of each such other Lender's Loan, or shall provide such other
Lenders with the benefits of any such collateral, or the proceeds thereof, as
shall be necessary to cause such benefitted Lender to share the excess payment
or benefits of such collateral or proceeds ratably with each of the Lenders;
provided, however, that if all or any portion of such excess payment or benefits
- -------- -------
is thereafter recovered from such benefitted Lender, such purchase shall be
rescinded, and the purchase price and benefits returned, to the extent of such
recovery, but without interest.
(b) After the occurrence and during the continuance of an Event of
Default, in addition to any rights and remedies of the Lenders provided by law,
each Lender shall have the right, without prior notice to the Borrower, any such
notice being expressly waived by the Borrower to the extent permitted by
applicable law, upon any amount becoming due and payable by the Borrower
hereunder (whether at the stated maturity, by acceleration or otherwise) to set-
off and appropriate and apply against such amount any and all deposits (general
or special, time or demand, provisional or final), in any currency, and any
other credits, indebtedness or claims, in any currency, in each case whether
direct or indirect, absolute or contingent, matured or unmatured, at any time
held or owing by such Lender or any branch or agency thereof to or for the
credit or the account of the Borrower. Each Lender agrees promptly to notify
the Borrower and the Administrative Agent after any such set-off and application
made by such Lender, provided that the failure to give such notice shall not
--------
affect the validity of such set-off and application.
13.9 Counterparts. This Agreement may be executed by one or more of
-------------
the parties to this Agreement on any number of separate counterparts (including
by facsimile
<PAGE>
92
transmission), and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. A set of the copies of this Agreement
signed by all the parties shall be lodged with the Borrower and the
Administrative Agent.
13.10 Severability. Any provision of this Agreement that is
-------------
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
13.11 Integration. This Agreement and the other Credit Documents
------------
represent the agreement of the Borrower, the Administrative Agent and the
Lenders with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Administrative Agent or any
Lender relative to subject matter hereof not expressly set forth or referred to
herein or in the other Credit Documents.
13.12 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
--------------
OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
13.13 Submission to Jurisdiction; Waivers. The Borrower hereby
------------------------------------
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Credit Documents to
which it is a party, or for recognition and enforcement of any judgment in
respect thereof, to the non-exclusive general jurisdiction of the courts of
the State of New York, the courts of the United States of America for the
Southern District of New York and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to
the venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;
<PAGE>
93
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid, to the
Borrower at its address set forth in Section 13.2 or at such other address
of which the Administrative Agent shall have been notified pursuant
thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to sue in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any legal action or proceeding referred to
in this Section 13.13 any special, exemplary, punitive or consequential
damages.
13.14 Acknowledgments. The Borrower hereby acknowledges that:
----------------
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Credit Documents;
(b) neither the Administrative Agent nor any Lender has any fiduciary
relationship with or duty to the Borrower arising out of or in connection
with this Agreement or any of the other Credit Documents, and the
relationship between Administrative Agent and Lenders, on one hand, and the
Borrower, on the other hand, in connection herewith or therewith is solely
that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Credit
Documents or otherwise exists by virtue of the transactions contemplated
hereby among the Lenders or among the Borrower and the Lenders.
13.15 WAIVERS OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE AGENT
AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN
ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER CREDIT
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
13.16 Confidentiality. The Administrative Agent and each Lender
----------------
shall hold all non-public information furnished by or on behalf of the Borrower
in connection with such Lender's evaluation of whether to become a Lender
<PAGE>
94
hereunder or obtained by such Lender or the Administrative Agent pursuant to the
requirements of this Agreement ("Confidential Information"), in accordance with
------------------------
its customary procedure for handling confidential information of this nature and
(in the case of a Lender that is a bank) in accordance with safe and sound
banking practices and in any event may make disclosure as required or requested
by any governmental agency or representative thereof or pursuant to legal
process or to such Lender's or the Administrative Agent's attorneys,
professional advisors or independent auditors or Affiliates, provided that
--------
unless specifically prohibited by applicable law or court order, each Lender and
the Administrative Agent shall notify the Borrower of any request by any
governmental agency or representative thereof (other than any such request in
connection with an examination of the financial condition of such Lender by such
governmental agency) for disclosure of any such non-public information prior to
disclosure of such information, and provided further that in no event shall any
----------------
Lender or the Administrative Agent be obligated or required to return any
materials furnished by the Borrower or any Subsidiary of the Borrower. Each
Lender and the Administrative Agent agrees that it will not provide to
prospective Transferees or to prospective direct or indirect contractual
counterparties in swap agreements to be entered into in connection with Loans
made hereunder any of the Confidential Information unless such Person shall have
previously executed a Confidentiality Agreement in the form of Exhibit F.
IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Agreement to be duly executed and delivered as of the date
first above written.
BORDEN CHEMICALS AND PLASTICS
OPERATING LIMITED
PARTNERSHIP,
by
BCP MANAGEMENT, INC., as
General Partner,
by
----------------------
Name:
Title:
<PAGE>
95
THE CHASE MANHATTAN BANK, as
Administrative Agent and as
a Lender,
by
----------------------
Name:
Title:
HIBERNIA NATIONAL BANK,
by
-----------------------
Name:
Title:
PNC BANK, OHIO, NATIONAL
ASSOCIATION,
by
----------------
Name:
Title:
THE HUNTINGTON NATIONAL BANK,
by
-------------------
Name:
Title:
NATIONSBANK, N.A.,
by
---------------------
Name:
Title:
BANK ONE, NA,
by
---------------------
Name:
Title:
<PAGE>
96
WACHOVIA BANK, N.A,
by
------------------
Name:
Title:
STAR BANK, N.A.,
by
-----------------------
Name:
Title:
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> DEC-31-1997
<CASH> 7,528
<SECURITIES> 0
<RECEIVABLES> 94,459
<ALLOWANCES> 0
<INVENTORY> 43,001
<CURRENT-ASSETS> 149,368
<PP&E> 723,052
<DEPRECIATION> 432,852
<TOTAL-ASSETS> 500,186
<CURRENT-LIABILITIES> 85,034
<BONDS> 200,000
0
0
<COMMON> 0
<OTHER-SE> 183,078
<TOTAL-LIABILITY-AND-EQUITY> 500,186
<SALES> 737,129
<TOTAL-REVENUES> 737,129
<CGS> 681,984
<TOTAL-COSTS> 681,984
<OTHER-EXPENSES> 28,650
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 20,898
<INCOME-PRETAX> 5,597
<INCOME-TAX> 0
<INCOME-CONTINUING> 5,597
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 5,597
<EPS-PRIMARY> 0.15
<EPS-DILUTED> 0.15
</TABLE>
