<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 10-Q
(Mark One)
/ X / QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended June 30, 1997
OR
/ / TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the Transition period from ______ to ______
Commission file number 1-12372
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CYTEC INDUSTRIES INC.
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(Exact name of registrant as specified in its charter)
Delaware 22-3268660
------------------------------- ----------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
Five Garret Mountain Plaza
West Paterson, New Jersey 07424
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(Address of principal executive offices)
973-357-3100
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(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports) and (2) has been subject to such filing
requirements for the past 90 days. Yes X No
--- ---
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date: 44,846,701 shares of Common
Stock, par value $.01 per share were outstanding at June 30, 1997.
<PAGE>
CYTEC INDUSTRIES INC. AND SUBSIDIARIES
INDEX
Part I - Financial Information
Item 1. Consolidated Financial Statements
Consolidated Statements of Income
Consolidated Balance Sheets
Consolidated Statements of Cash Flows
Notes to Consolidated Financial Statements
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations
Part II - Other Information
Item 1. Legal Proceedings
Item 2. Changes in Securities
Item 4. Submission of Matters to a Vote of
Security Holders
Item 6. Exhibits and Reports on Form 8-K
Exhibit Index
<PAGE>
CYTEC INDUSTRIES INC. AND SUBSIDIARIES
PART I - FINANCIAL INFORMATION
Item 1. - Consolidated Financial Statements
CONSOLIDATED STATEMENTS OF INCOME
(Unaudited)
(Millions of Dollars, except share and per share amounts)
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
June 30, June 30,
-------- --------
1997 1996 1997 1996
---- ---- ---- ----
<S> <C> <C> <C> <C>
Net sales $315.5 $318.1 $622.0 $622.6
Manufacturing cost of sales 219.2 226.4 454.1 444.1
Selling and technical services 34.8 35.0 69.4 69.9
Research and process development 10.7 9.7 21.0 20.0
Administrative and general 10.8 11.0 21.8 22.1
------ ------ ------ ------
Earnings from operations 40.0 36.0 55.7 66.5
Other income (expense), net 1.3 1.5 25.7 2.8
Equity in earnings of associated companies 4.0 5.7 8.5 12.3
Interest income (expense), net 0.3 (0.8) 0.1 (1.2)
------ ------- ------ -------
Earnings before income taxes 45.6 42.4 90.0 80.4
Income tax provision 17.8 17.0 35.3 32.4
------ ------ ------ ------
Net earnings 27.8 25.4 54.7 48.0
------ ------ ------ ------
Earnings per common share $ .59 $ .51 $1.15 $ .94
Weighted average shares outstanding (including
common stock equivalents) 47,485,000 49,790,000 47,681,000 50,520,000
</TABLE>
See accompanying Notes to Consolidated Financial Statements.
<PAGE>
CYTEC INDUSTRIES INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(Unaudited)
(Millions of Dollars, except share and per share amounts)
<TABLE>
<CAPTION>
June 30, December 31,
Assets 1997 1996
---------- ------------
<S> <C> <C>
Current assets
Cash and cash equivalents $22.7 $20.4
Accounts receivable, less allowance for doubtful accounts of
$9.5 and $11.1 in 1997 and 1996, respectively 209.0 206.5
Inventories 86.5 105.6
Deferred income taxes 63.2 65.1
Other current assets 20.4 18.7
--------- ---------
Total current assets 401.8 416.3
Equity in net assets of and advances to associated companies 144.2 143.7
Plants, equipment and facilities, at cost 1,186.9 1,339.7
Less: accumulated depreciation (658.3) (757.5)
---------- -----------
Net plant investment 528.6 582.2
Intangibles resulting from business acquisitions,
net of accumulated amortization 16.6 17.1
Deferred income taxes 86.6 89.6
Other assets 5.8 12.2
--------- ---------
$1,183.6 $1,261.1
========= =========
Liabilities and Stockholders' Equity
Current liabilities
Accounts payable 84.7 $101.3
Accrued expenses 207.3 205.1
Income taxes payable 31.1 6.4
-------- ---------
Total current liabilities 323.1 312.8
Long-term debt 26.0 89.0
Other noncurrent liabilities 503.3 544.9
Put warrants 11.4 --
Stockholders' equity
Preferred stock, 20,000,000 shares authorized, issued and outstanding 4,000
shares, Series C, $.01 par value, at
liquidation value of $25 per share 0.1 0.1
Common stock, $.01 par value per share, 150,000,000 shares
authorized, issued 48,181,264 in 1997 and 48,377,683 in 1996 0.5 0.5
Additional paid-in capital 201.4 229.7
Retained earnings 272.6 217.9
Unearned compensation (3.5) (2.4)
Accumulated translation adjustments 0.5 8.8
Treasury stock at cost, 3,334,563 shares in 1997 and 2,883,485
shares in 1996 (151.8) (140.2)
---------- ----------
Total stockholders' equity 319.8 314.4
--------- ---------
$1,183.6 $ 1,261.1
========= ==========
</TABLE>
See accompanying Notes to Consolidated Financial Statements.
<PAGE>
CYTEC INDUSTRIES INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
(Millions of dollars)
<TABLE>
<CAPTION>
Six Months Ended
----------------
June 30,
--------
1997 1996
---- ----
<S> <C> <C>
Cash flows provided by (used for) operating activities
Net earnings $54.7 $48.0
Non-cash items included in net earnings:
Equity in undistributed net earnings of associated companies (2.2) (9.9)
Depreciation 36.9 40.4
Amortization 1.5 2.3
Deferred income taxes 5.5 1.1
Gain on sale of businesses (22.3) -
Changes in operating assets and liabilities, net of effects
from sale of businesses
Accounts receivable (31.0) (3.0)
Inventories 2.0 (11.0)
Accounts payable (13.4) (3.2)
Accrued expenses 9.3 5.7
Income taxes payable 31.7 25.9
Other assets (4.2) (5.5)
Other liabilities (31.7) (1.3)
------- -------
Net cash flows provided by operating activities 36.8 89.5
------- -------
Cash flows provided by (used for) investing activities
Additions to plants, equipment and facilities (34.7) (29.4)
Proceeds received on sale of assets 94.8 2.0
Return of capital by investees - 25.0
Change in other assets 7.0 -
------- -------
Net cash provided by (used for)investing activities 67.1 (2.4)
------- --------
Cash flows provided by (used for) financing activities
Proceeds from the exercise of stock options 3.8 1.7
Purchase of treasury stock (41.8) (73.4)
Change in long-term debt (63.0) (2.0)
Proceeds received on sale of put warrants 0.5 1.7
------- --------
Net cash flows used for financing activities (100.5) (72.0)
------- -------
Effect of exchange rate changes on cash and cash equivalents (1.1) (0.3)
------- -------
Increase in cash and cash equivalents 2.3 14.8
Cash and cash equivalents, beginning of period 20.4 12.0
------ -------
Cash and cash equivalents, end of period $ 22.7 $ 26.8
======= =======
</TABLE>
See accompanying Notes to Consolidated Financial Statements.
<PAGE>
CYTEC INDUSTRIES INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
(Millions of Dollars, except share and per share amounts)
(1) Basis of Presentation
The unaudited consolidated financial statements included herein have
been prepared pursuant to the rules and regulations of the Securities
and Exchange Commission for reporting on Form 10-Q. Certain information
and footnote disclosures normally included in financial statements
prepared in accordance with generally accepted accounting principles
have been condensed or omitted pursuant to such rules and regulations.
The statements should be read in conjunction with the consolidated
financial statements and notes to the consolidated financial statements
contained in the Company's 1996 Annual Report on Form 10-K.
In the opinion of management, the consolidated financial statements
included herein reflect all adjustments necessary for a fair statement
of the information presented as of June 30, 1997 and for the three and
six month periods ended June 30, 1997 and 1996. Such adjustments are of
a normal, recurring nature. The statements of income for the three and
six month periods ended June 30, 1997 are not necessarily indicative of
the results to be expected for the full year.
Certain reclassifications have been made to the Consolidated Statements
of Income for the three and six month periods ended June 30, 1996 to
conform to the 1997 presentation.
Unless indicated otherwise, the term "Company", with respect to periods
beginning on or after December 17, 1993, the effective date of the
transfer of substantially all of the assets and liabilities of the
chemicals businesses of American Cyanamid Company ("Cyanamid") to the
Company (the "Spin-off"), refers collectively to Cytec Industries Inc.,
and its subsidiaries, and with respect to periods prior to the
Spin-off, the term refers to the chemicals businesses of Cyanamid.
Cyanamid was acquired by American Home Products Corporation in November
1994. Cytec was incorporated as an independent public company in
December 1993.
(2) Earnings Per Share
In June, 1996 the Company announced a 3 for 1 stock split of the
Company's common stock payable in the form of a stock dividend. The
stock dividend was paid July 23, 1996 to stockholders of record as of
the close of business on July 2, 1996. Earnings per share calculations
for all periods presented were restated to reflect the 3 for 1 stock
split.
Earnings per common share were computed by dividing net income by
shares that would be outstanding assuming exercise of dilutive stock
options which are considered to be common stock equivalents. The number
of common shares that would be issued from the exercise of stock
options has been reduced by the number of common shares that could be
purchased from the proceeds at the average market price of the
Company's stock during
<PAGE>
CYTEC INDUSTRIES INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
(Millions of Dollars, except share and per share amounts)
the periods such options were outstanding.
In February 1997, the Financial Accounting Standards Board issued
Statement No. 128, "Earnings per Share," ("FASB 128") which is required
to be adopted on December 31, 1997. At that time, the Company will be
required to change the method currently used to compute earnings per
share and to restate all prior periods. Under the new requirements,
primary earnings per share is replaced by a new measure called basic
earnings per share which excludes the dilutive effect of common stock
equivalents. The impact of the new Statement would result in a basic
earnings per share which is $.02 higher than primary earnings per share
for the three months ended June 30, 1997 and 1996, and $.05 higher than
primary earnings per share for the six months ended June 30, 1997 and
1996. The impact of FASB 128 on the calculation of fully diluted
earnings per share for these quarters is not expected to be material.
(3) Inventories
Components of inventories at June 30, 1997 and December 31, 1996 were
as follows:
June 30, December 31,
1997 1996
----- ------
Finished goods $66.1 $85.7
Work in process 15.7 16.9
Raw materials & supplies 47.7 53.7
----- ------
129.5 156.3
Less reduction in LIFO cost (43.0) (50.7)
----- ------
$86.5 $105.6
===== ======
(4) Equity in Earnings of Associated Companies
Summarized financial information for the Company's equity in earnings
of associated companies is as follows:
<TABLE>
<CAPTION>
Three Months Six Months
------------ ----------
Ended June 30, Ended June 30,
-------------- --------------
1997 1996 1997 1996
---- ---- ---- ----
<S> <C> <C> <C> <C>
Net sales $165.5 $158.6 $306.9 $301.8
Gross profit 40.5 38.8 76.6 76.2
Net income 11.1 14.5 21.8 29.9
The Company's share of earnings of
associated companies $ 4.0 $ 5.7 $ 8.5 $ 12.3
====== ====== ====== =======
</TABLE>
<PAGE>
CYTEC INDUSTRIES INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
(Millions of Dollars, except share and per share amounts)
(5) Contingent Liabilities
The Company is subject to substantial costs arising out of
environmental laws and regulations, which include obligations to remove
or limit the effects on the environment of the disposal or release of
certain wastes or substances at various sites. Liability for
investigative, removal and remedial costs under certain federal and
state laws is retroactive, strict and joint and several. The Company is
currently a party to, or otherwise involved in, legal proceedings
directed at the cleanup of approximately 65 Superfund sites. Since the
laws pertaining to these sites provide for joint and several liability,
a governmental plaintiff could seek to recover all remediation costs at
a waste disposal site from any of the potentially responsible parties
("PRPs") for such site, including the Company, despite the involvement
of other PRPs. In some cases, the Company is one of several hundred
identified PRPs, while in others it is the only one or one of only a
few. Generally, where there are a number of financially solvent PRPs,
liability has been apportioned, or the Company believes, based on its
experience with such matters, that liability will be apportioned based
on the type and amount of waste disposed by each PRP at such disposal
site and the number of financially solvent PRPs. The Company is also
conducting remediation at, or is otherwise responsible for, a number of
non-Superfund sites. Proceedings involving environmental matters, such
as alleged discharge of chemicals or waste material into the air, water
or soil, are pending against the Company in various states. In many
cases, future environmental-related expenditures cannot be quantified
with a reasonable degree of accuracy. In addition, from time to time in
the ordinary course of its business, the Company is informed of, and
receives inquiries with respect to, new sites which may contain
environmental contamination for which the Company may be responsible.
It is the Company's policy to accrue and charge against earnings,
environmental cleanup costs when it is probable that a liability has
been incurred and an amount is reasonably estimable. As assessments and
cleanups proceed, these accruals are reviewed periodically and
adjusted, if necessary, as additional information becomes available.
These accruals can change substantially due to such factors as
additional information on the nature or extent of contamination,
methods of remediation required, and other actions by governmental
agencies or private parties. Cash expenditures often lag behind the
period in which an accrual is recorded by a number of years.
In accordance with the above policies, as of June 30, 1997 and December
31, 1996, the aggregate environmental related accruals were $167.1 and
$177.5, respectively, of which $25.0 was included in accrued expenses
in 1997 and 1996, with the remainder included in other noncurrent
liabilities. Environmental remediation spending for the six months
ended June 30, 1997 and 1996 was $12.9 and $7.7, respectively. All
<PAGE>
CYTEC INDUSTRIES INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
(Millions of Dollars, except share and per share amounts)
accruals have been recorded without giving effect to any possible
future insurance proceeds. Various environmental matters are currently
being litigated and potential insurance recoveries are unknown at this
time but are considered unlikely.
While it is not feasible to predict the outcome of all pending
environmental suits and claims, it is reasonably possible that there
will be a necessity for future provisions for environmental costs
which, in management's opinion, will not have a material effect on the
financial position of the Company, but could be material to the results
of operations of the Company in any one accounting period. The Company
cannot estimate any additional amount of loss or range of loss in
excess of the recorded amounts. Moreover, environmental liabilities are
paid over an extended period and the timing of such payments cannot be
predicted with any confidence.
The Company is also a party to various other claims and routine
litigation arising in the normal course of its business. Based on the
advice of counsel, management believes that the resolution of such
claims and litigation will not have a material adverse effect on the
financial position of the Company, but could be material to the results
of operations of the Company in any one accounting period.
(6) Other Financial Information
Taxes paid for the six months ended June 30, 1997 and 1996 were
approximately $16.4 and $17.9, respectively. Interest paid for the six
months ended June 30, 1997 and 1996 was approximately $1.3 and $2.2,
respectively.
The Company's ratio of earnings to fixed charges for the three and six
months ended June 30, 1997 was 20.6 and 17.1, respectively. For
purposes of computing the ratio of earnings to fixed charges (a)
earnings consist of earnings before income taxes which include the
Company's share of pre-tax equity in earnings of associated companies,
plus fixed charges less capitalized interest and (b) fixed charges
consist of interest on long-term debt, plus the portion of rentals
representative of an interest factor plus the Company's share of such
charges of associated companies.
During the first half, a total of 1,084,450 shares of treasury stock
were purchased at a cost of $41.8. This included the completion of the
10% stock repurchase program started in the first quarter of 1996. In
April 1997, the Company began a new stock repurchase program for
approximately 10% of the outstanding shares, or 4.5 million shares.
Through June 30, 1997, the Company had repurchased 788,250 shares at a
cost of $30.2 under this new program. Depending on the level, price and
timing of repurchases, borrowings may be required.
<PAGE>
CYTEC INDUSTRIES INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
(Millions of Dollars, except share and per share amounts)
Also during the second quarter of 1997, in connection with the
Company's stock repurchase program, the Company wrote put warrants on
300,000 shares of its common stock for which it received premiums of
approximately $0.5 in cash. These put warrants entitled the holders to
sell shares of the Company's common stock to the Company on certain
dates at specified prices. At June 30, 1997, 300,000 warrants were
outstanding with strike prices ranging between $37.63 and $38.25 per
share. The maximum potential repurchase obligation at June 30, 1997,
$11.4, was reclassified from stockholders' equity to put warrants.
These warrants expired unexercised in July 1997 and the Company wrote
new put warrants on 300,000 shares of its common stock. The new
warrants expire at various dates, are exercisable only at maturity and
are all settleable in cash at the Company's option.
In May 1997, the Company's stockholders approved an increase in the
authorized common stock of the Company from 75 million shares to 150
million shares.
<PAGE>
CYTEC INDUSTRIES INC. AND SUBSIDIARIES
(Millions of Dollars, except share and per share amounts)
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations
Results of Operations
Second Quarter of 1997 versus Second Quarter 1996
Net sales for the second quarter of 1997 were $315.5 as compared to
$318.1 in the second quarter of 1996. Sales for the quarter were
impacted by the divestiture of the Acrylic Fibers product line on
January 31, 1997. The Company also exited the Alum product line and the
Technical Chemicals product line in the last quarter of 1996. Excluding
those three product lines from 1996 results, and adjusting 1997
results for sales of acrylonitrile to the purchaser of the Acrylic
Fibers product line, 1997 sales increased 11%.
Specialty Chemicals net sales increased $8.0, or 4.4% excluding the
effect of divested product line sales. The Surfactants & Monomers and
Phosphine product lines had the largest percentage increases. The
increase in Surfactants and Monomers is primarily attributable to
strong sales in North America and strong growth in international sales,
mainly Europe and Asia Pacific. The increase in Phosphines sales is
primarily attributable to strong sales in Europe. Pressure on selling
prices negatively impacted Specialty Chemical sales by almost 2% and
the Company expects pricing pressure to continue throughout 1997.
Foreign exchange negatively impacted sales by approximately 2%,
principally in Europe, due to the stronger dollar.
Specialty Materials net sales increased $9.7, or 20.8% excluding the
effect of the divested Acrylic Fibers product line sales. The increase
is attributable to the Aerospace Materials product line as a result of
the improving aerospace industry commercial aircraft build rates.
Building Block net sales increased $24.6, or 52.9%. Sales for the
second quarter of 1997 include $13.9 of acrylonitrile sales to the
purchaser of the Acrylic Fibers product line which were treated as
internal transfers prior to the divestiture. Excluding the effect of
these sales, Building Block net sales increased $11.0, or 23%. Sales of
Building Blocks were favorably affected by higher selling prices and
higher plant operating rates as the methanol facility was shut down in
the second quarter of 1996 for mechanical repairs. The effect of higher
selling prices improved sales by 3.8% although the foreign exchange
effect of the stronger dollar, principally in Europe, offset this
improvement by approximately 1.9%.
Manufacturing cost of sales decreased to 69.5% of net sales as compared
to 71.2% in the like period of 1996. The decrease is the result of an
improved product sales mix, including the divestiture of the Acrylic
Fibers and Alum product lines, and the effect of improving plant
efficiency and continuing cost reduction programs. Partially offsetting
those improvements are higher raw material costs, primarily propylene,
and methanol derivatives. The impact of the stronger dollar also
<PAGE>
CYTEC INDUSTRIES INC. AND SUBSIDIARIES
(Millions of Dollars, except share and per share amounts)
depressed margins although this was mitigated somewhat by the Company's
manufacturing presence in Europe.
Selling and technical service expenses decreased $0.2 when compared to
the same quarter last year, but excluding the effect of divested
product lines, were up about 6%. Sales and technical service spending
are expected to continue to increase slightly during the year as the
Company continues to focus additional sales effort in international
markets.
Research and process development costs increased $1.0 reflecting
continued effort on technical programs.
Administrative and general expenses decreased slightly and are expected
to decline modestly throughout 1997 as overheads associated with the
divested product lines are shed.
Other income (expense), net was relatively flat with last year.
Equity in earnings of associated companies decreased $1.7 primarily due
to lower earnings at Criterion Catalyst. This is the result of
operational inefficiencies, an unfavorable product mix and lower
selling prices. The operational inefficiencies relate to Criterion's
infrastructure that has not been able to keep up with Criterion's
growth. Criterion earnings are not expected to improve for the
remainder of 1997.
Interest income (expense), net increased $1.1 as a result of lower
interest expense. This was the result of using some of the proceeds
from the sale of the Acrylic Fibers product line to reduce outstanding
debt levels.
The income tax provision is based on a rate of 39% compared to last
year's 41%. The reduction reflects improved tax planning in the state
tax area as well as benefits from increased sales through the Company's
foreign sales corporation.
Net earnings of $27.8 in the second quarter increased $2.4 or 9% from
the same period last year. Increased earnings in most product lines
were partially offset by difficulties at Criterion Catalyst and in the
Coatings and Resins product line. Earnings per share increased to $0.59
from the prior year period of $0.51. The increase is attributable to
the higher earnings and the reduction in the number of common shares
outstanding as a result of the Company's repurchase programs.
<PAGE>
CYTEC INDUSTRIES INC. AND SUBSIDIARIES
(Millions of Dollars, except share and per share amounts)
First Half of 1997 versus First Half of 1996
Net sales for the first half of 1997 were $622.0, flat with last year's
same period. Sales increased 10% on a comparable basis after adjusting
1996 and 1997 results for the effect of the divestiture of the Acrylic
Fibers and Alum product lines and the exit of the Technical Chemicals
product line and adjusting 1997 results for sales of acrylonitrile to
the purchaser of the Acrylic Fibers line.
Specialty Chemicals net sales decreased $2.2 or 1%. Excluding the Alum
and Technical Chemicals divested product lines, net sales were higher
by 4%. Strong performances occurred in Mining Chemicals, Surfactants &
Monomers, and Phosphine Chemicals. Mining Chemicals included sales
growth of the Alumina product line in the Americas and higher sales of
existing and new mineral processing products in the Americas and in
Europe. Surfactants & Monomers sales were higher mainly in the North
American industrial sector, and Phosphines sales were up strongly in
Europe. Selling price pressure impacted sales negatively by about 1%
and exchange also impacted sales unfavorably by about 2%, mainly due to
the strong dollar in Europe.
Specialty Materials net sales were down $39.4. Excluding the sales of
the divested Acrylic Fibers product line, sales rose 18% principally
due to the continued strong performance of Aerospace Materials products
in the commercial aircraft sector.
Building Blocks net sales increased $41.1 or 45%. Included in 1997 were
acrylonitrile sales of $22.2 to the purchaser of the Acrylic Fibers
business which were treated as internal transfers prior to the
divestiture. Excluding these sales the net year to year increase for
the first half was 21%. Both acrylonitrile and methanol sales volume
were higher. Last year, the methanol facility was shut down in January
due to high natural gas costs and during the second quarter for
mechanical repairs to the reactor.
Manufacturing cost of sales in the first half increased from 71.3% of
sales to 73.0%. This was attributable to restructuring charges of $18.6
relating primarily to manufacturing sites located in Botlek, The
Netherlands and Linden, New Jersey. Excluding these charges,
manufacturing cost of sales improved 1.3% to 70.0% of net sales when
compared to the same period last year. This was the result of an
improved product sales mix and the effect of improving plant efficiency
and continuing cost reduction programs. Partially offsetting this were
higher raw material costs, primarily propylene and methanol
derivatives, and the impact of the stronger dollar.
Selling and technical service expenses decreased $0.5. After excluding
divested product lines, the rate of increase was 5.0% reflecting the
additional sales effort in international markets and support of
domestic sales growth in several specialty segments.
<PAGE>
CYTEC INDUSTRIES INC. AND SUBSIDIARIES
(Millions of Dollars, except share and per share amounts)
Research and process development expenses for the first half of 1997
increased $1.0 or 5% reflecting continued effort in technical programs
in the Specialty Chemicals product lines.
Other income (expense), net improved $22.9 in the first half of 1997.
Included in 1997 was $22.3 of gain related to divested product lines.
Equity in earnings of associated companies decreased $3.8 mainly due to
lower sales volume, less favorable product mix and lower selling prices
of Criterion Catalyst. Operational inefficiencies at Criterion Catalyst
also depressed earnings.
Interest income (expense), net improved as a result of paying down
debt. This was possible due to the proceeds received from the sale of
the Acrylic Fibers product line.
The income tax provision was reduced to a rate of 39% from last year's
41% as a result of improved state tax planning and increased sales
through the Company's foreign sales corporation.
Net earnings for the first half of 1997 increased 13.9% to $54.7,
versus $48.0 for the same period of 1996. Included in 1997 net earnings
is an after tax charge of $11.3 ($0.24 per common share) relating to
the restructuring charges mentioned earlier and an after tax gain of
$13.6 ($0.28 per common share) primarily relating to the Acrylic Fibers
divestiture. Earnings per share of $1.15 is $0.21 higher due to the
increased earnings, and the effect of the Company's common stock
repurchase programs.
Liquidity and Financial Condition
At June 30, 1997, the Company's cash balance was $22.7, an increase of
$2.3 from year end 1996.
Net cash flows from operating activities totaled $36.8, compared to
$89.5 in the same period of 1996. A significant factor affecting this
decrease was the company's decision to fund $25.0 million of its
post-retirement benefits liability through contributions to its
Voluntary Employee Benefit Association (VEBA) utilizing some of the
proceeds from the sale of the Acrylic Fibers product line. Accounts
receivables increased due to the higher level of sales after adjusting
for divested product lines.
Net cash flows provided by investing activities totaled $67.1 which
compares to the $2.4 million of net cash flows used for investing
activities in the like period of 1996. Included in 1997 are proceeds of
$94.8 million associated with the sale of the Acrylic Fibers product
line and $7.0 associated with the sale of other investments. Capital
additions were slightly higher than the same period last year and are
expected to increase over the remainder of the year as certain large
projects in the Specialty Chemicals product lines, such as the
benzotriazole light
<PAGE>
CYTEC INDUSTRIES INC. AND SUBSIDIARIES
(Millions of Dollars, except share and per share amounts)
stabilizer plant in Botlek, the Netherlands and the expansion of the
surfactant plant in Willow Island, West Virginia, use additional funds.
For the full year 1997 the Company continues to estimate capital
spending of approximately $85.
The Company believes that based on internal cash generation it will be
able to fund operating cash requirements and planned capital
expenditures through the balance of 1997.
Net cash flows used for financing activities totaled $100.5 compared to
$72.0 for the same period in 1996. During the first half, a total of
1,084,450 shares of treasury stock were purchased at a cost of $41.8.
This included the completion of the 10% stock repurchase program
started in the first quarter of 1996. In April 1997, the Company began
a new stock repurchase program for approximately 10% of the outstanding
shares, or 4.5 million shares. Through June 30, 1997, the Company had
repurchased 788,250 shares at a cost of $30.2 under this new program.
Depending on the level, price and timing of repurchases, borrowings may
be required.
Also during the second quarter of 1997, in connection with the
Company's stock repurchase program, the Company wrote put warrants on
300,000 shares of its common stock for which it received premiums of
approximately $0.5 in cash. These put warrants entitled the holders to
sell shares of the Company's common stock to the Company on certain
dates at specified prices. At June 30, 1997, 300,000 warrants were
outstanding with strike prices ranging between $37.63 and $38.25 per
share. The maximum potential repurchase obligation at June 30, 1997,
$11.4, was reclassified from stockholders' equity to put warrants.
These warrants expired unexercised in July 1997 and the Company wrote
new put warrants on 300,000 shares of its common stock. The new
warrants expire at various dates, are exercisable only at maturity and
are all settleable in cash at the Company's option.
Long-term debt was reduced due to net proceeds from the sale of the
Acrylic Fibers business partly offset by funding required for the
aforementioned VEBA payments.
The Company filed an amendment with the Securities and Exchange
Commission on April 8, 1997, to make effective a shelf registration
statement covering $300.0 of senior debt securities. The registration
was originally filed with the Securities and Exchange Commission during
1996. Net proceeds from any sale of these securities would be used for
general corporate purposes, which may include acquisitions, repayment
of indebtedness and other liabilities, share repurchases, additions to
working capital and capital expenditures.
The Company on April 8, 1997 signed an agreement with Cyanamid, a
subsidiary of American Home Products Corporation, to revise certain of
the
<PAGE>
CYTEC INDUSTRIES INC. AND SUBSIDIARIES
(Millions of Dollars, except share and per share amounts)
financial covenants contained in its Series C Cumulative Preferred
stock. Under the revised terms the Company must maintain a debt to
equity ratio of no more than 2-to-1, a minimum fixed charge coverage
ratio of not less than 3-to-1 for the average of the fixed charge
coverage ratios for the four consecutive fiscal quarters most recently
ended and must not incur more than $150 of debt unless the Company's
equity is in excess of $200. If the Company has more than $200 in
equity then the Company may incur additional debt as long as its ratio
of debt to equity is not more than 1.5-to-1. Prior to the revised
agreement, the Company was to maintain a minimum fixed charge coverage
ratio of no less than 2-to-1 and, if the Company's equity was in excess
of $200, then it could not incur additional indebtedness if it would
cause the ratio of debt to equity to exceed .75- to-1. At June 30,
1997, the Company had $26.0 of debt and $319.7 in equity as defined in
the Series C Stock covenants and, under the revised terms, would have
had the ability to incur up to an additional $453.6 in debt.
At June 30, 1997, the Company had a revolving credit facility (the
"Credit Facility") with a syndicate of banks to provide for unsecured
revolving loans ("Revolving Loans") of up to $150.0. The revolving
loans are available for the general corporate purposes of the Company
and its subsidiaries, including, without limitation, for purposes of
making acquisitions permitted under the Credit Facility. Under the
terms of the Credit Facility, the Company had an additional $125.0
available for borrowing at June 30, 1997. The Credit Facility which was
scheduled to mature on June 1, 2000, contained covenants customary for
such facilities. The Company was in compliance with all material terms,
covenants and conditions of the Credit Facility at June 30, 1997.
In July, 1997, the Company renegotiated the Credit Facility to increase
the maximum available for borrowing from $150 to $200, to extend the
maturity from June 2000 to July 2002 and to expand the existing
syndicate of banks to include the Development Bank of Singapore Ltd.
Comments on Forward-Looking Statements
A number of the statements made by the Company in this Management's
Discussion and Analysis, or in other documents, including but not
limited to the Company's Annual Report to Stockholders, its press
releases and its periodic reports to the Securities and Exchange
Commission, may be regarded as "forward-looking statements" within the
meaning of the Private Securities Litigation Reform Act of 1995.
Forward-looking statements include, among others, statements concerning
the Company's outlook for 1997 and beyond, pricing trends and forces
within the industry, cost reduction strategies and their results,
long-term goals of the Company and other statements of expectations,
beliefs, future plans and strategies, anticipated events or trends, and
similar expressions concerning matters that are not historical facts.
All predictions as to future results contain a measure of uncertainty
and, accordingly, actual results could differ materially. Among the
factors
<PAGE>
CYTEC INDUSTRIES INC. AND SUBSIDIARIES
(Millions of Dollars, except share and per share amounts)
that could cause a difference are: changes in the general economy, in
demand for the Company's products or in the costs and availability of
its raw materials; the actions of competitors; technological change;
changes in employee relations, including possible strikes; government
regulations; litigation, including its inherent uncertainty;
difficulties in plant operations and materials transportation;
environmental matters; and other unforeseen circumstances. A number of
these factors are discussed in the Company's filings with the
Securities and Exchange Commission.
<PAGE>
CYTEC INDUSTRIES INC. AND SUBSIDIARIES
(Millions of Dollars, except share and per share amounts)
Part II - Other Information
Item 1. Legal Proceedings
In connection with the Spin-off, the Company assumed from Cyanamid
substantially all liabilities for legal proceedings relating to
Cyanamid's chemicals businesses, other than any legal proceedings
related to remediation of Cyanamid's Bound Brook Facility. As a result,
although Cyanamid is the named defendant in cases relating to events
prior to the Spin-off, the Company is the party in interest and is
herein described as the defendant.
The Company is a defendant in thirteen cases pending in state courts in
Jefferson, Dallas, Harrison and Hidalgo counties, Texas in which many
plaintiffs seek damages for injuries allegedly due to exposure to
benzene, butadiene, asbestos or other chemicals. Four of the cases
involve several hundred plaintiffs, while the remainder involve
substantially fewer plaintiffs. All of these cases involve multiple
defendants. The Company is also one of multiple defendants in three
cases (originally brought in Texas by multiple plaintiffs who claimed
they were injured due to exposure to asbestos) which have been
transferred by the Judicial Panel for Multi-District Litigation to the
United States District Court for the Eastern District of Pennsylvania,
for coordination of pretrial activities, primarily discovery. The
Company believes that its involvement in all but five of these cases
results from its former 50% ownership of Jefferson Chemical Company,
which the Company disposed of in 1975. It is not known at this time how
many plaintiffs eventually will assert claims against the Company.
The Company is one of many defendants in suits filed by approximately
23 former employees of Boeing-Vertol in state and federal courts in
Pennsylvania alleging exposure to asbestos-containing products. Of
these suits, 21 are inactive because plaintiffs have not yet developed
any symptoms and 2 are active.
The Company is the defendant in a class action filed in Jefferson
Parish Court, Louisiana on behalf of persons residing in the city of
Kenner, Louisiana claiming damages allegedly caused by a sulfur dioxide
emission from the Company's Fortier facility in 1992. Prior to
consolidation and certification of the class, the original 29 cases had
been remanded to state court following a federal court ruling that the
plaintiffs did not individually assert damages in excess of the federal
jurisdictional amount of $50,000.
The Company is also the defendant in two class actions filed in
Jefferson Parish Court, Louisiana, on behalf of persons who allegedly
sustained injury as a result of an explosion and fire at the Company's
Fortier facility on February 21, 1996. The Company has conducted
limited discovery in these cases and, therefore, has little information
on whether, or to what extent, most members of the alleged class
actually suffered any injury.
<PAGE>
CYTEC INDUSTRIES INC. AND SUBSIDIARIES
The Company is one of several alleged processors of lead, lead pigments
and/or lead-based paints named as defendants in five cases pending in
state and federal courts in the states of New York and Ohio. The first
suit, filed in New York Supreme Court, New York County, by the City of
New York, the New York Housing Authority, and the New York City Health
and Hospitals Corporation, seeks damages for the cost of removing
lead-based paints from New York City-owned buildings. The second suit,
filed in New York Supreme Court, Erie County, was brought on behalf of
two minor children, who seek damages for personal injuries allegedly
caused by ingestion of lead-based paints. The third suit is a class
action pending in the United States District Court for the Southern
District of New York in which two minor children have intervened and
filed a complaint against the Company and six other alleged processors
of lead, lead pigments and/or lead-based paints seeking injunctive
relief, consisting of orders requiring the defendants to contribute to
court-administered funds to (i) pay for medical monitoring of class
members; (ii) provide abatement of lead-based paint hazards in
dwellings in the city of New York where class members reside; and (iii)
provide notification to class members. The fourth case was brought in
New York Supreme Court, Erie County, by a single plaintiff who claims
to have been injured due to the presence of lead-based paints in
buildings in which he resided. In all four cases, the Company is named
a defendant as the alleged successor to the MacGregor Lead Company,
from which the Company purchased certain assets in 1971. The fifth case
is a class action brought against the Company and ten other defendants
in the Court of Common Pleas in Cuyahoga County, Ohio on behalf of
children with blood levels of lead greater than 20 micrograms per
deciliter. The plaintiffs seek compensatory and punitive damages for
injuries allegedly caused by exposure to lead-based paints.
The EPA has brought an administrative action against the Company,
alleging certain violations of the boiler and industrial furnace
regulations which apply to the industrial furnace at the Company's
Kalamazoo plant. The EPA's complaint demands approximately $420,000 in
penalties, primarily for paperwork violations. In summary disposition
proceedings, the administrative Law Judge ruled in favor of the Company
in two of the original six counts of the complaint; the remaining
counts are being adjudicated.
In February 1996, in an action brought against the Louisiana Department
of Environmental Quality ("DEQ") by the Louisiana Environmental Acton
Network, the Louisiana Court of Appeals vacated and set aside a
decision (the "Decision") of the DEQ granting the Company an exemption
from Louisiana hazardous waste land disposal restrictions in order to
operate five waste disposal deep wells at the Fortier facility. The
Court ruled that the Decision was inadequate because it did not contain
basic and ultimate findings and articulate a rational connection
between those findings and the issuance of the exemption. The Court
remanded the action to the DEQ for the issuance of findings to support
approval of the exemption. The DEQ then reissued the Decision in
accordance with the greater explanatory requirements of the Court of
Appeals judgment, and the plaintiffs appealed. Subsequently, the State
of Louisiana adopted legislation which renders moot most of the issues
raised in this
<PAGE>
CYTEC INDUSTRIES INC. AND SUBSIDIARIES
litigation. Use of the deep wells is essential to continued operation
of the acrylonitrile plant at the Fortier facility. The Company
continues to operate the deep wells.
See also the first four paragraphs of "Environmental Matters" under
Item 1 of the Company's 1996 Annual Report on Form 10-K, and Note 5 of
the Notes to Consolidated Financial Statements (unaudited) in Part I,
item (1), which are incorporated by reference herein.
In addition to liabilities with respect to the specific cases described
previously, because the production of certain chemicals involves the
use, handling, processing, storage and transportation of hazardous
materials, and because certain of the Company's products constitute or
contain hazardous materials, the Company has been subject to claims of
injury from direct exposure to such materials and from indirect
exposure when such materials are incorporated into other companies'
products. There can be no assurance that, as a result of past or future
operations, there will not be additional claims of injury by employees
or members of the public due to exposure, or alleged exposure, to such
materials. Furthermore, the Company also has exposure to present and
future claims with respect to workplace exposure, workers' compensation
and other matters, arising from events both prior to an after the
Spin-off. There can be no assurance as to the actual amount of these
liabilities or the timing thereof.
<PAGE>
CYTEC INDUSTRIES INC. AND SUBSIDIARIES
Item 2. Changes in Securities
(a) At the May 1997 annual meeting, shareholders of the Company
approved an amendment to the Company's certificate of incorporation to
increase the authorized common stock of the Company from 75 million to
150 million shares.
(c) During the second quarter of 1997, the Company sold put options to
an institutional investor in a series of private placements exempt from
registration under Section 4(2) of the Securities Act of 1933. The put
options entitled the holder to sell 300,000 shares of common stock of
the Company, to the Company, at prices ranging from $37.63 to $38.25.
These options expired unexercised during July 1997. The Company
received aggregate premiums of $0.5 on the sale of such options.
<PAGE>
CYTEC INDUSTRIES INC. AND SUBSIDIARIES
Item 4. Submission of Matters to a Vote of Security Holders
The Company held its annual meeting of Common Stockholders on May 12,
1997. At this meeting, the stockholders voted on (i) the election of
Directors, (ii) amendment to the Certificate of Incorporation
increasing the number of authorized shares of common stock to 150
million shares, and (iii) amendments to the 1993 Stock Award and
Incentive Plan.
(a) Election of Directors
Messrs. F.W. Armstrong and G.A. Burns were each elected Directors by
the following margins:
Shares
Name Votes For Votes Withheld Not Voted
---- --------- -------------- ---------
F.W. Armstrong 38,259,731 359,970 6,900,321
G.A. Burns 38,248,784 370,917 6,900,321
In addition, Mr. L.L. Hoynes, Jr. was re-elected to the Board by the
unanimous written consent of the sole holder of the Company's Series C
Cumulative Preferred Stock.
The terms of office as Director of D.D. Fry, D. Lilley, W.P. Powell and
J.R. Satrum continue after meeting.
(b) Amendment to Certificate of Incorporation
The stockholders voted to increase the authorized common stock from 75
million shares to 150 million shares by the following margins:
Shares
Votes For Votes Against Abstentions Not Voted
--------- ------------- ----------- ---------
35,470,916 2,828,524 320,261 6,900,321
(c) The stockholders voted to amend the 1993 Stock Award and Incentive Plan
by the following margins:
Shares
Votes For Votes Against Abstentions Not Voted
--------- ------------- ----------- ---------
30,563,173 7,684,750 371,778 6,900,321
<PAGE>
CYTEC INDUSTRIES INC. AND SUBSIDIARIES
Item 6. Exhibits and Reports on Form 8-K
(a). Exhibits
3.1(a) Certificate of Amendment to Certificate of Incorporation
10.12 Second Amended and Restated Credit Agreement, dated as of July
29, 1997
11(a) Earnings Per Share computations for the three months ended
June 30, 1997
11(b) Earnings Per Share computations for the three months ended
June 30, 1996
11(c) Earnings Per Share computations for the six months ended June
30, 1997
11(d) Earnings Per Share computations for the six months ended June
30, 1996
12 Computation of Ratio of Earnings to Fixed Charges for the
three and six months ended June 30, 1997 and 1996
27 Financial Data Schedule
99(a) Material incorporated by reference from Annual Report on Form
10-K
(b). No reports on Form 8-K were filed for the quarter ended June
30, 1997.
SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
CYTEC INDUSTRIES INC.
(REGISTRANT)
BY: /s/James P. Cronin
-------------------------
James P. Cronin
Executive Vice President and Chief Financial Officer
August 12, 1997
<PAGE>
EXHIBIT INDEX
Exhibits
3.1(a) Certificate of Amendment to Certificate of Incorporation
10.12 Second Amended and Restated Credit Agreement, dated as of July
29, 1997
11(a) Earnings Per Share computations for the three months ended
June 30, 1997
11(b) Earnings Per Share computations for the three months ended
June 30, 1996
11(c) Earnings Per Share computations for the six months ended June
30, 1997
11(d) Earnings Per Share computations for the six months ended June
30, 1996
12 Computation of Ratio of Earnings to Fixed Charges for the
three and six months ended June 30, 1997 and 1996
27 Financial Data Schedule
99(a) Material incorporated by reference from Annual Report on Form
10-K
<PAGE>
Exhibit 3.1(a)
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
CYTEC INDUSTRIES INC.
Cytec Industries Inc. (the "Corporation"), a corporation organized and existing
under and by virtue of the Delaware General Corporation Law,
DOES HEREBY CERTIFY:
FIRST: The following amendment was approved by the board of directors of the
Corporation at a meeting duly held, and thereafter submitted for approval to the
Corporation's stockholders and duly adopted by the affirmative vote of
stockholders of the Corporation holding a majority of the outstanding shares of
each class of stock entitled to vote thereon, all in accordance with Section 242
and the other applicable provisions of the Delaware General Corporation Law:
The first paragraph of Article FOURTH of the Certificate of
Incorporation is hereby amended and restated in its entirety to read as follows:
"FOURTH: The total number of shares of stock which the Corporation shall have
the authority to issue is 170 million, consisting of 150 million shares of
common stock, par value $0.01 per share (the "Common Stock"), and 20 million
shares of preferred stock, par value $0.01 per share (the "Preferred Stock")."
IN WITNESS WHEREOF, this Corporation has caused this certificate to be duly
executed by an authorized officer thereof, this 13th day of May, 1997.
CYTEC INDUSTRIES INC.
By:/s/ E. F. Jackman
-----------------------------
Edward F. Jackman
Vice President
<PAGE>
Exhibit 10.12
CONFORMED COPY
U.S. $200,000,000
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of July 29, 1997
Among
CYTEC INDUSTRIES INC.,
as Borrower,
and
THE BANKS NAMED HEREIN,
as Banks,
and
CITIBANK, N.A.,
as Agent
<PAGE>
T A B L E O F C O N T E N T S
<TABLE>
<CAPTION>
Section Page
<S> <C> <C>
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01. Certain Defined Terms................................................................................1
1.02. Computation of Time Periods.........................................................................15
1.03. Accounting Terms....................................................................................15
1.04. Currency Equivalents Generally......................................................................15
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
2.01. The Revolving Advances..............................................................................15
2.02. Making the Revolving Advances.......................................................................16
2.03. Fees................................................................................................18
2.04. Reduction or Termination of the Commitments.........................................................18
2.05. Repayment of Revolving Advances.....................................................................18
2.06. Interest on Revolving Advances......................................................................18
2.07. Interest Rate Determination.........................................................................19
2.08. Voluntary Conversion of Revolving Advances..........................................................20
2.09. Prepayments of Revolving Advances...................................................................20
2.10. Increased Costs.....................................................................................20
2.11. Illegality..........................................................................................22
2.12. Payments and Computations...........................................................................22
2.13. Taxes...............................................................................................24
2.14. Sharing of Payments, Etc............................................................................25
2.15. The Competitive Bid Advances........................................................................26
2.17. Voluntary Redenomination of Revolving Advances......................................................30
2.18. Currency Equivalents................................................................................30
2.19. Evidence of Debt....................................................................................31
2.20. Use of Proceeds.....................................................................................32
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
3.01. Conditions Precedent to Effectiveness of Sections 2.01 and 2.15.....................................32
3.02. Additional Conditions Precedent to Effectiveness....................................................33
3.03. Conditions Precedent to Each Revolving Borrowing....................................................33
3.04. Conditions Precedent to Each Competitive Bid Borrowing..............................................34
3.05. Determinations Under Sections 3.01 and 3.02.........................................................34
3.06. Notice of Effective Date............................................................................34
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.01. Representations and Warranties of the Borrower......................................................35
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Section Page
<S> <C> <C>
ARTICLE V
COVENANTS OF THE BORROWER
5.01. Affirmative Covenants...............................................................................38
5.02. Negative Covenants..................................................................................42
5.03. Financial Covenants.................................................................................45
ARTICLE VI
EVENTS OF DEFAULT
6.01. Events of Default...................................................................................46
ARTICLE VII
THE AGENT
7.01. Authorization and Action............................................................................49
7.02. Agent's Reliance, Etc...............................................................................49
7.03. Citibank and Affiliates.............................................................................49
7.04. Lender Credit Decision..............................................................................50
7.05. Indemnification.....................................................................................50
7.06. Successor Agent.....................................................................................50
ARTICLE VIII
MISCELLANEOUS
8.01. Amendments, Etc.....................................................................................51
8.02. Notices, Etc........................................................................................51
8.03. No Waiver; Remedies.................................................................................52
8.04. Costs and Expenses..................................................................................52
8.05. Right of Setoff.....................................................................................53
8.06. Binding Effect......................................................................................53
8.07. Assignments, Designations and Participations........................................................53
8.08. Confidentiality.....................................................................................57
8.09. Governing Law.......................................................................................57
8.10. Execution in Counterparts...........................................................................57
8.11. Jurisdiction, Etc...................................................................................58
8.12. Judgment............................................................................................58
8.13. Effective Date Assignments; Etc.....................................................................58
8.14. Waiver of Jury Trial................................................................................60
</TABLE>
<PAGE>
Schedules
Schedule I - List of Applicable Lending Offices
Schedule 3.01(b) - Disclosed Litigation
Schedule 4.01(h) - Environmental Laws Disclosure
Schedule 4.01(i) - Environmental Investigation and Clean-up Properties
Schedule 4.01(j) - Hazardous Materials
Schedule 5.01(j) - Transactions with Affiliates
Schedule 5.02(a) - Existing Liens
Schedule 5.02(b) - Existing Debt
Schedule 8.13 - Existing Lenders, Existing Commitments and Existing
Advances
Exhibits
Exhibit A-1 - Form of Revolving Promissory Note
Exhibit A-2 - Form of Competitive Bid Promissory Note
Exhibit B-1 - Form of Notice of Revolving Borrowing
Exhibit B-2 - Form of Notice of Competitive Bid Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Designation Agreement
Exhibit E - Form of Notice of Redenomination
Exhibit F-1 - Form of Opinion of Special New York Counsel to the
Borrower
Exhibit F-2 - Form of Opinion of General Counsel of the Borrower
The Company agrees to furnish supplementally to the Commission any and all of
the foregoing schedules and exhibits upon request.
<PAGE>
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of July 29, 1997
CYTEC INDUSTRIES INC., a Delaware corporation (the
"Borrower"), the banks (the "Banks") listed on the signature pages hereof and
CITIBANK, N.A. ("Citibank"), as agent (the "Agent") for the Lenders hereunder,
agree as follows:
PRELIMINARY STATEMENTS. The Borrower entered into an Amended
and Restated Credit Agreement dated as of June 1, 1995 (as amended by Amendment
No. 1 and Consent thereto dated August 22, 1995, Amendment No. 2 thereto dated
April 19, 1996, Amendment No. 3 thereto dated June 15, 1996, Amendment No. 4
thereto dated November 1, 1996 and Amendment No. 5 thereto dated March 6, 1997,
the "Existing Credit Agreement") with certain lenders party thereto (the
"Existing Lenders") and Citibank, as agent for the Existing Lenders. The
Borrower has requested that the Banks and the Agent amend and restate the
Existing Credit Agreement as hereinafter set forth, and the Banks and the Agent
have agreed to do so.
NOW, THEREFORE, in consideration of the premises and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto hereby agree that as of the Effective Date, the
Existing Credit Agreement is hereby amended and restated as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings (such meanings
to be equally applicable to both the singular and plural forms of the terms
defined):
"Advance" means a Revolving Advance or a Competitive Bid
Advance.
"Affiliate" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person or is a director or officer of such Person.
For purposes of this definition, the term "control" (including the
terms "controlling", "controlled by" and "under common control with")
of a Person means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of such
Person, whether through the ownership of Voting Stock, by contract or
otherwise, or, in the case of an Affiliate of the Borrower, to vote 20%
or more of the Voting Stock of such Person.
"Agreement Value" means, for any Hedge Agreement on any date
of determination, the amount, if any, that would be payable to the
Hedge Bank party to such Hedge Agreement in respect of "agreement
value" as though such Hedge Agreement were terminated on such date,
calculated as provided in such Hedge Agreement.
<PAGE>
"Alternative Currency" means lawful money of Great Britain,
lawful money of the Netherlands or lawful money of Japan, or any other
lawful currency other than Dollars that is freely transferable and
convertible into Dollars as the Borrower, with the consent of the
Required Lenders and the Agent, shall designate.
"American Home Products" means American Home Products
Corporation, a Delaware corporation.
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of a Base
Rate Advance and such Lender's Eurocurrency Lending Office in the case
of a Eurocurrency Rate Advance and, in the case of a Competitive Bid
Advance, the office of such Lender notified by such Lender to the Agent
as its Applicable Lending Office with respect to such Competitive Bid
Advance.
"Applicable Margin" means, as of any date of determination, a
percentage per annum determined by reference to the Public Debt Rating
in effect on such date as set forth below:
================================================================================
Public Debt Rating Applicable Margin
(S&P/Moody's)
- --------------------------------------------------------------------------------
Level 1 .150%
-------
A/A2 or Above
- --------------------------------------------------------------------------------
Level 2 .185%
-------
Lower than A/A2 but at least
BBB+/Baa1
- --------------------------------------------------------------------------------
Level 3 .215%
-------
Lower than BBB+/Baa1 but at least
BBB/Baa2
- --------------------------------------------------------------------------------
Level 4 .275%
-------
Lower than BBB/Baa2 but at least
BBB-/Baa3
- --------------------------------------------------------------------------------
Level 5 .325%
-------
Lower than BBB-/Baa3 or no Public
Debt Rating in effect
================================================================================
"Applicable Percentage" means, as of any date of
determination, a percentage per annum determined by reference to the
Public Debt Rating in effect on such date as set forth below:
- --------------------------------------------------------------------------------
Public Debt Rating Applicable Percentage
(S&P/Moody's)
- --------------------------------------------------------------------------------
Level 1 .0700%
-------
A/A2 or Above
- --------------------------------------------------------------------------------
<PAGE>
- --------------------------------------------------------------------------------
Level 2 .0900%
-------
Lower than A/A2 but at least BBB+/Baa1
- --------------------------------------------------------------------------------
Level 3 .1100%
-------
Lower than BBB+/Baa1 but at least BBB/Baa2
- --------------------------------------------------------------------------------
Level 4 .1250%
-------
Lower than BBB/Baa2 but at least BBB-/Baa3
- --------------------------------------------------------------------------------
Level 5 .1750%
-------
Lower than BBB-/Baa3 or no Public Debt Rating in
effect
- --------------------------------------------------------------------------------
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Agent, in substantially the form of Exhibit C hereto.
"Acquired Debt" has the meaning specified in Section
5.02(b)(vi).
"Base Rate" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be
equal to the highest of:
(a) the rate of interest announced publicly by
Citibank in New York, New York, from time to time, as
Citibank's base rate;
(b) the sum (adjusted to the nearest 1/4 of 1% or, if
there is no nearest 1/4 of 1%, to the next higher 1/4 of 1%)
of (i) 1/2 of 1% per annum, plus (ii) the rate obtained by
dividing (A) the latest three-week moving average of secondary
market morning offering rates in the United States for
three-month certificates of deposit of major United States
money market banks, such three-week moving average (adjusted
to the basis of a year of 360 days) being determined weekly on
each Monday (or, if such day is not a Business Day, on the
next succeeding Business Day) for the three-week period ending
on the previous Friday by Citibank on the basis of such rates
reported by certificate of deposit dealers to and published by
the Federal Reserve Bank of New York or, if such publication
shall be suspended or terminated, on the basis of quotations
for such rates received by Citibank from three New York
certificate of deposit dealers of recognized standing selected
by Citibank, by (B) a percentage equal to 100% minus the
average of the daily percentages specified during such
three-week period by the Board of Governors of the Federal
Reserve System (or any successor) for determining the maximum
reserve requirement (including, but not limited to, any
emergency, supplemental or other marginal reserve requirement)
for Citibank with respect to liabilities consisting of or
including (among other liabilities) three-month U.S. dollar
non-personal time deposits in the United States, plus (iii)
the average during such three-week period of the annual
assessment rates estimated by Citibank for determining the
then current annual assessment payable by Citibank to the
Federal Deposit Insurance Corporation (or any successor) for
insuring U.S. dollar deposits of Citibank in the United
States; and
<PAGE>
(c) 1/2 of 1% per annum above the Federal Funds Rate.
"Base Rate Advance" means a Revolving Advance denominated in
Dollars which bears interest as provided in Section 2.06(a)(i).
"Borrowing" means a Revolving Borrowing or a Competitive Bid
Borrowing.
"Business Day" means a day of the year on which banks are not
required or authorized to close in New York City and, if the applicable
Business Day relates to any Eurocurrency Rate Advances, on which
dealings are carried on in the London interbank market and banks are
open for business in London and in the country of issue of the currency
of such Eurocurrency Rate Advance.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980.
"CERCLIS" means the Comprehensive Environmental Response,
Compensation and Liability Information System maintained by the U.S.
Environmental Protection Agency.
"Commitment" has the meaning specified in Section 2.01(a)(ii).
"Competitive Bid Advance" means an advance by a Lender to the
Borrower as part of a Competitive Bid Borrowing resulting from the
competitive bidding procedure described in Section 2.15 and refers to a
Fixed Rate Advance or a LIBO Rate Advance.
"Competitive Bid Borrowing" means a borrowing consisting of
simultaneous Competitive Bid Advances from each of the Lenders whose
offer to make one or more Competitive Bid Advances as part of such
borrowing has been accepted under the competitive bidding procedure
described in Section 2.15.
"Competitive Bid Note" means a promissory note of the Borrower
payable to the order of any Lender, in substantially the form of
Exhibit A-2 hereto, evidencing the indebtedness of the Borrower to such
Lender resulting from a Competitive Bid Advance made by such Lender.
"Competitive Bid Reduction" has the meaning specified in
Section 2.01(a)(ii).
"Confidential Information" means information that the Borrower
furnishes to the Agent or any Lender on a confidential basis, but does
not include any such information that is or becomes generally available
to the public or that is or becomes available to the Agent or such
Lender from a source other than the Borrower.
"Consolidated" refers to the consolidation of accounts in
accordance with GAAP.
"Convert", "Conversion" and "Converted" each refers to a
conversion of all or any portion of Revolving Advances of one Type into
Revolving
<PAGE>
Advances of the other Type, or in the case of Eurocurrency Rate
Advances, into Revolving Advances with a different Interest Period,
pursuant to Section 2.07, 2.08 or 2.11.
"Cyanamid" means American Cyanamid Company, a Maine
corporation and a wholly owned Subsidiary of American Home Products.
"Debt" of any Person means (a) all indebtedness of such Person
for borrowed money, (b) all obligations of such Person for the deferred
purchase price of property or services (other than trade payables not
overdue by more than 60 days incurred in the ordinary course of such
Person's business), (c) all obligations of such Person evidenced by
notes, bonds, debentures or other similar instruments, (d) all
obligations of such Person created or arising under any conditional
sale or other title retention agreement with respect to property
acquired by such Person (even though the rights and remedies of the
seller or lender under such agreement in the event of default are
limited to repossession or sale of such property), (e) all obligations
of such Person as lessee under leases that have been or should be, in
accordance with GAAP, recorded as capital leases ("Capitalized
Leases"), valued at the amount that is or should be capitalized as
required by GAAP, (f) all obligations, contingent or otherwise, of such
Person under acceptance, letter of credit or similar facilities, (g)
all Debt of others referred to in clauses (a) through (f) above
guaranteed directly or indirectly in any manner by such Person, or in
effect guaranteed directly or indirectly by such Person through an
agreement (i) to pay or purchase such Debt or to advance or supply
funds for the payment or purchase of such Debt, (ii) to purchase, sell
or lease (as lessee or lessor) property, or to purchase or sell
services, primarily for the purpose of enabling the debtor to make
payment of such Debt or to assure the holder of such Debt against loss,
(iii) to supply funds to or in any other manner invest in the debtor
(including any agreement to pay for property or services irrespective
of whether such property is received or such services are rendered) or
(iv) otherwise to assure a creditor against loss, and (h) all Debt of
others referred to in clauses (a) through (f) above secured by (or for
which the holder of such Debt has an existing right, contingent or
otherwise, to be secured by) any Lien on property (including, without
limitation, accounts and contract rights) owned by such Person, even
though such Person has not assumed or become liable for the payment of
such Debt, provided, however, that the amount of any Debt included in
this clause (h) shall be limited to the greater of the book value and
the fair market value of the property on which such Lien is granted.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"Designated Bidder" means (a) an Eligible Assignee or (b) a
special purpose corporation that is engaged in making, purchasing or
otherwise investing in commercial loans in the ordinary course of its
business and that issues (or the parent of which issues) commercial
paper rated at least "Prime-1" (or the then equivalent grade) by
Moody's or "A-1" (or the then equivalent grade) by S&P that, in the
case of either clause (a) or (b), (i) is organized under the laws of
the United States or any State
<PAGE>
thereof, (ii) shall have become a party hereto pursuant to Section
8.07(d), (e) and (f) and (iii) is not otherwise a Lender.
"Designation Agreement " means a designation agreement entered
into by a Lender (other than a Designated Bidder) and a Designated
Bidder, and accepted by the Agent, in substantially the form of Exhibit
D hereto.
"Disclosed Litigation" has the meaning specified in Section
3.01(b).
"Dollars" and the "$" sign each means lawful money of the
United States.
"Domestic Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Domestic Lending Office"
opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender, or such other office
of such Lender as such Lender may from time to time specify to the
Borrower and the Agent.
"EBITDA" means, for any period, net income (or net loss) plus
the sum of (a) interest expense, (b) income tax expense, (c)
depreciation expense, (d) amortization expense, (e) other
post-retirement benefits expense and (f) extraordinary or non-recurring
losses included in determining such net income (or net loss), less the
sum of (i) accrued interest income not received in cash and (ii)
extraordinary or non-recurring gains included in determining such net
income (or net loss), in each case determined in accordance with GAAP
for such period.
"Effective Date" means the first date on which the conditions
set forth in Sections 3.01 and 3.02 have been fulfilled.
"Eligible Assignee" means (i) a Lender, (ii) an Affiliate of a
Lender and (iii) any other Person approved by the Agent and the
Borrower, such approval not to be unreasonably withheld.
"Environmental Action" means any administrative, regulatory or
judicial action, suit, demand, demand letter, claim, notice of
non-compliance or violation, proceeding, consent order or consent
agreement relating in any way to any Environmental Law, Environmental
Permit or Hazardous Materials or arising from alleged injury or threat
of injury to health, safety or the environment, including, without
limitation, (a) by any governmental or regulatory authority for
enforcement, cleanup, removal, response, remedial or other actions or
damages and (b) by any governmental or regulatory authority or any
third party for damages, contribution, indemnification, cost recovery,
compensation or injunctive relief.
"Environmental Law" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, judgment,
decree or judicial or agency interpretation, policy or guidance
relating to the environment, health, safety or Hazardous Materials.
"Environmental Permit" means any permit, approval, license or
other authorization required under any Environmental Law.
<PAGE>
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title
IV of ERISA is a member of the Borrower's controlled group, or under
common control with the Borrower, within the meaning of Section 414 of
the Internal Revenue Code.
"ERISA Event" means (a) (i) the occurrence of a reportable
event, within the meaning of Section 4043 of ERISA, with respect to any
Plan unless the 30-day notice requirement with respect to such event
has been waived by the PBGC or the penalty with respect to a failure to
provide notice has been waived, or (ii) the requirements of subsection
(1) of Section 4043(b) of ERISA (without regard to subsection (2) of
such Section) are met with respect to a contributing sponsor, as
defined in Section 4001(a)(13) of ERISA, of a Plan, and an event
described in paragraph (9), (10), (11), (12) or (13) of Section 4043(c)
of ERISA is reasonably expected to occur with respect to such Plan
within the following 30 days; (b) the provision by the administrator of
any Plan of a notice of intent to terminate such Plan, pursuant to
Section 4041(a)(2) of ERISA (including any such notice with respect to
a plan amendment referred to in Section 4041(e) of ERISA); (c) the
cessation of operations at a facility of the Borrower or any of its
ERISA Affiliates in the circumstances described in Section 4062(e) of
ERISA; (d) the withdrawal by the Borrower or any of its ERISA
Affiliates from a Multiple Employer Plan during a plan year for which
it was a substantial employer, as defined in Section 4001(a)(2) of
ERISA; (e) the failure by the Borrower or any of its ERISA Affiliates
to make a payment to a Plan required under Section 302(f)(1) of ERISA;
(f) the adoption of an amendment to a Plan requiring the provision of
security to such Plan, pursuant to Section 307 of ERISA; or (g) the
institution by the PBGC of proceedings to terminate a Plan, pursuant to
Section 4042 of ERISA, or the occurrence of any event or condition
described in Section 4042 of ERISA that could constitute grounds for
the termination of, or the appointment of a trustee to administer, a
Plan, provided, however, that an event or condition described in
Section 4042(a)(4) of ERISA shall be an ERISA Event only if the
Borrower or any ERISA Affiliate knows or has reason to know thereof.
"Eurocurrency Lending Office" means, with respect to any
Lender, the office of such Lender specified as its "Eurocurrency
Lending Office" opposite its name on Schedule I hereto or in the
Assignment and Acceptance pursuant to which it became a Lender (or, if
no such office is specified, its Domestic Lending Office), or such
other office of such Lender as such Lender may from time to time
specify to the Borrower and the Agent.
"Eurocurrency Liabilities" has the meaning assigned to that
term in Regulation D of the Board of Governors of the Federal Reserve
System, as in effect from time to time.
"Eurocurrency Rate" means, for any Interest Period for each
Eurocurrency Rate Advance comprising part of the same Revolving
Borrowing, an interest rate per annum equal to the rate per annum at
which deposits in Dollars or in the relevant Alternative Currency are
offered by the
<PAGE>
principal office of Citibank in London, England to prime banks in the
London interbank market at 11:00 A.M. (London time) two Business Days
before the first day of such Interest Period in an amount substantially
equal to Citibank's Eurocurrency Rate Advance comprising part of such
Revolving Borrowing to be outstanding during such Interest Period and
for a period equal to such Interest Period.
"Eurocurrency Rate Advance" means a Revolving Advance
denominated in Dollars or in an Alternative Currency which bears
interest as provided in Section 2.06(a)(ii).
"Eurocurrency Rate Reserve Percentage" of any Lender for any
Interest Period for all Eurocurrency Rate Advances or LIBO Rate
Advances comprising part of the same Borrowing means the reserve
percentage applicable during such Interest Period (or if more than one
such percentage shall be so applicable, the daily average of such
percentages for those days in such Interest Period during which any
such percentage shall be so applicable) under regulations issued from
time to time by the Board of Governors of the Federal Reserve System
(or any successor) for determining the maximum reserve requirement
(including, without limitation, any emergency, supplemental or other
marginal reserve requirement) for such Lender with respect to
liabilities or assets consisting of or including Eurocurrency
Liabilities (or with respect to any other category of liabilities that
includes deposits by reference to which the interest rate on
Eurocurrency Rate Advances or LIBO Rate Advances is determined) having
a term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Existing Advance" means, for each Existing Lender, all of
such Existing Lender's rights in and to, and all of its obligations
under, the Advances (as defined in the Existing Credit Agreement) owing
to it under the Existing Credit Agreement, the aggregate amount of
which for each Existing Lender is set forth opposite its name on
Schedule 8.13 hereto.
"Existing Commitment" means, for each Existing Lender, all of
such Existing Lender's rights in and to, and all of its obligations
under, the Commitment (as defined in the Existing Credit Agreement)
held by it under the Existing Credit Agreement, the aggregate amount of
which for each Existing Lender is set forth opposite its name on
Schedule 8.13 hereto.
"Existing Credit Agreement" has the meaning specified in the
Preliminary Statements.
"Existing Lenders" has the meaning specified in the
Preliminary Statements.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day which is
a Business Day, the
<PAGE>
average of the quotations for such day on such transactions received by
the Agent from three Federal funds brokers of recognized standing
selected by it.
"Fixed Charge Coverage Ratio" means, at any time, for any
period, the ratio of (x) the sum of (i) Consolidated EBITDA of the
Borrower and its Subsidiaries, (ii) cash expenditures for environmental
remediation and (iii) cash expenditures for benefit payments for other
post-retirement benefits made by the Borrower directly to retirees of
the Borrower or any of its Subsidiaries or to any VEBA (to the extent
not expensed during such period) to (y) the sum of (i) cash interest
expense, (ii) cash expenditures for environmental remediation, (iii)
cash expenditures for benefit payments for other post-retirement
benefits made by the Borrower directly to retirees of the Borrower or
any of its Subsidiaries or to any VEBA and (iv) dividends accrued or
paid on the Series C Preferred Stock, in each case, during such period.
"Fixed Rate Advance" has the meaning specified in Section
2.15(a)(i), which Advance shall be denominated in Dollars.
"Foreign Currency" means lawful currency other than Dollars
which is freely transferable and convertible into Dollars.
"Funded Debt" of any Person means Debt in respect of the
Advances, in the case of the Borrower, and all other Debt of such
Person that by its terms matures more than one year after the date of
its creation or matures within one year from such date but is renewable
or extendible, at the option of such Person, to a date more than one
year after such date or arises under a revolving credit or similar
agreement that obligates the lender or lenders to extend credit during
a period of more than one year after such date, including, without
limitation, all amounts of Funded Debt of such Person required to be
paid or prepaid within one year after the date of its creation, the
current portion of all long-term Debt and all short-term Debt for
borrowed money.
"GAAP" has the meaning specified in Section 1.03.
"Hazardous Materials" means petroleum and petroleum products,
radioactive materials, asbestos-containing materials, radon gas and any
other chemicals, materials or substances designated, classified or
regulated as being "hazardous" or "toxic", or words of similar import,
under any federal, state, local or foreign statute, law, ordinance,
rule, regulation, code, order, judgment, decree or judicial or agency
interpretation, policy or guidance.
"Hedge Agreements" means 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 (other than non-financial commodities contracts).
"Hedge Bank" means any financial institution with which the
Borrower has entered into a Hedge Agreement.
"Interest Period" means, for each Eurocurrency Rate Advance
<PAGE>
comprising part of the same Revolving Borrowing and each LIBO Rate
Advance comprising part of the same Competitive Bid Borrowing, the
period commencing on the date of such Eurocurrency Rate Advance or LIBO
Rate Advance or the date of the Conversion of any Base Rate Advance
into such Eurocurrency Rate Advance and ending on the last day of the
period selected by the Borrower pursuant to the provisions below and,
thereafter, with respect to Eurocurrency Rate Advances, each subsequent
period commencing on the last day of the immediately preceding Interest
Period and ending on the last day of the period selected by the
Borrower pursuant to the provisions below. The duration of each such
Interest Period shall be one, two, three or six months, as the Borrower
may, upon notice received by the Agent not later than 11:00 A.M. (New
York City time) on the third Business Day prior to the first day of
such Interest Period, select; provided, however, that:
(i) the Borrower may not select any Interest Period
which ends after the Termination Date;
(ii) Interest Periods commencing on the same date for
Eurocurrency Rate Advances comprising part of the same
Revolving Borrowing or for LIBO Rate Advances comprising part
of the same Competitive Bid Borrowing shall be of the same
duration;
(iii) whenever the last day of any Interest Period
would otherwise occur on a day other than a Business Day, the
last day of such Interest Period shall be extended to occur on
the next succeeding Business Day, provided, however, that, if
such extension would cause the last day of such Interest
Period to occur in the next following calendar month, the last
day of such Interest Period shall occur on the next preceding
Business Day; and
(iv) whenever the first day of any Interest Period
occurs on a day of an initial calendar month for which there
is no numerically corresponding day in the calendar month that
succeeds such initial calendar month by the number of months
equal to the number of months in such Interest Period, such
Interest Period shall end on the last Business Day of such
succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"Lenders" means the Banks listed on the signature pages hereof
and each Person that shall become a party hereto pursuant to Section
8.07(a), (b) and (c) and, except when used in reference to a Revolving
Advance, a Revolving Borrowing, a Revolving Note, a Commitment or a
related term, each Designated Bidder.
"Leverage Ratio" means, at any time, the ratio of (a) Total
Debt to (b) the sum of (i) Total Debt plus (ii) gross long-term
liabilities incurred in connection with "expected post retirement
benefit obligations" within the meaning of Statement of Financial
Accounting Standards No. 106 plus (iii) shareholders' equity of the
Borrower, in each case, of the Borrower and its Subsidiaries as of the
last day of the immediately
<PAGE>
preceding fiscal quarter of the Borrower as determined on a
Consolidated basis in accordance with GAAP.
"LIBO Rate" means, for any Interest Period for all LIBO Rate
Advances comprising part of the same Competitive Bid Borrowing, an
interest rate per annum equal to the rate per annum at which deposits
in Dollars are offered by the principal office of Citibank in London,
England to prime banks in the London interbank market at 11:00 A.M.
(London time) two Business Days before the first day of such Interest
Period in an amount substantially equal to the amount that would be
Citibank's ratable share of such Borrowing if such Borrowing were to be
a Revolving Borrowing to be outstanding during such Interest Period and
for a period equal to such Interest Period.
"LIBO Rate Advance" has the meaning specified in Section
2.15(a)(i), which Advance shall be denominated in Dollars.
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance
on title to real property.
"Material Adverse Change" means any material adverse change in
the business, condition (financial or otherwise), operations or
properties of the Borrower and its Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect on
(a) the business, condition (financial or otherwise), operations or
properties of the Borrower and its Subsidiaries taken as a whole, (b)
the rights and remedies of the Agent or any Lender under this Agreement
or any Note or (c) the ability of the Borrower to perform its
obligations under this Agreement or any Note.
"Material Subsidiary" means, at any time, a Subsidiary of the
Borrower having at least 3% of the total Consolidated assets of the
Borrower and its Subsidiaries (determined as of the last day of the
most recent fiscal quarter of the Borrower) or at least 3% of the total
Consolidated revenues of the Borrower and its Subsidiaries for the
twelve month period ending on the last day of the most recent fiscal
quarter of the Borrower.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which the Borrower or any of its ERISA
Affiliates (other than one considered an ERISA Affiliate only pursuant
to subsection (m) or (o) of Section 414 of the Internal Revenue Code)
is making or accruing an obligation to make contributions, or has
within any of the preceding five plan years made or accrued an
obligation to make contributions.
"Multiple Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of the
<PAGE>
Borrower or any of its ERISA Affiliates and at least one Person other
than the Borrower and its ERISA Affiliates or (b) was so maintained and
in respect of which the Borrower or any of its ERISA Affiliates could
have liability under Section 4064 or 4069 of ERISA in the event such
plan has been or were to be terminated.
"Note" means a Revolving Note or a Competitive Bid Note.
"Notice of Competitive Bid Borrowing" has the meaning
specified in Section 2.15(a).
"Notice of Revolving Borrowing" has the meaning specified in
Section 2.02(a).
"Original Currency" has the meaning specified in Section 8.12.
"Other Currency" has the meaning specified in Section 8.12.
"Payment Office" means, for any Alternative Currency, such
office of Citibank as shall be from time to time selected by the Agent
and notified by the Agent to the Borrower and the Lenders.
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor.
"Permitted Liens" means such of the following as to which (i)
(A) no enforcement or collection proceeding shall have been commenced
or, if any such proceeding has been commenced, it is being contested in
good faith and by proper proceedings and as to which adequate reserves
are being maintained and (B) no execution, levy or foreclosure
proceeding shall have been commenced or, if any such proceeding has
been commenced, it is being contested in good faith, by proper
proceedings, adequate reserves with respect thereto are being
maintained and there shall not be any period of 30 consecutive days
during which a stay shall not be in effect or (ii) the amount secured
thereby does not exceed, individually or in the aggregate, $10,000,000
(or the equivalent thereof in any Alternative Currency): (a) Liens for
taxes, assessments and governmental charges or levies to the extent not
required to be paid under Section 5.01(b) hereof; (b) Liens imposed by
law, such as materialmen's, mechanics', carriers', workmen's,
warehousemen's and repairmen's Liens and other similar Liens arising in
the ordinary course of business securing obligations that are not
overdue for a period of more than 30 days other than by reason of a
contest as permitted above; (c) pledges or deposits to secure
obligations under workers' compensation or unemployment insurance laws
or other social security laws and legislation or to secure public or
statutory obligations; (d) easements, zoning restrictions, rights of
way and other encumbrances on title to real property that do not render
title to the property encumbered thereby unmarketable or materially
adversely affect the use of such property for its present purposes; and
(e) pledges or deposits to secure the performance of bids, trade
contracts, leases (other than Capitalized Leases), surety or appeal
bonds or other obligations of a like nature incurred in the ordinary
course of business.
"Person" means an individual, partnership, corporation
(including a
<PAGE>
business trust), joint stock company, trust, unincorporated
association, joint venture, limited liability company or other entity,
or a government or any political subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer
Plan.
"Preferred Stock" means, with respect to any corporation,
capital stock issued by such corporation that is entitled to a
preference or priority over any other capital stock issued by such
corporation upon any distribution of such corporation's assets, whether
by dividend or upon liquidation.
"Public Debt Rating" means, as of any date of determination,
the higher of the ratings most recently announced by S&P and Moody's
for any class of non-credit enhanced long term senior unsecured public
debt issued by the Borrower or, if no such ratings have been announced,
the rating most recently assigned by S&P or Moody's, as the case may
be, to the Borrower's "implied senior debt", as notified in writing
from S&P or Moody's, as the case may be, to the Borrower. For purposes
of the foregoing, (a) if only one of S&P and Moody's shall have in
effect a Public Debt Rating, the Applicable Margin and the Applicable
Percentage shall be determined by reference to the available rating;
(b) if neither S&P nor Moody's shall have in effect a Public Debt
Rating, the Applicable Margin and Applicable Percentage will be set in
accordance with level 5 under the definition of "Applicable Margin" or
"Applicable Percentage", as the case may be; (c) if the ratings
established by S&P and Moody's shall fall within different levels, the
Applicable Margin and the Applicable Percentage shall be based upon the
higher rating, except that in the event that the lower of such ratings
is more than one level below the higher of such ratings, the Applicable
Margin and the Applicable Percentage will be determined based on the
level immediately above the lower of such ratings; (d) if any rating
established by S&P or Moody's shall be changed, such change shall be
effective as of the date on which such change is first announced
publicly by the rating agency making such change; and (e) if S&P or
Moody's shall change the basis on which ratings are established each
reference to the Public Debt Rating announced by S&P or Moody's, as the
case may be, shall refer to the then equivalent rating by S&P or
Moody's, as the case may be.
"Redenominate", "Redenomination" and "Redenominated" each
refers to the redenomination of each Revolving Advance comprising part
of the same Revolving Borrowing from Dollars into an Alternative
Currency or from an Alternative Currency into Dollars or another
Alternative Currency pursuant to Section 2.17.
"Register" has the meaning specified in Section 8.07(g).
"Responsible Officer" of any corporation means any executive
officer, treasurer or controller of such corporation and any other
officer thereof responsible for the administration of the obligations
of such corporation in respect of this Agreement.
"Required Lenders" means at any time Lenders owed at least 51%
of the then aggregate unpaid principal amount of the Revolving Advances
owing
<PAGE>
to Lenders or, if no such principal amount is then outstanding, Lenders
having at least 51% of the Commitments (provided that, for purposes
hereof, neither the Borrower, nor any of its Affiliates, if a Lender,
shall be included in (i) the Lenders holding such amount of the
Revolving Advances or having such amount of the Commitments or (ii)
determining the aggregate unpaid principal amount of the Revolving
Advances or the total Commitments).
"Revolving Advance" means an advance by a Lender to the
Borrower as part of a Revolving Borrowing, and refers to a Base Rate
Advance or a Eurocurrency Rate Advance (each of which shall be a "Type"
of Revolving Advance).
"Revolving Borrowing" means a borrowing consisting of
simultaneous Revolving Advances of the same Type made by each of the
Lenders pursuant to Section 2.01(a)(ii).
"Revolving Note" means a promissory note of the Borrower
payable to the order of any Lender, in substantially the form of
Exhibit A-1 hereto, evidencing the aggregate indebtedness of the
Borrower to such Lender resulting from the Revolving Advances made by
such Lender.
"S&P" means Standard & Poor's Ratings Group, a division of The
McGraw-Hill Companies, Inc.
"Series C Certificate" means the Certificate of Designations,
Preferences and Rights of Series C Cumulative Preferred Stock of the
Borrower, dated December 17, 1993, as amended.
"Series C Preferred Stock" means the capital stock of the
Borrower issued in accordance with the terms of the Series C
Certificate.
"Single Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of the Borrower or any of its ERISA Affiliates and no Person
other than the Borrower and its ERISA Affiliates or (b) was so
maintained and in respect of which the Borrower or any of its ERISA
Affiliates could have liability under Section 4069 of ERISA in the
event such plan has been or were to be terminated.
"Subsidiary" of any Person means any corporation, limited
liability company, partnership, joint venture, trust or estate (i) that
is, in accordance with GAAP, Consolidated in the Consolidated financial
statements of the Borrower or (ii) of which (or in which) more than 50%
of (a) the issued and outstanding capital stock having ordinary voting
power to elect a majority of the Board of Directors of such corporation
(irrespective of whether at the time capital stock of any other class
or classes of such corporation shall or might have voting power upon
the occurrence of any contingency), (b) the interest in the capital or
profits of such limited liability company, partnership or joint venture
or (c) the beneficial interest in such trust or estate is at the time
directly or indirectly owned or controlled by such Person, by such
Person and one or more of its other Subsidiaries or by one or more of
such Person's other Subsidiaries.
<PAGE>
"Termination Date" means the earlier of July 28, 2002 and the
date of termination in whole of the Commitments pursuant to Section
2.04 or 6.01.
"Total Debt" means, at any time, the sum of, without
duplication (a) Preferred Stock of the Borrower plus (b) Funded Debt
plus (c) long-term liabilities (other than Funded Debt and long-term
liabilities in respect of benefit payments for other post-retirement
benefits) plus (d) Debt of the Borrower or any of its Subsidiaries of
the type described in clause (g) or (h) of the definition of "Debt"
relating to Debt of Persons that are not Subsidiaries of the Borrower
in which the Borrower or any of its Subsidiaries has an equity interest
or of direct or indirect unconsolidated Subsidiaries of the Borrower,
in each case, of the Borrower and its Subsidiaries as of the last day
of the immediately preceding fiscal quarter of the Borrower as
determined on a Consolidated basis in accordance with GAAP.
"Type" has the meaning specified in the definition of
"Revolving Advance".
"United States" and "U.S." each means United States of
America.
"VEBA" means any trust organized by the Borrower as a
voluntary employee benefits association.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even though the right so to vote has been suspended by the
happening of such a contingency.
"Withdrawal Liability" has the meaning specified in Part I of
Subtitle E of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods. In this Agreement
in the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and "until"
each mean "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles consistent with those applied in the preparation
of the financial statements referred to in Section 4.01(e) ("GAAP"), provided,
however, that, if (a) any changes in accounting principles from those used in
the preparation of the Borrower's financial statements dated December 31, 1994
are required by the rules, regulations, pronouncements or opinions of the
Financial Accounting Standards Board or the American Institute of Certified
Public Accountants (or successors thereto or agencies with similar functions)
and are adopted by the Borrower with the agreement of its independent certified
public accountants and (b) such changes would affect (or result in a change in
the method of calculation of) any of the covenants set forth in Section 5.02 or
5.03, the parties hereto agree to enter into good-faith negotiations in order to
amend such provisions, in a manner satisfactory to the Required Lenders, to
<PAGE>
equitably reflect such changes with the intention that the criteria for
evaluating compliance with such covenants by the Borrower shall be the same
after such changes as if such changes had not been made; provided further,
however, that until the amendment of such provisions shall be agreed upon by the
Borrower and the Required Lenders, for purposes of determining compliance with
any covenant set forth in Sections 5.02 and 5.03, such terms shall be construed
in accordance with GAAP as in effect on the date of this Agreement applied on a
basis consistent with the application used in preparing the Borrower's audited
financial statements referred to in Section 4.01(e).
SECTION 1.04. Currency Equivalents Generally. For all purposes
of this Agreement other than Article II, the equivalent in any Alternative
Currency or any Foreign Currency of an amount in Dollars shall be determined at
the rate of exchange quoted by Citibank in New York City, at 9:00 A.M. (New York
City time) on the date of determination, to prime banks in New York City for the
spot purchase in the New York foreign exchange market of such amount of Dollars
with such Alternative Currency or such Foreign Currency, as the case may be.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Revolving Advances. (a) (i) Effective as of
the Effective Date, each Existing Lender hereby sells and assigns all of its
rights in and to, and all of its obligations under, each Existing Advance owing
to it and the Existing Commitment held by it to the Banks and each Bank hereby
purchases and assumes, pro rata based on such Bank's Commitment, all of the
Existing Lenders' rights in and to, and obligations under, the Existing Advances
and the Existing Commitments, the amounts of which are set forth opposite its
name on Schedule 8.13 hereto.
(ii) Each Lender severally agrees, on the terms and conditions
hereinafter set forth, to make Revolving Advances to the Borrower from time to
time on any Business Day during the period from the Effective Date until the
Termination Date in an aggregate amount (determined in Dollars) not to exceed at
any time outstanding the Dollar amount set forth opposite such Lender's name on
the signature pages hereof or, if such Lender has entered into any Assignment
and Acceptance, set forth for such Lender in the Register maintained by the
Agent pursuant to Section 8.07(g), as such amount may be reduced pursuant to
Section 2.04 (such Lender's "Commitment"), provided that the aggregate amount of
the Commitments of the Lenders shall be deemed used from time to time to the
extent of the aggregate amount of the Competitive Bid Advances then outstanding
and such deemed use of the aggregate amount of the Commitments shall be
allocated among the Lenders ratably according to their respective Commitments
(such deemed use of the aggregate amount of the Commitments being a "Competitive
Bid Reduction"). Each Revolving Borrowing shall be in an aggregate amount of
$5,000,000 (or in the equivalent thereof in any Alternative Currency) or an
integral multiple of $1,000,000 (or in the equivalent thereof in any Alternative
Currency) in excess thereof (or, if less, an aggregate amount equal to the
amount by which the aggregate amount of a proposed Competitive Bid Borrowing
requested by the Borrower exceeds the aggregate amount of Competitive Bid
Advances offered to be made by the Lenders
<PAGE>
and accepted by the Borrower in respect of such Competitive Bid Borrowing, if
such Competitive Bid Borrowing is made on the same date as such Revolving
Borrowing) and shall consist of Revolving Advances of the same Type made on the
same day by the Lenders ratably according to their respective Commitments.
Notwithstanding anything herein to the contrary, no Revolving Borrowing may be
made in an Alternative Currency if, after giving effect to the making of such
Revolving Borrowing, the aggregate amount of outstanding Revolving Advances
denominated in one or more Alternative Currencies would exceed the Dollar
equivalent of $20,000,000. Within the limits of each Lender's Commitment, the
Borrower may borrow under this Section 2.01(a)(ii), prepay pursuant to Section
2.09(b) and reborrow under this Section 2.01(a)(ii). For purposes of this
Section 2.01(a)(ii) and all other provisions of this Article II, the equivalent
in Dollars of any Alternative Currency or the equivalent in any Alternative
Currency of Dollars or of any other Alternative Currency shall be determined in
accordance with Section 2.18.
SECTION 2.02. Making the Revolving Advances. (a) Each
Revolving Borrowing shall be made on notice, given not later than (x) 10:00 A.M.
(New York City time) on the date of the proposed Revolving Borrowing, in the
case of a Revolving Borrowing consisting of Base Rate Advances, and not later
than (y) 11:00 A.M. (New York City time) on the third Business Day prior to the
date of the proposed Revolving Borrowing, in the case of a Revolving Borrowing
consisting of Eurocurrency Rate Advances denominated in Dollars, and (z) 11:00
A.M. (New York City time) on the fifth Business Day prior to the date of the
proposed Revolving Borrowing, in the case of a Revolving Borrowing consisting of
Eurocurrency Rate Advances denominated in an Alternative Currency, in each case
by the Borrower to the Agent, which shall give to each Lender prompt notice
thereof by telephone, telecopier, telex or cable. Each such notice of a
Revolving Borrowing (a "Notice of Revolving Borrowing") shall be by telephone,
telecopier, telex or cable, confirmed immediately in writing, in substantially
the form of Exhibit B-1 hereto, specifying therein (i) the requested date of
such Revolving Borrowing, (ii) the requested Type of Revolving Advances
comprising such Revolving Borrowing, (iii) the requested aggregate amount of
such Revolving Borrowing and (iv) in the case of a Revolving Borrowing comprised
of Eurocurrency Rate Advances, the requested Interest Period for each such
Revolving Advance and the currency of such Revolving Borrowing.
In the case of a Revolving Borrowing comprised of Eurocurrency
Rate Advances in an Alternative Currency (other than the lawful money of Great
Britain, the lawful money of the Netherlands and the lawful money of Japan), the
obligation of each Lender to make its Eurocurrency Rate Advance in the requested
Alternative Currency as part of such Revolving Borrowing is subject to the
confirmation by such Lender to the Agent not later than the fourth Business Day
before the requested date of such Revolving Borrowing that such Lender agrees to
make its Eurocurrency Rate Advance in the requested Alternative Currency, which
confirmation shall be notified immediately by the Agent to the Borrower. If any
Lender shall not have so provided to the Agent such confirmation, the Agent
shall promptly notify the Borrower and each Lender that a Lender has not
provided such confirmation, whereupon the Borrower may, by notice to the Agent
not later than the third Business Day before the requested date of such
Revolving Borrowing, withdraw the Notice of Revolving Borrowing relating to such
requested Borrowing. If the Borrower does so withdraw such Notice of Revolving
Borrowing, the Revolving Borrowing requested
<PAGE>
in such Notice of Revolving Borrowing shall not occur and the Agent shall
promptly so notify each Lender. If the Borrower does not so withdraw such Notice
of Revolving Borrowing, the Agent shall promptly so notify each Lender and such
Notice of Revolving Borrowing shall be deemed to be a Notice of Revolving
Borrowing which requests a Revolving Borrowing comprised of Eurocurrency Rate
Advances in an aggregate amount in Dollars equivalent, on the date the Agent so
notifies each Lender, to the amount of the originally requested Revolving
Borrowing in such an Alternative Currency; and in such notice by the Agent to
each Lender the Agent shall state such aggregate equivalent amount of such
Revolving Borrowing in Dollars and such Lender's ratable portion of such
Borrowing.
Each Lender shall, before 11:00 A.M. (New York City time) on
the date of such Revolving Borrowing, make available for the account of its
Applicable Lending Office to the Agent (i) in the case of a Revolving Borrowing
in Dollars, at its address referred to in Section 8.02, in same day funds, such
Lender's ratable portion of such Revolving Borrowing in Dollars, and (ii) in the
case of a Revolving Borrowing in an Alternative Currency, at such account
maintained at the Payment Office for such Alternative Currency as shall have
been notified by the Agent to the Lenders prior thereto, in same day funds, such
Lender's ratable portion of such Revolving Borrowing in such Alternative
Currency. After the Agent's receipt of such funds and upon fulfillment of the
applicable conditions set forth in Article III, the Agent will make such funds
available to the Borrower at the Agent's aforesaid address or at the applicable
Payment Office.
(b) Anything in subsection (a) above to the contrary
notwithstanding, the Borrower may not select Eurocurrency Rate Advances for any
Revolving Borrowing if the aggregate amount of such Revolving Borrowing is less
than $5,000,000 (or its equivalent in any Alternative Currency) or if the
obligation of the Lenders to make Eurocurrency Rate Advances shall then be
suspended pursuant to Section 2.07.
(c) Each Notice of Revolving Borrowing shall be irrevocable
and binding on the Borrower. In the case of any Revolving Borrowing which the
related Notice of Revolving Borrowing specifies is to be comprised of
Eurocurrency Rate Advances, the Borrower shall indemnify each Lender against any
loss, cost or expense incurred by such Lender as a result of any failure to
fulfill on or before the date specified in such Notice of Revolving Borrowing
for such Revolving Borrowing the applicable conditions set forth in Article III,
including, without limitation, any loss (excluding loss of anticipated profits),
cost or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Lender to fund the Revolving Advance to
be made by such Lender as part of such Revolving Borrowing when such Revolving
Advance, as a result of such failure, is not made on such date.
(d) Unless the Agent shall have received notice from a Lender
prior to the date of any Revolving Borrowing that such Lender will not make
available to the Agent such Lender's ratable portion of such Revolving
Borrowing, the Agent may assume that such Lender has made such portion available
to the Agent on the date of such Revolving Borrowing in accordance with
subsection (a) of this Section 2.02 and the Agent may, in reliance upon such
assumption, make available to the Borrower on such date a corresponding amount.
If and to the extent that such Lender shall not have so made such ratable
portion available
<PAGE>
to the Agent, such Lender and the Borrower severally agree to repay to the Agent
forthwith on demand such corresponding amount together with interest thereon,
for each day from the date such amount is made available to the Borrower until
the date such amount is repaid to the Agent, at (i) in the case of the Borrower,
the interest rate applicable at the time to Revolving Advances comprising such
Revolving Borrowing and (ii) in the case of such Lender, the Federal Funds Rate.
If such Lender shall repay to the Agent such corresponding amount, such amount
so repaid shall constitute such Lender's Revolving Advance as part of such
Revolving Borrowing for purposes of this Agreement and, if the Borrower shall
repay to the Agent such corresponding amount pursuant to this clause (d), such
repayment shall not relieve such Lender from its obligations hereunder to the
Borrower.
(e) The failure of any Lender to make the Revolving Advance to
be made by it as part of any Revolving Borrowing shall not relieve any other
Lender of its obligation, if any, hereunder to make its Revolving Advance on the
date of such Revolving Borrowing, but no Lender shall be responsible for the
failure of any other Lender to make the Revolving Advance to be made by such
other Lender on the date of any Revolving Borrowing.
SECTION 2.03. Fees. (a) Facility Fee. The Borrower agrees to
pay to the Agent for the account of each Lender (other than the Designated
Bidders) a facility fee on the aggregate amount of such Lender's Commitment from
the Effective Date in the case of each Bank and from the later of the Effective
Date and the effective date specified in the Assignment and Acceptance pursuant
to which it became a Lender in the case of each other Lender until the
Termination Date at a rate per annum equal to the Applicable Percentage in
effect from time to time, payable in arrears quarterly on the last day of each
March, June, September and December, commencing September 30, 1997, and on the
Termination Date.
(b) Agent's Fees. The Borrower shall pay to the Agent for its
own account such fees as may from time to time be agreed between the Borrower
and the Agent.
SECTION 2.04. Reduction or Termination of the Commitments. The
Borrower shall have the right, upon at least three Business Days' notice to the
Agent, to terminate in whole or reduce ratably in part the unused portions of
the respective Commitments of the Lenders, provided that each partial reduction
shall be in the aggregate amount of $5,000,000 or an integral multiple of
$1,000,000 in excess thereof and provided further that the aggregate amount of
the Commitments of the Lenders shall not be reduced to an amount that is less
than the aggregate principal amount of the Competitive Bid Advances then
outstanding.
SECTION 2.05. Repayment of Revolving Advances. The Borrower
shall repay to the Agent for the ratable account of the Lenders on the
Termination Date the principal amount of the Revolving Advances then
outstanding.
SECTION 2.06. Interest on Revolving Advances. (a) Scheduled
Interest. The Borrower shall pay interest on the unpaid principal amount of each
Revolving Advance owing to each Lender from the date of such Revolving Advance
until such principal amount shall be paid in full, at the following rates per
annum:
<PAGE>
(i) Base Rate Advances. During such periods as such Revolving
Advance is a Base Rate Advance, a rate per annum equal at all times to
the Base Rate in effect from time to time, payable in arrears monthly
on the last day of each month during such periods and on the date such
Base Rate Advance shall be Converted or paid in full.
(ii) Eurocurrency Rate Advances. During such periods as such
Revolving Advance is a Eurocurrency Rate Advance, a rate per annum
equal at all times during each Interest Period for such Revolving
Advance to the sum of (x) the Eurocurrency Rate for such Interest
Period for such Revolving Advance plus (y) the Applicable Margin in
effect on the first day of such Interest Period, payable on the last
day of such Interest Period and, if such Interest Period has a duration
of more than three months, on each day which occurs during such
Interest Period every three months from the first day of such Interest
Period and on the date such Eurocurrency Rate Advance shall be
Converted or paid in full.
(b) Default Interest. The Borrower shall pay interest on (i)
the unpaid principal amount of each Revolving Advance that is not paid when due
from the date such amount shall be due until such amount shall be paid in full,
payable in arrears on the dates referred to in clause (a)(i) or (a)(ii) above,
at a rate per annum equal at all times to 2% per annum above the rate per annum
required to be paid on such Revolving Advance pursuant to clause (a)(i) or
(a)(ii) above and (ii) the amount of any interest, fee or other amount payable
hereunder that is not paid when due, from the date such amount shall be due
until such amount shall be paid in full, payable in arrears on the date such
amount shall be paid in full and on demand, at a rate per annum equal at all
times to 2% per annum above the rate per annum required to be paid on Base Rate
Advances pursuant to clause (a)(i) above.
SECTION 2.07. Interest Rate Determination. (a) The Agent shall
give prompt notice to the Borrower and the Lenders of the applicable interest
rate determined by the Agent for purposes of Section 2.06(a)(i) or (ii).
(b) If, with respect to any Eurocurrency Rate Advances, the
Required Lenders notify the Agent that the Eurocurrency Rate for any Interest
Period for such Advances will not adequately reflect the cost to such Required
Lenders of making, funding or maintaining their respective Eurocurrency Rate
Advances for such Interest Period, the Agent shall forthwith so notify the
Borrower and the Lenders, whereupon,
(i) each Eurocurrency Rate Advance will automatically, on the
last day of the then existing Interest Period therefor, Convert into a
Base Rate Advance, and
(ii) the obligation of the Lenders to make, or to Convert
Revolving Advances into, Eurocurrency Rate Advances shall be suspended
until the Agent shall notify the Borrower and the Lenders that the
circumstances causing such suspension no longer exist.
(c) If the Borrower shall fail to select the duration of any
Interest Period for any Eurocurrency Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01, the
Agent will forthwith so notify the Borrower and the Lenders and such
<PAGE>
Revolving Advances will automatically, on the last day of the then existing
Interest Period therefor, Convert into Base Rate Advances.
(d) On the date on which the aggregate unpaid principal amount
of Eurocurrency Rate Advances comprising any Borrowing shall be reduced, by
payment or prepayment or otherwise, to less than $5,000,000 (or its equivalent
in any Alternative Currency), such Revolving Advances shall automatically
Convert into Base Rate Advances at the end of the applicable Interest Period for
such Revolving Advances.
SECTION 2.08. Voluntary Conversion of Revolving Advances. The
Borrower may on any Business Day, upon notice given to the Agent not later than
11:00 A.M. (New York City time) on the third Business Day prior to the date of
the proposed Conversion and subject to the provisions of Sections 2.07 and 2.12,
Convert, pro rata based on the Lenders' respective Commitments, Revolving
Advances of one Type denominated in Dollars comprising the same Borrowing into
Revolving Advances of the other Type denominated in Dollars or, in the case of
Eurocurrency Rate Advances (whether denominated in Dollars or in Alternative
Currency), into Revolving Advances with a different Interest Period; provided,
however, that in the event of any Conversion of Eurocurrency Rate Advances into
Base Rate Advances or Eurocurrency Rate Advances with a different Interest
Period on a day other than the last day of an Interest Period for the
Eurocurrency Rate Advances being Converted, the Borrower shall reimburse the
Lenders in respect of such Eurocurrency Rate Advances to the extent required by
Section 8.04(c) and any Conversion of Base Rate Advances into Eurocurrency Rate
Advances shall be in an amount not less than the minimum amount specified in
Section 2.02(b). Each such notice of a Conversion shall, within the restrictions
specified above, specify (i) the date of such Conversion, (ii) the Revolving
Advances to be Converted and (iii) if such Conversion is into Eurocurrency Rate
Advances, the duration of the Interest Period for each such Revolving Advance.
Each notice of Conversion shall be irrevocable and binding on the Borrower.
SECTION 2.09. Prepayments of Revolving Advances. (a) The
Borrower shall have no right to prepay any principal amount of any Revolving
Advances other than as provided below.
(b) The Borrower may, upon at least three Business Days'
notice in the case of Eurocurrency Rate Advances, and one Business Day's notice
given not later than 11:00 A.M. (New York City time), in the case of Base Rate
Advances, to the Agent stating the proposed date and aggregate principal amount
of the prepayment, and if such notice is given the Borrower shall, prepay the
outstanding principal amounts of the Revolving Advances comprising part of the
same Revolving Borrowing in whole or ratably in part, together with accrued
interest to the date of such prepayment on the principal amount prepaid;
provided, however, that (x) each partial prepayment shall be in an aggregate
principal amount not less than $5,000,000 or the equivalent thereof in an
Alternative Currency (determined on the date notice of repayment is given in
accordance with Section 2.18) or an integral multiple of $1,000,000 or the
equivalent thereof in an Alternative Currency (determined on the date notice of
repayment is given in accordance with Section 2.18) in excess thereof and (y) in
the event of any such prepayment of a Eurocurrency Rate Advance, the Borrower
shall be obligated to reimburse the Lenders in respect thereof to the extent
required by Section 8.04(c).
<PAGE>
(c) The Borrower shall, on each Business Day, prepay an
aggregate principal amount of the Revolving Advances comprising part of the same
Revolving Borrowings equal to the amount by which the aggregate principal amount
of the Advances then outstanding exceeds the aggregate Commitments of the
Lenders on such Business Day. For purposes of this subsection (c), the aggregate
principal amount of Eurocurrency Rate Advances denominated in any Alternative
Currency shall be determined in Dollars as set forth in Section 2.18. The Agent
shall give prompt notice of any prepayment required under this Section 2.09(c)
to the Borrower and the Lenders.
SECTION 2.10. Increased Costs. (a) If, due to either (i) the
introduction of or any change (including any change by way of imposition or
increase of reserve requirements included in the Eurodollar Rate Reserve
Percentage) in or in the interpretation of any law or regulation, with respect
to any Eurocurrency Rate Advance denominated in pounds sterling, after June 1,
1995, and with respect to any other Eurocurrency Rate Advance, after the date
hereof, and with respect to any LIBO Rate Advance, after the date on which one
or more Lenders offered to make such LIBO Rate Advance pursuant to Section
2.15(a)(ii) or (ii) the compliance with any guideline or request from any
central bank or other governmental authority (whether or not having the force of
law), with respect to any Eurocurrency Rate Advance, after the date hereof, and
with respect to any LIBO Rate Advance, after the date on which one or more
Lenders offered to make such LIBO Rate Advance pursuant to Section 2.15(a)(ii),
there shall be any increase in the cost (other than in taxes, except to the
extent that the same are required to be paid pursuant to Section 2.13) to any
Lender of agreeing to make or making, funding or maintaining any Eurocurrency
Rate Advance or LIBO Rate Advance, then the Borrower shall from time to time,
upon demand by such Lender (with a copy of such demand to the Agent), pay to the
Agent for the account of such Lender additional amounts sufficient to compensate
such Lender for such increased cost; provided, however, that, before making any
such demand, each Lender agrees to use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to designate a different
Applicable Lending Office if the making of such a designation would avoid the
need for, or reduce the amount of, such increased cost and would not, in the
reasonable judgment of such Lender, be otherwise disadvantageous to such Lender.
A certificate as to the amount of such increased cost, setting forth the basis
therefor in reasonable detail and submitted by such Lender to the Borrower and
the Agent together with any demand under this subsection (a), shall be presumed
correct absent demonstrable error.
(b) If any Lender determines that compliance with any law or
regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) after the date
hereof affects or would affect the amount of capital required or expected to be
maintained by such Lender or any corporation controlling such Lender and that
the amount of such capital is increased by or based upon the existence of such
Lender's commitment to lend hereunder and other commitments of this type, then,
upon demand by such Lender (with a copy of such demand to the Agent), the
Borrower shall pay to the Agent for the account of such Lender, from time to
time as specified by such Lender, additional amounts sufficient to compensate
such Lender or such corporation in the light of such circumstances, to the
extent that such Lender reasonably determines such increase in capital to be
<PAGE>
allocable to the existence of such Lender's commitment to lend hereunder;
provided, however, that, before making any such demand, each Lender agrees to
use reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions) to designate a different Applicable Lending Office if
the making of such a designation would avoid the need for, or reduce the amount
of, such additional amounts payable under this subsection (b) and would not, in
the reasonable judgment of such Lender, be otherwise disadvantageous to such
Lender. A certificate as to such amounts, setting forth the basis therefor in
reasonable detail and submitted to the Borrower and the Agent by such Lender
together with any demand under this paragraph (b) shall be presumed correct
absent demonstrable error.
(c) Notwithstanding any other provision in this Section 2.10,
no Lender shall be entitled to demand compensation pursuant to this Section 2.10
unless such Lender shall certify to the Borrower that it is at the time the
general policy or practice of such Lender to demand such compensation in similar
circumstances under comparable provisions of other comparable credit agreements
with borrowers of similar credit quality. The Borrower shall pay each Lender the
amount shown as due on any certificate delivered by such Lender pursuant to
paragraph (a) or (b) above within 30 days after its receipt of the same.
(d) No Lender shall be entitled to compensation under this
Section 2.10 for any costs incurred or reductions suffered with respect to any
event or circumstance unless such Lender shall have notified the Borrower, not
more than 120 days after such Lender becomes aware of such event or
circumstance, that it will demand compensation for such costs or reductions in a
certificate described in the last sentence of each of paragraphs (a) and (b)
above.
SECTION 2.11. Illegality. (a) Notwithstanding any other
provision of this Agreement, if any Lender shall notify the Agent and the
Borrower that the introduction of or any change in or in the interpretation of
any law or regulation makes it unlawful, or any central bank or other
governmental authority asserts that it is unlawful, for any Lender or its
Eurocurrency Lending Office to perform its obligations hereunder to make
Eurocurrency Rate Advances in Dollars or in any Alternative Currency or LIBO
Rate Advances or to fund or maintain Eurocurrency Rate Advances in Dollars or in
any Alternative Currency or LIBO Rate Advances hereunder, (i) the obligation of
such Lender to make Eurocurrency Rate Advances in Dollars or in such Alternative
Currency or LIBO Rate Advances, as the case may be, or to Convert Revolving
Advances into Eurocurrency Rate Advances shall be suspended, whereupon any
request by the Borrower for a Borrowing comprised of Eurocurrency Rate Advances
or LIBO Rate Advances shall, as to such Lender only, be deemed a request for a
Base Rate Advance until such Lender shall notify the Agent and the Borrower that
the circumstances causing such suspension no longer exist and (ii) such Lender
may require that all outstanding Eurocurrency Rate Advances in Dollars or in
such Alternative Currency and LIBO Rate Advances, as the case may be, made by it
be Converted to Base Rate Advances, in which event all such Eurocurrency Rate
Advances in Dollars or in such Alternative Currency and LIBO Rate Advances, as
the case may be, shall be automatically Converted to Base Rate Advances as of
the effective date of such notice; provided, however, that each Lender agrees
<PAGE>
to use reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions) to designate a different Eurocurrency Lending Office if
the making of such a designation would enable such Lender to withdraw its notice
under this subsection (a) and would not, in the reasonable judgment of such
Lender, be otherwise disadvantageous to such Lender. In the event any Lender
shall notify the Agent and the Borrower of the occurrence of the circumstances
causing such suspension under this Section 2.11(a), all payments and prepayments
of principal that would otherwise have been applied to repay the Eurocurrency
Rate Advances or LIBO Rate Advances that would have been made by such Lender or
the Converted Eurocurrency Rate Advances shall instead be applied to repay the
Base Rate Advances made by such Lender in lieu of such Eurocurrency Rate
Advances or LIBO Rate Advances, or resulting from the Conversion of such
Eurocurrency Rate Advances.
(b) For purposes of this Section 2.11, a notice to the
Borrower by any Lender shall be effective as to each Eurocurrency Rate Advance
and LIBO Rate Advance, if lawful, on the last day of the Interest Period
currently applicable to such Eurocurrency Rate Advance or LIBO Rate Advance, as
the case may be; in all other cases such notice shall be effective on the date
of the occurrence of the circumstances causing such suspension under subsection
(a) above.
SECTION 2.12. Payments and Computations. (a) The Borrower
shall make each payment hereunder and under the Notes, except with respect to
principal of, interest on, and other amounts relating to, Advances denominated
in an Alternative Currency, not later than 12:00 Noon (New York City time) on
the day when due in Dollars to the Agent at its address referred to in Section
8.02 in same day funds. The Borrower shall make each payment hereunder and under
the Notes with respect to principal of, interest on, and other amounts relating
to Advances denominated in an Alternative Currency not later than 12:00 Noon (at
the Payment Office for such Alternative Currency) on the day when due in such
Alternative Currency to the Agent in same day funds by deposit of such funds to
the Agent's account maintained at such Payment Office. The Agent will promptly
thereafter cause to be distributed like funds relating to the payment of
principal or interest or facility fees ratably (other than amounts payable
pursuant to Section 2.10, 2.13, 2.15 or 8.04(c)) to the Lenders for the account
of their respective Applicable Lending Offices, and like funds relating to the
payment of any other amount payable to any Lender to such Lender for the account
of its Applicable Lending Office, in each case to be applied in accordance with
the terms of this Agreement. Upon its acceptance of an Assignment and Acceptance
and recording of the information contained therein in the Register pursuant to
Section 8.07(g), from and after the effective date specified in such Assignment
and Acceptance, the Agent shall make all payments hereunder and under the Notes
in respect of the interest assigned thereby to the Lender assignee thereunder,
and the parties to such Assignment and Acceptance shall make all appropriate
adjustments in such payments for periods prior to such effective date directly
between themselves.
(b) The Borrower hereby authorizes each Lender, if and to the
extent payment owed to such Lender is not made when due hereunder or under the
Note held by such Lender, to charge from time to time against any or all of the
<PAGE>
Borrower's accounts with such Lender any amount so due.
(c) All computations of interest based on the Base Rate shall
be made by the Agent on the basis of a year of 365 or 366 days, as the case may
be, and all computations of interest based on the Eurocurrency Rate or the
Federal Funds Rate and of facility fees shall be made by the Agent on the basis
of a year of 360 days, in each case for the actual number of days (including the
first day but excluding the last day) occurring in the period for which such
interest or facility fees are payable. Each determination by the Agent of an
interest rate hereunder shall be conclusive and binding for all purposes, absent
manifest error.
(d) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest or facility fee, as
the case may be; provided, however, if such extension would cause payment of
interest on or principal of Eurocurrency Rate Advances or LIBO Rate Advances to
be made in the next following calendar month, such payment shall be made on the
next preceding Business Day.
(e) Unless the Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Lenders hereunder
that the Borrower will not make such payment in full, the Agent may assume that
the Borrower has made such payment in full to the Agent on such date and the
Agent may, in reliance upon such assumption, cause to be distributed to each
Lender on such due date an amount equal to the amount then due such Lender. If
and to the extent the Borrower shall not have so made such payment in full to
the Agent, each Lender shall repay to the Agent forthwith on demand such amount
distributed to such Lender together with interest thereon, for each day from the
date such amount is distributed to such Lender until the date such Lender repays
such amount to the Agent, at the Federal Funds Rate.
SECTION 2.13. Taxes. (a) Any and all payments by the Borrower
hereunder or under the Notes shall be made, in accordance with Section 2.12,
free and clear of and without deduction for any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding, in the case of each Lender and the Agent, taxes
imposed on its income, and franchise taxes imposed on it, by the jurisdiction
under the laws of which such Lender or the Agent (as the case may be) is
organized or any political subdivision thereof and, in the case of each Lender,
taxes imposed on its income, and franchise taxes imposed on it, by the
jurisdiction of such Lender's Applicable Lending Office or any political
subdivision thereof (all such non-excluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities being hereinafter referred to as "Taxes").
If the Borrower shall be required by law to deduct any Taxes from or in respect
of any sum payable hereunder or under any Note to any Lender or the Agent, (i)
the sum payable shall be increased as may be necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section 2.13) such Lender or the Agent (as the case may be) receives
an amount equal to the sum it would have received had no such
<PAGE>
deductions been made, (ii) the Borrower shall make such deductions and (iii) the
Borrower shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable law.
(b) In addition, the Borrower agrees to pay any present or
future stamp or documentary taxes or any other excise or property taxes, charges
or similar levies which arise from any payment made hereunder or under the Notes
or from the execution, delivery or registration of, or otherwise with respect
to, this Agreement or the Notes (hereinafter referred to as "Other Taxes").
(c) The Borrower will indemnify each Lender and the Agent for
the full amount of Taxes or Other Taxes (including, without limitation, any
Taxes or Other Taxes imposed by any jurisdiction on amounts payable under this
Section 2.13) paid by such Lender or the Agent (as the case may be) and any
liability (including penalties, interest and expenses) arising therefrom or with
respect thereto. This indemnification shall be made within 30 days from the date
such Lender or the Agent (as the case may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the
Borrower will furnish to the Agent, at its address referred to in Section 8.02,
the original or a certified copy of a receipt evidencing payment thereof. In the
case of any payment hereunder or under the Notes by the Borrower through an
account or branch outside the United States or on behalf of the Borrower by a
payor that is not a United States person, if the Borrower determines that no
Taxes are payable in respect thereof, the Borrower shall furnish, or shall cause
such payor to furnish, to the Agent, at such address, an opinion of counsel
acceptable to the Agent stating that such payment is exempt from Taxes. For
purposes of this Section 2.13, the terms "United States" and "United States
person" shall have the meanings specified in Section 7701 of the Internal
Revenue Code.
(e) Each Lender organized under the laws of a jurisdiction
outside the United States, on or prior to the date of its execution and delivery
of this Agreement in the case of each initial Lender and on the date of the
Assignment and Acceptance pursuant to which it becomes a Lender in the case of
each other Lender, and from time to time thereafter if requested in writing by
the Borrower (but only so long as such Lender remains lawfully able to do so),
shall provide the Borrower with Internal Revenue Service Form 1001 or 4224, as
appropriate, or any successor form prescribed by the Internal Revenue Service,
certifying that such Lender is entitled to benefits under an income tax treaty
to which the United States is a party which reduces the rate of withholding tax
on payments of interest or certifying that the income receivable pursuant to
this Agreement or the Notes is effectively connected with the conduct of a trade
or business in the United States. If the form provided by a Lender at the time
such Lender first becomes a party to this Agreement indicates a United States
interest withholding tax rate in excess of zero, withholding tax at such rate
shall be considered excluded from "Taxes" as defined in Section 2.13(a).
(f) For any period with respect to which a Lender has failed
to provide the Borrower with the appropriate form described in Section 2.13(e)
<PAGE>
(other than if such failure is due to a change in law occurring subsequent to
the date on which a form originally was required to be provided, or if such form
otherwise is not required under the first sentence of subsection (e) above),
such Lender shall not be entitled to indemnification under Section 2.13(a) with
respect to Taxes imposed by the United States; provided, however, that should a
Lender become subject to Taxes because of its failure to deliver a form required
hereunder, the Borrower, at the requesting Lender's expense, shall take such
steps as the Lender shall reasonably request to assist the Lender to recover
such Taxes.
(g) Any Lender claiming any additional amounts payable
pursuant to this Section 2.13 shall use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to change the
jurisdiction of its Eurocurrency Lending Office if the making of such a change
would avoid the need for, or reduce the amount of, any such additional amounts
that may thereafter accrue and would not, in the reasonable judgment of such
Lender, be otherwise disadvantageous to such Lender.
(h) The Agent or any Lender will notify the Borrower if it
becomes aware of any circumstances that entitle the Borrower to a refund of
Taxes paid by the Borrower pursuant to this Section 2.13 if the Borrower would
not otherwise know or have reason to know of its entitlement to such refund.
Within 30 days of the written request of the Borrower therefor, the Lenders and
the Agent, as appropriate, shall, at the Borrower's expense, execute and deliver
to the Borrower such certificates, forms or other documents that can be
furnished consistent with the facts and that are reasonably necessary to assist
the Borrower in applying for refunds of Taxes paid by the Borrower pursuant to
either Section 2.13(a) or Section 2.13(c).
(i) Without prejudice to the survival of any other agreement
of the Borrower hereunder, the agreements and obligations of the Borrower
contained in this Section 2.13 shall survive the payment in full of principal
and interest hereunder and under the Notes.
SECTION 2.14. Sharing of Payments, Etc. If any Lender shall
obtain any payment (whether voluntary, involuntary, through the exercise of any
right of setoff, or otherwise) on account of the Revolving Advances owing to it
(other than pursuant to Section 2.10, 2.13 or 8.04(c)) in excess of its ratable
share of payments on account of the Revolving Advances obtained by all the
Lenders, such Lender shall forthwith purchase from the other Lenders such
participations in the Revolving Advances owing to them as shall be necessary to
cause such purchasing Lender to share the excess payment ratably with each of
them, provided, however, that if all or any portion of such excess payment is
thereafter recovered from such purchasing Lender, such purchase from each Lender
shall be rescinded and such Lender shall repay to the purchasing Lender the
purchase price to the extent of such recovery together with an amount equal to
such Lender's ratable share (according to the proportion of (i) the amount of
such Lender's required repayment to (ii) the total amount so recovered from the
purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered. The Borrower
agrees that any Lender so purchasing a participation from another Lender
<PAGE>
pursuant to this Section 2.14 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of setoff) with respect
to such participation as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation.
SECTION 2.15. The Competitive Bid Advances. (a) Each Lender
severally agrees that the Borrower may make Competitive Bid Borrowings under
this Section 2.15 from time to time on any Business Day during the period from
the date hereof until the date occurring 30 days prior to the Termination Date
in the manner set forth below; provided that, following the making of each
Competitive Bid Borrowing, (x) the aggregate amount of the Competitive Bid
Advances of all Lenders then outstanding shall not exceed $100,000,000, (y) the
aggregate amount of the Competitive Bid Advances of any one Lender then
outstanding shall not exceed $50,000,000 and (z) the aggregate amount of the
Advances then outstanding shall not exceed the aggregate amount of the
Commitments of the Lenders (computed without regard to any Competitive Bid
Reduction).
(i) The Borrower may request a Competitive Bid Borrowing under
this Section 2.15 by delivering to the Agent, by telephone, telecopier,
telex or cable, a notice of a Competitive Bid Borrowing (a "Notice of
Competitive Bid Borrowing"), in substantially the form of Exhibit B-2
hereto, specifying therein the requested (v) date of such proposed
Competitive Bid Borrowing, (w) aggregate amount of such proposed
Competitive Bid Borrowing, (x) in the case of a Competitive Bid
Borrowing consisting of LIBO Rate Advances, Interest Period, or in the
case of a Competitive Bid Borrowing consisting of Fixed Rate Advances,
maturity date for repayment of each Fixed Rate Advance to be made as
part of such Competitive Bid Borrowing (which maturity date may not be
earlier than the date occurring seven days after the date of such
Competitive Bid Borrowing or later than the earlier of (I) 180 days
after the date of such Competitive Bid Borrowing and (II) the
Termination Date), (y) interest payment date or dates relating thereto
and (z) other terms (if any) to be applicable to such Competitive Bid
Borrowing, not later than 10:00 A.M. (New York City time) (A) at least
one Business Day prior to the date of the proposed Competitive Bid
Borrowing, if the Borrower shall specify in the Notice of Competitive
Bid Borrowing that the rates of interest to be offered by the Lenders
shall be fixed rates per annum (each Advance comprising part of such
Competitive Bid Borrowing being referred to herein as a "Fixed Rate
Advance") and (B) at least four Business Days prior to the date of the
proposed Competitive Bid Borrowing, if the Borrower shall instead
specify in the Notice of Competitive Bid Borrowing that the rates of
interest to be offered by the Lenders are to be based on the LIBO Rate
(each Advance comprising part of any such Competitive Bid Borrowing
that is offered by the Lenders at the LIBO Rate is referred to herein
as a "LIBO Rate Advance"). Subject to subsection (a)(iii)(x) below,
each Notice of Competitive Bid Borrowing shall be irrevocable and
binding on the Borrower. The Agent shall in turn promptly notify each
Lender of each request for a Competitive Bid Borrowing received by it
from the Borrower by sending such Lender a copy of the related Notice
of Competitive Bid Borrowing.
<PAGE>
(ii) Each Lender may, if, in its sole discretion, it elects to
do so, irrevocably offer to make one or more Competitive Bid Advances
to the Borrower as part of such proposed Competitive Bid Borrowing at a
rate or rates of interest specified by such Lender in its sole
discretion, by written notice (the "Offer") to the Agent (which shall
give prompt notice thereof to the Borrower), before 9:30 A.M. (New York
City time) on the date of such proposed Competitive Bid Borrowing in
the case of a Competitive Bid Borrowing consisting of Fixed Rate
Advances and before 10:00 A.M. (New York City time) three Business Days
before the date of such proposed Competitive Bid Borrowing, in the case
of a Competitive Bid Borrowing consisting of LIBO Rate Advances, of the
minimum amount and maximum amount of each Competitive Bid Advance which
such Lender would be willing to make as part of such proposed
Competitive Bid Borrowing (which amounts may, subject to the proviso to
the first sentence of this Section 2.15(a), exceed such Lender's
Commitment, if any), the rate or rates of interest therefor, the
interest payment schedule, the maturity date of the proposed
Competitive Bid Advance, such Lender's Applicable Lending Office with
respect to such Competitive Bid Advance and such other terms as the
Borrower may specify in the Notice of Competitive Bid Borrowing;
provided that if the Agent in its capacity as a Lender shall, in its
sole discretion, elect to make any such offer, it shall notify the
Borrower of such offer at least 30 minutes before the time and on the
date on which notice of such election is to be given to the Agent by
the other Lenders. If any Lender shall elect not to make such an offer,
such Lender shall so notify the Agent, before 10:00 A.M. (New York City
time) on the date on which notice of such election is to be given to
the Agent by the other Lenders, and such Lender shall not be obligated
to, and shall not, make any Competitive Bid Advance as part of such
Competitive Bid Borrowing; provided that the failure by any Lender to
give such notice shall not cause such Lender to be obligated to make
any Competitive Bid Advance as part of such proposed Competitive Bid
Borrowing.
(iii) The Borrower shall, in turn, before 10:30 A.M. (New York
City time) on the date of such proposed Competitive Bid Borrowing, in
the case of a Competitive Bid Borrowing consisting of Fixed Rate
Advances and before 11:00 A.M. (New York City time) three Business Days
before the date of such proposed Competitive Bid Borrowing, in the case
of a Competitive Bid Borrowing consisting of LIBO Rate Advances,
either:
(x) cancel such Competitive Bid Borrowing by giving
the Agent notice to that effect, or
(y) accept one or more of the offers made by any
Lender or Lenders pursuant to paragraph (ii) above, in its
sole discretion, by giving written notice to the Agent of the
amount of each Competitive Bid Advance (which amount shall be
equal to or greater than the minimum amount, and equal to or
less than the maximum amount, notified to the Borrower by the
Agent on behalf of such Lender for such Competitive Bid
Advance pursuant to paragraph (ii) above) to be made by each
Lender as part of such Competitive Bid
<PAGE>
Borrowing, and reject any remaining offers made by Lenders
pursuant to paragraph (ii) above by giving the Agent notice to
that effect. The Borrower shall accept the offers made by any
Lender or Lenders to make Competitive Bid Advances in order of
the lowest to the highest rates of interest offered by such
Lenders. If two or more Lenders have offered the same interest
rate, the amount to be borrowed at such interest rate will be
allocated among such Lenders in proportion to the amount that
each such Lender offered at such interest rate.
(iv) If the Borrower notifies the Agent that such Competitive
Bid Borrowing is cancelled pursuant to paragraph (iii)(x) above, the
Agent shall give prompt notice thereof to the Lenders and such
Competitive Bid Borrowing shall not be made.
(v) If the Borrower accepts one or more of the offers made by
any Lender or Lenders pursuant to paragraph (iii)(y) above, the Agent
shall in turn promptly notify (A) each Lender that has made an offer as
described in paragraph (ii) above, of the date and aggregate amount of
such Competitive Bid Borrowing and whether or not any offer or offers
made by such Lender pursuant to paragraph (ii) above have been accepted
by the Borrower, (B) each Lender that is to make a Competitive Bid
Advance as part of such Competitive Bid Borrowing, of the amount of
each Competitive Bid Advance to be made by such Lender as part of such
Competitive Bid Borrowing, and (C) each Lender that is to make a
Competitive Bid Advance as part of such Competitive Bid Borrowing, upon
receipt, that the Agent has received forms of documents appearing to
fulfill the applicable conditions set forth in Article III. Each Lender
that is to make a Competitive Bid Advance as part of such Competitive
Bid Borrowing shall, before 12:00 noon (New York City time) on the date
of such Competitive Bid Borrowing specified in the notice received from
the Agent pursuant to clause (A) of the preceding sentence or any later
time when such Lender shall have received notice from the Agent
pursuant to clause (C) of the preceding sentence, make available for
the account of its Applicable Lending Office to the Agent at its
address referred to in Section 8.02, in same day funds, such Lender's
portion of such Competitive Bid Borrowing. Upon fulfillment of the
applicable conditions set forth in Article III and after receipt by the
Agent of such funds, the Agent will make such funds available to the
Borrower at the Agent's aforesaid address or at the applicable Payment
Office. Promptly after each Competitive Bid Borrowing the Agent will
notify each Lender of the amount of the Competitive Bid Borrowing, the
consequent Competitive Bid Reduction and the dates upon which such
Competitive Bid Reduction commenced and will terminate.
(vi) If the Borrower notifies the Agent that it accepts one or
more of the offers made by any Lender or Lenders pursuant to paragraph
(iii)(y) above, such notice of acceptance shall be irrevocable and
binding on the Borrower. The Borrower shall indemnify each Lender
against any loss, cost or expense incurred by such Lender as a result
of any failure to fulfill on or before the date specified in the
related Notice of Competitive Bid Borrowing for such Competitive Bid
Borrowing the applicable conditions set
<PAGE>
forth in Article III, including, without limitation, any loss
(including loss of anticipated profits), cost or expense incurred by
reason of the liquidation or reemployment of deposits or other funds
acquired by such Lender to fund the Competitive Bid Advance to be made
by such Lender as part of such Competitive Bid Borrowing when such
Competitive Bid Advance, as a result of such failure, is not made on
such date.
(b) Each Competitive Bid Borrowing shall be in an aggregate
amount of $5,000,000 or an integral multiple of $1,000,000 in excess thereof
and, following the making of each Competitive Bid Borrowing, the Borrower and
each Lender shall be in compliance with the limitations set forth in the proviso
to the first sentence of subsection (a) above.
(c) Within the limits and on the conditions set forth in this
Section 2.15, the Borrower may from time to time borrow under this Section 2.15,
repay or prepay pursuant to subsection (d) below, and reborrow under this
Section 2.15, provided that a Competitive Bid Borrowing shall not be made within
three Business Days of the date of any other Competitive Bid Borrowing.
(d) The Borrower shall repay to the Agent for the account of
each Lender that has made a Competitive Bid Advance, on the maturity date of
each Competitive Bid Advance (such maturity date being that specified by the
Borrower for repayment of such Competitive Bid Advance in the related Notice of
Competitive Bid Borrowing delivered pursuant to subsection (a)(i) above), the
then unpaid principal amount of such Competitive Bid Advance. The Borrower shall
have no right to prepay any principal amount of any Competitive Bid Advance
unless, and then only on the terms, specified by the Borrower for such
Competitive Bid Advance in the related Notice of Competitive Bid Borrowing
delivered pursuant to subsection (a)(i) above.
(e) The Borrower shall pay interest on the unpaid principal
amount of each Competitive Bid Advance from the date of such Competitive Bid
Advance to the date the principal amount of such Competitive Bid Advance is
repaid in full, at the rate of interest for such Competitive Bid Advance
specified by the Lender making such Competitive Bid Advance in its notice with
respect thereto delivered pursuant to subsection (a)(ii) above, payable on the
interest payment date or dates specified by the Borrower for such Competitive
Bid Advance in the related Notice of Competitive Bid Borrowing delivered
pursuant to subsection (a)(i) above. The Borrower shall pay interest on (i) the
unpaid principal amount of each Competitive Bid Advance that is not paid when
due from the date such amount shall be due until such amount shall be paid in
full, payable in arrears on the date or dates interest is payable thereon, at a
rate per annum equal at all times to 2% per annum above the rate per annum
required to be paid on such Competitive Bid Advance under the terms of the Offer
for such Competitive Bid Advance unless otherwise agreed in such Offer and (ii)
the amount of any interest on each Competitive Bid Advance that is not paid when
due, from the date such amount shall be due until such amount shall be paid in
full, payable in arrears on the date such amount shall be paid in full and on
demand, at a rate per annum equal at all times to 2% per annum above the rate
per annum required to be paid on such Competitive Bid Advance under the terms
<PAGE>
of the Offer for such Competitive Bid Advance unless otherwise agreed in such
Offer.
(f) The indebtedness of the Borrower resulting from each
Competitive Bid Advance made to the Borrower as part of a Competitive Bid
Borrowing shall, upon the request of the Lender making such Competitive Bid
Advance, be evidenced in part by a Competitive Bid Note of the Borrower payable
to the order of the Lender making such Competitive Bid Advance, which Note shall
be delivered by the Borrower to the Agent promptly following the making of such
Competitive Bid Advance in a principal amount equal to the aggregate Commitments
of the Lenders hereunder.
(g) Upon delivery of each Notice of Competitive Bid Borrowing,
the Borrower shall pay a non-refundable fee of $1,500 to the Agent for its own
account.
SECTION 2.16 Additional Interest on Eurodollar Rate Advances.
For so long as any Lender maintains reserves against Eurocurrency Liabilities,
the Borrower shall pay to the Agent for the account of each such Lender
additional interest on the unpaid principal amount of each Eurodollar Rate
Advance of such Lender, from the date of such Advance until such principal
amount is paid in full, at an interest rate per annum equal at all times to the
remainder obtained by subtracting, in the case of Revolving Advances, (a) the
Eurocurrency Rate for the Interest Period for such Advance from (b) the rate
obtained by dividing such Eurocurrency Rate by a percentage equal to 100% minus
the Eurocurrency Rate Reserve Percentage of such Lender for such Interest
Period, payable on each date on which interest is payable on such Advance. Such
additional interest shall be determined by such Lender and notified to the
Borrower through the Agent.
SECTION 2.17. Voluntary Redenomination of Revolving Advances.
The Borrower may, upon notice given to the Agent at least five Business Days
prior to the date of the proposed Redenomination, request that all Eurocurrency
Rate Advances comprising part of the same Revolving Borrowing be Redenominated
from Dollars into an Alternative Currency or from an Alternative Currency into
Dollars or another Alternative Currency; provided, however, that any
Redenomination shall be made on, and only on, the last day of an Interest Period
for such Revolving Advances. Each such notice of request of a Redenomination (a
"Notice of Redenomination") shall be by telephone, telecopier, telex or cable,
in substantially the form of Exhibit E hereto, specifying (i) the Eurocurrency
Rate Advances comprising the Revolving Borrowing to be Redenominated, (ii) the
date of the proposed Redenomination, (iii) the currency into which such
Revolving Advances are to be Redenominated and (iv) the duration of the Interest
Period for such Revolving Advances upon being so Redenominated. In the case of a
Notice of Redenomination which requests a Redenomination of Revolving Advances
into an Alternative Currency (other than the lawful money of Great Britain, the
lawful money of the Netherlands and the lawful money of Japan), such
Redenomination is subject to the confirmation by each Lender to the Agent not
later than the fourth Business Day before the requested date of such
Redenomination that such Lender agrees to such Redenomination, which
confirmation shall be notified immediately by the
<PAGE>
Agent to the Borrower. If any Lender shall not have so provided to the Agent
such confirmation, the requested Redenomination will not occur and the Agent
shall promptly notify the Borrower and each Lender that a Lender has not
provided such confirmation and that the requested Redenomination will not occur.
If each Lender shall have so provided to the Agent such confirmation or if such
Notice of Redenomination requests a Redenomination of Revolving Advances into
Dollars, the lawful money of Great Britain, the lawful money of the Netherlands
or the lawful money of Japan, each Revolving Advance so requested to be
Redenominated will be Redenominated, on the date specified therefor in such
Notice of Redenomination, into an equivalent amount thereof in the currency
requested in such Notice of Redenomination, such equivalent amount to be
determined on such date in accordance with Section 2.18, and, upon being so
Redenominated, will have an initial Interest Period as requested in such Notice
of Redenomination.
SECTION 2.18. Currency Equivalents. For purposes of the
provisions of this Article II, (i) the equivalent in Dollars of any Alternative
Currency shall be determined by using the quoted spot rate at which Citibank's
principal office in London offers to exchange Dollars for such Alternative
Currency in London at 11:00 A.M. (London time) two Business Days prior to the
date on which such equivalent is to be determined, (ii) the equivalent in any
Alternative Currency of any other Alternative Currency shall be determined by
using the quoted spot rate at which Citibank's principal office in London offers
to exchange such Alternative Currency for the equivalent in Dollars of such
other Alternative Currency in London at 11:00 A.M. (London time) two Business
Days prior to the date on which such equivalent is to be determined, and (iii)
the equivalent in any Alternative Currency of Dollars shall be determined by
using the quoted spot rate at which Citibank's principal office in London offers
to exchange such Alternative Currency for Dollars in London at 11:00 A.M.
(London time) two Business Days prior to the date on which such equivalent is to
be determined. The equivalent in Dollars of each Eurocurrency Rate Advance made
in an Alternative Currency shall be recalculated hereunder on each date that it
shall be necessary to determine the unused portion of each Lender's Commitment,
or any or all Revolving Advance or Advances outstanding on such date.
SECTION 2.19. Evidence of Debt. (a) Each Lender shall maintain
in accordance with its usual practice an account or accounts evidencing the
indebtedness of the Borrower to such Lender resulting from each Advance owing to
such Lender from time to time, including the amounts of principal and interest
payable and paid to such Lender from time to time hereunder. The Borrower agrees
that upon notice by any Lender to the Borrower (with a copy of such notice to
the Agent) to the effect that a promissory note or other evidence of
indebtedness is required or appropriate in order for such Lender to evidence
(whether for purposes of pledge, enforcement or otherwise) the Advances owing
to, or to be made by, such Lender, the Borrower shall promptly execute and
deliver to such Lender a Revolving Note, payable to the order of such Lender in
a principal amount equal to the Commitment of such Lender.
(b) The Register maintained by the Agent pursuant to Section
8.07(g) shall include a control account, and a subsidiary account for each
Lender, in which accounts (taken together) shall be recorded (i) the date and
<PAGE>
amount of each Borrowing made hereunder, whether such Borrowing is composed of
Revolving Advances or Competitive Bid Advances, and, if applicable, the Type of
Advance comprising such Borrowing and, if appropriate, the Interest Period
applicable thereto, (ii) the terms of each Assignment and Acceptance delivered
to and accepted by it, (iii) the amount of any principal or interest due and
payable or to become due and payable from the Borrower to each Lender hereunder,
and (iv) the amount of any sum received by the Agent from the Borrower hereunder
and each Lender's share thereof.
(c) Entries made in good faith by the Agent in the Register
pursuant to subsection (b) above, and by each Lender in its account or accounts
pursuant to subsection (a) above, shall be prima facie evidence of the amount of
principal and interest due and payable or to become due and payable from the
Borrower to, in the case of the Register, each Lender and, in the case of such
account or accounts, such Lender, under this Agreement, absent manifest error;
provided, however, that the failure of the Agent or such Lender to make an
entry, or any finding that an entry is incorrect, in the Register or such
account or accounts shall not limit or otherwise affect the obligations of the
Borrower under this Agreement.
(d) References herein to Notes shall mean and be references to
Revolving Notes and Competitive Bid Notes to the extent issued hereunder.
SECTION 2.20. Use of Proceeds. The proceeds of the Advances
shall be available (and the Borrower agrees that it shall use such proceeds)
solely for general corporate purposes of the Borrower and its Subsidiaries,
including, without limitation, for purposes of making acquisitions.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of
Sections 2.01 and 2.15. Sections 2.01 and 2.15 of this Agreement shall become
effective as of the Effective Date, subject to the conditions precedent that:
(a) There shall have occurred no Material Adverse Change since
December 31, 1996.
(b) There shall exist no action, suit, investigation,
litigation or proceeding affecting the Borrower or any of its
Subsidiaries pending or threatened before any court, governmental
agency or arbitrator that (i) would reasonably be expected to have a
Material Adverse Effect other than the matters described on Schedule
3.01(b) (the "Disclosed Litigation") or (ii) purports to affect the
legality, validity or enforceability of this Agreement or any Note or
the consummation of the transactions contemplated hereby, and there
shall have been no material adverse change in the status, or financial
effect on the Borrower or any of its Subsidiaries, of the Disclosed
Litigation from that described on Schedule 3.01(b).
<PAGE>
(c) All governmental and third party consents and approvals
necessary in connection with this Agreement or the transactions
contemplated hereby and with the execution, delivery and performance of
this Agreement and the Notes shall have been obtained (without the
imposition of any conditions that are not acceptable to the Lenders)
and shall remain in effect, and no law or regulation shall be
applicable in the reasonable judgment of the Lenders that restrains,
prevents or imposes materially adverse conditions upon the transactions
contemplated hereby.
(d) The Borrower shall have paid all accrued fees and expenses
of the Agent and all accrued financing fees of the Lenders (including
the accrued fees and expenses of counsel to the Agent); provided,
however, that the Borrower shall only be obligated to pay on the
Effective Date those expenses for which it has received invoices at
least one Business Day prior to the Effective Date.
(e) The Agent shall have received on or before the Effective
Date the following, each dated such day, in form and substance
satisfactory to the Agent and (except for the Revolving Notes) in
sufficient copies for each Lender:
(i) The Notes to the order of those Lenders that have
requested Notes prior to the Effective Date.
(ii) Certified copies of the resolutions of the Board
of Directors of the Borrower approving this Agreement and any
Notes, and of all documents evidencing other necessary
corporate action and governmental approvals, if any, with
respect to this Agreement and any Notes.
(iii) A certificate of the Secretary or an Assistant
Secretary of the Borrower certifying the names and true
signatures of the officers of the Borrower authorized to sign
this Agreement and any Notes and the other documents to be
delivered hereunder.
(iv) An environmental assessment update report
prepared by the Borrower, in form, scope and substance
reasonably satisfactory to the Lenders, as to any material
environmental hazards or liabilities to which the Borrower or
any of its Subsidiaries may be subject, and the Lenders shall
be reasonably satisfied with the amount and nature of any such
hazards or liabilities and with the Borrower's plans with
respect thereto.
(v) A favorable opinion of Cravath, Swaine & Moore,
special counsel for the Borrower, substantially in the form of
Exhibit F-1 hereto and as to such other matters as any Lender
through the Agent may reasonably request.
(vi) A favorable opinion of Edward F. Jackman, Esq.,
General Counsel of the Borrower, substantially in the form of
Exhibit F-2 hereto and as to such other matters as any Lender
<PAGE>
through the Agent may reasonably request.
(vii) A favorable opinion of Shearman & Sterling,
counsel for the Agent, in form and substance satisfactory to
the Agent.
SECTION 3.02. Additional Conditions Precedent to
Effectiveness. The effectiveness of Sections 2.01 and 2.15 of this Agreement
shall be subject to the further conditions precedent that on the Effective Date
the following statements shall be true and the Agent shall have received for the
account of each Lender a certificate signed by a duly authorized officer of the
Borrower, dated the Effective Date, stating that the following statements are
true:
(i) The representations and warranties contained in Section
4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes
a Default.
SECTION 3.03. Conditions Precedent to Each Revolving
Borrowing. The obligation of each Lender to make a Revolving Advance on the
occasion of each Revolving Borrowing shall be subject to the further conditions
precedent that on the date of such Revolving Borrowing the following statements
shall be true (and each of the giving of the applicable Notice of Revolving
Borrowing and the acceptance by the Borrower of the proceeds of such Revolving
Borrowing shall constitute a representation and warranty by the Borrower that on
the date of such Revolving Borrowing such statements are true):
(i) The representations and warranties contained in Section
4.01 (except the representations set forth in the last sentence of
subsection (e) thereof) are correct on and as of the date of such
Revolving Borrowing, before and after giving effect to such Revolving
Borrowing and to the application of the proceeds therefrom, as though
made on and as of such date,
(ii) No event has occurred and is continuing, or would result
from such Revolving Borrowing or from the application of the proceeds
therefrom, that constitutes a Default.
SECTION 3.04. Conditions Precedent to Each Competitive Bid
Borrowing. The obligation of each Lender that is to make a Competitive Bid
Advance on the occasion of a Competitive Bid Borrowing to make such Competitive
Bid Advance as part of such Competitive Bid Borrowing is subject to the
conditions precedent that (i) the Agent shall have received the written
confirmatory Notice of Competitive Bid Borrowing with respect thereto, and (ii)
on the date of such Competitive Bid Borrowing the following statements shall be
true (and each of the giving of the applicable Notice of Competitive Bid
Borrowing and the acceptance by the Borrower of the proceeds of such Competitive
Bid Borrowing shall constitute a representation and warranty by the Borrower
that on the date of such Competitive Bid Borrowing such statements are true):
<PAGE>
(a) the representations and warranties contained in Section
4.01 are correct on and as of the date of such Competitive Bid
Borrowing, before and after giving effect to such Competitive Bid
Borrowing and to the application of the proceeds therefrom, as though
made on and as of such date,
(b) no event has occurred and is continuing, or would result
from such Competitive Bid Borrowing or from the application of the
proceeds therefrom, that constitutes a Default, and
(c) no event has occurred and no circumstance exists as a
result of which the information concerning the Borrower that has been
provided to the Agent and each Lender by the Borrower in connection
herewith would include an untrue statement of a material fact or omit
to state any material fact or any fact necessary to make the statements
contained therein, in the light of the circumstances under which they
were made, not misleading.
SECTION 3.05. Determinations Under Sections 3.01 and 3.02. For
purposes of determining compliance with the conditions specified in Sections
3.01 and 3.02, each Lender shall be deemed to have consented to, approved or
accepted or to be satisfied with each document or other matter required
thereunder to be consented to or approved by or acceptable or satisfactory to
the Lenders unless an officer of the Agent responsible for the transactions
contemplated by this Agreement shall have received notice from such Lender prior
to the proposed Effective Date, as notified by the Borrower to the Lenders,
specifying its objection thereto.
SECTION 3.06. Notice of Effective Date. Upon the occurrence of
the Effective Date, the Agent shall notify the Lenders that the Effective Date
has occurred in accordance with Sections 3.01 and 3.02, which notice shall be
conclusive and binding on the parties hereto for all purposes.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower.
The Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(b) The execution, delivery and performance by the Borrower of
this Agreement and any Notes are within the Borrower's corporate
powers, have been duly authorized by all necessary corporate action,
and do not contravene (i) the Borrower's charter or by-laws (including,
without limitation, the Series C Certificate) or (ii) any law binding
on or affecting the Borrower or any contractual restriction binding on,
or, to the best of Borrower's knowledge, affecting, the Borrower.
<PAGE>
(c) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body
is required for the due execution, delivery and performance by the
Borrower of this Agreement or the Notes.
(d) This Agreement is, and each of the Notes when delivered
hereunder will be, the legal, valid and binding obligation of the
Borrower enforceable against the Borrower in accordance with their
respective terms subject to applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights of
creditors generally.
(e) The balance sheets of the Borrower and its Subsidiaries as
at December 31, 1996, and the related statements of income and cash
flows of the Borrower and its Subsidiaries for the fiscal year then
ended, and the Consolidated balance sheet of the Borrower and its
Subsidiaries as at March 31, 1997, and the related Consolidated
statement of income and cash flows of the Borrower and its Subsidiaries
for the three months then ended, duly certified by the chief financial
officer of the Borrower, copies of which have been furnished to each
Bank, fairly present, subject, in the case of said balance sheet as at
March 31, 1997, and said statement of income and cash flows for the
three months then ended, to year-end audit adjustments, the financial
condition of the Borrower and its Subsidiaries as at such dates and the
results of the operations of the Borrower and its Subsidiaries for the
periods ended on such dates, all in accordance with generally accepted
accounting principles consistently applied. As of the Effective Date,
since December 31, 1996, there has been no Material Adverse Change.
(f) There is no pending action or proceeding against or, to
the best of the Borrower's knowledge, otherwise affecting the Borrower
or any of its Subsidiaries or, to the best of the Borrower's knowledge,
threatened action or proceeding affecting the Borrower or any of its
Subsidiaries, including, without limitation, any Environmental Action,
before any court, governmental agency or arbitrator that (i) would be
reasonably likely to have a Material Adverse Effect (other than the
Disclosed Litigation) or (ii) purports to affect the legality, validity
or enforceability of this Agreement or any Note, and there has been no
change in the status, or financial effect on the Borrower or any of its
Subsidiaries, of the Disclosed Litigation from that described on
Schedule 3.01(b) that would be reasonably expected to have a Material
Adverse Effect.
(g) Following application of the proceeds of each Advance, not
more than 25 percent of the value of the assets (either of the Borrower
only or of the Borrower and its Subsidiaries on a Consolidated basis)
subject to the provisions of Section 5.02(a) or 5.02(c) or subject to
any restriction contained in any agreement or instrument between the
Borrower and any Lender or any Affiliate of any Lender relating to Debt
and within the scope of Section 6.01(d) will be margin stock (within
the meaning of Regulations U and G issued by the Board of Governors of
the Federal Reserve System). For purposes of this Section 4.01(g),
"assets" of the
<PAGE>
Borrower or any of its Subsidiaries includes, without limitation, the
treasury stock of the Borrower that has not been retired.
(h) Other than as set forth on Schedule 4.01(h), the
operations and properties of the Borrower and each of its Subsidiaries
comply in all respects with all applicable Environmental Laws, all
necessary Environmental Permits have been obtained and are in effect
for the operations and properties of the Borrower and its Subsidiaries,
the Borrower and its Subsidiaries are in compliance with all such
Environmental Permits, except to the extent that any such noncompliance
or failure to obtain any necessary permits would not be reasonably
expected to have a Material Adverse Effect, and to the knowledge of the
Borrower, no circumstances exist that would be reasonably expected to
(i) form the basis of an Environmental Action against the Borrower or
any of its Subsidiaries or any of their properties that would have a
Material Adverse Effect or (ii) cause any such property to be subject
to any restrictions on ownership, occupancy, use or transferability
under any applicable Environmental Law that would have a Material
Adverse Effect.
(i) Other than the properties set forth on Schedule 4.01(i) or
such other properties as to which a Material Adverse Effect would not
reasonably be expected to result, none of the properties currently or
formerly owned or operated by the Borrower or any of its Subsidiaries
is listed or, to the knowledge of the Borrower, proposed for listing on
the National Priorities List under CERCLA or on the CERCLIS or any
analogous state list.
(j) Other than the locations set forth on Schedule 4.01(j) or
such other locations as to which a Material Adverse Effect would not
reasonably be expected to result, neither the Borrower nor any of its
Subsidiaries has transported or arranged for the transportation of any
Hazardous Materials to any location that is listed or, to the knowledge
of the Borrower, proposed for listing on the National Priorities List
under CERCLA or on the CERCLIS or any analogous state list; other than
as set forth on Schedule 4.01(j), Hazardous Materials have not been
released or disposed of on any property currently or formerly owned or
operated by the Borrower or any of its Subsidiaries in a manner which
would reasonably be expected to result in a Material Adverse Effect;
and except to the extent failure to do so would not reasonably be
expected to result in a Material Adverse Effect, all Hazardous
Materials have been used, treated, handled, stored and disposed of on
such properties in compliance with all applicable Environmental Laws
and Environmental Permits.
(k) No ERISA Event has occurred or is reasonably expected to
occur with respect to any Plan other than such ERISA Events as would
not, individually or in the aggregate, reasonably be expected to result
in a Material Adverse Effect.
(l) Schedule B (Actuarial Information) to the most recent
annual report (Form 5500 Series) for each Plan, copies of which will
have been filed with the Internal Revenue Service and furnished to the
Lenders is
<PAGE>
complete and accurate in all material respects and fairly presents the
funding status of such Plan as of the date set forth therein, and since
the date of such Schedule B there has been no change in such funding
status that would reasonably be expected to result in a Material
Adverse Effect.
(m) Neither the Borrower nor any of its ERISA Affiliates
(other than one considered an ERISA Affiliate only pursuant to
subsection (m) or (o) of Section 414 of the Internal Revenue Code) has
incurred or is reasonably expected to incur any Withdrawal Liability to
any Multiemployer Plan that would reasonably be expected to result in a
Material Adverse Effect.
(n) Except as would not reasonably be expected to result in a
Material Adverse Effect, neither the Borrower nor any of its ERISA
Affiliates (other than one considered an ERISA Affiliate only pursuant
to subsection (m) or (o) of Section 414 of the Internal Revenue Code)
has been notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or has been terminated, within
the meaning of Title IV of ERISA, and, to the best of the Borrower's
knowledge, no such Multiemployer Plan is reasonably expected to be in
reorganization or to be terminated, within the meaning of Title IV of
ERISA.
(o) The Borrower and its Subsidiaries have no material
liability not reflected on the Borrower's financial statements with
respect to "expected post retirement benefit obligations" within the
meaning of Statement of Financial Accounting Standards No. 106.
(p) Neither the Borrower nor any of its Subsidiaries is an
"investment company", or an "affiliated person" of, or "promoter" or
"principal underwriter" for, an "investment company", as such terms are
defined in the Investment Company Act of 1940, as amended. Neither the
making of any Advances nor the application of the proceeds or repayment
thereof by the Borrower, nor the consummation of the other transactions
contemplated hereby, will violate any provision of such Act or any
rule, regulation or order of the Securities and Exchange Commission
thereunder.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Advance
shall remain unpaid or any Lender shall have any Commitment hereunder, the
Borrower will, unless the Required Lenders shall otherwise consent in writing:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, in all material respects with all applicable
laws, rules, regulations and orders, such compliance to include,
without limitation, compliance with ERISA; provided, however, that
neither the
<PAGE>
Borrower nor any of its Subsidiaries shall be required to comply with
any applicable laws, rules, regulations or orders (i) to the extent the
applicability thereof to the Borrower is being contested in good faith
and by proper proceedings and appropriate reserves are being maintained
with respect to such circumstances in accordance with GAAP or (ii)
where the failure so to comply, either individually or in the
aggregate, would not reasonably be expected to result in a Material
Adverse Effect.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each
of its Subsidiaries to pay and discharge, before the same shall become
delinquent, (i) all income and all other material taxes, assessments
and governmental charges or levies imposed upon it or upon its property
and (ii) all lawful claims that, if unpaid, might by law become a Lien
upon its property except such claims that, either individually or in
the aggregate, would not reasonably be expected to result in a Material
Adverse Effect; provided, however, that neither the Borrower nor any of
its Subsidiaries shall be required to pay or discharge any such tax,
assessment, charge or claim that is being contested in good faith and
by proper proceedings and as to which appropriate reserves are being
maintained in accordance with GAAP.
(c) Compliance with Environmental Laws. Comply, and cause each
of its Subsidiaries and exercise its commercially reasonable efforts to
cause all lessees and other Persons occupying its properties to comply,
with all applicable Environmental Laws and Environmental Permits
applicable to its operations and properties except to the extent that
the failure so to comply would not reasonably be expected to result in
a Material Adverse Effect; obtain and renew all Environmental Permits
necessary for its operations and properties except to the extent that
the failure to obtain or renew any of such Environmental Permits would
not reasonably be expected to result in a Material Adverse Effect; and
conduct, and cause each of its Subsidiaries to conduct, any
investigation, study, sampling and testing, and undertake any cleanup,
removal, remedial or other action necessary to remove and clean up all
Hazardous Materials from any of its properties, in all material
respects in accordance with the requirements of all applicable
Environmental Laws except to the extent that the failure so to comply
would not reasonably be expected to result in a Material Adverse
Effect; provided, however, that neither the Borrower nor any of its
Subsidiaries shall be required to undertake any such cleanup, removal,
remedial or other action to the extent that its obligation to do so is
being contested in good faith and by proper proceedings and reserves
appropriate in the reasonable judgment of the Borrower and its
accountants are being maintained with respect to such circumstances.
(d) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance (which may include self-insurance
to the extent consistent with prudent business practices and otherwise
customary in their respective industries and to the extent such
self-insurance would not reasonably be expected to have a Material
Adverse Effect) with responsible and reputable insurance companies or
associations in such amounts and covering such risks as is usually
carried by companies
<PAGE>
engaged in similar businesses and owning similar properties in the same
general areas in which the Borrower or such Subsidiary operates.
(e) Preservation of Corporate Existence, Etc. Preserve and
maintain, and cause each of its Subsidiaries to preserve and maintain,
its corporate existence, material rights (charter and statutory) and
material franchises; provided, however, that the Borrower and its
Subsidiaries may consummate any merger or consolidation or liquidation
permitted under Section 5.02(c) and provided further that neither the
Borrower nor any of its Subsidiaries shall be required to preserve any
right or franchise if, in the good faith business judgment of the Board
of Directors or of a Responsible Officer of the Borrower or such
Subsidiary, the preservation thereof is no longer desirable in the
conduct of the business of the Borrower or such Subsidiary, as the case
may be, and that the loss thereof is not reasonably expected to result
in a Material Adverse Effect.
(f) Visitation Rights. At any reasonable time and from time to
time, permit the Agent or any of the Lenders or any agents or
representatives thereof to examine and make copies of and abstracts
from the records and books of account of, and visit the properties of,
the Borrower and any of its Subsidiaries, and to discuss the affairs,
finances and accounts of the Borrower and any of its Subsidiaries with
any of their officers or directors and with their independent certified
public accountants.
(g) Preparation of Environmental Reports. If a Default caused
by reason of breach of Section 4.01(f) with respect to environmental
matters (including, without limitation, with respect to any
Environmental Action), (h), (i) or (j) or 5.01(c) shall have occurred
and be continuing, at the reasonable request of the Required Lenders
through the Agent, provide to the Lenders within 90 days after such
request, at the expense of the Borrower, an environmental site
assessment report for the properties described in such request,
prepared by an environmental consulting firm acceptable to the Agent,
indicating the presence or absence of Hazardous Materials and the
estimated cost of any compliance, removal or remedial action in
connection with any Hazardous Materials on such properties.
(h) Keeping of Books. Keep, and cause each of its Subsidiaries
to keep, proper books of record and account, in which full and correct
entries shall be made of all financial transactions and the assets and
business of the Borrower and each such Subsidiary in accordance with
generally accepted accounting principles in effect from time to time.
(i) Maintenance of Properties, Etc. Maintain and preserve, and
cause each of its Subsidiaries to maintain and preserve, all of its
properties that are material in the conduct of its business in good
working order and condition, ordinary wear and tear excepted; provided,
however, that neither the Borrower nor any of its Subsidiaries shall be
required to maintain and preserve any such property if, in the good
faith business judgment of the Board of Directors or of a Responsible
Officer of the Borrower or such Subsidiary, maintenance and
preservation thereof is
<PAGE>
no longer desirable in the conduct of the business of the Borrower or
such Subsidiary, as the case may be, and that the loss thereof is not
reasonably likely to result in a Material Adverse Effect.
(j) Transactions with Affiliates. Conduct, and cause each of
its Subsidiaries to conduct, (i) other than with respect to
transactions between the Borrower and its wholly owned Subsidiaries or
between wholly owned Subsidiaries, all transactions otherwise permitted
under this Agreement with any of their Affiliates, Cyanamid or American
Home Products on terms that are fair and reasonable and no less
favorable to the Borrower or such Subsidiary (considered as a whole, in
conjunction with all other relationships and arrangements with such
Affiliates and consistent with prudent business practices) than it
would obtain in a comparable arm's-length transaction with a Person not
an Affiliate, Cyanamid or American Home Products, other than as
described on Schedule 5.01(j), and (ii) with respect to transactions
between the Borrower and its wholly owned Subsidiaries, all
transactions otherwise permitted under this Agreement on terms that are
no less favorable to the Borrower than it would obtain in a comparable
arm's-length transaction with a Person not an Affiliate except where
failure to do so would not reasonably be expected to have a Material
Adverse Effect, provided, however, that the Borrower shall not engage
in any transaction with any such Subsidiary that would render such
Subsidiary insolvent or cause a default under, or a breach of, any
material contract to which such Subsidiary is a party.
(k) Reporting Requirements. Furnish to the Lenders:
(i) as soon as available and in any event within 45
days after the end of each of the first three quarters of each
fiscal year of the Borrower, Consolidated balance sheets of
the Borrower and its Subsidiaries as of the end of such
quarter and Consolidated statements of income and cash flows
of the Borrower and its Subsidiaries for the period commencing
at the end of the previous fiscal year and ending with the end
of such quarter, duly certified (subject to year-end audit
adjustments) by the chief financial officer of the Borrower
and a certificate of the chief financial officer of the
Borrower as to compliance with the terms of this Agreement,
setting forth in reasonable detail the calculations and other
information necessary to demonstrate compliance with Section
5.03 and, if requested by the Required Lenders through the
Agent, setting forth in reasonable detail the calculations and
other information necessary to demonstrate compliance with
Sections 5.02(a) and (b);
(ii) as soon as available and in any event within 90
days after the end of each fiscal year of the Borrower, a copy
of the annual audit report for such year for the Borrower and
its Subsidiaries, containing Consolidated and consolidating
balance sheets of the Borrower and its Subsidiaries as of the
end of such fiscal year and Consolidated and consolidating
statements of income and a Consolidated statement of cash
flows, in each case,
<PAGE>
of the Borrower and its Subsidiaries for such fiscal year, in
each case accompanied by an opinion unqualified as to going
concern or other matters material in the judgment of the
Required Lenders by KPMG Peat Marwick or another "Big Six"
accounting firm or other independent public accountants of
recognized national standing reasonably acceptable to the
Required Lenders and a certificate of the chief financial
officer of the Borrower as to compliance with the terms of
this Agreement, setting forth in reasonable detail the
calculations and other information necessary to demonstrate
compliance with Section 5.03 and, if requested by the Required
Lenders through the Agent, setting forth in reasonable detail
the calculations and other information necessary to
demonstrate compliance with Sections 5.02(a) and (b);
(iii) promptly and in any event within three Business
Days after an officer of the Borrower or, with respect to
ERISA matters, the employee of the Borrower responsible for
such matters or, with respect to ERISA matters of an ERISA
Affiliate, the employee of such ERISA Affiliate responsible
for such matters, knows or should know of the occurrence of
each Default, continuing on the date of such statement, a
statement of the chief financial officer of the Borrower
setting forth details of such Default and the action which the
Borrower has taken and proposes to take with respect thereto;
(iv) promptly after the sending or filing thereof,
copies of all reports which the Borrower sends to its
securityholders generally, and copies of all reports and
registration statements which the Borrower or any Subsidiary
files with the Securities and Exchange Commission or any
national securities exchange (other than registration
statements filed on Form S-8);
(v) promptly after an officer of the Borrower knows
or should know of the occurrence thereof, notice of any
condition or occurrence on any property of the Borrower or any
of its Subsidiaries that results in a material noncompliance
by or material liability with respect to the Borrower or any
of its Subsidiaries with any applicable Environmental Law or
Environmental Permit which would reasonably be expected to (A)
form the basis of an Environmental Action against the Borrower
or any of its Subsidiaries or such property that would be
reasonably expected to have a Material Adverse Effect or (B)
cause any such property to be subject to any restrictions on
ownership, occupancy, use or transferability under any
Environmental Law that would be reasonably expected to have a
Material Adverse Effect;
(vi) promptly and in any event within 15 days after
the employee of the Borrower responsible for ERISA matters or
the employee of an ERISA Affiliate responsible for ERISA
matters knows or has reason to know that any ERISA Event has
occurred, a
<PAGE>
statement of the chief financial officer of the Borrower
describing such ERISA Event and the action, if any, that the
Borrower or such ERISA Affiliate has taken and proposes to
take with respect thereto;
(vii) promptly and in any event within three Business
Days after receipt thereof by the Borrower or any of its ERISA
Affiliates (other than one considered an ERISA Affiliate only
pursuant to subsection (m) or (o) of Section 414 of the
Internal Revenue Code), copies of each notice from the PBGC
stating its intention to terminate any Plan or to have a
trustee appointed to administer any such Plan;
(viii) promptly and in any event within 30 days after
the filing thereof with the Internal Revenue Service, copies
of each Schedule B (Actuarial Information) to the annual
report (Form 5500 Series) with respect to each Plan;
(ix) promptly and in any event within 10 Business
Days after receipt thereof by the Borrower or any of its ERISA
Affiliates (other than one considered an ERISA Affiliate only
pursuant to subsection (m) or (o) of Section 414 of the
Internal Revenue Code) from the sponsor of a Multiemployer
Plan, copies of each notice concerning (x) the imposition of
Withdrawal Liability by any such Multiemployer Plan, (y) the
reorganization or termination, within the meaning of Title IV
of ERISA, of any such Multiemployer Plan or (z) the amount of
liability incurred, or that may be incurred, by the Borrower
or any of its ERISA Affiliates in connection with any event
described in clause (x) or (y);
(x) promptly and in any event within 10 Business Days
after the effectiveness thereof, copies of each amendment to
and waiver of any provision of the Series C Certificate; and
(xi) such other information respecting the condition
or operations, financial or otherwise, of the Borrower or any
of its Subsidiaries as any Lender through the Agent may from
time to time reasonably request.
SECTION 5.02. Negative Covenants. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the Borrower
will not, without the written consent of the Required Lenders:
(a) Liens, Etc. Create or suffer to exist, or permit any of
its Subsidiaries to create or suffer to exist, any Lien on or with
respect to any of its properties, whether now owned or hereafter
acquired, or assign, or permit any of its Subsidiaries to assign, any
right to receive income, other than:
(i) Permitted Liens,
<PAGE>
(ii) (x) purchase money Liens upon or in any property
acquired or held by the Borrower or any Subsidiary to secure
the purchase price of such property or to secure Debt
(including, without limitation, Capitalized Leases) incurred
solely for the purpose of financing the acquisition or
improvement of such property, or (y) Liens existing on such
property at the time of its acquisition or improvement (other
than any such Lien created in contemplation of such
acquisition or improvement) or extensions, renewals or
replacements of any of the foregoing for the same or a lesser
amount, provided, however, that no such Lien shall extend to
or cover any property other than the property being acquired
or improved (except to the extent that construction financing
may result in an encumbrance on the underlying fee or
leasehold), and no such extension, renewal or replacement
shall extend to or cover any property not theretofore subject
to the Lien being extended, renewed or replaced, provided
further that the aggregate principal amount of the Debt
secured by the Liens referred to in subclause (x) of this
clause (ii) shall not exceed at any time outstanding
$200,000,000 (or the equivalent thereof in any Foreign
Currency, determined as of the date such Debt is issued or
incurred),
(iii) the Liens described on Schedule 5.02(a),
(iv) other Liens securing Debt and other monetary
obligations outstanding in an aggregate principal amount not
to exceed $25,000,000 (or the equivalent thereof in any
Foreign Currency, determined as of the date such Debt is
issued or incurred),
(v) Liens upon or in any property of any Person that
becomes a Subsidiary of the Borrower after the date hereof
that are existing at the time such Person becomes a Subsidiary
of the Borrower (other than any such Lien created in
contemplation of such Person becoming a Subsidiary of the
Borrower),
(vi) Liens on accounts receivable and other related
assets arising solely in connection with the sale or other
disposition of such accounts receivable in the ordinary course
of business (including Liens in connection with securitization
programs),
(vii) the replacement, extension or renewal of any
Lien permitted by clauses (ii), (iii), (iv) and (v) above upon
or in the same property theretofore subject thereto or the
replacement, extension or renewal (without increase in the
amount or change in any direct or contingent obligor) of the
Debt secured thereby,
(viii) Liens on the assets of a Subsidiary of the
Borrower securing the obligations of such Subsidiary to the
Borrower or to another Subsidiary of the Borrower,
<PAGE>
(ix) Liens on machinery and equipment of the Borrower
located in the State of Connecticut to secure performance of
the Borrower's grant obligations owing to the State of
Connecticut or any political subdivision thereof in an
aggregate principal amount not to exceed $2,500,000 from the
date hereof,
(x) Liens in respect of goods consigned to the
Borrower or any of its Subsidiaries in the ordinary course of
business, including, without limitation, goods which are the
subject of tolling agreements or manufacturing and servicing
agreements to which the Borrower or any of its Subsidiaries is
a party; provided that such Liens are limited to the goods so
consigned and the goods which are the subject of such
agreements, and
(xi) Liens consisting of the lease by the Borrower of
all or a portion of its Stamford, Connecticut property to a
third party.
(b) Debt. Permit any of its Subsidiaries to create or suffer
to exist any Debt other than:
(i) Debt owed to the Borrower or to a wholly owned
Subsidiary of the Borrower,
(ii) Debt of the Borrower's Subsidiaries existing on
the Effective Date and described on Schedule 5.02(b) (the
"Existing Debt"), and any Debt extending the maturity of, or
refunding or refinancing, in whole or in part, the Existing
Debt, provided that the terms of any such extending, refunding
or refinancing Debt, and of any agreement entered into and of
any instrument issued in connection therewith, are otherwise
not prohibited by this Agreement and provided further that the
principal amount of such Existing Debt shall not be increased
above the principal amount thereof (plus any undrawn lending
commitments in respect thereof) outstanding immediately prior
to such extension, refunding or refinancing, and the direct
and contingent obligors therefor shall not be changed, as a
result of or in connection with such extension, refunding or
refinancing,
(iii) Debt of the Borrower's Subsidiaries secured by
Liens permitted by Section 5.02(a)(ii), (iv), (vii) or (ix)
subject to any limitations set forth in such Section,
(iv) unsecured Debt of the Borrower's Subsidiaries
aggregating, on a Consolidated basis, at any one time
outstanding, not more than $150,000,000 (or the equivalent
thereof in any Foreign Currency, determined as of the date
such Debt is issued or incurred),
(v) Debt owed by any Subsidiary of the Borrower to
the
<PAGE>
Borrower or any other Subsidiary of the Borrower,
(vi) Debt ("Acquired Debt") of any Person that
becomes a Subsidiary of the Borrower after the date hereof
that is existing at the time such Person becomes a Subsidiary
of the Borrower (other than Debt incurred in contemplation of
such Person becoming a Subsidiary of the Borrower), and any
Debt extending the maturity of, or refunding or refinancing,
in whole or in part, such Acquired Debt, provided that the
terms of any such extending, refunding or refinancing Debt,
and of any agreement entered into and of any instrument issued
in connection therewith, are otherwise not prohibited by this
Agreement and provided further that the principal amount of
such Acquired Debt shall not be increased above the principal
amount thereof (plus any undrawn lending commitments in
respect thereof) outstanding immediately prior to such
extension, refunding or refinancing, and the direct and
contingent obligors therefor shall not be changed, as a result
of or in connection with such extension, refunding or
refinancing,
(vii) indorsement of negotiable instruments for
deposit or collection or similar transactions in the ordinary
course of business,
(viii) Debt incurred in connection with the sale or
other disposition of accounts receivable in the ordinary
course of business (including Debt in connection with
securitization programs), and
(ix) Debt of the Borrower's wholly owned Subsidiaries
incorporated after June 15, 1996 under the laws of Canada or
any province thereof incurred for the purpose of lending
proceeds of such Debt to other Subsidiaries of the Borrower
aggregating, on a Consolidated basis, at any one time
outstanding, not more than $60,000,000 (or the equivalent
thereof in any Foreign Currency, determined as of the date
such Debt is issued or incurred).
(c) Mergers, Etc. Merge or consolidate with or into, or
convey, transfer, lease or otherwise dispose of (whether in one
transaction or in a series of transactions) all or substantially all of
the assets of the Borrower or the Borrower and its Subsidiaries taken
as a whole (whether now owned or hereafter acquired) to any Person, or
permit any of its Subsidiaries to do so, except that any Subsidiary of
the Borrower may merge or consolidate with or into, or dispose of
assets to, or liquidate into, any other Subsidiary of the Borrower and
except that any Subsidiary of the Borrower may merge into or dispose of
assets to or liquidate into the Borrower and the Borrower and any
Subsidiary may merge or consolidate with or into, or liquidate into,
any other Person, provided in each case that, immediately after giving
effect to such proposed transaction, no Default would exist and in the
case of any merger, consolidation or liquidation to which the Borrower
is a party, if the Borrower is not the surviving entity, the Person
into
<PAGE>
which the Borrower shall be merged or formed by any such consolidation
or liquidation shall assume the Borrower's obligations hereunder and
under the Notes in an agreement or instrument reasonably satisfactory
in form and substance to all of the Lenders.
(d) Change in Nature of Business. Make, or permit any of its
Subsidiaries to make, any material change in the fundamental nature of
the business of the Borrower and its Subsidiaries, taken as a whole, as
carried on at the date hereof.
(e) Accounting Changes. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in accounting policies or
reporting practices, except as required or permitted by generally
accepted accounting principles.
SECTION 5.03. Financial Covenants. So long as any Advance
shall remain unpaid or any Lender shall have any Commitment hereunder, the
Borrower will, unless the Required Lenders otherwise consent in writing:
(a) Leverage Ratio. Maintain at all times a Leverage Ratio of
not greater than 0.60:1.
(b) Fixed Charge Coverage Ratio. Maintain a Fixed Charge
Coverage Ratio of not less than 2.50:1 for each period of four fiscal
quarters of the Borrower ending on March 31, June 30, September 30 and
December 31 of each year.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following
events ("Events of Default") shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any
Advance when the same becomes due and payable or the Borrower shall
fail to pay any interest on any Advance or make any other payment under
this Agreement or any Note within three Business Days after the same
becomes due and payable; or
(b) Any representation or warranty made by the Borrower herein
or by the Borrower (or any of its officers) in connection with this
Agreement shall prove to have been incorrect in any material respect
when made; or
(c) The Borrower shall fail to perform or observe (i) any
term, covenant or agreement contained in Section 2.20, 5.01(e), (j) or
(k)(iii), (v), (vi), (vii) or (ix), 5.02 or 5.03, or (ii) any other
term, covenant or agreement contained in this Agreement on its part to
be performed or observed if such failure shall remain unremedied for 30
<PAGE>
days after written notice thereof shall have been given to the Borrower
by the Agent or any Lender; or
(d) The Borrower or any of its Subsidiaries shall fail to pay
any principal of or premium or interest on or any other amount payable
in respect of any Debt which is outstanding in a principal amount of at
least $10,000,000 or any Hedge Agreement the Agreement Value of which
is at least $10,000,000 (or the equivalent thereof in any Foreign
Currency) in the aggregate (but excluding Debt outstanding hereunder)
of the Borrower or such Subsidiary (as the case may be), when the same
becomes due and payable (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise), and such failure shall
continue after the applicable grace period, if any, specified in the
agreement or instrument relating to such Debt or Hedge Agreement; or
any other event shall occur or condition shall exist under any
agreement or instrument relating to any such Debt or Hedge Agreement
and shall continue after the applicable grace period, if any, specified
in such agreement or instrument, if the effect of such event or
condition is to accelerate, or to permit the acceleration of, the
maturity of such Debt or Hedge Agreement; or any such Debt shall be
declared to be due and payable, or required to be prepaid (other than
by a regularly scheduled required prepayment, including, without
limitation, a prepayment required in connection with the sale of the
sole asset or all assets securing such Debt), redeemed, purchased or
defeased, or an offer to prepay, redeem, purchase or defease such Debt
shall be required to be made, in each case prior to the stated maturity
thereof; or
(e) The Borrower or any Material Subsidiary shall generally
not pay its debts as such debts become due, or shall admit in writing
its inability to pay its debts generally, or shall make a general
assignment for the benefit of creditors; or any proceeding shall be
instituted by or against the Borrower or any Material Subsidiary
seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment
of a receiver, trustee, custodian or other similar official for it or
for any substantial part of its property and, in the case of any such
proceeding instituted against it (but not instituted by it), either
such proceeding shall remain undismissed or unstayed for a period of 60
days, or any of the actions sought in such proceeding (including,
without limitation, the entry of an order for relief against, or the
appointment of a receiver, trustee, custodian or other similar official
for, it or for any substantial part of its property) shall occur; or
the Borrower or any of its Material Subsidiaries shall take any
corporate action to authorize any of the actions set forth above in
this subsection (e); or
(f) Any judgment or order for the payment of money in excess
of
<PAGE>
$10,000,000 (or the equivalent thereof in any Foreign Currency) shall
be rendered against the Borrower or any of its Material Subsidiaries
and either (i) enforcement proceedings shall have been commenced by any
creditor upon such judgment or order or (ii) there shall be any period
of 30 consecutive days during which such judgment or order remains
unpaid and a stay of enforcement of such judgment or order, by reason
of a pending appeal or otherwise, shall not be in effect; or
(g) Any non-monetary judgment or order shall be rendered
against the Borrower or any of its Subsidiaries that could be
reasonably expected to have a Material Adverse Effect, and there shall
be any period of 30 consecutive days during which a stay of enforcement
of such judgment or order, by reason of a pending appeal or otherwise,
shall not be in effect; or
(h) (i) Any Person or two or more Persons acting in concert
shall have acquired beneficial ownership (within the meaning of Rule
13d-3 of the Securities and Exchange Commission under the Securities
Exchange Act of 1934), directly or indirectly, of Voting Stock of the
Borrower (or other securities convertible into such Voting Stock)
representing 20% or more of the combined voting power of all Voting
Stock of the Borrower; or (ii) during any period of up to 24
consecutive months, commencing after the Effective Date, individuals
who at the beginning of such 24-month period were directors of the
Borrower shall cease for any reason to constitute a majority of the
board of directors of the Borrower (except to the extent that
individuals who were directors at the beginning of such 24-month period
were replaced by individuals (x) elected by a majority of the remaining
members of the board of directors of the Borrower or (y) nominated for
election by a majority of the remaining members of the board of
directors of the Borrower and thereafter elected as directors by the
shareholders of the Borrower), or (iii) any Person or two or more
Persons acting in concert (other than members of the Borrower's
management that have entered into employment agreements with the
Borrower solely to the extent such employment agreements require or
permit them to exercise a controlling influence over the management or
policies of the Borrower) shall have acquired by contract or otherwise,
or shall have entered into a contract or arrangement that, upon
consummation, will result in its or their acquisition of, the power to
exercise, directly or indirectly, a controlling influence over the
management or policies of the Borrower; or
(i) Any ERISA Event shall have occurred in an amount exceeding
$10,000,000; or
(j) The Borrower or any of its ERISA Affiliates shall have
been notified by the sponsor of a Multiemployer Plan that it has
incurred Withdrawal Liability to such Multiemployer Plan for which the
Borrower could reasonably be expected to become liable in an amount
that, when aggregated with all other amounts required to be paid to
Multiemployer Plans by the Borrower and its ERISA Affiliates as
Withdrawal Liability
<PAGE>
(determined as of the date of such notification), exceeds $10,000,000
or requires payments exceeding $2,000,000 per annum; or
(k) The Borrower or any of its ERISA Affiliates shall have
been notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or is being terminated, within
the meaning of Title IV of ERISA, the Borrower is reasonably expected
to become liable in connection with such reorganization or termination
and as a result of such reorganization or termination the aggregate
annual contributions of the Borrower and its ERISA Affiliates to all
Multiemployer Plans that are then in reorganization or being terminated
have been or will be increased over the amounts contributed to such
Multiemployer Plans for the plan years of such Multiemployer Plans
immediately preceding the plan year in which such reorganization or
termination occurs by an amount exceeding $2,000,000;
then, and in any such event, the Agent (i) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrower, declare the
obligation of each Lender to make Advances to be terminated, whereupon the same
shall forthwith terminate, and (ii) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrower, declare the
Advances and the Notes, all interest thereon and all other amounts payable under
this Agreement to be forthwith due and payable, whereupon the Advances, the
Notes, all such interest and all such amounts shall become and be forthwith due
and payable, without presentment, demand, protest or further notice of any kind,
all of which are hereby expressly waived by the Borrower; provided, however,
that in the event of an actual or deemed entry of an order for relief with
respect to the Borrower under the Federal Bankruptcy Code, (A) the obligation of
each Lender to make Advances shall automatically be terminated and (B) the
Advances and the Notes, all such interest and all such amounts shall
automatically become and be due and payable, without presentment, demand,
protest or any notice of any kind, all of which are hereby expressly waived by
the Borrower.
ARTICLE VII
THE AGENT
SECTION 7.01. Authorization and Action. Each Lender hereby
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers under this Agreement as are delegated to the Agent by
the terms hereof, together with such powers as are reasonably incidental
thereto. As to any matters not expressly provided for by this Agreement
(including, without limitation, enforcement or collection of the Notes), the
Agent shall not be required to exercise any discretion or take any action, but
shall be required to act or to refrain from acting (and shall be fully protected
in so acting or refraining from acting) upon the instructions of the Required
Lenders, and such instructions shall be binding upon all Lenders and all holders
of Notes; provided, however, that the Agent shall not be required to take any
action which exposes the Agent to personal
<PAGE>
liability or which is contrary to this Agreement or applicable law. The Agent
agrees to give to each Lender prompt notice of each notice given to it by the
Borrower pursuant to the terms of this Agreement.
SECTION 7.02. Agent's Reliance, Etc. Neither the Agent nor any
of its directors, officers, agents or employees shall be liable for any action
taken or omitted to be taken by it or them under or in connection with this
Agreement, except for its or their own gross negligence or willful misconduct.
Without limitation of the generality of the foregoing, the Agent: (i) may treat
the payee of any Note as the holder thereof until the Agent receives and accepts
an Assignment and Acceptance entered into by the Lender which is the payee of
such Note, as assignor, and an Eligible Assignee, as assignee, as provided in
Section 8.07; (ii) may consult with legal counsel (including counsel for the
Borrower), independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken in good faith by
it in accordance with the advice of such counsel, accountants or experts; (iii)
makes no warranty or representation to any Lender and shall not be responsible
to any Lender for any statements, warranties or representations (whether written
or oral) made in or in connection with this Agreement; (iv) shall not have any
duty to ascertain or to inquire as to the performance or observance of any of
the terms, covenants or conditions of this Agreement on the part of the Borrower
or to inspect the property (including the books and records) of the Borrower;
(v) shall not be responsible to any Lender for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement or
any other instrument or document furnished pursuant hereto; and (vi) shall incur
no liability under or in respect of this Agreement by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telecopier,
telegram, cable or telex) believed by it to be genuine and signed or sent by the
proper party or parties.
SECTION 7.03. Citibank and Affiliates. With respect to its
Commitment, the Advances made by it and any Note issued to it, Citibank shall
have the same rights and powers under this Agreement as any other Lender and may
exercise the same as though it were not the Agent; and the term "Lender" or
"Lenders" shall, unless otherwise expressly indicated, include Citibank in its
individual capacity. Citibank and its affiliates may accept deposits from, lend
money to, act as trustee under indentures of, and generally engage in any kind
of business with, the Borrower, any of its Subsidiaries and any Person who may
do business with or own securities of the Borrower or any such Subsidiary, all
as if Citibank were not the Agent and without any duty to account therefor to
the Lenders.
SECTION 7.04. Lender Credit Decision. Each Lender acknowledges
that it has, independently and without reliance upon the Agent or any other
Lender and based on the financial statements referred to in Section 4.01 and
such other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the 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 decisions
<PAGE>
in taking or not taking action under this Agreement.
SECTION 7.05. Indemnification. The Lenders (other than the
Designated Bidders) agree to indemnify the Agent (to the extent not reimbursed
by the Borrower), ratably according to the respective principal amounts of the
Revolving Advances then owing to them (or if no Revolving Advances are at the
time outstanding or if any Revolving Notes are held by Persons which are not
Lenders, ratably according to the respective amounts of their Commitments), from
and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever which may be imposed on, incurred by, or asserted against the
Agent in any way relating to or arising out of this Agreement or any action
taken or omitted by the Agent under this Agreement, provided that no Lender
shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the Agent's gross negligence or willful misconduct. Without
limitation of the foregoing, each Lender (other than the Designated Bidders)
agrees to reimburse the Agent promptly upon demand for its ratable share of any
out-of-pocket expenses (including counsel fees) incurred by the Agent in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, to the extent that the Agent is not
reimbursed for such expenses by the Borrower.
SECTION 7.06. Successor Agent. The Agent may resign at any
time by giving written notice thereof to the Lenders and the Borrower. Upon any
such resignation, the Required Lenders shall have the right to appoint a
successor Agent with the consent of the Borrower (which consent shall not be
unreasonably withheld or delayed). If no successor Agent shall have been so
appointed by the Required Lenders, and shall have accepted such appointment,
within 30 days after the retiring Agent's giving of notice of resignation, then
the retiring Agent may, on behalf of the Lenders, appoint a successor Agent,
which shall be a commercial bank organized under the laws of the United States
of America or of any State thereof and having a combined capital and surplus of
at least $50,000,000. Upon the acceptance of any appointment as Agent hereunder
by a successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Agent,
and the retiring Agent shall be discharged from its duties and obligations under
this Agreement. After any retiring Agent's resignation hereunder as Agent, the
provisions of this Article VII shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent under this Agreement.
<PAGE>
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or the Revolving Notes, nor consent to any departure
by the Borrower therefrom, shall in any event be effective unless the same shall
be in writing and signed by the Required Lenders, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that (a) no amendment, waiver or
consent shall, unless in writing and signed by all the Lenders (other than the
Designated Bidders), do any of the following: (i) waive any of the conditions
specified in Section 3.01 or 3.02 (ii) increase the Commitments of the Lenders
or subject the Lenders to any additional obligations, (iii) change the
percentage of the Commitments or of the aggregate unpaid principal amount of the
Revolving Notes, or the number of Lenders, which shall be required for the
Lenders or any of them to take any action hereunder or (iv) amend this Section
8.01 and (b) no amendment, waiver or consent shall, unless in writing and signed
by the Required Lenders and each affected Lender (other than the Designated
Bidders), do any of the following: (i) reduce the principal of, or interest on,
the Revolving Notes or any fees or other amounts payable hereunder or (ii)
postpone any date fixed for any scheduled payment of principal of, or interest
on, the Revolving Notes or any fees or other amounts payable hereunder; provided
further that no amendment, waiver or consent shall, unless in writing and signed
by the Agent in addition to the Lenders required above to take such action,
affect the rights or duties of the Agent under this Agreement or any Revolving
Note. No amendment or waiver of any provision of any Competitive Bid Note or the
terms and conditions of any Offer or any Competitive Bid Advance accepted by the
Borrower in writing pursuant to Section 2.15(a)(iii)(y), nor consent to any
departure by the Borrower therefrom, shall in any event be effective unless the
same shall be in writing and signed by the Lender payee of such Competitive Bid
Note or the Lender which has made, or offers to make, such Competitive Bid
Advance, as the case may be, and then any such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given.
SECTION 8.02. Notices, Etc. All notices and other
communications provided for hereunder shall be in writing (including telecopier,
telegraphic, telex or cable communication) and mailed, telecopied, telegraphed,
telexed, cabled or delivered, if to the Borrower, at its address at Five Garret
Mountain Plaza, West Paterson, New Jersey 07424, Attention: Treasurer; if to any
Bank, at its Domestic Lending Office specified opposite its name on Schedule I
hereto; if to any other Lender, at its Domestic Lending Office specified in the
Assignment and Acceptance pursuant to which it became a Lender; and if to the
Agent, at its address at 399 Park Avenue, New York, New York 10043, Attention:
Chemicals Department, North American Global Finance Group; or, as to the
Borrower or the Agent, at such other address as shall be designated by such
party in a written notice to the other parties and, as to each other party, at
such other address as shall be designated by such party in a written notice to
the Borrower and the Agent.
<PAGE>
All such notices and communications shall, when mailed, telecopied, telegraphed,
telexed or cabled, be effective when deposited in the mails, telecopied,
delivered to the telegraph company, confirmed by telex answerback or delivered
to the cable company, respectively, except that notices and communications to
the Agent pursuant to Article II, III or VII shall not be effective until
received by the Agent.
SECTION 8.03. No Waiver; Remedies. No failure on the part of
any Lender or the Agent to exercise, and no delay in exercising, any right
hereunder or under any Note shall operate as a waiver thereof; nor shall any
single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 8.04. Costs and Expenses. (a) The Borrower agrees to
pay on demand all costs and expenses of the Agent in connection with the
preparation, execution, delivery, administration, modification and amendment of
this Agreement, the Notes and the other documents to be delivered hereunder,
including, without limitation, (A) all reasonable due diligence, syndication
(including printing, distribution and bank meetings), transportation, computer,
duplication, consultant, and audit expenses and (B) the reasonable fees and
out-of-pocket expenses of counsel for the Agent with respect thereto and with
respect to advising the Agent as to its rights and responsibilities under this
Agreement. The Borrower further agrees to pay on demand all costs and expenses
of the Agent and the Lenders, if any (including, without limitation, reasonable
counsel fees and expenses), in connection with the enforcement (whether through
negotiations, legal proceedings or otherwise) of this Agreement, the Notes and
the other documents to be delivered hereunder, including, without limitation,
reasonable fees and expenses of counsel for the Agent and each Lender in
connection with the enforcement of rights under this Section 8.04(a).
(b) The Borrower agrees to indemnify and hold harmless the
Agent and each Lender and each of their Affiliates and their officers,
directors, employees, agents and advisors (each, an "Indemnified Party") from
and against any and all claims, damages, losses, liabilities and expenses
(including, without limitation, reasonable fees and expenses of counsel) that
may be incurred by or asserted or awarded against any Indemnified Party, in each
case arising out of or in connection with or by reason of, or in connection with
the preparation for a defense of, any investigation, litigation or proceeding
arising out of, related to or in connection with (i) the Notes, this Agreement
or the transactions contemplated hereby or (ii) the actual or alleged presence
of Hazardous Materials on any property of the Borrower or any of its
Subsidiaries or any Environmental Action relating in any way to the Borrower or
any of its Subsidiaries, in each case whether or not such investigation,
litigation or proceeding is brought by the Borrower, its directors, shareholders
or creditors or an Indemnified Party or any other Person or any Indemnified
Party is otherwise a party thereto and whether or not the transactions
contemplated hereby are consummated (but excluding any such claim, damage, loss,
liability or expense of any Indemnified Party (i) to the extent such claim,
damage, loss, liability or expense is found in a
<PAGE>
final, non-appealable judgment by a court of competent jurisdiction to have
resulted from such Indemnified Party's gross negligence or willful misconduct or
(ii) arising from a successful claim by the Borrower against such Indemnified
Party). The Borrower also agrees not to assert any claim against the Agent, any
Lender, any of their Affiliates, or any of their respective directors, officers,
employees, attorneys and agents, on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct or actual
damages) arising out of or otherwise relating to any of the transactions
contemplated herein or in any other Loan Document or the actual or proposed use
of the proceeds of the Advances.
(c) If any payment of principal of, or Conversion or
Redenomination of, any Eurocurrency Rate Advance or LIBO Rate Advance 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 Advance, as a result of a payment or Conversion or
Redenomination pursuant to Section 2.07(d), 2.08, 2.09, 2.11 or 2.17,
acceleration of the maturity of the Notes pursuant to Section 6.01 or for any
other reason, the Borrower shall, upon demand by such Lender (with a copy of
such demand to the Agent), pay to the Agent for the account of such Lender any
amounts required to compensate such Lender for any additional losses, costs or
expenses which it may reasonably incur as a result of such payment or Conversion
or Redenomination, including, without limitation, any loss (excluding loss of
anticipated profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by any Lender to fund or
maintain such Advance.
SECTION 8.05. Right of Setoff. Upon (i) the occurrence and
during the continuance of any Event of Default and (ii) the making of the
request or the granting of the consent specified by Section 6.01 to authorize
the Agent to declare the Advance and the Notes due and payable pursuant to the
provisions of Section 6.01, each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to setoff and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other indebtedness at any
time owing by such Lender or such Affiliate to or for the credit or the account
of the Borrower against any and all of the obligations of the Borrower now or
hereafter existing under this Agreement and the Advance owing to such Lender and
any Note held by such Lender, whether or not such Lender shall have made any
demand under this Agreement or such Note and although such obligations may be
unmatured. Each Lender agrees promptly to notify the Borrower after any such
setoff and application, provided that the failure to give such notice shall not
affect the validity of such setoff and application. The rights of each Lender
and its Affiliates under this Section are in addition to other rights and
remedies (including, without limitation, other rights of setoff) which such
Lender and its Affiliates may have.
SECTION 8.06. Binding Effect. This Agreement shall become
effective (other than Sections 2.01 and 2.15, which shall only become effective
upon satisfaction of the conditions precedent set forth in Article III) when it
shall have been executed by the Borrower and the Agent and when the Agent shall
have been notified by each Bank that such Bank has executed
<PAGE>
it and thereafter shall be binding upon and inure to the benefit of the
Borrower, the Agent and each Lender and their respective successors and assigns,
except that the Borrower shall not have the right to assign its rights hereunder
or any interest herein without the prior written consent of the Lenders.
SECTION 8.07. Assignments, Designations and Participations.
(a) Each Lender (other than the Designated Bidders) may and, if demanded by the
Borrower (following a demand by such Lender pursuant to Section 2.10 or 2.13)
upon at least 10 Business Days' notice to such Lender and the Agent, will assign
to one or more Persons all or a portion of its rights and obligations under this
Agreement (including, without limitation, all or a portion of its Commitment,
the Revolving Advances owing to it and any Revolving Note or Notes held by it);
provided, however, that (i) each such assignment shall be of a constant, and not
a varying, percentage of all rights and obligations under this Agreement (other
than any right to make Competitive Bid Advances, Competitive Bid Advances owing
to it and Competitive Bid Notes), (ii) except in the case of an assignment to a
Person that, immediately prior to such assignment, was a Lender or an assignment
of all of a Lender's rights and obligations under this Agreement, the amount of
the Commitment of the assigning Lender being assigned pursuant to each such
assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $5,000,000 and shall
be an integral multiple of $1,000,000, (iii) if the assigning Lender is
assigning less than all of its Commitment, such assigning Lender shall retain a
Commitment of at least $5,000,000, (iv) each such assignment shall be to an
Eligible Assignee, (v) the parties to each such assignment shall execute and
deliver to the Agent, for its acceptance and recording in the Register, an
Assignment and Acceptance, together with any Revolving Note or Notes subject to
such assignment and a processing and recordation fee of $2,500, (vi) each such
assignment made as a result of a demand by the Borrower pursuant to this Section
8.07(a) shall be arranged by the Borrower after consultation with the Agent and
shall be either an assignment of all of the rights and obligations of the
assigning Lender under this Agreement or an assignment of a portion of such
rights and obligations made concurrently with another such assignment or other
such assignments that together cover all of the rights and obligations of the
assigning Lender under this Agreement, (vii) no Lender shall be obligated to
make any such assignment as a result of a demand by the Borrower pursuant to
this Section 8.07(a) unless and until such Lender shall have received one or
more payments from either the Borrower or one or more Eligible Assignees in an
aggregate amount at least equal to the aggregate outstanding principal amount of
the Revolving Advances owing to such Lender, together with accrued interest
thereon to the date of payment of such principal amount and all other amounts
payable to such Lender under this Agreement and (viii) upon each such assignment
made as a result of a demand by the Borrower pursuant to this Section 8.07(a) to
an Eligible Assignee which is not, before giving effect to such assignment, a
Lender, the Borrower shall pay to the Agent a $2,500 administration fee. Upon
such execution, delivery, acceptance and recording, from and after the effective
date specified in each Assignment and Acceptance, (x) the assignee thereunder
shall be a party hereto and, to the extent that rights and obligations
<PAGE>
hereunder have been assigned to it pursuant to such Assignment and Acceptance,
have the rights and obligations of a Lender hereunder and (y) the Lender
assignor thereunder shall, to the extent that rights and obligations hereunder
have been assigned by it pursuant to such Assignment and Acceptance, relinquish
its rights and 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
Lender shall cease to be a party hereto).
(b) By executing and delivering an Assignment and Acceptance,
the Lender assignor thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto; (ii) such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of the Borrower or the performance or observance by the Borrower of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy of
this Agreement, together with copies of the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such assignee will, independently and without
reliance upon the Agent, such assigning Lender 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 decisions in taking or not taking action under
this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi)
such assignee appoints and authorizes the Agent to take such action as agent on
its behalf and to exercise such powers under this Agreement as are delegated to
the Agent by the terms hereof, together with such powers as are reasonably
incidental thereto; and (vii) such assignee agrees that it will perform in
accordance with their terms all of the obligations which by the terms of this
Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an assignee representing that it is an Eligible
Assignee, together with any Revolving Note or Notes subject to such assignment,
the Agent shall, if such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit C hereto, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Borrower. Promptly after its receipt of
such notice, the Borrower, at its own expense, shall execute and deliver to the
Agent, if requested by the assigning Lender or such Eligible Assignee, (A) in
exchange for the surrendered Revolving Note or Notes a new Revolving Note to the
order of such Eligible Assignee in an amount equal to the Commitment assumed by
it pursuant to such Assignment and Acceptance and, if the assigning Lender has
retained a Commitment hereunder,
<PAGE>
a new Revolving Note to the order of the assigning Lender in an amount equal to
the Commitment retained by it hereunder and (B) if such Eligible Assignee was
not a Lender before giving effect to such Assignment and Acceptance, a new
Competitive Bid Note to the order of such Eligible Assignee. Such new Revolving
Note or Notes shall be in an aggregate principal amount equal to the aggregate
principal amount of such surrendered Revolving Note or Notes, shall be dated the
effective date of such Assignment and Acceptance and shall otherwise be in
substantially the form of Exhibit A-1 hereto. Such new Competitive Bid Note
shall be in an aggregate principal amount equal to the aggregate Commitments of
the Lenders hereunder, shall be dated the effective date of such Assignment and
Acceptance and shall otherwise be in substantially the form of Exhibit A-2
hereto.
(d) Each Lender (other than the Designated Bidders) may
designate one or more banks or other entities to have a right to make
Competitive Bid Advances as a Lender pursuant to Section 2.15; provided,
however, that (i) no such Lender shall be entitled to make more than 2 such
designations, (ii) each such Lender making one or more of such designations
shall retain the right to make Competitive Bid Advances as a Lender pursuant to
Section 2.15, (iii) each such designation shall be to a Designated Bidder and
(iv) the parties to each such designation shall execute and deliver to the
Agent, for its acceptance and recording in the Register, a Designation
Agreement. Upon such execution, delivery, acceptance and recording, from and
after the effective date specified in each Designation Agreement, the designee
thereunder shall be a party hereto with a right to make Competitive Bid Advances
as a Lender pursuant to Section 2.15 and the obligations related thereto.
(e) By executing and delivering a Designation Agreement, the
Lender making the designation thereunder and its designee thereunder confirm and
agree with each other and the other parties hereto as follows: (i) such Lender
makes no representation or warranty and assumes no responsibility with respect
to any statements, warranties or representations made in or in connection with
this Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement or any other instrument or
document furnished pursuant hereto; (ii) such Lender makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of the Borrower or the performance or observance by the Borrower of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such designee confirms that it has received a copy of
this Agreement, together with copies of the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Designation Agreement; (iv) such designee will, independently and without
reliance upon the Agent, such designating Lender 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 decisions in taking or not taking action under
this Agreement; (v) such designee confirms that it is a Designated Bidder; (vi)
such designee appoints and authorizes the Agent to take such action as agent on
its behalf and to exercise such powers and discretion under this Agreement as
are
<PAGE>
delegated to the Agent by the terms hereof, together with such powers and
discretion as are reasonably incidental thereto; and (vii) such designee agrees
that it will perform in accordance with their terms all of the obligations which
by the terms of this Agreement are required to be performed by it as a Lender.
(f) Upon its receipt of a Designation Agreement executed by a
designating Lender and a designee representing that it is a Designated Bidder,
the Agent shall, if such Designation Agreement has been completed and is
substantially in the form of Exhibit D hereto, (i) accept such Designation
Agreement, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Borrower. Promptly after its receipt of
such notice, and before any Competitive Bid Advance shall be made by such
designee pursuant to Section 2.15, the Borrower, at its own expense, shall, if
requested by such designee, execute and deliver to the Agent a new Competitive
Bid Note to the order of such designee, which new Competitive Bid Note shall be
in an aggregate principal amount equal to the aggregate Commitments of the
Lenders hereunder, shall be dated the effective date of such Designation
Agreement and shall otherwise be in substantially the form of Exhibit A-2
hereto.
(g) The Agent shall maintain at its address referred to in
Section 8.02 a copy of each Assignment and Acceptance and each Designation
Agreement delivered to and accepted by it and a register for the recordation of
the names and addresses of the Lenders and, with respect to Lenders other than
Designated Bidders, the Commitment of, and principal amount of the Advances
owing to, each Lender from time to time (the "Register"). The entries in the
Register shall be conclusive and binding for all purposes, absent manifest
error, and the Borrower, the Agent and the Lenders may treat each Person whose
name is recorded in the Register as a Lender hereunder for all purposes of this
Agreement. 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.
(h) Each Lender may sell participations to one or more banks
or other entities in or to all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion of its
Commitment, the Advances owing to it and any Note or Notes held by it);
provided, however, that (i) such Lender's obligations under this Agreement
(including, without limitation, its Commitment to the Borrower hereunder) shall
remain unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, (iii) such Lender shall
remain the holder of any such Note for all purposes of this Agreement, (iv) the
Borrower, the Agent and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and (v) no participant under any such
participation shall have any right to approve any amendment or waiver of any
provision of this Agreement or any Note, or any consent to any departure by the
Borrower therefrom, except to the extent that such amendment, waiver or consent
would reduce the principal of, or interest on, the Advances or the Notes or any
fees or other amounts payable hereunder, in each case to the
<PAGE>
extent subject to such participation, or postpone any date fixed for any payment
of principal of, or interest on, the Advance or the Notes or any fees or other
amounts payable hereunder, in each case to the extent subject to such
participation.
(i) Any Lender may, in connection with any assignment,
designation or participation or proposed assignment, designation or
participation pursuant to this Section 8.07, disclose to the assignee, designee
or participant or proposed assignee, designee or participant, any information
relating to the Borrower furnished to such Lender by or on behalf of the
Borrower; provided that, prior to any such disclosure, the assignee, designee or
participant or proposed assignee, designee or participant shall agree to
preserve the confidentiality of any confidential information relating to the
Borrower received by it from such Lender.
(j) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time create a security interest in all or any
portion of its rights under this Agreement (including, without limitation, the
Advances owing to it and the Note or Notes held by it) in favor of any Federal
Reserve Bank in accordance with Regulation A of the Board of Governors of the
Federal Reserve System.
SECTION 8.08. Confidentiality. (a) Neither the Agent nor any
Lender shall disclose any Confidential Information to any Person without the
consent of the Borrower, other than (i) to the Agent's or such Lender's
Affiliates and their officers, directors, employees, agents and advisors and to
actual or prospective Eligible Assignees and participants, and then only on a
confidential basis, (ii) as required by any law, rule or regulation or judicial
process, provided that the Agent or such Lender, as the case may be, shall give
prior notice thereof to the Borrower when practicable, and (iii) as requested or
required by any state, federal or foreign authority or examiner regulating banks
or banking.
(b) Each Lender agrees that it will use the Confidential
Information only in connection with this Agreement (and any refinancings
hereof), the Advances made by it hereunder, its Commitment, the transactions
contemplated hereby and other transactions with the Borrower and any of its
Subsidiaries.
SECTION 8.09. Governing Law. This Agreement and the Notes
shall be governed by, and construed in accordance with, the laws of the State of
New York.
SECTION 8.10. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
<PAGE>
SECTION 8.11. Jurisdiction, Etc. (a) Each of the parties
hereto hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the Notes, or for recognition or enforcement of
any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in any such New York State or, to the
extent permitted by law, in such federal court. Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement shall affect any
right that any party may otherwise have to bring any action or proceeding
relating to this Agreement or the Notes in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or the Notes
in any New York State court or federal court of the United States of America
sitting in New York City. Each of the parties hereto hereby irrevocably waives,
to the fullest extent permitted by law, the defense of an inconvenient forum to
the maintenance of such action or proceeding in any such court.
SECTION 8.12. Judgment. (a) If for the purposes of obtaining
judgment in any court it is necessary to convert a sum due hereunder or under
the Notes in any currency (the "Original Currency") into another currency (the
"Other Currency") the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Agent could purchase the Original
Currency with the Other Currency at 9:00 A.M. (New York City time) on the first
Business Day preceding that on which final judgment is given.
(b) The obligation of the Borrower in respect of any sum due
in the Original Currency from it to any Lender or the Agent hereunder or under
the Note or Notes held by such Lender shall, notwithstanding any judgment in any
Other Currency, be discharged only to the extent that on the Business Day
following receipt by such Lender or the Agent (as the case may be) of any sum
adjudged to be so due in such Other Currency, such Lender or the Agent (as the
case may be) may in accordance with normal banking procedures purchase Dollars
with such Other Currency; if the amount of Dollars so purchased is less than the
sum originally due to such Lender or the Agent (as the case may be) in the
Original Currency, the Borrower agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify such Lender or the Agent (as the
case may be) against such loss, and if the amount of Dollars so purchased
exceeds the sum originally due to any Lender or the Agent (as the case may be)
in the Original Currency, such Lender or the Agent (as the case
<PAGE>
may be) agrees to remit to the Borrower such excess.
SECTION 8.13. Effective Date Assignments; Etc. (a) As of the
Effective Date, prior to giving effect to any assignment under this Agreement as
of such date, each Existing Lender represents and warrants, as to the assignment
effected by such Existing Lender by this Agreement that as of the Effective Date
(i) its Existing Commitment is in the dollar amount specified as its Existing
Commitment on Schedule 8.13 hereto and the aggregate outstanding principal
amount of Existing Advances owing to it is in the dollar amount specified as the
aggregate outstanding principal amount of Existing Advances owing to such
Existing Lender on Schedule 8.13 hereto; and (ii) that such Existing Lender is
the legal and beneficial owner of such interest being assigned by it hereunder
and that such interest is free and clear of any adverse claim created by such
Existing Lender.
(b) Each Existing Lender and Bank confirms to, and agrees
with, each of the other Banks as to the assignment effected by this Agreement by
such Existing Lender or Bank, as the case may be, as follows: (i) each such
Existing Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Original Credit Agreement or this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of the Original Credit Agreement or this Agreement or any other instrument
or document furnished pursuant thereto or hereto; (ii) each such Existing Lender
makes no representation or warranty and assumes no responsibility with respect
to the financial condition of the Borrower or any of its Subsidiaries or the
performance of observance by the Borrower or any of its Subsidiaries of any of
its obligations under the Original Credit Agreement or this Agreement or any
other instrument or document furnished pursuant thereto or hereto; (iii) each
Bank confirms that it has received such documents and information as it has
deemed appropriate to make its own credit analysis and decision to execute and
deliver this Agreement and agrees that it shall have no recourse against the
Agent, any Existing Lender or any other Lender with respect to any matters
relating to the Original Credit Agreement or this Agreement; and (iv) each Bank
will, independently and without reliance upon the Agent, any Existing Lender 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 decisions in taking or
not taking action under this Agreement, the Note or Notes held by it and the
other documents executed in connection herewith.
(c) As of the Effective Date, (i) each Bank shall be a party
to this Agreement and, to the extent provided herein, have the rights and
obligations of a Lender hereunder and (ii) each Existing Lender shall, to the
extent provided herein, relinquish its rights and be released from its
obligations under this Agreement as to any assignment effected herein.
(d) From and after the Effective Date, the Agent shall make
all payments under this Agreement in respect of the interest assigned hereby
(including, without limitation, all payments of principal, interest and
commitment fees with respect thereto) to the Banks and other Lenders
<PAGE>
hereunder.
(e) On or before the Effective Date, the Borrower shall have
paid all accrued interest, fees and other amounts payable and owing to the
Existing Lenders and the Agent (as defined in the Existing Credit Agreement) as
of the Effective Date in connection with the Existing Credit Agreement. Without
prejudice to the survival of any other agreement of the Borrower under the
Existing Credit Agreement, all amounts that would be payable under Sections
2.10, 2.13 and 8.04 of the Existing Credit Agreement shall be payable under this
Agreement to the extent that such amounts have not been paid as of the Effective
Date.
(f) As of the Effective Date, (i) the Existing Credit
Agreement is amended and restated in full as set forth in this Agreement, (ii)
the Existing Commitments are terminated, (iii) the Notes (as defined in the
Existing Credit Agreement) are cancelled and replaced by the Notes, if any have
been requested in accordance with the terms of this Agreement, (iv) all
obligations which, by the terms of the Existing Credit Agreement, are evidenced
by the Notes (as defined in the Existing Credit Agreement) are evidenced by the
Notes, if any have been requested in accordance with the terms of this
Agreement, and by this Agreement and (v) no fees shall be payable by the
Borrower pursuant to Section 2.03(a) of the Existing Credit Agreement, except to
the extent that such fees become due and payable, and remain unpaid, on or prior
to the Effective Date.
SECTION 8.14. Waiver of Jury Trial. Each of the Borrower, the
Agent and the Lenders hereby irrevocably waives all right to trial by jury in
any action, proceeding or counterclaim (whether based on contract, tort or
otherwise) arising out of or relating to this Agreement or the Notes or the
actions of the Agent or any Lender in the negotiation, administration,
performance or enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
CYTEC INDUSTRIES INC.
By/s/ J. P. Cronin
-----------------------
Title: Executive Vice President
and Chief Financial Officer
CITIBANK, N.A.,
as Agent
By/s/ Steven R. Victorin
-----------------------
Title: Vice President
<PAGE>
$200,000,000 Total of the Commitments
============
Commitment Banks
---------- -----
$40,000,000 CITIBANK, N.A.
By/s/ Steven R. Victorin
----------------------------
Title: Vice President
$30,000,000 CORESTATES BANK, N.A.
By/s/ Melissa G. Landay
----------------------------
Title: Vice President
$30,000,000 CREDIT LYONNAIS
NEW YORK BRANCH
By/s/ Rod Hurst
----------------------------
Title: Vice President
<PAGE>
$30,000,000 FIRST UNION NATIONAL BANK
By/s/ Christopher McLaughlin
----------------------------
Title: Vice President
$30,000,000 MELLO BANK, N.A.
By/s/ John K. Walsh
----------------------------
Title: Vice President
$25,000,000 PNC BANK, NATIONAL ASSOCIATION
By/s/ Michael Nardo
----------------------------
Title: Vice President
$15,000,000 THE DEVELOPMENT BANK OF
SINGAPORE LTD.
By/s/ Wil Kim Long
----------------------------
Title: General Manager
<PAGE>
Exhibit 11 (a)
CYTEC INDUSTRIES INC. AND SUBSIDIARIES
Earnings Per Share Computations
(Unaudited)
(Millions of Dollars, except share and per share amounts)
Three Months Ended
June 30, 1997
------------------
Primary Fully Diluted
------- -------------
Net earnings available for common stockholders $27.8 $27.8
====== =====
Weighted average number of shares of common
stock outstanding during the period exclusive
of the following: 45.5 45.5
Common stock equivalents:
Restricted stock .1 .1
Non qualified stock options 1.9 1.9
Adjusted weighted average number of shares of
common stock outstanding during the period 47.5 47.5
===== ====
Earnings per share $0.59 $0.59
===== =====
See Note 2 of the Notes to the Consolidated Financial Statements included herein
for explanation of earnings per share.
<PAGE>
Exhibit 11 (b)
CYTEC INDUSTRIES INC. AND SUBSIDIARIES
Earnings Per Share Computations
(Unaudited)
(Millions of Dollars, except share and per share amounts)
Three Months Ended
June 30, 1996
-----------------------
Primary Fully Diluted
------- -------------
Net earnings available for common stockholders $25.4 $25.4
====== =====
Weighted average number of shares of common
stock outstanding during the period exclusive
of the following: 47.6 47.6
Common stock equivalents:
Restricted stock .2 .2
Non qualified stock options 2.0 2.0
Adjusted weighted average number of shares of
common stock outstanding during the period 49.8 49.8
===== ====
Earnings per share $0.51 $0.51
===== =====
See Note 2 of the Notes to the Consolidated Financial Statements included herein
for explanation of earnings per share.
<PAGE>
Exhibit 11 (c)
CYTEC INDUSTRIES INC. AND SUBSIDIARIES
Earnings Per Share Computations
(Unaudited)
(Millions of Dollars, except share and per share amounts)
Six Months Ended
June 30, 1997
----------------------
Primary Fully Diluted
------- -------------
Net earnings available for common stockholders $54.7 $54.7
====== =====
Weighted average number of shares of common
stock outstanding during the period exclusive
of the following: 45.6 45.6
Common stock equivalents:
Restricted stock .1 .1
Non qualified stock options 2.0 2.0
Adjusted weighted average number of shares of
common stock outstanding during the period 47.7 47.7
===== =====
Earnings per share $1.15 $1.15
===== =====
See Note 2 of the Notes to the Consolidated Financial Statements included herein
for explanation of earnings per share.
<PAGE>
Exhibit 11 (d)
CYTEC INDUSTRIES INC. AND SUBSIDIARIES
Earnings Per Share Computations
(Unaudited)
(Millions of Dollars, except share and per share amounts)
Six Months Ended
June 30, 1996
----------------------
Primary Fully Diluted
------- -------------
Net earnings available for common stockholders $48.0 $48.0
====== =====
Weighted average number of shares of common
stock outstanding during the period exclusive
of the following: 48.2 48.2
Common stock equivalents:
Restricted stock .2 .2
Non qualified stock options 2.1 2.1
Adjusted weighted average number of shares of
common stock outstanding during the period 50.5 50.5
===== =====
Earnings per share $ 0.94 $ 0.94
===== =====
See Note 2 of the Notes to the Consolidated Financial Statements included herein
for explanation of earnings per share.
<PAGE>
Exhibit 12
Cytec Industries Inc.
Computation of Ratio of Earnings to Fixed Charges
(Dollar amounts in millions)
<TABLE>
<CAPTION>
Three Six
Months Ended Months Ended
6/30/97 6/30/96 6/30/97 6/30/96
<S> <C> <C> <C> <C>
Earnings (loss) before income taxes 47.2 44.1 92.3 83.2
Add:
Interest on indebtedness
net of capitalized interest 0.9 1.4 2.7 2.8
Portion of rents representative
of the interest factor 1.3 1.3 2.6 2.7
---- ---- ---- ----
Earnings as adjusted 49.4 46.8 97.6 88.7
Fixed charges:
Interest on indebtedness 1.1 1.7 3.1 3.3
Portion of rents representative
of the interest factor 1.3 1.3 2.6 2.7
---- ---- ---- ----
Fixed charges 2.4 3.0 5.7 6.0
---- ---- ---- ----
Ratio of earnings to fixed charges 20.6 15.6 17.1 14.8
---- ---- ---- ----
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted fromn Form-10Q
and is qualified in its entirety by reference to such financial statements.
</LEGEND>
<MULTIPLIER> 1,000
<CURRENCY> U.S. DOLLAR
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> JUN-30-1997
<EXCHANGE-RATE> 1
<CASH> 22,700
<SECURITIES> 0
<RECEIVABLES> 209,000
<ALLOWANCES> 9,500
<INVENTORY> 86,500
<CURRENT-ASSETS> 401,800
<PP&E> 1,186,900
<DEPRECIATION> (658,300)
<TOTAL-ASSETS> 1,183,600
<CURRENT-LIABILITIES> 323,100
<BONDS> 0
0
100
<COMMON> 500
<OTHER-SE> 319,200
<TOTAL-LIABILITY-AND-EQUITY> 1,183,600
<SALES> 622,000
<TOTAL-REVENUES> 622,000
<CGS> 454,100
<TOTAL-COSTS> 566,300
<OTHER-EXPENSES> (25,700)<F1>
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> (100)<F2>
<INCOME-PRETAX> 90,000<F3>
<INCOME-TAX> 35,300
<INCOME-CONTINUING> 54,700
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 54,700
<EPS-PRIMARY> 1.15
<EPS-DILUTED> 1.15
<FN>
<F1>This number includes gain on sale of businesses of $22,300,000 for the six
months ended June 30, 1997.
<F2>This number represents interest (income)/expense, net
<F3>This number includes equity in net income of associated companies of
$8,500,000 for the six months ended June 30, 1997.
</FN>
</TABLE>
<PAGE>
Exhibit 99(a)
Pursuant to Rule 12b-23 under the Securities and Exchange Act, the following
Exhibit containing text from the Company's Annual Report on Form 10-K is filed
as to matters incorporated by reference in Part II, Item 1 ("Legal
Proceedings").
Environmental Matters
The Company is subject to various federal, state and foreign laws and
regulations which impose stringent requirements for the control and abatement of
air and water pollutants and contaminants and the manufacture, transportation,
storage, handling and disposal of hazardous substances, hazardous wastes,
pollutants and contaminants.
In particular, under the Comprehensive Environmental Response, Compensation and
Liability Act ("CERCLA") and various other federal and state laws, a current or
previous owner or operator of a facility may be liable for the removal or
remediation of hazardous materials at the facility. Such laws typically impose
liability without regard to whether the owner or operator knew of, or was
responsible for, the presence of such hazardous materials. In addition, pursuant
to the Resource Conservation and Recovery Act ("RCRA") and state laws governing
the generation, transportation, treatment, storage or disposal of solid and
hazardous wastes, owners and operators of facilities may be liable for removal
or remediation, or other corrective action at areas where hazardous materials
have been released at a facility. The costs of removal, remediation or
corrective action may be substantial, and the presence of hazardous materials in
the environment at any of the Company's facilities, or the failure to abate such
materials promptly or properly, may adversely affect the Company's ability to
operate such facilities. CERCLA and analogous state laws also impose liability
for investigative, removal and remedial costs on persons who dispose of or
arrange for the disposal of hazardous substances at facilities owned or operated
by third parties. Liability for investigative, removal and remedial costs under
such laws is retroactive, strict, and joint and several.
The Clean Air Act and similar state laws govern the emission of pollutants into
the atmosphere. The Federal Water Pollution Control Act and similar state laws
govern the discharge of pollutants into the waters of the United States. RCRA
and similar state laws govern the generation, transportation, treatment,
storage, and disposal of solid and hazardous wastes. Finally, the Toxic
Substances Control Act regulates the manufacture, processing, and distribution
of chemical substances and mixtures, as well as the disposition of certain
hazardous substances. The costs of compliance with such laws and regulations
promulgated thereunder may be substantial, and regulatory standards under such
statutes tend to evolve towards more stringent requirements, which might, from
time-to-time, make it uneconomic or impossible to continue operating a facility.
Non-compliance with such requirements at any of the Company's facilities could
result in substantial civil penalties or the inability of the Company to operate
all or part of the facility.
In addition, certain state and federal laws govern the abatement, removal, and
disposal of asbestos-containing materials and the maintenance of underground
storage tanks and equipment which contains or is contaminated by polychlorinated
biphenyls.
