SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended July 31, 1997
Commission file number 1-12854
McWhorter Technologies, Inc.
(Exact name of registrant as specified in its charter)
Delaware 36-3919940
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
400 East Cottage Place
Carpentersville, Illinois 60110
(Address of principal executive offices, including zip
code)
847-428-2657
(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
Number of shares outstanding of each of the issuer's
classes of common stock, as of the latest practicable
date: 10,352,826 shares as of August 31, 1997.
<PAGE>
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
The accompanying interim financial statements of
McWhorter Technologies, Inc. (the "Company" or
"McWhorter") do not include all disclosures normally
provided in annual financial statements. These
financial statements, which should be read in
conjunction with the financial statements contained in
McWhorter's Annual Report on Form 10-K for the fiscal
year ended October 31, 1996, are unaudited but include
all adjustments that McWhorter's management considers
necessary for a fair presentation. These adjustments
consist of normal recurring accruals. Interim results
are not necessarily indicative of the results for the
year. All references to years are to fiscal years
ended October 31.
<TABLE>
STATEMENTS OF INCOME
<CAPTION>
Quarter Ended Nine Months Ended
July 31, July 31,
Dollars in thousands, except
per share amounts 1997 1996 1997 1996
<S> <C> <C> <C> <C>
Net sales $85,581 $87,144 $237,997 $229,301
Costs and expenses:
Cost of sales 71,018 73,148 199,849 193,918
Research 2,131 2,078 6,255 5,750
Selling, general and
administrative 4,139 4,150 12,096 12,072
Other (income) expense,
net (Note 1) (94) 19 870 39
Income from operations 8,387 7,749 18,927 17,522
Interest expense, net 366 418 1,027 1,262
Income before income taxes 8,021 7,331 17,900 16,260
Income tax expense (Note 2) 3,189 2,971 6,678 6,585
Net income $ 4,832 $ 4,360 $11,222 $ 9,675
Net income per share (Note 4) $ .46 $ .42 $ 1.07 $ .92
</TABLE>
See Notes to Financial Statements
<PAGE>
<TABLE>
BALANCE SHEETS
<CAPTION>
(Dollars in thousands, except per share amounts)
July 31, October 31,
1997 1996
<S> <C> <C>
Assets
Current assets:
Cash (Note 3) $ 48,561 $ 1,060
Accounts receivable 45,491 47,166
Inventories (Note 5) 21,469 18,151
Other current assets 7,265 5,019
122,786 71,396
Property, plant and equipment 113,630 107,119
Accumulated depreciation (40,624) (33,489)
Net property, plant and equipment 73,006 73,630
Other assets 8,618 8,228
$204,410 $153,254
Liabilities & Shareholders' Equity
Current liabilities:
Short-term debt $ 9,748 $ 9,995
Trade accounts payable 22,845 26,363
Accrued liabilities 12,269 10,504
44,862 46,862
Long-term debt, less current portion
(Note 3) 58,123 13,145
Deferred income taxes 11,846 10,486
Accrued environmental liabilities 2,201 3,037
Shareholders' equity:
Common stock (par value $.01 per share;
authorized 30,000,000 shares; issued
and outstanding 10,352,333 shares at
July 31, 1997 and 10,465,940 at
October 31, 1996) 110 110
Additional paid-in capital 10,866 10,803
Retained earnings 88,784 77,562
Currency translation adjustments (1,020) (74)
Restricted stock awards (1,633) (1,463)
Treasury stock, at cost (613,214
shares at July 31, 1997 and 499,607
shares at October 31, 1996) (9,729) (7,214)
87,378 79,724
$204,410 $153,254
</TABLE>
See Notes to Financial Statements
<PAGE>
<TABLE>
STATEMENTS OF CASH FLOWS
<CAPTION>
Nine Months Ended
July 31,
Dollars in thousands
1997 1996
<S> <C> <C>
Operating Activities
Net income $11,222 $ 9,675
Adjustments to reconcile net income to
net cash provided by operating activities:
Depreciation and amortization 7,236 6,692
Deferred income taxes 609 4,080
Other, net 203 (277)
Changes in working capital:
Accounts receivable 1,675 (5,661)
Inventories (3,318) (10,000)
Trade accounts payable & accrued
liabilities (1,753) 11,661
Other current assets (1,495) 977
Net cash provided by operating activities 14,379 17,147
Investing Activities
Capital expenditures (6,614) (4,779)
Investment in joint venture (2,343)
Other, net 24
Net cash used by investing activities (8,957) (4,755)
Financing Activities
Increase (decrease) in debt, net 44,731 (8,258)
Purchase of treasury stock (2,683) (5,667)
Proceeds from exercise of stock options 31 102
Net cash provided (used) by financing activities 42,079 (13,823)
Increase (decrease) in cash 47,501 (1,431)
Cash at beginning of period 1,060 1,904
Cash at end of period $48,561 $ 473
</TABLE>
See Notes to Financial Statements
<PAGE>
<TABLE>
STATEMENT OF CHANGES IN SHAREHOLDERS' EQUITY
<CAPTION>
Dollars in thousands, except share amounts
Common Stock
Additional
Paid-in
Shares Amount Capital
<S> <C> <C> <C>
Balance October 31, 1996 10,465,940 $110 $10,803
Net income
Issuance of common stock
for restricted stock awards 8,993 69
Exercise of stock options 2,622 (6)
Purchase of treasury stock (125,222)
Currency translation adjustments
Balance July 31, 1997 10,352,333 $110 $10,866
</TABLE>
<TABLE>
Currency Restricted
Retained Translation Stock Treasury
Earnings Adjustments Awards Stock
<S> <C> <C> <C> <C>
Balance October 31, 1996 $77,562 $ ( 74) $(1,463) $(7,214)
Net income 11,222
Issuance of stock for
restricted stock awards (170) 131
Exercise of stock options 37
Purchase of treasury stock (2,683)
Currency translation adjustments (946)
Balance July 31, 1997 $88,784 $(1,020) $(1,633) $(9,729)
</TABLE>
See Notes to Financial Statements
<PAGE>
NOTES TO FINANCIAL STATEMENTS
1. Nine month results for 1997 included a
pretax charge of $615,000 ($366,000 after
taxes, or $.04 per share) for certain
costs, primarily severance, related to
the Company's upcoming relocation of the
Minneapolis research facility to
Carpentersville in the first half of
1998. Additionally, the results included
a pretax charge of $196,000 ($117,000
after taxes, or $.01 per share) for the
write-off of a tax related receivable.
2. Nine month results for 1997 included a
tax benefit recorded in the second
quarter of $591,000 ($.06 per share) that
resulted from the conclusion of an income
tax audit for the period prior to the
Company s spin-off in 1994.
3. July 31, 1997 debt and cash levels
reflect borrowing to fund the August 1,
1997 acquisition of Syntech S.p.A., a
privately-owned Italian-based liquid and
powder resins company.
4. Net income per share amounts were
computed on the basis of the weighted
average number of common and common
equivalent shares outstanding. Such
weighted average shares used in the
computations were 10,397,611 and
10,430,434 for the quarters ended July
31, 1997 and 1996, respectively, and
10,474,193 and 10,486,971 for the nine
months ended July 31, 1997 and 1996,
respectively.
5. The major classes of inventories consist
of the following:
<TABLE>
Dollars in thousands
<CAPTION>
July 31, October 31,
1997 1996
<S> <C> <C>
Manufactured products $14,293 $11,916
Raw materials, supplies and work-in-process 7,176 6,235
$21,469 $18,151
</TABLE>
6. In February 1997, the Financial
Accounting Standards Board issued
Statement of Financial Accounting
Standard No. 128, Earnings Per Share ,
which is required to be adopted for
financial statements for periods ending
after December 15, 1997. The Company
will be required to change the method
currently used to compute earnings per
share to restate all prior periods. The
Company s primary earnings per share as
reflected in the accompanying statements
of income are not materially different
from basic and diluted earnings per share
calculated under the new methodology.
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF RESULTS OF OPERATIONS AND
FINANCIAL CONDITION
General
The following discussion and analysis of
results of operations and financial condition
of McWhorter should be read in conjunction
with the financial statements and notes
thereto included in the Company's Annual
Report on Form 10-K for the fiscal year ended
October 31, 1996. Except for historical
information contained herein, certain matters
set forth in this Form 10-Q are forward-
looking statements that involve certain risks
and uncertainties that could cause actual
results to differ materially from those in
the forward-looking statements.
Results of Operations
Net sales decreased 2 percent in the third
quarter to $85,581,000 compared to
$87,144,000 in the same period of 1996. For
the nine months, net sales were $237,997,000,
a 4 percent increase versus net sales of
$229,301,000 in the comparable period a year
ago. The decrease in net sales in the third
quarter was due primarily to a decrease in
volume, while price and mix remained flat.
Volume was off in the quarter due primarily
to the loss of low margin industrial toll
business. For the nine months, the increase
in net sales was due to 6 percent volume and
1 percent mix increases, offset by a 3
percent price decrease. Volume improvement
for the nine month period was due in large
part to growth with national accounts.
The Company's gross profit margin for the
third quarter of 1997 was 17.0 percent
compared to 16.1 percent in last year's third
quarter. For the nine months, the gross
profit margin was 16.0 percent versus
15.4 percent for the comparable period a year ago.
Current year margins were favorably impacted
by the combination of stability in raw
material costs and cost reductions achieved
through a number of ongoing internal process
improvements. These favorable effects were
partially offset by lower sales prices and
higher sales of resin for the architectural
market which are typically lower margin,
compared to the prior year periods.
Operating expenses (research, selling,
general and administrative) for the third
quarter were 7.3 percent of sales compared to
7.1 percent in the prior year third quarter.
For the nine months, operating expenses were
7.7 percent of sales compared to 7.8 percent for
the same period a year ago. Higher actual
expenses compared to the prior year were
primarily the result of additional research
personnel.
In February of 1997, the Company announced
plans to construct a 41,900 square foot
laboratory facility in Carpentersville,
Illinois. The projected cost of this new
facility is $6,800,000, and is scheduled to
open in the spring of 1998. As a result of
this project, the Company will be closing the
facility that is currently leased in
Minneapolis. Employees from product
development and technical support groups will
be relocated to the new facility to serve
McWhorter s Liquid Coatings, Powder Coatings
and Composite Polymer businesses.
Approximately 36 employees in Research and
Development and Information Technology
Services will be impacted by the closing.
<PAGE>
In total, the Company expects to incur
approximately $1,300,000 of pretax charges to
operating earnings, $773,500 after taxes, or
$.08 per share related to this move. Due to
the Company s decision in February, an after
tax charge of $.04 per share was recorded in
the second quarter of 1997 primarily for
costs associated with the estimated amount of
termination benefits to be paid to certain
employees. The Company also expects to
record an after-tax charge, primarily in the
second quarter of 1998, of $.03 to $.05 per
share for costs to be incurred in connection
with the relocation of existing employees,
hiring of new employees, and costs related to
moving equipment from Minneapolis to Carpentersville.
Other expense in the nine month period of
1997 included $615,000 of expenses for
certain costs, primarily severance, related
to the Company s upcoming relocation of the
Minneapolis research facility to
Carpentersville. Additionally, the 1997 nine
month results included an expense of $196,000
for the write-off of a tax related receivable.
On August 1, 1997 the Company completed its
acquisition of Syntech S.p.A., a privately-
owned Italian-based liquid and powder resins
company with 1996 sales of approximately $85
million.
Higher debt and cash levels at July 31, 1997
reflect borrowing to fund the August 1, 1997
acquisition of Syntech S.p.A.
Net interest expense decreased $52,000, or 12
percent, and $235,000, or 19 percent, for the
third quarter and first nine months of 1997,
respectively, compared to the same periods in
1996. These comparisons reflect a reduction
in total debt, excluding the acquisition
borrowing of $48 million, of approximately $4
million from July 31, 1996.
The effective tax rate for the third quarter
and first nine months of 1997 was 39.8 percent
and 37.3 percent, respectively, versus 40.5 percent
in the comparable periods a year ago. Refer to
Note 2 of Notes to Financial Statements for
discussion of the tax benefit recorded in the
second quarter of 1997.
Net income for the third quarter was
$4,832,000, or $.46 per share, a per-share
increase of 10 percent over last year's third quarter net
income of $4,360,000, or $.42 per share. For
the nine months, net income was $11,222,000,
or $1.07 per share, a per-share increase of
16 percent over last year's nine month net
income of $9,675,000, or $.92 per share. The
first nine months of 1997 included a positive
net effect of $.01 per share for certain
nonrecurring items. Refer to Note 1 and Note 2
of Notes to Financial Statements for
discussion of these items.
Financial Condition
In the first nine months of 1997 cash
generated by operations was $14,379,000
compared to $17,147,000 in the comparable
period a year ago. The difference was
primarily from changes in working capital,
and a lower deferred tax provision recorded
in the current year compared to the prior
year due to the recording of deferred tax
assets associated with the tax benefit taken
in the second quarter of 1997. The Company's
current ratio was 2.7 at July 31, 1997
compared to 1.5 at October 31, 1996. The
increase in the current ratio was due to the
$48 million borrowed on July 31, 1997 to fund
the August 1, 1997 acquisition of Syntech S.p.A.
<PAGE>
Investing activities used cash of $8,957,000
in the first nine months of 1997 compared to
$4,755,000 in the comparable period a year
ago. The increase was primarily because the
Company made its initial funding of its
equity portion of the joint venture in
McWhorter Technologies Thailand Company, Ltd.
(McWhorter Thailand) in the amount of
$2,343,000 in the first quarter of 1997.
This 40 percent equity investment is
accounted for under the equity method, and is
carried as a long-term investment in other
assets on the balance sheet. Capital
expenditures of $6,614,000 and $4,779,000 in
the first nine months of 1997 and 1996,
respectively, were primarily for productivity
improvements. Capital spending for fiscal
year 1997 is currently anticipated to be
between $9,000,000 and $10,000,000.
Financing activities provided cash of
$42,079,000 in the first nine months of 1997
compared to using cash of $13,823,000 in the
comparable period a year ago. Debt as a
percentage of invested capital was 43.7
percent at July 31, 1997, up from 22.5
percent at October 31, 1996. Total debt
increased to $67,871,000 at July 31, 1997
from $23,140,000 at October 31, 1996. This
increase was primarily attributed to the
borrowing of $48 million to fund the August
1, 1997 acquisition of Syntech S.p.A., the
Company s funding of its equity investment in
McWhorter Thailand in the amount of
$2,343,000, and the repurchase of common
stock for treasury at a total cost of
$2,683,000. In the first nine months of
1996, the Company spent $5,667,000 to
purchase treasury stock.
The Board of Directors of the Company has
adopted a resolution authorizing the
repurchase by the Company of up to an
aggregate of 500,000 shares of its common
stock over a twelve-month period ending in
February 1998. As of August 31, 1997, the
Company had acquired 139,522 of these shares
at a total cost of $2,920,000.
The Company has a $150,000,000 unsecured
revolving credit facility that terminates on
July 30, 2002. At July 31, 1997, $94,000,000
was available under this facility. The
credit facility and internally generated
funds are expected to be adequate to finance
McWhorter's capital expenditures and other
operating requirements.
With respect to environmental liabilities,
management reviews each site, taking into
consideration the numerous factors that
influence the costs that will likely be
incurred. Reserves are adjusted as
additional information becomes available to
better estimate the total remediation costs
at individual sites. While uncertainties
exist with respect to the amounts and timing
of McWhorter's ultimate environmental
liabilities, management believes that such
liabilities, individually and in the
aggregate, will not have a material adverse
effect on the Company's financial condition
or results of operations.
<PAGE>
PART II. OTHER INFORMATION
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits:
10.28 $150,000,000 Credit Agreement
dated July 30, 1997 among McWhorter
Technologies, Inc., the Banks
listed therein and Wachovia Bank of
Georgia, N.A., as agent
11.1 Statement regarding
computation of net income per
share
27 Financial Data Schedules
(b) Form 8-K dated August 11, 1997
regarding acquisition of
Syntech S.p.A.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf
by the undersigned thereunto duly authorized.
McWhorter Technologies, Inc.
/s/ Louise M. Tonozzi-Frederick
Louise M. Tonozzi-Frederick
Vice President and Chief Financial Officer
Date: September 11,1997
<PAGE>
<TABLE>
EXHIBIT 11.1 - Statement regarding computation of net income per share
<CAPTION>
Quarter Ended Nine Months Ended
July 31, July 31,
1997 1996 1997 1996
<S> <C> <C> <C> <C>
Primary
Average common shares
outstanding 10,357,030 10,480,240 10,445,329 10,558,794
Less: Shares of restricted
stock awards issued,
not yet vested (101,847) (94,354) (98,828) (94,354)
Net effect of dilutive
stock options--
based on the treasury
stock method using average
market price 142,428 44,548 127,692 22,531
Total 10,397,611 10,430,434 10,474,193 10,486,971
Net income $4,832,000 $4,360,000 $11,222,000 $9,675,000
Net income per share $ .46 $ .42 $ 1.07 $ .92
Fully Diluted
Average common shares
outstanding 10,357,030 10,480,240 10,445,329 10,558,794
Net effect of dilutive
stock options--based on
the treasury stock
method using ending market
price, if higher than
average market price 166,770 44,548 165,535 22,159
Total 10,523,800 10,524,788 10,610,864 10,580,953
Net income $4,832,000 $4,360,000 $11,222,000 $9,675,000
Net income per share $ .46 $ .41 $ 1.06 $ .91
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from the
Statements of Income, Balance Sheets, and Statements of Cash Flows and is
qualified in its entirety by reference to such financial statements.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> OCT-31-1997
<PERIOD-START> NOV-01-1996
<PERIOD-END> JUL-31-1997
<CASH> 48,561<F1>
<SECURITIES> 0
<RECEIVABLES> 45,491
<ALLOWANCES> 0
<INVENTORY> 21,469
<CURRENT-ASSETS> 122,786
<PP&E> 113,630
<DEPRECIATION> 40,624
<TOTAL-ASSETS> 204,410
<CURRENT-LIABILITIES> 44,862
<BONDS> 4,372
0
0
<COMMON> 110
<OTHER-SE> 87,268
<TOTAL-LIABILITY-AND-EQUITY> 204,410
<SALES> 237,997
<TOTAL-REVENUES> 237,997
<CGS> 199,849
<TOTAL-COSTS> 199,849
<OTHER-EXPENSES> 20,248
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 1,027
<INCOME-PRETAX> 17,900
<INCOME-TAX> 6,678
<INCOME-CONTINUING> 11,222
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 11,222
<EPS-PRIMARY> 1.07
<EPS-DILUTED> 1.06
<FN>
<F1>The higher July 31, 1997 cash balance reflects borrowing to fund the August 1,
1997 acquisition of Syntech S.p.A., a privately-owned Italian-based liquid and
powder resins company.
</FN>
</TABLE>
$150,000,000.00
CREDIT AGREEMENT
dated as of
July 30, 1997
among
McWHORTER TECHNOLOGIES, INC.
The Banks Listed Herein
and
WACHOVIA BANK, N.A.,
as Agent
<PAGE>
TABLE OF CONTENTS
CREDIT AGREEMENT
Page
ARTICLE I
DEFINITIONS. . . . . . . . . . 1
SECTION 1.01. Definitions . . . . . . . . . . . . . 1
SECTION 1.02. Accounting Terms and Determinations . 19
SECTION 1.03. References. . . . . . . . . . . . . . 20
SECTION 1.04. Use of Defined Terms. . . . . . . . . 20
SECTION 1.05. Terminology . . . . . . . . . . . . . 20
ARTICLE II
THE CREDITS. . . . . . . . . . 20
SECTION 2.01. Commitments to Lend . . . . . . . . . 20
SECTION 2.02. Method of Borrowing . . . . . . . . . 21
SECTION 2.03. Money Market Loans. . . . . . . . . . 24
SECTION 2.04. Finnish Markka Loans. . . . . . . . . 28
SECTION 2.05. Maturity of Loans . . . . . . . . . . 29
SECTION 2.06. Interest Rates. . . . . . . . . . . . 30
SECTION 2.07. Fees; Calculations. . . . . . . . . . 31
SECTION 2.08. Optional Termination or
Reduction of Commitments. . . . . . . 32
SECTION 2.09. Termination of Commitments. . . . . . 32
SECTION 2.10. Optional Prepayments. . . . . . . . . 32
SECTION 2.11. Mandatory Prepayments;
Application of Payments . . . . . . . 33
SECTION 2.12. General Provisions as to
Payments. . . . . . . . . . . . . . . 33
<PAGE>
SECTION 2.13. Computation of Interest and
Fees. . . . . . . . . . . . . . . . . 35
SECTION 2.14. Notes . . . . . . . . . . . . . . . . 36
ARTICLE III
CONDITIONS TO BORROWINGS. . . . . . . 37
SECTION 3.01. Conditions to First Borrowing . . . . 37
SECTION 3.02. Conditions to All Borrowings. . . . . 38
ARTICLE IV
REPRESENTATIONS AND WARRANTIES . . . . . 39
SECTION 4.01. Corporate Existence and Power . . . . 39
SECTION 4.02. Corporate and Governmental
Authorization; No
Contravention . . . . . . . . . . . . 39
SECTION 4.03. Binding Effect. . . . . . . . . . . . 40
SECTION 4.04. Financial Information . . . . . . . . 40
SECTION 4.05. No Litigation . . . . . . . . . . . . 40
SECTION 4.06. Compliance with ERISA . . . . . . . . 40
SECTION 4.07. Compliance with Laws; Payment
of Taxes. . . . . . . . . . . . . . . 41
SECTION 4.08. Subsidiaries. . . . . . . . . . . . . 41
SECTION 4.09. Investment Company Act. . . . . . . . 41
SECTION 4.10. Public Utility Holding Company
Act . . . . . . . . . . . . . . . . . 41
SECTION 4.11. Ownership of Property; Liens. . . . . 42
SECTION 4.12. No Default. . . . . . . . . . . . . . 42
SECTION 4.13. Full Disclosure . . . . . . . . . . . 42
SECTION 4.14. Environmental Matters . . . . . . . . 42
SECTION 4.15. Capital Stock . . . . . . . . . . . . 43
SECTION 4.16. Margin Stock. . . . . . . . . . . . . 43
SECTION 4.17. Insolvency. . . . . . . . . . . . . . 43
<PAGE>
SECTION 4.18. Consent Order . . . . . . . . . . . . 43
ARTICLE V
COVENANTS . . . . . . . . . . 44
SECTION 5.01. Information . . . . . . . . . . . . . 44
SECTION 5.02. Inspection of Property, Books
and Records . . . . . . . . . . . . . 46
SECTION 5.03. Ratio of Consolidated Funded
Debt to EBITDA. . . . . . . . . . . . 46
SECTION 5.04. [RESERVED]. . . . . . . . . . . . . . 46
SECTION 5.06. Fixed Charges Coverage. . . . . . . . 46
SECTION 5.07. Loans or Advances . . . . . . . . . . 47
SECTION 5.08. Investments . . . . . . . . . . . . . 47
SECTION 5.09. Negative Pledge . . . . . . . . . . . 48
SECTION 5.10. Maintenance of Existence. . . . . . . 49
SECTION 5.11. Subsidiary Dissolution. . . . . . . . 49
SECTION 5.12. Consolidations, Mergers and
Sales of Assets . . . . . . . . . . . 49
SECTION 5.13. Use of Proceeds . . . . . . . . . . . 50
SECTION 5.14. Compliance with Laws; Payment
of Taxes. . . . . . . . . . . . . . . 50
SECTION 5.15. Insurance . . . . . . . . . . . . . . 50
SECTION 5.16. Change in Fiscal Year . . . . . . . . 51
SECTION 5.17. Maintenance of Property . . . . . . . 51
SECTION 5.18. Environmental Notices . . . . . . . . 51
SECTION 5.19. Environmental Matters . . . . . . . . 51
SECTION 5.20. Environmental Release . . . . . . . . 51
SECTION 5.21. [RESERVED]. . . . . . . . . . . . . . 51
SECTION 5.22. Transactions with Affiliates. . . . . 51
SECTION 5.23. Compliance with Consent Order . . . . 52
<PAGE>
SECTION 5.24. Domestic Subsidiaries to
Become Guarantors . . . . . . . . . . 52
SECTION 5.25. Capital Stock and Promissory
Notes of Foreign Subsidiaries
to Be Pledged . . . . . . . . . . . . 52
ARTICLE VI
DEFAULTS. . . . . . . . . . . 53
SECTION 6.01. Events of Default . . . . . . . . . . 53
SECTION 6.02. Notice of Default . . . . . . . . . . 57
ARTICLE VII
THE AGENT . . . . . . . . . . 57
SECTION 7.01. Appointment; Powers and
Immunities. . . . . . . . . . . . . . 57
SECTION 7.02. Reliance by Agent . . . . . . . . . . 58
SECTION 7.03. Defaults. . . . . . . . . . . . . . . 58
SECTION 7.04. Rights of Agent as a Bank . . . . . . 58
SECTION 7.05. Indemnification . . . . . . . . . . . 59
SECTION 7.06. CONSEQUENTIAL DAMAGES . . . . . . . . 59
SECTION 7.07. Payee of Note Treated as
Owner . . . . . . . . . . . . . . . . 59
SECTION 7.08. Nonreliance on Agent and Other
Banks . . . . . . . . . . . . . . . . 60
SECTION 7.09. Failure to Act. . . . . . . . . . . . 60
SECTION 7.10. Resignation or Removal of
Agent . . . . . . . . . . . . . . . . 60
ARTICLE VIII
CHANGE IN CIRCUMSTANCES; COMPENSATION . . . 61
SECTION 8.01. Basis for Determining Interest
Rate Inadequate or Unfair . . . . . . 61
SECTION 8.02. Illegality. . . . . . . . . . . . . . 61
SECTION 8.03. Increased Cost and Reduced
Return. . . . . . . . . . . . . . . . 62
SECTION 8.04. Base Rate Loans Substituted
for Fixed Rate Loans. . . . . . . . . 64
<PAGE>
SECTION 8.05. Compensation. . . . . . . . . . . . . 64
SECTION 8.06. RESERVED. . . . . . . . . . . . . . . 65
SECTION 8.07. Failure to Pay in Foreign
Currency. . . . . . . . . . . . . . . 65
SECTION 8.08. Judgment Currency . . . . . . . . . . 66
ARTICLE IX
MISCELLANEOUS . . . . . . . . . 66
SECTION 9.01. Notices . . . . . . . . . . . . . . . 66
SECTION 9.02. No Waivers. . . . . . . . . . . . . . 67
SECTION 9.03. Expenses; Documentary Taxes . . . . . 67
SECTION 9.04. Indemnification . . . . . . . . . . . 67
SECTION 9.05 Setoff; Sharing of Setoffs. . . . . . 68
SECTION 9.06. Amendments and Waivers. . . . . . . . 69
SECTION 9.07. No Margin Stock Collateral. . . . . . 70
SECTION 9.08. Successors and Assigns. . . . . . . . 70
SECTION 9.09. Confidentiality . . . . . . . . . . . 72
SECTION 9.10. Representation by Banks . . . . . . . 73
SECTION 9.11. Obligations Several . . . . . . . . . 73
SECTION 9.12. Georgia Law . . . . . . . . . . . . . 73
SECTION 9.13. Severability. . . . . . . . . . . . . 74
SECTION 9.14. Interest. . . . . . . . . . . . . . . 74
SECTION 9.15. Interpretation. . . . . . . . . . . . 74
SECTION 9.16. Waiver of Jury Trial; Consent
to Jurisdiction . . . . . . . . . . . 74
SECTION 9.17. Counterparts. . . . . . . . . . . . . 74
<PAGE>
EXHIBIT A-1 Form of Syndicated Dollar Note
EXHIBIT A-2 Form of Money Market Loan Note
EXHIBIT A-3 Form of Foreign Currency Note
EXHIBIT A-4 Form of Finnish Markka Loan Note
EXHIBIT B Form of Opinion of Counsel for the Borrower
EXHIBIT C Form of Opinion of Special Counsel for the Agent
EXHIBIT D Form of Assignment and Acceptance
EXHIBIT E Form of Notice of Borrowing
EXHIBIT F Form of Compliance Certificate
EXHIBIT G Form of Closing Certificate
EXHIBIT H Form of Secretary's Certificate for Borrower
EXHIBIT I Form of Limited Guaranty
EXHIBIT J Form of Pledge Agreement
EXHIBIT K Form of Money Market Quote Request
EXHIBIT L Form of Money Market Quote
Schedule 1.01(a) Guaranteed Debt As Of The Closing Date, Etc.
Schedule 4.14 Environmental Matters
<PAGE>
CREDIT AGREEMENT
CREDIT AGREEMENT dated as of July 30, 1997
among McWHORTER TECHNOLOGIES, INC., the BANKS listed
on the signature pages hereof and WACHOVIA BANK, N.A.,
as Agent.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. The terms as
defined in this Section 1.01 shall, for all purposes
of this Agreement and any amendment hereto (except as
herein otherwise expressly provided or unless the
context otherwise requires), have the meanings set
forth herein:
"Acquisition" means (i) the acquisition by
the Borrower, and the immediately following
contribution by the Borrower to McWhorter Holdings
Ltd., a wholly-owned subsidiary of the Borrower
organized under the laws of the United Kingdom, of
Synthetic Resin Technologies S.A., a corporation
organized under the laws of Luxembourg and (ii) the
acquisition by the Borrower from Syntech S.p.A. of all
of the issued and outstanding shares of common stock
of Syntech, Inc. by the Borrower pursuant to the
Acquisition Agreements.
"Acquisition Agreements" mean (i) the
Stock Purchase Agreement to be dated as of July 31,
1997, by and between the Borrower, as the buyer and
Antonio Napoli & C. S.a.p.a. and Gestin S.r.l., as the
sellers, pursuant to which the Borrower will acquire
all issued and outstanding shares of capital stock of
Synthetic Resin Technologies S.A. (to be immediately
followed by a contribution of such stock by the
Borrower to McWhorter Holdings Ltd.) and (ii) the
Warrant Purchase Agreement to be dated as of July 31,
1997, by and between the Borrower, as the buyer and
Cable Beach Holdings Ltd., as the seller, pursuant to
which the Borrower will acquire certain warrants to
acquire the stock of Synthetic Resin Technologies S.A.
"Adjusted IBOR Rate" means, with respect
to each Interest Period for a Foreign Currency Loan or
Finnish Markka Loan, the sum of (i) the rate obtained
by dividing (A) IBOR for such Interest Period by (B) a
percentage equal to 1 minus the then stated maximum
rate (stated as a decimal) of all reserve requirements
(including, without limitation, any marginal,
emergency, supplemental, special or other reserves)
applicable to
<PAGE>
any member bank of the Federal Reserve
System as defined in Regulation D (or against any
successor category of liabilities as defined in
Regulation D), plus (ii) if the relevant Foreign
Currency Loan is in British pounds sterling, a
percentage sufficient to compensate the Banks for the
cost of complying with any reserves, liquidity and/or
special deposit requirements imposed by the Bank of
England directly or indirectly affecting the
maintenance or funding of such Foreign Currency Loan.
"Adjusted London Interbank Offered Rate"
applicable to any Interest Period means a rate per
annum equal to the quotient obtained (rounded upwards,
if necessary, to the next higher 1/16th of 1%) by
dividing (i) the applicable London Interbank Offered
Rate for such Interest Period by (ii) 1.00 minus the
Euro-Dollar Reserve Percentage. The Adjusted London
Interbank Offered Rate shall be adjusted automatically
on and as of the effective date of any change in the
Euro-Dollar Reserve Percentage.
"Affiliate" of any Person means (i) any
Person that directly, or indirectly through one or
more intermediaries, controls such Person (a
"Controlling Person"), (ii) any Person which is
controlled by or is under common control with a
Controlling Person, or (iii) any Person (other than a
Subsidiary) of which such Person owns, directly or
indirectly, 20% or more of the common stock or
equivalent equity interests. As used herein, the term
"control" means possession, directly or indirectly, of
the power to direct or cause the direction of the
management or policies of a Person, whether through
the ownership of voting securities, by contract or
otherwise.
"Agent" means Wachovia in its capacity as
agent for the Banks hereunder, and its successors and
permitted assigns in such capacity.
"Agent's Letter Agreement" means that
certain letter agreement, dated as of June 17, 1997
between the Borrower and the Agent relating to the
structure of the Loans, and certain fees from time to
time payable by the Borrower to the Agent, together
with all amendments and modifications thereto.
"Agreement" means this Credit Agreement,
together with all amendments and supplements hereto.
"Applicable Margin" means (i) with respect
to Base Rate Loans, 0%; (ii) with respect to Euro-
Dollar Loans, Finnish Markka Loans and Foreign
Currency Loans, (t) if the Borrower's ratio of
Consolidated Funded Debt to EBITDA is less than 1.0 to
1.0, 0.15%, (u) if the Borrower's ratio of
Consolidated Funded Debt to EBITDA is greater than or
equal to 1.0 to 1.0 but less than 1.50
<PAGE>
to 1.0, 0.16%, (v) if the Borrower's ratio of Consolidated Funded
Debt to EBITDA is greater than or equal to 1.50 to 1.0
but less than 2.0 to 1.0, 0.215%, (w) if the
Borrower's ratio of Consolidated Funded Debt to EBITDA
is greater than or equal to 2.0 to 1.0 but less than
2.5 to 1.0, 0.25%, (x) if the Borrower's ratio of
Consolidated Funded Debt to EBITDA is greater than or
equal to 2.5 to 1.0 but less than 3.0 to 1.0, 0.325%,
(y) if the Borrower's ratio of Consolidated Funded
Debt to EBITDA is greater than or equal to 3.0 to 1.0
but less than 3.5 to 1.0, 0.45%, and (z) if the
Borrower's ratio of Consolidated Funded Debt to EBITDA
is equal to or greater than 3.50 to 1.0, 0.575%. The
determination of the Applicable Margin from time to
time shall be made in accordance with Section 2.07(b).
"Assignee" has the meaning set forth in
Section 9.08(c).
"Assignment and Acceptance" means an
Assignment and Acceptance executed in accordance with
Section 9.08(c) in the form attached hereto as Exhibit
D.
"Audited Statements" has the meaning set
forth in Section 2.07(b).
"Authority" has the meaning set forth in
Section 8.02.
"Bank" means each bank listed on the
signature pages hereof as having a Commitment, and its
successors and assigns.
"Base Rate" means for any Base Rate Loan
for any day, the rate per annum equal to the higher as
of such day of (i) the Prime Rate, and (ii) one-half
of one percent above the Federal Funds Rate. For
purposes of determining the Base Rate for any day,
changes in the Prime Rate shall be effective on the
date of each such change.
"Base Rate Loan" means a Loan to be made
as a Base Rate Loan pursuant to the applicable Notice
of Borrowing, Section 2.02(f), or Article VIII, as
applicable.
"Borrower" means McWhorter Technologies,
Inc., a Delaware corporation, and its successors and
its permitted assigns.
"Borrowing" means a borrowing, pursuant to
Article II hereof, consisting of (i) Syndicated Loans
made to the Borrower at the same time by the Banks,
(ii) Money Market Loans made by any Bank, and (iii)
Finnish Markka Loans made by Merita. A Borrowing is a
"Base Rate Borrowing" if such Loans are Base Rate
Loans, a "Euro-Dollar Borrowing" if such Loans are Euro-Dollar
<PAGE>
Loans, a "Money Market Borrowing" if such
Loans are Money Market Loans, a "Finnish Markka
Borrowing" if such Loans are Finnish Markka Loans, or
a "Foreign Currency Borrowing" if such loans are
Foreign Currency Loans. A Borrowing is a "Syndicated
Borrowing" if it is made pursuant to Section 2.01.
"Capital Stock" means any capital stock
(other than Redeemable Preferred Stock) of the
Borrower or any Consolidated Subsidiary (to the extent
issued to a Person other than the Borrower), whether
common or preferred.
"CERCLA" means the Comprehensive
Environmental Response Compensation and Liability Act,
42 U.S.C. Section 9601 et. seq. and its implementing
regulations and amendments.
"CERCLIS" means the Comprehensive
Environmental Response Compensation and Liability
Inventory System established pursuant to CERCLA.
"Change of Law" shall have the meaning set
forth in Section 8.02.
"Closing Certificate" has the meaning set
forth in Section 3.01(e).
"Closing Date" means July 30, 1997.
"Code" means the Internal Revenue Code of
1986, as amended, or any successor Federal tax code.
"Commitment" means, with respect to each
Bank, the amount set forth opposite the name of such
Bank on the signature pages hereof, as such amount may
be reduced from time to time pursuant to Sections 2.08
and 2.09.
"Compliance Certificate" has the meaning
set forth in Section 5.01(c).
"Consent Order" means the Consent Order
dated September 30, 1993 entered into between Valspar,
the Borrower and the Federal Trade Commission.
"Consolidated Funded Debt" means at any
date the Debt of the Borrower and its Consolidated
Subsidiaries, determined on a consolidated basis as of
such date, excluding therefrom, however, Guaranteed
Debt in existence on the Closing Date described on
Schedule 1.01(a) attached hereto.
"Consolidated Interest Expense" for any
period means interest, whether expensed or
capitalized, in respect of Debt of
<PAGE>
the Borrower or any of its Consolidated Subsidiaries outstanding during
such period.
"Consolidated Net Income" means, for any
period, the Net Income of the Borrower and its
Consolidated Subsidiaries determined on a consolidated
basis, but excluding (i) extraordinary items (which
shall include non-recurring items) and (ii) any equity
interests of the Borrower or any Subsidiary in the
unremitted earnings of any Person that is not a
Subsidiary.
"Consolidated Subsidiary" means at any
date any Subsidiary or other entity the accounts of
which, in accordance with GAAP, would be consolidated
with those of the Borrower in its consolidated
financial statements as of such date.
"Consolidated Total Assets" means, at any
time, the total assets of the Borrower and its
Consolidated Subsidiaries, determined on a
consolidated basis, as set forth or reflected on the
most recent consolidated balance sheet of the Borrower
and its Consolidated Subsidiaries, prepared in
accordance with GAAP.
"Controlled Group" means all members of a
controlled group of corporations and all trades or
businesses (whether or not incorporated) under common
control which, together with the Borrower, are treated
as a single employer under Section 414 of the Code.
"Debt" of any Person means at any date,
without duplication, (i) all obligations of such
Person for borrowed money, (ii) all obligations of
such Person evidenced by bonds, debentures, notes or
other similar instruments, (iii) all obligations of
such Person to pay the deferred purchase price of
property or services (except trade accounts payable
arising in the ordinary course of business), but only
if such obligations are, in accordance with GAAP,
recorded on the Borrower's financial books as long
term debt (iv) all obligations of such Person as
lessee under capital leases, (v) all obligations of
such Person to reimburse any bank or other Person in
respect of amounts payable under a banker's
acceptance, (vi) all obligations to redeem any
Redeemable Preferred Stock of such Person (in the
event such Person is a corporation) but limited to the
amounts (A) in any sinking fund therefor arising prior
to the Termination Date, and (B) which are subject to
redemption prior to the Termination Date, (vii) all
outstanding obligations of such Person to reimburse
any bank or other Person in respect of amounts paid
under a letter of credit or similar instrument, (viii)
all Debt of others secured by a Lien on any asset of
such Person, whether or not such Debt is assumed by
such Person, and (ix) all outstanding Debt of others
Guaranteed by such Person.
<PAGE>
"Default" means any condition or event
which constitutes an Event of Default or which with
the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"Default Rate" means, with respect to any
Loan, on any day, the sum of 2% plus the then highest
interest rate (including the Applicable Margin) which
may be applicable to any Loans hereunder (irrespective
of whether any such type of Loans are actually
outstanding hereunder).
"Dividends" means for any period the sum
of all dividends paid or declared during such period
in respect of any Capital Stock and Redeemable
Preferred Stock (other than dividends paid or payable
in the form of additional Capital Stock).
"Dollars" or "$" means dollars in lawful
currency of the United States of America.
"Dollar Equivalent" means the Dollar
equivalent of the amount of a Foreign Currency Loan,
determined by the Agent on the basis of its spot rate
for the purchase of (i) the appropriate Foreign
Currency with Dollars, or (ii) Finnish markkas with
Dollars.
"Domestic Borrowing" is a Borrowing which
is a Domestic Loan.
"Domestic Business Day" means any day
except a Saturday, Sunday or other day on which
commercial banks in Georgia are authorized by law to
close.
"Domestic Loan" means a Base Rate Loan,
Syndicated Dollar Loan or Money Market Loan, and
"Domestic Loans" means Base Rate Loans, Syndicated
Dollar Loans or Money Market Loans, or any or all of
them, as the context shall require.
"Domestic Subsidiary" means a Subsidiary
which is not a Foreign Subsidiary.
"EBITDA" means the sum of the Borrower's
(i) Consolidated Net Income, plus (ii) Consolidated
Interest Expense and taxes, plus (iii) consolidated
depreciation and amortization, calculated at the end
of each Fiscal Quarter based on the then ending
current Fiscal Quarter and the immediately preceding
three Fiscal Quarters.
<PAGE>
"Eligible First Tier Foreign Subsidiary"
means any First Tier Foreign Subsidiary with respect
to which the requirements of Section 5.25 shall be
timely satisfied.
"Eligible Foreign Subsidiary" means any
Foreign Subsidiary with respect to which the
requirements of Section 5.25 shall be timely
satisfied.
"Environmental Authority" means any
foreign, federal, state, local or regional government
that exercises any form of jurisdiction or authority
under any Environmental Requirement.
"Environmental Authorizations" means all
licenses, permits, orders, approvals, notices,
registrations or other legal prerequisites for
conducting the business of the Borrower or any
Subsidiary required by any Environmental Requirement.
"Environmental Judgments and Orders" means
all judgments, decrees or orders arising from or in
any way associated with any Environmental
Requirements, whether or not entered upon consent, or
written agreements with an Environmental Authority or
other entity arising from or in any way associated
with any Environmental Requirement, whether or not
incorporated in a judgment, decree or order.
"Environmental Liabilities" means any
liabilities, whether accrued, contingent or otherwise,
arising from and in any way associated with CERCLA or
any comparable state law or any Environmental
Requirements.
"Environmental Notices" means written
notice from any Environmental Authority or by any
other Person, of alleged material noncompliance with
or material liability under any Environmental
Requirement, including without limitation any
complaints, citations, demands or requests from any
Environmental Authority or from any other Person or
entity for correction of any violation of any
Environmental Requirement or any investigations
concerning any violation of any Environmental
Requirement.
"Environmental Proceedings" means any
judicial or administrative proceedings to which the
Borrower or any Subsidiary is a party or to which its
property is subject, arising from or in any way
associated with any Environmental Requirement.
"Environmental Releases" means "releases"
as defined in CERCLA or under any applicable state or
local environmental law or regulation.
<PAGE>
"Environmental Requirements" means any
legal requirement relating to health, safety or the
environment and applicable to the Borrower, any
Subsidiary or the Properties, including but not
limited to any such requirement under CERCLA or
similar state legislation and all federal, state and
local laws, ordinances, regulations, orders, writs,
decrees and common law.
"ERISA" means the Employee Retirement
Income Security Act of 1974, as amended from time to
time, or any successor law. Any reference to any
provision of ERISA shall also be deemed to be a
reference to any successor provision or provisions
thereof.
"Euro-Dollar Business Day" means any
Domestic Business Day, excluding one on which dealings
in Dollar deposits are not carried out in the London
interbank market.
"Euro-Dollar Loan" means a Loan to be made
as a Euro-Dollar Loan pursuant to the applicable
Notice of Borrowing.
"Euro-Dollar Reserve Percentage" means for
any day that percentage (expressed as a decimal) which
is in effect on such day, as prescribed by the Board
of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve
requirement for a member bank of the Federal Reserve
System in respect of "Eurocurrency liabilities" (or in
respect of any other category of liabilities which
includes deposits by reference to which the interest
rate on Euro-Dollar Loans is determined or any
category of extensions of credit or other assets which
includes loans by a non-United States office of any
Bank to United States residents).
"Event of Default" has the meaning set
forth in Section 6.01.
"Facility Fee" has the meaning set forth
in Section 2.07(a).
"Federal Funds Rate" means, for any day,
the rate per annum (rounded upward, if necessary, to
the next higher 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds
transactions with members of the Federal Reserve
System arranged by Federal funds brokers on such day,
as published by the Federal Reserve Bank of New York
on the Domestic Business Day next succeeding such day,
provided that (i) if the day for which such rate is to
be determined is not a Domestic Business Day, the
Federal Funds Rate for such day shall be such rate on
such transactions on the next preceding Domestic
Business Day as so published on the next succeeding
Domestic Business Day, and (ii) if such rate is not so
published for any day, the Federal Funds Rate for such
day shall be the average rate charged
<PAGE>
to the Agent on such day on such transactions, as determined by the
Agent.
"Finnish Markka Loan" means a Loan made by
Merita pursuant to Section 2.04, in Finnish markkas.
"Finnish Markka Loan Note" means the
promissory note of the Borrower, payable to the order
of Merita, substantially in the form of Exhibit A-4,
evidencing the obligation of the Borrower to repay the
Finnish Markka Loans, together with all amendments,
consolidations, modifications, renewals, and
supplements thereto.
"First Tier Foreign Subsidiary" means a
Foreign Subsidiary owned by the Borrower or any
Domestic Subsidiary.
"Fiscal Quarter" means any fiscal quarter
of the Borrower.
"Fiscal Year" means any fiscal year of the
Borrower.
"Fixed Rate Borrowing" means a Euro-Dollar
Borrowing, a Money Market Borrowing, a Finnish Markka
Borrowing, a Foreign Currency Borrowing, or any or all
of them, as the context shall require.
"Fixed Rate Loans" means Euro-Dollar
Loans, Money Market Loans, Finnish Markka Loans,
Foreign Currency Loans or any or all of them, as the
context shall require.
"Foreign Currencies" means, individually
and collectively, as the context shall require: (i)
British pounds sterling, French francs, Italian lira,
Canadian dollars, Dutch guilders, Federal Republic of
Germany deutsche marks, Japanese yen, Swedish kronas,
Swiss francs; or (ii) at the option of all of the
Banks with respect to a Foreign Currency Loan, any
other currency which is freely transferable and
convertible into Dollars; provided, however, that no
such other currency under this clause (ii) shall be
included as a Foreign Currency hereunder, or included
in a Notice of Borrowing, unless (x) the Borrower has
first submitted a request to the Agent and the Banks
that it be so included, and (y) the Agent and all of
the Banks, in their sole discretion, have agreed to
such request.
"Foreign Currency Business Day" means any
Domestic Business Day, excluding one on which trading
is not carried on by and between banks in deposits of
the applicable Foreign Currency or Finnish markkas in
the applicable interbank market for such Foreign
Currency or Finnish markkas.
<PAGE>
"Foreign Currency Loans" means Loans made
in Foreign Currency by all of the Banks at the same
time pursuant to Section 2.01.
"Foreign Currency Notes" means promissory
notes of the Borrower, substantially in the form of
Exhibit A-3, evidencing the obligation of the Borrower
to repay the Foreign Currency Loans, together with all
amendments, consolidations, modifications, renewals,
and supplements thereto.
"Foreign Subsidiary" means a Subsidiary
(i) located outside of the United States and (ii)
which, with respect to the Borrower, would be a
"controlled foreign corporation" deemed to hold
"United States property" under Section 956 of the Code
solely as a result of becoming a Guarantor by
delivering a Guaranty.
"GAAP" means generally accepted accounting
principles applied on a basis consistent with those
which, in accordance with Section 1.02, are to be used
in making the calculations for purposes of determining
compliance with the terms of this Agreement.
"Guarantee" by any Person means any
obligation, contingent or otherwise, of such Person
directly or indirectly guaranteeing any Debt or other
obligation of any other Person and, without limiting
the generality of the foregoing, any obligation,
direct or indirect, contingent or otherwise, of such
Person (i) to secure, purchase or pay (or advance or
supply funds for the purchase or payment of) such Debt
or other obligation (whether arising by virtue of
partnership arrangements, by agreement to keep-well,
to purchase assets, goods, securities or services, to
provide collateral security, to take-or-pay, or to
maintain financial statement conditions or otherwise)
or (ii) entered into for the purpose of assuring in
any other manner the obligee of such Debt or other
obligation of the payment thereof or to protect such
obligee against loss in respect thereof (in whole or
in part), provided that the term Guarantee shall not
include endorsements for collection or deposit in the
ordinary course of business. The term "Guarantee"
used as a verb has a corresponding meaning.
"Guarantor" means a Subsidiary which (i)
has executed and delivered to the Agent a Limited
Guaranty, (ii) has delivered to the Agent the types of
instruments and documents referred to in paragraph (f)
of Section 3.01 with respect to such Limited Guaranty,
and (iii) has delivered to the Agent an opinion of
counsel to such Subsidiary substantially in the form
of Exhibit B (excluding paragraphs 5, 6 and 7 thereof)
with respect to such Subsidiary and such Limited
Guaranty.
<PAGE>
"Hazardous Materials" includes, without
limitation, (a) solid waste, as defined in the
Resource Conservation and Recovery Act of 1980, 42
U.S.C. Section 6901 et seq. and its implementing regulations
and amendments, or in any applicable state law or
regulation, (b) "hazardous substance", "pollutant", or
"contaminant" as defined in CERCLA, or in any
applicable state law or regulation, (c) gasoline, or
any other petroleum product or by-product, including,
crude oil or any fraction thereof, or (d) pesticides,
as defined in the Federal Insecticide, Fungicide, and
Rodenticide Act of 1975, or in any applicable state or
local law or regulation, as each such Act, statute or
regulation may be amended from time to time.
"IBOR" means, for any Interest Period,
with respect to Foreign Currency Loans and Finnish
Markka Loans, the offered rate for deposits in the
applicable Foreign Currency or Finnish markkas,
respectively, for a period comparable to the Interest
Period and, with respect to any Foreign Currency Loan,
in an amount comparable to the amount of such Foreign
Currency Loan, set forth as the British Bankers'
Association interest settlement rate as the same
appears on Reuters as of 11:00 A.M. (London, England
time), with respect to any Finnish Markka Loan, in an
amount comparable to the amount of such Finnish Markka
Loan appearing on the Reuters SPFB Screen as of 12:00
P.M. (Helsinki, Finland time), both of the foregoing
as on the day that is two Business Days prior to the
first day of the Interest Period. If the foregoing
rates are unavailable from Reuters for any reason,
then such rates shall be determined by the Agent from
any other interest rate reporting service of
recognized standing designated in writing by the Agent
to the Borrower.
"Interest Period" means:
(1) with respect to each Euro-Dollar Borrowing and
Foreign Currency Borrowing, the period commencing on
the date of such Borrowing and ending on the
numerically corresponding day in the first, second,
third or sixth month thereafter, as the Borrower may
elect in the applicable Notice of Borrowing; provided
that:
(a) any Interest Period which would
otherwise end on a day which is not a
Euro-Dollar Business Day or Foreign Currency
Business Day, as the case may be, shall be
extended to the next succeeding Euro-Dollar
Business Day or Foreign Currency Business Day,
as the case may be, unless such Euro-Dollar
Business Day or Foreign Currency Business Day,
as the case may be, falls in another calendar
month, in which case such Interest Period shall,
subject to paragraph (c) below, end on the next
preceding Euro-Dollar Business Day or Foreign
Currency Business Day, as the case may be;
<PAGE>
(b) any Interest Period which begins on
the last Euro-Dollar Business Day or Foreign
Currency Business Day, as the case may be, of a
calendar month (or on a day for which there is
no numerically corresponding day in the
appropriate subsequent calendar month) shall,
subject to paragraph (c) below, end on the last
Euro-Dollar Business Day or Foreign Currency
Business Day, as the case may be, of the
appropriate subsequent calendar month; and
(c) no Interest Period may be selected
which would end after the Termination Date.
(2) with respect to each Base Rate Borrowing, the
period commencing on the date of such Borrowing and
ending 30 days thereafter; provided that:
(a) any Interest Period (other than an
Interest Period determined pursuant to paragraph
(b) below) which would otherwise end on a day
which is not a Domestic Business Day shall be
extended to the next succeeding Domestic
Business Day; and
(b) any Interest Period which begins
before the Termination Date and would otherwise
end after the Termination Date shall end on the
Termination Date.
(3) with respect to each Money Market Borrowing, the
period commencing on the date of such Borrowing and
ending on the Stated Maturity Date or such other date
or dates as may be specified in the applicable Money
Market Quote; provided that:
(a) any Interest Period (subject to clause
(b) below) which would otherwise end on a day
which is not a Domestic Business Day shall be
extended to the next succeeding Domestic
Business Day; and
(b) no Interest Period may be selected
which begins before the Termination Date and
would otherwise end after the Termination Date.
(4) with respect to each Finnish Markka Borrowing, the
period commencing on the date of such Borrowing and
ending on the numerically corresponding day in the
first, second, third or sixth month thereafter, as the
Borrower may elect in the applicable Notice of
Borrowing; provided that:
(a) any Interest Period which would
otherwise end on a day which is not a Foreign
Currency Business Day shall be extended to the
next succeeding Foreign Currency Business Day,
unless such Foreign Currency Business Day falls in
<PAGE>
another calendar month, in which case such
Interest Period shall, subject to paragraph (c)
below, end on the next preceding Foreign
Currency Business Day;
(b) any Interest Period which begins on
the last Foreign Currency Business Day of a
calendar month (or on a day for which there is
no numerically corresponding day in the
appropriate subsequent calendar month) shall,
subject to paragraph (c) below, end on the last
Foreign Currency Business Day of the appropriate
subsequent calendar month; and
(c) no Interest Period may be selected
which would end after the Termination Date.
"Investment" means any investment in any
Person, whether by means of purchase or acquisition of
obligations or securities of such Person, capital
contribution to such Person, loan or advance to such
Person, making of a time deposit with such Person,
Guarantee or assumption of any obligation of such
Person or otherwise.
"Joint Venture" means a person (i) in
which the Borrower owns 20% or more of the
shareholders' equity or partnership or other ownership
interests, but which is not a Subsidiary, and (ii)
which is formed by the Borrower and one or more other
Persons to carry out a single business enterprise for
profit, for which they combine their property, money,
effects, skill and knowledge.
"Lending Office" means, as to each Bank,
its office located at its address set forth on the
signature pages hereof (or identified on the signature
pages hereof as its Lending Office or such other
office as such Bank may hereafter designate as its
Lending Office) by notice to the Borrower and the
Agent.
"Lien" means, with respect to any asset,
any mortgage, deed to secure debt, deed of trust,
lien, pledge, charge, security interest, security
title, preferential arrangement which has the
practical effect of constituting a security interest
or encumbrance, or encumbrance or servitude of any
kind in respect of such asset to secure or assure
payment of a Debt or a Guarantee, whether by
consensual agreement or by operation of statute or
other law, or by any agreement, contingent or
otherwise, to provide any of the foregoing. For the
purposes of this Agreement, the Borrower or any
Subsidiary shall be deemed to own subject to a Lien
any asset which it has acquired or holds subject to
the interest of a vendor or lessor under any
conditional sale agreement, capital lease or other
title retention agreement relating to such asset.
<PAGE>
"Limited Guaranty" means a Limited
Guaranty substantially in the form of Exhibit I,
executed by a Guarantor in favor of the Agent, for the
benefit of the Banks, unconditionally and jointly and
severally (with any other Guarantors) Guaranteeing the
payment of all obligations of the Borrower hereunder,
under the Notes and under the other Loan Documents,
but with a limitation of liability as to each
Guarantor as set forth in Section 3 thereof.
"Loan" means a Domestic Loan, a
Euro-Dollar Loan or a Foreign Currency Loan, Finnish
Markka Loan, or Money Market Loan, and "Loans" means
Domestic Loans, Euro-Dollar Loans, Foreign Currency
Loans, Finnish Markka Loans, or Money Market Loans, or
any or all of them, as the context shall require.
"Loan Documents" means this Agreement, the
Notes, each Limited Guaranty, each Pledge Agreement,
any other document evidencing, relating to or securing
the Loans, and any other document or instrument
delivered from time to time in connection with this
Agreement, the Notes or the Loans, as such documents
and instruments may be amended or supplemented from
time to time.
"London Interbank Offered Rate" applicable
to any Euro-Dollar Loan means for the Interest Period
of such Loan, the rate per annum determined on the
basis of the offered rate for deposits in Dollars of
amounts equal or comparable to the principal amount of
such Loan offered for a term comparable to such
Interest Period, which rates appear on Dow Jones
Markets, Inc. Page 3750 (formerly known as Dow Jones
Telerate Service Page 3750) as of 11:00 A.M. (London,
England time), 2 Euro-Dollar Business Days prior to
the first day of such Interest Period, provided that
(i) if more than one such offered rate appears on the
Dow Jones Markets Inc. Page, the "London Interbank
Offered Rate" will be the arithmetic average (rounded
upward, if necessary, to the next higher 1/16th of 1%)
of such offered rates; (ii) if no such offered rates
appear on such page, the "London Interbank Offered
Rate" for such Interest Period will be the arithmetic
average (rounded upward, if necessary, to the next
higher 1/16th of 1%) of rates quoted by not less than
two major banks in New York City, selected by the
Agent, at approximately 10:00 A.M., New York City
time, 2 Euro-Dollar Business Days prior to the first
day of such Interest Period, for deposits in Dollars
offered to leading European banks for a period
comparable to such Interest Period in an amount
comparable to the principal amount of such Loan.
"Margin Stock" means "margin stock" as
defined in Regulations G, T, U or X.
<PAGE>
"Material Adverse Effect" means, with
respect to any event, act, condition or occurrence of
whatever nature (including any adverse determination
in any litigation, arbitration, or governmental
investigation or proceeding), whether singly or in
conjunction with any other event or events, act or
acts, condition or conditions, occurrence or
occurrences, whether or not related, which has
resulted or is reasonably likely to result in a
material adverse change in, or a material adverse
effect upon, any of (a) the financial condition,
operations, business, or properties of the Borrower
and its Consolidated Subsidiaries taken as a whole,
(b) the rights and remedies of the Agent or the Banks
under the Loan Documents, or the ability of the
Borrower to perform its obligations under the Loan
Documents to which it is a party, as applicable, or
(c) the legality, validity or enforceability
(including, without limitation, any Lien created
pursuant thereto) of any Loan Document.
"Merita" means Merita Bank Ltd, New York
Branch.
"Money Market Loan Notes" means the
promissory notes of the Borrower, substantially in the
form of Exhibit A-2, evidencing the obligation of the
Borrower to repay Money Market Loans, together with
all amendments, consolidations, modifications,
renewals and supplements thereto.
"Money Market Loans" means Loans made
pursuant to the terms and conditions set forth in
Section 2.03 hereof.
"Money Market Quote" has the meaning
specified in Section 2.03.
"Money Market Quote Request" has the
meaning specified in Section 2.03.
"Money Market Rate" has the meaning
specified in Section 2.03.
"Multiemployer Plan" shall have the
meaning set forth in Section 4001(a)(3) of ERISA.
"Net Income" means, as applied to any
Person for any period, the aggregate amount of net
income of such Person, after taxes, for such period,
as determined in accordance with GAAP.
"Notes" means the Syndicated Dollar Notes,
Foreign Currency Notes, the Finnish Markka Loan Notes,
the Money Market Loan Notes, or any or all of them, as
the context shall require.
"Notice of Borrowing" has the meaning set
forth in Section 2.02.
<PAGE>
"Participant" has the meaning set forth in
Section 9.08(b).
"PBGC" means the Pension Benefit Guaranty
Corporation or any entity succeeding to any or all of
its functions under ERISA.
"Performance Pricing Determination Date"
has the meaning set forth in Section 2.07(b).
"Person" means an individual, a
corporation, a partnership, an unincorporated
association, a trust or any other entity or
organization, including, but not limited to, a
government or political subdivision or an agency or
instrumentality thereof.
"Plan" means at any time an employee
pension benefit plan which is covered by Title IV of
ERISA or subject to the minimum funding standards
under Section 412 of the Code and is either (i)
maintained by a member of the Controlled Group for
employees of any member of the Controlled Group or
(ii) maintained pursuant to a collective bargaining
agreement or any other arrangement under which more
than one employer makes contributions and to which a
member of the Controlled Group is then making or
accruing an obligation to make contributions or has
within the preceding 5 plan years made contributions.
"Pledge Agreement" means a Pledge
Agreement substantially in the form of Exhibit J,
executed in favor of the Agent, for the benefit of the
Banks.
"Pledged Note" means a demand note
substantially in the form of Appendix 1 to Exhibit J
to the Pledge Agreement.
"Prime Rate" refers to that interest rate
so denominated and set by Wachovia from time to time
as an interest rate basis for borrowings. The Prime
Rate is but one of several interest rate bases used by
Wachovia. Wachovia lends at interest rates above and
below the Prime Rate.
"Prior Credit Agreement" means that credit
agreement by and among the Agent, the Borrower and the
other banks which are a party thereto dated February
18, 1994.
"Properties" means all real property
owned, leased or otherwise used or occupied by the
Borrower or any Subsidiary, wherever located.
"Quarterly Date" means the last day of
each Fiscal Quarter.
<PAGE>
"Redeemable Preferred Stock" of any Person
means any preferred stock issued by such Person which
is at any time prior to the Termination Date either
(i) mandatorily redeemable (by sinking fund or similar
payments or otherwise) or (ii) redeemable at the
option of the holder thereof.
"Refunding Loan" means a new Loan made on
the day on which an outstanding Loan is maturing, if
and to the extent that the proceeds thereof are used
entirely for the purpose of paying such maturing Loan,
excluding any difference between the amount of such
maturing Loan and any greater amount being borrowed on
such day and actually either being made available to
the Borrower pursuant to Section 2.02(c) or remitted
to the Agent as provided in Section 2.12, in each case
as contemplated in Section 2.02(d).
"Regulation D" means Regulation D of the
Board of Governors of the Federal Reserve System, as
in effect from time to time, together with all
official rulings and interpretations issued
thereunder.
"Regulation G" means Regulation G of the
Board of Governors of the Federal Reserve System, as
in effect from time to time, together with all
official rulings and interpretations issued
thereunder.
"Regulation T" means Regulation T of the
Board of Governors of the Federal Reserve System, as
in effect from time to time, together with all
official rulings and interpretations issued
thereunder.
"Regulation U" means Regulation U of the
Board of Governors of the Federal Reserve System, as
in effect from time to time, together with all
official rulings and interpretations issued
thereunder.
"Regulation X" means Regulation X of the
Board of Governors of the Federal Reserve System, as
in effect from time to time, together with all
official rulings and interpretations issued
thereunder.
"Required Banks" means at any time Banks
having at least 66 2/3% of the aggregate amount of the
Commitments or, if the Commitments are no longer in
effect, Banks holding at least 66 2/3% of the
aggregate outstanding principal amount of the sum of
the Notes.
"Restricted Payment" means (i) any
Dividend by the Borrower or (ii) any payment by the
Borrower on account of the purchase, redemption,
retirement or acquisition of (a) any shares of the
Borrower's Capital Stock (except shares acquired upon (i)
<PAGE>
the conversion thereof into other shares of its
Capital Stock, or (ii) provided no Event of Default
has occurred and is continuing, the authorized
purchase thereof pursuant to the Borrower's share
repurchase program in effect from time to time) or (b)
any option, warrant or other right to acquire shares
of the Borrower's Capital Stock.
"Second Tier Foreign Subsidiary" means a
Foreign Subsidiary owned by a Foreign Subsidiary.
"Stated Maturity Date" means, with respect
to any Money Market Loan, the "Stated Maturity Date"
therefor specified by the Bank in the applicable Money
Market Quote.
"Stockholders' Equity" means, at any time,
the shareholders' equity of the Borrower and its
Consolidated Subsidiaries, as set forth or reflected
on the most recent consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries prepared in
accordance with GAAP, but excluding any Redeemable
Preferred Stock of the Borrower or any of its
Consolidated Subsidiaries. Shareholders' equity,
under GAAP as of the Closing Date, generally would
include, but not be limited to (i) the par or stated
value of all outstanding Capital Stock, (ii) capital
surplus, (iii) retained earnings, and (iv) various
deductions such as (A) purchases of treasury stock,
(B) valuation allowances, (C) receivables due from an
employee stock ownership plan, (D) employee stock
ownership plan debt Guarantees, and (E) translation
adjustments for foreign currency transactions.
"Subsidiary" means any corporation or
other Person of which securities or other ownership
interests having ordinary voting power to elect a
majority of the board of directors or other persons
performing similar functions are at the time directly
or indirectly owned by the Borrower.
"Syndicated Dollar Loans" means Loans made
in Dollars by all of the Banks at the same time
pursuant to Section 2.01, each of which may be either
a Domestic Loan or a Euro-Dollar Loan.
"Syndicated Dollar Notes" means the
promissory notes of the Borrower, substantially in the
form of Exhibit A-1, evidencing the obligation of the
Borrower to repay Syndicated Dollar Loans, together
with all amendments, consolidations, modifications,
renewals and supplements thereto.
"Syndicated Loans" means Syndicated Dollar
Loans or Foreign Currency Loans, or either or both of
them, as the context shall require.
<PAGE>
"Syntech S.p.A." means Syntech S.p.A., an
Italian corporation.
"Termination Date" means July 30, 2002.
"Third Parties" means all lessees,
sublessees, licensees and other users of the
Properties, excluding those users of the Properties in
the ordinary course of the Borrower's business and on
a temporary basis.
"Transferee" has the meaning set forth in
Section 9.08(d).
"Unfunded Vested Liabilities" means, with
respect to any Plan at any time, the amount (if any)
by which (i) the present value of all vested
nonforfeitable benefits under such Plan exceeds (ii)
the fair market value of all Plan assets allocable to
such benefits, all determined as of the then most
recent valuation date for such Plan, but only to the
extent that such excess represents a potential
liability of a member of the Controlled Group to the
PBGC or the Plan under Title IV of ERISA.
"Unaudited Statements" has the meaning set
forth in Section 2.07(b).
"Unused Commitment" means at any date,
with respect to any Bank, an amount equal to its
Commitment less the aggregate outstanding principal
amount of its Syndicated Dollar Loans and Foreign
Currency Loans to the Borrower (excluding the Money
Market Loans, and with respect to Merita, the Finnish
Markka Loans).
"Unmatured Prior Loan" means that certain
$8,000,000 Money Market Loan made by Wachovia to the
Borrower under the Prior Credit Agreement with an
interest period maturing on August 14, 1997.
"Wachovia" means Wachovia Bank, N.A., a
national banking association, and its successors.
"Wholly Owned Subsidiary" means any
Subsidiary all of the shares of Capital Stock or other
ownership interests of which (except directors'
qualifying shares) are at the time directly or
indirectly owned by the Borrower.
SECTION 1.02. Accounting Terms and
Determinations. Unless otherwise specified herein,
all terms of an accounting character used herein shall
be interpreted, all accounting determinations
hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared,
<PAGE>
in accordance with GAAP, applied on a basis consistent
(except for changes concurred in by the Borrower's
independent public accountants or otherwise required
by a change in GAAP) with the most recent audited
consolidated financial statements of the Borrower and
its Consolidated Subsidiaries delivered to the Banks
unless with respect to any such change concurred in by
the Borrower's independent public accountants or
required by GAAP, in determining compliance with any
of the provisions of this Agreement or any of the
other Loan Documents: (i) the Borrower shall have
objected to determining such compliance on such basis
at the time of delivery of such financial statements,
or (ii) the Required Banks shall so object in writing
within 30 days after the delivery of such financial
statements, in either of which events such
calculations shall be made on a basis consistent with
those used in the preparation of the latest financial
statements as to which such objection shall not have
been made (which, if objection is made in respect of
the first financial statements delivered under Section
5.01, shall mean the financial statements referred to
in Section 4.04).
SECTION 1.03. References. Unless
otherwise indicated, references in this Agreement to
"Articles", "Exhibits", "Schedules", "Sections" and
other Subdivisions are references to articles,
exhibits, schedules, sections and other subdivisions
hereof.
SECTION 1.04. Use of Defined Terms. All
terms defined in this Agreement shall have the same
defined meanings when used in any of the other Loan
Documents, unless otherwise defined therein or unless
the context shall require otherwise.
SECTION 1.05. Terminology. All personal
pronouns used in this Agreement, whether used in the
masculine, feminine or neuter gender, shall include
all other genders; the singular shall include the
plural, and the plural shall include the singular.
Titles of Articles and Sections in this Agreement are
for convenience only, and neither limit nor amplify
the provisions of this Agreement.
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments to Lend. Each
Bank severally agrees, on the terms and conditions set
forth herein, to make Syndicated Loans (which may be,
at the option of the Borrower and subject to the terms
and conditions hereof, Foreign Currency Loans or
Syndicated Dollar Loans, and Syndicated Dollar Loans may
<PAGE>
be Domestic Loans or Euro-Dollar Loans) to the
Borrower from time to time before the Termination
Date; provided that:
(i) the sum of the aggregate principal
amount of Syndicated Dollar Loans and the Dollar
Equivalent of the aggregate principal amount of
Foreign Currency Loans to be made by such Bank
to the Borrower shall not exceed the amount of
its Unused Commitment, and
(ii) immediately after each such Loan is
made, the aggregate outstanding principal amount
of all Syndicated Dollar Loans, Finnish Markka
Loans, Money Market Loans, the Dollar Equivalent
of Foreign Currency Loans, and the Unmatured
Prior Loan shall not exceed the aggregate amount
of the Commitments of all of the Banks.
Subject to the foregoing, the Borrower shall be
permitted, subject to the terms and conditions hereof,
to obtain Loans up to the full aggregate amount of the
Unused Commitments of the Banks. The Dollar Equivalent
of each Foreign Currency Loan on the date of the
delivery of the Notice of Borrowing for each Foreign
Currency Loan (in accordance with the terms hereof)
shall be deemed to be the amount of the Foreign
Currency Loan outstanding for the purpose of
calculating the Unused Commitments on the date of
disbursement and on such date of delivery of the
Notice of Borrowing, the Agent shall calculate the
Dollar Equivalent of each of the (x) outstanding
Foreign Currency Loans and Finnish Markka Loans, and
(y) requested Foreign Currency Loans and Finnish
Markka Loans. Each Euro-Dollar Borrowing and Foreign
Currency Borrowing under this Section shall be in an
aggregate principal amount of $3,000,000 (or the
Dollar Equivalent thereof in any Foreign Currency
Borrowing) or any larger multiple of $1,000,000
(except that any such Borrowing may be in the
aggregate amount of the Unused Commitments) and shall
be made from the several Banks ratably in proportion
to their respective Commitments. Each Base Rate
Borrowing under this Section shall be in an aggregate
principal amount of $1,000,000 or any larger multiple
of $500,000 (except that any such Borrowing may be in
the aggregate amount of the Unused Commitments) and
shall be made from the several Banks ratably in
proportion to their respective Commitments. Within
the foregoing limits, the Borrower may borrow under
this Section, repay or, to the extent permitted by
Section 2.10, prepay Loans and reborrow under this
Section at any time before the Termination Date.
SECTION 2.02. Method of Borrowing. (a)
The Borrower shall give the Agent notice (a "Notice of
Borrowing"), which shall be substantially in the form
of Exhibit E, prior to 12:00 P.M. (Atlanta, Georgia
time) for Syndicated Dollar Borrowings, and 10:30 A.M.
(Atlanta, Georgia time) for Foreign Currency
<PAGE>
Borrowings and Finnish Markka Borrowings, on the same
Domestic Business Day for each Syndicated Borrowing
which is a Base Rate Borrowing, at least 3 Euro-Dollar
Business Days before each Euro-Dollar Borrowing, and
at least 3 Foreign Currency Business Days before each
Foreign Currency Borrowing and Finnish Markka
Borrowings, specifying:
(i) the date of such Borrowing, which
shall be a Domestic Business Day in the case of
a Domestic Borrowing, a Euro-Dollar Business Day
in the case of a Euro-Dollar Borrowing, and a
Foreign Currency Business Day in the case of a
Foreign Currency Borrowing or Finnish Markka
Borrowing,
(ii) the aggregate amount of such
Borrowing,
(iii) whether the Loans comprising such
Borrowing are to be Syndicated Dollar Loans,
Foreign Currency Loans or Finnish Markka Loans,
and (A) if such Loans are to be Syndicated
Dollar Loans, whether they are to be Base Rate
Loans or Euro-Dollar Loans, and (B) if such
Loans are to be Foreign Currency Loans,
specifying the Foreign Currency, and
(iv) in the case of a Fixed Rate
Borrowing, the duration of the Interest Period
applicable thereto, subject to the provisions of
the definition of Interest Period.
(b) Upon receipt of a Notice of
Borrowing, the Agent shall promptly notify each Bank
of the contents thereof and of such Bank's ratable
share of such Borrowing (unless such Loan is a Finnish
Markka Loan) and such Notice of Borrowing shall not
thereafter be revocable by the Borrower. If the
Notice of Borrowing specifies a Foreign Currency Loan
or Finnish Markka Loan and does not specify the
Interest Period applicable thereto, Borrower shall be
deemed to have selected the Interest Period applicable
to the Notice of Borrowing to be one month. After
receipt of Borrower's written notice designating its
Interest Period selection (or the failure of Borrower
to select an Interest Period prior to 10:30 a.m.),
Agent shall promptly notify each Bank of the
determined Interest Period for the Foreign Currency
Loan and Finnish Markka Loan.
(c) Not later than 2:00 P.M. (Atlanta,
Georgia time) on the date of each Borrowing
denominated in Dollars, each Bank shall (except as
provided in paragraph (d) of this Section) make
available its ratable share of such Borrowing, in
Federal or other funds immediately available in
Atlanta, Georgia, to the Agent at its address referred
to in Section 9.01, or if such Borrowing is a Foreign
Currency Borrowing, each Bank shall (except as
provided in paragraph (d) of this Section) make
available its ratable share of such Borrowing, immediately
<PAGE>
available at such other office as the
Agent has previously specified in a notice to each
Bank, in such funds as are then customary for the
settlement of international transactions in such
currency and no later than such local time, as the
Agent has previously specified in a notice to each
Bank, as is necessary for such funds to be received
and transferred to the Borrower for same day value on
the date of the Borrowing. Unless the Agent
determines that any applicable condition specified in
Article III has not been satisfied, the Agent will
make the funds so received from the Banks available to
the Borrower at the Agent's address referred to in
Section 9.01, or such other address as the Agent and
the Borrower shall agree to, in each case in the type
of funds received by the Agent from the Banks. Unless
the Agent receives notice from a Bank, at the Agent's
address referred to in or specified pursuant to
Section 9.01, no later than 4:00 P.M. (local time at
such address) on the Domestic Business Day before the
date of a Borrowing stating that such Bank will not
make a Loan in connection with such Borrowing, the
Agent shall be entitled to assume that such Bank will
make a Loan in connection with such Borrowing and, in
reliance on such assumption, the Agent may (but shall
not be obligated to) make available such Bank's
ratable share of such Borrowing to the Borrower for
the account of such Bank. If the Agent makes any such
Bank's ratable share of a Borrowing available to the
Borrower, the Agent shall promptly notify (which
notice may be telephonic) the Borrower of the identity
of the Bank for whom such funds were advanced and the
amount of such advance. The Agent shall promptly
notify (which notice may be telephonic) the Borrower
of the details of any notice received from any Bank
stating that any such Bank does not intend to make its
ratable share of funds available in connection with
any relevant Borrowing. If the Agent makes such
Bank's ratable share available to the Borrower and
such Bank does not in fact make its ratable share of
such Syndicated Borrowing available on such date, the
Agent shall be entitled to recover such Bank's ratable
share from such Bank or the Borrower (and for such
purpose shall be entitled to charge such amount to any
account of the Borrower maintained with the Agent),
together with interest thereon for each day during the
period from the date of such Borrowing until such sum
shall be paid in full at a rate per annum equal to the
rate at which the Agent determines that it obtained
(or could have obtained) overnight Federal funds to
cover such amount for each such day during such
period, provided that any such payment by the Borrower
of such Bank's ratable share and interest thereon
shall be without prejudice to any rights that the
Borrower may have against such Bank. If the Agent
does not exercise its option to advance funds for the
account of such Bank, it shall forthwith notify the
Borrower of such decision.
<PAGE>
(d) If any Bank makes a new Loan hereunder
on a day on which the Borrower is to repay all or any
part of an outstanding Loan from such Bank, such Bank
shall apply the proceeds of its new Loan to make such
repayment as a Refunding Loan and only an amount equal
to the difference (if any) between the amount being
borrowed and the amount of such Refunding Loan shall
be made available by such Bank to the Agent as
provided in paragraph (c) of this Section, or remitted
by the Borrower to the Agent as provided in Section
2.12, as the case may be; provided, however, that if
the Loan which is to be repaid is a Foreign Currency
Loan or Finnish Markka Loan, the foregoing provisions
shall apply only if the new Loan is to be made in the
same Foreign Currency as such outstanding Loan, or in
Finnish markkas if such Loan was a Finnish Markka
Loan.
(e) Notwithstanding anything to the
contrary contained in this Agreement, no Fixed Rate
Borrowing may be made if there shall have occurred a
Default or an Event of Default, which Default or Event
of Default shall not have been cured or waived.
(f) In the event that a Notice of
Borrowing fails to specify whether the Loans
comprising such Borrowing are to be Base Rate Loans,
Euro-Dollar Loans, Finnish Markka Loans or Foreign
Currency Loans, such Loans shall be made as Base Rate
Loans. If the Borrower is otherwise entitled under
this Agreement to repay any Loans maturing at the end
of an Interest Period applicable thereto with the
proceeds of a new Borrowing, and the Borrower fails to
repay such Loans using its own moneys and fails to
give a Notice of Borrowing in connection with such new
Borrowing, a new Borrowing shall be deemed to be made
on the date such Loans mature in an amount equal to
the principal amount of the Loans so maturing, and the
Loans comprising such new Borrowing shall be Base Rate
Loans, which shall be in an amount equal to the Dollar
Equivalent of such maturing Loans, if such maturing
Loans were Foreign Currency Loans or Finnish Markka
Loans as of the date of maturity.
(g) Notwithstanding anything to the
contrary contained in this Agreement, there shall not
be more than 8 Fixed Rate Loans outstanding at any
time.
SECTION 2.03. Money Market Loans. (a) In
addition to making Syndicated Borrowings, the Borrower
may, as set forth in this Section 2.03, request the
Banks to make offers to make Money Market Borrowings
available to the Borrower. The Banks may, but shall
have no obligation to, make such offers and the
Borrower may, but shall have no obligation to, accept
any such offers in the manner set forth in this
Section 2.03, provided that:
<PAGE>
(i) the aggregate principal amount of
all Money Market Loans, together with the
aggregate principal amount of all Syndicated
Loans, at any one time outstanding shall not
exceed the aggregate amount of the Commitments
of all of the Banks at such time; and
(ii) the Money Market Loans of any Bank
will be deemed to be usage of the Commitments
for the purpose of calculating availability
pursuant to Section 2.01(ii) and to this Section
2.03(a)(ii), but will not reduce such Bank's
obligation to lend its pro rata share of the
remaining aggregate Unused Commitments.
(b) When the Borrower wishes to request
offers to make Money Market Loans, it shall give the
Agent (which shall promptly notify the Banks) notice
substantially in the form of Exhibit K hereto (a
"Money Market Quote Request") so as to be received no
later than 12:00 P.M. (noon) (Atlanta, Georgia time)
at least 1 Domestic Business Day prior to the date of
the Money Market Borrowing proposed therein (or such
other time and date as the Borrower and the Agent,
with the consent of the Required Banks, may agree),
specifying:
(i) the proposed date of such Money
Market Borrowing, which shall be a Domestic
Business Day (the "Borrowing Date");
(ii) the maturity date (or dates) (each a
"Stated Maturity Date") for repayment of each
Money Market Loan to be made as part of such
Money Market Borrowing (which Stated Maturity
Date shall be that date occurring either 7 days,
14 days, 30 days, or any other amount of days
greater than 30 days but not greater than 180
days from the date of such Money Market
Borrowing); provided, that the Stated Maturity
Date for any Money Market Loan may not extend
beyond the Termination Date (as in effect on the
date of such Money Market Quote Request); and
(iii) the aggregate amount of principal to
be received by the Borrower as a result of such
Money Market Borrowing, which shall be at least
$3,000,000 (and in larger integral multiples of
$500,000) but shall not cause the limits
specified in Section 2.03(a) to be violated.
The Borrower may request offers to make Money Market
Loans having up to 3 different Stated Maturity Dates
in a single Money Market Quote Request; provided, that
the request for each separate Stated Maturity Date
shall be deemed to be a separate Money Market Quote
Request for a separate Money Market Borrowing. Except
as otherwise provided in the preceding sentence, after the
<PAGE>
first Money Market Quote Request has been given
hereunder, no Money Market Quote Request shall be
given until at least 5 Domestic Business Days after
all prior Money Market Quote Requests have been fully
processed by the Agent, the Banks and the Borrower
pursuant to this Section 2.03.
(c) (i) Each Bank may, but shall have no
obligation to, submit a response containing an
offer to make a Money Market Loan substantially
in the form of Exhibit L hereto (a "Money Market
Quote") in response to any Money Market Quote
Request; provided, that, if the Borrower's
request under Section 2.03(b) specified more
than 1 Stated Maturity Date, such Bank may, but
shall have no obligation to, make a single
submission containing a separate offer for each
such Stated Maturity Date and each such separate
offer shall be deemed to be a separate Money
Market Quote. Each Money Market Quote must be
submitted to the Agent not later than 10:30 A.M.
(Atlanta, Georgia time) on the Borrowing Date;
provided that any Money Market Quote submitted
by Wachovia may be submitted, and may only be
submitted, if Wachovia notifies the Borrower of
the terms of the offer contained therein not
later than 10:15 A.M. (Atlanta, Georgia time) on
the Borrowing Date (or 15 minutes prior to the
time that the other Banks must have submitted
their respective Money Market Quotes). Subject
to Section 6.01, any Money Market Quote so made
shall be irrevocable except with the written
consent of the Agent given on the instructions
of the Borrower.
(ii) Each Money Market Quote shall
specify:
(A) the proposed Borrowing Date
and the Stated Maturity Date therefor;
(B) the principal amounts of the
Money Market Loan which the quoting Bank
is willing to make for the applicable
Money Market Quote, which principal
amounts (w) may not exceed the aggregate
amount of the Unused Commitments, (x) may
be greater than or less than the
Commitment of the quoting Bank, (y) shall
be at least $3,000,000 or a larger
integral multiple of $500,000, and (z) may
not exceed the principal amount of the
Money Market Borrowing for which offers
were requested;
(C) the rate of interest per annum
(rounded upwards, if necessary, to the
nearest 1/100th of 1%) offered for each
such Money Market Loan, (such amounts
being hereinafter referred to as the
"Money Market Rate"); and
<PAGE>
(D) the identity of the quoting
Bank.
Unless otherwise agreed by the Agent, all of the
Banks, and the Borrower, no Money Market Quote
shall contain qualifying, conditional or similar
language or propose terms other than or in
addition to those set forth in the applicable
Money Market Quote Request (other than setting
forth the maximum principal amounts of the Money
Market Loan which the quoting Bank is willing to
make for the applicable Interest Period).
(d) The Agent shall as promptly as
practicable after the Money Market Quote is submitted
(but in any event not later than 11:30 A.M. (Atlanta,
Georgia time)) on the Borrowing Date, notify the
Borrower of the terms (i) of any Money Market Quote
submitted by a Bank that is in accordance with Section
2.03(c) and (ii) of any Money Market Quote that
amends, modifies or is otherwise inconsistent with a
previous Money Market Quote submitted by such Bank
with respect to the same Money Market Quote Request.
Any such subsequent Money Market Quote shall be
disregarded by the Agent unless such subsequent Money
Market Quote is submitted solely to correct a manifest
error in such former Money Market Quote. The Agent's
notice to the Borrower shall specify (A) the principal
amounts of the Money Market Borrowing for which offers
have been received and (B) the respective principal
amounts and Money Market Rates so offered by each Bank
(identifying the Bank that made each Money Market
Quote).
(e) Not later than 12:30 P.M. (Atlanta,
Georgia time) on the Borrowing Date, the Borrower
shall notify the Agent of its acceptance or
nonacceptance of the offers so notified to it pursuant
to Section 2.03(d) and the Agent shall promptly notify
each affected Bank. In the case of acceptance, such
notice shall specify the aggregate principal amount of
offers (for each Stated Maturity Date) that are
accepted. The Borrower may accept any Money Market
Quote in whole or in part; provided that:
(i) the aggregate principal amount of
each Money Market Borrowing may not exceed the
applicable amount set forth in the related Money
Market Quote Request;
(ii) the aggregate principal amount of
each Money Market Loan comprising a Money Market
Borrowing shall be at least $3,000,000 (and in
larger multiples of $500,000) but shall not
cause the limits specified in Section 2.03(a) to
be violated;
(iii) acceptance of offers may only be
made in ascending order of Money Market Rates;
and
<PAGE>
(iv) the Borrower may not accept any
offer where the Agent has advised the Borrower
that such offer fails to comply with Section
2.03(c)(ii) or otherwise fails to comply with
the requirements of this Agreement (including
without limitation, Section 2.03(a)).
If offers are made by 2 or more Banks with the same
Money Market Rates for a greater aggregate principal
amount than the amount in respect of which offers are
accepted for the related Stated Maturity Date, the
principal amount of Money Market Loans in respect of
which such offers are accepted shall be allocated by
the Borrower among such Banks as nearly as possible in
proportion to the aggregate principal amount of such
offers. Determinations by the Borrower of the amounts
of Money Market Loans shall be conclusive in the
absence of manifest error.
(f) Any Bank whose offer to make any
Money Market Loan has been accepted shall, not later
than 1:30 P.M. (Atlanta, Georgia time) on the
Borrowing Date, make the appropriate amount of such
Money Market Loan available to the Agent at its
address referred to in Section 9.01 in immediately
available funds. The amount so received by the Agent
shall, subject to the terms and conditions of this
Agreement, be made available to the Borrower on such
date by depositing the same, in immediately available
funds, not later than 4:30 P.M. (Atlanta, Georgia
time), in an account of such Borrower maintained with
Wachovia.
SECTION 2.04. Finnish Markka Loans. (a)
In addition to the foregoing, Merita shall from time
to time, upon receipt of a Notice of Borrowing from
the Borrower therefor (through the Agent), if the
Agent determines that the applicable conditions
precedent in Article III have been satisfied and so
notifies Merita, make available to the Borrower
Finnish Markka Loans at such office as Merita has
previously specified pursuant to a written notice to
the Borrower (and no later than such local time as is
necessary for such funds to be received and
transferred to the Borrower for same day value on the
date of the Borrowing), in an aggregate principal
amount at any time outstanding not exceeding the
Dollar Equivalent of $5,000,000; provided that,
immediately after such Finnish Markka Loan is made,
the aggregate outstanding amount of all Loans shall
not exceed the aggregate Commitments. Each Finnish
Markka Borrowing under this Section 2.04 shall be in
an aggregate principal Dollar Equivalent amount of
$1,000,000 or any larger multiple Dollar Equivalent
amount of $250,000. Within the foregoing limits, the
Borrower may borrow under this Section 2.04, prepay
and reborrow under this Section 2.04 at any time
before the Termination Date. Merita shall notify the
Agent upon receipt of any payment made by the Borrower
with respect to Finnish Markka Loans.
<PAGE>
(b) The Dollar Equivalent of each Finnish
Markka Loan on the date each Finnish Markka Loan is
disbursed shall be deemed to be the amount of the
Finnish Markka Loan outstanding for the purpose of
calculating the Unused Commitments on the date of
disbursement.
(c) At any time, upon the request of Merita
through the Agent, during the existence of an Event of
Default, each Bank other than Merita shall, on the
third Domestic Business Day after such request is
made, purchase a participating interest in Finnish
Markka Loans in an amount equal to its ratable share
(based upon its respective Commitment) of the Dollar
Equivalent amount of such Finnish Markka Loans. On
such third Domestic Business Day, each Bank will
immediately transfer to Merita, in immediately
available funds, the amount of its participation at
such office as Merita has previously specified
pursuant to a written notice to the Agent and the
Banks.
(d) Whenever, at any time after Merita has
received from any such Bank its participating interest
in a Finnish Markka Loan, the Agent receives any
payment on account thereof, the Agent will distribute
to such Bank its participating interest in such amount
(appropriately adjusted, in the case of interest
payments, to reflect the period of time during which
such Bank's participating interest was outstanding and
funded); provided, however, that in the event that
such payment received by the Agent is required to be
returned, such Bank will return to the Agent any
portion thereof previously distributed by the Agent to
it. Each Bank's obligation to purchase such
participating interests shall be absolute and
unconditional and shall not be affected by any
circumstance, including, without limitation: (i) any
set-off, counterclaim, recoupment, defense or other
right which such Bank or any other Person may have
against Merita requesting such purchase or any other
Person for any reason whatsoever; (ii) the occurrence
or continuance of a Default or an Event of Default or
the termination of the Commitments; (iii) any adverse
change in the condition (financial or otherwise) of
the Borrower or any other Person; (iv) any breach of
this Agreement by the Borrower or any other Bank; or
(v) any other circumstance, happening or event
whatsoever, whether or not similar to any of the
foregoing. Merita agrees to hold the Agent and the
Banks harmless from any loss incurred by the Agent or
the Banks arising from any change in Dollar Equivalent
of Finnish markkas between the date such participating
interest was purchased and the date of payment
thereof.
SECTION 2.05. Maturity of Loans. Each
Loan included in any Borrowing shall mature, and the
principal amount thereof shall be due and payable, on
the last day of the Interest Period applicable to such
Borrowing, unless such Loan shall be due and
<PAGE>
payable prior thereto by reason of the provisions of this
Agreement (including, without limitation, Section
6.01). Notwithstanding the foregoing, the outstanding
principal amount of the Loans, if any, together with
all accrued but unpaid interest thereon, if any, shall
be due and payable on the Termination Date.
SECTION 2.06. Interest Rates. (a) Each
Base Rate Loan shall bear interest on the outstanding
principal amount thereof, for each day from the date
such Loan is made until it becomes due, at a rate per
annum equal to the Base Rate for such date plus the
Applicable Margin. Such interest shall be payable for
each Interest Period on the last day thereof.
(b) Each Euro-Dollar Loan shall bear
interest on the outstanding principal amount thereof,
for the Interest Period applicable thereto, at a rate
per annum equal to the sum of the Applicable Margin
plus the applicable Adjusted London Interbank Offered
Rate for such Interest Period. Such interest shall be
payable for each Interest Period on the last day
thereof and, if such Interest Period is longer than 3
months, at intervals of 3 months after the first day
thereof.
(c) Each Money Market Loan shall bear
interest on the outstanding principal amount thereof,
for each day from the date such Money Market Loan is
made until it becomes due, at a rate per annum equal
to the applicable Money Market Rate set forth in the
relevant Money Market Quote. Such interest shall be
payable on the Stated Maturity Date thereof, and, if
the Stated Maturity Date occurs more than 3 months
after the date of the relevant Money Market Loan, at
intervals of 3 months after the first day thereof.
(d) Each Finnish Markka Loan shall bear
interest on the outstanding principal amount thereof,
for the Interest Period applicable thereto, at a rate
per annum equal to the sum of the Applicable Margin
plus the applicable Adjusted IBOR Rate for such
Interest Period. Such interest shall be payable for
each Interest Period on the last day thereof and, if
such Interest Period is longer than 3 months, at
intervals of 3 months after the first day thereof.
(e) Each Foreign Currency Loan shall bear
interest on the outstanding principal amount thereof,
for the Interest Period applicable thereto, at a rate
per annum equal to the sum of the Applicable Margin
plus the applicable Adjusted IBOR Rate for such
Interest Period. Such interest shall be payable for
each Interest Period on the last day thereof and, if
such Interest Period is longer than 3 months, at
intervals of 3 months after the first day thereof.
Any overdue principal of and, to the
<PAGE>
extent permitted by law, overdue interest on any Foreign Currency
Loan shall bear interest, payable on demand, for each day until
paid at a rate per annum equal to the Default Rate.
(f) After the occurrence and during the
continuance of a Default, the principal amount of the
Loans (and, to the extent permitted by applicable law,
all accrued interest thereon) may, at the election of
the Required Banks, bear interest at the Default Rate.
SECTION 2.07. Fees; Calculations. (a) The
Borrower shall pay to the Agent for the ratable
account of each Bank a facility fee (the "Facility
Fee") on the maximum amount of the aggregate
Commitments in effect for any relevant period,
irrespective of usage, as follows: (i) if the
Borrower's ratio of Consolidated Funded Debt to EBITDA
is less than 1.0 to 1.0, 0.075%, (ii) if the
Borrower's ratio of Consolidated Funded Debt to EBITDA
is greater than or equal to 1.0 to 1.0 but less than
1.50 to 1.0, 0.09%, (iii) if the Borrower's ratio of
Consolidated Funded Debt to EBITDA is greater than or
equal to 1.50 to 1.0 but less than 2.0 to 1.0, 0.11%,
(iv) if the Borrower's ratio of Consolidated Funded
Debt to EBITDA is greater than or equal to 2.0 to 1.0
but less than 2.5 to 1.0, 0.15%, (v) if the Borrower's
ratio of Consolidated Funded Debt to EBITDA is greater
than or equal to 2.5 to 1.0 but less than 3.0 to 1.0,
0.175%, (vi) if the Borrower's ratio of Consolidated
Funded Debt to EBITDA is greater than or equal to 3.0
to 1.0 but less than 3.5 to 1.0, 0.20%, and (vii) if
the Borrower's ratio of Consolidated Funded Debt to
EBITDA is equal to or greater than 3.50 to 1.0, 0.30%.
(b) In determining the amounts to be
paid by the Borrower pursuant to Sections 2.06 and
2.07(a), the Borrower and the Banks shall refer to the
Borrower's most recent financial statements delivered
to the Banks pursuant to Section 5.01(a) (together
with the Compliance Certificate delivered in
connection therewith, the "Audited Statements") and
Section 5.01(b) (together with the Compliance
Certificate delivered in connection therewith, the
"Unaudited Statements"); provided, that, should any
relevant Audited Statements or Unaudited Statements be
delivered on a date later than a Performance Pricing
Determination Date, the Applicable Margin and fees to
be paid hereunder shall equal the highest percentage
set forth therefor in Section 2.07 and in the
definition of "Applicable Margin," until the next
succeeding Performance Pricing Determination Date (as
such term is hereinafter defined). For purposes
hereof, "Performance Pricing Determination Date" shall
mean each date that occurs 45 days after the end of
each of the first 3 Fiscal Quarters, and 90 days after
the end of the last Fiscal Quarter, of the Borrower.
All determinations hereunder shall be made by the
Agent unless the Required Banks shall object to any such
<PAGE>
determination. Notwithstanding the foregoing,
for purposes of determining the amounts to be paid by
the Borrower pursuant to Sections 2.06 and 2.07(a)
until the Performance Pricing Determination Date which
occurs on or about January 30, 1998, the ratio of
Consolidated Funded Debt to EBITDA shall conclusively
be presumed to be greater than 2.0 to 1.0, but less
than 2.5 to 1.0. The Facility Fee shall accrue at all
times from and including the Closing Date to but
excluding the Termination Date and shall be payable,
in arrears, on each Quarterly Date and on the
Termination Date.
(c) The Borrower shall pay to the Agent,
for the account and sole benefit of the Agent, such
fees and other amounts at such times as set forth in
the Agent's Letter Agreement.
SECTION 2.08. Optional Termination or
Reduction of Commitments. The Borrower may, upon at
least 3 Domestic Business Days' notice to the Agent
(which notice the Agent shall promptly forward to the
Banks), terminate at any time, or proportionately
reduce the Unused Commitments from time to time by an
aggregate amount of at least $5,000,000, or any larger
multiple of $1,000,000. If the Commitments are
terminated in their entirety, all accrued fees (as
provided under Section 2.07) shall be due and payable
on the effective date of such termination.
SECTION 2.09. Termination of Commitments.
The Commitments shall terminate on the Termination
Date and any Loans (together with accrued interest
thereon) then outstanding shall be due and payable on
such date.
SECTION 2.10. Optional Prepayments. (a)
The Borrower may, upon at least 1 Domestic Business
Day's notice to the Agent, prepay any Base Rate
Borrowing in whole at any time, or from time to time
in part in amounts aggregating at least $1,000,000 or
any larger multiple of $500,000, by paying the
principal amount to be prepaid together with accrued
interest thereon to the date of prepayment. Each such
optional prepayment shall be applied to prepay ratably
the Base Rate Loans of the several Banks included in
such Base Rate Borrowing.
(b) Except as provided in Section 8.02
or required under Section 2.11(b), the Borrower may
not prepay all or any portion of the principal amount
of any Fixed Rate Loan prior to the maturity thereof.
(c) Upon receipt of a notice of
prepayment pursuant to this Section 2.10, the Agent
shall promptly notify each Bank of the contents
thereof and of such Bank's ratable share of such
<PAGE>
prepayment and such notice shall not thereafter be
revocable by the Borrower.
SECTION 2.11. Mandatory Prepayments;
Application of Payments. (a) On each date on which the
Commitments are reduced pursuant to Section 2.08, the
Borrower shall repay or prepay such principal amount
of the outstanding Loans (together with interest
accrued thereon), as may be necessary so that after
such payment the aggregate unpaid principal amount of
the Loans does not exceed the amount of the aggregate
Commitments as then reduced.
(b) If the Agent determines at any time
(either on its own initiative or at the request of any
Bank) that the aggregate principal amount of the
Foreign Currency Loans and Finnish Markka Loans
outstanding (after converting each such Foreign
Currency Loan and Finnish Markka Loan to its Dollar
Equivalent on the date of calculation) at any time
exceeds the aggregate Commitments less the outstanding
aggregate amount of all Syndicated Dollar Loans, then
upon 5 Foreign Currency Business Days' written notice
from the Agent, the Borrower shall prepay an aggregate
principal amount of Loans sufficient to reduce the
aggregate of the Foreign Currency Loans and the
Syndicated Dollar Loans outstanding to an amount not
exceeding the Commitment. Except as required by
Section 2.01 hereof, nothing in the foregoing shall
require the Agent to monitor the Dollar Equivalent
amount of outstanding Foreign Currency Loans. The
Agent shall promptly notify each Bank of the amount of
any such mandatory prepayment.
(c) All prepayments hereunder shall be
applied in the following order: (i) first to Base Rate
Loans; (ii) then to Euro-Dollar Loans; (iii) then to
Foreign Currency Loans; (iv) then to Money Market
Loans, and (v) lastly, to Finnish Markka Loans.
SECTION 2.12. General Provisions as to
Payments. (a) The Borrower shall make each payment of
principal of, and interest on, the Loans and of fees
hereunder, not later than 1:00 P.M. (Atlanta, Georgia
time) on the date when due, in Federal or other funds
(subject to paragraph (c) below with respect to
Foreign Currency Loans and Finnish Markka Loans)
immediately available in Atlanta, Georgia to the Agent
at its address referred to in Section 9.01. The Agent
will promptly distribute to each Bank its ratable
share of each such payment received by the Agent for
the account of the Banks.
(b) Whenever any payment of principal
of, or interest on, the Domestic Loans or of fees
hereunder shall be due on a day which is not a
Domestic Business Day, the date for payment thereof
shall be extended to the next succeeding Domestic
Business Day. Whenever any payment of principal of or
interest on, the Euro-Dollar Loans or the Foreign
Currency Loans shall be
<PAGE>
due on a day which is not a
Euro-Dollar Business Day or Foreign Currency Business
Day, as the case may be, the date for payment thereof
shall be extended to the next succeeding Euro-Dollar
Business Day or Foreign Currency Business Day, as the
case may be, unless such Euro-Dollar Business Day or
Foreign Currency Business Day, as the case may be,
falls in another calendar month, in which case the
date for payment thereof shall be the next preceding
Euro-Dollar Business Day or Foreign Currency Business
Day, as the case may be.
(c) All payments of principal and
interest with respect to Foreign Currency Loans shall
be made in the Foreign Currency in which the related
Foreign Currency Loan was made. All payments of
principal and interest with respect to Finnish Markka
Loans shall be made in Finnish markkas.
(d) All payments of principal, interest
and fees and all other amounts to be made by the
Borrower pursuant to this Agreement with respect to
any Loan or fee relating thereto shall be paid without
deduction for, and free from, any tax, imposts,
levies, duties, deductions, or withholdings of any
nature now or at anytime hereafter imposed by any
governmental authority or by any taxing authority
thereof or therein excluding in the case of each Bank,
(1) taxes imposed on or measured by its net income,
and franchise taxes imposed on it, by the jurisdiction
under the laws of which such Bank (as the case may be)
is organized or any political subdivision thereof, and
(2) in the case of each Bank, taxes imposed on its
income, and franchise taxes imposed on it, by the
jurisdiction of such Bank's applicable Lending Office
or any political subdivision thereof (all such non-
excluded taxes, imposts, levies, duties, deductions or
withholdings of any nature being "Taxes").
In the event that the Borrower is required
by applicable law to make any such withholding or
deduction of Taxes with respect to any Loan or fee or
other amount, the Borrower shall pay such deduction or
withholding to the applicable taxing authority, shall
promptly furnish to any Bank in respect of which such
deduction or withholding is made all receipts and
other documents evidencing such payment and shall pay
to such Bank additional amounts as may be necessary in
order that the amount received by such Bank after the
required withholding or other payment shall equal the
amount such Bank would have received had no such
withholding or other payment been made. If no
withholding or deduction of Taxes are payable in
respect to any Loan or fee relating thereto, the
Borrower shall furnish, at such Bank's request, a
certificate from each applicable taxing authority or
an opinion of counsel acceptable to such, in either
case stating that such payments are exempt from or not
subject to withholding or deduction of Taxes. If the
Borrower fails to
<PAGE>
provide such Bank the original or
certified copy of a receipt evidencing payment of
Taxes or certificate(s) or opinion of counsel of
exemption, the Borrower agrees to compensate such Bank
for, and indemnify it with respect to, the tax
consequences of the Borrower's failure to provide
evidence of tax payments or tax exemption.
Each Bank agrees, as soon as practicable
after request by it of a request by the Borrower to do
so, to file all appropriate forms and take other
appropriate action to obtain a certificate or other
appropriate document from the appropriate governmental
authority in the jurisdiction imposing the relevant
taxes, establishing that it is entitled to receive
payments of principal and interest under this
Agreement and the Notes without deduction and free
from withholding of any Taxes imposed by such
jurisdiction; provided, that, if it is unable, for any
reason, to establish such exemption, or to file such
forms and, in any event, during such period of time as
such request for exemption is pending, the Borrower
shall nonetheless remain obligated under the terms of
the immediately preceding paragraph.
In the event any Bank receives a refund of
any Taxes paid by the Borrower pursuant to this
Section 2.12(c), it will pay to the Borrower the
amount of such refund promptly upon receipt thereof;
provided, however, if at any time thereafter it is
required to return such refund, the Borrower shall
promptly repay to it the amount of such refund.
Without prejudice to the survival of any
other agreement of the Borrower hereunder, the
agreements and obligations of the Borrower and the
Banks contained in this Section 2.12(d) shall be
applicable with respect to any Participant, Assignee
or other Transferee, and any calculations required by
such provisions (i) shall be made based upon the
circumstances of such Participant, Assignee or other
Transferee, and (ii) constitute a continuing agreement
and shall survive the termination of this Agreement
and the payment in full or cancellation of the Notes.
SECTION 2.13. Computation of Interest and Fees.
Interest on Domestic Loans based on the Base Rate
shall be computed on the basis of a year of 360 days
and paid for the actual number of days elapsed
(including the first day but excluding the last day).
Interest on Euro-Dollar Loans and on
<PAGE>
Foreign Currency Loans and Finnish Markka Loans shall be computed on
the basis of a year of 360 days (except for any
Foreign Currency Loans outstanding in British pounds
sterling or Canadian dollars (or, if selected as a
Foreign Currency pursuant to clause (ii) of the
definition of "Foreign Currency," Australian dollars,
New Zealand dollars or Irish punts), which shall be
computed on the basis of a year of 365 or 366 days, as
the case may be) and paid for the actual number of
days elapsed, calculated as to each Interest Period
from and including the first day thereof to but
excluding the last day thereof. Fees payable
hereunder shall be computed on the basis of a year of
360 days and paid for the actual number of days
elapsed (including the first day but excluding the
last day).
SECTION 2.14. Notes. (a) The Syndicated
Loans of each Bank shall be evidenced by a single
Syndicated Dollar Note or a single Foreign Currency
Note, as the case may be, executed and delivered by
the Borrower, each payable to the order of such Bank
for the account of its Lending Office in an amount
equal to the original principal amount of such Bank's
Commitment.
(b) The Money Market Loans made by any
Bank to the Borrower shall be evidenced by a single
Money Market Loan Note payable to the order of such
Bank for the account of its Lending Office in an
amount equal to the original principal amount of the
aggregate Commitments.
(c) The Finnish Markka Loans made by
Merita to the Borrower shall be evidenced by a single
Finnish Markka Loan Note payable to the order of
Merita for the account of its Lending Office in an
amount equal to the Dollar Equivalent of $5,000,000.
(d) Upon receipt of each Bank's Notes
pursuant to Section 3.01, the Agent shall deliver such
Notes to such Bank. Each Bank (or Merita, with
respect to the Finnish Markka Loan Note) shall record,
and prior to any transfer of its Notes shall endorse
on the schedules forming a part thereof appropriate
notations to evidence, the date, amount and maturity
of, and effective interest rate for, each Loan made by
it, the date and amount of each payment of principal
made by the Borrower with respect thereto, and such
schedules of each such Bank's Notes shall constitute
rebuttable presumptive evidence of the respective
principal amounts owing and unpaid on such Bank's
Notes; provided, that the failure of any Bank to make
any such recordation or endorsement shall not affect
the obligation of the Borrower hereunder or under the
Notes or the ability of any Bank to assign its Notes.
Each Bank is hereby irrevocably authorized by the
Borrower so to endorse its Notes and to attach to and
make a part of any Note a continuation of any such
schedule as and when required. In order to verify the
Loans outstanding from
<PAGE>
time to time, at the request of the Borrower, the Agent
shall furnish the Borrower with its records of transactions
under this Agreement, in reasonable detail.
ARTICLE III
CONDITIONS TO BORROWINGS
SECTION 3.01. Conditions to First
Borrowing. The obligation of each Bank to make a
Syndicated Loan (or of Merita to make Finnish Markka
Loans) on the occasion of the first Syndicated
Borrowing is subject to the satisfaction of the
conditions set forth in Section 3.02 and receipt by
the Agent of the following (in sufficient number of
counterparts (except as to the Notes, any Limited
Guaranty, any Pledge Agreement and any Pledged Note)
for delivery of a counterpart to each Bank and
retention of one counterpart by the Agent):
(a) from each of the parties thereto
either (i) a duly executed counterpart of this
Agreement, each Limited Guaranty (from any
Domestic Subsidiary in existence as of the
Closing Date) and each Pledge Agreement (for any
Foreign Subsidiary in existence as of the
Closing Date) signed by such party, or (ii) a
facsimile transmission of such executed
counterpart stating that such party has duly
executed a counterpart of such document and sent
such counterpart to the Agent;
(b) from the Borrower a duly executed
Syndicated Dollar Note, a duly executed Foreign
Currency Note, a duly executed Finnish Markka
Loan Note, and a duly executed Money Market Loan
Note, for the account of each Bank complying
with the provisions of Section 2.14;
(c) an opinion letter (together with any
opinions of local counsel relied on therein) of
McDermott, Will & Emery, special counsel of the
Borrower, substantially in the form of Exhibit
B, dated as of the Closing Date, and covering
such additional matters relating to the
transactions contemplated hereby as the Agent or
any Bank may reasonably request;
(d) an opinion of Jones, Day, Reavis &
Pogue, special counsel for the Agent, dated as
of the Closing Date, substantially in the form
of Exhibit C and covering such additional
matters relating to the transactions
contemplated hereby as the Agent may reasonably
request;
<PAGE>
(e) a certificate (the "Closing
Certificate") substantially in the form of
Exhibit G), dated as of the Closing Date, signed
by a principal financial officer of the
Borrower, to the effect that (i) no Default has
occurred and is continuing on the date of the
first Borrowing and (ii) the representations and
warranties of the Borrower contained in Article
IV are true on and as of the date of the first
Borrowing hereunder;
(f) all documents which the Agent or any
Bank may reasonably request relating to the
existence of the Borrower, the corporate
authority for and the validity of this
Agreement, the Notes, each Limited Guaranty and
each Pledge Agreement, as applicable, and the
other Loan Documents and any other matters
relevant hereto, or thereto, all in form and
substance reasonably satisfactory to the Agent,
including, without limitation, a certificate of
the Borrower substantially in the form of
Exhibit H (the "Secretary's Certificate"),
signed by the Secretary or an Assistant
Secretary of the Borrower and as to the names,
true signatures and incumbency of the officer or
officers of the Borrower authorized to execute
and deliver the Loan Documents, and certified
copies of the following items for the Borrower:
(i) Certificate/Articles of Incorporation, (ii)
Bylaws, (iii) a certificate of the Secretary of
State for the state of incorporation and
existence of the Borrower as to the good
standing of the Borrower, and (iv) the action
taken by the Board of Directors authorizing the
execution, delivery and performance of this
Agreement, the Notes, and the other Loan
Documents;
(g) a Notice of Borrowing;
(h) certified copies of the Acquisition
Agreements and the Consent Order;
(i) copy of each Guarantee outstanding
as of the Closing Date issued by the Borrower in
favor of any Person (and as listed on Schedule
1.01(a));
(j) an executed letter agreement
terminating the Prior Credit Agreement; and
(j) evidence satisfactory to the Agent
that all conditions to the closing of the
Acquisition have been satisfied except payment
of the purchase price, and that upon such first
Borrowing, the Acquisition will close.
SECTION 3.02. Conditions to All Borrowings.
The obligation of each Bank to make a Syndicated Loan on the occasion
<PAGE>
of each Syndicated Borrowing, other than a Borrowing which
consists solely of a Refunding Loan, is subject to the
satisfaction of the following conditions:
(a) receipt by the Agent of a Notice of
Borrowing;
(b) the fact that, immediately before
and after such Borrowing, no Default shall have
occurred and be continuing;
(c) the fact that the representations
and warranties of the Borrower contained in
Article IV of this Agreement shall be true on
and as of the date of such Borrowing; and
(d) the fact that, immediately after
such Borrowing, the aggregate outstanding
principal amount of all Loans of each Bank will
not exceed the amount of its Commitment.
Each Borrowing (both Syndicated, Finnish markka and
Money Market) hereunder, other than a Borrowing which
consists solely of a Refunding Loan, shall be deemed
to be a representation and warranty by the Borrower on
the date of such Borrowing as to the truth and
accuracy of the facts specified in paragraphs (b), (c)
and (d) of this Section, except to the extent they
relate to a particular date only.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
SECTION 4.01. Corporate Existence and
Power. The Borrower is a corporation duly organized,
validly existing and in good standing under the laws
of the jurisdiction of its incorporation, is duly
qualified to transact business in every jurisdiction
where, by the nature of its business, the failure to
be so qualified could have or cause a Material Adverse
Effect, and has all corporate powers and all
governmental licenses, authorizations, consents and
approvals required to carry on its business as now
conducted.
SECTION 4.02. Corporate and Governmental
Authorization; No Contravention. The execution,
delivery and performance by the Borrower of this
Agreement, the Notes and the other Loan Documents (i)
are within the Borrower's corporate powers, (ii) have
been duly authorized by all necessary corporate
action, (iii) require no action by or in respect of or
filing with, any governmental body, agency or official
not otherwise taken or obtained, (iv) do not
contravene, or constitute a default under,
<PAGE>
any provision of applicable law or regulation or of the
certificate of incorporation or by-laws of the
Borrower or of any agreement, judgment, injunction,
order, decree or other instrument binding upon the
Borrower or any of its Subsidiaries, for which
consents have not been obtained which could reasonably
be expected to have a Material Adverse Effect and (v)
do not result in the creation or imposition of any
Lien on any asset of the Borrower or any of its
Subsidiaries, except as permitted under Section 5.09.
SECTION 4.03. Binding Effect. This
Agreement constitutes a valid and binding agreement of
the Borrower enforceable in accordance with its terms,
and the Notes and the other Loan Documents, when
executed and delivered in accordance with this
Agreement, will constitute valid and binding
obligations of the Borrower and each Guarantor
enforceable in accordance with their respective terms,
provided that the enforceability hereof and thereof is
subject in each case to general principles of equity
and to bankruptcy, insolvency and similar laws
affecting the enforcement of creditors' rights
generally.
SECTION 4.04. Financial Information. (a)
The balance sheet of the Borrower as of October 31,
1996, and the related statements of income,
shareholders' equity and cash flows for the Fiscal
Year then ended, reported on by Ernst & Young, copies
of which have been delivered to each of the Banks,
fairly present in all material respects, in conformity
with GAAP, the financial position of the Borrower as
of such dates and their results of operations and cash
flows for such period stated.
(b) Since April 30, 1997 there has been
no event, act, condition or occurrence having a
Material Adverse Effect.
SECTION 4.05. No Litigation. There is no
action, suit or proceeding pending, or to the
knowledge of the Borrower threatened, against or
affecting the Borrower or any of its Subsidiaries
before any court or arbitrator or any governmental
body, agency or official which could reasonably be
expected to have a Material Adverse Effect.
SECTION 4.06. Compliance with ERISA. (a)
The Borrower and each member of the Controlled Group
have fulfilled their obligations under the minimum
funding standards of ERISA and the Code with respect
to each Plan and are in compliance in all material
respects with the presently applicable provisions of
ERISA and the Code, and have not incurred any
liability to the PBGC or a Plan under Title IV of
ERISA.
<PAGE>
(b) Neither the Borrower nor any member
of the Controlled Group is or ever has been obligated
to contribute to any Multiemployer Plan.
SECTION 4.07. Compliance with Laws;
Payment of Taxes. The Borrower and its Subsidiaries
are in compliance in all material respects with all
applicable laws, regulations and similar requirements
of governmental authorities, except for the matters
disclosed in Schedule 4.14 or where such compliance is
being contested in good faith through appropriate
proceedings. There have been filed on behalf of the
Borrower and its Subsidiaries all Federal, state and
local income, excise, property and other tax returns
which are required to be filed by them and all taxes
due pursuant to such returns or pursuant to any
assessment received by or on behalf of the Borrower or
any Subsidiary have been paid. The charges, accruals
and reserves on the books of the Borrower and its
Subsidiaries in respect of taxes or other governmental
charges are, in the opinion of the Borrower, adequate.
SECTION 4.08. Subsidiaries. Each of the
Borrower's Subsidiaries is a Person duly organized or
formed, as the case may be, validly existing and in
good standing, as applicable, under the laws of its
jurisdiction of incorporation, is duly qualified to
transact business in every jurisdiction where, by the
nature of its business, the failure to be so qualified
could reasonably be expected to have a Material
Adverse Effect, and has all corporate powers and all
governmental licenses, authorizations, consents and
approvals required to carry on its business as now
conducted, except for such licenses, authorizations,
consents and approvals the absence of which would not
reasonably be expected to have a Material Adverse
Effect. The Borrower has no Subsidiaries except for
(i) McWhorter Technologies Sales Corporation, a
foreign sales corporation organized under the laws of
Bermuda, and (ii) those Subsidiaries formed or
acquired after the Closing Date (including pursuant to
the terms of the Acquisition Agreement) in accordance
with the terms of this Agreement and described in a
written notice to the Agent from time to time which
accurately sets forth each such Subsidiary's complete
name and jurisdiction of incorporation.
SECTION 4.09. Investment Company Act.
Neither the Borrower nor any of its Subsidiaries is an
"investment company" within the meaning of the
Investment Company Act of 1940, as amended.
SECTION 4.10. Public Utility Holding
Company Act. Neither the Borrower nor any of its
Subsidiaries is a "holding company", or a "subsidiary
company" of a "holding company", or an "affiliate" of
a "holding company" or of a "subsidiary company"
<PAGE>
of a "holding company", as such terms are defined in the
Public Utility Holding Company Act of 1935, as
amended.
SECTION 4.11. Ownership of Property;
Liens. Each of the Borrower and its Consolidated
Subsidiaries has title to its properties reasonably
sufficient for the conduct of its business, and none
of such property is subject to any Lien except as
permitted in Section 5.09.
SECTION 4.12. No Default. Neither the
Borrower nor any of its Consolidated Subsidiaries is
in default under or with respect to any agreement,
instrument or undertaking to which it is a party or by
which it or any of its property is bound which could
have or cause a Material Adverse Effect. No Default
or Event of Default has occurred and is continuing.
SECTION 4.13. Full Disclosure. All
information heretofore furnished by the Borrower to
the Agent or any Bank for purposes of or in connection
with this Agreement or any transaction contemplated
hereby is, and all such information hereafter
furnished by the Borrower to the Agent or any Bank
will be true, accurate and complete in every material
respect or, with respect to matters which by their
nature can only be estimated, be based on reasonable
estimates, on the date as of which such information is
stated or certified. The Borrower has disclosed to
the Banks in writing any and all facts which could
reasonably be expected to have or cause a Material
Adverse Effect.
SECTION 4.14. Environmental Matters. (a)
Except for the matters disclosed in Schedule 4.14,
neither the Borrower nor any Subsidiary is subject to
any Environmental Liability which could have or cause
a Material Adverse Effect and neither the Borrower nor
any Subsidiary has been designated as a potentially
responsible party under CERCLA or under any state
statute similar to CERCLA. To the best knowledge of
the Borrower, none of the Properties has been
identified on any current or proposed (i) National
Priorities List under 40 C.F.R. Section 300, (ii) CERCLIS
list or (iii) any list arising from a state statute
similar to CERCLA.
(b) Except for the matters disclosed in
Schedule 4.14, no Hazardous Materials have been or are
being used, produced, manufactured, processed,
treated, recycled, generated, stored, disposed of,
managed or otherwise handled at, or shipped or
transported to or from the Properties or are otherwise
present at, on, in or under the Properties, or, to the
best of the knowledge of the Borrower, at or from any
adjacent site or facility, except for Hazardous
Materials, such as cleaning solvents, pesticides and
other materials used or otherwise handled, to the best
knowledge of the Borrower, in the ordinary
<PAGE>
course of business in compliance with all applicable
Environmental Requirements.
(c) Except for the matters disclosed in
Schedule 4.14, the Borrower, and each of its
Subsidiaries and Affiliates, has procured all
Environmental Authorizations necessary for the conduct
of its business, and, to the best knowledge of the
Borrower, is in compliance with all Environmental
Requirements in connection with the operation of the
Properties and the Borrower's, and each of its
Subsidiary's and Affiliate's, respective businesses.
SECTION 4.15. Capital Stock. All Capital
Stock, debentures, bonds, notes and all other
securities of the Borrower and its Subsidiaries
presently issued and outstanding are validly and
properly issued in accordance with all applicable
laws, including, but not limited to, the "Blue Sky"
laws of all applicable states and the federal
securities laws. The issued shares of Capital Stock
of the Borrower's Wholly Owned Subsidiaries are owned
by the Borrower free and clear of any Lien or adverse
claim. At least a majority of the issued shares of
capital stock of each of the Borrower's other
Subsidiaries (other than Wholly Owned Subsidiaries) is
owned by the Borrower, and all such shares owned by
the Borrower are free and clear of any Lien or adverse
claim, except as may be created pursuant to any Pledge
Agreement.
SECTION 4.16. Margin Stock. Neither the
Borrower nor any of its Subsidiaries is engaged
principally, or as one of its important activities, in
the business of purchasing or carrying any Margin
Stock, and no part of the proceeds of any Loan will be
used to purchase or carry any Margin Stock or to
extend credit to others for the purpose of purchasing
or carrying any Margin Stock, or be used for any
purpose which violates, or which is inconsistent with,
the provisions of Regulation X.
SECTION 4.17. Insolvency. After giving
effect to the execution and delivery of the Loan
Documents and the making of the Loans under this
Agreement, the Borrower will not be "insolvent,"
within the meaning of such term as defined in Section 101 of
Title 11 of the United States Code or Section 2 of the
Uniform Fraudulent Transfer Act, or any other
applicable state law pertaining to fraudulent
transfers, as each may be amended from time to time,
or be unable to pay its debts generally as such debts
become due, or have an unreasonably small capital to
engage in any business or transaction, whether current
or contemplated.
SECTION 4.18. Consent Order. The Borrower
is in full compliance with all of its obligations
under the Consent Order.
<PAGE>
ARTICLE V
COVENANTS
The Borrower agrees that, so long as any
Bank has any Commitment hereunder or any amount
payable hereunder or under any Note remains unpaid:
SECTION 5.01. Information. The Borrower
will deliver to each of the Banks:
(a) as soon as available and in any
event within 90 days after the end of each
Fiscal Year, a consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries as of
the end of such Fiscal Year and the related
consolidated statements of income, shareholders'
equity and cash flows for such Fiscal Year,
setting forth in each case in comparative form,
to the extent required by GAAP, the figures for
the previous fiscal year, all certified by Ernst
& Young or other independent public accountants
of nationally recognized standing, with such
certification to be free of exceptions and
qualifications not reasonably acceptable to the
Required Banks; provided, however, that an
exception or qualification (i) of the type
described in Section 1.02 shall not be subject
to the foregoing, and (ii) shall be deemed
acceptable to the Required Banks if no objection
has been made in writing to the Borrower by or
on behalf of the Required Banks within 30 days
after delivery of the relevant financial
statements pursuant hereto;
(b) as soon as available and in any
event within 45 days after the end of each of
the first 3 Fiscal Quarters of each Fiscal Year,
a consolidated balance sheet of the Borrower and
its Consolidated Subsidiaries as of the end of
such Fiscal Quarter and the related statement of
income and statement of cash flows for such
Fiscal Quarter and for the portion of the Fiscal
Year ended at the end of such Fiscal Quarter,
setting forth in each case in comparative form,
to the extent required by GAAP, the figures for
the corresponding Fiscal Quarter and the
corresponding portion of the previous Fiscal
Year, all certified (subject to normal year-end
adjustments and the absence of footnotes) as to
fairness of presentation, GAAP and consistency
by the chief financial officer or the chief
accounting officer of the Borrower;
(c) simultaneously with the delivery of
each set of financial statements referred to in
paragraphs (a) and (b)
<PAGE>
above, a certificate, substantially in the form of Exhibit F
(a "Compliance Certificate"), of the chief
financial officer or the chief accounting
officer of the Borrower (i) setting forth in
reasonable detail the calculations required to
establish whether the Borrower was in compliance
with the requirements of Sections 5.03 through
5.09 on the date of such financial statements
and (ii) stating whether any Default exists on
the date of such certificate and, if any Default
then exists, setting forth the details thereof
and the action which the Borrower is taking or
proposes to take with respect thereto;
(d) simultaneously with the delivery of
each set of annual financial statements referred
to in paragraph (a) above, a statement of the
firm of independent public accountants which
reported on such statements to the effect that
nothing has come to their attention to cause
them to believe that any Default under any of
Sections 5.03 through 5.09 existed on the date
of such financial statements;
(e) within 5 Domestic Business Days
after the Borrower becomes aware of the
occurrence of any Default, a certificate of the
chief financial officer or the chief accounting
officer of the Borrower setting forth the
details thereof and the action which the
Borrower is taking or proposes to take with
respect thereto;
(f) promptly upon the mailing thereof to
the shareholders of the Borrower generally,
copies of all financial statements, reports and
proxy statements so mailed;
(g) promptly upon the filing thereof,
copies of all registration statements (other
than the exhibits thereto and any registration
statements on Form S-8 or its equivalent) and
annual, quarterly or monthly reports which the
Borrower shall have filed with the Securities
and Exchange Commission;
(h) if and when any member of the
Controlled Group (i) gives or is required to
give notice to the PBGC of any "reportable
event" (as defined in Section 4043 of ERISA)
with respect to any Plan which might constitute
grounds for a termination of such Plan under
Title IV of ERISA, or knows that the plan
administrator of any Plan has given or is
required to give notice of any such reportable
event, a copy of the notice of such reportable
event given or required to be given to the PBGC;
(ii) receives notice of complete or partial
withdrawal liability under Title IV of ERISA, a
copy of such notice; or (iii) receives notice
from the PBGC under
<PAGE>
Title IV of ERISA of an
intent to terminate or appoint a trustee to
administer any Plan, a copy of such notice; and
(i) from time to time such additional
information regarding the financial position or
business of the Borrower and its Subsidiaries as
the Agent, at the request of any Bank, may
reasonably request.
SECTION 5.02. Inspection of Property,
Books and Records. The Borrower will (i) keep, and
cause each Subsidiary to keep, proper books of record
and account in which full, true and correct entries in
conformity with, and as required by GAAP (or GAAP's
equivalent in foreign jurisdictions), shall be made of
all dealings and transactions in relation to its
business and activities; and (ii) permit, and cause
each Subsidiary to permit, representatives of any Bank
at such Bank's expense prior to the occurrence of a
Default and at the Borrower's expense after the
occurrence of a Default to visit and inspect any of
their respective properties, to examine and make
abstracts from any of their respective books and
records and to discuss their respective affairs,
finances and accounts with their respective officers,
employees and independent public accountants. The
Borrower agrees to cooperate and assist in such visits
and inspections, in each case at such reasonable times
and as often as may reasonably be desired.
SECTION 5.03. Ratio of Consolidated Funded
Debt to EBITDA. At the end of each Fiscal Quarter,
commencing with the Fiscal Quarter ending October 31,
1997, the ratio of Consolidated Funded Debt (on such
date) to EBITDA (for the period of the 4 consecutive
Fiscal Quarters ending on such date; provided that
with respect to Subsidiaries acquired during such
period of 4 consecutive Fiscal Quarters then ending,
EBITDA of such Subsidiaries prior to such acquisition
which would otherwise be excluded under GAAP purchase
accounting treatment shall not be so excluded under
this Section 5.03) shall at all times be less than (i)
4.0 to 1.0 through and including the calculation
thereof as of July 31, 2000, and (ii) 3.5 to 1.0 for
each quarterly determination thereafter.
SECTION 5.04. [RESERVED]
SECTION 5.05. Restricted Payments. The
Borrower will not declare or make any Restricted
Payment.
SECTION 5.06. Fixed Charges Coverage. The
ratio of the Borrower's (i) Consolidated Net Income,
plus Consolidated Interest Expense and taxes to (ii)
Consolidated Interest Expense, shall at all times be
greater than or equal to 2.50 to 1.0,
<PAGE>
calculated quarterly on a consolidated basis for the period of
the 4 consecutive Fiscal Quarters ending on such date.
SECTION 5.07. Loans or Advances. Neither
the Borrower nor any of its Subsidiaries shall make
loans or advances to any Person except: (i) loans or
advances to employees not exceeding $1,000,000 in the
aggregate principal amount outstanding at any time, in
each case made in the ordinary course of business;
(ii) deposits required by government agencies, public
utilities, landlords or vendors or to secure payment
of worker's compensation, unemployment insurance or
similar obligations, in each case incurred in the
ordinary course of business; and (iii) loans or
advances to Subsidiaries which timely become and
thereafter remain Guarantors pursuant to Section 5.24;
and (iv) loans or advances made by the Borrower to
Subsidiaries which timely become and thereafter remain
Eligible Foreign Subsidiaries pursuant to Section
5.25; provided that after giving effect to the making
of any loans, advances or deposits permitted by this
Section, the Borrower will be in full compliance with
all the provisions of this Agreement.
SECTION 5.08. Investments. Neither the
Borrower nor any of its Subsidiaries shall make
Investments in any Person except Investments (i) as of
the Closing Date (including minority Investments to be
made pursuant to the Acquisition Agreements not
exceeding $2,000,000 in the aggregate) listed on
Schedule 1.01(a), (ii) in Subsidiaries which timely
become and thereafter remain (A) Guarantors pursuant
to Section 5.24, or (B) Eligible First Tier Foreign
Subsidiaries pursuant to Section 5.25, (iii) in
Persons which do not timely become and thereafter
remain (A) Guarantors pursuant to Section 5.24, or (B)
Eligible First Tier Foreign Subsidiaries pursuant to
Section 5.25, provided that such Investments do not
exceed (x) from the Closing Date through and including
January 29, 1998, $25,000,000 in the aggregate, or (y)
after January 29, 1998, the greater of $20,000,000 or
20% of Stockholder's Equity, (iv) as permitted by
Section 5.07 and (v) in (A) direct obligations of the
United States Government maturing within one year, (B)
certificates of deposit issued by a commercial bank
whose credit is reasonably satisfactory to the Agent,
(C) commercial paper rated A1 or the equivalent
thereof by Standard & Poor's Corporation or P1 or the
equivalent thereof by Moody's Investors Service, Inc.
and in either case maturing within 6 months after the
date of acquisition and/or (D) tender bonds the
payment of the principal of and interest on which is
fully supported by a letter of credit issued by a
United States bank whose long-term certificates of
deposit are rated at least AA or the equivalent
thereof by Standard & Poor's Corporation and Aa or the
equivalent thereof by Moody's Investors Service, Inc.;
provided, however, with respect to clauses (ii), (iii)
and (iv) in this Section 5.08, no Investments shall be
permitted to be
<PAGE>
made after the Closing Date (A) in the
event that a Default or Event of Default is in effect
or will be caused by such Investment, and (B) unless
the Borrower certifies to the Agent in writing prior
to making any such Investment the Borrower's pro forma
compliance with the financial covenants set forth in
Sections 5.03 and 5.06 of this Agreement, such written
certification and pro forma calculations to be in form
and substance satisfactory to the Agent in all
respects.
SECTION 5.09. Negative Pledge. Neither
the Borrower nor any Consolidated Subsidiary will
create, assume or suffer to exist any Lien on any
asset now owned or hereafter acquired by it, except:
(a) Liens existing on the date of this
Agreement securing Debt outstanding on the date
of this Agreement and as created pursuant to the
Acquisition Agreement, all as set forth on
Schedule 1.01(a) ;
(b) Liens in favor of the Agent pursuant
to any Pledge Agreement;
(c) any Lien existing on any asset of
any corporation at the time such corporation
becomes a Consolidated Subsidiary and not
created in contemplation of such event;
(d) any Lien on any asset securing Debt
incurred or assumed for the purpose of financing
all or any part of the cost of acquiring or
constructing such asset, provided that such Lien
attaches to such asset concurrently with or
within 18 months after the acquisition or
completion of construction thereof;
(e) any Lien on any asset of any
corporation existing at the time such
corporation is merged or consolidated with or
into the Borrower or a Consolidated Subsidiary
and not created in contemplation of such event;
(f) any Lien existing on any asset prior
to the acquisition thereof by the Borrower or a
Consolidated Subsidiary and not created in
contemplation of such acquisition;
(g) Liens securing Debt owing by any
Subsidiary to the Borrower;
(h) any Lien arising out of the
refinancing, extension, renewal or refunding of
any Debt secured by any Lien permitted by any of
the foregoing paragraphs of this Section,
provided that (i) such Debt is not secured by any
<PAGE>
additional assets, and (ii) the amount of
such Debt secured by any such Lien is not increased;
(i) Liens incidental to the conduct of
its business or the ownership of its assets
which (i) do not secure Debt and (ii) do not in
the aggregate materially detract from the value
of its assets or materially impair the use
thereof in the operation of its business;
(j) any Lien on Margin Stock; and
(k) Liens not otherwise permitted by the
foregoing paragraphs of this Section securing
Debt (other than indebtedness represented by the
Notes) in an aggregate principal amount at any
time outstanding not to exceed $7,000,000.
Provided Liens permitted by the foregoing paragraphs
(c) through (k) shall at no time secure Debt in an
aggregate amount greater than $15,000,000.
Notwithstanding any provision contained herein
to the contrary, in no event shall the Borrower or any
Subsidiary create, assume or suffer to exist any Lien
(except pursuant to any Pledge Agreement) on any
capital stock issued by any Foreign Subsidiary owned
by the Borrower or any other Subsidiary.
SECTION 5.10. Maintenance of Existence.
The Borrower shall, and shall cause (except pursuant
to Section 5.12(b)) each Subsidiary to maintain its
corporate existence and carry on its business in
substantially the same manner and in substantially the
same fields as such business is now carried on and
maintained.
SECTION 5.11. Subsidiary Dissolution. The
Borrower shall not permit any of its Subsidiaries to
dissolve or liquidate either in whole or in part or
redeem or retire any shares of its own stock, except
through corporate reorganization to the extent
permitted by Section 5.12.
SECTION 5.12. Consolidations, Mergers and
Sales of Assets. The Borrower will not, nor will it
permit any Subsidiary to, consolidate or merge with or
into, or sell, lease or otherwise transfer all or any
substantial part of its assets to, any other Person,
other than the Acquisition and other than sales of
inventory in the ordinary course of business; provided
that (a) the Borrower may merge with another Person if
(i) such Person was organized under the laws of the
United States of America or one of its states, (ii)
the Borrower is the corporation surviving such merger
and (iii) immediately after giving effect to such
<PAGE>
merger, no Default shall have occurred and be
continuing, (b) Subsidiaries of the Borrower may merge
with one another, or with and into the Borrower,
where the Borrower is the corporation surviving such
merger, and (c) the foregoing limitation on the sale,
lease or other transfer of assets shall not prohibit,
during any Fiscal Quarter, a transfer of assets (in a
single transaction or in a series of related
transactions) unless the aggregate assets to be so
transferred, when combined with all other assets
transferred during such Fiscal Year constituted more
than 20% of Consolidated Total Assets at the end of
the immediately preceding Fiscal Year; provided,
however, in no event shall the book value of
Consolidated Total Assets be less than $150,000,000 at
any time.
SECTION 5.13. Use of Proceeds. The
proceeds of the Loans shall be used by the Borrower
for the Acquisition, other Investments (subject to
Section 5.08) and general corporate purposes. No
portion of the proceeds of the Loans will be used by
the Borrower or any Subsidiary (i) in connection with,
whether directly or indirectly, any tender offer for,
or other acquisition of, more than 5% of the
outstanding stock of any corporation with a view
towards obtaining control of such other corporation,
other than in a negotiated transaction for which the
prior effective written consent or approval to such
acquisition has been obtained by the Borrower from the
board of directors or equivalent governing body of the
acquiree, (ii) directly or indirectly, for the
purpose, whether immediate, incidental or ultimate, of
purchasing or carrying any Margin Stock, or (iii) for
any purpose in violation of any applicable law or
regulation.
SECTION 5.14. Compliance with Laws;
Payment of Taxes. The Borrower will comply, and will
cause each of its Subsidiaries and each member of the
Controlled Group to comply, with applicable laws
(including but not limited to ERISA), regulations and
similar requirements of governmental authorities
(including but not limited to PBGC), except where the
necessity of such compliance is being contested in
good faith through appropriate proceedings. The
Borrower will, and will cause each of its Subsidiaries
to, pay promptly when due all taxes, assessments,
governmental charges, claims for labor, supplies, rent
and other obligations which, if unpaid, might become a
lien against the property of the Borrower or any
Subsidiary, except liabilities being contested in good
faith and against which the Borrower will set up
adequate reserves in accordance with GAAP.
SECTION 5.15. Insurance. The Borrower
will maintain, and will cause each of its Subsidiaries
to maintain (either in the name of the Borrower or in
such Subsidiary's own name), with financially sound
and reputable insurance companies, insurance on all
its property in at least such amounts and against at least
<PAGE>
such risks as are usually insured against in the
same general area by companies of established repute
engaged in the same or similar business.
SECTION 5.16. Change in Fiscal Year. The
Borrower will not change its Fiscal Year.
SECTION 5.17. Maintenance of Property.
The Borrower shall, and shall cause each Subsidiary
to, maintain all of its properties and assets in good
condition, repair and working order, ordinary wear and
tear excepted.
SECTION 5.18. Environmental Notices.
Except for the matters described in Schedule 4.14, the
Borrower shall furnish to the Banks and the Agent
prompt written notice of all material Environmental
Liabilities, Environmental Notices and Environmental
Judgments and Orders and pending, threatened in
writing or anticipated Environmental Proceedings
relating to the Borrower or to the Properties.
SECTION 5.19. Environmental Matters. The
Borrower and its Subsidiaries will not, and will not
permit any Third Party to, use, produce, manufacture,
process, treat, recycle, generate, store, dispose of,
manage at, or otherwise handle, or ship or transport
to or from the Properties any Hazardous Materials
except for Hazardous Materials such as cleaning
solvents, pesticides and other similar materials used,
produced, manufactured, processed, treated, recycled,
generated, stored, disposed, managed, or otherwise
handled in the ordinary course of business, to the
best knowledge of the Borrower, in compliance with all
applicable Environmental Requirements.
SECTION 5.20. Environmental Release. The
Borrower agrees that upon the occurrence of an
Environmental Release at or on any of the Properties
it will act immediately to investigate the extent of,
and to take appropriate remedial action with respect
to such Environmental Release, whether or not ordered
or otherwise directed to do so by any Environmental
Authority.
SECTION 5.21. [RESERVED].
SECTION 5.22. Transactions with
Affiliates. Neither the Borrower nor any of its
Subsidiaries shall enter into, or be a party to, any
material transaction with any Affiliate of the
Borrower or such Subsidiary (which Affiliate is not
the Borrower or a Subsidiary), except as permitted by
law and in the ordinary course of business and
pursuant to reasonable terms which are no less
favorable to Borrower or such Subsidiary than would be
obtained in a comparable arm's length transaction with
a Person which is not an Affiliate. Upon request of
the Agent, the terms
<PAGE>
of any such agreement shall be disclosed in reasonable
detail to the Agent.
SECTION 5.23. Compliance with Consent
Order. The Borrower shall comply with all of its
obligations under the Consent Order.
SECTION 5.24. Domestic Subsidiaries to
Become Guarantors. (a) Upon the acquisition or
creation of any Domestic Subsidiary, then within 20
Domestic Business Days thereafter, such Domestic
Subsidiary must become a Guarantor by (x) executing
and delivering to the Agent a Limited Guaranty, (y)
delivering to the Agent an opinion of counsel to such
Domestic Subsidiary substantially in the form of
Exhibit B, but limited to such Domestic Subsidiary,
and (z) delivering to the Agent documents pertaining
to such Domestic Subsidiary reasonably requested by
the Agent of the types described in paragraph (f) of
Section 3.01.
(b) Upon the acquisition or creation of any
Foreign Subsidiary (and upon the Closing Date with
respect to McWhorter Technologies Sales Corporation),
then within 20 Foreign Currency Business Days
thereafter, such Foreign Subsidiary must become a
Guarantor by (x) executing and delivering to the Agent
a Limited Guaranty, (y) delivering to the Agent an
opinion of counsel to such Foreign Subsidiary
substantially in the form of Exhibit B, but limited to
such Foreign Subsidiary, and (z) delivering to the
Agent documents pertaining to such Foreign Subsidiary
reasonably requested by the Agent of the types
described in paragraph (f) of Section 3.01; provided,
however, in the event that counsel to such Foreign
Subsidiary determines, and tenders to the Agent its
legal opinion with respect thereto, that the execution
and delivery of such Limited Guaranty would have
adverse tax consequences under Section 956 of the Code
(and any successor statute), then, in such event, such
Foreign Subsidiary shall not be required to execute
and deliver such Limited Guaranty.
SECTION 5.25. Capital Stock and Promissory
Notes of Foreign Subsidiaries to Be Pledged. Upon the
acquisition or creation of a Foreign Subsidiary,
within 20 Euro-Dollar Business Days thereafter:
(i) if such Foreign Subsidiary is a First
Tier Foreign Subsidiary (or a Second Tier
Foreign Subsidiary owned by a Domestic
Subsidiary), the Borrower (or such Domestic
Subsidiary) shall (A) execute and deliver to the
Agent a Pledge Agreement satisfactory to the
Banks in all respects whereby the Pledged Note
and 65% of the issued and outstanding capital
stock of such Foreign Subsidiary (or such lesser
percentage equal to all of such capital stock
<PAGE>
owned by the Borrower or such Domestic
Subsidiary) shall be pledged to the Agent, and
(B) deliver to the Agent (1) the Pledged Note
and all original stock certificates evidencing
such pledged capital stock so pledged pursuant
to such Pledge Agreement, (2) an opinion of
counsel to the Borrower (or such Domestic
Subsidiary) and such First Tier Foreign
Subsidiary substantially in the form of Exhibit
B, but limited to the aforementioned pledge
agreements, and (3) documents pertaining to the
Borrower (or such Domestic Subsidiary) and such
First Tier Foreign Subsidiary as reasonably
requested by the Agent of the types described in
paragraph (f) of Section 3.01;
(ii) if such Foreign Subsidiary is a
Second Tier Foreign Subsidiary, the Borrower
shall (A) execute and deliver to the Agent a
Pledge Agreement satisfactory to the Banks in
all respects (excluding therefrom provisions
which apply solely to the pledge of capital
stock) whereby the Pledged Note shall be pledged
to the Agent, and (B) deliver to the Agent (1)
the Pledged Note, (2) an opinion of counsel to
the Borrower and such Second Tier Foreign
Subsidiary substantially in the form of Exhibit
B, but limited to the aforementioned pledge
agreement, and (3) documents pertaining to the
Borrower and such Second Tier Foreign Subsidiary
as reasonably requested by the Agent of the
types described in paragraph (f) of Section
3.01; and
(iii) in lieu of the security provided in
clauses (i) and (ii) of this Section above, the
Borrower shall provide the Agent, for the
benefit of the Banks, with further assurances or
guarantees comparable to those set forth in
clause (i) of this Section above, which further
assurances or guarantees shall be satisfactory
to the Agent and the Banks in their sole
discretion.
ARTICLE VI
DEFAULTS
SECTION 6.01. Events of Default. If one
or more of the following events ("Events of Default")
shall have occurred and be continuing:
(a) the Borrower shall fail to pay when
due any principal of any Loan or shall fail to
pay any interest on any Loan within 5 Domestic
Business Days after such interest shall become
due, or shall fail to pay any fee or other
amount payable hereunder within 5 Domestic
Business Days after such fee or other amount
becomes due; or
<PAGE>
(b) the Borrower shall fail to observe
or perform any covenant contained in Sections
5.01(e), 5.02(ii), 5.03 through and including
5.09, 5.12, 5.24 and 5.25; or
(c) the Borrower shall fail to observe
or perform any covenant or agreement contained
or incorporated by reference in this Agreement
(other than those covered by paragraph (a) or
(b) above) or the Borrower, any Subsidiary or
any Guarantor shall fail to observe or perform
any covenant or agreement contained in any Loan
Document and such failure shall not have been
cured within 30 days after the earlier to occur
of (i) written notice thereof has been given to
the Borrower, such Subsidiary, or such the
Guarantor, as applicable, by the Agent at the
request of any Bank or (ii) the Borrower, any
Subsidiary or any Guarantor, as applicable,
otherwise becomes aware of any such failure; or
(d) any representation, warranty,
certification or statement made by the Borrower
in Article IV of this Agreement or by the
Borrower, any Subsidiary or any Guarantor in any
Loan Document, certificate, financial statement
or other document delivered pursuant to this
Agreement, respectively, shall prove to have
been incorrect or misleading in any material
respect when made (or deemed made); or
(e) the Borrower or any Subsidiary shall
fail to make any payment in respect of Debt
outstanding in an aggregate principal amount in
excess of $5,000,000 (other than the Notes) when
due or within any applicable grace period; or
(f) any event or condition shall occur
which results in the acceleration of the
maturity of Debt outstanding of the Borrower or
any Subsidiary in an aggregate principal amount
in excess of $5,000,000 (including, without
limitation, any required mandatory prepayment or
"put" of such Debt to the Borrower or any
Subsidiary) or enables (or, with the giving of
notice or lapse of time or both, would enable)
the holders of such Debt or commitment or any
Person acting on such holders' behalf to
accelerate the maturity thereof or terminate any
such commitment (including, without limitation,
any required mandatory prepayment or "put" of
such Debt to the Borrower or any Subsidiary); or
(g) the Borrower or any Subsidiary shall
commence a voluntary case or other proceeding
seeking liquidation, reorganization or other
relief with respect to itself or its debts under
any bankruptcy, insolvency or other similar law
now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator,
custodian or other similar
<PAGE>
official of it or any substantial part of its property,
or shall consent to any such relief or to the appointment
of or taking possession by any such official in
an involuntary case or other proceeding
commenced against it, or shall make a general
assignment for the benefit of creditors, or
shall fail generally to pay its debts as they
become due, or shall take any corporate action
to authorize any of the foregoing; or
(h) an involuntary case or other
proceeding shall be commenced against the
Borrower or any Subsidiary seeking liquidation,
reorganization or other relief with respect to
it or its debts under any bankruptcy, insolvency
or other similar law now or hereafter in effect
or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar
official of it or any substantial part of its
property, and such involuntary case or other
proceeding shall remain undismissed and unstayed
for a period of 60 days; or an order for relief
shall be entered against the Borrower or any
Subsidiary under the federal bankruptcy laws as
now or hereafter in effect; or
(i) the Borrower or any member of the
Controlled Group shall fail to pay when due any
material amount which it shall have become
liable to pay to the PBGC or to a Plan under
Title IV of ERISA; or notice of intent to
terminate a Plan or Plans shall be filed under
Title IV of ERISA by the Borrower, any member of
the Controlled Group, any plan administrator or
any combination of the foregoing; or the PBGC
shall institute proceedings under Title IV of
ERISA to terminate or to cause a trustee to be
appointed to administer any such Plan or Plans
or a proceeding shall be instituted by a
fiduciary of any such Plan or Plans to enforce
Section 515 or 4219(c)(5) of ERISA and such
proceeding shall not have been dismissed within
30 days thereafter; or a condition shall exist
by reason of which the PBGC would be entitled to
obtain a decree adjudicating that any such Plan
or Plans must be terminated; or
(j) A judgment or judgments for the
payment of money in excess of the sum of
$5,000,000 in the aggregate for the Borrower or
any Subsidiary shall be entered against the
Borrower or any Subsidiary and the Borrower or
any Subsidiary shall not discharge the same in
accordance with its terms or procure a stay of
execution thereof within 30 days from the date
of entry thereof, and within said period of 30
days, or such longer period during which
execution of such judgment shall have been
stayed, appeal therefrom and cause the execution
thereof to be stayed during such appeal; or
<PAGE>
(k) a federal tax lien shall be filed
against the Borrower or any Subsidiary under
Section 6323 of the Code or a lien of the PBGC
shall be filed against the Borrower or any
Subsidiary under Section 4068 of ERISA and in
either case such lien shall remain undischarged
for a period of 25 days after the date of
filing; or
(l) (i) any Person (other than the
Borrower) 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) of 30% or more
of the outstanding shares of the voting stock of
the Borrower; or (ii) as of any date a majority
of the Board of Directors of the Borrower
consists of individuals who were not any one of
the following (A) directors of the Borrower as
of the corresponding date of the previous year,
(B) selected or nominated to become directors by
the Board of Directors of the Borrower of which
a majority consisted of individuals described in
clause (A), or (C) selected or nominated to
become directors by the Board of Directors of
the Borrower of which a majority consisted of
individuals described in clause (A) and
individuals described in clause (B); or
(m) the occurrence of any event, act,
occurrence, or condition which the Required
Banks determine either does or has a reasonable
probability of causing a Material Adverse
Effect.
then, and in every such event, (i) the Agent shall if
requested by the Required Banks, by notice to the
Borrower terminate the Commitments and they shall
thereupon terminate, (ii) any Bank may terminate its
obligation to fund a Money Market Loan in connection
with any relevant Money Market Quote, and (iii) the
Agent shall, if requested by the Required Banks, by
notice to the Borrower declare the Notes (together
with accrued interest thereon) to be, and the Notes
(including, without limitation, the Finnish Markka
Loan Note) shall thereupon become, immediately due and
payable without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by
the Borrower together with interest at the Default Rate
<PAGE>
accruing on the principal amount thereof from and
after the date of such Event of Default; provided that
if any Event of Default specified in paragraph (g) or
(h) above occurs with respect to the Borrower, without
any notice to the Borrower or any other act by the
Agent or the Banks, the Commitments shall thereupon
terminate and the Notes (together with accrued
interest thereon) shall become immediately due and
payable without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by
the Borrower together with interest thereon at the
Default Rate accruing on the principal amount thereof
from and after the date of such Event of Default.
Notwithstanding the foregoing, the Agent shall have
available to it all other remedies at law or equity,
and shall exercise any one or all of them at the
request of the Required Banks.
SECTION 6.02. Notice of Default. The
Agent shall give notice to the Borrower of any Default
under Section 6.01(c) promptly upon being requested to
do so by any Bank and shall thereupon notify all the
Banks thereof. Upon the request of the Required
Banks, the Agent shall promptly give the Borrower
notice of any Default under Section 6.01(m).
ARTICLE VII
THE AGENT
SECTION 7.01. Appointment; Powers and
Immunities. Each Bank hereby irrevocably appoints and
authorizes the Agent to act as its agent hereunder and
under the other Loan Documents with such powers as are
specifically delegated to the Agent by the terms
hereof and thereof, together with such other powers as
are reasonably incidental thereto. The Agent: (a)
shall have no duties or responsibilities except as
expressly set forth in this Agreement and the other
Loan Documents, and shall not by reason of this
Agreement or any other Loan Document be a trustee for
any Bank; (b) shall not be responsible to the Banks
for any recitals, statements, representations or
warranties contained in this Agreement or any other
Loan Document, or in any certificate or other document
referred to or provided for in, or received by any
Bank under, this Agreement or any other Loan Document,
or for the validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any
other Loan Document or any other document referred to
or provided for herein or therein or for any failure
by the Borrower to perform any of its obligations
hereunder or thereunder; (c) shall not be required to
initiate or conduct any litigation or collection
proceedings hereunder or under any other Loan Document
except to the extent requested by the Required Banks,
and then only on terms and conditions satisfactory to
the Agent, and (d) shall not be responsible for any
action taken or omitted to be taken by it hereunder or
under any other Loan Document or any other document or
instrument referred to or provided for herein or
therein or in connection herewith or therewith, except
for its own gross negligence or wilful misconduct.
The Agent may employ agents and attorneys-in-fact and
shall not be responsible for the negligence or
misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. The provisions
of this Article VII are solely for the benefit of the
Agent and the Banks and the
<PAGE>
Borrower shall not have any rights as a third party
beneficiary of any of the provisions hereof. In
performing its functions and duties under this Agreement
and under the other Loan Documents, the Agent shall act
solely as agent of the Banks and does not assume and shall
not be deemed to have assumed any obligation towards or relationship of
agency or trust with or for the Borrower. The duties
of the Agent shall be ministerial and administrative
in nature, and the Agent shall not have by reason of
this Agreement or any other Loan Document a fiduciary
relationship in respect of any Bank.
SECTION 7.02. Reliance by Agent. The
Agent shall be entitled to rely upon any
certification, notice or other communication
(including any thereof by telephone, telefax, telegram
or cable) believed by it to be genuine and correct and
to have been signed or sent by or on behalf of the
proper Person or Persons, and upon advice and
statements of legal counsel, independent accountants
or other experts selected by the Agent. As to any
matters not expressly provided for by this Agreement
or any other Loan Document, the Agent shall in all
cases be fully protected in acting, or in refraining
from acting, hereunder and thereunder in accordance
with instructions signed by the Required Banks, and
such instructions of the Required Banks in any action
taken or failure to act pursuant thereto shall be
binding on all of the Banks.
SECTION 7.03. Defaults. The Agent shall
not be deemed to have knowledge of the occurrence of a
Default or an Event of Default (other than the
nonpayment of principal of or interest on the Loans)
unless the Agent has received notice from a Bank or
the Borrower specifying such Default or Event of
Default and stating that such notice is a "Notice of
Default." In the event that the Agent receives such a
notice of the occurrence of a Default or an Event of
Default, the Agent shall give prompt notice thereof to
the Banks. The Agent shall give each Bank prompt
notice of each nonpayment of principal of or interest
on the Loans whether or not it has received any notice
of the occurrence of such nonpayment. The Agent shall
(subject to Section 9.06) take such action hereunder
with respect to such Default or Event of Default as
shall be directed by the Required Banks, provided
that, unless and until the Agent shall have received
such directions, the Agent may (but shall not be
obligated to) take such action, or refrain from taking
such action, with respect to such Default or Event of
Default as it shall deem advisable in the best
interests of the Banks.
SECTION 7.04. Rights of Agent as a Bank.
With respect to the Loans made by it, Wachovia in its
capacity as a Bank hereunder shall have the same
rights and powers hereunder as any other Bank and may
exercise the same as though it were not acting
<PAGE>
as the Agent, and the term "Bank" or "Banks" shall, unless
the context otherwise indicates, include Wachovia in
its individual capacity. The Agent may (without
having to account therefor to any Bank) accept
deposits from, lend money to and generally engage in
any kind of banking, trust or other business with the
Borrower (and any of its Affiliates) as if it were not
acting as the Agent, and the Agent may accept fees and
other consideration from the Borrower (in addition to
any agency fees and arrangement fees heretofore agreed
to between the Borrower and the Agent) for services in
connection with this Agreement or any other Loan
Document or otherwise without having to account for
the same to the Banks.
SECTION 7.05. Indemnification. Each Bank
severally agrees to indemnify the Agent, to the extent
the Agent shall not have been reimbursed by the
Borrower, ratably in accordance with its Commitment,
for any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs,
out-of-pocket expenses (including, without limitation,
reasonable counsel fees and disbursements) or
disbursements of any kind and 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 other Loan Document or any other
documents contemplated by or referred to herein or
therein or the transactions contemplated hereby or
thereby (excluding, unless an Event of Default has
occurred and is continuing, the normal administrative
costs and expenses incident to the performance of its
agency duties hereunder) or the enforcement of any of
the terms hereof or thereof or any such other
documents; provided, however that no Bank shall be
liable for any of the foregoing to the extent they
arise from the gross negligence or wilful misconduct
of the Agent. If any indemnity furnished to the Agent
for any purpose shall, in the opinion of the Agent, be
insufficient or become impaired, the Agent may call
for additional indemnity and cease, or not commence,
to do the acts indemnified against until such
additional indemnity is furnished.
SECTION 7.06 CONSEQUENTIAL DAMAGES. THE
AGENT SHALL NOT BE RESPONSIBLE OR LIABLE TO ANY BANK,
THE BORROWER OR ANY OTHER PERSON OR ENTITY FOR ANY
PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHICH MAY
BE ALLEGED AS A RESULT OF THIS AGREEMENT, THE OTHER
LOAN DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY.
SECTION 7.07. Payee of Note Treated as
Owner. The Agent may deem and treat the payee of any
Note as the owner thereof for all purposes hereof
unless and until a written notice of the assignment or
transfer thereof shall have been filed with the Agent
and the provisions of Section 9.08(c) have been
satisfied. Any requests, authority or consent of any Person who
<PAGE>
at the time of making such request or
giving such authority or consent is the holder of any
Note shall be conclusive and binding on any
subsequent holder, transferee or assignee of that Note
or of any Note or Notes issued in exchange therefor or
replacement thereof.
SECTION 7.08. Nonreliance on Agent and
Other Banks. Each Bank agrees that it has,
independently and without reliance on the Agent or any
other Bank, and based on such documents and
information as it has deemed appropriate, made its own
credit analysis of the Borrower and decision to enter
into this Agreement and that it will, independently
and without reliance upon the Agent or any other Bank,
and based on such documents and information as it
shall deem appropriate at the time, continue to make
its own analysis and decisions in taking or not taking
action under this Agreement or any of the other Loan
Documents. The Agent shall not be required to keep
itself informed as to the performance or observance by
the Borrower of this Agreement or any of the other
Loan Documents or any other document referred to or
provided for herein or therein or to inspect the
properties or books of the Borrower or any other
Person. Except for notices, reports and other
documents and information expressly required to be
furnished to the Banks by the Agent hereunder or under
the other Loan Documents, the Agent shall not have any
duty or responsibility to provide any Bank with any
credit or other information concerning the affairs,
financial condition or business of the Borrower or any
other Person (or any of their Affiliates) which may
come into the possession of the Agent.
SECTION 7.09. Failure to Act. Except for
action expressly required of the Agent hereunder or
under the other Loan Documents, the Agent shall in all
cases be fully justified in failing or refusing to act
hereunder and thereunder unless it shall receive
further assurances to its satisfaction by the Banks of
their indemnification obligations under Section 7.05
against any and all liability and expense which may be
incurred by the Agent by reason of taking, continuing
to take, or failing to take any such action.
SECTION 7.10. Resignation or Removal of
Agent. Subject to the appointment and acceptance of a
successor Agent as provided below, the Agent may
resign at any time by giving notice thereof to the
Banks and the Borrower and the Agent may be removed at
any time with or without cause by the Required Banks.
Upon any such resignation or removal, the Required
Banks shall have the right to appoint a successor
Agent. If no successor Agent shall have been so
appointed by the Required Banks and shall have
accepted such appointment within 30 days after the
retiring Agent's notice of resignation or the Required
Banks' removal of the retiring Agent, then the
retiring Agent may, on
<PAGE>
behalf of the Banks, appoint a
successor Agent. Any successor Agent shall be a bank
which has a combined capital and surplus of at least
$500,000,000. 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
hereunder. After any retiring Agent's resignation or
removal hereunder as Agent, the provisions of this
Article VII shall continue in effect for its benefit
in respect of any actions taken or omitted to be taken
by it while it was acting as the Agent hereunder.
ARTICLE VIII
CHANGE IN CIRCUMSTANCES; COMPENSATION
SECTION 8.01. Basis for Determining
Interest Rate Inadequate or Unfair. If on or prior to
the first day of any Interest Period:
(a) the Agent determines that deposits
in Dollars (in the applicable amounts) are not
being offered in the relevant market for such
Interest Period, or
(b) the Required Banks advise the Agent
that the London Interbank Offered Rate or IBOR,
as the case may be, as reasonably determined by
the Agent, will not adequately and fairly
reflect the cost to such Banks of funding Fixed
Rate Loans for such Interest Period,
the Agent shall forthwith give notice thereof to the
Borrower and the Banks, whereupon until the Agent
notifies in reasonable detail the Borrower that the
circumstances giving rise to such suspension no longer
exist, the obligations of the Banks to make Fixed Rate
Loans shall be suspended. After the Agent has
provided notice to the Borrower in connection with
this Section 8.01, unless the Borrower notifies the
Agent on or before the date of any such relevant Fixed
Rate Borrowing for which a Notice of Borrowing has
previously been given that it elects not to borrow on
such date, such Borrowing shall instead be made as a
Base Rate Borrowing.
SECTION 8.02. Illegality. If, after the
date hereof, the adoption of any applicable law, rule
or regulation, or any change in any applicable law,
rule or regulation, or any change in the
interpretation or administration thereof by any
governmental authority, central bank or comparable
agency charged with the interpretation or
administration thereof (any such
<PAGE>
agency being referred to as an "Authority" and any
such event being referred to as a "Change of Law"), or
compliance by any Bank (or its Lending Office) with any
request or directive (whether or not having the force of law)
of any Authority shall make it unlawful or impossible for any
Bank (or its Lending Office) to make, maintain or fund
its Fixed Rate Loans and such Bank shall so notify the
Agent, the Agent shall forthwith give notice thereof
in reasonable detail to the other Banks and the
Borrower, whereupon until such Bank notifies the
Borrower and the Agent that the circumstances giving
rise to such suspension no longer exist, the
obligation of such Bank to make Fixed Rate Loans, as
the case may be, shall be suspended. Before giving
any notice to the Agent pursuant to this Section, such
Bank shall designate a different Lending Office if
such designation will avoid the need for giving such
notice and will not, in the judgment of such Bank, be
otherwise disadvantageous to such Bank. If such Bank
shall reasonably determine that it may not lawfully
continue to maintain and fund any of its outstanding
Fixed Rate Loans, as the case may be, to maturity and
shall so specify in such notice, the Borrower shall
immediately prepay in full the then outstanding
principal amount of each Fixed Rate Loan, as the case
may be, of such Bank, together with accrued interest
thereon. Concurrently with prepaying each such Fixed
Rate Loan, as the case may be, the Borrower shall
borrow a Base Rate Loan in an equal principal amount
from such Bank (on which interest and principal shall
be payable contemporaneously with the related Fixed
Rate Loans, as the case may be, of the other Banks),
and such Bank shall make such a Base Rate Loan.
SECTION 8.03. Increased Cost and Reduced
Return. (a) If after the date hereof, a Change of Law
or compliance by any Bank (or its Lending Office) with
any request or directive (whether or not having the
force of law) of any Authority:
(i) shall subject any Bank (or its
Lending Office) to any tax, duty or other charge
with respect to its Loans, Notes, or its
obligation to make Loans, or shall change the
basis of taxation of payments to any Bank (or
its Lending Office) of the principal of or
interest on its Loans or any other amounts due
under this Agreement in respect of its Loans or
its obligation to make Loans (except for changes
in the rate of tax on the overall net income of
such Bank or its Lending Office or franchise
taxes imposed by the jurisdiction in which such
Bank's principal executive office or Lending
Office is located); or
(ii) shall impose, modify or deem
applicable any reserve, special deposit or
similar requirement (including, without
limitation, any such requirement imposed by the
Board of Governors of the Federal Reserve System, but
<PAGE>
excluding (A) with respect to any
Euro-Dollar Loan any such requirement included
in an applicable Euro-Dollar Reserve Percentage
and (B) with respect to any Foreign Currency
Loan any such requirement included in the
applicable Adjusted IBOR Rate) against assets
of, deposits with or for the account of, or
credit extended by, any Bank (or its Lending
Office); or
(iii) shall impose on any Bank (or its
Lending Office) or on the United States market
or any interbank market any other condition
affecting its Loans, Notes, or its obligation to
make Loans;
and the result of any of the foregoing is to increase
the cost to such Bank (or its Lending Office) of
making or maintaining any Loan, or to reduce the
amount of any sum received or receivable by such Bank
(or its Lending Office) under this Agreement or under
its Notes with respect thereto, by an amount
reasonably determined by such Bank to be material,
then, within 15 days after demand by such Bank (with a
copy to the Agent), the Borrower shall pay to such
Bank such additional amount or amounts as will
compensate such Bank for such increased cost or
reduction.
(b) If any Bank shall have determined that
after the date hereof the adoption of any applicable
law, rule or regulation regarding capital adequacy, or
any change therein, or any change in the
interpretation or administration thereof, or
compliance by any Bank (or its Lending Office) or any
Person controlling such Bank with any request or
directive regarding capital adequacy (whether or not
having the force of law) of any Authority, has or
would have the effect of reducing the rate of return
on such Bank's or such controlling Person's capital as
a consequence of its obligations hereunder to a level
below that which such Bank or such controlling Person
could have achieved but for such adoption, change or
compliance (taking into consideration such Bank's or
such controlling Person's policies with respect to
capital adequacy) by an amount reasonably determined
by such Bank or such controlling Person to be
material, then from time to time, within 15 days after
demand by such Bank or such controlling Person, the
Borrower shall pay to such Bank such additional amount
or amounts as will compensate such Bank or such
controlling Person for such reduction.
(c) Each Bank will promptly notify the
Borrower and the Agent of any event of which it has
knowledge, occurring after the date hereof, which will
entitle such Bank to compensation pursuant to this
Section and will designate a different Lending Office
if such designation will avoid the need for, or reduce
the amount of, such compensation and will not, in the judgment of
<PAGE>
such Bank, be otherwise disadvantageous to
such Bank. A certificate of any Bank claiming
compensation under this Section and setting forth in
reasonable detail the additional amount or amounts to
be paid to it hereunder shall constitute rebuttable
presumptive evidence of the amounts to be paid in the
absence of manifest error. In determining such
amount, such Bank may use any reasonable averaging and
attribution methods.
(d) The provisions of this Section 8.03
shall be applicable with respect to any Participant,
Assignee or other Transferee, and any calculations
required by such provisions shall be made based upon
the circumstances of such Participant, Assignee or
other Transferee and (ii) shall constitute a
continuing agreement and shall survive the termination
of this Agreement and the payment in full or
cancellation of the Notes.
SECTION 8.04. Base Rate Loans Substituted
for Fixed Rate Loans. If (i) the obligation of any
Bank to make or maintain any Fixed Rate Loans has been
suspended pursuant to Section 8.02 or (ii) any Bank
has demanded compensation under Section 8.03, and the
Borrower shall, by at least 5 Euro-Dollar Business
Days' prior notice to such Bank through the Agent,
have elected that the provisions of this Section shall
apply to such Bank, then, unless and until such Bank
notifies the Borrower that the circumstances giving
rise to such suspension or demand for compensation no
longer apply:
(a) all Loans which would otherwise be
made by such Bank as Fixed Rate Loans shall be
made instead either (A) as Base Rate Loans, (B)
if such suspension or demand for compensation
relates to Euro-Dollar Loans, but not to Foreign
Currency Loans, as Foreign Currency Loans, or
(C) if such demand for compensation relates to
Foreign Currency Loans, but not Euro-Dollar
Loans, as Euro-Dollar Loans, as the Borrower may
elect in the notice to such Bank through the
Agent referred to hereinabove (in all cases
interest and principal on such Loans shall be
payable contemporaneously with the related Fixed
Rate Loans of the other Banks), and
(b) after each of its Euro-Dollar Loans
or Foreign Currency Loans has been repaid, all
payments of principal which would otherwise be
applied to repay such Fixed Rate Loans shall be
applied to repay its Base Rate Loans instead.
SECTION 8.05. Compensation. Upon the
request of any Bank, delivered to the Borrower and the
Agent, the Borrower shall pay to such Bank such amount
or amounts as shall compensate such Bank for any loss,
cost or expense incurred by such Bank as a result of:
<PAGE>
(a) any payment or prepayment (pursuant
to Section 2.10, 2.11, 6.01 or otherwise) of a Fixed
Rate Loan on a date other than the last day of an
Interest Period for such Fixed Rate Loan; or
(b) any failure by the Borrower to
borrow a Fixed Rate Loan on the date for the Fixed
Rate Borrowing of which such Fixed Rate Loan is a part
specified in the applicable Notice of Borrowing
delivered pursuant to Section 2.02 or notification of
acceptance of Money Market Quotes pursuant to Section
2.03A(e) or 2.03B(e); or
(c) any failure by the Borrower to pay a
Foreign Currency Loan in the applicable Foreign
Currency;
such compensation to include, without limitation, as
applicable: (A) an amount equal to the excess, if
any, of (x) the amount of interest which would have
accrued on the amount so paid or prepaid or not
prepaid or borrowed for the period from the date of
such payment, prepayment or failure to prepay or
borrow to the last day of the then current Interest
Period for such Fixed Rate Loan (or, in the case of a
failure to prepay or borrow, the Interest Period for
such Fixed Rate Loan which would have commenced on the
date of such failure to prepay or borrow) at the
applicable rate of interest for such Fixed Rate Loan
provided for herein over (y) the amount of interest
(as reasonably determined by such Bank) such Bank
would have paid on (i) deposits in Dollars of
comparable amounts having terms comparable to such
period placed with it by leading banks in the London
interbank market (if such Fixed Rate Loan is a
Euro-Dollar Loan), or (ii) (A) any deposit in a
Foreign Currency of comparable amounts having terms
comparable to such period placed with it by leading
banks in the applicable interbank market for such
Foreign Currency (if such Fixed Rate Loan is a Foreign
Currency Loan); or (B) any such loss, cost or expense
incurred by such Bank in liquidating or closing out
any foreign currency contract undertaken by such Bank
in funding or maintaining such Fixed Rate Loan (if
such Fixed Rate Loan is a Foreign Currency Loan).
SECTION 8.06. RESERVED.
SECTION 8.07. Failure to Pay in Foreign
Currency or Finnish Markkas. If the Borrower is
unable for any reason to effect payment in a Foreign
Currency or Finnish markkas as required by this
Agreement or if the Borrower shall default in the
Foreign Currency or Finnish markkas, each Bank (or
Merita with respect to Finnish markkas) may, through
the Agent, require such payment to be made in Dollars
in the Dollar Equivalent amount of such payment.
Without duplication of any amounts paid under Section
8.05, in any case in which the Borrower shall make
<PAGE>
such payment in Dollars, the Borrower agrees to hold
the Banks harmless from any loss incurred by the Banks
arising from any change in the value of Dollars in
relation to such Foreign Currency or Finnish markkas
between the date such payment became due and the date
of payment thereof.
SECTION 8.08. Judgment Currency. If for
the purpose of obtaining judgment in any court or
enforcing any such judgment it is necessary to convert
any amount due in any Foreign Currency or Finnish
markkas into any other currency, the rate of exchange
used shall be the Agent's spot rate of exchange for
the purchase of the Foreign Currency or Finnish
markkas with such other currency at the close of
business on the Foreign Currency Business Day
preceding the date on which judgment is given or any
order for payment is made. The obligation of the
Borrower in respect of any amount due from it
hereunder shall, notwithstanding any judgment or order
for a liquidated sum or sums in respect of amounts due
hereunder or under any judgment or order in any other
currency or otherwise be discharged only to the extent
that on the Foreign Currency Business Day following
receipt by the Agent of any payment in a currency
other than the relevant Foreign Currency or Finnish
markkas the Agent is able (in accordance with normal
banking procedures) to purchase the relevant Foreign
Currency (or Finnish markkas) with such other
currency. If the amount of the relevant Foreign
Currency or Finnish markkas that the Agent is able to
purchase with such other currency is less than the
amount due in the relevant Foreign Currency or Finnish
markkas, notwithstanding any judgment or order, the
Borrower shall indemnify the Banks for the shortfall.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices. All notices,
requests and other communications to any party
hereunder shall be in writing (including bank wire,
telecopier or similar writing) and shall be given to
such party at its address or telecopier number set
forth on the signature pages hereof or such other
address or telecopier number as such party may
hereafter specify for the purpose by notice to each
other party. Each such notice, request or other
communication shall be effective (i) if given by
telecopier, when such telecopy is transmitted to the
telecopier number specified in this Section and the
appropriate confirmation is received, (ii) if given by
mail, 72 hours after such communication is deposited
in the mails with first class postage prepaid,
addressed as aforesaid or (iii) if given by any other
means, when delivered at the address specified in this
Section; provided that
<PAGE>
notices to the Agent under Article II or Article VIII
shall not be effective until received.
SECTION 9.02. No Waivers. No failure or
delay by the Agent or any Bank in exercising any
right, power or privilege hereunder or under any Note
or other Loan Document shall operate as a waiver
thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof
or the exercise of any other right, power or
privilege. The rights and remedies herein provided
shall be cumulative and not exclusive of any rights or
remedies provided by law.
SECTION 9.03. Expenses; Documentary Taxes.
The Borrower shall pay (i) all out-of-pocket expenses
of the Agent, including reasonable fees and
disbursements of special counsel for the Agent, in
connection with the preparation of this Agreement and
the other Loan Documents, any waiver or consent
hereunder or thereunder or any amendment hereof or
thereof or any Default or alleged Default hereunder or
thereunder, and (ii) if a Default occurs, all
out-of-pocket expenses incurred by the Agent and each
Bank, including fees and disbursements of counsel, in
connection with such Default and collection and other
enforcement proceedings resulting therefrom, including
out-of-pocket expenses incurred in enforcing this
Agreement and the other Loan Documents. The Borrower
shall indemnify the Agent and each Bank against any
transfer taxes, documentary taxes, assessments or
charges made by any Authority by reason of the
execution and delivery of this Agreement or the other
Loan Documents.
SECTION 9.04. Indemnification. The
Borrower shall indemnify the Agent, the Banks and each
affiliate thereof and their respective directors,
officers, employees and agents from, and hold each of
them harmless against, any and all losses,
liabilities, claims or damages to which any of them
may become subject, insofar as such losses,
liabilities, claims or damages arise out of or result
from any actual or proposed use by the Borrower of the
proceeds of any extension of credit by any Bank
hereunder or breach by the Borrower of this Agreement
or any other Loan Document or from any investigation,
litigation (including, without limitation, any actions
taken by the Agent or any of the Banks to enforce this
Agreement or any of the other Loan Documents) or other
proceeding (including, without limitation, any
threatened investigation or proceeding) relating to
the foregoing, and the Borrower shall reimburse the
Agent and each Bank, and each affiliate thereof and
their respective directors, officers, employees and
agents, upon demand for any expenses (including,
without limitation, legal fees) incurred in connection
with any such investigation or proceeding; but
excluding any such losses, liabilities, claims, damages or
<PAGE>
expenses incurred by reason of the gross
negligence or wilful misconduct of the Person to be
indemnified.
SECTION 9.05 Setoff; Sharing of Setoffs.
(a) The Borrower agrees that the Agent and each Bank
and each Affiliate of the Agent and each Bank shall
have a lien for all indebtedness and obligations owing
to them from the Borrower upon all deposits or deposit
accounts, of any kind, or any interest in any deposits
or deposit accounts thereof, now or hereafter pledged,
mortgaged, transferred or assigned to the Agent or any
such Bank or Affiliate or otherwise in the possession
or control of the Agent or any such Bank or Affiliate
for any purpose for the account or benefit of the
Borrower and including any balance of any deposit
account or of any credit of the Borrower with the
Agent or any such Bank or Affiliate, whether now
existing or hereafter established hereby authorizing
the Agent and each Bank or Affiliate at any time or
times with or without prior notice to apply such
balances or any part thereof to such of the
indebtedness and obligations owing by the Borrower to
the Banks and/or the Agent then past due and in such
amounts as they may elect, and whether or not the
collateral, if any, or the responsibility of other
Persons primarily, secondarily or otherwise liable may
be deemed adequate. For the purposes of this
paragraph, all remittances and property shall be
deemed to be in the possession of the Agent or any
such Bank or Affiliate as soon as the same may be put
in transit to it by mail or carrier or by other
bailee.
(b) Each Bank agrees that if it shall
(directly or through an Affiliate), by exercising any
right of setoff or counterclaim or otherwise, receive
payment of a proportion of the aggregate amount of
principal and interest owing with respect to any Note
held by it which is greater than the proportion
received by any other Bank in respect of the aggregate
amount of all principal and interest owing with
respect to such Note held by such other Bank, the Bank
receiving such proportionately greater payment shall
purchase such participations in the Notes held by the
other Banks owing to such other Banks, and such other
adjustments shall be made, as may be required so that
all such payments of principal and interest with
respect to the Notes held by the Banks owing to such
other Banks shall be shared by the Banks pro rata;
provided that (i) nothing in this Section shall impair
the right of any Bank or Affiliate thereof to exercise
any right of setoff or counterclaim it may have and to
apply the amount subject to such exercise to the
payment of indebtedness of the Borrower other than its
indebtedness under the Notes, and (ii) if all or any
portion of such payment received by the purchasing
Bank is thereafter recovered from such purchasing
Bank, such purchase from each other Bank shall be
rescinded and such other Bank shall repay to the
purchasing Bank the purchase
<PAGE>
price of such participation to the extent of such recovery together
with an amount equal to such other Bank's ratable
share (according to the proportion of (x) the amount
of such other Bank's required repayment to (y) the
total amount so recovered from the purchasing Bank) of
any interest or other amount paid or payable by the
purchasing Bank in respect of the total amount so
recovered. The Borrower agrees, to the fullest extent
it may effectively do so under applicable law, that
any holder of a participation in a Note, whether or
not acquired pursuant to the foregoing arrangements,
may exercise rights of setoff or counterclaim and
other rights with respect to such participation as
fully as if such holder of a participation were a
direct creditor of the Borrower in the amount of such
participation.
SECTION 9.06. Amendments and Waivers. (a)
Any provision of this Agreement, the Notes or any
other Loan Documents may be amended or waived if, but
only if, such amendment or waiver is in writing and is
signed by the Borrower and the Required Banks (and, if
the rights or duties of the Agent are affected
thereby, by the Agent); provided that, no such
amendment or waiver shall, unless signed by all Banks,
(i) change the Commitment of any Bank or subject any
Bank to any additional obligation, (ii) change the
principal of or rate of interest on any Loan or any
fees hereunder, (iii) change the date fixed for any
payment of principal of or interest on any Loan or any
fees hereunder, (iv) change the amount of principal,
interest or fees due on any date fixed for the payment
thereof, (v) change the percentage of the Commitments
or of the aggregate unpaid principal amount of the
Notes, or the percentage of Banks, which shall be
required for the Banks or any of them to take any
action under this Section or any other provision of
this Agreement, (vi) change the manner of application
of any payments made under this Agreement or the
Notes, (vii) release or substitute all or any
substantial part of the collateral (if any) held as
security for the Loans, or (viii) release or reduce
the liability of the obligor under any Guarantee given
to support payment of the Loans; provided, further,
that this Agreement and any of the other Loan
Documents may be amended to give effect (x) to any
increased fees, interest rates and/or margins, or (y)
to reduce or rescind any such increases, if such
amendment is in writing and is signed by the Borrower,
the Agent, and the Required Banks.
(b) The Borrower will not solicit,
request or negotiate for or with respect to any
proposed waiver or amendment of any of the provisions
of this Agreement unless each Bank shall be informed
thereof by the Borrower and shall be afforded an
opportunity of considering the same and shall be
supplied by the Borrower with sufficient information
to enable it to make an informed decision with respect
thereto. Executed or true and correct copies of any
waiver or consent effected pursuant to the
<PAGE>
provisions of this Agreement shall be delivered by the Borrower
to each Bank forthwith following the date on which the
same shall have been executed and delivered by the
requisite percentage of Banks. The Borrower will not,
directly or indirectly, pay or cause to be paid any
remuneration, whether by way of supplemental or
additional interest, fee or otherwise, to any Bank (in
its capacity as such) as consideration for or as an
inducement to the entering into by such Bank of any
waiver or amendment of any of the terms and provisions
of this Agreement unless such remuneration is
concurrently paid, on the same terms, ratably to all
such Banks.
SECTION 9.07. No Margin Stock Collateral.
Each of the Banks represents to the Agent and each of
the other Banks that it in good faith is not, directly
or indirectly (by negative pledge or otherwise),
relying upon any Margin Stock as collateral in the
extension or maintenance of the credit provided for in
this Agreement.
SECTION 9.08. Successors and Assigns. (a)
The provisions of this Agreement shall be binding upon
and inure to the benefit of the parties hereto and
their respective successors and assigns; provided that
the Borrower may not assign or otherwise transfer any
of its rights under this Agreement without the prior
written consent of the Agent and all of the Banks.
(b) Any Bank may at any time sell to one
or more Persons (each a "Participant") participating
interests in any Loan owing to such Bank, any Note
held by such Bank, any Commitment hereunder or any
other interest of such Bank hereunder. In the event
of any such sale by a Bank of a participating interest
to a Participant, such Bank's obligations under this
Agreement shall remain unchanged, such Bank shall
remain solely responsible for the performance thereof,
such Bank shall remain the holder of any such Note for
all purposes under this Agreement, and the Borrower
and the Agent shall continue to deal solely and
directly with such Bank in connection with such Bank's
rights and obligations under this Agreement. In no
event shall a Bank that sells a participation be
obligated to the Participant to take or refrain from
taking any action hereunder except that such Bank may
agree that it will not (except as provided below),
without the consent of the Participant, agree to (i)
the change of any date fixed for the payment of
principal of or interest on the related loan or loans,
(ii) the change of the amount of any principal,
interest or fees due on any date fixed for the payment
thereof with respect to the related loan or loans,
(iii) the change of the principal of the related loan
or loans, (iv) any change in the rate at which either
interest is payable thereon or (if the Participant is
entitled to any part thereof) fee is payable hereunder
from the rate at which the
<PAGE>
Participant is entitled to receive interest or fee
(as the case may be) in respect of such participation,
(v) the release or substitution of all or any substantial
part of the collateral (if any) held as security for the Loans, or
(vi) the release of any Guarantee given to support
payment of the Loans; provided that such Bank may
agree (x) to any increase in the fees, interest rates
and/or margins, or (y) to the reduction or rescission
of any such increases. Each Bank selling a
participating interest in any Loan having a term in
excess of 1 year, Note, Commitment or other interest
under this Agreement shall, within 10 Domestic
Business Days of such sale, provide the Borrower and
the Agent with written notification stating that such
sale has occurred and identifying the Participant and
the interest purchased by such Participant. The
Borrower agrees that each Participant shall be
entitled to the benefits of Article VIII with respect
to its participation in Loans outstanding from time to
time.
(c) Any Bank may at any time assign to
one or more banks or financial institutions (each an
"Assignee") all, or, in the case of its Syndicated
Loans and Commitments, a proportionate part of all of
its Syndicated Loans and Commitments, of its rights
and obligations under this Agreement, the Notes and
the other Loan Documents, and such Assignee shall
assume all such rights and obligations, pursuant to an
Assignment and Acceptance, executed by such Assignee,
such transferor Bank and the Agent (and, in the case
of an Assignee that is not then a Bank, by the
Borrower); provided that (i) no interest may be sold
by a Bank pursuant to this paragraph (c) unless the
Assignee shall agree to assume ratably equivalent
portions of the transferor Bank's Commitment, (ii) the
amount of the Commitment of the assigning Bank subject
to such assignment (determined as of the effective
date of the assignment) shall be equal to $5,000,000
(or any larger multiple of $1,000,000), (iii) without
the consent of the Borrower and the Agent, which
consent shall not be unreasonably withheld or delayed,
no interest may be sold by a Bank pursuant to this
paragraph (c) to any Assignee that is not then a Bank
or an Affiliate of a Bank, except during the
continuance of a Default or Event of Default, and (iv)
a Bank may not have more than 2 Assignees that are not
then Banks at any one time. Upon (A) execution of the
Assignment and Acceptance by such transferor Bank,
such Assignee, the Agent and (if applicable) the
Borrower, (B) delivery of an executed copy of the
Assignment and Acceptance to the Borrower and the
Agent, (C) payment by such Assignee to such transferor
Bank of an amount equal to the purchase price agreed
between such transferor Bank and such Assignee, and
(D) payment of a processing and recordation fee of
$2,500 to the Agent, such Assignee shall for all
purposes be a Bank party to this Agreement and shall
have all the rights and obligations of a Bank under
this Agreement to the same extent as if it were an
original party hereto with a Commitment as set forth in such
<PAGE>
instrument of assumption, and the transferor
Bank shall be released from its obligations hereunder
to a corresponding extent, and no further consent or
action by the Borrower, the Banks or the Agent shall
be required. Upon the consummation of any transfer to
an Assignee pursuant to this paragraph (c), the
transferor Bank, the Agent and the Borrower shall make
appropriate arrangements so that, if required, new
Notes are issued to such Assignee, and if applicable,
to the Assignor.
(d) Subject to the provisions of Section
9.09, the Borrower authorizes each Bank to disclose to
any Participant, Assignee or other transferee (each a
"Transferee") and any prospective Transferee any and
all financial information in such Bank's possession
concerning the Borrower which has been delivered to
such Bank by the Borrower pursuant to this Agreement
or which has been delivered to such Bank by the
Borrower in connection with such Bank's credit
evaluation prior to entering into this Agreement.
(e) No Transferee shall be entitled to
receive any greater payment under Section 8.03 than
the transferor Bank would have been entitled to
receive with respect to the rights transferred, unless
such transfer is made with the Borrower's prior
written consent or by reason of the provisions of
Section 8.02 or 8.03 requiring such Bank to designate
a different Lending Office under certain circumstances
or at a time when the circumstances giving rise to
such greater payment did not exist.
(f) Anything in this Section 9.08 to the
contrary notwithstanding, any Bank may assign and
pledge all or any portion of the Loans and/or
obligations owing to it to any Federal Reserve Bank or
the United States Treasury as collateral security
pursuant to Regulation A of the Board of Governors of
the Federal Reserve System and any Operating Circular
issued by such Federal Reserve Bank, provided that any
payment in respect of such assigned Loans and/or
obligations made by the Borrower to the assigning
and/or pledging Bank in accordance with the terms of
this Agreement shall satisfy the Borrower's
obligations hereunder in respect of such assigned
Loans and/or obligations to the extent of such
payment. No such assignment shall release the
assigning and/or pledging Bank from its obligations
hereunder.
SECTION 9.09. Confidentiality. Each Bank
agrees to exercise commercially reasonable efforts to
keep any information delivered or made available by
the Borrower to it which is clearly indicated to be
confidential information, confidential from anyone
other than persons employed or retained by such Bank
who are or are expected to become engaged in
evaluating, approving, structuring or administering
the Loans; provided, however that nothing herein shall
prevent any Bank from
<PAGE>
disclosing such information (i) to its Affiliates or any
other Bank, (ii) upon the order of any court or administrative
agency, (iii) upon the request or demand of any regulatory
agency or authority having jurisdiction over such Bank,
(iv) which has been publicly disclosed, (v) to the extent
reasonably required in connection with any litigation
to which the Agent, any Bank or their respective
Affiliates may be a party, (vi) to the extent
reasonably required in connection with the exercise of
any remedy hereunder, (vii) to such Bank's legal
counsel and independent auditors and (viii) to any
actual or proposed Participant, Assignee or other
Transferee of all or part of its rights hereunder
which has agreed in writing to be bound by the
provisions of this Section 9.09; provided, that,
should disclosure of any such confidential information
be required by virtue of clause (ii) of the
immediately preceding sentence, any relevant Bank
shall promptly notify the Borrower of same (unless
prohibited by such order or applicable law) so as to
allow the Borrower to seek a protective order or to
take any other appropriate action; provided, further,
that, no Bank shall be required to delay compliance
with any directive to disclose any such information so
as to allow the Borrower to effect any such action.
SECTION 9.10. Representation by Banks.
Each Bank hereby represents that it is a commercial
lender or financial institution which makes Loans in
the ordinary course of its business and that it will
make its Loans hereunder for its own account in the
ordinary course of such business; provided, however
that, subject to Section 9.08, the disposition of the
Note or Notes held by that Bank shall at all times be
within its exclusive control.
SECTION 9.11. Obligations Several. The
obligations of each Bank hereunder are several, and no
Bank shall be responsible for the obligations or
commitment of any other Bank hereunder. Nothing
contained in this Agreement and no action taken by the
Banks pursuant hereto shall be deemed to constitute
the Banks to be a partnership, an association, a joint
venture or any other kind of entity. The amounts
payable at any time hereunder to each Bank shall be a
separate and independent debt, and each Bank shall be
entitled to protect and enforce its rights arising out
of this Agreement or any other Loan Document and it
shall not be necessary for any other Bank to be joined
as an additional party in any proceeding for such
purpose.
SECTION 9.12. Georgia Law. This Agreement
and each Note shall be construed in accordance with
and governed by the law of the State of Georgia.
<PAGE>
SECTION 9.13. Severability. In case any
one or more of the provisions contained in this
Agreement, the Notes or any of the other Loan
Documents should be invalid, illegal or unenforceable
in any respect, the validity, legality and
enforceability of the remaining provisions contained
herein and therein shall not in any way be affected or
impaired thereby and shall be enforced to the greatest
extent permitted by law.
SECTION 9.14. Interest. In no event shall
the amount of interest due or payable hereunder or
under the Notes exceed the maximum rate of interest
allowed by applicable law, and in the event any such
payment is inadvertently made to any Bank by the
Borrower or inadvertently received by any Bank, then
such excess sum shall be credited as a payment of
principal, unless the Borrower shall notify such Bank
in writing that it elects to have such excess sum
returned forthwith. It is the express intent hereof
that the Borrower not pay and the Banks not receive,
directly or indirectly in any manner whatsoever,
interest in excess of that which may legally be paid
by the Borrower under applicable law.
SECTION 9.15. Interpretation. No
provision of this Agreement or any of the other Loan
Documents shall be construed against or interpreted to
the disadvantage of any party hereto by any court or
other governmental or judicial authority by reason of
such party having or being deemed to have structured
or dictated such provision.
SECTION 9.16. Waiver of Jury Trial;
Consent to Jurisdiction. THE BORROWER (A) AND EACH OF
THE BANKS AND THE AGENT IRREVOCABLY WAIVES ANY AND ALL
RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING
OUT OF THIS AGREEMENT, ANY OF THE OTHER LOAN
DOCUMENTS, OR ANY OF THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY, (B) SUBMITS TO THE NONEXCLUSIVE
PERSONAL JURISDICTION IN THE STATE OF GEORGIA, THE
COURTS THEREOF AND THE UNITED STATES DISTRICT COURTS
SITTING THEREIN, FOR THE ENFORCEMENT OF THIS
AGREEMENT, THE NOTES AND THE OTHER LOAN DOCUMENTS, (C)
WAIVES ANY AND ALL PERSONAL RIGHTS UNDER THE LAW OF
ANY JURISDICTION TO OBJECT ON ANY BASIS (INCLUDING,
WITHOUT LIMITATION, INCONVENIENCE OF FORUM) TO
JURISDICTION OR VENUE WITHIN THE STATE OF GEORGIA FOR
THE PURPOSE OF LITIGATION TO ENFORCE THIS AGREEMENT,
THE NOTES OR THE OTHER LOAN DOCUMENTS, AND (D) AGREES
THAT SERVICE OF PROCESS MAY BE MADE UPON IT IN THE
MANNER PRESCRIBED IN SECTION 9.01 FOR THE GIVING OF
NOTICE TO THE BORROWER. NOTHING HEREIN CONTAINED,
HOWEVER, SHALL PREVENT THE AGENT FROM BRINGING ANY
ACTION OR EXERCISING ANY RIGHTS AGAINST ANY SECURITY
AND AGAINST THE BORROWER PERSONALLY, AND AGAINST ANY
ASSETS OF THE BORROWER, WITHIN ANY OTHER STATE OR
JURISDICTION.
SECTION 9.17. Counterparts. This
Agreement may be signed in any number of counterparts,
each of which shall be an original, with the same
effect as if the signatures thereto and hereto were
upon the same instrument.
<PAGE>
IN WITNESS WHEREOF, the parties hereto
have caused this Agreement to be duly executed, under
seal, by their respective authorized officers as of
the day and year first above written.
McWHORTER TECHNOLOGIES, INC. (SEAL)
By:______________________________________
Louise M. Tonozzi-Frederick
Title: Chief Financial Officer
McWhorter Technologies, Inc.
400 East Cottage Place
Carpentersville, Illinois 60110
Attention: Louise M. Tonozzi-Frederick
Telecopier number: 847-428-8599
Confirmation number: 847-551-3205
<PAGE>
COMMITMENTS WACHOVIA BANK, N.A.,
as Agent and as a Bank (SEAL)
$35,000,000
By:__________________________________
Title:_______________________________
Lending Office Wachovia Bank, N.A.
70 W. Madison Street, Suite 2440
Chicago, Illinois 60602
Attention: Jim Kinoshita
Telecopier number: 312-853-0693
Confirmation number: 312-853-0458
<PAGE>
$20,000,000 THE FIRST NATIONAL BANK OF CHICAGO
(SEAL)
By:______________________________________
Title:___________________________________
Lending Office
The First National Bank of Chicago
One First National Plaza
Mail Suite 0173
Chicago, Illinois 60670-5791
Attention: Julia Bristow
Telecopier number: 312-732-1117
Confirmation number: 312-732-5927
<PAGE>
$20,000,000 BANK OF AMERICA (SEAL)
By:________________________________
Title:_____________________________
Lending Office
Bank of America
231 South LaSalle
6th Floor
Chicago, Illinois 60670
Telecopier number: 312-974-0761
Confirmation number: 312-828-4795
<PAGE>
$12,500,000 HARRIS BANK (SEAL)
By:___________________________________
Title:________________________________
Lending Office
Harris Bank
111 West Monroe Street
111-10 East
Chicago, Illinois 60603
Telecopier number: 312-461-2591
Confirmation number: 312-461-2272
<PAGE>
$12,500,000 THE NORTHERN TRUST COMPANY (SEAL)
By:_______________________________
Title:____________________________
Lending Office
The Northern Trust Company
50 South LaSalle Street
2nd Floor
Chicago, Illinois 60675
Telecopier number: 312-444-7028
Confirmation number: 312-444-3428
<PAGE>
$12,500,000 THE SAKURA BANK, LIMITED (SEAL)
By:__________________________________
Title:_______________________________
Lending Office
The Sakura Bank, Limited
227 West Monroe Street
Suite 4700
Chicago, Illinois 60606
Telecopier number: 312-332-5345
Confirmation number: 312-580-1461
<PAGE>
$12,500,000 MELLON BANK, N.A. (SEAL)
By:__________________________________
Title:_______________________________
Lending Office
Mellon Bank, N.A.
1 Mellon Bank Center
Room 4401
Pittsburgh, Pennsylvania 15258-001
Telecopier number: 412-234-8888
Confirmation number: 412-234-5420
<PAGE>
$12,500,000 MERITA BANK LTD,NEW YORK BRANCH (SEAL)
By:__________________________________
Title:_______________________________
Lending Office
Merita Bank Ltd, New York Branch
437 Madison Avenue
21st Floor
New York, New York 10022
Telecopier number: 212-318-9318
Confirmation number: 212-318-9300
<PAGE>
$12,500,000 THE BANK OF TOKYO-MITSUBISHI, LTD.,
CHICAGO BRANCH (SEAL)
By:_______________________________
Title:____________________________
Lending Office
The Bank of Tokyo-Mitsubishi, Ltd.,Chicago Branch
227 West Monroe Street
Suite 2300
Chicago, Illinois 60606
Telecopier number: 312-696-4530
Confirmation number: 312-696-4500
TOTAL COMMITMENTS:
$150,000,000.00
<PAGE>
EXHIBIT A-1
SYNDICATED DOLLAR NOTE
Atlanta, Georgia
July 30, 1997
For value received, McWHORTER TECHNOLOGIES, INC., a Delaware
corporation (the "Borrower"), promises to pay to the order of ___________
___________________________, a________________ (the "Bank"), for the
account of its Lending Office, the principal sum of________________________
and No/100 Dollars ($____________), or such lesser
amount as shall equal the unpaid principal amount of each Syndicated Loan made
by the Bank to the Borrower pursuant to the Credit Agreement referred to
below, on the dates and in the amounts provided in the Credit Agreement. The
Borrower promises to pay interest on the unpaid principal amount of this Note
on the dates and at the rate or rates provided for in the Credit Agreement
referred to below. Interest on any overdue principal of and, to the extent
permitted by law, overdue interest on the principal amount hereof shall bear
interest at the Default Rate, as provided for in the Credit Agreement. All
such payments of principal and interest shall be made in lawful money of the
United States in Federal or other immediately available funds at the office of
Wachovia Bank, N.A., 191 Peachtree Street, N.E., Atlanta, Georgia 30303-1757,
or such other address as may be specified from time to time pursuant to the
Credit Agreement.
All Syndicated Loans made by the Bank, the respective maturities
thereof, the interest rates from time to time applicable thereto, and all
repayments of the principal thereof shall be recorded by the Bank and, prior
to any transfer hereof, endorsed by the Bank on the schedule attached hereto,
or on a continuation of such schedule attached to and made a part hereof;
provided that the failure of the Bank to make any such recordation or
endorsement shall not affect the obligations of the Borrower hereunder or
under the Credit Agreement.
This Note is one of the Syndicated Dollar Notes referred to in the
Credit Agreement dated as of even date herewith among the Borrower, the Banks
listed on the signature pages thereof and Wachovia Bank, N.A., as Agent (as
the same may be amended and modified from time to time, the "Credit
Agreement"). Terms defined in the Credit Agreement are used herein with the
same meanings. Reference is made to the Credit Agreement for provisions for
the optional and mandatory
<PAGE>
prepayment and the repayment hereof and the acceleration of the maturity hereof.
IN WITNESS WHEREOF, the Borrower has caused this Note to be duly
executed, under seal, by its duly authorized officer as of the day and year
first above written.
McWHORTER TECHNOLOGIES, INC. (SEAL)
By:________________________________
Title:_____________________________
<PAGE>
Syndicated Dollar Note (cont'd)
<TABLE>
LOANS AND PAYMENTS OF PRINCIPAL
<CAPTION>
Base Rate Amount Amount of
or Euro- of Principal Maturity Notation
Date Dollar Loan Loan Repaid Date Made By
<S> <C> <C> <C> <C> <C>
</TABLE>
<PAGE>
EXHIBIT A-2
MONEY MARKET LOAN NOTE
Atlanta, Georgia
July 30, 1997
For value received, McWHORTER TECHNOLOGIES, INC., a Delaware
corporation (the "Borrower"), promises to pay to the order of_______________
_________________, a__________________________________(the "Bank"), for the
account of its Lending Office, the principal sum of ONE HUNDRED FIFTY MILLION
and No/100 Dollars ($150,000,000.00), or such lesser amount as shall equal the
unpaid principal amount of each Money Market Loan made by the Bank to the
Borrower pursuant to the Credit Agreement referred to below, on the dates and
in the amounts provided in the Credit Agreement. The Borrower promises to pay
interest on the unpaid principal amount of this Note on the dates and at the
rate or rates provided for in the Credit Agreement referred to below.
Interest on any overdue principal of and, to the extent permitted by law,
overdue interest on the principal amount hereof shall bear interest at the
Default Rate, as provided for in the Credit Agreement. All such payments of
principal and interest shall be made in lawful money of the United States in
Federal or other immediately available funds at the office of Wachovia Bank,
N.A., 191 Peachtree Street, N.E., Atlanta, Georgia 30303-1757, or such other
address as may be specified from time to time pursuant to the Credit
Agreement.
All Money Market Loans made by the Bank, the respective maturities
thereof, the interest rates from time to time applicable thereto, and all
repayments of the principal thereof shall be recorded by the Bank and, prior
to any transfer hereof, endorsed by the Bank on the schedule attached hereto,
or on a continuation of such schedule attached to and made a part hereof;
provided that the failure of the Bank to make any such recordation or
endorsement shall not affect the obligations of the Borrower hereunder or
under the Credit Agreement.
This Note is one of the Money Market Loan Notes referred to in the
Credit Agreement of even date herewith among the Borrower, the Banks listed on
the signature pages thereof and Wachovia Bank, N.A., as Agent (as the same
may be amended and modified from time to time, the "Credit Agreement"). Terms
defined in the Credit Agreement are used herein with the same meanings.
Reference is made to the Credit Agreement for provisions for the optional and
mandatory prepayment and the repayment hereof and the acceleration of the
maturity hereof.
<PAGE>
IN WITNESS WHEREOF, the Borrower has caused this Note to be duly
executed, under seal, by its duly authorized officer as of the day and year
first above written.
McWHORTER TECHNOLOGIES, INC. (SEAL)
By:_____________________________________
Title:__________________________________
<PAGE>
Money Market Loan Note (cont'd)
<TABLE>
LOANS AND PAYMENTS OF PRINCIPAL
<CAPTION>
Amount Amount of Stated
Interest of Principal Maturity Notation
Date Rate Loan Repaid Date Made By
<S> <C> <C> <C> <C> <C>
</TABLE>
<PAGE>
EXHIBIT A-3
FORM OF FOREIGN CURRENCY NOTE
Atlanta, Georgia
July 30, 1997
For value received, McWHORTER TECHNOLOGIES, INC., a Delaware
corporation (the "Borrower"), promises to pay to the order of
______________________, a ____________________ (the "Bank"), for the account of
its Lending Office, the outstanding principal amount of the Foreign Currency
Loans made by the Bank to the Borrower as Foreign Currency Loans pursuant to the
Credit Agreement referred to below, on the dates and in the amounts provided in
the Credit Agreement. The Borrower promises to pay interest on the unpaid
principal amount of this Note on the dates and at the rate or rates provided for
Foreign Currency Loans in the Credit Agreement. Interest on any overdue
principal of and, to the extent permitted by law, overdue interest on the
principal amount hereof shall bear interest at the Default Rate, as provided for
in the Credit Agreement. All such payments of principal and interest shall be
made in lawful money of the applicable Foreign Currency in immediately available
funds at the office of Wachovia Bank, N.A., 191 Peachtree Street, N.E., Atlanta,
Georgia 30303-1757, or such other address as may be specified from time to time
pursuant to the Credit Agreement.
All Foreign Currency Loans made by the Bank, the respective
maturities thereof, the interest rates from time to time applicable thereto, and
all repayments of the principal thereof shall be recorded by the Bank and, prior
to any transfer hereof, endorsed by the Bank on the schedule attached hereto, or
on a continuation of such schedule attached to and made a part hereof; provided
that the failure of the Bank to make any such recordation or endorsement shall
not affect the obligations of the Borrower hereunder or under the Credit
Agreement.
This Note is one of the Foreign Currency Notes referred to in the
Credit Agreement dated as of even date herewith among the Borrower and the Banks
listed on the signature pages thereof and Wachovia Bank, N.A., as Agent (as the
same may be amended and modified from time to time, the "Credit Agreement").
Terms defined in the Credit Agreement are used herein with the same meanings.
Reference is made to the Credit Agreement for provisions for the optional and
mandatory prepayment and the repayment hereof and the acceleration of the
maturity hereof.
<PAGE>
IN WITNESS WHEREOF, the Borrower has caused this Note to be duly
executed, under seal, by its duly authorized officer as of the day and year
first above written.
McWHORTER TECHNOLOGIES, INC. (SEAL)
By:___________________________________
Title:________________________________
<PAGE>
Foreign Currency Loan Note (cont'd)
<TABLE>
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
<CAPTION>
Principal
Amount of Maturity Principal
Loan and of Interest Amount Unpaid
Date Currency Period Paid Balance
<S> <C> <C> <C> <C>
</TABLE>
<PAGE>
EXHIBIT A-4
FORM OF FINNISH MARKKA LOAN NOTE
Atlanta, Georgia
July 30, 1997
For value received, McWHORTER TECHNOLOGIES, INC., a Delaware
corporation (the "Borrower"), promises to pay to the order of MERITA BANK LTD,
NEW YORK BRANCH (the "Bank"), for the account of its Lending Office, the
outstanding principal amount of the Finnish Markka Loans made by the Bank to the
Borrower as Finnish Markka Loans pursuant to the Credit Agreement referred to
below, on the dates and in the amounts provided in the Credit Agreement. The
Borrower promises to pay interest on the unpaid principal amount of this Note on
the dates and at the rate or rates provided for Finnish Markka Loans in the
Credit Agreement. Interest on any overdue principal of and, to the extent
permitted by law, overdue interest on the principal amount hereof shall bear
interest at the Default Rate, as provided for in the Credit Agreement. All such
payments of principal and interest shall be made in Finnish markkas in
immediately available funds pursuant to the written notification of Wachovia
Bank, N.A. as may be specified from time to time pursuant to the Credit
Agreement.
All Finnish Markka Loans made by the Bank, the respective
maturities thereof, the interest rates from time to time applicable thereto,
and all repayments of the principal thereof shall be recorded by the Bank and,
prior to any transfer hereof, endorsed by the Bank on the schedule attached
hereto, or on a continuation of such schedule attached to and made a part
hereof; provided that the failure of the Bank to make any such recordation or
endorsement shall not affect the obligations of the Borrower hereunder or
under the Credit Agreement.
This Note is the Finnish Markka Note referred to in the Credit
Agreement dated as of even date herewith among the Borrower and the Banks listed
on the signature pages thereof and Wachovia Bank, N.A., as Agent (as the same
may be amended and modified from time to time, the "Credit Agreement"). Terms
defined in the Credit Agreement are used herein with the same meanings.
Reference is made to the Credit Agreement for provisions for the optional and
mandatory prepayment and the repayment hereof and the acceleration of the
maturity hereof.
<PAGE>
IN WITNESS WHEREOF, the Borrower has caused this Note to be duly
executed, under seal, by its duly authorized officer as of the day and year
first above written.
McWHORTER TECHNOLOGIES, INC. (SEAL)
By:__________________________________
Title:_______________________________
<PAGE>
Finnish Markka Loan Note (cont'd)
<TABLE>
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
<CAPTION>
Principal Maturity Principal
Amount of of Interest Amount Unpaid
Date Loan Period Paid Balance
<S> <C> <C> <C> <C>
</TABLE>
<PAGE>
EXHIBIT B
OPINION OF
COUNSEL FOR THE BORROWER
[Dated as provided in Section
3.01 of the Credit Agreement]
To the Banks and the Agent
Referred to Below
c/o Wachovia Bank, N.A.,
as Agent
191 Peachtree Street, N.E.
Atlanta, Georgia 30303-1757
Attn: U.S. Corporate Group
Dear Sirs:
I am general counsel of McWhorter Technologies, Inc., ("MTI") a
Delaware corporation (the "Borrower") in connection with the Credit Agreement
(the "Credit Agreement") dated as of July 30, 1997, among MTI, the banks listed
on the signature pages thereof and Wachovia Bank, N.A., as Agent. Terms defined
in the Credit Agreement are used herein as therein defined.
I have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments and have conducted such
other investigations of fact and law as I have deemed necessary or advisable for
purposes of this opinion. I have assumed for purposes of my opinion set forth
below that the execution and delivery of the Credit Agreement by each Bank and
by the Agent have been duly authorized by each Bank and by the Agent.
Upon the basis of the foregoing, I am of the opinion that:
1. MTI is a corporation duly incorporated, validly existing and
in good standing under the laws of Delaware, and has all corporate powers
required to carry on its business as now conducted.
2. The execution, delivery and performance by the Borrower of
the Credit Agreement, the Notes, and the Acquisition Agreements (i) are
within the Borrower's corporate powers, (ii)
<PAGE>
have been duly authorized by all
necessary corporate action, (iii) require no action by or in respect of, or
filing with, any governmental body, agency or official, except [insert
appropriate exceptions pertaining to the Acquisition] (iv) do not contravene,
or constitute a default under, any provision of applicable law or regulation
or of the certificate of incorporation or by-laws of the Borrower or of any
agreement, judgment, injunction, order, decree or other instrument which to my
knowledge is binding upon the Borrower and (v) to my knowledge, except as
provided in the Credit Agreement, do not result in the creation or imposition
of any Lien on any asset of the Borrower or any of its Subsidiaries.
3. Each of the Credit Agreement and the Acquisition Agreements
constitutes a valid and binding agreement of the Borrower, enforceable against
the Borrower in accordance with its terms, and the Notes constitute valid and
binding obligations of the Borrower, enforceable in accordance with their
respective terms, except as such enforceability may be limited by: (i)
bankruptcy, insolvency or similar laws affecting the enforcement of creditors'
rights generally and (ii) general principles of equity.
4. To my knowledge, there is no action, suit or proceeding
pending, or threatened, against or affecting the Borrower before any court or
arbitrator or any governmental body, agency or official in which there is a
reasonable possibility of an adverse decision which could materially
adversely affect the business, financial position or consolidated results of
operations of the Borrower or which in any manner questions the validity or
enforceability of the Credit Agreement or any Note or the Agreement, or the
Acquisition Agreements.
5. MTI is not an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
6. MTI is not a "holding company", or a "subsidiary company" of a
"holding company", or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company", as such terms are defined in the Public Utility
Holding Company Act of 1935, as amended.
I am qualified to practice in the State of Illinois and do not
purport to be an expert on any laws other than the laws of the United States and
the State of Illinois and Delaware Corporate Law and this opinion is rendered
only with respect to such laws. I have made no independent investigation of
the laws of any other jurisdiction.
This opinion is delivered to you in connection with the
transaction referenced above and may only be relied upon by you, any Assignee,
Participant or other Transferee under the Credit
<PAGE>
Agreement, and Jones, Day, Reavis & Pogue without my prior written consent.
Very truly yours,
<PAGE>
EXHIBIT C
OPINION OF
JONES, DAY, REAVIS & POGUE, SPECIAL COUNSEL
FOR THE AGENT
[Dated as provided in Section
3.01 of the Credit Agreement]
To the Banks and the Agent
Referred to Below
c/o Wachovia Bank, N.A.,
as Agent
191 Peachtree Street, N.E.
Atlanta, Georgia 30303-1757
Attn: U.S. Corporate Group
Dear Sirs:
We have participated in the preparation of the Credit Agreement
(the "Credit Agreement") dated as of July 30, 1997, among McWhorter
Technologies, Inc. a Delaware corporation (the "Borrower"), the banks listed
on the signature pages thereof (the "Banks") and Wachovia Bank, N.A., as
Agent (the "Agent"), and have acted as special counsel for the Agent for the
purpose of rendering this opinion pursuant to Section 3.01(d) of the Credit
Agreement. Terms defined in the Credit Agreement are used herein as therein
defined.
This opinion letter is limited by, and is in accordance with, the
January 1, 1992 edition of the Interpretive Standards applicable to Legal
Opinions to Third Parties in Corporate Transactions adopted by the Legal Opinion
Committee of the Corporate and Banking Law Section of the State Bar of Georgia
which Interpretive Standards are incorporated herein by this reference.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments and have conducted such
other investigations of fact and law as we have deemed necessary or advisable
for purposes of this opinion.
Upon the basis of the foregoing, and assuming the due
authorization, execution and delivery of the Credit Agreement and each of the
Notes by or on behalf of the Borrower, we are of the
<PAGE>
opinion that the Credit
Agreement constitutes a valid and binding agreement of the Borrower and each
Note constitutes valid and binding obligations of the Borrower, in each case
enforceable in accordance with its terms.
In giving the foregoing opinion, we express no opinion as to the effect
(if any) of any law of any jurisdiction except the State of Georgia. We express
no opinion as to the effect of the compliance or noncompliance of the Agent or
any of the Banks with any state or federal laws or regulations applicable to the
Agent or any of the Banks by reason of the legal or regulatory status or the
nature of the business of the Agent or any of the Banks.
This opinion is delivered to you in connection with the transaction
referenced above and may only be relied upon by you and any Assignee,
Participant or other Transferee under the Credit Agreement without our prior
written consent.
Very truly yours,
<PAGE>
EXHIBIT D
ASSIGNMENT AND ACCEPTANCE
Dated______________, 19___
Reference is made to the Credit Agreement dated as of July 30,
1997 (together with all amendments and modifications thereto, the "Credit
Agreement") among McWHORTER TECHNOLOGIES, INC., a Delaware corporation, the
Banks parties to the Credit Agreement and Wachovia Bank, N.A., as Agent.
Terms defined in the Credit Agreement are used herein with the same meaning.
_____________________ (the "Assignor") and____________________________ (the
"Assignee") agree as follows:
1. The Assignor hereby sells and assigns to the Assignee,
without recourse to the Assignor, and the Assignee hereby purchases and
assumes from the Assignor, a % interest in and to all of the Assignor's
rights and obligations under the Credit Agreement as of the Effective Date
(as defined below) (including, without limitation, a ______% interest (which
on the Effective Date hereof is $____________) in the Assignor's Commitment
and a _______ interest (which on the Effective Date hereof is $___________ )
in the Syndicated Loans [and Money Market Loans] owing to the Assignor and a
________% interest in the Notes held by the Assignor (which on the Effective
Date hereof is $______________).
2. The Assignor (i) makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of the Credit Agreement or any other instrument or document furnished pursuant
thereto, other than that it is the legal and beneficial owner of the interest
being assigned by it hereunder, that such interest is free and clear of any
adverse claim and that as of the date hereof its Commitment (without giving
effect to assignments thereof which have not yet become effective) is
$_____________ and the aggregate outstanding principal amount of the
Syndicated Loans [and Money Market Loans] owing to it (without giving effect
to assignments thereof which have not yet become effective) is $____________;
(ii) 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 the Credit
Agreement or any other instrument or document furnished pursuant thereto;
and (iii) attaches the Notes referred to in paragraph 1 above and requests
that the Agent exchange such Notes for new Notes as follows: [a Syndicated
Dollar Note dated______________,_____ in the principal amount of $_________
<PAGE>
payable to the order of the Assignee,][a Foreign Currency Note dated
________________,_____ in the principal amount of $_______________ payable to
the order of the Assignee] [and a Money Market Loan Note dated_________,____
in the principal amount of $________________payable to the order of the
Assignee]. Should the Assignor retain an interest in the Loans or the
Commitments, replacement Notes of the type described in the immediately
preceding sentence shall be provided to the Assignor in the principal amount
equal to that portion of the Commitments and/or Loans retained by the
Assignor.
3. The Assignee (i) confirms that it has received a copy of the
Credit Agreement, together with copies of the financial statements referred to
in Section 4.04(a) thereof (or any more recent financial statements of the
Borrower delivered pursuant to Section 5.01(a) or (b) thereof) and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Acceptance; (ii) agrees
that it will, independently and without reliance upon the Agent, the Assignor or
any other Bank and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Credit Agreement; (iii) confirms that it is a bank
or financial institution; (iv) appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers under the Credit
Agreement as are delegated to the Agent by the terms thereof, together with such
powers as are reasonably incidental thereto; (v) agrees that it will perform in
accordance with their terms all of the obligations which by the terms of the
Credit Agreement are required to be performed by it as a Bank; (vi) specifies as
its Lending Office (and address for notices) the office set forth beneath its
name on the signature pages hereof, (vii) represents and warrants that the
execution, delivery and performance of this Assignment and Acceptance are within
its corporate powers and have been duly authorized by all necessary corporate
action[, and (viii) attaches the forms prescribed by the Internal Revenue
Service of the United States certifying as to the Assignee's status for purposes
of determining exemption from United States withholding taxes with respect to
all payments to be made to the Assignee under the Credit Agreement and the Notes
or such other documents as are necessary to indicate that all such payments are
subject to such taxes at a rate reduced by an applicable tax treaty].
4. The Effective Date for this Assignment and Acceptance shall
be___________, 19___ (the "Effective Date"). Following the execution of this
Assignment and Acceptance, it will be delivered to the Agent for execution and
acceptance by the Agent and, if applicable, to the Borrower for execution by the
Borrower.
<PAGE>
5. Upon such execution and acceptance by the Agent and, if
applicable, execution by the Borrower, from and after the Effective Date, (i)
the Assignee shall be a party to the Credit Agreement and, to the extent rights
and obligations have been transferred to it by this Assignment and Acceptance,
have the rights and obligations of a Bank thereunder and (ii) the Assignor
shall, to the extent its rights and obligations have been transferred to the
Assignee by this Assignment and Acceptance, relinquish its rights (other than
under Sections 8.03, 9.03 and 9.04 of the Credit Agreement) and be released from
its obligations under the Credit Agreement.
6. Upon such execution and acceptance by the Agent and, if
applicable, execution by the Borrower, from and after the Effective Date, the
Agent shall make all payments in respect of the interest assigned hereby to the
Assignee. The Assignor and Assignee shall make all appropriate adjustments in
payments for periods prior to such acceptance by the Agent directly between
themselves.
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of Georgia.
[NAME OF ASSIGNOR]
By:______________________________
Title:___________________________
[NAME OF ASSIGNEE]
By:______________________________
Title:___________________________
Lending Office:
[Address]
WACHOVIA BANK, N.A., As Agent
By:______________________________
Title:___________________________
McWHORTER TECHNOLOGIES, INC.
By:_______________________________
Title:____________________________
<PAGE>
EXHIBIT E
NOTICE OF BORROWING
________________, 199__
Wachovia Bank, N.A., as Agent
191 Peachtree Street, N.W.
Atlanta, Georgia 30303-1757
Attention: U.S. Corporate Group
Re: Credit Agreement (as amended and modified from time to time, the
"Credit Agreement") dated as of July 30, 1997 by and among
McWhorter Technologies, Inc., the Banks from time to time parties
thereto, and Wachovia Bank, N.A., as Agent.
Unless otherwise defined herein, capitalized terms used herein shall
have the meanings attributable thereto in the Credit Agreement.
This Notice of Borrowing is delivered to you pursuant to Section 2.02
of The Credit Agreement.
The Borrower hereby requests a [Euro-Dollar Borrowing] [Base Rate
Borrowing] [Finnish Markka Borrowing] [Foreign Currency Borrowing in][specify
Foreign Currency] in the aggregate principal amount of [the Dollar Equivalent
of] $___________ to be made on_______________, 199__, and for interest to accrue
thereon at the rate established by the Credit Agreement for [Euro-Dollar Loans]
[Base Rate Loans] [Finnish Markka Loans] [Foreign Currency Loans]. The duration
of the Interest Period with respect thereto shall be [1 month] [2 months] [3
months] [6 months].
The Borrower has caused this Notice of Borrowing to be executed and
delivered by its duly authorized officer this________ day of____________, 199__.
McWHORTER TECHNOLOGIES, INC.
By:___________________________________
Title:________________________________
<PAGE>
EXHIBIT F
COMPLIANCE CERTIFICATE
Reference is made to the Credit Agreement dated as of July 30, 1997
(as modified and supplemented and in effect from time to time, the "Credit
Agreement") among McWhorter Technologies, Inc., the Banks from time to time
parties thereto, and Wachovia Bank, N.A., as Agent. Capitalized terms used
herein shall have the meanings ascribed thereto in the Credit Agreement.
Pursuant to Section 5.01(c) of the Credit Agreement,______________,
the duly authorized_________________ of McWhorter Technologies, Inc., hereby
(i) certifies to the Agent and the Banks that the information contained in the
Compliance Check List attached hereto is true, accurate and complete as of
______________, 199__, and that no Default is in existence on and as of the date
hereof and (ii) restates and reaffirms that the representations and
warranties contained in Article IV of the Credit Agreement are true on and as
of the date hereof as though restated on and as of this date.
McWHORTER TECHNOLOGIES, INC.
By:_______________________________
Title:____________________________
<PAGE>
COMPLIANCE CHECK LIST
McWhorter Technologies, Inc.
_________________, 199__
1. Ratio of Consolidated Funded Debt to EBITDA. (Section 5.03)
At the end of each Fiscal Quarter, commencing with the Fiscal Quarter
ending October 31, 1997, the ratio of Consolidated Funded Debt (on such
date) to EBITDA (for the period of the 4 consecutive Fiscal Quarters
ending on such date; provided that with respect to Subsidiaries
acquired during such period of 4 consecutive Fiscal Quarters then
ending, EBITDA of such Subsidiaries prior to such acquisition which
would otherwise be excluded under GAAP purchase accounting treatment
shall not be so excluded under this Section 5.03) shall at all times
be less than (i) 4.0 to 1.0 through and including the calculation
thereof as of July 31, 2000, and (ii) 3.5 to 1.0 for each quarterly
determination thereafter.
(a) Consolidated Funded Debt Schedule - 1 $
(b) Consolidated Net Income $
(c) Consolidated Interest Expense $
(d) Taxes $
(e) Depreciation $
(f) Amortization $
(g) Sum of (b) through (g) for any
Subsidiary acquired during such
period of 4 consecutive Fiscal
Quarters then ending $
(h) Sum of (b) through (g) $
Actual Ratio of (a) to (h)
Maximum Ratio [4.00 to 1.0]
[after July 31,
2000, 3.5 to 1.0]
<PAGE>
2. Fixed Charges Coverage (Section 5.06)
The ratio of the Borrower's (i) Consolidated Net Income, plus
Consolidated Interest Expense and taxes to (ii) Consolidated
Interest Expense, shall at all times be greater than or equal to
2.50 to 1.0, calculated quarterly on a consolidated basis for the
period of the 4 consecutive Fiscal Quarters ending on such date.
(a) Consolidated Net Income $
(b) Consolidated Interest Expense $
(c) Taxes $
(d) Sum of (a) through (c) $
Ratio of (d) to (b)
Requirement 2.5 to 1.0
3. Loans and Advances (Section 5.07)
Neither the Borrower nor any of its Subsidiaries shall make loans or
advances to any Person except: (i) loans or advances to employees not
exceeding $1,000,000 in the aggregate principal amount outstanding
at any time, in each case made in the ordinary course of business;
(ii) deposits required by government agencies, public utilities,
landlords or vendors or to secure payment of worker's compensation,
unemployment insurance or similar obligations, in each case incurred
in the ordinary course of Business; and (iii) loans or advances to
Subsidiaries which timely become and thereafter remain Guarantors
pursuant to Section 5.24; and (iv) loans or advances made by the
Borrower to Subsidiaries which timely become and thereafter remain
Eligible Foreign Subsidiaries pursuant to Section 5.25;
provided that after giving effect to the making of any loans, advances
or deposits permitted by this Section, the Borrower will be in full
compliance with all the provisions of this Agreement.
<PAGE>
(a) To Employees $
Limitation $1,000,000
(b) Deposits described in clause (ii) $
Limitation None
4. Investments (Section 5.08)
Neither the Borrower nor any of its Subsidiaries shall make Investments
in any Person except Investments (i) as of the Closing Date (including
minority Investments to be made pursuant to the Acquisition Agreements
not exceeding $2,000,000 in the aggregate) listed on Schedule 1.01(a),
(ii) in Subsidiaries which timely become and thereafter remain (A)
Guarantors pursuant to Section 5.24, or (B) Eligible First Tier
Foreign Subsidiaries pursuant to Section 5.25, (iii) in Persons which
do not timely become and thereafter remain (A) Guarantors pursuant to
Section 5.24, or (B) Eligible First Tier Foreign Subsidiaries pursuant
to Section 5.25, provided that such Investments do not exceed (x) from
the Closing Date through and including January 29, 1998, $25,000,000 in
the aggregate, or (y) after January 29, 1998, the greater of
$20,000,000 or 20% of Stockholder's Equity, (iv) as permitted by
Section 5.07 and (v) in (A) direct obligations of the United States
Government maturing within one year, (B) certificates of deposit issued
by a commercial bank whose credit is reasonably satisfactory to the
Agent, (C) commercial paper rated A1 or the equivalent
thereof by Standard & Poor's Corporation or P1 or the equivalent
thereof by Moody's Investors Service, Inc. and in either case maturing
within 6 months after the date of acquisition and/or (D) tender bonds
the payment of the principal of and interest on which is fully
supported by a letter of credit issued by a United States bank whose
long-term certificates of deposit are rated at least AA or the
equivalent thereof by Standard & Poor's Corporation and Aa or the
equivalent thereof by Moody's Investors Service, Inc.; provided,
however, with respect to clauses (ii), (iii) and (iv) in
this Section 5.08, no Investments shall be permitted to be made after
the Closing Date (A) in the event that a Default or Event of Default is
in effect or will be caused by such
<PAGE>
Investment, and (B) unless the
Borrower certifies to the Agent in writing prior to making any such
Investment the Borrower's pro forma compliance with the financial
covenants set forth in Sections 5.03 and 5.06 of this Agreement, such
written certification and pro forma calculations to be in form and
substance satisfactory to the Agent in all respects.
a. Investments in Persons who are not
Guarantors or Eligible First Tier
Foreign Subsidiaries $_____________
[through January 29, 1998]
[b. Limitation $25,000,000]
[after January 29, 1998]
[b. 20% of Stockholders' Equity $_____________
c. Limitation (greater of (b)
and $20,000,000) $_____________]
5. Negative Pledge (Section 5.09)
Description of Lien and Property Amount of Debt
subject to same Secured
a. ___________________________ $_____________
b. ___________________________ $_____________
c. ___________________________ $_____________
d. ___________________________ $_____________
e. ___________________________ $_____________
f. ___________________________ $_____________
g. ___________________________ $_____________
Total $
<PAGE>
Amount of Liens permitted by paragraph (a) $
Limitation $1,000,000
Amount of Liens permitted by paragraph (i) $
Amount of Liens permitted by paragraphs $
(a) through (i)
<PAGE>
Schedule - 1
<TABLE>
Consolidated Funded Debt
<CAPTION>
INTEREST
RATE MATURITY TOTAL
<S> <C> <C> <C>
Secured
$
$
$
$
$
Total Secured $
Unsecured
$
$
$
$
Total Unsecured $
Redeemable Preferred Stock $
Total $
Guaranteed Outstanding
Debt Balance on Schedule 1.01(a) $
</TABLE>
<PAGE>
Face Amount of Guaranteed
Debt Balance on Schedule 1.01(a) $
Guaranteed Outstanding
Debt Balance after the Closing Date $
Face Amount of Guaranteed
Debt Balance after the Closing Date $
Total $
Other Debt
$
$
$
Total Consolidated Funded Debt $
<PAGE>
EXHIBIT G
McWHORTER TECHNOLOGIES, INC.
CLOSING CERTIFICATE
Reference is made to the Credit Agreement (the "Credit Agreement")
dated as of July 30, 1997, among McWhorter Technologies, Inc., the Banks listed
therein, and Wachovia Bank, N.A., as Agent. Capitalized terms used herein
have the meanings ascribed thereto in the Credit Agreement.
Pursuant to Section 3.01(e) of the Credit Agreement,_______________
____________, the duly authorized___________________of McWhorter Technologies,
Inc. hereby certifies to the Agent and the Banks that (i) no Default has
occurred and is continuing as of the date hereof, and (ii) the representations
and warranties contained in Article IV of the Credit Agreement are true on and
as of the date hereof.
Certified as of this 30th day of July, 1997.
By:_______________________________
Printed Name:_____________________
Title:____________________________
McWhorter Technologies, Inc.
<PAGE>
EXHIBIT H
McWHORTER TECHNOLOGIES, INC.
SECRETARY'S CERTIFICATE
The undersigned,___________________________________, Secretary of
McWhorter Technologies, Inc., a Delaware corporation (the "Borrower"), hereby
certifies that [s]he has been duly elected, qualified and is acting in such
capacity and that, as such, [s]he is familiar with the facts herein certified
and is duly authorized to certify the same, and hereby further certifies, in
connection with the Credit Agreement dated as of July 30, 1997 among the
Borrower, Wachovia Bank, N.A. as Agent and as a Bank, and certain other Banks
listed on the signature pages thereof, that:
1. Attached hereto as Exhibit A is a complete and correct copy of the
Certificate of Incorporation of the Borrower as in full force and effect on
the date hereof as certified by the Secretary of State of the State of
Delaware, the Borrower's state of incorporation.
2. Attached hereto as Exhibit B is a complete and correct copy of the
Bylaws of the Borrower as in full force and effect on the date hereof.
3. Attached hereto as Exhibit C is a complete and correct copy of the
resolutions duly adopted by the Board of Directors of the Borrower on
_________________, 1997 approving, and authorizing the execution and delivery
of, the Credit Agreement, the Notes and the other Loan Documents (as such terms
are defined in the Credit Agreement) to which the Borrower is a party. Such
resolutions have not been repealed or amended and are in full force and
effect, and no other resolutions or consents have been adopted by the Board of
Directors of the Borrower in connection therewith.
4. _______________________________, who is_________________________
of the Borrower signed the Credit Agreement, the Notes and the other Loan
Documents to which the Borrower is a party, was duly elected, qualified and
acting as such at the time [s]he signed the Credit Agreement, the Notes and
other Loan Documents to which the Borrower is a party, and [his/her] signature
appearing on the Credit Agreement, the Notes and the other Loan Documents to
which the Borrower is a party is [his/her] genuine signature.
<PAGE>
IN WITNESS WHEREOF, the undersigned has hereunto set [his/her] hand as of
[____________________________].
_____________________________________
<PAGE>
EXHIBIT I
FORM OF LIMITED GUARANTY
THIS LIMITED GUARANTY AGREEMENT (this "Guaranty") is made as of
[___________________] by [Domestic Subsidiary] (the "Guarantor") in favor of
the Agent, for the ratable benefit of the Banks, under the Credit Agreement
referred to below;
W I T N E S S E T H
WHEREAS, MCWHORTER TECHNOLOGIES, INC., a Delaware corporation (the
"Principal"), WACHOVIA BANK, N.A., as Agent (the "Agent"), and certain other
Banks from time to time party thereto have entered into a certain Credit
Agreement dated as of July 30, 1997, (as same may be amended or modified from
time to time, the "Credit Agreement"), providing, subject to the terms and
conditions thereof, for extensions of credit to be made by the Banks to the
Principal for the benefit of the Principal and of the Guarantor;
WHEREAS, it is a condition precedent to the Agent and the Banks
executing the Credit Agreement that the Guarantor execute and deliver this
Guaranty whereby the Guarantor shall guarantee the payment when due of all
principal, interest and other amounts that shall be at any time payable by the
Principal under the Credit Agreement, the Notes and the other Loan Documents,
subject to the limitations contained in Section 3 hereof; and
WHEREAS, in consideration of the financial and other support that
the Principal has provided, and such financial and other support as the
Principal may in the future provide, to the Guarantor (including, without
limitation, direct or indirect loans, advances and other financial
accommodations), and in order to induce the Banks and the Agent to permit such
loans, advances and other financial accommodations pursuant to the Credit
Agreement, the Guarantor is willing to guarantee the obligations of the
Principal under the Credit Agreement, the Notes, and the other Loan Documents
as provided herein;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
<PAGE>
SECTION 1. Definitions. Terms defined in the Credit Agreement and
not otherwise defined herein have, as used herein, the respective meanings
provided for therein.
SECTION 2. Representations and Warranties. If the Guarantor is a
Subsidiary, the Guarantor incorporates herein by reference as fully as if set
forth herein all of the representations and warranties pertaining to it as a
Subsidiary contained in Article IV of the Credit Agreement (which
representations and warranties shall be deemed to have been renewed by the
Guarantor upon each Borrowing (except for Refunding Loans) under the Credit
Agreement which occurs while this Guaranty is in force and effect).
SECTION 3. The Guaranty. The Guarantor hereby unconditionally and
jointly and severally with any other Guarantor under the Credit Agreement
guarantees the full and punctual payment (whether at stated maturity, upon
acceleration or otherwise) of the principal of and interest on each Note
issued by the Principal pursuant to the Credit Agreement, and the full and
punctual payment of all other amounts payable by the Principal under the
Credit Agreement and the other Loan Documents (all of the foregoing
obligations being referred to collectively as the "Guaranteed Obligations").
Upon failure by the Principal to pay punctually any such amount, the Guarantor
agrees that it shall forthwith on demand pay the amount not so paid at the
place and in the manner specified in the Credit Agreement, the relevant Note
or the relevant Loan Document, as the case may be. Notwithstanding the
foregoing, the Guarantor shall have no liability hereunder for an amount in
excess of: (i) the sum of (x) the aggregate principal amount of all loans,
advances and other financial accommodations made to the Guarantor by the
Principal, directly or indirectly, at any time after the Closing Date, less
(y) all amounts repaid by the Guarantor thereon; plus (ii) interest on the
amount determined under clause (i) from the date due until the date paid at
the Default Rate; plus (iii) all costs of collection, including reasonable
attorneys fees.
SECTION 4. Guaranty Unconditional. The obligations of the
Guarantor hereunder shall be unconditional and absolute, except as expressly
limited by Section 3, and, without limiting the generality of the foregoing,
shall not be released, discharged or otherwise affected by:
(i) any extension, renewal, settlement, compromise,
waiver or release in respect of any obligation of the Principal
under the Credit Agreement, any Note, any other Limited Guaranty or
any other Loan Document, by operation of law or otherwise or any
<PAGE>
obligation of any other Guarantor of any of the Guaranteed
Obligations;
(ii) any modification or amendment of or supplement to
the Credit Agreement, any Note, any other Limited Guaranty or any
other Loan Document;
(iii) any release, nonperfection or invalidity of any
direct or indirect security for any obligation of the Principal
under the Credit Agreement, any Note, any other Limited Guaranty,
any Loan Document, or any obligations of any other Guarantor of any
of the Guaranteed Obligations;
(iv) any change in the corporate existence, structure
or ownership of the Principal or any other Guarantor of any of the
Guaranteed Obligations, or any insolvency, bankruptcy,
reorganization or other similar proceeding affecting the Principal,
or any other guarantor of the Guaranteed Obligations, or its assets
or any resulting release or discharge of any obligation of the
Principal, or any other Guarantor of any of the Guaranteed
Obligations;
(v) the existence of any claim, setoff or other rights
which the Guarantor may have at any time against the Principal, any
other Guarantor of any of the Guaranteed Obligations, the Agent,
any Bank or any other Person, whether in connection herewith or any
unrelated transactions, provided that nothing herein shall prevent
the assertion of any such claim by separate suit or compulsory
counterclaim;
(vi) any invalidity or unenforceability relating to or
against the Principal, or any other guarantor of any of the
Guaranteed Obligations, for any reason related to the Credit
Agreement, any other Loan Document, any other Limited Guaranty, or
any provision of applicable law or regulation purporting to
prohibit the payment by the Principal, or any other Guarantor of
the Guaranteed Obligations, of the principal of or interest on any
Note or any other amount payable by the Principal under the Credit
Agreement, the Notes, any other Limited Guaranty, or any other Loan
Document; or
(vii) any other act or omission to act or delay of any
kind by the Principal, any other Guarantor of the Guaranteed
Obligations, the Agent, any Bank or any other Person or any other
circumstance whatsoever which might, but for the provisions of this
paragraph,
<PAGE>
constitute a legal or equitable discharge of the
Guarantor's obligations hereunder.
SECTION 5. Discharge Only Upon Payment In Full;
Reinstatement In Certain Circumstances. The Guarantor's obligations
hereunder shall remain in full force and effect until all Guaranteed
Obligations shall have been paid in full and the Commitments under the
Credit Agreement shall have terminated or expired. If at any time any
payment of the principal of or interest on any Note or any other amount
payable by the Principal under the Credit Agreement or any other Loan
Document is rescinded or must be otherwise restored or returned upon the
insolvency, bankruptcy or reorganization of the Principal or otherwise,
the Guarantor's obligations hereunder with respect to such payment shall
be reinstated as though such payment had been due but not made at such
time.
SECTION 6. Waiver of Notice by the Guarantor. The Guarantor
irrevocably waives acceptance hereof, presentment, demand, protest and,
to the fullest extent permitted by law, any notice not provided for
herein or in the Credit Agreement, as well as any requirement that at
any time any action be taken by any Person against the Principal, any
other Guarantor of the Guaranteed Obligations, or any other Person.
SECTION 7. Other Waivers by the Guarantor. The Guarantor
hereby expressly waives, renounces, and agrees not to assert, any right,
claim or cause of action, including, without limitation, a claim for
reimbursement, subrogation, indemnification or otherwise, against the
Principal arising out of or by reason of this Guaranty or the
obligations of the Guarantor hereunder, including, without limitation,
the payment or securing or purchasing of any of the Guaranteed
Obligations by the Guarantor, provided such waiver shall be effective
only for so long as necessary to preclude the successful assertion of a
preferential avoidance action under section 547 of the United States
Bankruptcy Code or similar or successor statute. The waiver,
renunciation and agreement contained in the immediately preceding
sentence is for the benefit of the Agent and the Banks and also for the
benefit of the Principal who may assert the benefits thereof as a
third-party beneficiary, and the Guarantor may be released from such
waiver, renunciation and agreement only by the execution and delivery,
by the Agent, the Required Banks and the Principal, of an instrument
expressly releasing the Guarantor therefrom.
<PAGE>
SECTION 8. Stay of Acceleration. If acceleration of the
time for payment of any amount payable by the Principal under the Credit
Agreement, any Note or any other Loan Document is stayed upon the
insolvency, bankruptcy or reorganization of the Principal, all such
amounts otherwise subject to acceleration under the terms of the Credit
Agreement, any Note or any other Loan Document shall nonetheless be
payable by the Guarantor hereunder forthwith on demand by the Agent made
at the request of the Required Banks.
SECTION 9. Notices. All notices, requests and other
communications to any party hereunder shall be given or made by
telecopier or other writing and telecopied or mailed or delivered to the
intended recipient at its address or telecopier number set forth on the
signature pages hereof or such other address or telecopy number as such
party may hereafter specify for such purpose by notice to the Agent in
accordance with the provisions of Section 9.01 of the Credit Agreement.
Except as otherwise provided in this Guaranty, all such communications
shall be deemed to have been duly given when transmitted by telecopier,
or personally delivered or, in the case of a mailed notice, 72 hours
after such communication is deposited in the mails with first class
postage prepaid, in each case given or addressed as aforesaid.
SECTION 10. No Waivers. No failure or delay by the Agent or
any Banks in exercising any right, power or privilege hereunder shall
operate as a waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies
provided in this Guaranty, the Credit Agreement, the Notes, and the
other Loan Documents shall be cumulative and not exclusive of any rights
or remedies provided by law.
SECTION 11. Successors and Assigns. This Guaranty is for
the benefit of the Agent and the Banks and their respective successors
and assigns and in the event of an assignment of any amounts payable
under the Credit Agreement, the Notes, or the other Loan Documents, the
rights hereunder, to the extent applicable to the indebtedness so
assigned, may be transferred with such indebtedness. This Guaranty may
not be assigned by the Guarantor without the prior written consent of
the Agent and the Required Banks, and shall be binding upon the
Guarantor and its successors and permitted assigns.
<PAGE>
SECTION 12. Changes in Writing. Neither this Guaranty nor
any provision hereof may be changed, waived, discharged or terminated
orally, but only in writing signed by the Guarantor and the Agent with
the consent of the Required Banks.
SECTION 13. GOVERNING LAW; SUBMISSION TO JURISDICTION;
WAIVER OF JURY TRIAL. THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAW OF THE STATE OF GEORGIA. THE GUARANTOR AND
THE AGENT EACH HEREBY SUBMIT TO THE NONEXCLUSIVE JURISDICTION OF THE
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA AND OF
ANY GEORGIA STATE COURT SITTING IN ATLANTA, GEORGIA AND FOR PURPOSES OF
ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS GUARANTY OR THE
TRANSACTIONS CONTEMPLATED HEREBY. THE GUARANTOR IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH ANY OF THEM MAY
NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING
BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT
IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. THE
GUARANTOR AND THE AGENT EACH HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT
TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO
THIS GUARANTY OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 14. Taxes, etc. All payments required to be made by
the Guarantor hereunder shall be made without setoff or counterclaim and
free and clear of and without deduction or withholding for or on account
of, any present or future taxes, levies, imposts, duties or other
charges of whatsoever nature imposed by any government or any political
or taxing authority as required pursuant to Section 2.11(d) of the
Credit Agreement.
<PAGE>
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to
be duly executed by its authorized officer as of the date first above
written.
[Name of Guarantor]
By:___________________________________
Title:________________________________
Attention:____________________________
Telecopier:___________________________
Confirmation:_________________________
<PAGE>
EXHIBIT J
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT (this "Agreement"), is made and entered into as
of [ ], 199[ ], by and between Wachovia Bank, N.A., a national
banking association, in its capacity as Agent under the Credit Agreement
hereinafter referred to (the "Agent", which term shall include any successor
Agent under the Credit Agreement) for the ratable benefit of the "Banks" under
the Credit Agreement and McWhorter Technologies, Inc. ("Borrower");
W I T N E S E T H:
WHEREAS, pursuant to a certain Credit Agreement of even date herewith
among the Agent, Borrower, and the "Banks" thereunder (as amended or
supplemented from time to time, the "Credit Agreement"; capitalized terms used
herein without definition have the meanings given them in the Credit
Agreement), Borrower is or may hereafter become indebted to the Banks in
respect of the principal and interest on Loans made from time to time by the
Banks to the Borrower under the Credit Agreement, and fees, costs,
indemnification and other amounts from time to time owing by the Borrower
under the Credit Agreement or any other Loan Document (collectively, the
"Secured Obligations"); and
WHEREAS, to induce the Banks to extend or to continue to extend credit
to the Borrower, the Borrower has agreed, at the Banks' request, to make and
enter into this Agreement;
NOW, THEREFORE, for the sum of $10 in hand paid and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and to induce the Banks to extend credit from time to time to
the Borrower, the Borrower and the Agent hereby agree as follows:
SECTION 1. Definitions. Terms defined in the Credit Agreement and
not otherwise defined herein have, as used herein, the respective meanings
provided for therein.
SECTION 2. Pledge of Collateral. Borrower does hereby pledge,
hypothecate, assign, transfer, set over, deliver and grant a security interest
in and to the Agent, for the ratable benefit of the Banks, in all (a)
instruments, including collections relating to such instruments representing
any and all indebtedness for money borrowed and from time to time owing from
[Foreign Subsidiary] (the "Subsidiary") to Borrower, together with all
proceeds thereof, including, without limitation, the
<PAGE>
Pledged Note (which
original Pledged Note is simultaneously herewith being delivered to Agent,
accompanied by an endorsement to the Agent signed by Borrower), and (b)
capital stock owned by Borrower issued by the Subsidiary set forth and
described on Appendix "2" attached hereto (the certificates for such capital
stock are simultaneously herewith being delivered to Agent, accompanied by
blank stock powers signed by Borrower), together with any and all other
securities, cash or other property at any time and from time to time
receivable or otherwise distributed in respect of or in exchange for any or
all of such pledged stock, and together with the proceeds thereof (the
"Pledged Stock") (hereinafter said property described in the foregoing clauses
(a) and (b) being collectively referred to as the "Collateral"), all as
security for the payment of the Secured Obligations.
SECTION 3. Holding of Collateral and Rights. (a) Borrower acknowledges
and agrees that the Agent shall hold the Collateral, together with all right,
title, interest, powers, privileges and preferences pertaining or incidental
thereto forever, subject, however, to return of the Collateral (or such
portion thereof as may be existing from time to time hereafter after giving
effect to the terms hereof) by the Agent to Borrower upon payment in full of
all the Secured Obligations and termination by the Banks in writing of any and
all credit commitments with respect thereto.
(b) So long as no Event of Default shall have occurred and be
continuing: (i) Borrower shall be entitled to exercise any and all voting and
other consensual rights pertaining to the Pledged Stock or any part thereof
for any purpose not prohibited by the terms of this Agreement; provided,
however, that following request therefor by Agent, Borrower shall not exercise
or refrain from exercising any such right if such action would have a material
adverse effect on the value of the Pledged Stock or any part thereof; and,
provided further, that Borrower shall give Agent at least ten days' written
notice of the manner in which it intends to exercise any such right; (ii)
Agent shall execute and deliver (or cause to be executed and delivered) to
Borrower all such proxies and other instruments as Borrower may reasonably
request for the purpose of enabling Borrower to exercise the voting and other
rights which it is entitled to exercise pursuant to clause (i) above; and
(iii) Borrower shall be entitled to receive and retain any cash dividends,
interest or any other distribution of property paid, payable or otherwise
distributed in cash in respect of the Pledged Stock. Upon the occurrence and
during the continuance of an Event of Default, all rights of Borrower to
exercise the voting and other consensual rights which it would otherwise be
entitled to exercise pursuant hereto shall cease, and all such rights shall
thereupon become vested in Agent who shall thereupon have the sole right to
exercise such voting
<PAGE>
and other consensual rights; provided, however, Borrower
shall continue to have the rights to exercise such voting and other consensual
rights notwithstanding the occurrence and continuance of an Event of Default
until Agent delivers a notice to Borrower of its intention to exercise such
voting and other consensual rights.
SECTION 4. Representations and Warranties. The Borrower incorporates
herein by reference as fully as if set forth herein all of its representations
and warranties contained in Article IV of the Credit Agreement (which
representations and warranties shall be deemed to have been renewed by the
Borrower upon each Borrowing under the Credit Agreement).
SECTION 5. Delivery of Additional Instruments; Further Assurances. The
Borrower further covenants with the Agent that at the request of the Agent at
any time and from time to time, at the expense of the Borrower, the Borrower
will promptly execute and deliver all further instruments, stock certificates
and documents, including any additional instruments evidencing indebtedness of
the Subsidiary to the Borrower, and take all further action that the Agent may
reasonably request, in order to perfect and protect the security interest
granted or purported to be granted hereby or to enable the Agent to exercise
and enforce its rights, powers and remedies hereunder with respect to any
Collateral.
SECTION 6. Proceeds of Collateral. So long as no Event of Default has
occurred and is continuing, the Borrower shall be entitled to receive and
retain any proceeds in respect of the Collateral. Upon the occurrence and
during the continuance of an Event of Default, the Borrower shall receive and
hold all payments in respect of the Collateral in trust for the benefit of the
Agent, and, at the request of the Agent, shall remit all such amounts to the
Agent for application to the Secured Obligations in such order as the Agent
(acting at the direction of the Required Banks) shall elect.
SECTION 7. Agent Appointed Attorney-in-Fact. The Borrower hereby
irrevocably appoints the Agent as the Borrower's attorney-in-fact, with full
authority in the place and stead of the Borrower and in the name of the
Borrower or otherwise, from time to time in the Agent's discretion, to take
any action and to execute any instrument which the Agent may deem reasonably
necessary or advisable to accomplish the purposes of this Agreement,
including, without limitation, from and after the occurrence of an Event of
Default to retain any dividend issued with respect to the Pledged Stock,
receive, endorse and collect the Pledged Note and all instruments made payable
to the Borrower representing any dividend, principal and/or interest payment
or
<PAGE>
other distribution in respect of the Collateral or any part thereof and to
give full discharge for the same, when and to the extent permitted by this
Agreement.
SECTION 8. The Agent May Perform. If the Borrower fails to perform any
agreement contained herein, the Agent may perform, or cause performance of,
such agreement, and the expenses of the Agent incurred in connection therewith
shall be payable by the Borrower under Section 11; provided, that, the Agent
shall exercise commercially reasonable efforts to notify the Borrower prior to
taking any such action (although the failure to so notify the Borrower shall
not limit the Agent's rights hereunder).
SECTION 9. Reasonable Care. To the maximum extent permitted by law,
the Agent shall be deemed to have exercised reasonable care in the custody and
preservation of the Collateral in its possession if the Collateral is accorded
treatment substantially equal to that which the Agent accords the Agent's own
property, it being understood that the Agent shall not have responsibility for
(i) ascertaining or taking action with respect to maturities, notices or other
matters relative to any Collateral, whether or not the Agent has or is deemed
to have knowledge of such matters, unless reasonably requested to do so by the
Borrower, or (ii) taking any necessary steps to preserve rights against any
parties with respect to any Collateral.
SECTION 10. Remedies. If any Event of Default shall have occurred and
be continuing:
A. The Agent may exercise (in compliance with all applicable
laws) in respect of the Collateral, in addition to other rights and remedies
provided for herein or otherwise available to them, all the rights and
remedies of a secured party on default under the Uniform Commercial Code in
effect in the State of Georgia at that time, and the Agent may also, without
notice except as specified below at anytime during the existence of an Event
of Default, (i) make demand for payment on the Subsidiary in respect of the
Pledged Note, and (ii) sell (in compliance with all applicable securities
laws) the Collateral or any part thereof in one or more parcels at public or
private sale, at any exchange, over the counter or at any of the Agent's
offices or elsewhere, for cash, on credit or for future delivery, and at such
price or prices and upon such other terms as the Agent may deem commercially
reasonable or otherwise in such manner as necessary to comply with applicable
federal and state securities laws. The Agent shall be authorized at any such
sale (if it deems it advisable to do so) to restrict the prospective bidders
or purchasers to persons who will represent and agree that they are purchasing
the Collateral for their own account for
<PAGE>
investment and not with a view to the
distribution or sale thereof, and upon consummation of any such sale the Agent
shall have the right to assign, transfer and deliver to the purchaser or
purchasers at any such sale and such purchasers shall hold the property sold
absolutely, free from any claim or right on the part of the Borrower, and the
Borrower hereby waives (to the extent permitted by law) all rights of
redemption, stay and/or appraisal which it now has or may at any time in the
future have under any rule of law or statute now existing or hereafter
enacted. To the extent notice of sale shall be required by law, the Agent
shall give the Borrower at least 10 days' notice of the time and place of any
public sale or the time after which any private sale is to be made, which the
Borrower agrees shall constitute reasonable notification. At any such sale,
the Agent may bid (which bid may be, in whole or in part, in the form of
cancellation of Obligations) for and purchase the whole or any part of the
Collateral. The Agent shall not be obligated to make any sale of Collateral
regardless of notice of sale having been given. The Agent may adjourn any
public or private sale from time to time by announcement at the time and place
fixed therefor, and such sale may, without further notice, be made at the time
and place to which it was so adjourned. If sale of all or any part of the
Collateral is made on credit or for future delivery, the Collateral so sold
may be retained by the Agent until the sale price is paid by the purchaser or
purchasers thereof, but the Agent shall not incur any liability in case any
such purchaser or purchasers shall fail to take up and pay for the Collateral
so sold and, in case of any such failure, such Collateral may be sold again
upon like notice. The Borrower agrees that any sale of the Collateral
conducted by the Agent in accordance with the foregoing provisions of this
Section 10 shall be deemed to be a commercially reasonable sale under O.C.G.A.
Section 1-9-504 of the Georgia Uniform Commercial Code. As an alternative to
exercising the power of sale herein conferred upon them, the Agent may proceed
by a suit or suits at law or in equity to foreclose the security interest
granted under this Agreement and to sell the Collateral, or any portion
thereof, pursuant to a judgment or decree of a court or courts of competent
jurisdiction.
B. Any cash held by the Agent as Collateral and all cash
proceeds received by the Agent in respect of any sale of, collection from, or
other realization upon or any part of the Collateral following the occurrence
of an Event of Default may, in the discretion of the Agent, be held by the
Agent as collateral for, and/or then or at any time thereafter applied against
all or any part of the Secured Obligations, in such order of application as
the Agent (acting at the direction of the Required Banks) shall select.
<PAGE>
C. Any surplus of such cash or cash proceeds held by the Agent
and remaining after payment in full of all the Secured Obligations shall be
paid over to the Borrower or to whomsoever may be lawfully entitled to receive
such surplus.
SECTION 11. Expenses. The Borrower will, upon demand, pay to the
Agent the amount of any and all reasonable expenses, including the reasonable
fees and expenses of its counsel, actually incurred, and of any experts and
agents, and including any taxes or fees incurred on account of the execution,
issuance, delivery or recording of this Agreement or other documents executed
in connection herewith which the Agent may incur in connection with (i) the
administration of this Agreement, (ii) the custody or preservation of, or the
sale of, collection from, or other realization upon, any of the Collateral,
(ii) the exercise or enforcement of any of the rights of the Agent hereunder,
or (iv) the failure by the Borrower to perform or observe any of the
provisions hereof.
SECTION 12. Security Interest Absolute. All rights of the Agent
hereunder, the security interest granted to the Agent hereunder, and all
obligations of the Borrower hereunder, shall be absolute and unconditional
irrespective of any of the following, and the Borrower expressly consents to
the occurrence of any of such events and waives, in its capacity as Borrower,
to the extent permitted by law, any defense arising therefrom:
A. any lack of validity or enforceability of any of the Loan
Documents or any other agreement or instrument relating thereto;
B. any change in the time, manner or place of payment of, or in
any other term of, all or any of the Secured Obligations, or any other
amendment or waiver of or any consent to any departure from any of the Loan
Documents;
C. any exchange, release or non-perfection of any other
collateral, or any release or amendment or waiver of or consent to or
departure from any of the Loan Documents for all or any of the Secured
Obligations; or
D. any other circumstance which might otherwise constitute a
defense available to, or a discharge of, the Borrower in respect of the
Secured Obligations or in respect of this Agreement.
SECTION 13. Amendments, Etc. No amendment or waiver of any provision
of this Agreement nor consent to any departure by the Borrower herefrom shall
in any event be effective unless the same shall be in writing and signed by
the Agent and then such waiver
<PAGE>
or consent shall be effective only in the specific instance and for the
specific purpose for which given.
SECTION 14. No Waiver; Cumulative Remedies. No failure on the part of
the Agent to exercise, and no delay in exercising, any right, power or remedy
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right, power or remedy by the Agent preclude any other or
further exercise thereof or the exercise of any other right, power or remedy.
All remedies hereunder are cumulative and are not exclusive of any other
remedies provided by law.
SECTION 15. Severability. If any provision of any of this Agreement or
the application thereof to any party hereto or circumstances shall be invalid
or unenforceable to any extent, the remainder of this Agreement and the
application of such provisions to any other party thereto or circumstances
shall not be affected thereby and shall be enforced to the greatest extent
permitted by law.
SECTION 16. Notices. All notices, requests and other communications to
any party hereunder shall be in writing (including bank wire, telecopier or
similar writing) and shall be given to such party at its address or telecopier
number set forth hereinbelow or at such other address or telecopier number as
such party may hereafter specify for the purpose by notice to each other party
in accordance with the provisions of Section 9.01 of the Credit Agreement.
Except as otherwise provided in this Agreement, all such communications shall
be deemed to have been duly given when transmitted by telecopier, or
personally delivered or, in the case of a mailed notice, 72 hours after such
communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid.
SECTION 17. Time is of the Essence. Time is of the essence in this
Agreement.
SECTION 18. Interpretation. No provision of this Agreement shall be
construed against or interpreted to the disadvantage of any party hereto by
any court or other governmental or judicial authority by reason of such party
having or being deemed to have structured or dictated such provision.
SECTION 19. The Agent Not Joint Venturer. Neither this Agreement nor
any agreements, instruments, documents or transactions contemplated hereby
shall in any respect be interpreted, deemed or construed as making the Agent a
partner or joint venturer with the Borrower or as creating any similar
relationship or entity, and the Borrower agrees that it will not make any
contrary assertion, contention, claim or counterclaim in
<PAGE>
any action, suit or other legal proceeding involving the Agent and the Borrower.
SECTION 20. Jurisdiction. The Borrower agrees that any legal action
or proceeding with respect to this Agreement may be brought in the courts of the
State of Georgia or the United States of America for the Northern District of
Georgia, Atlanta Division, all as the Agent may elect. By execution of this
Agreement, the Borrower hereby submits to each such jurisdiction, hereby
expressly waiving whatever rights may correspond to it by reason of its
present or future domicile. Nothing herein shall affect the right of the
Agent to commence legal proceedings or otherwise proceed against the Borrower
in any other jurisdiction or to serve process in any manner permitted or
required by law.
SECTION 21. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Georgia and shall inure
to the benefit of and be binding upon the successors and assigns of the
parties hereto.
SECTION 22. Counterparts. This Agreement may be executed in two or
more counterparts, each of which when fully executed shall be an original, and
all of said counterparts taken together shall be deemed to constitute one and
the same agreement.
IN WITNESS WHEREOF, the Borrower has caused this Agreement to be
duly executed under seal as of the date first above written.
McWHORTER TECHNOLOGIES, INC. (SEAL)
By:______________________________________
Title:___________________________________
Telecopier number:_______________________
Confirmation number:_____________________
<PAGE>
ACCEPTED:
WACHOVIA BANK, N.A.,
in its capacity as Agent
By:
Title:
191 Peachtree Street, N.E.
Atlanta, GA 30303-1757
Attention: Syndications Group
Telecopier Number: 404-332-4005
Confirmation Number: 404-332-6454
<PAGE>
APPENDIX "1"
FORM OF PLEDGED NOTE
______________________________
[____________________], 199___
For value received, [Foreign Subsidiary], a_______________________
corporation ("Maker"), promises to pay to the order of McWhorter Technologies,
Inc. ON DEMAND the unpaid amount of each loan, advance or other credit
accommodation as currently reflected on the books and records of McWhorter
Technologies, Inc., as well as all loans, advances and other credit
accommodations hereafter made by McWhorter Technologies, Inc. from time to time
to Maker.
All loans, advances and other credit accommodations made by McWhorter
Technologies, Inc. to Maker and all repayments thereof shall be recorded by
McWhorter Technologies, Inc. at the request of the holder hereof at any time,
Maker will furnish to the holder a schedule of all such loans, advances or other
credits of such time on the form of schedule attached hereto as Exhibit "A".
[FOREIGN SUBSIDIARY]
By:
Title:
PAY TO THE ORDER OF WACHOVIA BANK, N.A., AS AGENT.
McWHORTER TECHNOLOGIES, INC. (SEAL)
By:
Title:
<PAGE>
<TABLE>
EXHIBIT "A"
LOANS AND PAYMENTS OF PRINCIPAL
<CAPTION>
Amount of
Loan or Amount Unpaid Notation
Date Advance Repaid Balance Made By
<S> <C> <C> <C> <C>
</TABLE>
<PAGE>
APPENDIX "2"
[Describe Capital Stock]
<PAGE>
EXHIBIT K
MONEY MARKET QUOTE REQUEST
Wachovia Bank, N.A.,
as Agent
191 Peachtree Street, N.E.
Atlanta, Georgia 30303
Attention:
Re: Money Market Quote Request
This Money Market Quote Request is given in accordance with
Section 2.03 of the Credit Agreement (as amended or modified from time to time,
the "Credit Agreement") dated as of July 30, 1997, among McWHORTER TECHNOLOGIES,
INC., the Banks from time to time parties thereto, and WACHOVIA BANK, N.A., as
Agent. Terms defined in the Credit Agreement are used herein as defined therein.
The Borrower hereby requests that the Agent obtain quotes for a Money
Market Borrowing based upon the following:
1. The proposed date of the Money Market Borrowing shall be
__________________, 19___ (the "Borrowing Date"). 1
2. The aggregate amount of the Money Market Borrowing shall be
$___________________. 2
3. The Stated Maturity Date(s) applicable to the Money Market
Borrowing shall be ________ days. 3
Very truly yours,
MCWHORTER TECHNOLOGIES, INC.
By:
Title:
_________________________________
1 The date must be a Domestic Business Day.
2 The amount of the Money Market Borrowing is subject to Section 2.03(a)
and (b).
3 The Stated Maturity Dates are subject to Section 2.03(b)(ii). The
Borrower may request that up to 3 different Stated Maturity Dates be
applicable to any Money Market Borrowing, provided, that (i) each such
Stated Maturity Date shall be deemed to be a separate Money Market
Quote Request and (ii) the Borrower shall specify the amounts of such
Money Market Borrowing to be subject to each such different Stated
Maturity Date.
<PAGE>
EXHIBIT L
MONEY MARKET QUOTE
Wachovia Bank, N.A.,
as Agent
191 Peachtree Street, N.E.
Atlanta, Georgia 30303
Attention:
Re: Money Market Quote to McWhorter Technologies, Inc.
This Money Market Quote is given in accordance with Section
2.03(c)(ii) of the Credit Agreement (as amended or modified from time to time,
the "Credit Agreement") dated as of July 30, 1997, among McWHORTER
TECHNOLOGIES, INC. (the "Borrower"), the Banks from time to time parties
thereto and WACHOVIA BANK, N.A., as Agent. Terms defined in the Credit
Agreement are used herein as defined therein.
In response to the Borrower's Money Market Quote Request dated
______________, 19__, we hereby make the following Money Market Quote on the
following terms:
1. Quoting Bank:
2. Person to contact
at Quoting Bank:
3. Date of Borrowing:1*
4. We hereby offer to make Money Market Loan(s) in the following
maximum principal amounts for the following Interest Periods and at the
following rates:
Maximum Stated
Principal Maturity
Amount 2 Date 3 Rate Per Annum4
______________________________
* All numbered footnotes appear on the last page of this Exhibit L.
<PAGE>
We understand and agree that the offer(s) set forth above, subject
to the satisfaction of the applicable conditions set forth in the Credit
Agreement, irrevocably obligate(s) us to make the Money Market Loan(s) for
which any offer(s) [is] [are] accepted, in whole or in part (subject to the
last sentence of Section 2.03(c)(i) of the Credit Agreement).
Very truly yours,
[Name of Bank]
Dated: By:___________________________
Authorized Officer
______________________________
______________________________
1 As specified in the related Money Market Quote Request.
2 The principal amount bid for each Stated Maturity Date may not exceed the
principal amount requested. Money Market Quotes must be made for at
least $1,000,000 or a larger multiple of $500,000.
3 The Stated Maturity Dates are subject to Section 2.03(b)(ii).
4 Subject to Section 2.03(c)(ii)(C).
<PAGE>
Schedule 1.01(a)
Guaranteed Debt as of the Closing Date:
1. Guarantee dated December 1996 between McWhorter Technologies, Inc. and
Nordic Investment Bank of 33 1/3% of McWhorter Technologies Oy's
obligations under terms of FIM 28,000,000 loan agreement.
2. Guarantee dated January 3, 1997 between McWhorter Technologies, Inc. and
Merita Bank Ltd. for 33 1/3% of McWhorter Technologies Oy's obligations
under terms of FIM 15,000,000 term loan and FIM 4,000,000 overdraft
credit limit.
3. Guarantee dated March 5, 1997 between McWhorter Technologies, Inc. and
Merita Bank Ltd., for 33 1/3% of McWhorter Limited's obligations under
terms of GBP 2,000,000 term loan.
4. Guarantee dated November 1996 between McWhorter Technologies, Inc. and
Nordbanken for 33 1/3% of McWhorter Technologies AB's obligations under
terms of SEK 20,000,000 note.
5. Guarantee dated November 1996 between McWhorter Technologies, Inc. and
Nordbanken for 33 1/3% of McWhorter Technologies AB's obligations under
terms of 15,000,000 SEK overdraft credit facility.
Immediately following the acquisition the following guarantee will be in
existence:
1. Guarantee dated May 12, 1994 issued by Syntech S.p.A. in favor of Confedi
Cuneo for an amount of ITL 5,000,000.
Liens as of the Closing Date:
1. Loan agreement between McWhorter Technologies, Inc. and PIDA secured by a
mortgage on Philadelphia, Pennsylvania facility with $29,603.59 of
principal outstanding as of July 30, 1997.
2. Promissory note dated August 31, 1995 between McWhorter Technologies,
Inc. and The Glidden Company secured by a deed to the Columbus, Georgia
facility with $4,500,000 of principal outstanding as of July 30, 1997.
Immediately following the acquisition the following liens will be in
existence:
<PAGE>
1. Loan agreement entered into between Mediocredito Piemontese S.p.A. and
Syntech S.p.A. dated May 27, 1993 with principal outstanding of ITL
379,600,000 as of July 30, 1997 secured by a real estate mortgage.
2. Loan agreement entered into between Banca Mediocredito S.p.A. and Syntech
S.p.A. dated November 20, 1995 with principal outstanding as of July 30,
1997 of ITL 1,500,000 secured by a real estate mortgage.
3. Loan Agreement entered into between Banca Mediocredito S.p.A. and Syntech
S.p.A. dated March 4, 1997 with principal outstanding as of July 30, 1997
of ITL 1,300,000,000 secured by a real estate mortgage.
4. Syntech is a party to several agreements for the purchase of industrial
equipment providing for retention of title in favor of the sellers of the
equipment until fully paid. The aggregate principal outstanding under
such agreements as of July 30, 1997 was ITL 1,388,200,000.
Investments as of the Closing Date:
1. 33 1/3% of the outstanding stock of McWhorter Technologies AB valued at
$4,891,000.
2. 40% of the outstanding stock of McWhorter Technologies Thailand Co. Ltd.
valued at $2,297,000.
3. 33 1/3% of the outstanding stock of Tikkurila McWhorter Co. or Processing
Systems, Inc. valued at $1,000,000.
Immediately following the acquisition the following investments will be owned:
1. Minority investments in Raisio Chemicals Italia s.r.1. and Syntech Far
East Company Ltd. not to exceed $2,000,000 in the aggregate.
<PAGE>
Schedule 4.14
Environmental Matters
[To be updated]
The operations of Borrower involve in the ordinary course of business the
generation and disposal of substances regulated by the United States
Environmental Protection Agency and certain state agencies under various
federal and state environmental laws. These activities could subject the
Borrower to an Environmental Liability.
Borrower is a potentially responsible party under CERCLA or state law at the
following superfund sites:
SITE LOCATION
Biosenski Landfill Philadelphia, PA
Carpentersville Carpentersville, IL
Carlstadt Carlstadt, NJ
Shore Realty Glenwood Landing, NY
Swope Pennsauken, NJ
Spectron Elkton, MD
Fisher-Calo Kingsbury, IN
American Chemical Services Griffith, IL
Remedial activities are underway at the Philadelphia, PA; Portland, OR;
Carpentersville, IL; Chicago Heights, IL; Lynwood, CA; and Forest Park, GA
plants.
Certain Environmental Authorizations which must be obtained in connection with
the Acquisition are pending. While the Borrower's policy is to comply with
Environmental Requirements as soon as practical, there have been and may be
occasions where compliance is delayed by such factors as scheduling
requirements of disposal companies, weather or uncertainty as to specific
compliance requirements. From time to time the Borrower contests in good
faith the specific procedures or requirements for compliance with
Environmental Requirements.
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