<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For Quarterly Period Ended September 30, 1996
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For Transition Period from ------------- to ----------------
Commission File Number 1-12658
ALBEMARLE CORPORATION
-----------------------------------------------------
(Exact name of registrant as specified in its charter)
VIRGINIA 54-1692118
- ------------------------------ ----------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
330 SOUTH FOURTH STREET
P. O. BOX 1335
RICHMOND, VIRGINIA 23210
- -------------------------- ------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code - (804) 788-6000
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 of common stock, $.01 par value, outstanding as
of October 31, 1996: 55,038,320
<PAGE> 2
ALBEMARLE CORPORATION
I N D E X
Page
Number
--------
PART I. FINANCIAL INFORMATION
ITEM 1. Financial Statements
Consolidated Balance Sheets - September 30, 1996 and
December 31, 1995 3-4
Consolidated Statements of Income - Three and Nine
Months Ended September 30, 1996 and 1995 5
Condensed Consolidated Statements of Cash Flows -
Nine Months Ended September 30, 1996 and 1995 6
Notes to the Consolidated Financial Statements 7-11
ITEM 2. Management's Discussion and Analysis of Results
of Operations and Financial Condition 12-16
PART II. OTHER INFORMATION
ITEM 1. Legal Proceedings 17
ITEM 6. Exhibits and Reports on Form 8-K 17
SIGNATURES 18
EXHIBIT INDEX 19
Exhibit 10.1 - Credit Agreement
Exhibit 27 - Financial Data Schedule
<PAGE> 3
PART I. FINANCIAL INFORMATION
- ------------------------------
ITEM 1. Financial Statements
--------------------
<TABLE>
ALBEMARLE CORPORATION AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
---------------------------
(Dollars In Thousands)
----------------------
<CAPTION>
September 30, December 31,
1996 1995
------------ ------------
(Unaudited)
ASSETS
<S> <C> <C>
Current assets:
Cash and cash equivalents $ 39,326 $ 33,130
Accounts receivable, less allowance
for doubtful accounts (1996-$1,191;
1995-$1,615) 137,740 198,125
Inventories:
Finished goods 45,585 132,334
Work-in-process 3,631 5,767
Raw materials 9,476 15,125
Stores, supplies and other 15,074 24,371
------------- ------------
73,766 177,597
Deferred income taxes and prepaid
expenses 18,864 19,935
------------- -------------
Total current assets 269,696 428,787
------------- -------------
Property, plant and equipment, at cost 1,126,647 1,493,846
Less accumulated depreciation and
amortization (638,680) (807,951)
------------- -------------
Net property, plant and equipment 487,967 685,895
Other assets and deferred charges 64,274 60,814
Goodwill and other intangibles - net of
amortization 24,315 28,995
-------------- ------------
Total assets $ 846,252 $ 1,204,491
============== ============
<FN>
See accompanying notes to the consolidated financial statements.
</TABLE>
<PAGE> 4
<TABLE>
ALBEMARLE CORPORATION AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
---------------------------
(Dollars In Thousands)
----------------------
<CAPTION>
September 30, December 31, 31,
1996 1995
------------- ------------
(Unaudited)
LIABILITIES AND SHAREHOLDERS' EQUITY
<S> <C> <C>
Current liabilities:
Accounts payable $ 54,077 $ 102,788
Long term debt, current portion 7,726 17,020
Accrued expenses 60,413 65,017
Dividends payable 3,853 3,634
Income taxes payable 31,191 5,760
------------ ----------
Total current liabilities 157,260 194,219
------------ ----------
Long-term debt 29,643 200,092
Other noncurrent liabilities 64,038 54,512
Deferred income taxes 101,610 133,102
Shareholders' equity:
Common stock, $.01 par value,
Issued - 55,038,320 in
1996 and 66,076,853 in 1995,
respectively 550 661
Additional paid-in capital 250,785 498,827
Foreign currency translation adjustments 19,345 27,604
Retained earnings 223,021 95,474
------------ ---------
Total shareholders' equity 493,701 622,566
------------ ---------
Total liabilities and shareholders'
equity $846,252 $1,204,491
============ ==========
<FN>
See accompanying notes to the consolidated financial statements.
</TABLE>
<PAGE> 5
<TABLE>
ALBEMARLE CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
---------------------------------------
(In Thousands Except Per-Share Amounts)
---------------------------------------
(Unaudited)
<CAPTION> Three Months Ended Nine Months Ended
September 30, September 30,
--------------------- ------------------
1996 1995 1996 1995
-------- -------- ------- -------
<S> <C> <C> <C> <C>
Net sales $183,776 $315,211 $649,986 $948,173
Cost of goods sold 139,016 241,790 474,342 742,627
-------- ------- -------- -------
Gross profit 44,760 73,421 175,644 205,546
Selling, general and
administrative expenses 25,212 34,095 88,436 98,876
Research and development
expenses 8,480 6,645 22,317 20,868
-------- ------- -------- -------
Operating profit 11,068 32,681 64,891 85,802
Interest and financing expenses 323 3,117 2,367 10,211
Gain on sales of businesses -- (4,925) (158,157) (4,925)
Other income, net (271) (1,111) (3,823) (1,933)
-------- ------- -------- -------
Income before income taxes 11,016 35,600 224,504 82,449
Income taxes 3,129 13,378 86,358 33,153
-------- ------- --------- -------
Net income $7,887 $22,222 $138,146 $49,296
======== ======= ========= =======
Earnings per share $.14 $.33 $2.30 $.74
======== ======= ========= =======
Shares used to compute
earnings per share 56,017 66,450 59,988 66,270
======== ======= ========== =======
Cash dividends declared
per share of common stock $.07 $.055 $.18 $.155
======== ======= ========== =======
<FN>
See accompanying notes to the consolidated financial statements.
</TABLE>
<PAGE> 6
<TABLE>
ALBEMARLE CORPORATION AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
-----------------------------------------------
(Dollars In Thousands)
----------------------
(Unaudited)
<CAPTION> Nine Months Ended
September 30,
--------------------
1996 1995
-------- --------
<S> <C> <C>
CASH AND CASH EQUIVALENTS AT BEGINNING OF YEAR $33,130 $32,114
-------- --------
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income 138,146 49,296
Adjustments to reconcile net income to cash
flows from operating activities:
Depreciation and amortization 54,204 69,622
Gain on sales of businesses, net of income
taxes of $63,780 and $1,868, respectively (94,377) (3,057)
Working capital increases excluding cash
and cash equivalents, net of the
effects of the sales of businesses:
Income tax payments on gain on sale
of business (59,324) --
Other working capital increases (10,059) (19,469)
Other, net (9,829) (10,652)
-------- -------
Net cash provided from operating activities 18,761 85,740
-------- -------
CASH FLOWS FROM INVESTING ACTIVITIES:
Capital expenditures (64,094) (81,891)
Proceeds from sales of businesses, net of
expenses and $42,297 of trade accounts
payable retained by the Company 487,345 4,195
Acquisition of business -- (2,138)
Collections on notes received from sale of
business -- 8,250
Other, net 1,982 352
-------- -------
Net cash provided from (used in) investing
activities 425,233 (71,232)
-------- --------
CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from borrowings 26,641 29,394
Repayments of long-term debt (204,334) (19,543)
Purchases of common stock (250,270) --
Dividends paid (10,380) (9,909)
Other, net 545 -
--------- --------
Net cash (used in) financing activities (437,798) (58)
--------- --------
Increase in cash and cash equivalents 6,196 14,450
--------- --------
CASH AND CASH EQUIVALENTS AT END OF PERIOD $39,326 $46,564
========= ========
<FN>
See accompanying notes to the consolidated financial statements.
</TABLE>
<PAGE> 7
ALBEMARLE CORPORATION AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
----------------------------------------------
(In Thousands Except Per-Share Amounts)
(Unaudited)
1. In the opinion of management, the accompanying consolidated
financial statements contain all adjustments necessary to
present fairly, in all material respects, the Company's
consolidated financial position as of September 30, 1996 and
December 31, 1995, the consolidated results of operations for
the three- and nine-month periods ended September 30, 1996 and
1995, and the condensed consolidated cash flows for the nine
months ended September 30, 1996 and 1995. All adjustments are
of a normal and recurring nature. These consolidated
financial statements should be read in conjunction with the
consolidated financial statements and notes thereto included
in the Company's 1995 Annual Report which was incorporated by
reference in the Company's Form 10-K filed on March 28, 1996.
The December 31, 1995 consolidated balance sheet data was
derived from audited financial statements, but does not
include all disclosures required by generally accepted
accounting principles. The results of operations for the
three- and nine-month periods ended September 30, 1996, are
not necessarily indicative of the results to be expected for
the full year. Certain amounts in the accompanying
consolidated financial statements have been reclassified to
conform to the current presentation.
2. On March 1, 1996, the Company sold its alpha olefins, poly
alpha olefins, and synthetic alcohol businesses ("Olefins
Business") to Amoco Chemical Company ("Amoco") for $487.3
million, including plant and equipment (primarily located in
Pasadena, Texas, Deer Park, Texas and Feluy, Belgium), other
assets, inventory and accounts receivable, net of expenses and
trade accounts payable retained and paid by the Company, and
certain business-related liabilities transferred at the date
of sale. The sale involved the transfer of approximately 550
people who supported these businesses. The gain on the sale
was $158.2 million ($94.4 million after income taxes or $1.57
per share), net of $44.3 million of costs incurred in
connection with the sale for early retirements and work-force
reductions, abandonment costs of certain facilities and
certain other accruals (including environmental) related to
the sale and/or the businesses sold. In connection with the
sale of the Olefins Business, the Company utilized
approximately $20 million of its Belgian net operating loss
carryforward to offset, in part, the Belgian portion of the
taxable gain.
The transaction includes numerous operating and service
agreements primarily focusing on the sharing of common
facilities at the Pasadena plant site and the operation of the
Feluy plant site.
The net sales and operating profit before allocation of
corporate expenses for the Olefins Business for the three-months
ended September 30, 1995 were $129.3 and $8.3 million,
respectively.
<PAGE> 8
ALBEMARLE CORPORATION AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
----------------------------------------------
(In Thousands Except Per-Share Amounts)
(Unaudited)
2. Continued.
In addition, the net sales and operating loss before
allocation of corporate expenses for the Olefins Business for
the nine-months ended September 30, 1995 were $363.1 million
and ($9.0) million, respectively.
3. On July 31, 1995 the Company sold its electronic materials
business to MEMC Pasadena, Inc. for approximately $59.2
million, consisting of $4.2 million in cash and two notes
totaling $55 million. The gain realized on the sale was
deferred and was recognized as principal payments were
collected on the notes received as consideration for the sale.
For the three and nine-month periods ended September 30, 1995
the company recognized a gain of approximately $4.9 million
($3.1 million after taxes, or $.04 cents per share). The
non-cash effects of the remaining balances of the note receivable
and related deferred gain at September 30, 1995 approximated
$46.8 million and $18.5 million, respectively, and are not
reflected in the accompanying September 30, 1995 condensed
consolidated statement of cash flow. Additionally, the
Company currently operates for MEMC the granular polysilicon
plant located at Pasadena, Texas.
4. Debt consists of the following:
<TABLE>
<CAPTION>
September 30, December 31,
1996 1995
------------- ------------
<S> <C> <C>
Variable-rate bank loans $20,600 $130,000
Foreign bank borrowings 15,598 85,919
Miscellaneous 1,171 1,193
------------- -------------
Total 37,369 217,112
Less current maturities 7,726 17,020
------------- -------------
Long-term debt $29,643 $200,092
============= =============
</TABLE>
The reduction in long-term debt reflects payments resulting
from use of the proceeds received from the sale of the Olefins
Business.
On September 24, 1996, to replace its existing credit
facility, the Company entered into a new five-year, $500
million unsecured Competitive Advance and Revolving Credit
Facility Agreement (the "Credit Agreement") with a consortium
of banks at various interest rate options. No amounts were
outstanding at September 30, 1996 under that agreement. The
Credit Agreement contains certain covenants typical for a
credit agreement of its size and nature, including financial
covenants requiring the company to maintain consolidated
indebtedness (as defined) of not more than 60% of the sum of
consolidated shareholders' equity and consolidated
indebtedness.
<PAGE> 9
ALBEMARLE CORPORATION AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
----------------------------------------------
(In Thousands Except Per-Share Amounts)
(Unaudited)
5. The third quarter 1996 effective income tax rate was lower
than the effective tax rate for nine months 1996, excluding
the effects of the sale of the Olefins Business, due to the
cumulative effect of a lower effective income tax rate for the
year than previously forecasted. Both periods effective income
tax rates were lower than the normal combined federal and
state income tax rates for the periods. The provisions for
income taxes on the operating results of the Company in the
accompanying consolidated statements of income for the three-
and nine-month periods ended September 30, 1995 are higher
than normal combined federal and state income tax rates
primarily due to the absence of tax benefits on net operating
losses of the Company's Belgian subsidiary as the Company
provided valuation allowances against the deferred tax assets
related to these net operating losses due to the uncertainty
of the assets' realization.
6. On April 1, 1996, the Company purchased 9,484,465 shares of
its common stock, at a price of $23 per share for a total
aggregate price (including expenses) of $219.4 million,
through a self tender offer, which began on March 4, 1996 and
concluded on April 1, 1996, following the sale of its Olefins
Business to Amoco. Additionally, the Company purchased
275,400 and 1,481,100 common shares in the second and third
quarters of 1996, respectively. The Company still has
authorization from its board of directors to purchase
approximately 4.2 million additional shares.
7. The following unaudited supplemental pro forma condensed
consolidated statement of income for the nine months ended
September 30, 1996 is presented assuming that the disposition
of the Olefins Business had occurred as of January 1, 1995.
The related pro forma information is presented for
informational purposes only and is not necessarily indicative
of the results of operations of the Company or what the
results of operations would have been had the Company operated
without the Olefins Business during the nine months ended
September 30, 1996. Additionally, the accompanying pro forma
information, consistent with the data presented in the
Company's Form 8-K filed on March 15, 1996, does not give any
effect to the purchase of 9,484,465 shares of common stock
acquired in the tender offer as if it had occurred on
January 1, 1995.
<PAGE> 10
ALBEMARLE CORPORATION AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
----------------------------------------------
(In Thousands Except Per-Share Amounts)
(Unaudited)
7. Continued.
<TABLE>
Pro Forma Condensed Consolidated
Statement of Income
Nine Months Ended September 30, 1996
------------------------------------
<CAPTION>
Historical Adjustments Pro Forma
---------- ----------- ---------
<S> <C> <C> <C> <C> <C>
Net sales $649,986 $ (79,763) (a)
799 (b) $571,022
Cost of goods sold 474,342 (71,200) (a)
420 (b) 403,562
---------- ---------- ---------
Gross profit 175,644 (8,184) 167,460
Selling, R&D and general
expenses 110,753 (5,221) (a) 105,532
---------- ---------- ---------
Operating profit 64,891 (2,963) 61,928
Interest and financing
expenses 2,367 (1,563) (c) 804
Gain on sale of business (158,157) 158,157 (d) --
Other income, net (3,823) 16 (a)
(60) (e) (3,867)
---------- ---------- ---------
Income before income taxes 224,504 (159,513) 64,991
Income taxes 86,358 (63,780) (d)
(519) (f) 22,059
---------- ---------- ---------
Net income $138,146 $ (95,214) $42,932
========== ========== =========
Earnings per share $2.30 $.72
========== =========
Shares used to compute
earnings per share 59,988 59,988 (g)
========== =========
<FN>
See accompanying notes to the pro forma condensed
consolidated statement of income.
</TABLE>
<PAGE> 11
ALBEMARLE CORPORATION AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
----------------------------------------------
(In Thousands Except Per-Share Amounts)
(Unaudited)
7. Continued.
Notes to the pro forma condensed consolidated statement of income
are described below:
(a) To eliminate the results of operations of the Olefins Business
for the period January 1, 1996 thru February 29, 1996 as
though the sale to Amoco occurred on January 1, 1995 and to
reflect reductions in administrative and other costs which
occurred because of personnel, employee benefits (including
compensation) and other cost reductions assumed implemented
following the sale of the Olefins Business to Amoco.
(b) To record service fee income and incremental sales revenue
generated from providing various services and products under
contracts to Amoco and to record costs and expenses for
services and products provided by Amoco. The service and
supply arrangements were entered into in connection with the
sale of the Olefins Business to Amoco.
(c) To reflect the pro forma interest cost savings resulting from
the repayment of certain domestic and Belgian debt using the
proceeds received from the sale of the Olefins Business.
(d) To eliminate the gain and the related income taxes on the
March 1, 1996, sale of the Olefins Business.
(e) To record the related amortization of certain advance rents
received from Amoco upon closing of the sale of the Olefins
Business associated with an arrangement in the nature of an
operating lease in Belgium.
(f) To record the income tax effects of the adjustments set forth
in Notes (a) through (c) and (e) above, calculated at an assumed
state and federal combined income tax rate of 37.92% for
domestic items and an assumed combined rate of 35% for items
related to the Company's Belgian subsidiary which includes the
utilization of a portion of its net operating loss
carryforwards and the estimated additional income taxes which
would have resulted if undistributed Belgian foreign earnings
had been remitted to the Company.
(g) The average number of shares used to compute earnings per
share does not include the effects of the Company's April 1,
1996 self tender offer as if it had occurred on January 1,
1995. The average number of shares would have been 57,231,000
had the offer been assumed to have been completed on January
1, 1995.
<PAGE> 12
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS
------------------------------------
OF RESULTS OF OPERATIONS AND FINANCIAL CONDITION
------------------------------------------------
The following is management's discussion and analysis of certain
significant factors affecting the results of operations during the
periods included in the accompanying consolidated statements of
income and changes in financial condition since December 31, 1995
of Albemarle Corporation ("Albemarle" or "the Company")
On March 1, 1996, the Company sold its alpha olefins, poly alpha
olefins and synthetic alcohol businesses ("Olefins Business") to
Amoco Chemical Company ("Amoco"). After the sale, Albemarle is
engaged in the bromine chemicals, specialty chemicals and
detergents and surfactants businesses.
Results of Operations
- ---------------------
Third Quarter 1996 Compared with Third Quarter 1995
- ---------------------------------------------------
NET SALES
Net sales for the third quarter of 1996 amounted to $183.8 million,
down from $315.2 million in 1995. Excluding the third quarter 1995
net sales of the Olefins Business sold March 1, 1996 and the
electronic materials business sold July 31, 1995, Albemarle's net
sales for the third quarter of 1996 would have increased two
percent ($4.3 million) from the 1995 primarily due to higher
shipments of organometallics, partly offset by decreases in
shipments of flame retardants, agricultural intermediates and
bromine fine chemicals.
OPERATING COST AND EXPENSES
Cost of goods sold decreased primarily due to the impact of
shipments of the Olefins Business and the electronic materials
business in the third quarter of 1996 versus third quarter 1995 and
higher foreign exchange gains offset in part by higher costs in
pharmaceutical intermediates related primarily to naproxen start-up
costs as well as higher operating costs and lower operating rates
in flame retardants and bromine fine chemicals in the 1996 third
quarter. Overall gross profit margins increased to 24.4% in the
1996 third quarter from 23.3% in the corresponding period in 1995.
Selling, general and administrative expenses, combined with
research and development expenses, decreased 17% ($7.0 million) in
1996 from the 1995 quarter, primarily due to lower employee related
expenses as a result of the sale of the Olefins Business and the
electronic materials business as well as reductions in employee
benefit costs and in the allowance for doubtful accounts. These
reductions were offset in part by higher research and development
expenses related to flame retardants and pharmaceuticals. As a
percentage of net sales, selling, general and administrative
expenses, including research and development expenses, increased to
18.3% in 1996 from 12.9% in the 1995 quarter.
<PAGE> 13
OPERATING PROFIT
Excluding the results of businesses sold in both periods operating
profit was significantly lower for the third quarter 1996 than the
corresponding period of 1995 due to lower shipments and higher
costs in flame retardants and bromine fine chemicals and higher
costs in pharmaceutical intermediates.
INTEREST AND FINANCING EXPENSES AND OTHER INCOME
Interest and financing expenses in the third quarter of 1996
decreased to $.3 million from $3.1 million in 1995 due primarily
to lower average outstanding debt. Other income decreased $.8
million due primarily to the absence of interest income from the
notes receivable from MEMC Pasadena, Inc. received in connection
with the July 31, 1995 sale of the electronic materials business.
GAIN ON SALE OF BUSINESS
The Company's third quarter 1995 earnings included a gain of $4.9
million (approximately $3.1 million after income taxes)
representing the partial recognition of a gain realized on the July
31, 1995 sale of the Company's electronic materials business.
INCOME TAXES
The effective income tax rate for the third quarter of 1996 was
28.4% versus a 37.6% rate for the corresponding period of 1995.
Income taxes decreased $8.4 million in the 1996 quarter compared to
the 1995 quarter, on a $19.7 million decrease in pretax income from
operations, excluding the effect of the gain on the sale of the
electronics materials business in 1995. The lower than normal
effective income tax rate and related income tax expense for the
third quarter of 1996 was due to an adjustment to reflect the
effect of lower than expected pretax income from operations and the
planned utilization of foreign tax credits in 1996. The rate in the
corresponding period in 1995 was higher than normal primarily
because the Company provided valuation allowances against net
operating losses of its Belgian subsidiary.
Results of Operations
- ---------------------
Nine Months 1996 Compared with Nine Months 1995
- -----------------------------------------------
NET SALES
Net sales for the first nine months of 1996 amounted to $650.0
million, down from $948.2 million in 1995. Excluding the net sales
in both periods of the Olefins Business sold March 1, 1996 and the
electronic materials business sold July 31, 1995, Albemarle's net
sales for the first nine months of 1996 would have increased three
percent ($15.3 million) over the 1995 period. The sales increase
in the remaining businesses was primarily due to higher shipments
of organometallics, bromine and derivatives and bromine fine
chemicals, partly offset by decreases in shipments of
pharmaceutical intermediates, flame retardants and zeolites.
<PAGE> 14
OPERATING COSTS AND EXPENSES
Cost of goods sold decreased primarily due to decreases in
shipments, mainly due to the impact of the effects of the
businesses sold as well as higher foreign exchange gains offset in
part by higher costs in pharmaceutical intermediates related to
naproxen start-up as well as higher operating costs and lower
operating rates in flame retardants and bromine fine chemicals in
the 1996 period. Gross profit margins for nine months 1996
increased overall to 27.0% from 21.7% in the corresponding period
in 1995.
Selling, general and administrative expenses, combined with
research and development expenses, decreased 8% ($9.0 million) in
the first nine months of 1996 from the corresponding period in
1995, primarily due to lower employee related expenses as a result
of the sale of the Olefins Business and the electronic materials
business, as well as reductions in employee benefit costs and lower
costs of outside services, offset in part by the expense associated
with the exercise of certain stock appreciation rights and higher
data processing expenses. As a percentage of net sales, selling,
general and administrative expenses, including research and
development expenses, increased to 17.0% in the first nine months
of 1996 from 12.6% in 1995.
OPERATING PROFIT
Operating profit in the first nine months of 1996 decreased 24%
($20.9 million) from the corresponding period in 1995. Excluding
the results of businesses sold in both periods, operating profit
was significantly lower for the first nine months of 1996 than for
the corresponding period of 1995 due to lower shipments and higher
costs in pharmaceutical intermediates and flame retardants.
INTEREST AND FINANCING EXPENSES AND OTHER INCOME
Interest and financing expenses in the first nine months of 1996
decreased to $2.4 million from $10.2 million in the corresponding
period of 1995 primarily due to lower average outstanding debt.
Other income was up $1.9 million over the 1995 period primarily due
to interest income from the temporary investment of a portion of
the proceeds from the sale of the Olefins Business.
GAIN ON SALE OF BUSINESSES
The Company's earnings for the first nine months of 1996 included
a gain resulting from the March 1, 1996 sale of the Olefins
Business to Amoco for $487.3 million, including plant and equipment
(primarily located in Pasadena, Texas, Deer Park, Texas and Feluy,
Belgium), other assets, inventory and accounts receivable, net of
expenses and trade accounts payable retained and paid by the
Company and certain business-related liabilities transferred at the
date of sale. The sale involved the transfer of approximately 550
people who supported these businesses. The gain on the sale was
$158.2 million ($94.4 million after income taxes or $1.57 per
share), net of costs incurred or accrued in connection with the
sale. (See Note 2 of the Notes to the Consolidated Financial
Statements on page 7.) The Company's third quarter 1995 earnings
included a gain of $4.9 million (approximately $3.1 million after
income taxes) representing the partial recognition of the gain
realized on the sale of the electronic materials business.
<PAGE 15>
INCOME TAXES
Income taxes in the first nine months of 1996 increased $53.2
million from the 1995 period on a $142.0 million increase in pretax
income while the effective income tax rate was 38.5% in the 1996
period versus a 40.2% rate for the corresponding period in 1995.
Excluding the effect of the gains on the sales of the businesses,
income taxes in the first nine months of 1996 decreased $8.7
million compared to the 1995 period, reflecting an effective income
tax rate of 34.0%, down from the 40.4% rate for the first nine
months of 1995, on an $11.2 million decrease in pretax income from
operations. The rate for the first nine months of 1996 was
favorably impacted by improved operating results from the Company's
former Belgium subsidiary, lower than expected pretax income from
operations and the planned benefits in 1996 of foreign tax credits.
The rate in 1995 was higher than normal primarily because the
Company provided valuation allowances against net operating losses
of its Belgian subsidiary.
Financial Condition and Liquidity
- ---------------------------------
Cash and cash equivalents at September 30, 1996, were $39.3 million
which represents an increase of $6.2 million from $33.1 million at
year-end 1995.
Approximately 18.8 million of cash was generated by operations in
the first nine months of 1996, which included installment income
tax payments of $59.3 million on the gain on the sale of the
Olefins Business. Excluding the impact of the income tax payments,
cash flows from operations would have been $78.1 million which
together with $26.6 million of proceeds from borrowings were
sufficient to cover operating activities, capital expenditures,
payment of dividends, purchases of common stock and increase cash
and cash equivalents.
Proceeds from the sale of the Olefins Business of $487.3 million,
net of expenses and trade payables retained and paid by the
Company, were used to purchase 9,759,865 shares of common stock,
repay long-term debt, and pay installments of income taxes related
to the sale.
On September 24, 1996, to replace its existing credit facility, the
Company entered into a new five-year, $500 million unsecured
Competitive Advance and Revolving Credit Facility Agreement with a
consortium of banks at various interest rate options. No amounts
were outstanding at September 30, 1996 under that agreement. The
Credit Agreement contains certain covenants typical for a credit
agreement of its size and nature, including financial covenants
requiring the Company to maintain consolidated indebtedness (as
defined) of not more than 60% of the sum of consolidated
shareholders' equity and consolidated indebtedness.
The Company anticipates that cash provided from operations in the
future will be sufficient to pay its operating expenses, satisfy
debt-service obligations and make dividend payments to common
shareholders at current rates.
<PAGE> 16
The Company's foreign currency translation adjustments, net of
related deferred taxes, at September 30, 1996, decreased 30% from
December 31, 1995, primarily due to the strengthening of the U.S.
dollar.
The non-current portion of the Company's long-term debt amounted to
$29.6 million at September 30, 1996, compared to $200.1 million at
the end of 1995. The reduction in long-term debt reflects payments
resulting from the use of proceeds received from the sale of the
Olefins Business. The Company's long-term debt, including the
current portion, as a percentage of total capitalization at
September 30, 1996, amounted to approximately 7.0% compared to
25.9% at December 31, 1995.
The Company's capital expenditures in the third quarter of 1996
were lower than in the third quarter of 1995. For the year,
capital expenditures should be significantly below the 1995 level.
Capital spending will be financed primarily with cash flow from
operations with any needed additional cash to be provided from
debt. The amount and timing of any borrowing will depend on the
Company's specific cash requirements.
The Company is subject to federal, state, local and foreign
requirements regulating the handling, manufacture and use of
materials (some of which may be classified as hazardous or toxic by
one or more regulatory agencies), the discharge of materials into
the environment and the protection of the environment. To the best
of the Company's knowledge, it currently is complying with and
expects to continue to comply in all material respects with
existing environmental laws, regulations, statutes and ordinances.
Such compliance with federal, state, local and foreign
environmental protection laws has not in the past had, and is not
expected to have in the future, a material effect on earnings or
the competitive position of Albemarle.
Among other environmental requirements, the Company is subject to
the federal Superfund law, and similar state laws, under which the
Company may be designated as a potentially responsible party and
may be liable for a share of the costs associated with cleaning up
various hazardous waste sites.
<PAGE> 17
Part II - OTHER INFORMATION
- ---------------------------
ITEM 1. Legal Proceedings
-----------------
An administrative proceeding, involving a potential penalty in
excess of $100,000, was previously reported in the Company's 1996
first quarter report on Form 10-Q. The Company completed a
settlement on August 30, 1996 for a cash penalty of less than
$100,000, plus a supplemental environmental project to be agreed
upon, expected to cost approximately $150,000.
An administrative proceeding with the federal Occupational Safety
and Health Administration, involving a proposed penalty of
$119,000, was previously reported in the Company's 1996 second
quarter report on Form 10-Q. The Company has filed a notice of
contest and is contesting vigorously.
ITEM 6. Exhibits and Reports on Form 8-K
--------------------------------
(a) Exhibits - The following document is filed as an
exhibit to this Form 10-Q pursuant to Item 601 of
Regulation S-K:
10.1 Credit Agreement, dated as of September 24, 1996,
between the Company, NationsBank, N.A. as
administrative agent and Bank of America Illinois, The
Bank of New York and The Chase Manhattan Bank, as co-agents and
certain commercial banks, which supersedes
the Credit Agreement of February 16, 1994, previously
filed with the Securities and Exchange Commission in
its entirety.
27 Financial Data Schedule
(b) No reports on Form 8-K have been filed during the quarter
for which this report is filed.
<PAGE> 18
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.
ALBEMARLE CORPORATION
----------------------
(Registrant)
Date: November 5, 1996 By: s/Thomas G. Avant
------------------------------
Senior Vice President
(Principal Accounting Officer)
Date: November 5, 1996 By: s/Robert G. Kirchhoefer
----------------------------
Treasurer
<PAGE> 19
EXHIBIT INDEX
-------------
EXHIBIT 10.1
- ------------
Credit Agreement, dated as of September 24, 1996, between the
Company, NationsBank, N.A. as administrative agent and Bank of
America Illinois, The Bank of New York and The Chase Manhattan
Bank, as co-agents and certain commercial banks, which supersedes
the Credit Agreement of February 16, 1994, previously filed with the
Securities and Exchange Commission in its entirety.
EXHIBIT 27
- -----------
Financial Data Schedule
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY INFORMATION EXTRACTED FROM THE CONSOLIDATED
BALANCE SHEET AND THE CONSOLIDATED STATEMENT OF INCOME FILED AS PART OF THE
ANNUAL REPORT ON FORM 10-Q AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH
ANNUAL REPORT ON FORM 10-Q
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-END> SEP-30-1996
<CASH> $39,326
<SECURITIES> $0
<RECEIVABLES> $138,931
<ALLOWANCES> $1,191
<INVENTORY> $73,766
<CURRENT-ASSETS> $269,696
<PP&E> $1,126,647
<DEPRECIATION> $638,680
<TOTAL-ASSETS> $846,252
<CURRENT-LIABILITIES> $157,260
<BONDS> $0
$0
$0
<COMMON> $550
<OTHER-SE> $493,151
<TOTAL-LIABILITY-AND-EQUITY> $846,252
<SALES> $649,986
<TOTAL-REVENUES> $649,986
<CGS> $474,342
<TOTAL-COSTS> $585,095
<OTHER-EXPENSES> $0
<LOSS-PROVISION> $0
<INTEREST-EXPENSE> $2,367
<INCOME-PRETAX> $224,504
<INCOME-TAX> $86,358
<INCOME-CONTINUING> $138,146
<DISCONTINUED> $0
<EXTRAORDINARY> $0
<CHANGES> $0
<NET-INCOME> $138,146
<EPS-PRIMARY> $2.30
<EPS-DILUTED> $2.30
</TABLE>
<PAGE>1
EXHIBIT 10.1
$500,000,000
COMPETITIVE ADVANCE AND REVOLVING CREDIT
FACILITY AGREEMENT
Dated as of September 24, 1996
among
ALBEMARLE CORPORATION,
THE BANKS NAMED HEREIN,
NATIONSBANK, N.A.,
AS ADMINISTRATIVE AGENT
AND
BANK OF AMERICA ILLINOIS,
THE BANK OF NEW YORK
and
THE CHASE MANHATTAN BANK,
AS CO-AGENTS
<PAGE>2
TABLE OF CONTENTS
Page
ARTICLE I
Definitions 1
SECTION 1.1. Defined Terms 1
SECTION 1.2. Terms Generally 15
ARTICLE II
The Credits 15
SECTION 2.1. Commitments 15
SECTION 2.2. Loans 16
SECTION 2.3. Competitive Bid Procedure 18
SECTION 2.4. Committed Borrowing Procedure 20
SECTION 2.5. Refinancings 21
SECTION 2.6. Fees 22
SECTION 2.7. Notes; Repayment of Loans 22
SECTION 2.8. Interest on Loans 23
SECTION 2.9. Additional Interest; Alternate Rate of
Interest 24
SECTION 2.10. Termination, Reduction and Extension of
Commitments 24
SECTION 2.11. Prepayment of Loans. 26
SECTION 2.12. Reserve Requirements; Change in
Circumstances 26
SECTION 2.13. Change in Legality 29
SECTION 2.14. Indemnity 29
SECTION 2.15. Pro Rata Treatment, etc. 30
SECTION 2.16. Payments. 30
SECTION 2.17. Taxes 31
SECTION 2.18. Certain Bank Obligations 35
ARTICLE III
Representations and Warranties 35
SECTION 3.1. Organization, Corporate Powers 36
SECTION 3.2. Authorization 36
SECTION 3.3. Governmental Approval 36
SECTION 3.4. Financial Condition 36
SECTION 3.5. No Material Adverse Change 37
SECTION 3.6. Subsidiaries 37
SECTION 3.7. Litigation 37
SECTION 3.8. Tax Returns 38
SECTION 3.9. Properties 38
<PAGE>3
SECTION 3.10. Employee Benefit Plans 38
SECTION 3.11. Investment Company Act; Public Utility
Holding Company Act 39
SECTION 3.12. Federal Reserve Regulations 39
SECTION 3.13. No Material Misstatements 39
SECTION 3.14. Compliance with Laws 39
SECTION 3.15. Environmental and Safety Matters 39
ARTICLE IV
Conditions of Lending 40
SECTION 4.1. Closing Conditions 40
SECTION 4.2. Conditions to be Satisfied on Date of Each
Borrowing 41
ARTICLE V
Affirmative Covenants 42
SECTION 5.1. Corporate Existence; Businesses and
Properties 42
SECTION 5.2. Insurance 43
SECTION 5.3. Obligations and Taxes 43
SECTION 5.4. Financial Statements, Reports, etc 43
SECTION 5.5. Litigation and Other Notices 45
SECTION 5.6. ERISA 45
SECTION 5.7. Access to Premises and Records 46
SECTION 5.8. Issuance of Notes 46
ARTICLE VI
Negative Covenants 46
SECTION 6.1. Liens, etc. 47
SECTION 6.2. Intentionally Omitted 48
SECTION 6.3. Compliance with Regulations G, U and X 48
SECTION 6.4. Mergers, Consolidations and Sales
of Assets 48
SECTION 6.5. Leverage Ratio. 49
ARTICLE VII
Events of Default 49
<PAGE>3
ARTICLE VIII
The Administrative Agent 52
ARTICLE IX
Miscellaneous 55
SECTION 9.1. Notices. 55
SECTION 9.2. No Waivers; Amendments. 55
SECTION 9.3. Right of Setoff. 56
SECTION 9.4. Successors and Assigns. 57
SECTION 9.5. Expenses; Indemnity 60
SECTION 9.6. Survival of Agreements, Representations
and Warranties, etc. 61
SECTION 9.7. Governing Law 61
SECTION 9.8. Sharing of Setoffs 61
SECTION 9.9. Interest Rate Limitation 62
SECTION 9.10. Entire Agreement 62
SECTION 9.11. Waiver of Jury Trial 63
SECTION 9.12. Severability 63
SECTION 9.13. Counterparts 63
SECTION 9.14. Headings 63
SECTION 9.15. Jurisdiction; Consent to Service
of Process 63
SECTION 9.16. Binding Effect 64
<PAGE>4
Exhibits
Exhibit A-1 Form of Competitive Bid Request
Exhibit A-2 Form of Competitive Bid Invitation
Exhibit A-3 Form of Competitive Bid
Exhibit A-4 Form of Competitive Bid Accept/Reject Letter
Exhibit A-5 Form of Committed Borrowing Request
Exhibit B-1 Form of Competitive Note
Exhibit B-2 Form of Committed Note
Exhibit C Form of Assignment and Acceptance
Exhibit D Form of Administrative Questionnaire
Schedules
Schedule 2.1 Banks and Commitments
Schedule 3.6 Subsidiaries
Schedule 3.7 Litigation
Schedule 3.15 Environmental and Safety Matters
Schedule 4.1(f) Form of Legal Opinion
Schedule 6.1 Liens
<PAGE>5
COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY
AGREEMENT dated as of September 24, 1996, among ALBEMARLE
CORPORATION, a Virginia corporation (hereinafter called the
"COMPANY"), the banks listed in Schedule 2.1 (the "Banks"),
NATIONSBANK, N.A., a national banking association, as
administrative agent for the Banks under this Agreement (in
such capacity, the "ADMINISTRATIVE AGENT") and BANK OF
AMERICA ILLINOIS, THE BANK OF NEW YORK and THE CHASE
MANHATTAN BANK, as co-agents (in such capacity, the "Co-
Agents").
The Company has requested the Banks to extend credit to the
Company in order to enable it to borrow on a committed revolving
credit basis on and after the Effective Date and at any time and
from time to time prior to the Maturity Date (such terms and each
other capitalized term used but not defined in this introductory
statement having the meanings given to such terms in Section
1.1), a principal amount not in excess of $500,000,000 at any
time outstanding. The Company has also requested the Banks to
provide a procedure pursuant to which the Company may invite the
Banks to bid on an uncommitted basis on short-term borrowings by
the Company. The proceeds of borrowings hereunder are to be used
for general corporate purposes, including to refinance existing
debt and to finance acquisitions, common stock repurchases,
working capital and capital expenditures. The Banks are
severally, and not jointly, willing to extend such credit to the
Company on the terms and conditions hereinafter set forth.
Accordingly, the Company, the Administrative Agent, the Co-Agents
and the Banks agree as follows (it being understood that this
Agreement and the obligations of the parties hereto will become
effective only as provided in Section 9.16):
ARTICLE I
Definitions
SECTION 1.1. DEFINED TERMS. As used in this Agreement, the
following words and terms shall have the meanings specified
below:
"ABR BORROWING" shall mean a Borrowing comprised of ABR
Loans.
"ABR LOAN" shall mean any Committed Loan bearing
interest at a rate determined by reference to the Alternate
Base Rate in accordance with the provisions of Article II.
<PAGE>6
"ADMINISTRATIVE FEES" shall have the meaning assigned
to such term in Section 2.6(b).
"ADMINISTRATIVE QUESTIONNAIRE" shall mean an
Administrative Questionnaire in the form of Exhibit D.
"AFFILIATE" shall mean, when used with respect to a
specified person, another person that directly, or
indirectly through one or more intermediaries, Controls or
is Controlled by or is under common Control with the person
specified.
"ALTERNATE BASE RATE" shall mean, for any day, a rate
per annum (rounded upwards, if necessary, to the next 1/16
of 1%) equal to the greater of (a) the Prime Rate in effect
on such day and (b) the Federal Funds Effective Rate in
effect on such day plus 1/2 of 1%. For purposes hereof,
"Prime Rate" shall mean the rate of interest per annum
publicly announced from time to time by the Administrative
Agent as its prime rate in effect at its principal office in
Charlotte, North Carolina; each change in the Prime Rate
shall be effective on the date such change is publicly
announced as effective. "Federal Funds Effective Rate"
shall mean, for any day, the weighted average of the rates
on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as
published on the next succeeding Business Day by the Federal
Reserve Bank of New York, or, if such rate is not so
published for any day which is a Business Day, the average
of the quotations for the day of such transactions received
by the Administrative Agent from three Federal funds brokers
of recognized standing selected by it. If for any reason
the Administrative Agent shall have determined (which
determination shall be conclusive absent manifest error)
that it is unable to ascertain the Federal Funds Effective
Rate for any reason, including the inability or failure of
the Administrative Agent to obtain sufficient quotations in
accordance with the terms thereof, the Alternate Base Rate
shall be determined without regard to clause (b) of the
first sentence of this definition until the circumstances
giving rise to such inability no longer exist. Any change
in the Alternate Base Rate due to a change in the Prime Rate
or the Federal Funds Effective Rate shall be effective on
the effective date of such change in the Prime Rate or the
Federal Funds Effective Rate, respectively.
"APPLICABLE FACILITY FEE PERCENTAGE" shall mean on any
date the applicable percentage set forth below opposite the
applicable
<PAGE>7
Ratings or, under the circumstances specified
below, opposite the Leverage Ratio:
S&P/Moody's/Duff & Phelps
Rating; Leverage Ratio Facility Fee
---------------------------- -------------------
Category 1
------------
AA/Aa2/AA or higher; N/A .0625%
Category 2
------------
A-/A3/A-; less than 30% .080%
Category 3
-----------
BBB+/Baa1/BBB+; greater
than or equal to 30% but
less than 45% .100%
Category 4
-----------
BBB/Baa2/BBB; greater
than or equal to 45% but
less than 50% .120%
Category 5
-----------
BBB-/Baa3/BBB-; greater
than or equal to 50% but
less than 55% .175%
Category 6
-----------
BB+/Ba1/BB+ or lower; greater
than or equal to 55% .250%
For purposes of the foregoing, (i) if at least two Ratings
shall be available and the Ratings shall fall within
different Categories specified above, (A) if three Ratings
shall be available, the Applicable Facility Fee Percentage
shall be determined by reference to the lower of the two
highest Ratings (it being understood that if the two highest
Ratings shall be in the same Category, the Applicable
Facility Fee Percentage shall be determined by reference to
such Category) and (B) if two Ratings shall be available,
the Applicable Facility Fee Percentage shall be determined
by reference to the Category in which the lower of the two
Ratings falls; (ii) if only one Rating shall be available,
then the Applicable Facility Fee Percentage shall be
determined by reference to the lower (i.e., the numerically
higher) of (A) the Category in which that Rating falls or
(B) the Category
<PAGE>8
corresponding to the Leverage Ratio; and
(iii) if no Ratings shall be available, then the Applicable
Facility Fee Percentage shall be determined by reference to
the Leverage Ratio. If any Rating shall be changed (other
than as a result of a change in such rating agency's rating
system) such change shall be effective as of the date on
which it is first announced by the applicable rating agency.
For purposes of the foregoing, (i) the Leverage Ratio shall
be determined as of the end of each fiscal quarter of the
Company based on the financial statements of the Company
delivered for such fiscal quarter pursuant to Section 5.4
and the ratio so determined shall be effective from and
including the Determination Date immediately following such
fiscal quarter end to but excluding the next following
Determination Date and (ii) prior to the first Determination
Date, the Leverage Ratio shall be deemed to correspond to
Category 2; PROVIDED, HOWEVER, that the Leverage Ratio for
any period during which the Company shall have failed to
deliver the financial statements required by Section 5.4
after having received from the Administrative Agent notice
of such non-delivery shall be deemed for the purposes of
this definition to correspond to Category 6 until such time
as the Administrative Agent receives such financial
statements. Each change in the Applicable Facility Fee
Percentage shall apply during the period commencing on the
effective date of such change in the Ratings or the Leverage
Ratio, as applicable, and ending on the date immediately
preceding the effective date of the next such change. If
the rating system of Moody's, S&P or Duff & Phelps shall
change, the Company and the Banks shall negotiate in good
faith to amend the references to specific ratings in this
definition to reflect such changed rating system (and
pending or in the absence of any agreement the Applicable
Facility Fee Percentage will be determined by reference to
the other Rating or Ratings, if any).
"APPLICABLE MARGIN" shall mean on any date, with
respect to the Loans comprising any Eurodollar Loan or ABR
Loan, as the case may be, the applicable spread set forth
below opposite the applicable Ratings or, under the
circumstances specified below, opposite the Leverage Ratio:
S&P/Moody's/Duff & Phelps Eurodollar Loan ABR Loan
Rating; Leverage Ratio Spread Spread
-------------------------- ------------------ ----------
Category 1
------------
AA/Aa2/AA or higher; N/A .125% .000%
Category 2
------------
A-/A3/A- or higher;
less than 30% .170% .000%
<PAGE>9
Category 3
------------
BBB+/Baa1/BBB+; greater
than or equal to 30% but
less than 45% .200% .000%
Category 4
------------
BBB/Baa2/BBB; greater
than or equal to 45% but
less than 50% .230% .000%
Category 5
------------
BBB-/Baa3/BBB-; greater
than or equal to 50% but
less than 55% .275% .000%
Category 6
------------
BB+/Ba1/BB+ or lower;
greater than or equal to 55% .500% .000%
For purposes of the foregoing, (i) if at least two Ratings
shall be available and the Ratings shall fall within
different Categories specified above, (A) if three Ratings
shall be available, the Applicable Margin shall be
determined by reference to the lower of the two highest
Ratings (it being understood that if the two highest Ratings
shall be in the same Category, the Applicable Margin shall
be determined by reference to such Category) and (B) if two
Ratings shall be available, the Applicable Margin shall be
determined by reference to the Category in which the lower
of the two Ratings falls; (ii) if only one Rating shall be
available, then the Applicable Margin shall be determined by
reference to the lower (i.e., the numerically higher) of (A)
the Category in which that Rating falls or (B) the Category
corresponding to the Leverage Ratio; and (iii) if no Ratings
shall be available, then the Applicable Margin shall be
determined by reference to the Leverage Ratio. If any
Rating shall be changed (other than as a result of a change
in such rating agency's rating system) such change shall be
effective as of the date on which it is first announced by
the applicable rating agency. For purposes of the
foregoing, (i) the Leverage Ratio shall be determined as of
the end of each fiscal quarter of the Company based on the
financial statements of the Company delivered for such
fiscal quarter pursuant to Section 5.4 and the
<PAGE>10
ratio so determined shall be effective from and including the
Determination Date immediately following such fiscal quarter
end to but excluding the next following Determination Date
and (ii) prior to the first Determination Date, the Leverage
Ratio shall be deemed to correspond to Category 2; PROVIDED,
HOWEVER, that the Leverage Ratio for any period during which
the Company shall have failed to deliver the financial
statements required by Section 5.4 after having received
from the Administrative Agent notice of such non-delivery
shall be deemed for the purposes of this definition to
correspond to Category 6 until such time as the
Administrative Agent receives such financial statements.
Each change in the Applicable Margin shall apply during the
period commencing on the effective date of such change in
the Ratings or the Leverage Ratio, as applicable, and ending
on the date immediately preceding the effective date of the
next such change. If the rating system of Moody's, S&P or
Duff & Phelps shall change, the Company and the Banks shall
negotiate in good faith to amend the references to specific
ratings in this definition to reflect such changed rating
system (and pending or in the absence of any agreement the
Applicable Margin will be determined by reference to the
other Rating or Ratings, if any).
"ASSIGNMENT AND ACCEPTANCE" shall mean an assignment
and acceptance entered into by a Bank and an assignee, and
accepted by the Administrative Agent, in the form of EXHIBIT
C or such other form as shall be approved by the
Administrative Agent.
"ATTRIBUTABLE DEBT" shall mean, in connection with a
Sale and Lease-Back Transaction, the present value
(discounted in accordance with GAAP at the debt rate implied
in the lease) of the obligations of the lessee for rental
payments during the term of the applicable lease.
"BOARD" shall mean the Board of Governors of the
Federal Reserve System of the United States, or any
successor thereto.
"BORROWING" shall mean a group of Loans of a single
Type made by the Banks (or, in the case of a Competitive
Borrowing, by the Bank or Banks whose Competitive Bids have
been accepted pursuant to Section 2.3) on a single date and
as to which a single Interest Period is in effect.
"BUSINESS DAY" shall mean any day not a Saturday,
Sunday or legal holiday in the State of North Carolina on
which banks are open for business in Charlotte, North
Carolina and New York, New
<PAGE>11
York; provided, however, that, when used in connection with a
Eurodollar Loan, the term "Business Day" shall also exclude any
day on which banks are not open for dealings in dollar deposits
in the London Interbank Market.
"CAPITALIZED LEASE OBLIGATIONS" shall mean the
obligations to pay rent or other amounts under any lease of
(or other arrangement conveying the right to use) real
and/or personal property which obligations are required to
be classified and accounted for as a capital lease on a
balance sheet under GAAP, and, for the purposes hereof, the
amount of such obligations shall be the capitalized amount
thereof determined in accordance with GAAP.
A "CHANGE IN CONTROL" shall be deemed to have occurred
if (a) any person or group (within the meaning of Rule 13d-5
of the Securities and Exchange Commission as in effect on
the date hereof) other than Bruce C. Gottwald, Floyd D.
Gottwald, Jr. or members of their respective families
(together, the "Gottwalds"), or investment entities owned by
any of them, shall own directly or indirectly, beneficially
or of record, shares representing more than the greater of
(i) 20% and (ii) the percentage owned by the Gottwalds of
the aggregate ordinary voting power represented by the
issued and outstanding capital stock of the Company or any
corporation directly or indirectly Controlling the Company;
or (b) a majority of the seats (other than vacant seats) on
the board of directors of the Company or any corporation
directly or indirectly Controlling the Company shall at any
time be occupied by persons who were neither (i) nominated
by the management of the Company or by persons who were
members of the board of directors as of the Effective Date
or members elected by two thirds of such members, nor (ii)
appointed by directors so nominated; PROVIDED, HOWEVER, that
an event described in clause (a) above shall not constitute
a "Change in Control" if the acquisition of shares resulting
in ownership of in excess of the 20% threshold referred to
in such clause (a) shall have been approved, prior to the
acquisition of such shares or the commencement by the person
or group referred to in such clause (a) of a tender offer
for shares of the Company that would result, if successful,
in such person or group owning in excess of such 20%
threshold, by a majority of the members of the board of
directors of the Company who were either members of the
board of directors as of the date of this Agreement or
nominated or appointed as provided in clauses (b)(i) or (ii)
above.
<PAGE>12
"CODE" shall mean the Internal Revenue Code of 1986, as
the same may be amended from time to time.
"COMMITTMENT" shall mean, with respect to each Bank, the
Commitment of such Bank hereunder as set forth in Schedule
2.1 hereto, as the same may be permanently terminated,
reduced or extended from time to time pursuant to the
provisions of Section 2.10. The Commitments shall be deemed
permanently terminated on the Maturity Date.
"COMMITTED BORROWING" shall mean a borrowing consisting
of simultaneous Committed Loans from each of the Banks.
"COMMITTED BORROWING REQUEST" shall mean a request made
pursuant to Section 2.4 in the form of Exhibit A-5.
"COMMITTED LOANS" shall mean the revolving loans made
by the Banks to the Company pursuant to Section 2.4. Each
Committed Loan shall be a Eurodollar Committed Loan or an
ABR Loan.
"COMMITTED NOTE" shall mean a promissory note of the
Company in the form of Exhibit B-2 executed and delivered as
provided in Section 2.7.
"COMPETITIVE BID" shall mean an offer by a Bank to make
a Competitive Loan pursuant to Section 2.3.
"COMPETITIVE BID ACCEPT/REJECT LETTER" shall mean a
notification made by the Company pursuant to Section 2.3(d)
in the form of Exhibit A-4.
"COMPETITIVE BID RATE" shall mean, as to any
Competitive Bid made by a Bank pursuant to Section 2.3(b),
(i) in the case of a Eurodollar Competitive Loan, the
Margin, and (ii) in the case of a Fixed Rate Loan, the fixed
rate of interest offered by the Bank making such Competitive
Bid.
"COMPETITIVE BID REQUEST" shall mean a request made
pursuant to Section 2.3 in the form of EXHIBIT A-1.
"COMPETITIVE BORROWING" shall mean a borrowing
consisting of a Competitive Loan or concurrent Competitive
Loans from the Bank or Banks whose Competitive Bids for such
Borrowing have been accepted by the Company under the
bidding procedure described in Section 2.3.
<PAGE> 13
"COMPETITIVE LOAN" shall mean a Loan from a Bank to the
Company pursuant to the bidding procedure described in
Section 2.3. Each Competitive Loan shall be a Eurodollar
Competitive Loan or a Fixed Rate Loan.
"COMPETITIVE NOTE" shall mean a promissory note of the
Company in the form of EXHIBIT B-1 executed and delivered as
provided in Section 2.7.
"CONSOLIDATED" shall mean, as applied to any financial
or accounting term, such term determined on a consolidated
basis for the Company and the Subsidiaries in accordance
with generally accepted accounting principles, including
principles of consolidation, consistent with those applied
in the preparation of the Consolidated financial statements
referred to in Section 3.4.
"CONSOLIDATED CAPITALIZATION" shall mean, as of any
date, the sum of (a) Consolidated Shareholders' Equity and
(b) Consolidated Indebtedness, in each case at such date.
"CONSOLIDATED INDEBTEDNESS" shall mean, as of any date,
all Indebtedness of the Company and the Subsidiaries at such
date, computed and consolidated in accordance with GAAP.
"CONSOLIDATED SHAREHOLDERS' EQUITY" shall mean, as of
any date, the Shareholders' Equity of the Company and the
Subsidiaries at such date, computed and consolidated in
accordance with GAAP.
"CONTROL" shall mean the 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,
and "Controlling" and "Controlled" shall have meanings
correlative thereto.
"DEFAULT" shall mean any event or condition which upon
notice, lapse of time or both would constitute an Event of
Default.
"DESIGNATED SUBSIDIARY" shall mean any Subsidiary that
(a) has assets with a total market value not in excess of
$10,000 and (b) has not conducted any business or other
operations during the prior 12-month period.
"DETERMINATION DATE" shall mean the 60th day following
the end of each of the first three fiscal quarters in each
fiscal year
<PAGE>14
of the Company and the 120th day following the
end of each fiscal year of the Company.
"DOLLARS", "dollars" or "$" shall mean dollars of
lawful money of the United States of America.
"DUFF & PHELPS" shall mean Duff & Phelps Credit Rating
Co.
"EFFECTIVE DATE" shall mean the date hereof.
"ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as the same may be amended from time
to time.
"ERISA AFFILIATE" shall mean any trade or business
(whether or not incorporated) that, together with the
Company, is treated as a single employer under Section 414
of the Code.
"EURODOLLAR BORROWING" shall mean a Borrowing comprised
of Eurodollar Loans.
"EURODOLLAR COMMITTED LOAN" shall mean any Committed
Loan bearing interest at a rate determined by reference to
the LIBO Rate in accordance with the provisions of Article
II.
"EURODOLLAR COMPETITIVE LOAN" shall mean any
Competitive Loan bearing interest at a rate determined by
reference to the LIBO Rate in accordance with the provisions
of Article II.
"EURODOLLAR LOAN" shall mean any Eurodollar Competitive
Loan or Eurodollar Committed Loan.
"EVENT OF DEFAULT" shall have the meaning given to such
term in Article VII.
"EXECUTIVE OFFICER" shall mean an executive officer as
defined in Rule 13b-7 of the rules and regulations adopted
by the Securities and Exchange Commission under the
Securities Exchange Act of 1934, as amended.
"EXISTING CREDIT AGREEMENT" means that certain credit
agreement dated as of February 16, 1994 by and among the
Company, the Banks party thereto and NationsBank of North
Carolina, N.A., as Administrative Agent.
<PAGE>15
"FACILITY FEE" shall have the meaning assigned to such
term in Section 2.6(a) hereof.
"FEES" shall mean the Facility Fees and the
Administrative Fees.
"FINANCIAL OFFICER" shall mean the Chief Financial
Officer, the Vice Chairman of the Board, the Treasurer or
the Senior Vice President of Finance of the Company.
"FIXED RATE BORROWING" shall mean a Borrowing comprised
of Fixed Rate Loans.
"FIXED RATE LOAN" shall mean any Competitive Loan
bearing interest at a fixed percentage rate per annum
(expressed in the form of a decimal to no more than four
decimal places) specified by the Bank making such Loan in
its Competitive Bid.
"FOREIGN SUBSIDIARY" shall mean any Subsidiary
organized under the laws of any country or any political
subdivision of any country, except for Subsidiaries
organized under the laws of the United States of America or
Canada or any political subdivision of the United States of
America or Canada.
"GAAP" shall mean generally accepted accounting
principles, applied on a consistent basis.
"GOVERNMENTAL AUTHORITY" shall mean any Federal, state,
local, or foreign court or governmental agency, authority,
instrumentality or regulatory body.
"GUARANTEE" of or by any person shall mean any
obligation, contingent or otherwise, of such person
guaranteeing or having the economic effect of guaranteeing
any Indebtedness of any other person (the "primary obligor")
in any manner, whether directly or indirectly, and including
any obligation of such person, direct or indirect, (a) to
purchase or pay (or advance or supply funds for the purchase
or payment of) such Indebtedness or to purchase (or to
advance or supply funds for the purchase of) any security
for the payment of such Indebtedness, (b) to purchase
property, securities or services for the purpose of assuring
the owner of such Indebtedness of the payment of such
Indebtedness or (c) to maintain working capital, equity
capital or other financial statement condition or liquidity
of the primary obligor so as to enable the primary obligor
to pay such Indebtedness; PROVIDED,
<PAGE>16
HOWEVER, that the term Guarantee shall not include endorsements
for collection or deposit, in either case in the ordinary course
of business.
"INDEBTEDNESS" with respect to any person shall mean at
any time, 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
upon which interest charges are customarily paid, (iv) all
obligations of such person under conditional sale or other
title retention agreements relating to property purchased by
such person, (v) all obligations of such person issued or
assumed as the deferred purchase price of property or
services (other than accounts payable to suppliers incurred
in the ordinary course of business and not overdue), (vi)
all obligations of others secured by any Lien on property
owned or acquired by such person, whether or not the
obligations secured thereby have been assumed, (vii) all
Capitalized Lease Obligations of such person and (viii) all
Guarantees of such person.
"INTEREST PAYMENT DATE" shall mean (i) as to any
Eurodollar Loan for which the Interest Period is 1, 2 or 3
months, the last day of the Interest Period, (ii) as to any
Eurodollar Loan for which the Interest Period is 6 months,
the last day of the Interest Period and the date that would
be the last day of an Interest Period commencing on the same
date but having a duration of 3 months, (iii) as to any ABR
Loan, the last day of March, June, September and December in
each year, or if such day is not a Business Day, the next
succeeding Business Day and (iv) as to any Fixed Rate Loan,
the last day of the Interest Period applicable thereto.
"INTEREST PERIOD" shall mean: (a) as to any Eurodollar
Borrowing, the period commencing on the date of such
Borrowing and ending on the numerically corresponding day
(or if there is no corresponding day, the last day) in the
calendar month that is 1, 2, 3 or 6 months thereafter, as
the Company may elect, and thereafter, each period
commencing on the last day of the next preceding Interest
Period for such Eurodollar Borrowing and ending on the
numerically corresponding day (or if there is no
corresponding day, the last day) in the calendar month that
is 1, 2, 3 or 6 months thereafter, as the Company may elect,
(b) as to any ABR Borrowing, the period commencing on the
date of such Borrowing and ending on the Maturity Date or
the date of prepayment of such Borrowing and (c) as to any
Fixed Rate
<PAGE>17
Borrowing, the period commencing on the date of
such Borrowing and ending on the date specified in the
Competitive Bids in which the offer to make the Fixed Rate
Loans comprising such Borrowing were extended, which shall
not be earlier than 7 days after the date of such Borrowing
or later than 360 days after the date of such Borrowing;
PROVIDED, HOWEVER, that if any Interest Period would end on
a day which shall not be a Business Day, such Interest
Period shall be extended to the next succeeding Business Day
unless, with respect to Eurodollar Loans only, such next
succeeding Business Day would fall in the next calendar
month, in which case such Interest Period shall end on the
next preceding Business Day. Interest shall accrue from and
including the first day of an Interest Period to but
excluding the last day of such Interest Period.
"LEVERAGE RATIO" shall mean, as of any date, the ratio
of (a) Consolidated Indebtedness on such date to (b)
Consolidated Capitalization on such date.
"LIBO RATE" shall mean, with respect to any Eurodollar
Borrowing for any Interest Period, an interest rate per
annum (rounded upwards, if necessary, to the next 1/16 of
1%) equal to the rate at which dollar deposits approximately
equal in principal amount to (i) in the case of a Committed
Borrowing the Administrative Agent's portion of such
Eurodollar Borrowing and (ii) in the case of a Competitive
Borrowing, a principal amount that would have been the
Administrative Agent's portion of such Competitive Borrowing
had such Competitive Borrowing been a Committed Borrowing,
and for the maturity equal to the applicable Interest Period
are offered by major banks to the principal London office of
the Administrative Agent in immediately available funds in
the London Interbank Market for Eurodollars at approximately
11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
"LIEN" shall mean any mortgage, pledge, security
interest, encumbrance, lien or charge of any kind whatsoever
(including any conditional sale or other title retention
agreement, any lease in the nature thereof, and the filing
of or agreement to give any financing statement under the
Uniform Commercial Code of any jurisdiction).
"LOAN" shall mean a Competitive Loan or a Committed
Loan, whether made as a Eurodollar Loan, an ABR Loan or a
Fixed Rate Loan, as permitted hereby.
<PAGE>18
"MARGIN" shall mean, as to any Eurodollar Competitive
Loan, the margin (expressed as a percentage rate per annum
in the form of a decimal to no more than four decimal
places) to be added to or subtracted from the LIBO Rate in
order to determine the interest rate applicable to such
Loan, as specified in the Competitive Bid relating to such
Loan.
"MARGIN STOCK" shall mean "margin stock" as defined in
Regulation U of the Board.
"MATERIAL ADVERSE EFFECT" shall mean a materially
adverse effect on the business, assets, condition (financial
or otherwise) or results of operations of the Company and
the Subsidiaries taken as a whole.
"MATURITY DATE" shall mean September 24, 2001 or any
anniversary of such date to which the Maturity Date shall
have been extended pursuant to Section 2.10(d).
"MOODY'S" shall mean Moody's Investors Service, Inc.
"MULTIEMPLOYER PLAN" shall mean a multiemployer plan as
defined in Section 4001(a)(3) of ERISA to which the Company
or any ERISA Affiliate (other than one considered an ERISA
Affiliate only pursuant to subsection (m) or (o) of Section
414 of the Code) is making or accruing an obligation to make
contributions, or has within any of the preceding five plan
years made or accrued an obligation to make contributions.
"NATIONSBANK" shall mean NationsBank, N.A.
"NOTE" or "NOTES" shall mean a Competitive Note or a
Committed Note of the Company executed and delivered under
this Agreement.
"OLEFINS TRANSACTION" shall mean the sale by the
Company on March 1, 1996 of the Company's alpha olefins,
poly alpha olefins and synthetic alcohol businesses to Amoco
Chemical Company for approximately $500 million, including
plant and equipment (primarily located in Pasadena, Texas,
Deer Park, Texas and Feluy, Belgium), other assets,
inventory and accounts receivable, net of expenses and trade
accounts payable retained and paid to date by the Company,
and certain business-related liabilities transferred at the
date of sale.
<PAGE>19
"PBGC" shall mean the Pension Benefit Guaranty
Corporation referred to and defined in ERISA.
"PERSON" shall mean any natural person, corporation,
division of a corporation, business trust, joint venture,
association, company, partnership or government, or any
agency or political subdivision thereof.
"PLAN" shall mean any employee pension benefit plan
(other than a Multiemployer Plan) subject to the provisions
of Title IV of ERISA or Section 412 of the Code that is
maintained for current or former employees, or any
beneficiary thereof, of the Company or any ERISA Affiliate.
"RATINGS" shall mean the ratings applicable to the
senior, unsecured, non-credit-enhanced, long-term debt of
the Company established by S&P, Moody's and Duff & Phelps.
"REGULATION D" shall mean Regulation D of the Board as
from time to time in effect and all official rulings and
interpretations thereunder or thereof.
"REGULATION G" shall mean Regulation G of the Board as
from time to time in effect and all official rulings and
interpretations thereunder or thereof.
"REGULATION U" shall mean Regulation U of the Board as
from time to time in effect and all official rulings and
interpretations thereunder or thereof.
"REGULATION X" shall mean Regulation X of the Board as
from time to time in effect and all official rulings and
interpretations thereunder or thereof.
"REPORTABLE EVENT" shall mean any reportable event as
defined in Section 4043(b) of ERISA or the regulations
issued thereunder with respect to a Plan (other than a Plan
maintained by an ERISA Affiliate that is considered an ERISA
Affiliate only pursuant to subsection (m) or (o) of Section
414 of the Code).
"REQUIRED BANKS shall mean a Bank or Banks having
Commitments representing more than 50% of the Total
Commitment or, for purposes of acceleration pursuant to
clause (ii) of Article VII, Banks holding Loans representing
more than 50% of the aggregate principal amount of the Loans
outstanding.
<PAGE>20
"S&P" shall mean Standard & Poor's Corporation.
"SALE AND LEASE-BACK TRANSACTION" shall mean, with
respect to the Company or any Subsidiary, any arrangement,
directly or indirectly, with any person whereby the Company
or such Subsidiary shall sell or transfer any property, real
or personal, used or useful in its business, whether now
owned or hereafter acquired, and thereafter rent or lease
such property or other property which it intends to use for
substantially the same purpose or purposes as the property
being sold or transferred.
"SHAREHOLDERS' EQUITY" shall mean, for any corporation:
the sum of (i) its capital stock outstanding taken at par
value, (ii) its paid-in capital and (iii) its retained
earnings, less its treasury stock, each to be determined in
accordance with generally accepted accounting principles
consistent with those applied in the preparation of the
Financial Statements.
"subsidiary" shall mean, with respect to any person
(herein referred to as the "parent"), any corporation,
partnership, association or other business entity (a) of
which securities or other ownership interests representing
more than 50% of the equity or more than 50% of the ordinary
voting power or more than 50% of the general partnership
interests are, at the time any determination is being made,
owned, controlled or held, or (b) which is, at the time any
determination is made, otherwise Controlled, by the parent
or one or more subsidiaries of the parent or by the parent
and one or more subsidiaries of the parent.
"SUBSIDIARY" shall mean a subsidiary of the Company.
"TOTAL COMMITMENT" shall mean at any time the aggregate
amount of the Banks' Commitments, as in effect at such time.
"TRANSFERRED BUSINESSES" shall have the meaning set
forth in the definition of Financial Statements.
"TYPE", when used in respect of any Loan or Borrowing,
shall refer to the Rate by reference to which interest on
such Loan or on the Loans comprising such Borrowing is
determined. For purposes hereof, "Rate" shall include the
LIBO Rate, the Alternate Base Rate and the Fixed Rate.
<PAGE>21
"WITHDRAWAL LIABILITY" shall mean liability to a
Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan, as such terms are
defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.2. TERMS GENERALLY. The definitions in Section
1.1 shall apply equally to both the singular and plural forms of
the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter
forms. All references herein to Articles, Sections, Exhibits and
Schedules shall be deemed references to Articles and Sections of,
and Exhibits and Schedules to, this Agreement unless the context
shall otherwise require. Except as otherwise expressly provided
herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to
time; provided, however, that if the Company notifies the
Administrative Agent that the Company wishes to amend any
covenant in Article VI or any related definition to eliminate the
effect of any change in GAAP occurring after the date hereof on
the operation of such covenant (or if the Administrative Agent
notifies the Company that the Required Banks wish to amend
Article VI or any related definition for such purpose), then the
Company's compliance with such covenant shall be determined on
the basis of GAAP in effect immediately before the relevant
change in GAAP became effective, until either such notice is
withdrawn or such covenant is amended in a manner satisfactory to
the Company and the Required Banks.
ARTICLE II
THE CREDITS
SECTION 2.1. Commitments. Subject to the terms and
conditions and relying upon the representations and warranties
herein set forth, each Bank, severally and not jointly, agrees to
make Committed Loans to the Company, at any time or from time to
time on or after the Effective Date and until the Maturity Date
or until the Commitment of such Bank shall have been terminated
in accordance with the terms hereof, in an aggregate principal
amount at any time outstanding not exceeding the amount of such
Bank's Commitment minus the amount by which the Competitive Loans
outstanding at such time shall be deemed to have used such
Commitment pursuant to Section 2.15, subject, however, to the
conditions that (a) at no time shall (i) the sum of (x) the
outstanding aggregate principal amount of all Committed Loans
made by all Banks plus (y) the outstanding aggregate principal
amount of all Competitive Loans made by all Banks exceed (ii) the
Total Commitment and (b) at all
<PAGE>22
times the outstanding aggregate rincipal amount of all
Committed Loans made by each Bank shall equal the product of
(i) the percentage which its Commitment
represents of the Total Commitment times (ii) the outstanding
aggregate principal amount of all Committed Loans made pursuant
to Section 2.4. Each Bank's Commitment is set forth opposite its
respective name in Schedule 2.1. Such Commitments may be
terminated or reduced from time to time pursuant to Section 2.10.
Within the foregoing limits, the Company may borrow, repay and
reborrow hereunder on or after the Effective Date and prior to
the Maturity Date, subject to the terms, provisions and
limitations set forth herein. Upon the reasonable request of any
Bank, the Administrative Agent shall notify such Bank of the
aggregate principal amount of Competitive Loans and Committed
Loans outstanding at such time. Nothing contained in this
Section 2.1 shall preclude the Company from borrowing on a
committed or a competitive basis outside of this Agreement so
long as any such borrowing is not otherwise prohibited hereunder.
SECTION 2.2. Loans. (a) Each Committed Loan shall be made
as part of a Borrowing consisting of Loans made by the Banks
ratably in accordance with their Commitments; provided, however,
that the failure of any Bank to make any Committed Loan shall not
in itself relieve any other Bank of its obligation to lend
hereunder (it being understood, however, that no Bank shall be
responsible for the failure of any other Bank to make any Loan
required to be made by such other Bank). Each Competitive Loan
shall be made in accordance with the procedures set forth in
Section 2.3. The Loans comprising any Borrowing shall be in a
minimum aggregate principal amount of $5,000,000 and in integral
multiples of $1,000,000 in excess thereof, in the case of
Competitive Loans, or $10,000,000 and in integral multiples of
$1,000,000 in excess thereof, in the case of Committed Loans (or,
in either case, an aggregate principal amount equal to the
remaining balance of the available Commitments).
(b)Each Competitive Borrowing shall be comprised
entirely of Eurodollar Competitive Loans or Fixed Rate
Loans, and each Committed Borrowing shall be comprised en-
tirely of Eurodollar Committed Loans or ABR Loans, as the
Company may request pursuant to Section 2.3 or 2.4, as
applicable. Each Bank may at its option fulfill its
Commitment with respect to any Eurodollar Loan by causing
any domestic or foreign branch or Affiliate of such Bank to
make such Loan; provided that (i) any exercise of such
option shall not affect the obligation of the Company to
repay such Loan in accordance with the terms of this
Agreement and the applicable Note and (ii) the Company shall
not be liable for increased costs
<PAGE>23
under Section 2.12, 2.13 or 2.17 to the extent that
(A) such costs could be avoided
by the use of a different branch or Affiliate to make
Eurodollar Loans and (B) such use would not, in the judgment
of such Bank, entail any expense for which such Bank shall
not be indemnified hereunder or otherwise be disadvantageous
to it. Borrowings of more than one Type may be outstanding
at the same time; provided, however, that the Company shall
not be entitled to request any Borrowing which, if made,
would result in an aggregate of more than five separate
Eurodollar Committed Loans of any Bank being outstanding
hereunder at any one time. For purposes of the foregoing,
Loans having different Interest Periods, regardless of
whether they commence on the same date, shall be considered
separate Loans.
(c)Subject to Section 2.5, each Bank shall make each
Loan to be made by it hereunder on the proposed date thereof
by wire transfer of immediately available funds to the
Administrative Agent in Charlotte, North Carolina, not later
than 2:00 p.m., North Carolina time, and the Administrative
Agent shall by 3:00 p.m., North Carolina time, credit the
amounts so received to the general deposit account of the
Company with the Administrative Agent or, if a Borrowing
shall not occur on such date because any condition precedent
herein specified shall not have been met, return the amounts
so received to the respective Banks. Competitive Loans
shall be made by the Bank or Banks whose Competitive Bids
therefor are accepted pursuant to Section 2.3 in the amounts
so accepted and Committed Loans shall be made by the Banks
pro rata in accordance with Section 2.15. Unless the
Administrative Agent shall have received notice from a Bank
prior to the date of any Borrowing that such Bank will not
make available to the Administrative Agent such Bank's
portion of such Borrowing, the Administrative Agent may
assume that such Bank has made such portion available to the
Administrative Agent on the date of such Borrowing in
accordance with this paragraph (c) and the Administrative
Agent may, in reliance upon such assumption, make available
to the Company on such date a corresponding amount. If and
to the extent that such Bank shall not have made such
portion available to the Administrative Agent, such Bank and
the Company severally agree to repay to the Administrative
Agent forthwith on demand such corresponding amount,
together with interest thereon, for each day from the date
such amount is made available to the Company until the date
such amount is repaid to the Administrative Agent at (i) in
the case of the Company, the interest rate applicable at the
time to the Loans comprising such Borrowing and (ii) in the
case of such Bank, the Federal Funds
<PAGE>24
Effective Rate. If such Bank shall repay to the
Administrative Agent such corresponding amount, such
amount shall constitute such Bank's Loan as part of such
Borrowing for purposes of this Agreement.
(d)Notwithstanding any other provision of this
Agreement, the Company shall not be entitled to request any
Committed Borrowing if the Interest Period requested with
respect thereto would end after the Maturity Date with
respect to any Bank.
SECTION 2.3. Competitive Bid Procedure.
(a)The Company may request the Banks to make
Competitive Bids in respect of an aggregate amount of
Competitive Borrowings at any time outstanding not in excess
of (i) the Total Commitment in effect at such time less (ii)
the aggregate Committed Borrowings outstanding at such time.
In order to request Competitive Bids, the Company shall hand
deliver or telecopy to the Administrative Agent a duly com-
pleted Competitive Bid Request in the form of Exhibit A-1
hereto, to be received by the Administrative Agent (i) in
the case of a Eurodollar Competitive Borrowing, not later
than 10:00 a.m., North Carolina time, four Business Days
before a proposed Competitive Borrowing and (ii) in the case
of a Fixed Rate Borrowing, not later than 10:00 a.m., North
Carolina time, one Business Day before a proposed Competi-
tive Borrowing. No ABR Loan shall be requested in, or made
pursuant to, a Competitive Bid Request. A Competitive Bid
Request that does not conform substantially to the format of
Exhibit A-1 may be rejected in the Administrative Agent's
sole discretion, and the Administrative Agent shall promptly
notify the Company of such rejection by telecopier. Such
request shall in each case refer to this Agreement and
specify (x) whether the Borrowing then being requested is to
be a Eurodollar Borrowing or a Fixed Rate Borrowing, (y) the
date of such Borrowing (which shall be a Business Day) and
the aggregate principal amount thereof which shall be in a
minimum principal amount of $5,000,000 and in integral
multiples of $1,000,000 in excess thereof, and (z) the
Interest Period with respect thereto (which may not end
after the Maturity Date (as such date may have been extended
pursuant to Section 2.10)). Promptly after its receipt of a
Competitive Bid Request that is not rejected as aforesaid,
the Administrative Agent shall invite by telecopier (in the
form set forth in Exhibit A-2 hereto) the Banks to bid, on
the terms and conditions of this Agreement, to make
Competitive Loans pursuant to the Competitive Bid Request.
<PAGE>25
(b)Each Bank may, in its sole discretion, make one or
more Competitive Bids to the Company responsive to any
Competitive Bid Request; provided, however, that no Bank may
make a Competitive Bid in response to any Competitive Bid
Request for which the Interest Period would end after the
Maturity Date with respect to such Bank. Each Competitive
Bid by a Bank must be received by the Administrative Agent
via telecopier, in the form of Exhibit A-3 hereto, (i) in
the case of a Eurodollar Competitive Borrowing, not later
than 9:30 a.m., North Carolina time, three Business Days
before a proposed Competitive Borrowing and (ii) in the case
of a Fixed Rate Borrowing, not later than 9:30 a.m. North
Carolina time, on the day of a proposed Competitive
Borrowing. Multiple bids will be accepted by the
Administrative Agent. Competitive Bids that do not conform
substantially to the format of Exhibit A-3 may be rejected
by the Administrative Agent after conferring with, and upon
the instruction of, the Company, and the Administrative
Agent shall notify the Bank making such nonconforming bid of
such rejection as soon as practicable. Each Competitive Bid
shall refer to this Agreement and specify (x) the principal
amount (which shall be in a minimum principal amount of
$5,000,000 and in integral multiples of $1,000,000 in excess
thereof and which may equal the entire principal amount of
the Competitive Borrowing requested by the Company) of the
Competitive Loan or Loans that the Bank is willing to make
to the Company, (y) the Competitive Bid Rate or Rates at
which the Bank is prepared to make the Competitive Loan or
Loans and (z) the Interest Period and the last day thereof.
If any Bank shall elect not to make a Competitive Bid, such
Bank shall so notify the Administrative Agent via telecopier
(I) in the case of Eurodollar Competitive Loans, not later
than 9:30 a.m., North Carolina time, three Business Days
before a proposed Competitive Borrowing, and (II) in the
case of Fixed Rate Loans, not later than 9:30 a.m., North
Carolina time, on the day of a proposed Competitive
Borrowing; provided, however, that failure by any Bank to
give such notice shall not cause such Bank to be obligated
to make any Competitive Loan as part of such Competitive
Borrowing. A Competitive Bid submitted by a Bank pursuant
to this paragraph (b) shall be irrevocable.
(c)The Administrative Agent shall promptly notify the
Company by telecopier of all the Competitive Bids made, the
Competitive Bid Rate, the Interest Period and the principal
amount of each Competitive Loan in respect of which a
Competitive Bid was made and the identity of the Bank that
made each bid. The Administrative Agent shall send a copy
of all Competitive Bids to
<PAGE>26
the Company for its records as soon as practicable after
completion of the bidding process set forth in this Section 2.3.
(d)The Company may in its sole and absolute
discretion, subject only to the provisions of this paragraph
(d), accept or reject any Competitive Bid referred to in
paragraph (c) above. The Company shall notify the
Administrative Agent by telephone, confirmed by telecopier
in the form of a Competitive Bid Accept/Reject Letter,
whether and to what extent it has decided to accept or
reject any of or all the bids referred to in paragraph (c)
above, (x) in the case of a Eurodollar Competitive
Borrowing, not later than 10:30 a.m., North Carolina time,
three Business Days before a proposed Competitive Borrowing,
and (y) in the case of a Fixed Rate Borrowing, not later
than 10:30 a.m., North Carolina time, on the day of a
proposed Competitive Borrowing; provided, however, that (i)
the failure by the Company to give such notice shall be
deemed to be a rejection of all the bids referred to in
paragraph (c) above, (ii) the Company shall not accept a bid
made at a particular Competitive Bid Rate if the Company has
decided to reject a bid made at a lower Competitive Bid
Rate, (iii) the aggregate amount of the Competitive Bids
accepted by the Company shall not exceed the principal
amount specified in the Competitive Bid Request, (iv) if the
Company shall accept a bid or bids made at a particular
Competitive Bid Rate but the amount of such bid or bids
shall cause the total amount of bids to be accepted by the
Company to exceed the amount specified in the Competitive
Bid Request, then the Company shall accept a portion of such
bid or bids in an amount equal to the amount specified in
the Competitive Bid Request less the amount of all other
Competitive Bids accepted with respect to such Competitive
Bid Request, which acceptance, in the case of multiple bids
at such Competitive Bid Rate, shall be made pro rata in
accordance with the amount of each such bid at such
Competitive Bid Rate, and (v) except pursuant to clause (iv)
above, no bid shall be accepted for a Competitive Loan
unless such Competitive Loan is in a minimum principal
amount of $5,000,000 and in integral multiples of $1,000,000
in excess thereof; provided further, however, that if a
Competitive Loan must be in an amount less than $5,000,000
because of the provisions of clause (iv) above, such
Competitive Loan may be for a minimum of $500,000 or any
integral multiple thereof, and in calculating the pro rata
allocation of acceptances of portions of multiple bids at a
particular Competitive Bid Rate pursuant to clause (iv) the
amounts shall be rounded to integral multiples of $500,000
in a manner which shall be in the discretion of the Company.
A notice
<PAGE>27
given by the Company pursuant to this paragraph (d)
shall be irrevocable.
(e)The Administrative Agent shall promptly notify
each bidding Bank whether or not its Competitive Bid has
been accepted (and if so, in what amount and at what
Competitive Bid Rate) by telecopy sent by the Administrative
Agent, and each successful bidder will thereupon become
bound, subject to the other applicable conditions hereof, to
make the Competitive Loan in respect of which its bid has
been accepted.
(f)A Competitive Bid Request shall not be made within
five Business Days after the date of any previous
Competitive Bid Request.
(g)If NationsBank, N.A. shall elect to submit a
Competitive Bid in its capacity as a Bank, it shall submit
such bid directly to the Company one half of an hour earlier
than the latest time at which the other Banks are required
to submit their bids to the Administrative Agent pursuant to
paragraph (b) above.
(h)All notices required by this Section 2.3 shall be
given in accordance with Section 9.1.
SECTION 2.4. Committed Borrowing Procedure. In order to
request a Committed Borrowing, the Company shall hand deliver or
telecopy (or notify by telephone and promptly confirm by hand
delivery or telecopy) to the Administrative Agent the information
requested by the form of Committed Borrowing Request attached as
Exhibit A-5 hereto (a) in the case of a Eurodollar Committed
Borrowing, not later than 10:30 a.m., North Carolina time, three
Business Days before a proposed Borrowing and (b) in the case of
an ABR Borrowing, not later than 10:30 a.m., North Carolina time,
on the day of a proposed Borrowing. No Fixed Rate Loan shall be
requested or made pursuant to a Committed Borrowing Request.
Such notice shall be irrevocable and shall in each case specify
(i) whether the Borrowing then being requested is to be a
Eurodollar Committed Borrowing or an ABR Borrowing; (ii) the date
of such Committed Borrowing (which shall be a Business Day) and
the amount thereof; and (iii) if such Borrowing is to be a
Eurodollar Committed Borrowing, the Interest Period with respect
thereto. If no election as to the Type of Committed Borrowing is
specified in any such notice, then the requested Committed
Borrowing shall be an ABR Borrowing. If no Interest Period with
respect to any Eurodollar Committed Borrowing is specified in any
such notice, then the Company shall be deemed to have selected an
Interest Period of one month's duration. If the
<PAGE>28
Company shall not have given notice in accordance
with this Section 2.4 of its
election to refinance a Committed Borrowing prior to the end of
the Interest Period in effect for such Borrowing, then the
Company shall (unless such Borrowing is repaid at the end of such
Interest Period) be deemed to have given notice of an election to
refinance such Borrowing with an ABR Borrowing. The
Administrative Agent shall promptly advise the Banks of any
notice given pursuant to this Section 2.4 and of each Bank's
portion of the requested Borrowing.
SECTION 2.5. Refinancings. The Company may refinance all
or any part of any Borrowing with a Borrowing of the same or a
different Type made pursuant to Section 2.3 or Section 2.4,
subject to the conditions and limitations set forth herein and
elsewhere in this Agreement, including refinancings of
Competitive Borrowings with Committed Borrowings and Committed
Borrowings with Competitive Borrowings. Any Borrowing or part
thereof so refinanced shall be deemed to be repaid in accordance
with Section 2.7 with the proceeds of a new Borrowing hereunder
and the proceeds of the new Borrowing, to the extent they do not
exceed the principal amount of the Borrowing being refinanced,
shall not be paid by the Banks to the Administrative Agent or by
the Administrative Agent to the Company pursuant to Section
2.2(c); provided, however, that (i) if the principal amount
extended by a Bank in a refinancing is greater than the principal
amount extended by such Bank in the Borrowing being refinanced,
then such Bank shall pay such difference to the Administrative
Agent for distribution to the Banks described in (ii) below, (ii)
if the principal amount extended by a Bank in the Borrowing being
refinanced is greater than the principal amount being extended by
such Bank in the refinancing, the Administrative Agent shall
return the difference to such Bank out of amounts received
pursuant to (i) above, and (iii) to the extent any Bank fails to
pay the Administrative Agent amounts due from it pursuant to (i)
above, any Loan or portion thereof being refinanced with such
amounts shall not be deemed repaid in accordance with Section 2.7
and shall be payable by the Company.
SECTION 2.6. Fees.
(a) The Company agrees to pay to each Bank, through
the Administrative Agent, on each March 31, June 30,
September 30 and December 31 and on the date on which the
Commitment of such Bank shall be reduced or terminated as
provided herein (including pursuant to Section 9.17), a
facility fee (a "Facility Fee") at a rate per annum equal to
the Applicable Facility Fee Percentage from time to time in
effect on the average daily amount of such Bank's Commitment
(whether used or unused) during the preceding
<PAGE>29
quarter (or shorter period commencing with
the Effective Date or ending
with the Maturity Date or any date on which the Commitment
of such Bank shall be terminated). All Facility Fees shall
be computed on the basis of the actual number of days
elapsed in a year of 360 days. The Facility Fee due to each
Bank shall commence to accrue on the Effective Date, and
shall cease to accrue on the earlier of the Maturity Date
and the termination of the Commitment of such Bank as
provided herein.
(b)The Company agrees to pay the Administrative
Agent, for its own account, (i) administrative fees at the
times and in the amounts agreed upon between the Company and
the Administrative Agent and (ii) such Competitive Bid
auction fees as shall be agreed upon by the Company and the
Administrative Agent from time to time (collectively, the
"Administrative Fees").
(c)All Fees shall be paid on the dates due, in
immediately available funds, to the Administrative Agent for
distribution, if and as appropriate, among the Banks. Once
paid, none of the Fees shall be refundable under any
circumstances.
SECTION 2.7. Notes; Repayment of Loans. The Competitive
Loans made by each Bank shall be evidenced by a single
Competitive Note duly executed on behalf of the Company, dated
the Effective Date, in substantially the form attached hereto as
Exhibit B-1 with the blanks appropriately filled, payable to such
Bank in a principal amount equal to the Total Commitment. The
Committed Loans made by each Bank shall be evidenced by a single
Committed Note duly executed on behalf of the Company, dated the
Effective Date, in substantially the form attached hereto as
Exhibit B-2 with the blanks appropriately filled, payable to such
Bank in a principal amount equal to the Commitment of such Bank.
Each Competitive Note and each Committed Note shall bear interest
from the date thereof on the outstanding principal balance
thereof as set forth in Section 2.8. Each Bank shall, and is
hereby authorized by the Company to, endorse on the schedule
attached to the relevant Note held by such Bank (or on a
continuation of such schedule attached to each such Note and made
a part thereof), or otherwise to record in such Bank's internal
records, an appropriate notation evidencing the date and amount
of each Competitive Loan or Committed Loan, as applicable, of
such Bank, each payment or prepayment of principal of any
Competitive Loan or Committed Loan, as applicable, and the other
information provided for on such schedule; provided, however,
that the failure of any Bank to make such a notation or any error
therein shall not in any manner affect the obligation of the
Company to repay the Competitive Loans or Committed Loans, as
applicable, made by such Bank
<PAGE>30
in accordance with the terms of the
relevant Note. The outstanding principal balance of each
Competitive Loan and Committed Loan, as evidenced by the relevant
Note, shall be payable on the last day of the Interest Period
applicable to such Loan and on the Maturity Date.
SECTION 2.8. Interest on Loans.
(a)Subject to the provisions of Section 2.9, the
Loans comprising each ABR Borrowing shall bear interest
(computed on the basis of the actual number of days elapsed
over a year of 365 or 366 days, as the case may be, when
determined by reference to the Prime Rate and over a year of
360 days at all other times) at a rate per annum equal to
the Alternate Base Rate plus the Applicable Margin.
(b)Subject to the provisions of Section 2.9, the
Loans comprising each Eurodollar Borrowing shall bear
interest (computed on the basis of the actual number of days
elapsed over a year of 360 days) at a rate per annum equal
to (i) in the case of each Eurodollar Committed Loan, the
LIBO Rate for the Interest Period in effect for such
Borrowing plus the Applicable Margin, and (ii) in the case
of each Eurodollar Competitive Loan, the LIBO Rate for the
Interest Period in effect for such Borrowing plus the Margin
offered by the Bank making such Loan and accepted by the
Company pursuant to Section 2.3.
(c)Subject to the provisions of Section 2.9, each
Fixed Rate Loan shall bear interest at a rate per annum
(computed on the basis of the actual number of days elapsed
over a year of 360 days) equal to the fixed rate of interest
offered by the Bank making such Loan and accepted by the
Company pursuant to Section 2.3.
(d)Interest on each Loan shall be payable on each
Interest Payment Date applicable to such Loan. The LIBO
Rate or the Alternate Base Rate for each Interest Period or
day within an Interest Period shall be determined by the
Administrative Agent, and such determination shall be
conclusive absent manifest error.
SECTION 2.9. Additional Interest; Alternate Rate of
Interest.
(a)If the Company shall default in the payment of the
principal of or interest on any Loan or any other amount
becoming due hereunder, the Company shall on demand from
time to time pay interest on any overdue payment of
principal and other amounts
<PAGE>31
(other than interest) and, to
the extent permitted by law, on overdue payments of interest
up to the date of actual payment (after as well as before
judgment):
(i)in the case of principal of or interest
on an ABR Loan or a Eurodollar Loan, at a rate
determined by the Administrative Agent (such
determination to be conclusive and binding on the
Company) to be 1% per annum above the rate which would
otherwise be payable on such Loans in accordance with
the provisions herein; and
(ii)in the case of any other amount payable
hereunder (other than principal of or interest on any
Loan referred to in clause (i) above), at a rate 1% per
annum above the Alternate Base Rate.
(b)In the event, and on each occasion, that on the
day two Business Days prior to the commencement of any
Interest Period for a Eurodollar Loan, the Administrative
Agent shall have determined (which determination shall be
conclusive and binding upon the Company) that dollar
deposits in the principal amount of such Eurodollar Loan are
not generally available in the London Interbank Market, or
that the rate at which such dollar deposits are being
offered will not adequately and fairly reflect the cost to
the Banks of making or maintaining the principal amount of
such Eurodollar Loan during such Interest Period, or that
reasonable means do not exist for ascertaining the LIBO
Rate, the Administrative Agent shall, as soon as practicable
thereafter, give written, telegraphic or telephonic notice
of such determination to the Company and the Banks, and any
request by the Company for a Eurodollar Loan or for
conversion to or maintenance of a Eurodollar Loan pursuant
to the terms of this Agreement shall be deemed a request for
an ABR Borrowing. After such notice shall have been given
and until the circumstances giving rise to such notice no
longer exist, each request for a Eurodollar Loan shall be
deemed to be a request for an ABR Borrowing. Each
determination by the Administrative Agent hereunder shall be
conclusive absent manifest error.
SECTION 2.10. Termination, Reduction and Extension of
Commitments.
(a)The Commitments shall be automatically terminated
on the Maturity Date.
<PAGE>32
(b)Upon at least three Business Days' prior
irrevocable written or telecopy notice to the Administrative
Agent, the Company may at any time in whole permanently
terminate, or from time to time in part permanently reduce,
the Total Commitment; provided, however, that (i) each
partial reduction of the Total Commitment shall be in a
minimum principal amount of $10,000,000 and in integral
multiples thereof and (ii) no such termination or reduction
shall be made which would reduce the Total Commitment to an
amount less than the aggregate outstanding principal amount
of the Competitive Loans.
(c)Each reduction in the Total Commitment hereunder
shall be made ratably among the Banks in accordance with
their respective Commitments. The Company shall pay to the
Administrative Agent for the account of the Banks, on the
date of each termination or reduction, the Facility Fees on
the amount of the Commitments so terminated or reduced
accrued to the date of such termination or reduction.
(d) Not later than the date 60 days prior to the first
or any subsequent anniversary of the date hereof, the
Company may deliver to the Administrative Agent (which shall
promptly transmit to each Bank) a notice requesting that the
Commitments be extended to the first anniversary of the
Maturity Date. Within 30 days after its receipt of any such
notice, each Bank shall notify the Administrative Agent of
its willingness or unwillingness so to extend its
Commitment. Any Bank that shall fail so to notify the
Administrative Agent within such period shall be deemed to
have declined to extend its Commitment. If Banks holding a
majority in amount of the Commitments agree to extend their
Commitments, the Administrative Agent shall so notify the
Company and each Bank that shall have consented to such
request, whereupon (i) the respective Commitments of such
consenting Banks and each other Bank that shall consent to
the extension of its Commitment prior to the expiration of
its respective 30-day period shall without further act be
extended to the first anniversary of the Maturity Date at
the time in effect, (ii) the term "Maturity Date" shall
thenceforth mean, as to the Loans of such consenting Banks,
such first anniversary and (iii) the Commitments of the non-
extending Banks shall terminate on the Maturity Date in
effect prior to such extension and the Loans and other
amounts owed to such Banks shall become due and payable on
such date. If Banks holding a majority in amount of the
Commitments shall not have agreed to extend their
Commitments, then none of the Commitments shall be extended
and the Maturity Date shall remain unchanged. In the event
that any
<PAGE>33
Bank shall have declined or been deemed to have
declined to extend its Commitment and the Commitments of
other Banks shall have been extended, the Company shall have
the right, but not the obligation, at its own expense, upon
notice to such Bank and the Administrative Agent, to replace
such Bank at any time prior to the termination of such
Bank's Commitment (in accordance with and subject to the
restrictions contained in Section 9.4) with an assignee
willing to agree that its Commitment will terminate on the
extended Maturity Date, and such Bank hereby agrees to
transfer and assign without recourse (in accordance with and
subject to the restrictions contained in Section 9.4) all
its interests, rights and obligations under this Agreement
to such assignee; provided, however, that (i) no such
assignment shall conflict with any law or any rule,
regulation or order of any Governmental Authority and (ii)
the Company or such assignee, as the case may be, shall pay
to the affected Bank in immediately available funds on the
date of such assignment the principal of and interest
accrued to the date of payment on the Loans made by such
Bank hereunder and all other amounts accrued for such Bank's
account or owed to it hereunder.
SECTION 2.11. Prepayment of Loans.
(a)The Company shall have the right at any time and
from time to time to prepay any Committed Borrowing, in
whole or in part, without premium or penalty (but in any
event subject to Section 2.14), upon prior written, telecopy
or telephonic notice to the Administrative Agent given no
later than 10:30 a.m., North Carolina time, one Business Day
before any proposed prepayment; provided, however, that each
such partial prepayment shall be in a minimum principal
amount of $10,000,000 and in integral multiples of
$1,000,000. The Company shall not have the right to prepay
any Competitive Borrowing.
(b)On the date of any termination or reduction of the
Commitments pursuant to Section 2.10, the Company shall pay
or prepay so much of the Committed Borrowings as shall be
necessary in order that the aggregate principal amount of
the Competitive Loans and Committed Loans outstanding will
not exceed the Total Commitment after giving effect to such
termination or reduction.
(c)Each notice of prepayment shall specify the
prepayment date and the principal amount of each Borrowing
to be prepaid, shall be irrevocable and shall commit the
Company to prepay such Borrowing (or portion thereof) by the
amount stated therein.
<PAGE>34
All prepayments on Eurodollar Loans
under this Section shall be accompanied by accrued interest
on the principal amount being prepaid to the date of
prepayment.
SECTION 2.12. Reserve Requirements; Change in Circumstances.
(a)Notwithstanding any other provision herein, if
after the date hereof any change in applicable law or
regulations or in the interpretation or administration
thereof (including, without limitation, any request,
guideline or policy not having the force of law) by any
Governmental Authority charged with the administration or
interpretation thereof shall occur which shall impose,
modify or deem applicable any reserve, special deposit or
similar requirement (including a tax) against any assets
held by, deposits with or for the account of or credit
extended by such Bank (including any reserve requirement
that may be applicable to "eurocurrency liabilities" under
and as defined in Regulation D) or shall impose upon such
Bank or the London interbank market any other condition with
respect to this Agreement or the Eurodollar Loans or Fixed
Rate Loans made by such Bank and the result of any of the
foregoing shall be to increase the cost to such Bank of
making or maintaining any Eurodollar Loan or Fixed Rate Loan
hereunder or to reduce the amount of any payment (whether of
principal, interest or otherwise) by an amount deemed by
such Bank to be material, then and in each such case the
Company shall pay to such Bank, as provided in paragraph (c)
below, such amounts as shall be necessary to compensate such
Bank for such cost, reduction or payment; provided, however,
that the Company may, at its option and upon written notice
to the Administrative Agent and the Banks, either (i) elect
to convert such Loan of such Bank into an ABR Loan upon the
payment by the Company of the increased costs described
above incurred prior to such conversion and any amount owing
in respect of Section 2.14 hereof, it being understood that
(A) for purposes of Section 2.11, such ABR Loan shall be
subject to prepayment only at such times and on such
conditions as the Loan from which it was converted and (B)
upon such increased costs being eliminated, or reduced by an
amount deemed sufficient by the Company, such ABR Loan will
be converted into a Loan of the same Type as the Loan
previously converted into such ABR Loan having an Interest
Period expiring on the same date as the Loan previously
converted into such ABR Loan or (ii) with the prior consent
of the Required Banks, elect to convert all (but not less
than all) Loans of all Banks of the same Type and Interest
Period as the Loan subject to such change into Loans of a
different Type upon the payment of all amounts that are due
under this Section 2.12(a) and
<PAGE>35
Section 2.14.
Notwithstanding the foregoing, no Bank shall be entitled to
request compensation under this paragraph with respect to
any Competitive Loan if it shall have been aware of the
change giving rise to such request at the time of submission
of the Competitive Bid pursuant to which such Competitive
Loan shall have been made.
(b)If any Bank shall have determined that the
adoption after the date hereof of any law, rule, regulation,
agreement or guideline regarding capital adequacy, or any
change in any law, rule, regulation, agreement or guideline
regarding capital adequacy or in the interpretation or
administration of any law, rule, regulation, agreement or
guideline regarding capital adequacy by any Governmental
Authority charged with the interpretation or administration
thereof, or compliance by any Bank (or any lending office of
such Bank) or any Bank's holding company with any request or
directive regarding capital adequacy issued under any law,
rule, regulation or guideline (whether or not having the
force of law) of any such authority, central bank or
comparable agency issued after the date hereof, has or would
have the effect of reducing the rate of return on such
Bank's capital or on the capital of such Bank's holding
company, if any, as a consequence of this Agreement or the
Loans made by such Bank pursuant hereto to a level below
that which such Bank or such Bank's holding company could
have achieved but for such applicability, adoption, change
or compliance by an amount deemed by such Bank to be
material, then from time to time the Company shall pay to
such Bank following receipt of a certificate of such Bank to
such effect in accordance with paragraph (c) below such
additional amount or amounts as will compensate such Bank or
such Bank's holding company on an after-tax basis for any
such reduction suffered.
(c)Each Bank shall promptly deliver to the Company
from time to time one or more certificates setting forth the
amounts due to such Bank under paragraphs (a) and (b) above,
the changes as a result of which such amounts are due and
the manner of computing such amounts. Each such certificate
shall be conclusive in the absence of manifest error. The
Company shall pay to each Bank the amounts shown as due on
any such certificate within 10 days after its receipt of the
same. No failure on the part of any Bank to demand
compensation under paragraph (a) or (b) above on any one
occasion shall constitute a waiver of its right to demand
such compensation with respect to such period or any other
period, except that no Bank shall be entitled to
compensation under this
<PAGE>36
Section 2.12 for any costs incurred
or reduction suffered with respect to any date unless such
Bank shall have notified the Company that it will demand
compensation for such costs or reductions not more than 90
days after the later of (i) such date and (ii) the date on
which such Bank shall have become aware of such costs or
reductions. The protection of this Section 2.12 shall be
available to each Bank regardless of any possible contention
of the invalidity or inapplicability of any law, rule,
regulation, guideline or other change or condition which
shall have occurred or been imposed and shall give rise to
any demand by such Bank for compensation hereunder.
(d)Promptly after actual notice to any Bank that a
change referred to in paragraph (a) or (b) above has
occurred, such Bank will give notice of such occurrence to
the Company and the Administrative Agent and, unless all the
Eurodollar Loans giving rise to any such increased costs
shall have been converted to Loans of another type, such
Bank will, for a period of 30 days after the giving of such
notice, use reasonable efforts to specify a new Eurodollar
lending office with respect to its Commitment and the
Eurodollar Loans held by it with a view to mitigating the
consequences of such occurrence to the greatest extent
practicable unless in the opinion of such Bank such
specification might at such time or in the future have an
adverse effect upon it.
SECTION 2.13. Change in Legality. (a) Notwithstanding
anything to the contrary contained in Section 2.18 or elsewhere
in this Agreement, if any change after the date hereof in law or
regulation or in the interpretation thereof by any Governmental
Authority charged with the administration or interpretation
thereof shall make it unlawful for a Bank to make or maintain any
Eurodollar Loan or to give effect to its obligations as
contemplated hereby with respect to any Eurodollar Loan, then, by
written notice to the Company and the Administrative Agent, such
Bank may:
(i)declare that Eurodollar Loans will not
thereafter be made by such Bank hereunder, whereupon
such Bank shall not submit a Competitive Bid in
response to a request for Eurodollar Competitive Loans
and any request by the Company for a Eurodollar
Committed Borrowing shall, as to such Bank only, be
deemed a request for an ABR Loan unless such
declaration shall be subsequently withdrawn; and
(ii)require that all outstanding Eurodollar
Loans made by it be converted to ABR Loans, whereupon
all of such
<PAGE>37
Eurodollar Loans shall be automatically
converted to ABR Loans as of the effective date of such
notice as provided in paragraph (b) below.
(b)For purposes of this Section 2.13, a notice to the
Company by any Bank pursuant to paragraph (a) above shall be
effective with respect to outstanding Eurodollar Loans, if
lawful, on the last day of the then current Interest Period;
in all other cases, such notice shall be effective on the
date of receipt by the Company.
SECTION 2.14. Indemnity. The Company shall reimburse each
Bank on demand for any loss incurred or to be incurred by it in
the reemployment of the funds released by any prepayment or
conversion of any Eurodollar Loan or Fixed Rate Loan required or
permitted by any other provision of this Agreement if such Loan
is prepaid or converted other than on the last day of any
Interest Period for such Loan. Such loss shall be the difference
as reasonably determined by such Bank between the amount that
would have been realized by such Bank for the remainder of such
Interest Period for such Loan based on the interest rate
applicable thereto hereunder during such Interest Period and any
lesser amount that would be realized by such Bank in reemploying
the funds received in prepayment by making a Loan of the same
type in the principal amount prepaid during the period from the
date of prepayment to the end of the Interest Period of the Loan
being prepaid. Without duplication of the foregoing indemnity
payments, the Company will indemnify each Bank against any actual
loss or expense which such Bank may sustain or incur as a
consequence of (a) any failure by the Company to borrow or to
refinance any Loan hereunder after irrevocable notice of such
borrowing or refinancing, (b) any default in payment or
prepayment of the principal amount of any Loan or any part
thereof or interest accrued thereon, as and when due and payable
(at the due date thereof, by notice of prepayment or otherwise),
or (c) the occurrence of any Event of Default, including but not
limited to any loss or expense sustained or incurred in
liquidating or employing deposits from third parties acquired to
effect or maintain such Loan or any part thereof. Each Bank
shall provide to the Company a statement, signed by an officer of
such Bank and explaining the amount and calculation of any such
actual loss or expense, which statement shall, in the absence of
manifest error, be conclusive with respect to the parties hereto.
SECTION 2.15. Pro Rata Treatment, etc. Except as required
under Section 2.10(d) or 2.13, each Committed Borrowing, each
payment or prepayment of principal of any Committed Borrowing,
each payment of interest on the Committed Loans, each payment of
the Facility Fees,
<PAGE>38
each reduction of the Commitments and each
refinancing of any Borrowing with a Committed Borrowing of any
Type, shall be made pro rata among the Banks in accordance with
their respective Commitments (or, if such Commitments shall have
expired or been terminated, in accordance with the respective
principal amounts of their outstanding Committed Loans). Each
payment of principal of any Competitive Borrowing shall be
allocated pro rata among the Banks participating in such
Borrowing in accordance with the respective principal amounts of
their outstanding Competitive Loans comprising such Borrowing.
Each payment of interest on any Competitive Borrowing shall be
allocated pro rata among the Banks participating in such
Borrowing in accordance with the respective amounts of accrued
and unpaid interest on their outstanding Competitive Loans
comprising such Borrowing. For purposes of determining the
available Commitments of the Banks at any time (but not for
purposes of Section 2.6(a)), each outstanding Competitive
Borrowing shall be deemed to have utilized the Commitments of the
Banks (including those Banks which shall not have made Loans as
part of such Competitive Borrowing) pro rata in accordance with
such respective Commitments. Each Bank agrees that in computing
such Bank's portion of any Borrowing to be made hereunder, the
Administrative Agent may, in its discretion, round each Bank's
percentage of such Borrowing to the next higher or lower whole
dollar amount.
SECTION 2.16. Payments.
(a)The Company shall make each payment (including
principal of or interest on any Borrowing or any Fees or
other amounts) hereunder not later than 12:00 (noon), North
Carolina time, on the date when due in dollars to the
Administrative Agent at its offices at NationsBank Corporate
Center, Charlotte, North Carolina, in immediately available
funds.
(b)Whenever any payment (including principal of or
interest on any Borrowing or any Fees or other amounts)
hereunder shall become due, or otherwise would occur, on a
day that is not a Business Day, such payment may be made on
the next succeeding Business Day, and such extension of time
shall in such case be included in the computation of
interest or Fees, if applicable.
SECTION 2.17. Taxes.
(a) Any and all payments by the Company hereunder
shall be made, in accordance with Section 2.16, free and
clear of and without deduction for any and all current or
future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities
<PAGE>39
with respect thereto,
excluding (i) taxes imposed on or measured by all or part of
the gross or net income (but not including any such tax in
the nature of a withholding tax) of the Administrative Agent
or any Bank (or any transferee or assignee thereof,
including a participation holder (any such entity a
"Transferee")), in each case by the jurisdiction under the
laws of which the Administrative Agent or such Bank (or
Transferee) is organized or has its applicable lending
office or any political subdivision of any thereof and (ii)
taxes that would not have been imposed if the only
connection between the Administrative Agent or any Bank (or
Transferee), or any Affiliate thereof, and the jurisdiction
imposing such taxes were activities of the Administrative
Agent or such Bank (or Transferee) pursuant to or in respect
of this Agreement (including entering into, lending money or
extending credit pursuant to, receiving payments under or
enforcing this Agreement) (all such nonexcluded taxes,
levies, imposts, deductions, charges, withholdings and
liabilities, collectively or individually, "Taxes"). If the
Company shall be required to deduct any Taxes from or in
respect of any sum payable hereunder to any Bank (or any
Transferee) or the Administrative Agent, (i) the sum payable
shall be increased by the amount (an "additional amount")
necessary so that after making all required deductions
(including deductions applicable to additional sums payable
under this Section 2.17) such Bank (or Transferee) or the
Administrative Agent (as the case may be) shall receive an
amount equal to the sum it would have received had no such
deductions been made, (ii) the Company shall make such
deductions and (iii) the Company shall pay the full amount
deducted to the relevant Governmental Authority in
accordance with applicable law.
(b)In addition, the Company agrees to pay to the
relevant Governmental Authority in accordance with
applicable law any current or future stamp or documentary
taxes or any other excise or property taxes, charges or
similar levies that arise from any payment made hereunder or
from the execution, delivery or registration of, or
otherwise similarly with respect to, this Agreement and the
Notes ("Other Taxes").
(c)The Company will indemnify each Bank (or
Transferee) and the Administrative Agent for the full amount
of Taxes and Other Taxes paid by such Bank (or Transferee)
or the Administrative Agent, as the case may be, and any
liability (including penalties, interest and expenses
(including reasonable attorney's fees and expenses)) arising
therefrom or with respect thereto, whether or not such Taxes
or Other Taxes were correctly or legally asserted
<PAGE>40
by the
relevant Governmental Authority. A certificate as to the
amount of such payment or liability prepared by a Bank, or
the Administrative Agent on its behalf, absent manifest
error, shall be final, conclusive and binding for all
purposes. Such indemnification shall be made within 30 days
after the date the Bank (or Transferee) or the
Administrative Agent, as the case may be, makes written
demand therefor. Each Bank (or Transferee) or the
Administrative Agent shall make written demand for
indemnification no later than 120 days after the earlier of
(i) the date on which such Bank (or Transferee) or the
Administrative Agent makes such payment of Taxes or Other
Taxes and (ii) the date on which such Governmental Authority
makes written demand upon such Bank (or Transferee) or the
Administrative Agent for payment of such Taxes or Other
Taxes.
(d)If a Bank (or Transferee) or the Administrative
Agent shall become aware that it is entitled to claim a
refund, credit or reduction in tax from a Governmental
Authority in respect of Taxes or Other Taxes as to which it
has been indemnified by the Company, or with respect to
which the Company has paid additional amounts, pursuant to
this Section 2.17, it shall promptly notify the Company of
the availability of such refund claim, credit or reduction
in tax and shall, within 30 days after receipt of a request
by the Company, make a claim to such Governmental Authority
for such refund, credit or reduction in tax at the Company's
expense. If a Bank (or Transferee) or the Administrative
Agent receives a refund (including pursuant to a claim for
refund made pursuant to the preceding sentence) or realizes
a credit or reduction in tax in respect of any Taxes or
Other Taxes as to which it has been indemnified by the
Company or with respect to which the Company has paid
additional amounts pursuant to this Section 2.17, it shall
within 30 days from the date of such receipt pay over the
amount of such refund or benefit of such credit or reduction
in tax to the Company (but only to the extent of indemnity
payments made, or additional amounts paid, by the Company
under this Section 2.17 with respect to the Taxes or Other
Taxes giving rise to such refund, credit or reduction in
tax), net of all reasonable out-of-pocket expenses of such
Bank (or Transferee) or the Administrative Agent and without
interest (other than interest paid by the relevant
Governmental Authority with respect to such refund, credit
or reduction in tax); provided, however, that the Company,
upon the request of such Bank (or Transferee) or the
Administrative Agent, agrees to repay the amount paid over
to the Company (plus penalties, interest or other charges)
to such Bank (or Transferee) or the Administrative Agent
<PAGE>41
in the event such Bank (or Transferee) or the Administrative
Agent is required to repay such refund, credit or reduction
in tax to such Governmental Authority.
(e)As soon as practicable after the date of any
payment of Taxes or Other Taxes by the Company to the
relevant Governmental Authority, the Company will deliver to
the Administrative Agent, at its address referred to in
Section 9.1, the original or a certified copy of a receipt
issued by such Governmental Authority evidencing payment
thereof.
(f)Without prejudice to the survival of any other
agreement contained herein, the agreements and obligations
contained in this Section 2.17 shall survive the payment in
full of the principal of and interest on all Loans made
hereunder.
(g)Each Bank (or Transferee) that is organized under
the laws of a jurisdiction other than the United States, any
State thereof or the District of Columbia (a "Non-U.S.
Bank") shall deliver to each of the Company and the
Administrative Agent (i) two copies of either United States
Internal Revenue Service Form 1001 or Form 4224 (whichever
is applicable), or (ii) in the case of a Non-U.S. Bank
claiming exemption from U.S. Federal withholding tax under
Section 871(h) or 881(c) of the Code with respect to
payments of "portfolio interest", a Form W-8, or any
subsequent versions thereof or successors thereto and a
certificate representing that such Non-U.S. Bank is not a
bank for purposes of Section 881(c) of the Code, is not a
10-percent shareholder (within the meaning of Section
871(h)(3)(B) of the Code) of the Company and is not a
controlled foreign corporation related to the Company
(within the meaning of Section 864(d)(4) of the Code), in
either case properly completed and duly executed by such
Non-U.S. Bank claiming complete exemption from, or reduced
rate of, U.S. Federal withholding tax on payments by the
Company under this Agreement. Such forms shall be delivered
by each Non-U.S. Bank on or before the date it becomes a
party to this Agreement (or, in the case of a Transferee
that is a participation holder, on or before the date such
participation holder becomes a Transferee hereunder) and on
or before the date, if any, such Non-U.S. Bank changes its
applicable lending office by designating a different lending
office (a "New Lending Office"). In addition, each Non-U.S.
Bank shall deliver such forms promptly upon (or, if
reasonably practicable, prior to) the obsolescence or
invalidity of any form previously delivered by such Non-U.S.
Bank. Notwithstanding any other provision of this Section
2.17(g), a
<PAGE>42
Non-U.S. Bank shall not be required to deliver
any form pursuant to this Section 2.17(g) that such Non-U.S.
Bank is not legally able to deliver. Each Bank (or
Transferee) that is organized under the laws of the United
States or any state thereof or the District of Columbia
shall deliver to the Company an original copy of Internal
Revenue Service Form W-9 (or applicable successor form)
properly completed and duly executed by such Bank (or
Transferee).
(h)The Company shall not be required to indemnify any
Non-U.S. Bank, or to pay any additional amounts to any Non-
U.S. Bank, in respect of United States Federal withholding
tax (or any withholding tax imposed by a state that applies
only when such United States Federal withholding tax is
imposed) pursuant to paragraph (a) or (c) above to the
extent that: (i) the obligation to withhold amounts with
respect to United States Federal withholding tax existed on
the date such Non-U.S. Bank became a party to this Agreement
(or, in the case of a Transferee that is a participation
holder, on the date such participation holder became a
Transferee hereunder) or, with respect to payments to a New
Lending Office, the date such Non-U.S. Bank designated such
New Lending Office with respect to a Loan; provided,
however, that this clause (i) shall not apply to any
Transferee or New Lending Office that becomes a Transferee
or New Lending Office as a result of an assignment,
participation, transfer or designation made at the request
of the Company; and provided further, however, that this
clause (i) shall not apply to the extent the indemnity
payment or additional amounts any Transferee, or Bank (or
Transferee) through a New Lending Office, would be entitled
to receive (without regard to this clause (i)) do not exceed
the indemnity payment or additional amounts that the person
making the assignment, participation or transfer to such
Transferee, or Bank (or Transferee) making the designation
of such New Lending Office, would have been entitled to
receive in the absence of such assignment, participation,
transfer or designation; or (ii) the obligation to make such
indemnification or to pay such additional amounts would not
have arisen but for a failure by such Non-U.S. Bank to
comply with the provisions of paragraph (g) above.
(i)Any Bank (or Transferee) claiming any indemnity
payment or additional amounts payable pursuant to this
Section 2.17 shall use reasonable efforts (consistent with
legal and regulatory restrictions) to file any certificate
or document reasonably requested in writing by the Company
or to change the jurisdiction of its applicable lending
office if the making of such a filing or
<PAGE>43
change would avoid
the need for or reduce the amount of any such indemnity
payment or additional amounts that may thereafter accrue and
would not, in the good faith determination of such Bank (or
Transferee), be otherwise disadvantageous to such Bank (or
Transferee).
(j)Nothing contained in this Section 2.17 shall
require any Bank (or Transferee) or the Administrative Agent
to make available any of its tax returns (or any other
information that it deems to be confidential or
proprietary).
SECTION 2.18. Certain Bank Obligations. In the event (a)
any Bank delivers a certificate requesting compensation pursuant
to Section 2.12, (b) any Bank delivers a notice described in
Section 2.13 or (c) the Company is required to pay any additional
amount to any Bank or any Governmental Authority on account of
any Bank, pursuant to Section 2.17, the Company may require such
Bank to transfer and assign, without recourse, all of its
interests, rights and obligations under this Agreement to an
assignee which shall assume such assigned obligations (which
assignee may be another Bank, if such Bank accepts such
assignment); provided, that (i) such assignment shall not
conflict with any law, rule or regulation or order of any court
or other Governmental Authority having jurisdiction and (ii) the
Company or such assignee shall have paid to the assigning Bank in
immediately available funds an amount equal to the sum of the
principal of and interest accrued to the date of such payment on
the outstanding Loans of such Bank, plus all Facility Fees and
other amounts accrued for the account of such Bank or owed to it
hereunder (including any amounts under Section 2.12, 2.14 or
2.17); provided further, that if prior to any such transfer and
assignment the circumstances or event that resulted in such
Bank's claim for compensation under Section 2.12 or notice under
Section 2.13 or the amount paid pursuant to Section 2.17, as the
case may be, cease to cause such Bank to suffer increased costs
or reductions in amounts received or receivable or reduction in
return on capital, or cease to have the consequences specified in
Section 2.13, or cease to result in amounts being payable under
Section 2.17, as the case may be, or if such Bank shall waive its
right to claim further compensation under Section 2.12 or 2.17 in
respect of such circumstances or event or shall withdraw its
notice under Section 2.13 or in respect of such circumstances or
event, as the case may be, then such Bank shall not thereafter be
required to make any such transfer and assignment hereunder if it
has not already done so.
ARTICLE III
<PAGE>44
Representations and Warranties
The Company represents and warrants to the Administrative
Agent and the Banks that as of the Effective Date and as of the
date of each Borrowing, to the extent provided in Article IV:
SECTION 3.1. Organization, Corporate Powers. (a) The
Company is a corporation duly organized, validly existing and in
good standing under the laws of the Commonwealth of Virginia;
each Subsidiary which is not a Foreign Subsidiary is duly
organized, validly existing and in good standing, and each
Foreign Subsidiary is duly organized and validly existing, in
each case under the laws of the jurisdiction of its organization;
(b) the Company and each of its Subsidiaries (i) has the
corporate power and authority to own its property and to carry on
its business as now conducted and as proposed to be conducted and
(ii) is qualified to do business in every jurisdiction where such
qualification is necessary except where the failure so to qualify
would not have a materially adverse effect on the condition,
financial or otherwise, of the Company and the Subsidiaries taken
as a whole; and (c) the Company has the corporate power to
execute, deliver and perform this Agreement, to borrow hereunder
and to execute and deliver the Notes.
SECTION 3.2. Authorization. The execution, delivery and
performance of this Agreement, the borrowings hereunder and the
execution and delivery of the Notes (a) have been duly authorized
by all requisite corporate action on the part of the Company and
(b) will not (i) violate (A) any provision of law, statute, rule
or regulation, the articles of incorporation or By-laws of the
Company or any Subsidiary, (B) any applicable order of any court
or other agency of government or (C) any indenture, any agreement
for borrowed money, any bond, note or other similar instrument or
any other material agreement to which the Company or any
Subsidiary is a party or by which the Company or any Subsidiary
or any of their respective property is bound, (ii) be in conflict
with, result in a breach of or constitute (with due notice or
lapse of time or both) a default under any such indenture,
agreement, bond, note, instrument or other material agreement or
(iii) result in the creation or imposition of any Lien of any
nature whatsoever upon any property or assets of the Company or
any Subsidiary. This Agreement constitutes, and the Notes when
delivered hereunder will constitute, legal, valid and binding
obligations of the Company enforceable against the Company in
accordance with their respective terms.
<PAGE>45
SECTION 3.3. Governmental Approval. No action, consent or
approval of, or registration or filing with, or any other action
by any Governmental Authority is required in connection with the
execution, delivery and performance by the Company of this
Agreement, the borrowings hereunder or the execution, delivery
and performance of the Notes.
SECTION 3.4. Financial Condition. The audited Consolidated
balance sheets, and the audited Consolidated statements of
earnings and statements of cash flows for the years ended
December 31, 1995, December 31, 1994 and December 31, 1993 have
heretofore been furnished to each Bank. Such financial
statements (including the notes thereto) (i) have been audited by
Coopers & Lybrand LLC, (ii) have been prepared in accordance with
GAAP consistently applied throughout the periods covered thereby
and (iii) present fairly (on the basis disclosed in the footnotes
to such financial statements) the Consolidated financial
condition, results of operations and cash flows as of such date
and for such periods. The unaudited interim balance sheets of
the Company and its Subsidiaries as at the end of, and the
related unaudited interim statements of earnings and of cash
flows for, each fiscal quarterly period ended after March 31,
1996 and prior to the Effective Date have heretofore been
furnished to each Lender. Such interim financial statements for
each such quarterly period, (i) have been prepared in accordance
with GAAP consistently applied throughout the periods covered
thereby and (ii) present fairly (on the basis disclosed in the
footnotes to such financial statements) the Consolidated
financial condition, results of operations and cash flows as of
such date and for such periods. During the period from
December 31, 1995 to and including the Effective Date, other than
Olefins Transaction, there has been no sale, transfer or other
disposition by the Company or any of its Subsidiaries of any
material part of the business or property of the Company and its
Subsidiaries, taken as a whole, and no purchase or other
acquisition by any of them of any business or property (including
any capital stock of any other person) material in relation to
the consolidated financial condition of the Company and its
Subsidiaries, taken as a whole, in each case, which, is not
reflected in the foregoing financial statements or in the notes
thereto and has not otherwise been disclosed in writing to the
Banks on or prior to the Effective Date.
SECTION 3.5. No Material Adverse Change. There has been no
material adverse change in the business, assets, condition
(financial or otherwise) or results of operations of the Company
and the Subsidiaries taken as a whole since December 31, 1995.
<PAGE>46
SECTION 3.6. Subsidiaries. Schedule 3.6 hereto sets forth
a complete and accurate chart of all of the Subsidiaries other
than Designated Subsidiaries as of the Effective Date, showing as
of the Effective Date (as to each such Subsidiary) the
jurisdiction of its incorporation. All of the outstanding shares
of each class of stock of each of the Subsidiaries, other than
qualifying or similar shares as may be required by law, are owned
as of the Effective Date (directly or indirectly) by the Company
and none of such shares are covered by outstanding options,
warrants, rights of conversion or purchase and similar rights as
of the Effective Date. All the outstanding capital stock of each
of the Subsidiaries (other than the Designated Subsidiaries) (x)
has been validly issued, is fully paid and nonassessable and (y)
to the extent owned by the Company or one or more of the
Subsidiaries (other than the Designated Subsidiaries) (as shown
in Schedule 3.6) is owned free and clear of all Liens.
SECTION 3.7. Litigation. Except as set forth in Schedule
3.7 hereto or in the Company's Reports on Form 10K, Form 10Q,
Form 8K or any successor forms thereto, as filed with the
Securities and Exchange Commission, there are not any actions,
suits or proceedings at law or in equity or by or before any
governmental instrumentality or other agency now pending or, to
the knowledge of the Company, threatened (and reasonably likely
to be commenced) against or affecting the Company or any of the
Subsidiaries or any property or rights of the Company or any of
the Subsidiaries as to which there is a reasonable likelihood of
an adverse determination and which, if adversely determined,
would individually or in the aggregate materially impair the
right of the Company and the Subsidiaries taken as a whole to
carry on business substantially as now being conducted or would
result in a Material Adverse Effect.
SECTION 3.8. Tax Returns. The Company and each of the
Subsidiaries have filed or caused to be filed all Federal and
state tax returns and all local tax returns which, to the
knowledge of the Company, are required to be filed and have paid
or caused to be paid all taxes as shown on such returns or on any
assessment received by it or by any of them to the extent that
such taxes have become due, except taxes the validity of which is
being contested in good faith by appropriate proceedings and with
respect to which the Company or such Subsidiary, as the case may
be, shall have set aside on its books such reserves as are
required by GAAP with respect to any such tax so contested.
SECTION 3.9. Properties. The Company and its Subsidiaries
have good and marketable title to, or valid leasehold interests
in, all
<PAGE>47
their respective properties and assets reflected on the
consolidated balance sheet dated March 31, 1996, included in the
Financial Statements, except for such properties and assets as
have been disposed of since March 31, 1996 as no longer used or
useful in the conduct of their respective businesses or as have
been disposed of in the ordinary course of business, and all such
properties and assets are free and clear of all mortgages,
pledges, liens, charges and other encumbrances of any nature
whatsoever, except such as are not prohibited by the provisions
of Section 6.1.
SECTION 3.10. Employee Benefit Plans. Each of the Company
and its ERISA Affiliates is in compliance in all material
respects with the applicable provisions of ERISA and the Code
(insofar as it relates to the Plans, the Multiemployer Plans and
related matters) and the regulations and published
interpretations thereunder. No Reportable Event has occurred
with respect to any Plan with vested unfunded liabilities in
excess of $10,000,000 administered by the Company or any of the
ERISA Affiliates or any administrator designated by the Company
or any of its ERISA Affiliates. The present value of all
unfunded vested liabilities under Plans administered by the
Company, its ERISA Affiliates and administrators designated by
the Company or any of its ERISA Affiliates does not exceed in the
aggregate 5% of the Consolidated Shareholders' Equity of the
Company. Neither the Company nor any ERISA Affiliate has
incurred any Withdrawal Liability that has not been fully
satisfied and that materially adversely affects the financial
condition of the Company and its ERISA Affiliates taken as a
whole. Neither the Company nor any ERISA Affiliate has received
any notification that any Multiemployer Plan is in reorganization
or has been terminated, within the meaning of Title IV of ERISA,
and neither the Company nor any ERISA Affiliate reasonably
expects any Multiemployer Plan to be in reorganization or to be
terminated, where such reorganization or termination has resulted
or can reasonably be expected to result in an increase in the
contributions required to be made to such Plan that would
materially and adversely affect the financial condition of the
Company and its ERISA Affiliates taken as a whole.
SECTION 3.11. Investment Company Act; Public Utility
Holding Company Act. Neither the Company nor any Subsidiary is
an "investment company" as that term is defined in or is
otherwise subject to regulation under, the Investment Company Act
of 1940. Neither the Company nor any Subsidiary is a "holding
company" as that term is defined in, or is otherwise subject to
regulation under, the Public Utility Holding Company Act of 1935.
<PAGE>48
SECTION 3.12. Federal Reserve Regulations. Neither the
Company nor any Subsidiary is engaged principally, or as one of
its important activities, in the business of extending credit for
the purpose of purchasing or carrying any Margin Stock (within
the meaning of Regulation U), and no part of the proceeds of the
Loans hereunder will be used directly or indirectly to purchase
or carry Margin Stock or to extend credit to others for the
purpose of directly or indirectly purchasing or carrying Margin
Stock or for any purpose that would violate, or be inconsistent
with, the provisions of Regulations G, U or X.
SECTION 3.13. No Material Misstatements. To the best of
the Company's knowledge, no information, report, financial
statement, exhibit or schedule furnished by or on behalf of the
Company to the Administrative Agent or any Bank in connection
with the negotiation of this Agreement or any Note or included
therein contains any misstatement of fact, or omitted or omits to
state any fact necessary to make the statements therein not
misleading, where such misstatement or omission would be material
to the interests of the Banks with respect to the Company's
performance of its obligations hereunder.
SECTION 3.14. Compliance with Laws. Neither the Company
nor any of the Subsidiaries, nor any of their respective
properties or assets, is (a) in violation of, nor will the
continued operation of their properties and assets as currently
conducted violate, any law, rule, regulation or statute
(including any zoning, building, environmental and safety law,
ordinance, code or approval or any building permits) or (b) in
default with respect to any judgment, writ, injunction, decree or
order of any Governmental Authority, where such violation or
default could reasonably be expected to result in a Material
Adverse Effect.
SECTION 3.15. Environmental and Safety Matters. Except as
set forth in Schedule 3.15, the Company and each Subsidiary is in
compliance in all material respects with all Federal, state,
local and other statutes, ordinances, orders, judgments, rulings
and regulations relating to environmental pollution or to
environmental regulation or control or to employee health or
safety, except where the failure to do so would not be reasonably
likely, individually or in the aggregate, to result in a Material
Adverse Effect. Except as set forth in Schedule 3.15, neither
the Company nor any Subsidiary has received notice of any
material failure so to comply, which non-compliance neither has
been remedied nor is being contested in good faith by the Company
nor is the subject of the Company's good faith
<PAGE>49
efforts to achieve
compliance. Except as set forth in Schedule 3.15, the Company's
and the Subsidiaries' facilities do not manage any hazardous
wastes, hazardous substances, hazardous materials, toxic
substances, toxic pollutants or substances similarly denominated,
as those terms or similar terms are used in the Resource
Conservation and Recovery Act, the Comprehensive Environmental
Response Compensation and Liability Act, as amended by the
Superfund Amendment and Reauthorization Act, the Hazardous
Materials Transportation Act, the Toxic Substance Control Act,
the Clean Air Act, as amended, the Clean Water Act, the
Occupational Health and Safety Act or any other applicable law
relating to environmental pollution or employee health and
safety, in violation in any material respect of any law or any
regulations promulgated pursuant thereto, except where the
failure to do so would not reasonably be expected, individually
or in the aggregate, to result in a Material Adverse Effect.
Except as set forth in Schedule 3.15, the Company is aware of no
events, conditions or circumstances involving environmental
pollution or contamination or employee health or safety that
would be reasonably likely to result in a Material Adverse
Effect.
ARTICLE IV
Conditions of Lending
The obligations of the Banks to make Loans hereunder are
subject to the satisfaction of the following conditions:
SECTION 4.1. Closing Conditions. The obligation of the
Banks to enter into this Agreement and to make the initial Loans
shall be subject to satisfaction of the following conditions (in
form and substance acceptable to the Banks):
(a)The Administrative Agent shall have received
original counterparts of this Agreement executed by each of
the parties hereto;
(b)The Administrative Agent shall have received an
appropriate original Committed Note for each Bank, executed
by the Company;
(c)The Administrative Agent shall have received an
appropriate original Competitive Note for each Bank,
executed by the Company;
<PAGE>50
(d)The Administrative Agent shall have received all
documents it may reasonably request relating to the
existence and good standing of the Company and its
Subsidiaries, the corporate or other necessary authority for
and the validity of this Agreement, and any other matters
relevant thereto, all in form and substance reasonably
satisfactory to the Administrative Agent;
(e) The Administrative Agent shall have received a
certificate executed by a Financial Officer of the Company
as of the Effective Date stating that immediately after
giving effect to this Agreement, (i) the Company and its
Subsidiaries on a Consolidated basis are solvent, (ii) no
Default or Event of Default exists and (iii) the
representations and warranties set forth in Section 3 are
true and correct in all material respects;
(f)The Administrative Agent shall have received a
legal opinion of E. Whitehead Elmore, Esq., counsel for the
Company, dated as of the Effective Date and substantially in
the form of Schedule 4.1(f);
(g)No material adverse change shall have occurred
since December 31, 1995 in the condition (financial or
otherwise), business, management or prospects of the Company
and its Subsidiaries taken as a whole;
(h) The Administrative Agent shall have received, and
in each case, approved (i) the Consolidated financial
statements of the Company and its Subsidiaries for the
fiscal year 1995, including balance sheets, income and cash
flow statements audited by independent public accountants of
recognized national standing and prepared in conformity with
GAAP consistently applied and (ii) interim financial
statements for the fiscal quarters ending during the period
from the date of the most recent audited statements to the
Effective Date.
(i)The Administrative Agent shall have received, for
its own account and for the accounts of the Banks, all fees
and expenses required by this Agreement or any other Credit
Document to be paid on or before the Effective Date; and
(j)The Administrative Agent shall have received
satisfactory evidence of the repayment of all loans and
<PAGE>51
obligations under the Existing Credit Agreement and the
termination of the Commitments thereunder.
SECTION 4.2. Conditions to be Satisfied on Date of Each
Borrowing. In the case of each Borrowing to be made hereunder,
including each Borrowing in which Loans are refinanced with new
Loans as contemplated by Section 2.5:
(a)The Administrative Agent shall have received a
notice of such Borrowing as required by Section 2.3 or 2.4,
as the case may be.
(b)The representations and warranties set forth in
Article III (except, in the case of a refinancing that does
not increase the aggregate principal amount of the Loans of
any Bank outstanding, the representations set forth in
Sections 3.5 and 3.7) shall be true and correct in all
material respects on and as of the date of such Borrowing
with the same effect as though such representations and
warranties had been made on and as of such date, except to
the extent that such representations and warranties
expressly relate to an earlier date.
(c)At the time of each such Borrowing, the Company
shall be in compliance with all the terms and provisions set
forth herein on its part to be observed or performed, and
immediately after such Borrowing no Default or Event of
Default shall have occurred and be continuing.
(d)Each Bank that shall not have previously received
an appropriate Note shall have received a duly executed
Competitive Note or Committed Note, as applicable, payable
to its order and otherwise complying with the provisions of
Section 2.7.
Each Borrowing hereunder shall be deemed to constitute a
representation and warranty by the Company on the date of such
Borrowing as to the matters specified in paragraphs (b) and (c)
of this Section.
ARTICLE V
Affirmative Covenants
The Company covenants and agrees with the Administrative
Agent and the Banks that, so long as this Agreement shall remain
in effect
<PAGE>52
or the principal of or interest on any Loan, the
Facility Fee or any other expenses or amounts payable hereunder
shall be unpaid, unless the Required Banks shall otherwise
consent in writing, it will, and will cause each of the
Subsidiaries to:
SECTION 5.1. Corporate Existence; Businesses and
Properties. Do or cause to be done all things necessary to
preserve, renew and keep in full force and effect its corporate
existence, material rights, licenses, permits and franchises,
comply with all laws and regulations applicable to it and conduct
its business in substantially the same manner as heretofore
conducted or as at the time permitted under applicable law; at
all times maintain and preserve all property used or useful in
the conduct of its business and keep the same in good repair,
working order and condition, and from time to time make, or cause
to be made, all needful and proper repairs, renewals and
replacements thereto necessary in order that the business carried
on in connection therewith may be properly conducted at all
times; provided, however, that nothing contained in this Section
5.1(a) shall prevent the Company or any Subsidiary from ceasing
or omitting to exercise any rights, licenses, permits or
franchises (including, in the case of a Subsidiary only, the
corporate existence thereof) which in the judgment of the Company
can no longer be advantageously exercised or (b) shall prevent
the Company or any Subsidiary from selling, abandoning or
otherwise disposing of any property, the retention of which in
the judgment of the Company is inadvisable to the business of the
Company or any Subsidiary, or prevent any liquidation of any
Subsidiary or any merger or consolidation or sale thereof.
SECTION 5.2. Insurance. (a) Keep its insurable properties
adequately insured at all times by financially sound and
reputable insurers; (b) maintain such other insurance, to such
extent and against such risks, including fire and other risks
insured against by extended coverage, as is customary with
companies in the same or similar businesses; (c) maintain in full
force and effect public liability insurance against claims for
personal injury or death or property damage occurring upon, in,
about or in connection with the use of any properties owned,
occupied or controlled by the Company or any Subsidiary, as the
case may be, in such amount as the Company or such Subsidiary, as
the case may be, shall reasonably deem necessary; and (d)
maintain such other insurance as may be required by law.
SECTION 5.3. Obligations and Taxes. Pay all of its
Indebtedness and obligations promptly and in accordance with
their terms and pay and discharge promptly when due all taxes,
assessments
<PAGE>53
and governmental charges or levies imposed upon it or
upon its income or profits or in respect of its property, before
the same shall become in default, as well as all lawful claims
for labor, materials and supplies or otherwise which, if unpaid,
might give rise to a Lien upon such properties or any part
thereof; provided, however, that neither the Company nor any of
the Subsidiaries shall be required to pay and discharge or to
cause to be paid and discharged any such tax, assessment, charge,
levy or claim so long as the validity or amount thereof shall be
contested in good faith by appropriate proceedings and the
Company or such Subsidiary, as the case may be, shall set aside
on its books such reserves as are required by generally accepted
accounting principles with respect to any such tax, assessment,
charge, levy or claim so contested.
SECTION 5.4. Financial Statements, Reports, etc. In the
case of the Company, furnish directly to the Administrative Agent
and to each of the Banks:
(a)within 120 days after the end of each fiscal year
of the Company (being December 31 in each calendar year),
its Consolidated balance sheets, Consolidated statements of
income and Consolidated statements of cash flows showing the
Consolidated financial condition of the Company and the
Subsidiaries as of the close of such fiscal year and the
results of its operations and the operations of the
Subsidiaries during such year, all the foregoing
consolidated financial statements to be audited by Coopers &
Lybrand, independent public accountants, or other
independent public accountants acceptable to the Required
Banks and accompanied by an opinion of such accountant
(which shall not be qualified in any material respect) to
the effect that such consolidated financial statements
fairly present the financial condition and results of
operations of the Company and the Subsidiaries on a
consolidated basis in accordance with GAAP;
(b)within 60 days after the end of each of the first
three fiscal quarters of each fiscal year, unaudited
Consolidated balance sheets, Consolidated statements of
income and Consolidated statements of cash flows showing the
financial condition and results of operations of the Company
and the Subsidiaries on a consolidated basis as of the end
of each such quarter and for the then elapsed portion of the
fiscal year, certified by a Financial Officer of the Company
as presenting fairly the financial position and results of
operations of the Company and such Subsidiaries and as
having been prepared in
<PAGE>54
accordance with GAAP (except for
such changes therein as are approved by the independent
accountants for the Company), in each case subject to normal
year-end audit adjustments;
(c)concurrently with (a) and (b) above, a certificate
of the firm or person referred to therein (which certificate
furnished by the independent accountants referred to in
paragraph (a) above may be limited to the best of its
knowledge and to accounting matters and may disclaim
responsibility for legal interpretations) (i) certifying
that no Default or Event of Default has occurred, or, if
such a Default or Event of Default has occurred, specifying
the nature and extent thereof and, in the case of the
certificate furnished by a Financial Officer of the Company,
specifying any corrective action taken or proposed to be
taken with respect thereto and (ii) setting forth
computations in reasonable detail satisfactory to the
Administrative Agent demonstrating compliance with the
covenant contained in Section 6.5;
(d)promptly after the same become publicly available
and to the extent not required to be furnished by any other
provision of this Section 5.4, (i) copies of all proxy
statements, financial statements and reports that the
Company sends to its stockholders and (ii) copies of all
regular, periodic and special reports, and all registration
statements relating to transactions requiring a vote of
stockholders of the Company or filed on Form S-1, S-2 or S-3
under the Securities Act of 1933, which the Company or any
Subsidiary files with the Securities and Exchange
Commission, or any Governmental Authority which may be
substituted therefor, or with any national securities
exchange, or distributed to its shareholders, as the case
may be; and
(e)promptly, from time to time, such other
information regarding the operations, business affairs and
condition (financial or otherwise) of the Company and the
Subsidiaries as each Bank through the Administrative Agent
may reasonably request; provided, however, that the Company
shall not be obligated to disclose, or to permit any
examination which will disclose, technical knowledge or
confidential trade information, except where appropriate
safeguards exist that prevent dissemination of such
information in a manner detrimental to the Company's
competitive position.
<PAGE>55
SECTION 5.5. Litigation and Other Notices. Give the
Administrative Agent and each Bank prompt written notice of the
following:
(a)any Default or Event of Default, specifying the
nature and extent thereof and the corrective action (if any)
proposed to be taken with respect thereto;
(b)the filing or commencement of (or any threat or
notice of intention of any person to file or commence where
such filing or commencement is reasonably likely) any
action, suit or proceeding, whether at law or in equity or
by or before any Governmental Authority, against the Company
or any Affiliate thereof as to which there is a reasonable
likelihood of an adverse determination and that, if
adversely determined, could reasonably be anticipated to
result in Material Adverse Effect; and
(c)any development that has resulted in, or could
reasonably be anticipated to result in, a Material Adverse
Effect.
SECTION 5.6. ERISA.
(a)Comply in all material respects with the
applicable provisions of ERISA and the Code (insofar as it
relates to the Plans, the Multiemployer Plans and related
matters) and (b) furnish to the Administrative Agent and
each Bank, (i) as soon as possible after, and in any event
within 30 days after any Executive Officer of the Company or
any ERISA Affiliate knows or has reason to know that, any
Reportable Event with respect to any Plan with vested
unfunded liabilities in excess of $10,000,000 has occurred,
a statement of a Financial Officer setting forth details as
to such Reportable Event and the action that the Company
proposes to take with respect thereto, together with a copy
of the notice, if any, of such Reportable Event given to
PBGC, (ii) promptly after receipt thereof, a copy of any
notice the Company or any Subsidiary may receive from PBGC
relating to the intention of PBGC to terminate any Plan with
vested unfunded liabilities in excess of $10,000,000 or to
appoint a trustee to administer any such Plan, (iii) within
10 days after the due date for filing with the PBGC pursuant
to Section 412(n) of the Code a notice of failure to make a
required installment or other payment with respect to a Plan
with vested unfunded liabilities in excess of $10,000,000, a
<PAGE>56
statement of a Financial Officer setting forth details as to
such failure and the action that the Company proposes to
take with respect thereto, together with a copy of any such
notice given to the PBGC, and (iv) promptly and in any event
within 30 days after receipt thereof by the Company or any
ERISA Affiliate from the sponsor of a Multiemployer Plan, a
copy of each notice received by the Company or any ERISA
Affiliate concerning (A) the imposition of Withdrawal
Liability or (B) a determination that a Multiemployer Plan
is, or is expected to be, terminated or in reorganization,
both within the meaning of Title IV of ERISA.
SECTION 5.7. Access to Premises and Records. Maintain
financial records in accordance with GAAP, and permit
representatives of the Administrative Agent and of each Bank that
shall make a request therefor through the Agent to have access to
such financial records and the premises of the Company and each
Subsidiary at reasonable times and to make such extracts from
such records as such representatives deem necessary, and permit
any such representatives to discuss the affairs, finances and
condition of the Company or any Subsidiary with the officers
thereof and independent accountants therefor.
SECTION 5.8. Issuance of Notes. Forthwith upon the
effectiveness of this Agreement, the Company shall execute and
deliver to the Banks the Notes (it being agreed, however, that
this Agreement and the obligations of the Company hereunder shall
become effective as provided in Section 9.17 whether or not the
Notes shall have been delivered).
ARTICLE VI
Negative Covenants
The Company covenants and agrees with the Administrative
Agent and the Banks that, so long as this Agreement shall remain
in effect or the principal of or interest on any Note, the
Facility Fee or any other expenses or amounts payable hereunder
shall be unpaid, unless the Required Banks otherwise consent in
writing, it will not, and it will not cause, permit or suffer any
of the Subsidiaries, directly or indirectly, to:
SECTION 6.1. Liens, etc. Create, incur, assume or suffer to
exist any Lien upon or with respect to any of its assets or
<PAGE>57
properties (including stock or other securities of any person,
including any Subsidiary) now owned or hereafter acquired or
assign or otherwise convey any right to receive income or
revenues; provided that the foregoing restrictions shall not
apply to mortgages, deeds of trust, pledges, liens, security
interests or other charges or encumbrances:
(a)for taxes, assessments or governmental charges or
levies on property of the Company or any Subsidiary if the
same shall not at the time be delinquent or thereafter can
be paid without penalty, or are being contested in good
faith and by appropriate proceedings and with respect to
which the Company or Subsidiary shall have set aside
adequate reserves in accordance with GAAP with respect
thereto;
(b)imposed by law, such as carrier's, warehousemen's
and mechanics' liens and other similar liens, which arise in
the ordinary course of business with respect to obligations
not yet due or being contested in good faith and by
appropriate proceedings and with respect to which the
Company or Subsidiary shall have set aside adequate reserves
in accordance with GAAP with respect thereto;
(c)arising out of pledges or deposits under workmen's
compensation laws, unemployment insurance, old age pensions,
or other social security or retirement benefits, or similar
legislation;
(d)other attachments, liens, charges, pledges,
deposits, encumbrances, or other security interests
incidental to the conduct of its business or the ownership
of its property and assets which were not incurred in
connection with the borrowing of money or the obtaining of
advances or credit, and which do not in the aggregate
materially detract from the value of its property or assets
or materially impair the use thereof in the operation of its
business;
(e)Liens on the assets or properties of a Subsidiary
in favor of the Company or another Subsidiary to secure
Indebtedness of such Subsidiary to the Company or such other
Subsidiary;
(f)any Lien on property or assets of the Company or
any Subsidiary existing on the date hereof and set forth on
Schedule 6.1 and any Lien that replaces such an existing
Lien; provided,
<PAGE>58
however, that the principal amount of the
Indebtedness secured by the replacing Lien does not exceed
the principal amount of Indebtedness secured by such
existing Lien at the time of replacement of the existing
Lien or cover property different from the property covered
by the existing Lien;
(g)Liens on property or assets of the Company or any
Subsidiary granted in connection with Sale and Lease-Back
Transactions, provided that the aggregate amount of
Attributable Debt in connection with such Sale and Lease-
Back Transactions shall not at any time be in excess of
$50,000,000; and
(h)Liens other than those referred to in
subparagraphs (a) through (g) above, provided that the
aggregate amount of all Indebtedness that is secured or
evidenced by Liens other than those referred to in
subparagraphs (a) through (e) and (g) above does not at any
time exceed an amount equal to 10% of Consolidated
Shareholders' Equity of the Company.
SECTION 6.2. Intentionally Omitted.
SECTION 6.3. Compliance with Regulations G, U and X. Incur,
create or assume any Indebtedness or other liability or make any
investment, capital contribution, loan, advance or extension of
credit or take or permit to be taken any other action or permit
to exist any event permitted by this Credit Agreement but for the
provisions of this Section 6.3, if such action or event would
result in this Agreement, the Loans hereunder, the use of the
proceeds thereof or the other transactions contemplated hereby
violating or being inconsistent with Regulations G, U or X,
including without limitation the provisions of said Regulations
relating to withdrawal and substitution of collateral.
SECTION 6.4. Mergers, Consolidations and Sales of Assets.
Merge into or consolidate with any other person, or permit any
other person to merge into or consolidate with it, or sell,
transfer, lease or otherwise dispose of (in one transaction or in
a series of transactions) all or substantially all of its assets
(whether now owned or hereafter acquired) or any capital stock of
any Subsidiary, except that (a) the Company and any Subsidiary
may purchase and sell inventory in the ordinary course of
business, (b) if at the time thereof and immediately after giving
effect thereto no Default or Event of Default shall have occurred
and be continuing (i) any wholly owned Subsidiary or any other
person may merge into the Company in a transaction in which the
Company is the surviving corporation, (ii)
<PAGE>59
any wholly owned
Subsidiary may merge into or consolidate with any other wholly
owned Subsidiary in a transaction in which the surviving entity
is a wholly owned Subsidiary and no person other than the Company
or a wholly owned Subsidiary receives any consideration and (iii)
so long as (A) the Ratings of the surviving corporation are
better than or equal to the Ratings of the Company and (B) the
surviving corporation agrees in writing to assume the obligations
of the Company under this Agreement, the Company may merge into
or consolidate with any other person, (c) the Company may sell
100% of the capital stock of any Subsidiary for fair market
value, as determined in good faith by the Company's board of
directors, provided such sale does not constitute a sale of all
or substantially all of the Company's assets and (d) the Company
may sell any portion of the capital stock of any Subsidiary in
connection with the establishment of a joint venture for the
purpose of developing a product or business related to any of the
Company's existing lines of business as of the date of this
Agreement.
SECTION 6.5. Leverage Ratio. Permit the Leverage Ratio at
any time to be greater than 60%.
ARTICLE VII
Events of Default
In the case of the happening of any of the following events
(hereinafter called Events of Default):
(a)any representation or warranty made or deemed made
in connection with this Agreement or, with respect to the
Company as constituted as of the Effective Date, or with the
execution and delivery of the Notes or the borrowings
hereunder or any statement or representation made in any
report, certificate, financial statement or other instrument
furnished by the Company to the Administrative Agent or the
Banks pursuant to this Agreement or, with respect to the
Company as constituted as of the Effective Date, shall prove
to have been false or misleading in any respect material to
the interests of the Banks with respect to the Company's
performance of its obligations hereunder when made or
delivered or when deemed made in accordance with the terms
hereof;
(b)default shall be made in the payment of the
principal of or interest on any Loan or of the Facility Fee
or any other
<PAGE>60
amount due under this Agreement, when and as
the same shall become due and payable, whether at the due
date thereof or at a date fixed for prepayment thereof or by
acceleration thereof or otherwise and in the case of
interest on the Notes, the Facility Fee or such other
amounts, except principal, such default shall continue
unremedied for a period of 10 days;
(c)default shall be made in the due observance or
performance of any covenant, condition or agreement
contained in Section 5.1 or 5.5 or in Article VI;
(d)default shall be made in the due observance or
performance of any other covenant, condition or agreement to
be observed or performed by the Company or any Subsidiary
pursuant to the terms hereof and such default shall continue
unremedied for 30 days after written notice thereof to the
Company by the Administrative Agent or the Required Banks;
(e)the Company or any Subsidiary shall fail to pay
any principal or interest, regardless of amount, due in
respect of Indebtedness in a principal amount greater than
$25,000,000, owing by the Company or such Subsidiary
(whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise), and such failure shall
continue after the applicable grace period, if any,
specified in the agreement or instrument relating to such
Indebtedness; or the Company or any Subsidiary shall fail to
perform any term, covenant or agreement on its part to be
performed under any agreement or instrument evidencing or
securing or relating to any such Indebtedness, if the effect
of such failure is to cause or to permit the holder or
holders of such Indebtedness to accelerate the maturity of
such Indebtedness;
(f)the Company or any Subsidiary other than a
Designated Subsidiary shall (i) voluntarily commence any
proceeding or file any petition seeking relief under Title
11 of the United States Code, as now constituted or
hereafter amended, or any other Federal, state or foreign
bankruptcy, insolvency, receivership or similar law, (ii)
consent to the institution of, or fail to contest in a
timely and appropriate manner, any such proceeding or the
filing of any such petition, (iii) apply for or consent to
the appointment of a receiver, trustee, custodian,
sequestrator or similar official for the Company or any
Subsidiary other than a Designated Subsidiary or for a
substantial part of its property, (iv) file an answer
admitting
<PAGE>61
the material allegations of a petition filed
against it in any such proceeding, (v) make a general
assignment for the benefit of creditors, (vi) become unable,
admit in writing its inability or fail generally to pay its
debts as they become due or (vii) take corporate action for
the purpose of effecting any of the foregoing;
(g)an involuntary proceeding shall be commenced or an
involuntary petition shall be filed in a court of competent
jurisdiction seeking (i) relief in respect of the Company or
any Subsidiary other than a Designated Subsidiary, or of a
substantial part of its property, under Title 11 of the
United States Code, as now constituted or hereafter amended,
or any other Federal, state or foreign bankruptcy,
insolvency or similar law, (ii) the appointment of a
receiver, trustee, custodian, sequestrator or similar
official for the Company or any Subsidiary other than a
Designated Subsidiary or for a substantial part of its
property or (iii) the winding up or liquidation of the
Company or any Subsidiary other than a Designated
Subsidiary; and such proceeding or petition shall continue
undismissed for 60 days or an order or decree approving or
ordering any of the foregoing shall continue unstayed and in
effect for 30 days;
(h)one or more final judgments from which no further
appeal can be taken for the payment of money in an aggregate
amount in excess of $25,000,000 shall be rendered against
the Company and/or a Subsidiary, and the same shall remain
undischarged for a period of 60 consecutive days during
which execution shall not be effectively stayed;
(i)(i)Reportable Event or Reportable Events, or a
failure to make a required installment or other payment
(within the meaning of Section 412(n)(1) of the Code) shall
have occurred with respect to any Plan or Plans with vested
unfunded liabilities in an aggregate amount in excess of
$10,000,000 and, within 30 days after the reporting of such
Reportable Event to the Administrative Agent or after the
receipt by the Administrative Agent of the statement
required pursuant to Section 5.6, the Administrative Agent
shall have notified the Company in writing that (A) the
Required Banks have made a determination that, on the basis
of such Reportable Event or Reportable Events or the failure
to make a required payment, there are reasonable grounds for
the termination of such Plan or Plans by the PBGC or for the
appointment by the appropriate
<PAGE>62
United States District Court
of a trustee to administer such Plan or Plans or for the
imposition of a Lien in favor of such Plan or Plans (B) as a
result thereof an Event of Default exists hereunder; or (ii)
a trustee shall be appointed by a United States District
Court to administer any Plan with vested unfunded
liabilities in excess of $10,000,000; or (iii) the PBGC
shall institute proceedings to terminate any Plan with
vested unfunded liabilities in excess of $10,000,000;
(j)(i)the Company or any ERISA Affiliate shall have
been notified by the sponsor of a Multiemployer Plan that it
has incurred Withdrawal Liability to such Multiemployer
Plan, (ii) the Company or such ERISA Affiliate does not have
reasonable grounds for contesting such Withdrawal Liability
or is not in fact contesting such Withdrawal Liability in a
timely and appropriate manner and (iii) the amount of the
Withdrawal Liability specified in such notice, when
aggregated with all other amounts required to be paid to
Multiemployer Plans in connection with Withdrawal
Liabilities (determined as of the date or dates of such
notification), either (A) exceeds $10,000,000 or requires
payments exceeding $2,500,000 in any year or (B) is less
than $10,000,000 but remains unpaid 30 days after such
payment is due;
(k)the Company or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or is being
terminated, within the meaning of Title IV of ERISA, if
solely as a result of such reorganization or termination the
aggregate annual contributions of the Company and its ERISA
Affiliates to all Multiemployer Plans that are then in
reorganization or have been or are being terminated have
been or will be increased over the amounts required to be
contributed to such Multiemployer Plans for their most
recently completed plan years by an amount exceeding
$2,500,000; or
(l)there shall have occurred a Change in Control;
then, and in every such event and at any time thereafter during
the continuance of such event, the Administrative Agent may, and
upon written request from the Required Banks shall, by notice to
the Company, take either or both of the following actions, at the
same or different times: (i) terminate the Commitments and (ii)
declare the Loans to be forthwith due and payable, whereupon the
principal of the Loans so declared to be due and payable,
together with accrued
<PAGE>63
interest thereon and any unpaid accrued
Fees and all other liabilities of the Company accrued hereunder,
shall become forthwith due and payable without presentment,
demand, protest or any other notice of any kind, all of which are
hereby expressly waived by the Company, anything contained herein
or in the Notes to the contrary notwithstanding. Notwithstanding
the foregoing, if an Event of Default specified in paragraph (f)
or (g) above occurs with respect to the Company or any
Subsidiary, the Commitments shall automatically terminate and the
Loans then outstanding, together with accrued interest thereon
and any unpaid accrued Fees and all other liabilities of the
Company accrued hereunder, shall become immediately due and
payable, without any action by any Bank or the Administrative
Agent and without presentment, demand, protest or any other
notice of any kind, all of which are hereby expressly waived,
anything contained herein or in the Notes to the contrary
notwithstanding.
ARTICLE VIII
The Administrative Agent
In order to expedite the transactions contemplated by this
Agreement, NationsBank is hereby appointed to act as
Administrative Agent on behalf of the Banks. Each of the Banks,
and each subsequent holder of any Note by its acceptance thereof,
hereby irrevocably authorizes the Administrative Agent to take
such actions on behalf of such Bank or holder and to exercise
such powers as are specifically delegated to the Administrative
Agent by the terms and provisions hereof, together with such
actions and powers as are reasonably incidental thereto. The
Administrative Agent is hereby expressly authorized by the Banks,
without hereby limiting any implied authority, (a) to receive on
behalf of the Banks all payments of principal of and interest on
the Loans and all other amounts due to the Banks hereunder, and
promptly to distribute to each Bank its proper share of each
payment so received; (b) to give notice on behalf of each of the
Banks to the Company of any Event of Default specified in this
Agreement of which the Administrative Agent has actual knowledge
acquired in connection with its agency hereunder; and (c) to
distribute to each Bank copies of all notices, financial
statements and other materials delivered by the Company pursuant
to this Agreement as received by the Administrative Agent.
Neither the Administrative Agent nor any of its directors,
officers, employees or agents shall be liable as such for any
action
<PAGE>64
taken or omitted by any of them except for its or his own
gross negligence or willful misconduct, or be responsible for any
statement, warranty or representation herein or the contents of
any document delivered in connection herewith, or be required to
ascertain or to make any inquiry concerning the performance or
observance by the Company of any of the terms, conditions,
covenants or agreements contained in this Agreement. The
Administrative Agent shall not be responsible to the Banks or the
holders of the Notes for the due execution, genuineness,
validity, enforceability or effectiveness of this Agreement, the
Notes or any other instruments or agreements. The Administrative
Agent may deem and treat the payee of any Note as the owner
thereof for all purposes hereof until it shall have received from
the payee of such Note notice, given as provided herein, of the
transfer thereof in compliance with Section 9.4. The
Administrative Agent shall in all cases be fully protected in
acting, or refraining from acting, in accordance with written
instructions signed by the Required Banks (or such greater
percentage of Banks as may be required hereunder) and, except as
otherwise specifically provided herein, such instructions and any
action or inaction pursuant thereto shall be binding on all the
Banks and each subsequent holder of any Note. The Administrative
Agent shall, in the absence of knowledge to the contrary, be
entitled to rely on any instrument or document believed by it in
good faith to be genuine and correct and to have been signed or
sent by the proper person or persons. Neither the Administrative
Agent nor any of its directors, officers, employees or agents
shall have any responsibility to the Company on account of the
failure of or delay in performance or breach by any other Bank or
the Company of any of their respective obligations hereunder or
in connection herewith. The Administrative Agent may execute any
and all duties hereunder by or through agents or employees and
shall be entitled to rely upon the advice of legal counsel
selected by it with respect to all matters arising hereunder and
shall not be liable for any action taken or suffered in good
faith by it in accordance with the advice of such counsel.
The Banks hereby acknowledge that the Administrative Agent
shall be under no duty to take any discretionary action permitted
to be taken by it pursuant to the provisions of this Agreement
unless it shall be requested in writing to do so by the Required
Banks.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided below, the Administrative Agent
may resign at any time by notifying the Banks and the Company.
Upon any such resignation, the Required Banks, with the consent
of the Company (which consent shall not be unreasonably
withheld), shall have the
<PAGE>65
right to appoint a successor. If no
successor shall have been so appointed by the Required Banks and
shall have accepted such appointment within 30 days after the
retiring Administrative Agent gives notice of its resignation,
then the retiring Administrative Agent may, on behalf of the
Banks, appoint a successor Administrative Agent which shall be a
bank with an office in New York, New York, having a combined
capital and surplus of at least $500,000,000 or an Affiliate of
any such bank. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor bank, such
successor shall succeed to and become vested with all the rights,
powers, privileges and duties of the retiring Administrative
Agent and the retiring Administrative Agent shall be discharged
from its duties and obligations hereunder. After the
Administrative Agent's resignation hereunder, the provisions of
this Article and Section 9.5 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 Administrative Agent.
With respect to the Loans made by it hereunder and the Notes
issued to it, the Administrative Agent in its individual capacity
and not as Administrative Agent shall have the same rights and
powers as any other Bank and may exercise the same as though it
were not the Administrative Agent, and the Administrative Agent
and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Company or any
Subsidiary or other Affiliate thereof as if it were not the
Administrative Agent.
Each Bank agrees (i) to reimburse the Administrative Agent,
on demand, in the amount of its pro rata share (based on its
Commitment hereunder) of any expenses incurred for the benefit of
the Banks by the Administrative Agent, including counsel fees and
compensation of agents and employees paid for services rendered
on behalf of the Banks, which shall not have been reimbursed by
the Company and (ii) to indemnify and hold harmless the
Administrative Agent and any of its directors, officers,
employees or agents, on demand, in the amount of such pro rata
share, from and against any and all liabilities, taxes,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by or asserted
against it in its capacity as the Administrative Agent or any of
them in any way relating to or arising out of this Agreement or
any action taken or omitted by it or any of them under this
Agreement, to the extent the same shall not have been reimbursed
by the Company; provided, however, that no Bank shall be liable
to the Administrative Agent or any such director, officer,
employee or agent for any
<PAGE>66
portion of such liabilities, taxes,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from the gross
negligence or willful misconduct of the Administrative Agent or
any of its directors, officers, employees or agents.
Each Bank acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other Bank
and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter
into this Agreement. Each Bank also acknowledges that it will,
independently and without reliance upon the Administrative Agent
or any other Bank and based on such documents and information as
it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon
this Agreement, any related agreement or any document furnished
hereunder.
ARTICLE IX
Miscellaneous
SECTION 9.1. Notices. Except as otherwise expressly
provided herein, notices and other communications provided for
herein shall be in writing and shall be delivered or mailed or
sent by telecopy addressed,
(a) if to the Company, in all cases to it at
330 South Fourth Street
Richmond, Virginia 23219
Telephone: (804) 788-5402
Telecopy: (804) 788-5406
Attention of Secretary;
(b)if to NationsBank, either individually or in its
capacity as Administrative Agent, in all cases to it at
NationsBank Corporate Center
Charlotte, North Carolina 28255
Telephone: (704) 386-7306
Telecopy: (704) 386-9923
Attention of: Agency Services
<PAGE>67
(c)if to Co-Agents or any other Bank, in all cases to
it at the address listed next to its name in Schedule 2.1.
All notices and other communications given to any party
hereto in accordance with the provisions of this Agreement
shall be deemed to have been given (i) on the date of
receipt, if delivered by hand or overnight courier service
or sent by telecopy, (ii) on the date five Business Days
after dispatch if sent by registered or certified mail, and
(iii) on the date of receipt, if by telephone, in each case
addressed to such party as provided in this Section or in
accordance with the latest unrevoked direction from such
party.
SECTION 9.2. No Waivers; Amendments.
(a)No failure or delay of the Administrative Agent or
of any Bank in exercising any power or right hereunder shall
operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and
remedies of the Administrative Agent, the Banks and holders
of the Notes hereunder are cumulative and not exclusive of
any rights or remedies which they would otherwise have. No
waiver of any provision of this Agreement or the Notes nor
consent to any departure by the Company therefrom shall in
any event be effective unless the same shall be permitted by
paragraph (b) below, and then such waiver or consent shall
be effective only in the specific instance and for the
purpose for which given. No notice or demand on the Company
in any case shall entitle the Company to any other or
further notice or demand in similar or other circumstances.
Each holder of any of the Notes shall be bound by any
amendment, modification, waiver or consent authorized as
provided herein, whether or not such Note shall have been
marked to indicate such amendment, modification, waiver or
consent.
(b)Neither this Agreement nor any provision hereof
may be amended or modified except pursuant to an agreement
or agreements in writing entered into by the Company and the
Required Banks; provided, however, that no such agreement
shall (i) decrease the principal amount of, or extend the
maturity of or the scheduled dates for the payment of
principal of or interest on, any Loan or waive or excuse any
such payment or any
<PAGE>68
part thereof or reduce the rate of
interest on any Loan, without the written consent of each
holder affected thereby, (ii) increase or extend the
Commitment or decrease the Facility Fees of any Bank without
the written consent of each Bank, (iii) amend or modify the
definition of "Required Banks" or the provisions of this
Section 9.2 or Section 9.8 without the written consent of
each Bank, or (iv) amend, modify or otherwise affect the
rights or duties of the Administrative Agent hereunder,
without the written consent of the Administrative Agent.
Each Bank and holder of any Note shall be bound by any
modification or amendment authorized by this Section
regardless of whether its Notes shall be marked to make
reference thereto, and any consent by any Bank or holder of
a Note pursuant to this Section shall bind any person
subsequently acquiring a Note from it, whether or not such
Note shall be so marked.
SECTION 9.3. Right of Setoff. If an Event of Default shall
have occurred and be continuing that in the good faith judgment
of any Bank shall materially compromise in any respect such
Bank's interest as a Bank hereunder, such Bank is hereby
authorized at any time and from time to time, to the fullest
extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing
by such Bank to, or for the credit or the account of, the Company
against any of and all the obligations of the Company now or
hereafter existing under this Agreement held by such Bank,
irrespective of whether or not such Bank shall have made any
demand under this Agreement and although such obligations may be
unmatured. The rights of each Bank under this Section are in
addition to other rights and remedies (including other rights of
setoff) which such Bank may have.
SECTION 9.4. Successors and Assigns.
(a)Whenever in this Agreement any of the parties
hereto is referred to, such reference shall be deemed to
include the permitted successors and assigns of such party;
and all covenants, promises and agreements by or on behalf
of the Company, the Administrative Agent or the Banks that
are contained in this Agreement shall bind and inure to the
benefit of their respective successors and assigns.
(b)Each Bank may assign to one or more assignees all
or a portion of its interests, rights and obligations under
this Agreement (including all or a portion of its Commitment
and the
<PAGE>69
Loans at the time owing to it and the Notes held by
it); provided, however, that (i) except in the case of an
assignment to a Bank or an Affiliate of a Bank, each of the
Company and the Administrative Agent must give its prior
written consent to such assignment (which consent shall not
be unreasonably withheld), (ii) each such assignment shall
be of a constant, and not a varying, percentage of 50% or
more of all the assigning Bank's rights and obligations
under this Agreement, (iii) the amount of the Commitment of
the assigning Bank subject to each such assignment
(determined as of the date the Assignment and Acceptance
with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $20,000,000
(or, if such assigning Bank's Commitment is less than
$20,000,000, such amount), (iv) the parties to each such
assignment shall execute and deliver to the Administrative
Agent an Assignment and Acceptance, together with the Note
or Notes subject to such assignment and a processing and
recordation fee of $3,500 and (v) the assignee, if it shall
not be a Bank, shall deliver to the Administrative Agent an
Administrative Questionnaire. Upon acceptance and recording
pursuant to paragraph (e) of this Section 9.4, from and
after the effective date specified in each Assignment and
Acceptance, which effective date shall be at least five
Business Days after the execution thereof, (A) the assignee
thereunder shall be a party hereto and, to the extent of the
interest assigned by such Assignment and Acceptance, have
the rights and obligations of a Bank under this Agreement
and (B) the assigning Bank thereunder shall, to the extent
of the interest assigned by such Assignment and Acceptance,
be released from its obligations under this Agreement (and,
in the case of an Assignment and Acceptance covering all or
the remaining portion of an assigning Bank's rights and
obligations under this Agreement, such Bank shall cease to
be a party hereto but shall continue to be entitled to the
benefits of Sections 2.12, 2.13, 2.17 and 9.5 (to the extent
that such Bank's entitlement to such benefits arose out of
such Bank's position as a Bank prior to the applicable
assignment), as well as to any Fees accrued for its account
and not yet paid). Notwithstanding the foregoing, any Bank
assigning its rights and obligations under this Agreement
may retain any Competitive Loans made by it outstanding at
such time, and in such case shall retain its rights
hereunder in respect of any Loans so retained until such
Loans have been repaid in full in accordance with this
Agreement.
<PAGE>70
(c)By executing and delivering an Assignment and
Acceptance, the assigning Bank thereunder and the assignee
thereunder shall be deemed to confirm to and agree with each
other and the other parties hereto as follows: (i) such
assigning Bank warrants that it is the legal and beneficial
owner of the interest being assigned thereby, free and clear
of any adverse claim and that its Commitment, and the
outstanding balances of its Loans, in each case without
giving effect to assignments thereof which have not become
effective, are as set forth in such Assignment and
Acceptance, (ii) except as set forth in (i) above, such
assigning Bank makes no representation or warranty and
assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with
this Agreement, or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this
Agreement or any other instrument or document furnished
pursuant hereto, or the financial condition of the Company
or any Subsidiary or the performance or observance by the
Company or any Subsidiary of any of its obligations under
this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee represents and warrants
that it is legally authorized to enter into such Assignment
and Acceptance; (iv) such assignee confirms that it has
received a copy of this Agreement, together with copies of
the most recent financial statements delivered pursuant to
Section 5.4 and such other documents and information as it
has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (v)
such assignee will independently and without reliance upon
the Administrative Agent, such assigning Bank 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 this
Agreement; (vi) such assignee appoints and authorizes the
Administrative Agent to take such action as agent on its
behalf and to exercise such powers under this Agreement as
are delegated to the Administrative Agent by the terms
hereof, together with such powers as are reasonably
incidental thereto; and (vii) such assignee agrees that it
will perform in accordance with their terms all the
obligations which by the terms of this Agreement are
required to be performed by it as a Bank.
(d)The Administrative Agent shall maintain at one of
its offices in Charlotte, North Carolina, a copy of each
Assignment and Acceptance and the names and addresses of the
Banks, and the
<PAGE>71
Commitment of, and principal amount of the
Loans owing to, each Bank pursuant to the terms hereof from
time to time (the "Register"). The entries in the Register
shall be conclusive in the absence of manifest error and the
Company, the Administrative Agent and the Banks may treat
each person whose name is recorded in the Register pursuant
to the terms hereof as a Bank hereunder for all purposes of
this Agreement. The Register shall be available for
inspection by the Company and any Bank at any reasonable
time and from time to time upon reasonable prior notice.
(e)Upon its receipt of a duly completed Assignment
and Acceptance executed by an assigning Bank and an assignee
together with the Note or Notes subject to such assignment,
an Administrative Questionnaire completed in respect of the
assignee (unless the assignee shall already be a Bank
hereunder), the processing and recordation fee referred to
in paragraph (b) above and, if required, the written consent
of the Company and the Administrative Agent to such
assignment, the Administrative Agent shall (i) accept such
Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt
notice thereof to the Banks. Within five Business Days
after receipt of notice, the Company, at its own expense,
shall execute and deliver to the Administrative Agent, in
exchange for the surrendered Committed Note and/or
Competitive Note (x) a new Competitive Note to the order of
such assignee in an amount equal to the Total Commitment and
a new Committed Note to the order of such assignee in an
amount equal to the portion of the Commitment assumed by it
pursuant to such Assignment and Acceptance and, (y) if the
assigning Bank has retained a Commitment, a new Committed
Note to the order of such assigning Bank in a principal -
amount equal to the Commitment retained by it. Such new
Committed Note shall be in an aggregate principal amount
equal to the aggregate principal amount of such surrendered
Committed Note; such new Notes shall be dated the date of
the surrendered Notes which they replace and shall otherwise
be in substantially the form of Exhibit B-1 or Exhibit B-2
hereto, as appropriate. Canceled Notes shall be returned to
the Company.
(f)Each Bank may without the consent of the Company
or the Administrative Agent sell participations to one or
more banks or other entities in all or a portion of its
rights and obligations under this Agreement (including all
or a portion of its Commitment and the Loans owing to it and
the Notes held by
<PAGE>72
it); provided, however, that (i) such
Bank's obligations under this Agreement shall remain
unchanged, (ii) such Bank shall remain solely responsible to
the other parties hereto for the performance of such
obligations, (iii) the participating banks or other entities
shall be entitled to the benefit of the cost protection
provisions contained in Sections 2.12, 2.13 and 2.17 to the
same extent as if they were Banks and (iv) the Company, the
Administrative Agent and the other Banks shall continue to
deal solely and directly with such Bank in connection with
such Bank's rights and obligations under this Agreement, and
such Bank shall retain the sole right to enforce the
obligations of the Company relating to the Loans and to
approve any amendment, modification or waiver of any
provision of this Agreement (other than amendments,
modifications or waivers decreasing any Fees payable
hereunder or the amount of principal of or the rate at which
interest is payable on the Loans, extending the final
scheduled maturity of the Loans or any date scheduled for
the payment of interest on the Loans or extending the
Commitments).
(g)Any Bank or participant may, in connection with
any assignment or participation or proposed assignment or
participation pursuant to this Section 9.4, disclose to the
assignee or participant or proposed assignee or participant
any information relating to the Company furnished to such
Bank by or on behalf of the Company, provided that, prior to
any such disclosure of information designated by the Company
as confidential, each such assignee or participant or
proposed assignee or participant shall execute an agreement
whereby such assignee or participant shall agree (subject to
customary exceptions) to preserve the confidentiality of
such confidential information. It is understood that
confidential information relating to the Company would not
ordinarily be provided in connection with assignments or
participations of Competitive Loans.
(h)Any Bank may at any time assign all or any portion
of its rights under this Agreement and the Notes issued to
it to a Federal Reserve Bank; provided that no such
assignment shall release a Bank from any of its obligations
hereunder.
SECTION 9.5. Expenses; Indemnity. (a) The Company agrees
to pay all reasonable out-of-pocket expenses incurred by the
Administrative Agent in connection with the preparation of this
Agreement or in connection with any amendments, modifications or
waivers of the provisions hereof (whether or not the transactions
<PAGE>73
hereby contemplated shall be consummated) or incurred by the
Administrative Agent or any Bank in connection with the
enforcement or protection of their rights in connection with this
Agreement or in connection with the Loans made or the Notes
issued hereunder, including the reasonable fees, charges and
disbursements of Moore & Van Allen, PLLC, counsel for the
Administrative Agent, and, in connection with any such
enforcement or protection, the reasonable fees, charges and
disbursements of any other counsel for the Administrative Agent
or any Bank. The Company further agrees that it shall indemnify
the Banks from and hold them harmless against any documentary
taxes, assessments or charges made by any Governmental Authority
by reason of the execution and delivery of this Agreement.
(b) The Company agrees to indemnify the Administrative
Agent, each Bank, each of their Affiliates and each of the
foregoing persons' respective directors, officers, employees and
agents (each such person being called an "Indemnitee") against,
and to hold each Indemnitee harmless from, any and all losses,
claims, damages, liabilities and related expenses, including
reasonable counsel fees, charges and disbursements, incurred by
or asserted against any Indemnitee arising out of, in any way
connected with, or as a result of (i) the execution or delivery
of this Agreement or any instrument or agreement contemplated
hereby, the arrangement or syndication of the credit facilities
provided for hereby, performance by the parties hereto of their
respective obligations hereunder or the consummation of the
transactions contemplated hereby, (ii) the use of the proceeds of
the Loans or (iii) any claim, litigation, investigation or
proceeding relating to any of the foregoing, whether or not any
Indemnitee is a party thereto; provided that such indemnity shall
not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses are
determined by a court of competent jurisdiction by final and
nonappealable judgment to have resulted from the gross negligence
or wilful misconduct of such Indemnitee.
SECTION 9.6. Survival of Agreements, Representations and
Warranties, etc. All warranties, representations and covenants
made by the Company herein or in any certificate or other
instrument delivered by it or on its behalf in connection with
this Agreement shall be considered to have been relied upon by
the Banks and shall survive the making of the Loans herein
contemplated and the issuance and delivery to the Banks of the
Notes regardless of any investigation made by the Banks or on
their behalf and shall continue in full force and effect so long
as any amount due or to become due hereunder is outstanding and
unpaid and so long as the Commitments
<PAGE>74
have not been terminated.
All statements in any such certificate or other instrument shall
constitute representations and warranties by the Company
hereunder.
SECTION 9.7. Governing Law. This Agreement and the Notes
shall be construed in accordance with and governed by the laws of
the Commonwealth of Virginia.
SECTION 9.8. Sharing of Setoffs. If one or more Events of
Default shall occur, the holder of any Loan shall have the right,
in addition to and not in limitation of any right which any such
holder may have under applicable law or otherwise, to set off
against the unpaid balance of any Loan or Loans or participation
therein held by it any debt owing to the Company by such holder,
including, without limitation, any funds in any deposit account
maintained by the Company with such holder, and nothing in this
Agreement shall be deemed a waiver or prohibition of any Bank's
right of banker's lien or setoff. Each holder of a Loan agrees
that, if it shall through the exercise of a right of banker's
lien, setoff, counterclaim or otherwise obtain payment (voluntary
or involuntary) in respect of any Loan or Loans as a result of
which the unpaid principal portion of its Loans shall be
proportionately less than the unpaid principal portion of the
Loans of any other Bank, it shall be deemed to have
simultaneously purchased from such other holder a participation
in the Loan held by such other holder so that the aggregate
unpaid principal amount of the Loan or Loans and participations
in Notes held by each holder shall be in the same proportion to
the aggregate unpaid principal amount of all Loans then
outstanding as the principal amount of such Loan held by it prior
to such exercise of banker's lien, setoff or counterclaim or
receipt of other payment was to the principal amount of all Loans
outstanding prior to such exercise of banker's lien, setoff or
counterclaim or receipt of other payment, and it shall promptly
remit to each such holder the amount of the participation thus
deemed to have been purchased. The Company expressly consents to
the foregoing arrangements and agrees that any holder of a
participation in a Loan so acquired may exercise any and all
rights of banker's lien, setoff, counterclaim or otherwise with
respect to any and all moneys owing by such holder to the Company
as fully as if such holder were a holder of a Loan in the amount
of such participation. If all or any portion of any such excess
payment is thereafter recovered from the holder which received
the same, the purchase provided for herein shall be deemed to
have been rescinded to the extent of such recovery, without
interest.
<PAGE>75
SECTION 9.9. Interest Rate Limitation. Notwithstanding
anything herein or in the Notes to the contrary, if at any time
the applicable interest rate, together with all fees and charges
which are treated as interest under applicable law (collectively
the "Charges"), as provided for herein or in any other document
executed in connection herewith, or otherwise contracted for,
charged, received, taken or reserved by any Bank, shall exceed
the maximum lawful rate (the "Maximum Rate") which may be
contracted for, charged, taken, received or reserved by such Bank
in accordance with applicable law, the rate of interest payable
under the Notes held by such Bank, together with all Charges
payable to such Bank, shall be limited to the Maximum Rate.
SECTION 9.10. Entire Agreement. This Agreement constitutes
the entire contract between the parties relative to the subject
matter hereof. Any previous agreement among the parties with
respect to the subject matter hereof is superseded by this
Agreement. Nothing in this Agreement, expressed or implied, is
intended to confer upon any party other than the parties hereto
and thereto any rights, remedies, obligations or liabilities
under or by reason of this Agreement.
SECTION 9.11. Waiver of Jury Trial. Each party hereto
hereby waives, to the fullest extent permitted by applicable law,
any right it may have to a trial by jury in respect of any
litigation directly or indirectly arising out of, under or in
connection with this Agreement. Each party hereto (a) certifies
that no representative, agent or attorney of any other party has
represented, expressly or otherwise, that such other party would
not, in the event of litigation, seek to enforce the foregoing
waiver and (b) acknowledges that it and the other parties hereto
have been induced to enter into this Agreement by, among other
things, the mutual waivers and certifications in this Section
9.11.
SECTION 9.12. Severability. In the event any one or more of
the provisions contained in this Agreement should be held
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. The parties shall endeavor in good-faith negotiations
to replace the invalid, illegal or unenforceable provisions with
valid provisions the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 9.13. Counterparts. This Agreement may be executed
in two or more counterparts, each of which shall constitute an
original
<PAGE>76
but all of which when taken together shall constitute
but one contract, and shall become effective as provided in
Section 9.16.
SECTION 9.14. Headings. Article and Section headings and
the Table of Contents used herein are for convenience of
reference only, are not part of this Agreement and are not to
affect the construction of, or to be taken into consideration in
interpreting, this Agreement.
SECTION 9.15. Jurisdiction; Consent to Service of Process.
(a)The Company hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive
jurisdiction of any Commonwealth of Virginia court or
Federal court of the United States of America sitting in
Virginia, and any appellate court from any thereof, in any
action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in
such Commonwealth of Virginia court or, to the extent
permitted by law, in such Federal court. Each of the
parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced
in other jurisdictions by suit on the judgment or in any
other manner provided by law. Nothing in this Agreement
shall affect any right that any Bank may otherwise have to
bring any action or proceeding relating to this Agreement
against the Company or its properties in the courts of any
jurisdiction.
(b)The Company hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively
do so, any objection which it may now or hereafter have to
the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement in any
Commonwealth of Virginia or Federal court. Each of the
parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any
such court.
(c)Each party to this Agreement irrevocably consents
to service of process in the manner provided for notices in
Section 9.1. Nothing in this Agreement will affect the right
of any party to this Agreement to serve process in any other
manner permitted by law.
<PAGE>77
SECTION 9.16. Binding Effect. This Agreement shall become
effective when it shall have been executed by the Company and the
Administrative Agent and when the Administrative Agent shall have
received copies hereof which, when taken together, bear the
signatures of each Bank, and thereafter shall be binding upon and
inure to the benefit of the Company, the Administrative Agent and
each Bank and their respective successors and assigns, except
that the Company shall not have the right to assign or delegate
any of its rights or duties hereunder or any interest herein
without the prior consent of all the Banks.
[Remainder of Page Intentionally Left Blank]
<PAGE>78
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their duly authorized officers
as of the day and year first above written.
ALBEMARLE CORPORATION,
By:
Name:
Title:
<PAGE>79
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<PAGE>80
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<PAGE>81
Schedule 2.1
to Credit Agreement
Lenders and Commitments
Lender Commitment
------ ------------
THIS PAGE INTENTIONALLY LEFT BLANK
<PAGE>82
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<PAGE>83
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<PAGE>84
Schedule 3.7
Litigation
None.
Schedule 4.1(f)
<PAGE>85
[LETTERHEAD OF ALBEMARLE CORPORATION]
[September 24, 1996]
To the Banks party to the Credit
Agreement referred to below and
NationsBank, N.A., as Administrative Agent
Ladies and Gentlemen:
I am the Senior Vice President, Secretary and General Counsel of
Albemarle Corporation, a Virginia corporation (the "Company"),
and have acted in the capacity of General Counsel in connection
with the Competitive Advance and Revolving Credit Facility
Agreement dated as of September 24, 1996 (the "Credit
Agreement"), among the Company, the financial institutions listed
on Schedule 2.1 thereof (the "Banks"), and NationsBank, N.A., as
administrative agent for the Banks (in such capacity, the
"Agent"). Capitalized terms used herein but not defined herein
shall have the meanings assigned to such terms in the Credit
Agreement. This opinion is being furnished to you at the request
of the Company pursuant to Section 4.1(f) of the Credit
Agreement.
In connection with this opinion, I have examined originals or
copies, certified or otherwise identified to my satisfaction, of
the following documents:
the Credit Agreement and
the Notes
The documents listed above are collectively referred to herein as
the " Documents."
In addition, I have examined: (a) such corporate records of the
Company as I have considered appropriate, including copies of the
articles of incorporation, as amended, and by-laws, as amended,
of the Company certified as in effect on the date hereof
(collectively, the "Charter Documents") and certified copies of
resolutions of the board of directors of the Company; (b)
<PAGE>86
certificates from the Clerk or an Assistant Clerk of the State
Corporation Commission of the Commonwealth of Virginia confirming
the status of the Company as a corporation in good standing under
the laws of the Commonwealth of Virginia; and (c) such other
certificates, agreements and documents as I have deemed relevant
and necessary as a basis for the opinions hereinafter expressed.
In connection with the rendering of this opinion, I have assumed,
without independent investigation, the genuineness of all
signatures other than those of representatives of the Company,
the enforceability of the Documents against each party thereto
other than the Company, the legal capacity of all individuals who
have executed any of the Documents, the authenticity of all
documents submitted to me as originals, the conformity to the
original documents of all documents submitted to me as certified,
photostatic, reproduced or conformed copies of existing
agreements or other documents and the authenticity of all such
latter documents.
Based upon the foregoing, and subject to the assumptions,
limitations and qualifications set forth herein, I am of opinion
that:
1.Each of the Company and each Subsidiary (a) is a
corporation duly incorporated, validly existing and in
good standing under the laws of the jurisdiction of its
organization, (b) has the corporate power and authority
to own its property and to carry on its business as now
conducted and as proposed to be conducted, (c) is
qualified to do business in every jurisdiction where
such qualification is necessary except where the
failure so to qualify would not have a material adverse
effect on the condition, financial or otherwise, of the
Company and its Subsidiaries taken as a whole and (d)
has the corporate power to execute, deliver and perform
its obligations under each of the Documents to which it
is a party and, in the case of the Company, to borrow
thereunder, as applicable, and to execute and deliver
the Notes.
2.The execution, delivery and performance by the Company
of each of the Documents to which it is a party and the
borrowings under the Credit Agreement (a) have been
duly authorized by all requisite corporate action on
the part of the Company and (b) will not (i) violate
<PAGE>87
(A) the Company's Charter Documents or (B) any
applicable order of any Governmental Authority or (ii)
violate, conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a
default under any indenture, any agreement for borrowed
money, any bond, note or similar instrument or any
other material agreement to which the Company or any of
its subsidiaries or any of its property is bound or
(iii) result in the creation or imposition of any Lien
of any nature whatsoever upon any property or assets
now owned or hereafter acquired of the Company or any
of its subsidiaries.
3.The Credit Agreement and Notes have been duly executed
and delivered by the Company and each constitutes the
legal, valid and binding obligation of the Company
enforceable against the Company in accordance with its
terms, subject to applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium and
similar laws affecting the rights of creditors
generally and to general principals of equity
(regardless of whether considered in a proceeding in
equity or at law).
4.The execution, delivery and performance by the Company
of each of the Documents to which it is a party and the
borrowings under the Credit Agreement do not and will
not violate any provision of any law, statute, rule or
regulation.
5.There are no actions, suits or proceedings at law or in
equity or by or before any Governmental Authority now
pending or threatened against, or affecting the Company
or any of its subsidiaries or any business, property or
rights of any such person (a) that involve any Document
or (b) that could reasonably be expected, individually
or in the aggregate, to result in a Material Adverse
Effect.
6.No action, consent or approval of, or registration or
filing with, or any other action by, any Governmental
Authority is or will be required to be obtained by the
Company in connection with the execution, delivery or
performance of any of the Documents.
<PAGE>88
7.The Company is not (a) an "investment company" as
defined in, and is not otherwise subject to regulation
under, the Investment Company Act of 1940 or (b) a
"holding company" as defined in, and is not otherwise
subject to regulation under , the Public Utility
Holding Company Act of 1935.
8.Assuming that the proceeds of the Loans are used for
the purposes set forth in the Credit Agreement, the
making of the Loans will not violate Regulation G, U or
X of the Board of Governors of the Federal Reserve
System of the United States.
The opinions expressed herein are limited to the laws of the
Commonwealth of Virginia and the United States federal law.
This letter is furnished by me solely for your benefit in
connection with the transactions referred to in the Documents and
may not, without my prior written consent, be circulated to, or
relied upon by, any other person or used in any other context.
Very truly yours,
<PAGE>89
Schedule 6.1
Liens
None.
<PAGE>90
EXHIBIT A-1
FORM OF
COMPETITIVE BID REQUEST
NationsBank, N.A.,
as Administrative Agent for the Banks
referred to below,
NationsBank Corporate Center
Charlotte, NC 28255 [Date]
Attention: Jeffrey Pugh
Ladies and Gentlemen:
The undersigned, Albemarle Corporation, a Virginia
corporation (the "Company"), refers to the Competitive Advance
and Revolving Credit Facility Agreement dated as of September 24,
1996 (as amended, modified, extended or restated from time to
time, the "Credit Agreement"), among the Company, the Banks and
Co-Agents party thereto, and NationsBank, N.A., as Administrative
Agent. Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms in the
Credit Agreement. The Company hereby gives you notice pursuant
to Section 2.2(b) of the Credit Agreement that it requests a
Competitive Borrowing under the Credit Agreement, and in that
connection sets forth below the terms on which such Competitive
Borrowing is requested to be made:
(A) Interest Rate Basis. _______ _______ _________
(B) Date of Competitive _______ _______ _________
Borrowing (which is a
Business Day)
(C) Interest Period and the _______ _______ _________
last day thereof
<PAGE>91
(D) Principal Amount of _______ _______ _________
Competitive Borrowing
Upon acceptance of any or all of the Loans offered by the
Banks in response to this request, the Company shall be deemed to
affirm as of such date the representations and warranties made in
the Credit Agreement to the extent specified in Article IV
thereof.
Very truly yours,
ALBEMARLE CORPORATION,
By: -----------------------------
Title: [Responsible Officer]
Copy to:
E. Turner Coggin
NationsBank, N.A.
1111 East Main Street
4th Floor Pavilion
Richmond, VA 23227
<PAGE>92
Exhibit A-2
FORM OF
COMPETITIVE BID INVITATION
[Name of Bank]
[Address]
[Date]
Ladies and GentLemen:
Reference is made to the Competitive Advance and Revolving
Credit Facility Agreement dated as of September 24, 1996 (as
amended, modified, extended or restated from time to time, the
"Credit Agreement"), among Albemarle Corporation, a Virginia
corporation (the "Company"), the Banks and Co-Agents party
thereto, and NationsBank, N.A., as Administrative Agent.
Capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to such terms in the Credit
Agreement. The Company made a Competitive Bid Request on
_______, 19___, pursuant to Section 2.3(a) of the Credit
Agreement, and in that connection you are invited to submit a
Competitive Bid by [Date]/[Time]. Your Competitive Bid must
comply with Section 2.3(b) of the Credit Agreement and the terms
set forth below on which the Competitive Bid Request was made:
(A) Interest Rate Basis
---------------------------
(B) Date of Competitive
Borrowing
---------------------------
(C) Interest Period and the
Last day thereof
---------------------------
<PAGE>93
(D) Principal Amount of $
Competitive Borrowing
Very truly yours,
NATIONSBANK, N.A.,
as Administrative Agent,
by
Title:
<PAGE>94
Exhibit A-3
FORM OF
COMPETITIVE BID
NationsBank, N.A.,
as Administrative Agent for the Banks
referred to below,
NationsBank Corporate Center
Charlotte, NC 28255
[Date]
Attention: Jeffrey Pugh
Ladies and Gentlemen:
The undersigned, [Name of Bank], refers to the Competitive
Advance and Revolving Credit Facility Agreement dated as of
September __, 1996 (as amended, modified, extended or restated
from time to time, the "Credit Agreement"), among Albemarle
Corporation, a Virginia corporation (the "Company"), the Banks
and Co-Agents party thereto, and NationsBank, N.A., as
Administrative Agent. Capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to such
terms in the Credit Agreement. The undersigned hereby makes a
Competitive Bid Request pursuant to Section 2.3(b) of the Credit
Agreement, in response to the Competitive Bid Request made by the
Company on _________, 19__, and in that connection sets forth
below the terms on which such Competitive Bid is made:
(A) Interest Period and
last day thereof
---------- ---------- -----------
(B) Principal Amount $ $ $
---------- ---------- -----------
<PAGE>95
(C) Competitive Bid Rate
The undersigned hereby confirms that it is prepared, subject
to the conditions set forth in the Credit Agreement, to extend
credit to the Company upon acceptance by the Company of this bid
in accordance with Section 2.3(d) of the Credit Agreement.
Very truly yours,
[NAME OF BANK],
by
--------------------
Title:
Copy to:
E. Turner Coggin
NationsBank, N.A.
1111 East Main Street
4th Floor Pavilion
Richmond, VA 23227
<PAGE>96
EXHIBIT A-4
FORM OF COMPETITIVE BID ACCEPT/REJECT LETTER
[Date]
NationsBank, N.A.,
as Administrative Agent
for the Banks referred to below
NationsBank Corporate Center
Charlotte, NC 28255
Attention: Jeffrey Pugh
Ladies and Gentlemen:
The undersigned, Albemarle Corporation (the "Company"),
refers to the Competitive Advance and Revolving Credit Facility
Agreement dated as of September 24, 1996 (as amended, modified,
extended or restated from time to time, the "Credit Agreement"),
among the Company, the Banks and Co-Agents party thereto, and
NationsBank, N.A., as Administrative Agent.
In accordance with Section 2.3(c) of the Credit Agreement,
we have received a summary of bids in connection with our
Competitive Bid Request dated _________ and in accordance with
Section 2.3(d) of the Credit Agreement, we hereby accept the
following bids for maturity on [date]:
Principal Amount Fixed Rate/Margin Bank
$ [%]/[+/-.%]
$
We hereby reject the following bids:
Principal Amount Fixed Rate/Margin Bank
$ [%]/[+/-.%]
$
<PAGE>97
The $__________ should be deposited in NationsBank, N.A.
account number [_________________] on [date].
Very truly yours,
ALBEMARLE CORPORATION,
by
----------------------
Name:
Title:
<PAGE>98
EXHIBIT A-5
FORM OF
COMMITTED BORROWING REQUEST
NationsBank, N.A.,
as Administrative Agent for the Banks
referred to below,
NationsBank Corporate Center
Charlotte, NC 28255 [Date]
Attention: Jeffrey Pugh
Ladies and Gentlemen:
The undersigned, Albemarle Corporation, a Virginia
corporation (the "Company"), refers to the Revolving Credit
Facility Agreement dated as of September 24, 1996 (as amended,
modified, extended or restated from time to time, the "Credit
Agreement"), among the company, the Banks and Co-Agents party
thereto, and NationsBank, N.A., as Administrative Agent.
Capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to such terms in the Credit
Agreement. The Company hereby gives you notice pursuant to
Section 2.2(a) of the Credit Agreement that it requests a
Committed Borrowing under the Credit Agreement, and in that
connection sets forth below the terms on which such Committed
Borrowing is requested to be made:
(A) Interest Rate Basis. _______ _______ _________
(B) Date of Committed _______ _______ _________
Borrowing (which is a
Business Day)
(C) Interest Period and the _______ _______ _________
last day thereof
<PAGE>99
(D) Principal Amount of _______ _______ _________
Committed Borrowing
Upon acceptance of any or all of the Loans in response to
this request, the Company shall be deemed to affirm as of such
date the representations and warranties made in the Credit
Agreement to the extent specified in Article IV thereof.
Very truly yours,
ALBEMARLE CORPORATION,
By:______________________
Name:
Title:
Copy to:
E. Turner Coggin
NationsBank, N.A.
1111 East Main Street
4th Floor Pavilion
Richmond, VA 23227
<PAGE>100
EXHIBIT B-1
FORM OF COMPETITIVE NOTE
$[5,000,000.00] Richmond,Virginia
September 24, 1996
FOR VALUE RECEIVED, the undersigned, ALBEMARLE CORPORATION,
a Virginia corporation (the "Company"), hereby promises to pay to
the order of [_________] (the "Bank"), at the office of
NationsBank, N.A. (the "Agent"), at NationsBank Corporate Center,
Charlotte, North Carolina 28255, (i) on the last day of each
Interest Period as defined in the Competitive Advance and
Revolving Credit Facility Agreement dated as of September 24,
1996, among the Company, the Banks and Co-Agents party thereto,
and the Agent (as amended, modified, extended or restated from
time to time, the "Credit Agreement"), the aggregate unpaid
principal amount of all Competitive Loans made by the Bank to the
Company pursuant to Section 2.3 of the Credit Agreement to which
such Interest Period applies and (ii) on the Maturity Date (as
defined in the Credit Agreement), the lesser of the principal sum
of [____________] Dollars ($[_________]) and the aggregate unpaid
principal amount of all Competitive Loans made by the Bank to the
Company pursuant to Section 2.3 of the Credit Agreement, in
lawful money of the United States of America in immediately
available funds, and to pay interest from the date hereof on such
principal amount from time to time outstanding, in like funds, at
said office, at the rate or rates per annum and payable on the
dates determined pursuant to the Credit Agreement.
The Company promises to pay interest, on demand, on any
overdue principal and, to the extent permitted by law, overdue
interest from their due dates at the rate or rates determined as
set forth in the Credit Agreement.
The Company hereby waives diligence, presentment, demand,
protest and notice of any kind whatsoever. The nonexercise by
the holder of any of its rights hereunder in any particular
instance shall not constitute a waiver thereof in that or any
subsequent instance.
<PAGE>101
All borrowings evidenced by this Competitive Note and all
payments and prepayments of the principal hereof and interest
hereon and the respective dates thereof shall be endorsed by the
holder hereof on the schedule attached hereto and made a part
hereof, or on a continuation thereof which shall be attached
hereto and made a part hereof, or otherwise recorded by such
holder in its internal records; provided, however, that the
failure of the holder hereof to make such a notation or any error
in such a notation shall not in any manner affect the obligations
of the Company to make payments of principal and interest in
accordance with the terms of this Competitive Note and the Credit
Agreement.
This Competitive Note is one of the Competitive Notes
referred to in the Credit Agreement which, among other things,
contains provisions for the acceleration of the maturity hereof
upon the happening of certain events, for prepayment of the
principal hereof prior to the maturity thereof under certain
circumstances and for the amendment or waiver of certain
provisions of the Credit Agreement, all upon the terms and
conditions therein specified. This Competitive Note shall be
construed in accordance with and governed by the laws of the
Commonwealth of Virginia and any applicable laws of the United
States of America.
ALBEMARLE CORPORATION,
By:______________________________
Name:
Title:
<PAGE>102
Loans and Payments
Date Amount Interest Interest Payments Unpaid Name of
of Loan Rate Period Principal/ Principal Person
Interest Balance of Making
Note Notation
-------- ---------- ---------- ----------- ---------- --------
<PAGE>103
EXHIBIT B-2
FORM OF COMMITTED NOTE
$_______________ Richmond, Virginia
September 24, 1996
FOR VALUE RECEIVED, the undersigned, ALBEMARLE CORPORATION,
a Virginia corporation (the "Company"), hereby promises to pay to
the order of _______________ (the "Bank"), at the office of
NationsBank, N.A. (the "Agent"), at NationsBank Corporate Center,
Charlotte, North Carolina 28225, on (i) the last day of each
Interest Period as defined in the Competitive Advance and
Revolving Credit Facility Agreement dated as of September 24,
1996, among the Company, the Banks and Co-Agents party thereto,
and the Agent (as amended, modified, extended or restated from
time to time, the "Credit Agreement"), the aggregate unpaid
principal amount of all Committed Loans made by the Bank to the
Company pursuant to Sections 2.2 and 2.4 of the Credit Agreement
to which such Interest Period applies and (ii) the Maturity Date,
the lesser of the principal sum of ______________ Dollars
($__________) and the aggregate unpaid principal amount of all
Committed Loans made by the Bank to the Company pursuant to
Sections 2.2 and 2.4 of the Credit Agreement, in lawful money of
the United States of America in immediately available funds, and
to pay interest from the date hereof on such principal amount
from time to time outstanding, in like funds, at said office, at
a rate or rates per annum and payable on the dates determined
pursuant to the Credit Agreement.
The Company promises to pay interest, on demand, on any
overdue principal and, to the extent permitted by law, overdue
interest from their due dates at the rate or rates determined as
set forth in the Credit Agreement.
The Company hereby waives diligence, presentment, demand,
protest and notice of any kind whatsoever. The nonexercise by
the holder of any of its rights hereunder in any particular
instance shall not constitute a waiver thereof in that or any
subsequent instance.
<PAGE>104
All borrowings evidenced by this Committed Note and all
payments and prepayments of the principal hereof and interest
hereon and the respective dates thereof shall be endorsed by the
holder hereof on the schedule attached hereto and made a part
hereof, or on a continuation thereof which shall be attached
hereto and made a part hereof, or otherwise recorded by such
holder in its internal records; provided, however, that the
failure of the holder hereof to make such a notation or any error
in such a notation shall not in any manner affect the obligations
of the Company to make payments of principal and interest in
accordance with the terms of this Committed Note and the Credit
Agreement.
This Committed Note is one of the Committed Notes referred
to in the Credit Agreement which, among other things, contains
provisions for the acceleration of the maturity hereof upon the
happening of certain events, for prepayment of the principal
hereof prior to the maturity thereof and for the amendment or
waiver of certain provisions of the Credit Agreement, all upon
the terms and conditions therein specified. This Committed Note
shall be construed in accordance with and governed by the laws of
the Commonwealth of Virginia and any applicable laws of the
United States of America.
ALBEMARLE CORPORATION
By:________________________
Name:
Title:
<PAGE>105
Date Amount Type of Interest Payments Unpaid Name of
of Loan Loan Period Principal/ Principal Person
Interest Balance of Making
Note Notation
- ---- -------- ------ --------- --------- ----------- --------
<PAGE>106
EXHIBIT C
FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Competitive Advance and Revolving
Credit Facility Agreement dated as of September 24, 1996, (as
amended, modified, extended or restated from time to time, the
"Credit Agreement"), among Albemarle Corporation, a Virginia
corporation (the "Company"), the Banks party hereto (the
"Banks"), NationsBank, N.A., as administrative agent for the
Banks (in such capacity, the "Agent"), and Bank of America
Illinois, The Bank of New York and The Chase Manhattan Bank, as
Co-Agents. Terms defined in the Credit Agreement are used herein
with the same meanings.
1. The Assignor hereby sells and assigns, without
recourse, to the Assignee, and the Assignee hereby purchases and
assumes, without recourse, from the Assignor, effective as of the
Effective Date set forth on the following page, the interests set
forth on the following page (the "Assigned Interest") in the
Assignor's rights and obligations under the Credit Agreement,
including, without limitation, the interests set forth on the
following page in the Commitment of the Assignor on the Effective
Date and the Loans owing to the Assignor which are outstanding on
the Effective Date, together with unpaid interest accrued on the
assigned Loans to the Effective Date and the amount, if any, set
forth on the following page of the Fees accrued to the Effective
Date for the account of the Assignor. Each of the Assignor and
the Assignee hereby makes and agrees to be bound by all the
representations, warranties and agreements set forth in Section
9.4(c) of the Credit Agreement, a copy of which has been received
by each such party. From and after the Effective Date (i) the
Assignee shall be a party to and be bound by the provisions of
the Credit Agreement and, to the extent of the interests assigned
by this Assignment and Acceptance, have the rights and
obligations of a Bank thereunder and under the Credit Agreement
or any other document issued in connection therewith and (ii) the
Assignor shall, to the extent of the interests assigned by this
Assignment and Acceptance, relinquish its rights and be released
from its obligations under the Credit Agreement.
<PAGE>107
2. This Assignment and Acceptance is being delivered to
the Agent together with (i) the Notes evidencing the Loans
included in the Assigned Interest, (ii) if the Assignee is
organized under the laws of a jurisdiction outside the United
States, the forms prescribed by the Internal Revenue Service of
the United States certifying as to the Assignee's exemption from
withholding taxes with respect to all payments to be made to the
Assignee under the Credit Agreement or such other documents as
are necessary to indicate that all such payments are subject to
such tax at a rate reduced by an applicable tax treaty, all duly
completed and executed by such Assignee, (iii) if the Assignee is
not already a Bank under the Credit Agreement, an Administrative
Questionnaire and (iv) a processing and recordation fee of
$3,500.
3. This Assignment and Acceptance shall be governed by and
construed in accordance with the laws of ____________.
<PAGE>108
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of Assignment
(may not be fewer than 5
Business Days after the Date
of Assignment):
Facility Principal Amount Assigned(and Percentage Assigned of
Identifying information as to Facility and Commitment
individual Competitive Loans) (set forth, to at least 8
decimal, as a percentage of
the Facility and the
aggregate Commitments of all
banks thereunder
------------ ------------------------------ -----------------------------
Commitment
Assigned $ %
Committed
Loans $ %
Competitive
Loans $ %
Fees Assigned
(if any) $ %
The terms set forth above and on the preceding page are hereby agreed to:
[Accepted]
- -----------------------, as Assignor NATIONSBANK, N.A.,
as Administrative Agent
By:------------------- By: ----------------------
Name: Name:
Title: Title:
--------------------, as Assignee ALBEMARLE CORPORATION,
By: -------------------- By: -------------------
Name: Name:
Title: Title:
<PAGE>109
EXHIBIT D
ADMINISTRATIVE QUESTIONNAIRE
ALBEMARLE CORPORATION
Please accurately complete the following information and return
via FAX to the attention of Jeffrey Pugh at NationsBank, N.A. as
soon as possible.
FAX Number: (704) 388-9436
LEGAL NAME OF YOUR INSTITUTION TO APPEAR IN DOCUMENTATION:
- ----------------------------------------------
GENERAL INFORMATION - DOMESTIC RATE LENDING OFFICE:
Institution Name: ----------------------------
Street Address: ----------------------------
City, State, Zip Code:---------------------------
GENERAL INFORMATION - EURODOLLAR LENDING OFFICE:
Institution Name: --------------------------
Street Address: --------------------------
City, State, Zip Code: ----------------------------
CREDIT CONTACTS/NOTIFICATION METHODS:
Primary Contact: ------------------
Street Address: ------------------
City, State, Zip Code: ---------------
Phone Number: ------------------------
FAX Number: -----------------------
Backup Credit Contact:------------------
Street Address: ----------------------
City, State, Zip Code: --------------------
Phone Number:
FAX Number:
TAX WITHHOLDING:
<PAGE>110
UNITED STATES
Non-Resident Alien or Foreign Corporation or other Foreign
Entity
-------YES ----- NO
If yes, please enclose Form 4224, 1001 or W-8. If no,
please enclose Form W-9.
Tax ID Number --------------
CONTACTS/NOTIFICATION METHODS:
ADMINISTRATIVE CONTACTS BORROWINGS, PAYDOWNS, INTEREST, FEES,
ETC.
Contact: -----------------
Street Address:-----------------
City, State, Zip Code:------------------
Phone Number: ----------------------
FAX Number:-------------------------
Telex & Answer Back: ---------------
PAYMENT INSTRUCTIONS:
Name of Bank where funds are to be transferred:
------------------------------------
Routing Transit/ABA number of Bank where funds are to be
transferred: -----------------------------
Name of Account, if applicable: ----------------------------
Account Number:-----------------------------
Additional Information: ----------------------------
BID LOAN NOTIFICATIONS:
Contact:-------------------------
Street Address: --------------------------
City, State, Zip Code:------------------------------
Phone Number:------------------------------
Fax Number:-----------------------
MAILINGS:
Please specify who should receive financial information:
Name:----------------------
Street Address: --------------------
<PAGE>111
City, State, Zip Code:-------------------
It is very important that all of the above information is
accurately filled in and returned promptly. If there is someone
other than yourself who should receive this questionnaire, please
notify us of their name and FAX number and we will FAX them a
copy of the questionnaire. If you have any questions, please
call Jeffrey Pugh (704-386-9046) or Mary Blau (704-388-1335).
