ITEM 14
EXHIBIT 10.9
FIRST AMENDMENT AND CONSENT
TO
LOAN AGREEMENT
THIS FIRST AMENDMENT AND CONSENT TO LOAN AGREEMENT dated as of August 23,
1996 (this "First Amendment") is entered into among ▇▇▇▇▇▇▇▇▇▇ Holding
Corporation, a Delaware corporation ("Holdings"), ▇. ▇▇▇▇▇▇▇▇▇▇ & Co., Inc., a
New York corporation (the "Company"), Pegasus Polymers International Inc., a
Connecticut corporation ("Pegasus"), and ▇▇▇▇▇▇▇▇▇▇ International, Ltd., a New
York corporation ("▇▇▇▇▇▇▇▇▇▇ International"; and together with the Company and
Pegasus, the "Borrowers"), and FINOVA Capital Corporation, a Delaware
corporation ("Lender"), and relates to that certain Loan Agreement dated as of
February 9, 1996 (as supplemented or otherwise modified from time to time prior
to the "First Amendment Effective Date" (as defined in Section 7 below), the
"Loan Agreement"), among Holdings, the Borrowers, and Lender.
W I T N E S S E T H:
WHEREAS, the Company plans to form a two new Wholly Owned Subsidiaries,
▇▇▇▇▇▇▇▇▇▇ Financial Corporation, a Delaware corporation ("Finsub"), and
Polymers International Financial Corporation, a Delaware corporation
("Finsub2");
WHEREAS, the Company, ▇▇▇▇▇▇▇▇▇▇ International, Finsub and Finsub2 plan to
enter into the Permitted Receivables Transaction Documents (as defined in
Section 2.1(q) below);
WHEREAS, proceeds of the sale of Receivables by the Company and ▇▇▇▇▇▇▇▇▇▇
International under the Permitted Receivables Transaction Documents (i) if such
proceeds are in the form of cash, shall constitute Net Cash Proceeds and shall,
to the extent provided in the First Amendment to Senior Revolving Credit
Agreement, as defined in Section 2.1(h) hereof, be applied as a mandatory
prepayment to the outstanding Senior Revolving Obligations or (ii) if such
proceeds are in the form of promissory notes, shall be pledged to Lender for its
benefit, but in all events subject to the prior pledge in favor of the Revolving
Credit Agent, for the benefit of the "Secured Parties" under (and as defined in)
the respective "Borrower Pledge Agreements" to which the Company and ▇▇▇▇▇▇▇▇▇▇
International are a party and which constitute a portion of the Senior Revolving
Loan Documents;
WHEREAS, Pegasus and Finsub2 plan to enter into the Multicurrency Loan
Documents (as defined in Section 2.1(q) of the First Amendment to Senior
Revolving Credit Agreement);
WHEREAS, during the period that the Multicurrency Loan Documents are in
effect, the loan facility evidenced by the Multicurrency Loan Documents shall
replace the "Multicurrency Facility" as defined under the Senior Revolving
Credit Agreement;
WHEREAS, the Borrowers have requested that Lender (i) approve the Permitted
Receivables Financing Program and the execution by the Company, ▇▇▇▇▇▇▇▇▇▇
International, Finsub and Finsub2 of the Permitted Receivables Transaction
Documents, (ii) release its Liens on the Receivables sold from time to time
pursuant to the Permitted Receivables Transaction Documents, (iii) enter into
the Permitted Receivables Intercreditor Agreement (as defined in Section 2.1(o)
below), and (iv) approve the execution by Pegasus and Finsub2 of the
Multicurrency Loan Documents; and
WHEREAS, the Company and the other Borrowers have requested the Lender to
amend the Loan Agreement to effect certain amendments as described herein.
NOW, THEREFORE, in consideration of the above premises, Holdings, the
Borrowers, and Lender agree as follows:
1. Definitions. Capitalized terms used and not otherwise defined herein
have the meanings assigned to them in the Loan Agreement.
2. Amendments to the Loan Agreement. Upon the "First Amendment Effective
Date" (as defined in Section 7 below), the Loan Agreement is hereby amended as
follows:
2.1 Section 1.01. Section 1.01 of the Loan Agreement is amended as
follows:
(a) The following definition of "Average Liquidity" is added in
proper alphabetical order:
"Average Liquidity" shall have the meaning ascribed to such
term from time to time in the Senior Revolving Credit Agreement.
(b) The definition of "Borrower Junior Pledge Agreements" is
deleted in its entirety and the following definition is substituted in
lieu thereof:
"Borrower Junior Pledge Agreements" means (i) the Junior
Pledge Agreement dated as of the Closing Date by and between the
Company and Lender, (ii) the Junior Pledge Agreement dated as of
the Closing Date by and between ▇▇▇▇▇▇▇▇▇▇ International and
Lender, (iii) the Junior Pledge Agreement dated as
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of the First Amendment Effective Date by and between Pegasus and
Lender, in each case in substantially the form of Exhibit C, and
(iv) all other pledge agreements executed by any Borrower in
favor of Lender in connection with the transactions contemplated
hereby, as each of the same may be amended, supplemented or
otherwise modified from time to time.
(c) The definition of "Collateral" is amended to delete the words
"the initial sale" therein and to substitute in lieu thereof the words
"all sales";
(d) The following definition of "Early Amortization Event" is
added in proper alphabetical order:
"Early Amortization Event" is defined on Schedule 1.01.7.
(e) The definition of "Finsub" is deleted in its entirety and the
following definition is substituted in lieu thereof:
"Finsub" means ▇▇▇▇▇▇▇▇▇▇ Financial Corporation, a Delaware
corporation and a Wholly Owned Subsidiary of the Company.
(f) The following definition of "Finsub2" is added in proper
alphabetical order:
"Finsub2" means Polymers International Financial
Corporation, a Delaware corporation and Wholly Owned Subsidiary
of Pegasus.
(g) The following definition of "First Amendment" is added in
proper alphabetical order:
"First Amendment" means the First Amendment and Consent to
Loan Agreement dated as of August 23, 1996, among Holdings, the
Borrowers and Lender.
(h) The following definition of "First Amendment to Senior
Revolving Credit Agreement" is added in proper alphabetical order:
"First Amendment to Senior Revolving Credit Agreement" means
the First Amendment, Consent and Limited Waiver to Credit
Agreement dated as of August 23, 1996 by and among the various
parties to the Senior Revolving Credit Agreement.
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(i) The following definition of "First Amendment Effective Date"
is added in proper alphabetical order:
"First Amendment Effective Date" has the meaning set forth
in the First Amendment.
(j) The definition of "Intercreditor Agreement" is deleted in its
entirety and the following definition of "Intercreditor Agreements" is
substituted in lieu thereof:
"Intercreditor Agreements" means the Permitted Receivables
Intercreditor Agreement and the Term Loan Intercreditor
Agreement, and "Intercreditor Agreement" means either of them.
(k) The definition of "Loan Documents" is amended (i) to delete
in its entirety the reference therein to "Intercreditor Agreement" and
substitute in lieu thereof "Intercreditor Agreements" and (ii) to add
the following phrase before the period at the end of the last sentence
thereof: "or the Multicurrency Loan Documents".
(l) The following definition of "Multicurrency Lender" is added
in proper alphabetical order:
"Multicurrency Lender" means Citibank, N.A., in its capacity
as the lender under the Multicurrency Loan Documents, and its
successors in such capacity.
(m) The following definition of "Multicurrency Loan Documents" is
added in proper alphabetical order:
"Multicurrency Loan Documents" has the meaning set forth in
Section 2.1(q) of the First Amendment to Senior Revolving Credit
Agreement, as in effect from time to time.
(n) The definition of "Permitted Receivables Financing Program"
is deleted in its entirety and the following definition is substituted
in lieu thereof:
"Permitted Receivables Financing Program" means the
receivables financing program evidenced by the Permitted
Receivables Transaction Documents.
(o) The following definition of "Permitted Receivables
Intercreditor Agreement" is added in proper alphabetical order:
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"Permitted Receivables Intercreditor Agreement" means the
Intercreditor Agreement dated as of the First Amendment Effective
Date among Citicorp North America, Inc., as program agent,
Finsub, the Company, Bankers Trust Company, as trustee, the
Revolving Credit Agent, Citibank Canada, Lender, and Ambac
Indemnity Corporation, as the same may be amended, supplemented
or otherwise modified from time to time.
(p) The following definition of "Permitted Receivables Pooling
and Servicing Agreement" is added in proper alphabetical order:
"Permitted Receivables Pooling and Servicing Agreement"
means the Pooling and Serving Agreement dated as of the First
Amendment Effective Date among Finsub, the Company and Bankers
Trust Company, as trustee, as the same may be amended,
supplemented or otherwise modified from time to time.
(q) The definition of "Permitted Receivables Transaction
Documents" is deleted in its entirety and the following definition is
substituted in lieu thereof:
"Permitted Receivables Transaction Documents" means the
Permitted Receivables Pooling and Servicing Agreement and the
other agreements, documents and instruments set forth on Schedule
1.01.7 and all other instruments, agreements and written
Contractual Obligations entered into in connection with any of
the foregoing, in each case as the same may be amended,
supplemented or otherwise modified from time to time.
(r) The following definition of "Series 1996-1 Supplement" is
added in proper alphabetical order:
"Series 1996-1 Supplement" means the Series 1996- 1
Supplement to the Permitted Receivables Pooling and Servicing
Agreement, as such supplement may be amended, supplemented or
otherwise modified from time to time.
(s) The following definition of "Series 1996-2 Certificate" is
added in proper alphabetical order:
"Series 1996-2 Certificate" means the Series 1996-2
Certificate issued pursuant to the Series 1996-2 Supplement to
the Permitted Receivables Pooling and Servicing Agreement.
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(t) The following definition of "Term Loan Intercreditor
Agreement" is added in proper alphabetical order:
"Term Loan Intercreditor Agreement" means the Intercreditor
Agreement dated as of the Closing Date between Lender and the
Revolving Credit Agent, as the same may be amended, supplemented
or otherwise modified from time to time.
(u) The definition of "Transaction Documents" is amended to add
the phrase ", the Permitted Receivables Transaction Documents, the
Multicurrency Loan Documents," immediately following the reference
therein to "the Senior Revolving Loan Documents".
(v) The following definition of "Trust Early Amortization Event"
is added in proper alphabetical order:
"Trust Early Amortization Event" is defined on Schedule
1.01.7.
2.2 Section 6.01(c). Section 6.01(c) of the Loan Agreement is hereby
amended to delete each reference to the phrase "as of the Closing Date"
therein and to substitute in lieu thereof the phrase "as of the First
Amendment Effective Date".
2.3 Section 9.01. Section 9.01 of the Loan Agreement is hereby
amended as follows:
(a) Clause (h) thereof is amended to add the phrase "and pursuant
to the Multicurrency Loan Documents" immediately following the
reference to "Permitted Receivables Transaction Documents" therein;
(b) Clause (j) thereof is amended to delete in their entirety
subclauses (D) and (E) thereof and substitute in lieu thereof the
following:
"(D) from any Borrower to any Subsidiary of the
Company (other than Borrowers) in a principal
amount, together with any Investments made (1)
after the First Amendment Effective Date in Finsub
and Finsub2 and (2) after the Closing Date in any
such Subsidiaries of the Company (other than
Finsub and Finsub2) permitted to be created or
capitalized after the Closing Date under Section
9.07(b), in any Fiscal Year not to
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exceed the Subsidiary Investment Basket for such
Fiscal Year, (E) in addition to any loans made to
such Person under clause (D) above, from Pegasus
to Pegasus Polymers Asia Ltd. ("PPAL") in an
amount at any time outstanding not to exceed the
sum of (1) $2,000,000, plus (2) the amount of
dividends received by Pegasus from PPAL after the
Closing Date and (F) in addition to any loans made
to such Person under clauses (D) and (E) above,
unless the Revolving Credit Agent has delivered
the notice described in Section 9.02(ii) of the
Senior Revolving Credit Agreement, from the
Company or ▇▇▇▇▇▇▇▇▇▇ International to Finsub in
respect of subordinated loans advanced as part of
the purchase price for Receivables sold to Finsub
under the Permitted Receivables Transaction
Documents; provided, that no loans permitted by
clauses (D) or (E) shall be made if an Event of
Default or Default has occurred and is
continuing;"
2.4 Section 9.03. Section 9.03 of the Loan Agreement is hereby
amended as follows:
(a) Clause (g) thereof is amended to delete the word "and" at the
end thereof;
(b) Clause (h) thereof is amended to delete the period at the end
thereof and to substitute in lieu thereof "; and"; and
(c) The following clause (i) is added thereto:
"(i) Liens on the Series 1996-2 Certificate held
by Finsub2 and pledged to secure the obligations
of Finsub2 under the Multicurrency Loan
Documents."
2.5 Section 9.04. Section 9.04 of the Loan Agreement is hereby
amended as follows:
(a) Clause (d) thereof is amended to delete the phrase "such
Subsidiaries and Finsub" therein and to substitute in lieu thereof the
phrase "such Subsidiaries, Finsub and Finsub2";
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(b) The "and" at the end of clause (e) thereof is deleted;
(c) The period at the end of clause (f) thereof is replaced with
a semi-colon; and
(d) The following clause (g) is added thereto:
"(g) Investments by Finsub2 in the Series 1996-2
Certificate as contemplated by the Permitted
Receivables Transaction Documents."
2.6 Section 9.05(e). Section 9.05(e) of the Loan Agreement is hereby
amended to delete the provisions thereof in their entirety and to
substitute in lieu thereof the following:
"(v) Accommodation Obligations incurred pursuant to the
Permitted Receivables Transaction Documents and
pursuant to the Multicurrency Loan Documents; and"
2.7 Section 9.06. Section 9.06 of the Loan Agreement is hereby
amended to delete the second proviso thereto and to substitute in lieu
thereof "and provided, further, that cash redemptions permitted under
clause (g) above shall be limited to the excess, if any, of the Average
Liquidity during the thirty days immediately preceding the date set for
such payment over $15,000,000".
2.8 Section 9.07(a). Section 9.07(a) of the Loan Agreement is hereby
amended to insert the following two sentences at the end of such
subsection:
"Finsub shall not engage in any business other than as
contemplated by the Permitted Receivables Transaction
Documents. Finsub2 shall not engage in any business
other than as contemplated by the Multicurrency Loan
Documents."
2.9 Section 9.07(b). Section 9.07(b) of the LoanAgreement is hereby
amended to delete the phrase "Sections 9.01(j)(D) and 9.01(j)(E) for such
Fiscal Year" therein and to substitute in lieu thereof the following:
"Sections 9.01(j)(D), 9.01(j)(E) and 9.01(j)(F)
for such Fiscal Year; provided, further, however,
in addition to such amounts, unless the Revolving
Credit Agent
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has delivered the notice described in Section
9.02(ii) of the Senior Revolving Credit Agreement,
the Company and ▇▇▇▇▇▇▇▇▇▇ International may make
capital contributions to Finsub to the extent
required to be made under the Permitted
Receivables Transaction Documents (i) as part of
the purchase price for Receivables sold to Finsub
thereunder and (ii) to cause the Net Receivables
Balance to equal the Required Net Receivables
Balance (as each such term is defined in the
Senior Revolving Credit Agreement); and provided,
further, however, that Pegasus may capitalize
Finsub2 by making a capital contribution to
Finsub2 on the First Amendment Effective Date in
an aggregate amount equal to 102% of the principal
amount of the Series 1996-2 Certificate purchased
by Finsub2 under the Permitted Receivables
Transaction Documents (it being understood and
agreed that such principal amount shall in no
event exceed $25,000,000)"
2.10 Section 9.16. Section 9.16 of the Loan Agreement is hereby
amended as follows:
(a) Clause (iii)(B) thereof is deleted in its entirety and the
following is substituted in lieu thereof:
(B) the Senior Revolving Loan Documents, the
Common Equity Notes, the Permitted Receivables
Transaction Documents, the Multicurrency Loan
Documents or any documents evidencing the
Permitted Subordinated Indebtedness in any respect
that is adverse to the Lender, provided, that no
Persons other than the Company and ▇▇▇▇▇▇▇▇▇▇
International may be added as sellers of
Receivables to Finsub under the Permitted
Receivables Transaction Documents. For purposes of
applying the preceding clause (iii)(B), a
termination of the Senior Revolving Loan Documents
without replacement of the Indebtedness evidenced
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thereby shall be deemed an event adverse to Lender
absent Lender's prior written consent thereto
(without in any manner limiting Lender's right to
consent in advance to the termination of the
Senior Revolving Loan Documents in circumstances
where the Indebtedness evidenced thereby is
replaced by other Indebtedness on terms adverse to
Lender).
2.11 Section 9.20. Section 9.20 of the Loan Agreement is hereby
amended to add the phrase ", the Multicurrency Loan Documents" immediately
following the reference to "Loan Documents" therein.
2.12 Section 11.01. Section 11.01 of the Loan Agreement is hereby
amended as follows:
(a) Section 11.01(e) is amended to delete the phrase "'Event of
Termination' under and as defined in the Permitted Receivables
Transaction Documents, or which could otherwise cause the early
termination of the Permitted Receivables Financing Program" and to
substitute in lieu thereof "Trust Early Amortization Event; or
purchases of Receivables under the Permitted Receivables Financing
Program shall have been discontinued for a period of at least five (5)
consecutive Business Days".
(b) Section 11.01(n) of the Loan Agreement is amended to delete
the provisions thereof in their entirety and to substitute in lieu
thereof the following:
"(n) Intercreditor Agreements. Any party to any
Intercreditor Agreements (other than Lender) shall
fail to perform any material covenant or material
obligation binding on such party thereunder or any
Intercreditor Agreement shall cease to be in full
force and effect."
3. Amendments to Schedules and Exhibits to Loan Agreement. Upon the First
Amendment Effective Date, the Schedules and Exhibits to the Loan Agreement are
hereby amended as follows:
3.1 Schedule 1.01.1. Schedule 1.01.1 to the Loan Agreement is deleted
in its entirety and Annex A attached hereto and made a part hereof shall be
substituted therefor.
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3.2 Schedule 1.01.7. New Schedule 1.01.7 to the Loan Agreement,
entitled "Permitted Receivables Transaction Documents and Definitions," is
added in the form of Annex B attached hereto and made a part hereof.
3.3 Schedule 6.01-C. Schedule 6.01-C to the Loan Agreement is deleted
in its entirety and Annex C attached hereto and made a part hereof shall be
substituted therefor.
4. Lender Consents.
4.1 As of the First Amendment Effective Date, the Lender hereby
approves (i) the Permitted Receivables Financing Program and the execution,
delivery and performance by the Company, ▇▇▇▇▇▇▇▇▇▇ International, Finsub
and Finsub2 of the Permitted Receivables Transaction Documents, provided
that, concurrently therewith, the Company and ▇▇▇▇▇▇▇▇▇▇ International
shall have made a mandatory prepayment to the Revolving Credit Agent, for
the benefit of the Senior Revolving Lenders, of the Net Cash Proceeds
arising from the initial sale of Receivables pursuant to the Permitted
Receivables Transaction Documents in an amount not less than $50,000,000,
(ii) the transactions evidenced by the Multicurrency Loan Documents
(provided, that for purposes of this Section 4.1, the term Multicurrency
Loan Documents shall only refer to the forms of such documents as they
exist on the First Amendment Effective Date) and the execution, delivery
and performance by Pegasus and Finsub2 thereof, and (iii) to borrow funds
on the First Amendment Effective Date, the proceeds of which shall be used
by Pegasus to make a capital contribution to Finsub2 so that Finsub2 may
pay for the Series 1996-2 Certificate.
4.2 Lender, upon the occurrence of the First Amendment Effective
Date, hereby (i) releases its Liens on the Receivables sold from time to
time pursuant to the Permitted Receivables Transaction Documents
(including, without limitation, all Liens on Dollar denominated Receivables
of the Company and ▇▇▇▇▇▇▇▇▇▇ International which are so sold from time to
time), (ii) agrees to enter into the Permitted Receivables Intercreditor
Agreement and to take all actions required to be taken by Lender thereby.
5. [Intentionally omitted.]
6. Representations and Warranties. Each of the Borrowers hereby
represents and warrants to Lender that, as of the First Amendment Effective Date
and after giving effect to this First Amendment, the First Amendment to Senior
Revolving Credit Agreement, the Permitted Receivables Financing Program and the
effectiveness of the Multicurrency Loan Documents:
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(a) Each of the representations and warranties contained in this
Amendment, the Loan Agreement as amended hereby and the other Loan
Documents are true and correct in all material respects on and as of the
First Amendment Effective Date, as if then made, other than representations
and warranties which expressly speak as of a different date;
(b) No Default or Event of Default has occurred or is continuing; and
(c) No change (other than as contemplated by the Registration
Statement) in the condition (financial or otherwise), business,
performance, assets, operations or prospects of the Borrowers, taken as a
whole, has occurred since December 31, 1994, which change has had or is
reasonably likely to have a Material Adverse Effect.
7. First Amendment Effective Date. This First Amendment shall become
effective as of the date, on or before September 30, 1996 (the "First Amendment
Effective Date") when each of the following conditions shall have been
satisfied:
(a) Lender shall have received each of the following documents, in
each case in form and substance satisfactory to Lender:
(i) counterparts hereof executed by each Borrower, Holdings, and
Lender;
(ii) an Amendatory Agreement in substantially the form of Annex D
attached hereto and made a part hereof;
(iii) UCC amendment statements with respect to each UCC-1
financing statement delivered to Lender as of the Closing Date from
the Company and ▇▇▇▇▇▇▇▇▇▇ International (exclusive of any such UCC-1
financing statements filed or recorded in the State of Texas), giving
effect to the amendments, pursuant to the Amendatory Agreement
referred to in the immediately preceding clause (ii), to the Borrower
Junior Security Agreements executed by the Company and ▇▇▇▇▇▇▇▇▇▇
International;
(iv) (A) stock certificate(s) representing 100% of the Capital
Stock of Finsub, together with stock powers (executed in blank)
therefor shall have been delivered to the Revolving Credit Agent, (B)
all subordinated promissory notes issued to the Company and ▇▇▇▇▇▇▇▇▇▇
International pursuant to the Permitted Receivables Transaction
Documents, endorsed in blank, shall have been delivered to the
Revolving Credit Agent, (C) replacements for the applicable exhibits
to the Borrower Junior Pledge Agreements executed by the Company and
▇▇▇▇▇▇▇▇▇▇ International reflecting the pledge of the property
described in subclauses
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(A) and (B) above, and (D) an acknowledgement of pledge executed by
Finsub;
(v) (A) a Junior Pledge Agreement executed by Pegasus, in
substantially the form of Exhibit D to the Loan Agreement, (B) stock
certificate(s) representing 100% of the Capital Stock of Finsub2,
together with stock powers (executed in blank) therefor shall have
been delivered to the Revolving Credit Agent, and (C) an
acknowledgement of pledge executed by Finsub2;
(vi) a fully executed copy of the Permitted Receivables
Intercreditor Agreement;
(vii) a copy of each of the Permitted Receivables Transaction
Documents, certified as of the First Amendment Effective Date by the
Secretary or an Assistant Secretary of the Company (A) to be a true,
correct and complete copy of each such document and (B) not to have
been amended or rescinded;
(viii) a copy of each of the Multicurrency Loan Documents,
certified as of the First Amendment Effective Date by the Secretary or
an Assistant Secretary of Pegasus (A) to be a true, correct and
complete copy of each such document and (B) not to have been amended
or rescinded;
(ix) a certificate of the chief executive officer, chief
financial officer or treasurer of the Company executed and delivered
on behalf of the Borrowers certifying that all conditions precedent
required to be satisfied by Holdings, the Company, the other Borrowers
or any Subsidiary Guarantor for the effectiveness of this First
Amendment have been satisfied;
(x) a certificate of the Secretary or Assistant Secretary of
Holdings, each Borrower, Finsub and Finsub2 dated the First Amendment
Effective Date certifying (A) the names and true signatures of the
incumbent officers of such Persons authorized to sign this Amendment
and the other Transaction Documents executed in connection with this
Amendment to which it is a party, (B) the By-laws of such Person as in
effect on the date of such certification, (C) the resolutions of such
Person's Board of Directors approving and authorizing the execution,
delivery and performance of this Amendment and the other Transaction
Documents executed in connection with this Amendment to which it is a
party and (D) the Articles or Certificate of Incorporation, certified
by the applicable Government Authority, if not previously delivered to
Lender, or that there have been no changes in the Certificate or
Articles of Incorporation of such
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Person since the date of the most recent certification thereof by the
Secretary of State of the applicable State delivered to Lender;
(xi) Good Standing Certificates relating to the Borrowers, the
Subsidiary Guarantors, Finsub and Finsub2 in the jurisdictions set
forth on Annex E attached hereto and made a part hereof; and
(xii) A favorable opinion of ▇▇▇▇▇▇▇▇▇, Will & ▇▇▇▇▇, counsel to
the Borrowers, Subsidiary Guarantors, Finsub and Finsub2, in form and
substance satisfactory to Lender, and a letter entitling Lender to
rely on any opinion or opinions delivered by ▇▇▇▇▇▇▇▇▇, Will & ▇▇▇▇▇
in connection with the Permitted Receivables Transaction Documents;
and
(xiii) such additional documentation as Lender may reasonably
request.
(b) All conditions to the effectiveness of the First Amendment to
Senior Revolving Credit Agreement, as set forth in Section 7 to the First
Amendment to Senior Revolving Credit Agreement, shall have been satisfied.
(c) Lender shall be satisfied that: (i) the Permitted Receivables
Transaction Documents and the Multicurrency Loan Documents shall have been
duly approved and executed and delivered by the parties thereto in form and
substance satisfactory to Lender, and (ii) all conditions precedent to
closing under the Permitted Receivables Transaction Documents and the
Multicurrency Loan Documents have been satisfied (and no modification or
waiver of any such condition shall have been made without the consent of
Lender) and such documents are, or simultaneously with the execution
hereof, will be in full force and effect.
(d) No law, regulation, order, judgment or decree of any Governmental
Authority shall, and Lender shall not have received any notice that
litigation is pending or threatened which is likely to, enjoin, prohibit or
restrain the consummation of the transactions contemplated by this First
Amendment, except for such laws, regulations, orders or decrees, or pending
or threatened litigation that in the aggregate could not reasonably be
expected to result in a Material Adverse Effect.
(e) Each of the representations and warranties contained in this
Amendment, the Loan Agreement as amended hereby and the other Loan
Documents shall be true and correct in all material respects on and as of
the First Amendment Effective Date, as if then made, other than
representations and warranties which expressly speak as of a different
date.
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(f) All corporate and other proceedings, and all documents,
instruments and other legal matters in connection with the transactions
contemplated by this Amendment shall be satisfactory in all respects in
form and substance to Lender.
(g) No Event of Default or Default shall have occurred and be
continuing on the First Amendment Effective Date.
8. Reference to and Effect on the Loan Documents.
(a) Upon the effectiveness of this Amendment, on and after the date
hereof, each reference in the Loan Agreement as amended hereby to "this
Agreement", "hereunder", "hereof" or words of like import, and each
reference in the other Loan Documents to the Loan Agreement, shall mean and
be a reference to the Loan Agreement as amended hereby.
(b) Except as specifically amended above, all of the terms of the Loan
Agreement and all other Loan Documents shall remain unchanged and in full
force and effect.
(c) The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, operate as a waiver of any right,
power or remedy of Lender under the Loan Agreement or any of the Loan
Documents, nor constitute a waiver of any provision of the Loan Agreement
or any of the Loan Documents.
9. Costs and Expenses. The Borrowers jointly and severally agree to pay
upon demand in accordance with the terms of Section 13.02 of the Loan Agreement
all reasonable costs and expenses of Lender in connection with the preparation,
reproduction, negotiation, execution and delivery of this Amendment and all
other Loan Documents entered into in connection herewith, including, without
limitation, the reasonable fees, expenses and disbursements of ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, counsel for Lender with respect to any of the foregoing.
10. Miscellaneous. This First Amendment is a Loan Document. The headings
herein are for convenience of reference only and shall not alter or otherwise
affect the meaning hereof.
11. Counterparts. This First Amendment may be executed in any number of
counterparts and by the different parties hereto in separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument.
12. GOVERNING LAW. THIS FIRST AMENDMENT SHALL BE INTERPRETED, AND THE
RIGHTS AND LIABILITIES OF THE PARTIES
-16-
HERETO AND TO THE LOAN AGREEMENT AS AMENDED HEREBY DETERMINED, IN ACCORDANCE
WITH THE LAW OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, Lender, the Borrowers and Holdings have caused this
First Amendment to be executed by their respective officers thereunto duly
authorized as of the date first above written.
▇. ▇▇▇▇▇▇▇▇▇▇ & CO., INC.
By: _____________________
Name:
Title:
-17-
PEGASUS POLYMERS
INTERNATIONAL INC.
By: _____________________
Name:
Title:
▇▇▇▇▇▇▇▇▇▇ INTERNATIONAL,
LTD.
By: _____________________
Name:
Title:
▇▇▇▇▇▇▇▇▇▇ HOLDING
CORPORATION
By: _____________________
Name:
Title:
FINOVA CAPITAL CORPORATION
By: _____________________
Name:
Title:
CONSENT
This Consent is attached to and made a part of that certain First Amendment
and Consent to Loan Agreement (the "First Amendment") dated as of August 23,
1996 between ▇▇▇▇▇▇▇▇▇▇ Holding Corporation, ▇. ▇▇▇▇▇▇▇▇▇▇ & Co., Inc., Pegasus
Polymers International Inc., and ▇▇▇▇▇▇▇▇▇▇ International, Ltd. (collectively as
"Borrowers") and FINOVA Capital Corporation ("Lender"). Terms used herein with
initial capital letters, and not otherwise defined herein, shall have the
meanings given such terms in the First Amendment.
The undersigned, constituting not less than the "Requisite Lenders" as such
term is defined in the Term Loan Intercreditor Agreement, hereby consent,
pursuant to Section 5.9 of the Term Loan Intercreditor Agreement, to the
execution and delivery of the First
-18-
Amendment and of each other document or instrument referred to therein,
including without limitation the Amendatory Agreement and the Borrower Junior
Pledge Agreement, which are to be entered into between the parties thereto or
otherwise become effective as of the First Amendment Effective Date.
No other or future consent is given hereby, and the undersigned hereby
expressly reserve their right, to the extent set forth in Section 5.9 of the
Term Loan Intercreditor Agreement, to consent to any future amendments,
modifications, or supplementations to any of the "Term Loan Documents," as such
term is defined in the Term Loan Intercreditor Agreement.
CITICORP USA, INC.
By: __________________________
Name:
Title:
▇▇▇▇▇▇ FINANCIAL, INC.
By: __________________________
Name:
Title:
NATIONSBANK, N.A.
By: __________________________
Name:
Title:
CITIBANK, N.A.
By: __________________________
Name:
Title:
CITIBANK CANADA
By: __________________________
Name:
Title:
-19-
ANNEX A
TO
FIRST AMENDMENT AND CONSENT
New Schedule 1.01.1 to Loan Agreement
Payment Accounts
[To be attached]
ANNEX B
TO
FIRST AMENDMENT AND CONSENT
New Schedule 1.01.7 to Loan Agreement
Permitted Receivables Transaction Documents
[To be inserted]
Applicable Definitions
"Early Amortization Event" means [to be inserted from the final Series
1996-1 Supplement].
"Net Receivables Balance" means [to be inserted from final Pooling and
Servicing Agreement].
"Required Net Receivables Balance" means [to be inserted from final Pooling
and Servicing Agreement].
"Trust Early Amortization Event" means [to be inserted from final Pooling
and Servicing Agreement].
[Other definitions used in the above definitions to be inserted from final
Permitted Receivables Transaction Documents]
ANNEX C
TO
FIRST AMENDMENT AND CONSENT
New Schedule 6.01-C to Loan Agreement
[To be attached]
ANNEX D
TO
FIRST AMENDMENT AND CONSENT
Form of Amendatory Agreement
[To be attached]
ANNEX E
TO
FIRST AMENDMENT AND CONSENT
Good Standing Jurisdictions
Company Good Standing Certificates
Connecticut
New York
▇▇▇▇▇▇▇▇▇▇ International Good Standing Certificates
Connecticut
New York
Pegasus Good Standing Certificates
Connecticut
Finsub1 Good Standing Certificates
Connecticut
Delaware
Finsub2 Good Standing Certificates
Connecticut
Delaware