CONSENT NUMBER 5 AND FIRST AMENDMENT
CONSENT NUMBER 5 AND FIRST AMENDMENT, dated as of November
11, 1996 (this "Amendment"), to the Credit Agreement, dated as of June 29,
1994 (the "Credit Agreement"), among Mafco Worldwide Corporation (the
"Company"), the financial institutions from time to time parties thereto (the
"Banks") and The Chase Manhattan Bank (as successor by merger to The Chase
Manhattan Bank, N.A.), as agent (in such capacity, the "Agent").
W I T N E S S E T H:
WHEREAS, the Company is a party to the Credit
Agreement;
WHEREAS, pursuant to the Stock and VSR Purchase
Agreement, dated as of October 23, 1996 (the "Purchase
Agreement"), among Mafco Consolidated Group Inc. ("MCG"),
Power Control Technologies, Inc. and PCT International
Holdings, Inc. ("PCTI"), MCG has agreed to sell all of
the issued and outstanding capital stock of Flavors
Holdings Inc. ("FHI") to PCTI (the "FHI Sale");
WHEREAS, promptly following such sale, (a) the capital stock
of Pneumo Abex Corporation ("Pneumo") shall be contributed to the Company (the
"Capital Contribution") and (b) Pneumo shall be merged with and into the
Company, with Pneumo being the surviving corporation of such merger (the
"Merger");
WHEREAS, in connection with the FHI Sale, the Capital
Contribution and the Pneumo Merger, the Company will enter into certain other
transactions, as more fully described herein (together with the FHI Sale, the
Capital Contribution and the Pneumo Merger, the "Transaction");
WHEREAS, in order to permit the consummation of the
Transaction, the Company has requested that the Agent and the Banks amend
certain provisions of the Credit Agreement, as more fully described herein;
WHEREAS, the Agent and the Banks are willing to consent to
such amendments only upon the terms and subject to the conditions set forth
herein;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants contained herein, the Company, the Banks and the Agent hereby
agree as follows:
1. Definitions. All terms defined in the Credit Agreement
shall have such defined meanings when used herein unless otherwise defined
herein.
2. Consent to Changes in Tax Allocation Arrangements. (a)
The Agent and the Banks hereby consent that the existing Tax Allocation
Agreement may be terminated and waive compliance with the provisions of
Section 8.17 of the Credit Agreement to the extent and only to the extent
necessary to permit such termination; provided that (i) the rights and
obligations of the Company and the other parties to the Tax Allocation
Agreement with respect to the matters covered by the Tax Allocation Agreement
shall be as set forth in Section 4.11 of the Purchase Agreement, (ii) the
Company and PCT shall enter into new tax allocation agreement substantially
similar to the existing Tax Allocation Agreement (together with the tax
allocation provisions of the Purchase Agreement, the "Substitute Agreement")
and (iii) PCT shall execute a new tax allocation subordination agreement
substantially similar to the existing Tax Allocation Subordination Agreement
(the "Substitute Subordination Agreement").
(b) From and after the effectiveness of this Amendment and
the Closing under the Purchase Agreement, the terms "Tax Allocation Agreement"
and "Tax Allocation Subordination Agreement" contained in the Credit Documents
shall mean the Substitute Agreement and the Substitute Allocation Agreement,
respectively. In addition, references in the Credit Documents to concepts in
the "Tax Allocation Agreement" shall be deemed to refer to the comparable
concepts in the Substitute Agreement.
3. Consent to Payment of Dividend. The Agent and the Banks
hereby consent to the making of a Dividend Payment by the Company to the
Parent Guarantor in an aggregate amount not to exceed $5,400,000 and waive the
provisions of Section 8.09(a) of the Credit Agreement to the extent and only
to the extent necessary to permit the making of such Dividend Payment;
provided that no Default or Event of Default shall have occurred and be
continuing immediately prior to and immediately after giving effect to the
making of such Dividend Payment.
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4. Consent to Merger. The Agent and the Banks hereby consent
to the consummation of the Merger and waive the provisions of Sections 8.05
and 8.13 of the Credit Agreement to the extent and only to the extent
necessary to permit the consummation of the Merger; provided that (a) no
Default or Event of Default shall have occurred and be continuing immediately
prior to and immediately after giving effect to consummation of the Merger,
(b) Pneumo (as the surviving corporation of the Merger) executes and delivers
to the Agent a written assumption of the obligations of the Company under the
Credit Agreement and other Basic Documents, which assumption shall be in form
and substance reasonably acceptable to the Agent, (c) the Parent Guarantor
shall deliver to the Agent the certificate evidencing the capital stock of
Pneumo into which the capital stock of the Company was converted in connection
with the Merger in exchange for the certificates representing the stock of the
Company and (d) immediately after giving effect to the Merger, the Agent shall
hold a first-priority, perfected security interest in substantially all assets
of Pneumo and its Subsidiaries (other than permitted Liens).
5. Amendment to Section 1.01. The definition of the term
"Total Debt" in Section 1.01 of the Credit Agreement is hereby amended by
deleting said definition in its entirety and by substituting therefor the
following:
'Total Debt' shall mean, as at any date, the sum, for any
Person, of all Indebtedness of such Person of the types described in
clauses (a), (b), (d) and (e) of the definition of the term
"Indebtedness" in this Section 1.01; provided, that Total Debt of the
Company shall not include Indebtedness under the Reimbursement
Agreement, dated as of February 5, 1996, among the Company, The Chase
Manhattan Bank (as successor by merger to The Chase Manhattan Bank,
N.A.) and Mafco Consolidated Group Inc., as Guarantor."
6. Agreement to Section 2.03. Section 2.03 of the Credit
Agreement hereby is amended by deleting the amount "$15,000,000" appearing in
the fourteenth line thereof, and substituting in lieu thereof the amount
"$18,000,000."
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7. Amendment to Section 8.09(d)(i). Section 8.09(d)(i) of
the Credit Agreement hereby is amended by deleting said Section 8.09(d)(i) in
its entirety and by substituting therefor the following:
(i) in addition to the Dividend made as permitted by
paragraph 3 of the Consent No. 5 and First Amendment to the Credit
Agreement, the Company may, so long as no Default shall have occurred
and be continuing or would result therefrom, make Dividend Payments
in an aggregate amount not to exceed, at any date, the amount of
Restricted Payments (as defined in the Subordinated Debt Indenture)
which would be permitted on such date under the Subordinated Debt
Indenture in accordance with the calculation described in Section
1009 thereof (as in effect on November 1, 1996 and as further
amended, supplemented or otherwise modified from time to time with
the written consent of the Majority Banks); provided that all
references contained in said Section 1009 to "July 1, 1992" or "the
date of this Indenture" shall be deemed to be references to October
1, 1996.
8. Consent to Existing Pneumo Arrangements. The Agent and
the Banks hereby consent to the Indebtedness and Liens under, and the
provisions contained in, (i) the Reimbursement Agreement, dated as of February
5, 1996, among Pneumo, The Chase Manhattan Bank (as successor by merger to The
Chase Manhattan Bank, N.A.), and Mafco Consolidated Group Inc., as Guarantor,
and (ii) the Letter of Credit Reimbursement and Cash Collateral Agreement,
dated as of April 15, 1996, between Pneumo and The Chase Manhattan Bank (as
successor by merger to The Chase Manhattan Bank, N.A.). The Agent and the
Banks hereby consent to the cash deposit by Pneumo of approximately $2,100,000
to secure its obligations for deductibles under workers' compensation
insurance policies.
9. Conditions to Effectiveness. This Amend- ment shall
become effective on and as of the date that the Agent shall have received
counterparts of this Amendment, duly executed by the Company and the
Majority Banks.
10. Representations and Warranties. The Company, as of the
date hereof and after giving effect to the consents and waivers contained
herein, hereby con-
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firms, reaffirms and restates the representations and warranties made by it in
Section 7 of the Credit Agreement and otherwise in the Credit Documents to
which it is a party; provided that each reference to the Credit Agreement
therein shall be deemed to be a reference to the Credit Agreement after giving
effect to this Amendment.
11. Reference to and Effect on the Credit Documents; Limited
Effect. On and after the date hereof and the satisfaction of the conditions
contained in Section 9 of this Amendment, each reference in the Credit
Agreement to "this Agreement", "hereunder", "hereof" or words of like import
referring to the Credit Agreement, and each reference in the other Credit
Documents to "the Credit Agreement", "thereunder", "thereof" or words of like
import referring to the Credit Agreement, shall mean and be a reference to the
Credit Agreement as modified hereby. From and after the date that this
Amendment has become effective and the Transactions have been consummated,
references in the Credit Agreement to the "Company" shall be deemed to be
references to Pneumo (as the surviving corporation in the Merger). 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 any Bank or the Agent under any of the Credit Documents, nor constitute a
waiver or amendment of any provisions of any Credit Documents. Except as
expressly modified herein, all of the provisions and covenants of the Credit
Agreement and the other Credit Documents are and shall continue to remain in
full force and effect in accordance with the terms thereof and are hereby in
all respects ratified and confirmed.
12. Counterparts. This Amendment may be executed by one or
more of the parties hereto in any number of separate counterparts (which may
include counterparts delivered by facsimile transmission) and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument. Any executed counterpart delivered by facsimile transmission shall
be effective as for all purposes hereof.
13. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
MAFCO WORLDWIDE CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
THE CHASE MANHATTAN BANK, N.A.,
as Agent and as a Bank
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
THE FIRST NATIONAL BANK OF BOS-
TON
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇ ▇▇▇▇▇ SENIOR FLOATING
RATE FUND, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Authorized Signatory
BANQUE FRANCAISE DU COMMERCE
EXTERIEUR
By:
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Name:
Title:
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GENERAL ELECTRIC CAPITAL CORPO-
RATION
By:
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Name:
Title:
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