1
EXHIBIT 10.03
$20,000,000 DISCRETIONARY CREDIT FACILITY
DISCRETIONARY CREDIT AGREEMENT
by and among
ARISTECH CHEMICAL CORPORATION
MITSUBISHI CORPORATION
and
THE CHASE MANHATTAN BANK, N.A.
and
PNC BANK, N.A.
Dated as of January 4, 1995
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TABLE OF CONTENTS
ARTICLE I
CERTAIN DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . -1-
1.01 Certain Definitions . . . . . . . . . . . . . . -1-
1.02 Construction . . . . . . . . . . . . . . . . . . -5-
1.03 Accounting Principles . . . . . . . . . . . . . -5-
ARTICLE II
DISCRETIONARY CREDIT FACILITY . . . . . . . . . . . . . . . . . . . -5-
2.01 Discretionary Credit . . . . . . . . . . . . . . -5-
2.02 Bid Loan Requests . . . . . . . . . . . . . . . -6-
2.03 Bidding for, Accepting and Making Bid Loans . . -6-
2.04 Bid Loan Notes . . . . . . . . . . . . . . . . -7-
2.05 Interest After Default . . . . . . . . . . . . -7-
ARTICLE III
PAYMENTS . . . . . . . . . . . . . . . . . . . . . . . . -7-
3.01 Payments . . . . . . . . . . . . . . . . . . . -7-
3.02 Interest Payment Dates . . . . . . . . . . . . -8-
3.03 Voluntary Prepayments . . . . . . . . . . . . . -8-
3.04 Additional Compensation in Certain
Circumstances . . . . . . . . . . . . . . . . . -8-
ARTICLE IV
REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . -9-
4.01 Borrower's Representations and Warranties . . . -9-
(a) Organization and Qualification . . . . . . -9-
(b) Power and Authority . . . . . . . . . . . -9-
(c) Validity and Binding Effect . . . . . . . -9-
(d) No Conflict . . . . . . . . . . . . . . . -9-
(e) Financial Statements . . . . . . . . . . . -10-
(f) Margin Stock . . . . . . . . . . . . . . . -10-
(g) Full Disclosure . . . . . . . . . . . . . -10-
(h) Consents and Approvals . . . . . . . . . . -10-
4.02 MC Representations and Warranties . . . . . . . -10-
(a) Organization and Qualification . . . . . . -10-
(b) Power and Authority . . . . . . . . . . . -10-
(c) Validity and Binding Effect . . . . . . . -10-
(d) No Conflict . . . . . . . . . . . . . . . -10-
(e) Financial Statements . . . . . . . . . . . -11-
ARTICLE V
CONDITIONS OF LENDING . . . . . . . . . . . . . . . . . . . . . . . -11-
5.01 Conditions to Each Bid Loan . . . . . . . . . . -11-
ARTICLE VI
COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . -12-
6.01 Affirmative Covenants . . . . . . . . . . . . . -12-
(a) Preservation of Existence, etc. . . . . . . -12-
(b) Keeping of Records and Books of Account . -13-
(c) Use of Proceeds . . . . . . . . . . . . . -13-
6.02 Negative Covenants . . . . . . . . . . . . . . . -13-
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TABLE OF CONTENTS
Page
(a) Liquidations, Mergers, Consolidations,
Sales . . . . . . . . . . . . . . . . . . . -13-
(b) Minimum Net Worth . . . . . . . . . . . . . -13-
6.03 Reporting Requirements . . . . . . . . . . . . -13-
(a) Quarterly Financial Statements . . . . . . -13-
(b) Annual Financial Statements . . . . . . . -14-
(c) Certificate of the Borrower . . . . . . . -14-
(d) Notice of Default . . . . . . . . . . . . -15-
(e) Other Reports and Information . . . . . . -15-
ARTICLE VII
DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . -15-
7.01 Events of Default . . . . . . . . . . . . . . . -15-
7.02 Consequences of Event of Default . . . . . . . -17-
ARTICLE VIII
THE BANKS . . . . . . . . . . . . . . . . . . . . . . . . -18-
8.01 Reliance by Banks . . . . . . . . . . . . . . . -18-
8.02 Banks in Their Individual Capacities . . . . . -18-
8.03 Equalization of Banks . . . . . . . . . . . . . -19-
ARTICLE IX
MISCELLANEOUS -19-
9.01 Modifications, Amendments or Waivers . . . . . -19-
9.02 No Implied Waivers; Cumulative Remedies:
Writing Required . . . . . . . . . . . . . . . -19-
9.03 Reimbursement and Indemnification of Banks by
the Borrower; Taxes . . . . . . . . . . . . . . -19-
9.04 Holidays . . . . . . . . . . . . . . . . . . . -20-
9.05 Notices . . . . . . . . . . . . . . . . . . . . -20-
9.06 Severability . . . . . . . . . . . . . . . . . -21-
9.07 Governing Law . . . . . . . . . . . . . . . . . -21-
9.08 Prior Understanding . . . . . . . . . . . . . . -21-
9.09 Duration; Survival . . . . . . . . . . . . . . -21-
9.10 Successors and Assigns . . . . . . . . . . . . -22-
9.11 Confidentiality . . . . . . . . . . . . . . . . -22-
9.12 Counterparts . . . . . . . . . . . . . . . . . -23-
9.13 Bank's Consent . . . . . . . . . . . . . . . . -23-
9.14 Exceptions . . . . . . . . . . . . . . . . . . -23-
9.15 Consent to Forum; Waiver of Jury Trial . . . . -23-
9.16 MC Guaranty . . . . . . . . . . . . . . . . . . -23-
(ii)
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TABLE OF CONTENTS
EXHIBITS Page
EXHIBIT 1.01(A) - Form of Bid Loan Note
EXHIBIT 2.03 - Form of Bid Loan Acceptance with
Certification
EXHIBIT 5.01(c)(1) - Form of Opinion of Borrower's Counsel
EXHIBIT 5.01(c)(2) - Form of Opinion of MC Counsel
EXHIBIT 6.03 - Form of Compliance Certificate
(iii)
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DISCRETIONARY CREDIT AGREEMENT
THIS DISCRETIONARY CREDIT AGREEMENT is dated as of January 4,
1995, and is made by and among ARISTECH CHEMICAL CORPORATION, a Delaware
corporation (the "Borrower"), MITSUBISHI CORPORATION, a Japanese corporation
("MC") and THE CHASE MANHATTAN BANK, N.A., and PNC BANK, N.A. (collectively
"the Banks" and individually a "Bank").
WITNESSETH:
WHEREAS, the Borrower desires to be able to request the Banks
to consider extending loans to the Borrower in an amount not to exceed an
aggregate of $20,000,000; and
WHEREAS, if either or both of the Banks in their sole
discretion in response to a specific request of Borrower bid to provide loans
to the Borrower and the Borrower accepts such bid, any such loans are made
subject to the terms and conditions hereinafter set forth.
NOW, THEREFORE, the parties hereto, in consideration of their
mutual covenants and agreements hereinafter set forth and intending to be
legally bound hereby, covenant and agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
1.01 Certain Definitions. In addition to words and terms defined
elsewhere in this Agreement, the following words and terms shall have the
following meanings, respectively, unless the context hereof clearly requires
otherwise:
Agreement shall mean this Discretionary Credit
Agreement as the same may be supplemented or amended from time to time
including all schedules and exhibits hereto.
Authorized Officer shall mean those persons
designated by written notice to the Banks from the Borrower, authorized to
execute notices, reports and other documents required hereunder. The Borrower
may amend such list of persons from time to time by giving written notice of
such amendment to the Banks.
Banks shall mean The Chase Manhattan Bank, N.A. and
PNC Bank, N.A., and their respective successors and assigns, each of which is
referred to herein as a Bank.
Base Rate shall mean the greater of (i) the interest
rate per annum announced from time to time by a Bank at its Principal Office as
its then prime rate, which rate may not be the lowest rate then being charged
commercial borrowers by the
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Banks, or (ii) the Federal Funds Effective Rate plus one-half of one percent
(1/2%) per annum.
Bid shall have the meaning assigned to such term in
Section 2.03(i).
Bid Loan Aggregate Limit shall have the meaning
assigned to such term in Section 2.02.
Bid Loan Borrowing Date shall mean, with respect to
any Bid Loan, the date for the making thereof which shall be a Business Day.
Bid Loan Notes shall mean collectively and Bid Loan
Note shall mean separately all of the Bid Loan Notes of the Borrower in the
form of Exhibit 1.01(A) evidencing the Bid Loans together with all amendments,
extensions, renewals, replacements, refinancings or refunds thereof in whole or
in part.
Bid Loan Period shall have the meaning assigned to
such term in Section 2.02.
Bid Loan Request shall have the meaning assigned to
such term in Section 2.02.
Bid Loans shall mean collectively and Bid Loan shall
mean separately all of the Bid Loans or any Bid Loan made by any of the Banks
to the Borrower pursuant to Sections 2.03.
Borrower shall mean Aristech Chemical Corporation, a
corporation organized and existing under the laws of the State of Delaware.
Business Day shall mean a day on which commercial
banks are open for business in Pittsburgh, Pennsylvania, and New York City, New
York.
Consolidated Net Worth shall mean as of any date of
determination total stockholders' equity of the Borrower and its Subsidiaries
as of such date determined and consolidated in accordance with GAAP.
Dollar, Dollars, U.S. Dollars and the symbol $ shall
mean lawful money of the United States of America.
Event of Default shall mean any of the Events of
Default described in Section 7.01 of this Agreement.
Expiration Date shall mean January 3, 1996.
Federal Funds Effective Rate shall mean the rate per
annum (based on a year of 360 days and actual days elapsed
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and rounded upward to the nearest 1/100 of 1%) announced by the Federal Reserve
Bank of New York (or any successor) on such day as being the weighted average
of the rates on overnight Federal funds transactions arranged by Federal funds
brokers on the previous trading day, as computed and announced by such Federal
Reserve Bank (or any successor) in substantially the same manner as such
Federal Reserve Bank computes and announces the weighted average it refers to
as the "Federal Funds Effective Rate" as of the date of this Agreement;
provided, if such Federal Reserve Bank (or its successor) does not announce
such rate on any day, the "Federal Funds Effective Rate" for such day shall be
the Federal Funds Effective Rate for the last day of which such rate was
announced.
GAAP shall mean generally accepted accounting
principles as are in effect from time to time, subject to the provisions of
Section 1.03 hereof, and applied on a consistent basis (except for changes in
application in which the Borrower's independent certified public accountants
concur) both as to classification of items and amounts.
Guaranty of any person shall mean any obligation of
such person guaranteeing or in effect guaranteeing any liability or obligation
of any other person in any manner, whether directly or indirectly, including,
without limiting the generality of the foregoing, any agreement to indemnify or
hold harmless any other person, any performance bond or other suretyship
arrangement and any other form of assurance against loss, except endorsement of
negotiable or other instruments for deposit or collection in the ordinary
course of business.
Indebtedness shall mean as to any person at any time,
any and all indebtedness, obligations or liabilities (whether matured or
unmatured, liquidated or unliquidated, direct or indirect, absolute or
contingent, or joint or several) of such person for or in respect of: (i)
borrowed money, (ii) amounts raised under or liabilities in respect of any note
purchase or acceptance credit facility, (iii) reimbursement obligations under
any letter of credit, currency swap agreement, interest rate swap, cap, collar
or floor agreement or other interest rate management device, (iv) any other
transaction (including without limitation forward sale or purchase agreements,
capitalized leases and conditional sales agreements) having the commercial
effect of a borrowing of money entered into by such person to finance its
operations or capital requirements (but not including trade payables and
accrued expenses incurred in the ordinary course of business which are not
represented by a promissory note or other evidence of indebtedness and which
are not more than thirty (30) days past due), or (v) any Guaranty of
Indebtedness for borrowed money.
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Law shall mean any law (including common law),
constitution, statute, treaty, regulation, rule, ordinance, opinion, release,
ruling, order, injunction, writ, decree or award of any Official Body.
Loan Documents shall mean this Agreement, the Bid
Loan Notes, and any other instruments, certificates or documents delivered or
contemplated to be delivered hereunder or thereunder or in connection herewith
or therewith, as the same may be supplemented or amended from time to time in
accordance herewith or therewith, and Loan Document shall mean any of the Loan
Documents.
Loan Party shall mean the Borrower.
Loans shall mean collectively and Loan shall mean
separately all Bid Loans.
Material Adverse Change shall mean any set of
circumstances or events which (a) has or could reasonably be expected to have
any material adverse effect whatsoever upon the validity or enforceability of
this Agreement or any other Loan Documents, (b) is or could reasonably be
expected to be material and adverse to the business, properties, assets,
financial condition, results of operations or prospects of MC or of Borrower
and Borrower's Subsidiaries taken as a whole, (c) impairs materially or could
reasonably be expected to impair materially the ability of MC or of Borrower
and Borrower's Subsidiaries taken as a whole to duly and punctually pay or
perform its Indebtedness, or (d) impairs materially or could reasonably be
expected to impair materially the ability of the Banks or any of the Banks, to
the extent permitted, to enforce their legal remedies pursuant to this
Agreement or any other Loan Document.
Notes shall mean the Bid Loan Notes.
Official Body shall mean any national, federal,
state, local or other government or political subdivision or any agency,
authority, bureau, central bank, commission, department or instrumentality of
either, or any court, tribunal, grand jury or arbitrator, in each case whether
foreign or domestic.
Person shall mean any individual, corporation,
partnership, association, joint-stock company, trust, unincorporated
organization, joint venture, government or political subdivision or agency
thereof, or any other entity.
Potential Default shall mean any event or condition
which with notice, passage of time or a determination by the Banks, or any
combination of the foregoing, would constitute an Event of Default.
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Principal Office shall mean the main banking office
of a Bank.
Regulation U shall mean Regulation U, T, G or X as
promulgated by the Board of Governors of the Federal Reserve System, as amended
from time to time.
Subsidiary of any person at any time shall mean (i)
any corporation or trust of which 50% or more (by number of shares or number of
votes) of the outstanding capital stock or shares of beneficial interest
normally entitled to vote for the election of one or more directors or trustees
(regardless of any contingency which does or may suspend or dilute the voting
rights) is at such time owned directly or indirectly by such person or one or
more of such person's Subsidiaries, or any partnership of which such person is
a general partner or of which 50% or more of the partnership interests is at
the time directly or indirectly owned by such person or one or more of such
person's Subsidiaries, and (ii) any corporation, trust, partnership or other
entity which is controlled or capable of being controlled by such person or one
or more of such person's Subsidiaries.
1.02 Construction. Unless the context of this Agreement
otherwise clearly requires, references to the plural include the singular, the
singular the plural and the part the whole, "or" has the inclusive meaning
represented by the phrase "and/or," and "including" has the meaning represented
by the phrase "including without limitation." The words "hereof," "herein,"
"hereunder" and similar terms in this Agreement refer to this Agreement as a
whole and not to any particular provision of this Agreement. The section and
other headings contained in this Agreement and the Table of Contents preceding
this Agreement are for reference purposes only and shall not control or affect
the construction of this Agreement or the interpretation thereof in any
respect. Section, subsection, schedule and exhibit references are to this
Agreement unless otherwise specified.
1.03 Accounting Principles. Except as otherwise provided
in this Agreement, all computations and determinations as to accounting or
financial matters and all financial statements to be delivered pursuant to this
Agreement shall be made and prepared in accordance with GAAP (including
principles of consolidation where appropriate), and all accounting or financial
terms shall have the meanings ascribed to such terms by GAAP.
ARTICLE II
DISCRETIONARY CREDIT FACILITY
2.01 Discretionary Credit. The Borrower acknowledges that
this is not a committed line of credit and that neither Bank
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has any obligation to make any loan to Borrower or if a Bid Loan is made, to
extend or renew any such Bid Loan.
2.02 Bid Loan Requests. Except as otherwise provided herein,
the Borrower may from time to time prior to the Expiration Date request that
the Banks bid to make loans (collectively "Bid Loans" and singularly a "Bid
Loan") by telephonic inquiry to the Banks not later than 11:00 A.M. Pittsburgh
time on the proposed Bid Loan Borrowing Date (each, a "Bid Loan Request"), it
being understood that the Banks may rely on the authority of any individual
making such a telephonic request without the necessity of receipt of any
written confirmation. Each Bid Loan Request shall specify the proposed Bid
Loan Borrowing Date, the term of the proposed Bid Loan (the "Bid Loan Period")
which may be no less than 1 day and no longer than 90 days and the maximum
principal amount (the "Requested Amount") of such Bid Loan, which shall be not
less than $50,000 and shall be an integral multiple of $50,000. After giving
effect to such Bid Loan and any other Bid Loan made on or before the Bid Loan
Borrowing Date, the aggregate amount of the Bid loans of all Banks outstanding
shall not exceed $20,000,000 (the "Bid Loan Aggregate Limit").
2.03 Bidding for, Accepting and Making Bid Loans.
(i) Bidding. Each Bank in its sole and
unfettered discretion in response to a Bid Loan Request may either decline to
bid or determine to submit a bid. If a Bank submits a bid (the "Bid") to the
Borrower, the Bank shall bid no later than 12:00 p.m. on the proposed Bid Loan
Borrowing Date, the Bid shall specify: (A) the principal amount of proposed
Bid Loans offered by such Bank (the "Offered Amount") which (i) may be less
than, but shall not exceed, the Requested Amount and (ii) shall be at least
$50,000 and shall be an integral multiple of $50,000, and (B) the interest rate
applicable to such proposed Bid Loan which rate shall be affixed throughout the
Loan Period, shall be based on a year of 360 days.
(ii) Accepting Bids. The Borrower shall irrevocably
accept or reject Bids by notifying each Bank which submitted a Bid of such
acceptance or rejection by telephone on or before 12:15 P.M. Pittsburgh time on
the Bid Loan Borrowing Date (the Borrower's acceptance of a Bid shall be
immediately confirmed by Borrower in writing by letter, facsimile or telex
substantially in the form of Exhibit 2.03 hereto delivered to each Bank whose
Bid was accepted, and the Borrower shall immediately notify by letter,
facsimile or telex each Bank of the aggregate outstanding Bid Loans after
giving effect to the accepted Bid or Bids). If the borrower elects to accept
any Bids, its acceptance must meet the following conditions: (1) the total
amount which Borrower accepts from all Banks must exceed $50,000 and be in
integral multiples of $50,000 and may not
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exceed the Requested Amount; (2) the Borrower must accept Bids based solely on
the cost to the Borrower of each Bid (interest rate together with any
transaction costs which would be incurred) in ascending order of the cost of
such Bids; (3) the Borrower may not borrow Bid Loans from any Bank on the Bid
Loan Borrowing Date in an amount exceeding such Bank's Offered Amount; and (4)
if each Bank submits a Bid at the same interest rate, the Borrower in its
discretion may accept either Bid or partially accept both Bids.
(iii) Funding Bid Loans. Each Bank whose Bid or
portion thereof is accepted shall make such Bid Loan by making funds available
to the Borrower on or before 2:00 P.M. on the Bid Loan Borrowing Date.
(iv) Several Obligations. The Obligations of the
Banks to make Bid Loans after their Bids have been accepted are several. No
Bank shall be responsible for the failure of any other Bank to make any Bid
Loan following an accepted Bid.
2.04 Bid Loan Notes. The obligation of the Borrower to
repay the aggregate unpaid principal amount of the Bid Loans made to it by each
Bank, together with interest thereon, shall be evidenced by a Bid Loan Note
dated as of the Closing Date payable to the order of such Bank in a face amount
equal to $20,000,000.
2.05 Interest After Default. To the extent permitted by
Law, upon the occurrence and during the continuation of an Event of Default,
any principal, interest, fee or other amount payable hereunder to a Bank shall
bear interest for each day thereafter until paid in full (before and after
judgment) at a rate per annum which shall be equal to two hundred (200) basis
points (2% per annum) above the Base Rate of such Bank. The Borrower
acknowledges that such increased interest rate reflects, among other things,
the fact that such Loans or other amounts have become a substantially greater
risk given their default status and that the Banks are entitled to additional
compensation for such risk.
ARTICLE III
PAYMENTS
3.01 Payments. All payments and prepayments to be made in
respect of principal, interest, or other amounts due from the Borrower
hereunder shall be payable prior to 11:00 A.M. (Pittsburgh time) on the date
when due without presentment, demand, protest or notice of any kind, all of
which are hereby expressly waived by the Borrower, and without setoff,
counterclaim or other deduction or withholding of any nature whether for taxes
or otherwise, and an action therefor shall immediately accrue. Such payments
shall be made to each Bank at its Principal Office in U.S. Dollars and in
immediately available
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funds. Each Bank's statement of account, ledger or other relevant record
shall, in the absence of manifest error, be conclusive as the statement of the
amount of principal of and interest on the Bid Loans and other amounts owing
under this Agreement and shall be deemed an "account stated."
3.02 Interest Payment Dates. Interest on each Bid Loan shall
be due and payable in arrears on the first Business Day of each month and on
the Expiration Date or upon acceleration of the Bid Loan Notes.
3.03 Voluntary Prepayments.
(a) The Borrower shall have the right at its
option from time to time to prepay the Bid Loans in whole or part without
premium or penalty (except as provided in subsection (b) below or in Section
3.04 hereof):
(b) Whenever the Borrower desires to prepay any
part of the Loans, it shall provide a prepayment notice to each Bank at least
one (1) Business Day prior to the date of prepayment of Loans setting forth the
date, which shall be a Business Day, on which the proposed prepayment is to be
made and the amount of the prepayment.
(c) All prepayment notices shall be irrevocable.
The principal amount of the Loans for which a prepayment notice is given,
together with interest on such principal amount shall be due and payable on the
date specified in such prepayment notice as the date on which the proposed
prepayment is to be made.
3.04 Additional Compensation in Certain Circumstances. The
Borrower shall indemnify each Bank against all liabilities, losses or expenses
(including loss of margin, any loss or expense incurred in liquidating or
employing deposits from third parties and any loss or expense incurred in
connection with funds acquired by a Bank to fund or maintain Bid Loans which
such Bank sustains or incurs as a consequence of any
(i) payment or prepayment of any Bid Loan on a day
other than the last day of the corresponding Bid Loan Period (whether or not
such payment or prepayment is mandatory, voluntary or automatic and whether or
not such payment or prepayment is then due),
(ii) attempt by the Borrower to revoke (expressly,
by later inconsistent notices or otherwise) in whole or part any notice
relating to Bid Loan Requests under Section 2.02 or prepayments under Section
3.03, or
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(iii) default by the Borrower in the performance or
observance of any covenant or condition contained in this Agreement or any
other Loan Document, including without limitation any failure of the Borrower
to pay when due (by acceleration or otherwise) any principal, interest, or any
other amount due hereunder.
If any Bank sustains or incurs any such loss or expense it
shall from time to time notify the Borrower of the amount determined in good
faith by such Bank (which determination shall be conclusive absent manifest
error and may include such assumptions, allocations of costs and expenses and
averaging or attribution methods as such Bank shall deem reasonable) to be
necessary to indemnify such Bank for such loss or expense. Such notice shall
set forth in reasonable detail the basis for such determination. Such amount
shall be due and payable by the Borrower to such Bank ten (10) Business Days
after such notice is given.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.01 Borrower's Representations and Warranties. The Borrower
represents and warrants to the Banks and each of the Banks as follows:
(a) Organization and Qualification. The Borrower and
each Subsidiary is a corporation, duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation, has the lawful
power to own or lease its properties and to engage in the business it presently
conducts or proposes to conduct and is duly licensed or qualified and in good
standing in each jurisdiction where the property owned or leased by it or the
nature of the business transacted by it or both makes such licensing or
qualification necessary, except for licensing or qualifications in
jurisdictions in which the borrower or any Subsidiary does not have significant
operations, assets, businesses or properties.
(b) Power and Authority. The Borrower has full power
to enter into, execute, deliver and carry out this Agreement and the other Loan
Documents to which it is a party, to incur the Indebtedness contemplated by the
Loan Documents and to perform its obligations under the Loan Documents to which
it is a party and all such actions have been duly authorized by all necessary
proceedings on its part.
(c) Validity and Binding Effect. This Agreement has
been and each other Loan Document, when duly executed and delivered by the
Borrower, will have been duly and validly executed and delivered by the
Borrower. This Agreement and the other Loan Documents when delivered by the
Borrower pursuant to the provisions hereof will constitute, legal, valid and
binding obligations of the Borrower, enforceable against the Borrower in
accordance with their respective terms, except to the extent that
enforceability of any of the foregoing Loan Documents may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforceability of creditors' rights generally or limiting the
right of specific performance.
(d) No Conflict. Neither the execution and delivery
of this Agreement or the other Loan Documents by the Borrower nor the
consummation of the transactions herein or therein contemplated or compliance
with the terms and provisions hereof or thereof by them will conflict with,
constitute a default under or result in any breach of (i) the terms and
conditions of the certificate of incorporation, by-laws or other organizational
documents of the Borrower or (ii) or any Law or of any material agreement or
instrument or order, writ, judgment, injunction or decree to which the
Borrower is a party or by which it is bound or to which it is subject, or
result in the creation or enforcement of any Lien, charge or encumbrance
whatsoever upon any property (now or hereafter acquired) of the Borrower.
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(e) Financial Statements.
(A) Historical Statements. The Borrower has
delivered to the Banks copies of its audited consolidated year- end financial
statements for and as of the end of the fiscal year ended December 31, 1993
(the "Annual Statements"). In addition, the Borrower has delivered to the
Banks copies of its unaudited consolidated interim financial statements for the
fiscal year to date and as of the end of the fiscal quarter ended September 30,
1994 (the "Interim Statements") (the Annual and Interim Statements being
collectively referred to as the "Historical Statements"). The Historical
Statements were compiled from the books and records maintained by the
Borrower's management, are correct and complete and fairly represent the
consolidated financial condition of the Borrower and its Subsidiaries as of
their dates and the results of operations for the fiscal periods then ended and
have been prepared in accordance with GAAP consistently applied, subject (in
the case of the Interim Statements) to normal year-end audit adjustments.
(B) Accuracy of Financial Statements.
Neither the Borrower nor any Subsidiary has any material liabilities,
contingent or otherwise, or forward or long-term commitments that are not
disclosed in the Annual Statements or in the notes thereto, and except as
disclosed therein there are no unrealized or anticipated losses from any
commitments of the Borrower or any Subsidiary which may cause a Material
Adverse Change. Since December 31, 1993, no Material Adverse Change has
occurred.
(f) Margin Stock. No part of the proceeds of any
Loan has been or will be used, immediately, incidentally or ultimately, to
purchase or carry any margin stock or to extend credit to others for the
purpose of purchasing or carrying any margin stock or to refund Indebtedness
originally incurred for such purpose, or for any purpose which entails a
violation of or which is inconsistent with the provisions of the regulations of
the Board of Governors of the Federal Reserve System. Neither the Borrower nor
any Subsidiary holds or intends to hold margin stock in such amounts that more
than 25% of the reasonable value of the assets of the Borrower or any
Subsidiary are or will be represented by margin stock.
(g) Full Disclosure. Neither this Agreement nor
any other Loan Document, nor any certificate, statement, agreement or other
documents furnished to the Banks or any Bank in connection herewith or
therewith, contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements contained herein and
therein, in light of the circumstances under which they were made, not
misleading.
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(h) Consents and Approvals. No consent,
approval, exemption, order or authorization of, or a registration or filing
with any Official Body or any other person is required by any Law or any
agreement in connection with the execution, delivery and carrying out of this
Agreement and the other Loan Documents by the Borrower.
4.02 MC Representations and Warranties. MC represents and
warrants to the Banks and each of the Banks as follows:
(a) Organization and Qualification. MC is a
corporation, duly organized, validly existing and in good standing under the
laws of Japan.
(b) Power and Authority. MC has full power to
enter into, execute, deliver and carry out this Agreement and to perform its
obligations under this Agreement and all such actions have been duly authorized
by all necessary proceedings on its part.
(c) Validity and Binding Effect. This Agreement
has been duly executed and delivered by MC. This Agreement constitutes legal,
valid and binding obligations of MC enforceable against MC in accordance with
its respective terms, except to the extent that enforceability may be limited
by bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforceability of creditors' rights generally or limiting the
right of specific performance.
(d) No Conflict. Neither the execution and
delivery of this Agreement nor the consummation of the transactions herein or
therein contemplated or compliance with the terms and provisions hereof or
thereof by them will conflict with, constitute a default under or result in any
breach of (i) the terms and conditions of the certificate of incorporation,
by-laws or other organizational documents of MC or (ii) of any Law to which MC
is subject.
(e) Financial Statements.
(A) Historical Statements. MC has delivered
to the Bank copies of its audited consolidated year-end financial statements
for and as of the end of its fiscal year ended March 31, 1994 "the "MC
Statements"). The MC Statements were compiled from the books and records
maintained by the MC's management, are correct and complete and fairly
represent the consolidated financial condition of MC and its Subsidiaries as of
their date and the results of operations for the fiscal periods then ended and
have been prepared in accordance with accounting principles applicable to
corporations doing business in Japan consistently applied, subject to normal
year-end audit adjustments.
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(B) Accuracy of Financial Statements.
Neither MC nor any Subsidiary of MC has any material liabilities, contingent or
otherwise, or forward or long-term commitments that are not disclosed in the MC
Statements or in the notes thereto, and except as disclosed therein there are
no unrealized or anticipated losses from any commitments of MC or any
subsidiary of MC which may cause a Material Adverse Change. Since March 31,
1994, no Material Adverse Change has occurred.
ARTICLE V
CONDITIONS OF LENDING
5.01 Conditions to Each Bid Loan. The obligation of each
Bank which has made a Bid that has been accepted by the Borrower to make the
related Bid Loan hereunder is subject to the performance by the Borrower of its
obligations to be performed hereunder at or prior to the making of any such Bid
Loan and to the satisfaction of the following further conditions:
(a) The representations and warranties of the
Borrower and MC contained in Article IV hereof shall be true and accurate on
and as of the date of such Bid Loan with the same effect as though such
representations and warranties had been made on and as of such date (except
representations and warranties which relate solely to an earlier date or time,
which representations and warranties shall be true and correct on and as of the
specific dates or times referred to therein), and the Borrower shall have
performed and complied with all covenants and conditions hereof; no Event of
Default or Potential Default under this Agreement shall have occurred and be
continuing or shall exist; and the Bid Loan Request shall be accompanied by a
certificate of the Borrower, dated the Closing Date and signed by the Chief
Executive Officer, President or Chief Financial Officer of the Borrower, to
each such effect;
(b) There shall have been delivered to the Banks
for the benefit of each Bank a certificate dated the date hereof and signed by
the Secretary or an Assistant Secretary of the Borrower, certifying as
appropriate as to:
(i) all action taken by the Borrower in
connection with this Agreement and the other Loan Documents;
(ii) the names of the officer or officers
authorized to sign this Agreement and the other Loan Documents and the true
signatures of such officer or officers and, in the case of the Borrower,
specifying the Authorized Officers permitted to act on behalf of the Borrower
for purposes of this Agreement and the true signatures of such officers, on
which the Banks and each Bank may conclusively rely; and
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(iii) the copies of its organizational
documents, including its certificate of incorporation and bylaws previously
delivered to the banks remain in effect on the date hereof.
(c) There shall be delivered to the Banks for the
benefit of each Bank a written opinion of the General Counsel for the Borrower
in the form of Exhibit 5.01(c)(1) hereto and Mr. Mashade Ide, counsel for MC in
the form of Exhibit 5.01(c)(2), each dated the date hereof.
(d) The Borrower shall have paid or cause to be
paid to the Banks for itself and for the account of the Banks to the extent not
previously paid all costs and expenses for which the Banks are entitled to be
reimbursed.
(e) The making of such Bid Loan when aggregated
with all other outstanding Bid Loans shall not exceed the Bid Loan Aggregate
Limit.
ARTICLE VI
COVENANTS
6.01 Affirmative Covenants. The Borrower covenants and
agrees that until payment in full of the Bid Loans and interest thereon,
satisfaction of all of the Borrower's other obligations hereunder and
termination of this Agreement, the Borrower shall comply at all times with the
following affirmative covenants:
(a) Preservation of Existence, etc. The Borrower
and MC shall each maintain its corporate existence and its license or
qualification and good standing in each jurisdiction in which its ownership or
lease of property or the nature of its business makes such license or
qualification necessary.
(b) Keeping of Records and Books of Account. The
Borrower shall, and shall cause each Subsidiary to, maintain and keep proper
books of record and account which enable the Borrower and its Subsidiaries to
issue financial statements in accordance with GAAP and as otherwise required by
applicable Laws of any Official Body having jurisdiction over the Borrower or
any Subsidiary, and in which full, true and correct entries shall be made in
all material respects of all its dealings and business and financial affairs.
(c) Use of Proceeds. The Borrower will use the
proceeds of the Bid Loans only for lawful purposes and such uses shall not
contravene any applicable Law or any other provision hereof.
6.02 Negative Covenants. The Borrower covenants and
agrees that until payment in full of the Bid Loans and interest
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thereon, satisfaction of all of the Borrower's other obligations hereunder and
termination of this Agreement, the Borrower shall comply with the following
negative covenants:
(a) Liquidations, Mergers, Consolidations, Sales.
The Borrower shall not dissolve, liquidate or wind-up its affairs. The
Borrower shall not become a party to any merger or consolidation unless it has
delivered at least 91 days prior notice thereof to the Banks.
(b) Minimum Net Worth. The Borrower shall not
permit its Consolidated Net Worth to be less than $1.00.
6.03 Reporting Requirements. The Borrower covenants and
agrees that until payment in full of the Bid Loans and interest thereon,
satisfaction of all of the Borrower's other obligations hereunder and
termination of this Agreement, the Borrower will furnish to a Bank upon request
therefor of such Bank:
(a) Quarterly Financial Statements. As soon as
available and in any event within forty-five (45) calendar days after the end
of each fiscal quarter in each fiscal year of Borrower, financial statements of
the Borrower, consisting of a balance sheet as of the end of such fiscal
quarter and related statements of income, stockholders' equity and cash flows
for the fiscal quarter then ended and the fiscal year through that date, all in
reasonable detail and certified (subject to normal year-end audit adjustments)
by the Chief Executive Officer, President or Chief Financial Official of the
Borrower, as having been prepared in accordance with GAAP, consistently
applied, and setting forth in comparative form the respective financial
statements for the corresponding date and period in the previous fiscal year.
(b) Annual Financial Statements. As soon as
available and in any event within ninety (90) days after the end of each fiscal
year of the Borrower, annual financial statements of the Borrower described
below and as soon as available and in any event within 150 days after the end
of each fiscal year of MC the annual financial statements of MC described
below. The annual financial statements of Borrower and MC shall consist of a
balance sheet as of the end of such fiscal year, and related statements of
income, stockholders' equity and cash flows for the fiscal year then ended, all
in reasonable detail and setting forth in comparative form the financial
statements as of the end of and for the preceding fiscal year, and certified by
independent certified public accountants of nationally recognized standing in
the case of Borrower and internationally recognized standing in the case of MC,
in each case satisfactory to the Banks. The certificate or report of
accountants shall be free of qualifications (other than any consistency
qualification that may
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result from a change in the method used to prepare the financial statements as
to which such accountants concur) and shall not indicate the occurrence or
existence of any event, condition or contingency which would materially impair
the prospect of payment or performance of any covenant, agreement or duty of
the Borrower or MC under any of the Loan Documents. The annual financial
statements of Borrower shall be accompanied by a letter of Borrower's
accountants substantially to the effect that, based upon their ordinary and
customary examination of the affairs of the Borrower, as applicable, performed
in connection with the preparation of such consolidated financial statements,
and in accordance with generally accepted auditing standards, they are not
aware of the existence of any condition or event which constitutes an Event of
Default or Potential Default or, if they are aware of such condition or event,
stating the nature thereof and confirming the Borrower's calculations with
respect to the certificate to be delivered pursuant to Section 6.03(d) hereof
with respect to such financial statements.
(c) Certificate of the Borrower. Concurrently with
any financial statements of the Borrower furnished to the Banks pursuant to
Sections 6.03(a) and 6.03(b) hereof, a certificate of the Borrower signed by
the Chief Executive Officer, President or Chief Financial Officer of the
Borrower, in the form of Exhibit 6.03 hereto, to the effect that (i) the
representations and warranties of the Borrower contained in Article IV hereof
are true on and as of the date of such certificate with the same effect as
though such representations and warranties had been made on and as of such date
(except representations and warranties which expressly relate solely to an
earlier date or time) and the Borrower has performed and complied with all
covenants and conditions hereof, (ii) no Event of Default or Potential Default
exists and is continuing on the date of such certificate and (iii) containing
calculations in sufficient detail to demonstrate compliance as of the date of
the financial statements with Section 6.02(b) hereof.
(d) Notice of Default. Promptly after any officer
of the Borrower has learned of the occurrence of an Event of Default or
Potential Default, a certificate signed by the Chief Executive Officer,
President or Chief Financial Officer of the Borrower setting forth the details
of such Event of Default or Potential Default and the action which the Borrower
proposes to take with respect thereto.
(e) Other Reports and Information. Within 10
Business Days after the entry of any final judgment or orders for the payment
of money in excess of $5,000,000 in the aggregate against the Borrower by a
court having jurisdiction in the premises which judgment is not discharged,
vacated, bonded or stayed pending appeal within a period of thirty (30) days
from the date of entry, notice of the amount, court and parties to
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such proceeding shall be given by the Borrower to the Banks. Promptly upon
their becoming available to the Borrower such other reports and information as
the Banks may from time to time reasonably request.
ARTICLE VII
DEFAULT
7.01 Events of Default. An Event of Default shall mean the
occurrence or existence of any one or more of the following events or
conditions (whatever the reason therefor and whether voluntary, involuntary or
effected by operation of Law):
(a) The Borrower shall fail to pay any principal of
any Bid Loan or shall fail to pay any interest on any Bid Loan or any other
amount owing hereunder or under the other Loan Documents after such principal,
interest or other amount becomes due in accordance with the terms hereof or
thereof;
(b) Any representation or warranty made at any time
by the Borrower herein or by the Borrower in any other Loan Document, or in any
certificate, other instrument or statement furnished pursuant to the provisions
hereof or thereof, shall prove to have been false or misleading in any material
respect as of the time it was made or furnished;
(c) The Borrower shall default in the observance or
performance of any covenant contained in Section 6.01 or Section 6.02 hereof;
(d) A default or event of default shall occur at any
time under the terms of any other agreement involving borrowed money or the
extension of credit or any other Indebtedness under which the Borrower or any
Subsidiary may be obligated as borrower or guarantor in excess of $10,000,000
in the aggregate, or under which MC is obligated as borrower or with respect to
which MC defaults on its obligations as a guarantor in either instance in
excess of $100,000,000 in the aggregate, and such breach, default or event of
default consists of the failure to pay (beyond any period of grace permitted
with respect thereto, whether waived or not) any indebtedness when due (whether
at stated maturity, by acceleration or otherwise) or if such breach or default
permits or causes the acceleration of any indebtedness (whether or not such
right shall have been waived) or the termination of any commitment to lend;
(e) Any of the Loan Documents shall cease to be
legal, valid and binding agreements enforceable against the party executing the
same or such party's successors and assigns (as permitted under the Loan
Documents) in accordance with the respective terms thereof or shall in any way
be terminated (except in accordance with its terms) or become or be declared
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ineffective or inoperative or shall in any way be challenged or contested or
cease to give or provide the respective Liens, security interests, rights,
titles, interests, remedies, powers or privileges intended to be created
thereby;
(f) The Borrower or MC ceases to be solvent or
admits in writing its inability to pay its debts as they mature;
(g) A proceeding shall have been instituted in a
court having jurisdiction in the premises seeking a decree or order for relief
in respect of the Borrower or MC in an involuntary case under any applicable
bankruptcy, insolvency, reorganization or other similar law now or hereafter in
effect, or a receiver, liquidator, assignee, custodian, trustee, sequestrator,
conservator (or similar official) of the Borrower or MC for any substantial
part of its property, or for the winding-up or liquidation of its affairs, and
such proceeding shall remain undismissed or unstayed and in effect for a period
of thirty (30) consecutive days or such court shall enter a decree or order
granting any of the relief sought in such proceeding; or
(h) The Borrower or MC shall commence a voluntary
case under any applicable bankruptcy, insolvency, reorganization or other
similar law now or hereafter in effect, shall consent to the entry of an order
for relief in an involuntary case under any such law, or shall consent to the
appointment or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator, conservator (or other similar official) of
itself or for any substantial part of its property or shall make a general
assignment for the benefit of creditors, or shall fail generally to pay its
debts as they become due, or shall take any action in furtherance of any of the
foregoing.
7.02 Consequences of Event of Default.
(a) If an Event of Default specified under
subsections (a) through (f) of Section 7.01 hereof shall occur and be
continuing, the Banks shall be under no further obligation to make a Bid Loan
for any accepted Bids hereunder and each Bank (i) by written notice to the
Borrower, declare the unpaid principal amount of its Bid Loan Note then
outstanding and all interest accrued thereon, any unpaid fees and all other
Indebtedness of the Borrower to such Bank hereunder and thereunder to be
forthwith due and payable, and the same shall thereupon become and be
immediately due and payable to such Bank without presentment, demand, protest
or any other notice of any kind, all of which are hereby expressly waived; and
(b) If an Event of Default specified under
subsections (g) or (h) of Section 7.01 hereof shall occur, the Banks shall be
under no further obligations to make a Bid Loan
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for any accepted Bids hereunder and the unpaid principal amount of the Bid Loan
Notes then outstanding and all interest accrued thereon, any unpaid fees and
all other Indebtedness of the Borrower to the Banks hereunder and thereunder
shall be immediately due and payable, without presentment, demand, protest or
notice of any kind, all of which are hereby expressly waived; and
(c) If an Event of Default shall occur and be
continuing, any Bank to whom any obligation is owed by the Borrower hereunder
or under any other Loan Document and any branch, subsidiary or affiliate of
such Bank or participant anywhere in the world shall have the right, in
addition to all other rights and remedies available to it, without notice to
the Borrower, to set-off against and apply to the then unpaid balance of all
the Bid Loans and all other obligations of the Borrower hereunder or under any
other Loan Document any debt owing to, and any other funds held in any manner
for the account of, the Borrower by such Bank or by such branch, subsidiary or
affiliate, including, without limitation, all funds in all deposit accounts
(whether time or demand, general or special, provisionally credited or finally
credited, or otherwise) now or hereafter maintained by the Borrower for its own
account (but not including funds held in custodian or trust accounts) with such
Bank or participant or such branch, subsidiary or affiliate. Such right shall
exist whether or not any Bank or the Banks shall have made any demand under
this Agreement or any other Loan Document, whether or not such debt owing to or
funds held for the account of the Borrower is or are matured or unmatured and
regardless of the existence or adequacy of any collateral, guaranty or any
other security, right or remedy available to any Bank or the Banks; and
(d) If an Event of Default shall occur and be
continuing, and whether or not the Banks shall have accelerated the maturity of
Bid Loans of the Borrower pursuant to any of the foregoing provisions of this
Section 7.02, any Bank, if owed any amount with respect to the Notes, may
proceed to protect and enforce its rights by suit in equity, action at law
and/or other appropriate proceeding, whether for the specific performance of
any covenant or agreement contained in this Agreement or the Bid Notes,
including as permitted by applicable Law the obtaining of the ex parte
appointment of a receiver, and, if such amount shall have become due, by
declaration or otherwise, proceed to enforce the payment thereof or any other
legal or equitable right of the Banks or such Bank; and
(e) From and after the date on which a Bank has
taken any action pursuant to this Section 7.02 and until all obligations of the
Borrower have been paid in full, any and all proceeds received by a Bank from
the exercise of any remedy by a Bank, shall be applied as follows:
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(i) first, to reimburse the Banks for
out-of-pocket costs, expenses and disbursements, including without limitation
reasonable attorneys' fees and legal expenses, incurred by the Banks in
connection with collection of any obligations of the Borrower under any of the
Loan Documents;
(ii) second, to the repayment of all
Indebtedness then due and unpaid of the Borrower to the Banks incurred under
this Agreement or any of the Loan Documents, whether of principal, interest,
fees, expenses or otherwise, in such manner as the Banks may determine in its
discretion; and
(iii) the balance, if any, as required by
Law.
ARTICLE VIII
THE BANKS
8.01 Reliance by Banks. A Bank shall be entitled to rely
upon any writing, telegram, telex or teletype message, resolution, notice,
consent, certificate, letter, cablegram, statement, order or other document or
conversation by telephone or otherwise believed by it to be genuine and correct
and to have been signed, sent or made by the proper person or persons of the
Borrower.
8.02 Banks in Their Individual Capacities. Each of the Banks
and their respective affiliates may, without liability to account, except as
prohibited herein, make loans to, accept deposits from, discount drafts for,
act as trustee under indentures of, and generally engage in any kind of banking
or trust business with, the Borrower and its affiliates, as though such Bank
were not a Bank hereunder.
8.03 Equalization of Banks. The Banks agree among themselves
that, with respect to all amounts received by any Bank for application on any
obligation hereunder or under any Bid Loan Note or under any such
participation, whether received by voluntary payment, by realization upon
security, by the exercise of the right of set-off or banker's lien, by
counterclaim or by any other non-pro rata source or pursuant to the guaranty
set forth in Section 9.16 hereof, equitable adjustment will be made so that, in
effect, all such excess amounts will be shared ratably among the Banks and such
holders in proportion to their interests in payments under the Bid Loan Notes,
except as otherwise provided in Section 3.04(a) hereof.
ARTICLE IX
MISCELLANEOUS
9.01 Modifications, Amendments or Waivers. With the written
consent of the Banks, the Borrower and MC may from time
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to time enter into written agreements amending or changing any provision of
this Agreement or any other Loan Document or the rights of the Banks or the
Borrower hereunder or thereunder, or may grant written waivers or consents to a
departure from the due performance of the obligations of the Borrower hereunder
or thereunder; except that with respect to any waiver or consent regarding the
terms of any particular Bid Loan, only the consent of the Bank which made such
Bid Loan need be obtained.
9.02 No Implied Waivers; Cumulative Remedies; Writing
Required. No course of dealing and no delay or failure of any Bank in
exercising any right, power, remedy or privilege under this Agreement or any
other Loan Document shall affect any other or future exercise thereof or
operate as a waiver thereof; nor shall any single or partial exercise thereof
or any abandonment or discontinuance of steps to enforce such a right, power,
remedy or privilege preclude any further exercise thereof or of any other
right, power, remedy or privilege. The rights and remedies of the Banks under
this Agreement and any other Loan Documents are cumulative and not exclusive of
any rights or remedies which they would otherwise have. Any waiver, permit,
consent or approval of any kind or character on the part of any Bank of any
breach or default under this Agreement or any such waiver of any provision or
condition of this Agreement must be in writing and shall be effective only to
the extent specifically set forth in such writing.
9.03 Reimbursement and Indemnification of Banks by the
Borrower; Taxes. The Borrower agrees unconditionally upon demand to pay or
reimburse to each Bank and to save such Bank harmless against (i) liability for
the payment of all reasonable out-of-pocket costs, expenses and disbursements
(including fees and expenses of counsel for each Bank except with respect to
(a) and (b) below), incurred by such Bank (a) in connection with the
administration and interpretation of this Agreement, and other instruments and
documents to be delivered hereunder, (b) relating to any amendments, waivers or
consents pursuant to the provisions hereof, (c) in connection with the
enforcement of this Agreement or any other Loan Document, or collection of
amounts due hereunder or thereunder or the proof and allowability of any claim
arising under this Agreement or any other Loan Document, whether in bankruptcy
or receivership proceedings or otherwise, and (d) in any workout, restructuring
or in connection with the protection, preservation, exercise or enforcement of
any of the terms hereof or of any rights hereunder or under any other Loan
Document or in connection with any foreclosure, collection or bankruptcy
proceedings, or (ii) all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever which may be imposed on, incurred by or asserted against such
Bank, in its capacity as such, in any way relating to or arising out of this
Agreement or any other Loan Documents or any action taken or
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omitted by such Bank hereunder or thereunder, provided that the Borrower shall
not be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
(A) if the same results from such Bank's gross negligence or willful
misconduct, or (B) if the Borrower was not given notice of the subject claim
and the opportunity to participate in the defense thereof, at its expense, or
(C) if the same results from a compromise or settlement agreement entered into
without the consent of the Borrower. The Banks will attempt to minimize the
fees and expenses of legal counsel for the Banks which are subject to
reimbursement by the Borrower hereunder by considering the usage of one law
firm to represent the Banks if appropriate under the circumstances. The
Borrower agrees unconditionally to save the Banks harmless from and against any
and all present or future claims, liabilities or losses with respect to or
resulting from any omission to pay or delay in paying any such taxes, fees or
impositions.
9.04 Holidays. Whenever any payment or action to be made or
taken hereunder shall be stated to be due on a day which is not a Business Day,
such payment or action shall be made or taken on the next following Business
Day.
9.05 Notices. All notices, requests, demands, directions and
other communications (collectively "notices") given to or made upon any party
hereto under the provisions of this Agreement shall be by telephone or in
writing (including telex or facsimile communication) unless otherwise expressly
permitted hereunder and shall be delivered or sent by telex or facsimile to the
respective parties at the addresses and numbers set forth under their
respective names on the signature pages hereof or in accordance with any
subsequent unrevoked written direction from any party to the others. All
notices shall, except as otherwise expressly herein provided, be effective (a)
in the case of telex or facsimile, when received, (b) in the case of
hand-delivered notice, when hand delivered, (c) in the case of telephone, when
telephoned, provided, however, that in order to be effective, telephonic
notices must be confirmed in writing no later than the next day by letter,
facsimile or telex, (d) if given by mail, four (4) days after such
communication is deposited in the mails with first class postage prepaid,
return receipt requested, and (e) if given by any other means (including by air
courier), when delivered; PROVIDED, that notices to the Banks shall not be
effective until received. Any Bank giving any notice to the Borrower shall
simultaneously send a copy thereof to the Banks, and the Banks shall promptly
notify the other Banks of the receipt by it of any such notice.
9.06 Severability. The provisions of this Agreement are
intended to be severable. If any provision of this Agreement shall be held
invalid or unenforceable in whole or in part in any
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jurisdiction such provision shall, as to such jurisdiction, be ineffective to
the extent of such invalidity or unenforceability without in any manner
affecting the validity or enforceability thereof in any other jurisdiction or
the remaining provisions hereof in any jurisdiction.
9.07 Governing Law. This Agreement shall be deemed to be a
contract under the laws of the State of New York and for all purposes shall be
governed by and construed and enforced in accordance with the laws of the State
of New York without regard to its conflict of laws principles.
9.08 Prior Understanding. This Agreement supersedes all
prior understandings and agreements, whether written or oral, between the
parties hereto and thereto relating to the transactions provided for herein and
therein, including any prior confidentiality agreements and commitments.
9.09 Duration; Survival. All representations and warranties
of the Borrower and MC contained herein or made in connection herewith shall
survive the making of Bid Loans and shall not be waived by the execution and
delivery of this Agreement, any investigation by the Banks, the making of Bid
Loans, or payment in full of the Bid Loans. All covenants and agreements of
the Borrower contained in Sections 6.01, 6.02 and 6.03 herein shall continue in
full force and effect from and after the date hereof until termination of this
Agreement and payment of all sums due hereunder. All covenants and agreements
of the Borrower contained herein relating to the payment of principal,
interest, premiums, additional compensation or expenses and indemnification,
including those set forth in the Notes, Article V and Section 9.03 hereof,
shall survive payment in full of the Bid Loans and termination of this
Agreement. The Guaranty Agreement shall terminate upon indefeasible payment in
full to the Banks of all sums due the Banks under the Agreement (including
payment by MC of any sums previously paid but received by the Borrower from the
banks pursuant to Section 547 or ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Bankruptcy
Code, 11 U.S.C. Section 547 and 548, or other Laws).
9.10 Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of the Banks, the Borrower and their
respective successors and assigns, except that the Borrower may not assign or
transfer any of its rights and obligations hereunder or any interest herein.
Each Bank may, at its own cost, make assignments of or sell participations in
all or any part of any particular Bid Loan made by it to one or more banks or
other entities, subject prior to a Default or Event of Default to the consent
of the Borrower with respect to any assignee, such consent not to be
unreasonably withheld. Upon delivery of a copy of the assignment agreement to
Borrower, an assignee of a particular Bid Loan shall have, to the extent of
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28
such assignment (unless otherwise provided therein), the same rights, benefits
and obligations as it would have if it had been a signatory Bank hereunder and
made that particular Bid Loan. In the case of a participation, the participant
shall only have the rights specified in Section 7.02(c) (the participant's
rights against such Bank in respect of such participation to be those set forth
in the agreement executed by such Bank in favor of the participant relating
thereto and not to include any voting rights and all amounts payable by
Borrower or MC hereunder or thereunder shall be determined as if such Bank had
not sold such participation. Each Bank may furnish any publicly available
information concerning Borrower and MC and any other information concerning
Borrower and MC in the possession of such Bank from time to time to assignees
and participants (including prospective assignees or participants) provided
such assignees and participants first agree in writing to be bound by the
provisions of Section 9.11 hereof.
9.11 Confidentiality. The Banks each agree to keep
confidential all information obtained from the Borrower which is nonpublic and
confidential or proprietary in nature (including any information the Borrower
specifically designates as confidential), except as provided below, and to use
such information only in connection with their respective capacities under this
Agreement and for the purposes contemplated hereby. The Banks shall be
permitted to disclose such information (i) to outside legal counsel,
accountants and other professional advisors who need to know such information
in connection with the administration and enforcement of this Agreement,
subject to agreement of such persons to maintain the confidentiality, (ii) to
the extent requested by any bank regulatory authority or, with notice to the
Borrower, as otherwise required by applicable Law or by any subpoena or similar
legal process, or in connection with any investigation or proceeding arising
out of the transactions contemplated by this Agreement, (iii) to assignees and
participants as contemplated by Section 9.10, (iv) if it becomes publicly
available other than as a result of a breach of this Agreement or becomes
available from a source not subject to confidentiality restrictions, or (v) the
Borrower shall have consented to such disclosure.
9.12 Counterparts. This Agreement may be executed by
different parties hereto on any number of separate counterparts, each of which,
when so executed and delivered, shall be an original, and all such counterparts
shall together constitute one and the same instrument.
9.13 Bank's Consent. Whenever any Bank's consent is required
to be obtained under this Agreement or any of the other Loan Documents as a
condition to any action, inaction, condition or event, the Banks and each Bank
shall be authorized to give or withhold such consent in its sole and absolute
discretion and to
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29
condition its consent upon the giving of additional collateral, the payment of
money or any other matter.
9.14 Exceptions. The representations, warranties and
covenants contained herein shall be independent of each other and no exception
to any representation, warranty or covenant shall be deemed to be an exception
to any other representation, warranty or covenant contained herein unless
expressly provided, nor shall any such exceptions be deemed to permit any
action or omission that would be in contravention of applicable Law.
9.15 Consent to Forum; Waiver of Jury Trial. The Borrower
and MC each hereby irrevocably consents to the nonexclusive jurisdiction of the
state and federal courts, located in New York City, New York, and waives
personal service of any and all process upon it and consents that all such
service of process be made by certified or registered mail directed to the
Borrower at the addresses provided for in Section 11.06 hereof and service so
made shall be deemed to be completed upon actual receipt thereof. Each of the
Borrower and MC waives any objection to jurisdiction and venue of any action
instituted against it as provided herein and agrees not to assert any defense
based on lack of jurisdiction or venue. The Borrower, MC and the Banks hereby
waive trial by jury in any action, suit, proceeding or counterclaim of any kind
arising out of or related to this Agreement, any other Loan Document or the
Collateral to the full extent permitted by Law.
9.16 MC Guaranty. MC hereby absolutely, unconditionally and irrevocably
(a) guarantees and becomes surety for the full and
punctual payment when due, whether at stated maturity, by required prepayment,
declaration, acceleration, demand or otherwise, of all obligations of the
Borrower with respect to this Agreement and the Loan Documents, whether for
principal, interest, or otherwise (including all such amounts which would
become due but for the operation of the automatic stay under Section 362(a) of
the United States Bankruptcy Code, 11 U.S.C. Section 362(a), and the Operation
of Sections 502(b) and 506(b) of the United States Bankruptcy Code, 11 U.S.C.
Section 506(b) and Section 506(b)), and
(b) indemnifies and holds harmless each Bank and
each holder of a Note for any and all costs and expenses (including reasonable
attorney's fees and expenses) incurred by such Bank or such holder, as the case
may be, in enforcing any rights under this guaranty.
This is an agreement of suretyship as well as of guaranty, is
a guarantee of payment and performance and not merely of collectibility, and is
in no way conditioned upon any
- 25 -
30
attempt to collect from or proceed against the Borrower or upon any other event
or circumstance. The obligations of MC are direct and primary, are independent
of the Borrower's obligations and a separate action or proceeding may be
brought regardless of whether an action or proceeding is brought against the
Borrower. The obligations of MC are absolute, unconditional and irrevocable,
irrespective of (i) any increase or decrease or change in the amount borrowed
by the Borrower (whether or not contemplated by the Loan Documents), but not in
excess of the Bid Loan Aggregate Limit of $20,000,000 (provided that if the Bid
Loan Aggregate Limit of $20,000,000 were to be exceeded, MC Guaranty shall
still remain in effect for $20,000,000 of principal of Bid Loans and interest
and charges thereon), (ii) any failure to assert any breach, failure of a
condition or default under the Loan Documents, (iii) any defense, set-off or
counterclaim of the Borrower (excluding only the defense of full, strict and
indefeasible payment and performance), and (iv) the effect of any stay or
injunction resulting from the pendency of any bankruptcy, insolvency or similar
proceeding involving the Borrower. MC waives all notices, disclosures and
demand of any nature which might otherwise be required including, without
limitation, any notice of nonpayment, nonperformance, dishonor or protest under
any Loan Document, any right to a marshalling of assets, any benefit of any
statute of limitations, any requirement to mitigate damages resulting from a
default any right pertaining to election of remedies.
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31
IN WITNESS WHEREOF, the parties hereto, by their officers
thereunto duly authorized, have executed this Agreement as of the day and year
first above written.
ATTEST: ARISTECH CHEMICAL
CORPORATION
/s/ ▇.▇. ▇▇▇▇▇▇▇ By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
[Seal] Title: Treasurer
Address for Notices:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇. ▇. ▇▇▇▇▇▇▇▇▇▇
Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇
MITSUBISHI CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: General Manager
International Finance
Department
Address for Notices:
▇-▇, ▇▇▇▇▇▇▇▇▇▇ ▇ - ▇▇▇▇▇,
▇▇▇▇▇▇▇-▇▇
▇▇▇▇▇ 100-86, Japan
Telecopier No. 011-813-3210-2518
Attention: ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇
Telephone No. ▇▇▇-▇▇▇-▇▇▇▇-▇▇▇▇
- 27 -
32
PNC BANK, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------
Title: Vice President
Address for Notices:
▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇
THE CHASE MANHATTAN BANK, N.A.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------
Title: Managing Director
Address for Notices:
The Chase Manhattan Bank
(National Association)
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇
Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇
- 28 -
▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Bank, N.A.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇ Chemical Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Mitsubishi Corporation
▇-▇, ▇▇▇▇▇▇▇▇▇▇ ▇ - ▇▇▇▇▇,
▇▇▇▇▇▇▇-▇▇
▇▇▇▇▇ 100-86, Japan
Dear Ladies and Gentlemen:
Reference is hereby made to the Discretionary Credit Agreement (the
"Credit Agreement") among Aristech Chemical Corporation, Mitsubishi
Corporation, The Chase Manhattan Bank, N.A. ("Chase") and PNC, N.A. All terms
defined in the Credit Agreement shall be used herein as defined in the Credit
Agreement unless otherwise defined herein or the context otherwise requires.
For valuable consideration, the receipt of which is hereby
acknowledged by the parties hereto, the Borrower, MC and Chase hereby agree
with respect to each Bid Loan made by Chase to the Borrower, that, in addition
to the dates interest is payable thereon pursuant to Section 3.02 of the credit
Agreement, interest also shall be due and payable thereon on the same date
principal of such Bid Loan is due and payable.
This letter agreement shall be effective when counterparts of this
letter amendment shall have been executed by the Borrower, MC and Chase.
Except as specifically amended hereby, all the provisions of the
Credit Agreement with respect to each Bid Loan made by Chase to the Borrower
shall remain unamended and in full force and effect.
THE CHASE MANHATTAN BANK, N.A.
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
34
Agreed and Accepted:
ARISTECH CHEMICAL CORPORATION
By /s/ ▇. ▇. ▇▇▇▇▇▇▇
------------------------
Name: ▇. ▇. ▇▇▇▇▇▇▇
Title: Treasurer
MITSUBISHI CORPORATION
By
------------------------
Name:
Title:
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35
FIRST AMENDMENT TO DISCRETIONARY CREDIT AGREEMENT
THIS FIRST AMENDMENT TO DISCRETIONARY CREDIT AGREEMENT is dated as of
December 20, 1995 (the "Amendment") and is made by and among ARISTECH CHEMICAL
CORPORATION, a Delaware corporation (the "Borrower"), MITSUBISHI CORPORATION, a
Japanese corporation ("MC") and THE CHASE MANHATTAN BANK, N.A. and PNC BANK,
NATIONAL ASSOCIATION (collectively, the "Banks" and individually a "Bank").
WITNESSETH:
WHEREAS, the Borrower, MC and the Banks are parties to that certain
Discretionary Credit Agreement dated as of January 4, 1995 (as the same has
been amended, the "Credit Agreement");
WHEREAS, the parties hereto desire to amend the Expiration Date under
the Credit Agreement; and
WHEREAS, defined terms used herein shall have the meanings given to
them in the Credit Agreement.
NOW, THEREFORE, the parties hereto, in consideration of their mutual
covenants and agreements hereinafter set forth and intending to be legally
bound hereby, covenant and agree as follows:
1. Expiration Date. The definition of "Expiration Date"
contained in Section 1.01 of the Credit Agreement is hereby amended and
restated to read as follow:
"Expiration Date shall mean January 3, 1997."
2. Conditions Precedent. The effectiveness of this amendment is
conditioned upon satisfaction of each of the following conditions precedent:
(a) Event of a Default; Certificate. The representations
and warranties of the Borrower and MC contained in Article IV of the Credit
Agreement shall be true and accurate on and as of the date of this Amendment
with the same effect as though such representations and warranties had been
made on and as of such date (except representations and warranties which relate
solely to an earlier date or time, which representations and warranties shall
be true and correct on and as of the specific dates or times referred to
therein), and the Borrower shall have performed and complied with all covenants
and conditions herein and in the Credit Agreement; no Event of Default or
Potential Default under the Credit Agreement shall have occurred and be
continuing or shall exist; Borrower shall have delivered to the Banks a
certificate of the Borrower, dated the date hereof and signed by the Chief
Executive Officer,
36
Treasurer, President or Chief Financial Officer of the Borrower to each such
effect.
(b) Secretary's Certificate. There shall have been
delivered to the Banks for the benefit of each Bank a certificate dated the
date hereof and signed by the Secretary or an Assistant Secretary of the
Borrower, certifying as to (i) all action taken by the Borrower in connection
with this Amendment; (ii) the names of the officer or officers authorized to
sign this Amendment and the true signatures of such officer or officers.
(c) Opinions. There shall be delivered to the Banks for
the benefit of each Bank a written opinion of the General Counsel for the
Borrower in the form of Exhibit 2(c)(1) hereto and ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇, counsel
for MC in the form of Exhibit 2(c)(2), each dated the date hereof;
(d) Reimbursement of Expenses. The Borrower shall have
paid or cause to be paid to the Banks for itself and for the account of the
Banks to the extent not previously paid all costs and expenses for which the
Banks are entitled to be reimbursed.
3. Addresses for Notices. The Address for notices to The Chase
Manhattan Bank, N.A. is hereby amended to read as set forth on Schedule 3
hereto.
4. Full Force and Effect. The Credit Agreement and each of the
other Loan Documents remain in full force and effect on and after the date of
this Amendment. The parties hereto do not amend or waive any provisions of the
Credit Agreement or the other Loan Documents except as expressly set forth
herein.
- 2 -
37
IN WITNESS WHEREOF, the parties hereto, by their officers thereunto
duly authorized, have executed this Agreement as of the day and year first
above written.
ATTEST: ARISTECH CHEMICAL CORPORATION
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------- -------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Secretary Treasurer
[SEAL]
MITSUBISHI CORPORATION
By: /s/ ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
---------------------------
▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
General Manager,
International Finance
Department
- 3 -
38
PNC BANK, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Title: Vice President
THE CHASE MANHATTAN BANK, N.A.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------
Title: Managing Director
- 4 -