FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): February 8, 1999
OLIN CORPORATION
(Exact name of Registrant as specified in its charter)
VIRGINIA 1-1070 13-1872319
(State or other jurisdiction of incorporation) (Commission File Number) (I.R.S. Employer Identification No.)
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501 Merritt 7
P. O. Box 4500
Norwalk, Connecticut 06856-4500
(Address of principal executive offices) (Zip code)
(203) 750-3000
(Registrant's telephone number, including area code)
(N/A)
(Former name or former address, if changed since last report)
Item 2. Acquisition or Disposition of Assets.
On February 8, 1999, Olin Corporation ("Olin") distributed to its common shareholders one share of Arch Chemicals, Inc. ("Arch Chemicals") Common Stock, par value $1 per share, for each two shares of Olin Common Stock held of record as of the close of business on February 1, 1999, (the "Distribution"). Olin also transferred to Arch Chemicals all of the specialty chemicals businesses formerly conducted by Olin. The Distribution was consummated pursuant to the terms of a Distribution Agreement dated as of February 1, 1999 by and between Olin and Arch Chemicals, a copy of which is filed as an exhibit hereto.
Item 7. Financial Statement and Exhibits.
As noted above, on February 8, 1999, Olin distributed its specialty chemicals businesses to its shareholders as a separate public company, Arch Chemicals. Holders of Olin Common Stock of record on February 1, 1999 received one share of Arch Chemicals Common Stock for every two shares of Olin Common Stock held.
Pro Forma
The following unaudited pro forma condensed consolidated information is based on the historical consolidated financial statements of Olin adjusted to give effect to the Distribution.
The unaudited pro forma condensed consolidated balance sheet as of September 30, 1998 gives effect to the elimination of the specialty chemicals businesses, as well as other adjustments, assuming the Distribution had taken place on September 30, 1998.
The unaudited pro forma condensed consolidated income statements for the year ended December 31, 1997 and the nine months ended September 30, 1998 give effect to the elimination of the specialty chemicals businesses as well as other adjustments, assuming the Distribution had taken place as of the beginning of each of those periods.
The pro forma adjustments are based upon available information and certain assumptions that management believes are reasonable.
The following unaudited pro forma condensed consolidated financial statements have been prepared in accordance with the rules and regulations of the Securities and Exchange Commission. Management does not believe that this pro forma presentation is indicative of the financial position and results which would have occurred had the transactions occurred on the dates indicated in the pro forma condensed consolidated financial statements because of the hypothetical nature of the pro forma information and because Olin may have operated its other remaining businesses differently during those periods.
OLIN CORPORATION
Pro Forma Condensed Consolidated Income Statement Nine Months Ended September 30, 1998
(Unaudited)
(in millions, except share data)
Pro forma
Historically Divestments Adjustment
-------------- -------------
Reported Arch (a) Pro forma
--------------- -------------- ------------- ----------------------
Sales $ 1,768 694 16 $ 1,090
Operating Expenses:
Cost of Goods Sold 1,374 493 16 897
Selling and Administration 225 128 - 97
Research and Development 20 13 - 7
Interest Expense 14 - - 14
Interest Income 3 - - 3
Other Income 10 3 - 7
Loss on Sales and Restructurings of 42 - - 42
Businesses ----------- --- ------------ -----------
Income Before Taxes 106 63 - 43
Income Tax Provision 35 22 - 13
----------- --- ------------ -----------
Net Income $ 71 41 - $ 30
=========== === ============ ===========
Net Income Per Common Share:
Basic $1.47 $0.62
Diluted $1.46 $0.62
Average Common Shares
Outstanding:
Basic 48,013,000 48,013,000
Diluted 48,285,000 48,285,000
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OLIN CORPORATION
Pro Forma Condensed Consolidated Income Statement Year Ended December 31, 1997
(Unaudited)
(in millions, except share data)
Pro forma
Historically Divestments Adjustment
------------------ -------------------
Reported Arch (a) Pro forma
-------------------- ------------------ ------------------- ----------------
Sales $ 2,410 930 23 $ 1,503
Operating Expenses:
Cost of Goods Sold 1,866 676 22 1,212
Selling and Administration 285 154 - 131
Research and Development 29 21 - 8
Interest Expense 25 - - 25
Interest Income 11 - - 11
Other Income 18 7 - 11
----------- ----- ------------------ -----------
Income Before Taxes 234 86 1 149
Income Tax Provision 81 30 - 51
----------- ----- ------------------ -----------
Net Income $ 153 56 1 $ 98
=========== ===== ================== ===========
Net Income Per Common
Share:
Basic $3.02 $1.94
Diluted $3.00 $1.93
Average Common Shares
Outstanding:
Basic 50,519,000 50,519,000
Diluted 50,887,000 50,887,000
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Notes to Pro Forma Condensed Consolidated Income Statement For the Nine Months Ended September 30, 1998 and Year Ended December 31, 1997
(Unaudited)
The preceding pro forma income statements present the consolidated income of Olin for the nine months ended September 30, 1998 and the year ended December 31, 1997 after eliminating the specialty chemicals businesses and after giving effect to the adjustment described below.
The adjustment made to these pro forma income statements assumes that the Distribution occurred as of the beginning of each period.
It is management's opinion that these pro forma results are not necessarily indicative of the results which would have occurred had the Distribution been made at the beginning of each of those periods.
Historically Reported
The historically reported column represents the historical consolidated income of Olin for the nine months ended September 30, 1998 and year ended December 31, 1997, respectively.
Divestment
The divestments represent the historical results of the specialty chemicals businesses for the nine months ended September 30, 1998 and the year ended December 31, 1997, respectively.
Prior to the Distribution, Arch Chemicals succeeded to a $250 million credit facility ("Credit Facility") established by Olin. Prior to the Distribution, Olin borrowed $75 million under the Credit Facility, which liability was assumed by Arch Chemicals. Olin intends to use the proceeds for general corporate purposes, which may include share repurchases and future acquisitions. An assessment of corporate overhead is included in selling and administration expenses with the allocation based on either effort committed or number of employees. Management believes that the allocation methods used to allocate the costs and expenses are reasonable, however, such allocated amounts may or may not necessarily be indicative of what selling and administration expenses would have been if Arch Chemicals had operated independently of Olin. Income taxes have been calculated based on Arch Chemicals' allocated share of Olin's consolidated income tax provision and are calculated on a separate company basis pursuant to the requirements of Statement of Financial Accounting Standards No. 109 "Accounting for Income Taxes".
This transaction was a tax free spin-off, and accordingly, no gain or loss was recorded by Olin.
Pro Forma Adjustments
(a) This adjustment records the sales from Olin's Chlor-Alkali division to Arch Chemicals which had been eliminated in the historical consolidated income statements as they were considered inter-company sales. This adjustment reflects the pro forma impact of the chloric supply agreement between Olin and Arch Chemicals entered into at the time of the distribution. Proforma adjustments exclude spin-off costs of $21 million pretax which were recorded in the fourth quarter of 1998.
OLIN CORPORATION
Pro Forma Condensed Consolidated Balance Sheet September 30, 1998
(Unaudited)
(in millions)
Pro forma
Historically Divestments Adjustment
------------- ------------------
Reported Arch (a) Pro forma
--------------- ------------- ------------------ ------------
ASSETS
Current Assets:
Cash and Equivalents $ 81 (6) 75 $ 150
Short-term Investments 33 - - 33
Accounts Receivable, net 395 (161) - 234
Inventories 329 (121) - 208
Other Current Assets 39 (23) - 16
------ ---- ------------------ ------
Total Current Assets 877 (311) 75 641
Investments and Advances 28 (20) - 8
Property, Plant and Equipment, net 806 (305) - 501
Other Assets 105 (55) - 50
------ ---- ------------------ ------
Total Assets $1,816 (691) 75 $1,200
====== ==== ================== ======
LIABILITIES
Current Liabilities:
Short-Term Borrowings and Current
Installments of Long-Term Debt $ 1 - - $ 1
Accounts Payable 201 (102) - 99
Accrued Liabilities 266 (65) - 201
------ ---- ------------------ ------
Total Current Liabilities 468 (167) - 301
Long-Term Debt 236 (5) - 231
Other Liabilities 281 (45) - 236
------ ---- ------------------ ------
Total Liabilities 985 (217) - 768
------ ---- ------------------ ------
Commitments and Contingencies
Shareholders' Equity:
Common Stock 47 - - 47
Additional Paid-In Capital 277 - - 277
Cumulative Translation Adjustment (25) 14 - (11)
Retained Earnings 532 (488) 75 119
------ ---- ------------------ ------
Total Shareholders' Equity 831 (474) 75 432
------ ---- ------------------ ------
Total Liabilities and Shareholders' Equity $1,816 (691) 75 $1,200
====== ==== ================== ======
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Notes to Pro Forma Condensed Balance Sheet, September 30, 1998 (Unaudited)
The preceding pro forma balance sheet presents the consolidated financial position as of September 30, 1998 after eliminating the specialty chemicals businesses and after giving effect to the adjustments described below.
The adjustments made to this pro forma balance sheet assume that the Distribution occurred as of September 30, 1998.
Historically Reported
The historically reported column represents the historical balance sheet of Olin as of September 30, 1998.
Divestment
The divestments represent the historical balance sheet positions of the specialty chemicals businesses and the amounts related to the Distribution as of September 30, 1998.
Prior to the Distribution Arch Chemicals succeeded to a $250 million Credit Facility established by Olin. Prior to the Distribution, Olin borrowed $75 million under the Credit Facility, which liability was assumed by Arch Chemicals. Olin intends to use the proceeds for general corporate purposes, which may include share repurchases and future acquisitions.
Pro Forma Adjustments
(a) This adjustment records the $75 million borrowed by Olin under the Credit Facility prior to the Distribution, which liability was assumed by Arch Chemicals.
Exhibit No. Document
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2.1 Distribution Agreement between Olin Corporation and Arch
Chemicals, Inc., dated as of February 1, 1999.
10.1 364-Day Credit Agreement dated as of January 27, 1999, among
Arch Chemicals, Inc., Olin Corporation, the Lenders party
thereto, Bank of America, National Trust and Savings
Association, as Syndication Agent, Wachovia Bank, N.A., as
Documentation Agent, The Chase Manhattan Bank, as Administrative
Agent and Chase Securities, Inc., as Arranger.
10.2 Five-year Credit Agreement dated as of January 27, 1999, among
Arch Chemicals, Inc., Olin Corporation, the Lenders party
thereto, Bank of America, National Trust and Savings
Association, as Syndication Agent, Wachovia Bank, N.A., as
Documentation Agent, The Chase Manhattan Bank, as Administrative
Agent and Chase Securities, Inc., as Arranger.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
Olin Corporation
By: /s/ Johnnie M. Jackson, Jr.
------------------------------
Johnnie M. Jackson, Jr.
Vice President, General
Counsel and Secretary
Date: February 23, 1999
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EXHIBIT INDEX
2.1 Distribution Agreement between Olin Corporation and Arch
Chemicals, Inc., dated as of February 1, 1999.
10.1 364-Day Credit Agreement dated as of January 27, 1999, among Arch
Chemicals, Inc., Olin Corporation, the Lenders party thereto,
Bank of America, National Trust and Savings Association, as
Syndication Agent, Wachovia Bank, N.A., as Documentation Agent,
The Chase Manhattan Bank, as Administrative Agent and Chase
Securities, Inc., as Arranger.
10.2 Five-year Credit Agreement dated as of January 27, 1999, among
Arch Chemicals, Inc., Olin Corporation, the Lenders party
thereto, Bank of America, National Trust and Savings Association,
as Syndication Agent, Wachovia Bank, N.A., as Documentation
Agent, The Chase Manhattan Bank, as Administrative Agent and
Chase Securities, Inc., as Arranger.
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EXHIBIT 2
DISTRIBUTION AGREEMENT
between
OLIN CORPORATION,
and
ARCH CHEMICALS, INC.
DISTRIBUTION AGREEMENT
TABLE OF CONTENTS
Page
ARTICLE I
Definitions
SECTION 1.01. Definitions............................................. 1
ARTICLE II
Certain Transactions at or Prior to the Distribution;
Certain Covenants
SECTION 2.01. Certain Transactions.................................... 13
SECTION 2.02. Financing............................................... 16
SECTION 2.03. Operations in Ordinary Course........................... 16
SECTION 2.04. Capital Structure....................................... 16
SECTION 2.05. Resignations............................................ 17
SECTION 2.06. Further Assurances...................................... 17
SECTION 2.07. No Representations or Warranties........................ 17
SECTION 2.08. Elimination of Guarantees............................... 18
SECTION 2.09. Intercompany Accounts................................... 18
SECTION 2.10. Transfers Not Effected Prior to Distribution Date;
Transfers Deemed Effective as of Distribution Date.... 18
SECTION 2.11. Ancillary Agreements.................................... 19
ARTICLE III
The Distribution
SECTION 3.01. Distribution Record Date and Distribution Date.......... 19
SECTION 3.02. The Agent............................................... 20
SECTION 3.03. The Distribution........................................ 20
SECTION 3.04. Contract Provisions..................................... 20
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Page
ARTICLE IV
Access to Information
SECTION 4.01. Provision of Corporate Records.......................... 20
SECTION 4.02. Access to Information................................... 21
SECTION 4.03. Reimbursement; Records Retention........................ 21
SECTION 4.04. Witness Services........................................ 21
SECTION 4.05. Confidentiality......................................... 22
ARTICLE V
Dispute Resolution
SECTION 5.01. Dispute Resolution...................................... 23
ARTICLE VI
Insurance
SECTION 6.01. Coverage................................................ 24
SECTION 6.02. Claims Based Upon Pre-Distribution Date Injury; Waiver.. 25
SECTION 6.03. Administration.......................................... 27
SECTION 6.04. Insurance Proceeds...................................... 27
SECTION 6.05. Retrospectively Rated Policies.......................... 27
SECTION 6.06. Agreement for Waiver of Conflict and Shared Defense..... 28
SECTION 6.07. Cooperation............................................. 28
ARTICLE VII
Indemnification
SECTION 7.01. Indemnification......................................... 28
SECTION 7.02. Insurance Matters....................................... 29
SECTION 7.03. Procedures for Indemnification.......................... 29
SECTION 7.04. Indemnification Payments................................ 32
SECTION 7.05. Other Adjustments....................................... 32
SECTION 7.06. Consolidation, Merger, Transfer, or Lease............... 32
SECTION 7.07. Survival................................................ 33
ii
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Page
ARTICLE VIII
Miscellaneous
SECTION 8.01. Conditions to Obligations............................... 33
SECTION 8.02. Exhibits and Schedules; Interpretation.................. 34
SECTION 8.03. Entire Agreement........................................ 35
SECTION 8.04. Ancillary Agreements ................................... 35
SECTION 8.05. Counterparts............................................ 35
SECTION 8.06. Survival of Agreements.................................. 35
SECTION 8.07. Expenses................................................ 35
SECTION 8.08. Notices................................................. 35
SECTION 8.09. Waivers................................................. 36
SECTION 8.10. Amendments.............................................. 36
SECTION 8.11. Assignment.............................................. 36
SECTION 8.12. Successors and Assigns.................................. 36
SECTION 8.13. Termination............................................. 36
SECTION 8.14. Subsidiaries............................................ 37
SECTION 8.15. Third Party Beneficiaries............................... 37
SECTION 8.16. Attorney Fees........................................... 37
SECTION 8.17. Title and Headings...................................... 37
SECTION 8.18. Exhibits and Schedules.................................. 37
SECTION 8.19. Specific Performance.................................... 37
SECTION 8.20. Governing Law........................................... 38
SECTION 8.21. Consent to Jurisdiction................................. 38
SECTION 8.22. Severability............................................ 38
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EXHIBITS
Exhibit A - Form of Arch Amended and Restated
Articles of Incorporation
Exhibit B - Form of Arch By-laws
Exhibit C - Form of Arch Rights Agreement
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SCHEDULES
Schedule 1.01(a) - Real Estate Schedule 1.01(b) - Subsidiaries Schedule 1.01(c) - Employee Matters Schedule 1.01(d) - Retained Assets Schedule 1.01(e) - Retained Businesses Schedule 1.01(f) - Litigation Schedule 1.01(g) - Certain Contractual Liabilities Schedule 1.01(h) - Environmental |
Schedule 1.01(i) - Certain Excluded Liabilities Schedule 1.01(j) - Arch Product Lines Schedule 2.08 - Guarantees Schedule 3.04 - Contract Provisions |
DISTRIBUTION AGREEMENT dated as of February 1, 1999, between OLIN CORPORATION, a Virginia corporation ("Olin"), and ARCH CHEMICALS, INC., a Virginia corporation ("Arch").
WHEREAS, the Board of Directors of Olin has deter mined to distribute to the holders of shares of Common Stock, par value $1 per share, of Olin (the "Olin Common Stock") all the outstanding shares of Common Stock, par value $1 per share, of Arch (the "Arch Common Shares");
WHEREAS, it is the intention of the parties that the Distribution (as defined below) will be a tax-free transaction pursuant to Sections 355 and 368(a)(1)(D) of the Code (as defined below), such that no gain or loss shall be recognized by the shareholders of Olin for federal income tax purposes as a result of the Distribution; and
WHEREAS, it is desirable to allocate and assign responsibility for various matters affecting the activities of Arch and to set forth the principal corporate trans actions required to effect such distribution and other agreements that will govern certain other matters following the Distribution.
NOW, THEREFORE, in consideration of the mutual agreements, provisions and covenants contained in this Agreement, the parties hereto hereby agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Definitions. As used in this Agreement, the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined):
"Action" shall mean any claim, action, order, suit, arbitration, inquiry, proceeding or investigation by or before any court, any governmental or other regulatory or administrative official, agency, body or commission or any arbitration tribunal, including any claims or contract disputes concerning any governmental contract.
"Affiliate" shall mean, when used with respect to a specified person, another person that directly, or indi-
rectly through one or more intermediaries, controls or is controlled by or is under common control with the person specified.
"Agent" shall mean ChaseMellon Shareholder Services, L.L.C.
"Agreement" shall mean this Distribution Agreement.
"Ancillary Agreements" shall mean all of the written agreements,
instruments, assignments or other written arrangements (other than this
Agreement) entered into in connection with the transactions contemplated
hereby, including (i) the Tax Sharing Agreement; (ii) the Chlor-Alkali
Supply Agreement; (iii) the Charleston Services Agreement; (iv) the
Covenant Not to Compete Agreement; (v) the Intellectual Property Transfer
and License Agree ment; (vi) the Transition Services Agreement; (vii) the
International Transition Services Agreements; (viii) the Trade Name License
Agreement; (ix) the Employee Benefits Agreement; (x) the Information
Technology Services Agreement; (xi) the Novation Agreements; (xii) the Lake
Charles Operating Agreement; (xiii) the Charleston Operating Agreement;
(xiv) the Hydrazine Operating Agreement; (xv) the McIntosh Services
Agreement; (xvi) the Sublease; and (xvii) the International Transfer
Agreements.
"Arch Assets" shall mean, collectively, all the Assets of Olin and its Subsidiaries primarily related to the Arch Business, including: (i) all Assets included on the Arch Balance Sheet or the accounting records supporting the Arch Balance Sheet, and all Assets acquired between September 30, 1998 and the Distribution Date which would have been included on the Arch Balance Sheet had they been owned on September 30, 1998; (ii) all Assets primarily related to the Arch Business, which are owned, leased, licensed or held by Olin or Arch or any of their respective Affiliates on the Distribution Date; (iii) the real property (including the buildings, fixtures and improvements located thereon) listed on Schedule 1.01(a); (iv) all of the outstanding shares of all classes of capital stock of the Subsidiaries listed on Schedule 1.01(b); (v) subject to Section 2.01(d), the Assigned Contracts; (vi) those books and records to be delivered to Arch and rights of access to other books and records as provided in Article IV of this Agreement; (vii) the rights of Arch under the Company Policies as provided in Article VI of this Agreement; (viii) subject to Section 6.02(d), all rights, benefits and privileges under the Hunt Policies; (ix) any pension Assets, pension funds or other Assets expressly contemplated to be
transferred, licensed or otherwise made available to Arch pursuant to the
Employee Benefits Agreement or any of the other Ancillary Agreements; and
(x) the Intellectual Property that is to be transferred to Arch pursuant to
the Intellectual Property Transfer and License Agreement, subject to the
limitations set forth in such agreement; provided, however, that none of
the Assets set forth on Schedule 1.01(d) shall constitute Arch Assets.
"Arch Balance Sheet" shall mean the combined balance sheet of Arch as of September 30, 1998, as set forth in the Information Statement.
"Arch Business" shall mean the specialty chemical businesses of Olin, which includes (i) the microelectronic chemicals business, (ii) the water chemicals business (which includes, among other things, Water Treatment) and (iii) the performance chemicals business, in each case, as conducted by Olin and its Subsidiaries as of the Distribution Date and as described more fully in the Information Statement; provided, however, that none of the businesses set forth on Schedule 1.01(e) shall constitute an Arch Business.
"Arch Division Employee" shall mean any individual (x) who (i) becomes an active employee of Arch at or following the Distribution Date on its payroll and (ii) at all times prior to the Distribution Date employed by Olin was employed solely as a division employee in the Arch Business and never as an Olin Corporate Employee or (y) who (i) is not employed by Olin or Arch at or following the Distribution Date and (ii) at all times prior to the Distribution Date for the period of time that such individual was employed by Olin, was employed by Olin solely as a division employee in the Arch Business and never as an Olin Corporate Employee.
"Arch Liabilities" shall mean the following Liabilities, in each
case excluding the Excluded Liabilities: (i) all the Liabilities of Arch
and its Subsidiaries under this Agreement and any of the Ancillary
Agreements; (ii) all the Liabilities (other than Liabilities in respect of
(w) Environmental Matters, (x) Pending Litigation Matters, (y) Disability
Matters and (z) Employment Matters) of the parties hereto or their
respective Subsidiaries arising after the Distribution Date out of or in
connection with or otherwise relating to the activities, business,
operations, status, management or conduct before, on or after the
Distribution Date of the Arch Business or the Arch Assets; (iii) all the
Liabilities set forth on the Arch Balance Sheet (or reflected in the notes
thereto), and Liabilities incurred by Olin or Arch or
any of their Affiliates between September 30, 1998 and the Distribution
Date as and to the extent they would have been included on the Arch Balance
Sheet had they been incurred or arisen on or prior to September 30, 1998;
(iv) all Liabilities under the Credit Agreement; (v) all Liabilities
relating to the Pending Litigation Matters set forth on Schedule 1.01(f);
(vi) the Liabilities set forth on Schedule 1.01(g); (vii) the Liabilities
set forth on Schedule 1.01(h); (viii) the Liabilities specifically
allocated to Arch pursuant to the Employee Benefits Agreement; (ix) the
Liabilities in respect of Actions relating to Disability Matters asserted
after the Distribution Date by any former Olin employees whose long-term
disability obligations are assumed by Arch under the Employee Benefits
Agreement; (x) the Liabilities, if any, in respect of Actions relating to
Employment Matters asserted after the Distribution Date involving claims
made by an Arch Division Employee (other than an individual listed in
Schedule 1.01(c)) regarding an action or inaction on the part of another
Arch Division Employee; and (xi) the Liabilities identified as constituting
Arch Liabilities on Schedule 1.01(c).
"Arch Off-Site Disposal Matter" shall mean the disposal, arrangement for disposal or transportation by Olin, its Subsidiaries or toll manufacturers for any of them, prior to the Distribution Date, of Hazardous Materials of the Arch Business at or to a landfill, dump, surface impoundment or other surface location (excluding any location on or at the facilities or properties of Olin or Arch) that, as between Olin and Arch, is being used exclusively by Arch, its Subsidiaries or toll manufacturers (acting in connection with the Arch Business) for any of them at or after the Distribution Date and had been used exclusively in connection with the Arch Business at all times prior to the Distribution Date.
"Arch Product Lines" shall have the meaning assigned to such term on Schedule 1.01(j).
"Arch Properties" shall mean the land, buildings and improvements either owned or leased by Arch or any of its Subsidiaries (including property being used by a person who is a toll manufacturer for Arch or any of its Subsidiaries), in each case immediately following the Distribution Date or which is transferred to Arch or any of its Subsidiaries in connection with the Distribution, other than the Arch Shared Sites and Arch Sites.
"Arch Shared Sites" shall mean the property owned or leased by Arch immediately following the Distribution
Date located at (i) Lake Charles, Louisiana, (ii) Charle ston, Tennessee and (iii) McIntosh, Alabama, in each case, operated in connection with the Arch Business.
"Arch Sites" shall mean (i) the Doe Run plant in Brandenburg, Kentucky, (ii) the B.V. Swords plant in Dublin, Ireland, (iii) the Aqua Chlor HTH plant in Chloorkop, South Africa and (iv) the Biocides plant (including the quarry) in Rochester, New York.
"Articles" shall mean the Amended and Restated Articles of
Incorporation of Arch, substantially in the form attached hereto as Exhibit
A.
"Asset" shall mean any and all assets and properties, tangible or
intangible, real or personal, including the following: (i) cash, notes and
accounts and notes receivable (whether current or non-current); (ii)
certificates of deposit, banker's acceptances, stock, debentures, evidences
of indebtedness, certificates of interest or participation in
profit-sharing agreements, collateral-trust certificates, preorganization
certificates or subscriptions, transferable shares, investment contracts,
voting-trust certificates, fractional undivided interests in oil, gas or
other mineral rights, puts, calls, straddles, options and other securities
of any kind; (iii) intangible property rights, inventions, discoveries,
know-how, United States and foreign patents and patent applications, trade
secrets, confidential information, registered and unregistered trademarks,
service marks, service names, trade styles and trade names and associated
goodwill, statutory, common law and registered copyrights, applications for
any of the foregoing; rights to use the foregoing and other rights in, to
and under the foregoing; (iv) rights under leases, contracts, licenses,
permits, distribution arrange ments, sales and purchase agreements, other
agreements and business arrangements; (v) real estate and buildings and
other improvements thereon; (vi) leasehold improvements, fixtures, trade
fixtures, machinery, equipment (including transportation and office
equipment), tools, dies and furniture; (vii) office supplies, production
supplies, spare parts, other miscellaneous supplies and other tangible
property of any kind; (viii) computer equipment and soft ware; (ix) raw
materials, work-in-process, finished goods, consigned goods and other
inventories; (x) prepayments or prepaid expenses; (xi) claims, causes of
action, choses in action, rights under express or implied warranties,
rights of recovery and rights of setoff of any kind; (xii) the rights to
receive mail, payments on accounts receivable and other communications;
(xiii) lists of customers, records pertaining to customers and accounts,
personnel records,
lists and records pertaining to customers, suppliers and agents, and books, ledgers, files and business records of every kind; (xiv) advertising materials and other printed or written materials; (xv) goodwill as a going concern and other intangible properties; (xvi) employee contracts, including any rights thereunder to restrict an employee from competing in certain respects; and (xvii) licenses and authorizations issued by any governmental authority.
"Assigned Contract" shall mean (x) any Contract that in Olin's sole judgment relates exclusively to the Arch Business ("Exclusive Assigned Contracts") and (y) with respect to any Contract that relates, but does not in Olin's sole judgment relate exclusively, to the Arch Business ("Partial Assigned Contracts"), the portion, if any, of such Partial Assigned Contract that, in Olin's sole judgment, relates to the Arch Business (the "Arch Portion").
"By-laws" shall mean the By-laws of Arch, substantially in the form attached hereto as Exhibit B.
"Charleston Services Agreement" shall mean the Charleston Services Agreement dated as of February 8, 1999, between Olin and Arch.
"Charleston Operating Agreement" shall mean the Operating Agreement - Charleston Steam Generating Facilities dated as of February 8, 1999, between Olin and Arch.
"Chlor-Alkali Supply Agreement" shall mean the Chlor-Alkali Supply Agreement dated as of February 8, 1999, between Olin and Arch.
"Claims Administration" shall mean (i) the processing of claims made under Company Policies and Hunt Policies, including the reporting of claims and occurrences to the appropriate insurance carriers and the collection of the proceeds of such policies, (ii) in the case of the Arch Business, the reporting to Olin of any losses or claims which may cause the per-occurrence deductible or self-insured retention or limits of any Company Policy to be exceeded and (iii) in the case of the Olin Business, the reporting to Arch of any loss or claim asserted by Olin under the Hunt Policies.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and the Treasury regulations promulgated thereunder, including any successor legislation.
"Commission" shall mean the Securities and Exchange Commission.
"Company Policies" shall mean all Policies, current or past, under which Olin or any Subsidiary, Affiliate or predecessor of Olin is a named insured; provided, however, that Company Policies shall not include the Hunt Policies.
"Contract" shall mean a contract, agreement, lease or commitment of Olin or any of its Subsidiaries, in each case, entered into prior to the Distribution Date.
"Covenant Not to Compete Agreement" shall mean the Covenant Not to Compete Agreement dated as of February 8, 1999, between Olin and Arch.
"Credit Agreement" shall mean, collectively, (i) the 364-Day Credit Agreement dated as of January 27, 1999, among Arch, Olin, the Lenders party thereto, Bank of America, National Trust and Savings Association, as Syndication Agent, Wachovia Bank, N.A., as Documentation Agent, The Chase Manhattan Bank, as Administrative Agent and Chase Securities Inc., as Arranger and (ii) the Five-Year Credit Agreement dated as of January 27, 1999 among Arch, Olin, the Lenders party thereto, Bank of America, National Trust and Savings Association, as Syndication Agent, Wachovia Bank, N.A., as Documentation Agent, The Chase Manhattan Bank, as Administrative Agent and Chase Securities Inc., as Arranger.
"Disability Matters" shall mean matters relating to the eligibility, qualification or payment of long-term disability benefits by Olin or its Subsidiaries.
"Distribution" shall have the meaning specified in Section 3.03.
"Distribution Date" shall mean February 8, 1999, or such other date as may hereafter be determined by the Olin Board as the date on which the Distribution shall be deemed effective.
"Distribution Record Date" shall mean February 1, 1999, or such other date as may hereafter be determined by the Olin Board as the record date for the Distribution.
"Employee Benefits Agreement" shall mean the Employee Benefits Allocation Agreement dated as of February 8, 1999, between Olin and Arch.
"Employment Matters" shall mean any and all claims relating to employment discrimination or sexual harassment matters including but not limited to claims of wrongful
discharge or claims of discriminatory treatment based upon any one or combination of the factors of sex, race, religion, sexual orientation, handicap or national origin, arising under federal, state or local law, whether such claims arise due to common law (whether arising in tort or contract) or by constitution, statute or ordinance.
"Environmental Laws" shall mean any and all applicable treaties, laws, regulations, enforceable requirements, binding determinations, orders, decrees, judgments, injunctions, permits, approvals, authorizations, licenses, variances, permissions, notices or binding agreements issued, promulgated or entered into at any time by any Governmental Entity, relating to the environment, preservation or reclamation of, or damage to, natural resources, or to the management, release, threatened release of, or exposure to, Hazardous Materials.
"Environmental Matters" shall mean (i) in connection with any Environmental Law, any noncompliant condition existing at or prior to the Distribution Date of records, permits, filings, notifications, facilities or equipment, (ii) in connection with any Environmental Law, any condition of, or substances, facilities or equipment in or under the soil, surface water or groundwater existing at or prior to the Distribution Date which has required, is requiring or may in the future require investigation, mitigation, remediation, monitoring or cleanup or (iii) Third Party Exposure Claim.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Excluded Liabilities" shall mean (i) any Liabilities related to Assets of Olin and its Subsidiaries that do not constitute Arch Assets (except as otherwise expressly set forth herein), (ii) all Liabilities arising out of, in connection with, or relating to (A) the Olin Sites or the Olin Retained Shared Site Environmental Liabilities, (B) the management or conduct before, on or after the Distribution Date of the Olin Business or (C) the historical and no longer active businesses of Olin and its Subsidiaries and (iii) the Liabilities set forth on Schedule 1.01(i).
"Form 10" shall mean the registration statement on Form 10 filed by Arch with the Commission to effect the registration of the Arch Common Shares under the Exchange Act, as such registration statement may be amended from time to time.
"Hazardous Materials" shall mean all explosive or regulated radioactive materials, hazardous or toxic materials, substances, wastes or chemicals, petroleum (including crude oil or any fraction thereof), asbestos or asbestos containing materials, and all other materials or chemicals regulated pursuant to any Environmental Law.
"Hunt" shall mean Philip A. Hunt Chemical Corporation.
"Hunt Policies" shall mean all Policies issued to Hunt.
"Hydrazine Operating Agreement" shall mean the Operating Agreement - Hydrazine Blending Facility dated as of February 8, 1999, between Olin and Arch.
"Indemnifiable Losses" shall have the meaning specified in
Section 7.01.
"Information Statement" shall mean the Information Statement dated January 22, 1999, sent to the holders of shares of Olin Common Stock in connection with the Distribution, including any amendment or supplement thereto.
"Information Technology Services Agreement" shall mean the Information Technology Services Agreement dated as of February 8, 1999, between Olin and Arch.
"Insured Claims" shall mean those Liabilities that, individually or in the aggregate, are covered within the terms and conditions of any Company Policy or Hunt Policy, whether or not subject to deductibles, uncollect ability or retrospectively-rated premium adjustments, but only to the extent that such Liabilities are within applicable Company Policy or Hunt Policy limits, including aggregates.
"Intellectual Property" shall mean (i) patents (including all reissues, divisions, continuations and extensions thereof), patent licenses and patent applica tions, (ii) trademarks, trademark rights, trademark licenses, trademark registrations, servicemarks, trademark registration applications (filed or unfiled) and trade names and (iii) copyrights and copyright licenses.
"Intellectual Property Transfer and License Agreement" shall mean the Intellectual Property Transfer and License Agreement dated as of February 8, 1999, between Olin and Arch.
"International Transfer Agreements" shall mean those certain International Transfer Agreements each dated as of February 8, 1999, between Olin and Arch, and relating to Brazil, Canada, South Korea and Singapore.
"International Transition Services Agreements" shall mean the Transition Services Agreements-International dated as of February 8, 1999, between Olin or its Subsi diaries on the one hand, and Arch or its Subsidiaries on the other hand.
"Lake Charles Operating Agreement" shall mean the Operating Agreement - Lake Charles Caustic Terminal dated as of February 8, 1999, between Olin and Arch.
"Liabilities" shall mean any and all debts, lia bilities and obligations, absolute or contingent, matured or unmatured, liquidated or unliquidated, accrued or unaccrued, known or unknown, whenever arising, including those debts, liabilities and obligations arising under any law, rule, regulation, Action, threatened Action, order or consent decree of any court, any governmental or other regulatory or administrative agency or commission or any award of any arbitration tribunal, and those arising under any contract, guarantee, commitment or undertaking.
"McIntosh Services Agreement" shall mean the Services Agreement for A50 Plant at McIntosh dated as of February 8, 1999, between Olin and Arch.
"Novation Agreements" shall mean the Novation Agreements dated as of February 8, 1999, among Olin, Arch and the United States.
"NYSE" shall mean The New York Stock Exchange, Inc.
"Olin Board" shall mean the Board of Directors of Olin.
"Olin Business" shall mean the businesses of any division, Subsidiary or investment of Olin (other than the Arch Business) managed or operated prior to the Distribution Date by any such business entity.
"Olin Corporate Employee" shall mean an individual who was at any time, a corporate employee or on the "corporate" payroll of Olin.
"Olin Liabilities" shall mean collectively, (i) all the Liabilities of Olin and its Subsidiaries
(excluding Arch and its Subsidiaries) under this Agreement and any of the Ancillary Agreements, (ii) Excluded Liabilities, (iii) the Liabilities identified as constituting Olin Liabilities on Schedule 1.01(c) and (iv) all the Liabilities (whenever arising whether prior to, at or following the Distribution Date) of the parties hereto or their respective Subsidiaries that do not constitute Arch Liabilities.
"Olin Properties" shall mean all land, buildings and improvements owned or leased by Olin or any of its Subsidiaries (including property being used by a person who is a toll manufacturer for Olin or any of its Subsidiaries) at any time other than the Arch Properties, Arch Shared Sites or Arch Sites.
"Olin Retained Shared Site Environmental Liabilities" shall mean all Liabilities in respect of those Environmental Matters that (i) are known to Olin or any of its Subsidiaries at or prior to the Distribution Date and relate to any Arch Shared Site or (ii) in the case of the Arch Shared Site located in Lake Charles, Louisiana relate to the plant and other assets sold to Bio-Lab, Inc.
"Olin Site" shall mean any site or location that is known to Olin or any of its Subsidiaries at or prior to the Distribution Date to be or have been the subject of any Environmental Matter other than the Arch Sites and Arch Properties.
"Pending Litigation Matters" shall mean actual or threatened litigation, investigations, claims or other legal matters that have been asserted as of the Distribution Date against Olin and/or Arch or the respective Subsidiaries of either of them.
"person" shall mean any natural person, corpora tion, business trust, joint venture, association, company, partnership or government, or any agency or political subdivision thereof.
"Policies" shall mean insurance policies and insurance contracts of any kind (other than life and benefits policies or contracts), including primary, excess and umbrella policies, commercial general liability policies, fiduciary liability, environmental impairment, director and officer, health, automobile, aircraft, property and casualty, workers' compensation and employee dishonesty insurance policies, bonds and self-insurance and captive insurance company arrangements, together with the rights, benefits and privileges thereunder.
"Rights Plan" shall mean the Rights Agreement dated as of January 29, 1999, between Arch and ChaseMellon Shareholder Services, L.L.C., as rights agent, substantially in the form attached hereto as Exhibit C.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Sublease" shall mean the Sublease dated as of February 1, 1999, between Olin and Arch relating to the office space at 501 Merritt 7, Norwalk, Connecticut.
"Subsidiary" shall mean any corporation, partner ship or other entity of which another entity (i) owns, directly or indirectly, ownership interests sufficient to elect a majority of the Board of Directors (or persons performing similar functions) (irrespective of whether at the time any other class or classes of ownership interests of such corporation, partnership or other entity shall or might have such voting power upon the occurrence of any contingency) or (ii) is a general partner or an entity performing similar functions (e.g., a trustee). For all purposes hereof, the term "Subsidiary", when used to refer to Subsidiaries of Olin, shall be deemed to include Arch and its Subsidiaries, unless the context otherwise expressly specifies.
"Tax" shall mean all Federal, state, local and foreign taxes and assessments, including all interest, penalties and additions imposed with respect to such amounts.
"Tax Sharing Agreement" shall mean the Tax Sharing Agreement dated as of February 8, 1999, between Olin and Arch.
"Third Party Exposure Claim" shall mean a written claim by any third party alleging personal injury or prop erty damage from, exposure to, or the release, discharge or migration of, Hazardous Materials.
"Trade Name License Agreement" shall mean the Trade Name and Trademark License Agreement dated as of February 8, 1999, between Olin and Arch.
"Transition Services Agreement" shall mean the Services Agreement dated as of February 8, 1999, between Olin and Arch.
"Water Treatment" shall have the meaning assigned to such term in the Covenant Not to Compete Agreement.
ARTICLE II
Certain Transactions at or Prior to the Distribution; Certain Covenants
SECTION 2.01. Certain Transactions. (a) Contribution and Transfer of Assets to Arch. At or prior to the Distribution Date:
(i) Olin shall contribute to Arch the businesses and business entities that are to comprise the Arch Business (to the extent they are not owned by Arch or any of its Subsidiaries).
(ii) Olin shall, on behalf of itself and its Subsidiaries, transfer to Arch effective as of the Distribution Date all of Olin's and its Subsidiaries' right, title and interest in and to the Arch Assets.
(b) Certain Transfers to Olin. At or prior to the Distribution Date, Arch shall, on behalf of itself and its Subsidiaries, transfer to Olin effective as of the Distribution Date, any Assets owned or held by Arch or its Subsidiaries that do not constitute Arch Assets.
(c) Assumption and Satisfaction of Liabilities. Except as otherwise specifically set forth in any Ancillary Agreement, from and after the Distribution Date, (i) Olin shall, and shall cause its Subsidiaries to, assume, pay, perform and discharge all Olin Liabilities, and (ii) Arch shall, and shall cause its Subsidiaries to, assume, pay, perform and discharge all Arch Liabilities.
(d) Transfer of Agreements; Consent. (i) Olin hereby agrees that at or prior to the Distribution Date or as soon as reasonably practicable thereafter, subject to the limitations set forth in this Section 2.01(d) and the terms of the Ancillary Agreements, it will, and it will cause its Subsidiaries (other than Arch or any of its Subsidiaries) to, assign, transfer and convey to Arch or to one of Arch's designated Subsidiaries all of Olin's and each such Sub sidiary's respective right, title and interest in and to all Exclusive Assigned Contracts. Arch hereby agrees that at or prior to the Distribution Date or as soon as reasonably practicable thereafter, subject to the limitations set forth in this Section 2.01(d) and the terms of the Ancillary Agreements, it will, and will cause its Subsidiaries to, assign, transfer and convey to Olin or to one of Olin's designated Subsidiaries (other than Arch or its Subsidiaries) all of Arch's and each such Subsidiary's
respective right, title and interest in all Contracts that do not constitute Assigned Contracts.
(ii) Subject to the provisions of this Section 2.01(d) and the terms of the Ancillary Agreements, with respect to Partial Assigned Contracts, on or prior to the Distribution Date or as soon as reasonably practicable thereafter (A) Olin shall use reasonable efforts to cause each such Partial Assigned Contract to be divided into separate contracts for each of the Olin Business and the Arch Business or (B) if such a division is not possible, Olin shall cause the Arch Portion of such Partial Assigned Contract to be assigned to Arch, or otherwise to cause the same economic and business terms to govern with respect to such Arch Portion (by subcontract, sublicense or otherwise).
(iii) Notwithstanding anything in this Agreement to the contrary, this Agreement shall not constitute an agree ment to assign any Contract, in whole or in part, or any rights thereunder if the agreement to assign or attempt to assign, without the consent of a third party, would consti tute a breach thereof or in any way adversely affect the rights of the assignee (the "Assignee") thereof. Until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of any party hereto so that the Assignee would not, in fact, receive all such rights, the parties will cooperate with each other in any alternative arrangement designed to provide for the Assignee the benefits of, and to permit the Assignee to assume liabilities under, any such Contract. The parties hereto shall use commercially reasonable efforts to obtain required consents to assignment of Contracts hereunder.
(e) Stock Issuance to Olin. At or prior to the Distribution Date, Arch shall issue to Olin a whole number of newly issued, fully paid and non-assessable Arch Common Shares, in exchange for the contribution of the Arch Business and the Arch Assets, required to effect the Distribution.
(f) Charter; By-Laws; Rights Plan. At or prior to the Distribution Date, all necessary action shall have been taken to provide for the adoption by Arch of the Articles, the By-laws and the Rights Plan.
(g) Directors. At or prior to the Distribution Date, (i) Olin, as the sole shareholder of Arch, shall have taken all necessary action to elect, or cause to be elected, to the Board of Directors of Arch the individuals identified in the Information Statement as directors of Arch, such
elections to be effective on or prior to 11:00 p.m. on February 7, 1999 and
(ii) once elected, the Board of Directors of Arch shall select such other
individuals to be designated as directors of Arch as the Board of Directors
of Arch shall decide.
(h) Registration and Listing. Prior to the Distribution Date:
(i) Olin and Arch shall prepare, and Arch shall file with the Commission, the Form 10, which includes or incorporates by reference the Information Statement. Olin and Arch shall use reasonable efforts to cause the Form 10 to become effective under the Exchange Act as promptly as reasonably practicable.
(ii) Olin and Arch shall prepare, and Arch shall file and seek to make effective, an application to permit listing of the Arch Common Shares on the NYSE, subject to official notice of issuance.
(iii) Olin and Arch shall prepare, and Olin shall mail to the holders of shares of Olin Common Stock on the Distribution Record Date, the Information State ment, which shall set forth appropriate disclosure concerning Arch, the Distribution and other matters.
(iv) Olin and Arch shall use reasonable efforts to take all such action as may be necessary or appropriate under the state securities or blue sky laws in connec tion with the transactions contemplated by this Agreement and the Ancillary Agreements.
(v) Olin and Arch shall cooperate in preparing, filing with the Commission and causing to become effective any registration statements or amendments thereof which are necessary or appropriate in order to effect the transactions contemplated hereby or to reflect the establishment of, or amendments to, any employee benefit and other plans contemplated by the Employee Benefits Agreement requiring registration under the Securities Act.
(i) Certain Licenses and Permits. At or prior to the Distribution Date or as soon as reasonably practicable thereafter, all transferrable licenses, permits and authori zations issued by governmental or regulatory entities which relate to the Arch Business but which are held in the name of Olin or any of its Subsidiaries (other than Arch or any of its Subsidiaries), or any of their respective employees, officers, directors, stockholders, agents, or otherwise, on
behalf of Arch (or its Subsidiaries) shall be duly and validly transferred by Olin to Arch (or its Subsidiaries).
(j) Lease Amendments. At or prior to the Distribution Date, amendments shall be executed to each of the leases to which Olin is a party and which provide for the lease of real or personal property representing Arch Assets or relating to the Arch Business which amendments will provide for the substitution of Arch for Olin as lessee or lessor, as the case may be, and to the extent agreeable to the other party to the lease excuse Olin from any further Liabilities or responsibilities with respect thereto.
(k) Other Transactions. At or prior to the Distribution Date, Olin and Arch shall have consummated those other transactions in connection with the Distribution that are contemplated by the Information Statement and not specifically referred to in subparagraphs (a)-(j) above.
SECTION 2.02. Financing. Each of the parties hereto shall take all actions necessary to arrange for the Credit Agreement and to cause Arch to assume Olin's rights and obligations under the Credit Agreement immediately prior to the Distribution Date, provided that Olin shall have no obligation to guarantee or otherwise provide credit support or enhancement for the obligations of Arch under the Credit Agreement.
SECTION 2.03. Operations in Ordinary Course. Each of Olin and Arch agrees that, except as otherwise provided in any Ancillary Agreement or this Agreement, during the period from the date of this Agreement through the Distribution Date, it will, and will cause their respective Subsidiaries during such period to, conduct its business in a manner substantially consistent with current and past operating practices and in the ordinary course, including with respect to the payment and administration of accounts payable and the administration of accounts receivable, the purchase of capital Assets and equipment and the management of inventories.
SECTION 2.04. Capital Structure. Each of Olin and Arch agrees to use commercially reasonable efforts to achieve both an allocation of consolidated indebtedness of Olin and a capital structure of Arch which substantially reflects the capital structure after the Distribution of Arch set forth in the Information Statement under the heading "Capitalization".
SECTION 2.05. Resignations. Olin shall cause all its directors, officers and employees to resign, effective as of February 7, 1999, from all positions as officers of Arch or as officers or directors of any Subsidiary of Arch in which they serve. Olin shall also cause the directors of Olin referred to in the Information Statement to resign as directors of Olin, effective as of February 7, 1999, Arch shall cause all its employees to resign, effective as of February 7, 1999, from all positions as officers of Olin or as officers or directors of any Subsidiary of Olin (other than Arch or its Subsidiaries) in which they serve.
SECTION 2.06. Further Assurances. In case at any time after the Distribution Date any further action is reasonably necessary or desirable to carry out the purposes of this Agreement and the Ancillary Agreements, the officers of each party to this Agreement shall take all such necessary action. Without limiting the foregoing, Olin and Arch shall use commercially reasonable efforts to obtain all consents and approvals, to enter into all amendatory agree ments and to make all filings and applications that may be required for the consummation of the transactions contemplated by this Agreement and the Ancillary Agreements, including all applicable governmental and regulatory filings and novations.
SECTION 2.07. No Representations or Warranties. Each of the parties hereto understands and agrees that, except as otherwise expressly provided herein or in any Ancillary Agreement, no party hereto is, in this Agreement, in any Ancillary Agreement or in any other agreement or document contemplated by this Agreement or otherwise, making any representation or warranty whatsoever, including as to title, value or legal sufficiency. It is also agreed and understood that all Assets either transferred to or retained by the parties, as the case may be, shall be "as is, where is" and that (subject to Section 2.06) the party to which such Assets are to be transferred hereunder shall bear the economic and legal risk that any conveyances of such Assets shall prove to be insufficient or that such party's or any of its Subsidiaries' title to any such Assets shall be other than good and marketable and free from encumbrances. Similarly, each party hereto understands and agrees that no party hereto is, in this Agreement, in any Ancillary Agree ment or in any other agreement or document contemplated by this Agreement or otherwise, representing or warranting in any way that the obtaining of any consents or approvals, the execution and delivery of any amendatory agreements and the making of any filings or applications contemplated by this Agreement will satisfy the provisions of any or all applicable agreements or the requirements of any or all appli-
cable laws or judgments, it being agreed and understood that the party to which any Assets are transferred shall bear the economic and legal risk that any necessary consents or approvals are not obtained or that any requirements of laws or judgments are not complied with.
SECTION 2.08. Elimination of Guarantees. Except as otherwise specified in any Ancillary Agreement, Olin and Arch shall use their commercially reasonable efforts to have, on or prior to the Distribution Date, or as soon as practicable thereafter, Olin and each of its Subsidiaries (other than Arch or its Subsidiaries) removed as guarantor of or obligor for any Arch Liability or Liabilities, including in respect of those guarantees set forth on Schedule 2.08. To the extent that Olin or any of its Subsidiaries (other than Arch or its Subsidiaries) cannot be removed as guarantor of or obligor for any such Arch Liability or Liabilities, Arch agrees that, notwithstanding any contrary provision contained in any Novation Agreement referred to in Schedule 2.08, until such Arch Liability or Liabilities shall have been discharged in full, Arch will take no action, and will not permit any of its Subsidiaries to take any action, which will have the effect of increasing the contingent liability or exposure of Olin or any of its Subsidiaries (other than Arch or its Subsidiaries) with respect to such Arch Liability or Liabilities without Olin's prior written consent; provided, however, that with respect to any guarantee arising in connection with any Novation Agreement referred to in Schedule 2.08, Arch may modify (but not extend) the U.S. Government contracts relating to such Novation Agreements without Olin's prior written consent provided such modification is made in good faith and is commercially reasonable and does not unreasonably increase Olin's contingent liability or risk with respect thereto under such Novation Agreement taking into account the facts and circumstances at the time of the modification.
SECTION 2.09 Intercompany Accounts. All intercompany receivables, payables and loans existing immediately prior to the Distribution between Olin and its Subsidiaries (other than Arch or its Subsidiaries), on the one hand, and Arch and its Subsidiaries, on the other hand, shall be deemed canceled, settled and discharged immediately prior to the Distribution.
SECTION 2.10. Transfers Not Effected Prior to Distribution Date; Transfers Deemed Effective as of Distribution Date. To the extent that any transfers contemplated by this Article II shall not have been consummated at or prior to the Distribution Date, the parties shall cooperate to effect such transfers as promptly
following the Distribution Date as shall be practicable. Nothing herein shall be deemed to require the transfer of any Assets or the assumption of any Liabilities which by their terms or operation of law cannot be transferred; provided, however, that the parties hereto and their respective Subsidiaries shall cooperate to seek to obtain any necessary consents or approvals for the transfer of all Assets and Liabilities contemplated to be transferred pursuant to this Article II. In the event that any such transfer of Assets or Liabilities has not been consummated, from and after the Distribution Date the party retaining such Asset or Liability shall hold such Asset in trust for the use and benefit of the party entitled thereto (at the expense of the party entitled thereto) or retain such Liability for the account of the party by whom such Liability is to be assumed pursuant hereto, as the case may be, and take such other action as may be reasonably requested by the party to whom such Asset is to be transferred, or by whom such Liability is to be assumed, as the case may be, in order to place such party, insofar as is reasonably possible, in the same position as would have existed had such Asset or Liability been transferred as contemplated hereby. As and when any such Asset or Liability becomes transferable, such transfer shall be effected forthwith. The parties agree that, as of the Distribution Date, each party hereto shall be deemed to have acquired complete and sole beneficial ownership over all of the Assets, together with all rights, powers and privileges incident thereto, and shall be deemed to have assumed in accordance with the terms of this Agreement all of the Liabilities, and all duties, obligations and responsibili ties incident thereto, which such party is entitled to acquire or required to assume pursuant to the terms of this Agreement.
SECTION 2.11. Ancillary Agreements. At or prior to the Distribution Date, each of Olin and Arch shall enter into, and/or (where applicable) shall cause their respective Subsidiaries to enter into, the Ancillary Agreements and any other agreements in respect of the Distribution reasonably necessary or appropriate in connection with the transactions contemplated hereby and thereby.
ARTICLE III
The Distribution
SECTION 3.01. Distribution Record Date and Distribution Date. Subject to the satisfaction of the conditions set forth in Section 8.01(a), the Olin Board
shall, in its sole discretion, establish the Distribution Record Date and the Distribution Date and any appropriate procedures in connection with the Distribution.
SECTION 3.02. The Agent. Prior to the Distribu tion Date, Olin shall enter into an agreement with the Agent providing for, among other things, the Distribution in accordance with this Article III.
SECTION 3.03. The Distribution. On or prior to the Distribution Date, Olin shall deliver to the Agent, for the benefit of holders of record of shares of Olin Common Stock, one or more stock certificates representing all of the outstanding Arch Common Shares issued to Olin by Arch pursuant to Section 2.01(e), and shall instruct the Agent to distribute through direct registration (i.e., book-entry transfer), on or as soon as practicable following the Distribution Date, such Arch Common Shares to holders of record of shares of Olin Common Stock on the Distribution Record Date on the basis of one Arch Common Share for every two shares of Olin Common Stock (the "Distribution"). The Distribution shall be effective at 12:01 a.m. on the Distribution Date. Olin and Arch shall provide the Agent with all information and documents necessary to effect the direct registration of Arch Common Shares.
SECTION 3.04. Contract Provisions. Following the Distribution Date, Arch agrees to be bound by certain provisions of the Contracts set forth in Schedule 3.04 to the extent such provisions are applicable to Arch.
ARTICLE IV
Access to Information
SECTION 4.01. Provision of Corporate Records. (a) After the Distribution Date, upon the prior written request by Arch for specific and identified agree ments, documents, books, records or files, including computer files, microfiche, tape recordings and photographs (collectively, "Records"), relating to or affecting Arch, Olin shall arrange, as soon as reasonably practicable following the receipt of such request, for the provision of appropriate copies of such Records (or the originals thereof if the party making the request has a reasonable need for such originals) in the possession of any member of Olin or any of its Subsidiaries, but only to the extent such items are not already in the possession of the requesting party.
(b) After the Distribution Date, upon the prior written request by Olin for specific and identified Records relating to or affecting Olin, Arch shall arrange, as soon as reasonably practicable following the receipt of such request, for the provision of appropriate copies of such Records (or the originals thereof if the party making the request has a reasonable need for such originals) in the possession of any member of Arch or any of its Subsidiaries, but only to the extent such items are not already in the possession of the requesting party.
SECTION 4.02. Access to Information. From and after the Distribution Date, Olin and Arch shall afford to the other and its authorized accountants, counsel and other designated representatives (including governmental repre sentatives and auditors in connection with governmental claims or audits) reasonable access during normal business hours, subject to appropriate restrictions for classified, privileged or confidential information, to the personnel, properties, books and records of such party and its Subsidiaries insofar as such access is reasonably required by the other party.
SECTION 4.03. Reimbursement; Records Retention. (a) Except to the extent otherwise contemplated by any Ancillary Agreement, a party providing Records, access to information or witness services, as the case may be, to the other party under this Article IV shall be entitled to receive from the recipient, upon the presentation of invoices therefor, payments for such out-of-pocket amounts, relating to supplies, disbursements and other out-of-pocket expenses as may be reasonably incurred in providing such Records, access to information or witness services, as the case may be.
(b) The parties hereto shall comply with such document retention policies as shall be established and agreed to in writing by their respective authorized officers on or prior to the Distribution Date in respect of Records and related matters.
SECTION 4.04. Witness Services. At all times from and after the Distribution Date, each of Olin and Arch shall use commercially reasonable efforts to make available to each other, upon written request, its and its Subsidiaries' officers, directors, employees and agents as witnesses to the extent that (i) such persons may reasonably be required in connection with the prosecution or defense of any Action in which the requesting party may from time to time be involved and (ii) there is no conflict in the Action between the requesting party and itself. The employing
party agrees that such witness shall be made available to the requesting party upon reasonable notice to the same extent that such employing party would have made such witness available if the Distribution had not occurred.
SECTION 4.05. Confidentiality. Each of Olin and its Subsidiaries and Arch and its Subsidiaries shall not use or permit the use of (without the prior written consent of the other) and shall hold, and shall cause its consultants and advisors to hold, in strict confidence, all information concerning the other parties in its possession, its custody or under its control (except to the extent that (A) such information has been in the public domain or becomes part of the public domain through no fault of such party, (B) such information has been later lawfully acquired from other sources by such party without an obligation of confidence, (C) this Agreement or any other Ancillary Agreement or any other agreement entered into pursuant hereto permits the use or disclosure of such information, (D) such information is requested by the Commission (i) to be provided supple mentally to the Commission or (ii) to be provided in any document filed with the Commission, provided, that in the case of this clause (ii), the party providing such informa tion to the Commission shall first consult with the other party prior to, but shall not be prohibited from making, such disclosure or (E) such information is independently developed by such party without reference to such informa tion) to the extent such information (x) relates to the period up to the Distribution Date, (y) relates to any Ancillary Agreement or (z) is obtained in the course of performing services for the other party pursuant to any Ancillary Agreement, and each party shall not (without the prior written consent of the other) otherwise release or disclose such information to any other person, except such party's auditors and attorneys, unless compelled to disclose such information by judicial or administrative process or unless such disclosure is required by law and such party has used commercially reasonable efforts to consult with the other affected party or parties prior to such disclosure. To the extent that a party hereto is compelled by judicial or administrative process to disclose such information under circumstances in which any evidentiary privilege would be available, such party agrees to assert such privilege in good faith prior to making such disclosure. Each party hereto agrees to consult with the other party in connection with any such judicial or administrative process, including in determining whether any privilege is available, and further agrees to allow such party and its counsel to participate in any hearing or other proceeding (including any appeal of an initial order to disclose) in respect of such disclosure and assertion of privilege. Each of Olin
and Arch intends that the transactions contemplated hereby and by the Ancillary Agreements and any transfer of information in connection therewith shall not operate as a waiver of any potentially applicable privilege.
ARTICLE V
Dispute Resolution
SECTION 5.01. Dispute Resolution. (a) In the event of a controversy, dispute or claim arising out of, in connection with, or in relation to the interpretation, performance, nonperformance, validity or breach of this Agreement or otherwise arising out of, or in any way related to this Agreement, including any claim based on contract, tort, statute or constitution (collectively, "Agreement Disputes"), the General Counsels (or their designees) of the relevant parties shall negotiate, commencing within 30 days of the occurrence of such Agreement Dispute, in good faith for a reasonable period of time to settle such Agreement Dispute.
(b) If after such reasonable period such General Counsels (or their designees) are unable to settle such Agreement Dispute (and in any event after 60 days have elapsed from the time the relevant parties began such negotiations), such Agreement Dispute shall be determined, at the request of any relevant party, by arbitration conducted in New York City, before and in accordance with the then-existing Rules for Commercial Arbitration of the American Arbitration Association (the "Rules"), and any judgment or award rendered by the arbitrator shall be final, binding and nonappealable (except upon grounds specified in 9 U.S.C. ss.10(a) as in effect on the date hereof), and judg ment may be entered by any state or Federal court having jurisdiction thereof in accordance with Section 8.21 hereof. Unless the arbitrator otherwise determines, the pre-trial discovery of the then-existing Federal Rules of Civil Procedure and the then-existing Rules 46 and 47 of the Civil Rules for the United States District Court for the Southern District of New York shall apply to any arbitration here under. Any controversy concerning whether an Agreement Dispute is an arbitrable Agreement Dispute, whether arbitra tion has been waived, whether an assignee of this Agreement is bound to arbitrate, or as to the interpretation of enforceability of this Article V shall be determined by the arbitrator. The arbitrator shall be a retired or former judge of any United States District Court or Court of Appeals or such other qualified person as the relevant parties may agree to designate, provided such individual has
had substantial professional experience with regard to settling commercial disputes. The parties intend that the provisions to arbitrate set forth herein be valid, enforceable and irrevocable. The designation of a situs or a governing law for this Agreement or the arbitration shall not be deemed an election to preclude application of the Federal Arbitration Act, if it would be applicable. In his award the arbitrator shall allocate, in his discretion, among the parties to the arbitration all costs of the arbitration, including the fees and expenses of the arbitrator and reasonable attorneys' fees, costs and expert witness expenses of the parties. The undersigned agree to comply with any award made in any such arbitration pro ceedings that has become final in accordance with the Rules and agree to the entry of a judgment in any jurisdiction upon any award rendered in such proceedings becoming final under the Rules. The arbitrator shall be entitled, if appropriate, to award any remedy in such proceedings, including monetary damages, specific performance and all other forms of legal and equitable relief; provided, however, the arbitrator shall not be entitled to award punitive damages.
ARTICLE VI
Insurance
SECTION 6.01. Coverage. (a) As of the Distribution Date, coverage of Arch and its Subsidiaries shall cease under current Company Policies, except as provided in this Article VI. From and after the Distribution Date, Arch and its Subsidiaries will be responsible for obtaining and maintaining insurance coverages for their own account. To the extent that Arch bears or incurs Arch Liabilities arising from the activities of Olin or its Subsidiaries prior to the Distribution Date, and which Arch Liabilities are covered by Company Policies, it is the intention of the parties that, without increasing or expanding the risks assumed by the insurer, Arch will have the benefit of such insurance coverage after the Distribution Date. No assignment pursuant to Section 6.02 is intended to increase the liability of any insurer under a Company Policy, and Olin shall be deemed to assign only such coverage as would have been available to Olin in respect of the Arch Business if the Distribution had not occurred.
(b) To the extent that Olin bears or incurs Olin Liabilities arising from the activities of Hunt prior to the Distribution Date, and which Olin Liabilities are covered by Hunt Policies, it is the intention of the parties that,
without increasing or expanding the risks assumed by the insurer, Olin will have the benefit of such insurance coverage after the Distribution Date. No assignment pursuant to Section 6.02 is intended to increase the liability of any insurer under a Hunt Policy, and Arch shall be deemed to assign only such coverage as would have been available in respect of the activities of Hunt if the Distribution had not occurred.
SECTION 6.02. Claims Based Upon Pre-Distribution Date Injury;
Waiver. (a) If (i) prior to the Distribution Date, any person has asserted
a claim or instituted a suit, action or proceeding against Olin or Arch, or
(ii) subse quent to the Distribution Date, any person shall assert a claim
or institute a suit, action or proceeding against Arch or any of its
Subsidiaries, in either case, with respect to any injury, loss, liability,
damage or expense incurred or claimed to have been incurred prior to the
Distribution Date in the course of or in connection with the conduct of the
Arch Business and which injury, loss, liability, damage or expense may
constitute an insured or insurable occurrence under one or more Company
Policies, Olin shall be deemed, without need of further documentation, to
assign to Arch or any of its Subsidiaries an interest in the relevant
Company Policies (unless such assignment would render Olin's coverage for
such occurrence thereunder void), subject to any limitations or obligations
of Arch contemplated by this Article VI, if necessary, and then only to the
extent necessary, to convey to Arch or any of its Subsidiaries rights of
indemnity and the right to be defended by or at the expense of the insurer,
with respect to any such claim, suit, action, proceeding, injury, loss,
liability, damage or expense; provided, however, that, with respect to
Company Policies for which Arch has payment obligations pursuant to Section
6.05 or otherwise, Arch and its Subsidiaries shall only have the rights set
forth under this Section 6.02(a) with respect to such Company Policies if
such payment obli gations have been satisfied by Arch.
(b) If (i) prior to the Distribution Date, any person has asserted a claim or instituted a suit, action or proceeding against Olin, or (ii) subsequent to the Distri bution Date, any person shall assert a claim or institute a suit, action or proceeding against Olin, in either case, with respect to any injury, loss, liability, damage or expense incurred or claimed to have been incurred prior to the Distribution Date in the course of or in connection with the activities of Hunt and which injury, loss, liability, damage or expense may constitute an insured or insurable occurrence under one or more Hunt Policies, Arch shall be deemed, without need or further documentation, to assign to
Olin an interest in the relevant Hunt Policies (unless such assignment
would render Arch's coverage for such occurrence thereunder void), subject
to any limitations or obligations of Olin contemplated by this Article VI,
if necessary, and then only to the extent necessary, to convey to Olin
rights of indemnity and the right to be defended by or at the expense of
the insurer, with respect to any such claim, suit, action, proceeding,
injury, loss, liability, damage or expense; provided, however, that, with
respect to Hunt Policies for which Olin has payment obligations pursuant to
Section 6.05 or otherwise, Olin shall only have the rights set forth under
this Section 6.02(b) with respect to such Hunt Policies if such payment
obligations have been satis fied by Olin.
(c) Olin shall at all times retain the Company Policies, together
with the rights, benefits and privileges thereunder, including the right to
invade or exhaust any Company Policy by submission of claims, settlement or
otherwise; provided, that the retention of the Company Policies by Olin is
not intended to limit, inhibit or preclude any right granted pursuant to
Section 6.02(a), and provided further that Section 6.02(a) is not intended
to limit, inhibit or preclude any rights, benefits or privi leges Olin may
have under Company Policies. Arch hereby specifically agrees that Olin, in
its sole discretion, may at any time and without the consent of Arch or any
of its Subsidiaries, grant a release, given in good faith, to any insurance
carrier absolving such carrier from further liability to Arch pursuant to
any Company Policy, only in respect of Litigated Arch Liabilities (as
defined below). Olin shall notify Arch of the terms and conditions of any
such release prior to its execution. Any release by Olin of coverage
obligations under any Company Policy in respect of Arch Liabilities other
than or in addition to those in respect of Litigated Arch Liabilities shall
require the written consent of Arch, which consent shall not be
unreasonably withheld.
(d) Arch shall at all times retain the Hunt Policies, together
with the rights, benefits and privileges thereunder, including the right to
invade or exhaust any Hunt Policy by submission of claims, settlement or
other wise; provided, that the retention of the Hunt Policies by Arch is
not intended to limit, inhibit or preclude any right granted pursuant to
Section 6.02(b), and provided further that Section 6.02(b) is not intended
to limit, inhibit or preclude any rights, benefits or privileges that Arch
may have under the Hunt Policies. Arch hereby agrees that Olin, in its sole
discretion, may at any time and without the consent of Arch grant a
release, given in good faith, to any
insurance carrier absolving such carrier from further liability to Arch pursuant to any Hunt Policy only in respect of Litigated Arch Liabilities. Olin shall notify Arch of the terms and conditions of any such release prior to its execution. Any release by Arch of coverage obliga tions under any Hunt Policy in respect of Olin Liabilities shall require the written consent of Olin, which consent shall not be unreasonably withheld.
SECTION 6.03. Administration. Except as provided in the third sentence of this Section 6.03, from and after the Distribution Date, Olin shall be responsible for Claims Administration with respect to Olin Liabilities and Arch or a Subsidiary of Arch, as appropriate, shall be responsible for Claims Administration with respect to Arch Liabilities. Except as provided in the third sentence of this Section 6.03, Olin hereby appoints Arch as its agent and attorney in fact to perform Claims Administration under Company Policies with respect to claims against Olin which are or may give rise to Arch Liabilities, and Arch hereby appoints Olin as its agent and attorney in fact to perform Claims Administration under Hunt Policies with respect to claims against Arch or Hunt which are or may give rise to Olin Liabilities. Notwithstanding the foregoing, Olin shall be responsible for Claims Administration with respect to Arch Liabilities with respect to which Olin is engaged in coverage litigation, as of the Distribution Date, related to environmental remediation, and with respect to Arch Liabilities related to environmental remediation which become known after the Distribution Date, and which Olin shall add to said coverage litigation, if then still pending ("Litigated Arch Liabilities").
SECTION 6.04. Insurance Proceeds. Proceeds received with respect to claims made under Company Policies or Hunt Policies shall be paid to Olin with respect to Olin Liabilities and to Arch with respect to Arch Liabilities; provided, that proceeds received with respect to Litigated Arch Liabilities shall be allocated between Olin and Arch pro rata based on the remediation related amounts actually expended by the parties in connection therewith.
SECTION 6.05. Retrospectively Rated Policies. From and after the Distribution Date, any additional premiums payable or rebates of premiums previously paid in respect of any retrospectively rated Company Policy shall be paid or collected by Olin. Olin shall be reimbursed by Arch, or shall distribute to Arch, amounts equal to the portion of any such additional premium or rebate, as applicable, which relates to the Arch Business. From and after the Distribution Date, any additional premiums payable
or rebates of premiums previously paid in respect of any retrospectively rated Hunt Policy shall be paid or collected by Arch. Arch shall be reimbursed by Olin, or shall distri bute to Olin, amounts equal to the portion of any such additional premium or rebate, as applicable, which do not relate to the Arch Business.
SECTION 6.06. Agreement for Waiver of Conflict and Shared Defense. In the event that Insured Claims of more than one of the parties hereto exist relating to the same occurrence, the parties shall jointly defend and waive any conflict of interest necessary to the conduct of the joint defense. Nothing in this Section 6.06 shall be construed to limit or otherwise alter in any way the obliga tions of the parties to this Agreement, including those created by this Agreement, by operation of law or otherwise.
SECTION 6.07. Cooperation. The parties hereto agree to use their commercially reasonable efforts to cooperate with respect to the various insurance matters contemplated by this Agreement. If the product aggregates in the Company Policies or the Hunt Policies become exhausted, the parties agree to share the losses which otherwise would have been reimbursed by such Policies, but for the exhaustion of such product aggregates, on terms and in proportions that are equitable under the circumstances.
ARTICLE VII
Indemnification
SECTION 7.01. Indemnification. (a) Arch shall indemnify, defend and hold harmless Olin, each Affiliate of Olin and each of their respective directors, officers, employees and agents, and each of the heirs, successors and assigns of any of the foregoing (the "Olin Indemnitees") from and against all claims, damages, losses, liabilities, fines, penalties, costs and expenses (including without limitation reasonable attorneys' fees and disbursements) (collectively, "Indemnifiable Losses") of the Olin Indemnitees arising out of, associated with, or resulting from the Arch Liabilities (including without limitation the failure or alleged failure by Arch to pay, perform or otherwise discharge such Arch Liabilities in accordance with their terms), whether such Indemnifiable Losses relate to or arise from events, occurrences, actions, omissions, facts or circumstances occurring or existing, or whether such Indemnifiable Losses are asserted, before, on or after the Distribution Date.
(b) Olin shall indemnify, defend and hold harmless Arch, each Affiliate of Arch and each of their respective directors, officers, employees and agents, and each of the heirs, successors and assigns of any of the foregoing (the "Arch Indemnitees") from and against all Indemnifiable Losses of the Arch Indemnitees arising out of, associated with, or resulting from the Olin Liabilities (including without limitation the failure or alleged failure by Olin to pay, perform or otherwise discharge such Olin Liabilities in accordance with their terms), whether such Indemnifiable Losses relate to or arise from events, occurrences, actions, omissions, facts or circumstances occurring or existing, or whether such Indemnifiable Losses are asserted, before, on or after the Distribution Date.
SECTION 7.02. Insurance Matters. The amount which any indemnifying party (an "Indemnifying Party") is or may be required to pay to any indemnified party (an "Indemnified Party") under this Article VII shall be reduced (including without limitation retroactively) by any proceeds of insurance policies or other amounts actually recovered by or on behalf of such Indemnified Party in reduction of the related Indemnifiable Loss. If an Indemnified Party shall have received the payment (an "Indemnity Payment") required by this Agreement from an Indemnifying Party in respect of any Indemnifiable Loss and shall subsequently actually receive proceeds of insurance policies or other amounts in respect of such Indemnifiable Loss, then such Indemnified Party shall pay to such Indemnifying Party a sum equal to the amount actually received (up to but not in excess of the amount of any Indemnity Payment made hereunder). An insurer who would otherwise be obligated to pay any claim shall not be relieved of the responsibility with respect thereto, or, solely by virtue of the indemnification provisions of this Article VII, or have any subrogation rights with respect thereto, it being expressly understood and agreed that no insurer or any other third party shall be entitled to a benefit they would not otherwise be entitled to receive in the absence of the indemnification provisions hereof by virtue of the indemnification provisions hereof.
SECTION 7.03. Procedures for Indemnification. (a) Pending Claims.
(i) On the Distribution Date, Arch shall assume (or shall cause one of its
wholly owned Subsidiaries to assume) (A) the prosecution of all claims of
Arch and (B) the defense against all Pending Litigation Matters, in each
case, that are listed on Schedule 1.01(f).
(ii) Arch shall be responsible for attorneys' fees, disbursements and other costs related to the claims set forth in Section 7.03(a)(i) only as and to the extent
that such costs are accrued or incurred subsequent to the Distribution Date, and shall not be responsible for any of such costs to the extent accrued or incurred on or prior to the Distribution Date.
(b) Third Party Claims. (i) If a claim or demand is made against an Indemnified Party by any person who is not a party to this Agreement (a "Third Party Claim") as to which such Indemnified Party is entitled to indemnification pursuant to this Agreement, such Indemnified Party shall notify the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim promptly (and in any event within 15 business days) after receipt by such Indemnified Party of written notice of the Third Party Claim; provided, however, that failure to give such notification shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure (except that the Indemnifying Party shall not be liable for any expenses incurred during the period in which the Indemnified Party failed to give such notice). Thereafter, the Indemnified Party shall deliver to the Indemnifying Party, promptly (and in any event within 15 business days) after the Indemnified Party's receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim.
(ii) If a Third Party Claim is made against an Indemnified Party, the Indemnifying Party shall be entitled to participate in the defense thereof and, if it so chooses and acknowledges in writing its obligation to indemnify the Indemnified Party therefor, to assume the defense thereof with counsel selected by the Indemnifying Party; provided, however, that such counsel is not reasonably objected to by the Indemnified Party. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party shall not be liable to the Indemnified Party for legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof. If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indem nifying Party, it being understood that the Indemnifying Party shall control such defense. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has failed to assume the defense thereof (other than during the period prior to the time the Indemnified Party shall have given notice of the Third Party Claim as provided above). If the Indemnifying
Party so elects to assume the defense of any Third Party Claim, the Indemnified Party shall cooperate with the Indemnifying Party in the defense or prosecution thereof.
(iii) If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party for a Third Party Claim, then in no event will the Indemnified Party admit any liability with respect to, or settle, compromise or discharge, any Third Party Claim without the Indemnifying Party's prior written consent; provided, however, that the Indemnified Party shall have the right to settle, compromise or discharge such Third Party Claim without the consent of the Indemnifying Party if the Indemnified Party releases the Indemnifying Party from its indemnification obligation hereunder with respect to such Third Party Claim and such settlement, compromise or discharge would not otherwise adversely affect the Indem nifying Party. If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party for a Third Party Claim, the Indemnified Party will agree to any settlement, compromise or discharge of a Third Party Claim that the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim and releases the Indemnified Party completely in connection with such Third Party Claim and that would not otherwise adversely affect the Indemnified Party; provided, however, that the Indemnified Party may refuse to agree to any such settlement, compromise or discharge if the Indemnified Party agrees that the Indemnifying Party's indemnification obligation with respect to such Third Party Claim shall not exceed the amount that would be required to be paid by or on behalf of the Indemnifying Party in connection with such settlement, compromise or discharge.
(iv) Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the fees and expenses of counsel incurred by the Indemnified Party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnified Party which the Indemnified Party reasonably determines, after conferring with its counsel, cannot be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indem nifying Party shall be entitled to assume the defense of the portion relating to money damages.
SECTION 7.04 Indemnification Payments. Indemnification required by this Agreement, shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or Indemnifiable Loss is incurred.
SECTION 7.05 Other Adjustments. (a) The amount of any indemnification obligation with respect to any Third Party Claim ("Indemnity Obligation") shall be (x) increased to take into account any net tax cost actually incurred by the Indemnified Party arising from any payments received from the Indemnifying Party (grossed up for such increase) and (y) reduced to take into account any net tax benefit actually realized by the Indemnified Party arising from the incurrence or payment of any such Indemnity Obligation. In computing the amount of such tax cost or tax benefit, the Indemnified Party shall be deemed to recognize all other items of income, gain, loss, deduction or credit before recognizing any item arising from the receipt of any payment with respect to an Indemnity Obligation or the incurrence or payment of any Indemnity Obligation.
(b) In addition to any adjustments required pursuant to Section
7.02 hereof or clause (a) of this Section 7.05, and subject to such clause
(a), if the amount of any Indemnity Obligation shall, at any time
subsequent to the payment required by this Agreement, be reduced by
recovery, settlement or otherwise, the amount of such reduction, less any
expenses incurred in connection therewith, shall promptly be repaid by the
Indemnified Party to the Indemnifying Party up to the aggregate amount of
any payments received from such Indemnifying Party pursuant to this
Agreement in respect of such Indemnity Obligation.
SECTION 7.06. Consolidation, Merger, Transfer, or Lease. Neither Party shall consolidate with or merge into any other person, or convey, transfer or lease its properties and assets substantially as an entirety to any other person unless:
(a) The person formed by such consolidation or into which said Party is merged or the person which acquires by conveyance or transfer, or which leases the properties and assets of said Party substantially as an entirely shall (i) be a corporation, (ii) be organized and validly existing under the laws of the United States of America, any State thereof or the District of Columbia and (iii) expressly assume, by an instrument satisfactory to the other Party, each and every obligation of said Party to be performed or observed hereunder; and
(b) Said Party shall have delivered to the other Party a Certificate executed by its Chief Executive Officer and Chief Financial Officer stating that such consolidation, merger, conveyance, transfer or lease complies with this Section 7.06 and that all conditions precedent herein relating to such transaction have been complied with.
SECTION 7.07. Survival. All the indemnity obligations under this Article VII shall survive indefinitely.
ARTICLE VIII
Miscellaneous
SECTION 8.01. Conditions to Obligations. (a) The obligations of Olin to consummate the Distribution are subject to the satisfaction (or waiver by the Olin Board) of each of the following conditions:
(i) all material regulatory approvals necessary to consummate the Distribution shall have been received and be in full force and effect;
(ii) the transactions contemplated by Article II shall have been consummated in all material respects, to the extent required to be consummated prior to the Distribution;
(iii) the Form 10 shall have become effective under the Exchange Act, and no stop order or similar Commission proceeding shall be in effect with respect to the Form 10, and no proceeding for that purpose shall have been instituted by the Commission;
(iv) Arch's Board of Directors, as described in the Information Statement, shall have been elected by Olin, as sole shareowner of Arch, and each of the Articles, the By-laws and the Rights Plan shall be in effect;
(v) the Arch Common Shares shall have been accepted for listing on the NYSE, subject to official notice of issuance;
(vi) the Olin Board shall have received an opinion of counsel satisfactory in form and substance to the Olin Board in its sole discretion to the effect that the Distribution will not be taxable to the holders of Olin Common Stock pursuant to Sections 355 and 368(a)(1)(D) of the Code;
(vii) no order, preliminary or permanent injunction or decree issued by any court or agency of competent jurisdiction or other legal restraint or prohibition preventing consummation of the Distribution shall be in effect and no other event shall have occurred or failed to occur that prevents consummation of the Distribu tion;
(viii) the Olin Board shall have formally approved the Distribution; and
(ix) each of the Ancillary Agreements shall have been executed and delivered by the applicable parties.
(b) The foregoing conditions are for the sole benefit of Olin and shall not give rise to any duty on the part of Olin or the Olin Board to waive or not waive such conditions or in any way limit Olin's right to terminate this Agreement as set forth in Section 8.13 or alter the consequences of any such termination from those specified in such Section. Any determination made by the Olin Board prior to the Distribution Date concerning the satisfaction or waiver of any or all of the conditions set forth in this Section 8.01 shall be conclusive.
SECTION 8.02. Exhibits and Schedules; Interpreta tion. The headings contained in this Agreement or in any Exhibit or Schedule hereto and in the table of contents to this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. All Exhibits and Schedules annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as is set forth in full herein. Any capitalized terms used in any Exhibit or Schedule but not otherwise defined therein, shall have the meanings as defined in this Agreement. References to an "Exhibit" or to a "Schedule" are, unless otherwise specified, to one of the Exhibits or Schedules attached to this Agreement, and references to a "Section" or an "Article" are, unless other wise specified, to one of the Sections or Articles of this Agreement. For all purposes hereof, the terms "including", "includes" or "include" shall be deemed followed by the words "without limitation". In the event of any inconsis tency between this Agreement and any Schedule hereto, the Schedule shall prevail. Notwithstanding any other provisions in this Agreement to the contrary, in the event and to the extent that there shall be a conflict between the provisions of this Agreement and the provisions of any Ancillary Agreement, such Ancillary Agreement shall control.
SECTION 8.03. Entire Agreement. This Agreement, including the Exhibits and Schedules, and the Ancillary Agreements shall constitute the entire agreement between the parties with respect to the subject matter hereof and shall supersede all previous negotiations, commitments and writings with respect to such subject matter.
SECTION 8.04. Ancillary Agreements. This Agreement is not intended to address, and should not be interpreted to address, the matters specifically and expressly covered by the Ancillary Agreements.
SECTION 8.05. Counterparts. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement, and shall become effective when one or more such counterparts have been signed by each of the parties and delivered to the other parties.
SECTION 8.06. Survival of Agreements. Except as otherwise expressly provided in this Agreement, all cove nants and agreements of the parties contained in this Agreement shall survive the Distribution Date.
SECTION 8.07. Expenses. Except as otherwise set forth in this Agreement or any Ancillary Agreement, all costs and expenses incurred on or prior to the Distribution Date (whether or not paid on or prior to the Distribution Date) in connection with the preparation, execution, delivery and implementation of this Agreement and any Ancillary Agreement, the Information Statement and the Distribution and the consummation of the transactions contemplated thereby shall be charged to and paid by Olin. Except as otherwise set forth in this Agreement or any Ancillary Agreement, each party shall bear its own costs and expenses incurred after the Distribution Date.
SECTION 8.08. Notices. All notices and other communications hereunder shall be in writing and hand delivered or mailed by registered or certified mail (return receipt requested) or sent by any means of electronic message transmission with delivery confirmed (by voice or otherwise) to the parties at the following addresses (or at such other addresses for a party as shall be specified by
like notice) and will be deemed given on the date on which such notice is received:
To Olin Corporation:
501 Merritt 7
4th Floor
Norwalk, CT 06851
Attn: Corporate Secretary
To Arch Chemicals, Inc.:
501 Merritt 7
3rd Floor
Norwalk, CT 06851
Attn: Corporate Secretary
SECTION 8.09. Waivers. The failure of either party to require strict performance by the other party of any provision in this Agreement will not waive or diminish that party's right to demand strict performance thereafter of that or any other provision hereof.
SECTION 8.10. Amendments. Subject to the terms of Section 8.13 hereof, this Agreement may not be modified or amended except by an agreement in writing signed by the parties.
SECTION 8.11. Assignment. Other than in connec tion with a transaction contemplated by Section 7.06, this Agreement shall not be assignable, in whole or in part, directly or indirectly, by any party hereto without the prior written consent of the other, and any attempt to assign any rights or obligations arising under this Agreement without such consent shall be void.
SECTION 8.12. Successors and Assigns. The provi sions of this Agreement shall be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and permitted assigns.
SECTION 8.13. Termination. This Agreement may be terminated and the Distribution may be amended, modified or abandoned at any time prior to the Distribution Date by and in the sole discretion of Olin without the approval of Arch or the shareholders of Olin. In the event of such termina tion, no party shall have any liability of any kind to any other party or any other person. After the Distribution
Date, this Agreement may not be terminated except by an agreement in writing signed by the parties.
SECTION 8.14. Subsidiaries. Each of the parties hereto shall cause to be performed, and hereby guarantees the performance of, all actions, agreements and obligations set forth herein to be performed by any Subsidiary of such party or by any entity that is contemplated to be a Subsi diary of such party after the Distribution.
SECTION 8.15. Third Party Beneficiaries. This Agreement is solely for the benefit of the parties hereto and should not be deemed to confer upon third parties any remedy, claim, liability, reimbursement, claim of action or other right in excess of those existing without reference to this Agreement.
SECTION 8.16. Attorney Fees. Except as contem plated by the third to the last sentence of Article V hereof, a party in breach of this Agreement shall, on demand, indemnify and hold harmless the other parties hereto for and against all out-of-pocket expenses, including legal fees, incurred by such other party by reason of the enforce ment and protection of its rights under this Agreement. The payment of such expenses is in addition to any other relief to which such other party may be entitled hereunder or otherwise.
SECTION 8.17. Title and Headings. Titles and headings to sections herein are inserted for the convenience of reference only and are not intended to be a part of or to affect the meaning or interpretation of this Agreement.
SECTION 8.18. Exhibits and Schedules. The Exhibits and Schedules shall be construed with and as an integral part of this Agreement to the same extent as if the same had been set forth verbatim herein.
SECTION 8.19. Specific Performance. Each of the parties hereto acknowledges that there is no adequate remedy at law for failure by such parties to comply with the provi sions of this Agreement and that such failure would cause immediate harm that would not be adequately compensable in damages, and therefore agree that their agreements contained herein may be specifically enforced without the requirement of posting a bond or other security, in addition to all other remedies available to the parties hereto under this Agreement.
SECTION 8.20. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF VIRGINIA APPLICABLE TO CONTRACTS EXECUTED THEREIN AND TO BE PERFORMED THEREIN.
SECTION 8.21. Consent to Jurisdiction. Without limiting the provisions of Article V hereof, each of the parties irrevocably submits to the exclusive personal jurisdiction and venue of (a) the Circuit Court of Henrico County, Commonwealth of Virginia, and (b) the United States District Court for the Eastern District of Virginia (Richmond Division), for the purposes of any suit, action or other proceeding arising out of this Agreement or any transaction contemplated hereby. Each of the parties agrees to commence any action, suit or proceeding relating hereto either in the United States District Court for the Eastern District of Virginia (Richmond Division) or if such suit, action or other proceeding may not be brought in such court for jurisdictional reasons, in the Circuit Court of the Henrico County, Commonwealth of Virginia. Each of the parties further agrees that service of any process, summons, notice or document by U.S. registered mail to such party's respective address set forth above shall be effective service of process for any action, suit or proceeding in Virginia with respect to any matters to which it has submitted to jurisdiction in this Section 8.21. Each of the parties irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the transactions contem plated hereby in (i) the Circuit Court of Henrico County, Commonwealth of Virginia, or (ii) the United States District Court for the Eastern District of Virginia (Richmond Division), and hereby further irrevocably and uncondi tionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum, and the right to object, with respect to such action, suit or proceeding, that such court does not have jurisdiction over such Party.
SECTION 8.22. Severability. In the event any one or more of the provisions contained in this Agreement should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein and therein shall not in any way be affected or impaired thereby. The parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions, the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the day and year first above written.
OLIN CORPORATION,
by /s/ Johnnie M. Jackson, Jr.
-----------------------------
Name: Johnnie M. Jackson, Jr.
Title: Vice President,
General Counsel and
Secretary
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ARCH CHEMICALS, INC.,
by /s/ Sarah A. O'Connor ----------------------------- Name: Sarah A. O'Connor Title: Vice President |
The following is an identification of the contents of all omitted schedules and exhibits to the Distribution Agreement. Arch Chemicals, Inc. will furnish supplementally a copy of any omitted schedule or exhibit to the Securities and Exchange Commission upon request.
SCHEDULES
Schedule 1.01(a) - Real Estate Schedule 1.01(b) - Subsidiaries Schedule 1.01(c) - Employee Matters Schedule 1.01(d) - Retained Assets Schedule 1.01(e) - Retained Businesses Schedule 1.01(f) - Litigation Schedule 1.01(g) - Certain Contractual Liabilities Schedule 1.01(h) - Environmental Schedule 1.01(i) - Certain Excluded Liabilities Schedule 1.01(j) - Arch Product Lines |
Schedule 2.08 - Guarantees
Schedule 30.4 - Contract Provisions
EXHIBIT 10.1
Conformed Copy
364-Day
CREDIT AGREEMENT
dated as of
January 27, 1999
among
ARCH CHEMICALS, INC.,
OLIN CORPORATION,
The Lenders Party Hereto,
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Syndication Agent,
WACHOVIA BANK, N.A., as Documentation Agent
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
CHASE SECURITIES INC.,
as Arranger
TABLE OF CONTENTS
Page
----
ARTICLE I
Definitions
SECTION 1.01 Defined Terms................................................... 1
SECTION 1.02 Classification of Loans and Borrowings.......................... 22
SECTION 1.03 Terms Generally................................................. 22
SECTION 1.04 Accounting Terms; GAAP.......................................... 23
ARTICLE II
The Credits
SECTION 2.01 Commitments..................................................... 23
SECTION 2.02 Loans and Borrowings............................................ 23
SECTION 2.03 Requests for Revolving Borrowings............................... 24
SECTION 2.04 Competitive Bid Procedure....................................... 25
SECTION 2.05 Funding of Borrowings........................................... 27
SECTION 2.06 Interest Elections.............................................. 28
SECTION 2.07 Termination and Reduction of Commitments........................ 29
SECTION 2.08 Repayment of Loans; Evidence of Debt............................ 30
SECTION 2.09 Prepayment of Loans............................................. 31
SECTION 2.10 Fees............................................................ 31
SECTION 2.11 Interest........................................................ 32
SECTION 2.12 Alternate Rate of Interest...................................... 33
SECTION 2.13 Increased Costs................................................. 34
SECTION 2.14 Break Funding Payments.......................................... 35
SECTION 2.15 Taxes........................................................... 35
SECTION 2.16 Payments Generally; Pro Rata Treatment; Sharing of Set-offs..... 37
SECTION 2.17 Mitigation Obligations; Replacement of Lenders.................. 39
SECTION 2.18 Extension of Commitments........................................ 39
ARTICLE III
Representations and Warranties
SECTION 3.01 Organization; Powers............................................ 40
SECTION 3.02 Authorization; Enforceability................................... 40
SECTION 3.03 Governmental Approvals; No Conflicts............................ 41
SECTION 3.04 Financial Condition; No Material Adverse Change................. 41
SECTION 3.05 Properties...................................................... 42
SECTION 3.06 Litigation and Environmental Matters............................ 42
SECTION 3.07 Compliance with Laws and Agreements............................. 42
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Page
----
SECTION 3.08 Investment and Holding Company Status........................... 43
SECTION 3.09 Taxes........................................................... 43
SECTION 3.10 ERISA........................................................... 43
SECTION 3.11 Disclosure...................................................... 43
SECTION 3.12 Year 2000....................................................... 44
SECTION 3.13 No Default...................................................... 44
SECTION 3.14 Federal Regulations............................................. 44
SECTION 3.15 Labor Matters................................................... 44
SECTION 3.16 Options......................................................... 44
SECTION 3.17 Insurance....................................................... 44
ARTICLE IV
Conditions
SECTION 4.01 Loans to Olin................................................... 45
SECTION 4.02 Loans to the Company............................................ 46
SECTION 4.03 Each Credit Event............................................... 47
ARTICLE V
Affirmative Covenants
SECTION 5.01 Financial Statements; Ratings Change and Other Information...... 47
SECTION 5.02 Notices of Material Events...................................... 49
SECTION 5.03 Existence; Conduct of Business.................................. 50
SECTION 5.04 Payment of Obligations.......................................... 50
SECTION 5.05 Maintenance of Properties; Insurance............................ 50
SECTION 5.06 Books and Records; Inspection Rights............................ 50
SECTION 5.07 Compliance with Laws............................................ 51
SECTION 5.08 Use of Proceeds................................................. 51
SECTION 5.09 Environmental Laws.............................................. 51
ARTICLE VI
Negative Covenants
SECTION 6.01 Indebtedness.................................................... 51
SECTION 6.02 Liens........................................................... 52
SECTION 6.03 Fundamental Changes............................................. 53
SECTION 6.04 Hedging Agreements.............................................. 53
SECTION 6.05 Restricted Payments............................................. 53
SECTION 6.06 Transactions with Affiliates.................................... 54
SECTION 6.07 Disposition of Property......................................... 54
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Page
----
SECTION 6.08 Payments and Modifications of Certain Debt Instruments........... 55
SECTION 6.09 Sales and Leasebacks............................................. 55
SECTION 6.10 Changes in Fiscal Periods........................................ 55
SECTION 6.11 Lines of Business................................................ 55
SECTION 6.12 Financial Covenants.............................................. 55
SECTION 6.13 Olin Affirmative and Negative Covenants.......................... 55
ARTICLE VII
Events of Default................................. 56
ARTICLE VIII
The Administrative Agent, Syndication Agent and Documentation Agent..... 58
ARTICLE IX
Miscellaneous
SECTION 9.01 Notices.......................................................... 61
SECTION 9.02 Waivers; Amendments.............................................. 62
SECTION 9.03 Expenses; Indemnity; Damage Waiver............................... 63
SECTION 9.04 Successors and Assigns........................................... 64
SECTION 9.05 Survival......................................................... 67
SECTION 9.06 Counterparts; Integration; Effectiveness......................... 68
SECTION 9.07 Severability..................................................... 68
SECTION 9.08 Right of Setoff.................................................. 68
SECTION 9.09 Governing Law; Jurisdiction; Consent to Service of Process....... 68
SECTION 9.10 WAIVER OF JURY TRIAL............................................. 69
SECTION 9.11 Headings......................................................... 69
SECTION 9.12 Confidentiality.................................................. 70
SECTION 9.13 Interest Rate Limitation......................................... 70
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WHEREAS, the Company and Olin desire to establish a 364-day revolving credit facility in the amount of $125,000,000 as provided herein;
WHEREAS, Olin will effect the Spin-Off, pursuant to which substantially all of the specialty chemicals businesses of Olin and its subsidiaries will be transferred to the Company and 100% of the shares of capital stock of the Company will be distributed to the owners of Olin's common stock;
WHEREAS, effective upon the consummation of the Company Closing, the Company will assume all of the obligations of Olin hereunder and Olin will be released from such obligations;
WHEREAS, after the Company Closing Date, the Company will use funds available under this facility for its general corporate purposes in the ordinary course of business; and
WHEREAS, on the terms and conditions provided herein, the Lenders are willing to (i) release Olin from its obligations hereunder upon the assumption of such obligations by the Company on the Company Closing Date and (ii) make Loans to the Company from time to time after the Company Closing Date;
NOW, THEREFORE, the parties hereto agree as follows:
arising from the sale of inventory or the rendering of services or howsoever otherwise arising, and assets relating thereto, including all collateral securing such accounts receivable, all contracts and all Guarantees or other obligations in respect of such accounts receivable, proceeds of such accounts receivable and all other assets that are customarily transferred or in respect of which security interests are customarily granted in connection with asset securitization transactions involving accounts receivable, and including the right to payment of any interest or finance charges, sales tax, returned checks or late charges or other obligations with respect thereto and all proceeds of insurance with respect thereto, and all books, customer lists, ledgers, records and files (whether written or stored electronically) relating to any of the foregoing.
========================================================================================================
Consolidated Leverage
--------------------
Ratio ABR Spread Eurodollar Spread Facility Fee Rate
----- ----------- ------------------ -----------------
--------------------------------------------------------------------------------------------------------
less than equal to 0.5 0.0% 0.475 % 0.150 %
--------------------------------------------------------------------------------------------------------
greater than 0.5 and less than equal to 1.5 0.0% 0.575 % 0.175 %
--------------------------------------------------------------------------------------------------------
greater than 1.5 and less than equal to 2.5 0.0% 0.675 % 0.200 %
--------------------------------------------------------------------------------------------------------
greater than 2.5 0.0% 1.000 % 0.250 %
========================================================================================================
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(ii) at all times on and after a Ratings Event, the applicable rate per annum set forth below:
================================================================================
Senior Unsecured
Debt Rating ABR Spread Eurodollar Spread Facility Fee Rate
----------- ----------- ------------------ ------------------
--------------------------------------------------------------------------------
A/A3 0.0% 0.375% 0.125%
--------------------------------------------------------------------------------
BBB+/Baa1 0.0% 0.475% 0.150%
--------------------------------------------------------------------------------
BBB/Baa2 0.0% 0.575% 0.175%
--------------------------------------------------------------------------------
BBB-/Baa3 0.0% 0.675% 0.200%
--------------------------------------------------------------------------------
less than BBB-/Baa3 0.0% 1.000% 0.250%
================================================================================
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; provided, that, for purposes of the foregoing, (i) if either Moody's or S&P
B -------- ----
shall not have in effect a rating for the Index Debt (other than by reason of
the circumstances referred to in the last sentence of this definition), then the
Applicable Rate shall be determined based on the rating for the Index Debt by
the other such agency, (ii) if the ratings established or deemed to have been
established by Moody's and S&P for the Index Debt shall fall within different
categories, the Applicable Rate shall be based on the higher of the two ratings
unless one of the two ratings is two or more categories lower than the other, in
which case the Applicable Rate shall be determined by reference to the category
next below that of the higher of the two ratings; (iii) if the ratings
established or deemed to have been established by Moody's and S&P for the Index
Debt shall be changed (other than as a result of a change in the rating system
of Moody's or S&P), such change shall be effective as of the date on which it is
first announced by the applicable rating agency, irrespective of when notice of
such change shall have been furnished by the Borrower to the Administrative
Agent and the Lenders pursuant to Section 5.01(f) hereof or otherwise and (iv)
if at any time after a Ratings Event, neither Moody's or S&P shall have in
effect a rating for the Index Debt, then the Applicable Rate shall be determined
on the basis of the table set forth in clause (i) above. Each change in the
Applicable Rate shall apply during the period commencing on the effective date
of such change and ending on the date immediately preceding the effective date
of the next such change. If the rating system of Moody's or S&P shall change,
or if either such rating agency shall cease to be in the business of rating
corporate debt obligations, the Borrower and the Lenders shall negotiate in good
faith to amend this definition to reflect such changed rating system or the
unavailability of ratings from such rating agency and, pending the effectiveness
of any such amendment, the Applicable Rate shall be determined by reference to
the rating most recently in effect prior to such change or cessation.
result of any change in any law, rule or regulation, it is no longer possible to determine the Assessment Rate as aforesaid, then the Assessment Rate shall be such annual rate as shall be determined by the Administrative Agent to be representative of the cost of such insurance to the Lenders.
of the Code or Section 303(d) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the Borrower or any of its ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA.
amount" of the obligations of the Borrower or any Subsidiary in respect of any Hedging Agreement at any time shall be the maximum aggregate amount (giving effect to any netting agreements) that the Borrower or such Subsidiary would be required to pay if such Hedging Agreement were terminated at such time.
(a) Liens imposed by law for taxes that are not yet due or are being contested in compliance with Section 5.04;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's and other like Liens imposed by law, arising in the ordinary course of business and securing obligations that are not overdue by more than 30 days or are being contested in compliance with Section 5.04;
(c) pledges and deposits made in the ordinary course of business in compliance with workers' compensation, unemployment insurance and other social security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature, and to secure letters of credit in respect thereof, in each case in the ordinary course of business;
(e) judgment liens in respect of judgments that do not constitute an Event of Default under clause (k) of Article VII; and
(f) easements, zoning restrictions, rights-of-way and similar encumbrances on real property imposed by law or arising in the ordinary course of business that do not secure any monetary obligations and do not materially detract from the value of the affected property or interfere with the ordinary conduct of business of the Borrower or any Subsidiary;
payment to the prior payment in full in cash of all obligations now or hereafter existing under this Agreement and the Five-Year Facility.
(d) Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled to request, or to elect to convert or continue, any Borrowing if the Interest Period requested with respect thereto would end after the Maturity Date.
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing;
(iv) in the case of a Eurodollar Borrowing, the initial Interest Period to be applicable thereto, which shall be a period contemplated by the definition of the term "Interest Period"; and
(v) the location and number of the Borrower's account to which funds are to be disbursed, which shall comply with the requirements of Section 2.05.
If no election as to the Type of Revolving Borrowing is specified, then the requested Revolving Borrowing shall be an ABR Borrowing. If no Interest Period is specified with respect to any requested Eurodollar Revolving Borrowing, then the Borrower shall be deemed to have selected an Interest Period of one month's duration. Promptly following receipt of a Borrowing Request in accordance with this Section, the Administrative Agent shall advise each Lender of the details thereof and of the amount of such Lender's Loan to be made as part of the requested Borrowing.
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be a Eurodollar Borrowing or a Fixed Rate Borrowing;
(iv) the Interest Period to be applicable to such Borrowing, which shall be a period contemplated by the definition of the term "Interest Period"; and
(v) the location and number of the Borrower's account to which
funds are to be disbursed, which shall comply with the requirements of
Section 2.05.
Promptly following receipt of a Competitive Bid Request in accordance with this Section, the Administrative Agent shall notify the Lenders of the details thereof by telecopy, inviting the Lenders to submit Competitive Bids.
(b) Each Lender may (but shall not have any obligation to) make one or
more Competitive Bids to the Borrower in response to a Competitive Bid Request.
Each Competitive Bid by a Lender must be in a form approved by the
Administrative Agent and must be received by the Administrative Agent by
telecopy, in the case of a Eurodollar Competitive Borrowing, not later than 9:30
a.m., New York City time, three Business Days before the proposed date of such
Competitive Borrowing, and in the case of a Fixed Rate Borrowing, not later than
9:30 a.m., New York City time, on the proposed date of such Competitive
Borrowing. Competitive Bids that do not conform substantially to the form
approved by the Administrative Agent may be rejected by the Administrative
Agent, and the Administrative Agent shall notify the applicable Lender as
promptly as practicable.
Each Competitive Bid shall specify (i) the principal amount (which shall be a
minimum of $5,000,000 and an integral multiple of $1,000,000 and which may equal
the entire principal amount of the Competitive Borrowing requested by the
Borrower) of the Competitive Loan or Loans that the Lender is willing to make,
(ii) the Competitive Bid Rate or Rates at which the Lender is prepared to make
such Loan or Loans (expressed as a percentage rate per annum in the form of a
decimal to no more than four decimal places) and (iii) the Interest Period
applicable to each such Loan and the last day thereof.
(c) The Administrative Agent shall promptly notify the Borrower by telecopy of the Competitive Bid Rate and the principal amount specified in each Competitive Bid and the identity of the Lender that shall have made such Competitive Bid.
(e) The Administrative Agent shall promptly notify each bidding Lender by telecopy whether or not its Competitive Bid has been accepted (and, if so, the amount and Competitive Bid Rate so accepted), and each successful bidder will thereupon become bound, subject to the terms and conditions hereof, to make the Competitive Loan in respect of which its Competitive Bid has been accepted.
(f) If the Administrative Agent shall elect to submit a Competitive Bid in its capacity as a Lender, it shall submit such Competitive Bid directly to the Borrower at least one quarter of an hour earlier than the time by which the other Lenders are required to submit their Competitive Bids to the Administrative Agent pursuant to paragraph (b) of this Section.
(a) Each Lender shall make each Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds by 12:00 noon, New York City time, to the account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders. The Administrative Agent will make such Loans available to the Borrower by promptly crediting the amounts so received, in like funds, to an account of the Borrower maintained with the Administrative Agent in New York City and designated by the Borrower in the applicable Borrowing Request or Competitive Bid Request.
(b) Unless the Administrative Agent shall have received notice from a
Lender prior to the proposed date of any Borrowing that such Lender will not
make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender and the Borrower severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount with interest thereon, for
each day from and including the date such amount is made available to the
Borrower to but excluding the date of payment to the Administrative Agent, at
(i) in the case of such Lender, the greater of the Federal Funds Effective Rate
and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation or (ii) in the case of the Borrower,
the interest rate applicable to ABR Loans. If such Lender pays such amount to
the Administrative Agent, then such amount shall constitute such Lender's Loan
included in such Borrowing.
(a) Each Revolving Borrowing initially shall be of the Type specified in the applicable Borrowing Request and, in the case of a Eurodollar Revolving Borrowing, shall have an initial Interest Period as specified in such Borrowing Request. Thereafter, the Borrower may elect to convert such Borrowing to a different Type or to continue such Borrowing and, in the case of a Eurodollar Revolving Borrowing, may elect Interest Periods therefor, all as provided in this Section. The Borrower may elect different options with respect to different portions of the affected Borrowing, in which case each such
portion shall be allocated ratably among the Lenders holding the Loans comprising such Borrowing, and the Loans comprising each such portion shall be considered a separate Borrowing. This Section shall not apply to Competitive Borrowings, which may not be converted or continued.
(b) To make an election pursuant to this Section, the Borrower shall notify the Administrative Agent of such election by telephone by the time that a Borrowing Request would be required under Section 2.03 if the Borrower were requesting a Revolving Borrowing of the Type resulting from such election to be made on the effective date of such election. Each such telephonic Interest Election Request shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the Administrative Agent of a written Interest Election Request in a form approved by the Administrative Agent and signed by the Borrower.
(c) Each telephonic and written Interest Election Request shall specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies and, if different options are being elected with respect to different portions thereof, the portions thereof to be allocated to each resulting Borrowing (in which case the information to be specified pursuant to clauses (iii) and (iv) below shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the Interest Period to be applicable thereto after giving effect to such election, which shall be a period contemplated by the definition of the term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does not specify an Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the Administrative Agent shall advise each Lender of the details thereof and of such Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election Request with respect to a Eurodollar Revolving Borrowing prior to the end of the Interest Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of
such Interest Period such Borrowing shall be converted to an ABR Borrowing. Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is continuing and the Administrative Agent, at the request of the Required Lenders, so notifies the Borrower, then, so long as an Event of Default is continuing (i) no outstanding Revolving Borrowing may be converted to or continued as a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar Revolving Borrowing shall be converted to an ABR Borrowing at the end of the Interest Period applicable thereto.
(a) Unless previously terminated, the Commitments shall terminate on the Maturity Date.
(a) The Borrower hereby unconditionally promises to pay (i) to the Administrative Agent for the account of each Lender the then unpaid principal amount of each Revolving Loan on the Maturity Date and (ii) to the Administrative Agent for the account of each Lender the then unpaid principal amount of each Competitive Loan on the last day of the Interest Period applicable to such Loan.
(b) Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to such Lender resulting
from each Loan made by such Lender, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder.
(c) The Administrative Agent shall maintain accounts in which it shall record (i) the amount of each Loan made hereunder, the Class and Type thereof and the Interest Period applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder for the account of the Lenders and each Lender's share thereof.
(e) Any Lender may request that Loans made by it be evidenced by a promissory note. In such event, the Borrower shall prepare, execute and deliver to such Lender a promissory note payable to the order of such Lender (or, if requested by such Lender, to such Lender and its registered assigns) and in a form approved by the Administrative Agent. Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all times (including after assignment pursuant to Section 9.04) be represented by one or more promissory notes in such form payable to the order of the payee named therein (or, if such promissory note is a registered note, to such payee and its registered assigns).
dance with Section 2.07. Promptly following receipt of any such notice relating to a Revolving Borrowing, the Administrative Agent shall advise the Lenders of the contents thereof. Each partial prepayment of any Revolving Borrowing shall be in an amount that would be permitted in the case of an advance of a Revolving Borrowing of the same Type as provided in Section 2.02. Each prepayment of a Revolving Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.11 and any payment required under Section 2.14.
(c) The Borrower shall on the date, if any, specified in Section 6.07(f) repay Loans in the amounts and otherwise in all respects as provided in such Section.
(b) The Borrower agrees to pay to the Administrative Agent, for its own account, fees payable in the amounts and at the times separately agreed upon between the Borrower and the Administrative Agent.
(c) All fees payable hereunder shall be paid on the dates due, in immediately available funds, to the Administrative Agent for distribution, in the case of facility fees and participation fees, to the Lenders. Fees paid shall not be refundable under any circumstances.
(a) The Loans comprising each ABR Borrowing shall bear interest at the Alternate Base Rate plus the Applicable Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear interest
(i) in the case of a Eurodollar Revolving Loan, at the Adjusted LIBO Rate for
the Interest Period in effect for such Borrowing plus the Applicable Rate, or
(ii) in the case of a Eurodollar Competitive Loan, at the LIBO Rate for the
Interest Period in effect for such Borrowing plus (or minus, as applicable) the
Margin applicable to such Loan.
(c) Each Fixed Rate Loan shall bear interest at the Fixed Rate applicable to such Loan.
(d) Notwithstanding the foregoing, if any principal of or interest on any Loan or any fee or other amount payable by the Borrower hereunder is not paid when due, whether at stated maturity, upon acceleration or otherwise, such overdue amount shall bear interest, after as well as before judgment, at a rate per annum equal to (i) in the case of overdue principal of any Loan, 2% plus the rate otherwise applicable to such Loan as provided in the preceding paragraphs of this Section or (ii) in the case of any other amount, 2% plus the rate applicable to ABR Loans as provided in paragraph (a) of this Section.
(f) All interest hereunder shall be computed on the basis of a year of 360 days, except that interest computed by reference to the Alternate Base Rate at times when the Alternate Base Rate is based on the Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap year), and in each case shall be payable for the actual number of days elapsed (including the first day but excluding the last day). The applicable Alternate Base Rate, Adjusted LIBO Rate or LIBO Rate shall be determined by the Administrative Agent, and such determination shall be conclusive absent manifest error.
(a) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders (or, in the case of a Eurodollar Competitive Loan, the Lender that is required to make such Loan) that the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in such Borrowing for such Interest Period;
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender (except any such reserve requirement reflected in the Adjusted LIBO Rate); or
(ii) impose on any Lender or the London interbank market any other condition affecting this Agreement, Eurodollar Loans or Fixed Rate Loans made by such Lender;
and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any Eurodollar Loan or Fixed Rate Loan (or of maintaining its obligation to make any such Loan) or to increase the cost to such Lender or to reduce the amount of any
sum received or receivable by such Lender hereunder (whether of principal, interest or otherwise), then the Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender, for such additional costs incurred or reduction suffered.
(b) If any Lender determines that any Change in Law regarding capital requirements has or would have the effect of reducing the rate of return on such Lender's capital or on the capital of such Lender's holding company, if any, as a consequence of this Agreement or the Loans made by, such Lender, to a level below that which such Lender or such Lender's holding company could have achieved but for such Change in Law (taking into consideration such Lender's policies and the policies of such Lender's holding company with respect to capital adequacy), then from time to time the Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender or such Lender's holding company for any such reduction suffered.
(c) A certificate of a Lender setting forth the amount or amounts necessary to compensate such Lender or its holding company, as the case may be, as specified in paragraph (a) or (b) of this Section shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate within 10 days after receipt thereof.
(e) Notwithstanding the foregoing provisions of this Section, a Lender shall not be entitled to compensation pursuant to this Section in respect of any Competitive Loan if the Change in Law that would otherwise entitle it to such compensation shall have been publicly announced prior to submission of the Competitive Bid pursuant to which such Loan was made.
such Loan, or (e) the assignment of any Eurodollar Loan or Fixed Rate Loan other than on the last day of the Interest Period applicable thereto as a result of a request by the Borrower pursuant to Section 2.17, then, in any such event, the Borrower shall compensate each Lender for the loss, cost and expense attributable to such event. In the case of a Eurodollar Loan, such loss, cost or expense to any Lender shall be deemed to include an amount determined by such Lender to be the excess, if any, of (i) the amount of interest which would have accrued on the principal amount of such Loan had such event not occurred, at the Adjusted LIBO Rate that would have been applicable to such Loan, for the period from the date of such event to the last day of the then current Interest Period therefor (or, in the case of a failure to borrow, convert or continue, for the period that would have been the Interest Period for such Loan), over (ii) the amount of interest which would accrue on such principal amount for such period at the interest rate which such Lender would bid were it to bid, at the commencement of such period, for dollar deposits of a comparable amount and period from other banks in the eurodollar market. A certificate of any Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to this Section shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate within 10 days after receipt thereof.
(b) In addition, the Borrower shall pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent, each Lender, within 10 days after written demand therefor, for the full amount of any Indemnified Taxes or Other Taxes paid by the Administrative Agent, such Lender on or with respect to any payment by or on account of any obligation of the Borrower hereunder (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section) and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. The Administrative Agent, each Lender and the Issuing Bank will, at the Borrower's expense, cooperate in
good faith with the Borrower in any contest as to whether or not such
Indemnified Taxes, Other Taxes, penalties, interest or expenses were correctly
or legally imposed or asserted in the event such Indemnified Taxes, Other Taxes,
penalties, interest or expenses were in the good faith judgment of the
Administrative Agent, such Lender or the Issuing Bank, as the case may be, not
legal or not correctly asserted. If in connection with such contest such
Indemnified Taxes, Other Taxes, penalties, interest or expenses are refunded to
the Administrative Agent, such Lender or the Issuing Bank, the Administrative
Agent, such Lender or the Issuing Bank will pay such refund to the Borrower to
the extent the Administrative Agent, such Lender or the Issuing Bank,
determines in its sole discretion that such refund is attributable to any
Indemnified Taxes, Other Taxes, penalties, interest or expenses paid by the
Borrower and to the extent the Borrower has previously indemnified the
Administrative Agent, such Lender or the Issuing Bank therefor pursuant to this
Section 2.17, net of expenses and without interest except any interest (net of
taxes) included in such refund. The Borrower shall return such refund (together
with any taxes, penalties or other charges) in the event the Administrative
Agent, such Lender or the Issuing Bank is required to repay such refund.
Notwithstanding the foregoing, nothing in this Section 2.17 shall be construed
to (i) entitle the Borrower or any other Persons to any information determined
by the Administrative Agent, any Lender or the Issuing Bank, in each case, in
its sole discretion, to be confidential or proprietary information of the
Administrative Agent, any Lender or the Issuing Bank, to any tax or financial
information of the Administrative Agent, any Lender or the Issuing Bank or to
inspect or review any books and records of the Administrative Agent, any Lender
or the Issuing Bank, or (ii) interfere with the rights of the Administrative
Agent, any Lender or the Issuing Bank to conduct its fiscal or tax affairs in
such matter as it deems fit.
A certificate as to the amount of such payment or liability delivered to the
Borrower by a Lender or the Issuing Bank, or by the Administrative Agent on its
own behalf or on behalf of a Lender or the Issuing Bank, shall be conclusive
absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or Other Taxes by the Borrower to a Governmental Authority, the Borrower shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or reduction of withholding tax under the law of the jurisdiction in which the Borrower is located, or any treaty to which such jurisdiction is a party, with respect to payments under this Agreement shall deliver to the Borrower (with a copy to the Administrative Agent), at the time or times prescribed by applicable law, such properly completed and executed documentation prescribed by applicable law or reasonably requested by the Borrower as will permit such payments to be made without withholding or at a reduced rate.
(a) The Borrower shall make each payment required to be made by it
hereunder (whether of principal, interest, fees, or of amounts payable under
Section 2.13, 2.14 or 2.15, or otherwise) prior to 12:00 noon, New York City
time, on the date when due, in immediately available funds, without set-off or
counterclaim. Any amounts received after such time on any date may, in the
discretion of the Administrative Agent, be deemed to have been received on the
next succeeding Business Day for purposes of calculating interest thereon. All
such payments shall be made to the Administrative Agent at its offices at 270
Park Avenue, New York, New York, except that payments pursuant to Sections 2.13,
2.14, 2.15 and 9.03 shall be made directly to the Persons entitled thereto. The
Administrative Agent shall distribute any such payments received by it for the
account of any other Person to the appropriate recipient promptly following
receipt thereof. If any payment hereunder shall be due on a day that is not a
Business Day, the date for payment shall be extended to the next succeeding
Business Day, and, in the case of any payment accruing interest, interest
thereon shall be payable for the period of such extension. All payments
hereunder shall be made in dollars.
(b) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, interest and fees then due hereunder, such funds shall be applied (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal then due to such parties.
agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.05(b) or 2.16(d), then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender's obligations under such Sections until all such unsatisfied obligations are fully paid.
(a) If any Lender requests compensation under Section 2.13, or if the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.15, then such Lender shall use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.13 or 2.15, as the case may be, in the future and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.13, or if the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.15, or if any Lender defaults in its obligation to fund Loans hereunder, then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions
The Borrower represents and warrants to the Lenders that:
(a) Olin has heretofore furnished to the Lenders its consolidated balance sheet and statements of income, stockholders equity and cash flows (i) as of and for the fiscal years ended December 31, 1996 and December 31, 1997 reported on and audited by KPMG Peat Marwick LLP, independent public accountants, and (ii) as of and for the fiscal quarters ended March 31, 1998, June 30, 1998 and September 30, 1998, certified by its chief financial officer. The Company has heretofore furnished to the Lenders its consolidated balance sheet and statements of income, stockholders equity and cash flows (i) as of and for the fiscal years ended December 31, 1996 and December 31, 1997, reported on
and audited by KPMG Peat Marwick LLP, independent public accountants, and (ii) as of and for the nine-month period ended September 30, 1998, certified by its chief financial officer. All of the foregoing financial statements present fairly, in all material respects, the financial position and results of operations and cash flows of the Borrower and its consolidated Subsidiaries as of such dates and for such periods in accordance with GAAP, subject to year-end audit adjustments and the absence of footnotes in the case of the statements referred to in clause (ii) above.
(b) All financial statements delivered pursuant to clause (a) above, including the related schedules and notes thereto, have been prepared in accordance with GAAP applied consistently throughout the periods involved. The Borrower and its Subsidiaries do not have any material Guarantee obligations, contingent liabilities and liabilities for Taxes, or any long-term leases or unusual forward or long-term commitments, including any interest rate or foreign currency swap or exchange transaction or other obligation in respect of derivatives, that are not reflected in the most recent financial statements referred to in this Section 3.04.
(c) Since September 30, 1998, there has been no event, development or circumstance that has had or could reasonably be expected to have a Material Adverse Effect on the Borrower and its Subsidiaries.
(a) Each of the Borrower and its Subsidiaries has good title to, or valid leasehold interests in, all its real and personal property material to its business, except for minor defects in title that do not interfere with its ability to conduct its business as currently conducted or to utilize such properties for their intended purposes.
(b) Each of the Borrower and its Subsidiaries owns, or is licensed to use, all trademarks, tradenames, copyrights, patents and other intellectual property material to its business, and the use thereof by the Borrower and its Subsidiaries does not infringe upon the rights of any other Person, except for any such infringements that, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
(a) There are no actions, suits or proceedings by or before any arbitrator or Governmental Authority pending against or, to the knowledge of the Borrower, threatened against or affecting the Borrower or any of its Subsidiaries (i) the reasonably anticipated outcome of which would, individually or in the aggregate, result in a Material Adverse Effect (other than the Disclosed Matters) or (ii) that involve this Agreement or the Transactions.
(b) Except for the Disclosed Matters and except with respect to any other matters that, individually or in the aggregate, could not reasonably be expected to result in a
Material Adverse Effect, neither the Borrower nor any of its Subsidiaries (i) has failed to comply with any Environmental Law or to obtain, maintain or comply with any Environmental Permit, (ii) has become subject to any Environmental Liability, (iii) has received notice of any Environmental Claim or (iv) knows of any basis for any Environmental Liability.
(c) Since the date of this Agreement, there has been no change in the status of the Disclosed Matters that, individually or in the aggregate, has resulted in, or could reasonably be expected to result in, a Material Adverse Effect.
shareholders rights plans in effect from time to time) of any nature relating to any Capital Stock of the Borrower or any Subsidiary, except as created by the Loan Documents.
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received a favorable written opinions (addressed to the Administrative Agent and the Lenders and dated the Effective Date) of (i) Cravath, Swaine & Moore, counsel for Olin and the Company, (ii) Hunton and Williams, special Virginia counsel for Olin and the Company, and (iii) the General Counsel for Olin and the Company, covering the matters set forth in Exhibit B, and covering such other matters relating to the Borrower, this Agreement or the Transactions as the Required Lenders shall reasonably request. Each of Olin and the Company hereby requests each of such counsel to deliver such opinions.
(c) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of Olin and the Company, the authorization of the Transactions and any other legal matters relating to Olin and the Company, this Agreement or the Transactions, all in form and substance satisfactory to the Administrative Agent and its counsel.
(d) All governmental and third party approvals necessary in connection with the Transaction, the continuing operations of the Borrower and its Subsidiaries and the transactions contemplated hereby shall have been obtained and be in full force and effect, and all applicable waiting periods shall have expired without any action being taken or threatened by any competent authority that would restrain, prevent or otherwise impose adverse conditions on the Transaction or the financing contemplated hereby.
(e) The Administrative Agent shall have received a certificate, dated the Effective Date, with respect to Olin, and signed by the President, a Vice President or a Financial Officer of Olin, confirming compliance with the conditions set forth in paragraphs (a) and (b) of Section 4.03, as to Olin.
(f) The Administrative Agent shall have received all fees and other amounts due and payable on or prior to the Effective Date, as to Olin, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(g) The Administrative Agent shall have received, and shall be satisfied with such financial, business and other information regarding the Company and its Subsidiaries relating to the Spin-Off as it shall have reasonably requested, including, without limitation, all matters related to insurance, ERISA, labor, intellectual property, taxes and environmental liabilities relating to the Company and its subsidiaries as it may have requested; it being understood that all of the matters described with particularity in the Form 10 with respect to the Spin-Off are, to the extent, and only to the extent, described therein, satisfactory to the Administrative Agent.
The Administrative Agent shall notify Olin and the Lenders of the Olin Closing Date, and such notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the Lenders to make Loans to Olin shall not become effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 9.02) at or prior to 3:00 p.m., New York City time, on February 28, 1999 (and, in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time).
(a) The Spin-Off (other than the Distribution) shall have occurred.
(b) The Administrative Agent shall have received a certificate, dated the Effective Date with respect to the Company and signed by the President, a Vice President or a Financial Officer of the Company, confirming compliance with the conditions set forth in paragraph (a) of Section 4.03.
(c) At least one Business Day shall have elapsed since the last borrowing (if any) by Olin hereunder.
Upon completion of the conditions set forth in paragraphs (a), (b) and (c) of this Section 4.02, all rights, liabilities and obligations of Olin under this Agreement will automatically, and without further act of the parties hereto, be assigned and delegated to the Company, and
the Company will automatically assume all such rights, liabilities and obligations in full, including without limitation the obligation to pay the principal of and all interest on any outstanding Loans hereunder, all fees and all other amounts from time to time owing hereunder, whether such Loans shall have been made, or such interest, fees or other amounts shall have accrued, prior to or after the date of such assumption and (ii) Olin will be automatically released from any and all obligations, claims and liabilities whatsoever, whether paid or unpaid, accrued or unaccrued, known or unknown, fixed or contingent, or otherwise, under this Agreement or arising in connection herewith and on any Loans hereunder, and from and after such time the Company will be the "Borrower" and sole obligor hereunder.
The Administrative Agent shall notify the Lenders of the Company Closing Date, and such notice shall be conclusive and binding.
(a) The representations and warranties of the Borrower set forth in this Agreement (including, without limitation, those set forth in Sections 3.04(c) and 3.06) shall be true and correct on and as of the date of such Borrowing.
(b) At the time of and immediately after giving effect to such Borrowing no Default shall have occurred and be continuing.
Each Borrowing shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the matters specified in paragraphs (a) and (b) of this Section.
Subject to Section 6.13, until the Commitments have expired or been terminated and the principal of and interest on each Loan and all fees payable hereunder shall have been paid in full, the Borrower covenants and agrees with the Lenders that:
(a) within 90 days after the end of each fiscal year of the Borrower its audited consolidated balance sheet and related statements of operations, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by KPMG Peat Marwick LLP or other independent public accountants of recognized national standing (without a "going concern" or like qualification or exception and without any qualification or exception as to
the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year of the Borrower, its consolidated balance sheet and related statements of operations, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements under (i) clause (a) or (b) above, a certificate of a Financial Officer of the Borrower (A) certifying as to whether a Default has occurred and, if a Default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (B) setting forth reasonably detailed calculations demonstrating compliance with Section 6.12(a) and (b), and (C) stating whether any change in GAAP or in the application thereof has occurred since the date of the audited financial statements referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate and (ii) clause (a) above, a certificate of a Responsible Officer of the Borrower containing a list of Subsidiaries of the Borrower as of such date, along with a list of each new Subsidiary acquired or formed, and each Subsidiary dissolved or liquidated, since the last such certification;
(d) concurrently with any delivery of financial statements under clause (a) above, a certificate of the accounting firm that reported on such financial statements stating whether they obtained knowledge during the course of their examination of such financial statements of any Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Borrower or any Subsidiary with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its shareholders generally, as the case may be;
(f) promptly after Moody's or S&P shall have announced a change in the rating established or deemed to have been established for the Index Debt, written notice of such rating change; and
(g) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Borrower or any Subsidiary, or compliance with the terms of this Agreement, as the Administrative Agent or any Lender may reasonably request.
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by or before any arbitrator or Governmental Authority against or affecting the Borrower or any of its Subsidiaries, the reasonably anticipated outcome of which would result in a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together with any other ERISA Events that have occurred, could reasonably be expected to result in liability of the Borrower and its Subsidiaries in an aggregate amount exceeding $10,000,000; and
(d) the commencement of, or any material development in, any action, suit, proceeding or investigation affecting the Borrower or any of its Subsidiaries or any of their respective properties before any arbitrator or Governmental Authority, in which the amount of any claim, damage, penalty or fine asserted against the Borrower or its Subsidiaries that the Borrower reasonably determines is not covered by insurance is $15,000,000 or more;
(e) the occurrence of one or more of the following, to the extent
that any of the following, if adversely determined, could reasonably be expected
to result in liability to the Borrower or any of its Subsidiaries in excess of
$7,500,000 or a fine or penalty in excess of $2,500,000: (i) written notice,
claim or request for information to the effect that the Borrower or any of its
Subsidiaries is or may be liable in any material respect to any Person as a
result of the presence of or the Release or substantial threat of a material
Release of any Hazardous Materials into the environment; (ii) written notice
that the Borrower or any of its Subsidiaries is subject to investigation by any
Governmental Authority evaluating whether any Remedial Action is needed to
respond to the presence or to the Release or substantial threat of a material
Release of any Hazardous Materials into the environment; (iii) written notice
that any property, whether owned or leased by, or operated on behalf of, the
Borrower or any of its Subsidiaries is subject to a material Environmental Lien;
(iv) written notice of violation to the Borrower or any of its Subsidiaries of
any Environmental Laws or Environ mental Permits; or (v) commencement or written
threat of any judicial or administrative proceeding alleging a violation of any
Environmental Laws or Environmental Permits;
(f) upon written request by Administrative Agent, a report providing an update of the status of each environmental, health or safety compliance, hazard or liability
issue identified in any notice or report required pursuant to clause (e) above and any other environmental, health and safety compliance obligation, remedial obligation or liability that could reasonably be expected to have a Material Adverse Effect (all such notices shall describe in reasonable detail the nature of the claim, investigation, condition, occurrence or Remedial Action and the Borrower's or such Subsidiary's response thereto);
(g) prompt notice of any event or condition that would cause the representation contained in Section 3.12 to be false, and such other information regarding the year 2000 and the effect thereof on the Borrower as the Administrative Agent shall reasonably request; and
(h) any other development that results in, or could reasonably be expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of a Financial Officer or other executive officer of the Borrower setting forth the details of the event or development requiring such notice and any action taken or proposed to be taken with respect thereto.
Subject to Section 6.13, until the Commitments have expired or terminated and the principal of and interest on each Loan and all fees payable hereunder have been paid in full, the Borrower covenants and agrees with the Lenders that:
(a) Indebtedness existing on the date hereof and set forth in Schedule 6.01 and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof;
(b) Indebtedness to the Borrower or any other Subsidiary;
(c) Guarantees of Indebtedness of the Borrower or any other Subsidiary;
(e) Indebtedness as an account party in respect of trade letters of credit;
(f) Indebtedness of Receivables Subsidiaries arising pursuant to Permitted Accounts Receivable Securitizations in an aggregate principal amount not to exceed $100,000,000; and
(g) other Indebtedness in an aggregate principal amount not exceeding $50,000,000 at any time outstanding.
(a) Permitted Encumbrances;
Lien shall secure only those obligations which it secures on the date of such acquisition or the date such Person becomes a Subsidiary, as the case may be and extensions, renewals and replacements thereof that do not increase the outstanding principal amount thereof;
(e) Liens on Accounts Receivable and other assets of any Receivables Subsidiary arising in connection with any Permitted Accounts Receivable Securitization; and
(a) the Disposition of obsolete or worn out property in the ordinary course of business;
(b) the sale of inventory in the ordinary course of business;
(c) Dispositions permitted by Section 6.03;
(d) the sale or issuance of any Subsidiary's Capital Stock to the Borrower or any Subsidiary;
(a) the Borrower shall fail to pay any principal of any Loan when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or any fee or any other amount (other than an amount referred to in clause (a) of this Article) payable under this Agreement, when and as the same shall become due and payable, and such failure shall continue unremedied for a period of five Business Days;
(c) any representation or warranty made or deemed made by or on behalf of the Borrower or any Subsidiary in or in connection with this Agreement or any amendment or modification hereof or waiver hereunder, or in any report, certificate, financial
(d) the Borrower shall fail to observe or perform any covenant, condition or agreement contained in Section 5.02, 5.03 (with respect to the Borrower's existence) or 5.08 or in Article VI;
(e) the Borrower shall fail to observe or perform any covenant, condition or agreement contained in this Agreement (other than those specified in clause (a), (b) or (d) of this Article), and such failure shall continue unremedied for a period of 30 days after notice thereof from the Administrative Agent to the Borrower (which notice will be given at the request of any Lender);
(f) the Borrower or any Subsidiary shall fail to make any payment (whether of principal or interest and regardless of amount) in respect of any Material Indebtedness, when and as the same shall become due and payable;
(h) an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of the Borrower or any Subsidiary or its debts, or of a substantial part of its assets, under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any Subsidiary or for a substantial part of its assets, and, in any such case, such proceeding or petition shall continue undismissed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered;
(i) the Borrower or any Subsidiary shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or other relief under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter
in effect, (ii) consent to the institution of, or fail to contest in a timely
and appropriate manner, any proceeding or petition described in clause (h) of
this Article, (iii) apply for or consent to the appointment of a receiver,
trustee, custodian, sequestrator, conservator or similar official for the
Borrower or any Subsidiary or for a substantial part of its assets, (iv) file an
answer admitting the material allegations of a petition filed against it in any
such proceeding, (v) make a general assignment for the benefit of creditors or
(vi) take any action for the purpose of effecting any of the foregoing;
(j) the Borrower or any Subsidiary shall become unable, admit in writing its inability or fail generally to pay its debts as they become due;
(k) one or more judgments for the payment of money in an aggregate amount in excess of $5,000,000 shall be rendered against the Borrower, any Subsidiary or any combination thereof and the same shall remain undischarged for a period of 60 consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of the Borrower or any Subsidiary to enforce any such judgment;
(l) an ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred, could reasonably be expected to result in a Material Adverse Effect; or
(m) a Change in Control shall occur;
then, and in every such event (other than an event with respect to the Borrower
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Borrower, take either or
both of the following actions, at the same or different times: (i) terminate
the Commitments, and thereupon the Commitments shall terminate immediately, and
(ii) declare the Loans then outstanding to be due and payable in whole (or in
part, in which case any principal not so declared to be due and payable may
thereafter be declared to be due and payable), and thereupon the principal of
the Loans so declared to be due and payable, together with accrued interest
thereon and all fees and other obligations of the Borrower accrued hereunder,
shall become due and payable immediately, without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by the Borrower; and
in case of any event with respect to the Borrower described in clause (h) or (i)
of this Article, the Commitments shall automatically terminate and the principal
of the Loans then outstanding, together with accrued interest thereon and all
fees and other obligations of the Borrower accrued hereunder, shall
automatically become due and payable, without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Borrower.
ARTICLE VIII
Each bank serving as an Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not an Agent, and each such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent hereunder.
The Syndication Agent and the Documentation Agent, in their capacities
as such, shall have no duties, obligations or liabilities of any kind hereunder.
The Administrative Agent shall not have any duties or obligations except those
expressly set forth herein. Without limiting the generality of the foregoing,
(a) no Agent shall be subject to any fiduciary or other implied duties,
regardless of whether a Default has occurred and is continuing, (b) the
Administrative Agent shall not have any duty to take any discretionary action or
exercise any discretionary powers, except discretionary rights and powers
expressly contemplated hereby that the Administrative Agent is required to
exercise in writing by the Required Lenders (or such other number or percentage
of the Lenders as shall be necessary under the circumstances as provided in
Section 9.02), (c) except as expressly set forth herein, the Administrative
Agent shall not have any duty to disclose, and shall not be liable for the
failure to disclose, any information relating to the Borrower or any of its
Subsidiaries that is communicated to or obtained by the bank serving as
Administrative Agent or any of its Affiliates in any capacity and (d) the
Administrative Agent will upon becoming aware of the occurrence of a Default
give notice of such Default to each Lender. The Administrative Agent shall not
be liable for any action taken or not taken by it with the consent or at the
request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as provided in Section
9.02) or in the absence of its own gross negligence or wilful misconduct. The
Administrative Agent shall be deemed not to have knowledge of any Default unless
and until written notice thereof is given to the Administrative Agent by the
Borrower or a Lender, and the Administrative Agent shall not be responsible for
or have any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with this Agreement, (ii) the contents
of any certificate, report or other document delivered hereunder or in
connection herewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth herein, (iv) the
validity, enforceability, effectiveness or genuineness of this Agreement or
any other agreement, instrument or document, or (v) the satisfaction of any
condition
set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the Administrative Agent may
resign at any time by notifying the Lenders and the Borrower. Upon any such
resignation, the Required Lenders shall have the right, in consultation with the
Borrower, to appoint a successor. If no successor shall have been so
appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the retiring Administrative Agent gives notice of its
resignation, then the retiring Administrative Agent may, on behalf of the
Lenders, appoint a successor Administrative Agent which shall be a bank with an
office in New York, New York, or an Affiliate of any such bank. Upon the
acceptance of its appointment as Administrative Agent hereunder by a
successor, such successor shall succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Administrative Agent, and
the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder. The fees payable by the Borrower to a successor
Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrower and such successor. After the
Administrative Agent's resignation hereunder, the provisions of this Article and
Section 9.03 shall continue in effect for the benefit of such retiring
Administrative Agent, its sub-agents and their respective Related Parties in
respect of any actions taken or omitted to be taken by any of them while it was
acting as Administrative Agent.
Each Lender acknowledges that it has, independently and without reliance upon any Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement.
Each Lender also acknowledges that it will, independently and without reliance upon any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder.
ARTICLE IX
(a) if to Olin at:
501 Merritt 7
P.O. Box 4500
Norwalk, Connecticut 06851-4500
Tel: 203-750-2610
Fax: 203-750-3231
Attention: Treasurer
with a copy to:
501 Merritt 7
P.O. Box 4500
Norwalk, Connecticut 06851-4500
Tel: 203-750-3126
Fax: 203-750-3018
Attention: Secretary
(b) If to the Company, at:
501 Merritt 7
P.O. Box 5204
Norwalk, Connecticut 06856-5204
Tel: 203-229-3881
Fax: 203-229-3162
Attention: Treasurer
with a copy to:
501 Merritt 7
P.O. Box 5204
Norwalk, Connecticut 06856-5204
Tel: 203-229-2683
Fax: 203-229-3292
Attention: Secretary
(c) if to the Administrative Agent, to:
The Chase Manhattan Bank
Loan and Agency Services Group
One Chase Manhattan Plaza, 8th Floor
New York, New York 10081
Attention of Dan Fischer
(Telecopy No. 212-582-5777)
with a copy to:
The Chase Manhattan Bank
270 Park Avenue
New York 10017
Attention of Leland A. Harrs
(Telecopy No.212-270-7935);
(d) if to any other Lender, to it at its address (or telecopy number) set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other communications hereunder by notice to the other parties hereto. All notices and other communications given to any party hereto in accordance with the provisions of this Agreement shall be deemed to have been given on the date of receipt.
(a) No failure or delay by the Administrative Agent or any Lender in exercising any right or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent and the Lenders hereunder are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by the Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the
generality of the foregoing, the making of a Loan shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender may have had notice or knowledge of such Default at the time.
(a) The Borrower shall pay (i) all reasonable out-of-pocket expenses incurred by the Administrative Agent and its Affiliates, including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, in connection with the syndication of the credit facilities provided for herein, the preparation and administration of this Agreement or any amendments, modifications or waivers of the provisions hereof (whether or not the transactions contemplated hereby or thereby shall be consummated) and (ii) all out-of-pocket expenses incurred by the Administrative Agent or any Lender, including the fees, charges and disbursements of counsel for the Administrative Agent or such Lender, in connection with the enforcement or protection of its rights in connection with this Agreement, including its rights under this Section, or in connection with the Loans made hereunder, including all such out- of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans.
(d) To the extent permitted by applicable law, the Borrower shall not assert, and hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable promptly after written demand therefor.
(a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that, other than as part of the Company Closing, the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by the Borrower without such consent shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
warranties or representations made in or in connection with this Agreement, or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement, any other Loan Document or any other instrument or document furnished pursuant hereto, or the financial condition of the Borrower or any of its Subsidiaries or the performance or observance by the Borrower or any of its Subsidiaries of any of its obligations under this Agreement, any Loan Document or any other instrument or document furnished pursuant hereto, (3) such assignee represents and warrants that it is legally authorized to enter into such Assignment and Acceptance; (4) such assignee confirms that it has received a copy of this Agreement, together with copies of the most recent financial statements referred to in Section 3.04 or delivered pursuant to Section 5.01 and such other documents and information as it has been deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (5) such assignee will independently and without reliance upon any Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (6) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by the terms hereof, together with such powers as are reasonably incidental thereto, and (7) such assignee agrees that it will perform in accordance with their terms all the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by paragraph
(b) of this Section, the Administrative Agent shall accept such Assignment and
Acceptance and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(f) A Participant shall not be entitled to receive any greater payment under Section 2.13 or 2.15 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Borrower's prior written consent. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 2.15 unless the Borrower is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Borrower, to comply with Section 2.15(e) as though it were a Lender.
expired or terminated. The provisions of Sections 2.13, 2.14, 2.15 and 9.03 and Article VIII shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby, the repayment of the Loans and the Commitments or the termination of this Agreement or any provision hereof.
(a) This Agreement shall be construed in accordance with and governed by the law of the State of New York.
(b) The Borrower hereby irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of the Supreme Court of the State of New York sitting in New York County and of the United States District Court of the Southern District of New York, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State or, to the extent permitted by law, in such Federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement shall affect any right that the Administrative Agent or any Lender may otherwise have to bring any action or proceeding relating to this Agreement against the Borrower or its properties in the courts of any jurisdiction.
(c) The Borrower hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement in any court referred to in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 9.01. Nothing in this Agreement will affect the right of any party to this Agreement to serve process in any other manner permitted by law.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.
OLIN CORPORATION
By: /s/ Janet M. Pierpont
--------------------------------------
Name: Janet M. Pierpont
Title: Vice President and Treasurer
|
ARCH CHEMICALS, INC.
By: /s/ Sarah A. O'Connor
------------------------------------
Name: Sarah A. O'Connor
Title: Vice President and Assistant Secretary
|
THE CHASE MANHATTAN BANK,
individually and as Administrative Agent,
By: /s/ Laurie B. Perper
---------------------------------------
Name: Laurie B. Perper
Title: Vice President
|
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
individually and as Syndication Agent,
By: /s/ Eileen C. Higgins
--------------------------------------
Name: Eileen C. Higgins
Title: Vice President
|
WACHOVIA BANK, N.A.,
individually and as Documentation Agent,
By: /s/ John C. Coffin
----------------------------------------
Name: John C. Coffin
Title: Senior Vice President
|
THE BANK OF NEW YORK
By: /s/ Kenneth P. Sneider, Jr.
------------------------------------
Name: Kenneth P. Sneider, Jr.
Title: Vice President
|
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Tom Dao
------------------------------------------
Name: Tom Dao
Title: Corporate Banking Officer
|
FIRST UNION NATIONAL BANK
By: /s/ James J. McKenna
------------------------------------------
Name: James J. McKenna
Title: Executive Vice President
|
FLEET NATIONAL BANK
By: /s/ Barbara Agostini Keegan
----------------------------------
Name: Barbara Agostini Keegan
Title: Vice President
|
SUNTRUST BANK, ATLANTA
By: /s/ W. David Wisdom
----------------------------------
Name: W. David Wisdom
Title: Group Vice President
By: /s/ Laura G. Harrison
------------------------------------
Name: Laura G. Harrison
Title: Assistant Vice President
|
ABN AMRO BANK N.V.
By: /s/ George Dugan
--------------------------------------
Name: George Dugan
Title: Vice President
By: /s/ Patricia Christy
-----------------------------------------
Name: Patricia Christy
Title: Corporate Banking Officer
|
BBL INTERNATIONAL (U.K.) LIMITED
By: /s/ C.F. Wright
-----------------------------------------
Name: C.F. Wright
Title: Authorised Signatory
By: /s/ M. E. Eertmans
-----------------------------------------
Name: M. E. Eertmans
Title: Authorised Signatory
|
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Donald V. Davis
----------------------------------------
Name: Donald V. Davis
Title: Vice President
|
STATE STREET BANK AND TRUST COMPANY
By: /s/ Monica M. Sheehan
---------------------
Name: Monica M. Sheehan
Title: Vice President
|
Lender Commitment
------ ----------
The Chase Manhattan Bank $ 15,000,000
Bank of America National Trust and
Savings Association $ 15,000,000
Wachovia Bank, N.A. $ 15,000,000
The Bank of New York $ 10,000,000
The First National Bank of Chicago $ 10,000,000
First Union National Bank $ 10,000,000
Fleet National Bank $ 10,000,000
SunTrust Bank, Atlanta $ 10,000,000
ABN Amro Bank N.V. $ 7,500,000
BBL International (U.K.) Limited $ 7,500,000
PNC Bank, National Association $ 7,500,000
State Street Bank and Trust Company $ 7,500,000
------------
Total $125,000,000
|
Schedule 3.06
-------------
|
No matters other than those matters heretofore disclosed in the Form 10 or in Olin's Annual Report on Form 10-K for the year ended December 31, 1997 and its Quarterly Reports on Form 10-Q for the quarters ended March 31, June 30 and September 30, 1998
Amount Maturity
------ --------
(i) Etoxyl (Venezuela) $5,515,343 Monthly installments of
$45,961 commencing April
1, 1999 though 2009
(ii) Kimya (Turkey) $1,675,000 September 3, 2000
(iii) Louisiana IDB/*/ $1,000,000 March 1, 2008
|
/*/ The Louisiana IDB is an obligation of Olin. It is listed as "Indebtedness" because it is secured by a lien on property to be transferred (subject to this lien) to Arch as part of the Spin-Off.
None, except liens in connection with the Louisiana IDB./ */
/*/ The Louisiana IDB is an obligation of Olin. It is listed as a "Lien" because it is secured by a lien on property to be transferred (subject to this lien) to Arch as part of the Spin-Off.
EXHIBIT A
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement dated as of January 27, 1999 (as amended and in effect on the date hereof, the "Credit Agreement"), among Arch Chemicals, Inc., Olin Corporation, the Lenders and Agents named therein and The Chase Manhattan Bank, as Administrative Agent for the Lenders. Terms defined in the Credit Agreement are used herein with the same meanings.
The Assignor named on the reverse hereof hereby sells and assigns, without recourse, to the Assignee named on the reverse hereof, and the Assignee hereby purchases and assumes, without recourse, from the Assignor, effective as of the Assignment Date set forth on the reverse hereof, the interests set forth on the reverse hereof (the "Assigned Interest") in the Assignor's rights and obligations under the Credit Agreement, including, without limitation, the interests set forth on the reverse hereof in the Commitment of the Assignor on the Assignment Date and Competitive Loans and Revolving Loans owing to the Assignor which are outstanding on the Assignment Date, but excluding accrued interest and fees to and excluding the Assignment Date. The Assignee hereby acknowledges receipt of a copy of the Credit Agreement. From and after the Assignment Date (i) the Assignee shall be a party to and be bound by the provisions of the Credit Agreement and, to the extent of the Assigned Interest, have the rights and obligations of a Lender thereunder and (ii) the Assignor shall, to the extent of the Assigned Interest, relinquish its rights and be released from its obligations under the Credit Agreement.
This Assignment and Acceptance is being delivered to the Administrative Agent together with (i) if the Assignee is a Foreign Lender, any documentation required to be delivered by the Assignee pursuant to Section 2.15(e) of the Credit Agreement, duly completed and executed by the Assignee, and (ii) if the Assignee is not already a Lender under the Credit Agreement, an Administrative Questionnaire in the form supplied by the Administrative Agent, duly completed by the Assignee. The [Assignee/Assignor] shall pay the fee payable to the Administrative Agent pursuant to Section 9.04(b) of the Credit Agreement.
This Assignment and Acceptance shall be governed by and construed in accordance with the laws of the State of New York.
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of Assignment
("Assignment Date"):
=================================================================================================================================
Principal Amount As- Percentage Assigned of Facility/Commitment
signed (and identifying (set forth, to at least 8 decimals, as a
information as to percentage of the Facility and the
Facility individual Competitive Loans) aggregate Commitments of all Lenders
-------- ----------------- thereunder)
---------
--------------------------------------------------------------------------------------------------------------------------------
Commitment Assigned: $ %
--------------------------------------------------------------------------------------------------------------------------------
Revolving Loans:
--------------------------------------------------------------------------------------------------------------------------------
Competitive Loans:
================================================================================================================================
|
The terms set forth above and on the reverse side hereof are hereby agreed to:
By: ______________________________
Name:
Title:
By: ______________________________
Name:
Title:
The undersigned hereby consent to the within assignment:
[Name of Borrower], The Chase Manhattan Bank,
as Administrative Agent,
By: ______________________ By:
__________________________
Name: Name:
Title: Title:
|
EXHIBIT B
OPINION OF COUNSEL FOR THE BORROWER
[Closing Date]
To the Lenders and the Administrative
Agent Referred to Below
c/o The Chase Manhattan Bank, as
Administrative Agent
270 Park Avenue
New York, New York 10017
Dear Sirs:
We have examined originals or copies, certified or otherwise identified to our satisfaction, of such documents, corporate records, certificates of public officials and other instruments and have conducted such other investigations of fact and law as we have deemed necessary or advisable for purposes of this opinion.
Upon the basis of the foregoing, we are of the opinion that:
1. Each of the Loan Parties (a) is a corporation duly organized,
validly existing and in good standing under the laws of Virginia/1/, (b) has
all requisite power and authority to carry on its business as now conducted and
(c) except where the failure to do so, individually or in the aggregate, could
not reasonably be expected to result in a Material Adverse Effect, is qualified
to do business in, and is in good standing in, every jurisdiction where such
qualification is required.
/1/ Virginia counsel opinion
2. The Transactions are within each Loan Party's corporate powers and have been duly authorized by all necessary corporate and, if required, stockholder action. The Credit Agreements and promissory notes issued pursuant thereto have been duly executed and delivered by each Loan Party which is a party thereto and each constitutes a legal, valid and binding obligation of each Loan Party which is a party thereto, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors' rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
3. The Transactions (a) do not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except such as have been obtained or made and are in full force and effect, (b) will not violate any applicable law or regulation or the charter, by-laws or other organizational documents of either Loan Party or any of their respective Subsidiaries or any order of any Governmental Authority, (c) will not violate or result in a default under any indenture, agreement or other instrument binding upon either Loan Party or any of their respective Subsidiaries or their assets, or give rise to a right thereunder to require any payment to be made by either Loan Party or any of their respective Subsidiaries, and (d) will not result in the creation or imposition of any Lien on any asset of either Loan Party or any of their respective Subsidiaries.
4. There are no actions, suits or proceedings by or before any arbitrator or Governmental Authority pending against or, to our knowledge, threatened against or affecting either Loan Party or any of their respective Subsidiaries (a) as to which there is a reasonable possibility of an adverse determination and that, if adversely determined, could reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect (other than the Disclosed Matters) or (b) that involve the Credit Agreements or the Transactions.
5. No Loan Party nor any of their respective Subsidiaries is (a) an "investment company" as defined in, or subject to regulation under, the Investment Company Act of 1940 or (b) a "holding company" as defined in, or subject to regulation under, the Public Utility Holding Company Act of 1935.
We are members of the bar of the State of New York and the foregoing opinion is limited to the laws of the State of New York and the Federal laws of the United States of America. This opinion is rendered solely to you in connection with the above matter. This opinion may not be relied upon by you for any other purpose or relied upon by any other Person (other than your successors and assigns as Lenders) without our prior written consent.
Very truly yours,
EXHIBIT C
Arch Chemicals, Inc.
501 Merritt 7
Norwalk, Connecticut 06856
Attention: Treasurer
The Chase Manhattan Bank, as Administrative Agent
under the 364-Day Credit Agreement referred to below
270 Park Avenue
New York, New York 10017
Attention: ______________
Gentlemen:
This Agreement may be executed by one or more of the parties to this Agreement on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument.
[Remainder of this page intentionally left blank]
This Extension Agreement shall be governed by and construed in accordance with the laws of the State of New York.
[NAMES OF LENDERS]
By: ______________________
Name:
Title:
Agreed and accepted:
ARCH CHEMICALS, INC.
By: _______________________
Name:
Title:
THE CHASE MANHATTAN BANK, as Administrative Agent
By: ________________________
Name:
Title:
EXHIBIT D
OLIN CREDIT AGREEMENT
AFFIRMATIVE COVENANTS, NEGATIVE COVENANTS
AND DEFINED TERMS
COMPOSITE CONFORMED COPY
As amended by (i) Letter dated April 11, 1995,
effective May 1, 1995, (ii) Letter dated October
26, 1996, effective October 31, 1996, (iii) Third
Letter Amendment dated and effective November 12,
1997 and (iv) Fourth Letter Amendment dated and
effective November 12, 1997
U.S. $250,000,000
CREDIT AGREEMENT
Dated as of September 30, 1993
Among
OLIN CORPORATION
and
THE BANKS NAMED HEREIN
9/30/93
ARTICLE V
(d) [Intentionally left blank.]
(i) as soon as available and in any event within 60 days after the end of each of the first three quarters of each year, balance sheets of the Borrower and the Subsidiaries, on a consolidated basis, as of the end of such quarter and statements of income and retained earnings and cash flow of the Borrower and the Subsidiaries, on a consolidated basis, for the period commencing at the end of the previous year and ending with the end of such quarter, certified by the chief financial officer of the Borrower, subject to audit and year end adjustments;
(ii) as soon as available and in any event within 120 days after the end of each year, a copy of the balance sheets of the Borrower and the Subsidiaries, on a consolidated basis, as of the end of such year and the statements of income and retained earnings and cash flow of the Borrower and the Subsidiaries, on a consolidated basis, for such year, certified by KPMG Peat Marwick or another independent nationally recognized firm of public accountants;
(iii) as soon as possible and in any event within ten days after an officer of the Borrower becomes aware of the occurrence of each Event of Default (and each event which, with the giving of notice or lapse of time, or both, would constitute an Event of Default), an Officer's Certificate setting forth details of such Event of Default or event and the action which the Borrower has taken and proposes to take with respect thereto;
(iv) contemporaneously with each delivery of the statements referred to in clauses (i) and (ii) above, (A) either an Officer's Certificate stating that no Event of Default (other than by reason of non-compliance with the covenants referred to in Sections 5.01(b), (c) and (d) and no event which, with the giving of notice or lapse of time, or both, would constitute an Event of Default (other than by reason of non-compliance with the covenants referred to in Sections 5.01(b), (c) and (d)) occurred during such quarter or, if applicable, an Officer's Certificate pursuant to clause (iii) above, (B) an Officer's Certificate stating that, as of the last day of the preceding quarter, and to the best of his or her knowledge, at all times during the preceding quarter, the Borrower was in compliance with the covenants referred to in Sections 5.01(b), (c) and (d) and providing reasonable details of the calculations evidencing the Borrower's compliance with such covenants and (C) reasonable details of each material change in generally accepted accounting principles from those applied in preparing the statements referred to in Section 4.01(e) insofar as such changes are applicable to the statements referred to in clauses (i) and (ii) above;
(v) promptly after the sending or filing thereof, copies of all reports which the Borrower sends to any of its shareholders, and copies of all reports and registration statements which the Borrower or any Subsidiary files with the Securities and Exchange Commission or any national securities exchange (other than those pertaining to employee benefit plans); and
(vi) such other information respecting the condition or operations, financial or otherwise, of the Borrower or any Subsidiary as any Lender may from time to time reasonably request.
(i) Liens for taxes not yet due or which are being contested in good faith by appropriate proceedings,
(ii) other Liens incidental to the conduct of its business or the ownership of its property and assets which were not incurred in connection with the borrowing of money or the obtaining of advances or credit, and which do not in the aggregate materially detract from the value of its property or assets or materially impair the use thereof in the operation of its business,
(iii) Liens on property or assets of a Domestic Subsidiary to secure obligations of such Subsidiary to the Borrower or another Domestic Subsidiary,
becomes a Subsidiary or at the time such Funded or Current Debt is incurred by the Borrower or any Subsidiary or is renewed, extended or refunded,
(vii) Liens incurred in connection with any Tax-Exempt Financing which do not in the aggregate materially detract from the value of the property or assets affected thereby or materially impair the use of such property or assets in the operation of its business,
(ix) Liens in favor of the Olin-DNT Limited Partnership, a Delaware limited partnership, or Air Products and Chemicals, Inc., a Delaware corporation, or any of their respective successors and assigns, securing obligations relating to lease agreements entered into with respect to a demonstration DNT plant and a commercial DNT plant as set forth in and pursuant to Precautionary Security Agreements to be filed and recorded in the appropriate records of Calcasieu Parish, Louisiana with respect to the property referred to therein, and with respect to real estate assets referred to therein not to exceed in the aggregate fifteen acres of Borrower's real estate, and extensions and renewals of such liens.
(i) Funded Debt of the Borrower or any Foreign Subsidiary and Funded Debt of any Domestic Subsidiary of the type referred to in clause (ii) below if, immediately after giving effect thereto and to the concurrent repayment of any other Funded Debt, (A) Consolidated Senior Funded Debt shall not exceed an
(iii) Current Debt of the Borrower or any Foreign Subsidiary, and
(iv) Funded or Current Debt of any Domestic Subsidiary to the Borrower or any other Domestic Subsidiary.
notice or lapse of time, or both, would constitute an Event of Default would exist, (B) the surviving or acquiring entity is a corporation organized under the laws of one of the United States and (C) the surviving or acquiring corporation if other than the Borrower, expressly assumes the performance of all the obligations of the Borrower under this Agreement and the Notes.
(d) [Intentionally Left Blank.]
DEFINITIONS AND ACCOUNTING TERMS
consolidated surplus, whether capital or earned, of the Borrower and its
Subsidiaries, less (i) repurchased capital stock of all classes of the Borrower,
(ii) unamortized Debt discount and expense, goodwill, trademarks, brand names,
patents and other intangible assets, other than unamortized Debt discount and
expense, goodwill, trademarks, brand names, patents and other intangible assets
which are included on the Borrower's consolidated balance sheet dated June 30,
1986, and (iii) any write-up of the value of any assets (other than an
allocation of purchase price in an acquisition) after June 30, 1986; all as
determined in accordance with generally accepted accounting principles.
meaning of Section 414 of the Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated and rulings issued thereunder.
(a) any obligation payable more than one year from the date of creation thereof, which under generally accepted accounting principles is shown on the balance sheet as a liability (excluding reserves for deferred income taxes and deferred incentive awards and other reserves to the extent that such other reserves do not constitute an obligation),
(b) amounts equal to the aggregate net rentals (after making allowance for any interest, taxes or other expenses included therein), payable more than one year from the date of the creation thereof under any lease (whether or not such rentals accrue and become payable only on an annual or other periodic basis) which lease (i) constitutes the substantial equivalent of a purchase of the property subject to such lease, (ii) has an initial term materially less than the useful life of such property and provides that the lessee has the option to renew such lease for the remaining useful life of such property at a rental which at the inception of such lease appears to be substantially less than the fair rental value of such property, or (iii) provides an option to the lessee to acquire the property subject to such lease at a price which at the inception of such lease, appears to be substantially less
than the probable fair value of such property at the time or times of permitted acquisition by the lessee.
(c) non-recourse obligations secured by any Lien, if such obligations (were they recourse) would be Funded Debt,
(d) guarantees, endorsements (other than endorsements of negotiable instruments for collection in the ordinary course of business) and other contingent liabilities (whether direct or indirect) with respect to the Funded Debt, stock or dividends of any Person,
(e) obligations under any contract providing for the making of loans, advances or capital contributions to any Person, or for the purchase of any property from any Person, in each case in order to enable such Person, and such contract (or any related document) by its terms provides that its purpose is, to maintain working capital, net worth or any other balance sheet condition or to pay debts, dividends or expenses constituting Funded Debt,
(f) obligations under any contract for the purchase of materials, supplies or other property if such contract (or any related document) requires that payment for such materials, supplies or other property shall be made regardless of whether or not delivery of such materials, supplies or other property is ever made or tendered,
(g) obligations under any contract to rent or lease (as lessee) any real or personal property if such contract (or any related document) provides that the obligation to make payments thereunder is absolute and unconditional under conditions not customarily found in commercial leases then in general use or requires that the lessee purchase or otherwise acquire securities or obligations of the lessor,
(h) obligations under any contract for the sale or use of materials, supplies or other property if such contract (or any related document) requires that payment for such materials, supplies or other property, or the use thereof, shall be subordinated to any indebtedness (of the purchaser or user of such materials, supplies or other property) owed or to be owed to any Person, and
(i) obligations under any other contract which, in economic effect, is substantially equivalent to a guarantee of Funded Debt of any Person and shall appear as a contingent liability on the consolidated balance sheet of the Borrower and its Subsidiaries or in any notes related thereto;
is limited to a fixed or determinable monetary amount of indebtedness (either for borrowed money or of the character referred to in clause (ii) of Section 5.02(b)) in such monetary amount (expressed in dollars or, if in a currency other than dollars as converted into dollars in a manner approved by the Borrower's independent public accountants), or (B) in the event that such liability is not so limited, the full amount (or such lesser portion thereof as shall represent the obligor's proportionate commitment) of indebtedness (either for borrowed money or of the character referred to in clause (ii) of Section 5.02(b)) then owed by the Person whose obligations are being so guaranteed or endorsed, or by the Person with respect to whose obligations or dividends such obligor has a contingent liability or by the Person who is the obligee under any such contract, as the case may be.
(A) the Borrower may not select any Interest Period which ends after the Termination Date;
(B) Interest Periods commencing on the same date for A Advances comprising part of the same Borrowing shall be of the same duration; and
subsidiary of the Borrower in any such annual report thereafter filed by the Borrower with the Securities and Exchange Commission.
of Subtitle E of Title IV of ERISA.
EXHIBIT 10.2
Conformed Copy
Five-Year
CREDIT AGREEMENT
dated as of
January 27, 1999
among
ARCH CHEMICALS, INC.,
OLIN CORPORATION,
The Lenders Party Hereto,
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Syndication Agent,
WACHOVIA BANK, N.A., as Documentation Agent
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
CHASE SECURITIES INC.,
as Arranger
TABLE OF CONTENTS
Page
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ARTICLE I
Definitions
SECTION 1.01 Defined Terms....................................... 2
SECTION 1.02 Classification of Loans and Borrowings.............. 23
SECTION 1.03 Terms Generally..................................... 23
SECTION 1.04 Accounting Terms; GAAP.............................. 24
ARTICLE II
The Credits
SECTION 2.01 Commitments......................................... 24
SECTION 2.02 Loans and Borrowings................................ 24
SECTION 2.03 Requests for Revolving Borrowings................... 25
SECTION 2.04 Competitive Bid Procedure........................... 26
SECTION 2.05 Swingline Loans..................................... 28
SECTION 2.06 Letters of Credit................................... 30
SECTION 2.07 Funding of Borrowings............................... 34
SECTION 2.08 Interest Elections.................................. 35
SECTION 2.09 Termination and Reduction of Commitments............ 37
SECTION 2.10 Repayment of Loans; Evidence of Debt................ 37
SECTION 2.11 Prepayment of Loans................................. 38
SECTION 2.12 Fees................................................ 39
SECTION 2.13 Interest............................................ 40
SECTION 2.14 Alternate Rate of Interest.......................... 41
SECTION 2.15 Increased Costs..................................... 42
SECTION 2.16 Break Funding Payments.............................. 43
SECTION 2.17 Taxes............................................... 44
SECTION 2.18 Payments Generally; Pro Rata Treatment; Sharing
of Set-offs......................................... 46
SECTION 2.19 Mitigation Obligations; Replacement of Lenders...... 47
ARTICLE III
Representations and Warranties
SECTION 3.01 Organization; Powers................................. 48
SECTION 3.02 Authorization; Enforceability........................ 49
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Page
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SECTION 3.03 Governmental Approvals; No Conflicts................ 49
SECTION 3.04 Financial Condition; No Material Adverse
Change.............................................. 49
SECTION 3.05 Properties.......................................... 50
SECTION 3.06 Litigation and Environmental Matters................ 50
SECTION 3.07 Compliance with Laws and Agreements................. 51
SECTION 3.08 Investment and Holding Company Status............... 51
SECTION 3.09 Taxes............................................... 51
SECTION 3.10 ERISA............................................... 51
SECTION 3.11 Disclosure.......................................... 51
SECTION 3.12 Year 2000........................................... 52
SECTION 3.13 No Default.......................................... 52
SECTION 3.14 Federal Regulations................................. 52
SECTION 3.15 Labor Matters....................................... 52
SECTION 3.16 Options............................................. 52
SECTION 3.17 Insurance........................................... 53
ARTICLE IV
Conditions
SECTION 4.01 Loans to Olin....................................... 53
SECTION 4.02 Loans to the Company................................ 54
SECTION 4.03 Each Credit Event................................... 55
ARTICLE V
Affirmative Covenants
SECTION 5.01 Financial Statements; Ratings Change
and Other Information............................... 56
SECTION 5.02 Notices of Material Events.......................... 57
SECTION 5.03 Existence; Conduct of Business...................... 58
SECTION 5.04 Payment of Obligations.............................. 59
SECTION 5.05 Maintenance of Properties; Insurance................ 59
SECTION 5.06 Books and Records; Inspection Rights................ 59
SECTION 5.07 Compliance with Laws................................ 59
SECTION 5.08 Use of Proceeds and Letters of Credit............... 59
SECTION 5.09 Environmental Laws.................................. 59
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Page
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ARTICLE VI
Negative Covenants
SECTION 6.01 Indebtedness........................................ 60
SECTION 6.02 Liens............................................... 61
SECTION 6.03 Fundamental Changes................................. 62
SECTION 6.04 Hedging Agreements.................................. 62
SECTION 6.05 Restricted Payments................................. 62
SECTION 6.06 Transactions with Affiliates........................ 62
SECTION 6.07 Disposition of Property............................. 63
SECTION 6.08 Payments and Modifications of Certain Debt
Instruments......................................... 63
SECTION 6.09 Sales and Leasebacks................................ 64
SECTION 6.10 Changes in Fiscal Periods........................... 64
SECTION 6.11 Lines of Business................................... 64
SECTION 6.12 Financial Covenants................................. 64
SECTION 6.13 Olin Affirmative and Negative Covenants............. 64
ARTICLE VII
Events of Default
ARTICLE VIII
The Administrative Agent, Syndication Agent and Documentation Agent
ARTICLE IX
Miscellaneous
SECTION 9.01 Notices............................................. 69
SECTION 9.02 Waivers; Amendments................................. 72
SECTION 9.03 Expenses; Indemnity; Damage Waiver.................. 72
SECTION 9.04 Successors and Assigns.............................. 74
SECTION 9.05 Survival............................................ 77
SECTION 9.06 Counterparts; Integration; Effectiveness............ 78
SECTION 9.07 Severability........................................ 78
SECTION 9.08 Right of Setoff..................................... 78
SECTION 9.09 Governing Law; Jurisdiction; Consent to Service
of Process.......................................... 78
SECTION 9.10 WAIVER OF JURY TRIAL................................ 79
SECTION 9.11 Headings............................................ 80
|
SECTION 9.12 Confidentiality..................................... 80 SECTION 9.13 Interest Rate Limitation............................ 80 |
WHEREAS, the Company and Olin desire to establish a five year revolving credit facility in the amount of $125,000,000 as provided herein;
WHEREAS, Olin will borrow an amount not to exceed $75,000,000 under this facility on the Olin Closing Date, such funds to be used for Olin's general corporate purposes;
WHEREAS, after such borrowing, Olin will effect the Spin-Off, pursuant to which substantially all of the specialty chemicals businesses of Olin and its subsidiaries will be transferred to the Company and 100% of the shares of capital stock of the Company will be distributed to the owners of Olin's common stock;
WHEREAS, effective upon the consummation of the Company Closing, the Company will assume all of the obligations of Olin hereunder and Olin will be released from such obligations;
WHEREAS, after the Company Closing Date, the Company will use funds available under this facility for its general corporate purposes in the ordinary course of business; and
WHEREAS, on the terms and conditions provided herein, the Lenders are willing to (i) lend up to $75,000,000 to Olin on the Olin Closing Date, (ii) release Olin from its obligations hereunder upon the assumption of such obligations by the Company on the Company Closing Date and (iii) make Loans to the Company from time to time after the Company Closing Date;
NOW, THEREFORE, the parties hereto agree as follows:
========================================================================================================
Consolidated Leverage
---------------------
Ratio ABR Spread Eurodollar Spread Facility Fee Rate
----- ---------- ----------------- -----------------
--------------------------------------------------------------------------------------------------------
less than equal to 0.5 0.0% 0.425 % 0.200 %
--------------------------------------------------------------------------------------------------------
greater than 0.5 and less than equal to 1.5 0.0% 0.525 % 0.225 %
--------------------------------------------------------------------------------------------------------
greater than 1.5 and less than equal to 2.5 0.0% 0.625 % 0.250 %
--------------------------------------------------------------------------------------------------------
greater than 2.5 0.0% 0.950 % 0.300 %
========================================================================================================
|
Debt, as at the end of) the period of four consecutive fiscal quarters of the Borrower ending at the end of the period covered by the relevant financial statements; and
(ii) at all times on and after a Ratings Event, the applicable rate per annum set forth below:
================================================================================
Senior Unsecured
Debt Rating ABR Spread Eurodollar Spread Facility Fee Rate
----------- ----------- ------------------ ------------------
--------------------------------------------------------------------------------
A/A3 0.0% 0.325% 0.175%
--------------------------------------------------------------------------------
BBB+/Baa1 0.0% 0.425% 0.200%
--------------------------------------------------------------------------------
BBB/Baa2 0.0% 0.525% 0.225%
--------------------------------------------------------------------------------
BBB-/Baa3 0.0% 0.625% 0.250%
--------------------------------------------------------------------------------
less than BBB-/Baa3 0.0% 0.950% 0.300%
================================================================================
|
reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 9.04. The initial amount of each Lender's Commitment is set forth on Schedule 2.01, or in the Assignment and Acceptance pursuant to which such Lender shall have assumed its Commitment, as applicable. The initial aggregate amount of the Lenders' Commitments is $125,000,000.
Subsidiary is not at the time permitted by the terms of any Contractual Obligation (other than under any Loan Document) or any law applicable to such Subsidiary.
located, (b) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction in which the Borrower is located and (c) in the case of a Foreign Lender (other than an assignee pursuant to a request by the Borrower under Section 2.19(b)), any withholding tax that is imposed on amounts payable to such Foreign Lender at the time such Foreign Lender becomes a party to this Agreement (or designates a new lending office) or is attributable to such Foreign Lender's failure to comply with Section 2.17(e), except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office (or assignment), to receive additional amounts from the Borrower with respect to such withholding tax pursuant to Section 2.17(a).
any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.
party in respect of letters of credit and letters of guaranty and (j) all obligations, contingent or otherwise, of such Person in respect of bankers' acceptances. The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person's ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor.
the next calendar month, in which case such Interest Period shall end on the next preceding Business Day and (ii) any Interest Period pertaining to a Eurodollar Borrowing that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period. For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and, in the case of a Revolving Borrowing, thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing.
Agreement at any time shall be the maximum aggregate amount (giving effect to any netting agreements) that the Borrower or such Subsidiary would be required to pay if such Hedging Agreement were terminated at such time.
(a) Liens imposed by law for taxes that are not yet due or are being contested in compliance with Section 5.04;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's and other like Liens imposed by law, arising in the ordinary course of business and securing obligations that are not overdue by more than 30 days or are being contested in compliance with Section 5.04;
(c) pledges and deposits made in the ordinary course of business in compliance with workers' compensation, unemployment insurance and other social security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature, and to secure letters of credit in respect thereof, in each case in the ordinary course of business;
(e) judgment liens in respect of judgments that do not constitute an Event of Default under clause (k) of Article VII; and
(f) easements, zoning restrictions, rights-of-way and similar encumbrances on real property imposed by law or arising in the ordinary course of business that do not secure any monetary obligations and do not materially detract from the value of the affected property or interfere with the ordinary conduct of business of the Borrower or any Subsidiary;
engaging in activities in connection with the financing of Accounts Receivable in connection with and pursuant to a Permitted Accounts Receivable Securitization.
included in their respective Revolving Credit Exposures in determining the Required Lenders.
through the public information telephone line of the Federal Reserve Bank of New York (which rate will, under the current practices of the Board, be published in Federal Reserve Statistical Release H.15(519) during the week following such day) or, if such rate is not so reported on such day or such next preceding Business Day, the average of the secondary market quotations for three-month certificates of deposit of major money center banks in New York City received at approximately 10:00 a.m., New York City time, on such day (or, if such day is not a Business Day, on the next preceding Business Day) by the Administrative Agent from three negotiable certificate of deposit dealers of recognized standing selected by it.
refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement and (e) the words "asset" and "property" shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.
(d) Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled to request, or to elect to convert or continue, any Borrowing if the Interest Period requested with respect thereto would end after the Maturity Date.
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing;
(iv) in the case of a Eurodollar Borrowing, the initial Interest Period to be applicable thereto, which shall be a period contemplated by the definition of the term "Interest Period"; and
(v) the location and number of the Borrower's account to which
funds are to be disbursed, which shall comply with the requirements of
Section 2.07.
If no election as to the Type of Revolving Borrowing is specified, then the requested Revolving Borrowing shall be an ABR Borrowing. If no Interest Period is specified with respect to any requested Eurodollar Revolving Borrowing, then the Borrower shall be deemed to have selected an Interest Period of one month's duration. Promptly following receipt of a Borrowing Request in accordance with this Section, the Administrative Agent shall advise each Lender of the details thereof and of the amount of such Lender's Loan to be made as part of the requested Borrowing.
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be a Eurodollar Borrowing or a Fixed Rate Borrowing;
(iv) the Interest Period to be applicable to such Borrowing, which shall be a period contemplated by the definition of the term "Interest Period"; and
(v) the location and number of the Borrower's account to which
funds are to be disbursed, which shall comply with the requirements of
Section 2.07.
Promptly following receipt of a Competitive Bid Request in accordance with this Section, the Administrative Agent shall notify the Lenders of the details thereof by telecopy, inviting the Lenders to submit Competitive Bids.
(b) Each Lender may (but shall not have any obligation to) make one or
more Competitive Bids to the Borrower in response to a Competitive Bid Request.
Each Competitive Bid by a Lender must be in a form approved by the
Administrative Agent and must be received by the Administrative Agent by
telecopy, in the case of a Eurodollar Competitive Borrowing, not later than 9:30
a.m., New York City time, three Business Days before the proposed date of such
Competitive Borrowing, and in the case of a Fixed Rate Borrowing, not later than
9:30 a.m., New York City time, on the proposed date of such Competitive
Borrowing. Competitive Bids that do not conform substantially to the form
approved by the Administrative Agent may be rejected by the Administrative
Agent, and the Administrative Agent shall notify the applicable Lender as
promptly as practicable. Each Competitive Bid shall specify (i) the principal
amount (which shall be a minimum of $5,000,000 and an integral multiple of
$1,000,000 and which may equal the entire principal amount of the Competitive
Borrowing requested by the Borrower) of the Competitive Loan or Loans that the
Lender is willing to make, (ii) the Competitive Bid Rate or Rates at which the
Lender is prepared to make such Loan or Loans (expressed as a percentage rate
per annum in the form of a decimal to no more than four decimal places) and
(iii) the Interest Period applicable to each such Loan and the last day thereof.
(c) The Administrative Agent shall promptly notify the Borrower by telecopy of the Competitive Bid Rate and the principal amount specified in each Competi tive Bid and the identity of the Lender that shall have made such Competitive Bid.
(d) Subject only to the provisions of this paragraph, the Borrower may accept or reject any Competitive Bid. The Borrower shall notify the Administrative Agent
(e) The Administrative Agent shall promptly notify each bidding Lender by telecopy whether or not its Competitive Bid has been accepted (and, if so, the amount and Competitive Bid Rate so accepted), and each successful bidder will thereupon become bound, subject to the terms and conditions hereof, to make the Competitive Loan in respect of which its Competitive Bid has been accepted.
(f) If the Administrative Agent shall elect to submit a Competitive Bid in its capacity as a Lender, it shall submit such Competitive Bid directly to the Borrower at least one quarter of an hour earlier than the time by which the other Lenders are required to submit their Competitive Bids to the Administrative Agent pursuant to paragraph (b) of this Section.
(a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time during the Availability Period, in an aggregate principal amount at any time outstanding that will not
(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such request by telephone (confirmed by telecopy), not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit to the general deposit account of the Borrower with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.06(e), by remittance to the Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
Borrower that are caused by the Issuing Bank's failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or wilful misconduct on the part of the Issuing Bank (as finally determined by a court of competent jurisdiction), the Issuing Bank shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, the Issuing Bank may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.
deemed to refer to such successor or to any previous Issuing Bank, or to such successor and all previous Issuing Banks, as the context shall require. After the replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto and shall continue to have all the rights and obligations of an Issuing Bank under this Agreement with respect to Letters of Credit issued by it prior to such replacement, but shall not be required to issue additional Letters of Credit.
made as provided in Section 2.05. The Administrative Agent will make such Loans available to the Borrower by promptly crediting the amounts so received, in like funds, to an account of the Borrower maintained with the Administrative Agent in New York City and designated by the Borrower in the applicable Borrowing Request or Competitive Bid Request.
(b) Unless the Administrative Agent shall have received notice from a
Lender prior to the proposed date of any Borrowing that such Lender will not
make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender and the Borrower severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount with interest thereon, for
each day from and including the date such amount is made available to the
Borrower to but excluding the date of payment to the Administrative Agent, at
(i) in the case of such Lender, the greater of the Federal Funds Effective Rate
and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation or (ii) in the case of the Borrower,
the interest rate applicable to ABR Loans. If such Lender pays such amount to
the Administrative Agent, then such amount shall constitute such Lender's Loan
included in such Borrowing.
(a) Each Revolving Borrowing initially shall be of the Type specified in the applicable Borrowing Request and, in the case of a Eurodollar Revolving Borrowing, shall have an initial Interest Period as specified in such Borrowing Request. Thereafter, the Borrower may elect to convert such Borrowing to a different Type or to continue such Borrowing and, in the case of a Eurodollar Revolving Borrowing, may elect Interest Periods therefor, all as provided in this Section. The Borrower may elect different options with respect to different portions of the affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders holding the Loans comprising such Borrowing, and the Loans comprising each such portion shall be considered a separate Borrowing. This Section shall not apply to Competitive Borrowings or Swingline Borrowings, which may not be converted or continued.
(b) To make an election pursuant to this Section, the Borrower shall notify the Administrative Agent of such election by telephone by the time that a Borrowing Request would be required under Section 2.03 if the Borrower were requesting a Revolving Borrowing of the Type resulting from such election to be made on the effective date of such election. Each such telephonic Interest Election Request shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the Administrative Agent of a
written Interest Election Request in a form approved by the Administrative Agent and signed by the Borrower.
(c) Each telephonic and written Interest Election Request shall specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies and, if different options are being elected with respect to different portions thereof, the portions thereof to be allocated to each resulting Borrowing (in which case the information to be specified pursuant to clauses (iii) and (iv) below shall be speci fied for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the Interest Period to be applicable thereto after giving effect to such election, which shall be a period contemplated by the definition of the term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does not specify an Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the Administrative Agent shall advise each Lender of the details thereof and of such Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election Request with respect to a Eurodollar Revolving Borrowing prior to the end of the Interest Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of such Interest Period such Borrowing shall be converted to an ABR Borrowing. Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is continuing and the Administrative Agent, at the request of the Required Lenders, so notifies the Borrower, then, so long as an Event of Default is continuing (i) no outstanding Revolving Borrowing may be converted to or continued as a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar Revolving Borrowing shall be converted to an ABR Borrowing at the end of the Interest Period applicable thereto.
(a) Unless previously terminated, the Commitments shall terminate on the Maturity Date.
(a) The Borrower hereby unconditionally promises to pay (i) to the Administrative Agent for the account of each Lender the then unpaid principal amount of each Revolving Loan on the Maturity Date, (ii) to the Administrative Agent for the account of each Lender the then unpaid principal amount of each Competitive Loan on the last day of the Interest Period applicable to such Loan and (iii) to the Swingline Lender or, subject to Section 2.05(c), the Administrative Agent, the then unpaid principal amount of each Swingline Loan on the earlier of the Maturity Date and the first date after such Swingline Loan is made that is the 15th or last day of a calendar month and is at least two Business Days after such Swingline Loan is made.
(b) Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to such Lender resulting from each Loan made by such Lender, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder.
(c) The Administrative Agent shall maintain accounts in which it shall record (i) the amount of each Loan made hereunder, the Class and Type thereof and the Interest Period applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder for the account of the Lenders and each Lender's share thereof.
(e) Any Lender may request that Loans made by it be evidenced by a promissory note. In such event, the Borrower shall prepare, execute and deliver to such Lender a promissory note payable to the order of such Lender (or, if requested by such Lender, to such Lender and its registered assigns) and in a form approved by the Administrative Agent. Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all times (including after assignment pursuant to Section 9.04) be represented by one or more promissory notes in such form payable to the order of the payee named therein (or, if such promissory note is a registered note, to such payee and its registered assigns).
contemplated by Section 2.09, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.09. Promptly following receipt of any such notice relating to a Revolving Borrowing, the Administrative Agent shall advise the Lenders of the contents thereof. Each partial prepayment of any Revolving Borrowing shall be in an amount that would be permitted in the case of an advance of a Revolving Borrowing of the same Type as provided in Section 2.02. Each prepayment of a Revolving Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.13 and any payment required under Section 2.16.
(c) The Borrower shall on the date, if any, specified in Section 6.07(f) repay Loans in the amounts and otherwise in all respects as provided in such Section.
(b) The Borrower agrees to pay (i) to the Administrative Agent for the account of each Lender a participation fee with respect to its participations in Letters of Credit, which shall accrue at the same Applicable Rate as interest on Eurodollar Revolving Loans on the average daily amount of such Lender's LC Exposure (excluding any portion thereof attributable to unreimbursed LC Disbursements) during the period from and including the Effective Date to but excluding the later of the date on which such Lender's Commitment terminates and the date on which such Lender ceases to have any LC Exposure, and (ii) to the Issuing Bank a fronting fee, which shall accrue at the rate or rates per annum separately agreed upon between the Borrower and the Issuing Bank on the average daily amount of the LC Exposure (excluding any portion thereof attributable to unreimbursed LC Disbursements) during the period from and including the Effective Date
(c) The Borrower agrees to pay to the Administrative Agent, for its own account, fees payable in the amounts and at the times separately agreed upon between the Borrower and the Administrative Agent.
(d) All fees payable hereunder shall be paid on the dates due, in immediately available funds, to the Administrative Agent (or to the Issuing Bank, in the case of fees payable to it) for distribution, in the case of facility fees and participation fees, to the Lenders. Fees paid shall not be refundable under any circumstances.
(a) The Loans comprising each ABR Borrowing (including each Swingline Loan) shall bear interest at the Alternate Base Rate plus the Applicable Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear interest
(i) in the case of a Eurodollar Revolving Loan, at the Adjusted LIBO Rate for
the Interest Period in effect for such Borrowing plus the Applicable Rate, or
(ii) in the case of a Eurodollar Competitive Loan, at the LIBO Rate for the
Interest Period in effect for such Borrowing plus (or minus, as applicable) the
Margin applicable to such Loan.
(c) Each Fixed Rate Loan shall bear interest at the Fixed Rate applicable to such Loan.
(d) Notwithstanding the foregoing, if any principal of or interest on any Loan or any fee or other amount payable by the Borrower hereunder is not paid when due, whether at stated maturity, upon acceleration or otherwise, such overdue amount shall bear interest, after as well as before judgment, at a rate per annum equal to (i) in the case of overdue principal of any Loan, 2% plus the rate otherwise applicable to such Loan as provided in the preceding paragraphs of this Section or (ii) in the case of any
other amount, 2% plus the rate applicable to ABR Loans as provided in paragraph
(a) of this Section.
(f) All interest hereunder shall be computed on the basis of a year of 360 days, except that interest computed by reference to the Alternate Base Rate at times when the Alternate Base Rate is based on the Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap year), and in each case shall be payable for the actual number of days elapsed (including the first day but excluding the last day). The applicable Alternate Base Rate, Adjusted LIBO Rate or LIBO Rate shall be determined by the Administrative Agent, and such determination shall be conclusive absent manifest error.
(a) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders (or, in the case of a Eurodollar Competitive Loan, the Lender that is required to make such Loan) that the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in such Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by telephone or telecopy as promptly as practicable thereafter and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that requests the conversion of any Revolving Borrowing to, or continuation of any Revolving Borrowing as, a Eurodollar
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender (except any such reserve requirement reflected in the Adjusted LIBO Rate) or the Issuing Bank; or
(ii) impose on any Lender or the Issuing Bank or the London interbank market any other condition affecting this Agreement, Eurodollar Loans or Fixed Rate Loans made by such Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any Eurodollar Loan or Fixed Rate Loan (or of maintaining its obligation to make any such Loan) or to increase the cost to such Lender or the Issuing Bank of participating in, issuing or maintaining any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender or the Issuing Bank hereunder (whether of principal, interest or otherwise), then the Borrower will pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compen sate such Lender or the Issuing Bank, as the case may be, for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank determines that any Change in Law regarding capital requirements has or would have the effect of reducing the rate of return on such Lender's or the Issuing Bank's capital or on the capital of such Lender's or the Issuing Bank's holding company, if any, as a consequence of this Agreement or the Loans made by, or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by the Issuing Bank, to a level below that which such Lender or the Issuing Bank or such Lender's or the Issuing Bank's holding company could have achieved but for such Change in Law (taking into consideration such Lender's or the Issuing Bank's policies and the policies of such Lender's or the Issuing Bank's holding company with respect to capital adequacy), then from time to time the Borrower will pay to such Lender
or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or the Issuing Bank or such Lender's or the Issuing Bank's holding company for any such reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth the amount or amounts necessary to compensate such Lender or the Issuing Bank or its holding company, as the case may be, as specified in paragraph (a) or (b) of this Section shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender or the Issuing Bank, as the case may be, the amount shown as due on any such certificate within 10 days after receipt thereof.
(e) Notwithstanding the foregoing provisions of this Section, a Lender shall not be entitled to compensation pursuant to this Section in respect of any Competitive Loan if the Change in Law that would otherwise entitle it to such compensation shall have been publicly announced prior to submission of the Competitive Bid pursuant to which such Loan was made.
interest which would have accrued on the principal amount of such Loan had such event not occurred, at the Adjusted LIBO Rate that would have been applicable to such Loan, for the period from the date of such event to the last day of the then current Interest Period therefor (or, in the case of a failure to borrow, convert or continue, for the period that would have been the Interest Period for such Loan), over (ii) the amount of interest which would accrue on such principal amount for such period at the interest rate which such Lender would bid were it to bid, at the commencement of such period, for dollar deposits of a comparable amount and period from other banks in the eurodollar market. A certificate of any Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to this Section shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate within 10 days after receipt thereof.
(b) In addition, the Borrower shall pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent, each Lender and the Issuing Bank, within 10 days after written demand therefor, for the full amount of any Indemnified Taxes or Other Taxes paid by the Administrative Agent, such Lender or the Issuing Bank, as the case may be, on or with respect to any payment by or on account of any obligation of the Borrower hereunder (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section) and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. The Administrative Agent, each Lender and the Issuing Bank will, at the Borrower's expense, cooperate in good faith with the Borrower in any contest as to whether or not such Indemnified Taxes, Other Taxes, penalties, interest or expenses were correctly or legally imposed or asserted in the event such Indemnified Taxes, Other Taxes, penalties, interest or expenses were in the good faith judgment of the Administrative Agent, such Lender or the Issuing Bank, as the
case may be, not legal or not correctly asserted. If in connection with such
contest such Indemnified Taxes, Other Taxes, penalties, interest or expenses are
refunded to the Administrative Agent, such Lender or the Issuing Bank, the
Administrative Agent, such Lender or the Issuing Bank will pay such refund to
the Borrower to the extent the Administrative Agent, such Lender or the Issuing
Bank, determines in its sole discretion that such refund is attributable to any
Indemnified Taxes, Other Taxes, penalties, interest or expenses paid by the
Borrower and to the extent the Borrower has previously indemnified the
Administrative Agent, such Lender or the Issuing Bank therefor pursuant to this
Section 2.17, net of expenses and without interest except any interest (net of
taxes) included in such refund. The Borrower shall return such refund (together
with any taxes, penalties or other charges) in the event the Administrative
Agent, such Lender or the Issuing Bank is required to repay such refund.
Notwithstanding the foregoing, nothing in this Section 2.17 shall be construed
to (i) entitle the Borrower or any other Persons to any information determined
by the Administrative Agent, any Lender or the Issuing Bank, in each case, in
its sole discretion, to be confidential or proprietary information of the
Administrative Agent, any Lender or the Issuing Bank, to any tax or financial
information of the Administrative Agent, any Lender or the Issuing Bank or to
inspect or review any books and records of the Administrative Agent, any Lender
or the Issuing Bank, or (ii) interfere with the rights of the Administrative
Agent, any Lender or the Issuing Bank to conduct its fiscal or tax affairs in
such matter as it deems fit. A certificate as to the amount of such payment or
liability delivered to the Borrower by a Lender or the Issuing Bank, or by the
Administrative Agent on its own behalf or on behalf of a Lender or the Issuing
Bank, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or Other Taxes by the Borrower to a Governmental Authority, the Borrower shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or reduction of withholding tax under the law of the jurisdiction in which the Borrower is located, or any treaty to which such jurisdiction is a party, with respect to payments under this Agreement shall deliver to the Borrower (with a copy to the Administrative Agent), at the time or times prescribed by applicable law, such properly completed and executed documentation prescribed by applicable law or reasonably requested by the Borrower as will permit such payments to be made without withholding or at a reduced rate.
(a) The Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.15, 2.16 or 2.17, or otherwise) prior to 12:00 noon, New York City time, on the date when due, in immediately available funds, without set-off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at its offices at 270 Park Avenue, New York, New York, except payments to be made directly to the Issuing Bank or Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments hereunder shall be made in dollars.
(b) If at any time insufficient funds are received by and available to
the Administrative Agent to pay fully all amounts of principal, unreimbursed LC
Disbursements, letter of credit cash collateral obligations pursuant to
Section 2.06(j), interest and fees then due hereunder, such funds shall be
applied (i) first, towards payment of interest and fees then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
interest and fees then due to such parties, (ii) second, towards payment of
principal and unreimbursed LC Disbursements then due hereunder, ratably among
the parties entitled thereto in accordance with the amounts of principal and
unreimbursed LC Disbursements then due to such parties and (iii) third, to fund
letter of credit cash collateral obligations pursuant to Section 2.06(j).
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Revolving Loans or participations in LC Disbursements or Swingline Loans resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Loans then due and participations in LC Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Loans and participations in LC Disbursements and Swingline Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Loans and participations
(d) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing Bank, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.05(c), 2.06(d) or (e), 2.07(b) or 2.18(d), then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender's obligations under such Sections until all such unsatisfied obligations are fully paid.
(a) If any Lender requests compensation under Section 2.15, or if the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.17, then such Lender shall use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices,
branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.15 or 2.17, as the case may be, in the future and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.
The Borrower represents and warrants to the Lenders that:
(a) Olin has heretofore furnished to the Lenders its consolidated balance sheet and statements of income, stockholders equity and cash flows (i) as of and for the fiscal years ended December 31, 1996 and December 31, 1997 reported on and audited by KPMG Peat Marwick LLP, independent public accountants, and (ii) as of and for the fiscal quarters ended March 31, 1998, June 30, 1998 and September 30, 1998, certified by its chief financial officer. The Company has heretofore furnished to the Lenders its consolidated balance sheet and statements of income, stockholders equity and cash flows (i) as of and for the fiscal years ended December 31, 1996 and December 31, 1997, reported on and audited by KPMG Peat Marwick LLP, independent public accoun tants, and (ii) as of and for the nine-month period ended September 30, 1998, certified by its chief financial officer. All of the foregoing financial statements present fairly, in all material respects, the financial position and results of operations and cash flows of the Borrower and its consolidated Subsidiaries as of such dates and for such periods in accordance with GAAP, subject to year-end audit adjustments and the absence of footnotes in the case of the statements referred to in clause (ii) above.
(b) All financial statements delivered pursuant to clause (a) above, including the related schedules and notes thereto, have been prepared in accordance with
GAAP applied consistently throughout the periods involved. The Borrower and its Subsidiaries do not have any material Guarantee obligations, contingent liabilities and liabilities for Taxes, or any long-term leases or unusual forward or long-term commitments, including any interest rate or foreign currency swap or exchange transaction or other obligation in respect of derivatives, that are not reflected in the most recent financial statements referred to in this Section 3.04.
(c) Since September 30, 1998, there has been no event, development or circumstance that has had or could reasonably be expected to have a Material Adverse Effect on the Borrower and its Subsidiaries.
(a) Each of the Borrower and its Subsidiaries has good title to, or valid leasehold interests in, all its real and personal property material to its business, except for minor defects in title that do not interfere with its ability to conduct its business as currently conducted or to utilize such properties for their intended purposes.
(b) Each of the Borrower and its Subsidiaries owns, or is licensed to use, all trademarks, tradenames, copyrights, patents and other intellectual property material to its business, and the use thereof by the Borrower and its Subsidiaries does not infringe upon the rights of any other Person, except for any such infringements that, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
(a) There are no actions, suits or proceedings by or before any arbitrator or Governmental Authority pending against or, to the knowledge of the Borrower, threatened against or affecting the Borrower or any of its Subsidiaries (i) the reasonably anticipated outcome of which would, individually or in the aggregate, result in a Material Adverse Effect (other than the Disclosed Matters) or (ii) that involve this Agreement or the Transactions.
(b) Except for the Disclosed Matters and except with respect to any other matters that, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect, neither the Borrower nor any of its Subsidiaries (i) has failed to comply with any Environmental Law or to obtain, maintain or comply with any Environmental Permit, (ii) has become subject to any Environmental Liability, (iii) has received notice of any Environmental Claim or (iv) knows of any basis for any Environmental Liability.
(c) Since the date of this Agreement, there has been no change in the status of the Disclosed Matters that, individually or in the aggregate, has resulted in, or could reasonably be expected to result in, a Material Adverse Effect.
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received a favorable written opinions (addressed to the Administrative Agent and the Lenders and dated the Effective Date) of (i) Cravath, Swaine & Moore, counsel for Olin and the Company, (ii) Hunton and Williams, special Virginia counsel for Olin and the Company, and (iii) the General Counsel for Olin and the Company, covering the matters set forth in Exhibit B, and covering such other matters relating to the Borrower, this Agreement or the Transactions as the Required Lenders shall reasonably request. Each of Olin and the Company hereby requests each of such counsel to deliver such opinions.
(c) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of Olin and the Company, the authorization of the Transactions and any other legal matters relating to Olin and the Company, this Agreement or the Transactions, all in form and substance satisfactory to the Administrative Agent and its counsel.
(d) All governmental and third party approvals necessary in connection with the Transaction, the continuing operations of the Borrower and its Subsidiaries and the transactions contemplated hereby shall have been obtained and be in full force and effect, and all applicable waiting periods shall have expired without any action being taken or threatened by any competent authority that would restrain, prevent or otherwise impose adverse conditions on the Transaction or the financing contemplated hereby.
(e) The Administrative Agent shall have received a certificate, dated the Effective Date, with respect to Olin, and signed by the President, a Vice President or a Financial Officer of Olin, confirming compliance with the conditions set forth in paragraphs (a) and (b) of Section 4.03, as to Olin.
(f) The Administrative Agent shall have received all fees and other amounts due and payable on or prior to the Effective Date, as to Olin, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(g) The Administrative Agent shall have received, and shall be satisfied with such financial, business and other information regarding the Company and its Subsidiaries relating to the Spin-Off as it shall have reasonably requested, including, without limitation, all matters related to insurance, ERISA, labor, intellectual property, taxes and environmental liabilities relating to the Company and its subsidiaries as it may have requested; it being understood that all of the matters described with particularity in the Form 10 with respect to the Spin-Off are, to the extent, and only to the extent, described therein, satisfactory to the Administrative Agent.
The Administrative Agent shall notify Olin and the Lenders of the Olin Closing Date, and such notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the Lenders to make Loans to Olin shall not become effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 9.02) at or prior to 3:00 p.m., New York City time, on February 28, 1999 (and, in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time).
(a) The Spin-Off (other than the Distribution) shall have occurred.
(b) The Administrative Agent shall have received a certificate, dated the Effective Date with respect to the Company and signed by the President, a Vice President or a Financial Officer of the Company, confirming compliance with the conditions set forth in paragraph (a) of Section 4.03.
(c) At least one Business Day shall have elapsed since the last borrowing (if any) by Olin hereunder.
Upon completion of the conditions set forth in paragraphs (a), (b) and (c) of this Section 4.02, all rights, liabilities and obligations of Olin under this Agreement will automatically,
and without further act of the parties hereto, be assigned and delegated to the Company, and the Company will automatically assume all such rights, liabilities and obligations in full, including without limitation the obligation to pay the principal of and all interest on any outstanding Loans hereunder, all fees and all other amounts from time to time owing hereunder, whether such Loans shall have been made, or such interest, fees or other amounts shall have accrued, prior to or after the date of such assumption and (ii) Olin will be automatically released from any and all obligations, claims and liabilities whatsoever, whether paid or unpaid, accrued or unaccrued, known or unknown, fixed or contingent, or otherwise, under this Agreement or arising in connection herewith and on any Loans hereunder, and from and after such time the Company will be the "Borrower" and sole obligor hereunder.
The Administrative Agent shall notify the Lenders of the Company Closing Date, and such notice shall be conclusive and binding.
(a) The representations and warranties of the Borrower set forth in this Agreement (including, without limitation, those set forth in Sections 3.04(c) and 3.06) shall be true and correct on and as of the date of such Borrowing or the date of issuance, amend ment, renewal or extension of such Letter of Credit, as applicable.
(b) At the time of and immediately after giving effect to such Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default shall have occurred and be continuing.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by the
Borrower on the date thereof as to the matters specified in paragraphs (a) and
(b) of this Section.
Subject to Section 6.13, until the Commitments have expired or been terminated and the principal of and interest on each Loan and all fees payable hereunder shall have been paid in full and all Letters of Credit shall have expired or terminated and all LC Disbursements shall have been reimbursed, the Borrower covenants and agrees with the Lenders that:
(a) within 90 days after the end of each fiscal year of the Borrower its audited consolidated balance sheet and related statements of operations, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by KPMG Peat Marwick LLP or other independent public accountants of recognized national standing (without a "going concern" or like qualification or exception and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year of the Borrower, its consolidated balance sheet and related statements of operations, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements under (i) clause (a) or (b) above, a certificate of a Financial Officer of the Borrower (A) certifying as to whether a Default has occurred and, if a Default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (B) setting forth reasonably detailed calculations demonstrating compliance with Section 6.12(a) and (b), and (C) stating whether any change in GAAP or in the application thereof has occurred since the date of the audited financial statements referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate and (ii) clause (a) above, a certificate of a Responsible Officer of the Borrower containing a list of Subsidiaries of the Borrower as of such date, along with a list of each new Subsidiary acquired or formed, and each Subsidiary dissolved or liquidated, since the last such certification;
(d) concurrently with any delivery of financial statements under clause (a) above, a certificate of the accounting firm that reported on such financial statements stating whether they obtained knowledge during the course of their examination of such financial statements of any Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Borrower or any Subsidiary with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its shareholders generally, as the case may be;
(f) promptly after Moody's or S&P shall have announced a change in the rating established or deemed to have been established for the Index Debt, written notice of such rating change; and
(g) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Borrower or any Subsidiary, or compliance with the terms of this Agreement, as the Administrative Agent or any Lender may reasonably request.
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by or before any arbitrator or Governmental Authority against or affecting the Borrower or any of its Subsidiaries, the reasonably anticipated outcome of which would result in a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together with any other ERISA Events that have occurred, could reasonably be expected to result in liability of the Borrower and its Subsidiaries in an aggregate amount exceeding $10,000,000; and
(d) the commencement of, or any material development in, any action, suit, proceeding or investigation affecting the Borrower or any of its Subsidiaries or any of their respective properties before any arbitrator or Governmental Authority, in which the amount of any claim, damage, penalty or fine asserted against the Borrower or its Subsidiaries that the Borrower reasonably determines is not covered by insurance is $15,000,000 or more;
(e) the occurrence of one or more of the following, to the extent that any of the following, if adversely determined, could reasonably be expected to result in liability to the Borrower or any of its Subsidiaries in excess of $7,500,000 or a fine or penalty in excess of $2,500,000: (i) written notice, claim or request for information to the effect that the Borrower or any of its Subsidiaries is or may be liable in any material respect to any Person as a result of the presence of or the Release or substantial threat of a material
Release of any Hazardous Materials into the environment; (ii) written notice
that the Borrower or any of its Subsidiaries is subject to investigation by any
Governmental Authority evaluating whether any Remedial Action is needed to
respond to the presence or to the Release or substantial threat of a material
Release of any Hazardous Materials into the environment; (iii) written notice
that any property, whether owned or leased by, or operated on behalf of, the
Borrower or any of its Subsidiaries is subject to a material Environmental Lien;
(iv) written notice of violation to the Borrower or any of its Subsidiaries of
any Environmental Laws or Environmental Permits; or (v) commencement or written
threat of any judicial or administrative proceeding alleging a violation of any
Environmental Laws or Environmental Permits;
(f) upon written request by Administrative Agent, a report providing an update of the status of each environmental, health or safety compliance, hazard or liability issue identified in any notice or report required pursuant to clause (e) above and any other environmental, health and safety compliance obligation, remedial obligation or liability that could reasonably be expected to have a Material Adverse Effect (all such notices shall describe in reasonable detail the nature of the claim, investigation, condition, occurrence or Remedial Action and the Borrower's or such Subsidiary's response thereto);
(g) prompt notice of any event or condition that would cause the representation contained in Section 3.12 to be false, and such other information regarding the year 2000 and the effect thereof on the Borrower as the Administrative Agent shall reasonably request; and
(h) any other development that results in, or could reasonably be expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of a Financial Officer or other executive officer of the Borrower setting forth the details of the event or development requiring such notice and any action taken or proposed to be taken with respect thereto.
all licenses, approvals, notifications, registrations or permits required by applicable Environ mental Laws and (b) conduct and complete all investigations, studies, sampling and testing, and all remedial, removal and other actions required under Environmental Laws and promptly comply in all material respects with all lawful orders and directives of the Governmental Authorities regarding Environmental Laws.
Subject to Section 6.13, until the Commitments have expired or terminated and the principal of and interest on each Loan and all fees payable hereunder have been paid in full and all Letters of Credit have expired or terminated and all LC Disbursements shall have been reimbursed, the Borrower covenants and agrees with the Lenders that:
(a) Indebtedness existing on the date hereof and set forth in Schedule 6.01 and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof;
(b) Indebtedness to the Borrower or any other Subsidiary;
(c) Guarantees of Indebtedness of the Borrower or any other Subsidiary;
(e) Indebtedness as an account party in respect of trade letters of credit;
(f) Indebtedness of Receivables Subsidiaries arising pursuant to Permitted Accounts Receivable Securitizations in an aggregate principal amount not to exceed $100,000,000; and
(g) other Indebtedness in an aggregate principal amount not exceeding $50,000,000 at any time outstanding.
(a) Permitted Encumbrances;
(e) Liens on Accounts Receivable and other assets of any Receivables Subsidiary arising in connection with any Permitted Accounts Receivable Securitization; and
(a) the Disposition of obsolete or worn out property in the ordinary course of business;
(b) the sale of inventory in the ordinary course of business;
(c) Dispositions permitted by Section 6.03;
(d) the sale or issuance of any Subsidiary's Capital Stock to the Borrower or any Subsidiary;
(a) the Borrower shall fail to pay any principal of any Loan or any reimbursement obligation in respect of any LC Disbursement when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or any fee or any other amount (other than an amount referred to in clause (a) of this Article) payable under this Agreement, when and as the same shall become due and payable, and such failure shall continue unremedied for a period of five Business Days;
(d) the Borrower shall fail to observe or perform any covenant, condition or agreement contained in Section 5.02, 5.03 (with respect to the Borrower's existence) or 5.08 or in Article VI;
(e) the Borrower shall fail to observe or perform any covenant, condition or agreement contained in this Agreement (other than those specified in clause (a), (b) or (d) of this Article), and such failure shall continue unremedied for a period of 30 days after notice thereof from the Administrative Agent to the Borrower (which notice will be given at the request of any Lender);
(f) the Borrower or any Subsidiary shall fail to make any payment (whether of principal or interest and regardless of amount) in respect of any Material Indebtedness, when and as the same shall become due and payable;
(h) an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of the Borrower or any Subsidiary or its debts, or of a substantial part of its assets, under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any Subsidiary or for a substantial part of its assets, and, in any such case, such proceeding or petition shall continue undismissed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered;
(i) the Borrower or any Subsidiary shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or other relief under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in clause (h) of this Article, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any Subsidiary or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoing;
(j) the Borrower or any Subsidiary shall become unable, admit in writing its inability or fail generally to pay its debts as they become due;
(k) one or more judgments for the payment of money in an aggregate amount in excess of $5,000,000 shall be rendered against the Borrower, any Subsidiary or any combination thereof and the same shall remain undischarged for a period of 60 consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of the Borrower or any Subsidiary to enforce any such judgment;
(l) an ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred, could reasonably be expected to result in a Material Adverse Effect; or
(m) a Change in Control shall occur;
then, and in every such event (other than an event with respect to the Borrower
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Borrower, take either or
both of the following actions, at the same or different times: (i) terminate
the Commitments, and thereupon the Commitments shall terminate immediately, and
(ii) declare the Loans then outstanding to be due and payable in whole (or in
part, in which case any principal not so declared to be due and payable may
thereafter be declared to be due and payable), and thereupon the principal of
the Loans so declared to be due and payable, together with accrued interest
thereon and all fees and other obligations of the Borrower accrued hereunder,
shall become due and payable immediately, without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by the Borrower; and
in case of any event with respect to the Borrower described in clause (h) or (i)
of this Article, the Commitments shall automatically terminate and the principal
of the Loans then outstanding, together with accrued interest thereon and all
fees and other obligations of the Borrower accrued hereunder, shall
automatically become due and payable, without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Borrower.
are delegated to each Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto.
Each bank serving as an Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not an Agent, and each such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent hereunder.
The Syndication Agent and the Documentation Agent, in their capacities
as such, shall have no duties, obligations or liabilities of any kind hereunder.
The Administrative Agent shall not have any duties or obligations except those
expressly set forth herein. Without limiting the generality of the foregoing,
(a) no Agent shall be subject to any fiduciary or other implied duties,
regardless of whether a Default has occurred and is continuing, (b) the
Administrative Agent shall not have any duty to take any discretionary action or
exercise any discretionary powers, except discretionary rights and powers
expressly contemplated hereby that the Administrative Agent is required to
exercise in writing by the Required Lenders (or such other number or percentage
of the Lenders as shall be necessary under the circumstances as provided in
Section 9.02), (c) except as expressly set forth herein, the Administrative
Agent shall not have any duty to disclose, and shall not be liable for the
failure to disclose, any information relating to the Borrower or any of its
Subsidiaries that is communicated to or obtained by the bank serving as
Administrative Agent or any of its Affiliates in any capacity and (d) the
Administrative Agent will upon becoming aware of the occurrence of a Default
give notice of such Default to each Lender. The Administrative Agent shall not
be liable for any action taken or not taken by it with the consent or at the
request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as provided in Section
9.02) or in the absence of its own gross negligence or wilful misconduct. The
Administrative Agent shall be deemed not to have knowledge of any Default unless
and until written notice thereof is given to the Administrative Agent by the
Borrower or a Lender, and the Administrative Agent shall not be responsible for
or have any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with this Agreement, (ii) the contents
of any certificate, report or other document delivered hereunder or in
connection herewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth herein, (iv) the
validity, enforceability, effectiveness or genuineness of this Agreement or any
other agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article IV or elsewhere herein, other than to confirm
receipt of items expressly required to be delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it
orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the Administrative Agent may
resign at any time by notifying the Lenders, the Issuing Bank and the Borrower.
Upon any such resignation, the Required Lenders shall have the right, in
consultation with the Borrower, to appoint a successor. If no successor shall
have been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative Agent gives notice
of its resignation, then the retiring Administrative Agent may, on behalf of the
Lenders and the Issuing Bank, appoint a successor Administrative Agent which
shall be a bank with an office in New York, New York, or an Affiliate of any
such bank. Upon the acceptance of its appointment as Administrative Agent
hereunder by a successor, such successor shall succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder. The fees payable by the Borrower to a successor
Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrower and such successor. After the
Administrative Agent's resignation hereunder, the provisions of this Article and
Section 9.03 shall continue in effect for the benefit of such retiring
Administrative Agent, its sub-agents and their respective Related Parties in
respect of any actions taken or omitted to be taken by any of them while it was
acting as Administrative Agent.
Each Lender acknowledges that it has, independently and without reliance upon any Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder.
(a) if to Olin at:
501 Merritt 7
P.O. Box 4500
Norwalk, Connecticut 06851-4500
Tel: 203-750-2610
Fax: 203-750-3231
Attention: Treasurer
with a copy to:
501 Merritt 7
P.O. Box 4500
Norwalk, Connecticut 06851-4500
Tel: 203-750-3126
Fax: 203-750-3018
Attention: Secretary
(b) If to the Company, at:
501 Merritt 7
P.O. Box 5204
Norwalk, Connecticut 06856-5204
Tel: 203-229-3881
Fax: 203-229-3162
Attention: Treasurer
with a copy to:
501 Merritt 7
P.O. Box 5204
Norwalk, Connecticut 06856-5204
Tel: 203-229-2683
Fax: 203-229-3292
Attention: Secretary
(c) if to the Administrative Agent, to:
The Chase Manhattan Bank
Loan and Agency Services Group
One Chase Manhattan Plaza, 8th Floor
New York, New York 10081
Attention of Dan Fischer
(Telecopy No. 212-582-5777)
with a copy to:
The Chase Manhattan Bank
270 Park Avenue
New York 10017
Attention of Leland A. Harrs
(Telecopy No.212-270-7935);
(d) if to the Issuing Bank, to:
The Chase Manhattan Bank
1201 North Market Street
Wilmington, Delaware 19801
Attention of Michael Handago
(Telecopy No.302-428-3311);
(e) if to the Swingline Lender, to:
The Chase Manhattan Bank
270 Park Avenue
New York 10017
Attention of Dan Fischer
(Telecopy No.212-582-5777);
with a copy to:
The Chase Manhattan Bank
270 Park Avenue
New York 10017
Attention of Leland A. Harrs
(Telecopy No.212-270-7935);
(f) if to any other Lender, to it at its address (or telecopy number) set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other communications hereunder by notice to the other parties hereto. All notices and other communications given to any party hereto in accordance with the provisions of this Agreement shall be deemed to have been given on the date of receipt.
(a) No failure or delay by the Administrative Agent, the Issuing Bank or any Lender in exercising any right or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Bank and the Lenders hereunder are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by the Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or the Issuing Bank may have had notice or knowledge of such Default at the time.
(a) The Borrower shall pay (i) all reasonable out-of-pocket expenses incurred by the Administrative Agent and its Affiliates, including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, in connection with the syndication of the credit facilities provided for herein, the preparation and administration of this Agreement or any amendments, modifications or waivers of the provisions hereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable out-of-pocket expenses incurred by the Issuing Bank in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all out-of-pocket expenses incurred by the Administrative Agent, the Issuing Bank or any Lender, including the fees, charges and disbursements of counsel for the Administrative Agent, the Issuing Bank or such Lender, in connection with the enforcement or protection of its rights in connection with this Agreement, including its rights under this Section, or in connection with the Loans made or Letters of Credit issued hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(c) To the extent that the Borrower fails to pay any amount required to be paid by it to the Administrative Agent, the Issuing Bank or the Swingline Lender under
(d) To the extent permitted by applicable law, the Borrower shall not assert, and hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan or Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable promptly after written demand therefor.
(a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit), except that, other than as part of the Company Closing, the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by the Borrower without such consent shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Bank and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
legally authorized to enter into such Assignment and Acceptance; (4) such assignee confirms that it has received a copy of this Agreement, together with copies of the most recent financial statements referred to in Section 3.04 or delivered pursuant to Section 5.01 and such other documents and information as it has been deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (5) such assignee will independently and without reliance upon any Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (6) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by the terms hereof, together with such powers as are reasonably incidental thereto, and (7) such assignee agrees that it will perform in accordance with their terms all the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by paragraph
(b) of this Section, the Administrative Agent shall accept such Assignment and
Acceptance and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(f) A Participant shall not be entitled to receive any greater payment under Section 2.15 or 2.17 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Borrower's prior written consent. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 2.17 unless the Borrower is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Borrower, to comply with Section 2.17(e) as though it were a Lender.
and Article VIII shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby, the repayment of the Loans, the expiration or termination of the Letters of Credit and the Commitments or the termination of this Agreement or any provision hereof.
(a) This Agreement shall be construed in accordance with and governed by the law of the State of New York.
(b) The Borrower hereby irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of the Supreme Court of the State of New York sitting in New York County and of the United States District Court of the Southern District of New York, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State or, to the extent permitted by law, in such Federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement shall affect any right that the Administrative Agent, the Issuing Bank or any Lender may otherwise have to bring any action or proceeding relating to this Agreement against the Borrower or its properties in the courts of any jurisdiction.
(c) The Borrower hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement in any court referred to in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 9.01. Nothing in this Agreement will affect the right of any party to this Agreement to serve process in any other manner permitted by law.
such cumulated amount, together with interest thereon at the Federal Funds Effective Rate to the date of repayment, shall have been received by such Lender.
[the remainder of this page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.
OLIN CORPORATION
By: /s/ Janet M. Pierpont -------------------------------------- Name: Janet M. Pierpont Title: Vice President and Treasurer |
ARCH CHEMICALS, INC.
By: /s/ Sarah A. O'Connor -------------------------------------- Name: Sarah A. O'Connor Title: Vice President and Assistant Secretary |
THE CHASE MANHATTAN BANK,
individually and as Administrative Agent,
By: /s/ Laurie B. Perper -------------------------------------- Name: Laurie B. Perper Title: Vice President |
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
individually and as Syndication Agent,
By: /s/ Eileen C. Higgins -------------------------------------- Name: Eileen C. Higgins Title: Vice President |
WACHOVIA BANK, N.A.,
individually and as Documentation Agent,
By: /s/ John C. Coffin -------------------------------------- Name: John C. Coffin Title: Senior Vice President |
THE BANK OF NEW YORK
By: /s/ Kenneth P. Sneider, Jr. -------------------------------------- Name: Kenneth P. Sneider, Jr. Title: Vice President |
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Tom Dao -------------------------------------- Name: Tom Dao Title: Corporate Banking Officer |
FIRST UNION NATIONAL BANK
By: /s/ James J. McKenna -------------------------------------- Name: James J. McKenna Title: Executive Vice President |
FLEET NATIONAL BANK
By: /s/ Barbara Agostini Keegan -------------------------------------- Name: Barbara Agostini Keegan Title: Vice President |
SUNTRUST BANK, ATLANTA
By: /s/ W. David Wisdom -------------------------------------- Name: W. David Wisdom Title: Group Vice President By: /s/ Laura G. Harrison -------------------------------------- Name: Laura G. Harrison Title: Assistant Vice President |
ABN AMRO BANK N.V.
By: /s/ George Dugan -------------------------------------- Name: George Dugan Title: Vice President By: /s/ Patricia Christy -------------------------------------- Name: Patricia Christy Title: Corporate Banking Officer |
BBL INTERNATIONAL (U.K.) LIMITED
By: /s/ C.F. Wright -------------------------------------- Name: C.F. Wright Title: Authorised Signatory By: /s/ M. E. Eertmans -------------------------------------- Name: M. E. Eertmans Title: Authorised Signatory |
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Donald V. Davis -------------------------------------- Name: Donald V. Davis Title: Vice President |
STATE STREET BANK AND TRUST COMPANY
By: /s/ Monica M. Sheehan -------------------------------------- Name: Monica M. Sheehan Title: Vice President |
Lender Commitment
------- ----------
The Chase Manhattan Bank $ 15,000,000
Bank of America National Trust and Sav- $ 15,000,000
ings Association
Wachovia Bank, N.A. $ 15,000,000
The Bank of New York $ 10,000,000
The First National Bank of Chicago $ 10,000,000
First Union National Bank $ 10,000,000
Fleet National Bank $ 10,000,000
SunTrust Bank, Atlanta $ 10,000,000
ABN Amro Bank N.V. $ 7,500,000
BBL International (U.K.) Limited $ 7,500,000
PNC Bank, National Association $ 7,500,000
State Street Bank and Trust Company $ 7,500,000
------------
Total $125,000,000
|
Schedule 3.06
-------------
|
No matters other than those matters heretofore disclosed in the Form 10 or in Olin's Annual Report on Form 10-K for the year ended December 31, 1997 and its Quarterly Reports on Form 10-Q for the quarters ended March 31, June 30 and September 30, 1998
Amount Maturity
------- --------
(i) Etoxyl (Venezuela) $5,515,343 Monthly installments of
$45,961 commencing April
1, 1999 though 2009
(ii) Kimya (Turkey) $1,675,000 September 3, 2000
(iii) Louisiana IDB/*/ $1,000,000 March 1, 2008
|
/*/ The Louisiana IDB is an obligation of Olin. It is listed as "Indebtedness" because it is secured by a lien on property to be transferred (subject to this lien) to Arch as part of the Spin-Off.
None, except liens in connection with the Louisiana IDB./*/
EXHIBIT A
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement dated as of January 27, 1999 (as amended and in effect on the date hereof, the "Credit Agreement"), among Arch Chemicals, Inc., Olin Corporation, the Lenders and Agents named therein and The Chase Manhattan Bank, as Administrative Agent for the Lenders. Terms defined in the Credit Agreement are used herein with the same meanings.
The Assignor named on the reverse hereof hereby sells and assigns, without recourse, to the Assignee named on the reverse hereof, and the Assignee hereby purchases and assumes, without recourse, from the Assignor, effective as of the Assignment Date set forth on the reverse hereof, the interests set forth on the reverse hereof (the "Assigned Interest") in the Assignor's rights and obligations under the Credit Agreement, including, without limitation, the interests set forth on the reverse hereof in the Commitment of the Assignor on the Assignment Date and Competitive Loans and Revolving Loans owing to the Assignor which are outstanding on the Assignment Date, together with the participations in Letters of Credit, LC Disbursements and Swingline Loans held by the Assignor on the Assignment Date, but excluding accrued interest and fees to and excluding the Assignment Date. The Assignee hereby acknowledges receipt of a copy of the Credit Agreement. From and after the Assignment Date (i) the Assignee shall be a party to and be bound by the provisions of the Credit Agreement and, to the extent of the Assigned Interest, have the rights and obligations of a Lender thereunder and (ii) the Assignor shall, to the extent of the Assigned Interest, relinquish its rights and be released from its obligations under the Credit Agreement.
This Assignment and Acceptance is being delivered to the Administrative Agent together with (i) if the Assignee is a Foreign Lender, any documentation required to be delivered by the Assignee pursuant to Section 2.17(e) of the Credit Agreement, duly completed and executed by the Assignee, and (ii) if the Assignee is not already a Lender under the Credit Agreement, an Administrative Questionnaire in the form supplied by the Administrative Agent, duly completed by the Assignee. The [Assignee/Assignor] shall pay the fee payable to the Administrative Agent pursuant to Section 9.04(b) of the Credit Agreement.
This Assignment and Acceptance shall be governed by and construed in accordance with the laws of the State of New York.
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of Assignment
("Assignment Date"):
===================================================================================
Principal Amount As- Percentage Assigned of Fa-
signed (and identifying cility/Commitment (set forth,
information as to individ- to at least 8 decimals, as a
Facility ual Competitive Loans) percentage of the Facility and
-------- -----------------
the aggregate Commitments
of all Lenders thereunder)
----------
-----------------------------------------------------------------------------------
Commitment Assigned: $ %
-----------------------------------------------------------------------------------
Revolving Loans:
-----------------------------------------------------------------------------------
Competitive Loans:
===================================================================================
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The terms set forth above and on the reverse side hereof are hereby agreed to:
By: ______________________________
Name:
Title:
By: ______________________________
Name:
Title:
The undersigned hereby consent to the within assignment:
[Name of Borrower], The Chase Manhattan Bank,
as Administrative Agent,
By: ______________________ By: __________________________
Name: Name:
Title: Title:
The Chase Manhattan Bank, as The Chase Manhattan Bank,
as Swingline Lender, as Issuing Bank
By: ________________________ By: _______________________________
Name: Name:
Title: Title:
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EXHIBIT B
OPINION OF COUNSEL FOR THE BORROWER
[Closing Date]
To the Lenders and the Administrative
Agent Referred to Below
c/o The Chase Manhattan Bank, as
Administrative Agent
270 Park Avenue
New York, New York 10017
Dear Sirs:
We have examined originals or copies, certified or otherwise identified to our satisfaction, of such documents, corporate records, certificates of public officials and other instruments and have conducted such other investigations of fact and law as we have deemed necessary or advisable for purposes of this opinion.
Upon the basis of the foregoing, we are of the opinion that:
1. Each of the Loan Parties (a) is a corporation duly organized,
validly existing and in good standing under the laws of Virginia/1/, (b) has
all requisite power and authority to carry on its business as now conducted and
(c) except where the failure to do so, individually or in the aggregate, could
not reasonably be expected to result in a Material Adverse Effect, is qualified
to do business in, and is in good standing in, every jurisdiction where such
qualification is required.
/1/ Virginia counsel opinion
2. The Transactions are within each Loan Party's corporate powers and have been duly authorized by all necessary corporate and, if required, stockholder action. The Credit Agreements and promissory notes issued pursuant thereto have been duly executed and delivered by each Loan Party which is a party thereto and each constitutes a legal, valid and binding obligation of each Loan Party which is a party thereto, enforce able in accordance with its terms, subject to applicable bankruptcy, insolvency, reorgani zation, moratorium or other laws affecting creditors' rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
3. The Transactions (a) do not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except such as have been obtained or made and are in full force and effect, (b) will not violate any applicable law or regulation or the charter, by-laws or other organizational documents of either Loan Party or any of their respective Subsidiaries or any order of any Govern mental Authority, (c) will not violate or result in a default under any indenture, agreement or other instrument binding upon either Loan Party or any of their respective Subsidiaries or their assets, or give rise to a right thereunder to require any payment to be made by either Loan Party or any of their respective Subsidiaries, and (d) will not result in the creation or imposition of any Lien on any asset of either Loan Party or any of their respective Subsidiaries.
4. There are no actions, suits or proceedings by or before any arbitrator or Governmental Authority pending against or, to our knowledge, threatened against or affecting either Loan Party or any of their respective Subsidiaries (a) as to which there is a reasonable possibility of an adverse determination and that, if adversely determined, could reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect (other than the Disclosed Matters) or (b) that involve the Credit Agreements or the Transactions.
5. No Loan Party nor any of their respective Subsidiaries is (a) an "investment company" as defined in, or subject to regulation under, the Investment Company Act of 1940 or (b) a "holding company" as defined in, or subject to regulation under, the Public Utility Holding Company Act of 1935.
We are members of the bar of the State of New York and the foregoing opinion is limited to the laws of the State of New York and the Federal laws of the United States of America. This opinion is rendered solely to you in connection with the above matter. This opinion may not be relied upon by you for any other purpose or relied upon by any other Person (other than your successors and assigns as Lenders) without our prior written consent.
Very truly yours,
EXHIBIT C
OLIN CREDIT AGREEMENT
AFFIRMATIVE COVENANTS, NEGATIVE COVENANTS
AND DEFINED TERMS
COMPOSITE CONFORMED COPY
As amended by (i) Letter dated April 11,
1995, effective May 1, 1995, (ii) Letter
dated October 26, 1996, effective October 31,
1996, (iii) Third Letter Amendment dated and
effective November 12, 1997 and (iv) Fourth
Letter Amendment dated and effective November
12, 1997
U.S. $250,000,000
CREDIT AGREEMENT
Dated as of September 30, 1993
Among
OLIN CORPORATION
and
THE BANKS NAMED HEREIN
9/30/93
ARTICLE V
(d) [Intentionally left blank.]
(i) as soon as available and in any event within 60 days after the end of each of the first three quarters of each year, balance sheets of the Borrower and the Subsidiaries, on a consolidated basis, as of the end of such quarter and statements of income and retained earnings and cash flow of the Borrower and the Subsidiaries, on a consolidated basis, for the
period commencing at the end of the previous year and ending with the end of such quarter, certified by the chief financial officer of the Borrower, subject to audit and year end adjustments;
(ii) as soon as available and in any event within 120 days after the end of each year, a copy of the balance sheets of the Borrower and the Subsidiaries, on a consolidated basis, as of the end of such year and the statements of income and retained earnings and cash flow of the Borrower and the Subsidiaries, on a consolidated basis, for such year, certified by KPMG Peat Marwick or another independent nationally recognized firm of public accountants;
(iii) as soon as possible and in any event within ten days after an officer of the Borrower becomes aware of the occurrence of each Event of Default (and each event which, with the giving of notice or lapse of time, or both, would constitute an Event of Default), an Officer's Certificate setting forth details of such Event of Default or event and the action which the Borrower has taken and proposes to take with respect thereto;
(iv) contemporaneously with each delivery of the statements referred to in clauses (i) and (ii) above, (A) either an Officer's Certificate stating that no Event of Default (other than by reason of non-compliance with the covenants referred to in Sections 5.01(b), (c) and (d) and no event which, with the giving of notice or lapse of time, or both, would constitute an Event of Default (other than by reason of non-compliance with the covenants referred to in Sections 5.01(b), (c) and (d)) occurred during such quarter or, if applicable, an Officer's Certificate pursuant to clause (iii) above, (B) an Officer's Certificate stating that, as of the last day of the preceding quarter, and to the best of his or her knowledge, at all times during the preceding quarter, the Borrower was in compliance with the covenants referred to in Sections 5.01(b), (c) and (d) and providing reasonable details of the calculations evidencing the Borrower's compliance with such covenants and (C) reasonable details of each material change in generally accepted accounting principles from those applied in preparing the statements referred to in Section 4.01(e) insofar as such changes are applicable to the statements referred to in clauses (i) and (ii) above;
(v) promptly after the sending or filing thereof, copies of all reports which the Borrower sends to any of its shareholders, and copies of all reports and registration statements which the Borrower or any Subsidiary files with the Securities and Exchange Commission or any national
securities exchange (other than those pertaining to employee benefit plans); and
(vi) such other information respecting the condition or operations, financial or otherwise, of the Borrower or any Subsidiary as any Lender may from time to time reasonably request.
(i) Liens for taxes not yet due or which are being contested in good faith by appropriate proceedings,
(ii) other Liens incidental to the conduct of its business or the ownership of its property and assets which were not incurred in connection with the borrowing of money or the obtaining of advances or credit, and which do not in the aggregate materially detract from the value of its property or assets or materially impair the use thereof in the operation of its business,
(iii) Liens on property or assets of a Domestic Subsidiary to secure obligations of such Subsidiary to the Borrower or another Domestic Subsidiary,
(v) subject to the further limitations of Sections 5.02(b) and
(c), any Lien existing on any property of any corporation at the time
it became a Subsidiary, or existing prior to the time of acquisition
upon any property acquired by the Borrower or any Subsidiary through
purchase, merger or consolidation or otherwise, whether or not assumed
by the Borrower or such Subsidiary, or placed upon property at the
time of acquisition by the Borrower or any Subsidiary to secure a
portion of the purchase price
(vii) Liens incurred in connection with any Tax-Exempt Financing which do not in the aggregate materially detract from the value of the property or assets affected thereby or materially impair the use of such property or assets in the operation of its business,
whether or not any amount thereunder has been drawn down or is outstanding, shall constitute Consolidated Secured Debt, and
(ix) Liens in favor of the Olin-DNT Limited Partnership, a Delaware limited partnership, or Air Products and Chemicals, Inc., a Delaware corporation, or any of their respective successors and assigns, securing obligations relating to lease agreements entered into with respect to a demonstration DNT plant and a commercial DNT plant as set forth in and pursuant to Precautionary Security Agreements to be filed and recorded in the appropriate records of Calcasieu Parish, Louisiana with respect to the property referred to therein, and with respect to real estate assets referred to therein not to exceed in the aggregate fifteen acres of Borrower's real estate, and extensions and renewals of such liens.
(ii) Funded or Current Debt of any Domestic Subsidiary secured by Liens permitted by the provisions of clause (v) of Section 5.02(a) or unsecured and either issued or assumed by such Subsidiary in connection with payment to sellers of properties or businesses acquired by such Subsidiary or payable by such Subsidiary and outstanding at the time it
(iii) Current Debt of the Borrower or any Foreign Subsidiary, and
(iv) Funded or Current Debt of any Domestic Subsidiary to the Borrower or any other Domestic Subsidiary.
(d) [Intentionally Left Blank.]
Insufficiency of any and all other Plans with respect to which an ERISA Event shall have occurred and then exist (or, in the case of a Plan with respect to which an ERISA Event described in clauses (iii) through (vi) of the definition of ERISA Event shall have occurred and then exist, the liability related thereto), (C) amounts then required to be paid to any and all other Multiemployer Plans by the Borrower or its ERISA Affiliates as Withdrawal Liability and (D) the aggregate principal amount of all Funded and Current Debt of the Borrower and all the Subsidiaries secured by Liens permitted by clauses (iv), (v) and (vi) of Section 5.02(a), shall exceed an amount equal to 10% of Consolidated Net Tangible Assets.
DEFINITIONS AND ACCOUNTING TERMS
Eurodollar Rate Advances, on which dealings are carried on in the London interbank market.
value of any assets (other than an allocation of purchase price in an acquisition) after June 30, 1986; all as determined in accordance with generally accepted accounting principles.
within the meaning of Section 414 of the Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated and rulings issued thereunder.
(a) any obligation payable more than one year from the date of creation thereof, which under generally accepted accounting principles is shown on the balance sheet as a liability (excluding reserves for deferred income taxes and deferred incentive awards and other reserves to the extent that such other reserves do not constitute an obligation),
(b) amounts equal to the aggregate net rentals (after making allowance for any interest, taxes or other expenses included therein), payable more than one year from the date of the creation thereof under any lease (whether or not such rentals accrue and become payable only on an annual or other periodic basis) which lease (i) constitutes the substantial equivalent of a purchase of the property subject to such lease, (ii) has an initial term materially less than the useful life of such property and provides that the lessee has the option to renew such lease for the
remaining useful life of such property at a rental which at the inception of such lease appears to be substantially less than the fair rental value of such property, or (iii) provides an option to the lessee to acquire the property subject to such lease at a price which at the inception of such lease, appears to be substantially less than the probable fair value of such property at the time or times of permitted acquisition by the lessee.
(c) non-recourse obligations secured by any Lien, if such obligations (were they recourse) would be Funded Debt,
(d) guarantees, endorsements (other than endorsements of negotiable instruments for collection in the ordinary course of business) and other contingent liabilities (whether direct or indirect) with respect to the Funded Debt, stock or dividends of any Person,
(e) obligations under any contract providing for the making of loans, advances or capital contributions to any Person, or for the purchase of any property from any Person, in each case in order to enable such Person, and such contract (or any related document) by its terms provides that its purpose is, to maintain working capital, net worth or any other balance sheet condition or to pay debts, dividends or expenses constituting Funded Debt,
(f) obligations under any contract for the purchase of materials, supplies or other property if such contract (or any related document) requires that payment for such materials, supplies or other property shall be made regardless of whether or not delivery of such materials, supplies or other property is ever made or tendered,
(g) obligations under any contract to rent or lease (as lessee) any real or personal property if such contract (or any related document) provides that the obligation to make payments thereunder is absolute and unconditional under conditions not customarily found in commercial leases then in general use or requires that the lessee purchase or otherwise acquire securities or obligations of the lessor,
(h) obligations under any contract for the sale or use of materials, supplies or other property if such contract (or any related document) requires that payment for such materials, supplies or other property, or the use thereof, shall be subordinated to any indebtedness (of the purchaser or user of such materials, supplies or other property) owed or to be owed to any Person, and
(i) obligations under any other contract which, in economic effect, is substantially equivalent to a guarantee of Funded Debt of any Person and
shall
appear as a contingent liability on the consolidated balance sheet of the Borrower and its Subsidiaries or in any notes related thereto;
(A) the Borrower may not select any Interest Period which ends after the Termination Date;
(B) Interest Periods commencing on the same date for A Advances comprising part of the same Borrowing shall be of the same duration; and
of Subtitle E of Title IV of ERISA.