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EXHIBIT 10.02
TERM LOAN AND REVOLVING CREDIT
AGREEMENT
DATED AS OF AUGUST 1, 1994
BETWEEN
ARISTECH CHEMICAL CORPORATION
AS THE BORROWER
AND
MITSUBISHI INTERNATIONAL CORPORATION
AS THE LENDER
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TERM LOAN AND REVOLVING CREDIT AGREEMENT
THIS AGREEMENT ("AGREEMENT"), dated as of August 1, 1994, is by and between
ARISTECH CHEMICAL CORPORATION, a Delaware corporation (hereinafter referred to
as the "BORROWER"), and MITSUBISHI INTERNATIONAL CORPORATION, a Delaware
corporation (hereinafter referred to as "LENDER").
RECITALS
WHEREAS, Borrower desires to borrow, and Lender is willing to lend, the sum
of One Hundred Million Dollars (U.S. $100,000,000) on a short-term basis and
up to the sum of One Hundred Million Dollars (U.S. $100,000,000) on a revolving
credit basis, all pursuant to the terms and subject to the conditions herein
contained;
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and intending to be legally bound hereby, the parties hereto agree as follows:
ARTICLE I
CERTAIN DEFINITIONS; CONSTRUCTION
1.01 DEFINITIONS. In addition to the words and terms defined elsewhere in
this Agreement, as used in this Agreement, the following terms shall have the
following meanings:
"ALTERNATE BASE RATE" shall mean, for each Interest Period, a fluctuating
rate of interest equal to the higher of
(a) the rate of interest most recently established by The Mitsubishi
Bank, Limited at its New York office as its prime rate for U.S. Dollar
loans; and
(b) the Federal Funds Rate plus 1/2 of 1%.
"BANKRUPTCY CODE" shall mean the provisions of title 11 of the United
States Code, 11 U.S.C. Section 101 et seq., as amended, modified or
supplemented from time to time.
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"BUSINESS DAY" shall mean any day other than a Saturday, Sunday, public
holiday under the laws of the state of New York or other day on which
commercial banks in New York, New York, are required or authorized to close
under applicable law.
"CLOSING DATE" shall mean the date of this Agreement.
"CODE" shall mean the Internal Revenue Code of 1986, as amended, and any
successor statute, and the rules and regulations promulgated thereunder.
"EVENT OF DEFAULT" or "DEFAULT" shall mean any of the events of default
described in Section 3.01 of this Agreement.
"FEDERAL FUNDS RATE" shall mean a fluctuating interest rate per annum
equal for each day to
(a) the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged by
federal funds brokers, as published for such day (or, if such day is not
a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York; or
(b) if such rate is not so published for any day which is a Business
Day, the average of the quotations for such day on such transactions
received by Lender from three federal funds brokers of recognized
standing selected by it.
"GAAP" means generally accepted accounting principles in the United States
of America applied by the Borrower on a consistent basis as to both
classification of items and amounts, which shall include but not be limited to
the official interpretations thereof by the Financial Accounting Standards
Board, its predecessors or successors.
"INDEBTEDNESS" means all items of indebtedness which in accordance with
GAAP should be included in determining total liabilities as shown on the
liability side of a balance sheet as at the date as of which such indebtedness
is to be determined.
"INTEREST PAYMENT DATE" shall mean the last Business Day of each Interest
Period for any portion of the Loans subject to the LIBO Rate and the date of
any conversion to the LIBO Rate with respect to any portion of the Loans
subject to the
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Alternate Base Rate. If any Interest Period would expire on a day which is not
a Business Day, such Interest Period shall expire on the next succeeding
Business Day; provided, however, that if any such Interest Period would expire
on a day which is not a Business Day but is a day of the month after which no
further Business Day occurs in such month, such Interest Period shall expire on
the next preceding Business Day.
"INTEREST PERIOD" shall mean the period commencing on (and including) the
Closing Date and ending on (but excluding) the first Interest Payment Date
thereafter; and, thereafter, each period commencing on (and including) the last
day of the immediately preceding Interest Period and ending on (but excluding)
the first Interest Payment Date thereafter.
"LIBO RATE" shall mean, for each Interest Period, the rate per annum as
determined by reference to page 3750 of Telerate (at approximately 11:00 a.m.
London, England time, on the date two London Business Days prior to the first
day of such Interest Period), in the London Interbank Market for deposits of
dollars for a period equal to the length of such Interest Period and in an
amount comparable to the aggregate unpaid principal amount of the Loan
outstanding during such Interest Period.
"LOAN" and "LOANS" shall mean either or all of the Term Loan and the
Revolving Credit Loans.
"LOAN DOCUMENTS" shall mean this Agreement, the Notes and all other
agreements, instruments, certificates and documents contemplated by or
delivered or required to be delivered under this Agreement or in connection
herewith, as any or all of the foregoing may be amended, supplemented or
otherwise modified from time to time.
"LONDON BUSINESS DAY" shall mean any day other than a Saturday, Sunday,
public holiday under the laws of England or other day on which prime banks in
London, England are required or authorized to close under applicable law.
"MATURITY DATE" shall mean 3:00 p.m., New York time, on March 31, 1995.
"NOTE" and "NOTES" shall mean either or both of the Term Note and the
Revolving Credit Note.
"OLD FACILITY" shall mean that certain Credit Agreement, dated as of April
18, 1990, among Borrower, as the borrower, ACC Holdings Corporation, ACC Middle
Corporation, Aristech Chemical International Limited, Aristech Chemical
International Sales Limited and Mitsubishi Corporation, as Guarantors, The
Mitsubishi Bank, Limited, acting through its New York Branch and The Mitsubishi
Trust and Banking Corporation,
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acting through its New York Branch, as the Co-Arrangers, certain commercial
lending institutions as the lenders and The Mitsubishi Bank, Limited, acting
through its New York Branch, as the Agent, as amended, supplemented, amended
and restated or otherwise modified from time to time.
"RATE" and "RATES" shall mean either or both of the Alternate Base Rate
and LIBO Rate.
"REVOLVING CREDIT LOAN" or "REVOLVING CREDIT LOANS" shall mean one or more
of the Loans made to Borrower by Lender pursuant to Section 3.01 hereof.
"REVOLVING CREDIT NOTE" shall mean the Revolving Credit Note of the
Borrower executed and delivered to the Lender pursuant to this Agreement,
together with all extensions, renewals, refinancings or refundings thereof,
whether in whole or in part.
"TERM LOAN" means the Loan made to Borrower by Lender pursuant to Section
2.01 hereof.
"TERM NOTE" shall mean the Term Note of the Borrower executed and
delivered to the Lender pursuant to this Agreement, together with all
extensions, renewals, refinancings or refundings thereof, whether in whole or
in part.
1.02 CONSTRUCTION. Unless the context of this Agreement otherwise clearly
requires, references to the plural include the singular, the singular the
plural and the part the whole and "or" has the inclusive meaning represented by
the phrase "and/or". The words "hereof", "herein", "hereunder" and similar
terms in this Agreement refer to this Agreement as a whole and not to any
particular provision of this Agreement. Time is of the essence in this
Agreement and the other Loan Documents. The section and other headings
contained in this Agreement are for reference purposes only and shall not
control or affect the construction of this Agreement or the interpretation
thereof in any respect. Section and subsection references are to this
Agreement unless otherwise specified. References to dollar amounts shall be to
United States dollars.
ARTICLE II
THE TERM LOAN
2.01 MAKING OF TERM LOAN. Subject to the terms and conditions hereof, the
Lender shall make a loan to the Borrower on the Closing Date in the aggregate
principal amount of One
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Hundred Million Dollars (U.S. $100,000,000) (the "TERM LOAN"). No portion of
the Term Loan may be reborrowed by Borrower.
2.02 TERM NOTE. The obligation of the Borrower to repay the aggregate
unpaid principal amount of the Term Loan, and all interest accruing thereon
pursuant to Section 2.04 of this Agreement, shall be evidenced by the Term
Note, the form of which is attached to this Agreement as Exhibit "A."
2.03 PAYMENTS ON ACCOUNT OF PRINCIPAL.
(a) Payment of Principal; Optional Prepayment. The unpaid principal
amount of the Term Loan shall be due and payable on the Maturity Date. The
Borrower shall have the right, at the Borrower's option exercisable by delivery
of three (3) Business Days' prior written notice to Lender, to pay the Term
Loan in whole or part on any Interest Payment Date and to pay the whole or any
part of the portion of the Term Loan subject to the Alternate Base Rate on any
date, in either case without premium or penalty; provided, however, that the
minimum prepayment amount with respect to the Term Loan shall be $500,000.
(b) Compensation for Losses. In the event that the Borrower prepays a
portion of the Term Loan subject to the LIBO Rate on a day other than the
Interest Payment Date for such portion of the Term Loan, the Borrower shall pay
to Lender upon demand an amount which will compensate Lender for any loss or
penalty incurred by Lender as a result of such prepayment. Such compensation
shall equal the excess, if any, of (i) the amount of interest which would have
accrued on the amount so prepaid for the period from the date of such
prepayment to the last day of such Interest Period over (ii) the amount of
interest which would have accrued to Lender on such amount by placing such
amount on deposit for a comparable period with prime banks in the London
Interbank Market. Lender shall deliver to Borrower, within two (2) Business
Days after the date of any notice of such prepayment a certificate as to the
amount of such loss or expense, which certificate shall set forth in reasonable
detail the basis for such loss or expense.
2.04 PAYMENTS ON ACCOUNT OF INTEREST.
(a) Payment of Interest. The Borrower shall pay interest in respect of
the entire outstanding unpaid principal balance of the Term Loan at a rate per
annum during each Interest Period equal to (i) 0.150% in excess of the LIBO
Rate or (ii) the Alternate Base Rate, as selected by the Borrower. Interest
shall be payable on the outstanding balance of the Term Loan until the Term
Loan is paid in full. Interest accrued on the outstanding principal balance of
the Term Loan during any Interest Period shall be payable on the Interest
Payment Date for such Interest Period.
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(b) Interest Period and Rate Elections. Borrower shall have the option
of selecting Interest Periods for LIBO Rate portions of the Term Loan of one,
two or three months duration. The Interest Period for any portions of the Term
Loan subject to the Alternate Base Rate shall be any number of days at the
discretion of the Borrower. The Borrower may elect to have more than one
Interest Period outstanding at any one time; provided, however, that no
Interest Period shall extend beyond the Maturity Date. Not less than three
Business Days prior to the Closing Date, Borrower shall specify in writing to
Lender the initial Rate or Rates and Interest Period or Periods for the Term
Loan. Thereafter, Borrower shall, prior to the next Interest Payment Date,
specify in writing to Lender the Rate and the duration of the next Interest
Period, which shall commence on (and include) the Interest Payment Date and
shall expire on (but exclude) the next Interest Payment Date. Borrower shall
provide notice at least three Business Days prior to the applicable Interest
Payment Date of its election to choose the LIBO Rate and notice at least one
Business Day prior to the applicable Interest Payment Date of its election to
choose the Alternate Base Rate. If more than one Rate and Interest Period are
to be in effect at any time, then Borrower shall also specify which portion of
the Term Loan is to be subject to each Rate and Interest Period. With respect
to any portion of the Term Loan as to which there is no currently effective
Rate and Interest Period election, interest shall accrue on such portion of the
Term Loan at a rate per annum equal to the Alternate Base Rate and shall be
payable upon conversion of such portion of the Term Loan to the LIBO Rate.
(c) Interest Rate After Maturity. After the principal amount of the Term
Loan shall have become due and payable, whether at maturity or by acceleration,
declaration or otherwise, it shall thereafter bear interest at a rate per annum
equal at all times to 2.0% above the Alternate Base Rate until paid, payable on
demand.
(d) Maximum Rate. In no contingency or event shall interest charged
hereunder with respect to the Term Loan, however such interest may be
characterized or computed, exceed the highest rate permissible under any law
deemed applicable to this Agreement (the "MAXIMUM RATE"). In the event that it
is determined that the rate of interest charged hereunder with respect to the
Term Loan exceeded the Maximum Rate during any period or periods, the rate of
interest for such period or periods shall be deemed to have been the Maximum
Rate, and the rate of interest shall be deemed to have continued to be and
shall continue to be the Maximum Rate for such period as is necessary for the
total amount of interest paid or accrued hereunder with respect to the Term
Loan to equal the amount of interest that would have been paid or accrued
hereunder had the interest rate hereunder at all times remained as provided in
the
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preceding subsections of this Section 2.04. If, notwithstanding the foregoing
interest rate adjustment, it is determined that the Lender has received
interest in excess of the Maximum Rate, any such excess shall (i) first, be
applied to any unpaid costs and expenses owed to the Lender under this
Agreement or any other Loan Document and to the unpaid principal amount of the
Term Loan and (ii) second, be refunded to the Borrower.
ARTICLE III
THE REVOLVING CREDIT LOANS
3.01 MAKING OF REVOLVING CREDIT LOANS. Subject to the terms and
conditions hereof, the Lender shall make Revolving Credit Loans to Borrower
from time to time at Borrower's request, the aggregate outstanding principal
amount of which shall not exceed One Hundred Million Dollars (U.S.
$100,000,000) at any time, which Loans Borrower may repay and reborrow from
time to time until the Maturity Date. The amount of any Revolving Credit Loan
shall be no less than Two Million Dollars (U.S. $2,000,000).
3.02 REVOLVING CREDIT NOTE. The obligation of the Borrower to repay the
aggregate unpaid principal amount of the Revolving Credit Loans, and all
interest accruing thereon pursuant to Section 3.04 of this Agreement, shall be
evidenced by the Revolving Credit Note, the form of which is attached to this
Agreement as Exhibit "B".
3.03 PAYMENTS ON ACCOUNT OF PRINCIPAL.
(a) Payment of Principal; Optional Prepayment. The unpaid principal
amount of all Revolving Credit Loans shall be due and payable on the Maturity
Date. The Borrower shall have the right, at the Borrower's option exercisable
by delivery of three (3) Business Days' prior written notice to Lender, to pay
the Revolving Credit Loans in whole or part on any Interest Payment Date and to
pay the whole or any part of the portion of the Revolving Credit Loans subject
to the Alternate Base Rate on any date, in either case without premium or
penalty; provided, however, that the minimum prepayment amount with respect to
the Revolving Credit Loans shall be $500,000.
(b) Compensation for Losses. In the event that the Borrower prepays a
portion of the Revolving Credit Loan subject to the LIBO Rate on a day other
than the Interest Payment Date for such portion of the Revolving Credit Loan,
the Borrower shall pay to Lender upon demand an amount which will compensate
Lender for any loss or penalty incurred by Lender as a result of such
prepayment. Such compensation shall equal the excess, if any, of (i) the
amount of interest which would have accrued on
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the amount so prepaid for the period from the date of such prepayment to the
last day of such Interest Period over (ii) the amount of interest which would
have accrued to Lender on such amount by placing such amount on deposit for a
comparable period with prime banks in the London Interbank Market. Lender
shall deliver to Borrower, within two (2) Business Days after the date of any
notice of such prepayment a certificate as to the amount of such loss or
expense, which certificate shall set forth in reasonable detail the basis for
such loss or expense.
3.04 PAYMENTS ON ACCOUNT OF INTEREST.
(a) Payment of Interest. The Borrower shall pay interest in respect of
the entire outstanding unpaid principal balance of the Revolving Credit Loans
at a rate per annum during each Interest Period equal to (i) 0.150% in excess
of the LIBO Rate or (ii) the Alternate Base Rate, as selected by the Borrower.
Interest shall be payable on the outstanding balance of the Revolving Credit
Loans until the Revolving Credit Loans are paid in full. Interest accrued on
the outstanding principal balance of the Revolving Credit Loans during any
Interest Period shall be payable on the Interest Payment Date for such Interest
Period.
(b) Interest Period and Rate Elections. Borrower shall have the option
of selecting Interest Periods for LIBO Rate portions of the Revolving Credit
Loans of one, two or three months duration. The Interest Period for any
portions of the Revolving Credit Loans subject to the Alternate Base Rate shall
be any number of days at the discretion of the Borrower. The Borrower may
elect to have more than one Interest Period outstanding at any one time;
provided, however, that no Interest Period shall extend beyond the Maturity
Date. Not less than three Business Days prior to the Closing Date, Borrower
shall specify in writing to Lender the initial Rate or Rates and Interest
Period or Periods for the initial Revolving Credit Loan. Thereafter, Borrower
shall, prior to the next Interest Payment Date, specify in writing to Lender
the Rate and the duration of the next Interest Period, which shall commence on
(and include) the Interest Payment Date and shall expire on (but exclude) the
next Interest Payment Date. Borrower shall provide notice at least three
Business Days prior to the applicable Interest Payment Date of its election to
choose the LIBO Rate and notice at least one Business Day prior to the
applicable Interest Payment Date of its election to choose the Alternate Base
Rate. If more than one Rate and Interest Period are to be in effect at any
time, then Borrower shall also specify which portion of the Revolving Credit
Loans are to be subject to each Rate and Interest Period. With respect to any
portion of any Revolving Credit Loan as to which there is no currently
effective Rate and Interest Period election, interest shall accrue on such
portion of the Revolving Credit Loan at a rate per annum equal to the
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Alternate Base Rate and shall be payable upon conversion of such portion of the
Revolving Credit Loan to the LIBO Rate.
(c) Interest Rate After Maturity. After the principal amount of the
Revolving Credit Loans shall have become due and payable, whether at maturity
or by acceleration, declaration or otherwise, they shall thereafter bear
interest at a rate per annum equal at all times to 2.0% above the Alternate
Base Rate until paid, payable on demand.
(d) Maximum Rate. In no contingency or event shall interest charged
hereunder with respect to Revolving Credit Loans, however such interest may be
characterized or computed, exceed the highest rate permissible under any law
deemed applicable to this Agreement (the "Maximum Rate"). In the event that it
is determined that the rate of interest charged hereunder with respect to the
Revolving Credit Loans exceeded the Maximum Rate during any period or periods,
the rate of interest for such period or periods shall be deemed to have been
the Maximum Rate, and the rate of interest shall be deemed to have continued to
be and shall continue to be the Maximum Rate for such period as is necessary
for the total amount of interest paid or accrued hereunder with respect to the
Revolving Credit Loans to equal the amount of interest that would have been
paid or accrued hereunder had the interest rate hereunder at all time remained
as provided in the preceding subsections of this Section 3.04. If,
notwithstanding the foregoing interest rate adjustment, it is determined that
the Lender has received interest in excess of the Maximum Rate, any such excess
shall (i) first, be applied to any unpaid costs and expenses owed to the Lender
under this Agreement or any other Loan Document and to the unpaid principal
amount of the Revolving Credit Loans and (ii) second, be refunded to the
Borrower.
ARTICLE IV
DEFAULT
4.01 CONCERNING DEFAULTS. The Borrower shall be in default under this
Agreement upon the occurrence of any one or more of the following events
(herein called "Events of Default"):
(a) nonpayment of interest, principal or any amount due hereunder on or
before the date when due, whether at maturity or by acceleration, declaration
or otherwise, and such failure shall continue for a period of 10 days;
(b) the Borrower shall default (i) in any payment of principal of or
interest on any other Indebtedness beyond any period of grace provided with
respect thereto, or (ii)
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in the performance of any other agreement, term or condition contained in any
agreement under which any such obligation is created, and as a result of the
Borrower's default such obligation has become due prior to its stated
maturity and the result of an event specified in clause (ii) is to accelerate
or permit the acceleration of any such obligation in excess of $1,000,000; or
(c) adjudication of the Borrower as a bankrupt or insolvent, or entry of
an order, remaining unstayed by appeal or otherwise for 30 days, appointing a
receiver or trustee for the Borrower, or for all or any of its property, or
approving a petition seeking reorganization or other similar relief under the
Bankruptcy Code or other similar laws of the United States or of any state or
of any other competent jurisdiction, or the filing by the Borrower of a
petition seeking any of the foregoing or consenting thereto, or the filing of
a petition to take advantage of any debtors' act, or making a general
assignment for the benefit of creditors, or admitting in writing its
inability to pay its debts as they mature.
4.02 REMEDIES. If an Event of Default described in Section 4.01(a) or (b)
shall have occurred and be continuing, then Lender may forthwith, or at any
time thereafter, by notice to the Borrower, declare the unpaid principal amount
of the Loans and all interest then accrued thereon to be immediately due and
payable, and such principal and interest shall thereupon be immediately due and
payable without presentment, protest, demand or other notice all of which are
hereby waived, and Lender may terminate any and all obligations of Lender to
make Loans under this Agreement. If an Event of Default described in Section
4.01(c) shall have occurred, then all Loans and all interest thereon shall
automatically be and become immediately due and payable without presentment,
protest, demand or notice all of which are hereby waived, and any and all
obligations of Lender to make Loans under this Agreement shall automatically
and immediately terminate. Lender shall also have all other rights and
remedies available to Lender at law or in equity.
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ARTICLE V
MISCELLANEOUS
5.01 GUARANTY. The Borrower hereby represents and warrants to the Lender
that Mitsubishi Corporation shall guaranty the Loans made to Borrower hereunder
in a manner satisfactory to the Lender.
5.02 USE OF PROCEEDS. The Borrower hereby represents and warrants to the
Lender that the proceeds of the Loans will be used solely for the refinancing
of Indebtedness of the Borrower outstanding on the Closing Date and owed to
certain lending institutions pursuant to the Old Facility or owed to Mitsubishi
Corporation pursuant to the Subordinated Loan Agreement dated as of February
18, 1994 between the Borrower and Mitsubishi Corporation.
5.03 GOVERNING LAW. This Agreement and the Notes shall be governed by the
laws of the State of New York, excluding its rules relating to the conflict of
laws.
5.04 NOTICES. Any notice or request by any party hereto shall be in
writing and shall be deemed to have been given when delivered by hand or by
facsimile transmission or upon receipt when mailed by overnight courier,
addressed as follows, until notice of some other address shall have been given
to the other party:
If to the Borrower:
Aristech Chemical Company
600 Grant Street, Room 1188
Pittsburgh, Pennsylvania 15219-2704
Attention: Mr. Anthony F. Mastro
Facsimile: (412) 433-7819
If to the Lender:
Mitsubishi International Corporation
520 Madison Avenue
New York, New York 10022
Facsimile: (212) 605-2102
5.05 COUNTERPARTS. This Agreement may be executed in multiple counterparts,
each of which constitutes an original.
5.06 WAIVERS; AMENDMENTS. The observance or performance of any covenant or
obligation imposed upon the Borrower under any provision of this Agreement may
be waived in writing by the Lender and the same shall then be effective only
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for the period on the conditions and for the specific instances and purposes
specified in such writing; provided, however, that no such waiver shall extend
to or affect any obligation not expressly waived or impair any right consequent
thereto. No modification of any provision of this Agreement or of any Note
shall be effective unless made in writing by the Borrower and the Lender.
5.07 SUCCESSORS AND ASSIGNS; ASSIGNMENT. This Agreement shall be binding
upon and inure to the benefit of the Borrower and the Lender and their
respective successors and assigns, except that the Borrower may not assign or
transfer any of its rights or obligations hereunder or any interest herein
without the prior written consent of the Lender. The Lender may assign this
Agreement and all of its rights and obligations hereunder to any wholly owned
corporate subsidiary of Lender. Except to the extent otherwise required by its
context, the word "Lender" where used in this Agreement shall mean and include
the holder of the Notes originally issued to the Lender, and the holder of such
Notes shall be bound by and have the benefits of this Agreement the same as if
such holder had been a signatory hereto.
5.08 SEVERABILITY. The provisions of this Agreement and of the other Loan
Documents are severable, and if any clause or provision of this Agreement or of
any other Loan Document shall be held invalid or unenforceable in whole or in
part in any jurisdiction, then such clause or provision shall, as to such
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without in any manner affecting the validity or enforceability
of such clause or provision in any other jurisdiction or the remaining
provisions hereof and of the other Loan Documents in any jurisdiction. It is
hereby stipulated and declared to be the intention of the parties that they
would have executed the remaining terms, provisions, covenants and restrictions
without including any of such which may be hereafter declared invalid, void or
unenforceable.
5.09 ENTIRE AGREEMENT. This Agreement supersedes all prior understandings
and agreements, whether written or oral, among the parties hereto relating to
the transactions provided for herein.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be
effective as of the day and year first above written.
ATTEST: ARISTECH CHEMICAL CORPORATION
By: /s/ D. F. TUTHILL By: /s/ W. D. WALSTON
-------------------- ----------------------------
Treasurer
Title: Secretary
------------------
ATTEST: MITSUBISHI INTERNATIONAL CORPORATION
By: /s/ Y. SAKATA By: /s/ H. TAKEUCHI
-------------------- ----------------------------
General Manager,
Finance Division
Title: Manager, Project Finance
-------------------------
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EXHIBIT A
ARISTECH CHEMICAL CORPORATION
TERM NOTE
U.S. $100,000,000 Pittsburgh, Pennsylvania
August 1, 1994
For value received, ARISTECH CHEMICAL CORPORATION (the "BORROWER") hereby
promises to pay to the order of MITSUBISHI INTERNATIONAL CORPORATION
("LENDER"), on or before the Maturity Date, the principal sum of U.S.
$100,000,000, payable in accordance with the provisions of that certain Term
Loan and Revolving Credit Agreement, dated as of August 1, 1994, entered into
by and between Borrower and Lender (the "AGREEMENT"), together with interest on
the unpaid principal balance hereof as provided in the Agreement. All
initially capitalized terms used herein without definition shall have the
meanings attributed to such terms in the Agreement unless the context clearly
requires otherwise.
Interest shall be due and payable on each Interest Payment Date, determined
in accordance with the Agreement, until the principal balance of the Term Loan
is paid in full.
If any amount payable by the Borrower under this Note (including the
principal hereof and interest hereon) is not paid when due (whether at stated
maturity or otherwise), interest shall accrue on such amount to the extent
permitted by applicable law from the due date thereof to but excluding the date
such amount is paid in full at the rate set forth in Section 2.04(c) of the
Agreement.
The Borrower shall have the right, at the Borrower's option exercisable by
delivery of three (3) days' prior written notice to Lender, to pay the Term
Loan in whole or part on any Interest Payment Date and to pay the whole or any
part of the portion of the Term Loan subject to the Alternate Base Rate on any
date, in either case without premium or penalty; provided, however, that the
minimum prepayment amount with respect to the Term Loan shall be $500,000. If
the Borrower prepays a portion of the Term Loan subject to the LIBO Rate on a
day other than an Interest Payment Date, the Borrower shall compensate Lender
for any losses as set forth in Section 2.03(b) of the Agreement.
If any payment of principal or interest on this Note comes due and payable
on a day that is not a Business Day, such payment shall be payable on the next
succeeding Business Day.
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This Note is issued under, and is subject to the terms and conditions of,
the Agreement.
All payments of principal and interest hereunder shall be paid when due
without presentment, demand, protest or notice of any kind, all of which are
hereby expressly waived.
This Note shall be governed by and construed and interpreted in accordance
with the law, without regard to principles governing choice of law, of the
State of New York.
IN WITNESS WHEREOF, the Borrower has caused this Note to be executed by its
duly authorized officer this 1st day of August, 1994.
ARISTECH CHEMICAL CORPORATION
By:
------------------------------
Title:
---------------------------
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EXHIBIT B
ARISTECH CHEMICAL CORPORATION
REVOLVING CREDIT NOTE
U.S. $100,000,000 Pittsburgh, Pennsylvania
August 1, 1994
For value received, ARISTECH CHEMICAL CORPORATION (the "BORROWER") hereby
promises to pay to the order of MITSUBISHI INTERNATIONAL CORPORATION
("LENDER"), on or before the Maturity Date, the principal sum of U.S.
$100,000,000, or such lesser amount as may be unpaid and outstanding under that
certain Term Loan and Revolving Credit Agreement, dated as of August 1, 1994,
entered into by and between Borrower and Lender (the "AGREEMENT"), together
with interest on the unpaid principal balance hereof as provided in the
Agreement. All initially capitalized terms used herein without definition
shall have the meanings attributed to such terms in the Agreement unless the
context clearly requires otherwise.
Interest shall be due and payable on each Interest Payment Date, determined
in accordance with the Agreement, until the principal balance of all Revolving
Credit Loans is paid in full.
If any amount payable by the Borrower under this Note (including the
principal hereof and interest hereon) is not paid when due (whether at stated
maturity or otherwise), interest shall accrue on such amount to the extent
permitted by applicable law from the due date thereof to but excluding the date
such amount is paid in full at the rate set forth in Section 3.04(c) of the
Agreement.
The Borrower shall have the right, at the Borrower's option exercisable by
delivery of three (3) days prior written notice to Lender, to pay the Revolving
Credit Loans in whole or part on any Interest Payment Date and to pay the whole
or any part of the portion of the Revolving Credit Loans subject to the
Alternate Base Rate on any date, in either case without premium or penalty;
provided, however, that the minimum prepayment amount with respect to the
Revolving Credit Loans shall be $500,000. If the Borrower prepays a portion of
the Revolving Credit Loan subject to the LIBO Rate on a day other than an
Interest Payment Date, the Borrower shall compensate Lender for any losses as
set forth in Section 3.03(b) of the Agreement.
If any payment of principal or interest on this Note comes due and payable
on a day that is not a Business Day, such payment shall be payable on the next
succeeding Business Day.
18
This Note is issued under, and is subject to the terms and conditions of,
the Agreement.
All payments of principal and interest hereunder shall be paid when due
without presentment, demand, protest or notice of any kind, all of which are
hereby expressly waived.
This Note shall be governed by and construed and interpreted in accordance
with the law, without regard to principles governing choice of law, of the
State of New York.
IN WITNESS WHEREOF, the Borrower has caused this Note to be executed by its
duly authorized officer this 1st day of August, 1994.
ARISTECH CHEMICAL CORPORATION
By:
------------------------------
Title:
---------------------------
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19
FIRST AMENDMENT
This First Amendment, dated as of January 4, 1995, by and between ARISTECH
CHEMICAL CORPORATION, a Delaware corporation (the "BORROWER"), and MITSUBISHI
INTERNATIONAL CORPORATION, a Delaware corporation (the "LENDER"),
WITNESSETH THAT:
WHEREAS, the Borrower and the Lender entered into a Term Loan and Revolving
Credit Agreement dated as of August 1, 1994 (the "ORIGINAL AGREEMENT"); and
WHEREAS, the Borrower and the Lender desire to amend the Original Agreement
to, inter alia, increase the amount of revolving credit loans available to the
Borrower and extend the maturity date of the Original Agreement;
NOW, THEREFORE, the parties hereto, intending to be legally bound hereby,
agree as follows:
1. Definitions. Except as set forth herein, terms used in this First
Amendment which are defined in the Original Agreement are herein used as
therein defined.
2. Change in Maturity Date. The definition of Maturity Date contained in
Section 1.01 of the Original Agreement is hereby amended to read in full as
follows:
"MATURITY DATE" shall mean 3:00 p.m., New York time, on March 31, 1995 or
such later date as may be mutually agreed by the Borrower and the Lender at
such time.
3. Increase in Amount of Revolving Credit Loans. The first sentence of
Section 3.01 of the Original Agreement is hereby amended to read in full as
follows:
Subject to the terms and conditions hereof, the Lender shall make Revolving
Credit Loans to Borrower from time to time at Borrower's request, the
aggregate outstanding principal amount of which shall not exceed
20
Two Hundred Fifty Million Dollars (U.S. $250,000,000) at any time, which
Loans Borrower may repay and reborrow from time to time until the Maturity
Date.
4. Effectiveness. This First Amendment shall become effective immediately
upon (a) execution and delivery by the Borrower and the Lender of this First
Amendment; (b) execution and delivery by the Borrower of the Revolving Credit
Note, the form of which is attached to this First Amendment as Exhibit A
hereto; and (c) execution and delivery by Mitsubishi Corporation of an
Affirmation of Guarantee, the form of which is attached to this First Amendment
as Exhibit B. Immediately upon the effectiveness of this First Amendment, the
Lender shall deliver to the Borrower the Borrower's Revolving Credit Note dated
August 1, 1994 in the principal amount of U.S. $100,000,000, marked
"cancelled".
5. Miscellaneous.
(a) Except as specifically amended by the provisions hereof, the Original
Agreement shall remain in full force and effect.
(b) This First Amendment may be executed in any number of counterparts
each of which, when so executed and delivered by all parties, shall be an
original, but all such counterparts shall together constitute but one and the
same instrument.
(c) This First Amendment shall be governed by the laws of the State of New
York, excluding its rules relating to the conflict of laws.
IN WITNESS WHEREOF, the parties hereto have executed this First Amendment as
of the day and year first above written.
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21
ARISTECH CHEMICAL CORPORATION
By: /s/ W. D. WALSTON
---------------------------
Title: Treasurer
------------------------
MITSUBISHI INTERNATIONAL
CORPORATION
By: /s/ H. TAKEUCHI
---------------------------
Title: General Manager,
Finance Division
------------------------
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22
Exhibit A
ARISTECH CHEMICAL CORPORATION
REVOLVING CREDIT NOTE
U.S. $250,000,000 Pittsburgh, Pennsylvania
January 4, 1995
For value received, ARISTECH CHEMICAL CORPORATION (the "BORROWER") hereby
promises to pay to the order of MITSUBISHI INTERNATIONAL CORPORATION (the
"LENDER"), on or before the Maturity Date, the principal sum of U.S.
$250,000,000, or such lesser amount as may be unpaid and outstanding under that
certain Term Loan and Revolving Credit Agreement, dated as of August 1, 1994,
entered into by and between Borrower and Lender, as the same may be amended,
modified or supplemented from time to time (the "AGREEMENT"), together with
interest on the unpaid principal balance hereof as provided in the Agreement.
All initially capitalized terms used herein without definition shall have the
meanings attributed to such terms in the Agreement unless the context clearly
requires otherwise.
Interest shall be due and payable on each Interest Payment Date, determined
in accordance with the Agreement, until the principal balance of all Revolving
Credit Loans is paid in full.
If any amount payable by the Borrower under this Note (including the
principal hereof and interest hereon) is not paid when due (whether at stated
maturity or otherwise), interest shall accrue on such amount to the extent
permitted by applicable law from the due date thereof to but excluding the date
such amount is paid in full at the rate set forth in Section 3.04(c) of the
Agreement.
The Borrower shall have the right, at the Borrower's option exercisable by
delivery of three (3) Business Days prior written notice to Lender, to pay the
Revolving Credit Loans in whole or part on any Interest Payment Date and to pay
the whole or any part of the portion of the Revolving Credit Loans subject to
the Alternate Base Rate on any date, in either case without premium or penalty;
provided, however, that the minimum prepayment amount with respect to the
Revolving Credit Loans shall be $500,000. If the Borrower prepays a portion of
the Revolving Credit Loan subject to the LIBO Rate on a day other than an
Interest Payment Date, the Borrower shall compensate Lender for any losses as
set forth in Section 3.03(b) of the Agreement.
If any payment of principal or interest on this Note comes due and payable
on a day that is not a Business Day, such payment shall be payable on the next
succeeding Business Day.
23
This Note is issued under, and is subject to the terms and conditions of,
the Agreement.
All payments of principal and interest hereunder shall be paid when due
without presentment, demand, protest or notice of any kind, all of which are
hereby expressly waived.
This Note shall be governed by and construed and interpreted in accordance
with the law, without regard to principles governing choice of law, of the
State of New York.
IN WITNESS WHEREOF, the Borrower has caused this Note to be executed by its
duly authorized officer this 4th day of January, 1995.
ARISTECH CHEMICAL CORPORATION
By:
------------------------------
Title:
---------------------------
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24
Exhibit B
AFFIRMATION OF GUARANTEE
Pursuant to the Guarantee Letter dated July 25, 1994 and effective as of
August 1, 1994 (the "GUARANTEE"), in favor of Mitsubishi International
Corporation (the "LENDER") and in accordance with the terms thereof, the
undersigned Guarantor (as defined therein) has absolutely and unconditionally
guaranteed the full payment and performance of all indebtedness, obligations
and liabilities of Aristech Chemical Corporation, a Delaware corporation (the
"COMPANY") to the Lender under the Term Loan and Revolving Credit Agreement
dated as of August 1, 1994 (the "CREDIT AGREEMENT") and any other documents and
agreements contemplated thereby or relating thereto.
The undersigned Guarantor hereby consents and agrees to all amendments to
the Credit Agreement as of the date hereof, including the First Amendment,
dated as of January 4, 1995 by and between the Company and the Lender, and all
transactions contemplated thereby; and further affirms that the Guarantee
remains in full force and effect, and that the liability of the Guarantor
thereunder is not discharged or diminished in any way whatsoever.
WITNESS the due execution hereof as of the effective date of the First
Amendment.
MITSUBISHI CORPORATION
By:
-----------------------
Title:
--------------------
25
SECOND AMENDMENT
This Second Amendment, dated as of March 31, 1995, by and between ARISTECH
CHEMICAL CORPORATION, a Delaware corporation (the "BORROWER"), and MITSUBISHI
INTERNATIONAL CORPORATION, a Delaware corporation (the "LENDER"),
WITNESSETH THAT:
WHEREAS, the Borrower and the Lender entered into a Term Loan and Revolving
Credit Agreement dated as of August 1, 1994, as amended by the First Amendment
dated as of January 4, 1995 (as amended, the "ORIGINAL AGREEMENT"); and
WHEREAS, the Borrower and the Lender desire to amend the Original Agreement
to extend the maturity date of the Original Agreement;
NOW, THEREFORE, the parties hereto, intending to be legally bound hereby,
agree as follows:
1. Definitions. Except as set forth herein, terms used in this First
Amendment which are defined in the Original Agreement are herein used as
therein defined.
2. Change in Maturity Date. The definition of Maturity Date contained in
Section 1.01 of the Original Agreement is hereby amended to read in full as
follows:
"MATURITY DATE" shall mean 3:00 p.m., New York time, on March 31, 1996.
3. Effectiveness. This Second Amendment shall become effective immediately
upon execution and delivery by the Borrower and the Lender of this Second
Amendment.
4. Miscellaneous.
26
(a) Except as specifically amended by the provisions hereof, the Original
Agreement shall remain in full force and effect.
(b) This Second Amendment may be executed in any number of counterparts
each of which, when so executed and delivered by all parties, shall be an
original, but all such counterparts shall together constitute but one and the
same instrument.
(c) This Second Amendment shall be governed by the laws of the State of
New York, excluding its rules relating to the conflict of laws.
IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment
as of the day and year first above written.
ARISTECH CHEMICAL CORPORATION
By: /s/ W.D. WALSTON
---------------------------------
Title: Treasurer
------------------------------
MITSUBISHI INTERNATIONAL
CORPORATION
By: /s/ H. TAKEUCHI
---------------------------------
Title: General Manager, Finance Div.
------------------------------
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27
THIRD AMENDMENT
This Third Amendment, dated as of March 31, 1996, by and between
ARISTECH CHEMICAL CORPORATION, a Delaware corporation (the "BORROWER"), and
MITSUBISHI INTERNATIONAL CORPORATION, a Delaware corporation (the "LENDER"),
WITNESSETH THAT:
WHEREAS, the Borrower and the Lender entered into a Term Loan and
Revolving Credit Agreement dated as of August 1, 1994, as amended by the First
Amendment dated as of January 4, 1995, as amended by the Second Amendment dated
as of March 31, 1995 (as amended, the "ORIGINAL AGREEMENT"); and
WHEREAS, the Borrower and the Lender desire to amend the Original
Agreement to extend the maturity date of the Original Agreement;
NOW, THEREFORE, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. Definitions. Except as set forth herein, terms used in this
Third Amendment which are defined in the Original Agreement are herein used as
therein defined.
2. Change in Maturity Date. The definition of Maturity Date
contained in Section 1.01 of the Original Agreement is hereby amended to read
in full as follows:
"Maturity Date" shall mean 3:00 p.m., New York time, on March 31, 1997
or such later date as may be mutually agreed by the Borrower and the
Lender.
3. Effectiveness. This Third Amendment shall become effective
immediately upon execution and delivery by the Borrower and the Lender of this
Third Amendment.
4. Miscellaneous.
28
(a) Except as specifically amended by the provisions hereof, the
Original Agreement shall remain in full force and effect.
(b) This Third Amendment may be executed in any number of
counterparts each of which, when so executed and delivered by all parties,
shall be an original, but all such counterparts shall together constitute but
one and the same instrument.
(c) This Third Amendment shall be governed by the laws of the
State of New York, excluding its rules relating to the conflict of laws.
IN WITNESS WHEREOF, the parties hereto have executed this Third
Amendment as of the day and year first above written.
ARISTECH CHEMICAL CORPORATION
By: /s/ W.D. WALSTON
------------------------------------
Title: Treasurer
---------------------------------
MITSUBISHI INTERNATIONAL CORPORATION
By: /s/ H. TAKEUCHI
-------------------------------------
Title: Vice President & General Manager
----------------------------------
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29
Fourth Amendment
This Fourth Amendment, dated as of September 30, 1996, by and between
Aristech Chemical Corporation, a Delaware corporation (the "BORROWER") and
Mitsubishi International Corporation, a Delaware corporation (the "LENDER"),
WITNESSETH THAT:
WHEREAS, the Borrower and the Lender entered into a Term Loan and
Revolving Credit Agreement dated as of August 1, 1994, as amended by the First
Amendment dated as of January 4, 1995, as amended by the Second Amendment dated
as of March 31, 1995, and as amended by the Third Amendment dated as of March
31, 1996 (as amended, the "ORIGINAL AGREEMENT"); and
WHEREAS, the Borrower and the Lender desire to amend the Original
Agreement to, among other things, divide the amount of the revolving credit
loans available to the Borrower into two tranches, adjust maturity dates
thereof, and adjust the payment of interest thereof;
NOW, THEREFORE, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. Definitions
Except as herein set forth, terms used in this Fourth Amendment which
are defined in the Original Agreement are herein used as therein defined.
2. Change in Maturity Date
The definition of Maturity Date contained in Section 1.01 of the
Original Agreement is hereby amended to read in full as follows:
"Maturity Date" shall mean:
30
(a) For Tranche A, 3:00 p.m., New York time, on April 18,
2002 or such later date as may be mutually agreed by
the Borrower and the Lender at or before such time.
(b) For Tranche B, 3:00 p.m., New York time, on March 31,
1997 or such later date as may be mutually agreed by
the Borrower and the Lender at or before such time.
3. Division of Amount of Revolving Credit Loans into Two Tranches
A second and third paragraphs are added to Section 3.01 of the
Original Agreement to read in their entirety as follows:
The Two Hundred Fifty Million Dollar ($250,000,000.00) maximum
aggregate outstanding principal amount shall be divided into a Tranche
A which shall have a One Hundred Fifty Million Dollar
($150,000,000.00) maximum aggregate outstanding principal amount
("Tranche A") and a Tranche B which shall have a One Hundred Million
Dollar ($100,000,000.00) maximum aggregate outstanding principal
amount ("Tranche B"). The parties agree that all borrowings
outstanding under the Revolving Credit Loans as of September 30, 1996
shall be Tranche A borrowings. If loans are taken in the future, the
Borrower will designate in writing from which tranche they are being
made.
Notwithstanding anything herein to the contrary, Tranche B
will terminate automatically upon the successful completion of the
Borrower's issuance of One Hundred Fifty Million Dollars
($150,000,000.00) of 10-year notes in a debt
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31
offering to be placed through Merrill Lynch & Co., et al., which debt
offering is scheduled for completion in November 1996, or such later
date as determined by the Borrower (the "Offering"). Any amounts
outstanding under Tranche B at the time of such termination shall
become immediately due and payable upon such termination. The
Borrower shall provide the Lender with reasonably satisfactory written
notice of the successful completion of the Offering and the date of
such completion as soon as possible after its completion.
4. Change in Payment of Interest
Section 3.04(a)(i) of the Original Agreement is amended, effective as
of the date of the Offering, to read in its entirety as follows:
(i) 0.1875% in excess of the LIBO Rate or.
5. Effectiveness
This Fourth Amendment shall become effective immediately upon
execution and delivery by the Borrower and Lender of this Fourth Amendment.
6. Miscellaneous
(a) Except as specifically amended by the provisions hereof, the
Original Agreement shall remain in full force and effect.
(b) This Fourth Amendment may be executed in counterparts, each of
which, when so executed and delivered by all parties, shall be
an original, but all such counterparts shall together
constitute but one and the same instrument.
- 3 -
32
(c) This Fourth Amendment shall be governed by the laws of the
State of New York, excluding its rules relating to the
conflict of laws.
IN WITNESS WHEREOF, the parties hereto have executed this Fourth
Amendment as of the day and year first above written.
ARISTECH CHEMICAL CORPORATION
By: /s/ W.D. WALSTON
----------------------------------
Title: Treasurer
-------------------------------
MITSUBISHI INTERNATIONAL CORPORATION
By: /s/ M. BANDO
----------------------------------
Title: S.V.P., COO, CHEMICALS GROUP
-------------------------------
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