Exhibit 4.4
FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment") dated as of March 22, 2002, is entered into by and among ETHYL
CORPORATION, a Virginia corporation (the "Borrower"), the Subsidiary Guarantors
signatory hereto, the Banks signatory hereto and BANK OF AMERICA, N.A., as
Administrative Agent for he Banks (in such capacity, the "Administrative
Agent").
RECITALS
A. The Borrower, the Subsidiary Guarantors, the Banks and the
Administrative Agent are party to that certain Amended and Restated
Competitive Advance, Revolving Credit Facility and Term Loan Agreement
dated as of November 14, 1997 (as amended by that certain First Amendment
and Restatement of Amended and Restated Credit Agreement dated as of April
10, 2001, that certain Second Amendment to Amended and Restated Credit
Agreement dated as of December 3, 2001 and that certain Third Amendment
to Amended and Restated Credit Agreement dated as of January 15, 2002,
"the Existing Credit Agreement").
B. The Credit Parties have requested that the Banks amend the Existing
Credit Agreement as provided herein.
C. The Banks have agreed to amend the Existing Credit Agreement on the
terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the agreements herein contained,
the parties hereto hereby agree as follows:
PART I
DEFINITIONS
SUBPART 1.1 Certain Definitions. Unless otherwise defined herein or
the context otherwise requires, the following terms used in this Amendment,
including its preamble and recitals, have the following meanings:
"Amended Credit Agreement" means the Existing Credit Agreement as
amended hereby.
"Amendment No. 4 Effective Date" is defined in Part III.
SUBPART 1.2 Other Definitions. Unless otherwise defined herein or the
context otherwise requires, terms used in this Amendment, including its
preamble and recitals, have the meanings provided in the Existing Credit
Agreement.
PART II
AMENDMENTS TO EXISTING CREDIT AGREEMENT
Effective on (and subject to the occurrence of) the Amendment No. 4
Effective Date, the Existing Credit Agreement is hereby amended in accordance
with this Part II.
SUBPART 2.1 Amendment to Section 1.1. The following new definitions are
hereby added to Section 1.1 of the Existing Credit Agreement in the appropriate
alphabetical order and shall read as follows:
"Airplane" means that certain airplane and related property described
on Schedule 1.1(c) attached hereto.
"Permitted Airplane Financing" means that certain nonrecourse loan
(secured by the Airplane) in a principal amount satisfactory to the
Required Lenders, provided that (i) no part of the principal amount of such
loan shall have a maturity date earlier than six months following the
Maturity Date and (ii) such loan contains terms and conditions satisfactory
to the Required Banks.
"Required New Term Loan Banks" shall mean a Bank or Banks (other than
Defaulting Banks) holding in the aggregate at least 75% of the outstanding
New Term Loan (and Participation Interests therein).
"Required Revolving Banks" shall mean a Bank or Banks (other than
Defaulting Banks) holding in the aggregate at least 75% of (i) the
Revolving Commitments (and Participation Interests therein) or (ii) if all
of the Revolving Commitments have been terminated, the outstanding
Revolving Loans and LOC Obligations (and any Participation Interests in the
Revolving Loans and LOC Obligations).
"Required Term Loan Banks" shall mean a Bank or Banks (other than
Defaulting Banks) holding in the aggregate at least 75% of the Outstanding
Term Loan (and Participation Interests therein).
"Unused Fee" shall have the meaning assigned to such term in Section
3.5(a).
"Unused Fee Calculation Period" shall have the meaning assigned to
such term in Section 3.5(a).
"Unused Revolving Committed Amount" means, for any period, the amount
by which (a) the then applicable Revolving Committed Amount exceeds (b) the
daily average sum for such period of (i) the outstanding aggregate
principal amount of all Revolving Loans plus (ii) the outstanding aggregate
principal amount of all LOC Obligations.
SUBPART 2.2 Amendment to Section 1.1. The following definitions in
Section 1.1 of the Existing Credit Agreement are hereby amended and restated in
their entirety to read as follows:
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"Applicable Percentage" means, for purposes of calculating the
applicable interest rate for any day for any Loan, the applicable rate of
the Unused Fee for any day for purposes of Section 3.5(a), the applicable
rate of the Standby Letter of Credit Fee for any day for purposes of
Section 3.5(b)(i) or the applicable rate of the Trade Letter of Credit Fee
for any day for purposes of Section 3.5(b)(ii), the appropriate applicable
percentage corresponding to the Leverage Ratio in effect as of the most
recent Calculation Date:
Applicable Percentages
-----------------------------------------------------------------------------
Pricing Leverage Ratio For Revolving Loans, For Standby For Trade For Unused
Level Term Loan and New Letter of Letter of Fee
Term Loan Credit Fee Credit Fee
------------------------------
Eurodollar Base Rate
Loans Loans
- -------------------------------------------------------------------------------------------------------
<s><c>
I (greater than)
4.0 to 1.0 4.25% 3.25% 4.25% 2.25% 0.50%
- -------------------------------------------------------------------------------------------------------
II (less than
or equal to)
4.0 to 1.0 3.75% 2.75% 3.75% 2.00% 0.50%
but (greater than)
3.5 to 1.0
- -------------------------------------------------------------------------------------------------------
III (less than or
equal to)
3.5 to 1.0 3.50% 2.50% 3.50% 1.75% 0.50%
but (greater than)
3.0 to 1.0
- -------------------------------------------------------------------------------------------------------
IV (less than or
equal to)
3.0 to 1.0 3.00% 2.00% 3.00% 1.50% 0.50%
- -------------------------------------------------------------------------------------------------------
The Applicable Percentages shall be determined and adjusted quarterly on
the date (each a "Calculation Date") five Business Days after the date by
which the Credit Parties are required to provide the officer's certificate
in accordance with the provisions of Section 7.1(d) for the most recently
ended fiscal quarter of the Consolidated Parties; provided, however, if the
Credit Parties fail to provide the officer's certificate to the Agency
Service Address as required by Section 7.1(d) for the last day of the most
recently ended fiscal quarter of the Consolidated Parties preceding the
applicable Calculation Date, the Applicable Percentage from such
Calculation Date shall be based on Pricing Level I until such time as an
appropriate officer's certificate is provided, whereupon the Applicable
Percentages shall be determined by the Leverage Ratio as of the last day of
the most recently ended fiscal quarter of the Consolidated Parties
preceding such Calculation Date. Each Applicable Percentage shall be
effective from one Calculation Date until the next Calculation Date. Any
adjustment in the Applicable Percentages shall be applicable to all
existing Loans and Letters of Credit as well as any new Loans and Letters
of Credit made or issued.
"Consolidated EBITDA" means, as of any date for the four fiscal
quarter period ending on such date with respect to the Consolidated Parties
on a consolidated basis, the sum of (i) Consolidated Net Income, plus (ii)
an amount which, in the determination of Consolidated Net Income, has been
deducted for (A) interest expense, (B) total Federal, state, local and
foreign income taxes and (C) depreciation and amortization expense, all as
determined in accordance with GAAP plus (iii) for the fiscal quarters
ending March 31, 2001 and June 30, 2001, non-recurring charges (to the
extent charged during such applicable fiscal
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quarter) associated with the corporate restructuring of the Consolidated
Parties plus (iv) the excise taxes and expenses related to the termination
of the Ethyl Corporation Pension Plan to the extent not included in the
subclauses (ii) and (iii) above plus (v) all non-cash charges recorded in
such period associated with the requirements of Statement of Financial
Accounting Standards No. 87 and No. 88, as amended plus (vi)(a) the amount
of fees and expenses of Ernst & Young Corporate Finance LLC (in its
capacity as consultant to the Banks) paid by the Borrower during such
period, (b) the amount of fees and expenses of the financial advisor to the
Borrower retained pursuant to the terms of the Second Amendment to Amended
and Restated Credit Agreement paid by the Borrower during such period, (c)
the amount of fees and expenses of the financial advisor to the Borrower
retained pursuant to the terms of the Fourth Amendment to Amended and
Restated Credit Agreement paid during such period and (d) the amount of
appraisal costs related to the appraisals provided pursuant to Sections
7.18 and 7.19 hereof paid by the Borrower during such period plus (vii) the
amount of fees paid to the Banks in connection with the Fourth Amendment to
Amended and Restated Credit Agreement during such period plus (viii) all
non-cash charges related to intangible assets and/or equity securities made
during such period minus (ix) all non-cash income recorded in such period
associated with the requirements of Statement of Financial Accounting
Standards No. 87 and 88, as amended minus (x) (a) all non-recurring income
items during such period (included in Consolidated Net Income for such
period) in excess of $500,000 and (b) to the extent not deducted in
subclause (a) above, all non-recurring income items during such period
(included in Consolidated Net Income) which in the aggregate exceed
$1,000,000 minus (xi) any gain related to the write-up of equity securities
made during such period; provided, that Consolidated EBITDA for any fiscal
period ending on or before December 31, 2000 which is defined in Schedule
1.1(a) shall be deemed to equal the amount set forth on Schedule 1.1(a)
opposite such period.
"Debt Issuance Prepayment Event" means the receipt by any Consolidated
Party of proceeds from any Debt Issuance other than an Excluded Debt
Issuance.
"Excess Cash Flow" means, with respect to any fiscal year period of
the Consolidated Parties on a consolidated basis, an amount equal to (a)
Consolidated EBITDA minus (b) Consolidated Capital Expenditures minus (c)
Consolidated Interest Expense minus (d) Federal, state and other income
taxes payable in respect of such period by the Consolidated Parties on a
consolidated basis minus (e) Consolidated Scheduled Funded Debt Payments
minus (f) the amount of any voluntary prepayments of the Term Loan, the New
Term Loan or (to the extent accompanied by a permanent reduction in the
Revolving Committed Amount) the Revolving Loans minus (g) the amount of
cash payments made with respect to the corporate restructuring charges of
the Consolidated Parties during such fiscal year period minus (h) cash
payments made with respect to accrued expenses recorded in earlier periods
to the extent not included in changes in Consolidated Working Capital
identified below) minus (i) increases in Consolidated Working Capital plus
(j) decreases in Consolidated Working Capital with all working capital
changes for both (i) and (j) excluding the effects of foreign exchange.
"Extension Date" means March 1, 2003.
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"Interest Payment Date" means (a) as to Base Rate Loans, the last
Business Day of each calendar month, the date of repayment of principal of
such Loan and the Maturity Date, and (b) as to Eurodollar Loans, the last
day of each applicable Interest Period, the date of repayment of principal
of such Loan and the Maturity Date, and in addition where the applicable
Interest Period for a Eurodollar Loan is greater than one month, then also
the date one month from the beginning of the Interest Period and each month
thereafter.
"Maturity Date" means March 31, 2003, as such date may be extended
pursuant to Section 2.5.
"Net Cash Proceeds" means (i) with respect to any Asset Disposition,
Equity Issuance, Debt Issuance or Involuntary Disposition, the aggregate
proceeds paid in cash or Cash Equivalents received by any Consolidated
Party in respect of such Asset Disposition, Equity Issuance, Debt Issuance
or Involuntary Disposition, net of (a) reasonable direct costs (including,
without limitation, legal, accounting and investment banking fees, and
sales commissions) (b) taxes paid or payable as a result thereof and (c) in
the case of any Asset Disposition, the amount necessary to retire any
Indebtedness secured by a Permitted Lien (ranking senior to any Lien of the
Administrative Agent) on the related Property; it being understood that
"Net Cash Proceeds" shall include, without limitation, any cash or Cash
Equivalents received upon the sale or other disposition of any non-cash
consideration received by any such Consolidated Party in any Asset
Disposition, Equity Issuance, Debt Issuance or Involuntary Disposition, and
(ii) with respect to the Ethyl Corporation Pension Plan, the aggregate
reversion realized by the Borrower in connection with the termination of
such plan under a standard termination pursuant to Section 4041(b) of ERISA
and the standard termination notice filed by the Borrower with the PBGC on
March 30, 2001, net of amounts required to (a) pay all income and excise
taxes assessed against the reversion, (b) transfer to a replacement pension
plan the minimum amount necessary to cause such replacement plan to
constitute a "qualified replacement plan" (as such term is defined in
Section 4980(d)(2) of the Code) and (c) pay other expenses incurred in
connection with such termination.
SUBPART 2.3 Amendment to Section 1.1. The definitions of "B
Collateral", "Facility Fee", "Noteholders", "Qualified Asset-Based Financing",
"Qualified Lease Financing", Qualified Secured Financing", "Release of
Collateral Event", "Research and Development Facility", "Senior Note" and
"Senior Note Indenture" in Section 1.1 of the Existing Credit Agreement are each
hereby deleted in their entirety.
SUBPART 2.4 Amendment to 2.1(a). The first proviso in Section 2.1(a) of
the Existing Credit Agreement is hereby amended and restated in its entirety to
read as follows:
provided, however, that the sum of the aggregate outstanding principal
amount of Revolving Loans shall not exceed ONE HUNDRED FORTY SIX MILLION
DOLLARS ($146,000,000) (as such aggregate maximum amount may be reduced
from time to time as provided in Section 3.3 and Section 3.4, the Revolving
Committed Amount");
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SUBPART 2.5 Amendment to Section 2.2(a). Section 2.2(a) of the Existing
Credit Agreement is hereby amended and restated in its entirety to read as
follows:
(a) Issuance. Subject to the terms and conditions hereof and in
reliance upon the agreements of the other Banks set forth in Section 2.2(c)
and the representations and warranties set forth herein, the Issuing Lender
agrees to issue, and each Bank severally agrees to participate in the
issuance by the Issuing Lender of, standby and trade Letter of Credit in
Dollars from time to time from the Closing Date until the date fifteen (15)
days prior to the Maturity Date as the Borrower may request, in a form
acceptable to the Issuing Lender; provided, however, that (i) the LOC
Obligations outstanding shall not at any time exceed FIFTY FIVE MILLION
DOLLARS ($55,000,000) (as such aggregate maximum amount may be reduced from
time to time as provided in Section 3.3 and 3.4, the "LOC Committed
Amount") and (ii) the sum of the aggregate outstanding principal amount of
Revolving Loans plus LOC Obligations shall not at any time exceed the
Revolving Committed Amount. No Letter of Credit shall (x) have an original
expiry date more than one year from the date of issuance (provided that any
such Letter of Credit may contain customary "evergreen" provisions pursuant
to which the expiry date is automatically extended by a specific time
period not to exceed one year from the applicable expiry date unless the
Issuing Lender gives notice to the beneficiary of such Letter of Credit at
least a specified time period prior to the expiry date then in effect) or
(y) as originally issued, have an expiry date extending beyond the date
fifteen (15) days prior to the Maturity Date. If any Letter of Credit is
extended beyond the Maturity Date pursuant to customary "evergreen"
provisions as provided above, the Borrower shall, on the Maturity Date,
either (i) cause such Letter of Credit to be surrendered to the Issuing
Lender or (ii) provide cash collateral to the Issuing Lender in an amount
equal to at least 105% of the maximum amount available to be drawn under
such Letter of Credit. Each Letter of Credit shall comply with the related
LOC Documents. The issuance and expiry dates of each Letter of Credit shall
be a Business Day.
SUBPART 2.6 Amendment to Section 2.3(a). The second sentence of Section
2.3(a) of the Existing Credit Agreement is hereby amended and restated in its
entirety to read as follows:
As of March 26, 2002, the aggregate outstanding amount of the Term
Loan is FORTY FOUR MILLION SEVEN HUNDRED SEVENTY THREE THOUSAND NINE
HUNDRED SIXTY EIGHT DOLLARS ($44,773,968).
SUBPART 2.7 Amendment to Section 2.3(c). Section 2.3(c) of the Existing
Credit Agreement is hereby amended and restated in its entirety to read as
follows:
(c) Repayment of Term Loan. The principal amount of the Term Loan
shall be repaid in the amounts and on the dates set forth below, unless
accelerated sooner pursuant to Section 9.2.
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May 31, 2002 $5,000,000
August 31, 2002 $10,000,000
September 30, 2002 $5,000,000
November 30, 2002 $10,000,000
February 28, 2003 $10,000,000
March 31, 2003 $4,773,968
SUBPART 2.8 Amendment to Section 2.4(c). Section 2.4(c) of the Existing
Credit Agreement is hereby amended and restated in its entirety to read as
follows:
(c) Repayment of New Term Loan. As of March 26, 2002, the aggregate
outstanding amount of the New Term Loan is TWO HUNDRED FIVE MILLION SIX
HUNDRED NINETY THOUSAND EIGHT HUNDRED TWELVE DOLLARS ($205,690,812). The
principal amount of the New Term Loan shall be repaid in full on the
Maturity Date, unless accelerated sooner pursuant to Section 9.2; provided,
however, that if the Maturity Date is extended pursuant to Section 2.5, the
principal amount of the New Term Loan outstanding on the Extension Date
shall be repaid in installments of $10 million on May 31, 2003, August 31,
2003, November 30, 2003 and February 28, 2004, with the balance payable on
the Maturity Date, as may be executed pursuant to Section 2.5.
SUBPART 2.9 Amendment to Section 2.5. Section 2.5 of the Existing
Credit Agreement is hereby amended and restated in its entirety to read as
follows:
2.5 Extension of Maturity Date.
The Maturity Date shall be extended to March 31, 2004 if the following
conditions are satisfied:
(a) The Borrower shall have made payments on the Loans and/or
permanently reduced the Revolving Committed Amount such that the aggregate
outstanding amount of the term loan plus the New Term Loan plus the
Revolving Committed Amount shall be less than or equal to $323,500,000 on
or before the Extension Date;
(b) The amount of availability existing under the Revolving Committed
Amount shall not be less than $15,000,000 on the Extension Date;
(c) The Borrower shall have paid to the Administrative Agent, for the
account of each Bank, an extension fee equal to 0.50% of such Bank's
Commitment as of the Extension Date; and
(d) The Borrower shall have delivered a certification (as of the
Extension Date) to the Administrative Agent stating that the representation
and warranties set forth in Section 6 are true and correct in all material
respects as of such date (except for those which expressly relate
to an earlier date).
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SUBPART 2.10 Amendment to Section 3.3(a). The first two sentences of
Section 3.3(a) of the Existing Credit Agreement are hereby amended and restated
in their entirety to read as follows:
The Borrower shall have the right to repay Loans in whole or in part
from time to time; provided, however, that (i) each partial repayment of Loans
shall be in a minimum principal amount of $1,000,000 and integral multiples of
$100,000 in excess thereof (or the then remaining principal balance of the
Revolving Loans, the Term Loan or the New Term Loan, as applicable, if less) and
(ii) any prepayment of the Loans (other than the Revolving Loans) shall be
applied first to the installment of principal of the Term Loan due on March 31,
2003 (unless such installment payment has already been prepaid pursuant to
Section 3.3(b)) and second to the principal amount of the New Term Loan due on
the Maturity Date (and if the Maturity Date has been extended pursuant to
Section 2.5, to the remaining principal installments of the New Term Loan in the
inverse order of maturity thereof). Subject to the foregoing terms, amounts
prepaid under this Section 3.3(a) shall be applied as the Borrower may elect;
provided that if the Borrower shall fail to specify with respect to any
voluntary prepayment, such voluntary prepayment shall be applied first to
Revolving Loans and then to the Term Loan and the New Term Loan (to be applied
in the manner set forth above), in each case first to Base Rate Loans and then
to Eurodollar Loans in direct order in Interest Period maturities.
SUBPART 2.11 Amendment to Section 3.3(b)(ii). Section 3.3(b)(ii) of the
Existing Credit Agreement is hereby amended and restated in its entirety to read
as follows:
(ii) Excess Cash Flow. (A) Within 90 days after the end of the
fiscal year ending December 31, 2001, the Borrower shall prepay the Loans in an
amount equal to 90% of Excess Cash Flow for such fiscal year (such prepayment to
be applied as set forth in clause (vii) below). (B) Within 45 days after the end
of the eleven month period ending November 30, 2002, the Borrower shall prepay
the loans in an amount equal to 90% of Excess Cash Flow for such eleven month
period (such prepayment to be applied as set forth in clause (vii) below). (C)
If the Maturity Date is extended to March 31, 2004 pursuant to the terms of
Section 2.5, within 45 days after the end of each six month period ending May
31, 2003 and November 30, 2003, the Borrower shall prepay the Loans in an amount
equal to 90% of Excess Cash Flow for the applicable six month period ending as
of each such date (such prepayment to be applied as set forth in clause (vii)
below).
SUBPART 2.11 Amendment to Section 3.3(b)(iii). A new subclause (C) is
hereby added to Section 3.3(b)(iii) of the Existing Credit Agreement and shall
read as follows:
(C) Permitted Airplane Financing. Immediately upon the
consummation of the Permitted Airplane Financing, the Borrower
shall prepay the Loans in an aggregate amount equal to 100% of
the proceeds received from such Permitted Airplane Financing
(such prepayment to be applied as set forth in clause (vii)
below).
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SUBPART 2.13 Amendment to Section 3.3(b)(vii). The first sentence of
Section 3.3(b)(vii) of the Existing Credit Agreement is hereby amended and
restated in its entirety to read as follows:
All amounts required to be paid pursuant to this Section 3.3(b) shall
be applied as follows: (A) with respect to all amounts prepaid pursuant to
Section 3.3(b)(i)(A), to Revolving Loans and (after all Revolving Loans
have been repaid) to cash collateral account in respect of LOC Obligations,
(B) with respect to all amounts prepaid pursuant to Section 3.3(b)(i)(B),
to cash collateral account in respect of LOC Obligations, (C) with respect
to all amounts prepaid pursuant to Section 3.3(b)(ii), (iv), (v) or (vi),
first to the installment of principal of the Term Loan due on the Maturity
Date (unless such installment payment has already been prepaid pursuant to
Section 3.3(a) or (b)), second to the principal amount of the New Term Loan
due on the Maturity Date (and if the Maturity Date has been extended
pursuant to Section 2.5, to the remaining principal installments of the New
Term Loan in the inverse order of maturity thereof), third to the Revolving
Loans (with a corresponding permanent reduction of the Revolving Committed
Amount) and fourth after all Revolving Loans have been paid, to a cash
collateral account in respect of LOC Obligations (with a corresponding
permanent reduction of the Revolving Committed Amount and the LOC Committed
Amount) and (D) with respect to all amounts prepaid pursuant to Section
3.3(b)(iii): (i) with respect to any amounts received on or before
September 30, 2002, the first $5,000,000 of such amounts shall be applied
to the installment of principal of the Term Loan due on September 30, 2002,
with all such amounts in excess of $5,000,000 received on or before
September 30, 2002 to be applied first to the installment of principal of
the Term Loan due on the Maturity Date (unless such installment payment has
already been prepaid pursuant to Section 3.3(a) or (b)), second to the
principal amount of the New Term Loan due to the Maturity Date (and if the
Maturity Date has been extended pursuant to Section 2.5, to the remaining
principal installments of the New Term Loan in the inverse order of
maturity thereof), third to the Revolving Loans (with a corresponding
permanent reduction of the Revolving Committed Amount) and fourth after all
Revolving Loans have been paid, to a cash collateral account in respect of
LOC Obligations (with a corresponding permanent reduction in the Revolving
Committed Amount and the LOC Committed Amount) and (ii) with respect to any
amounts received after September 30, 2002, first to the installment of
principal of the Term Loan due on the Maturity Date (unless such
installment payment has already been prepaid pursuant to Section 3.3(a) or
(b)), second to the principal amount of the New Term Loan due on the
Maturity Date (and if the Maturity Date has been extended pursuant to
Section 2.5, to the remaining principal installments of the New Term Loan
in the inverse order of maturity thereof), third to the Revolving Loans
(with a corresponding permanent reduction of the Revolving Committed
Amount) and fourth after all Revolving Loans have been paid, to a cash
collateral account in respect of LOC Obligations (with a corresponding
permanent reduction in the Revolving Committed Amount and the LOC Committed
Amount).
SUBPART 2.14 Amendment to Section 3.4(d). Section 3.4(d) of the Existing
Credit Agreement is hereby amended and restated in its entirety to read as
follows:
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(d) Mandatory Reductions. The Revolving Committed Amount and the LOC
Committed Amount automatically shall be permanently reduced from time to
time in accordance with the provisions of Section 3.3(b)(vii). The
Revolving Committed Amount and the LOC Committed Amount shall also
automatically be permanently reduced by an amount equal to any reduction in
the amount available to be drawn under those certain Letters of Credit
required in connection with (i) self-insurance obligations of the Borrower
or any other Consolidated Party and (ii) environmental cleanup obligations
of the Borrower or any other Credit Party in the States of Louisiana and
Texas.
SUBPART 2.15 Amendment to Section 3.5(a). Section 3.5(a) of the Existing
Credit Agreement is hereby amended and restated in its entirety to read as
follows:
(a) Unused Fee. In consideration of the Revolving Commitments of the
Banks hereunder, the Borrower promises to pay to the Administrative Agent
for the account of each Bank a fee (the "Unused Fee") on the Unused
Revolving Committed Amount computed at a per annum rate for each day during
the applicable Unused Fee Calculation Period (hereinafter defined) at a
rate equal to the Applicable Percentage in effect from time to time. The
Unused Fee shall commence to accrue on March 26, 2002 and shall be due and
payable in arrears on the last Business Day of each March, June, September
and December (and on any date that the Revolving Committed Amount is
reduced and on the Maturity Date) for the immediately preceding quarter (or
portion thereof) (each such quarter or portion thereof for which the Unused
Fee is payable hereunder being herein referred to as an "Unused Fee
Calculation Period"), beginning with the first of such dates to occur after
March 26, 2002.
SUBPART 2.16 Amendment to Section 3.5(d). Section 3.5(d) of the Existing
Credit Agreement is hereby deleted in its entirety.
SUBPART 2.17 Amendment to Section 3.13(a). The reference to "Facility Fees"
in Section 3.13(a) of the Existing Credit Agreement is hereby replaced with a
reference to "Unused Fees".
SUBPART 2.18 Amendment to Section 7.1(e). The parenthetical in Section
7.1(e) of the Existing Credit Agreement is hereby amended and restated in its
entirety to read "(presented on a monthly basis)".
SUB PART 2.19 Amendment to Section 7.1(j). Section 7.1(j) of the Existing
Credit Agreement is hereby amended and restated in its entirety to read as
follows:
(j) Notices. Upon any Executive Officer of a Credit Party obtaining
knowledge thereof, the Credit Parties will give written notice to the
Administrative Agent immediately of (i) the occurrence of an event or
condition consisting of a Default or Event of Default, specifying the
nature and existence thereof and what action the Credit Parties have taken
or propose to take with respect thereto, (ii) the occurrence of any of the
following with respect to any Consolidated Party (A) the pendency or
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commencement of any litigation, arbitral or governmental proceeding against
such Person which if adversely determined reasonably could be expected to
have a Material Adverse Effect or (B) the institution of any proceedings
against such Person with respect to, or receipt of notice by such Person of
potential liability or responsibility for violation, or alleged violation
of any Federal, state or local law, rule or regulation, including but not
limited to, Environmental laws, the violation of which could reasonably be
expected to have a Material Adverse Effect and (iii) any reduction in the
self-insurance obligations of the Borrower or any other Consolidated Party.
SUBPART 2.20 Amendment to Section 7.1(l). The following sentence is hereby
added at the end of Section 7.1(l) of the Existing Credit Agreement and shall
read as follows:
Furthermore, promptly upon receipt of any written notice, written
report or other written information received by any Consolidated Party
related to the environmental cleanup obligations of the Consolidated
Parties in the States of Louisiana and Texas (including, without
limitation, any written information related to the amount of letters of
credit required to be provided in connection with such environmental
cleanup obligations), the Borrower will furnish, or cause to be furnished,
to the Administrative Agent and each of the Banks a copy of such written
notice, written report or other written information.
SUBPART 2.21 Amendment to Section 7.1(o). Section 7.1(o) of the Existing
Credit Agreement is hereby amended and restated in its entirety to read as
follows:
(o) Cash Flow Forecasts. As soon as available, and in any event within
three (3) Business Days after the close of each calendar week, commencing
with the calendar week ending March 30, 2002 (i) a rolling thirteen week
cash flow forecast of the Credit Parties (the "Cash Flow Forecast") for the
thirteen weeks immediately succeeding the week which has most recently
ended, each such forecast to be in form satisfactory to the Administrative
Agent and (ii) a reconciliation of actual cash receipts and disbursements
for the calendar week which has most recently ended against projected cash
receipts and disbursements for such calendar week contained in the Cash
Flow Forecast furnished to the Banks pursuant to this Section 7.1(o) during
the preceding week, such reconciliation to be in a form satisfactory to the
Administrative Agent.
SUBPART 2.22 New Section 7.1(p). A new subclause (p) is hereby added to
Section 7.1 of the Existing Credit Agreement and shall read as follows:
(p) Engine Oil. As soon as available, and in any event within 30 days
after the close of each calendar month, commencing with the calendar month
ending March 31, 2002, a cash flow report of the business referred to as
the engine oil business or crankcase business for the calendar month most
recently ended, each such report to be in a form satisfactory to the
Administrative Agent.
SUBPART 2.23 Amendment to Section 7.11. Section 7.11 of the Existing Credit
Agreement is hereby amended and restated in its entirety to read as follows:
11
7.11 Financial Covenants.
(a) Leverage Ratio. The Leverage Ratio, as of the last day of each fiscal
quarter of the Consolidated Parties occurring during each of the periods set
forth below, shall be less than or equal to:
Period Ratio
- ------ -----
From October 1, 2001 through December 31, 2001 4.85 to 1.0
From January 1, 2002 through June 30, 2002 4.75 to 1.0
From July 1, 2002 through September 30, 2002 4.5 to 1.0
From October 1, 2002 through December 31, 2002 4.25 to 1.0
From January 1, 2003 and thereafter 3.75 to 1.0
and, if the Maturity Date is extended pursuant to the terms of Section 2.5, the
Leverage Ratio, as of the last day of each fiscal quarter of the Consolidated
Parties occurring during each of the periods set forth below, shall be less than
or equal to:
Period Ratio
- ------ -----
From March 31, 2003 through June 30, 2003 3.75 to 1.0
From July 1, 2003 and thereafter 3.5 to 1.0
(b) Interest Coverage Ratio. The Interest Coverage Ratio, as of the last
day of each fiscal quarter of the Consolidated Parties occurring during each of
the periods set forth below, shall be greater than or equal to:
Period Ratio
- ------ -----
From October 1, 2001 through December 31, 2001 2.25 to 1.0
From January 1, 2002 through March 31, 2002 2.5 to 1.0
From April 1, 2002 through June 30, 2002 2.75 to 1.0
From July 1, 2002 through December 31, 2002 3.25 to 1.0
From January 1, 2003 and thereafter 3.50 to 1.0
12
and, if the Maturity Date is extended pursuant to the terms of Section 2.5, the
Interest Coverage Ratio, as of the last day of each fiscal quarter of the
Consolidated Parties occurring during each of the periods set forth below, shall
be greater than or equal to:
Period Ratio
- ------ -----
From March 31, 2003 and thereafter 3.50 to 1.0
(c) Consolidated EBITDA. Consolidated EBITDA for each period of the
Consolidated Parties shall not be less than (i) $76.5 million for the
twelve month period ending December 31, 2001 and (ii) $85 million for each
twelve month period ending as of each fiscal quarter end thereafter, and if
the Maturity Date is extended pursuant to the terms of Section 2.5,
Consolidated EBITDA for each period of the Consolidated Parties shall not
be less than (iii) $85 million for each twelve month period ending March
31, 2003 and June 30, 2003 and (iv) subsequent to June 30, 2003, $90
million for each twelve month period ending as of each fiscal quarter end
thereafter.
SUBPART 2.24 Amendment to Section 7.12. The words "unless the Release of
Collateral Event has occurred" are hereby deleted in their entirety from each of
subclauses (a), (b) and (c) of Section 7.12 of the Existing Credit Agreement.
SUBPART 2.25 Amendment to Section 7.13. The words "unless the Release of
Collateral Event has occurred" are hereby deleted in their entirety from both
sentences of Section 7.13 of the Existing Credit Agreement.
SUBPART 2.26 Amendment to Section 7.14. Section 7.14 of the Existing Credit
Agreement is hereby amended and restated in its entirety to read as follows:
7.14 Financial Advisor.
The Borrower shall on or before May 30, 2002 retain a financial advisor to
assist the Borrower in the evaluation of financing options and the development
of alternative sources of refinancing. The Borrower agrees that it will cause
such financial advisor to meet with the Administrative Agent and the Banks upon
the request of the Required banks; provided, that the Borrower shall have
received notice of such meeting at least ten Business Days prior to the date of
such meeting. Such meeting may, at the election of the Administrative Agent,
take place via teleconference or video conference. Furthermore, the Borrower
shall continue to retain PricewaterhouseCoopers LLP as a financial advisor to
the Borrower in the capacity described in the certain engagement letter between
the Borrower and PricewaterhouseCoopers LLP dated November 29, 2001.
SUBPART 2.27 Amendment to Section 7.18. The following new paragraph is
hereby added at the end of Section 7.18 of the Existing Credit Agreement and
shall read as follows:
The Credit parties shall also provide the Administrative Agent with written
appraisals of the assets of the Consolidated Parties identified in subpart B of
13
Schedule 7.18 attached hereto on or before the applicable date identified for
each such asset in subpart B of Schedule 7.18. Such appraisals shall be in form
and substance satisfactory to the Required Banks.
SUBPART 2.28 Amendment to Section 8.1. Sections 8.1(g) and (h) of the
Existing Credit Agreement are each hereby amended and restated in their entirety
to read as follows:
(g) Permitted Airplane Financing; provided, that one hundred percent
(100%) of the proceeds received therefrom are applied to the prepayment of
the Loans in accordance with Section 3.3(b)(iii)(C);
(h) [Reserved];
SUBPART 2.29 Amendment to Section 8.2. Sections 8.2(o), (p) and (q) of the
Existing Credit Agreement are each hereby amended and restated in their entirety
to read as follows:
(o) Liens on the Airplane to secure the Permitted Airplane Financing;
(p) [Reserved];
(q) [Reserved];
SUBPART 2.30 Amendment to Section 8.2. Section 8.2(s) of the Existing
Credit Agreement is hereby amended and restated in its entirety to read as
follows:
(s) Leins on cash in an amount not to exceed $325,000 in favor of one
of the Banks to secure the credit card program provided by such Bank and
described on Schedule 8.1; and
SUBPART 2.31 Amendment to Section 8.6. Section 8.6 of the Existing Credit
Agreement is hereby amended and restated in its entirety to read as follows:
8.6 Restricted Payments.
The Credit Parties will not permit any Consolidated Party to, directly or
indirectly, declare, order, make or set apart any sum for or pay any Restricted
Payment, except (a) to make dividends or other distributions payable to any
Credit Party (directly or indirectly through Subsidiaries), (b) as permitted by
Section 8.5, Section 8.7 or Section 8.8 and (c) if the Borrower decides to carry
out a reverse stock split, the Borrower may repurchase fractional shares of its
Capital Stock in an amount not to exceed $100,000 in the aggregate in connection
with such reverse stock split, provided, that no Default or Event of Default
exists immediately prior to or immediately after giving effect to any such
repurchase.
SUBPART 2.32 Amendment to Section 8.7. Section 8.7 of the Existing Credit
Agreement is hereby amended and restated in its entirety to read as follows:
14
8.7 Other Indebtedness.
The Credit Parties will not permit any Consolidated Party to (i) after the
issuance thereof, amend or modify any of the terms of any indebtedness of such
Consolidated Party if such amendment or modification would add or change any
terms in a manner adverse to such Consolidated Party, or shorten the final
maturity or average life to maturity or require any payment to be made sooner
than originally scheduled or increase the interest rate applicable thereto, or
(ii) make (or give any notice with respect thereto) any voluntary or optional
payment or prepayment or redemption or acquisition for value of (including
without limitation, by way of depositing money or securities with the trustee
with respect thereto before due for the purpose of paying when due), refund,
refinance or exchange of any other Indebtedness of such Consolidated Party
(other than any prepayment by any Consolidated Party of any Indebtedness owing
to a Credit Party). Neither the Richmond Campus Loan, nor the Permitted Airplane
Financing shall be amended or modified without the prior written consent of the
Required Banks.
SUBPART 2.33 Amendment to Section 8.10. Section 8.10 of the Existing Credit
Agreement is hereby amended and restated in its entirety to read as follows:
8.10 Limitation on Restricted Actions.
The Credit Parties will not permit any Consolidated Party to, directly or
indirectly, create or otherwise cause or suffer to exist or become effective any
encumbrance or restriction on the ability of any such Person to (a) pay
dividends or make any other distributions to any Credit Party on its Capital
Stock or with respect to any other interest or participation in, or measured by,
its profits, (b) pay any Indebtedness or other obligation owed to any Credit
Party, (c) make loans or advances to any Credit Party, (d) sell, lease or
transfer any of its properties or assets to any Credit Party, or (e) act as a
Credit Party and pledge its assets pursuant to the Credit Documents or any
renewals, refinancings, exchanges, refudings or extension thereof, except (in
respect of any of the matters referred to in clauses (a) through (d) above) for
such encumbrances or restrictions existing under or by reason of (i) this Credit
Agreement and the other Credit Documents, (ii) applicable law, (iii) any
document or instrument governing Indebtedness incurred pursuant to Section
8.1(c), provided that any such restriction contained therein relates only to the
asset or assets constructed or acquired in connection therewith, (iv) any
Permitted Lien or any document or instrument governing any Permitted Lien,
provided that any such restriction contained therein relates only to the asset
or assets subject to such Permitted Lien or (v) customary restrictions and
conditions contained in any agreement relating to the sale of any Property
permitted under Section 8.4 pending the consummation of such sale.
SUBPART 2.34 Amendment to Section 9.1(c). Subclause (ii) of Section 9.1(c)
of the Existing Credit Agreement is hereby amended and restated in its entirety
to read as follows:
(ii) default in the due performance or observance of any term,
covenant or agreement contained in Sections 7.1(a), (b), (c), (d), (o) or
(p) and such default shall continue unremedied for a period of at least 5
days after the earlier of an Executive Officer of a Credit Party becoming
aware of such default or written notice thereof by the Administrative
Agent; or
15
SUBPART 2.35 Amendment to Section 9.1(j). Subclause (j) of Section 9.1 of
the Existing Credit Agreement is hereby amended and restated in its entirety to
read as follows:
(j) [Reserved]; or
SUBPART 2.36 Amendment to Section 11.3(b). The proviso in Section 11.3(b)
of the Existing Credit Agreement is hereby amended and restated in its entirety
to read as follows:
provided that (i) except in the case of an assignment of the entire
remaining amount of the assigning Bank's commitment and the Loans at the
time owing to it or in the case of an assignment to a Bank or an Affiliate
of a Bank or an Approved Fund with respect to a Bank, any partial
assignment shall not be less than $2,000,000 (or, if less, the remaining
amount of the Commitment being assigned by such Bank) and an integral
multiple of $100,000 in excess thereof, unless each of the Administrative
Agent and, so long as no Event of Default has occurred and is continuing,
the Borrower otherwise consents (each such consent not to be unreasonably
withheld or delayed) and (ii) the parties to each assignment shall execute
and deliver to the Administrative Agent an Assignment and Acceptance in the
form of Exhibit 11.3(b) (an "Assignment and Acceptance"), together with a
processing and recordation fee of $3,500.
SUBPART 2.37 Amendment to Section 11.6(b). Section 11.6(b) of the Existing
Credit Agreement in hereby amended and restated in its entirety to read as
follows:
(b) Neither this Agreement nor any other Credit Document nor any provision
hereof or thereof may be amended, modified, waived, discharged or terminated
except pursuant to an agreement or agreements in writing entered into by each of
the Credit Parties party thereto and the Required Banks; provided, however,
that:
(i) no such agreement shall (A) decrease the principal amount of, or extend
the maturity of or the scheduled dates for the payment of principal of or
interest on, any Loan or LOC Obligations, or waive or excuse any such payment or
any part thereof or reduce the rate of interest on any Loan, without the written
consent of each holder affected thereby, (B) increase or extend the Commitment
or decrease the Unused Fee of any Bank without the written consent of each Bank
affected thereby, (C) amend or modify the definition of "Required Banks" or the
provisions of this Section 11.6, Section 3.13 or Section 11.2 without the
written consent of each Banks, (D) release the Borrower or substantially all of
the other Credit Parties from its or their obligations under the Credit
Documents without the written consent of each Bank, (E) except as a result of,
upon the occurrence of, or in connection with an Asset Disposition permitted by
Section 8.4, release all or substantially all of the Collateral without the
written consent of each Bank, (F) amend, modify or otherwise affect the rights
or duties of the Administrative Agent hereunder, without the written consent of
the Administrative Agent, or (G) amend, modify or otherwise affect the rights or
duties of the Issuing Lender hereunder, without the written consent of the
Issuing Lender,
16
(ii) without the consent of the Required Revolving Banks and the
Required Banks, no Default or Event of Default may be waived for purposes of
Section 5.2(c) in respect of any proposed Revolving Loan borrowing or Letter of
Credit issuance or extension,
(iii) without the consent of the Required Revolving Banks and the
Required Banks, no amendment, change, waiver, discharge or termination of
Section 2.1, 2.2, 3.3(a), 3.3(b)(i), 3.4(a), 3.5(a), 3.5(b)(i), 3.5(b)(ii), 5.2,
7.11, 7.12, 7.13, Section 8, Section 9, Section 11.6(b)(ii) or this Section
11.6(b)(iii) shall be effective,
(iv) without the consent of the Required Term Loan Banks and the
Required Banks, no amendment, change, waiver, discharge or termination of
Section 2.3, 3.3(a), 3.3(b)(ii), (iii), (iv), (v), (vi), or (vii) or this
Section 11.6(b)(iv) shall be effective and
(v) without the consent of the Required New Term Loan Banks and the
Required Banks, no amendment, change, waiver, discharge or termination of
Section 2.4, 3.3(a), 3.3(b)(ii), (iii), (iv), (v), (vi), or (vii) or this
Section 11.6(b)(iv) shall be effective.
Each Bank and holder of any Note shall be bound by any modification or
amendment authorized by this Section regardless of whether its Notes shall be
marked to make reference thereto, and any consent by any Bank or holder of a
Note pursuant to this Section shall bind any person subsequently acquiring a
Note from it, whether or not such Note shall be so marked.
SUBPART 2.38 Amendment to Section 11.18. Section 11.18 of the Existing
Credit Agreement is hereby amended and restated in its entirety to read as
follows:
11.18 [Reserved].
SUBPART 2.39 Schedule 1.1(c). A new Schedule 1.1(c) is hereby added to
the Existing Credit Agreement and shall read as provided on Schedule 1.1(c)
attached hereto.
SUBPART 2.40 Schedule 7.18. Schedule 7.18 of the Existing Credit
Agreement is hereby amended and restated in its entirety to read as provided on
Schedule 7.18 attached hereto.
SUBPART 2.41 Schedule 8.1. Schedule 8.1 of the Existing Credit
Agreement is hereby amended and restated in its entirety to read as provided on
Schedule 8.1 attached hereto.
PART III
CONDITIONS TO EFFECTIVENESS
This Amendment shall be and become effective as of the date (the
Amendment No. 4 Effective Date") when all of the conditions set forth in this
Part III shall have been satisfied.
SUBPART 3.1 Execution of Counterparts of Amendment. The Administrative
Agent shall have received counterparts of this Amendment, which collectively
shall have been duly executed on behalf of each of the Borrower, the Subsidiary
Guarantors, the Banks and the Administrative Agent.
17
SUBPART 3.2 Resolutions. The Administrative Agent shall have received
copies of resolutions (each in form and substance satisfactory to the
Administrative Agent and its counsel) of the Board of Directors of each Credit
Party approving and adopting this Amendment and authorizing execution and
delivery thereof, certified by a secretary or assistant secretary of such Credit
Party to be true and correct and in force and effect as of the Amendment No. 4
Effective Date.
SUBPART 3.3 Legal Opinion. The Administrative Agent shall have received
legal opinions from counsel to the Credit Parties in form and substance
satisfactory to the Administrative Agent and its counsel.
SUBPART 3.4 Fees and Expenses. The Borrower shall have paid (a) to the
Administrative Agent, for the account of each Bank, and amendment fee equal to
0.50% of such Bank's Commitment and (b) all costs and expenses heretofore
incurred by the Administrative Agent and the Banks, including without
limitation, the fees of Ernst and Young Corporate Finance LLC and Moore & Van
Allen, PLLC.
PART IV
MISCELLANEOUS
SUBPART 4.1 Construction. This Amendment is a Credit Document executed
pursuant to the Existing Credit Agreement and shall (unless otherwise expressly
indicated therein) be construed, administered and applied in accordance with the
terms and provisions of the Amended Credit Agreement. Any Credit Party's failure
to comply with any of the terms or provisions set forth herein shall constitute
an Event of Default under the Credit Documents.
SUBPART 4.2 Representations and Warranties. Each Credit Party hereby
represents and warrants that (i) each Credit Party that is party to this
Amendment: (a) has the requisite corporate power and authority to execute,
deliver and perform this Amendment, as applicable and (b) is duly authorized to,
and has been authorized by all necessary corporate action, to execute, deliver
and perform this Amendment, (ii) the representations and warranties contained in
Section 6 of the Amended Credit Agreement are true and correct in all material
respects on and as of the date hereof upon giving effect to this Amendment as
though made on and as of such date (except for those which expressly relate to
an earlier date) and (iii) no Default or Event of Default exists under the
Existing Credit Agreement on and as of the date hereof upon giving effect to
this Amendment.
SUBPART 4.3 Reaffirmation of Existing Debt. The Credit Parties
acknowledge and confirm that (a) the Borrower's obligations to repay the
outstanding principal amount of the Loans is unconditional and not subject to
any offsets, defenses or counterclaims, (b) the Collateral Agent, on behalf of
the Banks, has a valid and enforceable first priority perfected security
interest in the Collateral, (c) the Administrative Agent, the Collateral Agent
and the Banks have performed fully all of their respective obligations under the
Amended Credit Agreement and the other Credit Documents, (d) by entering into
this Amendment, the Administrative Agent, the Collateral Agent and the Banks do
now waive or release any term or condition of the Amended Credit Agreement or
any of the other Credit Documents or any
18
of their rights or remedies under such Credit Documents or applicable law or any
of the obligations of any Credit Party thereunder and (e) that no Credit Party
has any claims, counterclaims, offsets, or defenses to the Credit Documents and
the performance of its obligations thereunder or if any Credit Party has any
such claims, counterclaims, offsets or defenses to the Credit Documents or any
transaction related to the Credit Documents, the same are hereby waived,
relinquished and released in consideration of the Banks' execution and delivery
of this amendment.
SUBPART 4.4 Acknowledgement. The Guarantors acknowledge and consent to
all of the terms and conditions of this Amendment and agree that this Amendment
does not operate to reduce or discharge the Guarantors' obligations under the
Amended Credit Agreement or the other Credit Documents.
SUBPART 4.5 Counterparts. This Amendment may be executed by the
parties hereto in several counterparts, each of which shall be deemed to be an
original and of which shall constitute together but one and the same agreement.
SUBPART 4.6 Binding Effect. This Amendment, the Amended Credit
Agreement and the other Credit Documents embody the entire agreement between the
parties and supersede all prior agreements and understandings, if any, relating
to the subject matter hereof. These Credit Documents represent the final
agreement between the parties and may not be contradicted by evidence of prior,
contemporaneous or subsequent oral agreements of the parties. Except as
expressly modified and amended in this Amendment, all the terms, provisions and
conditions of the Credit Documents shall remain unchanged and shall continue in
full force and effect.
SUBPART 4.7 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SUBPART 4.8 Severability. If any provision of this Amendment is
determined to be illegal, invalid, or unenforceable, such provision shall be
fully severable and the remaining provisions shall remain in full force and
effect and shall be construed without giving effect to the illegal, invalid or
unenforceable provisions.
SUBPART 4.9 Release. The Credit Parties hereby release the
Administrative Agent, the Collateral Agent, the Banks and each of their
respective officers, employees, representatives, agents, trustees, counsel and
directors (collectively, the "Released Persons") from any and all actions,
causes of action, claims, demands, damages and liabilities of whatever kind or
nature, in law or in equity, now known or unknown, suspected or unsuspected to
the extent that any of the foregoing arises from any action or failure to act by
any of the Released Persons on or prior to the date hereof.
19
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of
this Amendment to be duly executed and delivered as of the date first
above written.
BORROWER: ETHYL CORPORATION, a Virginia
- ---------
corporation
By: /s/ D.A. Fiorenza
-----------------
Name: David A. Fiorenza
Title: Vice President, Treasurer, and
Principal Financial Officer
SUBSIDIARY
- -----------
GUARANTORS: THE EDWIN COOPER CORPORATION, a
- -----------
Virginia corporation
By: /s/ D.A. Fiorenza
-----------------
Name: David A. Fiorenza
Title: Treasurer
ETHYL ADDITIVES CORPORATION, a
Virginia corporation
By: /s/ Wayne C. Drinkwater
-------------------
Name: Wayne C. Drinkwater
Title: Treasurer
ETHYL ASIA PACIFIC COMPANY,
a Virginia corporation
By: /s/ D.A. Fiorenza
-----------------
Name: David A. Fiorenza
Title: Vice President and Treasurer
ETHYL EXPORT CORPORATION,
a Virginia corporation
By: /s/ D.A. Fiorenza
-----------------
Name: David A. Fiorenza
Title: President and Treasurer
20
ETHYL INTERAMERICA CORPORATION,
a Delaware corporation
By: /s/ D.A. Fiorenza
-----------------
Name: David A. Fiorenza
Title: Vice President and Treasurer
ETHYL PETROLEUM ADDITIVES, INC.,
a Delaware corporation
By: /s/ D.A. Fiorenza
-----------------
Name: David A. Fiorenza
Title: Treasurer
INTERAMERICA TERMINALS CORPORATION,
a Virginia corporation
By: /s/ D.A. Fiorenza
-----------------
Name: David A. Fiorenza
Title: Treasurer
ETHYL VENTURES, INC.,
a Virginia corporation
By: /s/ D.A. Fiorenza
-----------------
Name: David A. Fiorenza
Title: President and Treasurer
21
ADMINISTRATIVE: BANK OF AMERICA, N. A.,
- ---------------
AGENT: in its capacity as Administrative Agent
- ------ and as Collateral Agent
By: /s/ Charles D. Graber
---------------------
Name: Charles D. Graber
Title: Vice President
BANKS: BANK OF AMERICA, N. A., in its
- ------ capacity as a Bank and Issuing Lender
By: /s/ H.G. Wheelock
-----------------
Name: H.G. Wheelock
Title: Managing Director
THE BANK OF NEW YORK
By: /s/ Christine T. Rio
--------------------
Name: Christine T. Rio
Title: Vice President
SUNTRUST BANK
By: /s/ George A. Ways
------------------
Name: George A. Ways
Title: Managing Director
CREDIT LYONNAIS
NEW YORK BRANCH
By: /s/ Sandra E. Horowitz
----------------------
Name: Sandra E. Horowitz
Title: Senior Vice President
WACHOVIA BANK, N.A.
By: /s/ Jill E. Snyder
------------------
Name: Jill E. Snyder
Title: Director
STANDARD CHARTERED BANK
By:
----------------
Name:
Title:
22
THE INDUSTRIAL BANK OF JAPAN,
LIMITED
By: /s/ Kolchi Hasegawa
-------------------
Name: Kolchi Hasegawa
Title: Senior Vice President
and Deputy General Manager
THE SUMITOMO MITSUI BANKING
CORPORATION
By: /s/ Robert H. Riley III
----------------------------
Name: Robert H. Riley III
Title: Senior Vice President
BANK ONE, NA
By: /s/ Hal E. Fudge
----------------
Name: Hal E. Fudge
Title: First Vice President
BANKERS TRUST COMPANY
By: /s/ Scottye D. Lindsey
----------------------
Name: Scottye D. Lindsey
Title: Vice President
KBC Bank N.V.
By: /s/ Patrick A. Janssens
-----------------------
Name: Patrick A. Janssens
Title: Vice President
By: /s/ Jean-Pierre Diels
-----------------------
Name: Jean-Pierre Diels
Title: First Vice President
FLEET NATIONAL BANK
By: /s/ Richard E. Lynch
--------------------
Name: Richard E. Lynch
Title: Vice President
GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/ Robert M. Kadlick
---------------------
Name: Robert M. Kadlick
Title: Duly Authorized Signatory
23
Schedule 1.1(c)
(a) Airframe: One (1) British Aerospace BAe 125 Series 800A airframe
bearing FAA Registration No. N290EC and
Manufacturer's Serial No. NA0444
(b) Engines: Two (2) Honeywell International Inc./Allied Signal, Inc./Garrett
AiResearch engines Model No. TFE7315R-1H and
bearing Manufacturer's Serial Nos. 91444 and 91450,
respectively
(c) All appliances, interior and exterior furnishings, equipment,
instruments, parts and accessories installed in or appurtenant to the
above-described Airframe or Engines, including all records, logs and
other materials related thereto.
24
Schedule 7.18
Real Estate Appraisals:
Ethyl Corporation
Headquarters-Main and East Buildings
330 South Fourth Street
Richmond, VA 23219
Ethyl Petroleum Additives, Inc./ Ethyl Corporation
Research and Development Center
500 Spring Street
Richmond, VA 23218
Ethyl Corporation
Information Technology Building
201 South Third Street
Richmond, VA 23218
Ethyl Corporation
North Office Building
200 South Third Street
Richmond, VA 23218
Ethyl Corporation
Additional Parking Lots
500 and 600 Blocks of Byrd/Tredegar Streets
Richmond, VA 23218
Ethyl Corporation-Undeveloped Second Street Site
Spring and Second Streets
Richmond, VA 23218
Ethyl Corporation-Undeveloped Oregon Hill Sites
700 Block of Pine Street
700 Block of Laurel Street
812 Riverside Park
Richmond, VA 23218
Ethyl Petroleum Additives, Inc. - Natchez Plant
151 L.E. Barry Road
Natchez, MS 39120
Ethyl Corporation - Houston Plant
1000 N. South Avenue
Pasadena, TX 77503
Ethyl Additives Corporation - Port Arthur Plant
Savannah Avenue, Gate 20
Port Arthur, TX 77640
Ethyl Petroleum Additives, Inc.- Sauget Plant
501 Monsanto Avenue
Sauget, IL 62201
25
All Machinery and Equipment located at:
Ethyl Petroleum Additives, Inc.
Research and Development Center
500 Spring Street
Richmond, VA 23218
Ethyl Corporation - Houston Plant
1000 N. South Avenue
Pasadena, TX 77503
Ethyl Corporation - Natchez Plant
151 L.E. Barry Road
Natchez, MS 39121
Ethyl Petroleum Additives, Inc. - Sauget Plant
501 Monsanto Avenue
Sauget, IL 62201
SUBPART B
1. Airplane Appraisal to be provided on or before March 31, 2002
2. Artwork Appraisal to be provided on or before June 30, 2002
3. Tredegar Gun Foundary Appraisal to be provided on or before June 30, 2002
500 Tredegar Street
Richmond, VA 23219
4. Riverfront Historic Buildings Appraisal to be provided on or before June 30, 2002
490 Tredegar Street
Richmond, VA 23219
26
SCHEDULE 8.1
Indebtedness of Ethyl Corporation and Subsidiaries
1. Lubrizol Take-or-Pay phenate supply agreement:
Agreement of Sale covering Lubrizol 6499 between The Lubrizol Corporation,
having a principal place of business at 29400 Lakeland Blvd., Wickliffe, OH
44092-2298 and Ethyl Petroleum Additives, Inc., having a principal place of
business at 330 South Fourth Street, Richmond, VA 23219 entered into as of July
1, 1997 and having a termination date of December 31, 2005 and evergreen
thereafter until terminated by either party upon no less that 24 months notice.
Beginning January 1, 2002, the maximum annual take obligation is 8,075 metric
tons. Beginning January 1, 2002, the maximum annual payment of failure to take
would be $2,422,500.
2. Indebtedness to third parties secure the performance of tenders, statutory
obligations, surety bonds, appeal bonds, bids, leases (other thatn Capital
Leases), performance bonds, purchase, construction or sales contracts and other
similar obligations, in each case incurred in the ordinary course of business
and not incurred or made in connection with the borrowing of money, the
obtaining of advances of credit or the payment of the deferred purchase price of
property.
3. Indebtedness in respect of procurement credit card arrangements with one of
the Banks collateralized by cash in an amount not to exceed $325,000 in the
aggregate for all such programs.
4. The following Standby Letters of Credit of Ethyl Asia Pacific Company issued
by Bank of America, N.A.:
---------------------- ------------------------------------- -------------- ----------------- --------------
Ref No. Beneficiary Amount (USD) Date of Maturity
Issue Date
---------------------- ------------------------------------- -------------- ----------------- --------------
GT094047/00 Heilongjiang Daqing 30,266.25 2/8/00 1/31/03
Petroleum Technology I & E
---------------------- ------------------------------------- -------------- ----------------- --------------
GT094226/00 Heilongjiang Daqing 46,260.24 5/5/00 5/3/03
Petroleum Technology I & E
---------------------- ------------------------------------- -------------- ----------------- --------------
27