Term Loan Agreement - Aristech Chemical Corp. and Mitsubishi Corp.
U.S. $203,000,000
TERM LOAN AGREEMENT
DATED AS OF AUGUST 1, 1994
BETWEEN
ARISTECH CHEMICAL CORPORATION
AS THE BORROWER
AND
MITSUBISHI CORPORATION
AS THE LENDER
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TERM LOAN AGREEMENT
THIS TERM LOAN AGREEMENT ("Agreement"), dated as of August 1,
1994 by and between ARISTECH CHEMICAL CORPORATION, a Delaware corporation
(hereinafter referred to as the "Borrower"), and MITSUBISHI CORPORATION, a
corporation organized under the laws of Japan (hereinafter referred to as
"Lender").
RECITALS
WHEREAS, Borrower is an indirectly owned subsidiary of
Lender; and
WHEREAS, Borrower desires to borrow, and Lender is willing to
lend, the sum of Two Hundred Three Million Dollars (U.S. $203,000,000) 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:
"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.
"BUSINESS DAY" shall mean any day other than a
Saturday, Sunday, public holiday under the laws of the state of New York or of
Japan or other day on which commercial banks in New York, New York or Tokyo,
Japan, 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.
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"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. 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 Term Loan outstanding during such Interest Period.
"LOAN DOCUMENTS" shall mean this Agreement 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 11:00 a.m., Tokyo, Japan
time, on July 31, 2002.
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"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 Lender, as
Guarantors, The Mitsubishi Bank, Limited, acting through its New York Branch
and The Mitsubishi Trust and Banking Corporation, 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.
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 Two Hundred Three Million Dollars (U.S.
$203,000,000) (the "Term Loan"). No portion of the Term Loan may be reborrowed
by Borrower.
2.02 PAYMENTS ON ACCOUNT OF PRINCIPAL. 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 thirty (30) days' prior written notice to Lender, to pay the Term Loan in
whole or part on any Interest Payment Date, without premium or penalty;
provided, however, that the minimum prepayment amount with respect to the Term
Loan shall be $500,000.
2.03 PAYMENTS ON ACCOUNT OF INTEREST.
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(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 1.375
percent in excess of the LIBO Rate in effect for each such Interest Period.
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.
(b) Interest Period Election. Borrower shall have
the option of selecting Interest Periods of one, two, three or six months
duration and may elect to have more than one Interest Period outstanding at any
one time; provided, however, that (i) no Interest Period shall extend beyond
the Maturity Date and (ii) the initial Interest Period for the Term Loan shall
be one month. Thereafter, Borrower shall, not less than seven Business Days
prior to the next Interest Payment Date, specify in writing to Lender 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. If Borrower fails at any time to make an Interest Period
election, the next succeeding Interest Period shall be of one month's duration
and all succeeding Interest Periods thereafter shall be for one month's
duration until such time, if any, as Borrower makes an Interest Period
election.
(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 percent above the rate
of interest otherwise applicable pursuant to Section 2.03(a) of this Agreement
until paid, payable on demand.
(d) Maximum Rate. In no contingency or event shall
interest charged hereunder, 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 exceeded the Maximum Rate during any
period or periods, the rate of interest hereunder for such period or periods
shall be deemed to have been the Maximum Rate, and the rate of interest
hereunder 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 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 preceding subsections of this Section 2.03. 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
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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.
2.04 USE OF PROCEEDS. The Borrower hereby represents and
warrants to the Lender that all proceeds of the Term Loan 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.
2.05 BORROWER'S COVENANTS. Until and unless the Term Loan and
all interest accrued thereon shall have been fully paid or repaid, the Borrower
hereby covenants and agrees that any distribution, division or application,
partial or complete, voluntary or involuntary, by operation of law or
otherwise, of all or any part of the property, assets or business of the
Borrower or the proceeds thereof, except for the repayments or prepayments
contemplated by Article IV hereof, shall not, without a prior written consent
of the Lender, be made to any creditor or creditors of the Borrower (other than
the Lender) other than in the ordinary course of business.
2.06 PAYMENTS. All payments or prepayments to be made in
respect of principal, interest or fees or amounts due from Borrower hereunder
shall be payable on the date when due in U.S. Dollars in immediately available
funds before 11:00 A.M. Tokyo, Japan time at the Head Office of The Mitsubishi
Bank, Tokyo, Japan for the account of Lender.
ARTICLE III
DEFAULT
3.01 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 or otherwise, and such failure shall continue for a
period of 10 days;
(b) the Borrower fails to comply with any other
terms, covenants or conditions contained herein or in any Loan
Documents, and such failure (exclusive of monetary obligations) is not
remedied within sixty (60) days thereafter;
(c) 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
(d) 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.
3.02 REMEDIES. If an Event of Default shall have occurred and
be continuing, then the Lender may forthwith, or at any time thereafter, by
notice to the Borrower, declare the unpaid principal amount of the Term Loan
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. Lender shall also have all other rights and remedies available to
Lender at law or in equity.
ARTICLE IV
NEW LOAN(S)
The Lender has been informed and is aware that the Borrower
intends to borrow from one or more banks or financial institutions, on or
before March 31, 1995, the aggregate amount of at least Three Hundred
Seventy-Six Million Dollars (U.S. $376,000,000)(the "New Loan(s)"), all of
which will be used for the repayment or prepayment of certain portions of (i)
the then outstanding loan or loans extended to the Borrower by the Lender or
its subsidiary(s) or affiliated company(s) and/or (ii) the then outstanding
loan or loans extended by banks or financial institutions to the Borrower and
guaranteed by the Lender or its subsidiary(s) or affiliated company(s). In
order to assist the Borrower in borrowing the New Loan(s), the Lender is
prepared to enter into discussions with the Borrower and the lenders of the
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New Loan(s) with regard to any amendment of this Agreement and/or new
conditions of this Agreement or the Term Loan.
ARTICLE V
MISCELLANEOUS
5.01 GOVERNING LAW. This Agreement shall be governed by the
laws of the State of New York, excluding its rules relating to the conflict of
laws.
5.02 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 Corporation
3-1, Marunouchi 2-Chome, Chiyoda-Ku
Tokyo 100-86, Japan
Attention: Mr. Noriyoshi Fukuyama
Facsimile: 011 813 3210 5513
5.03 COUNTERPARTS. This Agreement may be executed in
multiple counterparts, each of which constitutes an original.
5.04 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 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 the Note shall be effective unless made in writing by the
Borrower and the Lender; provided, however, that no such amendment shall impair
the rights of any holder of Senior Indebtedness hereunder without the consent
of such holder.
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5.05 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 Note originally issued to the Lender, and the holder
of such Note shall be bound by and have the benefits of this Agreement the same
as if such holder had been a signatory hereto.
5.06 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.
5.07 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.
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
------------------------------- ---------------------------
Title: Secretary Title: Treasurer
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ATTEST: MITSUBISHI CORPORATION
By: /s/ Y. HARA By: /s/ N. FUKUYAMA
------------------------------- ---------------------------
Title: Deputy General Manager Title: General Manager
Aristech Department Aristech Department
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First Amendment
This First Amendment, dated as of June 3, 1996, by and between
Aristech Chemical Corporation, a Delaware corporation (the "Borrower") and
Mitsubishi Corporation, a corporation organized under the laws of Japan (the
"Lender"),
WITNESSETH THAT:
WHEREAS, the Borrower and the Lender entered into a Term Loan
Agreement dated as of August 1, 1994 (the "Original Agreement"); and
WHEREAS, the Borrower and the Lender wish to amend the Original
Agreement to revise the interest rate on borrowings covered by the Original
Agreement;
NOW, THEREFORE, the parties hereto, intending to be legally
bound hereby, agree as follows:
1. Definitions
Except as expressly changed herein, terms in this First Amendment
which are defined in the Original Agreement are herein used as therein defined.
2. Change in Payment of Interest
Section 2.03(a) of the Original Agreement is hereby amended to read in
full as follows:
(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 0.55 percent in excess of the LIBO Rate in effect
for each such Interest Period.
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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.
3. Effectiveness
This First Amendment shall be effective as of June 3, 1996.
4. Miscellaneous
(a) Except as specifically amended herein, 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 June 3, 1996.
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ARISTECH CHEMICAL CORPORATION
By: /s/ W.D. WALSTON
Title: TREASURER
MITSUBISHI CORPORATION
By: /s/ HAJIME KOGA
Title: General Manager
Aristech Dept.
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Second Amendment
This Second Amendment, dated as of September 30, 1996, by and between
Aristech Chemical Corporation, a Delaware corporation (the "Borrower") and
Mitsubishi Corporation, a corporation organized under the laws of Japan (the
"Lender"),
WITNESSETH THAT:
WHEREAS, the Borrower and the Lender entered into a Term Loan
Agreement dated as of August 1, 1994. as amended by the First Amendment dated
as of June 3, 1996 (as amended, the "Original Agreement"); and
WHEREAS, the Borrower and the Lender wish to amend the Original
Agreement to revise the interest rate on borrowings covered by the Original
Agreement;
NOW, THEREFORE, the parties hereto, intending to be legally
bound hereby, agree as follows:
1. Definitions
Except as expressly changed herein, terms used in this Second
Amendment which are defined in the Original Agreement are herein used as
therein defined.
2. Change in Payment of Interest
Section 2.03(a) of the Original Agreement is hereby amended to read in
full as follows:
(a) Payment of Interest
Effective November 1, 1996, the Borrower shall pay interest
in respect of the entire outstanding unpaid
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principal balance of the Term Loan at a rate per annum during
each Interest Period equal to 0.4875 percent in excess of the
LIBO Rate in effect for each such Interest Period. 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.
3. Effectiveness
This Second Amendment shall be effective as of September 30, 1996.
4. Miscellaneous
(a) Except as specifically amended herein, 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Second
Amendment as of September 30, 1996.
ARISTECH CHEMICAL CORPORATION
By: /s/ W.D. WALSTON
--------------------------
Title: TREASURER
MITSUBISHI CORPORATION
By: /s/ HAJIME KOGA
--------------------------
Title: General Manager
Aristech Dept.