EXHIBIT 10.1
THIS INSTRUMENT IS SECURED BY A DEED OF TRUST, ASSIGNMENT OF
PERMITS, RENTS AND BENEFITS, SECURITY AGREEMENT AND FIXTURE FILING,
DATED AS OF JUNE 18, 1991
EIGHTH AMENDMENT TO CREDIT AGREEMENT
EIGHTH AMENDMENT dated as of September 17, 1996 TO CREDIT AGREEMENT
dated as of March 20, 1991 among RHEOX, INC., a Delaware corporation (the
"Company"); RHEOX INTERNATIONAL, INC., a Delaware corporation (the "Subsidiary
Guarantor"); each of the lenders that is a signatory hereto (individually, a
"Bank" and, collectively, the "Banks"); THE CHASE MANHATTAN BANK (successor by
merger to The Chase Manhattan Bank (National Association)), a New York state
banking corporation, and THE NIPPON CREDIT BANK, LTD., a Japanese banking
corporation acting through its New York branch, as co-agents for the Banks (each
in such capacity, a "Co-Agent" and, collectively, the "Co-Agents"); and THE
CHASE MANHATTAN BANK, as administrative agent for the Banks (in such capacity,
together with its successors in such capacity, the "Administrative Agent").
WHEREAS, the parties hereto are parties to a Credit Agreement dated
as of March 20, 1991 among the Company, the Subsidiary Guarantor, the Banks, the
Co-Agents and the Administrative Agent (as at any time amended or otherwise
modified, the "Credit Agreement"; terms defined therein having their respective
defined meanings when used herein unless otherwise defined herein);
WHEREAS, the Company has requested that the Credit Agreement be
amended in certain respects, and the Banks are willing to consent to such
amendments upon the terms and conditions contained herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
Section 1. Amendments. The Credit Documents are hereby amended
(effective as provided in Section 3 hereof) as follows:
A. Each reference in the Credit Agreement and the other Credit
Documents to the Credit Agreement shall be deemed to be a reference to the
Credit Agreement as amended hereby. Except as expressly provided in this
Section 1, the Credit Agreement shall remain unchanged and in full force
and effect.
B. Section 1.01 of the Credit Agreement is hereby amended by adding
the following new definitions and inserting the same in the appropriate
alphabetical locations:
"'Bankruptcy Code' shall mean the Federal Bankruptcy Code of
1978, as amended from time to time."
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"'Subordinated Note' shall have the meaning assigned to such
term in Section 9.07(e) hereof."
"'Subordination Agreement' shall mean a Subordination
Agreement substantially in the form of Exhibit A to the Eighth
Amendment dated as of September 17, 1996 to this Agreement."
C. The definition of "Credit Documents" in Section 1.01 of the
Credit Agreement is hereby amended by inserting ", the Subordination
Agreement" after "the NL Guaranty".
D. Clause (a) of the definition of "Interest/Lease Expense" in
Section 1.01 of the Credit Agreement is hereby amended to read as follows:
"(a) all interest in respect of Indebtedness of the Company and its
Consolidated Subsidiaries (including imputed interest expense in
respect of Capital Lease Obligations, if any, but excluding interest
expense in respect of the Subordinated Note to the extent accrued
but not paid) paid, accrued or capitalized during such period;"
E. Clause (a) of the definition of "Leverage Ratio" in Section 1.01
of the Credit Agreement is hereby amended to read as follows:
"(a) the aggregate outstanding principal amount of Indebtedness
(other than Indebtedness evidenced by the Subordinated Note) of the
Company and its Consolidated Subsidiaries on such date by".
F. The definition of "Revolving Credit Termination Date" in Section
1.01 of the Credit Agreement is hereby amended to read as follows:
"'Revolving Credit Termination Date' shall mean December 31,
1997."
G. The last sentence of the definition of "Tangible Net Worth" in
Section 1.01 of the Credit Agreement is hereby amended to read as follows:
"Notwithstanding anything in this definition to the contrary,
neither (i) cumulative foreign currency translation gains (or
losses) nor (ii) the dividend evidenced by the Subordinated Note
shall be deemed to increase or decrease Tangible Net Worth."
H. Section 9.05 of the Credit Agreement is hereby amended by (i)
deleting "and" at the end of clause (h) thereof, (ii) replacing the period
at the end of clause (i) thereof with "; and" and (iii) inserting a new
clause (j) therein reading as follows:
"(j) the Company may enter into and issue the Subordinated
Note and make payments and otherwise perform its obligations in
respect thereof in accordance with the Subordination Agreement."
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I. Section 9.07 of the Credit Agreement is hereby amended by (i)
relettering clauses (e), (f) and (g) thereof to be clauses (f), (g) and
(h) respectively and (ii) inserting a new clause (e) therein reading as
follows:
"(e) Indebtedness of the Company to NL evidenced by a
subordinated note (the "Subordinated Note") substantially in the
form of Exhibit B to the Eighth Amendment dated as of September 17,
1996 to this Agreement and in an original principal amount not
exceeding $100,000,000, provided that NL, the Company and the
Administrative Agent shall have executed and delivered the
Subordination Agreement;"
J. The proviso in Section 9.09 of the Credit Agreement is hereby
amended to read as follows:
"provided that (a) the Company may declare and pay the NL Dividend
in cash on the date the Term Loans are made hereunder and (b) the
Company may declare the dividend to be evidenced by the Subordinated
Note and may pay such dividend by issuing the Subordinated Note."
K. Section 9.18 of the Credit Agreement is hereby amended by (i)
replacing " and" at the end of clause (iii) thereof with a comma, (ii)
replacing the period at the end of clause (iv) thereof with " and" and
(iii) inserting a new clause (v) therein reading as follows:
"(v) the Company may enter into and issue the Subordinated Note and
make payments and otherwise perform its obligations in respect thereof in
accordance with the Subordination Agreement."
L. Clause (b) of Section 9.23 of the Credit Agreement is hereby
amended by inserting "the Subordinated Note (other than a modification,
supplement or waiver deferring part or all of the Company's payment
obligations thereunder) or" before "the Tax Sharing Agreement," therein.
M. The Credit Agreement is hereby amended by adding a new Section
9.29 thereto reading as follows:
"9.29 Subordinated Note. The Company will not, and will not
permit any of its Subsidiaries to, purchase, redeem, retire or
otherwise acquire for value, or set apart any money for a sinking,
defeasance or other analogous fund for the purchase, redemption,
retirement or other acquisition of, or make any voluntary payment or
prepayment of the principal of or interest on, or any other amount
owing in respect of, the Subordinated Note, except, subject to the
Subordination Agreement, for regularly scheduled payments of
interest thereon required pursuant thereto."
Section 2. Representations and Warranties. Each of the Company and
the Subsidiary Guarantor represents and warrants that:
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A. The execution and delivery of this Amendment by it has been duly
authorized by all necessary corporate action on its part.
B. This Amendment has been duly executed and delivered by it, and
each of this Amendment and the Credit Agreement as modified hereby
constitute its legal, valid and binding obligation enforceable in
accordance with its respective terms subject, however, to the application
by a court of general principles of equity and to the effect of any
applicable bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors' rights generally.
Section 3. Effectiveness. The amendments set forth in Section 1
hereof shall become effective upon the receipt by the Administrative Agent on or
before October 15, 1996 of (a) counterparts hereof duly executed and delivered
by the Company, the Banks and the Administrative Agent, (b) a Subordination
Agreement substantially in the form of Exhibit A hereto duly executed and
delivered by NL, the Company and the Administrative Agent and (c) evidence
reasonably satisfactory to it as to the truth of the representation contained in
Section 2.A hereof. If the Revolving Credit Commitments terminate on September
23, 1996 by reason of failure of the Administrative Agent to have received the
documents and evidence referred to in the preceding sentence on or before such
date, then, upon the receipt by the Administrative Agent of such documents and
evidence on or before October 15, 1996, the amendments set forth in Section 1
hereof shall become effective retroactive to September 23, 1996 and the
Revolving Credit Commitments shall be reinstated as of September 23, 1996.
Section 4. Counterparts. This Amendment may be executed in any
number of counterparts, each of which may be deemed an original but all of which
together shall constitute one and the same instrument.
Section 5. Governing Law. This Amendment shall be governed and
construed in accordance with the laws of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers duly authorized as of the date first
above written.
RHEOX, INC.
By
Name:
Title:
THE CHASE MANHATTAN BANK,
as Co-Agent and
Administrative Agent
By_____________________________
Name:
Title:
THE NIPPON CREDIT BANK, LTD.,
as Co-Agent
By_____________________________
Name:
Title:
THE CHASE MANHATTAN BANK
By_____________________________
Name:
Title:
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THE NIPPON CREDIT BANK, LTD.
By_____________________________
Name:
Title:
▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL PRIME
RATE INCOME TRUST
By_____________________________
Name:
Title:
RESTRUCTURED OBLIGATIONS BACKED
BY SENIOR ASSETS B.V.
BY CHANCELLOR SENIOR SECURED
MANAGEMENT, INC., its Portfolio Advisor:
By_____________________________
Name:
Title:
STICHTING RESTRUCTURED OBLIGATIONS
BACKED BY SENIOR ASSETS 2 (ROSA2)
BY CHANCELLOR SENIOR SECURED
MANAGEMENT, INC., its Portfolio Advisor:
By_____________________________
Name:
Title:
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GIROCREDIT BANK,
NEW YORK
K BRANCH
By_____________________________
Name:
Title:
BANQUE PARIBAS
By_____________________________
Name:
By_____________________________
Name:
Title:
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