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EXHIBIT 4.20(a)
FIRST AMENDMENT TO
REVOLVING CREDIT AGREEMENT
THIS FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT (this
"Amendment") dated as of the Amendment Effective Date (as defined in Section 4
of this Amendment) is by and among STERLING CHEMICALS, INC., a Delaware
corporation ("Sterling"), STERLING CANADA, INC., a Delaware corporation,
STERLING CHEMICALS ENERGY, INC., a Delaware corporation, STERLING CHEMICALS
INTERNATIONAL, INC., a Delaware corporation, STERLING FIBERS, INC., a Delaware
corporation, STERLING PULP CHEMICALS, INC., a Georgia corporation, and STERLING
PULP CHEMICALS US, INC., a Delaware corporation (each such entity, together
with Sterling, each individually a "Borrower" and collectively the
"Borrowers"), THE CIT GROUP/BUSINESS CREDIT, INC. ("CIT"), individually and as
the Administrative Agent (in such capacity, the "Administrative Agent"), CREDIT
SUISSE FIRST BOSTON, as the documentation agent (in such capacity, the
"Documentation Agent"), DLJ CAPITAL FUNDING, INC., as the syndication agent (in
such capacity, the Syndication Agent" and, together with the Administrative
Agent, individually, a "Agent" and collectively, the "Agents"), and the Lenders
signatory hereto.
PRELIMINARY STATEMENTS
1. Each of the Borrowers entered into that certain Revolving Credit
Agreement dated as of July 23, 1999, among the Borrowers, the
Administrative Agent, the Documentation Agent, the Syndication
Agent and the other financial institutions that are a signatory
thereto (the "Existing Credit Agreement"). Capitalized terms used
but not otherwise defined herein shall have the meanings assigned
to such terms in the Existing Credit Agreement.
2. The Borrowers have requested that certain provisions of the
Existing Credit Agreement be modified and amended.
3. The Borrowers, the Agents, the Documentation Agent and the
Required Lenders have agreed to amend the Existing Credit
Agreement on the terms and conditions contained herein.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein and in the Existing Credit Agreement, and for other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally bound, hereby
agree as follows:
Section 1. Amendment of Article X of the Existing Credit
Agreement. Article X of the Existing Credit Agreement is hereby amended by
adding a new Section 10.17 thereto, to read as follows:
SECTION 10.17. ANEXCO Information. (a) Each of the Agents
and each of the Lenders agrees that (i) it shall hold all
non-public information of
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ANEXCO obtained pursuant to this Agreement (the "ANEXCO
Information"), including account obligor information with respect
to the accounts receivable of ANEXCO, in strict confidence, (ii)
it will not disclose any of the ANEXCO Information to any Person
other than (A) either of the Agents or any Lender, (B) its
employees who need to know the ANEXCO Information in connection
with the transactions contemplated by this Agreement, who are
informed of the confidential nature of the ANEXCO Information and
who agree to abide by and act in accordance with the terms of
this Section to the same extent as if they were parties hereto,
(C) its examiners, outside auditors, counsel and other
professional advisors in connection with this Agreement, (D) any
Person that has become, in accordance with the requirements of
this Agreement, a bona fide transferee, participant or assignee
of the interests of any Lender under this Agreement and (E) any
governmental agency or representative thereof as required or
requested pursuant to legal process, and (iii) it shall use the
ANEXCO Information only in connection with this Agreement and not
for any other purpose; provided, however, this Section shall not
apply (A) if any of the ANEXCO Information (x) was or becomes
generally available to the public other than by disclosure by the
Agents or any Lender or any of their respective employees,
agents, examiners, outside auditors, counsel, other professional
advisors, transferees, participants or assignees or (y) was or
becomes available on a non-confidential basis from a source other
than the Borrowers, ANEXCO or BP, or (B) to the extent reasonably
required in connection with the enforcement of any Loan Document
(collectively "Excluded Information").
(b) Each of the Agents and each of the Lenders agrees that:
(i) it will cause its employees, outside auditors,
counsel and other professional advisors to observe the
terms of this Section and will be responsible for any
breach of this Section;
(ii) any outside auditor, counsel or professional
advisor (other than those outside auditors, counsel or
professional advisors regularly providing such services to
such Lender or to the Administrative Agent) to whom it
proposes to disclose any ANEXCO Information other than the
Excluded Information must be approved by BP or ANEXCO prior
to such disclosure, such approval not to be unreasonably
withheld or delayed;
(iii) prior to disclosing any information to a
transferee, participant or assignee pursuant to this
Section, it will require such transferee, participant or
assignee to agree to be bound by this Section; and
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(iv) unless specifically prohibited by applicable law
or court order, it will (A) notify BP and ANEXCO of any
request by any governmental agency or representative
thereof (other than any such request in connection with a
routine examination of its financial condition by such
governmental agency) for disclosure of any ANEXCO
Information other than Excluded Information at least five
business days prior to disclosure of such ANEXCO
Information other than Excluded Information (or if prior
notification of such length is not reasonably practicable
under the circumstances, as soon as is reasonably
practicable under the circumstances but in any event prior
to such disclosure) and (B) permit BP and ANEXCO to file or
otherwise make an objection with the relevant governmental
agency or representative thereof to the disclosure of such
ANEXCO Information.
(c) Each of the Agents, the Documentation Agent and each of
the Lenders acknowledges that the ANEXCO Information other than
the Excluded Information may be of a competitively sensitive
nature and agrees to hold all of the ANEXCO Information other
than the Excluded Information in accordance with its customary
procedures for handling confidential information of that nature
and in accordance with safe and sound banking practices.
(d) Notwithstanding anything to the contrary contained in
this Agreement, each of BP and ANEXCO (i) shall be a third party
beneficiary of this Section and shall be entitled to rights and
privileges hereof to the extent that (A) any ANEXCO Information
other than the Excluded Information was obtained by Sterling from
BP or ANEXCO and disclosed to either of the Agents or any of the
Lenders or (B) any ANEXCO Information other than the Excluded
Information is otherwise obtained by either of the Agents or any
of the Lenders from BP or ANEXCO, and (ii) shall be entitled to
enforce this Section 10.17 against the Agents and the Lenders to
the same extent as if BP and ANEXCO were parties hereto.
(e) Notwithstanding anything to the contrary contained in
this Agreement, no amendment, modification or restatement of, or
waiver under, this Section 10.17 which would adversely affect BP
or ANEXCO shall be or become effective without the prior written
consent of BP and ANEXCO.
(f) All notices, requests and other communications provided
to BP or ANEXCO under this Agreement shall be in writing and
addressed, delivered or transmitted to the following address or
facsimile number:
BP Chemicals Inc.
Manager, Planning, Control & Development
Nitriles Business Xxxx
Xxxx. 000-0, N-3 1561
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000 Xxxx Xxxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Facsimile Number: (000) 000-0000
or at such other address or facsimile number as may be designated
by BP or ANEXCO in a notice to the Administrative Agent. Any
notice, (i) if mailed and properly addressed with postage prepaid
or if properly addressed and sent by pre-paid courier service,
shall be deemed given when it has been received or (ii) if
transmitted by facsimile, shall be deemed given when transmitted
(and telephonic confirmation of receipt thereof has been
received).
Section 2. Effect of This Amendment. The Existing Credit
Agreement and this Amendment shall be read, taken and construed as one and the
same instrument. Except as expressly modified hereby or by express written
amendments thereof, each of the Loan Documents and each of the other documents
and instruments executed in connection with any of the foregoing are and shall
remain in full force and effect. In the event of a conflict between this
Amendment and any of the foregoing documents, the terms of this Amendment shall
be controlling. Upon the effectiveness of this Amendment, each reference in the
Existing Credit Agreement to "this Agreement" and each reference in each of the
other Loan Documents to "the Credit Agreement" shall mean and be a reference to
the Existing Credit Agreement as amended hereby.
Section 3. Limitations. The amendments set forth herein are
limited precisely as written and shall not (a) be deemed to be a consent to, or
a waiver or modification of, any other term or condition of any of the Loan
Documents or (b) except as expressly set forth herein, prejudice any right or
rights which the Agents or the Lenders may now have or may have in the future
under or in connection with any of the Loan Documents or any of the other
documents or instruments referred to therein.
Section 4. Conditions Precedent and Effectiveness. This Amendment
shall not be effective unless and until (a) counterparts hereof executed on
behalf of each Borrower and the Required Lenders (or notice thereof
satisfactory to the Agents) shall have been received by the Syndication Agent
and, upon receipt of such counterparts or notice by the Syndication Agent,
shall be and become effective as of December 17, 1999 (the "Amendment Effective
Date") and (b) the Agents shall have received for the account of each Lender,
all fees, costs and expenses due and payable pursuant to Sections 3.3 and 10.3
of the Credit Agreement or payable hereunder, if then invoiced.
Section 5. Representations and Warranties. Each of the Borrowers
hereby represents and warrants to the Agents and the Lenders that (a) except as
affected by the transactions contemplated in the Existing Credit Agreement and
this Amendment, each of the representations and warranties made by the
Borrowers in or pursuant to each of the Loan Documents is true and correct in
all material respects as of the Amendment Effective Date, as if made on and as
of such date, except for any representations and warranties made as of a
specified date, which are true and correct in all material respects as of such
specified date, and (b) no Default or Event of Default has occurred and is
continuing as of the Amendment Effective Date.
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Section 6. Adoption, Ratification and Confirmation of Existing
Credit Agreement. Each of the Borrowers, each of the Agents, the Documentation
Agent and each of the Lenders signatories hereto hereby adopts, ratifies and
confirms the Existing Credit Agreement, as amended hereby, and acknowledges and
agrees that the Existing Credit Agreement, as amended hereby, is and remains in
full force and effect.
Section 7. Payment of Costs and Expenses. Each Borrower, jointly
and severally, agrees to pay on demand all reasonable expenses of each Agent
(including the reasonable fees and out-of-pocket expenses of Xxxxx, Xxxxx &
Xxxxx, counsel to the Agents) in connection with (a) the negotiation,
preparation, execution and delivery of this Amendment, whether or not the
transactions contemplated hereby are consummated, and (b) the preparation and
review of the form of any document or instrument relevant to this Amendment.
Each Borrower further jointly and severally agrees to pay, and to save the
Agents, the Documentation Agent and the Lenders harmless from all liability
for, any stamp or other similar Taxes which may be payable in connection with
the execution or delivery of this Amendment.
Section 8. Severability. Any provision of this Amendment which is
prohibited or unenforceable in any jurisdiction shall, as to such provision and
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this
Amendment or affecting the validity or enforceability of such provision in any
other jurisdiction.
Section 9. Headings. The various headings of this Amendment are
inserted for convenience only and shall not affect the meaning or
interpretation of this Amendment or any provisions hereof.
Section 10. Execution in Counterparts. This Amendment may be
executed by the parties hereto in several counterparts, each of which shall be
deemed to be an original (whether such counterpart is originally executed or an
electronic copy of an original and each party hereto other than the Agents and
Sterling expressly waives its rights to receive originally executed documents)
and all of which shall constitute together but one and the same agreement.
Section 11. Governing Law; Entire Agreement. THIS AMENDMENT SHALL
BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE
STATE OF NEW YORK, EXCLUDING THE LAW OF CONFLICTS BUT GIVING EFFECT TO FEDERAL
LAWS APPLICABLE TO NATIONAL BANKS. This Amendment, the Existing Credit
Agreement and the other Loan Documents constitute the entire understanding
among the parties hereto and thereto with respect to the subject matter hereof
and thereof and supersede any prior agreements, written or oral, with respect
thereto.
Section 12. Loan Document Pursuant to Existing Credit Agreement.
This Amendment is a Loan Document pursuant to the Existing Credit Agreement and
shall be construed, administered and applied in accordance with all of the
terms and provisions of the Existing Credit Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be duly executed and delivered by their respective duly authorized officers
as of the Amendment Effective Date.
THE BORROWERS: STERLING CHEMICALS, INC.
By:
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Xxxx X. Xxxxx, Vice President - Finance
and Chief Financial Officer
STERLING CANADA, INC.
By:
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Xxxx X. Xxxxx, Vice President - Finance
STERLING CHEMICALS ENERGY, INC.
By:
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Xxxx X. Xxxxx, Vice President
STERLING CHEMICALS INTERNATIONAL, INC.
By:
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Xxxx X. Xxxxx, Vice President
STERLING FIBERS, INC.
By:
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Xxxx X. Xxxxx, Vice President
STERLING PULP CHEMICALS, INC.
By:
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Xxxx X. Xxxxx, Vice President - Finance
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STERLING PULP CHEMICALS US, INC.
By:
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Xxxx X. Xxxxx, Vice President - Finance
AGENTS AND LENDERS: THE CIT GROUP/BUSINESS CREDIT, INC.,
As Administrative Agent and a Lender
By:
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Printed Name:
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Title:
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DLJ CAPITAL FUNDING, INC.,
As Syndication Agent
By:
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Printed Name:
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Title:
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CREDIT SUISSE FIRST BOSTON,
As Documentation Agent
By:
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Printed Name:
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Title:
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By:
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Printed Name:
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Title:
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IBJ WHITEHALL BUSINESS CREDIT
CORPORATION
By:
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Printed Name:
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Title:
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FLEET CAPITAL CORPORATION
By:
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Printed Name:
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Title:
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COAST BUSINESS CREDIT,
A Division Of Southern Pacific Bank
By:
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Printed Name:
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Title:
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FINOVA CAPITAL CORPORATION
By:
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Printed Name:
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Title:
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TEXTRON FINANCIAL CORP.
By:
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Printed Name:
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Title:
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GREEN TREE FINANCIAL SERVICING
CORPORATION
By:
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Printed Name:
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Title:
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GMAC BUSINESS CREDIT, LLC
By:
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Printed Name:
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Title:
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THE PROVIDENT BANK
By:
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Printed Name:
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Title:
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GPSF SECURITIES, INC.
By:
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Printed Name:
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Title:
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FOOTHILL CAPITAL CORPORATION
By:
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Printed Name:
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Title:
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CONGRESS FINANCIAL CORPORATION
(SOUTHWEST)
By:
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Printed Name:
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Title:
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COMERICA BANK
By:
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Printed Name:
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Title:
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KZH STERLING, LLC
By:
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Printed Name:
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Title:
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