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Exhibit 10.36(a)
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of March 10, 1995
among
MINERAL HOLDINGS INC.
WORLD MINERALS INC.,
THE BANKS NAMED HEREIN,
NATIONSBANK, N.A. (CAROLINAS),
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
as Co-Agent,
and
CHEMICAL BANK,
as Administrative Agent,
Collateral Agent
and Co-Agent
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS........................................................................ 2
SECTION 1.1. Defined Terms................................................................ 2
SECTION 1.2. Terms Generally............................................................. 19
SECTION 1.3. Accounting Terms, GAAP...................................................... 20
ARTICLE II THE LOANS......................................................................... 20
SECTION 2.1. Term Loans; Conversion of Outstanding
Loans............................................................... 20
SECTION 2.2. Making of Revolving Loans................................................... 21
SECTION 2.3. Notice of Loans............................................................. 22
SECTION 2.4. Interest.................................................................... 23
SECTION 2.5. Alternative Rate of Interest................................................ 24
SECTION 2.6. Interest on Overdue Amounts................................................. 24
SECTION 2.7. Scheduled Amortization of Term Loans........................................ 25
SECTION 2.8. Mandatory Prepayments....................................................... 25
SECTION 2.9. Reduction of Revolving Loan Commitment...................................... 26
SECTION 2.10. Optional Prepayments of Term Loans.......................................... 27
SECTION 2.11. Redeployment Cost........................................................... 27
SECTION 2.12. Conversion and Continuation of
Borrowings.......................................................... 28
SECTION 2.13. Increased Costs............................................................. 29
SECTION 2.14. Change in Legality.......................................................... 31
SECTION 2.15. Pro Rata Treatment.......................................................... 31
SECTION 2.16. Sharing of Setoffs.......................................................... 32
SECTION 2.17. Payments.................................................................... 32
SECTION 2.18. Taxes .................................................................... 33
SECTION 2.19. Fees .................................................................... 35
ARTICLE III LETTERS OF CREDIT................................................................. 36
SECTION 3.1. Issuance of Letters of Credit............................................... 36
SECTION 3.2. Notice .................................................................... 37
SECTION 3.3. Reimbursement; Repayment with Loans......................................... 37
SECTION 3.4. Increased Costs............................................................. 40
SECTION 3.5. Letter of Credit Fees....................................................... 41
ARTICLE IV REPRESENTATIONS AND WARRANTIES.................................................... 42
SECTION 4.1. Organization................................................................ 42
SECTION 4.2. Corporate Power and Authority; No
Required Consents or Approvals...................................... 42
SECTION 4.3. Enforceability.............................................................. 43
SECTION 4.4. Financial Statements........................................................ 43
SECTION 4.5. No Material Adverse Change.................................................. 43
SECTION 4.6. Litigation.................................................................. 44
SECTION 4.7. Compliance with Laws........................................................ 44
SECTION 4.8. Employee Benefit Plans...................................................... 44
SECTION 4.9. Taxes .................................................................... 45
SECTION 4.10. Title to Properties......................................................... 45
SECTION 4.11. Business.................................................................... 45
SECTION 4.12. Agreements.................................................................. 46
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SECTION 4.13. No Material Misstatements................................................... 46
SECTION 4.14. Related Party Transactions.................................................. 46
SECTION 4.15. Labor Matters and Acts of God............................................... 46
SECTION 4.16. Outstanding Debt............................................................ 46
SECTION 4.17. Federal Reserve Regulations................................................. 46
SECTION 4.18. Investment Company Act and Public
Utility Holding Company Act......................................... 46
SECTION 4.19. Security Interests.......................................................... 47
SECTION 4.20. Capital Stock; Subsidiaries................................................. 47
ARTICLE V CONDITIONS TO LENDING................................................................ 49
SECTION 5.1. Loans on the Closing Date................................................... 49
(a) Notes ............................................................................ 49
(b) Corporate Documents.................................................................. 49
(c) Lien Search.......................................................................... 49
(d) No Defaults.......................................................................... 50
(e) Insurance............................................................................ 50
(f) Requisite Approvals.................................................................. 50
(g) Security ............................................................................ 50
(h) Representations and Warranties....................................................... 50
(i) Officer's Certificate................................................................ 50
(k) Legal Matters........................................................................ 51
SECTION 5.2. Revolving Loans Made After Closing Date..................................... 51
(a) Representations and Warranties....................................................... 51
(b) Compliance........................................................................... 51
(c) Notice of Borrowings................................................................. 51
(d) Officer's Certificate............................................................... 51
SECTION 5.3. Letters of Credit Issued After the
Closing Date........................................................ 51
(a) Representations and Warranties....................................................... 51
(b) Compliance........................................................................... 51
(c) Notice ............................................................................ 52
(d) Officer's Certificate................................................................ 52
ARTICLE VI AFFIRMATIVE COVENANTS................................................................ 52
SECTION 6.1. Corporate Existence......................................................... 52
SECTION 6.2. Obligations and Taxes....................................................... 52
SECTION 6.3. Performance Under Agreements................................................ 52
SECTION 6.4. Access to Properties and Inspections........................................ 53
SECTION 6.5. Defense of Claims........................................................... 53
SECTION 6.6. Notices of Litigation or Claims............................................. 53
SECTION 6.7. Notice of Certain Actions................................................... 54
SECTION 6.8. Compliance.................................................................. 54
SECTION 6.9. Further Assurances.......................................................... 54
SECTION 6.10. Business and Properties..................................................... 54
SECTION 6.11. Financial Statements and Reports............................................ 55
SECTION 6.12. Insurance................................................................... 56
SECTION 6.13. Mining Plan................................................................. 57
SECTION 6.14. Interest Rate ▇▇▇▇▇▇........................................................ 57
SECTION 6.15. ERISA .................................................................... 57
SECTION 6.16. Proceeds.................................................................... 58
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ARTICLE VII NEGATIVE COVENANTS................................................................ 58
SECTION 7.1. Indebtedness................................................................ 58
SECTION 7.2. Negative Pledge............................................................. 59
SECTION 7.3. Restricted Payments......................................................... 60
SECTION 7.4. Investments................................................................. 61
SECTION 7.5. Nature of Business.......................................................... 62
SECTION 7.6. Asset Sales................................................................. 62
SECTION 7.7. Acquisitions................................................................ 62
SECTION 7.8. Transactions With Affiliates................................................ 63
SECTION 7.9. Sale and Leaseback Transactions............................................. 64
SECTION 7.10. Merger or Consolidation..................................................... 64
SECTION 7.11. Interest Coverage........................................................... 64
SECTION 7.12. Debt to Worth............................................................... 64
SECTION 7.13. Net Worth................................................................... 64
SECTION 7.14. Fiscal Year................................................................. 65
ARTICLE VIII EVENTS OF DEFAULT................................................................. 65
SECTION 8.1. Defaults.................................................................... 65
ARTICLE IX THE ADMINISTRATIVE AGENT AND CO-AGENTS............................................ 69
ARTICLE X HOLDINGS GUARANTY................................................................. 71
SECTION 10.1. Holdings Guaranty........................................................... 71
SECTION 10.2. Guarantor's Waivers......................................................... 72
SECTION 10.3. Bankruptcy.................................................................. 73
(a) No Effect on Guaranty............................................................. 73
(b) Filing of Claims.................................................................. 74
SECTION 10.4. Payment .................................................................... 75
ARTICLE XI MISCELLANEOUS..................................................................... 75
SECTION 11.1. Notices .................................................................... 75
SECTION 11.2. Survival of Agreement....................................................... 76
SECTION 11.3. Successors and Assigns; Syndications;
Loan Sales; Participations.......................................... 76
SECTION 11.4. Expenses of the Co-Agents and the Banks..................................... 80
SECTION 11.5. Indemnification............................................................. 81
SECTION 11.6. Governing Law............................................................... 82
SECTION 11.7. Waivers; Amendments......................................................... 83
SECTION 11.8. Severability................................................................ 84
SECTION 11.9. Counterparts................................................................ 84
SECTION 11.10. Headings.................................................................... 84
SECTION 11.11. Obligations of Banks Several................................................ 84
SECTION 11.12. Entire Agreement............................................................ 85
SECTION 11.13. Confidentiality............................................................. 85
SECTION 11.14. Release of Certain Liens.................................................... 85
EXHIBITS
EXHIBIT A - Form of Alleghany Subordination Agreement
EXHIBIT B - Form of Assignment and Acceptance
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EXHIBIT C - Celite Guaranty Agreement
EXHIBIT D - Celite Pledge Agreement
EXHIBIT D-1 - Celite Mexico Pledge Agreement
EXHIBIT E - Holdings Pledge Agreement
EXHIBIT F - Pledge Agreement
EXHIBIT G - Form of Revolving Credit Note
EXHIBIT H - Form of Term Loan Note
EXHIBIT I - Letter of Credit Application
EXHIBIT J - Letter of Credit Application
EXHIBIT K - Form of Notice of Borrowing
ANNEXES
ANNEX I - The Banks
ANNEX II - Financing Documents
ANNEX III - Financials
ANNEX IV - List of Material Subsidiaries
ANNEX V - List of Jurisdictions
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AMENDED AND RESTATED CREDIT AGREEMENT
dated as of March 10, 1995, among MINERAL
HOLDINGS INC., a Delaware corporation
("Holdings"), WORLD MINERALS INC., a Delaware
corporation (the "Borrower"), the BANKS (as
hereinafter defined), NATIONSBANK, N.A.
("CAROLINAS) ("NationsBank"), BANK OF AMERICA
NATIONAL TRUST & SAVINGS ASSOCIATION, a
national banking association ("Bank of
America"), as co-agent, and CHEMICAL BANK, a
New York banking corporation ("Chemical"), as
administrative agent, collateral agent and
co-agent for the Banks.
PREAMBLE
The Borrower, Holdings, the Banks, Bank of America and
Chemical are parties to a Credit Agreement dated as of December 20, 1991, as
amended through Amendment No. 5 to Credit Agreement dated as of December 20,
1993 (the "Existing Agreement"), pursuant to which the Banks have provided to
the Borrower a $70 million senior secured revolving loan facility (the "Existing
Facility"). The Borrower, Holdings, the Banks, Bank of America and Chemical wish
to amend and restate the Existing Agreement in its entirety in order to, among
other things, provide for (a) a senior secured term loan facility in a principal
amount of $57,000,000 (the "Term Loan Facility") and (b) a senior secured
revolving loan facility in a principal amount of $60,000,000 (the "Revolving
Loan Facility"; and the Revolving Loan Facility collectively with the Term Loan
Facility, the "Facility") of which up to $20 million will be available for the
issuance of letters of credit on behalf of the Borrower and its Subsidiaries
(the "Letter of Credit Facility").
On the effective date of this Agreement, all of the loans
outstanding under the Existing Agreement will be converted into Term Loans (as
defined herein). Thereafter, availability under the Revolving Credit Facility
may be utilized by the Borrower for letters of credit, acquisitions and general
corporate purposes (including payments permitted pursuant to Section 7.3), in
each case subject to the terms and conditions set forth herein.
The obligations of the Borrower, Holdings and Celite under
this Agreement and the other Loan Documents are not guaranteed by Alleghany
Corporation and no commitments are made by Alleghany Corporation with respect
thereto.
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IN WITNESS WHEREOF, the parties to this Agreement, intending
to be bound hereby, hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Defined Terms. As used in this Agree-
ment, the following terms shall have the following respective
meanings:
"ABR Loan" shall mean a Loan made in accordance with the
provisions of Article II bearing interest at a rate based on the Alternate Base
Rate.
"Adjusted LIBO Rate" shall mean, with respect to any
Eurodollar Loan for any Interest Period, an interest rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to the product of (a) the
LIBO Rate in effect for such Interest Period and (b) Statutory Reserves.
"Administrative Agent" shall mean Chemical, as administrative
agent for the Banks hereunder.
"Administration Fee" shall mean the fee payable by the
Borrowers to the Administrative Agent in accordance with Section 2.19(b) hereof.
"Affiliate" shall mean, with respect to any Person, another
Person that directly or indirectly through one or more intermediaries Controls,
is Controlled by or is under common Control with such Person.
"Aggregate Commitment" at any time shall mean the sum of the
Revolving Credit Commitment and the Term Loan Commitment.
"Alleghany" shall mean Alleghany Corporation, a Delaware
corporation and, as of the date hereof, holder of a majority of the outstanding
capital stock of Holdings.
"Alleghany Subordination Agreement" shall mean a subordination
agreement between Alleghany and the Collateral Agent in the form of Exhibit A
attached hereto.
"Alternate Base Rate" shall mean, with respect to any ABR Loan
made by a Bank, for any day, a variable rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to the greatest of (a) the Federal
Funds Effective Rate in effect on such day plus 1/2 of 1%, (b) the fluctuating
rate of interest announced from time to time by the Administrative Agent in its
principal office in New York City as its prime rate in effect on such day (it
being understood that the prime rate is not intended
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to represent the lowest rate of interest charged by the Administrative Agent in
connection with extensions of credit to debtors) and (c) the Base CD Rate in
effect on such day plus 1%. If for any reason any Bank shall have determined
(which determination shall be conclusive absent manifest error) that it is
unable to ascertain the Federal Funds Effective Rate or the Base CD Rate or both
for any reason, including the inability or failure of the Administrative Agent
to obtain sufficient quotations in accordance with the terms thereof, the
Alternate Base Rate shall be determined without regard to clause (a) or (c), or
both, of this definition, as appropriate, until the circumstances giving rise to
such inability no longer exist. For purposes of this Agreement, any change in
the Alternate Base Rate shall be effective on the date such change is announced.
"Applicable Law" shall mean all provisions of laws, statutes,
ordinances, rules, regulations or orders of any Governmental Authority
applicable to the Person in question, and all judgments, injunctions, orders and
decrees of all courts and arbitrators in proceedings or actions in which the
Person in question is a party or by which any of its assets or properties may be
bound.
"Assessment Rate" shall mean, for any day, the annual rate
(rounded upwards, if necessary, to the next 1/100 of 1%) most recently estimated
by the Administrative Agent as the then current net annual assessment rate that
will be employed in determining amounts payable by the Administrative Agent to
the Federal Deposit Insurance Corporation (or any successor) for insurance by
such corporation (or such successor) of time deposits made in dollars at the
Administrative Agent's domestic offices.
"Asset Sale" shall mean any sale, transfer, lease or other
disposition of all or any part of the assets, properties or rights of Holdings,
the Borrower or any other Subsidiary, other than (i) a sale, transfer, lease or
other disposition solely between two Subsidiaries in accordance with Section
7.8(b), (ii) sales of inventory in the ordinary course of business or (iii)
sales or trade ins of property, machinery or equipment which is being replaced
in the ordinary course of business or otherwise within one year of sale.
"Assignment and Acceptance" shall mean an assignment and
acceptance entered into by a Bank and an assignee in the form of Exhibit B
attached hereto.
"Bank" and "Banks" shall mean the financial institutions named
in Annex I which have executed and delivered a counterpart of this Agreement,
and any assignee of a Bank pursuant to Section 11.3(b).
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"Bank of America" shall have the meaning given to such term in
the Preamble to this Agreement.
"Base CD Rate" shall mean the sum of (a) the product of (i)
the Three-Month Secondary CD Rate times (ii) Statutory Reserves and (b) the
Assessment Rate.
"Board" shall mean the Board of Governors of the Federal
Reserve System of the United States.
"Borrower" shall have the meaning given to such term in the
Preamble of this Agreement.
"Business" shall have the meaning given to such term in
Section 4.11 hereof.
"Business Day" shall mean any day (other than a Saturday,
Sunday or legal holiday in the State of New York) on which banks are open for
business in New York City except that, if any determination of a "Business Day"
shall relate to a Eurodollar Loan, the term "Business Day" shall, in addition,
exclude any day on which banks are not open for dealings in dollar deposits in
the London interbank market.
"Capital Expenditure" shall mean, with respect to any Person
in any period, the sum of all amounts that would, in accordance with GAAP, be
included as capital expenditures on a consolidated statement of cash flows of
such Person during such period; provided, however, that for the purpose of
determining compliance with Section 7.11, "Capital Expenditure" shall not
include capital expenditures made to improve or develop property (as opposed to
capital expenditures for maintenance or similar ordinary course of business
improvements) acquired in an Acquisition permitted under Section 7.7 if, prior
to the closing of such Acquisition, (i) the Borrower notifies the Administrative
Agent in writing that it has elected to treat certain capital expenditures (the
"Acquisition CapEx") relating to such Acquisition as part of the original
acquisition or investment cost, (ii) the Borrower provides the Administrative
Agent with a reasonably detailed description of the Acquisition CapEx, (iii) if
all Acquisition CapEx is included in the "aggregate consideration" for such
Acquisition, the Acquisition is permitted under Section 7.7 and (iv) the
Borrower represents to the Administrative Agent, on behalf of the Banks, that
such Acquisition CapEx will be utilized to refurbish, develop or make similar
major improvements on such property rather than to maintain or make minor
improvements in the ordinary course of business.
"Capital Lease Obligations" shall mean, with respect to any
Person in any period, the obligations of such Person to pay rent or other
amounts under any lease of (or other arrangement conveying the right to use)
real or personal property, or a
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combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP
and, for the purposes of this Agreement, the amount of such obligations at any
time shall be the capitalized amount thereof at such time determined in
accordance with GAAP.
"Cash Collateral Account" shall have the meaning given such
term in Section 3.3(d) hereof.
"Celite" shall mean Celite Corporation, a Delaware corporation
and a wholly-owned subsidiary of the Borrower.
"Celite Guaranty Agreement" shall mean the Amended and
Restated Guaranty Agreement dated as of the date hereof and delivered by Celite
to the Collateral Agent for the ratable benefit of the Banks, in the form of
Exhibit C.
"Celite Pledge Agreement" shall mean (i) the Amended and
Restated Pledge Agreement dated as of the date hereof in the form of Exhibit D
and (ii) the Pledge Agreement dated as of December 20, 1991, in the form of
Exhibit D-1, in each case delivered by Celite to the Collateral Agent for the
ratable benefit of the Banks.
"Chemical" shall have the meaning given to such term in the
Preamble to this Agreement.
"Closing" shall mean the closing of the transactions
contemplated by this Agreement.
"Closing Date" shall mean March 10, 1995, or such other date
as the Banks and the Borrower shall agree.
"Co-Agents" shall mean Chemical and Bank of America as
co-agents hereunder, severally and not jointly.
"Code" shall mean the Internal Revenue Code of 1986, as
amended, and the rules and regulations issued thereunder, as now and hereafter
in effect, or any successor provision thereto.
"Collateral" shall mean all of the "Collateral" as defined in
each of the Financing Documents.
"Collateral Agent" shall mean Chemical, as Collateral
Agent for the Banks under the Financing Documents.
"Commitment Fee" shall have the meaning given such term in
Section 2.19(a) hereof.
"Control" shall mean, with respect to any Person, the
possession, directly or indirectly, of the power to direct or
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cause the direction of the management or policies of a Person, whether through
the ownership of voting securities, by contract or otherwise.
"Cumulative Net Income" shall mean, at any time, an amount
equal to the sum of the Net Income of Holdings and its Subsidiaries, on a
consolidated basis, from January 1, 1992, to and including the last day of the
last fiscal quarter which has ended prior to or on the date of such calculation.
"Default" shall mean any event which, with (i) the giving of
any notice expressly provided for in Article VIII and/or (ii) the passage of any
waiting period or cure period expressly provided for therein, would constitute
an Event of Default.
"Dollars" and "$" shall mean lawful money of the United
States of America.
"Domestic Subsidiaries" shall mean, collectively, those
Subsidiaries organized and existing under the laws of the United States or any
state of the United States but excluding any branches of such Subsidiaries
registered or operating in jurisdictions located outside the United States.
"Drawing" shall mean any payment or disbursement made by the
Issuing Bank under a Letter of Credit honoring a demand for payment by a
beneficiary of such Letter of Credit.
"EBITDA" shall be calculated on a consolidated basis for
Holdings and its Subsidiaries and shall mean, for each Fiscal Year, without
duplication, (a) Net Income for such Fiscal Year, plus (b) interest expense
deducted in determining such Net Income, plus (c) depreciation expense deducted
in determining such Net Income, plus (d) amortization expense deducted in
determining such Net Income, plus (e) other non-cash items of expense deducted
in determining such Net Income, plus (f) provision for federal, state, local and
foreign taxes to the extent deducted in determining such Net Income, less (g) to
the extent included in determining such Net Income, income during such period
attributable to non-operating gains (including Asset Sales), including
extraordinary or unusual gains, gains from discontinuance of operations and
other non-recurring gains, plus (h) to the extent deducted in determining such
Net Income, losses during such period attributable to any similar non-operating
losses, in each case computed in accordance with GAAP.
"Eligible Assignee" means (A) (i) a commercial bank or trust
company organized under the laws of the United States or any state thereof; (ii)
a saving and loan association or savings bank organized under the laws of the
United States or any state thereof; and (iii) a commercial bank or trust company
organized under the laws of any other country or a political subdivision
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thereof, provided that such bank or trust company is acting through a trust
company that is organized under the laws of a country that is a member of the
Organization for Economic Cooperation and Development or a political subdivision
of such country and (B) any Bank and any Affiliate of any Bank; provided that no
Affiliate of the Borrower shall be an Eligible Assignee; and provided further
that such Eligible Assignee must have at the time of determination unimpaired
capital and surplus of not less than $100,000,000.
"Environmental Claim" means all claims, however asserted, by
any Governmental Authority or other Person alleging potential liability or
responsibility for violation of any Environmental Law or for release or injury
to the environment or threat to public health, personal injury (including
sickness, disease or death), property damage, natural resources damage, or
otherwise alleging liability or responsibility for damages (punitive or
otherwise), cleanup, removal, remedial or response costs, restitution, civil or
criminal penalties, injunctive relief, or other type of relief, resulting from
or based upon (a) the presence, placement, discharge, emission or release
(including intentional and unintentional, negligent and nonnegligent, sudden or
non-sudden, accidental or non-accidental placement, spills, leaks, discharges,
emissions or releases) of any Hazardous Material at, in or from property,
whether or not owned by Holdings or any Subsidiary, or (b) any other
circumstances forming the basis of any violation, or alleged violation, of any
Environmental Law.
"Environmental Laws" at any date shall mean all provisions of
Applicable Law concerning the protection of the environment (including, without
limitation, soil, the air, surface waters, ground water and land use) together
with all administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
including, without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 ("CERCLA"), the Clean Air Act, the
Federal Water Pollution Control Act of 1972, the Solid Waste Disposal Act, the
Federal Resource Conservation and Recovery Act, the Toxic Substances Control
Act, the Emergency Planning and Community Right-to-Know Act, the California
Hazardous Waste Control Law, the California Solid Waste Management, Resource
Recovery and Recycling Act, the California Water Code and the California Health
and Safety Code.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as such Act may from time to time be amended, and final regulations
promulgated thereunder.
"ERISA Affiliate" shall mean any Person (including each trade
or business (whether or not incorporated)) which together with Holdings or any
of its Subsidiaries would be deemed to be a
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member of the same "controlled group" within the meaning of Section 414(b) of
the Code, under "common control" within the meaning of Section 414(c) of the
Code or a member of the same "affiliated service group" within the meaning of
Section 414(m) of the Code and the regulations, if any, promulgated under
Section 414(o) of the Code.
"Eurodollar Loan" shall mean a Loan bearing interest at a rate
based on the LIBO Rate in accordance with the provisions of Article II.
"Eurodollar Margin" shall have the meaning given to such term
in Section 2.4.
"Event of Default" shall mean any of the events set
forth in Article VIII hereof.
"Excluded Subsidiary" shall have the meaning given such term
in Section 7.7 hereof.
"Existing Agreement" shall have the meaning given to such term
in the Preamble to this Agreement.
"Existing Facility" shall have the meaning given to such term
in the Preamble of this Agreement.
"Expropriatory Action" shall mean any action or series of
actions that is taken, authorized, ratified or condoned by the United States of
America or any Governmental Authority or other Person in any country in which a
Subsidiary operates, owns or maintains a place of business, or any agency or
instrumentality thereof, for the appropriation, confiscation, expropriation or
nationalization (by intervention, condemnation or other form of taking), whether
with or without compensation and whether under color of law or otherwise, of any
ownership interest in the stock of any Subsidiary or ownership interest of any
Subsidiary in any asset or property or access thereto.
"Facility" shall have the meaning given to such term in the
Preamble to this Agreement.
"Fair Value" of an asset shall mean the consideration
obtainable in a sale of such asset in an arm's-length transaction with a Person
who is not an Affiliate of the seller.
"Federal Funds Effective Rate" shall mean, for any day, the
weighted average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers, as
published on the next succeeding Business Day by the Federal Reserve Bank of New
York, or if such rate is not so published for any day which is a Business Day,
the average of the quotations for the day of such transactions
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received by the Administrative Agent from three federal funds brokers of
recognized standing selected by it.
"Fee Letter" shall mean the letter agreement dated as of the
date hereof among the Borrower, Holdings and Chemical, with respect to certain
fees and other compensation payable by the Borrower and Holdings to Chemical and
the Banks.
"Fees" shall mean any and all fees and compensation payable to
the Administrative Agent, the Co-Agents or any Bank hereunder or under any other
Loan Document, including, without limitation, any fees payable under the Fee
Letter.
"Final Maturity Date" shall mean December 31, 1999.
"Financial Officer" of any Person shall mean its chief
financial officer or principal accounting officer.
"Financing Documents" shall mean each of the documents
identified on Annex II.
"Fiscal Year" shall mean, with respect to Holdings and its
Subsidiaries, each period from January 1 to December 31 of each year.
"Foreign Subsidiaries" shall mean, collectively, those
Subsidiaries which are organized or existing under the laws of a jurisdiction
located outside of the United States and any branches of Domestic Subsidiaries
which are registered or operating in jurisdictions located outside of the United
States.
"GAAP" shall mean generally accepted accounting principles in
the United States in effect from time to time.
"Governmental Authority" shall mean any federal, state,
municipal or other governmental department, commission, board, bureau, agency or
instrumentality, or any court, in each case whether of the United States or a
foreign jurisdiction.
"Guarantors" shall mean, collectively, Holdings and
Celite.
"Guarantor Pledge Agreements" shall mean, collectively,
the Holdings Pledge Agreement and the Celite Pledge Agreement.
"Guaranty" shall mean any obligation, contingent or otherwise,
of any Person guaranteeing or having the economic effect of guaranteeing any
Indebtedness or other obligation of any other Person in any manner, whether
directly or indirectly, including any obligation of such Person, direct or
indirect, (a) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Indebtedness or to purchase (or to advance or supply funds for
the purchase of) any security for the
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payment of such Indebtedness, (b) to purchase property, securities or services
for the purpose of assuring the owner of such Indebtedness of the payment of
such Indebtedness, (c) to purchase or otherwise pay for merchandise, materials,
supplies, services or other property which provides that payment for such
merchandise, materials, supplies, services or other property shall be made
regardless of whether delivery of such merchandise, materials, supplies,
services or other property is ever made or tendered, or (d) to maintain the
working capital, equity capital or other financial statement condition of the
primary obligor.
"Harborlite Common Stock" shall have the meaning given to such
term in Section 4.20(d).
"Harborlite Documents" shall mean the Perlite Business
Agreement dated as of October 30, 1992, among Minerals and the other parties
thereto, and each other document or agreement attached as an exhibit thereto.
"Harborlite Preferred Stock" shall have the meaning given to
such term in Section 4.20(d).
"Hazardous Materials" means all those substances which are
regulated by, or which may form the basis of liability under, any Environmental
Law, including all substances identified under any Environmental Law as a
pollutant, contaminant, hazardous substance, hazardous material, or toxic
substance, or petroleum or petroleum derived substance or waste.
"Holdings" shall have the meaning given to such term in the
Preamble to this Agreement.
"Holdings Guaranty" shall have the meaning given to such term
in Section 10.1.
"Holdings Pledge Agreement" shall mean the Pledge Agreement
dated as of December 20, 1991, and delivered by Holdings to the Collateral Agent
for the ratable benefit of the Banks, in the form of Exhibit E.
"Indebtedness" of any Person shall mean, without duplication,
(a) all obligations of such Person for borrowed money or with respect to
deposits or advances of any kind, (b) all obligations of such Person evidenced
by bonds, debentures, notes or similar instruments (including any
acknowledgments evidencing payment-in-kind loan transactions), (c) all
obligations of such Person upon which interest charges are customarily paid
(other than trade payables in the ordinary course of business), (d)
reimbursement obligations with respect to letters of credit and similar
instruments, (e) all obligations of such Person under conditional sale or other
title retention agreements relating to property or assets purchased by such
Person, (f) all obligations of such Person issued or assumed as
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the deferred purchase price of property or services, other than accounts payable
incurred and paid on terms customary in the business of such Person (it being
understood that the "deferred purchase price" in connection with any purchase of
property or assets shall include only that portion of the purchase price which
shall be deferred beyond the date on which the purchase is actually
consummated), (g) all obligations of others secured by (or for which the holder
of such Indebtedness has an existing right, contingent or otherwise, to be
secured by) any Lien on property owned or acquired by such Person, whether or
not the obligations secured thereby have been assumed, (h) obligations under
forward sales, futures, options and other similar hedging arrangements, (i)
obligations to purchase or otherwise pay for merchandise, materials, supplies,
services or other property which provides that payment for such merchandise,
materials, supplies, services or other property shall be made regardless of
whether delivery of such merchandise, materials, supplies, services or other
property is ever made or tendered, (j) any Guaranty by such Person of an
obligation of others and (k) all Capital Lease Obligations of such Person.
"Indemnified Person" shall have the meaning given to such term
in Section 11.5.
"Information" shall have the meaning given to such term
in Section 11.13.
"Insolvency" shall mean, with respect to any Multiemployer
Plan, the condition that such Plan is insolvent within the meaning of such term
as used in Section 4245 of ERISA.
"Intellectual Property" shall have the meaning given to such
term in Section 4.10(b) hereof.
"Interest Expense" shall be calculated on a consolidated basis
for Holdings and its Subsidiaries and shall mean, for any period, all cash
interest expense of such Persons for all Indebtedness outstanding during such
period computed in accordance with GAAP.
"Interest Payment Date" shall mean (a) the last day of an
Interest Period, (b) in the case of any Eurodollar Loan having an Interest
Period of six months, (i) the day which is three months after the first day of
such Interest Period and (ii) the last day of such Interest Period and (c) the
date of any refinancing or conversion of such Loan with or into a Loan of a
different type, the date of prepayment of such Loan and the Final Maturity Date;
provided, however, that any Interest Payment Date which is not a Business Day
shall be extended to the immediately succeeding Business Day except with respect
to a Eurodollar Loan as provided in the definition of Interest Period.
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"Interest Period" shall mean, (a) as to any Eurodollar Loan,
the period commencing on the date of such Loan and ending on the numerically
corresponding day in the calendar month one month, two months, three months or
six months thereafter, as the Borrower may elect and, thereafter, each period
commencing on the last day of the immediately preceding Interest Period for such
Eurodollar Loan and ending on the numerically corresponding day in the calendar
month one month, two months, three months or six months thereafter, as the
Borrower may elect and (b) as to any ABR Loan, the period commencing on the date
of such Loan and ending on the earliest of (i) the immediately succeeding March
31, June 30, September 30, or December 31 or (ii) the date of any conversion in
accordance with Section 2.12 hereof (if after the date of such Loan); provided,
however, that (A) if any Interest Period would end on a day which shall not be a
Business Day, such Interest Period shall be extended to the immediately
succeeding Business Day, unless, in the case such Interest Period is applicable
to a Eurodollar Loan, such next succeeding Business Day would fall in the
immediately succeeding calendar month, in which case such Interest Period shall
end on the immediately preceding Business Day and (B) any Interest Period with
respect to a Eurodollar Loan that begins on the last Business Day of a calendar
month (or on a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall end on the last
Business Day of a calendar month.
"Investments" shall have the meaning given such term in
Section 7.4 hereof.
"Issuing Bank" shall mean Chemical or Bank of America.
"LC Fee" shall have the meaning given to such term in Section
3.5.
"Lending Office" shall mean, with respect to any of the Banks,
the branch or branches (or Affiliate or Affiliates) from which any such Bank's
Eurodollar Loans or ABR Loans, as the case may be, are made or maintained and
for the account of which all payments of principal of, and interest on, such
Bank's Eurodollar Loans or ABR Loans are made, as provided to the Administrative
Agent from time to time in accordance with Section 11.1 hereof.
"Letter of Credit" shall have the meaning given to such term
in Section 3.1 hereof.
"Letter of Credit Exposure" shall mean, at any time, the sum
of (a) the aggregate undrawn principal amount of all Letters of Credit
outstanding at such time, (b) the aggregate principal amount of all Letters of
Credit requested by the Borrower prior to such time pursuant to Section 3.2 and
not yet issued by the Issuing Bank and (c) the aggregate amount of all
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Reimbursement Obligations which have not at such time been converted to ABR
Loans.
"Letter of Credit Facility" shall have the meaning given to
such term in the Preamble to this Agreement.
"LIBO Rate" shall mean, with respect to any Eurodollar Loan
for any Interest Period, the rate determined by the Administrative Agent to be
the arithmetic average of the rates (rounded upwards, if necessary, to the next
1/16 of 1%) at which dollar deposits approximately equal in principal amount to
such Eurodollar Loan made by the Co-Agents and for a maturity comparable to such
Interest Period are offered to the principal London offices of the Co-Agents in
immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period.
"Lien" shall mean, with respect to any asset, (a) any
mortgage, deed of trust, lien, pledge, encumbrance, charge or security interest
of any kind whatsoever in or on such asset (including the filing of or agreement
to give any financing statement under the Uniform Commercial Code of any
jurisdiction), (b) the interest of a vendor or a lessor under any conditional
sale agreement, capital lease or title retention agreement relating to such
asset and (c) in the case of securities, any purchase option, call, appreciation
right or similar right of a third party with respect to such securities.
"Loan" shall mean any Term Loan or Revolving Loan.
"Loan Documents" shall mean this Agreement, the Financing
Documents, the Alleghany Subordination Agreement, any agreement with any Bank in
connection with any interest rate, hedge or protection transaction as required
by Section 6.14 or any other agreement or certificate delivered by the Borrower
or the Guarantors in connection herewith.
"Majority Banks" shall mean, at any time, the Banks holding
sixty-six and two-thirds percent (66 2/3%) of the aggregate principal amount of
the Loans then outstanding, or if no Loans are then outstanding, Banks having
Pro Rata Shares representing sixty-six and two-thirds percent (66 2/3%) of the
Aggregate Commitment.
"Mandatory Prepayment" shall have the meaning given to such
term in Section 2.8.
"Material Adverse Effect" shall mean (a) a material adverse
effect on the business, assets, operations, condition (financial or otherwise)
of Holdings and its Subsidiaries, taken as a whole, (b) a material impairment of
the ability of either the Borrower or any Guarantor to perform any of its
material
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obligations under any Loan Document to which it is a party or (c) any material
impairment of the security interest of the Banks in the Collateral.
"Material Subsidiary" shall mean each Subsidiary listed on
Annex IV.
"Multiemployer Plan" shall mean a Plan which is a
multiemployer plan as defined in Section 4001(a)(3) of ERISA.
"Net Income" shall mean, for any Person for any period, the
net income of such Person computed in accordance with GAAP.
"Net Proceeds" shall mean, with respect to any Asset Sale, the
aggregate consideration received by a Person in connection with such Asset Sale
less reasonable costs incurred in respect of such sale (including taxes paid or
payable in connection therewith); provided, however, that if the consideration
received by any Person in connection with any Asset Sale does not constitute
cash or a cash equivalent, the Net Proceeds from such Asset Sale shall be deemed
to be an amount equal to the Fair Value of the consideration so received.
"Net Worth" shall be calculated on a consolidated basis for
Holdings and its Subsidiaries and shall mean, at any point in time, the net book
value of the assets of Holdings and its Subsidiaries, as shown on Holdings'
consolidated balance sheet, less the sum of (i) the amount of any write-up
effective after September 16, 1991, in the value of any asset above the cost or
depreciated cost thereof to Holdings and/or the Subsidiaries and (ii) total
liabilities as shown on such balance sheet, in each case computed in accordance
with GAAP, provided, however, that Net Worth shall not include any adjustment
required by GAAP to give effect to losses or gains arising solely as a result of
currency translations.
"Note" shall mean each Revolving Credit Note and Term Loan
Note delivered by the Borrower to the Banks in accordance with the terms hereof.
"Obligations" shall mean the due and punctual payment of
principal of and interest on the Loans, the Fees and any Reimbursement
Obligations hereunder and all other obligations of the Borrower or any Guarantor
to the Administrative Agent, the Co-Agents, the Collateral Agent or any Bank
under this Agreement (including, without limitation, all obligations under
Section 2.13 and 3.4), any Note, the Letters of Credit, any other Loan Document
or to any Bank in connection with any interest rate hedge or protection
transaction as required by Section 6.14.
"Organizational Documents" shall mean, with respect to any
Person, each instrument or other document that (a) defines the existence of such
Person, as filed or recorded with an
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applicable Governmental Authority or (b) governs the internal affairs of such
Person, in each case as amended, supplemented or restated.
"Other Taxes" shall have the meaning given to such term in
Section 2.18(b).
"Parent Contributions" shall mean cash received by Holdings
from its stockholders as a contribution to capital and up to $10 million of any
cash received by Holdings from its stockholders as subordinated debt, provided
Alleghany has, prior to the issuance of such subordinated debt, executed and
delivered the Alleghany Subordination Agreement.
"PBGC" shall mean the Pension Benefit Guaranty Corporation.
"Permitted Acquisitions" shall have the meaning given such
term in Section 7.7 hereof.
"Permitted Indebtedness" shall mean Indebtedness permitted to
be incurred under clauses (a) through (j) of Section 7.1 hereof.
"Permitted Investments" shall mean (i) direct obligations of
the United States or of any agency thereof, or obligations guaranteed as to
principal and interest by the United States government, (ii) bankers'
acceptances and certificates of deposit issued by the Administrative Agent, any
Co-Agent, any Bank or any other bank or trust company or, in the case of any
subsidiary bank of a bank holding company, a bank holding company, having
capital, surplus and undivided profits of at least $500,000,000, the short-term
deposit rating of which is given a A1 or P1 rating by Standard & Poor's
Corporation or ▇▇▇▇▇'▇ Investors Service, Inc., as applicable, (iii) obligations
of the Administrative Agent, any Co-Agent, any Bank or any bank or trust company
or bank holding company described in clause (ii) above, in respect of the
repurchase of obligations of the type described in clause (i) hereof, provided
that such repurchase obligations shall be fully secured by obligations of the
type described in said clause (i) and the possession of such obligations shall
be transferred to, and segregated from other obligations owned by, the
Administrative Agent, any Co-Agent, any Bank or any such Bank's trust company or
bank holding company, (iv) commercial paper given a rating of A1 or P1 by
Standard & Poor's Corporation or ▇▇▇▇▇'▇ Investors Service, Inc., as applicable,
maturing not more than 270 days from the date of acquisition and (v) securities
issued by money market funds that meet external money market guidelines and have
90% or more of their investments in commercial paper meeting the requirements of
(iv) above or investments of comparable quality.
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"Permitted Liens" shall mean Liens permitted in accordance
with Section 7.2 hereof.
"Permitted Subsidiary Indebtedness" shall mean, at any time,
an aggregate of $10.0 million of Indebtedness incurred by the Foreign
Subsidiaries in the ordinary course of business, other than Indebtedness of a
Foreign Subsidiary to Holdings, the Borrower or Celite incurred in accordance
with the provisions of this Agreement.
"Person" shall mean and include any natural person, company,
partnership, joint venture, corporation, business trust, unincorporated
organization or Governmental Authority.
"Plan" shall mean any defined benefit pension plan which is
subject to the provisions of Title IV of ERISA (or similar legislation in the
jurisdiction in which a Subsidiary is organized) and which is maintained for or
contributed to on behalf of employees of the Parent or any Subsidiary, as the
case may be, or any ERISA Affiliate of the Parent or any Subsidiary.
"Pledge Agreement" shall mean the Amended and Restated Pledge
Agreement dated the date hereof between the Borrower and the Banks in the form
of Exhibit F attached hereto.
"Pro Rata Share" shall mean, with respect to any Bank at any
time, the percentage set forth in Column B of Annex II attached hereto.
"Rate Certificate" shall have the meaning given to such term
in Section 2.4(c).
"Register" shall have the meaning given such term in
Section 11.3(d).
"Regulation D" shall mean Regulation D of the Board, as the
same is from time to time in effect, and all official rulings and
interpretations thereunder or thereof.
"Regulation G" shall mean Regulation G of the Board, as the
same is from time to time in effect, and all official rulings and
interpretations thereunder or thereof.
"Regulation T" shall mean Regulation T of the Board, as the
same is from time to time in effect, and all official rulings and
interpretations thereunder or thereof.
"Regulation U" shall mean Regulation U of the Board, as the
same is from time to time in effect, and all official rulings and
interpretations thereunder or thereof.
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"Regulation X" shall mean Regulation X of the Board, as the
same is from time to time in effect, and all official rulings and
interpretations thereunder or thereof.
"Reimbursement Obligation" shall mean, as to any Letter of
Credit issued hereunder which has been the subject of a Drawing, the obligations
of the Borrower to reimburse the Issuing Bank or, if applicable, the Banks for
the principal amount of such Drawing, plus accrued interest thereon, as provided
in Section 3.3(a) hereof.
"Reorganization" shall mean, with respect to any Multiemployer
Plan, the condition that such Plan is in reorganization within the meaning of
such term as used in Section 4241 of ERISA.
"Reportable Event" shall mean any reportable event as defined
in Section 4043(b) of ERISA, other than a reportable event as to which provision
for 30-day notice to the PBGC has been waived under applicable regulations
(including subsections .13, .14, .16, .18, .19 or .20 of PBGC Reg. Section
2615).
"Responsible Officer" of any Person shall mean any executive
officer or the chief financial officer of such a Person.
"Restricted Payment" shall have the meaning given to such term
in Section 7.3 hereof.
"Revolving Credit Commitment" shall mean, at any time,
$60,000,000 less any reductions made in accordance with Section 2.9.
"Revolving Credit Note" shall mean each Revolving Credit Note
in substantially the form of Exhibit G and delivered by the Borrower to the
Banks in accordance with Section 2.2.
"Revolving Loan" shall mean any Loan made by a Bank to the
Borrower in accordance with Section 2.2.
"Sale and Leaseback Transaction" shall mean any arrangement
whereby a Person sells or transfers real or personal property, and thereafter
rents or leases such property to be used for substantially the same purpose or
purposes as the property was used prior to such sale or transfer.
"Scheduled Repayment Date" shall have the meaning given to
such term in Section 2.7.
"Scheduled Payment" shall have the meaning given to such term
in Section 2.7.
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"Single Employer Plan" shall mean a Plan described in Section
4001(a)(15) of ERISA.
"Statutory Reserves" shall mean a fraction (expressed as a
decimal), the numerator of which is the number one and the denominator of which
is the number one minus the aggregate of the maximum reserve percentages
(including any marginal, special, emergency or supplemental reserves), expressed
as a decimal, established by the Board and any other banking authority to which
each of the Co-Agents is subject (a) with respect to the Base CD Rate (as such
term is used in the definition of "Alternate Base Rate"), for new negotiable
nonpersonal time deposits in dollars of over $100,000 with maturities
approximately equal to three months and (b) with respect to the Adjusted LIBO
Rate, for Eurocurrency Liabilities (as defined in Regulation D of the Board).
Such reserve percentages shall include those imposed pursuant to such Regulation
D. Eurodollar Loans shall be deemed to constitute Eurocurrency Liabilities and
to be subject to such reserve requirements as Eurocurrency Liabilities are from
time to time subject without benefit of or credit for proration, exemptions or
offsets which may be available from time to time to any Bank under such
Regulation D. Statutory Reserves shall be adjusted automatically on and as of
the effective date of any change in any reserve percentage.
"Subsidiary" shall mean, at any time, any Person (other than
an Excluded Subsidiary) (a) of which more than 50% of the shares of stock
entitled to vote in the election of directors (excluding shares entitled to vote
only upon the failure to pay dividends thereon or other contingencies) are at
the time owned directly or indirectly through one or more Subsidiaries, by
Holdings (including, without limitation, the Borrower and Celite) or (b) (i) of
which at least 25% of the shares of stock entitled to vote in the election of
directors (excluding shares entitled to vote only upon the failure to pay
dividends thereon or other contingencies) are at the time owned directly or
indirectly through one or more Subsidiaries, by Holdings (including, without
limitation, the Borrower and Celite) and (ii) who is under the Control of
Holdings.
"Taxes" shall have the meaning given to such term in Section
2.18(a).
"Term Loan" shall mean the Term Loans made by the Banks to the
Borrower on the Amendment Closing Date in accordance with Section 2.1.
"Term Loan Commitment" shall mean $57,000,000.
"Term Loan Note" shall mean each Term Loan Note in the form of
Exhibit H being delivered by the Borrower to each Bank at the Closing in
accordance with Section 2.1.
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"Third Party Financing" shall mean any funds which are (a)
obtained from sources other than (i) Parent Contributions or (ii) Loans made
pursuant to this Agreement and (b) used by Holdings or any of its Subsidiaries
to effect a Permitted Acquisition in accordance with the terms and conditions of
Section 7.7 hereof.
"Three-Month Secondary CD Rate" shall mean, for any day, the
secondary market rate for three-month certificates of deposit reported as being
in effect on such day (or, if such day shall not be a Business Day, the
immediately preceding Business Day) by the Board through the public information
telephone line of the Federal Reserve Bank of New York (which rate will, under
the current practices of the Board, be published in Federal Reserve Statistical
Release H.15(519) during the week following such day), or, if such rate shall
not be so reported on such day or such next preceding Business Day, the average
of the secondary market quotations for three-month certificates of deposit of
major money center banks in New York City received at approximately 10:00 a.m.,
New York City time, on such day (or, if such day shall not be a Business Day, on
the next preceding Business Day) by the Administrative Agent from three New York
City negotiable certificate of deposit dealers of recognized standing selected
by it.
"Total Capitalization" shall be calculated on a consolidated
basis for Holdings and its Subsidiaries and shall mean, at any time, (i) the sum
of (A) capital stock taken at par value, (B) capital surplus and (C) retained
earnings at such date less (ii) treasury stock plus (iii) Total Indebtedness, in
each case computed in accordance with GAAP.
"Total Indebtedness" shall mean, at any time, the aggregate
amount of Indebtedness of Holdings and its Subsidiaries on a consolidated basis,
computed in accordance with GAAP.
"Working Capital" shall, unless otherwise provided herein, be
calculated on a consolidated basis for Holdings and its Subsidiaries and shall
mean, at any time, the excess of the current assets (other than cash and cash
equivalents) of Holdings and its Subsidiaries over the current liabilities
(other than Indebtedness) of Holdings and the Subsidiaries, in each case
computed in accordance with GAAP.
SECTION 1.2. Terms Generally. The definitions in Section 1.1
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation."
All references herein to Articles, Sections, Exhibits and Schedules shall be
deemed references to Articles and
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Sections of, and Exhibits and Schedules to, this Agreement unless the context
shall otherwise require.
SECTION 1.3. Accounting Terms, GAAP. Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP, consistently applied, and all financial
statements or accounting determinations required herein to be prepared or made
in accordance with GAAP shall be prepared or made in accordance with GAAP
applied on a consistent basis. In the event of any change in GAAP or
announcement by the Financial Accounting Standards Board (the "FASB") of the
effective date of any change in GAAP, which change could reasonably be expected
to materially affect the Borrower's compliance with Sections 7.11 through 7.13
or any definition of a financial term used herein, each of the Borrower and the
Administrative Agent shall have the right by written notice to the other to
require such other party to negotiate in good faith for a period of thirty (30)
days with respect to amending such Sections or definitions appropriately to take
account of such change, without liability to either party in the event an
agreement is not reached with respect to any such amendment; provided, however,
that such 30-day period shall not extend beyond the effective date of any change
except to the extent that such effective date was announced by the FASB less
than thirty (30) days in advance of such effective date. Notwithstanding the
foregoing, all calculations required under Sections 7.11 through 7.13 hereof
shall be made in accordance with GAAP in effect as of the Closing Date, unless
and until such Sections shall have been modified in accordance with the
preceding sentence.
ARTICLE II
THE LOANS
SECTION 2.1. Term Loans; Conversion of Outstanding Loans. (a)
Subject to the terms and conditions contained herein, on the Closing Date, all
outstanding Loans under the Existing Facility shall be converted, without
further action by the Borrower and without penalty for breakage or similar
costs, into one Term Loan from each Bank in an aggregate amount equal to such
Bank's Pro Rata Share of the lesser of (i) the aggregate amount of Loans
outstanding immediately prior to the effectiveness of this Agreement and (ii)
the Term Loan Commitment. All Term Loans to be made on the Closing Date shall be
Eurodollar Loans with initial Interest Periods of three months. No Term Loans
will be made by the Banks after the Closing Date (other than continuations or
conversions in the manner provided in Section 2.12).
(b) On the Closing Date, the Borrower shall execute
and deliver to each Bank, a Term Loan Note in a principal
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amount equal to such Bank's Pro Rata Share of the Term Loan Commitment. Such
Term Loan Note shall be dated March 10, 1995, and shall mature on the Final
Maturity Date subject to the acceleration provisions contained therein. Each
Bank shall record the date and amount of each payment made by the Borrower with
respect to such Term Loan Note and each Bank's records shall be conclusive
absent manifest error; provided, however, that the failure of any Bank to make
such a notation or any error on a Term Loan Note shall not affect the obligation
of the Borrower to repay, in accordance with the terms of each Term Loan Note,
the Term Loans made by the Banks hereunder.
(c) On the Closing Date, each Bank shall deliver to
the Borrower the note or notes delivered by the Borrower to such Bank in
connection with the Existing Facility.
SECTION 2.2. Making of Revolving Loans. (a) Subject to the
terms and conditions contained herein, each Bank severally agrees to make
Revolving Loans to the Borrower from time to time during the period from the
date hereof to the Final Maturity Date (or upon the earlier termination of the
Revolving Credit Commitment in accordance with the provisions hereof) in an
amount not to exceed, in the aggregate at any one time outstanding, such Bank's
Pro Rata Share of (i) the Revolving Credit Commitment on such date less (ii) the
Letter of Credit Exposure. Each Loan shall be made to the Borrower by each Bank
in accordance with its Pro Rata Share of the then applicable Revolving Credit
Commitment as provided in clause (c) below. Except as expressly provided in
Section 3.3, Revolving Loans requested hereunder by the Borrower on any date
shall be in a minimum principal amount of $1,000,000 and in integral multiples
of $500,000.
(b) Each Loan shall be either an ABR Loan or a
Eurodollar Loan as the Borrower may request in accordance with Section 2.3
hereof. Revolving Loans of more than one type may be outstanding at the same
time. Each Bank may, at its option, fulfill its Pro Rata Share with respect to
any Eurodollar Loan by causing a Lending Office of such Bank to make such
Revolving Loan; provided, however, that any exercise of such option shall not
affect the obligation of the Borrower to repay such Revolving Loan in accordance
with the terms of this Agreement.
(c) Each Bank shall advance its portion of each Loan
hereunder on the proposed date thereof by paying the required amount to the
Administrative Agent in New York, New York, in immediately available funds not
later than 12:00 noon, New York City time on the date of such Loan. The
Administrative Agent shall, by 3:00 p.m., New York City time on such date,
credit the amount so received to the general deposit account maintained by the
Borrower with the Administrative Agent. If a Loan is not made on any date
requested by the Borrower because any condition precedent to such Loan hereunder
shall not have been met or for any other reason, the Administrative Agent shall
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promptly return to each Bank which has advanced funds to the Administrative
Agent any amounts so transferred.
(d) On the Closing Date, the Borrower shall execute
and deliver to each Bank, a Revolving Credit Note in a principal amount equal to
such Bank's Pro Rata Share of the Revolving Credit Commitment. Each such
Revolving Credit Note shall be dated the Closing Date and shall mature on the
Final Maturity Date subject to the acceleration provisions contained therein.
Each Bank shall record the date and amount of each Revolving Loan made by such
Bank to the Borrower hereunder and of each prepayment made by the Borrower with
respect to such Revolving Loan and each Bank's records shall be conclusive
absent manifest error; provided, however, that the failure of any Bank to make
such a notation or any error on a Revolving Credit Note shall not affect the
obligation of the Borrower to repay, in accordance with the terms of each
Revolving Credit Note, the Revolving Loans made by the Banks hereunder.
(e) During the period from the date hereof to the
Final Maturity Date, the Borrower may borrow, pay, prepay and reborrow Revolving
Loans hereunder subject to the terms and conditions of this Agreement (including
the provisions regarding prepayment set forth in Sections 2.9 and 2.11 hereof).
SECTION 2.3. Notice of Loans. (a) In order to request a
Revolving Loan hereunder, the Borrower shall, except as otherwise expressly
provided in Section 3.3, give the Administrative Agent irrevocable written,
telegraphic or telex notice (i) not later than 12:00 noon, New York City time,
one Business Day before such Revolving Loan is to be made if such Revolving Loan
is to be an ABR Loan and (ii) not later than 10:00 a.m., New York City time,
three Business Days before such Revolving Loan is to be made if such Revolving
Loan is to be a Eurodollar Loan. Such notice shall specify (A) whether the
Revolving Loan then being requested is to be an ABR Loan or a Eurodollar Loan,
(B) the date of the proposed borrowing and amount thereof and (C) if such
Revolving Loan is to be a Eurodollar Loan, the Interest Period with respect
thereto. If no election as to the type of Revolving Loan is specified in such
notice, the Revolving Loan shall be an ABR Loan. If no Interest Period with
respect to any Eurodollar Loan is specified in any such notice, then the
Borrower shall be deemed to have selected an Interest Period of one month's
duration. A notice requesting a Eurodollar Loan may condition such request upon
an Adjusted LIBO Rate being less than a specified rate. If the Administrative
Agent determines that the Adjusted LIBO Rate will exceed the maximum specified
by the Borrower, the Administrative Agent shall promptly notify the Borrower and
such request shall be deemed a request for an ABR Loan.
(b) The Borrower may continue any Eurodollar Loan or
convert all or any part of any ABR Loan or Eurodollar Loan
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into a Loan of a different type, in each case in accordance with Section 2.12
hereof and subject to the limitations set forth therein.
(c) The Borrower shall not request from the
Administrative Agent more than 6 new Eurodollar Loans or conversions to
Eurodollar Loans from ABR Loans in any one calendar month.
SECTION 2.4. Interest. (a) In the case of an ABR Loan,
interest shall be payable at a variable rate per annum (calculated on the basis
of the actual number of days elapsed over a year of 360 days during any period
that the Alternative Base Rate is determined based upon the Base CD Rate or the
Federal Funds Effective Rate and, at all other times, 365 or 366 days, as the
case may be) equal to the Alternate Base Rate. Interest will be payable on each
ABR Loan on each applicable Interest Payment Date.
(b) Subject to Section 2.4(c) below, in the case of a
Eurodollar Loan, interest shall be payable at a variable rate per annum
(calculated on the basis of the actual number of days elapsed over a year of 360
days) equal to the Adjusted LIBO Rate, plus the Eurodollar Margin determined in
accordance with Section 2.4(c). Interest will be payable on each Eurodollar Loan
on each applicable Interest Payment Date. The Administrative Agent shall
determine the applicable Adjusted LIBO Rate for each Interest Period as soon as
practicable after 10:00 a.m., New York City time, two Business Days prior to the
commencement of such Interest Period and shall notify the Borrower of the
Adjusted LIBO Rate so determined. Such determination shall be conclusive absent
manifest error.
(c) The Eurodollar Margin for the period commencing
on January 17, 1995, and ending on March 31, 1995, shall be .625%. Within 60
days (75 days in the case of the fourth fiscal quarter of each Fiscal Year)
after the end of each fiscal quarter of each Fiscal Year prior to the Final
Maturity Date commencing on the fiscal quarter ending December 31, 1994, the
Borrower shall deliver to the Administrative Agent a certificate (a "Rate
Certificate") setting forth the Borrower's calculation, certified as to accuracy
by a Financial Officer of the Borrower, of the ratio of Total Indebtedness as of
the last day of such fiscal quarter to EBITDA for the four-fiscal-quarter period
ending on such fiscal quarter (the "Cash Flow Ratio"). If the Administrative
Agent determines that the Rate Certificate is accurate, then the Eurodollar
Margin shall be the rate (the "Eurodollar Margin") set forth in the table below
opposite the applicable range for such Cash Flow Ratio:
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Cash Flow Ratio Eurodollar Margin
--------------- -----------------
Greater than 2.25x .75%
1.5x to 2.25x .625%
Less than 1.5x .50%
Any change in the Eurodollar Margin following the delivery of a Rate Certificate
in accordance with this Section 2.4(c) shall become effective with respect to
all Eurodollar Loans and Letters of Credit outstanding hereunder on the first
day of the fiscal quarter immediately following the fiscal quarter in which the
Rate Certificate is delivered.
SECTION 2.5. Alternative Rate of Interest. In the event, and
on each occasion, that on the date two Business Days prior to the commencement
of any Interest Period for any Eurodollar Loan, any Bank shall have determined
(which determination shall be conclusive and binding upon the Borrower) that
dollar deposits in the unpaid principal amount of such Eurodollar Loan are not
generally available in the London interbank market, or that the rate at which
such dollar deposits are being offered will not adequately and fairly reflect
the cost to such Bank of making or maintaining the principal amount of such
Eurodollar Loan during such Interest Period, such Bank shall promptly give
written, telegraphic or telex notice of such determination to the Borrower and
the other Banks. In such event the Borrower and the Bank giving notice may agree
on a substitute rate of interest. For one Business Day after receipt of such
notice, the Borrower shall have the right to withdraw its request pursuant to
Section 2.2 for a Eurodollar Loan by written, telegraphic or telex notice to the
Administrative Agent. If the Borrower and the Bank giving notice have not agreed
on a substitute rate of interest, any request by the Borrower to make, convert
to or maintain a Eurodollar Loan pursuant to Section 2.2 (unless withdrawn as
provided above) or 2.12, as applicable, shall be deemed a request for an ABR
Loan in respect of any Bank giving such notice. After such notice shall have
been given and until the circumstances giving rise to such notice no longer
exist or until the Borrower and any Bank giving notice agree on a substitute
rate of interest, each request for a Eurodollar Loan shall be deemed to be a
request for an ABR Loan in respect of any Bank giving such notice. Each
determination by a Bank hereunder shall be conclusive absent manifest error. Any
Bank giving notice as described above shall notify the Borrower at such time as
the circumstances giving rise to such notice no longer exist.
SECTION 2.6. Interest on Overdue Amounts. If the Borrower
defaults in the payment of the principal of or interest on any Loan or any other
amount due hereunder, the Borrower shall, on demand from time to time, pay
interest to the extent permitted by law on such defaulted amount up to (but not
including) the date of actual payment (after as well as before judgment) at a
rate per annum (calculated on the basis of the
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actual number of days elapsed over a year of 365 or 366 days, as the case may
be) equal to the Alternate Base Rate plus two percent (2%) per annum.
SECTION 2.7. Scheduled Amortization of Term Loans. (a) On the
last Business Day of each month set forth below (each, a "Scheduled Repayment
Date"), the Borrower shall pay to the Administrative Agent, for the account of
the Banks, for application against the aggregate amount of Term Loans
outstanding, the principal amount (each, a "Scheduled Payment") set forth
opposite such Scheduled Repayment Date in the table below:
Scheduled Scheduled
Repayment Date Payment
-------------- -------
June, 1995 $1 million
December, 1995 4 million
June, 1996 5 million
December, 1996 5 million
June, 1997 6 million
December, 1997 6 million
June, 1998 7 million
December, 1998 7 million
June, 1999 8 million
December, 1999 8 million
(b) Any payment made in accordance with clause (a)
above shall (i) be applied by the Banks to reduce the aggregate amount of the
Term Loans outstanding under the Facility on the date of such payment and shall
be applied first to ABR Loans and thereafter to outstanding Eurodollar Loans in
the order of expiration of their respective Interest Periods, (ii) include (and
may be increased by) accrued but unpaid interest on the principal amount of the
Term Loans being repaid on such date and any other required charges due to the
Banks under Section 2.11 and (iii) be distributed ratably to the Banks in
accordance with their respective Pro Rata Shares.
SECTION 2.8. Mandatory Prepayments. (a) In connection with the
consummation of any Asset Sale, the Borrower shall prepay Loans by making a
payment to the Administrative Agent, on behalf of the Banks, in an amount equal
to 100% of the Net Proceeds of such Asset Sale; provided, however, that the
Borrower will be entitled to retain during each Fiscal Year for its own use, the
first $1,000,000, on a cumulative basis, of the Net Proceeds from Asset Sales
occurring during such Fiscal Year. Any prepayment under this Section 2.8 shall
be made on the (i) the thirtieth day following the consummation of such Asset
Sale or (ii) if the cash consideration in such sale is to be received in
installments, upon the earlier of the receipt of such cash consideration or the
date when such cash consideration or portion thereof is due.
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(b) Any payment by the Borrower in accordance with
clause (a) above (each, a "Mandatory Prepayment") shall be applied ratably to
all remaining Scheduled Payments and shall be applied first to ABR Loans and
thereafter to outstanding Eurodollar Loans in the order of expiration of their
respective Interest Periods. Each Mandatory Prepayment must be accompanied by
(i) accrued interest and any other required charges on the amount prepaid
(including any payments required by Section 2.11 hereof) and (ii) a certificate
of a Financial Officer of the Borrower setting forth the calculation of such
Mandatory Prepayment. Mandatory Prepayments shall be distributed ratably to the
Banks in accordance with their respective Pro Rata Shares.
SECTION 2.9. Reduction of Revolving Loan Commitment. (a) Upon
at least two Business Days prior written, telegraphic or telex notice to the
Administrative Agent and subject to the limitations set forth in paragraph (d)
below, the Borrower may at any time permanently terminate, or from time to time
permanently reduce, the Revolving Credit Commitment in effect at such time. Each
such reduction of the Revolving Credit Commitment shall be in a minimum
principal amount of $1,000,000 or an integral multiple thereof and shall reduce,
on a dollar for dollar basis, the aggregate Revolving Credit Commitment of the
Banks in effect on such date.
(b) If on any date that the Revolving Credit
Commitment is reduced in accordance with paragraph (a) above the sum of (i) the
aggregate amount of Revolving Credit Loans outstanding under the Facility plus
(ii) the aggregate amount of the Letter of Credit Exposure at such time exceeds
the Revolving Credit Commitment as so reduced, then simultaneously with, and as
a condition to such reduction, the Borrower shall prepay Revolving Loans by
making a payment to the Administrative Agent, on behalf of the Banks, in an
amount equal to such excess so that, after giving effect to such payment, the
aggregate outstanding principal amount of all Revolving Loans plus the aggregate
amount of the Letter of Credit Exposure at such time does not exceed the
Revolving Credit Commitment as so reduced.
(c) Any reduction of the Revolving Credit Commitment
in accordance with clause (a) above shall be accompanied (i) by payment of the
accrued Commitment Fee on the amount of the reduction, (ii) in the event that
the Revolving Credit Commitment is being terminated, by payment to the
Administrative Agent in accordance with Section 3.3(d) hereof and for the
benefit of the Banks, of an amount equal to the aggregate Letter of Credit
Exposure and (iii) include any other required charges on the amount prepaid
(including any payments required by Section 2.11 hereof).
(d) All amounts paid by the Borrower under this
Section 2.9 shall be made ratably to each Bank in accordance with its respective
Pro Rata Share.
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SECTION 2.10. Optional Prepayments of Term Loans. (a) The
Borrower shall have the right at any time and from time to time to prepay the
Term Loans, in whole or in part, without premium or penalty, upon at least one
Business Day's prior written, telegraphic or telex notice to the Administrative
Agent; provided, however, that (A) any partial prepayment shall be in a minimum
principal amount of $500,000 or an integral multiple thereof, (B) all
prepayments shall be made ratably to the Banks in accordance with their
respective Pro Rata Shares, (C) all prepayments shall be accompanied by interest
accrued to the date of prepayment on the principal amount of the Term Loans
being prepaid, and (D) all prepayments shall be applied (i) to prepay the next
two Scheduled Payments in order of maturity and (ii) ratably against all
remaining Scheduled Payments.
(b) Each notice of prepayment shall specify the
prepayment date and the principal amount of the Term Loans to be prepaid, shall
be irrevocable and shall commit the Borrower to prepay the Term Loans by the
amount stated therein.
(c) Subject to the limitations set forth in clause
(a) above, if on the date of any such payment, the Term Loans include both ABR
Loans and/or Eurodollar Loans, the notice given to the Administrative Agent
shall specify the extent to which such payment is to be applied against such ABR
Loans and/or Eurodollar Loans. If on the date of any such payment the Term Loans
include more than one Eurodollar Loan, such notice shall specify the Eurodollar
Loans against which such payment is to be applied. To the extent not otherwise
specified, each such payment shall be applied first against any outstanding ABR
Loans and next, after all such ABR Loans have been repaid, to any Eurodollar
Loans in order of expiration of their respective Interest Periods.
SECTION 2.11. Redeployment Cost. The Borrower shall reimburse
each Bank for any loss incurred or to be incurred by it in the redeployment of
the funds released as a result of (A) any Scheduled Payment applied to any
Eurodollar Loan pursuant to Section 2.7 hereof on any date prior to the last day
of the Interest Period applicable to such Loan, (B) any prepayment or payment of
any Eurodollar Loan pursuant to Section 2.8 hereof in whole or in part on a date
prior to the last day of an Interest Period for such Eurodollar Loan, (C) any
prepayment or payment of any Eurodollar Loan by reason of acceleration of the
indebtedness due hereunder on the occurrence of an Event of Default as set forth
in Article VIII hereof, (D) any failure or refusal of the Borrower to accept (or
to meet the conditions precedent for) any Eurodollar Loan as to which notice was
given by the Borrower hereunder, (E) repayment of any Revolving Loans which are
Eurodollar Loans in connection with a reduction of the Revolving Credit
Commitment in accordance with Section 2.9 or (F) automatic conversions pursuant
to Section 2.12. Such loss shall be the difference, reasonably determined by
such Bank, between the cost
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of obtaining the funds for the Loan being prepaid or refused and any lesser
amount realized by such Bank in redeploying such funds during the period from
the date of prepayment or refusal to the end of the Interest Period of the
Eurodollar Loan being repaid or the Interest Period specified in the notice
given by the Borrower, as the case may be; provided, however, that such loss
shall not include any loss, damage or expense resulting from the failure of any
Person to whom any such funds are loaned to timely and duly repay the same, or
from any other default or nonperformance of such Person's obligations. Upon the
occurrence of any event set forth in clauses (A) through (F) above, the
Administrative Agent shall deliver to the Borrower a certificate setting forth
any amount or amounts which each Bank is entitled to receive pursuant to this
Section 2.11 and reasonable supporting calculations therefor. Such certificate
shall be conclusive absent manifest error. Within 20 days after receipt, the
Borrower shall pay the Administrative Agent, on behalf of the Banks, all amounts
set forth therein. Without prejudice to the survival of any other agreement
contained herein, the agreements and obligations contained in this Section 2.11
shall survive the payment in full of principal and interest hereunder.
SECTION 2.12. Conversion and Continuation of Borrowings. The
Borrower shall have the right, at any time, with at least three Business Days'
prior irrevocable written, telegraphic or telex notice to the Administrative
Agent, (a) to continue any Loan or portion thereof into a subsequent Interest
Period, or (b) to convert any type of Loan or portion thereof into a Loan of a
different type, subject to the following:
(i) no Default shall have occurred and be continuing
at the time of such continuation or conversion and, with respect to
Eurodollar Loans, no notice described in Section 2.5 or 2.14 (which
shall not have been rescinded) shall have been given by the Bank from
which the Eurodollar Loan is requested;
(ii) each conversion shall be effected by the Banks
applying the proceeds of the new Loan to the Loan (or portion thereof)
being converted;
(iii) if the new Loan made in respect of the
conversion shall be a Eurodollar Loan, the first Interest Period with
respect thereto shall commence on the date of conversion;
(iv) each request for a Eurodollar Loan, conversion
or for a continuation thereof which shall fail to state the applicable
Interest Period shall be for one month's duration;
(v) no more than a total of 6 new Eurodollar Loans
or conversions to Eurodollar Loans from ABR Loans
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may be requested from the Banks by all of the Borrower
in any one calendar month; and
(vi) each request for conversion of an ABR Loan to a
Eurodollar Loan hereunder shall be in the principal amount of at least
$500,000.
In the event that the Borrower shall not give notice to continue any Eurodollar
Loan, such Loan (unless repaid) shall automatically become an ABR Loan at the
expiration of the then current Interest Period. The Borrower may condition any
request to any Bank for conversion to or maintenance of a Eurodollar Loan upon a
maximum Adjusted LIBO Rate; provided, however, that if such Bank determines that
the Adjusted LIBO Rate will exceed such maximum specified by the Borrower, such
Bank shall so notify the Borrower and such request shall be deemed a request for
an ABR Loan.
SECTION 2.13. Increased Costs. (a) Subject to compliance with
subsections (d) and (e) below, if after the date of this Agreement any change in
Applicable Law or in the interpretation or administration thereof by any
Governmental Authority charged with the interpretation or administration thereof
(whether or not having the force of law) shall change the basis of taxation of
payments to any Bank of the principal of or interest on any Eurodollar Loan or
any other fees or amounts payable hereunder (other than Taxes), or shall impose,
modify or deem applicable any reserve, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit extended by,
such Bank or shall impose on such Bank or the London interbank market any other
condition affecting this Agreement or the Eurodollar Loans, and the result of
any of the foregoing shall be to increase the cost to such Bank of making or
maintaining any Eurodollar Loan or to reduce the amount of any sum received or
receivable by such Bank hereunder (whether of principal, interest or otherwise)
in respect thereof, by an amount deemed by such Bank to be material, then (to
the extent the amount is not included in the computation of the Adjusted LIBO
Rate) the Borrower shall pay to such Bank, upon such Bank's demand, such
additional amount or amounts as will compensate such Bank for such additional
costs or reduction.
(b) Subject to compliance with subsections (d) and
(e) below, if any Bank shall have determined that the adoption after the date
hereof of any law, rule, regulation, agreement or guideline regarding capital
adequacy, or any change in any of the foregoing or in the interpretation or
administration of any of the foregoing by any Governmental Authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any Bank (or any Lending Office of such Bank) or any
Bank's holding company with any request or directive regarding capital adequacy
(whether or not having the force of law) of any such Governmental
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Authority, central bank or comparable agency, has or would have the effect of
reducing the rate of return on such Bank's capital or on the capital of such
Bank's holding company, if any, as a consequence of this Agreement or the Loans
made by such Bank pursuant hereto to a level below that which such Bank or such
Bank's holding company could have achieved but for such adoption, change or
compliance (taking into consideration such Bank's policies and the policies of
such Bank's holding company with respect to capital adequacy) by an amount
deemed by such Bank to be material, then from time to time, after submission by
such Bank to the Borrower of a written request therefor, the Borrower shall pay
to such Bank such additional amount or amounts as will compensate such Bank or
such Bank's holding company for any such reduction suffered.
(c) A certificate of each Bank setting forth such
amount or amounts and the basis for determination from time to time of such
amount or amounts as shall be necessary to compensate such Bank or its holding
company as specified in paragraph (a) or (b) above, as the case may be, shall be
delivered to the Borrower and shall be conclusive absent manifest error. The
Borrower shall pay each Bank the amount shown as due on any such certificate
delivered by it within 10 days after their receipt of the same.
(d) Failure on the part of any Bank to demand
compensation for any increased costs or reduction in amounts received or
receivable or reduction in return on capital with respect to any period shall
not constitute a waiver of such Bank's right to demand compensation with respect
to such period, except that no Bank shall be entitled to compensation under this
Section 2.13 for any costs incurred or reduction suffered with respect to any
date unless such Bank shall have notified the Borrower that it will demand
compensation for such costs or reductions not more than nine months after the
later of (i) such date and (ii) the date on which such Bank shall have become
aware of such costs or reductions. The protection of this Section 2.13 shall be
available to each Bank regardless of any possible contention of the invalidity
or inapplicability of the law, rule, regulation, guideline or other change or
condition which shall have occurred or been imposed.
(e) Any Bank claiming any additional amounts payable
pursuant to this Section 2.13 shall use reasonable efforts (consistent with
legal and regulatory restrictions and such Bank's internal policies) to file any
certificate or document requested by the Borrower or change its applicable
Lending Office to another of its offices, branches or Affiliates, if the making
of such filing or change of Lending Office would avoid the need for or reduce
the amount of any such additional amount attributable to the Loans and would
not, in the sole determination of such Bank, result in any unreimbursed loss,
cost or expense or otherwise be disadvantageous to such Bank.
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(f) Without prejudice to the survival of any other
agreement contained herein, the agreements and obligations contained in this
Section 2.13 shall survive the payment in full of principal and interest
hereunder.
SECTION 2.14. Change in Legality. (a) Notwithstanding any
other provision herein, if any change in any law or regulation or in the
interpretation thereof by any Governmental Authority charged with the
administration or interpretation thereof shall make it unlawful for any Bank to
make or maintain any Eurodollar Loan or to give effect to its obligations as
contemplated hereby then, by written notice to the Borrower and to the other
Banks, (i) such Bank may require payment (together with accrued interest to the
date of payment) of all outstanding Eurodollar Loans due to it hereunder,
whereupon all such Eurodollar Loans then outstanding shall be automatically
converted to an ABR Loan, subject to Sections 2.11 and 2.12, as of the effective
date of such notice as provided in paragraph (b) below, (ii) the obligation of
such Bank to continue or convert to Eurodollar Loans shall terminate immediately
and (iii) each subsequent request to such Bank for a Eurodollar Loan shall be
deemed to be a request for an ABR Loan. Any Bank giving such notice shall (A)
use reasonable efforts (consistent with legal and regulatory restrictions and
such Bank's internal policies) to change its applicable Lending Office to
another of its offices, branches or Affiliates, if such change of Lending Office
would permit such Bank to make Eurodollar Loans and would not, in the sole
determination of such Bank, result in any unreimbursed loss, cost or expense or
otherwise be disadvantageous to such Bank and (B) notify the Administrative
Agent and the Borrower at such time as the circumstances giving rise to its
notice shall cease to exist. If the Borrower shall be prohibited from incurring,
continuing or converting to a Eurodollar Loan from any Bank, Eurodollar Loans
shall be made, continued or converted by the other Banks pro rata in accordance
with their respective Pro Rata Share of the Aggregate Commitment.
(b) For purposes of Section 2.14(a)(i), a notice to
the Borrower by any Bank shall be effective, if lawful, and if any Eurodollar
Loans shall then be outstanding, on the last day of the then current Interest
Period or, if there is more than one current Interest Period, on the last day of
each such Interest Period, respectively; otherwise, such notice shall be
effective on the date of receipt by the Borrower.
SECTION 2.15. Pro Rata Treatment. Except as required under
Section 2.14, each Loan, each payment or prepayment of principal of any Loan,
each payment of interest on any Loan and each conversion of any Loan or
continuation of any Loan as a Loan of any type shall be allocated pro rata among
each Bank in accordance with its respective Pro Rata Share. Each Bank agrees
that in computing such Bank's portion of any Loan or any payment, prepayment,
interest payment, conversion or continuation with
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respect thereto, the Administrative Agent may, in its sole discretion, round the
dollar amount of such Bank's pro rata portion to the next higher or lower whole
dollar amount.
SECTION 2.16. Sharing of Setoffs. (a) Each Bank agrees that
if, through the exercise of a right of banker's lien, set-off or counterclaim
against the Borrower, the unpaid portion of the Loans made by it is
proportionately less than the unpaid portion of the Loans made by any other Bank
(i) it shall simultaneously purchase from such other Bank a participation in the
Loans made by such other Bank, so that the aggregate unpaid principal amount of
all Loans and participations in Loans made by each Bank shall be in the same
proportion to the aggregate unpaid principal amounts of all Loans then
outstanding as the principal amount of such Loans made by it prior to such
exercise of banker's lien, set-off or counterclaim and (ii) such other
adjustments shall be made from time to time as shall be equitable to ensure that
all the Banks share such payment pro rata; provided, however, that if any such
purchase or purchases shall be made pursuant to clause (i) above and the payment
giving rise thereto shall be recovered, such purchase or purchases shall be
rescinded to the extent of such recovery and the purchase price or prices
restored without interest.
(b) If an Event of Default shall have occurred and be
continuing, each Bank is hereby authorized at any time and from time to time to
the fullest extent permitted by law, to set-off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by such Bank to or for the credit or the
account of the Borrower against any of and all the obligations of the Borrower
now or hereafter existing under this Agreement and other Loan Documents held by
such Bank, irrespective of whether or not such Bank shall have made any demand
under this Agreement or such other Loan Document and although such obligations
may be unmatured. The rights of each Bank under this Section 2.16(b) are in
addition to other rights and remedies (including other rights of set-off) which
such Bank may have.
SECTION 2.17. Payments. (a) The Borrower shall make each
payment in respect of the principal of or accrued interest on any Loan, Fee,
Reimbursement Obligation, LC Fee or other amount due to the Administrative
Agent, any Co-Agent or any Bank under this Agreement or any other Loan Document,
not later than 1:00 p.m, New York City time, on the day when due, to the
Administrative Agent at its offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, for the account of such Bank. All payments hereunder shall be made in
United States Dollars in federal or other immediately available funds.
(b) This transaction is an international loan
transaction in which the specification of Dollars is of the
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essence, and Dollars shall be the currency of account and of payment in all
events. The payment obligations of the Borrower shall not be discharged by an
amount paid in another currency, whether pursuant to a judgment or otherwise, to
the extent that the amount so paid on prompt conversion to Dollars under normal
banking procedures shall not yield the amount of Dollars due hereunder. In the
event that any payment made in a currency other than Dollars, whether pursuant
to a judgment or otherwise, upon conversion shall not yield such amount of
Dollars, each Bank shall be entitled to demand immediate payment of, and shall
have a separate cause of action for, such Dollar deficiency.
(c) Whenever any payment (including principal of or
interest on any Loan or any Fee or other amount) hereunder or under any other
Loan Document shall become due, or otherwise would occur, on a day that is not a
Business Day, such payment may be made on the next succeeding Business Day, and
such extension of time shall in such case be included in the computation of such
interest, Fee or other amount, if applicable; provided, however, that, in the
case of any Eurodollar Loan, if such next succeeding Business Day would fall in
the next calendar month, such payment shall be made on the first preceding
Business Day.
SECTION 2.18. Taxes. (a) Subject to compliance with Section
2.18(f), any and all payments by the Borrower in respect of principal or accrued
interest on any Loan, Fee, Reimbursement Obligation or other amount due to the
Administrative Agent, any Co-Agent or any Bank under this Agreement or by a
Guarantor pursuant to the Holdings Guaranty or the Celite Guaranty Agreement
shall be made, in accordance with Section 2.17, free and clear of and without
deduction for any and all present or future taxes, levies, imposts, deductions,
charges or withholdings, and all liabilities with respect thereto so long as the
recipient thereof is a corporation created or organized under the laws of the
United States or any State or is otherwise a resident of the United States (and
is taxed as such on such income) for purposes of the Code (excluding taxes
imposed on the Administrative Agent's or any Bank's overall net income and
franchise taxes imposed on the Administrative Agent or any Bank by the
jurisdiction of such Bank's Lending Office or any political subdivision
thereof), including withholding taxes relating to United States income taxes or
any jurisdiction under the laws of which the Borrower is organized or any
political subdivision thereof (all such nonexcluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities being referred to herein as
"Taxes"). Subject to Section 2.18(f), if the Borrower shall be required by law
to deduct any Taxes from or in respect of any sum payable hereunder to the Banks
or the Administrative Agent (i) the sum payable shall be increased by the amount
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 2.18) such Bank or the
Administrative Agent (as the
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case may be) shall receive an amount equal to the sum it would have received had
no such deductions been made, (ii) the Borrower shall make such deductions and
(iii) the Borrower shall pay the full amount deducted to the relevant taxing
authority or other Governmental Authority in accordance with Applicable Law.
(b) In addition, the Borrower agrees to pay any
present or future stamp or documentary taxes or any other excise or property
taxes, charges or similar levies which arise from any payment made hereunder or
from the execution, delivery or registration of, or otherwise with respect to,
this Agreement or any other Loan Document (hereinafter referred to as "Other
Taxes").
(c) Subject to compliance with Section 2.18(f), the
Borrower will indemnify each Bank and the Administrative Agent for the full
amount of Taxes (including any Taxes or Other Taxes imposed by any jurisdiction
or amounts payable under this Section 2.18) paid by such Bank or the
Administrative Agent, as the case may be, and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto,
whether or not such Taxes or Other Taxes were correctly or legally asserted.
Such indemnification shall be made within 30 days following the date any Bank or
the Administrative Agent, as the case may be, makes written demand therefor. If
any Bank or the Administrative Agent receives a refund (or a credit against its
taxes due) directly attributable to any Taxes or Other Taxes for which such Bank
or the Administrative Agent has received payment hereunder (or which were paid
directly by the Borrower), it shall repay such refund to the Borrower without
interest promptly after the responsible account officer of such Bank or the
Administrative Agent has notice that such refund was so received.
(d) Within 30 days after the date of any payment of
Taxes or Other Taxes withheld by the Borrower in respect of any payment to any
Bank or the Administrative Agent, the Borrower will furnish to the
Administrative Agent, at its address set forth in Section 10.1, the original or
a certified copy of a receipt evidencing payment thereof.
(e) Without prejudice to the survival of any other
agreement contained herein, the agreements and obligations contained in this
Section 2.18 shall survive the payment in full of principal and interest
hereunder.
(f) Each Bank which is organized under the laws of a
jurisdiction outside the United States shall deliver to the Borrower and the
Administrative Agent, on or before the next date of any payment by the Borrower
hereunder, such certificates, documents or other evidence, as required by the
Code or Treasury Regulations issued pursuant thereto, including Internal Revenue
Service Form 4224 and any other certificate or statement or exemption required
by Treasury Regulation Section 1.1441-1(a) or
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Section 1.1441-6(c) or any subsequent version thereof, properly completed and
duly executed by such Bank establishing that such payment is (i) not subject to
withholding under the Code because such payment is effectively connected with
the conduct by such Bank of a trade or business in the United States or (ii)
totally exempt from United States tax under a provision of an applicable tax
treaty. Unless the Borrower and the Administrative Agent have received forms or
other documents satisfactory to them indicating that payments hereunder or under
the Notes are not subject to United States withholding tax or are subject to
such tax at a rate reduced by an applicable tax treaty, the Administrative Agent
shall withhold taxes from such payments at the applicable statutory rate in the
case of payments to or from any Bank or assignee organized under the laws of a
jurisdiction outside the United States.
(g) Any Bank claiming any additional amounts in
respect of Taxes payable pursuant to this Section 2.18 shall use reasonable
efforts (consistent with legal and regulatory restrictions and such Bank's
internal policies) to file any certificate or document requested by the Borrower
or to change its applicable Lending Office to another of its offices, branches
or Affiliates, if the making of such a filing or change of Lending Office would
avoid the need for or reduce the amount of any such Taxes attributable to the
Loans and would not, in the sole determination of such Bank, result in any
unreimbursed loss, cost or expense or otherwise be disadvantageous to such Bank.
SECTION 2.19. Fees. (a) The Borrower agrees to pay to each
Bank a commitment fee (the "Commitment Fee") from March 10, 1995, to the Final
Maturity Date, calculated at the rate of 1/4 of 1 percent (.25%) per annum on
the average daily unused amount of such Bank's Pro Rata Share of the Revolving
Credit Commitment (less the Letter of Credit Exposure, if any) during the period
for which payment is made. The Commitment Fee shall be payable (i) quarterly on
the last Business Day of each March, June, September and December of each Fiscal
Year and (ii) on any date that the Revolving Credit Commitment is terminated or
reduced as provided herein.
(b) The Borrower shall pay to the Administrative
Agent an annual administration fee as specified in the Fee Letter.
(c) All Fees shall be paid on the date due, in
immediately available funds, to the Administrative Agent for the account of the
applicable Bank. Once paid no Fee shall be refundable under any circumstances.
(d) All Fees shall be calculated on the basis of the
actual number of days elapsed over a year of 360 days.
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ARTICLE III
LETTERS OF CREDIT
SECTION 3.1. Issuance of Letters of Credit. (a) Subject to the
terms and conditions contained herein, the Issuing Bank shall from time to time
issue, on behalf of the Borrower and its Subsidiaries, letters of credit (each,
a "Letter of Credit") to (i) insurance carriers, (ii) Governmental Authorities
in connection with reclamation plans implemented by the Borrower and its
Subsidiaries, (iii) trade creditors to support purchases and sale of materials
and inventory and (iv) other Persons with whom the Borrower and its Subsidiaries
have business dealings for requirements which arise in the ordinary course of
business. The aggregate Letter of Credit Exposure on any date shall not exceed
the lesser of (A) $20,000,000 and (B) the Revolving Credit Commitment less the
sum of (x) the amount of all Revolving Loans then outstanding (or requested in
accordance with Section 2.2 hereof) under the Facility plus (y) the Letter of
Credit Exposure on such date. The aggregate Letter of Credit Exposure for
Letters of Credit issued to Governmental Authorities to satisfy or secure
obligations of the Borrower and its Subsidiaries with respect to workers'
compensation laws shall not exceed $5,000,000 at any time. Each letter of credit
issued under the Existing Facility and listed on Schedule 3.1 which is
outstanding on the Closing Date shall constitute a "Letter of Credit" for all
purposes under this Agreement.
(b) Each Letter of Credit shall be issued pursuant to
and in accordance with a letter of credit application in substantially the form
attached hereto as Exhibit I or Exhibit J or such other application as shall be
acceptable to the Issuing Bank. Each Letter of Credit shall be issued in a
minimum principal amount of $5,000, and shall permit drawings upon the
presentation of one or more sight drafts; provided, however, that no more than
thirty (30) Letters of Credit shall be outstanding at any time. Each Letter of
Credit shall have an expiry which shall be a Business Day and (i) at least two
Business Days prior to the Final Maturity Date and (ii) no later than the first
anniversary of the date such Letter of Credit is issued.
(c) Immediately upon issuance by the Issuing Bank of
a Letter of Credit in accordance herewith, each other Bank shall be deemed to
have irrevocably and unconditionally purchased and received from the Issuing
Bank, without recourse or warranty, an undivided interest and participation in
such Letter of Credit, including all obligations of the Borrower with respect
thereto and any security therefor or guaranty pertaining thereto, in an amount
equal to the product of (i) the Pro Rata Share of such Bank and (ii) the stated
amount of such Letter of Credit. Each issuance of a Letter of Credit by the
Issuing Bank shall be deemed to utilize the Revolving Credit Commitment of each
Bank (other than the Issuing Bank) by an amount equal to the amount of
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such participation and to utilize the Revolving Credit Commitment of the Issuing
Bank by an amount equal to the stated amount of such Letter of Credit less the
aggregate amount of all participations therein.
SECTION 3.2. Notice. The Borrower shall give the Issuing Bank
irrevocable written, telegraphic or telex notice not later than 12:00 noon, New
York time, at least three Business Days prior to the date of requested issuance
of any Letter of Credit under this Agreement. Such notice shall refer to this
Agreement and shall include (i) a properly completed letter of credit
application on an appropriate form and (ii) a form of notice with respect to
such Letter of Credit including (A) the date of issuance (which shall be a
Business Day) (B) the principal amount, (C) the name and address of the
beneficiary, (D) whether multiple drawings should be permitted, (E) the form of
the draft and any other documents required to be presented at the time of any
drawing (such notice to attach copies of such documents) and (F) the expiry
date. Each notice pursuant to this Section 3.2 shall include a representation by
the Borrower, in form satisfactory to the Issuing Bank, as to the purpose of the
issuance thereof. The Issuing Bank shall promptly advise the Banks of any notice
given hereunder.
SECTION 3.3. Reimbursement; Repayment with Loans. (a) In the
event of a Drawing on any Letter of Credit, the Issuing Bank shall give prompt
telephonic, telecopied or telex notice to the Borrower and the other Banks of
the amount of such Drawing. If the Issuing Bank shall pay any Drawing under a
Letter of Credit, then the Borrower shall without further notice reimburse the
Issuing Bank (or the Issuing Bank shall set-off from the general account of the
Borrower) an amount equal to the amount so drawn, within one Business Day after
the date of such Drawing (but in any event before the Final Maturity Date),
together with interest on such amount at a rate per annum (calculated on the
basis of the actual number of days elapsed over a year of 365 or 366 days, as
the case may be) equal to the Alternate Base Rate. If the Issuing Bank shall pay
any Drawing under a Letter of Credit, then the Borrower's failure to pay such
Reimbursement Obligation as provided above shall be deemed to constitute a
request by the Borrower for an ABR Loan in accordance with Section 2.2, to be
made on the third Business Day following such Drawing in an amount equal to the
Reimbursement Obligation on the date such ABR Loan is to be made and the Issuing
Bank shall so notify the other Banks of such request for an ABR Loan. The
proceeds of such ABR Loan shall be applied by the Administrative Agent to pay
the Reimbursement Obligation to the Issuing Bank. If at the time of the making
of such ABR Loan, the conditions to such Loan set forth in Section 5.3 have not
been met, such ABR Loan shall still be made by the Banks but shall be due and
payable in full on the date such ABR Loan is made.
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(b) The obligations of the Borrower under this
Section 3.3 shall be absolute, unconditional and irrevocable and shall be
satisfied strictly in accordance with the terms of this Agreement and the
applicable Letter of Credit irrespective of:
(i) the lack of validity or enforceability, in
whole or in part, of any Letter of Credit;
(ii) the existence of any claim, set- off,
defense or other right which the Borrower, any Subsidiary of the
Borrower or any other Person may at any time have against the
beneficiary under such Letter of Credit, the Issuing Bank or any Bank
(other than the defense of payment in accordance with the terms of this
Agreement and the applicable Letter of Credit or a defense based on the
gross negligence or willful misconduct of the Issuing Bank) or any
other Person in connection with this Agreement or any other
transaction;
(iii) any draft or other document presented
under a Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect; provided, however, that payment by the
Issuing Bank under such Letter of Credit against presentation of such
draft or document shall not have constituted gross negligence or
willful misconduct of the Issuing Bank;
(iv) payment by the Issuing Bank under a Letter
of Credit against presentation of a draft or other document which does
not comply with terms of such Letter of Credit; provided, however, that
payment by the Issuing Bank under such Letter of Credit against
presentation of such draft or document shall not have constituted gross
negligence or willful misconduct of the Issuing Bank; and
(v) any other circumstance or event whatsoever,
whether or not similar to any of the foregoing; provided, however, that
such other circumstance or event shall not have been the result of
gross negligence or willful misconduct of the Issuing Bank.
It is understood and agreed that in making any payment under a Letter of Credit
(x) the Issuing Bank's exclusive reliance on the documents presented to it under
such Letter of Credit as to any and all matters set forth therein, including,
without limitation, reliance on the amount of any draft presented under such
Letter of Credit, whether or not the amount due to the beneficiary
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equals the amount of such draft and whether or not any document presented
pursuant to such Letter of Credit proves to be insufficient in any respect, if
such document on its face appears to be in order, and whether or not any other
statement or any other document presented pursuant to such Letter of Credit
proves to be forged or invalid or any statement proves to be inaccurate or
untrue in any respect whatsoever, and (y) any non-compliance in any immaterial
respect of the documents presented under a Letter of Credit with the terms
thereof shall, in each case, not be deemed willful misconduct or gross
negligence of the Issuing Bank.
(c) If the Issuing Bank shall pay any Drawing on a
Letter of Credit and shall not have received, for any reason, payment of the
Reimbursement Obligation (whether from the Borrower or through an ABR Loan) by
12:00 noon, New York time, on the third Business Day following such Drawing,
then the Issuing Bank shall promptly so notify, by telephonic or telex notice,
each Bank of such failure to receive payment of the Reimbursement Obligation and
each Bank shall pay to the Issuing Bank in New York, New York, in immediately
available funds, not later than 3:00 p.m., New York time on the immediately
succeeding Business Day, such Bank's Pro Rata Share of the Reimbursement
Obligation and the Issuing Bank shall assign to each such Bank its Pro Rata
Share of such Reimbursement Obligation. Notwithstanding anything contained in
this Agreement to the contrary, each Bank's obligation to make payments to the
Issuing Bank under this Section 3.3 shall be unconditional and shall survive the
termination of this Agreement.
(d) If on the date of termination of this Agreement
in accordance with Section 2.9 or Section 8.1 hereof, any Letter of Credit shall
be outstanding, then on the date of such termination and as a condition thereto,
the Borrower shall deposit in an interest-bearing account of the Collateral
Agent, for the benefit of the Banks (the "Cash Collateral Account") an amount
equal to the aggregate Letter of Credit Exposure existing on such date plus any
LC Fees payable to the last expiry date of any Letter of Credit issued
hereunder. If the Issuing Bank shall pay any Drawing after the date of
termination of this Agreement, the Administrative Agent shall make a payment to
each Bank out of the Cash Collateral Account in an amount equal to such Bank's
Pro Rata Share of the aggregate amount of such Drawing. Any amounts deposited by
the Borrower pursuant to this clause (d) (other than amounts representing fees
or expenses due hereunder) shall be returned with any interest actually earned
to the Borrower, to the extent such funds have not been used to pay
Reimbursement Obligations, on the Business Day following the latest expiry date
of any Letter of Credit issued hereunder.
(e) If on any date on which the Revolving Credit
Committee is reduced in accordance with Section 2.9, the aggregate Letter of
Credit Exposure exceeds the Revolving Credit
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Commitment in effect after giving effect to such reduction, then on such date
the Borrower shall deposit in the Cash Collateral Account an amount equal to the
amount by which the Letter of Credit Exposure then exceeds the Revolving Credit
Commitment in effect after giving effect to such reduction.
SECTION 3.4. Increased Costs. (a) Subject to compliance with
subsections (d) and (e) below, any other provision herein, if after the date of
this Agreement any change in Applicable Law or in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof (whether or not having the force of
law) (i) shall change the basis of taxation of payments to any Bank of the LC
Fee or any other amounts payable hereunder in respect of the Letters of Credit
except to the extent converted to Loans (other than Taxes imposed on the overall
net income of such Bank by the jurisdiction in which such Bank has its principal
office or by any political subdivision or taxing authority therein), or (ii)
shall impose, modify or deem applicable any reserve, special deposit or similar
requirement with respect to its obligations under this Article III or the
Letters of Credit or shall impose on such Bank any other condition affecting
this Agreement with respect to the obligations of such Bank under this Article
III or the Letters of Credit, and the result of any of the foregoing shall be to
increase the cost to such Bank of issuing or participating in any Letters of
Credit or to reduce the amount of any sum received or receivable by such Bank
hereunder in respect thereof, by any amount reasonably deemed by such Bank to be
material, then the Borrower will pay such Bank, upon demand, such additional
amount or amounts as will compensate such Bank for such additional costs
incurred or reduction suffered.
(b) Subject to compliance with subsections (d) and
(e) below, if any Bank shall determine that the adoption after the date hereof
of any law, rule, regulation, agreement or guideline regarding capital adequacy,
or any change in any of the foregoing or in the interpretation or administration
of any of the foregoing by any Governmental Authority, central bank or
comparable agency charged with the interpretation or administration thereof, or
compliance by such Bank (or any Lending Office of such Bank) or such Bank's
holding company with any request or directive regarding capital adequacy
(whether or not having the force of law) of any such Governmental Authority,
central bank or comparable agency, has or would have the effect of reducing the
rate of return on such Bank's capital or on the capital of such Bank's holding
company, if any, as a consequence of its obligations with respect to this
Article III or any Letter of Credit to a level below that which such Bank or
such Bank's holding company could have achieved but for such adoption, change or
compliance (taking into consideration such Bank's policies and the policies of
such Bank's holding company with respect to capital adequacy) by an amount
deemed by such Bank to be
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material, then from time to time, after submission by such Bank to the Borrower
of a written request therefor, the Borrower shall pay to such Bank such
additional amount or amounts as will compensate such Bank or such Bank's holding
company for any such reduction suffered.
(c) A certificate of any Bank setting forth such
amount or amounts and the basis for determination from time to time of such
amount or amounts as shall be necessary to compensate such Bank or its holding
company as specified in paragraph (a) or (b) above, as the case may be shall be
delivered to the Borrower and shall be conclusive absent manifest error. The
Borrower shall pay such Bank the amount shown as due on any such certificate
delivered by it within 10 days after its receipt of the same.
(d) Failure on the part of any Bank to demand
compensation for any increased costs or reduction in amounts received or
receivable or reduction in return on capital with respect to any period shall
not constitute a waiver of such Bank's right to demand compensation with respect
to such period, except that no Bank shall be entitled to compensation under this
Section 3.4 for any costs incurred or reduction suffered with respect to any
date unless such Bank shall have notified the Borrower that it will demand
compensation for such costs or reductions not more than nine months after the
later of (i) such date and (ii) the date on which such Bank shall have become
aware of such costs or reductions. The protection of this Section 3.4 shall be
available to any Bank regardless of any possible contention of the invalidity or
inapplicability of any law, rule, regulation, guideline or other change or
condition which shall have occurred or been imposed.
(e) Any Bank claiming any additional amounts payable
pursuant to this Section 3.4 shall use reasonable efforts (consistent with legal
and regulatory restrictions and such Bank's internal policies) to file any
certificate or document requested by the Borrower or change its applicable
Lending Office to another of its offices, branches or Affiliates, if the making
of such filing or change of Lending Office would avoid the need for or reduce
the amount of any such additional amount attributable to the Loans and would
not, in the sole determination of such Bank, result in any unreimbursed loss,
cost or expense or otherwise be disadvantageous to such Bank.
(f) Without prejudice to the survival of any other
agreement contained herein, the agreements and obligations contained in this
Section 3.4 shall survive the payment in full of principal and interest
hereunder.
SECTION 3.5. Letter of Credit Fees. (a) The Borrower agrees to
pay each Bank a letter of credit fee (the "LC Fee"), on the last Business Day of
each March, June, September and
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December, equal to such Bank's Pro Rata Share of the then applicable Eurodollar
Margin (determined in accordance with Section 2.4(c)) per annum of the average
daily Letter of Credit Exposure existing from time to time during the fiscal
quarter ending on such date of payment. In addition, the Borrower agrees to pay
to the Issuing Bank, on demand, the customary documentation fees for each Letter
of Credit issued by the Issuing Bank (including reasonable fees of counsel). LC
Fees shall be calculated on the basis of the actual number of days elapsed over
a year of 360 days.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Each of Holdings and the Borrower, jointly and severally,
represent and warrant to each of the Banks that:
SECTION 4.1. Organization. Each of Holdings and each of its
Subsidiaries is a company duly organized, validly existing and in good standing
under the laws of the jurisdiction in which it is incorporated, has all
requisite power and authority to own its property and assets and to carry on its
business as currently conducted and is qualified to do business in each
jurisdiction in which the nature of the business conducted or the property owned
or leased by it requires such qualification except where the failure to so
qualify could not reasonably be expected to have a Material Adverse Effect.
SECTION 4.2. Corporate Power and Authority; No Required
Consents or Approvals. (a) The Borrower and each Guarantor has the power to
execute, deliver and perform its obligations under each Loan Document to which
it is a party, to borrow hereunder (if applicable), to grant Liens pursuant to
the Financing Documents to which it is a party and to deliver any Notes to be
delivered by it hereunder.
(b) The execution, delivery and performance by the
Borrower and each Guarantor of each Loan Document to which it is a party, the
borrowings to be made hereunder by the Borrower, the grant by each of the
Borrower and each Guarantor of Liens pursuant to the Financing Documents to
which it is a party and the execution and delivery of the Notes by the Borrower
have been duly authorized by all required company and stockholder action of such
Person and will not (i) violate any provision of Applicable Law, any
Organizational Document, or any indenture or other material agreement or
instrument to which the Borrower or any Guarantor is a party, or by which the
Borrower or any Guarantor or any of their respective properties are or may be
bound, (ii) conflict with, result in a breach of or constitute (alone or with
notice or lapse of time or both) a default under any such indenture, material
agreement or instrument to which the Borrower
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or any Guarantor is a party, or by which the Borrower or any Guarantor or any of
their respective properties are or may be bound or (iii) result in the creation
or imposition of any Lien (other than a Permitted Lien) upon any property of the
Borrower or any Guarantor.
(c) No registration with or consent or approval of,
or other action by, any Governmental Authority is or will be required in
connection with the execution, delivery and performance by any Guarantor or the
Borrower of any Loan Document to which it is a party, any borrowings hereunder
(if applicable) or the grant of Liens by any Guarantor or the Borrower pursuant
to the Financing Documents to which it is a party.
SECTION 4.3. Enforceability. Each Loan Document has been duly
executed and delivered by the Borrower or Guarantor party thereto and
constitutes the legal, valid and binding obligation of the Borrower or such
Guarantor enforceable in accordance with its terms, subject as to matters of law
to any exceptions set forth in the legal opinions delivered pursuant to Section
5.1(m) of this Agreement
SECTION 4.4. Financial Statements; No Undisclosed Liabilities.
(a) Except as set forth on Schedule 4.4(a), the audited consolidated financial
statements of Holdings and its Subsidiaries for the Fiscal Year ended December
31, 1993 (the "Audited Financial Statements"), (i) fairly present in all
material respects the financial position of Holdings and its Subsidiaries at the
dates thereof and their respective results of operations for the periods covered
therein in accordance with GAAP (except as set forth in the notes to such
financial statements) and (ii) disclose all material liabilities, including
contingent and/or unmatured liabilities, of Holdings and its Subsidiaries as of
the dates thereof, which are required to be disclosed thereon in accordance with
GAAP.
(b) Except as set forth on Schedule 4.4(b), neither
Holdings nor any Subsidiary has any obligations or liabilities, contingent,
unmatured or otherwise, which are material to Holdings and the Subsidiaries
considered as a whole and which have not been disclosed in the unaudited
consolidated financial statements of Holdings and its subsidiaries for the
nine-month period ending September 30, 1994 (the "Unaudited Financial
Statements"; and the Unaudited Financial Statements collectively with the
Audited Financial Statements, the "Financial Statements").
SECTION 4.5. No Material Adverse Change. As of the date
hereof, there has been no material adverse change in the business, assets,
operations or condition (financial or otherwise) of Holdings and the
Subsidiaries taken as a whole since September 30, 1994.
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SECTION 4.6. Litigation. To the knowledge of Holdings and its
Subsidiaries, there are no actions, suits or proceedings at law or in equity
instituted or threatened against or directly affecting Holdings or any such
Subsidiary or any of their respective businesses, properties or rights which, if
adversely determined, would result in a Material Adverse Effect.
SECTION 4.7. Compliance with Laws. Neither Holdings nor any of
its Subsidiaries is in violation of, or in default with respect to, any
Applicable Law (including, without limitation, any Environmental Law), other
than any such violations or defaults which, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect.
SECTION 4.8. Employee Benefit Plans. Holdings, each of its
Domestic Subsidiaries, each Plan and each "employee benefit plan" (within the
meaning of Section 3(3) of ERISA) maintained by Holdings or any of its Domestic
Subsidiaries is in compliance in all material respects with all provisions of
ERISA (or similar legislation in the jurisdiction in which a Domestic Subsidiary
is organized) which are applicable thereto. No Reportable Event within the
preceding six years has occurred with respect to any Single Employer Plan as to
which Holdings or any of its Domestic Subsidiaries was required to file a report
with the PBGC. No Single Employer Plan has any material unfunded liability that
subjects such Plan to additional funding requirements under Section 412(l) of
the Code. No Single Employer Plan has an accumulated or waived funding
deficiency or an extension of amortization periods for unfunded liability as
reflected in its funding standard account within the meaning of Section 412 of
the Code. Neither Holdings, any of its Domestic Subsidiaries nor any ERISA
Affiliate thereof has incurred any material liability to or on account of a Plan
pursuant to Sections 515, 4062, 4063, 4064, 4201 or 4204 of ERISA or expects to
incur any liability under any of the foregoing Sections on account of the
termination of participation in or contributions to any Plan. No proceedings
have been instituted to terminate any Plan in other than a "standard
termination" under Section 4041(b) of ERISA. No condition exists which presents
a material risk to Holdings or any of its Domestic Subsidiaries of incurring a
material liability to or on account of a Plan pursuant to the foregoing
provisions of ERISA and the Code. No Lien imposed under the Code or ERISA on the
assets of Holdings or any of its Domestic Subsidiaries exists or is likely to
arise on account of any Plan. Except as set forth on Schedule 4.8, Holdings and
each of its Domestic Subsidiaries may terminate contributions to any other
employee benefit plans maintained by it without incurring any material liability
to any Person interested therein (other than claims for benefits incurred or
payable under the terms of such plans in the ordinary course of business and
plans maintained pursuant to collective bargaining agreements).
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SECTION 4.9. Taxes. Each of Holdings and each of its
Subsidiaries has filed or caused to be filed all federal, state, local and
foreign tax returns which, to its best knowledge, are required to be filed by
it, and have paid or caused to be paid all taxes shown to be due and payable on
such returns or on any assessments received by it, other than any taxes or
assessments the validity of which it is contesting in good faith by appropriate
proceedings and with respect to which adequate accounting reserves have been set
aside to the extent required by GAAP.
SECTION 4.10. Title to Properties. (a) Except as set forth on
Schedule 4.10(a), Holdings or a Subsidiary has good title, of a quality
commensurate with prudent standards of business practice, to all of the
properties and assets purported to be owned by them (excluding unpatented mining
claims), including all properties reflected on the Financial Statements
(including real property, tangible and intangible personal property, minerals,
whether or not extracted from the ground, and other mineral rights), except
properties and assets disposed of from the date of the most recent Financial
Statement through the Closing Date in the ordinary course of business. No Lien
exists with respect to any such assets or properties other than Permitted Liens.
(b) Holdings and its Subsidiaries, own, or are
licensed to use, all trademarks, tradenames, patents, patent applications,
copyrights, technology, know-how, processes and other intellectual and
proprietary rights (collectively, the "Intellectual Property") necessary for the
conduct of their respective businesses, except where the failure to own or
license such Intellectual Property would not have a Material Adverse Effect.
Schedule 4.10(b) attached hereto contains a list of all patents, patent
applications, trademark and service ▇▇▇▇ registrations and applications
therefor, and copyright registrations and applications therefor, purported to be
owned by Holdings. Except as set forth on Schedule 4.10(b), no claim has been
asserted and is pending by any Person with respect to the use by Holdings or any
of its Subsidiaries of any such Intellectual Property, or challenging or
questioning the validity or effectiveness of any such Intellectual Property
which, if adversely determined, could reasonably be expected to have a Material
Adverse Effect.
SECTION 4.11. Business. Except as set forth on Schedule 4.11
attached hereto, Holdings and its Subsidiaries have engaged (and are currently
engaged) only in the mining, processing and sale of diatomite, perlite and other
industrial minerals, the manufacture and sale of silicates and other filtration
products for industrial and retail applications and the provision of related
services (the "Business").
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SECTION 4.12. Agreements. Neither Holdings nor any of its
Subsidiaries is in default in the performance, observance or fulfillment of any
of the obligations, covenants or conditions contained in any material agreement
or instrument the breach of which would result in a Material Adverse Effect.
SECTION 4.13. No Material Misstatements. No information,
report, financial statement, exhibit or schedule contained in or attached to the
Loan Documents or set forth on Schedule 4.13 contains any misstatement of
material fact or omits to state any material fact necessary to make such
statements, in light of the circumstances under which they were made, not
misleading.
SECTION 4.14. Related Party Transactions. The terms of any
transactions between Holdings and any of its Subsidiaries, on the one hand, and
any Affiliate of Alleghany which is not a Subsidiary, on the other hand, were
not materially less favorable to Holdings and its Subsidiaries than terms
obtainable in a comparable arm's-length transaction between non-affiliated
parties (it being understood that such transactions have not been submitted for
competitive bids by unrelated Persons).
SECTION 4.15. Labor Matters and Acts of God. Neither Holdings
nor any of its Subsidiaries has been affected by any fire, explosion, accident,
strike, lockout or other labor dispute since September 30, 1994, which has had a
Material Adverse Effect.
SECTION 4.16. Outstanding Debt. Neither Holdings nor any of
its Subsidiaries has outstanding Indebtedness, directly or indirectly, except
Permitted Indebtedness. There does not exist, and, after giving effect to the
transactions contemplated by the Loan Documents, there will not exist, any
material default under any instrument or agreement relating to or evidencing any
direct or indirect Indebtedness of Holdings or any of its Subsidiaries (or any
event which, with only the giving of notice or the passage of time or both,
would result in such a breach or default).
SECTION 4.17. Federal Reserve Regulations. The making of the
Loans hereunder to the Borrower, the use by the Borrower of the proceeds thereof
as contemplated hereby and the security arrangements contemplated hereby and by
the Financing Documents, will not violate or be inconsistent with any of the
provisions of Regulation G, Regulation T, Regulation U or Regulation X.
SECTION 4.18. Investment Company Act and Public Utility
Holding Company Act. Neither Holdings nor any of its Subsidiaries is an
"investment company" or Affiliate of an "investment company" as defined in, or
subject to regulation under, the Investment Company Act of 1940, as amended, or
is a
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"holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935, as amended.
SECTION 4.19. Security Interests. The provisions of each
Collateral Agreement to which the Borrower or any Guarantor is a party is
effective to create in favor of the Collateral Agent, on behalf of the Banks, a
valid, binding and perfected security interest in and Lien on all right, title
and interest of the Borrower and such Guarantor in all of the Collateral. Upon
the delivery of the shares of capital stock to be pledged, such security
interests and Liens shall have first priority for all purposes over any other
Lien (other than Permitted Liens with higher priority under Applicable Law) on
the Collateral.
SECTION 4.20. Capital Stock; Subsidiaries. (a) The authorized
capital stock of Holdings consists of 200,000 shares of Common Stock, $1.00 par
value, and 1,700 shares of Preferred Stock, $1.00 par value, of which 80,000
shares of Common Stock are validly issued, fully paid and nonassessable and are
outstanding and owned beneficially and of record in the amounts and by the
Persons set forth on Schedule 4.20 hereto. Except for the option held by ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇, ▇▇., a copy of which has been previously delivered to the
Administrative Agent, no Person holds any option, warrant, stock subscription or
other right to acquire any capital stock of Holdings and no securities
convertible into or exercisable or exchangeable for any capital stock of
Holdings have been authorized or issued.
(b) The authorized capital of the Borrower consists
of 1,000 shares of common stock, par value $1.00 per share (the "Borrower Common
Stock") all of which shares are validly issued, fully paid and nonassessable and
are outstanding. All of the shares of Borrower Common Stock are owned
beneficially and of record by Holdings and pledged to the Collateral Agent for
the benefit of the Banks as provided in the Holdings Pledge Agreement. No Person
holds any option, warrant, stock subscription or other right to acquire any
capital stock of the Borrower and no securities convertible into or exercisable
or exchangeable for any capital stock of the Borrower have been authorized or
issued. Except for the pledge provided for in the Holdings Pledge Agreement, no
Person has any Lien against any capital stock of the Borrower.
(c) The authorized capital of Celite consists of
1,000 shares of common stock, par value $1.00 per share (the "Celite Common
Stock") all of which shares are validly issued, fully paid and nonassessable and
are outstanding. All of the shares of Celite Common Stock are owned beneficially
and of record by the Borrower and pledged to the Collateral Agent for the
benefit of the Banks as provided in the Pledge Agreement. No Person holds any
option, warrant, stock subscription or other right to acquire any capital stock
of Celite and no securities convertible into or exercisable or exchangeable for
any capital
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stock of Celite have been authorized or issued. Except for the pledge provided
for in the Pledge Agreement and as set forth on Schedule 4.20, no Person has any
Lien against any capital stock of Celite.
(d) The authorized capital stock of Harborlite
consists of 1,000,000 shares of Common Stock, $1.00 par value (the "Harborlite
Common Stock"), and 40,000 shares of Preferred Stock, $1.00 par value, (the
"Harborlite Preferred Stock"). 88,551.69 shares of Harborlite Common Stock and
25,871.47 shares of Harborlite Preferred Stock are validly issued and
outstanding, fully paid and nonassessable and owned beneficially and of record
by the Borrower and pledged to the Collateral Agent for the benefit of the Banks
as provided in the Pledge Agreement. Schedule 4.20 sets forth a list of each
Person holding any option, warrant, stock subscription or other right to acquire
any capital stock of Harborlite and any securities convertible into or
exercisable or exchangeable for any capital stock of Harborlite. Except for the
pledge provided for in the Pledge Agreement and the Liens granted in the
Harborlite Documents, no Person has any Lien against any capital stock of
Harborlite.
(e) The authorized capital of each Subsidiary (other
than the Borrower, Celite and Harborlite) is set forth opposite such
Subsidiary's name on Schedule 4.20 attached hereto. All of the shares listed on
Schedule 4.20 are validly issued, fully paid and nonassessable and are
outstanding and owned beneficially and of record in the amounts and by the
Persons set forth thereon and 65% of such shares have been pledged to the
Collateral Agent for the benefit of the Banks as provided in the Celite Pledge
Agreement. No person holds any option, warrant, stock subscription or other
right to acquire any capital stock of any Subsidiary and no securities
convertible into or exercisable or exchangeable for any capital stock of such
Subsidiary have been authorized or issued. Except for the pledge provided for in
the Celite Pledge Agreement, no Person has any Lien against any capital stock of
any Subsidiary.
(f) Schedule 4.20 attached hereto sets forth a
correct and complete list of each Person (other than the Subsidiaries) in whom
the Borrower or any Subsidiary presently owns, directly or indirectly, any
ownership interest (other than securities representing less than 10% of the
aggregate ownership interest of Persons making periodic reports under the
Securities Exchange Act of 1934, as amended, or similar foreign laws). Except as
set forth on Schedule 4.20, Holdings and/or a Subsidiary has the absolute right
and power to sell, assign, convey and transfer any right or benefit incident to
the ownership thereof.
(g) Annex IV attached hereto sets forth a list of
each Subsidiary which is material to Holdings and its Subsidiaries viewed on a
consolidated basis.
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ARTICLE V
CONDITIONS TO LENDING
SECTION 5.1. Loans on the Closing Date. The obligations of the
Banks to make Loans hereunder and the obligations of the Issuing Bank to issue
Letters of Credit hereunder, in each case on the Closing Date, are subject to
the satisfaction of the following conditions:
(a) Notes. The Administrative Agent shall have
received duly executed Notes from the Borrower complying with the provisions of
Section 2.1(b) and Section 2.2(d).
(b) Corporate Documents. The Administrative Agent
shall have received (i) a copy of each Organizational Document of Holdings, the
Borrower and Celite, including all amendments thereto, certified, as of a recent
date by an appropriate public official of its jurisdiction of incorporation and
a certificate as to the good standing and charter documents from such public
official as of a recent date, (ii) a certificate of the Secretary or Assistant
Secretary of each Guarantor and the Borrower dated the Closing Date and
certifying (A) that attached thereto is a correct and complete copy of the
by-laws of such Person as in effect on the Closing Date and at all times since a
date prior to the date of the resolutions described in clause (B) below, (B)
that attached thereto is a correct and complete copy of resolutions duly adopted
by the Board of Directors of such Person, authorizing the execution, delivery
and performance of the Loan Documents, the borrowings hereunder (if applicable),
the granting of Liens pursuant to the Financing Documents and the other
transactions contemplated hereby, (C) that the certificate of incorporation of
such Person has not been amended since the date of the last amendment thereto
shown on the certificate of good standing furnished pursuant to clause (i)
above, and (D) as to the incumbency and specimen signature of each officer of
such Person executing any Loan Document or any other document delivered in
connection herewith, (iii) a certificate of another officer of such Person as to
the incumbency and specimen signature of the Secretary or Assistant Secretary
executing the certificate pursuant to (ii) above, (iv) a certificate from the
Secretary of State of each state in the United States in which such Person
conducts material business or owns material assets, as to the qualification of
such Person to do business and its good standing in such state, and (v) such
other documents as the Administrative Agent, or ▇'▇▇▇▇▇▇▇▇ Graev & Karabell,
LLP, counsel to the Banks, may reasonably request.
(c) Lien Search. The Collateral Agent shall have
received and be reasonably satisfied with the results of a search of the Uniform
Commercial Code filings made with respect to each Guarantor and the Borrower in
the jurisdictions listed on Annex
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V, which shall not have disclosed any prior Lien or security interest in the
Collateral, other than (A) Permitted Liens and (B) any Liens being released
contemporaneously with the Closing.
(d) No Defaults. The Borrower and each Guarantor
shall be in compliance with the terms and provisions set forth in each Loan
Document to which it is a party, and at the time of and immediately after the
consummation of the transactions contemplated hereby, no Event of Default or
Default shall have occurred and be continuing.
(e) Insurance. Holdings and its Subsidiaries shall
have delivered to the Administrative Agent certificates of insurance complying
with Section 6.12.
(f) Requisite Approvals. Holdings and its
Subsidiaries shall have obtained all required governmental and other consents,
licenses, permits and approvals relating to the transactions contemplated hereby
and the other Loan Documents, including all necessary permits and licenses to
operate the Business in the manner such Business has previously been conducted,
except for any consent, license, permit or approval the failure of which to
obtain would not reasonably be expected to have a Material Adverse Effect.
(g) Security. The Financing Documents shall be in
full force and effect and no default or event of default shall have occurred and
be continuing thereunder. Each Guarantor and the Borrower shall have delivered
to the Collateral Agent all certificates representing shares of capital stock of
any Subsidiary to be pledged to the Collateral Agent on behalf of the Bank in
connection with the transactions contemplated by this Agreement, accompanied by
blank undated stock powers and duly executed for transfer.
(h) Representations and Warranties. The
representations and warranties of Holdings and the Borrower contained herein, in
any other Loan Document and in any certificate or other instrument delivered
pursuant to this Agreement or any Loan Document shall be correct in all material
respects as though made on and as of such date.
(i) Officer's Certificate. The Administrative Agent
shall have received certificates signed by a Responsible Officer of Holdings and
the Borrower confirming the satisfaction of the conditions precedent set forth
herein on and as of the Closing Date.
(j) Fees and Expenses. All fees and other
consideration owing by Holdings or any of its Subsidiaries to the Banks under
the terms of the Fee Letter, this Agreement, the other Loan Documents, or any
other document executed in connection herewith shall have been paid in full.
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(k) Legal Matters. All matters relating to this
Agreement, the other Loan Documents and the transactions contemplated hereby and
thereby shall be satisfactory to the Co-Agents and ▇'▇▇▇▇▇▇▇▇ Graev & Karabell,
LLP, counsel to the Banks. The Administrative Agent shall have received a legal
opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & Sutcliffe, satisfactory in form and substance
to ▇'▇▇▇▇▇▇▇▇ Graev & Karabell, LLP, counsel to the Banks.
SECTION 5.2. Revolving Loans Made After Closing Date. The
obligation of the Banks to make Revolving Loans to the Borrower hereunder from
time to time after the Closing Date are subject to the following conditions:
(a) Representations and Warranties. Each of the
representations and warranties contained in Sections 4.1, 4.2, 4.3, 4.17, 4.18
and 4.19 shall be correct and complete as of the date of such Revolving Loan.
(b) Compliance. The Borrower and each Guarantor shall
be in compliance in all material respects with the terms and provisions set
forth in each Loan Document to which it is a party, and at the time of and
immediately following the consummation of such Revolving Loan or Revolving
Loans, no Default or Event of Default shall have occurred and be continuing.
(c) Notice of Borrowings. The Borrower shall have
provided (i) a notice of borrowing to the Administrative Agent in substantially
the form of Exhibit K and (ii) all other documents reasonably requested by the
Banks related to the making of Revolving Loans hereunder.
(d) Officer's Certificate. The Administrative Agent
shall have received a certificate executed by a Responsible Officer of Holdings
and the Borrower certifying as to the matters set forth in clauses (a) and (b)
above.
SECTION 5.3. Letters of Credit Issued After the Closing Date.
The obligation of the Issuing Bank to issue Letters of Credit hereunder from
time to time after the Closing Date are subject to the following conditions:
(a) Representations and Warranties. Each of the
representations and warranties contained in Sections 4.1, 4.2, 4.3, 4.17, 4.18
and 4.19 shall be correct and complete as of the date of issuance of such Letter
of Credit.
(b) Compliance. The Borrower and each Guarantor shall
be in compliance in all material respects with the terms and provisions set
forth in each Loan Document to which it is a party, and at the time of and
immediately following the issuance
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of such Letter of Credit, no Default or Event of Default shall have occurred and
be continuing.
(c) Notice. The Borrower shall have provided the
notice required by Section 3.2 hereof.
(d) Officer's Certificate. The Administrative Agent
shall have received a certificate executed by a Responsible Officer of Holdings
and each Borrower certifying as to the matters set forth in clauses (a) and (b)
above.
ARTICLE VI
AFFIRMATIVE COVENANTS
Each of the Borrower and each Guarantor, jointly and
severally, covenants and agrees with each Bank that, so long as this Agreement
shall remain in effect or any Obligation is outstanding, without the written
consent of the Majority Banks, it will, and it will cause each Subsidiary to:
SECTION 6.1. Corporate Existence. Do or cause to be done all
things necessary to preserve, renew and keep in full force and effect its
corporate existence and any necessary state or foreign qualifications (other
than any qualifications the absence of which, in the aggregate, would not result
in a Material Adverse Effect).
SECTION 6.2. Obligations and Taxes. Pay or discharge, or cause
to be paid or discharged, before the same shall become delinquent (i) all taxes,
assessments and governmental charges or levies lawfully imposed upon it or upon
its income or profits or in respect of its property, (ii) all mineral and other
royalties, (iii) all lawful claims for labor, materials and supplies, (iv) all
required payments under any Permitted Indebtedness and (v) all other
Obligations; provided, however, that it shall not be required to pay or
discharge or to cause to be paid or discharged any such amount so long as the
validity or amount thereof shall be contested in good faith by appropriate
proceedings and, if required by GAAP, appropriate reserves or accruals have been
made with respect thereto.
SECTION 6.3. Performance Under Agreements. Perform its
obligations under this Agreement, each Collateral Agreement, Loan Document and
each other material indenture, agreement or other instrument to which it is a
party; provided, however, that it shall not be required to so perform its
obligations under any such other material indenture, agreement or other
instrument to the extent it shall reasonably believe in good faith that such
performance is not required and, if required by GAAP, appropriate reserves or
accruals have been made with respect thereto.
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SECTION 6.4. Access to Properties and Inspections. Maintain
financial records in accordance with reasonable and prudent accounting practices
and controls sufficient to prepare the financial statements required by Section
6.11 and, upon reasonable written notice, at all reasonable times and as often
as any Bank may reasonably request, permit any authorized representative of any
Bank to visit and inspect its properties and records during normal business
hours, and to make extracts from such records and permit any authorized
representative of any Bank to discuss its affairs, finances and condition with
such officers and, with the consent of an Executive Officer (which consent shall
not be unreasonably withheld), with its independent public accountants, in each
case as any Bank shall deem appropriate.
SECTION 6.5. Defense of Claims. Use reasonable commercial
efforts to vigorously defend itself and its properties from and against any
lawsuits or claims which could reasonably be expected to result in a Material
Adverse Effect unless the Borrower reasonably believes it has no good faith
defense to any such lawsuit or claim.
SECTION 6.6. Notices of Litigation or Claims. Promptly upon
obtaining notice of the commencement thereof, provide the Administrative Agent
with written notice of any of the following events which could reasonably be
expected to have a Material Adverse Effect:
(a) the issuance by any court or Governmental
Authority of any injunction, order or decision involving Holdings or
any Subsidiary or any of their respective properties;
(b) the filing or commencement of any action, suit or
proceeding against or affecting Holdings or any Subsidiary or any of
their respective properties whether at law or in equity or by or before
any court or any federal, state, municipal, foreign or other
Governmental Authority;
(c) any imposition by any Governmental Authority of a
Lien which is not a Permitted Lien;
(d) any claim, demand or action impairing title to
any of the properties or assets of Holdings or any Subsidiary; and
(e) any other adverse action by or notice from a
Governmental Authority with respect to Holdings or any Subsidiary or
any of their respective properties (including any such action under any
Environmental Law).
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SECTION 6.7. Notice of Certain Actions. Furnish as promptly as
possible after obtaining knowledge of the occurrence thereof, written notice of
(a) any Default hereunder, (b) any default by Holdings or any Subsidiary under
any other material agreement or instrument evidencing Indebtedness, (c) any
development in the business or affairs of Holdings or any Subsidiary which is
likely, in the reasonable judgment of Holdings, to have a Material Adverse
Effect or (d) the sale by Alleghany of any capital stock of Holdings, in each
case specifying, as applicable, (i) the nature and extent thereof, (ii) any
rights of any other parties thereto with respect to termination, acceleration or
similar provisions and (iii) any corrective action taken or proposed to be taken
with respect thereto.
SECTION 6.8. Compliance. Comply with all Applicable Laws
(including ERISA and Environmental Laws), and maintain all required clearances,
consents, permits and governmental approvals, if the failure to comply with such
Applicable Laws or failure to maintain such clearances, consents, permits and
governmental approvals could reasonably be expected to result in a Material
Adverse Effect.
SECTION 6.9. Further Assurances. Duly execute and deliver, or
cause to be duly executed and delivered, at its own cost and expense, such
further documents as may be necessary or proper in the reasonable judgment of
the Administrative Agent to carry out the provisions and purposes of this
Agreement and the other Loan Documents and to maintain and preserve the
perfection and priority of the Liens granted pursuant to the Financing
Documents.
SECTION 6.10. Business and Properties. (a) At all times do or
cause to be done all things necessary to (i) preserve, renew and keep in full
force and effect the rights, licenses, permits, franchises and mining
concessions necessary to, or used or useful in the conduct of, its Business;
provided, however, that Holdings and the Subsidiaries will not be required to
preserve, renew or maintain any right, license, permit or franchise if the Board
of Directors of the Borrower shall determine that the preservation thereof is no
longer desirable in the conduct of the business of such Person, and (ii) keep
its properties used or useful in the conduct of its business in good repair,
working order and condition and from time to time make, or cause to be made, all
needful and proper repairs, renewals and replacements, betterments and
improvements thereto, all as in the judgment of Holdings or such Subsidiary may
be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however, that
nothing in this Section 6.10 shall prevent Holdings and any Subsidiary from
discontinuing the operation or maintenance of any of its properties if such
discontinuance is, in the judgment of
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the Board of Directors of Borrower, desirable in the conduct of
the business of such Person.
(b) As promptly as possible after obtaining knowledge
of the occurrence thereof, furnish written notice to the Collateral Agent of the
institution of any proceeding for the condemnation or other taking of any
material property of Holdings or its Subsidiaries. An award, proceeds or other
amounts paid or payable as a result of, in connection with or in any way related
to a condemnation or taking of, or exercise by any Governmental Authority of
eminent domain over, any property of Holdings or its Subsidiaries shall be paid,
promptly upon receipt, to the Collateral Agent and disbursed in accordance with
Section 6.14(c) of this Agreement as if such proceeds were insurance proceeds.
SECTION 6.11. Financial Statements and Reports.
Furnish to the Administrative Agent:
(a) within 120 days after the end of each Fiscal Year
(commencing with the Fiscal Year ending December 31, 1994),
consolidated and consolidating balance sheets, income statements, cash
flow statements and comparisons to budget showing their financial
condition as of the close of such Fiscal Year and the results of their
operations during such year of Holdings and the Subsidiaries, the
consolidated financial statements to be audited by independent
accountants of nationally recognized standing and prepared in
accordance with GAAP;
(b) within 120 days after the end of each Fiscal
Year, current and projected annual and cumulative budgets, operating
plans and financial projections for Holdings and the Subsidiaries on a
consolidated and consolidating basis, for such Fiscal Year and the next
four succeeding Fiscal Years;
(c) within 60 days after the end of the first three
fiscal quarters of each Fiscal Year, commencing March 31, 1995, the
unaudited consolidating and consolidated balance sheets, income
statements and cash flow statements (along with comparisons to budget),
showing the financial condition and results of operations of Holdings
and the Subsidiaries, as at the end of each such quarter and for the
then elapsed portion of the fiscal year, in each case prepared in
accordance with GAAP;
(d) concurrently with the financial statements
delivered pursuant to Section 6.11(a) and (c), certificates of a
Financial Officer of Holdings and concurrently with the financial
statements delivered pursuant to Section 6.11(a) certificates of
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the independent auditors of Holdings, certifying that no Default or
Event of Default has occurred or, if such a Default or Event of Default
has occurred, specifying the nature and extent thereof and any
corrective action taken or proposed to be taken with respect thereto;
(e) concurrently with the statements delivered
pursuant to Section 6.11(a) and (c), a report, in form and substance
satisfactory to the Banks, describing (i) the compliance activities of
Holdings or any Subsidiary undertaken with respect to applicable
Environmental Law and (ii) describing any material notice, charge or
complaint received by Holdings or any Subsidiary from any Governmental
Authority with respect to any Environmental Law;
(f) concurrently with the statements delivered
pursuant to Section 6.11(a) and (c), certificates of a Financial
Officer of Holdings, certifying for the fiscal period then ended and as
of the last day of such fiscal period compliance with the covenants set
forth in Sections 7.11, 7.12 and 7.13 hereof, in each case showing the
calculation thereof; and
(g) promptly, from time to time, such other
information regarding the operations, business affairs and financial
condition of Holdings and the Subsidiaries as any Bank may reasonably
request.
Each consolidated financial statement delivered in accordance with this
Agreement shall be accompanied by a certificate of a Financial Officer of
Holdings, (and, in the case of year-end financial statements and reports, the
independent auditors of Holdings) certifying that such statement fairly presents
in all material respects the consolidated financial position and results of
operations of Holdings and each Subsidiary at the dates thereof and for the
periods then ended and has been prepared in accordance with GAAP, subject to
normal year-end adjustments, as appropriate.
SECTION 6.12. Insurance. (a) Maintain insurance (including,
without limitation, business interruption insurance) on the business and
properties of Holdings and each Subsidiary to such extent and against such
risks, including fire and other risks insured against by extended coverage, as
is customary with companies similarly situated and in the same or similar
businesses, provided that primary insurance coverages for property and general
liability will at all times be provided by insurance carriers rated at least A+,
A1 or A by Standard & Poor's Corporation, ▇▇▇▇▇'▇ Investors Services or A.M.
Best, respectively.
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(b) Maintain in full force and effect workers'
compensation insurance (with respect to the Domestic Subsidiaries only) and
public liability insurance against claims for personal injury or death or
property damage occurring upon, in, about or in connection with, the use of any
properties owned, occupied or controlled by Holdings or any Subsidiary, in each
case as such Person shall deem reasonably necessary.
(c) Each insurance policy required under Section
6.12(a) shall contain endorsements in form satisfactory to the Collateral Agent
providing, among other things, that any loss shall be payable in accordance with
the terms of such policy notwithstanding any act of Holdings or any Subsidiary
which might otherwise result in forfeiture of such insurance and that the
insurer waives all rights of set-off, counterclaim, deduction or subrogation
against Holdings or any Subsidiary.
SECTION 6.13. Mining Plan. Prepare and deliver to the Banks
(a) on each anniversary of the Closing Date, an annual calculation of minable
reserves for the Lompoc, California, Zacoalco, Mexico, Quincy, Washington,
Alicante, Spain, Murat, France and No Aqua, New Mexico mining properties
together with a detailed five-year mine plan for such reserves and a conceptual
mine plan for recovery of such reserves for an additional five year period and
(b) within 12 months of any Permitted Acquisition which involves material mining
properties, the mine plans described in clause (a) above prepared with respect
to such acquired mining properties.
SECTION 6.14. Interest Rate ▇▇▇▇▇▇. From and after the date
hereof, maintain hedging or interest rate protection agreements acceptable to
the Majority Banks. Prior to entering into any such arrangement, the Borrower
shall (a) notify the Banks of all material terms thereof, (b) provide the Banks
time to prepare bids on such hedging and/or interest rate protection
arrangements and (c) consider in good faith the terms of a Bank's bid, if any;
provided, however, that, in connection with any such hedging or interest rate
protection agreement, the Borrower shall only be required to provide each Bank
with one opportunity to bid on such hedge or interest rate protection
arrangement.
SECTION 6.15. ERISA. (a) Comply in all material respects with
the provisions of ERISA (or other similar legislation in the jurisdiction in
which such Subsidiary is organized) applicable to the Plans or any "employee
benefit plan" (within the meaning of Section 3(3) of ERISA) maintained by
Holdings or any Subsidiary and (b) furnish to each Bank, as soon as possible,
and in any event within 30 days after any Responsible Officer of Holdings or any
Subsidiary knows or has reason to know of the following events: (i) the
occurrence or expected occurrence of any Reportable Event with respect to any
Plan or any withdrawal from, or the termination, Reorganization or Insolvency
of, any Multiemployer Plan or (ii) the institution
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of proceedings or the taking of any other action by the PBGC, the Borrower or
any ERISA Affiliate, or any Multiemployer Plan with respect to the withdrawal
from, or the terminating, Reorganization or Insolvency of, any Plan, a
certificate of a Financial Officer of the Borrower setting forth the details
thereof and the action that Holdings or such ERISA Affiliate proposes to take
with respect thereto.
SECTION 6.16. Proceeds. Use the proceeds of the Loans solely
for the purposes set forth in the Preamble to this Agreement.
ARTICLE VII
NEGATIVE COVENANTS
Each of the Borrower and each Guarantor jointly and severally
covenants and agrees with each Bank that, so long as this Agreement shall remain
in effect or any Obligation is outstanding, without the written consent of the
Majority Banks, it will not, and will not permit any Subsidiary to:
SECTION 7.1. Indebtedness. Incur, create, assume or
permit to exist any Indebtedness, except:
(a) Indebtedness under this Agreement and
the other Loan Documents;
(b) Indebtedness between or among Holdings and the
Subsidiaries which (i) in each instance is unsecured and (ii) if the
issuer of such Indebtedness is the Borrower or Celite, such
Indebtedness is subordinate in all respects to the payment in full of
all Obligations under the Facility;
(c) any obligations in respect of forward sales
contracts, commodities futures, options or similar hedging arrangements
regarding commodities entered into with the written consent of the
Majority Banks;
(d) any Letter of Credit issued hereunder;
(e) endorsements for collection or deposit
in the ordinary course of business;
(f) purchase money security interests created in
the ordinary course and not to exceed $5,000,000 at any time
outstanding;
(g) the Permitted Subsidiary Indebtedness;
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(h) Indebtedness to Alleghany (i) not to exceed $10
million and (ii) which is subordinated in all respects to the payment
in full of the Obligations of the Guarantors and the Borrowers to the
Banks in accordance with the Alleghany Subordination Agreement;
(i) Indebtedness of the Borrower arising in
connection with (i) the guaranty by the Borrower of certain obligations
of Harborlite Corporation, a California corporation ("Old Harborlite"),
which were guaranteed by the stockholders of Old Harborlite prior to
the closing under the Harborlite Documents or (ii) the Borrower's
indemnification under the Harborlite Documents of the stockholders of
Old Harborlite from and against certain liabilities of Old Harborlite
which were guaranteed by such stockholders; and
(j) Indebtedness arising under one or more
carnets obtained in the ordinary course of business.
SECTION 7.2. Negative Pledge. Incur, create, assume or suffer
or permit to exist any Lien on any property or assets (including the capital
stock of any Subsidiary) or on any income or rights in respect of any thereof,
except:
(a) Liens granted to the Collateral Agent in favor of
the Banks pursuant to this Agreement, the Financing Documents, or any
other Loan Document;
(b) Liens incurred and arising out of surety bonds,
appeal bonds, statutory obligations, bids, performance and return of
money and similar obligations and pledges or deposits made in the
ordinary course of business in connection with workmen's compensation,
unemployment insurance, old age pensions and other social security
benefits;
(c) Liens imposed by law, including carriers',
warehousemen's, mechanics', materialmen's and vendors' Liens incurred
in the ordinary course of business and securing obligations which are
not yet due or which are being contested in good faith by appropriate
proceedings and as to which it shall have set aside adequate reserves
in accordance with GAAP;
(d) Liens securing the payment of Taxes, assessments
and governmental charges or levies, either not yet delinquent or being
contested in good faith by appropriate legal or administrative
proceedings and as to which it shall have set aside adequate reserves
in accordance with GAAP;
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(e) zoning restrictions, easements, licenses,
reservations, provisions, covenants, conditions, waivers, restrictions
on the use of property or minor irregularities of title which do not in
the aggregate impair the use of any parcel of property material to the
operation of the business of Holdings or any Subsidiary or the value of
such property for the purpose of the business of Holdings or any
Subsidiary (it being understood that the existing conditions set forth
on Schedule 4.10(a) constitute Permitted Liens hereunder);
(f) Liens constituting purchase money security
interests permitted by Section 7.1(f) hereof;
(g) Liens described on Schedule 7.2 attached hereto;
(h) Liens on the capital stock of Harborlite arising
under the New Harborlite Corporation Shareholders Agreement dated
November 13, 1992, among ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Residential Trust U/T/A dated April 13, 1990,
▇▇▇▇▇ ▇. ▇▇▇▇▇, Harborlite and the Borrower;
(i) extensions and renewals of Liens permitted
hereunder; provided, however, that the Indebtedness secured thereby is
not increased and the Lien does not encumber any property not
encumbered by the Lien so extended or renewed; and
(j) Liens on assets acquired in an Acquisition
permitted under Section 7.7.
Notwithstanding anything herein to the contrary, neither the Borrower nor any
Guarantor shall create, incur, assume, or suffer or permit to exist any Lien on
the capital stock of any Subsidiary, or any part thereof or interest therein,
except Liens granted pursuant to the Financing Documents.
SECTION 7.3. Restricted Payments. Declare or pay any dividends
(other than dividends payable solely in shares of its capital stock) or make any
other distribution to any security holder, whether in cash, property, securities
or a combination thereof, or directly or indirectly redeem, repurchase, retire
or otherwise acquire for a consideration, any shares of any class of its
respective capital stock or other ownership interest or set apart any sum for
the aforesaid purposes (any such dividend, distribution, redemption, purchase,
retirement or acquisition being referred to herein as a "Restricted Payment")
except as follows:
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(a) (i) Each Subsidiary shall be authorized to
distribute to Celite, the Borrower or Holdings and Holdings shall be
authorized to distribute to Alleghany such funds as shall be required
to pay the obligations of such Person for reasonable federal, state,
local and foreign income tax purposes in accordance with the Tax
Sharing Agreement dated as of January 1, 1994, between Alleghany and
Holdings and (ii) each Subsidiary shall be authorized to make dividends
or distributions from time to time to Celite, the Borrower or Holdings;
and
(b) The Borrower and Harborlite shall be permitted to
redeem or repurchase the preferred stock and earn out units issued to
the former stockholders of Old Harborlite provided that such redemption
or repurchase does not involve aggregate consideration in excess of $25
million.
Any Restricted Payment permitted pursuant to this Section 7.3 may be made in the
form of a dividend or distribution as the Person making such Restricted Payment
shall determine. The making of any loan to an Affiliate, or the repayment of any
Indebtedness to an Affiliate shall be a Restricted Payment for the purposes
hereof.
SECTION 7.4. Investments. Purchase, directly or beneficially,
any stock, other securities or evidences of Indebtedness of, or make or permit
to exist any loans or advances to, or make any investment or acquire any
interest whatsoever in any other Person, including any Excluded Subsidiary (any
such transaction, an "Investment") other than Permitted Investments and
Investments (a) by Holdings in the Borrower, (b) by the Borrower in Celite, (c)
by Holdings, the Borrower or Celite in any other Subsidiary provided such
Investment is in the form of equity or subordinated debt, and, if such
Subsidiary is a newly-formed Subsidiary and is material to Holdings and the
Subsidiaries viewed on a consolidated basis, the stock of such Subsidiary is
first pledged to the Collateral Agent for the benefit of the Banks in a manner
acceptable to the Collateral Agent and counsel to the Banks (which pledge shall
be for 100% of such stock if the new Subsidiary is a Domestic Subsidiary owned
directly by Holdings, the Borrower or Celite and 65% of such stock if the new
Subsidiary is a Foreign Subsidiary owned directly by Holdings, the Borrower or
Celite), (d) as permitted in accordance with Section 7.7 hereof, (e) by
Holdings, the Borrower or Celite in any other Subsidiary resulting from the
delivery of goods or the provision of services in the ordinary course of
business and (f) by any Subsidiary (other than the Borrower or Celite) in any
other Subsidiary; provided, however, that in no event shall any Investment be
made if any Default or Event of Default shall have occurred and be continuing.
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SECTION 7.5. Nature of Business. (a) Effect any material
change in its business or create any new business or subsidiary (including any
Excluded Subsidiary) which does not involve filtration, fillers, diatomite,
perlite and/or other industrial minerals, and related materials and services.
(b) Engage or invest in any business relating to the
recycling of spent filter cake at locations other than Celite's existing
facilities without (i) providing an environmental assessment, in form and
substance satisfactory to the Majority Banks, of such proposed activity and (ii)
receiving written acknowledgement from the Majority Banks of their receipt and
satisfaction with such report.
(c) Engage in any business involving the disposal in
landfills or other means of permanent storage of spent filter cake without (i)
providing an environmental assessment, in form and substance satisfactory to the
Majority Banks, of such proposed disposal activities and (ii) receiving written
acknowledgment from the Majority Banks of their receipt and satisfaction with
such report.
SECTION 7.6. Asset Sales. Make any Asset Sale, unless (a) such
Asset Sale is for consideration reasonably believed to be at least equal to the
Fair Value of the assets being sold and the Borrower complies with the
provisions of Section 2.8 in respect of Mandatory Prepayments or (b) the
Borrower obtains the written consent of the Majority Banks.
SECTION 7.7. Acquisitions. Acquire all or a substantial part
of the assets or stock of any other Person (an "Acquisition"), unless:
(a) no Default or Event of Default (i) has occurred
and is continuing or (ii) will occur after giving effect to such Acquisition;
(b) if the Acquisition involves aggregate
consideration exceeding $25 million, the Majority Banks give prior written
approval to make such Acquisition;
(c) no Third Party Financing is used to effect such
Acquisition;
(d) Holdings shall use its best efforts provide to
the Banks at least 15 days prior to the consummation of such Acquisition (i) an
income statement covering the twelve month period ending on the last day of the
most recently completed fiscal quarter for which financials were last provided
with pro forma adjustments to reflect the consummation, on the first day of such
period, of such Acquisition (including the incurrence of any related Loans under
this Agreement) and (ii) a balance sheet as of the last day of the most recently
completed fiscal quarter
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for which financials were last provided, with pro forma adjustments to reflect
the consummation of such Acquisition (including the incurrence of any related
Loans under this Agreement);
(e) the pro forma financial statements provided
pursuant to subsection (e) above shall show that the financial covenants set
forth in Sections 7.11, 7.12 and 7.13 shall have been satisfied on such pro
forma basis; and
(f) the Borrower shall have taken all steps necessary
to pledge as security for the Facility any capital stock acquired in any
Acquisition in a form satisfactory to the Collateral Agent;
provided, however, that Holdings or any Subsidiary may effect an Acquisition
using Third Party Financing if (i) no Default or Event of Default (A) has
occurred and is continuing or (B) will occur as a result of such Acquisition,
(ii) 50% of the aggregate consideration involved in such acquisition is provided
as an equity contribution; (iii) the Borrower shall have (A) notified the Banks
of all material terms of such proposed Acquisition, given the Banks reasonable
time to prepare bids on providing such additional debt financing and (C)
considered in good faith the terms of a Bank's bid, if any, (iv) the Borrower
shall have created a special purpose subsidiary (an "Excluded Subsidiary") to
effect such Acquisition and recourse under such Third Party Financing shall be
limited to the assets or capital stock of such Excluded Subsidiary, (v) no
Guaranty or other commitment with respect to such Excluded Subsidiary shall be
entered into by Holdings, the Borrower or any Subsidiary, and (vi) if required
under Section 7.4, the Administrative Agent, on behalf of the Banks, shall have
received documentation in form and substance acceptable to the Collateral Agent,
to pledge as security for the Facility the capital stock of such Excluded
Subsidiary, provided, however, that (x) in the case of an Excluded Subsidiary
organized in a jurisdiction other than in the United States, the Borrower shall
pledge to the Collateral Agent, for the benefit of the Banks, an amount equal to
65% of the outstanding capital stock of such Excluded Subsidiary and (y) any
pledge under this Section 7.7 may be subordinate to such Third Party Financing.
Any Acquisition permitted under this Section 7.7 is herein
referred to as a "Permitted Acquisition."
SECTION 7.8. Transactions With Affiliates. (a) Except as
permitted by Section 7.4, enter into any transaction (including the purchase,
sale, lease or exchange of any property or the rendering of any service) with
any Affiliate (including an Excluded Subsidiary but excluding Holdings or any of
its Subsidiaries), except (i) in the ordinary course of business and upon terms
which are not less favorable and reasonable than those obtainable in an
arm's-length transaction with a Person who is
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not an Affiliate or (ii) any management agreement, entered into in the ordinary
course of the Borrower's business, pursuant to which the Borrower provides
reasonable management services to any Affiliate in which Holdings or one of its
Subsidiaries owns a material amount of capital stock.
(b) Enter into any transaction providing for the
purchase, sale, lease or exchange of any property or the rendering of any
service involving Holdings, Celite or the Borrower, on the one hand, and any
other Subsidiary on the other hand, except in the ordinary course of business
and upon terms which are not less favorable to Holdings, the Borrower or Celite
than those obtainable in an arm's-length transaction with a Person who is not an
Affiliate of Holdings.
SECTION 7.9. Sale and Leaseback Transactions. Enter into any
Sale and Leaseback Transaction.
SECTION 7.10. Merger or Consolidation. Merge into or
consolidate or combine with any other Person; provided, however, that this
provision shall not prohibit the merger or consolidation of a wholly owned
Subsidiary (other than Celite or the Borrower) with or into the Borrower, Celite
or another wholly owned Subsidiary which is not an Excluded Subsidiary or as
otherwise permitted in accordance with Section 7.7 hereof if (i) immediately
after giving effect to such transaction, no Default or Event of Default shall
have occurred and be continuing and (ii) the Borrower shall deliver a
certificate of a Financial Officer and an opinion of counsel satisfactory in
form and substance to the Banks to the effect that such transaction complies
with clause (i) above.
SECTION 7.11. Interest Coverage. Permit the ratio of (a)
EBITDA for any Fiscal Year less actual Capital Expenditures for such Fiscal Year
to (b) Interest Expense for such Fiscal Year to be less than 2.25x.
SECTION 7.12. Debt to Worth. Permit the ratio of Total
Indebtedness to Total Capitalization to exceed at any time the following
percentages at any time during the periods set forth below:
Period Ratio
------ -----
On or prior to
December 31, 1996 46%
After December 31, 1996 42%
SECTION 7.13. Net Worth. Permit Net Worth to be less than (a)
at any time prior to December 31, 1996, the sum of (i) $80,000,000 plus (ii) 50%
of Cumulative Net Income to the last day of the fiscal quarter then ended and
(b) at any time after
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December 31, 1996, the sum of (i) $90,000,000 plus (ii) 50% of Cumulative Net
Income to the last day of the fiscal quarter then ended.
SECTION 7.14. Fiscal Year. Effect any change in the
Fiscal Year without obtaining the prior written approval of the
Banks and making any necessary amendments to the provisions of
this Agreement.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1. Defaults. In case of the happening of
any of the following events (each, an "Event of Default"):
(a) the Borrower shall fail to make any payment on
principal of any Loan when and as the same shall become due and payable
including at the due date thereof, by acceleration or otherwise, including any
Mandatory Prepayment required by Section 2.8; or
(b) the Borrower shall fail to pay any interest or
Fee due hereunder or in connection herewith when and as the same shall become
due and payable, whether at the due date thereof, by acceleration or otherwise,
and such failure shall continue for more than two Business Days following the
date such payment was due; or
(c) the Borrower shall fail to pay any Reimbursement
Obligation when and as the same shall become due or payable; or
(d) default shall be made in the due observance or
performance of any restrictive covenant or agreement contained in Article VII of
this Agreement or any obligation of the Borrowers pursuant to Sections 6.1, 6.6,
6.7 or 6.12; or
(e) default shall be made in the due observance or
performance of any other covenant or agreement to be observed or performed under
this Agreement or in any other Loan Document, and such default shall continue
unremedied for 30 days after written notice thereof to the Borrower by the
Administrative Agent; or
(f) any representation or warranty contained in this
Agreement or in any other Loan Document or in any report, certificate, financial
statement or other instrument furnished pursuant to this Agreement shall prove
to have been false or misleading in any material respect when made or furnished;
or
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(g) Holdings or any Material Subsidiary shall (i)
voluntarily commence any proceeding or file any petition seeking relief under
Title 11 of the United States Code or any other federal, state or foreign
bankruptcy, insolvency or similar law, (ii) consent to the institution of, or
fail to controvert in a timely and appropriate manner, any such proceeding or
the filing of any such petition, (iii) apply for or consent to the appointment
of a receiver, trustee, custodian, sequestrator or similar official for any such
Person or for any substantial part of its property or assets, (iv) file an
answer admitting the material allegations of a petition filed against it in any
such proceeding, (v) make a general assignment for the benefit of creditors,
(vi) fail generally to pay its debts as they become due or (vii) take any
corporate or stockholder action in furtherance of any of the foregoing; or
(h) an involuntary proceeding shall be commenced or
an involuntary petition shall be filed in a court of competent jurisdiction
seeking (i) relief in respect of Holdings or any Material Subsidiary or of any
substantial part of the property or assets thereof, under Title 11 of the United
States Code or any other federal, state or foreign bankruptcy, insolvency or
similar law, (ii) the appointment of a receiver, trustee, custodian,
sequestrator or similar official for any such Person or for any substantial part
of its property or (iii) the winding-up or liquidation of any such Person, and
such proceeding, petition or order shall continue unstayed and in effect for a
period of 60 consecutive days; or
(i) a final judgment for the payment of money in an
amount in excess of $5,000,000 shall be rendered by a court or other tribunal
against Holdings or any Subsidiary and shall remain undischarged for a period of
60 consecutive days during which execution of any such judgment shall not have
been effectively stayed, bonded or vacated; or
(j) any event shall occur or fail to occur if the
effect of such occurrence or failure is to accelerate the maturity of
Indebtedness for borrowed money aggregating $2,500,000 of Holdings or any
Subsidiary (other than any Loan or Letter of Credit Exposure hereunder) or to
permit the holder thereof (or a trustee on behalf of such holder) to cause such
Indebtedness to become due prior to the stated maturity thereof and such
occurrence or failure shall not have been remedied within any applicable period
of grace, or any such Indebtedness shall not be paid when due, whether by
acceleration or otherwise; or
(k) (i) Any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of the Code)
involving any Plan, (ii) any "accumulated funding deficiency" (as defined in
Section 302 of ERISA), whether or not waived, shall exist with respect to any
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Plan, (iii) a Reportable Event shall occur with respect to, or proceedings shall
commence to have a trustee appointed, or a trustee shall be appointed, to
administer or to terminate, any Single Employer Plan, which Reportable Event or
commencement of proceedings or appointment of a trustee is, in the reasonable
opinion of the Majority Banks, likely to result in the termination of such Plan
for purposes of Title IV of ERISA, (iv) any Single Employer Plan shall terminate
for purposes of Title IV of ERISA, (v) Holdings or any Subsidiary or any ERISA
Affiliate thereof shall, or is, in the reasonable opinion of the Majority Banks,
likely to, incur any liability in connection with a withdrawal from, or the
Insolvency or Reorganization of, a Multiemployer Plan or (vi) any other event or
condition shall occur or exist with respect to a Plan; and in each case in
clauses (i) through (vi) above, such event or condition, together with all other
such events or conditions, if any, has any reasonable likelihood of subjecting
Holdings or any Subsidiary to any tax, penalty or other liabilities which, if
the then present value thereof (estimated in good faith by such Person) were
deducted from the then total assets of such Person, could reasonably be
determined to have a Material Adverse Effect; or
(l) any of the other Loan Documents shall cease to be
in full force and effect, enforceable in accordance with its terms or any
security interest purported to be created by the Financing Documents shall cease
to be a valid and perfected first priority security interest or first priority
Lien, as applicable, subject to any Permitted Liens or Holdings, Celite or any
Borrower shall assert the invalidity of any such security interest or Lien; or
(m) any event of default shall have occurred and
shall be continuing under any other Loan Document; or
(n) any Expropriatory Action shall have been taken by
any Person against assets or capital stock of Holdings or any Subsidiary having
a Fair Value in excess of $5,000,000; provided, however, that the Borrower will
be permitted to cure such default within 30 days of the occurrence thereof, by
making a payment with respect to then outstanding Loans to the Administrative
Agent, on behalf of the Banks, in an amount equal to the Fair Value of the
assets subject to such Expropriatory Action (which repayment shall be treated as
a Mandatory Prepayment in accordance with Section 2.8 to prepay Term Loans
outstanding hereunder); or
(o) Holdings shall cease to be the record and
beneficial owner of all of the outstanding shares of the capital stock of the
Borrower or the Borrower shall cease to be the record and beneficial owner of
all of the outstanding shares of the capital stock of Celite; or
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(p) Holdings shall cease to own beneficially,
directly or indirectly, all of the outstanding capital stock of each other
Subsidiary; provided, however, that management or employees of Holdings or the
Subsidiaries shall be permitted to hold the minimum number of shares of any
Subsidiary, not to exceed 1% of its shares, which under Applicable Law must be
held by more than one shareholder, or by directors, of such Subsidiary; or
(q) Alleghany shall cease to own of record and
beneficially 80% of the outstanding capital stock of Holdings; provided,
however, that Alleghany may sell outstanding capital stock of Holdings if (i)
such sale of stock is for cash consideration at least equal to the Fair Value of
the stock being sold, (ii) the proceeds of such sale are contributed to Holdings
as a Parent Contribution and designated to (A) fund Capital Expenditures, (B)
fund Permitted Acquisitions in accordance with Section 7.7 hereof or (C) prepay
Loans outstanding hereunder in accordance with Section 2.9 hereof and (iii)
after giving effect to such sale Alleghany owns of record and beneficially at
least 60% of the outstanding capital stock of Holdings;
then, and in any such event (other than an event described in paragraph (g) or
(h) above), and at any time thereafter during the continuance of such event, the
Administrative Agent shall, upon the written request of the Majority Banks, by
written or telegraphic notice to the Borrower, take any of the following actions
at the same or different times: (iv) terminate forthwith the Revolving Credit
Commitment of the Banks under the Facility, (v) declare any Notes then
outstanding to be forthwith due and payable, whereupon the entire unpaid
principal of such Notes, together with accrued interest thereon and any unpaid
accrued Fees and all other liabilities of Holdings and the Borrower accrued
hereunder, shall become forthwith due and payable, without presentment, demand,
protest or any other notice of any kind, all of which are hereby expressly
waived by the Borrower, anything contained herein or in any Note to the contrary
notwithstanding, and (vi) refuse to issue any additional Letters of Credit and
demand that the Borrowers provide to the Collateral Agent cash collateral in an
amount equal to the Letter of Credit Exposure, such collateral to be deposited
in the Cash Collateral Account to be held by the Collateral Agent for the
benefit of the Banks; and in any event described in paragraph (g) or (h) above,
the Revolving Credit Commitment of the Banks under the Facility shall
automatically terminate (together with all obligations to issue Letters of
Credit) and any Notes shall automatically become due and payable and the
Borrower shall be obligated to provide cash collateral to the Administrative
Agent as described in clause (iii), all without presentment, demand, protest or
other notice of any kind, all of which are hereby expressly waived by the Parent
and Borrower, anything contained herein or in any Note to the contrary
notwithstanding.
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ARTICLE IX
THE ADMINISTRATIVE AGENT AND CO-AGENTS
In order to expedite the various transactions contemplated by
this Agreement, Chemical is hereby appointed to act as Administrative Agent,
Collateral Agent and Co-Agent and Bank of America is hereby appointed to act as
Co-Agent. Each Bank hereby irrevocably authorizes and directs the Administrative
Agent and the Collateral Agent, respectively, to take such action on behalf of
such Bank under the terms and provisions of this Agreement and the Loan
Documents and to exercise such powers hereunder and thereunder as are
specifically delegated to or required of the Administrative Agent and the
Collateral Agent, respectively, by the terms and provisions hereof and thereof,
together with such powers as are reasonably incidental thereto. Nothing in this
Agreement shall be construed as imposing any duty or obligation on any Co-Agent
in its capacity as Co-Agent.
The Administrative Agent is hereby expressly authorized on
behalf of the Banks, without hereby limiting any implied authority, (a) to
receive on behalf of each Bank any payment of principal of or interest on the
Notes outstanding hereunder and all other amounts accrued hereunder paid to the
Administrative Agent, and promptly to distribute to each Bank its proper share
of all payments so received, (b) to give notice within a reasonable time on
behalf of each of the Banks to the Borrower of any Event of Default specified in
this Agreement of which the Administrative Agent has actual knowledge, and (c)
to distribute promptly to each Bank copies of all notices, agreements and other
material as provided for in this Agreement as received by the Administrative
Agent.
The Collateral Agent is hereby expressly authorized on behalf
of the Banks, without hereby limiting any implied authority, (a) to receive and
hold on behalf of the Banks any instrument or certificate which constitutes
Collateral, (b) to give notice within a reasonable time on behalf of each of the
Banks to the Guarantor or the Borrowers of any event of default specified in any
Collateral Agreement of which the Collateral Agent has actual knowledge and (c)
to take any and all action on behalf of the Banks permitted under the terms of
any Collateral Agreement. The Collateral Agent may, in its discretion and
without the consent of the Banks, appoint sub-agents to act as the Collateral
Agent in any jurisdiction or with respect to any Collateral.
Neither the Administrative Agent, the Collateral Agent, the
Co-Agents, nor any of their respective directors, officers, employees or agents
shall be liable as such for any action taken or omitted by any of them hereunder
except for its or his own gross negligence or willful misconduct, or be
responsible for any statement, warranty or representation herein or the contents
of
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any document delivered in connection herewith or be required to ascertain or to
make any inquiry concerning the performance or observance by Holdings or any
Borrower of any of the terms, conditions, covenants or agreements of this
Agreement or any other Loan Document. The Administrative Agent, the Collateral
Agent and the Co-Agents shall not be responsible to the Banks for the due
execution, genuineness, validity, enforceability or effectiveness of this
Agreement, the Financing Documents, the Notes or any other instrument or
agreement to which reference is made herein. The Administrative Agent, the
Collateral Agent and the Co-Agents may deem and treat the payee of any Note as
the owner thereof for all purposes hereof until it shall have received from the
payee of such Note notice, given as provided herein, of the transfer thereof.
The Administrative Agent, the Collateral Agent and the Co-Agents shall in all
cases be fully protected in acting, or refraining from acting, in accordance
with written instructions signed by the Majority Banks, and, except as otherwise
specifically provided herein, such instructions and any action taken or failure
to act pursuant thereto shall be binding on all the Banks. Each of the
Administrative Agent, the Collateral Agent and the Co-Agents shall, in the
absence of knowledge to the contrary, be entitled to rely on any paper or
document believed by it in good faith to be genuine and correct and to have been
signed or sent by the proper Person or Persons. None of the Administrative
Agent, the Collateral Agent, the Co-Agents, the Banks or any of their respective
directors, officers, employees or agents shall have any responsibility to
Holdings, any Borrower, or any other Person on account of the failure or delay
in performance or breach by any other Bank of any of its obligations hereunder
or to any other Bank on account of the failure of or delay in performance or
breach by such other Bank, Holdings, or such Borrower, or any other Person of
any of their respective obligations hereunder or in connection herewith. The
Administrative Agent, the Collateral Agent and the Co-Agents may execute any and
all their respective duties hereunder by or through agents or employees and
shall be entitled to advice of legal counsel selected by the Administrative
Agent with respect to all matters arising hereunder and shall not be liable for
any action taken or suffered in good faith by it in accordance with the advice
of such counsel.
Each of the Administrative Agent, the Collateral Agent, the
Co-Agents and their respective Affiliates may accept deposits from, lend money
to and generally engage in any kind of business with the Borrower and its
Affiliates as if it were not the Administrative Agent, the Collateral Agent, a
Co-Agent, or such an Affiliate.
Each Bank agrees (i) to reimburse each of the Administrative
Agent, the Collateral Agent and the Co-Agents in the amount of such Bank's Pro
Rata Share of any expenses incurred for the benefit of the Banks by such
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
-▇▇-
▇▇
▇▇▇▇▇▇▇▇▇▇ Agent or Co-Agent, including counsel fees and compensation of agents
and employees paid for services rendered on behalf of the Banks, not reimbursed
by the Borrower or the Guarantors and (ii) to indemnify and hold harmless the
Administrative Agent, the Collateral Agent, the Co-Agents and any of their
respective directors, officers, employees or agents, on demand, in the amount of
such Bank's Pro Rata Share, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which may be imposed
on, incurred by or asserted against it in such capacity or in any way relating
to or arising out of this Agreement, any other Loan Document or any action taken
or omitted by it or any of them under this Agreement or any other Loan Document,
to the extent not reimbursed by the Borrower or the Guarantors; provided,
however, that no Bank shall be liable to the Administrative Agent, the
Collateral Agent or any Co-Agent for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the gross negligence or willful
misconduct of the Administrative Agent, the Collateral Agent or such Co-Agent,
as the case may be, or of any of the directors, officers, employees or agents of
such Person.
Each Bank acknowledges that it has, independently and without
reliance upon the Administrative Agent, the Collateral Agent, any Co-Agent or
any other Bank and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement and the other Loan Documents and to make Loans as contemplated hereby.
Each Bank also acknowledges that it will, independently and without reliance
upon the Administrative Agent, the Collateral Agent, any Co-Agent or any other
Bank and based on such documents and information as it shall deem appropriate at
the time, continue to make its own decisions in taking or not taking action
under or based upon this Agreement, any related agreement or any document
furnished hereunder.
ARTICLE X
HOLDINGS GUARANTY
SECTION 10.1. Holdings Guaranty. Holdings hereby absolutely,
unconditionally and irrevocably guarantees to the Banks and their successors and
assigns, as primary obligor and not merely as surety, the full and punctual
payment and performance of all Obligations of the Borrower to the Banks, when
and as due, whether at maturity, by acceleration, or upon a date fixed for
prepayment or mandatory prepayment (the "Holdings Guaranty"). The liability of
Holdings hereunder is as a guarantor of payment and performance, and not merely
of collectability, and is not conditioned or contingent upon the
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enforceability of the Loan Documents or any other instruments relating to the
creation or performance of the Obligations or the pursuit by the Co-Agents or
the Banks of any remedies which they now have or may hereafter have under any
Loan Document, at law, in equity or otherwise. Neither the Administrative Agent,
Collateral Agent, Co-Agents nor the Banks need inquire into the power of the
Borrower or the authority its officers or agents acting or purporting to act on
its behalf. Nothing contained in this Article X shall prevent the Administrative
Agent, Collateral Agent, Co-Agents or the Banks from suing on the Notes or from
exercising any rights available to them hereunder, under any of the Loan
Documents or under applicable law, and the exercise of any of such rights shall
not constitute a legal or equitable discharge of Holdings. Holdings shall
continue to be liable under this Guaranty and the provisions hereof shall remain
in full force and effect notwithstanding the occurrence of any or all of the
following, none of which shall require notice to Holdings: (a) any modification,
agreement, stipulation or course of dealing between the Borrower and any
Co-Agent, any Bank, the Collateral Agent or the Administrative Agent with
respect to the Obligations or any other matter relating to the Loan Documents,
including, without limitation, any alteration, compromise, acceleration,
extension or change in the time or manner for the payment or performance of any
Obligations, any increase or reduction in the rate of interest charged on funds
borrowed pursuant to the Loan Documents; (b) any waiver of or failure to enforce
any of the terms, covenants or conditions contained in the Loan Documents; (c)
any waiver of any right or remedy against the Borrower or against any other
Person, including, without limitation, any other guarantor, with respect to all
or any portion of the Borrower's or such other Person's liability for or with
respect to the Obligations; (d) the addition or substitution of one or more
guarantors of any or all of the Borrower's Obligations under the Loan Documents;
(e) the subordination of any rights with respect to any security given for the
Borrower's Obligations or the acceptance of any additional or substituted
security therefor; or (f) the foreclosure of any Lien with respect to any or all
of the real or personal property now or hereafter securing any of the
Obligations, whether by exercise of a power of sale contained therein, by an
action for judicial foreclosure or by acceptance of a deed in lieu of
foreclosure. As security for the performance of its obligation under this
Article X, Holdings shall execute and deliver to the Collateral Agent on behalf
of the Banks the Holdings Security Agreement and the Holdings Pledge Agreement.
SECTION 10.2. Guarantor's Waivers. Holdings hereby irrevocably
waives and relinquishes, and agrees not to assert or take advantage of, to the
maximum extent permitted by law in each jurisdiction in which the enforcement of
such waiver is sought, any and all rights, remedies and defenses accorded by
Applicable Law to guarantors or sureties. In addition to, not in limitation of
the immediately preceding sentence, Holdings hereby expressly
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waives and relinquishes, and agrees not to assert or take advantage of, to the
maximum extent permitted by law in each jurisdiction in which the enforcement of
such waiver is sought, the following rights, remedies and defenses: (a) notice
of acceptance of this Guaranty; (b) notice of the existence, creation,
incurrence, renewal, extension, modification or accrual of any Obligations of
the Borrower to the Co-Agents, Administrative Agent, Collateral Agent or the
Banks; (c) notice of any action on the part of the Borrower, the Co-Agents,
Administrative Agent, Collateral Agent, the Banks or any creditor of the
Borrower or Holding, or on the part of any other Person whomsoever relating to
the Obligations or the Loan Documents, including, without limitation, notice of
enforcement of any right or remedy with respect thereto, except as otherwise
expressly set forth herein; (d) any statute of limitations affecting Holding's
liability hereunder or the enforcement thereof; (e) any defense that may arise
by reason of the incapacity, lack of authority, death or disability of any
Person or the failure of the Co-Agents, the Collateral Agent, the Administrative
Agent or the Banks to file or enforce a claim against the estate (in
administration, bankruptcy or any other proceeding) of any Person; (f) the right
to require the Co-Agents, the Collateral Agent, the Administrative Agent or the
Banks to proceed against the Borrower or any other Person (including, without
limitation, any other guarantor), or to proceed against or exhaust any security
or collateral held by the Collateral Agent or the Banks at any time, or to
enforce any other right or pursue any other remedy, and Holdings expressly
agrees that the Co-Agents, the Collateral Agent, the Administrative Agent or the
Banks may enforce this Guaranty without the necessity of resorting to or
exhausting any security or collateral and without the necessity of proceeding
against the Borrower or any other Person; (g) any defense based upon an election
of remedies by the Co-Agents, the Collateral Agent, the Administrative Agent or
the Banks; (h) any other defense based upon destruction or diminution of
Holding's rights against the Borrower or the Borrower's assets, whether or not
hypothecated as security; and (i) any defense based upon any statute or rule of
law which provides that the obligation of a surety must be neither larger in
amount nor in other respects more burdensome than that of the principal.
Holding's sole right with respect to any foreclosure of real or personal
property collateral or security for any of the Obligations shall be to bid at
the sale thereof in accordance with applicable law. The Banks may also bid at
any such sale, and in the event such collateral is sold to any Banks in whole or
in partial satisfaction of the Obligations, Holdings shall have no further right
or interest with respect thereto, including, without limitation, any right of
redemption, whether arising under law or in equity.
SECTION 10.3. Bankruptcy. (a) No Effect on Guaranty. The
obligations of Holdings under this Guaranty shall not be altered, limited or
affected by any proceeding, voluntary or involuntary, involving the bankruptcy,
insolvency, receivership,
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reorganization, liquidation, or arrangement of the Borrower, or by any defense
or decision of any court or administrative body resulting from any such
proceeding. Any interest on the Obligations which accrues after the commencement
of any such proceeding (or, if interest on any portion of the Obligations ceases
to accrue by operation of law by reason of the commencement of such proceeding,
such interest as would have accrued on any such portion of the Obligations if
such proceeding had not been commenced) shall be included in the Obligations for
the purposes hereof, Holdings expressly agreeing that its liability pursuant to
this Guaranty shall be determined without regard to any rule of law or order
arising out of such proceeding which may relieve the Borrower of liability for
any portion of the Obligations. Holdings will permit any trustee in bankruptcy,
receiver, debtor in possession, assignee for the benefit of creditors, or
similar Person, to pay the Banks, or to allow the claim of the Banks with
respect to, any such interest accruing after the date on which such proceeding
is commenced. In the event that all or any portion of the Obligations are paid
or performed by the Borrower, the obligations of Holdings hereunder shall
continue and remain in full force and effect in the event that all or any part
of such payment or performance is avoided or recovered directly or indirectly
from the Banks as a preference, fraudulent transfer or otherwise.
(b) Filing of Claims. In any bankruptcy or other
proceeding involving the Borrower in which the filing of claims is required or
permitted by law, Holdings shall file all claims that it may have against the
Borrower relating to any Indebtedness of the Borrower to Holdings, and will
assign to the Collateral Agent on behalf of the Banks all rights of Holdings
thereunder. If Holdings does not file any such claim, the Collateral Agent, as
attorney-in-fact for Holdings, is hereby authorized to do so in the name of
Holdings, or, in the Collateral Agent's discretion, to assign the claim to a
nominee and to cause a proof of claim to be filed in the name of the Collateral
Agent's nominee. The foregoing power of attorney is coupled with an interest and
cannot be revoked. The Collateral Agent or its nominee shall have the sole right
to accept or reject any plan proposed in such proceeding and to take any other
action which a party filing a claim is entitled to do. In any such case, whether
in administration, bankruptcy or otherwise, the Person authorized to pay such
claim shall pay to the Collateral Agent, on behalf of the Banks, the amount
payable on such claim and, to the full extent necessary for that purpose,
Holdings hereby assigns to the Collateral Agent, on behalf of the Banks, all of
Holding's rights to any such payments or distributions to which Holdings would
otherwise be entitled; provided, however, that Holding's obligations hereunder
shall not be satisfied except to the extent that the Collateral Agent receives
cash by reason of any such payment or distribution. If the Collateral Agent
receives anything hereunder other than cash,
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the same shall be held as additional collateral for amounts due
under this Guaranty.
SECTION 10.4. Payment. In furtherance of the provisions of
this Article and not in limitation of any other right which the Administrative
Agent, the Collateral Agent, any Co-Agent or any Bank may have at law or in
equity against Holdings by virtue of this Guaranty or otherwise, upon the
failure of the Borrower to pay any Obligation when and as the same shall become
due, whether at maturity, by acceleration, upon a date fixed for prepayment or
mandatory prepayment or otherwise, Holdings hereby promises to, and will, upon
receipt of a written or telexed demand by the Administrative Agent, forthwith
pay, or cause to be paid, to the Collateral Agent for distribution to the Banks,
in cash, the amount of such unpaid Obligation.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1. Notices. All notices, demands and requests of
any kind to be delivered to any party hereto in connection with this Agreement
shall be deemed to have been duly given and received if delivered personally or
if sent by nationally-recognized overnight courier, by telecopier or by first
class, registered or certified mail, return receipt requested, to such party at
its address as follows:
(a) if to the Borrower, to:
World Minerals Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Vice President, Finance
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
World Minerals Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
Vice President and
General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
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(b) if to Chemical, as Administrative Agent and
Co-Agent, to:
Chemical Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
(c) if to Bank of America, as Co-Agent, or any
other Bank, at its address set forth on
Annex II attached hereto.
Any such notice, demand or request so delivered shall be deemed to have been
received (i) on the day of actual delivery in the case of personal delivery or
telecopier delivery, (ii) on the next business day after the date when sent in
the case of delivery by nationally-recognized overnight courier, or (iii) on the
fifth business day after the date of deposit in the U.S. mail in the case of
mailing. Any party hereto may from time to time by notice in writing served upon
the other as aforesaid designate a different mailing address or a different
person to which all such notices, demands or requests thereafter are to be
addressed.
SECTION 11.2. Survival of Agreement. All representations and
warranties made by the Borrower or any Guarantor herein and in the other Loan
Documents and in any certificate or other instrument prepared or delivered
pursuant to this Agreement or any other Loan Document (i) shall be considered to
have been relied upon by the Administrative Agent, the Co-Agent and the Banks
and (ii) shall survive the making of Loans by the Banks and the execution and
delivery to the Banks of the Notes evidencing such Loans and all covenants and
agreements made by the Borrower or any Guarantor herein or in any other Loan
Document and continue in full force and effect as long as any principal of or
accrued interest on any Loan, any Fee, any Reimbursement Obligation, any LC Fee
or any other amount payable under or in connection with this Agreement or any
other Loan Document is outstanding and unpaid.
SECTION 11.3. Successors and Assigns; Syndications; Loan
Sales; Participations. (a) Whenever in this Agreement any of the parties hereto
is referred to, such reference shall be deemed to include the permitted
successors and assigns of such party, and all covenants, promises and agreements
by or on behalf of the Borrower, any Guarantor the Administrative Agent, the
Collateral Agent, the Co-Agents or the Banks that are contained in this
Agreement or any other Loan Document shall bind and inure to the benefit of
their respective successors and assigns. In connection with any syndication, the
Borrower agrees to assist the Co-Agents actively in their syndication efforts by
providing
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to the Co-Agents and any potential participants direct contact with senior
management and representatives of Holdings and its Subsidiaries and all
information reasonably requested by the CoAgents and such participants,
including financial forecasts in a format acceptable to a bank syndication.
(b) Each Bank may assign to one or more Eligible
Assignees all or a portion of its interests, rights and obligations under this
Agreement (including all or a portion of its Aggregate Commitment, the Loans at
the time owing to it and Notes held by it and its rights, titles and interests
under the other Loan Documents); provided, however, that (i) except in the case
of an assignment to a Bank or an Affiliate of a Bank, the written consent of the
Borrower to such assignment shall have been given (which consent shall not be
unreasonably withheld), (ii) such assignment shall be of a constant, and not a
varying, percentage of all the assigning Bank's rights and obligations under
this Agreement (other than any rights or obligations relating to the Letters of
Credit), (iii) except in the case of an assignment to a Bank or an Affiliate of
a Bank, the Pro Rata Share of the Aggregate Commitment of the assigning Bank
subject to each such assignment (determined as of the date the Assignment and
Acceptance with respect to such assignment is delivered to the Administrative
Agent) shall not be less than $5,000,000 and the Pro Rata Share of the Aggregate
Commitment of such Bank remaining after such assignment shall not be less than
$5,000,000 or shall be zero, (iv) the parties to each such assignment shall
execute and deliver to the Administrative Agent an Assignment and Acceptance,
together with the Notes subject to such assignment and a processing and
recordation fee of $2,000, in addition, the assignee shall also execute and
deliver to the Collateral Agent a counterpart to the Collateral Agent Agreement
and (v) such assignment shall not result in any increased costs which must be
paid by the Borrower. Upon acceptance and recording pursuant to paragraph (e) of
this Section 11.3, from and after the effective date specified in each
Assignment and Acceptance (which effective date shall be at least five Business
Days after the execution thereof, unless the Administrative Agent shall
otherwise agree) (A) the assignee thereunder shall be a party hereto and, to the
extent provided in such Assignment and Acceptance, become and have the rights
and obligations of a Bank under this Agreement and (B) the assigning Bank
thereunder shall, to the extent of the interest assigned pursuant to such
assignment, be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all or the remaining portion of an
assigning Bank's rights and obligations under this Agreement, such Bank shall
cease to be a party hereto) but shall continue to be entitled to the benefits of
Sections 2.13 and 3.4 as well as to any fees or other amounts accrued to its
account but unpaid on such date.
(c) By executing and delivering an Assignment and
Acceptance, the assigning Bank thereunder and the assignee
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thereunder shall be deemed to confirm to and agree with each other and the other
parties hereto as follows: (i) such assigning Bank warrants that it is the legal
and beneficial owner of the interest being assigned thereby free and clear of
any adverse claim and that its Pro Rata Share of the Aggregate Commitment and
the total outstanding balance of its Loans, in each case without giving effect
to assignments thereof which have not become effective, are as set forth in such
Assignment and Acceptance, (ii) except as set forth in clause (i) above, such
assigning Bank makes no representation or warranty and assumes no responsibility
with respect to any statements, warranties or representations made in or in
connection with this Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement, any other
Loan Documents or any other instrument or document furnished pursuant hereto, or
to the financial condition of any Guarantor or the Borrower, or the performance
or observance by any Guarantor or the Borrower of any of its obligations under
this Agreement, any other Loan Document or any other instrument or document
furnished pursuant hereto, (iii) such assignee represents and warrants that it
is legally authorized to execute and deliver the Assignment and Acceptance, (iv)
such assignee confirms that it has received a copy of this Agreement, together
with copies of the most recent financial statements delivered pursuant to
Section 6.11 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (v) such assignee will independently and without
reliance upon the Administrative Agent, any Co-Agent, such assigning Bank or any
other Bank and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement; (vi) such assignee appoints and
authorizes the Administrative Agent and the Collateral Agent to take such action
as agent on its behalf and to exercise such powers under this Agreement as are
delegated to the Administrative Agent and Collateral Agent, respectively, by the
terms hereof, together with such powers as are reasonably incidental thereto;
and (vii) such assignee agrees that it will perform in accordance with their
terms all the obligations which by the terms of this Agreement are required to
be performed by it as a Bank. Effective upon the assignment of an interest
hereunder, Annex I hereto shall be amended by the Administrative Agent to
reflect such assignment.
(d) The Administrative Agent shall maintain at one of
its offices in The City of New York a copy of each Assignment and Acceptance
delivered to it and a register for the recordation of the names and addresses of
the Banks, and the commitments of, and principal amount of the Loans owing to,
each Bank pursuant to the terms thereof from time to time (the "Register"). The
entries in the Register shall be conclusive in the absence of manifest error,
and Holdings and the Borrower, the Administrative Agent, the Co-Agents and the
Banks may treat each
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Person whose name is recorded in the Register pursuant to the terms hereof as a
Bank hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrower, the Co-Agents and any Bank, at any
reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of a duly completed Assignment
and Acceptance executed by an assigning Bank and a permitted assignee together
with the Notes subject to such assignment, the processing and recordation fee
referred to in paragraph (b) above and the written consent of the Borrower to
such assignment if required pursuant to paragraph (b) above, the Administrative
Agent shall (i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii) give prompt notice
thereof to the Banks, the Co-Agents and the Borrower. Within five Business Days
after receipt of notice, each Borrower, at its own expense, shall execute and
deliver to the Administrative Agent, in exchange for the surrendered Notes, new
Notes under the Facility to the order of such assignee in a principal amount
equal to the principal amount of the Aggregate Commitment assumed by it pursuant
to such Assignment and Acceptance and, if the assigning Bank has retained any
portion of a Aggregate Commitment, new Notes under the Facility to the order of
such assigning Bank in a principal amount equal to the principal amount of Loans
retained by it. Such new Notes shall be in the aggregate principal amount equal
to the aggregate principal amount of such surrendered Notes; such new Notes
shall be dated the date of the surrendered Notes which they replace and shall
otherwise be in substantially the form of Exhibit G and Exhibit H, as
applicable. Canceled Notes shall be returned to the applicable Borrower.
(f) Each Bank may without the consent of the Borrower
or any Guarantor or the Administrative Agent or CoAgents sell participations to
one or more banks or other entities in all or a portion of its rights and
obligations under this Agreement (including all or a portion of the Loans owing
to it and the Notes held by it); provided, however, that (i) such Bank's
obligations under this Agreement (including its Pro Rata Share of the Aggregate
Commitment) shall remain unchanged, (ii) such Bank shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) the participating banks or other entities shall be entitled to the benefit
of the cost and yield protection provisions contained in Sections 2.11, 2.13,
2.18 and 3.4 to the same extent that the Bank from which such participating bank
or other entity acquired its participation would be entitled to the benefit of
such cost protection provisions (but shall not, in the aggregate, be entitled to
receive payments under such Sections in amounts in excess of the payments which
would have been made to the selling Bank had such participations not been sold)
and (iv) the Borrowers, the Administrative Agent, the Co-Agents and the other
Banks shall continue to deal solely and directly with such Bank
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in connection with such Bank's rights and obligations under this Agreement, and
such Bank shall retain the sole right to enforce the obligations of Holdings or
the Borrower relating to the Loans and to approve any amendment, modification or
waiver of any provision of this Agreement (other than amendments, modifications
or waivers with respect to reducing any Fees payable hereunder or reduce the
amount of principal of or decrease the rate at which interest is payable on the
Loans, or the dates fixed for payments of principal of or interest on the Loans
and changing or extending the Aggregate Commitment).
(g) Any Bank or participant may, in connection with
any assignment or participation or proposed assignment or participation pursuant
to this Section 11.3, disclose to the assignee or participant or proposed
assignee or participant any information relating to Holdings and any Subsidiary
furnished to such Bank by or on behalf of Holdings and such Subsidiary;
provided, however, that, prior to any such disclosure of information designated
by Holdings or any Subsidiary as confidential, each such assignee or participant
or proposed assignee or proposed participant shall execute an agreement whereby
such Person shall agree (subject to customary exceptions) to preserve the
confidentiality of such confidential information and to use such information
solely for purposes related to this Agreement.
(h) Any Bank may at any time assign all or any
portion of its rights under this Agreement and the Notes issued to such Bank
hereunder to a Federal Reserve Bank; provided, however, that no such assignment
shall release a Bank from any of its obligations hereunder.
(i) Neither the Borrower nor any Guarantor shall
assign or delegate any of its rights or duties hereunder without the prior
written consent of all of the Banks.
SECTION 11.4. Expenses of the Co-Agents and the Banks. The
Borrower agrees to pay all out-of-pocket expenses reasonably incurred by the
Administrative Agent associated with the arrangement of the credit facilities
hereunder (including printing, duplicating, mailing, advertising and similar
expenses), the preparation, execution and delivery of this Agreement and the
other Loan Documents (whether or not the transactions hereby contemplated shall
be consummated) or reasonably incurred by the Administrative Agent, any Co-Agent
or any Bank in connection with the enforcement or protection of its rights under
this Agreement, any other Loan Document or the Loans made and Letters of Credit
issued hereunder, including, but not limited to, the fees and disbursements of
▇'▇▇▇▇▇▇▇▇ Graev & Karabell, LLP, special counsel for the Administrative Agent,
the Co-Agents and the Banks, and in connection with such enforcement or
protection, the reasonable fees and disbursements of other counsel (including
in-house counsel) for the Banks. All amounts
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due under this Section 11.4 shall be payable on demand of any Bank therefor.
SECTION 11.5. Indemnification. (a) General. The Borrower
hereby agrees to indemnify and hold harmless the Administrative Agent, the
Co-Agents, the Banks and each of their respective officers, directors,
employees, counsel and agents (each, an "Indemnified Person") from and against
any and all losses, claims, damages and liabilities to which any Indemnified
Person may become subject (excluding any losses, claims, damages and liabilities
arising from gross negligence, willful misconduct, fraud or breach of fiduciary
duty owed to third parties on the part of such Indemnified Person or arising
from any assertion, putative or otherwise, as to the legal capacity or authority
of any Indemnified Person to execute and deliver this Agreement or in respect of
any law governing the corporate powers of any Indemnified Person to perform its
obligations hereunder) arising out of this Agreement, any other Loan Document,
the Facility or any Loans, Letters of Credit or other financial accommodations
thereunder, the use of the proceeds of any such Loans, Letters of Credit or
financial accommodations, the breach of any representation or covenant contained
herein or in any other Loan Document, any act or omission by the Administrative
Agent or the Co-Agents in connection herewith or with any of the foregoing
(including any claim asserted in any litigation, investigation or proceeding
relating to any of the foregoing, whether or not any Indemnified Person is a
party thereto), and to reimburse each Indemnified Person, upon written demand,
for all legal and other expenses incurred in connection with investigating or
defending any of the foregoing. The foregoing indemnity obligation shall not, as
to any Indemnified Person, apply to any loss, claim, damage or liability (i)
incurred by any Indemnified Person against any other Indemnified Person
hereunder, (ii) arising from the breach by any Indemnified Person of any of its
obligations to Holdings or the Borrower hereunder or (iii) arising out of any
commitment made by any Indemnified Person which would be breached by performance
of such Indemnified Person's obligations hereunder. Each Indemnified Person will
provide prompt written notice to the Borrower of its assertion of any claim or
the commencement of any legal action or proceeding against such Indemnified
Person related to the Facility or the transactions contemplated hereby.
(b) Environmental Indemnity. The Borrower hereby
agrees to indemnify, defend and hold harmless each Indemnified Person, from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, charges, expenses or disbursements (including
reasonable fees and expenses of counsel and the allocated cost of internal
counsel), which may be incurred by or asserted against an Indemnified Person in
connection with or arising out of any pending or threatened investigation,
litigation or proceeding, or any action taken by any Person, with respect to any
Environmental Claim
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arising out of or related to any property subject to a Mortgage in favor of the
Collateral Agent or any Bank. No action taken by legal counsel chosen by the
Collateral Agent or any Bank in defending against any such investigation,
litigation or proceeding or requested remedial, removal or response action shall
vitiate or any way impair the Borrower's obligation and duties hereunder to
indemnify and hold harmless the Indemnified Persons. In no event shall site
visit, observation, or testing by the Collateral Agent or any Bank be a
representation that Hazardous Materials are or are not present in, on, or under
the site, or that there has been or shall be compliance with any law,
regulation, or ordinance pertaining to Hazardous Materials or any other
Applicable Law. Neither the Borrower nor any Guarantor nor any other party is
entitled to rely on any site visit, observation, or testing by the Collateral
Agent or any Bank. Except as may be required by Applicable Law, neither the
Collateral Agent nor any Bank owes any duty of care to protect Holdings or any
Subsidiary or any other party against, or to inform Holdings or any Subsidiary
or any other party of, any Hazardous Materials or any other adverse condition
affecting any site or property. Except as may be required by Applicable Law,
neither the Collateral Agent nor any Bank shall be obligated to disclose to
Holdings or any Subsidiary or any other party any report or findings made as a
result of, or in connection with, any site visit, observation, or testing by the
Collateral Agent or any Bank.
(c) The provisions of this Section 11.5 shall remain
operative and in full force and effect regardless of the expiration of the term
of this Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the invalidity or unenforceability of any term or
provision of this Agreement or any other Loan Document or any investigation made
by or on behalf of the Administrative Agent, the Collateral Agent, the Co-Agents
or any Bank. All amounts due under this Section 11.5 shall be payable on written
demand therefor.
SECTION 11.6. Governing Law. (a) This Agreement and the Notes
shall be construed in accordance with and governed by the laws of the State of
New York.
(b) For all purposes of this Agreement or any other
Loan Document, and for all purposes of any suit or proceeding arising out of or
relating to the transactions contemplated hereby or thereby or for recognition
or enforcement of any judgment, the Borrower, each Guarantor, Chemical, Bank of
America and each Bank hereby submits to the personal jurisdiction of the courts
of the State of New York and the federal courts of the United States sitting in
New York City, and any appellate court from any such state or federal court, and
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in
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such New York court or, to the extent permitted by law, in such federal court.
The Borrower, each Guarantor, Chemical, Bank of America and each Bank hereby
agree that a final judgment in any such action or proceeding shall be conclusive
and may be enforced in any other jurisdiction by suit on the judgment or in any
other manner provided by law. Nothing in this Agreement shall affect any right
that any Bank or the Borrower may otherwise have to bring any action or
proceeding relating to this Agreement or any related matter against the Borrower
or its properties in the case of the Banks, or against any Bank, Chemical or
Bank of America, or their respective properties in the case of the Borrower, in
the courts of any jurisdiction.
(c) The Borrower, each Guarantor, Chemical, Bank of
America and each Bank hereby irrevocably and unconditionally waive, to the
fullest extent it may legally and effectively do so, (i) any objection which it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or any related matter in
any New York State or federal court located in New York and (ii) the defense of
an inconvenient forum to the maintenance of such action or proceeding in any
such court.
(d) The Borrower, Chemical, Bank of America and each
Bank hereby irrevocably consent to service of process by registered United
States mail, return receipt requested, as provided in Section 11.1. Nothing in
this Agreement will affect the right of any party to this Agreement to serve
process in any other manner permitted by law.
SECTION 11.7. Waivers; Amendments. (a) No failure or delay of
any Bank in exercising any power or right hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power, or
any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Banks hereunder are cumulative
and not exclusive of any rights or remedies which they would otherwise have. No
waiver of any provision of this Agreement or any other Loan Document or consent
to any departure by the Borrower therefrom shall in any event be effective
unless the same shall be authorized as provided in paragraph (b) below, and then
such waiver or consent shall be effective only in the specific instance and for
the purpose for which given. No notice or demand on the Borrower in any case
shall entitle the Borrower to any other or further notice or demand in similar
or other circumstances. Each Bank shall be bound by any amendment, modification,
waiver or consent authorized as provided herein, whether or not the Note issued
to such Bank shall have been marked to indicate such amendment, modification,
waiver or consent.
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(b) No Loan Document nor any provision thereof, nor
any provision of any Loan, may be waived, amended or modified except pursuant to
an agreement or agreements in writing entered into by the Borrower and the
Majority Banks; provided, however, that no such agreement shall (i) except for a
waiver of a Mandatory Prepayment under Section 2.8, change the principal amount
of, or extend or advance the maturity of or any date for the payment of any Note
or any Fee or Reimbursement Obligation or waive or excuse any such payment or
any part thereof, or change the rate of interest on any Note, without the
written consent of each Bank affected thereby, (ii) amend or modify the
provisions of this Section 11.7 or Article VIII or the definitions of "Interest
Period" and "Majority Banks", without the written consent of each Bank, or (iii)
release any material part of the Collateral (except as expressly permitted by
the applicable Financing Agreement) without the written consent of each Bank;
and provided, further, however, that no such agreement shall amend, modify or
otherwise affect the rights or duties of the Administrative Agent, Collateral
Agent or the Co-Agents under this Agreement or any other Loan Document without
the written consent of such Administrative Agent, Collateral Agent and CoAgents,
respectively.
SECTION 11.8. Severability. In the event any one or more of
the provisions contained in this Agreement or in any Note or other Loan Document
should be held invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein or
therein shall not in any way be affected or impaired thereby. The parties shall
endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions, the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 11.9. Counterparts. This Agreement may be executed in
two or more counterparts, each of which shall constitute an original but all of
which when taken together shall constitute but one contract, and shall become
effective when copies hereof which, when taken together, bear the signatures of
each of the parties hereto shall be delivered or mailed to the Administrative
Agent, the Collateral Agent, the Co-Agents, Holdings and the Borrower.
SECTION 11.10. Headings. Article and Section headings and the
Table of Contents used herein are for convenience of reference only and are not
to affect the construction of, or to be taken into consideration in
interpreting, this Agreement.
SECTION 11.11. Obligations of Banks Several. The rights and
obligations of the Banks under this Agreement and the other Loan Documents are
several and not joint. Nothing contained in this Agreement or any other Loan
Document and no
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action taken by any Bank or the Borrower pursuant hereto or thereto shall be
deemed to constitute the Banks as a partnership, association, joint venture or
other entity.
SECTION 11.12. Entire Agreement. This Agreement, together with
the agreements and documents referred to herein and the Fee Letters contain the
entire agreement of the parties and supersedes any and all prior agreements
among the parties with respect to the subject matter hereof.
SECTION 11.13. Confidentiality. (a) Each Bank agrees to keep
confidential (and to cause its respective officers, directors, employees,
agents, representatives and Affiliates to keep confidential) the Information (as
defined below), except that any Bank shall be permitted to disclose Information:
(i) to such of its officers, directors, employees, agents, representatives and
Affiliates (including outside counsel) as need to know such Information; (ii) to
the extent required by applicable laws and regulations or by any subpoena or
similar legal process, or requested by any bank regulatory authority (provided
that such Bank shall, except for Information requested by any such bank
regulatory authority, promptly notify Borrower (to the extent practicable and
lawful, notice shall be given to the Borrower before such disclosure is made so
as to permit Borrower to seek a protective order) of the circumstances and
content of each such disclosure and shall request confidential treatment of any
Information so disclosed); (iii) to the extent such Information (A) becomes
publicly available other than as a result of a breach of this Agreement, (B)
becomes available to such Bank on a non-confidential basis from a source other
than the Borrower or its Affiliates or (C) was available to such Bank on a
non-confidential basis prior to its disclosure to such Bank by the Borrower or
its Affiliates; or (iv) to the extent the Borrower shall have consented to such
disclosure in writing. As used in this Section 11.13, as to any Bank,
"Information" shall mean any financial statements, materials, documents and
other information that the Borrower or any of its Affiliates may have furnished
or may hereafter furnish to the Administrative Agent or any Bank in connection
with this Agreement or any other materials prepared by any such person from any
of the foregoing.
SECTION 11.14. Release of Certain Liens. The Collateral Agent,
on behalf of the Banks, shall execute and deliver to the Borrower any documents
or instruments reasonably required to release any Lien which was created for the
benefit of the Banks in connection with the Existing Facility but which covers
assets which are no longer Collateral for purposes of this Agreement and the
other Loan Documents.
* * * *
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their duly authorized officers, all as of the
day and year first above written.
MINERALS HOLDINGS INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Chairman, President and
Chief Executive Officer
WORLD MINERALS INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President, Finance
and Chief Financial Officer
CHEMICAL BANK,
individually and as
Administrative Agent and
Co-Agent
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: ASSISTANT VICE PRESIDENT
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
individually and as Co-Agent
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: VICE PRESIDENT
NATIONSBANK, N.A. (CAROLINAS)
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President