[EXECUTION COPY]
AMENDMENT AND RESTATEMENT OF
ARTICLES IV, V AND VI
OF THE OVERRIDE AGREEMENT
and
AMENDMENT AND RESTATEMENT OF
APPENDIX A, DEFINITIONS
dated as of February 15, 1996
by and among
DRAVO CORPORATION
DRAVO LIME COMPANY
DRAVO BASIC MATERIALS COMPANY, INC.
FIRST ALABAMA BANK
PNC BANK, NATIONAL ASSOCIATION
BANK OF AMERICA ILLINOIS
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
AMENDMENT AND RESTATEMENT
THIS AMENDMENT AND RESTATEMENT, dated as of February 15, 1996
is entered into by and among FIRST ALABAMA BANK ("FAB"), PNC BANK,
NATIONAL ASSOCIATION (f/k/a Pittsburgh National Bank) ("PNC"), BANK
OF AMERICA ILLINOIS ("BAI"), THE PRUDENTIAL INSURANCE COMPANY OF
AMERICA ("Prudential"); FAB, PNC, BAI and Prudential herein
collectively referred to as "Lenders" and each a "Lender") and DRAVO
CORPORATION, a Pennsylvania corporation ("Dravo"), DRAVO LIME
COMPANY, a Delaware corporation ("Lime") and DRAVO BASIC MATERIALS
COMPANY, INC., an Alabama corporation ("Basic"; Lime and Basic are
sometimes hereinafter collectively referred to as the "Companies").
PRELIMINARY STATEMENTS
(1) The Companies, Dravo and the Lenders have entered into
an Override Agreement, dated as of January 21, 1992, as amended by
the First Amendment to Override Agreement, dated March 10, 1993, the
Second Amendment to Override Agreement, dated as of March 7, 1994,
the Amendment Agreement, dated as of August 1, 1994, the Amendment
Agreement, dated as of January 3, 1995 and the Amendment Agreement
dated as of December 31, 1995 (as so amended and amended, modified
or supplemented from time to time, the "Override Agreement"). In
addition, the Companies, the Agent and the Lenders have entered into
an Amended and Restated Revolving Credit Agreement, dated as of
January 21, 1992, as amended by the First Amendment to Amended and
Restated Revolving Credit Agreement, dated as of March 7, 1994, by
the Amendment Agreement dated as of August 1, 1994, the Amendment
Agreement dated as of January 3, 1995 and the Amendment Agreement
dated as of December 31, 1995 (as so amended and amended, modified
or supplemented from time to time, the "Revolving Credit
Agreement"). Capitalized terms used but not defined herein shall
have the meanings assigned to such terms in the Override Agreement,
as amended hereby.
(2) The parties hereto desire to amend and restate Articles
IV, V and VI of the Override Agreement and Appendix A.
In consideration of the mutual agreements herein contained and
other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto hereby agree to
amend and restate Articles IV, V and VI of the Override Agreement as
follows and Appendix A as attached hereto.
ARTICLE I
AMENDMENT AND RESTATEMENT
SECTION 1.01. Amendment and Restatement of Articles IV, V and
VI. Each of the following Articles IV, V and VI of the Override
Agreement shall be amended and restated in full as follows:
ARTICLE IV
UNIFORM AFFIRMATIVE COVENANTS
SECTION 4.01. Dravo Parties Affirmative Covenants. So long
as a Lender shall hold any Note or Notes or any Secured Obligation
remains outstanding, the Dravo Parties shall comply with the
following:
(a) Financial Statements. Each of the Dravo Parties
will deliver in triplicate to each Lender (or any other holder
of any Note or Notes) so long as such Lender (or holder) shall
hold any Note or Notes:
(i) as soon as practicable and in any event
within 45 days after the end of each quarterly period in
each fiscal year, consolidating and consolidated
statements of income and cash flows, of such corporation
and its Subsidiaries for the period from the beginning
of the current fiscal year to the end of such quarterly
period, and a consolidating and consolidated balance
sheet of such corporation and its Subsidiaries as at the
end of such quarterly period, setting forth in each case
in comparative form figures for the corresponding period
in the preceding fiscal year, all in reasonable detail
and certified by an authorized financial officer of such
corporation, subject to changes resulting from normal
year-end adjustments;
(ii) as soon as practicable and in any event
within 90 days after the end of each fiscal year,
consolidating and consolidated statements of income and
cash flows and a consolidated statement of stockholders'
equity of such corporation and its Subsidiaries for such
year, and a consolidating and consolidated balance sheet
of such corporation and its Subsidiaries as at the end
of such year, setting forth in each case in comparative
form corresponding consolidated figures from the
preceding annual audit, all in reasonable detail and
satisfactory in form to each of the Lenders and, as to
the consolidated statements, reported on by independent
public accountants of recognized national standing
selected by such Dravo Party whose report shall be
without limitation as to the scope of the audit and
satisfactory in substance to the Majority Lenders and,
as to the consolidating statements, certified by an
authorized financial officer of such Dravo Party;
(iii) promptly upon transmission thereof,
copies of all such financial statements, proxy
statements, notices and reports as it shall send to its
stockholders and copies of all registration statements
(without exhibits) and all reports which it files with
the Securities and Exchange Commission (or any
governmental body or agency succeeding to the functions
of the Securities and Exchange Commission);
(iv) as soon as is practicable and in any event
prior to the end of each fiscal year, a projected income
statement, balance sheet and cash flow statement for
each of the Dravo Parties for the ensuing fiscal year,
setting forth in each case figures on an annual basis in
reasonable detail and certified by an authorized
financial officer of each such corporation;
(v) promptly upon receipt thereof, a copy of
each other report submitted to such corporation or any
Subsidiary by independent accountants in connection with
any annual, interim or special audit made by them of the
books of such corporation or any Subsidiary;
(vi) upon the request of a holder of any Note,
provide such holder, and any qualified institutional
buyer designated by such holder, such financial and
other information as such holder may reasonably
determine to be necessary in order to permit compliance
with the information requirements of Rule 144A under the
Securities Act in connection with the resale of Notes,
except at such times as Dravo is subject to the
reporting requirements of section 13 or 15(d) of the
Exchange Act. For the purpose of this clause (vi), the
term "qualified institutional buyer" shall have the
meaning specified in Rule 144A under the Securities Act;
(vii) with reasonable promptness, such other
financial data as any Lender may reasonably request; and
(viii) a report, delivered not less
frequently than once during each period of four
consecutive months, of the General Counsel of Dravo that
describes and evaluates all pending litigation against
any Dravo Party where the amount of potential loss could
exceed $5,000,000. Each such report should include a
brief description of the events that have occurred in
such litigation since the date of the last report,
including, without limitation, the occurrence and/or
outcome of any motions for summary judgment, discovery
motions, substantive discovery responses, or motions for
final adjudication. In addition, at the request of any
Lender, each Dravo Party shall, at its expense, provide
each Lender, and its outside counsel, an opportunity to
receive copies of all documentation received or prepared
in connection with any such litigation, and to discuss
the status thereof with the General Counsel of Dravo and
the outside counsel of any such Dravo Party handling
such matter. Notwithstanding the foregoing, at no time
shall any Dravo Party or its counsel be required to make
any disclosure or provide any access to information
pursuant to this paragraph which would result in the
loss to such Dravo Party of any privilege against
disclosure generally recognized under law.
Together with each delivery of financial statements required
by clauses (i) and (ii) above, each of the Dravo Parties will
deliver to each Lender (addressed to it) a Compliance Certificate,
in the form of Exhibit O hereto, demonstrating (with computations in
reasonable detail except to the extent specifically set forth in
such financial statements) compliance by the Dravo Parties with
Section 4.02(b), 5.01(a), (b), (c)(i), (c)(ii) and (d), and stating
that there exists no Default or Event of Default, or, if any such
Default or Event of Default exists, specifying the nature thereof,
the period of existence thereof and what action such corporation
proposes to take with respect thereto.
Together with each delivery of financial statements required
by clause (ii) above, each of the Dravo Parties will deliver to each
Lender a certificate of said accountants stating that, in making the
audit necessary to the certification of such financial statements
they have obtained no knowledge of any Default or Event of Default,
or, if any such Default or Event of Default exists, specifying the
nature and period of existence thereof. Such accountants, however,
shall not be liable to anyone by reason of their failure to obtain
knowledge of any Default or Event of Default which would not be
disclosed in the course of an audit conducted in accordance with
generally accepted auditing standards. Each Lender is hereby
authorized to deliver a copy of any financial statement delivered to
such Lender pursuant to this Section 4.01(a) to any regulatory body
having jurisdiction over such Lender.
Each of the Dravo Parties also covenants that forthwith upon
the chief executive officer, principal financial officer or
principal accounting officer of such Dravo Party obtaining knowledge
of:
(i) a Default or an Event of Default;
(ii) a material adverse change in the financial
condition, business or operations of such Dravo Party and its
Subsidiaries, taken as a whole;
(iii) the institution of legal proceedings against such
Dravo Party and/or any Subsidiary, which has a reasonable
possibility of materially adversely affecting the financial
condition, business or operations of such Dravo Party and its
Subsidiaries, taken as a whole or which in any manner draws
into question the validity of or has a reasonable possibility
of impairing the ability of such Dravo Party to perform its
obligations under this Agreement or any of the other Operative
Documents to which it is a party;
(iv) the occurrence of any default under any agreement
or note evidencing borrowed money;
(v) the occurrence of any other event that reasonably
could impair the ability of such Dravo Party to meet its
obligations hereunder or under any other Operative Document;
or
(vi) any (A) Environmental Liabilities, (B) pending,
threatened or anticipated Environmental Proceedings, (C)
Environmental Notices, (D) Environmental Judgments and Orders,
or (E) Environmental Releases at, on, in, under or in any way
materially affecting the Properties;
such Dravo Party will deliver to the Lenders an Officer's
Certificate specifying the nature and period of existence thereof
and what action such Dravo Party has taken, is taking or proposes to
take with respect thereto.
(b) Inspection of Property. Each of the Dravo Parties
covenants that, so long as a Lender shall hold any Note or Notes,
any of them will permit any person designated by such Lender in
writing, at the expense of such Dravo Party, to visit and inspect
any of the properties of any such Dravo Party and its Subsidiaries,
to examine the corporate books and financial records of any such
Dravo Party and its Subsidiaries and make copies thereof or extracts
therefrom and to discuss the affairs, finances and accounts of any
such corporation with the principal officers and independent public
accountants of such corporation, all at such reasonable times and
upon such reasonable notice and as often as such Lender may
reasonably request.
(c) Secure Notes Equally. Each of the Dravo Parties
covenants that, if any of the Dravo Parties creates or assumes any
Lien upon any of its property or assets, whether now owned or
hereafter acquired, other than Liens excepted by the provisions of
Section 5.03(a)(i) (unless prior written consent to the creation or
assumption thereof shall have been obtained pursuant to Section
8.02), it will make or cause to be made effective provisions whereby
the Notes then outstanding will be further secured by such Lien
equally and ratably with any and all other debt thereby secured as
long as such other debt shall be so secured.
(d) Guaranteed Obligations. Each of the Dravo Parties
covenants that if, at any time after the date hereof, it or any of
its Subsidiaries incurs or permits to exist any Debt or other
obligation guaranteed or collateralized in any other manner by any
Person, it will simultaneously cause such Person to execute and
deliver to each holder of any Note a guaranty agreement in form and
substance satisfactory to such holder guaranteeing payment of the
principal amount of the Notes and any premium and interest thereon,
which bears the same ratio to the total unpaid principal amount of
the Notes as the amount of such other obligation which is guaranteed
bears to the total unpaid principal amount of such other obligation,
or if such other obligation is collateralized, to collateralize the
Notes equally and ratably with such other obligation.
(e) Maintenance of Insurance. Each of the Dravo Parties
will maintain, and will cause each of its Subsidiaries to maintain,
with responsible insurers, insurance with respect to its properties
and business against such casualties and contingencies (including
public liability, larceny, embezzlement or other criminal
misappropriation) and in such amounts as is customary in the case of
similarly situated corporations engaged in the same or similar
businesses, and, if requested in writing by a Lender, together with
each delivery of financial statements under clause (ii) of Section
4.01(a) each of the Dravo Parties will deliver an Officer's
Certificate specifying the details of such insurance in effect.
(f) Taxes. Neither Dravo nor either of the Companies nor
any Subsidiary thereof will file, or cause to be filed, any federal
income tax return inconsistent with the representation contained in
Section 7.01(e).
(g) Maintenance of Corporate Existence/Compliance with
Law/Preservation of Property. Except as allowed under Section
5.03(a)(iii) or 5.03(a)(iv), each of the Dravo Parties covenants
that it and each Subsidiary (other than Discontinued Subsidiaries)
will do or cause to be done all things necessary to preserve, renew
and keep in full force and effect the corporate existence of such
Dravo Party and its Subsidiaries (other than Discontinued
Subsidiaries) and comply in all material respects with all laws and
regulations (including, without limitation, laws and regulations
relating to equal employment opportunity and employee safety)
applicable to it and its Subsidiaries (other than Discontinued
Subsidiaries), the failure with which to comply would have a
reasonable possibility of materially adversely affecting the
business, operations or financial condition of such Dravo Party and
its Subsidiaries (other than Discontinued Subsidiaries), taken as a
whole; at all times maintain, preserve and protect all material
intellectual property of such Dravo Party and its Subsidiaries
(other than Discontinued Subsidiaries), and preserve all the
remainder of its material property used or useful in the conduct of
its business and keep the same in good repair, working order and
condition.
(h) Compliance with Environmental Laws. Each of the Dravo
Parties will, and will cause each of its Subsidiaries to, comply in
a timely fashion with, or operate pursuant to valid waivers of the
provisions of, all Environmental Requirements including, without
limitation, the emission of wastewater effluent, solid and hazardous
waste and air pollution, and establishing general environmental
conditions, together with any other applicable requirements for
conducting, on a timely basis, periodic tests and monitoring for
contamination of ground water, surface water, air and land and for
biological toxicity of the aforesaid, and diligently comply with the
regulations (except to the extent such regulations are waived by
appropriate governmental authorities) of the Environmental
Protection Agency or other relevant federal, state or local
governmental authority, except where the failure to do so would not
have a reasonable possibility of materially adversely affecting the
business, operations or financial condition of such Dravo Party and
its Subsidiaries, taken as a whole.
(i) Appraisals. From time to time, a Lender or Lenders may
commission or obtain an appraisal of the property covered by the
Lime Mortgages by an appraiser satisfactory to such Lender or
Lenders and in compliance with the standards of the Member Appraisal
Institute and may commission or obtain such other valuations as a
Lender or Lenders may reasonably require from time to time.
(j) Additional Mortgage Conveyances. Upon the acquisition
by any Dravo Party of any additional properties located adjacent to,
or used or usable in connection with the operations of the Dravo
Parties on, the property covered by the Lime Mortgages or the
commencement of any such operations thereon by the Dravo Parties,
then, upon the request of a Lender or Lenders, the Dravo Parties
shall convey or cause to be conveyed duly authorized, executed and
delivered mortgages on such properties (or, at the option of
Lenders, modifications to the existing mortgages) in order to cause
such additional properties to be subjected to the lien and
encumbrance of the applicable Lime Mortgages. In connection with
any such conveyance, the Dravo Parties shall also deliver the items
described in Section 3.01(e), "Real Estate Documents", hereof with
respect to such additional property and the mortgage conveyance of
such additional property.
(k) Consents. The Dravo Parties will obtain on or prior to
March 31, 1996 the consent of (1) Ohio Power Company to the
assignment by Dravo Black River Limited Partnership to Lime of the
Lime Supply Agreement dated June 21, 1993 between Lime and Ohio
Power Company and (2) Svedala Industries, Inc. to the assignment by
Dravo Black River Limited Partnership to Lime of the Agreement,
dated as of August 27, 1993, as amended, by and between Svedala
Industries, Inc., through its Xxxxxxx Xxx Xxxx division, and Lime.
SECTION 4.02 Dravo Additional Covenants. So long as a Lender
shall hold any Note or Notes or any Secured Obligation remains
outstanding, Dravo shall comply with the following.
(a) Ancillary Reports. Dravo shall deliver to each Lender
the following reports in triplicate:
(i) a monthly balance sheet, income statement and cash
flow statement for Dravo and its Subsidiaries prepared by
Dravo, within thirty days after the close of each calendar
month; provided, however, that delivery of the Directors
Report shall be deemed to satisfy the requirements of this
clause; and
(ii) for each of Dravo's fiscal quarters commencing
with the fiscal quarter ending March 31, 1996, a report
listing all letters of credit then issued and outstanding on
behalf of Dravo and its Subsidiaries, as well as the amount of
and issuing institution for each such letter of credit, within
thirty days after the close of each such quarter.
(b) Fixed Charge Test. Dravo shall cause the Fixed Charge
Coverage Ratio of Dravo and its Subsidiaries as at the end of each
of Dravo's fiscal quarters to equal or exceed 1.25 from the
Effective Date to and including December 31, 1996 and 1.5
thereafter.
(c) Mandatory Payments of Note Receivable. Dravo shall make
the repayments required under the Note Receivable.
ARTICLE V
UNIFORM NEGATIVE COVENANTS
SECTION 5.01. Dravo Negative Covenants. So long as a Lender
shall hold any Note or Notes or any Secured Obligation remains
outstanding, Dravo shall comply with each of the following.
(a) Net Worth Requirements. Dravo will not permit its
Consolidated Net Worth at any time to be less than $90,784,000 (the
"Base Amount") as of the Effective Date hereof and as of each
quarter ending thereafter to be less than a sum equal to the Base
Amount plus 50% of Consolidated Net Earnings available to common
shareholders (to the extent this is a positive number) for each
quarter ending after the Effective Date.
(b) Dividend Restrictions. Dravo shall not: (x) pay or
declare any dividend on any class of its stock or make any other
distribution on account of any class of its stock (referred to
herein collectively as "Dividends") or (y) make, directly or
indirectly (including by a Subsidiary of Dravo), any Excess
Redemption (all Dividends and Excess Redemptions collectively
referred to herein as "Dravo Restricted Payments") if such Dravo
Restricted Payments, taken together with all other Dravo Restricted
Payments made on or after September 30, 1995, would exceed 25% of
Consolidated Net Earnings from Continuing Operations after
September 30, 1995. There shall not be included in Dravo Restricted
Payments (x) Dividends paid, or distributions made, in stock of
Dravo; or (y) exchanges of stock of one or more classes of Dravo for
common stock of Dravo or for stock of Dravo of the same class,
except to the extent that cash or other value is involved in such
exchange; or (z) the payment of regularly scheduled dividends on the
Shares or the Preferred Stock Series B originally issued to the
Xxxxxxxx estate ("Xxxxxxxx Shares"). The term "stock" as used in
this Section 5.01(b) shall include warrants or options to purchase
stock. Notwithstanding the foregoing, Dravo shall not make a Dravo
Restricted Payment if a Default or Event of Default has occurred or
would occur as a result of such Dravo Restricted Payment. As used
herein, the term "Excess Redemption" means any redemption, purchase
or other acquisition of any shares of the capital stock of Dravo in
an amount exceeding the cash proceeds received by Dravo in
connection with any issuance or sale of any capital stock (including
without limitation any preferred stock) of Dravo in an amount
exceeding cash proceeds received by Dravo (net of all reasonable
costs and expenses incurred by Dravo in connection with such
issuance of capital stock) occurring after September 30, 1995.
(c) Debt. Dravo shall not, and shall not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist;
(i) any Debt in excess of 50% of Dravo Consolidated
Net Tangible Assets from the Effective Date hereof to and
including December 31, 1996 and 45% of Dravo Consolidated Net
Tangible Assets thereafter; or
(ii) any Debt so that the ratio of Debt to EBDIAT would
exceed 3.25 to 1.0 from the Effective Date hereof to and
including December 31, 1996 and 3.0 to 1.0 thereafter.
(d) Secured Debt. Dravo shall not, and shall not permit any
of its Subsidiaries to, create, incur, assume or suffer to exist at
any time the aggregate of (i) any secured Debt (other than the
Secured Obligations) plus (ii) an amount equal to the greater of the
fair market value or acquisition cost of any additional real estate
(plus improvements) acquired by a Person (other than a Dravo Party)
for the benefit of any Dravo Party or any affiliate thereof located
adjacent to, or used or usable in connection with the operations of
the Dravo Parties on, the property covered by the Lime Mortgages, in
excess of 7% of Dravo Consolidated Net Tangible Assets.
SECTION 5.02. Companies Negative Covenants. So long as a
Lender shall hold any Note or Notes or any Secured Obligation
remains outstanding, neither of the Companies shall make any payment
to Dravo with respect to or on account of the Dravo affiliated
group's consolidated federal income tax liability ("Dravo
Consolidated Tax Liability") in excess of the amount of such tax
liability that would have been apportioned to such Company had
Section 1552(a)(1) of the Code and Treasury Regulation
31.155201(a)(1) been used to determine each such Company's tax
liability. In addition, no payment shall be made by any Other
Subsidiary or any Subsidiary of the Companies to Dravo with respect
to or on account of the Dravo Consolidated Tax Liability. No
intercompany account or indebtedness owing from the Companies or
their Subsidiaries shall be created in connection with any tax
sharing agreement or arrangement with respect to or on account of
the Dravo Consolidated Tax Liability and any such intercompany
account or indebtedness that may have been created prior to the date
hereof shall be, and hereby is, contributed to the capital of the
Companies and each such Company is thereby released from any further
liability arising in connection with such intercompany account or
indebtedness.
SECTION 5.03. Dravo Parties Negative Covenants. So long as
a Lender shall hold any Note or Notes or any Secured Obligation
remains outstanding, each of the Dravo Parties shall comply with
each of the following:
(a) Liens and Other Restrictions. None of the Dravo
Parties will, nor will any of them permit any Subsidiary to:
(i) Liens. Create, assume or suffer to exist
any Lien upon any of its property or assets, whether now
owned or hereafter acquired (whether or not provision is
made for the equal and ratable securing of the Notes in
accordance with the provisions of Section 4.01(c)),
except
(A) Liens for taxes not yet due or that
(a) are being actively contested in good faith by
appropriate proceedings diligently contesting
such obligations, and (b) would not have a
material and adverse effect on the business,
conditions, operations or prospects of such
corporation in the event that the underlying
obligations for such Liens were not paid,
(B) other Liens incidental to the conduct
of its business or the ownership of its property
and assets which were not incurred in connection
with the borrowing of money or the obtaining of
advances or credit, and which do not in the
aggregate materially detract from the value of
its property or assets or materially impair the
use thereof in the operation of its business,
(C) Liens on property or assets of a
Subsidiary to secure its obligations to the Dravo
Party (other than Dravo) of which it is a
Subsidiary or another Subsidiary of such Dravo
Party (other than Dravo),
(D) any Lien existing on any property of
any corporation at the time it becomes a
Subsidiary of such Dravo Party, or existing prior
to the time of acquisition upon any property
acquired by such Dravo Party or any Subsidiary of
such Dravo Party through purchase, merger or
consolidation or otherwise, whether or not
assumed by such Dravo Party or such Subsidiary,
or placed upon property at the time of
acquisition by such Dravo Party or any Subsidiary
of such property to secure all or a portion of
(or to secure Debt incurred to pay all or a
portion of) the purchase price thereof, provided
that (a) any such Lien shall not encumber any
other property of such Dravo Party or such
Subsidiary, and (b) the amount secured by each
such Lien shall not exceed, at the time such
corporation becomes a Subsidiary of such Dravo
Party or at the time of acquisition of such
property by such Dravo Party or a Subsidiary of
such Dravo Party or at the time of any renewal,
extension or refunding of such Lien, 75% of the
lower of either the cost or market value of the
property being acquired,
(E) any liens securing Debt of such Dravo
Party or a Subsidiary of such Dravo Party
incurred in connection with an industrial revenue
bond or pollution control revenue bond financing
of the facilities or equipment to be occupied or
operated by such Dravo Party or such Subsidiary,
(F) any Lien renewing, extending or
refunding any Lien permitted by clauses (D) and
(E) of this Section 5.03(a)(i), provided that the
amount secured shall not be increased, and the
Lien shall not be extended to other property,
(G) Liens created or permitted by any
Operative Document entered into in connection
with this Agreement , and
(H) Liens set forth in Schedule
5.03(a)(i) hereto;
(ii) Loans, Advances, Investments and Contingent
Liabilities. Make or permit to remain outstanding any
loan or advance to, or Guarantee, endorse or otherwise
be or become contingently liable, directly or
indirectly, in connection with the obligations, stock or
dividends of, or own, purchase or acquire any stock,
obligations or securities of, or any other interest in,
or make any capital contribution to, any Person, except
that such Dravo Party or any Subsidiary of such Dravo
Party may
(A) own, purchase or acquire stock,
obligations or securities of a Subsidiary of such
Dravo Party or of a corporation which immediately
after such purchase or acquisition will be a
Subsidiary of such Dravo Party,
(B) acquire and own stock, obligations or
securities received in settlement of debts
(created in the ordinary course of business)
owing to such Dravo Party or any Subsidiary of
such Dravo Party,
(C) own, purchase or acquire prime
commercial paper and certificates of deposit in
United States commercial banks (having capital
surplus in excess of $100,000,000), in each case
due within one year from the date of purchase and
payable in the United States in Dollars,
obligations of the United States Government or
any agency thereof, and obligations guaranteed by
the United States Government, and repurchase
agreements of such banks for terms of less than
one year in respect to the foregoing certificates
and obligations,
(D) endorse negotiable instruments for
collection in the ordinary course of business,
(E) guarantee Debt of a Subsidiary of
such Dravo Party which is permitted by Section
5.01(d),
(F) make or permit to remain outstanding
travel and other like advances to officers and
employees in the ordinary course of business,
(G) make or permit to remain outstanding
loans or advances to, or Guarantee, endorse or
otherwise be or become contingently liable in
connection with the obligations, stock or
dividends of, or own, purchase or acquire stock,
obligations or securities of, any other Person,
provided that the aggregate principal amount of
such loans and advances, excluding the aggregate
amount of all loans made pursuant to clause (H)
of this Section 5.03(a)(ii), plus the aggregate
amount of such contingent liabilities, plus
(without duplication) the aggregate amount of
liabilities permitted by clauses (A) and (E) of
Section 5.03(a)(viii), plus the aggregate amount
of the investment (at original cost) in such
stock, obligations and securities shall not
exceed $5,000,000 for the Dravo Parties and their
Subsidiaries on a combined basis (excluding from
such amount those letters of credit for which the
Dravo Parties are liable on the Closing Date as
set forth in Schedule 5.03(a)(ii)(G) hereto as
well as any term obligation or obligations into
which such letters of credit may be converted) at
any time outstanding, and further provided that
no Subsidiary of such Dravo Party shall make any
loan or advance to, or acquire any stock,
obligations or securities of, such Dravo Party,
(H) with respect to the Companies, make
loans to Dravo from time to time to the extent
permitted under Section 5.02(a)(iv) hereof;
provided, however, that notwithstanding anything
to the contrary provided in this Section, all
such loans made by the Companies, and Dravo's
obligations to the Companies resulting from such
loans, shall be evidenced at all times by a note
or notes which (i) shall be in form and substance
satisfactory to the Majority Lenders, and
(ii) shall be pledged to the Collateral Agent on
behalf of the Lenders pursuant to the Companies
Pledge Agreement,
(I) allow to exist loans, guarantees,
investments or contingent liabilities outstanding
on the Closing Date and set forth on Schedule
5.03(a)(ii)(I);
(iii) Sale of Stock and Debt of Subsidiaries.
Sell or otherwise dispose of, or part with control of,
any shares of stock or Debt of any Subsidiary of such
Dravo Party, except to such Dravo Party or another
Subsidiary of such Dravo Party, and except that all
shares of stock and Debt of any Subsidiary of such Dravo
Party at the time owned by or owed to such Dravo Party
and its Subsidiaries may be sold as an entirety for a
cash consideration which represents the fair value (as
determined in good faith by the Board of Directors of
such Dravo Party) at the time of sale of the shares of
stock and Debt so sold, provided that the assets of such
Subsidiary do not constitute more than 10% of the
consolidated assets of Dravo and all of its Subsidiaries
and that the earnings of such Subsidiary shall not have
contributed more than 10% of the Consolidated Net
Earnings of Dravo and its Subsidiaries for any of the
three fiscal years then most recently ended, and further
provided that, at the time of such sale, such Subsidiary
shall not own, directly or indirectly, any shares of
stock or Debt of any other Subsidiary of such Dravo
Party (unless all of the shares of stock and Debt of
such other Subsidiary owned, directly or indirectly, by
such Dravo Party and all of its Subsidiaries are
simultaneously being sold in a transaction permitted by
this Section 5.03(a)(iii)); provided, however, that the
foregoing provisions of this Section 5.03(a)(iii) shall
not apply to any Discontinued Subsidiary.
(iv) Merger and Sale of Assets. Merge or
consolidate with any other corporation or sell, lease or
transfer or otherwise dispose of assets constituting
more than 10% of the consolidated assets of the Dravo
Parties and their Subsidiaries on a combined basis, or
assets which shall have contributed more than 10% of the
Dravo Consolidated Net Earnings for any of the three
fiscal years then most recently ended, to any Person,
except that so long as no Default or Event of Default
shall have occurred and be continuing;
(A) any Subsidiary of Basic or Lime may
merge with that Company of which it is a
Subsidiary (provided that such Company shall be
the continuing or surviving corporation) or with
any one or more other Subsidiaries of such
Company,
(B) any Subsidiary of Basic or Lime may
sell, lease, transfer or otherwise dispose of any
of its assets to that Company of which it is a
Subsidiary or another Subsidiary of such Company,
(C) any Subsidiary may sell or otherwise
dispose of all or substantially all of its assets
to any Person other than Dravo subject to the
conditions specified in Section 5.03(a)(iii) with
respect to a sale of the stock of such
Subsidiary, and
(D) a Dravo Party may merge or
consolidate with any other corporation, provided
that (i) such Dravo Party shall be the continuing
or surviving corporation or the continuing or
surviving corporation shall assume all
obligations of such Dravo Party under the
Operative Documents (pursuant to documents
acceptable to the Lenders) and, in any case, the
merged or consolidated corporation is at the time
of such merger or consolidation in a line of
business related to that of such Dravo Party or
any Subsidiary thereof, and (ii) such corporation
as the continuing or surviving corporation shall
not, immediately after such merger or
consolidation, be in default under this Agreement
or the other Operative Documents, including all
covenants herein and therein contained;
(v) Sale and Lease-Back. Enter into or
permit to remain in effect any arrangement with any
lender or investor or to which such lender or investor
is a party providing for the leasing by a Dravo Party or
any Subsidiary thereof of real or personal property
which has been or is to be sold or transferred by such
Dravo Party or any Subsidiary thereof to such lender or
investor or to any Person to whom funds have been or are
to be advanced by such lender or investor on the
security of such property or rental obligations of such
Company or any Subsidiary thereof;
(vi) Sale or Discount of Receivables. Sell
with recourse, or discount or otherwise sell for less
than the face value thereof, any of its notes or
accounts receivable except for those notes or accounts
receivable which have been past due for 90 days or more
and transferred in the ordinary course for collection
purposes;
(vii) Certain Contracts. Enter into or be a party
to
(A) any contract providing for the making
of loans, advances or capital contributions to
any Person other than a Subsidiary of such Dravo
Party (except where the obligation is limited to
a fixed maximum amount which is within the
limitations of clause (H) of Section 5.03(a)(ii),
or the obligation is one incurred in connection
with the making of any loan or loans pursuant to
clause (I) of Section 5.03(a)(ii)), or for the
purchase of any property from any Person, in each
case in order to enable such Person to maintain
working capital, net worth or any other balance
sheet condition or to pay debts, dividends or
expenses, or
(B) any contract for the purchase of
materials, supplies or other property or services
if such contract (or any related document)
requires that payment for such materials,
supplies or other property or services shall be
made regardless of whether or not delivery of
such materials, supplies or other property or
services is ever made or tendered, or
(C) any contract to rent or lease (as
lessee) any real or personal property if such
contract (or any related document) provides that
the obligation to make payments thereunder is
absolute and unconditional under conditions not
customarily found in commercial leases then in
general use or requires that the lessee purchase
or otherwise acquire securities or obligations of
the lessor, or
(D) any contract for the sale or use of
materials, supplies or other property, or the
rendering of services, if such contract (or any
related document) requires that payment for such
materials, supplies or other property, or the use
thereof, or payment for such services, shall be
subordinated to any indebtedness (of the
purchaser or user of such materials, supplies or
other property or the Person entitled to the
benefit of such services) owed or to be owed to
any Person, or
(E) any other contract which, in economic
effect, is substantially equivalent to a
Guarantee, except as permitted by clause (D) of
Section 5.03(a)(ii) or where the obligation is
limited to a fixed maximum amount which is within
the limitations of clause (H) of Section
5.03(a)(ii);
(viii) Transactions With Stockholders.
Directly or indirectly purchase, acquire or lease any
property from, or sell, transfer or lease any property
to, or otherwise deal with, in the ordinary course of
business or otherwise (i) any Affiliate, or (ii) any
Substantial Stockholder, provided that (a) such acts and
transactions prohibited by this Section 5.03(a)(viii))
may be performed or engaged in if made upon terms not
less favorable to a Company than if no such relationship
described in clauses (i) and (ii) above existed, (b) a
Company may sell to, or purchase (within the limitations
of Section 5.03(b)) from any such Person shares of such
Company stock, and (c) such Company may pay management
fees (within the limitations of Section 5.03(b)) to any
such Person;
(b) Issuance of Stock. Neither of the Companies
(either directly, or indirectly by the issuance of rights or
options for, or securities convertible into, such shares) will
issue, sell or otherwise dispose of any shares of any class of
its stock, except to Dravo or the other Company, and Dravo and
the Companies will at all such times own l00% of the issued
and outstanding stock of all classes of each of the Companies,
and neither of the Companies will permit any of its
Subsidiaries (either directly, or indirectly by the issuance
of rights or options for, or securities convertible into, such
shares) to issue, sell or otherwise dispose of any shares of
any class of its stock except to such Company or another
Subsidiary of such Company.
(c) Environmental Matters. Each of the Dravo Parties
covenants that it will not, and will not permit any Third
Party to, use, produce, manufacture, process, generate, store,
dispose of, manage at, or ship or transport to or from the
Properties any Hazardous Materials except for Hazardous
Materials used, produced, manufactured, processed, generated,
stored, disposed of, released or managed in the ordinary
course of business in compliance in all material respects with
all applicable Environmental Requirements and except for
Hazardous Materials released in amounts which do not require
investigation or remediation pursuant to applicable
Environmental Requirements.
(d) Liabilities of DNRC. Each of the Dravo Parties
covenants that it will not allow DNRC to incur liabilities for
any purpose other than as set forth in Section 1 of the DNRC
Agency Agreement or allow any Person other than DNRC to
perform the duties set forth in Section 1 of the DNRC Agency
Agreement or amend the DNRC Agency Agreement without the prior
written consent of the Lenders.
ARTICLE VI
UNIFORM EVENTS OF DEFAULT
SECTION 6.01. Uniform Events of Default. If any of the
following events shall occur and be continuing for any reason
whatsoever (and whether such occurrence shall be voluntary or
involuntary or come about or be effected by operation of law or
otherwise):
(a) either of the Companies defaults in the payment of
any principal of any Note when the same shall become due,
either by the terms thereof or otherwise as herein provided;
or
(b) either of the Companies defaults in the payment of
any interest or premium, if any, on any Note or any other
amount due under any Operative Document for more than 10 days
after the date due; or
(c) any of the Dravo Parties or any Subsidiary of any
of the Dravo Parties defaults in payment of principal of or
interest on any other obligation for money borrowed of
$100,000 or more, including, without limitation, on any
obligation arising under the Convertible Notes (or any
Capitalized Lease Obligation, any obligation under a
conditional sale or other title retention agreement, any
obligation issued or assumed as full or partial payment for
property whether or not secured by a purchase money mortgage
or any obligation under notes payable or drafts accepted
representing extensions of credit) beyond any period of grace
provided with respect thereto, or defaults in the performance
or observance of any other agreement, term or condition
contained in any agreement under which any such obligation is
created (or if any other default under any such agreement
shall occur and be continuing) and the effect of such default
is to cause, or to permit the holder or holders of such
obligation (or a trustee on behalf of such holder or holders)
to cause, such obligation to become due (or to be defeased or
repurchased by a Dravo Party or any Subsidiary) prior to its
stated maturity; or
(d) any representation or warranty made by any of the
Dravo Parties herein or in any other Operative Document or in
connection with this Agreement or any other Operative Document
shall be false in any material respect on the date as of which
made; or
(e) any Dravo Party defaults in the performance or
observance of any of the covenants contained in Section
4.01(c), 4.01(d), 4.02(b) or Article V; or
(f) any Dravo Party defaults in the performance or
observance of any other agreement, term or condition contained
herein, and such default shall not have been remedied within
30 days after any officer of such Dravo Party obtains actual
knowledge thereof; or
(g) any of the Dravo Parties or any Subsidiary thereof
makes an assignment for the benefit of creditors or is
generally not paying its debts as such debts become due; or
(h) any order, judgment or decree is entered under any
bankruptcy, reorganization, compromise, arrangement,
insolvency, readjustment of debt, dissolution or liquidation
or similar law whether now or hereafter in effect (herein
called the "Bankruptcy Law") of any jurisdiction adjudicating
any of the Dravo Parties or any Subsidiary thereof bankrupt or
insolvent or that is an order for relief; or
(i) any of the Dravo Parties or any Subsidiary thereof
petitions or applies to any tribunal for, or consents to, the
appointment of, or taking possession by, a trustee, receiver,
custodian, liquidator or similar official, of such Dravo Party
or any Subsidiary thereof, or of any substantial part of the
assets of such Dravo Party or any Subsidiary thereof, or
commences a voluntary case under the Bankruptcy Law of the
United States or any proceedings (other than proceedings for
the voluntary liquidation or dissolution of a Subsidiary of
such Dravo Party) relating to such Dravo Party or any
Subsidiary thereof under the Bankruptcy Law of any other
jurisdiction, whether now or hereafter in effect, or shall
take any corporate action in furtherance of any of the
foregoing; or
(j) any such petition or application is filed, or any
such proceedings are commenced, against any of the Dravo
Parties or any Subsidiary thereof or any of the Dravo Parties
or any Subsidiary thereof by any act indicates its approval
thereof, consent thereto or acquiescence therein, or an order
for relief is entered in an involuntary case under the
Bankruptcy Law of the United States, as now or hereafter
constituted, or an order, judgment or decree is entered
appointing any such trustee, receiver, custodian, liquidator
or similar official, or approving the petition in any such
proceedings, and such order, judgment or decree remains
unstayed and in effect for more than 30 days; or
(k) any order, judgment or decree is entered in any
proceedings against any of the Dravo Parties decreeing the
dissolution of any of the Dravo Parties and such order,
judgment or decree remains unstayed and in effect for more
than 60 days; or
(l) any order, judgment or decree is entered in any
proceedings against any of the Dravo Parties or any Subsidiary
thereof decreeing a split-up of such Dravo Party or such
Subsidiary which requires the divestiture of 10%, or the
divestiture of the stock of a Subsidiary whose assets
constitute 10% of the consolidated assets of Dravo and its
Subsidiaries determined in accordance with GAAP or which
requires the divestiture of assets, or stock of a Subsidiary
of such Dravo Party, which shall have contributed l0% of the
Consolidated Net Earnings of Dravo and its Subsidiaries
determined in accordance with GAAP for any of the three fiscal
years then most recently ended, and such order, judgment or
decree remains unstayed and in effect for more than 60 days;
or
(m) a judgment in an amount in excess of $5,000,000 is
rendered against any of the Dravo Parties or any Subsidiary
thereof and within 60 days after entry thereof, such judgment
is not discharged or execution thereof stayed pending appeal,
or within 60 days after the expiration of any such stay, such
judgment is not discharged; or
(n) any of the Dravo Parties shall fail to comply with
the terms of any of the Operative Documents or any Hedging
Arrangement to which it is a party beyond applicable grace
periods, if any, specified in such Operative Documents or any
such Hedging Arrangement; or
(o) at any time, the aggregate commitment for
advances (excluding any sublimit or commitment for the
issuance of letters of credit) under all revolving credit
facilities of the Companies having a revolving term with an
expiration date later than six calendar months after such time
shall be less than $40,000,000; or
(p) the DNRC Agency Agreement shall cease to be in
full force and effect or DNRC shall fail to comply with the
DNRC Agency Agreement;
then (i) if such event is an Event of Default specified in clause
(g), (h), (i), or (j) of this Section 6.01, all of the Notes at the
time outstanding shall automatically become immediately due and
payable at par together with interest accrued thereon, without
presentment, demand, protest or notice of any kind, all of which are
hereby waived by the Companies, and (ii) if such event is an Event
of Default specified in clause (a) or (b) of this Section 6.01, any
holder of any Note may at its option during the continuance of such
Event of Default, by notice in writing to the Companies, declare all
of the Notes held by such holder to be, and all of the Notes held by
such holder shall thereupon be and become, immediately due and
payable together with interest accrued thereon and together with the
Yield-Maintenance Premium, if any, with respect to each such Term
Note, without presentment, demand, protest or notice of any kind,
all of which are hereby waived by each of the Companies and (iii) if
such event is any other Event of Default, the Requisite Lenders may,
at their option, by notice in writing to the Companies, declare the
Notes or any of them, as the case may be, to be, and the Notes or
any of them, as the case may be, shall thereupon be and become,
immediately due and payable together with the Yield-Maintenance
Premium, if any, with respect to each Term Note, without
presentment, demand, protest or other notice of any kind, all of
which are hereby waived by the Companies, provided that the
Yield-Maintenance Premium, if any, with respect to each Term Note
shall be due and payable upon such declaration only if (x) such
event is an Event of Default specified in any of clauses (a) through
(f), inclusive, or (k) through (p), inclusive, of this Section 6.01,
(y) Prudential shall have given to the Companies at least ten
Business Days' written notice before such declaration stating its
intention so to declare the Term Notes to be immediately due and
payable and identifying one or more such Events of Default whose
occurrence on or before the date of such notice permits such
declaration and (z) one or more of the Events of Default so
identified shall be continuing at the time of such declaration. If
any Note shall have been declared to be due and payable pursuant to
clause (ii) or (iii) above, any holder of any other Note may at
anytime thereafter, regardless of whether any Event of Default shall
at such time be continuing, by notice in writing to the Companies,
declare all of the Notes held by such holder to be, and all of the
Notes held by such holder shall thereupon be and become, immediately
due and payable together with interest accrued thereon and together
with the Yield-Maintenance Premium, if any, with respect to each
such Term Note, without presentment, demand, protest or notice of
any kind, all of which are hereby waived by the Companies, provided
that the Yield-Maintenance Premium, if any, with respect to each
Term Note shall be due and payable upon any declaration pursuant to
this Section 6.01 as provided in the foregoing.
SECTION 6.02. Rescission of Defaults. If, at any time after
the outstanding principal amount of the Notes shall have become due
and payable pursuant to Section 6.01, and no judgment or decree for
any amounts so becoming due and payable shall have been entered, (a)
all amounts of principal and interest which shall have become due
and payable in respect of all of the Notes otherwise than pursuant
to Section 6.01 shall have been paid in full, together with interest
on all such overdue principal and (to the extent permitted by
applicable law) interest at the rate specified in such Note or
Notes, and an amount sufficient to cover all costs and expenses of
collection incurred by or on behalf of the Lenders (including
counsel fees and expenses) and (b) every other Default (whether or
not constituting an Event of Default) shall have been remedied or
waived, then the Majority Lenders may, by written notice to the
Companies, rescind and annul such acceleration and its consequences,
but no such rescission and annulment shall extend to or affect any
subsequent Default or Event of Default or impair any right
consequent thereon, and no such rescission and annulment shall
require Lenders to repay any interest, principal or premium actually
received as a result of such acceleration.
SECTION 6.03. Other Remedies. If any Event of Default or
Default shall occur and be continuing, each Lender may proceed to
protect and enforce its rights under this Agreement and the
Operative Documents, as the case may be, by exercising such remedies
as are available to them in respect thereof under applicable law,
either by suit in equity or by action at law, or both, whether for
specific performance of any covenant or other agreement contained in
this Agreement or in aid of the exercise of any power granted in
this Agreement or the Operative Documents. No remedy conferred in
this Agreement upon a Lender is intended to be exclusive of any
other remedy, and each and every such remedy shall be cumulative and
shall be in addition to every other remedy conferred herein or now
hereafter existing at law or in equity or by statute or otherwise.
SECTION 1.02. Amendment and Restatement of Appendix A.
Appendix A shall be amended and restated in full to read as the
Appendix A attached hereto.
ARTICLE II
CONDITIONS PRECEDENT
SECTION 2.01. Conditions of Effectiveness. This Amendment
and Restatement shall become effective when, and only when, (a) King
& Spalding shall have received counterparts of this Amendment and
Restatement executed by each of the Dravo Parties and the Lenders
and all of the following documents, each (unless otherwise
indicated) being dated the date of receipt thereof by King &
Spalding (which date shall be the same for all such documents), in
form and substance satisfactory to the Lenders:
(i) Copies of (A) all documents evidencing all
requisite corporate action of each Dravo Party (including any
and all resolutions of the Board of Directors of each Dravo
Party) authorizing the execution, delivery and performance of
this Amendment and Restatement and the matters contemplated
hereby and thereby, (B) all documents evidencing all
Governmental Approvals, if any, with respect to this Amendment
and Restatement and the matters contemplated hereby and
thereby, and (C) the certificate or articles of incorporation
and by-laws of each Dravo Party.
(ii) A good standing certificate issued by the
Secretary of State of its incorporation for each Dravo Party,
each dated as of a date not more than five days prior to the
date hereof.
(iii) A certificate of the Secretary or an Assistant
Secretary of each Dravo Party certifying the names and true
signatures of the officers authorized to sign this Amendment
and Restatement on behalf of such Dravo Party and any other
documents to be delivered by such Dravo Party hereunder.
(iv) Amendment to the First Mortgage and Security
Agreement, dated as of January 21, 1992, by Lime in favor of
the Collateral Agent, recorded in Xxxxxxxxx County, Kentucky,
duly executed by Lime and the Collateral Agent.
(v) A signed copy of a commitment for title insurance
providing for a date-down endorsement to the title insurance
policy issued by Commonwealth Land Title Insurance Company,
Loan Policy Number E0835807, covering the land utilized by the
Project in Xxxxxxxxx County, Kentucky, containing such
exceptions as the Lenders may determine to be acceptable.
(vi) A Warranty Xxxx of Sale and Assignment, pursuant
to which all of the personal property conveyed by Lime to
Dravo Black River Limited Partnership (the "SPV") under the
Warranty Xxxx of Sale and Assignment, dated as of August 1,
1994, by Lime to the SPV, is conveyed back to Lime, duly
executed by Lime and the SPV.
(vii) An Improvements Deed, pursuant to which all of the
Improvements conveyed by Lime to the SPV under the
Improvements Deed, dated as of August 1, 1994, by Lime to the
SPV, are conveyed back to Lime, duly executed by Lime and the
SPV.
(viii) Financing Statements on Form UCC-1 covering
the personal property conveyed under the Warranty Xxxx of Sale
and Assignment delivered pursuant to clause (vi) above, to be
filed in all jurisdictions as may be necessary or, in the
opinion of the Collateral Agent, desirable to perfect the
security interests of the Collateral Agent therein.
(ix) A Termination of Ground Lease, pursuant to which
the Ground Lease, dated as of August 1, 1994, between Lime and
the SPV will be terminated of record, duly executed by Lime
and the SPV.
(x) A Termination of Easement Agreement, pursuant to
which the Easement Agreement, dated as of August 1, 1994,
between Lime and the SPV will be terminated of record, duly
executed by Lime and the SPV.
(xi) A Termination of Mortgage Subordination Agreement,
pursuant to which the Mortgage Subordination Agreement, dated
as of August 1, 1994, by the Collateral Agent in favor of the
SPV will be terminated of record, duly executed by the
Collateral Agent and the SPV.
(xii) A favorable opinion of Xxxxxxxx Ingersoll,
Professional Corporation, special counsel for the Dravo
Parties, in form and substance satisfactory to the Lenders.
(xiii) Such other documents, instruments, approvals
(and, if required by the Agent, certified duplicates of
executed copies thereof) or opinions as the Agent or any
Lender may reasonably request.
(b) The representations and warranties contained herein
shall be true on and as of the date hereof; there shall exist on the
date hereof, no Event of Default or Default; there shall exist no
material adverse change in the financial condition, business
operation or prospects of any Dravo Party or its Subsidiaries since
December 31, 1994; and each Dravo Party shall have delivered to the
Lenders an Officer's Certificate, dated the date hereof, to such
effect.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Representations and Warranties of the Dravo
Parties. (a) Each of the Dravo Parties hereby repeats and confirms
each of the representations and warranties made by it in Article VII
of the Override Agreement as though made on and as of the date
hereof, with each reference therein to "this Agreement", the
"Operative Documents", "hereof", "hereunder", "thereof",
"thereunder" and words of like import being deemed to be a reference
to the Override Agreement, as amended hereby.
(b) Each of the Dravo Parties further represents and
warrants as follows:
(i) Such Dravo Party and each of its Subsidiaries is
a corporation duly organized, validly existing and in good
standing under the laws of the state of its incorporation and
is duly qualified to do business in, and is in good standing
in, all other jurisdictions where the nature of its business
or the nature of property owned or used by it makes such
qualification necessary.
(ii) The execution, delivery and performance by
such Dravo Party of this Amendment and Restatement are within
its corporate powers, have been duly authorized by all
necessary corporate action and do not contravene (A) such
Dravo Party's charter or by-laws, (B) law or (C) any legal or
contractual restriction binding on or affecting such Dravo
Party; and such execution, delivery and performance do not or
will not result in or require the creation of any Lien upon or
with respect to any of its properties.
(iii) No Governmental Approval is required for the due
execution, delivery and performance by such Dravo Party of
this Amendment, except for such Governmental Approvals as have
been duly obtained or made and which are in full force and
effect on the date hereof and not subject to appeal.
(iv) This Amendment and Restatement constitutes
the legal, valid and binding obligations of such Dravo Party
enforceable against such Dravo Party in accordance with its
terms; subject to the qualifications, however, that the
enforcement of the rights and remedies herein is subject to
bankruptcy and other similar laws of general application
affecting rights and remedies of creditors and that the remedy
of specific performance or of injunctive relief is subject to
the discretion of the court before which any proceedings
therefor may be brought.
(v) Except as set forth in the Form 10-Q dated
September 30, 1995, there are no pending or threatened
actions, suits or proceedings affecting such Dravo Party or
any of its Subsidiaries or the properties of such Dravo Party
or any of its Subsidiaries before any court, governmental
agency or arbitrator, that may, if adversely determined,
materially adversely affect the financial condition,
properties, business, operations or prospects of such Dravo
Party and it Subsidiaries, considered as a whole, or affect
the legality, validity or enforceability of the Override
Agreement or any other Operative Document, as amended hereby.
[Signatures Begin on Next Page.]
IN WITNESS WHEREOF, each of the parties hereto have caused
this Amendment and Restatement to be duly executed and delivered by
their respective officers thereunto duly authorized as of the date
first above written.
FIRST ALABAMA BANK
By: /s/ XXXXX X. XXXXXXXX
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President
PNC BANK, NATIONAL
ASSOCIATION (f/k/a Pittsburgh
National Bank)
By:/s/ XXXX X. XXXXX
Name: Xxxx X. Xxxxx
Title: Vice President
BANK OF AMERICA ILLINOIS
By:/s/ XXXXXXX X. XXXXXXXX
Name: Xxxxxxx X. XxXxxxxx
Title: Vice President
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA
By:/s/ XXXXX X. XXXXXX
Name: Xxxxx X. Xxxxxx
Title: Vice President
DRAVO CORPORATION
By:/s/ XXXXXX X. XXXX III
Name: Xxxxxx X. Xxxx III
Title: Executive Vice President
DRAVO LIME COMPANY
By:/s/ XXXXXX X. XXXX III
Name: Xxxxxx X. Xxxx III
Title: Executive Vice President
DRAVO BASIC MATERIALS
COMPANY, INC.
By:/s/ XXXXXX X. XXXX III
Name: Xxxxxx X. Xxxx III
Title: Executive Vice President
