Exhibit 10.1
CREDIT AGREEMENT
Dated as of March 17, 2004
By and Among
AMERICAN ROCK SALT COMPANY LLC
(as Borrower)
MANUFACTURERS AND TRADERS TRUST COMPANY
(as Arranger, Agent, Collateral Agent and Letters of Credit Issuer)
and
THE LENDERS PARTY HERETO
TABLE OF CONTENTS
SECTION 1. DEFINITIONS ......................................................1
1.1 Definitions ............................................................1
1.2 Other Defined Terms; Rules of Interpretation ...........................41
SECTION 2 REVOLVING CREDIT FACILITY ............................................42
2.1 Total Revolving Credit Commitment ........................................42
2.2 Revolving Loan Notes .....................................................43
2.3 Procedure for Borrowing with Respect to Revolving Loans ..................43
2.4 Disbursement of Revolving Loans ..........................................44
2.5 Revolving Loans and Revolving Borrowings .................................44
2.6 Use of Proceeds ..........................................................45
2.7 Termination and Reduction of Total Revolving Credit Commitment ...........45
2.8 Release of Certain Collateral ............................................45
SECTION 3 LETTERS OF CREDIT ....................................................46
3.1 Standby L/C Facility .....................................................46
3.2 Surety L/C Facility ......................................................49
3.3 Provisions Applicable to all Letters of Credit ...........................53
SECTION 4. TERM LOAN FACILITY ...............................................54
4.1 Term Loan Commitment ...................................................54
4.2 Term Loan Note(s) ......................................................55
4.3 Procedure for Borrowing with Respect to Term Loans .....................55
4.4 Disbursement of Term Loans .............................................56
4.5 Use of Proceeds ........................................................56
4.6 Termination and Reduction of Term Loan Commitment ......................56
SECTION 5 PROVISIONS RELATING TO ALL EXTENSIONS OF CREDIT FEES AND
PAYMENTS ...............................................57
5.1 Upfront Commitment Fees; Revolving Credit Fee; and Unused Commitment
Fee ..................................................................57
5.2 Prepayments and Repayments .............................................57
5.3 Interest Rates, Payments and Payment Dates .............................61
5.4 Interest Rate Conversions ..............................................62
5.5 Pro Rata Treatment and Payment Dates ...................................62
5.6 Inability to Determine LIBOR Rate ......................................63
5.7 Computation of Interest and Fees .......................................64
5.8 Illegality .............................................................64
5.9 Applicable Law .........................................................64
5.10 Indemnity ..............................................................65
5.11 Taxes ..................................................................65
5.12 Payments by Agent ......................................................67
SECTION 6 REPRESENTATIONS AND WARRANTIES .................................. 68
6.1 Borrower's Existence and Business ..................................... 68
6.2 Compliance with Law ................................................... 68
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6.3 Power and Authorization; Enforceable Obligations .......................68
6.4 Governmental Approvals and Other Consents and Approvals ................69
6.5 No Legal Bar ...........................................................70
6.6 No Proceeding or Litigation ............................................70
6.7 Material Contracts .....................................................70
6.8 Financial Statements ...................................................71
6.9 Ownership of Property; Liens ...........................................72
6.10 Taxes ..................................................................72
6.11 Regulation U ...........................................................73
6.12 ERISA ..................................................................73
6.13 Investment Company Act .................................................74
6.14 Senior Security Documents ..............................................74
6.15 Property Rights, Utilities, Etc ........................................74
6.16 Compliance with Building Codes, Zoning Laws, Etc .......................74
6.17 Principal Place of Business, Etc .......................................74
6.18 Description of Property ................................................75
6.19 Sufficiency of Mineral Rights ..........................................75
6.20 Sufficiency of Access ..................................................75
6.21 Locations of Site ......................................................75
6.22 Environmental Matters ..................................................75
6.23 Intellectual Property ..................................................76
6.24 Labor Matters ..........................................................77
6.25 Subsidiaries ...........................................................77
6.26 Full Disclosure ........................................................77
SECTION 7 CONDITIONS PRECEDENT .................................................78
7.1 Conditions Precedent to the Initial Closing ..............................78
7.2 Conditions to All Revolving Loans and Standby L/Cs .......................82
7.3 Conditions to the Term Loans .............................................83
SECTION 8 AFFIRMATIVE COVENANTS ............................................84
8.1 Conduct of Business, Maintenance of Existence, Etc .....................84
8.2 Partnership Tax Status; Corporate Existence, Etc .......................85
8.3 Payment of Obligations and Performance of Material Contracts ...........85
8.4 Borrower Insurance Coverage ............................................86
8.5 Inspection of Property; Maintenance of Books and Records ...............88
8.6 Compliance with Laws ...................................................89
8.7 Financial Statements ...................................................89
8.8 Certificates; Three Year Operating Budget, Other Information ...........90
8.9 Taxes ..................................................................92
8.10 Maintenance of Property ................................................92
8.11 Notices ................................................................92
8.12 Maintenance of Liens of the Senior Security Documents; Acquisition
of Mineral Rights; Future Mortgages ....................................94
8.13 Employee Plans .........................................................94
8.14 Storage ................................................................94
8.15 Environmental Matters ..................................................94
8.16 Use of Proceeds ........................................................96
8.17 Syndication Efforts ....................................................96
8.18 Obligations under the Consents to Assignment ...........................96
8.19 Operating Accounts .....................................................96
8.20 Future Subsidiaries ....................................................96
8.21 Real Estate Acquisitions ...............................................98
SECTION 9 NEGATIVE COVENANTS ...............................................98
9.1 Working Capital ........................................................98
9.2 Leverage Ratio .........................................................98
9.3 Fixed Charge Coverage Ratio ............................................98
9.4 Adjusted EBITDA ........................................................98
9.5 Investments ............................................................98
9.6 Merger, Sale of Assets, Purchases, Etc .................................98
9.7 Indebtedness ...........................................................99
9.8 Liens ..................................................................99
9.9 Restricted Payments ....................................................99
9.10 Capital Expenditures ...................................................100
9.11 Nature of Business .....................................................100
9.12 Amendment of Contracts, Etc ............................................100
9.13 Leases .................................................................100
9.14 Change of Office .......................................................100
9.15 Change of Name .........................................................100
9.16 Compliance with ERISA ..................................................100
9.17 Transactions with Affiliates and Others ................................101
9.18 Alteration or Abandonment of the Project ...............................101
9.19 Optional Payments and Modifications of Senior Second Secured Notes .....101
9.20 Materials of Environmental Concern .....................................101
9.21 Fiscal Year ............................................................102
9.22 New Members ............................................................102
SECTION 10 EVENTS OF DEFAULT ................................................102
10.1 Events of Default ......................................................102
10.2 Remedies ...............................................................106
SECTION 11 THE AGENT, THE COLLATERAL AGENT AND RELATIONS AMONG LENDERS, ETC ....107
11.1 Appointment of Agent and Collateral Agent, Powers and Immunities .......107
11.2 Reliance by Agent and the Collateral Agent .............................107
11.3 Defaults ...............................................................108
11.4 Rights of Agent and the Collateral Agent as Lenders ....................108
11.5 Indemnification ........................................................108
11.6 Non-Reliance on Agent, the Collateral Agent and Other Lenders ..........109
11.7 Resignation or Removal of Agent and Collateral Agent ...................109
11.8 Authorization ..........................................................110
11.9 Benefit of Agreement ...................................................110
SECTION 12 MISCELLANEOUS ....................................................110
12.1 Amendments and Waivers .................................................110
12.2 Notices ................................................................111
12.3 No Waiver; Cumulative Remedies .........................................112
12.4 Survival ...............................................................112
12.5 Expenses and Taxes .....................................................112
12.6 Indemnification ........................................................113
12.7 Successors and Assigns; Transferees; Transferred Interests .............114
12.8 Severability ...........................................................116
12.9 Headings ...............................................................116
12.10 Counterparts ...........................................................116
12.11 The Lenders Sole Beneficiaries .........................................116
12.12 Governing Law ..........................................................116
12.13 Submission to Jurisdiction; Waivers ....................................116
12.14 Maximum Interest Rate ..................................................117
12.15 Confidentiality Provision ..............................................117
THIS CREDIT AGREEMENT, dated as of March 17, 2004, by and among AMERICAN
ROCK SALT COMPANY LLC, a limited liability company organized under the laws of
the State of New York (the "Borrower"), the financial institutions parties
hereto from time to time (the "Lenders"), MANUFACTURERS AND TRADERS TRUST
COMPANY ("M&T"), as the Letters of Credit Issuer, as arranger for the credit
facilities (in such capacity, the "Arranger"), as administrative agent for the
Lenders (as listed on Appendix A) (in such capacity, the "Agent") and as
collateral agent for the Lenders (in such capacity, the "Collateral Agent").
W I T N E S S E T H :
WHEREAS, the Borrower has requested that the Lenders, the Letters of
Credit Issuer, the Arranger, the Agent and the Collateral Agent enter into this
Agreement in order to make available to the Borrower the $62,140,113.50 of
senior secured credit facilities described herein on the terms and conditions
set forth herein; and
WHEREAS, the Lenders and the Letters of Credit Issuer are prepared to
provide such senior secured credit facilities to Borrower on the terms and
conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties hereto agree as follows:
SECTION 1.
DEFINITIONS.
1.1 Definitions.
(a) The following definitions shall have the following meanings:
"Adjusted Current Liabilities" means, as of the date of
determination, the sum of (a) Current Liabilities and (b) all amounts
outstanding with respect to Revolving Loans that are not otherwise classified as
Current Liabilities in accordance with GAAP.
"Adjusted EBITDA" means as to any Person, as of the date
of determination, the sum of (a) the EBITDA of such Person, plus (b) all NOMIPS
for the same period in which EBITDA is determined.
"Adjusted Funded Indebtedness" means, as to any Person,
as of the date of determination, the sum of (a) the Funded Indebtedness of such
Person as of such date, minus (b) the Senior Second Secured Obligations.
"Affiliate" means, with respect to any designated
Person, each Person which, directly or indirectly, controls or is controlled by
or is under common control with such designated Person and, without limiting the
generality of the foregoing, includes (a) any Person which beneficially owns or
holds 10% or more of any class of voting securities of such designated Person or
10% or more of the equity interest in such designated Person and (b) any Person
which such
designated Person beneficially owns or holds 10% or more of any class of voting
securities or in which such designated Person beneficially owns or holds 10% or
more of the equity interest. For the purposes of this definition, "control"
(including, with correlative meanings, the terms "controlled by" and "under
common control with"), as used with respect to any Person, means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of such Person, whether through the ownership of voting
securities or by contract or otherwise.
"Agent" means M&T, in its capacity as agent for the
Lenders appointed under Section 11 and its successors and permitted assigns in
such capacity.
"Agreement" means this Credit Agreement dated March 17,
2004 among Borrower, the Lenders, the Letters of Credit Issuer, the Arranger,
the Agent and Collateral Agent, as amended, modified, supplemented or restated
from time to time.
"Annual Clean-Up Period" means any period of sixty (60)
consecutive days commencing on or after October 1st in any year and ending on or
before September 30th in the following year, provided, however, that prior to
September 30, 2004, the applicable measurement period for the Annual Clean-Up
Period shall be the period commencing on the Closing Date and continuing through
but not including September 30, 2004.
"Applicable Capital Gain Tax Rate" means a rate equal to
the sum of (a) the highest marginal federal capital gain tax rate applicable to
an individual who is a citizen of the United States (other than the capital
gains rate applicable to collectibles pursuant to Code Section 1(h)(5)), plus
(b) an amount equal to the sum of the highest marginal state and local capital
gain tax rates applicable to an individual who is a resident of the State and
City of New York, multiplied by a factor equal to 1 minus the rate described in
clause (a) above.
"Applicable Income Tax Rate" means a rate equal to the
sum of (a) the highest marginal Federal income tax rate applicable to an
individual who is a citizen of the United States plus (b) an amount equal to the
sum of the highest marginal state and local income tax rates applicable to an
individual who is a resident of the State and City of New York, multiplied by a
factor equal to 1 minus the rate described in clause (a) above.
"Applicable Laws" means, with respect to any Person, all
laws, treaties, ordinances, judgments, decrees, injunctions, writs, orders,
rules, regulations, interpretations, licenses and permits, including
Environmental Laws, of any federal, state, county, municipal, regional or other
Governmental Authority, in each case applicable to or binding upon such Person
or any of its properties or to which such Person or any of its subsidiaries'
properties is subject.
"Applicable Margin" means:
(a) For any day from the Closing Date until
the first available date following the first anniversary of the Closing Date on
which the Applicable Margin is to be adjusted as provided below, the following
per annum rates: (i) 3.0% for the L/C Fee Rate and LIBOR Loans, (ii) .25% for
Base Rate Loans, and (iii) .375% for the Unused Commitment Fee Rate.
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(b) Upon the day of the first adjustment of
the Applicable Margin following the first anniversary of the Closing Date as
provided below, and for any day thereafter, the per annum rate set forth below
opposite the level (the "Level") then in effect, it being understood that the
Applicable Margin for (i) LIBOR Loans shall be the percentage set forth under
the column "L/C Fee Rate and LIBOR Margin", (ii) Base Rate Loans shall be the
percentage set forth under the column "Base Rate Margin", (iii) the Unused
Commitment Fee Rate shall be the percentage set forth under the column "Unused
Commitment Fee Rate " and (iv) the L/C Fee Rate shall be the percentage set
forth under the column "L/C Fee Rate and LIBOR Margin."
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L/C Fee Rate Unused
Pricing Grid and LIBOR Base Rate Commitment
Level Leverage Ratio Margin Margin Fee Rate
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I >2.50:1 3.50% 0.750% 0.375 %
II >2.00:1 to = 2.50:1 3.25 % 0.500% 0.375%
III >1.50:1 to = 2.00:1 3.00 % 0.250% 0.375%
IV >1.00:1 to = 1.50:1 2.75 % 0.125 0.250 %
V =1.00:1 2.50 % 0.000% 0.125%
Following the first anniversary of the Closing Date, the Applicable
Margin shall be adjusted, on the fifth (5th) Business Day after the Borrower
provides or is required to provide the annual and quarterly financial statements
and other information pursuant to Section 8.7, and the related Compliance
Certificate, based on the Level which corresponds to the Pricing Grid Leverage
Ratio as of the Fiscal Quarter last ended prior to such delivery.
Notwithstanding anything contained in this paragraph to the contrary, if the
Borrower fails to deliver any such financial statements and Compliance
Certificate in accordance with the provisions of Section 8.7, the Applicable
Margin shall be based upon Level I beginning on the date such financial
statements and Compliance Certificate were required to be delivered and
continuing thereafter until the fifth (5th) Business Day after such financial
statements and Compliance Certificate are actually delivered, whereupon the
Applicable Margin shall be determined based on the Level which corresponds to
the Pricing Grid Leverage Ratio as of the Fiscal Quarter last ended prior to
such delivery; provided, however, no reduction to any Applicable Margin shall
become effective at any time when a Default or Event of Default has occurred and
is continuing. Furthermore, upon the occurrence of and during the continuance of
an Event of Default, the Applicable Margin shall be based upon Level I.
"Arranger" means M&T, in its capacity as sole arranger
for the credit facilities provided under this Agreement.
"Asset Sale" means any direct or indirect sale,
issuance, conveyance, transfer, lease (other than operating leases entered into
in the ordinary course of business), assignment or other transfer (other than a
Permitted Lien) for value, whether in a single
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transaction or a series of related transactions, by the Borrower or any of its
Subsidiaries to any Person other than the Borrower or a Guarantor of: (a) any
Capital Stock of any Subsidiary of the Borrower, or (b) any other property or
assets of the Borrower or any Subsidiary of the Borrower other than sales of
inventory and the sale and replacement of equipment (if not covered by Section
5.2(a)(iii)), in either case, in the ordinary course of business.
"Available Non-Extraordinary Distributions" means as of
any date (a) all Permitted Net Income Distribution Annual Allowances and
Permitted Tax Distribution Annual Allowances after the Closing Date minus (b)
all distributions paid by Borrower to its members as of and after the Closing
Date other than paid Permitted Extraordinary Distributions plus or minus (c)
once per year adjustments after the Permitted Tax Distribution Annual Allowance
is finalized.
"Bankruptcy Code" means the Bankruptcy Reform Act of
1978, as amended and codified as 11 U.S.C. Section 101 et seq.
"Base Rate" shall mean, for any day, a floating rate
equal to the sum of (a) the higher of (i) the Federal Funds Rate plus 0.50% and
(ii) the Prime Rate, plus (b) the Applicable Margin for Base Rate Loans. Each
change in any rate of interest provided for in this Agreement and based upon the
Base Rate shall take effect at the time of such change in the Base Rate.
"Base Rate Loans" means the Loans that bear interest at
the Base Rate.
"Beneficial Owner" has the meaning assigned to such term
in Rule 13d-3 and Rule 13d-5 under the Securities Exchange Act of 1934, except
that in calculating the Beneficial Ownership of any particular "person" (as that
term is used in Section 13(d)(3) of the Exchange Act), such "person" will be
deemed to have Beneficial Ownership of all securities that such "person" has the
right to acquire by conversion or exercise of other securities, whether such
right is currently exercisable or is exercisable only upon the occurrence of a
subsequent condition. The terms "Beneficially Owns," "Beneficially Owned" and
"Beneficial Ownership" have meanings correlative to the foregoing.
"Board of Directors" means the Borrower's board of
managers as elected pursuant to the Operating Agreement.
"Bond" means the bond issued for the benefit of F-K to
secure Borrower's obligations, if any, to F-K under the F-K Construction
Contract or relating to the F-K Litigation.
"Bonding Company" means Zurich American Insurance
Company or any other company that issues the Bond.
"Bonding Company Indemnity Agreement" means the general
agreement of indemnity dated on or about March 16, 2004 between the Bonding
Company and the Borrower.
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"Borrower" means American Rock Salt Company LLC, a
limited liability company organized under the laws of the State of New York.
"Borrowing Base" shall mean, as of any date of its
determination, an amount equal to the sum of (a) 85% of Borrower's and
Guarantors' Eligible Accounts Receivable as of such date, and (b) the lesser of
(i) 65% of the Borrower's and Guarantors' Eligible Inventory or (ii) (A)
$18,000,000 from August 1st each year until January 31st of the following year
or (B) $15,000,000 from February 1st each year until July 31st of the same year
less (c) a reserve of $2,000,000 for the period beginning on December 1st and
ending on April 30th of each year, and less (d) a reserve of $1,000,000 for the
period beginning on May 1st and ending on November 30th of each year. The Agent
may from time to time in its sole discretion, reduce the applicable reserves
described in (c) and (d).
"Borrowing Base Certificate" means a certificate of the
Borrower delivered to the Agent pursuant to Section 2.1(b) in the form of
Exhibit A.
"Borrowing Date" means any Working Day in the case of
LIBOR Loans and Business Day in the case of Base Rate Loans, Standby L/Cs and
the Surety L/C, as specified in (a) a Notice of Revolving Loan Borrowing
pursuant to Section 2.3 on which Lenders make Revolving Loans, (b) a notice
pursuant to Section 3.1(c) on which the Standby L/C Issuer issues a Standby L/C
and (c) a Term Loan Notice of Borrowing pursuant to Section 4.3 on which the
Lenders make the Term Loans.
"Breakage Amount" means the amount of any losses (other
than lost profit), expenses and liabilities sustained by any Lender as a result
of the repayment of a LIBOR Loan by the Borrower on a day other than an Interest
Payment Date.
"Business Day" means a day other than a Saturday, Sunday
or other day which shall be a legal holiday in Rochester, New York or on which
commercial banks in Rochester, New York are authorized or required by law to
close.
"Capital Expenditures" means, for any period, with
respect to any Person, the aggregate of all expenditures by such Person and its
Subsidiaries for the acquisition or leasing (pursuant to a Capital Lease) of
fixed or capital assets or additions to equipment (including replacements,
capitalized repairs and improvements during such period) that should be
capitalized under GAAP on a consolidated balance sheet of such Person and its
Subsidiaries.
"Capital Lease" means (a) any lease of property, real or
personal, if the obligations thereunder should be capitalized and accounted for
on a capital lease basis on a balance sheet of the lessee in accordance with
GAAP, and (b) any other such lease obligations which are capitalized on a
balance sheet of the lessee. For the purposes of this Agreement, the amount of
the obligations under the Capital Lease at any time shall be determined in
accordance with GAAP.
"Capital Stock" means (a) with respect to any Person
that is a corporation, any and all shares, interests, participations or other
equivalents (however designated and whether
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or not voting) of capital stock, including each class of common stock and
preferred stock of such Person; (b) with respect to any Person that is not a
corporation, any and all partnership, membership or other equity interests of
such Person (including any interest in the profits, losses, capital or
management of such Person); and (c) any warrants, rights or options to purchase
any of the instruments or interests referred to in clause (a) or (b) above.
"Cash Equivalents" means (a) securities issued or
directly and fully guaranteed or insured by the United States Government or any
agency or instrumentality thereof having maturities of not more than six (6)
months from the date of acquisition, (b) certificates of deposit with maturities
of six (6) months or less from the date of acquisition, bankers' acceptances
with maturities not exceeding six (6) months and overnight bank deposits, in
each case, with any Lender having capital and surplus in excess of $250,000,000,
(c) repurchase obligations with a term of not more than seven (7) days for
underlying securities of the types described in clause (a) above entered into
with any Lender meeting the qualifications specified in clause (b) above, (d)
commercial paper issued by any Lender or the parent corporation of an Lender,
and commercial paper of any corporation incorporated under the laws of the
United States of America or any state thereof and not an Affiliate of the
Borrower or any of its Subsidiaries carrying a rating of at least A-2 or the
equivalent thereof by Standard & Poor's Corporation ("S&P") or at least P-2 or
the equivalent thereof by Xxxxx'x Investors Service, Inc. ("Moody's") and in
each case maturing within two hundred seventy (270) days after the date of
acquisition, and (e) money market funds rated in the highest rating category by
either Moody's or S&P.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended or any comparable successor
federal statute.
"CERCLIS" means the Comprehensive Environmental
Response, Compensation and Liability Information System.
"Change of Control" means the occurrence of one or more
of the following events: (a) any direct or indirect sale, lease, transfer,
conveyance or other disposition (other than by way of merger or consolidation),
in one transaction or a series of related transactions, of all or substantially
all of the assets of the Borrower to any Person or group of related Persons for
purposes of Section 13(d) of the Exchange Act (a "Group"), other than a
transaction in which the transferee is controlled by one or more Permitted
Holders; (b) the Borrower consolidates with, or merges with or into, any Person,
or any Person consolidates with, or merges with or into, the Borrower, other
than (i) a transaction in which the surviving or transferee Person is a Person
that is controlled by the Permitted Holders or (ii) any such transaction where
the Voting Stock of the Borrower outstanding immediately prior to such
transaction is converted into or exchanged for Voting Stock (other than
Disqualified Capital Stock) of the surviving transferee Person constituting a
majority of the outstanding shares of Voting Stock of such surviving transferee
Person (immediately after giving effect to such issuance); (c) the approval of
the holders of Capital Stock of the Borrower of any plan or proposal for the
liquidation or dissolution of the Borrower; (d) the Permitted Holders cease for
any reason to be the Beneficial Owner, directly or indirectly, in the aggregate
of a least a
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majority of the Voting Stock of the Borrower held by such Permitted Holders on
the Closing Date, whether by virtue of the issuance, sale or other disposition
of Capital Stock of the Borrower or a direct or indirect holder of Capital Stock
of the Borrower, a merger, consolidation or sale of the assets involving the
Borrower, a Subsidiary or a direct or indirect holder of Capital Stock of the
Borrower, any voting trust or other agreement; (e) (i) any Person or Group is or
becomes the Beneficial Owner, directly or indirectly, in the aggregate of more
than 50% of the total voting power of the Voting Stock of the Borrower, and (ii)
the Permitted Holders beneficially own, directly or indirectly, in the aggregate
a lesser percentage of the total voting power of the Voting Stock of the
Borrower than such other Person or Group, and one or more Permitted Holders do
not have the right to elect managers or directors holding a majority of the
voting power of the Board of Directors of the Borrower; or (f) individuals who
on the Closing Date held a majority of the voting power of the Board of
Directors of the Borrower (together with any new directors whose nomination and
election were approved pursuant to a vote of a majority of the members of the
Borrower (or Related Parties of such members) entitled to vote thereon who were
members of the Borrower (or Related Parties of such members) on the Closing
Date) cease for any reason to hold a majority of the voting power of the Board
of Directors of the Borrower.
"Closing Date" means the initial Borrowing Date under
this Agreement.
"Code" means the Internal Revenue Code of 1986, as the
same may be amended from time to time, or any corresponding provisions of
succeeding law.
"Collateral" means (a) Collateral as defined in Section
1 of the Security Agreement, (b) all property mortgaged under the Mortgages, (c)
the Sinking Fund Collateral Account and all proceeds thereof, (d) the membership
interests and other securities and proceeds pledged to the Collateral Agent
under the Limited Liability Company Pledge Agreement and (e) any other property,
whether now owned or hereafter acquired, upon which a Lien securing the Credit
Obligations is granted or purported to be granted to the Collateral Agent for
the benefit of the Lenders under the Senior Security Documents.
"Commitment Percentage" means as to any Lender its
respective percentage portions of the Total Revolving Credit Commitment and
Total Term Loan Commitment.
"Commitments" means the Total Revolving Credit
Commitment (without duplication of any Commitment of the Standby L/C Issuer),
the commitment of the Standby L/C Issuer to issue Standby L/Cs provided for
hereunder, the commitment of the Surety L/C Issuer to issue the Surety L/C
provided for hereunder and the Total Term Loan Commitments (without duplication
of any Commitment of the Surety L/C Issuer).
"consolidated" and "consolidating", when used with
reference to any term, mean that term as applied to the accounts of the Borrower
(or other specified Person) and all of its Subsidiaries (or other specified
group of Persons), or such of its Subsidiaries as may be specified, consolidated
or consolidating, as the case may be, in accordance with GAAP.
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"Credit Documents" means this Agreement, the Notes, each
of the Standby L/Cs, the Fee Letter, the Senior Security Documents, the L/C
Applications, and all other agreements, instruments, documents and certificates
now or hereafter executed and delivered to the Agent, the Collateral Agent, the
Surety L/C Issuer, the Standby L/C Issuer and/or all of the Lenders by the
Borrower or any of its Subsidiaries with respect to this Agreement and the
transactions contemplated hereby, in each case as amended, modified,
supplemented or restated from time to time.
"Credit Obligations" means all the unpaid principal
amount of, and interest on (including, to the greatest extent permitted by law,
post-petition interest) on the Loans, the Reimbursement Obligations and all
other obligations and liabilities of the Borrower and/or any of its Subsidiaries
to the Agent, the Collateral Agent, the Surety L/C Issuer, the Standby L/C
Issuer and/or all of the Lenders, whether direct or indirect, absolute or
contingent, due or to become due, or now existing or hereafter incurred, which
may arise under, in connection with this Agreement, any other Credit Document,
whether on account of principal, interest, reimbursement obligation fees,
indemnities, costs, expenses (including, without limitation, all reasonable fees
and disbursement of counsel to the Agent, the Collateral Agent and the Letters
of Credit Issuer, but subject to the terms of the Fee Letter) or otherwise.
Notwithstanding the foregoing, the term Credit Obligations shall not include any
obligations and liabilities of the Borrower and/or any of its Subsidiaries to
any of the Lenders under any Hedge Agreement with any Lender other than the
Agent, unless permitted by the terms of an intercreditor agreement between the
Agent, the Required Lenders and the applicable Lender.
"Currency Exchange Agreement" means any currency swap,
foreign exchange contract or similar arrangement providing for protection
against fluctuations in currency exchange rates, either generally or under
specific contingencies.
"Current Assets" means the sum of all assets of the
Borrower and its Subsidiaries, on a consolidated basis, which should, in
accordance with GAAP, be classified as current assets.
"Current Liabilities" means the sum of all liabilities
of the Borrower, on a consolidated basis, which should, in accordance with GAAP,
be classified as current liabilities, including current maturities in respect of
the Indebtedness.
"DEC Permits" means any and all permits, licenses,
approvals, certificates and consents issued by: (a) the New York State
Department of Environmental Conservation (the "DEC") in connection with the
operation and maintenance of the Facility and other locations leased or owned by
the Borrower, including but not limited to the State Pollutant Discharge
Elimination System ("SPDES") Permits Nos. (i) NY 024 5879, (ii) NY 025 2051,
(iii) NY 000 0167, (iv) NY 026 0843, and (v) NY 025 7907; the Petroleum Bulk
Storage Registration Certificate dated February 5, 2001; and the Mining Permit
No. 0-0000-00000/00001; and (b) the State of Pennsylvania SPDES Permits Nos. (i)
324 805, (ii) 232 232, and (iii) 008 4387, and all renewal, extensions and
modifications thereof.
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"Default" means any of the events specified as an Event
of Default in Section 10, without regard for whether any requirement for the
giving of notice, the lapse of time, or the declaration of an Event of Default,
or all such requirements, have been satisfied.
"Default Rate" means the interest rate otherwise
applicable to the Credit Obligations hereunder plus 2%. If no rate is otherwise
specified with respect to a particular Credit Obligation to which the Default
Rate applies, then the Default Rate shall be the Base Rate plus the Applicable
Margin for Level I, increased by 2%.
"Disqualified Capital Stock" means that portion of any
Capital Stock which, by its terms (or by the terms of any security into which it
is convertible or for which it is exchangeable at the option of the holder
thereof), or upon the happening of any event (other than an event that would
constitute a Change of Control), matures or is mandatorily redeemable, pursuant
to a sinking fund obligation or otherwise, or is redeemable at the sole option
of the holder thereof (except in each case, upon the occurrence of a Change of
Control) on or prior to the first anniversary of the Term Loan Maturity Date for
cash or is convertible into or exchangeable for debt securities of the Borrower
or its Subsidiaries at any time prior to such anniversary.
"Dollars" and "$" means dollars in lawful currency of
the United States of America.
"Domestic Subsidiary" means any Subsidiary of the
Borrower organized under the laws of any jurisdiction within the United States.
"Drawing Date" means a Business Day upon which either
the Standby L/C Issuer or the Surety L/C Issuer honors a sight draft presented
in accordance with the terms of a Letter of Credit.
"EBITDA" means, with respect to any Person for any
fiscal period, an amount equal to the sum of (without duplication):
(a) Net Income of such Person during such
period; and
(b) to the extent Net Income has been
reduced thereby:
(i) all income taxes of such Person
and its Subsidiaries paid or accrued in accordance with GAAP for such period;
(ii) Interest Expense, net of the
interest revenue of such Person and its Subsidiaries for such period; and
(iii) the amount of non-cash charges,
including depletion, depreciation and amortization (including amortized or
written-off organizational costs, transaction costs and capitalized financing
costs) of such Person and its Subsidiaries for such period,
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all as determined on a consolidated basis for such Person and its Subsidiaries
in accordance with GAAP.
"Eligible Accounts Receivable" shall mean the gross
outstanding balance, determined in accordance with GAAP and stated on a basis
consistent with the historical practices of the Borrower as of the date hereof,
of accounts receivable of the Borrower arising out of sales of goods or services
made by the Borrower in the ordinary course of business ("Accounts") that have
been invoiced and that the Agent, in its reasonable credit judgment, shall deem
eligible and acceptable in all respects, less (without duplication) all GAAP
reserves, finance charges, late fees and other fees that are unearned, and less
(without duplication) the value of such reserves as the Agent, in its reasonable
credit judgment, shall deem appropriate (including reserves determined by the
Agent, in its reasonable discretion, to reflect any deficiency in, or absence
of, landlord lien waivers and consents). Without in any way limiting the
discretion of the Agent in the exercise of its reasonable credit judgment to
deem an Account eligible or ineligible, the Agent does not currently intend to
treat an Account as an Eligible Account Receivable if:
(a) any portion of such Account has remained
unpaid for a period exceeding ninety (90) days from the due date;
(b) any portion of such Account has remained
unpaid for a period exceeding one hundred twenty (120) days from the invoice
date thereof;
(c) the sale represented by such Account is
to an Account debtor organized or located outside one of the states of the
United States or Canada, except (i) to the extent covered by letters of credit
acceptable to, and assigned to, the Agent or (ii) if the Agent is furnished
evidence reasonably acceptable that the Collateral Agent and the Lenders have a
valid and enforceable first priority Lien thereon;
(d) the Borrower has not complied with all
material requirements of Applicable Law, including, without limitation, all
laws, rules, regulations and orders of any governmental or judicial authority
relating to truth in lending, billing practices, fair credit reporting, equal
credit opportunity, debt collection practices and consumer debtor protection,
applicable to such Account (or any related contracts) or affecting the
collectability of such Account;
(e) the Account debtor is the Borrower or a
Subsidiary, Affiliate, division or employee of the Borrower;
(f) the Account debtor is a supplier or
creditor of the Borrower (provided that such Account would be ineligible only to
the extent of amounts payable by the Borrower to such supplier or outstanding
with such creditor);
(g) the sale represented by such Account is
on a guaranteed sale, sale-or-return, consignment, or sale-on-approval basis or
is subject to (but only to the extent
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of) any setoff, right of return, chargeback, contra, net-out contract, offset,
deduction, dispute, credit, counterclaim or other defense to payment based on
performance by the Borrower or any of its Subsidiaries of their respective
obligations under contracts giving rise to Accounts;
(h) such an Account is an account of any
United States Governmental Authority or the government of any state of the
United States or any political subdivision thereof or any agency or
instrumentality of any of the foregoing, and is covered by the Assignment of
Claims Act or any similar state or local law, as applicable, with respect to
which documentation in compliance therewith, in form and substance satisfactory
to the Agent, shall not have been executed by the Account debtors in respect
thereof;
(i) the Agent believes, in its reasonable
discretion, that the collection of such Account is insecure or that such Account
may not be paid, or the Agent is otherwise not satisfied with the credit
standing of the Account debtor in respect thereof;
(j) such Account is owed by an Account
debtor (other than the United States government, the government of any state of
the United States or any political subdivision thereof, or any agency or
instrumentality of any of the foregoing) whose Accounts constitute more than 10%
of the Accounts included in determining the Borrowing Base on such date, to the
extent of such excess, except to the extent covered by credit insurance
satisfactory to the Agent and assigned to the Agent pursuant to documentation in
form and substance satisfactory to the Agent;
(k) such Account is owing by an Account
debtor when 50% or more of the outstanding amount of all invoiced Accounts from
such Account debtor remain unpaid for a period greater than one hundred twenty
(120) days from the invoice due date thereof;
(l) such Account is not assignable or a
first priority security interest in such Account in favor of the Agent has not
been obtained and fully perfected by filing Uniform Commercial Code financing
statements against the Borrower or any of its Subsidiaries;
(m) such Account is subject to any Lien
whatsoever, other than Liens in favor of (i) the Collateral Agent for the
ratable benefit of the Lenders and (ii) the Trustee as junior collateral agent
for the ratable benefit of holders of the Senior Second Secured Notes so long as
such Lien is subject to the Intercreditor Agreement, which is in full force and
effect;
(n) the Borrower, in order to be entitled to
collect such Account, is required to perform any additional service for, or
perform or incur any additional obligation to, the Account debtor;
(o) such Account does not constitute a
legal, valid and binding irrevocable payment obligation of the Account debtor to
pay the balance thereof in accordance with its terms or is subject to (but only
to the extent of) any defense, setoff, recoupment or counterclaim;
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(p) an estimated or actual loss has been
recognized in respect of such Account, as determined in accordance with the
Borrower's usual business practice, or such Account is required to be charged
off or written off as un-collectible in accordance with GAAP or the customary
business practices of the Borrower;
(q) the Account debtor has filed a petition
for relief under the United States Bankruptcy Code (or similar action under any
successor law or under any comparable law), made a general assignment for the
benefit of creditors, had filed against it any petition or other application for
relief under the United States Bankruptcy Code (or similar action under any
successor law or under any comparable law), failed, suspended business
operations, become insolvent, called a meeting of its creditors for the purpose
of obtaining any financial concession or accommodation, or had or suffered a
receiver or a trustee to be appointed for all or a significant portion of its
assets or affairs;
(r) such Account is not determined in U.S.
Dollars;
(s) the Borrower or any other party to such
Account, is in default in the performance or observance of any of the terms
thereof in any material respect;
(t) the Borrower does not have good and
marketable title to such Account as sole owner of such Account; or
(u) it is an Eligible Municipal Approved
Exception Account, and the aggregate outstanding amount of all invoiced Eligible
Municipal Approved Exception Accounts exceeds $5,000,000.00, but only to the
extent of such excess.
"Eligible Inventory" means all salt mined, weighed and
on the surface and/or stockpiled and prepared to specifications for sale by the
Borrower at the lower of cost or market price determined in accordance with GAAP
that is subject to a first priority perfected security interest in favor of the
Agent for the benefit of the Lenders, and meets the following additional
requirements:
(a) the inventory is lawfully owned by
Borrower and Borrower has the right to assign the inventory and the power to
grant a security interest therein;
(b) the inventory is not subject to a Lien
other than in favor of the Agent and the Trustee as the junior collateral agent
for the ratable benefit of the holders of the Senior Second Secured Notes so
long as such Lien is subject to the Intercreditor Agreement;
(c) no account or document has been created
or issued with respect to the inventory;
(d) each representation and warranty with
respect to the inventory made by Borrower to the Agent or Collateral Agent in
any Security Agreement or any other agreement executed by Borrower is true and
complete; and
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(e) the Agent has not notified Borrower that any
type or class of inventory is, in Agent's reasonable judgment, unsatisfactory.
"Eligible Municipal Approved Exception Account" means
any account of Borrower or any Guarantor where the account debtor is a municipal
corporation or similar Governmental Authority and the Borrower has entered into
an agreement to sell salt during the months of March through July of each year
with deferred billing payment terms not exceeding the lesser of seven (7) months
from shipment or November 30th of the same year for which the salt was sold, and
no portion of the account remains unpaid for a period of thirty (30) days beyond
the due date, provided, however, that to be considered an Eligible Municipal
Approved Exception Account, the purchased inventory subject to the deferred
billing shall have been shipped to the municipality and the municipality shall
have taken title thereto. For purposes of calculating Eligible Accounts
Receivable, the Agent may determine in its discretion not to include within such
calculation any new Eligible Municipal Approved Exception Accounts, when the
aggregate then outstanding amount of all invoiced Eligible Municipal Approved
Exception Accounts exceeds $5,000,000, but only to the extent of such excess.
After the exclusion of the requirements of (a) and (b) under the definition of
the Eligible Accounts Receivable, all other conditions of the definition of
Eligible Accounts Receivable (i.e., those requirements contained in (c) through
(t)) shall, taken together with the requirements outlined in this definition
govern the eligiblity of all Eligible Municipal Approved Exception Accounts.
"Environmental Assessment" means each assessment, report
or audit relating to environmental conditions affecting, or compliance with any
Environmental Law by, the Borrower or the Project, each such assessment, report
or audit to be satisfactory in form and substance to the Agent and to be
performed by a consulting firm satisfactory to the Agent.
"Environmental Laws" means any and all laws, rules,
orders, regulations, statutes, ordinances, guidelines, codes, decrees, or other
legally enforceable requirement (including, without limitation, common law) of
the United States or Canada, or any state, local, municipal or other
Governmental Authority, regulating, relating to or imposing liability or
standards of conduct concerning protection of the environment or of human
health, or employee health and safety, or damages to natural resources, as has
been, is now, or may at any time hereafter be, in effect.
"Equity Holder" means (a) with respect to a corporation,
each holder of stock of such corporation, (b) with respect to a limited
liability company or similar entity, each member of such limited liability
company or similar entity, (c) with respect to a partnership, each partner of
such partnership, (d) with respect to an entity described in clause (a)(iv) of
the definition of "Flow Through Entity," the owner of such entity, and (e) with
respect to a trust described in clause (a)(v) of the definition of "Flow Through
Entity," the persons treated for Federal income tax purposes as the owners of
the trust property.
"Equity Offering" means an underwritten public offering
of Capital Stock of the Borrower or any holding company or Subsidiary of the
Borrower pursuant to a registration statement filed with the SEC (other than on
Form S-8) or any private placement of Capital Stock
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of the Borrower or any holding company or Subsidiary of the Borrower to any
Person other than issuances upon exercise of options by employees of any holding
company, the Borrower or any of its Subsidiaries.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended from time to time.
"ERISA Insolvency" means, 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.
"Eurocurrency Reserve Requirements" means, with respect
to any Interest Period, the reserve percentage (expressed as a decimal) in
effect from time to time during such Interest Period, as provided by the Federal
Reserve Board, or any other Governmental Authority, applied for determining the
maximum reserve requirements (including, without limitation, basic,
supplemental, marginal and emergency reserves) applicable to M&T under
Regulation D of the of the Board of Governors of the Federal Reserve System with
respect to "Eurocurrency liabilities" within the meaning of Regulation D, or
under any similar or successor regulation with respect to Eurocurrency
liabilities or Eurocurrency funding.
"Event of Default" means any of the events specified as
such in Section 10; provided, that any requirement for the giving of notice, the
lapse of time, or both, or for the happening of any other condition, has been
satisfied.
"Event of Loss" means any of the following events: (a)
loss of the Facility, the Leased Premises (in its entirety or a substantial
portion thereof such that the then remaining portion of the Facility or the
Leased Premises cannot practically be utilized at the level of operation so as
to permit the Borrower to fulfill its obligations under this Agreement, the
Senior Second Secured Note Documents or the Land Lease Agreement) or the use
thereof due to destruction, damage beyond repair or rendition of the Facility or
the Leased Premises permanently unfit for normal use by the Borrower for any
reason whatsoever; (b) any damage to the Facility or the Leased Premises that
results in an insurance settlement with respect to the Facility on the basis of
a total loss; (c) the condemnation, confiscation or seizure of, or requisition
of title to, or the use of, the Facility or the Leased Premises (in its entirety
or a substantial portion thereof such that the then remaining portion of the
Facility or the Leased Premises cannot practically be utilized at the level of
operation so as to permit the Borrower to fulfill its obligations under this
Agreement, the Senior Second Secured Note Documents or the Land Lease Agreement)
for a period which the Agent believes is more likely than not to be in excess of
two hundred seventy (270) consecutive days (or for a shorter period ending on
the date on which an insurance settlement with respect to the Facility or the
Leased Premises on the basis of a total loss shall occur); or (d) the
prohibition of the use of the Facility, the Leased Premises (in its entirety or
a substantial portion thereof such that the then remaining portion of the
Facility or the Leased Premises cannot practically be utilized at the level of
operation contemplated in the Projections and so as to permit the Borrower to
fulfill its obligations under the Credit Documents), as a result of an
Applicable Law or action by any Governmental Authority, for a
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period which the Agent believes is more likely than not to be in excess of two
hundred seventy (270) consecutive days.
"Excess Cash Flow" means with respect to any Person and
its Subsidiaries for any period: (a) the Adjusted EBITDA of such Person for such
period, minus (b) the sum, without duplication, of all of the following paid by
the Person during such period (i) all principal payments made to other creditors
on Indebtedness during such period, (ii) all Capital Expenditures which are not
funded with Indebtedness (excluding Revolving Loans and Standby L/Cs), and (iii)
all income taxes, minus (c) the sum, without duplication, of all of the
following:(i) the Permitted Net Income Distribution Annual Allowance plus the
Permitted Tax Distribution Annual Allowance for such period, (ii) all Interest
Expense less interest income, (iii) NOMIPS, and (iv) the Term Loan Scheduled
Amortization Payments during the period (which by definition, does not include,
mandatory payments according to Sections 5.2(a) and 5.2(c)), regardless of
whether applied to the repayment of the Credit Obligations or deposited by the
Collateral Agent (at the direction of the Agent) into the Sinking Fund
Collateral Account. Notwithstanding the foregoing, in calculating Excess Cash
Flow: (x) the principal repayment in full of the Helaba Debt made on or about
March 17, 2004, and the $1,789,000 payment of principal on the Helaba Debt that
was made on or about August 1, 2003, will not be included within the calculation
for Excess Cash Flow, provided, however, that the Borrower's $1,880,000 payment
of principal on the Helaba Debt that would have been made on or about March 31,
2004, will be included in the calculation for Excess Cash Flow. To the extent
that any obligations in respect of performance, bid or surety bonds and
completion guarantees provided by the Borrower and its subsidiaries are expensed
in the ordinary course of business, such obligations will not be included in the
calculation of Excess Cash Flow as principal payments made to other such
creditors during such period.
"Facility" means the salt mine located on the Leased
Premises (including all tunnels, galleries and shafts whether above ground or
below), including all equipment, buildings and fixtures related thereto.
"Federal Funds Rate" shall mean, for any day, the per
annum rate equal to 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 that
is a Business Day, the average quotations, for the day, of such transactions
received by the Agent from three federal funds brokers of recognized standing
selected by the Agent.
"Fee Letter" means the letter agreement dated February
20, 2004, relating to certain fees payable by the Borrower to M&T for its
account with respect to the transactions contemplated by this Agreement, as
amended, modified or supplemented from time to time.
"Fiscal Quarter" means the three (3) month period ending
on or around March 31, June 30, September 30 and December 31 of each year.
"Fiscal Year" means the twelve (12) month period ended
September 30th of each calender year.
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"Fixed Charges" means with respect to any Person and its
Subsidiaries for any period the sum of the following, without duplication: (a)
the Term Loan Scheduled Amortization Payments (which by defintion, does not
include, mandatory payments according to Sections 5.2(a) and 5.2(c)) during the
period regardless of whether to be applied to the repayment of the Credit
Obligations or to be deposited by the Collateral Agent (at the direction of the
Agent) in the Sinking Fund Collateral Account, (b) all other principal payments
on all other Indebtedness made for such period, (c) all Capital Expenditures and
NOMIPS payments made for such period (excluding the Permitted Extraordinary
NOMIPS Distributions, (d) the Projected Distributions plus the amount of all
actual distributions paid by Borrower to its members for such period (other than
Permitted Extraordinary Distributions) (e) all Interest Expense less interest
income received, and (f) Taxes paid or accrued for the own account of such
Person for such period. Notwithstanding the foregoing, in calculating Fixed
Charges (x) the principal repayment in full of the Helaba Debt made on or about
March 17, 2004, and the $1,789,000 payment of principal on the Helaba Debt that
was made on or about August 1, 2003, will not be included within the calculation
for Fixed Charges, provided, however, that the Borrower's $1,880,000 payment of
principal on the Helaba Debt that would have been made on or about March 31,
2004, will be included in the calculation for Fixed Charges, and (y) all
Projected Distributions and distributions paid by Borrower during the period
from September 30th each year until April 30th of the following year shall be
reflected in the Fiscal Quarter ending on such September 30th. Notwithstanding
anything to the contrary contained in this Agreement, the calculations to be
made in accordance with this definition of Fixed Charges will be used by the
Agent and the Lenders to determine compliance by the Borrower and any its
Subsidiaries (on a consolidated basis) with the financial covenants outlined in
Sections 9.1 through 9.10, and it is not expected that the information
calculated in accordance with subsection (y) of this definition of Fixed Charges
will be reflected in the same manner on the Borrower's or any of its
Subsidiaries financial statements for the same period. To the extent that any
obligations in respect of performance, bid or surety bonds and completion
guarantees provided by the Borrower and its subsidiaries are expensed in the
ordinary course of business, such obligations will not be included in the
calculation of Fixed Charges as principal payments made to other such creditors
on Indebtedness during such period.
"Fixed Charge Coverage Ratio" means, with respect to any
Person as of the date of determination, the ratio of (a) the Adjusted EBITDA of
such Person for the four (4) previous Fiscal Quarters ending on such date, over
(b) the Fixed Charges of such Person for the same period.
"F-K" means a joint venture of Frontier-Xxxxxx
Constructors, Indiana corporation, and Flatiron Structures LLC, a limited
liability company organized under the laws of Colorado.
"F-K Construction Contract" means the Construction
Agreement, dated as of October 26, 1998, by and between the Borrower and F-K, as
amended.
"X-X Xxxx" means the mechanics' lien in the amount of
$29,218,285 filed on or about October 29, 2001 against the Project and the
Leased Premises by F-K.
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"F-K Litigation" means the litigation commenced by the
amended complaint filed by F-K against Borrower dated September 24, 2001 in the
United States District Court for the Western District of New York (Case No. 01
CV 6217) and the claims of F-K made therein and all related counterclaims,
cross-claims and other proceedings of any kind.
"Flow Through Entity" means an entity that (a) for
federal income tax purposes constitutes (i) an "S corporation" (as defined in
Section 1361(a) of the Code), (ii) a "qualified subchapter S subsidiary" (as
defined in Section 1361(b)(3)(B) of the Code), (iii) a "partnership" (within the
meaning of Section 7701(a)(2) of the Code) other than a "publicly traded
partnership" (as defined in Section 7704 of the Code), (iv) a business entity
that is disregarded as an entity separate from its owners under the Code, any
Regulations, or any published administrative guidance of the Internal Revenue
Service or (v) a trust to the extent its income is includible in the taxable
income of the grantor or another person under Sections 671 through 679 of the
Code (each of the entities described in the preceding clauses (i), (ii), (iii),
(iv) and (v), a "Federal Flow Through Entity"), and (b) for state and local
jurisdictions is subject to treatment on a basis under applicable state or local
income tax law substantially similar to a Federal Flow Through Entity.
"Foreign Subsidiary" means any Subsidiary of the
Borrower that is not a Domestic Subsidiary.
"Funding Account" means the account established at M&T
into which all proceeds of the Loans under this Agreement shall be deposited by
the Agent.
"Funded Indebtedness" means as of any date, the sum of
the following (without duplication): (a) the outstanding principal amount of all
Indebtedness which is classified as "long-term debt" on a consolidated balance
sheet of Borrower and its Subsidiaries prepared as of such date in accordance
with GAAP (subject to year-end audit adjustments with respect to non-year end
periods) and any current maturities and other principal amount in respect of
such Indebtedness due within one year but which was classified as "long-term
debt" at the creation thereof; (b) the outstanding principal amount of
Indebtedness for borrowed money of Borrower and its Subsidiaries outstanding
under a revolving credit, term or similar agreement (and renewals and extensions
thereof); (c) the borrowing of money or the obtaining of credit, including the
issuance of notes or bonds (but excluding surety, performance or bid bonds), (d)
the deferred purchase price of assets (other than trade or other payables and
accrued expenses incurred in the ordinary course of business), with respect to
any Synthetic Lease Obligations or any Capital Lease Obligations the outstanding
principal amount of Indebtedness in respect of such Synthetic Lease Obligations
or Capital Lease Obligations of Borrower and its Subsidiaries, (e) the Stated
Amount of the Surety L/C less the Sinking Fund Collateral Account Value, plus
(f) Indebtedness of the type referred to in clauses (a) through (d) above of
another Person guaranteed by the Borrower or any of its Subsidiaries.
"GAAP" means generally accepted accounting principles as
from time to time in effect, including the statements and interpretations of the
United States Financial Accounting Standards Board; provided, however, that for
purposes of compliance with Section 9
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and determining the Applicable Margin and whether distributions are permitted
under Section 9.2 and all related definitions, (a) "GAAP" means such principles
as in effect on December 31, 2003 as applied by the Borrower and its
Subsidiaries in the preparation of the audited financial statements referred to
in Section 6.8, and consistently followed, without giving effect to any
subsequent changes thereto and (b) in the event of a change in generally
accepted accounting principles after such date, either the Borrower or the
Required Lenders may request a change in the definition of "GAAP", in which case
the parties hereto shall negotiate in good faith with respect to an amendment of
this Agreement implementing such change, provided, however, if no agreement is
reached, then no change or amendment shall be made.
"Governmental Approvals" means authorizations, consents,
approvals, waivers, exemptions, variances, franchises, permissions, permits and
licenses of, and filings and declarations with, any Governmental Authority.
"Governmental Authority" means any nation or government,
any state or other political subdivision thereof and any entity of competent
authority exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
"Guarantee Obligation" means, with respect to the
Borrower (or other specified Person):
(a) any guarantee by the Borrower (or such
specified Person), of the payment or performance of, or any contingent
obligation by the Borrower (or such specified Person), in respect of, any
Indebtedness or other obligation of any primary obligor;
(b) any other arrangement whereby credit is
extended to a primary obligor on the basis of any promise or undertaking of the
Borrower (or such specified Person), including any binding "comfort letter" or
"keep well agreement" written by the Borrower (or such specified Person), to a
creditor or prospective creditor of such primary obligor, to (i) pay the
Indebtedness of such primary obligor, (ii) purchase an obligation owed by such
primary obligor, (iii) pay for the purchase or lease of assets or services
regardless of the actual delivery thereof or (iv) maintain the capital, working
capital, solvency or general financial condition of such primary obligor;
(c) any liability of the Borrower (or such
specified Person) as a general partner of a partnership in respect of
Indebtedness or other obligations of such partnership;
(d) any liability of the Borrower (or such
specified Person) as a joint venturer of a joint venture in respect of
Indebtedness or other obligations of such joint venture;
(e) any liability of the Borrower (or such
specified Person) with respect to the tax liability of others as a member of a
group (other than a group consisting solely of the Borrower and its
Subsidiaries) that is consolidated for tax purposes; and
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(f) reimbursement obligations, whether
contingent or matured, of the Borrower (or such specified Person) with respect
to letters of credit, bankers acceptances, surety bonds, other financial
guarantees and Interest Rate Protection Agreements (without duplication of other
Indebtedness supported or guaranteed thereby), whether or not any of the
foregoing are reflected on the balance sheet of the Borrower (or such specified
Person) or in a footnote thereto; provided, however, that the term "Guarantee
Obligation" shall not include endorsements for collection or deposit in the
ordinary course of business. The amount of any Guarantee Obligation and the
amount of Indebtedness resulting from such Guarantee Obligation shall be the
maximum amount that the guarantor may become obligated to pay in respect of the
obligations (whether or not such obligations are outstanding at the time of
computation).
"Guarantor" means each of the Borrower's Domestic
Subsidiaries that executes a Subsidiary Guaranty and a Subsidiary Security
Agreement pursuant to Section 8.20 in favor of Agent for the ratable benefit of
the Lenders.
"Hedge Agreement" means, collectively, Currency Exchange
Agreements and Interest Rate Protection Agreements.
"Helaba Debt" means the outstanding amounts of
indebtedness and liabilities under the Amended and Restated Loan Agreement dated
as of September 27, 1999, as amended from time to time, by and among the
Borrower, the financial institutions from time to time party thereto, Landesbank
Hessen-Thuringen Girozentrale, as administrative agent for the financial
institutions from time to time party thereto and as an issuer of letters of
credit under the above-referenced Loan Agreement and General Electric Capital
Corporation, as an issuer of letters of credit under the above-referenced Loan
Agreement and as project agent for the financial institutions from time to time
party thereto.
"XXX" means the Xxxxxxxxxx County Industrial Development
Agency, a public benefit corporation of the State of New York.
"XXX/Borrower Mortgage" means the mortgage granted by
the XXX and the Borrower on the Leased Premises and all of Borrower's mineral
rights in favor of the Collateral Agent for the ratable benefit of the Lenders,
substantially in the form of Exhibit C, creating a Lien on the Leased Premises
and all of Borrower's mineral rights, as the same may be amended, supplemented
or otherwise modified from time to time.
"Immaterial Subsidiary" means, at any time, any Domestic
Subsidiary of the Borrower having total assets (as determined in accordance with
GAAP) with a book value in the amount of less than 1% of the consolidated total
assets of the Borrower and its Domestic Subsidiaries; provided, however, that
(a) the total assets (as so determined) of all Immaterial Subsidiaries shall not
have a book value in excess of $1,000,000 (in the aggregate), (b) Borrower has
not provided collateral or a guaranty to any creditor of such Subsidiary and (c)
such Subsidiary has not provided collateral or a guaranty to the holders of the
Senior Second Secured Notes or to secure any credit or obligations of the
Borrower.
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"Indebtedness" means, as to any Person at any date,
without duplication, (a) all indebtedness of such Person for borrowed money, (b)
all obligations of such Person for the deferred purchase price of property or
services other than trade payables and accrued expenses incurred in the ordinary
course (other than payments made to F-K), (c) all obligations of such Person
evidenced by notes, bonds, debentures or other similar instruments (other than
an operating lease), (d) all indebtedness created or arising under any
conditional sale or other title retention agreement (other than an operating
lease) with respect to property acquired by such Person (even though the rights
and remedies of the seller or lender under such agreement in the event of
default are limited to repossession or sale of such property), (e) all Capital
Lease obligations of such Person, (f) all obligations of such Person, contingent
or otherwise, as an account party under acceptances, surety bonds or similar
arrangements (other than obligations arising out of endorsements of instruments
for deposit or collection in the ordinary course of business), (g) all unpaid
reimbursement obligations of such Person in respect of drawings under letters of
credit and the stated amount of all letters of credit issued for the account of
such Person, (h) all Guarantee Obligations of such Person in respect of
obligations of the kind referred to in clauses (a) through (f) above, (i)
without limitation of the foregoing, all obligations of the kind referred to in
clauses (a) through (h) above secured by (or for which the holder of such
obligation has an existing right, contingent or otherwise, to be secured by) any
Lien on property (including accounts and contract rights) owned by such Person,
whether or not such Person has assumed or become liable for the payment of such
obligation, provided that the amount of any such obligation shall be deemed to
be the lesser of the face principal amount thereof and the fair market value of
the property subject to such Lien, (j) all obligations of such Person in respect
of Hedge Agreements and (k) all obligations of such Person related to
Disqualified Capital Stock issued by such Person.
"Intercreditor Agreement" means the Intercreditor
Agreement in the form of Exhibit D to be executed on the Closing Date by M&T, as
senior collateral agent and representative for the Lenders and U.S. Bank
National Association, as trustee (the "Trustee"), under the Senior Second
Secured Notes Indenture dated as of March 17, 2004 by and among the Trustee and
the holders of the Senior Second Secured Notes, in its capacity as junior
collateral agent for the Trustee and holders of the Senior Second Secured Notes.
"Interest Expense" means, with respect to any Person for
any period, the aggregate of the interest expense of such Person and its
Subsidiaries for such period, on a consolidated basis, as determined in
accordance with GAAP, and including, without duplication, (a) all amortization
or accretion of original issue discount or premium; (b) the interest component
of Indebtedness constituting Capitalized Leases paid, accrued and/or scheduled
to be paid or accrued by such Person and its Subsidiaries during such period;
(c) net cash costs under all Hedge Agreement (including amortization of fees);
(d) without duplication any periodic commitment fees and other fees payable to
the Agent, the Collateral Agent or the Lenders pursuant to the Credit Documents;
and (e) without duplication, any periodic fees paid by the Borrower to other
creditors, which fees shall be related to or arising out of any Indebtedness
owed to other creditors.
"Interest Payment Date" means (a) as to Base Rate Loans,
the last day of each calendar month, commencing on the first such day to occur
after any Base Rate Loans are
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made or any LIBOR Loans are converted to Base Rate Loans, (b) as to any LIBOR
Loan in respect of which the Borrower has selected an Interest Period of one,
two or three months, the last day of such Interest Period, (c) as to any LIBOR
Loan in respect of which the Borrower has selected a longer Interest Period than
the periods described in clause (b), at the end of each ninety (90) day period
following the making of such a LIBOR Loan and the last day of such Interest
Period, and (d) in the case of all Loans each day of payment or prepayment of
the principal amount of the Loan.
"Interest Period" means, with respect to each LIBOR
Loan:
(a) initially, the period from and including
the Borrowing Date with respect to such Loan and ending one, two, three, six or
twelve months thereafter (such period extending to, but excluding, the
numerically corresponding day in such ending month), as selected by the Borrower
in its Notice of Revolving Loan Borrowing given pursuant to Section 2.3, or in
its Notice of Term Loan Borrowing given pursuant to Section 4.3; and
(b) thereafter, each period from and
including the day following the last day of the immediately preceding Interest
Period applicable to such Loan and ending one, two, three, six or twelve months
thereafter (such period extending to, but excluding, the numerically
corresponding day in such ending month), as selected by the Borrower by
irrevocable notice to the Agent not less than three (3) Business Days prior to
the last day of the then current Interest Period with respect thereto;
provided, that the foregoing provisions are subject to the following:
(i) if any Interest Period would
otherwise end on a day that is not a Working Day, such Interest Period shall be
extended to the next succeeding Working Day unless the result of such extension
would be to extend such Interest Period into another calendar month, in which
event such Interest Period shall end on the immediately preceding Working Day;
(ii) any Interest Period with respect
to a Revolving Loan that would otherwise extend beyond the Revolving Credit
Maturity Date shall end on the Revolving Credit Maturity Date or, if such day
shall not be a Working Day, on the preceding Working Day; provided, however,
that each Lender's Revolving Credit Commitment Percentage of a single Revolving
Borrowing requested by the Borrower shall have the same Interest Period;
(iii) any Interest Period with respect
to a Term Loan that would otherwise extend beyond the Term Loan Maturity Date
shall end on the Term Loan Maturity Date or, if such day shall not be a Working
Day, on the preceding Working Day; and
(iv) any Interest Period that begins
on the last Working 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 Working Day of a calendar month.
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"Interest Rate Protection Agreement" means any interest
rate swap, interest rate cap, interest rate hedge or other contractual
arrangement that converts variable interest rates into fixed interest rates,
fixed interest rates into variable interest rates or other similar arrangements.
"Investment" means
(a) with respect to the Borrower (or other
specified Person):
(i) any share of capital stock,
partnership or other equity interest, evidence of Indebtedness or other security
issued to the Borrower (or other specified Person) by any other Person;
(ii) any loan, advance or extension
of credit by the Borrower (or other specified Person) to, or contribution by the
Borrower (or other specified Person) to the capital of, any other Person;
(iii) any transactions giving rise to
a Guarantee Obligation by the Borrower (or other specified Person);
(iv) any acquisition by the Borrower
(or other specified Person) of all or a material part of the business of any
other Person or the assets comprising such business or part thereof, excluding
purchases of inventory and other items in the ordinary course of business; and
(v) any other similar investment.
(b) The investments described in the clause
(a) above shall be included in the term "Investment" whether they are made or
acquired by purchase, exchange, issuance of stock or other securities, merger,
reorganization or any other method.
"Land Lease Agreement" means the Lease Agreement, dated
as of September 1, 1998, between the Borrower and the XXX, as amended, modified
or supplemented from time to time.
"Leased Premises" means the land on which the Facility
is located (as more particularly described in Schedule 1), which is owned by the
XXX in fee simple and leased to the Borrower pursuant to the Land Lease
Agreement.
"L/C Application" means any application for a Letter of
Credit made by Borrower to the Letters of Credit Issuer.
"L/C Fee Rate" means the Applicable Margin then in
effect with respect to the column entitled "L/C Fee Rate" in the pricing grid
contained in the definition of Applicable Margin.
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"Lender" means, at any time, any financial institution
party to this Agreement in such capacity at such time, including any such Person
becoming a party hereto pursuant to the provisions of Section 12.7, and its
successors and assigns, and "Lenders" means, at any time, all of the financial
institutions party to this Agreement in such capacity at such time, including
any such Persons becoming parties hereto pursuant to the provisions of Section
12.7, and their successors and assigns. All Lenders party to this Agreement are
listed on Appendix A, which may from time to time be amended and modified when
any Lender becomes a party to this Agreement after the date of this Agreement
and pursuant to the provisions of Section 12.7.
"Letters of Credit" mean all Standby L/Cs and the Surety
L/C.
"Letter of Credit Fees" means the Standby L/C Fees and
the Surety L/C Fees. "Letters of Credit Exposure" means the Total Standby L/Cs
Exposure and the Total Surety L/C Exposure.
"Letters of Credit Issuer" means M&T as the issuer of
the Standby L/Cs and the Surety L/C pursuant to the terms of this Agreement.
"Leverage Ratio" means, as to any Person as of the date
of its determination, the ratio of (a) such Person's Adjusted Funded
Indebtedness as of such date, to (b) such Person's Adjusted EBITDA for the four
(4) Fiscal Quarters ended as of such date.
"LIBOR" means for any LIBOR Interest Period:
(a) an interest rate per annum at which U.S.
dollar deposits are offered in the London interbank market in an amount
approximately equal to the portion of the Loan subject to the LIBOR Rate for a
period of time equal to such Interest Period that appears on Page 3750 of the
Dow Xxxxx Markets Service (or on an successor to or substitute for such service,
providing rate quotations comparable to those currently provided on such page of
such service), as determined by the Agent after 11:00 a.m. (London time) on the
day that is two (2) Working Days prior to the first day of such Interest Period;
(b) if no such rate appears on the Telerate
Page 3750, the rate of interest determined by the Agent to be the average of up
to four interest rates per annum at which U.S. Dollar deposits are offered in
the London interbank market in an amount approximately equal to the portion of
the Loan subject to the LIBOR Rate, for a period of time equal to such Interest
Period which appear on the Xxxxxx'x Screen LIBO Page as of 11:00 a.m. (London
time) two (2) Working Days prior to the Working Day on which such Interest
Period begins if at least two such offered rates so appear on the Xxxxxx'x
Screen LIBO Page, or
(c) if no such rate appears on the Telerate
Page 3750 and fewer than two offered rates appear on the Xxxxxx'x Screen LIBO
Page, the rate of interest at which deposits in an amount approximately equal to
the portion of the Loan as to which the related LIBOR Rate has been elected and
which have a term corresponding to such Interest Period are offered to the Agent
by first class banks in the London inter-bank market for delivery in
-23-
immediately available funds at a LIBOR Office on the first day of such Interest
Period as determined by the Agent at approximately 11:00 a.m. (London time) two
(2) Working Days prior to the date upon which such Interest Period is to
commence (which determination by shall, in the absence of manifest error, be
conclusive).
"LIBOR Loans" means the Loans which bear an interest
rate based on the LIBOR Rate.
"LIBOR Rate" means, with respect to each LIBOR Loan for
each LIBOR Interest Period applicable thereto, the rate per annum (rounded
upwards to the nearest whole multiple of 1/100th of one percent) equal to (a)
the quotient of (i) LIBOR, divided by (ii) 1.00 minus the Eurocurrency Reserve
Requirements, plus (b) the Applicable Margin for LIBOR Loans; provided, however,
that if at any time during such Interest Period the Eurocurrency Reserve Rate
applicable to any outstanding LIBOR Rate changes, the LIBOR Rate for such LIBOR
Interest Period shall automatically be adjusted to reflect such change,
effective as of the date of such change to the extent required by the applicable
Requirements of Law implementing the change in the Eurocurrency Reserve Rate.
"Lien" means any mortgage, deed of trust, security
interest, pledge, hypothecation, assignment, deposit arrangement, encumbrance,
lien (statutory or other) preference, priority or other security agreement or
preferential arrangement of any kind whatsoever.
"Limited Liability Company Pledge Agreement" means the
limited liability company pledge agreement among the pledgors party thereto, and
the Collateral Agent for the ratable benefit of the Lenders to be executed at
the Closing in the form of Exhibit E.
"Loans" means the Revolving Loans and the Term Loans
made by the Lenders pursuant to this Agreement.
"M&T" means Manufacturers and Traders Trust Company, a
New York banking corporation, and its subsidiaries and/or affiliates, and their
respective successors and assigns. For purposes of this Agreement, Allied Irish
Banks, PLC shall not be considered an affiliate of M&T.
"Material Adverse Effect" means any event or condition
that has had or could in the reasonable opinion of the Agent, be reasonably
expected to have a material adverse effect on: (a) the business, assets,
financial condition or income of the Borrower and its Subsidiaries (on a
consolidated basis), or (b) the ability of the Borrower or any of its
Subsidiaries to perform their obligations in all material respects under the
Credit Documents (on a consolidated basis), or (c) the enforceability of any
Senior Security Agreement or the attachment, perfection or priority of any
material portion of the Liens intended to be created thereby, or (d) the
validity of any of the Credit Documents or the consummation of any of the
transactions contemplated therein.
-24-
"Material Contracts" means the Land Lease Agreement, the
Union Contract, the Operating Agreement, the Bonding Company Indemnity
Agreement, Transamerica Guaranty, and each other contract or arrangement to
which the Borrower or any of its Subsidiaries is a party for which breach,
non-performance, cancellation or failure to renew could be expected to have a
Material Adverse Effect.
"Materials of Environmental Concern" means any gasoline
or petrol (including crude oil or any fraction thereof) or petroleum products,
polychlorinated biphenyls, urea-formaldehyde insulation, asbestos, pollutants,
contaminants, radioactivity, and any other substances or forces of any kind,
whether or not any such substance or force is defined as hazardous or toxic
under any Environmental Law, that is regulated pursuant to or could give rise to
liability under any Environmental Law.
"Mortgages" means the mortgages, deeds of trust, deeds
to secure the Credit Obligations or other similar documents securing Liens on
real property owned or leased by the XXX and/or the Borrower and/or the Leased
Premises (including the XXX/Borrower Mortgage), as well as the other Collateral
secured by and described in the mortgages, deeds of trust, deeds to secure the
Credit Obligations or other similar documents.
"Multiemployer Plan" means a Plan which is a
multiemployer plan as defined in Section 4001(a)(3) of ERISA.
"Net Capital Gain" has the meaning set forth in Code
Section 1222.
"Net Long-Term Capital Loss" has the meaning set forth
in Code Section 1222.
"Net Short-Term Capital Gain" has the meaning set forth
in Code Section 1222.
"Net Income" means, with respect to any Person, for any
period, the aggregate net income (or loss) of such Person and its Subsidiaries
for such period on a consolidated basis, determined in accordance with GAAP;
provided, however, that there shall be excluded therefrom:
(a) after-tax gains and losses from Asset
Sales or abandonments or reserves relating thereto;
(b) after-tax items classified as
extraordinary gains or losses;
(c) the net income (but not loss) of any
Subsidiary of such Person to the extent that the declaration of dividends or
similar distributions by that Subsidiary of that income is restricted by a
contract, operation of law or otherwise;
(d) the net income of any other Person,
except to the extent of cash dividends or distributions paid to such Person with
respect to whom the Net Income
-25-
calculation is being determined or to a wholly-owned Subsidiary of the such
Person by such Person;
(e) any restoration to income of any
material contingency reserve or accrued liability, except to the extent that
provision for such reserve was made out of Net Income accrued at any time
following the Closing Date;
(f) the cumulative effect of a change in
accounting principles;
(g) non-cash charges resulting from the
impairment of intangible assets; and
(h) in the case of a successor to such
Person by consolidation or merger or as a transferee of the such Person's
assets, any earnings of the successor corporation prior to such consolidation,
merger or transfer of assets.
"NOMI Holders" means those Persons defined as such in
Section 2.8 of the Operating Agreement.
"NOMIPS" means amounts calculated as 2.5% of gross
income from the salt mine located on the Leased Premises operated by the
Borrower that have been earned by the NOMI Holders with respect to non-operating
mineral interests pursuant to Section 2.8 of the Operating Agreement.
"NOMIPS Subordination Agreement" means the agreement in
the form of Exhibit F attached hereto to be executed on the Closing Date by the
Collateral Agent and the NOMI Holders.
"Notes" means any or all of the Revolving Loan Notes and
the Term Loan Notes.
"Notice of Revolving Loan Borrowing" means a notice in
substantially the form of Exhibit B.
"Notice of Term Loan Borrowing" means a notice delivered
pursuant to Section 4.3, in substantially the form of Exhibit G.
"Operating Agreement" means the Amended and Restated
Operating Agreement of the Borrower, dated as of October 30, 1998, as amended
through the date hereof, but not hereafter without the consent of the Agent.
"PBGC" means the Pension Benefit Guaranty Corporation.
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"Permitted Extraordinary Distributions" means any
distributions to any member of the Borrower to the extent funded from (a) the
net proceeds of the Senior Second Secured Notes issued on the Closing Date, (b)
the proceeds of any Term Loans made hereunder to the extent not required to be
used to pay the Surety L/C Reimbursement Obligations hereunder, all accrued
interest thereon and other amounts due in connection therewith and (c) funds
released from the Sinking Fund Collateral Account to the Borrower in accordance
with the terms of the Credit Documents.
"Permitted Extraordinary NOMIPS Distribution" means the
$3,172,000 of distributions made to the NOMI Holders to be paid on or about
March 17, 2004 from the proceeds of the Senior Second Secured Notes.
"Permitted Holders" means Xxxxxxx X. Xxxxxxx, Xxxxxx X.
Xxxxx and Xxxx X. Xxxxx and any of their respective Related Parties.
"Permitted Indebtedness" means:
(a) Indebtedness in respect of the Credit
Obligations;
(b) Indebtedness under the Senior Second
Secured Notes in an aggregate outstanding principal amount not to exceed
$100,000,000 (which aggregate outstanding principal amount may from time to time
be reduced by the payments made in accordance with the Senior Second Secured
Notes, and which aggregate outstanding principal amount cannot be increased at
any time or from time to time) and the related Guarantee Obligations under the
Senior Second Secured Notes Indenture, less any payments made with respect
thereto or any amounts paid for the repurchase thererof;
(c) Indebtedness outstanding on the date
hereof and described in Schedule 2 and all refinancings and extensions thereof
not in excess of the amount thereof outstanding immediately prior to such
refinancing or extension, trade payables or other similar short term
indebtedness incurred in the ordinary course of business not representing
obligations for borrowed money;
(d) trade payables and accrued expenses
incurred in the ordinary course of business , including NOMIPS;
(e) obligations in respect of performance,
bid and surety bonds and completion guarantees provided by the Borrower and its
Subsidiaries in the ordinary course of business; (f) obligations with respect to
the Bond.
(g) Interest Rate Protection Agreements of
the Borrower or any Subsidiary of the Borrower entered into in the ordinary
course of business covering Permitted Indebtedness of the Borrower or any of its
Subsidiaries; provided, however, that such Interest Rate Protection Agreements
are entered into for the purpose of fixing or hedging interest rates with
respect to any fixed or variable rate Permitted Indebtedness that is permitted
by the
-27-
Agreement to be outstanding to the extent that the notional amount of any such
Interest Rate Protection Agreements does not exceed the principal amount of
Permitted Indebtedness to which such Interest Rate Protection Agreement relates;
(h) Indebtedness under Currency Exchange
Agreements entered into in the ordinary course of business; provided that in the
case of Currency Exchange Agreements which relate to Permitted Indebtedness,
such Currency Agreements do not increase the Permited Indebtedness of the
Borrower and its Subsidiaries outstanding other than as a result of fluctuations
in foreign currency exchange rates or by reason of fees, indemnities and
compensation payable thereunder;
(i) intercompany Indebtedness of the
Borrower or a Guarantor for so long as such Indebtedness is held by the Borrower
or a Guarantor; provided that if as of any date any Person other than the
Borrower or a Guarantor owns or holds any such Indebtedness or holds a Lien in
respect of such Indebtedness, such date shall be deemed the incurrence of
Indebtedness not constituting Permitted Indebtedness under this clause (h) by
the issuer of such Indebtedness;
(j) Indebtedness arising from the honoring
by a bank or other financial institution of a check, draft or similar instrument
inadvertently (except in the case of daylight overdrafts) drawn against
insufficient funds in the ordinary course of business; provided, however, that
such Indebtedness is extinguished within three (3) Business Days of incurrence;
and
(k) Indebtedness represented by Capitalized
Lease obligations and Purchase Money Indebtedness of the Borrower and its
Subsidiaries incurred in the ordinary course of business (including refinancings
thereof that do not result in an increase in the aggregate principal amount of
Indebtedness of such Person as of the date of such proposed refinancing (plus
the amount of any premium required to be paid under the terms of the instrument
governing such Indebtedness and plus the amount of reasonable expenses incurred
by the Borrower in connection with such refinancing)) not to exceed $5,000,000
at any time outstanding.
"Permitted Investments" means the following:
(a) Investments by the Borrower or any
Guarantor in any Person that is a Guarantor or Immaterial Subsidiary, provided
all of the requirements for an Immaterial Subsididary have otherwise been
satisifed;
(b) Investments in the Borrower by any of
its Subsidiaries; provided that any Indebtedness evidencing such Investment is
unsecured and subordinated, pursuant to a written agreement, to the Borrower's
Credit Obligations;
(c) Investments in cash and Cash
Equivalents; and
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(d) loans and advances, including advances
for travel and moving expenses, to employees, officers and directors of the
Borrower and its Subsidiaries in the ordinary course of business for bona fide
business purposes not in excess of $250,000 at any one time outstanding.
"Permitted Liens" means:
(a) Liens for taxes, assessments or
governmental charges or claims either (i) not delinquent or (ii) contested in
good faith by appropriate proceedings and as to which the Borrower or its
Subsidiaries shall have set aside on its books such reserves as may be required
pursuant to GAAP;
(b) statutory Liens of landlords and Liens
of carriers, warehousemen, mechanics, suppliers, materialmen, repairmen and
other Liens imposed by law or pursuant to customary reservations or retentions
of title incurred in the ordinary course of business for sums not yet delinquent
or being contested in good faith, if such reserve or other appropriate
provision, if any, as shall be required by GAAP shall have been made in respect
thereof;
(c) Liens incurred or deposits made in the
ordinary course of business in connection with workers' compensation,
unemployment insurance and other types of social security, including any Lien
securing letters of credit issued in the ordinary course of business consistent
with past practice in connection therewith, or to secure the performance of
tenders, statutory obligations, surety and appeal bonds, bids, leases,
government contracts, performance and return-of-money bonds and other similar
obligations (exclusive of obligations for the payment of borrowed money);
(d) any judgment Lien (i) in an amount which
together with all other judgment Liens is less than $750,000, or (ii) which (A)
has been in force for less than the applicable appeal period or (B) in respect
of which the Borrower or any Subsidiary shall at the time in good faith be
prosecuting an appeal or proceedings for review and, in the case of each of
clauses (A) and (B), the Borrower or such Subsidiary shall have taken
appropriate reserves therefor in accordance with GAAP and execution of such
judgment or award shall not be levied.
(e) easements, rights-of-way, zoning
restrictions and other similar charges or encumbrances in respect of real
property not interfering in any material respect with the ordinary conduct of
the business of the Borrower or any of its Subsidiaries;
(f) any interest or title of a lessor under
any Capitalized Lease obligation permitted pursuant to clause (j) of the
definition of "Permitted Indebtedness;" provided that such Liens do not extend
to any property or assets which is not leased property subject to such
Capitalized Lease obligation;
(g) Liens securing Purchase Money
Indebtedness permitted pursuant to clause (j) of the definition of "Permitted
Indebtedness;" provided, however, that (i) the Indebtedness shall not exceed the
cost of the property or assets acquired, together, in the case
-29-
of real property, with the cost of the construction thereof and improvements
thereto, and shall not be secured by a Lien on any property or assets of the
Borrower or any Subsidiary of the Borrower other than such property or assets so
acquired or constructed and improvements thereto and (ii) the Lien securing such
Indebtedness shall be created within one hundred eighty (180) days of such
acquisition or construction or, in the case of a refinancing of any Purchase
Money Indebtedness, within one hundred eighty (180) days of such refinancing;
(h) Liens encumbering deposits made to
secure obligations arising from statutory, regulatory, contractual, or warranty
requirements of the Borrower or any of its Subsidiaries, including rights of
offset and set-off;
(i) Liens securing the Senior Second Secured
Notes and all other monetary obligations under the Senior Second Secured Notes
Indenture and the related Guarantee Obligations thereunder so long as such Lien
does not include the Sinking Fund Collateral Account or the proceeds thereof and
is subject to the Intercreditor Agreement which is in full force and effect; and
(j) Liens secured by the Bond.
"Permitted Net Income Distribution Annual Allowance"
means except as otherwise noted in this defintion below, if Adjusted EBITDA is
greater than $21,000,000 as of the end of the twelve (12) month period ending as
of each September 30th, an annual allowance equal to the lesser of: (a) 50% of
the Net Income for the Borrower's and its Subsidiaries' (prepared on a
consolidated basis) for such period, or (b) (i) 62.5% of the Net Income of the
Borrower and its Subsidiaries (prepared on a consolidated basis) for such
period, minus (ii) the Permitted Tax Distribution Annual Allowance for the same
calendar year which contains the September 30th calculation of Permitted Net
Income Distribution Annual Allowance. If, however, Adjusted EBITDA for the
Borrower and its Subsidiaries (prepared on a consolidated basis) as of the end
of any twelve (12) month period ending on September 30th is less than or equal
to $21,000,000, the Permitted Net Income Distribution Annual Allowance for the
Borrower and its Subsidiaries will be zero. Notwithstanding the foregoing, (x)
the first calculation period to determine the amount of such Permitted Net
Income Distribution Annual Allowance shall be the nine (9) month period
commencing on January 1, 2004 and ending on September 30, 2004, rather than the
twelve (12) month period ending on September 30, 2004 (provided that the twelve
(12) month period ended September 30, 2004 shall be used to determine whether
the $21,000,000.00 Adjusted EBITDA threshold has been met), and (y) the
Permitted Net Income Distribution Annual Allowance for any given year cannot be
calculated unless and until the Borrower and Guarantors, have, on a consolidated
basis, calculated their Permitted Tax Distribution Annual Allowance.
"Permitted Tax Distribution Annual Allowance" except as
otherwise noted in this definition below, means, with respect to any taxable
year ending December 31st, the sum of: (i) the product of: (1) the difference,
if any, of (A) all items of taxable income or gain (other than capital gain)
allocated by the Borrower or its Susbsidiaires to its Equity Holders for such
year, minus (B) the sum of all items of taxable deduction or loss (but not
including any capital loss) allocated to such Equity Holders by the Borrower or
its Subsdiaries for such year
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and any Tax Loss Amount (other than a Tax Loss Amount attributable to capital
losses), and (2) the Applicable Income Tax Rate, plus (ii) the product of: (1)
the Net Capital Gain (including, for this purpose, any Tax Loss Amount
attributable to Net Long-Term Capital Loss), if any, allocated by the Borrower
or its Susbsidiaries to its Equity Holders for such year and (2) the Applicable
Capital Gain Tax Rate, plus (c) the product of: (1) the Net Short-Term Capital
Gain (including for this purpose any Tax Loss Amount attributable to short-term
capital loss), if any, allocated by the Borrower or its Subsdiaries to its
Equity Holders for such year, and (2) the Applicable Income Tax Rate. The amount
of the Permitted Tax Distribution Annual Allowance shall be computed promptly
after the filing by the Borrower of its annual income tax return and after the
deliveries required pursuant to Section 8.7(b) have been made. Notwithstanding
the foregoing, the first calculation period shall be the twelve (12) month
period commencing on January 1, 2004 and ending on December 31, 2004. An
estimated Permitted Tax Distribution Annual Allowance may be utilized until a
final Permitted Tax Distribution Annual Allowance can be calculated. Once a
final determination of the Permitted Tax Distribution Annual Allowance has been
made, all necessary adjustments will be made to Available Non-Extraordinary
Distributions. Additionally, after calculating the actual Permitted Tax
Distribution Annual Allowance, the last Excess Cash Flow Payment made shall be
adjusted and if it is determined that the last Excess Cash Flow Payment was in
an amount that is less than the required adjusted Excess Cash Flow Payment, such
shortage shall be paid to the Agent within five (5) Business Days.
"Person" means an individual, partnership, corporation,
business trust, stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
"Plan" means at a particular time, any employee benefit
plan which is by ERISA and in respect of which the Borrower is (or, if such plan
were terminated time, would under Section 4069 of ERISA be deemed to be) an
"employer" as define Section 3(5) of ERISA.
"Preferred Stock" of any Person means any Capital Stock
of such Person that has preferential rights to any other Capital Stock of such
Person with respect to dividends or redemptions or upon liquidation.
"Pricing Grid Leverage Ratio" means as to any Person, as
of the date of determination, the ratio of (a) such Person's Adjusted Funded
Indebtedness as of such date, over (b) such Person's EBITDA for the previous
four (4) Fiscal Quarters ended as of such date.
"Prime Rate" means, for any day, the rate of interest in
effect for such day as publicly announced from time to time by the Agent as its
prime rate (whether or not such rate is actually charged by the Agent), which is
not intended to be the Agent's lowest or most favorable rate of interest at any
one time. Any change in the Prime Rate announced by the Agent shall take effect
at the opening of business on the day specified in the public announcement of
such change; provided that the Agent shall not be obligated to give notice of
any change in the Prime Rate.
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"Project" means the Facility, the Leased Premises, and
all easements, leasehold interests, licenses, permits, contract rights and other
real and personal property interests now owned or hereafter acquired by the
Borrower or any of its Subsidiaries or in which the Borrower or which any of its
Subsidiaries has any rights.
"Projected Distributions" means an amount that is
identified as such in the Compliance Certificate last delivered to Agent for the
Fiscal Quarter ending September 30th, December 31st or March 31st pursuant to
Section 8.8(c) as the amount which Borrower's Board of Directors anticipates
declaring and distributing to the Borrower's members with respect to their
membership interest (other than Permitted Extraordinary Distributions) during
the period between such September 30th and April 30th of the following year,
provided that (a) such amount may not exceed the amount of the Available
Non-Extraordinary Distributions and (b) such amount (i) shall be reduced in each
Compliance Certificate delivered for the Fiscal Quarters ending December 31st
and March 31st by the amount of actual distributions paid by Borrower as of but
delivered after the immediately preceding September 30th (other than Permitted
Extraordinary Distributions) and (ii) may, at Borrower's election, be reduced or
increased (but in no event shall the Projected Distributions plus the amount of
all actual distributions paid by the Borrower to its members for such period,
exceed the amount reported in the Compliance Certificate delivered for the
Fiscal Quarter ended as of September 30th) in any subsequent Compliance
Certificate from the amount reported in the Compliance Certificate delivered to
Agent for the previous Fiscal Quarter. Borrower acknowledges that the Projected
Distributions reported in the Compliance Certificate delivered for the Fiscal
Quarter ended as of September 30th may not under any circumstances be increased
from the amount reported in such certificate, as subsequently reduced by actual
distributions, or otherwise at Borrower's election.
"Projections" means the Initial Projections and the last
Annual Operating Budget delivered to the Agent by the Borrower.
"Purchase Money Indebtedness" means any Indebtedness
which is secured with a purchase money first priority Lien.
"Qualified Capital Stock" means Capital Stock other than
Disqualified Capital Stock.
"Related Parties" means, with respect to any Person, any
(a) spouse or lineal descendent (whether natural or adopted) of such Person or
(b) trust, corporation, partnership or other entity, the beneficiaries,
stockholders, partners, owners or persons beneficially holding an 80% or more
controlling interest of which consist of such Person and/or any of the persons
referred to in the immediately preceding clause (a).
"Regulation U" means Regulation U of the Board of
Governors of the Federal Reserve System as in effect from time to time.
"Regulations" means the temporary and final regulations
under the Code and any successor provisions thereto.
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"Reimbursement Obligations" means the Standby L/C
Reimbursement Obligations and the Surety L/C Reimbursement Obligations.
"Reorganization" means, 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" means any of the events set forth in
Section 4043(b) of ERISA, other than those events as to which the thirty (30)
day notice period is waived under Sections .13, .14, .16, .18, .19, or .20 of
PBGC Reg. 2615.
"Required Lenders" means, at any time, Lenders holding
fifty-one percent (51%) of the Total Revolving Credit Commitment and Total Term
Loan Commitment.
"Requirements of Law" means, as to any Person, the
certificate of incorporation and by-laws, partnership agreement, certificate of
formation, articles of organization or limited liability company operating
agreement or other organizational or governing documents of such Person, and any
Applicable Law.
"Responsible Officer" of a Person, means in the case of
a Person which is a limited liability company, the chairman, chief executive
officer, president, or any vice chairman of such Person, or with respect to
financial matters, the chief financial officer or chief accounting officer of
such Person and in the case of any Person which is a corporation, the chairman,
any vice chairman, chief executive officer, president or any vice president of
such Person or with respect to financial matters, the chief financial officer of
such Person.
"Restricted Payment" means with respect to any Person
the following:
(a) the declaration or payment of any
dividend or the making of any distribution (other than dividends or
distributions payable in Qualified Capital Stock of the Person and dividends and
distributions payable to the Person or another Subsidiary of the Person) on or
in respect of shares of Capital Stock of the Person or its Subsidiaries to
holders of such Capital Stock;
(b) the purchase, redemption or other type
of acquisition or retirement for value of any Capital Stock of the Person or any
of its Subsidiaries, other than any such Capital Stock held by the Person or any
of its Subsidiaries;
(c) the payment of or on, purchase,
defeasement, redemption, prepayment, decrease or other type of acquisition or
retirement for value, prior to any scheduled final maturity, scheduled repayment
or scheduled sinking fund payment, of any Indebtedness of the Borrower or any
Subsidiary that is subordinate or junior in right of payment to the Credit
Obligations;
(d) the payment of any of or on, purchase,
defeasement, redemption, prepayment, decrease or other type of acquisition or
retirement for value (including
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upon the occurrence of a Change of Control), prior to the scheduled final
maturity or scheduled repayment, of the Senior Second Secured Notes; or
(e) the making of any Investment (other than
Permitted Investments).
"Revolving Borrowing" means any Revolving Loans made at
the same time and as to which a single Interest Period is in effect.
"Revolving Commitment Period" means the period from and
including the Closing Date to but excluding the Revolving Credit Termination
Date.
"Revolving Credit Availability" means, as of any date,
(a) the lesser of (i) the Total Revolving Credit Commitment or (ii) the
Borrowing Base then in effect, each minus (b) the aggregate principal amount of
all outstanding Revolving Loans and the Total Standby L/C Exposure.
"Revolving Credit Commitment" means, with respect to
each Lender, the commitment of such Lender to make Revolving Loans pursuant to
Section 2.1(a) and to participate in Standby L/Cs pursuant to Section 3.1(a) in
an aggregate principal and/or Stated Amount not to exceed the amount set forth
opposite such Lender's name on Schedule 3 (collectively, as to all Lenders, the
"Total Revolving Credit Commitment"). The original Total Revolving Credit
Commitment is $30,000,000.
"Revolving Credit Commitment Percentage" means, as to
any Lender, at any time, the percentage that such Lender's Revolving Credit
Commitment then constitutes of the Total Revolving Credit Commitment.
"Revolving Credit Maturity Date" means the date which is
the fifth (5th) anniversary of the Closing Date. Such Revolving Credit Maturity
Date may be extended at the Borrower's request with the approval of the Agent or
all of the Required Lenders as outlined in Section 2.8 below.
"Revolving Credit Termination Date" means the Revolving
Credit Maturity Date or such earlier date of termination of each of the
Revolving Credit Commitments pursuant to Section 2.7 or Section 10.
"Revolving Loan Notes" means the promissory notes of the
Borrower, delivered pursuant to Section 2.2 which shall be substantially in the
form of Exhibit H, as the same may be amended, modified or restated from time to
time.
"Revolving Loans" means any loans made to the Borrower
pursuant to Section 2.
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"Salt Depot Agreements" means the agreements between
Borrower and third parties pursuant to which Borrower or a Subsidiary stores
inventory of the Borrower or the Subsidiary.
"Securities Act" means the Securities Act of 1933, or
any similar federal statute, and the rules and regulations of the Securities and
Exchange Commission promulgated thereunder, all as the same shall be in effect
at the time.
"Security Agreement" means the Security Agreement
executed on the Closing Date by the Borrower in favor of the Collateral Agent,
for the ratable benefit of the Lenders, in the form of Exhibit I.
"Senior Second Secured Notes" means the 9.5% Senior
Second Secured Notes due 2014 to be issued on the Closing Date pursuant to the
Senior Second Secured Notes Indenture in the original principal amount of
$100,000,000.
"Senior Second Secured Note Documents" means all
documents, agreements and instruments evidencing or relating to the Senior
Second Secured Notes, including the Senior Second Secured Notes Indenture and
the Senior Second Secured Notes.
"Senior Second Secured Notes Indenture" means the
Indenture dated as of March 17, 2004 among the Borrower, as issuer, the
guarantors party thereto and U.S. Bank National Association, in its capacity a
trustee and collateral agent under the Indenture, pursuant to which the Senior
Second Secured Notes shall be issued, together with all instruments and other
agreements entered into by the Borrower or such Subsidiaries in connection
therewith, as the same may be amended, supplemented or otherwise modified from
time to time in accordance with Section 9.19 of this Agreement.
"Senior Second Secured Obligations" means the unpaid
principal and interest on the Senior Second Secured Notes and all other
obligations and liabilities of the Borrower and/or its Subsidiaries, whether
direct or indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred, which may arise under, or in connection with,
under the Senior Second Secured Note Documents, whether on account of principal,
interest, reimbursement obligations, fees, indemnities, costs, expenses or
otherwise.
"Senior Security Documents" means, collectively, the
Intercreditor Agreement, the Security Agreement, the Limited Liability Company
Pledge Agreement, the Sinking Fund Collateral Account Agreement, the Mortgages,
each Subsidiary Guaranty and each Subsidiary Security Agreement and all other
documents and instruments, now existing or hereafter arising, which create or
purport to create and xxxxx x Xxxx to the Agent, the Collateral Agent and the
Lenders in property to secure payment or performance of the Credit Obligations.
"Single Employer Plan" means any Plan which is covered
by Title IV of ERISA, but which is not a Multiemployer Plan.
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"Sinking Fund Collateral Account" means the account
established with the Collateral Agent pursuant to the Sinking Fund Collateral
Account Agreement into which all Sinking Fund Payments must be deposited.
"Sinking Fund Collateral Account Agreement" means the
Sinking Fund Collateral Account and Pledge Agreement made by Borrower in favor
of the Collateral Agent in substantially the form of Exhibit J, as amended,
modified or supplemented from time to time, pursuant to which the Sinking Fund
Collateral Account shall be created and a security interest granted therein in
favor of the Collateral Agent for the ratable benefit of the Lenders.
"Sinking Fund Collateral Account Value" means, as of any
date, the amount of immediately available cash that would be realized by the
Agent if it liquidated and sold all securities and investments in the Sinking
Fund Collateral Account on such date as determined by the Agent in its
reasonable judgment.
"Sinking Fund Payments" means collectively any payments
to be made into the Sinking Fund Collateral Account, as required pursuant to the
Credit Documents.
"Sinking Fund Permitted Investments" means (a)
securities issued or directly and fully guaranteed or insured by the United
States Government or any agency or instrumentality thereof having maturities of
not more that six months from the date of acquisition, (b) certificates of
deposit with maturities of six months or less from the date of acquisition,
bankers' acceptances with maturities not exceeding six months and overnight bank
deposits, in each case, with the Agent, and (c) repurchase obligations with a
term of not more than seven (7) days for underlying securities of the types
described in clause (a) above entered into with the Agent or Collateral Agent.
"Solvent" means at a point in time, that the fair
salable value of the assets of a Person, on a going concern basis, is greater
than the total amount of liabilities (including contingent, subordinated,
unmatured and unliquidated liabilities) of the Person; the fair salable value of
the assets of the Person, on a going concern basis, is not less than the amount
that will be required to pay its probable liabilities (including contingent,
subordinated, unmatured and unliquidated liabilities) as they become absolute
and matured; the Person is not engaged in a business or a transaction, and is
not about to be engaged in a business or a transaction, for which its properties
would constitute an unreasonably small capital; and the Person does not intend
to, and does not believe that it will, incur debts or liabilities (including
contingent, subordinated, unmatured and unliquidated liabilities) beyond its
ability to pay as such debts and liabilities mature in the ordinary course of
business. For purposes of the foregoing, the amount of contingent liabilities
are to be computed as the amount that, in light of all the facts and
circumstances existing at that point in time, can reasonably be expected to
become an actual or matured liability.
"Standby L/C" means the irrevocable standby letters of
credit in the form of Exhibit K (as may be modified in accordance with Section
3.1 of this Agreement) issued by the Standby L/C Issuer.
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"Standby L/C Exposure" means with respect to any Lender
at any time and without duplication, such Lender's Revolving Credit Commitment
Percentage of the sum of (a) the aggregate Stated Amount of all Standby L/Cs
outstanding at any such time and (b) the aggregate amount of all unpaid Standby
L/C Reimbursement Obigations at any such time (with the aggregate amount of all
Standby L/Cs outstanding at any such time plus the aggregate amount of all
unpaid Standby L/C Reimbursement Obligations being referred to collectively as
the "Total Standby L/C Exposure")
"Standby L/C Issuer" means M&T as the issuer of the
Standby L/Cs pursuant to Section 3.2(a).
"Stated Amount" means, with respect to any Letter of
Credit, the stated or face amount available at the time for drawing (subject to
presentment of all requested documents), regardless of whether any conditions to
such drawing could then be met. For purposes of calculating the Stated Amount of
any Letter of Credit at any time any reduction in the Stated Amount of any
Letter of Credit by reason of any amendment to any Letter of Credit shall be
deemed effective under this Agreement as of the later of (x) the date that the
issuer of such Letter of Credit actually issues an amendment purporting to
reduce the Stated Amount of such Letter of Credit, whether or not the amendment
provides that the reduction be given effect as of an earlier date, or (y) the
date the issuer of such Letter of Credit receives the written consent of the
Letter of Credit beneficiary or beneficiaries to such reduction, whether written
consent must be dated on or after the date of the amendment issued by the issuer
of such Letter of Credit purporting to effect such reduction.
"Subsidiary" means, as to any Person, a corporation of
which shares of stock having ordinary voting power (other than stock having such
power only by reason of the happening of a contingency) to elect a majority of
the board of directors or other managers of such corporation are at the time
owned, or the management of which is otherwise controlled, directly or
indirectly through one or more intermediaries, or both, by such Person, or a
limited partnership of which such Person or any of its Subsidiaries is a general
partner or a business trust in which such Person holds a majority interest
(comparable to that for a corporation as described above).
"Subsidiary Guaranty" means any guaranty delivered by a
Subsidiary to the Agent for the benefit of the Lenders. The term "Subsidiary
Guarantee" means collectively each and every Subsidiary Guaranty.
"Subsidiary Security Agreement" means any security
agreement delivered by a Subsidiary to the Agent for the benefit of the Lenders.
The term "Subsidiary Security Agreements" means collectively each and every
Subsidiary Security Agreement.
"Surety L/C" means an Irrevocable Direct Pay Letter of
Credit in the form of Exhibit L issued by the Surety L/C Issuer for the account
of the Bonding Company to secure the obligations of the Borrower to repay all
amounts paid by the Bonding Company to F-K under the Bond.
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"Surety L/C Exposure" means, at any time, such Lender's
Term Loan Commitment Percentage of the sum of (a) the Stated Amount of the
Surety L/C so long as it is outstanding and (b) the aggregate amount of the
unpaid Surety L/C Reimbursement Obligations (with the Stated Amount of the
Surety L/C plus the aggregate amount of all unpaid Surety L/C Reimbursement
Obligations being referred to collectively as the "Total Surety L/C Exposure").
"Surety L/C Issuer" means M&T as the issuer of the
Surety L/C pursuant to Section 3.2(a).
"Synthetic Lease Obligations" means an arrangement
treated as an operating lease for financial accounting purposes and a financing
lease for tax purposes.
"Tax Loss Amount" means with respect to any taxable
year, the amount which would be available to the Borrower as a net operating
loss or net capital loss from a prior taxable year of the Borrower ending
subsequent to the Closing Date if the Borrower were taxable as a corporation and
not as a Flow Through Entity; provided, that for such purpose the amount of any
such net operating loss or net capital loss shall be used only once to reduce
Permitted Tax Distribution Annual Allowance and in each case shall be carried
forward to the next succeeding taxable year until so used. For purposes of
calculating the Tax Loss Amount, the proportionate part of the items of taxable
income, gain, deduction, or loss (including capital gain or loss) of any
Subsidiary that is a Flow Through Entity for a taxable year of such Subsidiary
ending subsequent to the Closing Date shall be included in determining the
amount of net operating loss or net capital loss of the Borrower.
"Term Loans" means a Loan that is made pursuant to
Section 4.1.
"Term Loan Availability" means, as of any date, (a)
$32,140,113.50, minus (b) without duplication (i) the aggregate amount of: (1)
all Term Loan Scheduled Amortization Payments made from the Closing Date through
and including such date, and (2) all mandatory prepayments made under Section 5
(except those payments made in accordance with Section 5.2(c)), (3) all
voluntary and mandatory prepayments under Section 5.2(c) which will be used as a
credit for future Term Loan Scheduled Amortization Payments, whether the
payments described in (1), (2) and (3) above are to be applied to repayment of
Term Loans, Surety L/C Reimbursement Obligations or to be deposited in the
Sinking Fund Collateral Account, (ii) the outstanding principal amount of all
Term Loans previously made by the Lenders to the Borrower, and (iii) the Stated
Amount of the Surety L/C as of such date. If the result of such calculation is
zero or negative, then there shall be no Term Loan Availability as of such date.
"Term Loan Borrowing" means any Term Loans made on the
same date.
"Term Loan Commitment" means, as to any Lender, its
commitment to make a Term Loan pursuant to Section 4.1 and to participate in the
Surety L/C pursuant to Section 3.2(a) in an aggregate principal amount not to
exceed the amount set forth opposite such Lender's name in Schedule 3 under the
heading "Term Loan Commitment" (all such commitments being referred to
collectively as the "Total Term Loan Commitment"). The Total Term Loan
Commitment of $32,140,113.50 shall be reduced from time to time and at any
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time:(i) on a dollar for dollar basis, for each unrestricted dollar released by
the Agent and/or the Collateral Agent to the Borrower from the Sinking Fund
Collateral Account per Section 3.2(e)(iv) below, and (ii) and by the portion (if
any) of the payments made under the terms of this Agreement (including the Term
Loan Scheduled Amortization Payments and all mandatory and voluntary
prepayments) which are applied by the Agent to reduce the amounts due in
connection with any outstanding Term Loans due under the terms of this
Agreement.
"Term Loan Commitment Percentage" means, as to any
Lender at any time, the percentage that such Lender's Term Loan Commitment then
constitutes of the Total Term Loan Commitment.
"Term Loan Facility" means the facility described in
Section 4 of this Agreement.
"Term Loan Scheduled Amortization Payment" means the
payment required to be made on the last day of each Fiscal Quarter commencing on
June 30, 2004 and continuing on the last day of each Fiscal Quarter thereafter
as set forth on the amortization schedule in Exhibit M attached hereto with such
payment to be a payment of Term Loan principal to the extent of the unpaid
principal amount of any outstanding Term Loans, with the remaining balance of
the payment amount (if any) to be deposited into the Sinking Fund Collateral
Account until the Term Loan Termination Date.
"Term Loan Termination Date" means the Term Loan
Maturity Date or such earlier date of termination of the Total Term Loan
Commitments pursuant to Section 10.
"Term Loan Maturity Date" means the date that is the
eighth (8th) anniversary of the Closing Date.
"Term Loan Notes" means the promissory notes of the
Borrower, delivered pursuant to Section 4.2 which shall be substantially in the
form of Exhibit N, as the same may be amended from time to time.
"Title Company" means any title insurance company
approved by the Agent to insure the priority of the Lien of the Mortgages.
"Title Insurance Policy" means the policy of title
insurance received by the Lenders pursuant to Section 7.1(z).
"Transfer" means, as a noun, any voluntary or
involuntary transfer, sale, pledge, hypothecation, encumbrance or other
disposition and, as a verb, voluntarily or involuntarily to transfer, sell,
pledge, hypothecate, encumber or otherwise dispose of.
"Uniform Commercial Code" and "UCC" means the Uniform
Commercial Code as in effect from time to time in any applicable jurisdiction.
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"Union Contract" means the labor agreement, dated as of
October 30, 1998, between the Borrower and the Oil, Chemical & Atomic Workers
International Union ("OCAW") covering matters related to the Project.
"Unused Commitment Fee Rate" means the Applicable Margin
then in effect with respect to the column entitled "Unused Commitment Fee Rate"
in the pricing grid contained in the definition of Applicable Margin.
"Voting Stock" means, with respect to any Person,
securities of any class or classes of Capital Stock of such Person entitling the
holders thereof (whether at all times or only so long as no senior class of
stock has voting power by reason of any contingency) to vote in the election of
members of the Board of Directors (or equivalent governing body) of such Person.
"Working Capital Assets" means the Borrower's and
Gurantors' accounts receivable and inventory and the future proceeds and
products thereof in existence as of the date of any release in accordance with
Section 2.8 below.
"Working Capital" means, as of any date of
determination, the Current Assets less Adjusted Current Liabilities.
"Working Day" means any Business Day on which dealings
in foreign currency and exchange between banks may be carried on in London,
England.
(b) Additional capitalized terms used herein and not otherwise
defined in Section 1.1(a) shall have the meanings given thereto in the Sections
of this Agreement set opposite such term as follows:
TERM SECTION
---- -------
Affected Lender Section 5.6
Annual Operating Budget Section 8.8(d)
Commitment Transfer Supplement Section 12.7(b)(ii)
Compliance Certificate Section 8.8(c)
Environmental Consultant Section 8.15(d)
Environmental Program Section 8.15(d)
Excess Cash Flow Payments Section 5.2(c)
Fair Value Basis Balance Sheet Section 6.8(e)
Group Definition of Change in Control
Indemnified Liabilities Section 12.6
Indemnitee/Indemnitees Section 8.15(e)
Information Section 12.15
Initial Projections Section 6.8(d)
Intellectual Property Section 6.24
L/C Participation Obligation Section 5.12(b)
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Level Definition of Applicable Margin
Material Adverse Change Section 6.8(b)
Non Advancing Lender Section 5.12(b)
Other Consultants Section 8.5(b)
Participations Section 12.7(c)
Permitted Assignee Section 12.7(b)(i)
Prior Agents Section 7.1(x)
Prior Credit Documents Section 7.1(x)
Pro Forma Balance Sheet Section 6.8(c)
Register Section 12.7(b)
Standby L/C Fee Section 3.1(e)
Standby L/C Participant Section 3.1(f)
Standby L/C Reimbursement Obligations Section 3.1(d)
Substitute LIBOR Rate Section 5.6
Surety L/C Fee Section 3.2(c)
Surety L/C Participant Section 3.2(d)
Surety L/C Reimbursement Obligations Section 3.2(b)
Taxes Section 5.11(a)
Transferees Section 12.7(c)
Total Revolving Credit Commitment Definition of Revolving Credit
Commitment
Total Standby L/C Exposure Definition of Standby L/C Exposure
Total Surety L/C Exposure Definition of Surety L/C Exposure
Total Term Loan Commitment Definition of Term Loan Commitment
Trustee Definition of Intercreditor
Agreement
Unused Commitment Fee Section 5.1(b)
1.2 Other Defined Terms; Rules of Interpretation.
(a) All terms defined in this Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto, unless otherwise expressly provided therein.
(b) As used herein and in any certificate or other document made
or delivered pursuant hereto, accounting terms not defined herein and accounting
terms partly defined herein to the extent not defined, shall have the respective
meanings given to them under GAAP.
(c) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement,. The words
"include," "includes" and "including" shall
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be deemed to be followed by the phrase "without limitation." Unless the context
in which used herein otherwise clearly requires, "or" has the inclusive meaning
represented by the phrase "and/or."
(d) Terms defined in this Agreement by reference to any other
agreement, document or instrument shall have the meanings assigned to them in
such agreement, document or instrument, whether or not such agreement, document
or instrument is then in effect.
(e) All terms defined in the UCC and not otherwise defined
herein have the meanings assigned to them in the UCC.
(f) References to Articles, Sections, subsections, Exhibits,
Schedules and the like, are to Articles, Sections, subsections of, or Exhibits
or Schedules attached to, this Agreement (as amended from time to time) unless
otherwise expressly provided.
(g) Defined terms include in the singular number the plural and
in the plural number the singular.
(h) Reference to any law, rule, regulation, order, decree,
requirement, policy, guideline, directive or interpretation means as amended,
modified, codified, replaced or reenacted, in whole or in part, and in effect on
the determination date, including rules and regulations promulgated thereunder.
(i) All references herein to the Lenders or any of them shall be
deemed to include the Letter of Credit Issuer unless specifically provided
otherwise or the context otherwise requires.
SECTION 2
REVOLVING CREDIT FACILITY.
2.1 Total Revolving Credit Commitment.
(a) Subject to the terms and conditions set forth herein, each
Lender agrees, severally and not jointly, to make, from time to time after the
date hereof until the Revolving Credit Termination Date, Revolving Loans to the
Borrower in an aggregate principal amount not to exceed its Revolving Credit
Commitment Percentage of the Revolving Credit Availability. If at any time the
aggregate outstanding amount of the Revolving Loans and the Total Standby L/C
Exposure exceeds the lesser of (i) the Total Revolving Credit Commitment and
(ii) the Borrowing Base then in effect, the Borrower shall immediately repay the
Revolving Loans to the extent of such excess amount. The Borrower shall not
permit the aggregate unpaid principal balance of outstanding Revolving Loans to
exceed $3,000,000 during the Annual Clean-Up Period. No more than five (5)
Revolving Borrowings shall be outstanding at any given time. Within the
foregoing limits and subject to the terms and conditions set forth herein, the
Borrower may borrow, repay and reborrow Revolving Loans.
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(b) The Borrower shall deliver a Borrowing Base Certificate to
the Agent and each Lender sufficiently in advance of the Closing Date to
permit the Agent to determine the Borrowing Base to be in effect on the Closing
Date and, thereafter, shall deliver Borrowing Base Certificates to the Agent and
each Lender at least once a month but no more frequently than on a weekly basis.
Promptly following its receipt of each such Borrowing Base Certificate, the
Agent shall determine or, as the case may be, redetermine the Borrowing Base in
its reasonable discretion and shall notify the Borrower and each Lender of the
Borrowing Base so determined or redetermined. Each Borrowing Base so determined
or redetermined by the Agent shall remain in effect until notice of a
redetermined Borrowing Base shall have been given by the Agent in accordance
with the provisions of this Section 2.1.
2.2 Revolving Loan Notes. The Revolving Loans made by each Lender
pursuant to Section 2.1 shall be evidenced by a Revolving Loan Note executed by
the Borrower. The Revolving Loan Notes shall have appropriate insertions and be
payable to the order of such Lender. Each Revolving Loan Note shall (a) be dated
the Closing Date, (b) represent the obligation of the Borrower to pay the amount
of such Lender's Revolving Credit Commitment, (c) be stated to mature on the
Revolving Credit Maturity Date, (d) provide for the payment of principal and
interest in accordance with Section 5.3, and (e) be entitled to the benefits of
this Agreement and the Senior Security Documents. Each Lender is hereby
authorized to record the date and amount of each Revolving Loan made by such
Lender, the date and amount of each payment or repayment of principal of the
Revolving Loans made by the Borrower, on the schedules annexed to and
constituting a part of the Revolving Loan Notes held by such Lender, and any
such recordation shall constitute prima facie evidence of the accuracy of the
information so recorded; provided, that the failure by any Lender to make any
such recordation shall not limit or otherwise affect the Credit Obligations of
the Borrower.
2.3 Procedure for Borrowing and Payment of Revolving Loans. Whenever the
Borrower desires the Lenders to make a Revolving Loan pursuant to Section 2.1,
the Borrower shall notify in writing by the delivery of a Notice of Revolving
Loan Borrowing by hand, telecopy or by electronic correspondence (with any
electronic correspondence to be sent to the appropriate address as specified by
the Agent from time to time) to the Agent of such request by not later than
11:00 a.m., Rochester, New York time, three (3) Business Days before the date of
the proposed Revolving Borrowing. Each such Notice of Revolving Loan Borrowing
shall be irrevocable. Each Notice of Revolving Loan Borrowing shall specify the
following information:
(a) the aggregate amount of the requested Revolving Borrowing;
(b) the Borrowing Date of such Revolving Borrowing which shall
only be on a Wednesday of every week so long as it is considered a Business Day
and the Borrower is open for business that day. If any Wednesday is not
considered a Business Day (or Working Day, for any portion of the Revolving
Borrowing that is to be a LIBOR Loan), or the Borrower is not open for business
that day, the applicable Borrowing Date in that week shall be the last Business
Day (or Working Day, for any portion of the Revolving Borrowing that is to be a
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LIBOR Loan) immediately preceding such Wednesday that both the Borrower and the
Agent are open for business;
(c) whether such requested Revolving Borrowing is to be a LIBOR
Loan, a Base Rate Loan or a combination thereof and, if a combination thereof,
the amount allocable to each; and
(d) the requested Interest Period to be applicable to each LIBOR
Loan. The Borrowing Date shall be a Working Day if the requested Revolving
Borrowing is to be a LIBOR Loan (or a combination of LIBOR Loans and Base Rate
Loans) and a Business Day if the Revolving Borrowing is to be a Base Rate Loan.
Promptly following receipt of a Notice of Revolving Loan Borrowing in accordance
with this Section 2.3, the Agent shall advise each Lender of the details thereof
and of the amount of such Lender's Revolving Loan to be made as part of the
requested Revolving Borrowing.
(e) with the exception of any payments required on the Revolving
Credit Maturity Date or Revolving Credit Termination Date and any other
mandatory prepayments outlined pursuant to the terms of this Agreement, all
voluntary repayments of principal on Revolving Loans shall be made on a
Wednesday of every week so long as it is considered a Business Day and the
Borrower is open for business that day. If (i) any Wednesday is not considered a
Business Day, or (ii) the Borrower is not open for business that day, the
applicable payment date in that week shall be the last Business Day immediately
preceding such Wednesday that both the Borrower and the Agent are open for
business. If the applicable Interest Period for any applicable LIBOR Loan does
not end on a Wednesday, the applicable payment date in that week shall be the
last day of the applicable Interest Period or if such date is not a Working Day
the immediately preceding Working Day.
2.4 Disbursement of Revolving Loans. Subject to the terms and conditions
herein, each Lender will make an amount equal to its Revolving Credit Commitment
Percentage multiplied by the requested Revolving Borrowing available to the
Agent in immediately available funds prior to 11:00 a.m. Rochester, New York
Time, on the Borrowing Date set forth in the Notice of Revolving Loan Borrowing.
Requested Revolving Borrowings which are made available by the Agent shall be
deposited into the Funding Account by wire transfer or other appropriate method,
not later than 1:00 p.m. Rochester, New York Time on the requested Borrowing
Date.
2.5 Revolving Loans and Revolving Borrowings.
(a) Each Revolving Loan shall be made as part of a Revolving
Borrowing consisting of Revolving Loans made by the Lenders ratably in
accordance with their respective Revolving Credit Commitment Percentages. The
failure of any Lender to make any Revolving Loan required to be made by it shall
not relieve any other Lender of its obligations hereunder; provided that no
Lender shall be responsible for any other Lender's failure to make a Revolving
Loan as required hereby.
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(b) Each Revolving Borrowing shall be comprised of either Base
Rate Loans or, to the extent permitted or required by the terms hereof, LIBOR
Loans, as selected by Borrower and set forth in the Notice of Revolving Loan
Borrowing with respect to which the Revolving Loan is made. Each Lender at its
option may make any Loan by causing any domestic or foreign branch or Affiliate
of such Lender to make such Loan; provided 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 Revolving Borrowing that is a LIBOR Loan shall be in an
integral multiple of $100,000 and not less than $2,000,000. Each Revolving
Borrowing that is a Base Rate Loan shall be in an aggregate amount that is an
integral multiple of $10,000 and not less than $500,000. Notwithstanding the
foregoing, a Revolving Borrowing may be less than the required amount, but in
such case must be in an aggregate amount that is equal to the Revolving Credit
Availability.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request, or to elect to convert or continue,
any Revolving Borrowing if the Interest Period requested with respect thereto
would end after the Revolving Credit Maturity Date.
2.6 Use of Proceeds. Borrower may use proceeds of Revolving Loans
for working capital and general corporate purposes.
2.7 Termination and Reduction of Total Revolving Credit Commitment.
(a) Unless previously terminated, each Revolving Credit
Commitment shall terminate on the Revolving Credit Termination Date.
(b) The Borrower may at any time terminate, or from time to time
reduce, the Total Revolving Credit Commitment; in accordance with Section
5.2(e). The Borrower shall notify the Agent of any election to terminate or
reduce the Total Revolving Credit Commitment under Section 5.2(e) at least five
(5) Business Days prior to the effective date of such termination or reduction,
specifying such election and the effective date thereof. Promptly following
receipt of any notice, the Agent shall advise the Lenders of the contents
thereof. Each notice delivered by the Borrower pursuant to this Section 2.7(b)
shall be irrevocable. Any termination or reduction of the Total Revolving Credit
Commitment shall be permanent. Each reduction of the Total Revolving Credit
Commitment shall be made ratably among the Lenders in accordance with their
respective Revolving Credit Commitments.
2.8 Release of Certain Collateral and Procedure for the Possible
Extension of the Revolving Credit Commitment.
Provided: (a) no Default or Event of Default has occurred and is
continuing, and all Credit obligations have not been accelerated (b) the
Revolving Credit Maturity Date has not been extended by either the Agent or all
Lenders beyond the fifth (5th) anniversary of the Closing Date, with any such
notice of any intent to extend the Revolving Credit Maturity Date
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beyond the fifth (5th) anniversary of the Closing Date to be irrevocable and
provided no less than six (6) months prior to the Revolving Credit Maturity
Date, which irrevocable notice shall, among other things, (i) commit to the
extension of the Revolving Credit Maturity Date for a period of not less than
three (3) years, and (ii) commit to the extension of the Revolving Credit
Commitments on comparable terms to the existing Revolving Credit Commitments
(including an extension fee of fifty (50) basis points), and (c) the Borrower
replaces the Total Revolving Credit Commitment with another revolving credit
facility provided by another lender or another group of lenders as of the
Revolving Credit Maturity Date, or within ninety (90) days thereafter, the
Collateral Agent shall release from its Collateral the Working Capital Assets,
provided that immediately prior to the release: (i) the Total Revolving Credit
Commitment shall have been terminated and the Revolving Loans and all accrued
interest thereon and related fees have been paid in full, and (ii) all Standby
L/Cs and any contingent obligations related thereto have been terminated.
Notwithstanding anything to the contrary contained herein, if the appropriate
irrevocable notice described in this paragraph is delivered to the Borrower,
then the Borrower shall not have the option to replace the existing Total
Revolving Credit Commitment with another credit facility, and no Collateral
(including but not limited to the Working Capital Assets) shall be released.
Furthermore, should the Borrower elect to prepay in full the Total Revolving
Credit Commitment prior to the Revolving Credit Maturity Date, no Collateral
(including but not limited to the Working Capital Assets) shall be released
unless and until the Total Term Loan Commitment and Total Revolving Credit
Commitment are irrevocably paid in full and terminated, and all Letters of
Credit issued pursuant to the terms of this Agreement and terminated in
accordance with the terms of this Agreement.
If any Lender decides not to participate in any proposed extension (each
called a "Rejecting Lender"), then the Agent shall demand that such Rejecting
Lender, and upon such demand such Rejecting Lender shall be obligated to, assign
its Revolving Credit Commitment to Agent, or at the direction of the Agent, to a
Permitted Assignee subject to and in accordance with the provisions of Section
12.7 for a purchase price equal to the aggregate principal balance of the
Rejecting Lender's Revolving Credit Commitment, plus any accrued but unpaid
interest thereon and accrued but unpaid fees owing to such Rejecting Lender, any
such assignment to be effective as of the current Revolving Credit Maturity Date
(without taking account of the requested extension).
SECTION 3
LETTERS OF CREDIT.
3.1 Standby L/C Facility.
(a) Commitment. Subject to and upon the terms and conditions set
forth herein, the Standby L/C Issuer agrees at any time on or after the date
hereof and prior to the Revolving Credit Termination Date to execute and deliver
stand-by letters of credit (each a "Standby L/C" and, collectively, the "Standby
L/Cs") for the account of the Borrower to secure the payment or performance of
the Borrower's obligations and other company requirements of the Borrower,
provided, that at any time, the Total Standby L/C Exposure shall in no event
exceed $7,000,000.00. In addition, the sum of the Total Standby L/C Exposure
plus the
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aggregate amount of the outstanding Revolving Loans shall not at any time, or
from time to time, exceed the lesser of: (i) the Total Revolving Credit
Commitment, or (ii) the Borrowing Base. The Standby L/C Issuer's commitment to
issue Standby L/Cs shall terminate on the Revolving Credit Termination Date.
(b) Standby L/Cs. The Standby L/Cs issued pursuant to this
Section 3.1 shall (i) expire on a date certain, no later than the Revolving
Credit Maturity Date, (ii) be denominated in Dollars, (iii) provide for the
payment of a sight draft when presented for honor thereunder in accordance with
the terms thereof and (iv) be in such form requested by the Borrower and
reasonably acceptable to the Standby L/C Issuer. Each Standby L/C shall be
governed by the laws of the State of New York and issued in accordance with the
Uniform Customs and Practices for Documentary Credits of the International
Chamber of Commerce (Publication 500).
(c) Procedure for Issuing Standby L/C. Prior to the proposed
issuance of a Standby L/C pursuant to this Section 3.1, the Borrower shall
provide to the Standby L/C Issuer and the Agent a written request and a form of
Standby L/C therefore. Such request shall set forth the proposed issuance date
of such Standby L/C (which shall be a Business Day) and the Stated Amount of
such Standby L/C. The Borrower shall also provide the other certificates,
documents and papers and information as the Standby L/C Issuer may reasonably
request. Upon such receipt, the Standby L/C Issuer will process such form of
Standby L/C and the other certificates, documents and other papers delivered to
the Standby L/C Issuer in connection therewith and in accordance with its
customary procedures and, subject to the terms and conditions hereof, shall
promptly issue such Standby L/C (but in no event shall the Standby L/C Issuer be
required to issue any Standby L/C earlier than three (3) Business Days after
receipt by the Standby L/C Issuer of the request relating thereto) by issuing
the original of such Standby L/C to the beneficiary identified to the Standby
L/C Issuer in the Borrower's request to the Standby L/C Issuer and furnishing a
copy thereof to the Borrower.
(d) Reimbursements and Other Payments by the Borrower. The
Borrower agrees to: (i) pay immediately to the Agent for the account of the
Standby L/C Issuer the aggregate amount of any drawing under any Standby L/C
made by the beneficiary of such Standby L/C on any Drawing Date and, at the
election of the Borrower, any such amount may be paid on such date by the
proceeds of Revolving Loans, and (ii) discharge all obligations with respect to
any amount available to be drawn under the Standby L/Cs on the Revolving Credit
Maturity Date (collectively referred to herein as the "Standby L/C Reimbursement
Obligations"). The Borrower's obligations in respect of any amount available to
be drawn under the Standby L/Cs on the Revolving Credit Maturity Date may be so
discharged only by (i) paying or prepaying any amount due or to become due by
the Borrower to the beneficiaries under the Standby L/Cs, (ii) if the Standby
L/C Issuer so agrees, providing the Standby L/C Issuer with cash collateral,
pursuant to documentation in form and substance satisfactory to the Standby L/C
Issuer, in an amount equal to the aggregate Stated Amount of the Standby L/Cs or
(iii) causing the termination of the Standby L/Cs in a manner satisfactory to
the Standby L/C Issuer.
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(e) Standby L/C Fees. For each Standby L/C issued in accordance
with the terms of this Agreement, the Borrower shall be obligated to pay
quarterly in arrears a Standby L/C Fee (the "Standby L/C Fee") to the Standby
L/C Issuer for its account and the account of the Standby L/C Participants equal
to the L/C Fee Rate multiplied by the Stated Amount of the applicable Standby
L/C, all of which shall be multiplied by the number of days outstanding in such
Fiscal Quarter and divided by three hundred sixty (360), payable commencing on
the last Business Day of the Fiscal Quarter during which the applicable Standby
L/C is issued and continuing on the last Business Day of each Fiscal Quarter
thereafter for each Fiscal Quarter in which a Standby L/C was outstanding. In
addition and for each Standby L/C issued pursuant to the terms of this
Agreement, the Borrower agrees to pay quarterly in arrears to the Standby
L/C Issuer for its account only, a per annum fronting fee equal to 0.125% of
the Stated Amount of each Standby L/C issued, , payment commencing on the last
Business Day of the Fiscal Quarter during which the Standby L/C is issued and
continuing on the last Business Day of each Fiscal Quarter thereafter for each
Fiscal Quarter in which a Standby L/C was outstanding.
(f) Standby L/C Participations.
(i) The Standby L/C Issuer irrevocably agrees to
grant and hereby grants to each Lender that participates in the issuance of any
Standby L/C as indicated on Schedule 3 (each a "Standby L/C Participant"), and,
to induce the Standby L/C Issuer to issue the Standby L/Cs hereunder, each
Standby L/C Participant irrevocably agrees to accept and purchase and hereby
accepts and purchases from the Standby L/C Issuer, on the terms and conditions
hereinafter stated, for such Standby L/C Participant's own account risk, an
undivided interest in the Standby L/Cs equal to such Standby L/C Participant's
Revolving Credit Commitment Percentage in the Standby L/C Issuer's obligations
and rights under each Standby L/C issued hereunder and the amount of each draft
paid by the Standby L/C Issuer thereunder. Each Standby L/C Participant
unconditionally and irrevocably agrees with the Standby L/C Issuer that, if a
draft is paid under any Standby L/C for which the Standby L/C Issuer is not
reimbursed in full by the Borrower in accordance with the terms of this
Agreement, such Standby L/C Participant shall pay to the Standby L/C Issuer upon
demand to the Standby L/C Issuer's address for notices specified herein an
amount equal to such Standby L/C Participant's Revolving Credit Commitment
Percentage of the amount of such draft, or part thereof, which is not so
reimbursed.
(ii) If any amount required to be paid by any Standby
L/C Participant to the Standby L/C Issuer pursuant to Section 3.1(f)(i) in
respect of any unreimbursed portion of any payment made by the Standby L/C
Issuer under any Standby L/C is paid to the Standby L/C Issuer within three (3)
Business Days after the date such payment is due, such Standby L/C Participant
shall, together with such payment, pay an amount equal to (A) the product of (1)
such amount, times (2) the daily average Federal Funds Rate, as quoted by the
Standby L/C Issuer, during the period from and including the date such payment
is required to but including the date on which such payment is immediately
available to the Standby L/C Issuer, multiplied by (B) a fraction the numerator
of which is the number of days that elapse during such period the denominator of
which is 360. If any such amount required to be paid by any Standby L/C
Participant pursuant to Section 3.1(f)(i) is not in fact made available to the
Standby L/C Issuer by such Standby L/C Participant within three (3) Business
Days after the date such payment is due,
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the Standby L/C Issuer shall be entitled to recover from such Standby L/C
Participant, on demand, an amount equal to (A) the product of (1) such amount,
times (2) the maximum per annum Base Rate applicable to Revolving Loans
hereunder, plus two percent (2%) multiplied by (B) a fraction the numerator of
which is the number of days that elapse during such period and the denominator
of which is 360.
(iii) A certificate of the Standby L/C Issuer
submitted to any Standby L/C Participant with respect to any amounts owing under
this section shall be conclusive in the absence of manifest error.
(iv) Whenever, at any time after the Standby L/C
Issuer has made payment under any Standby L/C and has received from any Standby
L/C Participant the payment required of it in accordance with Section 3.1(f)(i),
the Standby L/C Issuer receives any payment related to such Standby L/C (whether
directly from the Borrower or otherwise, including proceeds of Collateral
applied thereto), or any payment of interest on account thereof, the Standby L/C
Issuer will distribute to such Standby L/C Participant its pro rata share
thereof; provided, however, that in the event that any such payment received by
the Standby L/C Issuer shall be required to be returned by the Standby L/C
Issuer, then such Standby L/C Participant shall return to the Standby L/C Issuer
the portion thereof previously distributed by Standby L/C Issuer to it.
3.2 Surety L/C Facility.
(a) Closing Date Commitment/Surety L/C. Subject to and upon the
terms and conditions set forth herein, the Surety L/C Issuer shall on the
Closing Date issue the Surety L/C to the Bonding Company and for the account of
the Borrower. The Surety L/C is subject to the following terms and conditions
and all other terms and conditions of this Agreement concerning the Borrower's
obligations with respect to the Surety L/C. Notwithstanding anything herein to
the contrary, any reference herein to the termination of the Surety L/C shall be
the termination thereof with the consent of the Bonding Company as the sole
beneficiary thereof pursuant to a written instrument satisfactory to Agent which
shall include a complete, full and unconditional release of the Surety L/C
Issuer and all parties designated by Agent from any and all claims, liabilities
or obligations of any kind to the Bonding Company or any related parties.
The Surety L/C shall: (i) expire on a date certain, no later than the
Term Loan Maturity Date, (ii) be denominated in Dollars, and (iii) be issued in
a form acceptable to both the Bonding Company and the Surety L/C Issuer. The
Surety L/C shall be governed by the laws of the State of New York and issued in
accordance with the Uniform Customs and Practices for Documentary Credits of the
International Chamber of Commerce (Publication 500).
(b) Reimbursement Obligation.
(i) The Borrower agrees to pay on or before the
third (3rd) Business Day after the Drawing Date of the Surety L/C for the
account of the Surety L/C Issuer and the Surety L/C Participants the aggregate
amount of any drawing made under the Surety L/C
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(collectively referred to herein as the "Surety L/C Reimbursement Obligations").
Such amount may be funded with the proceeds of a Term Loan to the extent
available under Section 4. The lack of availability of a Term Loan hereunder
shall not in any way affect the Borrower's absolute and unconditional obligation
to repay in full the Surety L/C Reimbursement Obligation, all accrued interest
thereon and other amounts owed in connection therewith. If, at the time a
drawing is made under the Surety L/C, a Default or Event of Default exists, then
the Borrower shall pay to the Surety L/C Issuer immediately and unconditionally,
the Surety L/C Reimbursement Obligations together with all accrued interest
thereon and all amounts owed in connection therewith.
(ii) The Surety L/C Reimbursement Obligation shall
accrue interest at the per annum Base Rate applicable to Term Loans hereunder,
plus two percent (2%) until paid in full. If the Surety L/C Obligations are not
paid when due, then they shall accrued interest at the Default Rate.
(c) Surety L/C Fees. The Borrower shall pay to the Agent for the
account of the Lenders a fee (the "Surety L/C Fee") in respect of Surety L/C for
the period commencing on the issuance thereof and ending on the last date on
which it is fully drawn upon or terminated. The Surety L/C Fee shall be payable
in arrears on the last Business Day of each Fiscal Quarter and shall equal (i)
the sum of: (A) the L/C Fee Rate in effect on the date such payment is due
multiplied by the difference between: (1) the average daily Stated Amount of the
Surety L/C during Fiscal Quarter during which the payment is made and (2) the
average Sinking Fund Collateral Account Value calculated as of the last day of
each month during such period; plus (B) 1.5% per annum multiplied by the average
of the Sinking Fund Collateral Account Value calculated as of the last day of
each month during such period , (ii) all of which shall be multiplied by the
number of days in such Fiscal Quarter and divided by three hundred sixty (360).
In addition, the Borrower agrees to pay to the Surety L/C Issuer for its account
only, a per annum fronting fee equal to 0.125% of the Stated Amount of the
Surety L/C, payable quarterly in arrears, payment commencing on the last
Business Day of the Fiscal Quarter during which the Surety L/C is issued and
continuing on the last Business Day of each Fiscal Quarter in which the Surety
L/C was outstanding. Payment of the Surety L/C Fee and fronting fee shall
commence on March 31, 2004.
(d) Surety L/C Participations.
(i) The Surety L/C Issuer irrevocably agrees to
grant and hereby grants to each Lender that participates in the issuance of the
Surety L/C as indicated on Schedule 3 (each a "Surety L/C Participant"), and, to
induce the Surety L/C Issuer to issue the Surety L/C hereunder, each Surety L/C
Participant irrevocably agrees to accept and purchase and hereby accepts and
purchases from the Surety L/C Issuer, on the terms and conditions hereinafter
stated, for such Surety L/C Participant's own account and risk, an undivided
interest in the Surety L/C equal to such Surety L/C Participant's Term Loan
Commitment Percentage in the Surety L/C Issuer's obligations and rights under
the issued Surety L/C and the amount of the draft paid by the Surety L/C Issuer
thereunder. Each Surety L/C Participant unconditionally and irrevocably agrees
with the Surety L/C Issuer that, if a draft is paid under the Surety L/C for
which the Surety L/C Issuer is not reimbursed in full by the Borrower in
accordance with the terms of this
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Agreement, such Surety L/C Participant shall pay to the Surety L/C Issuer upon
demand to the Surety L/C Issuer's address for notices specified herein an amount
equal to such Surety L/C Participant's Term Loan Commitment Percentage of the
amount of such draft, or part thereof, which is not so reimbursed.
(ii) If any amount required to be paid by any Surety
L/C Participant to the Surety L/C Issuer pursuant to Section 3.2(d)(i) in
respect of any unreimbursed portion of any payment made by the Surety L/C Issuer
under any Surety L/C is paid to the Surety L/C Issuer within three (3) Business
Days after the date such payment is due, such Surety L/C Participant shall,
together with such payment, pay to the Surety L/C Issuer an amount equal to (A)
the product of (1) such reimbursed amount, times (2) the daily average Federal
Funds Rate, as quoted by the Surety L/C Issuer, during the period from and
including the date such payment is required to but including the date on which
such payment is immediately available to the Surety L/C Issuer, multiplied by
(B) a fraction the numerator of which is the number of days that elapse during
such period the denominator of which is 360. If any such amount required to be
paid by any Surety L/C Participant pursuant to Section 3.2(d)(i) is not in fact
made available to the Surety L/C Issuer by such Surety L/C Participant within
three (3) Business Days after the date such payment is due, the Surety L/C
Issuer shall be entitled to recover from such Surety L/C Participant, on demand,
an amount equal to (A) the product of (1) such amount, times (2) the maximum per
annum Base Rate applicable to Term Loans hereunder, plus two percent (2%),
multiplied by (B) a fraction the numerator of which is the number of days that
elapse during such period and the denominator of which is 360.
(iii) A certificate of the Surety L/C Issuer submitted
to any Surety L/C Participant with respect to any amounts owing under this
Section 3.2 shall be conclusive in the absence of manifest error.
(iv) Whenever, at any time after the Surety L/C
Issuer has made payment under the Surety L/C and has received from any Surety
L/C Participant the payment required of it in accordance with Section 3.2(d)(i),
the Surety L/C Issuer receives any payment related to such Surety L/C (whether
directly from the Borrower or otherwise, including proceeds of collateral
applied thereto), or any payment of interest on account thereof, the Surety L/C
Issuer will distribute to such Surety L/C Participant its pro rata share thereof
based upon the payments made to the Surety L/C Issuer and the Surety L/C
Participant's Term Loan Commitment Percentage of such payment; provided,
however, that in the event that any such payment received by the Surety L/C
Issuer shall be required to be returned by the Surety L/C Issuer, then such
Surety L/C Participant shall return to the Surety L/C Issuer the portion thereof
previously distributed by Surety L/C Issuer to it.
(e) Sinking Fund Collateral Account.
(i) On the Closing Date, the Borrower will establish
and maintain with the Collateral Agent the Sinking Fund Collateral Account in
the name of "American Rock Salt Surety L/C Sinking Fund Collateral Account". The
Sinking Fund Collateral Account shall be subject to the sole dominion and
control of the Collateral Agent, except for the direction of the investment
thereof as provided below. Neither the Borrower nor any Person claiming by,
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through or under or on behalf of the Borrower shall have any right to withdraw
anything from the Sinking Fund Collateral Account, including any accrued
interest. Any interest accruing on the amounts on deposit in the Sinking Fund
Collateral Account shall be deemed to be voluntary prepayments of Term Loan
Scheduled Amortization Payments and applied annually as of the end of each
Fiscal Year commencing with the Fiscal Year ended September 30, 2004.
On the Closing Date, the Borrower and the Collateral Agent shall
execute and deliver the Sinking Fund Collateral Account Agreement which shall,
among other things, provide for the establishment of such account, the grant to
the Collateral Agent for the ratable benefit of the Lenders a first priority
security interest in the account and the proceeds thereof, the investment
options and procedures of the monies held in the Sinking Fund Collateral Account
and the circumstances when the funds shall be released and to whom they shall be
released. In addition, at the Closing and at any time thereafter upon request of
the Collateral Agent, the Borrower shall take such other actions as may be
necessary to grant and perfect such first priority security interest in favor of
the Collateral Agent and the Lenders.
The Agent is authorized, upon receipt of funds from the Sinking
Fund Collateral Account, to apply such funds to the payment of any Surety L/C
Reimbursement Obligations, all accrued interest thereon and any other amounts
owed in connection therewith when and if owed hereunder.
(ii) Commencing on June 30, 2004, and continuing on
the last Business Day of each Fiscal Quarter thereafter, the Borrower shall
remit to the Agent for deposit in the Sinking Fund Collateral Account the
required portion of the Term Loan Scheduled Amortization Payment due on such day
(with required portion meaning the portion of the Term Loan Scheduled
Amortization Payment that has not been prepaid). In addition, on the Term Loan
Termination Date, the Borrower shall deposit into the Sinking Fund Collateral
Account in immediately available funds an amount equal to the difference between
the Stated Amount of the Surety L/C and the Sinking Fund Collateral Account
Value. On any date thereafter upon demand by the Agent or the Collateral Agent,
the Borrower shall deposit into the Sinking Fund Collateral Account the
difference between the Stated Amount of the Surety L/C and the Sinking Fund
Collateral Account Value on such date. If the Borrower fails to make any
required deposit into the Sinking Fund Collateral Account at any time, the
Borrower shall pay to the Surety L/C Issuer for its account and the account of
the Surety L/C Participants an additional fee equal to the Default Rate.
(iii) Upon the termination or expiration of the Surety
L/C or any drawing on the Surety L/C, the Agent is authorized to and shall,
without further action by the Borrower, advance a Term Loan in accordance with
the terms of Section 4 below and apply the proceeds of such Term Loan towards
the repayment in full of the Surety L/C Reimbursement Obligations, all accrued
interest thereon and other amounts owed in connection therewith. Upon the
termination or expiration of the Surety L/C as contemplated under the terms of
this Section 3.2(e)(iii), no Notice of Term Loan Borrowing will be required in
accordance with the terms of Section 4.3 below.
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(iv) If upon the expiration of the Surety L/C
pursuant to its terms or the termination of the Surety L/C or reduction of the
Surety L/C by the Bonding Company, the Surety L/C Reimbursement Obligations, the
accrued interest thereon and all other amounts owed in connection therewith have
been paid in full, and provided no Default or Event of Default has occurred and
is continuing, then the Borrower may instruct and receive from the Collateral
Agent any remaining monies in the Sinking Fund Collateral Account, as more
specifically provided in the Sinking Fund Collateral Account Agreement and
below. Notwithstanding anything to the contrary contained herein or in the
Senior Security Documents, in no event shall the amount released from the
Sinking Fund Collateral Account exceed the reduction of the Stated Amount of the
Surety L/C. Furthermore, in no event shall: (i) the aggregate amounts released
from time to time or at any time from the Sinking Fund Collateral Account to the
Borrower, plus (ii) the aggregate original amount of all Term Loans, exceed
$32,140,113.50.
3.3 Provisions Applicable to all Letters of Credit.
(a) Obligations Absolute. The obligations of the Borrower in
respect of all Letters of Credit issued under this Agreement shall be absolute,
unconditional and irrevocable, and shall be paid strictly in accordance with the
terms of this Agreement, under all circumstances whatsoever, including, without
limitation, the following circumstances:
(i) any lack of validity or enforceability of any
Letter of Credit or any agreement or instrument related thereto;
(ii) any amendment or waiver of or any consent to
departure from the terms of any Letter of Credit, provided, that any such
amendment shall have been effectuated in accordance with Section 12.1;
(iii) the existence of any claim, set-off, defense or
other rights which the Borrower may have at any time against any beneficiary or
any transferee of any Letter of Credit (or any Persons for whom any such
beneficiary or any such transferee may be acting), the Letter of Credit Issuer,
the Agent, or any other Person, whether in connection with such Letter of
Credit, this Agreement, any other Credit Document or any agreement or instrument
related thereto, the transactions contemplated herein, or any unrelated
transaction;
(iv) any statement or any other document presented
under any 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 whatsoever;
(v) payment by the Letter of Credit Issuer under any
Letter of Credit issued by it against presentation of a draft or certificate
that does not comply with the terms of such Letter of Credit; and
(vi) any other circumstances or happening whatsoever,
whether or not similar to any of the foregoing, provided that the Letter of
Credit Issuer acted in good faith and used due care in the examination of any
draft or certificate presented under any Letter of Credit
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in ascertaining whether on its face it appeared to comply with the terms of such
Letter of Credit.
(b) Indemnification. The Borrower hereby indemnifies and holds
harmless the Letter of Credit Issuer from and against any and all claims,
damages, losses, liabilities, reasonable costs and expenses whatsoever which the
Letter of Credit Issuer may incur (or which may be claimed against the Letter of
Credit Issuer by any Person) by reason of or in connection with the execution
and delivery or transfer of, or payment or failure to pay under, any Letter of
Credit; provided, that the Borrower shall not be required to indemnify the
Letter of Credit Issuer for any claims, damages, losses, liabilities, costs or
expenses to the extent, but only to the extent, caused by the failure of the
Letter of Credit Issuer to act in good faith or to use due care in the
examination of any draft or certificate presented under any Letter of Credit in
ascertaining whether on its face it appeared to comply with the terms of such
Letter of Credit. Nothing in this Section 3.3(b) is intended to limit the
reimbursement obligations of the Borrower contained herein.
(c) Liability of the Letter of Credit Issuer. The Borrower
assumes all risks of the acts or omissions of the beneficiary and any transferee
of any Letter of Credit with respect to its use of such Letter of Credit. The
Agent, Collateral Agent and the Letter of Credit Issuer (or any of their
respective officers or directors) shall not be liable or responsible for: (i)
the use which may be made of any Letter of Credit or for any acts or omissions
of the beneficiary and any transferee in connection therewith; (ii) the
validity, sufficiency or genuineness of documents, or of any endorsements
thereon, even if such documents should in fact prove to be in any or all
respects invalid, insufficient, fraudulent or forged; (iii) payment by the
Letter of Credit Issuer against presentation of documents which do not comply
with the terms of any Letter of Credit, including failure of any documents to
bear any reference or adequate reference to such Letter of Credit; or (iv) any
other circumstances whatsoever in making or failing to make payment under any
Letter of Credit, except only that the Borrower shall have a claim against the
Letter of Credit Issuer, and the Letter of Credit Issuer shall be liable to the
Borrower, to the extent, but only to the extent, of any direct, as opposed to
consequential, damages suffered by the Borrower which the Borrower proves were
caused by the failure of the Letter of Credit Issuer to act in good faith or to
use due care in the examination of any draft or certificate presented under any
Letter of Credit in ascertaining whether on its face it appeared to comply with
the terms of such Letter of Credit. In furtherance and not in limitation of the
foregoing, the Letter of Credit Issuer may accept documents that appear on their
face to be in order, without responsibility for further investigation.
SECTION 4.
TERM LOAN FACILITY
4.1 Term Loan Commitment. If the initial Stated Amount of the Surety L/C
is reduced, the Surety L/C is terminated, and/or a draw against the Surety L/C
is made at any time, then subject to and upon the terms and conditions set forth
herein, from and after the date hereof until the Term Loan Termination Date, the
Borrower may borrow from the Lenders and each Lender severally agrees to make to
the Borrower, Term Loans in an aggregate principal amount not to exceed the
Total Term Loan Commitment, with each Lender making Term Loans equal to
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the Term Loan Availability amount multiplied by the Lender's Term Loan
Commitment Percentage. Notwithstanding anything herein to the contrary, the
Lenders shall not be obligated to make Term Loans at any time the Term Loan
Availability is zero or less. In addition, with each increase to the Term Loan
Availability (which increases will in no event exceed $32,140,115.50), the
Borrower shall, within five (5) Business Days of each increase, request Term
Loans in accordance with Section 4.3 below. Should Borrower fail to request Term
Loans within the period described in the preceding sentence, or if the Lenders
do not advance Term Loans after their receipt of a Notice of Term Loan
Borrowing.for a period of up to 90 days because the conditions to making Term
Loans have not been satisfied or waived by Agent or Lenders, the Total Term Loan
Commitment shall, subject to the terms of Section 5.2(d) below, be reduced by
the amount of the applicable increase. Moreover, should the Borrower fail to
request Term Loans in an amount equal to the total amount of the applicable
increase in Term Loan Availability, the Total Term Loan Commitment shall, as of
the sixth (6th) Business Day after the applicable increase and subject to the
terms of Section 5.2(d) below, be reduced by the difference between the total
amount of the applicable increase and the aggregate amount of the applicable
Term Loans requested by the Borrower. The Term Loans shall be Base Rate Loans
and, to the extent permitted or required by the terms hereof, LIBOR Loans, as
selected by the Borrower.
4.2 Term Loan Note(s). The Term Loans made by each Lender pursuant to
Section 4.1 shall be evidenced by a single Term Loan Note executed by the
Borrower. The Term Loan Note of each Lender shall have appropriate insertions
and be payable to the order of such Lender. Each Term Loan Note shall (i) be
dated the date that the first Term Loan is made, (ii) represent the obligation
of the Borrower to pay the amount of such Lender's Term Loan Commitment
allocated to the Term Loans made by the Lenders, (iii) be stated to mature on
the Term Loan Maturity Date, (iv) provide for the payment of principal and
interest in accordance with Section 5.3, and (v) be entitled to the benefits of
this Agreement and the Senior Security Documents. Once a payment is made on a
Term Loan it may not be reborrowed. Each Lender is hereby authorized to record
the date and amount of each payment or prepayment of principal of the Term Loans
made by the Borrower, on the schedules annexed to and constituting a part of the
Term Loan Note held by such Lender, and any such recordation shall constitute
prima facie evidence of the accuracy of the information so recorded; provided,
that the failure by any Lender to make any such recordation shall not limit or
otherwise affect the Credit Obligations of the Borrower.
4.3 Procedure for Borrowing with Respect to Term Loans.
(a) Except as otherwise described in Section 3.2(e)(iii) above,
whenever the Borrower desires the Lenders to make Term Loans pursuant to Section
4.1, the Borrower shall give the Agent an irrevocable Notice of Term Loan
Borrowing in substantially the form of Exhibit G to be received by the Agent
prior to 11:00 a.m., Rochester, New York Time, (a) at least three (3) Business
Days prior to the requested Borrowing Date specifying (i) the amount to be
borrowed, (ii) the requested Borrowing Date, (iii) an acknowledgment that the
proceeds of the requested Term Loans shall be paid to the Surety L/C Issuer and
the Surety L/C Participants to the extent necessary to pay the Surety L/C
Reimbursement Obligations, the accrued interest thereon and all amounts owed in
connection therewith and appropriate transfer instructions for
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the remainder thereof (if any) to be used in accordance with Section 4.5 below,
(iv) whether the Term Loan is to be a LIBOR Loan, a Base Rate Loan or a
combination thereof and, if a combination thereof, the amount allocable to each,
and (v) the requested Interest Period to be applicable to each LIBOR Loan.
(b) The Borrowing Date for each Term Loan shall be a Working Day
if the requested Term Loan is to be a LIBOR Loan (or a combination of LIBOR
Loans and Base Rate Loans) and a Business Day if the Term Loan is to be a Base
Rate Loan. The Term Loan shall be in the minimum amount of $500,000 and integral
multiples of $10,000 in excess of or, if the remaining Term Loan Availability is
less than $500,000, in an aggregate amount equal to the remaining Term Loan
Availability.
4.4 Disbursement of Term Loans. Upon receipt of a Notice of Term
Loan Borrowing, the Agent shall promptly notify the Lenders. Each Lender shall
make the amount of its pro rata share of the requested Term Loan available to
Agent in immediately available funds prior to 11:00 a.m. Rochester, New York
Time, on the Borrowing Date requested by the Borrower or, subject to the
conditions described in Section 4.1 up to ninety (90) days thereafter. The
proceeds of requested Term Loan Borrowings which are made available by the Agent
shall be made available first to the Surety L/C Issuer in an amount sufficient
to reimburse the Surety L/C Issuer and the Surety L/C Participants for the
Surety L/C Reimbursement Obligations and the remaining balance of such proceeds
shall be deposited into the Funding Account not later than 1:00 p.m. Rochester,
New York Time on the requested Borrowing Date in immediately available funds.
4.5 Use of Proceeds.
(a) Repayment of Surety L/C Reimbursement Obligations. The
proceeds of all Term Loans shall be first used to pay in full the Surety L/C
Issuer and the Surety L/C Participants all Surety L/C Reimbursement Obligations,
the accrued interest thereon or other amounts owed in connection therewith then
due and owing them.
(b) Other Permitted Uses. After the payment, in full, to the
Surety L/C Issuer and the Surety L/C Participants of all Surety L/C
Reimbursement Obligations, together with the accrued interest thereon and all
other amounts owed in connection therewith, any remaining proceeds from the
Terms Loans may be used by Borrower for general corporate purposes, including
repayment of indebtedness and as a Permitted Extraordinary Distribution to the
extent otherwise permitted herein as specified in the Notice of Term Loan
Borrowing.
4.6 Termination of Term Loans. Each Term Loan Commitment shall
terminate on the Term Loan Termination Date.
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SECTION 5
PROVISIONS RELATING TO ALL
EXTENSIONS OF CREDIT FEES AND PAYMENTS
5.1 Upfront Commitment Fees; Revolving Credit Fee; and Unused
Commitment Fee.
(a) Agent's Upfront Fee. On the Closing Date, Borrower shall pay
to the Agent, for its own account and not for the account of anyone else, the
remaining unpaid upfront fees agreed in the Fee Letter to be paid to the Agent
on or before the Closing Date by Borrower. Such upfront fees are fully earned on
the date paid.
(b) Revolving Credit Commitment Fee. The Borrower shall pay to
the Agent for the account of the Lenders a commitment fee (the "Unused
Commitment Fee") in respect of the Revolving Loans and Total Standby L/C
Exposure for the period commencing on the Closing Date and ending on the
Revolving Credit Termination Date equal to the Unused Commitment Fee Rate in
effect on the date such payment is due multiplied by the difference between (i)
the Total Revolving Credit Commitment and (ii) the average daily balance of the
Revolving Loans and the Total Standby L/C Exposure during the fixed quarter
ending on the date such payment is due., provided that such fees shall not be
payable to any particular Lender or Lenders (as the case may be), during any
period in which any such Lender or Lenders, in violation of its/their
obligations under this Agreement, fails to make any Revolving Loan or to issue
and/or participate in the issuance of any Standby L/C. The Unused Commitment Fee
shall be payable in arrears on the last Business Day of each Fiscal Quarter.
(c) Annual Administrative Fee. The Borrower shall pay to the
Agent for its own account, and not for the account of any other Lenders the
annual administrative fee described in the Fee Letter, on the terms, in the
amount and at the times set forth therein.
5.2 Prepayments and Repayments.
(a) (i) Immediately upon receipt by the Borrower or any of its
Subsidiaries (or any third party for any of their benefit) the Borrower shall
deliver any and all proceeds (net of reasonable fees and expenses incurred in
connection therewith) derived from the issuance by the Borrower or any of its
Subsidiaries of Indebtedness after the Closing Date, excluding any Indebtedness
represented by the Senior Second Secured Notes, any Capital Leases. or any
Purchase Money Indebtedness
(ii) Immediately upon receipt by the Borrower or any
of its Subsidiaries (or any their party for any of their benefit), the Borrower
shall deliver to the Agent 75% of the proceeds (net of reasonable fees and
expenses incurred in connection therewith) from any Equity Offering after the
Closing Date.
(iii) Provided no Event of Default has occurred and is
continuing, upon the consummation of any Assets Sales in excess of $100,000, the
Borrower shall, within sixty (60) days provide to the Agent a plan for the use
of proceeds which plan shall be acceptable to
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the Agent in its reasonable opinion. Thereafter, within one hundred eighty (180)
days from the consummation of any such Assets Sales, Borrower shall execute on
the plan or obtain a purchase order for the acquisition, repurchase,
substitution or replacement of assets in the ordinary course of business if such
substitute or replacement assets automatically would become part of the
Collateral without further action of the Borrower or any Lender upon the
acquisition thereof by the Borrower, provided, however, the purchase order shall
in all events be paid utilizing the proceeds of the Asset Sale. If the Borrower
does not repurchase or acquire the replacement or substitute assets, then the
proceeds of the Asset Sale shall be delivered to the Agent and applied in
accordance with the provisions of Section 5.2(a)(v) below. In addition, any
excess proceeds from the Asset Sale after the acquisition of any replacement or
substitution Assets (net of reasonable fees and expenses) shall be paid and
delivered to the Agent within sixty (60) days or Borrower shall provide to the
Agent a plan for the use of proceeds. Thereafter, within one hundred eighty
(180) days from the consummation of any such Assets Sales, Borrower shall
execute on the plan or obtain a purchase order for the acquisition, repurchase,
subsitution or replacement of assets in the ordinary course of business if such
substitute or replacement assets automatically would become part of the
Collateral without further action of the Borrower or any Lender upon the
acquisition thereof by the Borrower, provided, however, the purchase order shall
in all events be paid utilizing the proceeds of the Asset Sale. If a Default or
an Event of Default has occurred and is continuing, the Borrower shall
immediately pay to the Agent all proceeds of the Asset Sale (net of reasonable
fees and expenses).
(iv) Promptly and in any event not more than three
(3) days following the receipt by the Agent or the Borrower or any subsidiary of
the Borrower of any net proceeds (or, if there shall be continuing an Event of
Default, of the full amount of net proceeds) of any business interruption
insurance required to be maintained pursuant to Section 8.4(a)(ii) hereof on
account of any business interruption event, the applicable party receiving such
proceeds shall notify the other of such receipt in writing, by facsimile or by
telephone (promptly confirmed by written or facsimile notice), and not later
than one Business Day following receipt by the the Borrower or any Subsidiary of
the Borrower of any such proceeds, such proceeds shall be remitted first to the
Agent for application to all payments and fees due hereunder during this period
of the business interruption event before they are applied to any other purpose
and any remaining proceeds shall be returned and made available to the Borrower.
If an Event of Default has occurred and is continuing, the Borrower shall
immediately pay to the Agent all proceeds of the business interuption insurance
to the Agent to be applied to the Credit Obligations or deposited into the
Sinking Fund Collateral Account as the Agent may determine.
(v) Except as otherwise provided in Section 5.2(b)
below or in any other Credit Document, upon the receipt by Borrower or any of
its Subsidiares of any proceeds of insurance referred to in Section 8.4(a)(i),
the Borrower shall at its option either apply such net proceeds to replace the
damaged or destroyed property, or pay the net proceeds to the Agent to be
applied as provided below; provided, however, that upon and during the
continuance of a Default or Event of Default, the application of such net
proceeds shall be at the option of the Agent rather than the option of the
Borrower. Any proceeds which are applied to replace or rebuild damaged property
shall be applied pursuant to the written plan outlining the application of the
proceeds towards the replacement of the damaged or destroyed property as
delivered in advance to the Agent, which plan shall be acceptable to the Agent
in its reasonable discretion.
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Until the proceeds are so used, they shall be deposited in an account with
Collateral Agent and held as Collateral by the Collateral Agent for the Credit
Obligations pursuant to documentation satisfactory to Agent or the Collateral
Agent, and the Borrower or its Subsidiary, as appropriate, shall take such
actions as may be necessary for the Collateral Agent to maintain a perfected
first priority security interest therein.
Any funds paid to Agent (or if applicable, the Collateral Agent) pursuant to
this Section 5.2(a) shall be applied by the Agent to prepay in full any
outstanding Term Loans, together with accrued interest thereon to the date of
prepayment and remaining amounts (if any) shall be deposited by the Agent into
the Sinking Fund Collateral Account and held pursuant to the terms of the
Sinking Fund Collateral Account Agreement. Notwithstanding the foregoing, after
the expiration of the Surety L/C in accordance with its terms or the termination
of the Surety L/C and payment in full of the Term Loans and provided no Default
or Event of Default exists and is continuing, the Agent shall apply such amounts
to the outstanding Revolving Loans with a corresponding permanent reduction of
the Total Revolving Credit Commitment. If in such circumstances a Default or
Event of Default exists, then such funds shall be released as determined by
Agent, including as provided in Section 10. All prepayments made pursuant to
this Section 5.2(a) shall be applied in the inverse order of maturity and
subject to the applicable Breakage Amount.
(b) If the Required Lenders have delivered a notice in writing
to the Borrower declaring that an Event of Loss has occurred, (i) the
Commitments shall terminate forthwith and (ii) the Borrower shall prepay in full
the unpaid principal amount of the then outstanding Notes, together with accrued
interest thereon to the date of prepayment, and the applicable prepayment
premiums and/or breakage fees, and shall satisfy its obligations in respect to
all outstanding Letters of Credit by (A) paying or prepaying any amount due or
to become due by the Borrower to the beneficiaries under the Standby L/Cs, (B)
if the Standby L/C Issuer so agrees, providing the Standby L/C Issuer with cash
collateral as required pursuant to Section 3.1(d), pursuant to documentation in
form and substance satisfactory to the Standby L/C Issuer, in an amount equal to
the aggregate Stated Amount of the Standby L/Cs and depositing into the Sinking
Fund Collateral Account an amount of immediately available funds equal to the
Stated Amount of the Surety L/Cs, or (C) causing the termination of all
outstanding Letters of Credit, and in all cases stated paying any unpaid Unused
Commitment Fees accrued to the date of termination, and any unpaid Letter of
Credit Fees and other fees accrued hereunder to the date of prepayment, on the
earlier of (1) the date occurring ninety (90) days after the date of receipt of
such notice from the Required Lenders, and (2) the date on which insurance
proceeds are received with respect to such Event of Loss.
(c) Subject to the following sentence, on or before January 31st
of each Fiscal Year the Borrower shall make mandatory supplemental amortization
payments equal to 50% of the Excess Cash Flow for the Fiscal Year ended as of
the preceding September 30th, provided, however, for the Fiscal Year ending
September 30, 2004, the Excess Cash Flow shall be only for the period from and
including January 1, 2004 through and including September 30, 2004 (each such
payment an "Excess Cash Flow Payment"). To the extent required as a result of
any adjustment of the Permitted Tax Distribuition Annual Allowance, an
additional Excess Cash Flow Payment is required to be made with five (5)
Business Days of such
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adjustment. Any payments under Sections 5.2(d) in the Fiscal Year being measured
as of the previous September 30th shall reduce the Excess Cash Flow Payment on a
dollar-for-dollar basis. Any amount paid as an Excess Cash Flow Payment shall be
applied first to the prepayment of all outstanding amounts due in connection
with the Term Loans (to be applied in the stated order of maturity), and any
remaining amounts (if any) shall be deposited into the Sinking Fund Collateral
Account. All Excess Cash Flow Payments made pursuant to this Section 5.2(c) are
not subject to the prepayment penalties set forth in this Agreement other than
applicable breakage fees.
(d) The Borrower may, from time to time, prepay the Total Term
Loan Commitment,in whole or in part, provided that the amount of any such
partial prepayment shall be in a minimum amount of $400,000, together with
interest thereon to the date of prepayment, provided, however, that in
consideration for the privilege of making such prepayment, the Borrower shall
pay to the Lenders a premium of 1% of the amount of the principal amount
prepaid, if such prepayment occurs prior to the first anniversary of the Closing
Date. Except as otherwise described in Section 4.1 above, optional prepayments
pursuant to this Section 5.2(d) shall be made upon at least five (5) Business
Days' prior written irrevocable notice by the Borrower to the Agent, specifying
the date and amount of such prepayment. If any such notice is given, the
Borrower will make payment specified therein and such prepayment shall be due
and payable on the date specified therein, together with interest accrued
thereon to the date of prepayment, plus the Breakage Amount, if applicable.
Optional prepayments shall be applied to the principal amount of the Term Loans
pro rata and in the stated order of maturity.
(e) The Borrower may, from time to time, make voluntary
permanent reductions to the Total Revolving Credit Commitment, provided that the
amount of any such permanent reduction shall be in an amount not less than
$1,000,000 or whole multiples thereof, plus a reduction premium of 1% of the
amount of the reduction of the Total Revolving Credit Commitment if such
reduction occurs prior to the first anniversary of the Closing Date.
(f) The Borrower's obligations in respect of the Standby L/Cs
may be satisfied by (i) paying or prepaying any amount due or to become due by
the Borrower to the beneficiaries under the Standby L/Cs and causing the
termination of the Standby L/Cs pursuant to a written consent of the beneficiary
thereof satisfactory to the Standby L/C Issuer (which shall include a complete
release of the Standby L/C Issuer of all claims, obligations or liabilities to
the Standby L/C beneficiary) or (ii) if the Standby L/C Issuer so agrees,
providing the Standby L/C Issuer with cash collateral, pursuant to documentation
in form and substance satisfactory to the Standby L/C Issuer, in an amount equal
to the aggregate Stated Amount of the Standby L/Cs, plus solely in connection
with sub-section (ii) above, an amount equal to all applicable Standby L/C Fees
in the appropriate amount for the respective remaining terms of the applicable
Standby L/Cs until their respective stated expirations, together with all other
fees the Standby L/C Issuer deems appropriate.
(g) The Borrower's obligations in respect of the Surety L/C may
be satisfied only by: (i) an affirmative termination by the Bonding Company of
the Surety L/C, or (ii) a draw that is equal in amount to the Stated Amount of
the Surety L/C.
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(h) Upon payment in full of the Credit Obligations, the
termination of all Commitments and the satisfaction of the Borrower's
obligations with respect to the Standby L/Cs and the Surety L/C as provided in
Section 5.2(f) and (g) above, all to the satisfaction of the Agent, the Agent
and/or Collateral Agent (as appropriate) shall deliver to the Borrower, at the
Borrower's expense, such documents reasonably requested by the Borrower to
evidence the release of the Lenders' Liens on the Collateral pursuant to the
Senior Security Documents.
5.3 Interest Rates; Payments and Payment Dates.
(a) All Loans that are LIBOR Loans shall bear interest for each
Interest Period on the unpaid principal amount thereof at the LIBOR Rate. All
Loans that are Base Rate Loans shall bear interest on the unpaid principal
amount thereof at the Base Rate in effect from time to time. Notwithstanding the
foregoing, upon the occurrence and during the continuance of a Default or Event
of Default, all Loans shall bear interest at the Default Rate.
(b) If all or a portion of the principal amount of any LIBOR
Loan made hereunder shall not be paid when due (whether at the stated maturity,
by acceleration or otherwise), such LIBOR Loan shall be converted to a Base Rate
Loan at the end of the Interest Period therefore.
(c) Interest on the aggregate unpaid principal amount of the
Loans shall be paid in arrears on each Interest Payment Date.
(d) The principal amount of all outstanding Revolving Loans,
together with all accrued interest thereon, shall be due and payable in full on
the Revolving Credit Termination Date.
(e) Prior to the first Term Loan advanced under the terms of
this Agreement, all Term Loan Scheduled Amortization Payments shall be delivered
by the Borrower to the Agent for deposit into the Sinking Fund Collateral
Account. After the first Term Loan is advanced under the terms of this
Agreement, and commencing on the last day of the first Fiscal Quarter after a
Term Loan is made and continuing on the last day of each Fiscal Quarter
thereafter until the Term Loan is paid in full, the Borrower shall make the Term
Loan Scheduled Amortization Payment due on that day with respect to Term Loans.
All Term Loans shall be due and payable in full on the Term Loan Termination
Date.
(f) If prior to the Term Loan Termination Date, the aggregate
outstanding amounts due in connection with the Term Loans is paid in full, and
provided no other Term Loans are advanced after that date, each Term Loan
Scheduled Amortization Payment due after payment in full of the Term Loans,
shall be made to the Agent, and at direction of the Agent, deposited into the
Sinking Fund Collateral Account by the Collateral Agent. However, if, as
contemplated in the preceding sentence, Term Loans are advanced after the date
that the aggregate amount of Term Loans are paid in full, the amount of each
Term Loan Scheduled Amortization Payment thereafter made shall first be applied
to the outstanding amounts due in connection with the Term Loans, with any
excess (if any) to then be deposited by the Collateral Agent (at the direction
of the Agent) in the Sinking Fund Collateral Account.
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5.4 Interest Rate Conversions. Unless the Borrower otherwise elects to
continue any LIBOR Loan by written notice to the Agent not less than three (3)
days in advance, any LIBOR Loan will be continued such upon the expiration of
the Interest Period with respect thereto; provided, that, no LIBOR Loan will be
continued as such when any Event of Default has occurred and is continuing, but
shall automatically be converted to a Base Rate Loan on the last day of the
Interest Period with respect thereto. The Interest Period for any such continued
LIBOR Loan shall be of the same duration as the Interest Period of the LIBOR
Loan so continued, unless otherwise specified by the Borrower in a Notice of
Term Loan Borrowing or Notice of Revolving Loan Borrowing or (x) in the case of
Revolving Loans, if such Interest Period would extend beyond the Revolving
Credit Maturity Date, then such Interest Period will end on the Revolving Credit
Maturity Date and (y) in the case of Term Loans, if such Interest Period would
extend beyond the Term Loan Maturity Date, then such Interest Period will end on
the Term Loan Maturity Date.
5.5 Pro Rata Treatment and Payment Dates.
(a) Each borrowing by the Borrower from the Lenders, each
payment (including each prepayment) by the Borrower on account of the principal
of and interest on the Notes and on account of any prepayment premium, breakage
fee, extension fee, Unused Commitment Fee or Letter of Credit Fee hereunder,
shall (subject to the provisions of Section 11) be made pro rata according to
the respective Revolving Credit Commitment Percentages and Term Loan Commitment
Percentages of such Lenders, as the case may be. All payments (including
prepayments) due hereunder or under the Notes on account of principal, interest,
fees, and any other obligation incurred hereunder shall be paid to the Agent by
wire or electronic transfer for deposit and credit to its account, in freely
transferable Dollars and in immediately available funds without set-off or
counterclaim. The Agent shall distribute such payments to the Lenders promptly
upon receipt in like funds as received. No such payment, however, shall be
deemed to be a waiver of any claims the Borrower may assert against the Agent or
the Lenders. All payments hereunder shall be made without any presentment of the
Notes to the Borrower, but upon payment in full of the Notes and the termination
of the Commitments, the holders thereof shall cancel them and, return them to
the Borrower.
(b) If any payment hereunder (other than payments on LIBOR
Loans) becomes due and payable on a day other than a Business Day, such payment
shall be extended to next succeeding Business Day and, with respect to payments
of principal, interest thereon shall be payable at the then applicable rate
during such extension. If any payment on LIBOR Loans becomes due and payable on
a day other than a Working Day, the maturity thereof shall be extended to the
next succeeding Working Day unless the result of such extension would be to end
such payment into another calendar month, in which event such payment shall be
made on the immediately preceding Working Day.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim otherwise, obtain payment in respect of any principal of or
interest on any of its Loans or participations in the Letters of Credit
resulting in such Lender receiving payment of a greater proportion of the
aggregate amount of its Loans or participations in the Letters of Credit and
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accrued interest thereon than the proportion received by any other Lender, then
the Lender receiving such greater proportion shall purchase (for cash at face
value) participations in the Loans or participations in the Letters of Credit of
other Lenders to the extent necessary so that the benefit of all such payments
shall be shared by the Lenders ratably in accordance with the aggregate amount
of principal of and accrued interest on their respective Loans or participations
in the Letters of Credit; provided that (i) if any such participations are
purchased and all or any portion of the payment giving rise thereto is
recovered, such participations shall be rescinded (and the purchase price
restored) to the extent of such recovery, without interest, and (ii) the
provisions of this subsection shall not be construed to apply to any payment
made by the Borrower pursuant to and in accordance with the express terms of
this Agreement or any payment obtained by a Lender as consideration for
assignment of or sale of a participation in any of its Loans or participations
in the Letters of Credit to any assignee or participant, other than to the
Borrower (as to which the provisions of this paragraph shall apply). The
Borrower consents to the foregoing and agrees, to the extent it may effectively
do so under Applicable Laws, that any Lender acquiring a participation pursuant
to the foregoing arrangements may exercise against the Borrower rights of
set-off and counterclaim with respect to such participation as fully as if such
Lender were a direct creditor of the Borrower in the amount of such
participation.
5.6 Inability to Determine LIBOR Rate. In the event that any Lender
(each an "Affected Lender") shall have individually determined (which
determination shall be conclusive and binding upon the Borrower) that by reason
of circumstances affecting the interbank LIBOR market, adequate and reasonable
means do not exist for ascertaining the LIBOR Rate applicable for any Interest
Period with respect to (a) proposed Loans that the Borrower has requested be
made as LIBOR Loans, or (b) the continuation of LIBOR Loans beyond the
expiration of the then current Interest Period therefor, the Affected Lender
through the Agent shall give notice of such event to the Borrower. Within thirty
(30) days following the date of such notice by the Agent (after consultation
with each Affected Lender) and the Borrower shall enter into negotiations in
good faith with a view to agreeing on an alternative basis acceptable to the
Borrower and the Affected Lender for, determining the interest rate (the
"Substitute LIBOR Rate") which shall be applicable during such Interest Period
for the LIBOR Loans to which such Interest Period applies and which shall
reflect the cost to the Affected Lender of funding such LIBOR Loans for such
Interest Period from alternate sources plus the Applicable Margin for LIBOR
Loans. If, at the expiration of thirty (30) days from the giving of such notice
by the Agent, (i) the Agent, the Affected Lender and the Borrower have agreed to
such Substitute LIBOR Rate, such Substitute LIBOR Rate shall take effect with
respect to such Interest Period from the beginning of such Interest Period with
respect to such affected Lender's Loans so affected, or (ii) Agent, the Affected
Lender and Borrower have not agreed to a Substitute LIBOR Rate, (x) any
requested LIBOR Loans of such Affected Lender shall be deemed to have been made
as Base Rate Loans, (y) any Loans of such Affected Lender that were to have been
converted to LIBOR Loans shall be continued Base Rate Loans, as the case may be,
and (z) any outstanding LIBOR Loans of such Affected Lender shall be converted,
on the last day of the then current Interest Period therefor, to Base Rate
Loans. Until such notice has been withdrawn by the Affected Lender, no further
LIBOR Loans of such Affected Lender shall be made nor shall any Base Rate Loans
of such Affected Lender be converted to LIBOR Loans pursuant to Section 5.4.
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5.7 Computation of Interest and Fees.
(a) Interest in respect of LIBOR Loans shall be calculated on
the basis of a three hundred sixty (360) day year for the actual days elapsed
(including the first but excluding the last day). Interest in respect of Base
Rate Loans, and all fees hereunder, shall be calculated on the basis of a three
hundred sixty-five (365) (or three hundred sixty-six (366), as the case may be)
day year for the actual days elapsed (including the first but excluding the last
day).
(b) Each determination of an interest rate by the Agent pursuant
to any provision of this Agreement shall be conclusive and binding on the
Borrowers and the Lenders in the absence of manifest error.
5.8 Illegality. Notwithstanding any other provision herein, if any
change in any Applicable Law or in the interpretation or application thereof
shall make it unlawful for any Lender to make or maintain Loans at the LIBOR
Rate as contemplated by this Agreement, (a) the commitment of such Lender
hereunder to make or maintain Loans at the LIBOR Rate, shall forthwith be
cancelled, and (b) such Lender's Loans then outstanding at the LIBOR Rate, if
any, shall bear interest at the Base Rate and all Loans made hereafter by such
Lender shall bear interest at the Base Rate.
5.9 Applicable Law.
(a) In the event that any change in any Applicable Law or
interpretation or application thereof or compliance by any Lender with any
request or directive whether or not having the force of law from any central
bank or other Governmental Authority made subsequent to the date hereof:
(i) shall subject any Lender to any tax of any kind
whatsoever with respect to this Agreement, any Note or any Loan bearing interest
at the LIBOR Rate made by it, or change the basis of taxation of payments to
such Lender in respect thereof (except for taxes covered by Section 5.11 and
changes in the rate of tax on the overall net income of such Lender);
(ii) shall impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities of or for the account of, advances, loans
or other extensions of credit by, or any other acquisition of funds by, any
office of such Lender which is not otherwise included in the determination of
the LIBOR Rate hereunder; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender of
making, or maintaining LIBOR Loans or to reduce any amount receivable hereunder
in respect thereof then, in any such case, the Borrower shall promptly pay such
Lender, within five (5) Working Days of demand therefor, any additional amounts
necessary to compensate such Lender for
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such increased cost or reduced amount receivable. If any Lender becomes entitled
to claim any additional amounts pursuant to this Section, it shall promptly
notify the Borrower, through the Agent of the event by reason of which it has
become so entitled; provided, that the failure of such Lender to so notify the
Borrower shall not act as a waiver of the right of such Lender to receive such
additional amounts when such Lender provides the required notice to the
Borrower. A certificate as to any additional amounts payable pursuant to this
Section submitted by such Lender, through the Agent to the Borrower shall be
conclusive in the absence of manifest error. This covenant shall survive
termination of this Agreement and the payment of the Notes and all other amounts
payable hereunder.
(b) In the event that any Lender shall have determined that any
change in any Applicable Law regarding capital adequacy or in the interpretation
or application thereof or compliance by such Lender or any corporation
controlling such Lender with any request or directive regarding capital adequacy
(whether or not having the force of law) from any Governmental Authority made
subsequent to the date hereof does or shall have the effect of reducing the rate
of return on such Lender's or such corporation's capital as a consequence of its
obligations hereunder to a level below that which such Lender
or such corporation could have achieved but for such change or compliance
(taking into consideration such Lender's or such corporation's policies with
respect to capital adequacy) by an amount deemed by such Lender to be material,
then from time to time, after submission by such Lender to the Borrower (with a
copy to the Agent) of a written request therefor, the Borrower shall pay to such
Lender such additional amount or amounts as will compensate such Lender for such
reduction. A certificate as to any additional amounts payable pursuant to this
Section submitted by such Lender, through the Agent to the Borrower shall be
conclusive in the absence of manifest error.
5.10 Indemnity. The Borrower agrees to indemnify each Lender and to hold
each Lender harmless from any loss or expense which such Lender may sustain or
incur as a consequence of (a) default by the Borrower in making a borrowing or
continuation of Loans after the Borrower has given a notice requesting the same
in accordance with the provisions of this Agreement or (b) the making of a
prepayment of a Loan (including a voluntary repayment of principal of a
Revolving Loan) on a day which is not the last day of an Interest Period with
respect thereto, including, without limitation, any such loss or expense arising
from the reemployment of funds obtained by it for the then current Interest
Period or from fees payable to terminate the deposits from which such funds were
obtained. Each Lender agrees to use reasonable efforts to minimize any such loss
or expense. This covenant shall survive the termination of this Agreement and
the payment of the Notes and all other amounts payable hereunder and the
expiration of the Letters of Credit.
5.11 Taxes.
(a) All payments made by the Borrower under this Agreement, the
Notes or with respect to Letters of Credit shall be made free and clear of, and
without deduction or withholding for or on account of, any future income, stamp
or other taxes, levies, imposts, duties, charges, fees, deductions or
withholdings and all liabilities with respect thereto, now or hereafter posed,
levied, collected, withheld or assessed by any Governmental Authority,
excluding, in case of the Agent, the Collateral Agent, the Lenders, the Standby
L/C Issuer or the Surety L/C Issuer,
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taxes imposed on or measured by net income, overall gross receipts, or capital
of the Agent, the Collateral Agent, the Lenders, the Standby L/C Issuer or the
Surety L/C Issuer or any franchise tax imposed in lieu thereof as a result of a
present or former connection between the jurisdiction of the government or
taxing authority imposing such tax and the Agent, the Collateral Agent, the
Lenders, the Standby L/C Issuer or the Surety L/C Issuer (excluding a connection
arising solely from the Agent, the Collateral Agent, the Lenders, the Standby
L/C Issuer or the Surety L/C Issuer having executed, delivered or performed its
obligations or received a payment under, or enforced, this Agreement, the Notes
or the Letters of Credit) or any political subdivision or taxing authority
thereof or therein (all such non-excluded taxes, levies, imposts, ties, charges,
fees, deductions, liabilities and withholdings being hereinafter called
"Taxes"). If any Taxes are required to be withheld from any amounts payable to
the Agent, the Collateral Agent, the Lenders, the Standby L/C Issuer or the
Surety L/C Issuer hereunder or under the Notes or the Letters of Credit, the
amounts so payable to the Agent, the Collateral Agent, the Lenders, the Standby
L/C Issuer or the Surety L/C Issuer shall be increased to the extent necessary
to yield to the Agent, the Collateral Agent, the Lenders, the Standby L/C Issuer
or the Surety L/C Issuer (after payment of all Taxes) interest or any such other
amounts payable hereunder at the rates or in the amounts specified in this
Agreement and the Notes. Whenever any Taxes are payable by the Borrower, as
promptly as possible thereafter the Borrower shall send to the Agent, the
Collateral Agent, the Lenders, the Standby L/C Issuer and the Surety L/C Issuer
affected thereby a certified copy of an original official receipt received by
the Borrower showing payment thereof. If the Borrower fails to pay any Taxes
when due to the appropriate taxing authority or fails to remit to the Agent, the
Collateral Agent, the Lenders, the Standby L/C Issuer and the Surety L/C Issuer
affected thereby the required receipts or other required documentary evidence,
the Borrower shall indemnify the Agent, the Collateral Agent, the Lenders, the
Standby L/C Issuer and the Surety L/C Issuer affected thereby for any
incremental taxes, interest or penalties that may become payable by the Agent,
the Collateral Agent, the Lenders, the Standby L/C Issuer or the Surety L/C
Issuer as a result of such failure. This indemnification payment shall be made
promptly following written demand by the Agent, the Collateral Agent, the
Lenders, the Standby L/C Issuer or the Surety L/C Issuer affected thereby (as
the case may be). This covenant shall survive the termination of this Agreement
and the payment of the Notes and all other amounts payable hereunder and the
expiration of the Letters of Credit.
(b) Each Lender that is not incorporated under the laws of the
United States of America or a state thereof agrees that it will deliver to the
Borrower and the Agent (i) two duly completed copies of United States Internal
Revenue Service Form 1001 or 4224 or successor applicable form, as the case may
be, and (ii) an Internal Revenue Service Form W-8 or W-9 or successor applicable
form. Each such Lender also agrees to deliver to the Borrower and the Agent two
further copies of the said Form 1001 or 4224 and Form W-8 or W-9, or successor
applicable forms or other manner of certification, as the case may be, on or
before the date that any such form expires or becomes obsolete or after the
occurrence of any event requiring a change in the most recent form previously
delivered by it to the Borrower, and such extensions or renewals thereof as may
reasonably be requested by the Borrower or the Agent unless in any such case an
event (including, without limitation, any change in treaty, law or regulation)
has occurred prior to the date on which any such delivery would otherwise be
required which renders all such forms inapplicable or which would prevent such
Lender from duly completing and delivering any such form with respect to it and
such Lender so advises the
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Borrower and the Agent. Such Lender shall certify (i) in the case of a Form 1001
or 4224, that it is entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income taxes and (ii) in
the case of a Form W-8 or W-9, that it is entitled to an exemption from United
States backup withholding tax.
5.12 Payments by Agent.
(a) Unless the Agent shall have been notified in writing by any
Lender prior to a Borrowing Date that such Lender will not make the amount which
would constitute its Commitment Percentage of the borrowing on such date
available to the Agent, the Agent may assume that such Lender has made such
amount available to the Agent on such Borrowing Date and the Agent may, in
reliance upon such assumption, make available to the Borrower a corresponding
amount. If such amount is made available to the Agent by such Lender on a date
after such Borrowing Date, such Lender shall pay to the Agent on demand an
amount equal to the product of (i) the daily average Federal Funds Rate during
such period, times (ii) the amount of such Lender's Commitment Percentage of
such borrowing, times (iii) the number of days from and including such Borrowing
Date to but excluding the date on which such Lender's Commitment Percentage of
such borrowing shall have become immediately available to the Agent. A
certificate of the Agent submitted to any Lender with respect to any amounts
owing under this Section 5.12(a) shall be conclusive, absent manifest error. If
such Lender's Commitment Percentage is not in fact made available to the Agent
by such Lender within three (3) Business Days of such Borrowing Date, the Agent
shall be entitled to demand repayment of such amount with interest thereon at
the rate per annum applicable to Base Rate Loans hereunder from the Borrower.
Payments by the Borrower made pursuant to this Section 5.12(a) are not subject
to the payment penalties or limitations set forth in Section 5.2(e).
(b) Should any Lender (a "Non-Advancing Lender"), in violation
of its obligations under this Agreement, fail to make any Loan, or fund when due
the purchase price of any Letter of Credit participations hereunder (each a "L/C
Participation Obligation"), (i) the Agent may in its discretion (but with no
obligation) fund the Loan on behalf of the Non-Advancing Lender if it has not
received notice that the Non-Advancing Lender does not intend to fund the Loan,
and/or (ii) the Agent shall cooperate with the Borrower to find a Permitted
Assignee that shall be willing to assume the Non-Advancing Lender's obligations
under this Agreement (including the obligation to make the Loan which the
Non-Advancing Lender failed to make but without assuming any liability for
damages for failing to have made any previous Loans). Subject to the provisions
of the next succeeding sentence, such Permitted Assignee shall be substituted
for the Non-Advancing Lender hereunder upon execution and delivery of a
Commitment Transfer Supplement. Nothing in (and no action taken pursuant to)
this Section 5.12 shall relieve the Non-Advancing Lender from any liability it
might have to the Borrower or to the other Lenders as a result of its failure to
make any Loan or to fund a L/C Participation Obligation. If a Permitted Assignee
is not substituted for the Non-Advancing Lender then, subject to the other
provisions of this Agreement, the Borrower shall have the right to prepay in
full the Loans made by such Non-Advancing Lender, and such prepayment in full
shall not be subject to any premium or fee. The failure of a Lender to make a
Loan or to fund a L/C Participation Obligation hereunder shall not, in and of
itself, relieve any other Lender of its obligation to make its Loans hereunder
or to fund a L/C Participation Obligation,
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but the other Lenders shall not have any obligation to increase the amount of
their respective Loans, Commitments or L/C Participation Obligations.
SECTION 6
REPRESENTATIONS AND WARRANTIES
In order to induce the Agent, the Collateral Agent and the Lenders to
enter into this Agreement and to make the Loans and to induce the Letters of
Credit Issuer to issue the Letters of Credit, the Borrower represents and
warrants to the Lenders under Sections 6.1 through 6.26 that:
6.1 Borrower's Existence and Business.
(a) The Borrower is a limited liability company duly
organized and validly existing and in good standing under the limited liability
company law of the State of New York. The Borrower is duly qualified to do
business under the laws of each other jurisdiction, if any, in which the conduct
of its business or the ownership, lease or operation of property so requires
except where the failure to so qualify would not have a Material Adverse Effect.
The articles of organization of the Borrower have been duly filed in the office
of the Secretary of State of New York and no other filing, recording, publishing
or other act is necessary or appropriate in connection with the existence or the
business of the Borrower except those which have been duly made or performed.
Prior to the date hereof, the Borrower has engaged in no business other than the
development and operation of the Project, the purchase, marketing and sale of
salt.
(b) The only members of the Borrower on the date of the
execution and delivery of this Agreement are those listed on Schedule 4 hereto.
All outstanding Capital Stock has been duly issued, fully paid, is
non-assessable and has not been issued in violation of any preemptive rights.
(c) As of the last day of any Annual Clean-Up Period, the
Borrower will have no outstanding payables past due, except those being
contested in good faith in the ordinary course of business for which appropriate
reserves have been made in accordance with GAAP.
6.2 Compliance with Law. Both the Borrower and the Project are in
compliance with all Requirements of Law applicable to them, respectively, except
with respect to matters that, individually or in the aggregate, do not
constitute a Material Adverse Effect.
6.3 Power and Authorization; Enforceable Obligations.
(a) The Borrower has full power and authority and the legal
right (subject to the receipt of the approvals referred to in Section 6.4) to
own and operate the Project, to conduct its business as now conducted and as
proposed to be conducted by it, to execute, deliver and perform this Agreement
and the Credit Documents to which it is or is to become a party, to take all
action as may be necessary to complete the transactions contemplated
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hereunder and thereunder, to grant the Liens provided for in the Senior Security
Documents to which it is a party and to borrow hereunder. The Borrower has taken
all necessary company and legal action to authorize the borrowings hereunder on
the terms and conditions of this Agreement and the Credit Documents to which it
is a party, to grant the Liens provided for in the Senior Security Documents to
which it is a party and to authorize the execution, delivery and performance of
this Agreement, the Notes, and the other Credit Documents to which it is a party
or is to become a party. No consent or authorization of, filing with, or other
act by or in respect of any other Person that has not been made, obtained or
complied with, is required in connection with the borrowings hereunder or with
the execution, delivery or performance by the Borrower or the validity or
enforceability as to the Borrower of this Agreement, the Notes, or the other
Credit Documents. Each of this Agreement and the other Credit Documents to which
the Borrower is a party has been duly executed and delivered by the Borrower
and, assuming the due authorization and delivery hereof and thereof by the other
parties hereto and thereto, constitutes, and each of the Notes and the other
Credit Documents to which the Borrower is to become a party will upon execution
and delivery thereof by the Borrower and, assuming due authorization thereof, by
the other parties thereto (if any) constitute, a legal, valid and binding
obligation of the Borrower enforceable against the Borrower in accordance with
its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the rights of
creditors generally and by general principles of equity (whether such
enforcement is sought in a proceeding at law or in equity).
(b) The Borrower has provided the Agent complete copies of all
Material Contracts which exist on the date hereof. Borrower shall deliver to
Agent copies of each Material Contract entered into by the Borrower after the
date of this Agreement within five (5) Business Days of its effective date.
6.4 Governmental Approvals and Other Consents and Approvals.
(a) No Governmental Approvals are required for (i) the
participation by the Borrower in the transactions contemplated by this Agreement
and the other Credit Documents, (ii) the validity and enforceability against the
Borrower of the Credit Documents to which it is a party, and (iii) the grant by
the Borrower of the Liens created pursuant to the Senior Security Documents to
which it is a party and the validity, perfection and enforceability thereof and
the exercise by the Agent, the Collateral Agent and the Lenders of their rights
and remedies thereunder (except any Governmental Approvals or other consents or
approvals applicable to the Agent, the Collateral Agent, the Lenders, the
Standby L/C Issuer or the Surety L/C Issuer).
(b) No Governmental Approvals (except as set forth on Schedule
5), or other consents or approvals (other than those already obtained or that
are obtainable in due course and will be obtained when necessary) are required
in connection with the validity and enforceability of the XXX/Borrower Mortgage.
(c) The Borrower possesses all Governmental Approvals presently
required or necessary to own or lease, as the case may be, and to operate its
properties and to carry on its business as now or proposed to be conducted,
except where the failure to obtain such Permits
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would not, individually or in the aggregate, have a Material Adverse Effect. A
list of all such Governmental Approvals is set forth in Schedule 5. The Borrower
has fulfilled and performed all of its obligations with respect to such
Governmantal Approvals and no event has occurred which allows, or after notice
or lapse of time would allow, revocation or termination thereof or results in
any other material impairment of the rights of the holder of any such
Governmental Approval; and the Borrower has not received any notice of any
proceeding relating to revocation or modification of any such Governmental
Approval except where such revocation or modification would not, individually or
in the aggregate, have a Material Adverse Effect.
6.5 No Legal Bar. The execution, delivery and performance of this
Agreement, the Notes and the other Credit Documents as contemplated in
accordance with the terms thereof, the borrowings by the Borrower hereunder, the
use of the proceeds thereof or the issuances of the Letters of Credit (a) will
not violate, constitute a breach of or a default (with the passage of time or
otherwise) under, require the consent of any person (other than consents already
obtained and in full force and effect) under (i) any Requirement of Law or any
agreement, instrument or other contractual obligation of the Borrower or by
which any of its properties or assets are bound that relates to ownership,
operation and/or maintenance of the Project (each an "Applicable Agreement") or
(ii) any other Requirement of Law as to which any such violations, individually
or in the aggregate, could reasonably be expected to have a Material Adverse
Effect and (b) will not result in, or require, the creation or imposition of any
Lien on any of the properties or revenues of the Borrower pursuant to any
Requirement of Law or Applicable Agreement or (c) result in an acceleration of
any Indebtedness
6.6 No Proceeding or Litigation. Except for the F-K Litigation, no
litigation, investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or, to the best knowledge of the Borrower,
after due inquiry, threatened against or affecting the Borrower or against or
affecting any of its properties, rights, revenues or assets, or the Project, as
the case may be that would individually or in the aggregate, have a Material
Adverse Effect. The Borrower is not subject to any judgment, order, decree, rule
or regulation of any Governmental Authority that would, individually or in the
aggregate, have a Material Adverse Effect.
6.7 Material Contracts.
Each Material Contract has been duly authorized, executed and
delivered by all parties thereto, has not been amended or otherwise modified, is
in full force and effect and is binding upon and enforceable against all parties
thereto in accordance with its terms. Neither the Borrower nor any of its
Subsidiaries is in default in any material respect under or with respect to any
Material Contract except as otherwise disclosed to the Agent. No notice of
breach or default has been given to the Borrower or any of its Subsidiaries
under any Material Contract except as otherwise disclosed to the Agent. To the
best knowledge of the Borrower after due inquiry, no other party to a Material
Contract is in breach or default in any material respect thereunder except as
otherwise disclosed to the Agent. Upon consummation of the transactions
contemplated hereunder and in the Senior Second Secured Note Documentation, no
Default or Event of Default shall exist and be continuing. No Event of Loss
exists.
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6.8 Financial Statements.
(a) The Borrower has heretofore furnished to the Agent copies of
(i) the Borrower's audited balance sheet as of September 30, 2003 and 2002, and
statements of operations, changes in members' equity and cash flows for the
Fiscal Year then ended, and (ii) the Borrower's balance sheet as of December 31,
2003, and statements of operations, changes in members' equity and cash flows
for the Fiscal Quarter then ended. These financial statements have been prepared
in accordance with GAAP (except the December 31, 2003 statements do not contain
notes and are subject to normal year-end adjustments), and present fairly, in
all material respects, the financial condition of the Borrower as of the
respective dates thereof and the results of operations, changes in members'
capital and cash flow of the Borrower for the respective periods then ended.
Except for liabilities and obligations disclosed or provided for in the December
31, 2003 balance sheet the Borrower did not have as of that date any material
liabilities or obligations of any nature whatsoever (whether absolute,
contingent or otherwise and whether or not due) that, in accordance
with GAAP, would have been required to have been disclosed or provided for in
such balance sheet. All books of account of Borrower fully and fairly disclose
all of its material transactions, properties, assets, investments, liabilities
and obligations, are in its possession and are true, correct and complete in all
material respects.
(b) Since September 30, 2003, (i) the Borrower has not incurred
any liabilities, direct or contingent, that are material, individually or in the
aggregate, to the Borrower, or (except for transactions relating to this
Agreement or the Senior Second Secured Note Documents) has entered into any
transactions not in the ordinary course of business, (ii) there has not been any
material decrease in the Capital Stock or any material increase in long-term
debt or any material increase in short-term debt of the Borrower, or any payment
of or declaration to pay any dividends or any other distribution with respect to
the Borrower, and (iii) there has not been any material adverse change in the
properties, business, prospects, operations, earnings, assets, liabilities or
condition (financial or otherwise) of the Borrower (each of clauses (i), (ii)
and (iii), a "Material Adverse Change"). To the knowledge of the Borrower after
due inquiry, there is no event that is reasonably likely to occur, which if it
were to occur, would, individually or in the aggregate, have a Material Adverse
Effect.
(c) The Borrower has prepared, and has heretofore furnished to
the Agent and each Lender a copy of, an unaudited consolidated balance sheet of
the Borrower as of December 31, 2003, giving pro forma effect to the the
extensions of credit under this Agreement and the issuance of the Senior Second
Secured Notes, the payment of transaction fees and expenses related to the
foregoing, and the consummation of the other transactions contemplated hereunder
and thereunder, including all distributions to the Borrower's members that shall
be made with the proceeds thereof, all as if such events had occurred on such
date (the "Pro Forma Balance Sheet"). The Pro Forma Balance Sheet has been
prepared in accordance with GAAP (subject to the absence of footnotes required
by GAAP and subject to normal year-end adjustments) and, subject to stated
assumptions made in good faith and having a reasonable basis set forth therein,
presents fairly, in all material respects, the financial condition of the
Borrower on an unaudited pro forma basis as of the date set forth therein after
giving effect to the consummation of the transactions as described above.
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(d) The Borrower has prepared, and has heretofore furnished to
the Agent and each Lender a copy of, annual projected balance sheets and
statements of operations, changes in members' equity and cash flows of the
Borrower for the twelve (12) month period after the Closing Date, giving effect
to the extensions of credit made under this Agreement, the issuance of the
Senior Second Secured Notes and the payment of transaction fees and expenses
related to the foregoing, and the consummation of the other transactions
contemplated hereby and thereby, including all distributions to be made by the
Borrower to its members (the "Initial Projections"). In the opinion of
management of the Borrower, the assumptions used in preparation of the Initial
Projections were reasonable when made and continue to be reasonable as of the
date hereof. The Projections have been prepared in good faith by the executive
and financial personnel of the Borrower and represent a reasonable estimate of
the future performance and financial condition of the Borrower, subject to the
uncertainties and approximations inherent in any projections.
(e) As of the Closing Date, and after giving effect on the
Closing Date to the the extensions of credit made under this Agreement, the
issuance of the Senior Second Secured Notes and the payment of transaction fees
and expenses related to the foregoing, and the consummation of the other
transactions contemplated hereby and thereby, including all distributions to be
made by the Borrower to its members, the Borrower will be Solvent based upon the
Borrower's fair value basis balance sheet (the "Fair Value Basis Balance
Sheet").
6.9 Ownership of Property; Liens. The XXX has been granted fee title to,
and the Mortgages constitute a Lien upon, the Leased Premises free and clear of
all Liens except Permitted Liens. The Borrower has good title to or a valid
leasehold interest in or license of, all property purportedly owned or used by
it, and a valid leasehold interest in the Leased Premises, free and clear of all
Liens other than Permitted Liens. No mortgage or financing statement or other
instrument or recordation covering all or any part of the Collateral which has
been executed by, or with the permission of, the Borrower or the XXX is on file
in any recording office, except such as has been filed, or has been delivered to
the Agent for filing, in favor of the Agent for the benefit of the Lenders or as
evidence of Permitted Liens. The XXX has all rights purported to be given to it
under any easements, leases and other title instruments described in the Title
Insurance Policy, subject only to the Liens specified therein and other
Permitted Liens, and the IDA's rights thereunder are not subject to any contest
or challenge and are encumbered only by the Mortgages as a perfected Lien and
other Permitted Liens. All such easements, leases and other title instruments
are valid and subsisting and are in full force and effect. The XXX is not in
default under any such easement, lease or title instrument, and no event has
occurred which, with the giving of notice or the passage of time, or both, would
constitute a default thereunder.
6.10 Taxes.
(a) The Borrower has filed or caused to be filed all tax returns
which are required to be filed by it, and has paid or caused to be paid all
taxes shown to be due and payable on such returns or on any assessments made
against it, or any of its property and all other taxes, fees or other charges
imposed on it or any of its property by any Governmental Authority (other than
any of the amount or validity of which are currently being contested in good
faith by appropriate proceedings and with respect to which reserves in
conformity with GAAP have been
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provided on the books of the Borrower, as the case may be, and to the extent
non-payment thereof could not be reasonably expected to materially impair the
value of the security granted under the Senior Security Documents); no tax Lien
has been filed, and, to the knowledge of the Borrower no claim is being
asserted, with respect to any such tax, fee or other charge.
(b) Except for (i) transfer taxes and registration, recordation
and other miscellaneous fees payable in connection with the recordation of the
Mortgages, if any, and the filing of financing statements required to perfect
the Agent's rights (and where appropriate the Collateral Agent's rights) under
the Senior Security Documents and with respect to the Senior Second Secured
Notes, all of which taxes and fees except to the extent not yet due as of the
date of the execution and delivery of this Agreement have been paid in full by
the Borrower on or before the date of the execution and delivery of this
Agreement and (ii) income, capital, any receipts or franchise taxes imposed with
respect to the Agent, the Collateral Agent or Lenders by the jurisdiction in
which the Agent, the Collateral Agent or any Lender is organized, in which an
office of the Agent, the Collateral Agent or such Lender is located or in which
the Project is located or any political subdivision or taxing authority thereof
or therein, neither the execution and delivery of this Agreement, the Notes or
any other Credit Document, nor the consummation of any of the transactions
contemplated hereby or thereby, will result in any tax, levy, impost, duty,
charge or withholding imposed by the United States or any agency or taxing
authority thereof, or by any state of the United States or any political
subdivision or taxing authority thereof or therein, on or with respect to such
execution, delivery or consummation.
6.11 Regulation U. No part of the proceeds of any Loans will be used for
"purchasing" or "carrying" any "margin stock" within the respective meanings of
each of the quoted terms under Regulation U of the Board of Governors of the
Federal Reserve System as now and from time to time hereafter in effect or for
any purpose which violates the provisions of the Regulations of such Board of
Governors. If requested by any Lender or the Agent, the Borrower will furnish to
the Agent and each Lender a statement to the foregoing effect in conformity with
the requirements of FR Form U-1 referred to in said Regulation U.
6.12 ERISA. Neither the Borrower nor any of its Subsidiaries have or
participate in a Multiemployer Plan. No Reportable Event has occurred during the
five-year period prior to the date on which this representation is made or
deemed made with respect to any Plan, and each Plan has complied in all material
respects with the applicable provisions of ERISA and the Code. The present value
of all accrued benefits under each Single Employer Plan maintained by the
Borrower (based on those assumptions used to fund the Plans) did not, as of the
last annual valuation date prior to the date on which this representation is
made or deemed made, exceed the value of the assets of such Plan allocable to
such accrued benefits. The Borrower has not had a complete or partial withdrawal
from any Multiemployer Plan, and the Borrower would not become subject to any
liability under ERISA if the Borrower were to withdraw completely from the
Multiemployer Plans as of the valuation date most closely preceding the date on
which this representation is made or deemed made. No such Multiemployer Plan is
in reorganization (within the meaning of Section 4241 of ERISA) or insolvent
(within the meaning of Section 441 of ERISA). The Borrower's most recent
financial statements delivered to the Agent accurately reflect, as of the date
of such statements, any liability of the Borrower for post-retirement
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benefits to be provided to their current and former employees under Plans which
are welfare benefit plans (as defined in Section 3(1) of ERISA).
6.13 Investment Company Act. The Borrower is not an "investment company"
or a company "controlled" by an "investment company" or an "investment adviser",
within the meaning of the Investment Company Act of 1940, as amended.
6.14 Senior Security Documents. Upon execution and delivery thereof, the
Senior Security Documents will be effective to create, in favor of the
Collateral Agent (or as appropriate the Agent) for the benefit of the Lenders,
legal, valid and enforceable liens on and first perfected security interests in
all right, title, estate and interest of the Borrower or the XXX, as the case
may be, in and to the Collateral and all necessary and appropriate recordings
(including those shown on Schedule 9) and filings will have been duly effected
in all appropriate public offices so that the Liens created by each of the
Senior Security Documents to which the Borrower is a party will constitute
perfected Liens on and first perfected security interests in all right, title,
estate and interest of the Borrower in and to the Collateral described therein,
prior and superior to all other Liens, except certain of the Permitted Liens as
indicated on Schedule 9(a). As of the date of this Agreement, the recordings,
filings and other actions shown on Schedule 9 are all the recordings, filings
and other actions necessary to establish, protect and perfect the Agent's Lien
(or as appropriate the Collateral Agent's Lien) on and perfected security
interest in the right, title, estate and interest of the Borrower in and to the
Collateral.
6.15 Property Rights, Utilities, Etc.
(a) All utility services, means of transportation, facilities,
other materials and easements that are necessary for the operation of the
Project, if any (including, without limitation, gas, electrical, water and
sewage services and facilities), are available to the Project.
(b) The Borrower and its Subsidiaries possess all easements
necessary for the Borrower or its Subsidiaries to perform their respective
obligations under all Material Contracts.
6.16 Compliance with Building Codes, Zoning Laws, Etc. The Project has
been constructed and is maintained and operated in compliance with all
applicable zoning, environmental protection, use and building codes, laws,
regulations and ordinances and other Requirements of Law. The Borrower has not
received notice of and has no knowledge, after due inquiry, of any violations of
any laws, ordinances, codes, requirements or orders of any Governmental
Authority or of any other Requirements of Law affecting the Project which are
reasonably likely to have a Material Adverse Effect.
6.17 Principal Place of Business, Etc . As of the date of this
Agreement: (i) the chief executive office of the Borrower and the office where
the Borrower keeps certain of its records concerning the Project and all
contracts relating thereto, is located at 0000 Xxxxxx Xxxx, Xxxxxx, Xxx Xxxx
00000, and (ii) the principal place of business of the Borrower is located at
0000 Xxxxx 00, Xxxxx Xxxxxx, Xxx Xxxx 00000, and the office where the Borrower
keeps all other records concerning the Project and all contracts relating
thereto.
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6.18 Description of Property. The descriptions of the Leased Premises
set forth in Schedule 1 are true and accurate in all respects, and are adequate
descriptions for the purpose of establishing, preserving, protecting and
perfecting the interests and rights, and the priority of the Liens (subject to
certain Permitted Liens as described on Schedule 9(a)), intended to be created
and provided in such property by the Mortgages.
6.19 Sufficiency of Mineral Rights. The mineral rights described on
Schedule 10 hereto constitute a supply of salt reserves sufficient for operation
of the Project at its designed capacity for approximately seventy (70) years
after the Closing Date in accordance with the current practices. No other
mineral rights are required in order for the Borrower to exploit the salt
reserves set forth in Schedule 10 in an economically efficient manner and in
accordance with current practices.
6.20 Sufficiency of Access. The Borrower has adequate ingress and egress
from the Leased Premises for any reasonable purpose in connection with the
operation and maintenance of the Facility.
6.21 Locations of the Leased Premises. The Leased Premises does not lie
within an area identified by the Secretary of Housing and Urban Development as
an area having special flood hazards, except as disclosed on the surveyor's
certificate delivered in connection with the Title Insurance Policy.
6.22 Environmental Matters.
(a) Except as set forth in Schedule 11(a):
(i) no proceeding is pending, no notice,
notification, demand, request for information, citation, summons or order has
been issued, no complaint has been filed, no penalty has been assessed, and no
investigation or review is pending and, to the Borrower's knowledge after due
inquiry, none of the foregoing is threatened by any Governmental Authority or
other Person:
(x) with respect to any violation or alleged
violation of any Environmental Law in connection with the property, operations
or conduct of business of the Borrower or the Project; or
(y) with respect to any failure or alleged
failure under any Governmental Approval relating to Materials of Environmental
Concern or relating to compliance with any Environmental Law required in
connection with the property, operations or conduct of the business of the
Borrower or the Project; or
(z) with respect to any presence,
generation, treatment, storage, discharge, recycling, transportation or disposal
or release, of any Materials of Environmental Concern generated by the
operations of business, or located on, under or at any property of, the Borrower
or the Project, or any allegation or conduct thereon.
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(ii) Materials of Environmental Concern are not
emanating from any property now or previously owned by the Borrower, to the
knowledge of the Borrower, after due inquiry, leased by the Borrower (including
the Project), in either case in such quantities or conditions so as to require
removal or other response or remedial action which has not yet been taken, or
give rise to liability under any applicable Environmental Law; and none of such
properties has been used by the Borrower or any other Person as a dump site or
as a treatment, disposal or storage site (whether permanent or temporary for any
Materials of Environmental Concern:
(iii) there are no underground storage tanks which
have been used to store or have contained any Materials of Environmental
Concern, active or abandoned at any property now or previously owned or leased
by the Borrower (including the Project).
(b) Except as set forth in Schedule 11(b), neither the Borrower
nor any business conducted by it has transported or arranged for the
transportation and/or disposal (directly or indirectly) of any Materials of
Environmental Concern to or at any location which is listed or proposed for
listing under the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 ("CERCLA"), the Comprehensive Environment Response,
Compensation and Liability System ("CERCLIS") or any similar state list or which
is the subject of federal, state or local enforcement actions or other
investigations, nor is any property now or previously owned or leased by the
Borrower (including any portion of Project) listed or proposed for listing on
any such list.
(c) Except as set forth in Schedule 11(c), there are no Liens
with respect to any Environmental Law or any Materials of Environmental Concern,
on any property owned or leased by the Borrower (including any portion of the
Project) and the Borrower has received no written notice of any actions taken by
any Governmental Authority that could subject any of such properties to such
Liens.
(d) None of the matters identified on Schedules 11(a), (b), or
(c), individually or in the aggregate, could reasonably be expected to result in
a Material Adverse Effect.
6.23 Intellectual Property. No licenses, trademarks, patents or
agreements with respect to the usage of technology (other than any thereof which
have been obtained and are in full force and effect and have been collaterally
assigned to the Collateral Agent) are necessary for the ownership, operation and
maintenance of the Project. The Borrower owns, or is licensed to use, all
trademarks, trade names, copyrights, technology, know-how and processes
necessary for the conduct of its business as currently conducted that are
material to the condition (financial or other), business, or operations of the
Borrower (the "Intellectual Property"). No claim has been asserted and is
pending by any Person with respect to the use of any such Intellectual Property
in connection with the Project, or challenging or questioning the validity or
effectiveness of any such Intellectual Property and the Borrower does not know
of any valid basis for any such claim. The use of such Intellectual Property by
the Borrower does not infringe on the rights of any Person.
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6.24 Labor Matters. No labor strike, work stoppage, slowdown, or other
material labor dispute is pending against the Borrower, or, to the knowledge of
the Borrower, after due inquiry, threatened against the Borrower; (ii) there is
no worker's compensation liability, experience or matter that could be
reasonably expected to have a Material Adverse Effect; (iii) to the knowledge of
the Borrower, after due inquiry, there is no threatened or pending liability
against the Company pursuant to the Worker Adjustment Retraining and
Notification Act of 1988, as amended ("WARN"), or any similar state or local
law; (iv) there is no employment-related charge, complaint, grievance,
investigation, unfair labor practice claim, or inquiry of any kind, pending
against the Borrower that could, individually or in the aggregate, have a
Material Adverse Effect; (v) to the knowledge of the Borrower, after due
inquiry, no employee or agent of the Borrower has committed any act or omission
giving rise to liability for any violation identified in subsection (iii) and
(iv) above, other than such acts or omissions that would not, individually or in
the aggregate, have a Material Adverse Effect; and (vi) no term or condition of
employment exists through arbitration awards, settlement agreements, or side
agreements that is contrary to the express terms of any applicable collective
bargaining agreement.
6.25 Subsidiaries. As of the date hereof, the Borrower has no
Subsidiaries and after the date hereof the Borrower shall not have any
Subsidiaries (other than Immaterial Subsidiaries) unless they have complied with
Section 8.20. As of the Closing Date, except as provided herein, there will be
no encumbrances or restrictions on the ability of any Subsidiary of the Borrower
(x) to pay dividends or make other distributions on such Subsidiary's Capital
Stock or to pay any indebtedness to the Borrower or any other Subsidiary of the
Borrower, (y) to make loans or advances or pay any indebtedness to, or
investments in, the Borrower or any other Subsidiary of the Borrower or (z) to
transfer any of its property or assets to the Borrower or any other Subsidiary
of the Borrower.
6.26 Full Disclosure. No representation, warranty or other statement
made by the Borrower in any Credit Document or in any certificate, written
statement or other document furnished to the Agent, the Collateral Agent, any
Lender or the Letters of Credit Issuer by or on behalf of the Borrower pursuant
to or in connection with the Credit Documents contains any untrue statement of a
material fact or omits to state a material fact necessary in order to make the
statements contained herein or therein, in light of the circumstances under
which they were made, not misleading. There is no fact known to the Borrower
whether related to Governmental Approvals, F-K Litigation or otherwise, that has
not been disclosed in writing to the Agent prior to the date of the execution
and delivery of this Agreement that has had a Material Adverse Effect or which
is reasonably likely to have a Material Adverse Effect.
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SECTION 7
CONDITIONS PRECEDENT
7.1 Conditions Precedent to the Initial Closing. The obligation of the
Lenders to make the Revolving Loans, of Standby L/C Issuer to issue Standby L/Cs
and the Surety L/C Issuer to issue the Surety L/C is subject to the satisfaction
of each of the following conditions:
(a) Authorizing Actions. All limited liability company and other
proceedings in connection with the transactions contemplated by this Agreement
and the Credit Documents then contemplated by this Agreement to be in effect,
and all documents and instruments incident thereto, shall be reasonably
satisfactory in form and substance to the Agent and its counsel and the Agent
and its counsel shall have received such counterpart originals or certified or
other copies of all such documents and instruments and of all records and
company proceedings in connection with such transactions, and such incumbency
and signature certificates of officers of the Borrower as the Agent or its
counsel may reasonably request, together with certificates of good standing and
payment of franchise taxes in the State of New York.
(b) Agreement. The Agent shall have received a counterpart of
this Agreement for itself and each other Lender, duly executed and delivered by
the Borrower.
(c) Revolving Loan Notes. Each Lender shall have received
Revolving Loan Notes conforming to the requirements of Section 2.2 and duly
executed and delivered by the Borrower.
(d) Senior Security Documents. The Collateral Agent shall have
received, with a copy for each Lender, each of the Senior Security Documents,
duly executed and delivered by each party thereto.
(e) Perfection of Liens and Security Interests. All filings,
recordings, deliveries of securities and instruments and other actions that are
necessary or desirable in order to establish, protect, preserve and perfect the
Collateral Agent's Lien on and perfected security interest in all right, title,
estate and interest of the Borrower, the XXX and Borrower's members, as the case
may be, in and to all Collateral covered by the Senior Security Documents, prior
and superior to all other Liens (other than Permitted Liens listed on Schedule
9(a)), existing or future, shall have been duly made or taken and all fees,
taxes and other charges relating to such filings and recordings and other
actions shall have been paid by the Borrower or filings for exemptions therefrom
shall have been made.
(f) {Intentionally Deleted}.
(g) {Intentionally Deleted}.
(h) Material Contracts. The Agent shall have received a duly
executed copy of each of the Material Contracts together with related
assignments and consents to assignment to the Agent, each in form and substance
satisfactory to the Agent, certified by the Borrower as
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such on the Closing Date to be true, correct and complete copies thereof and
that such agreements are in full force and effect and no default exists
thereunder.
(i) Land Lease Agreement. The Agent shall have received an
estoppel certificate from the XXX that is in form and substance satisfactory to
the Agent which shall provide, among other things, that the Land Lease Agreement
is in full force and effect and that no defaults or events of default exist
thereunder.
(j) Financial Statements. The Agent shall have received a copy
of Borrower's audited financial statements for the fiscal year ended September
30, 2003, and Borrower's most recent interim financial statements and shall have
reviewed and be satisfied with them.
(k) Projections. The Agent shall have received a copy of the
Initial Projections in form and substance acceptable to the Agent in its sole
discretion, accompanied by a certificate signed by the Responsible Officer of
Borrower as being reasonable projections prepared in good faith based on
assumptions he believes to be reasonable when made and continue to be reasonable
on the date hereof which shall demonstrate to the Agent's satisfaction that
Borrower has adequate working capital and cash flow for the first twelve (12)
months following the Closing Date.
(l) {Intentionally Deleted}
(m) Pro Forma Balance Sheet. The Agent shall have received the
Pro Forma Balance Sheet of Borrower, which shall be certified by a Responsible
Officer to have been prepared in accordance with GAAP (subject to the absence of
footnotes required by GAAP and subject to normal year-end adjustments) and,
subject to stated assumptions made in good faith and having a reasonable basis
set forth therein, presents fairly, in all material respects, the financial
condition of the Borrower on an unaudited pro forma basis as of the date set
forth therein after giving effect to the consummation of the transactions as
described above.
(n) Bonding Company Indemnity. The Agent shall have received a
copy of the Bonding Company Indemnity Agreement and any other agreement entered
into by Borrower with the Bonding Company and shall be satisfied with the terms
and conditions thereof.
(o) Issuance of Bond and Release of F-K Mechanics' Lien.
(i) The Bonding Company shall have issued the Bond
(which shall be in form and substance required by Section 19 of the New York
Lien Law );
(ii) The Borrower shall have filed the Bond with the
Xxxxxxxxxx County Clerk's Office and served a time-stamped copy of the Bond on
F-K in accordance with Section 19 of the New York Lien Law;
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(iii) The X-X Xxxx shall have been discharged in
accordance with Section 19 of the New York Lien Law; and
(iv) The Borrower shall have delivered to the Agent a
certificate executed by a Responsible Officer which shall be in form and
substance satisfactory to Agent that Section 19 of the New York Lien Law has
been fully satisfied and the X-X Xxxx has been discharged in accordance
therewith.
(p) Valuation. The Collateral Agent shall have received a
valuation of the Facility by an independent, qualified party experienced in
valuing properties similar to the Project, indicating a fair market value of not
less than $225,000,000, which valuation shall be satisfactory to the Agent in
all respects. In addition, the Agent shall receive correspondence from the
independent, qualified party who performed the valuation which will indicate
that M&T, as Agent, Collateral Agent and Lender may rely on the findings
outlined in the valuation as though the valuation was originally addressed to
M&T, as Agent, Collateral Agent and Lender.
(q) Solvency. The Agent shall have received a certificate from
Borrower's Responsible Officer concerning the representation and warranty in
Section 6.8(e) which shall be in form and substance satisfactory to Agent in all
respects.
(r) Revolving Credit Commitment Availability. A Borrowing Base
Certificate shall have been delivered by Borrower to Agent together with an
initial Notice of Revolving Loan Borrowing (if a Revolving Borrowing is
requested as of the Closing Date), and upon all Loans requested and required to
be made hereunder and the issuance of all Standby L/Cs required to be issued
hereunder as of the Closing Date, the Revolving Credit Availability shall be no
less than $2,000,000 under the Total Revolving Credit Commitment after giving
effect to the first advance under the Revolving Loan Notes and/or the issuance
of any Standby L/Cs to be issued as of the date of this Agreement.
(s) Senior Second Secured Note Documents. The Agent shall have
received final executed copies of the Senior Second Secured Note Documents which
shall contain such terms and provisions acceptable to the Agent in its sole
discretion, and Borrower shall have received gross proceeds from the issuance
and sale of the Senior Second Secured Notes of not less than $100,000,000.
(t) Intercreditor Agreement. The Intercreditor Agreement shall
have been executed and delivered by the Collateral Agent and the Trustee as the
collateral agent for the holders of the Senior Second Secured Notes, and such
agreement shall be in full force and effect.
(u) NOMIPS Subordination. The NOMIPS Subordination Agreement
shall have been executed and delivered by the NOMI Holders and the Collateral
Agent and such agreement shall be in full force and effect.
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(v) Lien Searches. The Collateral Agent shall have received the
results of a recent search, by a Person reasonably satisfactory to the Agent, of
the Uniform Commercial Code filings and tax and judgment liens which may have
been filed with respect to the property of the Borrower subject to the UCC in
such filing offices as the Agent may request.
(w) Establishment of Sinking Fund Collateral Account. The
Borrower and Collateral Agent shall have established the Sinking Fund Collateral
Account to be maintained with the Collateral Agent.
(x) Confirmation of Pay-Off. The Agent or Collateral Agent shall
have received documents satisfactory to it (i) confirming the payment in full of
all Indebtedness, including the Heleba Debt, under the the Amended and Restated
Loan Agreement (the "Prior Credit Agreement") dated as of September 27, 1999 by
and among the Borrower, the financial institutions from time to time party
thereto, Landesbank Hessen-Thuringen Girozentrale, as administrative agent and
as collateral agent for the senior lenders ("Helaba") and as an issuer of
Letters of Credit under the Prior Credit Agreement, and General Electric Capital
Corporation, as an issuer of Letters of Credit under the Prior Credit Agreement
and as project agent for the subordinated lenders (together with Helaba, the
"Prior Agents"), as amended and modified to the date hererof ("Prior Credit
Documents"), (ii) the assignment of Prior Credit Documents and all UCC-1
financing statements filed by the Prior Agents against Borrower and/or its
assets, all in form and substance satisfactory to the Agent in its sole
discretion, executed by the Prior Agents and the delivery of all Collateral in
possession of the Prior Agents to the Agent or at Agent's election, releasing
and terminating all Liens on any assets of Borrower, including but not limited
to the Collateral.
(y) Creditor-Lessor Agreement. Railcar Amrock Trust,
Transamerica Equipment Financial Service Corporation and the Agent shall have
entered into a Creditor-Lessor Agreement which shall be substantially similar to
the Creditor-Lessor Agreement dated December 11, 2000 among Railcar Amrock
Trust, Transamerica Financial Services Corporation and the Prior Agents.
(z) Title Insurance; Notice. The Collateral Agent has received
policies of title insurance issued by the Title Company, in form and substance
reasonably satisfactory to the Collateral Agent, with such endorsements and
affirmative coverage as the Required Lenders may reasonably request, insuring
the Collateral Agent, for the benefit of the Agent and the other Lenders, in the
amount of $62,140,113.50 and that insures that the Mortgages constitute a valid
mortgage lien on the Site and the access, utility and interconnection easements,
subject only to Permitted Liens. The Collateral Agent shall also have received
evidence that the premium in respect of such policy of title insurance has been
paid.
(aa) Insurance Report. The Agent shall have received a copy of
the binders for, or other evidence satisfactory to the Agent that all insurance
required hereunder to be obtained and maintained (including, without limitation,
comprehensive general liability insurance, auto liability insurance, excess
liability insurance, workers' compensation insurance and business interruption
insurance) is in full force and effect and all premiums with respect to the
required insurance has been paid and certification from the insurer that such
insurance is
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not cancelable without prior notice to the Agent and without an opportunity to
cure such default by the Agent.
(bb) Legal Opinions. The Agent shall have received (i) the
opinion of special counsel to the XXX in form and substance reasonably
satisfactory to the Agent, dated the Closing Date and addressed to the Agent,
the Standby L/C Issuer, the Surety L/C Issuer and the Lenders, (ii) the opinion
of counsel to the Borrower in form and substance reasonably satisfactory to the
Agent, dated the Closing Date and addressed to the Agent, the Standby L/C
Issuer, the Surety L/C Issuer and the Lenders.
(cc) Fees. Payment of all fees, including all up-front fees,
commitment fees and administrative agent fees, expenses and costs required to be
paid by Borrower under any Credit Document.
(dd) Additional Documents. The Agent (or as appropriate the
Collateral Agent) shall have received such other documents and opinions related
to the transactions contemplated hereby as may be reasonably requested by it.
(ee) Additional Matters. All other documents and legal matters
in connection with the transactions contemplated hereby shall be satisfactory in
form and substance to the Agent and counsel to the Agent.
7.2 Conditions to All Revolving Loans and Standby L/Cs. The obligations
of the Lenders to make any Revolving Loan and the obligation of the Standby L/C
Issuer to issue any Standby L/C, are subject to the satisfaction, on the
Borrowing Date with respect to such Revolving Loan or on the date of issuance of
such Standby L/C, of the following conditions precedent:
(a) Borrowing Base Certificate. The Agent shall have received
the Borrowing Base Certificate and each of the Lenders shall have received a
copy thereof sufficiently in advance of the proposed Borrowing, in form and
substance satisfactory to the Agent, pursuant to Section 2.1(b) above, and the
total amount of Revolving Loans to be outstanding and any Standby L/Cs to be
issued after giving effect to such Revolving Loans and/or Standby L/Cs shall be
less than or equal to the Revolving Credit Availability.
(b) Notice of Revolving Loan Borrowing. The Agent shall have
received from the Borrower, a Notice of Revolving Loan Borrowing with respect to
any proposed Revolving Borrowing or a written request in respect of a proposed
Standby L/C.
(c) Representations and Warranties. The representations and
warranties made by the Borrower and the Subsidiaries herein or of the Borrower
or any of its Subsidiaries in any other Credit Document to which it is a party,
or which are contained in any certificate, document, financial or other
statement furnished by the Borrower or any of its Subsidiaries hereunder or
thereunder or in connection herewith or therewith, shall be (i) true and correct
on and as of such Borrowing Date as if made on and as of such date, (ii) except
to the extent that such representations and warranties relate specifically to an
earlier date (in which case such
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representations or warranties shall have been true and correct on and as of such
earlier date), unless the circumstances that made any such representation false
or misleading at the time when made shall no longer be continuing and the
existence of such circumstances has not had a Material Adverse Effect.
(d) No Default, Event of Default or Event of Loss. No Default or
Event of Default shall be in existence on such Borrowing Date and no event shall
exist on such Borrowing Date that, with the giving of notice or the passage of
time, or both, would constitute a Default or Event of Default. Furthermore, no
Default or Event of Default shall occur after giving effect to the Revolving
Loan to be made or the Standby L/C to be issued on such Borrowing Date. No Event
of Loss shall be in existence on such Borrowing Date. Satisfaction of this
condition with respect to any particular Default, Event of Default or Event of
Loss shall not constitute satisfaction of this condition with respect to any
other Default, Event of Default or Event of Loss, including, without limitation,
a subsequent Default, Event of Default or Event of Loss which arises out of
identical or similar circumstances.
(e) No Material Adverse Change. There shall have been no
Material Adverse Change since the Closing Date, and no other event or condition
shall have occurred or existed since the Closing Date and which continues to
exist,which would constitute a Material Adverse Effect.
7.3 Conditions to the Term Loans. The obligations of the Lenders to make
the Term Loans shall be subject to the fulfillment to the satisfaction of the
Agent, unless otherwise specified, of the following conditions on or prior to
the Borrowing Date for the Term Loan:
(a) Notice of Term Loan Borrowing. The Agent shall have received
from the Borrower a Notice of Term Loan Borrowing in respect of the proposed
Term Loans which shall before no more than the Term Loan Availability and shall
contain a certification from a Responsible Officer that each of the
conditions to the Term Loan has been satisfied.
(b) Term Notes. The Agent shall have received on behalf of each
Lender a Term Note, in each case conforming to the requirements hereof and
executed by the Borrower, or if a Term Note has been previously executed, an
acknowledgment from the Borrower regarding the continuing enforceability of the
Term Note and the other Credit Documents, in such form as Agent may require.
(c) Representations and Warranties. The representations and
warranties made by the Borrower and the Subsidiaries herein or of the Borrower
or any of its Subsidiaries in any other Credit Document to which it is a party,
or which are contained in any certificate, document, financial or other
statement furnished by the Borrower or any of its Subsidiaries hereunder or
thereunder or in connection herewith or therewith, shall be (i) true and correct
on and as of the Borrowing Date for the Term Loans, (ii) except to the extent
that such representations and warranties relate solely to an earlier date (in
which case such representations or warranties shall have been true and correct
as of such earlier date), unless the circumstances that made any such
representation false or misleading at the time when made
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shall no longer be continuing and the existence of such circumstances has not
had a Material Adverse Effect.
(d) No Default, Event of Default or Event of Loss. For any Term
Loans other than Term Loans made under Section 3.2(e)(iii), no Default or Event
of Default shall be in existence on such Borrowing Date and no event shall exist
on such Borrowing Date that, with the giving of notice or the passage of time,
or both, would constitute a Default or Event of Default. Furthermore, no Default
or Event of Default shall occur after giving effect to the Term Loans to be made
on such Borrowing Date. No Event of Loss shall be in existence on such Borrowing
Date. Satisfaction of this condition with respect to any particular Default,
Event of Default or Event of Loss shall not constitute satisfaction of this
condition with respect to any other Default, Event of Default or Event of Loss,
including, without limitation, a subsequent Default, Event of Default or Event
of Loss which arises out of identical or similar circumstances.
(e) No Default, Event of Default or Event of Loss. For any
Surety L/C Reimbursement Obligation funded with a Term Loan under Section
3.2(e)(iii), no Event of Default shall be in existence on such Borrowing Date.
Furthermore, no event shall occur after giving effect to the Surety L/C
Reimbursement Obligation or the funding of suchTerm Loan. No Event of Loss shall
be in existence on such Borrowing Date. Satisfaction of this condition with
respect to any particular Event of Default or Event of Loss shall not constitute
satisfaction of this condition with respect to any other Event of Default or
Event of Loss, including, without limitation, a subsequent Event of Default or
Event of Loss which arises out of identical or similar circumstances.
(f) No Material Adverse Change. There shall have been no
Material Adverse Change since the Closing Date, and no other event or condition
shall have occurred or existed since the Closing Date and which continues to
exist, which event or condition would constitute a Material Adverse Effect.
SECTION 8
AFFIRMATIVE COVENANTS
The Borrower agrees that, so long as the Commitments remain in effect,
any Note or Letter of Credit remains outstanding and unpaid or any Credit
Obligations are owing to the Agent, Collateral Agent or any Lender hereunder or
under the Senior Security Documents, the Borrower shall, and shall cause each of
its Subsidiaries to:
8.1 Conduct of Business, Maintenance of Existence, Etc. At all times (a)
engage solely in the purchase, mining, brokerage, bagging, and sale of salt and
related and ancillary business activities, (b) preserve and maintain in full
force and effect its existence as a limited liability company in the case of the
Borrower and as the form of entity that it was formed for each Subsidiary, in
each case under the laws of the jurisdiction of its organization, its
qualification to do business in each jurisdiction in which the conduct of its
business requires such qualification except where the failure to so qualify
could not reasonably be expected to have a Material Adverse Effect, and all of
its rights, privileges and franchises necessary for the
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ownership and operation of the Project, (c) obtain and maintain in full force
and effect all Governmental Approvals and other consents and approvals required
at any time in connection with the construction, ownership, operation or
maintenance of the Project.
8.2 Partnership Tax Status; Corporate Existence, Etc
(a) In the case of the Borrower only, maintain its status as a
partnership for United States federal income tax purposes and no election to the
contrary will be made. In the case of each of the Borrower's Subsidiaries, the
Borrower will cause each of its Subsidiaries to maintain and preserve in full
force and effect its current tax status.
(b) Obtain, maintain and preserve in full force and effect all
other rights, franchises, licenses, permits, certifications, approvals and
authorizations required by Governmental Authorities and necessary to the
ownership, occupation or use of its properties or the conduct of its business,
except to the extent the failure to do so would not be reasonably likely to have
a Material Adverse Effect, and keep all material properties in good working
order and condition (normal wear and tear excepted) and from time to time make
all necessary repairs to and renewals and replacements of such properties,
except to the extent that any of such properties are obsolete or are being
replaced.
8.3 Payment of Obligations and Performance and Modification of
Material Contracts.
(a) Pay, discharge or otherwise satisfy at or before maturity or
before they become delinquent, all of its material Indebtedness and other
material obligations of whatever nature (subject to applicable subordination
provisions); provided, however, if Borrower or any of its Subsidiaries is not
paying and disputing any Indebtedness or obligations, it shall maintain adequate
reserves with respect thereto in accordance with GAAP.
(b) Pay and discharge all taxes, assessments and governmental
charges or levies imposed upon it, upon its income or profits or upon any of its
properties, prior to the date on which penalties would attach thereto, and all
lawful claims that, if unpaid, might become a Lien upon any of the properties of
the Borrower or any of its Subsidiaries; provided, that, if no Event of Default
shall have occurred or be continuing, or if an Event of Default shall have
occurred and be continuing, then, with the prior written consent or the Lenders,
the Borrower may contest in good faith the validity or amount of any such tax,
assessment, charge, levy or claim by proper proceedings timely instituted and
may permit the taxes, assessments, charges, levies or claims so contested to
remain unpaid during the period of contest if: (a) the Borrower diligently
prosecutes such contests, (b) the Borrower sets aside on its books adequate
reserves with respect to the contested items and (c) during the period of such
contest the enforcement of any contested item is effectively stayed. In
addition, Borrower shall promptly pay or cause to be paid any valid, final
judgment enforcing any such tax, assessment, charge, levy or claim and cause the
same to be satisfied of record.
(c) Perform and observe all the terms and provisions of each
Material Contract to be performed or observed by it, maintain each such Material
Contract in full force
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and effect, enforce each such Material Contract in accordance with its terms,
except, in any case, where the failure to do so, either individually or in the
aggregate, could not be reasonably likely to have a Material Adverse Effect.
(d) Notwithstanding anything to the contrary contained in this
Agreement or any of the Credit Documents, the Borrower shall be permitted to
amend and modify the Union Contract without any interference from the Agent
and/or the Lenders.
8.4 Borrower Insurance Coverage. In the case of the Borrower:
(a) Without limiting any of the obligations of the Borrower
under this Agreement, the Borrower shall carry and maintain the following
minimum insurances. Such insurance shall be provided by the insurers, in such
form and amounts, and with such deductibles as are acceptable to the Agent. Each
insurer will be A.M. Best rated A-(X) or higher and any deviation from this
rating must have the prior written approval of the Agent, Collateral Agent and
the Required Lenders.
(i) All Risk Property Insurance. The Borrower shall
maintain all risk property insurance (excluding only the perils excluded as of
the date of this Agreement) covering the Facility, including tunnels, galleries,
shafts and all equipment, whether above ground or below, against direct physical
loss or damage, including but not limited to fire and extended coverage,
collapse, forced abandonment, inundation, earth movement and comprehensive
boiler and machinery coverage including production equipment, in an amount not
less than $100,000,000, with a $60,000,000 sublimit with respect to underground
property. Coverage shall be written on a replacement cost basis and include
costs to reopen the mine. Such insurance policy shall contain an agreed amount
endorsement waiving any coinsurance penalty. During the first year of this
Agreement, ten percent (10%) of the Borrower's all risk property insurance may
be maintained with Commonwealth Insurance Company which is rated A-(VIII).
(ii) Business Interruption. The Borrower shall maintain
business interruption insurance in an amount equal to twelve (12) months
projected debt service payments and other fixed cash expenses of the Project and
shall contain an agreed amount endorsement waiving any coinsurance penalty.
Coverage shall be included for expediting expenses in an amount not less than
$5,000,000. Such insurance shall also cover service interruption. Deductibles
shall not exceed thirty (30) days.
(iii) Commercial General Liability Insurance. The
Borrower shall maintain commercial general liability insurance written on an
occurrence basis in an amount not less than $1,000,000. Such coverage shall
include but not be limited to premises and operations, explosion, collapse and
underground hazards, broad form contractual, independent contractors, products
and completed operations, hostile fire and related pollution, broad form
property and personal injury liability. Such insurance shall not contain an
exclusion for punitive or exemplary damages where insurable under law.
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(iv) Workers' Compensation Insurance. The Borrower
shall maintain workers' compensation for all employees of the Borrower,
insurance written with statutory limits and employer's liability insurance
written in an amount not less than $1,000,000. Such policy shall not contain an
exclusion for occupational disease.
(v) Automobile Liability Insurance. The Borrower
shall maintain automobile liability insurance covering owned, non-owned and
hired vehicles in an amount not less than $1,000,000 combined single limit and
$1,000,000 underinsured/uninsured motorist.
(vi) Excess/Umbrella Liability. The Borrower shall
maintain excess or umbrella liability insurance in an amount not less than
$50,000,000 written on an occurrence basis providing coverage limits in excess
of the insurance limits required under sections (a)(iii), (a)(iv), and (a)(v).
Such insurance shall follow the form of the primary insurances and contain a
drop down provision in case of exhaustion of underlying limits and/or
aggregates. Such insurance shall not contain an exclusion of punitive or
exemplary damages where insurable under law. Such policy shall not contain an
exclusion for occupational disease.
(vii) Pollution Liability. The Borrower shall maintain pollution
liability insurance in an amount not less than $5,000,000 per occurrence and
$5,000,000 in the aggregate.
(b) Endorsements. Policies of insurance carried in accordance
with this Section 8.4 shall be endorsed to provide that:
(i) The Agent, the Collateral Agent and the Lenders
shall be additional named insureds with respect to the insurance provided in
accordance with paragraphs (a)(i), (a)(ii), (a)(iii), (a)(iv), (a)(v) and
(a)(vi) with the understanding that the Agent or the Lenders shall not be
responsible for any of the obligations of Borrower, including, but not limited
to, payment of premiums; and
(ii) in accordance with paragraphs (a)(i) and (a)(ii)
the Collateral Agent shall be the sole loss payee for losses in excess of
$250,000; and
(iii) with respect to insurance provided in accordance
with paragraphs (a)(iii), (a)(iv), (a)(v) and (a)(vi) shall be endorsed to
provide that, inasmuch as the policies are written to cover more than one
insured, all terms, conditions, insuring agreements and endorsements, with the
exception of the limits of liability, shall operate in the same manner as if
there were a separate policy covering each insured; and
(iv) with respect to the insurance provided in
accordance with paragraphs (a)(i) and (a)(ii), the interest of the Agent, the
Collateral Agent and the Lenders shall not be invalidated nor suspended by any
breach of warranty, act, omission, neglect, or non-compliance with any of the
provisions of the insurance polices, including any and all riders and/or
endorsements now or hereafter attached thereto, by the Borrower or any other
person or by the happening of any event permitted by them or which they failed
to prevent or whether
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before or after a loss, which under the provisions of the policy of insurance or
any rider or endorsement attached thereto would invalidate or suspend the
insurance as to the Borrower, and
(v) the insurers waive all rights of subrogation
against the Agent, the Collateral Agent and the Lenders, any right of setoff or
counterclaim and any other right to deduction, whether by attachment or
otherwise; and
(vi) such insurance shall be primary without right of
contribution of any other insurance carried by the Agent, the Collateral Agent
and the Lenders; and
(vii) if such insurance is cancelled for any reason
whatsoever, including non-payment of premium, or any substantial change is made
which affects the interest of the Agent, the Collateral Agent and the Lenders,
such cancellation or change shall not be effective as to the Agent and the
Lenders until thirty (30) days after receipt by the Agent of written notice sent
by registered mail.
(c) Adjustment of Losses. Losses, if any, under any insurance
required to be carried by paragraphs (a)(i) and (a)(ii), shall be adjusted with
the insurance companies or otherwise collected, including the filing of
appropriate proceedings by the Borrower subject to the approval of the Agent.
(d) Report. The Collateral Agent, at its option, may obtain such
insurance as specified by this Section 8.4 if not provided by the Borrower and,
in such event, the Borrower shall reimburse the Collateral Agent upon demand for
the cost thereof. To the extent that the Collateral Agent has placed such
insurance coverage as required to be maintained by the Borrower pursuant to this
Section 8.4 and provided that there are no other existing Defaults or Events of
Default, the Collateral Agent will cancel such insurance coverage upon the
Borrower providing satisfactory evidence that the replacement coverage has
become effective and is in compliance with this Section 8.4. The Borrower shall
also immediately reimburse the Collateral Agent for any additional costs,
including, but not limited to, short rate cancellation penalties, which are
incurred by the Collateral Agent.
8.5 Inspection of Property; Maintenance of Books and Records.
(a) Keep proper books, records and accounts in which full, true
and accurate entries shall be made of all financial transactions and otherwise
shall be complete and maintained in accordance with sound accounting practice.
(b) Permit the Collateral Agent and the Agent and other
consultants engaged by the Collateral Agent or the Agent that have delivered
confidentiality agreements reasonably acceptable to the Borrower and that are
not under the control of or affiliated with any of the Borrower's competitors
(the "Other Consultants") and the Lenders (at such Lender's own expense) to
visit the Project and the other properties of the Borrower or any Subsidiary
during regular business hours after reasonable notice. The Collateral Agent, the
Agent and each Lender each agrees that it will not, in the course of any such
visit, interfere in the operation or maintenance of the Project and the
Collateral Agent and the Agent each agree that it will instruct
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the Other Consultants not so to interfere. The Borrower authorizes the
Collateral Agent, the Agent and each Lender to disclose to any agent or
consultant any and all information in its possession concerning the Project or
the Facility in connection with such agent's or consultant's evaluation of the
Project or visit to the Project.
(c) Permit the Agent, the Collateral Agent and/or their
respective designated representatives to conduct an audit and/or collateral
examination of Borrower's and its Subsidiaries' working papers and the accounts
receivable, inventories and Borrowing Base and an independent appraisal of the
property of the Borrower and its Subsidiaries and to discuss its affairs,
finances and accounts with its officers and employees and, upon notice to the
Borrower, the independent public accountants of the Borrower and its
Subsidiaries (and by this provision the Borrower authorizes such accountants to
discuss the finances and affairs of the Borrower and its Subsidiaries), all at
such times and from time to time, upon reasonable notice and during business
hours, as may be reasonably requested by the Agent. The Borrower hereby agrees
that the audits described in this Section 8.5(c) may, at a minimum, occur on an
annual basis. The Borrower also hereby agrees that the audits described in this
Section 8.5(c) may, at the discretion of the Agent or Required Lenders occur on
a greater frequency (with such frequency to be determined by the Agent or the
Required Lenders not to exceed four times per year). Any such audit or
collateral examination shall be at the Borrower's expense up to a maximum of
$5,000 per audit or collateral examination and capped at $10,000 (in the
aggregate) per year.
8.6 Compliance with Laws. Comply with all Requirements of Law, and from
time to time obtain and comply with all Governmental Approvals as shall now or
hereafter be necessary under all Applicable Laws, in connection with the
ownership, operation or maintenance of the Project or the making and performance
by the Borrower and its Subsidiaries of this Agreement or any Credit Documents
to which it is a party, except where the failure to comply or obtain would not,
as determined by the Agent or the Required Lenders, reasonably be expected to
have a Material Adverse Effect.
8.7 Financial Statements. Furnish or cause to be furnished to each
Lender:
(a) as soon as available, but in any event within ninety (90)
days after the end of each Fiscal Year of the Borrower and its Subsidiaries, a
copy of the consolidated balance sheet of the Borrower as of the end of such
Fiscal Year and the related consolidated and consolidating statements of income,
retained earnings or members' capital and changes in cash flows of the Borrower
and its Subsidiaries for such fiscal year, setting forth in each case in
comparative form the figures for the previous Fiscal Year, certified without
qualification or exception as to the scope of its audit by independent certified
public accountants of national standing reasonably acceptable to the Agent, and
such financial statements shall be satisfactory in scope to the Agent together
with if and when available, copies of all management letters prepared by such
accountants;
(b) as soon as possible after the end of each calendar year, the
Borrower's Tax returns, and such information as may be necessary to establish to
Agent's satisfaction the Borrower's taxable income, gain, deduction or loss for
such calendar year, together with a certificate in such form as may be required
by the Agent setting forth the calculation of the
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Permitted Tax Distribution Annual Allowance based on the taxable income, gain,
deduction and loss for such calendar year signed by a Responsible Officer of
Borrower;
(c) as soon as available, but in any event within forty-five
(45) days after the end of each Fiscal Quarter of the Borrower and its
Subsidiaries, the consolidated and consolidating unaudited balance sheet of the
Borrower and its Subsidiaries as of the end of such quarterly period and the
consolidated and consolidating related unaudited statements of income and
retained earnings (or members' capital) and changes in cash flows of the
Borrower and its Subsidiaries for such quarterly period and for the portion of
the fiscal year then ended, setting forth in each case in comparative form the
cumulative figures for the previous period (previous comparable Fiscal Quarter
and previous comparable fiscal year to date), certified by a Responsible Officer
of the Borrower (subject to normal year-end audit adjustments);
(d) notwithstanding anything in this Section 8.7 to the
contrary, upon reasonable notice, the Borrower and its Subsidiaries shall,
during the business hours of the Facility, allow access to any officer,
employee, attorney or accountant for the Agent to audit, review, make extracts
from and copy any and all financial books and records; and
(e) as soon as available, but in any event within forty-five
(45) days after the end of each Fiscal Quarter of the Borrower and its
Subsidiaries, the consolidating unaudited balance sheet of the Borrower and its
Subsidiaries as of the end of such quarterly period and the consolidating
related unaudited statements of income and retained earnings (or members'
capital) and changes in cash flows of the Borrower and its Subsidiaries for such
quarterly period and for the portion of the fiscal year then ended, setting
forth in each case in comparative form the cumulative figures for the previous
period (previous comparable Fiscal Quarter and previous comparable fiscal year
to date), certified by a Responsible Officer of the Borrower (subject to normal
year-end audit adjustments).
All financial statements shall be prepared in reasonable detail and with
the exception of tax returns required pursuant to Section 8.7(b), in accordance
with GAAP applied consistently throughout the periods reflected therein (except
for changes approved by the Agent or required by the independent certified
public accountants certifying such statements and disclosed therein). In
addition, the Borrower shall authorize its independent certified public
accountants to communicate directly with the Agent and to disclose to the Agent
the Borrower's financial statements and other financial documents including a
copy of the independent certified public accountant's opinion and any management
letters.
8.8 Certificates; Annual Operating Budget, Other Information.
Furnish or cause to be furnished to the Agent and the Lenders:
(a) Unless otherwise required by the Agent on a more frequent
basis in accordance with the terms of this Agreement, no later than twenty (20)
days after the end of each month, a Borrowing Base Certificate and reports of
aged accounts receivable, aged accounts payable and inventory of Borrower and
its Subsidiaries as of the end of the previous month, in a form satisfactory to
Agent.
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(b) The annual financial statements shall be accompanied by a
written report of the Borrower's independent accountants (who shall be a firm of
established national reputation) that in conducting their audit of such
financial statements nothing has come to their attention that would lead them to
believe that the Borrower has violated any provisions hereof insofar as they
relate to accounting matters or, if any such violation has occurred, specifying
the nature and period of existence thereof, it being understood that such
accountants shall not be liable directly or indirectly to any Person for any
failure to obtain knowledge of such violation;
(c) concurrently with the delivery of the financial statements
of the Borrower referred to in Sections 8.7(a) to (c), a certificate of a
Responsible Officer of the Borrower stating that, to the best of such
Responsible Officer's knowledge after due inquiry, the Borrower and its
Subsidiaries during the period covered by such financial statements, have
observed and performed all of its covenants and other agreements hereunder, and
satisfied every condition, contained in this Agreement and the other Credit
Documents to be observed, performed or satisfied by it, and that such
Responsible Officer has obtained no knowledge of any Default or Event of Default
hereunder at any time during such period or on the date of such certificate and
no knowledge of any default or event which with the giving of notice or the
lapse of time or both would constitute a Default or an Event of Default under
any of the other Credit Documents at any time during such period or on the date
of such certificate (or, if any such Default or Event of Default or default or
event shall have occurred, a statement setting forth the nature thereof and the
steps being taken by the Borrower to remedy the same) and setting forth a
detailed calculation of Borrower's compliance with, among other things, the
financial covenants contained in Sections 9.1 through 9.10 (the "Compliance
Certificate") and the amount of the Projected Distributions for compliance
certificates delivered with respect to the Fiscal Quarter ending September 30th,
December 31st and March 31st;
(d) as soon as available, but in any event prior to September
30th of each year an annual operating budget for the Borrower and its
Subsidiaries for the immediately succeeding Fiscal Year, setting forth their
projected operating expenses (including proposed Capital Expenditures) and cash
flow for such Fiscal Year prepared on a consolidated and consolidating basis and
in accordance with GAAP (the "Annual Operating Budget"). Notwithstanding the
foregoing, after the occurrence and during the continuance of a Default or an
Event of Default, the Agent may request a revised Annual Operating Budget and,
within fifteen (15) days after receipt by the Borrower of such request, the
Agent shall have received a revised Annual Operating Budget.
(e) promptly after the filing thereof, the "Annual Returns"
(Form 5500 series) and attachments filed annually with the Internal Revenue
Service with respect to each Single Employer Plan, if any, of the Borrower;
(f) with respect to any Single Employer Plan adopted or amended
by the Borrower on or after the first Borrowing Date, any determination letters
received from the Internal Revenue Service with respect to the qualification of
such Plan, as initially adopted or amended under Section 401 (a) of the Code;
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(g) promptly after delivery or receipt thereof, a copy of each
material notice, demand or other communication delivered or received by the
Borrower pursuant to any Credit Document;
(h) copies of each Governmental Approval or other consent or
approval obtained or made by the Borrower pursuant to this Agreement;
(i) upon request, periodic reports and information with respect
to the F-K Litigation or any related insurance disputes; and
(j) promptly, such additional financial and other information
with respect to the Borrower and its Subsidiaries as the Agent or the Required
Lenders may from time to time reasonably request.
8.9 Taxes. Pay and discharge all taxes, assessments and governmental
charges or levies imposed on the Borrower or any of its Subsidiaries or on any
of their income or profits or on any of their property prior to the date on
which penalties attach thereto, and all lawful claims which, if unpaid, might
become a Lien upon the property of the Borrower or any of its Subsidiaries
provided, that, if no Event of Default shall have occurred and be continuing, or
if an Event of Default shall have occurred and be continuing with the prior
written consent of the Required Lenders, the Borrower may contest in good faith
the validity or amount of any such tax, assessment, charge, levy or claim by
proper proceedings timely instituted, and may permit the taxes, assessments,
charges, levies or claims so contested to remain unpaid during the period of
such contest if: (a) the Borrower diligently prosecutes such contest, (b) the
Borrower sets aside on its books adequate reserves with respect to the contested
items and (c) during the period of such contest the enforcement of any contested
item is effectively stayed. In addition, the Borrower shall promptly pay or
cause to be paid any valid, final judgment enforcing any such tax, assessment,
charge, levy or claim and cause the same to be satisfied of record.
8.10 Maintenance of Property. At its expense, maintain, operate and keep
the Facility in good working order and condition and make all repairs,
replacements and renewals with respect thereto and additions and betterments
thereto which are necessary for the Facility to operate in compliance with the
terms of any applicable agreement affecting it, including, but not limited to,
the Land Lease Agreement, and in a manner consistent with prudent management and
sound business practice (except where any failure would not reasonably be likely
to have a Material Adverse Effect), and in compliance with all Applicable Laws
affecting the Project and Facility (except where any failure would not
reasonably be likely to have a Material Adverse Effect), and to ensure
enforceability of remedies under insurance policies. The Borrower shall, and
shall cause its Subsidiaries to, comply with all manufacturer's warranties and
suggested maintenance procedures in respect of the Facility.
8.11 Notices. Promptly upon obtaining knowledge of any of the following,
give notice to the Agent:
(a) of the occurrence of any Default or Event of Default;
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(b) of any material default or event of default under any
Material Contract;
(c) of any substantial litigation, investigation or proceeding
which may exist at any time between the Borrower and any Governmental
Authority, or any other license or Governmental Approval required for the
ownership or operation of the Project; provided, however, that the Borrower
shall provide the Agent with notice of any action by a Governmental Authority
regarding the mining permits (without regarding to any substantiality of
amounts);
(d) of any litigation or proceeding affecting the Borrower or
any of its Subsidiaries in which the amount involved is $1,000,000 or more or
in which injunctive or similar relief is sought;
(e) of the following events, as soon as possible and in any
event within thirty (30) days after the Borrower knows or has reason to know
thereof (i) the occurrence or expected occurrence of any Reportable Event with
respect to any Plan, or (ii) the institution of proceedings or the taking or
expected taking of any other action by PBGC, the Borrower to terminate,
withdraw or partially withdraw from any Plan, or (iii) the reorganization or
insolvency of any Multiemployer Plan, and, in addition to such notice, deliver
to the Agent whichever of the following may be applicable: (A) a certificate of
a Responsible Officer of the Borrower setting forth details as to such
Reportable Event and the action that the Borrower proposes to take with respect
thereto, together with a copy of any notice of such Reportable Event that may
be required to be filed with PBGC, or (B) any notice delivered by PBGC
evidencing its intent to institute such proceedings or any notice to PBGC that
such Plan is to be terminated, or (C) any notice of the reorganization or
insolvency of a Multiemployer Plan received by the Borrower;
(f) of any loss or damage to the Project or the Collateral in
excess of $250,000;
(g) to the best knowledge of the Borrower, after due inquiry,
of any litigation, investigation or proceeding affecting the Borrower or any of
its Subsidiaries which if adversely determined could reasonably be expected to
have a Material Adverse Effect;
(h) of any litigation or proceeding relating to environmental
matters concerning the Borrower, any of its Subsidiaries or the Project
(including receipt by Borrower of any notice of any pending, threatened, or
contemplated proceeding involving any Environmental Law or any discharge of
Materials of Environmental Concern);
(i) of any material development in the F-K Litigation and any
related insurance disputes;
(j) of any stop-work order issued by a Governmental Authority;
and
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(k) of anything else that could reasonably be expected to
constitute a Material Adverse Effect or that the Borrower's management believes
in good faith is likely to result in a Material Adverse Effect.
Each notice pursuant to this Section shall be accompanied by a statement of a
Responsible Officer of the Borrower setting forth details of the occurrence
referred to therein and stating what action the Borrower proposes to take with
respect thereto. For all purposes of clause (e) of this Section, the Borrower
shall be deemed to have all knowledge or knowledge of all facts attributable to
the administrator of such Plan.
8.12 Maintenance of Liens of the Senior Security Documents; Acquisition
of Mineral Rights; Future Mortgages. As to the Project, promptly upon the
request of the Agent or the Collateral Agent and at the Borrower's expense,
execute and deliver, or cause the execution and delivery of, and thereafter
register, file or record in each appropriate governmental office, any document
or instrument supplemental to or confirmatory of the Senior Security Documents
or otherwise reasonably deemed by the Agent or the Collateral Agent to be
necessary or desirable for the creation, perfection or maintenance of the Liens
and security interests purported to be created by the Senior Security Documents
or to protect the Borrower's title in and to any of the Collateral.
8.13 Employee Plans. For each pension, profit-sharing and stock bonus
Plan adopted by the Borrower that is intended to be a qualified Plan within the
meaning of Section 401(a) of the Code, (a) use its best efforts to seek and
receive determination letters from the Internal Revenue Service to the effect
that such Plan is qualified within the meaning of Section 401(a) of the Code;
and (b) from and after the date of adoption of any pension, profit-sharing and
stock bonus Plan, cause such Plan to be qualified within the meaning of Section
401(a) of the Code and to be administered in all material respects in accordance
with the requirements of ERISA and Section 401(a) of the Code.
8.14 Storage. Cause all materials owned or controlled by or for the
account of the Borrower or any of its Subsidiaries and supplied for, or intended
to be utilized in, the construction, operation or maintenance of the Project but
not affixed to or incorporated into the Project to be suitably stored in
accordance with all applicable Environmental Laws with adequate safeguards to
prevent loss, theft, damage or commingling with other materials.
8.15 Environmental Matters.
(a) Provide such information as is reasonably requested by the
Agent or the Collateral Agent about all Materials of Environmental Concern and
the presence, storage, handling or disposal thereof which may exist at or which
are involved in the Project. The Agent and the Collateral Agent shall have the
right, but shall not have any duty, to obtain such information.
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(b) In connection with environmental issues, retain only those
third-party independent contractors who are properly licensed by each applicable
Governmental Authority and any other applicable licensing authority to provide
the services they are retained to perform.
(c) Comply in all material respects with all applicable
Environmental Laws ; provided, that, upon learning of any actual or suspected
noncompliance, Borrower shall promptly undertake all reasonable efforts to
achieve full compliance.
(d) Have on record a program to promote compliance with, and to
minimize prudently any liabilities or potential liabilities under, any
Environmental Law to the extent required by any of the permits and in accordance
with, but not limited to, the best management practices announced by the Salt
Institute from time to time (the "Environmental Program"). Upon the Agent's
request, a reasonably detailed written description of the Environmental Program
shall be provided to the Agent. The Agent shall have the right, but shall not
have any duty, to obtain any such description at any time.
(e) Defend, indemnify and hold harmless the Agent, the
Collateral Agent and the Lenders, and their respective employees, agents,
officers and directors (each an "Indemnitee" and collectively, the
"Indemnitees"), from and against any claims, demands, penalties, fines,
liabilities, settlements, damages, costs and expenses of whatever kind or nature
known or unknown, contingent or otherwise, arising out of, or in any way
relating to the violation of, noncompliance with or liability under any
Environmental Laws with respect to the operations of the Borrower, or to the
Project, including, without limitation, reasonable attorney's and consultant's
fees, investigation and laboratory fees, environmental audits, response costs,
court costs and litigation expenses, except to the extent that any of the
foregoing arise out of the gross negligence or willful misconduct of the party
seeking indemnification therefor. Without limiting the foregoing, and to the
extent permitted by applicable law, the Borrower agrees not to assert, and
hereby waives, all rights for contribution or any other rights of recovery with
respect to all claims, demands, penalties, fines, liabilities, settlements,
damages, costs and expenses of whatever kind or nature arising out of, or in any
way relating to the operations of the Borrower, or the Project, under or related
to Environmental Laws, that it now or hereafter may have by statute or otherwise
against any Indemnitee. This indemnity shall continue in full force and effect
regardless of the termination of this Agreement and the payment of the Notes and
all other amounts payable hereunder.
(f) (i) Prior to acquiring any fee interest in real property
other than mineral rights, as reported in accordance with Section 8.21, obtain a
written report by a reputable independent environmental consulting firm
reasonably acceptable to the Agent (the "Environmental Consultant") of the
Environmental Consultant's assessment of the presence or potential presence of
significant levels of any Materials of Environmental Concern on, under, in, or
about the property, or of other conditions that could give rise to potentially
significant liability under or violations of Environmental Law relating to such
acquisition; and (ii) upon the request of the Agent or Collateral Agent, provide
the Agent or Collateral Agent with a copy of such report certified to the Agent
on behalf of the Lenders. The Agent or Collateral Agent shall have the right,
but shall not have any duty, to obtain any such report at any time.
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(g) Permit the Agent or Collateral Agent to have a supplemental
Environmental Assessment of the Facility conducted periodically at the
Borrower's expense; provided, that such supplemental Environmental Assessment is
not conducted more than once every other year, unless, following review of the
Borrower's environmental monitoring reports and any supplemental Environmental
Assessment, the Agent or Collateral Agent has a reasonable basis to believe that
a problem has been identified and that appropriate measures are not being taken
to correct such problem. The Agent or Collateral Agent shall have the right, but
shall not have any duty, to have such supplemental Environmental Assessment
conducted.
8.16 Use of Proceeds. Use the proceeds of the Loans for the purposes
set forth in Sections 2.6 and 4.5.
8.17 Syndication Efforts. The Borrower and its Subsidiaries will use
their best efforts to cooperate with the Arranger who has syndicated the credit
facilities pursuant to this Agreement, including, but not limited to,
participation of the Borrower's management in meetings and telephonic
conferences with participants as the Arranger shall reasonably request. In
addition, the Borrower and its Subsidiaries will use their best efforts to
cooperate with the Arranger in future syndication efforts with respect to the
possible extension of the Total Revolving Credit Commitment as described in
Section 2.8.
8.18 Obligations under the Consents to Assignment. The Borrower agrees
that neither the Agent nor any Lender shall have any obligation for the
performance of any obligation of the Borrower under the Consents to Assignment
unless and until the Agent shall have notified the Borrower in writing that it
intends to assume the obligations imposed on the Borrower under such Consents to
Assignment and receive the benefits thereunder.
8.19 Operating Accounts. The Borrower will make all reasonable efforts
to maintain all of its operating accounts with the Agent. To the extent that any
operating accounts are not maintained with the Agent, such operating accounts
must be maintained with one of the other Lenders. Moreover, prior to the
transfer of any operating account from the Agent to one of the other Lenders,
the Borrower, Agent and applicable Lender shall execute a control agreement, in
form and substance acceptable to the Collateral Agent in its sole discretion,
for the purpose of perfecting a security interest in the applicable operating
account. Moreover, in the event that M&T ceases to operate as both the Agent and
the Collateral Agent under the terms of this Agreement, all control agreements
deemed necessary by the Agent and/or the Collateral Agent will be executed prior
to the any such change.
8.20 Future Subsidiaries. Within ten (10) days after the formation or
acquisition of any new direct or indirect Subsidiary other
than the Immaterial Subsidiaries by the Borrower or any of its Subsidiaries, the
Borrower shall:
(a) cause each such Domestic Subsidiary, to duly execute and
deliver to the Collateral Agent a guaranty in form and substance satisfactory to
the Collateral Agent, guaranteeing repayment of the Credit Obligations;
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(b) take and cause each Domestic Subsidiary to duly execute and
deliver, and cause each such Subsidiary and each direct and indirect parent of
such Subsidiary (if it has not already done so) to duly execute and deliver, to
the Collateral Agent pledges, assignments, security agreement supplements and
other security agreements, as specified by and in form and substance
satisfactory to the Collateral Agent, securing payment of all of the Credit
Obligations, such Domestic Subsidiary or such parent, as the case may be, and
creating Liens on all such personal property;
(c) take, and cause such Subsidiary or such parent to take,
whatever action (including, without limitation, the filing of Uniform Commercial
Code financing statements) may be necessary or advisable in the opinion of the
Collateral Agent to vest in the Collateral Agent (or in any representative of
the Collateral Agent designated by it) valid and subsisting Liens on and
security interests in the personal property purported to be subject to the
pledges, assignments, security agreement supplements and security agreements
delivered pursuant to this Section 8.20 enforceable against all third parties in
accordance with their terms;
(d) pledge to Collateral Agent, or cause the Subsidiary holding
such new Foreign Subsidiary's Capital Stock to pledge to the Collateral Agent,
66 2/3% of the outstanding Capital Stock of each such new Foreign Subsidiary
along with undated stock powers for such certificates, executed in blank (or if
any such shares of capital stock are uncertificated, confirmation and evidence
reasonably satisfactory to Collateral Agent that the security interest in such
uncertificated securities has been transferred to and perfected by the
Collateral Agent), for the benefit of the Lenders, in accordance with the
applicable Sections under Articles 8 and 9 of the UCC or any other Applicable
Laws.
(e) deliver to the Collateral Agent, upon the request of the
Collateral Agent, a signed copy of a favorable opinion, addressed to the
Collateral Agent and the Lenders, of counsel for the Borrower acceptable to the
Collateral Agent: (i) as to the matters contained in clauses (a) through (d)
above, as to such guarantees, pledges, assignments, security agreement
supplements and security agreements being legal, valid and binding obligations
of the Subsidiary which is a party thereto enforceable in accordance with their
terms, (ii) as to the matters contained in clause (c) above, as to such
recordings, filings, and other actions being sufficient to create valid
perfected Liens on such properties, and (iii) as to such other matters as the
Agent or the Collateral Agent may reasonably request;
(f) at any time and from time to time, promptly execute and
deliver any and all further instruments and documents and take all such other
action as the Agent or the Collateral Agent may deem necessary or desirable in
obtaining the full benefits of, or in perfecting and preserving the Liens of,
such guarantees, pledges, assignments, security agreement supplements and
security agreements; and
(g) each of the Subsidiaries shall make all representations and
warranties under Section 6 as deemed appropriate by the Agent.
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8.21 Real Estate Acquisitions. Within thirty (30) days after the end of
any Fiscal Quarter in which the Borrower has acquired any interests in real
property having an aggregate purchase price or fair market value in excess of
$500,000, or when aggregated with previous calendar quarters now exceeds
$500,000, the Borrower shall advise the Agent as to such additional interests in
real property it has acquired, and shall execute, acknowledge and deliver such
other mortgages, instruments and agreements reasonably necessary or desirable by
the Agent and/or the Collateral Agent to include such new acquired real property
interest as part of the Collateral. Upon the execution of mortgages, instruments
and agreements as contemplated in the preceding sentence, the Borrower shall
then begin to aggregate all thereafter acquired interests in real property until
such time as the aggregate purchase price or fair market value of such
thereafter acquired interests exceeds $500,000, at which time it will advise the
Agent of such thereafter acquired interests and again execute, acknowledge and
deliver such other mortgages, instruments and agreements reasonably necessary or
desirable by the Agent and/or the Collateral Agent.
SECTION 9
NEGATIVE COVENANTS
The Borrower agrees that, so long as the Commitments remain in effect,
any Note or Letter of Credit remains outstanding and unpaid or any Credit
Obligations are owing to the Agent, the Collateral Agent or any Lender hereunder
or under the Senior Security Documents, the Borrower and its Subsidiaries (on a
consolidated basis) shall not:
9.1 Working Capital . Have at any time Working Capital of less than
$3,500,000.
9.2 Leverage Ratio. Have as of the last day of any Fiscal Quarter a
Leverage Ratio of more than 2.75 to 1.00.
9.3 Fixed Charge Coverage Ratio. Have as of the last day of any
Fiscal Quarter a Fixed Charge Coverage Ratio of less than 1.10 to 1.00.
9.4 Adjusted EBITDA. Have as of the last day of any Fiscal Quarter
Adjusted EBITDA of less than $18,000,000 for the four (4) previous Fiscal
Quarters ending on such date.
9.5 Investments. Make any Investments other than Permitted
Investments.
9.6 Merger, Sale of Assets, Purchases, Etc.
(a) Except as provided in Section 9.6(b), merge into or
consolidate with any other Person, change its form of organization or its
business, or liquidate or dissolve itself (or suffer any liquidation or
dissolution), or sell, lease, transfer or otherwise dispose of any assets other
than (i) sales of salt in the ordinary course of business and (ii) sales of
those assets disposed of in the ordinary course of business and not in excess of
$2,000,000 in the aggregate in any year.
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(b) Any Subsidiary of the Borrower may be merged or consolidated
with or into the Borrower (provided that the Borrower shall be the continuing or
surviving corporation) or with or into any wholly-owned Subsidiary that is a
Guarantor (provided that the wholly-owned Subsidiary that is a Guarantor shall
be the continuing or surviving corporation).
9.7 Indebtedness. Create, incur, assume or suffer to exist any
Indebtedness, except Permitted Indebtedness.
9.8 Liens. Create or suffer to exist any Lien on any of its properties
or assets securing any Indebtedness or other obligation of the Borrower or any
of its Subsidiaries other than Permitted Liens. In addition, the Borrower and it
Subsidiaries shall at all times protect and defend its interests in and the
Collateral Agent's Liens on the Collateral and the Borrower will pay or cause to
be paid promptly any valid, final and non-appealable judgment enforcing any Lien
(other than Permitted Liens), cause the Lien (other than Permitted Liens)
relating thereto to be removed and otherwise cause such Lien (other than
Permitted Liens) to be satisfied of record.
9.9 Restricted Payments. Declare or make, or agree to pay or make,
directly or indirectly, any Restricted Payments except that so long as no
Default or Event of Default exists and is continuing and no Default or Event of
Default would be created as a result of the following, Borrower may declare and
pay:
(a) Permitted Extraordinary Distributions, provided it is paid
within thirty (30) Business Days after the later to occur of: (i) the receipt of
the proceeds funding such distribution, or (ii) if a Default or Event of Default
exists at the time Borrower receives such proceeds, then within five (5)
Business Days after such Event of Default (or the Event of Default occuring as a
result of the Default existing at the time the proceeds are available) is cured
or waived by the Agent: and
(b) During the period from September 30th of each year until
April 30th of the following year, distributions to its members to the extent
they are Projected Distributions at the time of payment, provided that such
distributions may only be paid (i) after Excess Cash Flow Payments due with
respect to the Fiscal Year ended as of such September 30th have been paid, and
(ii) if the Borrower would have been in compliance with the covenants contained
in Sections 9.1 through 9.13 as of the last day of the Fiscal Quarter
immediately preceding the date on which the distributions are actually paid,
provided, however, if the Borrower is, after the last day of the Fiscal Quarter,
in compliance with any of the covenants contained in Sections 9.5 through 9.13
and continues to be in compliance with covenants on the proposed date of
payments then the applicable Restricted Payments will be permitted under the
terms of this Section 9.9(b)(ii).
Provided in either case at least five (5) Business Days prior to making the
distribution, the Borrower delivers to Agent a certificate executed by a
Responsible Officer stating that Borrower intends to make a distribution,
whether the distribution is permitted under Section 9.9(a) or (b), the amount
thereof, the date on which it will be declared and paid, that no Default
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or Event of Default exists and none will be created thereby and otherwise be in
form acceptable to the Agent.
9.10 Capital Expenditures. Directly or indirectly, make or commit to
make any Capital Expenditure, net (without duplication) of value trade-ins of
equipment and any insurance proceeds resulting from the damage of capital assets
received, of more than $5,000,000 in any Fiscal Year.
9.11 Nature of Business. Engage in any business other than the purchase,
mining, bagging, brokerage and sale of salt and related and ancillary business
activities.
9.12 Amendment of Contracts, Etc. Without the prior written consent of
the Required Lenders, agree to or permit (a) the amendment, supplement,
modification, cancellation, suspension or termination of any Material Contract
(except upon the expiration of the stated term thererof), or (b) the assignment
of the rights or obligations of any party to any Material Contract, as the case
may be, except (i) as contemplated by this Agreement or the Senior Security
Documents or (ii) as permitted without the consent of the Borrower by the terms
of such Material Contract.
9.13 Leases. Enter into, or be or become liable under, any
non-cancelable agreement (defined as any leases other than those leases which
are cancelable without penalty) for the lease or use for more than twelve (12)
months of any real property or of any personal property except for the Land
Lease Agreement and other leases of real or personal property which are not
Capital Leases, and only to the extent that the aggregate annual rental under
all leases described above, shall not exceed $7,500,000 in any Fiscal Year of
the Borrower through and until the Fiscal Year ending September 30, 2009, and
$10,000,000 in any Fiscal Year of the Borrower thereafter.
9.14 Change of Office. Change the location of its chief executive office
or principal place of business or the office where it keeps its records
concerning the Project and all contracts relating thereto from that existing on
the date of this Agreement and specified in Sections 6.17, unless the Borrower
shall have given the Agent and the Collateral Agent at least thirty (30) days
prior written notice thereof and all action requested by the Agent and the
Collateral Agent necessary or advisable in the Agent's and the Collateral
Agent's opinion to protect and perfect the Liens and security interests with
respect to the right, title, estate and interest of the Borrower in and to the
Collateral created by the Senior Security Documents to which the Borrower or any
Subsidiary is a party shall have been taken.
9.15 Change of Name. Change its name except on sixty (60) days prior
written notice to the Agent and the Collateral Agent.
9.16 Compliance with ERISA. (a) Terminate any Single Employer Plan so as
to result in any material liability to PBGC, (b) engage in or permit any
Affiliate to engage in any "prohibited transaction" (as defined in Section 406
of ERISA or Section 4975 of the Code) involving any Plan which would subject the
Borrower to any material tax, penalty or other liability, (c) incur or suffer to
exist any material "accumulated funding deficiency" (as defined
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in Section 302 of ERISA), whether or not waived, involving any Plan subject to
Section 412 of the Code or Part 3 of Title I(b) of ERISA, (d) allow or permit to
exist any event (including a Reportable Event) or condition which represents a
material risk of incurring a material liability to PBGC, or (e) permit the
present value of all benefits vested under all Single Employer Plans subject to
Title IV of ERISA, based on those assumptions used to fund the Plans, as of any
valuation date with respect to such Plans to exceed the value of the assets of
the Plans allocable to such benefits.
9.17 Transactions with Affiliates and Others. Directly or indirectly,
purchase, acquire, exchange or lease any property from, or sell, transfer or
lease any property to, or borrow any money from, enter into loans with, enter
into any management or similar fee arrangement with, or engage in any business
operation with, any Affiliate of the Borrower or any Subsidiary or any officer,
director, employee of the Borrower or any Subsidiary of the Borrower except for
(a) transactions in the ordinary course of business and upon fair and reasonable
terms no less favorable than the Borrower could obtain, or could become entitled
to, in an arm's length transaction with a Person which is not an Affiliate of
the Borrower, (b) loans to employees in connection with employee relocations or
long-term incentive plans for operating employees, and (c) payments made in the
ordinary course of business and upon fair and reasonable terms to managers
serving on the executive committee; provided, that no payments shall be made to
any of the Borrower's Affiliates so long as an Event of Default has occurred and
is continuing except for payments made to the Borrower's counsel, Xxxxx &
Company and Xxxxxx Xxxxx (in his capacity as manager of the Facility only) in
connection with transactions in the ordinary course of business and upon fair
and reasonable terms no less favorable than the Borrower could obtain, or could
become entitled to, in an arm's length transaction with a Person which is not an
Affiliate of the Borrower.
9.18 Alteration or Abandonment of the Project. (a) Alter, remodel, add
to, reconstruct, improve or demolish any part of the Project or any other
Collateral covered by the Senior Security Documents in any manner that would
reasonably be expected to materially impair the value of the security provided
by the Credit Documents, or (b) abandon the Project.
9.19 Optional Payments and Modifications of Senior Second Secured Notes.
Except for regularly scheduled interest payments and any additional interest to
the extent required under the registration rights agreement delivered in
connection with the Indenture: (a) Make or offer to make any optional, mandatory
or voluntary payment, prepayment, repurchase or redemption of or otherwise
optionally or voluntarily defease or segregate funds with respect to the Senior
Second Secured Notes, (b) amend, modify, waive or otherwise change, or consent
or agree to any amendment, modification, waiver or other change to, any of the
terms of the Senior Second Secured Notes or the Senior Second Secured Notes
Indenture (other than any such amendment, modification, waiver or other change
that (i) would extend the maturity or reduce the amount of any payment of
principal thereof or reduce the rate or extend any date for payment of interest
thereon and (ii) does not involve the payment of a consent fee).
9.20 Materials of Environmental Concern. Cause or permit the
location, production, treatment, storage, transportation, incorporation,
discharge, emission, released deposit or disposal of any Materials of
Environmental Concern in, upon, under, over or from any, part of
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the Project except in compliance in all material respects with all applicable
Environmental Laws; provided, that, upon learning of any actual or suspected
noncompliance, Borrower shall promptly undertake all reasonable efforts to
achieve full compliance.
9.21 Fiscal Year. Change the Fiscal Year of the Borrower or any of its
Subsidiaries.
9.22 New Members. The Borrower shall not admit any new members unless
they become a party to the Limited Liabiltiy Company Pledge Agreement and take
the actions necessary to grant to the Agent a first priority security interest
in his membership interest and other collateral described therein and if the
member will become a NOMI Holder, such Person shall have executed a NOMIPS
Subordination Agreement in favor of the Collateral Agent.
9.23 Salt Depot Agreements. Neither the Borrower nor its Subsidiaries
shall enter into any new Salt Depot Agreement unless it is in form and substance
reasonably satisfactory to the Agent or consistent with the historical practices
of the Borrower, including but not limited to the inclusion of express
provisions for the rights of Lenders similar to the provisions currently in use
under the majority of the Salt Depot Agreements in effect as of the date of this
Agreement, and provide for the assignment thereof to Agent and Borrower does
assign such agreement and all of its rights thereunder to Agent.
SECTION 10
EVENTS OF DEFAULT
10.1 Events of Default.
(a) If any of the circumstances listed below in Section 10(b)
shall occur and be continuing, the Agent may declare an Event of Default and may
(and upon the written request of the Required Lenders, shall), do any one or
more of the following: (i) by notice to the Borrower, declare the Commitments to
be terminated, whereupon the same shall forthwith terminate; and/or (ii) declare
the entire unpaid principal amount of the Loans and the then outstanding Notes,
all interest accrued and unpaid thereon, and all other Credit Obligations
(including, without limitation, upon notice from the Standby L/C Issuer,
obligations in respect of the Standby L/Cs and from the Surety L/C Issuer's
obligations of the Surety L/C, although contingent and unmatured) to be
forthwith due and payable, whereupon such amounts shall become and be forthwith
due and payable, without presentment, demand, protest, or notice of any kind,
all of which are hereby expressly waived by the Borrower; (iii) demand that the
Borrower discharge any or all the obligations supported by the Standby L/Cs by
paying or prepaying any amount due or to become due by the Borrower to the
beneficiaries of such Standby L/Cs, together with the payment of all applicable
Standby L/C Fees in the appropriate amount for the respective remaining terms of
the applicable Standby L/Cs until their respective stated expirations, together
with all other fees the Standby L/C Issuer deems appropriate; (iv) demand that
the Borrower immediately deliver to the Collateral Agent for deposit into the
Sinking Fund Collateral Account immediately available cash in the Stated Amount
of the Surety L/C less the then current Sinking Fund Collateral Account Value
together with the payment of the Surety L/C Fee in the appropriate amount for
the remaining term of the Surety L/C until its stated expiration date and any
other fees reasonably deemed appropriate by the
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Surety L/C Issuer. To the extent that the balance of the Sinking Fund Collateral
Account is insufficient to repay the Surety L/C Reimbursement Obligation in
full, then the Borrower shall pay to the Surety L/C Issuer immediately and
unconditionally, an amount equal to the unreimbursed portion of such drawing;
(v) foreclose on any or all of the Collateral; and/or (vi) proceed to enforce
all other remedies available to it under applicable law. Notwithstanding the
foregoing, if an Event of Default referred to in paragraphs (viii) and (ix)
below shall occur, automatically and without notice the actions described in
clauses (i) and (ii) of this Section 10.1 (a) shall be deemed to have occurred.
All payments under this Section 10 on account of the Standby L/Cs shall be made
by the Borrower directly to a cash collateral account established by the Agent
for such purpose for application to: (1) the Borrower's Standby L/C
Reimbursement Obligations as drafts are presented under the Standby L/Cs, and
(2) the payment of all applicable Standby L/C Fees in the appropriate amount for
the respective remaining terms of the applicable Standby L/Cs until their
respective stated expirations, together with all other fees the Standby L/C
Issuer deems appropriate, with the balance, if any, to be applied to the
Borrower's obligations under this Agreement, the Notes and the other Credit
Documents as the Agent shall determine with the approval of the Required
Lenders. The Collateral Agent shall be authorized to release from the cash
collateral account described in the preceding sentence, for its account and the
Standby L/C Participants all other fees (including but not limited to any
Standby L/C Fees) the Standby L/C Issuer deems appropriate.
(b) The following shall constitute Events of Defaults hereunder:
(i) Any principal on any Credit Obligations or any
required payments to be made to the Agent for deposit into the Sinking Fund
Collateral Account pursuant to various sections of this Agreement, shall not be
paid when due and payable; or any interest on any Credit Obligations or any fee
or any other amount payable to Agent, the Collateral Agent or any Lender
hereunder or under any other Credit Documents shall not be paid when due; or
(ii) Any representation or warranty made by the
Borrower or any of its Subsidiaries in any Credit Document to which the Borrower
or any of its Subsidiaries is a party, or any representation, warranty or
statement in any certificate, financial statement or other document furnished to
the Agent by or on behalf of the Borrower or any of its Subsidiaries, shall
prove to have been false or misleading in any material respect as of the time
made or deemed made unless the circumstances that made any such representation
false or misleading at the time when made shall no longer be continuing; or
(iii) (A) The Borrower or any of its Subsidiaries
shall fail to perform or observe any of its covenants contained in Sections 8.1,
8.2, 8.3, 8.6, 9.12, 9.14 and 9.15 (and with respect to the corporate existence
of any Subsidiary Section 8.20), and such failure shall continue unremedied or
unwaived for any period of thirty (30) days, (B) the Borrower or any of its
Subsidiaries shall fail to perform any of its covenants contained in Sections
8.5, 8.7, 8.8 (excluding the Borrowing Base Certificate described in 8.8(a)),
8.10 and 8.14, and such failure shall continue unremedied or unwaived for any
period of ten (10) days, (C) Borrower shall fail to perform or observe any other
of its covenants contained in this Agreement, (D) the Borrower, XXX, any member
of the Borrower holding ten percent (10%) of the Capital Stock of
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the Borrower who is a party to the Limited Liability Company Agreement or any
NOMI Holder holding at least ten percent (10%) of the NOMIPS who is a party to
the NOMIPS Subordination Agreement or the other Credit Documents (other than the
covenants and obligations referred to in paragraph (A) or above of this clause)
shall fail to perform or observe any covenants contained in the applicable
Credit Documents to which they are a party, and such failure shall continue
unremedied or unwaived until the end of the applicable grace period), or (E) an
event of default (however defined) shall occur under any Credit Document; or
(iv) The Borrower shall fail to perform or observe
any of its covenants or obligations (other than the covenants and obligations
referred to in paragraphs (i), (ii) and (iii) above) contained in the Land Lease
Agreement and such failure shall continue unremedied or unwaived until the
earlier of (A) the end of the applicable grace period, if any, contained in such
agreement and (B) thirty (30) days after notice thereof by the Agent to the
Borrower;
(v) Except as provided in Section 10(b)(vii) below,
the Borrower shall (A) default in any payment of principal of or interest on any
Indebtedness (other than the Notes), the principal amount of which exceeds
$750,000 (other than payments in respect of operating leases relating to
railcars, the aggregate amount of which payments do not exceed $2,500,000), for
a period in excess of the lesser of twenty (20) days or the period of grace, if
any, provided in the instrument and agreement under which such Indebtedness was
created; or (B) default in the observance or performance of any other agreement
or condition relating to any such Indebtedness or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event shall
occur or condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or holders of such Indebtedness
(or a trustee or agent on behalf of such holder or holders) to cause, such
Indebtedness to become due prior `to its stated maturity or to realize upon any
collateral given as security therefor;
(vi) Any Change of Control or a "Change of Control"
as such term is alternatively defined in the Senior Secured Note Documents shall
occur;
(vii) a default or event of default (however defined)
shall occur under any of the Senior Second Secured Note Documents or an
acceleration under the Senior Second Secured Notes or pursuant to the terms of
the Senior Second Secured Note Documents occurs (and with respect to any default
or event of default, such default or event of default shall not have been cured
or waived within any applicable grace or cure period);
(viii) Borrower: (A) generally does not pay, or shall
be unable to pay, or shall admit in writing its inability to pay its debts as
such debts become due; or (b) shall make an assignment for the benefit of
Creditors, or petition or apply to any tribunal for the appointment of a
custodian, receiver or trustee for it or a substantial part of its assets; or
(C) shall commence any proceeding under any bankruptcy, reorganization,
arrangement, readjustment of debt, dissolution, or liquidation law or statute of
any jurisdiction, whether now or hereafter in effect;
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(ix) A proceeding or case shall be commenced without
the application or consent of Borrower or any Subsidiary in any court of
competent jurisdiction, seeking (A) its liquidation, reorganization,
dissolution, winding-up, or the composition or readjustment of debts, (B) the
appointment of a trustee, receiver, custodian, liquidator or the like of the
Borrower or any Subsidiary under any law relating to bankruptcy, insolvency,
reorganization, winding-up, or composition or adjustment of debts or (C) a
warrant of attachment, execution or similar process against all or a substantial
part of the assets of the Borrower or any of its Subsidiaries, and such
proceeding or case shall continue undismissed, or any order, judgment or decree
approving or ordering any of the foregoing shall be entered and continue
unstayed and in effect, for a period of sixty (60) or more days, or any order
for relief against the Borrower or any of its Subsidiaries shall be entered in
an involuntary case under the Bankruptcy Code;
(x) A judgment or judgments for the payment of money
in excess of $500,000 shall be rendered against the Borrower or any of its
Subsidiaries and such judgment or judgments shall remain in effect and unstayed
and unbonded and unsatisfied for a period of thirty (30) or more consecutive
days;
(xi) (A) Any provision of any Material Contract shall
at any time for any reason cease to be valid and binding or in full force and
effect or Borrower or any of its Subsidiaries is in material breach thereof or
any party thereto shall assert either of the foregoing circumstances exist in
writing and the effect thereof shall, in the reasonable judgment of the Agent,
be a Material Adverse Effect; or (B) any provision of this Agreement, any other
Credit Document or any Material Contract shall be declared to be null and void
or the validity or enforceability thereof shall be contested by any party
thereto; or
(xii) Any Senior Security Document at any time for any
reason shall cease to be in full force and effect in all material respects, or
ceases to give the Collateral Agent the Liens, rights, powers and privileges
purported to be created thereby, superior to and prior to the rights of all
third Persons and subject to no other Liens except as expressly permitted by the
applicable Senior Security Document or the Borrower, any Subsidiary, or any of
the Permitted Holders contest in any manner the effectiveness, validity, binding
nature or enforceability of any Senior Security Document;
(xiii) (A) Any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of the Code)
involving any Plan, (B) any "accumulated funding deficiency" (as defined in
Section 302 of ERISA), whether or not waived, shall exist with respect to any
Plan, or (C) 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
institution of proceedings is, in the reasonable opinion of the Agent, likely to
result in the termination of such Plan for purposes of Title IV of ERISA, or (D)
any Single Employer Plan shall terminate for purposes of Title IV of ERISA, or
(E) the Borrower shall, or is, in the reasonable opinion of the Agent, likely to
incur any liability in connection with a withdrawal from, or the insolvency or
reorganization of, a Multiemployer Plan, or (F) any other event or condition
shall occur or exist with respect to a Plan; and in each case in clauses (A)
through (E) above, such event or condition, together with all other such events
or conditions, if any, could subject the Borrower
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to any tax, penalty or other liabilities in the aggregate material in relation
to the business, operations, property or financial or other condition of the
Borrower;
(xiv) An Event of Loss shall have occurred; or
(xv) The DEC Permits or any other Governmental Approval
that materially affects the Project shall be revoked, terminated, withdrawn,
suspended, modified or withheld or shall cease to be in full force and effect,
and such revocation, termination, withdrawal, suspension, modification,
withholding or cessation.
10.2 Remedies. If any Event of Default shall have occurred and be
continuing, the Agent and/or the Collateral Agent, in addition to any other
remedies which it may have under this Agreement or any Senior Security Document
or by statute or by rule of law, may exercise the rights, powers and privileges
provided in this Section and all other remedies available to the Agent, the
Collateral Agent or any Lender under this Agreement or any Credit Document or by
statute or by rule of law at any time and from time to time (subject to the
terms of any intercreditor agreement) whether or not the Credit Obligations
shall be due and payable, and whether or not the Agent shall have instituted any
foreclosure or other action for the enforcement of any of the Credit Documents.
For the purpose of carrying out the provisions and exercising the rights, powers
and privileges granted by this Section, the Borrower hereby irrevocably
constitutes and appoints the Agent and the Collateral Agent its true and lawful
attorney-in-fact to execute, acknowledge and deliver any instruments and to do
and to perform any acts such as are referred to in this Section in the name and
on behalf of the Borrower. This power of attorney is a power coupled with an
interest and cannot be revoked.
In the event that the Agent or the Collateral Agent shall have
foreclosed on or sold any or all of the Collateral, the Agent or the Collateral
Agent shall apply the proceeds of any such foreclosure or sale as follows:
first, to the payment in full of the expenses of such sale,
disposition or realization, including all expenses, liabilities and advances
incurred or made by the Agent or the Collateral Agent in connection therewith,
including reasonable attorneys' fees;
second, to the payment of the Credit Obligations owing to the
Lenders, under the Credit Documents, on a pro-rata basis in accordance with the
terms of this Agreement and in accordance with the Total Term Loan Commitment
and Total Revolving Credit Commitment; and
third, to the Trustee for the benefit of the holders of the
Senior Second Secured Notes to the extent and as provided in the Intercreditor
Agreement; and
fourth, to or for the account of the Borrower.
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SECTION 11
THE AGENT THE
COLLATERAL AGENT AND RELATIONS AMONG LENDERS, ETC.
11.1 Appointment of Agent and Collateral Agent, Powers and Immunities.
Each Lender hereby irrevocably appoints and authorizes the Agent, and each
Lender hereby irrevocably appoints and authorizes the Collateral Agent, to act
as its agent hereunder and under the other Credit Documents with such powers as
are expressly delegated to the Agent, and the Collateral Agent, as the case may
be, by the terms of this Agreement and the other Credit Documents, together with
such other powers as are reasonably incidental thereto. Each of the Agent and
the Collateral Agent shall not have any duties or responsibilities except those
expressly set forth in this Agreement or in any other Credit Document, or be a
trustee for any Lender. Notwithstanding anything to the contrary contained
herein, the Agent and the Collateral Agent shall not be required to take any
action which is contrary to this Agreement or any other Credit Document or
applicable law. None of the Agent, the Collateral Agent, any Lender or any of
their respective Affiliates shall be responsible to any other Lender for any
recitals, statements, representations or warranties made by the Borrower
contained in this Agreement or any other Credit Document or in any certificate
or other document referred to or provided for in, or received by any Lender
under, this Agreement or any other Credit Document, for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement, the
Notes, the other Credit Documents or any other document referred to or provided
for herein or therein or for any failure by the Borrower or any Subsidiary to
perform its obligations hereunder or thereunder. Each of the Agent and the
Collateral Agent may employ agents and attorneys-in-fact and shall not be
responsible for the negligence or misconduct any such agents or
attorneys-in-fact selected by it with reasonable care. None of the Agent, the
Collateral Agent or any of their respective directors, officers, employees or
agents shall be responsible for any action taken or omitted to be taken by it or
them hereunder or under any other Credit Document or in connection herewith or
therewith, except for or their own gross negligence or willful misconduct.
11.2 Reliance by Agent and the Collateral Agent. Each of the Agent and
the Collateral Agent shall be entitled to rely upon any certificate, notice or
other document (including any cable, telegram, telecopy or telex) believed by it
to be genuine and correct and to have been signed or sent by or on behalf of the
proper Person or Persons, and upon advice and statements of legal counsel,
independent accountants and other experts selected by the Agent and the
Collateral Agent. As to any matters not expressly provided for by this
Agreement, the Agent and the Collateral Agent shall not be required to take any
action or exercise any discretion, but the Agent and the Collateral Agent shall
be required to act or to refrain from acting upon instructions of the Required
Lenders, in which case the Agent and Collateral Agent, shall in all cases be
fully protected in acting, or in refraining from acting, hereunder or under any
other Credit Document in accordance with such instructions of the Required
Lenders and any action taken or failure to act pursuant thereto shall be binding
on all of the Lenders.
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11.3 Defaults. None of the Agent or the Collateral Agent shall be deemed
to have knowledge or notice of the occurrence of a Default or an Event of
Default unless the Agent or the Collateral Agent, as the case may be, has
received notice from a Lender or the Borrower referring to this Agreement,
describing such Default or Event of Default and stating that such notice is a
"Notice of Default." In the event that the Agent or the Collateral Agent
receives such a notice of the occurrence of a Default or an Event of Default the
Agent, the Collateral Agent shall give notice thereof to the Lenders. The Agent
or the Collateral Agent, as the case may be, shall take such action with respect
to such Default or Event of Default as (which, subject to Section 11.4) shall be
reasonably directed by the Required Lenders; provided, that, unless and until
the Agent or the Collateral Agent, as the case may be, shall have received such
directions, the Agent or the Collateral Agent may (but shall not be obligated
to) take such action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem advisable in the best interests of
the Lenders, with respect to either the Agent or the Collateral Agent.
11.4 Rights of Agent and the Collateral Agent as Lenders. With respect
to their commitments to make Loans, the Agent and the Collateral Agent shall
have the same rights and powers hereunder as any other Lender and may exercise
the same as though they were not acting as the Agent or Collateral Agent,
respectively, and the term "Lender" or "Lenders" include or includes, unless the
context otherwise indicates, each of the Agent and the Collateral Agent in their
individual capacity. The Agent and the Collateral Agent and their Affiliates may
(without having to account therefore to any Lender) extend credit (on a secured
or unsecured basis) to and generally engage in any kind of lending, trust or
other business with the Borrower or any of its Affiliates, if it were not acting
as the Agent or the Collateral Agent, respectively.
11.5 Indemnification. Without limiting the obligations of the Borrower
under Sections 11.5 and 12.6, the Lenders agree to indemnify the Agent and the
Collateral Agent, ratably in accordance with the aggregate principal amount of
the Credit Obligations and remaining Commitments held by such Lender or, if no
Loans are then outstanding, the respective amounts of their Commitments, for any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements or any kind or nature
whatsoever which may at any time (including, without limitation, at any time
following the payment of principal of and/or interest on the Loans) be imposed
on, incurred by or asserted against the Agent and the Collateral Agent in any
way relating to or arising out of this Agreement or any documents contemplated
by or referred to herein or therein or the transactions contemplated hereby or
thereby (including the costs and expenses which the Borrower is obligated to pay
under Sections 11.5 and 12.6) or the enforcement of any of the terms hereof or
thereof or of any such other documents to the extent the Agent and, the
Collateral Agent are not reimbursed therefore by the Borrower, provided, that no
Lender shall be liable for any of the foregoing to the extent they arise from
the Agent's or the Collateral Agent's fraud, gross negligence or willful
misconduct. Each of the Agent and the Collateral Agent shall be fully justified
in refusing to take or to continue to take any action hereunder unless it shall
first be indemnified to its satisfaction by the Lenders against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action.
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11.6 Non-Reliance on Agent, the Collateral Agent and Other Lenders. Each
Lender represents that it has, independently and without reliance on the Agent,
the Collateral Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of the
financial condition and affairs of the Borrower and the XXX and its own decision
to enter into this Agreement and agrees that it will, independently and without
reliance upon the Agent, the Collateral Agent or any other Lender, and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own appraisals and decisions in taking or not taking action
under this Agreement. Neither the Agent, the Collateral Agent nor any Lender
shall be required to keep informed as to the performance or observance by the
Borrower under this Agreement or any other document referred to or provided for
herein or to make inquiry of, or to inspect the properties or books of, the
Borrower or any of its Subsidiaries. Except for notices, reports and other
documents and information expressly required to be furnished hereunder to the
Lenders by the Agent or the Collateral Agent, as the case may be, neither the
Agent, the Collateral Agent, nor any Lender shall have any duty or
responsibility to provide any Lender with any credit or other information
concerning the Borrower, or any Affiliate of the Borrower, which may come into
the possession of the Agent, the Collateral Agent or such Lender or any of its
or their Affiliates.
11.7 Resignation or Removal of Agent and Collateral Agent. Subject to
the appointment and acceptance of a successor Agent or Collateral Agent as
provided below, each of the Agent or Collateral Agent may resign at any time by
giving notice thereof to the Lenders and the Borrower, and the Agent or the
Collateral Agent may be removed at any time without cause by the Required
Lenders or with cause for gross negligence and willful misconduct by the Agent
or Collateral Agent. Upon any such resignation or removal, the Required Lenders
shall have the right to appoint a successor Agent or Collateral Agent, as the
case may be. If no successor Agent or Collateral Agent, as the case may be,
shall have been appointed by the Required Lenders and shall have accepted such
appointment within thirty (30) days after the retiring Agent's or Collateral
Agent's giving of notice of resignation or the Lenders' removal of the retiring
Agent or Collateral Agent, then the retiring Agent or Collateral Agent may, on
behalf of the Lenders, appoint a successor Agent or Collateral Agent, which
shall be: (a) a bank with an office (or having an Affiliate with an office) in
New York having a combined capital and surplus of not less than $250,000,000 and
(b) a Permitted Assignee. Upon the acceptance of any appointment as Agent or
Collateral Agent hereunder by a successor Agent or Collateral Agent, such
successor Agent or Collateral Agent shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the retiring Agent or
Collateral Agent, and the retiring Agent or Collateral Agent shall be discharged
from its duties and obligations hereunder. After any retiring Agent's or
Collateral Agent's resignation or removal hereunder, the provisions of this
Section 11 shall continue in effect for its benefit in respect of any actions
taken or omitted to be taken by it while it was acting as Agent or Collateral
Agent. Notwithstanding anything to the contrary contained herein, prior to the
appointment of any successor to the Collateral Agent as permitted pursuant to
the terms of this Section 11.7, the Borrower, the Agent, the Collateral Agent
and all necessary Lenders will execute any and all agreements deemed necessary
by the Agent and/or the Collateral Agent to
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maintain a perfected security interest in the Collateral, including but not
limited to any control agreements as contemplated under Section 8.19 above.
11.8 Authorization. The Agent and the Collateral Agent are hereby
authorized by the Lenders to execute, deliver and perform each of the Credit
Documents to which the Agent, and the Collateral Agent (whether as "Agent",
"Grantee" or "Mortgagee") are or are intended to be a party in their capacities
as Agent and Collateral Agent for the ratable benefit of the Lenders provided
herein and each Lender agrees to be bound by all of the agreements of the Agent
and the Collateral Agent contained in the Credit Documents.
11.9 Benefit of Agreement. Nothing in this Section 11, expressed or
implied, shall be construed to confer upon any Person (other than the Agent, the
Collateral Agent, the Lenders, the Standby L/C Issuer and the Surety L/C Issuer
and their respective permitted successors and/or any Permitted Assignee) any
legal or equitable right, remedy or claim under or by reason of this Section 11.
SECTION 12
MISCELLANEOUS
12.1 Amendments and Waivers. No provision of this Agreement or of any
other Credit Document to which the Agent is a party may be amended,
supplemented, modified or waived, except in accordance with the terms of this
Section 12.1. With the written consent of the Required Lenders, the Borrower and
the Agent may, from time to time, enter into written amendments, supplements or
modifications hereto for the purpose of adding any provisions to this Agreement
or the Notes or any other Credit Document to which any Lender is a party or
changing in any manner the rights of the Agent, the Collateral Agent, the
Lenders or of the Borrower hereunder or thereunder. The Agent, with the consent
of the Required Lenders, may also execute and deliver to the Borrower a written
instrument waiving, on such terms and conditions as the Agent may (at the
direction of the Required Lenders) specify in such instrument, any of the
requirements of this Agreement or the Notes or any other Credit Document to
which the any of the Lenders is a party, or any Default or Event of Default and
its consequences. Any such waiver and any such amendment, supplement or
modification shall be binding upon the Borrower, the Lenders and all future
holders of the Credit Documents; provided, however, that no such waiver and no
such amendment, supplement or modification shall: (a)(i) extend the maturity of
any Notes or the Surety L/C, (ii) reduce the rate of interest, (iii) reduce any
Unused Commitment Fee or any of the Letter of Credit Fees, (iv) extend the time
of any payment due in connection with or under the Total Term Loan Commitment
and/or the Total Revolving Credit Commitment, (v) reduce the principal amount of
any Credit Obligation (excluding the Surety L/C and any Standby L/C), or (vi)
except as otherwise permitted under Section 12.7 below, change the percentage,
amount or terms of any Lender's Commitments, without (in each case) the consent
of each Lender affected thereby, (b) increase the Stated Amount of the Surety
L/C (provided that no consent of any Lender shall be required to reduce the
Stated Amount of any Letter of Credit, shorten the expiration date of any Letter
of Credit, permit the transfer of any Letter of Credit by the beneficiary
thereof in accordance with the terms of the Letter of Credit, or change any
notice, payment or similar ministerial provision of the Letter of Credit), or
(c) amend, modify or waive any provision of this Section 12.l, or
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change in any respect the definition of Required Lenders or any other definition
to the extent incorporated therein or release any Collateral or amend any
provision hereof which would result in borrowings or payments by the Borrower
hereunder on a basis other than pro rata among all the Lenders to the extent
provided herein or which limits the liability of any Lenders hereunder, in each
case without the written approval of all the Lenders. Any such waiver and any
such amendment, supplement or modification shall apply equally to each of the
Lenders and shall be binding upon the Borrower, the Lenders, the Agent, the
Collateral Agent and all future holders of the Credit Obligations.
Notwithstanding the foregoing, to the extent that any of the actions outlined
herein are already expressly permitted under the terms of this Agreement,
including but not limited to the possible release of the Working Capital Assets
under Section 2.8, the provisions of this Section 12.1 will not be operative.
12.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing, by telecopier or,
if available, by telex and, unless otherwise expressly provided herein, shall be
deemed to have been duly given or made when delivered by hand, or when deposited
in the mail, first class postage prepaid, or in the case of transmission by
telecopier, when confirmation of receipt is obtained, or in the case of telex
notice, when sent, answerback received, addressed as follows in the case of the
Borrower, the Agent and as set forth in Schedule 12 in the case of the Lenders,
or to such other address as may be hereafter notified by the respective parties
hereto and any future holders of the Notes:
The Borrower: American Rock Salt Company LLC
(if by FedEx) 0000 Xxxxxx Xxxx
Xxxxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxx, CFO
Telecopy: (000) 000-0000
(if by mail) X.X. Xxx 000
Xxxxx Xxxxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxx, CFO
with a copy to: Xxxxxx Beach LLP
00 Xxxxxxx Xxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxxxx Xxxxx, Esq.
Telecopy: (000) 000-0000
The Agent: Manufacturers and Traders Trust Company
000 Xxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxx, Vice President
Telecopy: (000) 000-0000
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with a copy to: Xxxxx Xxxxxx Xxxxxx, LLP
Xxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxx X. Forth, Esq.
Telecopy: (000) 000-0000
12.3 No Waiver; Cumulative Remedies. No failure to exercise and no delay
in exercising, on the part of the Agent or the Lenders, any right, remedy, power
or privilege hereunder, shall operate as a waiver thereof; nor shall any single
or partial exercise of any right, remedy, power or privilege hereunder preclude
any other or further exercise thereof or the exercise of any other right,
remedy, power or privilege. The rights, remedies, powers and privileges herein
provided are cumulative and not exclusive of any rights, remedies, powers and
privileges provided by law.
12.4 Survival. All representations and warranties made in this Agreement
and in any document, certificate or statement delivered pursuant hereto or in
connection herewith shall survive the execution and delivery of this Agreement
and the Notes.
12.5 Expenses and Taxes. Whether or not any Loan is made or any of the
other transactions contemplated by this Agreement are consummated, the Borrower
shall:
(a) pay all reasonable expenses incurred by the Agent and the
Arranger with respect to the negotiation, preparation, execution and delivery of
this Agreement and the other Credit Documents (but limited to $5,000 in
syndication and travel expenses), any and all transactions contemplated hereby
or thereby and the preparation of any document reasonably required hereunder or
thereunder, including (without limiting the generality of the foregoing) all
reasonable fees and expenses of counsel, all title and conveyancing charges,
recording and filing fees and taxes, mortgage taxes, intangible personal
property taxes, escrow fees, revenue and tax stamp expenses, insurance premiums
(including title insurance premiums), court costs, and surveyors', appraisers',
architects', engineers', environmental consultants' and accountants' reasonable
fees and disbursements,
(b) pay all reasonable third party expenses incurred by the
Agent, the Collateral Agent and the Lenders in connection with the
administration of this Agreement and the other Credit Documents, including
(without limiting the generality of the foregoing) all related reasonable
attorneys' fees and expenses and related costs, with respect to (i) any
amendments, waivers or supplements to any of the Credit Documents, or (ii) any
request of the Borrower for a consent, waiver or other action with respect to
enforcement of their rights and remedies hereunder,
(c) pay each of the Agent and the Collateral Agent for all its
reasonable costs and expenses incurred in connection with, and to pay, indemnify
and hold the Agent and the Collateral Agent harmless from and against any and
all other liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever arising out of or in connection with, the enforcement or preservation
of any rights under this Agreement and the other Credit Documents and any such
other documents,
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including without limitation, reasonable fees and disbursements of counsel to
the Agent and the Collateral Agent incurred in connection with the foregoing and
in connection with advising the Agent with respect to its rights and
responsibilities under this Agreement, the other Credit Documents and the
documentation relating thereto, and
(d) pay, indemnify, and hold each Lender harmless from and
against any and all recording and filing fees and any and all liabilities with
respect to, or resulting from any delay in paying, stamp, excise and other
similar taxes (and not taxes imposed on or measured by net income, overall gross
receipts or capital of such Lender or any franchise tax imposed on such Lender),
if any, which may be payable or determined to be payable in connection with the
execution and delivery of, or consummation of any of the transactions
contemplated by, or any amendment, supplement or modification of, or any waiver
or consent under or in respect of, this Agreement and the other Credit Documents
and any such other documents; provided, that the Borrower shall have no
obligation hereunder with respect to indemnified liabilities of each of the
Agent, the Collateral Agent or any Lender or their Affiliates or any of their
respective officers and directors to the extent that such indemnified liability
resulted from the respective gross negligence or willful misconduct of the
Agent, the Collateral Agent or any Lender. The Agent may pay or deduct from the
Loan proceeds any of such expenses and any Loan proceeds so applied shall be
deemed advances under this Agreement and secured by the Senior Security
Documents. The agreements in this subsection shall survive repayment of the
Notes and all other amounts payable hereunder.
12.6 Indemnification. The Borrower agrees to pay, indemnify and hold
each Indemnitee harmless from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever which may at any time (including without
limitation at any time following the payment of the Notes) be imposed on,
incurred by or asserted against any such Person in any way relating to or
arising out of this Agreement or the other Credit Documents, or any documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby (all of the foregoing, collectively, the
"Indemnified Liabilities"), provided, that the Borrower shall have no obligation
hereunder to any with respect to indemnified liabilities arising from (a) the
gross negligence or willful misconduct of any such Indemnitee, (b) legal
proceedings commenced against any such Indemnitee by any security holder or
creditor of any such Indemnitee arising out of and based upon rights afforded
any such security holder or creditor solely in its capacity as such, or (c)
legal proceedings commenced against any such Indemnitee by any Permitted
Assignee or Transferee. Without limiting the foregoing, and to the extent
permitted by applicable law, the Borrower agrees not to assert, and hereby
waives, all rights for contribution or any other rights of recovery with respect
to all claims, demands, penalties, fines, liabilities, settlements, damages,
costs and expenses of whatever kind or nature, under or related to Environmental
Laws, that it now or hereafter may have by statute or otherwise against any
Indemnitee. The agreements in this Section shall survive repayment of the Notes
and all other amounts payable hereunder.
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12.7 Successors and Assigns; Transferees; Transferred Interests.
(a) This Agreement shall be binding upon and inure to the
benefit of the Borrower, the Agent, the Lenders, all future holders of the Notes
and their respective successors and assigns, except that the Borrower may not
assign or transfer any of its rights or obligations under this Agreement without
the prior written consent of all the Lenders.
(b) (i) Each Lender, in accordance with all Applicable Laws and
upon the prior written consent of the Agent, may at any time assign to one or
more Persons (a "Permitted Assignee") all or a portion of its interests, rights
and obligations under this Agreement (including, without limitation, a portion
of its Commitments, participation interests in Standby L/Cs, participation
interests in the Surety L/C, Loans at the time owing to it and the Notes);
provided, that (i) no such assigned interest shall be in an amount less than
$5,000,000 and each such assigning Lender that does not assign its entire
interest shall maintain a Commitment in an amount not less than $5,000,000, (ii)
such assignment shall be to a bank or financial institution having a combined
capital and surplus of not less than $100,000,000, (iii) no assignment shall be
made to any of the following named entities or their Affiliates or their
respective successors: Cargill, Detroit Salt, Rohm and Xxxx (Xxxxxx
International), Compass Minerals, Inc. (IMC Global (NAMSCO)), Xxxxxxx Brothers,
U.S. Salt and International Salt and (iv) no assignment of any interest in any
Revolving Loan, Standby L/C, Surety L/C or Term Loan shall be made without
making a corresponding ratable assignment of the Commitments, Loans and Letter
of Credit interests then held by such assigning Lender.
(ii) The parties to each such assignment shall
execute and deliver to the. Agent, for its acceptance and recording in the
Register referred to in paragraph (iii) of this Section 12.7(b), an assignment
substantially in the form of Exhibit O (a "Commitment Transfer Supplement"),
together with a processing fee of $3,500 and any Note or Notes subject to such
assignment. Upon its receipt of a Commitment Transfer Supplement executed by an
assigning Lender and a Permitted Assignee, together with a processing fee of
$3,500 and any Note or Notes subject to such assignment and the written consent
to such assignment, if required, the Agent shall, if such Commitment Transfer
Supplement has been completed, (x) accept such Commitment Transfer Supplement,
(y) record the information contained therein in the Register and (z) give prompt
notice thereof to the Borrower. Notwithstanding the foregoing, the fees
described in this Section 12.7(ii) shall not apply to any transfer by a Lender
to any Affiliate of any such transferring Lender. Within five (5) Business Days
after notice of execution and delivery of such assignment, the Borrower, at its
own expense, shall execute and deliver to the Agent in exchange for the
assigning Lender's surrendered Note or Notes a new Note or Notes to the order of
such Permitted Assignee in an amount reflecting the portion of the Commitments
assumed by it pursuant to such assignment and a new Note or Notes to the order
of the assigning Lender in an amount reflecting the portion of the Commitments
retained by it hereunder. Such new Note or Notes shall be in an aggregate
principal amount equal to the aggregate principal amount of such surrendered
Note or Notes, shall be dated the date of such surrendered Note or Notes and
shall otherwise be in substantially the form of surrendered Notes. Cancelled
Notes shall be returned to the Borrower. In addition, the Borrower shall use its
reasonable efforts to provide to the Agent reliance letters covering the
opinions and reports required to be delivered on or prior to the Closing Date.
Upon (x) the execution, delivery and
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recording of such assignment, (y) delivery of an executed copy thereof to the
Borrower and (z) payment by the Permitted Assignee of the purchase price
specified therein, (1) such Permitted Assignee shall be a Lender party hereto
and, to the extent provided in such assignment (but in no event in excess of the
amount assigned), shall have the rights and obligations of a Lender hereunder
and (2) the assigning Lender shall, to the extent provided in such assignment
with respect to the interests, rights and obligations of such Lender so
assigned, be released from its obligations under this Agreement.
(iii) The Agent shall maintain at its address referred
to in Section 12.2 a copy of each Commitment Transfer Supplement delivered to it
and a register for the recordation of the names and addresses of the Lenders and
the Commitments of each Lender from time to time (the "Register"). The entries
in the Register shall be conclusive in the absence of manifest error, and the
Borrower, the Agent, and the Lenders may treat each Person whose name is
recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrower or any
Lender at any reasonable time and from time to time upon reasonable prior
notice.
(c) The Borrower acknowledges that each Lender may at any time
grant participations in the Standby L/Cs, the Surety L/C or in this Agreement
and the Senior Security Documents (collectively, "Participations") to one or
more Persons (such Persons being herein called "Transferees"); provided,
however, that (i) such Lender's obligations under this Agreement and under any
Senior Security Document shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations, and (iii) the Borrower shall continue to deal solely and directly
with such Lender in connection with such Lender's rights and obligations under
this Agreement and under any Senior Security Documents.
(d) The Borrower authorizes each Lender to disclose to any
prospective Permitted Assignee pursuant to paragraph (b) of this Section 12.7 or
prospective Transferee pursuant to paragraph (c) of this Section 12.7 all
financial or other necessary information in such Lender's possession concerning
the Borrower and its Subsidiaries which has been delivered to such Lender by or
on behalf of the Borrower pursuant to this Agreement or any other Credit
Document or which has been delivered to such Lender by or on behalf of the
Borrower or any Affiliate of the Borrower in connection with such Lender's
credit evaluation of the Borrower and its Subsidiaries prior to or after
entering into this Agreement; provided, however, that if any such information
furnished to such Lender, prospective Permitted Assignee or prospective
Transferee is marked in writing as being confidential information, such Lender,
prospective Permitted Assignee or prospective Transferee shall hold such
information confidential, except that such information may be disclosed (i) to
the Agent's and Lenders', prospective Assignee's or prospective Transferee's
employees, officers, directors and other personnel engaged in the transactions
contemplated by the Credit Documents from time to time, (ii) to the Agent's and
Lenders' prospective Assignee's or prospective Transferee's counsel, independent
certified public accountants or independent insurance advisors or insurance
examiners or engineers or consultants who agree to hold such information
confidential, (iii) as may be required by any statute, court or administrative
order or decree or governmental ruling or regulation, (iv) as may be requested
by any Governmental Authority or
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(v) as may be necessary in connection with the enforcement of any provision of
any Credit Document.
12.8 Severability. Any provision hereof which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof and without affecting the validity or enforceability
of any provision in any other jurisdiction.
12.9 Headings. The headings of the various sections and paragraphs of
this Agreement are for convenience of reference only, do not constitute a part
hereof and shall not affect the meaning or construction of any provision hereof.
12.10 Counterparts. This Agreement may be executed by one or more of the
parties hereto on any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
12.11 The Lenders Sole Beneficiaries. All conditions of the obligations
of the Lenders to make Loans, issue Standby L/Cs and issue the Surety L/C
hereunder are imposed solely and exclusively for the benefit of the Lenders and
their assigns and no other Person shall have standing to require satisfaction of
such conditions in accordance with their terms or be entitled to assume that the
Lenders will refuse to make Loans and to take participating interests in Standby
L/Cs and/or the Surety L/C in the absence of strict compliance with any or all
of such conditions and no Person shall, under any circumstances, be deemed to be
a beneficiary of such conditions, any or all of which may be freely waived in
whole or in part by the Lenders at any time if in their sole discretion it deems
it advisable to do so. The Lenders are obligated hereunder solely to make Loans,
to issue Standby L/Cs and to issue the Surety L/C if and to the extent required
by this Agreement.
12.12 Governing Law. This Agreement and the Notes and the rights and
obligations of the parties under this Agreement and the Notes shall be governed
by, and construed and interpreted in accordance with, the law of the State of
New York.
12.13 Submission to Jurisdiction; Waivers.
(a) The Borrower hereby irrevocably and unconditionally:
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(i) Submits for itself and its property in any legal
action or proceeding relating to this Agreement or any other Credit Document, or
for recognition and enforcement of any judgment in respect thereof, to the
non-exclusive general jurisdiction of the courts of the State of New York
located in either Monroe County or Xxxxxxxxxx County, the courts of the United
States of America for the Western District of New York, and Appellate Courts
from any thereof;
(ii) Consents that any such action or proceeding may
be brought in such courts, and waives any objection that it may now or hereafter
have to the venue of any such action or proceeding in any such court or that
such action or proceeding was brought in any inconvenient court and agrees not
to plead or claim the same;
(iii) Agrees that service of process in any such
action or proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage prepaid, to
the Borrower at its address set forth in Section 12.2 or at such other address
of which the Agent shall have been notified pursuant thereto; and
(iv) Agrees that nothing herein shall affect the
right to effect service of process in any other manner permitted by law or shall
limit the right to xxx in any other jurisdiction.
(b) The Borrower, the Agent and each Lender hereby irrevocably
and unconditionally waive trial by jury in any legal action or proceeding
referred to in paragraph (a) above.
12.14 Maximum Interest Rate. Anything to the contrary notwithstanding,
the Lenders shall not charge, take or receive and the Borrower shall not be
obligated to pay to the Lenders, any amounts constituting interest on the Loans
in excess of the maximum rate permitted by applicable law.
12.15 Confidentiality Provision. Each of the Agent, the Collateral Agent
and the Lenders agrees to maintain the confidentiality of the Information (as
defined below), except that Information may be disclosed (a) to its and its
Affiliates' directors, officers, employees and agents, including accountants,
legal counsel and other advisors (it being understood that the Persons to whom
such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the
extent requested by any regulatory authority, (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (d)
to any other party to this Agreement, (e) in connection with the exercise of any
remedies hereunder or any suit, action or proceeding relating to this Agreement
or the enforcement of rights hereunder, (f) subject to an agreement containing
provisions substantially the same as those of this Section, to any assignee of
or Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement, (g) with the consent of the Borrower
or (h) to the extent such Information (i) becomes publicly available other than
as a result of a breach of this Section 12.15 or (ii) becomes available to the
Agent, the Collateral Agent or any Lender on a non-confidential basis from a
source other than the Borrower. For the purposes of this Section,
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"Information" means all information received from the Borrower relating to the
Borrower or its business, other than any such information that is available to
the Agent, the Collateral Agent or any Lender on a non-confidential basis prior
to disclosure by the Borrower; provided that, in the case of information
received from the Borrower after the date hereof, such information is clearly
identified at the time of delivery as confidential. Any Person required to
maintain the confidentiality of Information as provided in this Section 12.15
shall be considered to have complied with its obligations to do so if such
Person has exercised the same degree of care to maintain the confidentiality of
such Information as such Person would accord to its own confidential
information.
[SIGNATURE PAGES FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the days and year first above written.
AMERICAN ROCK SALT COMPANY LLC
By: /s/ Xxxx X. Xxxxx
------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice Chairman
MANUFACTURERS AND TRADERS TRUST COMPANY,
as Arranger, Agent, Collateral Agent,
Letters of Credit Issuer and as a Lender
By: /s/ Xxxx X. Xxxxx
------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
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CITIZENS BANK OF PENNSYLVANIA
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxx, Xx.
Title: Senior Vice President
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ALLIED IRISH BANKS, P.L.C.
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
By: /s/ Xxxxxx X'Xxxxxxx
------------------------------------
Name: Xxxxxx X'Xxxxxxx
Title: Assistant Vice President
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CHARTER ONE BANK, N.A.
By: /s/ Xxxxx Xxxx
------------------------------------
Name: Xxxxx Xxxx
Title: Vice President
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COMERICA BANK
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
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THE BANK OF CASTILE
By: /s/ Xxxxx X. XxXxXxxxxx
------------------------------------
Name: Xxxxx X. XxXxXxxxxx
Title: Senior Vice President
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APPENDIXES, SCHEDULES AND EXHIBITS
APPENDIXES
Appendix A - List of Lenders
EXHIBITS
Exhibit A - Borrowing Base Certificate
Exhibit B - Notice of Revolving Loan Borrowing
Exhibit C - XXX/Borrower Mortgage
Exhibit D - Intercreditor Agreement
Exhibit E - LLC Pledge Agreement
Exhibit F - NOMIPS Subordination Agreement
Exhibit G - Notice of Term Loan Borrowing
Exhibit H - Revolving Loan Note
Exhibit I - Security Agreement
Exhibit J - Sinking Fund Collateral Account and Pledge Agreement
Exhibit K - Standby L/C
Exhibit L - Surety L/C
Exhibit M - Term Loan Scheduled Amortization Payment Schedule
Exhibit N - Term Loan Note
Exhibit O - Commitment Transfer Supplement
SCHEDULES
Schedule 1 - Description of Leased Premises
Schedule 2 - Permitted Indebtedness
Schedule 3 - Total Revolving Credit and Term Loan Commitments
Schedule 4 - Borrower's Members
Schedules 5 and 6 - Governmental Approvals and Other Consents and
and Approvals
Schedule 7 - Litigation
Schedule 8 - Material Contracts
Schedule 9 - UCC Statement Filings
Schedule 9(a) - Permitted Liens
Schedule 10 - Mineral Rights
Schedules 11(a),
(b) and (c) - Environmental Matters
Schedule 12 - Notices
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APPENDIX A
LIST OF LENDERS
Manufacturers and Traders Trust Company
Citizens Bank of Pennsylvania
Allied Irish Banks, P.L.C.
Charter One Bank, N.A.
Comerica Bank
The Bank of Castile
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