EXECUTION COUNTERPART
AMENDMENT AGREEMENT
This AMENDMENT AGREEMENT (this "Agreement" or this
"Amendment"), dated as of December 31, 1995, is entered into by and
among DRAVO CORPORATION, a Pennsylvania corporation ("Dravo"), DRAVO
LIME COMPANY, a Delaware corporation ("Lime"), DRAVO BASIC MATERIALS
COMPANY, INC., an Alabama corporation ("Basic", together with Lime
referred to herein as the "Companies"), FIRST ALABAMA BANK, a
subsidiary of Regions Financial Corporation ("FAB"), PNC BANK,
NATIONAL ASSOCIATION (formerly known as Pittsburgh National Bank)
("PNC"), BANK OF AMERICA ILLINOIS (formerly known as Continental
Bank and Continental Bank N.A.) ("BAI"; FAB, PNC and BAI
collectively referred to herein as "Banks"), THE PRUDENTIAL
INSURANCE COMPANY OF AMERICA ("Prudential" and the Banks
collectively referred to as "Lenders" and each a "Lender"), and FAB,
as agent for the Banks (in such capacity, together with its
successors and assigns, the "Agent") and BAI, as documentation agent
for the Banks (in such capacity, together with its successors and
assigns, the "Documentation Agent").
PRELIMINARY STATEMENTS
(1) The Companies, Dravo and the Lenders have entered into
an Override Agreement, dated as of January 21, 1992, as amended by
the First Amendment to Override Agreement, dated March 10, 1993, the
Second Amendment to Override Agreement, dated as of March 7, 1994,
the Amendment Agreement, dated as of August 1, 1994 and the
Amendment Agreement, dated as of January 3, 1995 (as so amended, the
"Override Agreement"). In addition, the Companies, the Agent and
the Lenders have entered into an Amended and Restated Revolving
Credit Agreement, dated as of January 21, 1992, as amended by the
First Amendment to Amended and Restated Revolving Credit Agreement,
dated as of March 7, 1994, by the Amendment Agreement dated as of
August 1, 1994 and the Amendment Agreement dated as of January 3,
1995 (as so amended, the "Revolving Credit Agreement"). Capitalized
terms used but not defined herein shall have the meanings assigned
to such terms in the Override Agreement, as amended hereby.
(2) The parties hereto desire to amend the Revolving Credit
Agreement, the Override Agreement and certain other Operative
Documents to reflect certain covenant changes, among other things.
NOW, THEREFORE, in consideration of the premises, the parties
hereto agree as follows:
ARTICLE I
FIFTH AMENDMENT TO OVERRIDE AGREEMENT
SECTION 1.01. Amendments to Override Agreement. The
Override Agreement shall be, effective as of the date hereof and
subject to the satisfaction of the conditions precedent set forth in
Section 4.01 hereof, amended as follows:
(a) Amendments to Article IV. Article IV shall be amended
as follows:
(i) Section 4.01(a) is amended by deleting the word
"and" and the semicolon following clause (viii), adding a
period at the end of clause (viii), and deleting in its
entirety the following clause (ix):
"(ix) promptly upon receipt or transmission
thereof, a copy of each report (financial or
otherwise), notice (including, without limitation, any
notice disclosing any default), certificate or
statement received or provided by it or any of its
Subsidiaries pursuant to any Transaction Document, to
the extent not provided to the Lenders by any Dravo
Party pursuant to clauses (i) through (viii) above."
(ii) Section 4.01(b) is amended by deleting in its
entirety the phrase "(other than Lime SPV)" in each place in
which it appears therein;
(iii) Section 4.01(b) is further amended by deleting
in its entirety the following sentences at the end thereof:
"The inspection rights of the Lenders with respect to
Lime SPV shall be governed by the Master Common
Facilities Agreement as in effect on the Initial
Funding Date. Each of the Dravo Parties further
covenants that, so long as a Lender shall hold any
Note or Notes or any Secured Obligation shall remain
outstanding, it will permit one of the Lenders and its
representatives to perform an annual collateral audit
with respect to the Collateral, at the expense of the
Dravo Parties, which collateral audit shall be
conducted in accordance with such Lender's then
existing practices and procedures relating to
collateral audits."
(iv) Section 4.01(d) is amended by deleting in its
entirety the parenthetical phrase "(other than Lime SPV, the
SPV General Partner and the SPV Limited Partner)".
(v) Section 4.01(e) is amended by deleting in its
entirety the parenthetical phrase "(other than Lime SPV, the
SPV General Partner and the SPV Limited Partner)".
(vi) Section 4.01(f) is amended by deleting in its
entirety the parenthetical phrase "(other than Lime SPV, the
SPV General Partner and the SPV Limited Partner)".
(vii) Section 4.01(g) is amended by deleting in its
entirety the parenthetical phrase "(other than Discontinued
Subsidiaries, Lime SPV, the SPV General Partner and the SPV
Limited Partner)" in each place in which it appears therein
and substituting therefor in each case the new parenthetical
phrase "(other than Discontinued Subsidiaries)".
(viii) Section 4.01(h) is amended by deleting in
its entirety the parenthetical phrase "(other than Lime SPV,
the SPV General Partner and the SPV Limited Partner)".
(ix) Section 4.01(l) is amended by deleting in its
entirety the parenthetical phrase "(other than any
properties acquired by Lime SPV for use in the Project)".
(x) Section 4.01 is amended by deleting in its
entirety each of the following subsections (m), (n), (o),
(p), (q), (r) and (s) and relettering subsections (t), (u),
(v), (w) as (m), (n), (o) and (p), respectively.
"(m) Direct Ownership of Lime SPV, the SPV
General Partner and the SPV Limited Partner. Lime
shall maintain direct 100% ownership of all capital
stock (other than the Class B Common Stock of the SPV
General Partner) of the SPV General Partner and the
SPV Limited Partner, and shall cause the SPV General
Partner and the SPV Limited Partner to maintain direct
100% ownership of all of the partnership interests of
Lime SPV.
(n) Lime SPV, SPV General Partner and SPV
Limited Partner Organizational Documents. Lime shall
not, without the prior written consent of the Lenders,
permit Lime SPV, the SPV General Partner and the SPV
Limited Partner to amend, supplement, replace, restate
or otherwise modify any of the organizational
documents of such Person, including, without
limitation, (i) the limited partnership agreement and
certificate of limited partnership of Lime SPV and
(ii) the articles of incorporation of the SPV General
Partner and the SPV Limited Partner.
(o) Issuance of Additional Capital Stock by
the SPV General Partner and the SPV Limited Partner.
Except for (i) one share of Class B Common Stock
issued by the SPV General Partner to PruPower and (ii)
any shares of capital stock issued by the SPV General
Partner and the SPV Limited Partner to Lime on or
before the Initial Funding Date, Lime shall not permit
the SPV General Partner or the SPV Limited Partner to
issue, sell or otherwise dispose of (either directly,
or indirectly by the issuance of rights or options
for, or securities convertible into, such shares) any
shares of any class of its capital stock.
(p) Distributions Under Deposit and
Disbursement Agreement. Lime shall cause Lime SPV,
the SPV General Partner and the SPV Limited Partner to
distribute immediately to Lime all funds received by
Lime SPV pursuant to the Deposit and Disbursement
Agreement.
(q) Amendments to Master Common Facilities
Agreement and Deposit and Disbursement Agreement.
Lime shall not, without the prior written consent of
the Lenders, enter into any amendment of (i) the
provisions of the Master Common Facility Agreement set
forth in Section 9.1 of the Project Intercreditor
Agreement or (ii) the requirement set forth in Section
2.2(b)(ii) of the Deposit and Disbursement Agreement
that Lime shall receive all remaining amounts after
all other required payments (including, without
limitation, required payments resulting from any
amendment to said Section 2.2(b)(ii)) have been made
pursuant thereto.
(r) Replacement of Lime as Operator of the
Black River Facility. Lime agrees and acknowledges
that the Lenders shall have the right to replace Lime
as the operator of the Black River Facility in
accordance with the terms of the Master Common
Facilities Agreement.
(s) Indemnity of Lime SPV Against Lime.
Notwithstanding anything to the contrary contained in
the Master Common Facilities Agreement, Lime (in its
capacity as "Operator" thereunder) shall have no
obligation to indemnify Lime SPV with respect to any
amounts due and payable on the Notes (as defined in
the Note Purchase Agreement) (including, without
limitation, any principal, interest, fees or Make-
Whole Amount (as defined in the Note Purchase
Agreement)), except to the extent of any amounts
realized upon the sale, foreclosure or other
disposition of the Shared Collateral (as defined in
Annex A to the Project Intercreditor Agreement)."
(xi) Section 4.02(b) is amended in its entirety to
read as follows:
"Fixed Charge Test. Dravo shall cause the Fixed
Charge Coverage Ratio of Dravo and its Subsidiaries as
at the end of each of Dravo's fiscal quarters to equal
or exceed 1.25 from the Effective Date to and
including December 31, 1996 and 1.5 thereafter.
(b) Amendments to Article V. Article V shall be amended
as follows:
(i) Section 5.01(a), Working Capital and Current
Ratio Requirements, is amended by deleting such Section in
its entirety and substituting therefor the following new
Section 5.01(a):
"(a) Net Worth Requirement. Dravo will not
permit its Consolidated Net Worth at any time to be
less than $90,784,000 (the "Base Amount") as of the
Effective Date hereof and as of each quarter ending
thereafter to be less than a sum equal to the Base
Amount plus 50% of Consolidated Net Earnings available
to common shareholders (to the extent this is a
positive number) for each quarter ending after the
Effective Date."
(ii) Section 5.01(b) is amended in its entirety to
read as follows:
"(b) Dividend Restrictions. Dravo shall not:
(x) pay or declare any dividend on any class of its
stock or make any other distribution on account of any
class of its stock (referred to herein collectively as
"Dividends") or (y) make, directly or indirectly
(including by Subsidiary of Dravo), any Excess
Redemption (all Dividends and Excess Redemptions
collectively referred to herein as "Dravo Restricted
Payments") if such Dravo Restricted Payments, taken
together with all other Dravo Restricted Payments made
on or after September 30, 1995, would exceed 25% of
Consolidated Net Earnings from Continuing Operations
after September 30, 1995. There shall not be included
in Dravo Restricted Payments (x) Dividends paid, or
distributions made, in stock of Dravo; or
(y) exchanges of stock of one or more classes of Dravo
for common stock of Dravo or for stock of Dravo of the
same class, except to the extent that cash or other
value is involved in such exchange; or (z) the payment
of regularly scheduled dividends on the Shares or the
Preference Stock Series B originally issued to the
Xxxxxxxx estate (the "Xxxxxxxx Shares"). The term
"stock" as used in this Section 5.01(b) shall include
warrants or options to purchase stock.
Notwithstanding the foregoing, Dravo shall not make a
Dravo Restricted Payment if a Default or Event of
Default has occurred or would occur as a result of
such Dravo Restricted Payment. As used herein, the
term "Excess Redemption" means any redemption,
purchase or other acquisition of any shares of the
capital stock (including without limitation any
preferred stock) of Dravo in an amount exceeding the
cash proceeds received by Dravo in connection with any
issuance or sale of any capital stock of Dravo (net
of all reasonable costs and expenses incurred by Dravo
in connection with such issuance of capital stock)
occurring after September 30, 1995.
(iii) Section 5.01(c) is amended in its entirety to
read as follows:
"(c) Debt. Dravo shall not, and shall not
permit any of its Subsidiaries to, at any time create,
incur, assume or suffer to exist:
(i) any Debt in excess of 50% of Dravo
Consolidated Net Tangible Assets from the
Effective Date hereof to and including
December 31, 1996 and 45% of Dravo Consolidated
Net Tangible Assets thereafter; or
(ii) any Debt so that the ratio of Debt
to EBDIAT would exceed 3.25 to 1.0 from the
Effective Date hereof to and including
December 31, 1996 and 3.0 to 1.0 thereafter.
(iv) Section 5.01(d) is amended by deleting the
phrase "(other than (A) the Secured Obligations, (B) any
Debt incurred in connection with the Project pursuant to the
Note Purchase Agreement and the other Financing Documents
and (C) any Debt permitted by Section 5.01(e) hereof)" in
its entirety and substituting therefor the new phrase
"(other than the Secured Obligations)".
(v) Section 5.01 is amended by deleting in its
entirety the following subsection (e):
"(e) Maximum Project Debt. Dravo shall not
permit Lime SPV, the SPV General Partner and the SPV
Limited Partner to create, incur, assume or suffer to
exist at any time subsequent to the Initial Funding
Date, any Debt for borrowed money or any guaranties of
Debt for borrowed money (other than the outstanding
principal amount of the Notes (as defined in the Note
Purchase Agreement), which in no event shall exceed
$50,000,000) in an aggregate amount in excess of the
sum of (i) $10,000,000, (ii) the amount of any Debt
incurred to finance capital expenditures required to
enable such Persons to comply with Applicable Law
(including, without limitation, Environmental Laws (as
defined in the Note Purchase Agreement)) and (iii) the
amount of any Debt incurred by such Persons upon the
occurrence and during the continuance of an Event of
Default (as defined in Annex A to the Project
Intercreditor Agreement)."
(vi) Section 5.02(a) is amended by deleting such
Section in its entirety.
(vii) Section 5.02(b) is amended by deleting such
Section in its entirety.
(viii) Section 5.02 is amended by deleting in its
entirety the following subsection (d) at the end thereof:
"(d) Lime shall not permit Lime SPV to enter
into any lime supply agreements other than (i)
Economically Similar Contracts (as defined in Annex A
to the Project Intercreditor Agreement) and (ii) other
lime supply agreements that are approved in writing by
the Lenders."
(ix) The introductory paragraph of Section 5.03 is
amended in its entirety to read as follows:
"Section 5.03. Dravo Parties Negative
Covenants. So long as a Lender shall hold any Note or
Notes or any Secured Obligation remains outstanding,
each of the Dravo Parties shall comply with each of
the following:"
(x) Section 5.03(a)(i)(H) is amended in its entirety
to read as follows:
"(H) Liens created or permitted by any
Operative Document entered into in connection with
this Agreement (including, without limitation,
Permitted Liens (as defined in the Note Purchase
Agreement)), and"
(xi) Section 5.03(a)(ii) is amended by deleting in
its entirety the following proviso at the end thereof:
"provided, however, that (a) notwithstanding the
foregoing, Lime may (i) make advances to Lime SPV
pursuant to Section 1.4(d) of the Master Common
Facilities Agreement and (ii) make capital
contributions (including, without limitation, the
Investment (as defined in the Note Purchase
Agreement)) to, and pay any other amount (including,
without limitation, any amount required to be paid by
Lime pursuant to Section 3.15 of the Lime Security
Agreement (as defined in the Note Purchase Agreement)
as in effect on the Initial Funding Date) on behalf
of, Lime SPV, the SPV General Partner and the SPV
Limited Partner (x) on or before the Conversion Date
(as defined in Annex A to the Project Intercreditor
Agreement) pursuant to the Financing Documents, in an
aggregate amount not to exceed the sum of (A)
$12,400,000 in the aggregate on the Initial Funding
Date and (B) $5,300,000 in the aggregate for amounts
required to be contributed by Lime to Lime SPV
pursuant to Section 3.15(b) of the Lime Security
Agreement (as defined in the Note Purchase Agreement)
as in effect on the Initial Funding Date, and (y) from
time to time after said Conversion Date, in an
aggregate amount not to exceed the lesser of (1)
$4,000,000 and (2) the amount disbursed to Lime SPV
from the Construction Account (as defined in Annex A
to the Project Intercreditor Agreement) on the
Conversion Date pursuant to Section 2.1(b) of the
Deposit and Disbursement Agreement as in effect on the
Initial Funding Date, and (b) the foregoing provisions
of this Section 5.03(a)(ii) shall not apply to Lime
SPV, the SPV General Partner and the SPV Limited
Partner."
(xii) Section 5.03(a)(iii) is amended by deleting in
its entirety the phrase "shall not apply to any Discontinued
Subsidiary, Lime SPV, the SPV General Partner or the SPV
Limited Partner" and substituting therefor the new phrase
"shall not apply to any Discontinued Subsidiary".
(xiii) Section 5.03(a)(iv) is amended by deleting
in its entirety the phrase "except that (1) Lime SPV, the
SPV General Partner and the SPV Limited Partner may sell or
otherwise dispose of assets in the ordinary course of
business (including, without limitation, the sale or other
disposition of worn-out or obsolete equipment), (2) Lime
SPV, the SPV General Partner and the SPV Limited Partner may
sell or otherwise dispose of any assets to the Lenders (on
behalf of the Companies) or, in the event that the Lenders
have been given a right of first refusal to purchase such
assets and have declined to exercise such right, to any
other Person, (3) Lime SPV, the SPV General Partner and the
SPV Limited Partner may merge or consolidate with or into
any Person if the continuing or surviving entity is Lime
SPV, the SPV General Partner or the SPV Limited Partner, and
(4) so long as no Default" and substituting therefor the
phrase "except that so long as no Default".
(xiv) Section 5.03(a)(iv) is further amended by
deleting in its entirety the following proviso at the end
thereof:
provided, however, that any decision by the Lenders to
purchase assets from Lime SPV, the SPV General Partner
or the SPV Limited Partner pursuant to clause (2)
above shall be made by the Majority Lenders (provided,
that any Lender that does not concur in the decision
of the Majority Lenders shall not be obligated to
provide any funds for the purchase price of such
assets, unless such funds are otherwise available to
be borrowed by the Companies from such Lender pursuant
to the Revolving Credit Agreement and the Companies so
request such borrowing pursuant to the terms thereof);
(xv) Section 5.03(a)(v) is deleted in its entirety.
(c) Amendments to Article VI. Article VI shall be amended
as follows:
(i) Section 6.01(c) is amended by deleting in its
entirety from the first and second line thereof the
parenthetical phrase "(other than Lime SPV, SPV General
Partner and SPV Limited Partner)" and from the seventeenth
and eighteenth lines thereof the phrase "other than Lime
SPV, SPV General Partner and SPV Limited Partner".
(ii) Section 6.01(e) is amended by deleting the
references to "4.01(m)" and "4.01(o)".
(iii) Section 6.01(g) is amended by deleting in its
entirety the parenthetical phrase "(other than Lime SPV, SPV
General Partner and SPV Limited Partner)".
(iv) Section 6.01(h) is amended by deleting in its
entirety the parenthetical phrase "(other than Lime SPV, SPV
General Partner and SPV Limited Partner)".
(v) Section 6.01(i) is amended by deleting in its
entirety the parenthetical phrase "(other than Lime SPV, SPV
General Partner and SPV Limited Partner)" in each place in
which it appears therein.
(vi) Section 6.01(j) is amended by deleting in its
entirety the parenthetical phrase "(other than Lime SPV, SPV
General Partner and SPV Limited Partner)" in each place in
which it appears therein.
(vii) Section 6.01(l) is amended by deleting in its
entirety the parenthetical phrase "(other than Lime SPV, SPV
General Partner and SPV Limited Partner)".
(viii) Section 6.01(m) is amended by deleting in
its entirety the parenthetical phrase "(other than Lime SPV,
SPV General Partner and SPV Limited Partner)".
(ix) Section 6.01(o) is amended in its entirety to
read as follows:
"(o) at any time, the aggregate commitment for
advances (excluding any sublimit or commitment for the
issuance of letters of credit) under all revolving
credit facilities of the Companies having a revolving
term with an expiration date later than six calendar
months after such time shall be less than
$40,000,000,"
(x) Section 6.01 is amended by deleting in its
entirety each of the following subsections (q), (r) and (s):
"(q) an "Event of Default" shall have occurred
under the Note Purchase Agreement and the Notes (as
defined in the Note Purchase Agreement) shall have
been declared due and payable pursuant to the terms
thereof; or
(r) any event or condition (unless due to
Uncontrollable Forces (as defined in Article 4 of the
Master Common Facilities Agreement as in effect on the
Initial Funding Date)) affecting the Project (other
than the Project Kilns (as defined in Annex A to the
Project Intercreditor Agreement)) shall have occurred
that has had, or could reasonably be expected to have,
a material adverse effect on the operation of the
Black River Facility, and either (i) Lime SPV shall
not have commenced remedial action, within 60 days
after the occurrence of such event or condition, to
cure such event or condition in such manner as shall
be necessary to cause such adverse effect to cease to
be material (or to cause such expectation to cease to
be reasonable) or (ii) such remedial action shall not
have been completed within 90 days after the
occurrence of such event or condition, if reasonably
susceptible to cure within such period, or, if not
reasonably susceptible to cure within such period,
Lime SPV shall not be diligently pursuing the steps
necessary to effect such cure; or
(s) Lime shall have failed to make a Capacity
Payment (as defined in the Note Purchase Agreement)
and the Collateral Agent shall have received a written
notice from the Required Holders (as defined in the
Note Purchase Agreement) directing it to take action
to realize upon the Assigned Lime Contract Collateral
(as defined in Annex A to the Project Intercreditor
Agreement) as a result of such failure;"
(xi) Section 6.01 is amended by deleting the phrase
"clauses (a) through (f), inclusive, or (k) through (s)" in
its entirety and substituting therefor the new phrase
"clauses (a) through (f), inclusive, or (k) through (p)".
(d) Amendment to Article VII. Article VII shall be amended
as follows:
(i) Section 7.01 is amended by deleting in its
entirety each of the following subsections (q) and (r):
"(q) Ownership of Lime SPV, the SPV General
Partner and the SPV Limited Partner. Lime owns
directly 100% of all capital stock (other than one
share of Class B Common Stock of the SPV General
Partner that is owned by PruPower) of the SPV General
Partner and the SPV Limited Partner, and the SPV
General Partner and the SPV Limited Partner own
directly 100% of the partnership interests of Lime
SPV.
(r) Project Improvements. The real estate
improvements described in Exhibit A to the
Improvements Deed, dated as of August 1, 1994, between
Lime and Lime SPV, have been constructed for use by
the Project and were purchased with proceeds from the
issuance of the Construction Notes and with additional
funds made available to Lime SPV as equity
contributions."
(ii) Section 7.01 is further amended by adding as a
new subsection (q) the following:
"(q) The Dravo Parties shall fail on or prior
to February 15, 1996 to grant to the Collateral Agent
on behalf of the Lenders a first-priority lien and/or
security interest in the property described in
Schedule 7.01(q) under security agreements, mortgages
and other instruments satisfactory to Lenders,
together with such opinions and other requirements
deemed necessary by the Lenders.
SECTION 1.02. Amendments to Appendix A. Appendix A shall
be amended as follows:
(a) The definition "Consolidated Net Earnings" is amended
in its entirety to read as follows:
"Consolidated Net Earnings" shall mean the
consolidated net income (as determined in accordance with
GAAP), without giving effect to any gains (net of expenses
and taxes applicable thereto) in excess of losses resulting
from the sale, conversion or other disposition of capital
assets (i.e., assets other than current assets), any gains
resulting from the write-up of assets, any extraordinary
gains (except for gains resulting from the use of net
operating loss carryforwards), any items of gain (or plus
any items of loss) that were included in determining such
consolidated net income and were not realized in the
ordinary course of business (whether or not classified as
"ordinary" by GAAP), any equity of such Person or any of its
Subsidiaries in the unremitted earnings of any corporation
which is not a Subsidiary, any earnings of any Person
acquired by such Person or any of its Subsidiaries through
purchase, merger or consolidation or otherwise for any year
prior to the year of acquisition, or any deferred credit
representing the excess of equity in any of its Subsidiaries
at the date of acquisition over the cost of the investment
in such, all determined in accordance with GAAP; provided,
however, that any increase in earnings arising out of the
recognition after December 31, 1994 of a deferred tax asset
in an amount not to exceed $27,000,000 in the aggregate and
any deduction from earnings or equity from the write off of
any prepaid pension assets in an amount not to exceed
$27,000,000 in the aggregate shall not be taken into account
in determining Consolidated Net Earnings.
(b) The definition "Discontinued Operations Fixed Charge
Coverage Ratio" is amended by deleting such definition in its
entirety.
(c) The definition "Fixed Charge Coverage Ratio" is amended
in its entirety to read as follows:
"Fixed Charge Coverage Ratio" shall mean, for any
fiscal quarter of Dravo, the ratio obtained by dividing
(a) EBITDAR of Dravo and its Subsidiaries for the three
immediately preceding fiscal quarters of Dravo and the
quarter of determination (the "Relevant Preceding Period")
by (b) the sum of: (i) the amount of interest paid or
accrued (including all imputed or capitalized interest) on
all Debt of Dravo and its Subsidiaries during the Relevant
Preceding Period (including all imputed interest on
Capitalized Lease Obligations), plus (ii) all installments
of Funded Debt (excluding the indebtedness incurred by the
Companies under the Revolving Credit Agreement) scheduled to
become due in the immediately succeeding four fiscal
quarters of Dravo (the "Relevant Succeeding Period"), plus
(iii) the regularly scheduled dividends to be paid to the
holders of the Shares or any other preferred stock of Dravo
or any of its Subsidiaries during the Relevant Succeeding
Period, plus (iv) the regularly scheduled redemptions of the
Shares or any other preferred stock, if any, of Dravo or any
of its Subsidiaries to be made by Dravo during the Relevant
Succeeding Period, plus (v) net rentals as reflected on the
most recently delivered financial statements.
(d) The definition "Funded Debt" is amended in its entirety
to read as follows:
"Funded Debt shall mean, without duplication, any:
(i) obligation payable more than one year from
the date of the creation thereof, which under GAAP is
shown on the balance sheet as a liability (including
without limitation Capitalized Lease Obligations and
excluding reserves for deferred income taxes and other
reserves to the extent that such reserves do not
constitute an obligation), plus
(ii) the aggregate amount of indebtedness of
public authorities incurred in connection with
industrial revenue bond and pollution control revenue
bond financings of plant facilities or equipment to be
leased to or operated by such Person, plus
(iii) all off-balance sheet indebtedness
(including without limitation guaranty obligations and
indebtedness incurred in connection with
sale/leaseback transactions), other than obligations
under operating leases, plus
(iv) all Guarantees, endorsements (other than
endorsements of negotiable instruments for collection
in the ordinary course of business) and other
contingent liabilities (whether direct or indirect) in
connection with the obligations, stock or dividends of
any Person, plus
(v) obligations under any other contract in
connection with any borrowed money which in effect is
substantially equivalent to a Guaranty."
(e) The definition "Notes" is amended by deleting in its
entirety the phrase "the Additional Notes".
(f) The definition "Operative Documents" is amended by
deleting in its entirety the phrase "the SPV Stock Pledge Agreement,
the SPV Partner Pledge Agreement, the Project Intercreditor
Agreement, the Assignment and Security Agreement," immediately
following the phrase "the Basic Mortgage," and inserting the
punctuation and phrase ", the Dravo Guaranty" immediately following
the phrase "the Environmental Indemnity Agreement".
(g) The definition "Security Documents" is amended by
deleting in its entirety the phrase "the SPV Stock Pledge Agreement,
the SPV Partner Pledge Agreement, the Assignment and Security
Agreement," immediately following the phrase "the Basic Mortgage,".
(h) The following new definitions shall be inserted in
alphabetical order in Appendix A:
"Consolidated Net Worth" shall mean, for any Person,
the Consolidated stockholders' equity, as defined in
accordance with GAAP, plus the book value of the Shares,
plus charges for additional minimum liabilities related to
qualified pension plans, provided however, that any increase
in Consolidated Net Worth arising out of the recognition
after December 31, 1994 of a deferred tax asset in an amount
not to exceed $27,000,000 in the aggregate and any deduction
in Consolidated Net Worth from the write off of any prepaid
pension assets in an amount not to exceed $27,000,000 in the
aggregate shall not be taken into account in determining
Consolidated Net Worth.
"Dravo Guaranty" shall mean that certain Guaranty
Agreement dated as of December 31, 1995, executed in favor
of the Collateral Agent on behalf of the Lenders, as it may
be amended, modified or supplemented from time to time in
accordance with its terms.
"EBITDAR" shall mean, for any period, Consolidated Net
Earnings from Continuing Operations adjusted by adding
thereto the amount of all amortization of intangibles,
interests, taxes (after taking into account the use of net
operating loss carryforwards), depreciation and rents that
were deducted in arriving at Consolidated Net Earnings for
such period.
"Effective Date" shall mean October 1, 1995.
(i) Each of the following definitions shall be deleted in
its entirety:
"Additional Notes" shall mean those certain Revolving
Notes attached as Exhibits X-0, X-0, X-0 and A-8 to the
Revolving Credit Agreement, executed by each of Basic and
Lime in favor of each of the Lenders, respectively, and each
Note delivered in substitution or exchange for any such
Note.
"Assignment and Security Agreement" means the
Assignment and Security Agreement, dated as of August 1,
1994, by Lime in favor of the Collateral Agent, as the same
may be amended, modified or supplemented from time to time
in accordance with its terms.
"Black River Facility" shall have the meaning set
forth in Annex A to the Project Intercreditor Agreement.
"Construction Notes" shall have the meaning set forth
in the Note Purchase Agreement.
"Deposit and Disbursement Agreement" shall mean the
Deposit and Disbursement Agreement, dated as of August 1,
1994, among Wilmington Trust Company, as Collateral Agent,
Wilmington Trust Company, as Disbursement Agent, and Lime
SPV, as said Agreement may be amended, modified or
supplemented from time to time in accordance with the terms
thereof and the terms of the other Transaction Documents.
"Financing Documents" shall have the meaning set forth
in Annex A to the Project Intercreditor Agreement.
"Initial Funding Date" shall have the meaning set
forth in the Note Purchase Agreement.
"Lime SPV" shall mean Dravo Black River Limited
Partnership, a Delaware limited partnership.
"Master Common Facilities Agreement" shall mean that
certain Master Common Facilities Agreement, dated as of
August 1, 1994, between Lime and Lime SPV, as said Agreement
may be amended, modified or supplemented from time to time
in accordance with the terms thereof and the terms of the
other Transaction Documents.
"Note Purchase Agreement" shall mean that certain Note
Purchase Agreement, dated as of August 1, 1994, by and
between Lime SPV and PruPower, as said Agreement may be
amended, modified or supplemented from time to time in
accordance with the terms thereof and the terms of the other
Transaction Documents.
"Project" shall have the meaning set forth in Annex A
to the Project Intercreditor Agreement.
"Project Intercreditor Agreement" shall mean the
Intercreditor Agreement, dated as of August 1, 1994, by and
among Wilmington Trust Company, PruPower, the Collateral
Agent, FAB, PNC, BAI and Prudential, as consented to and
acknowledged by Lime and Lime SPV, as such Agreement may be
amended, modified or supplemented from time to time in
accordance with its terms.
"Prudential" shall mean The Prudential Insurance
Company of America, acting through Prudential Capital Group,
and its successors and assigns.
"PruPower" shall mean The Prudential Insurance Company
of America, as purchaser of the Construction Notes of Lime
SPV pursuant to the Note Purchase Agreement, and its
successors and assigns.
"SPV General Partner" shall mean DBR General Inc., a
Delaware corporation.
"SPV Limited Partner" shall mean Dravo Black River
Limited Inc., a Delaware corporation.
"SPV Partner Pledge Agreement" shall mean the Partner
Security Agreement, dated as of August 1, 1994, by the SPV
General Partner and the SPV Limited Partner in favor of the
Collateral Agent, as it may be amended, modified or
supplemented from time to time in accordance with its terms.
"SPV Stock Pledge Agreement" shall mean the Stock
Pledge Agreement, dated as of August 1, 1994, by Lime in
favor of the Collateral Agent, as it may be amended,
modified or supplemented from time to time in accordance
with its terms.
"Transaction Documents" shall have the meaning set
forth in Annex A to the Project Intercreditor Agreement.
"Unavailable Cash" shall mean any and all Project
Revenues (as defined in Annex A of the Project Intercreditor
Agreement) that, pursuant to the terms of the Deposit and
Disbursement Agreement or any other Transaction Document,
are not available for distribution to Lime (other than any
amounts paid for Debt Service (as defined in Annex A to the
Project Intercreditor Agreement) and Operation and
Maintenance Costs (as defined in Article 4 of the Master
Common Facilities Agreement as in effect on the Initial
Funding Date)); provided, however, that Unavailable Cash
shall include any expenditures made by Lime SPV for Capital
Additions or Modifications (as defined in Article 4 of the
Master Common Facilities Agreement as in effect on the
Initial Funding Date), or for any adjustments, alterations
or other physical changes to the Project of any kind
whatsoever, in excess of $1,500,000 in any calendar year to
the extent that such excess was not funded with (i)
additional Debt of Lime SPV or (ii) any equity contribution
by Lime to Lime SPV made in accordance with Section
5.03(a)(ii) of the Override Agreement.
ARTICLE II
FIFTH AMENDMENT TO
REVOLVING CREDIT AGREEMENT
SECTION 2.01. Amendments to Revolving Credit Agreement. The
Revolving Credit Agreement shall be, effective as of the date hereof
and subject to the satisfaction of the conditions precedent set
forth in Section 4.01 hereof, amended as follows:
(a) Amendments to Article I. Article I shall be amended
as follows:
(i) Section 1.1 is amended in its entirety to read
as follows:
"SECTION 1.1. Revolving Line of Credit Facility.
(a) Commitment. Subject to all the terms and conditions
hereof, including without limitation Section 1.3, and so
long as there shall exist no Event of Default or Default,
Lenders, subject to the terms and conditions hereof, agree
to lend to Borrowers such sums as Borrowers may request,
from time to time, and at any time, on a revolving basis
until July 31, 1997 (as such date may be extended pursuant
to Section 1.9, the "Maturity Date"), provided that, after
giving effect to the making of any such loans and the
issuance of any Letter of Credit, the aggregate principal
amount of outstanding revolving line of credit loans
(including any loans deemed to be made pursuant to
Section 11.2 as a result of a drawing on any Letter of
Credit) plus the Stated Amount of all outstanding Letters of
Credit (calculated after giving effect to any such drawing)
made pursuant to this Agreement shall not at any time exceed
the sum of SIXTY-FIVE MILLION AND NO/100THS DOLLARS
($65,000,000.00), and provided further that the aggregate
principal amount of outstanding revolving line of credit
loans (including any loans deemed to be made pursuant to
Section 11.2 as a result of a drawing on any Letter of
Credit) plus the Stated Amount of all outstanding Letters of
Credit (calculated after giving effect to any such drawing)
made by a Lender pursuant to this Agreement shall not exceed
the maximum limitation for each Lender shown opposite the
name of each Lender and designated the "Revolving Line of
Credit and Letters of Credit Facilities Combined" on
Schedule I attached hereto and made a part hereof
(calculated after giving effect to any termination of a
Lender's Commitment (as defined in Section 1.9) pursuant to
Section 1.9). All such revolving loans shall be referred to
herein as the "Revolving Line of Credit". Subject to the
terms and conditions hereof, advances under the Revolving
Line of Credit, with respect to a Base Rate Loan, shall be
equal to at least ONE HUNDRED THOUSAND AND NO/100THS DOLLARS
($100,000.00) or an integral multiple thereof and with
respect to a Eurodollar Rate Loan, shall be equal to at
least FIVE MILLION AND NO/100THS DOLLARS ($5,000,000.00) or
an integral multiple of $1,000,000. Subject to all the
terms and conditions hereof, Borrowers may borrow, repay and
reborrow at any time or from time to time from the date
hereof to but excluding July 31, 1997 (unless extended in
writing pursuant to Section 1.9) or the termination of the
revolving aspects of this Agreement with respect to advances
pursuant to Section 8.1, whichever is earlier.
(b) Conversion to Term Loan.
(i) The Borrowers may, on the Maturity Date and so
long as no Event of Default has occurred and is continuing,
elect to convert (the "Term Loan Option") all or a portion
of the Revolving Line of Credit outstanding on the Maturity
Date in an amount not to exceed SEVENTEEN MILLION AND
NO/100THS DOLLARS ($17,000,000.00) and in no event less than
$10,000,000 (the "Converted Amount") into a Term Loan (the
"Term Loan").
(ii) If the Borrowers exercise the Term Loan Option,
interest on the Term Loan shall accrue at a rate per annum
as specified in Section 9.3. The Term Loan shall be repaid
in 20 substantially equal quarterly installments, due and
payable on the last day of January, April, July and October
of each year and shall be due and payable in full on
July 31, 2002.
(iii) The notice, if any, of the exercise of the Term
Loan Option shall be submitted by the Borrowers in writing
to the Agent at least 60 Business Days prior to the Maturity
Date, and shall specify the portion of the Revolving Line of
Credit for which the Term Loan Option is being exercised and
the initial Interest Period, if any. Any notice shall be
irrevocable once given.
(iv) On the date of conversion to a Term Loan, the
Borrowers shall pay to Lenders in immediately available
funds a fee equal to .25 of 1% of the Converted Amount.
Such fee shall be shared pro rata by Lenders.
(c) Notes.
(i) Revolving Notes. All sums advanced pursuant to
the Revolving Line of Credit shall be payable, as to both
principal and interest, and shall bear interest, at the rate
and in the manner provided herein and in the Revolving Notes
of Borrowers, copies of which are attached hereto, marked
Exhibits X-0, X-0 xxx X-0, and expressly made a part hereof
as though fully set forth herein (the "Revolving Notes").
Borrower shall execute and deliver to Lenders the Revolving
Notes in an aggregate sum of SIXTY-FIVE MILLION AND
NO/100THS ($65,000,000.00) DOLLARS; provided, however, the
liability of Borrowers to Lenders for the principal
indebtedness of the Revolving Line of Credit shall be
limited to the net principal amount actually advanced by
Lenders to Borrowers under the Revolving Notes. All
advances under the Revolving Note shall be evidenced by
Lenders' records with respect to such advances, which
records shall be prime facie evidence as to the amount at
any time due such Lender hereunder. All advances under the
Revolving Line of Credit shall be made pursuant to the
procedures set forth hereinbelow in Article IX. Borrowers
irrevocably authorize Lenders to disburse any Revolving Line
of Credit loans made hereunder for the account of the
Borrowers either to Lime or to Dravo Natural Resources
Company ("DNRC") pursuant to the DNRC Agency Agreement.
(ii) Term Notes. All sums advanced pursuant to the
Term Loan Option shall be payable, as to both principal and
interest, and shall bear interest, at a rate and in the
manner provided herein and the Term Notes, executed and
delivered by each of the Borrowers and in form and substance
satisfactory to each of the Lenders (the "Term Notes").
(ii) The fourth sentence of Section 1.3 is amended by
deleting the date "April 30, 1996" and substituting therefor the
date "July 31, 1997".
(iii) The last sentence of Section 1.5 is amended by deleting
the date "June 30" and substituting therefor the date "July 31".
(iv) The first sentence of Section 1.6 is amended by
deleting the figure "$75,000,000" and substituting therefore the
figure "$65,000,000".
(v) Section 1.9(a) is amended in its entirety to read as
follows:
"(a) At least 10 but not more than 60 days
before each May 31, commencing May 31, 1996, the
Borrowers may, by delivering a written request to the
Agent (each such request being irrevocable), request
that each Lender extend for one year the Maturity Date
with respect to such Lender's Revolving Line of Credit
commitment and commitment to issue (or cause to be
issued) Letters of Credit (such commitments referred
to herein collectively, with respect to each Lender,
as such Lender's "Commitment"). The Agent shall, upon
its receipt of such a request, promptly notify each
Lender thereof, and request that each Lender promptly
advise the Agent of its approval or rejection of such
request."
(b) Amendment to Article V. Section 5.1(b)(1) is amended
by deleting the phrase "and in the Note Purchase Agreement"
immediately following the phrase "the representations and warranties
of the Dravo Parties set forth herein".
(c) Amendments to Article IX. Article IX shall be amended
as follows:
(i) Section 9.1 is amended by deleting in its
entirety each of the following subsections (c), (d)
and (e):
(c) Notwithstanding subsections (a) and (b)
above, in the event that any Lender does not agree to
provide any funds (to the extent that such funds are
not otherwise available to be borrowed by the
Borrowers from such Lender pursuant to this Agreement)
for (i) the cure of any defaults pursuant to Article
6 of the Project Intercreditor Agreement or (ii) the
purchase price of any assets sold by Lime SPV in
connection with the exercise by the Lenders of any
right of first refusal pursuant to Section
5.03(a)(iv)(2) of the Override Agreement, the Lenders
that agree to provide such funds (the "Funding
Lenders") shall advance such funds on a pro rata
basis, based on the proportion of each Funding
Lender's Commitment to the aggregate amount of the
Commitments of the Funding Lenders. So long as no
Event of Default shall have occurred and be
continuing, notwithstanding Section 11.7, any amounts
of principal prepaid or repaid by the Borrowers
pursuant to this Agreement shall be applied, first, to
the repayment of all advances made by the Funding
Lenders pursuant to clauses (i) and (ii) above (on a
pro rata basis based on the amount of advances made by
each of the Funding Lenders) and second, to the
repayment of all other amounts owing to the Lenders
hereunder (on a pro rata basis in accordance with
their respective percentages set forth in subsection
(a) above), in each case otherwise in accordance with
this Agreement. Upon the occurrence and during the
continuance of an Event of Default, any amounts of
principal prepaid or repaid by the Borrowers or
otherwise realized pursuant to any Security Document
shall be applied on a pro rata basis in accordance
with the percentages of the Lenders set forth in
subsection (a) above. Any funds provided by a Funding
Lender pursuant to clauses (i) and (ii) above shall be
deemed to be a Revolving Line of Credit advance made
by such Lender to the Borrowers, and the Borrowers
shall be obligated to repay such advances pursuant to
the terms hereof. In furtherance of the foregoing,
any purchase of assets pursuant to clause (ii) above
shall be made on behalf of Lime, and Lime shall be the
legal and beneficial owner of such assets.
(d) In connection with any advances made by
the Funding Lenders pursuant to subsection (c) above,
the Companies shall execute such agreements, documents
and instruments (including, without limitation,
additional promissory notes), and take such further
actions, as any Funding Lender may reasonably request.
(e) Notwithstanding anything to the contrary
contained herein, in order to effect the cure of any
default pursuant to Article 6 of the Project
Intercreditor Agreement, the Lenders shall have the
right (but not the obligation) to advance funds on
behalf of the Borrowers and to make any payments
directly to any Persons (other than the Borrowers) to
the extent necessary to cure such default.
(ii) Section 9.2 is amended in its entirety to read
as follows:
"SECTION 9.2. Manner of Revolving Line of
Credit Participation. Unless otherwise specifically
provided in this Agreement, Agent shall receive from
Borrowers at least three business days', with respect
to Eurodollar Rate Loans, and one business day, with
respect to Base Rate Loans, prior written, telex,
telecopier or telegraphic notice of Borrowers'
intention to borrow hereunder, specifying the date,
the total amount of the loan that Borrowers request
under this Agreement, the type of loan and if a
Eurodollar Rate Loan, the Interest Period therefor.
Upon receipt of such request from Borrowers, Agent
shall forthwith give Lenders (excluding itself if
Agent is also a Lender) telex, telecopier or
telegraphic notice of Borrower's request and shall
specify the amount of each such Lender's proposed
participation in the loan based on the information
each Lender has furnished Agent with respect to the
outstanding Revolving Line of Credit loans made by
each Lender and the outstanding Letters of Credit
applicable to each Lender. Unless Lenders correct
said information prior to funding, which correction
shall be confirmed in writing by such Lender to Agent,
the Lenders shall deposit such amount, or cause such
amount to be deposited, with Agent in lawful money of
the United States of America in immediately available
funds by 11:00 A.M. (Central time) on the date of the
proposed loan by wire transfer to Agent in the case of
each Lender that is not Agent, and by deposit with
Agent in immediately available funds in the case of a
Lender that is also the Agent, and Agent shall
thereafter deposit in Borrowers' or DNRC's account or
accounts at Agent the requested funds by 11:30 A.M.
(Central time) on the date of the proposed loan."
(iii) Article IX is further amended by adding
the following new Sections 9.3 and 9.4 at the end thereof.
SECTION 9.3. Interest. (a) Each Borrower
shall, and hereby jointly and severally agrees to, pay
interest on the unpaid principal amount of each loan
from the date of such loan until such principal is
paid in full at the applicable rate set forth below.
(b) Rate of Interest. All loans shall bear
interest on the unpaid principal amount thereof from
the date such loans are made until paid in full,
except as otherwise provided in Section 9.3(e), as
follows:
(i) If a Eurodollar Rate Loan, at a rate
per annum equal to the sum of (a) the Eurodollar
Rate determined for the applicable Interest
Period plus (b) the Interest Rate Margin; and
(ii) If a Base Rate Loan, at a rate per
annum equal to the sum of (A) the Base Rate plus
(B) the Interest Rate Margin.
The applicable basis for determining the rate of
interest on the loans shall be selected at the time a
borrowing notice or a conversion/continuation notice,
as contemplated by subsection (d) below, is delivered
by the Borrowers to the Agent. If on any day any loan
is outstanding with respect to which notice has not
been timely delivered to the Agent in accordance with
the terms of this Agreement specifying the basis for
determining the rate of interest on that day, then for
that day that loan shall be deemed to be a Base Rate
Loan.
(c) Interest Payments.
(i) Interest accrued on each Base Rate
Loan shall be payable in arrears (A) on each
Interest Payment Date applicable to such Loan,
(B) upon the prepayment thereof in full or in
part, (C) upon conversion thereof to a
Eurodollar Rate Loan, and (D) if not theretofore
paid in full, at maturity (whether by
acceleration or otherwise) of such Base Rate
Loan.
(ii) Interest accrued on each Eurodollar
Rate Loan shall be payable in arrears (A) on
each Interest Payment Date applicable to such
Loan, (B) upon the payment or prepayment thereof
in full or in part, and (C) if not theretofore
paid in full, at maturity (whether by
acceleration or otherwise) of such Eurodollar
Rate Loan.
(d) Conversion or Continuation.
(i) The Borrowers shall have the option
(A) to convert at any time (1) all or any part
of outstanding Base Rate Loans to Eurodollar
Rate Loans or (2) all or any part of Eurodollar
Rate Loans to Base Rate Loans; or (B) to
continue all or any part of outstanding
Eurodollar Rate Loans, having Interest Periods
which expire on the same date as Eurodollar Rate
Loans, and the succeeding Interest Period of
such continued Loans shall commence on such
expiration date; provided, however, (I) no
portion of any such outstanding Loan may be
continued as (and shall be immediately converted
into a Base Rate Loan), or be converted into, a
Eurodollar Rate Loan (x) if the continuation of,
or the conversion into, would violate any of the
provisions of Section 9.4 or (y) if an Event of
Default has occurred and is continuing, and
(II) if the option set forth in clause (B) of
this Section is not exercised, in accordance
with the terms of this Section 9.3, in respect
of a Eurodollar Rate Loan, such Eurodollar Rate
Loan shall convert automatically into a Base
Rate Loan on the final date of the applicable
Interest Period.
(ii) To convert or continue a loan, the
Borrowers shall deliver a written notice to the
Agent at least three business days in advance of
the proposed conversion/continuation date. Upon
receipt of such request from Borrowers, the
Agent shall forthwith give such notice to each
Lender. Such notice shall specify the proposed
conversion/continuation date (which shall be a
business day), the principal amount to be
converted/continued, whether such borrowing
shall be converted and/or continued, if
applicable, and the requested Interest Period.
Any notice for conversion to, or continuation
of, a loan shall be irrevocable, and the
Borrowers shall be bound to convert or continue
in accordance therewith.
(e) Certain Defined Terms. The following
capitalized terms used in this Agreement shall have
the following meanings:
"Base Eurodollar Rate" means, with respect to
any Interest Period, the interest rate per annum
(rounded upwards, if necessary, to the next 1/16 of
1%) determined by the Reference Bank to be the rate
per annum at which deposits in immediately available
United States dollars are offered to the Reference
Bank in the London interbank market at approximately
11:00 a.m. (London time) on the date two (2) Business
Days prior to the first day of the applicable Interest
Period for a period equal to such Interest Period and
in an amount substantially equal to the amount of the
Eurodollar Rate Loan requested by the Borrowers for
such Interest Period.
"Base Rate" means, for any period, a fluctuating
interest rate per annum equal to the higher of (i) the
rate per annum as shall be established by the Agent
from time to time, as the Agent's base rate and
(ii) the sum of (A) one-half of one percent (0.5%) and
(B) the Federal Funds Rate.
"Base Rate Loans" means all loans which bear
interest at a rate determined by reference to the Base
Rate.
"Eurodollar Rate" means, with respect to any
Interest Period applicable to a Eurodollar Rate Loan,
an interest rate per annum obtained by dividing (i)
the Base Eurodollar Rate applicable to that Interest
Period by (ii) a percentage equal to one hundred
percent (100%) minus the Eurodollar Reserve
Percentage.
"Eurodollar Rate Loans" means those loans which
bear interest at a rate determined by reference to the
Eurodollar Rate.
"Eurodollar Reserve Percentage" means, for any
day, that percentage which is in effect on such day,
as prescribed by the Federal Reserve Board for
determining the maximum reserve requirement
(including, without limitation, any emergency,
supplemental or other marginal reserve requirement)
for a member bank of the Federal Reserve System in New
York, New York in respect of "Eurocurrency
Liabilities" as set forth in Regulation D of the
Federal Reserve Board (or in respect of any other
category of liabilities which includes deposits by
reference to which the interest rate on Eurodollar
Rate Loans is determined).
"Federal Funds Rate" means an interest rate per
annum equal to the rate per annum at which the
Reference Bank, in its sole discretion, may acquire
federal funds in the interbank term federal funds
market in New York City through brokers of recognized
standing.
"Interest Payment Date" means (i) with respect
to any Base Rate Loan, the last day of each calendar
month commencing on the first such day following the
making of such Base Rate Loan, and (ii) with respect
to any Eurodollar Rate Loan, the last day of each
Interest Period applicable to such Loan.
"Interest Rate Margin" means, as of any date, a
rate equal to, with respect to any Eurodollar Rate
Loan, 2.00% per annum and with respect to any Base
Rate Loan, 0% per annum.
"Reference Bank" means the Agent.
SECTION 9.4. Special Provisions Governing
Eurodollar Rate Loans. With respect to Eurodollar
Rate Loans:
(a) Determination of Interest Period. The
period between the date on which each Eurodollar Rate
Loan is made and the date of payment in full of such
Loan shall be divided into successive periods, each
such period being an "Interest Period" for such Loan.
The initial Interest Period for each Loan shall begin
on the date of such Loan and end on the last day of
such period as selected by the Borrowers, and
thereafter, each subsequent Interest Period for such
Loan shall begin on the last day of the immediately
preceding Interest Period for such Loan and end on the
last day of such period as selected by the Borrowers.
The duration of each such Interest Period for each
Eurodollar Rate Loan shall be one, two or three
months, provided, however, that:
(i) the duration of any Interest Period
for any Loan that commences before the repayment
date for such Loan and otherwise ends after such
repayment date shall end on such repayment date;
(ii) In the case of immediately
successive Interest Periods applicable to a
borrowing of Eurodollar Rate Loans, each
successive Interest Period shall commence on the
day on which the next preceding Interest Period
expires;
(iii) If any Interest Period would
otherwise expire on a day which is not a
business day, such Interest Period shall be
extended to expire on the next succeeding
business day unless such next succeeding
business day would fall in the next calendar
month, in which case such Interest Period shall
end on the next preceding Business Day;
(iv) Borrowers may not select an Interest
Period as to any Eurodollar Rate Loan if such
Interest Period terminates later than the
Maturity Date; and
(v) There shall be no more than ten
Interest Periods in effect at any one time.
(b) Interest Rate Unascertainable, Inadequate
or Unfair. In the event that at least one business
day before the commencement of an Interest Period, a
Lender determines that adequate and fair means do not
exist for ascertaining the applicable interest rates
by reference to which the Eurodollar Rate, then being
determined is to be fixed, then such Lender shall
forthwith give notice thereof to the Borrowers and the
Agent, whereupon (until such Lender notifies the
Borrowers and the Agent that the circumstances giving
rise to such suspension no longer exist, which such
Lender shall do promptly after it determines that such
circumstances no longer exist) the right of all
Borrowers to elect to have loans from such Lender bear
interest based upon the Eurodollar Rate shall be
suspended and all outstanding Eurodollar Rate Loans
from such Lender shall be converted into Base Rate
Loans on the last day of the then current Interest
Period therefor, notwithstanding any prior election by
the Borrowers to the contrary.
(c) Illegality.
(i) If at any time a Lender determines
(which determination shall, absent manifest
error, be final and conclusive and binding upon
all parties) that the making or continuation of
any Eurodollar Rate Loan has become, as a result
of any event occurring after the date hereof (A)
unlawful or (B) impermissible by compliance by
such Lender with any law, governmental rule,
regulation or order of any governmental
authority (whether or not having the force of
law and whether or not failure to comply
therewith would be unlawful or would result in
costs or penalties), then such Lender may give
notice of that determination to the Agent and
the Borrowers.
(iii) When notice is given by a Lender
under this Section, (A) the Borrowers' right to
request from such Lender and such Lender's
obligation, if any, to make Eurodollar Rate
Loans shall be immediately suspended, and such
Lender shall make a Base Rate Loan in lieu of
any requested Eurodollar Rate Loans (on which
such Base Rate Loan the interest and principal
shall be payable contemporaneously with the
related Eurodollar Rate Loans of the other
Lenders) and (B) if Eurodollar Rate Loans are
then outstanding, the Borrowers shall
immediately, or if permitted by applicable law,
no later than the last date permitted thereby,
upon at least one business day's prior notice to
such Lender, convert each such Loan into a Base
Rate Loan (on which such Base Rate Loan the
interest and principal shall be payable
contemporaneously with the related Eurodollar
Rate Loans of the other Lenders).
(iii) If at any time after a Lender gives
notice under this Section, such Lender
determines that it may lawfully make Eurodollar
Rate Loans, such Lender shall promptly give
notice of that determination to the Borrowers
and the Agent. The Borrowers' right to request,
and such Lender's obligation, if any, to make
Eurodollar Rate Loans shall thereupon be
restored.
(d) Compensation. In addition to all amounts
required to be paid by the Borrowers pursuant to
Section 9.3, the Borrowers shall jointly and severally
compensate each Lender, within thirty days of written
notice, for all losses, expenses and liabilities
(including, without limitation, any loss or expense
incurred by reason of the liquidation or reemployment
of deposits or other funds acquired by each such
Lender to fund or maintain such Lender's Eurodollar
Rate Loans to the Borrowers) which such Lender may
sustain (i) if for any reason not the fault of such
Lender, a loan, conversion into or continuation of
Eurodollar Rate Loans does not occur on a date
specified therefor in any notice given by the
Borrowers or a successive Interest Period does not
commence after notice therefor is given, or (ii) if
for any reason any Eurodollar Rate Loan is prepaid on
a date which is not the last day of the applicable
Interest Period, or (iii) as a consequence of a
required conversion of a Eurodollar Rate Loan to a
Base Rate Loan as a result of any of the events
indicated in Section 9.4, or (iv) as a consequence of
any failure by the Borrowers to repay Eurodollar Rate
Loans when required by the terms of this Agreement.
Such Lender's written notice shall set forth in
reasonable detail the basis for such compensation and
shall be conclusive as to the amount of compensation
due to such Lender, absent manifest error.
(e) Exhibits. Exhibits X-0, X-0 xxx X-0 to
the Revolving Credit Agreement are deleted in their
entirety and Exhibits X-0, X-0 and A-3 attached hereto
are substituted therefor, respectively.
(f) Amendments to Article XII. Article XII
shall be amended by adding the following Section 12.3:
"Section 12.3 Documentation Agent. (a) BAI
shall act as Documentation Agent and in such
capacity will advise and consult with the Agent,
from time to time on an as needed basis and as
may be mutually satisfactory to the Agent and
BAI, including with respect to the amendment of
the Operative Documents.
(b) The Documentation Agent shall have
no duties or responsibilities other than those
expressly set forth in clause (a) above.
Neither the Documentation Agent nor any of its
officers, directors, employees or agents shall
be liable for any action taken or omitted by it
or them as such hereunder or under any other
Operative Document or in connection herewith or
therewith, unless caused by its or their gross
negligence or willful misconduct. The duties of
the Documentation Agent shall be mechanical and
administrative in nature. The Documentation
Agent shall not have by reason of this Agreement
or any other Operative Document a fiduciary
relationship in respect of any Lender or the
holder of any Note; and nothing in this
Agreement or any other Operative Document,
express or implied, is intended to or shall be
so construed as to impose upon the Documentation
Agent any obligations or liabilities in respect
of this Agreement or any other Operative
Document except as expressly set forth above.
ARTICLE III
AMENDMENTS TO INTERCREDITOR AGREEMENT
SECTION 3.01. Amendments to Intercreditor Agreement. The
Intercreditor Agreement shall be, effective as of the date hereof
and subject to the satisfaction of the conditions precedent set
forth in Section 4.01 hereof, amended as follows:
(a) Amendments to Section 1. Section 1 shall be amended
by deleting in its entirety each of the following subsections (j),
(k), (l), (m), (n) and (o):
"(j) Notwithstanding the terms of the Override
Agreement or any Transaction Document, in the event that the
Collateral Agent receives notice pursuant to the first
sentence of Article 5 of the Project Intercreditor
Agreement, the Collateral Agent shall take actions pursuant
to said Article 5 only at the direction of the Majority
Lenders; provided, however, that any Secured Party that does
not concur in the directions of the Majority Lenders shall
not be obligated to provide any funds for the purchase price
of the "Existing Creditors Call Option" (as defined in said
Article 5), unless such funds are otherwise available to be
borrowed by the Companies from such Secured Party pursuant
to the Revolving Credit Agreement and the Companies so
request such borrowing pursuant to the terms thereof.
(k) Notwithstanding the terms of the Override
Agreement or any Transaction Document, the Collateral Agent
shall take actions pursuant to Article 6 of the Project
Intercreditor Agreement only at the direction of the
Majority Lenders; provided, however, that any Secured Party
that does not concur in the directions of the Majority
Lenders shall not be obligated to provide any funds for the
cure of any defaults pursuant to said Article 6, unless such
funds are otherwise available to be borrowed by the
Companies from such Secured Party pursuant to the Revolving
Credit Agreement and the Companies so request such borrowing
pursuant to the terms thereof.
(l) Notwithstanding the terms of the Override
Agreement or any Transaction Document, the Collateral Agent
shall take actions pursuant to Section 3.3(vi) of the
Project Intercreditor Agreement only at the direction of the
Majority Lenders.
(m) Notwithstanding the terms of the Override
Agreement or any Transaction Document, the Collateral Agent
shall agree to amendments of (i) Article III of the Master
Common Facilities Agreement only with the consent or at the
direction of all of the Secured Parties, (ii) any provisions
in the Master Common Facilities Agreement regarding the use
or disposition of any Collateral only with the consent or at
the direction of all of the Secured Parties, and (iii) any
other provisions in the Master Common Facility Agreement
only with the consent or at the direction of the Majority
Lenders.
(n) The Secured Parties hereby consent to the
execution and delivery by the Collateral Agent of the
following documents on or before the Initial Funding Date:
(i) amendments to the Basic Mortgage and the Lime Mortgages,
in substantially the form of Exhibits X-0, X-0, X-0 and B-4
attached to the Amendment Agreement, dated as of August 1,
1994, among the Dravo Parties, the Lenders and FAB, as agent
for the Lenders; (ii) the Mortgage Subordination Agreement,
dated as of August 1, 1994, by and between the Collateral
Agent and Lime SPV; (iii) the Assignment and Security
Agreement; (iv) the SPV Stock Pledge Agreement; (v) the SPV
Partner Pledge Agreement; (vi) UCC-1 financing statements
with respect to the collateral described in the Assignment
and Security Agreement, the SPV Partner Pledge Agreement and
the amendments described in clause (i) above; (vii) a Deed
of Partial Release (the "Release") with respect to certain
improvements located on the Site (as defined in the Note
Purchase Agreement) that will be owned by Lime SPV; and
(viii) UCC-3 financing statement amendments with respect to
the property described in the Release and in the Warranty
Xxxx of Sale and Assignment, dated as of August 1, 1994, by
Lime to Lime SPV.
(o) Each Secured Party shall have the right, but not
the obligation, to provide funds for the purchase price of
the "Existing Creditors Call Option" (as defined in Article
5 of the Project Intercreditor Agreement) in an amount equal
to such Secured Party's Percentage (as defined in Section
9.1(a) of the Revolving Credit Agreement) of such purchase
price (or such lesser or greater amount as such Secured
Party may agree to provide)."
(b) Amendments to Section 6. Section 6 shall be amended
as follows:
(i) The definition of "Collateral", "Security
Documents" and "Sharing Payments" shall be amended to read
as follows:
"Collateral" shall mean all real and personal
property in or upon which a Dravo Party or other third
Person has granted to the Collateral Agent on behalf of the
Secured Parties or to any Secured Party, pursuant to the
Security Documents, a lien, security interest or other
encumbrance to secured the Secured Obligations and the Dravo
Guaranty.
"Security Documents" means the Security Agreement, the
Dravo Pledge Agreement, the Companies Pledge Agreement, the
Dravo Security Agreement, the Lime Patent Security
Agreement, the Lime Mortgages, the Dravo Guaranty and all
documents and instruments executed and delivered in
connection therewith and any other document or instrument
pursuant to which a Dravo Party or any other Person grants
to the Collateral Agent or a Secured Party a security
interest in, or lien or encumbrance upon, any real or
personal property to secure the payment or performance of
the Secured Obligations.
"Sharing Payment" means a payment with respect to a
Secured Obligation, whether by way of a direct payment to a
Secured Party from a Dravo Party, including without
limitation any payment under the Dravo Guaranty, or other
Person or through the exercise by a Secured Party of any
right of setoff, bankers' lien or similar right; provided,
however, that a distribution to the Secured Parties of
Proceeds as contemplated in Section 2 hereof shall not
constitute a "Sharing Payment" hereunder.
(ii) The following new definition shall be inserted
in alphabetical order:
"Dravo Guaranty" means that certain Guaranty Agreement
dated as of December 31, 1995, executed in favor of the
Collateral Agent on behalf of the Lenders, as it may be
amended, modified or supplemented from time to time in
accordance with its terms.
ARTICLE IV
CONDITIONS PRECEDENT
SECTION 4.01. Conditions of Effectiveness. This Amendment
shall become effective when, and only when, (a) the Agent shall have
received counterparts of this Amendment executed by each of the
Dravo Parties and the Lenders, (b) all accrued but unpaid interest,
fees and expenses under the terms of the Revolving Credit Agreement,
as amended hereby, and all outstanding fees and expenses of counsel
to the Agent and the Lenders, shall have been paid in full to the
extent due and payable after giving effect to this Amendment, (c)
the Agent additionally shall have received all of the following
documents, each (unless otherwise indicated) being dated the date of
receipt thereof by the Agent (which date shall be the same for all
such documents), in form and substance satisfactory to the Agent and
the Lenders:
(i) Copies of (A) all documents evidencing all
requisite corporate action of each Dravo Party (including
any and all resolutions of the Board of Directors of each
Dravo Party) authorizing the execution, delivery and
performance of this Amendment and the matters contemplated
hereby and thereby, (B) all documents evidencing all
Governmental Approvals, if any, with respect to this
Amendment and the matters contemplated hereby and thereby,
and (C) the certificate or articles of incorporation
(certified as of a recent date by the Secretary of the State
of its jurisdiction of incorporation) and by-laws of each
Dravo Party.
(ii) A good standing certificate issued by the
Secretary of State of its incorporation and certificates of
qualification to do business as a foreign corporation for
each Dravo Party issued by the Secretary of State of each
State in which such Dravo Party is required by law to be
qualified to do business, each dated as of a date not more
than five days prior to the date hereof.
(iii) A certificate of the Secretary or an Assistant
Secretary of each Dravo Party certifying the names and true
signatures of the officers authorized to sign this Amendment
on behalf of such Dravo Party and any other documents to be
delivered by such Dravo Party hereunder.
(iv) Duly executed copies of the Notes, in
substantially the forms of Exhibits X-0, X-0 and A-3
attached hereto.
(v) Duly executed unconditional and irrevocable
guaranty of Dravo, in form and substance satisfactory to the
Lenders.
(vi) A favorable opinion of Xxxxxxxx Xxxxxxxxx,
Professional Corporation, special counsel for the Dravo
Parties, in form and substance satisfactory to the Lenders.
(vii) Such other documents, instruments, approvals
(and, if required by the Agent, certified duplicates of
executed copies thereof) or opinions as the Agent or any
Lender may reasonably request.
(d) The representations and warranties contained herein
shall be true on and as of the Effective Date; there shall exist on
the Effective Date, no Event of Default or Default; there shall
exist no material adverse change in the financial condition,
business operation or prospects of any Dravo Party or its
Subsidiaries since December 31, 1994; and each Dravo Party shall
have delivered to the Lenders an Officer's Certificate, dated the
Effective Date, to such effect.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
SECTION 5.01. Representations and Warranties of the Dravo
Parties. (a) Each of the Dravo Parties hereby repeats and confirms
each of the representations and warranties made by it in Article VII
of the Override Agreement, as amended hereby, as though made on and
as of the date hereof, with each reference therein to "this
Agreement", the "Operative Documents", "hereof", "hereunder",
"thereof", "thereunder" and words of like import being deemed to be
a reference to the Override Agreement and the Operative Documents,
in each case as amended hereby.
(b) Each of the Dravo Parties represents and warrants as
follows:
(i) Such Dravo Party and each of its Subsidiaries is
a corporation duly organized, validly existing and in good
standing under the laws of the state of its incorporation
and is duly qualified to do business in, and is in good
standing in, all other jurisdictions where the nature of its
business or the nature of property owned or used by it makes
such qualification necessary.
(ii) The execution, delivery and performance by
such Dravo Party of this Amendment are within its corporate
powers, have been duly authorized by all necessary corporate
action and do not contravene (A) such Dravo Party's charter
or by-laws, (B) law or (C) any legal or contractual
restriction binding on or affecting such Dravo Party; and
such execution, delivery and performance do not or will not
result in or require the creation of any Lien upon or with
respect to any of its properties.
(iii) No Governmental Approval is required for the due
execution, delivery and performance by such Dravo Party of
this Amendment, except for such Governmental Approvals as
have been duly obtained or made and which are in full force
and effect on the date hereof and not subject to appeal.
(iv) This Amendment constitutes the legal,
valid and binding obligations of such Dravo Party
enforceable against such Dravo Party in accordance with its
terms; subject to the qualifications, however, that the
enforcement of the rights and remedies herein is subject to
bankruptcy and other similar laws of general application
affecting rights and remedies of creditors and that the
remedy of specific performance or of injunctive relief is
subject to the discretion of the court before which any
proceedings therefor may be brought.
(v) Except as set forth in the Form 10-Q dated
September 30, 1995, there are no pending or threatened
actions, suits or proceedings affecting such Dravo Party or
any of its Subsidiaries or the properties of such Dravo
Party or any of its Subsidiaries before any court,
governmental agency or arbitrator, that may, if adversely
determined, materially adversely affect the financial
condition, properties, business, operations or prospects of
such Dravo Party and it Subsidiaries, considered as a whole,
or affect the legality, validity or enforceability of the
Override Agreement or any other Operative Document, in each
case as amended by this Amendment.
ARTICLE VI
WAIVER OF COVENANTS
SECTION 6.01. Waiver. Subject to the effectiveness of this
Amendment Agreement, the Lenders, pursuant to the request of the
Dravo Parties, hereby waive solely with respect to the quarter
ending December 31, 1994 and the period commencing January 1, 1995
and ending on the Effective Date hereof, the negative covenants
contained in Sections 4.02(b)(ii), 5.01(a), 5.02(a) and 5.02(b) of
the Override Agreement.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Reference to and Effect on the Operative
Documents. (a) Upon the effectiveness of this Amendment, on and
after the date hereof each reference in the Revolving Credit
Agreement and the Override Agreement to "this Agreement",
"hereunder", "hereof" or words of like import referring to the
Revolving Credit Agreement and the Override Agreement, respectively,
and each reference in the other Operative Documents to "the
Revolving Credit Agreement", "the Override Agreement", "thereunder",
"thereof" or words of like import referring to the Revolving Credit
Agreement and the Override Agreement, shall mean and be a reference
to the Revolving Credit Agreement and the Override Agreement,
respectively, as amended hereby.
(b) Except as specifically amended above, the Revolving
Credit Agreement, the Override Agreement and the Notes, and all
other Operative Documents, are and shall continue to be in full
force and effect and are hereby in all respects ratified and
confirmed. Without limiting the generality of the foregoing, the
Security Documents and all of the Collateral described therein do
and shall continue to secure the payment of all obligations of the
Dravo Parties under the Revolving Credit Agreement, the Notes and
the other Operative Documents, in each case as amended hereby.
(c) The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as
a waiver of any right, power or remedy of any Lender or the Agent
under any of the Operative Documents, nor constitute a waiver of any
provision of any of the Operative Documents.
SECTION 7.02. Costs and Expenses. The Dravo Parties jointly
and severally agree to pay on demand all costs and expenses incurred
by the Agent and the Lenders in connection with the preparation,
execution and delivery of this Amendment and the other documents to
be delivered hereunder and thereunder, including, without
limitation, the reasonable fees and out-of-pocket expenses of
counsel for the Agent and the Lenders with respect thereto and with
respect to advising the Agent and the Lenders as to their rights and
responsibilities under this Amendment. The Dravo Parties jointly
and severally further agree to pay on demand all costs and expenses,
if any (including, without limitation, reasonable counsel fees and
expenses of counsel), incurred by the Agent and the Lenders in
connection with the enforcement (whether through negotiations, legal
proceedings or otherwise) of this Amendment, the Transaction
Documents and the other documents to be delivered hereunder and
thereunder, including, without limitation, counsel fees and expenses
in connection with the enforcement of rights under this Section
7.02.
SECTION 7.03. Execution in Counterparts. This Amendment may
be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed and
delivered shall be deemed to be an original and all of which taken
together shall constitute but one and the same instrument.
SECTION 7.04. Governing Law. This Amendment shall be
governed by, and construed in accordance with, the laws of the State
of New York.
[Signatures Commence on Next Page.]
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
FIRST ALABAMA BANK, individually
and as Agent
By /s/ XXXXX X. XXXXXXXX
Name: Xxxxx X.Xxxxxxxx
Title: Senior Vice President
PNC BANK, NATIONAL ASSOCIATION
By /s/ XXXXXXX X. XXXXX
Name: Xxxxxxx X.Xxxxx
Title: Vice President
BANK OF AMERICA ILLINOIS,
individually and as Documentation Agent
By /s/ XXXXXXX X. XXXXXXXX
Name: Xxxxxxx X. XxXxxxxx
Title: Vice President
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA
By s/s XXXXX X. XXXXXX
Name: Xxxxx X. Xxxxxx
Title: Vice President
DRAVO CORPORATION
By /s/ XXXXXX X. XXXX III
Name: Xxxxxx X. Xxxx III
Title: Executive Vice President
DRAVO LIME COMPANY
By /s/ XXXXXX X. XXXX III
Name: Xxxxxx X. Xxxx III
Title: Executive Vice President
DRAVO BASIC MATERIALS
COMPANY, INC.
By /s/ XXXXXX X. XXXX III
Name: Xxxxxx X. Xxxx III
Title: Executive Vice President
