Exhibit 10.1
CONFORMED COPY
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REVOLVING CREDIT LOAN AGREEMENT
between
ALLEGHANY CORPORATION
and
CHEMICAL BANK
Dated as of June 14, 1995
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TABLE OF CONTENTS
Page
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ARTICLE I
Definitions
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SECTION 1.01. Defined Terms.................................. 1
SECTION 1.02. Terms Generally................................ 11
ARTICLE II
The Loans
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SECTION 2.01. Making of Revolving Credit Loans............... 12
SECTION 2.02. Notice of Loans................................ 13
SECTION 2.03. Revolving Credit............................... 14
SECTION 2.04. Interest....................................... 14
SECTION 2.05. Fees........................................... 15
SECTION 2.06. Termination and Reduction of Commitments....... 15
SECTION 2.07. Alternative Rate of Interest................... 16
SECTION 2.08. Prepayment of Loans............................ 17
SECTION 2.09. Continuation and Conversion of Loans........... 19
SECTION 2.10. Increased Costs................................ 20
SECTION 2.11. Change in Legality............................. 22
SECTION 2.12. Indemnity...................................... 23
SECTION 2.13. Money of Account; Payments..................... 23
SECTION 2.14. Loan Records................................... 24
SECTION 2.15. The Notes...................................... 24
SECTION 2.16. Use of Proceeds................................ 24
ARTICLE III
Representations and Warranties
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SECTION 3.01. Organization, Corporate Powers, etc............ 24
SECTION 3.02. Authority, etc................................. 25
SECTION 3.03. Enforceability................................. 25
SECTION 3.04. Financial Statements; No Material Adverse
Change..................................... 25
SECTION 3.05. Title of Properties............................ 26
SECTION 3.06. Litigation..................................... 26
SECTION 3.07. Taxes.......................................... 27
SECTION 3.08. Agreements..................................... 27
Page
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SECTION 3.09. Investment Company Act......................... 27
SECTION 3.10. Employee Benefit Plans......................... 27
SECTION 3.11. Federal Regulations............................ 28
SECTION 3.12. Use of Proceeds................................ 28
SECTION 3.13. Subsidiaries................................... 28
ARTICLE IV
Conditions of Lending
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SECTION 4.01. Representations and Warranties................. 29
SECTION 4.02. Opinion of Counsel for the Company............. 29
SECTION 4.03. Approval of Counsel for the Banks.............. 29
SECTION 4.04. No Default..................................... 29
SECTION 4.05. No Default Certificate......................... 30
SECTION 4.06. Supporting Documents........................... 30
SECTION 4.07. Termination of Prior Agreement................. 30
ARTICLE V
Affirmative Covenants
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SECTION 5.01. Corporate Existence............................ 31
SECTION 5.02. Business and Properties........................ 31
SECTION 5.03. Insurance...................................... 31
SECTION 5.04. Obligations and Taxes.......................... 32
SECTION 5.05. Financial Statements........................... 32
SECTION 5.06. Litigation Notice.............................. 33
SECTION 5.07. ERISA.......................................... 34
SECTION 5.08. Notice of Default.............................. 34
SECTION 5.09. Maintaining Records; Access to Properties
and Inspections............................ 34
ARTICLE VI
Negative Covenants
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SECTION 6.01. Indebtedness................................... 35
SECTION 6.02. Liens.......................................... 35
SECTION 6.03. Guarantees..................................... 36
SECTION 6.04. Rental Obligations............................. 36
SECTION 6.05. Sale of Assets, Consolidation, Merger, etc..... 37
SECTION 6.06. Tangible Net Worth............................. 38
SECTION 6.07. Asset Coverage................................. 38
SECTION 6.08. Dividends...................................... 38
Page
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ARTICLE VII
Defaults
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Defaults............. ........................................... 39
ARTICLE VIII
Miscellaneous
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SECTION 8.01. Modification................................... 42
SECTION 8.02. Expenses....................................... 43
SECTION 8.03. Indemnification................................ 43
SECTION 8.04. Set-off........................................ 44
SECTION 8.05. Applicable Law................................. 45
SECTION 8.06. Notices........................................ 45
SECTION 8.07. Survival of Agreement.......................... 46
SECTION 8.08. Extension of Maturity.......................... 46
SECTION 8.09. Severability................................... 46
SECTION 8.10. Counterparts................................... 47
SECTION 8.11. Successors and Assigns......................... 47
SECTION 8.12. Headings....................................... 50
SECTION 8.13. Entire Agreement............................... 50
References
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Exhibit A Form of Note
Exhibit B Form of Assignment and Acceptance
Schedule 2.01 Commitments
Schedule 3.10 Employee Benefit Plans
Schedule 3.13 Subsidiaries
Schedule 6.02 Liens
REVOLVING CREDIT LOAN AGREEMENT, dated
as of June 14, 1995, between ALLEGHANY
CORPORATION, a Delaware corporation
(the "Company"), and CHEMICAL BANK, a
New York banking corporation (the "Bank"
and, together with any persons becoming
parties to this Agreement under Section
8.11, the "Banks").
The Company has requested the Banks to extend
credit in order to enable the Company to borrow on a
revolving credit basis on and after the date hereof and at
any time prior to the Maturity Date (such term and each other
capitalized term used but not otherwise defined herein having
the meaning given it in Article I) in an aggregate principal
amount at any one time outstanding not in excess of
$200,000,000. The proceeds of the Loans are to be used for
working capital and general corporate purposes, including,
without limitation, acquisitions.
The Banks are willing to extend such credit to the
Company, subject to the terms and conditions hereinafter set
forth, in the maximum amount set forth. Accordingly, the
parties hereto agree as follows:
ARTICLE I
Definitions
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SECTION 1.01. Defined Terms. As used in this
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Agreement, the following terms shall have the meanings
specified below:
"ABR Loan" shall mean a Loan designated as such in
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accordance with Section 2.02 or 2.11.
"Adjusted CD Rate" shall mean, with respect to any
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CD Rate Loan for any Interest Period, an interest rate per
annum (rounded upwards, if necessary, to the next 1/100 of
1%) equal to the sum of (a) a rate per annum equal to the
product of (i) the Fixed CD Rate in effect for such Interest
Period and (ii) Statutory Reserves, plus (b) the Assessment
Rate. For purposes hereof, the term "Fixed CD Rate" shall
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mean the arithmetic average (rounded upwards, if necessary,
to the next 1/100 of 1%) of the prevailing rates per annum
bid at or about 10:00 a.m., New York City time, to Chemical
Bank on the first Business Day of the Interest Period
applicable to such CD Rate Loan by three New York City
negotiable certificate of deposit dealers of recognized
standing selected by Chemical Bank for the purchase at face
value of negotiable certificates of deposit of Chemical Bank
in a principal amount approximately equal to such CD Rate
Loan made by the Banks and with a maturity comparable to such
Interest Period.
"Adjusted LIBO Rate" shall mean, with respect to
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any Eurodollar Loan for any Interest Period, an interest rate
per annum (rounded upwards, if necessary, to the next 1/16 of
1%) equal to the product of (a) the LIBO Rate in effect for
such Interest Period and (b) Statutory Reserves. For
purposes hereof, the term "LIBO Rate" shall mean the rate
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determined by Chemical Bank to be the arithmetic average of
the rates (rounded upwards, if necessary, to the next 1/16 of
1%) at which dollar deposits approximately equal in principal
amount to such Eurodollar Loan made by the Banks, and for a
maturity comparable to such Interest Period are offered to
the principal London office of Chemical Bank, or if Chemical
Bank does not at the time maintain a London office, the
principal office of any Affiliate of Chemical Bank, in
immediately available funds in the London interbank market at
approximately 11:00 a.m., London time, two Business Days
prior to the commencement of such Interest Period.
"Affiliate" shall mean, when used with respect to a
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specified person, another person that directly, or indirectly
through one or more intermediaries, Controls or is Controlled
by or is under common Control with the person specified.
"Alternate Base Rate" shall mean with respect to
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any ABR Loan made by a Bank, for any day, a rate per annum
(rounded upwards, if necessary, to the next 1/16 of 1%) equal
to the greatest of (a) the Federal Funds Effective Rate in
effect on such day plus 1/2 of 1%, (b) the Prime Rate in
effect on such day and (c) the Base CD Rate in effect on such
day plus 1%. For purposes hereof, "Prime Rate" shall mean
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the rate of interest per annum publicly announced from time
to time by Chemical Bank at its principal office in New York
City as its prime rate in effect on such day; each change in
the Prime Rate shall be effective on the date such change is
publicly announced as being effective. "Base CD Rate" shall
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mean the sum of (a) the product of (i) the Three-Month
Secondary CD Rate and (ii) Statutory Reserves and (b) the
Assessment Rate. If for any reason any Bank shall have
determined (which determination shall be conclusive absent
manifest error) that it is unable to ascertain the Federal
Funds Effective Rate or the Base CD Rate or both for any
reason, including the inability or failure of Chemical Bank
to obtain sufficient quotations in accordance with the terms
thereof, the Alternate Base Rate shall be determined without
regard to clause (a) or (c), or both, of the first sentence
of this definition, as appropriate, until the circumstances
giving rise to such inability no longer exist. For purposes
of this Agreement, any change in the Alternate Base Rate due
to a change in the Prime Rate, the Federal Funds Effective
Rate or the Three Month Secondary CD Rate shall be effective
on the date such change in the Prime Rate, the Federal Funds
Effective Rate or the Three-Month Secondary CD Rate,
respectively, is announced.
"Arrangement Fee" shall have the meaning assigned
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to such term in Section 2.05(b).
"Assessment Rate" shall mean for any date the
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annual rate (rounded upwards, if necessary, to the next 1/100
of 1%) most recently estimated by Chemical Bank as the then
current net annual assessment rate that will be employed in
determining amounts payable by Chemical Bank to the Federal
Deposit Insurance Corporation (or any successor) for
insurance by such Corporation (or such successor) of time
deposits made in dollars at Chemical Bank's domestic offices.
"Asset Coverage" shall mean the ratio which (x) the
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value of the total assets of the Company, less all
liabilities of the Company, including as a liability
provision for estimated Federal taxes on unrealized
appreciation of securities for which market quotations are
readily available, but excluding from liabilities (i) all
deferred income taxes relating to undistributed earnings of
entities which are accounted for under the equity method of
accounting and with respect to whose securities market
quotations are readily available and (ii) all other
Indebtedness (including amounts guaranteed by the Company)
for borrowed money or evidenced by notes, bonds, debentures
or like instruments, bears to (y) all Indebtedness (including
amounts guaranteed by the Company) for borrowed money or
evidenced by notes, bonds, debentures or like instruments.
The valuation of securities for which market quotations are
readily available shall be based upon the market value of
such securities, and the valuation of other securities and
assets shall be based upon financial statement values as
determined in accordance with GAAP applied on a consistent
basis.
"Assignment and Acceptance" shall mean an
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assignment and acceptance entered into by a Bank and an
assignee, in the form of Exhibit B hereto.
"Board" shall mean the Board of Governors of the
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Federal Reserve System of the United States.
"Business Day" shall mean any day (other than a
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Saturday, Sunday or legal holiday in the State of New York)
on which banks are open for business in New York City except
that, if any determination of a "Business Day" shall relate
to a Eurodollar Loan, the term "Business Day" shall in
addition exclude any day on which banks are not open for
dealings in dollar deposits in the London interbank market.
"Capital Lease Obligations" of any person shall
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mean the obligations of such person to pay rent or other
amounts under any lease of (or other arrangement conveying
the right to use) real or personal property, or a combination
thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such
person under GAAP and, for the purposes of this Agreement,
the amount of such obligations at any time shall be the
capitalized amount thereof at such time determined in
accordance with GAAP.
"CD Rate Loan" shall mean a Loan designated as such
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in accordance with Section 2.02 or 2.11.
A "Change in Control" shall be deemed to have
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occurred if (a) any person or group (within the meaning of
Rule 13d-5 of the Securities and Exchange Commission as in
effect on the date hereof) other than the current principal
stockholders of the Company identified in the Company's proxy
statement dated March 27, 1995, or any of their respective
children, spouses or issue thereof or any entity controlled
or substantially all of whose equity is beneficially owned by
one or more of them as of the date of this Agreement, shall
own directly or indirectly, beneficially or of record, shares
representing more than 50% of the aggregate ordinary voting
power represented by the issued and outstanding capital stock
of the Company; (b) a majority of the seats (other than
vacant seats) on the board of directors of the Company shall
at any time be occupied by persons who were neither nominated
or appointed by a majority of the directors of the Company
who were in office as of the date of this Agreement nor who
were nominated or appointed by directors so nominated; or
(c) any person or group other than the current principal
stockholders of the Company identified in the Company's proxy
statement dated March 27, 1995, or any of their respective
children, spouses or issue thereof or any entity controlled
or substantially all of whose equity is beneficially owned by
one or more of them as of the date of this Agreement shall
otherwise directly or indirectly Control the Company.
"Chicago Title and Trust Company" shall mean
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Chicago Title and Trust Company, an Illinois corporation.
"Code" shall mean Internal Revenue Code of 1986, as
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amended from time to time.
"Commitment" shall mean, with respect to any Bank,
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such Bank's commitment to make revolving credit Loans
hereunder as set forth in Section 2.01 or in the Assignment
and Acceptance pursuant to which such Bank assumed its
Commitment, as applicable, as the same may be reduced from
time to time pursuant to Section 2.06 and reduced or
increased from time to time pursuant to Section 8.11.
"Commitment Fee" shall have the meaning assigned to
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such term in Section 2.05(a).
"Commonly Controlled Entity" shall mean any trade
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or business, whether or not incorporated, that, together with
the Company, is treated as a single employer under
Section 414(b) or (c) of the Code, or, solely for purposes of
Section 302 of ERISA and Section 412 of the Code, is treated
as a single employer under Section 414 of the Code.
"Control" shall mean the possession, directly or
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indirectly, of the power to direct or cause the direction of
the management or policies of a person, whether through the
ownership of voting securities, by contract or otherwise, and
"Controlling" and "Controlled" shall have meanings
correlative thereto; provided that ownership of less than 25%
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of the voting securities of the Company, absent other indicia
of the possession of the power to direct or cause the
direction of the management or policies of the Company or
Subsidiaries, shall not constitute "Control" for the purposes
of this Agreement.
"dollars" or the symbol "$" shall mean dollars in
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lawful currency of the United States of America.
"ERISA" shall mean the Employee Retirement Income
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Security Act of 1974, as the same may be amended from time to
time.
"Eurodollar Loan" shall mean a Loan designated as
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such in accordance with Section 2.02 or 2.11.
"Event of Default" shall have the meaning specified
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in Article VII.
"Federal Funds Effective Rate" shall mean, for any
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day, the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of
New York, or, if such rate is not so published for any day
which is a Business Day, the average of the quotations for
the day of such transactions received by Chemical Bank from
three Federal funds brokers of recognized standing selected
by it.
"Fees" shall mean the Commitment Fee, the
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Arrangement Fee and the Utilization Fee.
"GAAP" shall mean generally accepted accounting
----
principles in the United States of America in effect from
time to time.
"Governmental Authority" shall mean any Federal,
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state, local or foreign court or governmental agency,
authority, instrumentality or regulatory body.
"Indebtedness" of any Person shall mean, without
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duplication, (a) all obligations of such Person for borrowed
money or with respect to deposits or advances of any kind,
(b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations
of such Person upon which interest charges are customarily
paid, (d) all obligations of such Person under conditional
sale or other title retention agreements relating to property
or assets purchased by such Person, (e) all obligations of
such Person issued or assumed as the deferred purchase price
of property or services, other than accounts payable incurred
and paid on terms customary in the business of such Person
(it being understood that the "deferred purchase price" in
connection with any purchase of property or assets shall
include only that portion of the purchase price which shall
be deferred beyond the date on which the purchase is actually
consummated), (f) all Indebtedness of others secured by (or
for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such Person, whether or not the
obligations secured thereby have been assumed, (g) all
guarantees by such Person of Indebtedness of others and
(h) all Capital Lease Obligations of such Person.
"Insolvent" shall mean, with respect to any
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Multiemployer Plan, the condition that such Plan is insolvent
as such term is used in Section 4245 of ERISA.
"Interest Payment Date" shall mean the last day of
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an Interest Period and, in the case of any Interest Period of
six months or 180 days, each day which is three months or
90 days, respectively, after the first day of such Interest
Period.
"Interest Period" shall mean, (a) as to any
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Eurodollar Loan, the period commencing on the date of such
Loan and ending on the numerically corresponding day in the
calendar month one month, two months, three months or six
months thereafter, as the Company may elect, and thereafter,
each period commencing on the last day of the next preceding
Interest Period for such Eurodollar Loan and ending on the
numerically corresponding day in the calendar month one
month, two months, three months or six months thereafter, as
the Company may elect; (b) as to any CD Rate Loan, the period
commencing on the date of such Loan and ending 30, 60, 90 or
180 days thereafter, as the Company may elect, and
thereafter, each period commencing on the last day of the
next preceding Interest Period for such CD Rate Loan and
ending 30, 60, 90 or 180 days thereafter, as the Company may
elect; and (c) as to any ABR Loan, the period commencing on
the date of such Loan and ending on the earliest of (x) the
next succeeding March 31, June 30, September 30, or
December 31, (y) the Maturity Date or (z) the date such Loan
shall be prepaid in accordance with Section 2.08; provided,
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however, that (i) if any Interest Period would end on a day
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which shall not be a Business Day, such Interest Period shall
be extended to the next succeeding Business Day, unless, in
the case such Interest Period is applicable to a Eurodollar
Loan, such next succeeding Business Day would fall in the
next calendar month, in which case such Interest Period shall
end on the next preceding Business Day and (ii) any Interest
Period with respect to a Eurodollar Loan that begins on the
last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall end on the
last Business Day of a calendar month.
"Lien" shall have the meaning assigned to such term
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in Section 6.02.
"Loan" shall mean any ABR Loan, Eurodollar Loan or
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CD Rate Loan.
"Loan Account" shall mean an account on the books
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of each Bank in which (i) each Loan to the Company by such
Bank shall be debited on the date of such Loan, and (ii) each
payment by the Company to such Bank of principal for credit
to such account shall be credited on the date paid.
"Loan Documents" shall mean this Agreement and the
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Notes.
"Margin Stock" shall have the meaning given to such
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term under Regulation U of the Board.
"Material Adverse Effect" shall mean (a) a
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materially adverse effect on the business, assets, operations
or condition, financial or otherwise, of the Company and the
Subsidiaries taken as a whole or (b) material impairment of
the ability of the Company to perform any of its obligations
under any Loan Document to which it is a party.
"Maturity Date" shall mean July 9, 2000.
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"Mineral Holdings" shall mean Mineral Holdings
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Inc., a Delaware corporation.
"Multiemployer Plan" shall mean a Plan which is a
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multiemployer plan as defined in Section 4001(a)(3) of ERISA.
"Note" shall mean any promissory note of the
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Company, substantially in the form of Exhibit A, attached
hereto (and including any Notes issued pursuant to
Section 8.11).
"PBGC" shall mean the Pension Benefit Guaranty
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Corporation established pursuant to Subtitle A of Title IV of
ERISA.
"Person" shall mean any individual, corporation,
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partnership, joint venture, association, joint stock company,
trust, unincorporated organization or government or any
agency or political subdivision thereof.
"Plan" shall mean any employee pension benefit plan
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(other than a Multiemployer Plan) subject to the provisions
of Title IV of ERISA or Section 412 of the Code or
Section 307 of ERISA and in respect of which the Company or a
Commonly Controlled Entity is (or, if such plan were
terminated, would under Section 4069 of ERISA be deemed to
be) an "employer" as defined in Section 3(5) of ERISA.
"Prior Agreement" shall mean the Revolving Credit
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Loan Agreement among the Company, Chemical Bank and
Manufacturers Hanover Trust Company dated as of July 9, 1991.
"Reorganization" shall mean, with respect to any
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Multiemployer Plan, the condition that such Plan is in
reorganization as such term is used in Section 4241 of ERISA.
"Reportable Event" shall mean any of the events set
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forth in Section 4043 of ERISA or the regulations thereunder.
"Required Banks" shall mean, at any time, Banks
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holding Loans representing at least 66-2/3% of the aggregate
principal amount of the Loans outstanding or, if no Loans are
outstanding, Banks having Commitments representing at least
66-2/3% of the aggregate Commitments.
"Single Employer Plan" shall mean any Plan which is
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covered by Title IV of ERISA, but which is not a Multi-
employer Plan.
"Statutory Reserves" shall mean a fraction
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(expressed as a decimal), the numerator of which is the
number one and the denominator of which is the number one
minus the aggregate of the maximum reserve percentages
(including any marginal, special, emergency or supplemental
reserves) expressed as a decimal established by the Board and
any other banking authority to which each of the Reference
Banks is subject (a) with respect to the Adjusted CD Rate or
the Base CD Rate (as such term is used in the definition of
"Alternate Base Rate"), for new negotiable nonpersonal time
deposits in dollars of over $100,000 with maturities
approximately equal to (i) the applicable Interest Period, in
the case of the Adjusted CD Rate, and (ii) three months, in
the case of the Base CD Rate (as such term is used in the
definition of "Alternate Base Rate"), and (b) with respect to
the Adjusted LIBO Rate, for Eurocurrency Liabilities (as
defined in Regulation D of the Board). Such reserve
percentages shall include those imposed pursuant to such
Regulation D. Eurodollar Loans shall be deemed to constitute
Eurocurrency Liabilities and to be subject to such reserve
requirements without benefit of or credit for proration,
exemptions or offsets which may be available from time to
time to any Bank under such Regulation D. Statutory Reserves
shall be adjusted automatically on and as of the effective
date of any change in any reserve percentage.
"Subordinated Exchangeable Debentures" shall mean
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the $59,600,000 aggregate principal amount of 6-1/2%
Subordinated Exchangeable Debentures due June 15, 2014,
issued by the Company.
"Subsidiary" shall mean any corporation,
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association or other business entity more than 50% of the
shares of stock of which entitled to vote in the election of
directors (excluding shares so entitled to vote only upon the
failure to pay dividends thereon or other contingencies) is
at the time owned directly or indirectly by the Company.
"Tangible Net Worth" shall mean the excess of
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(i) the net book value of the assets of the Company (other
than patents, patent rights, trademarks, trade names,
franchises, copyrights, licenses, permits, goodwill and other
intangible assets classified as such in accordance with GAAP)
after all appropriate deductions in accordance with GAAP
(including, without limitation, reserves for doubtful
receivables, obsolescence, depreciation and amortization)
over (ii) the liabilities (including tax and other proper
accruals) of the Company, in each case computed in accordance
with GAAP.
"Three-Month Secondary CD Rate" shall mean, for any
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day, the secondary market rate for three-month certificates
of deposit reported as being in effect on such day (or, if
such day shall not be a Business Day, the preceding Business
Day) by the Board through the public information telephone
line of the Federal Reserve Bank of New York (which rate
will, under the current practices of the Board, be published
in Federal Reserve Statistical Release H.15(519) during the
week following such day), or, if such rate shall not be so
reported on such day or such next preceding Business Day, the
average of the secondary market quotations for three-month
certificates of deposit of major money center banks in
New York City received at approximately 10:00 a.m., New York
City time, on such day (or, if such day shall not be a
Business Day, on the next preceding Business Day) by Chemical
Bank from three New York City negotiable certificate of
deposit dealers of recognized standing selected by it.
"Transactions" shall have the meaning assigned to
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such term in Section 3.02.
"Type", when used in respect of any Loan, shall
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refer to the Rate by reference to which interest on such Loan
is determined. For purposes hereof, "Rate" shall include the
Adjusted LIBO Rate, the Adjusted CD Rate and the Alternate
Base Rate.
"Underwriters Reinsurance" shall mean Underwriters
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Reinsurance Company, a New Hampshire corporation.
"URC Holdings" shall mean URC Holdings Corp., a
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Delaware corporation.
"Utilization Fee" shall have the meaning assigned
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to such term in Section 2.05(c).
"World Minerals" shall mean World Minerals Inc., a
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Delaware corporation.
SECTION 1.02. Terms Generally. The definitions in
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Section 1.01 shall apply equally to both the singular and
plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding mascu-
line, feminine and neuter forms. The words "include",
"includes" and "including" shall be deemed to be followed by
the phrase "without limitation". All references herein to
Articles, Sections, Exhibits and Schedules shall be deemed
references to Articles and Sections of, and Exhibits and
Schedules to, this Agreement unless the context shall
otherwise require. Except as otherwise expressly provided
herein, (a) any reference in this Agreement to any Loan
Document shall mean such document as amended, restated,
supplemented or otherwise modified from time to time and
(b) all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to
time; provided, however, that, if GAAP shall change after the
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date of this Agreement in a manner affecting any of the
covenants set forth in Article VI, then, at the request of
the Company or the Required Banks, the parties hereto shall
negotiate in good faith in an effort to agree upon
appropriate adjustments to such covenants and, following the
execution of an amendment hereto giving effect to any such
agreement, such accounting or financial terms shall for
purposes of determining compliance with such covenants be
construed in accordance with GAAP as so changed (it being
understood that such terms shall be construed in accordance
with GAAP as in effect prior to such change at all times
after any such request and before the execution of any such
amendment).
ARTICLE II
The Loans
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SECTION 2.01. Making of Revolving Credit Loans.
--------------------------------
(a) Each Bank, severally and not jointly, agrees, upon the
terms and subject to the conditions hereof, to make revolving
credit Loans (herein called "RC Loans") to the Company at any
time and from time to time from the date hereof until the
Maturity Date, or until the earlier termination of the
Commitments, in an aggregate principal amount at any one time
outstanding not to exceed the amount of its Commitment. All
RC Loans shall be made from each Bank pro rata in accordance
with its Commitment. Each Eurodollar Loan or CD Rate Loan
requested hereunder on any date shall be in the principal
amount of at least $500,000. Any ABR Loan requested
hereunder on any date shall be in a principal amount of
$100,000 or an integral multiple thereof. To the extent that
Loans (as defined in the Prior Agreement) are outstanding
under the Prior Agreement as of the date hereof, such Loans
shall continue to be outstanding as Loans of the same Type
and Interest Period hereunder (but shall bear interest at the
rates and be subject to the provisions of this Agreement).
(b) Each RC Loan shall be either an ABR Loan, a
Eurodollar Loan or a CD Rate Loan as the Company may request
pursuant to Section 2.02. Each Bank may at its option
fulfill its Commitment with respect to any Eurodollar Loan by
causing a foreign branch or affiliate of such Bank to make
such Loan; provided that any such exercise of such option
--------
shall not affect the obligation of the Company to repay such
Loan in accordance with the terms of this Agreement. Loans
of more than one type may be outstanding at the same time.
Loans requested from, and maintained with, each Bank
hereunder need not be of the same type as those requested
from, and maintained with, the other Banks.
(c) Each Bank shall make its Loans by depositing
immediately available funds in the regular deposit account of
the Company maintained with such Bank not later than
2:00 p.m., New York City time, on the date of such Loan.
SECTION 2.02. Notice of Loans. (a) The Company
---------------
shall give each of the Banks irrevocable written, telegraphic
or telex notice (i) not later than 12:00 (noon), New York
City time, one Business Day before such Loan if such Loan is
to be an ABR Loan; (ii) not later than 10:00 a.m., New York
City time, two Business Days before such Loan if such Loan is
to be a CD Rate Loan and (iii) not later than 10:00 a.m.,
New York City time, three Business Days before such Loan if
such Loan is to be a Eurodollar Loan. Such notice shall
specify (i) whether the Loan then being requested of such
Bank is to be an ABR Loan, a CD Rate Loan or a Eurodollar
Loan, (ii) the date of such borrowing and amount thereof and
(iii) if such Loan is to be a Eurodollar Loan or CD Rate
Loan, the Interest Period with respect thereto. If no
election as to the type of Loan is specified in such notice,
such Loan shall be an ABR Loan. If no Interest Period with
respect to any Eurodollar Loan or CD Rate Loan is specified
in any such notice, then the Company shall be deemed to have
selected an Interest Period of one month's duration, in the
case of a Eurodollar Loan, or 30 days' duration, in the case
of a CD Rate Loan. Such notice to any Bank for a Eurodollar
Loan or CD Rate Loan may condition such request upon a
maximum Adjusted LIBO Rate or Adjusted CD Rate; provided
that, if such Bank determines
--------
that the Adjusted LIBO Rate or Adjusted CD Rate, as the case
may be, will exceed the maximum specified by the Company,
such request shall be deemed a request for an ABR Loan.
(b) The Company may continue any Eurodollar Loan
or CD Rate Loan or convert all or any part of any ABR Loan,
CD Rate Loan or Eurodollar Loan into a Loan of a different
type, in each case in accordance with Section 2.09 and
subject to the limitations set forth therein.
(c) The Company shall not request from any Bank
more than a total of five new Eurodollar Loans and/or CD Rate
Loans or conversions to Eurodollar Loans from ABR Loans or CD
Rate Loans and/or to CD Rate Loans from ABR Loans or
Eurodollar Loans in any one calendar month.
SECTION 2.03. Revolving Credit. During the period
----------------
from the date hereof to and including the Maturity Date, the
Company may borrow, pay, prepay and reborrow hereunder,
subject to all the terms and provisions of this Agreement,
including but not limited to the provisions for prepayment
set forth in Section 2.08. The unpaid principal of and
accrued interest on the RC Loans shall be payable on the
Maturity Date.
SECTION 2.04. Interest. (a) In the case of an
--------
ABR Loan, interest shall be payable at a rate per annum
(computed on the basis of the actual number of days elapsed
over a year of 360 days during any period that the Alternate
Base Rate is determined based upon the Base CD Rate or the
Federal Funds Effective Rate and, at all other times, 365 or
366 days, as the case may be) equal to the Alternate Base
Rate, payable quarterly on the last day of each March, June,
September and December, commencing with the first of such
dates after the date of such ABR Loan, and at repayment, in
whole or part, or on the date of conversion of such ABR Loan
to a Eurodollar Loan or CD Rate Loan.
(b) In the case of a Eurodollar Loan, interest
shall be payable at a rate per annum (computed on the basis
of the actual number of days elapsed over a year of 360 days)
equal to the Adjusted LIBO Rate, plus one-half percent (1/
2%). Interest shall be payable on each Eurodollar Loan on
the applicable Interest Payment Dates, and at repayment or
the date of conversion of such Eurodollar Loan to a CD Rate
Loan or an ABR Loan. Each Bank requested to make a
Eurodollar Loan hereunder shall determine the applicable
Adjusted LIBO Rate for each Interest Period as soon as
practicable after 10:00 a.m., New York City time, two
Business Days before the commencement of such Interest Period
and shall notify the Company of the Adjusted LIBO Rate so
determined. Such determination shall be conclusive absent
manifest error.
(c) In the case of a CD Rate Loan, interest will
be payable at a rate per annum (computed on the basis of the
actual number of days elapsed over a period of 360 days)
equal to the Adjusted CD Rate, plus five-eighths percent
(5/8%). Interest shall be payable on each CD Rate Loan on
the applicable Interest Payment Dates, and at repayment or
the date of conversion of such CD Rate Loan to an ABR Loan or
a Eurodollar Loan. Each Bank requested to make a CD Rate
Loan hereunder shall determine the applicable Adjusted CD
Rate for each Interest Period as soon as practicable after
9:00 a.m., New York City time, on the date of the
commencement of such Interest Period and shall notify the
Company of the Adjusted CD Rate so determined. Such
determination shall be conclusive absent manifest error.
SECTION 2.05. Fees. (a) The Company agrees to
----
pay each Bank a commitment fee (herein called the "Commitment
----------
Fee") from and including the date hereof to the Maturity
---
Date, computed at the rate of 1/4 of 1% per annum on the
average daily unused amount of such Bank's Commitment during
the period for which payment is made, payable quarterly on
the last day of each March, June, September and December and
on the Maturity Date or such earlier date as the Commitments
shall terminate or be reduced as provided herein, commencing
on the first of such dates to occur after the date hereof.
(b) The Company agrees to pay each Bank, for its
own account, the fees separately agreed to by the Company and
the Banks (the "Arrangement Fees").
----------------
(c) The Company agrees to pay each Bank, on the
last Business Day of March, June, September and December in
each year, and on the date on which all Loans shall be paid
in full and all Commitments shall be terminated as provided
herein, a utilization fee ("Utilization Fee") equal
---------------
to .125% per annum on the average aggregate outstanding
amount of Loans during the quarter or other period then
ended, if during such quarter or other period the average
daily amount of all Loans outstanding exceeds 50% of the
average daily aggregate commitments in effect.
(d) All Fees shall be paid on the date due, in
immediately available funds, to each of the Banks. Once
paid, none of the Fees shall be refundable under any
circumstances.
SECTION 2.06. Termination and Reduction of
----------------------------
Commitments. Upon at least two Business Days prior written,
-----------
telegraphic or telex notice to the Banks, the Company may at
any time in whole permanently terminate, or from time to time
permanently reduce, the Commitments. Each partial reduction
of the Commitments shall be in the aggregate principal amount
of $100,000 or an integral multiple thereof. In the event of
a partial reduction of the Commitments, such reduction shall
be made pro rata among the Banks in accordance with their
respective Commitments. In no event shall the Commitment of
any Bank be reduced to an amount less than the then
outstanding unpaid principal balance of the Note given in
favor of such Bank.
SECTION 2.07. Alternative Rate of Interest.
----------------------------
(a) In the event, and on each occasion, that on the day two
Business Days prior to the commencement of any Interest
Period for a Eurodollar Loan, any Bank shall have determined
(which determination shall be conclusive and binding upon the
Company) that dollar deposits in the amount of the unpaid
principal amount of such Eurodollar Loan are not generally
available in the London interbank market, or that the rate at
which such dollar deposits are being offered will not
adequately and fairly reflect the cost to such Bank of making
or maintaining the principal amount of such Eurodollar Loan
during such Interest Period, such Bank shall promptly give
written, telegraphic or telex notice of such determination to
the Company and the other Banks. In such event the Company
and the Bank giving such notice may agree on a substitute
rate of interest. For one Business Day after receipt of such
notice, the Company shall have the right to withdraw its
request for a Eurodollar Loan pursuant to Section 2.02 by
written, telegraphic or telex notice to the Banks. If the
Company and the Bank giving notice as hereinabove provided
have not agreed on a substitute rate of interest, any request
by the Company to make, convert to or maintain a Eurodollar
Loan pursuant to Sections 2.02 (unless withdrawn as provided
above) or 2.09 shall be deemed a request for an ABR Loan in
respect of any Bank giving such notice. After such notice
shall have been given and until the circumstances giving rise
to such notice no longer exist or until the Company and such
Bank agree on a substitute rate of interest, each request for
a Eurodollar Loan shall be deemed to be a request for an ABR
Loan in respect of any such Bank giving such notice. Each
determination by a Bank hereunder shall be conclusive absent
manifest error. Any Bank giving notice as described above
shall notify the Company at such time as the circumstances
giving rise to such notice no longer exist.
(b) In the event, and on each occasion, that on
the day of the commencement of any Interest Period for a CD
Rate Loan, any Bank shall have determined (which determina-
tion shall be conclusive and binding upon the Company) that
such Bank is unable to obtain bids for its dollar deposits
for such Interest Period in the manner contemplated by the
term "Fixed CD Rate", or that the rate at which such dollar
deposits are being offered will not adequately and fairly
reflect the cost to such Bank of making or maintaining the
principal amount of such CD Rate Loan during such Interest
Period, such Bank shall promptly give written, telegraphic or
telex notice of such determination to the Company and the
other Banks. In such event the Company and the Bank giving
such notice may agree on a substitute rate of interest. For
one Business Day after receipt of such notice, the Company
shall have the right to withdraw its request for a CD Rate
Loan pursuant to Section 2.02 by written, telegraphic or
telex notice to the Banks. If the Company and the Bank
giving notice as hereinabove provided have not agreed on a
substitute rate of interest, any request by the Company to
make, convert to or maintain a CD Rate Loan pursuant to
Sections 2.02 (unless withdrawn as provided above) or 2.09
shall be deemed a request for an ABR Loan in respect of any
Bank giving such notice. After such notice shall have been
given and until the circumstances giving rise to such notice
no longer exist or until the Company and such Bank agree on a
substitute rate of interest, each request for a CD Rate Loan
shall be deemed to be a request for an ABR Loan in respect of
any such Bank giving such notice. Each determination by a
Bank hereunder shall be conclusive absent manifest error.
Any Bank giving notice as described above shall notify the
Company at such time as the circumstances giving rise to such
notice no longer exist.
SECTION 2.08. Prepayment of Loans. (a) The
-------------------
Company shall have the right at any time and from time to
time to prepay any Loan, in whole or in part, without premium
or penalty, upon at least two Business Days' prior written,
telegraphic or telex notice to the Banks; provided, however,
-------- -------
that (i) each such partial prepayment shall be in the
aggregate principal amount of $100,000 or an integral
multiple thereof, (ii) such prepayments shall be made pro
rata among the Banks in accordance with their respective
Commitments, and (iii) each prepayment shall be accompanied
by accrued interest on the principal amount being prepaid to
the date of prepayment.
(b) Each notice of prepayment shall specify the
prepayment date and the principal amount of each Loan to be
prepaid, shall be irrevocable and shall commit the Company to
prepay such Loan by the amount stated therein.
(c) If the outstanding unpaid principal balance of
the Note given in favor of any Bank on the date of any such
payment includes one or more of ABR Loans, CD Rate Loans and
Eurodollar Loans, the notice given to such Bank shall specify
the extent to which such payment is to be applied against
such ABR Loans, CD Rate Loans and Eurodollar Loans. If the
outstanding unpaid principal balance of the Note given in
favor of any Bank on the date of any such payment includes
more than one Eurodollar Loan or CD Rate Loan, the notice
given to such Bank shall specify the Eurodollar Loans or CD
Rate Loans, as the case may be, against which such payment is
to be applied, and the extent to which it is to be applied
against each Eurodollar Loan or CD Rate Loan, as the case may
be, so specified. To the extent not otherwise so specified,
each such payment shall be applied, first, against any
outstanding ABR Loans, and next, after all such ABR Loans
have been repaid, to the outstanding Eurodollar Loans and CD
Rate Loans in the order of expiration of their respective
Interest Periods.
(d) The Company shall reimburse any Bank on demand
for any loss incurred or to be incurred by it in the
reemployment of the funds released by (i) any prepayment or
payment of any Eurodollar Loan or CD Rate Loan pursuant to
Section 2.10(a) or 2.05 hereof, as the case may be, in whole
or in part on a date prior to the last day of an Interest
Period for such Eurodollar Loan or CD Rate Loan, (ii) any
prepayment or payment of any Eurodollar Loan or CD Rate Loan
by reason of acceleration of the indebtedness due hereunder
on the occurrence of an Event of Default pursuant to
Article VII hereof or (iii) by any failure or refusal of the
Company to accept (or to meet the conditions precedent for)
any Eurodollar Loan or CD Rate Loan as to which notice was
given by the Company hereunder. Such loss shall be the
difference as reasonably determined by such Bank between its
cost of obtaining the funds for the Loan being prepaid or
refused and any lesser amount realized by such Bank in
reemploying such funds during the period from the date of
prepayment or refusal to the end of the Interest Period of
the Eurodollar Loan or CD Rate Loan being repaid or the
Interest Period specified in the notice given by the Company,
as the case may be; provided that such loss shall not include
any loss, damage or expense resulting from the failure of any
Person to whom any such funds are loaned to timely and duly
repay the same, or from any other default or nonperformance
of such Person's obligations.
SECTION 2.09. Continuation and Conversion of
------------------------------
Loans. The Company shall have the right, at any time, with
-----
at least three Business Days' prior irrevocable written,
telegraphic or telex notice to the Banks, (i) to continue any
Eurodollar Loan or CD Rate Loan or portion thereof into a
subsequent Interest Period, or (ii) to convert any type of
Loan or portion thereof into a Loan of a different type,
subject to the following:
(a) no Event of Default or event which with notice
or lapse of time or both would constitute an Event of
Default shall have occurred and be continuing at the
time of such continuation or conversion and, with
respect to Eurodollar Loans or CD Rate Loans, no notice
described in Section 2.07 or 2.11 (which shall not have
been rescinded) shall have been given by the Bank from
which the Eurodollar Loan or CD Rate Loan is requested;
(b) each conversion shall be effected by the Banks
applying the proceeds of the new Loan to the Loan (or
portion thereof) being converted;
(c) if the new Loan made in respect of the conver-
sion shall be a Eurodollar Loan or CD Rate Loan, the
first Interest Period with respect thereto shall
commence on the date of conversion;
(d) Eurodollar Loans and CD Rate Loans may be
converted on their respective Interest Payment Dates
only, except conversion of Eurodollar Loans or CD Rate
Loans to ABR Loans to the extent required to be
converted pursuant to Section 2.11(a);
(e) each request for a Eurodollar Loan or CD Rate
Loan or for a continuation thereof which shall fail to
state the applicable Interest Period, shall be for one
month's duration or 30 days' duration, respectively;
(f) no more than a total of five new Eurodollar
Loans and/or CD Rate Loans or conversions to Eurodollar
Loans from ABR Loans or CD Rate Loans and/or to CD Rate
Loans from ABR Loans or Eurodollar Loans may be
requested from any Bank in any one calendar month;
(g) any portion of a Loan maturing or required to
be repaid in less than one month may not be converted
into or continued as a Eurodollar Loan;
(h) any portion of a Loan maturing or required to
be repaid in less than 30 days may not be converted into
or continued as a CD Rate Loan;
(i) any portion of a Eurodollar Loan or CD Rate
Loan which cannot be converted into or continued as a
Eurodollar Rate Loan or a CD Rate Loan by reason of
clauses (g) and (h) above shall be automatically
converted at the end of the Interest Period in effect
for such Loan into an ABR Loan; and
(j) each request for conversion of an ABR Loan to a
Eurodollar Loan or CD Rate Loan hereunder shall be in
the principal amount of at least $500,000.
In the event that the Company shall not give notice to
continue any Eurodollar Loan or CD Rate Loan, such Loan
(unless repaid) shall automatically become an ABR Loan at the
expiration of the then current Interest Period. The Company
may condition any request to any Bank for conversion to or
maintenance of a Eurodollar Loan or CD Rate Loan upon a
maximum Adjusted LIBO Rate or maximum Adjusted CD Rate, as
the case may be; provided that, if such Bank determines that
the Adjusted LIBO Rate or Adjusted CD Rate, as the case may
be, will exceed such maximum specified by the Company, such
request shall be deemed a request for an ABR Loan.
SECTION 2.10. Increased Costs.
---------------
(a) Notwithstanding any other provision herein, if after the
date of this Agreement any change in applicable law or
regulation or in the interpretation or administration thereof
by any Governmental Authority charged with the interpretation
or administration thereof (whether or not having the force of
law) shall change the basis of taxation of payments to any
Bank of the principal of or interest on any Eurodollar Loan
or CD Rate Loan or any other fees or amounts payable
hereunder (other than taxes imposed on the overall net income
of such Bank by the jurisdiction in which such Bank has its
principal office or by any political subdivision or taxing
authority therein), or shall impose, modify or deem
applicable any reserve, special deposit or similar require-
ment against assets of, deposits with or for the account of,
or credit extended by, such Bank or shall impose on such Bank
or the London interbank market any other condition affecting
this Agreement or the Eurodollar Loans or CD Rate Loans, and
the result of any of the foregoing shall be to increase the
cost to such Bank of making or maintaining any Eurodollar
Loan or CD Rate Loan or to reduce the amount of any sum
received or receivable by such Bank hereunder (whether of
principal, interest or otherwise) in respect thereof, by an
amount deemed by such Bank to be material, then (to the
extent the amount is not included in the computation of the
Adjusted LIBO Rate or Adjusted CD Rate (as the case may be)),
the Company shall pay to such Bank, upon such Bank's demand,
such additional amount or amounts as will compensate such
Bank for such additional costs or reduction.
(b) If any Bank shall have determined that the
applicability of any law, rule, regulation, agreement or
guideline adopted pursuant to or arising out of the July 1988
report of the Basle Committee on Banking Regulations and
Supervisory Practices entitled "International Convergence of
Capital Measurement and Capital Standards", or the adoption
after the date hereof of any other law, rule, regulation,
agreement or guideline regarding capital adequacy, or any
change in any of the foregoing or in the interpretation or
administration of any of the foregoing by any Governmental
Authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by
any Bank (or any lending office of such Bank) or any Bank's
holding company with any request or directive regarding
capital adequacy (whether or not having the force of law) of
any such Governmental Authority, central bank or comparable
agency, has or would have the effect of reducing the rate of
return on such Bank's capital or on the capital of such
Bank's holding company, if any, as a consequence of this
Agreement or the Loans made by such Bank pursuant hereto to a
level below that which such Bank or such Bank's holding
company could have achieved but for such adoption, change or
compliance (taking into consideration such Bank's policies
and the policies of such Bank's holding company with respect
to capital adequacy) by an amount deemed by such Bank to be
material, then from time to time, after submission by such
Bank to the Company of a written request therefor, the
Company shall pay to such Bank such additional amount or
amounts as will compensate such Bank or such Bank's holding
company for any such reduction suffered.
(c) A certificate of each Bank setting forth such
amount or amounts and the basis for determination from time
to time of such amount or amounts as shall be necessary to
compensate such Bank or its holding company as specified in
paragraph (a) or (b) above, as the case may be, shall be
delivered to the Company and shall be conclusive absent
manifest error. The Company shall pay each Bank the amount
shown as due on any such certificate delivered by it within
10 days after its receipt of the same.
(d) Failure on the part of any Bank to demand
compensation for any increased costs or reduction in amounts
received or receivable or reduction in return on capital with
respect to any period shall not constitute a waiver of such
Bank's right to demand compensation with respect to such
period within a commercially reasonable time or any other
period. The protection of this Section shall be available to
each Bank regardless of any possible contention of the
invalidity or inapplicability of the law, rule, regulation,
guideline or other change or condition which shall have
occurred or been imposed.
SECTION 2.11. Change in Legality.
------------------
(a) Notwithstanding anything to the contrary herein
contained, if any change in any law or regulation or in the
interpretation thereof by any Governmental Authority charged
with the administration or interpretation thereof shall make
it unlawful for any Bank to make or maintain any Eurodollar
Loan or to give effect to its obligations as contemplated
hereby then, by written notice to the Company and to the
other Banks, (i) such Bank may require payment (together with
accrued interest to the date of payment) of all outstanding
Eurodollar Loans due to it hereunder, whereupon all such
Eurodollar Loans then outstanding shall be automatically
converted to an ABR Loan (notwithstanding Section 2.08, but
otherwise subject to Section 2.08(d)), as of the effective
date of such notice as provided in paragraph (b) below,
(ii) the obligation of such Bank to continue or convert to
Eurodollar Loans shall terminate immediately and (iii) each
subsequent request to such Bank for a Eurodollar Loan shall
be deemed to be a request for an ABR Loan. Any Bank giving
such notice shall rescind such notice if the conditions
giving rise to it shall cease to exist. If the Company shall
be prohibited from incurring, continuing or converting to a
Eurodollar Loan from any Bank, Eurodollar Loans shall be
made, continued or converted by the other Banks pro rata in
accordance with their respective Commitments then in effect.
(b) For purposes of Section 2.11(a)(i), a notice
to the Company by any Bank shall be effective, if lawful, and
if any Eurodollar Loans shall then be outstanding, on the
last day of the then current Interest Period or, if there is
more than one current Interest Period, on the last day of
each such Interest Period, respectively; otherwise, such
notice shall be effective on the date of receipt by the
Company.
SECTION 2.12. Indemnity. The Company shall
---------
indemnify each Bank against any loss or expense which such
Bank may sustain or incur as a consequence of any default in
prepayment of the principal amount of any Eurodollar Loan or
any CD Rate Loan or any part thereof or interest accrued
thereon, as and when due and payable by irrevocable notice,
including but not limited to any loss or reasonable expense
sustained or incurred in liquidating or employing deposits
from third parties acquired to effect or maintain such
Eurodollar Loan or CD Rate Loan or any part thereof. Such
Bank shall provide to the Company a statement, supported
where applicable by documentary evidence, explaining the
amount of any such loss or expense, which statement shall be
conclusive absent manifest error.
SECTION 2.13. Money of Account; Payments.
--------------------------
(a) This transaction is an international loan transaction in
which the specification of dollars is of the essence, and
dollars shall be the currency of account and of payment in
all events. The payment obligations of the Company shall not
be discharged by an amount paid in another currency, whether
pursuant to a judgment or otherwise, to the extent that the
amount so paid on prompt conversion to dollars under normal
banking procedures shall not yield the amount of dollars due
hereunder. In the event that any payment made in a currency
other than dollars, whether pursuant to a judgment or
otherwise, upon conversion shall not yield such amount of
dollars, each Bank shall be entitled to demand immediate
payment of, and shall have a separate cause of action for,
the dollar deficiency.
(b) All payments by the Company under this
Agreement and under any other Loan Document shall be made in
immediately available funds at the office of the Bank to
which such payment is due as set forth in the preamble hereof
by 12:00 noon, New York City time, on the date on which such
payment shall be due.
SECTION 2.14. Loan Records. The Loan Account
------------
established and maintained by each Bank hereunder shall
constitute prima facie evidence of such Bank's Loans and any
extension or renewal thereof made pursuant to this Agreement.
SECTION 2.15. The Notes. Should the Company and a
---------
Bank so elect, a Note may be utilized to evidence the Loans
outstanding from such Bank to the Company. Simultaneously
with the execution of a Note by the Company, (i) the
principal balance of all outstanding Loans from the Bank in
whose favor the Note is given shall be recorded on the
schedule attached to the Note (together with other
information, if any, required by the schedule), and (ii) the
Loan Account with respect to the foregoing shall be reduced
to zero. Thereafter, the Note shall be utilized to record
and evidence all Loans from, and all repayments to, the Bank
in whose favor the Note is given, and the Loan Account of
such Bank shall remain at zero.
SECTION 2.16. Use of Proceeds. The proceeds of
---------------
the Loans shall be used for the working capital and other
general corporate purposes of the Company (including, without
limitation, acquisitions).
ARTICLE III
Representations and Warranties
------------------------------
The Company represents and warrants to each of the
Banks that:
SECTION 3.01. Organization, Corporate Powers, etc.
------------------------------------
The Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware
and has the corporate power and authority to own its property
and to carry on its business as now conducted. The Company
has the corporate power to execute, deliver and perform each
of the Loan Documents and to borrow hereunder. Each
Subsidiary of the Company (a) the capital stock of which is
directly owned by the Company and (b) which, with respect to
the most recent fiscal year of the Company, accounted for 10%
or more of the net income of the Company or represented 10%
or more of the Company's total assets (valued as provided in
the last sentence of the definition of Asset Coverage), is a
corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its
incorporation and has the corporate power and authority to
own its property and to carry on its business as now
conducted.
SECTION 3.02. Authority, etc. The execution and
---------------
delivery by the Company of this Agreement on the date hereof
and each other Loan Document on the date thereof and the
performance by the Company of each of the Loan Documents and
the borrowings hereunder (collectively, the "Transactions"):
------------
(a) have been duly authorized by all requisite corporate
action; (b) do not and will not require for their validity
the consent, approval or authorization of any Federal, state
or other governmental authority or regulatory body, foreign
or domestic, or of any stockholder which has not been
obtained; (c) will not violate (i) any provision of law or
any order of any court or any rule, regulation or order of
any other agency of government applicable to the Company,
(ii) the Charter or By-laws of the Company or (iii) any
indenture, agreement or other instrument to which the Company
is a party, or by which it or any of its properties are or
may be bound; (d) will not be in conflict with, result in a
breach of or constitute (alone or with notice or lapse of
time or both) a default under any indenture, agreement or
other instrument referred to in (c)(iii) above; and (e) will
not result in the creation or imposition of any lien, charge
or encumbrance of any nature whatsoever upon any of the
property or assets of the Company. All of the outstanding
shares of capital stock of Chicago Title and Trust Company,
93.8% of the outstanding shares of capital stock of Mineral
Holdings and 96.4% of the outstanding shares of capital stock
of URC Holdings have been validly issued and are fully paid
and nonassessable and are owned by the Company free and clear
of all liens, charges and encumbrances other than those
permitted under Section 6.02 hereof.
SECTION 3.03. Enforceability. This Agreement has
--------------
been duly executed and delivered by the Company and consti-
tutes, and each other Loan Document when executed and
delivered by the Company will constitute, a legal, valid and
binding obligation of the Company, enforceable against the
Company in accordance with its terms.
SECTION 3.04. Financial Statements; No Material
---------------------------------
Adverse Change. (a) The Company has heretofore furnished to
--------------
each Bank a consolidated balance sheet of the Company and its
consolidated Subsidiaries as at December 31, 1994, and the
related statements of earnings and cash flows of the Company
and its consolidated Subsidiaries and changes in common
stockholders' equity of the Company for the 12-month period
then ended, all certified by KPMG Peat Marwick, independent
certified public accountants. All such financial statements
and the related schedules and notes fairly present the
financial position of the Company and its consolidated
Subsidiaries as of such date and the results of their
operations for such period, have been prepared in accordance
with GAAP consistently followed throughout the periods
involved (except as set forth in the notes to such financial
statements) and show all material liabilities, direct or
contingent, of the Company and its consolidated Subsidiaries
as at the date thereof.
(b) As of the date hereof, there has been no
material adverse change in the business or condition,
financial or otherwise, of the Company and its Subsidiaries
considered as a whole, since December 31, 1994. The Company
and its Subsidiaries have no obligations or liabilities,
contingent or otherwise, which are material to the Company
and its Subsidiaries considered as a whole, and which have
not been disclosed in the audited year-end financial
statements (and accompanying schedules and notes) referred to
in paragraph (a) above, other than as expressly disclosed in
such financial statements and accompanying notes.
SECTION 3.05. Title to Properties. The Company
-------------------
has good and marketable title of a quality commensurate with
prudent standards of business practice, to all the properties
and assets it purports to own, including those reflected in
the consolidated balance sheet of the Company and its
Subsidiaries as at December 31, 1994, referred to in
Section 3.04 hereof, except properties and assets which have
been disposed of in the ordinary course of business, or in
transactions reported in Form 8-K or 10-Q reports filed with
the Securities and Exchange Commission, since the date of
such balance sheet. All such properties and assets are free
and clear of mortgages, pledges, liens, charges and other
encumbrances, except as permitted under Section 6.02 hereof.
SECTION 3.06. Litigation. There is no action,
----------
suit or proceeding at law or in equity or by or before any
Governmental Authority pending or, to the knowledge of the
Company, threatened against or directly affecting the
Company, which, if adversely determined, would result in a
Material Adverse Effect.
SECTION 3.07. Taxes. The Company has filed or
-----
caused to be filed all Federal, state and local tax returns
which, to its knowledge, 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 received by it,
other than any taxes or assessments the validity of which the
Company is contesting in good faith by appropriate legal or
administrative proceedings, and for which accounting reserves
have been set aside to the extent required by GAAP.
SECTION 3.08. Agreements. The Company is not in
----------
default in any material respect in the performance, obser-
vance or fulfillment of any of the obligations, covenants or
conditions contained in any material agreement or material
instrument to which it is a party.
SECTION 3.09. Investment Company Act. The Company
----------------------
is not an "Investment Company" or a company "controlled" by
an "Investment Company", within the meaning of the Investment
Company Act of 1940, as amended.
SECTION 3.10. Employee Benefit Plans. No
----------------------
Reportable Event has occurred during the immediately
preceding six-year period with respect to any Plan, and each
Plan has complied and has been administered in all material
respects with applicable provisions of ERISA and the Code.
Except as set forth in Schedule 3.10, the present value of
all benefit liabilities under each Single Employer Plan
maintained by the Company or any Commonly Controlled Entity
(based on those assumptions used to fund such Plan) did not,
as of the last annual valuation date applicable thereto,
exceed the value of the assets of such plan. None of the
Company nor any Commonly Controlled Entity has (a) adopted
any amendment to a Plan that would require the provision of
security pursuant to Section 401(a)(29) of the Code or
Section 307 of ERISA, (b) filed pursuant to Section 412(d) of
the Code or Section 303(d) of ERISA an application for a
waiver of the minimum funding standard with respect to any
Plan, (c) incurred any liability under Title IV of ERISA,
(d) withdrawn or partially withdrawn from any Plan or
Multiemployer Plan, or (e) received from the PBGC or a plan
administrator any notice relating to the intention to
terminate any Plan or Plans or to appoint a trustee to
administer any Plan. None of the Company nor any Commonly
Controlled Entity is aware of (x) the existence with respect
to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA),
whether or not waived, (y) the occurrence of a "prohibited
transaction" (as defined in Section 4975 of the Code or as
described in Section 406 of ERISA) with respect to which
there exists no statutory or administrative exemption and
with respect to which the Company or any Commonly Controlled
Entity, or any person indemnified by the Company or any
Commonly Controlled Entity, is directly or indirectly liable
or (z) any other event or condition with respect to a Plan or
Multiemployer Plan that could reasonably result in liability
of the Company or any Commonly Controlled Entity. Except as
set forth in Schedule 3.10, on the date of this Agreement and
for the immediately preceding six-year period, neither the
Company nor any Commonly Controlled Entity participates in or
is subject to any Multiemployer Plan. In the event that
during the term of this Agreement the Company or any Commonly
Controlled Entity participates in or becomes subject to any
Multiemployer Plans, the liability to which the Company or
any Commonly Controlled Entity would become subject under
ERISA if the Company or any Commonly Controlled Entity were
to withdraw completely from all Multiemployer Plans, if any,
as of the valuation date most closely preceding the date of
determination will not be material to the business,
operations, property or financial or other condition of the
Company. In the event that during the term of this Agreement
the Company or any Commonly Controlled Entity participates in
or becomes subject to any Multiemployer Plans, such
Multiemployer Plans, if any, will neither be in
Reorganization nor Insolvent.
SECTION 3.11. Federal Regulations. No part of the
-------------------
proceeds of any Loan hereunder will be used for any purpose
which violates, or which would be inconsistent with, the
provisions of Regulation U of the Board as now and from time
to time hereafter in effect. If requested by any Bank, the
Company will furnish to each Bank a statement to the
foregoing effect in conformity with the requirements of Form
F.R. U-1 referred to in said Regulation U.
SECTION 3.12. Use of Proceeds. The Company will
---------------
use the proceeds of the Loans only for the purposes specified
in Section 2.16.
SECTION 3.13. Subsidiaries. Schedule 3.13 sets
------------
forth as of the date of this Agreement a list of all
Subsidiaries of the Company and the percentage ownership
interest of the Company therein.
ARTICLE IV
Conditions of Lending
---------------------
The obligation of the Banks to make any Loan shall
be subject to the following conditions precedent:
SECTION 4.01. Representations and Warranties. On
------------------------------
the date hereof and on each date on which the Loans are to be
made, the representations and warranties set forth in
Sections 3.01, 3.02, 3.03 and 3.11 hereof shall be true and
correct with the same effect as though made on and as of such
date.
SECTION 4.02. Opinion of Counsel for the Company.
----------------------------------
On the date hereof each Bank shall have received the
favorable written opinion of Robert M. Hart, Senior Vice
President, General Counsel and Secretary of the Company,
satisfactory to each Bank, (a) with respect to the matters
set forth in Sections 3.01, 3.02, 3.03, 3.06 and 3.09 and
(b) to the effect that this Agreement and each other Loan
Document has been duly executed and delivered by the Company
and constitutes the legal, valid and binding obligation of
the Company, enforceable in accordance with its terms
(subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium and other
laws affecting creditors' rights generally from time to time
in effect and to general principles of equity (regardless of
whether such enforcement is considered in a proceeding in
equity or at law)) and (c) covering such additional matters
relating to the transaction contemplated hereby as the Banks
shall reasonably and timely request.
SECTION 4.03. Approval of Counsel for the Banks.
---------------------------------
On the date hereof and on the date on which the first Loans
are to be made, all legal matters incident to the
satisfaction of the terms and conditions of this Agreement,
each other Loan Document and the borrowings hereunder shall
be satisfactory to the Banks and Cravath, Swaine & Moore,
special counsel for the Banks.
SECTION 4.04. No Default. On the date hereof and
----------
on each date on which the Loans are to be made, the Company
shall be in compliance with all the terms and provisions
contained herein on its part to be observed or performed, and
no Event of Default or event which with notice or lapse of
time or both would constitute an Event of Default shall have
occurred and be continuing.
SECTION 4.05. No Default Certificate. On each
----------------------
date on which the Loans are to be made, the Company shall
have delivered to the Banks a certificate, dated the date on
which such Loan is to be made and signed by an authorized
officer of the Company, confirming compliance with the
conditions precedent set forth in Sections 4.01 and 4.04
hereof.
SECTION 4.06. Supporting Documents. On or prior
--------------------
the date hereof, the Banks shall have received (a) a
certificate of the Secretary of the Company, dated the date
of delivery, certifying (i) that attached thereto is a true
and complete copy of the By-laws of the Company as in effect
on the date of such certificate and at all times since a date
prior to the date of the resolution described in item (ii)
below, (ii) that attached thereto is a true and complete copy
of a resolution adopted by the Board of Directors of the
Company authorizing the execution and delivery of this
Agreement, each other Loan Document (if any) and the
borrowings hereunder and that such resolution has not been
modified, rescinded or amended and is in full force and
effect, (iii) that attached thereto is a true and complete
copy of the Certificate of Incorporation, including all
amendments thereto, of the Company, certified as of a recent
date by the Secretary of State of the State of its
organization and (iv) as to the incumbency and specimen
signature of each officer of the Company executing this
Agreement and each other Loan Document (if any); (b) a
certificate of another officer of the Company as to the
incumbency and signature of the Secretary of the Company; and
(c) such other documents as any Bank or Cravath, Swaine &
Moore, special counsel for the Banks, may reasonably and
timely request.
SECTION 4.07. Termination of Prior Agreement. As
------------------------------
of the date on which the first Loans are to be made, the
Prior Agreement shall have been terminated; provided,
--------
however, that all Loans and other amounts outstanding
-------
under the Prior Agreement shall continue to be obligations of
the Company hereunder pursuant to Section 2.01 and shall
constitute the first Loans hereunder.
ARTICLE V
Affirmative Covenants
---------------------
The Company covenants and agrees with each Bank
that, so long as this Agreement shall remain in effect or any
Loan, interest, Fee or other amount incurred hereunder shall
be unpaid, unless the Banks shall otherwise consent in
writing, it will:
SECTION 5.01. Corporate Existence. Do or cause to
-------------------
be done all things necessary to keep in full force and effect
its corporate existence.
SECTION 5.02. Business and Properties. (a) At
-----------------------
all times do or cause to be done all things necessary to
preserve, renew and keep in full force and effect the rights,
licenses, permits and franchises necessary to, or used or
useful in the conduct of, its business; provided, however,
-------- -------
that the Company will not be required to preserve, renew or
maintain any right, license, permit or franchise if the Board
of Directors of the Company shall determine that the
preservation thereof is no longer desirable in the conduct of
the business of the Company, (b) comply with all laws and
regulations applicable to the operation of its business
whether now in effect or hereafter enacted and with all other
applicable laws and regulations, if the failure to so comply
might result in a Material Adverse Effect and (c) keep its
property used or useful in the conduct of its business in
good repair, working order and condition and from time to
time make, or cause to be made, all needful and proper
repairs, renewals and replacements, betterments and improve-
ments thereto, all as in the judgment of the Company may be
necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all
times; provided, however, that nothing in this Section 5.02
-------- -------
shall prevent the Company from discontinuing the operation or
maintenance of any of its properties if such discontinuance
is, in the judgment of the Board of Directors of the Company,
desirable in the conduct of its business.
SECTION 5.03. Insurance. (a) Maintain insurance
---------
with insurers believed by the Company to be responsible on
its insurable properties to such extent and against such
risks, including fire and other risks insured against by
extended coverage, as is customary with companies in the same
or similar businesses and (b) maintain in full force and
effect public liability insurance against tort claims to such
extent and in such amount as the Company shall reasonably
deem necessary; provided, however, that, in lieu of or
-------- -------
supplemental to any insurance referred to in this
Section 5.03, the Company may adopt such other plan or method
of protection in respect of its properties or other risks,
whether by establishment of an insurance fund or reserve or
by otherwise conforming to the practices of similar
corporations maintaining systems of self insurance, as may be
determined by the Company in its reasonable business
judgment.
SECTION 5.04. Obligations and Taxes. Pay and
---------------------
discharge promptly all taxes, assessments and governmental
charges or levies imposed upon it or in respect of its
property before the same shall become in default, as well as
all lawful claims, for labor, materials and supplies or
otherwise, which, if unpaid, might give rise to liens or
charges upon such properties or any part thereof; provided,
--------
however, that the Company shall not be required to pay and
-------
discharge or to cause to be paid and discharged any tax,
assessment, charge, levy or claim so long as the validity
thereof shall be contested in good faith by appropriate legal
or administrative proceedings, and the Company shall set
aside on its books reserves with respect thereto to the
extent required by GAAP.
SECTION 5.05. Financial Statements. Furnish to
--------------------
each Bank:
(a) within 120 days after the end of each fiscal
year of the Company, a balance sheet of the Company and
consolidated and combining balance sheets of the Company
and its consolidated Subsidiaries as at the end of such
fiscal year and respective related statements of
earnings, cash flows and changes in common stockholder's
equity of the Company and consolidated and combining
statements of earnings and a consolidated statement of
cash flows of the Company and its consolidated
Subsidiaries for such year, all the foregoing financial
statements (with the exception of any combining
statements) to be accompanied by the report thereon of
KPMG Peat Marwick, or other independent certified public
accountants reasonably acceptable to the Banks;
(b) within 60 days after the end of each quarter in
each fiscal year of the Company, other than the fourth
quarter, a balance sheet of the Company, a consolidated
balance sheet of the Company and its consolidated
Subsidiaries and a combining balance sheet of the
Company and its consolidated Subsidiaries and related
consolidated statements of earnings and cash flows of
the Company and its consolidated Subsidiaries and a
combining statement of earnings for such quarter and (in
the case of the second and third quarters) for the
portion of such fiscal year ending with such quarter,
all in reasonable detail and certified, subject to
changes resulting from usual recurring year-end
adjustments, by a financial officer of the Company;
(c) concurrently with (a) and (b) above, a certif-
icate of the firm or person referred to therein
certifying that, in the case of such firm, nothing has
come to its attention which would constitute an Event of
Default, or any event which with notice or lapse of time
or both would constitute such an Event of Default, and,
in the case of such person, to the best of his knowledge
no Event of Default, nor any event which with notice or
lapse of time or both would constitute such an Event of
Default, has occurred or, in each case, if such an Event
of Default or event has occurred or been discovered,
specifying the nature and extent thereof, which certif-
icate shall set forth the computations in reasonable
detail as to the compliance with Sections 6.06, 6.07 and
6.08 (as at the date of the balance sheet delivered
therewith);
(d) as soon as practicable, but in any event within
five days after the same are sent, copies of all
financial statements and reports which the Company sends
to its stockholders, and within five days after the same
are filed, copies of all financial statements and
reports which the Company may make to, or file with, the
Securities and Exchange Commission or any successor or
analogous governmental authority; and
(e) promptly, from time to time, such other
information regarding the operations, business affairs
and financial condition of the Company as any Bank may
reasonably request.
SECTION 5.06. Litigation Notice. Give each Bank
-----------------
prompt notice of any action, suit or proceeding at law or in
equity or by or before any governmental instrumentality or
other agency which, if adversely determined, would result in
a Material Adverse Effect.
SECTION 5.07. ERISA. (a) Comply in all material
-----
respects with the provisions of ERISA and the Code applicable
to the Plans and (b) furnish to each Bank, as soon as
possible, and in any event within 10 days after any executive
officer of the Company or any Subsidiary knows or has reason
to know of the following events: (i) the occurrence or
expected occurrence of any Reportable Event with respect to
any Plan or any withdrawal from, or the termination,
Reorganization or Insolvent condition of, any Multiemployer
Plan, (ii) the occurrence of any event or existence of any
circumstances that would have violated any of the provisions
of the third or fourth sentences of Section 3.10 of this
Agreement if such event or circumstances had been in
existence at the time of this Agreement, or (iii) the
institution of proceedings or the taking of any other action
by the PBGC, the Company or any Commonly Controlled Entity,
or any Multiemployer Plan with respect to the withdrawal
from, or the terminating, Reorganization or Insolvency of,
any Plan, a certificate of the chief financial officer of the
Company setting forth the details thereof and the action that
the Company or the Commonly Controlled Entity proposes to
take with respect thereto.
SECTION 5.08. Notice of Default. In the event any
-----------------
officer of the Company knows of any Event of Default which
shall have occurred or knows of the occurrence of any event
which, upon notice or lapse of time or both, would constitute
an Event of Default, promptly furnish to each Bank a written
statement as to such occurrence, specifying the nature and
event thereof and the action (if any) which is proposed to be
taken with respect thereto.
SECTION 5.09. Maintaining Records; Access to
------------------------------
Properties and Inspections. Maintain all financial records
--------------------------
in accordance with GAAP and permit any representatives
designated by any Bank to visit and inspect the financial
records and the properties of the Company or any Subsidiary
at reasonable times and as often as requested and to make
extracts from and copies of such financial records, and
permit any representatives designated by any Bank to discuss
the affairs, finances and condition of the Company or any
Subsidiary with the officers thereof and independent
accountants therefor.
ARTICLE VI
Negative Covenants
------------------
The Company covenants and agrees that, so long as
this Agreement shall remain in effect or any Loan, interest,
Fee or other amount incurred hereunder shall be unpaid,
unless the Banks shall otherwise consent in writing, it will
not:
SECTION 6.01. Indebtedness. Incur, create, assume
------------
or permit to exist any Indebtedness of the Company, except:
(a) Indebtedness incurred hereunder;
(b) Indebtedness evidenced by the Subordinated
Exchangeable Debentures;
(c) other Indebtedness of the Company (exclusive of
Indebtedness consisting of guarantees) not exceeding
$100,000,000 in the aggregate at any one time
outstanding;
(d) Indebtedness consisting of guarantees; and
(e) other Indebtedness of the Company; provided
that the proceeds thereof are used to reduce the
Commitments (whereupon the outstanding unpaid principal
balance of each Note given in favor of a Bank shall be
prepaid in an amount equal to the excess of the
outstanding unpaid principal balance of such Note over
the Commitment of such Bank as so reduced in accordance
with Section 2.08).
SECTION 6.02. Liens. Incur, create, assume or
permit to exist any mortgage, pledge, security interest,
lien, charge or other encumbrance of any nature whatsoever (a
"Lien") on any of its property or assets, whether owned at
----
the date hereof or hereafter acquired, except:
(a) Liens incurred as an incident to and in the
ordinary course of its business; and
(b) any other Liens securing Indebtedness or
obligations which in the aggregate do not exceed 5% of
the Tangible Net Worth of the Company;
provided, that the Company shall not create or suffer to
--------
exist any Liens whatsoever with respect to the capital stock
of Chicago Title and Trust Company, Mineral Holdings, World
Minerals, URC Holdings or Underwriters Reinsurance (other
than those Liens existing as of the date hereof, as listed on
Schedule 6.02).
SECTION 6.03. Guarantees. Guarantee, endorse,
----------
become surety for, or otherwise in any way become or be
responsible for, the obligations of any other Person,
including, but not limited to, by agreement to maintain net
worth or working capital of any other Person, agreement to
purchase the Indebtedness of any other Person or agreement
for the furnishing of funds to any other Person for the
purpose of paying or discharging the liabilities of any other
Person (by way of stock purchase, capital contribution,
advance or loan, or contract for the purchase of merchandise,
materials, supplies or other property which provides that
payment for such merchandise, materials, supplies or other
property shall be made regardless of whether delivery of such
merchandise, materials, supplies or other property is ever
made or tendered), or obtain upon its credit the issuance of
any letter of credit for the discharge of the obligations of
any other Person, except:
(a) endorsement of negotiable instruments for
deposit or collection in the ordinary course of
business;
(b) guarantees and other responsibilities for
obligations of its Subsidiaries created in the ordinary
course of business for compliance with or for obliga-
tions under workers' compensation laws, unemployment
insurance, old age pensions and other social security
benefits; and
(c) other guarantees and other responsibilities for
obligations of other persons within the purview of this
Section 6.03 not exceeding $30,000,000 in the aggregate
at any one time outstanding.
SECTION 6.04. Rental Obligations. Incur, create
------------------
or assume any rental obligation for real or personal property
under any lease, rental or other arrangements for the use of
property of any other person if the aggregate of such fixed
rental obligations for such personalty and realty (including
such rental obligations currently in effect) of the Company
would exceed $20,000,000 at any one time outstanding. For
purposes of this Section 6.04, rental obligations shall mean
any commitment to make any direct or indirect payment,
whether as rent or otherwise, under any lease or rental of
personal property or other arrangements for the use of
personal property of others and any such payment made in
advance, but rental obligations shall not include any amounts
payable under any capitalized lease which constitutes
Indebtedness for the purposes of Section 6.01.
SECTION 6.05. Sale of Assets, Consolidation,
------------------------------
Merger, etc. (a) Sell, lease, transfer or otherwise dispose
------------
of any properties or assets, tangible or intangible, now
owned or hereafter acquired, representing more than 50% of
the total assets of the Company (valued as provided in the
last sentence of the definition of Asset Coverage); provided,
--------
notwithstanding the above, that the Company shall in no event
sell, lease, transfer or otherwise dispose of any of the
capital stock of Chicago Title and Trust Company, World
Minerals or Underwriters Reinsurance, unless the proceeds
therefrom are used to reduce the Commitments (whereupon the
outstanding unpaid principal balance of each Note given in
favor of a Bank shall be prepaid in an amount equal to the
excess of the outstanding unpaid principal balance of such
Note over the Commitment of such Bank as so reduced in
accordance with Section 2.08), nor permit Chicago Title and
Trust Company, Mineral Holdings or URC Holdings directly or
indirectly to sell, lease, transfer or otherwise dispose of
any properties or assets, tangible or intangible, now owned
or hereafter acquired, representing more than 50% of the
total consolidated operating assets of Chicago Title and
Trust Company, Mineral Holdings or URC Holdings, as the case
may be (valued as provided in the last sentence of the
definition of Asset Coverage).
(b) Consolidate with or merge into any other
corporation, or permit any corporation to merge into it nor
permit Chicago Title and Trust Company, Mineral Holdings,
World Minerals, URC Holdings or Underwriters Reinsurance to
consolidate with or merge into any other corporation, or
permit any corporation to merge into it; provided, however,
-------- -------
that the Company, Chicago Title and Trust Company, World
Minerals or Underwriters Reinsurance, as the case may be, may
consolidate with or merge into any other corporation, or
permit any corporation to merge into it if:
(i) the surviving corporation shall be the Company,
Chicago Title and Trust Company, World Minerals or
Underwriters Reinsurance, as the case may be, and the
Company shall maintain Control of the surviving
corporation;
(ii) as of the date 20 Business Days prior to the
execution of the agreement providing for such merger,
the fair value of the consideration to be paid in
connection therewith does not exceed the greater of
(x) $20,000,000 or (y) 10% of the total assets of the
Company, World Minerals or Underwriters Reinsurance, as
the case may be. For the purposes of this Section
6.05(b), the consideration to be paid in connection with
any merger shall be valued as provided in the last
sentence of the definition of Asset Coverage; and
(iii) no Event of Default or an event which upon
notice or lapse of time or both would become an Event of
Default hereunder has occurred and is continuing.
SECTION 6.06. Tangible Net Worth. As at the end
------------------
of any fiscal quarter of the Company, permit Tangible Net
Worth to be less than $750,000,000.
SECTION 6.07. Asset Coverage. Permit Asset
--------------
Coverage to be less than 4.0 to 1.0 for any period of more
than 30 days.
SECTION 6.08. Dividends. Declare or pay any
---------
dividends (other than dividends payable solely in shares of
its capital stock) or make any other distribution, whether in
cash, property, securities or a combination thereof, with
respect to any shares of the capital stock of the Company,
unless:
(a) after giving effect thereto, the aggregate of
all dividends declared or paid on the Company's capital
stock subsequent to December 31, 1994, shall be less
than the sum of (x) the Company's net earnings subse-
quent to December 31, 1994, (y) the cash proceeds
received by the Company from the issuance of any shares
of its capital stock after December 31, 1994, and
(z) $50,000,000;
(b) the Asset Coverage at the time of declaration
of said dividend would be at least 4.0 to 1.0 after
taking into account the amount of such dividends; and
(c) no Event of Default or an event which upon
notice or lapse of time or both would become an Event of
Default hereunder has occurred and is continuing.
For the purposes of this Section 6.08 the words "dividend"
and "distribution" shall include any purchase, redemption,
acquisition, or retirement by the Company (directly or
indirectly) of shares of any class of capital stock of the
Company, other than any purchase, redemption, acquisition or
retirement of shares of any class of capital stock pursuant
to any exchange by the Company therefor of shares of capital
stock of the Company or unsecured indebtedness of the Company
(which by its terms is specifically made subordinate and
junior in right of payment to the Loans hereunder in the
event that the outstanding unpaid principal balances of the
Notes (together with interest accrued) become immediately due
and payable under Article VII hereof); provided, however,
that the purchase,
-------- -------
redemption, acquisition or retirement by the Company
(directly or indirectly), at any time and from time to time
subsequent to the date of this Agreement, of up to an
aggregate of 2,000,000 shares of its common stock (adjusted
to take account of any stock split or dividend or
consolidation) shall not be considered a "dividend" or
"distribution".
ARTICLE VII
Defaults
--------
In the case of the happening of any of the
following events (herein sometimes called an "Event of
--------
Default"):
-------
(a) any representation or warranty made by Company
herein or in any certificate, report, financial
statement or other instrument furnished pursuant to this
Agreement shall prove to have been false or misleading
in any material respect when made or furnished;
(b) the Company shall fail to pay any installment
of principal on any Loan when and as the same shall
become due and payable, whether at the due date thereof,
by acceleration or otherwise;
(c) the Company shall fail to pay the interest or
any Fee incurred hereunder when and as the same shall
become due and payable, whether at the due date thereof,
by acceleration or otherwise, and such failure shall
continue for more than two days following the date such
payment was due;
(d) any event shall occur or fail to occur if the
effect of such occurrence or failure is to accelerate
the maturity of any Indebtedness for borrowed money of
the Company (other than the Loans hereunder), or any
Indebtedness having a principal amount in excess of
$5,000,000 of any Subsidiary for which Indebtedness the
Company is a guarantor, or to permit the holder thereof
(or a trustee on behalf of such holder) to cause such
Indebtedness to become due prior to the stated maturity
thereof and such occurrence or failure shall not have
been remedied within any applicable period of grace, or
any such Indebtedness shall not be paid when due,
whether by acceleration or otherwise;
(e) default shall be made in the due observance or
performance of any covenant, condition or agreement to
be observed or performed pursuant to Articles V and VI
hereof (other than those required pursuant to Sec-
tions 5.02, 5.03, 5.05, 5.07 and 5.09);
(f) default shall be made in the due observance or
performance or any other covenant, condition or agree-
ment to be observed or performed pursuant to the terms
hereof and such default shall continue unremedied for 15
days after written notice thereof to the Company from
any Bank;
(g) the filing by the Company of a petition or
answer or consent seeking relief under Title 11 of the
United States Code, as now or hereafter constituted, or
any other applicable Federal or state bankruptcy,
insolvency or other similar law, or the consent by the
Company to the institution of proceedings thereunder or
to the filing of any such petition or to the appointment
or taking possession of a receiver, liquidator,
assignee, trustee, custodian, sequestrator (or other
similar official) of the Company or of any substantial
part of its property, or the making by the Company of an
assignment for the benefit of creditors, or the failure
of the Company generally to pay its debts as such debts
become due, or the taking of corporate action by the
Company in furtherance of any such action;
(h) the filing of a petition or the commencement of
a case in respect of the Company under Title 11 of the
United States Code, as now or hereafter constituted, or
any other applicable Federal or state bankruptcy,
insolvency or other similar law, or any order of a court
appointing a receiver, liquidator, assignee, trustee,
sequestrator (or similar official) of the Company, or of
any substantial part of its property, or ordering the
winding up or liquidation of the affairs of the Company
and an order for relief shall be entered against the
Company in any such case or any such case or order shall
continue unstayed and in effect for a period of 60
consecutive days;
(i) (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, (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 commencement of
proceedings or appointment of a trustee is, in the
reasonable opinion of the Banks, likely to result in the
termination of such Plan for purposes of Title IV of
ERISA, (d) any Single Employer Plan shall terminate for
purposes of Title IV of ERISA, (e) the Company or any
Commonly Controlled Entity shall, or is, in the
reasonable opinion of the Banks, 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 (f) above, such event or condition, together
with all other such events or conditions, if any, has
any reasonable likelihood of subjecting the Company or
any of its Subsidiaries to any tax, penalty or other
liabilities which, if the then present value thereof
(estimated in good faith by the Company) were deducted
from the then total assets of the Company (valued as
provided in the last sentence of the definition of Asset
Coverage), would cause the Company to be in violation of
any covenant or agreement to be observed or performed
pursuant to Articles V and VI hereof;
(j) a final judgment for the payment of money in
excess of $5,000,000 in the aggregate at any one time
outstanding shall be rendered against the Company and
the same shall remain undischarged for a period of
60 days during which execution shall not be effectively
vacated or stayed; or
(k) there shall have occurred a Change in Control;
then, and in every such event (other than an event specified
in paragraph (g) or (h) above) and at any time thereafter
during the continuance of such event any Bank may, by written
notice to the Company with a copy to the other Banks, take
either or both of the following actions: (i) terminate its
Commitment and (ii) declare the outstanding unpaid principal
balance of the Note given in favor of such Bank (together
with interest accrued) to be forthwith due and payable,
whereupon the same shall become forthwith due and payable
without presentment, demand, protest or any other notice of
any kind, all of which are hereby expressly waived, anything
contained herein to the contrary notwithstanding; and, in any
event specified in paragraph (g) or (h) above, the
Commitments shall automatically terminate and the outstanding
unpaid principal balance of the Note given in favor of such
Bank (together with interest accrued) shall automatically
become immediately due and payable without presentment,
demand, protest or notice of any kind, all of which are
hereby expressly waived, anything contained herein to the
contrary notwithstanding. The failure of a Bank to give any
notice described above to the other Banks shall not affect
the validity of such notice to the Company.
ARTICLE VIII
Miscellaneous
-------------
SECTION 8.01. Modification. No modification,
------------
amendment or waiver of any of the provisions of this
Agreement or any other Loan Document or consent to any
departure by the Company therefrom shall be effective unless
the same shall be in writing and (i) in the case of any
waiver or consent, signed by all Banks, and then such waiver
or consent shall be effective only in the specific instance
and for the purpose for which given or (ii) in the case of
any amendment, signed by the Company and all Banks; provided,
--------
however, that in the case where a Bank has assigned to one or
-------
more assignees all or a portion of its interests, rights and
obligations under this Agreement pursuant to Section 8.11,
any such modification, amendment or waiver shall require the
written consent of the Company and the Required Banks, except
that any such modification, amendment or waiver to any of the
provisions of Section 2.04, 2.05 or 8.02 or any other
provision in this Agreement or the other Loan Documents (if
any) regarding the payment of principal or interest shall
require the written consent of the Company and all Banks.
Neither any failure nor any delay on the part of any Bank in
exercising any right or privilege hereunder shall operate as
a waiver thereof. Each Bank and each holder of a Note shall
be bound by any waiver, amendment or modification authorized
by this Section regardless of whether its Note shall have
been marked to make reference thereto, and any consent by any
Bank or holder of a Note pursuant to this Section shall bind
any person subsequently acquiring a Note from it, whether or
not such Note shall have been so marked.
SECTION 8.02. Expenses. The Company will pay all
--------
out-of-pocket expenses incurred by the Banks in connection
with the preparation of this Agreement and the other Loan
Documents or in connection with any amendments, modifications
or waivers of the provisions hereof or thereof (whether or
not the transactions hereby contemplated shall be
consummated), or incurred by the Banks in connection with the
enforcement and protection of the rights of the Banks in
connection with this Agreement and the other Loan Documents
or in connection with the Loans made or the Notes issued
hereunder, including, but not limited to, the fees and
disbursements of Cravath, Swaine & Moore, special counsel for
the Banks, and, in connection with any such amendment,
modification or waiver or any such enforcement or protection,
the fees and disbursements of any other counsel for any of
the Banks. The provisions of this Section 8.02 shall remain
operative and in full force and effect regardless of the
expiration of the term of this Agreement, the consummation of
the transactions contemplated hereby, the repayments of any
of the Loans, the invalidity or unenforceability of any term
or provision of this Agreement or any other Loan Document, or
any investigation made by or on behalf of any Bank. All
amounts due under this Section 8.02 shall be payable on
written demand therefor.
SECTION 8.03. Indemnification. The Company agrees
---------------
to indemnify each Bank from and hold each of them harmless
against any and all liabilities, claims, damages or expenses
incurred by any of them (excluding any liabilities, claims,
damages or expenses of any Bank arising from gross
negligence, fraud or breach of fiduciary duty owed to third
parties on the part of such Bank or arising from any
assertion, putative or otherwise, as to the legal capacity or
authority of any Bank to execute and deliver this Agreement
or in respect of any law governing the corporate powers of
any Bank to perform its obligations hereunder) arising out of
or by reason of the consummation of the transactions
contemplated by this Agreement, or the use or contemplated
use of proceeds of the Loans, including, without limitation,
the fees and disbursements of counsel incurred in connection
with any investigation, litigation or other proceedings
(whether or not any Bank is a party thereto) arising out of
or by reason of any of the aforesaid; provided that the
--------
foregoing shall not apply to any liability, claim, damage or
expense (i) incurred by any Bank against any other Bank here-
under, (ii) arising from the breach by any Bank of any of its
obligations to the Company hereunder or (iii) arising out of
any commitment made by any Bank which would be breached by
performance of such Bank's obligations hereunder. Each Bank
will promptly give the Company written notice of the
assertion of any claim which it believes is subject to the
indemnity set forth in this Section 8.03 and will, upon the
request of the Company, promptly furnish the Company with all
material in its possession relating to such claims or the
defense thereof to the extent that such Bank may do so
without breach of duty to others.
SECTION 8.04. Set-off. (a) Each Bank agrees that
-------
if it shall, through the exercise of a right of banker's
lien, set-off or counterclaim against the Company, obtain
payment in respect of one or more Loans made by it as a
result of which the unpaid portion of the Loans made by it is
proportionately less than the unpaid portion of the Loans
made by any other Bank (i) it shall simultaneously purchase
from such other Bank a participation in the Loans made by
such other Bank, so that the aggregate unpaid principal
amount of all Loans and participations in Loans made by each
Bank shall be in the same proportion to the aggregate unpaid
principal amounts of all Loans then outstanding as the
principal amount of such Loans made by it prior to such
exercise of banker's lien, set-off or counterclaim and
(ii) such other adjustments shall be made from time to time
as shall be equitable to ensure that all the Banks share such
payment pro rata; provided, however, that if any such
-------- -------
purchase or purchases shall be made pursuant to clause (i)
above and the payment giving rise thereto shall be recovered,
such purchase or purchases shall be rescinded to the extent
of such recovery and the purchase price or prices restored
without interest.
(b) If an Event of Default shall have occurred and
be continuing, each Bank is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to
set-off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and
other indebtedness at any time owing by such Bank to or for
the credit or the account of the Company against any of and
all the obligations of the Company now or hereafter existing
under this Agreement and other Loan Documents held by such
Bank, irrespective of whether or not such Bank shall have
made any demand under this Agreement or such other Loan
Document and although such obligations may be unmatured. The
rights of each Bank under this Section 8.04(b) are in
addition to other rights and remedies (including other rights
of set-off) which such Bank may have.
SECTION 8.05. APPLICABLE LAW. THIS AGREEMENT AND
--------------
THE OTHER LOAN DOCUMENTS SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 8.06. Notices. Notices and other
-------
communications provided for herein shall be in writing and
shall be delivered by hand or overnight courier service,
mailed or sent by telex, telecopy or other telegraphic commu-
nications equipment of the sending party, as follows:
(a) if to the Company, to it at Park Avenue Plaza,
New York, New York 10055, Attention of Secretary
(Telecopy No. 212-759-8149); or
(b) if to any Bank, to it at its address (or
telecopy number) set forth on Schedule 2.01 or in the
Assignment and Acceptance pursuant to which such Bank
shall have become a party hereto.
All notices and other communications given to any party
hereto in accordance with the provisions of this Agreement
shall be deemed to have been given on the date of receipt if
delivered by hand or overnight courier service or sent by
telex, telecopy or other telegraphic communications equipment
of the sender, or on the date five Business Days after
dispatch by certified or registered mail if mailed, in each
case delivered, sent or mailed (properly addressed) to such
party as provided in this Section 8.06 or in accordance with
the latest unrevoked direction from such party given in
accordance with this Section 8.06.
SECTION 8.07. Survival of Agreement. All
---------------------
covenants, agreements, representations and warranties made in
this Agreement and in the certificates or other instruments
prepared or delivered in connection with or pursuant to this
Agreement or any other Loan Document shall be considered to
have been relied upon by the Banks and shall survive the
making by the Banks of the Loans hereunder, and the execution
and delivery to the Banks of the Notes evidencing such Loans,
regardless of any investigation made by the Banks or on their
behalf, and shall continue in full force and effect so long
as any amounts payable hereunder or thereunder shall be
outstanding and unpaid. Whenever in this Agreement any of
the parties hereto is referred to, such reference shall be
deemed to include the successors and assigns of such party,
and all covenants, promises and agreements by or on behalf of
the Company or the Banks which are contained in this
Agreement shall inure to the benefit of the successors and
assigns of each Bank.
SECTION 8.08. Extension of Maturity. If any
---------------------
payment of the outstanding unpaid principal balances of the
Notes (together with interest accrued) or any Fee or other
amount would become due and payable on other than a Business
Day, such payment shall instead become due on the next
succeeding Business Day, and, in the case of principal,
interest shall be payable thereon at the rate herein
specified during such extension; provided, however, that any
-------- -------
payment on a Eurodollar Loan shall be on the last Business
Day of the Interest Period for such Loan as set forth in
clause (i) of the definition of Interest Period.
SECTION 8.09. Severability. In case any one or
------------
more of the provisions contained in this Agreement should be
invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining
provisions contained herein shall not in any way be affected
or impaired thereby. The parties shall endeavor in good-
faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the
invalid, illegal or unenforceable provisions.
SECTION 8.10. Counterparts. This Agreement may be
------------
executed in two or more counterparts, each of which shall
constitute an original but all of which, when taken together,
shall constitute but one instrument, and shall become
effective when copies hereof which, when taken together, bear
the signatures of each of the parties hereto shall be
delivered to the Company and the Banks.
SECTION 8.11. Successors and Assigns.
-----------------------
(a) Whenever in this Agreement any of the parties hereto is
referred to, such reference shall be deemed to include the
successors and assigns of such party; and all covenants,
promises and agreements by or on behalf of the Company or the
Banks that are contained in this Agreement shall bind and
inure to the benefit of their respective successors and
assigns.
(b) Each Bank may assign to one or more assignees
all or a portion of its interests, rights and obligations
under this Agreement (including all or a portion of its
Commitment and the Loans at the time owing to it and the
Notes held by it); provided, however, that (i) the
-------- -------
Company must give its prior written consent to such
assignment (which consent shall not be unreasonably
withheld), (ii) the amount of the Commitment of the assigning
Bank subject to each such assignment (determined as of the
date the Assignment and Acceptance with respect to such
assignment is delivered to such Bank) shall not be less than
$5,000,000 and the amount of the Commitment of such Bank
remaining after such assignment shall not be less than
$5,000,000 or shall be zero and (iii) the parties to each
such assignment shall execute and deliver to the assigning
Bank an Assignment and Acceptance. From and after the
effective date specified in each Assignment and Acceptance,
which effective date shall be at least five Business Days
after the execution thereof, (A) the assignee thereunder
shall be a party hereto and, to the extent of the interest
assigned by such Assignment and Acceptance, become and have
the rights and obligations of a Bank under this Agreement and
(B) the assigning Bank thereunder shall, to the extent of the
interest assigned by such Assignment and Acceptance, be
released from its obligations under this Agreement (and, in
the case of an Assignment and Acceptance covering all or the
remaining portion of an assigning Bank's rights and
obligations under this Agreement, such Bank shall cease to be
a party hereto but shall continue to be entitled to the
benefits of Sections 2.10, 2.12 and 8.02, as well as to any
Fees or other amounts accrued for its account and not yet
paid).
(c) By executing and delivering an Assignment and
Acceptance, the assigning Bank thereunder and the assignee
thereunder shall be deemed to confirm to and agree with each
other and the other parties hereto as follows: (i) such
assigning Bank warrants that it is the legal and beneficial
owner of the interest being assigned thereby free and clear
of any adverse claim and that its Commitments, and the
outstanding balances of its Loans, in each case without
giving effect to assignments thereof which have not become
effective, are as set forth in such Assignment and
Acceptance, (ii) except as set forth in (i) above, such
assigning Bank makes no representation or warranty and
assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with
this Agreement, or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this
Agreement, any other Loan Document or any other instrument or
document furnished pursuant hereto, or the financial
condition of the Company or any Subsidiary or the performance
or observance by the Company or any Subsidiary of any of its
obligations under this Agreement, any other Loan Document or
any other instrument or document furnished pursuant hereto;
(iii) such assignee represents and warrants that it is
legally authorized to enter into such Assignment and
Acceptance; (iv) such assignee confirms that it has received
a copy of this Agreement, together with copies of the most
recent financial statements delivered pursuant to
Section 5.05 and such other documents and information as it
has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance;
(v) such assignee will independently and without reliance
upon such assigning Bank or any other Bank and based on such
documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or
not taking action under this Agreement; and (vi) such
assignee agrees that it will perform in accordance with their
terms all the obligations which by the terms of this
Agreement are required to be performed by it as a Bank.
(d) Upon its receipt of a duly completed
Assignment and Acceptance executed by an assigning Bank and
an assignee together with the Note or Notes subject to such
assignment (if applicable), the assigning Bank shall
(i) accept such Assignment and Acceptance and (ii) give
prompt notice thereof to the other Banks and the Company.
Within five Business Days after receipt of notice, the
Company, at its own expense, shall execute and deliver to the
assignee, in exchange for the surrendered Note or Notes, if
any, a new Note or Notes to the order of such assignee in a
principal amount equal to the applicable Commitment assumed
by it pursuant to such Assignment and Acceptance and, if the
assigning Bank has retained a Commitment, a new Note to
replace the old Note, if any, to the order of such assigning
Bank in a principal amount equal to the applicable Commitment
retained by it. Such new Note or Notes shall be in an
aggregate principal amount equal to the aggregate principal
amount of such surrendered Note; such new Notes shall be
dated the date of the surrendered Notes which they replace
and shall otherwise be in substantially the form of Exhibit A
hereto, as appropriate. Canceled Notes shall be returned to
the Company.
(e) Each Bank may without the consent of the
Company sell participations to one or more banks or other
entities in all or a portion of its rights and obligations
under this Agreement (including all or a portion of its
Commitment and the Loans owing to it and the Notes held by
it, if any); provided, however, that (i) such Bank's
-------- -------
obligations under this Agreement shall remain unchanged,
(ii) such Bank shall remain solely responsible to the other
parties hereto for the performance of such obligations,
(iii) the participating banks or other entities shall be
entitled to the benefit of the cost protection provisions
contained in Sections 2.10 and 2.12 to the same extent as if
they were Banks and (iv) the Company and the other Banks
shall continue to deal solely and directly with such Bank in
connection with such Bank's rights and obligations under this
Agreement, and such Bank shall retain the sole right to
enforce the obligations of the Company relating to the Loans
and to approve any amendment, modification or waiver of any
provision of this Agreement (other than amendments,
modifications or waivers decreasing any fees payable
hereunder or the amount of principal of or the rate at which
interest is payable on the Loans, extending any scheduled
principal payment date or date fixed for the payment of
interest on the Loans or changing or extending the
Commitments).
(f) Any Bank or participant may, in connection
with any assignment or participation or proposed assignment
or participation pursuant to this Section 8.11, disclose to
the assignee or participant or proposed assignee or
participant any information relating to the Company furnished
to such Bank by or on behalf of the Company; provided that,
--------
prior to any such disclosure of information designated by the
Company as confidential, each such assignee or participant or
proposed assignee or participant shall execute an agreement
whereby such assignee or participant shall agree (subject to
customary exceptions) to preserve the confidentiality of such
confidential information and to use such information solely
for purposes related to this Agreement.
(g) Any Bank may at any time assign all or any
portion of its rights under this Agreement and the Notes
issued to it, if any, to a Federal Reserve Bank; provided
--------
that no such assignment shall release a Bank from any of its
obligations hereunder.
(h) The Company shall not assign or delegate any
of its rights or duties hereunder without the prior written
consent of all of the Banks.
SECTION 8.12. Headings. Article and Section
--------
headings and the Table of Contents used herein are for
convenience of reference only, are not part of this Agreement
and are not to affect the construction of, or to be taken
into consideration in interpreting, this Agreement.
SECTION 8.13. Entire Agreement. This Agreement
----------------
and the other Loan Documents constitute the entire contract
between the parties relative to the subject matter hereof.
Any previous agreement among the parties with respect to the
subject matter hereof is superseded by this Agreement and the
other Loan Documents. Nothing in this Agreement or in the
other Loan Documents, expressed or implied, is intended to
confer upon any party other than the parties hereto and
thereto any rights, remedies, obligations or liabilities
under or by reason of this Agreement or the other Loan
Documents.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed by their duly authorized
officers, all as of the day and year first above written.
ALLEGHANY CORPORATION,
by /s/ David B. Cuming
----------------------------
Name: David B. Cuming
Title: Senior Vice President
CHEMICAL BANK,
by /s/ Peter C. Eckstein
----------------------------
Name: Peter C. Eckstein
Title: Vice President