New Jersey
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1-640
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13-5267260
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(State or other jurisdiction of incorporation)
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(Commission
File Number)
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(IRS Employer
Identification No.)
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5430 LBJ Freeway, Suite 1700, Dallas, Texas
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75240-2697
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(Address of principal executive offices)
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(Zip Code)
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(Former name or former address, if changed since last report.)
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☐
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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☐
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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☐
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Item 1.01 |
Entry into a Material Definitive Agreement
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Item 2.03 |
Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant
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(d)
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Exhibits
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Item No.
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Description
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10.1*
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Loan Agreement between NLKW Holding, LLC, as Borrower, and Valhi, Inc., as Lender, dated as of November 14, 2016.
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10.2*
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Pledge and Security Agreement made by and between NLKW Holding, LLC in favor of Valhi, Inc., dated as of November 14, 2016.
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10.3*
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Back-to-Back Loan Agreement between the registrant, as Borrower, and NLKW Holding, LLC, as Lender, dated as of November 14, 2016.
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10.4* | Back-to-Back Pledge and Security Agreement made by and between the registrant in favor of Valhi, Inc., dated as of November 14, 2016. |
* |
Filed herewith.
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NL INDUSTRIES, INC.
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(Registrant)
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By:
/s/ Gregory M. Swalwell
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Date: November 15, 2016
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Gregory M. Swalwell, Executive Vice President and Chief Financial Officer
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Item No.
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Description
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10.1*
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Loan Agreement between NLKW Holding, LLC, as Borrower, and Valhi, Inc., as Lender, dated as of November 14, 2016.
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10.2*
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Pledge and Security Agreement made by and between NLKW Holding, LLC in favor of Valhi, Inc., dated as of November 14, 2016.
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10.3*
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Back-to-Back Loan Agreement between the registrant, as Borrower, and NLKW Holding, LLC, as Lender, dated as of November 14, 2016.
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10.4* | Back-to-Back Pledge and Security Agreement made by and between the registrant in favor of Valhi, Inc., dated as of November 14, 2016. |
* |
Filed herewith.
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(a) |
Borrower hereby unconditionally promises to pay to Lender in full in cash, to the extent not previously paid, the then-unpaid principal amount of all Loans on the Maturity Date.
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(b) |
Lender shall maintain an account or accounts evidencing indebtedness of Borrower to Lender resulting from each Loan, including the amounts of principal and interest payable and paid to Lender from time to time under this Agreement.
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(c) |
Borrower will promptly execute and deliver to Lender a Revolving Credit Note evidencing the Revolving Credit Loans, in the form of
Exhibit B
attached to this Agreement.
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(a) |
Each Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Applicable Interest Rate.
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(b) |
If (i) all or any amount of the principal of any Loan is not paid when due (without regard to any applicable grace periods), whether at the Maturity Date, by acceleration or otherwise, such overdue principal amount shall bear interest at a rate of interest per annum equal to the Applicable Interest Rate plus 2% and shall be payable on demand, and (ii) if all or any portion of any interest on any Loan or other amount payable hereunder shall not be paid when due, whether at the Maturity Date, by acceleration or otherwise, such overdue interest amount shall bear interest at a rate per annum equal to the Applicable Interest Rate plus 2%.
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(c) |
Interest on each Loan shall be due and payable in arrears on each Interest Payment Date applicable thereto and at such other times as may be specified herein.
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(a) |
Any and all payments by or on account of any obligation of Borrower hereunder or under any other Loan Document shall be made free and clear of and without deduction or withholding for any Taxes except as required by applicable law.
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(b) |
Without limiting the provisions above, Borrower shall timely pay any other Taxes imposed on it or its property, when due, to the relevant Governmental Authority in accordance with applicable law.
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(a) |
Lender shall have received this Agreement, duly executed and delivered by Borrower and the Security Agreement and other Loan Documents.
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(b) |
Lender shall have received audited consolidated financial statements of Sole Member for the two most recent fiscal years ended prior to the Closing Date and unaudited interim consolidated financial statements of Sole Member for each fiscal quarter ended after the date of the latest applicable audited financial statements delivered as to which such financial statements are available.
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(c) |
There shall have occurred no Material Adverse Effect since the date of the last audited full year financial statement of the Sole Member.
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(d) |
Lender shall have received the certificates representing the Collateral (if in certificated form) pledged to Lender pursuant to the Security Agreement, together with an undated stock power for each such certificate executed in blank by a duly authorized officer of Borrower and, in the case of uncertificated Collateral, Lender shall either have been registered by the issuer of such uncertificated Collateral as the registered owner, or the issuer of such uncertificated Collateral shall have agreed in writing to comply with all instructions from Lender with respect to the uncertificated Collateral without further consent from Borrower for so long as this Agreement is in effect.
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(e) |
Lender shall have received satisfactory evidence that each document required by the Loan Documents or any requirement of law or reasonably requested by the Lender to be filed, registered or recorded in order to create in favor of the Lender a perfected first priority Lien on the Collateral described therein, prior and superior in right to any other Person (other than with respect to Liens expressly permitted under this Agreement), including UCC-1 financing statements in such jurisdictions as may be required by the Security Agreement or by law or as may be requested by Lender, shall be in proper form for filing, registration or recording and shall have been properly filed, registered or recorded (or provided to Lender to be properly filed, registered or recorded, as applicable).
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(a) |
Each of the representations and warranties made by Borrower in or pursuant to the Loan Documents shall be true and correct in all material respects on and as of such date as if made on and as of such date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on such earlier date.
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(b) |
No Default or Event of Default shall have occurred and be continuing on such date or after giving effect to the Loans requested to be made on such date.
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(a) |
Borrower has the power and authority, and the legal right, to own or lease and operate its property, and to carry on its business as now conducted and as proposed to be conducted, and to execute, deliver and perform the Loan Documents to which it is a party and to obtain Loans hereunder.
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(b) |
This Agreement constitutes, and each other Loan Document when delivered hereunder will constitute, a legal, valid and binding obligation of Borrower thereto, enforceable against Borrower in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors' rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law).
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(a) |
To the knowledge of Borrower after due inquiry, the audited consolidated balance sheet of Sole Member as at December 31, 2015, and the related consolidated statement of income and of cash flows and equity for the fiscal year then ended present fairly the consolidated financial condition of Sole Member as at such date, and the consolidated results of their operations and their consolidated cash flows for the fiscal year then ended, in accordance with GAAP.
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(b) |
To the knowledge of Borrower after due inquiry, the unaudited consolidated balance sheet of Sole Member as at September 30, 2016, and the related unaudited consolidated statement of income and of cash flows for the interim period then ended present fairly the consolidated financial condition of Sole Member as at such date, and the consolidated results of operations and their consolidated cash flows for the interim period then ended, in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes).
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(a) |
As soon as available, but in any event not later than 90 days after the end of each fiscal year of Sole Member, a copy of the annual audit report of Sole Member for such year including a copy of the audited consolidated balance sheet of Sole Member as at the end of such year and the related audited consolidated statements of income and of cash flows and equity for the year then ended, together with an opinion as to such audit report of Sole Member's independent certified public accountants which does not contain a "going concern" or similar qualification or exception, or qualification arising out of the scope of the audit; and
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(b) |
As soon as available, but in any event not later than 60 days after the end of each of the first three quarterly periods of each fiscal year of Sole Member, the unaudited consolidated balance sheet of Sole Member as at the end of such quarter and the related unaudited consolidated statements of income and of cash flows and equity for such quarter and the portion of the fiscal year through the end of such quarter.
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(a) |
The occurrence of any Default or Event of Default;
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(b) |
Any (i) default or event of default under any contract to which Borrower is a party or (ii) litigation, investigation or proceeding that may exist between Borrower and any Governmental Authority, in each case that if not cured or if adversely determined, as the case may be, would reasonably be expected to have a Material Adverse Effect;
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(c) |
Any development or event that has had or would reasonably be expected to have a Material Adverse Effect.
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(a) |
(i) Preserve, renew and maintain in full force and effect its corporate or organizational existence and (ii) take all reasonable action to maintain all rights, privileges and franchises necessary or desirable in the normal conduct of its business, except to the extent that failure to comply therewith would not, in the aggregate, reasonably be expected to have a Material Adverse Effect.
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(b) |
Comply with all legal requirements except to the extent that failure to comply therewith would not, in the aggregate, reasonably be expected to have a Material Adverse Effect.
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(a) |
Maintain and preserve all of its property useful and necessary in its business in good working order and condition, ordinary wear and tear excepted.
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(b) |
Maintain insurance with respect to its property and business with financially sound and reputable insurance companies, in such amounts and covering such risks as are usually insured against by similar companies engaged in the same or a similar business;
provided, however
, that Borrower may self-insure to the same extent as other companies engaged in similar businesses and owning similar properties to Borrower.
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(a) |
With respect to any shares of Kronos Stock acquired by Borrower after the Closing Date that are intended to be subject to a Lien created by the Security Agreement or any Loan Document:
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(i) |
execute and deliver to Lender such supplements or amendments to the Security Agreement or such other documents as Lender deems necessary or advisable to grant to Lender a security interest in such property; and
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(ii) |
take all actions necessary or advisable to grant to Lender a perfected first priority security interest in such property, including the delivery to the Lender of any related physical stock certificates endorsed in blank or otherwise at the direction of the Lender, and the filing of UCC-1 financing statements in such jurisdictions as may be required by the Security Agreement or by law or as may be requested by Lender.
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(a) |
Correct any material defect or error that may be discovered in any Loan Document or in the execution, acknowledgement, filing or recordation thereof; and
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(b) |
Do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any and all such further acts, deeds, conveyances, pledge agreements, mortgages, deeds of trust, trust deeds, assignments, financing statements and continuations thereof, termination statements, notices of assignments, transfers, certificates, assurances and other instruments as Lender, may require from time to time in order to perfect and maintain the validity, effectiveness and priority of the Liens intended to be created under the Security Agreement and the other Loan Documents.
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(a) |
Debt existing or arising under this Agreement and any other Loan Document; and
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(b) |
Debt existing on the Closing Date and any refinancings, modifications, renewals and extensions of any such Debt.
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(a) |
Liens created pursuant to or arising under any Loan Document;
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(b) |
Liens imposed by law for taxes, assessments or governmental charges not yet due or which are being contested in good faith and by appropriate proceedings diligently conducted if, unless the amount is not material with respect to it or its financial condition, adequate reserves with respect thereto are maintained in accordance with GAAP on the books of the applicable Person;
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(c) |
Carriers', warehousemen's, mechanics', materialmen's, repairmen's and other similar Liens imposed by law, arising in the ordinary course of business and securing obligations that are not overdue by more than 30 days or that are being contested in good faith and by appropriate proceedings diligently conducted;
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(d) |
Pledges and deposits and other Liens (i) made in the ordinary course of business in compliance with workers' compensation, unemployment insurance and other social security laws or regulations, and (ii) securing liability for reimbursement or indemnification obligations of (including obligations in respect of letters of credit or bank guarantees for the benefit of) insurance carriers providing property, casualty or liability insurance to Borrower;
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(e) |
Liens (including deposits) to secure the performance of bids, tenders, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of like nature, in each case in the ordinary course of business;
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(f) |
Easements, zoning restrictions, rights-of-way, minor defects or irregularities in title and similar encumbrances on real property imposed by law or arising in the ordinary course of business which, in the aggregate, are not material in amount and which do not materially detract from the value of the affected property or interfere materially with the ordinary conduct of business of Borrower;
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(g) |
Liens in existence as of the Closing Date and any renewals, modifications, replacements and extensions of such Liens; and
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(h) |
Any Lien existing on any property or asset prior to the acquisition thereof by Borrower;
provided that
such Lien is not created in contemplation of, or in connection with, such acquisition by Borrower.
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(a) |
Merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or liquidate or dissolve.
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(b) |
Engage in any business other than businesses of the type conducted by Borrower on the Closing Date and businesses reasonably related thereto.
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(a) |
Borrower fails to pay either (y) any principal of any Loan when due, whether at stated maturity, by acceleration, by notice of voluntary prepayment, by mandatory prepayment or otherwise; or (z) any interest on any Loan or any fee or other amount payable hereunder or under any other Loan Document when due, and in each case such failure remains unremedied for a period of 15 Business Days
;
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(b) |
Borrower fails to perform or observe, or otherwise breaches any other covenant in (i) any of the Loan Documents, including as set forth in Section 7.06, or (ii) the LLC Agreement, including but not limited to as set forth in Sections 7(c) and 9(f) thereto, and such failure or breach continues unremedied for a period of 15 Business Days after written notice to Borrower from Lender;
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(c) |
any representation, warranty, certification or other statement of fact made or deemed made by or on behalf of Borrower herein, in any other Loan Document, in the LLC Agreement of Borrower or any amendment or modification hereof or thereof or waiver hereunder or thereunder proves to have been false or misleading in any material respect on or as of the date made or deemed made;
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(d) |
the Security Agreement ceases for any reason to be valid, binding and in full force and effect or any Lien created by the Security Agreement ceases to be enforceable and of the same effect and priority purported to be created thereby;
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(e) |
any Change of Control occurs;
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(f) |
there occurs an "Event of Default" under the Back-to-Back Loan Agreement or Back-to-Back Security Agreement;
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(g) |
there occurs in the judgment of Lender a Material Adverse Effect;
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(h) |
an Insolvency Event occurs with respect to Borrower or the Sole Member;
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(i) |
either Borrower or the Sole Member admits in writing that it is not Solvent or otherwise not able or willing to perform one or more of its obligations under the Loan Documents;
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(j) |
a final judgment or judgments for the payment of money with respect to Borrower that is not insured against is entered against Borrower in favor of one or more Governmental Authorities, such Governmental Authorities undertake any action to execute on such final judgment or judgments, and the same is not satisfied, discharged (or provision has not been made for such discharge) or bonded, or a stay of execution thereof has not been procured, within thirty (30) days from the date of entry thereof;
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(k) |
a Governmental Authority takes any action to (i) condemn, seize or appropriate, or assume custody or control of, all or any substantial part of the property of Borrower, (ii) displace the management of Borrower or curtail its authority in the conduct of the business of Borrower, (iii) terminate the activities of Borrower as contemplated by the Loan Documents and LLC Agreement, (iv) consolidate the Borrower with the Sole Member or any other company, or (v) remove, limit or restrict the Borrower as a borrower of the Loan, and in each case such action is not discontinued or stayed within thirty (30) days;
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(l) |
any provision of the Loan Documents, any right or remedy of Lender or obligation, covenant, agreement or duty of Borrower, or any Lien, security interest or control granted under or in connection with the Loan Documents or Collateral terminates, is declared null and void, ceases to be valid and effective, ceases to be the legal, valid, binding and enforceable obligation of Borrower, or the validity, effectiveness, binding nature or enforceability thereof is contested, challenged, denied or repudiated by Borrower directly, indirectly, in whole or in part;
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(m) |
Lender ceases for any reason to have a valid and perfected first priority security interest in any Collateral, other than as a result of Lender's actions; or
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(n) |
Borrower engages in any conduct or action where Lender's prior consent is required by any Loan Document and Borrower fails to obtain such consent.
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(a) |
if such Event of Default is one specified in subsection (d), (g), (h), (i) (j), (k) or (l) above with respect to Borrower, the Revolving Credit Commitment shall automatically and immediately terminate and the Loans (with accrued interest thereon) and all other amounts owing under this Agreement and the other Loan Documents shall become immediately due and payable;
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(b) |
the Lender may take any one or more of the following actions:
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(i)
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Termination of Revolving Credit Commitments
. Lender may, by notice to Borrower, declare the Revolving Credit Commitments to be terminated forthwith, whereupon the Revolving Credit Commitments shall immediately terminate;
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(ii)
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Amounts Due and Owing
. Lender may, by notice to Borrower, declare the Loans (with accrued interest thereon) and all other amounts owing under this Agreement and the other Loan Documents to be due and payable forthwith, whereupon the same shall immediately become due and payable;
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(iii)
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Rights under Security Agreement
. Lender may exercise all rights and remedies available to it under the Security Agreement, any other Loan Document, any other agreement among Borrower and in favor of Lender (including any available rights of offset) and any rights and remedies provided by any other applicable law, rule or regulation;
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(iv)
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Completion, Delivery of Documents
. Lender may obtain physical possession of all Records of Borrower. Borrower shall deliver to Lender such assignments and other documents with respect to the Collateral as Lender shall request.
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(v)
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Collateral Call Option
. Upon the occurrence of an Event of Default specified in section 8.01(h) above, Lender may, by notice to the Borrower, immediately purchase and retain all, but not less than all, of the Collateral at a purchase price (the "Collateral Purchase Price") equal to the Market Value thereof on the date of purchase, less the outstanding amounts then due and owing to the Lender under this Agreement as of such date of purchase (the "Outstanding Loan Amount"), for which the Lender shall give the Borrower credit. At Lender's option, the Collateral Purchase Price may be paid by the Lender in cash, or in part in the form of a Collateral Promissory Note with the remainder in cash, in either case in the aggregate amount of the Collateral Purchase Price. Until such time as Lender exercises such purchase remedy, Lender may hold the Collateral for its own account and retain all income with respect thereto and apply such income in accordance with the provisions of this Agreement.
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(vi)
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Equitable Remedies
. Lender shall be entitled to seek an injunction, an order of specific performance or other equitable relief to compel Borrower to fulfill any of its obligations as set forth in the Loan Documents or the LLC Agreement, if Borrower fails or refuses to perform its obligations as set forth herein or therein.
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(vii)
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Power of Attorney
. Borrower hereby appoints Lender as attorney in fact of Borrower for purposes of carrying out the Loan Documents solely with respect to the Collateral, including executing, endorsing and recording any instruments or documents, and taking any other actions that Lender deems necessary or advisable to accomplish such purposes, which appointment is coupled with an interest and is irrevocable.
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(c) |
all rights and remedies of Lender are cumulative and may be exercised singly or concurrently. The failure to exercise any right or remedy will not be a waiver of such right or remedy. Such rights and remedies may be enforced without prior judicial process or hearing. Borrower agrees that nonjudicial remedies are consistent with the usages of the trade, are responsive to commercial necessity and are the result of a bargain at arm's length. Borrower hereby expressly waives any defenses Borrower might have to require Lender to enforce its rights by judicial process or otherwise arising from the use of nonjudicial process, disposition of any or all of the Collateral, or any other election of remedies.
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(i) |
If to Borrower at Three Lincoln Centre, 5430 LBJ Freeway, Suite 1700, Dallas, Texas 75240, Attention General Counsel.
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(ii) |
If to Lender at Three Lincoln Centre, 5430 LBJ Freeway, Suite 1700, Dallas, Texas 75240, Attention General Counsel.
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(b) |
Any notice or demand required by any Loan Document shall be deemed to have been given and received on the earlier of (i) when the notice or demand is actually received by the recipient or (ii) 72 hours after the notice is deposited in the United States mail, certified or registered, with postage prepaid, and addressed to the recipient.
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(a) |
No failure to exercise and no delay in exercising, on the part of Lender, any right, remedy, power or privilege hereunder or under the other Loan Documents shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law. No waiver of any provision of any Loan Document or consent to any departure by Borrower therefrom shall in any event be effective unless the same shall comply with paragraph (b) of this Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan shall not be construed as a waiver of any Default, regardless of whether Lender may have had notice or knowledge of such Default at the time.
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(b) |
Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by Borrower and Lender.
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(a) |
Borrower agrees to indemnify and hold harmless Lender and each of its Related Parties (each, an
"Indemnified Party"
) from and against, any and all claims, damages, losses, liabilities and related expenses (including the reasonable fees, charges and expenses of any counsel for any Indemnified Party), incurred by any Indemnified Party or any of its Related Parties arising out of, in connection with, or by reason of:
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(i) |
the execution or delivery of any Loan Document or any agreement or instrument contemplated in any Loan Document, the performance by the parties thereto of their respective obligations under any Loan Document or the consummation of the transactions contemplated by the Loan Documents;
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(ii) |
any Loan or the actual or proposed use of the proceeds therefrom; or
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(iii) |
any actual or prospective claim, investigation, litigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by Borrower, and regardless of whether any Indemnified Party is a party thereto;
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(b) |
Borrower agrees, to the fullest extent permitted by applicable law, not to assert, and hereby waives, any claim against any Indemnified Party, on any theory of liability, for special, indirect, consequential or punitive damages (including, without limitation, any loss of profits or anticipated savings), as opposed to actual or direct damages, resulting from this Agreement or any other Loan Document or arising out of such Indemnified Party's activities in connection herewith or therewith (whether before or after the Closing Date).
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(c) |
All amounts due hereunder shall be payable promptly after demand is made for payment by Lender.
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(d) |
Borrower agrees that it will not settle, compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceeding in respect of which indemnification or contribution could be sought hereunder (whether or not any Indemnified Party is an actual or potential party to such claim, action or proceeding) without the prior consent of the applicable Indemnified Party, unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such claim, action or proceeding.
|
(a) |
Borrower hereby unconditionally promises to pay to Lender in full in cash, to the extent not previously paid, the then-unpaid principal amount of all Back-to-Back Revolving Credit Loans on the Maturity Date.
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(b) |
Lender shall maintain an account or accounts evidencing indebtedness of Borrower to Lender resulting from each Back-to-Back Revolving Credit Loan, including the amounts of principal and interest payable and paid to Lender from time to time under this Agreement.
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(c) |
Borrower will promptly execute and deliver to Lender a Back-to-Back Revolving Credit Note evidencing the Back-to-Back Revolving Credit Loans, in the form of
Exhibit B
attached to this Agreement.
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(a) |
If for any reason the aggregate principal amount of Back-to-Back Revolving Credit Loans at any time outstanding exceeds the Back-to-Back Revolving Credit Commitment then in effect, Borrower shall immediately repay Back-to-Back Revolving Credit Loans in an amount equal to such excess.
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(b) |
If for any reason the Loans shall become immediately become due and payable under the Loan Agreement, either pursuant to Section 8.02 of the Loan Agreement or otherwise, then the Back-to-Back Revolving Credit Loans (with accrued interest thereon) and all other amounts owing under this Agreement and the Back-to-Back Revolving Credit Note shall become immediately due and payable.
|
(a) |
Each Back-to-Back Revolving Credit Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Applicable Interest Rate.
|
(b) |
If (i) all or any amount of the principal of any Back-to-Back Revolving Credit Loan is not paid when due (without regard to any applicable grace periods), whether at the Maturity Date, by acceleration or otherwise, such overdue principal amount shall bear interest at a rate of interest per annum equal to the Applicable Interest Rate plus 2% and shall be payable on demand, and (ii) if all or any portion of any interest on any Back-to-Back Revolving Credit Loan or other amount payable hereunder shall not be paid when due, whether at the Maturity Date, by acceleration or otherwise, such overdue interest amount shall bear interest at a rate per annum equal to the Applicable Interest Rate plus 2%.
|
(c) |
Interest on each Back-to-Back Revolving Credit Loan shall be due and payable in arrears on each Interest Payment Date applicable thereto and at such other times as may be specified herein.
|
(a) |
Any and all payments by or on account of any obligation of Borrower hereunder or under any other Back-to-Back Loan Document shall be made free and clear of and without deduction or withholding for any Taxes except as required by applicable law.
|
(b) |
Without limiting the provisions above, Borrower shall timely pay any other Taxes imposed on it or its property, when due, to the relevant Governmental Authority in accordance with applicable law.
|
(a) |
Lender shall have received this Agreement and the Back-to-Back Revolving Credit Note, and Valhi shall have received the Back-to-Back Security Agreement, in each case duly executed and delivered by Borrower.
|
(b) |
Lender shall have received audited consolidated financial statements of Borrower for the two most recent fiscal years ended prior to the Closing Date and unaudited interim consolidated financial statements of Borrower for each fiscal quarter ended after the date of the latest applicable audited financial statements delivered as to which such financial statements are available.
|
(c) |
There shall have occurred no Material Adverse Effect since the date of the last audited full year financial statement of the Borrower.
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(d) |
Valhi shall have received the certificates representing the Collateral (if in certificated form) pledged to Valhi pursuant to the Back-to-Back Security Agreement, together with an undated stock power for each such certificate executed in blank by a duly authorized officer of Borrower and, in the case of uncertificated Collateral, Valhi shall either have been registered by the issuer of such uncertificated Collateral as the registered owner, or the issuer of such uncertificated Collateral shall have agreed in writing to comply with all instructions from Valhi with respect to the uncertificated Collateral without further consent from Borrower for so long as this Agreement is in effect.
|
(e) |
Valhi shall have received satisfactory evidence that each document required by the Back-to-Back Security Agreement or any requirement of law or reasonably requested by the Valhi to be filed, registered or recorded in order to create in favor of the Valhi a perfected first priority Lien on the Collateral described therein, prior and superior in right to any other Person (other than with respect to Liens expressly permitted under this Agreement), including UCC-1 financing statements in such jurisdictions as may be required by the Back-to-Back Security Agreement or by law or as may be requested by Valhi, shall be in proper form for filing, registration or recording and shall have been properly filed, registered or recorded (or provided to Valhi to be properly filed, registered or recorded, as applicable).
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(a) |
Each of the representations and warranties made by Borrower in or pursuant to the Back-to-Back Loan Documents shall be true and correct in all material respects on and as of such date as if made on and as of such date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on such earlier date.
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(b) |
No Default or Event of Default shall have occurred and be continuing on such date or after giving effect to the Back-to-Back Revolving Credit Loans requested to be made on such date.
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(a) |
Borrower has the power and authority, and the legal right, to own or lease and operate its property, and to carry on its business as now conducted and as proposed to be conducted, and to execute, deliver and perform the Back-to-Back Loan Documents to which it is a party and to obtain Back-to-Back Revolving Credit Loans hereunder.
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(b) |
This Agreement constitutes, and each other Back-to-Back Loan Document when delivered hereunder will constitute, a legal, valid and binding obligation of Borrower thereto, enforceable against Borrower in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors' rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law).
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(a) |
The audited consolidated balance sheet of Borrower as at December 31, 2015, and the related consolidated statement of income and of cash flows and equity for the fiscal year then ended present fairly the consolidated financial condition of Borrower as at such date, and the consolidated results of their operations and their consolidated cash flows for the fiscal year then ended, in accordance with GAAP.
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(b) |
The unaudited consolidated balance sheet of Borrower as at September 30, 2016, and the related unaudited consolidated statement of income and of cash flows for the interim period then ended present fairly the consolidated financial condition of Borrower as at such date, and the consolidated results of operations and their consolidated cash flows for the interim period then ended, in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes).
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(a) |
As soon as available, but in any event not later than 90 days after the end of each fiscal year of Borrower, a copy of the annual audit report of Borrower for such year including a copy of the audited consolidated balance sheet of Borrower as at the end of such year and the related audited consolidated statements of income and of cash flows and equity for the year then ended, together with an opinion as to such audit report of Borrower's independent certified public accountants which does not contain a "going concern" or similar qualification or exception, or qualification arising out of the scope of the audit; and
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(b) |
As soon as available, but in any event not later than 60 days after the end of each of the first three quarterly periods of each fiscal year of Borrower, the unaudited consolidated balance sheet of Borrower as at the end of such quarter and the related unaudited consolidated statements of income and of cash flows and equity for such quarter and the portion of the fiscal year through the end of such quarter.
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(a) |
The occurrence of any Default or Event of Default;
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(b) |
Any (i) default or event of default under any contract to which Borrower is a party or (ii) litigation, investigation or proceeding that may exist between Borrower and any Governmental Authority, in each case that if not cured or if adversely determined, as the case may be, would reasonably be expected to have a Material Adverse Effect;
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(c) |
Any development or event that has had or would reasonably be expected to have a Material Adverse Effect.
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(a) |
(i) Preserve, renew and maintain in full force and effect its corporate or organizational existence and (ii) take all reasonable action to maintain all rights, privileges and franchises necessary or desirable in the normal conduct of its business, except to the extent that failure to comply therewith would not, in the aggregate, reasonably be expected to have a Material Adverse Effect.
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(b) |
Comply with all legal requirements except to the extent that failure to comply therewith would not, in the aggregate, reasonably be expected to have a Material Adverse Effect.
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(a) |
Maintain and preserve all of its property useful and necessary in its business in good working order and condition, ordinary wear and tear excepted.
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(b) |
Maintain insurance with respect to its property and business with financially sound and reputable insurance companies, in such amounts and covering such risks as are usually insured against by similar companies engaged in the same or a similar business;
provided, however
, that Borrower may self-insure to the same extent as other companies engaged in similar businesses and owning similar properties to Borrower.
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(a) |
Correct any material defect or error that may be discovered in any Back-to-Back Loan Document or in the execution, acknowledgement, filing or recordation thereof; and
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(b) |
Do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any and all such further acts, deeds, conveyances, pledge agreements, mortgages, deeds of trust, trust deeds, assignments, financing statements and continuations thereof, termination statements, notices of assignments, transfers, certificates, assurances and other instruments as Lender, may require from time to time in order to perfect and maintain the validity, effectiveness and priority of the Liens intended to be created under the Back-to-Back Security Agreement.
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(a) |
Borrower fails to pay either (y) any principal of any Back-to-Back Revolving Credit Loan when due, whether at stated maturity, by acceleration, by notice of voluntary prepayment, by mandatory prepayment or otherwise; or (z) any interest on any Back-to-Back Revolving Credit Loan or any fee or other amount payable hereunder or under any other Back-to-Back Loan Document when due, and in each case such failure remains unremedied for a period of 15 Business Days
;
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(b) |
Borrower fails to perform or observe, or otherwise breaches any other covenant in any of the Back-to-Back Loan Documents, and such failure or breach continues unremedied for a period of 15 Business Days after written notice to Borrower from Lender;
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(c) |
any representation, warranty, certification or other statement of fact made or deemed made by or on behalf of Borrower herein, in any other Back-to-Back Loan Document or any amendment or modification hereof or thereof or waiver hereunder or thereunder proves to have been false or misleading in any material respect on or as of the date made or deemed made;
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(d) |
the Back-to-Back Security Agreement ceases for any reason to be valid, binding and in full force and effect or any Lien created by the Back-to-Back Security Agreement ceases to be enforceable and of the same effect and priority purported to be created thereby;
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(e) |
any Change of Control occurs;
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(f) |
[Reserved];
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(g) |
there occurs in the judgment of Lender a Material Adverse Effect;
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(h) |
an Insolvency Event occurs with respect to Borrower;
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(i) |
Borrower admits in writing that it is not Solvent or otherwise not able or willing to perform one or more of its obligations under the Back-to-Back Loan Documents;
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(j) |
a final judgment or judgments for the payment of money with respect to Borrower that is not insured against is entered against Borrower in favor of one or more Governmental Authorities, such Governmental Authorities undertake any action to execute on such final judgment or judgments, and the same is not satisfied, discharged (or provision has not been made for such discharge) or bonded, or a stay of execution thereof has not been procured, within thirty (30) days from the date of entry thereof;
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(k) |
a Governmental Authority takes any action to (i) condemn, seize or appropriate, or assume custody or control of, all or any substantial part of the property of Borrower, (ii) displace the management of Borrower or curtail its authority in the conduct of the business of Borrower, (iii) terminate the activities of Borrower as contemplated by the Back-to-Back Loan Documents, (iv) consolidate the Borrower or any other company, or (v) remove, limit or restrict the Borrower as a borrower of the Back-to-Back Revolving Credit Loan, and in each case such action is not discontinued or stayed within thirty (30) days;
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(l) |
any provision of the Back-to-Back Loan Documents, any right or remedy of Lender or obligation, covenant, agreement or duty of Borrower, or any Lien, security interest or control granted under or in connection with the Back-to-Back Loan Documents or Collateral terminates, is declared null and void, ceases to be valid and effective, ceases to be the legal, valid, binding and enforceable obligation of Borrower, or the validity, effectiveness, binding nature or enforceability thereof is contested, challenged, denied or repudiated by Borrower directly, indirectly, in whole or in part;
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(m) |
Valhi ceases for any reason to have a valid and perfected first priority security interest in any Collateral, other than as a result of Valhi's actions; or
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(n) |
Borrower engages in any conduct or action where Lender's prior consent is required by any Loan Document and Borrower fails to obtain such consent.
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(a) |
if such Event of Default is one specified in subsection (d), (g), (h), (i) (j), (k) or (l) above with respect to Borrower, the Back-to-Back Revolving Credit Commitment shall automatically and immediately terminate and the Back-to-Back Revolving Credit Loans (with accrued interest thereon) and all other amounts owing under this Agreement and the other Back-to-Back Loan Documents shall become immediately due and payable;
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(b) |
the Lender may take any one or more of the following actions:
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(i)
|
Termination of Back-to-Back Revolving Credit Commitments
. Lender may, by notice to Borrower, declare the Back-to-Back Revolving Credit Commitments to be terminated forthwith, whereupon the Back-to-Back Revolving Credit Commitments shall immediately terminate;
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(ii)
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Amounts Due and Owing
. Lender may, by notice to Borrower, declare the Back-to-Back Revolving Credit Loans (with accrued interest thereon) and all other amounts owing under this Agreement and the other Back-to-Back Loan Documents to be due and payable forthwith, whereupon the same shall immediately become due and payable;
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(iii)
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[Reserved];
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(iv)
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Completion, Delivery of Documents
. Lender may obtain physical possession of all Records of Borrower. Borrower shall deliver to Lender such assignments and other documents with respect to the Collateral as Lender shall request.
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(v)
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[Reserved]
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(vi)
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Equitable Remedies
. Lender shall be entitled to seek an injunction, an order of specific performance or other equitable relief to compel Borrower to fulfill any of its obligations as set forth in the Back-to-Back Loan Documents, if Borrower fails or refuses to perform its obligations as set forth herein or therein.
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(c) |
all rights and remedies of Lender are cumulative and may be exercised singly or concurrently. The failure to exercise any right or remedy will not be a waiver of such right or remedy. Such rights and remedies may be enforced without prior judicial process or hearing. Borrower agrees that nonjudicial remedies are consistent with the usages of the trade, are responsive to commercial necessity and are the result of a bargain at arm's length. Borrower hereby expressly waives any defenses Borrower might have to require Lender to enforce its rights by judicial process or otherwise arising from the use of nonjudicial process, disposition of any or all of the Collateral, or any other election of remedies.
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(i) |
If to Borrower at Three Lincoln Centre, 5430 LBJ Freeway, Suite 1700, Dallas, Texas 75240, Attention General Counsel.
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(ii) |
If to Lender at Three Lincoln Centre, 5430 LBJ Freeway, Suite 1700, Dallas, Texas 75240, Attention General Counsel.
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(b) |
Any notice or demand required by any Back-to-Back Loan Document shall be deemed to have been given and received on the earlier of (i) when the notice or demand is actually received by the recipient or (ii) 72 hours after the notice is deposited in the United States mail, certified or registered, with postage prepaid, and addressed to the recipient.
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(a) |
No failure to exercise and no delay in exercising, on the part of Lender, any right, remedy, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law. No waiver of any provision of any Back-to-Back Loan Document or consent to any departure by Borrower therefrom shall in any event be effective unless the same shall comply with paragraph (b) of this Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Back-to-Back Revolving Credit Loan shall not be construed as a waiver of any Default, regardless of whether Lender may have had notice or knowledge of such Default at the time.
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(b) |
Neither this Agreement nor any other Back-to-Back Loan Document nor any provision hereof or thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by Borrower and Lender.
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(a) |
Borrower agrees to indemnify and hold harmless Lender and each of its Related Parties (each, an
"Indemnified Party"
) from and against, any and all claims, damages, losses, liabilities and related expenses (including the reasonable fees, charges and expenses of any counsel for any Indemnified Party), incurred by any Indemnified Party or any of its Related Parties arising out of, in connection with, or by reason of:
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(i) |
the execution or delivery of any Back-to-Back Loan Document or any agreement or instrument contemplated in any Back-to-Back Loan Document, the performance by the parties thereto of their respective obligations under any Back-to-Back Loan Document or the consummation of the transactions contemplated by the Back-to-Back Loan Documents;
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(ii) |
any Back-to-Back Revolving Credit Loan or the actual or proposed use of the proceeds therefrom
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(iii) |
any actual or alleged presence or release of Hazardous Materials on or from any property currently or formerly owned or operated by Borrower or any of its Subsidiaries, or any Environmental Liability related to Borrower or any of its Subsidiaries in any way; or
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(iv) |
any actual or prospective claim, investigation, litigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by Borrower, and regardless of whether any Indemnified Party is a party thereto;
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(b) |
Borrower agrees, to the fullest extent permitted by applicable law, not to assert, and hereby waives, any claim against any Indemnified Party, on any theory of liability, for special, indirect, consequential or punitive damages (including, without limitation, any loss of profits or anticipated savings), as opposed to actual or direct damages, resulting from this Agreement or any other Back-to-Back Loan Document or arising out of such Indemnified Party's activities in connection herewith or therewith (whether before or after the Closing Date).
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(c) |
All amounts due hereunder shall be payable promptly after demand is made for payment by Lender.
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(d) |
Borrower agrees that it will not settle, compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceeding in respect of which indemnification or contribution could be sought hereunder (whether or not any Indemnified Party is an actual or potential party to such claim, action or proceeding) without the prior consent of the applicable Indemnified Party, unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such claim, action or proceeding.
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