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EX-23.1 - NL INDUSTRIES, INC. 10K09 EXHIBIT 23.1 - NL INDUSTRIES INC | nl10k08exhibit23_1.htm |
EX-31.2 - NL INDUSTRIES, INC. 10K09 EXHIBIT 31.2 - NL INDUSTRIES INC | nl10k08exhibit31_2.htm |
EX-23.2 - NL INDUSTRIES, INC. 10K09 EXHIBIT 23.2 - NL INDUSTRIES INC | nl10k08exhibit23_2.htm |
EX-31.1 - NL INDUSTRIES, INC. 10K09 EXHIBIT 31.1 - NL INDUSTRIES INC | nl10k08exhibit31_1.htm |
EX-32.1 - NL INDUSTRIES, INC. 10K09 EXHIBIT 32.1 - NL INDUSTRIES INC | nl10k08exhibit32_1.htm |
EX-21.1 - NL INDUSTRIES, INC. 10K09 EXHIBIT 21.1 - NL INDUSTRIES INC | nl10k08exhibit21_1.htm |
EX-10.38 - NL INDUSTRIES, INC. 10K09 EXHIBIT 10.38 - NL INDUSTRIES INC | nl10k08exhibit10_38.htm |
EX-10.39 - NL INDUSTRIES, INC. 10K09 EXHIBIT 10.39 - NL INDUSTRIES INC | nl10k08exhibit10_39.htm |
EX-10.35 - NL INDUSTRIES, INC. 10K09 EXHIBIT 10.35 - NL INDUSTRIES INC | nl10k08exhibit10_35.htm |
10-K - NL INDUSTRIES, INC. 10K2009 - NL INDUSTRIES INC | nl10k2009.htm |
EXHIBIT
A
LEGAL
DESCRIPTION
Includes meets and bounds legal description of
property parcels C performed by CME Associates dated December 12, 2007.
Exhibit
"B"
Compliance
Certificate
To:The
Lender who is party to the Multi-Party Agreement.
This
Compliance Certificate is furnished pursuant to the Multi-Party Agreement dated
as of , 2008 (as amended, modified, renewed or extended from time to time, the
"Agreement") among The Prudential Insurance Company of America ("Prudential"),
acting solely on behalf of and for the benefit of PRISA II ("PRISA II"),
SAYREVILLE PRISA II, LLC, a Delaware limited liability company, NL INDUSTRIES,
INC., NL ENVIRONMENTAL MANAGEMENT SERVICES, INC., SAYREVILLE SEAPORT ASSOCIATES,
L.P., a Delaware limited partnership ("Borrower"); SAYREVILLE SEAPORT ASSOCIATES
ACQUISITION COMPANY, LLC, a Delaware limited liability company and general
partner of the Borrower (the "General Partner"); OPG PARTICIPATION, LLC, a
Pennsylvania limited liability company and limited partner of the Borrower
("OPG"); and J. BRIAN ONEILL. Unless otherwise defined herein, capitalized terms
used in this Compliance Certificate have the meanings ascribed thereto in the
Agreement.
THE
UNDERSIGNED HEREBY CERTIFIES THAT:
1. The
individual signing this certificate is a senior executive of the PRISA
II
account.
2. Such
individual has reviewed the terms of the Agreement and has made, or
has
caused to
be made under his or her supervision, a detailed review of the transactions and
conditions of PRISA II and its Consolidated Entities during the accounting
period covered by the attached financial statements.
3. The
examinations described in paragraph 2 did not disclose, and Prudential has
no
knowledge
of, the existence of any condition or event which constitutes an event which
would permit Lender to require payment to it of the Loan Pay-off Capital
Contribution pursuant to Section 2(a) of the Agreement during or at the end of
the accounting period covered by the attached financial statements or as of the
date of this Certificate.
CONTINUED
ON FOLLOWING PAGE
4.Schedule
I attached hereto sets forth financial data and computations
evidencing
PRISA
II's compliance with certain covenants of the Agreement, all of which data and
computations are true, complete and correct.
The
foregoing certifications, together with the computations set forth in Schedule I
hereto and the financial statements delivered with this Certificate in support
hereof, are made and delivered this day of , 200_.
THE
PRUDENTIAL INSURANCE COMPANY OF AMERICA, an insurance company organized under
the laws of the State of New Jersey, acting solely on behalf of and for the
benefit of, and with its liability limited to the assets of, its insurance
company separate account, PRISA II (except as expressly provided in Section 18
of the Agreement)
By:
Name:
Title:
Schedule I To Compliance
Certificate
19.1 Net
Asset Value. PRISA II will at all times maintain a minimum value of Net Assets
of $1,500,000,000.
Show
computation:
6.2Coverage Ratio. PRISA II and its
Consolidated Entities on a consolidated basis,
shall
not, as of any date, permit Total Outstanding Indebtedness to exceed forty
percent (40%) of Adjusted Total Assets.
Show
computation:
6.3Fixed Charge Coverage. PRISA II
and its Consolidated Entities on a consolidated
basis,
shall not, as of any date, permit the ratio of Net Investment Income plus
Interest Expense plus all ground lease rental expense included in Fixed Charges
for the most recent four prior fiscal quarters to Fixed Charges for such period
to be less than 2.5 to 1.
Show
computation:
Exhibit
"C"
Definitions
"Adjusted
Total Assets" means Total Assets, plus the Consolidated Group Pro Rata
Liquidation Share of all Indebtedness of Non-Consolidated Entities.
"Agreement
Accounting Principles" means generally accepted accounting principles in
the United States of America as in effect from time to time, applied in a manner
consistent with that used in preparing the PRISA II's prior financial
statements.
"Assets
Under Development" means, as of any date of determination, all Projects
and expansion areas of existing Projects owned by the Consolidated Group for
which a certificate of occupancy has not been issued, upon which income
producing improvements are under construction, and upon which construction is
progressing with diligence in accordance with a reasonable, industry standard
construction schedule.
"Capitalized
Lease" of a Person means any lease of Projects imposing obligations on
such Person, as lessee thereunder, which are required in accordance with
Agreement Accounting Principles to be capitalized on a balance sheet of such
Person.
"Capitalized
Lease Obligations" of a Person means the amount of the obligations of
such Person under Capitalized Leases which would be shown as a liability on a
balance sheet of such Person prepared in accordance with Agreement Accounting
Principles.
"Consolidated
Entity" means an entity which is consolidated with PRISA II in accordance
with Agreement Accounting Principles.
"Consolidated
Group" means the PRISA II and all Consolidated Entities.
"Consolidated
Group Pro Rata Income Share" means, at any time, with respect to any
Non-Consolidated Entity, the percentage of a distribution of income of such
Non-Consolidated Entity that would be received by the Consolidated Group in the
aggregate at such time, upon such distribution of income of such
Non-Consolidated Entity, taking into account preferred and priority
returns.
"Consolidated
Group Pro Rata Liquidation Share" means, with respect to any
Non-Consolidated Entity, the percentage of the total market value of such
Non-Consolidated Entity that would be received by the Consolidated Group in the
aggregate, upon liquidation of such Non-Consolidated Entity after repayment in
full of all Indebtedness of such Non-Consolidated Entity.
"Contract
Holder" means a person which has made an investment in PRISA II pursuant
to a separate account agreement. "Debt
Service" means, for any period, Interest Expense for such period, plus
scheduled principal
amortization payments (excluding balloon payments) on the Total
Outstanding
Indebtedness
during such period, provided that if Total Outstanding Indebtedness includes
less than 100% of the amount of any item of Indebtedness, only the corresponding
percentage of the scheduled principal amortization payments on such Indebtedness
will be included in Debt Service.
"Fixed Charges" means, for any period, Debt Service for such period,
plus all ground lease rental expense of the Consolidated Group accruing during
such period, plus the Consolidated Group Pro Rata Income Share of all ground
lease rental expense for Non-Consolidated Entities accruing during such
period.
"Guarantee Obligation" means, as to
any Person (the "guaranteeing person"), any obligation (determined without
duplication) of (a) the guaranteeing person or (b) another Person (including,
without limitation, any bank under any letter of credit) to induce the creation
of which the guaranteeing person has issued a reimbursement, counter-indemnity
or similar obligation, in either case guaranteeing or in effect guaranteeing any
Indebtedness, leases, dividends or other obligations (the "primary obligations")
of any other third Person (the "primary obligor") in any manner, whether
directly or indirectly, including, without limitation, any obligation of the
guaranteeing person, whether or not contingent, (i) to purchase any such primary
obligation or any property constituting direct or indirect security therefor,
(ii) to advance or supply funds (1) for the purchase or payment of any such
primary obligation or (2) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (iii) to purchase property, securities or services primarily
for the purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary obligation (but
excluding future commitments to purchase assets, but not indebtedness or other
liabilities, for the fair market value of such assets as projected by such
Person in good faith as of the date of the applicable commitment to purchase) or
(iv) otherwise to assure or hold harmless the owner of any such primary
obligation against loss in respect thereof; provided, however, that the term
Guarantee Obligation shall not include (A) endorsements of instruments for
deposit or guarantees of collection in the ordinary course of business or (B)
any obligations that do not exceed $100,000 to the extent the aggregate of such
obligations does not exceed $250,000. The amount of any Guarantee Obligation of
any guaranteeing person shall be deemed to be the maximum stated amount of the
primary obligation relating to such Guarantee Obligation (or, if less, the
maximum stated liability set forth in the instrument embodying such Guarantee
Obligation), provided, that in the absence of any such stated amount or stated
liability, the amount of such Guarantee Obligation shall be such guaranteeing
person's maximum reasonably anticipated liability in respect thereof as
determined by the PRISA II in good faith.
"Improper
Distributions" means any payments or distributions of any kind
whatsoever (whether of cash or property) to or for the benefit of the Contract
Holders or any other beneficiary of PRISA II at any time (a) when the
Administrative Agent shall have given, notice to Prudential that payment is to
be made to it pursuant to Section 2(a), or (b) when, based on the last
compliance certificate delivered under Section 19.5(iii), PRISA II is not in
full compliance with all financial covenants set forth in Sections 19.1, 19.2
and 19.3, or (c) when the making of such payment or distribution would cause
PRISA II to fail to be in full compliance with any of such financial covenants;
provided, however, if the event or condition which causes a payment or
distribution to constitute an Improper Distribution hereunder is subsequently
cured by PRISA II to the
satisfaction of Administrative Agent from and after the acceptance of such cure,
such payment or distribution shall no longer be deemed to have been an Improper
Distribution.
"Indebtedness" of any Person at any
date means without duplication, (a) all indebtedness of such Person for borrowed
money, (b) all obligations of such Person for the deferred purchase price of
property or services (other than current trade liabilities incurred in the
ordinary course of business and payable in accordance with customary practices),
to the extent such obligations constitute indebtedness for the purposes of
Agreement Accounting Principles, (c) any other indebtedness of such Person which
is evidenced by a note, bond, debenture or similar instrument, (d) all
Capitalized Lease Obligations, (e) all obligations of such Person in respect of
acceptances issued or created for the account of such Person, (f) all Guarantee
Obligations of such Person (excluding in any calculation of consolidated
indebtedness of the PRISA II, Guarantee Obligations of the PRISA II in respect
of primary obligations of any Consolidated Entity), (g) all reimbursement
obligations of such Person for letters of credit, currency swap agreements,
interest rate swaps or other interest rate management products, valued at the
amount that would be payable by such Person on account thereof if its
obligations thereunder were liquidated on such date, (h) all liabilities secured
by any lien (other than liens for taxes not yet due and payable) on any property
owned by such Person even though such Person has not assumed or otherwise become
liable for the payment thereof, (i) any repurchase obligation or liability of
such Person or any of its Consolidated Entities with respect to accounts or
notes receivable sold by such Person or any of its Consolidated Entities, (j)
any other transaction which is the functional equivalent of or takes the place
of borrowing but which does not constitute a liability on the consolidated
balance sheet of such Person (but excluding future commitments to purchase
assets, but not indebtedness or other liabilities, for the fair market value of
such assets as property by such Person in good faith as of the date of the
applicable commitment to purchase) and (k) any loans where such Person is liable
as a general partner.
"Interest
Expense" means, for any period, all interest expense of the PRISA II and
its Consolidated Entities determined in accordance with Agreement Accounting
Principles for such period plus (i) capitalized interest accrued during such
period with respect to Assets Under Development to the extent not funded from
the proceeds of loans secured by such Assets Under Development and (ii) that
portion of any accrued, or unpaid interest incurred during such period on any
Indebtedness for which the PRISA II is wholly or partially liable under
repayment, interest carry, or performance guarantees, provided that no expense
shall be included more than once in such calculation even if it falls within
more than one of the foregoing categories.
"Net
Assets" means the amount reported as "Net Assets, Representing Equity of
Contract-Holders" in the PRISA II's financial statements from time to time in
accordance with Agreement Accounting
Principles.
"Net Investment Income" means
the amount reported as such in the PRISA II's financial statements for the
Consolidated Group before deduction of any minority interests therein from time
to time in accordance with Agreement Accounting Principles.
"Non-Consolidated Entity" means any
Person in which the Consolidated Group, directly or indirectly,
holds ten percent (10%) or more of such Person's total ownership interests but
which does not
qualify as a Consolidated Entity.
"Over
10% Contract Holder" means as of any date, a Contract Holder which holds
an investment in PRISA II in an amount which (when added to the holdings of any
other Plans maintained by the same employer or employee organization) would
exceed 10% of the total of all assets in PRISA II, as determined in accordance
with Section I(a)(1) of PTE 90-1. As of the date hereof the only Over 10%
Contract Holder is the one listed on Exhibit C-1 hereto.
"Plan"
means an employer pension benefit plan which is covered by Title IV of
ERISA or subject to the minimum funding standards under Section 412 of the
Code.
"Premises"
shall mean the "Premises" defined in Recital (A) of the Multi-Party
Agreement to which is this Exhibit C is attached.
"Premises
of a Person" means any and all Premises, whether real, personal,
tangible, intangible, or mixed, of such Person, or other assets owned, leased or
operated by such Person.
"Total
Assets" as of any particular time, means the value (determined applying
the same methodology used in preparing the PRISA II's 2004 year-end audited
financial statements, with any subsequent changes in such methodology which
would affect the calculation of the financial covenants contained herein being
approved by the Lenders, such approval not to be unreasonably withheld or
delayed) of all assets (as reported in the PRISA II's financial statements for
the Consolidated Group) of the Consolidated Group.
"Total
Outstanding Indebtedness" means, as of any date of determination, all
Indebtedness of PRISA II and its Consolidated Entities outstanding at such date,
determined on a consolidated basis in accordance with Agreement Accounting
Principles, plus the Consolidated Group Pro Rata Liquidation Share of all
Indebtedness of Non-Consolidated Entities.
EXHIBIT
C-1
Over 10%
Contract Holders