----------------------------------------------------------------
CREDIT AGREEMENT
among
PURINA XXXXX, INC.,
as the Company
and
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION,
Individually, as an Issuing Bank and as Administrative Agent
and
FINANCIAL INSTITUTIONS,
NOW OR HEREAFTER PARTIES HERETO
$100,000,000 Revolving Credit Facility
$100,000,000 Tranche A Term Loans
$100,000,000 Tranche B Term Loans
March 12, 1998
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TABLE OF CONTENTS
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Page No.
--------
ARTICLE 1
DEFINITIONS; CONSTRUCTION...........................2
Section 1.1 Definitions..........................2
Section 1.2 Accounting Terms and
Determinations......................22
Section 1.3 Other Definitional Terms............22
ARTICLE 2
AMOUNT AND TERMS OF LOANS..........................22
Section 2.1 Loans and Commitments...............22
Section 2.2 Borrowing Requests..................24
Section 2.3 Letters of Credit...................24
Section 2.4 Disbursement of Funds...............28
Section 2.5 Notes and Amortization..............29
Section 2.6 Interest............................30
Section 2.7 Interest Periods....................31
Section 2.8 Repayment of Loans..................32
Section 2.9 Termination or Reduction of
Commitments.........................33
Section 2.10 Prepayments.........................33
Section 2.11 Continuation and Conversion
Options.............................36
Section 2.12 Fees................................37
Section 2.13 Payments, etc.......................37
Section 2.14 Interest Rate Not Ascertainable,
etc.................................38
Section 2.15 Illegality..........................38
Section 2.16 Increased Costs.....................39
Section 2.17 Change of Lending Office............40
Section 2.18 Funding Losses......................40
Section 2.19 Sharing of Payments, etc............41
Section 2.20 Taxes...............................41
Section 2.21 Pro Rata Treatment..................43
Section 2.22 Replacement of Lenders..............44
ARTICLE 3
CONDITIONS TO BORROWINGS...........................44
Section 3.1 Conditions Precedent to
Initial Loan and Letter of Credit...44
Section 3.2 Conditions Precedent to All
Loans and Letters of Credit.........48
ARTICLE 4
REPRESENTATIONS AND WARRANTIES.....................48
Section 4.1 Corporate Existence.................48
Section 4.2 Corporate Power and Authorization...48
Section 4.3 Binding Obligations.................49
Section 4.4 No Legal Bar or Resultant Lien......49
Section 4.5 No Consent..........................49
i
Section 4.6 Financial Information...............49
Section 4.7 Investments and Guaranties..........49
Section 4.8 Litigation..........................50
Section 4.9 Use of Proceeds.....................50
Section 4.10 Employee Benefits...................50
Section 4.11 Taxes; Governmental Charges.........51
Section 4.12 Titles, etc.........................51
Section 4.13 Defaults............................51
Section 4.14 Compliance with the Law.............51
Section 4.15 Patents, Licenses,
Franchises and Formulas.............52
Section 4.16 No Material Misstatements...........52
Section 4.17 Investment Company Act..............52
Section 4.18 Public Utility Holding
Company Act.........................52
Section 4.19 Subsidiaries........................52
Section 4.20 Insurance...........................52
Section 4.21 Environmental Matters...............53
Section 4.22 Solvency............................54
Section 4.23 Material Contracts..................54
Section 4.24 Employee Matters....................54
Section 4.25 Mortgaged Property..................54
Section 4.26 Senior Indebtedness.................54
Section 4.27 Sales Enhancement Loans and
Sales Enhancement Guarantees........54
Section 4.28 PMI Holding Company.................55
ARTICLE 5
AFFIRMATIVE COVENANTS..............................55
Section 5.1 Certain Affirmative Covenants.......55
(a) Maintenance and Compliance, etc..........55
(b) Payment of Taxes and Claims, etc.........55
(c) Further Assurances.......................55
(d) Performance of Obligations...............55
(e) Insurance................................55
(f) Accounts and Records.....................56
(g) Right of Inspection......................56
(h) Operation and Maintenance of Property....56
(i) Additional Subsidiaries; Additional
Liens....................................56
(j) Non-Consolidation of Unrestricted
Subsidiaries.............................57
(k) Limited Liability Interests..............58
(l) Dissolution of PMI Holding Company.......58
(m) Year 2000 Compatibility..................58
(n) Real Estate Post Closing Items...........58
Section 5.2 Reporting Covenants.................58
ARTICLE 6
NEGATIVE COVENANTS.................................61
Section 6.1 Financial Covenants.................61
Section 6.2 Indebtedness........................63
Section 6.3 Liens...............................64
Section 6.4 Mergers, Sales, etc.................66
Section 6.5 Dividends, etc......................67
Section 6.6 Investments, Loans, etc.............67
Section 6.7 Sales and Leasebacks................69
Section 6.8 Nature of Business..................69
Section 6.9 ERISA Compliance....................70
Section 6.10 Sale or Discount of Receivables.....71
Section 6.11 Negative Pledge Agreements..........71
Section 6.12 Transactions with Affiliates........71
Section 6.13 Unconditional Purchase Obligations..71
Section 6.14 Stock...............................71
Section 6.15 Modifications to Senior
Subordinated Notes; No Voluntary
Prepayments.........................72
Section 6.16 Intercompany Transactions...........72
Section 6.17 Reverse Designation of
Unrestricted Subsidiaries...........72
Section 6.18 Rabobank Limited Guaranty. .........73
ARTICLE 7
EVENTS OF DEFAULT..................................73
Section 7.1 Payments............................73
Section 7.2 Covenants Without Notice............73
Section 7.3 Other Covenants.....................73
Section 7.4 Other Financing Document
Obligations.........................73
Section 7.5 Representations.....................73
Section 7.6 Non-Payments of Other
Indebtedness........................73
Section 7.7 Defaults Under Other Agreements.....74
Section 7.8 Bankruptcy..........................74
Section 7.9 Money Judgment......................74
Section 7.10 Financing Documents.................74
Section 7.11 Change of Control...................75
Section 7.12 Merger Agreement Representations
and Warranties......................75
Section 7.13 Default Under Senior Subordinated
Notes...............................75
Section 7.14 Senior Indebtedness.................75
Section 7.15 BP Indemnity........................75
Section 7.16 Xxxxxxx Indemnity...................75
ARTICLE 8
THE AGENTS.........................................76
Section 8.1 Appointment of Administrative
Agent...............................76
Section 8.2 Limitation of Duties of
Administrative Agent................76
Section 8.3 Lack of Reliance on the
Administrative Agent................76
Section 8.4 Certain Rights of the
Administrative Agent................77
Section 8.5 Reliance by Administrative
Agent...............................77
Section 8.6 INDEMNIFICATION OF ADMINISTRATIVE
AGENT...............................77
Section 8.7 The Administrative Agent in its
Individual Capacity.................77
Section 8.8 May Treat Lender as Owner...........77
Section 8.9 Successor Administrative Agent......78
Section 8.10 Co-Agents...........................78
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ARTICLE 9
MISCELLANEOUS......................................78
Section 9.1 Notices.............................78
Section 9.2 Amendments and Waivers..............78
Section 9.3 No Waiver; Remedies Cumulative......79
Section 9.4 Payment of Expenses,
Indemnities, etc....................80
Section 9.5 Right of Setoff.....................82
Section 9.6 Benefit of Agreement................82
Section 9.7 Successors and Assigns;
Participations and Assignments......82
Section 9.8 GOVERNING LAW; SUBMISSION TO
JURISDICTION; ETC...................85
Section 9.9 Independent Nature of Lenders'
Rights..............................85
Section 9.10 Invalidity..........................86
Section 9.11 Renewal, Extension or
Rearrangement.......................86
Section 9.12 Interest............................86
Section 9.13 Confidential Information............87
Section 9.14 WAIVER OF JURY TRIAL................87
Section 9.15 ENTIRE AGREEMENT....................87
Section 9.16 Attachments.........................88
Section 9.17 Counterparts........................88
Section 9.18 Survival of Indemnities.............88
Section 9.19 Headings Descriptive................88
Section 9.20 Satisfaction Requirement............88
Section 9.21 EXCULPATION PROVISIONS..............88
Section 9.22 Secured Affiliate...................89
Section 9.23 Issuing Banks.......................89
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ANNEXES
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Annex I - Loans and Commitments
SCHEDULES
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Schedule 1.1A - Outstanding Letters of Credit
Schedule 4.19 - Subsidiaries
Schedule 4.23 - Material Contracts
Schedule 4.24 - Employment Contracts
Schedule 4.25 - Mortgaged Real Property
Schedule 4.27 - Sales Enhancement Loans and Sales
Enhancement Guarantees
Schedule 6.2(b)- Existing Indebtedness
Schedule 6.3(a) - Liens
Schedule 6.4(a) - Closed Plants
Schedule 6.6(a) - Existing Investments
EXHIBITS
Exhibit A - Form of Revolving Note
Exhibit B-1 - Form of Tranche A Term Note
Exhibit B-2 - Form of Tranche B Term Note
Exhibit C - Form of Tax Sharing Agreements
Exhibit D - Form of Borrowing Request
Exhibit E-1 - Form of Opinion of August X. Xxxxxxxx
Exhibit E-2 - Form of Opinion of Cleary, Gottlieb,
Xxxxx & Xxxxxxxx
Exhibit E-3 - Form of Opinion of Local Counsel
Exhibit F-1 - Form of Guarantee and Collateral Agreement
Exhibit F-2 - Form of PM Holdings Pledge Agreement
Exhibit F-3 - Form of Deed of Trust
Exhibit F-4 - Form of PM Holdings Guaranty
Exhibit F-5 - Form of Cash Collateral Account Agreement
Exhibit G - Form of Assignment and Acceptance
Exhibit H - Form of U.S. Tax Compliance Certificate
v
CREDIT AGREEMENT
THIS CREDIT AGREEMENT (this "Agreement") is made and
entered into as of this 12th day of March, 1998, among PURINA
XXXXX, INC., a Delaware corporation (the "Company"), CHASE BANK
OF TEXAS, NATIONAL ASSOCIATION, individually, as a Lender, as an
Issuing Bank and as the Administrative Agent, and each of the
lenders that is a signatory hereto or which becomes a party
hereto as provided in Section 9.7 (individually, a "Lender" and,
collectively, the "Lenders").
INTRODUCTORY STATEMENT:
PM Holdings Corporation, a Delaware Corporation ("PM
Holdings"), owns all of the issued and outstanding capital stock
of the Company.
Xxxx Agriculture Company, a Nebraska corporation ("KAC"),
owns all of the issued and outstanding shares of capital stock of
Arch Acquisition Corporation, a Delaware corporation
("Acquisition Co.").
KAC, through a merger (the "Merger") of Acquisition Co.
with and into PM Holdings, will acquire all of the issued and
outstanding shares of capital stock of PM Holdings. By virtue of
the Merger, all of the shares of PM Holdings' common stock ("PM
Holdings Common Stock") outstanding immediately prior to the time
and date when the certificate of merger relating to the Merger is
accepted for record by the Secretary of State of the State of
Delaware (or such later time and date as is specified in such
certificate of merger) (the "Effective Time"), shall be canceled
and converted into the right to receive consideration of $540 per
share (the "Merger Consideration"), all as set forth in, and
subject to the terms and conditions of, the Merger Agreement.
Each share of the common stock of Acquisition Co., issued and
outstanding immediately prior to the Effective Time, shall, at
the Effective Time, be converted into one fully paid and
nonassessable share of common stock of PM Holdings. In addition,
the Merger Agreement provides that each outstanding option to
purchase shares of PM Holdings Common Stock (collectively, the
"Options") and each stock rights unit which entitles the holder
thereof to acquire PM Holdings Common Stock (collectively, the
"Stock Units") will be 100% vested prior to the Effective Time.
Such Options and Stock Units will be canceled and extinguished
immediately prior to the Effective Time. Option holders will be
entitled to receive the Merger Consideration for each share of PM
Holdings Common Stock into which such Options were exercisable
immediately prior to the Effective Time, less the exercise price
of such Options. Stock Unit holders will be entitled to receive
the Merger Consideration for each share of PM Holdings Common
Stock into which such Stock Options were exercisable immediately
prior to the Effective Time.
The Company and its Subsidiaries desire that the Lenders
extend (a) certain term credit facilities to the Company to,
among other things, provide a portion of the funds to refinance
Indebtedness of the Company under the Existing Credit Agreement
(as defined below) and the Existing Senior Subordinated Notes (as
defined below) and to pay expenses in connection therewith, and
(b) a revolving credit facility to the Company to provide working
capital financing for the Company and its Subsidiaries, to
provide funds for acquisitions and for other general corporate
purposes of the Borrower and its Subsidiaries, and to redeem the
IRBs (as defined below).
AGREEMENT:
In consideration of the mutual covenants and agreements
herein contained, the Company, the Administrative Agent (as
defined below), the Issuing Bank (as defined below) and the
Lenders agree as follows:
ARTICLE 1
DEFINITIONS; CONSTRUCTION
Section 1.1 Definitions. As used herein, the following
terms shall have the meanings herein specified (to be equally
applicable to both the singular and plural forms of the terms
defined). Reference to any party to a Financing Document means
that party and its successors and assigns.
"Acquisition Co." shall have the meaning provided in
the Introductory Statement.
"Administrative Agent" shall mean Chase Bank of Texas,
National Association, acting in the manner and to the extent
described in Article 8.
"Advance Notice" shall mean written or telecopy notice
(with telephonic confirmation in the case of telecopy notice),
which in each case shall be irrevocable, from the Company to be
received by the Administrative Agent before 11:00 a.m. (Houston
time), by the number of Business Days in advance of any
Borrowing, conversion, continuation or prepayment of any Loan or
Loans pursuant to this Agreement as respectively indicated below:
(a) Eurodollar Loans - 3 Business Days; and
(b) Base Rate Loans - Same Business Day.
For the purpose of determining the respectively applicable Loans
in the case of the conversion from one Type of Loan into another,
the Loans into which there is to be a conversion shall control.
The Administrative Agent, each Issuing Bank and each Lender are
entitled to rely upon and act upon telecopy notice made or
purportedly made by the Company, and the Company hereby waives
the right to dispute the authenticity and validity of any such
transaction once the Administrative Agent or any Lender has
advanced funds or any Issuing Bank has issued Letters of Credit,
absent manifest error.
"Affiliate" shall mean any Person controlling,
controlled by or under common control with any other Person
(excluding any trustee under, or any committee with
responsibility for administering, any Plan or any welfare plan
(as defined under Section 3(1) of ERISA)). For purposes of this
definition, "control" (including "controlled by" and "under
common control with") means the possession, directly or
indirectly, of the power to either (a) vote 10% or more of the
securities having ordinary voting power for election of directors
of such Person or (b) direct or cause the direction of the
management and policies of such Person, whether through the
ownership of voting securities or otherwise.
"Agents" shall mean, collectively, the Administrative
Agent and the Co-Agents.
"Aggregate Revolving Credit Exposure" shall mean the
sum of all of the Revolving Credit Lenders' Revolving Credit
Exposures.
"Agreement" shall mean this Credit Agreement, as
amended, modified or supplemented from time to time.
"Applicable Commitment Fee Percentage" shall mean, on
any day, the applicable per annum percentage set forth at the
appropriate intersection in the table shown below, based on the
Consolidated
2
Leverage Ratio for the Rolling Period ending on the most recent
Quarterly Date with respect to which the Company is
required to deliver the Current Information:
------------------------------------------------------------
Leverage Ratio Commitment Fee Percentage
------------------------------------------------------------
Greater than or equal to 4.00 .500%
------------------------------------------------------------
Greater than or equal to 2.00 but .375%
less than 4.00
------------------------------------------------------------
Less than 2.00 .300%
------------------------------------------------------------
Each change in the Applicable Commitment Fee Percentage based on
a change in the Current Information shall be effective on the
date on which the Current Information is received by the
Administrative Agent and shall remain in effect until the next
change to be effected pursuant to this paragraph. Notwithstanding
the foregoing, (a) the initial Applicable Commitment Fee
Percentage will be .500% from the Closing Date through the date
the Current Information for the second full Fiscal Quarter after
the Closing Date is received by the Administrative Agent, and (b)
if at any time the Company fails to deliver Current Information
on or before the date required pursuant to Section 5.2 (without
regard to grace periods), the Applicable Commitment Fee
Percentage will be .500% from the date such Current Information
is due pursuant to Section 5.2 (without regard to grace periods)
through the date the Administrative Agent receives all Current
Information then due pursuant to Section 5.2.
"Applicable Lender" shall mean, with respect to any
Borrowing of Revolving Credit Loans, each Revolving Credit
Lender, with respect to any Borrowing of Tranche A Term Loans,
each Tranche A Term Loan Lender, and with respect to any
Borrowing of Tranche B Term Loans, each Tranche B Term Loan
Lender.
"Applicable Margin" shall mean, on any day and with
respect to any (a) Tranche B Term Loan, for Base Rate Loans,
1.25% per annum and for Eurodollar Loans, 2.25% per annum, and
(b) Revolving Credit Loan or Tranche A Term Loan, the applicable
per annum percentage set forth at the appropriate intersection in
the table shown below, based on the Consolidated Leverage Ratio
for the Rolling Period ending on the most recent Quarterly Date
with respect to which the Company is required to deliver the
Current Information:
3
--------------------------------------------------------------
Leverage Ratio Eurodollar Loan Base Rate Loan
Applicable Margin Applicable Margin
Percentage Percentage
--------------------------------------------------------------
Greater than or equal 2.00% 1.00%
to 5.00
--------------------------------------------------------------
Greater than or equal
to 4.00 but less than 5.00 1.75% 0.75%
--------------------------------------------------------------
Greater than or equal
to 3.00 but less than 4.00 1.50% 0.50%
--------------------------------------------------------------
Greater than or equal
to 2.00 but less than 3.00 1.25% 0.25%
--------------------------------------------------------------
Less than 2.00 1.00% 0.00%
--------------------------------------------------------------
Each change in the Applicable Margin based on a change in the
Current Information shall be effective on the date on which the
Current Information is received by the Administrative Agent and
shall remain in effect until the next change to be effected
pursuant to this paragraph. Notwithstanding the foregoing, (A)
for the period from the Closing Date through the date the Current
Information for the second full Fiscal Quarter after the Closing
Date is received by the Administrative Agent, the initial
Eurodollar Loan Applicable Margin for the Revolving Credit Loans
and Tranche A Term Loans will be 2.00% and the initial Base Rate
Loan Applicable Margin for the Revolving Credit Loans and Tranche
A Term Loans will be 1.00% and (B) if at any time the Company
fails to deliver Current Information on or before the date
required pursuant to Section 5.2 (without regard to grace
periods), the Eurodollar Loan Applicable Margin for the Revolving
Credit Loans and the Tranche A Term Loans will be 2.00% and the
Base Rate Loan Applicable Margin for the Revolving Credit Loans
and the Tranche A Term Loans will be 1.00% from the date such
Current Information is due pursuant to Section 5.2 (without
regard to grace periods) through the date the Administrative
Agent receives all Current Information then due pursuant to
Section 5.2.
"Applicable Percentage" shall mean, with respect to
any Revolving Credit Lender, such Lender's Revolving Credit
Percentage, with respect to any Tranche A Term Loan Lender, such
Lender's Tranche A Term Loan Percentage and with respect to any
Tranche B Term Loan Lender, such Lender's Tranche B Term Loan
Percentage.
"Application" shall mean an "Application and Agreement
for Letters of Credit," or similar instruments or agreements,
entered into between the Company and an Issuing Bank in
connection with any Letter of Credit.
"Approved Fund" shall mean with respect to any Lender
that is a fund that invests in commercial loans, any other fund
that invests in commercial loans and is managed by the same
investment advisor as such Lender or by an Affiliate of such
investment advisor.
"Assignment and Acceptance" shall have the meaning
provided in Section 9.7(c).
"Asset Sale" shall mean any Disposition of Property
other than (a) Dispositions permitted by Subsections 6.4(a)(1)
and 6.4(a)(2), (b) any Disposition (excluding the HQ
Sale/Leaseback and Permitted Securitizations) which, together
with any related Disposition of Property, yields gross proceeds
to the
4
Company or any of its Subsidiaries (valued at the initial
amount thereof in the case of non-cash proceeds consisting of
notes or other debt securities and valued at fair market value in
the case of other non-cash proceeds) of less than $350,000,
provided, that the aggregate gross proceeds of Dispositions of
Property excluded from the definition of Asset Sale pursuant to
this clause (b) shall not exceed $1,000,000 in any fiscal year of
the Company, (c) Permitted Securitizations, and (d) the HQ
Sale/Leaseback.
"Bankruptcy Code" shall have the meaning provided in
Section 7.8.
"Base CD Rate" shall mean a rate per annum equal to
the sum of (a) the product of (1) the Three-Month Secondary CD
Rate and (2) a fraction, whose numerator is one and whose
denominator is one minus the C\D Reserve Percentage and (b) the
C\D Assessment Rate.
"Base Rate" shall have the meaning provided in
Section 2.6(a).
"Base Rate Loan" shall mean a Revolving Credit Loan, a
Tranche A Term Loan or a Tranche B Term Loan bearing interest at
the rate provided in Section 2.6(a).
"Benefit Plan" shall mean any employee pension benefit
plan, as defined in section 3(2) of ERISA (other than a
Multiemployer Plan), which (a) is currently or hereafter
sponsored, maintained or contributed to by the Company, a
Subsidiary of the Company or an ERISA Affiliate or (b) was at any
time during the six preceding calendar years, sponsored,
maintained or contributed to by the Company, a Subsidiary of the
Company or an ERISA Affiliate.
"Borrowing" shall mean a borrowing pursuant to a
Borrowing Request or a continuation or a conversion pursuant to
Section 2.11 consisting, in each case, of the same Type of Loans
having, in the case of Eurodollar Loans, the same Interest Period
(except as otherwise provided in Sections 2.14 and 2.15) and made
previously or being made concurrently, with respect to Revolving
Credit Loans, by all of the Revolving Credit Lenders, with
respect to Tranche A Term Loans, by all of the Tranche A Term
Loan Lenders, and with respect to Tranche B Term Loans, by all of
the Tranche B Term Loan Lenders.
"Borrowing Request" shall mean a request for a
Borrowing pursuant to Section 2.2, substantially in the form
attached as Exhibit D.
"BP Indemnity" shall mean the indemnification
obligations of the BP Parties in favor of PMI Acquisition
Corporation (now known as the Company) as set forth in that
certain Stock Purchase Agreement dated as of June 22, 1993, among
PMI Acquisition Corporation and the BP Parties.
"BP Parties" shall mean, collectively, BP America
Inc., a Delaware corporation, BP Nutrition Inc., a Delaware
corporation, and The Standard Oil Company, an Ohio corporation.
"Business Day" shall mean any day excluding Saturday,
Sunday and any other day on which banks are required or
authorized to close in New York, New York or Houston, Texas and,
if the applicable Business Day relates to Eurodollar Loans, on
which trading is carried on by and between banks in Dollar
deposits in the applicable interbank Eurodollar market.
"Capital Expenditures" shall mean, for any period,
without duplication, all expenditures (whether paid in cash or
accrued as a liability, including the portion of Capital Lease
Obligations originally incurred during such period that are
capitalized for the consolidated balance sheet of the Company) by
the
5
Company and the Subsidiary Guarantors during such period, that,
in conformity with GAAP, are included in "capital expenditures,"
"additions to property, plant or equipment" or comparable items
in the consolidated financial statements of the Company, but
excluding expenditures for the restoration, repair or replacement
of any fixed or capital asset that was destroyed or damaged, in
whole or in part, in an amount not in excess of any insurance
proceeds received in connection with such destruction or damage.
"Capital Lease Obligations" shall mean, as to any
Person, the obligations of such Person to pay rent or other
amounts under a lease of (or other agreement conveying the right
to use) real and/or personal property which obligations are
required to be classified and accounted for as a liability for a
capital lease on a balance sheet of such Person and, for purposes
of this Agreement, the amount of such obligations shall be the
capitalized amount thereof.
"Cash Collateral Account Agreement" shall mean the
Cash Collateral Account Agreement executed by the Company,
substantially in the form of Exhibit F-5.
"C\D Assessment Rate" shall mean for any day as
applied to any Base Rate Loan, the annual assessment rate in
effect on such date that is payable by a member of the Bank
Insurance Fund classified as "well-capitalized" and within
supervisory subgroup "B" (or a comparable risk classification)
within the meaning of 12 C.F.R. Part 327 (or any successor
provision) to the Federal Deposit Insurance Corporation (the
"FDIC") for the FDIC (or any successor thereto) to insure time
deposits at offices of such member in the United States,
provided, that if, as a result of any change in any law, rule or
regulation, it is no longer possible to determine the C\D
Assessment Rate as aforesaid, then the C\D Assessment Rate shall
be such annual rate as shall be determined by the Administrative
Agent to be representative of the cost of such insurance to the
Lenders.
"C\D Reserve Percentage" shall mean for any day as
applied to any Base Rate Loan, that percentage (expressed as a
decimal) that is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any
successor thereto) for determining the then current reserve
requirement for the Administrative Agent in respect of new
negotiable non-personal time deposits in Dollars of over $100,000
with maturities approximately equal to three months.
"Change of Control" shall mean either (a) a "Change in
Control", as defined in the Senior Subordinated Notes Indenture,
or (b) Xxxx Industries' failure to own, directly or indirectly,
of record, at least 51% of the Voting Stock of the Company.
"Chase" shall mean Chase Bank of Texas, National
Association, in its individual capacity or as the Issuing Bank,
as the case may be, and not as Administrative Agent.
"Closing Date" shall mean the "as of" date of this
Agreement set forth in the first paragraph hereof.
"Co-Agents" shall mean Lenders designated as
"Co-Agents" on the signature pages hereof.
"Code" shall mean the Internal Revenue Code of 1986,
as amended, and any successor statute.
6
"Collateral" shall mean the Company's, PM Holdings's
and the Subsidiary Guarantors' Properties described in and
subject to the Liens, privileges, priorities and security
interests purported to be created by any Security Instrument.
"Commitments" shall mean, for any Lender, such
Lender's Revolving Credit Commitment and Term Loan Commitments.
"Commodity Swap Agreement" shall mean any contract for
sale for future delivery of commodities (whether or not the
subject commodities are to be delivered), hedging contract,
forward contract, swap agreement, futures contract or other
commodity pricing protection agreement or option with respect to
any such transaction, designed to hedge against fluctuations in
prices of the subject commodities.
"Company" shall mean Purina Xxxxx, Inc., a Delaware
corporation.
"Consolidated EBITDA" shall mean, as to the Company
and the Subsidiary Guarantors on a consolidated basis, for any
period, without duplication, the amount equal to net income,
less, to the extent included in net income, any non-cash income,
extraordinary gains and gains on the disposition of assets other
than those incurred in the ordinary course of business, and plus,
to the extent deducted from net income, Consolidated Interest
Expense, depreciation, depletion and impairment, amortization of
leasehold and intangibles, other non-cash expenses, income tax
expenses (including amounts payable under the Tax Sharing
Agreements), extraordinary losses and losses on the disposition
of assets other than those incurred in the ordinary course of
business, in each case for such period.
"Consolidated Excess Cash Flow" shall mean (a)
Consolidated EBITDA for any Fiscal Year, minus (b) for each such
Fiscal Year and for the Company and the Subsidiary Guarantors on
a consolidated basis, the sum of (1) scheduled payments of
principal pursuant to Sections 2.5(b) and 2.5(c), plus (2) the
principal portion of scheduled payments under Capital Lease
Obligations, plus (3) Consolidated Interest Expense, plus (4)
cash taxes applicable to such Fiscal Year and paid prior to the
date of determination by or on behalf of the Company and the
Subsidiary Guarantors, plus (5) any dividends to PM Holdings
permitted by Section 6.5 (other than Sections 6.5(d) and (e)) and
actually paid by the Company, and plus (6) the lesser of actual
Capital Expenditures and $40,000,000. Notwithstanding the
foregoing, for the purpose of calculating Consolidated Excess
Cash Flow for the Fiscal Year ending December 31, 1998, such
Fiscal Year shall be deemed to commence on the Closing Date and
end on December 31, 1998.
"Consolidated Fixed Charge Coverage Ratio" shall mean,
as to the Company and the Subsidiary Guarantors on a consolidated
basis, for any day, the ratio of (a) Consolidated EBITDA for the
Rolling Period ending on the most recent Quarterly Date, less
cash income taxes actually paid during the Rolling Period ending
on the most recent Quarterly Date net of cash income tax refunds
actually received during such Rolling Period to (b) the sum of
(1) Scheduled Principal Payments made during the Rolling Period
ending on the most recent Quarterly Date, plus (2) Consolidated
Interest Expense, plus (3) actual Capital Expenditures (excluding
Capital Lease Obligations incurred during such period) made
during the Rolling Period ending on the most recent Quarterly
Date, plus (4) all dividends permitted by Section 6.5 and paid
during the Rolling Period ending on the most recent Quarterly
Date.
"Consolidated Interest Coverage Ratio" shall mean, as
to the Company and the Subsidiary Guarantors on a consolidated
basis, on any day, the ratio of (a) Consolidated EBITDA for the
Rolling Period ending on the then most recent Quarterly Date to
(b) Consolidated Interest Expense for such Rolling Period.
7
"Consolidated Interest Expense" shall mean, for any
period, total cash interest expense (including that attributable
to Capital Lease Obligations) of the Company and the Subsidiary
Guarantors for such period with respect to all outstanding
Indebtedness of the Borrower and the Subsidiary Guarantors
(including, without limitation, all commissions, discounts and
other fees and charges owed with respect to letters of credit and
bankers' acceptance financings and net costs under Interest Rate
Swap Agreements to the extent such costs are allocable to such
period in accordance with GAAP), provided, that for the Rolling
Periods ending on June 30, 1998, September 30, 1998 and December
31, 1998, Consolidated Interest Expense for the relevant Rolling
Period shall be calculated using Consolidated Interest Expense
for the number of full Fiscal Quarters of the Company subsequent
to the Closing Date multiplied by 4, 2 and 4/3, respectively.
"Consolidated Leverage Ratio" shall mean, as to the
Company and the Subsidiary Guarantors on a consolidated basis, on
any day, the ratio of (a) Funded Indebtedness as of the date of
determination to (b) Consolidated EBITDA for the Rolling Period
ending on the most recent Quarterly Date as of the date of
determination.
"Cover", when required by this Agreement for Letter of
Credit Liabilities, shall be effected by paying to the
Administrative Agent in immediately available funds, to be held
by the Administrative Agent in a collateral account maintained by
the Administrative Agent at its Payment Office and collaterally
assigned as security pursuant to the Cash Collateral Account
Agreement, an amount equal to the maximum amount of each
applicable Letter of Credit available for drawing at any time.
Such amount shall be retained by the Administrative Agent in such
collateral account until such time as the applicable Letter of
Credit shall have expired and the Reimbursement Obligations, if
any, with respect thereto shall have been fully satisfied.
"Current Information" shall mean, as of any day, the
financial statements and other related information for any
applicable period most recently required to be delivered to the
Administrative Agent pursuant to Sections 5.2(a), 5.2(b) and
5.2(c).
"Deed of Trust" shall mean any Mortgage, Deed of
Trust, Assignment, Security Agreement and Financing Statement
(including, without limitation, any such mortgage or deed of
trust covering a leasehold interest to the extent required
hereby) executed by the Company or any Subsidiary Guarantor
pursuant to the terms hereof as security for the payment and
performance of the Lender Indebtedness, substantially in the form
of Exhibit F-3.
"Default" shall mean an Event of Default or any
condition or event which, with notice or lapse of time or both,
would constitute an Event of Default.
"Disposition" shall mean, with respect to any
Property, any sale, lease, assignment, conveyance, transfer, or
other disposition thereof; and the terms "Dispose" and "Disposed
of" shall have correlative meanings.
"Dollar" and the sign "$" shall mean lawful money of
the United States of America.
"EBITDA Value" shall mean, with respect to any
manufacturing facility owned by the Company or any Subsidiary
Guarantor, the amount of Consolidated EBITDA attributable to such
facility for the Fiscal Year ended December 31, 1997.
8
"Environmental Laws" shall mean any and all laws,
statutes, ordinances, rules, regulations, orders, or
determinations of any Governmental Authority pertaining to health
or the environment in effect in any and all jurisdictions in
which the Company or its Subsidiaries are conducting or at any
time have conducted business, or where any Property of the
Company or its Subsidiaries is located, or where any hazardous
substances generated by or disposed of by the Company or its
Subsidiaries are located, including but not limited to the Oil
Pollution Act of 1990 ("OPA"), the Clean Air Act, as amended, the
Comprehensive Environmental, Response, Compensation, and
Liability Act of 1980 ("CERCLA"), as amended, the Federal Water
Pollution Control Act, as amended, the Occupational Safety and
Health Act of 1970, as amended, the Resource Conservation and
Recovery Act of 1976 ("RCRA"), as amended, the Safe Drinking
Water Act, as amended, the Toxic Substances Control Act, as
amended, the Superfund Amendments and Reauthorization Act of
1986, as amended, and other environmental conservation or
protection laws. The term "oil" shall have the meaning specified
in OPA; the terms "hazardous substance," "release" and
"threatened release" have the meanings specified in CERCLA, and
the terms "solid waste" and "disposal" (or "disposed") have the
meanings specified in RCRA; provided, however, in the event
either CERCLA or RCRA is amended so as to change the meaning of
any term defined thereby, such changed meaning shall apply
subsequent to the effective date of such amendment, and provided,
further, that to the extent the laws of the state in which any
Property of the Company or its Subsidiaries is located establish
a meaning for "oil," "hazardous substance," "release," "solid
waste" or "disposal" which is broader than that specified in
either OPA, CERCLA or RCRA, such broader meaning shall apply.
"Equity" shall mean shares of capital stock or a
partnership, profits, capital or member interest, or options,
warrants or any other right to substitute for or otherwise
acquire the capital stock or a partnership, profits, capital or
member interest of any Person.
"ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended, and any successor statute.
"ERISA Affiliate" shall mean each trade or business
(whether or not incorporated) which together with the Company or
a Subsidiary of the Company would be deemed to be a "single
employer" within the meaning of Section 4001(b)(1) of ERISA or
Subsections 414(b), (c), (m) or (o) of the Code.
"ERISA Event" shall mean (a) a "Reportable Event"
described in Section 4043 of ERISA and the regulations issued
thereunder (other than a "Reportable Event" not subject to the
provision for 30-day notice to the PBGC under Subsections .14,
.18, .19 or .20 of Part 2615 of the PBGC regulations), (b) the
withdrawal of the Company, a Subsidiary of the Company or any
ERISA Affiliate from a Plan during a plan year in which it was a
"substantial employer" as defined in Section 4001(a)(2) of ERISA,
(c) the filing of a notice of intent to terminate a Plan or the
treatment of a Plan amendment as a termination under Section
4041(c) of ERISA, (d) the institution of proceedings to terminate
a Plan by the PBGC, (e) any other event or condition which could
reasonably be expected to constitute grounds under Section 4042
of ERISA for the termination of, or the appointment of a trustee
to administer, any Plan, or (f) the partial or complete
withdrawal of the Company, a Subsidiary of the Company or any
ERISA Affiliate from a Multiemployer Plan.
"Eurodollar Loan" shall mean a Revolving Credit Loan,
a Tranche A Term Loan or a Tranche B Term Loan bearing interest
at the rate provided in Section 2.6(b).
"Eurodollar Rate" shall mean, with respect to any
Borrowing of Eurodollar Loans for any Interest Period, the
product of (a) (1) the interest rate per annum shown on page 3750
of the Dow Xxxxx &
9
Company Telerate screen or any successor page as the composite
offered rate for London interbank deposits with a period
comparable to the Interest Period for such Eurodollar Loan, as
shown under the heading "USD" at 11:00 A.M. (London time) two
Business Days prior to the first day of such Interest Period or
(2) if the rate in clause (1) of this definition is not shown for
any particular day, the average interest rate per annum (rounded
upwards, if necessary, to the next 1/16th of 1%) offered to the
Administrative Agent in the interbank Eurodollar market for
Dollar deposits of amounts in funds comparable to the principal
amount of the Eurodollar Loan to which such Eurodollar Rate is to
be applicable with maturities comparable to the Interest Period
for which such Eurodollar Rate will apply as of approximately
10:00 a.m. (Houston time) two Business Days prior to the
commencement of such Interest Period, times (b) Statutory
Reserves.
"Event of Default" shall have the meaning provided
in Article 7.
"Exchange Rate Swap Agreement" shall mean any contract
for sale, purchase, or exchange or for future delivery of foreign
currency (whether or not the subject currency is to be delivered
or exchanged), hedging contract, forward contract, swap
agreement, futures contract, or other foreign exchange protection
agreement or option with respect to any such transaction,
designed to hedge against fluctuations in foreign exchange rates.
"Excluded Taxes" shall mean with respect to the
Administrative Agent, any Lender, any Issuing Bank or any other
recipient of any payment to be made by or on account of any
obligation of the Company hereunder, (a) income or franchise
taxes imposed on (or measured by) its net income, gains, receipts
or excess profits by the United States of America, or by the
jurisdiction under the laws of which such recipient is organized
or in which its principal office is located or, in the case of
any Lender, in which its applicable lending office is located,
(b) any branch profits taxes imposed by the United States of
America or any similar tax imposed by any other jurisdiction in
which the Company is located, and (c) in the case of a Foreign
Lender any withholding tax that is imposed on amounts payable to
such Foreign Lender at the time such Foreign Lender becomes a
party to this Agreement (or designates a new lending office) or
is attributable to such Foreign Lender's failure to comply with
Section 2.20(f), provided, that Excluded Taxes shall not include
withholding taxes to which (x) an existing Foreign Lender was
entitled at the time of designation of a new lending office, or
(y) the assignor of a new Foreign Lender was entitled at the time
of assignment to such Foreign Lender.
"Existing Credit Agreement" shall mean the credit
agreement dated as of September 27, 1993, among PMI Acquisition
Corporation, Texas Commerce Bank National Association,
individually and as administrative agent, The CIT Group/Business
Credit, Inc., individually and as collateral agent, and the
lenders party thereto, as amended from time to time.
"Existing PM Holdings Discount Notes" shall mean the
11 1/2% Subordinated Discount Debentures due September 1, 2005,
of PM Holdings issued pursuant to that certain Indenture, dated
as of September 27, 1993, between PM Holdings and The Bank of New
York, as Trustee.
"Existing Senior Subordinated Notes" shall mean the 10
1/4% Senior Subordinated Notes due September 1, 2003, of the
Company issued pursuant to that certain Indenture, dated as of
September 27, 1993, between PMI Acquisition Corporation and IBJ
Xxxxxxxx Bank & Trust Company, as Trustee.
"Federal Funds Effective Rate" shall mean, for any
day, the per annum rate equal to the weighted average of the
interest rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a
10
Business Day, for the next preceding 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 such day on such transactions received by the
Administrative Agent from three Federal funds brokers of
recognized standing selected by it.
"Fee Letter" shall mean the letter agreement dated
February 2, 1998, regarding fees, executed by Chase Securities
Inc. and accepted and agreed to by the Company.
"Financial Statements" shall mean the audited
consolidated financial statements of the Company for the Fiscal
Years ended December 31, 1996 and December 31, 1997.
"Financing Documents" shall mean this Agreement, the
Notes, the PM Holdings Guaranty, the Security Instruments, the
Applications, the Borrowing Requests and the Fee Letter, together
with any other document, instrument or agreement (other than
participation, agency or similar agreements among the Lenders or
between any Lender and any other bank or creditor with respect to
any indebtedness or obligations of PM Holdings or the Company or
its Subsidiaries hereunder or thereunder) now or hereafter
entered into in connection with the Loans, the Lender
Indebtedness or the Collateral, as such documents, instruments or
agreements may be amended, modified or supplemented from time to
time.
"Fiscal Quarter" shall mean the fiscal quarter of the
Company, ending on the last day of each March, June, September
and December in each year.
"Fiscal Year" shall mean the fiscal year of the
Company, ending on December 31 of each year.
"Foreign Lender" shall mean any Lender that is
organized under the laws of a jurisdiction other than that in
which the Company is located. For purposes of this definition,
the United States of America, each State thereof and the District
of Columbia shall be deemed to constitute a single jurisdiction.
"Funded Indebtedness" shall mean, as to any Person,
without duplication, all Indebtedness for borrowed money, all
obligations evidenced by bonds, debentures, notes, or other
similar instruments, all Capital Lease Obligations, all Guarantee
Obligations with respect to Funded Indebtedness for which demand
has been made for payment and all Letter of Credit Liabilities.
"GAAP" shall mean generally accepted accounting
principles as applied in accordance with Section 1.2.
"Governmental Authority" shall mean any (domestic or
foreign) federal, state, province, county, city, municipal or
other political subdivision or government, department,
commission, board, bureau, court, central bank, agency or any
other instrumentality of any of them (including, but not limited
to, the United States Food and Drug Administration and the
Department of Agriculture).
"Governmental Requirement" shall mean any law,
statute, code, ordinance, order, rule, regulation, judgment,
decree, injunction, franchise, permit, certificate, license,
authorization or other direction or requirement (including, but
not limited to, any of the foregoing which relate to
Environmental Laws and occupational, safety and health standards
or controls) of any Governmental Authority.
11
"Guarantee and Collateral Agreement" shall mean the
Guarantee and Collateral Agreement executed by the Company and
each Subsidiary Guarantor pursuant to the terms hereof securing
(and, with respect to each Subsidiary Guarantor, guaranteeing)
the payment and performance of the Lender Indebtedness,
substantially in the form of Exhibit F-1.
"Guarantee Obligation" shall mean, as to any Person
(the "guaranteeing person"), any obligation 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, counterindemnity 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, (1) to purchase any such primary obligation or
any property constituting direct or indirect security therefor,
(2) to advance or supply funds (A) for the purchase or payment of
any such primary obligation or (B) to maintain working capital or
equity capital of the primary obligor or otherwise to maintain
the net worth or solvency of the primary obligor, (3) 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, or (4) 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 endorsements of instruments for deposit or collection in
the ordinary course of business. The amount of any Guarantee
Obligation of any guaranteeing person shall be deemed to be the
lower of (a) an amount equal to the stated or determinable amount
of the primary obligation in respect of which such Guarantee
Obligation is made and (b) the maximum amount for which such
guaranteeing person may be liable pursuant to the terms of the
instrument embodying such Guarantee Obligation, unless such
primary obligation and the maximum amount for which such
guaranteeing person may be liable are not stated or determinable,
in which case the amount of such Guarantee Obligation shall be
such guaranteeing person's maximum reasonably anticipated
liability in respect thereof as determined by the Borrower in
good faith.
"Hedge Agreement" shall mean (a) any Commodity Swap
Agreement, (b) any Interest Rate Swap Agreement, or (c) any
Exchange Rate Swap Agreement.
"Highest Lawful Rate" shall mean, with respect to each
Lender, the maximum nonusurious interest rate, if any, that at
any time or from time to time may be contracted for, taken,
reserved, charged or received on the Notes or on other Lender
Indebtedness, as the case may be, owed to it under the law of any
jurisdiction whose laws may be mandatorily applicable to such
Lender notwithstanding other provisions of this Agreement, or law
of the United States of America applicable to such Lender and the
Transactions, which would permit such Lender to contract for,
charge, take, reserve or receive a greater amount of interest
than under such jurisdiction's law.
"HQ Sale" shall mean the sale of the Company's
headquarters building located at 0000 Xxxxx Xxxxxx Xxxx, Xx.
Xxxxx Xxxxxxxx other than a sale in connection with an HQ
Sale/Leaseback.
"HQ Sale/Leaseback" shall mean the sale for fair
market value of the Company's headquarters building located at
0000 Xxxxx Xxxxxx Xxxx, Xx. Xxxxx, Xxxxxxxx in connection with a
transaction whereby the Company or any of its Subsidiaries then
or thereafter leases, as lessee, all or any part of such
Property.
12
"Indebtedness" of any Person shall mean:
(a) all obligations of such Person for borrowed money
and obligations evidenced by bonds, debentures, notes or
other similar instruments;
(b) all obligations of such Person (whether contingent
or otherwise) in respect of bankers' acceptances, letters
of credit, surety or other bonds and similar instruments;
(c) all obligations of such Person to pay the deferred
purchase price of Property or services (other than for
borrowed money);
(d) all Capital Lease Obligations of such Person;
(e) all Guarantee Obligations of such Person;
(f) Indebtedness of others secured by any Lien upon
Property owned by such Person, whether or not assumed;
(g) obligations to deliver goods or services in
consideration of advance payments, excluding such
obligations incurred in the ordinary course of business as
conducted by the Company and its Subsidiaries as of the
Closing Date; and
(h) the net amount of obligations of such Person under
agreements of the types described in the definitions of
Commodity Swap Agreements, Exchange Rate Swap Agreements
and Interest Rate Swap Agreements.
"Indemnified Taxes" shall mean Taxes other than
Excluded Taxes.
"Interest Period" shall mean, with respect to each
Borrowing of Eurodollar Loans, an interest period complying with
the terms and provisions of Section 2.7.
"Interest Rate Swap Agreement" shall mean any rate
swap, rate cap, rate floor, rate collar, forward rate agreement,
futures or other rate protection agreement or option with respect
to any such transaction, designed to hedge against fluctuations
in interest rates.
"IRBs" shall mean (a) the $8,300,000 Washington
County, Maryland Economic Development Revenue Bonds, Series 1996
(Purina Xxxxx, Inc. Project), and (b) the $9,100,000 Iredell
County Industrial Facilities and Pollution Control Financing
Authority Industrial Development Revenue Bonds, Series 1995
(Purina Xxxxx, Inc. Project).
"Issuing Bank" shall mean, for each Letter of Credit,
Chase or any of its affiliates (or not more than one other Lender
designated by the Company and approved by the Administrative
Agent, such approval not to be unreasonably withheld), as the
issuing bank for such Letter of Credit, at the option of the
Company.
"KAC" shall have the meaning provided in the
Introductory Statement.
"Xxxx Industries" shall mean Xxxx Industries, Inc., a
Kansas corporation.
13
"Lender" shall have the meaning provided in the
opening paragraph of this Agreement.
"Lender Indebtedness" shall mean any and all amounts
owing or to be owing by the Company to the Administrative Agent,
the Issuing Banks or the Lenders with respect to or in connection
with the Loans, any Letter of Credit Liabilities, the Notes, any
Hedge Agreement, this Agreement, or any other Financing Document
and, as to Hedge Agreements, any and all amounts owing or to be
owing by the Company thereunder to any Secured Affiliate.
"Lending Office" shall mean for each Lender the office
specified opposite such Lender's name on the signature pages
hereof, or in the Assignment and Acceptance pursuant to which it
became a Lender, with respect to each Type of Loan, or such other
office as such Lender may designate in writing from time to time
to the Company and the Administrative Agent with respect to such
Type of Loan.
"Letters of Credit" shall have the meaning assigned
such term in Section 2.3(a) and shall include the Outstanding
Letters of Credit, which are hereby deemed to be issued under
this Agreement.
"Letter of Credit Liabilities" shall mean, at any time
and in respect of any Letter of Credit, the sum of (a) the amount
available for drawings under such Letter of Credit as of the date
of determination plus (b) the aggregate unpaid amount of all
Reimbursement Obligations due and payable as of the date of
determination in respect of previous drawings made under such
Letter of Credit.
"Lien" shall mean any interest in Property securing an
obligation owed to, or a claim by, a Person other than the owner
of the Property, whether such interest is based on contract or
constitutional, common law, or statutory law, and including but
not limited to the lien or security interest arising from a
mortgage, encumbrance, pledge, security agreement, conditional
sale or trust receipt or a lease, consignment or bailment for
security purposes. The term "Lien" shall include reservations,
exceptions, encroachments, easements, rights of way, covenants,
conditions, restrictions, liens and other statutory,
constitutional, or common law rights of landlords, leases and
other title exceptions and encumbrances affecting Property. For
the purposes of this Agreement, the Company or any Subsidiary of
the Company shall be deemed to be the owner of any Property which
it has acquired or holds subject to a conditional sale agreement,
financing lease or other arrangement pursuant to which title to
the Property has been retained by or vested in some other Person
for security purposes.
"Limited Liability Interests" shall mean any ownership
interest in capital stock of a corporation, any Equity in another
Person, or any Indebtedness of a corporation or other Person, the
ownership of which stock, other interest or Indebtedness, as a
matter of applicable law, can impose no personal liability on the
owner thereof for any debts, obligations or liabilities
whatsoever of such corporation or Person.
"Loan" shall mean a Revolving Credit Loan or a Term
Loan and "Loans" shall mean collectively the Revolving Credit
Loans or the Term Loans or one or more of them as provided
herein.
"Margin Stock" shall have the meaning provided in
Regulations G, U and X.
"Material Adverse Effect" shall mean any material and
adverse effect on (a) the business operations, assets,
liabilities, condition (financial or otherwise), prospects or
results of operations of the Company and its Subsidiaries, or the
Company and the Subsidiary Guarantors, taken as a whole, or (b)
the ability of the Company to perform its obligations under this
Agreement.
14
"Material Contract" shall mean each contract, license
and agreement listed on Schedule 4.23.
"Maximum Available Amount" shall mean, at any date, an
amount equal to the aggregate Revolving Credit Commitments as of
such date.
"Merger" shall have the meaning provided in
Introductory Statement.
"Merger Agreement" shall mean the Agreement and Plan
of Merger, among KAC, Acquisition Co. and PM Holdings, dated as
of January 9, 1998.
"Multiemployer Plan" shall mean a multiemployer plan
as defined in section 3(37) or 4001(a)(3) of ERISA which is, or
within the six preceding calendar years was, contributed to by
the Company, a Subsidiary of the Company or an ERISA Affiliate.
"Net Proceeds" shall mean, (a) in connection with any
Asset Sale, the HQ Sale/Leaseback or any Recovery Event, the
proceeds thereof in the form of cash and investments of the type
listed in Subsections 6.6(b) through 6.6(e) (including any such
proceeds received by way of deferred payment of principal
pursuant to a note or installment receivable or purchase price
adjustment receivable or otherwise, but only as and when
received) of such Asset Sale, HQ Sale/Leaseback or Recovery
Event, net of attorneys' fees, accountants' fees, investment
banking fees, survey costs, title insurance premiums, amounts
required to be applied to the repayment of the Indebtedness
secured by a Lien expressly permitted hereunder on any asset
which is the subject of such Asset Sale, HQ Sale/Leaseback or
Recovery Event (other than any Lien pursuant to a Security
Instrument) and other customary fees and expenses actually
incurred in connection therewith, net of taxes paid or reasonably
estimated to be payable as a result thereof (after taking into
account any available tax credits or deductions and any tax
sharing arrangements) and that of purchase price adjustments
reasonably expected to be payable in connection therewith, and
(b) in connection with any issuance or sale of equity securities
or debt securities or instruments or the incurrence of loans, the
cash proceeds receipts from such issuance or incurrence, net of
attorneys' fees, investment banking fees, accountants' fees,
underwriting discounts and commissions and other customary fees
and expenses actually incurred in connection therewith.
"Non-Recourse Debt" shall mean Indebtedness or that
portion of Indebtedness as to which neither the Company nor any
of the Subsidiary Guarantors (a) provides credit support pursuant
to any undertaking, agreement or instrument, except for Standard
Securitization Undertakings that would constitute Indebtedness
and Sales Enhancement Guarantees to the extent permitted by
Section 6.2, (b) is directly or indirectly liable, or (c)
constitutes the lender.
"Notes" shall mean the Revolving Credit Notes and the
Term Notes.
"Other Sales Enhancement Loans" shall mean Sales
Enhancement Loans in excess of the amount of such loans permitted
pursuant to Section 6.6(k)(1) and not to exceed the amount
permitted pursuant to Section 6.2(m).
"Other Taxes" shall mean any and all present or future
stamp or documentary taxes or any other excise or property taxes,
charges or similar levies arising from any payment made hereunder
or from the execution, delivery or enforcement of, or otherwise
with respect to, this Agreement.
15
"Outstanding Letter of Credit" shall mean any of the
outstanding letters of credit issued for the account of the
Company, and identified on Schedule 1.1A.
"Payment Office" shall mean the Administrative Agent's
office located at 0000 Xxxxxx Xxxxxx, 9th Floor, Mail Station 46,
Xxxxxxx, Xxxxx 00000; Attention: Xxxx Xxxxxxx (or such other
office or individual as the Administrative Agent may hereafter
designate in writing to the other parties hereto).
"PBGC" shall mean the Pension Benefit Guaranty
Corporation, or any successor thereto.
"Permitted Securitization" shall mean securitizations
by the Company or the Subsidiary Guarantors of Sales Enhancement
Loans on a non-recourse basis pursuant to which (a) the
Disposition of such Sales Enhancement Loans by the Company or the
Subsidiary Guarantors shall constitute a "sale," both legally and
for accounting purposes, and (b) any Indebtedness incurred in
connection therewith constitutes Non-Recourse Debt.
"Person" shall mean any individual, partnership, firm,
corporation (including, but not limited to the Company), limited
liability company, association, joint venture, trust or other
entity, or any government or political subdivision or agency,
department or instrumentality thereof; provided, however, for the
purpose of the definition of "Change of Control," "Person" shall
mean a "person" or group of persons within the meaning of
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934,
as amended.
"Plan" shall mean each Benefit Plan and Multiemployer
Plan.
"PM Holdings" shall have the meaning provided in the
Introductory Statement.
"PM Holdings Guaranty" shall mean the PM Holdings
Guaranty executed by PM Holdings pursuant to the terms hereof
guaranteeing the payment and performance of the Lender
Indebtedness, substantially in the form of Exhibit E-4.
"PM Holdings Pledge Agreement" shall mean the PM
Holdings Pledge Agreement executed by PM Holdings pursuant to the
terms hereof securing its obligations under the PM Holdings
Guaranty, substantially in the form of Exhibit F-2.
"Prime Rate" shall mean the rate which the
Administrative Agent announces from time to time as its prime
rate, effective as of the date announced as the effective date of
any change in such prime rate. Without notice to the Company or
any other Person, the Prime Rate shall change automatically from
time to time as and in the amount by which such prime rate shall
fluctuate. The Prime Rate is a reference rate and does not
necessarily represent the lowest or best rate actually charged to
any customer. The Administrative Agent may make commercial loans
or other loans at rates of interest at, above or below the Prime
Rate.
"Property" shall mean any interest in any kind of
property or asset, whether real, personal or mixed, or tangible
or intangible.
"Quarterly Dates" shall mean the last day of each
March, June, September and December in each year.
16
"Rabobank Cash Collateral Account" shall mean that
certain cash collateral account established as security for the
Rabobank Limited Guaranty.
"Rabobank Limited Guaranty" shall mean that certain
Limited Guaranty dated as of August 1, 1995, by and between the
Company and Rabobank Nederland, whereby the Company has
guaranteed the obligations of Purina Ag Capital pursuant to a
Letter of Credit Reimbursement Agreement between Purina Ag
Capital and Rabobank Nederland, subject to certain limitations
set forth therein, together with any amendments thereto copies of
which have been provided to the Lenders prior to the Closing Date
and any other amendments approved by the Required Lenders in
accordance with, or otherwise permitted by, Section 6.18.
"Rabobank Nederland" shall mean Cooperative Centrale
Raiffeisen--Boerleenbank B.A., New York Branch.
"Xxxxxxx Indemnity" shall mean the indemnification
obligations of the Xxxxxxx Parties in favor of BP North America
Inc., BP Nutrition Inc. and BP Nutrition (Intermediate Holdings)
Inc. as set forth in that certain Stock Purchase Agreement dated
as of October 1, 1986, among BP North America Inc., BP Nutrition
Inc., BP Nutrition (Intermediate Holdings) Inc. and the Xxxxxxx
Parties.
"Xxxxxxx Parties" shall mean collectively, Xxxxxxx
Purina Company, a Missouri corporation, and Xxxxxxx Purina
International, Inc., a Delaware corporation.
"Recovery Event" shall mean any settlement of or
payment in respect of any property insurance or casualty
insurance claim or any condemnation proceeding relating to any
Property of the Company or any of its Subsidiaries, excluding any
such settlement or payment which, together with any related
settlement or payment, yields gross proceeds to the Company or
any of its Subsidiaries of less than $350,000.
"Register" shall have the meaning provided in Section
9.7(d).
"Regulation D", "Regulations G, U and X" shall mean,
respectively, Regulation D under the Securities Act of 1933, as
amended or modified from time to time, and Regulation G,
Regulation U and Regulation X of the Board of Governors of the
Federal Reserve System, as such regulations are from time to time
in effect and any successor regulations thereto.
"Reimbursement Obligations" shall mean, at any date,
the obligations of the Company then outstanding in respect of the
Letters of Credit to reimburse the Administrative Agent for the
account of the Issuing Bank for the amount paid by the Issuing
Bank in respect of any drawings under the Letters of Credit.
"Reinvestment Deferred Amount" shall mean, with
respect to any Reinvestment Event, the aggregate Net Proceeds
received by the Company or any of its Subsidiaries in connection
therewith which are not applied to prepay the Term Loans pursuant
to Section 2.10(b) as a result of the delivery of a Reinvestment
Notice.
"Reinvestment Event" shall mean any Asset Sale or
Recovery Event in respect of which the Company has delivered a
Reinvestment Notice.
17
"Reinvestment Notice" shall mean a written notice
executed by a Responsible Officer stating that no Event of
Default has occurred and is continuing and that the Company
(directly or indirectly through a Subsidiary) intends and expects
to use all or a specified portion of the Net Proceeds of an Asset
Sale or Recovery Event to acquire or construct assets useful in
its business.
"Reinvestment Prepayment Amount" shall mean with
respect to any Reinvestment Event, the Reinvestment Deferred
Amount relating thereto less any amount expended prior to the
relevant Reinvestment Prepayment Date to acquire or construct
assets useful in the Company's business.
"Reinvestment Prepayment Date" shall mean with respect
to any Reinvestment Event, the earlier of (a) the date occurring
nine months after the Reinvestment Event and (b) the date on
which the Company shall have determined not to, or shall have
otherwise ceased to, acquire or construct assets useful in the
Company's business with all or any portion of the relevant
Reimbursement Deferred Amount.
"Required Lenders" shall mean at any time, Lenders the
Total Credit Percentages of which aggregate 50% or more.
"Responsible Officer" shall mean, with respect to any
corporation, the chairman of the board, the president, any vice
president, the chief executive officer or the chief operating
officer, or any equivalent officer (regardless of his or her
title), and, in respect of financial or accounting matters, the
chief financial officer, the vice president of finance, the
treasurer, the controller, or any equivalent officer (regardless
of his or her title). Unless otherwise specified, all references
to a Responsible Officer herein shall mean a Responsible Officer
of the Company.
"Revolving Credit Commitment" shall have the meaning
provided in Section 2.1(c).
"Revolving Credit Exposure" shall mean, at any time
and as to each Lender, the sum of (a) the aggregate principal
amount of the Revolving Credit Loans made by such Lender
outstanding as of such date plus (b) such Lender's Revolving
Credit Percentage of the aggregate amount of all Letter of Credit
Liabilities as of such date.
"Revolving Credit Lender" shall mean any Lender having
a Revolving Credit Commitment or Revolving Credit Exposure
hereunder.
"Revolving Credit Loan" shall have the meaning
provided in Section 2.1(a)(3); the Revolving Credit Loans shall
not include any Letter of Credit Liabilities.
"Revolving Credit Maturity Date" shall mean March 12,
2005, or such earlier date on which the Revolving Credit Loans
become due and payable pursuant to Section 2.9 or Article 7.
"Revolving Credit Note" shall mean a promissory note
of the Company described in Section 2.5(a) payable to any Lender
and being substantially in the form of Exhibit A, evidencing the
aggregate Indebtedness of the Company to such Lender resulting
from Revolving Credit Loans made by such Lender.
"Revolving Credit Percentage" shall mean as to any
Revolving Credit Lender, the percentage of the aggregate
Revolving Credit Commitments constituted by its Revolving Credit
Commitment (or, if the
18
Revolving Credit Commitments have terminated or expired, the
percentage which such Lender's Revolving Credit Exposure at
such time constitutes of the Aggregate Revolving Credit Exposure
at such time).
"Rolling Period" shall mean for each Fiscal Quarter
commencing with the first full Fiscal Quarter after the Closing
Date, such quarter and the three preceding Fiscal Quarters.
"Sales Enhancement Guarantees" shall mean any
Guarantee Obligations of the Company or the Subsidiary Guarantors
(a) of Indebtedness of (i) their customers, including, without
limitation, animal feed and nutrition products dealers and animal
producers, which Indebtedness was incurred to finance capital
expenditures of such customers for fixed assets or to provide
working capital to such customers, or (ii) any Unrestricted
Subsidiary, and (b) incurred in the ordinary course of business
and in connection with the Company's business strategy to
increase sales of animal feed and nutrition products.
"Sales Enhancement Loans" shall mean loans made by the
Company or any Subsidiary Guarantor (a) to (i) their customers,
including, without limitation, animal feed and nutrition products
dealers and animal producers, to finance capital expenditures of
such customers for fixed assets or to provide working capital to
such customers, (ii) any Unrestricted Subsidiary, and (b) in the
ordinary course of business and in connection with the Company's
business strategy to increase sales of animal feed and nutrition
products.
"Scheduled Principal Payments" shall mean, for any
period, the amounts of scheduled principal payments made during
such period (with respect to the Term Loans, as such scheduled
principal payments may be reduced by prepayments from time to
time pursuant to Section 2.10) with respect to Funded
Indebtedness (including the principal portion of all Capital
Lease Obligations) not including any principal payments of
Revolving Credit Loans.
"Secured Affiliate" shall mean any Affiliate of any
Lender that has entered into a Hedge Agreement with the Company
or any of its Subsidiaries with the obligations of the Company or
such Subsidiary thereunder being secured by one or more Security
Instruments.
"Security Instruments" shall mean the Guarantee and
Collateral Agreement, the PM Holdings Pledge Agreement, the Deeds
of Trust, the Cash Collateral Account Agreement, and any and all
other agreements or instruments now or hereafter executed and
delivered by PM Holdings, the Company, any Subsidiary of the
Company or any other Person as security for the payment or
performance of the Lender Indebtedness, as any of the foregoing
may be amended, modified or supplemented.
"Senior Subordinated Notes" shall mean the senior
subordinated notes issued pursuant to the Senior Subordinated
Notes Indenture in an amount of up to $350,000,000 issued by the
Company in connection with the debt financing for the Merger.
"Senior Subordinated Notes Indenture" shall mean the
Indenture, dated as of March 12, 1998, between the Company and
The First National Bank of Chicago, as Trustee, relating to the
Company's 9.0% Senior Subordinated Notes Due 2010.
"Solvent" shall mean with respect to any Person on a
particular date, the condition that, on such date, (a) the fair
value of the Property of such Person is greater than the total
amount of liabilities, including, without limitation, contingent
liabilities, of such Person, (b) the present fair salable value
of the assets of such Person is not less than the amount that
will be required to pay the probable liability of such
19
Person on its debts as they become absolute and matured, (c) such
Person does not intend to, and does not believe that it will,
incur debts or liabilities beyond such Person's ability to pay as
such debts and liabilities mature, and (d) such Person is not
engaged in business or a transaction, and is not about to engage
in business or a transaction, for which such Person's Property
would constitute an unreasonably small amount of capital.
"Special Purpose Vehicle" shall mean a trust,
partnership or other special purpose Person established solely to
implement a Permitted Securitization.
"Standard Securitization Undertakings" shall mean any
representations, warranties, covenants and indemnities entered
into by the Company or a Subsidiary Guarantor in connection with
a Permitted Securitization which are customary in securitization
transactions similar to a Permitted Securitization.
"Statutory Reserves" shall mean a fraction (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 applicable reserve percentages, including any marginal,
special, emergency or supplemental reserves (expressed as a
decimal) established by the Board of Governors of the Federal
Reserve System and any other banking authority to which the
Lenders are subject for Eurocurrency Liabilities (as defined in
Regulation D) or any other category of deposits or liabilities by
reference to which the Eurodollar Rate is determined. Such
reserve percentages shall include those imposed pursuant to
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 that may be available from time to time to
any Lender under such Regulation D. Statutory Reserves shall be
adjusted automatically on and as of the effective date of any
change in any reserve percentage.
"Subsidiary" shall mean, with respect to any Person,
(a) any corporation or any other Person 50% or more of the Equity
of which is at the time directly or indirectly owned by such
Person, by such Person and one or more other Subsidiaries of such
Person, or by one or more other Subsidiaries of such Person, (b)
any partnership or joint venture 50% or more of the Equity of
which is at the time directly or indirectly owned by such Person,
such Person and one or more other Subsidiaries of such Person, or
one or more other Subsidiaries of such Person, and (c) any
limited liability company of which such Person, such Person and
one or more other Subsidiaries of such Person, or one or more
other Subsidiaries of such Person (1) is a managing member or (2)
directly or indirectly owns 50% or more of the Equity.
"Subsidiary Guarantors" shall mean any wholly-owned
Subsidiary of the Company other than an Unrestricted Subsidiary,
including, without limitation, those Subsidiaries designated as
Subsidiary Guarantors on Schedule 4.19 as of the Closing Date,
and any other wholly-owned Subsidiaries of the Company that
become Subsidiary Guarantors pursuant to Section 5.1(i).
"Tax Sharing Agreements" shall mean the Tax Sharing
Agreements substantially in the form of Exhibit C, dated as of
the Closing Date, executed (a) between PM Holdings, the Company
and the Company's Subsidiaries, and (b) between PM Holdings and
Xxxx Industries.
"Taxes" shall mean any and all present or future
taxes, levies, imposts, duties, deductions, charges or
withholdings imposed by any Governmental Authority.
20
"Term Loan" shall mean a Tranche A Term Loan or a
Tranche B Term Loan, as the context shall require; collectively,
the "Term Loans".
"Term Loan Commitments" shall mean as to any Lender,
its Tranche A Term Loan Commitment and Tranche B Term Loan
Commitment.
"Term Loan Lender" shall mean any Tranche A Term Loan
Lender or Tranche B Term Loan Lender.
"Term Note" shall mean a Tranche A Term Note or a
Tranche B Term Note, as the context shall require; collectively
the "Term Notes".
"Three-Month Secondary CD Rate" shall mean, for any
day, the secondary rate (adjusted to the basis of a year of 365
or 366 days, as the case may be) 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 next preceding Business Day) by
the Board of Governors of the Federal Reserve System (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 the 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 Day)
by the Administrative Agent from three New York City negotiable
certificate of deposit dealers of recognized standing selected by
the Administrative Agent.
"Total Credit Percentage" shall mean, as to any Lender
at any time, the percentage of the aggregate Revolving Credit
Commitments, aggregate Tranche A Term Loan Commitments and
aggregate Tranche B Term Loan Commitments then constituted by
such Lender's Revolving Credit Commitment, Tranche A Term Loan
Commitment and Tranche B Term Loan Commitment (it being agreed
that upon termination or expiration of the Revolving Credit
Commitments, or, as to the Tranche A Term Loan Commitments and
the Tranche B Term Loan Commitments, after the Closing Date, the
Total Credit Percentage of any Lenders shall be determined, (i)
in the case of the termination or expiration of the Revolving
Credit Commitments, by reference to the Aggregate Revolving
Credit Exposure of the Revolving Credit Lenders and such Lender's
Revolving Credit Exposure; and (ii) as to the Tranche A Term
Loans or the Tranche B Term Loans, by reference to the aggregate
principal amount of the Tranche A Term Loans or the Tranche B
Term Loans of the Lenders, as the case may be, and the aggregate
principal amount of such Lender's Tranche A Term Loans or Tranche
B Term Loans, as the case may be).
"Tranche A Term Loan" shall have the meaning provided
in Section 2.1(a)(1).
"Tranche A Term Loan Commitment" shall have the
meaning provided in Section 2.1(d).
"Tranche A Term Loan Lender" shall mean any Lender
having a Tranche A Term Loan Commitment hereunder and/or a
Tranche A Term Loan outstanding hereunder.
"Tranche A Term Loan Maturity Date" shall mean March
12, 2005.
"Tranche A Term Loan Percentage" shall mean as to any
Tranche A Term Loan Lender, (a) on the Closing Date, the
percentage which such Lender's Tranche A Term Loan Commitment
then outstanding constitutes of the aggregate Tranche A Term Loan
Commitments then outstanding or, (b) at any
21
time after the Closing Date, the percentage which such Lender's
Tranche A Term Loans then outstanding constitutes of the
aggregate Tranche A Term Loans then outstanding.
"Tranche A Term Note" shall mean a promissory note of
the Company described in Section 2.5(b) payable to a Tranche A
Term Loan Lender and being substantially in the form of Exhibit
B-1, evidencing the aggregate indebtedness of the Company to such
Lender for Tranche A Term Loans.
"Tranche B Term Loan" shall have the meaning provided
in Section 2.1(a)(2).
"Tranche B Term Loan Commitment" shall have the
meaning in Section 2.1(e).
"Tranche B Term Loan Lender" shall mean any Lender
having a Tranche B Term Loan Commitment hereunder and/or a
Tranche B Term Loan outstanding hereunder.
"Tranche B Term Loan Maturity Date" shall mean March
12, 2007.
"Tranche B Term Loan Percentage" shall mean as to any
Tranche B Term Loan Lender, (a) on the Closing Date, the
percentage which such Lender's Tranche B Term Loan Commitment
then outstanding constitutes of the aggregate Tranche B Term Loan
Commitments then outstanding or, (b) at any time after the
Closing Date, the percentage which such Lender's Tranche B Term
Loans then outstanding constitutes of the aggregate Tranche B
Term Loans then outstanding.
"Tranche B Term Note" shall mean a promissory note of
the Company described in Section 2.5(c) payable to a Tranche B
Term Loan Lender and being substantially in the form of Exhibit
B-2, evidencing the aggregate indebtedness of the Company to such
Lender for Tranche B Term Loans.
"Transactions" shall mean the transactions provided
for in and contemplated by this Agreement and the other Financing
Documents.
"Type" of Loan shall mean a Base Rate Loan or
Eurodollar Loan.
"UCC" shall mean the Uniform Commercial Code as from
time to time in effect in the State of New York or, where
applicable as to specific Collateral, any other relevant state.
"Unrestricted Subsidiary" shall mean any Subsidiary of
the Company that meets one or more of the following criteria: (a)
at the time of creation it is designated as an Unrestricted
Subsidiary by the Company (which designation is approved by its
Board of Directors), (b) any Subsidiary which is not wholly-owned
directly by the Company or directly by a Subsidiary Guarantor,
(c) any Subsidiary created or acquired by another Unrestricted
Subsidiary, (d) any Special Purpose Vehicle constituting a
Subsidiary of the Company, provided, that in each case, such
Unrestricted Subsidiary (1) has not acquired any Property from
the Company or any Subsidiary Guarantors, except as specifically
permitted by this Agreement, (2) has no Indebtedness other than
Non-Recourse Debt, (3) does not at any time own any capital
stock, or any warrants, options or other rights to acquire
capital stock, of the Company or any Subsidiary Guarantor and (4)
is not a Subsidiary Guarantor. Notice of any such designation by
the Company shall be delivered by the Company to the
Administrative Agent by promptly filing with the Administrative
Agent a copy of the resolutions of the Board of Directors of the
Company approving such designation and a certificate of a
Responsible Officer certifying that such designation complies
with the requirements of this definition. Such designation shall
become effective upon receipt by the Administrative Agent of the
foregoing. Each
22
Unrestricted Subsidiary designated hereunder shall continue to
be treated as an Unrestricted Subsidiary for purposes of this
Agreement until the Company shall deliver notice to the
Administrative Agent pursuant to and in compliance with
Section 6.17.
"U.S. Subsidiary" shall mean all Subsidiaries of the
Company organized under the laws of any state, territory or
subdivision of the United States.
"Voting Stock" of any Person shall mean the Equity of
such Person which ordinarily has voting power for the election of
directors (or persons performing similar functions) of such
Person, whether at all times or only so long as no senior class
of securities has such voting power by reason of any contingency.
Section 1.2 Accounting Terms and Determinations. Unless
otherwise defined or specified herein, all accounting terms shall
be construed herein, all accounting determinations hereunder
shall be made, all financial statements required to be delivered
hereunder shall be prepared in accordance with GAAP applied on a
basis consistent with the Financial Statements, except for
changes concurred with by the Company's independent public
accountants, provided, that if such changes affect the results of
the calculations of the financial ratios required under Section
6.1 (as compared to the results obtained by applying GAAP in
effect on the Closing Date), the Company and the Administrative
Agent (acting on behalf and at the direction of the Required
Lenders) agree to negotiate in good faith to adjust such
financial ratios in order to make them comparable after giving
effect to such change in GAAP.
Section 1.3 Other Definitional Terms. The words "hereof,"
"herein" and "hereunder" and words of similar import when used in
this Agreement shall refer to this Agreement as a whole and not
to any particular provision of this Agreement, and article,
section, schedule, exhibit and like references are to this
Agreement unless otherwise specified.
ARTICLE 2
AMOUNT AND TERMS OF LOANS
Section 2.1 Loans and Commitments.
(a) Loans. Subject to the terms and conditions and
relying on the representations and warranties contained herein,
(1) each Tranche A Term Loan Lender severally agrees to make, on
the Closing Date, term loans pursuant to its Tranche A Term Loan
Commitment (each a "Tranche A Term Loan") to the Company; (2)
each Tranche B Term Loan Lender severally agrees to make, on the
Closing Date, term loans pursuant to its Tranche B Term Loan
Commitment (each a "Tranche B Term Loan") to the Company; and (3)
on any Business Day from and after the Closing Date, but prior to
the Revolving Credit Maturity Date, each Revolving Credit Lender
severally agrees to make revolving credit loans (each a
"Revolving Credit Loan") to the Company. Except in connection
with a continuation or conversion pursuant to Section 2.11, any
Term Loan that is repaid or prepaid may not be reborrowed.
(b) Types of Loans. The Revolving Credit Loans and the
Term Loans made pursuant hereto by each Lender shall, at the
option of the Company, be either Base Rate Loans or Eurodollar
Loans and may be continued or converted pursuant to Section 2.11,
provided, that except as otherwise specifically provided herein,
all Loans made pursuant to the same Borrowing shall be of the
same Type.
23
(c) Revolving Credit Commitments. Each Revolving
Credit Lender's Revolving Credit Exposure shall not exceed at any
time the amount set forth opposite such Lender's name on Annex I
under the caption "Revolving Credit Commitment" (as the same may
be reduced pursuant to Section 2.9 or otherwise from time to time
modified pursuant to Section 9.7, its "Revolving Credit
Commitment," and collectively for all Revolving Credit Lenders,
the "Revolving Credit Commitments"); provided, however, that the
Aggregate Revolving Credit Exposure at any one time outstanding
shall not exceed the Maximum Available Amount in effect at such
time; and, provided, further, the aggregate principal amount of
all Revolving Credit Loans at any one time outstanding shall not
exceed the difference between (1) the Maximum Available Amount in
effect at such time and (2) the aggregate amount of all Letter of
Credit Liabilities at such time. There may be more than one
Borrowing with respect to Revolving Credit Loans on any day.
Within the foregoing limits and subject to the conditions set out
in Article III, the Company may obtain Borrowings of Revolving
Credit Loans, repay or prepay such Revolving Credit Loans, and
reborrow such Revolving Credit Loans.
(d) Tranche A Term Loan Commitments. The Tranche A
Term Loans made hereunder by each Tranche A Term Loan Lender
shall not exceed in aggregate principal amount outstanding the
amount set forth opposite such Lender's name on Annex I under the
caption "Tranche A Term Loan Commitment" (as the same may be from
time to time modified pursuant to Section 9.7), and the aggregate
principal amount of Tranche A Term Loans outstanding for all
Tranche A Term Loan Lenders shall not exceed the amount set forth
on Annex I under the caption "Tranche A Term Loan Commitments".
Any portion of each such Lender's Tranche A Term Loan Commitment
not utilized on the Closing Date shall be permanently canceled.
(e) Tranche B Term Loan Commitments. The Tranche B
Term Loans made hereunder by each Tranche B Term Loan Lender
shall not exceed in aggregate principal amount outstanding the
amount set forth opposite such Lender's name on Annex I under the
caption "Tranche B Term Loan Commitment" (as the same may be from
time to time modified pursuant to Section 9.7), and the aggregate
principal amount of Tranche B Term Loans outstanding for all
Tranche B Term Loan Lenders shall not exceed the amount set forth
on Annex I under the caption "Tranche B Term Loan Commitments".
Any portion of each such Lender's Tranche B Term Loan Commitment
not utilized on the Closing Date shall be permanently canceled.
(f) Amounts of Borrowings, etc. The aggregate
principal amount of each Borrowing (1) of Eurodollar Loans shall
be not less than $3,000,000 and shall be in an integral multiple
of $100,000, and (2) of Base Rate Loans hereunder shall be not
less than $1,000,000 and shall be in an integral multiple of
$100,000, except that any Borrowing of Revolving Credit Loans
that are Base Rate Loans may be in the aggregate amount of the
unused Maximum Available Amount in effect at such time.
Borrowings of more than one Type may be outstanding at the same
time; provided, however, that the Company shall not be entitled
to request any Borrowing that, if made, would result in an
aggregate of more than eight separate Borrowings of Eurodollar
Loans being outstanding at any one time. For purposes of the
foregoing, Borrowings having different Interest Periods,
regardless of whether they commence on the same date, shall be
considered separate Borrowings.
Section 2.2 Borrowing Requests.
(a) Borrowing Requests. Whenever the Company desires
to make a Borrowing hereunder, it shall give Advance Notice in
the form of a Borrowing Request, specifying, subject to the
provisions hereof, (1) if, but only if, such Borrowing Request is
regarding Loans to be made on the Closing Date, whether such
Borrowing will be Revolving Credit Loans, Tranche A Term Loans or
Tranche B Term
24
Loans, (2) the aggregate principal amount of the Loans to be made
pursuant to such Borrowing, (3) the date of Borrowing (which
shall be a Business Day), (4) whether the Loans being made
pursuant to such Borrowing are to be Base Rate Loans or
Eurodollar Loans, and (5) in the case of Eurodollar Loans, the
Interest Period to be applicable thereto. After the Closing Date,
the Company may deliver Borrowing Requests only for the purpose
of requesting Revolving Credit Loans.
(b) Notice by Administrative Agent. The Administrative
Agent shall promptly give each Applicable Lender telecopy or
telephonic notice (and, in the case of telephonic notices,
confirmed by telecopy or otherwise in writing) of the proposed
Borrowing, of such Lender's Applicable Percentage thereof and of
the other matters covered by the Advance Notice. The Company
hereby waives the right to dispute the Administrative Agent's
record of the terms of such telephonic notice, absent manifest
error.
Section 2.3 Letters of Credit.
(a) Issuance of Letters of Credit. Subject to the
terms and conditions hereof, the Company shall have the right, in
addition to Revolving Credit Loans provided for in Section 2.1,
to utilize the Revolving Credit Commitments from time to time
prior to the Revolving Credit Maturity Date by obtaining the
issuance of letters of credit for the account of the Company by
an Issuing Bank if the Company shall so request in the notice
referred to in Section 2.3(b)(1) (such letters of credit being
collectively referred to as the "Letters of Credit"); provided,
however, that the Aggregate Revolving Credit Exposure at any one
time outstanding shall not exceed the Maximum Available Amount in
effect at such time and the aggregate of all Letter of Credit
Liabilities at any one time outstanding shall not exceed
$40,000,000. The Letters of Credit shall be denominated in
Dollars and may be issued to support the obligations of the
Company or any of the Subsidiary Guarantors. Upon the date of the
issuance of a Letter of Credit, the applicable Issuing Bank shall
be deemed, without further action by any party hereto, to have
sold to each Revolving Credit Lender, and each Revolving Credit
Lender shall be deemed, without further action by any party
hereto, to have purchased from such Issuing Bank, a
participation, to the extent of such Lender's Revolving Credit
Percentage, in such Letter of Credit and the related Letter of
Credit Liabilities. No Letter of Credit issued pursuant to this
Agreement shall have an expiry date that exceeds the date which
is five Business Days prior to the Revolving Credit Maturity
Date. Any Letter of Credit may give the beneficiary thereof the
right to draw upon the Letter of Credit upon its expiry date. The
Company and the Lenders agree that, as of the Closing Date, the
Outstanding Letters of Credit shall for all purposes of this
Agreement be deemed to be Letters of Credit issued under and
pursuant to the terms of this Agreement.
(b) Additional Letter of Credit Provisions. The
following additional provisions shall apply to each Letter of
Credit:
(1) The Company shall give the Administrative
Agent and the Issuing Bank at least five Business Days'
prior notice (effective upon receipt), or in each case,
such shorter period as may be agreed to by the
Administrative Agent and such Issuing Bank, specifying the
date such Letter of Credit is to be issued (which shall be
a Business Day) and the Issuing Bank and describing: (A)
the face amount of the Letter of Credit, (B) the expiration
date of the Letter of Credit, (C) the name and address of
the beneficiary, (D) information concerning the transaction
proposed to be supported by such Letter of Credit as the
Administrative Agent or such Issuing Bank may reasonably
request, (E) such other information and documents relating
to the Letter of Credit as the Administrative Agent or such
Issuing Bank may reasonably request, and (F) a precise
description of documents and the verbatim text of any
certificate to be presented by the beneficiary, which, if
presented prior to the expiry date of the Letter of Credit,
would require such Issuing Bank to make
25
payment under the Letter of Credit, provided, that such
Issuing Bank, in its reasonable judgment, may require
changes in such documents and certificates; and, provided,
further, that no Issuing Bank shall be required to issue
any Letter of Credit that on its terms requires payment
thereunder prior to the next Business Day following receipt
by such Issuing Bank of such documents and certificates.
Each such notice shall be accompanied by the applicable
Issuing Bank's Application and by a certificate executed by
a Responsible Officer setting forth calculations evidencing
availability for such Letter of Credit pursuant to Section
2.3(b)(2) and stating that all conditions precedent to such
issuance have been satisfied. Each Letter of Credit shall,
to the extent not inconsistent with the express terms
hereof or the applicable Application, be subject to the
Uniform Customs and Practice for Documentary Credits (1993
Revision), International Chamber of Commerce Publication
No. 500 (together with any subsequent revisions thereof
approved by a Congress of the International Chamber of
Commerce, the "UCP"), and shall, as to matters not governed
by the UCP, be governed by, and construed and interpreted
in accordance with, the laws of the State of New York.
(2) No Letter of Credit may be issued if after
giving effect thereto the Aggregate Revolving Credit
Exposure would exceed the Maximum Available Amount. On each
day during the period commencing with the issuance of any
Letter of Credit and until such Letter of Credit shall have
expired or have been terminated, the Revolving Credit
Commitment of each Revolving Credit Lender shall be deemed
to be utilized for all purposes hereof in an amount equal
to such Lender's Revolving Credit Percentage of the amount
of the Letter of Credit Liabilities related to such Letter
of Credit.
(3) Upon receipt from the beneficiary of any
Letter of Credit of any demand for payment thereunder, the
Issuing Bank shall promptly notify the Company and the
Administrative Agent of such demand (provided that the
failure of an Issuing Bank to give such notice shall not
affect the Reimbursement Obligations of the Company
hereunder) and the Company shall immediately, and in any
event no later than 11:00 a.m. (Houston, Texas time) on the
date of such drawing, reimburse the Administrative Agent
for the account of the applicable Issuing Bank for any
amount paid by the Issuing Bank upon any drawing under any
Letter of Credit, without presentment, demand, protest or
other formalities of any kind in an amount, in same day
funds, equal to the amount of such drawing. Unless prior to
11:00 a.m. (Houston, Texas time) on the date of such
drawing, the Company shall have either notified the Issuing
Bank and the Administrative Agent that the Company intends
to reimburse the Administrative Agent for the account of
the applicable Issuing Bank for the amount of such drawing
with funds other than the proceeds of Revolving Credit
Loans or delivered to the Administrative Agent a Borrowing
Request for Revolving Credit Loans in an amount equal to
such drawing, the Company will be deemed to have given a
Borrowing Request to the Administrative Agent requesting
that the Revolving Credit Lenders make Revolving Credit
Loans which shall be Base Rate Loans on the date on which
such drawing is honored in an amount equal to the amount of
such drawing, provided, that such Loans shall be subject to
(A) the satisfaction of the conditions in Article 3 and (B)
the existence of Revolving Credit Loan availability
pursuant to Section 2.1(c) hereof (after giving effect to
repayment of the applicable Reimbursement Obligations with
the proceeds of the proposed Revolving Credit Loans).
Subject to the preceding sentence, if so requested by the
Administrative Agent, each of the Revolving Credit Lenders
shall, on the date of such drawing, make such Revolving
Credit Loans in an amount equal to such Lender's Revolving
Credit Percentage of such drawing or the full amount of the
unused Revolving Credit Loan available pursuant to
Section 2.1(c), as applicable, the proceeds of which shall
be applied directly by the Administrative Agent to
reimburse the applicable Issuing Bank to the extent of such
proceeds.
26
(4) If the Company fails to reimburse the
applicable Issuing Bank as provided in clause (3) above for
any reason, including, but not limited to, failure to
satisfy the conditions in Article 3 or insufficient unused
Revolving Credit Loan availability pursuant to Section
2.1(c), such Issuing Bank shall promptly notify the
Administrative Agent and the Administrative Agent shall
notify each Revolving Credit Lender of the unreimbursed
amount of such drawing and of such Lender's respective
participation therein based on such Lender's Revolving
Credit Percentage. Each Revolving Credit Lender will pay to
the Administrative Agent for the account of the applicable
Issuing Bank on the date of such notice an amount equal to
such Lender's Revolving Credit Percentage of such
unreimbursed drawing (or, if such notice is made after 1:00
p.m. (Houston, Texas time) on such date, on the next
succeeding Business Day). If any Revolving Credit Lender
fails to make available to such Issuing Bank the amount of
such Lender's participation in such Letter of Credit as
provided in this clause (4), such Issuing Bank shall be
entitled to recover such amount on demand from such Lender
together with interest at the Federal Funds Effective Rate
for three Business Days and thereafter at the Base Rate.
Nothing in this clause (4) shall be deemed to prejudice the
right of any Revolving Credit Lender to recover from such
Issuing Bank any amounts made available by such Lender to
such Issuing Bank pursuant to this clause (4) if it is
finally judicially determined by a court of competent
jurisdiction that the payment with respect to a Letter of
Credit by such Issuing Bank was wrongful and such wrongful
payment was the result of gross negligence or willful
misconduct on the part of such Issuing Bank. The applicable
Issuing Bank shall promptly pay to the Administrative Agent
and the Administrative Agent to each Revolving Credit
Lender such Lender's Revolving Credit Percentage of all
amounts received from the Company for payment, in whole or
in part, of the Reimbursement Obligation in respect of any
Letter of Credit, but only to the extent such Lender has
made payment to such Issuing Bank in respect of such Letter
of Credit pursuant to this clause (4).
(5) The issuance by the applicable Issuing Bank
of each Letter of Credit shall, in addition to the
conditions precedent set forth in Article 3, be subject to
the conditions precedent that such Letter of Credit shall
be in such form and contain such terms as shall be
reasonably satisfactory to such Issuing Bank, and that the
Company shall have executed and delivered such other
instruments and agreements relating to such Letter of
Credit as such Issuing Bank shall have reasonably requested
and that are not inconsistent with the terms of this
Agreement including the applicable Issuing Bank's
Application therefor. In the event of a conflict between
the terms of this Agreement and the terms of any
Application, the terms of this Agreement shall control.
(6) AS BETWEEN THE COMPANY AND ANY ISSUING BANK,
THE COMPANY ASSUMES ALL RISKS OF THE ACTS AND OMISSIONS OF
OR MISUSE OF THE LETTERS OF CREDIT ISSUED BY SUCH ISSUING
BANK BY THE RESPECTIVE BENEFICIARIES OF SUCH LETTERS OF
CREDIT. IN FURTHERANCE AND NOT IN LIMITATION OF THE
FOREGOING, SUCH ISSUING BANK SHALL NOT BE RESPONSIBLE: (A)
FOR THE FORM, VALIDITY, SUFFICIENCY, ACCURACY, GENUINENESS
OR LEGAL EFFECT OF ANY DOCUMENT SUBMITTED BY ANY PERSON IN
CONNECTION WITH THE APPLICATION FOR OR ISSUANCE OF SUCH
LETTERS OF CREDIT, EVEN IF IT SHOULD IN FACT PROVE TO BE IN
ANY OR ALL RESPECTS INVALID, INSUFFICIENT, INACCURATE,
FRAUDULENT OR FORGED; (B) FOR THE VALIDITY OR SUFFICIENCY
OF ANY INSTRUMENT TRANSFERRING OR ASSIGNING OR PURPORTING
TO TRANSFER OR ASSIGN ANY SUCH LETTER OF CREDIT OR THE
RIGHTS OR BENEFITS THEREUNDER OR PROCEEDS THEREOF, IN WHOLE
OR IN PART, WHICH MAY PROVE TO BE INVALID OR INEFFECTIVE
FOR ANY REASON; (C) FOR ERRORS, OMISSIONS, INTERRUPTIONS OR
DELAYS IN TRANSMISSION OR DELIVERY OF ANY MESSAGES, BY
MAIL, CABLE, TELEGRAPH, TELEX OR OTHERWISE, WHETHER OR
NOT THEY ARE IN CIPHER; (D) FOR ERRORS IN INTERPRETATION OF
27
TECHNICAL TERMS; (E) FOR ANY LOSS OR DELAY IN THE
TRANSMISSION OR OTHERWISE OF ANY DOCUMENT REQUIRED IN ORDER
TO MAKE A DRAWING UNDER ANY SUCH LETTER OF CREDIT OR OF THE
PROCEEDS THEREOF; (F) FOR THE MISAPPLICATION BY THE
BENEFICIARY OF ANY SUCH LETTER OF CREDIT OF THE PROCEEDS OF
ANY DRAWING UNDER SUCH LETTER OF CREDIT; AND (G) FOR ANY
CONSEQUENCES ARISING FROM CAUSES BEYOND THE CONTROL OF SUCH
ISSUING BANK, INCLUDING, WITHOUT LIMITATION, THE ACTIONS OF
ANY GOVERNMENTAL AUTHORITY. NONE OF THE ABOVE SHALL AFFECT,
IMPAIR, OR PREVENT THE VESTING OF ANY OF SUCH ISSUING
BANK'S RIGHTS OR POWERS HEREUNDER. NOTWITHSTANDING ANYTHING
TO THE CONTRARY CONTAINED IN THIS CLAUSE (6), THE COMPANY
SHALL NOT ASSUME ANY RISK, AND SHALL HAVE NO OBLIGATION TO
INDEMNIFY AN ISSUING BANK, IN RESPECT OF ANY LIABILITY
INCURRED BY SUCH ISSUING BANK ARISING PRIMARILY OUT OF THE
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH ISSUING
BANK, AS FINALLY JUDICIALLY DETERMINED BY A COURT OF
COMPETENT JURISDICTION.
(7) Each Issuing Bank will send to the Company
and the Administrative Agent immediately upon issuance of
any Letter of Credit, or an amendment thereto, a true and
complete copy of such Letter of Credit, or such amendment
thereto. Upon issuance of any Letter of Credit or an
amendment thereto, the Administrative Agent shall promptly
notify each Revolving Credit Lender of the terms of such
Letter of Credit or amendment thereto, the Issuing Bank for
such Letter of Credit or amendment thereto, and of such
Lender's Revolving Credit Percentage of the amount of such
Letter of Credit or amendment thereto, and the Administrative
Agent shall provide to each Revolving Credit Lender a copy
of such Letter of Credit or such amendment thereto. Upon
cancellation or termination of any Letter of Credit, the
Issuing Bank shall promptly notify the Administrative
Agent and the Company, and the Administrative Agent will
then promptly notify each Revolving Credit Lender, of
such cancellation or termination.
(8) The obligation of the Company to reimburse
each Issuing Bank for Reimbursement Obligations with regard
to the Letters of Credit issued by it and the obligations
of the Revolving Credit Lenders under clause (4) shall be
unconditional and irrevocable and shall be paid strictly in
accordance with the terms of this Agreement and under all
circumstances including, without limitation, the following
circumstances:
(A) any lack of validity or enforceability
of any Letter of Credit;
(B) the existence of any claim, set-off,
defense or other right that the Company
may have at any time against a
beneficiary or any transferee of any
Letter of Credit (or any Persons for
whom any such transferee may be
acting), any Lender or any other
Person, whether in connection with this
Agreement, the transactions
contemplated herein or any unrelated
transaction (including any underlying
transaction between the Company or one
of its Subsidiaries and the beneficiary
for which the Letter of Credit was
procured) other than a defense based on
the gross negligence (AS OPPOSED TO
ORDINARY NEGLIGENCE) or willful
misconduct of such Issuing Bank, as
finally judicially determined by a
court of competent jurisdiction;
28
(C) any draft, demand, certificate or any
other document presented under any
Letter of Credit is proved to be
forged, fraudulent, invalid or
insufficient in any respect or any
statement therein is untrue or
inaccurate in any respect;
(D) any adverse change in the condition
(financial or otherwise) of the
Company;
(E) any breach of this Agreement or any
other Financing Document by the
Company, Administrative Agent or any
Lender (other than the applicable
Issuing Bank);
(F) any other circumstance or happening
whatsoever which is similar to any of
the foregoing, provided, that such
other occurrence or happening is not
the result of the gross negligence (AS
OPPOSED TO ORDINARY NEGLIGENCE) or
willful misconduct of such Issuing
Bank, as finally judicially determined
by a court of competent jurisdiction;
or
(G) the fact that a Default shall have
occurred and be continuing.
Section 2.4 Disbursement of Funds.
(a) Availability. No later than 1:00 p.m. (Houston
time) on the date of each Borrowing of a Base Rate Loan, and
11:00 a.m. (Houston time) on the date of each Borrowing of a
Eurodollar Loan, each Lender will make available to the
Administrative Agent such Lender's Applicable Percentage of the
amount (if any) by which the principal amount of the Borrowing
requested to be made on such date by such Lender exceeds the
principal amount of Loans (if any) of such Lender maturing on
such date, in Dollars and in immediately available funds at the
Payment Office. The Administrative Agent will make available to
the Company at the Payment Office the aggregate of the amounts
(if any) so made available by the Lenders by depositing such
amounts, in immediately available funds, to an account of the
Company at the Administrative Agent designated by the Company for
such purpose. To the extent that Revolving Credit Loans mature or
Reimbursement Obligations are due and owing on the date of a
requested Borrowing of Revolving Credit Loans, the Revolving
Credit Lenders shall apply the proceeds of the Revolving Credit
Loans then being made, to the extent thereof, to the repayment of
such maturing Revolving Credit Loans or Reimbursement
Obligations, such Revolving Credit Loans or Reimbursement
Obligations and repayments intended to be a contemporaneous
exchange.
(b) Funds to the Administrative Agent. Unless the
Administrative Agent shall have been notified by any Applicable
Lender prior to the date of a Borrowing that such Lender does not
intend to make available to the Administrative Agent such
Lender's Applicable Percentage of the Borrowing to be made on
such date, the Administrative Agent may assume that such Lender
has made such amount available to the Administrative Agent on
such date, and the Administrative Agent may make available to the
Company a corresponding amount. If such corresponding amount is
not in fact made available to the Administrative Agent by such
Lender on the date of a Borrowing, the Administrative Agent shall
be entitled to recover such corresponding amount on demand from
such Lender together with interest at the Federal Funds Effective
Rate. If such Lender does not pay such corresponding amount
forthwith upon the Administrative Agent's demand therefor, the
Administrative Agent shall promptly notify the Company, and the
Company shall
29
immediately pay such corresponding amount to the Administrative
Agent together with interest at the rate specified for the
Borrowing which includes such amount paid. Nothing in
this Section shall be deemed to relieve any Lender
from its obligation to fulfill its Commitments hereunder or to
prejudice any rights which the Company may have against any
Lender as a result of any default by such Lender hereunder.
(c) Lenders' Responsibilities. No Lender shall be
responsible for any default by any other Lender in its obligation
to make Loans hereunder, and each Lender shall be obligated to
make only such Loans provided to be made by it hereunder,
regardless of the failure of any other Lender to fulfill its
Commitment hereunder.
Section 2.5 Notes and Amortization.
(a) Revolving Credit Notes. If requested by any
Revolving Credit Lender, the Company's obligation to pay the
principal of, and interest on, the Revolving Credit Loans made by
each such Revolving Credit Lender shall be further evidenced by
the Company's issuance, execution and delivery of a Revolving
Credit Note payable to the order of each such Lender in the
amount of such Lender's Revolving Credit Commitment and shall be
dated as of the date of issuance of such Revolving Credit Note.
The principal amount of each Revolving Credit Note shall be
payable on or before the Revolving Credit Maturity Date.
(b) Tranche A Term Notes and Amortization. If
requested by any Tranche A Term Loan Lender, the Company's
obligation to pay the principal of, and interest on, the Tranche
A Term Loans made by each such Tranche A Term Loan Lender shall
be further evidenced by the Company's issuance, execution and
delivery of a Tranche A Term Note payable to the order of each
such Lender in the principal amount of such Lender's Tranche A
Term Loan Commitment (if issued on the Closing Date) or in the
principal amount of such Lender's Tranche A Term Loans (if issued
after the Closing Date), and dated as of the date of issuance of
such Tranche A Term Note. The aggregate principal amount of the
Tranche A Term Loans of all Tranche A Term Loan Lenders shall be
payable in quarterly installments of the amounts set forth below
(in each case, as reduced by the application of any prepayments
pursuant to Section 2.10):
30
Quarterly Date Amount Quarterly Date Amount
-------------- ------ -------------- ------
June 30,1998 $1,250,000.00 March 31, 2002 $3,500,000.00
September 30, 1998 $1,250,000.00 June 30, 2002 $4,250,000.00
December 31, 1998 $1,250,000.00 September 30, 2002 $4,250,000.00
March 31, 1999 $1,250,000.00 December 31, 2002 $4,250,000.00
June 30, 1999 $2,000,000.00 March 31, 2003 $4,250,000.00
September 30, 1999 $2,000,000.00 June 30, 2003 $5,000,000.00
December 31, 1999 $2,000,000.00 September 30, 2003 $5,000,000.00
March 31, 2000 $2,000,000.00 December 31, 2003 $5,000,000.00
June 30, 2000 $2,750,000.00 March 31, 2004 $5,000,000.00
September 30, 2000 $2,750,000.00 June 30, 2004 $6,250,000.00
December 31, 2000 $2,750,000.00 September 30, 2004 $6,250,000.00
March 31, 2001 $2,750,000.00 December 31, 2004 $6,250,000.00
June 30, 2001 $3,500,000.00 March 12, 2005 $6,250,000.00
September 30, 2001 $3,500,000.00
December 31, 2001 $3,500,000.00
The first such quarterly installments shall be payable on June
30, 1998 and the remaining quarterly installments shall be
payable on each Quarterly Date thereafter, with the final
installment in the amount of the aggregate unpaid principal
balance then owing being payable on or before the Tranche A Term
Loan Maturity Date.
(c) Tranche B Term Notes and Amortization. If
requested by any Tranche B Term Loan Lender, the Company's
obligation to pay the principal of, and interest on, the Tranche
B Term Loans made by each such Tranche B Term Loan Lender shall
be further evidenced by the Company's issuance, execution and
delivery of a Tranche B Term Note payable to the order of each
such Lender in the principal amount of such Lender's Tranche B
Term Loan Commitment (if issued on the Closing Date) or in the
principal amount of such Lender's Tranche B Term Loans (if issued
after the Closing Date), and dated as of the date of issuance of
such Tranche B Term Note. The aggregate principal amount of the
Tranche B Term Loans of all Tranche B Term Loan Lenders shall be
payable in quarterly installments in the amounts set forth below
(in each case, as reduced by the application of any prepayments
pursuant to Section 2.10):
31
Quarterly Date Amount Quarterly Date Amount
-------------- ------ -------------- ------
June 30, 1998 $75,000 March 31, 2003 $75,000
September 30, 1998 $75,000 June 30, 2003 $75,000
December 31, 1998 $75,000 September 30, 2003 $75,000
March 31, 1999 $75,000 December 31, 2003 $75,000
June 30, 1999 $75,000 March 30, 2004 $75,000
September 30, 1999 $75,000 June 30, 2004 $75,000
December 31, 1999 $75,000 September 30, 2004 $75,000
March 30, 2000 $75,000 December 31, 2004 $75,000
June 30, 2000 $75,000 March 30, 2005 $75,000
September 30, 2000 $75,000 June 30, 2005 $75,000
December 31, 2000 $75,000 September 30, 2005 $75,000
March 30, 2001 $75,000 December 31, 2005 $75,000
June 30, 2001 $75,000 March 30, 2006 $75,000
September 30, 2001 $75,000 June 30, 2006 $24,400,000
December 31, 2001 $75,000 September 30, 2006 $24,400,000
March 30, 2002 $75,000 December 31, 2006 $24,400,000
June 30, 2002 $75,000 March 12, 2007 $24,400,000
September 30, 2002 $75,000
December 31, 2002 $75,000
The first such quarterly installment shall be payable on June 30,
1998, and the remaining quarterly installments shall be payable
on each Quarterly Date thereafter, with the final installment in
the amount of the aggregate unpaid principal balance then owing
being payable on or before the Tranche B Term Loan Maturity Date.
Section 2.6 Interest. In all cases subject to
Section 9.12:
(a) Base Rate Loans. Subject to Section 2.6(c), the
Company agrees to pay interest in respect of the unpaid principal
amount of each Base Rate Loan from the date thereof until payment
in full thereof at a rate per annum which shall be, for any day,
equal to the sum of the Applicable Margin plus the Base Rate in
effect on such day, but in no event to exceed the Highest Lawful
Rate. The term "Base Rate" shall mean, for any day, the highest
of (1) the Prime Rate in effect on such day, (2) one-half of one
percent (1/2%) plus the Federal Funds Effective Rate in effect
for such day (rounded upwards, if necessary, to the nearest
1/16th of 1%), and (3) one percent (1%) plus the Base CD Rate in
effect on such day, but in no event to exceed the Highest Lawful
Rate. For purposes of this Agreement, any change in the Base Rate
due to a change in the Three-Month Secondary CD Rate, the Federal
Funds Effective Rate, or the Prime Rate shall be effective as of
the opening of business on the effective date of such change in
the Three-Month Secondary CD Rate, the Federal Funds Effective
Rate, or the Prime Rate, as the case may be. If for any reason
the Administrative Agent shall have determined (which
determination shall be conclusive and binding, absent manifest
error) that it is unable to ascertain the Federal Funds Effective
Rate and the Three-Month Secondary CD Rate for any reason,
including but not limited to the inability of the Administrative
Agent to obtain sufficient bids or publications in accordance
with the terms hereof, the Base Rate shall be the Prime Rate
until the circumstances giving rise to such inability no longer
exist.
32
(b) Eurodollar Loans. Subject to Section 2.6(c), the
Company agrees to pay interest in respect of the unpaid principal
amount of each Eurodollar Loan from the date thereof until
payment in full thereof at a rate per annum which shall be the
sum of the relevant Applicable Margin plus the Eurodollar Rate,
but in no event to exceed the Highest Lawful Rate.
(c) Default Interest. If the Company shall default in
the payment of the principal of or interest on any Loan or any
other amount becoming due hereunder or under any Financing
Document, by acceleration or otherwise, the Company shall on
demand from time to time pay interest, to the extent permitted by
law, on such defaulted amount to but excluding the date of actual
payment (after as well as before judgment) at a rate per annum
equal to (1) in the case of any Eurodollar Loan, the rate that
would be applicable under Section 2.6(b) to such Eurodollar Loan,
plus 2% per annum, and (2) in the case of any other amount, the
rate that would be applicable under Section 2.6(a) to a Base Rate
Loan, plus 2% per annum.
(d) Interest Payment Dates. Interest on each Loan
shall accrue from and including the date of such Loan to but
excluding the date of payment in full thereof. Interest on each
Eurodollar Loan shall be payable on the last day of each Interest
Period applicable thereto and, in the case of an Interest Period
in excess of three months, on each day which occurs every three
months after the initial date of such Interest Period, and on any
prepayment (on the amount prepaid), at maturity (whether by
acceleration or otherwise) and, after maturity, on demand.
Interest on each Base Rate Loan shall be payable on each
Quarterly Date, commencing on the first of such days to occur
after such Loan is made, at maturity (whether by acceleration or
otherwise) and, after maturity, on demand.
(e) Notice by the Administrative Agent. The
Administrative Agent, upon determining the Eurodollar Rate for
any Interest Period, shall promptly notify by telecopy or
telephone (in the case of telephonic notices, confirmed by
telecopy or otherwise in writing) or in writing the Company and
the Applicable Lenders.
Section 2.7 Interest Periods. In connection with each
Borrowing of Eurodollar Loans, the Company shall elect an
Interest Period to be applicable to such Borrowing, which
Interest Period shall begin on and include, as the case may be,
the date selected by the Company pursuant to Section 2.2(a), the
conversion date or the date of expiration of the then current
Interest Period applicable thereto, and end on but exclude the
date which is either one, two, three or six months thereafter, as
selected by the Company, provided, that:
(a) Business Days. If any Interest Period would
otherwise expire on a day which is not a Business Day, such
Interest Period shall expire on the next succeeding Business Day,
provided, further, that if any Interest Period (other than in
respect of a Borrowing of Eurodollar Loans the Interest Period of
which is expiring pursuant to Section 2.15(b) hereof) would
otherwise expire on a day which is not a Business Day but is a
day of the month after which no further Business Day occurs in
such month, such Interest Period shall expire on the next
preceding Business Day;
(b) Month End. Any Interest Period which 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, subject to Section
2.7(c) below, end on the last Business Day of a calendar month;
(c) Payment Limitations. No Interest Period shall
extend beyond any date that any principal payment or prepayment
is scheduled to be due unless the aggregate principal amount of
Borrowings which are Borrowings of Base Rate Loans or which have
Interest Periods which will expire on or before such
33
date, less the aggregate amount of any other principal payments
or prepayments due during such Interest Period, is equal to or in
excess of the amount of such principal payment or prepayment; and
(d) Maturity Dates. No Interest Period with regard to
Revolving Credit Loans shall extend beyond the Revolving Credit
Maturity Date, no Interest Period with regard to Tranche A Loans
shall extend beyond the Tranche A Term Loan Maturity Date and no
Interest Period with regard to Tranche B Term Loans shall extend
beyond the Tranche B Term Loan Maturity Date.
Section 2.8 Repayment of Loans.
(a) The Company hereby unconditionally and without
set-off, deduction or counterclaim promises to pay to the
Administrative Agent for the account of (1) each Revolving Credit
Lender, the then unpaid principal amount of each Revolving Credit
Loan of such Lender on the Revolving Credit Maturity Date; (2)
each Tranche A Term Loan Lender, the amounts specified in
Sections 2.5(b) and 2.10(b), respectively, on the dates specified
in Sections 2.5(b) and 2.10(b), respectively (or such earlier
date on which the Tranche A Term Loans become due and payable
pursuant to Article 7); and (3) each Tranche B Term Loan Lender,
the amounts specified in Sections 2.5(c) and 2.10(b),
respectively, on the dates specified in Sections 2.5(c) and
2.10(b), respectively (or such earlier date on which the Tranche
B Term Loans become due and payable pursuant to Article 7). The
Company hereby further agrees to pay, without set-off, deduction
or counterclaim, interest on the unpaid principal amount of the
Loans from time to time outstanding from the date hereof until
payment in full thereof at the rates per annum, and on the dates,
set forth in Section 2.6.
(b) Each Lender shall maintain in accordance with its
usual practice an account or accounts evidencing indebtedness of
the Company to such Lender resulting from each Loan of such
Lender from time to time, including, without limitation, the
amounts of principal and interest payable and paid to such Lender
from time to time under this Agreement.
(c) The Administrative Agent shall maintain the
Register pursuant to Section 9.7(d), and a subaccount therein for
each Lender, in which shall be recorded (1) the amount of each
Loan made hereunder, the Type thereof and each Interest Period,
if any, applicable thereto, (2) the amount of any principal or
interest due and payable or to become due and payable from the
Company to each Lender hereunder, and (3) both the amount of any
sum received by the Administrative Agent hereunder from the
Company and each Lender's Applicable Percentage thereof.
(d) The entries made in the Register and the accounts
of each Lender maintained pursuant to Section 2.8(b) shall, to
the extent permitted by applicable law, be prima facie evidence
of the existence and amounts of the obligations of the Company
therein recorded; provided, however, that the failure of any
Lender or the Administrative Agent to maintain the Register or
any such account, or any error therein, shall not in any manner
affect the obligation of the Company to repay (with applicable
interest) the Loans made to the Company by such Lender in
accordance with the terms of this Agreement.
Section 2.9 Termination or Reduction of Commitments.
(a) Voluntary Termination or Reduction of Revolving
Credit Commitments. The Company may, upon at least three Business
Days' notice to the Administrative Agent, terminate entirely at
any time, or partially reduce from time to time by an aggregate
amount of $5,000,000 or any larger multiple of $1,000,000, the
unused portions of the Revolving Credit Commitments, provided,
that any such reduction
34
shall apply proportionately to the Revolving Credit Commitment of
each Revolving Credit Lender. If the Revolving Credit Commitments
are terminated in their entirety, all accrued commitment fees
with respect thereto shall be payable on the effective date of
such termination.
(b) Mandatory Termination of Revolving Credit
Commitments. At any time the Company becomes obligated to prepay
all or part of the Senior Subordinated Notes, the Revolving
Credit Commitments shall, prior to any prepayment of the Senior
Subordinated Notes, automatically and without notice, terminate,
and the Company shall, prior to any prepayment of the Senior
Subordinated Notes, make any mandatory prepayments required
pursuant to Section 2.10(a).
(c) Term Loan Commitments. Any or all of the Term Loan
Commitments remaining unused shall automatically terminate at
5:00 p.m. (Houston time) on the Closing Date.
Section 2.10 Prepayments.
(a) Mandatory Revolving Credit Prepayments. If at any
time the Aggregate Revolving Credit Exposure is in excess of the
Maximum Available Amount, the Company shall immediately pay to
the Administrative Agent, for the account of the Revolving Credit
Lenders, the amount of such excess to be applied (1) as a
prepayment of the Revolving Credit Loans and Reimbursement
Obligations outstanding and (2) after payment in full of the
Revolving Credit Loans and Reimbursement Obligations outstanding,
as Cover for the Letter of Credit Liabilities in an amount of
such remaining excess. Any such prepayment or Cover shall be
payable or provided in full on the date on which the reduction or
termination of the Commitments pursuant to Section 2.9 becomes
effective.
(b) Mandatory Term Loan Prepayments.
(1) On or before each April 15th, commencing on
April 15, 1999, the Company shall deliver to the
Administrative Agent the Company's calculation of its
Consolidated Excess Cash Flow for the Fiscal Year ended on
the previous December 31st. On the third day after delivery
of the notice provided above, but in no event later than
April 18th, the Company shall prepay (by payment to the
Administrative Agent for distribution to the Term Loan
Lenders as provided below) an aggregate principal amount of
Term Loans equal to 50% of Consolidated Excess Cash Flow
for any Fiscal Year (or other applicable period as provided
above) less the amount of any voluntary prepayments of Term
Loans made by the Company as permitted in Section 2.10(c)
during such Fiscal Year (or other applicable period)
(provided, that other Indebtedness of the Company and its
Subsidiaries has not been used to effect such repayment of
Term Loans).
(2) At any time the Company elects to defease the
Senior Subordinated Notes pursuant to Article VIII of the
Senior Subordinated Notes Indenture or becomes obligated to
prepay all or part of the Senior Subordinated Notes, the
Company shall, prior to any such defeasment or prepayment
of the Senior Subordinated Notes, prepay the Term Loans in
full.
(3) At any time the Company or any Subsidiary
Guarantor shall receive Net Proceeds from a Recovery Event
or Asset Sale then, unless a Reinvestment Notice shall be
delivered in respect thereof, 100% of such Net Proceeds
shall be applied on such date toward the prepayment of Term
Loans, provided, that notwithstanding the foregoing, on
each Reinvestment Prepayment Date, an amount equal to the
Reinvestment Prepayment Amount with respect to the relevant
Recovery Event or Asset Sale shall be applied toward the
prepayment of Term Loans.
35
(4) At any time the Company shall receive Net
Proceeds from an HQ Sale/Leaseback, 100% of such Net
Proceeds shall be applied on such date toward the
prepayment of Term Loans.
(5) At any time PM Holdings shall receive Net
Proceeds from any issuance or sale of debt securities or
instruments, 100% of such Net Proceeds shall be applied on
such date toward the prepayment of the Term Loans.
(6) At any time (i) PM Holdings, the Company or
any Subsidiary Guarantor shall receive Net Proceeds from
any issuance or sale of Equity securities to a Person other
than Xxxx Industries or a wholly-owned Subsidiary of Xxxx
Industries, or (ii) any Unrestricted Subsidiary shall
receive Net Proceeds from any issuance or sale of Equity
securities pursuant to a 144A or public offering, 50% of
such Net Proceeds shall be applied on such date toward the
prepayment of Term Loans.
(7) Prepayments of the Term Loans pursuant to
this Section 2.10(b) shall be applied to the Tranche A Term
Loans and the Tranche B Term Loans (i) pro rata based on
outstanding principal amount thereof at the time of such
prepayment and (ii) pro rata to the respective installments
of principal thereof. Notwithstanding the foregoing, in
respect of any partial prepayment of Term Loans (until such
time as the Tranche A Term Loans have been repaid in full)
pursuant to this Section 2.10(b), any Tranche B Term Loan
Lender may, at its option, irrevocably decline receipt of
its Tranche B Term Loan share of any such prepayment, and,
if such Lender so declines, such share shall be applied as
an additional prepayment of the Tranche A Term Loans and
the other Tranche B Term Loans in accordance with the
immediately preceding sentence, as further adjusted
pursuant to the balance of this Section 2.10(b). In the
case of any prepayment pursuant to clauses (1,) (2), (3),
(4), (5) or (6), the Company shall provide to the
Administrative Agent written notice of such prepayment at
least five Business Days prior to the date such prepayment
is to be made. Any Tranche B Term Loan Lender may notify
the Administrative Agent and the Company of its election to
decline its Tranche B Term Loan share of all such
prepayments, in which event such notice shall be effective
until such Lender notifies the Administrative Agent and the
Company to the contrary. Any Tranche B Term Loan Lender
that wishes to decline receipt of its share of any given
prepayment pursuant to this Section 2.10(b), shall
promptly, and in any event no later than 10:00 a.m.
(Houston, Texas time) on the date following its receipt of
the notice of such prepayment, notify the Company and the
Administrative Agent of such election. Any Tranche B Term
Loan Lender that has not provided notice pursuant to one of
the two preceding sentences prior to such 10:00 a.m.
deadline shall be deemed to have elected to accept such
prepayment. The Administrative Agent shall promptly
provide, to all such accepting Tranche B Term Loan Lenders,
notice of the principal amount of the Tranche B Term Loans
that such Lenders have elected to decline. Any such
accepting Lender may, at its option, irrevocably decline
receipt of its share of any such declined shares of such
prepayment (and shall indicate in such notice whether it
elects to accept or decline receipt of its share of such
prepayment declined by other Lenders pursuant to this
sentence), and, if such Lender so declines, such share
shall be applied as an additional prepayment of the Tranche
A Term Loans and the other Tranche B Term Loans in
accordance with this Section 2.10(b). Any Tranche B Term
Loan Lender that wishes to decline receipt of its share of
such declined shares, shall promptly, and in any event no
later than 10:00 a.m. (Houston, Texas time) on the date
following receipt of the notice from the Administrative
Agent regarding such declined shares, notify the Company
and the Administrative Agent of such election. Any such
accepting Lender that has not
36
provided such notice prior to such 10:00 a.m. deadline
shall be deemed to have elected to accept the full amount
of its share of such prepayment.
(c) Voluntary Prepayments. The Company may, at its
option, at any time and from time to time, prepay the Loans and
the Reimbursement Obligations, in whole or in part, upon giving,
in the case of any Revolving Credit Loan that is a Eurodollar
Loan, or any Term Loan, three Business Days' prior written notice
to the Administrative Agent, and, in the case of any Revolving
Credit Loan that is a Base Rate Loan, prior written notice on the
same Business Day to the Administrative Agent. Such notice shall
specify (1) in the case of any prepayment of Loans, the date and
amount of prepayment and whether the prepayment is (A) of Term
Loans or Revolving Credit Loans, or a combination thereof and (B)
of Eurodollar Loans, Base Rate Loans or a combination thereof,
and, in each case if a combination thereof, the principal amount
allocable to each; and (2) in the case of any prepayment of
Reimbursement Obligations, the date and amount of prepayment, the
identity of the applicable Letter of Credit or Letters of Credit
and the amount allocable to each of such Reimbursement
Obligations. Upon receipt of such notice, the Administrative
Agent shall promptly notify each Applicable Lender of the
contents thereof and of such Lender's Applicable Percentage of
such prepayment. If any such notice is given, the amount
specified in such notice shall be due and payable on the date
specified therein, together with (if a Eurodollar Loan is prepaid
other than at the end of the Interest Period applicable thereto)
any amounts payable pursuant to Section 2.18 and, in the case of
prepayments of the Term Loans only, accrued interest to such date
on the amount prepaid. Prepayments of (i) the Term Loans pursuant
to this Section 2.10(c) shall be applied, first, to the Tranche A
Term Loans and the Tranche B Term Loans (A) pro rata based on
outstanding principal amount thereof at the time of such
prepayment and (B) pro rata to the respective installments of
principal thereof, and (ii) the Revolving Credit Loans and the
Reimbursement Obligations pursuant this Section shall be applied,
first, to payment of the Revolving Credit Loans then outstanding,
second, to payment of any Reimbursement Obligations then
outstanding and, last, to Cover any outstanding Letter of Credit
Liability. Notwithstanding the foregoing, in respect of any
partial prepayment of Term Loans (until such time as the Tranche
A Term Loans have been repaid in full) pursuant to this Section
2.10(c), any Tranche B Term Loan Lender may, at its option,
irrevocably decline receipt of its Tranche B Term Loan share of
any such prepayment, and, if such Lender so declines, such share
shall be applied as an additional prepayment of the Tranche A
Term Loans and the other Tranche B Term Loans in accordance with
the immediately preceding sentence, as further adjusted pursuant
to balance of this Section 2.10(c). Any Tranche B Term Loan
Lender may notify the Administrative Agent and the Company of its
election to decline its Tranche B Term Loan share of all such
prepayments, in which event such notice shall be effective until
such Lender notifies the Administrative Agent and the Company to
the contrary. Any Tranche B Term Loan Lender that wishes to
decline receipt of its share of any given prepayment pursuant to
this Section 2.10(c), shall promptly, and in any event no later
than 10:00 a.m. (Houston, Texas time) on the date following
receipt of its notice of such prepayment, notify the Company and
the Administrative Agent of such election. Any Tranche B Term
Loan Lender that has not provided notice pursuant to one of the
two preceding sentences prior to such 10:00 a.m. deadline shall
be deemed to have elected to accept such prepayment. The
Administrative Agent shall promptly provide, to all such
accepting Tranche B Term Loan Lenders, notice of the principal
amount of the Tranche B Term Loans that such Lenders have elected
to decline. Any such accepting Lender may, at its option,
irrevocably decline receipt of its share of any such declined
shares of such prepayment (and shall indicate in such notice
whether it elects to accept or decline receipt of its share of
such prepayment declined by such other Lenders pursuant to this
sentence), and, if such Lender so declines, such share shall be
applied as an additional prepayment of the Tranche A Term Loans
and the other Tranche B Term Loans in accordance with this
Section 2.10(c). Any Tranche B Term Loan Lender that wishes to
decline receipt of its share of the reallocation of such declined
shares, shall promptly, and in any event no later than 10:00 a.m.
(Houston, Texas time) on the date following receipt of the notice
from the Administrative Agent regarding such
37
declined shares, notify the Company and the Administrative Agent
of such election. Any such accepting Lender that has not provided
such notice prior to such 10:00 a.m. deadline shall be deemed to
have elected to accept the full amount of its share of such
prepayment. Each prepayment of Base Rate Loans shall be in the
minimum principal amount of $1,000,000 and in integral multiples
of $100,000 and each prepayment of Eurodollar Loans shall be in
the minimum principal amount of $3,000,000 and in integral
multiples of $100,000 or, in the case of either Base Rate Loans
or Eurodollar Loans, the aggregate principal balance outstanding
on the Term Loans or on the Revolving Credit Loans and the
Reimbursement Obligations, as applicable.
(d) Notice by Administrative Agent. Upon receipt of a
notice of prepayment pursuant to this Section, the Administrative
Agent shall promptly notify each Applicable Lender of the
contents thereof and of such Lender's ratable share of such
prepayment.
Section 2.11 Continuation and Conversion Options.
(a) Continuation. The Company may elect to continue
all or any part of any Borrowing of Eurodollar Loans beyond the
expiration of the then current Interest Period relating thereto
by giving Advance Notice (which shall be irrevocable) to the
Administrative Agent of such election, specifying the Eurodollar
Loans or portion thereof to be continued and the Interest Period
therefor. In the absence of such a timely and proper election
with regard to Eurodollar Loans, the Company shall be deemed to
have elected to convert such Eurodollar Loans to Base Rate Loans
pursuant to Subsection 2.11(d).
(b) Amount of Continuations. All or part of any
Eurodollar Loans may be continued as provided herein, provided,
that any continuation of such Loans shall not be (as to each
Borrowing of such Loans as continued for an applicable Interest
Period) less than $3,000,000 and shall be in an integral multiple
of $100,000.
(c) Continuation or Conversion Upon Default. If no
Default shall have occurred and be continuing, each Eurodollar
Loan may be continued or converted as provided in this Section.
If a Default shall have occurred and be continuing, the Company
shall not have the option to elect to continue any such
Eurodollar Loan pursuant to Subsection 2.11(a) or to convert Base
Rate Loans to Eurodollar Loans pursuant to Subsection 2.11(e).
(d) Conversion to Base Rate. The Company may elect to
convert any Eurodollar Loan on the last day of the then current
Interest Period relating thereto to a Base Rate Loan by giving
Advance Notice to the Administrative Agent of such election.
(e) Conversion to Eurodollar Rate. The Company may
elect to convert any Base Rate Loan at any time or from time to
time to a Eurodollar Loan by giving Advance Notice (which shall
be irrevocable) to the Administrative Agent of such election,
specifying each Interest Period therefor.
(f) Amounts of Conversions. All or any part of the
outstanding Loans may be converted as provided herein, provided,
that any conversion of such Loans shall not result in a Borrowing
of Eurodollar Loans in an amount less than $1,000,000 and in
integral multiples of $100,000.
38
Section 2.12 Fees.
(a) Revolving Credit Commitments. The Company shall
pay to the Administrative Agent for the account of and
distribution to each Revolving Credit Lender in accordance with
its Revolving Credit Percentage a commitment fee for the period
commencing on the Closing Date, to and including the Revolving
Credit Maturity Date (or such earlier date as the Revolving
Credit Commitments shall have been terminated entirely) computed
at the rate per annum equal to the Applicable Commitment Fee
Percentage on the average daily excess amount of the Revolving
Credit Commitments over the Revolving Credit Exposure. The
commitment fees on the Revolving Credit Commitments shall be
payable in arrears on each Quarterly Date, commencing on the
first Quarterly Date to occur after the Closing Date and on the
Revolving Credit Maturity Date.
(b) Letters of Credit.
(1) As consideration for acting as the Issuing
Bank with respect to any Letter of Credit, the Company will
pay to the applicable Issuing Bank a fee to be agreed upon
between the Company and the applicable Issuing Bank not to
exceed .25% per annum on the daily average amount available
for drawing on the applicable Letter of Credit, payable in
arrears on each Quarterly Date. The Company shall also pay
to the Issuing Bank, with respect to any issuance,
amendment, transfer, or cancellation prior to expiration of
any Letter of Credit and for each drawing made thereunder,
documentary and processing charges in accordance with the
Issuing Bank's standard schedule for such charges in effect
at the time of, and payable at the time of, such issuance,
amendment, transfer, cancellation or drawing, as the case
may be. All fees payable pursuant to this clause (1) shall
be retained by the applicable Issuing Bank.
(2) The Company will pay to the Administrative
Agent for the account of and pro rata distribution to each
Revolving Credit Lender a fee on the daily average amount
available for drawings under each Letter of Credit, in each
case for the period from and including the date of issuance
of such Letter of Credit to and excluding the date of
expiration or termination thereof computed at a per annum
rate for each day equal to the Applicable Margin for
Revolving Credit Loans that are Eurodollar Loans in effect
on such day, payable in arrears on each Quarterly Date.
(c) Administrative Agent Fees. The Company shall pay
to the Administrative Agent such fees as are set forth in the Fee
Letter as the same has been or may be hereafter amended or
supplemented, on the dates and in the manner specified therein.
Section 2.13 Payments, etc.
(a) Without Setoff, etc. Except as otherwise
specifically provided herein, all payments under this Agreement
shall be made to the Administrative Agent on behalf of the
Applicable Lenders without defense, set-off or counterclaim to
the Administrative Agent not later than 11:00 a.m. Houston time
on the date when due and shall be made in Dollars in immediately
available funds at the Payment Office. The Administrative Agent
will promptly thereafter distribute funds in the form received
relating to the payment of principal or interest or commitment
fees ratably to the Applicable Lenders for the account of their
respective Lending Offices, and funds in the form received
relating to the payment of any other amount payable to any Lender
to such Lender for the account of its Lending Office.
39
(b) Non-Business Days. Whenever any payment to be made
hereunder or under any Note shall be stated to be due on a day
which is not a Business Day, the due date thereof shall be
extended to the next succeeding Business Day (except as otherwise
provided in Section 2.7 hereof) and, with respect to payments of
principal, interest thereon shall be payable at the applicable
rate during such extension.
(c) Computations. All computations of interest shall
be made on the basis of a year of 360 days (unless such
calculation would result in a usurious rate, in which case
interest shall be calculated on the basis of a year of 365 or 366
days, as the case may be) in the case of Eurodollar Loans or Base
Rate Loans that are based upon the Federal Funds Effective Rate
or the Base CD Rate, and 365 or 366 days (as the case may be) in
the case of Base Rate Loans that are based upon the Prime Rate,
and all computations of fees shall be made on the basis of a year
of 360 days (unless such calculation would result in a usurious
rate, in which case interest shall be calculated on the basis of
a year of 365 or 366 days, as the case may be), in each case for
the actual number of days (including the first day but excluding
the last day) occurring in the period for which such interest or
fees are payable. Each determination by the Administrative Agent
of an interest rate or fee hereunder shall, except for manifest
error, be final, conclusive and binding for all purposes,
provided, that such determination shall be made in good faith in
a manner generally consistent with the Administrative Agent's
standard practice. If the Administrative Agent and the Company
determine that manifest error exists, said parties shall correct
such error by way of an adjustment to the payment due on the next
Quarterly Date.
Section 2.14 Interest Rate Not Ascertainable, etc. In the
event that the Administrative Agent shall have determined (which
determination shall be reasonably exercised and shall, absent
manifest error, be final, conclusive and binding upon all
parties) that on any date for determining the Eurodollar Rate for
any Interest Period, by reason of any changes arising after the
date of this Agreement affecting the interbank Eurodollar market,
or any Lender's position in such market, adequate and fair means
do not exist for ascertaining the applicable interest rate on the
basis provided for in the definition of Eurodollar Rate, then,
and in any such event, the Administrative Agent shall forthwith
give notice (by telephone confirmed in writing) to the Company
and to the Lenders of such determination. Until the
Administrative Agent notifies the Company that the circumstances
giving rise to the suspension described herein no longer exist,
the obligations of the Lenders to make Eurodollar Loans shall be
immediately suspended; any Borrowing of Eurodollar Loans that is
requested (by continuation, conversion or otherwise) shall
instead be made as a Borrowing of Base Rate Loans, and any
outstanding Eurodollar Loan shall be converted, on the last day
of the then current Interest Period applicable thereto, to a Base
Rate Loan.
Section 2.15 Illegality.
(a) Determinations of Illegality. In the event that
any Lender shall have determined (which determination shall be
reasonably exercised and shall, absent manifest error, be final,
conclusive and binding upon all parties) at any time that the
making or continuance of any Eurodollar Loan has become unlawful
as a result of compliance by such Lender in good faith with any
applicable law, governmental rule, regulation, guideline or order
(whether or not having the force of law and whether or not
failure to comply therewith would be unlawful), then, in any such
event, the Lender shall give prompt notice (by telephone
confirmed in writing) to the Company and to the Administrative
Agent of such determination (which notice the Administrative
Agent shall promptly transmit to the other Lenders).
(b) Eurodollar Loans Suspended. Upon the giving of the
notice to the Company referred to in Subsection (a) above, (1)
the Company's right to request (by continuation, conversion or
otherwise) and such Lender's obligation to make Eurodollar Loans
shall be immediately suspended, and thereafter, any
40
requested Borrowing of Eurodollar Loans shall, as to such Lender
only, be deemed to be a request for a Base Rate Loan, and (2) if
the affected Eurodollar Loan or Loans are then outstanding, the
Company shall immediately, or if permitted by applicable law, no
later than the date permitted thereby, upon at least one Business
Day's written notice to the Administrative Agent and the affected
Lender, convert each such Eurodollar Loan into a Base Rate Loan,
provided, that if more than one Lender is affected at any time,
then all affected Lenders must be treated the same pursuant to
this Subsection.
Section 2.16 Increased Costs.
(a) Eurodollar Regulations, etc. If, by reason of (x)
after the date hereof, the introduction of or any change
(including, but not limited to, any change by way of imposition
or increase of reserve requirements) in or in the interpretation
of any law or regulation, or (y) the compliance with any
guideline or request issued by any central bank or other
Governmental Authority exercising control over banks or financial
institutions generally (whether or not having the force of law):
(1) any Lender (or its applicable Lending Office)
shall be subject to any tax, duty or other charge with
respect to its Eurodollar Loans or its obligation to make
Eurodollar Loans, or shall change the basis of taxation of
payments to any Lender of the principal of or interest on
its Eurodollar Loans or its obligation to make Eurodollar
Loans (except for changes in the rate of tax on the overall
net income or gross receipts of such Lender or its
applicable Lending Office imposed by the jurisdiction in
which such Lender's principal executive office or
applicable Lending Office is located); or
(2) any reserve (including, but not limited to,
any imposed by the Board of Governors of the Federal
Reserve System, but excluding any such reserve requirement
that is reflected in the Eurodollar Rate), special deposit
or similar requirement against assets of, deposits with or
for the account of, or credit extended by, any Lender or
its applicable Lending Office shall be imposed or deemed
applicable or any other condition affecting its Eurodollar
Loans or its obligations to make Eurodollar Loans shall be
imposed on any Lender or its applicable Lending Office or
the interbank Eurodollar market or the secondary
certificate of deposit market;
and as a result thereof there shall be any increase in the cost
to such Lender of agreeing to make or making, funding or
maintaining Eurodollar Loans (except to the extent already
included in the determination of the applicable Eurodollar Rate)
or there shall be a reduction in the amount received or
receivable by such Lender or its applicable Lending Office, then
the Company shall from time to time, upon written notice from and
demand by such Lender (with a copy of such notice and demand to
the Administrative Agent), pay to such Lender on demand,
additional amounts determined by such Lender in a reasonable
manner to be sufficient to indemnify such Lender against such
increased cost. A certificate as to the amount of such increased
cost and the calculation thereof, submitted to the Company and
the Administrative Agent by such Lender, shall, except for
manifest error, be final, conclusive and binding for all
purposes.
(b) Costs. If any Lender shall advise the
Administrative Agent that at any time, because of the
circumstances described in clauses (x) or (y) in Subsection
2.16(a) or any other circumstances affecting such Lender or the
interbank Eurodollar market or such Lender's position in such
market, the Eurodollar Rate, as determined in good faith by the
Administrative Agent, will not adequately and fairly reflect the
cost to such Lender of funding its Eurodollar Loans, then, and in
any such event:
41
(1) the Administrative Agent shall forthwith give
notice (by telephone confirmed in writing) to the Company
and to the Lenders of such advice;
(2) the Company's right to request a Borrowing of
Eurodollar Loans from such Lender and such Lender's
obligation to make Eurodollar Loans shall be immediately
suspended, any such Borrowing of Eurodollar Loans that is
requested (by continuation, conversion or otherwise)
shall, as to such Lender only, be deemed to be a request
for a Base Rate Loan, and any such outstanding Eurodollar
Loan from such Lender shall be converted, on the last day
of the then current Interest Period applicable thereto, to
a Base Rate Loan.
(c) Capital Adequacy. If, by reason of (1) after the
date hereof, the introduction of or any change (including, but
not limited to, any change by way of imposition or increase of
reserve requirements) in or in the interpretation of any law or
regulation, or (2) the compliance with any guideline or request
issued by any central bank or other Governmental Authority
exercising control over banks or financial institutions generally
(whether or not having the force of law), affects or would affect
the amount of capital required to be maintained by any Lender or
any corporation controlling such Lender, and the amount of such
capital is increased by or based upon the existence of such
Lender's Loans or such Lender's Commitment to lend hereunder and
other commitments of this type or of the Letters of Credit (or
similar contingent obligations), then, upon request therefor by
such Lender (with a copy of such request to the Administrative
Agent), the Company shall pay to such Lender, from time to time
as specified by such Lender, additional amounts sufficient to
compensate such Lender for the increased cost of such additional
capital in light of such circumstances, to the extent that such
Lender reasonably determines such increase in capital to be
allocable to the existence of such Lender's Loans or such
Lender's Commitment to lend hereunder or to the issuance or
maintenance of the Letters of Credit. A certificate as to such
amounts and the calculation thereof, submitted to the Company and
the Administrative Agent by such Lender, shall be conclusive and
binding for all purposes, absent manifest error.
(d) Issuing Bank. The rights and benefits of the
Lenders under this Section 2.16 shall also apply to any Issuing
Bank in its capacity as such.
Section 2.17 Change of Lending Office. Each Lender agrees
that it will use reasonable efforts to designate an alternate
Lending Office with respect to any of its Eurodollar Loans
affected by the matters or circumstances described in Sections
2.14, 2.15 or 2.16 to reduce the liability of the Company or
avoid the results provided thereunder, so long as such
designation is not disadvantageous to such Lender as determined
by such Lender in its discretion, provided, that such Lender
shall have no obligation to so designate an alternate Lending
Office located in the United States.
Section 2.18 Funding Losses. The Company shall compensate
each Lender, upon its written request (which request shall set
forth the basis for requesting such amounts and shall, absent
manifest error, be final, conclusive and binding upon all of the
parties hereto), for all losses, expenses and liabilities
(including, but not limited to, any interest paid by such Lender
to lenders of funds borrowed by it to make or carry its
Eurodollar Loans to the extent not recovered by the Lender in
connection with the re-employment of such funds and excluding
loss of anticipated profits), which the Lender may sustain: (a)
if for any reason (other than a default by such Lender) a
Borrowing of Eurodollar Loans does not occur on the date
specified therefor in a Borrowing Request (whether or not
withdrawn), including, but not limited to a failure by the
Company to fulfill on the date of any Borrowing of Eurodollar
Loans the conditions set forth in Article 3, or to convert or
continue any Eurodollar Loan hereunder after irrevocable notice
of such conversion or continuation has been given pursuant to
Section 2.11(b), (b) if any payment, prepayment or conversion of
42
any of its Eurodollar Loans required or permitted by any other
provision of this Agreement or otherwise, or any assignment of a
Eurodollar Loan pursuant to Section 2.22, in each case is made or
deemed made on a date which is not the last day of the Interest
Period applicable thereto, or (c) if, for any reason, the Company
defaults in its obligation to repay its Eurodollar Loans or
interest accrued thereon as and when due and payable (at the due
date thereof, whether at scheduled maturity, by acceleration,
irrevocable notice of prepayment or otherwise).
Section 2.19 Sharing of Payments, etc. If any Lender shall
obtain any payment or reduction (including, but not limited to,
any amounts received as adequate protection of a deposit treated
as cash collateral under the Bankruptcy Code) of any obligation
of the Company hereunder (whether voluntary, involuntary, through
the exercise of any right of set-off, or otherwise) in excess of
its ratable share (determined in accordance with the applicable
provisions hereof) of payments or reductions on account of such
obligations obtained by all the Lenders, such Lender shall
forthwith (a) notify each of the other Lenders and the
Administrative Agent of such receipt, and (b) purchase from the
other Lenders such participations in the affected obligations as
shall be necessary to cause such purchasing Lender to share the
excess payment or reduction, net of costs incurred in connection
therewith, ratably with each of them, provided, that if all or
any portion of such excess payment or reduction is thereafter
recovered from such purchasing Lender or additional costs are
incurred, the purchase shall be rescinded and the purchase price
restored to the extent of such recovery or such additional costs,
but without interest. The Company agrees that any Lender so
purchasing a participation from another Lender pursuant to this
Section may, to the fullest extent permitted by law, exercise all
its rights of payment (including the right of set-off) with
respect to such participation as fully as if such Lender were the
direct creditor of the Company in the amount of such
participation.
Section 2.20 Taxes.
(a) Payments Free and Clear. Any and all payments by
or on account of any obligation of the Company hereunder shall be
made free and clear of and without deduction for any Indemnified
Taxes or Other Taxes, provided, that if the Company shall be
required to deduct any Indemnified Taxes or Other Taxes from such
payments, then (1) the sum payable shall be increased as
necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this
Section) the Administrative Agent, Lender or Issuing Bank (as the
case may be) receives an amount equal to the sum it would have
received had no such deductions been made, (2) the Company shall
make such deductions, and (3) the Company shall pay the full
amount deducted to the relevant Governmental Authority in
accordance with applicable law.
(b) Other Taxes. In addition, the Company shall pay
any Other Taxes to the relevant Governmental Authority in
accordance with applicable law.
(c) Indemnification. The Company shall indemnify the
Administrative Agent, each Lender and each Issuing Bank, upon
written demand therefor, for the full amount of any Indemnified
Taxes or Other Taxes paid by the Administrative Agent, such
Lender or such Issuing Bank, as the case may be, on or with
respect to any payment by or on account of any obligation of the
Company hereunder (including Indemnified Taxes or Other Taxes
imposed or asserted on or attributable to amounts payable under
this Section) and any penalties, interest and reasonable expenses
arising therefrom or with respect thereto, whether or not such
Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability
delivered to the Company by a Lender or an Issuing Bank, or by
the Administrative Agent on its own behalf or on behalf of a
Lender or an Issuing Bank, shall be conclusive absent manifest
error.
43
(d) Receipts. As soon as practicable after any payment
of Indemnified Taxes or Other Taxes by the Company to a
Governmental Authority, the Company shall deliver to the
Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such
payment, a copy of the return reporting such payment or other
evidence of such payment reasonably satisfactory to the
Administrative Agent.
(e) Survival. Without prejudice to the survival of any
other agreement contained herein, the agreements and obligations
contained in this Section 2.20 shall survive the payment in full
of principal and interest hereunder.
(f) Lender Representations and Agreements. As of the
date on which any Lender becomes a party hereto, such Lender
represents that it is either (1) a corporation organized under
the laws of the United States of America or any state thereof,
(2) entitled to complete exemption from United States withholding
tax imposed on or with respect to any payments, including fees,
to be made to it pursuant to this Agreement, or (3) entitled to
complete exemption from United States withholding tax on interest
imposed on or with respect to any payments of interest to be made
pursuant to this Agreement (A) under an applicable provision of a
tax convention to which the United States of America is a party,
(B) because it is acting through a branch, agency or office in
the United States of America and any payment to be received by it
hereunder is effectively connected with a trade or business in
the United States of America, or (C) because it is a recipient of
portfolio interest within the meaning of Section 871(h) or 881(c)
of the Code. Each Lender that is not a corporation organized
under the laws of the United States of America or any state
thereof shall:
(x) provide to the Company and the Administrative
Agent on or before the date of any payment by the
Company hereunder, or on the date of its delivery of
the Assignment and Acceptance pursuant to which it
becomes a Lender, and at such other times as required
by United States law or as the Company or the
Administrative Agent shall reasonably request, two
accurate and complete original signed copies of either
(A) Internal Revenue Service Form 4224 (or successor
form) certifying that all payments to be made to it
hereunder will be effectively connected to a United
States trade or business (the "Form 4224
Certification"), or (B) Internal Revenue Service Form
1001 (or successor form) certifying that it is
entitled to the benefit of a provision of a tax
convention to which the United States of America is a
party which completely exempts from United States
withholding tax all payments to be made to it
hereunder (the "Form 1001 Certification"). In
addition, each Lender agrees that if it previously
filed a Form 4224 Certification it will deliver to the
Company and the Administrative Agent a new Form 4224
Certification prior to the first payment date
occurring in each of its subsequent taxable years (or
such other date as may be required in compliance with
applicable law); and if it previously filed a Form
1001 Certification, it will deliver to the Company and
the Administrative Agent a new certification prior to
the first payment date falling in the third year
following the previous filing of such certification
(or such other date as may be required in compliance
with applicable law); or
(y) in the case of any such Lender that is not a
"bank" within the meaning of Section 881(c)(3)(A) of
the Code, (i) furnish to the Company on or before the
date of any payment by the Company, with a copy to the
Administrative Agent, (A) a certificate substantially
in the form of Exhibit I (any such certificate a "U.S.
Tax Compliance Certificate") and (B) two accurate and
complete original signed copies of Internal Revenue
Service Form W-8, or successor applicable form
certifying to such Lender's legal
44
entitlement at the date of such certificate to an
exemption from U.S. withholding tax under the
provisions of Section 881(c) of the Code with respect
to payments of interest to be made under this
Agreement, any Notes or other Financing Documents (and
to deliver to the Company and the Administrative Agent
two further copies of such form on or before the date
it expires or becomes obsolete and after the
occurrence of any event requiring a change in the most
recently provided form and, if necessary, obtain any
extensions of time reasonably requested by the Company
or the Administrative Agent for filing and completing
such forms) and (ii) agree, to the extent legally
entitled to do so, upon reasonable request by the
Company, to provide to the Company (for the benefit of
the Company and the Administrative Agent) such other
forms as may be reasonably required in order to
establish the legal entitlement of such Lender to an
exemption from withholding with respect to payments of
interest under this Agreement, any Notes or other
Financing Documents, provided that in determining the
reasonableness of a request under this clause (ii)
such Lender shall be entitled to consider the cost (to
the extent unreimbursed by the Company) which would be
imposed on such Lender of complying with such request.
Each Lender also agrees to deliver to the Company and the
Administrative Agent such other or supplemental forms as
may at any time be required as a result of changes in
applicable law or regulation in order to confirm or
maintain in effect its entitlement to exemption from United
States withholding tax on any payments hereunder, provided
that the circumstances of the Lender at the relevant time
and applicable laws permit it to do so. Except as provided
immediately below, if a Lender is organized under the laws
of a jurisdiction outside the United States of America,
unless the Company and the Administrative Agent have
received a Form 1001 Certification, Form 4224
Certification, or an Internal Revenue Service Form W-8 and
a U.S. Tax Compliance Certificate, as applicable,
satisfactory to them indicating that all payments, or in
the case of a Lender providing such forms as are required
under Section 2.20(f)(y) hereof, all payments of interest,
to be made to such Lender hereunder are not subject to
United States withholding tax, the Company shall be
entitled to withhold taxes from such payments at the
applicable statutory rate, provided that such withholding
shall not increase the amount of payments for the account
of such Lender to be made by the Company pursuant to
Subsection 2.20(a). If a Lender determines, as a result of
any change in either (i) applicable law, regulation or
treaty, or in any official application thereof or (ii) its
circumstances, that it is unable to submit any form or
certificate that it is obligated to submit pursuant to this
Section, or that it is required to withdraw or cancel any
such form or certificate previously submitted, it shall
promptly notify the Company and the Administrative Agent of
such fact and the Company shall be entitled to withhold
taxes from such payments at the applicable statutory rate,
it being understood that such withholding shall increase
the amount of payments for the account of such Lender to be
made by the Company pursuant to Section 2.20(a). Each
Lender agrees to indemnify and hold the Administrative
Agent harmless from any United States taxes, penalties,
interest and other expenses, costs and losses incurred or
payable by the Administrative Agent (i) as a result of such
Lender's failure to submit any form or certificate that it
is required to provide pursuant to this Section or (ii) as
a result of the Administrative Agent's reliance on any such
form or certificate which such Lender has provided to it
pursuant to this Section. Each Person that shall become a
Lender or a Participant pursuant to Section 9.7 shall, upon
the effectiveness of the related transfer, be required to
provide all of the forms, certifications and statements
required pursuant to this Section, provided that in the
case of a Participant the obligations of such Participant
were it a Lender except that such Participant shall furnish
all such required forms, certifications and statements to
the Lender from which the related participation shall have
been purchased.
45
Section 2.21 Pro Rata Treatment. Subject to Section 2.4(b),
each Borrowing of Revolving Credit Loans shall be made, each
payment on account of any commitment fee in respect of the
Revolving Credit Commitments hereunder shall be allocated by the
Administrative Agent, and any reduction of the Revolving Credit
Commitments of the Lenders shall be allocated by the
Administrative Agent, pro rata according to the relevant
Revolving Credit Percentages of the Lenders. Subject to Section
2.4(b), each payment (including each prepayment) on account of
principal of and interest on any Revolving Credit Loans shall be
allocated by the Administrative Agent pro rata according to the
respective outstanding principal amounts of such Revolving Credit
Loans then held by the Revolving Credit Lenders. Except as
otherwise provided in Sections 2.10(b) and 2.10(c), each payment
on account of principal of and interest on any Term Loans shall
be allocated by the Administrative Agent pro rata according to
the respective outstanding principal amounts of such Term Loans
then held by the Term Loan Lenders. All proceeds (including
proceeds from the realization upon the Collateral) received after
acceleration of the maturity of the Loans, shall be applied first
to reimbursement of expenses and indemnities provided for in this
Agreement and the Financing Documents; second, to other Lender
Indebtedness (including, without limitation, Letter of Credit
Liabilities) until repaid in full pro rata to each Lender in
accordance with its Total Credit Percentage; and, third, to any
other Person entitled to receive such proceeds in accordance with
applicable law.
Section 2.22 Replacement of Lenders. If any Lender does not
make a Eurodollar Loan pursuant to Section 2.15, is subject to
increased costs pursuant to Section 2.16, fails to designate an
alternate Lending Office pursuant to Section 2.17, or is owed or
reasonably anticipates being owed additional amounts pursuant to
Section 2.20 and fails to take action required under Subsection
2.20(f) to avoid or reduce any such additional amounts, the
Company shall have the right, if no Default then exists, to
replace such Lender with another bank or financial institution
with the consent of the Administrative Agent, which consent shall
not be unreasonably withheld, provided, that (a) all obligations
of the Company owing to the Lender being replaced (including such
increased costs) that are not being assigned to the replacement
lender shall be paid in full to the Lender being replaced
concurrently with such replacement, (b) the replacement lender
shall execute an Assignment and Acceptance pursuant to which it
shall become a party hereto as provided in Section 9.7(c), and
(c) upon compliance with the provisions for assignment provided
in Section 9.7(c) and the payment of amounts referred to in
clause (a), the replacement lender shall constitute a "Lender"
hereunder and the Lender being so replaced shall no longer
constitute a "Lender" hereunder.
ARTICLE 3
CONDITIONS TO BORROWINGS
Section 3.1 Conditions Precedent to Initial Loan and Letter
of Credit. The obligation of each Applicable Lender to make a
Revolving Credit Loan, each Applicable Lender to maintain its
Term Loans or an Issuing Bank to issue a Letter of Credit
hereunder is subject to (x) the receipt by the Administrative
Agent of the following items and (y) the satisfaction (or waiver
by all of the Lenders) of the following conditions:
(a) Notes. A duly completed and executed Note for each
Lender requesting the same in each case dated as of the
Closing Date and made payable to the order of such Lender.
(b) Resolutions and Incumbency Certificates.
(1) certified copies of the resolutions of the
Boards of Directors (or consents of members or
partners, if applicable) of the Company, PM Holdings,
and any of the
46
Company's Subsidiaries that are parties to any
Financing Document, dated, as to the Company,
as of the Closing Date, and as to PM Holdings and the
Company's Subsidiaries, as of the Closing Date, and
approving, as appropriate, the Loans, the Notes, this
Agreement and the other Financing Documents, and all
other documents, if any, to which the Company, PM
Holdings or such Subsidiary is a party and evidencing
corporate authorization (or other appropriate legal
authorization) with respect to such documents; and
(2) a certificate of the Secretary or an
Assistant Secretary of the Company, PM Holdings and
any of the Company's Subsidiaries that are parties to
any Financing Document dated as of the Closing Date,
and certifying (A) the name, title and true signature
of each officer of such Person authorized to execute
the Notes, this Agreement, Applications and the other
Financing Documents to which it is a party, (B) the
name, title and true signature of each officer of such
Person authorized to provide the certifications
required pursuant to this Agreement including, but not
limited to, certifications required pursuant to
Section 5.2 and Borrowing Requests, and (C) that
attached thereto are true and complete copies of the
certificates of incorporation and bylaws (or other
applicable organizational documents) of such Person,
as amended to date, and recent good standing and
existence certificates in each jurisdiction where such
Person has operations.
(c) Opinions of Counsel. The following opinions of
counsel, in each case addressed to the Administrative
Agent, the Issuing Banks and the Lenders and covering such
other matters as any Administrative Agent, any Issuing Bank
or the Lenders may reasonably request:
(1) August X. Xxxxxxxx, General Counsel of PM
Holdings and the Company dated as of the Closing Date
and substantially in the form of Exhibit E-1 hereto;
(2) Cleary, Gottlieb, Xxxxx & Xxxxxxxx, special
New York counsel to PM Holdings, the Company and the
Subsidiary Guarantors dated as of the Closing Date,
substantially in the form of Exhibit E-2; and
(3) Local counsel to the Lenders dated as of the
Closing Date, substantially in the form of Exhibit E-3
and opining as to the laws of the States in which any
of the real Property listed on Schedule 4.25 is
located with such changes, exceptions and assumptions
as are acceptable to the Lenders.
(d) The Security Instruments and PM Holdings Guaranty.
(1) PM Holdings Guaranty dated as of the Closing
Date;
(2) Guarantee and Collateral Agreement dated as
of the Closing Date executed by the Company and each
Subsidiary Guarantor, (a) granting to the
Administrative Agent a first priority security
interest in all personal Property described therein
(including 100% of the Company's and each Subsidiary
Guarantor's directly owned Equity in each Subsidiary
Guarantor and, to the extent not prohibited by
applicable law or by such Person's organizational
documents, in any other Person), as security for the
Lender Indebtedness, and (b) guaranteeing the payment
and performance of the Lender Indebtedness by each
Subsidiary Guarantor;
47
(3) PM Holdings Pledge Agreement dated as of the
Closing Date executed by PM Holdings granting to the
Administrative Agent a first priority security
interest in 100% of the Equity of the Company, as
security for the Lender Indebtedness;
(4) Deeds of Trust dated as of the Closing Date
covering the real property listed on Schedule 4.25;
(5) Financing Statements, as appropriate, to
perfect the security interests created by the
instruments delivered under clauses (2) through (4)
above;
(6) Stock certificates and corresponding stock
powers to perfect the Administrative Agent's security
in the stock pledged by the instruments delivered
under clauses (2) and (3) above;
(7) Original promissory notes necessary to
perfect the security interests created by the
Guarantee and Collateral Agreement duly endorsed in
favor of the Administrative Agent;
(8) All Property in which the Administrative
Agent shall, at such time, be entitled to have a Lien
pursuant to this Agreement or any other Financing
Document shall have been physically delivered to the
possession of the Administrative Agent to the extent
that such possession is necessary for the purpose of
perfecting the Administrative Agent's Lien in such
Collateral; and
(9) The Cash Collateral Agreement dated as of the
Closing Date.
(e) Insurance. A certificate of insurance coverage,
dated as of the Closing Date evidencing that the Company
and its Subsidiaries are carrying insurance in accordance
with Section 5.1(e) together with an irrevocable agreement
of Xxxx Industries providing that Xxxx Industries will
provide the Administrative Agent 30 days prior written
notice prior to the cancellation of any policies of
insurance required by Section 5.1(e). In addition, the
Administrative Agent shall have received evidence
satisfactory to the Lenders that none of the improved real
estate Collateral is situated in an area that has been
identified by the Director of the Federal Emergency
Management Agency (as to such Collateral located in the
United States of America) or any other Governmental
Authority as an area having special flood hazards. Should
it be determined, however, that any of the real estate
Collateral is situated in an area identified as having
special flood hazards, the Administrative Agent shall have
received a copy of the applicable flood insurance policies
(or policy applications), in form and substance
satisfactory to the Lenders, indicating that the maximum
limits of coverage have been obtained and that the full
premium therefor has been paid in full.
(f) Title Insurance; Surveys. Mortgagee's Policies of
Title Insurance, dated as of the Closing Date, in form and
substance satisfactory to the Lenders insuring the Liens on
the Company's real property granted pursuant to the Deeds
of Trust (current surveys covering such Properties or
surveyor's affidavits regarding prior surveys as required
by the Administrative Agent).
(g) Consummation of Merger. The Merger was consummated
in accordance with the terms of the Merger Agreement and
the Merger Agreement was not amended or modified other than
with express written consent of the Lenders, subject only
to the funding of the Loans. Proceeds of
48
the new common equity in PM Holdings equal to at least
$109,500,000 have been received by PM Holdings and net
proceeds of the Senior Subordinated Notes of not less than
$340,000,000 were received by the Company on the terms and
conditions set forth in the Offering Circular related
thereto dated March 6, 1998. All material conditions
precedent to the Merger set forth in the Merger Agreement
were satisfied and were not amended, modified or waived
without the express written consent of the Lenders. All
representations and warranties made by KAC and Acquisition
Co. in the Merger Agreement shall be true and correct as of
the Closing Date in all material respects (and KAC and
Acquisition Co. certified in writing, to the Administrative
Agent, the Issuing Banks and the Lenders) and were not
amended, modified or waived without the express written
consent of the Lenders. All documents, instruments,
agreements, transfers, conveyances and bills of sale
necessary for the Merger were in form reasonably
satisfactory to the Lenders.
(h) Solvency Opinion. A solvency opinion by Valuation
Research Corporation, dated as of the Closing Date,
addressed to the Administrative Agent, the Issuing Banks
and the Lenders, stating that the Company is Solvent,
before and after giving effect to the Merger and the
incurrence of the Indebtedness under the Senior
Subordinated Notes and the Lender Indebtedness.
(i) Lien Searches. Lien searches reflecting no prior
Liens on the Collateral other than Liens set forth on
Schedule 6.3(a).
(j) Repayment of Indebtedness Under Existing Credit
Agreement and Release of Liens. Provision satisfactory to
the Lenders that all Indebtedness under the Existing Credit
Agreement shall have been paid in full and the commitments
described therein shall have been terminated and all Liens
securing the same have been released or documentation
providing for the release of all such Liens shall have been
duly executed by all necessary Persons and provision
satisfactory to the Lenders shall have been made for
delivery thereof to the Administrative Agent upon repayment
of the Indebtedness under the Existing Credit Agreement.
(k) Financial Statements and Projections. The
financial condition of the Company reflected in the
financial information and projections of the Company, PM
Holdings and that were delivered to the Lenders by the
Company under a cover letter dated February 11, 1998, have
not changed in such a way as to materially and adversely
affect the prospects of the Company or otherwise cause or
result in a Material Adverse Effect (after giving effect to
the Merger).
(l) Pro Forma Balance Sheet. The unaudited pro forma
consolidated balance sheet of the Company both immediately
before and after giving effect to the Merger and the
incurrence of Indebtedness under the Senior Subordinated
Notes and the Lender Indebtedness, which projected pro
forma consolidated balance sheet shall be (i) prepared on a
basis consistent with the Financial Statements, and (ii) in
form and substance reasonably satisfactory to the Lenders.
(m) Consent Letter. The Administrative Agent shall
have received a letter from CT Corporation System,
presently located at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000, indicating its consent to its appointment by PM
Holdings, the Company and each of the Subsidiary Guarantors
as its agent to receive service of process as specified in
Section 9.8.
(n) Environmental. (i) Environmental Report dated
February 15, 1998, titled Purina Xxxxx, Inc. Environmental
and Safety Report, prepared by Koch Operating Group and
Koch
49
Industries, being an evaluation of the environmental
and safety conditions of the properties and operations of
the Company, and (ii) a reliance letter related thereto
executed by Xxxx Industries.
(o) Fees and Expenses. The Administrative Agent shall
have received for its own account, or for the account of
the Lenders, as the case may be, all fees, costs and
expenses due and payable pursuant to the Fee Letter and
Sections 2.12 and 9.4.
(p) Existing Senior Subordinated Notes. At least 98%
of the aggregate principal amount of the Existing Senior
Subordinated Notes outstanding as of the date of the tender
offer for such notes shall have been tendered and, upon
funding of the Term Loans hereunder and funding of the
Senior Subordinated Notes, all funds necessary to redeem
the tendered Existing Senior Subordinated Notes (and to pay
all accrued interest thereon) shall have been deposited
with the appropriate paying agent.
(q) Existing PM Holdings Discount Notes. All of the
Existing PM Holdings Discount Notes shall have been
tendered and, upon funding of the Senior Subordinated
Notes, all funds necessary to redeem the Existing PM
Holdings Discount Notes (and to pay all accrued interest
thereon) shall have been received by the Company.
(r) Tax Sharing Agreements. The Tax Sharing
Agreements dated as of the Closing Date.
(s) Documentation. The Administrative Agent shall have
received such other documents as the Administrative Agent
(or any Lender acting through the Administrative Agent) may
reasonably request, all in form and substance reasonably
satisfactory to the Lenders.
Section 3.2 Conditions Precedent to All Loans and Letters
of Credit. At the time of the making by each Lender of each Loan
and the issuance of each Issuing Bank of a Letter of Credit,
including the initial Loan and Letter of Credit but not including
continuations or conversions pursuant to Section 2.11 (before as
well as after giving effect to such Loan and to the proposed use
of the proceeds thereof):
(a) No Default. There shall exist no Default;
(b) Representations and Warranties. All
representations and warranties contained herein and in the
other Financing Documents executed and delivered on or
after the Closing Date shall be true and correct in all
material respects with the same effect as though such
representations and warranties had been made on and as of
the date of such Loan or Letter of Credit (unless such
representation and warranty is expressly limited to an
earlier date); and
(c) Maximum Available Amount. The Aggregate Revolving
Credit Exposure, after giving effect to such proposed Loan
or Letter of Credit, shall not exceed the Maximum Available
Amount then in effect.
Each Borrowing Request submitted by the Company, and the
acceptance by the Company of the proceeds of such Borrowing (but
not including continuations or conversions pursuant to Section
2.11), shall constitute a representation and warranty by the
Company, as of the date of such Borrowing, that the conditions
specified in this Section 3.2 have been satisfied.
50
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders to enter into this
Agreement, the Company represents and warrants to the Lenders
(which representations and warranties made by the Company as of
the Closing Date, were made assuming that the Merger had occurred
on or before the Closing Date) that:
Section 4.1 Corporate Existence. The Company and each of
its Subsidiaries are duly organized, legally existing and in good
standing under the laws of the jurisdictions in which they are
incorporated or organized and are duly qualified as foreign
entities in all jurisdictions wherein the Property owned or the
business transacted by them makes such qualification necessary,
except where the failure to be so qualified could not reasonably
be expected to have a Material Adverse Effect.
Section 4.2 Corporate Power and Authorization. The Company
is authorized and empowered to create and issue the Notes; the
Company and each of its Subsidiaries are duly authorized and
empowered to execute, deliver and perform the Financing
Documents, including this Agreement, to which they respectively
are parties; and all corporate action on the Company's part
requisite for the due creation and issuance of the Notes on the
Company's and each of its Subsidiaries' respective part requisite
for the due execution, delivery and performance of the Financing
Documents, including this Agreement, to which the Company and
each of its Subsidiaries respectively are parties has been duly
and effectively taken.
Section 4.3 Binding Obligations. This Agreement does, and
the Notes and other material Financing Documents to which the
Company and each of its Subsidiaries respectively are parties
upon their creation, issuance, execution and delivery will, when
issued and delivered under this Agreement, constitute legal,
valid and binding obligations of the Company and each such
Subsidiary that is a party thereto, respectively, and (assuming
due authorization, execution and delivery by the other parties
thereto) will be enforceable against the Company and each such
Subsidiary, as the case may be, in accordance with their
respective terms, subject to (a) bankruptcy, insolvency,
moratorium and other similar laws now or hereafter in effect
relating to or affecting creditors' rights generally, and (b)
general principles of equity (regardless of whether considered in
a proceeding at law or in equity).
Section 4.4 No Legal Bar or Resultant Lien. The execution,
delivery and performance of the Notes and the other Financing
Documents, including this Agreement, to which the Company or any
of its Subsidiaries is a party do not and will not violate or
create a default under any provisions of the articles or
certificate of incorporation or bylaws of the Company or any of
its Subsidiaries, or any contract, agreement, instrument or
Governmental Requirement to which the Company or any of its
Subsidiaries is subject, or result in the creation or imposition
of any Lien upon any Properties of the Company or any of its
Subsidiaries, except for Liens created by the Financing
Documents.
Section 4.5 No Consent. The Company's and each of its
Subsidiaries' respective execution, delivery and performance of
the Notes and the other Financing Documents, including this
Agreement, to which the Company and each such Subsidiary
respectively are parties, and the consummation of the Merger do
not require notice to or filing or registration with, or the
authorization, consent or approval of or other action by any
other Person, including, but not limited to, any Governmental
Authority, except those obtained or made or where the failure to
do so could not reasonably be expected to have a Material Adverse
Effect.
51
Section 4.6 Financial Information.
(a) Audited Financial Statements. The audited
consolidated balance sheets of the Company and its Subsidiaries
as of December 31, 1996 and 1997, and the related audited
consolidated statements of income, retained earnings and cash
flows for the years then ended, including in each case the
related schedules and notes, reported on by Deloitte & Touche
LLP, true copies of which have been previously delivered to the
Administrative Agent, fairly present, in all material respects,
the consolidated financial condition of the Company and its
Subsidiaries as of the dates thereof and the consolidated results
of operations for such periods, in accordance with GAAP applied
on a consistent basis (except as may be indicated in the notes
thereto).
(b) No Material Adverse Effect. Since December 31,
1997, there has been no event or occurrence that could reasonably
be expected to have a Material Adverse Effect.
Section 4.7 Investments and Guaranties. Neither the Company
nor any of its Subsidiaries has made investments in or advances
to any Person or entered into any Guarantee Obligation with
respect to any Person, except those permitted by Sections 6.2 or
6.6.
Section 4.8 Litigation. There is no material action, suit
or proceeding, or any material governmental investigation or any
arbitration, in each case pending or, to the knowledge of the
Company, threatened against the Company or any of the Subsidiary
Guarantors or any material Property of any thereof before any
court or arbitrator or any Governmental Authority that, if
adversely determined, could reasonably be expected to have a
Material Adverse Effect. There is no material action, suit or
proceeding, or any material governmental investigation or any
arbitration, in each case pending or, to the knowledge of the
Company, threatened against any Unrestricted Subsidiary or any
material Property of any Unrestricted Subsidiary before any court
or arbitrator or any Governmental Authority that, if adversely
determined, could reasonably be expected to have a Material
Adverse Effect. There is no action, suit or proceeding, or any
governmental investigation or any arbitration, in each case
pending or, to the knowledge of the Company, threatened against
the Company or any of its Subsidiaries or any material Property
of any thereof before any court or arbitrator or any Governmental
Authority which challenges the validity of this Agreement, any
Note, any Application, the PM Holdings Guaranty or any of the
other Financing Documents.
Section 4.9 Use of Proceeds. The Company will use the
proceeds of the Loans only for the purposes specified in the
Introductory Statement to this Agreement. The Letters of Credit
will be used only for the purposes provided in Section 2.3.
Neither the Company nor any of its Subsidiaries is engaged princi
pally, or as one of its important activities, in the business of
extending credit for the purpose, whether immediate, incidental
or ultimate, of buying or carrying Margin Stock (within the
meaning of Regulations G, U or X) and no part of the proceeds of
any Loan hereunder will be used to buy or carry any Margin Stock
in violation of Regulation G, U, or X. Neither the Company nor
any Person acting on behalf of the Company has taken or will take
any action which could reasonably be expected to cause the Notes
or any of the Financing Documents, including this Agreement, to
violate Regulations G, U or X or any other regulation of the
Board of Governors of the Federal Reserve System, in each case as
now in effect or as the same may hereinafter be in effect.
Section 4.10 Employee Benefits.
(a) (1) The Company, its Subsidiaries and each ERISA
Affiliate have complied in all material respects with all
applicable laws regarding each Plan; (2) each Plan is, and has
been, maintained
52
in substantial compliance with its terms, applicable collective
bargaining agreements, and all applicable laws: (3) no act,
omission or transaction has occurred which could result in
imposition on the Company, any Subsidiary of the Company or any
ERISA Affiliate (whether directly or indirectly) of (A) either a
civil penalty assessed pursuant to subsections (c), (i) or (l) of
section 502 of ERISA or a tax imposed pursuant to Chapter 43 of
Subtitle D of the Code or (B) breach of fiduciary duty liability
damages under section 409 of ERISA, except for instances of
noncompliance, acts, transactions or omissions that could not
reasonably be expected, individually or in the aggregate, to have
a Material Adverse Effect.
(b) There exists no outstanding liability of the
Company, any of its Subsidiaries or any ERISA Affiliate with
respect to any Plan that has been terminated, which liability
could reasonably be expected, individually or in the aggregate,
to have a Material Adverse Effect. No liability to the PBGC
(other than for the payment of current premiums which are not
past due) by the Company, any Subsidiary of the Company or any
ERISA Affiliate has been or is expected by the Company, any
Subsidiary of the Company or any ERISA Affiliate to be incurred
with respect to any Plan. No ERISA Event with respect to any Plan
has occurred or is reasonably expected to occur that could
reasonably be expected, individually or in the aggregate, to have
a Material Adverse Effect.
(c) Full payment when due has been made of all amounts
which the Company, any of its Subsidiaries or any ERISA Affiliate
is required under the terms of each Plan or applicable law to
have paid as contributions to such Plan (excluding any nonpayment
involving an amount that is not material), and no accumulated
funding deficiency (as defined in section 302 of ERISA and
section 412 of the Code), whether or not waived, exists with
respect to any Plan.
(d) The liabilities relating to the Benefit Plans that
are subject to Title IV of ERISA have been prepared in accordance
with GAAP and accurately reflected in the financial statements of
the Company for the last fiscal year of the Company.
(e) Neither the Company, any Subsidiary of the Company
nor any ERISA Affiliate sponsors, maintains or contributes to, or
has at any time during the preceding six-year period sponsored,
maintained or contributed to, any Multiemployer Plan other than
Multiemployer Plans with respect to which the aggregate potential
withdrawal liability that would be incurred upon a complete
withdrawal from such Multiemployer Plans by the Company, its
Subsidiaries and the ERISA Affiliates could not reasonably be
expected to have a Material Adverse Effect. Prior to the
execution of this Agreement, the Company has furnished to the
Administrative Agent (i) a true and complete listing of the
Multiemployer Plans that are contributed to by the Company, its
Subsidiaries and the ERISA Affiliates as of the date of this
Agreement and (ii) true and complete copies of all information
which has been provided to the Company, a Subsidiary of the
Company or any ERISA Affiliate regarding assessed or potential
withdrawal liability with respect to any such Multiemployer Plan.
(f) Neither the Company, any Subsidiary of the Company
nor any ERISA Affiliate is required to provide security under
section 401(a)(29) of the Code.
Section 4.11 Taxes; Governmental Charges. The Company and
its Subsidiaries have filed all tax returns and reports required
to be filed and have paid all taxes, assessments, fees and other
governmental charges levied upon any of them or upon any of their
respective Properties or income which are due and payable,
including interest and penalties, except where failure to so pay
or file would not have a Material Adverse Effect, or have
provided adequate reserves for the payment thereof if required in
accordance with GAAP for the payment thereof, except such
interest and penalties as are being contested
53
in good faith by appropriate actions or proceedings and for which
adequate reserves for the payment thereof as required by GAAP
have been provided.
Section 4.12 Titles, etc. Each of the Company and its
Subsidiaries has good title to, or valid leasehold interests in,
all its real and personal Property material to its business,
except for minor title defects in title that do not interfere
with its ability to conduct its business as currently conducted
or to utilize such Properties for their intended purposes.
Section 4.13 Defaults. Neither the Company nor any of its
Subsidiaries is in default nor has any event or circumstance
occurred which, but for the passage of time or the giving of
notice, or both, would constitute a default (in any respect that
could reasonably be expected to have a Material Adverse Effect)
under any loan or credit agreement, indenture, mortgage, deed of
trust, security agreement or other instrument or agreement
evidencing or pertaining to any Indebtedness of the Company or
any of its Subsidiaries, or under any material agreement or
instrument to which the Company or any of its Subsidiaries is a
party or by which the Company or any of its Subsidiaries is
bound. No Default hereunder has occurred and is continuing.
Section 4.14 Compliance with the Law. The Company and each
of its Subsidiaries is in compliance with all applicable
Governmental Requirements in respect of the conduct of its
business and the ownership of its Property, except as such
noncompliance could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
Section 4.15 Patents, Licenses, Franchises and Formulas.
The Company and each of its Subsidiaries owns or licenses all
material patents, trademarks, permits, service marks, trade
names, copyrights, licenses, franchises and formulas, or rights
with respect to the foregoing, and has obtained assignments of
all licensors and other rights of whatever nature, reasonably
necessary for the present conduct of its business, without any
known conflict with the other rights of others which, or the
failure to obtain which, as the case may be could reasonably be
expected to have a Material Adverse Effect.
Section 4.16 No Material Misstatements. All factual
information, taken as a whole, in any written exhibit, schedule
or report prepared by or on behalf of the Company and furnished
to the Administrative Agent or the Lenders by or at the direction
of the Company or any of its Subsidiaries in connection with the
negotiation of this Agreement does not contain any material
misstatement of fact or omit to state a material fact necessary
to make the statements contained therein, in light of the
circumstances in which they were made, not misleading, provided,
that the financial information with respect to the Company's
projections contained in the Information Memorandum prepared by
the Administrative Agent dated February, 1998, together with any
supplements to such projections, copies of which have been
furnished to each Lender prior to the Closing Date, were prepared
in good faith on the basis of the assumptions stated therein,
which assumptions were believed by the Company to be reasonable
in all material respects at the time made.
Section 4.17 Investment Company Act. The Company is not an
"investment company" or a company "controlled" by an "investment
company" that is incorporated in or organized under the laws of
the United States or any "State," as those terms are defined in
the Investment Company Act of 1940, as amended. The execution and
delivery by the Company and its Subsidiaries of this Agreement
and the other Financing Documents to which they respectively are
parties and their respective performance of the obligations
provided for therein, will not result in a violation of the
Investment Company Act of 1940, as amended.
54
Section 4.18 Public Utility Holding Company Act. The
Company is not a "holding company," or a "subsidiary company" of
a "holding company," or an "affiliate" of a "holding company" or
of a "subsidiary company" of a "holding company," or a "public
utility" within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
Section 4.19 Subsidiaries. As of the Closing Date, the
Company has no Subsidiaries except those shown in Schedule 4.19,
which schedule was complete and accurate on such date. As of the
Closing Date, the ownership percentage of the Company and each
Subsidiary in the Subsidiaries is as shown in Schedule 4.19.
Section 4.20 Insurance. All policies of fire, liability,
workmen's compensation, casualty, flood, business interruption
and other forms of insurance owned or held by the Company and
each of its Subsidiaries (or on behalf of the Company and each of
its Subsidiaries by Xxxx Industries as provided below) are
sufficient for compliance with all requirements of law and of all
agreements to which the Company or any of its Subsidiaries is a
party; are valid, outstanding and enforceable policies; provide
adequate insurance coverage in at least such amounts and against
at least such risks (but including in any event public liability)
as are usually insured against in the same general area by
companies engaged in the same or a similar business for the
assets and operations of the Company and each of its
Subsidiaries; and, except as provided below, will not in any way
be affected by, or terminate or lapse by reason of, the
transactions contemplated by this Agreement. All such material
policies are in full force and effect, all premiums with respect
thereto have been paid in accordance with their respective terms,
and no notice of cancellation or termination has been received
with respect to any such policy. The certificate of insurance
delivered to the Lenders pursuant to Section 3.1(e) contains an
accurate and complete description of all material policies of
insurance owned or held by the Company and each of its
Subsidiaries on the Closing Date. Notwithstanding the foregoing,
as of a date certain following the consummation of the Merger (as
of the date hereof, the Company believes such date will be April
1, 1998), the Company and each of its Subsidiaries will be
covered by the insurance policies maintained by Xxxx Industries
(a summary of which has been provided to the Administrative
Agent). On and after such date, the Company and each of its
Subsidiaries will be covered by policies of insurance applicable
to Xxxx Industries and its Subsidiaries.
Section 4.21 Environmental Matters.
(a) Environmental Laws, etc. Neither any Property of
the Company or its Subsidiaries nor the operations
conducted thereon violate any applicable order of any court
or Governmental Authority or Environmental Laws, which
violation could reasonably be expected to have a Material
Adverse Effect or which could reasonably be expected to
result in remedial obligations having a Material Adverse
Effect assuming disclosure to the applicable Governmental
Authority of all relevant facts, conditions and
circumstances, if any, pertaining to the relevant Property.
(b) No Litigation. Without limitation of Subsection
4.21(a) above, no Property of the Company or its
Subsidiaries nor the operations currently conducted thereon
or by any prior owner or operator of such Property or
operation, are in violation of or subject to any existing,
pending or threatened action, suit, investigation, inquiry
or proceeding by or before any court or Governmental
Authority or to any remedial obligations under
Environmental Laws, which violation, action, suit,
investigation, inquiry or proceeding could reasonably be
expected to have a Material Adverse Effect or which could
reasonably be expected to result in remedial obligations
having a Material Adverse Effect assuming disclosure to the
applicable Governmental Authority of all relevant facts,
conditions and circumstances, if any, pertaining to the
relevant Property.
55
(c) Notices, Permits, etc. All notices, permits,
licenses or similar authorizations, if any, required to be
obtained or filed by the Company or its Subsidiaries in
connection with the operation or use of any and all
Property of the Company or its Subsidiaries, including but
not limited to past or present treatment, storage, disposal
or release of a hazardous substance or solid waste into the
environment, have been duly obtained or filed except to the
extent the failure to obtain or file such notices, permits,
licenses or similar authorizations could not reasonably be
expected to have a Material Adverse Effect or which could
reasonably be expected to result in remedial obligations
having a Material Adverse Effect assuming disclosure to the
applicable Governmental Authority of all relevant facts,
conditions and circumstances, if any, pertaining to the
relevant Property.
(d) Hazardous Substances Carriers. All hazardous
substances or solid waste generated at any and all Property
of the Company or its Subsidiaries have in the past been
transported, treated and disposed of only by carriers
maintaining valid permits under RCRA and any other
Environmental Law, except to the extent the failure to have
such substances or waste transported, treated or disposed
by such carriers could not reasonably be expected to have a
Material Adverse Effect, and only at treatment, storage and
disposal facilities maintaining valid permits under RCRA
and any other Environmental Law, which carriers and
facilities have been and are operating in compliance with
such permits, except to the extent the failure to have such
substances or waste treated, stored or disposed at such
facilities, or the failure of such carriers or facilities
to so operate, could not reasonably be expected to have a
Material Adverse Effect or which could reasonably be
expected to result in remedial obligations having a
Material Adverse Effect assuming disclosure to the
applicable Governmental Authority of all relevant facts,
conditions and circumstances, if any, pertaining to the
relevant Property.
(e) Hazardous Substances Disposal. The Company and its
Subsidiaries have taken all reasonable steps necessary to
determine and have determined that no hazardous substances
or solid waste have been disposed of or otherwise released
and there has been no threatened release of any hazardous
substances on or to any Property of the Company or its
Subsidiaries except in compliance with Environmental Laws,
except to the extent the failure to do so could not
reasonably be expected to have a Material Adverse Effect or
which could reasonably be expected to result in remedial
obligations having a Material Adverse Effect assuming
disclosure to the applicable Governmental Authority of all
relevant facts, conditions and circumstances, if any,
pertaining to the relevant Property.
(f) No Contingent Liability. The Company and its
Subsidiaries have no material contingent liability in
connection with any release or threatened release of any
hazardous substance or solid waste into the environment
other than such contingent liabilities at any one time and
from time to time which could reasonably be expected to
exceed $1,000,000 in excess of applicable insurance
coverage and for which adequate reserves for the payment
thereof as required by GAAP have not been provided, or
which could reasonably be expected to result in remedial
obligations having a Material Adverse Effect assuming
disclosure to the applicable Governmental Authority of all
relevant facts, conditions and circumstances, if any,
pertaining to such release or threatened release.
Section 4.22 Solvency. The Company and its Subsidiaries,
taken as a whole, and the Company and each of its material
Subsidiaries, are Solvent, both before and after taking into
account the Merger.
56
Section 4.23 Material Contracts. As of the Closing Date,
each of the Material Contracts is in full force and effect.
Neither the Company nor any of its Subsidiaries is in default
under or in breach of any term or condition of any Material
Contract that would have a Material Adverse Effect, nor is it
aware of any default under or breach of any term or condition of
any Material Contract by any other party thereto that could
reasonably be expected to have a Material Adverse Effect.
Section 4.24 Employee Matters. As of the Closing Date,
except as set forth in Schedule 4.24, none of the Company or the
Subsidiary Guarantors, or any of their respective employees, is
subject to any collective bargaining agreement. There are no
strikes, slowdowns, work stoppages or controversies pending or,
to the best knowledge of the Company, threatened against the
Company or its Subsidiaries, or their respective employees, which
could reasonably be expected to have, either individually or in
the aggregate, a Material Adverse Effect. As of the Closing Date,
except as set forth in Schedule 4.24, none of the Company nor any
of the Subsidiary Guarantors is subject to an employment
contract.
Section 4.25 Mortgaged Property. As of the Closing Date,
based on the Company's good faith estimate, the aggregate EBITDA
Value of the real Properties listed on Schedule 4.25 constitutes
at least 70% of Consolidated EBITDA for the fiscal year ended
December 31, 1997.
Section 4.26 Senior Indebtedness. The Lender Indebtedness
constitutes "Senior Debt" of the Company under and as defined in
the Senior Subordinated Notes Indenture.
Section 4.27 Sales Enhancement Loans and Sales Enhancement
Guarantees. Schedule 4.27 sets forth (a) all Sales Enhancement
Loans existing as of the Closing Date, the names of the lenders
and borrowers parties thereto, the outstanding principal balance
thereof, the maximum principal amount available to be drawn
thereunder and the maturity date thereof, and (b) all Sales
Enhancement Guarantees existing as of the Closing Date, the names
of the guaranteeing party, the guaranteed party and the primary
obligor and the maximum potential liability of the guaranteeing
party thereunder.
Section 4.28 PMI Holding Company. PMI Holding Company is a
wholly-owned, direct Subsidiary of the Company that, as of the
Closing Date, has no assets and conducts no business.
ARTICLE 5
AFFIRMATIVE COVENANTS
Section 5.1 Certain Affirmative Covenants. So long as any
Lender has any Commitment hereunder or any Loan remains unpaid or
any Revolving Credit Exposure remains outstanding, the Company
will at all times comply with the following covenants:
(a) Maintenance and Compliance, etc. The Company will
and will cause each of its material Subsidiaries to (1)
except with respect to Unrestricted Subsidiaries, preserve
and maintain its corporate existence, and (2) except where
failure to do so could not reasonably be expected to have a
Material Adverse Effect, observe and comply with all
Governmental Requirements.
(b) Payment of Taxes and Claims, etc. The Company will
pay, and cause each of its Subsidiaries to pay, (1) all
material taxes, assessments and governmental charges
imposed upon it or upon its Property, and (2) all material
claims (including, but not limited to, claims for labor,
materials, supplies or services) which could reasonably be
expected, if unpaid, to become a Lien upon its Property,
unless, in each case, the validity or amount thereof is
being contested in good faith
57
by appropriate action or proceedings and the Company has
established adequate reserves in accordance with GAAP with
respect thereto.
(c) Further Assurances. The Company will and will
cause each of its Subsidiaries to cure promptly any defects
in the creation and issuance of the Notes, and the
execution and delivery of the Financing Documents,
including this Agreement. The Company at its expense will,
as promptly as practical, execute and deliver to the
Administrative Agent or the applicable Issuing Bank upon
reasonable request all such other and further documents,
agreements and instruments (or cause any of its
Subsidiaries to take such action) in compliance with or
performance of the covenants and agreements of the Company
or any of its Subsidiaries in the Financing Documents,
including this Agreement, or to further evidence and more
fully describe the Collateral, or to correct any omissions
in the Financing Documents, or more fully to state the
security obligations set out herein or in any of the
Financing Documents, or to perfect, protect or preserve any
Liens created pursuant to any of the Financing Documents,
or to make any recordings, to file any notices, or obtain
any consents, all as may be necessary or appropriate in
connection therewith.
(d) Performance of Obligations. The Company will pay
the Notes according to the reading, tenor and effect
thereof; and the Company will do and perform every act and
discharge all of the obligations provided to be performed
and discharged by the Company under the Financing
Documents, including this Agreement, at the time or times
and in the manner specified, and cause each of its
Subsidiaries to take such action with respect to their
obligations to be performed and discharged under the
Financing Documents to which they respectively are parties.
(e) Insurance. Either the Company will and will cause
each of its Subsidiaries to, or Xxxx Industries will on
behalf of the Company and each of its Subsidiaries,
maintain or cause to be maintained, with financially sound
and reputable insurers, insurance with respect to their
respective Properties and business against such
liabilities, casualties, risks and contingencies and in
such types (including business interruption insurance and
flood insurance) and amounts as is customary in the case of
Persons engaged in the same or similar businesses and
similarly situated and in accordance with any Governmental
Requirement. In the case of any fire, accident or other
casualty causing loss or damage to any Properties of the
Company and the Subsidiary Guarantors used in generating
cash flow or required by applicable law, the proceeds of
such policies in excess of $100,000 per occurrence shall be
used to promptly repair or replace any such damaged
Properties as required by applicable law, and otherwise
shall be used in the Company's sole discretion, (1) to
reasonably promptly repair or replace the damaged Property,
(2) to prepay the Term Loans in accordance with Section
2.10(b), or (3) to reinvest in other Properties that, in
the good faith judgment of the Company, meet the Company's
capital investment criteria. The Company will obtain
endorsements to the policies pertaining to all physical
Properties in which the Administrative Agent or the Lenders
shall have a Lien under the Financing Documents, naming the
Administrative Agent as a loss payee/additional insured.
(f) Accounts and Records. The Company will keep and
will cause each of its Subsidiaries to keep proper books of
record and account in accordance with GAAP.
(g) Right of Inspection. The Company will permit and
will cause each of its Subsidiaries to permit any officer,
employee or agent of the Administrative Agent or any Lender
to visit and inspect any of the Properties of the Company
or any of its Subsidiaries, examine the Company's or any
such Subsidiary's books of record and accounts, take copies
and extracts
58
therefrom, and discuss the affairs, finances and accounts
of the Company or any of its Subsidiaries with the
Company's or such Subsidiary's officers, accountants and
auditors, as often and all at such reasonable times during
normal business hours as may be reasonably requested by the
Administrative Agent or any of the Lenders.
(h) Operation and Maintenance of Property. The Company
will, and will cause each of its Subsidiaries to, maintain,
preserve, protect and keep its Properties in good repair,
working order and condition, and make necessary and proper
repairs, renewals and replacements so that its business
carried on in connection therewith may be properly
conducted at all times unless the Company determines in
good faith that the continued maintenance of any of its
Properties is no longer economically desirable or unless
the failure to so preserve, maintain, protect and keep its
Properties could not reasonably be expected to have a
Material Adverse Effect.
(i) Additional Subsidiaries; Additional Liens.
(1) If at any time after the Closing Date the
Company or any Subsidiary Guarantor creates or
acquires any one or more additional Subsidiaries
(except for Unrestricted Subsidiaries), or designates
any Unrestricted Subsidiary as a Subsidiary Guarantor
pursuant to Section 6.17, the Company shall, and shall
cause such Subsidiary Guarantor, as applicable, to
execute and deliver to the Administrative Agent, at
the time of creation or acquisition of such Subsidiary
Guarantor, (A) a supplement to the Guarantee and
Collateral Agreement as is necessary to (i) grant to
the Administrative Agent a first priority security
interest in 100% of the Equity in such Subsidiary
Guarantor owned by the Company, and (ii) cause such
Subsidiary Guarantor to become party thereto in
accordance with the terms thereof, and (B) Deeds of
Trust covering such Subsidiary Guarantor's Property,
to the extent required by Section 5.1(i)(2) below.
(2) If at any time after the Closing Date, the
Company or any Subsidiary Guarantor shall acquire any
parcel of real Property having a value in excess of
$5,000,000 (valued at the greater of book or market
value) or the Company or any Subsidiary Guarantor
shall acquire a Subsidiary Guarantor which owns any
parcel of real Property having a value in excess of
$5,000,000 (valued at the greater of book or market
value), the Company shall, or shall cause the
applicable Subsidiary Guarantor to, grant the
Administrative Agent a lien on such real Property
pursuant to a Deed of Trust so that the Administrative
Agent has a first priority lien on such real Property.
(3) In connection with the execution and delivery
of any Security Instrument pursuant to this Section
5.1(i), the Company shall, or shall cause the relevant
Subsidiary to, deliver to the Lenders such corporate
resolutions, certificates, UCC-1 financing statements,
UCC-3 amendments, patent, trademark or copyright
filings, legal opinions and such other related
documents as shall be reasonably requested by the
Required Lenders and consistent with the relevant
forms and types thereof delivered on the Closing Date
or as shall be otherwise reasonably acceptable to the
Required Lenders.
(j) Non-Consolidation of Unrestricted Subsidiaries.
The Company will, and shall cause each of the Subsidiary
Guarantors to, be operated at all times in such a manner
that its assets and liabilities may not be substantively
consolidated with those of any Unrestricted Subsidiary in
the
59
event of the bankruptcy or insolvency of such Unrestricted
Subsidiary. In this regard, the Company shall, and shall
cause each of the Subsidiary Guarantors to:
(1) not (A) consolidate or merge with or into any
Unrestricted Subsidiary or (B) sell, lease or
otherwise transfer, directly or indirectly, any
Property to any Unrestricted Subsidiary except as
permitted by Sections 6.4 and 6.6;
(2) subject to Section 6.6, engage only in
investments in Limited Liability Interests and matters
necessarily incident thereto;
(3) maintain corporate records and books of
account separate from each Unrestricted Subsidiary;
(4) maintain its assets separately from the
assets of any Unrestricted Subsidiary (including
through maintenance of a separate bank account);
(5) except as permitted by Section 6.2, not enter
into any Guarantee Obligations with respect to
Indebtedness of any Unrestricted Subsidiary, or
advance funds (other than through purchases of Limited
Liability Interests as permitted by Section 6.6(g) or
loans as permitted by Section 6.6(k)), for the payment
of expenses or otherwise, to any Unrestricted
Subsidiary;
(6) conduct all of its business correspondence
and other communications in its own name and on its
own stationery;
(7) maintain separate financial statements;
(8) maintain a board of directors that is
separate from (but may contain one or more of the same
members as) the boards of directors of all
Unrestricted Subsidiaries;
(9) maintain the requisite legal formalities in
order that the Company and the Subsidiary Guarantors
may each be treated as a legally separate entity from
any Unrestricted Subsidiary; and
(10) cause each Unrestricted Subsidiary, at the
time of its creation or acquisition, to be adequately
capitalized.
(k) Limited Liability Interests. To the extent the
Company or any Subsidiary Guarantor owns any Equity in any
Person (other than a Subsidiary Guarantor) which are not
Limited Liability Interests, the Company shall, and shall
cause each Subsidiary Guarantor to, within 60 days
following the Closing Date, transfer all of such Equity to
an Unrestricted Subsidiary such that on or before the 60th
day following the Closing Date, neither the Company nor any
Subsidiary Guarantor shall own any Equity in any Person
(other than Subsidiary Guarantors) which are not Limited
Liability Interests.
(l) Dissolution of PMI Holding Company. Within 30 days
following the Closing Date, the Company shall either (1)
dissolve or merge into the Company, PMI Holding Company, or
(2) transfer 100% of the Equity of PMI Holding Company to
Xxxx Industries or to any of its
60
Subsidiaries other than the Company or any of its
Subsidiaries. The Company shall deliver to the
Administrative Agent certified copies of the instruments of
dissolution or merger that have been filed with the
Secretary of State of Delaware or provide the
Administrative Agent with evidence of the transfer of the
Equity of PMI in accordance with the foregoing sentence on
or before the expiration of such 30-day period. The Company
shall not make any investments in, or transfer any Property
to, PMI Holding Company, or otherwise permit PMI Holding
Company to conduct any business.
(m) Year 2000 Compatibility. The Company shall take
all actions reasonably necessary to assure that the
Company's computer based systems are able to operate and
effectively process data which includes dates on and after
January 1, 2000. At the request of the Administrative
Agent, the Company shall provide reasonable assurances
satisfactory to the Administrative Agent of the Company's
Year 2000 compatibility.
(n) Real Estate Post Closing Items. The Company shall
take all commercially reasonably actions necessary to
obtain or comply with the items set forth on Schedule
5.1(n) hereto within 60 days following the Closing Date.
Section 5.2 Reporting Covenants. So long as any Lender has
any Commitment hereunder or any Loan remains unpaid or any
Revolving Credit Exposure remains outstanding, the Company will
furnish the following to the Administrative Agent:
(a) Annual Financial Statements. As soon as available
and in any event within 90 days after the end of each
Fiscal Year of the Company, a consolidated balance sheet of
the Company and its Subsidiaries as at the end of such year
and the related consolidated statements of income, retained
earnings and cash flows of the Company and its Subsidiaries
for such Fiscal Year, setting forth in each case in
comparative form the figures for the previous Fiscal Year,
all in reasonable detail and accompanied by a report
thereon of independent public accountants of recognized
national standing, which such report shall state that such
consolidated financial statements present fairly, in all
material respects, the consolidated financial condition as
at the end of such Fiscal Year, and the consolidated
results of operations and cash flows for such Fiscal Year,
of the Company and its Subsidiaries in conformity with
GAAP, applied on a consistent basis. At the same time, a
consolidating balance sheet of the Company and its
Subsidiaries as at the end of such year and related
consolidating statements of income for such Fiscal Year (in
each case consolidating on the basis of principal lines of
business of the Company and its Subsidiaries), accompanied
by a certification thereon of a Responsible Officer,
stating that such consolidating financial statements form
the basis of the Company's consolidated financial
statements and are fairly stated in all material respects
when considered in relation thereto.
(b) Quarterly Financial Statements. As soon as
available and in any event within 45 days after the end of
each Fiscal Quarter of the Company (other than the last
Fiscal Quarter of each Fiscal Year), an unaudited
consolidated balance sheet of the Company and its
Subsidiaries as at the end of such quarter and the related
unaudited consolidated statements of income, retained
earnings and cash flows of the Company and its Subsidiaries
for such Fiscal Quarter and for the portion of the
Company's Fiscal Year ended at the end of such quarter,
setting forth in each case in comparative form the figures
for the corresponding quarter and the corresponding portion
of the Company's previous Fiscal Year, all in reasonable
detail and certified by a Responsible Officer that such
financial statements are complete and correct and fairly
present, in all material respects, the
61
consolidated financial condition as at the end of such
Fiscal Quarter, and the consolidated results of operations
and cash flows for such Fiscal Quarter and such portion of
the Company's Fiscal Year, of the Company and its
Subsidiaries in conformity with GAAP (subject to normal,
year-end adjustments). At the same time, if prepared by the
Company, a consolidating balance sheet of the Company and
its Subsidiaries at the end of such Fiscal Quarter and
related consolidating statements of income, for the portion
of the Company's Fiscal Year ended at such quarter (in each
case consolidating on the basis of principal lines of
business of the Company and its Subsidiaries), accompanied
by a certification from a Responsible Officer that such
consolidating financial statements form the basis of the
Company's consolidated financial statements and are fairly
stated in all material respects when considered in relation
thereto.
(c) No Default/Compliance Certificate. Together with
the financial statements required pursuant to subsections
5.2(a) and 5.2(b) above, a certificate of the Company,
signed by a Responsible Officer (1) stating that there
exists no Default or Event of Default as of the end of such
Fiscal Quarter or Fiscal Year, or if there shall be a
Default or Event of Default, specifying the nature and
status thereof and the Company's proposed response thereto;
(2) demonstrating in reasonable detail compliance
(including, but not limited to, showing all material
calculations) as at the end of such Fiscal Year or such
Fiscal Quarter with Subsections 6.1(a), 6.1(b) and 6.1(c);
(3) if requested by the Administrative Agent or any Lender,
demonstrating in reasonable detail compliance (including,
but not limited to, showing all material calculations) as
at the end of the Fiscal Year with Sections 6.2, 6.4, 6.5
and 6.6, describing by category (utilizing the same
categories as are used by the Company in its internal
financial reports) any Indebtedness incurred or any sales
of assets, dividends, investments, lease payments, sales or
discounts of receivables and transactions with Affiliates
made by the Company or any Subsidiary as of the end of such
Fiscal Year; and (4) containing or accompanied by such
financial or other details, information and material as the
Administrative Agent may reasonably request to evidence
such compliance.
(d) Events or Circumstances with respect to
Collateral. Promptly after the occurrence of any event or
circumstance concerning or changing any of the Collateral
that would have a Material Adverse Effect, notice of such
event or circumstance in reasonable detail.
(e) Notice of Certain Events. Promptly after the
Company learns of the receipt or occurrence of any of the
following, a certificate of the Company, signed by a
Responsible Officer specifying (1) any official notice of
any violation, possible violation, non-compliance or
possible non-compliance, or claim made by any Governmental
Authority pertaining to all or any part of the Properties
of the Company or any of its Subsidiaries which could
reasonably be expected to have a Material Adverse Effect;
(2) any event which constitutes a Default or Event of
Default, together with a detailed statement specifying the
nature thereof and the steps being taken to cure such
Default or Event of Default; (3) the receipt of any notice
from, or the taking of any other action by, the holder of
any promissory note, debenture or other evidence of
indebtedness in excess of $5,000,000 of the Company or any
of its Subsidiaries with respect to a claimed default,
together with a detailed statement specifying the notice
given or other action taken by such holder and the nature
of the claimed default and what action the Company or its
Subsidiary is taking or proposes to take with respect
thereto; (4) any default or noncompliance of any party to
any of the Financing Documents with any of the terms and
conditions thereof or any notice of termination or other
proceedings or actions which could reasonably be expected
to adversely affect any of the Financing Documents; (5) the
creation, dissolution, merger or acquisition of any
Subsidiary of the Company with material operations; (6) any
event or condition not previously disclosed to the
Administrative Agent, which
62
violates any Environmental Law and which could potentially,
in the Company's reasonable judgment, have a Material
Adverse Effect; (7) any material amendment to, termination
of, or material default under a Material Contract or any
execution of, or material amendment to, termination of, or
material default under, any material collective bargaining
agreement, except collective bargaining agreements of
Unrestricted Subsidiaries; (8) the occurrence, with respect
to any of the BP Parties, of any of the events described in
Section 7.8 or the failure of the BP Indemnity to continue
to be in full force and effect; (9) the occurrence, with
respect to any of the Xxxxxxx Parties, of any of the events
described in Section 7.8 or the failure of the Xxxxxxx
Indemnity to continue to be in full force and effect; or
(10) any event or condition which may reasonably be
expected to have a Material Adverse Effect.
(f) Certain Filings. Promptly upon the mailing,
filing, or making thereof, copies of all registration
statements, periodic reports and other documents (excluding
the related exhibits except to the extent expressly
requested by the Administrative Agent) filed by the Company
with the Securities and Exchange Commission (or any
successor thereto) or any national securities exchange.
(g) Litigation. Promptly after the occurrence thereof,
notice of the institution of or any material adverse
development in any action, suit or proceeding or any
governmental investigation or any arbitration, before any
court or arbitrator or any governmental or administrative
body, agency or official, against the Company, PM Holdings,
or any Subsidiary or any material Property of any thereof,
which could reasonably be expected to have a Material
Adverse Effect.
(h) ERISA. Promptly after (i) the Company's obtaining
knowledge of the occurrence thereof, notice that an ERISA
Event or a "prohibited transaction," as such term is
defined in section 406 of ERISA or section 4975 of the
Code, with respect to any Plan has occurred (which ERISA
Event or prohibited transaction could reasonably be
expected, individually or in the aggregate, to have a
Material Adverse Effect), which notice shall specify the
nature thereof, the Company's proposed response thereto
(and, if appropriate, the proposed response thereto of any
Subsidiary of the Company and of any ERISA Affiliate) and,
when known, any action taken or proposed by the Internal
Revenue Service, the Department of Labor or the PBGC with
respect thereto, (ii) the Company's obtaining knowledge
thereof, copies of any notice of the PBGC's intention to
terminate or to have a trustee appointed to administer any
Plan, (iii) the filing thereof with any Governmental
Authority ( if requested by the Administrative Agent),
copies of each annual and other report (including
applicable schedules) with respect to each Benefit Plan or
any trust created thereunder, (iv) the occurrence thereof,
notice of the agreement by the Company, a Subsidiary of the
Company or any ERISA Affiliate to contribute to, or assume
an obligation to contribute to, a Multiemployer Plan, (v)
the receipt by the Company, any Subsidiary of the Company
or any ERISA Affiliate of an actuarial report for any Plan
or an annual report for any Multiemployer Plan (if
requested by the Administrative Agent), true and complete
copies of each such report, (vi) the receipt by the
Company, any Subsidiary of the Company or any ERISA
Affiliate of a notice from a Multiemployer Plan regarding
the imposition of withdrawal liability, a true and complete
copy of such notice, and (vii) the Company's obtaining
knowledge that a Multiemployer Plan has been terminated,
that the administrator or plan sponsor of a Multiemployer
Plan intends to terminate a Multiemployer Plan, or that the
PBGC has instituted or intends to institute proceedings
under section 4042 of ERISA to terminate a Multiemployer
Plan, notice specifying the nature of such occurrence and
any other information relating thereto requested by the
Administrative Agent.
63
(i) Insurance Coverage. Upon request, a summary of the
insurance coverages of the Company and its Subsidiaries in
form and substance reasonably satisfactory to the
Administrative Agent; upon renewal of any such insurance
policy, a copy of an insurance certificate summarizing the
terms of such policy; and upon request of the
Administrative Agent, copies of the applicable policies.
(j) Consolidated Excess Cash Flow Certificate. On or
before each April 15th, commencing on April 15, 1999, the
Company's preliminary calculation of its Consolidated
Excess Cash Flow for the previous Fiscal Year, in
accordance with Section 2.10(b).
(k) Other Information. With reasonable promptness,
such other information about the business and affairs and
financial condition of the Company or its Subsidiaries as
the Administrative Agent may reasonably request from time
to time.
ARTICLE 6
NEGATIVE COVENANTS
So long as any Lender has any Commitment hereunder or any
Loan remains unpaid or any Revolving Credit Exposure outstanding,
the Company will not:
Section 6.1 Financial Covenants. So long as any Lender has
any Commitment hereunder or any Loan remains unpaid or any
Revolving Credit Exposure remains outstanding, the Company will,
at all times.
(a) Consolidated Interest Coverage Ratio. Maintain a
Consolidated Interest Coverage Ratio of not less than the
ratio for each Rolling Period indicated below:
Each Rolling Period Ratio
during the Fiscal
Year ending
December 31, 1998 1.75
Each Rolling Period
thereafter 2.00
(b) Consolidated Fixed Charge Coverage Ratio. Maintain
a Consolidated Fixed Charge Coverage Ratio of not less than
the ratio for each Rolling Period indicated below:
Each Rolling Period Ratio
during the Fiscal
Years ending
December 31, 1998 1.10
December 31, 1999 1.10
64
Each Rolling Period
ending
March 31, 2000 1.10
June 30, 2000 1.10
September 30, 2000 1.10
December 31, 2000 1.15
March 31, 2001 1.15
June 30, 2001 1.15
September 30, 2001 1.15
December 31, 2001 1.20
Each Rolling Period
thereafter 1.20
(c) Consolidated Leverage Ratio. Maintain a
Consolidated Leverage Ratio of not greater than the ratio
for each Rolling Period indicated below:
Each Rolling Period
ending Ratio
March 31, 1998 6.00
June 30, 1998 6.00
September 30, 1998 6.00
December 31, 1998 5.75
Each Rolling Period
during the Fiscal
Years ending
December 31, 1999 5.75
December 31, 2000 5.25
December 31, 2001 4.75
December 31, 2002 4.50
December 31, 2003 4.25
December 31, 2004 4.00
65
Each Rolling Period
thereafter 3.75
Section 6.2 Indebtedness. Create, incur, assume or suffer
to exist, or permit any of its Subsidiaries to create, incur,
assume or suffer to exist, any Indebtedness, other than:
(a) the Lender Indebtedness in the principal amount
not to exceed the outstanding Term Loans and the Revolving
Credit Commitments less the aggregate amount of permanent
reductions of the Revolving Credit Commitments and payments
or prepayments of the Term Loans;
(b) Indebtedness outstanding on the date hereof which
is set forth on Schedule 6.2(b), provided, that any
Indebtedness indicated on Schedule 6.2(b) as "Indebtedness
to be Repaid" shall have been repaid on or before the date
indicated thereon;
(c) Indebtedness outstanding under the Existing Senior
Subordinated Notes, provided, that at least 98% of such
Indebtedness shall have been repaid on or before 5:00 p.m.
(Houston, Texas time) on the second Business Day
immediately following the Closing Date and the balance
thereof shall constitute Indebtedness permitted pursuant to
6.2(m);
(d) Accounts payable (for the deferred purchase price
of Property or services) from time to time incurred in the
ordinary course of business and guaranties by the Company
or any Subsidiary in the ordinary course of business of any
such obligations incurred by any Subsidiary Guarantor;
(e) Indebtedness owing by (1) any Subsidiary to the
Company or to any Subsidiary Guarantor, or (2) the Company
to any Subsidiary Guarantor;
(f) Obligations for current taxes, assessments and
other governmental charges and taxes, assessments or other
governmental charges which are not yet due or are being
contested in good faith by appropriate action or proceeding
promptly initiated and diligently conducted, if such
reserve as shall be required by GAAP shall have been made
therefor;
(g) So long as no Default or Event of Default exists,
both before and after giving effect (on a pro forma basis)
to the incurrence thereof, purchase-money Indebtedness and
Capital Lease Obligations in an aggregate amount not to
exceed $50,000,000 at any one time outstanding, provided,
that any such purchase-money Indebtedness may not exceed
the lesser of the purchase price paid for the Property
acquired with such Indebtedness and the fair market value
thereof;
(h) Indebtedness evidenced by the Senior Subordinated
Notes in an aggregate principal amount not to exceed
$350,000,000;
(i) Indebtedness owing pursuant to Hedge Agreements
entered into in the ordinary course of business for the
purpose of hedging against fluctuations in interest rates
(on money borrowed by the Company), commodity prices and
foreign exchange rates;
(j) Non-Recourse Debt of an Unrestricted Subsidiary;
66
(k) So long as no Default or Event of Default exists,
both before and after giving effect (on a pro forma basis)
to the incurrence thereof, Indebtedness owing pursuant to
Sales Enhancement Guarantees (including those described on
Schedule 4.27), provided, that the aggregate amount of all
Sales Enhancement Guarantees and all Sales Enhancement
Loans at any one time outstanding shall not exceed
$25,000,000, except, in the case of Sales Enhancement
Guarantees, to the extent such obligations are permitted to
be incurred and remain outstanding by virtue of
availability of the basket provided pursuant to Section
6.2(m), and, in the case of Sales Enhancement Loans, (i) to
the extent such loans are permitted to be made and remain
outstanding by virtue of availability of the basket
provided pursuant to Section 6.6(n) and (ii) Other Sales
Enhancement Loans, and, provided, further, that, without
the prior written consent of the Required Lenders, no more
than $5,000,000 in aggregate principal amount of
Indebtedness of any Person and its Affiliates may be either
guaranteed or loaned pursuant to such Sales Enhancement
Guarantees or Sales Enhancement Loans, respectively and
inclusive of one another;
(l) Customary indemnifications and purchase price
adjustments entered into in agreements by the Company or
any Subsidiary Guarantor in connection with permitted
Dispositions and acquisitions, including, but not limited
to Standard Securitization Undertakings; and
(m) So long as no Default or Event of Default exists,
both before and after giving effect (on a pro forma basis)
to the incurrence thereof, Indebtedness not otherwise
permitted pursuant to this Section 6.2 in an aggregate
amount not to exceed $20,000,000 at any one time
outstanding less the amount of Other Sales Enhancement
Loans, provided, that the aggregate amount of such other
Indebtedness permitted pursuant to this Section 6.2(m)
together with such Other Sales Enhancement Loans may not
exceed $20,000,000 at any one time outstanding.
Section 6.3 Liens. Create, incur, assume or suffer to
exist, or permit any of its Subsidiaries to create, incur, assume
or suffer to exist, any Lien on any of its Property now owned or
hereafter acquired to secure any Indebtedness of the Company, any
Subsidiary or any other Person, other than:
(a) Liens existing on the date hereof and set forth on
Schedule 6.3(a), provided, that any Liens indicated on
Schedule 6.3(a) as "Liens to be Released" shall have been
released of record within 10 days after the Closing Date;
(b) Liens securing the Lender Indebtedness;
(c) Liens for taxes, assessments or other governmental
charges or levies not yet due or which are being contested
in good faith by appropriate action or proceedings and with
respect to which adequate reserves are being maintained;
(d) Statutory Liens of landlords and Liens of
carriers, warehousemen, mechanics, materialmen, repairmen,
workmen, and other Liens imposed by law created in the
ordinary course of business for amounts which are not past
due for more than 30 days or which are being contested in
good faith by appropriate action or proceedings and with
respect to which adequate reserves in accordance with GAAP
are being maintained;
(e) Liens incurred or deposits or pledges made in the
ordinary course of business in connection with workers'
compensation, unemployment insurance and other types of
social security,
67
old age or other similar obligations, or to secure the
performance of tenders, statutory obligations, surety and
appeal bonds, bids, leases, government contracts,
performance and return-of-money bonds and other similar
obligations (exclusive of obligations for the payment of
borrowed money);
(f) minor irregularities in title, easements,
rights-of-way, restrictions, servitudes, permits,
reservations, exceptions, conditions, covenants and other
similar charges or encumbrances not materially interfering
with the occupation, use and enjoyment by the Company or
any of its Subsidiaries of any of their respective
Properties in the normal course of business or materially
impairing the value thereof;
(g) any obligations or duties affecting any of the
Property of the Company or its Subsidiaries to any
municipality or public authority with respect to any
franchise, grant, license or permit which do not materially
impair the use of such Property for the purposes for which
it is held;
(h) Liens securing Indebtedness permitted pursuant to
Section 6.2(g), provided, that (1) such Lien was created
solely for the purpose of securing such Indebtedness, (2)
the principal amount of such Indebtedness does not exceed
the fair value of such Property at the time of its
acquisition, and (3) such Lien relates only to the Property
being leased or acquired;
(i) Liens resulting from operation of law with respect
to any judgments or orders not constituting an Event of
Default;
(j) Liens on cash held in the Rabobank Cash Collateral
Account used to secure the Rabobank Limited Guaranty to the
extent permitted under Section 6.2(k), provided, that (1)
the maximum amount of cash in such account does not at any
time exceed the lesser of (A) the maximum liability of the
Company pursuant to Rabobank Limited Guaranty and (B)
$12,000,000, (2) such account is not funded with cash that
is at the time subject to a Lien pursuant to any of the
Security Instruments, (3) such account shall only be
established upon the occurrence of the conditions set forth
in Section 20 of the Rabobank Limited Guaranty relating to
a "Cash Collateral Event", and (4) the Borrower shall take
whatever actions are necessary to terminate such account
and to take possession of the cash held therein upon the
termination of the Rabobank Limited Guaranty or upon the
conditions set forth in Section 20 of the Rabobank Limited
Guaranty which require the establishment of such account
ceasing to exist;
(k) Liens in favor of customs and revenue authorities
arising as a matter of laws to secure the payment of
customs duties in connection with the importation of goods;
(l) any Lien existing on Property prior to the
acquisition thereof by the Company or any Subsidiary
Guarantor after the Closing Date, provided, that (1) such
Lien is not created in contemplation of or in connection
with such acquisition, (2) such Lien shall not apply to any
other Property of the Company or any Subsidiary Guarantor,
and (3) such Lien shall secure only those obligations which
it secures on the date of such acquisition;
(m) Uniform Commercial Code protective filings with
respect to personal property permitted to be leased under
the terms of this Agreement and any interest or title of a
lessor under any lease permitted by this Agreement;
68
(n) Liens on Property of Unrestricted Subsidiaries to
secure Indebtedness of Unrestricted Subsidiaries permitted
under Section 6.2(j); and
(o) extensions, renewals or replacements of any Lien
referred to in Subsections 6.3(a), 6.3(h), 6.3(j) and
6.3(l), provided, that the principal amount of the
Indebtedness or obligation secured thereby is not increased
and that any such extension, renewal or replacement is
limited to the Property originally encumbered thereby.
Section 6.4 Mergers, Sales, etc. Merge into or with or
consolidate with, or permit any of its Subsidiaries to merge into
or with or consolidate with, any other Person, or Dispose of, or
permit any of its Subsidiaries to Dispose of (whether in one
transaction or in a series of transactions) all or any part of
its Property to any other Person. Notwithstanding the foregoing
limitations:
(a) the Company and the Subsidiary Guarantors may (1)
sell inventory, and other similar assets in the ordinary
course of business, (2) Dispose of personal property in the
ordinary course of business or when, in the reasonable
judgment of the Company, such property is no longer used or
useful in the conduct of its business or the business of
its Subsidiaries, (3) enter into the HQ Sale/Leaseback,
provided, that such sale is for fair market value and that
the Company shall use the Net Proceeds therefrom to prepay
the Term Loans pursuant to Section 2.10(b)(4), (4) enter
into the HQ Sale, provided, that such sale is for fair
market value and that the Company shall use the Net
Proceeds therefrom to either prepay the Term Loans or
reinvest in the Company's business, in either case in
accordance with Section 2.10(b)(3), (5) enter into
Permitted Securitizations, (6) sell notes and accounts
receivable to the extent permitted by Section 6.10, (7)
dispose of the closed plants listed on Schedule 6.4(a),
provided, that such sale is for fair market value and that
the Company shall use the Net Proceeds therefrom to either
prepay the Term Loans or reinvest in the Company's
business, in either case in accordance with Section
2.10(b)(3), and (8) in addition to clauses (1) through (7),
Dispose of up to $5,000,000 in fair-market value of their
Property in the aggregate during any Fiscal Year, provided,
that the Company shall use the Net Proceeds therefrom to
either prepay the Term Loans or reinvest in the Company's
business, in either case in accordance with Section
2.10(b)(3);
(b) (1) any Subsidiary Guarantor may merge into or
with or consolidate with any other Subsidiary Guarantor or
the Company (and, in the case of the Company, so long as
the Company is the surviving entity), and (2) any
Unrestricted Subsidiary may merge into or with or
consolidate with any other Unrestricted Subsidiary;
(c) any Subsidiary may transfer Property to any
Subsidiary Guarantor or to the Company;
(d) the Company or any Subsidiary Guarantor may
contribute Properties to Unrestricted Subsidiaries or to
any other Person in which the Company or a Subsidiary
Guarantor holds Limited Liability Interests to the extent
permitted by Section 6.6(g);
(e) the Company may transfer Property to any
Subsidiary Guarantor; and
(f) any Unrestricted Subsidiary may Dispose of all or
any of its Property to any Person.
68
Section 6.5 Dividends, etc. Declare or pay any dividend on
its capital stock or other Equity, make any payment to purchase,
redeem, retire or otherwise acquire any of its capital stock or
other Equity or any option, warrant, or other right to acquire
such capital stock or other Equity, now or hereafter outstanding,
return any capital to its stockholders, make any distribution of
its assets, capital stock or other Equity, warrants, rights,
options, obligations or securities to its stockholders, or permit
any of its Subsidiaries to do so, except that:
(a) the Company may declare and deliver dividends
payable solely in shares of its capital stock or in
options, warrants or rights to purchase shares of capital
stock;
(b) any Subsidiary of the Company may declare and
deliver dividends to the Company or any Subsidiary
Guarantor;
(c) so long as at the time of payment of such dividend
(both before and after giving effect to the payment
thereof) the Company satisfies the conditions precedent to
the making of Loans set forth in Section 3.2, the Company
may pay cash dividends to PM Holdings (or any successor
parent company which is a Subsidiary of KAC) for the
purpose of paying, and so long as all proceeds thereof are
promptly used by PM Holdings (or any successor parent
company which is a Subsidiary of KAC) to pay, (1) operating
expenses incurred in the ordinary course of business and
other corporate overhead costs and expenses in an aggregate
amount not to exceed $1,000,000 in any Fiscal Year of the
Company, and (2) franchise taxes and federal, state and
local income taxes and interest and penalties with respect
thereof, provided, that any refund shall be promptly
returned by PM Holdings (or any successor parent company
which is a Subsidiary of KAC) to the Company;
(d) so long as at the time of payment of such dividend
(both before and after giving effect to the payment
thereof) the Company satisfies the conditions precedent to
the making of Loans set forth in Section 3.2, the Company
may, after payment in full of amounts owing pursuant to
Section 2.10(b)(1), pay cash dividends to PM Holdings in
any Fiscal Year in amount not to exceed 25% of Excess Cash
Flow for the prior Fiscal Year commencing with Excess Cash
Flow attributable to the Fiscal Year ending December 31,
1998;
(e) the Company may pay cash dividends to PM Holdings
in an amount necessary to (1) permit PM Holdings to redeem
the existing PM Holdings Discount Notes, provided, that
such dividend shall be paid on the first Business Day after
the Closing Date, and (2) permit PM Holdings to pay other
amounts in connection with the Merger that are necessary to
consummate the Merger; and
(f) any Unrestricted Subsidiary may declare and
deliver dividends to holders of its Equity, provided, that
such dividends are paid pro-rata to all Equity holders.
Section 6.6 Investments, Loans, etc. Make or permit any
loans to or investments in any Person, or permit any of the
Subsidiary Guarantors to make or permit any loans to or
investments in any Person, other than:
(a) investments, loans or advances, the material
details of which have been set forth on Schedule 6.6(a)
hereto;
70
(b) investments in direct obligations of the United
States of America or any agency thereof or, in each case
with maturities of one year or less from the date of
acquisition;
(c) investments in certificates of deposit of
maturities less than one year, issued by commercial banks
in the United States having capital and surplus in excess
of $500,000,000 and having short-term credit ratings of at
least A1 and P1 by Standard & Poor's Ratings Group and
Xxxxx'x Investors Service, Inc., respectively;
(d) investments in commercial paper of maturities of
not more than 270 days rated at least A1 and P1 by Standard
& Poor's Ratings Group and Xxxxx'x Investors Service, Inc.,
respectively; and
(e) investments in securities that are obligations of
the United States government purchased by the Company or
any Subsidiary of the Company under repurchase agreements
pursuant to which arrangements are made with selling
financial institutions (being a financial institution
having unimpaired capital and surplus of not less than
$500,000,000 and with short-term credit ratings of at least
A1 and P1 by Standard & Poor's Ratings Group and Xxxxx'x
Investors Service, Inc., respectively) for such financial
institutions to repurchase such securities within 30 days
from the date of purchase by the Company or such
Subsidiary, and other similar short-term investments made
in connection with the Company's or any of its Subsidiary's
cash management practices, provided, that the Company shall
take possession of all securities purchased by the Company
or any Subsidiary under repurchase agreements and shall
adhere to customary margin and xxxx-to-market procedures
with respect to fluctuations in value;
(f) investments in any security issued by an
investment company registered under Section 8 of the
Investment Company Act of 1940 (15 U.S.C. 80a-8) that is a
money market fund in compliance with all applicable
requirements of SEC Rule 2a-7 (17 CFR 270.2a-7);
(g) so long as no Default or Event of Default exists,
both before and after giving effect (on a pro forma basis)
to any such purchase or capitalization, the purchase or
capitalization (either with cash or by the contribution of
Properties, other than real Property securing the Lender
Indebtedness) of Limited Liability Interests in
Unrestricted Subsidiaries or other Persons and, provided,
further, that the aggregate amount of such investments
(including investments made with such contributed
Properties) made after the Closing Date shall not exceed
(without duplication) $10,000,000 in the aggregate, except
to the extent such purchases or capitalizations are
permitted to be made and remain outstanding by virtue of
availability of the basket provided pursuant to Section
6.6(n);
(h) investments in, or loans or advances to,
Subsidiary Guarantors and loans to the Company by any
Subsidiary Guarantor, provided, that such loans are
subordinated to the repayment of the Lender Indebtedness on
terms and conditions satisfactory to the Required Lenders;
(i) any acquisition of 100% of the Equity of another
Person or of assets constituting the business unit of
another Person, provided, that (1) after giving pro forma
effect thereto (as certified to the Administrative Agent by
a Responsible Officer no sooner than 5 Business Days, and
no longer than 30 Business Days, prior to such
acquisition), no Default or Event of Default shall have
occurred and be continuing or would result therefrom, (2)
if such acquisition is an acquisition of Equity, the Person
being acquired shall be a Subsidiary Guarantor and all
provisions of Sections
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5.1(i) applicable to such Subsidiary Guarantor shall have
been satisfied, (3) such acquisition shall involve
businesses of the type in which the Company is already
engaged in accordance with Section 6.8, and (4) such
acquisition has been approved by the board of directors or
other governing body of the Person being acquired;
(j) routine loans or advances to employees in the
ordinary course of business in an aggregate amount not to
exceed $1,000,000 at any one time outstanding to any one
employee and $5,000,000 at any time outstanding to all
employees;
(k) so long as no Default or Event of Default exists,
both before and after giving effect (on a pro forma basis)
to the making thereof, (1) Sales Enhancement Loans,
provided, that the aggregate of all Sales Enhancement Loans
and all Sales Enhancement Guarantees at any one time
outstanding shall not exceed $25,000,000, except, in the
case of Sales Enhancement Guarantees, to the extent such
obligations are permitted to be incurred and remain
outstanding by virtue of availability of the basket
provided pursuant to Section 6.2(m), and, in the case of
Sales Enhancement Loans, to the extent such loans are
permitted to be made and remain outstanding by virtue of
availability of the basket provided pursuant to Section
6.6(n), and (2) Other Sales Enhancement Loans, to the
extent such loans are permitted to be made and remain
outstanding by virtue of availability of the basket
provided pursuant to Section 6.2(m). Notwithstanding the
foregoing, without the prior written consent of the
Required Lenders, no more than $5,000,000 in aggregate
principal amount of Indebtedness of any Person and its
Affiliates may be either guaranteed or loaned pursuant to
such Sales Enhancement Guarantees or Sales Enhancement
Loans, respectively and inclusive of one another;
(l) subrogation rights that exist by virtue of
payments made pursuant to obligations under Sales
Enhancement Guarantees;
(m) Limited Liability Interests or obligations
received in settlement of loans to other Persons permitted
hereunder or in satisfaction of judgments; and
(n) so long as no Default or Event of Default exists,
both before and after giving effect (on a pro forma basis)
to the making thereof, other investments, loans, or
advances in an aggregate amount not to exceed $20,000,000
at any one time outstanding, provided, that investments in
other Persons made pursuant to this Section 6.6(n) must be
in the form of Limited Liability Interests.
Section 6.7 Sales and Leasebacks. Except for the HQ
Sale/Leaseback, enter into, or permit any of the Subsidiary
Guarantors to enter into, any arrangement, directly or
indirectly, with any Person whereby the Company or any such
Subsidiary shall sell or transfer any Property, whether now owned
or hereafter acquired, and whereby the Company or any such
Subsidiary shall then or thereafter rent or lease as lessee such
Property or any part thereof or other Property which the Company
or any such Subsidiary intends to use for substantially the same
purpose or purposes as the Property sold or transferred.
Notwithstanding the foregoing, this Section 6.7 shall not
prohibit the Company or its Subsidiaries from leasing a facility
as a headquarters for the Company and its Subsidiaries following
an HQ Sale, provided, that such lease is a bona fide operating
lease and not part of a disguised financing.
Section 6.8 Nature of Business. Enter into, or permit any
Subsidiary to enter into, any business except for those
businesses in which the Company and its Subsidiaries were engaged
on the Closing Date or which are related thereto.
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Section 6.9 ERISA Compliance.
(a) Engage in, or permit a Subsidiary of the Company
or any ERISA Affiliate to engage in, any transaction in
connection with which the Company, a Subsidiary of the
Company or any ERISA Affiliate could be subjected to either
a civil penalty assessed pursuant to subsections (c), (i)
or (l) of section 502 of ERISA or a tax imposed by Chapter
43 of Subtitle D of the Code, which penalty or tax could
reasonably be expected, individually or in the aggregate,
to have a Material Adverse Effect;
(b) Terminate, or permit a Subsidiary of the Company
or any ERISA Affiliate to terminate, any Benefit Plan in a
manner, or take any other action with respect to any
Benefit Plan, which could reasonably be expected to result
in any liability of the Company, a Subsidiary of the
Company or any ERISA Affiliate to the PBGC or any other
Governmental Authority in an amount which could reasonably
be expected to have a Material Adverse Effect;
(c) Fail to make, or permit a Subsidiary of the
Company or any ERISA Affiliate to fail to make, full
payment when due of all amounts which, under the provisions
of any Plan, agreement relating thereto or applicable law,
the Company, a Subsidiary of the Company or any ERISA
Affiliate is required to pay as contributions thereto
except for any nonpayment that could not reasonably be
expected, individually or in the aggregate, to have a
Material Adverse Effect;
(d) Permit to exist, or allow a Subsidiary of the
Company or any ERISA Affiliate to permit to exist, any
accumulated funding deficiency within the meaning of
section 302 of ERISA or section 412 of the Code, whether or
not waived, with respect to any Benefit Plan in an amount
which could reasonably be expected to have a Material
Adverse Effect;
(e) Fail to pay, or cause to be paid, or allow a
Subsidiary of the Company or any ERISA Affiliate to fail to
pay or cause to be paid, to the PBGC in a timely manner,
and without incurring any late payment or underpayment
charge or penalty, all premiums required pursuant to
Sections 4006 and 4007 of ERISA, except where such failure
could not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect;
(f) Amend, or permit a Subsidiary of the Company or
any ERISA Affiliate to amend, a Plan resulting in an
increase in current liability such that the Company, a
Subsidiary of the Company or any ERISA Affiliate is
required to provide security to such Plan under section
401(a)(29) of the Code;
(g) Incur, or permit a Subsidiary of the Company or
any ERISA Affiliate to incur, a material liability to or on
account of a Plan under sections 515, 4062, 4063, 4064,
4201 or 4204 of ERISA;
(h) Permit, or allow a Subsidiary of the Company or
any ERISA Affiliate to permit, the aggregate potential
withdrawal liability with respect to all Multiemployer
Plans contributed to by the Company, its Subsidiaries and
the ERISA Affiliates to be in an amount which could
reasonably be expected to result in a Material Adverse
Effect in the event that the Company, its Subsidiaries and
the ERISA Affiliates, as the case may be, were to
completely withdraw from such Multiemployer Plans; or
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(i) Permit, or allow a Subsidiary of the Company or
any ERISA Affiliate to permit, the actuarial present value
of the benefit liabilities (computed on an accumulated
benefit obligation basis in accordance with GAAP) under all
Plans in the aggregate to exceed the current value of the
assets of all Plans in an amount that could reasonably be
expected to have a Material Adverse Effect.
Section 6.10 Sale or Discount of Receivables. Sell, with or
without recourse, for discount or otherwise, or permit any of the
Subsidiary Guarantors to sell, with or without recourse, for
discount or otherwise, any notes receivable or accounts
receivable. Notwithstanding the foregoing, the Company and the
Subsidiary Guarantors may (a) without recourse (except for
Standard Securitization Undertakings), enter into Permitted
Securitizations, and (b) sell, without recourse (except for
accounts receivable sold with recourse to Northeastern Farm
Credit, A.C.A. in an aggregate face amount not to exceed $300,000
in any Fiscal Year), notes receivable or accounts receivable in
the ordinary course of business of the Company and the Subsidiary
Guarantors (as conducted as of the Closing Date) in an aggregate
face amount not to exceed $750,000 in any Fiscal Year, provided,
that the Net Cash Proceeds from sales pursuant to this subsection
(b) shall be applied to prepay the Term Loans pursuant to Section
2.10(b)(3).
Section 6.11 Negative Pledge Agreements. Create, incur,
assume or suffer to exist, or permit any of the Subsidiary
Guarantors to create, incur, assume or suffer to exist, any
contract, agreement or understanding (other than (a) this
Agreement and the other Financing Documents, (b) the Senior
Subordinated Notes Indenture, and (c) any agreements governing
any purchase money Liens or Capital Lease Obligations otherwise
permitted hereby, provided, that any such prohibition or
limitation is only effective against the Property financed
thereby) which in any way prohibits or restricts the granting,
conveying, creation or imposition of any Lien on any Property of
the Company or the Subsidiary Guarantors, or which requires the
consent of or notice to other Persons in connection therewith.
Section 6.12 Transactions with Affiliates. Enter into any
transaction or series of transactions, or permit any of its
Subsidiaries to enter into any transaction or series of
transactions, with Affiliates of the Company or its Subsidiaries
which involve an outflow of money or other Property from the
Company or its Subsidiaries to an Affiliate of the Company or its
Subsidiaries, including but not limited to repayment of
Indebtedness, management fees, compensation, salaries, asset
purchase payments or any other type of fees or payments similar
in nature, other than on terms and conditions substantially as
favorable to the Company and its Subsidiaries as would be
obtainable by the Company and its Subsidiaries in a reasonably
comparable arm's-length transaction with a Person other than an
Affiliate of the Company or its Subsidiaries. Notwithstanding the
foregoing, the restrictions set forth in this Section 6.12 shall
not apply to: (a) any transaction or series of transactions with
the Company or the Subsidiary Guarantors which involve an outflow
of money or other Property from an Unrestricted Subsidiary to the
Company or a Subsidiary Guarantor, or (b) any transaction or
series of transactions which involve an outflow of money or other
Property from an Unrestricted Subsidiary to another Unrestricted
Subsidiary.
Section 6.13 Unconditional Purchase Obligations. Enter into
or be a party to, or permit any of the Subsidiary Guarantors to
enter into or be a party to, any material contract for the
purchase of materials, supplies or other property or services, if
such contract requires that payment be made by it regardless of
whether or not delivery is ever made of such materials, supplies
or other property or services.
Section 6.14 Stock. Authorize or issue (a) any Equity to
any Person other than PM Holdings, or (b) any preferred stock or
other Equity securities having a mandatory redemption right
existing with regard thereto.
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Section 6.15 Modifications to Senior Subordinated Notes; No
Voluntary Prepayments.
(a) Amend, modify, or waive any covenant contained in
the Senior Subordinated Notes or the Senior Subordinated
Notes Indenture if the effect of such amendment,
modification, or waiver could be to make the terms of the
Senior Subordinated Notes or the Senior Subordinated Notes
Indenture materially more onerous to the Company;
(b) Amend, modify, or waive any provision of the
Senior Subordinated Notes or the Senior Subordinated Notes
Indenture which (1) subjects the Company to any additional
material obligation, (2) increases the principal of or rate
of interest on any Senior Subordinated Note, (3)
accelerates the date fixed for any payment of principal or
interest on any Senior Subordinated Note, (4) would change
the percentage of holders of such Senior Subordinated Notes
required for any such amendment, modification, or waiver
from the percentage required on the Closing Date, or (5)
relates to the subordination provisions thereof; or
(c) Make any voluntary prepayment of, or optionally
redeem, or make any payment in defeasance of, any part of
the Senior Subordinated Notes.
Section 6.16 Intercompany Transactions. Except for (a) any
encumbrance or restriction pursuant to the Senior Subordinated
Notes Indenture, (b) in the case of clause (D) below, any
encumbrance or restriction that restricts in a customary manner
the subletting, assignment or transfer of any Property that is
subject to a lease, license or similar contract, (c) in the case
of clause (D) below, encumbrances or restrictions contained in
security agreements or mortgages permitted under Section 6.3(h)
to the extent such encumbrances or restrictions are limited to
the Property subject to such security agreements or mortgages,
(d) any restriction imposed by applicable law, and (e) customary
encumbrances or restrictions contained in agreements of a Special
Purpose Vehicle created in connection with a Permitted
Securitization that are necessary to effect such Permitted
Securitization, create and will not permit any of the Subsidiary
Guarantors to, create or otherwise cause or permit to exist or
become effective, except as may be expressly permitted or
required by the Financing Documents, any consensual encumbrance
or restriction of any kind on the ability of any such Subsidiary
Guarantor to (A) pay dividends or make any other distribution to
the Company or any Subsidiary Guarantor in respect of such
Subsidiary Guarantor's capital stock or with respect to any other
interest or participation in, or measured by, its profits, (B)
pay any indebtedness owed to the Company or any Subsidiary
Guarantor, (C) make any loan or advance to the Company or any
Subsidiary Guarantor, or (D) sell, lease or transfer any of its
Property to the Company or any Subsidiary Guarantor.
Section 6.17 Reverse Designation of Unrestricted
Subsidiaries. Designate (which designation is approved by the
Board of Directors of the Company) an Unrestricted Subsidiary as
a Subsidiary Guarantor unless Section 5.1(i) is complied with and
unless both before and after giving effect to such reverse
designation (a) no Default or Event of Default shall exist,
including, without limitation, a breach of Section 6.2, Section
6.3 or Section 6.6, (b) no default or event of default shall
exist or be continuing under any agreement, mortgage, indenture
or instrument under which there may be issued or by which there
may be secured or evidenced any Indebtedness for money borrowed
by such Unrestricted Subsidiary, (c) no default or event of
default shall exist or be continuing under the Senior
Subordinated Notes Indenture, and (d) after giving effect to such
redesignation, such Subsidiary will not meet any of the criteria
set forth in the definition of "Unrestricted Subsidiary." Notice
of any such reverse designation by the Company shall be delivered
by the Company to the Administrative Agent together with a copy
of the resolutions of the Board of Directors of the Company
approving such reverse designation and a certificate of a
Responsible Officer certifying that such reverse designation
complies with the requirements of this
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Section 6.17. Such reverse designation shall become effective
upon receipt by the Administrative Agent of the foregoing. Any
reverse designation that fails to comply with the terms of this
Section 6.17 shall be null and void and of no effect whatsoever.
Section 6.18 Rabobank Limited Guaranty. Except to increase
the amount guaranteed thereunder to an amount not in excess of
$12,000,000, amend or modify the terms of the Rabobank Limited
Guaranty in a manner which could adversely affect the Lenders
without the prior written consent of the Required Lenders.
ARTICLE 7
EVENTS OF DEFAULT
Upon the occurrence and during the continuance of any of
the following specified events (each an "Event of Default"):
Section 7.1 Payments. (a) The Company shall fail to pay
when due (including, but not limited to, by mandatory prepayment
required pursuant to Section 2.10) any principal of any Loan or
any Note, or any Reimbursement Obligation; or (b) the Company
shall fail to pay when due any interest on any Loan or Note or
any fee or any other amount payable hereunder or under the Fee
Letter or any other Financing Document and, with regard to this
clause (b), such failure to pay shall continue unremedied for a
period of three Business Days.
Section 7.2 Covenants Without Notice. The Company shall
fail to observe or perform any covenant or agreement contained in
Subsections 5.1(a), 5.1(e), 5.1(g), 5.1(i), 5.1(j) and 5.2(e)
Article 6.
Section 7.3 Other Covenants. The Company shall fail to
observe or perform any covenant or agreement contained in this
Agreement, other than those referred to in Sections 7.1 or 7.2,
and, if capable of being remedied, such failure shall remain
unremedied for 30 days after the earlier of (1) the Company's
obtaining knowledge thereof, or (2) written notice thereof shall
have been given to the Company by any Lender, any Issuing Bank or
the Administrative Agent.
Section 7.4 Other Financing Document Obligations. Default
is made in the due observance or performance by PM Holdings, the
Company or any Subsidiary of the Company of any of the covenants
or agreements contained in any Financing Document other than this
Agreement, and such default continues unremedied beyond the
expiration of any applicable grace period which may be expressly
allowed under such Financing Document.
Section 7.5 Representations. Any representation, warranty
or statement made or deemed to be made by PM Holdings, the
Company or any Subsidiary of the Company or any of PM Holdings's,
such Company's, or Subsidiary's officers herein or in any other
Financing Document, or in any certificate, request or other
document furnished pursuant to or under this Agreement or any
other Financing Document, shall have been incorrect in any
material respect as of the date when made or deemed to be made.
Section 7.6 Non-Payments of Other Indebtedness. The Company
or any of its Subsidiaries shall fail to make any payment or
payments of principal of or interest on any Indebtedness of the
Company or such Subsidiary (other than (a) the Lender
Indebtedness and (b) any trade account subject to a bona fide
dispute and the trade creditor has neither filed a lawsuit nor
caused a Lien to be placed upon
76
any Property of the Company or such Subsidiary) in excess of
$10,000,000 in the aggregate when due (whether at stated
maturity, by acceleration, on demand or otherwise) after giving
effect to any applicable grace period.
Section 7.7 Defaults Under Other Agreements. The Company or
any of its Subsidiaries shall fail to observe or perform any
covenant or agreement contained in any agreement(s) or
instrument(s) relating to Indebtedness of the Company or such
Subsidiary of $10,000,000 or more in the aggregate within any
applicable grace period, or any other event shall occur, if the
effect of such failure or other event is to accelerate, or, with
respect to the Company and the Subsidiary Guarantors, to permit
the holder of such Indebtedness or any other Person to
accelerate, the maturity of $10,000,000 or more in the aggregate
of such Indebtedness; or $10,000,000 or more in the aggregate of
any such Indebtedness shall be, or if as a result of such failure
or other event may be, required to be prepaid in whole or in part
prior to its stated maturity.
Section 7.8 Bankruptcy. PM Holdings, the Company or any of
its Subsidiaries shall commence a voluntary case concerning
itself under Title 11 of the United States Code entitled
"Bankruptcy" as now or hereafter in effect, or any successor
thereto (the "Bankruptcy Code"); or an involuntary case is
commenced against PM Holdings, the Company or any of its
Subsidiaries and the petition is not controverted within 10 days,
or is not stayed or dismissed within 60 days, after commencement
of the case; or a custodian (as defined in the Bankruptcy Code)
is appointed for, or takes charge of, all or any substantial part
of the property of PM Holdings, the Company or any of its
Subsidiaries; or PM Holdings, the Company or any of its
Subsidiaries commences any other proceeding under any
reorganization, arrangement, adjustment of debt, relief of
debtors, dissolution, insolvency or liquidation or similar law of
any jurisdiction whether now or hereafter in effect relating to
PM Holdings, the Company or such Subsidiary or there is commenced
against PM Holdings, the Company or any of its Subsidiaries any
such proceeding which remains unstayed or undismissed for a
period of 60 days; or PM Holdings, the Company or any of its
Subsidiaries is adjudicated insolvent or bankrupt; or any order
of relief or other order approving any such case or proceeding is
entered; or PM Holdings, the Company or any of its Subsidiaries
suffers any appointment of any custodian or the like for it or
any substantial part of its Property to continue undischarged or
unstayed for a period of 60 days; or PM Holdings, the Company or
any of its Subsidiaries makes a general assignment for the
benefit of creditors; or PM Holdings, the Company or any of its
Subsidiaries shall fail to pay, or shall state in writing that it
is unable to pay, or shall be unable to pay, its debts generally
as they become due; or PM Holdings, the Company or any of its
Subsidiaries shall by any act or failure to act indicate its
consent to, approval of or acquiescence in any of the foregoing;
or any corporate action is taken by PM Holdings, the Company or
any of its Subsidiaries for the purpose of effecting any of the
foregoing.
Section 7.9 Money Judgment. Judgments or orders for the
payment of money involving in the aggregate at any time a
liability (net of any insurance proceeds or indemnity payments
actually received in respect thereof prior to or within 60 days
from the entry thereof, or to be received in respect thereof in
the event any appeal thereof shall be unsuccessful) of more than
$10,000,000 or that could otherwise have a Material Adverse
Effect shall be rendered against the Company or any of the
Subsidiary Guarantors and such judgment or order shall continue
unsatisfied in accordance with the terms of such judgment or
order (in the case of a money judgment) and in effect for a
period of 60 days during which execution shall not be effectively
stayed or deferred (whether by action of a court, by agreement or
otherwise).
Section 7.10 Financing Documents. Any Material
Provision of any of the Financing Documents after delivery
thereof shall for any reason, except to the extent permitted by
the terms thereof, cease to be in full force and effect and
valid, binding and enforceable (except as enforceability may be
77
limited as stated in Section 4.3) in accordance with
its terms, or, in the case of any of the Security Instruments,
cease to create a valid and perfected Lien of the priority
contemplated thereby on any of the collateral purported to be
covered thereby, or the Company or any of its Subsidiaries (or
any other Person who may have granted or purported to grant such
Lien) shall so state in writing. As used in this Section 7.10,
"Material Provision" shall mean (a) with respect to this
Agreement, the Notes, or the PM Holdings Guaranty, any material
term, covenant, or agreement set forth therein, and (b) with
respect to any other Financing Document, any provision if the
validity and enforceability thereof is necessary for such
Financing Document to accomplish its stated, or clearly intended,
purpose or otherwise necessary in order for any Lender to enforce
any material right or remedy under any Financing Document.
Section 7.11 Change of Control. The occurrence of a
Change of Control.
Section 7.12 Merger Agreement Representations and
Warranties. Any representation or warranty made or deemed made by
PM Holdings or Acquisition Co. in the Merger Agreement shall be
or have been incorrect in any material respect as of the Closing
Date.
Section 7.13 Default Under Senior Subordinated Notes. The
Company shall fail to observe or perform any covenant or
agreement contained in the Senior Subordinated Notes or the
Senior Subordinated Notes Indenture within any applicable grace
period, if the effect of such failure or other event is to
accelerate, or to permit the holders of the Senior Subordinated
Notes or any other Person to accelerate, the maturity thereof.
Section 7.14 Senior Indebtedness. The Senior Subordinated
Notes shall cease, for any reason, to be validly subordinated to
the Lender Indebtedness, as provided in the Senior Subordinated
Notes Indenture or the Company, any Affiliate of the Company, the
trustee in respect of the Senior Subordinated Notes or the
holders of at least 25% in aggregate principal amount of the
Senior Subordinated Notes shall so assert in writing.
Section 7.15 BP Indemnity. (a) The occurrence, with respect
to any of the BP Parties, of any of the events described in
Section 7.8 or the failure of the BP Indemnity to continue to be
in full force and effect, (b) the occurrence of any event or the
existence of any condition that would have been covered by the BP
Indemnity, and (c) the existence of (a) and (b), collectively,
could reasonably be expected to have a Material Adverse Effect.
Section 7.16 Xxxxxxx Indemnity. (a) The occurrence, with
respect to any of the Xxxxxxx Parties, of any of the events
described in Section 7.8 or the failure of the Xxxxxxx Indemnity
to continue to be in full force and effect, (b) the occurrence of
any event or the existence of any condition that would have been
covered by the Xxxxxxx Indemnity, and (c) the existence of (a)
and (b), collectively, could reasonably be expected to have a
Material Adverse Effect.
Then, and in any such event, and at any time thereafter, if any
Event of Default shall then be continuing, the Administrative
Agent, upon the written or telex request of the Required Lenders,
shall, by written notice to the Company, take any or all of the
following actions, without prejudice to the rights of the
Administrative Agent, any Lender or the holder of any Note, to
enforce its claims against the Company: (a) declare the Revolving
Credit Commitment and other lending obligations, if any,
terminated, whereupon the Revolving Credit Commitment and other
lending obligations, if any, of each Lender shall terminate
immediately; or (b) declare the entire principal amount of and
all accrued interest on all Lender Indebtedness then outstanding
to be, whereupon the same shall become, forthwith due and payable
without presentment,
78
demand, protest, notice of protest or dishonor, notice
of acceleration, notice of intent to accelerate or other notice
of any kind, all of which are hereby expressly waived by the
Company, and thereupon take such action as it may deem desirable
under and pursuant to the Financing Documents, provided, that if
an Event of Default specified in Section 7.8 shall occur, the
result which would occur upon the giving of written notice by the
Administrative Agent to the Company, as specified in clauses (a)
and (b) above, shall occur automatically without the giving of
any such notice; or (c) if any Letter of Credit shall then be
outstanding, demand Cover which the Company
shall immediately pay to the Administrative Agent for deposit in
a cash collateral account maintained pursuant to the Cash
Collateral Agreement.
ARTICLE 8
THE AGENTS
Section 8.1 Appointment of Administrative Agent. Each
Lender (and each Secured Affiliate by and through its affiliated
Lender), each Co-Agent and each Issuing Bank hereby designates
Chase Bank of Texas, National Association, as Administrative
Agent to act as herein specified and as specified in the other
Financing Documents. Each Lender (and each Secured Affiliate by
and through its affiliated Lender) and each Issuing Bank hereby
irrevocably authorizes the Administrative Agent to take such
action on its behalf under the provisions of this Agreement, the
Notes, and the other Financing Documents and to exercise such
powers and to perform such duties hereunder and thereunder as are
specifically delegated to or required of the Administrative Agent
by the terms hereof and thereof and such other powers as are
reasonably incidental thereto. The Administrative Agent may
perform any of its duties hereunder by or through its agents or
employees.
Section 8.2 Limitation of Duties of Administrative
Agent. The Administrative Agent shall have no duties or
responsibilities except those expressly set forth with respect to
the Administrative Agent in this Agreement and as specified in
the other Financing Documents. Neither the Administrative Agent
nor any of its officers, directors, employees or agents shall be
liable for any action taken or omitted by it as such hereunder or
in connection herewith, unless caused by its or their gross
negligence or willful misconduct. The duties of the
Administrative Agent shall be mechanical and administrative in
nature; the Administrative Agent shall not have by reason of this
Agreement a fiduciary relationship in respect of any Lender; and
nothing in this Agreement, expressed or implied, is intended to
or shall be so construed as to impose upon the Administrative
Agent any obligations in respect of this Agreement except as
expressly set forth herein.
Section 8.3 Lack of Reliance on the Administrative Agent.
(a) Independent Investigation. Independently and
without reliance upon the Administrative Agent, each Lender, to
the extent it deems appropriate, has made and shall continue to
make (1) its own independent investigation of the financial
condition and affairs of the Company in connection with the
taking or not taking of any action in connection herewith, and
(2) its own appraisal of the creditworthiness of the Company,
and, except as expressly provided in this Agreement, and the
other Financing Documents, the Administrative Agent shall have no
duty or responsibility, either initially or on a continuing
basis, to provide any Lender with any credit or other information
with respect thereto, whether coming into its possession before
the consummation of the transactions contemplated herein or at
any time or times thereafter.
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(b) Administrative Agent Not Responsible. The
Administrative Agent shall not be responsible to any Lender or
any Issuing Bank for any recitals, statements, information,
representations or warranties herein or in any document,
certificate or other writing delivered in connection herewith or
for the execution, effectiveness, genuineness, validity,
enforceability, collectibility, priority or sufficiency of this
Agreement, the Notes, the Letters of Credit or the other
Financing Documents or the financial condition of the Company or
be required to make any inquiry concerning either the performance
or observance of any of the terms, provisions or conditions of
this Agreement, the Notes or the other Financing Documents, or
the financial condition of the Company, or the existence or
possible existence of any Default or Event of Default.
Section 8.4 Certain Rights of the Administrative Agent. If
the Administrative Agent shall request instructions from the
Required Lenders with respect to any act or action (including the
failure to act) in connection with this Agreement, the Notes and
the other Financing Documents, the Administrative Agent shall be
entitled to refrain from such act or taking such action unless
and until the Administrative Agent shall have received
instructions from the Required Lenders; and the Administrative
Agent shall not incur liability to any Person by reason of so
refraining. Without limiting the foregoing, no Lender shall have
any right of action whatsoever against the Administrative Agent
as a result of the Administrative Agent acting or refraining from
acting under this Agreement, the Notes and the other Financing
Documents in accordance with the instructions of the Required
Lenders, or to the extent required by Section 9.2, all of the
Lenders.
Section 8.5 Reliance by Administrative Agent. The
Administrative Agent shall be entitled to rely, and shall be
fully protected in relying, upon any note, writing, resolution,
notice, statement, certificate, telex, teletype or telecopier
message, cablegram, radiogram, order or other documentary
teletransmission or telephone message believed by it to be
genuine and correct and to have been signed, sent or made by the
proper Person. The Administrative Agent may consult with legal
counsel (including counsel for the Company), independent public
accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken by it in good
faith in accordance with the advice of such counsel, accountants
or experts.
Section 8.6 INDEMNIFICATION OF ADMINISTRATIVE AGENT. TO THE
EXTENT THE ADMINISTRATIVE AGENT IS NOT REIMBURSED AND INDEMNIFIED
BY THE COMPANY, EACH LENDER WILL REIMBURSE AND INDEMNIFY THE
ADMINISTRATIVE AGENT IN PROPORTION TO ITS TOTAL CREDIT
PERCENTAGE, FOR AND AGAINST ANY AND ALL LIABILITIES, OBLIGATIONS,
LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS, COSTS,
EXPENSES (INCLUDING REASONABLE COUNSEL FEES AND DISBURSEMENTS) OR
DISBURSEMENTS OF ANY KIND OR NATURE WHATSOEVER WHICH MAY BE
IMPOSED ON, INCURRED BY OR ASSERTED AGAINST THE ADMINISTRATIVE
AGENT IN PERFORMING ITS DUTIES HEREUNDER, IN ANY WAY RELATING TO
OR ARISING OUT OF THIS AGREEMENT AND BY REASON OF THE ORDINARY
NEGLIGENCE OF THE ADMINISTRATIVE AGENT, PROVIDED, THAT NO LENDER
SHALL BE LIABLE TO THE ADMINISTRATIVE AGENT FOR ANY PORTION OF
SUCH LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES,
ACTIONS, JUDGMENTS, SUITS, COSTS, EXPENSES OR DISBURSEMENTS
RESULTING FROM THE ADMINISTRATIVE AGENT'S GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT.
Section 8.7 The Administrative Agent in its Individual
Capacity. With respect to its obligations under this Agreement,
the Loans made by it and the Notes issued to it, the
Administrative Agent shall have the same rights and powers
hereunder as any other Lender or holder of a Note and may
exercise the same as though it were not performing the duties, if
any, specified herein; and the terms "Lenders," "Required
Lenders," "Revolving Credit Lenders," "Tranche A Term Loan
Lenders," "Tranche B Term Loan Lenders," "holders of Notes" or
any similar terms shall, unless the context clearly otherwise
indicates,
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include the Administrative Agent in its individual
capacity. The Administrative Agent may accept deposits from, lend
money to, and generally engage in any kind of banking, trust,
financial advisory or other business with the Company or any
affiliate of the Company as if it were not performing the duties,
if any, specified herein, and may accept fees and other
consideration from the Company for services in connection with
this Agreement and otherwise without having to account for the
same to the Lenders.
Section 8.8 May Treat Lender as Owner. The Company, the
Administrative Agent and the Issuing Banks may deem and treat
each Lender as the owner of such Lender's Note for all purposes
hereof unless and until a written notice of the assignment or
transfer thereof shall have been filed with the Administrative
Agent. Any request, authority or consent of any Person who at the
time of making such request or giving such authority or consent
is the owner of a Note shall be conclusive and binding on any
subsequent owner, transferee or assignee of such Note or any
promissory note or notes issued in exchange therefor.
Section 8.9 Successor Administrative Agent.
(a) Administrative Agent Resignation. The
Administrative Agent may resign at any time by giving written
notice thereof to the Lenders, the Issuing Banks and the Company
and may be removed at any time with or without cause by the
Required Lenders. Upon any such resignation or removal, the
Required Lenders shall have the right, upon five days' notice to
the Company, to appoint a successor Administrative Agent, subject
to the approval of the Company, such approval not to be
unreasonably withheld. If no successor Administrative Agent shall
have been so appointed by the Required Lenders, and shall have
accepted such appointment, within 30 days after the retiring
Administrative Agent's giving of notice of resignation or the
Required Lenders' removal of the retiring Administrative Agent,
then, upon five days' notice to the Company, the retiring
Administrative Agent may, on behalf of the Lenders, appoint a
successor Administrative Agent (subject to approval of the
Company, such approval not to be unreasonably withheld), which
shall be a bank which maintains an office in the United States,
or a commercial bank organized under the laws of the United
States of America or of any State thereof, or any Affiliate of
such bank, having a combined capital and surplus of at least
$250,000,000.
(b) Rights, Powers, etc. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations under this Agreement. After any
retiring Administrative Agent's resignation or removal hereunder
as Administrative Agent, the provisions of this Article 8 shall
inure to its benefit as to any actions taken or omitted to be
taken by it while it was Administrative Agent under this
Agreement.
Section 8.10 Co-Agents. No Co-Agent shall have any
duties hereunder in its capacity as such.
ARTICLE 9
MISCELLANEOUS
Section 9.1 Notices. All notices, requests and other
communications to any party hereunder shall be in writing
(including, telecopy or similar teletransmission or writing) and
shall be given to such party at its address or telecopy number
set forth on the signature pages hereof or such other address or
telecopy number as such party may hereafter specify by notice to
the Administrative Agent and the
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Company. Each such notice, request or other communication
shall be effective (a) if given by mail, 72 hours
after such communication is deposited in the mails with first
class postage prepaid, addressed as aforesaid, or (b) if given by
any other means (including, but not limited to, by air courier),
when delivered at the address specified in this Section,
provided, that notices to the Administrative Agent shall not be
effective until actually and physically received.
Section 9.2 Amendments and Waivers. Neither this Agreement
nor any other Financing Document, nor any terms hereof or
thereof, may be amended, supplemented or modified except in
accordance with the provisions of this Section. The Required
Lenders may, or, with the written consent of the Required
Lenders, the Administrative Agent shall, from time to time, (x)
enter into with the Company, written amendments, supplements or
modifications hereto and to the other Financing Documents for the
purpose of adding any provisions to this Agreement or to the
other Financing Documents or changing in any manner the
rights or obligations of the Lenders or the Company hereunder or
thereunder or (y) waive at the Company's request, on such terms
and conditions as the Required Lenders or the Administrative
Agent, as the case may be, may specify in such instrument, any of
the requirements of this Agreement or the other Financing
Documents or any Default and its consequences; provided, however,
that no such waiver and no such amendment, supplement or
modification shall:
(a) reduce the amount or extend the scheduled date of
maturity of any Loan or any Reimbursement Obligation or of
any scheduled installment thereof or reduce the stated rate
of any interest or fee payable hereunder or extend the
scheduled date of any payment thereof or modify any
provision that provides for the ratable sharing by the
Lenders of any payment or prepayment of Lender Indebtedness
to provide for a non-ratable sharing thereof or the right
of the Term Lenders to decline acceptance of prepayment or
increase the amount or extend the expiration date of the
Revolving Credit Commitments or Term Loan Commitments or
amend, modify or waive any provision of Section 2.19, in
each case without the prior written consent of each Lender
directly affected thereby;
(b) change the currency in which any Loan or
Reimbursement Obligation is payable or amend, modify or
waive any provision of this Section 9.2 or reduce the
percentage specified in the definition of Required Lenders,
in each case without the written consent of all of the
Lenders;
(c) release (1) any Subsidiary Guarantor from its
obligations under the Guarantee and Collateral Agreement,
(2) PM Holdings from its obligations under the PM Holdings
Guaranty or the PM Holdings Pledge Agreement, or (3) all or
substantially all of the Collateral, without the written
consent of all of the Lenders, except as expressly
permitted hereby, provided, that the Administrative Agent
shall and may release (without consent from the Lenders)
any Collateral sold, transferred or otherwise disposed of
as permitted by Section 6.4;
(d) amend, modify or waive any provision of Article 8
without the written consent of the Administrative Agent; or
(e) amend, modify or waive (1) any Letter of Credit
Liability without the written consent of the applicable
Issuing Bank or (2) any Letter of Credit without the
consent of each Revolving Credit Lender if such Letter of
Credit, after giving effect to such amendment, modification
or waiver, would no longer satisfy the requirements hereof
if such Letter of Credit was being issued ab initio at such
time, provided, that in all cases other than clauses (1) or
(2), only the
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consent of the applicable Issuing Bank shall
be required to amend, modify or waive any Letter of Credit.
Any waiver and any amendment, supplement or modification
pursuant to this Section 9.2 shall apply to each of the
Lenders and shall be binding upon the Company, the Lenders,
the Administrative Agent and all future holders of the
Loans. In the case of any waiver, the Company, the Lenders
and the Administrative Agent shall be restored to their
former position and rights hereunder and under the other
Financing Documents, and any Default waived shall be deemed
to be cured and not continuing; but no such waiver shall
extend to any subsequent or other Default, or impair any
right consequent thereon.
Section 9.3 No Waiver; Remedies Cumulative. No failure
or delay on the part of the Company or the Administrative Agent
or any Lender or any holder of any Note in exercising any right
or remedy under this Agreement or any other Financing Document
and no course of dealing between the Company and the
Administrative Agent or any Lender or any holder of any Note
shall operate as a waiver thereof, nor shall any single or
partial exercise of any right or remedy under the Notes, this
Agreement or any other Financing Document preclude any other or
further exercise thereof or the exercise of any other right or
remedy under the Notes, this Agreement or any other Financing
Document. The rights and remedies herein expressly provided are
cumulative and not exclusive of any rights or remedies which the
Company, the Administrative Agent or any Lender would otherwise
have. No notice to or demand on the Company not required under
the Notes, this Agreement or any other Financing Document in any
case shall entitle the Company to any other or further notice or
demand in similar or other circumstances or constitute a waiver
of the rights of the Administrative Agent or the Lenders to any
other or further action in any circumstances without notice or
demand.
Section 9.4 Payment of Expenses, Indemnities, etc. The
Company agrees to (and shall be liable for):
(a) Expenses. Whether or not the transactions hereby
contemplated are consummated, pay all reasonable
out-of-pocket costs and expenses of the Administrative
Agent and each Issuing Bank in the administration (both
before and after the execution hereof and including advice
of counsel for the Administrative Agent as to the rights
and duties of the Administrative Agent and the Lenders with
respect thereto) of, and in connection with the
preparation, execution and delivery of, recording or filing
of, preservation of rights under, enforcement of,
refinancing, renegotiation or restructuring of, this
Agreement, the Notes, and the other Financing Documents and
any amendment, waiver or consent relating thereto
(including, but not limited to, the reasonable fees and
disbursements of counsel for the Administrative Agent) and
promptly reimburse the Administrative Agent and the Lenders
for all amounts expended, advanced, or incurred by the
Administrative Agent or the Lenders to satisfy any
obligation of the Company, PM Holdings, or the Subsidiary
Guarantors under this Agreement or any other Financing
Document. After Default, the Company shall also pay all
reasonable out-of-pocket costs and expenses of the Lenders
in connection with the preservation of rights under,
enforcement of, refinancing, renegotiation or restructuring
of, this Agreement, the Notes, and the other Financing
Documents and any amendment, waiver or consent relating
thereto (including, but not limited to, the reasonable fees
and disbursements of counsel for the Lenders);
(b) INDEMNIFICATION. INDEMNIFY THE ADMINISTRATIVE
AGENT, THE ISSUING BANKS AND EACH LENDER, EACH OF THEIR
RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES,
AGENTS AND AFFILIATES FROM, HOLD EACH OF THEM HARMLESS
AGAINST,
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AND PROMPTLY UPON DEMAND PAY OR REIMBURSE EACH OF THEM FOR,
ANY AND ALL ACTIONS, SUITS, PROCEEDINGS (INCLUDING ANY
INVESTIGATIONS, LITIGATION OR INQUIRIES), CLAIMS, COSTS,
LOSSES, LIABILITIES, DAMAGES OR EXPENSES OF ANY KIND OR
NATURE WHATSOEVER WHICH MAY BE INCURRED BY OR ASSERTED
AGAINST OR INVOLVE ANY OF THEM (WHETHER OR NOT ANY OF THEM
IS DESIGNATED A PARTY THERETO) AS A RESULT OF, ARISING OUT
OF OR IN ANY WAY RELATED TO (1) ANY ACTUAL OR PROPOSED USE
BY THE COMPANY OR ANY SUBSIDIARY OF THE COMPANY OF THE
PROCEEDS OF ANY OF THE LOANS; OR (2) ANY OTHER ASPECT OF
THIS AGREEMENT, THE MERGER, THE NOTES, AND THE FINANCING
DOCUMENTS, INCLUDING BUT NOT LIMITED TO THE REASONABLE FEES
AND DISBURSEMENTS OF COUNSEL (INCLUDING ALLOCATED COSTS OF
INTERNAL COUNSEL) AND ALL OTHER EXPENSES INCURRED IN
CONNECTION WITH INVESTIGATING, DEFENDING OR PREPARING TO
DEFEND ANY SUCH ACTION, SUIT, PROCEEDING (INCLUDING ANY
INVESTIGATIONS, LITIGATION OR INQUIRIES) OR CLAIM, AND
INCLUDING ALL ACTIONS, SUITS, PROCEEDINGS (INCLUDING ANY
INVESTIGATIONS, LITIGATION OR INQUIRIES), CLAIMS, COSTS,
LOSSES, LIABILITIES, DAMAGES OR EXPENSES ARISING BY REASON
OF ORDINARY NEGLIGENCE OF ANY OF THE ADMINISTRATIVE AGENT,
THE ISSUING BANKS AND EACH LENDER, EACH OF THEIR RESPECTIVE
OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES, AGENTS AND
AFFILIATES; PROVIDED, HOWEVER, THE PROVISIONS OF THIS
SECTION 9.4(B) SHALL NOT APPLY TO ANY ACTION, SUITS,
PROCEEDINGS, CLAIMS, COSTS, LOSSES, LIABILITIES, DAMAGES,
OR EXPENSES TO THE EXTENT, BUT ONLY TO THE EXTENT, CAUSED
BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE PARTY
SEEKING INDEMNIFICATION;
(c) ENVIRONMENTAL INDEMNIFICATION. INDEMNIFY AND HOLD
HARMLESS FROM TIME TO TIME THE ADMINISTRATIVE AGENT, THE
ISSUING BANKS AND THE LENDERS, EACH PERSON CLAIMING BY,
THROUGH, UNDER OR ON ACCOUNT OF ANY OF THE FOREGOING AND
THE RESPECTIVE DIRECTORS, OFFICERS, COUNSEL, EMPLOYEES,
AGENTS, AFFILIATES, SUCCESSORS AND ASSIGNS OF EACH OF THE
FOREGOING FROM AND AGAINST ANY AND ALL LOSSES, CLAIMS, COST
RECOVERY ACTIONS, ADMINISTRATIVE ORDERS OR PROCEEDINGS,
DAMAGES AND LIABILITIES (WHICH RELATE TO OR ARISE AS A
RESULT OF THE LOANS, THE LETTERS OF CREDIT OR ANY FINANCING
DOCUMENT) TO WHICH ANY SUCH PERSON MAY BECOME SUBJECT AND
INCLUDING ANY AND ALL LOSSES, CLAIMS, COST RECOVERY
ACTIONS, ADMINISTRATIVE ORDERS OR PROCEEDINGS, DAMAGES AND
LIABILITIES (WHICH RELATE TO OR ARISE AS A RESULT OF THE
LOANS, THE LETTERS OF CREDIT OR ANY FINANCING DOCUMENT)
ARISING BY REASON OF THE ORDINARY NEGLIGENCE OF THE
ADMINISTRATIVE AGENT, THE ISSUING BANKS AND THE LENDERS,
EACH PERSON CLAIMING BY, THROUGH, UNDER OR ON ACCOUNT OF
ANY OF THE FOREGOING AND THE RESPECTIVE DIRECTORS,
OFFICERS, COUNSEL, EMPLOYEES, AGENTS, AFFILIATES,
SUCCESSORS AND ASSIGNS OF EACH OF THE FOREGOING (1) UNDER
ANY ENVIRONMENTAL LAW APPLICABLE TO THE COMPANY OR ANY OF
ITS SUBSIDIARIES OR ANY OF THEIR RESPECTIVE PROPERTIES,
INCLUDING WITHOUT LIMITATION, THE TREATMENT OR DISPOSAL OF
HAZARDOUS SUBSTANCES ON ANY OF THEIR RESPECTIVE PROPERTIES,
(2) AS A RESULT OF THE BREACH OR NON-COMPLIANCE BY THE
COMPANY OR ANY OF ITS SUBSIDIARIES WITH ANY ENVIRONMENTAL
LAW APPLICABLE TO THE COMPANY OR ANY OF ITS SUBSIDIARIES,
(3) DUE TO PAST OWNERSHIP BY THE COMPANY OR ANY OF ITS
SUBSIDIARIES OF ANY OF THEIR RESPECTIVE PROPERTIES OR PAST
ACTIVITY ON ANY OF THEIR RESPECTIVE PROPERTIES OR PAST
ACTIVITY ON ANY OF THEIR RESPECTIVE PROPERTIES WHICH,
THOUGH LAWFUL AND FULLY PERMISSIBLE AT THE TIME, COULD
RESULT IN PRESENT LIABILITY, (4) THE PRESENCE, USE,
RELEASE, STORAGE, TREATMENT OR DISPOSAL OF HAZARDOUS
SUBSTANCES ON OR AT ANY OF THE PROPERTIES OWNED OR OPERATED
BY THE COMPANY OR ANY OF ITS SUBSIDIARIES, OR (5)
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ANY OTHER ENVIRONMENTAL, HEALTH OR SAFETY CONDITION IN
CONNECTION WITH THIS AGREEMENT, THE NOTES OR ANY OTHER FINANCING
DOCUMENT; AND
(d) ENVIRONMENTAL WAIVER. WITHOUT LIMITING THE
FOREGOING PROVISIONS, THE COMPANY HEREBY DOES WAIVE,
RELEASE AND COVENANT NOT TO BRING AGAINST ANY OF THE
PERSONS INDEMNIFIED IN THIS SECTION 9.4 ANY DEMAND, CLAIM,
COST RECOVERY ACTION OR LAWSUIT THEY MAY NOW OR HEREAFTER
HAVE OR ACCRUE (WHICH RELATE TO OR ARISE AS A RESULT OF THE
LOANS, THE LETTERS OF CREDIT OR ANY FINANCING DOCUMENT)
ARISING FROM (1) ANY ENVIRONMENTAL LAW NOW OR HEREAFTER
ENACTED (INCLUDING THOSE APPLICABLE TO THE COMPANY OR ANY
OF ITS SUBSIDIARIES), (2) THE PRESENCE, USE, RELEASE,
STORAGE, TREATMENT OR DISPOSAL OF HAZARDOUS SUBSTANCES ON
OR AT ANY OF THE PROPERTIES OWNED OR OPERATED BY THE
COMPANY OR ANY OF ITS SUBSIDIARIES, OR (3) THE BREACH OR
NONCOMPLIANCE BY THE COMPANY WITH ANY ENVIRONMENTAL LAW OR
ENVIRONMENTAL COVENANT APPLICABLE TO THE COMPANY OR ANY OF
ITS SUBSIDIARIES.
If and to the extent that the obligations of the Company under
this Section are unenforceable for any reason, the Company hereby
agrees to make the maximum contribution to the payment and
satisfaction of such obligations which is permissible under
applicable law. The Company's obligations under this Section
shall survive any termination of this Agreement and the payment
of the Notes.
Section 9.5 Right of Setoff. In addition to and not in
limitation of all rights of offset that any Lender or Issuing
Bank may have under applicable law, each Lender or other holder
of a Note, or any other Lender Indebtedness shall, upon the
occurrence of any Event of Default and at any time during the
continuance thereof and whether or not such Lender, such Issuing
Bank or such holder has made any demand or the Company's
obligations are matured, have the right at any time and from time
to time, without notice to the Company (any such notice being
expressly waived by the Company) 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 any Lender or Issuing Bank to or for the credit or the account
of the Company against any and all of the Lender Indebtedness
owing to such Lender or Issuing Bank then outstanding, subject to
the provisions of Section 2.19.
Section 9.6 Benefit of Agreement. The Notes, this Agreement
and the other Financing Documents shall be binding upon and inure
to the benefit of and be enforceable by the respective successors
and assigns of the parties hereto, provided, that the Company may
not assign or transfer any of its interest hereunder or
thereunder without the prior written consent of the Lenders.
Section 9.7 Successors and Assigns; Participations and
Assignments.
(a) Any Lender may, in the ordinary course of its
business and in accordance with applicable law, at any time sell
to one or more banks, financial institutions, or investment funds
("Participants") participating interests in any Loan owing to
such Lender, any Note held by such Lender, any Revolving Credit
Commitment of such Lender or any other interest of such Lender
hereunder and under the other Financing Documents. In the event
of any such sale by a Lender of a participating interest to a
Participant, such Lender's obligations under this Agreement to
the other parties to this Agreement shall remain unchanged, such
Lender shall remain solely responsible for the performance
thereof, such Lender shall remain the holder of any such Loan
(and any Note evidencing such Loan) for all purposes under this
Agreement and the other Financing Documents and the Company and
the Administrative Agent shall continue to deal solely and
directly with such Lender in connection with such Lender's rights
and obligations
85
under this Agreement and the other Financing Documents. Any
agreement pursuant to which any Lender shall sell any such
participating interest shall provide that such Lender shall
retain the sole right and responsibility to exercise such
Lender's rights and enforce the Company's obligations hereunder,
including the right to consent to any amendment, supplement,
modification or waiver of any provision of this Agreement or any
of the other Financing Documents, provided, that such
participation agreement may provide that such Lender will not
agree to any amendment, supplement, modification or waiver
described in clause (a), (b) or (c) of the proviso to the second
sentence of Section 9.2 without the consent of the Participant.
The Company agrees that each Lender shall be entitled to the
benefits of Sections 2.15, 2.16, 2.18, 2.20 and 9.4 without
regard to whether it has granted any participating interests, and
that all amounts payable to a Lender under such Sections shall be
determined as if such Lender had not granted any such
participating interests. Each Participant shall have the rights
of set-off against the Lender Indebtedness and similar rights or
Liens to the same extent as may be available to the
Administrative Agent or the Lenders.
(b) Any Lender may make, carry or transfer Loans at,
to or for the account of, any of its branch offices or the office
of an Affiliate of such Lender.
(c) Any Lender may, in accordance with applicable law,
at any time and from time to time assign to any Lender or any
Affiliate or Approved Fund thereof, or, with the prior written
consent of the Company and the Administrative Agent (which in
each case shall not be unreasonably withheld), to an additional
bank, financial institution or investment fund (an "Assignee")
all or any part of its rights and obligations under this
Agreement and any Notes, including, without limitation, its
Revolving Credit Commitment, Loans, and Letter of Credit
Liabilities pursuant to an Assignment and Acceptance,
substantially in the form of Exhibit G (each an "Assignment and
Acceptance"), executed by such Assignee, such assigning Lender
(and, in the case of any Assignee that is not then a Lender or an
Affiliate thereof, by the Company and the Administrative Agent)
and delivered to the Administrative Agent for its acceptance and
recording in the Register, provided, that (1) (unless the Company
and the Administrative Agent otherwise consent in writing) no
such transfer to an Assignee (other than a Lender or any
Affiliate or Approved Fund thereof) shall be in a principal
amount less than (A) $5,000,000 for a transfer by a Tranche B
Term Loan Lender, and (B) $10,000,000 in the aggregate for a
transfer by any other Lender (or, if less, the full amount of
such assigning Lender's Term Loans, Revolving Credit Loans,
Letter of Credit Liabilities, and Revolving Credit Commitment),
(2) after giving effect to any such assignments by a Revolving
Credit Lender or a Tranche A Term Loan Lender, the Revolving
Credit Percentage of the assigning Lender and the Assignee must
equal such Person's Tranche A Term Loan Percentage and (3) if any
Lender assigns all or any part of its rights and obligations
under this Agreement to one of its Affiliates in connection with
or in contemplation of the sale or other disposition of its
interest in such Affiliate, the Company's and the Administrative
Agent's prior written consent shall be required for such
assignment, and (4) any consent of the Company otherwise required
under this paragraph shall not be required if a Default has
occurred and is continuing. Upon such execution, delivery,
acceptance and recording, from and after the effective date
determined pursuant to such Assignment and Acceptance, (x) the
Assignee thereunder shall be a party hereto and, to the extent
provided in such Assignment and Acceptance, have the rights and
obligations of a Lender hereunder with a Revolving Credit
Commitment, Revolving Credit Exposure, and Term Loans, as set
forth therein, and (y) the assigning Lender thereunder shall be
released from its obligations under this Agreement to the extent
that such obligations shall have been expressly assumed by the
Assignee pursuant to such Assignment and Acceptance (and, in the
case of an Assignment and Acceptance covering all or the
remaining portion of an assigning Lender's rights and obligations
under this Agreement, such assigning Lender shall cease to be a
party hereto but shall nevertheless continue to be entitled to
the benefits of Sections 2.16, 2.18, 2.20, and 9.4).
Notwithstanding the foregoing, no Assignee, which as of the date
of any assignment to it pursuant to this Section 9.7(c) would be
entitled to receive any greater payment under Section 2.16 or
2.20
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than the assigning Lender would have been entitled to
receive as of such date under such Sections with respect to the
rights assigned, shall be entitled to receive such payments
unless the Company has expressly consented in writing to waive
the benefit of this provision at the time of the Assignment. The
foregoing sentence shall not preclude any Assignee from receiving
greater payments under Section 2.16 or 2.20 than the assigning
Lender would have been entitled to receive after the date of such
assignment.
(d) The Administrative Agent, on behalf of the
Company, shall maintain at its address referred to in Section 9.1
a copy of each Assignment and Acceptance delivered to it and a
register (the "Register") for the recordation of the names and
addresses of the Lenders and the Revolving Credit Commitment and
of, and the principal amount of the Loans and Letter of Credit
Liabilities owing to, and any Notes evidencing such Loans owned
by, each Lender from time to time. Notwithstanding anything in
this Agreement to the contrary, the Company, the Administrative
Agent and the Lenders shall treat each Person whose name is
recorded in the Register as the owner of any Loan, any Notes and
the Revolving Credit Commitments and recorded therein for all
purposes of this Agreement. The Register shall be available for
inspection by the Company or any Lender at any reasonable time
and from time to time upon reasonable prior notice.
(e) Notwithstanding anything in this Agreement to the
contrary, no assignment under Section 9.7(c) of any rights or
obligations under or in respect of the Loans, Reimbursement
Obligations or any Notes evidencing such Loans shall be effective
unless and until the Administrative Agent shall have recorded the
assignment in the Register pursuant to this Section 9.7(e). Upon
its receipt of an Assignment and Acceptance executed by an
assigning Lender and an Assignee (and, in the case of an Assignee
that is not then a Lender or an Affiliate thereof, by the Company
and the Administrative Agent), together with payment to the
Administrative Agent of a registration and processing fee of
$3,500 (which fee need not be paid in the case of any assignment
to an Affiliate or Approved Fund of the assigning Lender and
which shall not be a cost subject to reimbursement under Section
9.4 or otherwise hereunder), the Administrative Agent shall (1)
promptly accept such Assignment and Acceptance and (2) on the
effective date determined pursuant thereto record the information
contained therein in the Register and give prompt notice of such
acceptance and recordation to the Lenders and the Company. On or
prior to such effective date, the assigning Lender shall
surrender any outstanding Notes held by it, all or a portion of
which are being assigned, and the Company, shall, upon the
request to the Administrative Agent by the assigning Lender or
the Assignee, as applicable, execute and deliver to the
Administrative Agent (in exchange for the outstanding Notes of
the assigning Lender) a new Revolving Credit Note, Tranche A Term
Note and/or Tranche B Term Note, as the case may be, to the order
of such Assignee in an amount equal to (A) in the case of a
Revolving Credit Note, the greater of (i) the amount of such
Assignee's Revolving Credit Commitment and (ii) the aggregate
principal amount of the Revolving Credit Exposure of such
Assignee, (B) in the case of a Tranche A Term Note, the amount of
such Assignee's Tranche A Term Loans, and (C) in the case of a
Tranche B Term Note, the amount of such Assignee's Tranche B Term
Loans, in each case with respect to the relevant Loan, Letter of
Credit Liability or Revolving Credit Commitment after giving
effect to such Assignment and Acceptance and, if the assigning
Lender has retained a Revolving Credit Commitment, Revolving
Credit Exposure, or Term Loan hereunder, a new Revolving Credit
Note, Tranche A Term Note and/or Tranche B Term Note, as the case
may be, to the order of the assigning Lender in an amount equal
to (i) in the case of a Revolving Credit Note, the greater of a)
the amount of such Lender's Revolving Credit Commitment and b)
the aggregate principal amount of the Revolving Credit Exposure
of such Lender, (ii) in the case of a Tranche A Term Note, the
amount of such Lender's Tranche A Term Loans, and (iii) in the
case of a Tranche B Term Note, the amount of such Lender's
Tranche B Term Loans, in each case with respect to the relevant
Loan, Revolving Credit Exposure or Revolving Credit Commitment
after giving effect to such Assignment and Acceptance. Any such
new Notes shall be dated such effective date and shall otherwise
be in the form of
87
the Note replaced thereby. Any Notes surrendered by the assigning
Lender shall be returned by the Administrative Agent to the
Company marked "canceled".
(f) The Company authorizes each Lender to disclose to
any participant or Assignee (each, a "Transferee") and any
prospective Transferee, provided, that any such Transferee or
potential Transferee has signed a confidentiality agreement
substantially similar to the provisions of Section 9.13, any and
all information in such Lender's possession concerning the
Company and its Affiliates which has been delivered to such
Lender by or on behalf of the Company pursuant to this Agreement
or which has been delivered to such Lender by or on behalf of the
Company in connection with such Lender's credit evaluation of the
Company and its Affiliates prior to becoming a party to this
Agreement. No assignment or participation made or purported to be
made to any Transferee shall be effective without the prior
written consent of the Company if it would require it to make any
filing with any Governmental Authority or qualify any Loan or
Note under the laws of any jurisdiction, and the Company shall be
entitled to request and receive such information and assurances
as it may reasonably request from any Lender or any Transferee to
determine whether any such filing or qualification is required or
whether any assignment or participation is otherwise in
accordance with applicable law.
(g) Any Lender may at any time grant, pledge or assign
a security interest in all or a portion of its rights under this
Agreement to secure obligations of such Lender, including any
such grant, pledge or assignment to a Federal Reserve Bank, and
this Section 9.7 shall not apply to any such grant, pledge or
assignment of a security interest, provided, that no such grant,
pledge or assignment of a security interest shall release a
Lender from any of its obligations hereunder or substitute any
such assignee for such Lender as a party hereto.
Section 9.8 GOVERNING LAW; SUBMISSION TO JURISDICTION; ETC.
(A) GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER AND UNDER THE NOTES SHALL BE
CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW, OR ANY SIMILAR SUCCESSOR PROVISION
THERETO, BUT EXCLUDING ALL OTHER CONFLICT-OF-LAWS RULES)AND TO
THE EXTENT CONTROLLING, LAWS OF THE UNITED STATES OF AMERICA.
(b) SUBMISSION TO JURISDICTION. ANY LEGAL ACTION OR
PROCEEDING WITH RESPECT TO THIS AGREEMENT, THE NOTES OR THE OTHER
FINANCING DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE STATE OF
NEW YORK OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN
DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS
AGREEMENT, THE COMPANY HEREBY ACCEPTS FOR ITSELF AND IN RESPECT
OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION
OF THE AFORESAID COURTS. THE COMPANY HEREBY IRREVOCABLY WAIVES
ANY OBJECTION, INCLUDING, BUT NOT LIMITED TO, ANY OBJECTION TO
THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF
ANY SUCH ACTION OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS.
(c) WAIVER OF CONSEQUENTIAL DAMAGES. TO THE MAXIMUM
EXTENT ALLOWED BY APPLICABLE LAW, EACH OF THE COMPANY, THE
ADMINISTRATIVE AGENT, THE ISSUING BANKS AND THE LENDERS (I)
IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN
ANY SUCH LITIGATION ANY SPECIAL, EXEMPLARY, PUNITIVE OR
CONSEQUENTIAL DAMAGES, OR DAMAGES OTHER THAN, OR IN ADDITION TO,
ACTUAL DAMAGES; (II) CERTIFIES THAT NO PARTY HERETO NOR ANY
88
REPRESENTATIVE OR COUNSEL FOR ANY PARTY HERETO HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, OR IMPLIED THAT SUCH PARTY WOULD NOT, IN
THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER;
AND (III) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO
THIS AGREEMENT, THE OTHER FINANCING DOCUMENTS AND THE
TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY BASED UPON, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS CONTAINED IN
THIS SECTION.
(d) Designation of Process Agent. The Company hereby
irrevocably designates CT Corporation System, with an office on
the date hereof at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, as
the designee, appointee and process agent of the Company to
receive, for and on behalf of the Company, service of process in
such respective jurisdictions in any legal action or proceeding
with respect to this Agreement, the Notes, or the other Financing
Documents. It is understood that a copy of such process served on
such agent will be promptly forwarded by mail to the Company at
its address set forth opposite its signature below, but the
failure of the Company to receive such copy shall not affect in
any way the service of such process. The Company further
irrevocably consents to the service of process of any of the
aforementioned courts in any such action or proceeding by the
mailing of copies thereof by registered or certified mail,
postage prepaid, to the Company at its said address, such service
to become effective on the earlier to occur of (i) actual receipt
of such service of process and (ii) 30 days after such mailing.
(e) Service of Process. Nothing herein shall affect
the right of the Administrative Agent or any Lender or any holder
of a Note to serve process in any other manner permitted by law
or to commence legal proceedings or otherwise proceed against the
Company in any other jurisdiction.
Section 9.9 Independent Nature of Lenders' Rights. The
amounts payable at any time hereunder to each Lender shall be a
separate and independent debt, and each Lender shall be entitled
to protect and enforce its rights arising out of this Agreement, and it
shall not be necessary for any other Lender to be joined as an
additional party in any proceeding for such purpose.
Section 9.10 Invalidity. In the event that any one or more
of the provisions contained in the Notes, this Agreement or in
any other Financing Document shall, for any reason, be held
invalid, illegal or unenforceable in any respect, (a) the Company
agrees that such invalidity, illegality or unenforceability shall
not affect any other provision of the Notes, this Agreement or
any other Financing Document and (b) the Company and the
Administrative Agent (acting on behalf and at the direction of
the Lenders) will negotiate in good faith to amend such provision
so as to be legal, valid, and enforceable.
Section 9.11 Renewal, Extension or Rearrangement. All
provisions of this Agreement and of any other Financing Documents
relating to the Notes or other Lender Indebtedness shall apply
with equal force and effect to each and all promissory notes
hereafter executed which in whole or in part represent a renewal,
extension for any period, increase or rearrangement of any part
of the Lender Indebtedness originally represented by the Notes,
or of any part of such other Lender Indebtedness.
Section 9.12 Interest. It is the intention of the parties
hereto to conform strictly to usury laws applicable to the
Administrative Agent, the Issuing Banks and the Lenders
(collectively, the "Financing Parties") and the Transactions.
Accordingly, if the Transactions would be usurious as to any
Financing Party under laws applicable to it, then,
notwithstanding anything to the contrary in the Notes, this
Agreement or in any other Financing Document or agreement entered
into in connection with the Transactions or as security for the
Notes, it is agreed as follows: (a) the aggregate of all
consideration which constitutes interest under law applicable to
any Financing Party that is contracted for, taken, reserved,
charged or received by
89
such Financing Party under the Notes, this Agreement or under any
of such other Financing Documents or agreements or otherwise in
connection with the Transactions shall under no circumstances
exceed the maximum amount allowed by such applicable law, (b) in
the event that the maturity of the Notes is accelerated for any
reason, or in the event of any required or permitted prepayment,
then such consideration that constitutes interest under law
applicable to any Financing Party may never include more than the
maximum amount allowed by such applicable law, and (c) excess
interest, if any, provided for in this Agreement or otherwise in
connection with the Transactions shall be canceled automatically
by such Financing Party and, if theretofore paid, shall be
credited by such Financing Party on the principal amount of the
Company's Indebtedness to such Financing Party (or, to the extent
that the principal amount of the Company's Indebtedness to such
Financing Party shall have been or would thereby be paid in full,
refunded by such Financing Party to the Company). The right to
accelerate the maturity of the Notes does not include the right
to accelerate any interest which has not otherwise accrued on the
date of such acceleration, and the Financing Parties do not
intend to collect any unearned interest in the event of
acceleration. All sums paid or agreed to be paid to the Financing
Parties for the use, forbearance or detention of sums included in
the Lender Indebtedness shall, to the extent permitted by law
applicable to such Financing Party, be amortized, prorated,
allocated and spread throughout the full term of the Notes until
payment in full so that the rate or amount of interest on account
of the Lender Indebtedness does not exceed the applicable usury
ceiling, if any. As used in this Section, the terms "applicable
law" or "laws applicable to any Financing Party" shall mean the
law of any jurisdiction whose laws may be mandatorily applicable
notwithstanding other provisions of this Agreement, or law of the
United States of America applicable to any Financing Party and
the Transactions which would permit such Financing Party to
contract for, charge, take, reserve or receive a greater amount
of interest than under such jurisdiction's law. To the extent
that Article 5069-1.04 of the Texas Revised Civil Statutes is
relevant to any Financing Party for the purpose of determining
the Highest Lawful Rate, such Financing Party hereby elects to
determine the applicable rate ceiling under such Article by the
indicated (weekly) rate ceiling from time to time in effect,
subject to such Financing Party's right subsequently to change
such method in accordance with applicable law.
Section 9.13 Confidential Information. The Administrative
Agent and each Lender agree that all documentation and other
information made available by the Company to the Administrative
Agent or such Lender under the terms of this Agreement shall
(except to the extent such documentation or other information is
publicly available or hereafter becomes publicly available other
than by action of the Administrative Agent or such Lender, or was
theretofore known or hereinafter becomes known to the
Administrative Agent or such Lender independent of any disclosure
thereto by the Company) be held in the strictest confidence in
accordance with its customary procedures by the Administrative
Agent or such Lender and used solely in the administration and
enforcement of the Loans from time to time outstanding from such
Lender to the Company and in the prosecution of defense of legal
proceedings arising in connection herewith, provided, that (a)
the Administrative Agent or such Lender may disclose
documentation and information to the Administrative Agent and/or
to any other Lender which is a party to this Agreement or any
Affiliates thereof, (b) the Administrative Agent or such Lender
may disclose such documentation or other information to any other
bank or other Person to which such Lender sells or proposes to
make an assignment or sell a participation in its Loans hereunder
if such other bank or Person, prior to such disclosure, agrees in
writing to be bound by the terms of a confidentiality agreement
substantially similar to the provisions of this Section 9.13, and
(c) such Lender may disclose such documentation or other
information to any of its direct or indirect contractual
counterparties in swap agreements or such contractual
counterparty's professional advisor if such contractual
counterparty or professional advisor to such contractual
counterparty agrees in writing to be bound by the terms of a
confidentiality agreement substantially similar to the provision
of this Section 9.13. Notwithstanding the foregoing, nothing
contained herein shall be construed to prevent the Administrative
Agent or a Lender from (1) making disclosure of any
90
information (A) if required to do so by applicable law
or regulation, (B) to any governmental agency or regulatory body
(including any self-regulatory agency or body) having or claiming
to have authority to regulate or oversee any aspect of such
Lender's business or that of such Lender's corporate parent or
affiliates in connection with the exercise of such authority or
claimed authority, (C) pursuant to any subpoena or if otherwise
compelled in connection with any litigation or administrative
proceeding, (D) to correct any false or misleading information
which may become public concerning such Person's relationship to
the Company, or (E) to the extent the Administrative Agent or
such Lender or its counsel deems necessary or appropriate to
effect or preserve its security for any Lender Indebtedness or to
enforce any remedy provided in the Financing Documents, the Notes
or this Agreement or otherwise available by law; or (2) making,
on a confidential basis, such disclosures as such Lender
reasonably deems necessary or appropriate to its legal counsel or
accountants (including outside auditors). If the Administrative
Agent or such Lender is compelled to disclose such confidential
information in a proceeding requesting such disclosure, the
Administrative Agent or such Lender shall seek to obtain
assurance that such confidential treatment will be accorded such
information; provided, however, that the Lender shall have no
liability for the failure to obtain such treatment.
Section 9.14 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED
ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER
PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.
Section 9.15 ENTIRE AGREEMENT. THE NOTES, THIS
AGREEMENT AND THE OTHER FINANCING DOCUMENTS EMBODY THE ENTIRE
AGREEMENT AND UNDERSTANDING BETWEEN THE ADMINISTRATIVE AGENT, THE
ISSUING BANKS OR THE LENDERS AND THE OTHER RESPECTIVE PARTIES
HERETO AND THERETO AND SUPERSEDE ALL PRIOR AGREEMENTS AND
UNDERSTANDINGS BETWEEN SUCH PARTIES RELATING TO THE SUBJECT
MATTER HEREOF AND THEREOF AND MAY NOT BE CONTRADICTED BY EVIDENCE
OF PRIOR, CONTEMPORANEOUS AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
Section 9.16 Attachments. The exhibits, schedules and
annexes attached to this Agreement are incorporated herein and
shall be considered a part of this Agreement for the purposes
stated herein, except that in the event of any conflict between
any of the provisions of such exhibits and the provisions of this
Agreement, the provisions of this Agreement shall prevail.
Section 9.17 Counterparts. This Agreement may be
executed in any number of counterparts and by the different
parties hereto on separate counterparts, each of which when so
executed and delivered shall be an original but all of which
shall together constitute one and the same instrument.
Section 9.18 Survival of Indemnities. All covenants,
agreements, representations and warranties made by the Company
herein and in the certificates or other instruments delivered in
connection with or pursuant to this Agreement shall be considered
to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the
making of any Loans and issuance of any Letters of Credit,
regardless of any investigation made by any such other party or
on its behalf and
91
notwithstanding that the Administrative Agent, any Issuing Bank
or any Lender may have had notice or knowledge of any Default or
incorrect representation or warranty at the time any credit is
extended hereunder, and shall continue in full force and effect
as long as the principal of or any accrued interest on any Loan
or any fee or any other amount payable under this Agreement is
outstanding and unpaid or any Letter of Credit is outstanding and
so long as the Commitments have not expired or terminated. The
provisions of Sections 2.16, 2.18, 2.20 and 9.4 shall survive and
remain in full force and effect regardless of the consummation of
the transactions contemplated hereby, the repayment of the Loans,
the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any provision
hereof.
Section 9.19 Headings Descriptive. The headings of the
several sections and subsections of this Agreement, and Table of
Contents are inserted for convenience only and shall not in any
way affect the meaning or construction of any provision of this
Agreement.
Section 9.20 Satisfaction Requirement. If any agreement,
certificate, instrument or other writing, or any action taken or
to be taken, is by the terms of this Agreement required to be
satisfactory to any party, the determination of such satisfaction
shall be made by such party in its sole and exclusive judgment
exercised reasonably and in good faith.
Section 9.21 EXCULPATION PROVISIONS. EACH OF THE
PARTIES HERETO SPECIFICALLY AGREES THAT IT HAS A DUTY TO READ
THIS AGREEMENT AND THE OTHER FINANCING DOCUMENTS AND AGREES THAT
IT IS CHARGED WITH NOTICE AND KNOWLEDGE OF THE TERMS OF THIS
AGREEMENT AND THE OTHER FINANCING DOCUMENTS; THAT IT HAS IN FACT
READ THIS AGREEMENT AND IS FULLY INFORMED AND HAS FULL NOTICE AND
KNOWLEDGE OF THE TERMS, CONDITIONS AND EFFECTS OF THIS AGREEMENT;
THAT IT HAS BEEN REPRESENTED BY LEGAL COUNSEL OF ITS CHOICE
THROUGHOUT THE NEGOTIATIONS PRECEDING ITS EXECUTION OF THIS
AGREEMENT AND THE OTHER FINANCING DOCUMENTS; AND HAS RECEIVED THE
ADVICE OF ITS ATTORNEYS IN ENTERING INTO THIS AGREEMENT AND THE
OTHER FINANCING DOCUMENTS; AND THAT IT RECOGNIZES THAT CERTAIN OF
THE TERMS OF THIS AGREEMENT AND THE OTHER FINANCING DOCUMENTS
RESULT IN ONE PARTY ASSUMING THE LIABILITY INHERENT IN SOME
ASPECTS OF THE TRANSACTION AND RELIEVING THE OTHER PARTY OF ITS
RESPONSIBILITY FOR SUCH LIABILITY. EACH PARTY HERETO AGREES AND
COVENANTS THAT IT WILL NOT CONTEST THE VALIDITY OR ENFORCEABILITY
OF ANY EXCULPATORY PROVISION OF THIS AGREEMENT AND THE OTHER
FINANCING DOCUMENTS ON THE BASIS THAT THE PARTY HAD NO NOTICE OR
KNOWLEDGE OF SUCH PROVISION OR THAT THE PROVISION IS NOT
"CONSPICUOUS."
Section 9.22 Secured Affiliate. For purposes of this
Agreement and all other Financing Documents (other than
applicable Hedge Agreements), if a Secured Affiliate of a Lender
has entered into one or more Hedge Agreements with the Company or
any its Subsidiaries, then to the extent that such Secured
Affiliate has rights or obligations (or if the affiliated Lender,
rather than the Secured Affiliate, were the counter-party to the
applicable Hedge Agreement, such rights or obligations that such
Lender has) hereunder or under any other Financing Document
(other than applicable Hedge Agreements), such affiliated Lender
shall be the agent and attorney-in-fact for such Secured
Affiliate with regard to any such rights and obligations, or
deemed rights and obligations, as if such Lender were the
counter-party to the applicable Hedge Agreement including, but
not limited to, the following: (a) all distributions or payments
in respect of Collateral owing to such Secured Affiliate shall be
distributed or paid to such Lender, (b) all representations,
statements or disclaimers made herein or in any Financing
Document by or to such Lender shall be deemed to have been made
by or to such Secured Affiliate, (c) all obligations incurred by
such Lender that would have been incurred by the Secured
Affiliate if it were a party hereto (including, but not
92
limited to, obligations under Section 8.6) shall be the
obligations of such Lender, and such Lender, as the agent and
attorney-in-fact of its Secured Affiliate, will make any and all
payments owing to the Administrative Agent with respect to such
obligations or deemed obligations of its Secured Affiliate. Each
such Lender represents, warrants and covenants to and with the
Administrative Agent that such Lender has, or at all applicable
times will have, full power and authority to act as agent and
attorney-in-fact for its Secured Affiliates. Under no
circumstance shall any Secured Affiliate have any voting rights
hereunder and the voting rights of any affiliated Lender shall
not be increased by virtue of the obligations owing to any such
Secured Affiliate.
Section 9.23 Issuing Banks. For purposes of this Agreement
and all other Financing Documents (other than applicable
Applications), if an affiliate of Chase has issued one or more
Letters of Credit for the account of the Company, then to the
extent that such affiliate has rights or obligations (or if
Chase, rather than the affiliate, were the Issuing Bank, such
rights or obligations that Chase has) hereunder or under any
other Financing Document (other than applicable Applications),
Chase shall be the agent and attorney-in-fact for such affiliate
with regard to any such rights and obligations, or deemed rights
and obligations, as if Chase has issued the applicable Letters of
Credit and were the counterparty to the applicable Application
including, but not limited to, the following: (a) all
distributions or payments in respect of Collateral owing to such
affiliate shall be distributed or paid to Chase, (b) all
representations, statements or disclaimers made herein or in any
Financing Document by or to Chase shall be deemed to have been
made by or to such affiliate, (c) all obligations incurred by
Chase that would have been incurred by the affiliate if it were a
party hereto (including, but not limited to, obligations under
Section 8.6) shall be the obligations of Chase, and Chase, as the
agent and attorney-in-fact of its affiliate, will make any and
all payments owing to the Administrative Agent with respect to
such obligations or deemed obligations of its affiliate. Chase
represents, warrants and covenants to and with the Administrative
Agent that Chase has, or at all applicable times will have, full
power and authority to act as agent and attorney-in-fact for its
affiliates. Under no circumstance shall any affiliate of Chase
issuing a Letter of Credit have any voting rights hereunder and
the voting rights of any such affiliate shall not be increased by
virtue of the obligations owing to such affiliate.
93
IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be duly executed as of the date first above
written.
COMPANY: PURINA XXXXX, INC.
By: /s/ Xxxxx X. Xxxxxx
--------------------
Xxxxx X. Xxxxxx
President and Chief
Executive Officer
Address: 0000 Xxxxx Xxxxxx Xxxx
Xx. Xxxxx, XX 00000
Attention: Xxxx XxXxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
ADMINISTRATIVE AGENT, ISSUING CHASE BANK OF TEXAS, NATIONAL
BANK AND LENDER: ASSOCIATION, as an Issuing Bank,
a Lender and as the
Administrative Agent
By: /s/ X.X. Xxxxx
---------------
X.X. Xxxxx
Vice President
Address: c/o Chase Securities Inc.
000 Xxxxxx Xxxxxx,
00xx Xxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
[Signature Page to Purina Credit Agreement - Page 1]
CO-AGENTS AND LENDERS: MERCANTILE BANK NATIONAL
ASSOCIATION, as a Co-Agent
and a Lender
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: AVP
Address: Mercantile Bank National
Association
7th and Washington/
Tram 00-0
Xx. Xxxxx, Xxxxxxxx
00000-0000
Attention: Xxxxxx X. Xxxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
[Signature Page to Purina Credit Agreement - Page 2]
BANK OF AMERICA NT & SA, as a
Co-Agent and a Lender
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: V.P.
Address: Bank of America NT & SA
000 X. XxXxxxx Xxxxxx,
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
[Signature Page to Purina Credit Agreement - Page 3]
ABN AMRO BANK N.V., as a Co-Agent
and a Lender
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Group Vice President
and Director
By: /s/ Xxxxxx X. Xxxxxx
---------------------
Name: Xxxxxx X. Xxxxxx
Title: Group Vice President
Address: ABN AMRO Bank N.V.
000 Xxxxx XxXxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Loans Administration
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
[Signature Page to Purina Credit Agreement - Page 4]
THE BANK OF NOVA SCOTIA, as a
Co-Agent and a Lender
By: /s/ F.C.H. Xxxxx
-----------------
Name: F.C.H. Xxxxx
Title: Senior Manager Loan Operations
Address: The Bank of Nova Scotia
000 Xxxxxxxxx Xxxxxx, X.X.,
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
[Signature Page to Purina Credit Agreement - Page 5]
BANK OF SCOTLAND, as a Co-Agent
and a Lender
By: /s/ Xxxxx Xxxx Tat
--------------------
Name: Xxxxx Xxxx Tat
Title: Vice President
Address: Bank of Scotland
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx/
Xxxxxxxx Xxxxx
Telephone: (000) 000-0000/0875
Telecopy: (000) 000-0000
[Signature Page to Purina Credit Agreement - Page 6]
NATIONSBANK, N.A., as a Co-Agent
and a Lender
By: /s/ Xxxxxx X. Xxxxxx
---------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
Address: NationsBank, N.A.
000 Xxxx Xxxxxx,
00xx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
[Signature Page to Purina Credit Agreement - Page 7]
CREDIT LYONNAIS CHICAGO BRANCH,
as a Co-Agent and a Lender
By: /s/ Xxxxx X. Xxxxx
-------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
Address: Credit Lyonnais
Chicago Branch
000 X. Xxxxxx Xxxxxx,
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
[Signature Page to Purina Credit Agreement - Page 8]
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A. "RABOBANK
NEDERLAND," NEW YORK BRANCH,
as a Co-Agent and a Lender
By: /s/ Xxxxx X. Xxxx
------------------
Name: Xxxxx X. Xxxx
Title: VP
By: /s/ Xxxxxx X. Xxxxxx
---------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
Address: Rabobank Nederand,
New York Branch
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx/
Xxxxxxxx Xxxxx
Telephone: (000) 000-0000/
(000) 000-0000
Telecopy: (000) 000-0000
[Signature Page to Purina Credit Agreement - Page 9]
LENDERS: CREDIT AGRICOLE INDOSUEZ,
as a Lender
By: /s/ Xxxx Xxxxxx
----------------
Name: Xxxx Xxxxxx
Title: Senior Vice President
Branch Manager
By: /s/ Xxxxx Xxxxx
----------------
Name: Xxxxx Xxxxx
Title: F.V.P. Head of Corporate
Banking Chicago
Address: Credit Agricole Indosuez
00 Xxxx Xxxxxx,
00xx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxx Xxxx/
Xxxxx Xxxxxxxxxx
Telephone: (000) 000-0000/7424
Telecopy: (000) 000-0000
[Signature Page to Purina Credit Agreement - Page 10]
BANQUE PARIBAS, as a Lender
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
---------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Authorized
By: /s/ Xxxxxx X. Xxxxxx
---------------------
Name: Xxxxxx X. Xxxxxx
Title: Assistant Vice President
Address: Banque Paribas
0000 Xxxxx Xxxxxx,
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
[Signature Page to Purina Credit Agreement - Page 11]
[PAGE INTENTIONALLY LEFT BLANK]
[Signature Page to Purina Credit Agreement - Page 12]
XXXXXXX XXXXX SENIOR FLOATING
RATE FUND, INC.
By: /s/ Xxxx X. Xxxxxxx
--------------------
Name: Xxxx X. Xxxxxxx
Title: Authorized
Address: Xxxxxxx Xxxxx Senior
Floating Rate Fund,
Inc.
000 Xxxxxxxx Xxxx Xxxx,
Xxxx 0X
Xxxxxxxxxx,
Xxx Xxxxxx 00000
Attention: Xxxxxxx Xxxx
Telephone: (000) 000-0000/
(000) 000-0000
Telecopy: (000) 000-0000
[Signature Page to Purina Credit Agreement - Page 13]
ARCHIMEDES FUNDING, L.L.C.
By: ING Capital Advisors, Inc.
as Collateral Manager
By: /s/ Xxxxx X. Xxxx
------------------
Name: Xxxxx X. Xxxx
Title: AVP Portfolio Manager
Address: Archimedes Funding, L.L.C.
c/o ING Capital Advisors, Inc.,
as Collateral Manager
000 X. Xxxxx Xxxxxx,
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx-Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
[Signature Page to Purina Credit Agreement - Page 14]
CYPRESS TREE BOSTON PARTNERS
By: /s/ Xxxx Xxxxxxxxx
-------------------
Name: Xxxx Xxxxxxxxx
Title:
Address: Cypress Tree Boston
Partners
c/o BankBoston, N.A.
000 Xxxxxxx Xxxxxx,
XX 1-9-2
Xxxxxx, XX 00000
Attention: Xxxx Xxxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
[Signature Page to Purina Credit Agreement - Page 15]
PILGRIM AMERICA PRIME RATE TRUST
By:PILGRIM AMERICA INVESTMENTS, INC.,
as its Investment Manager
By: /s/ Xxxxx X. Xxxxxx
--------------------
Name: Xxxxx X. Xxxxxx
Title: Assistant Portfolio Manager
Address: Pilgrim America Prime
Rate Trust
Two Renaissance Square
00 Xxxxx Xxxxxxx Xxxxxx,
Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attention: Xxxxxx Xxxxxxx
Telecopy: (000) 000-0000
With a copy to
Address: State Street Bank
and Trust Company
Alternative Structures Unit
Boston, MA
Attention: Xxxxx Xxxxx
Ref: Pilgrim America Prime
Rate Trust
Telecopy: (000) 000-0000/5367/5368
[Signature Page to Purina Credit Agreement - Page 16]
DEEPROCK & COMPANY
By: XXXXX XXXXX MANAGEMENT, AS
INVESTMENT ADVISOR
By: /s/ Payson X. Xxxxxxxxx
------------------------
Name: Payson X. Xxxxxxxxx
Title: Vice President
Address: Deeprock & Company
c/o Xxxxx Xxxxx Management
00 Xxxxxxx Xxxxxx,
0xx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx/Prime
Rate Reserves
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
With a copy to
Address: State Street Bank
& Trust Company
Corporate Trust Division
Xxx Xxxxxxxxxx Xxxxx
Xxxxx Xxxxxx, XX 00000
Attention:Xxxxxxx XxXxxxx
Telecopy: (000) 000-0000 or
(000) 000-0000
[Signature Page to Purina Credit Agreement - Page 17]
KZH HOLDING CORPORATION III
By: /s/ Xxxxxxxx Xxxxxx
--------------------
Name: Xxxxxxxx Xxxxxx
Title: Authorized Agent
Address: KZH Holding Corporation III
c/o The Chase Manhattan Bank
Loan & Agency Services
1 Chase Manhattan Plaza
- 8th Floor
New York, New York 10081
Attention: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
With copy to:
Address: KZH Holding Corporation III
x/x Xxx Xxxxx Xxxxxxxxx Bank
000 Xxxx 00xx Xxxxxx -
00xx Xxxxx Xxx Xxxx, XX
00000
Attention: Xxxxxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
[Signature Page to Purina Credit Agreement - Page 18]
KZH - SOLEIL-2 CORPORATION
By: /s/ Xxxxxxxx Xxxxxx
--------------------
Name: Xxxxxxxx Xxxxxx
Title: Authorized Agent
Address: KZH Holding Corporation III
c/o The Chase Manhattan Bank
Loan & Agency Services
1 Chase Manhattan Plaza
- 8th Floor
New York, New York 10081
Attention: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
With copy to:
Address: KZH Holding Corporation III
x/x Xxx Xxxxx Xxxxxxxxx Bank
000 Xxxx 00xx Xxxxxx -
00xx Xxxxx Xxx Xxxx, XX
00000
Attention: Xxxxxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
[Signature Page to Purina Credit Agreement - Page 19]
ANNEX I
LOANS AND COMMITMENTS
Lender Revolving Tranche A Tranche B Total
Loan Loan Loan Commitment
Commitment Commitment Commitment
----------------------------------------------------------------------------
Chase Bank
of Texas $10,000,000 $10,000,000 $45,000,000 $65,000,000
N.A.
----------------------------------------------------------------------------
Mercantile
Bank NA $ 9,375,000 $ 9,375,000 $18,750,000
----------------------------------------------------------------------------
Bank of
America NT $ 9,375,000 $ 9,375,000 $18,750,000
SA
----------------------------------------------------------------------------
ABN Amro
Bank NV $ 9,375,000 $ 9,375,000 $18,750,000
----------------------------------------------------------------------------
The Bank
of Nova $ 9,375,000 $ 9,375,000 $18,750,000
Scotia
----------------------------------------------------------------------------
Bank of
Scotland $ 9,375,000 $ 9,375,000 $18,750,000
----------------------------------------------------------------------------
NationsBank,
N.A. $ 9,375,000 $ 9,375,000 $18,750,000
----------------------------------------------------------------------------
Credit Lyonnais
Chicago $9,375,000 $ 9,375,000 $18,750,000
Branch
----------------------------------------------------------------------------
Rabobank
Nederland $ 9,375,000 $ 9,375,000 $18,750,000
----------------------------------------------------------------------------
Credit
Agricole $ 7,500,000 $ 7,500,000 $15,000,000
Indosuez
----------------------------------------------------------------------------
Banque
Paribas $ 7,500,000 $ 7,500,000 $15,000,000
----------------------------------------------------------------------------
Xxxxxxx
Xxxxx Senior $5,500,000 $5,500,000
Floating
Rating Fund,
Inc.
----------------------------------------------------------------------------
Deeprock &
Company $1,000,000 $1,000,000
----------------------------------------------------------------------------
Archimedes
Funding, $10,000,000 $10,000,000
L.L.C.
----------------------------------------------------------------------------
KZH Holding $19,500,000 $19,500,000
Corporation III
----------------------------------------------------------------------------
Cypress Tree Boston $4,000,000 $4,000,000
Partners
----------------------------------------------------------------------------
Pilgrim
America Prime $9,000,000 $9,000,000
Rate Trust
----------------------------------------------------------------------------
KZH-Soleil-2
Corporation $6,000,000 $6,000,000
----------------------------------------------------------------------------
Total
Commitment $100,000,000 $100,000,000 $100,000,000 $300,000,000
----------------------------------------------------------------------------
EXHIBIT A
---------
FORM OF REVOLVING CREDIT NOTE
-----------------------------
$__________ ___________, 1998
PURINA XXXXX, INC., a Delaware corporation (the "Company"),
for value received, promises and agrees to pay to (the "Lender"),
or order, at the Payment Office of CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION (the "Administrative Agent"), at 000 Xxxx Xxxxxx,
Xxxxxxx, Xxxxx 00000, the principal sum of
___________________________________ DOLLARS
($___________________), or such lesser amount as shall equal the
aggregate unpaid principal amount of the Revolving Credit Loans
made by Lender hereunder to the Company under the Credit
Agreement, as hereafter defined, in lawful money of the United
States of America and in immediately available funds, on the
dates and in the principal amounts provided in the Credit
Agreement referred to below, and to pay interest on the unpaid
principal amount as provided in the Credit Agreement for such
Revolving Credit Loans made by the Lender to the Company under
the Credit Agreement, at such office, in like money and funds,
for the period commencing on the date of each such Revolving
Credit Loan until such Revolving Credit Loan shall be paid in
full, at the rates per annum and on the dates provided in the
Credit Agreement.
In addition to and cumulative of any payments required to
be made against this note pursuant to the Credit Agreement, this
note, including all principal and accrued interest then unpaid,
shall be due and payable on the Revolving Credit Maturity Date.
All payments shall be applied first to accrued interest and the
balance to principal, except as otherwise expressly provided in
the Credit Agreement. Prepayments on this note shall be applied
in the manner set forth in the Credit Agreement.
This note is one of the Revolving Credit Notes referred to
in the Credit Agreement dated as of the ___________, 1998, by and
among the Company, Chase Bank of Texas, National Association,
individually, as an Issuing Bank and as Administrative Agent, and
financial institutions parties thereto (including the Lender)
(such Credit Agreement, together with all amendments or
supplements thereto, being the "Credit Agreement"). This note
evidences the Revolving Credit Loans made by the Lender
thereunder and shall be governed by the Credit Agreement.
Capitalized terms used but not defined in this note and which are
defined in the Credit Agreement shall have the meanings herein as
are assigned in the Credit Agreement.
The Lender is hereby authorized by the Company to endorse
on Schedule A (or a continuation thereof) attached to this note,
the amount and date of each payment or prepayment of principal of
each Revolving Credit Loan received by the Lender, and interest
rates applicable to each Revolving Credit Loan, provided, that
any failure by the Lender to make any such endorsement shall not
affect the obligations of the Company under the Credit Agreement
or under this note in respect of such Revolving Credit Loans.
Except only for any notices which are specifically required
by the Credit Agreement or the other Financing Documents, the
Company and any and all co-makers, endorsers, guarantors and
sureties severally waive notice (including but not limited to
notice of intent to accelerate and notice of acceleration, notice
of protest and notice of dishonor), demand, presentment for
payment, protest, diligence in collecting and the filing of suit
for the purpose of fixing liability, and consent that the time of
payment hereof may be extended
A-1
and re-extended from time to time without notice to any of them.
Each such person agrees that his, her or its liability on or with
respect to this note shall not be affected by any release of or
change in any guaranty or security at any time existing or by any
failure to perfect or maintain perfection of any lien against or
security interest in any such security or the partial or complete
enforceability of any guaranty or other surety obligation, in
each case in whole or in part, with or without notice and before
or after maturity.
The Credit Agreement provides for the acceleration of the
maturity of this note upon the occurrence of certain events and
for prepayment of Revolving Credit Loans upon the terms and
conditions specified therein. Reference is made to the Credit
Agreement for all other pertinent purposes.
This note is issued pursuant to and is entitled to the
benefits of the Credit Agreement and is secured by the Security
Instruments.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE
GOVERNED BY THE LAW OF THE STATE OF NEW YORK AND THE UNITED
STATES OF AMERICA FROM TIME TO TIME IN EFFECT.
PURINA XXXXX, INC.
By:_______________________________
Name:
Title:
A-2
SCHEDULE A
This Note evidences Revolving Credit Loans made by the Lender
under the within-described Credit Agreement to the Company, which
Revolving Credit Loans are in the principal amounts, at the
interest rates (and interest periods), and were made and repaid
or prepaid on the dates set forth below:
Principal
Amount of Type
Date Revolving of Interest Interest
Made Credit Loan Loan Period Rate
---- ----------- ---- -------- --------
____ ______ ____ ______ ______
____ ______ ____ ______ ______
____ ______ ____ ______ ______
____ ______ ____ ______ ______
____ ______ ____ ______ ______
____ ______ ____ ______ ______
____ ______ ____ ______ ______
____ ______ ____ ______ ______
____ ______ ____ ______ ______
____ ______ ____ ______ ______
____ ______ ____ ______ ______
____ ______ ____ ______ ______
____ ______ ____ ______ ______
____ ______ ____ ______ ______
____ ______ ____ ______ ______
____ ______ ____ ______ ______
____ ______ ____ ______ ______
____ ______ ____ ______ ______
____ ______ ____ ______ ______
____ ______ ____ ______ ______
____ ______ ____ ______ ______
____ ______ ____ ______ ______
____ ______ ____ ______ ______
____ ______ ____ ______ ______
Date of Amount
Maturity Payment or Paid or Balance
Date Prepayment Prepaid Outstanding
-------- ---------- ------- -----------
____ ______ ______ ______
____ ______ ______ ______
____ ______ ______ ______
____ ______ ______ ______
____ ______ ______ ______
____ ______ ______ ______
____ ______ ______ ______
____ ______ ______ ______
____ ______ ______ ______
____ ______ ______ ______
____ ______ ______ ______
____ ______ ______ ______
____ ______ ______ ______
____ ______ ______ ______
____ ______ ______ ______
____ ______ ______ ______
____ ______ ______ ______
____ ______ ______ ______
____ ______ ______ ______
____ ______ ______ ______
____ ______ ______ ______
____ ______ ______ ______
____ ______ ______ ______
____ ______ ______ ______
Schedule X-0
XXXXXXX X-0
-----------
FORM OF TRANCHE A TERM NOTE
---------------------------
$__________ ______________, 1998
Purina Xxxxx, Inc., a Delaware corporation (the "Company"),
for value received, promises and agrees to pay to (the "Lender"),
or order, at the Payment Office of Chase Bank of Texas, National
Association, at 000 Xxxx Xxxxxx, Xxxxxxx, Xxxxx 00000, the
principal sum of ___________________________________ DOLLARS
($___________________), in lawful money of the United States of
America and in immediately available funds, in installments on
the dates and in the principal amounts provided in the Credit
Agreement referred to below, and to pay interest on the unpaid
principal amount of the Tranche A Term Loans made by the Lender
to the Company under the Credit Agreement, at such office, in
like money and funds, for the period commencing on the date of
each such Tranche A Term Loan until such Tranche A Term Loan
shall be paid in full, at the rates per annum and on the dates
provided in the Credit Agreement.
In addition to and cumulative of any payment required to be
made against this note pursuant to the Credit Agreement, this
note, including all principal and accrued interest then unpaid
thereon, shall be due and payable on the Tranche A Term Loan
Maturity Date. All payments shall be applied first to accrued
interest and the balance to principal, except as otherwise
expressly provided in the Credit Agreement. Prepayments on this
note shall be applied in the manner set forth in the Credit
Agreement.
This note is one of the Tranche A Term Notes referred to in
the Credit Agreement dated as of the _____________, 1998 by and
among the Company, Chase Bank of Texas, National Association,
individually, as an Issuing Bank, and as Administrative Agent,
and the financial institutions parties thereto (including the
Lender) (such Credit Agreement, together with all amendments or
supplements thereto, being the "Credit Agreement"). This note
evidences the Tranche A Term Loans made by the Lender thereunder
and shall be governed by the Credit Agreement. Capitalized terms
used but not defined in this note and which are defined in the
Credit Agreement shall have the meanings herein as are assigned
in the Credit Agreement.
The Lender is hereby authorized by the Company to endorse
on Schedule A (or a continuation thereof) attached to this note,
the amount and date of each payment or prepayment of principal of
each Tranche A Term Loan received by the Lender and the interest
rates applicable to each Tranche A Term Loan, provided, that any
failure by the Lender to make any such endorsement shall not
affect the obligations of the Company under the Credit Agreement
or under this note in respect of such Tranche A Term Loans.
Except only for any notices which are specifically required
by the Credit Agreement or the other Financing Documents, the
Company and any and all co-makers, endorsers, guarantors and
sureties severally waive notice (including but not limited to
notice of intent to accelerate and notice of acceleration, notice
of protest and notice of dishonor), demand, presentment for
payment, protest, diligence in collecting and the filing of suit
for the purpose of fixing liability, and consent that the time of
payment hereof may be extended and re-extended from time to time
without notice to any of them. Each such person agrees that his,
her or its liability on or with respect to this note shall not be
affected by any release of or change in any guaranty or security
at any time existing or by any failure to perfect or maintain
perfection of any lien against or
B-1-1
security interest in any such security or the partial or complete
enforceability of any guaranty or other surety obligation, in
each case in whole or in part, with or without notice and before
or after maturity.
The Credit Agreement provides for the acceleration of the
maturity of this note upon the occurrence of certain events and
for prepayment of Tranche A Term Loans upon the terms and
conditions specified therein. Reference is made to the Credit
Agreement for all other pertinent purposes.
This note is issued pursuant to and is entitled to the
benefits of the Credit Agreement and is secured by the Security
Instruments.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE
GOVERNED BY THE LAW OF THE STATE OF NEW YORK AND THE UNITED
STATES OF AMERICA FROM TIME TO TIME IN EFFECT.
PURINA XXXXX, INC.
By:_________________________
Name:
Title:
B-1-2
SCHEDULE A
----------
This Note evidences Tranche A Term Loans made by the Lender under
the within-described Credit Agreement to the Company, which
Tranche A Term Loans are in the principal amounts, at the
interest rates (and interest periods), and were made and repaid
or prepaid on the dates set forth below:
Principal Type
Date Amount of of Interest Interest
Made Loan Loan Period Rate
---- --------- ---- -------- --------
____ ______ ____ ______ ______
____ ______ ____ ______ ______
____ ______ ____ ______ ______
____ ______ ____ ______ ______
____ ______ ____ ______ ______
____ ______ ____ ______ ______
____ ______ ____ ______ ______
____ ______ ____ ______ ______
____ ______ ____ ______ ______
____ ______ ____ ______ ______
____ ______ ____ ______ ______
____ ______ ____ ______ ______
____ ______ ____ ______ ______
____ ______ ____ ______ ______
____ ______ ____ ______ ______
____ ______ ____ ______ ______
____ ______ ____ ______ ______
____ ______ ____ ______ ______
____ ______ ____ ______ ______
____ ______ ____ ______ ______
____ ______ ____ ______ ______
____ ______ ____ ______ ______
____ ______ ____ ______ ______
____ ______ ____ ______ ______
Date of Amount
Maturity Payment or Paid or Balance
Date Prepayment Prepaid Outstanding
-------- ---------- ------- -----------
____ ______ ______ ______
____ ______ ______ ______
____ ______ ______ ______
____ ______ ______ ______
____ ______ ______ ______
____ ______ ______ ______
____ ______ ______ ______
____ ______ ______ ______
____ ______ ______ ______
____ ______ ______ ______
____ ______ ______ ______
____ ______ ______ ______
____ ______ ______ ______
____ ______ ______ ______
____ ______ ______ ______
____ ______ ______ ______
____ ______ ______ ______
____ ______ ______ ______
____ ______ ______ ______
____ ______ ______ ______
____ ______ ______ ______
____ ______ ______ ______
____ ______ ______ ______
____ ______ ______ ______
Schedule X-0
XXXXXXX X-0
-----------
FORM OF TRANCHE B TERM NOTE
---------------------------
$__________ ______________, 1998
Purina Xxxxx, Inc., a Delaware corporation (the "Company"),
for value received, promises and agrees to pay to (the "Lender"),
or order, at the Payment Office of Chase Bank of Texas, National
Association, at 000 Xxxx Xxxxxx, Xxxxxxx, Xxxxx 00000, the
principal sum of ___________________________________ DOLLARS
($___________________), in lawful money of the United States of
America and in immediately available funds, in installments on
the dates and in the principal amounts provided in the Credit
Agreement referred to below, and to pay interest on the unpaid
principal amount of the Tranche B Term Loans made by the Lender
to the Company under the Credit Agreement, at such office, in
like money and funds, for the period commencing on the date of
each such Tranche B Term Loan until such Tranche B Term Loan
shall be paid in full, at the rates per annum and on the dates
provided in the Credit Agreement.
In addition to and cumulative of any payment required to be
made against this note pursuant to the Credit Agreement, this
note, including all principal and accrued interest then unpaid
thereon, shall be due and payable on the Tranche B Term Loan
Maturity Date. All payments shall be applied first to accrued
interest and the balance to principal, except as otherwise
expressly provided in the Credit Agreement. Prepayments on this
note shall be applied in the manner set forth in the Credit
Agreement.
This note is one of the Tranche B Term Notes referred to in
the Credit Agreement dated as of _______________, 1998, by and
among the Company, Chase Bank of Texas, National Association,
individually, as an Issuing Bank, and as Administrative Agent,
and the financial institutions parties thereto (including the
Lender) (such Credit Agreement, together with all amendments or
supplements thereto, being the "Credit Agreement"). This note
evidences the Tranche B Term Loans made by the Lender thereunder
and shall be governed by the Credit Agreement. Capitalized terms
used but not defined in this note and which are defined in the
Credit Agreement shall have the meanings herein as are assigned
in the Credit Agreement.
The Lender is hereby authorized by the Company to endorse
on Schedule A (or a continuation thereof) attached to this note,
the amount and date of each payment or prepayment of principal of
each Tranche B Term Loan received by the Lender and the interest
rates applicable to each Tranche B Term Loan, provided, that any
failure by the Lender to make any such endorsement shall not
affect the obligations of the Company under the Credit Agreement
or under this note in respect of such Tranche B Term Loans.
Except only for any notices which are specifically required
by the Credit Agreement or the other Financing Documents, the
Company and any and all co-makers, endorsers, guarantors and
sureties severally waive notice (including but not limited to
notice of intent to accelerate and notice of acceleration, notice
of protest and notice of dishonor), demand, presentment for
payment, protest, diligence in collecting and the filing of suit
for the purpose of fixing liability, and consent that the time of
payment hereof may be extended and re-extended from time to time
without notice to any of them. Each such person agrees that his,
her or its liability on or with respect to this note shall not be
affected by any release of or change in any guaranty or security
at any time existing or by any failure to perfect or maintain
perfection of any lien against or
B-2-1
security interest in any such security or the partial or complete
enforceability of any guaranty or other surety obligation, in
each case in whole or in part, with or without notice and before
or after maturity.
The Credit Agreement provides for the acceleration of the
maturity of this note upon the occurrence of certain events and
for prepayment of Tranche B Term Loans upon the terms and
conditions specified therein. Reference is made to the Credit
Agreement for all other pertinent purposes.
This note is issued pursuant to and is entitled to the
benefits of the Credit Agreement and is secured by the Security
Instruments.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE
GOVERNED BY THE LAW OF THE STATE OF NEW YORK AND THE UNITED
STATES OF AMERICA FROM TIME TO TIME IN EFFECT.
PURINA XXXXX, INC.
By:___________________________
Name:
Title:
B-2-2
SCHEDULE A
----------
This Note evidences Tranche B Term Loans made by the Lender under
the within-described Credit Agreement to the Company, which Term
Loans are in the principal amounts, at the interest rates (and
interest periods), and were made and repaid or prepaid on the
dates set forth below:
Principal Type
Date Amount of of Interest Interest
Made Loan Loan Period Rate
---- --------- ---- -------- --------
____ ______ ____ ______ ______
____ ______ ____ ______ ______
____ ______ ____ ______ ______
____ ______ ____ ______ ______
____ ______ ____ ______ ______
____ ______ ____ ______ ______
____ ______ ____ ______ ______
____ ______ ____ ______ ______
____ ______ ____ ______ ______
____ ______ ____ ______ ______
____ ______ ____ ______ ______
____ ______ ____ ______ ______
____ ______ ____ ______ ______
____ ______ ____ ______ ______
____ ______ ____ ______ ______
____ ______ ____ ______ ______
____ ______ ____ ______ ______
____ ______ ____ ______ ______
____ ______ ____ ______ ______
____ ______ ____ ______ ______
____ ______ ____ ______ ______
____ ______ ____ ______ ______
____ ______ ____ ______ ______
____ ______ ____ ______ ______
Date of Amount
Maturity Payment or Paid or Balance
Date Prepayment Prepaid Outstanding
-------- ---------- ------- -----------
____ ______ ______ ______
____ ______ ______ ______
____ ______ ______ ______
____ ______ ______ ______
____ ______ ______ ______
____ ______ ______ ______
____ ______ ______ ______
____ ______ ______ ______
____ ______ ______ ______
____ ______ ______ ______
____ ______ ______ ______
____ ______ ______ ______
____ ______ ______ ______
____ ______ ______ ______
____ ______ ______ ______
____ ______ ______ ______
____ ______ ______ ______
____ ______ ______ ______
____ ______ ______ ______
____ ______ ______ ______
____ ______ ______ ______
____ ______ ______ ______
____ ______ ______ ______
____ ______ ______ ______
Schedule A-1
EXHIBIT C
---------
FORM OF TAX SHARING AGREEMENTS
------------------------------
SUB-GROUP TAX SHARING AGREEMENT
and
PARENT TAX SHARING AGREEMENT
C-1
EXHIBIT D
---------
FORM OF BORROWING REQUEST
-------------------------
____________, 19__
Purina Xxxxx, Inc., a Delaware corporation (the "Company"),
hereby requests a Borrowing on the date and in the amount as
follows:
$_______________ of Revolving Credit Loans, $___________ of
which is requested as a Base Rate Loan and $___________ of
which is requested as a Eurodollar Loan having an Interest
Period of _____ months. Requested funding date:
________________
[$_______________ of Tranche A Term Loans, $___________ of
which is requested as a Base Rate Loan and $___________ of
which is requested as a Eurodollar Loan having an Interest
Period of _____ months. Requested funding date:
________________]*
[$_______________ and Tranche B Term Loans, $___________ of
which is requested as a Base Rate Loan and $___________ of
which is requested as a Eurodollar Loan having an Interest
Period of _____ months. Requested funding date:
________________]*
pursuant to the Credit Agreement dated as of ____________, 1998
(as the same may be amended or supplemented, the "Credit
Agreement") among the Company, Chase Bank of Texas, National
Association, individually, as an Issuing Bank, and as
Administrative Agent, and the financial institutions now or
hereafter parties thereto. The undersigned certifies that they
are the ______________ of the Company, and that as such the
undersigned is authorized to execute this certificate on behalf
of the Company. The undersigned further certifies, represents and
warrants on behalf of the Company that (x) the Company is
entitled to receive the requested Loans under the terms and
conditions of the Credit Agreement, (y) the calculation made on
the date hereof and set forth below is accurate and complete, and
(z) after giving effect to any requested Revolving Credit Loan or
the issuance of any requested Letter of Credit, the aggregate
principal amount of outstanding Revolving Credit Loans and the
outstanding Letter of Credit Liabilities (computed on line (1)
below) will not exceed the Maximum Available Amount (computed on
line (3) below).
1. Principal amount of all Revolving
Credit Loans and Letter of Credit
Liabilities outstanding (after giving
effect to the requested Revolving
Credit Loan or the issuance of any
requested Letter of Credit). $____________(1)
2. Maximum Revolving Credit Loan
Available Amount:
The Aggregate Revolving Credit
Commitments $____________ (2)
Maximum Available Amount
after giving effect $____________ (3)
to the requested Revolving
Credit Loan or the issuance
of any requested Letter of
Credit) (Line 2 minus Line 1)
D-1
*Term Loan Borrowings are available only on the Closing Date.
D-2
PURINA XXXXX, INC.
By:________________________________
Name:
Title:
D-3
EXHIBIT E-1
-----------
FORM OF OPINION OF AUGUST X. XXXXXXXX
-------------------------------------
E-1-1
EXHIBIT E-2
-----------
FORM OF OPINION OF CLEARY, GOTTLIEB, XXXXX & XXXXXXXX
-----------------------------------------------------
E-2-1
EXHIBIT E-3
-----------
FORM OF OPINION OF LOCAL COUNSEL
--------------------------------
E-3-1
EXHIBIT F-1
-----------
FORM OF GUARANTEE AND COLLATERAL AGREEMENT
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F-1-1
EXHIBIT F-2
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FORM OF PM HOLDINGS PLEDGE AGREEMENT
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F-2-1
EXHIBIT F-3
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FORM OF DEED OF TRUST
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F-3-1
EXHIBIT F-4
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FORM OF PM HOLDINGS GUARANTY
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F-4-1
EXHIBIT F-5
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FORM OF CASH COLLATERAL ACCOUNT AGREEMENT
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F-5-1
EXHIBIT G
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FORM OF ASSIGNMENT AND ACCEPTANCE
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Reference is made to the Credit Agreement, dated as of
_________, 1998 (as amended, supplemented, waived or otherwise
modified from time to time, the "Credit Agreement"), among Purina
Xxxxx, Inc., as the Company, Chase Bank of Texas, National
Association, Individually, as an Issuing Bank, and as
Administrative Agent, and the Lenders now or hereafter parties
thereto. Unless otherwise defined herein, terms defined in the
Credit Agreement and used herein shall have the meanings given to
them in the Credit Agreement.
______________________ (the "Assignor") and _______________
(the "Assignee") agree as follows:
1. The Assignor hereby irrevocably sells and assigns
to the Assignee without recourse to the Assignor, and the
Assignee hereby irrevocably purchases and assumes from the
Assignor without recourse to the Assignor, as of the
Transfer Effective Date (as defined below), a percentage
interest (the "Assigned Interest") as set forth in Schedule
1 in and to the Assignor's rights and obligations under the
Credit Agreement and the other Financing Documents with
respect to those credit facilities provided for in the
Credit Agreement as are set forth on Schedule 1
(individually, an "Assigned Facility"), in a principal
amount for each Assigned Facility as set forth on Schedule
1.
2. The Assignor (a) makes no representation or
warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in
connection with the Credit Agreement, any other Financing
Document or any other instrument or document furnished
pursuant thereto or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the
Credit Agreement, any other Financing Document or any other
instrument or document furnished pursuant thereto, other
than that it has not created any adverse claim upon the
interest being assigned by it hereunder and that such
interest is free and clear of any such adverse claim; (b)
makes no representation or warranty and assumes no
responsibility with respect to the financial condition of
the Company, any of its Subsidiaries or any other obligor
or the performance or observance by the Company, any of its
Subsidiaries or any other obligor of any of their
respective obligations under the Credit Agreement, any
other Financing Document or any other instrument or
document furnished pursuant hereto or thereto; and (c)
attaches the Note(s) held by it evidencing the Assigned
Facilities and requests that the Administrative Agent
exchange such Note(s) for a new Note or Notes payable to
the Assignee and (if the Assignor has retained any interest
in the Assigned Facilities) a new Note or Notes payable to
the Assignor in the respective amounts which reflect the
assignment being made hereby (and after giving effect to
any other assignments which have become effective on the
Transfer Effective Date).1
3. The Assignee (a) represents and warrants that it is
legally authorized to enter into this Assignment and
Acceptance; (b) confirms that it has received a copy of the
Credit Agreement
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1 Notes should only be requested when specifically
required by the Assignee and/or the Assignor, as the case
may be.
G-1
together with copies of the Financial Statements and/or
such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to
enter into this Assignment and Acceptance; (c) agrees that
it will, independently and without reliance upon the
Assignor, the Administrative Agent or any other Lender and
based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit
decisions in taking or not taking action under the Credit
Agreement, the other Financing Documents or any other
instrument or document furnished pursuant hereto or
thereto; (d) appoints and authorizes the Administrative
Agent to take such action as agent on its behalf and to
exercise such power and discretion under the Credit
Agreement, the other Financing Documents or any other
instrument or document furnished pursuant hereto or thereto
as are delegated to the Administrative Agent by the terms
thereof, together with such powers as are incidental
thereto; (e) hereby affirms the acknowledgments of such
Assignee as a Lender contained in Section 8.3 of the Credit
Agreement; and (f) agrees that it will be bound by the
provisions of the Credit Agreement and will perform in
accordance with the terms of the Credit Agreement all the
obligations which by the terms of the Credit Agreement are
required to be performed by it as a Lender, including, but
not limited to, its obligations pursuant to Section 9.13 of
the Credit Agreement, and if it is organized under the laws
of a jurisdiction outside the United States, its
obligations pursuant to subsection 2.20(f) of the Credit
Agreement.
4. The effective date of this Assignment and
Acceptance shall be ____________, ____ (the "Transfer
Effective Date"). Following the execution of this
Assignment and Acceptance, it will be delivered to the
Administrative Agent for acceptance by it and recording by
the Administrative Agent pursuant to Section 9.7 of the
Credit Agreement, effective as of the Transfer Effective
Date (which shall not, unless otherwise agreed to by the
Administrative Agent, be earlier than five Business Days
after the date of such acceptance and recording by the
Administrative Agent).
5. Upon such acceptance and recording, from and after
the Transfer Effective Date, the Administrative Agent shall
make all payments in respect of the Assigned Interest
(including payments of principal, interest, fees and other
amounts) to the Assignee whether such amounts have accrued
prior to the Transfer Effective Date or accrued subsequent
to the Transfer Effective Date. The Assignor and the
Assignee shall make all appropriate adjustments in payments
by the Administrative Agent for the periods prior to the
Transfer Effective Date or with respect to the making of
this assignment directly between themselves.
6. From and after the Transfer Effective Date, (a) the
Assignee shall be a party to the Credit Agreement and, to
the extent provided in this Assignment and Acceptance, have
the rights and obligations of a Lender thereunder and under
the other Financing Documents and shall be bound by the
provisions thereof and (b) the Assignor shall, to the
extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations
under the Credit Agreement, but shall nevertheless continue
to be entitled to the benefits of Sections 2.16, 2.18, 2.20
and 9.4 thereof.
7. Notwithstanding any other provision hereof, if the
consents of the Company and the Administrative Agent hereto
are required under Section 9.7 of the Credit Agreement,
this Assignment and Acceptance shall not be effective
unless such consents shall have been obtained.
8. This Assignment and Acceptance shall be governed by
and construed in accordance with the laws of the State of
New York without regard to the principles of conflict of
laws thereof.
G-2
9. This Assignment and Acceptance may be executed in
any number of counterparts all of which taken together
shall constitute one instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment and Acceptance to be executed as of the date first
above written by their respective duly authorized officers on
Schedule 1 hereto.
G-3
SCHEDULE 1
TO THE ASSIGNMENT AND ACCEPTANCE
Re: Credit Agreement, dated as of ________, 1998, among Purina
Xxxxx, Inc., as the Company, and Chase Bank of Texas, National
Association, Individually, as an Issuing Bank, and as
Administrative Agent and the Lenders Now or Hereafter
parties thereto
Name of Assignor:
Name of Assignee:
Transfer Effective Date of Assignment:
Percentage of
Assignor's
Interest in
Credit Credit Principal
Facility Facility Amount
Assigned Assigned being Assigned
Assigned by Assignor
________% $__________
[NAME OF ASSIGNEE] [NAME OF ASSIGNOR]
By:__________________________ By:__________________________
Name: Name:
Title: Title:
Accepted for recording in the Consented To:
Register:
CHASE BANK OF TEXAS, PURINA XXXXX, INC.
NATIONAL ASSOCIATION,
as Administrative Agent
By:__________________________ By:__________________________
Name: Name:
Title: Title:
Schedule 0-0
Xxxxx Xxxx xx Xxxxx,
National Association, as
Administrative Agent
By:__________________________
Name:
Title:
Schedule 1-2
EXHIBIT H
FORM OF U.S. TAX COMPLIANCE CERTIFICATE
[Name of Applicable Lender] (the "Lender") hereby
certifies, under penalties of perjury, that it (a) is not a
"bank" under Section 881(c)(3)(A) of the Code, is not subject to
regulatory or other legal requirements as a bank in any
jurisdiction, and has not been treated as a bank for purposes of
any tax, securities law or other filing or submission made to any
Governmental Authority, any application made to a rating agency
or qualification for exemption from tax, securities law or other
legal requirements, (b) is not a 10% shareholder within the
meaning of Section 881(c)(3)(B) of the Code, and (c) is not a
controlled foreign corporation receiving interest from a related
person within the meaning of Section 881(c)(3)(C) of the Code.
The undersigned hereby certifies that he or she is a duly
authorized officer of the Lender, and in such capacity, further
certifies the accuracy of the statements contained in this
certificate.
CERTIFIED THIS ___ day of
_______________, 19__:
[NAME OF APPLICABLE LENDER]
By:__________________________
Name:
Title:
H-1
