Exhibit 4.6
[Execution Copy]
$150,000,000
REVOLVING CREDIT AND TERM LOAN AGREEMENT
dated as of October 7, 1994
-----------------------------------
NATIONAL PROPANE CORPORATION
-----------------------------------
THE BANK OF NEW YORK,
as Administrative Agent
__________________
THE FIRST NATIONAL BANK OF BOSTON
and
INTERNATIONALE NEDERLANDEN (U.S.) CAPITAL CORPORATION,
as Co-Agents
PAGE
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.01. Definitions
ARTICLE II
THE REVOLVING CREDIT LOANS; LETTERS OF CREDIT
Section 2.01. The Revolving Credit Loans
Section 2.02. Procedure for Revolving Credit Borrowings
Section 2.03. Revolving Credit Notes
Section 2.04. Revolving Credit Commitment Fee
Section 2.05. Cancellation or Reduction of Revolving Credit
Commitment
Section 2.06. Optional and Mandatory Prepayment
Section 2.07. Conversion to Term Loans
Section 2.08. Letters of Credit
ARTICLE III
THE TERM LOANS
Section 3.01. The Tranche A Term Loans
Section 3.02. The Tranche B Term Loans
Section 3.03. The Tranche C Term Loans
Section 3.04. The Tranche D Term Loans
Section 3.05. Procedure for Making Term Loans
Section 3.06. Repayment
Section 3.07. Optional and Mandatory Prepayments
Section 3.08. Special Mandatory Prepayment
Section 3.09. Additional Prepayment Provisions
ARTICLE IV
INTEREST, METHOD OF PAYMENT, USE OF PROCEEDS
Section 4.01. Interest on ABR Loans
Section 4.02. Interest on Eurodollar Loans
Section 4.03. Procedure for Interest Determination
Section 4.04. Post Default Interest
Section 4.05. Maximum Interest Rate
Section 4.06. Uses of Proceeds
ARTICLE V
DISBURSEMENT AND PAYMENT
Section 5.01. Pro Rata Treatment
Section 5.02. Method of Payment
Section 5.03. Compensation for Losses
Section 5.04. Additional Costs; Capital Adequacy
Section 5.05. Unavailability
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
Section 6.01. Incorporation, Good Standing and Due Qualification
Section 6.02. Corporate Power and Authority; No Conflicts
Section 6.03. Legally Enforceable Agreements
Section 6.04. Litigation
Section 6.05. Financial Statements
Section 6.06. Taxes
Section 6.07. ERISA
Section 6.08. Operation of Business
Section 6.09. Environmental Protection
Section 6.10. Margin Regulations
Section 6.11. No Material Misstatements
Section 6.12. Monthly Financial Statements
Section 6.13. Pro Forma Financial Statements
ARTICLE VII
CONDITIONS OF LENDING
Section 7.01 Conditions to the Making of the Initial Loans
Section 7.02. Conditions Precedent to the Making of the
Tranche C Term Loans
Section 7.03. Conditions to the Making of Each Loan
Section 7.04. Conditions Precedent to Revolving Credit
Loans Constituting Acquisition Borrowings
ARTICLE VIII
COVENANTS
Section 8.01. Affirmative Covenants
Section 8.02. Negative Covenants
Section 8.03. Financial Covenants
ARTICLE IX
EVENTS OF DEFAULT; SECURITY
Section 9.01. Events of Default
ARTICLE X
THE ADMINISTRATIVE AGENT AND THE LENDERS
Section 10.01. Appointment, Powers and Immunities
Section 10.02. The Administrative Agent's Liabilities
Section 10.03. Defaults and Events of Default
Section 10.04. Rights as a Lender
Section 10.05. Lender Credit Decision
Section 10.06. Indemnification
Section 10.07. Failure to Act
Section 10.08. Resignation or Removal of Administrative Agent
Section 10.09. Agent Fee
ARTICLE XI
CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
Section 11.01. Consent to Jurisdiction
Section 11.02. WAIVER OF JURY TRIAL
ARTICLE XII
MISCELLANEOUS
Section 12.01. APPLICABLE LAW
Section 12.02. Set-off
Section 12.03. Expenses; Indemnification
Section 12.04. Sharing of Payments and Expenses
Section 12.05. Amendments
Section 12.06. Cumulative Rights and No Waiver
Section 12.07. Notices
Section 12.08. Separability
Section 12.09. Assignments and Participations
Section 12.10. Execution in Counterparts
SCHEDULES
Schedule 1 Revolving Credit Commitments
Schedule 2 Tranche A Term Loan Commitments
Schedule 3 Tranche B Term Loan Commitments
Schedule 4 Tranche C Term Loan Commitments
Schedule 5 Subsidiaries of the Borrower
Schedule 6 Environmental Protection
Schedule 7 Certain Permitted Liens
Schedule 8 Certain Indebtedness of the Borrower
EXHIBITS
Exhibit A Form of Guarantee
Exhibit B Pro-Forma Historical EBITDA Calculation
Exhibit C Form of Mortgage, Mortgage Deed and Security
Agreement
Exhibit D Form of Pledge and Security Agreement of Guarantor
Exhibit E Form of Security Agreement
Exhibit F Form of Trademark Security Agreement
Exhibit G Form of Notice of Borrowing for Revolving Credit
Loans
Exhibit H Form of Revolving Credit Note
Exhibit I Form of Tranche A Term Note
Exhibit J Form of Tranche B Term Note
Exhibit K Form of Tranche C Term Note
Exhibit L Form of Tranche D Term Note
Exhibit M Form of Notice of Borrowing for Tranche A and
Tranche B Term Loans
Exhibit N Form of Notice of Borrowing for Tranche C Term
Loans
Exhibit O Form of Notice of Interest Election
Exhibit P Form of Opinions of Counsel for the Borrower and
the Guarantor
Exhibit Q Form of Public Gas Management Agreement
Exhibit R Form of Assignment and Assumption Agreement
REVOLVING CREDIT AND TERM LOAN AGREEMENT, dated as of October 7,
1994 (as amended, supplemented, modified or extended from time to time, this
"Agreement"), among NATIONAL PROPANE CORPORATION, a Delaware corporation
(the
"Borrower"), each of the several lenders from time to time parties hereto
(each a "Lender" and, collectively, the "Lenders"), THE BANK OF NEW YORK, as
Administrative Agent for the Lenders (as defined below, the "Administrative
Agent") and THE FIRST NATIONAL BANK OF BOSTON and INTERNATIONALE
NEDERLANDEN
(U.S.) CAPITAL CORPORATION, as Co-Agents (in such capacity, the "Co-Agents").
W I T N E S S E T H:
WHEREAS, the Borrower has requested the Lenders to provide up to
$150,000,000 in credit facilities to the Borrower; and
WHEREAS, the Lenders are willing to provide such credit facilities
on the terms and condition hereinafter provided;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions.
(a) Accounting Terms and Determinations. Unless otherwise
specified herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided,
however, that, for purposes of determining compliance with any covenant set
forth in Article VIII, such terms shall be construed in accordance with
GAAPas in effect on the date of this Agreement applied on a basis
consistentwith the construction thereof applied in preparing the Borrower's
auditedfinancial statements referred to in Section 6.05. In the event there
shalloccur a change in GAAP which but for the foregoing proviso would affect
thecomputation used to determine compliance with any covenant set forth
inArticle VIII, the Borrower and the Lenders agree to negotiate in good
faithin an effort to agree upon an amendment to this Agreement that will
permitcompliance with such covenant to be determined by reference to GAAP as
sochanged while affording the Lenders the protection afforded by such
covenantprior to such change (it being understood, however, that such
covenant shallremain in full force and effect in accordance with its existing
termspending the execution by the Borrower and the Lenders of any
suchamendment).
(b) Other Terms. The following terms shall have the
meaningsascribed to them below or in the Sections of this Agreement indicated
belowand include the plural as well as the singular:
"ABR Loans" means ABR Revolving Loans and ABR Term Loans.
"ABR Revolving Loans" means Revolving Credit Loans or portions
thereof which bear interest at the rate and in the manner set forth in
Section 4.01.
"ABR Term Loans" means Term Loans or portions thereof which bear
interest at the rate and in the manner set forth in Section 4.01.
"Acquisition Borrowing" means a Borrowing under the Acquisition
Sublimit.
"Acquisition Sublimit" means the $15 million portion of the Total
Revolving Credit Commitment which may at any one time be borrowed for the
purpose of making Permitted Acquisitions.
"Administrative Agent" means The Bank of New York as administrative
agent for the Lenders and as Secured Party (or any similar capacity) under
any of the Security Documents.
"Adverse Environmental Condition" means any of the matters
referred to in clauses (i), (ii) or (iii) of the definition of Environmental
Claim.
"Affiliate" means, as to any Person, any other Person that directly
or indirectly, through one or more intermediaries, controls, is controlled
by, or is under common control with, such Person. For purposes of this
definition, "control" of a Person means the possession, directly or
indirectly, of the power to direct or cause the direction of its management
or policies, whether through the beneficial or record ownership of equity
interests.
"Applicable Margin" means the following margins in respect of
Eurodollar Loans and ABR Loans:
Applicable Margin
Eurodollar
Type of Loan Loans ABR Loans
Revolving Credit Loans and 2.25% 1.00%
Tranche D Term Loans
Tranche A Term Loans 2.50% 1.25%
Tranche B Term Loans 2.75% 1.50%
Tranche C Term Loans 3.50% 2.25%;
provided, however, that the Applicable Margin for Revolving Credit Loans,
Tranche D Term Loans and Tranche A Term Loans outstanding after the Margin
Adjustment Date (as defined below) shall be reduced by .50% if, but only so
long as, the Leverage Ratio is less than 2.50:1.00 and the Interest Coverage
Ratio is greater than 3.75:1.00, any reduction or increase to be effective
at the close of business on the fifth Business Day (the "Margin Adjustment
Date") after the date on which the Borrower shall have delivered to the
Administrative Agent annual or quarterly financial statements of the
Borrower, as provided in Section 8.01(a), demonstrating that the Leverage
Ratio and the Interest Coverage Ratio, as of the date of such financial
statements, satisfy, or fail to satisfy, the foregoing conditions.
"Asset Sale" means the sale, lease or disposition of any assets
of the Borrower or any Subsidiary other than in the ordinary course of
business.
"Assignee" has the meaning ascribed to such term in Section
12.09(c).
"Base Rate" means, for any day, a fluctuating interest rate per
annum as shall be in effect from time to time, which rate per annum shall at
all times be equal to the higher of (i) the rate of interest publicly
announced by The Bank of New York from time to time at its Principal Office
as its prime commercial lending rate and (ii) the Federal Funds Rate plus
1/2 of 1%.
"Borrowed Money" means, as to any Person and without
duplication, the amount of (a) any obligation of such Person to repay money
borrowed, (b) any indebtedness of such Person evidenced by notes (other than
trade debt incurred in the ordinary course of business and payable on terms
not longer than 150 days), bonds, debentures or similar instruments, (c) any
obligation of such Person to pay for goods or services under a conditional
sale or other title retention agreement, (d) any obligation of others
constituting Borrowed Money secured by any asset of such Person, whether or
not such obligation is assumed by such Person, (e) any contingent or non-
contingent obligations of such Person to reimburse or prepay any bank or
other Person in respect of amounts paid or payable (currently or in the
future) under a letter of credit, bankers' acceptance or similar instrument,
(f) any obligation for Borrowed Money of others guaranteed by such Person
and (g) all Capital Lease Obligations of such Person.
"Borrower Management Agreement" means the management agreement,
dated as of April 23, 1993, between the Guarantor and the Borrower (as such
agreement may be amended, restated or supplemented from time to time).
"Borrowing" means any borrowing made by the Borrower, or
reimbursement obligation of or undrawn amount available to the Borrower in
respect of a Letter of Credit, under this Agreement.
"Borrowing Date" has the meaning ascribed to such term in
Section 2.02; provided that each "Borrowing Date" shall be a Business Day.
"Business Day" means any day except a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by
law or executive order to close.
"Capital Lease Obligations" means, as to any Person, the
obligations of such Person to pay rent or other amounts under a lease of (or
other agreement containing the right to use) real or personal property,
which obligations are required to be classified and accounted for as capital
lease obligations on a balance sheet of such Person under GAAP and, for the
purposes of this Agreement, the amount of such obligations shall be the
outstanding amount thereof, determined in accordance with GAAP.
"Closing Date" means the date of the initial Loans.
"Code" means the Internal Revenue Code of 1986, as amended from
time to time.
"Commitment" means, as to any Lender, its Revolving Credit
Commitment (if any) and Term Loan Commitment (if any).
"Consolidated" and "consolidated" refer to the consolidation of
financial statements in accordance with GAAP.
"Consolidated Capital Expenditures" means, for the Borrower for
any period, the aggregate of all expenditures (whether paid or accrued)
during such period that, in conformity with GAAP, are included in the
property, plant or equipment reflected in the consolidated balance sheet of
the Borrower and its Subsidiaries, but excluding expenditures for the
acquisition of any other Person (or any stock or other equity interests
therein) or of substantially all of the assets used in the business of any
other Person.
"Consolidated Current Assets" means, for the Borrower at any
date of determination, consolidated current assets determined in accordance
with GAAP, less cash, investments with maturities of less than one year and
the current portion of the amounts shown as "due from Triarc Companies,
Inc." on the Borrower's most recent financial statements as of such date.
"Consolidated Current Liabilities" means, for the Borrower at
any date of determination, consolidated current liabilities determined in
accordance with GAAP, less the sum of (a) the current portion of, and any
accrued interest on, Subordinated Debt, (b) the Restructuring Charge and (c)
the current portion of Borrowed Money of the Borrower.
"Consolidated EBITDA" means, for the Borrower for any period,
the sum (without duplication) of (a) the consolidated net income of the
Borrower and its Subsidiaries for such period, determined in accordance with
GAAP, adjusted to exclude non-recurring gains and losses on unusual items
(including, without limitation, Asset Sales) and (b) income taxes,
Consolidated Interest Expense, depreciation, and amortization (including,
without limitation, amortization associated with goodwill, deferred debt
expenses, restricted stock and option costs and non-competition agreements)
for such period.
"Consolidated Interest Expense" means, for the Borrower for any
period, total interest expense (including that attributable to Capital Lease
Obligations in accordance with GAAP, but excluding that attributable to the
Subordinated Debt), whether paid or accrued, of the Borrower and its
Subsidiaries, determined on a consolidated basis, with respect to all
outstanding Borrowed Money of the Borrower and its Subsidiaries, including
all commissions, discounts and other fees and charges owed with respect to
letter of credit and bankers' acceptance financing, but excluding non-cash
costs (or benefits) under Interest Rate Agreements.
"Consolidated Scheduled Debt Amortization" means, for the
Borrower at any time of determination, the sum, without duplication, of the
scheduled maturity principal payments, as adjusted to reflect mandatory
prepayments made on or prior to the date of determination, of all Borrowed
Money for the next succeeding four fiscal quarters.
"Contaminant" means any waste, pollutant, hazardous substance,
toxic substance, hazardous waste, special waste, petroleum or
petroleum-derived substance or waste, or any regulated constituent of any
such substance or waste, including any such substance regulated under any
applicable Environmental Law.
"Contingent Liabilities" has the meaning ascribed to such term
in Section 8.02(c).
"Credit Documents" means this Agreement, the Security Documents,
the Guarantee and the Notes, as any of them may be amended or supplemented
from time to time.
"Default" means any event which, with the giving of notice or
the lapse of time, or both, would constitute an Event of Default.
"Effective Date" means the first Business Day on which all of
the conditions precedent in Section 7.01 have been satisfied.
"Election Date" has the meaning ascribed to such term in Section
4.03.
"Environmental Claim" means any accusation, allegation, notice
of violation, claim, demand, abatement or other order or direction
(conditional or otherwise) by any Governmental Authority or any other Person
for personal injury (including sickness, disease or death), tangible or
intangible property damage, damage to the environment, pollution,
contamination or other adverse effects on the environment, or for fines,
penalties or restrictions, in each case resulting from or based upon (i) the
existence, or the continuation of the existence, of a release (including,
without limitation, sudden or non-sudden, accidental or non-accidental
releases), of, or exposure to, any substance, chemical, material, pollutant
contaminant, odor or audible noise or other release or emission in, into or
onto the environment including, without limitation, the air, ground, water
or any surface) at, in, by, from, or related to a Person's property, (ii)
the environmental aspects of the transportation, storage, treatment or
disposal of materials in connection with the operation of such property or
(iii) the violation, or alleged violation, of any applicable Environmental
Laws, ordinances, orders, permits or licenses of or from any Governmental
Authority or court relating to environmental matters connected with a
Person's property.
"Environmental Laws" means the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C. 9601, et seq., the
Resource Conservation and Recovery Act, 42 U.S.C. 6901, et seq., the Clean
Air Act, 42 U.S.C. 7401, et seq., the Clean Water Act, 33 U.S.C. 1251, et
seq., the Toxic Substances Control Act, 15 U.S.C. 2601, et seq., the
Occupational Safety and Health Act, 29 U.S.C. 651, et seq., and all other
federal, state and local laws, ordinances, regulations, rules, orders,
permits, agency requirements, and the like, which are directed at the
protection of human health or the environment from Contaminants.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" means any corporation or trade or business
which is a member of the same controlled group of corporations (within the
meaning of Section 414(b) of the Code) as the Borrower or is under common
control (within the meaning of Section 414(c) of the Code) with the
Borrower.
"Eurodollar Base Rate" means, with respect to any Interest
Period for a Eurodollar Loan, the rate per annum determined by the
Administrative Agent to be the arithmetic mean (rounded to the nearest 1/16
of 1% or, if there is no nearest 1/16 of 1%, to the next higher 1/16 of 1%)
of the offered rates for U.S. dollar deposits with a term comparable to such
Interest Period that appear on the Reuters LIBO Page (as defined below) at
approximately 11:00 A.M., London time, on the second full Business Day
preceding the first day of such Interest Period; provided, however, that if
there shall at any time no longer exist a Reuters LIBO Page, "Eurodollar
Base Rate" shall mean, with respect to any Interest Period for a Eurodollar
Loan, the rate per annum (rounded to the nearest 1/16 of 1% or, if there is
no nearest 1/16 of 1%, to the next higher 1/16 of 1%) quoted as the rate at
which U.S.dollar deposits are offered by the Administrative Agent to leading
banks in the London interbank deposit market at approximately 11:00A.M.,
London time, on the second full Business Day preceding the first day of such
Interest Period in an amount substantially equal to the amount of the
related Eurodollar Loan of the Administrative Agent (in its capacity as a
Lender) for a term equal to such Interest Period. "Reuters LIBO Page" shall
mean the display page designated as "LIBO" on the Reuters Monitor Money
Rates Service (or such other page as may replace such page on such service
for the purpose of displaying the rates at which U.S. dollar deposits are
offered by leading banks in the London interbank deposit market).
"Eurodollar Loans" means Eurodollar Revolving Loans and
Eurodollar Term Loans.
"Eurodollar Reserve Percentage" means, for any day, that
percentage, expressed as a decimal, which is in effect on such day, as
prescribed by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement (including,
without limitation, any marginal, supplemental or emergency reserve
requirements) for a member bank of the Federal Reserve System in New York
City with deposits exceeding one billion dollars in respect of eurocurrency
liabilities.
"Eurodollar Revolving Loans" means Revolving Credit Loans or
portions thereof which bear interest at the rate and in the manner set forth
in Section 4.02.
"Eurodollar Term Loans" means Term Loans or portions thereof
which bear interest at the rate and in the manner set forth in Section 4.02.
"Event of Default" has the meaning ascribed thereto in Section
9.01.
"Excess Cash Flow" means, for the Borrower for any period, the
amount, if positive, of (a) the sum, without duplication, of (i)
consolidated net income of the Borrower for such period, (ii) to the extent
deducted in determining such consolidated net income for such period, non-
cash interest expense, non-cash income tax expense, depreciation expense,
amortization expense, other non-cash charges and any net losses on Asset
Sales, (iii) the decrease, if any, in Net Working Capital (including the
effect, if any, of the Restructuring Charge) during such period, minus (b)
the sum, without duplication, of (i) any non-cash gain during such period
(to the extent included in consolidated net income) and non-cash interest
income, (ii) the increase, if any, in Net Working Capital (including the
effect, if any, of the Restructuring Charge) during such period, (iii) cash
Consolidated Capital Expenditures, (iv) net gains on Asset Sales (to the
extent included in determining consolidated net income) and (v) the amount
of repayment of amounts on all Borrowed Money (except for repayments of
Revolving Credit Loans) in such period.
"Fair Market Value" means, with respect to any asset or
property, the sale value that would be obtained in an arm's-length
transaction between a fully informed and willing seller and a fully informed
and willing buyer.
"Federal Funds Rate" means, for any day, a fluctuating interest
rate per annum equal to the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers on such day, as published by the Federal
Reserve Bank of New York on the Business Day next succeeding such day,
provided that (a) if such day is not a Business Day, the Federal Funds Rate
for such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and (b) if
such rate is not so published for any day, the Federal Funds Rate for such
day shall be the average rate charged to or by the Administrative Agent on
such day on such transactions as determined by the Administrative Agent.
"Fixed Charge Coverage Ratio" means, at any date of
determination, the ratio of (a) Consolidated EBITDA for the four most
recently completed fiscal quarters of the Borrower less Consolidated Capital
Expenditures and less any increase in, or plus any decrease in Net Working
Capital, for such four fiscal quarters to (b) the sum of Consolidated
Interest Expense for such four fiscal quarters and Consolidated Scheduled
Debt Amortization at such date of determination.
"GAAP" means generally accepted accounting principles set forth
in the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment
of the accounting profession.
"General Purpose Borrowing" means a Borrowing under the General
Purposes Sublimit, other than a reimbursement obligation of, or undrawn
amount available to, the Borrower in respect of a Letter of Credit.
"General Purposes Sublimit" means the $25 million portion of the
Total Revolving Credit Commitment which may at any one time be borrowed for
general corporate purposes or issued as a Letter or Letters of Credit
pursuant to Section 2.08 hereof, and which is not part of the Acquisition
Sublimit.
"Governmental Authority" means any nation or government, any
state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of
or pertaining to government.
"Guarantee" means the unconditional guarantee by the Guarantor
of the obligations of the Borrower hereunder, substantially in the form of
Exhibit A.
The term "guarantee" means any guarantee or other contingent
liability (other than any endorsement for collection or deposit in the
ordinary course of business), direct or indirect, with respect to any
obligations of another Person, through an agreement or otherwise, including,
without limitation, (a) any other endorsement or discount with recourse or
undertaking substantially equivalent to or having economic effect similar to
a guarantee in respect of any such obligations and (b) any agreement (i) to
purchase, or to advance or supply funds for the payment or purchase of, any
such obligations, (ii) to purchase, sell or lease property, products,
materials or supplies, or transportation or services, in respect of enabling
such other Person to pay any such obligation or to assure the owner thereof
against loss regardless of the delivery or nondelivery of the property,
products, materials or supplies or transportation or services or (iii) to
make any loan, advance or capital contribution to or other investment in, or
to otherwise provide funds to or for, such other Person in order to enable
such Person to satisfy any obligation (including any liability for a
dividend, stock liquidation payment or expense) or to assure a minimum
equity, working capital or other balance sheet condition in connection with
the incurrence of any such obligation. The amount of any guarantee shall be
equal to the outstanding amount of the obligations directly or indirectly
guaranteed.
"Guarantor" means Triarc Companies, Inc., a Delaware
corporation.
"Interest Coverage Ratio" means, for the Borrower at any date of
determination, the ratio of Consolidated EBITDA to Consolidated Interest
Expense during the four fiscal quarters of the Borrower then most recently
completed.
"Interest Period" means each one-, two-, three- or six-month
period, as to a Eurodollar Loan, selected by the Borrower pursuant to Sec-
tions 2.02, 3.05 or 4.02 hereof and commencing on the date such Eurodollar
Loan is made or a Loan of another type is converted to such Eurodollar Loan
or the last day of the current Interest Period for such Eurodollar Loan, as
the case may be.
"Interest Rate Agreement" means any interest rate swap
agreement, interest rate cap agreement or similar arrangement used by a
Person to fix or cap a floating rate of interest on indebtedness for
Borrowed Money to a negotiated maximum rate or amount.
"Issuance Date" means the Business Day set forth in each Letter
of Credit Request as the date upon which the Borrower desires to have the
Administrative Agent issue a Letter of Credit for its account pursuant to
Section 2.08.
"Issuance Fee" has the meaning ascribed to such term in Section
2.08(f).
"Lender Class" means, as of any date, each of the Revolving
Credit Lenders, Tranche A Lenders, Tranche B Lenders, Tranche C Lenders or
Tranche D Lenders on such date, in each case taken as a group with all other
such Lenders.
"Letter of Credit" has the meaning ascribed to such term in
Section 2.08.
"Letter of Credit Fee" has the meaning ascribed to such term in
Section 2.08(f).
"Letter of Credit Obligations" means, with respect to any Lender
at any date of determination, the sum of (i) such Lender's participating
share of the maximum aggregate amount which is, or at any time thereafter
may become, available for drawings under all Letters of Credit then
outstanding plus (ii) the aggregate amount such Lender is obligated to fund
or has funded to the Administrative Agent as a result of such Lender's
participating share in all drawings under Letters of Credit honored by the
Administrative Agent and not theretofore reimbursed by the Borrower.
"Letter of Credit Request" has the meaning ascribed to such term
in Section 2.08(a).
"Letter of Credit Sublimit" means the $5 million portion of the
General Purposes Sublimit which may at any one time be outstanding in the
form of a Letter or Letters of Credit.
"Leverage Ratio" means, for the Borrower at any date of
determination, the ratio of (a) Total Debt on such date to (b) Consolidated
EBITDA of the Borrower (as adjusted to give pro forma effect to any business
combinations or acquisitions consummated during the most recent four fiscal
quarters in the manner set forth in Exhibit B) for the four fiscal quarters
of the Borrower most recently completed prior to such date.
"LIBOR" means, with respect to any Interest Period, the rate per
annum determined pursuant to the following formula:
LIBOR = Eurodollar Base Rate
---------------------------------
1 - Eurodollar Reserve Percentage.
LIBOR shall be adjusted automatically on and as of the effective date of any
change in the Eurodollar Reserve Percentage.
"Lien" means any lien, mortgage, pledge, security interest,
charge or encumbrance of any kind (including any conditional sale or other
title retention agreement, any lease in the nature thereof, and any
agreement to give any security interest).
"Loans" means the Revolving Credit Loans and Term Loans.
"Material Adverse Effect" means (i) any material adverse effect
on the business, properties, conditions (financial or otherwise), or
operations, present or prospective, of the Borrower and its Subsidiaries,
taken as a whole, (ii) any material adverse effect on the ability of the
Borrower to perform its respective obligations hereunder and under the other
Credit Documents, (iii) any material adverse effect on the legality,
validity, binding effect or enforceability of this Agreement or any other
Credit Document, or (iv) any adverse effect on the perfection or priority of
the Lenders' Liens upon a material portion of the collateral described in
the Security Documents.
"Mortgages" means certain mortgages of real property of the
Borrower, each substantially in the form of Exhibit C.
"Net Proceeds" means, as to the issuance of equity securities,
gross proceeds reduced by any ordinary and usual issuance or sale costs
actually incurred.
"Net Working Capital" means, for the Borrower at any date of
determination, the excess of (a) the Consolidated Current Assets of the
Borrower over (b) the Consolidated Current Liabilities of the Borrower, all
determined as of such date.
"Notes" means, collectively, the Revolving Credit Notes and the
Term Notes.
"Participant" has the meaning ascribed to such term in Section
12.09.
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor thereto.
"Permitted Acquisition" means the acquisition by the Borrower or
a Subsidiary of the Borrower, of any Person (or any stock or other equity
interests therein) or a substantial part of the assets used in the business
of any Person; provided that (a) the Person (or the assets) being acquired
is engaged or used in the distribution of propane gas; (b) such acquisition
shall not be opposed by the boards of directors (or other person or persons
performing similar functions) of any of the parties to such acquisition; (c)
if the purchase price for such acquisition exceeds $10,000,000 in cash,
property, net assumption of liabilities for Borrowed Money or otherwise (or
$5,000,000 if such acquisition is to be financed, directly or indirectly, in
whole or in part with proceeds of Loans), the written approval of the
Required Lenders shall have been obtained prior to consummation of such
acquisition; (d) after giving effect to such acquisition, the Leverage Ratio
shall not exceed 4.25x (on or before December 30, 1995) or the maximum
Leverage Ratio permitted by Section 8.03(b) (after December 30, 1995); and
(e) after giving effect to such acquisition, no Default or Event of Default
shall have occurred and be continuing.
"Permitted Investments" means (a) direct obligations of the
United States of America, or of any agency or instrumentality thereof which
is guaranteed fully as to principal, premium (if any) and interest by the
United States of America, in any case with a maturity not exceeding one
year, (b) certificates of deposit and other time deposits with a maturity
not exceeding one year issued by a commercial bank, including any Lender,
having a combined capital and surplus of at least $100,000,000 or the
equivalent thereof and a member of the Federal Reserve System, provided that
the short-term debt of such commercial bank (other than a Lender) has a
rating, at the time as of which any investment therein is made, of "P-1" (or
higher) according to Moody's Investors Service Inc. or any successor rating
agency, or "A-1" (or higher) according to Standard & Poor's Corporation or
any successor rating agency, (c) commercial paper, maturing not more than
one year after the date of acquisition, issued by a corporation (other than
an Affiliate or Subsidiary of the Guarantor or the Borrower) organized and
existing under the laws of the United States of America or any State thereof
with a rating, at the time as of which any investment therein is made, of
"P-1" (or higher) according to Moody's Investors Service Inc. or any
successor rating agency, or "A-1" (or higher) according to Standard & Poor's
Ratings Group or any successor rating agency, (d) any money market deposit
accounts issued or offered by a commercial bank (including any Lender)
having capital and surplus in excess of $100,000,000 or the equivalent
thereof, provided that the short-term debt of such commercial bank (other
than a Lender) has a rating, at the time of investment, of "P-1" (or higher)
according to Moody's Investors Service Inc. or any successor rating agency,
or "A-1" (or higher) according to Standard & Poor's Ratings Group or any
successor rating agency and (e) repurchase obligations with a term of not
more than 30 days for underlying securities of the types described in clause
(a) above entered into with any financial institution.
"Person" means any individual, sole proprietorship, partnership,
joint venture, trust, unincorporated organization, association, corporation,
institution, public benefit corporation, entity or government (whether
Federal, state, county, city, municipal or otherwise, including, without
limitation, any instrumentality, division, agency, body or department
thereof).
"Plan" means any employee benefit plan established by the
Borrower or any ERISA Affiliate which is subject to Title IV of ERISA.
"Pledge and Security Agreement" means the pledge and security
agreement, substantially in the form of Exhibit D, delivered by the
Guarantor pursuant to Section 7.01.
"Principal Office" means, with respect to the Administrative
Agent, its principal office located at One Wall Street, New York, New York
10286.
"Public Gas" means Public Gas Company, a Florida corporation.
"Public Gas Management Agreement" has the meaning ascribed to
such term in Section 8.01(q).
"Public Gas Merger" has the meaning ascribed to such term in
Section 7.02(b).
"Public Gas Promissory Note" has the meaning set forth in
Section 8.02(e).
"Reportable Event" means any of the events set forth in Section
4043(b) of ERISA as to which events the PBGC by regulation has not waived
the requirement of Section 4043(a) of ERISA that it be notified within 30
days of the occurrence of such event.
"Required Lenders" means, on any date, Lenders holding, in the
aggregate, greater than 50% of (i) the Total Revolving Credit Commitment on
such date, (ii) the aggregate unpaid principal amount of Tranche A Loans or,
if no such Loans are outstanding, the Tranche A Term Loan Commitments, on
such date, (iii) the aggregate unpaid principal amount of Tranche B Term
Loans or, if no such Loans are outstanding, the Tranche B Term Loan
Commitments, on such date, (iv) the aggregate unpaid principal amount of
Tranche C Term Loans or, if no such Loans are outstanding, the Tranche C
Term Loan Commitments, on such date, and (v) the aggregate unpaid principal
amount of Tranche D Term Loans on such date. Notwithstanding anything to
the contrary in the Credit Documents, for so long as any Lender shall be in
default with respect to the making or funding of any Loan, such Lender and
the Commitments and Loans of such Lender, shall not be counted in
determining whether any approval or consent of the Required Lenders has been
obtained.
"Restricted Payments" means (a) the declaration or payment of
any dividends (other than a non-cash dividend effected by forgiveness of
indebtedness) or distributions on any shares of any class of capital stock
of the Borrower, application of any property or assets of the Borrower to
the purchase or acquisition, redemption or other retirement of, or setting
apart of any sum for the payment of any distributions on, or for the
purchase, redemption or other retirement of, any shares of any class of
capital stock of the Borrower or of any Subsidiary of the Borrower (other
than a Wholly Owned Subsidiary) and (b) any payment or other advance made,
directly or indirectly, by the Borrower to any Affiliate (other than a
Wholly Owned Subsidiary) of the Borrower; provided that "Restricted
Payments" shall not include any payments made by the Borrower (i) pursuant
to the Tax Sharing Agreement, (ii) to the Guarantor of the lease termination
portion of the Restructuring Charge in an amount not exceeding $1,400,000,
(iii) to the Guarantor in settlement of liabilities representing obligations
of the Borrower owing to the Guarantor for past-due management fees (not
exceeding $1,044,000) and advances for the payment of the September 1, 1994
installment of interest on the Subordinated Debt (not exceeding $3,215,000),
to the extent such liabilities are accrued on the Borrower's balance sheet
dated as of September 30, 1994, (iv) in satisfaction of Borrower's
obligations under employee benefit programs for employees of the Borrower
and its Subsidiaries or (v) to Chesapeake Insurance Company pursuant to that
certain Promissory Note, dated June 1, 1994, of the Borrower (without giving
effect to any amendment or modification thereof) in an amount not exceeding
$1,250,000.
"Restructuring Charge" means, for the Borrower at any date of
determination, the current liability item on the consolidated balance sheet
of the Borrower and its Subsidiaries which resulted from the facilities
relocation and corporate restructuring provision and other charges set forth
in note (10) to the Borrower's consolidated financial statements contained
in the Borrower's Annual Report on Form 10-K for the year ended April 30,
1993.
"Revolving Credit Borrowing" means the aggregate principal
amount of Revolving Credit Loans made on a particular Borrowing Date.
"Revolving Credit Commitment" has the meaning ascribed to such
term in Section 2.01.
"Revolving Credit Commitment Fee" has the meaning ascribed to
such term in Section 2.04.
"Revolving Credit Lenders" means, collectively, as of any date,
Lenders having a Revolving Credit Commitment or an outstanding Revolving
Credit Loan on such date.
"Revolving Credit Loans" has the meaning ascribed to such term
in Section 2.01.
"Revolving Credit Notes" has the meaning ascribed to such term
in Section 2.03.
"Revolving Credit Termination Date" has the meaning ascribed to
such term in Section 2.01.
"Security Agreement" means a security agreement, substantially
in the form of Exhibit E, delivered pursuant to Section 7.01(k) or 8.01(o).
"Security Documents" means the Security Agreements, the
Trademark Security Agreement, the Pledge and Security Agreement, the
Mortgages, any related financing statements, UCC filings, bank
acknowledgements and similar instruments and documents.
"SEPSCO" means Southeastern Public Service Company, a Delaware
corporation.
"Solvent" means, when used with respect to any Person, that at
the date of determination:
(a) the present fair saleable value of such Person's assets is
in excess of the total amount of such Person's probable liabilities on
its existing debts and obligations (including contingent liabilities)
as they become absolute and matured;
(b) such Person is able to pay its debts as they become due;
and
(c) such Person does not have unreasonably small capital to
carry on such Person's business as theretofore operated and all
businesses in which such Person then is about to engage.
"Subordinated Debt" means the 13 % Subordinated Debentures of
the Borrower outstanding on the date hereof.
"Subsidiary" means, as to any Person, any corporation,
partnership, joint venture, trust, estate or other entity of which (or in
which) more than 50% of:
(a) the outstanding capital stock having voting power to elect
a majority of the Board of Directors of such corporation (irrespective
of whether at the time capital stock of any other class or classes of
such corporation shall or might have voting power upon the occurrence
of any contingency);
(b) the interest in the capital or profits of such partnership
or joint venture; or
(c) the beneficial interest in such trust, estate or other
entity
is at the time directly or indirectly owned by such Person, by such Person
and one or more of its other Subsidiaries or by one or more of such Person's
other Subsidiaries.
"Syndication Period" means the period of time ending on November
15, 1994, or such earlier date as decided by the Administrative Agent and
Co-Agents.
"Tax Sharing Agreement" means the Tax Sharing Agreement, dated
April 30, 1993, between the Borrower and the Guarantor, as such may be
amended, restated or supplemented from time to time.
"Term Loan" means any of the Tranche A Term Loan, the Tranche B
Term Loan, the Tranche C Term Loan and the Tranche D Term Loan.
"Term Loan Commitment" means, for any Lender any of the Tranche
A Term Loan Commitment, the Tranche B Term Loan Commitment and the Tranche C
Term Loan Commitment.
"Term Note" means any of the Tranche A Term Notes (as defined in
Section 3.01), Tranche B Term Notes (as defined in Section 3.02), Tranche C
Term Notes (as defined in Section 3.03) and Tranche D Term Notes (as defined
in Section 3.04).
"Total Debt" means, without duplication, the obligations for
Borrowed Money (other than Subordinated Debt and Capital Lease Obligations)
of the Borrower and its Subsidiaries.
"Total Revolving Credit Commitment" has the meaning ascribed to
such term in Section 2.01.
"Trademark Security Agreement" means the trademark security
agreement, substantially in the form of Exhibit P, to be delivered by the
Borrower pursuant to Section 8.01(p).
"Tranche A Lenders" means, collectively as of any date, Lenders
having a Tranche A Term Loan Commitment or an outstanding Tranche A Term
Loan on such date.
"Tranche A Term Loan" has the meaning ascribed to such term in
Section 3.01.
"Tranche A Term Loan Commitment" has the meaning ascribed to
such term in Section 3.01.
"Tranche B Lenders" means, collectively as of any date, Lenders
having a Tranche B Term Loan Commitment or an outstanding Tranche B Term
Loan on such date.
"Tranche B Term Loan" has the meaning ascribed to such term in
Section 3.02.
"Tranche B Term Loan Commitment" has the meaning ascribed to
such term in Section 3.02.
"Tranche C Commitment Fee" has the meaning ascribed to such term
in Section 3.03(b).
"Tranche C Lenders" means, collectively as of any date, Lenders
having a Tranche C Term Loan Commitment or an outstanding Tranche C Term
Loan on such date.
"Tranche C Term Loan" has the meaning ascribed to such term in
Section 3.03.
"Tranche C Term Loan Commitment" has the meaning ascribed to
such term in Section 3.03.
"Tranche D Lenders" means, collectively as of any date, Lenders
having an outstanding Tranche D Term Loan on such date.
"Tranche D Term Loan" has the meaning ascribed to such term in
Section 3.04.
"Unfunded Vested Liabilities" means, with respect to any Plan,
the amount (if any) by which the present value of all vested benefits under
the Plan exceeds the fair market value of all Plan assets allocable to such
benefits, as determined on the most recent valuation date of the Plan and in
accordance with the provisions of ERISA for calculating the potential
liability of the Borrower or any ERISA Affiliate to the PBGC or the Plan
under Title IV of ERISA.
"Wholly Owned Subsidiary" means, as to any Person, any
corporation, partnership, joint venture, trust, estate or other entity of
which (or in which) more than 100% of:
(a) the outstanding capital stock of such corporation;
(b) the interest in the capital or profits of such partnership
or joint venture; or
(c) the beneficial interest in such trust, estate or other
entity
is at the time directly or indirectly owned by such Person, by such Person
and one or more of its other Subsidiaries or by one or more of such Person's
other Subsidiaries.
ARTICLE II
THE REVOLVING CREDIT LOANS; LETTERS OF CREDIT
Section 2.01. The Revolving Credit Loans. Subject to the terms
and conditions of this Agreement, each of the Revolving Credit Lenders,
severally and not jointly with the other Lenders, agrees to make loans
("Revolving Credit Loans") to the Borrower from time to time during the
period from the Effective Date until March 31, 2000 (the "Revolving Credit
Termination Date") in an aggregate principal amount at any one time
outstanding not to exceed in the case of each Revolving Credit Lender the
amount set forth opposite such Revolving Credit Lender's name on Schedule 1,
as such amount may be changed from time to time pursuant to the terms of
this Agreement (for each Revolving Credit Lender, its "Revolving Credit
Commitment" and for all the Revolving Credit Lenders, the "Total Revolving
Credit Commitment"). The aggregate principal amount of Acquisition
Borrowings outstanding at any time shall not exceed the Acquisition
Sublimit; the aggregate principal amount of General Purpose Borrowings,
together with the aggregate amount of Letter of Credit Obligations,
outstanding at any time shall not exceed the General Purposes Sublimit; and
the aggregate amount of Letter of Credit Obligations outstanding at any time
shall not exceed the Letter of Credit Sublimit.
Section 2.02. Procedure for Revolving Credit Borrowings. (a)
The Borrower may borrow pursuant to this Article II by giving written notice
by telecopier to the Administrative Agent prior to 11:00 A.M., New York
time, on the Borrowing Date, in the case of ABR Revolving Loans, and at
least three Business Days' prior to the Borrowing Date, in the case of
Eurodollar Revolving Loans, of its request for Revolving Credit Loans, which
borrowing shall, be (x) in the aggregate principal amount of $5,000,000 or
an integral multiple of $1,000,000 in excess thereof, in the case of
Eurodollar Revolving Loans, or (y) in the aggregate principal amount of
$500,000 or an integral multiple thereof, in the case of ABR Revolving
Loans, such notice to be substantially in the form of Exhibit G. Such
notice shall specify (i) the date of the proposed borrowing (the "Borrowing
Date"), (ii) the amount of such Revolving Credit Borrowing, (iii) whether
the Revolving Credit Loans are to bear interest as ABR Revolving Loans or
Eurodollar Revolving Loans, (iv) if the Revolving Credit Loans are to bear
interest as Eurodollar Revolving Loans, the initial Interest Period
therefor, and (v) whether such Revolving Credit Borrowing is to be a General
Purpose Borrowing or an Acquisition Borrowing.
(a) Upon receipt of any such notice from the Borrower, the
Administrative Agent shall forthwith give notice to each Lender of the
substance of such notice. Subject to the foregoing sentence, and upon
satisfaction of the applicable conditions set forth in Article VII hereof,
not later than 1:00 P.M., New York time, on the Borrowing Date specified in
such notice, each Revolving Credit Lender shall make available to the
Administrative Agent in immediately available funds at the Principal Office
of the Administrative Agent, such Revolving Credit Lender's pro rata share
(based on the Total Revolving Credit Commitment) of the requested Revolving
Credit Borrowing.
(b) Upon receipt by the Administrative Agent of all such
funds, the Administrative Agent shall disburse to the Borrower the Revolving
Credit Borrowing requested in such notice. The Administrative Agent may,
but shall not be required to, advance on behalf of any Revolving Credit
Lender such Revolving Credit Lender's Revolving Credit Loan on a Borrowing
Date unless such Revolving Credit Lender shall have notified the
Administrative Agent prior to the Borrowing Date that it does not intend to
make available its Revolving Credit Loan on such date. If the
Administrative Agent makes such advance, the Administrative Agent shall be
entitled to recover such amount on demand from the Revolving Credit Lender
on whose behalf such advance was made, and if such Lender does not pay the
Administrative Agent the amount of such advance on demand, the Borrower
shall promptly pay such amount to the Administrative Agent. The
Administrative Agent shall be entitled to recover from the Revolving Credit
Lender or the Borrower, as the case may be, interest on the amount advanced
by it for each day such amount is made available at a rate per annum equal
to the applicable rate on the Revolving Credit Loans made on the Borrowing
Date.
Section 2.03. Revolving Credit Notes. The Borrower's
obligation to repay the Revolving Credit Loans shall be evidenced by
promissory notes of the Borrower, substantially in the form of Exhibit H
(each, a "Revolving Credit Note"), one such payable to the order of each
Revolving Credit Lender. The Revolving Credit Note of each Revolving Credit
Lender shall be in the principal amount of such Revolving Credit Lender's
Revolving Credit Commitment, dated the date of the initial Revolving Credit
Loan and be stated to mature on the Revolving Credit Termination Date and
bear interest from the date thereof until maturity on the principal balance
from time to time outstanding thereunder at the rates provided herein. Each
Revolving Credit Lender is authorized to indicate upon the grid attached to
its Revolving Credit Note the principal amount of all Revolving Credit Loans
made by it pursuant to this Agreement, all interest elections and payments
of principal and interest thereon. Such notations shall be presumed correct
absent manifest error, but the failure by such Revolving Credit Lender to
make such notations or the inaccuracy or incompleteness of any such
notations shall not affect the obligations of the Borrower hereunder or
under the Revolving Credit Notes.
Section 2.04. Revolving Credit Commitment Fee. The Borrower
shall pay to the Administrative Agent for the pro rata (based on the Total
Revolving Credit Commitment) account of the Revolving Credit Lenders a fee
(the "Revolving Credit Commitment Fee") equal to 1/2 of 1% per annum (on the
basis of a 360-day year for the actual number of days elapsed) on the daily
average unutilized amount of the Total Revolving Credit Commitment from the
date hereof to the Revolving Credit Termination Date. Such fee shall be
payable in arrears on the last Business Day of each calendar quarter,
commencing on the first such date after the date hereof, and on the
Revolving Credit Termination Date.
Section 2.05. Cancellation or Reduction of Revolving Credit
Commitment. (a) Optional Reductions. The Borrower shall have the right,
upon not less than three Business Days' written notice to the Administrative
Agent and upon payment of the Revolving Credit Commitment Fee accrued
through the date of such cancellation or reduction, to cancel the Total
Revolving Credit Commitment in full or to reduce the amount thereof in an
aggregate amount of not less than $5,000,000 or an integral multiple of
$1,000,000 in excess thereof at any time; provided that the amount of the
Total Revolving Credit Commitment shall at no time be less than the unpaid
principal amount of all Revolving Credit Loans and Letter of Credit
Obligations then outstanding. All cancellations or reductions shall be
permanent.
(b) Mandatory Reductions; Termination. (i) The General
Purpose Sublimit, and the Total Revolving Credit Commitment, shall be
reduced by $10,000,000 on the first anniversary of the Effective Date if the
Tranche C Term Loan shall not have been borrowed in full prior to that date.
On the third anniversary of the Closing Date, the Acquisition Sublimit will
terminate, and the Total Revolving Credit Commitment will be reduced by the
amount of the Acquisition Sublimit then in effect. The Revolving Credit
Commitment shall be reduced to $0 pursuant to the mandatory prepayment
described in Section 3.08. All such reductions shall be permanent.
(ii) In the event that (A) the aggregate unpaid principal
amount of the outstanding Revolving Credit Loans together with aggregate
Letter of Credit Obligations shall at any time exceed the Total Revolving
Credit Commitment, (B) the aggregate unpaid principal amount of outstanding
General Purpose Borrowings, together with the aggregate amount of Letter of
Credit Obligations, shall at any time exceed the General Purposes Sublimit
or (C) the aggregate unpaid principal amount of the Acquisition Borrowings
shall at any time exceed the Acquisition Sublimit, then in each case, such
excess shall be immediately due and payable to the Revolving Credit Lenders,
pro rata (based on the Total Revolving Credit Commitment).
Section 2.06. Optional and Mandatory Prepayment. The Borrower
shall have the right, on not less than three Business Days' written notice
to the Administrative Agent, in the case of Eurodollar Revolving Loans, and
not less than one Business Day's written notice to the Administrative Agent,
in the case of ABR Revolving Loans, to prepay Revolving Credit Loans of the
Revolving Credit Lenders bearing interest on the same basis and having the
same Interest Periods, if any, in whole or in part, without premium or
penalty, and if in part, in the aggregate principal amount of (x) $5,000,000
or in integral multiples of $1,000,000, in the case of Eurodollar Revolving
Loans and (y) $500,000 or in integral multiples thereof, in the case of ABR
Revolving Loans, in each case together with accrued interest on the
principal being prepaid to the date of prepayment, and in the case of
Eurodollar Revolving Loans, any amounts required by Section 5.03. Subject
to Section 2.01, amounts prepaid may be reborrowed. Revolving Loans also
are subject to the special mandatory prepayment provisions set forth in
Section 3.08.
Section 2.07. Conversion to Term Loans. On the third
anniversary of the Closing Date, all outstanding Acquisition Borrowings
shall automatically convert to a term loan (the "Tranche D Term Loan"), as
provided in Section 3.04.
Section 2.08. Letters of Credit. (a) From time to time until
but not including the Revolving Credit Termination Date, the Administrative
Agent agrees to issue Letters of Credit, upon written notice to the
Administrative Agent by the Borrower (a "Letter of Credit Request"), which
notice shall (i) specify, with respect to such requested Letter of Credit,
(x) the requested Issuance Date, (y) the aggregate amount of the Letter of
Credit Obligations with respect to the requested Letter of Credit, and (z)
the expiration date of the requested Letter of Credit, (ii) certify that,
after issuance of the requested Letter of Credit, the sum of the aggregate
amount of the Letter of Credit Obligations of all the Revolving Credit
Lenders then outstanding (x) will not exceed the Letter of Credit Sublimit
and (y) together with the aggregate principal amount of outstanding General
Purpose Borrowings and the outstanding Letter of Credit Obligations, will
not exceed the General Purposes Sublimit of the Total Revolving Credit
Commitment then in effect, and (iii) be accompanied by such application and
agreement for a letter of credit, and such other documents, as the
Administrative Agent may reasonably specify to such Borrower from time to
time, all in form and substance reasonably satisfactory to the
Administrative Agent. The amount stated to be available for drawing under
any such Letter of Credit shall be deemed usage of such amount of the Letter
of Credit Sublimit and the General Purposes Sublimit. The aggregate amount
of Letter of Credit Obligations outstanding at any time shall not exceed the
Letter of Credit Sublimit. Each Letter of Credit shall be for a period of
no longer than one year and shall expire on or prior to the Revolving Credit
Termination Date. The other terms and conditions in respect of such Letters
of Credit shall be as may be agreed upon between the Administrative Agent
and the Borrower. (b) Procedure for Requesting Letters of Credit.
The Borrower may request that the Administrative Agent issue a Letter of
Credit pursuant to Section 2.08(a) by delivering a Letter of Credit Request
to the Administrative Agent prior to 10:00 A.M., New York City time, not
less than five Business Days prior to the proposed Issuance Date of the
Letter of Credit. Upon receipt of any Letter of Credit Request from the
Borrower, the Administrative Agent shall forthwith give notice to each
Revolving Credit Lender of the substance thereof. On the Issuance Date
specified by the Borrower in such notice, the Administrative Agent will
issue such Letter of Credit substantially as specified in such Letter of
Credit Request.
(c) Participation by Lenders. Immediately upon the issuance of
a Letter of Credit, each Revolving Credit Lender other than the
Administrative Agent shall be deemed to, and hereby agrees to, have
irrevocably and unconditionally purchased from the Administrative Agent a
participation in such Letter of Credit and each drawing thereunder in an
amount equal to such Revolving Credit Lender's pro rata share (based on the
Total Revolving Credit Commitment) of the maximum amount which is or at any
time may become available to be drawn thereunder.
(d) Deposit upon Acceleration. If an Event of Default shall
have occurred and any loan is declared due and payable prior to the
scheduled maturity thereof, then the Borrower shall deposit funds in a cash
collateral account maintained with the Administrative Agent in an aggregate
amount equal to the then outstanding amount of Letter of Credit Obligations;
or if available amounts under outstanding Letters of Credit exceed the
amount of the Letter of Credit Sublimit, then the Borrower shall deposit
funds in a cash collateral account maintained with the Administrative Agent
in an aggregate amount equal to such excess. The Borrower hereby grants the
Administrative Agent a security interest in all such funds and in any
investments made therewith or proceeds thereof to secure payment to the
Administrative Agent of reimbursement obligations with respect to
outstanding Letters of Credit. In the event that the Administrative Agent
pays any drawing under a Letter of Credit, the Administrative Agent may
withdraw funds on deposit to make reimbursement of such drawing, in an
amount equal to such drawing. Upon payment by the Borrower of all
reimbursement obligations with respect to Letters of Credit, the termination
or other expiration of all Letters of Credit and the termination of the
Total Revolving Credit Commitment, remaining funds on deposit in the cash
collateral account shall be returned promptly to the Borrower, subject to
Section 12.02 hereof.
(e) Drawings and Reimbursement. (i) In the event of any
drawing under a Letter of Credit by the beneficiary thereof, the
Administrative Agent shall promptly notify the Borrower. By not later than
3:00 P.M., New York time, on the day on which such drawing is honored (or,
if such drawing occurs after 3:00 P.M., New York time, on the next
succeeding Business Day) the Borrower shall reimburse the Administrative
Agent in an amount equal to the amount of such drawing in immediately
available funds. All unreimbursed drawings under Letters of Credit shall
automatically convert to and be deemed to be ABR Revolving Loans held
proportionately by the Revolving Credit Lenders.
(ii) If the Borrower shall fail to reimburse the Administrative
Agent as provided in Section 2.08(e)(i), in an amount equal to the amount of
any drawing honored by the Administrative Agent under a Letter of Credit,
the Administrative Agent shall promptly notify each Revolving Credit Lender
of the unreimbursed amount of such drawing and of such Revolving Credit
Lender's respective participation therein. Not later than 12:00 P.M., New
York time, on the Business Day after the date notified by the Administrative
Agent, each Revolving Credit Lender shall make available to the
Administrative Agent in immediately available funds at the office of the
Administrative Agent an amount equal to its respective participation. In
the event that any Revolving Credit Lender fails to make available to the
Administrative Agent on such Business Day the amount of such Revolving
Credit Lender's participation in such Letter of Credit as provided in this
2.08(e)(ii), the Administrative Agent shall be entitled to recover such
amount on demand from such Revolving Credit Lender, together with interest
thereon at a rate per annum equal to (i) from (and including) such Business
Day to (and including) the third Business Day thereafter, the Federal Funds
Rate, and (ii) from (but excluding) such third Business Day, the sum of 2%
and the Base Rate.
(f) Letter of Credit Fees. Borrower agrees to pay to the
Administrative Agent a fee (an "Issuance Fee") equal to .25% per annum and
to Administrative Agent for the pro rata accounts (based on the Total
Revolving Credit Commitment) of the Revolving Credit Lenders a fee (a
"Letter Of Credit Fee") equal in the aggregate to 2.25% per annum (on the
basis of the actual number of days elapsed over a year of 360 days) on the
daily amount stated to be available from time to time for drawing under each
Letter of Credit from (and including) the Issuance Date until (but
excluding) the expiration date of such Letter of Credit, payable in arrears
on the last Business Day of each calendar quarter, commencing on the first
such date after the applicable Issuance Date, and on such expiration date.
(g) Unconditional Reimbursement Obligation. The obligation of
the Borrower to reimburse the Administrative Agent for drawings made under
Letters of Credit issued for the account of the Borrower and the obligations
of the Revolving Credit Lenders under Section 2.08(e)(ii) shall be
unconditional and irrevocable and shall be paid strictly in accordance with
the terms of this Agreement under all circumstances, including the following
circumstances:
(i) any lack of validity or enforceability of any Letter of
Credit;
(ii) the existence of any claim, set-off, defense or other
right which the Borrower or any Affiliate may have at any time against a
beneficiary or any transferee of any Letter of Credit (or any persons or
entities for whom any such beneficiary or transferee may be acting), the
Administrative Agent, any Lender or any other Person, whether in connection
with this Agreement or otherwise, the transactions contemplated herein or
therein or any unrelated transaction;
(iii) any draft, demand, certificate or any other document
presented under any Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein being untrue
or inaccurate in any respect;
(iv) payment by the Administrative Agent under any Letter of
Credit against presentation of a demand, draft or certificate or other
document which does not comply with the terms of this Agreement or such
Letter of Credit; provided that this subsection shall not relieve the
Administrative Agent of any liability determined to have resulted from the
gross negligence or willful misconduct of the Administrative Agent; or
(v) any other circumstance or happening whatsoever, which is
similar to any of the foregoing; provided that this subsection shall not
relieve the Administrative Agent of any liability determined to have
resulted from the gross negligence or willful misconduct of the
Administrative Agent.
ARTICLE III
THE TERM LOANS
Section 3.01. The Tranche A Term Loans. Subject to the terms
and conditions hereof, on the Closing Date each Tranche A Lender, severally
and not jointly with the other Lenders, agrees to make a Tranche A term loan
to the Borrower (each, a "Tranche A Term Loan") in a single borrowing in an
amount equal to the principal amount set forth opposite such Tranche A
Lender's name on Schedule 2, as such amount may be changed from time to time
pursuant to the terms of this Agreement (for each Tranche A Lender, its
"Tranche A Term Loan Commitment"). The Borrower's obligation to repay the
Tranche A Term Loans shall be evidenced by promissory notes of the Borrower,
substantially in the form of Exhibit I (each, a "Tranche A Term Note"), one
such promissory note payable to the order of each Tranche A Lender. The
Tranche A Term Note of each Tranche A Lender shall be in the principal
amount of such Tranche A Lender's Tranche A Term Loan, dated the date on
which the Tranche A Term Loan is made and be stated to mature in
installments as set forth in Section 3.06(a) and bear interest from the date
thereof until maturity on the unpaid principal amount of the Tranche A Term
Loan, payable at the rates and in the manner determined pursuant to Section
4.03.
Section 3.02. The Tranche B Term Loans. Subject to the terms
and conditions hereof, on the Closing Date each Tranche B Lender, severally
and not jointly with the other Lenders, agrees to make a Tranche B term loan
to the Borrower (each, a "Tranche B Term Loan") in a single borrowing in an
amount equal to the principal amount set forth opposite such Tranche B
Lender's name on Schedule 3, as such amount may be changed from time to time
pursuant to the terms of this Agreement (for each Tranche B Lender, its
"Tranche B Term Loan Commitment"). The Borrower's obligation to repay the
Tranche B Term Loans shall be evidenced by promissory notes of the Borrower,
substantially in the form of Exhibit J (each, a "Tranche B Term Note"), one
such promissory note payable to the order of each Tranche B Lender. The
Tranche B Term Note of each Tranche B Lender shall be in the principal
amount of such Tranche B Lender's Tranche B Term Loan, dated the date on
which the Tranche B Term Loan is made and be stated to mature in
installments as set forth in Section 3.06(b) hereof and bear interest from
the date thereof until maturity on the unpaid principal amount of the
Tranche B Term Loan, payable at the rates and in the manner determined
pursuant to Section 4.03.
Section 3.03. The Tranche C Term Loans. (a) Subject to the
terms and conditions hereof, during the period from the Effective Date until
the first anniversary of the Effective Date, each Tranche C Lender,
severally and not jointly with the other Lenders, agrees to make a term loan
to the Borrower (each, a "Tranche C Term Loan") in a single borrowing in an
amount equal to the principal amount set forth opposite such Tranche C
Lender's name on Schedule 4, as such amount may be changed from time to time
pursuant to the terms of this Agreement (for each Tranche C Lender, its
"Tranche C Term Loan Commitment"). The Borrower's obligation to repay the
Tranche C Term Loans shall be evidenced by promissory notes of the Borrower,
substantially in the form of Exhibit K (each, a "Tranche C Term Note"), one
such promissory note payable to the order of each Tranche C Lender. The
Tranche C Term Note of each Tranche C Lender shall be in the principal
amount of such Tranche C Lender's Tranche C Term Loan, dated the date on
which the Tranche C Term Loan is made and be stated to mature in
installments as set forth in Section 3.06(c) and bear interest from the date
thereof until maturity on the unpaid principal amount of the Tranche C Term
Loan, payable at the rates and in the manner determined pursuant to Section
4.03.
(b) The Borrower shall pay to the Administrative Agent for the
pro rata account (based on the respective Tranche C Term Loan Commitments)
of the Tranche C Lenders a fee (the "Tranche C Commitment Fee") equal to 1/2
of 1% per annum (on the basis of a 360-day year for the actual number of
days elapsed) on the daily average unutilized amount of the Tranche C Term
Loan Commitment from the date hereof to the date on which the Tranche C Term
Loans are made or on which the Tranche C Term Loan Commitments expire or are
cancelled. Such fee shall be payable in arrears on the last Business Day of
each calendar quarter, commencing on the first such date after the date
hereof, and on the date on which the Tranche C Term Loans are made or, if
the Tranche C Term Loans are not made, the Tranche C Term Loan Commitments
expire or are cancelled.
Section 3.04. The Tranche D Term Loans. Subject to the terms
and conditions hereof, all Acquisition Borrowings outstanding on the third
anniversary of the Closing Date shall automatically be converted to term
loans (the "Tranche D Term Loans"). The Borrower's obligation to repay the
Tranche D Term Loans shall be evidenced by promissory notes of the Borrower,
substantially in the form of Exhibit L (each, a "Tranche D Term Note"), one
such promissory note payable to the order of each Tranche D Lender. The
Tranche D Term Note of each Tranche D Lender shall be executed and delivered
on the third anniversary of the Closing Date, in the principal amount of
such Lender's Tranche D Term Loan, dated the third anniversary of the
Closing Date and stated to mature in installments as set forth in Section
3.06(d) hereof and bear interest from the date thereof until maturity on the
unpaid principal amount payable at the rates and in the manner determined
pursuant to Section 4.03.
Section 3.05. Procedure for Making Term Loans. (a) The
Borrower may borrow Tranche A Term Loans and Tranche B Term Loans pursuant
to this Article III by giving the Administrative Agent written notice by
telecopier prior to 12:00 noon, New York time, not less than one Business
Day prior to the Effective Date of its request for such Term Loans, such
notice to be substantially in the form of Exhibit M.
(b) The Borrower may borrow Tranche C Term Loans pursuant to
this Article III by giving the Administrative Agent prior to 12:00 noon, New
York time, not less than one Business Day's written notice by telecopier, in
the case that the Tranche C Term Loans are to be borrowed as ABR Term Loans,
and three Business Days' written notice, in the case that the Tranche C Term
Loans are to be borrowed as Eurodollar Term Loans, of its request for
Tranche C Term Loans, which shall be in the aggregate amount of $5,000,000
or an integral multiple of $1,000,000 in excess thereof, in the case of
Eurodollar Term Loans, and in the aggregate amount of $500,000 or an
integral multiple thereof, in the case of ABR Term Loans, such notice to be
substantially in the form of Exhibit N. Such notice shall specify (i) the
date of the proposed borrowing of Tranche C Term Loans (the "Borrowing
Date"), (ii) the amount of such Tranche C Term Loans, (iii) whether the
Tranche C Term Loans are to bear interest as ABR Term Loans or Eurodollar
Term Loans and (iv) if the Tranche C Term Loans are to bear interest as
Eurodollar Term Loans, the term of the initial Interest Period therefor.
(c) Upon receipt of any notice referred to in subsections (a)
or (b) from the Borrower, the Administrative Agent shall promptly give
notice to each Lender of the relevant Lender Class of the substance of such
notice. Not later than 1:00 P.M., New York time, on the Borrowing Date
specified in such notice, and upon satisfaction of the applicable conditions
set forth in Article VII hereof, each Lender shall make available to the
Administrative Agent in immediately available funds at the Principal Office
of the Administrative Agent, such Lender's pro rata share (based on the
Tranche A Term Loan Commitments, Tranche B Term Loan Commitments or Tranche
C Term Loan Commitments, as the case may be) of the requested Term Loans.
(d) Upon receipt by the Administrative Agent of all such
funds, the Administrative Agent shall disburse to the Borrower the Term
Loans requested in such notice. The Administrative Agent may, but shall not
be required to, advance on behalf of any Lender such Lender's Term Loan on a
Borrowing Date unless such Lender shall have notified the Administrative
Agent prior to the Borrowing Date that it does not intend to make available
its Term Loan on such date. If the Administrative Agent makes such advance,
the Administrative Agent shall be entitled to recover such amount on demand
from the Lender on whose behalf such advance was made, and if such Lender
does not pay the
Admistrative Agent the amount of such advance on demand, the Borrower shall
promptly pay such amount to the Administrative Agent. The Administrative
Agent shall be entitled to recover from the Lender or the Borrower, as the
case may be, interest on the amount advanced by it for each day such amount
is made available at a rate per annum equal to the applicable rate on the
Term Loans made on the Borrowing Date.
Section 3.06. Repayment. (a) The principal of the Tranche A
Term Loans shall be due and payable in the following installments:
$4,250,000 on June 30, 1995; $4,250,000 on December 31, 1995; $4,500,000 on
June 30, 1996; $4,500,000 on December 31, 1996; $4,625,000 on June 30, 1997;
$4,625,000 on December 31, 1997; $5,937,500 on June 30, 1998; $5,937,500 on
December 31, 1998; $6,062,500 on June 30, 1999; $6,062,500 on December 31,
1999; and $9,250,000 (together with any and all amounts then due and payable
under the Credit Documents but unpaid) on March 31, 2000.
(b) The principal of the Tranche B Term Loans shall be due and
payable in the following installments: eleven installments of $125,000 each
on June 30 and December 31 of each year, commencing on June 30, 1995 and
continuing through June 30, 2000; $4,000,000 on December 31, 2000;
$7,000,000 on June 30, 2001; $7,000,000 on December 31, 2001; and
$10,625,000 (together with any and all amounts then due and payable under
the Credit Documents but unpaid) on March 31, 2002.
(c) The principal of the Tranche C Term Loans shall be due and
payable in the following installments: $4,000,000 on December 31, 2002; and
$16,000,000 (together with any and all amounts then due and payable under
the Credit Documents but unpaid) on March 31, 2003.
(d) The principal of the Tranche D Term Loans shall be due and
payable in six equal installments as follows: (i) semi-annually on June 30
and December 31 in each year, commencing December 31, 1997 and ending on
December 31, 1999 and (ii) on March 31, 2000 (together with any and all
amounts then due and payable under the Credit Documents).
Section 3.07. Optional and Mandatory Prepayments. (a)
Optional Prepayments. The Borrower shall have the right, on not less than
three Business Days' written notice to the Administrative Agent in the case
of Eurodollar Term Loans, and not less than one Business Day's written
notice to the Administrative Agent in the case of ABR Term Loans, to prepay
portions of the Term Loans of the Lenders bearing interest on the same basis
and having the same Interest Periods in whole or in part, without premium or
penalty, (i) in the aggregate principal amount of $5,000,000 or an integral
multiple of $1,000,000 in excess thereof in the case of Eurodollar Term
Loans and (ii) in the aggregate amount of $500,000 or an integral multiple
thereof in the case of ABR Term Loans, in each case together with accrued
interest on the principal being prepaid to the date of prepayment, and, in
the case of Eurodollar Term Loans which are prepaid prior to the last day of
the Interest Period therefor, the amounts required by Section 5.03. All
prepayments pursuant to this Section 3.07(a) shall be permanent.
(b) Mandatory Prepayments. (i) The Borrower shall prepay the
Loans within 20 days after receipt of the audit report delivered pursuant to
Section 8.01(a)(ii) for each fiscal year, commencing with the fiscal year
ending December 31, 1995, in an amount equal to 75% of Excess Cash Flow for
each such fiscal year ending prior to the drawdown of the Tranche C Term
Loan and 50% of Excess Cash Flow for each fiscal year thereafter.
(ii) Subject to the immediately following sentence, within 5
Business Days after any Asset Sale permitted hereunder, the Borrower shall
prepay Loans in an amount equal to the net after-tax proceeds in the form of
cash or cash equivalents received by the Borrower or a Subsidiary of the
Borrower from such Asset Sale. The Borrower may, in any one-year period,
use or designate to be used an aggregate of up to $5,000,000 of net after-
tax proceeds of Asset Sales received in the form of cash or cash equivalents
(and segregate such proceeds until such time as such proceeds are so used or
the Borrower determines that the applicable acquisition will not occur) to
fund Permitted Acquisitions or Consolidated Capital Expenditures (in either
case, with respect to a Person not an Affiliate of the Borrower); provided,
however, that in the event that such net after-tax proceeds shall not be so
used within 180 days after the date of the Asset Sale to which such proceeds
relate, such proceeds shall immediately be applied to prepay Loans pursuant
to the preceding sentence (or upon any earlier determination by the Borrower
not to use such proceeds to fund Permitted Acquisitions or Consolidated
Capital Expenditures with respect to a Person not an Affiliate of the
Borrower).
(iii) The Borrower shall prepay Loans, within 5 Business Days
after receipt thereof by the Borrower, in an amount equal to (x) 100% of the
value of Net Proceeds of issuances of equity securities to Guarantor and its
Affiliates and (y) 50% of the Net Proceeds of issuances of equity securities
to others, in each case to the extent such Net Proceeds are not used or
designated to be used (and segregated by the Borrower until such time as
such funds are so used or the Borrower determines that the applicable
acquisition will not occur) to fund Permitted Acquisitions with respect to a
Person not an Affiliate of the Borrower; provided, however, that in the
event such Net Proceeds shall not be so used within 180 days after receipt
of such Net Proceeds by the Borrower, such Net Proceeds shall be applied so
to prepay Loans immediately (or upon any earlier determination by the
Borrower not so to use such Net Proceeds).
Section 3.08. Special Mandatory Prepayment. At the request of
the Required Lenders, all outstanding Loans shall be prepaid in full and all
outstanding Commitments shall be reduced to $0 if either (i) the Guarantor
ceases to be the direct or indirect beneficial owner of more than 50% of the
issued and outstanding shares of the Borrower's voting stock, or (ii) any
Person, other than Nelson Peltz, Peter May, or any Person controlled by one
or both of them, shall at any time acquire, directly or indirectly,
beneficial ownership or control of 50% or more of the issued and outstanding
shares of the Guarantor's voting stock, or (iii) less than a majority of the
members of the Board of Directors of the Borrower or the Guarantor shall be
Persons who either (a) were serving as directors on the Closing Date or (b)
were nominated as directors and approved by the vote of the majority of the
directors who are or were directors referred to in clause (a) above or this
clause (b).
Section 3.09. Additional Prepayment Provisions. (a) Pro Rata
Reduction. Each prepayment (i) shall reduce pro rata each of the Tranche A
Term Loans, Tranche B Term Loans and Tranche D Term Loans (to the extent
they exist) and thereafter shall reduce pro rata the Tranche C Loans and
thereafter shall reduce pro rata the Total Revolving Credit Commitment and
(ii) shall reduce the installments of each such Loan pro rata among their
maturities; provided that any such reduction in the Total Revolving Credit
Commitment shall first be applied to the Acquisition Sublimit and thereafter
to the General Purposes Sublimit. At the time of each such reduction of the
Total Revolving Credit Commitment, the Borrower shall be required to prepay
Revolving Credit Loans to the extent that the aggregate outstanding
principal amount of Revolving Credit Loans and outstanding Letter of Credit
Obligations would otherwise exceed the reduced Total Revolving Credit
Commitment.
(b) Breakage Costs. All prepayments shall be without any
premium or penalty, but the Borrower shall pay the amounts, if any, required
to be paid under Section 5.03 at the time of prepayment of any Eurodollar
Loans.
ARTICLE IV
INTEREST, METHOD OF PAYMENT, USE OF PROCEEDS
Section 4.01. Interest on ABR Loans. Each ABR Loan shall bear
interest from the date of such ABR Loan until maturity or earlier conversion
to a Eurodollar Loan, as the case may be, payable in arrears on the last
Business day of each calendar quarter of each year, commencing with the
first such date after the date hereof and at maturity at a rate per annum
(on the basis of a 360-day year for the actual number of days involved
whenever the Base Rate is based on the Federal Funds Rate and otherwise on
the basis of a 365/6-day year for the actual number of days involved) equal
to the sum of (i) the Applicable Margin and (ii) the Base Rate in effect
from time to time, which rate shall change as and when said Base Rate or
Applicable Margin shall change.
Section 4.02. Interest on Eurodollar Loans. (a) Each
Eurodollar Loan shall bear interest from the date of such Eurodollar Loan
during any applicable Interest Period, payable in arrears with respect to
Interest Periods of three months or less, on the last day of the applicable
Interest Period, and with respect to Interest Periods longer than three
months, on the three-month anniversary of the commencement of such Interest
Period and on the last day of such Interest Period, at a rate per annum (on
the basis of a 360-day year for the actual number of days involved),
determined by the Administrative Agent with respect to each applicable
Interest Period, equal to the sum of (i) the Applicable Margin and (ii)
LIBOR, which rate shall change as and when said Applicable Margin shall
change.
(b) The Interest Period for each Eurodollar Loan shall be
initially selected by the Borrower at least three Business Days prior to the
beginning of such Interest Period in its notice of borrowing pursuant to
Section 2.02, in the case of Eurodollar Revolving Loans, or pursuant to
Section 4.03, in the case of Eurodollar Term Loans. Subsequent Interest
Periods shall be selected pursuant to the procedures set forth in Section
4.03.
(c) Notwithstanding the foregoing: (i) if any Interest Period
for a Eurodollar Loan would otherwise end on a day which is not a Business
Day, such Interest Period shall be extended to the next succeeding Business
Day unless the result of such extension would be to carry such Interest
Period into another calendar month, in which event such Interest Period
shall end on the immediately preceding Business Day; and (ii) no Interest
Period for a Eurodollar Revolving Loan may extend beyond the Revolving
Credit Termination Date and no Interest Period for a Eurodollar Term Loan
may extend beyond the maturity of the respective Term Loans.
(d) Eurodollar Loans shall be made by each Lender from its
branch or Affiliate identified as its Eurodollar Lending Office on the
signature page hereto, or such other branch or Affiliate as it may hereafter
designate in writing to the Borrower and the Administrative Agent as its
Eurodollar Lending Office.
Section 4.03. Procedure for Interest Determination. (a)
Unless the Borrower shall make an election pursuant to subsection (b) of
this Section 4.03 that the Loans or portions thereof shall bear interest as
Eurodollar Loans, the Loans shall bear interest as ABR Loans.
Notwithstanding anything hereunder to the contrary, all Loans shall be ABR
Loans during the Syndication Period.
(b) The Borrower shall give the Administrative Agent not less
than three Business Days' written notice of its request for portions of the
Loans to bear interest as Eurodollar Loans. Such notice shall be in the
form of Exhibit O attached hereto and shall specify (i) the date on which
such election is to take effect (the "Election Date"), (ii) the aggregate
amount of the Loans which are to bear interest as ABR Loans or Eurodollar
Loans, and (iii) the term of the Interest Period therefor; provided,
however, that there shall at no time be Eurodollar Loans outstanding having
more than 10 different Interest Periods.
(a) Upon receipt of any such notice from the Borrower, the
Administrative Agent shall forthwith give notice to each Lender of the
substance thereof. Effective on such Election Date, the Loans or portions
thereof as to which the election was made, shall commence to accrue interest
as set forth in this Article IV for the interest rate selected by the
Borrower.
Section 4.04. Post Default Interest. After the occurrence of
any payment or financial covenant Event of Default (whether by acceleration
or otherwise), (i) all Applicable Margins shall increase by 2% per annum and
all Loans shall be maintained as ABR Loans at the end of each then existing
Interest Period, and (ii) such interest shall be payable on demand.
Section 4.05. Maximum Interest Rate. (a) Nothing in this
Agreement or the Notes shall require the Borrower to pay interest at a rate
exceeding the maximum rate permitted by applicable law. Neither this
Section nor Section 12.01 is intended to limit the rate of interest payable
for the account of any Lender to the maximum rate permitted by the laws of
the State of New York (or any other applicable law) if a higher rate is
permitted with respect to such Lender by supervening provisions of U.S.
Federal law.
(b) If the amount of interest payable for the account of any
Lender on any interest payment date in respect of the immediately preceding
interest computation period, computed pursuant to this Article IV, would
exceed the maximum amount permitted by applicable law to be charged by such
Lender, the amount of interest payable for its account on such interest
payment date shall automatically be reduced to such maximum permissible
amount.
(c) If the amount of interest payable for the account of any
Lender in respect of any interest computation period is reduced pursuant to
clause (b) of this Section and the amount of interest payable for its
account in respect of any subsequent interest computation period would be
less than the maximum amount permitted by law to be charged by such Lender,
then the amount of interest payable for its account in respect of such
subsequent interest computation period shall be automatically increased to
such maximum permissible amount; provided that at no time shall the
aggregate amount by which interest paid for the account of any Lender has
been increased pursuant to this clause (c) exceed the aggregate amount by
which interest paid for its account has theretofore been reduced pursuant to
clause (b) of this Section.
Section 4.06. Uses of Proceeds. It is understood and agreed
that funds provided by (a) Revolving Credit Loans made and Letters of Credit
issued under the General Purposes Sublimit may be used for general corporate
purposes of the Borrower, (b) Revolving Credit Loans made under the
Acquisition Sublimit may be used only for the purpose of making Permitted
Acquisitions, (c) Tranche A Term Loans and Tranche B Term Loans may be used
for the purpose of
repaying the Subordinated Debt in full, (d) Revolving Credit Loans, Tranche
A Term Loans and Tranche B Term Loans may be used for the purpose of making
a Restricted Payment or Restricted Payments to the Guarantor or its
Affiliates in an aggregate amount not to exceed $45,000,000 and (e) Tranche
C Term Loans may be used only for the purpose of making all or part of a
Restricted Payment or Payments to the Guarantor or its Affiliates in an
amount of up to $30 million in accordance with Section 8.02(e).
ARTICLE V
DISBURSEMENT AND PAYMENT
Section 5.01. Pro Rata Treatment. All payments of interest and
principal on the Revolving Credit Loans and the Tranche D Term Loans, each
payment of the Revolving Credit Commitment Fee and each reduction of the
Total Revolving Credit Commitment shall be apportioned among the Revolving
Credit Lenders pro rata in the proportion which their respective outstanding
Revolving Credit Commitments bear to the Total Revolving Credit Commitments.
All payments of interest and principal on the Tranche A Loans, and all
reductions of the Tranche A Term Loan Commitments, shall be apportioned
among the Tranche A Lenders pro rata in the proportion which their
respective Tranche A Term Loan Commitments bear to all of the Tranche A Term
Loan Commitments. All payments of interest and principal on the Tranche B
Term Loans, and all reductions of the Tranche B Term Loan Commitments, shall
be apportioned among the Tranche B Lenders pro rata in the proportion which
their respective Tranche B Term Loan Commitments bear to all of the Tranche
B Term Loan Commitments. All payments of interest and principal on the
Tranche C Term Loans, each payment of the Tranche C Term Loan Commitment Fee
and each reduction of the Tranche C Term Loan Commitment shall be
apportioned among the Tranche C Lenders pro rata in the proportion which
their respective Tranche C Commitments bear to all of the Tranche C Term
Loan Commitments.
Section 5.02. Method of Payment. All payments hereunder and
under the Notes shall be made to the Administrative Agent for the account of
the Lender or Lenders entitled thereto in lawful money of the United States
and in immediately available funds at the Principal Office of the
Administrative Agent at or prior to 1:00 P.M., New York time, on the date
when due. Any payment received after 1:00 P.M., New York time, shall be
deemed to have been made on the next succeeding Business Day.
Section 5.03. Compensation for Losses. In the event that the
Borrower makes any prepayment of a Eurodollar Loan (including upon
acceleration of the Notes as provided in Section 9.01) or in the event an
Election Date selected pursuant to Section 4.03 falls on a day other than
the last day of the Interest Period for the amount so prepaid or as to which
an election is made, or in the event the Borrower revokes any notice given
under Section 2.02, 3.05 or 4.03, the Borrower shall pay to each Lender upon
its demand an amount which will compensate such Lender for any loss or
premium or penalty reasonably incurred by such Lender (or, subject to
Section 12.09(b), any Participant in the related Eurodollar Loan) as a
result of such prepayment, election or revocation of notice in respect of
funds obtained for the purpose of making or maintaining such Eurodollar
Loan, or any part thereof. Such compensation shall include, without
limitation, an amount equal to the excess, if any, of (i) the amount of
interest which would have accrued on the amount so paid or prepaid, or not
borrowed, for the period from the date of such payment or prepayment or
failure to borrow to the last day of such Interest Period (or, in the case
of a failure to borrow, the Interest Period that would have commenced on the
date of such failure to borrow) in each case at the applicable rate of
interest for such Eurodollar Loan provided for herein over (ii) the amount
of interest (as reasonably determined by such Lender) which would have
accrued to such Lender or Participant on such amount by placing such amount
on deposit for a comparable period with leading banks in the London
interbank market; provided that such Lender shall have delivered to the
Borrower, within 60 days after the date of such payment or prepayment or
failure to borrow, a certificate as to the amount of such loss or expense,
which certificate shall set forth in reasonable detail the basis for such
loss or expense and shall be conclusive in the absence of error.
Section 5.04. (a) Additional Costs; Capital Adequacy.
Additional Costs. In the event that (i) any change in applicable law or
regulation or in the interpretation thereof by any Governmental Authority
charged with the administration thereof subjects any Lender to any tax of
any kind whatsoever with respect to this Agreement or changes the basis of
taxation of payments to any Lender of principal or interest payable on any
Eurodollar Loan (except for changes in (A) taxes based on or measured by the
net income of such Lender or (B) franchise taxes imposed on such Lender,
including without limitation, any branch profits taxes or any income taxes
imposed by means of withholding at the source) or (ii) there shall be
imposed on any Lender, directly or indirectly, any other condition affecting
this Agreement or any Note or the cost of U.S. dollar deposits obtained by
such Lender in the London interbank market and the result of any of the
foregoing is to increase the cost to such Lender of making or maintaining
any Eurodollar Loan by an amount which such Lender deems to be material,
then the Borrower shall pay to such Lender upon its demand the additional
amount or amounts necessary to compensate such Lender for such additional
cost; provided, that no such compensation shall be payable to the extent
that, in the reasonable opinion of such Lender, the Eurodollar Base Rate has
been adjusted to account for such increased cost.
(a) Capital Adequacy. If any Lender shall have reasonably
determined that the adoption, effectiveness or implementation of any
applicable law, rule or regulation regarding capital adequacy, or any change
therein, or any written change in the interpretation or administration
thereof by any Governmental Authority, central bank or comparable agency
charged with the interpretation thereof, or compliance by such Lender with
any request or directive regarding capital adequacy (whether or not having
the force of law) of any such authority, central bank or comparable agency,
has or would have the effect of reducing the rate of return on such Lender's
capital or assets as a consequence of its commitments or obligations
hereunder to a level below that which such Lender could have achieved but
for such adoption, effectiveness, change or compliance (taking into
consideration such Lender's policies with respect to capital adequacy), then
from time to time, upon demand, the Borrower shall pay to such Lender such
additional amount or amounts as will compensate such Lender for such
reduction.
(c) Lending Office Designations. Before giving any notice to
the Borrower pursuant to this Section 5.04, a Lender shall, if possible,
designate a different lending office if such designation will avoid the need
for giving such notice and will not, in the judgment of the Lender, be
otherwise disadvantageous to the Lender.
(d) Certificate, Etc. Each Lender shall promptly notify the
Borrower, with a copy to the Administrative Agent, upon becoming aware that
the Borrower may be required to make any payment pursuant to this Section
5.04. When requesting payment pursuant to this Section 5.04, each Lender
shall provide to the Borrower, with a copy to the Administrative Agent, a
certificate, signed by an officer of such Lender, setting forth the amount
required to be paid by the Borrower to such Lender and the computations made
by such Lender to determine such amount. Determinations and allocations by
such Lender for purposes of this Section 5.04 shall be conclusive, provided
that such determinations and allocations are made on a reasonable basis and
are mathematically accurate. In the absence of manifest error, such
certificate shall be conclusive and binding on the Borrower as to the amount
so required to be paid by the Borrower to such Lender.
Section 5.05. Unavailability. If at any time any Lender shall
have determined in good faith (which determination shall be conclusive in
the absence of manifest error) that the making or maintenance of any part of
such Lender's Eurodollar Loans has been made impracticable or unlawful
because of compliance by such Lender in good faith with any law or written
guideline or interpretation or administration thereof by any official body
charged with the interpretation or administration thereof or with any
request or directive of such body (whether or not having the effect of law),
because U.S. dollar deposits in the amount and requested maturity of a
Eurodollar Loan are not available to the Lender in the London Eurodollar
interbank market or because of any other reason, then the Administrative
Agent, upon notification to it of such determination by such Lender, shall
forthwith advise the other Lenders and the Borrower thereof. Upon such date
as shall be specified in such notice and until such time as the
Administrative Agent, upon notification to it by such Lender, shall notify
the Borrower and the other Lenders that the circumstances specified by it in
such notice no longer apply, (i) notwithstanding any other provision of this
Agreement, such Eurodollar Loan shall automatically and without requirement
of notice by the Borrower be converted to an ABR Loan and (ii) the
obligation of such Lender to allow borrowing, elections and renewals of
Eurodollar Loans shall be suspended, and, if the Borrower shall in a notice
of borrowing or election request that such Lender make a Eurodollar Loan,
the loan requested to be made by such Lender shall instead be made as an ABR
Loan.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that:
Section 6.01. Incorporation, Good Standing and Due
Qualification. (a) Each of the Borrower, its Subsidiaries and the
Guarantor is a corporation duly incorporated, validly existing and in good
standing under the laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its assets and to transact the business
in which it is now engaged or proposed to be engaged, and is duly qualified
as a foreign corporation to do business and is in good standing in every
jurisdiction where failure to be so qualified would materially and adversely
affect the business, properties or financial condition of the Borrower, its
Subsidiaries or the Guarantor, as the case may be.
(b) As of the date hereof the Borrower has, and as of the
Effective Date the Borrower will have, no Subsidiaries other than the
Subsidiaries listed in Schedule 5.
Section 6.02. Corporate Power and Authority; No Conflicts. The
execution, delivery and performance by each of the Borrower, its
Subsidiaries and the Guarantor of the Credit Documents to which it is a
party have been duly authorized by all necessary corporate action and do not
and will not: (a) require any consent or approval of its stockholders; (b)
contravene its charter or by-laws; (c) violate any provision of, or require
any filing (other than the filings necessary to perfect the security
interests granted by the Security Documents), registration, consent or
approval under, any law, rule, regulation (including, without limitation,
Regulations G, T, U or X), order, writ, judgment, injunction, decree,
determination or award presently in effect having applicability to the
Borrower or the Guarantor; (d) result in a breach of or constitute a default
or require any consent under any indenture or loan or credit agreement or
any other agreement, lease or instrument (which other agreements, leases or
instruments, individually or in the aggregate, are material in respect of
the Borrower or the Guarantor) to which the Borrower or the Guarantor is a
party or by which it or its properties may be bound or affected; (e) result
in, or require, the creation or imposition of any Lien (other than the Liens
to be created under the Security Documents) upon or with respect to any of
the properties now owned or hereafter acquired by the Borrower, any
Subsidiary or the Guarantor; or (f) cause the Borrower or the Guarantor to
violate or be in default under any such law, rule, regulation, order, writ,
judgment, injunction, decree, determination or award or any such indenture,
agreement, lease or instrument.
Section 6.03. Legally Enforceable Agreements. Each Credit
Document to which the Borrower, a Subsidiary of the Borrower or the
Guarantor is a party is, or when delivered under this Agreement will be, a
legal, valid and binding obligation of the Borrower, such Subsidiary or the
Guarantor, as the case may be, enforceable against the Borrower, such
Subsidiary or the Guarantor, as the case may be, in accordance with its
terms, except to the extent that such enforcement may be limited by
applicable bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium or other similar laws affecting creditors' rights generally and
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
Section 6.04. Litigation. Except as disclosed in the
Borrower's Quarterly Report on Form 10-Q for the quarter ended June 30,
1994, there are no actions, suits or proceedings pending or, to the
knowledge of the Borrower, threatened, against or affecting the Borrower,
any Subsidiary of the Borrower or the Guarantor before any court,
governmental agency or arbitrator, which, based upon the opinion of counsel
to the Borrower, are likely, in any one case or in the aggregate, materially
and adversely to affect the financial condition, operations, properties or
business of the Borrower and its Subsidiaries, taken as a whole, or the
Guarantor and its Subsidiaries, taken as a whole, or the ability of the
Borrower, any Subsidiary of the Borrower or the Guarantor to perform its
obligations under the Credit Documents to which it is a party.
Section 6.05. Financial Statements. The consolidated financial
statements of the Borrower and Public Gas for the year ended December 31,
1993 and the six-month period ended June 30, 1994, complete and true copies
of which have been furnished to each of the Lenders, fairly present the
financial condition of the Borrower and Public Gas as at such dates and the
results of the operations of the Borrower and Public Gas for the periods
covered by such statements, all in accordance with GAAP consistently
applied. At such dates, there were no material liabilities of the Borrower
and Public Gas, fixed or contingent, that are not reflected in the financial
statements or in the notes thereto. Since December 31, 1993, there has been
no material adverse change in the condition (financial or otherwise),
business, prospects or operations of the Borrower and its Subsidiaries,
taken as a whole.
Section 6.06. Taxes. The Borrower and the Guarantor have filed
all tax returns (federal, state and local) required to be filed (other than
any such returns the failure of which to be filed could not, individually or
in the aggregate, have a Material Adverse Effect) and have paid all taxes,
assessments and governmental charges and levies shown thereon to be due,
including interest and penalties, except for any of the foregoing which are
being contested in good faith by appropriate proceedings diligently pursued
and for which adequate reserves are maintained. As of the date of this
Agreement, the federal income tax liability of the Borrower consolidated for
federal tax purposes has been finally determined and satisfied for all
taxable years up to and including the taxable year ended April 30, 1984.
Section 6.07. ERISA. Each of the Plans is in compliance in all
material respects with all applicable provisions of ERISA. No Reportable
Event has occurred with respect to any Plan; no notice of intent to
terminate a Plan has been filed nor has any Plan been terminated, the
termination of which would result in liability to the Borrower or any
Subsidiary of the Borrower in an amount which could have a Material Adverse
Effect; no circumstance exists which constitutes grounds under Section 4042
of ERISA entitling the PBGC to institute proceedings to terminate, or
appoint a trustee to administer, a Plan, nor has the PBGC instituted any
such proceedings; neither the Borrower nor any ERISA Affiliate has
completely or partially withdrawn under Sections 4201 or 4204 of ERISA from
a Multiemployer Plan which withdrawal would result in liability to the
Borrower or any Subsidiary in an amount which could have a Material Adverse
Effect; the Borrower and each ERISA Affiliate has met its minimum funding
requirements under ERISA with respect to all of its Plans and there are no
Unfunded Vested Liabilities in an amount which could have a Material Adverse
Effect; and neither the Borrower nor any ERISA Affiliate has incurred any
liability to the PBGC under ERISA in an amount which could have a Material
Adverse Effect, which liability has not been satisfied.
Section 6.08. Operation of Business. The Borrower, each
Subsidiary of the Borrower and the Guarantor possess all licenses, permits,
franchises, patents, copyrights, trademarks and trade names, or rights
thereto, material to the conduct of their respective businesses
substantially as now conducted, and, to the best knowledge of the Borrower,
neither the Borrower nor any such Subsidiary nor the Guarantor is in
violation of any material rights of others with respect to any of the
foregoing.
Section 6.09. Environmental Protection. Except as set forth on
Schedule 6: all real property owned leased or operated by the Borrower is
free of contamination from any substance, or constituent thereof, currently
identified or listed as hazardous or toxic pursuant to the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. 9601, et
seq., or any other Environmental Laws, that could result in the incurrence
of material liabilities, or any other substance which could at any time
cause or constitute a health, safety or environmental hazard to any person
or property, including asbestos in any building, petroleum products, PCBs,
pesticides, or radioactive materials; the Borrower has not caused or
suffered to occur any release or discharge of any Contaminant into the
environment or any other conditions that could result in the incurrence of
material liabilities or any material violations of any Environmental Laws;
the Borrower has not caused or suffered to occur any condition on any of the
Borrower's property that could give rise to the imposition of any Lien under
applicable Environmental Laws; and the Borrower is not engaged in any
manufacturing or any other operations, other than the distribution of
propane products and the provision of lawn care services, that require the
use, handling, transportation, storage or disposal of any Contaminant, where
such operations require permits or are otherwise regulated pursuant to
applicable Environmental Laws.
Section 6.10. Margin Regulations. The making and repayment of
the Loans hereunder and the use of the proceeds thereof as contemplated
hereby will not violate any of the provisions of Regulation U, G, T or X of
the Board of Governors of the Federal Reserve System.
Section 6.11. No Material Misstatements. The information
relating to the Guarantor, the Borrower or their Subsidiaries contained in
the Credit Documents or the Security Documents (including all exhibits and
schedules) or delivered pursuant thereto are true and accurate in all
material respects, and the projected financial statements contained in the
Confidential Information Memorandum distributed to prospective Lenders were
based on estimates or assumptions that are believed by management of the
Borrower to have been reasonable on the date as of which such information is
stated or certified. There are no matters (other than matters of a general
economic, political or social nature which do not affect the Guarantor or
the Borrower uniquely) of which the Borrower has actual knowledge which,
individually or in the aggregate, could reasonably be expected to result in
a Material Adverse Effect, except as has been disclosed to the Lenders in
writing.
Section 6.12. Monthly Financial Statements. True and complete
copies of the monthly financial statements of the Borrower and Public Gas
for the period from January 1992 to July 1994 have heretofore been delivered
to the Lenders.
Section 6.13. Pro Forma Financial Statements. A true and
complete copy of the pro forma financial statement of the Borrower for the
year ended December 31, 1993 consolidating the operations of the Borrower
and Public Gas has heretofore been delivered to the Lenders.
ARTICLE VII
CONDITIONS OF LENDING
Section 7.01. Conditions to the Making of the Initial
Loans. The obligations of the Lenders to make the initial Revolving Credit
Loans, the Tranche A Term Loans, the Tranche B Term Loans or the Tranche C
Term Loans, or to issue Letters of Credit, are subject to the conditions
precedent that the Administrative Agent shall have received:
(a) This Agreement, duly executed by the Borrower and the
Lenders;
(b) The Notes, as set forth in Sections 2.03, 3.01 and 3.02
hereof, duly executed by the Borrower;
(c) A certificate executed by the Secretary or Assistant
Secretary of the Borrower, dated the Closing Date, (i) attesting to all
corporate action taken by the Borrower, including resolutions of its Board
of Directors, authorizing the execution, delivery and performance of the
Credit Documents to which the Borrower is a party; and (ii) certifying the
names and true signatures of the officers of the Borrower, authorized to
sign the Credit Documents to which it is a party and the other documents to
be delivered by the Borrower under this Agreement;
(d) A certificate executed by the Secretary or Assistant
Secretary of the Guarantor, dated the Closing Date, (i) attesting to all
corporate action taken by the Guarantor, including resolutions of its Board
of Directors, authorizing the execution, delivery and performance of the
Credit Documents to which the Guarantor is a party; and (ii) certifying the
names and true signatures of the officers of the Borrower, authorized to
sign the Credit Documents to which it is a party and the other documents to
be delivered by the Guarantor under this Agreement;
(e) Copies of the certificate of incorporation and by-laws,
each as amended, of each of the Borrower and the Guarantor, certified, in
the case of each such certificate of incorporation, as of a recent date by
the Secretary of State of the State of Delaware, and, in the case of such
by-laws, as of the Closing Date by the Secretary or Assistant Secretary of
the Borrower or the Guarantor, as applicable, as true, correct and complete;
(f) A certificate executed by the Chief Financial Officer of
the Borrower, dated the Closing Date, certifying as to (i) the accuracy of
the representations and warranties of the Borrower in the Credit Documents
to which it is a party as though made on and as of the Closing Date and (ii)
the absence of any event occurring and continuing that would constitute a
Default or an Event of Default;
(g) The favorable written opinion of Sullivan & Cromwell,
counsel to the Administrative Agent, with respect to documents received by
the Lenders and such legal matters as the Administrative Agent may
reasonably require;
(h) The favorable written opinions of Stuart I. Rosen,
Associate General Counsel of the Guarantor, and Moyer and Bergman, P.L.C.,
special counsel for the Borrower, each dated the Closing Date, in
substantially the forms contained in Exhibit P;
(i) The Guarantee, duly executed by the Guarantor;
(j) A true and complete copy of the Tax Sharing Agreement, as
in effect on the date of this Agreement;
(k) A duly executed Security Agreement in favor of the
Administrative Agent, as agent for the Lenders, together with:
(i) certificates representing the Securities referred to
therein accompanied by undated stock powers executed in blank,
(ii) executed financing statements, in form or forms
appropriate for filing under the Uniform Commercial Code in all
jurisdictions that the Administrative Agent may deem necessary or
desirable to perfect and protect the security interests created by the
Security Agreement,
(iii) completed requests for information, dated on or before
the Closing Date, listing the effective financing statements filed in
the jurisdictions referred to in clause (ii) above and such other
jurisdictions as the Administrative Agent may request that name the
Borrower or any Subsidiary as debtor, together with copies of such
other financing statements, and
(iv) evidence reasonably satisfactory to the Administrative
Agent that all other action that the Administrative Agent may deem
necessary or desirable to perfect and protect the security interests
created by the Security Agreement has been taken;
(l) A duly executed Pledge and Security Agreement between the
Guarantor and the Administrative Agent, as agent for the Lenders, together
with the securities referred to therein (accompanied by undated stock powers
endorsed in blank and all required stock transfer tax stamps) and evidence
reasonably satisfactory to the Administrative Agent that all other action
that the Administrative Agent may deem necessary, or desirable to perfect
and protect the security interests created by the Pledge and Security
Agreement has been taken;
(m) All fees due and payable on or prior to the Closing Date
by the Borrower to the Administrative Agent or the Lenders;
(n) The financial statements described in Section 6.05 and
projected financial statements of the Borrower, satisfactory to the Lenders,
showing the projected financial position, results of operations, changes in
capital and cash flows of the Borrower, its Subsidiaries and Public Gas
through the final maturity of the Loans;
(o) A certificate, dated the date of such initial Loans,
executed by the Chief Financial Officer or Controller of the Borrower, to
the effect that, on such date and after giving effect to such Loans and use
of the proceeds thereof, the Borrower is Solvent;
(p) A true and complete copy of the Borrower Management
Agreement, as in effect on the date hereof;
(q) Certificates of insurance with respect to all policies
maintained by or for the benefit of the Borrower or its Subsidiaries; and
(r) Such other approvals, opinions, instruments or documents
as the Lenders may reasonably request.
Section 7.02 Conditions Precedent to the Making of the Tranche
C Term Loans. The obligations of the Tranche C Term Lenders to make the
Tranche C Term Loans hereunder are subject to the further conditions
precedent that prior to or simultaneously with the funding of the Tranche C
Term Loans:
(a) Either (i) The SEPSCO 11-7/8% Bonds shall have been repaid
in full or irrevocably called for redemption or (ii) an amount sufficient to
repay such Bonds shall have been irrevocably deposited with the trustee with
respect to such Bonds in accordance with the terms thereof;
(b) The Borrower will have completed a merger with Public Gas
(the "Public Gas Merger"), and after giving effect thereto, no Default or
Event of Default shall have occurred and be continuing; and the
Administrative Agent shall have received a certificate, dated the Borrowing
Date and signed by a senior officer of the Borrower, to such effect, and, in
the event that the Borrower is not the surviving corporation in such merger,
an opinion of counsel, in form and substance reasonably acceptable to the
Lenders, to the effect that the merger has been consummated in accordance
with the terms and conditions set forth in the merger agreement and that the
Credit Documents to which the Borrower or a Subsidiary is a party, after
consummation of the Public Gas Merger, will constitute valid and legally
binding agreements of the surviving corporation enforceable in accordance
with their respective terms, except to the extent that such enforcement may
be limited by applicable bankruptcy, insolvency, fraudulent transfer, reor-
ganization, moratorium or other similar laws affecting creditors' rights
generally and general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law);
(c) The Administrative Agent shall have received copies of a
duly executed merger agreement pertaining to the Public Gas Merger, together
with copies of such other agreements, documents, instruments and opinions
pertaining to the Public Gas Merger as the Administrative Agent may request,
and such merger agreement and such other agreements, documents, instruments
and opinions each shall be in form and substance reasonably satisfactory to
the Administrative Agent;
(d) The Administrative Agent shall have received a pro forma
combined balance sheet of the Borrower as of the end of the last quarter
preceding the Tranche C Term Loan funding reflecting the Public Gas Merger
and in form reasonably satisfactory to the Administrative Agent;
(e) The Administrative Agent shall have received the Tranche C
Term Notes, as set forth in Section 3.03 hereof, duly executed by the
Borrower;
(f) The Administrative Agent shall have received a certificate,
dated the Borrowing Date, signed by the Chief Financial Officer or the
Controller of the Borrower to the effect that, on such date and after giving
effect to the Tranche C Loans and the use of the proceeds thereof, the
Borrower is Solvent; and
(g) There shall not have occurred any material adverse change
in the condition (financial or otherwise), business, prospects or operations
of Public Gas since December 31, 1993; and the Administrative Agent shall
have received a certificate, dated the Borrowing Date and executed by a
senior officer of the Borrower, to such effect.
Section 7.03. Conditions to the Making of Each Loan. The
obligation of each Lender to make each of its Revolving Credit Loans and the
Term Loans (including its initial Revolving Credit Loan and initial Term
Loan) and of the Administrative Agent to issue Letters of Credit hereunder
is subject to the further conditions precedent that, on the Borrowing Date
or issuance Date and after giving effect to such Loan or Letter of Credit
issuance, (a) the Borrower shall have complied and shall then be in
compliance in all material respects with all the terms, covenants and
conditions of this Agreement which are binding upon it and all of the Credit
Documents shall be in full force and effect (other than in accordance with
the terms thereof), (b) there shall have occurred and be continuing no
Default or Event of Default and (c) the representations and warranties
contained in Article VI shall be true and correct with the same effect as
though such representations and warranties had been made at the time of such
Loan or Letter of Credit issuance. The Borrower's notice of borrowing
pursuant to Section 2.02 or 3.05(a) and its Letter of Credit Request
pursuant to Section 2.08(a), and the Borrower's acceptance of proceeds of
Loans or of a Letter of Credit, each shall be deemed to constitute a
certification to the effect set forth in subsections (a), (b) and (c) of
this section.
Section 7.04. Conditions Precedent to Revolving Credit Loans
Constituting Acquisition Borrowings. The obligations of the Revolving
Credit Lenders to make any Revolving Credit Loan that will constitute an
Acquisition Borrowing is subject to the further conditions precedent that,
in addition to the conditions specified in Section 7.03:
(a) In the case of a Permitted Acquisition for which the
purchase price (in cash, property, net assumption of liabilities for
Borrowed Money or otherwise) exceeds $3,500,000, not less than ten
Business Days prior to the Borrowing Date, the Lenders shall have
received calculations prepared by the Borrower indicating that on a
pro forma basis after giving effect to the proposed acquisition, (i)
all representations and warranties under this Agreement remain true in
all material respects, (ii) the Borrower will be in compliance with
all covenants in this Agreement, (iii) no Default or Event of Default
shall have occurred and (iv) the purchase price for the Permitted
Acquisition shall not exceed five times the pro forma EBITDA of the
entity to be acquired (or the assets of which are to be acquired),
calculated in the manner set forth in Exhibit B;
(b) In the case of a Permitted Acquisition for which the
purchase price (in cash, property, net assumption of liabilities for
Borrowed Money or otherwise) exceeds $3,500,000, not later than ten
Business Days prior to the Borrowing Date, the Lenders shall have
received historical financial statements of the entity to be acquired
(or the assets of which are to be acquired) prepared in accordance
with GAAP (or, if historical financial statements are not available,
such other documents (including, without limitation, tax returns) that
contain information similar to that which would be contained in
historical financial statements prepared in accordance with GAAP) and
pro forma combined financial statements of the Borrower showing the
pro forma effect of such Permitted Acquisition on the Borrower at the
end and for the fiscal period most recently ended;
(c) The aggregate principal amount of Revolving Credit Loans
drawn under the Acquisition Sublimit, after giving effect to the
requested Loan, in any 12-month period shall not have exceeded
$8,000,000;
(d) The purchase price for the acquisition (in cash, property,
net assumption of liabilities for Borrowed Money or otherwise) shall
not exceed, on a pro forma basis, five times the average EBITDA of the
entity to be acquired (or the assets of which are to be acquired),
during the two fiscal years of such entity most recently ended as of
the Borrowing Date;
(e) On or prior to the Borrowing Date, the Borrower shall have
delivered to the Administrative Agent such security agreements,
pledges and other documents and instruments as the Administrative
Agent may reasonably request, in form and substance reasonably
satisfactory to the Administrative Agent, evidencing the pledge by the
Borrower to the Administrative Agent on behalf of the Lenders of (A)
all of the shares of capital stock of, and the assets and property,
real and personal, tangible and intangible, of, the entity to be
acquired (if such acquisition be in the form of an acquisition of
capital stock) or (B) the assets and property, real and personal,
tangible and intangible, of the entity to be acquired (if such
acquisition be in the form of an acquisition of assets) as security
for the Loans, together with evidence reasonably satisfactory to the
Administrative Agent that all other action that the Administrative
Agent reasonably may deem necessary or desirable to perfect and
protect the security interests created by the security agreements,
pledges and other documents and instruments referred to in this clause
(v) has been taken; and
(f) The Administrative Agent shall have received a certificate,
dated the Borrowing Date, executed by the Chief Financial Officer,
Chief Accounting Officer, Treasurer or Controller of the Borrower with
respect to the items referred to in clauses (a), (b), (c) and (d) of
this Section 7.04.
ARTICLE VIII
COVENANTS
Section 8.01. Affirmative Covenants. So long as the Borrower
may borrow hereunder and until payment in full of the Notes and performance
of all other obligations of the Borrower hereunder, the Borrower will, and,
to the extent applicable, will cause each Subsidiary of the Borrower to:
(a) Financial Statements of Borrower. Furnish to the
Administrative Agent and each Lender (i) as soon as available, but in no
event more than 50 days after the end of each of its first three fiscal
quarters in each year, a balance sheet of the Borrower (consolidated and
consolidating) as of the end of such period, statements of operations of the
Borrower (consolidated and consolidating) from the beginning of the then
current fiscal year and from the beginning of such fiscal quarter to the end
of such period, and a statement of cash flows of the Borrower (consolidated)
from the beginning of the then current fiscal year to the end of such
period, certified by the Chief Financial Officer or Controller of the
Borrower; (ii) as soon as available, but in no event more than 95 days after
the end of its fiscal year, annual financial statements of the Borrower in
reasonable detail and satisfactory to the Administrative Agent and prepared
in accordance with GAAP, including a consolidated balance sheet as of the
end of such fiscal year and a consolidated statement of operations and
retained earnings and a consolidated statement of cash flows for such fiscal
year accompanied by a supplemental consolidating balance sheet as of the end
of such fiscal year and a supplemental consolidating statement of operations
for such fiscal year, together with an audit report of Deloitte & Touche,
LLP or other independent auditors reasonably satisfactory to the
Administrative Agent; (iii) together with (a) the financial statements
delivered pursuant to clause (i) above, a schedule providing calculations of
the Leverage Ratio as of the end of the relevant period and the Interest
Coverage Ratio, the Fixed Charge Coverage Ratio and Consolidated EBITDA of
the Borrower with respect to the preceding four fiscal quarters, and a
certificate executed by the Chief Financial Officer or Controller of the
Borrower stating whether any event has occurred which constitutes a Default
or Event of Default and, if so, stating the facts with respect thereto, and
(b) the financial statements delivered pursuant to clause (ii) above, a
schedule providing calculations of the Leverage Ratio as of the end of the
relevant fiscal year, Excess Cash Flow for the relevant fiscal year, and the
Interest Coverage Ratio, the Fixed Charge Coverage Ratio and Consolidated
EBITDA with respect to the preceding four fiscal quarters, and a letter from
or opinion of the auditors who prepared the annual financial statements
stating whether anything in their audit has revealed the occurrence of any
event which constitutes a Default or Event of Default and, if so, stating
the facts with respect thereto; (iv) as soon as available, but in no event
more than 30 days after the end of each month, consolidated balance sheets
and statements of income and expense and cash flows of the Borrower in
respect of such month, certified by the Chief Financial Officer or
Controller of the Borrower; (v) as soon as available, but in no event later
than (x) ten Business Days after the Borrowing Date for an Acquisition
Borrowing relating to a Permitted Acquisition for which the purchase price
(in cash, property, net assumption of liabilities for Borrowed Money or
otherwise) is less than or equal to $3,500,000 if such Permitted Acquisition
is financed, directly or indirectly, in whole or in part using the proceeds
of Loans or (y) ten Business Days after the date of a Permitted Acquisition
for which the purchase price is not financed, directly or indirectly, in
whole or in part using the proceeds of Loans, the information referred to in
Sections 7.04(a)(i), (ii) and (iii) and (b) with respect to such Permitted
Acquisition; (vi) at least annually, updated projected financial statements
for the Borrower through the final maturity of the Loans; and (vii) such
other information concerning the Borrower and its Affiliates as the
Administrative Agent, at the request of Lenders, reasonably may require.
(b) Financial Statements of Public Gas. Prior to the
consummation of the Public Gas Merger, furnish to the Administrative Agent
and each Lender: (i) as soon as available, but in no event more than 50
days after the end of each of its first three fiscal quarters in each year,
a balance sheet of Public Gas as of the end of such period, statements of
operations of Public Gas from the beginning of the then current fiscal year
and from the beginning of such fiscal quarter to the end of such period, and
a statement of cash flows from the beginning of the then current fiscal year
to the end of such period, certified by the Chief Financial Officer or
Controller of Public Gas; (ii) as soon as available, but in no event more
than 95 days after the end of its fiscal year, annual financial statements
of Public Gas in reasonable detail and satisfactory to the Administrative
Agent and prepared in accordance with GAAP, including a balance sheet as of
the end of such fiscal year and a statement of operations and retained
earnings and a statement of cash flows for such fiscal year, together with
an audit report of Deloitte & Touche, LLP or other independent auditors
reasonably satisfactory to the Administrative Agent; and (iii) as soon as
available, but in no event more than 30 days after the end of each month,
true and complete copies of consolidated balance sheets and statements of
income and expense and cash flows of Public Gas in respect of such month.
(c) Taxes. Pay and discharge, and cause each of its
Subsidiaries to pay and discharge, all taxes, assessments and governmental
charges upon it, its income and its properties prior to the date on which
penalties are attached thereto, unless and to the extent only that (i) (x)
such taxes, assessments and governmental charges shall be contested in good
faith and by appropriate proceedings by the Borrower (or a Subsidiary, as
the case may be) and (y) reserves which are adequate under GAAP are
maintained by the Borrower (or a Subsidiary, as the case may be) with
respect thereto or (ii) any failure to pay and discharge such taxes,
assessments and governmental charges could not, individually or in the
aggregate, have a Material Adverse Effect.
(d) Insurance. Maintain, for itself and its Subsidiaries,
insurance with responsible insurance companies against such risks, on such
properties and in such amounts as is customarily maintained by Persons
engaged in the same or similar businesses. The Borrower shall deliver to
the Administrative Agent upon its request a detailed list of the insurance
companies, the amounts and rates of the insurance, the dates of the
expiration thereof and the properties and risks covered thereby, and related
certificates of insurance.
(e) Notice of Litigation. Promptly after the commencement
thereof, provide notice of all actions, suits, and proceedings before any
court or governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, affecting the Borrower or any
Subsidiary of the Borrower which would, in the opinion of counsel to the
Borrower, if determined adversely to the Borrower, in any one case or in the
aggregate, likely have a Material Adverse Effect.
(f) Notice of Defaults and Events of Default. As soon as
possible and in any event within 5 Business Days after the occurrence of
each Default or Event of Default of which a senior officer of the Borrower
knows or should have known, furnish to the Lenders a written notice setting
forth the details of such Default or Event of Default and the action which
is proposed to be taken by the Borrower with respect thereto.
(g) Maintenance of Records. Keep, and cause each of its
Subsidiaries to keep, proper books of record and account in which full, true
and correct entries are made of all dealings or transactions of or in
relation to its business and affairs in accordance with GAAP.
(h) Inspection. Permit, and cause each of its Subsidiaries to
permit, the Administrative Agent and the Lenders to have one or more of
their officers and employees, or any other Person designated by the
Administrative Agent or the Lenders, upon reasonable prior notice to visit
and inspect any of the properties of the Borrower or any of its Subsidiaries
and to examine the minute books, books of account and other records of the
Borrower or any of its Subsidiaries and make copies thereof or extracts
therefrom, and discuss its affairs, finances and accounts with its officers
and, at the request of the Lenders, with the Borrower's independent
accountants, during normal business hours and at such other reasonable times
and as often as the Lenders may reasonably desire.
(i) Maintenance of Property, Etc. The Borrower shall
maintain, keep and preserve, and shall cause each of its Subsidiaries to
maintain, keep and preserve, all of its properties in good repair, working
order and condition, except where the failure so to do, individually or in
the aggregate, could not reasonably be expected to have a Material Adverse
Effect.
(j) Notice of ERISA Events. Within a reasonable time after
the Borrower knows that any of the events described in the following
sentence have occurred with respect to the Borrower or any of its
Subsidiaries, the Borrower shall furnish to the Lenders a statement signed
by a senior officer of the Borrower describing such event in reasonable
detail and the action, if any, proposed to be taken with respect thereto.
The events referred to in the preceding sentence are, with respect to any
Plan: (i) any reportable event described in Section 4043 of ERISA, other
than a reportable event for which the 30-day notice requirement has been
waived by the PBGC; (ii) the filing with any affected party of a notice of
intent to terminate a Plan; (iii) the adoption of an amendment to a Plan if,
after giving effect to such amendment, the Plan is a plan described in
Section 4021(b)(i) of ERISA; (iv) receipt of notice of an application by the
PBGC to institute proceedings to terminate a Plan pursuant to Section 4042
of ERISA; (v) withdrawal from or termination of a Plan during a plan year
for which the Borrower or any of its Subsidiaries is or could be subject to
material liability under Sections 4063 or 4064 of ERISA; and (vi) receipt of
notice of withdrawal liability pursuant to Section 4202 of ERISA; if the
aggregate current value of the benefits which are guaranteed under Title IV
of ERISA (determined on the basis of assumptions prescribed by the PBGC) for
all such affected Plans exceeds the then current value of the assets
allocable to such benefits, by more than $1,000,000.
(k) Environmental Matters. (i) Comply, and cause each of its
Subsidiaries to comply with all applicable Environmental Laws, except where
the failure so to comply, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect, (ii) notify the
Administrative Agent promptly after becoming aware thereof of any material
release, Adverse Environmental Condition or Environmental Claim in
connection with the Borrower's or any of its Subsidiaries' facilities, and
(iii) promptly forward to the Administrative Agent a copy of any order,
notice, permit, application, or any other communication or report received
by the Borrower or any of its Subsidiaries in connection with any such
matters as they may affect such premises, and the response or planned
response thereto of the Borrower or any of its Subsidiaries.
(l) Interest Rate Agreements. Within six months after the
Closing Date, enter into Interest Rate Agreements hedging the interest on
50% of the outstanding Term Loans to a fixed rate on terms and documentation
reasonably satisfactory to the Administrative Agent.
(m) Cash Concentration Accounts. (i) Within six months from
the Effective Date, establish a cash concentration account with the
Administrative Agent (or another bank reasonably satisfactory to the
Required Lenders) into which payments by the customers of the Borrower and
its Subsidiaries (other than NPC Leasing Corp.) will be deposited by means
of a sweep system to be established by the Borrower and its Subsidiaries
(other than NPC Leasing Corp.) and reasonably acceptable to the
Administrative Agent; and
(ii) Not later than 30 days after the Effective Date, deliver
to the Lenders a complete and accurate list of all deposit accounts
maintained by the Borrower or its Subsidiaries; and cause each depositary
institution at which such an account is maintained to execute and deliver to
the Administrative Agent a bank acknowledgement or similar instrument, in
form and substance satisfactory to the Administrative Agent, acknowledging
and giving effect to the security interest in and Lien upon such account
granted to the Administrative Agent, as agent hereunder and under the
Security Documents.
(n) Mortgages. Upon the request of the Administrative Agent,
as promptly as practicable duly execute and deliver to the Administrative
Agent Mortgages in respect of the real property of the Borrower identified
by the Administrative Agent, together with certificates of title insurance
(showing clear title with no Liens prior to the Liens created by the
Mortgage, other than Liens permitted by Section 8.02(a)) and other evidence
reasonably satisfactory to the Administrative Agent that all other action
that the Administrative Agent may deem necessary or desirable to perfect and
protect the security interests created by the Mortgages has been taken.
(o) New Subsidiaries. After (i) any Person shall become a
Subsidiary of the Borrower or (ii) any Subsidiary of the Borrower shall
acquire material assets or properties, the Borrower shall promptly notify
the Administrative Agent thereof and shall cause such Person to deliver to
the Administrative Agent (x) a duly executed security agreement,
substantially in the form of the Security Agreement, mutatis mutandis,
together with the related items described in Section 7.01(k), and (y) a list
of all its deposit accounts.
(p) Trademarks. Not later than 30 days after the Effective
Date, file or caused to be filed, with the Patent and Trademark Office
applications for the registration of all valuable and registrable
trademarks, service marks and trade names used or to be used in the
Borrower's business; and as promptly as practicable, deliver to the
Administrative Agent a duly executed Trademark Security Agreement, between
the Borrower and the Administrative Agent, as agent for the Lenders,
together with evidence reasonably satisfactory to the Administrative Agent
that all other action that the Administrative Agent may deem necessary or
desirable to perfect and protect the security interests created by the
Trademark Security Agreement has been taken.
(q) Public Gas Management Agreement. If the Public Gas Merger
shall not theretofore have occurred, not later than November 15, 1994, enter
into a management agreement, substantially in the form of Exhibit Q, with
Public Gas (as such agreement may thereafter be amended from time to time,
the "Public Gas Management Agreement") and deliver true and complete copies
thereof to the Administrative Agent for distribution to the Lenders.
Section 8.02. Negative Covenants. So long as the Borrower may
borrow hereunder and until payment in full of the Notes and performance of
all other obligations of the Borrower hereunder, the Borrower will not:
(a) No Liens. Create, incur, assume or suffer to exist, or
permit any of its Subsidiaries to create, incur, assume or suffer to exist,
any Lien upon or in any of its or any of its Subsidiaries' property or
assets, whether now owned or hereafter acquired; or enter into or suffer to
exist any agreement or other instrument binding on the Borrower or any of
its Subsidiaries or affecting any of its or their respective properties
which prohibits, requires the consent of any Person for, or otherwise
restricts the creation of any Lien in favor of the Lenders in each case
other than:
(i) Liens in favor of the Lenders hereunder and under the
Security Documents and other Liens existing on the date of this
Agreement and identified on Schedule 7;
(ii) During the 30 Business Days immediately following the
Closing Date, certain Liens, existing on the date of this Agreement,
on tangible assets of the Borrower that do not substantially impair
the security in the Borrower's assets intended to be provided by the
Security Documents, but which may not be identified on Schedule 7;
(iii) Liens for taxes, statutory Liens of landlords and Liens of
carriers, warehousemen, mechanics and materialmen, in each case only
to the extent the obligations thereto are not yet due or are being
contested in good faith by appropriate proceedings diligently pursued,
Liens to secure the performance of tenders, bids, statutory
obligations or government contracts, and similar Liens not securing
Borrowed Money and arising in the ordinary course of business;
provided that the aggregate dollar amount of obligations secured by
all such Liens (other than Liens for taxes not yet due) does not
exceed $1,500,000;
(iv) any Lien on any asset securing Borrowed Money, in an amount
not exceeding the Fair Market Value of such asset, incurred or assumed
for the sole purpose of financing all or any part of the cost of
acquiring such asset, provided that such Lien attaches to such asset
concurrently with or within 90 days after the acquisition thereof and,
provided further that, with respect to the acquisition of a Person or
a substantial part of a Person's business or assets, the obligee with
respect to such Borrowed Money shall not be such Person or the seller
of such Person or assets or an Affiliate of such seller;
(v) any Lien on any asset of any corporation existing at the
time such corporation is merged into or consolidated with the Borrower
or a Subsidiary of the Borrower, provided that such Lien (A) does not
encumber any other asset and (B) is not created in contemplation of
such Permitted Acquisition;
(vi) any Lien existing on any asset prior to the acquisition
thereof by the Borrower or a Subsidiary of the Borrower that (A) does
not encumber any asset other than such acquired asset and (B) is not
created in contemplation of such acquisition;
(vii) any Lien arising out of the refinancing, extension, renewal
or refunding of Borrowed Money secured by any Lien permitted by clause
(iii) or (iv) of this Section, provided that (A) the incurrence of
such Borrowed Money is permitted by Section 8.02(f), (B) the
outstanding amount of such Borrowed Money is not increased in
connection with or in anticipation of such refinancing, extension,
renewal or refunding (except to the extent of reasonable and customary
transaction costs actually incurred in connection therewith) and (C)
such Borrowed Money is not, as a consequence of such transaction,
secured by any additional assets; and
(viii) any Lien securing obligations of the Borrower to any Lender
or Affiliate of a Lender under an Interest Rate Agreement owing to a
Lender.
(b) Merger, Acquisition or Sales. Enter into any merger or
consolidation or purchase, lease or otherwise acquire assets of any Person
or sell, lease, or otherwise dispose of any of its assets (except in the
ordinary course of business), or permit any of its Subsidiaries to do any of
the foregoing, except (i) the Public Gas Merger (provided that the
outstanding SEPSCO 11 7/8% bonds are irrevocably called for redemption,
repaid in full, or an amount sufficient to pay such bonds in full shall have
been deposited with the trustee for such bonds, in accordance with the terms
thereof), (ii) Permitted Acquisitions and (iii) any Asset Sale; provided
that with respect to any such Asset Sale:
(A) the Borrower shall comply with Section 3.07(b)(ii);
(B) at least 75% of the proceeds of such Asset Sale are
received in the form of cash or cash equivalents;
(C) the Borrower or a Subsidiary shall receive consideration at
the time of such Asset Sale at least equal in value to the Fair Market
Value of the assets sold, leased or otherwise disposed of (as
determined by the Board of Directors of the Borrower, as the case may
be); and
(D) the Fair Market Value of the assets sold, leased or
otherwise disposed of in one transaction or series of related
transactions shall not exceed $25,000,000; and
provided further that a Wholly Owned Subsidiary of the Borrower may merge
with or into or consolidate with any other Wholly Owned Subsidiary or may
merge with or into or consolidate with the Borrower.
(c) Contingent Liabilities. Assume, guarantee, endorse,
contingently agree to purchase or otherwise become liable upon, or permit
any of its Subsidiaries to assume, guarantee, endorse, contingently agree to
purchase or otherwise become liable upon, the obligation of any Person (all
such transactions herein being referred to as "Contingent Liabilities"),
except by the endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business and
except to the extent that such Contingent Liabilities would be permitted as
Borrowed Money under Section 8.02(f).
(d) Limitation on Capital Expenditures. Make, or permit any
of its Subsidiaries to make, Consolidated Capital Expenditures in an
aggregate amount (with respect to the Borrower and all of its Subsidiaries
taken together) greater than $10,000,000 in any one fiscal year (excluding
any amounts expended in such fiscal year in respect of Permitted
Acquisitions).
(e) Restricted Payments. Make, or permit any of its
Subsidiaries to make, any Restricted Payment; provided, however, that:
(i) at any time when the Borrower, after giving effect to such
Restricted Payment, is Solvent the Borrower may make a Restricted
Payment (A) of up to $45,000,000, payable in one or more installments
on or after the date of the Tranche A and Tranche B Term Loans, (B) of
up to $30,000,000 immediately following the funding of the Tranche C
Term Loan, (C) prior to the Public Gas Merger but after entry into the
Public Gas Management Agreement, of working capital advances not to
exceed $1,300,000 in the aggregate to Public Gas evidenced by or
pursuant to documentation approved by the Required Lenders (provided
that such advances are evidenced by negotiable promissory notes, in
form and substance satisfactory to the Administrative Agent (the
"Public Gas Promissory Notes") duly pledged to the Administrative
Agent as collateral under the Security Agreement) and (D) to the
Guarantor to reimburse the Guarantor for advances to the Borrower
prior to the Closing Date in an aggregate amount up to $2,345,000
related to the purchase prices paid in connection with certain
acquisition agreements and letters of intent to acquire assets entered
into prior to the Closing Date; and
(ii) so long as no payment or financial covenant Default or Event
of Default shall have occurred and be continuing, the Borrower may pay
management fees in respect of periods subsequent to the Closing Date
to the Guarantor in the ordinary course of business pursuant to the
Borrower Management Agreement. Management fees not paid may be
accrued until any such Default or Event of Default has been cured.
(b) Indebtedness. Incur or suffer to exist, or permit any
of its Subsidiaries to incur or suffer to exist, any Borrowed Money except
(i) Loans, (ii) existing indebtedness listed on Schedule 8 (other than
Capital Lease Obligations, if any, listed therein), (iii) purchase money
indebtedness in an aggregate amount for the Borrower and its Subsidiaries
not to exceed $5,000,000 at any one time, (iv) Capital Lease Obligations
(including Capital Lease Obligations listed in Schedule 8) not to exceed
$15,000,000 at any one time and (v) indebtedness assumed or unsecured
indebtedness issued in connection with Permitted Acquisitions.
(g) Investments. (i) Make, or permit any of its Subsidiaries
to make, any loan or advance to any Person; or purchase or otherwise
acquire, or permit any of its Subsidiaries to purchase or otherwise acquire,
any capital stock, warrants, rights, options, obligations or other
securities of, make any capital contribution to, or otherwise invest in, any
Person (each, an "Investment"), except (A) Permitted Investments, (B)
Restricted Payments that are permitted under Section 8.02(e), (C) Permitted
Acquisitions and (D) other Investments in the ordinary and usual course of
business, in an aggregate amount not exceeding $500,000 at any one time.
i) Make, or permit any of its Subsidiaries to make, any
investment in financial derivatives for the purpose of speculation, other
than Interest Rate Agreements referred to in Section 8.01(l).
(h) Affiliate Transactions. Engage, or permit any Subsidiary
of the Borrower to engage, in any transactions or series of related
transactions (including, without limitation, the sale, purchase, exchange or
lease of assets, or services) with the Guarantor or any Affiliate of the
Guarantor or the Borrower (other than a Wholly Owned Subsidiary of the
Borrower) unless (i) such transaction or series of transactions is on terms
that are no less favorable to the Borrower or such Subsidiary, as the case
may be, than would be available in a comparable transaction in arm's-length
dealings with an unrelated third party and (ii) with respect to any one
transaction or series of related transactions involving payments, or
transfers of assets or property having a fair value, in excess of $1,000,000
in the aggregate, the Borrower delivers an officers' certificate to the
Administrative Agent certifying that such transaction complies with clause
(i) above and such transaction or series of transactions is approved by a
majority of the members of the Board of Directors of the Borrower; provided
that this Section 8.02(h) shall not apply to any such transaction that is
permitted by express language to that effect (and not by implication) in
Sections 8.02(b), (c), (e) or (g).
(i) Certain Agreements and Instruments. Amend, modify or
waive, or permit to be amended, modified or waived, in any manner adverse to
the interests of the Lenders, any provision of the Tax Sharing Agreement,
the Borrower Management Agreement, the Public Gas Management Agreement, the
Public Gas Promissory Notes (after the date thereof) or the Promissory Note,
dated as of October 1, 1994, from the Guarantor to the Borrower unless,
within not less than 15 days prior to such amendment, modification or
waiver, the Borrower shall have given the Administrative Agent notice
thereof, including all relevant terms and conditions thereof, and the
Required Lenders shall have consented in writing thereto (such consent not
to be unreasonably withheld).
(j) Use of Proceeds. Use the proceeds of each Loan (i) for any
purpose other than the applicable purposes described in Section 4.06 and
(ii) in any manner involving a violation of any applicable law or
regulation, including without limitation Regulations G, T, U and X of the
Board of Governors of the Federal Reserve System.
(k) Deposit Accounts. Except with the prior written consent of
the Administrative Agent (which consent shall not be unreasonably withheld),
close any deposit account listed in the Schedule referred to in Section
8.01(m)(ii) or (except as permitted by Section 8.01(m)(i)) open any deposit
account not listed on such Schedule; provided that the Borrower may open
deposit accounts in connection with a Permitted Acquisition so long as
within 30 days thereof, the applicable depository institution shall execute
and deliver to the Administrative Agent a bank acknowledgment or similar
instrument, in form and substance satisfactory to the Administrative Agent,
acknowledging and giving effect to the security interest in and Lien upon
such account granted to the Administrative Agent as agent hereunder and
under the Security Documents.
Section 8.03. Financial Covenants. As long as any of the
Loans or other payment obligations of the Borrower under the Credit
Documents shall remain unpaid or any Lender shall have a Commitment, the
Borrower covenants that:
(a) Minimum Interest Coverage Ratio. The Interest Coverage
Ratio shall not be less than:
Period Ratio
------ -----
From the Closing Date through
December 30, 1997 2.60x
From December 31, 1997 through
December 30, 1997 2.85x
From December 31, 1998 through
December 30, 1999 3.00x
From December 31, 1999 through
December 30, 2000 3.25x
From December 31, 2000 and
thereafter 3.50x
(b) Maximum Leverage Ratio. The Leverage Ratio shall not
exceed at any time:
Period Ratio
------ -----
From the Closing Date through
December 30, 1995 4.50x
From December 31, 1995 through
December 30, 1996 4.25x
From December 31, 1996 through
December 30, 1997 4.20x
From December 31, 1997 through
December 30, 1998 3.80x
From December 31, 1998 through
December 30, 1999 3.50x
From December 31, 1999 through
December 30, 2000 3.25x
From December 31, 2000 through
December 30, 2001 3.00x
From December 31, 2001 through
December 30, 2002 2.50x
From December 31, 2002 and
thereafter 2.00x
(c) Minimum Fixed Charge Coverage Ratio. The Fixed Charge
Coverage Ratio shall not be less than 1.10:1.00 at any time.
(d) Minimum Consolidated EBITDA. At all times until consum-
mation of the Public Gas Merger, the minimum Consolidated EBITDA for the
four most recently completed fiscal quarters of the Borrower shall be at
least $21,000,000 and thereafter shall be at least $27,700,000.
ARTICLE IX
EVENTS OF DEFAULT; SECURITY
Section 9.01. Events of Default. If one or more of the
following events (each, an "Event of Default") shall occur:
(a) Default shall be made in the payment of (i) any
installment of principal of any Loan when due and payable,
whether at maturity, by notice of intention to prepay or
otherwise; or (ii) interest upon any Loan or of any other
amounts due hereunder and such default described in this clause
(ii) shall continue for a period of five days; or
(b) Default shall be made in the due observance or
performance of any term, covenant, or agreement contained in
Section 8.02 or 8.03; or
(c) Default shall be made in the due observance or
performance of any other term, covenant or agreement contained
in any Credit Document, and such default shall have continued
unremedied for a period of 30 days after the Borrower becomes
aware of such default; or
(d) Any representation or warranty made in any Credit
Document or any statement or representation made in any
certificate, report or opinion delivered by or on behalf of the
Borrower, the Guarantor or any of their Subsidiaries in connec-
tion herewith shall prove to have been false or misleading in
any material respect when made; or
(e) Any obligation of the Borrower or any Subsidiary of
the Borrower for the payment of indebtedness for Borrowed Money
in the amount of $5,000,000 or more is not paid when due (after
giving effect to any applicable grace period) or becomes or is
declared to be due and payable prior to the expressed maturity
thereof, or there shall have occurred an event which, with the
giving of notice or lapse of time, or both, would cause any such
obligation to become, or allow any such obligation to be
declared to be, due and payable; or
(f) Any Liens created by any of the Security Documents
shall at any time not constitute a valid and perfected Lien on
the collateral described therein subject to no equal or prior
Lien (other than a Lien permitted by Section 8.02(a)(i) -
(vii)), or any of the Security Documents shall at any time cease
to be in full force and effect (other than in accordance with
the terms hereof or thereof or as a direct consequence of an
affirmative action of the Lenders) or the Guarantor, the
Borrower or any Affiliate thereof shall so assert in writing;
the Guarantor shall default in the performance of any covenant
contained in the Guarantee; or the Guaranty shall for any reason
cease to be, or be asserted in writing by the Guarantor or the
Borrower not to be, in full force and effect and enforceable in
accordance with its terms; or
(g) One or more final judgments against the Borrower or
any Subsidiary of the Borrower or attachments against its
property, (i) which in the aggregate exceed $5,000,000 or (ii)
the operation or result of which would be to interfere materi-
ally and adversely with the conduct of the business of the
Borrower, or any Subsidiary of the Borrower, and which remain
unpaid, unstayed on appeal, undischarged, unbonded, or
undismissed for a period of 30 days; or
(h) Any reportable event described in Section 4043 of
ERISA with respect to a Plan, other than a reportable event for
which the 30-day notice requirement has been waived by the PBGC;
the filing with any affected party of a notice of intent to
terminate a Plan (other than a termination under Section 4041(b)
of ERISA); the adoption of an amendment to a Plan if, after
giving effect to such amendment, the Plan is a plan described in
Section 4021(b) of ERISA; or receipt of notice of an application
by the PBGC to institute proceedings to terminate a Plan
pursuant to Section 4042 of ERISA; in each case, with respect
only to those Plans under which the current value of the bene-
fits which are guaranteed under title IV of ERISA (determined on
the basis of assumptions prescribed by the PBGC) exceeds the
then current value of the assets allocable to such benefits by
more than $1,000,000; or
(i) An involuntary case or other proceeding shall be
commenced against the Guarantor, the Borrower or any Subsidiary
of the Borrower seeking liquidation, reorganization or other
relief with respect to it or its debts under any applicable
Federal or State bankruptcy, insolvency, reorganization or
similar law now or hereafter in effect or seeking the
appointment of a custodian, receiver, liquidator, assignee,
trustee, sequestrator or similar official of it or any substan-
tial part of its property, and such involuntary case or other
proceeding shall remain undismissed and unstayed, or an order or
decree approving or offering any of the foregoing shall be
entered and continued unstayed and in effect, in any such event,
for a period of 60 days; or
(j) The commencement by the Guarantor, the Borrower or
any Subsidiary of the Borrower of a voluntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the
consent by any of them to the entry of a decree or order for
relief in respect of the Guarantor, the Borrower or any such
Subsidiary in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or to the commencement of
any bankruptcy or insolvency case or proceeding against any of
them, or the filing by any of them of a petition or answer or
consent seeking reorganization or relief under any applicable
Federal or State law, or the consent by any of them to the
filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or similar official of the Guarantor, the
Borrower or any such Subsidiary or any substantial part of their
respective property, or the making by any of them of an
assignment for the benefit of creditors, or the admission by any
of them in writing of inability to pay their debts generally as
they become due, or the taking of corporate action by the
Guarantor, the Borrower or any such Subsidiary in furtherance of
any such action; or
(k) Ronald D. Paliughi shall cease to be the president
of the Borrower and a successor shall not be appointed within 12
months thereafter with the prior consent of the Required Lenders
(such consent not to be unreasonably withheld or delayed);
then (i) upon the happening of any of the foregoing Events of Default, the
obligation of the Lenders to make any further Loans under this Agreement or
of the Administrative Agent to issue Letters of Credit shall terminate upon
declaration to that effect delivered by the Administrative Agent to the
Borrower and (ii) upon the happening of any of the foregoing Events of
Default which shall be continuing, the Notes shall become and be immediately
and automatically due and payable upon declaration to that effect delivered
by the Administrative Agent to the Borrower; provided, that upon the
happening of any event specified in Section 9.01(i) or (j), the Notes shall
become immediately and automatically due and payable and the obligation of
the Lenders to make any further Loans hereunder and of the Administrative
Agent to issue Letters of Credit shall terminate without declaration or
other notice to the Borrower. In addition to the remedies set forth above,
the Administrative Agent may exercise any other remedies provided for by
this Agreement in accordance with the terms hereof or any other remedies
provided by applicable law. The Borrower expressly waives any presentment,
demand, protest or other notice of any kind.
ARTICLE X
THE ADMINISTRATIVE AGENT AND THE LENDERS
Section 10.01. Appointment, Powers and Immunities. (a) Each
Lender hereby irrevocably appoints and authorizes the Administrative Agent
to act as its agent hereunder and under the Security Documents with such
powers as are specifically delegated to it by the terms of the Credit Docu-
ments, together with such other powers as are reasonably incidental thereto,
including without limitation the execution and delivery by the
Administrative Agent on behalf of such Lender of the Security Documents and
the exercise by the Administrative Agent of the powers delegated to the
Administrative Agent thereby and the Administrative Agent hereby accepts
such appointment subject to the terms hereof. Exercise by the
Administrative Agent of powers granted to it as agent under any of the
Credit Documents shall for all purposes of this Agreement (including
Sections 10.02, 10.06, 10.07 and 12.03) be deemed acts by the Administrative
Agent in its capacity as such. The relationship between the Administrative
Agent and the Lenders shall be that of agent and principal only and nothing
herein shall be construed to constitute the Administrative Agent a trustee
or fiduciary for, or partner of, any Lender nor to impose on the
Administrative Agent duties or obligations other than those expressly
provided for herein. The Administrative Agent and each Co-Agent: (i) shall
not be responsible to any of the Lenders for any recitals, statements,
representations or warranties contained in this Agreement, the Security
Agreement or in any other Credit Document, or in any certificate or other
document referred to or provided for in, or received by any of the Lenders
under or in connection with, this Agreement or the other Credit Documents,
or for the value, validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement, or the other Credit Documents or any other
document referred to or provided for herein or for any failure by the
Borrower or any other Person to perform any of its obligations hereunder or
thereunder; (ii) shall not be required to initiate or conduct any litigation
or collection proceedings hereunder except to the extent requested by the
Required Lenders; and (iii) shall not be responsible for any action taken or
omitted to be taken by it hereunder or under any other document or instru-
ment referred to or provided for herein or in connection herewith except for
its own gross negligence or willful misconduct. The Administrative Agent
may employ agents and attorneys-in-fact and shall not be responsible for the
negligence or misconduct of any such agents or attorneys-in-fact selected by
it.
(b) In their capacities as Co-Agents, the Co-Agents shall have
no authority to act on behalf of the Borrower or any Lender and shall be
under no obligation or liability for any action or inaction in such capacity
under or in connection with the Credit Documents.
Section 10.02. The Administrative Agent's Liabilities. Each of
the Lenders and the Borrower agrees that (i) neither the Administrative
Agent nor the Co-Agents in such capacity nor any of their officers or
employees shall be liable for any action taken or omitted to be taken by any
of them hereunder except for their own gross negligence or willful
misconduct, (ii) neither the Administrative Agent nor the Co-Agents in such
capacity nor any of their officers or employees shall be liable for any
action taken or omitted to be taken by any of them in good faith in reliance
upon the advice of counsel, independent public accountants or other experts
selected by the Administrative Agent and (iii) subject to Sections 2.08(g)
(iv) and (v) with respect to Letters of Credit, the Administrative Agent in
such capacity shall be entitled to rely upon any notice, consent,
certificate, statement or other document (including any telegram, cable,
telex, facsimile or telephone transmission) believed by it to be genuine and
correct and to have been signed and/or sent by the proper Persons.
Section 10.03. Defaults and Events of Default. Each of the
Administrative Agent and the Co-Agents shall not be deemed to have knowledge
of the occurrence of a Default or Event of Default (other than the
non-payment of principal of or interest on Loans) unless it shall have
received notice from a Lender or the Borrower specifying such Default or
Event of Default and stating that such notice is a "Notice of Default". In
the event that the Administrative Agent receives such a notice of the
occurrence of a Default or Event of Default, the Administrative Agent shall
give prompt notice thereof to the Lenders (and shall give each Lender prompt
notice of each such non-payment). The Administrative Agent shall (subject
to Section 10.07 hereof) take such action with respect to such Default or
Event of Default as shall be reasonably directed by the Required Lenders;
provided that, unless and until the Administrative Agent shall have received
such directions, the Administrative Agent may take such action, or refrain
from taking such action, with respect to such Default and Event of Default
as the Administrative Agent shall deem advisable in the best interest of the
Lenders.
Section 10.04. Rights as a Lender. With respect to its
Commitment and the Loans made by it, each of The Bank of New York, The First
National Bank of Boston and Internationale Nederlanden (U.S.) Capital
Corporation, in its capacity as a Lender hereunder, shall have the same
rights and powers hereunder as any other Lender and may exercise the same as
though it was not acting as the Administrative Agent, and the term "Lender"
or "Lenders" shall, unless the context otherwise indicates, include the
Administrative Agent in its individual capacity. The Administrative Agent
and Co-Agents may (without having to account therefor to any Lender) accept
deposits from, lend money to and generally engage in any kind of banking,
trust or other business with the Borrower and any Affiliates of the Borrower
as if it were not acting as the Administrative Agent or a Co-Agent, and the
Administrative Agent and Co-Agents may accept fees and other consideration
from the Borrower for services in connection with this Agreement or
otherwise without having to account for the same to the Lenders.
Section 10.05. Lender Credit Decision. Neither the
Administrative Agent, any Co-Agent nor any of their officers or employees
have any responsibility for, give any guaranty in respect of, nor make any
representation to the Lenders as to, (i) the condition, financial or
otherwise, of the Borrower or any Subsidiary thereof or the truth of any
representation or warranty given or made herein or in any other Credit
Document, or in connection herewith or therewith or (ii) the validity,
execution, sufficiency, effectiveness, construction, adequacy, enforceabil-
ity or value of this Agreement or any other Credit Document or any other
document or instrument related hereto or thereto. The Administrative Agent
and the Co-Agents 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 to the operations, business, property, condition or
creditworthiness of the Borrower or any of its Subsidiaries, whether such
information comes into possession on or before the date hereof or at any
time thereafter. Each Lender acknowledges that it has, independently and
without reliance upon the Administrative Agent, the Co-Agents or any other
Lender, based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender also acknowledges that it will independently and
without reliance upon the Administrative Agent, the Co-Agents or any other
Lender, based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not
taking action under this Agreement or any other Credit Document.
Section 10.06. Indemnification. Each Lender agrees (which
agreement shall survive payment of the Loans and the Notes) to indemnify the
Administrative Agent, to the extent not reimbursed by the Borrower or the
Guarantor, ratably in accordance with their respective Loans (as of the time
of the incurrence of the liability being indemnified against), or if no
Loans are outstanding, their respective Commitments, from and against any
and all liabilities, obligations, losses, claims, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever which may be imposed on, incurred by, or asserted against
the Administrative Agent in any way relating to or arising out of this
Agreement or any other Credit Document, or any action taken or omitted to be
taken by the Administrative Agent hereunder or thereunder; provided that no
Lender shall be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the gross negligence or willful misconduct of
the Administrative Agent or any of its officers or employees. Without
limitation of the foregoing, each Lender agrees to reimburse the
Administrative Agent promptly upon demand for its ratable share of any
out-of-pocket expenses (including counsel fees) incurred by the
Administrative Agent in such capacity in connection with the preparation,
execution or enforcement of, or legal advice in respect of rights or
responsibilities under, this Agreement or any other Credit Document or any
amendments or supplements hereto or thereto, to the extent that the
Administrative Agent is not reimbursed for such expenses by or on behalf of
the Borrower.
Section 10.07. Failure to Act. Except for action expressly
required of the Administrative Agent hereunder or under any other Credit
Document, the Administrative Agent shall in all cases be fully justified in
failing or refusing to act hereunder or thereunder unless it shall be
indemnified to its satisfaction by the Lenders against any and all liability
and expense which may be incurred by it by reason of taking or continuing to
take any such action.
Section 10.08. Resignation or Removal of Administrative Agent.
Subject to the appointment and acceptance of a successor to the
Administrative Agent as provided below, the Administrative Agent may resign
at any time by giving five days prior written notice thereof to the Lenders
and the Borrower. Upon any such resignation, the Required Lenders shall
have the right to appoint a successor Administrative Agent reasonably
acceptable to the Borrower. If no successor Administrative Agent reasonably
acceptable to the Borrower shall have been so appointed by the Required
Lenders and shall have accepted such appointment within 30 days after a
retiring Administrative Agent's giving of notice of resignation, then the
retiring Administrative Agent may, on behalf of the Lenders, appoint a
successor Administrative Agent reasonably acceptable to the Borrower, which
shall either be a Lender or be a bank organized under the laws of the United
States of America or any State having an office (or an affiliate with an
office) in New York, New York, and a combined capital and surplus of at
least $100,000,000. Upon the acceptance of any appointment as an
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 hereunder. After a retiring Administrative
Agent's resignation hereunder as Administrative Agent, the provisions of
this Article X shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as an
Administrative Agent.
Section 10.09. Agent Fee. Commencing on the Effective Date and
continuing so long as the Commitments are outstanding and until payment in
full of all Loans hereunder, the Borrower will pay to the Administrative
Agent for its own account an agency fee, payable as separately agreed, such
fee to be in an amount previously agreed between the Borrower and the
Administrative Agent. Any such fee, once paid, shall be nonrefundable.
ARTICLE XI
CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
Section 11.01. Consent to Jurisdiction. The Borrower hereby
irrevocably submits to the non-exclusive jurisdiction of any state or
federal court in New York City for the purpose of any suit, action,
proceeding or judgment relating to or arising out of this Agreement and each
other Credit Document. The Borrower hereby appoints the Guarantor, with
offices on the date hereof at 900 Third Avenue, New York, New York, as its
authorized agent on whom process may be served in any action which may be
instituted against it by the Administrative Agent or the Lenders in any
state or federal court in New York City, arising out of or relating to any
Loan or this Agreement and each other Credit Document. Service of process
upon such authorized agent and written notice of such service to the
Borrower shall be deemed in every respect effective service of process upon
the Borrower, and the Borrower hereby irrevocably consents to the
jurisdiction of any such court in any such action and to the laying of venue
in New York City. The Borrower hereby irrevocably waives any objection to
the laying of the venue of any such suit, action or proceeding brought in
the aforesaid courts and hereby irrevocably waives any claim that any such
suit, action or proceeding brought in any such court has been brought in an
inconvenient forum. Notwithstanding the foregoing, nothing herein shall in
any way affect the right of the Administrative Agent or any Lender to bring
any action arising out of or relating to the Loans or this Agreement and
each other Credit Document in any competent court elsewhere having
jurisdiction over the Borrower or its property.
Section 11.02. WAIVER OF JURY TRIAL. EACH OF THE PARTIES TO
THIS AGREEMENT AND EACH HOLDER OF A NOTE HEREBY IRREVOCABLY
WAIVES ALL RIGHT
TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF
OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
ARTICLE XII
MISCELLANEOUS
Section 12.01. APPLICABLE LAW. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW
YORK, UNITED STATES OF AMERICA.
Section 12.02. Set-off. As security for its obligations
hereunder or in connection herewith and for any and all other liabilities,
direct or indirect, absolute or contingent, due or to become due, now or
hereafter arising, of the Borrower to such Lender hereunder or in connection
herewith, and regardless of the adequacy of any collateral, the Borrower
hereby grants to each Lender a security interest in, lien upon, and right of
set-off against any deposits or other amounts standing to the credit of or
due to the Borrower on the books of such Lender in any deposit or other
account maintained with any branch of such Lender or otherwise and any
securities or other property of the Borrower in the possession of such
Lender.
Section 12.03. Expenses; Indemnification. (a) The Borrower
agrees to pay (i) all out-of-pocket expenses of the Administrative Agent
(including the reasonable fees and expenses of Sullivan & Cromwell, as
counsel to the Administrative Agent) in connection with the preparation,
negotiation and syndication of this Agreement and the other Credit Documents
and any amendments or supplements hereto or thereto or waivers or consents
relating hereto or thereto and (ii) all out-of-pocket expenses incurred by
the Administrative Agent and any Lender, including reasonable fees and
disbursements of counsel for the Lenders and other professional fees, in
connection with a Default or Event of Default, the enforcement of the Credit
Documents and collection and other proceedings resulting therefrom. The
Borrower shall indemnify each Lender against any transfer taxes, documentary
taxes, or similar assessments or charges made by any Governmental Authority
by reason of the execution and delivery of this Agreement or the other
Credit Documents.
(b) The Borrower agrees to indemnify the Administrative Agent
(including in its capacity as agent under the Security Documents), the Co-
Agents and each of the Lenders and their respective directors, officers,
affiliates, employees, agents and controlling persons (each such Person
being called an "Indemnitee") against, and to hold each Indemnitee harmless
from, any and all losses, claims, damages, liabilities and related expenses,
including reasonable counsel fees and expenses, incurred by or asserted
against any Indemnitee arising out of, in any way connected with, or as a
result of (i) the execution or delivery of this Agreement or any other
Credit Document or any agreement or instrument contemplated hereby or
thereby, the performance by the parties thereto of their respective
obligations hereunder or thereunder or the consummation of the transactions
and the other transactions contemplated hereby or thereby, (ii) the use of
the proceeds of any Loan or (iii) any claim, litigation, investigation or
proceeding relating to any of the foregoing, whether or not any Indemnitee
is a party thereto, and to reimburse each Indemnitee promptly after demand
for all legal and other expenses incurred in connection with investigating
or defending any of the foregoing; provided that such indemnity shall not,
as to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses that are finally judicially
determined by a court of competent jurisdiction to have arisen from the
gross negligence or wilful misconduct of any Indemnitee. The provisions of
this Section 12.03(b) shall remain operative and in full force and effect
regardless of the expiration or termination of this Agreement or any other
Credit Document, the consummation of the transactions contemplated hereby,
the repayment of the Loans, the reduction or cancellation of the Loans or
the Commitments, the invalidity or unenforceability of any term or provision
of this Agreement or any other Credit Document, or any investigation made by
or on behalf of the Lenders.
Section 12.04. Sharing of Payments and Expenses. All funds
received by the Administrative Agent in respect of payments made by the
Borrower pursuant to, or from any Person on account of, this Agreement or
any other Credit Document (other than payments made pursuant to Section
10.09) shall be distributed forthwith by the Administrative Agent among the
Lenders, in like currency and funds as received, ratably in proportion to
their respective interests therein. In the event that any Lender shall
receive from the Borrower or any other source any payment of, on account of,
or for or under this Agreement or any other Credit Document (whether
received pursuant to the exercise of any right of set-off, banker's lien,
realization upon any security held for or appropriated to such obligation or
otherwise as permitted by law) other than pro rata, then such Lender shall
purchase from each other Lender so much of its interest in obligations of
the Borrower as shall be necessary in order that each Lender shall share
such payment proportionately with each of the other Lenders; provided that
no Lender shall purchase any interest of any Lender that does not, to the
extent that it may lawfully do so, set-off against the balance of any
deposit accounts maintained with it the obligations due to it under this
Agreement; and provided further that nothing herein contained shall obligate
any Lender to apply any set-off or banker's lien or collateral security
permitted hereby first to the obligations of the Borrower hereunder if the
Borrower is obligated to such Lender pursuant to other loans or notes, but
any such application of proceeds shall be pro rata among the obligations of
the Borrower to such Lender. In the event that any purchasing Lender shall
be required to return any excess payment received by it, the purchase shall
be rescinded and the purchase price restored to the extent of such return,
but without interest.
Section 12.05. Amendments. Any provision of this Agreement or
the other Credit Documents may be amended or waived if, but only if, such
amendment or waiver is in writing and is signed by the Borrower and the
Required Lenders (and, if the rights or duties of the Administrative Agent
are affected thereby, by the Administrative Agent); provided that no such
amendment, waiver or modification shall, unless consented to by all the
Lenders, (i) increase the Commitment of any Lender or subject any Lender to
any additional obligation, (ii) reduce the principal of or rate of interest
on any Loan, the amount of Letter of Credit Obligations on any Letter of
Credit or any fees hereunder, (iii) postpone the date fixed for any payment
of principal of or interest on any Loan or reimbursement of any drawing on
any Letter of Credit or any fees hereunder or for any reduction or termina-
tion of any Commitment, (iv) release all or substantially all of the Liens
or collateral under the Security Agreement (except Liens on property which
is otherwise permitted to be disposed of under the Security Documents), (v)
release the Guarantor from its obligations under the Guarantee, or (vi)
change the percentage of any of the Commitments, or the number of Lenders,
which shall be required for the Lenders or any of them to take any action
under this Section or any other provision of this Agreement; and provided
further that (A) no amendment, waiver or modification, which does not
require unanimous consent as set forth above, of any provision contained in
Section 3.06, 3.08 or 3.09(a) in a manner that disproportionately and
adversely affects the rights of one or more Lender Classes shall be
effective with respect to any such Lender Class unless consented to by
Lenders in such Lender Class holding greater than 50% of the aggregate
unpaid principal amount of the applicable type of Loans or, if no such Loans
are outstanding, having greater than 50% of the applicable type of
Commitments and (B) no amendment, waiver or modification of any provisions
contained in Section 3.07(b) in a manner that disproportionately and
adversely affects the rights of one or more Lender Classes shall be
effective with respect to any such Lender Class unless consented to by
Lenders in such Lender Class holding greater than 68% of the aggregate
unpaid principal amount of the applicable type of Loans or, if no such Loans
are outstanding, having greater than 68% of the applicable type of
Commitments. Any Lender which has sold a participating interest in its
Loans or its Commitment pursuant to Section 12.09 shall be entitled to split
its vote to account for the exercise of any voting right granted to a
Participant with respect to such participating interest permitted by Section
12.09.
Section 12.06. Cumulative Rights and No Waiver. Each and every
right granted to the Lenders hereunder or under any other document delivered
hereunder or in connection herewith, or allowed them by law or equity, shall
be cumulative and may be exercised from time to time. No failure on the
part of the Administrative Agent or any Lender to exercise, and no delay in
exercising, any right will operate as a waiver thereof, nor will any single
or partial exercise by the Administrative Agent or any Lender of any right
preclude any other or future exercise thereof or the exercise of any other
right.
Section 12.07. Notices. Any communication, demand or notice to
be given hereunder or with respect to the Notes will be duly given when
delivered in writing (which may include by telecopy transmission) to a party
at its address:
If to the Borrower, at
National Propane Corporation
1101 Second Avenue S.E.
Cedar Rapids, Iowa 53403
Attention:Terry D. Weikel
Senior Vice President &
Chief Financial Officer
Telecopy: (319) 365-3672
with a copy to
Triarc Companies, Inc.
900 Third Avenue
New York, New York 10022
Attention:Brian L. Schorr, Esq.
Executive Vice President &
General Counsel
Telecopy: (212) 230-3216
If to the Administrative Agent, at
The Bank of New York, as Administrative Agent
One Wall Street
New York, New York 10286
Attention:William A. O'Daly
Telecopy: (212) 635-1208
with a copy to
The Bank of New York, as Administrative Agent
Agency Function Administration
One Wall Street, 18th Floor
Attention: Carolyn Surles
Telephone: (212) 635-4695
Telecopy: (212) 635-6365
except that any notice, request or demand by the Borrower to or upon the
Administrative Agent or the Lenders pursuant to Sections 2.02(a), 3.05 and
4.03(b) shall not be effective until received.
If to any Lender, at its address as indicated on its signature
page hereto or notified to the Administrative Agent in writing.
Section 12.08. Separability. In case any one or more of the
provisions contained in this Agreement shall be invalid, illegal or
unenforceable in any respect under any law, the validity, legality and
enforceability of the remaining provisions contained herein shall not in any
way be affected or impaired thereby.
Section 12.09. Assignments and Participations. (a) This
Agreement shall be binding upon and inure to the benefit of the Borrower and
the Lenders and their respective successors and assigns; except that the
Borrower may not assign any of its rights hereunder without the prior
written consent of the Lenders, provided that, if the surviving entity of
the Public Gas Merger is Public Gas, subject to delivery of the certificate
and opinion referred to in Section 7.02(b), this Agreement may be assigned
to Public Gas.
(b) Any Lender may at any time grant to one or more banks or
other institutions (each a "Participant") participating interests in its
Commitments or any or all of its Loans. In the event of any such grant by a
Lender of a participating interest to a Participant, whether or not upon
notice to the Borrower and the Administrative Agent, such Lender shall
remain responsible for the performance of its obligations hereunder and
shall remain for all purposes of the Credit Documents the holder of Notes
not assigned by it to other Persons, and the Borrower and the Administrative
Agent shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement.
Any agreement pursuant to which any Lender may grant such a participating
interest shall provide that such Lender shall retain the sole right and
responsibility to enforce the obligations of the Borrower hereunder
including, without limitation, the right to approve any amendment,
modification or waiver of any provision of this Agreement; provided that
such participation agreement may provide that such Lender will not agree to
any modification, amendment or waiver of this Agreement described in clause
(i), (ii), (iii), (iv) or (v) of Section 12.05 without the consent of the
Participant. The Borrower agrees that each Participant shall be entitled to
the benefits of Sections 5.03, 5.04 and 12.04 with respect to its
participating interest; provided that all amounts payable to a Lender under
Sections 5.03, 5.04 and 12.04 shall be determined as if such Lender had not
granted any participation to any Participant. An assignment or other
transfer which is not permitted by subsection (c) below shall be given
effect for purposes of this Agreement only to the extent of a participating
interest granted in accordance with this subsection (b).
(c) With the written consent of the Borrower (if no Event of
Default shall have occurred and be continuing) and the Administrative Agent
(which consents will not be unreasonably withheld or delayed), any Lender
may assign to one or more banks or other institutions (each an "Assignee")
all, or a proportionate part (and if a proportionate part, in a minimum
amount of $5,000,000), of its rights and obligations under this Agreement
and the Notes, and such Assignee shall assume such rights and obligations,
pursuant to an instrument, in substantially the form of Exhibit R hereto,
executed by such Assignee and such transferor Lender. Upon execution and
delivery of such an instrument and upon notice to the Administrative Agent
together with payment to the Administrative Agent of a processing fee in the
amount of $2,500, such Assignee shall be a Lender party to this Agreement
and shall have all the rights and obligations of a Lender with a Commitment
or Commitments as set forth in such instrument of assumption, and the
transferor Lender shall be released from its obligations hereunder to a
corresponding extent, and no further consent or action by any party shall be
required. Upon the consummation of any assignment pursuant to this
subsection (c), the transferor Lender, the Administrative Agent and the
Borrower shall make appropriate arrangements so that, if required, new Notes
are issued to the Assignee.
(d) No Assignee of any Lender's rights shall be entitled to
receive any greater payment under Section 5.04 than such Lender would have
been entitled to receive with respect to the rights transferred, unless such
transfer is made with the Borrower's prior written consent or by reason of
the provisions of section 5.04 requiring such Lender to designate a
different Lending Office under certain circumstances or at a time when the
circumstances giving rise to such payment did not exist.
(e) Any Lender may assign, participate or transfer its rights,
in whole or in part, to an Affiliate of such Lender or to a Federal Reserve
Bank.
(f) If, pursuant to this Section 12.09, any interest in this
Agreement is transferred to any Assignee that is organized under the laws of
any jurisdiction other than the United States or any state thereof, the
Lender transferring such interest (the "Transferor Lender") shall cause such
Assignee concurrently with the effectiveness of such transfer, (a) to
represent to the Transferor Lender (for the benefit of the Transferor
Lender, Administrative Agent and Borrower) that it is either (i) entitled to
the benefits of an income tax treaty with the United States that provides
for an exemption from United States withholding tax on interest and other
payments which may be made by Borrower under this Agreement; or (ii) is
engaged in the trade or business within the United States, (b) to furnish to
the Transferor Lender, Administrative Agent and Borrower either Internal
Revenue Service Form 4224 or Internal Revenue Service Form 1001 (wherein
such Assignee claims entitlement to complete exemption from federal
withholding tax of the United States of America on all payments hereunder)
and (c) to agree (for the benefit of the Transferor Lender, Administrative
Agent and Borrower) to provide to the Transferor Lender, Administrative
Agent and Borrower such forms or documentation as may be required from time
to time, including, a new Form 4224 or Form 1001 upon the obsolescence of
any previously delivered form, in accordance with applicable laws and
regulations of the United States of America establishing the current status
of such Assignee with regard to continued entitlement to such complete
withholding tax exemption.
Section 12.10. Execution in 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 the counterparts shall together
constitute one and the same instrument. Delivery by telecopier of an
executed counterpart of a signature page of this Agreement or any other
Credit Document shall be effective as delivery of a manually executed
counterpart of this Agreement or such other Credit Document.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first above written.
NATIONAL PROPANE CORPORATION
By: TERRY D. WEIKEL
-------------------------------
Name: Terry D. Weikel
Title: Senior Vice President and
Chief Financial Officer
THE BANK OF NEW YORK, in its
capacity as a Lender and as
Administrative Agent for the Lenders
By: DAVID STEUBER
---------------------------------
Name: David Steuber
Title: Vice President
Address for Notices:
One Wall Street
New York, New York 10286
Attention: William A. O'Daly
Telecopy: (212) 635-1208
Eurodollar Lending Office:
One Wall Street
New York, New York 10286
THE FIRST NATIONAL BANK OF BOSTON
By: MICHAEL KANE
-------------------------------
Name: Michael Kane
Title: Managing Director
Address for Notices:
100 Federal Street,
P.O. Box 02016
Boston, Massachusetts 02110
Attention: Energy & Utilities 01-08-02
Telecopy: (617) 434-3652
Eurodollar Lending Office:
100 Federal Street,
P.O. Box 02016
Boston, Massachusetts 02110
INTERNATIONALE NEDERLANDEN (U.S.)
CAPITAL CORPORATION
By: ROBERT FELLOWS
--------------------------------
Name: Robert Fellows
Title: Vice President
Address for Notices:
135 East 57th Street
New York, New York 10022
Attention: Robert Fellows
Telecopy: (212) 593-3362
Eurodollar Lending Office:
135 East 57th Street
New York, New York 10022
USL CAPITAL CORPORATION
By: CRAIG F. BRUZZONE
-----------------------------------
Name: Craig F. Bruzzone
Title: Vice President, Municipal
and Corporate Financing
Address for Notices:
733 Front Street
San Francisco, California
Attention: Mark Nuti
Telecopy: (415) 627-4405
Eurodollar Lending Office:
733 Front Street
San Francisco, California
PILGRIM PRIME RATE TRUST
By: KATHLEEN LINARCIC
----------------------------------
Name: Kathleen Linarcic
Title: Senior Credit Analysis
Address for Notices:
10100 Santa Monica Boulevard
Los Angeles, California
Attention: Kathleen Linarcic
Telecopy: (301) 551-0003
Eurodollar Lending Office:
10100 Santa Monica Boulevard
Los Angeles, California
Schedule 1
Revolving Credit Commitments
---------------------------------
Commitment As
Lender of Effective Date
------- ------------------
The Bank of New York $16,923,076.92
Internationale Nederlanden (U.S.) 13,076,923.08
Capital Corporation
The First National Bank of Boston 10,000,000.00
--------------
$40,000,000.00
Schedule 2
Tranche A Term Loan Commitments
---------------------------------
Commitment As
Lender of Effective Date
------- ------------------
The Bank of New York $25,384,615.38
Internationale Nederlanden (U.S.)
Capital Corporation 19,615,384.62
The First National Bank of Boston 15,000,000.00
--------------
$60,000,000.00
Schedule 3
Tranche B Term Loan Commitments
--------------------------------
Commitment A
Lender of Effective Date
------- ------------------
USL Capital Corporation $20,000,000.00
Pilgrim Prime Rate Trust 10,000,000.00
--------------
$30,000,000.00
Schedule 4
Tranche C Term Loan Commitments
----------------------------------
Commitment As
Lender of Effective Date
------- ------------------
The Bank of New York $ 5,000,000.00
Internationale Nederlanden (U.S.)
Capital Corporation 10,000,000.00
The First National Bank of Boston 5,000,000.00
----------------
$ 20,000,000.00
Schedule 5
Subsidiaries of the Borrower
-------------------------------
State or Jurisdiction
Under which Organized
---------------------
Adirondack Bottled Gas Corporation of New York New York
Adirondack Bottled Gas Corporation of Vermont Vermont
Carib Gas Corporation of St. Croix
(formerly LP Gas Corporation of St. Croix) Delaware
Carib Gas Corporation of St. Thomas Delaware
(formerly LP Gas Corporation of St. Thomas)
Equipment Maintenance, Inc. New York
NPC Leasing Corp. New York
The Home Gas Corporation of Great Barrington Massachusetts
The Home Gas Corporation of Massachusetts Massachusetts
The Home Gas Corporation of New Hampshire, Inc. New Hampshire
The Home Gas Corporation of Pittsfield Maine
The Home Gas Corporation of Plainville Connecticut
Schedule 6
Environmental Protection
----------------------------
Schedule 7
Certain Permitted Liens
---------------------------
Description of
Secured Party Address of Property Property Nature of Lien
------------- ------------------- -------------- --------------
Antigo Gas 1584 Neva Rd., Real Estate Mortgage
& Electric Antigo, WI 54409
Hudspeth Propane 1805 N. Falls Blvd., Real Estate Mortgage
Wynne, AR 75396
Hudspeth Propane Wynne, AR Tanks and Security Agreement
equipment at UCC
customer locations
White River Court Square, Real Estate Mortgage
Propane Co. Melbourne, AR 72566
White River Melbourne, AR Tanks and Security Agreement
Propane Co. equipment at UCC
customer locations
Baxter Oil Co. 411 S. High Street, Real Estate Mortgage
Baxter, IA 50028
Baxter Oil Co. Baxter, IA Tanks and Security Agreement
equipment at UCC
customer locations
Milligan Bros. Baxter, IA Tanks and Security Agreement
Propane Co. equipment at UCC
customer locations
ARK-LA-TEX LP Texarkana, AR Tanks and Security Agreement
Gas, Inc. equipment at UCC
customer locations
B.J. Harmon Karnack, TX Tanks and Security Agreement
equipment at UCC
customer locations
Ozark Gas Willow Springs Tanks and Security Agreement
Thayer, West Plains, equipment at UCC
MO customer locations
Garrett's 1125 E. Broadway St. Real Estate Mortgage
Propane Gas Bolivar, MO 65613
Service, Inc.
Garrett's Highway 13, Bolivar, Real Estate Mortgage
Propane Gas MO 65613
Service, Inc.
Garrett's Bolivar, Springfield Tanks and Security Agreement
Propane Gas Pleasant Hope, MO equipment at UCC
Service, Inc. customer locations
Capitalized Leases
Berthel Fisher 1101 Second Ave, SE Office partitions Security Agreement
& Co. Leasing Cedar Rapids, IA and equipment UCC
52403
ITT/First All locations Computers and Security Agreement
Equipment Co. peripheral UCC
computer equipment
General Motors All locations Vehicles Security Agreement
Acceptance Corp. UCC
Hyster Credit All locations Vehicles Security Agreement
Company UCC
Ford Motor All locations Vehicles Security Credit
Agreement
Company UCC
PHH Financial All locations Vehicles Security Agreement
UCC
Caterpillar All locations Vehicles Security Agreement
UCC
AT&T Automotive All locations Vehicles Security Agreement
UCC
Pitney Bowes Wyandanch, NY Leased postage UCC
Credit equipment
Advanta Leasing Jacksonville, FL Leased telephone UCC
Acceptance Corp. equipment
Comelec Monticello, IA Leased telephone UCC
Services, Inc. equipment
Mellon Bank Pittsburgh, PA Letter of Credit Letter of Credit
Collateral A/C Guarantee - UCC
Schedule 8
Certain Indebtedness of the Borrower
-------------------------------------------
Note Payable To Date of Note Original Note Balance
--------------------- ------------ ------------- -------
Antigo Gas & Electric 10/01/85 555,000.00 90,008.40
Hudspeth Propane 02/23/88 416,000.00 332,800.34
White River Propane
Company, Inc. 10/03/90 212,750.00 42,550.00
J.W. Ellis 10/03/90 199,875.00 39,975.00
Hale Bibb 10/03/90 199,875.00 39,975.00
Baxter Oil Company 10/21/91 300,000.00 137,044.88
Milligan Bros.
Propane Company 10/21/91 416,000.00 189,338.52
ARK-LA-TEX LP Gas, Inc. 11/11/93 398,500.00 325,441.63
B.J. Harmon 11/11/93 290,000.00 236,833.37
Ozark Gas 12/09/93 2,662,500.00 2,662,500.00
Chesapeake Insurance
Company, Ltd. 06/01/94 1,250,000.00 1,250,000.00
Garrett's Propane Gas
Service, Inc. 9/19/94 950,000.00 950,000.00
Subordinated Debentures 03/01/84 $70,000,000.00 $49,000,000.00
Capitalized Leases
with Note Payable To Date of Note Original Note Balance
--------------------- ------------ ------------- -------
Berthel Fisher &
Co. Leasing 11/93 184,327.33 150,057.49
ITT/First Equipment Co. 02/94 1,400,305.30 1,154,554.66
General Motors
Acceptance Corp. Varios 322,037.18 50,586.76
Hyster Credit Company Various 66,082.00 8,605.26
Ford Motor Credit Company Various 7,580,686.72 3,548,861.79
PHH Financial Various 201,378.56 59,199.74
Caterpillar Various 43,132.69 13,292.27
AT&T Automotive Various 440,737.88 296,876.71
Exhibit A
GUARANTEE, dated as of October 7, 1994, of TRIARC COMPANIES,
INC., a Delaware corporation (the "Guarantor"), in favor of The Bank of New
York (the "Administrative Agent"), as agent for the Lenders party to the
Credit Agreement referred to below and any Lender or Affiliate of a Lender
which is a party to an Interest Rate Agreement entered into in connection
with the Credit Agreement (the Administrative Agent, the Lenders and such
Affiliates being referred to herein collectively as the "Creditors").
Capitalized terms used herein and not otherwise defined shall
have the meanings ascribed to them in the Revolving Credit and Term Loan
Agreement, dated as of October 7, 1994 (as amended, supplemented, modified
or extended from time to time, the "Credit Agreement"), among National
Propane Corporation (the "Borrower"), the Lenders party thereto, The Bank of
New York, as Administrative Agent, and The First National Bank of Boston and
Internationale Nederlanden (U.S.) Capital Corporation, as Co-Agents.
1. Guarantee. For value received, and to induce the Creditors
to make the Loans or otherwise extend credit from time to time to or for the
account of the Borrower pursuant to the terms of the Credit Agreement, to
enter into Interest Rate Agreements entered into in connection with the
Credit Agreement or to issue Letters of Credit for the account of the
Borrower, the Guarantor unconditionally and irrevocably guarantees to the
Creditors, their successors, endorsees and assigns, the prompt payment when
due of all present and future obligations and liabilities of all kinds of
the Borrower to any of the Creditors based on, arising out of, or otherwise
relating to the Credit Documents, any Interest Rate Agreements entered into
in connection with the Credit Agreement or any Letter of Credit, whether
incurred by the Borrower as maker, endorser, drawer, acceptor, guarantor,
accommodation party or otherwise, and whether due or to become due, secured
or unsecured, absolute or contingent, joint or several, and howsoever or
whenever incurred by the Borrower (the "Obligations").
2. Absolute Guarantee. The Guarantor's obligations hereunder
shall not be affected by the genuineness, validity, regularity or
enforceability of the Obligations or any instrument evidencing any
Obligations, or by the existence, validity, enforceability, perfection, or
extent of any collateral therefor or by any other circumstance relating to
the Obligations (other than the irrevocable payment in full thereof) which
might otherwise constitute a defense to this Guarantee. The Creditors make
no representation or warranty in respect to any such circumstance and have
no duty or responsibility whatsoever to the Guarantor in respect to the
management and maintenance of the Obligations or any collateral therefor.
The Creditors shall not be obligated to file any claim relating to the
Obligations in the event that the Borrower becomes subject to a bankruptcy,
reorganization or similar proceeding, and the failure of the Creditors to so
file shall not affect the Guarantor's obligations hereunder.
The Guarantor authorizes the Creditors, without notice to,
demand of, or consent from the Guarantor, and without affecting its
liability hereunder to the Creditors, from time to time (a) to renew,
extend, accelerate or otherwise change the time or place for payment of, or
otherwise change the terms of, the Obligations or any part thereof
including, without limitation, to increase or decrease the rate of interest
thereon; (b) to take and hold security for the payment or performance of the
Obligations and exchange, enforce, waive, surrender, modify, impair, change,
alter, renew, continue, compromise or release in whole or in part any such
security, or fail to perfect its interest in any such security or to
establish its priority with respect thereto; (c) to apply such security and
direct the order or manner of sale thereof as the Creditors in their sole
discretion may determine; (d) to release any other guarantor, in whole or in
part, from any or all of the Obligations or substitute any or all of the
obligations of any other guarantor; (e) to settle or compromise any or all
of the Obligations with any other guarantor or any endorser of the
Obligations; and (f) to subordinate any or all of the Obligations to any
other obligations of or claim against any other guarantor, whether owing to
or existing in favor of the Creditors or any other party. The Guarantor
shall be and remain bound hereunder notwithstanding any such renewal,
extension, acceleration, change, taking, holding, exchange, enforcement,
waiver, surrender, modification, impairment, alternation, renewal,
continuation, compromise, release, failure, application, direction,
substitution, settlement or subordination.
In the event that the Borrower becomes insolvent or files a
petition for reorganization, arrangement, composition, discharge or similar
relief under any present or future provision of the Bankruptcy Reform Act of
1978, as amended, or any other applicable present or future bankruptcy or
insolvency statute, or if such a petition be filed against the Borrower and
in any such proceedings some or all of the Obligations shall be terminated
or rejected or any of the Obligations modified or abrogated, the Guarantor
agrees that its liability hereunder shall not thereby be affected or
modified, and such liability shall continue in full force and effect as if
no such action or proceeding had occurred and shall continue to be effective
or reinstated, as the case may be, if any payment of any of the Obligations
must be returned by any Creditor upon such insolvency, bankruptcy or
reorganization, or otherwise, as though such payment had not been made.
The Guarantor waives any and all statutory or other right which
the Guarantor may otherwise have to require the Creditors to (a) proceed
against the Borrower or any other guarantor; (b) proceed against or exhaust
any security from the Borrower or any other guarantor; or (c) pursue any
other remedy in their power whatsoever. The Creditors may, at their
election, exercise any right or remedy they may have against the Borrower or
any other guarantor or any security now or hereafter held by or for the
benefit of the Creditors including, without limitation, the right to
foreclose upon any such security by judicial or nonjudicial sale, without
affecting or impairing in any way the liability of or the Guarantor
hereunder except to the extent the Obligations may thereby be paid. Only
the net proceeds from any such foreclosure, after deduction of all costs and
expenses authorized to be deducted pursuant to the documents under which
such security is held or by law, shall be applied against the Obligations.
Any one or more of the Creditors may at their discretion purchase all or any
part of such security so sold or offered for sale for their own account and
may apply against the amount bid therefor all or any part of the Obligations
for which such security is held; and in such case, only that portion of the
proceeds realized, after deduction of all costs and expenses authorized to
be deducted pursuant to the documents under which such security is held or
law, shall be applied against the Obligations. The Guarantor waives any
defense arising out of the absence, impairment or loss of any right of reim-
bursement or subrogation or other right or remedy against the Borrower or
any other guarantor or any such security, whether resulting from the
exercise by the Creditors of any right or remedy they may have against the
Borrower or any other guarantor, any defect in, failure of, or loss or
absence of priority with respect to the interest of the Creditors in such
security, or otherwise. In the event that any foreclosure sale is deemed to
be not commercially reasonable, the Guarantor waives any right that it may
have to have any portion of the Obligations discharged except to the extent
of the amount actually bid and received by the Creditors at any such sale.
The Creditors shall not be required to institute or prosecute proceedings to
recover any deficiency as a condition of payment hereunder or enforcement
hereof.
The Guarantor acknowledges that repeated and successive demands
may be made and payments or performance made hereunder in response to such
demands as and when, from time to time, the Borrower may default in
performance of the Obligations. Notwithstanding any such performance here-
under, this Guaranty shall remain in full force and effect and shall apply
to any and all subsequent defaults by the Borrower in payment or performance
of the Obligations.
The Guarantor waives any setoff, defense or counterclaim which
the Guarantor may have or claim to have against any Creditor.
3. Representations and Warranties. The Guarantor hereby
represents and warrants that:
(a) The Guarantor has full power and authority to execute,
deliver and perform this Guarantee and to incur the obligations
provided for herein, all of which have been duly authorized by all
proper and necessary corporate action. No consent or approval not
heretofore obtained and in full force and effect of its stockholders,
is required as a condition to the validity or performance of, or the
exercise by the Creditors of any of their rights and remedies under,
this Guarantee.
(b) This Guarantee constitutes the valid and legally binding
obligation of the Guarantor, enforceable in accordance with its terms,
subject to bankruptcy, insolvency, reorganization, fraudulent transfer
and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles (regardless of
whether enforcement is sought in a proceeding at law or in equity).
(c) There is no statute, regulation, rule, order or judgment,
and no provision of any agreement or instrument binding on the
Guarantor or affecting its properties and no provision of the
certificate of incorporation or by-laws of the Guarantor which would
prohibit, conflict with or in any way be inconsistent with or prevent
the execution, delivery, or performance of this Guarantee or result in
or require the creation or imposition of any Lien on any of the
properties of the Guarantor as a consequence of the execution,
delivery and performance of this Guarantee or the consummation of the
transactions contemplated hereby; and the execution, delivery and
performance by the Guarantor of this Guarantee and the consummation of
transactions contemplated hereby do not (i) violate any provision of
law applicable to the Guarantor, or any order, judgment or decree of
any court or other agency of government binding on the Guarantor, (ii)
conflict with, result in a breach of or constitute (with due notice or
lapse of time or both) a default under any material agreement or
instrument affecting its properties or (iii) require any approval of
its stockholders or any approval or consent of any Person under any
agreement or instrument binding on the Guarantor affecting its
properties, other than approvals or consents (a) which have been
previously obtained and are in full force and effect or (b) the
absence of which could not reasonably be expected to have a Material
Adverse Effect.
4. Financial Information. So long as the Borrower may borrow
under the Credit Agreement and until payment in full of the Notes and
performance of all other obligations of the Borrower thereunder, the
Guarantor will furnish to the Administrative Agent with sufficient copies
for each Lender: (i) as soon as available, each Annual Report on Form 10-K,
Annual Report to Stockholders, and Quarterly Report on Form 10-Q, in each
case in the form filed with the Securities and Exchange Commission or
distributed to Stockholders, together with any amendments or supplements to
any such report; (ii) in the event that the Guarantor shall no longer be
subject to reporting requirements under the Securities Exchange Act of 1934,
(A) as soon as available, but in no event more than 50 days after the end of
each of its first three fiscal quarters in each year, a balance sheet of the
Guarantor (consolidated and parent-company-only) as of the end of such
period, statements of operations of the Guarantor (consolidated and parent-
company-only) from the beginning of the then current fiscal year and from
the beginning of such fiscal quarter to the end of such period, and a
statement of cash flows of the Guarantor (consolidated) from the beginning
of the then current fiscal year to the end of such period, certified by the
Chief Financial Officer or Chief Accounting Officer of the Guarantor, (B) as
soon as available, but in no event more than 95 days after the end of its
fiscal year, annual financial statements of the Guarantor in reasonable
detail and satisfactory to the Administrative Agent and prepared in
accordance with GAAP, including a consolidated balance sheet as of the end
of such fiscal year and a consolidated statement of operations and retained
earnings and a consolidated statement of cash flows for such fiscal year
accompanied by a supplemental consolidating balance sheet as of the end of
such fiscal year and a supplemental consolidating statement of operations
for such fiscal year, together with an audit report of Deloitte & Touche,
LLP or other independent auditors reasonably satisfactory to the
Administrative Agent; and (iii) at least once during each fiscal year of the
Guarantor and promptly after approval of the budget by the Guarantor's Board
of Directors, a schedule showing total fees to be charged by the Guarantor
to each of its subsidiaries during the next succeeding fiscal year,
including calculations showing detail of the allocation among such
subsidiaries, together with a letter to the Guarantor of Deloitte & Touche,
LLP or other independent auditors reasonably satisfactory to the
Administrative Agent, indicating that the amount of such total fees set
forth on such schedule does not exceed the Guarantor's unconsolidated,
parent-company-only overhead expense budgeted for such fiscal year.
5. Expenses. The Guarantor agrees to pay on demand all
out-of-pocket expenses (including the reasonable fees and expenses of
counsel) reasonably incurred in connection with the enforcement or
protection of the rights of the Creditors hereunder.
6. Subrogation. Until all Obligations shall have been
satisfied, the Guarantor shall not have any right of subrogation, waives any
right to enforce any remedy which any Creditor now has or may hereafter have
against the Borrower or any other guarantor and waives any and all statutory
or other rights to participate in any security now or hereafter held by any
Creditor.
7. Continuing Guarantee. This is a continuing Guarantee and
shall remain in full force and effect and be binding upon the Guarantor, its
successors and assigns until full and final payment of all Obligations.
8. No Waiver; Cumulative Rights. No failure on the part of any
Creditor to exercise, and no delay in exercising, any right, remedy or power
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise by the Creditors of any right, remedy or power hereunder preclude
any other or future exercise of any other right, remedy or power. Each and
every right, remedy and power hereby granted to the Creditors or allowed
them by law or other agreement shall be cumulative and not exclusive the one
of any other, and may be exercised by the Creditors from time to time.
9. Waiver of Notice. The Guarantor waives notice of the
acceptance of this Guarantee and of the making of any Loans or other
extensions of credit to the Borrower, presentment to or demand or payment
from anyone whomsoever liable upon any of the Obligations, presentment,
demand, notice of dishonor, protest, notice of any sale of collateral
security and all other notices whatsoever.
10. GOVERNING LAW. THIS GUARANTEE SHALL BE GOVERNED BY,
AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
11. Consent to Jurisdiction. The Guarantor hereby irrevocably
submits to the non-exclusive jurisdiction of any State or federal court in
New York City for the purpose of any suit, action, proceeding or judgment
arising out of or relating to this Guarantee, and the Guarantor hereby
irrevocably consents to the jurisdiction of any such court in any such
action and to the laying of venue in New York City. The Guarantor hereby
irrevocably waives any objection to the laying of the venue of any such
suit, action or proceeding brought in the aforesaid courts and hereby irre-
vocably waives any claim that any such suit, action or proceeding brought in
any such court has been brought in an inconvenient forum. Notwithstanding
the foregoing, nothing herein shall in any way affect the right of the
Creditors to bring any action arising out of or relating to this Guarantee
in any competent court elsewhere having jurisdiction over the Guarantor or
its property.
12. WAIVER OF JURY TRIAL. THE GUARANTOR HEREBY
IRREVOCABLY
WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS GUARANTEE.
IN WITNESS WHEREOF, this Guarantee has been duly executed and
delivered by the Guarantor to the Creditors as of the date first above
written.
TRIARC COMPANIES, INC.
By: ________________________________
Name:
Title:
Exhibit B
PRO-FORMA HISTORICAL EBITDA CALCULATION
--------------------------------------------
(in thousands)
Historical Information
-----------------------
Average EBITDA during the
last two fiscal years of target: ______________
Adjustments
-----------
Effect of Volume Increase/Decrease ______________
Gross Margin Increase ______________
Gross Margin Decrease ______________
SGA Increase ______________
SGA Decrease ______________
Other Gross Margin Improvement
(appliances/labor) ______________
Total Adjustments ______________
Pro-forma Historical EBITDA ______________
Key Assumptions Used in Making Adjustments
(a) Volume
(b) Gross Margin
(c) SGA
(d) Other
[The CFO would sign below to confirm that the assumptions used in the above
analysis were reasonable at the date of calculation.]
Exhibit C
---------------------------------------------------
MORTGAGE, MORTGAGE DEED
AND SECURITY AGREEMENT
made as of __________ __, 1994
By
NATIONAL PROPANE CORPORATION,
as Mortgagor,
To and With
THE BANK OF NEW YORK,
in its individual capacity and as Administrative Agent
for the LENDERS,
as Mortgagee,
To Secure a Principal Amount of up to
$150,000,000.
---------------------------------------------------
Return after recording to:
Sullivan & Cromwell
250 Park Avenue
New York, New York 10177-0021
Attention: James I. Black III
TABLE OF CONTENTS
Page
Recitals
Mortgage of Property
ARTICLE ONE
PARTICULAR COVENANTS
SECTION 1.01 Title
SECTION 1.02 Taxes
SECTION 1.03 Insurance
SECTION 1.04 Maintenance of Property, etc.
SECTION 1.05 Sale, Leasing and Mortgaging
SECTION 1.06 Environmental Matters
SECTION 1.07 Further Assurances
SECTION 1.08 Recording
SECTION 1.09 After-acquired Property
ARTICLE TWO
CONDEMNATION
SECTION 2.01 Condemnation
ARTICLE THREE
EVENTS OF DEFAULT AND REMEDIES
SECTION 3.01 Events of Default
SECTION 3.02 Sale of Property; Application of
Proceeds
SECTION 3.03 Purchase by the Mortgagee
SECTION 3.04 Receivers
SECTION 3.05 Remedies Cumulative
SECTION 3.06 Waiver of Rights
ARTICLE FOUR
SECURITY AGREEMENT
SECTION 4.01 Security Agreement
ARTICLE FIVE
MISCELLANEOUS
SECTION 5.01 Notices and Other Communications to
the Mortgagee and Mortgagor
SECTION 5.02 Effective Notice Delivery
SECTION 5.03 Effect of Headings
SECTION 5.04 Successors and Assigns
SECTION 5.05 Separability Clause
SECTION 5.06 Applicable Law
SECTION 5.07 Satisfaction
SECTION 5.08 Counterparts
SECTION 5.09 Schedules; Addenda
SECTION 5.10 Limitations of Liability
[SECTION 5.11 Lien Law
SECTION 5.12 No Residential Units
SECTION 5.13 Maximum Principal Indebtedness
SCHEDULES:
A: Land Description
B: Permitted Encumbrances
ADDENDA
No. 1: Special Connecticut Provisions
No. 2: Special Iowa Provisions
No. 3: Special Massachusetts Provisions
No. 4: Special Michigan Provisions
No. 5: Special Minnesota Provisions
No. 6: Special Wisconsin Provisions
THIS MORTGAGE, MORTGAGE DEED AND SECURITY AGREEMENT, dated
as
of __________ ____, 1994 (together with all amendments and supplements
thereto, this "Mortgage"), made by NATIONAL PROPANE CORPORATION, a Delaware
corporation (the "Mortgagor"), having an address at 1101 Second Avenue,
S.E., Cedar Rapids, Iowa 52403, as mortgagor, to and with THE BANK OF NEW
YORK, a New York banking corporation, in its individual capacity, and as
Administrative Agent (the "Administrative Agent") for the Creditors (as
hereinafter defined) as mortgagee (the "Mortgagee");
W I T N E S S E T H:
A. Pursuant to the Revolving Credit and Term Loan Agreement,
dated as of October 7, 1994 (as amended, modified, supplemented or extended
from time to time, the "Agreement"), among the Mortgagor, each of the
several lenders from time to time parties thereto (the "Lenders"), the
Administrative Agent and the Co-Agents (as defined therein) the Lenders have
agreed to extend credit to the Mortgagor; and
B. One or more of the Lenders and/or certain affiliates of
the Lenders may enter into Interest Rate Agreements (as defined in the
Agreement) with Mortgagor to hedge interest payable on the Loans (as defined
in the Agreement) (such affiliates together with the Administrative Agent,
the Co-Agents and the Lenders being collectively referred to herein as the
"Creditors"); and
C. The obligation of the Lenders to extend certain credit to
the Mortgagor pursuant to the Agreement is conditioned upon the execution
and delivery by the Mortgagor of this Mortgage to secure all present and
future obligations and liabilities of all kinds of Mortgagor to the
Creditors on, arising out of, or otherwise relating to the Credit Documents,
any Interest Rate Agreement or any Letter of Credit (collectively referred
to as the "Obligations").
D. The Mortgagor owns the Properties more particularly
described on Schedule A annexed hereto including the Property which is
designated as Parcel I on said Schedule A against which this Mortgage is to
be recorded.
E. The capitalized terms used but not defined herein shall
have the meanings given such terms in the Agreement.
MORTGAGE OF PROPERTY
NOW THEREFORE, in consideration of these premises the parties
hereto agree as follows: Mortgagor does hereby create a security interest
in, mortgage and warrant, grant, convey, assign, bargain, sell, pledge,
give, transfer and set over unto the Mortgagee, for the benefit of the
Creditors and their successors and assigns forever, all of Mortgagor's
right, title and interest in, to and under all of the following property now
owned or hereafter acquired (hereinafter collectively referred to as the
"Mortgaged Property"):
(1) All the land more particularly described on Schedule A
annexed hereto (each a "Property" and collectively, the "Properties")
together with all appurtenant rights, titles and interests in and to the
land lying in the beds of the streets adjoining such land, and all
easements, rights, privileges and other appurtenances and all unused air
and/or development rights belonging to or appertaining to the Properties
(collectively, the "Premises);
(2) The buildings and improvements located on the Properties
together with all other buildings and improvements now or hereafter located
or erected on the Properties (the "Improvements");
(3) All appliances, apparatus, building materials, equipment,
fittings, fixtures, furnishings, furniture, machinery, other articles of
personal property and replacements thereof not owned by, paid for by or
leased from third-parties and now or at any time hereafter placed upon or
used in any way in connection with the occupancy or operation of the
Improvements or Premises, including all airconditioning, heating, lighting,
plumbing, communications, elevator and security systems now or at any time
hereafter attached to, placed upon or used in connection with the occupancy
or operation of the Improvements or the Premises (collectively, the
"Equipment");
(4) All leases, subleases, licenses, management contracts and
other agreements permitting third-parties to occupy or use all or any parts
of the Premises or Improvements in return for the payment of any Rents,
royalties or other fees (collectively, the "Leases"), and all rents,
revenues, royalties, income, profits, receipts, charges and other fees paid
or payable thereunder (collectively, "Rents") together with all cash,
securities or letters of credit deposited thereunder to secure the
performance of the obligations of the third parties thereunder;
(5) All real estate tax refunds and all proceeds of the
conversion, voluntary or involuntary, of any of the Premises, Improvements,
Equipment or Rents into cash or liquidated claims, including proceeds of
insurance claims, condemnation awards, and awards which may become due by
reason of the taking of all or any part of the Premises or Improvements by
eminent domain (collectively called "Proceeds").
TO HAVE AND TO HOLD by the Mortgagee and its successors and
assigns forever, subject only to the exceptions and encumbrances (the
"Permitted Encumbrances") listed on Schedule B annexed hereto.
ARTICLE ONE
Particular Covenants
Mortgagor hereby represents, warrants and covenants as
follows:
SECTION 1.01 Title. The Mortgagor has good and marketable
title to an indefeasible fee estate in the Premises and Improvements, and
the Mortgagor is the owner of the other elements of the Mortgaged Property
subject only to the Permitted Encumbrances.
SECTION 1.02 Taxes. Mortgagor will pay and discharge, and
cause each of its Subsidiaries to pay and discharge, all taxes, assessments
and governmental charges upon it, its income and its properties prior to the
date on which penalties are attached thereto, unless and to the extent only
that (i) (x) such taxes, assessments and governmental charges shall be
contested in good faith and by appropriate proceedings by the Mortgagor and
(y) reserves which are adequate under GAAP are maintained by the Mortgagor
with respect thereto, or (ii) any failure to pay and discharge such taxes,
assessments and governmental charges would not, individually or in the
aggregate, have a Material Adverse Effect.
SECTION 1.03 Insurance. Mortgagor will maintain, for itself
and its Subsidiaries, insurance with responsible insurance companies against
such risks, and on such properties and in such amounts as is customarily
maintained by Persons engaged in the same or similar businesses. The
Mortgagor shall deliver to the Mortgagee upon its request a detailed list of
the insurance companies, the amounts and rates of the insurance, the dates
of the expiration thereof and the properties and risks covered thereby.
SECTION 1.04 Maintenance of Property, etc. The Mortgagor
shall maintain, keep and preserve all of the Mortgaged Property in good
repair, working order and condition except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect.
SECTION 1.05 Sale, Leasing and Mortgaging. The Mortgagor
will not, without the prior written consent of the Mortgagee, (a) sell,
transfer or convey the Mortgaged Property or any part thereof or interest
therein, or permit the Mortgaged Property or any part thereof or any
interest therein to be sold, transferred or conveyed, to any other person or
entity, or (b) lease any of the Mortgaged Property or (c) further encumber
the Mortgaged Property by any other mortgage, assignment of rents or other
instrument imposing a lien thereon in connection with or a security for any
other financing, except as provided in Section 8.02(a) or (b) of the
Agreement.
SECTION 1.06 Environmental Matters. Mortgagor will comply,
and cause each of its Subsidiaries to comply, with all applicable
Environmental Laws except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse
Effect, (ii) notify the Mortgagee promptly after becoming aware thereof of
any material release, Adverse Environmental Condition or Environmental Claim
in connection with the Mortgagor's or any of its Subsidiaries facilities,
and (iii) promptly forward to the Mortgagee a copy of any order, notice,
permit, application, or any other communication or report received by the
Mortgagor or any of its Subsidiaries in connection with any such matters as
they may affect such premises, and the response or planned response thereto
of the Mortgagor or any of its Subsidiaries.
SECTION 1.07 Further Assurances. Mortgagor will, at its
expense, do, execute, acknowledge and deliver or cause to be done, executed,
acknowledged and delivered all such further acts, instruments and assurances
reasonably required by the Mortgagee for the better granting to the
Mortgagee of Mortgagor's interest hereby granted or for carrying out the
intention of, or facilitating the performance of, this Mortgage.
SECTION 1.08 Recording. Mortgagor will, upon the execution
and delivery hereof, and thereafter from time to time, cause this Mortgage,
any supplement or amendment thereto and financing statements with respect
thereto (collectively, the "Recordable Documents"), to be filed, registered
and recorded as may be required by law to publish notice of and maintain the
lien hereof upon the Mortgaged Property and to publish notice of and protect
the validity hereof. Mortgagor will, from time to time, perform or cause to
be performed any other act as required by law, and will execute or cause to
be executed any and all further instruments (including financing statements,
continuation statements and similar statements with respect to any of said
documents) reasonably requested by the Mortgagee for such purposes. If
Mortgagor shall fail to execute, deliver and file such financing statements
and other instruments in accordance with the provisions of this Section, the
Mortgagee shall be and are hereby irrevocably appointed the agents and
attorneys-in-fact of Mortgagor to do so. To the extent permitted by law,
Mortgagor will pay all recording taxes and similar fees incident thereto,
and all taxes and other similar governmental charges and fees, and all
reasonable out-of-pocket expenses (including the cost of title insurance),
directly incurred in connection with the preparation, execution, delivery or
acknowledgment of the Recordable Documents, and any instruments of further
assurance.
SECTION 1.09 After-acquired Property. All right, title and
interest of Mortgagor in and to all improvements, alterations,
substitutions, restorations and replacements of, and all additions and
appurtenances to any property, hereafter acquired by or released to
Mortgagor immediately upon such acquisition or release and without any
further granting by Mortgagor shall become part of the Mortgaged Property
and shall be subject to the lien of this Mortgage fully, completely and with
the same effect as though now owned by Mortgagor and specifically described
herein; at any time Mortgagor will execute and deliver to the Mortgagee any
document which the Mortgagee may reasonably require to subject the same to
the lien of this Mortgage.
ARTICLE TWO
Condemnation
SECTION 2.01 Condemnation. The Mortgagor shall give the
Mortgagee prompt notice of any condemnation proceedings or proposed taking
by eminent domain that might affect the Mortgaged Property, and the
Mortgagee shall have the right to join the Mortgagor in adjusting any loss
or settling any claim for compensation in excess of $1,000,000. The
Mortgagor shall promptly repair, replace or rebuild any part of the
Mortgaged Property which may be taken by condemnation to the extent that it
may, in its good faith business judgment, determine to do so. Any moneys
received by the Mortgagor as any award made for any taking of the Mortgaged
Property, shall be paid over to the Mortgagee and held by Mortgagee without
liability for interest thereon and may be applied by Mortgagee as provided
in the Credit Agreement or the Interest Rate Agreements or, to the extent
not so provided, as Mortgagee may deem appropriate toward payment of any of
the Obligations in such order or manner as Mortgagee may elect.
ARTICLE THREE
Events of Default and Remedies
SECTION 3.01 Events of Default. If there shall occur and be
continuing an Event of Default:
I. The Mortgagee, individually, or by its agents or
attorneys, may enter into and upon the Mortgaged Property and may exclude
Mortgagor and its respective agents and servants wholly therefrom; and, at
the expense of the Mortgagor may use, operate, manage and control the same
and conduct the business thereof, may maintain and restore the Mortgaged
Property, may insure and reinsure the same, may conduct such environmental
studies of the Premises as the Mortgagee deem necessary or appropriate, may
procure title searches and policies with respect to the Premises and may
make all necessary or proper repairs, renewals and replacements and any
useful alterations, additions, betterments and improvements thereto and
thereon, all as the Mortgagee may deem advisable; and in every such case,
the Mortgagee shall have the right to manage and operate the Mortgaged
Property and to carry on the business thereof and exercise all rights and
powers of Mortgagor with respect thereto either in the name of Mortgagor or
otherwise as the Mortgagee shall deem best. The Mortgagee shall be entitled
to collect and receive all earnings, revenues, rents, issues, awards,
proceeds, profits and income of the Mortgaged Property and said earnings,
revenues, rents, issues, awards, proceeds, profits and income are hereby
assigned to the Mortgagee. After deducting the expenses of conducting the
business thereof and of all maintenance, repairs, renewals, replacements,
alterations, additions, betterments and improvements and taxes, assessments,
insurance and prior or other proper charges upon the Mortgaged Property, as
well as reasonable compensation for the services of all attorneys, servants
and agents of the Mortgagee properly engaged and employed (including
compensation and expenses in connection with any appeal), the moneys arising
as aforesaid shall be held by Mortgagee without liability for interest
thereon and may be applied by Mortgagee as provided in the Credit Agreement
or the Interest Rate Agreements or, to the extent not so provided, as
Mortgagee may deem appropriate toward payment of any of the Obligations in
such order or manner as Mortgagee may elect.
II. The Mortgagee, with or without entry, personally or by
their agents or attorneys, may sell the Mortgaged Property and all estate,
right, title, interest, claim and demand therein and right of redemption
thereof at one or more private or public sales, as an entirety or in parcels
and at such times and places and upon such terms as may be specified in the
notice or notices of sale to be given to Mortgagor or as may be required by
law. Any number of sales may be conducted from time to time. The power of
sale shall not be exhausted by any one or more such sales as to any part of
the Mortgaged Property remaining unsold, but shall continue unimpaired until
all of the Mortgaged Property shall have been sold or all of the Obligations
shall have been satisfied in full. In addition, as to the Mortgaged
Property, the Mortgagee will have the statutory power of sale, if any, as
may be provided by the law of the state in which such Mortgaged Property is
located. This Mortgage is made upon the statutory conditions provided for
by the laws of the states in which the Mortgaged Property is located.
III. The Mortgagee may take all reasonable steps to protect
and enforce its rights and remedies provided hereby or by applicable law,
whether by action, suit or proceeding in equity or at law (for the complete
or partial foreclosure hereof or in aid of the execution of any power herein
granted or for the enforcement of any other appropriate legal or equitable
remedy) or otherwise as the Mortgagee may deem most effectual to protect and
enforce the same.
SECTION 3.02. Sale of Property; Application of Proceeds. (a)
In connection with any sale under this Article, the Mortgagee may postpone
the sale of the Mortgaged Property by public announcement at the time and
place of such sale, and from time to time thereafter may further postpone
such sale by public announcement made at the time of sale fixed by the
preceding postponement.
(b) Upon the completion of any sale made by the Mortgagee under
or by virtue of this Article, the Mortgagee shall execute and deliver to the
purchaser good and sufficient deeds and other instruments conveying,
assigning and transferring all their estate, right, title and interest in
and to the property and rights so sold. The Mortgagee is hereby irrevocably
appointed the true and lawful attorney of Mortgagor and any subsequent
mortgagor of the Mortgaged Property for the specific purpose of this Section
3.02(b) to make, in its own name or in the name of Mortgagor, all necessary
conveyances, assignments, transfers and deliveries of the property and
rights so sold, and for that purpose the Mortgagee may execute all necessary
deeds and instruments of assignment and transfer and may substitute persons
with like power, Mortgagor or any subsequent mortgagor of the Mortgaged
Property hereby ratifying and confirming all that their said attorneys or
such substitutes shall lawfully do by virtue hereof. Nevertheless,
Mortgagor or any subsequent mortgagor of the Mortgaged Property, if so
requested in writing by the Mortgagee, shall ratify and confirm any such
sale by executing and delivering to the Mortgagee or to such purchasers any
instrument which, in the reasonable judgment of the Mortgagee is suitable or
appropriate therefor. Any such sale made under or by virtue of this
Article, whether made under the power of sale herein granted or under or by
virtue of judicial proceedings or of a judgment or decree of foreclosure and
sale, shall operate to divest all the estate, right, title, interest, claim
and demand whatsoever, whether at law or in equity, of Mortgagor in and to
the property and rights so sold, and shall be a perpetual bar at law and in
equity against Mortgagor and its successors and assigns and any and all
persons who claim or may claim the same from, through or under Mortgagor or
its successors or assigns.
(c) The receipt of the Mortgagee for the purchase money paid as
a result of any such sale shall be a sufficient discharge therefor to any
purchaser of the Mortgaged Property sold as aforesaid; and no such purchaser
or his representatives, grantees or assigns, after paying such purchase
money and receiving such receipt, shall be bound to see to the application
of such purchase money upon or for any purpose hereof, shall be answerable
in any manner whatsoever for any loss, misapplication or nonapplication of
any of such purchase money or shall be bound to inquire as to the
authorization, necessity, expediency or regularity of any such sale.
(d) The purchase money or proceeds of any sale made under or by
virtue of this Article, together with any other sums which then may be held
by the Mortgagee as part of the Mortgaged Property or the proceeds thereof,
shall, unless otherwise required by applicable law, be applied: first, to
the payment of the costs and expenses of such sale, including reasonable
compensation for the services of the Mortgagee's agents and counsel, and of
any judicial proceeding wherein the same be made; second, to the payment of
the whole amount then owing on the Notes for the payment of accrued and
unpaid interest; third, to the payment of the whole amount then owing on the
Notes for the payment of principal; fourth, to the payment of any other
Obligations; and fifth, to the payment of the surplus, if any, to Mortgagor
(or upon its written order) or to whomsoever shall lawfully be entitled
thereto, free of the lien hereof.
SECTION 3.03 Purchase by the Mortgagee. Upon any sale made
under or by virtue of this Article (whether made under any power of sale
herein granted or under or by virtue of any judicial proceedings or of a
judgment or decree of foreclosure and sale), the Mortgagee, may (but shall
not be obligated to) bid for and acquire the Mortgaged Property or any part
thereof, provided that such acquisition shall not expose the Mortgagee to
criminal liability or any other liability for which the Mortgagee has not
been indemnified hereunder or otherwise in a manner acceptable to the
Mortgagee, and in lieu of paying cash therefor may make settlement for the
purchase price by crediting upon the indebtedness of Mortgagor secured by
this Mortgage the net proceeds of sale after deduction of all costs,
expenses, compensation and other charges to be paid therefrom as herein
provided. The person making such sale shall accept such settlement without
requiring the production of the Notes, or any other evidence of the
Obligations, and without such production there shall be deemed credited
thereon the net proceeds of sale ascertained and established as aforesaid.
The Mortgagee, upon so acquiring the Mortgaged Property or any part thereof,
shall be entitled to hold, deal with and sell the same in any manner
permitted by applicable laws.
SECTION 3.04 Receivers. During the continuance of any Event of
Default, immediately upon the commencement of any legal proceeding by the
Mortgagee, for or in aid of the enforcement of the Notes or this Mortgage,
or any of the Obligations and without regard to the adequacy of the security
or the Mortgaged Property, the Mortgagee shall be entitled to the
appointment of a receiver or receivers of the Mortgaged Property and of all
the earnings, revenues, rents, issues, profits and income thereof, and
Mortgagor hereby consents to any such appointment.
SECTION 3.05 Remedies Cumulative. No remedy herein shall be
exclusive of any other remedy or remedies, and each such remedy shall be
cumulative and in addition to every other remedy given hereunder or now or
hereafter existing at law or in equity; and every power and remedy of the
Mortgagee hereunder may be exercised from time to time and as often as may
be deemed expedient by the Mortgagee. No delay or omission of the Mortgagee
to exercise any right or power accruing upon an Event of Default shall
impair any such right or power or shall be construed to be a waiver of any
such Event of Default or an acquiescence therein. Acceptance by the
Mortgagee of a partial payment of any obligation shall not be construed as a
waiver of payment thereof in full.
SECTION 3.06 Waiver of Rights. To the extent permitted by
applicable law, Mortgagor agrees that it will not at any time or in any
manner whatever claim or take any benefit of any stay, extension or
moratorium law which may affect the terms of this Mortgage; nor, prior to or
after any such sale, claim or exercise any right to redeem the property so
sold or to be sold or any part thereof; and Mortgagor hereby expressly
waives all benefit or advantage of any such law and covenants not to hinder,
delay or impede the execution by the Mortgagee of any power or remedy herein
granted or available at law or in equity, but to suffer and permit the
execution of every power and remedy as though no such law existed. To the
extent permitted by applicable law, Mortgagor waives all right to have the
Mortgaged Property marshalled upon any foreclosure hereof.
ARTICLE FOUR
Security Agreement
SECTION 4.01 Security Agreement. (a) From the date of its
recording, this Mortgage shall be effective as a security agreement and
financing statement by and between Mortgagor, as debtor, and the Mortgagee,
as secured party, filed as a security agreement and financing statement
pursuant to the Uniform Commercial Code, as enacted in each state in which a
Property is located, with respect to all goods constituting part of the
Mortgaged Property which are or are to become fixtures related to the
Premises and Improvements described herein and with respect to all other
property included within the Mortgaged Property that may be subject to a
security interest under Article 9 of the Uniform Commercial Code as enacted
in the applicable states, including all additions to, substitutions for, and
proceeds of such goods, fixtures and other property. For this purpose, the
mailing address of the debtor is the address of Mortgagor set forth in
Section 5.01 below; the address of the secured party from which information
concerning the security interest may be obtained is the address of the
Mortgagee set forth in Section 5.01 below; and the record owner of the
Premises is the Mortgagor as identified in the initial paragraph of this
Mortgage. This Mortgage covers goods (as defined under the Uniform
Commercial Code, as enacted in each state in which a property included
within the Premises is located) which are or are to become fixtures.
(b) Mortgagor hereby grants the Mortgagee a security interest
in such portions of the Mortgaged Property which may be subject to a
security interest under Article 9 of the Uniform Commercial Code, as enacted
in each jurisdiction in which a property included within the Premises is
located, and in all additions thereto, substitutions therefor and proceeds
thereof, for the purpose of securing all indebtedness now or hereafter
secured by this Mortgage. Mortgagor agrees to execute and deliver financing
and continuation statements covering the Mortgaged Property from time to
time to perfect and continue the perfection of the Mortgagee's lien or
security interest with respect to the Mortgaged Property.
(c) This Mortgage constitutes a financing statement filed as a
fixture filing under the Uniform Commercial Code as enacted in each
jurisdiction in which a property included within the Premises are located,
to be filed and indexed in the applicable real estate records of the county
in which such Premises are located with respect to any and all fixtures
included within the term "Mortgaged Property" and with respect to any goods
or other personal property that may now be or hereafter become such a
fixture. PARTS OF THE COLLATERAL ARE, OR ARE TO BECOME, FIXTURES ON
THE
REAL ESTATE.
(d) The information contained in this Section is provided in
order that this Mortgage shall comply with the requirements of the Uniform
Commercial Code, as enacted in each state in which a property included
within the Premises is located, for instruments to be filed as financing
statements. Mortgagor's identity and principal place of business is set
forth on page one above.
ARTICLE FIVE
Miscellaneous
SECTION 5.01 Notices and Other Communications to the Mortgagee
and Mortgagor. Any request, demand, authorization, direction, notice,
consent, waiver or other document provided or permitted by this Mortgage to
be made upon, given or furnished to, or filed with,
(1) the Mortgagee by Mortgagor shall be sufficient for
every purpose hereunder if made, given, furnished or filed in
writing with the Mortgagee at the following addresses, or to
such other addresses as the Mortgagee may specify, by notice:
The Bank of New York
One Wall Street
New York, New York 10286
Attention:William A. O'Daly
Assistant Treasurer
Telecopy: (212) 635-1208
(2) Mortgagor by the Mortgagee shall be sufficient for
every purpose hereunder (unless otherwise herein expressly
provided) if in writing and delivered to Mortgagor at the
following address:
National Propane Corporation
1101 Second Avenue, S.E.
Cedar Rapids, Iowa 52403
Attention:Terry D. Weikel
Senior Vice President and
Chief Financial Officer
Telecopy: (319) 365-3672
with a copy to:
Triarc Companies, Inc.
900 Third Avenue
New York, N.Y. 10022
Attention:Brian L. Schorr, Executive Vice
President & General Counsel
Telecopy: (212)230-3216
SECTION 5.02 Effective Notice Delivery. All notices, offers,
acceptances, rejections, consents, requests and other communications
hereunder shall be in writing and shall be deemed to have been given (i)
when delivered by hand, (ii) five Business Days after being sent by first
class registered or certified mail, postage prepaid, return receipt
requested, (iii) when sent by telecopier (provided that such notice is
legible and an original copy of such notice is also subsequently sent by
overnight courier in the manner described in the following clause (iv)
within two Business Days thereafter), or (iv) one Business Day after being
sent Federal Express or any other nationally recognized overnight courier,
in each case addressed as aforesaid. In case by reason of the suspension of
regular mail service or by reason of any other cause it shall be
impracticable to give such notice by mail, then during the pendency of such
suspension or other cause, such notification as shall be made with the
approval of the Mortgagee shall constitute a sufficient notification for
every purpose hereunder.
SECTION 5.03 Effect of Headings. The Article and Section
headings herein are for convenience only and shall not affect the
construction hereof.
SECTION 5.04 Successors and Assigns. The provisions of this
Mortgage shall bind and inure to the benefit of the parties hereto and their
respective successors and assigns, whether so expressed or not.
SECTION 5.05 Separability Clause. In the case that any
provision in this Mortgage shall be deemed invalid, illegal or
unenforceable, the validity, legality and enforceability of such provision
in other contexts, and the remaining provisions hereof, shall not in any way
be affected or impaired thereby.
SECTION 5.06 APPLICABLE LAW. THIS MORTGAGE SHALL BE GOVERNED
BY AND CONSTRUED AND ENFORCED AS TO ANY PORTION OF THE
MORTGAGED PROPERTY BY
THE LAWS OF THE JURISDICTION IN WHICH THE SAME MAY BE LOCATED.
SECTION 5.07 Satisfaction. If and when the Obligations secured
hereby shall have been satisfied in full, then this Mortgage shall become
null and void, and the Mortgagee, at the request and expense of Mortgagor,
shall issue, execute and deliver such instruments as may be necessary and
appropriate for the release of the lien of this Mortgage.
SECTION 5.08 Counterparts. This Mortgage may be executed in
counterparts. All counterparts shall constitute one instrument.
SECTION 5.09 Schedules; Addenda. Immediately following are
Schedules A and B referred to in this Mortgage and Addenda 1-5 which
Schedules and Addenda are hereby incorporated by reference herein.
SECTION 5.10 Limitations of Liability. The obligations of the
Mortgagor under this Mortgage shall not be enforced by personal judgment (or
any other action or proceeding not required for the foreclosure of this
Mortgage) against any shareholder, officer, director, principal, agent or
employee of the Mortgagor. Nevertheless, the foregoing limitations of
liability shall not affect, impair or restrict the validity or
enforceability, or constitute a discharge, release or waiver, of this
Mortgage or the Obligations.
[Sections 5.11, 5.12 and 5.13 in New York Mortgage only]
[SECTION 5.11 Lien Law. This Mortgage is made subject to
Section 13 of the New York Lien Law and, in compliance with Section 13 of
the New York Lien Law, the Mortgagor will receive and hold the right to
receive the consideration for the Notes paid to or received by the Mortgagor
as a trust fund to be applied first for the purpose of paying any unpaid
costs of the Improvements before any part of the same is used for any other
purpose. The Mortgagor will also indemnify and hold the Mortgagee harmless
against all loss, liability, claim, cost or expense arising out of or
relating to any proceedings instituted by any complainant alleging a
violation by the Mortgagor of Article 3-A of the New York Lien Law.
SECTION 5.12 No Residential Units. This Mortgage does not
encumber real property principally improved or to be improved by one or more
structures containing in the aggregate six (6) or fewer residential dwelling
units having their own separate cooking facilities.
SECTION 5.13 Maximum Principal Indebtedness. For the purpose
of Section 253 of the New York Tax Law, the maximum amount of the principal
indebtedness secured by this Mortgage at the time of its execution or that
under any contingency may hereafter be so secured and for which this
Mortgage may be foreclosed or otherwise enforced against the Mortgaged
Property is $2,300,000.]
------------------------
IN WITNESS WHEREOF, Mortgagor and the Mortgagee have caused this
Mortgage to be duly executed and delivered as of the day and year first
above written.
Signed and acknowledged NATIONAL PROPANE CORPORATION,
in the presence of the a Delaware corporation, as
following two witnesses Mortgagor
as to each signature:
(i) By:_____________________
[ ],
------------------
Witnesses as to (i): [ ]
------------------
-----------------------
(witness signature)
-----------------------
(printed name)
and
-----------------------
(witness signature)
-----------------------
(printed name)
(ii) By:_____________________
[ ],
------------------
Witnesses as to (ii): [ ]
------------------
-----------------------
(witness signature)
-----------------------
(printed name)
and
-----------------------
(witness signature)
-----------------------
(printed name)
THE BANK OF NEW YORK, a
New York banking corporation,
in its individual capacity,
and as Administrative Agent for
the Banks
(iii) By:_____________________
[ ],
------------------
Witnesses as to (iii): [ ]
------------------
-----------------------
(witness signature)
-----------------------
(printed name)
and
-----------------------
(witness signature)
-----------------------
(printed name)
STATE OF NEW YORK )
: ss.: Allstate Acknowledgment
COUNTY OF NEW YORK )
Know all men by these presents that before me, the below-named
Notary Public in and for the State and County named above duly commissioned
to take acknowledgments, there personally appeared __________________ and
________________, each of whom is personally known to me to be a person
named in and who signed the legal instrument to which this acknowledgment is
attached and which was produced to me in the State and County aforesaid, and
being by me first duly sworn each did acknowledge before me, depose and say
to me that he is, respectively, a ___________________ and _________________
of NATIONAL PROPANE CORPORATION, a Delaware corporation, named as one of the
parties to the aforementioned legal instrument; that he knows the seal of
such corporation; that the seal imprinted on the legal instrument to which
this acknowledgment is attached is an imprint of the true corporate seal of
said corporation; that after being duly informed of the contents and import
of such legal instrument he had signed and caused the seal of such
corporation to be imprinted on such legal instrument as the officer of such
corporation indicated above; that he had signed and sealed the same in the
name of and on behalf of such corporation by the authority, order and
resolution of its Board of Directors; that he had signed his name thereto on
behalf of said corporation by like order; that the execution of said legal
instrument was the free and voluntary act and deed of said corporation for
the consideration, purposes, and uses set forth in such legal instrument;
that he had delivered such legal instrument to the other parties thereto as
such; and that on behalf of said corporation he had received a true copy of
such legal instrument without charge.
IN WITNESS WHEREOF, I have signed and imprinted my official
notarial seal on this acknowledgment in the State and County named above on
the _____ day of __________, 1994.
My commission expires:
_________________________
Notary Public
Print Name: _____________
STATE OF NEW YORK )
: ss.: Allstate Acknowledgment
COUNTY OF NEW YORK )
Know all men by these presents that before me, the below-named
Notary Public in and for the State and County named above duly commissioned
to take acknowledgments, there personally appeared ________________ and
__________________, each of whom is personally known to me to be a person
named in and who signed the legal instrument to which this acknowledgment is
attached and which was produced to me in the State and County aforesaid, and
being by me first duly sworn each did acknowledge before me, depose and say
to me that he is, respectively, _________________ and
________________________ of THE BANK OF NEW YORK, a New York banking
corporation, named as one of the parties to the aforementioned legal
instrument; that he knows the seal of said corporation; that the seal
imprinted on the legal instrument to which this acknowledgement is attached
is an imprint of the true seal of said corporation; that after being duly
informed of the contents and import of such legal instrument he had signed
and caused the seal of such corporation to be imprinted on such legal
instrument as the officer of such corporation indicated above; that he had
signed and sealed the same in the name of and on behalf of such corporation
by the authority, order and resolution of its Board of Directors; that he
had signed his name thereto on behalf of said corporation by like order;
that the execution of said legal instrument was the free and voluntary act
and deed of said corporation for the consideration, purposes, and uses set
forth in such legal instrument; that he had delivered such legal instrument
to the other parties thereto as such; and that on behalf of said corporation
he had received a true copy of such legal instrument without charge.
IN WITNESS WHEREOF, I have signed and imprinted my official
notarial seal on this acknowledgment in the State and County named above on
the _____ day of __________, 1994.
My commission expires:
_________________________
Notary Public
Print Name: _____________
Schedule A
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Land Description
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PAGE
Schedule B
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Permitted Encumbrances
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Addendum No. 1
SPECIAL CONNECTICUT PROVISIONS
The following special provisions shall apply to this Mortgage in
the State of Connecticut:
Addendum No. 2
SPECIAL IOWA PROVISIONS
The following special provisions shall apply to this Mortgage in
the State of Iowa:
Addendum No. 3
SPECIAL MASSACHUSETTS PROVISIONS
The following special provisions shall apply to this Mortgage in
the State of Massachusetts:
Addendum No. 4
SPECIAL MICHIGAN PROVISIONS
The following special provisions shall apply to this Mortgage in
the State of Michigan:
Addendum No. 5
SPECIAL MINNESOTA PROVISIONS
The following special provisions shall apply to this Mortgage in
the State of Minnesota:
Addendum No. 6
SPECIAL WISCONSIN PROVISIONS
The following special provisions shall apply to this Mortgage in
the State of Wisconsin:
Exhibit D
PLEDGE AND SECURITY AGREEMENT, dated as of October 7, 1994 (this
"Agreement"), between TRIARC COMPANIES, INC., a Delaware corporation
("Pledgor"), and THE BANK OF NEW YORK, as agent for the Creditors (as
hereinafter defined) (the "Agent" or "Secured Party").
WITNESSETH:
WHEREAS, the Pledgor owns 100% of the outstanding common stock,
par value $1.00 per share ("Common Stock"), of National Propane Corporation,
a Delaware corporation (the "Borrower"); and
WHEREAS, pursuant to the Revolving Credit and Term Loan
Agreement, dated as of October 7, 1994 (as amended, supplemented, modified
or extended from time to time, the "Credit Agreement"), among the Company,
the Agent, The First National Bank of Boston and Internationale Nederlanden
(U.S.) Capital Corporation, as Co-Agents, and the Lenders (as defined
therein), the Lenders have agreed to extend credit to the Company;
WHEREAS, one or more of the Lenders and/or certain affiliates of
the Lenders may enter into Interest Rate Agreements (as defined in the
Credit Agreement) with the Borrower to hedge interest payable on the Loans
(as defined in the Agreement) (such affiliates together with the Agent and
the Lenders being collectively referred to herein as the "Creditors"); and
WHEREAS, the extension of credit to the Borrower pursuant to the
Agreement and the execution and delivery of the Interest Rate Agreements (as
used in this Agreement, the term "Interest Rate Agreements" shall refer to
such agreements to which a Creditor is a counterparty entered into in
connection with the Credit Agreement) are conditioned upon the execution and
delivery by Pledgor of this Agreement to secure the due and punctual payment
of the obligations of the Borrower to the Creditors as described below;
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Grant of Security Interest. For value received,
Pledgor hereby grants to the Secured Party for its benefit and for the
ratable benefit of the Creditors and their successors and assigns, as
security for all present and future obligations and liabilities of all kinds
of the Borrower to the Creditors based on, arising out of, or otherwise
relating to the Credit Documents (as defined in the Agreement) or any
Interest Rate Agreement, whether for principal, interest, fees, expenses or
otherwise, and all obligations of the Borrower now or hereafter existing
hereunder, (collectively referred to as the "Obligations"), a security
interest in and to, collateral assignment of and first lien upon Pledgor's
right, title and interest in and to the following described property
(collectively referred to as the "Collateral"):
(a) 1,000 shares of Common Stock, which are herewith delivered
to Secured Party by Pledgor to be held as Collateral hereunder; and
all shares of Common Stock hereafter acquired by Pledgor, which will
be delivered to Secured Party to be held as Collateral hereunder
promptly upon acquisition thereof.
together with
(b) any other securities, certificates of deposit or other
instruments lodged with, or delivered to, the Secured Party or its
nominee as security for the Obligations or which may be transferred
to, or held for the account of, Secured Party on the books of a
financial intermediary or central depository,
together with
(c) the products and proceeds of the foregoing and any
substitutions or replacements therefor.
Section 2. Definitions. Except as otherwise expressly defined
herein, all terms used herein which are defined in the Uniform Commercial
Code as in effect from time to time in the State of New York (the "UCC")
have the same meaning herein as in the UCC.
Section 3. Continuing Agreement. This is a continuing
agreement and shall remain in full force and effect and shall be binding
upon Pledgor, its successors and assigns until such time as all Obligations
have been paid in full.
Section 4. Representations and Warranties. Pledgor represents
and warrants, and so long as this Agreement is in effect, shall be deemed
continuously to represent and warrant, that:
(a) Pledgor is the owner of the Collateral, free of all
security interests or other encumbrances, except the security interest
created by this Agreement.
(b) Pledgor is authorized to enter into this Agreement.
(c) This Agreement and the pledge of the Collateral hereunder
do not violate or contravene the terms of Pledgor's or the Borrower's
charter documents, by-laws or any agreement or instrument binding on
Pledgor, the Borrower or its respective property.
Section 5. Rights of the Secured Party. Upon the occurrence of
an Event of Default under the Credit Agreement and during the continuance of
such Event of Default, the Secured Party may from time to time:
(a) Transfer any of the Collateral into the name of the Secured
Party or its nominee.
(b) Notify parties obligated on any of the Collateral to make
payment to the Secured Party of any amounts due or to become due
thereunder.
(c) Enforce collection of any of the Collateral.
(d) Take possession or control of any proceeds of the
Collateral.
Upon the occurrence of such an Event of Default and during the
continuance thereof, Pledgor will not demand or receive any income from or
interest on the Collateral, and if Pledgor receives any such income or
interest without any demand by it, the same shall be held by Pledgor in
trust for the Secured Party in the same form as received, shall not be
commingled with any assets of Pledgor and shall be delivered to the Secured
Party in the form as received, properly endorsed to permit collection, not
later than the next business day following the day of its receipt.
Section 6. Further Assurances. Pledgor agrees to take such
actions and to execute such stock or bond powers and such other or different
writings as the Secured Party may request (and irrevocably authorizes the
Secured Party to execute such writings as Pledgor's agent and attorney-in-
fact) further to perfect, confirm and assure the Secured Party's security
interest in the Collateral and to assist the Secured Party's realization
thereon.
Section 7. Rights and Remedies Upon Default. If an Event of
Default under the Credit Agreement shall have occurred and be continuing the
Secured Party's rights and remedies with respect to the Collateral shall be
those of a secured party under the UCC and under any other applicable law,
as the same may from time to time be in effect, in addition to those rights
granted herein. Without in any way requiring notice to be given in the
following time and manner, Pledgor agrees that any notice by the Secured
Party of sale, disposition or other intended action hereunder in connection
therewith, whether required by the UCC or otherwise, shall constitute
reasonable notice to Pledgor if such notice is mailed by regular or
certified mail, postage prepaid, at least ten days prior to such action, to
Pledgor's address specified in Section 9.
Section 8. Application of Proceeds. (a) In the event the
Secured Party sells or otherwise disposes of the Collateral in the course of
exercising the remedies provided for in Section (6) hereof, any amounts
held, realized or received by the Agent pursuant to the provisions hereof,
including the proceeds of the sale of any of the Collateral or any part
thereof, shall be applied by Secured Party first toward the payment of any
costs and expenses incurred by the Secured Party in enforcing this
Agreement, in realizing on or protecting any Collateral and in enforcing or
collecting any Obligations, including attorneys' fees, and then toward
payment of the Obligations in such order or manner as provided in the Credit
Agreement or, to the extent not so provided, as the Agent may elect.
(b) Liability for Deficiency. This Security Agreement shall
not be construed as relieving Pledgor from full liability under the
Guarantee (as defined in the Credit Agreement).
Section 9. Notices. Any communications, notice or demand to be
given hereunder shall be duly given if in writing (including communications
transmitted by telecopier) and delivered, mailed or communicated:
If to Pledgor, at:
Triarc Companies, Inc.
900 Third Avenue
New York, New York 10022
Attention:Brian L. Schorr, Esq.
Executive Vice President &
General Counsel
Telecopy: (212) 230-3216
If to Secured Party, at:
The Bank of New York
One Wall Street
New York, New York 10286
Attention:William A. O'Daly
Assistant Treasurer
Telecopy: (212) 635-1208
or, as to any party, to such other address as shall be designated by such
party in a prior written notice to each other party similarly given.
Section 10. No Duty to Preserve Collateral. Secured Party
shall not be obligated to take any steps necessary to preserve any rights in
the Collateral or in any security therefor against any other party, which
obligation Pledgor hereby assumes.
Section 11. No Waiver. No delay or omission on the part of
Secured Party in exercising any right hereunder shall operate as a waiver of
any such right or any other right. A waiver on any one or more occasions
shall not be construed as a bar to or waiver of any right or remedy on any
future occasion. The remedies of Secured Party hereunder are cumulative,
and the exercise of any one or more of the remedies provided for herein
shall not be construed as an election or as a waiver of any of the other
remedies of Secured Party provided for herein or existing by law or
otherwise.
Section 12. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK, EXCEPT
AS REQUIRED BY MANDATORY PROVISIONS OF LAW AND EXCEPT TO THE
EXTENT THAT THE
VALIDITY OR PERFECTION OF ANY OF THE SECURITY INTERESTS HEREUNDER,
OR
REMEDIES HEREUNDER, ARE GOVERNED BY THE LAWS OF A JURISDICTION
OTHER THAN
THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first above written.
TRIARC COMPANIES, INC.
as Pledgor
By: ______________________
Name:
Title:
THE BANK OF NEW YORK
as Agent
By: _______________________
Name:
Title
Exhibit E
SECURITY AGREEMENT, dated as of October 7, 1994 (this "Security
Agreement"), between NATIONAL PROPANE CORPORATION, a Delaware corporation
("Debtor"), and THE BANK OF NEW YORK, as agent for the Creditors (as
hereinafter defined) (in such capacity, the "Agent" or "Secured Party").
WITNESSETH:
WHEREAS, pursuant to the Revolving Credit and Term Loan
Agreement, dated as of October 7, 1994 (as hereafter amended, the "Credit
Agreement"), among Debtor, the Agent, The First National Bank of Boston and
Internationale Nederlanden (U.S.) Capital Corporation, as Co-Agents, and the
Lenders (as defined therein), the Lenders have agreed to extend credit to
Debtor;
WHEREAS, one or more of the Lenders and/or certain affiliates of
the Lenders may enter into Interest Rate Agreements (as defined in the
Credit Agreement) with Debtor to hedge interest payable on the Loans (as
defined in the Credit Agreement) (such affiliates together with the Agent
and the Lenders being collectively referred to herein as the "Creditors");
and
WHEREAS, the extension of credit to Debtor pursuant to the
Credit Agreement and the execution and delivery of the Interest Rate
Agreements (as used in this Security Agreement, the term "Interest Rate
Agreements" shall refer to such agreements to which a Creditor is a
counterparty entered into in connection with the Credit Agreement) are
conditioned upon the execution and delivery by Debtor of this Security
Agreement to secure the due and punctual payment of the obligations of
Debtor to the Creditors as described below;
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Grant of Security Interest. (a) For value
received, Debtor hereby grants to Secured Party for its benefit and for the
ratable benefit of the Creditors and their successors and assigns, as
security for all present and future obligations and liabilities of all kinds
of Debtor to the Creditors based on, arising out of, or otherwise relating
to the Credit Documents (as defined in the Credit Agreement) or any Interest
Rate Agreement, whether for principal, interest, fees, expenses or
otherwise, and all obligations of Debtor now or hereafter existing hereunder
(collectively referred to as the "Obligations"), a security interest in and
to, collateral assignment of and general first lien upon and right of set-
off against, all of Debtor's right, title and interest in and to the
following described property (collectively referred to as the "Collateral"):
(i)Any and all of Debtor's Tangibles (as that term is
defined below);
(ii) Any and all of Debtor's Intangibles (as that term is
defined below); and
(iii) All products, proceeds and accessions of any of the
foregoing, including (i) any and all proceeds of any insurance,
indemnity, warranty or guaranty payable to Debtor from time to
time with respect to any of the Collateral, (ii) any and all
payments (in any form) made or due and payable to Debtor from
time to time in connection with any requisition, confiscation,
condemnation, seizure or forfeiture of all or any part of the
Collateral by any governmental authority and, (iii) any and all
other amounts from time to time paid or payable under or in
connection with any of the Collateral.
(b) The term "Intangibles" as used herein includes and shall be
deemed to mean "accounts", "instruments", "documents", "chattel paper",
"drafts", "checks", and "general intangibles" and each of them, as the
foregoing terms are defined in the Uniform Commercial Code, as in effect in
the State of New York (the "UCC"). Intangibles shall include all rights of
Debtor under any contract, all interests in partnerships and joint ventures,
all customer lists, trademarks, patents, rights in intellectual property,
licenses, permits, copyrights, trade secrets, proprietary or confidential
information, inventions (whether patented or patentable or not) and
technical information, procedures, designs, knowledge, know-how, software,
databases, data, expertise, materials and records, goodwill and rights of
indemnification.
Intangibles shall also include securities from time to time
delivered and pledged to the Agent and any other intangible property of
Debtor or in which Debtor may have an interest now or hereafter in the
possession or control of any Creditor, or of any third party acting on its
behalf, including any deposit or other balance to the credit of Debtor on
the books of any Creditor, or any third party acting on its behalf, regard-
less of whether for the express purpose of being used by such Creditor as
collateral security or for safekeeping or for any other or different
purposes, including property in transit or covered or affected by documents
in the possession or control of the Creditor.
(c) The term "Tangibles" as used herein includes and shall be
deemed to mean "inventory" and "equipment" as defined in the UCC and all
goods and all other tangible personal property now owned or hereafter
acquired by Debtor.
(d) Terms not expressly defined herein which are defined in the
UCC have the same meaning herein as in the UCC.
Section 2. Warranties, Covenants and Agreements of Debtor.
Debtor warrants, covenants and agrees that:
(a) Except for the security interest granted hereby and except
as permitted by the agreements under which Obligations are incurred, Debtor
is, and as to Collateral acquired after the date hereof, Debtor shall be at
the time of acquisition, the owner and holder of, the Collateral free from
any Lien (as defined in the Credit Agreement) other than Liens permitted
under the Credit Agreement, and covenants that at all times the Collateral
will be and remain free of all such Liens not otherwise permitted pursuant
to the terms of the Credit Agreement; Debtor has full power and lawful
authority to grant to the Agent on behalf of itself and the other Creditors
a first and prior security interest in the Collateral as herein provided;
the execution and delivery and the performance hereof are not in contraven-
tion of any charter or by-law provision or of any indenture, material
agreement or undertaking to which Debtor is a party or by which Debtor or
its property are bound; and Debtor will defend the Collateral against all
claims and demands of all persons at any time claiming the same or any
interest therein; any officer, agent or representative acting for or on
behalf of Debtor in connection with this Security Agreement or any aspect
hereof, or entering into or executing this Security Agreement or any
financing statement on behalf of Debtor, has been duly authorized so to do,
and is fully empowered to act for and represent Debtor in connection with
this Security Agreement and all matters related thereto or in connection
therewith.
(b) As long as any amount remains unpaid on any of the
Obligations or any additional borrowings may be made by Debtor under any
agreements entered into in connection with the Obligations, including the
Credit Agreement, except as expressly permitted by any such agreements, (i)
Debtor will not enter into or execute any security agreement or any
financing statement covering the Collateral, other than those security
agreements and financing statements in favor of Secured Party hereunder, and
(ii) there will not be on file in any public office any financing statement
or statements (or any documents or papers filed as such) covering the
Collateral, other than financing statements in favor of Secured Party
hereunder, unless otherwise permitted pursuant to the terms of the Credit
Agreement or the prior written consent of Secured Party shall have been
obtained.
(iii) Debtor authorizes Secured Party to file, in jurisdictions where
this authorization will be given effect, a financing statement signed only
by Secured Party covering the Collateral, and hereby appoints Secured Party
as Debtor's attorney-in-fact to sign and file any such financing statements
covering the Collateral. At the request of Secured Party, Debtor will join
Secured Party in executing such documents as Secured Party may determine
from time to time to be necessary or desirable under provisions of any
applicable Uniform Commercial Code in effect where the Collateral is located
or where Debtor conducts business; without limiting the generality of the
foregoing, Debtor agrees to join Secured Party, at Secured Party's request,
in executing one or more financing statements in form satisfactory to
Secured Party, and Debtor will pay the costs of filing or recording the
same, or of filing or recording this Security Agreement, in all public
offices at any time and from time to time, whenever filing or recording of
any such financing statement or of this Security Agreement is deemed by
Secured Party to be necessary or desirable. In connection with the
foregoing, it is agreed and understood between the parties hereto (and
Secured Party is hereby authorized to carry out and implement this agreement
and understanding and Debtor hereby agrees to pay the reasonable costs
thereof) that Secured Party may, at any time or times, file as a financing
statement any counterpart, copy, or reproduction of this Security Agreement.
(c) Except as specifically otherwise permitted or provided in
the Credit Documents, Debtor's Tangibles shall remain in Debtor's possession
and control at all times at Debtor's risk of loss, and are now kept and,
except for inventory sold in the ordinary course or tanks leased to
customers of Debtor in the ordinary course, at all times shall be kept at
the addresses and locations set forth on Schedule 1 hereto. If Debtor is
using or will use all or any part of the advances made, obligations
incurred, or credit extended by any of the Creditors to acquire rights in,
possession of, or use of Tangibles, then Debtor agrees that, as promptly as
reasonably practicable after Debtor first receives possession thereof, such
Tangibles will be brought to and kept at one of the addresses and locations
set forth on Schedule 1 hereto (as revised pursuant to Section 2(d)).
(d) Debtor will notify Secured Party of its intention to make
any change in any of the addresses or locations set forth on Schedule 1
hereto and of any new addresses or locations where Tangibles are or may be
kept as promptly as reasonably practicable prior to making any such change,
and Debtor will not remove (except for inventory sold in the ordinary course
or tanks leased to customers of Debtor in the ordinary course) the
Tangibles, or any part thereof, from the addresses and locations described
and specified above without the prior written consent of Secured Party.
(e) With respect to accounts, general intangibles and chattel
paper included in the Collateral, Debtor represents and warrants and agrees
that Debtor's books and records with respect to such Collateral are and will
be kept at Debtor's office located at 1101 Second Avenue S.E., Cedar Rapids,
Iowa 52403, and such address is that of Debtor's chief executive offices;
and Debtor further covenants and agrees that Debtor will not change such
address without first providing at least 30 days prior notice to Secured
Party and filing such new or additional financing statements and making such
other filings or recordings as Secured Party shall deem necessary or
appropriate.
(f) If any certificates of title or similar documents are at
any time issued or outstanding with respect to any of the Collateral, Debtor
will promptly advise Secured Party thereof, and Debtor will promptly cause
the interest of the Creditors to be properly noted thereon, and if any
certificates of title or similar documents are so issued or outstanding at
the time this Security Agreement is executed by or on behalf of Debtor, then
Debtor shall have caused the interest of the Creditors so to have been
properly noted at or before the time of such execution; and Debtor will
further promptly deliver to Secured Party any such certificate of title or
similar document.
(g) Debtor will take all action necessary to maintain and
preserve all security for Debtor's Intangibles at all times as valid,
subsisting and perfected as to all the property affected and covered thereby
and to maintain the priority and validity of the security for the Intang-
ibles as against the rights, claims and interests of all other persons.
Section 3. Special Provisions - Intangibles. (a) Secured
Party shall have the right, exercisable at any time after the occurrence of
an Event of Default under the Credit Agreement and so long as such Event of
Default shall be continuing, to take control of all proceeds of the
Collateral (whether cash proceeds or non-cash proceeds) and to notify any
account debtors, lessees, or other obligors to make payment on any and all
accounts, leases, or obligations directly to Secured Party; and, in such
circumstances, Debtor will upon request of Secured Party likewise notify any
and all such account debtors, lessees or other obligors to make payment
directly to Secured Party. Following the occurrence, and during the
continuance, of an Event of Default under the Credit Agreement, upon demand
by Secured Party, all proceeds of Intangibles (whether cash proceeds or non-
cash proceeds), received by Debtor shall be held in trust by Debtor for the
account of Secured Party, shall not be commingled with any other funds,
accounts, monies or property of Debtor, and shall be forthwith accounted
for, paid over, transmitted and delivered to Secured Party in the form as
received by Debtor promptly upon receipt thereof by Debtor.
(b) At any time after the occurrence of an Event of Default
under the Credit Agreement, and so long as such Event of Default shall be
continuing, Secured Party shall have the right in its own name or in the
name of Debtor to demand, collect, receive, receipt for, sue for, compound
and give acquittance for, any and all amounts due or to become due on the
Intangibles and to endorse the name of Debtor on all checks, drafts,
commercial paper and other instruments given in payment or part payment
thereof, and in its discretion to settle, compromise, prosecute or defend
any action, claim or proceeding with respect thereto which Secured Party may
deem necessary or appropriate to protect and preserve and realize upon the
security interest of, and collateral assignment to, Secured Party in the
Intangibles and the proceeds thereof including, without limitation, the
right to sell, assign, pledge, transfer and make any agreement respecting or
otherwise deal with the Intangibles.
(c) Until an Event of Default occurs under the Credit
Agreement, Debtor shall be entitled to vote any securities included in the
Collateral, to receive all cash distributions thereon to the extent not
otherwise prohibited by the terms of the Credit Agreement or this Security
Agreement and to transfer securities into the name of Secured Party or its
nominee. Debtor covenants and agrees to deliver promptly to Secured Party
all securities or other property of any kind distributed as a dividend or
otherwise with respect to the securities, said additional property to be
held as Collateral hereunder.
Section 4. Special Provisions - Tangibles. (a) Except for
tanks leased to customers of Debtor in the ordinary course, any of Debtor's
Tangibles in the possession of persons other than Debtor must be represented
by documents issued by the person in possession thereof, in form acceptable
to Secured Party, which documents must, upon the request of the Secured
Party, be delivered to Secured Party and must be either negotiable documents
issued in the name of Debtor or non-negotiable documents issued in the name
of Secured Party or on which the security interest of Secured Party has been
noted appropriately by the issuer thereof. Debtor warrants that the
Tangibles described therein will be identified or fungible portions of an
identified mass, and that said documents are and will be subject to no terms
or conditions other than is noted therein or thereon.
(b) After the occurrence of an Event of Default under the
Credit Agreement and so long as such Event of Default shall be continuing,
all proceeds of Debtor's Tangibles, whether cash proceeds or non-cash
proceeds, and including, without limitation, proceeds that constitute
Intangibles or that are included in the Collateral as Intangibles, and
proceeds that represent the proceeds of Intangibles, shall be received and
held by Debtor in trust for Secured Party, shall not be commingled with any
other funds, accounts, monies or property of Debtor, and shall unless
otherwise agreed with the Secured Party be promptly accounted for, paid over
and delivered to Secured Party in the same form as received by Debtor
promptly upon receipt thereof by Debtor.
Section 5. Further Agreements Between Debtor and the Secured
Party. (a) Secured Party shall have no obligation to collect, attempt to
collect, protect or enforce the Collateral or any security therefor, which
Debtor agrees, and undertakes to do at Debtor's expense, but Secured Party
may do so in its discretion at any time after any of the Obligations shall
become due and payable, whether by acceleration or otherwise, and after the
occurrence of an Event of Default under the Credit Agreement and so long as
such Event of Default shall be continuing and at such time Secured Party
shall have the right to take any steps by judicial process or otherwise it
may deem proper to effect the collection of all or any portion of the
Collateral or to insure or otherwise protect or to enforce the Collateral or
any security therefor. All expenses (including, without limitation,
attorneys' fees and expenses) reasonably incurred or paid by Secured Party
or any Creditor in connection with or incident to any such collection or
attempt to collect the Collateral or actions to protect, insure or enforce
the Collateral or any security therefor shall be borne by Debtor or
reimbursed by Debtor to Secured Party or Creditor as the case may be, upon
demand. The proceeds of collection of the Collateral or other proceeds
received by Secured Party as a result of any such actions in collecting or
enforcing or protecting the Collateral shall be held by Secured Party
without liability for interest thereon and may be applied by Secured Party
as provided in the Credit Agreement or the Interest Rate Agreements or, to
the extent not so provided, as Secured Party may deem appropriate toward
payment of any of the Obligations in such order or manner as Secured Party
may elect.
(b) In the event Secured Party shall pay any taxes,
assessments, interest, costs, penalties or expenses incident to or in
connection with the collection of the Collateral or protection or
enforcement of the Collateral or any security therefor, Debtor, upon demand
of Secured Party, shall pay to Secured Party the full amount thereof; and so
long as Secured Party shall be entitled to any such payment, this Security
Agreement shall operate as security therefor as fully and to the same extent
as it operates as security for payment of the other Obligations secured
hereunder, and for the enforcement of such repayment Secured Party shall
have every right and remedy provided hereunder for enforcement of payment of
the Obligations.
Section 6. Remedies. Upon the occurrence of an Event of
Default under the Credit Agreement and so long as such Event of Default
shall be continuing, in addition to any other remedies provided for in any
of the agreements relating to any of the Obligations or available under
applicable law, Secured Party shall have and may exercise with reference to
the Collateral and Obligations any or all of the rights and remedies of a
secured party under the UCC, and as otherwise granted herein or under any
other applicable law or under any other agreement executed by Debtor,
including, without limitation, the right and power to sell, at public or
private sale or sales, or otherwise dispose of, lease or otherwise utilize
the Collateral and any part or parts thereof in any manner authorized or
permitted under the UCC after default by a debtor, and to apply the proceeds
thereof toward payment of any costs and expenses and attorneys' fees and
expenses thereby incurred by Secured Party and toward payment of the
Obligations in such order or manner as provided in the Credit Agreement, or
to the extent not so provided, as Secured Party may elect. Upon the
occurrence of an Event of Default and so long as such Event of Default shall
be continuing, Secured Party may require Debtor to assemble the Collateral
or any security therefor and make it available to Secured Party at a place
to be designated by Secured Party; and Secured Party shall have the right to
take possession of all or any part of the Collateral or any security
therefor and of all books, records, papers and documents of Debtor or in
Debtor's possession or control relating to the Collateral which are not
already in Secured Party's possession, and for such purpose may enter upon
any premises upon which any of the Collateral or any security therefor or
any of said books, records, papers and documents are situated and remove the
same therefrom without any liability for trespass or damages thereby
occasioned. To the extent permitted by law, Debtor expressly waives any
notice of sale or other disposition of the Collateral and all other rights
or remedies of Debtor or formalities prescribed by law relative to sale or
disposition of the Collateral or exercise of any other right or remedy of
Secured Party existing after default hereunder; and to the extent any such
notice is required and cannot be waived, Debtor agrees that if such notice
is given in the manner provided in Section 7(c) hereof at least ten (10)
days before the time of the sale or disposition, such notice shall be deemed
reasonable and shall fully satisfy any requirement for giving of said
notice.
Section 7. General. (a) No Impairment, etc. The execution
and delivery of this Security Agreement in no manner shall impair or affect
any other security (by endorsement or otherwise) for the payment or
performance of the Obligations and no security taken hereafter as security
for payment or performance of the Obligations shall impair in any manner or
affect this Security Agreement, all such present and future additional
security to be considered as cumulative security. Any of the Collateral may
be released from this Security Agreement without altering, varying or
diminishing in any way the force, effect, lien, security interest,
collateral assignment or charge of this Security Agreement as to the
Collateral not expressly released, and this Security Agreement shall
continue as a first and prior lien, security interest, collateral assignment
and charge on all of the Collateral not expressly released until all the
Obligations secured hereby have been paid in full. Any future assignment of
the interest of Debtor in and to any of the Collateral shall not deprive
Secured Party of the right to sell or otherwise dispose of or utilize all or
any part of the Collateral as above provided or necessitate the sale or
disposition thereof in parcels or in severalty.
(b) Liability for Deficiency. This Security Agreement shall
not be construed as relieving Debtor from full liability on the Obligations
and any and all future and other indebtedness secured hereby and for any
deficiency thereon.
(c) Notices. Any communications, notice or demand to be given
hereunder shall be duly given if in writing (including communications
transmitted by telecopier) and delivered, mailed or communicated:
If to Debtor, at:
National Propane Corporation
1101 Second Avenue S.E.
Cedar Rapids, Iowa 53403
Attention:Terry D. Weikel
Senior Vice President &
Chief Financial Officer
Telecopy: (319) 365-3672
With a copy to
Triarc Companies, Inc.
900 Third Avenue
New York, New York 10022
Attention:Brian L. Schorr, Esq.
Executive Vice President &
General Counsel
Telecopy: (212) 230-3216
If to Secured Party, at:
The Bank of New York, as Agent
One Wall Street
New York, New York 10286
Attention:William A. O'Daly
Assistant Treasurer
Telecopy: (212) 635-1208
or, as to any party, to such other address as shall be designated by such
party in a prior written notice to each other party similarly given.
(d) No Duty to Preserve Collateral. Secured Party shall not be
obligated to take any steps necessary to preserve any rights in the
Collateral or in any security therefor against any other party, which
obligation Debtor hereby assumes.
(e) No Waiver. No delay or omission on the part of Secured
Party in exercising any right hereunder shall operate as a waiver of any
such right or any other right. A waiver on any one or more occasions shall
not be construed as a bar to or waiver of any right or remedy on any future
occasion. The remedies of Secured Party hereunder are cumulative, and the
exercise of any one or more of the remedies provided for herein shall not be
construed as an election or as a waiver of any of the other remedies of
Secured Party provided for herein or existing by law or otherwise.
(f) GOVERNING LAW. THIS SECURITY AGREEMENT SHALL BE
GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK,
EXCEPT AS REQUIRED BY MANDATORY PROVISIONS OF LAW AND EXCEPT TO
THE EXTENT
THAT THE VALIDITY OR PERFECTION OF ANY OF THE SECURITY INTERESTS
HEREUNDER,
OR REMEDIES HEREUNDER, ARE GOVERNED BY THE LAWS OF A JURISDICTION
OTHER THAN
THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Security Agreement as of the date first above written.
NATIONAL PROPANE CORPORATION
By: _________________________
Name:
Title:
THE BANK OF NEW YORK, as Agent
By: _________________________
Name:
Title:
Schedule 1
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Locations of Tangibles
-----------------------
[To Be Circulated Under Separate Cover]
Exhibit F
TRADEMARK SECURITY AGREEMENT, dated as of ____________, 199_,
between NATIONAL PROPANE CORPORATION, a Delaware corporation ("Debtor"), and
THE BANK OF NEW YORK (the "Agent"), as agent for the Creditors (in such
capacity, as hereinafter defined).
WITNESSETH:
WHEREAS, pursuant to the Revolving Credit and Term Loan
Agreement, dated as of October 7, 1994 (as amended, supplemented, modified
or extended from time to time, the "Credit Agreement"), among Debtor, the
Agent, The First National Bank of Boston and Internationale Nederlanden
(U.S.) Capital Corporation, as Co-Agents, and the Lenders (as defined
therein), the Lenders have agreed to extend credit to the Debtor;
WHEREAS, one or more of the Lenders and/or certain affiliates of
the Lenders may enter into Interest Rate Agreements (as defined in the
Credit Agreement) with the Debtor to hedge interest payable on the Term
Loans (as defined in the Credit Agreement) (such affiliates, together with
the Agent and the Lender, being collectively referred to herein as the
"Creditors"); and
WHEREAS, the extension of credit to Debtor pursuant to the
Credit Agreement and the execution and delivery of the Interest Rate
Agreements (as used in this Agreement, the term "Interest Rate Agreements"
shall refer to such agreements to which a Creditor is a counterparty entered
into in connection with the Credit Agreement) are conditioned upon the
execution and delivery by Debtor of this agreement to secure the due and
punctual payment of the obligations of Debtor to the Creditors as described
below;
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Grant of Security. Debtor hereby assigns, pledges,
conveys, transfers and grants to the Agent, for its benefit and for the
ratable benefit of the Creditors, a lien on and security interest in the
entire right, title and interest of the Debtor in and to the following,
whether now owned or hereafter acquired (the "Trademark Collateral"):
(a) all trademarks, service marks, trade names, trade dress or
other indicia of trade origin, trademark and service mark
registrations, and applications for trademark or service mark
registrations and any renewals thereof, including, without limitation,
each registration and application identified in Schedule 1 attached
hereto and made a part hereof, and including (i) the right to sue or
otherwise recover for any and all past, present and future
infringements and misappropriations thereof, (ii) all income,
royalties, damages and other payments now and hereafter due and/or
payable with respect thereto (including, without limitation, payments
under all licenses entered into in connection therewith, and damages
and payments for past or future infringements thereof), and (iii) all
rights corresponding thereto throughout the world and all other rights
of any kind whatsoever of the Debtor accruing thereunder or pertaining
thereto, together in each case with the goodwill of the business
connected with the use of, and symbolized by, each such trademark,
service mark, trade name, trade dress or other indicia of trade origin
(the "Trademarks"); and
(b) all license agreements with any other person in connection
with any of the Trademarks or such other person's names or marks,
whether Debtor is a licensor or licensee under any such license
agreement, including, without limitation, the license agreements
listed on Schedule 2 attached hereto and made a part hereof, subject,
in each case, to the terms of such license agreements now or hereafter
owned by the Debtor and now or hereafter covered by such licenses (the
"Licenses").
Section 2. Security for Obligations. This Trademark Security
Agreement secures the payment of all obligations of every kind or character
now or hereafter existing, whether matured or unmatured, contingent or
liquidated, of Debtor under the Credit Documents (as defined in the Credit
Agreement) or any Interest Rate Agreement, whether for principal, interest,
fees, expenses or otherwise, and all obligations of Debtor now or hereafter
existing under this Trademark Security Agreement (all obligations described
in this Section 2 being the "Obligations"). The liens and security
interests granted by this Trademark Security Agreement are granted in
conjunction with the liens and security interests granted to the Agent in
certain other assets of Debtor, as set forth in the other Credit Documents.
Section 3. Representations and Warranties. The Debtor
represents and warrants as follows:
(a) Debtor is the sole, legal and beneficial owner of the
entire right, title and interest in and to the Trademark Collateral
set forth in Schedule 1 free and clear of any Lien (as defined in the
Credit Agreement) other than Liens permitted under the Credit
Agreement. No effective financing statement or other instrument
similar in effect covering all or any part of the Trademark Collateral
is on file in any recording office (including, without limitation, the
United States Patent and Trademark Office), except such as may have
been filed in favor of the Agent relating to this Trademark Security
Agreement or otherwise permitted by the Credit Agreement.
(b) Set forth in Schedule 1 is a complete list of all United
States trademark and service mark registrations, and applications for
United States trademark or service mark registrations, owned by
Debtor. The Debtor owns no United States trademark or service mark
registrations, or applications for United States trademark or service
mark registrations, other than as set forth in Schedule 1. Debtor has
made all filings and recordations necessary to protect and maintain
its interest in the Trademarks set forth in Schedule 1 including
filings and recordings in the United States Patent and Trademark
Office. Set forth in Schedule 2 is a complete list of all Licenses
owned by the Debtor in which Debtor is a licensee with respect to any
United States Trademark.
(c) Each trademark and service mark registration and
application for trademark or service mark registration identified in
Schedule 1 is subsisting and has not been adjudged invalid,
unregisterable or unenforceable, in whole or in part, and is, to the
best of Debtor's knowledge, valid, subsisting, registrable and
enforceable. Each License identified in Schedule 2 is validly
subsisting and has not been adjudged invalid or unenforceable, in
whole or in part, and is, to the best of Debtor's knowledge, valid and
enforceable.
(d) Debtor has made no previous assignment, transfer or
agreement constituting a present or future assignment, transfer or
encumbrance of any of the Trademark Collateral. Debtor has not
granted any license, release, covenant not to sue, or non-assertion
assurance to any Person with respect to any part of the Trademark
Collateral.
(e) To the best of Debtor's knowledge, no claim has been made
and is continuing or threatened that the use by Debtor of any item of
Trademark Collateral does or may violate the rights of any Person in
the United States. To the best of Debtor's knowledge, there is
currently no infringement or unauthorized use of any Trademark which
could give rise to a claim by any Person.
Section 4. Further Assurances. (a) Debtor agrees that from
time to time, at the expense of Debtor, Debtor will promptly execute and
deliver all further instruments and documents, and take all further action
(including the execution and filing of financial statements and
continuations thereof and amendments thereto), that may be required, or that
the Agent may reasonably request, in order to (i) continue, perfect and
protect any security interest granted or purported to be granted hereby or
(ii) enable the Agent to exercise and enforce its rights and remedies
hereunder with respect to any part of the Trademark Collateral.
(b) Debtor hereby authorizes the Agent to file one or more
financing or continuation statements, and amendments thereto, relative to
all or any part of the Trademark Collateral without the signature of the
Debtor where permitted by law, in each case with prior notice to Debtor.
(c) Debtor agrees that, should it obtain an ownership interest
in any trademark, service mark, trade name, trade dress, other indicia of
trade origin, trademark or service mark registration, or application for
trademark or service mark registration or license which is not now a part of
the Trademark Collateral, (i) the Debtor shall give prompt written notice
thereof to the Agent, (ii) the provisions of Section 1 shall automatically
apply thereto, and (iii) any such trademark, service mark, trade name, trade
dress, indicia of trade origin, trademark or service mark registration or
application for trademark or service mark registration, together with the
goodwill of the business connected with the use of the mark and symbolized
by it, or license, shall automatically become part of the Trademark
Collateral.
(d) Debtor agrees to notify the Agent promptly in writing if
Debtor learns of any adverse determination or the institution of any
proceeding (including, without limitation, the institution of any proceeding
in the United States Patent and Trademark Office or any court) regarding any
item of the Trademark Collateral.
Section 5. Agent Appointed Attorney-in-Fact. Debtor hereby
irrevocably appoints the Agent Debtor's attorney-in-fact, with full
authority in the place and stead of Debtor and in the name of Debtor or
otherwise, from time to time in the Agent's discretion upon the occurrence
and during the continuance of an Event of Default under the Credit
Agreement, to take any action and to execute any instrument that the Agent
may deem necessary or advisable to accomplish the purposes of this Trademark
Security Agreement, including, without limitation to file any claims or take
any action or institute any proceedings that the Agent may deem necessary or
desirable for the collection of any payments relating to any of the
Trademark Collateral or otherwise to enforce the rights of the Agent with
respect to any of the Trademark Collateral.
Section 6. The Agent's Duties. The powers conferred on the
Agent hereunder are solely to protect its interest in the Trademark
Collateral and shall not impose any duty upon the Agent to exercise any such
powers. Except for the exercise of reasonable care in the custody of any
Trademark Collateral in its possession and the accounting for any moneys
actually received by it hereunder, the Agent shall have no duty as to any
Trademark Collateral or as to the taking of any necessary steps to preserve
rights against other parties or any other rights pertaining to any Trademark
Collateral.
Section 7. Remedies. If any Event of Default shall have
occurred and be continuing:
(a) The Agent may exercise in respect of the Trademark
Collateral, in addition to other rights and remedies provided for
herein or otherwise available to the Agent, all the rights and
remedies of a secured party upon default under the Uniform Commercial
Code in effect in the State of New York at that time (the "Uniform
Commercial Code") (whether or not the Uniform Commercial Code applies
to the affected Trademark Collateral) and also may (i) exercise any
and all rights and remedies of the Debtor under or otherwise in
respect of the Trademark Collateral and (ii) dispose of the Trademark
Collateral as part of any sale of all or part of Debtor's business or
otherwise.
(b) All payments received by Debtor under or in connection with
any of the Trademark Collateral shall be received in trust for the
benefit of the Agent, shall be segregated from other funds of Debtor
and shall be forthwith paid over to the Agent in the same form as so
received (with any necessary endorsement).
(c) All payments made under or in connection with or otherwise
in respect of the Trademark Collateral and all cash proceeds received
by the Agent in respect of any sale of, collection from, or other
realization upon all or any part of the Trademark Collateral may, in
the discretion of the Agent, be held by the Agent as collateral for,
and/or then or at any time thereafter applied (after payment of any
amounts payable to the Agent pursuant to Section 8) in whole or in
part by the Agent for the ratable benefit of the Creditors against,
all or any part of the Obligations, in such order as provided in the
Credit Agreement, or to the extent not so provided, as the Agent shall
elect.
Section 8. Indemnity and Expenses. (a) Debtor agrees to
indemnify the Agent from and against any and all claims, losses and
liabilities arising out of or resulting from this Trademark Security
Agreement or the transactions contemplated hereby (including, without
limitation, enforcement of this Trademark Security Agreement), except
claims, losses or liabilities resulting from the Agent's gross negligence or
wilful misconduct as determined by a final judgment of a court of competent
jurisdiction,
(b) Debtor will upon demand pay to the Agent the amount of any
and all reasonable expenses, including, without limitation, the reasonable
fees and disbursements of its counsel and of any experts and agents, which
the Agent may incur in connection with (i) the administration of this
Trademark Security Agreement, (ii) the custody, preservation, use or
operation of, or the sale of, collection from, or other realization upon,
any of the Trademark Collateral, (iii) the exercise or enforcement of any of
the rights of the Agent or the Creditors hereunder, or (iv) the failure by
Debtor to perform or observe any of the provisions hereof.
Section 9. Amendments, Waivers, Etc. No amendment or waiver of
any provision of this Trademark Security Agreement nor consent to any
departure by the Debtor herefrom shall in any event be effective unless the
same shall be in writing and signed by the Agent, and then such waiver or
consent shall be effective only in the specific instance and for the
specific purpose for which given.
Section 10. Addresses for Notices. All notices and other
communications to either party provided for hereunder shall be in writing
and shall be mailed, delivered or communicated to such party at the address
of such party specified in, or determined pursuant to, Section 12.07 of the
Credit Agreement, or as to either party at such other notice to the other
party complying as to delivery with the terms of this Section.
Section 11. Continuing Security Interest; Transfer of Notes;
Release of Collateral. (a) This Trademark Security Agreement shall create
a continuing security interest in the Trademark Collateral and shall (i)
remain in full force and effect until payment in full of the Obligations,
(ii) be binding upon Debtor, its successors and assigns, and (iii) inure,
together with the rights and remedies of the Agent hereunder, to the benefit
of the Creditors and their respective successors, transferees and assigns.
(b) Upon the payment in full of the Obligations, the liens and
security interests granted hereby shall terminate and all rights to the
Trademark Collateral shall revert and be reassigned to the Debtor. Upon any
such termination, the Agent will, at the Debtor's expense, execute and
deliver to Debtor such documents as Debtor shall reasonably request to
evidence such termination, release and reassignment.
Section 12. Severability. If any term or provision of this
Trademark Security Agreement is or shall become illegal, invalid or
unenforceable in any jurisdiction, all other terms and provisions of this
Trademark Security Agreement shall remain legal, valid and enforceable in
such jurisdiction and such illegal, invalid or unenforceable provision shall
be legal, valid and enforceable in any other jurisdiction.
Section 13. Governing Law; Terms. THIS TRADEMARK SECURITY
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF
THE STATE OF NEW YORK, EXCEPT TO THE EXTENT THAT THE VALIDITY OR
PERFECTION
OF THE SECURITY INTEREST HEREUNDER, OR REMEDIES HEREUNDER, IN
RESPECT OF ANY
PARTICULAR TRADEMARK COLLATERAL ARE GOVERNED BY THE LAW OF THE
UNITED STATES
OR ANY OTHER JURISDICTION OTHER THAN THE STATE OF NEW YORK. Unless
otherwise defined herein or in the Credit Agreement, terms used in Article 9
of the Uniform Commercial Code as in effect in the State of New York are
used herein as therein defined.
IN WITNESS WHEREOF, Debtor has caused this Security Trademark
Agreement to be duly executed and delivered by its officer thereunto duly
authorized as of the date first above written.
NATIONAL PROPANE CORPORATION
By: _________________________
Name:
Title:
THE BANK OF NEW YORK, as Agent
By: _________________________
Name:
Title:
SCHEDULE 1
-------------
UNITED STATES TRADEMARK REGISTRATIONS AND APPLICATIONS
-----------------------------------------------------------
Registrations:
Mark Owner Reg. No. Reg. Date
---------- ---------- ------------ -------------
Applications:
---------------
Mark Application No. Filing Date
------------ ------------------- ---------------
SCHEDULE 2
-----------
Licenses
-----------
STATE OF NEW YORK)
:ss.:
COUNTY OF NEW YORK)
On the ____ day of _________, 199_, before me personally came
________________ to me known, who, being by me duly sworn, did depose and
say he resides at ____________ __________; and that he is the _________ of
____________, the corporation described in and which executed the above
instrument; that he knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
order of the Board of Directors of said corporation; that he signed his name
thereto by like order; and that he acknowledged said instrument to be the
free act and deed of said corporation.
Notary Public
[Notarial Seal]
Exhibit G
NOTICE OF BORROWING FOR REVOLVING CREDIT LOANS
[Dated as provided
in Section 2.02]
The Bank of New York, as Administrative Agent
One Wall Street
New York, New York 10286
Attention: _________________
The Bank of New York, as Administrative Agent
Agency Function Administration
One Wall Street, 18th Floor
New York, New York, 10286
Attention: _________________
NATIONAL PROPANE CORPORATION (the "Borrower") hereby gives
notice of its intention to borrow [$ ] on [date] pursuant to the
Revolving Credit and Term Loan Agreement, dated as of October 7, 1994 (as
amended, supplemented, modified, or extended from time to time, the "Credit
Agreement"), between the Borrower, The Bank of New York, as Administrative
Agent, The First National Bank of Boston and Internationale Nederlanden
(U.S.) Capital Corporation, as Co-Agents, and the Lenders from time to time
parties thereto. Capitalized terms used but not defined herein shall have
the meanings set forth in the Credit Agreement. This borrowing will consist
of [ABR Revolving Loans] [Eurodollar Revolving Loans] [and the principal
amount of such Loans will bear interest as provided in Section [4.01] [4.02]
of the Agreement].
[If Eurodollar Revolving Loans -- The initial Interest Period of
such Eurodollar Revolving Loans will be [one month] [two months] [three
months] [six months].]
These Loans will be a [General Purposes Borrowing] [Acquisition
Borrowing]. The Borrower hereby confirms that each of the representations
and warranties set forth in Article VI of the Credit Agreement are true and
correct in all material respects on the date hereof and, after giving effect
to this borrowing, will be true and correct in all material respects on the
proposed borrowing date as though such representations and warranties had
originally been made on such dates. The Borrower has complied and is now in
compliance in all material respects with all the terms, covenants and condi-
tions of the Credit Agreement which are binding on it and, after giving
effect to this borrowing, will be in such compliance. No Default or Event
of Default under the Credit Agreement has occurred and is continuing nor
will any such event occur as a result of this borrowing.
NATIONAL PROPANE CORPORATION
By: _______________________
Name:
Title:
Exhibit H
REVOLVING CREDIT NOTE
$_____ October 7, 1994
NATIONAL PROPANE CORPORATION, a Delaware corporation (the
"Borrower"), for value received, hereby promises to pay to the order of
___________________ (the "Lender"), at the office of The Bank of New York,
as Administrative Agent, at One Wall Street, New York, New York 10286 in
lawful money of the United States, on March 31, 2000, the principal sum of
$___________ or, if less, the aggregate unpaid principal amount of all
Revolving Credit Loans made by the Lender to the Borrower pursuant to the
Credit Agreement (as defined below). This Note shall bear interest on the
dates and at the rates set forth in the Credit Agreement for ABR Revolving
Loans and Eurodollar Revolving Loans.
This Note is one of the Revolving Credit Notes referred to in
that certain Revolving Credit and Term Loan Agreement, dated as of October
7, 1994 (as amended, supplemented, modified or extended from time to time,
the "Credit Agreement"), between the Borrower, The Bank of New York, as
Administrative Agent, The First National Bank of Boston and Internationale
Nederlanden (U.S.) Capital Corporation, as Co-Agents, and the lenders from
time to time parties thereto, including the Lender, and is subject to
prepayment in whole or in part and its maturity is subject to acceleration
upon the terms provided in the Credit Agreement.
All changes in interest determination on the Revolving Credit
Loans made by the Lender to the Borrower pursuant to the Credit Agreement
and all payments of principal and interest thereon may be indicated by the
Lender upon the grid attached hereto which is a part of this Note. Such
notations shall be presumed correct absent manifest error as to the
aggregate unpaid principal amount of all Revolving Credit Loans made by the
Lender pursuant to the Credit Agreement, and interest due thereon, provided,
that any failure by the Lender to make any such notations shall not affect
the obligations of the Borrower hereunder or under the Credit Agreement in
respect of such Revolving Credit Loans.
This Note is entitled to the benefits of the Guarantee and the
Security Documents referred to in the Credit Agreement.
The obligations of the Borrower evidenced hereby constitute
"senior debt" for purposes of all documents to which the Borrower is a party
or by which it or its properties are bound.
This Note shall be governed by, and construed and interpreted in
accordance with, the laws of the State of New York.
NATIONAL PROPANE CORPORATION
By: _______________________
Name:
Title:
Loans and Payments of Principal
--------------------------------------
Name of
Interest Interest Period Interest Rate
Amount of Unpaid
Person
Amount Method (ABR) (if Eurodollar (if fixed for a
Principal Principal
Making
Date of Loan or Eurodollar) Loan) Specified period)
Paid Balance
Notification
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Exhibit I
TRANCHE A TERM NOTE
$_________ October 7, 1994
NATIONAL PROPANE CORPORATION, a Delaware corporation (the
"Borrower"), for value received, hereby promises to pay to the order of
_______________________ (the "Lender"), at the office of The Bank of New
York, as Administrative Agent, at One Wall Street, New York, New York 10286,
in lawful money of the United States, the principal sum of $__________, in
installments payable in the amounts and on the dates set forth in the Credit
Agreement (as defined below).
This Note shall bear interest on the dates and at the rates set
forth in the Credit Agreement for ABR Term Loans and Eurodollar Term Loans.
Except as otherwise provided in the Credit Agreement with respect
to Eurodollar Term Loans, if interest or principal on the loan evidenced by
this Note becomes due and payable on a day which is not a Business Day, as
defined in the Credit Agreement, the maturity thereof shall be extended to
the next succeeding Business Day, and interest shall be payable thereon at
the rate herein specified during such extension.
This Note is one of the Tranche A Term Notes referred to in that
certain Revolving Credit and Term Loan Agreement, dated as of October 7, 1994
(as amended, supplemented, modified or extended from time to time, the
"Credit Agreement"), between the Borrower, The Bank of New York, as
Administrative Agent, The First National Bank of Boston and Internationale
Nederlanden (U.S.) Capital Corporation, as Co-Agents, and the lenders from
time to time parties thereto, including the Lender, and is subject to prepay-
ment in whole or in part and its maturity is subject to acceleration upon the
terms provided in the Credit Agreement.
The obligations of the Borrower evidenced hereby constitute
"senior debt" for purposes of all documents to which the Borrower is a party
or by which it or its properties are bound.
This Note is entitled to the benefits of the Guarantee and the
Security Documents referred to in the Credit Agreement.
This Note shall be governed by, and construed and interpreted in
accordance with, the laws of the State of New York.
NATIONAL PROPANE CORPORATION
By: ______________________
Name:
Title:
Exhibit J
TRANCHE B TERM NOTE
$_________ October 7, 1994
NATIONAL PROPANE CORPORATION, a Delaware corporation (the
"Borrower"), for value received, hereby promises to pay to the order of
_________________________ (the "Lender"), at the office of The Bank of New
York, as Administrative Agent, at One Wall Street, New York, New York 10286,
in lawful money of the United States, the principal sum of $______________,
in installments payable in the amounts and on the dates set forth in the
Credit Agreement (as defined below).
This Note shall bear interest on the dates and at the rates set
forth in the Credit Agreement for ABR Term Loans and Eurodollar Term Loans.
Except as otherwise provided in the Agreement with respect to
Eurodollar Term Loans, if interest or principal on the loan evidenced by this
Note becomes due and payable on a day which is not a Business Day, as defined
in the Credit Agreement, the maturity thereof shall be extended to the next
succeeding Business Day, and interest shall be payable thereon at the rate
herein specified during such extension.
This Note is one of the Tranche B Term Notes referred to in that
certain Revolving Credit and Term Loan Agreement, dated as of October 7, 1994
(as amended, supplemented, modified or extended from time to time, the
"Credit Agreement"), between the Borrower, The Bank of New York, as
Administrative Agent, The First National Bank of Boston and Internationale
Nederlanden (U.S.) Capital Corporation, as Co-Agents, and the lenders from
time to time parties thereto, including the Lender, and is subject to prepay-
ment in whole or in part and its maturity is subject to acceleration upon the
terms provided in the Credit Agreement.
This Note is entitled to the benefits of the Guarantee and the
Security Documents referred to in the Credit Agreement.
The obligations of the Borrower evidenced hereby constitute
"senior debt" for purposes of all documents to which the Borrower is a party
or by which it or its properties are bound.
This Note shall be governed by, and construed and interpreted in
accordance with, the laws of the State of New York.
NATIONAL PROPANE CORPORATION
By: ______________________
Name:
Title:
Exhibit K
TRANCHE C TERM NOTE
$_________ ________ __, 199_
NATIONAL PROPANE CORPORATION, a Delaware corporation (the
"Borrower"), for value received, hereby promises to pay to the order of
_________________________ (the "Lender"), at the office of The Bank of New
York, as Administrative Agent, at One Wall Street, New York, New York 10286,
in lawful money of the United States, the principal sum of $______________,
in installments payable in the amounts and on the dates set forth in the
Credit Agreement (as defined below).
This Note shall bear interest on the dates and at the rates set
forth in the Credit Agreement for ABR Term Loans and Eurodollar Term Loans.
Except as otherwise provided in the Credit Agreement with respect
to Eurodollar Term Loans, if interest or principal on the loan evidenced by
this Note becomes due and payable on a day which is not a Business Day, as
defined in the Credit Agreement, the maturity thereof shall be extended to
the next succeeding Business Day, and interest shall be payable thereon at
the rate herein specified during such extension.
This Note is one of the Tranche C Term Notes referred to in that
certain Revolving Credit and Term Loan Agreement, dated as of October 7, 1994
(as amended, supplemented, modified or extended from time to time, the
"Credit Agreement"), between the Borrower, The Bank of New York, as
Administrative Agent, The First National Bank of Boston and Internationale
Nederlanden (U.S.) Capital Corporation, as Co-Agents, and the lenders from
time to time parties thereto, including the Lender, and is subject to prepay-
ment in whole or in part and its maturity is subject to acceleration upon the
terms provided in the Credit Agreement.
This Note is entitled to the benefits of the Guarantee and the
Security Documents referred to in the Credit Agreement.
The obligations of the Borrower evidenced hereby constitute
"senior debt" for purposes of all documents to which the Borrower is a party
or by which it or its properties are bound.
This Note shall be governed by, and construed and interpreted in
accordance with, the laws of the State of New York.
NATIONAL PROPANE CORPORATION
By: ______________________
Name:
Title:
Exhibit L
TRANCHE D TERM NOTE
$_________ ________ __, 199_
NATIONAL PROPANE CORPORATION, a Delaware corporation (the
"Borrower"), for value received, hereby promises to pay to the order of
_________________________ (the "Lender"), at the office of The Bank of New
York, as Administrative Agent, at One Wall Street, New York, New York 10286,
in lawful money of the United States, the principal sum of $______________,
in installments payable in the amounts and on the dates set forth in the
Credit Agreement (as defined below).
This Note shall bear interest on the dates and at the rates set
forth in the Credit Agreement for ABR Term Loans and Eurodollar Term Loans.
Except as otherwise provided in the Agreement with respect to
Eurodollar Term Loans, if interest or principal on the loan evidenced by this
Note becomes due and payable on a day which is not a Business Day, as defined
in the Credit Agreement, the maturity thereof shall be extended to the next
succeeding Business Day, and interest shall be payable thereon at the rate
herein specified during such extension.
This Note is one of the Tranche D Term Notes referred to in that
certain Revolving Credit and Term Loan Agreement, dated as of October 7, 1994
(as amended, supplemented, modified or extended from time to time, the
"Credit Agreement"), between the Borrower, The Bank of New York, as
Administrative Agent, The First National Bank of Boston and Internationale
Nederlanden (U.S.) Capital Corporation, as Co-Agents, and the lenders from
time to time parties thereto, including the Lender, and is subject to prepay-
ment in whole or in part and its maturity is subject to acceleration upon the
terms provided in the Credit Agreement.
The obligations of the Borrower evidenced hereby constitute
"senior debt" for purposes of all documents to which the Borrower is a party
or by which it or its properties are bound.
This Note is entitled to the benefits of the Guarantee and the
Security Documents referred to in the Credit Agreement.
This Note shall be governed by, and construed and interpreted in
accordance with, the laws of the State of New York.
NATIONAL PROPANE CORPORATION
By: ______________________
Name:
Title:
Exhibit M
NOTICE OF BORROWING FOR TRANCHE A AND TRANCHE B TERM LOANS
October __, 1994
The Bank of New York,
as Administrative Agent
Agency Function Administration
One Wall Street
New York, New York 10286
Ladies and Gentlemen:
NATIONAL PROPANE CORPORATION (the "Borrower") hereby gives notice
of its intention to borrow [$60,000,000] as Tranche A Term Loans and
[$30,000,000] as Tranche B Term Loans on the Effective Date (currently
expected to be October 7, 1994) under the Revolving Credit and Term Loan
Agreement, dated as of October 7, 1994 (as amended, supplemented, modified or
extended from time to time, the "Credit Agreement"), between the Borrower and
The Bank of New York, as Administrative Agent, The First National Bank of
Boston and Internationale Nederlanden (U.S.) Capital Corporation, as
Co-Agents, and the Lenders from time to time parties thereto. Capitalized
terms used but not defined herein shall have the meanings set forth in the
Credit Agreement. This borrowing will consist of ABR Term Loans and the
principal amount of such Loans will bear interest as provided in Section 4.01
of the Credit Agreement.
NATIONAL PROPANE CORPORATION
By: ______________________
Name:
Title:
Exhibit N
NOTICE OF BORROWING FOR TRANCHE C TERM LOANS
[Dated as provided
in Section 3.05]
The Bank of New York,
as Administrative Agent
One Wall Street
New York, New York 10286
The Bank of New York,
as Administrative Agent
Agency Function Administration
One Wall Street
New York, New York 10286
Attention: ____________________
Ladies and Gentlemen:
NATIONAL PROPANE CORPORATION (the "Borrower") hereby gives notice
of its intention to borrow [$20,000,000] as Tranche C Term Loans on [date]
pursuant to the Revolving Credit and Term Loan Agreement, dated as of October
7, 1994 (as amended, supplemented, modified or extended from time to time,
the "Credit Agreement"), between the Borrower and The Bank of New York, as
Administrative Agent, The First National Bank of Boston and Internationale
Nederlanden (U.S.) Capital Corporation, as Co-Agents, and the Lenders from
time to time parties thereto. Capitalized terms used but not defined herein
shall have the meanings set forth in the Credit Agreement. This borrowing
will consist of [ABR Term Loans] [Eurodollar Term Loans] [and the principal
amount of such Loans will bear interest as provided in Section [4.01] [4.02]
of the Credit Agreement].
[For Eurodollar Term Loans -- The initial Interest Period will be
[one month] [two months] [three months] [six months].]
The Borrower hereby confirms that each of the representations and
warranties set forth in Article VI of the Credit Agreement are true and
correct in all material respects on the date hereof and, after giving effect
to this borrowing, will be true and correct in all material respects on the
proposed borrowing date as though such representations and warranties had
originally been made on such dates. The Borrower has complied and is now in
compliance in all material respects with all the terms, covenants, and condi-
tions of the Credit Agreement which are binding on it and, after giving
effect to this borrowing, will be in such compliance. No Default or Event of
Default under the Credit Agreement has occurred and is continuing nor will
any such event occur as a result of this borrowing.
NATIONAL PROPANE CORPORATION
By: ______________________
Name:
Title:
PAGE
Exhibit O
NOTICE OF INTEREST ELECTION
[Dated as provided
in Section 4.03]
The Bank of New York, as Administrative Agent
Agency Function Administration
One Wall Street
New York, New York 10286
Attention: ____________________
Ladies and Gentlemen:
NATIONAL PROPANE CORPORATION (the "Borrower") hereby gives notice
of its intention pursuant to the Revolving Credit and Term Loan Agreement,
dated as of October 7, 1994 (as amended, supplemented, modified or extended
from time to time, the "Credit Agreement"), between the Borrower, The Bank of
New York, as Administrative Agent, The First National Bank of Boston and
Internationale Nederlanden (U.S.) Capital Corporation, as Co-Agents, and the
Lenders from time to time parties thereto to change the basis of interest on
a [portion of the] Loans currently outstanding in the aggregate amount of
$__________ as [ABR Loans] [Eurodollar Loans] the last day of the Interest
Period for which is [date]. An aggregate amount of $___________ of such
Loans shall bear interest as [ABR Loans] [Eurodollar Loans] as provided in
Section [4.01] [4.02] of the Credit Agreement, effective as of [date]. [The
Interest Period for such Eurodollar Loan will be [one month] [two months]
[three months] [six months].]
NATIONAL PROPANE CORPORATION
By: ______________________
Name:
Title:
Exhibit P
FORMS OF OPINIONS OF COUNSEL
FOR THE BORROWER AND THE GUARANTOR
[Effective Date]
[DATE]
Exhibit Q
[FORM OF PUBLIC GAS MANAGEMENT AGREEMENT]
[DATE]
Exhibit R
ASSIGNMENT AND ASSUMPTION AGREEMENT
Reference is made to the Revolving Credit and Term Loan
Agreement, dated as of October 7, 1994 (as amended, supplemented, modified or
extended from time to time, the "Credit Agreement"), among NATIONAL PROPANE
CORPORATION, a Delaware corporation (the "Borrower"), each of the several
lenders from time to time parties thereto (each a "Lender" and, collectively,
the "Lenders"), THE BANK OF NEW YORK, as Administrative Agent for the Lenders
(in such capacity, the "Administrative Agent") and THE FIRST NATIONAL BANK OF
BOSTON and INTERNATIONALE NEDERLANDEN (U.S.) CAPITAL CORPORATION,
as
Co-Agents. Capitalized terms defined in the Credit Agreement are used herein
with the same meanings.
Section 1. Assignment and Acceptance. The Assignor identified
in Annex 1 hereby sells and assigns, without recourse, to the Assignee
identified in Annex 1, and the Assignee hereby purchases and assumes, without
recourse, from the Assignor, effective as of the Effective Date set forth in
Annex 1, the interests set forth on Annex 1 (the "Assigned Interest") in the
Assignor's rights and obligations under the Credit Agreement, including,
without limitation, the interests set forth on Annex 1 in the Revolving
Credit Commitment and Tranche C Term Loan Commitment of the Assignor on the
Effective Date and the Revolving Credit Loans and Term Loans owing to the
Assignor which are outstanding on the Effective Date, together with unpaid
interest accrued on the assigned Loans to the Effective Date and the amount,
if any, set forth on Annex 1 hereto of any fees under the Credit Agreement
accrued to the Effective Date for the account of the Assignor.
Section 2. Representations and Warranties of the Assignor. The
Assignor (a) represents and warrants that it is the legal and beneficial
owner of the interest being assigned by it hereunder and that such interest
is free and clear of any adverse claim; (b) 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, the Guarantee, the Notes, the Letters of Credit or the other
Credit Documents, or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement, the Guarantee, the
Notes, the Letters of Credit, the other Credit Documents or any other
instrument or document executed or furnished pursuant thereto; and (c) makes
no representation or warranty, and assumes no responsibility, with respect to
the financial condition of the Borrower or the Guarantor or the performance
or observance by the Borrower or the Guarantor of any of its respective
obligations under the Credit Agreement, the Guarantee, the Notes, the Letters
of Credit, the other Credit Documents, or any other instrument or document
executed or furnished pursuant thereto.
Section 3. Confirmations and Agreements of the Assignee. The
Assignee (a) confirms that it has received a copy of the Credit Agreement,
together with copies of the financial statements delivered on or before the
date hereof pursuant to Sections 6.05 and 8.01(a) and (b) thereof and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Agreement; (b) agrees that it
will, independently and without reliance upon the Administrative Agent, the
Co-Agents, the Assignor 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 any action under the Credit
Documents; (c) appoints and authorizes the Administrative Agent to take such
action as agent on its behalf and to exercise such powers under the Credit
Documents (including the Security Documents) as are delegated to such Person
by the terms thereof, together with such powers as are reasonably incidental
thereto; (d) agrees that it will perform in accordance with their terms all
of the obligations which by the terms of the Credit Documents are required to
be performed by it as a Lender; (e) if the Assignee is not already a Lender,
specifies as its address for notices and Eurodollar Lending Office the
offices set forth on Annex 1; and (f) if the Assignee is organized under the
laws of a jurisdiction outside the United States, confirms to the Borrower
and the Guarantor (and is providing to the Administrative Agent and the
Borrower Internal Revenue Service form 1001 or 4224, as appropriate, or any
successor form prescribed by the Internal Revenue Service) that (i) the
Assignee is entitled to benefits under an income tax treaty to which the
United States is a party that reduces the rate of withholding tax on payments
under the Credit Agreement or (ii) that the income receivable pursuant to the
Credit Agreement is effectively connected with the conduct of a trade or
business in the United States.
Section 4. Delivery to the Administrative Agent. Following the
execution of the Agreement by the Assignor and the Assignee, it will be
delivered to the Administrative Agent, together (where applicable) with a
processing fee of $2,500 in cash, for acceptance and recording by the Agent.
The effective date of this Agreement shall be specified on the Schedule
hereto (the "Effective Date").
Section 5. Effect of Assignment. (a) Upon acceptance and
recording by the Agent, as of the Effective Date, (i) the Assignee shall be a
party to the Credit Agreement and, to the extent provided in this Agreement,
have the rights and obligations of a Lender thereunder and (ii) the Assignor
shall, to the extent provided in this Agreement, relinquish its rights and be
released from its obligations as a Lender under the Credit Agreement.
(b) Upon acceptance and recording by the Administrative Agent,
from and after the Effective Date, the Administrative Agent shall transmit
all notices for funding of Loans and shall make all payments under the Credit
Agreement in respect of the interest assigned hereby (including, without
limitation, all payments of principal, interest and commitment fees with
respect thereto) to the Assignee. The Assignor and Assignee shall make all
appropriate adjustments in payments under the Credit Agreement for periods
prior to the Effective Date directly between themselves.
SECTION 6. GOVERNING LAW. THIS ASSIGNMENT AND ASSUMPTION
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE
INTERNAL LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment and Acceptance to be executed by their respective officers
thereunto duly authorized, as of the date first above written, such execution
being made on Annex 1 hereto.
Annex 1
to
Assignment and Acceptance Agreement
Dated _________, ___
Section 1.
Percentage Interest: _______%
Section 2.
Assignee's Revolving Credit Commitment: $_______
Assignee's Tranche C Term Loan
Commitment: $_______
Aggregate Outstanding Principal
Amount of Revolving Credit Loans: $_______
Aggregate Outstanding Amount of Letter
of Credit Obligations: $_______
Aggregate Outstanding Principal Amount
of Tranche A Term Loan owing to
Assignee: $_______
Aggregate Outstanding Principal Amount
of Tranche B Term Loan owing to Assignee: $_______
Aggregate Outstanding Principal Amount
of Tranche C Term Loan owing to Assignee: $_______
Aggregate Outstanding Principal Amount
of Tranche D Term Loan owing to Assignee: $_______
Section 3.
Effective Date:
__________, ____
______________________
(Name of Assignor)
By: _________________
Title:
_______________________
(Name of Assignor)
By: _________________
Title:
Address for Notices:
________________________________
________________________________
________________________________
________________________________
Attention:____________________
Telecopy: ____________________
Eurodollar Lending Office:
________________________________
________________________________
________________________________
________________________________
Attention:____________________
Telecopy: ____________________
Accepted this ______ day
of ____________, ____
THE BANK OF NEW YORK, as Administrative Agent
By: _____________________
Title:
If the Assignee is not a Lender (as defined in the Credit
Agreement), an affiliate of the Assignor or a Federal Reserve Bank, the
Borrower consents to the assignment.
Assignment consented to this ____ day
of _____________, ____
NATIONAL PROPANE CORPORATION
By: ________________________
Title: