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PM HOLDINGS GUARANTY AGREEMENT
made by
PM HOLDINGS CORPORATION
in favor of
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION,
Individually, as an Issuing Bank
and as the Administrative Agent
and
FINANCIAL INSTITUTIONS NOW OR HEREAFTER
PARTIES TO THE CREDIT AGREEMENT
March 12, 1998
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GUARANTY AGREEMENT, dated as of March 12, 1998 (this
"Guaranty"), by PM HOLDINGS CORPORATION, a Delaware corporation
(the "Guarantor"), in favor of CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION, individually, as an Issuing Bank and as the
Administrative Agent (herein the "Administrative Agent"), each of
the other banks or lending institutions (collectively, the
"Lenders") now or hereafter parties to the Credit Agreement (as
defined below), and the Secured Affiliates (as defined in the
Credit Agreement).
RECITALS
A. On even date herewith, the Company, the Administrative
Agent, the Issuing Banks, and the Lenders are executing that
certain Credit Agreement (said Credit Agreement, as the same may
from time to time be amended, supplemented, restated or modified,
the "Credit Agreement") pursuant to which, upon the terms and
conditions stated therein, the Lenders agree to make loans and to
participate in extensions of credit for the account of the
Company.
B. The Guarantor owns, beneficially and of record, 100% of
the outstanding capital stock of the Company.
C. The Lenders have conditioned their respective
obligations under the Credit Agreement upon the execution and
delivery of this Guaranty by the Guarantor, and the Guarantor has
agreed to enter into this Guaranty.
NOW THEREFORE, in order to comply with the terms and
conditions of the Credit Agreement and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Guarantor agrees, with and for the
benefit of the Guaranteed Parties (as defined below), as follows:
AGREEMENT
1. Defined Terms. Each capitalized term used herein, and
not otherwise defined herein, shall have the meaning ascribed to
such term in the Credit Agreement. The following capitalized
terms shall have the following meanings:
"Guaranteed Parties" shall mean each of the
Administrative Agent, the Lenders, the Issuing Banks and
the Secured Affiliates.
"Obligations" shall mean (a) all Lender Indebtedness
now or hereafter owing, pursuant to the Credit Agreement,
the Notes, any Letters of Credit, any other Financing
Document or any Hedge Agreement, including, but not limited
to, (i) the unpaid principal of and accrued interest on any
of the foregoing (including interest accruing on or after
the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like
proceeding, relating to the Company, whether or not a claim
for post-filing or post-petition interest is allowed in
such proceeding), (ii) payment of and performance of any
and all present or future obligations of the Company
according to the terms of any present or future Hedge
Agreement or any option with respect to any such
transaction now existing or hereafter entered into between
the Company and the Administrative Agent or any Lender or
any Secured Affiliate pursuant to, or in connection with,
the Lender Indebtedness or any Financing Document, and
(iii) the obligation of the Company to otherwise
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reimburse any Guaranteed Party, whether on account of fees,
indemnities, costs, taxes, expenses (including all taxes,
expenses, and disbursements described in Sections 2.20 or
9.4 of the Credit Agreement) or otherwise, (b) any and all
other sums payable by the Guarantor or the Company or any
of its Subsidiaries under or in respect of any Financing
Document, and (c) any and all renewals, extensions,
rearrangements, replacements, substitutions, increases
and/or modifications of all or any part of the foregoing.
2. Guarantee.
(a) The Guarantor hereby unconditionally and irrevocably
and jointly and severally with each of the Subsidiary Guarantors,
guarantees to each Guaranteed Party the prompt and complete
payment when due (whether at the stated maturity, by acceleration
or otherwise) of the Obligations, and the Guarantor further
agrees, jointly and severally with each of the Subsidiary
Guarantors, to pay any and all expenses which may be paid or
incurred by any Guaranteed Party in enforcing any rights with
respect to, or collecting, any or all of the Obligations and/or
enforcing any rights with respect to, or collecting against, the
Guarantor under this Guaranty.
(b) No payment or payments made by the Company, the
Guarantor, any Subsidiary Guarantor, any other guarantor or any
other Person, or received or collected by any Guaranteed Party
from the Company, the Guarantor, any Subsidiary Guarantor, any
other guarantor or any other Person by virtue of any action or
proceeding or any set-off or appropriation or application at any
time or from time to time in reduction of or in payment of the
Obligations shall be deemed to modify, reduce, release or
otherwise affect the liability of the Guarantor hereunder, which
shall, notwithstanding any such payment or payments, other than
payments made by the Guarantor in respect of the Obligations or
payments received or collected from the Guarantor in respect of
the Obligations, remain liable for the Obligations until the
Obligations are paid in full.
(c) The Company and the Guarantor are personally obligated
and liable for the amounts due under the Notes. The Lenders have
the right to ▇▇▇ on the Notes and obtain a personal judgment
against the Company and the Guarantor for satisfaction of the
amounts due under the Notes either before or after a judicial
foreclosure of any Financing Document.
(d) The liability of the Guarantor for the payment of the
Obligations guaranteed hereby shall be primary, and not
secondary, and joint and several with the Subsidiary Guarantors.
3. Right of Set-off. Each Guaranteed Party is hereby
irrevocably authorized upon the occurrence of an Event of Default
without notice to the Guarantor, any such notice being expressly
waived by the Guarantor, to set-off and credit against any
credits, indebtedness, or claims, in any currency, in each case
whether direct or indirect or contingent or matured or unmatured,
at any time held or owing by such Guaranteed Party to or for the
credit or the account of the Guarantor hereunder or under the
Credit Agreement or any other Financing Document, or any part
thereof in such amounts as such Guaranteed Party may elect,
against and on account of the obligations and liabilities of the
Guarantor to the Guaranteed Parties hereunder and claims of every
nature and description of the Guaranteed Parties against the
Guarantor, in any currency, whether arising hereunder or under
the Credit Agreement or any other Financing Document, as the
Guaranteed Parties may elect, whether or not any Guaranteed Party
has made any demand for payment and although such obligations,
liabilities, and claims may be contingent or unmatured. The
Administrative Agent agrees to notify (promptly after receipt of
such notice by the Administrative Agent) the Company and the
Guarantor of any such set-off and the application made by any
Guaranteed Party, provided, that, the failure to give such notice
shall not affect the validity of such set-off and application.
The rights of the Guaranteed Parties under this paragraph are in
addition to other rights and remedies (including, without
limitation, other rights of set-off) which any such Person may
have.
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4. Limited Right of No Subrogation. Notwithstanding any
payment or payments made by the Guarantor hereunder or any
set-off or application of funds of the Guarantor by any
Guaranteed Party, the Guarantor shall not be entitled to be
subrogated to any of the rights of any Guaranteed Party against
the Company, any other Guarantor, or any collateral security or
guaranty or right of offset held by any such Person for the
payment of the Obligations, nor shall the Guarantor seek or be
entitled to seek any contribution or reimbursement from the
Company or any other guarantor in respect of payments made by the
Guarantor hereunder, until all Obligations are paid in full and
the Commitments are terminated. If any amount shall be paid to
the Guarantor on account of such subrogation rights at any time
when all of the Obligations shall not have been paid in full or
the Commitments have not been terminated, such amount shall be
held by the Guarantor in trust for the Guaranteed Parties,
segregated from other funds of the Guarantor, and shall,
forthwith upon receipt by the Guarantor, be turned over to the
Administrative Agent in the exact form received by the Guarantor
(duly indorsed by the Guarantor to the Administrative Agent, if
required), to be applied against the Obligations, whether matured
or unmatured in such order as the Administrative Agent may
determine.
5. Amendments, etc. with respect to the Obligations; Waiver
of Rights. The Guarantor shall remain obligated hereunder
notwithstanding that, without any reservation of rights against
the Guarantor and without notice to or further assent by the
Guarantor, any demand for payment of any of the Obligations made
by any Guaranteed Party may be rescinded and any of the
Obligations continued, and the Obligations, or the liability of
any other party upon or for any part thereof, or any collateral
security or guaranty therefor or right of offset with respect
thereto, may, from time to time, in whole or in part, be renewed,
extended, amended, modified, accelerated, compromised, waived,
surrendered, or released by the Guaranteed Parties and the Credit
Agreement, the Notes, and any collateral security document or
other guaranty or document in connection therewith (including,
without limitation, the other Financing Documents) may be
amended, modified, supplemented, or terminated, in whole or in
part, as the Guaranteed Parties may deem advisable from time to
time, and any collateral security or guaranty or right of offset
at any time held by the Guaranteed Parties for the payment of the
Obligations may be sold, exchanged, waived, surrendered, or
released, all without the necessity of any reservation of rights
against the Guarantor and without notice to or further assent by
the Guarantor which will remain bound hereunder, notwithstanding
any such renewal, extension, modification, acceleration,
compromise, amendment, supplement, termination, sale, exchange,
waiver, surrender, or release. No Guaranteed Party shall have an
obligation to protect, secure, perfect, or insure any Lien at any
time held as security for the Obligations or this Guaranty or any
Property subject thereto. When making any demand hereunder
against the Guarantor, the Administrative Agent may, but shall be
under no obligation to, make a similar demand on the Company or
any other guarantor, and any failure by the Administrative Agent
to make any such demand or to collect any payments from the
Company or any such other guarantor, or any release of the
Company or other guarantor, shall not relieve the Guarantor of
its obligations or liabilities hereunder, and shall not impair or
affect the rights and remedies, express or implied, or as a
matter of law, of the Guaranteed Parties against the Guarantor.
For the purposes hereof "demand" shall include the commencement
and continuance of any legal proceedings.
6. Guaranty Absolute and Unconditional; Waivers. The
Guarantor waives any and all notice of the creation, renewal,
extension, increase or accrual of any of the Obligations and
notice of or proof of reliance by the Guaranteed Parties upon
this Guaranty or acceptance of this Guaranty, and the Obligations
(and any of them) shall conclusively be deemed to have been
created, contracted, or incurred and extended, amended, and
waived in reliance upon this Guaranty, and all dealings between
the Company or the Guarantor and any Guaranteed Party shall
likewise be conclusively presumed to have been had or consummated
in reliance upon this Guaranty. The Guarantor waives diligence,
presentment, protest, demand for payment, and notice of default
or nonpayment, notice of intention to accelerate maturity, and
notice of acceleration of maturity to or upon the Company or the
Guarantor with respect to the Obligations. The Guarantor
understands and agrees that this Guaranty shall be construed as a
continuing, absolute, completed, unconditional (except as
expressly conditioned pursuant to the terms hereof), and
irrevocable guarantee of
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payment (and not of collection) without regard to (a) the
validity, regularity or enforceability of the Credit Agreement,
the other Financing Documents, any of the Obligations, or any
collateral security or guaranty therefor or right of offset with
respect thereto at any time or from time to time held by the
Guaranteed Parties, (b) any defense, set-off, or counterclaim
which may at any time be available to or be asserted by the
Company or any other Person liable for the Obligations against
the Guaranteed Parties, or (c) any other circumstance whatsoever
(with or without notice to or knowledge of the Company or the
Guarantor) which constitutes, or might be construed to
constitute, an equitable or legal discharge of the Company or any
other Person liable for the Obligations, or of the Guarantor
under this Guaranty, in bankruptcy or in any other instance. When
pursuing any of their rights and remedies against the Guarantor
hereunder, the Guaranteed Parties may, but shall be under no
obligation to, pursue such rights and remedies as they may have
against the Company or any other Person or against any collateral
security or guaranty for the Obligations or any right of offset
with respect thereto, and any failure by the Guaranteed Parties
to pursue such other rights or remedies or to collect any
payments from the Company or any such other Person or to realize
upon any such collateral security or guaranty or to exercise any
such right of offset, or any release of the Company or any such
other Person or any such collateral security, guaranty or right
of offset, shall not relieve the Guarantor of any liability
hereunder, and shall not impair or affect the rights and
remedies, whether express, implied, or available as a matter of
law, of any Guaranteed Party against the Guarantor. This Guaranty
shall remain in full force and effect and be binding in
accordance with and to the extent of its terms upon the Guarantor
and its successors and assigns, and shall inure to the benefit of
the Guaranteed Parties, and their respective successors,
indorsees, transferees, and assigns, until all the Obligations
and the obligations of the Guarantor under this Guaranty shall
have been satisfied by payment in full.
7. Reinstatement. This Guaranty shall continue to be
effective, or be reinstated, as the case may be, if at any time
payment, or any part thereof, of any of the Obligations is
rescinded or must otherwise be restored or returned by any
Guaranteed Party upon the insolvency, bankruptcy, dissolution,
liquidation, or reorganization of the Company or the Guarantor,
or upon or as a result of the appointment of a receiver,
intervenor, or conservator of, or trustee or similar officer for,
the Company or the Guarantor or any substantial part of such
Person's property, or otherwise, all as though such payments had
not been made.
8. Maturity of Obligations; Payment. The Guarantor agrees
that if the maturity of any of the Obligations is accelerated by
bankruptcy or otherwise, such maturity shall also be deemed
accelerated for the purpose of this Guaranty without demand or
notice to the Guarantor, and the Guarantor shall, upon such
acceleration, be obligated to pay to the Administrative Agent the
amount due and unpaid by the Company and guaranteed hereby, which
payment shall be made immediately upon demand thereof by the
Administrative Agent.
9. Payments. The Guarantor hereby guarantees that payments
hereunder will be paid, without set-off or counterclaim and in
immediately available funds and in lawful currency of the United
States of America, to the Administrative Agent in Houston, Texas,
at the Payment Office, not later than 11:00 a.m.
Houston time.
10. Representations and Warranties. The Guarantor hereby
represents and warrants that:
(a) Corporate Existence. The Guarantor is a
corporation duly organized, legally existing and in good
standing under the laws of the State of Delaware.
(b) Corporate Power and Authorization. The Guarantor
is duly authorized and empowered to execute, deliver and
perform this Guaranty; and all corporate action on the
Guarantor's part requisite for the due execution, delivery
and performance of this Guaranty has been duly and
effectively taken.
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(c) Binding Obligations. This Guaranty constitutes a
legal, valid, and binding obligation of the Guarantor, and,
upon execution and delivery to the Administrative Agent on
behalf of the Guaranteed Parties, (assuming due
authorization, execution and delivery by the other parties
thereto) will be enforceable against the Guarantor in
accordance with its terms, subject to (a) bankruptcy,
insolvency, moratorium and other similar laws now or
hereafter in effect relating to or affecting creditors'
rights generally, and (b) general principles of equity
(regardless of whether considered in a proceeding at law or
in equity).
(d) No Legal Bar or Resultant Lien. This Guaranty does
not and will not violate or create a default under any
provisions of the certificate of incorporation or bylaws of
the Guarantor, or any contract, agreement, instrument or
Governmental Requirement to which the Guarantor is subject
(other than those violations and defaults that would not
affect the Guarantor's use of such Property or those
permitted by this Guaranty), or result in the creation or
imposition of any Lien upon any Property of the Guarantor.
(e) No Consent. The Guarantor's execution, delivery
and performance of this Guaranty does not require notice to
or filing or registration with, or authorization, consent
or approval of, or other action by any other Person,
including, but not limited to, any Governmental Authority.
(f) Investments and Guaranties. The Guarantor has not
made investments in or advances to any Person, except for
investments in the Company, PI Acquisition Corporation, and
PI Holding Company, or guaranteed the obligations of any
Person, except for the obligations of the Company.
(g) Litigation. There is no action, suit or
proceeding, or any governmental investigation or any
arbitration, in each case pending or, to the knowledge of
the Guarantor, threatened against the Guarantor, the
Company, or any other Property of the Guarantor before any
court or arbitrator or any Governmental Authority which (i)
challenges the validity or enforceability of this Guaranty,
or (ii) if adversely determined could reasonably be
expected to have a Material Adverse Effect.
(i) Taxes; Governmental Charges. The Guarantor has
filed all tax returns and reports required to be filed and
has paid all taxes, assessments, fees and other
governmental charges levied upon it or upon any of the
Guarantor's Properties or income which are due and payable,
including interest and penalties, except where failure to
so pay or file would not have a Material Adverse Effect, or
has provided adequate reserves for the payment thereof if
required in accordance with GAAP for the payment thereof,
except such interest and penalties as are being contested
in good faith by appropriate actions or proceedings and for
which adequate reserves for the payment thereof as required
by GAAP have been provided.
(j) Titles, etc. The Guarantor has good title to, or
valid leasehold interests in, all its real and personal
Property material to its business, except for minor title
defects in title that do not interfere with its ability to
conduct its business as currently conducted or to utilize
such Properties for their intended purposes.
(k) Defaults. The Guarantor is not in default nor has
any event or circumstance occurred which, but for the
passage of time or the giving of notice, or both, would
constitute a default (in any respect that could reasonably
be expected to have a Material Adverse Effect) under any
loan or credit agreement, indenture, mortgage, deed of
trust, security agreement or other instrument or agreement
evidencing or pertaining to any Indebtedness of the
Guarantor, or under any material agreement or instrument to
which the Guarantor is a party or by which the Guarantor is
bound. No Default hereunder has occurred and is continuing.
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(l) No Material Misstatements. All factual
information, taken as a whole, in any written exhibit,
schedule or report prepared by or on behalf of the
Guarantor and furnished to the Guaranteed Parties by or at
the direction of the Guarantor in connection with the
negotiation of this Guaranty does not contain any material
misstatement of fact or omit to state a material fact
necessary to make the statements contained therein, in
light of the circumstances in which they were made, not
misleading.
(m) Investment Company Act. The Guarantor is not an
"investment company" or a company "controlled" by an
"investment company" that is incorporated in or organized
under the laws of the United States or any "State" as those
terms are defined in the Investment Company Act of 1940, as
amended. The execution and delivery by the Guarantor of
this Guaranty and its performance of the obligations
provided for herein, will not result in a violation of the
Investment Company Act of 1940, as amended.
(n) Public Utility Holding Company Act. The Guarantor
is not a "holding company," or a "subsidiary company" of a
"holding company," or an "affiliate" of a "holding company"
or of a "subsidiary company" of a "holding company," or a
"public utility" within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
(o) Solvency. The Guarantor is solvent, both before
and after taking into account the Merger.
(p) Stock. After the Merger, all of the issued and
outstanding capital stock of the Guarantor will be owned of
record and beneficially by ▇▇▇▇ Agriculture Company, free
and clear of any Liens, will be duly authorized, validly
issued and will be fully paid and non-assessable. After the
Merger, no subscription, warrant, option or other right to
purchase or acquire any capital stock of the Guarantor or
securities convertible into such interests will be
authorized or outstanding and there will be no commitment
of the Guarantor to issue any such units, warrants, options
or such other rights or securities.
(q) PI Acquisition Corporation. PI Acquisition
Corporation is a Delaware corporation that is a wholly
owned subsidiary of the Guarantor and such Person has no
assets and is currently conducting no business activities.
PI Holding Company is a Delaware corporation that is a
wholly owned subsidiary of PI Acquisition Corporation. PI
Holding Company has no assets and is currently conducting
no business activities.
10. Covenants. So long as any Loan, Revolving Credit
Exposure or other Obligation remains unpaid or outstanding, the
Guarantor will at all times comply with the following covenants:
(a) Conduct of Business and Maintenance of Existence.
The Guarantor will preserve, renew and keep in full force
and effect its corporate existence and its rights,
privileges and franchises necessary or desirable in the
normal conduct of its business.
(b) Non-Consolidation, Etc.. The Guarantor shall be
operated at all times in such a manner that its assets and
liabilities may not be substantively consolidated with
those of any other Person in the event of the bankruptcy or
insolvency of such Person. In this regard, the Guarantor
shall:
(i) not become involved in the day-to-day
management of any other Person, except as contemplated
herein and matters necessarily incident thereto;
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(ii) not (A) consolidate or merge with or into
any other Person, or (B) sell, lease or otherwise
transfer, directly or indirectly, all or substantially
all of its assets to any other Person;
(iii) engage only in investments in the Company;
(iv) maintain corporate records, books of
account, and a mailing address separate from each of
its Subsidiaries.
(v) maintain its assets separately from the
assets of any other Person (including through
maintenance of a separate bank account);
(vi) not guarantee the obligations of, or advance
funds for the payment of expenses or otherwise, to any
other Person except the Company;
(vii) conduct all business correspondence of the
Guarantor and other communications in the Guarantor's
own name and on the Guarantor's own stationery;
(viii)maintain separate financial statements;
(ix) not act as agent of any other Person in any capacity;
(x) maintain a board of directors that is
separate from (but may contain one or more of the same
members as) and independent of the boards of directors
of all other Persons;
(xi) create or acquire any Subsidiary other than
the Company, or acquire substantially all of the
assets or a business division of any other Person;
(xii) maintain, and cause its Subsidiaries to
maintain, the requisite legal formalities in order
that the Guarantor and its Subsidiaries may each be
treated as a legally separate entity from other
Persons; and
(xiii)engage in transactions with the Company and
its Subsidiaries only on terms and conditions
comparable to arm's-length transactions with Persons
that are not Affiliates of the Guarantor; provided
that the Guarantor may receive dividends from the
Company as permitted by the Credit Agreement and
transfer such dividends to its stockholder as
permitted by the Financing Documents.
(c) Payment of Taxes and Claims. The Guarantor will
pay (i) all taxes, assessments and governmental charges
imposed upon it or upon its Property; and (ii) all material
claims (including, but not limited to, claims for labor,
materials, supplies or services) which might, if unpaid,
become a Lien upon its Property, unless, in each case, the
validity of amount thereof is being contested in good faith
by appropriate action of proceedings and the Guarantor has
established adequate reserves in accordance with GAAP with
respect thereto.
(d) Further Assurances. The Guarantor will cure
promptly any defects in the execution and delivery of this
Guaranty and any other Financing Documents to which the
Guarantor is or becomes a party. The Guarantor at its own
expense, as promptly as practical, will execute and deliver
to the Guaranteed Parties upon request all such instruments
and take all such action in order
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fully to effectuate the purposes of this Guaranty and any
other Financing Documents to which the Guarantor is or
becomes a party.
(e) Insurance. The Guarantor will maintain, or cause
to be maintained on its behalf, insurance with respect to
its Properties and business as required by Section 5.1(e)
of Credit Agreement.
(f) Accounts and Records. The Guarantor will keep
proper books of record and account in accordance with GAAP.
(g) Right of Inspection. Upon reasonable notice, the
Guarantor will permit any officer, employee or agent of the
Guaranteed Parties to examine the Guarantor's books of
record and accounts, take copies and extracts therefrom,
and discuss the affairs, finances and accounts of the
Guarantor, as often and all at such reasonable times during
normal business hours as may be reasonably requested by any
Guaranteed Party.
(h) Reporting Covenants. So long as any Loan, any
Commitment, any Revolving Credit Exposure, or other
Obligation remains unpaid or outstanding, the Guarantor
will furnish to each Guaranteed Party:
(i) Events or Circumstances with respect to
Collateral. Promptly after the occurrence of any event
or circumstance concerning or changing any of the
Collateral that could have a Material Adverse Effect,
notice of such event or circumstance in reasonable
detail.
(ii) Shareholder Communications, Filings, Public
Announcements, Etc. Promptly upon the mailing, filing,
or making thereof, copies of all registration
statements, periodic reports and other documents
(excluding the related exhibits except to the extent
expressly requested by the Administrative Agent) filed
by the Guarantor in connection therewith from the
Securities and Exchange Commission (or any successor
thereto) or any national securities exchange.
(iii)Litigation. Promptly after (A) the
occurrence thereof, notice of the institution of or
any material adverse development in any action, suit
or proceeding or any governmental investigation or any
arbitration, before any court or arbitrator or any
governmental or administrative body, agency or
official, against the Company, Guarantor, or any
Subsidiary or any material Property of any thereof; or
(B) actual knowledge thereof, notice of the threat of
any such action, suit, proceeding, investigation or
arbitration, in either case in which the amount
involved is material and is not covered by insurance
or which, if adversely determined, could have a
Material Adverse Effect.
(iv) Other Information. With reasonable
promptness, such other information about the business
and affairs and financial condition of the Guarantor
as any Lender may reasonably request from time to
time.
(i) Stock. Guarantor shall not authorize or issue any
preferred stock or other equity securities having a
mandatory redemption right existing with regard thereto.
(j) Negative Pledge. The Guarantor will not create,
incur, assume, or suffer to exist any Lien upon its
Property now owned or hereafter acquired to secure any
Indebtedness of the
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Guarantor, any subsidiary or any other Person, other than
Liens granted by the Guarantor to secure the Obligations.
(k) Dividend Payments. In the event that the Guarantor
receives any dividend, payment, or distribution of any kind
not expressly permitted by Section 6.5 of the Credit
Agreement, the Guarantor shall hold such dividend, payment,
or other distribution in trust for the benefit of the
Guaranteed Parties, and shall immediately pay or deliver
the same to the Administrative Agent, for the benefit of
the Guaranteed Parties.
(l) Dissolution or Transfer of PI Acquisition
Entities. On or before thirty days after the Closing Date,
the Guarantor shall cause each of PI Acquisition
Corporation and PI Holding Company to be dissolved, merged
into the Guarantor or the ownership thereof transferred to
▇▇▇▇ Industries or an affiliate of ▇▇▇▇ Industries that is
not a Subsidiary of the Guarantor. The Guarantor shall
deliver to the Administrative Agent (i) copies of the
instruments of dissolution or merger that have been filed
with the Secretary of State of Delaware on or before the
expiration of such thirty day period or (ii) a certificate
stating that the ownership of such entities has been
transferred and that the Guarantor no longer has an
investment therein.
(m) Redemption of Discount Notes. On the Business Day
immediately following the Closing Date, the Guarantor shall
deposit or cause to be deposited with the appropriate
paying agent all funds necessary to redeem the Existing PM
Holdings Discount Notes, and to pay all accrued interest
thereon, and all premiums applicable thereto, if any.
12. No Waiver: Cumulative Remedies. No Guaranteed Party
shall by any act, delay, indulgence, omission, or otherwise be
deemed to have waived any right or remedy hereunder or to have
acquiesced in any Default or Event of Default or in any breach of
any of the terms and conditions hereof. No failure to exercise
and no delay in exercising, on the part of any Guaranteed Party,
any right, power, or privilege hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any
right, power, or privilege preclude any other or further exercise
thereof, or the exercise of any other power, privilege, or right.
A waiver by any Guaranteed Party of any right or remedy hereunder
on any one occasion shall not be construed as a bar to any right
or remedy which any such Person would have on any future
occasion. The rights and remedies herein provided are cumulative,
may be exercised singly or concurrently, and are not exclusive of
any rights or remedies provided by law.
13. Notices. All notices, requests, and other
communications to any party hereunder shall be in writing
(including bank wire, telecopy or similar teletransmission or
writing) and, in the case of the Guarantor, shall be given to the
Guarantor at the address or telecopy number of the Company now or
hereafter provided in the Credit Agreement, and in the case of
any Guaranteed Party, at the address or telecopy number for such
Person now or hereafter provided for in the Credit Agreement.
Each such notice, request, or other communication shall be
effective (i) if given by telecopier during regular business
hours, once such telecopy is transmitted to the telecopy number
specified in the Credit Agreement, (ii) if given by mail,
seventy-two (72) hours after such communication is deposited in
the mails with first class postage prepaid, addressed as
aforesaid, or (iii) if given by any other means (including,
without limitation, by air courier), when delivered at the
address specified in the Credit Agreement; provided, that,
notices to the Administrative Agent shall not be effective until
actually and physically received.
14. Entire Agreement. THIS GUARANTY, THE CREDIT AGREEMENT,
THE SECURITY INSTRUMENTS AND THE OTHER FINANCING DOCUMENTS EMBODY
THE ENTIRE AGREEMENT AND UNDERSTANDING BETWEEN THE GUARANTEED
PARTIES AND THE GUARANTOR AND THERETO AND SUPERSEDE ALL PRIOR
AGREEMENTS AND UNDERSTANDINGS BETWEEN SUCH PARTIES RELATING TO
THE
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SUBJECT MATTER HEREOF AND THEREOF. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
15. Governing Law; Submission to Jurisdiction, Etc.
(a) THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER AND UNDER THE NOTES SHALL BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK (INCLUDING SECTION 5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW, OR ANY SIMILAR SUCCESSOR PROVISION THERETO, BUT
EXCLUDING ALL OTHER CONFLICT-OF-LAWS RULES) AND TO THE EXTENT
CONTROLLING, LAWS OF THE UNITED STATES OF AMERICA.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
GUARANTY, THE NOTES OR THE OTHER FINANCING DOCUMENTS MAY BE
BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED
STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND, BY
EXECUTION AND DELIVERY OF THIS GUARANTY, THE GUARANTOR HEREBY
ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. THE
GUARANTOR HEREBY IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING BUT
NOT LIMITED TO, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON
THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING
IN SUCH RESPECTIVE JURISDICTIONS.
(c) EACH OF THE GUARANTOR AND THE GUARANTEED PARTIES (i)
IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS GUARANTY OR ANY FINANCING
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN; (ii) IRREVOCABLY
WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY RIGHT IT
MAY HAVE TO CLAIM OR RECOVER IN ANY SUCH LITIGATION ANY SPECIAL,
EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR DAMAGES OTHER
THAN, OR IN ADDITION TO, ACTUAL DAMAGES; (iii) CERTIFIES THAT NO
PARTY HERETO NOR ANY REPRESENTATIVE OR COUNSEL FOR ANY PARTY
HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE, OR IMPLIED THAT
SUCH PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE
THE FOREGOING WAIVER; AND (iv) ACKNOWLEDGES THAT IT HAS BEEN
INDUCED TO ENTER INTO THIS GUARANTY, THE OTHER FINANCING
DOCUMENTS AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY
BASED UPON, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS CONTAINED IN THIS SECTION.
(d) The Guarantor hereby irrevocably designates CT
Corporation System, with an office on the date hereof at ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as the designee, appointee,
and process agent of the Guarantor to receive, for and on behalf
of the Guarantor, service of process in such respective
jurisdictions in any legal action or proceeding with respect to
this Guaranty. It is understood that a copy of such process
served on such agent will be promptly forwarded by mail to the
Guarantor at its address set forth opposite its signature below,
but the failure of the Guarantor to receive such copy shall not
affect in any way the service of such process. The Guarantor
further irrevocably consents to the service of process of any of
the aforementioned courts in any such action or proceeding by the
mailing of copies thereof by registered or certified mail,
postage prepaid, to the Guarantor at its said address, such
service to become effective on the earlier to occur of (i) actual
receipt of such service of process, and (ii) thirty (30) days
after such mailing.
(e) Nothing herein shall affect the right of any Guaranteed
Party or any holder of a Note to serve process in any other
manner permitted by law or to commence legal proceedings or
otherwise proceed against the Guarantor in any other
jurisdiction.
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16. Severability. Any provision of this Guaranty which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions
hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
17. Paragraph Headings. The Paragraph headings used in this
Guaranty are for convenience of reference only and are not to
affect the construction hereof or be taken into consideration in
the interpretation hereof.
18. Interest. It is the intention of the parties hereto to
conform strictly to usury laws applicable to the Guaranteed
Parties and the Transactions. Accordingly, if the Transactions
would be usurious as to any Guaranteed Party under applicable
law, then, notwithstanding anything to the contrary in the Notes,
this Guaranty or in any other Financing Document, it is agreed as
follows: (i) the aggregate of all consideration which constitutes
interest as to any Guaranteed Party under applicable law that is
contracted for, taken, reserved, charged, or received by such
Person under the Notes, this Guaranty, or under any of the
Financing Documents or agreements or otherwise in connection with
the Transactions shall under no circumstances exceed the maximum
amount allowed by such applicable law, (ii) in the event that the
maturity of the Notes is accelerated for any reason, or in the
event of any required or permitted prepayment, then such
consideration that constitutes interest as to any Person under
applicable law may never include more than the maximum amount
allowed by such applicable law, and (iii) excess interest, if
any, provided for in this Guaranty or otherwise in connection
with the Transactions shall be canceled automatically and, if
theretofore paid, shall be credited by such Person on the
principal amount of the Obligations (or, to the extent that the
principal amount of the Obligations shall have been or would
thereby be paid in full, refunded by such Person to the Company).
The right to accelerate the maturity of the Notes does not
include the right to accelerate any interest which has not
otherwise accrued on the date of such acceleration, and the
Guaranteed Parties do not intend to collect any unearned interest
in the event of acceleration. All sums paid or agreed to be paid
to such Person for the use, forbearance or detention of sums
included in the Obligations shall, to the extent permitted by
applicable law, be amortized, prorated, allocated, and spread
throughout the full term of the Notes until payment in full so
that the rate or amount of interest on account of the Obligations
does not exceed the applicable usury ceiling, if any. As used in
this Section, the term "applicable law" shall mean the laws of
the State of Texas (or of any other jurisdiction whose laws may
be mandatorily applicable notwithstanding other provisions of
this Guaranty) or laws of the United States of America applicable
to such Person and the Transactions, which would permit such
Lender to contract for, charge, take, reserve or receive a
greater amount of interest than under Texas (or such other
jurisdiction's) law. To the extent that Article 5069-1.04 of the
Texas Revised Civil Statutes is relevant to the Guaranteed
Parties for the purpose of determining the Highest Lawful Rate,
each such Person hereby elects to determine the applicable rate
ceiling under such Article by the indicated (weekly) rate ceiling
from time to time in effect, subject to such Person's right
subsequently to change such method in accordance with applicable
law. In no event shall the provisions of Tex. Rev. Civ. Stat.
art. 5069-2.01 through 5069-8.06 or 5069-15.01 through 5069-15.11
be applicable to the Loans evidenced by the Notes.
19. Counterparts. This Guaranty may be executed in any
number of counterparts and by the different parties hereto on
separate counterparts, each of which when so executed and
delivered shall be an original but all of which shall together
constitute one and the same instrument.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK.]
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IN WITNESS WHEREOF, the undersigned has caused this
Guaranty to be duly executed and delivered by its duly authorized
officer on the day and year first above written.
PM HOLDINGS CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President & Chief
Executive Officer
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
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