Draft of January 26, 2001
================================================================================
THE XXXXXX XXXXXXX CORPORATION
and
R.M.E., INC.
FIRST SUPPLEMENT TO NOTE PURCHASE AGREEMENT
Dated as of January 30, 2001
Re: $45,000,000 7.37% Series 2001-1 Senior Notes, Tranche A
Due January 30, 2011
$10,000,000 7.27% Series 2001-1 Senior Notes, Tranche B
Due January 30, 2011
================================================================================
THE XXXXXX XXXXXXX CORPORATION
0000 Xx. Xxxxxx Xxxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
R.M.E., INC.
Dated as of
January 30, 2001
To the Purchasers Named in
Schedule A Hereto Which Are
Signatories to This Supplement
Ladies and Gentlemen:
This First Supplement to Note Purchase Agreement (the "First
Supplement") is between The Xxxxxx Xxxxxxx Corporation, a California corporation
("RMC"), and R.M.E., Inc., a California corporation ("RME," RMC and RME each
being hereinafter sometimes individually referred to as an "Obligor" and
collectively as the "Obligors"), jointly and severally, and the institutional
investors named on Schedule A attached hereto (the "Purchasers").
Reference is hereby made to that certain Note Purchase Agreement dated
as of March 28, 2000 (the "Note Purchase Agreement") among the Obligors and the
purchasers listed on Schedule A thereto. All capitalized terms not otherwise
defined herein shall have the same meaning as specified in the Note Purchase
Agreement. Reference is further made to Section 4.11 of the Note Purchase
Agreement which requires that, prior to the delivery of any Additional Notes,
the Obligors and each Additional Purchaser shall execute and deliver a
Supplement.
The Obligors, jointly and severally, hereby agree with the Purchasers
as follows:
1. The Obligors have authorized the issue and sale of (a) $45,000,000
aggregate principal amount of their 7.37% Series 2001-1 Senior Notes, Tranche A,
due January 30, 2011 (the "Tranche A Notes") and (b) $10,000,000 aggregate
principal amount of their 7.27% Series 2001-1 Notes, Tranche B, due January 30,
2011 (the "Tranche B Notes" and, together with the Tranche A Notes, the "Series
2001-1 Notes"). The Series 2001-1 Notes, together with the Series 2000-1 Notes
initially issued pursuant to the Note Purchase Agreement and each series of
Additional Notes which may from time to time hereafter be issued pursuant to the
provisions of Section 2.2 of the Note Purchase Agreement, are collectively
referred to as the "Notes" (such term shall also include any such notes issued
in substitution therefor pursuant to Section 13 of the Note Purchase Agreement).
The Tranche A Notes and the Tranche B Notes shall be substantially in the form
set out in Exhibit 1-A and Exhibit 1-B hereto, respectively, with such changes
therefrom, if any, as may be approved by the Purchasers and the Obligors.
-1-
2. Subject to the terms and conditions hereof and as set forth in the
Note Purchase Agreement and on the basis of the representations and warranties
hereinafter set forth, the Obligors agree to issue and sell to each Purchaser,
and each Purchaser agrees to purchase from the Obligors, Series 2001-1 Notes in
the principal amount and tranche set forth opposite such Purchaser's name on
Schedule A hereto at a price of 100% of the principal amount and tranche thereof
on the closing date hereafter mentioned.
3. The sale and purchase of the Series 2001-1 Notes to be purchased by
each Purchaser shall occur at the offices of Xxxxxxx and Xxxxxx, 000 Xxxx Xxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, at 11:00 A.M. Chicago time, at a closing (the
"Closing") on January 30, 2001 or on such other Business Day thereafter on or
prior to January 31, 2001 as may be agreed upon by the Obligors and the
Purchasers. At the Closing, the Obligors will deliver to each Purchaser the
Series 2001-1 Notes of the tranche to be purchased by such Purchaser in the form
of a single Series 2001-1 Note (or such greater number of Series 2001-1 Notes in
denominations of at least $100,000 as such Purchaser may request) dated the date
of the Closing and registered in such Purchaser's name (or in the name of such
Purchaser's nominee), against delivery by such Purchaser to the Obligors or
their order of immediately available funds in the amount of the purchase price
therefor by wire transfer of immediately available funds for the account of the
Obligors to account number 00000-00000 at Bank of America, 000 Xxxxxxxxxx
Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx, XXX Xx. 000000000. If, at the Closing, the
Obligors shall fail to tender such Series 2001-1 Notes to any Purchaser as
provided above in this Section 3, or any of the conditions specified in Section
4 shall not have been fulfilled to any Purchaser's satisfaction, such Purchaser
shall, at such Purchaser's election, be relieved of all further obligations
under this First Supplement, without thereby waiving any rights such Purchaser
may have by reason of such failure or such nonfulfillment.
4. The obligation of each Purchaser to purchase and pay for the Series
2001-1 Notes to be sold to such Purchaser at the Closing is subject to the
fulfillment to such Purchaser's satisfaction, prior to the Closing, of each of
the conditions set forth in Section 4 of the Note Purchase Agreement with
respect to the Series 2001-1 Notes to be purchased at the Closing, and to the
following additional conditions:
(a) Except as supplemented, amended or superceded by the
representations and warranties set forth in Exhibit A hereto, each of
the representations and warranties of the Obligors set forth in Section
5 of the Note Purchase Agreement shall be correct as of the date of
Closing and each Obligor shall have delivered to each Purchaser an
Officer's Certificate, dated the date of the Closing certifying that
such condition has been fulfilled.
(b) Contemporaneously with the Closing, the Obligors shall
sell to each Purchaser, and each Purchaser shall purchase, the Series
2001-1 Notes to be purchased by such Purchaser at the Closing as
specified in Schedule A.
5. (a) Required Payments.
(i) Tranche A Notes. On January 30, 2011 the entire
principal amount of the Tranche A Notes shall become due and
payable.
-2-
(ii) Tranche B Notes. On January 30, 2011 the entire
principal amount of the Tranche B Notes shall become due and
payable.
(b) Optional Prepayments. The Series 2001-1 Notes are subject to prepayment
at the option of the Company in the manner and with the effect set forth in
Section 8.2 of the Note Purchase Agreement.
(c) Prepayment of Notes upon an Asset Disposition. The Series 2001-1 Notes
are subject to prepayment at the option of the Company in the manner and with
the effect set forth in Section 8.3 of the Note Purchase Agreement.
(d) Allocation of Partial Prepayments. In the case of each partial
prepayment of the Series 2001-1 Notes pursuant to the provisions of Section 8.2
of the Note Purchase Agreement, the principal amount of the Series 2001-1 Notes
to be prepaid shall be allocated among all of the Series 2001-1 Notes at the
time outstanding in proportion, as nearly as practicable, to the respective
unpaid principal amounts thereof.
(e) Make-Whole Amount for Series 2001-1 Notes. The term "Make-Whole
Amount" means, with respect to any Series 2001-1 Note of either tranche, an
amount equal to the excess, if any, of the Discounted Value of the Remaining
Scheduled Payments with respect to the Called Principal of such Series 2001-1
Note of such tranche over the amount of such Called Principal, provided that the
Make-Whole Amount may in no event be less than zero. For the purposes of
determining the Make-Whole Amount, the following terms have the following
meanings:
"Called Principal" means, with respect to any Series 2001-1
Note of either tranche, the principal of such Series 2001-1 Note that
is to be prepaid pursuant to Section 8.2 of the Note Purchase Agreement
or has become or is declared to be immediately due and payable pursuant
to Section 12.1 of the Note Purchase Agreement, as the context
requires.
"Discounted Value" means, with respect to the Called Principal
of any Series 2001-1 Note of either tranche, the amount obtained by
discounting all Remaining Scheduled Payments with respect to such
Called Principal from their respective scheduled due dates to the
Settlement Date with respect to such Called Principal, in accordance
with accepted financial practice and at a discount factor (applied on
the same periodic basis as that on which interest on the Series 2001-1
Notes is payable) equal to the Reinvestment Yield with respect to such
Called Principal.
"Reinvestment Yield" means, with respect to the Called
Principal of any Series 2001-1 Note of either tranche, 0.50% over the
yield to maturity implied by (i) the yields reported, as of 10:00 A.M.
(New York City time) on the second Business Day preceding the
Settlement Date with respect to such Called Principal, on the display
designated as "PX-1" on the Bloomberg Financial Market Services Screen
(or such other display as may replace Page PX-1 on Bloomberg Financial
Market Services Screen) for actively traded U.S. Treasury securities
having a maturity equal to the Remaining Average Life of such Called
Principal as of such Settlement Date, or (ii) if such yields are not
reported as of such time or the yields reported as
-3-
of such time are not ascertainable, the Treasury Constant Maturity
Series Yields reported, for the latest day for which such yields
have been so reported as of the second Business Day preceding the
Settlement Date with respect to such Called Principal, in Federal
Reserve Statistical Release H. 15 (519) (or any comparable
successor publication) for actively traded U.S. Treasury
securities having a constant maturity equal to the Remaining
Average Life of such Called Principal as of such Settlement Date.
Such implied yield will be determined, if necessary, by (a)
converting U.S. Treasury bill quotations to bond-equivalent
yields in accordance with accepted financial practice and (b)
interpolating linearly between (1) the actively traded U.S.
Treasury security with a maturity closest to and greater than the
Remaining Average Life and (2) the actively traded U.S. Treasury
security with a maturity closest to and less than the Remaining
Average Life.
"Remaining Average Life" means, with respect to any Called
Principal, the number of years (calculated to the nearest one-twelfth
year) obtained by dividing (i) such Called Principal into (ii) the sum
of the products obtained by multiplying (a) the principal component of
each Remaining Scheduled Payment with respect to such Called Principal
by (b) the number of years (calculated to the nearest one-twelfth year)
that will elapse between the Settlement Date with respect to such
Called Principal and the scheduled due date of such Remaining Scheduled
Payment.
"Remaining Scheduled Payments" means, with respect to the
Called Principal of any Series 2001-1 Note of either tranche, all
payments of such Called Principal and interest thereon that would be
due after the Settlement Date with respect to such Called Principal if
no payment of such Called Principal were made prior to its scheduled
due date, provided that if such Settlement Date is not a date on which
interest payments are due to be made under the terms of the Series
2001-1 Notes, then the amount of the next succeeding scheduled interest
payment will be reduced by the amount of interest accrued to such
Settlement Date and required to be paid on such Settlement Date
pursuant to Section 8.2 or 12.1 of the Note Purchase Agreement.
"Settlement Date" means, with respect to the Called Principal
of any Series 2001-1 Note of either tranche, the date on which such
Called Principal is to be prepaid pursuant to Section 8.2 of the Note
Purchase Agreement or has become or is declared to be immediately due
and payable pursuant to Section 12.1 of the Note Purchase Agreement, as
the context requires.
6. Each Purchaser represents and warrants that the representations and
warranties set forth in Section 6 of the Note Purchase Agreement are true and
correct on the date hereof with respect to the purchase of the Series 2001-1
Notes by such Purchaser.
7. The Purchasers and the Obligors agree that, with respect to the Series
2001-1 Notes:
(a) Section 10.2 of the Note Purchase Agreement shall read as
follows:
-4-
"Section 10.2. Consolidated Adjusted Net Worth. The
Obligors will not at any time permit Consolidated Adjusted Net
Worth to be an amount less than the sum of (a) $250,000,000
plus (b) 25% of cumulative Consolidated Net Income for each
Specified Fiscal Period ending after December 31, 2000,
provided that notwithstanding that Consolidated Net Income for
any elapsed Specified Fiscal Period may be a deficit figure,
no reduction as a result thereof shall be made in the sum to
be maintained pursuant hereto."
(b) The term "Specified Assets" set forth in Schedule B to the Note
Purchase Agreement shall read as follows:
" `Specified Assets' means assets that are the subject of
Specified Transactions to which RMC or any Restricted
Subsidiary is a party, which assets are, for any purpose
(including tax, state real estate, commercial law or
bankruptcy purposes), treated as assets of RMC or any
Restricted Subsidiary. Specified Assets shall be valued in the
manner such assets are valued for tax purposes."
8. The Obligors and each Purchaser agree to be bound by and comply with
the terms and provisions of the Note Purchase Agreement as fully and completely
as if such Purchaser were an original signatory to the Note Purchase Agreement.
-5-
The execution hereof shall constitute a contract between the Obligors
and the Purchaser(s) for the uses and purposes hereinabove set forth, and this
agreement may be executed in any number of counterparts, each executed
counterpart constituting an original but all together only one agreement.
THE XXXXXX XXXXXXX CORPORATION
By _______________________________________
Name:
Title:
R.M.E., INC.
By _______________________________________
Name:
Title:
-6-
[The Xxxxxx Xxxxxxx Corporation and R.M.E., Inc. First Supplement]
Accepted as of ___________________:
FIRST COLONY LIFE INSURANCE COMPANY
By__________________________________
Name:
Title:
[The Xxxxxx Xxxxxxx Corporation and R.M.E., Inc. First Supplement]
-7-
Accepted as of ___________________:
METROPOLITAN LIFE INSURANCE COMPANY
By__________________________________
Name:
Title:
[The Xxxxxx Xxxxxxx Corporation and R.M.E., Inc. First Supplement]
-8-
Accepted as of ___________________:
GENERAL AMERICAN LIFE INSURANCE COMPANY
By Metropolitan Life Insurance Company,
as investment manager
By _____________________________________
Name:
Title:
[The Xxxxxx Xxxxxxx Corporation and R.M.E., Inc. First Supplement]
-9-
Accepted as of ___________________:
C.M. LIFE INSURANCE COMPANY
By Xxxxx X. Xxxxxx & Company Inc.,
as Investment Sub-Adviser
By __________________________________
Name:
Title:
[The Xxxxxx Xxxxxxx Corporation and R.M.E., Inc. First Supplement]
-10-
Accepted as of ___________________:
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By Xxxxx X. Xxxxxx & Company Inc.,
as Investment Adviser
By_____________________________________
Name:
Title:
[The Xxxxxx Xxxxxxx Corporation and R.M.E., Inc. First Supplement]
-11-
Accepted as of ___________________:
MUTUAL OF OMAHA INSURANCE COMPANY
By_____________________________________
Name:
Title:
[The Xxxxxx Xxxxxxx Corporation and R.M.E., Inc. First Supplement]
-12-
Accepted as of ___________________:
XXXXXXX NATIONAL LIFE INSURANCE COMPANY OF
NEW YORK
By PPM America, Inc.,
as attorney in fact, on behalf of
Xxxxxxx National Life Insurance
Company of New York
By _______________________________________
Name:
Title:
[The Xxxxxx Xxxxxxx Corporation and R.M.E., Inc. First Supplement]
-13-
Accepted as of ___________________:
XXXXXXX NATIONAL LIFE INSURANCE COMPANY OF
NEW YORK
By PPM America, Inc., as attorney in
fact, on behalf of Xxxxxxx National
Life Insurance Company of New York
By _______________________________________
Name:
Title:
[The Xxxxxx Xxxxxxx Corporation and R.M.E., Inc. First Supplement]
-14-
SCHEDULE A
(to First Supplement)
INFORMATION RELATING TO PURCHASERS
PRINCIPAL AMOUNT OF
NAMES AND ADDRESSES OF PURCHASERS TRANCHE A NOTES TO BE PURCHASED
FIRST COLONY LIFE INSURANCE COMPANY $15,000,000
c/o GE Financial Assurance
Account: First Colony Life Insurance Company
Two Union Square, 000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Investment Department, Private Placements
Telephone Number: (000) 000-0000
Telefacsimile Number: (000) 000-0000
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "The
Xxxxxx Xxxxxxx Corporation and R.M.E. Inc., 7.37% Series 2001-1 Senior Notes,
Tranche A due 2011, PPN 77035* AE 7" principal, premium or interest) to:
Bankers Trust Company 00 Xxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 SWIFT
Code: BKTR US 33 ABA #000000000 Account Number 00-000-000 FCC #098069
Ref: security description, coupon, maturity, PPN #, identify principal
or interest
Notices
All notices with respect to payments and written confirmation of each such
payment to be addressed:
GE Financial Assurance
Account: First Colony Life Insurance Company
Two Union Square, 000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Investment Accounting
Telephone Number: (000) 000-0000
Telefacsimile Number: (000) 000-0000
SCHEDULE A
(to First Supplement)
All other notices and communications (including original note agreement,
conformed copy of the note agreement, amendment requests, financial statements)
to be addressed as first provided above.
Name of Nominee in which Notes are to be issued: XXXXXXX & CO.
Taxpayer I.D. Number: 00-0000000
A-2
PRINCIPAL AMOUNT OF
NAMES AND ADDRESSES OF PURCHASERS TRANCHE A NOTES TO BE PURCHASED
METROPOLITAN LIFE INSURANCE COMPANY $5,000,000
Private Placement Unit
000 Xxxxxxx Xxxxxx
Xxxxxxx Xxxxxxx, Xxx Xxxxxx 00000-0633
Attention: Director
Fax Number: (000) 000-0000
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "The
Xxxxxx Xxxxxxx Corporation and R.M.E. Inc., 7.37% Series 2001-1 Senior Notes,
Tranche A due 2011, PPN 77035* AE 7" principal, premium or interest) to:
The Chase Manhattan Bank
ABA #000000000
Account Name: Metropolitan Life Insurance Company
Account Number 002-2-410591
Notices
All notices and communications, including notices with respect to payments and
written confirmation of each such payment, to be addressed to:
Metropolitan Life Insurance Company
Private Placement Unit
000 Xxxxxxx Xxxxxx
Xxxxxxx Xxxxxxx, Xxx Xxxxxx 00000-0633
Attention: Director
Fax Number: 000-000-0000
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
A-3
PRINCIPAL AMOUNT OF
NAMES AND ADDRESSES OF PURCHASERS TRANCHE A NOTES TO BE PURCHASED
GENERAL AMERICAN LIFE INSURANCE COMPANY $10,000,000
c/o Metropolitan Life Insurance Company
Private Placement Unit
000 Xxxxxxx Xxxxxx
Xxxxxxx Xxxxxxx, Xxx Xxxxxx 00000-0633
Attention: Director
Fax Number: (000) 000-0000
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "The
Xxxxxx Xxxxxxx Corporation and R.M.E. Inc., 7.37% Series 2001-1 Senior Notes,
Tranche A due 2011, PPN 77035* AE 7" principal, premium or interest) to:
The Chase Manhattan Bank
ABA #000000000
Account Name: General American Life Insurance Company
DDA# 323-890946
Notices
All notices and communications, including notices with respect to payments and
written confirmation of each such payment, to be addressed to:
General American Life Insurance Company
c/o Metropolitan Life Insurance Company
Private Placement Unit
000 Xxxxxxx Xxxxxx
Xxxxxxx Xxxxxxx, Xxx Xxxxxx 00000-0633
Attention: Director
Fax Number: 000-000-0000
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
A-4
PRINCIPAL AMOUNT OF
NAMES AND ADDRESSES OF PURCHASERS TRANCHE A NOTES TO BE PURCHASED
C.M. LIFE INSURANCE COMPANY $1,200,000
c/o MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY
c/o Xxxxx X. Xxxxxx & Company Inc.
0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Securities Investment Division
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "The
Xxxxxx Xxxxxxx Corporation and R.M.E. Inc., 7.37% Series 2001-1 Senior Notes,
Tranche A due 2011, PPN 77035* AE 7" principal premium or interest) to:
Citibank, N.A.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
ABA No. 000000000
For Segment 43 - Universal Life Account Number 4068-6561
Re: Description of security, principal and interest split
With telephone advice of payment to the Securities Custody and Collection
Department of Xxxxx X. Xxxxxx & Company Inc. at (000) 000-0000 or (413)
744-5718.
Notices
All notices and communications to be addressed as first provided above, except
notices with respect to payments to be addressed Attention: Securities Custody
and Collection Department, F 381.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
A-5
PRINCIPAL AMOUNT OF
NAMES AND ADDRESSES OF PURCHASERS TRANCHE A NOTES TO BE PURCHASED
MASSACHUSETTS MUTUAL LIFE INSURANCE $1,200,000
COMPANY
c/o Xxxxx X. Xxxxxx & Company Inc.
0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Securities Investment Division
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "The
Xxxxxx Xxxxxxx Corporation and R.M.E. Inc., 7.37% Series 2001-1 Senior Notes,
Tranche A due 2011, PPN 77035* AE 7" principal, premium or interest) to:
Chase Manhattan Bank, N.A.
4 Chase MetroTech Center
New York, New York 10081
ABA No. 000000000
For MassMutual IFM Non-Traditional Account Number 910-2509073
Re: Description of security, principal and interest split
With telephone advice of payment to the Securities Custody and Collection
Department of Xxxxx X. Xxxxxx & Company Inc. at (000) 000-0000 or (413)
744-5718.
Notices
All notices and communications to be addressed as first provided above, except
notices with respect to payments to be addressed Attention: Securities Custody
and Collection Department, F 381.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
A-6
PRINCIPAL AMOUNT OF
NAMES AND ADDRESSES OF PURCHASERS TRANCHE A NOTES TO BE PURCHASED
MASSACHUSETTS MUTUAL LIFE INSURANCE $2,400,000
COMPANY
c/o Xxxxx X. Xxxxxx & Company Inc.
0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Securities Investment Division
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "The
Xxxxxx Xxxxxxx Corporation and R.M.E. Inc., 7.37% Series 2001-1 Senior Notes,
Tranche A due 2011, PPN 77035* AE 7" principal, premium or interest) to:
Citibank, N.A.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
ABA No. 000000000
For MassMutual Spot Priced Contract Account Number 3890-4953
Re: Description of security, principal and interest split
With telephone advice of payment to the Securities Custody and Collection
Department of Xxxxx X. Xxxxxx & Company Inc. at (000) 000-0000 or (413)
744-5718.
Notices
All notices and communications to be addressed as first provided above, except
notices with respect to payments to be addressed Attention: Securities Custody
and Collection Department, F 381.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
A-7
PRINCIPAL AMOUNT OF
NAMES AND ADDRESSES OF PURCHASERS TRANCHE A NOTES TO BE PURCHASED
MASSACHUSETTS MUTUAL LIFE INSURANCE $4,200,000
COMPANY
c/o Xxxxx X. Xxxxxx & Company Inc.
0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Securities Investment Division
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "The
Xxxxxx Xxxxxxx Corporation and R.M.E. Inc., 7.37% Series 2001-1 Senior Notes,
Tranche A due 2011, PPN 77035* AE 7" principal, premium or interest) to:
Citibank, N.A.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
ABA No. 000000000
For MassMutual Long-Term Pool Account Number 4067-3488
Re: Description of security, principal and interest split
With telephone advice of payment to the Securities Custody and Collection
Department of Xxxxx X. Xxxxxx & Company Inc. at (000) 000-0000 or (413)
744-5718.
Notices
All notices and communications to be addressed as first provided above, except
notices with respect to payments to be addressed Attention: Securities Custody
and Collection Department, F 381.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
A-8
PRINCIPAL AMOUNT OF
NAMES AND ADDRESSES OF PURCHASERS TRANCHE A NOTES TO BE PURCHASED
MASSACHUSETTS MUTUAL LIFE INSURANCE $1,000,000
COMPANY
c/o Xxxxx X. Xxxxxx & Company Inc.
0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Securities Investment Division
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "The
Xxxxxx Xxxxxxx Corporation and R.M.E. Inc., 7.37% Series 2001-1 Senior Notes,
Tranche A due 2011, PPN 77035* AE 7" principal, premium or interest) to:
Chase Manhattan Bank, N.A.
4 Chase MetroTech Center
New York, NY 10081
ABA No. 000000000
For MassMutual Pension Management Account Number 910-2594018
Re: Description of security, principal and interest split
With telephone advice of payment to the Securities Custody and Collection
Department of Xxxxx X. Xxxxxx & Company Inc. at (000) 000-0000 or (413)
744-5718.
Notices
All notices and communications to be addressed as first provided above, except
notices with respect to payments to be addressed Attention: Securities Custody
and Collection Department, F 381.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
A-9
PRINCIPAL AMOUNT OF
NAMES AND ADDRESSES OF PURCHASERS TRANCHE B NOTES TO BE PURCHASED
XXXXXXX NATIONAL LIFE INSURANCE COMPANY $8,000,000
0000 Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "The
Xxxxxx Xxxxxxx Corporation and R.M.E. Inc., 7.27% Series 2001-1 Senior Notes,
Tranche B due 2011, PPN 77035* AF 4" principal, premium or interest) to:
The Bank of New York
ABA # 000-000-000
BNF: IOC 566
Attn: Income
Ref: CUSIP #, Acct # 187243
Notices
All notices and communications with respect to payment/rate notices, to be faxed
to (Operations Contact):
PPM America Inc.
000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Private Placements - Xxxxx Xxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
All notices, waivers, amendments, consents, financial information and COPIES of
all original notes and credit documents should be sent to (Credit Contact):
PPM America, Inc.
000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-1228
Attention: Private Placements - Xxxxxx Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
and
Xxxxxxx National Life Insurance Company
A-10
000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-1228
Attention: Investment Accounting - Xxxx Xxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
A-11
PRINCIPAL AMOUNT OF
NAMES AND ADDRESSES OF PURCHASERS TRANCHE B NOTES TO BE PURCHASED
XXXXXXX NATIONAL LIFE INSURANCE COMPANY $2,000,000
OF NEW YORK
0000 Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "The
Xxxxxx Xxxxxxx Corporation and R.M.E. Inc., 7.27% Series 2001-1 Senior Notes,
Tranche B due 2011, PPN 77035* AF 4" principal, premium or interest) to:
Bank of New York
IOC 363 - Custody
ABA # 000-000-000
A/C # 187271
A/C Name: JNL - JNLNY Gen. Acct.
Ref: [Security Description, CUSIP, Payment Type]
Notices
All notices and communications with respect to payment/rate notices, to be faxed
to (Operations Contact):
PPM America Inc.
000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Private Placements - Xxxxxxx Xxxxxxx/Xxxxx Xxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
All notices, waivers, amendments, consents, financial information and COPIES of
all original notes and credit documents should be sent to (Credit Contact):
PPM America, Inc.
000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-1228
Attn: Private Placements - Xxxxxx Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
and
A-12
Xxxxxxx National Life Insurance Company
000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-1228
Attn: Investment Accounting - Xxxx Xxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
A-13
PRINCIPAL AMOUNT OF
NAMES AND ADDRESSES OF PURCHASERS TRANCHE A NOTES TO BE PURCHASED
MUTUAL OF OMAHA INSURANCE COMPANY $5,000,000
Mutual of Omaha Plaza
Omaha, Nebraska 68175-1011
Attention: 4-Investment Loan Administration
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "The
Xxxxxx Xxxxxxx Corporation and R.M.E. Inc., 7.37% Series 2001-1 Senior Notes,
Tranche A due 2011, PPN 77035* AE 7" principal, premium or interest) to:
Chase Manhattan Bank
ABA #000-000-000
Private Income Processing
for credit to: Mutual of Omaha Insurance Company
Account Number 900-9000200
a/c G07096
PPN: 77035* AE 7
Interest Amount: ____________________________________________
Principal Amount: ___________________________________________
Notices
All notices of payments, on or in respect of the Notes and written confirmation
of each such payment, corporate actions and reorganization notifications to:
The Chase Manhattan Bank
0 Xxx Xxxx Xxxxx-00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Investment Processing-X. Xxxxxxxxx
a/c: G07096
All other notices and communications (i.e., quarterly/annual reports, tax
filings, modifications, waivers regarding the indenture) to be addressed as
first provided above.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
A-14
SUPPLEMENTAL REPRESENTATIONS
The Obligors, jointly and severally, represent and warrant to each
Purchaser that except as hereinafter set forth in this Exhibit A, each of the
representations and warranties set forth in Section 5 of the Note Purchase
Agreement is true and correct as of the date hereof with respect to the Series
2001-1 Notes with the same force and effect as if each reference to "Series
2000-1 Notes" set forth therein was modified to refer to the "Series 2001-1
Notes" and each reference to "this Agreement" therein was modified to refer to
the Note Purchase Agreement as supplemented by the First Supplement. The Section
references hereinafter set forth correspond to the similar sections of the Note
Purchase Agreement which are supplemented hereby:
Section 5.3. Disclosure. The Note Purchase Agreement, the documents,
certificates or other writings delivered to each Purchaser by or on behalf of
the Obligors in connection with the transactions contemplated by the Note
Purchase Agreement and the First Supplement and the financial statements listed
in Schedule 5.5 to the First Supplement, taken as a whole, do not contain any
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein not misleading in light of the circumstances
under which they were made. Since June 30, 2000, there has been no change in the
financial condition, operations, business, properties or prospects of either
Obligor or any of their Subsidiaries except changes that individually or in the
aggregate could not reasonably be expected to have a Material Adverse Effect.
There is no fact known to either of the Obligors that could reasonably be
expected to have a Material Adverse Effect that has not been set forth herein or
in the other documents, certificates and other writings delivered to each
Purchaser by or on behalf of the Obligors specifically for use in connection
with the transactions contemplated hereby.
Section 5.4. Organization and Ownership of Shares of Restricted
Subsidiaries. (a) Schedule 5.4 to the First Supplement contains (except as noted
therein) complete and correct lists (i) of the Restricted and Unrestricted
Subsidiaries, showing, as to each Subsidiary, the correct name thereof, the
jurisdiction of its organization, and the percentage of shares of each class of
its capital stock or similar equity interests outstanding owned by the Obligors
and each other Subsidiary, and all other Investments of the Obligors and the
Restricted Subsidiaries, (ii) of the Obligors' Affiliates, other than
Subsidiaries, and (iii) of the Obligors' directors and senior officers.
Section 5.5. Financial Statements. The Obligors have delivered to each
Purchaser copies of the financial statements of RMC and its Subsidiaries listed
on Schedule 5.5 to the First Supplement. All of said financial statements
(including in each case the related schedules and notes) fairly present in all
material respects the consolidated financial position of RMC and its
Subsidiaries as of the respective dates specified in such financial statements
and the consolidated results of their operations and cash flows for the
respective periods so specified and have been prepared in accordance with GAAP
consistently applied throughout the periods involved except as set forth in the
notes thereto (subject, in the case of any interim financial statements, to
normal year-end adjustments).
Section 5.13. Private Offering by the Obligors. Neither the Obligors nor
anyone acting on their behalf has offered the Series 2001-1 Notes or any similar
securities for sale to, or solicited any offer to buy any of the same from, or
EXHIBIT A
(to First Supplement)
otherwise approached or negotiated in respect thereof with, any Person other
than the Purchasers and not more than 8 other Institutional Investors, each of
which has been offered the Series 2001-1 Notes at a private sale for investment,
and except that the Series 2000-1 Notes were offered and sold by the Obligors
and persons acting on their behalf under circumstances which, if such offering
and sale were integrated with the offering and sale of the Series 2001-1 Notes,
would not require the registration of the Series 2000-1 Notes or the Series
2001-1 Notes under the Securities Act. Neither the Obligors nor anyone acting on
their behalf has taken, or will take, any action that would subject the issuance
or sale of the Notes to the registration requirements of Section 5 of the
Securities Act.
Section 5.14. Use of Proceeds; Margin Regulations. The Obligors will
apply the proceeds of the sale of the Series 2001-1 Notes to as set forth in
Schedule 5.14 to the First Supplement. No part of the proceeds from the sale of
the Series 2001-1 Notes pursuant to the First Supplement will be used, directly
or indirectly, for the purpose of buying or carrying any margin stock within the
meaning of Regulation U of the Board of Governors of the Federal Reserve System
(12 CFR 221), or for the purpose of buying or carrying or trading in any
securities under such circumstances as to involve the Obligors in a violation of
Regulation X of said Board (12 CFR 224) or to involve any broker or dealer in a
violation of Regulation T of said Board (12 CFR 220). As used in this Section,
the terms "margin stock" and "purpose of buying or carrying" shall have the
meanings assigned to them in said Regulation U.
Section 5.15. Existing Indebtedness; Future Liens. (a) Schedule 5.15 to
the First Supplement sets forth a complete and correct list of all outstanding
Indebtedness and Specified Transactions of the Obligors and the Subsidiaries as
of December 31, 2000, since which date there has been no Material change in the
amounts, interest rates, sinking funds, installment payments or maturities of
the Indebtedness of the Obligors or the Subsidiaries. Neither the Obligors nor
any Subsidiary is in default and no waiver of default is currently in effect, in
the payment of any principal or interest on any Indebtedness of the Obligors or
such Subsidiary and no event or condition exists with respect to any
Indebtedness of the Obligors or any Subsidiary that would permit (or that with
notice or the lapse of time, or both, would permit) one or more Persons to cause
such Indebtedness to become due and payable before its stated maturity or before
its regularly scheduled dates of payment.
A-2
SCHEDULE 5.4
SUBSIDIARIES OF THE OBLIGORS AND OWNERSHIP OF SUBSIDIARY STOCK
1. RESTRICTED SUBSIDIARIES:
JURISDICTION OF
NAME INCORPORATION PERCENT OF VOTING
OF SUBSIDIARY STOCK OWNER OWNERSHIP
Xxxxxx Xxxxxxx Affiliates California 100% The Xxxxxx Xxxxxxx Corporation
dba Xxxxxx Xxxxxx
R.M.E., Inc. California 100% The Xxxxxx Xxxxxxx Corporation
Xxxxxx Xxxxxxx Foreign Barbados 100% The Xxxxxx Xxxxxxx Corporation
Sales Corp.
Vintage Chips Co. California 100% The Xxxxxx Xxxxxxx Corporation
Xxxxxx Xxxxxxx Imports, Inc. California 100% The Xxxxxx Xxxxxxx Corporation
Xxxxxx S.A.R.L. France 100% The Xxxxxx Xxxxxxx Corporation
Xxxxxx Xxxxxxx GmbH. Germany 100% The Xxxxxx Xxxxxxx Corporation
Xxxxxxxx Vineyard & Winery California 100% The Xxxxxx Xxxxxxx Corporation
Xxxxx Xxxxxxxx & Winery, California 100% R.M.E., Inc.
Inc.
Xxxxxx Xxxxxxx Winery California 100% R.M.E., Inc.
Xxxxxx Xxxxxxx Properties, California 100% R.M.E., Inc.
Inc.
Xxxxxx Xxxxxxx Export Sales California 100% Xxxxxx Xxxxxxx Winery
Company
SCHEDULE 5.4
(to Note Purchase Agreement)
JURISDICTION OF
NAME INCORPORATION PERCENT OF VOTING
OF SUBSIDIARY STOCK OWNER OWNERSHIP
Xxxxxx Xxxxxxx Investments California 100% Xxxxxx Xxxxxxx Properties, Inc.
Inversiones RMC Limitada Chile 100% The Xxxxxx Xxxxxxx Corporation
(99%)
R.M.E., Inc. (1%)
5.4-2
SCHEDULE 5.5
Financial Statements
I. The Xxxxxx Xxxxxxx Corporation SEC Form 10-Q for the fiscal quarter ended
September 30, 2000.
II. The Xxxxxx Xxxxxxx Corporation SEC Form 10-K for the fiscal year ended June
30, 2000.
SCHEDULE 5.5
(to Note Purchase Agreement)
SCHEDULE 5.14
Use of Proceeds
On the date of the Closing, RMC shall transfer to RME $55,000,000
aggregate principal amount of the liabilities outstanding under those certain
revolving lines of credit with Bank of America and Rabobank Nederland under and
pursuant to which the RMC and RME are jointly and severally obligated. Upon
receipt by RMC of the $55,000,000 proceeds from the sale of the Notes, RMC will
transfer 100% of the proceeds to RME and RME will thereupon use $27,500,000 of
the proceeds to pay down the Bank of America line of credit and $27,500,000 of
the proceeds to pay down the Rabobank line of credit.
SCHEDULE 5.14
(to Note Purchase Agreement)
SCHEDULE 5.15
EXISTING INDEBTEDNESS
BORROWED MONEY
LENDER BALANCE
Bank of America Revolving Line of Credit $72,500,000
Rabobank Nederland Revolving Line of Credit 64,000,000
Metropolitan Life Insurance Company 31,178,000
Franklin Life Insurance Company 7,794,500
Xxxx Xxxxxxx--Central Coast 3,650,702
Xxxx Xxxxxxx--Carneros #1 6,326,134
Xxxx Xxxxxxx--Carneros #2 3,492,487
Mass Mutual Life Insurance Co.--IFM 7,973,279
Mass Mutual Life Insurance Co.--Pension MG 4,293,304
Variable Annuity Life Insurance Company 6,133,292
American General Life Insurance Company 6,133,292
Lauderdale 211,142
American United Life 4,000,000
United of Omaha Life 5,000,000
Guardian Life 10,000,000
Mass Mutual Life 10,500,000
Mass Mutual Life 4,500,000
National Life 10,000,000
Life Insurance Co of the Southwest 5,000,000
Northwestern Mutual Life 20,000,000
Xxxxxxx National Life 25,000,000
State Life Insurance Company 1,000,000
Pacific Life 30,000,000
Mony Life 20,000,000
GUARANTEES
By Xxxxxx Xxxxxxx Corporation for and in favor of Supergrape, $15,102,000
L.L.C.
SCHEDULE 5.15
(to Note Purchase Agreement)
RMC and its Restricted Subsidiaries outstanding as of the date of
Closing are as follows:
LESSOR LESSEE MATURITY BALANCE
B of A Leasing RMC 4/15/2003 $1,304,703
B of A Leasing RMC 5/1/2003 432,267
B of A Leasing RMC 6/15/2002 146,331
Xxxxxx Xxxxxxxx Xxxxxx Xxxxxxx Properties 12/31/2010 1,800,000
SPECIFIED TRANSACTIONS of RMC and its Restricted Subsidiaries as of the
date of Closing are as follows:
PARTICIPANT COMMITMENT TOTAL OUTSTANDING
VINEYARDS
Xxxxxx Trust & Savings Bank $30,000,000
Bank of America, N.A. 35,000,000
Credit Agricole Indosuez 20,000,000
Co-operative Centrale Raeffersen -
Boerenleen Bank, B.A. 20,000,000
Pacific Coast Farm Credit Services 10,000,000
----------
TOTAL $115,000,000 $50,351,111.46
=========== =============
DISTRIBUTION CENTER
Xxxxxx Trust & Savings Bank $10,200,000
Bank of America, N.A. 6,800,000
-----------
TOTAL $17,000,000 5,169,129.76
========== ============
PRODUCTION EQUIPMENT
Bank of America $16,000,000 4,891,800.00
---------- ------------
TOTAL $148,000,000 $60,412,041.22
-=========== =============
5.15-2
EXHIBIT 1-A
(to First Supplement)
[FORM OF TRANCHE A SERIES 2001-1 NOTE]
THE XXXXXX XXXXXXX CORPORATION
AND
R.M.E., INC.
7.37% SERIES 2001-1 SENIOR NOTE, TRANCHE A, DUE JANUARY 30, 2011
No. [_________] [Date]
$[____________] PPN 77035* AE7
FOR VALUE RECEIVED, the undersigned, THE XXXXXX XXXXXXX CORPORATION, a
California corporation ("RMC"), and R.M.E., INC., a California corporation
("RME," RMC and RME are each being hereinafter sometimes individually referred
to as an "Obligor" and collectively as the "Obligors"), hereby, jointly and
severally, promise to pay to [________________], or registered assigns, the
principal sum of [________________] DOLLARS on January 30, 2011, with interest
(computed on the basis of a 360-day year of twelve 30-day months) (a) on the
unpaid balance thereof at the rate of 7.37% per annum from the date hereof,
payable semiannually, on the 30th day of January and July in each year,
commencing on the first of such dates after the date hereof, until the principal
hereof shall have become due and payable, and (b) to the extent permitted by law
on any overdue payment (including any overdue prepayment) of principal, any
overdue payment of interest and any overdue payment of any Make-Whole Amount (as
defined in the First Supplement referred to below), payable semiannually as
aforesaid (or, at the option of the registered holder hereof, on demand), at a
rate per annum from time to time equal to the greater of (i) 8.37% or (ii) 1%
over the rate of interest publicly announced by Bank of America National Trust &
Savings Association of America from time to time in Chicago, Illinois as its
"base" or "prime" rate.
Payments of principal of, interest on and any Make-Whole Amount with
respect to this Note are to be made in lawful money of the United States of
America at the offices of RMC, in Oakville, California, or at such other place
as the Obligors shall have designated by written notice to the holder of this
Note as provided in the Note Purchase Agreement referred to below.
This Note is one of the 7.37% Series 2001-1 Senior Notes, Tranche A,
due January 30, 2011, which, together with the 7.27% Series 2001-1 Senior Notes,
Tranche B, due January 30, 2011 (collectively, the "Notes"), were issued
pursuant to a First Supplement, dated as of January 30, 2001 (the "First
Supplement"), to the Note Purchase Agreement, dated as of March 28, 2000 (as
from time to time amended, supplemented or modified, including by the First
Supplement, the "Note Purchase Agreement"), between the Obligors, the Purchasers
named therein and Additional Purchasers of Notes from time to time issued
pursuant to any Supplement to the Note Purchase Agreement. This Note and the
holder hereof are entitled equally and ratably with the holders of all other
Notes of all series from time to time outstanding under the Note
EXHIBIT 1-A
(to First Supplement)
Purchase Agreement to all the benefits provided for thereby or referred to
therein. Each holder of this Note will be deemed, by its acceptance hereof, to
have made the representation set forth in Section 6.2 of the Note Purchase
Agreement, provided that such holder may (in reliance upon information provided
by the Obligors, which shall not be unreasonably withheld) make a representation
to the effect that the purchase by such holder of any Note will not constitute a
non-exempt prohibited transaction under Section 406(a) of ERISA.
This Note is registered with the Obligors and, as provided in the Note
Purchase Agreement, upon surrender of this Note for registration of transfer,
duly endorsed, or accompanied by a written instrument of transfer duly executed,
by the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note of an identical series and tranche for a like principal
amount will be issued to, and registered in the name of, the transferee. Prior
to due presentment for registration of transfer, the Obligors may treat the
person in whose name this Note is registered as the owner hereof for the purpose
of receiving payment and for all other purposes, and the Obligors will not be
affected by any notice to the contrary.
This Note is not subject to regularly scheduled prepayments of
principal prior to maturity. This Note is subject to optional prepayment, in
whole or from time to time in part, at the times and on the terms specified in
the Note Purchase Agreement, but not otherwise.
If an Event of Default, as defined in the Note Purchase Agreement,
occurs and is continuing, the principal of this Note may be declared or
otherwise become due and payable in the manner, at the price (including any
applicable Make-Whole Amount) and with the effect provided in the Note Purchase
Agreement.
This Note shall be construed and enforced in accordance with, and the
rights of the parties shall be governed by, the law of the State of Illinois
excluding choice-of-law principles of the law of such State that would require
the application of the laws of a jurisdiction other than such State.
THE XXXXXX XXXXXXX CORPORATION
By __________________________________
Name:
Title:
R.M.E., INC.
By __________________________________
Name:
Title:
-2-
[FORM OF TRANCHE B SERIES 2001-1 NOTE]
THE XXXXXX XXXXXXX CORPORATION
AND
R.M.E., INC.
7.27% SERIES 2001-1 SENIOR NOTE, TRANCHE B, DUE JANUARY 30, 2011
No. [_________] [Date]
$[____________] PPN 77035* AF4
FOR VALUE RECEIVED, the undersigned, THE XXXXXX XXXXXXX CORPORATION, a
California corporation ("RMC"), and R.M.E., INC., a California corporation
("RME," RMC and RME are each being hereinafter sometimes individually referred
to as an "Obligor" and collectively as the "Obligors"), hereby, jointly and
severally, promise to pay to [________________], or registered assigns, the
principal sum of [________________] DOLLARS on January 30, 2011, with interest
(computed on the basis of a 360-day year of twelve 30-day months) (a) on the
unpaid balance thereof at the rate of 7.27% per annum from the date hereof,
payable semiannually, on the 30th day of January and July in each year,
commencing on the first of such dates after the date hereof, until the principal
hereof shall have become due and payable, and (b) to the extent permitted by law
on any overdue payment (including any overdue prepayment) of principal, any
overdue payment of interest and any overdue payment of any Make-Whole Amount (as
defined in the First Supplement referred to below), payable semiannually as
aforesaid (or, at the option of the registered holder hereof, on demand), at a
rate per annum from time to time equal to the greater of (i) 8.27% or (ii) 1%
over the rate of interest publicly announced by Bank of America National Trust &
Savings Association of America from time to time in Chicago, Illinois as its
"base" or "prime" rate.
Payments of principal of, interest on and any Make-Whole Amount with
respect to this Note are to be made in lawful money of the United States of
America at the offices of RMC, in Oakville, California, or at such other place
as the Obligors shall have designated by written notice to the holder of this
Note as provided in the Note Purchase Agreement referred to below.
This Note is one of the 7.27% Series 2001-1 Senior Notes, Tranche B,
due January 30, 2011, which, together with the 7.37% Series 2001-1 Senior Notes,
Tranche A, due January 30, 2011 (collectively, the "Notes"), were issued
pursuant to a First Supplement, dated as of January 30, 2001 (the "First
Supplement"), to the Note Purchase Agreement, dated as of March 28, 2000 (as
from time to time amended, supplemented or modified, including by the First
Supplement, the "Note Purchase Agreement"), between the Obligors, the Purchasers
named therein and Additional Purchasers of Notes from time to time issued
pursuant to any Supplement to the Note Purchase Agreement. This Note and the
holder hereof are entitled equally and ratably with the holders of all other
Notes of all series from time to time outstanding under the Note
EXHIBIT 1-B
(to First Supplement)
Purchase
Agreement to all the benefits provided for thereby or referred to therein. Each
holder of this Note will be deemed, by its acceptance hereof, to have made the
representation set forth in Section 6.2 of the Note Purchase Agreement, provided
that such holder may (in reliance upon information provided by the Obligors,
which shall not be unreasonably withheld) make a representation to the effect
that the purchase by such holder of any Note will not constitute a non-exempt
prohibited transaction under Section 406(a) of ERISA.
This Note is registered with the Obligors and, as provided in the Note
Purchase Agreement, upon surrender of this Note for registration of transfer,
duly endorsed, or accompanied by a written instrument of transfer duly executed,
by the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note of an identical series and tranche for a like principal
amount will be issued to, and registered in the name of, the transferee. Prior
to due presentment for registration of transfer, the Obligors may treat the
person in whose name this Note is registered as the owner hereof for the purpose
of receiving payment and for all other purposes, and the Obligors will not be
affected by any notice to the contrary.
This Note is not subject to regularly scheduled prepayments of
principal prior to maturity. This Note is subject to optional prepayment, in
whole or from time to time in part, at the times and on the terms specified in
the Note Purchase Agreement, but not otherwise.
If an Event of Default, as defined in the Note Purchase Agreement,
occurs and is continuing, the principal of this Note may be declared or
otherwise become due and payable in the manner, at the price (including any
applicable Make-Whole Amount) and with the effect provided in the Note Purchase
Agreement.
This Note shall be construed and enforced in accordance with, and the
rights of the parties shall be governed by, the law of the State of Illinois
excluding choice-of-law principles of the law of such State that would require
the application of the laws of a jurisdiction other than such State.
THE XXXXXX XXXXXXX CORPORATION
By __________________________________
Name:
Title:
R.M.E., INC.
By __________________________________
Name:
Title:
-2-
