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Note Purchase Agreement
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THE XXXX GROUP INC.
DATED AS OF MAY 21, 1998
$20,000,000 6.44% SERIES A SENIOR SECURED NOTES DUE 2005
$40,000,000 6.93% SERIES B SENIOR SECURED NOTES DUE 2008
TABLE OF CONTENTS
PAGE
1. AUTHORIZATION OF NOTES............................................. 1
2. SALE AND PURCHASE OF NOTES......................................... 1
3. CLOSING............................................................ 2
4. CONDITIONS TO CLOSING.............................................. 2
4.1 Representations and Warranties............................ 2
4.2 Performance; No Default................................... 2
4.3 Compliance Certificates................................... 2
4.4 Opinions of Counsel....................................... 3
4.5 Purchase Permitted By Applicable Law, etc................. 3
4.6 Sale of Other Notes....................................... 3
4.7 Bank Loan Agreement....................................... 4
4.8 Intercreditor Agreement................................... 4
4.9 Security Agreements....................................... 4
4.10 Pledge Agreements......................................... 4
4.11 Perfection of Liens....................................... 4
4.12 Termination or Assignment of Existing Liens............... 4
4.13 Guaranty Agreement........................................ 4
4.14 Payment of Special Counsel Fees........................... 5
4.15 Private Placement Numbers................................. 5
4.16 Changes in Corporate Structure............................ 5
4.17 Proceedings and Documents................................. 5
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY...................... 5
5.1 Organization; Power and Authority......................... 5
5.2 Authorization, etc........................................ 6
5.3 Disclosure................................................ 6
5.4 Organization and Ownership of Shares of Subsidiaries;
Affiliates................................................ 6
5.5 Financial Statements...................................... 7
5.6 Compliance with Laws, Other Instruments, etc.............. 7
5.7 Governmental Authorizations, etc.......................... 8
5.8 Litigation; Observance of Agreements, Statutes and Orders. 8
5.9 Taxes..................................................... 8
5.10 Title to Property; Leases................................. 9
5.11 Licenses, Permits, etc.................................... 9
5.12 Compliance with ERISA..................................... 9
5.13 Private Offering by the Company........................... 10
5.14 Use of Proceeds; Margin Regulations....................... 10
5.15 Existing Indebtedness; Future Liens....................... 11
5.16 Foreign Assets Control Regulations, etc................... 11
5.17 Status under Certain Statutes............................. 11
5.18 Environmental Matters..................................... 11
5.19 Security Documents........................................ 12
5.20 Solvency.................................................. 12
6. REPRESENTATIONS OF THE PURCHASER................................... 13
6.1 Purchase for Investment................................... 13
6.2 Source of Funds........................................... 13
7. INFORMATION AS TO COMPANY.......................................... 14
7.1 Financial and Business Information........................ 14
7.2 Officer's Certificate..................................... 17
7.3 Inspection................................................ 18
8. PAYMENT OF THE NOTES, ETC.......................................... 18
8.1 Required Prepayments; Payment at Maturity................. 18
8.2 Optional Prepayments with Make-Whole Amount............... 19
8.3 Change in Control......................................... 19
8.4 Allocation of Partial Prepayments......................... 22
8.5 Maturity; Surrender, etc.................................. 22
8.6 No Other Optional Prepayments or Purchase of Notes........ 22
8.7 Make-Whole Amount......................................... 22
9. AFFIRMATIVE COVENANTS.............................................. 24
9.1 Compliance with Law....................................... 24
9.2 Insurance................................................. 24
9.3 Maintenance of Properties................................. 24
9.4 Payment of Taxes and Claims............................... 24
9.5 Corporate Existence, etc.................................. 25
9.6 New Subsidiaries.......................................... 25
9.7 Pari Passu................................................ 25
10. NEGATIVE COVENANTS................................................. 26
10.1 Transactions with Affiliates.............................. 26
10.2 Line of Business.......................................... 26
10.3 Maintenance of Consolidated Adjusted Net Worth............ 26
10.4 Consolidated Fixed Charges Coverage Ratio................. 26
10.5 Limitation on Debt........................................ 26
10.6 Liens..................................................... 27
10.7 Merger, Consolidation, etc................................ 30
10.8 Sale of Assets, etc....................................... 31
11. EVENTS OF DEFAULT.................................................. 32
12. REMEDIES ON DEFAULT, ETC........................................... 35
12.1 Acceleration.............................................. 35
12.2 Other Remedies............................................ 36
12.3 Rescission................................................ 36
12.4 No Waivers or Election of Remedies, Expenses, etc......... 36
13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES...................... 37
13.1 Registration of Notes..................................... 37
13.2 Transfer and Exchange of Notes............................ 37
13.3 Replacement of Notes...................................... 37
14. PAYMENTS ON NOTES.................................................. 38
14.1 Place of Payment.......................................... 38
14.2 Home Office Payment....................................... 38
15. EXPENSES, ETC...................................................... 39
15.1 Transaction Expenses...................................... 39
15.2 Survival.................................................. 39
16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT....... 39
17. AMENDMENT AND WAIVER............................................... 39
17.1 Requirements.............................................. 39
17.2 Solicitation of Holders of Notes.......................... 40
17.3 Binding Effect, etc....................................... 40
17.4 Notes held by Company, etc................................ 40
18. NOTICES............................................................ 41
19. REPRODUCTION OF DOCUMENTS.......................................... 41
20. CONFIDENTIAL INFORMATION........................................... 41
21. SUBSTITUTION OF PURCHASER.......................................... 43
22. MISCELLANEOUS...................................................... 43
22.1 Additional Notes.......................................... 43
22.2 Successors and Assigns.................................... 43
22.3 Payments Due on Non-Business Days; When Payments Deemed
Received............................................... 44
22.4 Severability.............................................. 44
22.5 Construction.............................................. 44
22.6 Counterparts.............................................. 44
22.7 Governing Law............................................. 44
SCHEDULES & EXHIBITS
SCHEDULE A -- Information Relating to Purchasers
SCHEDULE B -- Defined Terms
SCHEDULE 3 -- Payment Instructions
SCHEDULE 4.16 -- Changes in Corporate Structure
SCHEDULE 5.3 -- Disclosure Materials
SCHEDULE 5.4 -- Subsidiaries of the Company and Ownership
of Subsidiary Stock
SCHEDULE 5.5 -- Financial Statements
SCHEDULE 5.8 -- Certain Litigation
SCHEDULE 5.11 -- Patents, etc.
SCHEDULE 5.12 -- ERISA Affiliates
SCHEDULE 5.14 -- Use of Proceeds
SCHEDULE 5.15 -- Existing Debt and Liens
EXHIBIT 1A -- Form of 6.44% Series A Senior Secured Note
due May 21, 2005
EXHIBIT 1B -- Form of 6.93% Series B Senior Secured Note
due May 21, 2008
EXHIBIT 4.4(a) -- Forms of Opinions of Special Counsel for the
Obligors
EXHIBIT 4.4(b) -- Form of Opinion of Special Counsel for the
Collateral Agent
EXHIBIT 4.4(c) -- Form of Opinion of Special Counsel for the
Purchasers
EXHIBIT 4.8 -- Form of Intercreditor Agreement
EXHIBIT 4.9 -- Form of Security Agreement
EXHIBIT 4.10 -- Form of Pledge Agreement
EXHIBIT 4.13 -- Form of Guaranty Agreement
THE XXXX GROUP INC.
00000 Xxxx Xxxx
Xxxxx Xxxxx, XX 00000
6.44% SERIES A SENIOR SECURED NOTES DUE MAY 21, 2005
6.93% SERIES B SENIOR SECURED NOTES DUE MAY 21, 2008
Dated as of May 21, 1998
To the Purchaser Named on
the Signature Page Hereto
Ladies and Gentlemen:
THE XXXX GROUP INC., a Louisiana corporation (together with its successors
and assigns, the "Company"), agrees with you as follows:
1. AUTHORIZATION OF NOTES.
The Company will authorize
(a) the issue and sale of $20,000,000 aggregate principal amount of its
6.44% Series A Senior Secured Notes due 2005 (together with all notes issued
pursuant hereto in exchange or substitution thereof, the "Series A Notes"), and
(b) the issue and sale of $40,000,000 aggregate principal amount of its
6.93% Series B Senior Secured Notes due 2008 (together with all notes issued
pursuant hereto in exchange or substitution thereof, the "Series B Notes");
(the Series A Notes and the Series B Notes referred to, collectively, as
the "Notes"). The Series A Notes and the Series B Notes shall be substantially
in the forms set out in Exhibit 1A and Exhibit 1B, respectively, with such
changes therefrom, if any, as may be approved by you and the Company. Certain
capitalized terms used in this Agreement are defined in Schedule B; references
to a "Schedule" or an "Exhibit" are, unless otherwise specified, to a Schedule
or an Exhibit attached to this Agreement.
2. SALE AND PURCHASE OF NOTES.
Subject to the terms and conditions of this Agreement, the Company will
issue and sell to you and you will purchase from the Company, at the Closing
provided for in Section 3, Notes in the principal amount and the series
specified below your name in Schedule A at the purchase price of 100% of the
principal amount thereof. Contemporaneously with entering into this Agreement,
the Company is entering into separate Note Purchase Agreements (the "Other
Agreements") identical with this Agreement with each of the other purchasers
named in Schedule A (the "Other Purchasers"), providing for the sale at such
Closing to each of the Other Purchasers of Notes in the principal amount and the
series specified below its name in Schedule A. Your obligation hereunder and the
obligations of the Other Purchasers under the Other Agreements are several and
not joint obligations and you shall have no obligation under any Other Agreement
and no liability to any Person for the performance or no performance by any
Other Purchaser thereunder.
3. CLOSING.
The sale and purchase of the Notes to be purchased by you and the Other
Purchasers shall occur at the offices of Xxxx & Xxxxxx, Xxx Xxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxxxxx 00000 at 10:00 a.m., local time, at a closing (the
"Closing") on May 21, 1998. At the Closing the Company will deliver to you the
Notes of the series to be purchased by you in the form of a single Note (or such
greater number of Notes in denominations of at least $100,000 as you may
request), dated the date of the Closing and registered in your name (or in the
name of your nominee), as indicated in Schedule A, against payment by federal
funds wire transfer in immediately available funds of the amount of the purchase
price therefor as directed by the Company in Schedule 3. If at the Closing the
Company shall fail to tender such Notes to you as provided above in this Section
3, or any of the conditions specified in Section 4 shall not have been fulfilled
to your satisfaction, you shall, at your election, be relieved of all further
obligations under this Agreement, without thereby waiving any rights you may
have by reason of such failure or such nonfulfillment.
4. CONDITIONS TO CLOSING.
Your obligation to purchase and pay for the Notes to be sold to you at the
Closing is subject to the fulfillment to your satisfaction, prior to or at the
Closing, of the following conditions:
4.1 Representations and Warranties.
The representations and warranties of the Company and its Subsidiaries in
the Financing Documents shall be correct when made and at the time of the
Closing.
4.2 Performance; No Default.
The Company and each of the Initial Guarantors shall have performed and
complied with all agreements and conditions contained in the Financing Documents
required to be performed or complied with by the Company or such Initial
Guarantor prior to or at the Closing and after giving effect to the issue and
sale of the Notes (and the application of the proceeds thereof as contemplated
by Schedule 5.14) no Default or Event of Default shall have occurred and be
continuing. Neither the Company nor any Subsidiary shall have entered into any
transaction since the date of the Memorandum that would have been prohibited by
any of Sections 10.1, 10.4, 10.5 or 10.8 had such Sections applied since such
date.
4.3 Compliance Certificates.
(a) Officer's Certificate. The Company shall have delivered to you an
Officer's Certificate, dated the date of the Closing, certifying that the
conditions specified in Sections 4.1, 4.2 and 4.16 have been fulfilled.
(b) Company Secretary's Certificate. The Company shall have delivered to
you a certificate of its Secretary or one of its Assistant Secretaries, dated
the date of the Closing, certifying as to the resolutions attached thereto and
other corporate proceedings relating to the authorization, execution and
delivery of the Financing Documents.
(c) Initial Guarantor Secretary's Certificates. Each of the Initial
Guarantors shall have delivered to you a certificate of its Secretary or one of
its Assistant Secretaries, dated the date of the Closing, certifying as to the
resolutions attached thereto and other corporate proceedings relating to the
authorization, execution and delivery of the Financing Documents to which such
Initial Guarantor is a party.
4.4 Opinions of Counsel.
You shall have received opinions in form and substance satisfactory to you,
dated the date of the Closing, from
(a) Kantrow, Spaht, Xxxxxx & Blitzer (A Professional Law Corporation),
counsel for the Company and the Initial Guarantors, substantially in the form
set out in Exhibit 4.4(a) and covering such other matters incident to the
transactions contemplated hereby as you or your counsel may reasonably request
(and the Company hereby instructs such counsel to deliver such opinion to you),
and
(b) Xxxxx X. Xxxxx, counsel for the Collateral Agent, substantially in the
form set out in Exhibit 4.4(b) and covering such other matters incident to the
transactions contemplated hereby as you or your counsel may reasonably request,
and
(c) Xxxx & Xxxxxx, your special counsel in connection with such
transactions, substantially in the form set out in Exhibit 4.4(c) and covering
such other matters incident to such transactions as you may reasonably request.
4.5 Purchase Permitted By Applicable Law, etc.
On the date of the Closing your purchase of Notes shall (a) be permitted by
the laws and regulations of each jurisdiction to which you are subject, without
recourse to provisions (such as section 1405(a)(8) of the New York Insurance
Law) permitting limited investments by insurance companies without restriction
as to the character of the particular investment, (b) not violate any applicable
law or regulation (including, without limitation, Regulation T, U or X of the
Board of Governors of the Federal Reserve System) and (c) not subject you to any
tax, penalty or liability under or pursuant to any applicable law or regulation.
If requested by you, you shall have received an Officer's Certificate certifying
as to such matters of fact as you may reasonably specify to enable you to
determine whether such purchase is so permitted.
4.6 Sale of Other Notes.
Contemporaneously with the Closing the Company shall sell to the Other
Purchasers and the Other Purchasers shall purchase the Notes of the series to be
purchased by them at the Closing as specified in Schedule A.
4.7 Bank Loan Agreement.
The Company and the Banks shall have entered into the Bank Loan Agreement,
in form and substance satisfactory to you, and the Company shall have delivered
to you copies of the Bank Loan Agreement and each other document executed in
connection therewith requested by you, certified as true and correct by a
Responsible Officer.
4.8 Intercreditor Agreement.
The Company, the Banks, you, the Other Purchasers and the Collateral Agent
shall have executed and delivered (and the Initial Guarantors shall have
executed and delivered the consent and agreement to) the Collateral Agency and
Intercreditor Agreement, substantially in the form of Exhibit 4.8 (as amended
from time to time, the "Intercreditor Agreement"), and the Intercreditor
Agreement shall be in full force and effect.
4.9 Security Agreements.
Each Obligor and the Collateral Agent shall have entered into a Security
Agreement, substantially in the form of Exhibit 4.9 (collectively, as amended or
supplemented from time to time, the "Security Agreements"), and each Security
Agreement shall be in full force and effect.
4.10 Pledge Agreements.
Each of the Company and certain Guarantors shall have entered into a
General Pledge and Security Agreement with the Collateral Agent, substantially
in the form of Exhibit 4.10 (collectively, as amended or supplemented from time
to time, the "Pledge Agreements"), and each Pledge Agreement shall be in full
force and effect.
4.11 Perfection of Liens.
Each Obligor shall have executed and delivered to the Collateral Agent all
UCC-1 financing statements necessary to perfect the Liens of the Collateral
Agent in the Collateral which may be perfected by the filing thereof and shall
have delivered to the Collateral Agent all appropriate stock certificates
(together with undated stock powers executed in blank to the Collateral Agent)
evidencing the shares of Capital Stock pledged pursuant to the Pledge
Agreements.
4.12 Termination or Assignment of Existing Liens.
All actions necessary to terminate, release or assign to the Collateral
Agent any and all Liens on the Collateral, other than Liens permitted under
Section 10.6(a), shall have been taken in accordance with the provisions of the
Security Agreements, including, without limitation, the filing of all
appropriate Uniform Commercial Code termination statements.
4.13 Guaranty Agreement.
You shall have received a counterpart of the Guaranty Agreement, duly
executed and delivered by each of the Initial Guarantors, substantially in the
form of Exhibit 4.13 (as amended or supplemented from time to time, the
"Guaranty Agreement"), and the Guaranty Agreement shall be in full force and
effect.
4.14 Payment of Special Counsel Fees.
Without limiting the provisions of Section 15.1, the Company shall have
paid on or before the Closing the fees, charges and disbursements of your
special counsel referred to in Section 4.4(c) to the extent reflected in a
statement of such counsel rendered to the Company at least one Business Day
prior to the date of the Closing.
4.15 Private Placement Numbers.
A Private Placement Number issued by Standard & Poor's CUSIP Service Bureau
(in cooperation with the Securities Valuation Office of the National Association
of Insurance Commissioners) shall have been obtained for each series of Notes.
4.16 Changes in Corporate Structure.
Except as specified in Schedule 4.16, the Company shall not have changed
its jurisdiction of incorporation or been a party to any merger or consolidation
and shall not have succeeded to all or any substantial part of the liabilities
of any other entity, at any time following the date of the most recent financial
statements referred to in Schedule 5.5.
4.17 Proceedings and Documents.
All corporate and other proceedings in connection with the transactions
contemplated by the Financing Documents and all documents and instruments
incident to such transactions shall be satisfactory to you and your special
counsel, and you and your special counsel shall have received all such
counterpart originals or certified or other copies of such documents as you or
they may reasonably request.
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to you, as of the date of the Closing,
that:
5.1 Organization; Power and Authority.
Each Obligor is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation, and is duly
qualified as a foreign corporation and is in good standing in each jurisdiction
in which such qualification is required by law, other than those jurisdictions
as to which the failure to be so qualified or in good standing would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. Each Obligor has the corporate power and authority to own or
hold under lease the properties it purports to own or hold under lease, to
transact the business it transacts and proposes to transact, to execute and
deliver the Financing Documents to which it is or is to be a party and to
perform the provisions thereof.
5.2 Authorization, etc.
The Financing Documents have been duly authorized by all necessary
corporate action on the part of the Obligors, and each of this Agreement, the
Security Agreements, the Pledge Agreements, the Guaranty Agreement and the
Intercreditor Agreement constitutes, and upon execution and delivery thereof
each Note will constitute, a legal, valid and binding obligation of each Obligor
party thereto, enforceable against each such Obligor in accordance with its
terms, except as such enforceability may be limited by (a) applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and (b) general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
5.3 Disclosure.
The Company, through its agents, SPP Hambro & Co., LLC and Mercantile Bank,
has delivered to you and each Other Purchaser a copy of a Confidential Direct
Placement Memorandum, dated February 1998 (the "Memorandum"), relating to the
transactions contemplated hereby. The Memorandum fairly describes, in all
material respects, the general nature of the business and principal properties
of the Company and its Subsidiaries. Except as disclosed in Schedule 5.3, the
Financing Documents, the Memorandum, the documents, certificates or other
writings delivered to you by or on behalf of the Company in connection with the
transactions contemplated by the Financing Documents and the financial
statements listed in Schedule 5.5, 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 herein or therein not misleading in light of the
circumstances under which they were made, except in all cases as corrected,
supplemented or modified in any subsequent document, certificate or other
instrument delivered to you by or on behalf of the Company prior to the date of
the Closing. Except as disclosed in the Memorandum or as expressly described in
Schedule 5.3, or in the documents, certificates or other writings identified
herein or therein, or in the financial statements listed in Schedule 5.5, since
August 31, 1997, there has been no change in the financial condition,
operations, business, properties or prospects of the Company or any Subsidiary
except changes that individually or in the aggregate would not reasonably be
expected to have a Material Adverse Effect. There is no fact known to the
Company that would reasonably be expected to have a Material Adverse Effect that
has not been set forth herein or in the Memorandum or in the other documents,
certificates and other writings delivered to you by or on behalf of the Company
specifically for use in connection with the transactions contemplated hereby
5.4 Organization and Ownership of Shares of Subsidiaries; Affiliates.
(a) Schedule 5.4 contains (except as noted therein) complete and correct
lists of (i) the Company's 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 outstanding owned by the Company
and each other Subsidiary and (ii) the Company's Affiliates, other than
Subsidiaries.
(b) All of the outstanding shares of Capital Stock of each Subsidiary shown
in Schedule 5.4 as being owned by the Company and its Subsidiaries have been
validly issued, are fully paid and nonassessable and are owned by the Company or
another Subsidiary free and clear of any Lien (except as otherwise disclosed in
Schedule 5.4).
(c) Each Subsidiary identified in Schedule 5.4 is a corporation or other
legal entity duly organized, validly existing and in good standing under the
laws of its jurisdiction of organization, and is duly qualified as a foreign
corporation or other legal entity and is in good standing in each jurisdiction
in which such qualification is required by law, other than those jurisdictions
as to which the failure to be so qualified or in good standing would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. Each such Subsidiary has the corporate or other power and
authority to own or hold under lease the properties it purports to own or hold
under lease and to transact the business it transacts and proposes to transact.
(d) No Subsidiary is a party to, or otherwise subject to any legal
restriction or any agreement (other than this Agreement, the agreements listed
in Schedule 5.4 and customary limitations imposed by corporate law statutes)
restricting the ability of such Subsidiary to pay dividends out of profits or
make any other similar distributions of profits to the Company or any of its
Subsidiaries that owns outstanding shares of Capital Stock of such Subsidiary.
5.5 Financial Statements.
The Company has delivered to you and each Other Purchaser copies of the
consolidated financial statements of the Company and its Subsidiaries listed in
Schedule 5.5. All of said consolidated financial statements (including in each
case the related schedules and notes) fairly present in all material respects
the consolidated financial position of the Company and its Subsidiaries as of
the respective dates specified in such 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).
5.6 Compliance with Laws, Other Instruments, etc.
The execution, delivery and performance by the Obligors of the Financing
Documents will not
(a) contravene, result in any breach of, or constitute a default under, or
result in the creation of any Lien in respect of any property of the Company or
any Subsidiary (other than as contemplated by the Security Documents) under, any
indenture, mortgage, deed of trust, loan, purchase or credit agreement, lease,
corporate charter or by-laws, or any other agreement or instrument to which the
Company or any Subsidiary is bound or by which the Company or any Subsidiary or
any of their respective properties may be bound or affected, which, in each
case, individually or in the aggregate, would reasonably be expected to have a
Material Adverse Effect,
(b) conflict with or result in a breach of any of the terms, conditions or
provisions of any order, judgment, decree, or ruling of any court, arbitrator or
Governmental Authority applicable to the Company or any Subsidiary, which, in
each case, individually or in the aggregate, would reasonably be expected to
have a Material Adverse Effect, or
(c) violate any provision of any statute or other rule or regulation of any
Governmental Authority applicable to the Company or any Subsidiary, which, in
each case, individually or in the aggregate, would reasonably be expected to
have a Material Adverse Effect.
5.7 Governmental Authorizations, etc.
No consent, approval or authorization of, or registration, filing or
declaration with, any Governmental Authority is required in connection with the
execution, delivery or performance by the Obligors of the Financing Documents,
except those previously obtained or made or those as to which the failure to so
obtain or make would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
5.8 Litigation; Observance of Agreements, Statutes and Orders.
(a) Except as disclosed in Schedule 5.8, there are no actions, suits or
proceedings pending or, to the knowledge of the Company, threatened against or
affecting the Company or any Subsidiary or any property of the Company or any
Subsidiary in any court or before any arbitrator of any kind or before or by any
Governmental Authority that, individually or in the aggregate, would reasonably
be expected to have a Material Adverse Effect.
(b) Neither the Company nor any Subsidiary is in default under any term of
any agreement or instrument to which it is a party or by which it is bound, or
any order, judgment, decree or ruling of any court, arbitrator or Governmental
Authority or is in violation of any applicable law, ordinance, rule or
regulation (including, without limitation, Environmental Laws) of any
Governmental Authority, which default or violation, individually or in the
aggregate, would reasonably be expected to have a Material Adverse Effect.
5.9 Taxes.
The Company and its Subsidiaries have filed all tax returns that are
required to have been filed in any jurisdiction, and have paid all taxes shown
to be due and payable on such returns and all other taxes and assessments levied
upon them or their properties, assets, income or franchises, to the extent such
taxes and assessments have become due and payable and before they have become
delinquent, except for any taxes and assessments (a) the amount of which is not
individually or in the aggregate Material or (b) the amount, applicability or
validity of which is currently being contested in good faith by appropriate
proceedings and with respect to which the Company or a Subsidiary, as the case
may be, has established adequate reserves in accordance with GAAP. The Company
knows of no basis for any other tax or assessment that would reasonably be
expected to have a Material Adverse Effect. The charges, accruals and reserves
on the books of the Company and its Subsidiaries in respect of Federal, state or
other taxes for all fiscal periods are adequate. The Federal income tax
liabilities of the Company and its Subsidiaries have been determined by the
Internal Revenue Service and paid for all fiscal years up to and including the
fiscal year ended August 31, 1990.
5.10 Title to Property; Leases.
The Company and its Subsidiaries have good and sufficient title to their
respective properties that individually or in the aggregate are Material,
including all such properties reflected in the most recent audited balance sheet
referred to in Section 5.5 or purported to have been acquired by the Company or
any Subsidiary after said date (except as sold or otherwise disposed of in the
ordinary course of business), in each case free and clear of Liens prohibited by
this Agreement. All leases that individually or in the aggregate are Material
are valid and subsisting and are in full force and effect in all material
respects.
5.11 Licenses, Permits, etc.
Except as disclosed in Schedule 5.11,
(a) the Company and its Subsidiaries own or possess all licenses, permits,
franchises, authorizations, patents, copyrights, service marks, trademarks and
trade names, or rights thereto, that individually or in the aggregate are
Material, without known conflict with the rights of others;
(b) to the best knowledge of the Company, no product or practice of the
Company or any Subsidiary infringes in any material respect any license, permit,
franchise, authorization, patent, copyright, service xxxx, trademark, trade name
or other right owned by any other Person; and
(c) to the best knowledge of the Company, there is no Material violation by
any Person of any right of the Company or any of its Subsidiaries with respect
to any patent, copyright, service xxxx, trademark, trade name or other right
owned or used by the Company or any of its Subsidiaries.
5.12 Compliance with ERISA.
(a) The Company and each ERISA Affiliate have operated and administered
each Plan in compliance with all applicable laws except for such instances of
noncompliance as have not resulted in and would not reasonably be expected to
result in a Material Adverse Effect. Neither the Company nor any ERISA Affiliate
has incurred any liability pursuant to Title I or IV of ERISA or the penalty or
excise tax provisions of the Code relating to employee benefit plans (as defined
in section 3 of ERISA), and no event, transaction or condition has occurred or
exists that would reasonably be expected to result in the incurrence of any such
liability by the Company or any ERISA Affiliate, or in the imposition of any
Lien on any of the rights, properties or assets of the Company or any ERISA
Affiliate, in either case pursuant to Title I or IV of ERISA or to such penalty
or excise tax provisions or to section 401(a)(29) or 412 of the Code, other than
such liabilities or Liens as would not be individually or in the aggregate
Material.
(b) The present value of the aggregate benefit liabilities under each of
the Plans (other than Multiemployer Plans), determined as of the end of such
Plan's most recently ended plan year on the basis of the actuarial assumptions
specified for funding purposes in such Plan's most recent actuarial valuation
report, did not exceed the aggregate current value of the assets of such Plan
allocable to such benefit liabilities. The term "benefit liabilities" has the
meaning specified in section 4001 of ERISA and the terms "current value" and
"present value" have the meaning specified in section 3 of ERISA.
(c) The Company and the ERISA Affiliates have not incurred withdrawal
liabilities (and are not subject to contingent withdrawal liabilities) under
section 4201 or 4204 of ERISA in respect of Multiemployer Plans that
individually or in the aggregate are Material.
(d) The expected postretirement benefit obligation (determined as of the
last day of the Company's most recently ended fiscal year in accordance with
Financial Accounting Standards Board Statement No. 106, without regard to
liabilities attributable to continuation coverage mandated by section 4980B of
the Code) of the Company and its Subsidiaries is not Material.
(e) The execution and delivery of the Financing Documents and the issuance
and sale of the Notes hereunder will not involve any transaction that is subject
to the prohibitions of section 406 of ERISA or in connection with which a tax
could be imposed pursuant to section 4975(c)(1)(A)-(D) of the Code. The
representation by the Company in the first sentence of this Section 5.12(e) is
made in reliance upon and subject to the accuracy of your representation in
Section 6.2 as to the sources of the funds used to pay the purchase price of the
Notes to be purchased by you.
(f) Schedule 5.12 sets forth all ERISA Affiliates and all "employee benefit
plans" maintained by the Company (or any "affiliate" thereof) or in respect of
which the Notes could constitute an "employer security" ("employee benefit plan"
has the meaning specified in section 3 of ERISA, "affiliate" has the meaning
specified in section 407(d) of ERISA and section V of the Department of Labor
Prohibited Transaction Exemption 95-60 (60 FR 35925, July 12, 1995) and
"employer security" has the meaning specified in section 407(d) of ERISA).
5.13 Private Offering by the Company.
Neither the Company nor anyone authorized to act on its behalf has offered
the Notes or any similar Securities for sale to, or solicited any offer to buy
any of the same from, or otherwise approached or negotiated in respect thereof
with, any Person other than you, the Other Purchasers and not more than 8 other
Institutional Investors, each of which has been offered the Notes at a private
sale for investment. Neither the Company nor anyone authorized to act on its
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. For purposes of this Section 5.13 only, each reference to the
Notes shall be deemed to include a reference to the Guaranty Agreement.
5.14 Use of Proceeds; Margin Regulations.
The Company will apply the proceeds of the sale of the Notes as set forth
in Schedule 5.14. No part of the proceeds from the sale of the Notes hereunder
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 Company 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). Margin
stock does not constitute more than 1% of Consolidated Total Assets and the
Company does not have any present intention that margin stock will constitute
more than 1% of Consolidated Total Assets. 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.
5.15 Existing Indebtedness; Future Liens.
(a) Except as described therein, Schedule 5.15 sets forth a complete and
correct list of all outstanding Indebtedness of the Company and its Subsidiaries
as of March 31, 1998 (indicating as to each such Indebtedness, the collateral,
if any, securing such Indebtedness), 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 Company or its Subsidiaries. Neither the
Company 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 Company or such Subsidiary and no event or condition exists with respect to
any Indebtedness of the Company or any Subsidiary the outstanding principal
amount of which exceeds $250,000 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.
(b) Except as disclosed in Schedule 5.15, neither the Company nor any
Subsidiary has agreed or consented to cause or permit in the future (upon the
happening of a contingency or otherwise) any of its property, whether now owned
or hereafter acquired, to be subject to a Lien not permitted by Section 10.6(a).
5.16 Foreign Assets Control Regulations, etc.
Neither the sale of the Notes by the Company hereunder nor its use of the
proceeds thereof, nor any other transaction contemplated by the Financing
Documents, will violate the Trading with the Enemy Act, as amended, or any of
the foreign assets control regulations of the United States Treasury Department
(31 CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or
executive order relating thereto.
5.17 Status under Certain Statutes.
Neither the Company nor any Subsidiary is subject to regulation under the
Investment Company Act of 1940, as amended, the Public Utility Holding Company
Act of 1935, as amended, the Transportation Acts (49 U.S.C.), as amended, or the
Federal Power Act, as amended.
5.18 Environmental Matters.
Neither the Company nor any Subsidiary has knowledge of any claim or has
received any notice of any claim, and no proceeding has been instituted raising
any claim against the Company or any of its Subsidiaries or any of their
respective real properties now or formerly owned, leased or operated by any of
them or other assets, alleging any damage to the environment or violation of any
Environmental Laws, except, in each case, such as would not reasonably be
expected to result in a Material Adverse Effect. Except as otherwise disclosed
to you in writing,
(a) neither the Company nor any Subsidiary has knowledge of any facts which
would give rise to any claim, public or private, of violation of Environmental
Laws or damage to the environment emanating from, occurring on or in any way
related to real properties now or formerly owned, leased or operated by any of
them or to other assets or their use, except, in each case, such as would not
reasonably be expected to result in a Material Adverse Effect;
(b) neither the Company nor any of its Subsidiaries has stored any
Hazardous Materials on real properties now or formerly owned, leased or operated
by any of them or disposed of any Hazardous Materials in a manner contrary to
any Environmental Laws, in each case in any manner that would reasonably be
expected to result in a Material Adverse Effect; and
(c) all buildings on all real properties now owned, leased or operated by
the Company or any of its Subsidiaries are in compliance with applicable
Environmental Laws, except where failure to comply would not reasonably be
expected to result in a Material Adverse Effect.
5.19 Security Documents.
(a) Security Agreements. The Security Agreements create (after filing UCC-1
financing statements as therein provided) a valid and perfected (to the extent
such perfection can be made by filing such UCC-1 financing statements under the
Uniform Commercial Code of the applicable jurisdictions) first priority Lien in
and to the Collateral (as defined in the Security Agreements) in favor of the
Collateral Agent, subject to no Liens except to the extent permitted by Section
10.6(a).
(b) Pledge Agreements. The Pledge Agreements create (after delivery of the
Pledged Shares (as defined in the Pledge Agreements) as therein provided) a
valid and perfected (to the extent such perfection can be made by delivery under
the Uniform Commercial Code of the applicable states of the United States) first
priority Lien in and to such Pledged Shares in favor of the Collateral Agent,
subject to no Liens except to the extent permitted by Section 10.6(a).
(c) Warranties and Representations True. All warranties and representations
made in the Security Documents are true and correct as of the date of the
Closing.
5.20 Solvency.
The fair value of the business and assets of each of the Obligors exceeds
the amount that will be required to pay its liabilities (including, without
limitation, contingent, subordinated, unmatured and unliquidated liabilities on
existing debts, as such liabilities may become absolute and matured), in each
case after giving effect to the transactions contemplated by the Financing
Documents, including, without limitation, the provisions of Section 2.10 of the
Guaranty Agreement. Neither the Company nor any of the Initial Guarantors, after
giving effect to the transactions contemplated by the Financing Documents, will
be insolvent or will be engaged in any business or transaction, or about to
engage in any business or transaction, for which such Person has unreasonably
small assets or capital (within the meaning of the Uniform Fraudulent Transfer
Act, the Uniform Fraudulent Conveyance Act and Section 548 of Title 11 of the
United States Code), and neither the Company nor any of the Initial Guarantors
has any intent to hinder, delay or defraud any entity to which it is, or will
become, on or after the date of the Closing, indebted or incur debts that would
be beyond its ability to pay as they mature.
6. REPRESENTATIONS OF THE PURCHASER.
6.1 Purchase for Investment.
You represent that you are an Accredited Investor as defined in Regulation
D promulgated under the Securities Act and are purchasing the Notes for your own
account or for one or more separate accounts maintained by you or for the
account of one or more pension or trust funds and not with a view to the
distribution thereof, provided that the disposition of your or their property
shall at all times be within your or their control. You understand that the
Notes have not been registered under the Securities Act and may be resold only
if registered pursuant to the provisions of the Securities Act or if an
exemption from registration is available, except under circumstances where
neither such registration nor such an exemption is required by law, and that the
Company is not required to register the Notes.
6.2 Source of Funds.
You represent that at least one of the following statements is an accurate
representation as to each source of funds (a "Source") to be used by you to pay
the purchase price of the Notes to be purchased by you hereunder:
(a) the Source is an "insurance company general account" as defined in
United States Department of Labor Prohibited Transaction Exemption ("PTE") 95-60
(60 FR 35925, July 12, 1995) and there is no "employee benefit plan" (as defined
in section 3(3) of ERISA and section 4975(e)(1) of the Code (treating as a
single plan all plans maintained by the same employer or employee organization
or affiliate thereof)) with respect to which the amount of the general account
reserves and liabilities of all contracts held by or on behalf of such plan
exceeds 10% of the total reserves and liabilities of such general account
(exclusive of separate account liabilities) plus surplus, as set forth in the
National Association of Insurance Commissioners' Annual Statement filed with
your state of domicile; or
(b) if you are an insurance company, the Source does not include assets
allocated to any separate account maintained by you in which any employee
benefit plan (or its related trust) has any interest, other than a separate
account that is maintained solely in connection with your fixed contractual
obligations under which the amounts payable, or credited, to such plan and to
any participant or beneficiary of such plan (including any annuitant) are not
affected in any manner by the investment performance of the separate account; or
(c) the Source is either (i) an insurance company pooled separate account,
within the meaning of PTE 90-1 (issued January 29, 1990), or (ii) a bank
collective investment fund, within the meaning of the PTE 91-38 (issued July 12,
1991) and, except as you have disclosed to the Company in writing pursuant to
this paragraph (c), no employee benefit plan or group of plans maintained by the
same employer or employee organization beneficially owns more than 10% of all
assets allocated to such pooled separate account or collective investment fund;
or
(d) the Source constitutes assets of an "investment fund" (within the
meaning of part V of PTE 84-14 (the "QPAM Exemption")) managed by a "qualified
professional asset manager" or "QPAM" (within the meaning of part V of the QPAM
Exemption), no employee benefit plan's assets that are included in such
investment fund, when combined with the assets of all other employee benefit
plans established or maintained by the same employer or by an affiliate (within
the meaning of section V(c)(1) of the QPAM Exemption) of such employer or by the
same employee organization and managed by such QPAM, exceed 20% of the total
client assets managed by such QPAM, the conditions of part I(c) and (g) of the
QPAM Exemption are satisfied, neither the QPAM nor a person controlling or
controlled by the QPAM (applying the definition of "control" in section V(e) of
the QPAM Exemption) owns a 5% or more interest in the Company and
(i) the identity of such QPAM and
(ii) the names of all employee benefit plans whose assets are included in
such investment fund have been disclosed to the Company in writing pursuant to
this paragraph (d); or
(e) the source is a governmental plan; or
(f) the Source is one or more employee benefit plans, or a separate account
or trust fund comprised of one or more employee benefit plans, each of which has
been identified to the Company in writing pursuant to this paragraph (f); or
(g) the Source does not include assets of any employee benefit plan, other
than a plan exempt from the coverage of ERISA.
As used in this Section 6.2, the terms "employee benefit plan", "governmental
plan" and "separate account" shall have the respective meanings assigned to such
terms in Section 3 of ERISA.
7. INFORMATION AS TO COMPANY.
7.1 Financial and Business Information.
The Company shall deliver to each holder of Notes that is an Institutional
Investor:
(a) Quarterly Statements -- within 45 days after the end of each quarterly
fiscal period in each fiscal year of the Company (other than the last quarterly
fiscal period of each such fiscal year), duplicate copies of,
(i) a consolidated balance sheet of the Company and its Subsidiaries as at
the end of such quarter, and
(ii) consolidated statements of income and cash flows of the Company and
its Subsidiaries, for such quarter and (in the case of the second and third
quarters) for the portion of the fiscal year ending with such quarter, setting
forth in each case in comparative form the figures for the corresponding periods
in the previous fiscal year, all in reasonable detail, prepared in accordance
with GAAP applicable to quarterly financial statements generally, and certified
by a Senior Financial Officer as fairly presenting, in all material respects,
the consolidated financial position of the companies being reported on and their
consolidated results of operations and cash flows, subject to changes resulting
from year-end adjustments, provided that delivery within the time period
specified above of copies of the Company's Quarterly Report on Form 10-Q
prepared in compliance with the requirements therefor and filed with the
Securities and Exchange Commission shall be deemed to satisfy the requirements
of this Section 7.1(a);
(b) Annual Statements -- within 90 days after the end of each fiscal year
of the Company, duplicate copies of,
(i) a consolidated balance sheet of the Company and its Subsidiaries, as at
the end of such year, and
(ii) consolidated statements of income, shareholders' equity and cash flows
of the Company and its Subsidiaries, for such year, setting forth in each case
in comparative form the figures for the previous fiscal year, all in reasonable
detail, prepared in accordance with GAAP, and accompanied by
(A) an opinion thereon of independent certified public accountants of
recognized national standing, which opinion shall state that such financial
statements present fairly, in all material respects, the consolidated financial
position of the companies being reported upon and their consolidated results of
operations and cash flows and have been prepared in conformity with GAAP, and
that the examination of such accountants in connection with such financial
statements has been made in accordance with generally accepted auditing
standards, and that such audit provides a reasonable basis for such opinion in
the circumstances, and
(B) a certificate of such accountants stating that they have reviewed this
Agreement and stating further whether, in making their audit, they have become
aware of any condition or event that then constitutes a Default or an Event of
Default, and, if they are aware that any such condition or event then exists,
specifying the nature and period of the existence thereof (it being understood
that such accountants shall not be liable, directly or indirectly, for any
failure to obtain knowledge of any Default or Event of Default unless such
accountants should have obtained knowledge thereof in making an audit in
accordance with generally accepted auditing standards or did not make such an
audit), provided that the delivery within the time period specified above of the
Company's Annual Report on Form 10-K for such fiscal year prepared in accordance
with the requirements therefor and filed with the Securities and Exchange
Commission, together with the accountant's certificate described in clause (B)
above, shall be deemed to satisfy the requirements of this Section 7.1(b);
(c) SEC and Other Reports -- promptly upon their becoming available, one
copy of (i) each financial statement, report (including, without limitation, the
Company's annual report to shareholders, if any, prepared pursuant to Rule 14a-3
under the Exchange Act), notice or proxy statement sent by the Company or any
Subsidiary to public securities holders generally, and (ii) each regular or
periodic report, each registration statement other than on Form S-8 (without
exhibits except as expressly requested by such holder), and each prospectus and
all amendments thereto filed by the Company or any Subsidiary with the
Securities and Exchange Commission and of all press releases and other
statements made available generally by the Company or any Subsidiary to the
public concerning developments that are Material;
(d) Notice of Default or Event of Default -- promptly, and in any event
within five days after a Responsible Officer becoming aware of the existence of
any Default or Event of Default or that any Person has given any notice or taken
any action with respect to a claimed default hereunder or that any Person has
given any notice or taken any action with respect to a claimed default of the
type referred to in Section 11(f), a written notice specifying the nature and
period of existence thereof and what action the Company is taking or proposes to
take with respect thereto;
(e) ERISA Matters -- promptly, and in any event within five days after a
Responsible Officer becoming aware of any of the following, a written notice
setting forth the nature thereof and the action, if any, that the Company or an
ERISA Affiliate proposes to take with respect thereto:
(i) with respect to any Plan, any reportable event, as defined in section
4043(c) of ERISA and the regulations thereunder, for which notice thereof has
not been waived pursuant to such regulations as in effect on the date of the
Closing; or
(ii) the taking by the PBGC of steps to institute, or the threatening by
the PBGC of the institution of, proceedings under section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Plan, or the
receipt by the Company or any ERISA Affiliate of a notice from a Multiemployer
Plan that such action has been taken by the PBGC with respect to such
Multiemployer Plan; or
(iii) any event, transaction or condition that would result in the
incurrence of any liability by the Company or any ERISA Affiliate pursuant to
Title I or IV of ERISA or the penalty or excise tax provisions of the Code
relating to employee benefit plans, or in the imposition of any Lien on any of
the rights, properties or assets of the Company or any ERISA Affiliate pursuant
to Title I or IV of ERISA or such penalty or excise tax provisions, if such
liability or Lien, taken together with any other such liabilities or Liens then
existing, would reasonably be expected to have a Material Adverse Effect;
(f) Notices from Governmental Authority -- promptly, and in any event
within 30 days of receipt thereof, copies of any notice to the Company or any
Subsidiary from any Federal or state Governmental Authority relating to any
order, ruling, statute or other law or regulation that would reasonably be
expected to have a Material Adverse Effect;
(g) Actions, Proceedings -- promptly after a Responsible Officer becomes
aware of the commencement thereof, notice of any action or proceeding relating
to the Company or any Subsidiary in any court or before any Governmental
Authority or arbitration board or tribunal as to which there is a reasonable
possibility of an adverse determination and that, if adversely determined, would
reasonably be expected to have a Material Adverse Effect; and
(h) Requested Information -- with reasonable promptness, such other data
and information relating to the business, operations, affairs, financial
condition, assets or properties of the Company or any of its Subsidiaries or
relating to the ability of the Obligors to perform their obligations under the
Financing Documents as from time to time may be reasonably requested by any such
holder of Notes, or such information regarding the Company required to satisfy
the requirements of 17 C.F.R. ss.230.144A, as amended from time to time, in
connection with any contemplated transfer of the Notes.
7.2 Officer's Certificate.
Each set of financial statements delivered to a holder of Notes pursuant to
Section 7.1(a) or Section 7.1(b) shall be accompanied by a certificate of a
Senior Financial Officer setting forth:
(a) Covenant Compliance -- the information (including detailed
calculations) required in order to establish whether the Company was in
compliance with the requirements of Sections 10.3 through 10.6, inclusive, and
Section 10.8 during the quarterly or annual period covered by the statements
then being furnished (including with respect to each such Section, where
applicable, the calculations of the maximum or minimum amount, ratio or
percentage, as the case may be, permissible under the terms of such Sections,
and the calculation of the amount, ratio or percentage then in existence); and
(b) Event of Default -- a statement that such officer has reviewed the
relevant terms of the Financing Documents and has made, or caused to be made,
under his or her supervision, a review of the transactions and conditions of the
Company and its Subsidiaries from the beginning of the quarterly or annual
period covered by the statements then being furnished to the date of the
certificate and that such review has not disclosed the existence during such
period of any condition or event that constitutes a Default or an Event of
Default or, if any such condition or event existed or exists (including, without
limitation, any such event or condition resulting from the failure of the
Company or any Subsidiary to comply with any Environmental Law), specifying the
nature and period of existence thereof and what action the Company shall have
taken or proposes to take with respect thereto.
7.3 Inspection.
The Company shall permit the representatives of each holder of Notes that
is an Institutional Investor:
(a) No Default -- if no Default or Event of Default then exists, at the
expense of such holder and upon reasonable prior notice to the Company, to visit
the principal executive office of the Company, to discuss the affairs, finances
and accounts of the Company and its Subsidiaries with the Company's principal
officers, and (with the consent of the Company, which consent will not be
unreasonably withheld) its independent public accountants, and (with the consent
of the Company, which consent will not be unreasonably withheld) to visit the
other offices and properties of the Company and each Subsidiary, all at such
reasonable times and as often as may be reasonably requested in writing; and
(b) Default -- if a Default or Event of Default then exists, at the expense
of the Company, to visit and inspect any of the offices or properties of the
Company or any Subsidiary, to examine all their respective books of account,
records, reports and other papers, to make copies and extracts therefrom, and to
discuss their respective affairs, finances and accounts with their respective
principal officers and independent public accountants (and by this provision the
Company authorizes said accountants to discuss the affairs, finances and
accounts of the Company and its Subsidiaries), all at such reasonable times and
as often as may be reasonably requested.
8. PAYMENT OF THE NOTES, ETC.
8.1 Required Prepayments; Payment at Maturity.
(a) Series A Notes. On May 21, 1999 and on each May 21 thereafter to and
including May 21, 2004, the Company will prepay $2,857,143 principal amount (or
such lesser principal amount as shall then be outstanding) of the Series A Notes
at par and without payment of the Make-Whole Amount or any premium, and the
Company will pay all of the principal amount of the Series A Notes remaining
outstanding, if any, on May 21, 2005.
(b) Series B Notes. On May 21, 2002 and on each May 21 thereafter to and
including May 21, 2007, the Company will prepay $5,714,286 principal amount (or
such lesser principal amount as shall then be outstanding) of the Series B Notes
at par and without payment of the Make-Whole Amount or any premium, and the
Company will pay all of the principal amount of the Series B Notes remaining
outstanding, if any, on May 21, 2008.
8.2 Optional Prepayments with Make-Whole Amount.
The Company may, at its option, upon notice as provided below, prepay at
any time all, or from time to time any part of, the Notes (but if in part, in an
amount not less than $5,000,000 or such lesser amount as shall then be
outstanding), at 100% of the principal amount so prepaid, plus the Make-Whole
Amount determined for the prepayment date with respect to such principal amount.
The Company will give each holder of Notes written notice of each optional
prepayment under this Section 8.2 not less than 30 days and not more than 60
days prior to the date fixed for such prepayment. Each such notice shall specify
such prepayment date, the aggregate principal amount of the Notes to be prepaid
on such date, the principal amount of each Note held by such holder to be
prepaid (determined in accordance with Section 8.4), and the interest to be paid
on the prepayment date with respect to such principal amount being prepaid, and
shall be accompanied by a certificate of a Senior Financial Officer as to the
estimated Make-Whole Amount due in connection with such prepayment (calculated
as if the date of such notice were the date of the prepayment), setting forth
the details of such computation. Two Business Days prior to such prepayment, the
Company shall deliver to each holder of Notes a certificate of a Senior
Financial Officer specifying the calculation of such Make-Whole Amount as of the
specified prepayment date.
Each partial prepayment of the Notes pursuant to this Section 8.2 will be
applied first, to the amount due on the maturity date of the Notes and second,
to the mandatory prepayments applicable to the Notes, as set forth in Section
8.1, in the inverse order of the maturity thereof.
8.3 Change in Control.
(a) Notice of Change in Control or Control Event. The Company will, within
five Business Days after any Responsible Officer has knowledge of the occurrence
of any Change in Control or Control Event, give written notice of such Change in
Control or Control Event to each holder of Notes, unless notice in respect of
such Change in Control (or the Change in Control contemplated by such Control
Event) shall have been given pursuant to Section 8.3(b). If a Change in Control
has occurred, such notice shall contain and constitute an offer to prepay Notes
as described in Section 8.3(c) and shall be accompanied by the certificate
described in Section 8.3(g).
(b) Condition to Company Action. The Company will not take any action that
consummates or finalizes a Change in Control unless
(i) at least 15 Business Days prior to such action it shall have given to
each holder of Notes written notice containing and constituting an offer to
prepay Notes as described in Section 8.3(c), accompanied by the certificate
described in Section 8.3(g), and
(ii) contemporaneously with such action, it prepays all Notes required to
be prepaid in accordance with this Section 8.3.
(c) Offer to Prepay Notes. The offer to prepay Notes contemplated by
Section 8.3(a) and Section 8.3(b) shall be an offer to prepay, in accordance
with and subject to this Section 8.3, all, but not less than all, the Notes held
by each holder (in this case only, "holder" in respect of any Note registered in
the name of a nominee for a disclosed beneficial owner shall mean such
beneficial owner) on a date specified in such offer (the "Proposed Prepayment
Date"), without distinction between series. If such Proposed Prepayment Date is
in connection with an offer contemplated by Section 8.3(a), such date shall be
not less than 15 Business Days and not more than 20 Business Days after the date
of such offer (if the Proposed Prepayment Date shall not be specified in such
offer, the Proposed Prepayment Date shall be the 20th Business Day after the
date of such offer).
(d) Acceptance; Rejection. A holder of Notes may accept or reject the offer
to prepay made pursuant to this Section 8.3 by causing a notice of such
acceptance or rejection to be delivered to the Company at least two Business
Days prior to the Proposed Prepayment Date. A failure by a holder of Notes to
respond to an offer to prepay made pursuant to this Section 8.3 shall be deemed
to constitute an acceptance of such offer by such holder.
(e) Prepayment. Prepayment of the Notes to be prepaid pursuant to this
Section 8.3 shall be at 100% of the principal amount of such Notes, plus the
Make-Whole Amount determined for the date of prepayment with respect to such
principal amount, together with interest on such Notes accrued to the date of
prepayment. Two Business Days prior to such prepayment, the Company shall
deliver to each holder of Notes being prepaid a statement showing the Make-Whole
Amount, if any, due in connection with such prepayment and setting forth the
details of the computation of such amount. The prepayment shall be made on the
Proposed Prepayment Date except as provided in Section 8.3(f).
(f) Deferral Pending Change in Control. The obligation of the Company to
prepay Notes pursuant to the offers accepted in accordance with Section 8.3(d)
is subject to the occurrence of the Change in Control in respect of which such
offers and acceptances shall have been made. In the event that such Change in
Control does not occur on the Proposed Prepayment Date in respect thereof, the
prepayment shall be deferred until and shall be made on the date on which such
Change in Control occurs. The Company shall keep each holder of Notes reasonably
and timely informed of
(i) any such deferral of the date of prepayment,
(ii) the date on which such Change in Control and the prepayment are
expected to occur, and
(iii) any determination by the Company that efforts to effect such Change
in Control have ceased or been abandoned (in which case the offers and
acceptances made pursuant to this Section 8.3 in respect of such Change in
Control shall be deemed rescinded).
(g) Officer's Certificate. Each offer to prepay the Notes pursuant to this
Section 8.3 shall be accompanied by a certificate, executed by a Senior
Financial Officer and dated the date of such offer, specifying:
(i) that such offer is made pursuant to this Section 8.3;
(ii) the Proposed Prepayment Date;
(iii) the last date upon which the offer can be accepted or rejected, and
setting forth the consequences of failing to provide an acceptance or rejection,
as provided in Section 8.3(d);
(iv) the principal amount of each Note offered to be prepaid;
(v) the estimated Make-Whole Amount, if any, due in connection with such
prepayment (calculated as if the date of such notice were the date of the
prepayment), setting forth the details of such computation;
(vi) the interest that would be due on each Note offered to be prepaid,
accrued to the Proposed Prepayment Date;
(vii) that the conditions of this Section 8.3 have been fulfilled; and
(viii) in reasonable detail, the nature and date or proposed date of the
Change in Control.
(h) Effect on Required Payments. The amount of each payment of the
principal of the Notes of any series made pursuant to this Section 8.3 shall be
applied against and reduce each of the then remaining principal payments of the
Notes of such series due pursuant to Section 8.1 by a percentage equal to the
aggregate principal amount of the Notes of such series so paid divided by the
aggregate principal amount of the Notes of such series outstanding immediately
prior to such payment.
(i) "Change in Control" Defined. "Change in Control" means the acquisition,
directly or indirectly, by any Person or Persons (other than members of the
Management Group) acting in concert of control or ownership (beneficially or
otherwise) of more than 50% (by number of shares) of the issued and outstanding
Voting Stock of the Company.
(j) "Control Event" Defined. "Control Event" means:
(i) the execution by the Company or any of its Subsidiaries or Affiliates
of any agreement or letter of intent with respect to any proposed transaction or
event or series of transactions or events which, individually or in the
aggregate, may reasonably be expected to result in a Change in Control,
(ii) the execution of any written agreement which, when fully performed by
the parties thereto, would result in a Change in Control, or
(iii) the making of any written offer by any person (as such term is used
in section 13(d) and section 14(d)(2) of the Exchange Act as in effect on the
date of the Closing) or related persons constituting a group (as such term is
used in Rule 13d-5 under the Exchange Act as in effect on the date of the
Closing) to the holders of the common stock of the Company, which offer, if
accepted by the requisite number of holders, would result in a Change in
Control.
(k) "Management Group" Defined. "Management Group" means any three of the
individuals listed in the Memorandum as President, Chief Financial Officer, and
Executive Vice President of the Company, and President of each of Xxxx
Manufacturing and Services, Inc., Xxxx Power Services, Inc. and Xxxx Process and
Industrial Group, Inc.
8.4 Allocation of Partial Prepayments.
All partial prepayments of the Series A Notes and the Series B Notes
pursuant to Section 8.1 shall be allocated to all outstanding Notes of the
applicable series ratably in accordance with the unpaid principal amounts
thereof. All partial prepayments of the Notes pursuant to Section 8.2 shall be
allocated to all outstanding Notes (without regard to series) ratably in
accordance with the unpaid principal amounts thereof.
8.5 Maturity; Surrender, etc.
In the case of each prepayment of Notes pursuant to this Section 8, the
principal amount of each Note to be prepaid shall mature and become due and
payable on the date fixed for such prepayment, together with interest on such
principal amount accrued to such date and the applicable Make-Whole Amount, if
any. From and after such date, unless the Company shall fail to pay such
principal amount when so due and payable, together with the interest and
Make-Whole Amount, if any, as aforesaid, interest on such principal amount shall
cease to accrue. Any Note paid or prepaid in full shall be surrendered to the
Company and cancelled and shall not be reissued, and no Note shall be issued in
lieu of any prepaid principal amount of any Note.
8.6 No Other Optional Prepayments or Purchase of Notes.
The Company will not, and will not permit any Affiliate to, purchase,
redeem, pay, prepay or otherwise acquire, directly or indirectly, any of the
outstanding Notes except upon the payment or prepayment of the Notes in
accordance with the terms of this Agreement and the Notes. The Company will
promptly cancel all Notes acquired by it or any Affiliate pursuant to any
payment, prepayment or purchase of Notes pursuant to any provision of this
Agreement and no Notes may be issued in substitution or exchange for any such
Notes.
8.7 Make-Whole Amount.
The term "Make-Whole Amount" means, with respect to any Note, 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 Note 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 Note, the principal of such
Note that is to be prepaid pursuant to Section 8.2, Section 8.3 or Section 10.8,
or has become or is declared to be immediately due and payable pursuant to
Section 12.1, as the context requires.
"Discounted Value" means, with respect to the Called Principal of any Note,
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 such Note is payable) equal to the
Reinvestment Yield with respect to such Called Principal.
"Reinvestment Yield" means, with respect to the Called Principal of any
Note, 0.50% over the yield to maturity implied by (a) 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 "Page PX1" on the Bloomberg Financial Market Service (or such other display
as may replace Page PX1 on the Bloomberg Financial Market Service) 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 (b) if such yields
are not reported as of such time or the yields reported as 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 (i)
converting U.S. Treasury xxxx quotations to bond-equivalent yields in accordance
with accepted financial practice and (ii) interpolating linearly between (1) the
actively traded U.S. Treasury security with the duration closest to and greater
than the Remaining Average Life and (2) the actively traded U.S. Treasury
security with the duration 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 (a) such Called Principal into (b) the sum of the products obtained by
multiplying (i) the principal component of each Remaining Scheduled Payment with
respect to such Called Principal by (ii) 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 Note, 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 such Note, 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, Section 8.3, Section 10.8 or Section 12.1.
"Settlement Date" means, with respect to the Called Principal of any Note,
the date on which such Called Principal is to be prepaid pursuant to Section
8.2, Section 8.3 or Section 10.8, or has become or is declared to be immediately
due and payable pursuant to Section 12.1, as the context requires.
9. AFFIRMATIVE COVENANTS.
The Company covenants that so long as any of the Notes are outstanding:
9.1 Compliance with Law.
The Company will and will cause each of its Subsidiaries to comply with all
laws, ordinances or governmental rules or regulations to which each of them is
subject, including, without limitation, Environmental Laws, and will obtain and
maintain in effect all licenses, certificates, permits, franchises and other
governmental authorizations necessary to the ownership of their respective
properties or to the conduct of their respective businesses, in each case to the
extent necessary to ensure that non-compliance with such laws, ordinances or
governmental rules or regulations or failures to obtain or maintain in effect
such licenses, certificates, permits, franchises and other governmental
authorizations would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
9.2 Insurance.
The Company will and will cause each of its Subsidiaries to maintain, with
financially sound and reputable insurers, insurance with respect to their
respective properties and businesses against such casualties and contingencies,
of such types, on such terms and in such amounts (including deductibles,
co-insurance and self-insurance, if adequate reserves are maintained with
respect thereto) as is customary in the case of entities of established
reputations engaged in the same or a similar business and similarly situated.
9.3 Maintenance of Properties.
The Company will and will cause each of its Subsidiaries to maintain and
keep, or cause to be maintained and kept, their respective properties in good
repair, working order and condition (other than ordinary wear and tear), so that
the business carried on in connection therewith may be properly conducted at all
times, provided that this Section shall not prevent the Company or any
Subsidiary from discontinuing the operation and the maintenance of any of its
properties if such discontinuance is desirable in the conduct of its business
and the Company has concluded that such discontinuance would not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect.
9.4 Payment of Taxes and Claims.
The Company will and will cause each of its Subsidiaries to file all tax
returns required to be filed in any jurisdiction and to pay and discharge all
taxes shown to be due and payable on such returns and all other taxes,
assessments, governmental charges, or levies imposed on them or any of their
properties, assets, income or franchises, to the extent such taxes, assessments,
charges or levies have become due and payable and before they have become
delinquent and all claims for which sums have become due and payable that have
or will become a Lien on properties or assets of the Company or any Subsidiary,
provided that neither the Company nor any Subsidiary need pay any such tax or
assessment or claims if (a) the amount, applicability or validity thereof is
contested by the Company or such Subsidiary on a timely basis in good faith and
in appropriate proceedings, and the Company or such Subsidiary has established
adequate reserves therefor in accordance with GAAP on the books of the Company
or such Subsidiary or (b) the nonpayment of all such taxes, assessments, charges
and levies in the aggregate would not reasonably be expected to have a Material
Adverse Effect.
9.5 Corporate Existence, etc.
Subject to Section 10.7, the Company will at all times preserve and keep in
full force and effect its corporate existence. Subject to Sections 10.7 and
10.8, the Company will at all times preserve and keep in full force and effect
the corporate existence of each of its Subsidiaries (unless merged into the
Company or a Subsidiary) and all rights and franchises of the Company and its
Subsidiaries unless, in the good faith judgment of the Company, the termination
of or failure to preserve and keep in full force and effect such corporate
existence, right or franchise would not, individually or in the aggregate, have
a Material Adverse Effect.
9.6 New Subsidiaries.
(a) Guaranty Agreement. The Company will cause each Person that, after the
date of the Closing, becomes a direct or indirect Significant Subsidiary of the
Company, to become a Guarantor under the Guaranty Agreement by executing and
delivering to each holder of Notes a Joinder Agreement in the form attached to
the Guaranty Agreement as Annex 2. Each such Joinder Agreement shall be
accompanied by copies of the constitutive documents of such Subsidiary and
corporate resolutions (or equivalent) authorizing such transaction, in each case
certified as true and correct by a Responsible Officer of the Company and an
officer of such Subsidiary.
(b) Security Documents. The Company will execute, and cause each such
Subsidiary delivering a Joinder Agreement to execute, and deliver to each holder
of Notes and the Collateral Agent, all Security Documents that in the opinion of
the Collateral Agent are necessary to create and preserve the Liens with respect
to such new Subsidiary as are provided in the Security Documents on the
properties of the Initial Guarantors.
(c) "Significant Subsidiary" Defined. "Significant Subsidiary" means any
Subsidiary organized under the laws of the United States or any state thereof,
other than a non-operating Subsidiary having de minimis assets, and any other
Subsidiary that at any time becomes liable in respect of any Guaranty of any of
the obligations under the Bank Loan Agreement.
9.7 Pari Passu.
The Company covenants that its obligations under the Notes and under this
Agreement and the Other Agreements do and will rank at least pari passu with all
its other present and future Bank Debt and all other Debt, if any, secured by
the Collateral.
10. NEGATIVE COVENANTS.
The Company covenants that so long as any of the Notes are outstanding:
10.1 Transactions with Affiliates.
The Company will not, and will not permit any Subsidiary to, enter into
directly or indirectly any transaction or group of related transactions
(including, without limitation, the purchase, lease, sale or exchange of
properties of any kind or the rendering of any service) with any Affiliate
(other than the Company or another Subsidiary), except in the ordinary course
and pursuant to the reasonable requirements of the Company's or such
Subsidiary's business and upon fair and reasonable terms no less favorable to
the Company or such Subsidiary than would be obtainable in a comparable
arm's-length transaction with a Person not an Affiliate.
10.2 Line of Business.
The Company will not, and will not permit any of its Subsidiaries to,
engage in any business if, as a result, the general nature of the business in
which the Company and its Subsidiaries, taken as a whole, would then be engaged
would be substantially changed from the general nature of the business in which
the Company and its Subsidiaries, taken as a whole, are engaged on the date of
this Agreement as described in the Memorandum.
10.3 Maintenance of Consolidated Adjusted Net Worth.
The Company will not, at any time, permit Consolidated Adjusted Net Worth
to be less than the sum of
(a) $100,000,000 plus
(b) an aggregate amount equal to 50% of Consolidated Net Earnings (but, in
each case, only if a positive number) for each completed fiscal year of the
Company beginning with the fiscal year ended August 31, 1998.
10.4 Consolidated Fixed Charges Coverage Ratio.
The Company will not, at the end of any fiscal quarter of the Company,
permit the Pro Forma Consolidated Fixed Charges Coverage Ratio to be less than
2.00 to 1.00, in each case in respect of the period of four consecutive fiscal
quarters then ended.
10.5 Limitation on Debt.
(a) Limitation on Funded Debt. The Company will not, and will not permit
any of its Subsidiaries to, create, assume, incur, guaranty or otherwise become
obligated in respect of any Funded Debt, except:
(i) Funded Debt evidenced by the Notes and the Guaranty Agreement;
(ii) Funded Debt of any Subsidiary owing to the Company or a Wholly-Owned
Subsidiary;
(iii) Funded Debt in existence as of the date of the Closing (after giving
effect to the application of the proceeds of the Notes pursuant to Section 5.14)
and described in Schedule 5.15;
(iv) Funded Debt of the Company or any Subsidiary extending, renewing or
refunding any then existing Funded Debt that was originally incurred in
compliance with clause (iii) of this Section 10.5(a), provided that the
principal amount of such new Funded Debt does not exceed the principal amount of
such extended, renewed or refunded Funded Debt outstanding immediately prior to
the incurrence of such new Funded Debt; and
(v) additional Funded Debt of the Company and its Subsidiaries not
otherwise permitted under clause (i), clause (ii), clause (iii) or clause (iv)
above, provided that at the time of the incurrence thereof and after giving
effect thereto and to the application of the proceeds thereof, Consolidated
Funded Debt would not exceed 60% of Consolidated Total Capitalization.
(b) Limitation on Priority Debt. The Company will not at any time permit
Priority Debt of the Company and its Subsidiaries (determined without
duplication) to exceed 20% of Consolidated Adjusted Net Worth.
(c) Debt of Acquired Subsidiaries. Any Person becoming a Subsidiary after
the date hereof shall be deemed to have incurred all of its then outstanding
Debt at the time it becomes a Subsidiary.
10.6 Liens.
(a) Negative Pledge. The Company will not, and will not permit any of its
Subsidiaries to, directly or indirectly create, assume, incur or suffer to be
created, assumed or incurred or to exist (upon the happening of a contingency or
otherwise), any Lien on or with respect to any property or asset (including,
without limitation, any document or instrument in respect of goods or accounts
receivable) of the Company or any such Subsidiary, whether now owned or held or
hereafter acquired, or any income or profits therefrom, or assign or otherwise
convey any right to receive income or profits, except:
(i) Taxes, etc. -- Liens for taxes, assessments or other governmental
charges that are not yet due and payable or the payment of which is not at the
time required by Section 9.4;
(ii) Legal Proceedings -- Liens
(A) arising from judicial attachments and judgments,
(B) securing appeal bonds, supersedeas bonds, and
(C) arising in connection with court proceedings (including, without
limitation, surety bonds and letters of credit or any other instrument serving a
similar purpose), provided that the execution or other enforcement of such Liens
is effectively stayed and the claims secured thereby are being actively
contested in good faith and by appropriate proceedings;
(iii) Ordinary Course Liens -- Liens (other than any Lien imposed by ERISA)
incurred or deposits made in the ordinary course of business
(A) in connection with workers' compensation, unemployment insurance,
social security and other like laws,
(B) to secure (or to obtain letters of credit that secure) the performance
of tenders, statutory obligations, surety and performance bonds (of a type other
than set forth in Section 10.6(a)(ii)), bids, leases (other than Capital
Leases), purchase, construction or sales contracts and other similar
obligations, in each case not incurred or made in connection with the borrowing
of money, the obtaining of advances or credit or the payment of the deferred
purchase price of property,
(C) to secure the claims or demands of materialmen, mechanics, carriers,
warehousemen, vendors, repairmen, landlords, lessors and other like Persons,
arising in the ordinary course of business, and
(D) in the nature of reservations, exceptions, encroachments, easements,
rights-of-way, covenants, conditions, restrictions, leases and other similar
title exceptions or encumbrances affecting real property, provided that (1) any
amounts secured by such Liens are not overdue and (2) such Liens do not, in the
aggregate, materially detract from the value of such property or materially
impair the use of such property in the conduct of the business of the Company,
or the conduct of the business of the Company and its Subsidiaries taken as a
whole;
(iv) (A) Existing Liens -- Liens in existence as of the date of the Closing
securing Debt and listed in Schedule 5.15, and
(B) Renewals -- Liens securing renewals, extensions (as to time) and
refinancings of Debt secured by the Liens listed in Schedule 5.15, provided that
the amount of Debt secured by each such Lien is not increased in excess of the
amount of Debt outstanding on the date of such renewal, extension or
refinancing, and none of such Liens is extended to include any additional
property of the Company or any Subsidiary;
(v) Intra-Group Liens -- Liens on property of the Company or any of its
Subsidiaries securing Debt owing to the Company or to any of its Subsidiaries;
(vi) Purchase Money Liens -- Liens on tangible property (or any improvement
thereon) acquired or constructed by the Company or any Subsidiary after the date
of the Closing to secure Debt of the Company or such Subsidiary incurred in
connection with such acquisition or construction, provided that
(A) no such Lien shall extend to or cover any property other than the
property (or improvement thereon) being acquired or constructed,
(B) the amount of Debt secured by any such Lien shall not exceed an amount
equal to the Fair Market Value (as determined in good faith by the Company) of
the property (or improvement thereon) being acquired or constructed, determined
at the time of such acquisition or at the time of substantial completion of such
construction, and
(C) such Lien shall be created concurrently with or within 180 days after
such acquisition or the substantial completion of such construction;
(vii) Acquisition Liens -- Liens existing on property of a Person
immediately prior to its being consolidated with or merged into the Company or a
Subsidiary or its becoming a Subsidiary, or any Lien existing on any property
acquired by the Company or any Subsidiary at the time such property is so
acquired (whether or not the Debt secured thereby shall have been assumed),
provided that
(A) no such Lien shall have been created or assumed in contemplation of
such consolidation or merger or such Person's becoming a Subsidiary or such
acquisition of property,
(B) each such Lien shall extend solely to the item or items of property so
acquired and, if required by the terms of the instrument originally creating
such Lien, other property which is an improvement to or is acquired for specific
use in connection with such acquired property, and
(C) the principal amount of the Debt secured by any such Lien shall at no
time exceed an amount equal to the lesser of (1) the cost to the Company or such
Subsidiary of the property (or improvement thereon) so acquired and (2) the Fair
Market Value (as determined in good faith by the board of directors of the
Company or such Subsidiary) of such property (or improvement thereon) at the
time of such transaction;
(viii) Security Documents -- the Lien of the Collateral Agent under the
Security Documents; and
(ix) Priority Debt -- Liens securing Debt (other than any Bank Debt) of the
Company or any Subsidiary and not otherwise permitted by clauses (i) through
(viii), inclusive, of this Section 10.6(a), but only to the extent that the Debt
secured by each such Lien is, at the time of the incurrence of such Debt,
permitted to be incurred under Section 10.5(a)(v) and Section 10.5(b).
(b) Equal and Ratable Lien; Equitable Lien. In case any property shall be
subjected to a Lien in violation of this Section 10.6, the Company will
forthwith make or cause to be made, to the fullest extent permitted by
applicable law, provision whereby the Notes will be secured equally and ratably
with all other obligations secured thereby pursuant to such agreements and
instruments as shall be approved by the Required Holders, and the Company will
cause to be delivered to each holder of a Note an opinion of independent counsel
to the effect that such agreements and instruments are enforceable in accordance
with their terms, and in any such case the Notes shall have the benefit, to the
full extent that, and with such priority as, the holders of Notes may be
entitled under applicable law, of an equitable Lien on such property securing
the Notes. Such violation of this Section 10.6 will constitute an Event of
Default hereunder, whether or not any such provision is made pursuant to this
Section 10.6(b).
(c) Financing Statements. The Company will not, and will not permit any of
its Subsidiaries to, sign or file a financing statement under the Uniform
Commercial Code of any jurisdiction that names the Company or such Subsidiary as
debtor, or sign any security agreement authorizing any secured party thereunder
to file any such financing statement, except, in any such case, a financing
statement filed or to be filed to perfect or protect a security interest that
the Company or such Subsidiary is entitled to create, assume or incur, or permit
to exist, under the foregoing provisions of this Section 10.6 or to evidence for
informational purposes a lessor's interest in property leased to the Company or
any such Subsidiary.
(d) Liens of Subsidiaries. Each Person that becomes a Subsidiary after the
date of the Closing will be deemed to have granted on the date such Person
becomes a Subsidiary all the Liens in existence on its property on such date.
10.7 Merger, Consolidation, etc.
The Company will not, and will not permit any of its Subsidiaries to,
consolidate with or merge with any other corporation or Transfer substantially
all of its assets in a single transaction or series of transactions to any
Person (except that a Subsidiary of the Company may (x) consolidate with or
merge with, or Transfer substantially all of its assets in a single transaction
or series of transactions to, the Company (with the Company being the survivor
thereof) or a Subsidiary and (y) Transfer all of its assets in compliance with
the provisions of Section 10.8), provided that the foregoing restriction does
not apply to the consolidation or merger of the Company with, or the Transfer of
substantially all of the assets of the Company in a single transaction or series
of transactions to, any Person so long as:
(a) the successor formed by such consolidation or the survivor of such
merger or the Person that acquires by Transfer substantially all of the assets
of the Company as an entirety, as the case may be (the "Successor Corporation"),
shall be a solvent corporation organized and existing under the laws of the
United States of America, any state thereof or the District of Columbia;
(b) if the Company is not the Successor Corporation, such corporation and
each of its domestic Subsidiaries shall have executed and delivered to each
holder of Notes its assumption of the due and punctual performance and
observance of each covenant and condition of the Financing Documents to which it
is or is to become a party, pursuant to documents in form and substance
satisfactory to the Required Holders, and the Company shall have caused to be
delivered to each holder an opinion, in form and substance satisfactory to the
Required Holders, of independent counsel reasonably satisfactory to the Required
Holders, to the effect that all agreements or instruments effecting such
assumption are enforceable in accordance with their terms and comply with the
terms hereof; and
(c) immediately after giving effect to such transaction no Default or Event
of Default would exist.
No such Transfer of substantially all of the assets of the Company shall
have the effect of releasing the Company or any Successor Corporation from its
liability under the Financing Documents.
10.8 Sale of Assets, etc.
(a) Sale of Assets, etc. The Company will not, and will not permit any of
its Subsidiaries to, make any Asset Disposition, unless:
(i) in the good faith opinion of the Company, such Asset Disposition is in
exchange for consideration having a Fair Market Value at least equal to that of
the property exchanged; and
(ii) immediately after giving effect to such Asset Disposition:
(A) no Default or Event of Default would exist; and
(B) the ratio (expressed as a percentage) of
(I) the aggregate amount of the obligations (including the Notes) secured
by the Collateral at such time, to
(II) the Fair Market Value of the Collateral at such time,
would not exceed 80%; and
(C) the Disposition Value of all property that was the subject of any Asset
Disposition occurring on or after the date of the Closing up to and including
the date of such Asset Disposition would not exceed 25% of Consolidated Total
Assets determined as of the end of the then most recently ended fiscal quarter.
If the Net Proceeds Amount for any Transfer is applied to a Debt Prepayment
Application, as more particularly provided in subsection (b) of this Section
10.8, concurrently with such Transfer, or a Property Reinvestment Application,
within 12 months after such Transfer, then such Transfer, only for the purpose
of determining compliance with clause (a)(ii)(B) of this Section 10.8 as of any
date, shall be deemed not to be an Asset Disposition.
(b) Debt Prepayment Offer. In connection with any Transfer consummated
after the date of the Closing and any Debt Prepayment Application by the Company
pursuant to subsection (a) of this Section 10.8 with respect thereto, the
following procedure will apply:
(i) The Company shall provide written notice to each holder of Notes of,
and such written notice shall constitute, an irrevocable offer by the Company to
prepay a principal amount of the Notes of each such holder equal to such
holder's Ratable Portion of the Net Proceeds Amount with respect to such
Transfer, together with accrued interest with respect to such principal amount
being prepaid, and the Make-Whole Amount with respect to such principal amount.
Such written notice shall be given to each holder of Notes not less than 30 days
and not more than 60 days prior to the actual date of prepayment (the "Debt
Prepayment Application Date"), and shall set forth:
(A) the Debt Prepayment Application Date,
(B) the principal amount of the Notes to be so prepaid, the amount of
accrued interest thereon being paid, and the estimated Make-Whole Amount due in
connection with such prepayment (calculated as if the date of such notice were
the date of the prepayment), setting forth the details of such computation, and
(C) a statement describing the Transfer in respect of such prepayment and a
calculation of the Net Proceeds Amount in respect thereof.
(ii) Each holder of a Note that fails to respond to such offer in writing
at least 10 days prior to the Debt Prepayment Application Date shall be deemed
to have accepted such offer. The Company may retain for its own purposes the
Ratable Portion of any rejecting holder.
(iii) Any partial prepayment of the Notes pursuant to this Section 10.8
shall reduce the principal amount of each required prepayment of the Notes
becoming due under Section 8.1 on and after the date of such prepayment and the
principal amount of the required payment due on the maturity date of the Notes
in the same proportion as the aggregate unpaid principal amount of the Notes is
reduced as a result of such partial prepayment.
11. EVENTS OF DEFAULT.
An "Event of Default" shall exist if any of the following conditions or
events shall occur and be continuing:
(a) the Company defaults in the payment of any principal or Make-Whole
Amount, if any, on any Note when the same becomes due and payable, whether at
maturity or at a date fixed for prepayment or by declaration or otherwise; or
(b) the Company defaults in the payment of any interest on any Note for
more than five Business Days after the same becomes due and payable; or
(c) (i) the Company defaults in the performance of or compliance with any
term contained in any of Sections 10.1, 10.2 or 10.5 through 10.8, inclusive, or
Section 7.1(d), or
(ii) the Company defaults in the performance of or compliance with any term
contained in Section 10.3 or Section 10.4 and such default is not remedied
within 15 days after the occurrence thereof; or
(d) any Obligor defaults in the performance of or compliance with any term
contained herein (other than those referred to in paragraphs (a), (b) and (c) of
this Section 11) or in any other Financing Document and such default is not
remedied within 30 days after the earlier of (i) a Responsible Officer obtaining
actual knowledge of such default and (ii) the Company receiving written notice
of such default from any holder of a Note; or
(e) any representation or warranty made in writing by or on behalf of any
Obligor or by any officer of such Obligor in any Financing Document or in any
writing furnished in connection with the transactions contemplated by any
Financing Document proves to have been false or incorrect in any material
respect on the date as of which made; or
(f) (i) the Company or any Subsidiary is in default (as principal or as
guarantor or other surety) in the payment of any principal of or premium or
make-whole amount or interest on any Indebtedness (other than Indebtedness under
this Agreement, the Other Agreements and the Notes) beyond any period of grace
provided with respect thereto, that individually or together with such other
Indebtedness as to which any such failure exists has an aggregate outstanding
principal amount of at least $1,000,000, or
(ii) the Company or any Subsidiary is in default in the performance of or
compliance with any term of any evidence of any Indebtedness (other than
Indebtedness under this Agreement, the Other Agreements and the Notes), that
individually or together with such other Indebtedness as to which any such
failure exists has an aggregate outstanding principal amount of at least
$1,000,000, or of any mortgage, indenture or other agreement relating thereto or
any other condition exists, and as a consequence of such default or condition
such Indebtedness has become, or has been declared, due and payable before its
stated maturity or before its regularly scheduled dates of payment, or
(iii) the Company or any Subsidiary is in default in the performance of or
compliance with any term of any evidence of any Indebtedness (other than
Indebtedness under this Agreement, the Other Agreements and the Notes), that
individually or together with such other Indebtedness as to which any such
failure exists has an aggregate outstanding principal amount of at least
$4,000,000, or of any mortgage, indenture or other agreement relating thereto or
any other condition exists, and (A) such default has not been cured, remedied or
waived within 30 days after the occurrence of such default and (B) as a
consequence of such default or condition such Indebtedness has become, or has
been declared (or one or more Persons are entitled to declare such Indebtedness
to be), due and payable before its stated maturity or before its regularly
scheduled dates of payment, or
(iv) as a consequence of the occurrence or continuation of any event or
condition (other than the passage of time or the right of the holder of
Indebtedness to convert such Indebtedness into equity interests),
(A) the Company or any Subsidiary has become obligated to purchase or repay
Indebtedness before its regular maturity or before its regularly scheduled dates
of payment in an aggregate outstanding principal amount of at least $1,000,000,
or
(B) one or more Persons have the right to require the Company or any
Subsidiary so to purchase or repay such Indebtedness; or
(g) the Company or any Subsidiary (i) is generally not paying, or admits in
writing its inability to pay, its debts as they become due, (ii) files, or
consents by answer or otherwise to the filing against it of, a petition for
relief or reorganization or arrangement or any other petition in bankruptcy, for
liquidation or to take advantage of any bankruptcy, insolvency, reorganization,
moratorium or other similar law of any jurisdiction, (iii) makes an assignment
for the benefit of its creditors, (iv) consents to the appointment of a
custodian, receiver, trustee or other officer with similar powers with respect
to it or with respect to any substantial part of its property, (v) is
adjudicated as insolvent or to be liquidated, or (vi) takes corporate action for
the purpose of any of the foregoing; or
(h) a court or governmental authority of competent jurisdiction enters an
order appointing, without consent by the Company or any Subsidiary, a custodian,
receiver, trustee or other officer with similar powers with respect to the
Company or any Subsidiary or with respect to any substantial part of the
property of the Company or any Subsidiary, or constituting an order for relief
or approving a petition for relief or reorganization or any other petition in
bankruptcy or for liquidation or to take advantage of any bankruptcy or
insolvency law of any jurisdiction, or ordering the dissolution, winding-up or
liquidation of the Company or any Subsidiary, or any such petition shall be
filed against the Company or any Subsidiary and such petition shall not be
dismissed within 60 days; or
(i) a final judgment or judgments for the payment of money aggregating in
excess of $1,000,000 are rendered against one or more of the Company and its
Subsidiaries and which judgments are not, within 45 days after entry thereof,
bonded, discharged or stayed pending appeal, or are not discharged within 45
days after the expiration of such stay; or
(j) (i) the Guaranty Agreement shall cease to be in full force and effect
or shall be declared by a court or governmental authority of competent
jurisdiction to be void, voidable or unenforceable against any Guarantor,
(ii) the validity or enforceability of the Guaranty Agreement against any
Guarantor shall be contested by such Guarantor, the Company or any Affiliate, or
(iii) any Guarantor, the Company or any Affiliate shall deny that such
Guarantor has any further liability or obligation under the Guaranty Agreement;
or
(k) if (i) any Plan shall fail to satisfy the minimum funding standards of
ERISA or the Code for any plan year or part thereof or a waiver of such
standards or extension of any amortization period is sought or granted under
section 412 of the Code,
(ii) a notice of intent to terminate any Plan shall have been or is
reasonably expected to be filed with the PBGC or the PBGC shall have instituted
proceedings under ERISA section 4042 to terminate or appoint a trustee to
administer any Plan or the PBGC shall have notified the Company or any ERISA
Affiliate that a Plan may become a subject of any such proceedings,
(iii) the aggregate "amount of unfunded benefit liabilities" (within the
meaning of section 4001(a)(18) of ERISA) under all Plans, determined in
accordance with Title IV of ERISA, shall exceed $1,000,000,
(iv) the Company or any ERISA Affiliate shall have incurred or is
reasonably expected to incur any liability pursuant to Title I or IV of ERISA or
the penalty or excise tax provisions of the Code relating to employee benefit
plans,
(v) the Company or any ERISA Affiliate withdraws from any Multiemployer
Plan, or
(vi) the Company or any Subsidiary establishes or amends any employee
welfare benefit plan that provides post-employment welfare benefits in a manner
that would increase the liability of the Company or any Subsidiary thereunder;
and any such event or events described in clauses (i) through (vi) above,
either individually or together with any other such event or events, would
reasonably be expected to have a Material Adverse Effect.
As used in Section 11(k), the terms "employee benefit plan" and "employee
welfare benefit plan" shall have the respective meanings assigned to such terms
in section 3 of ERISA.
12. REMEDIES ON DEFAULT, ETC.
12.1 Acceleration.
(a) If an Event of Default with respect to the Company described in
paragraph (g) or paragraph (h) of Section 11 (other than an Event of Default
described in clause (i) of paragraph (g) or described in clause (vi) of
paragraph (g) by virtue of the fact that such clause encompasses clause (i) of
paragraph (g)) has occurred, all the Notes then outstanding shall automatically
become immediately due and payable.
(b) If any other Event of Default has occurred and is continuing, any
holder or holders of more than 66-_% in principal amount of the Notes at the
time outstanding may at any time at its or their option, by notice or notices to
the Company, declare all the Notes then outstanding to be immediately due and
payable.
(c) If any Event of Default described in paragraph (a) or (b) of Section 11
has occurred and is continuing, any holder or holders of Notes at the time
outstanding affected by such Event of Default may at any time, at its or their
option, by notice or notices to the Company, declare all the Notes held by it or
them to be immediately due and payable.
Upon any Notes becoming due and payable under this Section 12.1, whether
automatically or by declaration, such Notes will forthwith mature and the entire
unpaid principal amount of such Notes, plus (x) all accrued and unpaid interest
thereon and (y) the Make-Whole Amount determined in respect of such principal
amount (to the full extent permitted by applicable law), shall all be
immediately due and payable, in each and every case without presentment, demand,
protest or further notice, all of which are hereby waived. The Company
acknowledges, and the parties hereto agree, that each holder of a Note has the
right to maintain its investment in the Notes free from repayment by the Company
(except as herein specifically provided for) and that the provision for payment
of a Make-Whole Amount by the Company in the event that the Notes are prepaid or
are accelerated as a result of an Event of Default, is intended to provide
compensation for the deprivation of such right under such circumstances.
12.2 Other Remedies.
If any Default or Event of Default has occurred and is continuing, and
irrespective of whether any Notes have become or have been declared immediately
due and payable under Section 12.1, the holder of any Note at the time
outstanding may proceed to protect and enforce the rights of such holder by an
action at law, suit in equity or other appropriate proceeding, whether for the
specific performance of any agreement contained in any Financing Document, or
for an injunction against a violation of any of the terms thereof, or in aid of
the exercise of any power granted thereby or by law or otherwise.
12.3 Rescission.
At any time after any Notes have been declared due and payable pursuant to
clause (b) or clause (c) of Section 12.1, the holders of not less than a
majority in principal amount of the Notes then outstanding, by written notice to
the Company, may rescind and annul any such declaration and its consequences if
(a) the Company has paid all overdue interest on the Notes, all principal of and
Make-Whole Amount, if any, due and payable on any Notes other than by reason of
such declaration, and all interest on such overdue principal and Make-Whole
Amount, if any, and (to the extent permitted by applicable law) any overdue
interest in respect of the Notes, at the Default Rate, (b) all Events of Default
and Defaults, other than non-payment of amounts that have become due solely by
reason of such declaration, have been cured or have been waived pursuant to
Section 17, and (c) no judgment or decree has been entered for the payment of
any monies due pursuant hereto or to the Notes. No rescission and annulment
under this Section 12.3 will extend to or affect any subsequent Event of Default
or Default or impair any right consequent thereon.
12.4 No Waivers or Election of Remedies, Expenses, etc.
No course of dealing and no delay on the part of any holder of any Note in
exercising any right, power or remedy shall operate as a waiver thereof or
otherwise prejudice such holder's rights, powers or remedies. No right, power or
remedy conferred by any Financing Document upon any holder of any Note shall be
exclusive of any other right, power or remedy referred to herein or therein or
now or hereafter available at law, in equity, by statute or otherwise. Without
limiting the obligations of the Company under Section 15, the Company will pay
to the holder of each Note on demand such further amount as shall be sufficient
to cover all costs and expenses of such holder incurred in any enforcement or
collection under this Section 12, including, without limitation, reasonable
attorneys' fees, expenses and disbursements.
13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES.
13.1 Registration of Notes.
The Company shall keep at its principal executive office a register for the
registration and registration of transfers of Notes. The name and address of
each holder of one or more Notes, each transfer thereof and the name and address
of each transferee of one or more Notes shall be registered in such register.
Prior to due presentment for registration of transfer, the Person in whose name
any Note shall be registered shall be deemed and treated as the owner and holder
thereof for all purposes hereof, and the Company shall not be affected by any
notice or knowledge to the contrary. The Company shall give to any holder of a
Note that is an Institutional Investor promptly upon request therefor, a
complete and correct copy of the names and addresses of all registered holders
of Notes.
13.2 Transfer and Exchange of Notes.
Upon surrender of any Note at the principal executive office of the Company
for registration of transfer or exchange (and in the case of a surrender for
registration of transfer, duly endorsed or accompanied by a written instrument
of transfer duly executed by the registered holder of such Note or his attorney
duly authorized in writing and accompanied by the address for notices of each
transferee of such Note or part thereof), the Company shall execute and deliver,
at the Company's expense (except as provided below), one or more new Notes (as
requested by the holder thereof) in exchange therefor, in the same series and
aggregate principal amount equal to the unpaid principal amount of the
surrendered Note. Each such new Note shall be payable to such Person as such
holder may request and shall be substantially in the form of Exhibit 1A or
Exhibit 1B, as the case may be. Each such new Note shall be dated and bear
interest from the date to which interest shall have been paid on the surrendered
Note or dated the date of the surrendered Note if no interest shall have been
paid thereon. The Company may require payment of a sum sufficient to cover any
stamp tax or governmental charge imposed in respect of any such transfer of
Notes. Notes shall not be transferred in denominations of less than $100,000,
provided that if necessary to enable the registration of transfer by a holder of
its entire holding of Notes, one Note may be in a denomination of less than
$100,000. Any transferee, by its acceptance of a Note registered in its name (or
the name of its nominee), shall be deemed to have made the representation set
forth in Section 6.2.
13.3 Replacement of Notes.
Upon receipt by the Company of evidence reasonably satisfactory to it of
the ownership of and the loss, theft, destruction or mutilation of any Note
(which evidence shall be, in the case of an Institutional Investor, notice from
such Institutional Investor of such ownership and such loss, theft, destruction
or mutilation), and
(a) in the case of loss, theft or destruction, of indemnity reasonably
satisfactory to it (provided that if the holder of such Note is, or is a nominee
for, an original purchaser or an Institutional Investor, such Person's own
unsecured agreement of indemnity shall be deemed to be satisfactory), or
(b) in the case of mutilation, upon surrender and cancellation thereof, the
Company at its own expense shall execute and deliver, in lieu thereof, a new
Note, dated and bearing interest from the date to which interest shall have been
paid on such lost, stolen, destroyed or mutilated Note or dated the date of such
lost, stolen, destroyed or mutilated Note if no interest shall have been paid
thereon.
14. PAYMENTS ON NOTES.
14.1 Place of Payment.
Subject to Section 14.2, payments of principal, Make-Whole Amount, if any,
and interest becoming due and payable on the Notes shall be made in Baton Rouge,
Louisiana at the principal office of the Company in such jurisdiction. The
Company may at any time thereafter, by notice to each holder of a Note, change
the place of payment of the Notes so long as such place of payment shall be
either a principal office of the Company in the United States or a principal
office of a bank or trust company in the United States.
14.2 Home Office Payment.
So long as you or your nominee shall be the holder of any Note, and
notwithstanding anything contained in Section 14.1 or in such Note to the
contrary, the Company will pay all sums becoming due on such Note for principal,
Make-Whole Amount, if any, and interest by the method and at the address
specified for such purpose below your name in Schedule A, or by such other
method or at such other address as you shall have from time to time specified to
the Company in writing for such purpose, without the presentation or surrender
of such Note or the making of any notation thereon, except that upon written
request of the Company made concurrently with or reasonably promptly after
payment or prepayment in full of any Note, you shall surrender such Note for
cancellation, reasonably promptly after any such request, to the Company at its
principal executive office or at the place of payment most recently designated
by the Company pursuant to Section 14.1. Prior to any sale or other disposition
of any Note held by you or your nominee you will, at your election, either
endorse thereon the amount of principal paid thereon and the last date to which
interest has been paid thereon or surrender such Note to the Company in exchange
for a new Note or Notes pursuant to Section 13.2. The Company will afford the
benefits of this Section 14.2 to any Institutional Investor that is the direct
or indirect transferee of any Note purchased by you under this Agreement and
that has made the same agreement relating to such Note as you have made in this
Section 14.2.
15. EXPENSES, ETC.
15.1 Transaction Expenses.
Whether or not the transactions contemplated by the Financing Documents are
consummated, the Company will pay all costs and expenses (including reasonable
attorneys' fees of a special counsel and, if reasonably required, local or other
counsel) incurred by you and each Other Purchaser or holder of a Note in
connection with such transactions and in connection with any amendments, waivers
or consents under or in respect of the Financing Documents (whether or not such
amendment, waiver or consent becomes effective), including, without limitation:
(a) the costs and expenses incurred in enforcing or defending (or determining
whether or how to enforce or defend) any rights under the Financing Documents or
in responding to any subpoena or other legal process or informal investigative
demand issued in connection with the Financing Documents, or by reason of being
a holder of any Note, and (b) the costs and expenses, including financial
advisors' fees, incurred in connection with the insolvency or bankruptcy of the
Company or any Subsidiary or in connection with any work-out or restructuring of
the transactions contemplated by the Financing Documents. The Company will pay,
and will save you and each other holder of a Note harmless from, all claims in
respect of any fees, costs or expenses if any, of brokers and finders (other
than those retained by you).
15.2 Survival.
The obligations of the Company under this Section 15 will survive the
payment or transfer of any Note, the enforcement, amendment or waiver of any
provision of any Financing Document, and the termination of any Financing
Document.
16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT.
All representations and warranties contained in any Financing Document
shall survive the execution and delivery of this Agreement and the Notes, the
purchase or transfer by you of any Note or portion thereof or interest therein
and the payment of any Note, and may be relied upon by any subsequent holder of
a Note, regardless of any investigation made at any time by or on behalf of you
or any other holder of a Note. All statements contained in any certificate or
other instrument delivered by or on behalf of the Company pursuant to any
Financing Document shall be deemed representations and warranties of the Company
under this Agreement. Subject to the preceding sentence, the Financing Documents
embody the entire agreement and understanding between you and the Company and
supersede all prior agreements and understandings relating to the subject matter
hereof.
17. AMENDMENT AND WAIVER.
17.1 Requirements.
This Agreement and the Notes may be amended, and the observance of any term
hereof or of the Notes may be waived (either retroactively or prospectively),
with (and only with) the written consent of the Company and the Required
Holders, except that (a) no amendment or waiver of any of the provisions of any
of Sections 1, 2, 3, 4, 5, 6 and 21, or any defined term (as it is used
therein), will be effective as to you unless consented to by you in writing, and
(b) no such amendment or waiver may, without the written consent of the holder
of each Note at the time outstanding affected thereby, (i) subject to the
provisions of Section 12 relating to acceleration or rescission, change the
amount or time of any prepayment or payment of principal of, or reduce the rate
or change the time of payment or method of computation of interest or of the
Make-Whole Amount on, the Notes, (ii) change the percentage of the principal
amount of the Notes the holders of which are required to consent to any such
amendment or waiver, or (iii) amend any of Sections 8, 11(a), 11(b), 12, 17 and
20.
17.2 Solicitation of Holders of Notes.
(a) Solicitation. The Company will provide each holder of the Notes
(irrespective of the amount of Notes then owned by it) with sufficient
information, sufficiently far in advance of the date a decision is required, to
enable such holder to make an informed and considered decision with respect to
any proposed amendment, waiver or consent in respect of any of the provisions
hereof or of the Notes. The Company will deliver executed or true and correct
copies of each amendment, waiver or consent effected pursuant to the provisions
of this Section 17 to each holder of outstanding Notes promptly following the
date on which it is executed and delivered by, or receives the consent or
approval of, the requisite holders of Notes.
(b) Payment. The Company will not directly or indirectly pay or cause to be
paid any remuneration, whether by way of supplemental or additional interest,
fee or otherwise, or grant any security, to any holder of Notes as consideration
for or as an inducement to the entering into by any holder of Notes of any
waiver or amendment of any of the terms and provisions hereof unless such
remuneration is concurrently paid, or security is concurrently granted, on the
same terms, ratably to each holder of Notes then outstanding even if such holder
did not consent to such waiver or amendment.
17.3 Binding Effect, etc.
Any amendment or waiver consented to as provided in this Section 17 applies
equally to all holders of Notes and is binding upon them and upon each future
holder of any Note and upon the Company without regard to whether such Note has
been marked to indicate such amendment or waiver. No such amendment or waiver
will extend to or affect any obligation, covenant, agreement, Default or Event
of Default not expressly amended or waived or impair any right consequent
thereon. No course of dealing between the Company and the holder of any Note nor
any delay in exercising any rights hereunder or under any Note shall operate as
a waiver of any rights of any holder of such Note. As used herein, the term
"this Agreement" and references thereto shall mean this Agreement as it may from
time to time be amended or supplemented.
17.4 Notes held by Company, etc.
Solely for the purpose of determining whether the holders of the requisite
percentage of the aggregate principal amount of Notes then outstanding approved
or consented to any amendment, waiver or consent to be given under any of the
Financing Documents, or have directed the taking of any action provided in any
of the Financing Documents to be taken upon the direction of the holders of a
specified percentage of the aggregate principal amount of Notes then
outstanding, Notes directly or indirectly owned by the Company or any of its
Affiliates shall be deemed not to be outstanding.
18. NOTICES.
All notices and communications provided for hereunder shall be in writing
and sent (a) by telecopy if the sender on the same day sends a confirming copy
of such notice by a recognized overnight delivery service (charges prepaid), or
(b) by registered or certified mail with return receipt requested (postage
prepaid), or (c) by a recognized overnight delivery service (with charges
prepaid). Any such notice must be sent:
(i) if to you or your nominee, to you or it at the address specified for
such communications in Schedule A, or at such other address as you or it shall
have specified to the Company in writing,
(ii) if to any other holder of any Note, to such holder at such address as
such other holder shall have specified to the Company in writing, or
(iii) if to the Company, to the Company at its address set forth at the
beginning hereof to the attention of the Chief Financial Officer, telecopier:
(000) 000-0000, or at such other address as the Company shall have specified to
the holder of each Note in writing.
Notices under this Section 18 will be deemed given only when actually received.
19. REPRODUCTION OF DOCUMENTS.
This Agreement and all documents relating hereto, including, without
limitation, (a) consents, waivers and modifications that may hereafter be
executed, (b) documents received by you at the Closing (except the Notes
themselves), and (c) financial statements, certificates and other information
previously or hereafter furnished to you, may be reproduced by you by any
photographic, photostatic, microfilm, microcard, miniature photographic or other
similar process and you may destroy any original document so reproduced. The
Company agrees and stipulates that, to the extent permitted by applicable law,
any such reproduction shall be admissible in evidence as the original itself in
any judicial or administrative proceeding (whether or not the original is in
existence and whether or not such reproduction was made by you in the regular
course of business) and any enlargement, facsimile or further reproduction of
such reproduction shall likewise be admissible in evidence. This Section 19
shall not prohibit the Company or any other holder of Notes from contesting any
such reproduction to the same extent that it could contest the original, or from
introducing evidence to demonstrate the inaccuracy of any such reproduction.
20. CONFIDENTIAL INFORMATION.
For the purposes of this Section 20, "Confidential Information" means
information delivered to you by or on behalf of the Company or any Subsidiary in
connection with the transactions contemplated by or otherwise pursuant to this
Agreement that is proprietary in nature and that was clearly marked or labeled
or otherwise adequately identified when received by you as being confidential
information of the Company or such Subsidiary, provided that such term does not
include information that
(a) was publicly known or otherwise known to you prior to the time of such
disclosure,
(b) subsequently becomes publicly known through no act or omission by you
or any person acting on your behalf,
(c) otherwise becomes known to you other than through disclosure by the
Company or any Subsidiary, or
(d) constitutes financial statements delivered to you under Section 7.1
that are otherwise publicly available.
You will maintain the confidentiality of such Confidential Information in
accordance with procedures adopted by you in good faith to protect confidential
information of third parties delivered to you, provided that you may deliver or
disclose Confidential Information to:
(i) your directors, officers, employees, agents, attorneys and affiliates
(to the extent such disclosure reasonably relates to the administration of the
investment represented by your Notes),
(ii) your financial advisors and other professional advisors who agree to
hold confidential the Confidential Information substantially in accordance with
the terms of this Section 20,
(iii) any other holder of any Note,
(iv) any Institutional Investor to which you sell or offer to sell such
Note or any part thereof or any participation therein (if such Person has agreed
in writing prior to its receipt of such Confidential Information to be bound by
the provisions of this Section 20),
(v) any Person from which you offer to purchase any Security of the Company
(if such Person has agreed in writing prior to its receipt of such Confidential
Information to be bound by the provisions of this Section 20),
(vi) any federal or state regulatory authority having jurisdiction over
you,
(vii) the National Association of Insurance Commissioners or any similar
organization, or any nationally recognized rating agency that requires access to
information about your investment portfolio or
(viii) any other Person to which such delivery or disclosure may be
necessary or appropriate
(A) to effect compliance with any law, rule, regulation or order applicable
to you,
(B) in response to any subpoena or other legal process,
(C) in connection with any litigation to which you are a party, or
(D) if an Event of Default has occurred and is continuing, to the extent
you may reasonably determine such delivery and disclosure to be necessary or
appropriate in the enforcement or for the protection of the rights and remedies
under the Financing Documents.
Each holder of a Note, by its acceptance of a Note, will be deemed to have
agreed to be bound by and to be entitled to the benefits of this Section 20 as
though it were a party to this Agreement. On reasonable request by the Company
in connection with the delivery to any holder of a Note of information required
to be delivered to such holder under this Agreement or requested by such holder
(other than a holder that is a party to this Agreement or its nominee), such
holder will enter into an agreement with the Company embodying the provisions of
this Section 20.
21. SUBSTITUTION OF PURCHASER.
You shall have the right to substitute any one of your Affiliates as the
purchaser of the Notes that you have agreed to purchase hereunder, by written
notice to the Company, which notice shall be signed by both you and such
Affiliate, shall contain such Affiliate's agreement to be bound by this
Agreement and shall contain a confirmation by such Affiliate of the accuracy
with respect to it of the representations set forth in Section 6. Upon receipt
of such notice, wherever the word "you" is used in this Agreement (other than in
this Section 21), such word shall be deemed to refer to such Affiliate in lieu
of you. In the event that such Affiliate is so substituted as a purchaser
hereunder and such Affiliate thereafter transfers to you all of the Notes then
held by such Affiliate, upon receipt by the Company of notice of such transfer,
wherever the word "you" is used in this Agreement (other than in this Section
21), such word shall no longer be deemed to refer to such Affiliate, but shall
refer to you, and you shall have all the rights of an original holder of the
Notes under this Agreement.
22. MISCELLANEOUS.
22.1 Additional Notes.
Subject to the terms and provisions hereof (including, but not limited to,
Section 10.5), the Company may, from time to time, issue and sell additional
promissory notes pursuant to agreements which may incorporate by reference all
or certain of the provisions of this Agreement and the Other Agreements. Such
incorporation by reference shall not have the effect of constituting such
promissory notes as Notes for any purpose, whether for acceleration of the
Notes, rescission of such acceleration, or the exercise of any other amendments
or waivers of the provisions hereof or of the Other Agreements, or otherwise.
22.2 Successors and Assigns.
All covenants and other agreements contained in this Agreement by or on
behalf of any of the parties hereto bind and inure to the benefit of their
respective successors and assigns (including, without limitation, any subsequent
holder of a Note) whether so expressed or not.
22.3 Payments Due on Non-Business Days; When Payments Deemed Received.
(a) Payments Due on Non-Business Days. Anything in this Agreement or the
Notes to the contrary notwithstanding, any payment of principal of or Make-Whole
Amount or interest on any Note that is due on a date other than a Business Day
shall be made on the next succeeding Business Day without including the
additional days elapsed in the computation of the interest payable on such next
succeeding Business Day.
(b) Payments, When Received. Any payment to be made to the holders of Notes
hereunder or under the Notes shall be deemed to have been made on the Business
Day such payment actually becomes available to such holder at such holder's bank
prior to 12:00 noon (local time of such bank).
22.4 Severability.
Any provision of this Agreement that 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 (to the full extent permitted by law) not invalidate or
render unenforceable such provision in any other jurisdiction.
22.5 Construction.
Each covenant contained herein shall be construed (absent express provision
to the contrary) as being independent of each other covenant contained herein,
so that compliance with any one covenant shall not (absent such an express
contrary provision) be deemed to excuse compliance with any other covenant.
Where any provision herein refers to action to be taken by any Person, or which
such Person is prohibited from taking, such provision shall be applicable
whether such action is taken directly or indirectly by such Person.
22.6 Counterparts.
This Agreement may be executed in any number of counterparts, each of which
shall be an original but all of which together shall constitute one instrument.
Each counterpart may consist of a number of copies hereof, each signed by less
than all, but together signed by all, of the parties hereto.
22.7 Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE
RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE OF CONNECTICUT
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.
[Remainder of page intentionally blank. Next page is signature page.]
If you are in agreement with the foregoing, please sign the form of
agreement on the accompanying counterpart of this Agreement and return it to the
Company, whereupon the foregoing shall become a binding agreement between you
and the Company.
Very truly yours,
THE XXXX GROUP INC.
By
---------------------------------------------------
Name:
Title:
The foregoing is hereby
agreed to as of the
date thereof.
[PURCHASER]
By -----------------------------------------------------
Name:
Title:
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
Purchaser Name NATIONWIDE LIFE INSURANCE COMPANY
Name in Which Note is Registered Nationwide Life Insurance Company
Note Registration Number; Series; Series A;
Principal Amount RA-1; $20,000,000
Payment on Account of Note
Federal Funds Wire Transfer
Method The Bank of New York
ABA #000-000-000
Account Information BNF: IOC566
F/A/O Nationwide Life Insurance Company
Attn: P&I Department
Ref:See "Accompanying Information" below
Accompanying Information Name of Company: THE XXXX GROUP INC.
Description of
Security: 6.44% Series A Senior Secured
Note due 2005
PPN: 820280 A* 6
Due Date and Application (as among
principal, Make-Whole Amount and
interest) of the payment being made:
Address for Notices Related to
Payments Nationwide Life Insurance Company
x/x Xxx Xxxx xx Xxx Xxxx
X.X. Xxx 00000
Attn: P & X Xxxxxxxxxx
Xxxxxx, XX 00000
Fax: 000-000-0000
with a copy to
Nationwide Life Insurance Company
Attn: Investment Accounting
Xxx Xxxxxxxxxx Xxxxx (0-00-00)
Xxxxxxxx, Xxxx 00000-0000
Fax: 000-000-0000
Address for all other Notices Nationwide Life Insurance Company
Attn: Corporate Fixed-Income Securities
Xxx Xxxxxxxxxx Xxxxx (0-00-00)
Xxxxxxxx, Xxxx 00000-0000
Fax: 000-000-0000
Other Instructions NATIONWIDE LIFE INSURANCE COMPANY
By_______________________
Name:
Title:
Instructions re Delivery of Notes The Bank of New York
One Wall Street
3rd Floor-Window A
Xxx Xxxx, XX 00000
F/A/O Nationwide Life Insurance Company
Acct #267829
Tax Identification Number 00-0000000
Purchaser Name CONNECTICUT GENERAL LIFE INSURANCE COMPANY
Name in Which Note is Registered CIG & Co.
Note Registration Number; Series;
Principal Amount Series B;
RB-1; $11,400,000
RB-2; $3,000,000
RB-3; $3,000,000
Payment on Account of Note
Federal Funds Wire Transfer
Method Chase NYC/CTR/
BNF=CIGNA Private Placements/AC=9009001802
Account Information ABA #000000000
Custody Account No. G-05033
Ref: See "Accompanying Information" below
Accompanying Information OBI=[name of company; description of security;
interest rate, maturity date; PPN; due date
and application (as among principal, premium
and interest of the payment being made);
contact name and phone.]
Name of Company: THE XXXX GROUP INC.
Description of
Security: 6.93% Series B Senior Secured Note
due 2008
PPN: 820280 A@ 4
Due Date and Application (as among principal,
Make-Whole Amount and interest) of the
payment being made:
Address for Notices Related
to Payments CIG & Co.
c/o CIGNA Investments, Inc.
Attention: Securities Processing S-309
000 Xxxxxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000-0000
CIG & Co.
c/o CIGNA Investments, Inc.
Attention: Private Securities - S307
Operations Group
000 Xxxxxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000-0000
Fax: 000-000-0000
with a copy to:
Chase Manhattan Bank, N.A.
Private Placement Servicing
X.X. Xxx 0000
Xxxxxxx Xxxxx Xxxxxxx
Xxx Xxxx, XX 00000
Attention: CIGNA Private Placements
Fax: 000-000-0000/1005
Address for all other Notices
CIG & Co.
c/o CIGNA Investments, Inc.
Attention: Private Securities Division - S-307
000 Xxxxxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000-0000
Fax: 860-726-7203Other Instructions
CONNECTICUT GENERAL LIFE INSURANCE COMPANY
By CIGNA Investments, Inc.
By_____________________________
Name:
Title:
Instructions re Delivery of Notes
The Chase Manhattan Bank
0 Xxx Xxxx Xxxxx
00xx Xxxxx Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxx
Tax Identification Number 00-0000000
Purchaser Name INSURANCE COMPANY OF NORTH AMERICA
Name in Which Note is Registered CIG & Co.
Note Registration Number; Series; RB-4; Series B;
Principal Amount $3,600,000
Payment on Account of Note Federal Funds Wire Transfer
Method Chase NYC/CTR/
BNF=CIGNA Private Placements/
AC=9009001802
Account Information ABA #000000000
Custody Account No. G-06283
Ref:See "Accompanying Information" below
Accompanying Information OBI=[name of company; description of
security; interest rate, maturity date;
PPN; due date and application (as among
principal, premium and interest of the
payment being made); contact name and
phone.]
Name of Company: THE XXXX GROUP INC.
Description of
Security: 6.93% Series B Senior Secured
Note due 2008
PPN: 820280 A@ 4
Due Date and Application (as among
principal, Make-Whole Amount and
interest) of the payment being made:
Address for Notices Related to Payments
CIG & Co.
c/o CIGNA Investments, Inc.
Attention: Securities Processing S-309
000 Xxxxxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000-0000
CIG & Co.
c/o CIGNA Investments, Inc.
Attention: Private Securities - S-307
Operations Group
000 Xxxxxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000-0000
Fax: 000-000-0000
with a copy to:
Chase Manhattan Bank, N.A.
Private Placement Servicing
X.X. Xxx 0000
Xxxxxxx Xxxxx Xxxxxxx
Xxx Xxxx, XX 00000
Attention: CIGNA Private Placements
Fax: 000-000-0000/1005
Address for all other Notices
CIG & Co.
c/o CIGNA Investments, Inc.
Attention: Private Securities Division - S-307
000 Xxxxxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000-0000
Fax: 860-726-7203Other Instructions
INSURANCE COMPANY OF NORTH AMERICA
By CIGNA Investments, Inc.
By_____________________________
Name:
Title:
Instructions re Delivery of Notes
The Chase Manhattan Bank
0 Xxx Xxxx Xxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx ZimmerTax Identification Number
00-0000000
Purchaser Name CONNECTICUT GENERAL LIFE INSURANCE COMPANY ON BEHALF
OF ONE OR MORE SEPARATE ACCOUNTS
Name in Which Note
is Registered CIG & Co.
Note Registration
Number; Series; RB-5; Series B;
Principal Amount $3,000,000
Payment on Account of Note
Federal Funds Wire Transfer
Method
Chase NYC/CTR/
BNF=CIGNA Private Placements/AC=9009001802
Account Information
ABA #000000000
Custody Account No. G-05034
Ref: See "Accompanying Information" below
Accompanying Information
OBI=[name of company; description of security; interest rate, maturity date;
PPN; due date and application (as among principal, premium and interest of the
payment being made); contact name and phone.]
Name of Company: THE XXXX GROUP INC.
Description of
Security: 6.93% Series B Senior Secured Note
due 2008
PPN: 820280 A@ 4
Due Date and Application (as among principal,
Make-Whole Amount and interest)of the payment
being made:
Address for Notices Related to Payments
CIG & Co.
c/o CIGNA Investments, Inc.
Attention: Securities Processing S-309
000 Xxxxxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000-0000
CIG & Co.
c/o CIGNA Investments, Inc.
Attention: Private Securities - S-307
Operations Group
000 Xxxxxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000-0000
Fax: 000-000-0000
with a copy to:
Chase Manhattan Bank, N.A.
Private Placement Servicing
X.X. Xxx 0000
Xxxxxxx Xxxxx Xxxxxxx
Xxx Xxxx, XX 00000
Attention: CIGNA Private Placements
Fax: 000-000-0000/1005
Address for all other Notices
CIG & Co.
c/o CIGNA Investments, Inc.
Attention: Private Securities Division - S-307
000 Xxxxxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000-0000
Fax: 000-000-0000
Other Instructions
CONNECTICUT GENERAL LIFE INSURANCE
COMPANY ON BEHALF OF ONE OR MORE SEPARATE
ACCOUNTS By CIGNA Investments, Inc.
By_____________________________
Name:
Title:
Instructions re Delivery of Notes
The Chase Manhattan Bank
0 Xxx Xxxx Xxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxx
Tax Identification Number 00-0000000
Purchaser Name LIFE INSURANCE COMPANY OF NORTH AMERICA
Name in Which Note is Registered CIG & Co.
Note Registration Number; Series; RB-6; Series B;
Principal Amount $3,000,000
Payment on Account of Note
Federal Funds Wire Transfer
Method
Chase NYC/CTR/
BNF=CIGNA Private Placements/AC=9009001802
Account Information
ABA #000000000
Custody Account No. G-06286
Ref: See "Accompanying Information" below
Accompanying Information
OBI=[name of company; description of security; interest rate, maturity date;
PPN; due date and application (as among principal, premium and interest of the
payment being made); contact name and phone.]
Name of Company: THE XXXX GROUP INC.
Description of
Security: 6.93% Series B Senior Secured Note due 2008
PPN: 820280 A@ 4
Due Date and Application (as among principal, Make-Whole Amount and interest) of
the payment being made:
Address for Notices Related to Payments
CIG & Co.
c/o CIGNA Investments, Inc.
Attention: Securities Processing S-309
000 Xxxxxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000-0000
CIG & Co.
c/o CIGNA Investments, Inc.
Attention: Private Securities - S-307
Operations Group
000 Xxxxxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000-0000
Fax: 000-000-0000
with a copy to:
Chase Manhattan Bank, N.A.
Private Placement Servicing
X.X. Xxx 0000
Xxxxxxx Xxxxx Xxxxxxx
Xxx Xxxx, XX 00000
Attention: CIGNA Private Placements
Fax: 000-000-0000/1005
Address for all other Notices
CIG & Co.
c/o CIGNA Investments, Inc.
Attention: Private Securities Division - S-307
000 Xxxxxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000-0000
Fax: 000-000-0000
Other Instructions
LIFE INSURANCE COMPANY OF NORTH AMERICA
By CIGNA Investments, Inc.
By_____________________________
Name:
Title:
Instructions re Delivery of Notes
The Chase Manhattan Bank
0 Xxx Xxxx Xxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxx
Tax Identification Number 00-0000000
Purchaser Name NORTHERN LIFE INSURANCE COMPANY
Name in Which Note is Registered NORTHERN LIFE INSURANCE COMPANY
Note Registration Number; Series; RB-7; Series B
Principal Amount $6,000,000
Payment on Account of Note
Federal Funds Wire Transfer
Method
US Bank N.A./Mpls.
000 0xx Xxx. S.
Account Information
Xxxxxxxxxxx, XX 00000
Acct. #160232376105
ABA #000000000
ATTN: Securities Accounting
Ref: See "Accompanying Information" below
Accompanying Information
Name of Company: THE XXXX GROUP INC.
Description of
Security: 6.93% Series B Senior Secured Note due 2008
PPN: 820280 A@ 4
Due Date and Application (as among principal, Make-Whole Amount and interest) of
the payment being made:Address for all Notices, including Notices Related to
Payments ReliaStar Investment Research, Inc.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000-0000
Attn: Xxxx Xxxxxx
Tel: 000-000-0000
Fax: 612-372-5368Other Instructions
NORTHERN LIFE INSURANCE COMPANY
By_______________________
Name:
Title:
Instructions re Delivery of Notes
ReliaStar Investment Research, Inc.
000 Xxxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000-0000
Attn: Xxxx Xxxxxxx
Tax Identification Number 00-0000000
Purchaser Name RELIASTAR LIFE INSURANCE COMPANY OF NEW YORK
Name in Which Note is Registered
XXXXXX & CO.
Note Registration Number; Series; RB-8; Series B
Principal Amount $2,000,000
Payment on Account of Note
Federal Funds Wire Transfer
Method
Chase Manhattan
New York, NY
Account Information
A/C #544755102
FF/C #G53095 Dept 571 NonStandard Securities Acct #1960
ABA #000000000
Ref: See "Accompanying Information" below
Accompanying Information
Name of Company: THE XXXX GROUP INC.
Description of
Security: 6.93% Series B Senior Secured Note due 2008
PPN: 820280 A@ 4
Due Date and Application (as among principal, Make-Whole Amount and interest) of
the payment being made:Address for all Notices, including Notices Related to
Payments ReliaStar Investment Research, Inc.
000 Xxxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000-0000
Ref: Xxxx Xxxxxx
Tel: 000-000-0000
Fax: 612-372-5368Other Instructions
RELIASTAR LIFE INSURANCE COMPANY OF NEW YORK
By_______________________
Name:
Title:
Instructions re Delivery of Notes
ReliaStar Investment Research, Inc.
000 Xxxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000-0000
Attn: Xxxx Xxxxxxx
Tax Identification Number 00-0000000
Purchaser Name RELIASTAR UNITED SERVICES LIFE INSURANCE COMPANY
Name in Which Note
is Registered XXXXXXX & CO.
Note Registration Number;
Series; RB-9; Series B
Principal Amount $2,000,000
Payment on Account of Note
Federal Funds Wire Transfer
Method
Bankers Trust
New York, NY
Account Information
ABA #000000000
A/C #99000739
FBO ReliaStar United Services Life Ins.
Acct 92574
Ref: See "Accompanying Information" below
Accompanying Information
Name of Company: THE XXXX GROUP INC.
Description of
Security: 6.93% Series B Senior Secured Note due 2008
PPN: 820280 A@ 4
Due Date and Application (as among principal, Make-Whole Amount and interest) of
the payment being made:
Address for all Notices, including Notices Related to Payments
ReliaStar Investment Research, Inc.
000 Xxxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000-0000
Ref: Xxxx Xxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
Other Instructions
RELIASTAR UNITED SERVICES LIFE INSURANCE COMPANY
By_______________________
Name:
Title:
Instructions re Delivery of Notes
ReliaStar Investment Research, Inc.
000 Xxxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000-0000
Attn: Xxxx Xxxxxxx
Tax Identification Number 00-0000000
Purchaser Name WASHINGTON SQUARE ADVISERS PRIVATE PLACEMENT TRUST FUND
Name in Which Note
is Registered WASHINGTON SQUARE ADVISERS PRIVATE PLACEMENT TRUST FUND
Note Registration Number; Series;
Principal Amount RB-10; Series B $2,000,000
Payment on Account of Note
Federal Funds Wire Transfer
Method
First Bank N.A. (DTC#2839; Inst. ID#93696; Agent Bank#93697)
000 0xx Xxx. S.
Account Information
Xxxxxxxxxxx, XX 00000
Acct #10604960
ABA #000000000
F/F/C First Trust Company
A/C 180121167365
ITG A/C 47300020
ATTN: Washington Square Advisers Private Placement Trust Fund
Ref: See "Accompanying Information" below
Accompanying Information
Name of Company: THE XXXX GROUP INC.
Description of
Security: 6.93% Series B Senior Secured Note due 2008
PPN: 820280 A@ 4
Due Date and Application (as among principal, Make-Whole Amount and interest) of
the payment being made:Address for all Notices, including Notices Related to
Payments Washington Square Advisers, Inc.
000 Xxxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000-0000
Ref: Xxxx Xxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
Other Instructions
WASHINGTON SQUARE ADVISERS PRIVATE PLACEMENT TRUST FUND
By_______________________
Name:
Title:Instructions re Delivery of Notes
Washington Square Advisers, Inc.
000 Xxxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000-0000
Attn: Xxxxx Xxxxxxx
Tax Identification Number 41-6424976MN
Tax Identification Number 3085334
Purchaser Name SECURITY CONNECTICUT LIFE INSURANCE COMPANY
Name in Which Note
is Registered XXXXXX & CO.
Note Registration
Number; Series; RB-11; Series B
Principal Amount $1,000,000
Payment on Account of Note
Federal Funds Wire Transfer
Method
Chase Manhattan Bank
Account Information
New York, New York
ABA #:000-000-000
Beneficiary Account #: 544755102
Reference: Xxxxxx & Co. (Nominee Name)
Tax I.D. #: 00-0000000
F/C #BS72152-07
Ref: See "Accompanying Information" belowAccompanying Information
Name of Company: THE XXXX GROUP INC.
Description of
Security: 6.93% Series B Senior Secured Note due 2008
PPN: 820280 A@ 4
Due Date and Application (as among principal, Make-Whole Amount and interest) of
the payment being made:
Address for Notices Related to Payments
Xxxxxx & Co.
c/o Chase Manhattan Bank
Dept. #3492
X.X. Xxx 00000
Xxxxxx, Xxx Xxxxxx 00000-0000
with a copy to:
ReliaStar Investment Research, Inc.
000 Xxxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000-0000
Ref: Xxxx Xxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
Address for all other Notices
ReliaStar Investment Research, Inc.
000 Xxxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000-0000
Ref: Xxxx Xxxxxx
Tel: 000-000-0000
Fax: 612-372-5368Other Instructions
SECURITY CONNECTICUT LIFE INSURANCE COMPANY
By_______________________
Name:
Title:
Instructions re Delivery of Notes
ReliaStar Investment Research, Inc.
000 Xxxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000-0000
Attn: Xxxx Xxxxxxx
Tax Identification Number 00-0000000
SCHEDULE B
DEFINED TERMS
As used herein, the following terms have the respective meanings set forth
below or set forth in the Section hereof following such term:
"Acquisition" means any acquisition, directly or indirectly, by the Company
or any Subsidiary, after the date of the Closing, of
(a) any Capital Stock of a Person that concurrently with such acquisition
becomes a Subsidiary, or
(b) all or substantially all of the assets of a Person.
"Affiliate" means, at any time, and with respect to any Person,
(a) any other Person that at such time directly or indirectly through one
or more intermediaries Controls, or is Controlled by, or is under common Control
with, such first Person, and
(b) any Person beneficially owning or holding, directly or indirectly, 10%
or more of any class of voting or equity interests of the Company or any
Subsidiary or any corporation of which the Company and its Subsidiaries
beneficially own or hold, in the aggregate, directly or indirectly, 10% or more
of any class of voting or equity interests.
As used in this definition, "Control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting securities, by
contract or otherwise. Unless the context otherwise clearly requires, any
reference to an "Affiliate" is a reference to an Affiliate of the Company.
"Agreement, this" is defined in Section 17.3.
"Asset Disposition" means any Transfer except:
(a) any Transfer from a Subsidiary to the Company or a Wholly-Owned
Subsidiary, or
(b) any Transfer made in the ordinary course of business and involving only
property that is either (i) inventory held for sale or (ii) equipment, fixtures,
supplies or materials no longer required in the operation of the business of the
Company or any of its Subsidiaries or that is obsolete.
"Bank Debt" means any Debt of the Company or any of its Subsidiaries owed
to any of the Banks under the Bank Loan Agreement or any related agreement,
instrument or other document.
"Bank Loan Agreement" means the Credit Agreement dated as of May 15, 1998,
among the Company, the Banks set forth on the signature pages thereof, and
Mercantile Business Credit Inc., as agent for such Banks, as may be amended,
restated, otherwise modified or replaced from time to time; provided that if any
such new agreement shall at any time be entered into by the Company, then
concurrently therewith the Company shall, unless otherwise agreed by the
Required Holders, cause the Banks under such new agreement to enter into a new
intercreditor agreement with the holders of the Notes substantially in the form
of the Intercreditor Agreement.
"Banks" means the banks initially party to the Bank Loan Agreement (namely,
Mercantile Business Credit Inc., City National Bank of Baton Rouge, Hibernia
National Bank, and Union Planters Bank, N.A.) and each other bank or other
Person from time to time acting as a lender or other provider of financial
accommodations to the Company or any Subsidiary under the Bank Loan Agreement.
"Business Day" means any day other than a Saturday, a Sunday or a day on
which commercial banks in New York City are required or authorized to be closed.
"Capital Lease" means, at any time, a lease with respect to which the
lessee is required concurrently to recognize the acquisition of an asset and the
incurrence of a liability in accordance with GAAP.
"Capital Lease Obligation" means, with respect to any Person and a Capital
Lease, the amount of the obligation of such Person as the lessee under such
Capital Lease that would, in accordance with GAAP, appear as a liability on a
balance sheet of such Person.
"Capital Stock" means any class of capital stock, share capital or similar
equity interest of a Person.
"Change in Control" is defined in Section 8.3(i).
"Closing" is defined in Section 3.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, and the rules and regulations promulgated thereunder from time to time.
"Collateral" has, at any time, the meaning specified in the Intercreditor
Agreement at such time.
"Collateral Agent" means Mercantile Business Credit Inc., as collateral
agent under the Security Documents and the Intercreditor Agreement, and any
successor or assign appointed in accordance with the provisions of the
Intercreditor Agreement.
"Company" is defined in the introductory sentence of this Agreement.
"Confidential Information" is defined in Section 20.
"Consolidated Adjusted Net Worth" means, at any time,
(a) the sum of (i) the par value (or value stated on the books of the
corporation) of the Capital Stock (but excluding treasury stock and capital
stock subscribed and unissued, and any Preferred Stock that is mandatorily
redeemable) of the Company and its Subsidiaries, plus (ii) the amount of the
paid-in capital and retained earnings of the Company and its Subsidiaries, plus
(iii) deferred income taxes of the Company and its Subsidiaries, in each case as
such amounts would be shown on a consolidated balance sheet of the Company and
its Subsidiaries as of such time prepared in accordance with GAAP, minus
(b) to the extent included in clause (a), all amounts properly attributable
to minority interests, if any, in the stock and surplus of Subsidiaries.
"Consolidated Fixed Charges" means, with respect to any period, the sum of
(a) Consolidated Interest Charges for such period plus (b) Consolidated Lease
Rentals for such period.
"Consolidated Funded Debt" means, as of any date of determination, the
total of all Funded Debt of the Company and its Subsidiaries outstanding on such
date, after eliminating all offsetting debits and credits between the Company
and its Subsidiaries and all other items required to be eliminated in the course
of the preparation of consolidated financial statements of the Company and its
Subsidiaries in accordance with GAAP.
"Consolidated Interest Charges" means, with respect to any period, the sum
(without duplication) of the following (in each case, eliminating all offsetting
debits and credits between the Company and its Subsidiaries and all other items
required to be eliminated in the course of the preparation of consolidated
financial statements of the Company and its Subsidiaries in accordance with
GAAP): (a) all interest expense in respect of Debt of the Company and its
Subsidiaries (including imputed interest on Capital Lease Obligations) deducted
in determining Consolidated Net Earnings for such period, plus (b) all debt
discount and expense amortized or required to be amortized in the determination
of Consolidated Net Earnings for such period.
"Consolidated Lease Rentals" means, with respect to any period, the sum of
the rental and other obligations required to be paid during such period by the
Company or any Subsidiary as lessee under all leases of real or personal
property (other than Capital Leases), excluding any amount required to be paid
by the lessee (whether or not therein designated as rental or additional rental)
on account of maintenance and repairs, insurance, taxes, assessments, water
rates and similar charges, provided that if, at the date of determination, any
such rental or other obligations are contingent or not otherwise definitely
determinable by the terms of the related lease, the amount of such obligations
(a) shall be assumed to be equal to the amount of such obligations for the
period of 12 consecutive calendar months immediately preceding the date of
determination or (b) if the related lease was not in effect during such
preceding 12-month period, shall be the amount estimated by a Senior Financial
Officer on a reasonable basis and in good faith.
"Consolidated Net Earnings" means, with reference to any period, the net
income (or loss) of the Company and its Subsidiaries for such period (taken as a
cumulative whole), as determined in accordance with GAAP, after eliminating all
offsetting debits and credits between the Company and its Subsidiaries and all
other items required to be eliminated in the course of the preparation of
consolidated financial statements of the Company and its Subsidiaries in
accordance with GAAP, provided that there shall be excluded:
(a) the income (or loss) of any Person accrued prior to the date it becomes
a Subsidiary or is merged into or consolidated with the Company or a Subsidiary,
and the income (or loss) of any Person, substantially all of the assets of which
have been acquired in any manner, realized by such other Person prior to the
date of acquisition,
(b) the income (or loss) of any Person (other than a Subsidiary) in which
the Company or any Subsidiary has an ownership interest, except to the extent
that any such income has been actually received by the Company or such
Subsidiary in the form of cash dividends or similar cash distributions,
(c) the undistributed earnings of any Subsidiary to the extent that the
declaration or payment of dividends or similar distributions by such Subsidiary
is not at the time permitted by the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to such Subsidiary,
(d) any restoration to income of any contingency reserve, except to the
extent that provision for such reserve was made out of income accrued during
such period,
(e) any aggregate net gain (but not any aggregate net loss) during such
period arising from the sale, conversion, exchange or other disposition of
capital assets (such term to include, without limitation, (i) all non-current
assets and, without duplication, (ii) the following, whether or not current: all
fixed assets, whether tangible or intangible, all inventory sold in conjunction
with the disposition of fixed assets, and all Securities),
(f) any gains resulting from any write-up of any assets (but not any loss
resulting from any write-down of any assets),
(g) any net gain from the collection of the proceeds of life insurance
policies,
(h) any gain arising from the acquisition of any Security, or the
extinguishment, under GAAP, of any Debt, of the Company or any Subsidiary,
(i) any net income or gain (but not any net loss) during such period from
(i) any change in accounting principles in accordance with GAAP, (ii) any prior
period adjustments resulting from any change in accounting principles in
accordance with GAAP, or (iii) any discontinued operations or the disposition
thereof,
(j) any deferred credit representing the excess of equity in any Subsidiary
at the date of acquisition over the cost of the investment in such Subsidiary,
(k) in the case of a successor to the Company by consolidation or merger or
as a transferee of its assets, any earnings of the successor corporation prior
to such consolidation, merger or transfer of assets,
(l) any portion of such net income that cannot be freely converted into
United States Dollars, and
(m) any net income or gain (or any net loss) during such period from any
extraordinary items, including, without limitation, foreign exchange gains or
losses.
"Consolidated Net Earnings Available for Fixed Charges" means, with respect
to any period, Consolidated Net Earnings for such period plus all amounts
deducted in the computation thereof on account of (a) Consolidated Fixed
Charges, (b) taxes imposed on or measured by income or excess profits and (c)
depreciation and amortization.
"Consolidated Total Assets" means, at any time, the total assets of the
Company and its Subsidiaries that would be shown as assets on a consolidated
balance sheet of the Company and its Subsidiaries as of such time prepared in
accordance with GAAP.
"Consolidated Total Capitalization" means, at any time, the sum of (a)
Consolidated Adjusted Net Worth at such time plus (b) Consolidated Funded Debt
at such time.
"Control Event" is defined in Section 8.3(j).
"Debt" means, with respect to any Person, without duplication,
(a) its liabilities for borrowed money and its redemption obligations in
respect of mandatorily redeemable Preferred Stock;
(b) its liabilities for the deferred purchase price of property acquired by
such Person (excluding accounts payable arising in the ordinary course of
business but including, without limitation, all liabilities created or arising
under any conditional sale or other title retention agreement with respect to
any such property);
(c) its Capital Lease Obligations;
(d) all liabilities for borrowed money secured by any Lien with respect to
any property owned by such Person (whether or not it has assumed or otherwise
become liable for such liabilities); and
(e) any Guaranty of such Person with respect to liabilities of a type
described in any of clauses (a) through (d) hereof; provided that, with respect
to the Company, Debt shall not include any unfunded obligations which may now or
hereafter exist with respect to Company's Plans.
"Debt Prepayment Application" means, with respect to any Transfer of
property by the Company or any Subsidiary, the application by the Company or
such Subsidiary of cash in an amount equal to the Net Proceeds Amount with
respect to such Transfer to pay Senior Debt of the Company or such Subsidiary
(other than Senior Debt owing to any of the Subsidiaries or any Affiliate and
Senior Debt in respect of any revolving credit or similar facility providing the
Company or such Subsidiary with the right to obtain loans or other extensions of
credit from time to time, except to the extent that in connection with such
payment of Senior Debt the availability of credit under such credit facility is
permanently reduced by an amount not less than the amount of such proceeds
applied to the payment of such Senior Debt), provided that in the course of
making such application the Company shall offer to prepay each outstanding Note
in accordance with Section 10.8(b) in a principal amount that equals the Ratable
Portion for such Note. If any holder of a Note fails to accept such offer of
prepayment, then, for purposes of the preceding sentence only, the Company
nevertheless will be deemed to have paid Senior Debt in an amount equal to the
Ratable Portion for such Note.
As used in this definition,
"Ratable Portion" means, for any Note, an amount equal to the product of
(a) the Net Proceeds Amount being so offered to the payment of Senior Debt,
multiplied by
(b) a fraction the numerator of which is the outstanding principal amount
of such Note and the denominator of which is the aggregate outstanding principal
amount of Senior Debt of the Company and its Subsidiaries.
"Senior Debt" means the Notes and any Debt of the Company or its
Subsidiaries that by its terms is not subordinated in right of payment to any
unsecured Debt of the Company or any Subsidiary.
"Debt Prepayment Application Date" is defined in Section 10.8(b).
"Default" means an event or condition the occurrence or existence of which
would, with the lapse of time or the giving of notice or both, become an Event
of Default.
"Default Rate" means that rate of interest that is the greater of (i) 2%
per annum above the rate of interest stated in clause (a) of the first paragraph
of the Notes or (ii) 2% over the rate of interest publicly announced from time
to time by Xxxxxx Guaranty Trust Company of New York in New York, New York (or
its successor) as its "base" or "prime" rate.
"Disposition Value" means, at any time, with respect to any property
(a) in the case of property that does not constitute Subsidiary Stock, the
book value thereof, valued at the time of such disposition in good faith by the
Company, and
(b) in the case of property that constitutes Subsidiary Stock, an amount
equal to that percentage of book value of the assets of the Subsidiary that
issued such stock as is equal to the percentage that the book value of such
Subsidiary Stock represents of the book value of all of the outstanding Capital
Stock of such Subsidiary (assuming, in making such calculations, that all
Securities convertible into such Capital Stock are so converted and giving full
effect to all transactions that would occur or be required in connection with
such conversion) determined at the time of the disposition thereof, in good
faith by the Company.
"Environmental Laws" means any and all Federal, state, local, and foreign
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses, agreements or governmental
restrictions relating to pollution and the protection of the environment or the
release of any materials into the environment, including but not limited to
those related to hazardous substances or wastes, air emissions and discharges to
waste or public systems.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the rules and regulations promulgated thereunder
from time to time in effect.
"ERISA Affiliate" means any trade or business (whether or not incorporated)
that is treated as a single employer together with the Company under section 414
of the Code.
"Event of Default" is defined in Section 11.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time.
"Fair Market Value" means, at any time and with respect to any property,
the sale value of such property that would be realized in an arm's-length sale
at such time between an informed and willing buyer and an informed and willing
seller (neither being under a compulsion to buy or sell).
"Financing Documents" means, collectively, this Agreement, the Other
Agreements, the Notes, the Guaranty Agreement, the Intercreditor Agreement, the
Security Agreements, the Pledge Agreements and any other Security Document
executed from time to time.
"Funded Debt" means, with respect to any Person, all Debt of such Person
which by its terms or by the terms of any instrument or agreement relating
thereto matures, or which is otherwise payable or unpaid, more than one year
from, or is directly or indirectly renewable or extendible at the option of the
obligor in respect thereof to a date more than one year (including, without
limitation, an option of such obligor under a revolving credit or similar
agreement obligating the lender or lenders to extend credit over a period of
more than one year) from, the date of the creation thereof, provided that Funded
Debt shall, as at any date of determination, include Current Maturities of
Funded Debt.
As used in this definition,
"Current Maturities of Funded Debt" means, at any time and with respect to
any item of Funded Debt, the portion of such Funded Debt outstanding at such
time which by the terms of such Funded Debt or the terms of any instrument or
agreement relating thereto is due on demand or one year or less from such time
(whether by sinking fund, other required prepayment or final payment at
maturity) and is not directly or indirectly renewable, extendible or refundable
at the option of the obligor under an agreement or firm commitment in effect at
such time to a date more than one year from such time.
"GAAP" means generally accepted accounting principles as in effect from
time to time in the United States of America.
"Governmental Authority" means
(a) the government of
(i) the United States of America or any state or other political
subdivision thereof, or
(ii) any jurisdiction in which the Company or any Subsidiary conducts all
or any part of its business, or that asserts jurisdiction over any properties of
the Company or any Subsidiary, or
(b) any entity exercising executive, legislative, judicial, regulatory or
administrative functions of, or pertaining to, any such government.
"Guarantor" means, at any time, each Person (including, without limitation,
each of the Initial Guarantors) that at such time is a guarantor under the
Guaranty Agreement.
"Guaranty" means, with respect to any Person, any obligation (except the
endorsement in the ordinary course of business of negotiable instruments for
deposit or collection) of such Person guaranteeing or in effect guaranteeing any
indebtedness, dividend or other obligation of any other Person in any manner,
whether directly or indirectly, including, without limitation, obligations
incurred through an agreement, contingent or otherwise, by such Person:
(a) to purchase such indebtedness or obligation or any property
constituting security therefor;
(b) to advance or supply funds (i) for the purchase or payment of such
indebtedness or obligation, or (ii) to maintain any working capital or other
balance sheet condition or any income statement condition of any other Person or
otherwise to advance or make available funds for the purchase or payment of such
indebtedness or obligation;
(c) to lease properties or to purchase properties or services primarily for
the purpose of assuring the owner of such indebtedness or obligation of the
ability of any other Person to make payment of the indebtedness or obligation;
or
(d) otherwise to assure the owner of such indebtedness or obligation
against loss in respect thereof.
In any computation of the indebtedness or other liabilities of the obligor
under any Guaranty, the indebtedness or other obligations that are the subject
of such Guaranty shall be assumed to be direct obligations of such obligor.
"Guaranty Agreement" is defined in Section 4.13.
"Hazardous Material" means any and all pollutants, toxic or hazardous
wastes or any other substances that might pose a hazard to health or safety, the
removal of which may be required or the generation, manufacture, refining,
production, processing, treatment, storage, handling, transportation, transfer,
use, disposal, release, discharge, spillage, seepage, or filtration of which is
or shall be restricted, prohibited or penalized by any applicable law
(including, without limitation, asbestos, urea formaldehyde foam insulation and
polychlorinated biphenyls).
"holder" means, with respect to any Note, the Person in whose name such
Note is registered in the register maintained by the Company pursuant to Section
13.1.
"Indebtedness" with respect to any Person means, at any time, without
duplication,
(a) its liabilities for borrowed money and its redemption obligations in
respect of mandatorily redeemable Preferred Stock;
(b) its liabilities for the deferred purchase price of property acquired by
such Person (excluding accounts payable arising in the ordinary course of
business but including all liabilities created or arising under any conditional
sale or other title retention agreement with respect to any such property);
(c) all Capital Lease Obligations of such Person;
(d) all liabilities for borrowed money secured by any Lien with respect to
any property owned by such Person (whether or not it has assumed or otherwise
become liable for such liabilities);
(e) all its liabilities in respect of letters of credit or instruments
serving a similar function issued or accepted for its account by banks and other
financial institutions (whether or not representing obligations for borrowed
money);
(f) Swaps of such Person; and
(g) any Guaranty of such Person with respect to liabilities of a type
described in any of clauses (a) through (f) hereof.
Indebtedness of any Person shall include all obligations of such Person of
the character described in clauses (a) through (g) to the extent such Person
remains legally liable in respect thereof notwithstanding that any such
obligation is deemed to be extinguished under GAAP.
"Initial Guarantors" means, collectively, each Subsidiary that enters into
the Guaranty Agreement on the date of the Closing.
"Institutional Investor" means (a) any original purchaser of a Note, (b)
any holder of a Note holding more than 5% of the aggregate principal amount of
the Notes then outstanding, and (c) any bank, trust company, savings and loan
association or other financial institution, any pension plan, any investment
company, any insurance company, any broker or dealer, or any other similar
financial institution or entity, regardless of legal form.
"Intercreditor Agreement" is defined in Section 4.8.
"Lien" means, with respect to any Person, any mortgage, lien, pledge,
charge, security interest or other encumbrance, or any interest or title of any
vendor, lessor, lender or other secured party to or of such Person under any
conditional sale or other title retention agreement or Capital Lease, upon or
with respect to any property or asset of such Person (including in the case of
stock, stockholder agreements, voting trust agreements and all similar
arrangements).
"Major Asset Disposition" means any Asset Disposition, directly or
indirectly, by the Company or any Subsidiary, after the date of the Closing, of
(a) all or substantially all of the Capital Stock or assets of a
Subsidiary; or
(B) any line of business of the Company and its Subsidiaries.
"Make-Whole Amount" is defined in Section 8.7.
"Management Group" is defined in Section 8.3(k).
"Material" means material in relation to the business, operations, affairs,
financial condition, assets, properties, or prospects of the Company and its
Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect on (a) the
business, operations, affairs, financial condition, assets or properties of the
Company and its Subsidiaries taken as a whole, or (b) the ability of the
Obligors, taken as a whole, to perform their obligations under the Financing
Documents, or (c) the validity of any of the Financing Documents, or (d) the
enforceability against the Obligors, taken as a whole, of the Financing
Documents.
"Memorandum" is defined in Section 5.3.
"Multiemployer Plan" means any Plan that is a "multiemployer plan" (as such
term is defined in section 4001(a)(3) of ERISA).
"Net Proceeds Amount" means, with respect to any Transfer of any property
by any Person, an amount equal to the difference of
(a) the aggregate amount of the consideration (valued at the Fair Market
Value of such consideration at the time of the consummation of such Transfer)
received by such Person in respect of such Transfer, minus
(b) all ordinary and reasonable out-of-pocket costs and expenses actually
incurred by such Person in connection with such Transfer.
"Notes" is defined in Section 1.
"Obligors" means the Company and each Guarantor.
"Officer's Certificate" means a certificate of a Senior Financial Officer
or of any other officer of the Company whose responsibilities extend to the
subject matter of such certificate.
"Other Agreements" is defined in Section 2.
"Other Purchasers" is defined in Section 2.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA or any successor thereto.
"Person" means an individual, partnership, corporation, limited liability
company, association, trust, unincorporated organization, or a government or
agency or political subdivision thereof.
"Plan" means an "employee benefit plan" (as defined in section 3(3) of
ERISA) that is or, within the preceding five years, has been established or
maintained, or to which contributions are or, within the preceding five years,
have been made or required to be made, by the Company or any ERISA Affiliate or
with respect to which the Company or any ERISA Affiliate may have any liability.
"Pledge Agreements" is defined in Section 4.10.
"Preferred Stock" means any class of Capital Stock of a Person that is
preferred over any other class of Capital Stock of such Person as to the payment
of dividends or other equity distributions or the payment of any amount upon
liquidation or dissolution of such Person.
"Priority Debt" means, at any time, without duplication, the sum of
(a) all Debt of the Company and its Subsidiaries secured by any Lien on any
property of the Company or any Subsidiary, other than any such Debt secured by
Liens permitted by any one or more of clauses (a)(i) through (a)(viii),
inclusive, of Section 10.6, plus
(b) all unsecured Debt of Subsidiaries,
provided that there shall be excluded from Priority Debt (i) Debt of any
Guarantor under the Guaranty Agreement, (ii) Debt of any Guarantor referred to
in the foregoing clause (i) under such Guarantor's guaranty of obligations under
the Bank Loan Agreement or any related agreement, instrument or other document,
so long as such obligations of such Guarantor are subject to the sharing
provisions of the Intercreditor Agreement, and (iii) any Debt of any Subsidiary
under clause (b) above owing solely to the Company or any Wholly-Owned
Subsidiary.
"Pro Forma Consolidated Fixed Charges Coverage Ratio" means, at any time,
the ratio of (a) Consolidated Net Earnings Available for Fixed Charges for the
immediately preceding period of four consecutive fiscal quarters of the Company
(for purposes of this definition, a "One Year Retrospective Period"), after
giving effect to the assumptions set forth in the last paragraph of this
definition, to (b) Consolidated Fixed Charges for such One Year Retrospective
Period, after giving effect to the assumptions set forth in the last paragraph
of this definition.
For purposes of determining "Consolidated Net Earnings Available for Fixed
Charges" and "Consolidated Fixed Charges" in this definition, any Acquisition or
Major Asset Disposition by the Company or any Subsidiary that is consummated
during any One Year Retrospective Period shall be deemed to have been
consummated as of the first day of such One Year Retrospective Period (and the
earnings and other results of operations during such period in respect of the
property acquired or disposed of shall accordingly be included in the case of an
Acquisition, or excluded in the case of an Asset Disposition, for purposes of
such determination) and any incurrence of Debt in connection with any such
Acquisition or repayment of Debt in connection with any such Major Asset
Disposition shall be deemed to have occurred as of such first day.
"property or properties" means, unless otherwise specifically limited, real
or personal property of any kind, tangible or intangible, xxxxxx or inchoate.
"Property Reinvestment Application" means, with respect to any Transfer of
property, the application of an amount equal to the Net Proceeds Amount with
respect to such Transfer to the acquisition by the Company or any Subsidiary of
operating assets of the Company or any Subsidiary of a nature generally similar,
and a value at least equivalent, to the property subject to such Transfer.
"Proposed Prepayment Date" is defined in Section 8.3(c).
"PTE" is defined in Section 6.2(a).
"QPAM Exemption" is defined in Section 6.2(d).
"Required Holders" means, at any time, the holder or holders of at least
66-_% in principal amount of the Notes at the time outstanding (exclusive of
Notes then owned by the Company or any of its Affiliates).
"Responsible Officer" means any Senior Financial Officer and any other
officer of the Company with responsibility for the administration of the
relevant portion of this Agreement.
"Securities Act" means the Securities Act of 1933, as amended from time to
time.
"Security" has the meaning set forth in section 2(1) of the Securities Act.
"Security Agreements" is defined in Section 4.9.
"Security Documents" means, collectively, the Security Agreements, the
Pledge Agreements and each other agreement, document or other instrument
relating to the Collateral executed from time to time, all as amended or
supplemented from time to time.
"Senior Financial Officer" means the chief financial officer, principal
accounting officer, treasurer or comptroller of the Company.
"Series A Notes" is defined in Section 1.1(a).
"Series B Notes" is defined in Section 1.1(b).
"Significant Subsidiary" is defined in Section 9.6(c).
"Source" is defined in Section 6.2.
"Subsidiary" means, as to any Person, any corporation, association or other
business entity in which such Person or one or more of its Subsidiaries or such
Person and one or more of its Subsidiaries owns sufficient equity or voting
interests to enable it or them (as a group) ordinarily, in the absence of
contingencies, to elect a majority of the directors (or Persons performing
similar functions) of such entity, and any partnership or joint venture if more
than a 50% interest in the profits or capital thereof is owned by such Person or
one or more of its Subsidiaries or such Person and one or more of its
Subsidiaries (unless such partnership or joint venture can and does ordinarily
take major business actions without the prior approval of such Person or one or
more of its Subsidiaries). Unless the context otherwise clearly requires, any
reference to a "Subsidiary" is a reference to a Subsidiary of the Company.
"Subsidiary Stock" means, with respect to any Person, the Capital Stock (or
any options or warrants to purchase stock or other Securities exchangeable for
or convertible into any Capital Stock) of any Subsidiary of such Person.
"Successor Corporation" is defined in Section 10.7(a).
"Swaps" means, with respect to any Person, payment obligations with respect
to interest rate swaps, currency swaps and similar obligations obligating such
Person to make payments, whether periodically or upon the happening of a
contingency. For the purposes of this Agreement, the amount of the obligation
under any Swap shall be the amount determined in respect thereof as of the end
of the then most recently ended fiscal quarter of such Person, based on the
assumption that such Swap had terminated at the end of such fiscal quarter, and
in making such determination, if any agreement relating to such Swap provides
for the netting of amounts payable by and to such Person thereunder or if any
such agreement provides for the simultaneous payment of amounts by and to such
Person, then in each such case, the amount of such obligation shall be the net
amount so determined.
"Transfer" means, with respect to any Person, any transaction in which such
Person sells, conveys, transfers or leases (as lessor) any of its property,
including, without limitation, Subsidiary Stock.
"Voting Stock" means Capital Stock of any class or classes of a corporation
the holders of which are ordinarily, in the absence of contingencies, entitled
to elect a majority of the corporate directors (or Persons performing similar
functions), irrespective of whether or not at the time stock of any of the class
or classes shall have or might have special voting power or rights by reason of
the happening of any contingency.
"Wholly-Owned Subsidiary" means, at any time, any Subsidiary 100% of all of
the equity interests (except directors' qualifying shares) and voting interests
of which are owned by any one or more of the Company and the Company's other
Wholly-Owned Subsidiaries at such time.
SCHEDULE 3
PAYMENT INSTRUCTIONS
BANK: MERCANTILE BANK
ST. LOUIS, MISSOURI
ABA #: 000000000
FOR CREDIT TO: THE XXXX GROUP INC.
ACCOUNT NO. 000-0000000
CONTACT: XXXXXXX XXXXX
(000) 000-0000
SCHEDULE 4.16
CHANGES IN CORPORATE STRUCTURE
[To be provided by the Company.]
SCHEDULE 5.3
DISCLOSURE MATERIALS
[To be provided by the Company.]
SCHEDULE 5.4
SUBSIDIARIES OF THE COMPANY AND OWNERSHIP OF SUBSIDIARY STOCK
[To be provided by the Company.]
SCHEDULE 5.5
FINANCIAL STATEMENTS
[To be provided by the Company.]
SCHEDULE 5.8
CERTAIN LITIGATION
[To be provided by the Company.]
SCHEDULE 5.11
PATENTS, ETC.
[To be provided by the Company.]
SCHEDULE 5.12
ERISA AFFILIATES
[To be provided by the Company.]
SCHEDULE 5.14
USE OF PROCEEDS
[To be provided by the Company.]
SCHEDULE 5.15
EXISTING DEBT AND LIENS (WITH THIRD PARTIES)
[To be provided by the Company.]
EXHIBIT 1A
FORM OF SERIES A NOTE
THE XXXX GROUP INC.
6.44% SERIES A SENIOR SECURED NOTE DUE MAY 21, 2005
No. RA-___ [Date]
$_______ PPN 820280 A* 6
FOR VALUE RECEIVED, the undersigned, THE XXXX GROUP INC. (herein called the
"Company"), a corporation organized and existing under the laws of the State of
Louisiana, hereby promises to pay to , or registered assigns, the principal sum
of DOLLARS ($_________) on May 21, 2005, 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 6.44% per annum ---------------------- -------------------------------
from the date hereof, payable semiannually on the 21st day of May and November
in each year, commencing with the May 21 or November 21 next succeeding 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, 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) 8.44% or (ii) 2% over the rate of
interest publicly announced from time to time by Xxxxxx Guaranty Trust Company
of New York in New York, New York (or its successor) as its "base" or "prime"
rate. Capitalized terms used herein and not otherwise defined have the meanings
specified in the Note Purchase Agreements referred to below.
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 address shown in the register maintained by the Company for such
purpose or at such other place as the Company shall have designated by written
notice to the holder of this Note as provided in the Note Purchase Agreements
referred to below.
This Note is one of a series of Senior Secured Notes (herein called the
"Notes") issued pursuant to separate Note Purchase Agreements, dated as of May
21, 1998 (as from time to time amended, the "Note Purchase Agreements"), between
the Company and the respective purchasers named therein and is entitled to the
benefits thereof. Each holder of this Note will be deemed, by its acceptance
hereof, (i) to have agreed to the confidentiality provisions set forth in
Section 20 of the Note Purchase Agreements and (ii) to have made the
representation set forth in Section 6.2 of the Note Purchase Agreements.
This Note is a registered Note and, as provided in the Note Purchase
Agreements, 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 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 Company 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 Company will not be affected by any notice to
the contrary.
The Notes and all other obligations of the Company (i) have been
unconditionally guarantied certain of by the Company's Subsidiaries pursuant to
the Guaranty Agreement, and (ii) together with certain other indebtedness of the
Company, are secured by the Security Documents.
The Company will make required prepayments of principal on the dates and in
the amounts specified in the Note Purchase Agreements. This Note is also 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 Agreements, but not otherwise.
If an Event of Default, as defined in the Note Purchase Agreements, 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 Agreements.
THIS NOTE AND THE NOTE PURCHASE AGREEMENTS ARE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF CONNECTICUT, 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 XXXX GROUP INC.
By -----------------------------------------------------
Name:
Title:
FORM OF SERIES A NOTE
EXHIBIT 1B
FORM OF SERIES B NOTE
THE XXXX GROUP INC.
6.93% SERIES B SENIOR SECURED NOTE DUE MAY 21, 2008
No. RB-_____ [Date]
$___________ PPN 820280 A@ 4
FOR VALUE RECEIVED, the undersigned, THE XXXX GROUP INC. (herein called the
"Company"), a corporation organized and existing under the laws of the State of
Louisiana, hereby promises to pay to ______________, or registered assigns, the
principal sum of _____________________ DOLLARS (___________________) on May 21,
2008, 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 6.93% per annum from
the date hereof, payable semiannually on the 21st day of May and November in
each year, commencing with the May 21 or November 21 next succeeding 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, 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) 8.93% or (ii) 2% over the rate of
interest publicly announced from time to time by Xxxxxx Guaranty Trust Company
of New York in New York, New York (or its successor) as its "base" or "prime"
rate. Capitalized terms used herein and not otherwise defined have the meanings
specified in the Note Purchase Agreements referred to below.
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 address shown in the register maintained by the Company for such
purpose or at such other place as the Company shall have designated by written
notice to the holder of this Note as provided in the Note Purchase Agreements
referred to below.
This Note is one of a series of Senior Secured Notes (herein called the
"Notes") issued pursuant to separate Note Purchase Agreements, dated as of May
21, 1998 (as from time to time amended, the "Note Purchase Agreements"), between
the Company and the respective purchasers named therein and is entitled to the
benefits thereof. Each holder of this Note will be deemed, by its acceptance
hereof, (i) to have agreed to the confidentiality provisions set forth in
Section 20 of the Note Purchase Agreements and (ii) to have made the
representation set forth in Section 6.2 of the Note Purchase Agreements.
This Note is a registered Note and, as provided in the Note Purchase
Agreements, 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 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 Company 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 Company will not be affected by any notice to
the contrary.
The Notes and all other obligations of the Company (i) have been
unconditionally guarantied by certain of the Company's Subsidiaries pursuant to
the Guaranty Agreement, and (ii) together with certain other indebtedness of the
Company, are secured by the Security Documents.
The Company will make required prepayments of principal on the dates and in
the amounts specified in the Note Purchase Agreements. This Note is also 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 Agreements, but not otherwise.
If an Event of Default, as defined in the Note Purchase Agreements, 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 Agreements.
THIS NOTE AND THE NOTE PURCHASE AGREEMENTS ARE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF CONNECTICUT, 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 XXXX GROUP INC.
By -----------------------------------------------------
Name:
Title:
FORM OF SERIES B NOTE
