Exhibit 4.2
-----------
EXECUTION COPY
XXXXXXXX CORPORATION
$50,000,000 6.39% Senior Notes, Series A, Due April 1, 2007
$50,000,000 6.62% Senior Notes, Series B, Due April 1, 2008
NOTE PURCHASE AGREEMENT
Dated as of April 1, 2002
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TABLE OF CONTENTS
(Not a part of the Agreement)
SECTION HEADING PAGE
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SECTION 1. AUTHORIZATION OF NOTES................................ 1
SECTION 2. SALE AND PURCHASE OF NOTES............................ 1
SECTION 3. CLOSING............................................... 2
SECTION 4. CONDITIONS TO CLOSING................................. 2
Section 4.1. Representations and Warranties........................ 2
Section 4.2. Performance; No Default............................... 2
Section 4.3. Compliance Certificates............................... 3
Section 4.4. Opinions of Counsel................................... 3
Section 4.5. Purchase Permitted By Applicable Law, Etc............. 3
Section 4.6. Sale of Other Notes................................... 3
Section 4.7. Payment of Special Counsel Fees....................... 3
Section 4.8. Private Placement Number.............................. 4
Section 4.9. Changes in Corporate Structure........................ 4
Section 4.10. Other Agreements...................................... 4
Section 4.11. Funding Instructions.................................. 4
Section 4.12. Proceedings and Documents............................. 4
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY......... 4
Section 5.1. Organization; Power and Authority..................... 4
Section 5.2. Authorization, Etc.................................... 4
Section 5.3. Disclosure............................................ 5
Section 5.4. Organization and Ownership of Shares of Subsidiaries.. 5
Section 5.5. Financial Statements.................................. 6
Section 5.6. Compliance with Laws, Other Instruments, Etc.......... 6
Section 5.7. Governmental Authorizations, Etc...................... 6
Section 5.8. Litigation............................................ 6
Section 5.9. Taxes................................................. 7
Section 5.10. Title to Property..................................... 7
Section 5.11. Licenses, Permits, Etc................................ 7
Section 5.12. Compliance with ERISA................................. 8
Section 5.13. Private Offering by the Company....................... 9
Section 5.14. Use of Proceeds;...................................... 9
Section 5.15. Existing Debt; Future Liens........................... 9
Section 5.16. Foreign Assets Control Regulations, Etc............... 9
Section 5.17. Status under Certain Statutes......................... 9
Section 5.18. Notes Rank Pari Passu................................. 10
Section 5.19. Environmental Matters................................. 10
Section 5.20. Foreign Assets Control Regulations, Etc............... 10
SECTION 6. REPRESENTATIONS OF THE PURCHASER...................... 10
Section 6.1. Purchase for Investment............................... 10
Section 6.2. Source of Funds....................................... 11
SECTION 7. INFORMATION AS TO THE COMPANY......................... 12
Section 7.1. Financial and Business Information.................... 12
Section 7.2. Officer's Certificate................................. 15
Section 7.3. Inspection............................................ 15
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SECTION HEADING PAGE
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SECTION 8. PREPAYMENT OF THE NOTES............................... 16
Section 8.1. Required Prepayments.................................. 16
Section 8.2. Optional Prepayments with Make-Whole Amount........... 16
Section 8.3. Change in Control..................................... 16
Section 8.4. Allocation of Partial Prepayments..................... 19
Section 8.5. Maturity; Surrender, Etc.............................. 19
Section 8.6. Purchase of Notes..................................... 19
Section 8.7. Make-Whole Amount..................................... 19
SECTION 9. AFFIRMATIVE COVENANTS................................. 21
Section 9.1. Compliance with Law................................... 21
Section 9.2. Insurance............................................. 21
Section 9.3. Maintenance of Properties............................. 21
Section 9.4. Payment of Taxes and Claims........................... 22
Section 9.5. Corporate Existence, Etc.............................. 22
Section 9.6. Notes to Rank Pari Passu.............................. 22
SECTION 10. NEGATIVE COVENANTS.................................... 22
Section 10.1. Transactions with Affiliates.......................... 22
Section 10.2. Consolidated Net Worth................................ 22
Section 10.3. Interest Coverage Ratio............................... 23
Section 10.4. Limitations on Debt................................... 23
Section 10.5. Liens................................................. 23
Section 10.6. Mergers, Consolidations and Sales of Assets........... 25
Section 10.7. Limitation on Sale-and-Leaseback Transactions......... 27
Section 10.8. Termination of Pension Plans.......................... 27
Section 10.9. Nature of Business.................................... 28
SECTION 11. EVENTS OF DEFAULT..................................... 28
SECTION 12. REMEDIES ON DEFAULT, ETC.............................. 30
Section 12.1. Acceleration.......................................... 30
Section 12.2. Other Remedies........................................ 31
Section 12.3. Rescission............................................ 31
Section 12.4. No Waivers or Election of Remedies, Expenses, Etc..... 31
SECTION 13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES......... 31
Section 13.1. Registration of Notes................................. 31
Section 13.2. Transfer and Exchange of Notes........................ 32
Section 13.3. Replacement of Notes.................................. 32
SECTION 14. PAYMENTS ON NOTES..................................... 32
Section 14.1. Place of Payment...................................... 32
Section 14.2. Home Office Payment................................... 33
SECTION 15. EXPENSES, ETC......................................... 33
Section 15.1. Transaction Expenses.................................. 33
Section 15.2. Survival.............................................. 33
SECTION 16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES;........... 34
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SECTION HEADING PAGE
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SECTION 17. AMENDMENT AND WAIVER.................................. 34
Section 17.1. Requirements.......................................... 34
Section 17.2. Solicitation of Holders of Notes...................... 34
Section 17.3. Binding Effect, Etc................................... 35
Section 17.4. Notes Held by Company, Etc............................ 35
SECTION 18. NOTICES............................................... 35
SECTION 19. REPRODUCTION OF DOCUMENTS............................. 36
SECTION 20. CONFIDENTIAL INFORMATION.............................. 36
SECTION 21. SUBSTITUTION OF PURCHASER............................. 37
SECTION 22. MISCELLANEOUS......................................... 37
Section 22.1. Successors and Assigns................................ 37
Section 22.2. Payments Due on Non-Business Days..................... 37
Section 22.3. Severability.......................................... 37
Section 22.4. Construction.......................................... 38
Section 22.5. Counterparts.......................................... 38
Section 22.6. Governing Law......................................... 38
Section 22.7. Submission to Jurisdiction............................ 38
Signature............................................. 39
(Schedules and Exhibits to this loan agreement are not included in this
filing.)
SCHEDULE A - Information Relating to Purchasers
SCHEDULE B - Defined Terms
SCHEDULE 5.3 - Disclosure Materials
SCHEDULE 5.4 - Subsidiaries of the Company and Ownership of Subsidiary
Stock
SCHEDULE 5.5 - Financial Statements
SCHEDULE 5.14 - Use of Proceeds
SCHEDULE 5.15 - Existing Debt
EXHIBIT 1-A - Form of 6.39% Senior Note, Series A, due April 1, 2007
EXHIBIT 1-B - Form of 6.62% Senior Note, Series B, due April 1, 2008
EXHIBIT 4.4(a) - Form of Opinion of Special Counsel for the Company
EXHIBIT 4.4(b) - Form of Opinion of General Counsel for the Company
EXHIBIT 4.4(c) - Form of Opinion of Special Counsel for the Purchasers
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XXXXXXXX CORPORATION
0000 Xxxxxx Xxxxxx
Xxx Xxxxxx, Xxxx 00000
$50,000,000 6.39% Senior Notes, Series A, Due April 1, 2007
$50,000,000 6.62% Senior Notes, Series B, Due April 1, 2008
Dated as of April 1, 2002
TO THE PURCHASER LISTED IN THE ATTACHED
SCHEDULE A WHO IS A SIGNATORY HERETO:
Ladies and Gentlemen:
XXXXXXXX CORPORATION, an Iowa corporation (the "Company"), agrees with you as
follows:
SECTION 1. AUTHORIZATION OF NOTES.
The Company will authorize the issue and sale of
(a) $50,000,000 aggregate principal amount of its 6.39% Senior Notes,
Series A, due April 1, 2007 (the "Series A Notes"); and
(b) $50,000,000 aggregate principal amount of its 6.62% Senior Notes,
Series B, due April 1, 2008 (the "Series B Notes").
The terms "Series A Notes" and "Series B Notes" as used in this Agreement shall
include each Series A Note and Series B Note, respectively, delivered pursuant
to this Agreement and the Other Agreements (as hereinafter defined) and any
such notes issued in substitution therefor pursuant to Section 13 of this
Agreement or the Other Agreements. The term "Notes" as used in this Agreement
shall include the Series A Notes and Series B Notes. The Series A Notes and
Series B Notes shall be substantially in the forms set forth in Exhibits 1-A
and 1-B, respectively, with such changes therefrom, if any, as may be approved
by you, the Other Purchasers (as hereinafter defined) 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.
SECTION 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 of the Series specified
opposite your name in Schedule A at the purchase price of 100% of the principal
amount and of the Series 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 of the Series specified opposite its name in Schedule A. Your
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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 nonperformance by any Other Purchaser thereunder.
SECTION 3. CLOSING.
The sale and purchase of the Notes to be purchased by you and the Other
Purchasers shall occur at the offices of Xxxxxxx and Xxxxxx, 000 Xxxx Xxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxx, at 10:00 A.M. Chicago time, at a closing (the
"Closing") on April 9, 2002. At the Closing the Company will deliver to you
the Notes to be purchased by you in the form of a single Note (or such greater
number of Notes in denominations of at least $500,000 as you may request) dated
the date of the Closing and registered in your name (or in the name of your
nominee), against delivery by you to the Company or its order of immediately
available funds in the amount of the purchase price therefor by wire transfer
of immediately available funds for the account of the Company as indicated in
the written funding instructions delivered pursuant to Section 4.11. 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.
SECTION 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:
Section 4.1. Representations and Warranties.
The representations and warranties of the Company in this Agreement shall be
correct when made and at the time of the Closing.
Section 4.2. Performance; No Default.
The Company shall have performed and complied with all agreements and
conditions contained in this Agreement required to be performed or complied
with by it 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
Sections 9 or 10 hereof had such Sections applied since such date.
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Section 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 4.9 have been fulfilled.
(b) Secretary's Certificate. The Company shall have delivered to you a
certificate of its Secretary, 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 Notes, this Agreement and the
Other Agreements.
Section 4.4. Opinions of Counsel.
You shall have received opinions in form and substance satisfactory to you,
dated the date of the Closing (a) from Sidley Xxxxxx Xxxxx & Xxxx, special
counsel for the Company, covering the matters set forth in Exhibit 4.4(a) and
(b) from Xxxx X. Xxxxxx, Esq., Vice President, General Counsel and Secretary of
the Company, covering the matters set forth in Exhibit 4.4(b) and, in each
case, covering such other matters incident to the transactions contemplated
hereby as you or your counsel may reasonably request (and the Company hereby
instructs its counsel to deliver such opinion to you) and (c) from Xxxxxxx and
Xxxxxx, your special counsel in connection with such transactions,
substantially in the form set forth in Exhibit 4.4(c) and covering such other
matters incident to such transactions as you may reasonably request.
Section 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, which law or regulation was not in effect on the date hereof. 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.
Section 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 to be purchased
by them at the Closing as specified in Schedule A.
Section 4.7. 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
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counsel referred to in Section 4.4 to the extent reflected in a statement of
such counsel rendered to the Company at least one Business Day prior to the
Closing.
Section 4.8. Private Placement Number.
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 the Notes.
Section 4.9. Changes in Corporate Structure.
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.
Section 4.10. Other Agreements.
The Company shall have delivered to you a copy of the final Credit Agreement
dated as of April 5, 2002 (the "Credit Agreement") among the Company, the
Lenders listed therein, Fleet National Bank, as Administrative Agent and
Issuing Lender, Bank One, NA and Xxxxx Fargo Bank, National Association, each
as a Co-Syndication Agent, and SunTrust Bank, Central Florida, National
Association, as Documentation Agent.
Section 4.11. Funding Instructions.
At least two Business Days prior to the date of the Closing, you shall have
received written instructions executed by a Responsible Officer of the Company
directing the manner of the payment of funds and setting forth (a) the name and
address of the transferee bank, (b) such transferee bank's ABA number, (c) the
account name and number into which the purchase price for the Notes is to be
deposited, and (d) the name and telephone number of the account representative
responsible for verifying receipt of such funds.
Section 4.12. Proceedings and Documents.
All corporate and other proceedings in connection with the transactions
contemplated by this Agreement 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.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to you that:
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Section 5.1. Organization; Power and Authority.
The Company 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 could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. The Company 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 this Agreement and the Other Agreements and the Notes and to perform
the provisions hereof and thereof.
Section 5.2. Authorization, Etc.
This Agreement, the Other Agreements and the Notes have been duly authorized by
all necessary corporate action on the part of the Company, and this Agreement
constitutes, and upon execution and delivery thereof each Note will constitute,
a legal, valid and binding obligation of the Company enforceable against the
Company 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).
Section 5.3. Disclosure.
The Company, through its agent, SunTrust Capital Markets, Inc., has delivered
to you and each Other Purchaser a copy of a Private Placement Memorandum, dated
February, 2002 (as supplemented pursuant to the Company's Current Report on
Form 8-K dated March 22, 2002, 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, this
Agreement, the Memorandum, the documents, certificates or other writings
delivered to you by or on behalf of the Company in connection with the
transactions contemplated hereby 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 therein not misleading in light of the circumstances under which
they were made, it being understood that no representation or warranty is made
with respect to the projections included therein other than that they are based
on information the Company believed as of the date thereof to be accurate and
were calculated in a manner the Company believed to be reasonable. Except as
disclosed in the Memorandum or as expressly described in Schedule 5.3, or in
one of the documents, certificates or other writings identified therein, or in
the financial statements listed in Schedule 5.5, since June 30, 2001, 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 could not reasonably be expected to have a Material Adverse
Effect. To the best knowledge and belief of senior management of the Company,
there is no fact known to the Company that could reasonably be expected to have
a Material Adverse Effect that has not been set forth herein or in the
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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.
Section 5.4. Organization and Ownership of Shares of Subsidiaries; Affiliates.
(a) Schedule 5.4 contains (except as noted therein) complete and correct
lists (i) of 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 or similar equity interests
outstanding owned by the Company and each other Subsidiary, (ii) of the
Company's Affiliates, other than Subsidiaries, and (iii) of the Company's
directors and senior officers.
(b) All of the outstanding shares of capital stock or similar equity
interests 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 could 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
on 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 or similar equity
interests of such Subsidiary.
Section 5.5. Financial Statements.
The Company has delivered to you and each Other Purchaser copies of the
financial statements of the Company and its Subsidiaries listed on Schedule
5.5. All of said financial statements (including in each case the related
schedules and notes) fairly present in all material respects the consolidated
financial position of the Company and its Subsidiaries as of the respective
dates specified in such financial statements and the consolidated results of
their operations and cash flows for the respective periods so specified and
have been prepared in accordance with GAAP consistently applied throughout the
periods involved except as set forth in the notes thereto (subject, in the case
of any interim financial statements, to normal year-end adjustments).
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Section 5.6. Compliance with Laws, Other Instruments, Etc.
The execution, delivery and performance by the Company of this Agreement and
the Notes 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 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, (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 or (c) violate any provision of any statute or other rule or
regulation of any Governmental Authority applicable to the Company or any
Subsidiary.
Section 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 Company of this Agreement or the
Notes.
Section 5.8. Litigation; Observance of Agreements, Statutes and Orders.
(a) 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, could 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, could reasonably be expected to have a Material Adverse Effect.
Section 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 could reasonably be
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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 June 30, 1997.
Section 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.
Section 5.11. Licenses, Permits, Etc.
(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 of the Company
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.
Section 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 could 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 could 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.
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(b) The present value of the aggregate benefit liabilities under each of
the Plans subject to Title IV of ERISA (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 its 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 post-retirement 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 or has otherwise
been disclosed in footnote 9 of the Company's most recent audited financial
statements.
(e) The execution and delivery of this Agreement 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) Neither the Company nor any Subsidiary maintains any Non-U.S. Pension
Plan.
Section 5.13. Private Offering by the Company.
Neither the Company nor anyone acting 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 two other
Institutional Investors, each of which has been offered the Notes at a private
sale for investment. Neither the Company nor anyone acting 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.
Section 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
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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 .5% of the value of the
consolidated assets of the Company and its Subsidiaries and the Company does
not have any present intention that margin stock will constitute more than 5.0%
of the value of such 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.
Section 5.15. Existing Debt; Future Liens.
(a) Except as described therein, Schedule 5.15 sets forth a complete and
correct list of all outstanding Debt of the Company and its Subsidiaries as of
March 31, 2002. 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 Debt of the Company or such Subsidiary the outstanding
principal amount of which exceeds $1,000,000 and no event or condition exists
with respect to any such Debt of the Company or any Subsidiary that would
permit (or that with notice or the lapse of time, or both, would permit) one or
more Persons to cause such Debt 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 10.5.
Section 5.16. Foreign Assets Control Regulations, Etc.
Neither the sale of the Notes by the Company hereunder nor its use of the
proceeds thereof 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.
Section 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 ICC Termination Act of 1995, as amended, or the
Federal Power Act, as amended.
Section 5.18. Notes Rank Pari Passu.
The obligations of the Company under this Agreement and the Notes rank at least
pari passu in right of payment with all other senior unsecured Debt (actual or
contingent) of the Company, including, without limitation, all senior unsecured
Debt of the Company described in Schedule 5.15 hereto.
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Section 5.19. 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 could 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
could 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 has disposed of any Hazardous Materials in a manner
contrary to any Environmental Laws in each case in any manner that could
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 could not reasonably be
expected to result in a Material Adverse Effect.
Section 5.20. Foreign Assets Control Regulations, Etc.
Neither the sale of the Notes by the Company hereunder nor its use of the
proceeds thereof 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. Without limiting the
foregoing, neither the Company nor any of its Subsidiaries (a) is a person
whose property or interests in property are blocked pursuant to Section 1 of
Executive Order 13224 of September 23, 2001 Blocking Property and Prohibiting
Transaction With Persons Who Commit, Threaten to Commit, or Support Terrorism
(66 Fed. Reg. 49079 (2001)) or (b) engages in any dealings or transactions, or
be otherwise associated, with any such person.
SECTION 6. REPRESENTATIONS OF THE PURCHASER.
Section 6.1. Purchase for Investment.
You represent that you 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
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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.
Section 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" within the
meaning of Department of Labor Prohibited Transaction Exemption ("PTE") 95-60
(issued July 12, 1995) and there is no employee benefit plan, treating as a
single plan, all plans maintained by the same employer or employee
organization, with respect to which the amount of the general account reserves
and liabilities for all contracts held by or on behalf of such plan, exceed ten
percent (10%) of the total reserves and liabilities of such general account
(exclusive of separate account liabilities) plus surplus, as set forth in the
NAIC Annual Statement filed with your state of domicile; or
(b) 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 (b), 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
(c) the Source constitutes assets of an "investment fund" (within the
meaning of Part V of 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 l(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 (c); or
(d) the Source is a governmental plan; or
(e) 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
(e); or
(f) the Source does not include assets of any employee benefit plan,
other than a plan exempt from the coverage of ERISA.
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If you or any subsequent transferee of the Notes indicates that you or such
transferee are relying on any representation contained in paragraph (b), (c) or
(e) above, the Company shall deliver on the date of Closing or on the date of
transfer, as applicable, a certificate, which shall state whether that (i) it
is a party in interest or a "disqualified person" (as defined in Section
4975(e)(2) of the Code), with respect to any plan identified pursuant to
paragraphs (b) or (e) above, or (ii) with respect to any plan, identified
pursuant to paragraph (c) above, it or any "affiliate" (as defined in Section
V(c) of the QPAM Exemption) has at such time, and during the immediately
preceding one year, exercised the authority to appoint or terminate said QPAM
as manager of any plan identified in writing pursuant to paragraph (c) above or
to negotiate the terms of said QPAM's management agreement on behalf of any
such identified plan.
As used in this Section 6.2, the terms "employee benefit plan", "governmental
plan", "party in interest" and "separate account" shall have the respective
meanings assigned to such terms in Section 3 of ERISA.
SECTION 7. INFORMATION AS TO THE COMPANY.
Section 7.1. Financial and Business Information.
The Company shall deliver to each holder of Notes that is an Institutional
Investor:
(a) Quarterly Statements - within 60 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 earnings 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 of the Company, 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 financial position of the
companies being reported on and their 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 105 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
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(ii) consolidated statements of earnings 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:
(1) 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 financial position of the companies being reported upon
and their 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
(2) 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 (together with the
Company's annual report to shareholders, if any, prepared pursuant to Rule
14a-3 under the Exchange Act) prepared in accordance with the requirements
therefor and filed with the Securities and Exchange Commission, together with
the accountant's certificate described in clause (2) 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, 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 (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 Business 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;
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(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 hereof; 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 could 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, could 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 could reasonably be
expected to have a Material Adverse Effect; and
(g) 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 Company to perform its obligations hereunder and
under the Notes as from time to time may be reasonably requested by any such
holder of Notes, including without limitation, such information as is required
by SEC Rule 144A under the Securities Act to be delivered to the prospective
transferee of the Notes.
Section 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) hereof 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 Section 10.2 through Section 10.7 hereof,
inclusive, 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
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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 hereof 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 shall not have 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.
Section 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
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, but not more frequently than twice in any twelve month period; and
(b) Default - if a Default or Event of Default then exists, at the
expense of the Company and upon not less than one Business Day's prior notice,
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 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 times and as often as may be requested.
SECTION 8. PREPAYMENT OF THE NOTES.
Section 8.1. Required Prepayment.
(a) Series A Notes. The Series A Notes shall not be subject to scheduled
principal prepayments. On April 1, 2007, the entire unpaid principal amount of
each Series A Note, together with accrued interest thereon, shall be due and
payable.
(b) Series B Notes. The Series B Notes shall not be subject to scheduled
principal prepayments. On April 1, 2008, the entire unpaid principal amount of
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each Series B Note, together with accrued interest thereon, shall be due and
payable.
Section 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, any Series of Notes, on a pro rata
basis in respect of all Notes of such Series outstanding at such time, in an
amount not less than 10% of the aggregate principal amount of all Notes of such
Series then outstanding in the case of a partial prepayment, at 100% of the
principal amount so prepaid, together with interest accrued thereon to the date
of such prepayment, 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 date, the aggregate principal
amount and the Series 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 of the Series to be prepaid a certificate of a
Senior Financial Officer specifying the calculation of such Make-Whole Amount
as of the specified prepayment date.
Section 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 subparagraph (b) of this
Section 8.3. If a Change in Control has occurred, such notice shall contain
and constitute an offer to prepay the Notes, on a pro rata basis in respect of
all Notes of all Series outstanding at such time, as described in subparagraph
(c) of this Section 8.3 and shall be accompanied by the certificate described
in subparagraph (g) of this Section 8.3.
(b) Condition to Company Action. The Company will not take any action
that consummates or finalizes a Change in Control unless (i) at least 30 days
prior to such action it shall have given to each holder of Notes written notice
containing and constituting an offer to prepay the Notes, on a pro rata basis
in respect of all Notes of all Series outstanding at such time, as described in
subparagraph (c) of this Section 8.3, accompanied by the certificate described
in subparagraph (g) of this Section 8.3, 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
subparagraphs (a) and (b) of this Section 8.3 shall be an offer to prepay, in
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accordance with and subject to this Section 8.3, all, but not less than all, of
the Notes of each Series 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"). If such Proposed Prepayment Date is in
connection with an offer contemplated by subparagraph (a) of this Section 8.3,
such date shall be not less than 30 days and not more than 120 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 first Business Day after
the 45th day after the date of such offer).
(d) Acceptance. A holder of Notes may accept the offer to prepay made
pursuant to this Section 8.3 by causing a notice of such acceptance to be
delivered to the Company not later than 15 days after receipt by such holder of
the most recent offer of prepayment. A failure by a holder of Notes to respond
to an offer to prepay made pursuant to this Section shall be deemed to
constitute a rejection 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, together
with interest on such Notes accrued to the date of prepayment, plus the
Make-Whole Amount determined for the prepayment date with respect to such
principal amount. The prepayment shall be made on the Proposed Prepayment Date
except as provided in subparagraph (f) of this Section 8.3.
(f) Deferral Pending Change in Control. The obligation of the Company to
prepay Notes pursuant to the offers required by subparagraph (c) and accepted
in accordance with subparagraph (d) of this Section 8.3 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 has
not occurred 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 of the Company and dated the date of such offer, specifying:
(i) the Proposed Prepayment Date; (ii) that such offer is made pursuant to this
Section 8.3; (iii) the principal amount and Series of each Note offered to be
prepaid; (iv) the interest that would be due on each Note offered to be
prepaid, accrued to the Proposed Prepayment Date; (v) an estimate of the
Make-Whole Amount payable in connection with such prepayment; (vi) that the
conditions of this Section 8.3 have been fulfilled; and (vii) in reasonable
detail, the nature and date or proposed date of the Change in Control.
(h) Certain Definitions. "Change in Control" shall be deemed to have
occurred if 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), other than members of the Xxxxxxxx Family,
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(1) become the "beneficial owners" (as such term is used in Rule
13d-3 under the Exchange Act as in effect on the date of the Closing),
directly or indirectly, of more than 50% of the total voting power of all
classes then outstanding of the Company's Voting Stock, or
(2) acquire after the date of the Closing (x) the power to elect,
appoint or cause the election or appointment of at least a majority of the
members of the board of directors of the Company, through beneficial
ownership of the capital stock of the Company or otherwise, or (y) all or
substantially all of the properties and assets of the Company.
"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.
(i) All calculations contemplated in this Section 8.3 involving the
capital stock of any Person shall be made with the assumption that all
convertible Securities of such Person then outstanding and all convertible
Securities issuable upon the exercise of any warrants, options and other rights
outstanding at such time were converted at such time and that all options,
warrants and similar rights to acquire shares of capital stock of such Person
were exercised at such time.
Section 8.4. Allocation of Partial Prepayments.
In the case of each partial prepayment of the Notes pursuant to Section 8.2,
the principal amount of the Series of Notes to be prepaid shall be allocated
among all of the Notes of such Series at the time outstanding in proportion, as
nearly as practicable, to the respective unpaid principal amounts thereof not
theretofore called for prepayment. All partial prepayments made pursuant to
Section 8.3 shall be applied only to the Notes of the holders who have elected
to participate in such prepayment.
Section 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
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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.
Section 8.6. Purchase of Notes.
The Company will not and will not permit any Affiliate to purchase, redeem,
prepay or otherwise acquire, directly or indirectly, any of the outstanding
Notes except (a) upon the payment or prepayment of the Notes in accordance with
the terms of this Agreement and the Notes or (b) pursuant to an offer to
purchase made by the Company or an Affiliate pro rata to the holders of all
Notes at the time outstanding upon the same terms and conditions. Any such
offer shall provide each holder with sufficient information to enable it to
make an informed decision with respect to such offer, and shall remain open for
at least 30 days. If the holders of more than 50% of the principal amount of
the Notes then outstanding accept such offer, the Company shall promptly notify
the remaining holders of such fact and the expiration date for the acceptance
by holders of Notes of such offer shall be extended by the number of days
necessary to give each such remaining holder at least 15 days from its receipt
of such notice to accept such offer. 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.
Section 8.7. Make-Whole Amount.
The term "Make-Whole Amount" means, with respect to any Note of any Series, 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 or Section 8.3 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 the Notes is payable) equal to the
Reinvestment Yield with respect to such Called Principal.
"Reinvestment Yield" means, with respect to the Called Principal of any Note,
the sum of (a) 0.50% per annum plus (b) the yield to maturity implied by (i)
the yields reported, as of 10:00 A.M. (New York City time) on the second
Business Day preceding the Settlement Date with respect to such Called
Principal, on the display designated as Pages PX1 through PX7 of the Bloomberg
Financial Markets Services Screen (or, if not available, any other nationally
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recognized trading screen reporting on-line intraday trading in the U.S.
Treasury securities) for actively traded U.S. Treasury securities having a
maturity equal to the Remaining Average Life of such Called Principal as of
such Settlement Date, or (ii) if such yields are not reported as of such time
or the yields reported as 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 (1) converting U.S.
Treasury xxxx quotations to bond-equivalent yields in accordance with accepted
financial practice and (2) interpolating linearly between (A) the actively
traded U.S. Treasury security with the maturity closest to and greater than the
Remaining Average Life and (B) the actively traded U.S. Treasury security with
the maturity closest to and less than the Remaining Average Life.
"Remaining Average Life" means, with respect to any Called Principal, the
number of years (calculated to the nearest one-twelfth year) obtained by
dividing (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 the Notes, then the amount of the next
succeeding scheduled interest payment will be reduced by the amount of interest
accrued to such Settlement Date and required to be paid on such Settlement Date
pursuant to Section 8.2, 8.3 or 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 or
Section 8.3 or has become or is declared to be immediately due and payable
pursuant to Section 12.1, as the context requires.
SECTION 9. AFFIRMATIVE COVENANTS.
The Company covenants that so long as any of the Notes are outstanding:
Section 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, ERISA and applicable laws in respect of
Non-U.S. Pension Plans and all 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
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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 could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
Section 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.
Section 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 could not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Section 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 and
assessments 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 might
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 a 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 and assessments in
the aggregate could not reasonably be expected to have a Material Adverse
Effect.
Section 9.5. Corporate Existence, Etc.
The Company will at all times preserve and keep in full force and effect its
corporate existence. Subject to Section 10.6, the Company will at all times
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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
could not, individually or in the aggregate, have a Material Adverse Effect.
Section 9.6. Notes to Rank Pari Passu.
The Notes and all other obligations under this Agreement of the Company are and
at all times shall remain direct and unsecured obligations of the Company
ranking pari passu as against the assets of the Company with all other Notes
from time to time issued and outstanding hereunder without any preference among
themselves and pari passu with all other present and future unsecured Debt
(actual or contingent) of the Company which is not expressed to be subordinate
or junior in rank to any other unsecured Debt of the Company.
SECTION 10. NEGATIVE COVENANTS.
The Company covenants that so long as any of the Notes are outstanding:
Section 10.1. Transactions with Affiliates.
The Company will not and will not permit any Subsidiary to enter into directly
or indirectly any Material transaction or Material 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.
Section 10.2. Consolidated Net Worth.
The Company will not at any time permit Consolidated Net Worth to be an amount
less than the sum of (a) $336,000,000 plus (b) 25% of Consolidated Net Income
computed on a cumulative basis for each of the elapsed fiscal years ending
after June 30, 2001; provided that notwithstanding that Consolidated Net Income
for any such elapsed fiscal year may be a deficit figure, no reduction in such
amount as a result thereof shall be made on the sum to be maintained pursuant
hereto.
Section 10.3. Interest Coverage Ratio.
The Company will keep and maintain the ratio of (a) Consolidated EBIT to (b)
Consolidated Interest Expense for each period of four consecutive fiscal
quarters at not less than 2.5 to 1.0.
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Section 10.4. Limitations on Debt.
(a) The Company will not at any time permit the ratio of (i) Consolidated
Total Debt to (ii) Consolidated EBITDA for the period of the four consecutive
fiscal quarters then most recently ended to exceed 3.5 to 1.0. The maximum
amount of Consolidated Total Debt permitted pursuant to the terms of this
Section 10.4(a) is hereafter referred to as "Maximum Permitted Total Debt".
(b) The Company will not at any time permit Priority Debt to exceed an
amount equal to 25% of Maximum Permitted Total Debt.
Section 10.5. Liens.
The Company will not, and will not permit any of its Subsidiaries to, directly
or indirectly create, incur, assume or permit 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:
(a) Liens for taxes, assessments or other governmental charges which are
not yet due and payable or the payment of which is not at the time required by
Section 9.4;
(b) statutory Liens of landlords and Liens of carriers, warehousemen,
mechanics, materialmen and other similar Liens, in each case, incurred in the
ordinary course of business for sums not yet due and payable or the payment of
which is not at the time required by Section 9.1 or Section 9.4;
(c) Liens (other than any Lien imposed by ERISA) incurred or deposits
made in the ordinary course of business (i) in connection with workers'
compensation, unemployment insurance and other types of social security or
retirement benefits, or (ii) to secure (or to obtain letters of credit that
secure) the performance of tenders, statutory obligations, surety bonds, appeal
bonds (not in excess of $5,000,000), bids, leases (other than Capital Leases),
performance bonds, 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;
(d) any attachment or judgment Lien, unless (i) the judgment it secures
shall not, within 60 days after the entry thereof, have been discharged or
execution thereof stayed pending appeal, or shall not have been discharged
within 60 days after the expiration of any such stay or (ii) the uninsured
portion of the judgment such Lien secures, including any portion for which the
insurer has not acknowledged responsibility, exceeds $5,000,000;
(e) leases or subleases granted to others, easements, rights-of-way,
restrictions and other similar charges or encumbrances, in each case incidental
to, and not interfering with, the ordinary conduct of the business of the
Company or any of its Subsidiaries, provided that such Liens do not, in the
aggregate, materially detract from the value of such property;
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(f) Liens on property or assets of the Company or any of its Subsidiaries
securing Debt owing to the Company or to any of its Wholly-Owned Subsidiaries;
(g) Liens on all existing or hereafter acquired or arising Receivables of
the Company or any Subsidiary, the Related Security with respect thereto, the
collections and proceeds of such Receivables and Related Security, all
lockboxes, lockbox accounts, collection accounts or other deposit accounts into
which such collections are deposited and all other rights and payments relating
to such Receivables, which are transferred to the Company, a Subsidiary or a
Receivables Purchaser in connection with Receivables Facility Attributed
Indebtedness; provided such Receivables Facility Attributed Indebtedness is
permitted under Section 10.4(b);
(h) any Lien created to secure all or any part of the purchase price, or
to secure Debt incurred or assumed to pay all or any part of the purchase price
or cost of construction, of property (or any improvement thereon) acquired or
constructed by the Company or a Subsidiary after the date of the Closing,
provided that:
(i) any such Lien shall extend solely to the item or items of such
property (or improvement thereon) so acquired or constructed and, if
required by the terms of the instrument originally creating such Lien,
other property (or improvement thereon) which is an improvement to or is
acquired for specific use in connection with such acquired or constructed
property (or improvement thereon) or which is real property being improved
by such acquired or constructed property (or improvement thereon),
(ii) 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 or constructed and (2) the fair market value (as determined in
good faith by the board of directors of the Company) of such property (or
improvement thereon) at the time of such acquisition or construction, and
(iii) any such Lien shall be created contemporaneously with, or
within 180 days after, the acquisition or construction of such property;
(i) any Lien 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 (i) 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, and (ii) 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;
(j) any Lien renewing, extending or refunding any Lien permitted by
paragraphs (h) or (i) of this Section 10.5, provided that (i) the principal
amount of Debt secured by such Lien immediately prior to such extension,
renewal or refunding is not increased or the maturity thereof reduced, (ii)
such Lien is not extended to any other property, and (iii) immediately after
such extension, renewal or refunding no Default or Event of Default would
exist;
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(k) other Liens not otherwise permitted by subparagraphs (a) through (j)
securing Debt, provided that all Debt secured by such Liens shall have been
incurred within the applicable limitations of Section 10.4, including, without
limitation, that after giving effect thereto Priority Debt will not exceed 25%
of Maximum Permitted Total Debt.
Section 10.6. Mergers, Consolidations and Sales of Assets.
(a) The Company will not, and will not permit any of its Subsidiaries to,
consolidate with or be a party to a merger with any other Person, or sell,
lease or otherwise dispose of all or substantially all of its assets; provided
that:
(i) any Subsidiary may merge or consolidate with or into the Company
or any Subsidiary so long as in (1) any merger or consolidation involving
the Company, the Company shall be the surviving or continuing corporation,
(2) any merger or consolidation involving a Wholly-owned Subsidiary (and
not the Company), the Wholly-owned Subsidiary shall be the surviving or
continuing corporation;
(ii) the Company may consolidate or merge with or into any other
corporation if (1) the corporation which results from such consolidation
or merger (the "surviving corporation") is organized under the laws of any
state of the United States or the District of Columbia, (2) the due and
punctual payment of the principal of and premium, if any, and interest on
all of the Notes, according to their tenor, and the due and punctual
performance and observation of all of the covenants in the Notes and this
Agreement to be performed or observed by the Company are expressly assumed
in writing by the surviving corporation and the surviving corporation
shall furnish to the holders of the Notes an opinion of counsel
satisfactory to the Required Holders to the effect that the instrument of
assumption has been duly authorized, executed and delivered and
constitutes the legal, valid and binding contract and agreement of the
surviving corporation enforceable in accordance with its terms, except as
enforcement of such terms may be limited by bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles, (3) at
the time of such consolidation or merger and immediately after giving
effect thereto, no Default or Event of Default would exist, and (4) the
Company or such surviving corporation shall have complied with all
obligations under this Agreement with respect to any Change in Control
resulting from such transaction;
(iii) the Company may sell or otherwise dispose of all or
substantially all of its assets to any Person for consideration which
represents the fair market value of such assets (as determined in good
faith by the Board of Directors of the Company) at the time of such sale
or other disposition if (1) the Person which is acquiring all or
substantially all of the assets of the Company is a corporation organized
under the laws of any state of the United States or the District of
Columbia, (2) the due and punctual payment of the principal of and
premium, if any, and interest on all the Notes, according to their tenor,
and the due and punctual performance and observance of all of the
covenants in the Notes and in this Agreement and the Other Agreements to
be performed or observed by the Company are expressly assumed in writing
- 30 -
by the acquiring corporation and the acquiring corporation shall furnish
to the holders of the Notes an opinion of counsel satisfactory to the
Required Holders to the effect that the instrument of assumption has been
duly authorized, executed and delivered and constitutes the legal, valid
and binding contract and agreement of such acquiring corporation
enforceable in accordance with its terms, except as enforcement of such
terms may be limited by bankruptcy, insolvency, reorganization, moratorium
and similar laws affecting the enforcement of creditors' rights generally
and by general equitable principles, (3) at the time of such sale or
disposition and immediately after giving effect thereto, no Default or
Event of Default would exist, and (4) the Company or such acquiring
corporation shall have complied with all obligations under this Agreement
with respect to any Change in Control resulting from such transaction; and
(iv) the Company or any Subsidiary may sell or otherwise dispose of
assets as part of any Permitted Receivables Transaction so long as the
aggregate amount of Priority Debt (including Receivables Facility
Attributed Indebtedness) does not exceed 25% of Maximum Permitted Total
Debt.
(b) The Company will not, and will not permit any of its Subsidiaries to,
sell, lease, transfer, abandon or otherwise dispose of assets (except assets
sold in the ordinary course of business for fair market value and except as
provided in Section 10.6(a)(iii)); provided that the foregoing restrictions do
not apply to:
(i) (1) the sale, lease, transfer or other disposition of assets of
a Subsidiary to the Company or a Wholly-owned Subsidiary or (2) the sale,
lease, transfer or other disposition of assets (valued at net book value)
of the Company to a Wholly-owned Subsidiary not to exceed in any 12-month
period 10% of Consolidated Total Assets as of the last day of the fiscal
quarter immediately preceding such sale, lease, transfer or other
disposition; or
(ii) the sale or other disposition of assets as part of any
Permitted Receivables Transaction so long as the aggregate amount of
Priority Debt (including Receivables Facility Attributed Indebtedness)
does not exceed 25% of Maximum Permitted Total Debt; or
(iii) the sale of inventory in the ordinary course of business; or
(iv) the sale of assets for cash or other property to a Person or
Persons other than an Affiliate if all of the following conditions are
met:
(1) such assets (valued at net book value) do not, together
with all other assets of the Company and its Subsidiaries previously
disposed of during the immediately preceding 36 calendar month period
(other than in the ordinary course of business), exceed 30% of the
average of Consolidated Total Assets as of the last day of each of
the 12 consecutive fiscal quarters then most recently ended;
(2) in the opinion of the Board of Directors of the Company,
the sale is for fair value and is in the best interests of the
Company and its Subsidiaries; and
- 31 -
(3) immediately after the consummation of the transaction and
after giving effect thereto, no Default or Event of Default would
exist;
provided, however, that for purposes of the foregoing calculation, there shall
not be included any assets the proceeds of which were or are applied either (A)
within 12 months before or 12 months after the effective date of such asset
disposition to the acquisition of assets useful and intended to be used in the
operation of the business of the Company and its Subsidiaries as described in
Section 10.9 and having a fair market value (as determined in good faith by the
Board of Directors of the Company) at least equal to that of the assets so
disposed of or (B) within 180 days after the effective date of such asset
disposition to the prepayment at any applicable prepayment premium of all
Senior Debt of the Company on a pro rata basis (other than Senior Debt owing to
the Company, any of its Subsidiaries or any Affiliate), based upon principal
amount then outstanding. It is understood and agreed by the Company that, to
the extent any such proceeds are applied to the prepayment of the Notes, such
prepayment will be made on a pro rata basis in respect of all Notes of all
Series outstanding at such time in the manner and with the premium, if any,
then required pursuant to the optional prepayment provisions provided in
Section 8.2.
Section 10.7. Limitation on Sale-and-Leaseback Transactions.
The Company will not, and will not permit any Subsidiary to, enter into any
Sale-and-Leaseback Transaction unless immediately after giving effect thereto,
the aggregate amount of Priority Debt (including the Attributable Debt to be
incurred in connection with such Sale-and-Leaseback Transaction) does not
exceed 25% of Maximum Permitted Total Debt.
Section 10.8. Termination of Pension Plans.
The Company will not and will not permit any Subsidiary to withdraw from any
Multiemployer Plan or permit any employee benefit plan maintained by it to be
terminated if such withdrawal or termination could result in withdrawal
liability (as described in Part 1 of Subtitle E of Title IV of ERISA) or the
imposition of a Lien on any property of the Company or any Subsidiary pursuant
to Section 4068 of ERISA, which withdrawal liability or Lien could reasonably
be expected to have a Material Adverse Effect.
Section 10.9. Nature of Business.
Neither the Company nor any Subsidiary will engage in any business if, as a
result, the general nature of the business, taken on a consolidated basis,
which would then be engaged in by the Company and its Subsidiaries would be
substantially changed from the general nature of the business engaged in by the
Company and its Subsidiaries on the date of this Agreement.
SECTION 11. EVENTS OF DEFAULT.
An "Event of Default" shall exist if any of the following conditions or events
shall occur and be continuing:
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(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) the Company defaults in the performance of or compliance with any
term contained in Sections 10.1 through 10.7 and such default is not remedied
within 10 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 (any such written notice to be identified as
a "notice of default" and to refer specifically to this paragraph (c) of
Section 11); or
(d) the Company defaults in the performance of or compliance with any
term contained herein or in any Other Agreement (other than those referred to
in paragraphs (a), (b) and (c) of this Section 11) 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 (any such written
notice to be identified as a "notice of default" and to refer specifically to
this paragraph (d) of Section 11); or
(e) any representation or warranty made in writing by or on behalf of the
Company or by any officer of the Company in this Agreement or in any Other
Agreement or in any writing furnished in connection with the transactions
contemplated hereby or thereby 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 Debt that is outstanding in an aggregate
principal amount of at least $10,000,000 (or the equivalent in other applicable
currencies) beyond any period of grace provided with respect thereto, or (ii)
the Company or any Subsidiary is in default in the performance of or compliance
with any term of any evidence of any Debt in an aggregate outstanding principal
amount of at least $10,000,000 (or the equivalent in other applicable
currencies) 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 Debt has become, or has been declared, due and payable before
its stated maturity or before its regularly scheduled dates of payment or (iii)
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 Debt to convert
such Debt into equity interests), the Company or any Subsidiary has become
obligated to purchase or repay Debt before its regular maturity or before its
regularly scheduled dates of payment in an aggregate outstanding principal
amount of at least $10,000,000, (iv) the occurrence of any "Amortization Event"
under the Receivables Program, or (v) the Company shall be removed as the
"Servicer" under the Receivables Program; or
(g) the Company or any Material 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,
- 33 -
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 of its Material
Subsidiaries, a custodian, receiver, trustee or other officer with similar
powers with respect to the Company or any Material Subsidiary or with respect
to any substantial part of the property of the Company or any Material
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 of
its Material Subsidiaries, or any such petition shall be filed against the
Company or any of its Material Subsidiaries 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 $5,000,000 (or the equivalent in other applicable currencies) are
rendered against one or more of the Company and its Subsidiaries and which
judgments are not, within 60 days after entry thereof, bonded, discharged or
stayed pending appeal, or are not discharged within 60 days after the
expiration of such stay; or
(j) 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 $5,000,000, (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, could reasonably be expected to
have a Material Adverse Effect.
As used in Section 11(j), the terms "employee benefit plan" and "employee
welfare benefit plan" shall have the respective meanings assigned to such terms
in Section 3 of ERISA.
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SECTION 12. REMEDIES ON DEFAULT, ETC.
Section 12.1. Acceleration.
(a) If an Event of Default with respect to the Company described in
paragraph (g) or (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 51% 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 Note's becoming due and payable under this Section 12.1, whether
automatically or by declaration, such Note will forthwith mature and the entire
unpaid principal amount of such Note, plus (i) all accrued and unpaid interest
thereon and (ii) 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.
Section 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 herein or in any Note, or for
an injunction against a violation of any of the terms hereof or thereof, or in
aid of the exercise of any power granted hereby or thereby or by law or
otherwise.
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Section 12.3. Rescission.
At any time after any Notes have been declared due and payable pursuant to
clause (b) or (c) of Section 12.1, the holders of more than 50% 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, on any Notes that are due and payable and are unpaid 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.
Section 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 this Agreement or by any Note upon any holder thereof
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.
SECTION 13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES.
Section 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.
Section 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
- 36 -
registration of transfer, duly endorsed or accompanied by a written instrument
of transfer duly executed by the registered holder of such Note or its 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 an
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 1. 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 $500,000; 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 $500,000. 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.
Section 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 another holder of a Note with a minimum
net worth of at least $10,000,000, 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.
SECTION 14. PAYMENTS ON NOTES.
Section 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 Des Moines,
Iowa at the principal office of the Company in such jurisdiction. The Company
may at any time, 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 the
principal office of the Company in the United States of America or the
principal office of a bank or trust company in the United States of America.
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Section 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.
SECTION 15. EXPENSES, ETC.
Section 15.1. Transaction Expenses.
Whether or not the transactions contemplated hereby 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 this Agreement or the Notes (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 this Agreement or the
Notes or in responding to any subpoena or other legal process or informal
investigative demand issued in connection with this Agreement or the Notes, 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 hereby and by the
Notes. 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).
Section 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 this Agreement or the Notes, and the termination of this Agreement.
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SECTION 16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT.
All representations and warranties contained herein 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 this Agreement shall be
deemed representations and warranties of the Company under this Agreement.
Subject to the preceding sentence, this Agreement and the Notes embody the
entire agreement and understanding between you and the Company and supersede
all prior agreements and understandings relating to the subject matter hereof.
SECTION 17. AMENDMENT AND WAIVER.
Section 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
Section 1, 2, 3, 4, 5, 6 or 21 hereof, 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 or
20.
Section 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
- 39 -
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.
Section 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.
Section 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 this
Agreement or the Notes, or have directed the taking of any action provided
herein or in the Notes 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.
SECTION 18. NOTICES.
All notices and communications provided for hereunder shall be in writing and
sent (a) by telefacsimile 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 with
a copy to the General Counsel, 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.
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SECTION 19. REPRODUCTION OF DOCUMENTS.
This Agreement and all documents relating thereto, 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.
SECTION 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, trustees, 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 (w)
to effect compliance with any law, rule, regulation or order applicable to you,
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(x) in response to any subpoena or other legal process, (y) in connection with
any litigation to which you are a party or (z) 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 your Notes and this
Agreement. 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.
SECTION 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.
SECTION 22. MISCELLANEOUS.
Section 22.1. 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.
Section 22.2. 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.
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Section 22.3. 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.
Section 22.4. 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.
Where the character or amount of any asset or liability or item of income or
expense is required to be determined or any consolidation or other accounting
computation is required to be made by the Company for the purposes of this
Agreement, the same shall be done by the Company in accordance with GAAP, to
the extent applicable, except where such principles are inconsistent with the
requirements of this Agreement.
Section 22.5. 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.
Section 22.6. 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 New York,
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.
Section 22.7. Submission to Jurisdiction.
The Company hereby irrevocably submits and consents to the jurisdiction of the
federal court located within the County of New York, State of New York (or if
such court lacks jurisdiction, the State courts located therein), and
irrevocably agrees that all actions or proceedings relating to this Agreement
and the Notes may be litigated in such courts, and the Company waives any
objection which it may have based on improper venue or forum non conveniens to
the conduct of any proceeding in any such court and waives personal service of
any and all process upon it, and consents that all such service of process be
made by delivery to it at the address of the Company set forth in Section 18
above and that service so made shall be deemed to be completed upon actual
receipt. Nothing contained in this section shall affect the right of any holder
- 43 -
of Notes to serve legal process in any other manner permitted by law or to
bring any action or proceeding in the courts of any jurisdiction against the
Company or to enforce a judgment obtained in the courts of any other
jurisdiction.
-------------------------
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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,
XXXXXXXX CORPORATION
By /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Corporate Controller
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Accepted as of April 1, 2002:
METROPOLITAN LIFE INSURANCE COMPANY
By /s/ A. Xxxxxx Xxxxx
Name: A. Xxxxxx Xxxxx
Title: Director
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Accepted as of April 1, 2002:
PRINCIPAL LIFE INSURANCE COMPANY, an Iowa corporation
By: Principal Capital Management, LLC, a Delaware limited liability company,
its authorized signatory
By /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Counsel
By /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Counsel
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Accepted as of April 1, 2002:
PRINCIPAL LIFE INSURANCE COMPANY,
ON BEHALF OF ONE OR MORE SEPARATE ACCOUNTS
By: Principal Capital Management, LLC, a Delaware limited liability company,
its authorized signatory
By /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Counsel
By /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Counsel
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Accepted as of April 1, 2002:
CGU LIFE INSURANCE COMPANY OF AMERICA, a Delaware corporation
By: Principal Capital Management, LLC, a Delaware limited liability company,
its authorized signatory
By /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Counsel
By /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Counsel
------------------------------------------------------------------------------
Accepted as of April 1, 2002:
THE TRAVELERS INSURANCE COMPANY
By /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Vice President
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Accepted as of April 1, 2002:
TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA
By /s/ Xxxx X. Xxxxxxxxxx, Xx.
Name: Xxxx X. Xxxxxxxxxx, Xx.
Title: Managing Director
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Accepted as of April 1, 2002:
TIAA-CREF LIFE INSURANCE COMPANY
By: Teachers Insurance and Annuity Association of America, as Authorized
Agent.
By /s/ Xxxx X. Xxxxxxxxxx, Xx.
Name: Xxxx X. Xxxxxxxxxx, Xx.
Title: Managing Director
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Accepted as of April 1, 2002:
HARTFORD LIFE INSURANCE COMPANY
By: Hartford Investment Services, Inc.
Its Agent and Attorney-In-Fact
By /s/ Xxx Xxxxxxx
Name: Xxx Xxxxxxx
Title: Vice President
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