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Exhibit 4(a)
X.X. Xxxxxx Company
Note Agreement
Dated as of June 2, 1998
Re:
$125,000,000 6.60% Senior Notes
Due June 2, 2010
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TABLE OF CONTENTS
(Not a part of the Agreement)
SECTION HEADING PAGE
SECTION 1. DESCRIPTION OF NOTES AND COMMITMENT........................ 1
Section 1.1. Description of Notes....................................... 1
Section 1.2. Commitment, Closing Date................................... 1
Section 1.3. Other Agreements........................................... 2
SECTION 2. PREPAYMENT OF NOTES........................................ 2
Section 2.1. Required Prepayments....................................... 2
Section 2.2. Optional Prepayment with Premium........................... 2
Section 2.3. Notice of Prepayments...................................... 3
Section 2.4. Allocation of Prepayments.................................. 3
Section 2.5. Direct Payment............................................. 3
SECTION 3. REPRESENTATIONS............................................ 3
Section 3.1. Representations of the Company............................. 3
Section 3.2. Representations of the Purchasers.......................... 4
SECTION 4. CLOSING CONDITIONS......................................... 5
Section 4.1. Closing Certificate........................................ 6
Section 4.2. Legal Opinions............................................. 6
Section 4.3. Related Transactions....................................... 6
Section 4.4. Private Placement Number................................... 6
Section 4.5. Consent of Holders of Other Indebtedness................... 6
Section 4.6. Satisfactory Proceedings................................... 6
Section 4.7. Waiver of Conditions....................................... 6
SECTION 5. COMPANY COVENANTS.......................................... 7
Section 5.1. Corporate Existence, Etc................................... 7
Section 5.2. Insurance.................................................. 7
Section 5.3. Payment of Taxes........................................... 7
Section 5.4. Maintenance of Properties.................................. 8
Section 5.5. Compliance with Law........................................ 8
Section 5.6. Nature of Business......................................... 8
Section 5.7 Consolidated Net Worth..................................... 8
Section 5.8. Consolidated Debt to Consolidated Total Capitalization..... 8
Section 5.9. Limitation on Liens........................................ 8
Section 5.10. Merger, Consolidation, Etc.................................10
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Section 5.11. Guaranties................................................11
Section 5.12. Repurchase of Notes.......................................11
Section 5.13. Transactions with Affiliates..............................11
Section 5.14. Termination of Pension Plans..............................11
Section 5.15. Reports and Rights of Inspection..........................11
SECTION 6. EVENTS OF DEFAULT AND REMEDIES THEREFOR...................16
Section 6.1. Events of Default.........................................16
Section 6.2. Notice to Holders.........................................17
Section 6.3. Acceleration of Maturities................................17
Section 6.4. Rescission of Acceleration................................18
SECTION 7. AMENDMENTS, WAIVERS AND CONSENTS..........................18
Section 7.1. Consent Required..........................................18
Section 7.2. Solicitation of Holders...................................19
Section 7.3. Effect of Amendment or Waiver.............................19
SECTION 8. INTERPRETATION OF AGREEMENT; DEFINITIONS..................19
Section 8.1. Definitions...............................................19
Section 8.2. Accounting Principles.....................................26
Section 8.3. Certain Changes in Accounting Principles..................26
Section 8.4. Directly or Indirectly....................................27
SECTION 9. MISCELLANEOUS.............................................27
Section 9.1. Registered Notes..........................................27
Section 9.2. Exchange of Notes.........................................27
Section 9.3. Loss, Theft, Etc. of Notes................................28
Section 9.4. Expenses, Stamp Tax Indemnity.............................28
Section 9.5. Powers and Rights Not Waived; Remedies Cumulative.........28
Section 9.6. Notices...................................................29
Section 9.7. Successors and Assigns....................................29
Section 9.8. Survival of Covenants and Representations.................29
Section 9.9. Severability..............................................29
Section 9.10. Governing Law.............................................29
Section 9.11. Captions..................................................30
Signature.....................................................................31
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ATTACHMENTS TO NOTE AGREEMENT:
Schedule I - Names and Addresses of Purchasers
Schedule II - Liens Securing Funded Debt (including Capitalized Leases) as of
February 28, 1998
Exhibit A - Form of 6.60% Senior Note
Exhibit B - Representations and Warranties of the Company
Exhibit C - Description of Special Counsel's Closing Opinion
Exhibit D - Description of Closing Opinion of Counsel to the Company
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X.X. XXXXXX COMPANY
0000 XXXXXX XXXX XXXXXXXXX
XX. XXXX, XXXXXXXXX 00000-0000
NOTE AGREEMENT
Re:
$125,000,000 6.60% Senior Notes
Due June 2, 2010
Dated as of
June 2, 1998
To the Purchaser listed on
Schedule I hereto which is a
Signatory to this Agreement
Ladies and Gentlemen:
The undersigned, X.X. XXXXXX COMPANY, a Minnesota corporation (the
"Company"), agrees with you as follows:
SECTION 1. DESCRIPTION OF NOTES AND COMMITMENT.
Section 1.1. Description of Notes. The Company will authorize the issue
and sale of $125,000,000 aggregate principal amount of its 6.60% Senior Notes to
be dated the date of issue, to bear interest from such date of issue at the rate
of 6.60% per annum, to be expressed to mature on June 2, 2010 (the "Maturity
Date"), and to be substantially in the form attached hereto as Exhibit A (the
"Notes"). Interest on the Notes shall be payable semiannually on the second day
of each June and December in each year (commencing December 2, 1998) and on the
Maturity Date and shall bear interest on overdue principal (including any
overdue required or optional prepayment of principal) and premium, if any, and
(to the extent legally enforceable) on any overdue installment of interest at
the Overdue Rate after the date due, whether by acceleration or otherwise, until
paid. Interest on the Notes shall be computed on the basis of a 360-day year of
twelve 30-day months. The Notes are not subject to prepayment or redemption
prior to the Maturity Date except as set forth in SECTION 2 of this Agreement.
The term "Notes" as used herein shall include each Note delivered pursuant to
this Agreement and the separate agreements with the other purchasers named in
Schedule I. You and the other purchasers named in Schedule I are hereinafter
sometimes referred to as the "Purchasers".
Section 1.2. Commitment, Closing Date. Subject to the terms and
conditions hereof and on the basis of the representations and warranties
hereinafter set forth, the Company agrees to issue and sell to you, and you
agree to purchase from the Company, Notes in the aggregate principal amount set
forth opposite your name in Schedule I hereto, at a price of 100% of the
principal amount thereof on the Closing Date hereafter mentioned.
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Delivery of the Notes on the Closing Date will be made at the offices of
Xxxxxxx and Xxxxxx, 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, against
payment therefor in Federal or other funds current and immediately available at
the principal office of The First National Bank of Chicago, Account name: X.X.
Xxxxxx Company, account number: 0000000, ABA number: 071 0000 13 in the amount
of the purchase price at 10:00 A.M., Chicago, Illinois time, on June 2, 1998 or
such later date (not later than June 10, 1998) as shall mutually be agreed upon
by the Company and the Purchasers (the "Closing Date"). The Notes delivered to
each Purchaser on the Closing Date will be in the form of a single registered
Note for the full amount of such Purchaser's purchase (unless different
denominations are specified by such Purchaser), registered in such Purchaser's
name or in the name of such nominee as such Purchaser may specify and in
substantially the form attached hereto as Exhibit A, all as such Purchaser may
specify at any time prior to the date fixed for delivery.
Section 1.3. Other Agreements. Simultaneously with the execution and
delivery of this Agreement, the Company is entering into similar agreements with
the other Purchasers under which such other Purchasers agree to purchase from
the Company the principal amount of Notes set opposite such Purchasers' names in
Schedule I, and your obligation and the obligations of the Company hereunder are
subject to the execution and delivery of the similar agreements by the other
Purchasers. The obligations of each Purchaser shall be several and not joint and
no Purchaser shall be liable or responsible for the acts or defaults of any
other Purchaser.
SECTION 2. PREPAYMENT OF NOTES.
Section 2.1. Required Prepayments. The Company agrees that on June 2, in
each year, commencing June 2, 2006 and ending June 2, 2009, both inclusive, it
will prepay and apply and there shall become due and payable on the principal
indebtedness evidenced by the Notes an amount equal to the lesser of (i)
$25,000,000 or (ii) the principal amount of the Notes then outstanding. The
entire remaining principal amount of the Notes shall become due and payable on
June 2, 2010. No premium shall be payable in connection with any required
prepayment made pursuant to this SECTION 2.1.
Section 2.2. Optional Prepayment with Premium. In addition to the
payments required by SECTION 2.1, upon compliance with SECTION 2.3, the Company
shall have the privilege, at any time and from time to time, of prepaying the
outstanding Notes, either in whole or in part (but if in part then in a minimum
principal amount of $100,000) by payment of the principal amount of the Notes,
or portion thereof to be prepaid, and accrued interest thereon to the date of
such prepayment, together with a premium equal to the Make-Whole Amount,
determined for the prepayment date with respect to such principal amount. For
purposes of SECTION 2.1, any prepayment of less than all of the outstanding
Notes pursuant to this SECTION 2.2 shall be deemed to be applied first, to the
amount of principal scheduled to remain unpaid on June 2, 2010, and then to the
remaining scheduled principal payments pursuant to SECTION 2.1 in inverse
chronological order.
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Section 2.3. Notice of Prepayments. The Company will give notice of any
prepayment of the Notes pursuant to SECTION 2.2 to each Holder thereof not less
than 30 days nor more than 60 days before the date fixed for such prepayment
specifying (i) such date, (ii) that a premium may be payable, (iii) the date
when such premium will be calculated, (iv) the estimated premium, and (v) the
accrued interest applicable to the prepayment. Notice of prepayment having been
so given, the aggregate principal amount of the Notes specified in such notice,
together with the Make-Whole Amount, if any, and accrued interest thereon shall
become due and payable on the prepayment date specified in such notice. Two
business days prior to the prepayment date specified in such notice, the Company
shall provide each Holder written notice of the premium, if any, payable in
connection with such prepayment and, whether or not any premium is payable, a
reasonably detailed computation of the Make-Whole Amount.
Section 2.4. Allocation of Prepayments. All partial prepayments of Notes
being prepaid shall be applied on all outstanding Notes ratably in accordance
with the unpaid principal amounts thereof.
Section 2.5. Direct Payment. Notwithstanding anything to the contrary in
this Agreement or the Notes, in the case of any Note owned by a Holder that is a
Purchaser or any other Institutional Holder who has given written notice to the
Company requesting that the provisions of this SECTION 2.5 shall apply, the
Company will promptly and punctually pay when due the principal thereof and
premium, if any, and interest thereon, without any presentment thereof directly
to the Holder at the address of such Holder set forth in Schedule I or at such
other address as such Holder may from time to time designate in writing to the
Company or, if a bank account is designated for such Holder on Schedule I hereto
or in any written notice to the Company from such Holder, the Company will make
such payments in immediately available funds to such bank account, marked for
attention as indicated, or in such other manner or to such other account of such
Holder in any bank in the United States as such Holder may from time to time
direct in writing. The Holder to which this SECTION 2.5 applies agrees that in
the event it shall sell or transfer any such Notes (i) it will, prior to the
delivery of such Notes (unless it has already done so), make a notation thereon
of all principal, if any, prepaid on such Notes and will also note thereon the
date to which interest has been paid on such Notes, and (ii) it will promptly
notify the Company in writing of the name and address of the transferee of any
Notes so transferred. With respect to Notes to which this SECTION 2.5 applies,
the Company shall be entitled to presume conclusively that any Institutional
Holder as shall have requested the provisions hereof to apply to its Notes
remains the Holder of such Notes until (y) the Company shall have received the
notice of the transfer of such Notes referred to above, and of the name and
address of the transferee, or (z) such Notes shall have been presented to the
Company as evidence of the transfer. Any such notice of transfer by a Holder
shall constitute conclusive evidence that the transfer of the Notes referred to
in such notice is regular and proper and the Company shall be entitled to rely
thereon.
SECTION 3. REPRESENTATIONS.
Section 3.1. Representations of the Company. The Company represents and
warrants that all representations set forth in the form of certificate attached
hereto as
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Exhibit B are true and correct as of the date hereof and are incorporated herein
by reference with the same force and effect as though herein set forth in full.
Section 3.2. Representations of the Purchasers.
(a) 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 or any state
securities laws and may be resold only if registered pursuant to the provisions
of the Securities Act and any applicable state securities laws 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.
(b) Sources 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:
(i) 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, exceeds 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, all within the meaning of Section I(a)
of PTE 95-60; or
(ii) the Source is either (A) an insurance company pooled separate
account, within the meaning of XXX 00-0 (xxxxxx Xxxxxxx 00, 0000), xx (X)
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 (ii), 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
(iii) the Source constitutes assets of an "investment fund"
(within the meaning of Part V of PTE 84-14 (the "QPAM Exemption"))
managed by a "qualified professional asset manager" or "QPAM" (within the
meaning of Part V of the QPAM Exemption), no employee benefit plan's
assets that are included in such investment fund, when combined with the
assets of all other employee benefit plans established or maintained by
the same employer or by an affiliate (within the meaning of Section
V(c)(1) of the QPAM Exemption) of such employer or by the same employee
organization and managed by such QPAM, exceed 20% of the total client
assets managed by such QPAM, the conditions of Part l(c) and (g) of the
QPAM Exemption are satisfied, neither the QPAM nor a person controlling
or
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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
(A) the identity of such QPAM and (B) 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 (iii); or
(iv) the Source is a governmental plan; or
(v) 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 (v); or
(vi) the Source does not include assets of any employee benefit
plan, other than a plan exempt from the coverage of ERISA.
Notwithstanding the foregoing, if any Purchaser is an insurance company
organized under the laws of a jurisdiction other than the United States or any
political subdivision thereof, such Purchaser represents that either (i) at
least one of the foregoing statements is an accurate representation as to each
Source to be used by such Purchaser to pay the purchase price of the Notes to be
purchased by such Purchaser hereunder or (ii) in any event, the execution and
delivery of this Agreement by such Purchaser and the purchase 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.
If you or any subsequent transferee of the Notes indicates in writing no
less than 10 days prior to the Closing Date, or in the case of any transfer, the
date of such applicable transfer, that you or such transferee are relying on any
representation contained in paragraph (ii), (iii) or (v) above, the Company
shall deliver on the Closing Date and on the date of any applicable transfer a
certificate, which shall either state that (A) it is neither a party in interest
nor a "disqualified person" (as defined in Section 4975(e)(2) of the Internal
Revenue Code of 1986, as amended), with respect to any plan identified pursuant
to paragraphs (ii) or (v) above, or (B) with respect to any plan, identified
pursuant to paragraph (iii) above, neither it nor 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 (iii) above or
to negotiate the terms of said QPAM's management agreement on behalf of any such
identified plan. As used in this SECTION 3.2, 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 4. CLOSING CONDITIONS.
Your obligation to purchase the Notes on the Closing Date shall be
subject to the performance by the Company of its agreements hereunder which by
the terms hereof are
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to be performed at or prior to the time of delivery of the Notes and to the
following further conditions precedent:
Section 4.1. Closing Certificate. You shall have received a certificate
dated the Closing Date, signed by the President or a Vice President of the
Company and addressed to the Purchasers, the truth and accuracy of which shall
be a condition to your obligation to purchase the Notes proposed to be sold to
you and to the effect that (i) the representations and warranties of the Company
set forth in Exhibit B hereto are true and correct on and with respect to the
Closing Date, (ii) the Company has performed all of its obligations hereunder
which are to be performed on or prior to the Closing Date and (iii) no Default
or Event of Default has occurred and is continuing.
Section 4.2. Legal Opinions. You shall have received from Xxxxxxx and
Xxxxxx, who are acting as your special counsel in this transaction, and from
Xxxxxxx X. Xxxxx, Vice President and General Counsel to the Company, their
respective opinions dated the Closing Date and addressed to the Purchasers, in
form and substance satisfactory to you, and covering the matters set forth in
Exhibits C and D, respectively, hereto.
Section 4.3. Related Transactions. Prior to or concurrently with the
issuance and sale of Notes to you, the Company shall have consummated the sale
of the entire principal amount of the Notes scheduled to be sold on the Closing
Date pursuant to this Agreement and the other Agreements referred to in SECTION
1.3.
Section 4.4. 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 4.5. Consent of Holders of Other Indebtedness. Any notice,
consent or approval required to be obtained from any holder or holders of any
outstanding Indebtedness of the Company and any amendments of agreements
pursuant to which any Indebtedness may have been issued which shall be necessary
to permit the consummation of the transactions contemplated hereby shall have
been obtained and all such notices, consents or amendments shall be reasonably
satisfactory in form and substance to you and your special counsel.
Section 4.6. Satisfactory Proceedings. All proceedings taken in
connection with the transactions contemplated by this Agreement, and all
documents necessary to the consummation thereof, shall be reasonably
satisfactory in form and substance to you and your special counsel, and you
shall have received a copy (executed or certified as may be appropriate) of all
legal documents or proceedings taken in connection with the consummation of said
transactions.
Section 4.7. Waiver of Conditions. If on the Closing Date the Company
fails to tender to you the Notes to be issued to you on such date or if the
conditions specified in this SECTION 4 have not been fulfilled, you may
thereupon elect to be relieved of all further obligations under this Agreement.
Without limiting the foregoing, if the
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conditions specified in this SECTION 4 have not been fulfilled, you may waive
compliance by the Company with any such condition to such extent as you may in
your solediscretion determine. Nothing in this SECTION 4.7 shall operate to
relieve the Company of any of its obligations hereunder or to waive any of your
rights against the Company except those which are expressly waived by you
pursuant to the terms of this SECTION 4.7.
SECTION 5. COMPANY COVENANTS.
From and after the Closing Date and continuing so long as any amount
remains unpaid on any Note:
Section 5.1. Corporate Existence, Etc. The Company will at all times
preserve and keep in full force and effect its corporate existence. Subject to
SECTION 5.10, the Company will at all times preserve and keep in full force and
effect the corporate existence of each of its Subsidiaries (unless merged into
the Company or a Subsidiary) and all rights and franchises of the Company and
its Subsidiaries unless, in the good faith judgment of the Company, the
termination of or failure to preserve and keep in full force and effect such
corporate existence, right or franchise would not, individually or in the
aggregate, have a materially adverse effect on the business, operations,
affairs, financial condition, properties or assets of the Company and its
Subsidiaries taken as a whole.
Section 5.2. 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; provided, however, that this SECTION 5.2 shall not
require the Company or any Subsidiary to maintain such insurance if, in the good
faith judgment of the Company, the failure to maintain such insurance and any
potential uninsured loss in connection therewith would not, individually or in
the aggregate, have a materially adverse effect on the business, operations,
affairs, financial condition, properties or assets of the Company and its
Subsidiaries taken as a whole.
Section 5.3. Payment of Taxes. The Company will and will cause each of
its Subsidiaries to file all income tax or similar 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 payable by any of them, to the extent such taxes and assessments have
become due and payable and before they have become delinquent, provided, that
neither the Company nor any Subsidiary need pay any such tax or assessment if
(i) 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 (ii) the
nonpayment of all such taxes and assessments in the aggregate would not
reasonably be expected to have a materially adverse effect on the business,
operations, affairs, financial condition, properties or assets of the Company
and its Subsidiaries taken as a whole.
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Section 5.4. 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 5.4 shall not prevent the Company or any Subsidiary from discontinuing
the operation and the maintenance of any of its properties if such
discontinuance is desirable in the conduct of its business and the Company has
concluded that such discontinuance would not, individually or in the aggregate,
have a materially adverse effect on the business, operations, affairs, financial
condition, properties or assets of the Company and its Subsidiaries taken as a
whole.
Section 5.5. Compliance with Law. The Company will and will cause each of
its Subsidiaries to comply with all laws, ordinances or governmental rules or
regulations to which each of them is subject, including, without limitation,
Environmental Laws, and will obtain and maintain in effect all licenses,
certificates, permits, franchises and other governmental authorizations
necessary to the ownership of their respective properties or to the conduct of
their respective businesses, in each case to the extent necessary to ensure that
non-compliance with such laws, ordinances or governmental rules or regulations
or failures to obtain or maintain in effect such licenses, certificates,
permits, franchises and other governmental authorizations would not reasonably
be expected, individually or in the aggregate, to have a materially adverse
effect on the business, operations, affairs, financial condition, properties or
assets of the Company and its Subsidiaries taken as a whole.
Section 5.6. Nature of Business. Neither the Company nor any Subsidiary
will engage in any business if, as a result, the general nature of the business
of the Company and its Subsidiaries, taken as a whole, 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 5.7. Consolidated Net Worth. The Company will at all times keep
and maintain Consolidated Net Worth at an amount not less than $200,000,000.
Section 5.8. Consolidated Debt to Consolidated Total Capitalization. The
Company will not at any time permit the aggregate amount of Consolidated Debt to
exceed 70% of Consolidated Total Capitalization.
Section 5.9. Limitation on Liens. The Company will not, and will not
permit any Subsidiary to, create or incur, or suffer to be incurred or to exist,
any mortgage, pledge, security interest, encumbrance, lien or charge of any kind
on its or their property or assets, whether now owned or hereafter acquired, or
upon any income or profits therefrom, or transfer any property for the purpose
of subjecting the same to the payment of obligations in priority to the payment
of its or their general creditors, or acquire or agree to acquire, or permit any
Subsidiary to acquire, any property or assets upon conditional sales agreements
or other title retention devices, except:
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(a) (i) liens for property taxes and assessments or governmental
charges or levies, provided that payment thereof is not at the time
required by SECTION 5.3 and (ii) liens securing claims or demands of
mechanics and materialmen;
(b) liens of or resulting from any judgment or award, the time for
the appeal or petition for rehearing of which shall not have expired, or
in respect of which the Company or a Subsidiary shall at any time in good
faith be prosecuting an appeal or proceeding for a review and in respect
of which a stay of execution pending such appeal or proceeding for review
shall have been secured;
(c) liens, charges, encumbrances and priority claims incidental to
the conduct of business or the ownership of properties and assets
(including warehousemen's and attorneys' liens and statutory landlords'
liens) and deposits, pledges or liens to secure the performance of bids,
tenders or trade contracts, or to secure statutory obligations, surety or
appeal bonds or other liens of like general nature incurred in the
ordinary course of business and not in connection with the borrowing of
money, provided in each case, the obligation secured, if material, is not
overdue or, if overdue, is being contested in good faith by appropriate
actions or proceedings;
(d) survey exceptions or encumbrances, easements or reservations,
or rights of others for rights-of-way, utilities and other similar
purposes, or zoning or other restrictions as to the use of real
properties, which are necessary for the conduct of the activities of the
Company and its Subsidiaries or which customarily exist on properties of
corporations engaged in similar activities and similarly situated and
which do not in any event materially impair their use in the operation of
the business of the Company and its Subsidiaries;
(e) mortgages, liens or security interests securing Indebtedness
of a Subsidiary to the Company or to another Subsidiary;
(f) mortgages, conditional sale contracts, security interests or
other arrangements for the retention of title (including Capitalized
Leases) existing as of February 28, 1998, securing Current Debt or Funded
Debt of the Company or any Subsidiary outstanding on such date and
reflected in Schedule II hereto;
(g) mortgages, conditional sale contracts, security interests or
other arrangements for the retention of title (including Capitalized
Leases) incurred after the Closing Date given to secure the payment of
the purchase price incurred in connection with the acquisition of fixed
assets useful and intended to be used in carrying on the business of the
Company or a Subsidiary, including liens existing on such fixed assets at
the time of acquisition thereof or at the time of acquisition by the
Company or a Subsidiary of any business entity then owning such fixed
assets, whether or not such existing liens were given to secure the
payment of the purchase price of the fixed assets to which they attach,
provided that (i) the lien or charge shall attach solely to the property
acquired or purchased, (ii) at the time of acquisition of such fixed
assets, the aggregate amount remaining unpaid on all Indebtedness secured
by liens on such fixed assets whether or not assumed by the
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Company or a Subsidiary shall not exceed an amount equal to 75% (or 100%
in the case of Capitalized Leases) of the lesser of the total purchase
price or fair market value at the time of acquisition of such fixed
assets (as determined in good faith by the Board of Directors of the
Company) and (iii) at the time of the incurrence of such Indebtedness and
after giving effect thereto, no Default or Event of Default would exist
under SECTION 5.8;
(h) mortgages, conditional sale contracts, security interests or
other arrangements for the retention of title (including Capitalized
Leases) created or extended in connection with renewing, extending or
refinancing Indebtedness secured by liens permitted by the preceding
paragraphs (F) and (G), provided (i) the principal amount of the
Indebtedness so secured shall not be increased over the principal amount
thereof outstanding immediately prior to such extension or renewal, (ii)
such lien or charge shall not attach to any property other than property
encumbered immediately prior to such renewal, extension or refinancing
and (iii) at the time of the incurrence of such Indebtedness and after
giving effect thereto, no Default or Event of Default would exist under
SECTION 5.8; and
(i) mortgages, conditional sales contracts, security interests,
liens, encumbrances or other arrangements for the retention of title in
addition to those described in clauses (A) through (H) above incurred
after February 28, 1998 and given to secure Indebtedness for borrowed
money of the Company or any Subsidiary; provided that (x) all
Indebtedness for borrowed money secured by liens permitted by this
SECTION 5.9(I) at any one time outstanding shall not exceed an amount
equal to 25% of Consolidated Net Tangible Assets and (y) at the time of
the incurrence of such Indebtedness and after giving effect thereto, no
Default or Event of Default would exist under SECTION 5.8.
Section 5.10. Merger, Consolidation, Etc. The Company shall not
consolidate with or merge with any other corporation or convey, transfer or
lease substantially all of its assets in a single transaction or series of
transactions to any Person unless:
(a) the successor formed by such consolidation or the survivor of
such merger or the Person that acquires by conveyance, transfer or lease
substantially all of the assets of the Company as an entirety, as the
case may be, shall be a solvent corporation organized and existing under
the laws of the United States or any State thereof (including the
District of Columbia), and, if the Company is not such corporation, such
corporation shall have executed and delivered to each Holder of any Notes
its assumption of the due and punctual performance and observance of each
covenant and condition of this Agreement and the Notes; and
(b) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing.
No such conveyance, transfer or lease of substantially all of the assets of the
Company shall have the effect of releasing the Company or any successor
corporation that shall theretofore have become such in the manner prescribed in
this SECTION 5.10 from its liability under this Agreement or the Notes.
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Section 5.11. Guaranties. The Company will not and will not permit any
Subsidiary to become or be liable in respect of any Guaranty except Guaranties
which are limited in amount to a stated maximum dollar exposure and included in
Consolidated Debt.
Section 5.12. Repurchase of Notes. Neither the Company nor any Subsidiary
or Affiliate, directly or indirectly, may repurchase or make any offer to
repurchase any Notes unless the offer has been made to repurchase Notes, pro
rata, from all Holders of the Notes at the same time and upon the same terms. In
case the Company or any Subsidiary or Affiliate repurchases any Notes, such
Notes shall thereafter be cancelled and no Notes shall be issued in substitution
therefor. Without limiting the foregoing, upon the repurchase or other
acquisition of any Notes by the Company, any Subsidiary or any Affiliate (or
upon the agreement of the Company, any Subsidiary or any Affiliate to purchase
or otherwise acquire any Notes), such Notes shall no longer be outstanding for
purposes of any section of this Agreement relating to the taking by the Holders
of any actions with respect hereto, including, without limitation, SECTION 6.3,
SECTION 6.4 and SECTION 7.1.
Section 5.13. Transactions with Affiliates. The Company will not, and
will not permit any Subsidiary to, enter into or be a party to, any Material
transaction, Material group of related transactions or Material arrangement with
any Affiliate (including without limitation, the purchase from, lease, sale to
or exchange of property with, or the rendering of any service by or for, any
Affiliate), except in the ordinary course of 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
obtain in a comparable arm's-length transaction with a Person other than an
Affiliate.
Section 5.14. 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) which could reasonably be expected to have a
materially adverse effect on the business, operations, affairs, financial
condition, properties or assets of the Company and its Subsidiaries taken as a
whole. Neither the Company nor any Subsidiary will permit any employee benefit
plan maintained by it to be terminated if such termination could reasonably be
expected to result in the imposition of a Material lien on any property of the
Company or any Subsidiary pursuant to Section 4068 of ERISA.
Section 5.15. Reports and Rights of Inspection. The Company will keep,
and will cause each Subsidiary to keep, proper books of record and account in
which full and correct entries will be made of all dealings or transactions of,
or in relation to, the business and affairs of the Company or such Subsidiary,
in accordance with GAAP consistently applied (except for changes disclosed in
the financial statements furnished to Holders pursuant to this SECTION 5.15 and
concurred in by the independent public accountants referred to in SECTION
5.15(B) hereof), and will furnish to each Institutional Holder (in duplicate if
so specified below or otherwise requested):
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(a) Quarterly Statements. As soon as available and in any event
within 60 days after the end of each quarterly fiscal period (except the
last) of each fiscal year of the Company, duplicate copies of:
(1) consolidated balance sheets of the Company and its
Subsidiaries as of the close of such quarter setting forth in
comparative form the consolidated figures for the fiscal year most
recently ended,
(2) consolidated statements of earnings and shareholders'
equity of the Company and its Subsidiaries for such quarterly
fiscal period and for the portion of the fiscal year ending with
such quarterly fiscal period, in each case, setting forth in
comparative form the figures for the corresponding periods of the
preceding fiscal year, and
(3) consolidated statements of cash flows of the Company
and its Subsidiaries for the portion of the fiscal year ending
with such quarterly fiscal period, setting forth in comparative
form the figures for the corresponding period of the preceding
fiscal year,
all in reasonable detail, prepared in accordance with GAAP applicable to
quarterly financial statements generally, and certified by a Senior
Financial Officer as fairly presenting, in all material respects, the
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 5.15(A);
(b) Annual Statements. As soon as available and in any event
within 105 days after the close of each fiscal year of the Company,
duplicate copies of:
(1) consolidated balance sheets of the Company and its
Subsidiaries as of the close of such fiscal year, and
(2) consolidated statements of earnings and shareholders'
equity and cash flows of the Company and its Subsidiaries for such
fiscal 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 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
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provides a reasonable basis for such opinion in the circumstances,
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 shall be deemed to satisfy the requirements of this SECTION
5.15(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, (ii) each Form 10-K, 10-Q and 8-K (and, in each case,
any successor form thereto) filed by the Company or any Subsidiary with
the Securities and Exchange Commission pursuant to Section 13 or 15(d) of
the Exchange Act, and (iii) each other regular or periodic report, each
registration statement that shall have become effective (without exhibits
except as expressly requested by such Holder), and each final prospectus
and all amendments thereto filed by the Company or any Subsidiary with
the Securities and Exchange Commission which in any such case is
Material;
(d) 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(b) 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, would reasonably be
expected to have a Material Adverse Effect;
(e) Officers' Certificates. Within the periods provided in
paragraphs (A) and (B) above, a certificate of a Senior Financial Officer
stating that he has
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reviewed the provisions of this Agreement and setting forth: (i) the
information and computations (in sufficient detail) required in order to
establish whether the Company was in compliance with the requirements of
SECTION 5.7 through SECTION 5.9, inclusive, at the end of the period
covered by the financial statements then being furnished, and (ii)
whether there existed as of the date of such financial statements and
whether, to the best of his knowledge, there exists on the date of the
certificate or existed at any time during the period covered by such
financial statements any Default or Event of Default and, if any such
condition or event exists on the date of the certificate, specifying the
nature and period of existence thereof and the action the Company is
taking and proposes to take with respect thereto; and
(f) 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.
For the purposes of this paragraph, "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 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 this
SECTION 5.15 that are otherwise publicly available. You will maintain the
confidentiality of such Confidential Information in accordance with procedures
adopted by you in good faith to protect confidential information of third
parties delivered to you, provided that you may deliver or disclose Confidential
Information to (i) your directors, officers, employees, agents, attorneys and
affiliates (to the extent such disclosure reasonably relates to the
administration of the investment represented by your Notes), (ii) your financial
advisors and other professional advisors who agree to hold confidential the
Confidential Information substantially in accordance with the terms of this
paragraph, (iii) any other Holder (other than a Holder which the Company shall
have notified the Holders is a Competitor), (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
paragraph), (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 paragraph), (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
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effect compliance with any law, rule, regulation or order applicable to you, (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, 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 paragraph as though it were a
party to this Agreement. On reasonable request by the Company in connection with
the delivery to any Holder 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 paragraph.
Without limiting the foregoing, the Company shall permit you and the
representatives of each Institutional Holder:
(i) 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) to visit the other offices and
properties of the Company and each Subsidiary, all at such reasonable
times and as often as may be reasonably requested in writing; and
(ii) if a Default or Event of Default then exists, at the expense
of the Company to visit and inspect any of the offices or properties of
the Company or any Subsidiary, to examine all their respective books of
account, records, reports and other papers, to make copies and extracts
therefrom, and to discuss their respective affairs, finances and accounts
with their respective 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;
provided, however, that (x) such right of visitation or inspection shall not
extend to any Purchaser or other Institutional Holder which is a Competitor and
(y) the Company shall not be required to provide you or any other Institutional
Holder information about the Company and its Subsidiaries pursuant to this
paragraph except to the extent relevant to determine the Company's
creditworthiness or its ability to meet, or to cause a Subsidiary to meet, its
obligations under this Agreement.
SECTION 6. EVENTS OF DEFAULT AND REMEDIES THEREFOR.
Section 6.1. Events of Default. Any one or more of the following shall
constitute an "Event of Default" as the term is used herein:
(a) Default shall occur in the payment of interest on any Note
when the same shall have become due and such default shall continue for
more than 10 days; or
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(b) Default shall occur in the making of any payment of the
principal of any Note or the premium thereon at the expressed or any
accelerated maturity date or at any date fixed for prepayment; or
(c) Default shall be made in the payment of the principal of or
interest on any Indebtedness of the Company or any Significant Subsidiary
for borrowed money aggregating in excess of $20,000,000, as and when the
same shall become due and payable by the lapse of time, by declaration,
by call for redemption or otherwise, and such default shall continue
beyond the period of grace, if any, allowed with respect thereto; or
(d) Default or the happening of any event shall occur under any
indenture, agreement, or other instrument under which any Indebtedness of
the Company or any Significant Subsidiary for borrowed money aggregating
in excess of $20,000,000 principal amount outstanding and as a
consequence of such default or event such Indebtedness has become or has
been declared due and payable before its stated maturity or before its
regularly scheduled dates of payment; or
(e) Default shall occur in the observance or performance of any
covenant or agreement contained in SECTION 5.7 through SECTION 5.10
hereof and such default shall continue for more than 30 days; or
(f) Default shall occur in the observance or performance of any
other provision of this Agreement which is not remedied within 30 days
after the earlier of (i) the day on which a Responsible Officer first
obtains knowledge of such default, or (ii) the day on which written
notice thereof is given to the Company by any Holder; or
(g) Any representation or warranty made by the Company herein, or
made by the Company in any statement or certificate furnished by the
Company in connection with the consummation of the issuance and delivery
of the Notes or furnished by the Company pursuant hereto, is untrue in
any material respect as of the date of the issuance or making thereof; or
(h) Final judgment or judgments for the payment of money
aggregating in excess of $2,500,000 is or are outstanding against the
Company or any Significant Subsidiary or against any property or assets
of either and any one of such judgments has remained unpaid, unvacated,
unbonded or unstayed by appeal or otherwise for a period of
60 days from the date of its entry; or
(i) The Company or any Significant Subsidiary (i) is generally not
paying, or admits in writing its inability to pay, its debts as they
become due, (ii) files, or consents by answer or otherwise to the filing
against it of, a petition for relief or reorganization or arrangement or
any other petition in bankruptcy, for liquidation or to take advantage of
any bankruptcy, insolvency, reorganization, moratorium or other similar
law of any jurisdiction, (iii) makes an assignment for
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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
(j) A court or governmental authority of competent jurisdiction
enters an order appointing, without consent by the Company or any of its
Significant Subsidiaries, a custodian, receiver, trustee or other officer
with similar powers with respect to it or with respect to any substantial
part of its property, 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 Significant Subsidiaries, or any
such petition shall be filed against the Company or any of its
Significant Subsidiaries and such petition shall not be dismissed within
60 days.
Section 6.2. Notice to Holders. When any Default or Event of Default
described in the foregoing SECTION 6.1 has occurred, or if any Holder or the
holder of any other evidence of Indebtedness of the Company gives any notice or
takes any other action with respect to a claimed default, the Company agrees to
give notice within 10 business days of such event to all Holders.
Section 6.3. Acceleration of Maturities. If an Event of Default with
respect to the Company described in SECTION 6.1(I) or (J) (other than an Event
of Default described in clause (i) of SECTION 6.1(I) or described in clause (vi)
of SECTION 6.1(I) by virtue of the fact that such clause encompasses clause (i)
of SECTION 6.1(I)) has occurred, all the Notes then outstanding shall
automatically become immediately due and payable, without presentment, demand or
notice of any kind.
If any Event of Default described in SECTION 6.1(A) or (B) 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, and all such Notes shall thereupon become, immediately due and payable,
without any presentment, demand, protest or other notice of any kind, all of
which are hereby expressly waived.
If any Event of Default (other than an Event of Default described in the
first paragraph of this SECTION 6.3) has occurred and is continuing, any Holder
or Holders of more than 25% 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 the entire principal and all interest accrued on all the Notes
then outstanding to be, and all Notes shall thereupon become, immediately due
and payable, without any presentment, demand, protest or other notice of any
kind, all of which are hereby expressly waived.
Upon the Notes becoming due and payable as a result of any Event of
Default as aforesaid, the Company will forthwith pay to the Holders the entire
principal and interest accrued on the Notes and, to the extent not prohibited by
applicable law, an amount as
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liquidated damages for the loss of the bargain evidenced hereby (and not as a
penalty) equal to the Make-Whole Amount. No course of dealing on the part of any
Holder or Holders nor any delay or failure on the part of any Holder or Holders
to exercise any right shall operate as a waiver of such right or otherwise
prejudice such Holder's rights, powers and remedies. The Company further agrees,
to the extent permitted by law, to pay to the Holder or Holders all costs and
expenses incurred by them in the collection of any Notes upon any default
hereunder or thereon, including reasonable compensation to such Holder's or
Holders' attorneys for all services rendered in connection therewith.
Section 6.4. Rescission of Acceleration. The provisions of SECTION 6.3
are subject to the condition that if the principal of and accrued interest on
all or any outstanding Notes have been declared immediately due and payable
pursuant to either the second or third paragraph of SECTION 6.3, the Holders
holding 66-2/3% in aggregate principal amount of the Notes then outstanding may,
by written instrument filed with the Company, rescind and annul such declaration
and the consequences thereof, provided that at the time such declaration is
annulled and rescinded:
(a) no judgment or decree has been entered for the payment of any
monies due pursuant to the Notes or this Agreement;
(b) all arrears of interest upon all the Notes and all other sums
payable under the Notes and under this Agreement (except any principal,
interest or premium on the Notes which has become due and payable solely
by reason of such declaration under SECTION 6.3) shall have been duly
paid; and
(c) each and every other Default and Event of Default shall have
been made good, cured or waived pursuant to SECTION 7.1;
and provided further, that no such rescission and annulment shall extend to or
affect any subsequent Default or Event of Default or impair any right consequent
thereto.
SECTION 7. AMENDMENTS, WAIVERS AND CONSENTS.
Section 7.1. Consent Required. Any term, covenant, agreement or condition
of this Agreement may, with the consent of the Company, be amended or compliance
therewith may be waived (either generally or in a particular instance and either
retroactively or prospectively), if the Company shall have obtained the consent
in writing of the Holders holding at least 66-2/3% in aggregate principal amount
of outstanding Notes; provided that in the case of any waiver, modification,
alteration or amendment which will (i) change the time of payment of the
principal of or the interest on any Note or change the principal amount thereof
or change the rate of interest thereon, or (ii) change any of the provisions
with respect to optional prepayment, or (iii) change the percentage of Holders
required to consent to any such amendment, alteration or modification or any of
the provisions of this SECTION 7 or SECTION 6, the Company shall have obtained
the consent in writing of the Holders holding 100% in aggregate principal amount
of the Notes.
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Section 7.2. Solicitation of Holders. 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 7.2 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. 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 as consideration for or as an inducement to the entering into by
any Holder of any waiver or amendment of any of the terms and provisions hereof
or of the Notes unless such remuneration is concurrently paid, or security is
concurrently granted, on the same terms, ratably to each Holder of Notes then
outstanding even if such Holder did not consent to such waiver or amendment.
Section 7.3. Effect of Amendment or Waiver. Any such amendment or waiver
shall apply equally to all of the Holders and shall be binding upon them, upon
each future Holder and upon the Company, whether or not such Note shall have
been marked to indicate such amendment or waiver. No such amendment or waiver
shall extend to or affect any obligation not expressly amended or waived or
impair any right consequent thereon.
SECTION 8. INTERPRETATION OF AGREEMENT; DEFINITIONS.
Section 8.1. Definitions. Unless the context otherwise requires, the
terms hereinafter set forth when used herein shall have the following meanings
and the following definitions shall be equally applicable to both the singular
and plural forms of any of the terms herein defined:
"Affiliate" shall mean any Person (other than a Subsidiary) (i) which
directly or indirectly through one or more intermediaries controls, or is
controlled by, or is under common control with, the Company, (ii) which
beneficially owns or holds 5% or more of any class of the Voting Stock of the
Company or (iii) 5% or more of the Voting Stock (or in the case of a Person
which is not a corporation, 5% or more of the equity interest) of which is
beneficially owned or held by the Company or a Subsidiary. The term "control"
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of a Person, whether through the
ownership of Voting Stock, by contract or otherwise.
"Agreement" shall mean this Note Agreement.
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"Capitalized Lease" shall mean any lease the obligation for Rentals with
respect to which is required to be capitalized on a consolidated balance sheet
of the lessee in accordance with GAAP.
"Capitalized Rentals" of any Person shall mean as of the date of any
determination the amount at which the aggregate Rentals due and to become due
under all Capitalized Leases under which such Person is a lessee would be
reflected as a liability on a consolidated balance sheet of such Person.
"Closing Date" shall have the meaning set forth in SECTION 1.2.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Company" shall mean X.X. Xxxxxx Company, a Minnesota corporation, and
any Person who suceeds to all, or substantially all, of the assets and business
of X.X. Xxxxxx Company.
"Competitor" shall mean any Person which, at the time of any proposed
visitation or inspection described in the final paragraph of SECTION 5.15 is at
such time or was at any time within five years immediately preceding the date of
such visitation or inspection, is or which controls, is controlled by or is
under common control with, a Person competing against the Company or any
Subsidiary as a developer, manufacturer or distributor of specialty chemicals
and related products, provided that an Institutional Holder shall not be deemed
to be competing against the Company or any Subsidiary as a manufacturer or
distributor of specialty chemicals and related products solely by reason of a
passive investment (including, but not limited to, the ownership of nonvoting
equity securities) or the exercise of rights or influence in connection with the
workout of any troubled passive investment in Persons engaged in such business.
For purposes of this definition, the term "control" (including the correlative
meanings of the terms "controlled by" and "under common control with"), as used
with respect to any Person, shall mean the possession, directly or indirectly,
of the power to direct or cause the direction of the management or policies of
such Person or influence such management or policies to a significant degree,
whether through the ownership of Voting Stock or by contract or otherwise and
without regard to whether such power is exercised.
"Consolidated" when used as a prefix to any Current Debt or Funded Debt
shall mean the aggregate amount of all such Current Debt or Funded Debt of the
Company and its Subsidiaries, determined on a consolidated basis eliminating
intercompany items.
"Consolidated Debt" shall mean, as of the date of any determination
thereof, the sum of all Consolidated Funded Debt and all Consolidated Current
Debt.
"Consolidated Net Tangible Assets" shall mean, as of the date of any
determination thereof, the total amount of all Tangible Assets of the Company
and its Subsidiaries after deducting all items which in accordance with GAAP
would be included on the liability and equity side of a consolidated balance
sheet, except deferred income taxes, deferred investment tax credits, capital
stock of any class, surplus, retained earnings and Consolidated Funded Debt.
-20-
"Consolidated Net Worth" shall mean, as of the date of any determination
thereof, the amount of capital stock accounts plus (or minus in the case of a
deficit) the sum of capital, surplus, retained earnings, unearned compensation,
currency translation adjustment and other items which in accordance with GAAP
would be included in the shareholders' equity portion of a consolidated balance
sheet, all of the Company and its Subsidiaries computed on a consolidated basis.
"Consolidated Total Capitalization" shall mean, as of the date of any
determination thereof, the sum of Consolidated Debt plus Consolidated Net Worth.
"Current Debt" of any Person shall mean, as of the date of any
determination thereof, (i) all Indebtedness of such Person for money borrowed
other than Funded Debt of such Person and (ii) Guaranties by such Person of
Current Debt of others.
"Default" shall mean any event or condition, the occurrence of which
would, with the lapse of time or the giving of notice, or both, constitute an
Event of Default as defined in SECTION 6.1.
"Environmental Laws" means any and all Federal, state, local, and foreign
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses, agreements or governmental
restrictions relating to pollution and the protection of the environment or the
release of any materials into the environment, including but not limited to
those related to hazardous substances or wastes, air emissions and discharges to
waste or public systems.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended, and any successor statute of similar import, together with the
regulations thereunder, in each case as in effect from time to time. References
to sections of ERISA shall be construed to also refer to any successor sections.
"ERISA Affiliate" shall mean any corporation, trade or business that is,
along with the Company, a member of a controlled group of corporations or a
controlled group of trades or businesses, as described in section 414(b) and
414(c), respectively, of the Code or Section 4001 of ERISA.
"Event of Default" shall have the meaning set forth in SECTION 6.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Funded Debt" of any Person shall mean (i) all Indebtedness for borrowed
money or which has been incurred in connection with the acquisition of assets in
each case having a final maturity of one or more than one year from the date of
origin thereof (or which is renewable or extendible at the option of the obligor
for a period or periods more than one year from the date of origin), including
all payments in respect thereof that are required to be made within one year
from the date of any determination of Funded Debt, whether or not the obligation
to make such payments shall constitute a current liability of
-21-
the obligor under GAAP, (ii) all Capitalized Rentals of such Person, and (iii)
all Guaranties by such Person of Funded Debt of others.
"GAAP" shall mean generally accepted accounting principles at the time in
the United States.
"Guaranties" by any Person shall mean all obligations (other than
endorsements in the ordinary course of business of negotiable instruments for
deposit or collection) of such Person guaranteeing or in effect guaranteeing any
Indebtedness, dividend or other obligation of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, including, without
limitation, all obligations incurred through an agreement, contingent or
otherwise, by such Person: (i) to purchase such Indebtedness or obligation or
any property or assets constituting security therefor, (ii) to advance or supply
funds (x) for the purchase or payment of such Indebtedness or obligation, (y) to
maintain working capital or other balance sheet condition or otherwise to
advance or make available funds for the purchase or payment of such Indebtedness
or obligation, or (iii) to lease property or to purchase Securities or other
property or services primarily for the purpose of assuring the owner of such
Indebtedness or obligation of the ability of the primary obligor to make payment
of the Indebtedness or obligation, or (iv) otherwise to assure the owner of the
Indebtedness or obligation of the primary obligor against loss in respect
thereof. For the purposes of all computations made under this Agreement, a
Guaranty in respect of any Indebtedness for borrowed money shall be deemed to be
Indebtedness equal to the principal amount of such Indebtedness for borrowed
money which has been guaranteed, and a Guaranty in respect of any other
obligation or liability or any dividend shall be deemed to be Indebtedness equal
to the maximum aggregate amount of such obligation, liability or dividend.
"Holder" shall mean, with respect to any Note, the Person in whose name,
at the time of reference, such Note is registered in the register maintained by
the Company pursuant to SECTION 9.1.
"Indebtedness" of any Person shall mean and include all obligations of
such Person which in accordance with GAAP shall be classified upon a balance
sheet of such Person as liabilities of such Person, and in any event shall
include all (i) obligations of such Person for borrowed money or which has been
incurred in connection with the acquisition of property or assets, (ii)
obligations secured by any lien or other charge upon property or assets owned by
such Person, even though such Person has not assumed or become liable for the
payment of such obligations, (iii) obligations created or arising under any
conditional sale or other title retention agreement with respect to property
acquired by such Person, notwithstanding the fact that the rights and remedies
of the seller, lender or lessor under such agreement in the event of default are
limited to repossession or sale of property, (iv) Capitalized Rentals and (v)
Guaranties of obligations of others of the character referred to in this
definition.
"Institutional Holder" shall mean any Holder which is a Purchaser or an
insurance company, bank, savings and loan association, trust company, investment
company, charitable foundation, employee benefit plan (as defined in ERISA) or
other institutional
-22-
investor or financial institution and, for purposes of the direct payment
provisions of this Agreement, shall include any nominee of any such Holder.
"Institutional Investor" means any bank, trust company, savings and loan
association or other financial institution, any pension plan, any investment
company, any insurance company, any broker or dealer, or any other similar
financial institution or entity, regardless of legal form.
"Make-Whole Amount" means, with respect to any Note, an amount equal to
the excess, if any, of the Discounted Value of the Remaining Scheduled Payments
with respect to the Called Principal of such Note over the amount of such Called
Principal, provided that the Make-Whole Amount may in no event be less than
zero. For the purposes of determining the Make-Whole Amount, the following terms
have the following meanings:
"Called Principal" means, with respect to any Note, the principal
of such Note that is to be prepaid pursuant to SECTION 2.2 or has become
or is declared to be immediately due and payable pursuant to SECTION 6.3,
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, 0.50% over the yield to maturity implied by (i) the yields
reported, as of 10:00 A.M. (New York City time) on the second Business
Day preceding the Settlement Date with respect to such Called Principal,
on the display designated as "Screen PX" on the Bloomberg Financial
Markets Service Screen (or such other display as may replace "Screen PX"
on the Bloomberg Financial Markets Service Screen) for actively traded
U.S. Treasury securities having a maturity equal to the Remaining Average
Life of such Called Principal as of such Settlement Date, or (ii) if such
yields are not reported as of such time or the yields reported as of such
time are not ascertainable, the Treasury Constant Maturity Series Yields
reported, for the latest day for which such yields have been so reported
as of the second Business Day preceding the Settlement Date with respect
to such Called Principal, in Federal Reserve Statistical Release H.15
(519) (or any comparable successor publication) for actively traded U.S.
Treasury securities having a constant maturity equal to the Remaining
Average Life of such Called Principal as of such Settlement Date. Such
implied yield will be determined, if necessary, by (a) converting U.S.
Treasury xxxx quotations to bond-equivalent yields in accordance with
accepted financial practice and (b) interpolating linearly between (1)
the actively traded U.S. Treasury security with the maturity closest to
and greater than the Remaining Average Life and (2) the actively traded
U.S. Treasury security with the maturity closest to and less than the
Remaining Average Life.
-23-
"Remaining Average Life" means, with respect to any Called
Principal, the number of years (calculated to the nearest one-twelfth
year) obtained by dividing (i) such Called Principal into (ii) the sum of
the products obtained by multiplying (a) the principal component of each
Remaining Scheduled Payment with respect to such Called Principal by (b)
the number of years (calculated to the nearest one-twelfth year) that
will elapse between the Settlement Date with respect to such Called
Principal and the scheduled due date of such Remaining Scheduled Payment.
"Remaining Scheduled Payments" means, with respect to the Called
Principal of any 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 2.2
or SECTION 6.3.
"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 2.2 or has become or is declared to be immediately
due and payable pursuant to SECTION 6.3, as the context requires.
"Material" means material in relation to the business, operations,
affairs, financial condition, assets, or properties of the Company and its
Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect on (a) the
business, operations, affairs, financial condition, assets or properties of the
Company and its Subsidiaries taken as a whole, or (b) the ability of the Company
to perform its obligations under this Agreement and the Notes, or (c) the
validity or enforceability of this Agreement or the Notes.
"Maturity Date" shall have the meaning set forth in SECTION 1.1.
"Multiemployer Plan" shall have the same meaning as in ERISA.
"Overdue Rate" shall mean with respect to the Notes, the lesser of (i)
the maximum interest rate permitted by law and (ii) 8.60% per annum.
"PBGC" means the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
"Person" shall mean an individual, partnership, corporation, trust or
unincorporated organization, and a government or agency or political subdivision
thereof.
-24-
"Plan" means a "pension plan," as such term is defined in, or governed
by, ERISA, established or maintained by the Company or any ERISA Affiliate or as
to which the Company or any ERISA Affiliate contributed or is a member or
otherwise may have any liability.
"Purchaser" shall have the meaning set forth in SECTION 1.1.
"Rentals" shall mean and include as of the date of any determination
thereof all fixed payments (including as such all payments which the lessee is
obligated to make to the lessor on termination of the lease or surrender of the
property) payable by the Company or a Subsidiary, as lessee or sublessee under a
lease of real or personal property, but shall be exclusive of any amounts
required to be paid by the Company or a Subsidiary (whether or not designated as
rents or additional rents) on account of maintenance, repairs, insurance, taxes
and similar charges. Fixed rents under any so-called "percentage leases" shall
be computed solely on the basis of the minimum rents, if any, required to be
paid by the lessee regardless of sales volume or gross revenues.
"Responsible Officer" means any Senior Financial Officer and any other
officer of the Company with responsibility for the administration of the
relevant portion of this Agreement.
"Securities Act" means the Securities Act of 1933, as amended from time
to time.
"Security" shall have the same meaning as in Section 2(1) of the
Securities Act.
"Senior Financial Officer" means the chief financial officer, principal
accounting officer, treasurer or assistant treasurer of the Company.
"Significant Subsidiary" means at any time any Subsidiary that would at
such time constitute a "significant subsidiary" (as such term is defined in
Regulation S-X of the Securities and Exchange Commission as in effect on the
Closing Date) of the Company.
The term "subsidiary" shall mean, as to any particular parent
corporation, any corporation of which more than 50% (by number of votes) of the
Voting Stock shall be beneficially owned, directly or indirectly, by such parent
corporation. The term "Subsidiary" shall mean a subsidiary of the Company.
"Tangible Assets" shall mean as of the date of any determination thereof,
the total amount of all assets of the Company and its Subsidiaries (less
depreciation, depletion and other properly deductible valuation reserves) after
deducting such assets as are properly classified as "intangible assets" in
accordance with GAAP.
"Voting Stock" shall mean Securities of any class or classes, the holders
of which are ordinarily, in the absence of contingencies, entitled to elect a
majority of the corporate directors (or Persons performing similar functions).
Section 8.2. Accounting Principles. Where the character or amount of any
asset or liability or item of income or expense is required to be determined or
any consolidation
-25-
or other accounting computation is required to be made for the purposes of this
Agreement, the same shall be done in accordance with GAAP, to the extent
applicable, except where such principles are inconsistent with the requirements
of this Agreement.
Section 8.3. Certain Changes in Accounting Principles. Notwithstanding
the provisions of SECTION 8.2, it is understood and agreed that in the event a
change after the date of this Agreement in GAAP affects the classification of
items on the balance sheet or statements of earnings of the Company or a
Subsidiary or the principles of consolidation of such balance sheets or
statements for the purpose of any computation or definition (the "Affected
Computation") under this Agreement which is governed by GAAP from time to time
in effect in such manner and to such an extent that, in the good faith judgment
of the chief financial officer of the Company compliance by the Company with any
covenant or covenants contained in this Agreement is unreasonable or inequitable
as a result of the application of the change in GAAP to the Affected
Computation, then and in any such event:
(a) the Company shall give written notice of such determination to
the Holders not later than 60 days after the date on which the change in
GAAP becomes effective (the "Effective Date"), which notice shall be
accompanied by a certificate of the President or a Vice President and the
Treasurer or an Assistant Treasurer of the Company:
(i) describing the change in GAAP in question and the
particular covenant or covenants which will be affected by such
change;
(ii) setting forth in reasonable detail (including detailed
calculations) the manner and extent to which the covenant or
covenants listed in the certificate are affected by the change in
GAAP;
(iii) setting forth in reasonable detail (including
detailed calculations) the information required in order to
establish that the Company would be in compliance with the
requirements of the covenant or covenants listed in the
certificate if the change in GAAP were not effective and if GAAP
in force and effect as of the date of this Agreement governed the
Affected Computation; and
(iv) confirming the determination by the chief financial
officer of the Company that compliance with the covenant or
covenants is unreasonable or inequitable as a result of the
application of the change in GAAP to the Affected Computation;
(b) you will enter into good faith negotiations with the Company
for an equitable amendment of such covenant or covenants pursuant to
SECTION 7 so as to place the parties, insofar as possible, in the same
relative position as if the change in accounting principles had not
occurred; and
(c) for the period from the Effective Date to the first to occur
of (i) the effective date of an amendment to this Agreement pursuant to
SECTION 7 that addresses the change in GAAP, or (ii) 90 days after the
notice referred to in
-26-
SECTION 8.3(A), the Company shall be deemed to be in compliance with the
covenant or covenants listed in the certificate if and so long as the
Company would be in compliance with such covenant if GAAP in force and
effect immediately prior to the Effective Date governed the Affected
Computation.
Section 8.4. Directly or Indirectly. Where any provision in this
Agreement refers to action to be taken by any Person, or which such Person is
prohibited from taking, such provision shall be applicable whether the action in
question is taken directly or indirectly by such Person.
SECTION 9. MISCELLANEOUS.
Section 9.1. Registered Notes. The Company shall cause to be kept at its
principal office a register for the registration and transfer of the Notes
(hereinafter called the "Note Register"), and the Company will register or
transfer or cause to be registered or transferred, as hereinafter provided and
under such reasonable regulations as it may prescribe, any Note issued pursuant
to this Agreement.
At any time and from time to time any Holder which has been duly
registered as hereinabove provided may transfer such Note upon surrender thereof
at the principal office of the Company duly endorsed or accompanied by a written
instrument of transfer duly executed by the Holder or its attorney duly
authorized in writing.
The Person in whose name any Note shall be registered shall be deemed and
treated as the owner and holder thereof and a Holder for all purposes of this
Agreement. Payment of or on account of the principal, premium, if any, and
interest on any registered Note shall be made to or upon the written order of
such Holder.
Section 9.2. Exchange of Notes. At any time, and from time to time, upon
not less than ten days' notice to that effect given by the Holder of any Note
initially delivered or of any Note substituted therefor pursuant to SECTION 9.1,
this SECTION 9.2 or SECTION 9.3, and, upon surrender of such Note at its office,
the Company will deliver in exchange therefor, without expense to such Holder,
except as set forth below, Notes for the same aggregate principal amount as the
then unpaid principal amount of the Note so surrendered, in the denomination of
$100,000 or any amount in excess thereof as such Holder shall specify, dated as
of the date to which interest has been paid on the Note so surrendered or, if
such surrender is prior to the payment of any interest thereon, then dated as of
the date of issue, payable to such Person or Persons, or order, as may be
designated by such Holder, and otherwise of the same form and tenor as the Notes
so surrendered for exchange. The Company may require the payment of a sum
sufficient to cover any stamp tax or governmental charge imposed upon such
exchange or transfer.
Section 9.3. Loss, Theft, Etc. of Notes. Upon receipt of evidence
satisfactory to the Company of the loss, theft, mutilation or destruction of any
Note, and in the case of any such loss, theft or destruction upon delivery of a
bond of indemnity in such form and amount as shall be reasonably satisfactory to
the Company, or in the event of such
-27-
mutilation upon surrender and cancellation of the Note, the Company will make
and deliver without expense to the Holder thereof, a new Note, of like tenor, in
lieu of such lost, stolen, destroyed or mutilated Note. If an Institutional
Holder is the owner of any such lost, stolen or destroyed Note, then the
affidavit of an authorized officer of such owner, setting forth the fact of
loss, theft or destruction and of its ownership of the Note at the time of such
loss, theft or destruction shall be accepted as satisfactory evidence thereof
and no further indemnity shall be required as a condition to the execution and
delivery of a new Note other than the written agreement of such owner,
substantially in the form used by Institutional Holders generally, to indemnify
the Company. The Company may require the Holder to pay any stamp tax or
governmental charge imposed in connection with the issuance of any new Note.
Section 9.4. Expenses, Stamp Tax Indemnity. Whether or not the
transactions herein contemplated shall be consummated, the Company agrees to pay
directly all of your reasonable out-of-pocket expenses in connection with the
preparation, execution and delivery of this Agreement and the transactions
contemplated hereby, including but not limited to the reasonable charges and
disbursements of Xxxxxxx and Xxxxxx, your special counsel, duplicating and
printing costs and charges for shipping the Notes, adequately insured to you at
your home office or at such other place as you may designate, and all such
expenses of the Holders relating to any amendment, waivers or consents pursuant
to the provisions hereof including, without limitation, any amendments, waivers
or consents resulting from any work-out, renegotiation or restructuring relating
to the performance by the Company of its obligations under this Agreement and
the Notes. The Company also agrees that it will pay and save you harmless
against any and all liability with respect to stamp and other taxes, if any,
which may be payable or which may be determined to be payable in connection with
the original execution and delivery of this Agreement or the Notes, whether or
not any Notes are then outstanding. The Company agrees to protect and indemnify
you against any liability for any and all brokerage fees and commissions payable
or claimed to be payable to any Person (including without limitation Chase
Securities, Inc. or X.X. Xxxxxx Securities Inc.) in connection with the
transactions contemplated by this Agreement. You represent that you have not
engaged any broker in connection with the transactions contemplated by this
Agreement.
Section 9.5. Powers and Rights Not Waived; Remedies Cumulative. No delay
or failure on the part of the Holder in the exercise of any power or right shall
operate as a waiver thereof; nor shall any single or partial exercise of the
same preclude any other or further exercise thereof, or the exercise of any
other power or right, and the rights and remedies of the Holder are cumulative
to and are not exclusive of any rights or remedies any such Holder would
otherwise have, and no waiver or consent, given or extended pursuant to SECTION
7 hereof, shall extend to or affect any obligation or right not expressly waived
or consented to.
Section 9.6. Notices. All communications provided for hereunder shall be
in writing and, if to a Holder, delivered or mailed prepaid by registered or
certified mail or overnight air courier, or by facsimile communication, in each
case addressed to such Holder at its address appearing on Schedule I hereto or
such other address as any Holder may designate to the Company in writing, and if
to the Company, delivered or mailed by registered or certified mail or overnight
air courier, or by facsimile communication, to the
-28-
Company at 0000 Xxxxxx Xxxx "X" Xxxx, Xxxxx Xxxxx, Xxxxxxxxx 00000-0000
Attention: Director of Treasury (facsimile: (000) 000-0000) or to such other
address as the Company may in writing designate to the Holders; provided,
however, that a notice to a Holder by overnight air courier shall only be
effective if delivered to such Holder at a street address designated for such
purpose in accordance with this SECTION 9.6, and a notice to such Holder by
facsimile communication shall only be effective if made by confirmed
transmission to such Holder at a telephone number designated for such purpose in
accordance with this SECTION 9.6 and promptly followed by the delivery of such
notice by registered or certified mail or overnight air courier, as set forth
above.
Section 9.7. Successors and Assigns. This Agreement shall be binding
upon, and shall inure to the benefit of, the Company and you and the Company's
and your successors and assigns, respectively, including each successive Holder.
Section 9.8. Survival of Covenants and Representations. All covenants,
representations and warranties made by the Company herein and in any
certificates delivered pursuant hereto, whether or not in connection with the
Closing Date or any Funding Date, shall survive the closing and the delivery of
this Agreement and the Notes.
Section 9.9. Severability. Should any part of this Agreement for any
reason be declared invalid or unenforceable, such decision shall not affect the
validity or enforceability of any remaining portion, which remaining portion
shall remain in force and effect as if this Agreement had been executed with the
invalid or unenforceable portion thereof eliminated and it is hereby declared
the intention of the parties hereto that they would have executed the remaining
portion of this Agreement without including therein any such part, parts, or
portion which may, for any reason, be hereafter declared invalid or
unenforceable.
Section 9.10. Governing Law. This Agreement and the Notes issued and sold
hereunder shall be governed by and construed in accordance with Minnesota law.
Section 9.11. Captions. The descriptive headings of the various Sections
or parts of this Agreement are for convenience only and shall not affect the
meaning or construction of any of the provisions hereof.
The execution hereof by you shall constitute a contract between us for
the uses and purposes hereinabove set forth, and this Agreement may be executed
in any number of counterparts, each executed counterpart constituting an
original but all together only one agreement.
X.X. XXXXXX COMPANY
By /s/ Xxxxx Xxxxxx Xxxxxxx
Its Senior Vice President, Chief
Financial Officer and Treasurer
-29-
Accepted as of June 2, 1998:
ALLSTATE LIFE INSURANCE
COMPANY
By /s/ Xxxxxxxx X. Xxxxxx
By /s/ Xxxxxx X. Xxxxxx
Authorized Signatories
Accepted as of June 2, 1998:
ALLSTATE LIFE INSURANCE
COMPANY OF NEW YORK
By /s/ Xxxxxxxx X. Xxxxxx
By /s/ Xxxxxx X. Xxxxxx
Authorized Signatories
Accepted as of June 2, 1998:
JEFFERSON-PILOT LIFE
INSURANCE COMPANY
By /s/ X. X. Xxxxxx
Its Executive Vice President
Accepted as of June 2, 1998:
XXXXXXXXX XXXXXXXX LIFE
INSURANCE COMPANY OF
AMERICA
By /s/ X. X. Xxxxxx
Its Executive Vice President
-30-
Accepted as of June 2, 1998:
THE CATHOLIC AID ASSOCIATION
By Advantus Capital Management,
Inc.
By /s/ Xxxxx X. Xxxxxxxx
Its Vice President
Accepted as of June 2, 1998:
COLORADO BANKERS LIFE
INSURANCE COMPANY
By Advantus Capital Management,
Inc.
By /s/ Xxxxx X. Xxxxxxxx
Its Vice President
Accepted as of June 2, 1998:
GREAT WESTERN INSURANCE
COMPANY
By Advantus Capital Management,
Inc.
By /s/ Xxxxx X. Xxxxxxxx
Its Vice President
Accepted as of June 2, 1998:
GUARANTEE RESERVE LIFE
INSURANCE COMPANY
By Advantus Capital Management,
Inc.
By /s/ Xxxxx X. Xxxxxxxx
Its Vice President
-31-
Accepted as of June 2, 1998:
THE MINNESOTA MUTUAL LIFE
INSURANCE COMPANY
By Advantus Capital Management,
Inc.
By /s/ Xxxxx X. Xxxxxxxx
Its Vice President
Accepted as of June 2, 1998:
NATIONAL FARM LIFE INSURANCE
COMPANY
By Advantus Capital Management,
Inc.
By /s/ Xxxxx X. Xxxxxxxx
Its Vice President
Accepted as of June 2, 1998:
NATIONAL TRAVELERS LIFE
COMPANY
By Advantus Capital Management,
Inc.
By /s/ Xxxxx X. Xxxxxxxx
Its Vice President
Accepted as of June 2, 1998:
PIONEER MUTUAL LIFE
INSURANCE COMPANY
By Advantus Capital Management,
Inc.
By /s/ Xxxxx X. Xxxxxxxx
Its Vice President
-32-
Accepted as of June 2, 1998:
PROTECTED HOME MUTUAL LIFE
INSURANCE COMPANY
By Advantus Capital Management,
Inc.
By /s/ Xxxxx X. Xxxxxxxx
Its Vice President
Accepted as of June 2, 1998:
UNITY MUTUAL LIFE INSURANCE
COMPANY
By Advantus Capital Management,
Inc.
By /s/ Xxxxx X. Xxxxxxxx
Its Vice President
Accepted as of June 2, 1998: XXXXXXX NATIONAL LIFE
INSURANCE COMPANY
By: PPM America, Inc., as
Attorney-in-Fact on behalf of
Xxxxxxx National Life Insurance
Company
By /s/ Xxxxx Xxxxx
Its Vice President
-33-
Accepted as of June 2, 1998:
THE LINCOLN NATIONAL LIFE
INSURANCE COMPANY
By Lincoln Investment Management,
Inc., Its Attorney-In-Fact
By /s/ Xxxxx X. Patch
Its Vice President
Accepted as of June 2, 1998:
LINCOLN NATIONAL HEALTH &
CASUALTY INSURANCE
COMPANY
By Lincoln Investment Management,
Inc., Its Attorney-In-Fact
By /s/ Xxxxx X. Patch
Its Vice President
Accepted as of June 2, 1998:
LINCOLN LIFE & ANNUITY
COMPANY OF NEW YORK
By Lincoln Investment Management,
Inc., Its Attorney-In-Fact
By /s/ Xxxxx X. Patch
Its Vice President
-34-
Accepted as of June 2, 1998:
LINCOLN NATIONAL
REINSURANCE COMPANY
(BARBADOS) LIMITED
By Lincoln Investment Management,
Inc., Its Attorney-In-Fact
By /s/ Xxxxx X. Patch
Its Vice President
Accepted as of June 2, 1998:
ALLIED LIFE INSURANCE
COMPANY
By Lincoln Investment Management,
Inc., Its Attorney-In-Fact
By /s/ Xxxxx X. Patch
Its Vice President
Accepted as of June 2, 1998:
FIRST PENN-PACIFIC LIFE
INSURANCE COMPANY
By Lincoln Investment Management,
Inc., Its Attorney-In-Fact
By /s/ Xxxxx X. Patch
Its Vice President
-35-
Accepted as of June 2, 1998:
SONS OF NORWAY
By Lincoln Investment Management,
Inc., Its Attorney-In-Fact
By /s/ Xxxxx X. Patch
Its Vice President
Accepted as of June 2, 1998:
KNIGHTS OF COLUMBUS
By /s/ Xxxxxx X. Xxxx
Its Assistant Supreme Secretary
Accepted as of June 2, 1998:
AMERICAN FAMILY LIFE
INSURANCE COMPANY
By /s/ Xxxxxxx Xxxxxxxx
Its Investment Director
Accepted as of June 2, 1998:
LUTHERAN BROTHERHOOD, a
Minnesota corporation
By /s/ Xxxx X. Xxxxxxx
Title: Assistant Vice President
-36-
PRINCIPAL AMOUNT OF
NAME AND ADDRESS OF PURCHASER NOTES TO BE PURCHASED
ALLSTATE LIFE INSURANCE COMPANY $10,000,000
0000 Xxxxxxx Xxxx, XXX X0X
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Private Placements Department
Telephone Number: (000) 000-0000
Telecopier Number: (000) 000-0000
Payments
All payments on or in respect of the Notes to be made by Fedwire transfer of
immediately available funds (identifying each payment with name of the Issuer
(and the Credit, if any), the Private Placement Number preceded by "DPP" and the
payment as principal, interest or premium) in the exact format as follows:
BBK = Xxxxxx Trust and Savings Bank
ABA #000000000
BNF = Allstate Life Insurance Company
Collection Account #000-000-0
ORG = X.X. Xxxxxx Company
OBI = DPP - [Insert Private Placement Number] --
Payment Due Date (MM/DD/YY) --
P ______ (enter "P" and the amount of principal being remitted,
for example, P5000000.00) --
I ______ (enter "I" and the amount of interest being remitted,
for example, I225000.00)
Notices
All notices of scheduled payments and written confirmation of each such payment,
to be addressed:
Allstate Insurance Company
Investment Operations--Private Placements
0000 Xxxxxxx Xxxx, XXX X0X
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
All financial reports, compliance certificates and all other written
communications, including notice of prepayments to be addressed as first
provided above.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
SCHEDULE I
(to Note Agreement)
PRINCIPAL AMOUNT OF
NAME AND ADDRESS OF PURCHASER NOTES TO BE PURCHASED
ALLSTATE LIFE INSURANCE COMPANY $10,000,000
OF NEW YORK
0000 Xxxxxxx Xxxx, XXX X0X
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Private Placements Department
Telephone Number: (000) 000-0000
Telecopier Number: (000) 000-0000
Payments
All payments on or in respect of the Notes to be made by Fedwire transfer of
immediately available funds (identifying each payment with name of the Issuer
(and the Credit, if any), the Private Placement Number preceded by "DPP" and the
payment as principal, interest or premium) in the exact format as follows:
BBK = Xxxxxx Trust and Savings Bank
ABA #000000000
BNF = Allstate Life Insurance Company of New
York Collection Account #000-000-0
ORG = X.X. Xxxxxx Company
OBI = DPP - [Enter Private Placement Number] --
Payment Due Date (MM/DD/YY) --
P ______ (enter "P" and the amount of
principal being remitted, for
example, P5000000.00) --
I ______ (enter "I" and the amount of
interest being remitted, for example,
I225000.00)
Notices
All notices of scheduled payments and written confirmation of each such payment,
to be addressed:
Allstate Insurance Company
Investment Operations--Private Placements
0000 Xxxxxxx Xxxx, XXX X0X
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
All financial reports, compliance certificates and all other written
communications, including notice of prepayments to be addressed as first
provided above.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
I-2
PRINCIPAL AMOUNT OF
NAME AND ADDRESS OF PURCHASER NOTES TO BE PURCHASED
JEFFERSON-PILOT LIFE INSURANCE $7,500,000
COMPANY
P. O. Xxx 00000
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Securities Administration - 3630
Telefacsimile: (000) 000-0000
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "X.X.
Xxxxxx Company, 6.60% Senior Notes due 2010, PPN 359694 C# 1, principal,
interest or premium") to:
Jefferson-Pilot Life Insurance Company
x/x Xxx Xxxx xx Xxx Xxxx
XXX #021 000 018 BNF: IOC566
Attention: P&I Department
Notices
All notices of payment on or in respect of the Notes and written confirmation of
each such payment, to be addressed to:
Jefferson-Pilot Life Insurance Company
x/x Xxx Xxxx xx Xxx Xxxx
P. O. Xxx 00000
Xxxxxx, XX 00000
Attention: P&I Department
with duplicate notice to Jefferson-Pilot Life Insurance Company at the address
first provided above.
All notices and communications other than those in respect to payments to be
addressed as first provided above.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
I-3
PRINCIPAL AMOUNT OF
NAME AND ADDRESS OF PURCHASER NOTES TO BE PURCHASED
XXXXXXXXX XXXXXXXX LIFE INSURANCE $7,500,000
COMPANY OF AMERICA
P. O. Xxx 00000
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Securities Administration - 3630
Telefacsimile: (000) 000-0000
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "X.X.
Xxxxxx Company, 6.60% Senior Notes due 2010, PPN 359694 C# 1, principal,
interest or premium") to:
Xxxxxxxxx Xxxxxxxx Life Insurance Company of America
x/x Xxx Xxxx xx Xxx Xxxx
XXX #021 000 018 BNF: IOC566
Attention: P&I Department
Notices
All notices of payment on or in respect of the Notes and written confirmation of
each such payment, to be addressed to:
Xxxxxxxxx Xxxxxxxx Life Insurance Company of America
x/x Xxx Xxxx xx Xxx Xxxx
P. O. Xxx 00000
Xxxxxx, XX 00000
Attention: P&I Department
with duplicate notice to Xxxxxxxxx Xxxxxxxx Life Insurance Company of America at
the address first provided above.
All notices and communications other than those in respect to payments to be
addressed as first provided above.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
I-4
PRINCIPAL AMOUNT OF
NAME AND ADDRESS OF PURCHASER NOTES TO BE PURCHASED
THE CATHOLIC AID ASSOCIATION $1,000,000
c/o Advantus Capital Management, Inc.
000 Xxxxxx Xxxxxx Xxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Client Administrator
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "X.X.
Xxxxxx Company, 6.60% Senior Notes due 2010, PPN 359694 C# 1, principal,
interest or premium") to:
U.S. Bank, N.A.
Minneapolis, Minnesota
ABA #000-000-000
for credit to: U.S. Bank Trust, N.A.
Account Number 180121167365, TSU: 050
For further credit to: The Catholic Aid Association
Account Number 00000000
Attention: Xxxx X'Xxxx (000) 000-0000
Notices
All notices and communications, including notices with respect to payments and
written confirmation of each such payment, to be addressed as first provided
above.
Name of Nominee in which Notes are to be issued: Var & Co.
Taxpayer I.D. Number: 00-0000000
I-5
PRINCIPAL AMOUNT OF
NAME AND ADDRESS OF PURCHASER NOTES TO BE PURCHASED
COLORADO BANKERS LIFE INSURANCE COMPANY $500,000
c/o Advantus Capital Management, Inc.
000 Xxxxxx Xxxxxx Xxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Client Administrator
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "X.X.
Xxxxxx Company, 6.60% Senior Notes due 2010, PPN 359694 C# 1, principal,
interest or premium") to:
Bankers Trust Company (ABA #021-001-033)
New York, New York
for credit to Account Number 99-911145
for further credit to: Colorado Bankers Life Insurance Company
Account Number 098125
Notices
All notices and communications, including notices with respect to payments and
written confirmation of each such payment, to be addressed as first provided
above.
Name of Nominee in which Notes are to be issued: Xxxxxxx & Co.
Taxpayer I.D. Number: 00-0000000
I-6
PRINCIPAL AMOUNT OF
NAME AND ADDRESS OF PURCHASER NOTES TO BE PURCHASED
GREAT WESTERN INSURANCE COMPANY $500,000
c/o Advantus Capital Management, Inc.
000 Xxxxxx Xxxxxx Xxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Client Administrator
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "X.X.
Xxxxxx Company, 6.60% Senior Notes due 2010, PPN 359694 C# 1, principal,
interest or premium") to:
Zions First National Bank
Salt Lake City, Utah
ABA #000-0000-00
For credit to: Great Western Insurance Company
Account Number 00-00000-0
Any checks (in lieu of wire transfer) should be sent to the following:
Zions First National - Bank Trust Department
P. O. Xxx 00000
Xxxx Xxxx Xxxx, Xxxx 00000
Ref: Great Western Insurance Company
Notices
All notices and communications, including notices with respect to payments and
written confirmation of each such payment, to be addressed as first provided
above.
Name of Nominee in which Notes are to be issued: Zions First National Bank for
Great Western Insurance Company
Taxpayer I.D. Number: 00-0000000
I-7
PRINCIPAL AMOUNT OF
NAME AND ADDRESS OF PURCHASER NOTES TO BE PURCHASED
GUARANTEE RESERVE LIFE INSURANCE $500,000
COMPANY
c/o Advantus Capital Management, Inc.
000 Xxxxxx Xxxxxx Xxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Client Administrator
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "X.X.
Xxxxxx Company, 6.60% Senior Notes due 2010, PPN 359694 C# 1, principal,
interest or premium") to:
Mercantile National Bank of Indiana
Hammond, Indiana
ABA #000-000-000
For credit to: Guarantee Reserve Life Insurance Company
Attention: Trust Department, Xxxxxx XxXxxx
Account Number: 287000
Notices
All notices and communications, including notices with respect to payments and
written confirmation of each such payment, to be addressed as first provided
above.
Name of Nominee in which Notes are to be issued: Xxxx & Co.
Taxpayer I.D. Number: 00-0000000
I-8
PRINCIPAL AMOUNT OF
NAME AND ADDRESS OF PURCHASER NOTES TO BE PURCHASED
THE MINNESOTA MUTUAL LIFE INSURANCE $10,000,000
COMPANY
000 Xxxxxx Xxxxxx Xxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Advantus Capital Management, Inc.
Facsimile: (000) 000-0000
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "X.X.
Xxxxxx Company, 6.60% Senior Notes due 2010, PPN 359694 C# 1, principal,
interest or premium") to:
U.S. Bank Trust N.A.
Minneapolis, Minnesota
ABA #000000000
BNF The Minnesota Mutual Life Insurance Company
Account Number 1801-10-00600-4
Notices
All notices and communications, including notices with respect to payments and
written confirmation of each such payment, to be addressed as first provided
above.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
I-9
PRINCIPAL AMOUNT OF
NAME AND ADDRESS OF PURCHASER NOTES TO BE PURCHASED
NATIONAL FARM LIFE INSURANCE COMPANY $500,000
c/o Advantus Capital Management, Inc.
000 Xxxxxx Xxxxxx Xxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Client Administrator
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "X.X.
Xxxxxx Company, 6.60% Senior Notes due 2010, PPN 359694 C# 1, principal,
interest or premium") to:
Texas Commerce Bank N.A.
Xxxx Xxxxx, XX 00000
ABA #000-000-000
For credit to: National Farm Life Insurance Company
Account Number: 07303034907
Notices
All notices and communications, including notices with respect to payments and
written confirmation of each such payment, to be addressed as first provided
above.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
I-10
PRINCIPAL AMOUNT OF
NAME AND ADDRESS OF PURCHASER NOTES TO BE PURCHASED
NATIONAL TRAVELERS LIFE COMPANY $1,000,000
c/o Advantus Capital Management, Inc.
000 Xxxxxx Xxxxxx Xxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Client Administrator
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "X.X.
Xxxxxx Company, 6.60% Senior Notes due 2010, PPN 359694 C# 1, principal,
interest or premium") to:
U.S. Bank, N.A.
Minneapolis, Minnesota
ABA #000-000-000
for credit to: U.S. Bank Trust, N.A.
Account Number 180121167365, TSU: 47300050
for further credit to: National Travelers Life Company
Account Number 00000000
Attention: Xxxx X'Xxxx (000) 000-0000
Notices
All notices and communications, including notices with respect to payments and
written confirmation of each such payment, to be addressed as first provided
above.
Name of Nominee in which Notes are to be issued: Var & Co.
Taxpayer I.D. Number: 00-0000000
I-11
PRINCIPAL AMOUNT OF
NAME AND ADDRESS OF PURCHASER NOTES TO BE PURCHASED
PIONEER MUTUAL LIFE INSURANCE COMPANY $1,000,000
c/o Advantus Capital Management, Inc.
000 Xxxxxx Xxxxxx Xxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Client Administrator
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "X.X.
Xxxxxx Company, 6.60% Senior Notes due 2010, PPN 359694 C# 1, principal,
interest or premium") to:
The Bank of New York
ABA #000-000-000
for credit to: Pioneer Mutual Life Insurance Company/NCT & Co. Fargo
Account Number 270576
Notices
All notices and communications, including notices with respect to payments and
written confirmation of each such payment, to be addressed as first provided
above.
Name of Nominee in which Notes are to be issued: Xxxxx & Co.
Taxpayer I.D. Number: 00-0000000
I-12
PRINCIPAL AMOUNT OF
NAME AND ADDRESS OF PURCHASER NOTES TO BE PURCHASED
PROTECTED HOME MUTUAL LIFE INSURANCE $500,000
COMPANY
c/o Advantus Capital Management, Inc.
000 Xxxxxx Xxxxxx Xxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Client Administrator
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "X.X.
Xxxxxx Company, 6.60% Senior Notes due 2010, PPN 359694 C# 1, principal,
interest or premium") to:
Norwest Bank Minnesota, N.A.
ABA No. 000-000-000
BNF=Norwest Trust Clearing Mpls
BNFA=0840245
OBI=FFC to: Norwest Client Acct No. 13371700
Norwest Client Account Name: Protected Home Mutual Life Insurance Company
Notices
All notices and communications, including notices with respect to payments and
written confirmation of each such payment, to be addressed as first provided
above.
Name of Nominee in which Notes are to be issued: Norwest Bank MN as Custodian
for Protected Home Mutual Life Insurance Co.
Taxpayer I.D. Number: 00-0000000
I-13
PRINCIPAL AMOUNT OF
NAME AND ADDRESS OF PURCHASER NOTES TO BE PURCHASED
UNITY MUTUAL LIFE INSURANCE COMPANY $1,000,000
c/o Advantus Capital Management, Inc.
000 Xxxxxx Xxxxxx Xxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Client Administrator
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "X.X.
Xxxxxx Company, 6.60% Senior Notes due 2010, PPN 359694 C# 1, principal,
interest or premium") to:
Chase NYC
ABA #000-000-000
For credit to: Chase Rochester, DDA# 0000400044
Attention: Xx. Xxxx Xxxxxx (000) 000-0000
For further credit to: Unity Mutual Life Insurance Company - MMLIC -
611002310
Notices
All notices and communications, including notices with respect to payments and
written confirmation of each such payment, to be addressed as first provided
above.
Name of Nominee in which Notes are to be issued: XXXXXX & CO
Tax I.D. Number: 00-0000000
I-14
PRINCIPAL AMOUNT OF
NAME AND ADDRESS OF PURCHASER NOTES TO BE PURCHASED
XXXXXXX NATIONAL LIFE INSURANCE $30,000,000
COMPANY
0000 Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "X.X.
Xxxxxx Company, 6.60% Senior Notes due 2010, PPN 359694 C# 1, principal,
interest or premium") to:
NORTHERN TRUST CHGO
ABA #0000-0000-0
Credit Account Number 5186041000
For Further Credit to: 2691241/Xxxxxxx National Life Insurance Company
Ref: (Name of Company) PVTPL, date of payment, principal and interest
breakdown.
Attn: Xxxxxx Xxxxx/Xxxxxxx Calpe
Notices
All notices and communications with respect to payment/rate notices, to be faxed
to (Operations Contact):
Xxxxxx Xxxxx Portfolio Admin, - Xxxxx Xxxxxxx Xxxxxxx Xxxxx
Northern Trust PPM America Inc. Xxxxxxx National Life
000 X. Xxxxx, Xxxxx X0X 000 Xxxx Xxxxxx Xxxxx XXX Xxxxxxx Inc.
Xxxxxxx, XX 00000 Suite 1200 000 Xxxx Xxxxxx Xxxxx
Tel: (000) 000-0000 Xxxxxxx, XX 00000 Suite 1200
Fax: (000) 000-0000 Tel: (000) 000-0000 Xxxxxxx, XX 00000
Fax: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000
All notices, waivers amendments, consents, financial information and COPIES of
all original notes and credit documents should be sent to (Credit Contact):
PPM America, Inc.
000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Private Placements-Investment Grade
Telephone Number: (000) 000-0000/2561
Facsimile Number: (000) 000-0000
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
I-15
PRINCIPAL AMOUNT OF
NAME AND ADDRESS OF PURCHASER NOTES TO BE PURCHASED
THE LINCOLN NATIONAL LIFE INSURANCE $4,800,000*
COMPANY
c/o Lincoln Investment Management, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Investments/Private Placements
Facsimile: (000) 000-0000 Private Placements
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "X.X.
Xxxxxx Company, 6.60% Senior Notes due 2010, PPN 359694 C# 1, principal,
interest or premium") to:
Bankers Trust Company (ABA #000000000)
Private Placement Processing
New York, New York
Account Number 00-000-000
FURTHER CREDIT TO: The Lincoln National Life Insurance Company
Custodial Account Numbers Listed Below
*PRINCIPAL ACCOUNT NAME BANK CUSTODY
AMOUNT NUMBER
OF NOTES
$1,600,000 The Lincoln National Life 98185
Insurance Company (LFP)
$2,000,000 The Lincoln National Life 98264
Insurance Company (UNM)
$1,200,000 The Lincoln National Life 98194
Insurance Company (IAL)
Notices
All notices and communications, including notices with respect to payments and
written confirmation of each such payment, to be addressed as first provided
above with duplicate notices with respect to payments to:
Bankers Trust Company
P. O. Box 000
Xxxxxxx Xxxxx Xxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Private Placement Unit
Facsimile: (000) 000-0000 Xxxxxxx Xxxxx, Private Placements
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
I-16
PRINCIPAL AMOUNT OF
NAME AND ADDRESS OF PURCHASER NOTES TO BE PURCHASED
THE LINCOLN NATIONAL LIFE INSURANCE $10,000,000*
COMPANY
c/o Lincoln Investment Management, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Investments/Private Placements
Facsimile: (000) 000-0000 Private Placements
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "X.X.
Xxxxxx Company, 6.60% Senior Notes due 2010, PPN 359694 C# 1, principal,
interest or premium") to:
Chase Manhattan Bank
New York, New York
ABA #: 021 00 0021
CHASE NYC/CTR/BNF
A/C #000-0-000000
FURTHER CREDIT TO: The Lincoln National Life Insurance Company
Custodial Account Numbers Listed Below
*PRINCIPAL ACCOUNT NAME BANK CUSTODY
AMOUNT NUMBER
OF NOTES
$5,000,000 The Lincoln National Life G07173
Insurance Company (CIDP)
$5,000,000 The Lincoln National Life G07174
Insurance Company (CIND)
Notices
All notices and communications, including notices with respect to payments and
written confirmation of each such payment, to be addressed as first provided
above with duplicate notices with respect to payments to:
Chase Manhattan Bank, N.A.
Private Placement Servicing
X.X. Xxx 0000
Xxxxxxx Xxxxx Xxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000 Private Placements
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
I-17
PRINCIPAL AMOUNT OF
NAME AND ADDRESS OF PURCHASER NOTES TO BE PURCHASED
LINCOLN NATIONAL HEALTH & CASUALTY $1,600,000
INSURANCE COMPANY
c/o Lincoln Investment Management, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Investments/Private Placements
Facsimile: (000) 000-0000 Private Placements
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "X.X.
Xxxxxx Company, 6.60% Senior Notes due 2010, PPN 359694 C# 1, principal,
interest or premium") to:
Chase Manhattan Bank
New York, New York
ABA #: 021 00 0021
CHASE NYC/ CTR / BNF
A/C #000-0-000000
FURTHER CREDIT: Lincoln National Health & Casualty Insurance Company
Custody Account Number G06323
Notices
All notices and communications, including notices with respect to payments and
written confirmation of each such payment, to be addressed to:
Chase Manhattan Bank, N.A.
Private Placement Servicing
X.X. Xxx 0000
Xxxxxxx Xxxxx Xxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000 Private Placements
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
I-18
PRINCIPAL AMOUNT OF
NAME AND ADDRESS OF PURCHASER NOTES TO BE PURCHASED
LINCOLN LIFE & ANNUITY COMPANY $1,000,000
OF NEW YORK
c/o Lincoln Investment Management, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Investments/Private Placements
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "X.X.
Xxxxxx Company, 6.60% Senior Notes due 2010, PPN 359694 C# 1, principal,
interest or premium") to:
Bankers Trust Company
ABA #000000000
Private Placement Processing
New York, New York
Account Number 00-000-000
for the account of: Lincoln Life & Annuity Company of New York
Custody Account Number 98440
Notices
All notices and communications, including notices with respect to payments and
written confirmation of each such payment, to be addressed as first provided
above with duplicate notices with respect to payments to:
Bankers Trust Company
P. O. Box 000
Xxxxxxx Xxxxx Xxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Private Placement Unit
Facsimile: (000) 000-0000 Xxxxxxx Xxxxx, Private Placements
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
I-19
PRINCIPAL AMOUNT OF
NAME AND ADDRESS OF PURCHASER NOTES TO BE PURCHASED
LINCOLN NATIONAL REINSURANCE COMPANY $1,000,000
(BARBADOS) LTD.
c/o Lincoln Investment Management, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Investments/Private Placements
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "X.X.
Xxxxxx Company, 6.60% Senior Notes due 2010, PPN 359694 C# 1, principal,
interest or premium") to:
Chase Manhattan Bank
New York, New York
ABA #: 021 00 0021
CHASE NYC/ CTR / BNF
A/C #000-0-000000
FURTHER CREDIT TO: Lincoln National Reinsurance Company (Barbados) Ltd.
Custody Account Number G06492
Notices
All notices and communications, including notices with respect to payments and
written confirmation of each such payment, to be addressed to:
Chase Manhattan Bank, N.A.
Private Placement Servicing
X.X. Xxx 0000
Xxxxxxx Xxxxx Xxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000 Private Placements
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
I-20
PRINCIPAL AMOUNT OF
NAME AND ADDRESS OF PURCHASER NOTES TO BE PURCHASED
ALLIED LIFE INSURANCE COMPANY "B" $1,000,000
c/o Lincoln Investment Management, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Investments/Private Placements
Facsimile: (000) 000-0000 Private Placements
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "X.X.
Xxxxxx Company, 6.60% Senior Notes due 2010, PPN 359694 C# 1, principal,
interest or premium") to:
Citibank N.A. (ABA #021-000-089)
New York, New York
Concentration A/C: 36112805
For further credit: Allied Life Insurance Company "B"
Custody Account No.: 846591
Notices
All notices and communications, including notices with respect to payments and
written confirmation of each such payment, to be addressed as first provided
above with duplicate notice with respect to payments to:
Citicorp
0000 X. Xxxxxxxxx Xxxx.
Xxxxx, XX 00000
Attention: P&I Department; Xxxxxx Xxxxx
For Account: 846591 Allied Life Insurance Company "X"
X&X Department Fax: (000) 000-0000
Name of Nominee in which Notes are to be issued: XXXXXXX & CO
TAXPAYER I.D. NUMBER: 00-0000000
I-21
PRINCIPAL AMOUNT OF
NAME AND ADDRESS OF PURCHASER NOTES TO BE PURCHASED
FIRST PENN-PACIFIC LIFE INSURANCE $1,600,000
COMPANY
c/o Lincoln Investment Management, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Investments/Private Placements
Facsimile: (000) 000-0000 Private Placements
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "X.X.
Xxxxxx Company, 6.60% Senior Notes due 2010, PPN 359694 C# 1, principal,
interest or premium") to:
Chase Manhattan Bank (ABA #000000000)
New York, New York
A/C 000-0-000000
Further credit to A/C: G-05996 First Penn-Pacific Life Insurance Company
Notices
All notices and communications, including notices with respect to payments, and
written confirmation of each such payment, to be addressed as first provided
above.
Name of Nominee in which Notes are to be issued: XXXX & CO
Taxpayer I.D. Number for First Penn-Pacific: 00-0000000
I-22
PRINCIPAL AMOUNT OF
NAME AND ADDRESS OF PURCHASER NOTES TO BE PURCHASED
SONS OF NORWAY $500,000
c/o Lincoln Investment Management, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Investments/Private Placements
Facsimile: (000) 000-0000 Private Placements
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "X.X.
Xxxxxx Company, 6.60% Senior Notes due 2010, PPN 359694 C# 1, principal,
interest or premium") to:
U.S. Bank Trust National Association
Minneapolis, MN
ABA #091 0000 22
A/C: 180121167365
BNF: U.S. Bank Institutional Financial Services
A/C: 47300020
OBI: Attention Sons of Norway 12601910
Notices
All notices and communications, including notices with respect to payments and
written confirmation of each such payment, to be addressed as first provided
above with duplicate notice with respect to payments to:
U.S. Bank National Association
000 X. 0xx Xxxxxx
X.X. Xxx 00000
Xx. Xxxx, XX 00000-0000
Attention: Xx. Xxxxx Xxxxxxx (000) 000-0000
Mail Code: SPEN0502
Name of Nominee in which Notes are to be issued: VAR & CO
TAXPAYER I.D. NUMBER: 00-0000000
I-23
PRINCIPAL AMOUNT OF
NAME AND ADDRESS OF PURCHASER NOTES TO BE PURCHASED
KNIGHTS OF COLUMBUS $10,000,000
Xxx Xxxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxxx 00000-0000
Attention: Investment Department
Telecopier Number: (000) 000-0000
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "X.X.
Xxxxxx Company, 6.60% Senior Notes due 2010, PPN 359694 C# 1, principal,
interest or premium") to:
Bank of New York (ABA #021-000-018)
Xxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
for credit to: Knights of Columbus
General Account #8900300825
Notices
All notices and communications to be addressed as first provided above, except
notices with respect to payments and written confirmation of each such payment,
to be addressed:
Knights of Columbus
P. O. Xxx 0000
Xxx Xxxxx, Xxxxxxxxxxx 00000-0000
Attention: Accounting Department
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
I-24
PRINCIPAL AMOUNT OF
NAME AND ADDRESS OF PURCHASER NOTES TO BE PURCHASED
AMERICAN FAMILY LIFE INSURANCE $5,000,000
COMPANY
0000 Xxxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxxx 00000-0000
Attention: Investment Division - Private Placements
Telecopier Number: (000) 000-0000
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "X.X.
Xxxxxx Company, 6.60% Senior Notes due 2010, PPN 359694 C# 1, principal,
interest or premium") to:
Firstar Bank Milwaukee, N.A.
Account of Firstar Trust Company
(ABA #075-000-022)
for credit to Account Number 000 000 000
For further credit to Trust Account Number 000018012500 for
AFLIC-Traditional Portfolio
Attention: Accounting Department
Notices
All notices and communications, including notices with respect to payments and
written confirmation of each such payment as well as quarterly and annual
financial statements, to be addressed as first provided above.
Name of Nominee in which Notes are to be issued: BAND & CO
Taxpayer I.D. Number: 00-0000000
I-25
PRINCIPAL AMOUNT OF
NAME AND ADDRESS OF PURCHASER NOTES TO BE PURCHASED
LUTHERAN BROTHERHOOD $7,000,000
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Investment Division
Payments
All payments of principal, interest and premium on the account of the Notes
shall be made by bank wire transfer (in immediately available funds) to:
Norwest Bank Minnesota, N.A.
ABA #000000000
For Credit to Trust Clearing Account #00-00-000
Attention: Xxxxx Xxxxxxxx
For credit to: Lutheran Brotherhood
Account Number 00000000
All payments must include the following information:
A/C Lutheran Brotherhood
Account No.: 00000000
Security Description
PPN Number
Reference Purpose of Payment
Interest and/or Principal Breakdown
Notices
All notices and communications to be addressed as first provided above, except
notices with respect to payments and written confirmation of each such payment,
to be addressed:
Lutheran Brotherhood
000 Xxxxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Investment Accounting/Trading Administrator
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
I-26
LIENS SECURING FUNDED DEBT
(INCLUDING CAPITALIZED LEASES)
AS OF FEBRUARY 28, 1998
PRINCIPAL AMOUNT
OF INDEBTEDNESS
OBLIGOR SUBJECT OF LIEN SECURED
X.X. Xxxxxx, Costa Rica Machinery and Equipment $40,771
Schedule II
(to Note Agreement)
X.X. XXXXXX COMPANY
6.60% Senior Note
Due June 2, 2010
PPN: 359694 C# 1
No. R-
______________, 19____
$
X.X. Xxxxxx Company, a Minnesota corporation (the "Company"), for value
received, hereby promises to pay to
or registered assigns,
on the second day of June, 2010
the principal amount of
DOLLARS ($ )
and to pay interest (computed on the basis of a 360-day year of twelve 30-day
months) on the principal amount from time to time remaining unpaid hereon at the
rate of 6.60% per annum from the date hereof until maturity, payable
semiannually on the second day of each June and December in each year commencing
December 2, 1998, and at maturity. The Company agrees to pay interest on
overdue principal (including any overdue optional prepayment of principal) and
premium, if any, and (to the extent legally enforceable) on any overdue
installment of interest, at the Overdue Rate after maturity, whether by
acceleration or otherwise, until paid. Both the principal hereof and interest
hereon are payable at the principal office of the Company in St. Xxxx, Minnesota
in coin or currency of the United States of America which at the time of payment
shall be legal tender for the payment of public and private debts.
This Note is one of the 6.60% Senior Notes due June 2, 2010 (the "Notes")
of the Company in the aggregate principal amount of $125,000,000 issued or to be
issued under and pursuant to the terms and provisions of separate and several
Note Agreements each dated as of June 2, 1998, entered into by the Company with
the original purchasers therein referred to and this Note and the holder hereof
are entitled equally and ratably with the holders of all other Notes outstanding
under the Note Agreements, to all the benefits, security and obligations
provided for thereby or referred to therein, to which Note Agreements reference
is hereby made for the statement thereof.
This Note and the other Notes outstanding under the Note Agreements may be
declared due prior to their expressed maturity dates, all in the events, on the
terms and in the manner and amounts as provided in the Note Agreements.
The Notes are not subject to prepayment or redemption at the option of the
Company prior to their expressed maturity dates except on the terms and
conditions and in the amounts and with the premium, if any, set forth in the
Note Agreements.
EXHIBIT A
(to Note Agreement)
This Note is registered on the books of the Company and is transferable
only by surrender thereof at the principal office of the Company duly endorsed
or accompanied by a written instrument of transfer duly executed by the
registered holder of this Note or its attorney duly authorized in writing.
Payment of or on account of principal, premium, if any, and interest on this
Note shall be made only to or upon the order in writing of the registered
holder.
X.X. Xxxxxx Company
By
Its
A-2
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Purchasers as follows:
1. Subsidiaries. Annex A attached hereto states the name of each of the
Company's Subsidiaries incorporated under the laws of the United States or a
jurisdiction thereof ("Domestic Subsidiaries") and Significant Subsidiaries
organized under the laws of a jurisdiction outside the United States
("Significant Foreign Subsidiaries"), its jurisdiction of incorporation and the
percentage of its Voting Stock owned by the Company and/or its Significant
Subsidiaries. The Company, each Domestic Subsidiary and each Significant
Foreign Subsidiary has good title to all of the shares it purports to own of the
stock of each Domestic Subsidiary and Significant Foreign Subsidiary, free and
clear in each case of any lien. All such shares have been duly issued and are
fully paid and non-assessable.
2. Corporate Organization and Authority. The Company and each
Significant Subsidiary,
(a) is a corporation duly organized, validly existing and in good
standing (or its equivalent) under the laws of its jurisdiction of
incorporation;
(b) has all requisite power and authority and all necessary licenses
and permits to own and operate its properties and to carry on its business
as now conducted and as presently proposed to be conducted, except to the
extent the failure to have such power and authority and such licenses or
permits would not individually or in the aggregate reasonably be expected
to have a Material Adverse Effect; and
(c) is duly licensed or qualified and is in good standing as a
foreign corporation in each jurisdiction wherein the nature of the business
transacted by it or the nature of the property owned or leased by it makes
such licensing or qualification necessary, other than those jurisdictions
as to which the failure to have such license or be so qualified would not
individually or in the aggregate reasonably be expected to have a Material
Adverse Effect.
3. Business and Property. The Private Placement Memorandum dated May,
1998 (the "Memorandum") prepared by Chase Securities, Inc. and X.X. Xxxxxx
Securities, Inc. generally sets forth the business conducted by the Company and
its Subsidiaries and the principal properties of the Company and its
Subsidiaries.
4. Financial Statements. (a) The consolidated balance sheets of the
Company and its consolidated Subsidiaries as of November 30 in each of the years
1993 to 1997, both inclusive, and the statements of earnings, shareholders'
equity and changes in financial position or cash flows for the fiscal years
ended on said dates accompanied by a report thereon containing an opinion
unqualified as to scope limitations imposed by the Company and otherwise without
qualification except as therein noted, by Price Waterhouse, have been prepared
in accordance with GAAP consistently applied except as therein noted, are
correct and complete and present fairly the financial position of the
EXHIBIT B
(to Note Agreement)
Company and its Subsidiaries as of such dates and the results of their
operations and changes in their financial position or cash flows for such
periods. The unaudited consolidated balance sheets of the Company and its
consolidated Subsidiaries as of February 28, 1998, and the unaudited statements
of income and retained earnings and cash flows for the three-month period ended
on said date prepared by the Company have been prepared in accordance with GAAP
consistently applied, are correct and complete and present fairly the financial
position of the Company and its consolidated Subsidiaries as of said date and
the results of their operations and changes in their financial position or cash
flows for such period.
(b) Since November 29, 1997, there has been no change in the condition,
financial or otherwise, of the Company and its consolidated Subsidiaries as
shown on the consolidated balance sheet as of such date except changes in the
ordinary course of business, none of which individually or in the aggregate has
been materially adverse to the Company and its Subsidiaries taken as a whole.
5. Indebtedness. Annex B attached hereto correctly describes all Current
Debt, Funded Debt and Capitalized Leases of the Company and its Significant
Subsidiaries outstanding on February 28, 1998.
6. Full Disclosure. Neither the financial statements referred to in
paragraph 4 nor the Agreements, the Memorandum or any other written statement
identified in Annex C hereto and furnished by the Company to you in connection
with the negotiation of the sale of the Notes, contains any untrue statement of
a material fact or omits a material fact necessary to make the statements
contained therein or herein not misleading. There is no fact peculiar to the
Company or its Subsidiaries which the Company has not disclosed to you in
writing which has a Material Adverse Effect nor, so far as the Company can now
foresee, could reasonably be expected to have a Material Adverse Effect.
7. Pending Litigation. There are no proceedings pending or, to the
knowledge of the Company threatened, against or affecting the Company, any
Domestic Subsidiary or any Significant Foreign Subsidiary in any court or before
any governmental authority or arbitration board or tribunal which individually
or in the aggregate could reasonably be expected to have a Material Adverse
Effect. Neither the Company, any Domestic Subsidiary nor, to the best of the
Company's knowledge, any Significant Foreign Subsidiary is in default with
respect to any order of any court or governmental authority or arbitration board
or tribunal.
8. Title to Property; Leases. The Company and its Subsidiaries have good
and sufficient title to their respective Material properties, including all such
properties reflected in the most recent audited balance sheet referred to in
paragraph 4 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 the Agreements,
except for those defects in title and liens that, individually or in the
aggregate, would not have a Material Adverse Effect. All Material leases are
valid and subsisting and are in full force and effect in all material respects.
9. Licenses, Permits, etc. The Company and its Subsidiaries own or
possess all licenses, permits, franchises, authorizations, patents, copyrights,
service marks,
B-2
trademarks and trade names, or rights thereto, that are Material, without known
conflict with the rights of others, except for those conflicts that,
individually or in the aggregate, would not have a Material Adverse Effect.
10. Sale is Legal and Authorized. The sale of the Notes and compliance
by the Company with all of the provisions of the Agreements and the Notes--
(a) are within the corporate powers of the Company;
(b) have been duly authorized by proper corporate action on the part
of the Company (no action by the shareholders of the Company being required
by law, by the Articles of Incorporation or By-laws of the Company or
otherwise), executed and delivered by the Company and the Agreements and
the Notes constitute the legal, valid and binding obligations, contracts
and agreements of the Company enforceable in accordance with their
respective terms; and
(c) will not violate any provisions of any law or any order of any
court or governmental authority or agency applicable to the Company and
will not conflict with or result in any breach of any of the terms,
conditions or provisions of, or constitute a default under the Articles of
Incorporation or By-laws of the Company or any indenture or other agreement
or instrument to which the Company is a party or by which it is bound or
result in the imposition of any liens or encumbrances on any property of
the Company.
11. No Defaults. No Default or Event of Default as defined in the
Agreements has occurred and is continuing. Neither the Company nor any
Significant Subsidiary is in default in the payment of principal or interest on
any Indebtedness for borrowed money and is not in default under any instrument
or instruments or agreements under and subject to which any Indebtedness for
borrowed money has been issued and no event has occurred and is continuing under
the provisions of any such instrument or agreement which with the lapse of time
or the giving of notice, or both, would constitute an event of default
thereunder.
12. Governmental Consent. No approval, consent or withholding of
objection on the part of any regulatory body, state, Federal or local, is
necessary in connection with the execution and delivery by the Company of the
Agreements or the Notes or compliance by the Company with any of the provisions
of the Agreements or the Notes.
13. Taxes. The Company and its Subsidiaries have filed all income 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 payable by them, to the extent such taxes and assessments have
become due and payable and before they have become delinquent, except for any
taxes and assessments (i) the amount of which is not individually or in the
aggregate Material or (ii) 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 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 November 30, 1991.
B-3
14. Use of Proceeds. The net proceeds from the sale of the Notes will
be used to refinance existing Indebtedness and for other general corporate
purposes. None of the transactions contemplated in the Agreements (including,
without limitation thereof, the use of proceeds from the issuance of the Notes)
will violate or result in a violation of Section 7 of the Exchange Act or any
regulation issued pursuant thereto, including, without limitation, Regulations
U, T and X of the Board of Governors of the Federal Reserve System, 12 C.F.R.,
Chapter II. None of the proceeds from the sale of the Notes will be used to
purchase, or refinance any borrowing, the proceeds of which were used to
purchase any "margin stock" within the meaning of the Exchange Act. Margin
stock does not constitute more than 1% 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 1% of the value of such
assets.
15. Private Offering. Neither the Company, directly or indirectly, nor
any agent on its behalf has offered or will offer the Notes or any similar
Security or has solicited or will solicit an offer to acquire the Notes or any
similar Security from or has otherwise approached or negotiated or will approach
or negotiate in respect of the Notes or any similar Security with any Person
other than you and not more than 50 other institutional investors, each of whom
was offered a portion of the Notes at private sale for investment. Neither the
Company, directly or indirectly, nor any agent on its behalf has offered or will
offer the Notes or any similar Security or has solicited or will solicit an
offer to acquire the Notes or any similar Security from any Person so as to
bring the issuance and sale of the Notes within the provisions of Section 5 of
the Securities Act.
16. 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 would reasonably be
expected to result in the incurrence of any such liability by the Company or any
ERISA Affiliate, or in the imposition of any lien on any of the rights,
properties or assets of the Company or any ERISA Affiliate, in either case
pursuant to Title I or IV of ERISA or to such penalty or excise tax provisions
or to Section 401(a)(29) or 412 of the Code, other than such liabilities or
liens as would not be individually or in the aggregate Material.
(b) The present value of the aggregate benefit liabilities under each of
the Plans (other than Multiemployer Plans), determined as of the end of such
Plan's most recently ended plan year on the basis of the actuarial assumptions
specified for funding purposes in such Plan's most recent actuarial valuation
report, did not exceed the aggregate current value of the assets of such Plan
allocable to such benefit liabilities. The term "benefit liabilities" has the
meaning specified in Section 4001 of ERISA and the terms "current value" and
"present value" have the meaning specified in Section 3 of ERISA.
(c) The Company and 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.
B-4
(d) The expected postretirement benefit obligation (determined as of the
last day of the Company's most recently ended fiscal year in accordance with
Financial Accounting Standards Board Statement No. 106, without regard to
liabilities attributable to continuation coverage mandated by section 4980B of
the Code) of the Company and its Subsidiaries is Material, as described in the
Form 10-K of the Company for the fiscal year ending November 29, 1997.
(e) The execution and delivery of the Agreements 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 paragraph (e) is
made in reliance upon and subject to the accuracy of your representation in
Section 3.2(b) of the Agreements.
17. Compliance with Law. Neither the Company nor any Subsidiary (a) is
in violation of any law, ordinance, franchise, governmental rule or regulation
to which it is subject; or (b) has failed to obtain any license, permit,
franchise or other governmental authorization necessary to the ownership of its
property or to the conduct of its business, which violation or failure to obtain
individually or in the aggregate could reasonably be expected to have a Material
Adverse Effect.
18. Compliance with Environmental Laws. None of the Company or any
Domestic Subsidiary or any Significant Foreign Subsidiary is in violation of any
applicable Federal, state, or local laws, statutes, rules, regulations or
ordinances relating to public health, safety or the environment, including,
without limitation, relating to releases, discharges, emissions or disposals to
air, water, land or ground water, to the withdrawal or use of ground water, to
the use, handling or disposal of polychlorinated biphenyls (PCB's), asbestos or
urea formaldehyde, to the treatment, storage, disposal or management of
hazardous substances (including, without limitation, petroleum, its derivatives,
by-products or other hydrocarbons), to exposure to toxic, hazardous or other
controlled, prohibited or regulated substances, which violation or violations,
individually or in the aggregate, could reasonably be expected to have a
material adverse effect on the business, operations, affairs, financial
condition or properties of the Company and its Subsidiaries, taken as a whole.
The Company does not know of any liability or class of liabilities of the
Company or any Subsidiary under the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended by the Superfund Amendments
and Reauthorization Act of 1986 (42 U.S.C. Section 9601 et seq.) or the Resource
Conservation and Recovery Act of 1976, as amended (42 U.S.C. Section 6901 et
seq.), which liability or class of liabilities, individually or in the
aggregate, could reasonably be expected to have a material adverse effect on the
business, operations, affairs, financial condition or properties of the Company
and its Subsidiaries, taken as a whole.
B-5
DOMESTIC SUBSIDIARIES AND SIGNIFICANT
FOREIGN SUBSIDIARIES OF THE COMPANY
1. DOMESTIC SUBSIDIARIES:
PERCENTAGE OF VOTING
STOCK OWNED BY COMPANY
JURISDICTION OF AND EACH OTHER DOMESTIC
NAME OF SUBSIDIARY INCORPORATION OR SIGNIFICANT SUBSIDIARY
ChemEquity, Inc. U.S. (Minnesota) 100.0%
F.A.I. Trading Company U.S. (Delaware) 100.0%
Fiber-Resin Corp. U.S. (Minnesota) 100.0%
Xxxxxx Products Corporation U.S. (Minnesota) 100.0%
X.X. Xxxxxx Automotive Company U.S. (Kansas) 100.0%
X.X. Xxxxxx Company Puerto Rico U.S. (Delaware) 100.0%
X.X. Xxxxxx International, Inc. U.S. (Delaware) 100.0%
X.X. Xxxxxx Licensing & Financing, U.S. (Delaware) 100.0%
Inc.
TEC Incorporated U.S. (Minnesota) 100.0%
Linear Products, Inc. U.S. (Washington) 100.0%
EFTEC North America, LLC U.S. (Michigan) 70%
2. SIGNIFICANT FOREIGN SUBSIDIARIES:
PERCENTAGE OF VOTING STOCK
JURISDICTION OF OWNED BY COMPANY AND EACH
NAME OF SUBSIDIARY INCORPORATION OTHER SIGNIFICANT SUBSIDIARY
Kativo Chemical Industries, S.A. Panama 99.70%
ANNEX A
(to Representations and Warranties)
DESCRIPTION OF DEBT AND CAPITALIZED LEASES
1. Current Debt of the Company and its Significant Subsidiaries outstanding on
February 28, 1998 is as follows:
Kativo Chemical Industries, S.A. $13,380,521
X.X. Xxxxxx Co. $30,306,395
2. Funded Debt of the Company and its Significant Subsidiaries outstanding on
February 28, 1998 is as follows:
X.X. Xxxxxx Co. $207,349,680
Kativo Chemical Industries, S.A. $ 5,978,679
3. Capitalized Leases of the Company and its Significant Subsidiaries
outstanding on February 28, 1998 are as follows:
None
ANNEX B
(to Representations and Warranties)
DISCLOSURE SCHEDULE
None
ANNEX C
(to Representations and Warranties)
DESCRIPTION OF SPECIAL COUNSEL'S CLOSING OPINIONS
The respective closing opinions of Xxxxxxx and Xxxxxx, special counsel to
the Purchasers, called for by SECTION 4.2 of the Note Agreements, shall be dated
the Closing Date and addressed to the Purchasers, shall be satisfactory in form
and substance to the Purchasers on the Closing Date and shall be to the effect
that:
(1) The Company is a corporation, validly existing and in good
standing under the laws of the State of Minnesota, has corporate power and
corporate authority to execute and deliver the Agreements and to issue the
Notes.
(2) The Note Agreements have been duly authorized by all necessary
corporate action on the part of the Company, have been duly executed and
delivered by the Company and constitute the legal, valid and binding
contracts of the Company enforceable in accordance with their terms,
subject to bankruptcy, insolvency, fraudulent conveyance and similar laws
affecting creditors' rights generally, and general principles of equity
(regardless of whether the application of such principles is considered in
a proceeding in equity or at law).
(3) The Notes have been duly authorized by all necessary corporate
action on the part of the Company, and the Notes being delivered on the
date hereof have been duly executed and delivered by the Company and
constitute the legal, valid and binding obligations of the Company
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent conveyance and similar laws affecting creditors'
rights generally, and general principles of equity (regardless of whether
the application of such principles is considered in a proceeding in equity
or at law).
(4) The issuance, sale and delivery of the Notes under the
circumstances contemplated by the Note Agreements do not, under existing
law, require the registration of the Notes under the Securities Act or the
qualification of an indenture under the Trust Indenture Act of 1939, as
amended.
The opinions of Xxxxxxx and Xxxxxx shall also state that the opinions of
Xxxxxxx X. Xxxxx, Vice President and General Counsel to the Company, are
satisfactory in scope and form to Xxxxxxx and Xxxxxx and that, in their opinion,
the Purchasers are justified in relying thereon.
In rendering the opinion set forth in paragraph 1 above, Xxxxxxx and Xxxxxx
may rely, as to matters referred to in paragraph 1, solely upon an examination
of the Articles of Incorporation certified by, and a certificate of good
standing of the Company from, the Secretary of State of the State of Minnesota,
the By-laws of the Company and the general business corporation law of the State
of Minnesota. The opinion of Xxxxxxx and Xxxxxx is limited to the laws of the
State of Illinois, the general business corporation law of the State of
Minnesota and the Federal laws of the United States.
With respect to matters of fact upon which such opinion is based, Xxxxxxx
and Xxxxxx may rely on appropriate certificates of public officials and officers
of the Company and upon representations of the Company and the Purchasers
delivered in connection with the issuance and sale of the Notes.
Exhibit C
(to Note Agreement)
DESCRIPTION OF CLOSING OPINION OF COUNSEL TO THE COMPANY TO BE
DELIVERED ON THE CLOSING DATE
The closing opinion of Xxxxxxx X. Xxxxx, Vice President and General Counsel
to the Company to be delivered on the Closing Date, which is called for by
SECTION 4.2 of the Note Agreements, shall be dated the Closing Date and
addressed to the Purchasers, and shall be satisfactory in scope and form to the
Purchasers and shall be to the effect that:
(1) The Company is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Minnesota and has the
corporate power and the corporate authority to execute and perform the Note
Agreements and to issue the Notes and has the corporate power and the
corporate authority to conduct the activities in which it is now engaged,
and is duly licensed or qualified and is in good standing as a foreign
corporation in each jurisdiction in which the character of the properties
owned or leased by it or the nature of the business transacted by it makes
such licensing or qualification necessary except such jurisdictions as to
which the failure to be so licensed or qualified would not have a Material
Adverse Effect.
(2) Each Significant Subsidiary is a corporation duly incorporated,
validly existing and in good standing under the laws of its jurisdiction of
incorporation and is duly licensed or qualified and is in good standing as
a foreign corporation in each jurisdiction wherein the nature of the
business transacted by it or the character of the properties owned or
leased by it makes such licensing or qualification necessary except such
jurisdictions as to which the failure to be so licensed or qualified would
not have a Material Adverse Effect.
(3) The Company and each Significant Subsidiary has marketable title
to the capital stock of each Significant Subsidiary it purports to own and
all such shares have been duly issued and are fully paid and non-
assessable.
(4) The Note Agreements have been duly authorized by all necessary
corporate action on the part of the Company, have been duly executed and
delivered by the Company and constitute the legal, valid and binding
contracts of the Company enforceable in accordance with their terms,
subject to bankruptcy, insolvency, fraudulent conveyance and similar laws
affecting creditors' rights generally, and general principles of equity
(regardless of whether the application of such principles is considered in
a proceeding in equity or at law).
(5) The Notes have been duly authorized by all necessary corporate
action on the part of the Company, and the Notes being delivered on the
date hereof have been duly executed and delivered by the Company and
constitute the legal, valid and binding obligations of the Company
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent conveyance and similar laws affecting creditors'
rights generally, and general principles of equity (regardless of whether
the application of such principles is considered in a proceeding in equity
or at law).
(6) The issuance and sale of the Notes being delivered on the date
hereof and the execution, delivery and performance by the Company of the
Note Agreements do not conflict with or result in any breach of any of the
provisions of or constitute a default under or result in the creation or
imposition of any lien or
Exhibit D
(to Note Agreement)
encumbrance upon any of the property of the Company pursuant to the
provisions of the Articles of Incorporation or By laws of the Company or
any agreement or other instrument known to such counsel to which the
Company is a party or by which the Company may be bound.
(7) No approval, consent or withholding of objection on the part of,
or filing, registration or qualification with, any governmental body,
Federal, state or local, is necessary in connection with the execution and
delivery of the Note Agreements or the Notes.
(8) (a) There are, to the knowledge of such counsel, no actions,
suits, investigations or proceedings (whether or not purportedly on behalf
of the Company or a Subsidiary) pending or threatened against or affecting
the Company or any Subsidiary, or the business or properties of the Company
or any Subsidiary, in any court or before or by any governmental
department, commission, board, agency or instrumentality, domestic or
foreign, or any arbitrator, which could reasonably be expected to result in
any Material Adverse Effect; and (b) neither the Company nor any Subsidiary
is, to the knowledge of such counsel, in default with respect to any order,
writ, injunction or decree of any court or arbitrator, or any order or
demand of any governmental agency.
(9) The issuance, sale and delivery of the Notes under the
circumstances contemplated by the Note Agreements do not under existing law
require the registration of the Notes under the Securities Act or the
qualification of an indenture in respect thereof under the Trust Indenture
Act of 1939, as amended.
Such opinion of Xxxxxxx X. Xxxxx, Vice President and General Counsel of the
Company, shall cover such other matters relating to the sale of the Notes as the
Purchasers may reasonably request. With respect to matters of fact on which
such opinion is based, such counsel shall be entitled to rely on appropriate
certificates of public officials and officers of the Company. Such opinion of
such counsel may be limited to the laws of the State of Minnesota and the
Federal laws of the United States.
D-2
