The Hain Celestial Group, Inc. $150,000,000 Senior Notes due May 2, 2016 Note Purchase Agreement Dated as of May 2, 2006
Exhibit
10.2
Execution
Version
The
Hain
Celestial Group, Inc.
$150,000,000
Senior Notes
due
May 2, 2016
________________
Note
Purchase Agreement
________________
Dated
as
of May 2, 2006
Table
of Contents
|
SECTION
|
HEADING
|
PAGE
|
|
SECTION 1.
|
AUTHORIZATION
OF NOTES
|
1
|
|
Section 1.1.
|
Description
of Notes
|
1
|
|
Section 1.2.
|
Interest
Rate
|
1
|
|
SECTION 2.
|
SALE
AND PURCHASE OF NOTES
|
2
|
|
Section 2.1.
|
Notes
|
2
|
|
Section
2.2.
|
Subsidiary
Guaranty
|
2
|
|
SECTION 3.
|
CLOSING
|
3
|
|
SECTION 4.
|
CONDITIONS
TO CLOSING
|
3
|
|
Section
4.1.
|
Representations
and Warranties
|
3
|
|
Section 4.2.
|
Performance;
No Default
|
3
|
|
Section 4.3.
|
Compliance
Certificates
|
4
|
|
Section 4.4.
|
Opinions
of Counsel
|
4
|
|
Section 4.5.
|
Purchase
Permitted by Applicable Law, Etc
|
4
|
|
Section 4.6.
|
Sale
of Other Notes
|
5
|
|
Section 4.7.
|
Payment
of Special Counsel Fees
|
5
|
|
Section 4.8.
|
Private
Placement Number
|
5
|
|
Section 4.9.
|
Changes
in Corporate Structure
|
5
|
|
Section
4.10.
|
Subsidiary
Guaranty
|
5
|
|
Section 4.11.
|
Funding
Instructions
|
5
|
|
Section 4.12.
|
Proceedings
and Documents
|
5
|
|
SECTION 5.
|
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
|
5
|
|
Section 5.1.
|
Organization;
Power and Authority
|
5
|
|
Section 5.2.
|
Authorization,
Etc
|
6
|
|
Section 5.3.
|
Disclosure
|
6
|
|
Section 5.4.
|
Organization
and Ownership of Shares of Subsidiaries; Affiliates
|
6
|
|
Section 5.5.
|
Financial
Statements; Material Liabilities
|
7
|
|
Section 5.6.
|
Compliance
with Laws, Other Instruments, Etc
|
7
|
|
Section 5.7.
|
Governmental
Authorizations, Etc
|
7
|
|
Section 5.8.
|
Litigation;
Observance of Agreements, Statutes and Orders
|
8
|
|
Section 5.9.
|
Taxes
|
8
|
|
Section 5.10.
|
Title
to Property; Leases
|
8
|
|
Section 5.11.
|
Licenses,
Permits, Etc
|
9
|
|
Section 5.12.
|
Compliance
with ERISA
|
9
|
|
Section 5.13.
|
Private
Offering by the Company
|
10
|
-i-
|
Section 5.14.
|
Use
of Proceeds; Margin Regulations
|
10
|
|
Section 5.15.
|
Existing
Debt; Future Liens
|
10
|
|
Section 5.16.
|
Foreign
Assets Control Regulations, Etc
|
11
|
|
Section 5.17.
|
Status
under Certain Statutes
|
11
|
|
Section 5.18.
|
Environmental
Matters
|
11
|
|
Section 5.19.
|
Notes
Rank Pari Passu
|
12
|
|
SECTION 6.
|
REPRESENTATIONS
OF THE PURCHASER
|
12
|
|
Section 6.1.
|
Purchase
for Investment
|
12
|
|
Section 6.2.
|
Accredited
Investor
|
12
|
|
Section 6.3.
|
Source
of Funds
|
12
|
|
SECTION 7.
|
INFORMATION
AS TO COMPANY
|
14
|
|
Section 7.1.
|
Financial
and Business Information
|
14
|
|
Section 7.2.
|
Officer’s
Certificate
|
17
|
|
Section 7.3.
|
Visitation
|
17
|
|
SECTION 8.
|
PAYMENT
OF THE NOTES
|
18
|
|
Section 8.1.
|
Required
Prepayments
|
18
|
|
Section 8.2.
|
Optional
Prepayments with Make-Whole Amount
|
18
|
|
Section 8.3.
|
Allocation
of Partial Prepayments
|
18
|
|
Section 8.4.
|
Rejectable
Offer of Prepayment Following Certain Asset Sales
|
18
|
|
Section 8.5.
|
Maturity;
Surrender, Etc.
|
19
|
|
Section 8.6.
|
Purchase
of Notes
|
19
|
|
Section 8.7.
|
Make-Whole
Amount for the Notes
|
19
|
|
SECTION 9.
|
AFFIRMATIVE
COVENANTS
|
20
|
|
Section 9.1.
|
Compliance
with Law
|
20
|
|
Section 9.2.
|
Insurance
|
21
|
|
Section 9.3.
|
Maintenance
of Properties
|
21
|
|
Section 9.4.
|
Payment
of Taxes and Claims
|
21
|
|
Section 9.5.
|
Corporate
Existence, Etc
|
21
|
|
Section
9.6.
|
Designation
of Subsidiaries
|
21
|
|
Section 9.7.
|
Notes
to Rank Pari Passu
|
22
|
|
Section 9.8.
|
Additional
Subsidiary Guarantors
|
22
|
|
Section 9.9.
|
Books
and Records
|
23
|
|
SECTION 10.
|
NEGATIVE
COVENANTS
|
23
|
|
Section 10.1.
|
Consolidated
Debt to Consolidated EBITDA
|
23
|
|
Section
10.2.
|
Priority
Debt
|
23
|
|
Section 10.3.
|
Limitation
on Liens
|
23
|
|
Section 10.4.
|
Sales
of Asset
|
25
|
|
Section 10.5.
|
Merger
and Consolidation
|
26
|
-ii-
|
Section 10.6.
|
Transactions
with Affiliates
|
27
|
|
Section 10.7.
|
Terrorism
Sanctions Regulations
|
27
|
|
Section 10.8.
|
Line
of Business
|
27
|
|
SECTION 11.
|
EVENTS
OF DEFAULT
|
30
|
|
SECTION 12.
|
REMEDIES
ON DEFAULT, ETC
|
30
|
|
Section 12.1.
|
Acceleration
|
30
|
|
Section 12.2.
|
Other
Remedies
|
30
|
|
Section 12.3.
|
Rescission
|
31
|
|
Section 12.4.
|
No
Waivers or Election of Remedies, Expenses, Etc
|
31
|
|
SECTION 13.
|
REGISTRATION;
EXCHANGE; SUBSTITUTION OF NOTES
|
31
|
|
Section 13.1.
|
Registration
of Notes
|
31
|
|
Section 13.2.
|
Transfer
and Exchange of Notes
|
32
|
|
Section
13.3.
|
Transfer
Restrictions
|
32
|
|
Section 13.4.
|
Replacement
of Notes
|
32
|
|
SECTION 14.
|
PAYMENTS
ON NOTES
|
33
|
|
Section 14.1.
|
Place
of Payment
|
33
|
|
Section 14.2.
|
Home
Office Payment
|
33
|
|
SECTION 15.
|
EXPENSES,
ETC
|
33
|
|
Section 15.1.
|
Transaction
Expenses
|
33
|
|
Section 15.2.
|
Survival
|
34
|
|
SECTION 16.
|
SURVIVAL
OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT
|
34
|
|
SECTION 17.
|
AMENDMENT
AND WAIVER
|
34
|
|
Section 17.1.
|
Requirements
|
34
|
|
Section 17.2.
|
Solicitation
of Holders of Notes
|
34
|
|
Section 17.3.
|
Binding
Effect, Etc
|
35
|
|
Section 17.4.
|
Notes
Held by Company, Etc
|
35
|
|
SECTION 18.
|
NOTICES
|
35
|
|
SECTION 19.
|
REPRODUCTION
OF DOCUMENTS
|
36
|
|
SECTION 20.
|
CONFIDENTIAL
INFORMATION
|
37
|
|
SECTION 21.
|
SUBSTITUTION
OF PURCHASER
|
37
|
-iii-
|
SECTION 22.
|
MISCELLANEOUS
|
37
|
|
Section 22.1.
|
Successors
and Assigns
|
37
|
|
Section 22.2.
|
Payments
Due on Non-Business Days
|
38
|
|
Section 22.3.
|
Accounting
Terms
|
38
|
|
Section 22.4.
|
Severability
|
38
|
|
Section 22.5.
|
Construction
|
38
|
|
Section 22.6.
|
Counterparts
|
38
|
|
Section 22.7.
|
Governing
Law
|
38
|
|
Section 22.8.
|
Jurisdiction
and Process; Waiver of Jury Trial
|
39
|
-iv-
|
Schedule A
|
—
|
Information
Relating to Purchasers
|
|
Schedule B
|
—
|
Defined
Terms
|
|
Schedule 4.9
|
—
|
Changes
in Corporate Structure
|
|
Schedule 5.4
|
—
|
Subsidiaries
of the Company, Ownership of Subsidiary Stock,
Affiliates
|
|
Schedule 5.5
|
—
|
Financial
Statements
|
|
Schedule 5.11
|
—
|
Licenses,
Permits, Etc.
|
|
Schedule 5.15
|
—
|
Existing
Debt
|
|
Schedule 10.3
|
—
|
Existing
Liens
|
|
Exhibit 1
|
—
|
Form
of Senior Notes, due May 2, 2016
|
|
Exhibit 2.2
|
—
|
Form
of Subsidiary Guaranty
|
|
Exhibit 4.4(a)
|
—
|
Form
of Opinion of Associate General Counsel to the Company
|
|
Exhibit 4.4(b)
|
—
|
Form
of Opinion of Special Counsel to the Company
|
|
Exhibit 4.4(c)
|
—
|
Form
of Opinion of Special Counsel to the Purchasers
|
|
Exhibit 10.5
|
—
|
Form
of Assumption Agreement
|
-v-
The
Hain Celestial Group, Inc.
00
Xxxxx Xxxxxxx Xxxx
Xxxxxxxx,
XX 00000
$150,000,000
Senior Notes
due
May 2, 2016
Dated
as
of
May 2,
2006
To
the
Purchasers listed in
the
attached Schedule A:
Ladies
and Gentlemen:
The
Hain
Celestial Group, Inc.,
a
Delaware corporation (the “Company”),
agrees
with the Purchasers listed in the attached Schedule A (the “Purchasers”)
to this
Note Purchase Agreement (this “Agreement”)
as
follows:
|
Section 1.
|
Authorization
of Notes.
|
Section 1.1.
Description
of Notes.
The
Company will authorize the issue and sale of the following Senior Notes:
|
Issue
|
Aggregate
Principal Amount
|
Interest
Rate
|
Maturity
Date
|
|
Senior
Notes
|
$150,000,000
|
5.98%
(6.23% in accordance with
Section 1.2(b)) |
May 2,
2016
|
The
Senior Notes described above are referred to as the “Notes”
(such
term shall also include any such notes issued in substitution therefor pursuant
to Section 13 of this Agreement). The Notes shall be substantially in the form
set out in Exhibit 1, with such changes therefrom, if any, as may be approved
by
the Purchasers and the Company. Certain capitalized terms used in this Agreement
are defined in Schedule B; references to a “Schedule” or an “Exhibit” are,
unless otherwise specified, to a Schedule or an Exhibit attached to this
Agreement.
Section 1.2.
Interest
Rate. (a) The
Notes
shall bear interest (computed on the basis of a 360-day year of twelve 30-day
months) on the unpaid principal thereof from the date of issuance at the
Applicable Interest Rate then in effect payable semi-annually in arrears on
the
2nd day of May and November and at maturity, commencing on November 2,
2006, until such principal
sum
shall
have become due and payable (whether at maturity, upon notice of prepayment
or
otherwise) and interest (so computed) on any overdue principal, interest or
Make-Whole Amount from the due date thereof (whether by acceleration or
otherwise) at the applicable Default Rate until paid.
(b)
If,
during a Transition Period, the Consolidated Debt to Consolidated EBITDA ratio
exceeds 3.5 to 1.00, as evidenced by an Officer’s Certificate delivered pursuant
to Section 7.2(a), the interest rate payable on the Notes shall be increased
by
0.25%, commencing on the first day of the first fiscal quarter following the
fiscal quarter in respect of which such Certificate was delivered and continuing
until the Company has provided an Officer’s Certificate pursuant to Section
7.2(a) demonstrating that, as of the end of the fiscal quarter in respect of
which such Certificate is delivered, the Consolidated Debt to Consolidated
EBITDA ratio is not more than 3.5 to 1.0. Following delivery of an
Officer’s Certificate demonstrating that the Consolidated Debt to Consolidated
EBITDA ratio did not exceed 3.5 to 1.0, the additional 0.25% interest shall
cease to accrue or be payable for any fiscal quarter subsequent to the fiscal
quarter in respect of which such Certificate is delivered.
|
Section 2.
|
Sale
and Purchase of Notes.
|
Section 2.1.
Notes.
Subject
to the terms and conditions of this Agreement, the Company will issue and sell
to each Purchaser and each Purchaser will purchase from the Company, at the
Closing provided for in Section 3, the Notes in the principal amount
specified opposite such Purchaser’s name in Schedule A at the purchase price of
100% of the principal amount thereof. The obligations of each Purchaser
hereunder are several and not joint obligations and each Purchaser shall have
no
obligation and no liability to any Person for the performance or nonperformance
by any other Purchaser hereunder.
Section
2.2. Subsidiary
Guaranty. (a) The
payment by the Company of all amounts due with respect to the Notes and the
performance by the Company of its obligations under this Agreement will be
absolutely and unconditionally guaranteed by the Subsidiary Guarantors pursuant
to the Subsidiary Guaranty Agreement dated as of even date herewith, which
shall
be substantially in the form of Exhibit 2.2 attached hereto, and otherwise
in
accordance with the provisions of Section 9.6 hereof (the “Subsidiary
Guaranty”).
(b) The
holders of the Notes agree to discharge and release any Subsidiary Guarantor
from the Subsidiary Guaranty upon the written request of the Company,
provided
that
(i) such Subsidiary Guarantor has been released and discharged (or will be
released and discharged concurrently with the release of such Subsidiary
Guarantor under the Subsidiary Guaranty) as an obligor and guarantor under
and
in respect of the Bank Credit Agreement and the Company so certifies to the
holders of the Notes in a certificate of a Responsible Officer, (ii) at the
time of such release and discharge, the Company shall deliver a certificate
of a
Responsible Officer to the holders of the Notes stating that no Default or
Event
of Default exists or will exist upon such release, and (iii) if any fee or
other form of consideration is given to any holder of Debt of the Company
expressly for the purpose of such release, holders of the Notes shall receive
equivalent consideration (a “Collateral
Release”).
-2-
|
Section 3.
|
Closing.
|
The
sale
and purchase of the Notes to be purchased by each Purchaser shall occur at
the
offices of Xxxxxxx and Xxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
at
10:00 a.m. Central time, at a closing (the “Closing
Date”)
on
May 2, 2006 or on such other Business Day thereafter on or prior to
May 31, 2006 as may be agreed upon by the Company and the Purchasers. On
the Closing Date, the Company will deliver to each Purchaser the Notes to be
purchased by such Purchaser in the form of a single Note (or such greater number
of Notes in denominations of at least $100,000 as such Purchaser may request)
dated the date of the Closing Date and registered in such Purchaser’s name (or
in the name of such Purchaser’s nominee), against delivery by such Purchaser to
the Company or its order of immediately available funds in the amount of the
purchase price therefor by wire transfer of immediately available funds for
the
account of the Company to Account Number 0000000000, at Bank of America,
Melville, New York, ABA Number 0000-0000-0, in the Account Name of “The Hain
Celestial Group, Inc.” If, on the Closing Date, the Company shall fail to tender
such Notes to any Purchaser as provided above in this Section 3, or any of
the conditions specified in Section 4 shall not have been fulfilled to any
Purchaser’s satisfaction, such Purchaser shall, at such Purchaser’s election, be
relieved of all further obligations under this Agreement, without thereby
waiving any rights such Purchaser may have by reason of such failure or such
nonfulfillment.
|
Section 4.
|
Conditions
to Closing.
|
Each
Purchaser’s obligation to purchase and pay for the Notes to be sold to such
Purchaser at the Closing is subject to the fulfillment to such Purchaser’s
satisfaction, prior to or at the Closing, of the following conditions applicable
to the Closing Date:
Section
4.1.Representations
and Warranties.
(a) Representations
and Warranties of the Company. The
representations and warranties of the Company in this Agreement shall be correct
when made and at the time of the Closing.
(b) Representations
and Warranties of the Subsidiary Guarantors. The
representations and warranties of the Subsidiary Guarantors in the Subsidiary
Guaranty shall be correct when made and at the time of the Closing.
Section 4.2.Performance;
No Default.
The
Company and each Subsidiary Guarantor shall have performed and complied with
all
agreements and conditions contained in this Agreement and the Subsidiary
Guaranty required to be performed or complied with by the Company and each
such
Subsidiary Guarantor prior to or at the Closing, and after giving effect to
the
issue and sale of the Notes (and the application of the proceeds thereof as
contemplated by Section 5.14), no Default or Event of Default shall have
occurred and be continuing. Neither the Company nor any Subsidiary shall have
entered into any transaction since the date of the Memorandum that would have
been prohibited by Section 10 hereof had such Sections applied since such
date.
-3-
Section 4.3.Compliance
Certificates.
(a)
Officer’s
Certificate of the Company.
The
Company shall have delivered to such Purchaser an Officer’s Certificate, dated
the Closing Date, certifying that the conditions specified in Sections 4.1,
4.2 and 4.9 have been fulfilled.
(b)
Secretary’s
Certificate of the Company.
The
Company shall have delivered to such Purchaser a certificate, dated the Closing
Date, certifying as to the resolutions attached thereto and other corporate
proceedings relating to the authorization, execution and delivery of the Notes
and this Agreement.
(c)
Officer’s
Certificate of the Subsidiary Guarantors. Each
Subsidiary Guarantor shall have delivered to such Purchaser an Officer’s
Certificate, dated the Closing Date, certifying that the conditions specified
in
Sections 4.1(b), 4.2 and 4.9 have been fulfilled.
(d)
Secretary’s
Certificate of the Subsidiary Guarantors. Each
Subsidiary Guarantor shall have delivered to such Purchaser a certificate,
dated
the Closing Date, certifying as to the resolutions attached thereto and other
corporate proceedings relating to the authorization, execution and delivery
of
the Subsidiary Guaranty.
Section 4.4.
Opinions
of Counsel. Such
Purchaser shall have received opinions in form and substance satisfactory to
such Purchaser, dated the Closing Date (a) from Xxxxxx X. Xxxxxxxxxx, Esq.,
Associate General Counsel of the Company, covering the matters set forth in
Exhibit 4.4(a) and covering such other matters incident to the transactions
contemplated hereby as such Purchaser or its counsel may reasonably request
(and
the Company hereby instructs its counsel to deliver such opinion to the
Purchasers), (b) from Xxxxxx Xxxxxx
& Xxxxxxx LLP,
special
counsel for the Company, covering the matters set forth in Exhibit 4.4(b)
and covering such other matters incident to the transactions contemplated hereby
as such Purchaser or its counsel may reasonably request (and the Company hereby
instructs its counsel to deliver such opinion to the Purchasers), and
(c) from Xxxxxxx and Xxxxxx LLP, the Purchasers’ special counsel in
connection with such transactions, substantially in the form set forth in
Exhibit 4.4(c) and covering such other matters incident to such
transactions as such Purchaser may reasonably request.
Section 4.5.
Purchase
Permitted by Applicable Law, Etc. On
the
date of the Closing such Purchaser’s purchase of Notes shall (a) be
permitted by the laws and regulations of each jurisdiction to which such
Purchaser is subject, without recourse to provisions (such as
section 1405(a)(8) of the New York Insurance Law) permitting limited
investments by insurance companies without restriction as to the character
of
the particular investment, (b) not violate any applicable law or regulation
(including, without limitation, Regulation T, U or X of the Board of
Governors of the Federal Reserve System) and (c) not subject such Purchaser
to any tax, penalty or liability under or pursuant to any applicable law or
regulation, which law or regulation was not in effect on the date hereof. If
requested by such Purchaser, such Purchaser shall have received an Officer’s
Certificate certifying as to such matters of fact as such Purchaser may
reasonably specify to enable such Purchaser to determine whether such purchase
is so permitted.
-4-
Section 4.6.
Sale
of Other Notes.
Contemporaneously with the Closing the Company shall sell to each other
Purchaser and each other Purchaser shall purchase the Notes to be purchased
by
it at the Closing as specified in Schedule A.
Section 4.7.
Payment
of Special Counsel Fees.
Without
limiting the provisions of Section 15.1, the Company shall have paid on or
before the Closing Date, the reasonable fees, reasonable charges and reasonable
disbursements of the Purchasers’ special counsel referred to in Section 4.4
to the extent reflected in a statement of such counsel rendered to the Company
at least one Business Day prior to the Closing Date.
Section 4.8.
Private
Placement Number. A
Private
Placement Number issued by Standard & Poor’s CUSIP Service Bureau (in
cooperation with the Securities Valuation Office of the National Association
of
Insurance Commissioners) shall have been obtained for the Notes.
Section 4.9.
Changes
in Corporate Structure. Neither
the Company nor any Subsidiary Guarantor shall have changed its jurisdiction
of
organization or, except as reflected in Schedule 4.9, been a party to any merger
or consolidation, or shall have succeeded to all or any substantial part of
the
liabilities of any other entity, at any time following the date of the most
recent financial statements referred to in Schedule 5.5.
Section
4.10. Subsidiary
Guaranty. The
Subsidiary Guaranty shall have been duly authorized, executed and delivered
by
each Subsidiary Guarantor, shall constitute the legal, valid and binding
contract and agreement of each Subsidiary Guarantor and such Purchaser shall
have received a true, correct and complete copy thereof.
Section 4.11.
Funding
Instructions. At
least
three Business Days prior to the date of the Closing, each Purchaser shall
have
received written instructions signed by a Responsible Officer on letterhead
of
the Company confirming the information specified in Section 3 including
(i) the name and address of the transferee bank, (ii) such transferee
bank’s ABA number and (iii) the account name and number into which the
purchase price for the Notes is to be deposited.
Section 4.12.
Proceedings
and Documents. All
corporate and other organizational proceedings in connection with the
transactions contemplated by this Agreement and all documents and instruments
incident to such transactions shall be reasonably satisfactory to such Purchaser
and its special counsel, and such Purchaser and its special counsel shall have
received all such counterpart originals or certified or other copies of such
documents as such Purchaser or such special counsel may reasonably
request.
Section 5.
Representations
and Warranties of the Company.
The
Company represents and warrants to each Purchaser that:
Section 5.1.
Organization;
Power and Authority.
The
Company is a corporation duly organized, validly existing and in good standing
under the laws of its jurisdiction of incorporation, and is duly qualified
as a
foreign corporation and is in good standing in each jurisdiction in which such
qualification is required by law, other than those jurisdictions as to
-5-
which
the
failure to be so qualified or in good standing would not, individually or in
the
aggregate, reasonably be expected to have a Material Adverse Effect. The Company
has the corporate power and authority to own or hold under lease the properties
it purports to own or hold under lease, to transact the business it transacts
and proposes to transact, to execute and deliver this Agreement and the Notes
and to perform the provisions hereof and thereof.
Section 5.2.
Authorization,
Etc. This
Agreement and the Notes to be issued on the Closing Date have been duly
authorized by all necessary corporate action on the part of the Company, and
this Agreement constitutes, and upon execution and delivery thereof each such
Note will constitute, a legal, valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, except as such
enforceability may be limited by (i) applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement
of
creditors’ rights generally and (ii) general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
Section 5.3.
Disclosure. The
Company, through its agent, Banc of America Securities LLC, has delivered to
you
and each Other Purchaser a copy of a Private Placement Memorandum, dated April,
2006 (the “Memorandum”),
relating to the transactions contemplated hereby. The Memorandum fairly
describes, in all material respects, the general nature of the business and
principal properties of the Company and its Restricted Subsidiaries. This
Agreement, the Memorandum, the documents, certificates or other writings
delivered to the Purchasers by or on behalf of the Company in connection with
the transactions contemplated hereby and listed on Schedule 5.3 hereto, and
the financial statements listed in Schedule 5.5, in each case, delivered to
the Purchasers prior to April 13, 2006 (this Agreement, the Memorandum and
such documents, certificates or other writings and such financial statements
being referred to, collectively, as the “Disclosure
Documents”),
taken
as a whole, do not contain any untrue statement of a material fact or omit
to
state any material fact necessary to make the statements therein not misleading
in the light of the circumstances under which they were made. Except as
disclosed in the Disclosure Documents, since June 30, 2005, there has been
no change in the financial condition, operations, business or properties of
the
Company or any of its Restricted Subsidiaries except changes that individually
or in the aggregate would not reasonably be expected to have a Material Adverse
Effect. There is no fact known to the Company that would reasonably be expected
to have a Material Adverse Effect that has not been set forth herein or in
the
Disclosure Documents.
Section 5.4.
Organization
and Ownership of Shares of Subsidiaries; Affiliates. (a) Schedule 5.4
contains (except as noted therein) complete and correct lists (i) of the
Company’s Restricted and Unrestricted Subsidiaries, showing, as to each
Subsidiary, the correct name thereof, the jurisdiction of its organization,
and
the percentage of shares of each class of its capital stock or similar equity
interests outstanding owned by the Company and each other Subsidiary, and all
other Investments of the Company and its Restricted Subsidiaries, (ii) of
the Company’s Affiliates, other than Subsidiaries and other than individuals
described in clause (iii) below, and (iii) of the Company’s directors and
senior officers.
(b)
All
of
the outstanding shares of capital stock or similar equity interests of each
Subsidiary shown in Schedule 5.4 as being owned by the Company and its
Subsidiaries have
-6-
been
validly issued, are fully paid and nonassessable and are owned by the Company
or
another Subsidiary free and clear of any Lien (except as otherwise disclosed
in
Schedule 5.4).
(c)
Each
Subsidiary identified in Schedule 5.4 is a corporation or other legal
entity duly organized, validly existing and in good standing under the laws
of
its jurisdiction of organization, and is duly qualified as a foreign corporation
or other legal entity and is in good standing in each jurisdiction in which
such
qualification is required by law, other than those jurisdictions as to which
the
failure to be so qualified or in good standing would not, individually or in
the
aggregate, reasonably be expected to have a Material Adverse Effect. Each such
Subsidiary has the corporate or other power and authority to own or hold under
lease the properties it purports to own or hold under lease and to transact
the
business it transacts and proposes to transact.
(d)
No
Subsidiary is a party to, or otherwise subject to, any legal restriction or
any
agreement (other than this Agreement, the agreements listed on Schedule 5.4
and customary limitations imposed by corporate law statutes) restricting the
ability of such Subsidiary to pay dividends out of profits or make any other
similar distributions of profits to the Company or any of its Subsidiaries
that
owns outstanding shares of capital stock or similar equity interests of such
Subsidiary.
Section 5.5.
Financial
Statements; Material Liabilities. The
Company has delivered to each Purchaser copies of the financial statements
of
the Company and its Subsidiaries listed on Schedule 5.5. All of said
financial statements (including in each case the related schedules and notes)
fairly present in all material respects the consolidated financial position
of
the Company and its Subsidiaries as of the respective dates specified in such
Schedule and the consolidated results of their operations and cash flows for
the
respective periods so specified and have been prepared in accordance with GAAP
consistently applied throughout the periods involved except as set forth in
the
notes thereto (subject, in the case of any interim financial statements, to
normal year-end adjustments). The Company and its Subsidiaries do not have
any
Material liabilities that are not disclosed on such financial statements or
otherwise disclosed in the Disclosure Documents.
Section 5.6.
Compliance
with Laws, Other Instruments, Etc. The
execution, delivery and performance by the Company of this Agreement and the
Notes will not (a) contravene, result in any breach of, or constitute a
default under, or result in the creation of any Lien in respect of any property
of the Company or any Subsidiary under, any indenture, mortgage, deed of trust,
loan, purchase or credit agreement, lease, corporate charter or by-laws, or
any
other agreement or instrument to which the Company or any Subsidiary is bound
or
by which the Company or any Subsidiary or any of their respective properties
may
be bound or affected, (b) conflict with or result in a breach of any of the
terms, conditions or provisions of any order, judgment, decree, or ruling of
any
court, arbitrator or Governmental Authority applicable to the Company or any
Subsidiary, or (c) violate any provision of any statute or other
rule or regulation of any Governmental Authority applicable to the Company
or any Subsidiary.
Section 5.7.
Governmental
Authorizations, Etc. No
consent, approval or authorization of, or registration, filing or declaration
with, any Governmental Authority is required in
-7-
connection
with the execution, delivery or performance by the Company of this Agreement
or
the Notes.
Section 5.8.
Litigation;
Observance of Agreements, Statutes and Orders. (a) There
are no actions, suits, investigations or proceedings pending or, to the
knowledge of the Company, threatened against or affecting the Company or any
Restricted Subsidiary or any property of the Company or any Restricted
Subsidiary in any court or before any arbitrator of any kind or before or by
any
Governmental Authority that, individually or in the aggregate, would reasonably
be expected to have a Material Adverse Effect.
(b)
Neither
the Company nor any Restricted Subsidiary is in default under any term of any
agreement or instrument to which it is a party or by which it is bound, or
any
order, judgment, decree or ruling of any court, arbitrator or Governmental
Authority or is in violation of any applicable law, ordinance, rule or
regulation (including without limitation Environmental Laws or the USA Patriot
Act) of any Governmental Authority, which default or violation, individually
or
in the aggregate, would reasonably be expected to have a Material Adverse
Effect.
Section 5.9.
Taxes. The
Company and its Subsidiaries have filed all tax returns that are required to
have been filed in any jurisdiction, and have paid all taxes shown to be due
and
payable on such returns and all other taxes and assessments levied upon them
or
their properties, assets, income or franchises, to the extent such taxes and
assessments have become due and payable and before they have become delinquent,
except for any taxes and assessments (a) the amount of which is not
individually or in the aggregate Material or (b) the amount, applicability
or validity of which is currently being contested in good faith by appropriate
proceedings and with respect to which the Company or a Subsidiary, as the case
may be, has established adequate reserves in accordance with GAAP. The Company
knows of no basis for any other tax or assessment that would reasonably be
expected to have a Material Adverse Effect. The charges, accruals and reserves
on the books of the Company and its Subsidiaries in respect of federal, state
or
other taxes for all fiscal periods are adequate. The federal income tax
liabilities of the Company and its Subsidiaries have been finally determined
(whether by reason of completed audits or the statute of limitations having
run)
for all fiscal years up to and including the fiscal year ended June 30,
2002.
Section 5.10.
Title
to Property; Leases. The
Company and its Restricted Subsidiaries have good and sufficient title to their
respective properties which the Company and its Restricted Subsidiaries own
or
purport to own that individually or in the aggregate are Material, including
all
such properties reflected in the most recent audited balance sheet referred
to
in Section 5.5 or purported to have been acquired by the Company or any
Restricted Subsidiary after said date (except as sold or otherwise disposed
of
in the ordinary course of business or no longer used or useful in the conduct
of
their respective businesses), in each case free and clear of Liens prohibited
by
this Agreement. All leases that individually or in the aggregate are Material
are valid and subsisting and are in full force and effect in all material
respects.
-8-
Section 5.11.
Licenses,
Permits, Etc.
Except
as disclosed in Schedule 5.11,
(a)
the
Company and its Restricted Subsidiaries own or possess all licenses, permits,
franchises, authorizations, patents, copyrights, proprietary software, service
marks, trademarks and trade names, or rights thereto (collectively, “Intellectual
Property”),
that
individually or in the aggregate are Material, without known conflict with
the
rights of others;
(b)
to
the
best knowledge of the Company, no product of the Company or any of its
Restricted Subsidiaries infringes in any Material respect any Intellectual
Property owned by any other Person; and
(c)
to
the
best knowledge of the Company, there is no Material violation by any Person
of
any right of the Company or any of its Restricted Subsidiaries with respect
to
any Intellectual Property owned or used by the Company or any of its Restricted
Subsidiaries.
Section 5.12.
Compliance
with ERISA. (a) The
Company and, in the case of any ERISA controlled group penalties and
liabilities, each ERISA Affiliate have operated and administered each Plan
in
compliance with all applicable laws except for such instances of noncompliance
as have not resulted in and would not reasonably be expected to result in a
Material Adverse Effect. Neither the Company nor any ERISA Affiliate has
incurred any liability pursuant to Title I or IV of ERISA or the penalty or
excise tax provisions of the Code relating to Plans, 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, in the case of any
ERISA
controlled group liabilities, 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 or section 4068 of ERISA, 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
subject to Title IV of ERISA (other than Multiemployer Plans), determined
as of the end of such Plan’s most recently ended plan year on the basis of the
actuarial assumptions specified for funding purposes in such Plan’s most recent
actuarial valuation report, did not exceed the aggregate current value of the
assets of such Plan allocable to such benefit liabilities by more than
$10,000,000 in the aggregate for all Plans. 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 any withdrawal liabilities
(and are not subject to contingent withdrawal liabilities) under
section 4201 or 4204 of ERISA in respect of Multiemployer Plans that
individually or in the aggregate are Material.
(d)
The
expected post-retirement benefit obligation (determined as of the last day
of
the Company’s most recently ended fiscal year in accordance with Financial
Accounting Standards
-9-
Board
Statement No. 106, without regard to liabilities attributable to
continuation coverage mandated by section 4980B of the Code) of the Company
and its Subsidiaries is not Material.
(e)
The
execution and delivery of this Agreement and the issuance and sale of the Notes
hereunder will not involve any transaction that is subject to the prohibitions
of Section 406(a) of ERISA or in connection with which a tax would be
imposed pursuant to Section 4975(c)(1)(A)-(D) of the Code. The
representation by the Company in the first sentence of this Section 5.12(e)
is made in reliance upon and subject to the accuracy of each Purchaser’s
representation in Section 6.3 as to the sources of the funds to be used to
pay the purchase price of the Notes to be purchased by such
Purchaser.
Section 5.13.
Private
Offering by the Company. Neither
the Company nor anyone acting on the Company’s behalf has offered the Notes or
any similar securities for sale to, or solicited any offer to buy any of the
same from, or otherwise approached or negotiated in respect thereof with, any
Person other than the Purchasers and not more than 50 other Institutional
Investors, each of which has been offered the Notes in connection with a private
sale for investment. Neither the Company nor anyone acting on its behalf has
taken, or will take, any action that would subject the issuance or sale of
the
Notes to the registration requirements of Section 5 of the Securities Act
or to the registration requirements of any securities or blue sky laws of any
applicable jurisdiction.
Section 5.14.
Use
of Proceeds; Margin Regulations. The
Company will apply the proceeds of the sale of the Notes to refinance existing
Debt and for general corporate purposes of the Company. No part of the proceeds
from the sale of the Notes hereunder will be used, directly or indirectly,
for
the purpose of buying or carrying any margin stock within the meaning of
Regulation U of the Board of Governors of the Federal Reserve System
(12 CFR 221), or for the purpose of buying or carrying or trading in
any securities under such circumstances as to involve the Company in a violation
of Regulation X of said Board (12 CFR 224) or to involve any broker or
dealer in a violation of Regulation T of said Board (12 CFR 220).
Margin stock does not constitute more than 5% of the value of the consolidated
assets of the Company and its Subsidiaries and the Company does not have any
present intention that margin stock will constitute more than 5% of the value
of
such assets. As used in this Section, the terms “margin
stock”
and
“purpose
of buying or carrying”
shall
have the meanings assigned to them in said Regulation U.
Section 5.15.
Existing
Debt; Future Liens.
(a) Except as described therein, Schedule 5.15 sets forth a complete
and correct list of all outstanding Debt of the Company and its Restricted
Subsidiaries as of March 31, 2006, since which date there has been no
Material change in the amounts, interest rates, sinking funds, installment
payments or maturities of the Debt of the Company or its Restricted
Subsidiaries. Neither the Company nor any Restricted Subsidiary is in default
and no waiver of default is currently in effect, in the payment of any principal
or interest on any Debt of the Company or such Restricted Subsidiary, and no
event or condition exists with respect to any Debt of the Company or any
Restricted Subsidiary, that would permit (or that with notice or the lapse
of
time, or both, would permit) one or more Persons to cause such Debt to become
due and payable before its stated maturity or before its regularly scheduled
dates of payment.
-10-
(b)
Except
as
disclosed in Schedule 5.15, neither the Company nor any Restricted
Subsidiary has agreed or consented to cause or permit in the future (upon the
happening of a contingency or otherwise) any of its property, whether now owned
or hereafter acquired, to be subject to a Lien not permitted by
Section 10.3.
(c)
Neither
the Company nor any Subsidiary is a party to, or otherwise subject to any
provision contained in, any instrument evidencing Debt of the Company or such
Subsidiary, any agreement relating thereto or any other agreement (including,
but not limited to, its charter or other organizational document) which limits
the amount of, or otherwise imposes restrictions on the incurring of, Debt
of
the Company, except as specifically indicated in
Schedule 5.15.
Section 5.16.
Foreign
Assets Control Regulations, Etc. (a) Neither
the sale of the Notes by the Company hereunder nor its use of the proceeds
thereof will violate the Trading with the Enemy Act, as amended, or any of
the
foreign assets control regulations of the United States Treasury Department
(31
CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or
executive order relating thereto.
(b)
Neither
the Company nor any Subsidiary is a Person described or designated in the
Specially Designated Nationals and Blocked Persons List of the Office of Foreign
Assets Control or in Section 1 of the Anti-Terrorism Order or, to the
knowledge of the Company, engages in any dealings or transactions with any
such
Person. The Company and its Subsidiaries are in compliance, in all material
respects, with the USA Patriot Act.
(c)
No
part
of the proceeds from the sale of the Notes hereunder will be used, directly
or
indirectly, for any payments to any governmental official or employee, political
party, official of a political party, candidate for political office, or anyone
else acting in an official capacity, in order to obtain, retain or direct
business or obtain any improper advantage, in violation of the United States
Foreign Corrupt Practices Act of 1977, as amended, assuming in all cases that
such Act applies to the Company.
Section 5.17.
Status
under Certain Statutes. Neither
the Company nor any Restricted Subsidiary is an “investment company” registered
or required to be registered under the Investment Company Act of 1940, as
amended, or is subject to regulation under the ICC Termination Act of 1995,
as
amended, or the Federal Power Act, as amended.
Section 5.18.Environmental
Matters.
(a) Neither the Company nor any Restricted Subsidiary has knowledge of any
liability or has received any written notice of any liability under or violation
of any Environmental Law, and no proceeding has been instituted alleging any
liability under or violation of any Environmental Law against the Company or
any
of its Restricted Subsidiaries or any of their respective real properties now
or
formerly owned, leased or operated by any of them, or other assets, except,
in
each case, such as would not reasonably be expected to result in a Material
Adverse Effect.
(b)
Neither
the Company nor any Restricted Subsidiary has knowledge of any facts which
would
give rise to any liability under or violation of any Environmental Law related
to real properties or other assets now or formerly owned, leased or operated
by
any of them or
-11-
their
use, except, in each case, such as would not reasonably be expected to result
in
a Material Adverse Effect.
(c)
Neither
the Company nor any of its Restricted Subsidiaries has stored any Hazardous
Materials on real properties now or formerly owned, leased or operated by any
of
them or has disposed of any Hazardous Materials in each case in violation of
any
Environmental Laws in each case in any manner that would reasonably be expected
to result in a Material Adverse Effect.
(d)
All
buildings on all real properties now owned, leased or operated by the Company
or
any of its Restricted Subsidiaries are in compliance with applicable
Environmental Laws, except where failure to comply would not reasonably be
expected to result in a Material Adverse Effect.
Section 5.19.
Notes
Rank Pari Passu.
The
obligations of the Company under this Agreement and the Notes rank pari
passu
in right
of payment with all other senior unsecured Debt (actual or contingent) of the
Company, including, without limitation, all senior unsecured Debt of the Company
described in Schedule 5.15 hereto.
|
Section 6.
|
Representations
of the Purchaser.
|
Section 6.1.
Purchase
for Investment. Each
Purchaser severally represents that it is purchasing the Notes for its own
account or for one or more separate accounts maintained by it 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 such Purchaser’s or such pension or trust funds’ property shall
at all times be within such Purchaser’s or such pension or trust funds’
control.
Section 6.2.
Accredited
Investor.
Each
Purchaser represents that it is an “accredited investor” (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) acting
for
its own account (and not for the account of others) or as a fiduciary or agent
for others (which others are also “accredited investors”). Each
Purchaser further represents that such Purchaser has had the opportunity to
ask
questions of the Company and received answers concerning the terms and
conditions of the sale of the Notes. Each Purchaser understands that the Notes
have not been registered under the Securities Act and may be resold only if
registered pursuant to the provisions of the Securities Act or if an exemption
from registration is available, except under circumstances where neither such
registration nor such an exemption is required by law, and that the Company
is
not required to register the Notes.
Section 6.3.
Source
of Funds.
Each
Purchaser severally represents that at least one of the following statements
is
an accurate representation as to each source of funds (a “Source”)
to be
used by such Purchaser to pay the purchase price of the Notes to be purchased
by
such Purchaser hereunder:
(a)
the
Source is an “insurance company general account” (as the term is defined in the
United States Department of Labor’s Prohibited Transaction Exemption
(“PTE”)
95-60)
in respect of which the reserves and liabilities (as defined by the annual
-12-
statement
for life insurance companies approved by the National Association of Insurance
Commissioners (the “NAIC
Annual Statement”))
for
the general account contract(s) held by or on behalf of any employee benefit
plan together with the amount of the reserves and liabilities for the general
account contract(s) held by or on behalf of any other employee benefit plans
maintained by the same employer (or affiliate thereof as defined in PTE 95-60)
or by the same employee organization in the general account do not exceed 10%
of
the total reserves and liabilities of the general account (exclusive of separate
account liabilities) plus surplus as set forth in the NAIC Annual Statement
filed with such Purchaser’s state of domicile; or
(b)
the
Source is a separate account that is maintained solely in connection with such
Purchaser’s fixed contractual obligations under which the amounts payable, or
credited, to any employee benefit plan (or its related trust) that has any
interest in such separate account (or to any participant or beneficiary of
such
plan (including any annuitant)) are not affected in any manner by the investment
performance of the separate account; or
(c)
the
Source is either (i) an insurance company pooled separate account, within the
meaning of PTE 90-1 or (ii) a bank collective investment fund, within the
meaning of the PTE 91-38 and, except as disclosed by such Purchaser to the
Company in writing pursuant to this clause (c), no employee benefit plan or
group of plans maintained by the same employer or employee organization
beneficially owns more than 10% of all assets allocated to such pooled separate
account or collective investment fund; or
(d)
the
Source constitutes assets of an “investment fund” (within the meaning of Part V
of PTE 84-14 (the “QPAM
Exemption”))
managed by a “qualified professional asset manager” or “QPAM” (within the
meaning of Part V of the QPAM Exemption), no employee benefit plan’s assets that
are included in such investment fund, when combined with the assets of all
other
employee benefit plans established or maintained by the same employer or by
an
affiliate (within the meaning of Section V(c)(1) of the QPAM Exemption) of
such
employer or by the same employee organization and managed by such QPAM, exceed
20% of the total client assets managed by such QPAM, the conditions of Part
I(c)
and (g) of the QPAM Exemption are satisfied, neither the QPAM nor a person
controlling or controlled by the QPAM (applying the definition of “control” in
Section V(e) of the QPAM Exemption) owns a 5% or more interest in the Company
and (i) the identity of such QPAM and (ii) the names of all employee benefit
plans whose assets are included in such investment fund have been disclosed
to
the Company in writing pursuant to this clause (d); or
(e)
the
Source constitutes assets of a “plan(s)” (within the meaning of Section IV of
PTE 96-23 (the “INHAM
Exemption”))
managed by an “in-house asset manager” or “INHAM” (within the meaning of Part IV
of the INHAM exemption), the conditions of Part I(a), (g) and (h) of the INHAM
Exemption are satisfied, neither the INHAM nor a person controlling or
controlled by the INHAM (applying the definition of “control” in Section IV(d)
of the INHAM Exemption) owns a 5% or more interest in the Company and (i) the
identity of such INHAM and (ii) the name(s) of the employee benefit plan(s)
-13-
whose
assets constitute the Source have been disclosed to the Company in writing
pursuant to this clause (e); or
(f)
the
Source is a governmental plan; or
(g)
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 clause (g);
or
(h)
the
Source does not include assets of any employee benefit plan, other than a plan
exempt from the coverage of ERISA.
As
used
in this Section 6.3, the terms “employee
benefit plan,” “governmental
plan,”
and
“separate
account”
shall
have the respective meanings assigned to such terms in section 3 of
ERISA.
|
Section 7.
|
Information
as to Company.
|
Section 7.1.
Financial
and Business Information.
The
Company shall deliver to each holder of Notes that is an Institutional
Investor:
(a)
Quarterly
Statements—
within
60 days after the end of each quarterly fiscal period in each fiscal year of
the
Company (other than the last quarterly fiscal period of each such fiscal year),
(i)
a
consolidated balance sheet of the Company and its Subsidiaries as at the end
of
such quarter, and
(ii)
consolidated
statements of income, changes in shareholders’ equity and cash flows of the
Company and its Subsidiaries, for such quarter and (in the case of the second
and third quarters) for the portion of the fiscal year ending with such quarter,
setting
forth in each case in comparative form the figures for the corresponding periods
in the previous fiscal year, all in reasonable detail, prepared in accordance
with GAAP applicable to quarterly financial statements generally, and certified
by a Senior Financial Officer as fairly presenting, in all material respects,
the 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
filing with the Securities and Exchange Commission within the time period
specified above the Company’s Quarterly Report on Form 10-Q prepared in
compliance with the requirements therefor shall be deemed to satisfy the
requirements of this Section 7.1(a);
(b)
Annual
Statements—
within
105 days after the end of each fiscal year of the Company,
-14-
(i)
a
consolidated balance sheet of the Company and its Subsidiaries, as at the end
of
such year, and
(ii)
consolidated
statements of income, changes in shareholders’ equity and cash flows of the
Company and its Subsidiaries, for such year,
setting
forth in each case in comparative form the figures for the previous fiscal
year,
all in reasonable detail, prepared in accordance with GAAP, and accompanied
by
an opinion thereon of independent certified public accountants of recognized
national standing, which opinion shall state that such financial statements
present fairly, in all material respects, the financial position of the
companies being reported upon and their results of operations and cash flows
and
have been prepared in conformity with GAAP, and that the examination of such
accountants in connection with such financial statements has been made in
accordance with generally accepted auditing standards, and that such audit
provides a reasonable basis for such opinion in the circumstances, provided
that
filing with the Securities and Exchange Commission 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 shall be deemed to satisfy the requirements of this
Section 7.1(b);
(c)
Consolidated
Statements of Unrestricted Subsidiaries - if
one or
more Unrestricted Subsidiaries shall either (i) own more than 10% of the total
consolidated assets of the Company and its Subsidiaries, or (ii) account for
more than 10% of the consolidated gross revenues of the Company and its
Subsidiaries, determined in each case in accordance with GAAP, then, within
the
respective periods provided in Section 7.1(a) and (b) above, the Company shall
deliver to each holder of Notes that is an Institutional Investor, unaudited
financial statements of the character and for the dates and periods as in said
Sections 7.1(a) and (b) covering such group of Unrestricted Subsidiaries (on
a
consolidated basis), together with a consolidating statement reflecting
eliminations or adjustments required to reconcile the financial statements
of
such group of Unrestricted Subsidiaries to the financial statements delivered
pursuant to Sections 7.1(a) and (b);
(d)
SEC
and Other Reports—
except
for filings referred to in Section 7.1(a) and (b) above, promptly upon
their becoming available and, to the extent applicable, one copy of
(i) each financial statement, report, notice or proxy statement sent by the
Company or any Subsidiary to public securities holders generally, and
(ii) each regular or periodic report, each registration statement (without
exhibits except as expressly requested by such holder), and each prospectus
and
all amendments thereto filed by the Company or any Subsidiary with the
Securities and Exchange Commission and of all press releases and other
statements made available generally by the Company or any Subsidiary to the
public concerning developments that are Material; provided,
that the
Company shall be deemed to have made such delivery of the items in clauses
(i)
and (ii) of this Section 7.1(d) if it shall have timely made such items
available on “XXXXX”;
-15-
(e)
Notice
of Default or Event of Default—
promptly, and in any event within five Business Days after a Responsible Officer
becomes aware of the existence of any Default or Event of Default or the
occurrence or existence of any event or circumstance that in the reasonable
judgment of the Company is likely to become a Default or Event of Default,
a
written notice specifying the nature and period of existence thereof and what
action the Company is taking or proposes to take with respect
thereto;
(f)
ERISA
Matters—
promptly, and in any event within five Business Days after a Responsible Officer
becomes aware of any of the following, a written notice setting forth the nature
thereof and the action, if any, that the Company or an ERISA Affiliate proposes
to take with respect thereto:
(i)
with
respect to any Plan, any reportable event, as defined in
Section 4043(c)
of ERISA and the regulations thereunder, for which notice thereof has not been
waived pursuant to such regulations as in effect on the date thereof and which
would reasonably be expected to result in a Material Adverse Effect;
or
(ii)
the
taking by the PBGC of steps to institute, or the threatening by the PBGC of
the
institution of, proceedings under Section 4042 of ERISA for the termination
of, or the appointment of a trustee to administer, any Plan, or the receipt
by
the Company or any ERISA Affiliate of a notice from a Multiemployer Plan that
such action has been taken by the PBGC with respect to such Multiemployer Plan;
or
(iii)
any
event, transaction or condition that would result in the incurrence of any
liability by the Company (or in the case of any ERISA controlled group
liabilities, any ERISA Affiliate) pursuant to Title I or IV of ERISA or the
imposition of a penalty or excise tax under the provisions of the Code relating
to employee benefit plans, or 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;
(g)
Notices
from Governmental Authority —
promptly, and in any event within 30 days of receipt thereof, copies of any
notice to the Company or any Subsidiary from any federal or state Governmental
Authority relating to any order, ruling, statute or other law or regulation
that
would reasonably be expected to have a Material Adverse Effect; and
(h)
Requested
Information—
with
reasonable promptness, such other data and information relating to the business,
operations, affairs, financial condition, assets or properties of the Company
or
any of its Subsidiaries or relating to the ability of the 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 or such information regarding
-16-
the
Company required to satisfy the requirements of 17 C.F.R. §230.144A, as
amended from time to time, in connection with any contemplated transfer of
the
Notes.
Section 7.2.
Officer’s
Certificate.
Each
set of financial statements delivered to a holder of Notes pursuant to
Section 7.1(a) or Section 7.1(b) hereof shall be accompanied by a
certificate of a Senior Financial Officer setting forth:
(a)
Covenant
Compliance—
the
information required in order to establish whether the Company was in compliance
with the requirements of Section 10.1 through Section 10.5 hereof,
inclusive, during the quarterly or annual period covered by the statements
then
being furnished (including with respect to each such Section, where applicable,
the calculations of the maximum or minimum amount, ratio or percentage, as
the
case may be, permissible under the terms of such Sections, and the calculation
of the amount, ratio or percentage then in existence); and
(b)
Event
of Default—
a
statement that such officer has reviewed the relevant terms hereof and such
review shall not have disclosed the existence during the quarterly or annual
period covered by the statements then being furnished of any condition or event
that constitutes a Default or an Event of Default or, if any such condition
or
event existed or exists, specifying the nature and period of existence thereof
and what action the Company shall have taken or proposes to take with respect
thereto.
Section 7.3.
Visitation.
The
Company shall permit the representatives of each holder of Notes that is an
Institutional Investor:
(a)
No
Default—
if
no
Default or Event of Default then exists, at the expense of such holder and
upon
reasonable prior notice to the Company, to visit the principal executive office
of the Company, to discuss the affairs, finances and accounts of the Company
and
its Subsidiaries with the Company’s officers, and (with the consent of the
Company, which consent will not be unreasonably withheld) its independent public
accountants, and (with the consent of the Company, which consent will not be
unreasonably withheld) to visit the other offices and properties of the Company
and each Restricted Subsidiary, all at such reasonable times during normal
business hours and as often as may be reasonably requested in writing;
and
(b)
Default—
if
a
Default or Event of Default then exists, at the expense of the Company, to
visit
and inspect any of the offices or properties of the Company or any Restricted
Subsidiary, to examine (other than information governed by a written
confidentiality agreement which prohibits such access) 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
during normal business hours and as often as may be requested.
-17-
|
Section 8.
|
Payment
of the Notes.
|
Section 8.1.
Required
Prepayments. The
entire unpaid principal amount of the Notes shall become due and payable on
May 2, 2016.
Section 8.2.
Optional
Prepayments with Make-Whole Amount.
The
Company may, at its option, upon notice as provided below, prepay at any time
all, or from time to time any part of the Notes, in an amount not less than
10%
of the original aggregate principal amount of the Notes to be prepaid in the
case of a partial prepayment, at 100% of the principal amount so prepaid,
together with accrued and unpaid interest thereon to the date of such
prepayment, plus the Make-Whole Amount determined for the prepayment date with
respect to such principal amount of each Note then outstanding. The Company
will
give each holder of Notes written notice of each optional prepayment under
this
Section 8.2 not less than 15 days and not more than 60 days prior to the
date fixed for such prepayment. Each such notice shall specify such date, the
aggregate principal amount of the Notes to be prepaid on such date, the
principal amount of each Note held by such holder to be prepaid (determined
in
accordance with Section 8.3), and the interest to be paid on the prepayment
date with respect to such principal amount being prepaid, and shall be
accompanied by a certificate of a Senior Financial Officer as to the estimated
respective Make-Whole Amount due in connection with such prepayment (calculated
as if the date of such notice were the date of the prepayment), setting forth
the details of such computation. Two Business Days prior to such prepayment,
the
Company shall deliver to each holder of Notes to be prepaid a certificate of
a
Senior Financial Officer specifying the calculation of each such Make-Whole
Amount as of the specified prepayment date.
Section 8.3.
Allocation
of Partial Prepayments.
In the
case of each partial prepayment of the Notes pursuant to the provisions of
Section 8.2, the principal amount of the Notes shall be allocated among all
of the Notes at the time outstanding in proportion, as nearly as practicable,
to
the respective unpaid principal amounts thereof.
Section 8.4.
Rejectable
Offer of Prepayment Following Certain Asset Sales.
If the
Company uses a portion of the net proceeds received from a sale of a
“substantial part” of its assets to prepay or retire Senior Debt of the Company
and/or its Restricted Subsidiaries in accordance with the terms of
Section 10.4(2) hereof, the Company shall offer to prepay each outstanding
Note in a principal amount that equals the Ratable Portion for such Note, and
(ii) any such prepayment of the Notes shall be made at par, together with
accrued interest thereon to the date of such prepayment, but without the payment
of the Make-Whole Amount. Any offer of prepayment of the Notes pursuant to
this
Section 8.4 shall be given to each holder of the Notes by written notice
delivered not less than fifteen (15) days and not more than sixty (60) days
prior to the proposed prepayment date. Each such notice shall state that it
is
given pursuant to this Section 8.4 and that the offer set forth in such
notice must be accepted by such holder in writing and shall also set forth
(i) the prepayment date, (ii) a description of the circumstances which
give rise to the proposed prepayment, and (iii) a calculation of the
Ratable Portion for such holder’s Notes. Each holder of the Notes which desires
to have its Notes prepaid shall notify the Company in writing delivered not
less
than three (3) Business Days prior to the proposed prepayment date of its
acceptance of such offer of prepayment. A failure by a holder of Notes to
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respond
to an offer of prepayment made pursuant to this Section 8.4 shall be deemed
to
constitute a rejection of such offer by such holder.
Section 8.5.
Maturity;
Surrender, Etc.
In the
case of each prepayment of Notes pursuant to this Section 8, the principal
amount of each Note to be prepaid shall mature and become due and payable on
the
date fixed for such prepayment, together with interest on such principal amount
accrued to such date and the applicable Make-Whole Amount. From and after such
date, unless the Company shall fail to pay such principal amount when so due
and
payable, together with the interest and Make-Whole Amount as aforesaid, interest
on such principal amount shall cease to accrue. Any Note paid or prepaid in
full
shall be surrendered to the Company and cancelled and shall not be reissued,
and
no Note shall be issued in lieu of any prepaid principal amount of any
Note.
Section 8.6.
Purchase
of Notes.
The
Company will not and will not permit any Affiliate to purchase, redeem, prepay
or otherwise acquire, directly or indirectly, any of the outstanding Notes
except (a) upon the payment or prepayment of the Notes in accordance with the
terms of this Agreement and the Notes or (b) pursuant to a written offer to
purchase any outstanding Notes made by the Company or an Affiliate pro rata
to
the holders of the Notes upon the same terms and conditions. The Company will
promptly cancel all Notes acquired by it or any Affiliate pursuant to any
payment, prepayment or purchase of Notes pursuant to any provision of this
Agreement and no Notes may be issued in substitution or exchange for any such
Notes.
Section 8.7.
Make-Whole
Amount for the Notes.
The
term “Make-Whole
Amount”
means
with respect to any Note an amount equal to the excess, if any, of the
Discounted Value of the Remaining Scheduled Payments with respect to the Called
Principal of such Note, minus
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 with respect to the Called Principal of such Note:
“Called
Principal”
means,
the principal of any Note that is to be prepaid pursuant to Section 8.2 or
has become or is declared to be immediately due and payable pursuant to
Section 12.1, as the context requires.
“Discounted
Value”
means,
the amount obtained by discounting all Remaining Scheduled Payments from their
respective scheduled due dates to the Settlement Date with respect to such
Called Principal, in accordance with accepted financial practice and at a
discount factor (applied on the same periodic basis as that on which interest
on
such Note is payable) equal to the Reinvestment Yield.
“Reinvestment
Yield”
means,
0.50% plus the yield to maturity calculated by using (i) the yields
reported, as of 10:00 A.M. (New York City time) on the second Business
Day preceding the Settlement Date on screen “PX-1” on the Bloomberg Financial
Market Service (or such other information service as may replace Bloomberg)
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
-19-
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,
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.
In
either
case,
the
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 on a straight line basis 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.
“Remaining
Average Life”
means,
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 by (b) the number of years (calculated to the nearest
one-twelfth year) that will elapse between the Settlement Date and the scheduled
due date of such Remaining Scheduled Payment.
“Remaining
Scheduled Payments”
means,
all payments of such Called Principal and interest thereon that would be due
after the Settlement Date if no payment of such Called Principal were made
prior
to its scheduled due date, provided
that if
such Settlement Date is not a date on which interest payments are due to be
made
under the terms of such Note, then the amount of the next succeeding scheduled
interest payment will be reduced by the amount of interest accrued to such
Settlement Date and required to be paid on such Settlement Date pursuant to
Section 8.2 or 12.1.
“Settlement
Date”
means,
the date on which such Called Principal is to be prepaid pursuant to
Section 8.2 or has become or is declared to be immediately due and payable
pursuant to Section 12.1, as the context requires.
|
Section 9.
|
Affirmative
Covenants.
|
The
Company covenants that so long as any of the Notes are outstanding:
Section 9.1.
Compliance
with Law.
Without
limiting Section 10.7, the Company will, and will cause each of its
Subsidiaries to, comply with all laws, ordinances or governmental rules or
regulations to which each of them is subject, including, without limitation,
ERISA, the USA Patriot Act and Environmental Laws, and will obtain and maintain
in effect all licenses, certificates, permits, franchises and other governmental
authorizations necessary to the ownership of their respective properties or
to
the conduct of their respective businesses, in each case to the extent necessary
to ensure that non-compliance with such laws, ordinances or governmental rules
or regulations or failures to obtain or maintain in effect such licenses,
certificates, permits, franchises and other governmental authorizations would
not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
-20-
Section 9.2.
Insurance.
The
Company will, and will cause each of its Restricted 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
except for any non-maintenance that would not reasonably be expected to have
a
Material Adverse Effect.
Section 9.3.
Maintenance
of Properties.
The
Company will, and will cause each of its Restricted Subsidiaries to, maintain
and keep, or cause to be maintained and kept, their respective properties in
good repair, working order and condition (other than ordinary wear and tear),
so
that the business carried on in connection therewith may be properly conducted
at all times, provided
that
this Section shall not prevent the Company or any Restricted Subsidiary
from discontinuing the operation and the maintenance of any of its properties
if
such discontinuance is desirable in the conduct of its business and the Company
has concluded that such discontinuance would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect.
Section 9.4.
Payment
of Taxes and Claims.
The
Company will, and will cause each of its Subsidiaries to, file all tax returns
required to be filed in any jurisdiction and to pay and discharge all taxes
shown to be due and payable on such returns and all other taxes, assessments,
governmental charges, or levies imposed on them or any of their properties,
assets, income or franchises, to the extent such taxes and assessments have
become due and payable and before they have become delinquent and all claims
for
which sums have become due and payable that have or might become a Lien on
properties or assets of the Company or any Subsidiary not permitted by
Section 10.3, provided
that
neither the Company nor any Subsidiary need pay any such tax or assessment
or
claims 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 non-filing or nonpayment, as the case may
be, of all such taxes and assessments in the aggregate would not reasonably
be
expected to have a Material Adverse Effect.
Section 9.5.
Corporate
Existence, Etc.
Subject
to Sections 10.4
and
10.5, the Company will at all times preserve and keep in full force and effect
its corporate existence, and will at all times preserve and keep in full force
and effect the corporate existence of each of its Restricted Subsidiaries
(unless merged into the Company or a Restricted Subsidiary) and all rights
and
franchises of the Company and its Restricted 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, reasonably be expected to have a Material
Adverse Effect.
Section
9.6. Designation
of Subsidiaries. The
Company may from time to time cause any Subsidiary (other than a Subsidiary
Guarantor) to be designated as an Unrestricted Subsidiary or any Unrestricted
Subsidiary to be designated a Restricted Subsidiary; provided,
-21-
however,
that at
the time of such designation and immediately after giving effect thereto, (a)
no
Default or Event of Default exists or would exist under the terms of this
Agreement, (b) the Company and its Restricted Subsidiaries would be in
compliance with all of the covenants set forth in this Section 9 and Section
10
if tested on the date of such action and (c) in the case of a Restricted
Subsidiary being designated as an Unrestricted Subsidiary, such
Restricted Subsidiary does not own, directly or indirectly, any Debt or capital
stock of the Company or any other Restricted Subsidiary and
provided,
further,
that
once a Subsidiary has been designated an Unrestricted Subsidiary, it shall
not
thereafter be redesignated as a Restricted Subsidiary on more than one occasion
and once a Subsidiary has been designated a Restricted Subsidiary, it shall
not
thereafter be redesignated as an Unrestricted Subsidiary on more than one
occasion and provided,
further,
the
designation of a Restricted Subsidiary as an Unrestricted Subsidiary will be
considered as a sale of such Subsidiary for purposes of Section 10.4.
Within
ten (10) days following any designation described above, the Company will
deliver to you a notice of such designation accompanied by a certificate signed
by a Senior Financial Officer of the Company certifying compliance with all
requirements of this Section 9.6 and setting forth all information required
in
order to establish such compliance.
Section 9.7.
Notes
to Rank Pari Passu. The
Notes
and all other obligations of the Company under this Agreement are and at all
times shall remain direct and unsecured obligations of the Company ranking
pari
passu
as
against the assets of the Company with all other Notes from time to time issued
and outstanding hereunder without any preference among themselves and
pari
passu
with all
other present and future unsecured Debt (actual or contingent) of the Company
which is not expressed to be subordinate or junior in rank to any other
unsecured Debt of the Company.
Section 9.8.
Additional
Subsidiary Guarantors.
The
Company will cause any Subsidiary which is required by the terms of the Bank
Credit Agreement (which requirement has not been waived by the lenders
thereunder) to become a party to, or otherwise guarantee, Debt in respect of
the
Bank Credit Agreement, to enter into the Subsidiary Guaranty and deliver to
each
of the holders of the Notes (concurrently with the incurrence of any such
obligation pursuant to the Bank Credit Agreement) the following
items:
(a)
a
joinder
agreement in respect of the Subsidiary Guaranty;
(b)
a
certificate signed by an authorized Responsible Officer of the Company making
representations and warranties to the effect of those contained in
Sections 5.4, 5.6 and 5.7, with respect to such Subsidiary and the
Subsidiary Guaranty, as applicable; and
(c)
an
opinion of counsel (who may be in-house counsel for the Company) addressed
to
each of the holders of the Notes satisfactory to the Required Holders, to the
effect that the Subsidiary Guaranty by such Person has been duly authorized,
executed and delivered and that the Subsidiary Guaranty constitutes the legal,
valid and binding contract and agreement of such Person enforceable in
accordance with its terms, except as an enforcement of such terms may be limited
by bankruptcy, insolvency, fraudulent conveyance and similar laws affecting
the
enforcement of creditors’ rights generally and by general equitable
principles.
-22-
Section 9.9.
Books
and Records. The
Company will, and will cause each of its Restricted Subsidiaries to, maintain
proper books of record and account in conformity with GAAP and all applicable
requirements of any Governmental Authority having legal or regulatory
jurisdiction over the Company or such Restricted Subsidiary, as the case may
be.
|
Section 10.
|
Negative
Covenants.
|
The
Company covenants that so long as any of the Notes are outstanding:
Section 10.1.
Consolidated
Debt to Consolidated EBITDA.
The
Company will not permit the ratio of Consolidated Debt to Consolidated EBITDA
(Consolidated EBITDA to be calculated as at the end of each fiscal quarter
for
the four consecutive fiscal quarters then ended) to exceed 3.5 to 1.00;
provided,
however, that
the
ratio of Consolidated Debt to Consolidated EBITDA may exceed 3.5 to 1.00 at
any
time during the Transition Period if such ratio of Consolidated Debt to
Consolidated EBITDA exceeded 3.5 to 1.00 as a direct result of the Company
or
any Restricted Subsidiary creating, assuming, incurring, guaranteeing or
otherwise becoming liable in respect of Acquisition Debt so long as the ratio
of
Consolidated Debt to Consolidated EBITDA at all times during the Transition
Period shall not exceed 4.0 to 1.00.
Section
10.2. Priority
Debt.
The
Company will not at any time permit the aggregate amount of all Priority Debt
to
exceed 20% of Consolidated Net Worth (Consolidated Net Worth to be determined
as
of the end of the then most recently ended fiscal quarter of the
Company).
Section 10.3.
Limitation
on Liens.
The
Company will not, and will not permit any of its Restricted Subsidiaries to,
directly or indirectly create, incur, assume or permit to exist (upon the
happening of a contingency or otherwise) any Lien on or with respect to any
property or asset (including, without limitation, any document or instrument
in
respect of goods or accounts receivable) of the Company or any such Restricted
Subsidiary, whether now owned or held or hereafter acquired, or any income
or
profits therefrom, or assign or otherwise convey any right to receive income
or
profits (unless it makes, or causes to be made, effective provision whereby
the
Notes will be equally and ratably secured with any and all other obligations
thereby secured, such security to be pursuant to an agreement reasonably
satisfactory to the Required Holders and, in any such case, the Notes shall
have
the benefit, to the fullest extent that, and with such priority as, the holders
of the Notes may be entitled under applicable law, of an equitable Lien on
such
property), except:
(a)
Liens
for
taxes, assessments or other governmental charges that are not yet due and
payable or the payment of which is not at the time required by
Section 9.4;
(b)
any
attachment or judgment Lien, unless the judgment it secures shall not, within
60
days after the entry thereof, have been discharged or execution thereof stayed
pending appeal, or shall not have been discharged within 60 days after the
expiration of any such stay;
(c)
Liens
incidental to the conduct of business or the ownership of properties and assets
(including landlords’, carriers’, warehousemen’s, mechanics’, materialmen’s
-23-
and
other
similar Liens for sums not yet due and payable) and Liens to secure the
performance of bids, tenders, leases, or trade contracts, or to secure statutory
obligations (including obligations under workers compensation, unemployment
insurance and other social security legislation), surety or appeal bonds or
other Liens incurred in the ordinary course of business and not in connection
with the borrowing of money;
(d)
leases
or
subleases granted to others, easements, rights-of-way, restrictions and other
similar charges or encumbrances, in each case incidental to the ownership of
property or assets or the ordinary conduct of the business of the Company or
any
of its Restricted Subsidiaries, or Liens incidental to minor survey exceptions
and the like, provided
that
such Liens do not, in the aggregate, materially detract from the value of such
property;
(e)
Liens
securing Debt of a Restricted Subsidiary to the Company or to a Restricted
Subsidiary;
(f)
Liens
existing as of the date of Closing and reflected in
Schedule 10.3;
(g)
Liens
incurred after the date of Closing given to secure the payment of the purchase
price incurred in connection with the acquisition, construction or improvement
of property (other than accounts receivable or inventory) useful and intended
to
be used in carrying on the business of the Company or a Restricted Subsidiary,
including Liens existing on such property at the time of acquisition or
construction thereof or Liens incurred within 365 days of such acquisition
or
completion of such construction or improvement, provided
that
(i) the Lien shall attach solely to the property acquired, purchased,
constructed or improved; (ii) at the time of acquisition, construction or
improvement of such property (or, in the case of any Lien incurred within three
hundred sixty-five (365) days of such acquisition or completion of such
construction or improvement, at the time of the incurrence of the Debt secured
by such Lien), the aggregate amount remaining unpaid on all Debt secured by
Liens on such property, whether or not assumed by the Company or a Restricted
Subsidiary, shall not exceed the lesser of (y) the cost of such
acquisition, construction or improvement or (z) the Fair Market Value of
such property (as determined in good faith by one or more officers of the
Company); and (iii) at the time of such incurrence and after giving effect
thereto, no Default or Event of Default would exist;
(h)
any
Lien
existing on property of a Person immediately prior to its being consolidated
with or merged into the Company or a Restricted Subsidiary or its becoming
a
Restricted Subsidiary, or any Lien existing on any property acquired by the
Company or any Restricted Subsidiary at the time such property is so acquired
(whether or not the Debt secured thereby shall have been assumed), provided
that
(i) no such Lien shall have been created or assumed in contemplation of
such consolidation or merger or such Person’s becoming a Restricted Subsidiary
or such acquisition of property, (ii) each such Lien shall extend solely to
the item or items of property so acquired and, if required by the terms of
the
instrument originally creating such Lien, other property which is an improvement
to or is acquired for specific use in connection with such acquired property,
-24-
and
(iii) at the time of such incurrence and after giving effect thereto, no
Default or Event of Default would exist;
(i)
any
extensions, renewals or replacements of any Lien permitted by the preceding
subparagraphs (f), (g) and (h) of this Section 10.3, provided
that
(i) no additional property shall be encumbered by such Liens, (ii) the
unpaid principal amount of the Debt or other obligations secured thereby shall
not be increased on or after the date of any extension, renewal or replacement,
and (iii) at such time and immediately after giving effect thereto, no
Default or Event of Default shall have occurred and be continuing;
(j)
Liens
on
accounts receivable of the Company and its Restricted Subsidiaries to the extent
such Liens arise solely by reason of a Permitted Securitization Transaction;
provided
that no
such Lien shall extend to or cover any property of the Company or any Restricted
Subsidiary other than such accounts receivable subject to such Permitted
Securitization Transaction; and
(k)
Liens
securing Priority Debt of the Company or any Restricted Subsidiary, provided
that the
aggregate principal amount of any such Priority Debt shall be permitted by
Section 10.2.
Section 10.4.
Sales
of Assets. The
Company will not, and will not permit any Restricted Subsidiary to, sell, lease
or otherwise dispose of any substantial part (as defined below) of the assets
of
the Company and its Restricted Subsidiaries; provided,
however,
that the
Company or any Restricted Subsidiary may sell, lease or otherwise dispose of
assets constituting a substantial part of the assets of the Company and its
Restricted Subsidiaries if such
assets
are sold in an arms length transaction and, at such time and after giving effect
thereto, no Default or Event of Default shall have occurred and be continuing
and an amount equal to the net proceeds received from such sale, lease or other
disposition (but only with respect to that portion of such assets that exceeds
the definition of “substantial part” set forth below) shall be used within 365
days of such sale, lease or disposition, in any combination:
(1)
to
acquire productive assets used or useful in carrying on the business of the
Company and its Restricted Subsidiaries and having a value at least equal to
the
value of such assets sold, leased or otherwise disposed of; and/or
(2)
to
prepay
or retire Senior Debt of the Company and/or its Restricted Subsidiaries,
provided
that the
Company shall offer to prepay a portion of the Notes on a pro rata basis in
accordance with Section 8.4 hereof.
As
used
in this Section 10.4, a sale, lease or other disposition of assets shall be
deemed to be a “substantial
part”
of the
assets of the Company and its Restricted Subsidiaries if the book value of
such
assets, when added to the book value of all other assets sold, leased or
otherwise disposed of by the Company and its Restricted Subsidiaries during
the
period of 12 consecutive months ending on the date of such sale, lease or other
disposition, exceeds 10% of the book value of Consolidated Total Assets,
determined as of the end of the fiscal quarter immediately
-25-
preceding
such sale, lease or other disposition;
provided
that
there shall be excluded from any determination of a “substantial part” any
(i) sale or disposition of assets in the ordinary course of business of the
Company and its Restricted Subsidiaries, (ii) any transfer of assets from
the Company to any Restricted Subsidiary or from any Restricted Subsidiary
to
the Company or a Restricted Subsidiary and (iii) any sale or transfer of
property acquired by the Company or any Restricted Subsidiary after the date
of
this Agreement to any Person within 365 days following the acquisition or
construction of such property by the Company or any Restricted Subsidiary if
the
Company or a Restricted Subsidiary shall concurrently with such sale or
transfer, lease such property, as lessee. For purposes of clarification, the
sale by the Company or any Restricted Subsidiary of accounts receivable to
any
Person (other than the Company or any Restricted Subsidiary) pursuant to a
Permitted Securitization Transaction shall be included in the determination
of a
“substantial part.”
Section 10.5.
Merger
and Consolidation.
The
Company will not, and will not permit any of its Restricted Subsidiaries to,
consolidate with or merge with any other Person or convey, transfer or lease
substantially all of its assets in a single transaction or series of
transactions to any Person; provided
that:
(1)
any
Restricted Subsidiary of the Company may (x) consolidate with or merge
with, or convey, transfer or lease substantially all of its assets in a single
transaction or series of transactions to, (i) the Company or a Restricted
Subsidiary so long as in any merger or consolidation involving the Company,
the
Company shall be the surviving or continuing corporation or (ii) any other
Person so long as the survivor is the Restricted Subsidiary, or (y) convey,
transfer or lease all of its assets in compliance with the provisions of
Section 10.4; and
(2)
the
foregoing restriction does not apply to the consolidation or merger of the
Company with, or the conveyance, transfer or lease of substantially all of
the
assets of the Company in a single transaction or series of transactions to,
any
Person so long as:
(a)
the
successor formed by such consolidation or the survivor of such merger or the
Person that acquires by conveyance, transfer or lease substantially all of
the
assets of the Company as an entirety, as the case may be (the “Successor
Corporation”),
shall
be a solvent entity organized and existing under the laws of the United States
of America, any State thereof or the District of Columbia;
(b)
if
the
Company is not the Successor Corporation, such Successor Corporation shall
have
executed and delivered to each holder of Notes its assumption of the due and
punctual performance and observance of each covenant and condition of this
Agreement and the Notes (pursuant to an assumption agreement substantially
in
the form attached hereto as Exhibit 10.5), and the Successor Corporation shall
have caused to be delivered to each holder of Notes (A) an opinion of
nationally recognized independent counsel, to the effect that all agreements
or
instruments effecting such assumption are enforceable in accordance with their
terms and (B) an acknowledgment from each Subsidiary Guarantor that the
Subsidiary Guaranty continues in full force and effect; and
-26-
(c)
immediately
after giving effect to such transaction no Default or Event of Default would
exist.
Section 10.6.
Transactions
with Affiliates.
The
Company will not and will not permit any Restricted Subsidiary to enter into
directly or indirectly any Material transaction or Material group of related
transactions (including without limitation the purchase, lease, sale or exchange
of properties of any kind or the rendering of any service) with any Affiliate
(other than the Company or a Restricted Subsidiary), except in the ordinary
course and upon fair and reasonable terms that are not materially less favorable
to the Company or such Restricted Subsidiary, taken as a whole, than would
be
obtainable in a comparable arm’s-length transaction with a Person not an
Affiliate.
Section 10.7.
Terrorism Sanctions Regulations.
The
Company will not and will not permit any Subsidiary to (a) become a Person
described or designated in the Specially Designated Nationals and Blocked
Persons List of the Office of Foreign Assets Control or in Section 1 of the
Anti-Terrorism Order or (b) knowingly engage in any dealings or
transactions with any such Person.
Section 10.8.
Line
of Business.
The
Company will not and will not permit any Restricted Subsidiary to engage in
any
business if, as a result, the general nature of the business in which the
Company and its Restricted Subsidiaries, taken as a whole, would then be engaged
would be substantially changed from the general nature of the business in which
the Company and its Restricted Subsidiaries, taken as a whole, are engaged
on
the date of this Agreement.
|
Section 11.
|
Events
of Default.
|
An
“Event
of Default”
shall
exist if any of the following conditions or events shall occur and be
continuing:
(a)
the
Company defaults in the payment of any principal or Make-Whole Amount, if any,
on any Note when the same becomes due and payable, whether at maturity or at
a
date fixed for prepayment or by declaration or otherwise; or
(b)
the
Company defaults in the payment of any interest on any Note for more than five
Business Days after the same becomes due and payable; or
(c)
the
Company defaults in the performance of or compliance with any term contained
in
Section 10 or any Subsidiary Guarantor defaults in the performance of or
compliance with any term of the Subsidiary Guaranty in each case beyond any
period of grace or cure period provided with respect thereto; or
(d)
the
Company defaults in the performance of or compliance with any term contained
herein (other than those referred to in paragraphs (a), (b) and (c) of this
Section 11) and such default is not remedied within 30 days after the
earlier of (i) a Responsible Officer obtaining actual knowledge of such
default or (ii) the Company receiving written notice of such default from
any holder of a Note (any such written
-27-
notice
to
be identified as a “notice of default” and to refer specifically to this
paragraph (d) of Section 11); or
(e)
any
Subsidiary Guaranty ceases to be a legally valid, binding and enforceable
obligation or contract of a Subsidiary Guarantor (other than upon a release
of
any Subsidiary Guarantor from a Subsidiary Guaranty in accordance with the
terms
of Section 2.2(b) hereof), or any Subsidiary Guarantor or any party by,
through or on account of any such Person, challenges the validity, binding
nature or enforceability of any such Subsidiary Guaranty; or
(f)
any
representation or warranty made in writing by or on behalf of the Company or
any
Subsidiary Guarantor in this Agreement or any Subsidiary Guaranty or by any
officer of the Company or any Subsidiary Guarantor in any writing furnished
in
connection with the transactions contemplated hereby or by any Subsidiary
Guaranty proves to have been false or incorrect in any material respect on
the
date as of which made; or
(g)
(i) the
Company or any Restricted Subsidiary is in default (as principal or as guarantor
or other surety) in the payment of any principal of or premium or make-whole
amount or interest (in the payment amount of at least $100,000) on any Debt
other than the Notes that is outstanding in an aggregate principal amount of
at
least $15,000,000 beyond any period of grace provided with respect thereto,
or
(ii) the Company or any Restricted Subsidiary is in default in the
performance of or compliance with any term of any instrument, mortgage,
indenture or other agreement relating to any Debt other than the Notes in an
aggregate principal amount of at least $15,000,000 or any other condition
exists, and as a consequence of such default or condition such Debt has become,
or has been declared, due and payable, or (iii) as a consequence of the
occurrence or continuation of any event or condition (other than the passage
of
time or the right of the holder of Debt to convert such Debt into equity
interests), the Company or any Restricted Subsidiary has become obligated to
purchase or repay Debt other than the Notes before its regular maturity or
before its regularly scheduled dates of payment in an aggregate outstanding
principal amount of at least $15,000,000; provided
that
no
Default or Event of Default shall exist under this Section 11(g) if any Target
Company defaults in the payment of Due On Sale Debt on the date such Target
Company is acquired by the Company or any Restricted Subsidiary if such Due
On
Sale Debt is repaid in full within 1 Business Day of the date such Target
Company is acquired by the Company or any Restricted Subsidiary; or
(h)
the
Company, any Material Subsidiary or any Subsidiary Guarantor (i) is
generally not paying, or admits in writing its inability to pay, its debts
as
they become due, (ii) files, or consents by answer or otherwise to the
filing against it of, a petition for relief or reorganization or arrangement
or
any other petition in bankruptcy, for liquidation or to take advantage of any
bankruptcy, insolvency, reorganization, moratorium or other similar law of
any
jurisdiction, (iii) makes an assignment for the benefit of its creditors,
(iv) consents to the appointment of a custodian, receiver, trustee or other
officer with similar powers with respect to it or with respect to any
substantial part of its property,
-28-
(v) is
adjudicated as insolvent or to be liquidated, or (vi) takes corporate
action for the purpose of any of the foregoing; or
(i)
a
court
or governmental authority of competent jurisdiction enters an order appointing,
without consent by the Company, any of its Material Subsidiaries or any
Subsidiary Guarantor, 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, any of
its
Material Subsidiaries or any Subsidiary Guarantor, or any such petition shall
be
filed against the Company, any of its Material Subsidiaries or any Subsidiary
Guarantor and such petition shall not be dismissed within 60 days;
or
(j)
a
final
judgment or judgments at any one time outstanding for the payment of money
aggregating in excess of $15,000,000 are rendered against one or more of the
Company, its Restricted Subsidiaries or any Subsidiary Guarantor and which
judgments are not, within 60 days after entry thereof, bonded, discharged or
stayed pending appeal, or are not discharged within 60 days after the expiration
of such stay; or
(k)
if
(i) any Plan shall fail to satisfy the minimum funding standards of ERISA
or the Code for any plan year or part thereof or a waiver of such standards
or
extension of any amortization period is sought or granted under Section 412
of the Code, (ii) a notice of intent to terminate any Plan in an
involuntary or distress termination shall have been filed with the PBGC or
the
PBGC shall have instituted proceedings under Section 4042 of ERISA to
terminate or appoint a trustee to administer any Plan or the PBGC shall have
notified the Company or any ERISA Affiliate that a Plan may become a subject
of
any such proceedings, (iii) the aggregate “amount of unfunded benefit
liabilities” (within the meaning of Section 4001(a)(18) of ERISA) under all
Plans, determined in accordance with Title IV of ERISA, shall exceed
$15,000,000, (iv) the Company or in the case of any ERISA controlled group
liability, any ERISA Affiliate, shall have 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, (v) the Company or any ERISA Affiliate
withdraws from any Multiemployer Plan, or (vi) the Company or any
Subsidiary establishes or amends any employee welfare benefit plan that provides
post-employment welfare benefits in a manner that could increase the liability
of the Company or any Subsidiary thereunder; and any such event or events
described in clauses (i) through (vi) above, either individually or together
with any other such event or events, could reasonably be expected to have a
Material Adverse Effect.
As
used
in Section 11(k), the terms “employee
benefit plan”
and
“employee
welfare benefit plan”
shall
have the respective meanings assigned to such terms in Section 3 of
ERISA.
-29-
|
Section 12.
|
Remedies
on Default, Etc.
|
Section 12.1.
Acceleration.
(a) If an Event of Default with respect to the Company described in
paragraph (h) or (i) of Section 11 (other than an Event of Default
described in clause (i) of paragraph (h) or described in clause (vi) of
paragraph (h) by virtue of the fact that such clause encompasses clause (i)
of
paragraph (h)) has occurred, all the Notes then outstanding shall automatically
become immediately due and payable.
(b)
If
any
other Event of Default has occurred and is continuing, any holder or holders
of
more than 50% in aggregate principal amount of the Notes at the time outstanding
may at any time at its or their option, by notice or notices to the Company,
declare all the Notes then outstanding to be immediately due and
payable.
(c)
If
any
Event of Default described in paragraph (a) or (b) of Section 11 has
occurred and is continuing with respect to any Notes, 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 such holder or holders to be immediately due and
payable.
Upon
any
Note’s becoming due and payable under this Section 12.1, whether
automatically or by declaration, such Note will forthwith mature and the entire
unpaid principal amount of such Note, plus (i) all accrued and unpaid
interest thereon (including, but not limited to, interest accrued thereon at
the
Default Rate) and (ii) the Make-Whole Amount determined in respect of such
principal amount (to the full extent permitted by applicable law), shall all
be
immediately due and payable, in each and every case without presentment, demand,
protest or further notice, all of which are hereby waived. The Company
acknowledges, and the parties hereto agree, that each holder of a Note has
the
right to maintain its investment in the Notes free from repayment by the Company
(except as herein specifically provided for) and that the provision for payment
of a Make-Whole Amount by the Company in the event that the Notes are prepaid
or
are accelerated as a result of an Event of Default, is intended to provide
compensation for the deprivation of such right under such
circumstances.
Section 12.2.
Other
Remedies.
If any
Default or Event of Default has occurred and is continuing, and irrespective
of
whether any Notes have become or have been declared immediately due and payable
under Section 12.1, the holder of any Note at the time outstanding may
proceed to protect and enforce the rights of such holder by an action at law,
suit in equity or other appropriate proceeding, whether for the specific
performance of any agreement contained herein or in any Note, or for an
injunction against a violation of any of the terms hereof or thereof, or in
aid
of the exercise of any power granted hereby or thereby or by law or
otherwise.
Section 12.3.
Rescission.
At any
time after the Notes have been declared due and payable pursuant to
clause (b) or (c) of Section 12.1, the holders of more than 50% in
aggregate principal amount of the Notes then outstanding, by written notice
to
the Company, may rescind and annul any such declaration and its consequences
if
(a) the Company has paid all overdue interest on the Notes, all principal
of and Make-Whole Amount on any Notes that are due and payable and are unpaid
other than by reason of such declaration, and all interest on such overdue
principal and
-30-
Make-Whole
Amount and (to the extent permitted by applicable law) any overdue interest
in
respect of the Notes, at the Default Rate, (b) neither the Company nor any
other Person shall have paid any amounts which have become due solely by reason
of such declaration, (c) all Events of Default and Defaults, other than
non-payment of amounts that have become due solely by reason of such
declaration, have been cured or have been waived pursuant to Section 17,
and (d) no judgment or decree has been entered for the payment of any
monies due pursuant hereto or to any Notes. No rescission and annulment under
this Section 12.3 will extend to or affect any subsequent Event of Default
or Default or impair any right consequent thereon.
Section 12.4.
No
Waivers or Election of Remedies, Expenses, Etc.
No
course of dealing and no delay on the part of any holder of any Note in
exercising any right, power or remedy shall operate as a waiver thereof or
otherwise prejudice such holder’s rights, powers or remedies. No right, power or
remedy conferred by this Agreement or by any Note upon any holder thereof shall
be exclusive of any other right, power or remedy referred to herein or therein
or now or hereafter available at law, in equity, by statute or otherwise.
Without limiting the obligations of the Company under Section 15, the
Company will pay to the holder of each Note on demand such further amount as
shall be sufficient to cover all costs and expenses of such holder incurred
in
any enforcement or collection under this Section 12, including, without
limitation, reasonable attorneys’ fees, expenses and disbursements.
Section 13.
Registration;
Exchange; Substitution of Notes.
Section 13.1.
Registration
of Notes.
The
Company shall keep at its principal executive office a register for the
registration and registration of transfers of Notes. The name and address of
each holder of one or more Notes, each transfer thereof and the name and address
of each transferee of one or more Notes shall be registered in such register.
Prior to due presentment for registration of transfer, the Person in whose
name
any Note shall be registered shall be deemed and treated as the owner and holder
thereof for all purposes hereof, and the Company shall not be affected by any
notice or knowledge to the contrary. The Company shall give to any holder of
a
Note that is an Institutional Investor promptly upon request therefor, a
complete and correct copy of the names and addresses of all registered holders
of Notes.
Section 13.2.
Transfer
and Exchange of Notes.
Subject
to the limitation in Section 13.3, upon surrender of any Note to the
Company at the address and to the attention of the designated officer (all
as
specified in Section 18(iii)), for registration of transfer or exchange
(and in the case of a surrender for registration of transfer accompanied by
a
written instrument of transfer duly executed by the registered holder of such
Note or such holder’s attorney duly authorized in writing and accompanied by the
relevant name, address and other information for notices of each transferee
of
such Note or part thereof), within ten Business Days thereafter, the Company
shall execute and deliver, at the Company’s expense (except as provided below),
one or more new Notes (as requested by the holder thereof) in exchange therefor,
in an aggregate principal amount equal to the unpaid principal amount of the
surrendered Note. Each such new Note shall be payable to such Person as such
holder may request and shall be substantially in the form of the Note originally
issued hereunder. Each such new Note shall be dated and bear interest from
the
date to which interest shall have been paid on the surrendered Note or dated
the
date of the surrendered Note if no interest shall have been paid thereon. The
Company may require
-31-
payment
of a sum sufficient to cover any stamp tax or governmental charge imposed in
respect of any such transfer of Notes. Notes shall not be transferred in
denominations of less than $500,000, provided
that if
necessary to enable the registration of transfer by a holder of its entire
holding of Notes, one Note may be in a denomination of less than $500,000.
Any
transferee, by its acceptance of a Note registered in its name (or the name
of
its nominee), shall be deemed to have (i) agreed to the confidentiality
provisions set forth in Section 20 hereof, (ii) made the representation set
forth in Sections 6.2 and 6.3, provided,
that in
lieu thereof such holder may (in reliance upon information provided by the
Company, which shall not be unreasonably withheld) make a representation to
the
effect that the purchase by any holder of any Note will not constitute a
non-exempt prohibited transaction under section 406(a) of ERISA and (iii)
submitted to jurisdiction and service of process as provided in
Section 22.8 hereof.
The
Notes
have not been registered under the Securities Act or under the securities laws
of any state and the holders agree that the Notes may not be transferred or
resold unless registered under the Securities Act and all applicable state
securities laws or unless an exemption from the requirement for such
registration is available.
Section
13.3. Transfer
Restrictions.
Each
Purchaser agrees that so long as no Default or Event of Default exists, without
the prior written consent of the Company, such Purchaser (and each transferee
by
its acceptance of a Note shall be deemed to have agreed that it) will not
knowingly transfer or assign the Notes to any Person which is, or is known
by
such Purchaser to be controlled by, a Person who has a line of business that
involves consumer packaged food products or personal care products with sales
equal to or greater than $25,000,000 during the 12 months prior to such transfer
or assignment.
Section 13.4.
Replacement
of Notes.
Upon
receipt by the Company at the address and to the attention of the designated
officer (all as specified in Section 18(iii)) of evidence reasonably
satisfactory to it of the ownership of and the loss, theft, destruction or
mutilation of any Note (which evidence shall be, in the case of an Institutional
Investor, notice from such Institutional Investor of such ownership and such
loss, theft, destruction or mutilation), and
(a)
in
the
case of loss, theft or destruction, of indemnity reasonably satisfactory to
it
(provided
that if
the holder of such Note is, or is a nominee for, an original Purchaser or
another holder of a Note with a minimum net worth of at least $50,000,000 or
a
Qualified Institutional Buyer, such Person’s own unsecured agreement of
indemnity shall be deemed to be satisfactory), or
(b)
in
the
case of mutilation, upon surrender and cancellation thereof,
the
Company at its own expense shall execute and deliver not more than five Business
Days following satisfaction of such conditions, in lieu thereof, a new Note,
dated and bearing interest from the date to which interest shall have been
paid
on such lost, stolen, destroyed or mutilated Note or dated the date of such
lost, stolen, destroyed or mutilated Note if no interest shall have been paid
thereon.
-32-
|
Section 14.
|
Payments
on Notes.
|
Section 14.1.
Place
of Payment.
Subject
to Section 14.2, payments of principal, Make-Whole Amount and interest
becoming due and payable on the Notes shall be made in New York,
New York at the principal office of Bank of America, N.A. in such
jurisdiction. The Company may at any time, by notice to each holder of a Note,
change the place of payment of the Notes so long as such place of payment shall
be either the principal office of the Company in such jurisdiction or the
principal office of a bank or trust company in such jurisdiction.
Section 14.2.
Home
Office Payment.
So long
as any Purchaser or such Purchaser’s nominee shall be the holder of any Note,
and notwithstanding anything contained in Section 14.1 or in such Note to
the contrary, the Company will pay all sums becoming due on such Note for
principal, Make-Whole Amount and interest by the method and at the address
specified for such purpose for such Purchaser on Schedule A hereto, or by
such other method or at such other address as such Purchaser shall have from
time to time specified to the Company in writing for such purpose, without
the
presentation or surrender of such Note or the making of any notation thereon,
except that upon written request of the Company made concurrently with or
reasonably promptly after payment or prepayment in full of any Note, such
Purchaser shall surrender such Note for cancellation, reasonably promptly after
any such request, to the Company at its principal executive office or at the
place of payment most recently designated by the Company pursuant to
Section 14.1. Prior to any sale or other disposition of any Note held by
any Purchaser or such Purchaser’s nominee, such Person will, at its election,
either endorse thereon the amount of principal paid thereon and the last date
to
which interest has been paid thereon or surrender such Note to the Company
in
exchange for a new Note or Notes pursuant to Section 13.2. The Company will
afford the benefits of this Section 14.2 to any Institutional Investor that
is the direct or indirect transferee of any Note.
|
Section 15.
|
Expenses,
Etc.
|
Section 15.1.
Transaction
Expenses.
Whether
or not the transactions contemplated hereby are consummated, the Company will
pay all reasonable costs and expenses (including reasonable attorneys’ fees of a
special counsel for the Purchasers and, if reasonably required by the Required
Holders, local or other counsel) incurred by each Purchaser and each other
holder of a Note in connection with such transactions and in connection with
any
amendments, waivers or consents under or in respect of this Agreement or the
Notes (whether or not such amendment, waiver or consent becomes effective),
including, without limitation the reasonable: (a) costs and expenses
incurred in enforcing or defending (or determining whether or how to enforce
or
defend) any rights under this Agreement or the Notes or in responding to any
subpoena or other legal process or informal investigative demand issued in
connection with this Agreement or the Notes, or by reason of being a holder
of
any Note, and (b) costs and expenses, including financial advisors’ fees,
incurred in connection with the insolvency or bankruptcy of the Company or
any
Subsidiary or in connection with any work-out or restructuring of the
transactions contemplated hereby and by the Notes. The Company will pay, and
will save each Purchaser and each other holder of a Note harmless from, all
claims in respect of any fees, costs or expenses if any, of brokers and finders
(other than those, if any, retained by a Purchaser or other holder in connection
with its purchase of the Notes).
-33-
Section 15.2.
Survival.
The
obligations of the Company under this Section 15 will survive the payment
or transfer of any Note, the enforcement, amendment or waiver of any provision
of this Agreement or the Notes, and the termination of this
Agreement.
|
Section 16.
|
Survival
of Representations and Warranties; Entire Agreement.
|
All
representations and warranties contained herein shall survive the execution
and
delivery of this Agreement and the Notes, the purchase or transfer by any
Purchaser of any such Note or portion thereof or interest therein and the
payment of any Note may be relied upon by any subsequent holder of any such
Note, regardless of any investigation made at any time by or on behalf of any
Purchaser or any other holder of any such Note. All statements contained in
any
certificate or other instrument delivered by or on behalf of the Company
pursuant to this Agreement shall be deemed representations and warranties of
the
Company under this Agreement. Subject to the preceding sentence, this Agreement
and the Notes embody the entire agreement and understanding between the
Purchasers and the Company and supersede all prior agreements and understandings
relating to the subject matter hereof.
|
Section 17.
|
Amendment
and Waiver.
|
Section 17.1.
Requirements.
(a)
This Agreement and the Notes may be amended, and the observance of any term
hereof or of the Notes may be waived (either retroactively or prospectively),
with (and only with) the written consent of the Company and the Required
Holders, except that (i) no amendment or waiver of any of the provisions of
Section 1, 2, 3, 4, 5, 6 or 21 hereof, or any defined term (as it is used
in any such Section), will be effective as to any holder of Notes unless
consented to by such holder of Notes in writing, and (ii) no such amendment
or waiver may, without the written consent of all of the holders of Notes at
the
time outstanding affected thereby, (A) subject to the provisions of
Section 12 relating to acceleration or rescission, change the amount or
time of any prepayment or payment of principal of, or reduce the rate or change
the time of payment or method of computation of interest (if such change results
in a decrease in the interest rate) or of the Make-Whole Amount on, the Notes,
(B) change the percentage of the principal amount of the Notes the holders
of which are required to consent to any such amendment or waiver, or
(C) amend any of Section 8, 11(a), 11(b), 12, 17 or 20.
Section 17.2.
Solicitation
of Holders of Notes.
(a)
Solicitation.
The
Company will provide each holder of the Notes (irrespective of the amount of
Notes then owned by it) with sufficient information to enable such holder to
make an informed and considered decision with respect to any proposed amendment,
waiver or consent in respect of any of the provisions hereof or of the Notes.
The Company will deliver executed or true and correct copies of each amendment,
waiver or consent effected pursuant to the provisions of this Section 17 to
each holder of outstanding Notes promptly following the date on which it is
executed and delivered by, or receives the consent or approval of, the requisite
holders of Notes.
(b)
Payment.
The
Company will not directly or indirectly pay or cause to be paid any
remuneration, whether by way of supplemental or additional interest, fee or
otherwise, or grant any security or provide other credit support, to any holder
of Notes as consideration for or as an
-34-
inducement
to the entering into by any holder of Notes of any waiver or amendment of any
of
the terms and provisions hereof unless such remuneration is concurrently paid,
or security is concurrently granted or other credit support is concurrently
provided, on the same terms, ratably to each holder of Notes then outstanding
even if such holder did not consent to such waiver or amendment.
(c)
Consent
in Contemplation of Transfer.
Any
consent made pursuant to this Section 17 by a holder of Notes that has
transferred or has agreed to transfer its Notes to the Company, any Subsidiary
or any Affiliate of the Company and has provided or has agreed to provide such
written consent as a condition to such transfer shall be void and of no force
or
effect except solely as to such holder, and any amendments effected or waivers
granted or to be effected or granted that would not have been or would not
be so
effected or granted but for such consent (and the consents of all other holders
of Notes that were acquired under the same or similar conditions) shall be
void
and of no force or effect except solely as to such holder.
Section 17.3.
Binding
Effect, Etc.
Any
amendment or waiver consented to as provided in this Section 17 applies
equally to all holders of Notes and is binding upon them and upon each future
holder of any Note and upon the Company without regard to whether such Note
has
been marked to indicate such amendment or waiver. No such amendment or waiver
will extend to or affect any obligation, covenant, agreement, Default or Event
of Default not expressly amended or waived or impair any right consequent
thereon. No course of dealing between the Company and the holder of any Note
nor
any delay in exercising any rights hereunder or under any Note shall operate
as
a waiver of any rights of any holder of such Note. As used herein, the term
“this Agreement” and references thereto shall mean this Agreement as it may from
time to time be amended or supplemented.
Section 17.4.
Notes
Held by Company, Etc.
Solely
for the purpose of determining whether the holders of the requisite percentage
of the aggregate principal amount of Notes then outstanding approved or
consented to any amendment, waiver or consent to be given under this Agreement
or the Notes, or have directed the taking of any action provided herein or
in
the Notes to be taken upon the direction of the holders of a specified
percentage of the aggregate principal amount of Notes then outstanding, Notes
directly or indirectly owned by the Company or any of its Affiliates shall
be
deemed not to be outstanding.
|
Section 18.
|
Notices.
|
All
notices and communications provided for hereunder shall be in writing and shall
be effective (a) when delivered, (b) when transmitted by telecopy (or
other facsimile device) if the sender on the same day sends a confirming copy
of
such notice by a recognized overnight delivery service (charges prepaid),
(c) the day following the day on which the same has been delivered to a
recognized overnight delivery service (with charges prepaid) or (d) the third
Business Day following the day on which the same is sent by certified mail
or
registered mail (with charges prepaid). Any such notice must be
sent:
(i)
if
to a
Purchaser or such Purchaser’s nominee, to such Purchaser or such Purchaser’s
nominee at the address specified for such communications in Schedule A to
-35-
this
Agreement, or at such other address as such Purchaser or such Purchaser’s
nominee shall have specified to the Company in writing pursuant to this
Section 18;
(ii)
if
to any
other holder of any Note, to such holder at such address as such other holder
shall have specified to the Company in writing pursuant to this Section 18,
or
(iii)
if
to the
Company, to the Company at its address set forth at the beginning hereof to
the
attention of the Chief Financial Officer, with a copy to the General Counsel
and
a copy (which shall not constitute notice) to Xxxxxx Xxxxxx & Xxxxxxx LLP,
00 Xxxx Xx., Xxx Xxxx, Xxx Xxxx 00000, Attn: Xxxxxxxx X. Xxxxxxxx (facsimile:
212-269-5420), or at such other address as the Company shall have specified
to
the holder of each Note in writing.
|
Section 19.
|
Reproduction
of Documents.
|
This
Agreement and all documents relating thereto, including, without limitation,
(a) consents, waivers and modifications that may hereafter be executed,
(b) documents received by any Purchaser at the Closing (except the Notes
themselves), and (c) financial statements, certificates and other
information previously or hereafter furnished to any Purchaser, may be
reproduced by such Purchaser by any photographic, photostatic, electronic,
digital, or other similar process and such Purchaser may destroy any original
document so reproduced. The Company agrees and stipulates that, to the extent
permitted by applicable law, any such reproduction shall be admissible in
evidence as the original itself in any judicial or administrative proceeding
(whether or not the original is in existence and whether or not such
reproduction was made by such Purchaser in the regular course of business)
and
any enlargement, facsimile or further reproduction of such reproduction shall
likewise be admissible in evidence. This Section 19 shall not prohibit the
Company or any other holder of Notes from contesting any such reproduction
to
the same extent that it could contest the original, or from introducing evidence
to demonstrate the inaccuracy of any such reproduction.
|
Section 20.
|
Confidential
Information.
|
For
the
purposes of this Section 20, “Confidential
Information”
means
information delivered to any Purchaser by or on behalf of the Company or any
Subsidiary in connection with the transactions contemplated by or otherwise
pursuant to this Agreement that is proprietary in nature and that was clearly
marked or labeled or otherwise adequately identified when received by such
Purchaser 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 such Purchaser prior to the time of such disclosure,
(b) subsequently becomes publicly known through no act or omission by such
Purchaser or any Person acting on such Purchaser’s behalf, (c) otherwise
becomes known to such Purchaser other than through disclosure by the Company
or
any Subsidiary or (d) constitutes financial statements delivered to such
Purchaser under Section 7.1 that are otherwise publicly available. Each
Purchaser will maintain the confidentiality of such Confidential Information
in
accordance with procedures adopted by such Purchaser in good faith to protect
confidential information of third parties delivered to such
-36-
Purchaser,
provided
that
such Purchaser may deliver or disclose Confidential Information to (i) such
Purchaser’s directors, trustees, officers, employees, agents, attorneys and
affiliates (to the extent such disclosure reasonably relates to the
administration of the investment represented by such Purchaser’s Notes), such
Purchaser’s financial advisors and other professional advisors, in each case,
who agree to hold confidential the Confidential Information substantially in
accordance with the terms of this Section 20, (ii) any other holder of
any Note, (iii) any Institutional Investor to which such Purchaser sells or
offers to sell such Note or any part thereof or any participation therein (if
such Person has agreed in writing prior to its receipt of such Confidential
Information to be bound by the provisions of this Section 20),
(iv) any federal or state regulatory authority having jurisdiction over
such Purchaser, (v) the National Association of Insurance Commissioners or
any similar organization, or any nationally recognized rating agency that
requires access to information about such Purchaser’s investment portfolio, or
(vi) any other Person to which such delivery or disclosure may be necessary
or appropriate (w) to effect compliance with any law, rule, regulation or
order applicable to such Purchaser, (x) in response to any subpoena or
other legal process, (y) in connection with any litigation to which such
Purchaser is a party or (z) if an Event of Default has occurred and is
continuing, to the extent such Purchaser 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 such Purchaser’s Notes, the
Subsidiary Guaranty and this Agreement. Each holder of a Note, by its acceptance
of a Note, will be deemed to have agreed to be bound by and to be entitled
to
the benefits of this Section 20 as though it were a party to this
Agreement. On reasonable request by the Company in connection with the delivery
to any holder of a Note of information required to be delivered to such holder
under this Agreement or requested by such holder (other than a holder that
is a
party to this Agreement or its nominee), such holder will enter into an
agreement with the Company embodying the provisions of this
Section 20.
|
Section 21.
|
Substitution
of Purchaser.
|
Each
Purchaser shall have the right to substitute any one of its Affiliates as the
purchaser of the Notes that it has agreed to purchase hereunder, by written
notice to the Company, which notice shall be signed by both such Purchaser
and
such Affiliate, shall contain such Affiliate’s agreement to be bound by this
Agreement and shall contain a confirmation by such Affiliate of the accuracy
with respect to it of the representations set forth in Section 6. Upon receipt
of such notice, any reference to such Purchaser in this Agreement (other than
in
this Section 21), shall be deemed to refer to such Affiliate in lieu of such
original Purchaser. In the event that such Affiliate is so substituted as a
Purchaser hereunder and such Affiliate thereafter transfers to such original
Purchaser all of the Notes then held by such Affiliate, upon receipt by the
Company of notice of such transfer, any reference to such Affiliate as a
“Purchaser” in this Agreement (other than in this Section 21), shall no longer
be deemed to refer to such Affiliate, but shall refer to such original
Purchaser, and such original Purchaser shall again have all the rights of an
original holder of the Notes under this Agreement.
|
Section 22.
|
Miscellaneous.
|
Section 22.1.
Successors
and Assigns.
All
covenants and other agreements contained in this Agreement by or on behalf
of
any of the parties hereto bind and inure to the benefit of their
-37-
respective
successors and assigns (including, without limitation, any subsequent holder
of
a Note) whether so expressed or not.
Section 22.2.
Payments
Due on Non-Business Days.
Anything in this Agreement or the Notes to the contrary notwithstanding (but
without limiting the requirement in Section 8.5 that the notice of any
optional prepayment specify a Business Day as the date fixed for such
prepayment), any payment of principal of or Make-Whole Amount or interest on
any
Note that is due on a date other than a Business Day shall be made on the next
succeeding Business Day without including the additional days elapsed in the
computation of the interest payable on such next succeeding Business Day;
provided that if the maturity date of any Note is a date other than a Business
Day, the payment otherwise due on such maturity date shall be made on the next
succeeding Business Day and shall include the additional days elapsed in the
computation of interest payable on such next succeeding Business
Day.
Section 22.3.
Accounting
Terms.
All
accounting terms used herein which are not expressly defined in this Agreement
have the meanings respectively given to them in accordance with GAAP. Except
as
otherwise specifically provided herein, (i) all computations made pursuant
to this Agreement shall be made in accordance with GAAP, and (ii) all
financial statements shall be prepared in accordance with GAAP.
Section 22.4.
Severability.
Any
provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall (to the full extent permitted by law) not invalidate or
render unenforceable such provision in any other jurisdiction.
Section 22.5.
Construction.
Each
covenant contained herein shall be construed (absent express provision to the
contrary) as being independent of each other covenant contained herein, so
that
compliance with any one covenant shall not (absent such an express contrary
provision) be deemed to excuse compliance with any other covenant. Where any
provision herein refers to action to be taken by any Person, or which such
Person is prohibited from taking, such provision shall be applicable whether
such action is taken directly or indirectly by such Person.
For
the
avoidance of doubt, all Schedules and Exhibits attached to this Agreement shall
be deemed to be a part hereof.
Section 22.6.
Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
an original but all of which together shall constitute one instrument. Each
counterpart may consist of a number of copies hereof, each signed by less than
all, but together signed by all, of the parties hereto.
Section 22.7.
Governing
Law.
This
Agreement shall be construed and enforced in accordance with, and the rights
of
the parties shall be governed by, the law of the State of New York
excluding choice-of-law principles of the law of such State that would permit
the application of the laws of a jurisdiction other than such
State.
-38-
Section 22.8.
Jurisdiction
and Process; Waiver of Jury Trial.
(a) The
Company and each Purchaser irrevocably submits to the non-exclusive jurisdiction
of any New York State or federal court sitting in the Borough of Manhattan,
The
City of New York, over any suit, action or proceeding arising out of or relating
to this Agreement or the Notes. To the fullest extent permitted by applicable
law, the Company irrevocably waives and agrees not to assert, by way of motion,
as a defense or otherwise, any claim that it is not subject to the jurisdiction
of any such court, any objection that it may now or hereafter have to the laying
of the venue of any such suit, action or proceeding brought in any such court
and any claim that any such suit, action or proceeding brought in any such
court
has been brought in an inconvenient forum.
(b)
The
Company and each Purchaser consent to process being served on it by the Company
or any Purchaser in any suit, action or proceeding of the nature referred to
in
Section 22.8(a) by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid, return receipt
requested, to it at its address specified in Section 18 or at such other
address of which such Person shall then have been notified pursuant to said
Section. The Company and each Purchaser agree that such service upon receipt
(i) shall be deemed in every respect effective service of process upon it
in any such suit, action or proceeding and (ii) shall, to the fullest
extent permitted by applicable law, be taken and held to be valid personal
service upon and personal delivery to it. Notices hereunder shall be
conclusively presumed received as evidenced by a delivery receipt furnished
by
the United States Postal Service or any reputable commercial delivery
service.
(c)
Nothing
in this Section 22.8 shall affect the right of the Company or any holder of
a Note to serve process in any manner permitted by law, or limit any right
that
the holders of any of the Notes may have to bring proceedings against the
Company in the courts of any appropriate jurisdiction or to enforce in any
lawful manner a judgment obtained in one jurisdiction in any other
jurisdiction.
(d)
The
parties hereto hereby waive trial by jury in any action brought on or with
respect to this Agreement, the Notes or any other document executed in
connection herewith or therewith.
(e)
Each
holder of a Note, by its acceptance of a Note, will be deemed to be bound by
and
to be entitled to the benefits of this Section 22.8 as though it were a party
to
this Agreement.
*
* * *
*
-39-
The
execution hereof by the Purchasers shall constitute a contract among the Company
and the Purchasers for the uses and purposes hereinabove set forth. This
Agreement may be executed in any number of counterparts, each executed
counterpart constituting an original but all together only one
agreement.
Very
truly yours,
The
Hain
Celestial Group, Inc.
By
/s/
Xxx X. Xxxxx
Name: Xxx
X.
Xxxxx
Title: Executive
Vice President and Chief
Financial Officer
Accepted
as of the first date written above.
ING
Life
Insurance and Annuity Company
ING
USA
Annuity and Life Insurance Company
ReliaStar
Life Insurance Company
ReliaStar
Life Insurance Company of New York
By: ING
Investment Management LLC, as Agent
By
/s/
Xxxxx X. Xxxxxxx
Name:
Xxxxx X. Xxxxxxx
Title:
Senior Vice President
Accepted
as of the first date written above.
The
Guardian Life Insurance Company of America
By
/s/
Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title:
Director, Fixed Income
Berkshire
Life Insurance Company of America
By
/s/
Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title:
Director, Fixed Income
Accepted
as of the first date written above.
United
of
Omaha Life Insurance Company
By
/s/
Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
Companion
Life Insurance Company
By
/s/
Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Authorized Signer
Accepted
as of the first date written above.
Modern
Woodmen of America
By
/s/
W.
Xxxxx Xxxxxx
Name: W. Xxxxx Xxxxxx
Title:
President & CEO
Accepted
as of the first date written above.
Life
Insurance Company of the Southwest
By
/s/
J.
Xxxxxxx Xxxxxxx, Jr.
Name: J. Xxxxxxx Xxxxxxx, Jr.
Title: Vice President
Accepted
as of the first date written above.
The
Travelers Indemnity Company
By
/s/
Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
Accepted
as of the first date written above.
American
International Life Assurance Company of New York
First
SunAmerica Life Insurance Company
Merit
Life Insurance Co.
The
United States Life Insurance Company in the City of New York
The
Variable Annuity Life Insurance Company
By: AIG
Global Investment Corp., investment adviser
By
/s/
Xxxxx XxXxxxx
Name:
Xxxxx XxXxxxx
Title:
Vice President
Accepted
as of the first date written above.
AgFirst
Farm Credit Bank
By
/s/
R.
Xxxxx Xxxxxxx
Name: R.
Xxxxx
Xxxxxxx
Title: Vice
President
Sentinel Asset Management
Defined
Terms
As
used
herein, the following terms have the respective meanings set forth below or
set
forth in the Section hereof following such term:
“Acquisition
Debt”
means
any Debt incurred in connection with the acquisition by the Company or any
Restricted Subsidiary of any Person or line of business, provided,
that,
at such time and after giving effect to such acquisition, the Company and its
Restricted Subsidiaries are in compliance with Section 10.8.
“Affiliate”
means,
at any time, and with respect to any Person, (a) any other Person that at
such time directly or indirectly through one or more intermediaries Controls,
or
is Controlled by, or is under common Control with, such first Person, and
(b) any Person beneficially owning or holding, directly or indirectly, 10%
or more of any class of voting or equity interests of the Company or any
Subsidiary or any Person of which the Company and its Subsidiaries beneficially
own or hold, in the aggregate, directly or indirectly, 10% or more of any class
of voting or equity interests. As used in this definition, “Control”
means
the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise. Unless the context
otherwise clearly requires, any reference to an “Affiliate”
is a
reference to an Affiliate of the Company.
“Anti-Terrorism
Order”
means
Executive Order No. 13,224 of September 24, 2001, Blocking Property and
Prohibiting Transactions with Persons Who Commit, Threaten to Commit or Support
Terrorism, 66 U.S. Fed. Reg. 49, 079 (2001), as amended.
“Applicable
Interest Rate”
means
either (a) 5.98% per annum, or (b) 6.23% per annum during the
applicable period in which the Consolidated Debt to Consolidated EBITDA ratio
exceeds 3.50 to 1.0 in accordance with the terms of Section 1.2(b).
“Bank
Credit Agreement”
means
the Amended and Restated Credit Agreement dated as of May 2, 2006 by and
among the Company, certain Subsidiaries of the Company named therein, Bank
of
America, N.A., as administrative agent, and the other financial institutions
party thereto, as amended, restated, joined, supplemented or otherwise modified
from time to time, and any renewals, extensions or replacements thereof, which
constitute the primary bank credit facility of the Company and its
Subsidiaries.
“Business
Day”
means
any day other than a Saturday, a Sunday or a day on which commercial banks
in
New York, New York are required or authorized to be closed.
“Capital
Lease”
means,
at any time, a lease with respect to which the lessee is required concurrently
to recognize the acquisition of an asset and the incurrence of a liability
in
accordance with GAAP.
“Capital
Lease Obligation”
means,
with respect to any Person and a Capital Lease, the amount of the obligation
of
such Person as the lessee under such Capital Lease which would, in accordance
with GAAP, appear as a liability on a balance sheet of such Person.
“Closing”
is
defined in Section 3.
“Code”
means
the Internal Revenue Code of 1986, as amended from time to time, and the rules
and regulations promulgated thereunder from time to time.
“Company”
means
The Hain Celestial Group, Inc., a Delaware corporation.
“Confidential
Information”
is
defined in Section 20.
“Consolidated
Debt”
means as
of any date of determination the total amount of all Debt of the Company and
its
Restricted Subsidiaries determined on a consolidated basis in accordance with
GAAP.
“Consolidated
EBITDA”
shall
mean, for any period, Consolidated Net Income for such period, plus, to the
extent deducted in computing such Consolidated Net Income and without
duplication, (a) depreciation, depletion, if any, and amortization expense
for such period, (b) Consolidated Interest Expense for such period,
(c) income tax expense for such period, (d) other non cash charges for
such period, (e) reasonable and customary acquisition or merger charges,
restructuring charges that are both non cash and non-recurring and impairment
of
assets write-offs that are both non cash and non-recurring, (f) reasonable
and customary charges which arise from the existence and subsequent write-off
of
duplicative facilities related directly an acquisition consummated by the
Company or any Restricted Subsidiaries, and (g) cumulative non cash change
in accounting effects or non cash extraordinary items, and minus the sum of
(y) all extraordinary or unusual gains, and (z) all interest income
all as determined in accordance with GAAP. For purposes of calculating
Consolidated EBITDA for any period of four consecutive quarters, if during
such
period the Company or any Restricted Subsidiary shall have acquired or disposed
of any Person or acquired or disposed of all or substantially all of the
operating assets of any Person, Consolidated EBITDA for such period shall be
calculated after giving pro forma effect thereto as if such transaction occurred
on the first day of such period.
“Consolidated
Interest Expense”
shall
mean, for any period, the gross interest expense of the Company and its
Restricted Subsidiaries deducted in the calculation of Consolidated Net Income
for such period, determined on a consolidated basis in accordance with
GAAP.
“Consolidated
Net Income”
shall
mean, for any period, the consolidated net income (or loss) of the Company
and
its Restricted Subsidiaries for such period, determined on a consolidated basis
in accordance with GAAP.
“Consolidated
Net Worth” shall
mean the consolidated stockholder’s equity of the Company and its Restricted
Subsidiaries, as defined according to GAAP.
“Consolidated
Total Assets”
means,
as of any date of determination, the total amount of all assets of the Company
and its Restricted Subsidiaries, determined on a consolidated basis in
accordance with GAAP.
“Debt” means,
with respect to any Person, without duplication,
(a)
its
liabilities for borrowed money;
(b)
its
liabilities for the deferred purchase price of property acquired by such Person
(excluding accounts payable and other accrued liabilities arising in the
ordinary course of business but including, without limitation, all liabilities
created or aris-ing under any conditional sale or other title retention
agreement with respect to any such property);
(c)
its
Capital Lease Obligations;
(d)
its
liabilities for borrowed money secured by any Lien with respect to any property
owned by such Person (whether or not it has assumed or otherwise become liable
for such liabilities); and
(e)
Guarantees
by such Person with respect to liabilities of a type described in any of clauses
(a) through (d) hereof.
Debt
of
any Person shall include all obligations of such Person of the character
described in clauses (a) through (e) to the extent such Person remains legally
liable in respect thereof notwithstanding that any such obligation is deemed
to
be extinguished under GAAP.
“Default”
means an
event or condition the occurrence or existence of which would, with the lapse
of
time or the giving of notice or both, become an Event of Default.
“Default
Rate”
means
with respect to the Notes that rate of interest that is 2% per annum above
the
Applicable Interest Rate.
“Due
On Sale Debt”
means
any Debt of a Person being acquired by the Company or a Restricted Subsidiary
that becomes due as a result of the consummation of such acquisition by the
Company or a Restricted Subsidiary.
“Environmental
Law”
shall
mean any applicable law, ordinance, rule, regulation, or policy having the
force
of law of any Governmental Authority relating to pollution or protection of
the
environment or to the use, handling, transportation, treatment, storage,
disposal, release or discharge of Hazardous Materials, including, without
limitation, the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended (42 U.S.C. Section 9601, et seq.), the Hazardous
Materials Transportation Act, as amended (49 U.S.C. Sections 1801, et
seq.), the Resource Conservation and Recovery Act, as amended (42 U.S.C.
Sections 6901, et seq.), and the rules and regulations promulgated pursuant
thereto.
“ERISA”
means
the Employee Retirement Income Security Act of 1974, as amended from time to
time, and the rules and regulations promulgated thereunder from time to time
in
effect.
“ERISA
Affiliate”
means
any trade or business (whether or not incorporated) that is treated as a single
employer together with the Company under section 414 of the
Code.
“Event
of Default”
is
defined in Section 11.
“Exchange
Act”
means
the Securities Exchange Act of 1934, as amended.
“Fair
Market Value” means,
at
any time and with respect to any property, the sale value of such property
that
would be realized in an arm’s-length sale at such time between an informed and
willing buyer and an informed and willing seller (neither being under a
compulsion to buy or sell), as reasonably determined in the good faith opinion
of the Company’s board of directors.
“GAAP”
means
those generally accepted accounting principles as in effect from time to time
in
the United States of America; provided that, if the Company notifies the
Required Holders that the Company wishes to amend any negative covenants (or
any
definition hereof) to eliminate the effect of any change in generally accepted
accounting principles on the operation of such covenant or definition, then
the
Company's compliance with such covenant or the meaning of such definition shall
be determined on the basis of generally accepted accounting principles in effect
immediately before the relevant change in generally accepted accounting
principles became effective, until either such notice is withdrawn or such
covenant is amended in a manner satisfactory to the Company and the Required
Holders.
“Governmental
Authority”
means
(a)
the
government of
(i)
the
United States of America or any state or other political subdivision thereof,
or
(ii)
any
jurisdiction in which the Company or any Restricted Subsidiary conducts all
or
any part of its business, or which has jurisdiction over any properties of
the
Company or any Restricted Subsidiary, or
(b)
any
entity exercising executive, legislative, judicial, regulatory or administrative
functions of, or pertaining to, any such government.
“Government
Obligations”
shall
mean direct obligations of the United States of America or any agency or
instrumentality of the United States of America, the payment or guarantee of
which constitutes a full faith and credit obligation of the United States of
America.
“Guaranty”
means,
with respect to any Person, any obligation (except the endorsement in the
ordinary course of business of negotiable instruments for deposit or collection)
of such Person guaranteeing or in effect guaranteeing any Debt, dividend or
other obligation of any other Person in any manner, whether directly or
indirectly, including (without limitation) obligations incurred through an
agreement, contingent or otherwise, by such Person:
(a)
to
purchase such Debt or obligation or any property constituting security therefor
primarily for the purpose of assuring the owner of such Debt or obligation
of
the ability of any other Person to make payment of the Debt or
obligation;
(b)
to
advance or supply funds (i) for the purchase or payment of such Debt or
obligation, or (ii) to maintain any working capital or other balance sheet
condition or any income statement condition of any other Person or otherwise
to
advance or make available funds for the purchase or payment of such Debt or
obligation;
(c)
to
lease
properties or to purchase properties or services primarily for the purpose
of
assuring the owner of such Debt or obligation of the ability of any other Person
to make payment of the Debt or obligation; or
(d)
otherwise
to assure the owner of such Debt or obligation against loss in respect
thereof.
In
any
computation of the Debt or other liabilities of the obligor under any Guaranty,
the Debt or other obligations that are the subject of such Guaranty shall be
assumed to be direct obligations of such obligor, provided
that the
amount of such Debt outstanding for purposes of this Agreement shall not exceed
the maximum amount of Debt that is the subject of such Guaranty.
“Hazardous
Materials”
shall
mean any explosives, radioactive materials, or other materials, wastes,
substances, or chemicals regulated as toxic or hazardous or as a pollutant,
contaminant or waste under any applicable Environmental Law.
“holder”
means,
with respect to any Note, the Person in whose name such Note is registered
in
the register maintained by the Company pursuant to
Section 13.1.
“Institutional
Investor”
means
(a) any original purchaser of a Note, (b) any holder of more than
$2,000,000 of the aggregate principal amount of the Notes then outstanding,
and
(c) any bank, trust company, savings and loan association or other
financial institution, any pension plan, any investment company, any insurance
company, any broker or dealer, or any other similar financial institution or
entity, regardless of legal form.
“Intellectual
Property”
is
defined in Section 5.11.
“Investments”
shall
mean all investments, in cash or by delivery of property made, directly or
indirectly in any Person, whether by acquisition of shares of capital stock,
Debt or other obligations or securities or by loan, advance, capital
contribution or otherwise.
ÒLienÓ
means
any
mortgage, pledge, security interest, hypothecation, assignment, deposit
arrangement, encumbrance, or preference, priority or other security agreement
or
preferential arrangement of any kind or nature whatsoever (including, without
limitation, any conditional sale or other title retention agreement, any Capital
Lease and any financing lease having substantially the same economic effect
as
any of the foregoing).
“Make-Whole
Amount”
shall
have the meaning set forth in Section 8.7 with respect to any
Note.
“Material”
means
material in relation to the business, operations, affairs, financial condition,
assets or properties of the Company and its Restricted Subsidiaries taken as
a
whole.
“Material
Adverse Effect”
means a
material adverse effect on (a) the business, operations, financial
condition, assets or properties of the Company and its Restricted Subsidiaries
taken as a whole, or (b) the ability of the Company to perform its
obligations under this Agreement and the Notes, (c) the ability of any
Subsidiary Guarantor to perform its obligations under the Subsidiary Guaranty
or
(d) the validity or enforceability of this Agreement, the Notes or the
Subsidiary Guaranty.
“Material
Subsidiary” means,
at
any time, any Restricted Subsidiary of the Company which, together with all
other Restricted Subsidiaries of such Restricted Subsidiary, accounts for more
than (i) 5% of the consolidated assets of the Company and its Restricted
Subsidiaries or (ii) 5% of consolidated revenue of the Company and its
Restricted Subsidiaries.
“Memorandum”
is
defined in Section 5.3.
“Moody’s”
shall
mean Xxxxx Investors Service, Inc.
“Multiemployer
Plan”
means
any Plan that is a “multiemployer plan” (as such term is defined in
Section 4001(a)(3) of ERISA).
“Notes”
is
defined in Section 1 of this Agreement.
“Officer’s
Certificate”
means a
certificate of a Senior Financial Officer or of any other officer of the Company
whose responsibilities extend to the subject matter of such
certificate.
“PBGC”
means
the Pension Benefit Guaranty Corporation referred to and defined in ERISA or
any
successor thereto.
“Permitted
Securitization Transaction”
means
any transaction or group of transactions typically referred to as a
securitization in which the Company or any Restricted Subsidiary sells, directly
or indirectly through another Person, its accounts receivable on a limited
recourse basis (i.e.,
other
than for recourse relating to, e.g.,
certain
bad acts or breaches of representations or warranties) provided
that
(i) each such transaction is treated as a legal true sale to a special
purpose bankruptcy remote entity that obtains debt financing to finance the
purchase price, and (ii) each such transaction qualifies as a sale under
GAAP.
“Person”
means an
individual, partnership, corporation, limited liability company, association,
trust, unincorporated organization, or a government or agency or political
subdivision thereof.
“Plan”
means an
“employee benefit plan” (as defined in Section 3(3) of ERISA) that is or,
within the preceding five years, has been established or maintained, or to
which
contributions are or, within the preceding five years, have been made or
required to be made, by the Company or any ERISA Affiliate or with respect
to
which the Company or any ERISA Affiliate may have any liability.
“Priority
Debt”
means
(without duplication), as of the date of any determination thereof, the sum
of
(i) all unsecured Debt of Restricted Subsidiaries (including all Guaranties
of Debt of the Company but excluding (x) Debt owing to the Company or any
Restricted Subsidiary, (y) Debt outstanding at the time such Person became
a Restricted Subsidiary (other than an Unrestricted Subsidiary which is
designated as a Restricted Subsidiary pursuant to Section 9.6 hereof),
provided that such Debt shall have not been incurred in contemplation of such
person becoming a Restricted Subsidiary, and (z) all Guaranties of Debt of
the Company by any Restricted Subsidiary which has also guaranteed the Notes
and
(ii) all Debt of the Company and its Restricted Subsidiaries secured by
Liens other than Debt secured by Liens permitted by subparagraphs (a)
through (k), inclusive, of Section 10.3.
“property”
or
“properties”
means,
unless otherwise specifically limited, real or personal property of any kind,
tangible or intangible, xxxxxx or inchoate.
“Purchasers”
means
the purchasers of the Notes named in Schedule A hereto.
“QPAM
Exemption”
means
Prohibited Transaction Class Exemption 84-14 issued by the United States
Department of Labor.
“Qualified
Institutional Buyer” means
any
Person who is a qualified institutional buyer within the meaning of such term
as
set forth in Rule 144(a)(1) under the Securities Act.
“Ratable
Portion”
means,
with respect to any Note, an amount equal to the product of (x) the amount
equal
to the net proceeds being so applied to the prepayment of Senior Debt in
accordance with Section 10.4(2), multiplied by (y) a fraction the numerator
of which is the outstanding principal amount of such Note and the denominator
of
which is the aggregate principal amount of Senior Debt of the Company and its
Restricted Subsidiaries being prepaid pursuant to Sections 8.4
and 10.4(2).
“Required
Holders”
means,
at any time, the holders of more than 50% in principal amount of the Notes
at
the time outstanding (exclusive of Notes then owned by the Company or any of
its
Affiliates and any Notes held by parties who are contractually required to
abstain from voting with respect to matters affecting the holders of the
Notes).
“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.
“Restricted
Subsidiary”
means
any Subsidiary in which: (i) at least a majority of the voting securities are
owned by the Company and/or one or more Restricted Subsidiaries and
(ii) the Company has not designated an Unrestricted Subsidiary by notice in
writing given to the holders of the Notes.
“S&P”
means
Standard & Poor’s Ratings Group, a division of The XxXxxx-Xxxx Companies,
Inc.
“Securities
Act”
means
the Securities Act of 1933, as amended from time to time.
“Senior
Debt”
means,
as of the date of any determination thereof, all Consolidated Debt, other than
Subordinated Debt.
“Senior
Financial Officer”
means
the chief financial officer, principal accounting officer, treasurer or
comptroller of the Company.
“Subordinated
Debt”
means
all unsecured Debt of the Company which shall contain or have applicable thereto
subordination provisions providing for the subordination thereof to other Debt
of the Company (including, without limitation, the obligations of the Company
under this Agreement).
“Subsidiary”
means,
as to any Person, any corporation, association or other business entity in
which
such Person or one or more of its Subsidiaries or such Person and one or more
of
its Subsidiaries owns sufficient equity or voting interests to enable it or
them
(as a group) ordinarily, in the absence of contingencies, to elect a majority
of
the directors (or Persons performing similar functions) of such entity, and
any
partnership or joint venture if more than a 50% interest in the profits or
capital thereof is owned by such Person or one or more of its Subsidiaries
or
such Person and one or more of its Subsidiaries (unless such partnership can
and
does ordinarily take major business actions without the prior approval of such
Person or one or more of its Subsidiaries). Unless the context otherwise clearly
requires, any reference to a “Subsidiary” is a reference to a Subsidiary of the
Company.
“Subsidiary
Guarantor”
means
each Subsidiary which is party to the Subsidiary Guaranty.
“Subsidiary
Guaranty” is
defined in Section 2.2 of this Agreement.
“Target
Company”
means
any Person that (i) is acquired by the Company or any Restricted Subsidiary
and
is designated as a Restricted Subsidiary on the date such Target Company is
so
acquired, and (ii) is an obligor of any Due On Sale Debt.
“Transition
Period”
means
the period commencing on the date the Company or any Restricted Subsidiary
acquires any Person or line of business, provided
that at
such time and after giving effect thereto the Company and its Restricted
Subsidiaries are in compliance with Section 10.8, and ending on the last day
of
the fourth full fiscal quarter following the date of the consummation of such
acquisition.
“Unrestricted
Subsidiary” means
any
Subsidiary so designated by the Company.
“USA
Patriot Act”
means
United States Public Law 107-56, Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT
ACT)
Act of 2001, as amended from time to time, and the rules and regulations
promulgated thereunder from time to time in effect.
