Exhibit 10.7
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Omega Merger Corp.
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Merger Financing Agreement
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Dated as of June 13, 1997
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CONTENTS
Section Page
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Recital 1. The Merger.......................................................1
Recital 2. The Financing....................................................1
Recital 3. The Transaction Agreements.......................................1
Recital 4. The Closing Transactions.........................................3
4.1 Financing...............................................3
4.2 Merger..................................................3
1. Definitions...............................................................3
2. Sale or Transfer of Securities............................................4
2.1 Sale or Transfer............................................4
2.2 Use of Proceeds.............................................4
3. Representations and Warranties of the Purchasers..........................4
3.1 Investment Intent; Related Matters..........................4
3.2 Violation of Other Instruments, etc.........................5
3.3 Filings, etc................................................5
3.4 Authorization...............................................5
3.5 Organization................................................5
4. Representations and Warranties of.........................................5
4.1 Organization, Capitalization, etc...........................5
4.1.1 The Company.......................................5
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4.1.2 Subsidiaries......................................6
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4.1.3 Qualification.....................................6
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4.1.4 Governing Documents...............................6
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4.1.5 Capitalization....................................6
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4.1.6 Certain Commitments...............................6
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4.2 Liabilities.................................................7
4.3.1 Charter and By-laws...............................7
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4.3.2 Transaction Agreements............................7
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4.3.3 Effect of Transactions............................7
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4.4 Litigation..................................................7
4.5 Violation of Other Instruments, etc.........................7
4.6 Filings, etc................................................8
4.7 Representations and Warranties of The Company and Omega.....8
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5. Certain Fees.......................................................................8
5.1 Brokers Fees, etc....................................................8
5.2 Other Expenses of the Transactions...................................8
6. Closing Conditions.................................................................8
6.1 Transaction Agreements, etc..........................................8
6.2 Representations, Warranties and Conditions; Officers' Certificate....9
6.3 The Financing........................................................9
6.4 The Merger...........................................................9
6.5 Legality; Governmental Authorization; Consents, etc..................9
6.6 No Change in Law; Litigation, etc....................................9
6.7 Proper Proceedings..................................................10
6.8 General.............................................................10
7. Covenants.........................................................................10
7.1 Payment of Notes....................................................10
7.2 Certain Tax Matters.................................................10
7.2.1 Allocation of Purchase Price............................10
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7.2.2 Additional Taxes........................................10
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8. Information and Reports to be Furnished...........................................11
8.1 Reports.............................................................11
8.1.1 Annual Statements.......................................11
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8.1.2 Quarterly Reports.......................................12
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8.1.3 Monthly Reports.........................................12
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8.1.4 Officers' Certificates..................................12
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8.1.5 Other Reports...........................................12
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8.1.6 Notice of Litigation, Defaults, etc.....................13
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8.1.7 Notices under Other Agreements..........................13
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8.2 Other Information; Management Rights................................13
9. Defaults..........................................................................14
9.1 Events of Default; Remedies.........................................14
9.2 Annulment of Defaults...............................................16
9.3 Waivers.............................................................17
9.4 Course of Dealing, Waiver Procedure, etc............................17
10. Payment On Securities; Registration; Transfer.....................................17
10.1 Home Office Payment................................................17
10.2 Registration, Transfer and Exchange of Notes.......................18
10.2.1 Notes Register.........................................18
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10.2.2 Transfer...............................................18
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10.2.3 Registration...........................................18
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10.3 Transfer and Exchange of Common Stock..............................18
10.4 Replacement of Securities..........................................19
11. Restrictions On Transfer..........................................................19
11.1 Restrictive Legend.................................................19
11.2 Notice of Proposed Transfer; Opinions of Counsel...................19
11.3 Termination of Restrictions........................................20
12. Definitions Reference Table.......................................................20
13. Additional Definitions............................................................21
14. Expenses, Etc.....................................................................26
15. Limited Liability of Partners.....................................................27
16. Notices...........................................................................27
17. Survival of Covenants.............................................................28
18. Amendments and Waivers............................................................28
19. Consent to Jurisdiction; Jury Trial Waiver........................................28
19.1 Consent to Jurisdiction............................................28
19.2 Waiver of Jury Trial...............................................29
20. Choice of Law; Miscellaneous......................................................29
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SCHEDULES AND EXHIBITS
Schedule I Schedule of Purchasers and Securities
Schedule II Schedule of Addresses and Home Office Payments
Exhibit 2.1(a) Form of Note
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Merger Financing Agreement
This Merger Financing Agreement (the "Agreement") is made as of June 13,
1997, initially among Omega Merger Corp., a Delaware corporation (the"Company")
and each Person listed as a Purchaser on Schedule I hereto (the "Purchasers").
Recitals
Recital 1. The Merger. Omega Holdings, Inc., a Delaware corporation
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("Holdings") has entered into an Agreement and Plan of Merger dated as of April
28, 1997 (as amended, the "Merger Agreement") with the Company and the
stockholders of the Company.
Recital 2. The Financing. The Company and Holdings will obtain funds to
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finance the Merger (the "Financing") in part through the issuance and sale or
exchange hereunder to the Purchasers of the Securities referred to in this
Recital 2 (such securities being sold or transferred to the Purchasers hereunder
being referred to herein as the "Securities") for the aggregate amounts
indicated on Schedule I hereto:
(a) $10 million aggregate principal amount of the Company's 11%
notes due 2007, which shall be guaranteed by Omega Cabinets, Ltd. ("Omega")
as set forth therein (the "Notes"), in substantially the form of Exhibit
2.1(a) hereto.
(b) 61,865 shares of the common stock, $.01 par value per share
(the "Common Stock"), of the Company.
Recital 3. The Transaction Agreements. In order to effect certain of the
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transactions contemplated by this Agreement, the following agreements (together
with the Financing Agreements, collectively, the "Transaction Agreements") have
been, or will be, entered into by the Persons referred to below:
(a) The Stockholders Agreement of even date herewith (the
"Stockholders Agreement") among Holdings, the Purchasers, the Management
Stockholders named therein (the "Management Stockholders") and the other
parties thereto.
(b) The Non-Competition Agreements of even date herewith between
the Company and Persons included in the Senior Management Non-Competition
Agreement, the Management Non-Competition Agreement, the Xxxxx Non-
Competition Agreement, the Stockholder Agreement for Protection of
Proprietary Interests with certain stockholders and former stockholders of
Holdings, and the Stockholder Non-Competition Agreement with Xxxxxx Xxxxxx
and certain members of his family and trusts for their benefit,
respectively.
(c) The 1997 Stock Option Plan of the Company (the "Option Plan").
(d) The stock options to be granted by the Company under the Option
Plan to certain Management Stockholders.
(e) The Credit Agreement of even date herewith (the "Credit
Agreement") among First Bank National Association, as agent and lender (the
"Bank"), the other lenders parties thereto, and Omega, Home Crest
Corporation and Panther Transport, Inc. as borrowers and the other Loan
Documents as defined therein.
(f) The Certificate of Merger of even date herewith (the "Merger
Certificate") of the Company and Holdings to be filed with the Secretary of
State of Delaware, pursuant to which the Company will be merged with and
into Holdings and following which Holdings shall be the surviving
corporation (the "Merger").
(g) The Merger Agreement.
(h) The promissory note of even date herewith in the principal amount
of $3,000,000 (the "Indemnity Note") issued by Holdings pursuant to the
Merger Agreement.
(i) The irrevocable standby letter of credit of even date herewith in
the stated amount of $3,000,000 (the "Indemnity Note Letter of Credit")
issued by the Bank pursuant to the Credit Agreement.
(j) The Senior Subordinated Bridge Loan Agreement (the "Bridge Loan
Agreement") of even date herewith and the Transaction Documents as defined
therein.
(k) The Management Investor Subscription Agreement of even date
herewith (the "Management Subscription Agreement") between Holdings and
each of Xxxxx Xxxxxxxx, Xxx Xxxxxxx, Xxxx Xxxxx, Xxxxx Xxxxxx, Xxx
Xxxxxxxx, Xxxx Xxxxx, Xxxx Xxxxx, Xxxxx Rule, Xxxx Xxxxxx, and Xxxxx
Xxxxxxxxxx.
(l) The Management Agreement of even date herewith among the
Holdings, Omega and BCC Industrial Services, Inc.
(m) The Xxxxxx Put Agreement dated as of the 13th day of June, 1997
between Holdings and Xxxx X. Xxxxxx, Xx.
(n) The Key Put Agreement dated as of the 13th day of June, 1997
between Holdings and Xxxxx X. Key.
(o) The Common Stock Purchase Warrant dated June 13, 1997 issued by
Holdings to BCC Industrial Services, Inc.
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Recital 4. The Closing Transactions. Pursuant to the Transaction Agreements,
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the following transactions will occur, substantially contemporaneously, at the
closing (the "Closing") to be held on June 13, 1997, or such other date as may
be agreed upon by the parties hereto (the "Closing Date") at the offices of
Ropes & Xxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX, 00000, at 9:00 a.m. local time, or
at such other time or place as may be agreed upon by the parties hereto:
4.1 Financing. Pursuant to this Agreement, the Company or Holdings
will issue and sell the Securities, and the Company or Holdings will take such
other actions in connection therewith as may be necessary to consummate the
Financing.
4.2 Merger. Pursuant to the Merger Agreement and the Merger
Certificate, the Company will merge with and into Holdings, with Holdings, as
the surviving corporation. After giving effect to the Merger, the authorized
capital stock of Holdings will consist of 1,000,000 shares of common stock, par
value $.01 per share, of which 72,391.40 shares will be issued and outstanding,
7,322.01 shares will be reserved for issuance under the Option Plan, and
2,391.40 shares will be reserved for the warrant to be issued to BCC Industrial
Services, Inc. ("the ISI Warrant"), and the authorized capital stock of Omega
will consist of 10,000 shares of common stock, $.01 par value per share, all of
which will be issued and outstanding and held of record by the Company. After
giving effect to the Merger, by operation of law and the provisions of the
Merger Agreement and the Merger Certificate, Holdings, as the surviving
corporation of the Merger, will have succeeded to and assumed all the
obligations of, and have succeeded to and been assigned all the rights of, the
Company, and Holdings shall have ceased its separate existence.
Agreement
Now, therefore, the parties hereto hereby agree as follows:
1. Definitions. Certain terms are used in this Agreement as specifically
defined herein. These definitions are referred to in Section 12 hereof or set
forth in Section 13 hereof. Except as the context clearly otherwise requires:
1.1 All defined terms for securities issued or issuable by the Company
or the Company, including without limitation Securities, Notes, ISI Warrant and
Common Stock, shall include any securities issued upon transfer of the
securities in question, and any other securities issued in exchange for the
securities in question.
1.2 Except as the context otherwise specifically requires, following
the consummation of the Merger, the term the Company shall mean Holdings as the
surviving corporation of the Merger.
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1.3 The words "hereof," "herein" and "hereunder" and words of similar
import shall refer to this Agreement as a whole and not to any particular
Section or provision of this Agreement, and references to a particular Section
of this Agreement shall include all subsections thereof.
1.4 Definitions shall be equally applicable to both the singular and
plural forms of the terms defined herein.
2. Sale or Transfer of Securities.
2.1 Sale or Transfer. The Company agrees to sell or cause Holdings to
sell to each Purchaser, and, subject to compliance with all of the terms and
conditions of this Agreement and in reliance on the representations and
warranties set forth in this Agreement, each such Purchaser severally agrees to
purchase from the Company at the Closing, the respective types and amounts of
Securities specified opposite such Purchaser's name on Schedule I. At the
Closing, the Company will, unless otherwise requested, deliver or cause Holdings
to deliver to each Purchaser, with respect to each type of Security being
purchased from it by such Purchaser, a single note (in substantially the form of
Exhibit 2.1(a)) or certificate evidencing the amount of such Security being
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purchased from it by such Purchaser, registered in such Purchaser's name or the
name of any nominee specified by such Purchaser, against a contribution to the
Company or Holdings of the applicable amount of immediately available funds.
2.2 Use of Proceeds. The Company covenants that it will apply or cause
Holdings to apply the proceeds of the Securities to be issued by it on the
Closing Date to finance the Merger, with any balance to be applied to other
lawful corporate purposes. In no event shall the Company or Holdings, directly
or indirectly, apply any part of the proceeds from the sale of any Security
hereunder for the purpose, whether immediate, incidental or ultimate, of buying
or carrying any "margin stock" within the meaning of any regulation,
interpretation or ruling of the Board of Governors of the Federal Reserve
System, all as from time to time in effect or refunding of any Indebtedness
incurred for such purpose.
3. Representations and Warranties of the Purchasers. In order to induce
the Company to enter into this Agreement and to issue or cause Holdings to issue
the Securities, each Purchaser represents and warrants to the Company that:
3.1 Investment Intent; Related Matters. Such Purchaser is acquiring
the Securities to be acquired by it for investment, and not with a view to
selling or otherwise distributing any of such Securities in violation of the
Securities Act; provided, however, that nothing contained herein shall prevent
such Purchaser from transferring the Securities in compliance with Sections 10
and 11 hereof.
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3.2 Violation of Other Instruments, etc. Neither the execution and
delivery of this Agreement or any other Transaction Agreement, nor the
consummation of any of the transactions contemplated hereby or thereby, will (i)
constitute a breach of or a default under any Contractual Obligation of such
Purchaser, (ii) result in acceleration in the time for performance of any
obligation of such Purchaser, (iii) require any unobtained consent, waiver or
amendment to any such Contractual Obligation, or (iv) violate or constitute a
default under or give rise to any other right or cause of action under any Legal
Requirement, except for events or conditions described in clauses (i) through
(iv) above that do not and will not, individually or in the aggregate, have a
Material Adverse Effect.
3.3 Filings, etc. No approval, consent, authorization or other order of,
and no declaration, filing, registration, qualification or recording with, any
governmental authority is required to be made by or on behalf of such Purchaser
in connection with the execution, delivery or performance of this Agreement or
any other Transaction Agreement or the consummation of any of the transactions
contemplated hereby or thereby.
3.4 Authorization. Such Purchaser has the power and authority (including
full partnership power and authority) to execute and deliver this Agreement and
to perform his or its obligations hereunder. All actions or proceedings to be
taken by or on behalf of such Purchaser to authorize and permit the execution
and delivery by such Purchaser of this Agreement and the agreements, documents,
certificates and other instruments required to be executed and delivered by such
Purchaser pursuant hereto, performance by such Purchaser of its obligations
hereunder, and the consummation by such Purchaser of the transactions
contemplated herein, have been duly and properly taken. This Agreement has been
duly executed and delivered by such Purchaser and constitutes the legal, valid
and binding obligation of such Purchaser, enforceable in accordance with its
terms and conditions.
3.5 Organization. Such Purchaser is a partnership duly organized, validly
existing and in good standing under the laws of Delaware.
4. Representations and Warranties of The Company. In order to induce each
Purchaser to enter into this Agreement, and to purchase the Securities to be
purchased or acquired by such Purchaser hereunder, the Company hereby represents
and warrants to each Purchaser that:
4.1 Organization, Capitalization, etc.
4.1 The Company. The Company is a corporation duly organized,
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validly existing and in good standing under the laws of the State of
Delaware. The Company has all requisite power and authority to execute,
deliver and perform this Agreement, each of the other Transaction
Agreements to which it is a party and the Securities to be issued by it, to
perform all the transactions contemplated hereby and thereby and to carry
on the business now conducted or currently proposed to be conducted by it.
The
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Company was formed solely for the purpose of effecting the transactions
contemplated hereby, and its sole business is, and has been from inception,
the effectuation of such transactions. The Company has duly executed and
delivered this Agreement, each other Transaction Agreement to which it is a
party and each Security being issued by it at the Closing, and has taken
all corporate action necessary to authorize each such Transaction Agreement
to which it is a party and each such Security. Each such Transaction
Agreement and each such Security issued by it is Enforceable against the
Company, and upon the consummation of the Merger will be Enforceable
against the Company.
4.1.2 Subsidiaries. Before giving effect to the Merger, the Company
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has no Subsidiaries.
4.1.3 Qualification. The Company is duly qualified to do business
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as a foreign corporation or organization and is in good standing as such in
each jurisdiction in which it is required to be so qualified, except for
failures to be so qualified that could not in the aggregate have any
Material Adverse Effect on the business, operations, assets, prospects or
condition, financial or otherwise, of the Company.
4.1.4 Governing Documents. Copies of the Certificate of
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Incorporation and By-laws of The Company have heretofore been delivered to
the Purchasers and are true, complete and correct. After giving effect to
the Merger, the Certificate of Incorporation of the Company as the
surviving corporation will contain only those provisions contained in the
Certificate of Incorporation of the Company as in effect immediately prior
to the Merger and the By-laws of the Company shall contain only those
provisions contained in the By-laws of the Company as in effect immediately
prior to the Merger.
4.1.5 Capitalization. After giving effect to the Merger, the
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authorized, issued and outstanding capital stock of Holdings as the
surviving corporation will be as set forth in the Merger Certificate.
4.1.6 Certain Commitments. Except as explicitly provided for in
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this Agreement or the Merger Agreement, there is no warrant, right, option,
conversion privilege, stock purchase plan, Charter provision or other
Contractual Obligation that obligates the Company or Holdings to offer,
issue, purchase or redeem any shares of capital stock of the Company or
debt or other securities convertible into or exchangeable for capital stock
(now, in the future or upon the occurrence of any contingency) or that
provides for any stock appreciation or similar right. There is no warrant,
right, option, conversion privilege, stock purchase plan, Charter provision
or other Contractual Obligation that obligates the Company or Holdings to
offer, sell, transfer, exchange, pledge, hypothecate or encumber (now, in
the future or upon the occurrence of any contingency) any of the shares of
capital stock of any Subsidiary of
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the Company or Holdings, except as set forth in this Agreement or the
Merger Agreement.
4.2 Liabilities. The Company has not engaged in any business or entered
into or performed any Contractual Obligations or incurred any expenses or
liabilities since the date of its incorporation except for actions, expenses and
liabilities incident to its organization or carrying out the transactions
specifically contemplated by this Agreement.
4.3 Certain Other Matters
4.3.1 Charter and By-laws. The Company is not in violation of, or
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in default under, any provision of its Charter or By-laws or other similar
organizational documents.
4.3.2 Transaction Agreements. The Company has heretofore furnished
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to each Purchaser complete and correct copies of each of the Transaction
Agreements, including all exhibits, schedules and amendments hereto and
thereto.
4.3.3 Effect of Transactions. The execution and delivery of this
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Agreement and the other Transaction Agreements and the consummation of the
transactions contemplated hereby and thereby will not involve any
prohibited transaction within the meaning of ERISA.
4.4 Litigation. There is no litigation, at law or in equity, or any
proceeding before or investigation by any foreign, federal, state or municipal
board or other governmental or administrative agency or any arbitrator, pending
(nor, to the knowledge of the Company, threatened), nor any basis therefor,
against the Company, including without limitation any of the foregoing that
seeks rescission of, seeks to enjoin the consummation of, or that questions the
validity of, this Agreement or any other Transaction Agreement or any of the
transactions contemplated hereby or thereby. No judgment, decree or order of
any foreign, federal, state or municipal court, board or other governmental or
administrative agency or any arbitrator (i) has been issued against any Person
other than the Company that could have any Material Adverse Effect or (ii) has
been issued against the Company.
4.5 Violation of Other Instruments, etc. Neither the execution and
delivery of this Agreement or any other Transaction Agreement, nor the
consummation of any of the transactions contemplated hereby or thereby, will (i)
constitute a breach of or a default under any Contractual Obligation of the
Company, (ii) result in acceleration in the time for performance of any
obligation of the Company under any such Contractual Obligation, (iii) require
any unobtained consent, waiver or amendment to any such Contractual Obligation,
or (iv) violate or constitute a default under, or give rise to any other right
or cause of action under any Legal Requirement, except for events or conditions
described in clauses (i) through
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(iv) above that do not and will not, individually or in the aggregate, have a
Material Adverse Effect.
4.6 Filings, etc. No approval, consent, authorization or other order of,
and no declaration, filing, registration, qualification or recording with, any
governmental authority is required to be made by or on behalf of the Company in
connection with the execution, delivery or performance of this Agreement or any
other Transaction Agreement or the consummation of any of the transactions
contemplated hereby or thereby, except for the filing of the Merger Certificate.
4.7 Representations and Warranties of The Company and Omega. Each
representation and warranty of the Company and/or Omega in any of the Merger
Agreement, the Credit Agreement or the Bridge Loan Agreement is hereby confirmed
as true and correct as fully as if set forth herein at length.
5. Certain Fees.
5.1 Brokers Fees, etc. Each party hereto represents and warrants to each
other party that, except for the fees payable to Xxxxxxx Sachs & Co. as
described in the Bridge Loan Agreement, no broker's, finder's or placement fee
or commission will be payable to any Person alleged to have been retained by
such representing and warranting party with respect to any of the transactions
contemplated by this Agreement or any of the other Transaction Agreements. Each
party hereto hereby indemnifies each other party against and agrees that it will
hold each other party harmless from any claim, demand or liability, including
reasonable attorneys' fees, for any broker's, finder's or placement fee or
commission alleged to have been incurred by such indemnifying party.
5.2 Other Expenses of the Transactions. The Company represents and
warrants that no expenses, Compensation, fees or commissions will be payable by
the Company or Holdings or its Subsidiaries in connection with the transactions
contemplated by this Agreement or any of the other Transaction Agreements,
except for the fees and expenses described in Sections 5.1 and 14 hereof and
other amounts disclosed in the Merger Agreement, Credit Agreement or Bridge Loan
Agreement.
6. Closing Conditions. The obligation of each Purchaser to purchase any
Securities pursuant to this Agreement shall be subject to the satisfaction,
prior to or substantially contemporaneously with the making of such purchase at
the Closing, of the following conditions, compliance with which, or the
occurrence of which, may be waived in writing in whole or in part by such
Purchaser:
6.1 Transaction Agreements, etc. The Transaction Agreements shall have
been executed in substantially the form previously supplied to the Purchasers,
which shall be reasonably satisfactory in form and substance to such Purchasers,
and each such Transaction
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Agreement shall be in full force and effect, no term or condition thereof having
been amended, modified or waived except with the prior written consent of such
Purchasers. The Charter of the Company shall be in the form previously supplied
to the Purchasers.
6.2 Representations, Warranties and Conditions; Officers' Certificate.
The representations and warranties of the Company contained herein shall be true
and correct in all respects at and as of the Closing with the same force and
effect as though made at and as of the Closing, both before and after giving
effect to each of the Financing and the Merger; at or prior to the Closing, no
material adverse change shall have occurred in the business, operations, assets,
prospects or condition, financial or otherwise, of the Company or Holdings; at
the time of the Closing (and after giving effect to the Financing and the
Merger) no Default or Event of Default shall have occurred; and the Purchasers
shall have received on the Closing Date a certificate of the Company to these
effects and to the effect that the conditions specified in this Section 6 have
been satisfied and that the Company has performed and complied with all
agreements required by this Agreement or any other Transaction Agreement to be
performed or complied with by it prior to or at the Closing, signed by the
President of the Company.
6.3 The Financing. The Company shall have transferred or caused Holdings
to transfer to the Purchasers the Securities to be acquired by them hereunder.
The transactions contemplated by the Credit Agreement, the Bridge Loan Agreement
and the Management Subscription Agreement shall concurrently have been
consummated.
6.4 The Merger. The Merger shall concurrently have been consummated and
become effective in accordance with the terms of the Merger Agreement and the
Merger Certificate; and the Purchasers shall have received evidence, in form and
substance reasonably satisfactory to it, that the Merger Certificate has been
duly filed.
6.5 Legality; Governmental Authorization; Consents, etc. The purchase of,
and exchange or payment for, the Securities to be purchased by such Purchaser
shall not be prohibited by any Legal Requirement applicable to it, and shall not
subject it to any penalty, tax, liability or other onerous condition. All
necessary or advisable consents, approvals, licenses, permits, orders and
authorizations of, or registrations, declarations and filings with, any
governmental or administrative agency or any other Person, including without
limitation consents under and assignments of Contractual Obligations of the
Company or Holdings or its Subsidiaries, with respect to any of the transactions
contemplated by this Agreement or any of the other Transaction Agreements shall
have been obtained or made and shall be in full force and effect.
6.6 No Change in Law; Litigation, etc. No Legal Requirement shall have
been enacted or become effective, nor shall any legislation have been introduced
and favorably reported for passage to either house of Congress or any state
legislature, nor shall have any investigation by any governmental authority or
administrative body been commenced, nor shall
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any decision of any court of competent jurisdiction have been rendered, nor
shall any litigation or other action or proceeding have been commenced, that in
such Purchaser's reasonable judgment could materially and adversely affect,
restrain, prevent or change the transactions contemplated by this Agreement or
any of the other Transaction Agreements or that could otherwise cause a material
adverse change in the business, operations, assets, prospects or condition,
financial or otherwise, of the Company or Holdings.
6.7 Proper Proceedings. All proper proceedings shall have been taken by
each of the parties to this Agreement and the other Transaction Agreements to
authorize such Agreements and the transactions contemplated hereby and thereby.
6.8 General. All instruments and legal and corporate proceedings in
connection with the transactions contemplated by this Agreement and the other
Transaction Agreements shall be reasonably satisfactory in form and substance to
the Purchasers, and the Purchasers shall have received counterpart originals, or
certified or other copies, of all documents, including records of corporate
proceedings and opinions of counsel, that they may have requested in connection
therewith.
7. Covenants. In addition to its other undertakings herein, the Company
covenants that so long as any Security shall remain outstanding it will comply,
and will cause each of its Subsidiaries to comply, with such of the following
provisions as are applicable to it:
7.1 Payment of Notes. The Company will duly and punctually pay the
principal of and premium, if any, and interest on the Notes.
7.2 Certain Tax Matters.
7.2.1 Allocation of Purchase Price. The Company hereby agrees with
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each Purchaser that (i) for the purposes of Sections 1271 through 1275 of
the Code, the assumed price at which each of the Securities would have been
issued had they been issued apart from the investment unit consisting of
Securities is equal to the allocated cost thereof set forth on Schedule I
hereto and that (ii) each such assumed price will be appropriately used by
the Company for income tax purposes.
7.2.2 Additional Taxes. In the event that it is determined that
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original issue discount exists with respect to any Note in an amount
greater than the difference, if any, between the face amount of such Note
and its allocated cost, determined in accordance with Section 7.2.1 hereof,
with the result that the aggregate federal, state or city income taxes, or
interest, penalties or additions to tax payable with respect to such Note
from time to time are in excess of what they would have been otherwise
(such excess being referred to as the "Additional Taxes"), the Company will
pay to each holder or former holder of the Notes, as additional interest,
an amount (the "Tax Compensation Amount") that, after deducting all
federal, state and city taxes required
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to be paid by such holder with respect to the receipt of such amount, shall
be equal to the Additional Taxes of such holder. The Tax Compensation
Amount shall be paid within 30 days after receipt of a written demand
therefor from such holder accompanied by a written statement setting forth
the Additional Taxes and the Tax Compensation Amount payable (which written
statement shall, at the request and expense of the Company, be verified by
such holder's independent certified public accountants). For the purposes
of determining the amount of the Additional Taxes and the Tax Compensation
Amount, it shall be assumed that each holder's federal, state and city
income tax rate is equal to the highest rate for such tax applicable to New
York residents doing business in New York City.
8. Information and Reports to be Furnished.
8.1 Reports. The Company and each of its Subsidiaries will maintain a
system of accounting in which full, true and correct entries will be made of all
dealings and transactions in relation to their business and affairs in
accordance with generally accepted accounting principles, and the Company and
each of its Subsidiaries will set aside on its books all proper reserves
required by generally accepted accounting principles. The fiscal year of the
Company and each of its Subsidiaries ends on or about December 31 each year, and
will not be changed without the written consent of the Majority Holders. The
Company will furnish the following financial statements, notices and other
information to each original Purchaser so long as it holds any of the
Securities:
8.1.1 Annual Statements. The Company will furnish, as soon as
-----------------
available, and in any event within ninety (90) days after the end of each
fiscal year of the Company, the consolidated and consolidating balance
sheets of the Company and its Subsidiaries as at the end of each such
fiscal year and the consolidated (and as to statements of income only,
consolidating) statements of income, cash flows and changes in
stockholders' equity for such year of the Company and its Subsidiaries,
setting forth in each case in comparative form the figures for the next
preceding fiscal year, accompanied by the unqualified report of independent
certified public accountants of recognized national standing reasonably
satisfactory to the Majority Holders, to the effect that such consolidated
financial statements have been prepared in accordance with generally
accepted accounting principles applied on a basis consistent with prior
years and present fairly and in all material respects the financial
condition of the Company and its Subsidiaries at the dates thereof and the
results of their operations and changes in their cash flows and
stockholders' equity for the periods covered thereby, and the statement of
such accountants that such accountants have caused the provisions of this
Agreement and the other Transaction Agreements to be reviewed and that in
the course of their audit of the Company and its Subsidiaries nothing has
come to their attention to lead them to believe that any Default hereunder
or default thereunder exists, or, if such is not the case, specifying such
Default or possible Default and the nature thereof.
-11-
8.1.2 Quarterly Reports. The Company will furnish, as soon as
-----------------
available and in any event within forty-five (45) days after the end of each
fiscal quarter in each fiscal year of the Company, the consolidated and
consolidating balance sheets of the Company and its Subsidiaries as the end of
such quarter and the consolidated (and as to statement of income data only,
consolidating) statements of income, cash flows and changes in stockholders'
equity for such quarter and the portion of the fiscal year then ended of the
Company and its Subsidiaries, setting forth in each case the figures for the
corresponding periods of the previous fiscal year in comparative form, all in
reasonable detail.
8.1.3 Monthly Reports. The Company will furnish, as soon as
---------------
practicable, and in any event within thirty (30) days after the end of each
calendar month in each fiscal year of the Company, consolidated financial
statements of the Company and its Subsidiaries for and as at the end of such
month in the form customarily prepared by management for internal use.
8.1.4 Officers' Certificates. The Company will furnish, together
----------------------
with delivery of financial statements of the Company and its Subsidiaries
pursuant to Sections 8.1.1 and 8.1.2 above, a certificate of the Company and
signed by the President and chief financial officer of each of the Company (i)
to the effect that such statements have been prepared in accordance with
generally accepted accounting principles consistently applied and present fairly
and in all material respects the financial position of the Company and its
Subsidiaries as of the dates thereof and the results of their operations and
cash flows and changes in their stockholders' equity for the periods then ended
(but excluding, in the case of interim financial statements, normal year-end
audit adjustments), and (ii) to the effect that such officers have caused the
provisions of this Agreement, the other Transaction Agreements and the Charter
of the Company and each of its Subsidiaries to be reviewed and have no knowledge
of any Default hereunder or default thereunder, or if either such officer has
such knowledge, specifying such Default or default and the nature thereof, and
what action the Company has taken, is taking or proposes to take with respect
thereto.
8.1.5 Other Reports. The Company will furnish:
-------------
(a) As soon as available, all budgets and projections relating
to the Company or any of its Subsidiaries prepared for use by their
respective boards of directors or management.
(b) With the quarterly statements furnished pursuant to
Section 8.1.2 hereof, comparisons of actual results to budgets and
projections furnished pursuant to Section 8.1.5(a) hereof.
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(c) Promptly upon the Company's receipt thereof, copies of all
audit reports (including without limitation so-called "management
letters") submitted to the Company by independent public accountants
in connection with each annual, interim or special audit of the books
of the Company and its Subsidiaries made by such accountants.
(d) Copies of all information furnished under the Credit
Agreement and the Bridge Loan Agreement simultaneous with the
furnishing thereunder.
8.1.6 Notice of Litigation, Defaults, etc. The Company will
-----------------------------------
promptly give notice of any litigation or any administrative proceeding
(including without limitation any audit by tax authorities) to which they
or any of their Subsidiaries may hereafter become a party that involves a
potential liability equal to or greater than $250,000 (net of any amounts
for which an insurance carrier has acknowledged responsibility), or that
may otherwise result in any material adverse change in the business,
operations, assets, prospects or condition, financial or otherwise, of the
Company and its Subsidiaries. Forthwith upon any officer of the Company or
any Subsidiary obtaining knowledge of any Default hereunder, any default or
event of default under any other Transaction Agreement or under any
agreement relating to Indebtedness for money borrowed or arising under
notes or debentures or in respect of Capitalized Leases or purchase money
obligations, the Company will furnish a notice specifying the nature and
period of existence thereof and what action the Company has taken, is
taking or proposes to take with respect thereto.
8.1.7 Notices under Other Agreements. The Company will furnish
------------------------------
copies of all notices given to them or to any of their Subsidiaries
pursuant to any Transaction Agreement, or under any agreement relating to
Indebtedness for money borrowed or arising under notes or debentures or in
respect of Capitalized Leases or purchase money obligations,
contemporaneously with the receipt thereof, and will furnish copies of all
notices and reports sent by the Company or any of its Subsidiaries pursuant
to any Transaction Agreement or under any such other agreement
contemporaneously with the sending thereof.
8.2 Other Information; Management Rights. From time to time upon request
of any authorized partner, designee or officer of any original Purchaser so long
as it holds any Securities or of any Person holding in the aggregate 10% or more
of the aggregate principal amount of Notes then outstanding or holding 5% or
more of the Common Stock constituting Securities (excluding any such shares that
have been sold in a registered public offering or in a "brokers transaction"
within the meaning of Rule 144) the Company will furnish to such authorized
partner, designee or officer, and their representatives, such information
regarding the business of the Company and its Subsidiaries (including materials
furnished to the directors of the Company and its Subsidiaries at or in
connection with board meetings) as such partner, designee or officer may
reasonably request. Each such partner, designee or officer, and their
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representatives, shall have the right during normal business hours to make an
independent examination of the books and records of the Company or any of its
Subsidiaries, to make copies, notes and abstracts therefrom, and to discuss
their business, affairs and financial condition with the officers, employees and
accountants of the Company. Each such partner, designee or officer shall have
the right during normal business hours to consult with and advise the directors
and executive officers of the Company and its Subsidiaries with respect to major
policy matters, and thereby participate in the management of the Company and its
Subsidiaries; provided, however, that no such partner, designee or officer shall
thereby have any right to direct the management or policies of the Company or
any of its Subsidiaries.
9. Defaults.
9.1 Events of Default; Remedies. If any one or more of the following
events (herein referred to as "Events of Default") shall happen, that is to say:
9.1.1 The Company shall fail to make any payment in respect of (i)
the principal of or premium on any of the Notes as the same shall become
due, whether at maturity or by acceleration or otherwise, or (ii) the
interest on any of the Notes as the same shall become due and such failure
to pay interest shall continue for a period of two (2) business days; or
9.1.2 The Company or any of its Subsidiaries shall fail to perform or
observe any of the provisions of Sections 7 or 8 hereof and such failure
shall not have been rectified or cured to the reasonable satisfaction of
the Majority Holders within thirty (30) days after the occurrence of such
failure; or
9.1.3 The Company or any of its Subsidiaries shall fail to perform or
observe any other covenant, agreement or provision to be performed or
observed by it under this Agreement, any other Financing Agreement or its
Charter, and such failure shall not be rectified or cured to the reasonable
satisfaction of the Majority Holders within thirty (30) days after the
occurrence of such failure; or
9.1.4 Any representation or warranty of the Company contained in or
made at any time in connection with this Agreement or any other Financing
Agreement, including without limitation any representation or warranty
incorporated by reference in any of the foregoing, shall prove (as such
representation or warranty would read if all qualifications as to
materiality or knowledge were deleted from it) to have been false in any
material respect on any date as of which it was made; or
9.1.5 The Company or any of its Subsidiaries shall fail to make any
required payment on any Indebtedness (other than the Notes) of the Company
or any of its Subsidiaries for money borrowed or arising under notes or
debentures or in respect of Capitalized Leases or purchase money
obligations in an aggregate principal amount
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outstanding exceeding $250,000, including without limitation any
Indebtedness under the Credit Agreement or the Bridge Loan Agreement, or
the Company or any of its Subsidiaries shall fail to perform or observe any
of the material covenants or provisions contained in any Contractual
Obligation evidencing, securing, governing or otherwise relating to any
such Indebtedness, or in its Charter, or any other event shall occur or
condition exist, the effect of which failure, event or condition is (or,
with the giving of notice or the passage of time or both, would be) to
cause, or to permit the holders of any such Indebtedness (or a trustee or
agent on behalf of such holders) to cause, any such Indebtedness to become
due prior to its stated maturity, or to permit the holder of any security
to elect (other than by virtue of rights as a holder of common equity) any
director of the Company or any of its Subsidiaries; or
9.1.6 Any lien, claim, security interest or other encumbrance (a
"Lien") securing any Indebtedness of the Company or any of its Subsidiaries
in an aggregate principal amount outstanding exceeding $250,000 shall be
enforced; or
9.1.7 Any share of common stock of the Company shall be transferred
in willful violation of the Stockholders Agreement; or
9.1.8 A final judgment that, in the aggregate with other outstanding
final judgments against the Company and its Subsidiaries, exceeds $250,000
shall be rendered against the Company or any Subsidiary if, within thirty
(30) days after entry thereof, such judgment shall not have been discharged
or stayed pending appeal or good faith efforts to settle, or within thirty
(30) days after expiration of such stay such judgment shall not have been
discharged; or
9.1.9 The Company or any of its Subsidiaries shall:
(a) commence a voluntary case under Title 11 of the United
States Code as from time to time in effect, or authorize, by
appropriate proceedings of its board of directors or other governing
body, the commencement of such a voluntary case;
(b) have filed against it a petition commencing an involuntary
case under said Title 11, which petition shall not have been dismissed
or stayed within 30 days;
(c) seek relief as a debtor under any applicable law, other
than said Title 11, of any jurisdiction relating to the liquidation or
reorganization of debtors or to the modification or alteration of the
rights of creditors, or consent to or acquiesce in such relief;
-15-
(d) have entered an order by a court of competent jurisdiction
(i) finding it to be bankrupt or insolvent, (ii) ordering or approving
its liquidation, reorganization or any modification or alteration of
the rights of its creditors or (iii) assuming custody of, or
appointing a receiver or other custodian for, all or a substantial
part of its property; or
(e) make an assignment for the benefit of, or enter into a
composition with, its creditors, or appoint or consent to the
appointment of a receiver or other custodian for all or a substantial
part of its property;
then and in each and every such case, subject to the subordination
agreements set forth in the Notes and the guarantee, (A) the holder or
holders of the Applicable Remedy Percentage or more in outstanding
principal amount of the Notes may proceed to protect and enforce its or
their available rights by suit in equity (including without limitation a
suit for rescission), action at law and/or other appropriate proceeding
either for specific performance of any covenant, provision or condition
contained in this Agreement or in the Notes, or in aid of the exercise of
any power granted to them in this Agreement or in the Notes, and (unless
there shall have occurred an Event of Default under Section 9.1.9 hereof,
in which case the unpaid principal amount of the Notes shall automatically
become due and payable) may by notice to the Company declare all or any
part of the unpaid principal amount of the Notes then outstanding to be
forthwith due and payable, and thereupon such unpaid principal amount or
part thereof, together with interest accrued thereon and, to the extent
permitted by law, an amount equal to any premium that would be payable on
the date of such declaration (or the soonest date thereafter on which a
voluntary prepayment would be permitted) upon a voluntary prepayment, shall
become so due and payable without presentation, protest or further demand
or notice of any kind, all of which are hereby expressly waived, and such
holder or holders may proceed to enforce payment of such amount or part
thereof in such manner as it or they may elect; and (B) any holder or
holders of the Applicable Remedy Percentage or more of the outstanding
shares of Common Stock (other than shares of Common Stock sold in a
registered public offering or to the public in a "brokers transaction"
within the meaning of Rule 144) may proceed to protect and enforce its or
their rights by suit in equity (including without limitation a suit for
rescission), action at law and/or other appropriate proceeding either for
specific performance of any covenant, provision or condition contained in
this Agreement or any term of the Charter of the Company, or in aid of the
exercise of any power granted to them in this Agreement or in the Charter
of the Company.
9.2 Annulment of Defaults. A Default or Event of Default shall not be
deemed to have occurred or to be in existence for any purpose of this Agreement
if the Majority Holders shall have expressly waived such event in writing
pursuant to Section 9.4 hereof or stated in writing that the same has been cured
to their reasonable satisfaction. No waiver pursuant to
-16-
this Section 9.2 shall extend to or affect any subsequent Default or Event of
Default or impair the rights of any holder of Securities upon the occurrence
thereof.
9.3 Waivers. The Company hereby waives to the extent not prohibited by
applicable law that cannot itself be waived (i) all presentments, demands for
performance, notices of nonperformance (except to the extent required by the
provisions hereof), protests, notices of protest, notices of intent to
accelerate and notices of dishonor in connection with any of the Notes, (ii) any
requirement of diligence or promptness on the part of any holder of Securities
in the enforcement of such holder's rights under the provisions of this
Agreement or any other Financing Agreement, (iii) any and all notices of every
kind and description that may be required to be given by any Legal Requirement
and (iv) any defense of any kind (other than payment) that The Company may now
or hereafter have with respect to its liability under this Agreement or any
other Financing Agreement.
9.4 Course of Dealing, Waiver Procedure, etc. No course of dealing
between the Company or any of its Affiliates on the one hand, and any holder of
Securities or any of such holder's Affiliates, on the other hand, nor, except as
set forth in the last sentence of this Section 9.4, any action by any holder of
Securities or any of its Affiliates, nor any action by any director (including
without limitation any director who is an authorized signatory of any holder of
Securities or a director for whose election any holder of Securities shall have
voted), shall operate as a waiver of the rights of such holder under this
Agreement, any other Financing Agreement or any Security. No delay or omission
in exercising any right under this Agreement or any other Financing Agreement
shall operate as a waiver of such right or any other right. A waiver on any one
occasion shall not be construed as a bar to or waiver of any right or remedy on
any future occasion. No waiver or consent shall be binding upon any holder of
any Securities unless it is given in a writing stating that such writing is a
waiver or consent, as the case may be, given pursuant to this Section 9.4, and
signed by such one or more of the holders of the Securities as may be required
by the provisions of this Agreement.
10. Payment On Securities; Registration; Transfer.
10.1 Home Office Payment. All payments made to the Purchasers in respect
of Securities held by them shall be made in federal or other immediately
available funds in lawful money of the United States for credit, not later than
12:00 noon, New York time, to their respective accounts as set forth on Schedule
II hereto, and shall be accompanied by sufficient information to identify the
source and application thereof and instructions to give advice by telephone as
set forth on Schedule II, or in any case by such other reasonable method or at
such other address as any Purchaser shall have from time to time notified the
Company. Each Purchaser agrees that, before any Note is assigned or
transferred, such Purchaser will, at its election, surrender such Note for a new
Note as provided in Section 10.2 hereof, or make or cause to be made a notation
thereon of principal payments previously made and of the date to which interest
thereon has been paid and notify the Company of the name and address of the
transferee of such Note.
-17-
10.2 Registration, Transfer and Exchange of Notes.
10.2.1 Notes Register. The Company shall keep at its principal
--------------
office a register in which shall be entered the names and addresses of the
registered holders of the Notes and particulars of the respective Notes
held by them and of all transfers of such Notes. References to the "holder"
or "holder of record" of any Note shall mean the payee thereof unless the
payee shall have presented such Note to the Company for transfer and the
transferee shall have been entered in said register as a subsequent holder,
in which case the terms shall mean such subsequent holder. The ownership of
the Notes shall be proven by such register.
10.2.2 Transfer. The holder of any of the Notes may at any time and
--------
from time to time prior to maturity or redemption thereof surrender any
Note held by it for exchange or (subject to compliance with the applicable
provisions of Section 11 hereof) transfer at said office of the Company.
Within a reasonable time thereafter and without expense (other than
transfer taxes, if any) to such holder, the Company shall issue, at its
expense, in exchange therefor another Note or Notes, dated the date to
which interest has been paid on the surrendered Note, for the same
aggregate principal amount as the principal amount of the Note or Notes so
surrendered, having the same maturity and rate of interest, containing the
same provisions and subject to the same terms and conditions as the Note or
Notes so surrendered. Each such new Note shall be in the denominations and
registered in the name of such Person or Persons as the holder of such
surrendered Note or Notes may designate in writing, and such exchange shall
be made in a manner such that no additional or lesser amount of principal
or interest shall result. The Company will pay shipping and insurance
charges, from and to each holder's principal office, involved in the
exchange or transfer of any Note.
10.2.3 Registration. Each Note issued hereunder, whether originally
------------
or in substitution for, or upon transfer or exchange of, any Note shall be
registered on the date of execution thereof by the Company. The registered
holder of record shall be deemed to be the owner of the Note for all
purposes of this Agreement and, subject to the provisions hereof, shall be
entitled to the principal, premium, if any, and interest evidenced by such
Note free from all equities or rights of set-off or counterclaim between
the Company and the transferor of such holder of record or any previous
holder of record thereof. All notices given hereunder to the holder of
record shall be deemed validly given if given in the manner specified in
Section 18 hereof.
10.3 Transfer and Exchange of Common Stock. The Company shall keep at its
principal office a register in which shall be entered the names and addresses of
the holders of shares of Common Stock issued by it and particulars of the Common
Stock held by them and of all transfers of such Common Stock. Upon surrender at
such office of any certificate representing shares of Common Stock for
registration of exchange or (subject to compliance
-18-
with the applicable provisions of Section 11 hereof) transfer, the Company shall
issue, at its expense, one or more new certificates, in such denomination or
denominations as may be requested, for shares of such Common Stock, and
registered as such holder may request. Any certificate representing shares of
Common Stock surrendered for registration of transfer shall be duly endorsed, or
accompanied by a written instrument of transfer duly executed by the holder of
such certificate or his attorney duly authorized in writing.
10.4 Replacement of Securities. Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of any
Note or certificate evidencing Common Stock and, in the case of any such loss,
theft or destruction, upon delivery of an indemnity bond in such reasonable
amount as the Company may determine (or, in the case of any Security held by any
Purchaser or another institutional holder or such Purchaser's or holder's
nominee, of an unsecured indemnity agreement from such Purchaser or such other
holder reasonably satisfactory to the Company), or, in the case of any such
mutilation, upon the surrender of such Security for cancellation to The Company
at its principal office, the Company at its expense will execute and deliver, in
lieu thereof, a new Note or certificate of like tenor, dated in the case of a
Note so that there will be no loss of interest. Any Security in lieu of which
any such new Security has been so executed and delivered by the Company shall
not be deemed to be an outstanding Security for any purpose of this Agreement.
11. Restrictions On Transfer. All Securities acquired by the Purchasers
hereunder and all securities issued in exchange therefor or upon transfer
thereof ("Restricted Securities") shall be transferable only upon satisfaction
of the conditions specified in this Section 11.
11.1 Restrictive Legend. Except as otherwise permitted by this Section 11,
each Note shall bear a legend in substantially the form set forth below, as the
case may be, and each certificate representing Common Stock shall bear a legend
in the form specified in the Stockholders Agreement.
"This Note has not been registered under the Securities Act of 1933, as
amended, and may not be sold or otherwise transferred in the absence of
such registration or an exemption therefrom under such Act. Furthermore,
this Note may be sold or otherwise transferred only in compliance with the
conditions specified in the Merger Financing Agreement hereinafter referred
to, a complete and correct copy of which is available for inspection at the
principal office of the issuer of this Note and will be furnished without
charge to the holder of this Note upon written request."
11.2 Notice of Proposed Transfer; Opinions of Counsel. Prior to any
transfer of any Restricted Securities that are not registered under an effective
registration statement under the Securities Act (other than a transfer pursuant
to Rule 144 under the Securities Act), the holder thereof will give written
notice to the Company of such holder's intention to effect such transfer,
describing in reasonable detail the manner of the proposed transfer. If any
such holder delivers to the Company an opinion of Ropes & Xxxx or other counsel
reasonably
-19-
acceptable to the Company to the effect that the proposed transfer may be
effected without registration of such Restricted Securities under the Securities
Act and the written agreement of the proposed transferee to be bound by all of
the terms and conditions contained in this Agreement and the Stockholders
Agreement and applicable to the Purchasers, such holder shall thereupon be
entitled, within 60 days thereafter, to transfer such Restricted Securities in
accordance with the terms of the notice delivered by such holder to the Company.
11.3 Termination of Restrictions. The restrictions imposed by Section 11.2
hereof upon the transferability of Restricted Securities shall cease and
terminate as to any particular Restricted Securities (i) when, in the opinion of
Ropes & Xxxx or other counsel reasonably acceptable to the Company, such
restrictions are no longer required in order to ensure compliance with the
Securities Act or (ii) when such Restricted Securities shall have been
effectively registered under the Securities Act or transferred pursuant to Rule
144. Whenever (i) such restrictions shall cease and terminate as to any
Restricted Securities or (ii) such Security shall be transferable under
paragraph (k) of Rule 144, the holder thereof shall be entitled to receive from
The Company, without expense, (a) in the case of Notes, new Notes of like tenor
not bearing the legend set forth in Exhibit 2.1(a) hereto, as the case may be,
or (b) in the case of Common Stock, new certificates not bearing the legend
referred to in Section 11.1 hereof.
12. Definitions Reference Table. The following terms defined elsewhere in this
Agreement in the Sections set forth below shall have the respective meanings
therein defined:
Term Definition
---- ----------
"Additional Taxes" Section 7.2.2
"Bank" Recital 3
"Closing" Recital 4
"Bridge Loan Agreement" Recital 3
"Closing Date" Recital 4
"Common Stock" Recital 2.2
"The Company" Preamble
"Credit Agreement" Recital 3
"Event of Default" Section 9.1
"Financing" Recital 2
"holder" Section 10.2.1
"holder of record" Section 10.2.1
"indemnified liabilities" Section 14
"indemnitees" Section 14
"Indemnity Note" Recital 3
"Indemnity Note Letter of Credit" Recital 3
"ISI Warrant" Recital 4.2
"Lien" Section 9.1.6
-20-
"Management Stockholders" Recital 3
"Management Subscription Agreement" Recital 3
"Merger" Recital 3
"Merger Agreement" Recital 1
"Merger Certificate" Recital 3
"Notes" Recital 2
"Omega" Recital 2
"Option Plan" Recital 3
"Purchasers" Preamble
"Restricted Securities" Section 11
"Securities" Recital 2
"Stockholders Agreement" Recital 3
"Tax Compensation Amount" Section 7.2.2
"Transaction Agreements" Recital 3
13. Additional Definitions.
13.1 "Affiliate" shall mean, with respect to any specified Person, (i)
---------
any Person directly or indirectly controlling, controlled by or under direct or
indirect common control with such specified Person or any of its Subsidiaries,
(ii) any Person who is or has been within five years an officer, director or
direct or indirect beneficial holder of at least 5% of any class of the
outstanding capital stock of such specified Person or any of its Subsidiaries,
(iii) any Person of which such specified Person or an Affiliate (as defined in
clause (i) or (ii) above) thereof shall, directly or indirectly, beneficially
own at least 5% of any class of outstanding capital stock or other evidence of
beneficial interest, (iv) in the event that such specified Person is BCC or any
Purchaser, any general or limited partner or advisory board member of any
Purchaser and any general or limited partner of any partner of any Purchaser and
(v) Members of the Immediate Family of any of the foregoing; provided, however,
that neither BCC, nor any Purchaser, nor any Person that, absent the investment
of the Purchasers in the Securities, would be an Affiliate (as defined by the
provisions of this Section 14.1 other than this proviso) of BCC or any Purchaser
shall be an Affiliate of the Company or any of its Subsidiaries for the purposes
of this Agreement or any other Contractual Obligation incorporating this
definition by reference; and provided, further, that no Person shall for the
purpose of this Agreement or any other Contractual Obligation incorporating this
definition by reference be an Affiliate of BCC or any Purchaser unless such
Person would, absent the investment of the Purchasers in the Securities, be an
Affiliate (as defined by the provisions of this Section 14.1 other than this
proviso) thereof; provided, further, no Person shall be deemed to be an
Affiliate of another Person solely by reason of the fact that control is
exercised over the former by the latter pursuant to a Contractual Obligation
arising in the ordinary course of business.
13.2 "Applicable Remedy Percentage" shall mean greater than fifty percent
----------------------------
(50.0%).
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13.3 "BCC" shall mean Xxxxxx Capital Corporation, a New York corporation.
---
13.4 "By-laws" shall mean all written rules, regulations and by-laws, and
-------
all other documents (other than the Charter), relating to the management,
governance or internal regulation of a Person (other than an individual) or
interpretative of the Charter of such Person, each as from time to time in
effect.
13.5 "Capitalized Lease" shall mean any lease that is or should be
-----------------
capitalized on the balance sheet of the lessee in accordance with generally
accepted accounting principles.
13.6 "Capitalized Lease Obligations" shall mean the amount of the
-----------------------------
liability reflecting the aggregate discounted amount of future payments under
all Capitalized Leases calculated in accordance with generally accepted
accounting principles.
13.7 "Charter" shall mean the certificate or articles of incorporation or
-------
organization, statute, constitution, joint venture or partnership agreement or
articles or other charter documents of any Person (other than an individual),
each as from time to time in effect.
13.8 "Code" shall mean the federal Internal Revenue Code of 1986 or any
----
successor statute, and the rules and regulations thereunder, and in the case of
any referenced section of any such statute, rule or regulation, any successor
section thereof, collectively and as from time to time amended and in effect.
13.9 "Commission" shall mean the Securities and Exchange Commission or
----------
any other federal agency at the time administering the Securities Act or the
Exchange Act.
13.10 "Compensation," as applied to any Person, shall mean the
------------
aggregate of all salaries, compensation, remuneration or bonuses of any
character, and medical, surgical, dental, hospital, disability, unemployment,
retirement, pension, profit sharing, vacation, insurance or fringe benefits of
any kind, or other payments of any kind whatsoever made directly or indirectly
by the Company or any of its Subsidiaries to such Person, Members of the
Immediate Family of such Person or Affiliates of such Person.
13.11 "consolidated" and "consolidating," when used with reference to
------------ -------------
any term, shall mean that term as applied to the accounts of the Company and its
Subsidiaries or such of their respective Subsidiaries as may be specified,
consolidated in accordance with generally accepted accounting principles, and
with appropriate deductions for minority interests in Subsidiaries.
13.12 "Contractual Obligation" shall mean, with respect to any Person,
----------------------
any contract, agreement, deed, mortgage, lease, license, other instrument,
commitment,
-22-
undertaking, written or oral, or other document, including without limitation
any Charter or By-law provisions and any document or instrument evidencing
Indebtedness, to which or by which such Person is a party or otherwise subject
or bound or to which or by which any property or asset of such Person is subject
or bound.
13.13 "Default" shall mean an Event of Default as defined in Section 9.1
-------
hereof or an event or condition that with the passage of time or giving of
notice, or both, would, absent cure, become such an Event of Default.
13.14 "Enforceable" shall mean, with respect to any Contractual
-----------
Obligation, that such Contractual Obligation is the legal, valid and binding
obligation of the Person in question, enforceable against such Person in
accordance with its terms, except to the extent that enforcement of the rights
and remedies created thereby is subject to bankruptcy, insolvency,
reorganization, moratorium and other similar laws of general application
affecting the rights and remedies of creditors and to general principles of
equity (regardless of whether enforceability is considered in a proceeding in
equity or at law).
13.15 "ERISA" shall mean the federal Employee Retirement Income Security
-----
Act of 1974 or any successor statute, and the rules and regulations thereunder,
and in the case of any referenced section of any such statute, rule or
regulation, any successor section thereto, collectively and as from time to time
amended and in effect.
13.16 "Exchange Act" shall mean the Securities Exchange Act of 1934 or any
------------
successor federal statute, and the rules and regulations of the Commission
thereunder, and in the case of any referenced section of any such statute, rule
or regulation, any successor section thereto, collectively and as from time to
time amended and in effect.
13.17 "Financing Agreements" shall mean this Agreement, the Notes, and any
--------------------
other present or future agreements relating to this Agreement from time to time
entered into between the Company or its Subsidiaries and the holders of any
Securities or that is stated to be a Financing Agreement, as from time to time
amended or modified, and all statements, reports or certificates delivered by
the Company or any of its Subsidiaries to such holders in connection herewith or
therewith.
13.18 "generally accepted accounting principles" shall mean generally
----------------------------------------
accepted accounting principles, as defined by the Financial Accounting Standards
Board.
13.19 "Guarantee" shall mean (i) any guarantee of the payment or
---------
performance of, or any contingent obligation in respect of, any Indebtedness or
other obligation of any other Person, (ii) any other arrangement whereby credit
is extended to one obligor on the basis of any promise or undertaking of another
, (A) to pay the Indebtedness of such obligor, (B) to purchase any obligation
owed by such obligor, (C) to purchase or lease assets (other than inventory in
the ordinary course of business) under circumstances that
-23-
would enable such obligor to discharge one or more of its obligations, or (D) to
maintain the capital, working capital, solvency or general financial condition
of such obligor, whether or not such arrangement is disclosed in the balance
sheet of such other or is referred to in a footnote thereto, and (iii) any
liability as general partner of a partnership or as a venturer in a joint
venture in respect of Indebtedness or other obligations of such partnership or
venture.
13.20 "Indebtedness" shall mean all obligations, contingent or otherwise,
------------
that in accordance with generally accepted accounting principles would be
required to be presented upon the obligor's balance sheet as liabilities, but in
any event including liabilities secured by any Lien existing on property owned
or acquired by the obligor or a Subsidiary thereof, whether or not the liability
secured thereby shall have been assumed, Capitalized Lease Obligations and all
Guarantees, endorsements and other contingent obligations in respect of
Indebtedness of others.
13.21 "Investment" shall mean (i) any share of capital stock, evidence of
----------
Indebtedness or other security issued by any other , (ii) any loan, advance, or
extension of credit to, or contribution to the capital of, any other Person,
(iii) any purchase of the securities or an interest in the assets constituting a
business or a discrete part of a business of any other Person, or commitment or
option to make such purchase if, in the case of an option, the consideration
therefor exceeds ten percent of the value of the securities or assets subject
thereto, and (iv) any other investment; provided, however, that the term
"Investment" shall not include (A) current trade and customer accounts
receivable arising in the ordinary course of business and payable in accordance
with customary trade terms or prepaid assets arising in the ordinary course of
business, (B) advances to employees for travel expenses, drawing accounts and
similar expenditures, (C) stock or other securities acquired in connection with
the satisfaction or enforcement of Indebtedness or claims due or owing to the
Company or any of its Subsidiaries or as security for any such Indebtedness or
claim, or (D) demand deposits in banks or trust companies. The amount of an
Investment outstanding at any time shall be determined in accordance with
generally accepted accounting principles; provided, however, that no Investment
shall be increased as a result of an increase in the undistributed retained
earnings of the Person in whom an Investment was made or decreased as a result
of an equity interest in the losses of any such Person.
13.22 "Legal Requirement" shall mean any federal, state, local or foreign
-----------------
law, statute, standard, ordinance, code, order, rule, regulation, resolution,
promulgation, or any order, judgment or decree of any court, arbitrator,
tribunal or governmental authority, or any license, franchise, permit or similar
right granted under any of the foregoing, or any similar provision having the
force and effect of law.
13.23 "Majority Holders" shall mean, with respect to any class(es) or
----------------
type(s) of Securities issued hereunder, the holder or holders at the relevant
time of more than fifty percent (50%) of the outstanding principal amount or the
number of outstanding shares, as
-24-
the case may be, of the specified class(es) or type(s) of Securities or, if no
class or type is specified, the holder or holders at the relevant time of each
of (i) more than fifty percent (50.0%) in outstanding principal amount of the
Notes and (ii) more than fifty percent (50.0%) of the outstanding shares of
Common Stock constituting Securities (excluding any such shares that have been
sold in a registered public offering or in a "brokers transaction" within the
meaning of Rule 144).
13.24 "Material Adverse Effect" means any adverse effect on the business,
-----------------------
operations, assets, prospects or condition, financial or otherwise, of the
Company and its Subsidiaries (on a consolidated basis) that, when considered
together with all other adverse changes and effects with respect to which such
phrase is used in this Agreement, would be material to the business, operations,
assets, prospects or condition, financial or otherwise, of the Company and its
Subsidiaries (on a consolidated basis).
13.25 "Members of the Immediate Family" shall mean, with respect to any
-------------------------------
individual, each spouse, parent, brother, sister or child of such individual,
each spouse of any such Person, each child of any of the aforementioned Persons,
each trust created in whole or in part for the benefit of one or more of such
Persons and each custodian or guardian of the property of one or more such
Persons.
13.26 "Person" shall mean any individual, partnership, corporation, the
------
Company, association, trust, joint venture, unincorporated organization, entity
or division, or any government, governmental department or agency or political
subdivision thereof.
13.27 "Rule 144" shall mean Rule 144 of the rules and regulations of the
--------
Commission promulgated under the Securities Act, and any successor rule or
regulation thereto, and in the case of any referenced section of such rule, any
successor section thereto, collectively and as from time to time amended and in
effect.
13.28 "Securities Act" shall mean the Securities Act of 1933 or any
--------------
successor federal statute, and the rules and regulations of the Commission
thereunder, and in the case of any referenced section of any such statute, rule
or regulation, any successor section thereto, collectively and as from time to
time amended and in effect.
13.29 "Subsidiary" shall mean any Person of which the Company or other
----------
specified Person shall at the time own directly or indirectly through a
Subsidiary at least a majority of the outstanding capital stock (or other shares
of beneficial interest) entitled to vote generally or at least a majority of the
partnership, joint venture or similar interests, or in which the Company or
other specified Person is a general partner or joint venturer without limited
liability.
13.30 "Tax Liabilities" shall mean all liabilities (absolute, accrued,
---------------
contingent, determined or determinable) in respect of (i) any taxes (including
without limitation taxes
-25-
required to be withheld from employees' salaries and other withholding taxes and
obligations and all deposits required to be made with respect to such
withholding taxes or otherwise) arising under any Legal Requirement or (ii) any
interest, penalties, assessments, additions to tax or deficiencies arising in
connection with any such taxes.
13.31 "Wholly Owned Subsidiary" shall mean any Subsidiary all of the
-----------------------
outstanding capital stock (or other shares of beneficial interest) entitled to
vote generally other than directors' qualifying shares is owned by the Company
or other specified Person, directly or indirectly through a Wholly Owned
Subsidiary.
14. Expenses, Etc. Whether or not any of the transactions contemplated by
this Agreement and the other Transaction Agreements shall be consummated, the
Company agrees to pay, or to cause its Subsidiaries to pay, on demand, all
expenses and costs in connection with such transactions and operations hereunder
and thereunder, including without limitation (i) the reasonable fees and
expenses of counsel to the Purchasers arising in connection with the
preparation, negotiation and execution of this Agreement and the other
Transaction Agreements and the consummation of the transactions contemplated
hereby and thereby, (ii) the reasonable fees and expenses of accountants,
consultants and other professionals engaged by the Purchasers or BCC in
connection with consummation of such transactions, (iii) the out-of-pocket and
overhead expenses incurred by any Purchaser or BCC in connection with the
consummation of such transactions, the providing of any consulting or other
services to the Company or any of its Subsidiaries or the attendance at any
meeting of the board of directors (or any committee thereof) of the Company or
any of its Subsidiaries, (iv) all Tax Liabilities (other than Tax Liabilities
based upon or measured by income), including without limitation recording or
filing fees and sales, transfer and documentary stamp and other similar Tax
Liabilities, at any time payable in respect of any Security or this Agreement,
any other Transaction Agreement or any of the transactions contemplated hereby
or thereby, (v) all expenses (including without limitation reasonable attorneys'
fees and expenses) incurred in respect of the exercise or performance, or the
preservation or enforcement, of any right granted to any holder of Securities
hereunder or under any other Transaction Agreement, and (vi) all expenses
(including without limitation reasonable attorneys' fees and expenses) in
connection with any amendments or waivers of, or consents under, this Agreement
or any other Transaction Agreement (whether or not the same becomes effective).
In consideration of the execution, delivery and performance of this
Agreement by the Purchasers, the Company hereby agrees to indemnify, exonerate
and hold, and to cause each of its Subsidiaries, jointly and severally, to
indemnify, exonerate and hold each Purchaser and BCC and each of their
respective partners, officers, directors, advisory board members, employees and
agents (collectively, the "indemnitees") free and harmless from and against any
and all actions, causes of action, suits, losses, liabilities and damages, and
expenses in connection therewith, including without limitation reasonable
attorneys' fees and disbursements (collectively, the "indemnified liabilities"),
incurred by the
-26-
indemnitees or any of them as a result of, or arising out of, or relating to any
transaction financed or to be financed in whole or in part directly or
indirectly with proceeds from the sale of any of the Securities, or the
execution, delivery, performance or enforcement of this Agreement or any other
Transaction Agreement, or the service of any indemnitee as an officer or
director of the Company or any of its Subsidiaries, or any litigation or
investigation instituted by any governmental agency or any other Person and
involving the Company, any Affiliate of the Company or any indemnitee, except
for any such indemnified liabilities arising on account of any indemnitee's
gross negligence or willful misconduct, and if and to the extent that the
foregoing undertaking may be unenforceable for any reason, the Company hereby
agrees to make, and to cause each of its Subsidiaries to make, the maximum
contribution to the payment and satisfaction of each of the indemnified
liabilities that is permissible under applicable law.
The obligations of the Company and its Subsidiaries under this Section 15
shall survive payment for or transfer of any or all of the Securities.
15. Limited Liability of Partners. The Company agrees that it will not, nor
will any of its Subsidiaries or Affiliates, hold any of the partners of any
Purchaser or any other holder of any Security to any personal liability,
including any liability for obligations arising under or in connection with this
Agreement, the other Transaction Agreements, or the transactions contemplated
hereby or thereby.
16. Notices. Any notice or other communication in connection with this
Agreement, any other Financing Agreement or the Securities shall be effective
only if given in writing (or in the form of a telex or telecopy) addressed as
provided below and either (i) actually delivered at said address or (ii) in the
case of a letter, seven business days shall have elapsed after the same shall
have been deposited in the United States mails, postage prepaid and registered
or certified:
If to the Company, to it at the following address:
0000 Xxxxxx Xxxxx
Xxxxxxxx, Xxxx 00000
Attention: Chief Executive Officer
Telecopy: 000-000-0000
or at such other address as the Company shall have specified by notice actually
received by the addressor, with a copy to:
Xxxxxx Capital Corporation
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Costa Littas
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Telecopy: 000-000-0000
If to any Purchaser, to it at its address set forth on Schedule II hereof,
or at such other address as such Purchaser shall have specified by notice
actually received by the addressor, with a copy to Ropes & Xxxx, Xxx
Xxxxxxxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx, 00000-0000, Attention: X. Xxxxxxx
Xxxxxxxxx, Esq., Telecopy: 000-000-0000.
If to any other holder of record of any Security, to it at its address set
forth in the register referred to in Section 10 hereof.
17. Survival of Covenants, Etc. All covenants, agreements, representations and
warranties made herein or in any other document referred to herein or delivered
to any Purchaser pursuant hereto shall be deemed to have been material and
relied upon by such Purchaser, notwithstanding any investigation made by such
Purchaser or on its behalf, and shall survive the execution and delivery to such
Purchaser of this Agreement and of the Securities.
18. Amendments and Waivers. Except as otherwise explicitly provided herein, any
term of this Agreement or of the Notes may be amended, and the observance of any
term of this Agreement or of the Notes may be waived, and any consent may be
granted hereunder (either generally or in a particular instance and either
retroactively or prospectively), only with the written consent of the Company
and the Majority Holders; provided, however, that no such amendment or waiver
shall (i) reduce the percentage of any type of Securities the holders of which
are required to consent to any such amendment or waiver, (ii) increase the
percentage of the holders of such type of Securities required to exercise the
remedies provided in Section 8.1 hereof, (iii) decrease the percentage of the
holders of such type that may annul any Event of Default as provided in Section
8.2 hereof or (iv) reduce the principal amount of, or reduce the rate of
interest on, or reduce the amount of premium payable on any prepayment of, such
type of Securities, without in each case the prior written consent of all
holders of such type of Securities (other than Securities sold in a registered
public offering or in a "brokers transaction" within the meaning of Rule 144).
Any amendment or waiver effected in accordance with this Section 18 or consent
given pursuant to this Section 18 shall be binding upon the Company and each
holder of any Security.
19. Consent to Jurisdiction; Jury Trial Waiver.
19.1 Consent to Jurisdiction. The Company by its execution hereof (i)
hereby irrevocably submits, and agrees to cause each of its Subsidiaries to
submit, to the exclusive jurisdiction of the federal and state courts of the
State of Delaware (provided that any Purchaser may bring any such action, suit
or proceeding against the Company in any jurisdiction in which the Company is
subject to personal jurisdiction) for the purpose of any suit, action or other
proceeding out of or based upon this Agreement or any other
-28-
Transaction Agreement or the subject matter hereof or thereof, and (ii) hereby
waives, and agrees to cause each of its Subsidiaries to waive, to the extent not
prohibited by applicable law, and agrees not to assert, and agrees not to allow
any of its Subsidiaries to assert, by way of motion, as a defense or otherwise,
in any such proceeding, any claim that it is not subject personally to the
jurisdiction of the above-named courts, that its property is exempt or immune
from attachment or execution, that any such proceeding brought in one of the
above-named courts is improper, or that this Agreement or any other Transaction
Agreement, or the subject matter hereof or thereof may not be enforced in or by
such court. The Company hereby consents to service of process in any such
proceeding in any manner permitted by Delaware law, and agrees that service of
process by registered or certified mail, return receipt requested, at its
address specified pursuant to Section 16 hereof is reasonably calculated to give
actual notice.
19.2 Waiver of Jury Trial. To the extent not prohibited by applicable law
that cannot be waived, each of the Purchasers and the Company hereby waives, and
agrees to cause each of its Subsidiaries to waive, and covenants that neither it
nor any of its Subsidiaries will assert (whether as plaintiff, defendant or
otherwise) any right to trial by jury in any forum in respect of any issue,
claim, demand, action or cause of action arising out of or based upon this
Agreement or any other Transaction Agreement or the subject matter hereof or
thereof or any Financing Obligation or in any way connected with or related or
incidental to the dealings of any Purchaser, the Company or any of its
Subsidiaries in connection with any of the above, in each case whether now
existing or hereafter arising and whether in contract or tort or otherwise. The
Company acknowledges that it has been informed by the Purchasers that this
Section 19.2 constitutes a material inducement upon which the Purchasers are
relying and will rely in entering into this Agreement and any other present or
future Financing Agreements. The Company or any Purchaser may file an original
counterpart or a copy of this Section 19.2 with any court as written evidence of
the consent of the Company and each Purchaser to the waiver of its right to
trial by jury.
20. Choice of Law; Miscellaneous. This Agreement may be executed in any number
of counterparts each of which shall be an original but which together shall
constitute one instrument, which shall be governed by and construed in
accordance with the domestic substantive laws of the State of Delaware without
giving effect to any choice or conflict of law provision or rule that would
cause the application of the domestic substantive laws of any other
jurisdiction, and shall bind and inure to the benefit of the parties hereto and
their respective successors and assigns. Immediately after the consummation of
the Merger, Holdings, as successor to the obligations of the Company under this
Agreement and the other Financing Agreements, will execute this Agreement and
cause Omega to execute this Agreement. In addition, immediately after the
consummation of the Merger, Holdings will cause Omega to deliver to each
Purchaser a guaranty of the obligations of the Company in respect of the Notes
held by such Purchaser in the form included in Exhibit 2.1(a). This Agreement
and the other Financing Agreements and
-29-
Transactions Agreements set forth the entire understanding of the parties hereto
with respect to the transactions contemplated hereby. In the event that any
provision hereof would, under applicable law, be invalid or unenforceable, such
provision shall, to the extent permitted under applicable law, be construed by
modifying or limiting it so as to be valid and enforceable to the maximum extent
possible under applicable law. The provisions of this Agreement are severable,
and in the event that any provision hereof should be held invalid or
unenforceable in any respect, it shall not invalidate, render unenforceable or
otherwise affect any other provision hereof. The headings in this Agreement are
for convenience of reference only and shall not alter or otherwise affect the
meaning hereof. In addition, whether or not any express assignment has been
made, the provisions of this Agreement that are for the benefit of any Purchaser
as the holder of any Security shall also inure to the benefit of, and be
enforceable by, all subsequent holders of such Securities, except where
reference is explicitly made only to the original Purchasers or expressly not
assigned; and any provision of this Agreement referring to a specified
percentage of any Security held by the Purchasers shall also be deemed to refer
to any holder or holders of such specified percentage of such Security, except
as otherwise expressly provided herein.
[SPACE INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the parties hereto, intending to be legally bound by
the terms hereof, have hereunto set their hands, under seal, as of the date
first above written.
OMEGA MERGER CORP.
By
---------------------------------
Title:
OMEGA HOLDINGS, INC.
By
---------------------------------
Title:
OMEGA CABINETS, LTD.
By
---------------------------------
Title:
MEZZANINE LENDING ASSOCIATES III, L.P.
By: Mezzanine Lending Management III, L.P.
By
---------------------------------
General Partner
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Schedule I
Schedule of Purchasers and Securities
Purchaser Security Price
--------- -------- -----
Mezzanine Lending Associates III, L.P. $10 million principal $10,000,000
amount 11% note
61,865 Shares of $61,865,000
Common Stock
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Schedule II
Schedule of Purchasers, Addresses and Home Office Payments
Purchaser Depository Institution Account No. Telephone Advice
--------- ---------------------- ----------- ----------------
Mezzanine Lending Chase Manhattan #479-92600 Xxxxxxxxx Olivenia
Associates III, L.P. Bank, N.A. 212-388-5106
000 Xxxxx Xxxxxx
Xxxxx Xxxxx
Xxx Xxxx, XX 00000
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