EXHIBIT 4.7
PURCHASE MONEY LOAN AGREEMENT
This Purchase Money Loan Agreement (this "Agreement") is made and
entered into as of the 27th day of August, 2003 (the "Effective Date"), by and
between The Xxxxxxx-Xxxxxxxx Company, an Ohio corporation (the "Corporation"),
and The Xxxxxxx-Xxxxxxxx Company Employee Stock Purchase and Savings Plan (the
"Trust"), acting by and through GreatBanc Trust Company, an Illinois corporation
(the "Trustee"), not in its individual capacity (except as expressly specified
in Section 6.11 hereof), but solely in its capacity as trustee of the employee
stock ownership plan feature of the Trust.
W I T N E S S E T H:
WHEREAS, the Trust has agreed to purchase 350,000 shares of the
Corporation's Convertible Participating Serial Preferred Stock, without par
value, (the "ESOP Shares") from the Corporation pursuant to a Stock Purchase
Agreement between the Corporation and the Trust of even date herewith (the
"Stock Purchase Agreement"); and
WHEREAS, to implement the terms of the Stock Purchase Agreement and to
enable the Trust to purchase the shares of ESOP Shares, the Corporation has
agreed to make a loan to the Trust on the terms and conditions set forth herein.
NOW, THEREFORE, for and in consideration of the premises and the
covenants hereinafter contained, the Corporation and the Trust hereby agree as
follows:
ARTICLE I
CONSTRUCTION AND DEFINED TERMS
SECTION 1.01. Articles and Sections. The Article and Section headings
and captions in this Agreement are for convenience only and shall not affect the
construction or interpretation of this Agreement. The references in this
Agreement to Articles and Sections shall be read as Articles or Sections of this
Agreement unless otherwise specifically provided.
SECTION 1.02. ESOP Loan Documents. References in this Agreement to
Purchase Money Loan Documents, and any of the documents that are included within
the definition of Purchase Money Loan Documents, shall include such amendments,
supplements and replacements as may be made thereto or therefor from time to
time.
SECTION 1.03. Defined Terms. Unless otherwise expressly stated in this
Agreement, capitalized terms used in this Agreement shall have the following
meanings:
"Applicable Law" means as to any Person, all Laws applicable
to such Person and all Laws applicable to any Property or activity of such
Person.
"Business Day" means any day other than a Saturday, Sunday or
a day on which banking institutions are authorized or obligated by law or
executive order to close in New York City.
"Closing" or "Closing Date" means the date of the closing of
the purchase of the shares of ESOP Shares under the Stock Purchase Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral" means the shares of ESOP Shares and other
collateral security granted or pledged by the Trust to the Corporation to secure
the Purchase Money Loan at any time, including any proceeds and products thereof
at any time.
"Collection Costs" means any and all costs and expenses of
enforcing this Agreement and the other Purchase Money Loan Documents including,
without limitation, any and all costs and expenses of collecting the Obligations
and exercising the Corporation's rights and remedies under the Purchase Money
Loan Documents as against any collateral intended by this Agreement and the
other Purchase Money Loan Documents to be given to the Corporation as security
for the Obligations, or as against the Trust, or any trustee in bankruptcy,
receiver or debtor-in-possession, and any and all costs and expenses incurred by
the Corporation at any time in enforcing the Corporation's security interests
and priority in any collateral and any other Property intended by this Agreement
and the other Purchase Money Loan Documents to be given to the Corporation as
security for the Obligations, and any and all other costs and expenses incurred
by the Corporation after the occurrence of any Default, with regard to any
matters relating to the Purchase Money Loan Documents, and regardless of whether
an Event of Default shall have been declared, any Obligations shall have been
accelerated or declared due or any other remedies shall have been exercised, and
any and all such costs and expenses incurred by the Corporation in or relating
to any bankruptcy or insolvency proceedings. In all such events, such costs and
expenses shall include, without limitation, the reasonable fees, expenses and
disbursements of the Corporation's legal counsel. Nothing in this definition
shall be construed as obligating the Corporation to do or cause to be done any
of the things referred to in this definition or as obligating the Corporation to
fund or incur any Collection Costs.
"Credit Termination Date" means the date which is ten (10)
years after the Effective Date.
"Default" means any event, occurrence, circumstance, act or
failure to act which is or with the giving of notice and/or the passage of time
would become an Event of Default.
"Dollars" means the lawful currency of the United States of
America.
"Effective Date" means the Effective Date as set forth on the
first page of this Agreement.
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"ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
"ESOP Shares" means the 350,000 shares of the Corporation's
Convertible Participating Serial Preferred Stock, without par value, purchased
by the Trust with the proceeds of the Purchase Money Loan.
"Event of Default" means an Event of Default set forth in
Article V.
"Interest Rate" shall be four and one-half percent (4.5%) per
annum.
"Laws" means at any time, all laws, statutes, regulations,
ordinances, rules, codes, decrees, orders and other directives of any federal,
state, district, territorial or local government within the United States of
America (or any national, state, provincial or local government outside the
United States of America), or any branch, department, agency or office thereof,
applicable to any party to any Purchase Money Loan Document, or to any business,
industry or other activity in which any party to the Purchase Money Loan
Documents may be engaged from time to time.
"Lien" means any security interest or other lien, charge or
encumbrance of any kind.
"Lien Notice" means any instrument, document, agreement or
notice given to, or filed, recorded or registered with, any Person, and
regardless of whether required by any Law, for the purpose of effecting,
perfecting, protecting, maintaining, registering or giving notice of any Lien.
"Loan" means the Purchase Money Loan made under this
Agreement.
"Obligations" means all now existing and hereafter arising
obligations, indebtedness and liabilities of the Trust to the Corporation for
payment when due of all principal, interest, costs and expenses of the Purchase
Money Loan and for performance of the Trust's other obligations under this
Agreement and the other Purchase Money Loan Documents.
"Payment Office" means the Corporation's office at 000
Xxxxxxxx Xxxxxx, X.X., Xxxxxxxxx, Xxxx 00000, Attn: Vice President and
Treasurer, or such other location as may be designated by the Corporation upon
written notice to the Trust.
"Permitted Lien" means the security interest granted to the
Corporation in the ESOP Shares under the Purchase Money Pledge Agreement.
"Person" means any natural person, corporation, limited
liability company, partnership, joint venture, entity, association, joint-stock
company, the Trust or unincorporated organization and any federal, state,
district, territorial or local government within the United
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States of America (or any national, state, provincial or local government
outside the United States of America), or any branch, department, agency or
office thereof.
"Plan Documents" means the documents, instruments and
agreements which govern the Trust, as in effect from time to time.
"Property" means any right or interest in or to property of
any kind whatsoever, whether real, personal or mixed, and whether tangible or
intangible.
"Purchase Money Loan" means the credit extended by the
Corporation to the Trust under Section 2.01 of this Agreement.
"Purchase Money Loan Document" or "Purchase Money Loan
Documents" means this Agreement, the Purchase Money Note and the Purchase Money
Pledge Agreement.
"Purchase Money Note" means the $350,000,000 Purchase Money
Note dated as of the date hereof made by the Trust and payable to the order of
the Corporation, in the form attached hereto as Exhibit A.
"Purchase Money Pledge Agreement" means the Purchase Money
Pledge Agreement dated as of the date hereof made by the Trust in favor of the
Corporation, pursuant to which the shares of ESOP Shares are pledged to the
Corporation as collateral security for the Purchase Money Loan, in the form
attached hereto as Exhibit B.
"Subsidiary" or "Subsidiaries" means a consolidated subsidiary
of the Corporation that falls within the meaning of Rule 405 of the rules and
regulations of the Securities and Exchange Commission promulgated under the
Securities Act of 1933, as amended.
ARTICLE II
PURCHASE MONEY LOAN
SECTION 2.01. Purchase Money Loan. The Corporation shall, upon the
terms and subject to the conditions of this Agreement, extend credit to the
Trust in the principal amount of Three Hundred and Fifty Million Dollars
($350,000,000), which is the purchase price payable by the Trust for the shares
of ESOP Shares. Prior to receipt of the shares of ESOP Shares, the Trust will
duly execute and deliver the Purchase Money Loan Documents.
SECTION 2.02. Covenant to Pay; Purchase Money Note. The Trust covenants
and agrees to execute and deliver to the Corporation the Purchase Money Note
immediately upon the execution and delivery of this Agreement and to repay the
Purchase Money Loan to the Corporation, together with all accrued interest
thereon, and all expenses, costs and fees relating thereto, without set-off,
defense or counterclaim of any kind in accordance with the terms of this
Agreement, the Purchase Money Note and the other Purchase Money Loan Documents.
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SECTION 2.03. Use of Purchase Money Loan Proceeds. The proceeds of the
Purchase Money Loan shall be used solely for the Trust's purchase of the shares
of ESOP Shares from the Corporation.
SECTION 2.04. The Corporation's Records. Absent manifest error, the
Corporation's records of payments received in respect of the Loan from time to
time shall be presumed correct. Notwithstanding the foregoing, the Corporation's
failure to record loan amounts or payments or other related information (or any
error in recording such amounts or other information) shall not limit or affect
the Trust's obligation to repay the Loan, and all accrued interest and other
amounts on the Loan, in accordance with the terms of this Agreement, the
Purchase Money Note and the other Purchase Money Loan Documents.
SECTION 2.05. Computation of Interest. All interest shall accrue on the
actual number of days per year.
SECTION 2.06. Prepayments. The Trust may prepay the Loan in whole or in
part at any time without premium or penalty.
SECTION 2.07. Manner of Payments. All payments to be made to the
Corporation shall be made in Dollars in immediately available funds without
set-off, defense, counterclaim or deduction of any kind, not later than 12:00
noon, Eastern Time, at the Payment Office on the dates specified for such
payments under the Purchase Money Note. If any payment on the Loan shall be due
and payable on any day which is not a Business Day, such payment shall be deemed
due on the next following Business Day and interest shall be payable at the
applicable rate specified herein through such Business Day.
SECTION 2.08. Application of Payments. Payments made by the Trust to
the Corporation shall be applied in such order as the Corporation may determine
in the Corporation's discretion.
SECTION 2.09. Security. The Purchase Money Note and accrued interest
thereon shall be secured pursuant to the terms of the Purchase Money Pledge
Agreement.
SECTION 2.10. No Demand. Notwithstanding any provision of this
Agreement to the contrary, the Corporation shall make no demand against the
Collateral pledged by the Trust except as provided in Article V.
SECTION 2.11. Conditions to Loan. The following are conditions
precedent to the making of the Purchase Money Loan and must be fulfilled to the
Corporation's satisfaction:
(a) All Purchase Money Loan Documents shall have been fully
executed by the parties thereto and delivered to the Corporation; and all
actions necessary for the perfection and protection of the Corporation's
security interests under this Agreement and the
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other Purchase Money Loan Documents, and all actions necessary to maintain the
first priority of such security interests, shall have been taken and completed;
and
(b) the Corporation shall have received such additional
supporting certifications and other documents as the Corporation may request.
ARTICLE III
REPRESENTATIONS, WARRANTIES, COVENANTS
AND AGREEMENTS OF THE CORPORATION
The Corporation hereby represents and warrants to, and agrees with, the
Trust as follows:
SECTION 3.01. Authorization and Effect. This Agreement and the other
Purchase Money Loan Documents have each been duly authorized, executed and
delivered by the Corporation and (assuming the due execution and delivery
thereof by the Trust) constitute the valid and legally binding obligation of the
Corporation, enforceable in accordance with its and their terms, subject to the
effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and fair dealing.
SECTION 3.02. No Conflicts. The execution, delivery and performance of
this Agreement and the other Purchase Money Loan Documents by the Corporation
and the consummation of the transactions contemplated hereby and thereby (i)
will not conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other material agreement or material instrument to
which the Corporation or any of its Subsidiaries is a party or by which the
Corporation or any of its Subsidiaries is bound, (ii) will not result in any
violation of any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Corporation or any of
its Subsidiaries, except for such violations that would not result in having a
material adverse effect on the financial condition or results of operation of
the Corporation and its Subsidiaries taken as a whole, and (iii) will not result
in any violation of the provisions of the charter or by-laws (or other
organizational documents) of the Corporation or any of its Subsidiaries. No
consent, approval, authorization or order of, or filing or registration with,
any governmental agency or body is required for the execution, delivery and
performance of this Agreement and the other Purchase Money Loan Documents by the
Corporation and the consummation of the transactions contemplated hereby.
SECTION 3.03. The Trust. The Trust has been duly organized and
established by all necessary corporate action on the part of the Corporation.
The Trust includes a legal and valid employee stock ownership plan within the
meaning of Code Section 4975(e)(7) and ERISA Section 407(d)(6), and constitutes
a qualified trust under Code Section 401(a) which is exempt from taxation under
Code Section 501(a). The Corporation has received a favorable determination
letter, dated October 16, 2002, from the Internal Revenue Service that confirms
the status of the Trust under the Code.
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SECTION 3.04. Status of Trust. The Corporation will use its reasonable
best efforts to cause the Trust to maintain its qualifications as an employee
stock ownership plan within the meaning of Code Section 4975(e)(7) and as a
qualified trust under Code Section 401(a) which is exempt from taxation under
Code Section 501(a).
ARTICLE IV
REPRESENTATIONS, WARRANTIES, COVENANTS
AND AGREEMENTS OF THE TRUST
The Trust hereby represents and warrants to, and agrees with, the
Corporation as follows:
SECTION 4.01 Power of the Trust. The Trust has the power, authority and
legal right to execute and deliver this Agreement and the other Purchase Money
Loan Documents and to perform its obligations under this Agreement and the other
Purchase Money Loan Documents.
SECTION 4.02. Authorization and Effect. This Agreement and the other
Purchase Money Loan Documents have each been duly authorized, executed and
delivered by the Trust and (assuming the due execution and delivery thereof by
the Corporation) constitute the valid and legally binding obligation of the
Trust, enforceable in accordance with its and their terms, subject to the
effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and fair dealing.
SECTION 4.03. No Conflicts. The execution, delivery and performance of
this Agreement and the other Purchase Money Loan Documents by the Trust and the
consummation of the transactions contemplated hereby and thereby (i) will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other material agreement or material instrument to
which the Trust is a party or by which the Trust is bound, (ii) will not result
in any violation of any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Trust (other than with
respect to any such violation related to the prohibited transaction provisions
of ERISA, for which the Corporation acknowledges and agrees that the Trust shall
make no representation or warranty hereunder related to such prohibited
transaction provisions), and (iii) will not result in any violation of the
provisions of the organizational documents of the Trust. No consent, approval,
authorization or order of, or filing or registration with, any governmental
agency or body is required for the execution, delivery and performance of this
Agreement and the other Purchase Money Loan Documents by the Trust and the
consummation of the transactions contemplated hereby and thereby.
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SECTION 4.04. Payment of the Purchase Money Note. The Trust shall
punctually pay the principal of, and interest on, the Purchase Money Note issued
hereunder in accordance with the terms thereof and hereof.
SECTION 4.05. Liens. The Trust has good and marketable title to the
shares of ESOP Shares free of all Liens, except for the Permitted Lien.
SECTION 4.06. Conditions. All conditions precedent to the making of the
Loan as set forth in Article II have been satisfied in full.
SECTION 4.07. Information. The Trust shall deliver to the Corporation,
or cause to be delivered to the Corporation, with reasonable promptness upon any
such request, such other information regarding the business, properties or
financial or operating condition of the Trust as the Corporation may request.
SECTION 4.08. Existence. The Trust shall maintain its existence in the
jurisdiction in which it is formed.
SECTION 4.09. Compliance with Laws. The Trust shall comply, in all
material respects, with all applicable Laws.
SECTION 4.10. Collection Costs. The Trust shall pay all Collection
Costs promptly upon the Corporation's demand from time to time.
SECTION 4.11. Review and Audit. The Corporation shall be permitted
access to all of the Trust's books and records at any location during normal
business hours and shall be permitted to take copies, at the Trust's expense, of
such books and records as the Corporation may request.
SECTION 4.12. ESOP Shares. The Trust shall not permit any Lien to exist
on the Collateral, except the Permitted Lien.
ARTICLE V
EVENTS OF DEFAULT; CERTAIN REMEDIES UPON DEFAULT
SECTION 5.01. Events of Default. Each of the following events shall
constitute an Event of Default:
(a) The Trust shall fail to make any payment of the principal
of the Purchase Money Note within ten (10) days after the same becomes due and
payable; or
(b) The Trust shall fail to pay any interest on the Purchase
Money Note within ten (10) days after the same becomes due and payable.
SECTION 5.02. Acceleration. (a) Upon the occurrence of an Event of
Default, the Corporation shall have the right to exercise all rights and
remedies available to a creditor at law
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or in equity and to recover from the Property held in the ESOP Suspense Account
paid to it by the Corporation and held by the Trust, and those contributions
(other than contributions of employer securities) made by the Corporation to the
Trust to enable the Trust to meet the Trust's obligations hereunder and under
the Purchase Money Note, but which contributions and dividends have not been so
applied by the Trust. Notwithstanding the rights set forth in the preceding
sentence and any other provision of any of the Purchase Money Loan Documents, in
no event shall any recovery by the Corporation as a result of an Event of
Default hereunder exceed the dollar amount of the default in question.
(b) In the event the ESOP Shares are converted pursuant to the
Alternative Conversion Right set forth in Section 7(b) of the Stock Purchase
Agreement, the entire unpaid principal balance and any and all interest accrued
on such unpaid principal balance owing under the Purchase Money Note shall
immediately become due and payable.
SECTION 5.03 Purchase Money Pledge Agreement; Remedies. In addition to
the rights and remedies provided in Section 5.02 hereof, the Corporation shall
have all of the rights and remedies afforded under the terms of the Purchase
Money Pledge Agreement. Each of the rights, powers and remedies of the
Corporation set forth in this Agreement and the Purchase Money Pledge Agreement
may be exercised by the Corporation. No partial exercise of any right, remedy or
power by the Corporation shall preclude any further exercise of any right, power
or remedy consistent with the terms hereof. The rights, remedies and powers of
the Corporation are cumulative and are in addition to any provided by law or
equity. No delay or omission on the part of the Corporation in exercising any
right, power or remedy shall impair such right, power or remedy or be construed
as a waiver of any Event of Default or acquiescence therein. No waiver of any
Event of Default shall extend to any subsequent Event of Default of the same or
a dissimilar nature. The Corporation in its discretion may proceed against the
collateral held pursuant to the Purchase Money Pledge Agreement without first
proceeding against the Trust.
SECTION 5.04. Waivers. The Trust waives presentment, demand, notice of
dishonor and protest, and all demands and notices of any action taken by the
Corporation under this Agreement, except as otherwise provided herein, are
hereby waived, and any indulgence of the Corporation, substitution for, exchange
of or release of collateral, or addition or release of any person liable on the
collateral is hereby assented and consented to and shall not operate or be
claimed to operate to release or exonerate any other collateral or person or any
claim of the Corporation.
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. Notices. Any notice required or permitted by or in
connection with this Agreement shall be in writing and shall be made by
facsimile, or by hand delivery, or by overnight delivery service, or by
certified mail, return receipt requested, postage prepaid, addressed to the
parties at the appropriate address set forth below or to such other address as
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may be hereafter specified by written notice by the parties to each other.
Notice shall be considered given as of the earlier of the date of actual
receipt, or the date of the facsimile or hand delivery, one (1) calendar day
after delivery to an overnight delivery service, or three (3) calendar days
after the date of mailing, independent of the date of actual delivery or whether
delivery is ever in fact made, as the case may be, provided the giver of notice
can establish that notice was given as provided herein. Notwithstanding the
aforesaid procedures, any written notice or demand upon any party, in fact
received by such party, shall be sufficient notice or demand as of the date so
received.
If to the Corporation: The Xxxxxxx-Xxxxxxxx Company
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Facsimile No. 000-000-0000
Attn: Vice President and Treasurer
With a copy to: The Xxxxxxx-Xxxxxxxx Company
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Facsimile No. 000-000-0000
Attn: Vice President, General Counsel
and Secretary
If to the Trust: The Xxxxxxx-Xxxxxxxx Company Employee
Stock Purchase and Savings Plan
c/o GreatBanc Trust Company
00 Xxxxxxxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000-0000
Facsimile No.: 000-000-0000
Attn: Xx. Xxxxxxx X. Xxxxxxx, Xx.
Senior Vice President
With a copy to: The Xxxxxxx-Xxxxxxxx Company
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Facsimile No. 000-000-0000
Attn: Vice President-Human Resources
SECTION 6.02. Further Assurances. The Trust shall execute and deliver
to the Corporation such further assurances of this Agreement and the matters
contemplated by this Agreement and the other Purchase Money Loan Documents,
including any Lien Notices in favor of the Corporation, promptly from time to
time upon the Corporation's written request.
SECTION 6.03. Successors and Assigns; Assignment; No Third Party
Beneficiaries. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns. No party shall
assign any of its rights or obligations
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hereunder without the prior written consent of the other parties. This Agreement
is not intended to, and shall not be construed to, create any rights as a
third-party beneficiary or otherwise in favor of any person or entity who is not
a party to this Agreement.
SECTION 6.04. Severability. Any provision of this Agreement prohibited
by the laws of any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition, or modified to conform with such laws,
without invalidating the remaining provisions of this Agreement, and any such
prohibition in any jurisdiction shall not invalidate such provisions in any
other jurisdiction.
SECTION 6.05. Governing Law. This Agreement and the other Purchase
Money Loan Documents and the rights and obligations of the parties hereunder and
thereunder shall be governed by and construed and interpreted in accordance with
the laws of the State of Ohio, including all matters of construction, validity
and performance, regardless of the location of the parties or any Property.
SECTION 6.06.Jurisdiction; Venue; Service. The Trust irrevocably
consents to the non-exclusive personal jurisdiction of the courts of the State
of Ohio and, if a basis for federal jurisdiction exists, the non-exclusive
jurisdiction of the United States District Court for the Northern District of
Ohio. The Trust agrees that venue shall be proper in any common pleas court of
the State of Ohio selected by the Corporation or, if a basis for federal
jurisdiction exists, in any Division of the United States District Court for the
Northern District of Ohio. The Trust waives any right to object to the
maintenance of any suit or claim in any of the state or federal courts of the
State of Ohio on the basis of improper venue or of inconvenience of forum.
SECTION 6.07. Counterparts. This Agreement may be executed in any
number of counterparts, each of which when so executed and delivered shall be an
original, but all of which shall constitute one and the same instrument. It
shall not be necessary in making proof of this Agreement to produce or account
for more than one such counterpart.
SECTION 6.08. Survival. All representations and warranties and
indemnities made by the Trust herein shall survive delivery of the other
Purchase Money Loan Documents and the making of the Loan.
SECTION 6.09. Remedies Cumulative. No failure or delay on the part of
the Corporation in exercising any right, power or privilege hereunder or under
any other Purchase Money Loan Document and no course of dealing between the
Trust and the Corporation shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, power or privilege hereunder or under
any other Purchase Money Loan Document preclude any other or further exercise
thereof or the exercise of any other right, power or privilege hereunder or
thereunder. The rights and remedies provided herein are cumulative and not
exclusive of any rights or remedies which the Corporation would otherwise have.
No notice to or demand on the Trust in any case shall entitle the Trust to any
other or further notice or demand in similar or other circumstances or
constitute a waiver of the rights of the Corporation to any other or further
action in any circumstances without notice or demand.
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SECTION 6.10. Entire Agreement; Amendments, etc. This Agreement, along
with the Stock Purchase Agreement, the Purchase Money Note and the Purchase
Money Pledge Agreement, contains the entire agreement between the parties hereto
with respect to their subject matter and supersedes all prior negotiations,
discussions, agreements, arrangements and understandings, written or oral,
relating to the subject matter of this Agreement. No amendment or modification
of, or any waiver of any provision of, this Agreement shall be effective against
a party unless set forth in a writing signed by such party.
SECTION 6.11. Action Taken as Trustee. GreatBanc Trust Company ("GBTC")
has executed and delivered this Agreement and the other Purchase Money Loan
Documents, not in its individual capacity, but solely in its capacity as Trustee
of the Trust. The performance of this Agreement and the other Purchase Money
Loan Documents by the Trust and any and all duties, obligations and liabilities
of the Trustee hereunder will be effected by GBTC only as Trustee. GBTC does not
undertake nor shall it have any individual or corporate liability or obligation
of any nature whatsoever by virtue of the execution and delivery of this
Agreement and the other Purchase Money Loan Documents or the representations,
covenants or warranties contained herein or therein, except for the following
representations which are made by it expressly in its individual capacity:
(a) Power of the Trustee. The Trustee is a duly organized and validly
existing corporation in good standing under the laws of its jurisdiction of
incorporation (or organization) and has all power and authority necessary to act
as trustee (as defined in ERISA Section 402(a)(2)) of the Trust and exercise
trust powers under the laws of the United States of America as a national
banking association.
(b) No Conflicts. The execution, delivery and performance of this
Agreement and the other Purchase Money Loan Documents by the Trustee in its
capacity as trustee of the employee stock ownership plan feature of the Trust,
and the consummation of the transactions contemplated by this Agreement and the
other Purchase Money Loan Documents (i) will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement or other
material agreement or material instrument to which the Trustee is a party or by
which the Trustee is bound, (ii) will not result in any violation of any statute
or any order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Trustee (other than with respect to any such
violation related to the prohibited transaction provisions of ERISA, for which
the Corporation and the Trust acknowledge and agree that the Trustee shall make
no representation or warranty hereunder related to such prohibited transaction
provisions), and (iii) will not result in any violation of the provisions of the
charter or by-laws of the Trustee. No consent, approval, authorization or order
of, or filing or registration with, any governmental agency or body is required
for the execution, delivery and performance of this Agreement and the other
Purchase Money Loan Documents, and the consummation of the transactions
contemplated hereby and thereby.
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SECTION 6.12. Exempt Loan. The loan made to the Trust hereunder is
intended to be an "exempt loan" within the meaning of Code Section 4975(d)(3)
and ERISA Section 408(b)(3). Accordingly, repayment of principal and interest
thereon is restricted, and, except as otherwise allowed by Code Section
4975(d)(3) and ERISA Section 408(b)(3), shall be made only from (i) collateral
given for the Loan; (ii) employer contributions (other than contributions of
employer securities) made to the Trust to repay the Loan; or (iii) earnings
attributable to such collateral and the investment of such contributions,
including any dividends, earnings or distributions on the ESOP Shares held by
the Trust (within the meaning of Treasury Regulation Section 54.4975-7(b)(5)).
The Trust shall account for such assets separately on its books of account until
all obligations due under this Agreement and the other Purchase Money Loan
Documents have been paid in full. Except to the extent permitted herein and in
the Purchase Money Pledge Agreement, the Corporation shall have no recourse
whatsoever to any other assets of the Trust for repayment. Wherever possible,
each provision of this Agreement shall be interpreted in such manner as to be
effective and valid under such statutes, or regulations issued thereunder, but
if any provision of this Agreement shall be prohibited by or invalid under such
statutes or regulations, such provision shall be ineffective to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
IN WITNESS WHEREOF, the Corporation and the Trust, intending to be
legally bound hereby, have caused this Agreement to be duly executed and
delivered under seal as of the date first above written.
THE XXXXXXX-XXXXXXXX COMPANY
By: /S/
------------------------------------------
Xxxxxxx X. Xxxxxx
Vice President and Treasurer
THE XXXXXXX-XXXXXXXX COMPANY EMPLOYEE STOCK
PURCHASE AND SAVINGS PLAN, acting by and
through GreatBanc Trust Company, not in its
individual capacity (except as expressly
specified in Section 6.11 of this Agreement)
but solely in its capacity as trustee of the
employee stock ownership plan feature of the
Trust
By: /S/
------------------------------------------
Xxxxxxx X. Xxxxxxx, Xx.
Senior Vice President
13
EXHIBIT A
THIS PURCHASE MONEY NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAW AND MAY NOT BE SOLD,
TRANSFERRED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATIONS OR AN
EXEMPTION THEREFROM.
PURCHASE MONEY NOTE
$350,000,000 August 27, 2003
FOR VALUE RECEIVED, The Xxxxxxx-Xxxxxxxx Company Employee Stock
Purchase and Savings Plan (the "Trust"), acting by and through GreatBanc Trust
Company, not in its individual capacity but solely in its capacity as trustee of
the employee stock ownership plan feature of the Trust, hereby promises to pay,
in lawful money of the United States of America and in immediately available
funds, to the order of The Xxxxxxx-Xxxxxxxx Company (the "Corporation"), at the
principal offices of the Corporation at 000 Xxxxxxxx Xxxxxx, X.X., Xxxxxxxxx, XX
00000, Attn: Vice President and Treasurer, or at such other place as the
Corporation shall designate in writing, the aggregate principal amount of Three
Hundred and Fifty Million Dollars ($350,000,000) with interest thereon at the
rate of 4.5% per annum on the unpaid balance thereof.
This Purchase Money Note is issued pursuant to Section 2.02 of the
Purchase Money Loan Agreement of even date herewith, between the Corporation and
the Trust (the "Purchase Money Loan Agreement"), which Purchase Money Loan
Agreement is incorporated herein in its entirety. All capitalized terms used
herein, unless otherwise defined, shall have the meanings ascribed to them in
the Purchase Money Loan Agreement. Reference is hereby made to the Purchase
Money Loan Agreement for the terms and conditions under which the loan evidenced
hereby was made, and under which amounts due hereunder may be prepaid,
accelerated or in default. This Purchase Money Note is secured under the terms
of a Purchase Money Pledge Agreement of even date herewith between the
Corporation and the Trust, and the Corporation is entitled to the benefits of
the security described therein.
Subject to the provisions of the Purchase Money Loan Agreement, the
principal amount of the indebtedness evidenced hereby shall be due and payable
in installments of Eight Million Seven Hundred Fifty Thousand Dollars
($8,750,000) each, with the first such payment due on September 20, 2003, and
with each subsequent installment becoming due and payable on the 20th day of
December, March, June and September in each year thereafter. Interest accrued on
the unpaid balance of this Purchase Money Note shall be due and payable on the
same date on which a payment of principal is due and payable. The entire unpaid
principal balance hereof to the extent not sooner paid, together with any unpaid
interest thereon, shall be due and payable on the date which is ten (10) years
after the date of this Purchase Money Note. Notwithstanding the foregoing
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payment schedule to the contrary, the entire unpaid principal balance and any
and all interest accrued on such unpaid principal balance shall immediately
become due and payable upon the Trust exercising its right to convert the ESOP
Shares into the Corporations' common stock pursuant to the alternative
conversion right set forth in Section 7(b) of that certain Stock Purchase
Agreement between the Corporation and the Trust of even date herewith.
This Purchase Money Note shall be construed under the laws of the State
of Ohio to the extent not preempted by federal Law.
The obligation evidenced by this Purchase Money Note is, and is
intended to be, an "exempt loan" within the meaning of Code Section 4975(d)(3)
and ERISA Section 408(b)(3). Accordingly, repayment of principal and interest is
restricted and, except as otherwise allowed by Code Section 4975(d)(3) and ERISA
Section 408(b)(3), shall be made only from: (i) collateral given for the loan
evidenced hereby; (ii) employer contributions (other than contributions of
employer securities) made to the Trust to repay such loan; and (iii) earnings
attributable to such collateral and the investment of such contributions,
including any dividends, earnings or distributions on the ESOP Shares held by
the Trust (within the meaning of Treasury Regulation Section 54.4975-7(b)(5)).
The Corporation or any subsequent holder of this Purchase Money Note shall have
no recourse whatsoever to any other assets of the Trust for repayment except to
the extent expressly permitted by the Purchase Money Pledge Agreement. Further,
if any provision of this Purchase Money Note conflicts with the requirements for
loans set forth in such statutes, or in any valid regulations issued thereunder,
such provisions shall be enforceable only to the extent permitted by such
statutes and regulations. Wherever possible, each provision of this Purchase
Money Note shall be interpreted in such manner as to be effective and valid
under such statutes or regulations issued thereunder, but if any such provisions
of this Purchase Money Note shall be prohibited by or invalid under such
statutes or regulations, such provision shall be ineffective to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Purchase Money Note.
IN WITNESS WHEREOF, the Trust has executed and delivered this Purchase
Money Note as of the day and year first above written.
THE XXXXXXX-XXXXXXXX COMPANY EMPLOYEE STOCK
PURCHASE AND SAVINGS PLAN, acting by and
through GreatBanc Trust Company, not in its
individual capacity, but solely in its
capacity as trustee of the employee stock
ownership plan feature of the Trust
By:
------------------------------------------
Xxxxxxx X. Xxxxxxx, Xx.
Senior Vice President
15
EXHIBIT B
PURCHASE MONEY PLEDGE AGREEMENT
This Pledge Agreement (this "Agreement") is made and entered into as of
the 27th day of August, 2003 (the "Effective Date"), by and between The
Xxxxxxx-Xxxxxxxx Company, an Ohio corporation (the "Corporation"), and The
Xxxxxxx-Xxxxxxxx Company Employee Stock Purchase and Savings Plan (the "Trust"),
acting by and through GreatBanc Trust Company, an Illinois corporation (the
"Trustee"), not in its individual capacity but solely in its capacity as trustee
of the employee stock ownership plan feature of the Trust.
WHEREAS, pursuant to the terms of a Purchase Money Loan Agreement of
even date between the Trust and the Corporation (the "Loan Agreement"), the
Trust is indebted to the Corporation in the amount of Three Hundred and Fifty
Million Dollars ($350,000,000) evidenced by the Trust's Purchase Money Note of
even date herewith (the "Note") in such amount; and
WHEREAS, in consideration of the Trust's obligation under the Note, the
Trust has acquired from the Corporation 350,000 shares of the Corporation's
Convertible Participating Serial Preferred Stock, without par value, (the
"Pledged Shares"); and
WHEREAS, to secure the obligations of the Trust under the Loan
Agreement and the Note, the Trust has agreed to grant a security interest to the
Corporation in the Pledged Shares, pursuant to the terms of this Agreement;
NOW, THEREFORE, in consideration of the Loan Agreement and the mutual
covenants and agreements contained herein, the Corporation and the Trust agree
as follows:
1. Pledge of Pledged Shares. As security and collateral for the Trust's
obligations under the Loan Agreement and the Note, the Trust hereby pledges,
grants a security interest in and assigns to the Corporation, its successors and
assigns, all of the Trust's right, title and interest in and to the Pledged
Shares and the certificates, if any, representing the Pledged Shares, and all
dividends, cash, instruments and other property from time to time received,
receivable or otherwise distributed in respect of, in exchange for, upon the
conversion of, or upon the redemption of, any or all of the Pledged Shares.
Until the termination or release of such security interest hereunder, in whole
or in part, the Pledged Shares shall be allocated to the ESOP suspense account.
2. Term of Pledge; Release of Collateral; Release from ESOP Suspense
Account. The pledge of the Pledged Shares shall continue until the date (the
"Termination Date") on which occurs the first of either (i) all obligations of
the Trust under the Loan Agreement have been paid
16
in full and all the terms and conditions of the Note have been satisfied or (ii)
the Trust has been released from its obligations thereunder; provided that prior
to the Termination Date, after each payment of principal is made on the Note,
there shall be released from the pledge and the ESOP suspense account that
number of shares equal to an amount determined by multiplying the number of
Pledged Shares held in the ESOP suspense account immediately prior to the
payment of principal is made, by a fraction, the numerator of which shall be the
amount of principal paid on the Note at such time and the denominator of which
shall be the sum of the numerator plus the principal to be paid in the future,
determined without regard to any possible renewals or extensions of the Note.
Notwithstanding the foregoing, if the Corporation agrees with the Trust to
terminate the Corporation's security interest in the Pledged Shares and such
security interest is replaced by a security interest granted by the Trust to any
other person, then such Pledged Shares shall, nevertheless, continue to be
allocated to the ESOP suspense account and shall be released from the ESOP
suspense account only pursuant to the agreement between the Trust and any other
person to which the Trust grants a security interest in the Pledged Shares.
3. Voting, Etc. The Trust shall be entitled to vote and tender the
Pledged Shares, to exercise conversion and redemption rights, and to give
consents, waivers and ratifications in respect thereof, all in accordance with,
and to the extent provided under, the provisions of the plan documents for the
Trust, the terms of the Pledged Shares and any and all written agreements
between the Corporation and the Trust.
4. Dividends and Other Distributions. All cash dividends payable in
respect of the Pledged Shares shall be paid to the Trust and held under this
Agreement as additional security. If, during the term of this pledge, any share
dividend, stock split or other change in the capital structure of the
Corporation occurs with respect to the Pledged Shares or a subscription, warrant
or other option is issued or becomes exercisable with respect to the Pledged
Shares, or if any of the Pledged Shares are converted from preferred stock, to
the extent permitted by applicable law, all shares or other securities issued by
reason of any such change, subscription, warrant, option or conversion with
respect to the Pledged Shares shall be held under the terms of this Agreement as
additional security for the Note.
5. Default; Remedies. Subject to the limitations contained in Section
18 hereof, upon the occurrence of an Event of Default, the Corporation shall be
entitled, without demand of performance or other demand, but only to the extent
of the failure of the Trust to meet the payment schedule of the Note:
a. to collect, receive and realize upon the encumbered Pledged
Shares, including any dividends, earnings or distributions thereon, or
any part thereof; and
b. to transfer and register the Pledged Shares into the
Corporation's name or the name of its nominee or nominees; and
c. to the extent permitted by applicable law and the plan
documents for the Trust to vote the Pledged Shares (whether or not
transferred or registered into the name of the Corporation) and give
all consents, waivers and ratifications in respect thereof and
17
otherwise act with respect to the Pledged Shares as though the
Corporation were the outright owner thereof; and
d. to sell the Pledged Shares upon no less than ten (10) days'
prior notice to the Trust of the time and place of any public or
private sale, and without liability to the Trust for any diminution in
price which may have occurred; and
e. to any and all remedies available to the Corporation as a
secured creditor under the Uniform Commercial Code of the State of Ohio
as then in effect (the "UCC").
6. Application of Proceeds. The Corporation shall apply any amounts
received pursuant to this Agreement first to the amounts then due and owing
under the Note and Loan Agreement and shall disburse any excess proceeds to the
Trust to be held in the Suspense Account.
7. Perfection. For the purpose of perfecting the security interest
hereunder, pursuant to Section 8-106 of the UCC, the Corporation, as issuer of
the Pledged Shares, hereby agrees that it will comply with instructions
regarding the Pledged Shares originated by the Corporation, as secured party
hereunder, without further consent by the Trust.
8. Notices. Any notice required or permitted by or in connection with
this Agreement shall be in writing and shall be made by facsimile, or by hand
delivery, or by overnight delivery service, or by certified mail, return receipt
requested, postage prepaid, addressed to the parties at the appropriate address
set forth below or to such other address as may be hereafter specified by
written notice by the parties to each other. Notice shall be considered given as
of the earlier of the date of actual receipt, or the date of the facsimile or
hand delivery, one (1) calendar day after delivery to an overnight delivery
service, or three (3) calendar days after the date of mailing, independent of
the date of actual delivery or whether delivery is ever in fact made, as the
case may be, provided the giver of notice can establish that notice was given as
provided herein. Notwithstanding the aforesaid procedures, any written notice or
demand upon any party, in fact received by such party, shall be sufficient
notice or demand as of the date so received.
If to the Corporation: The Xxxxxxx-Xxxxxxxx Company
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Facsimile No. 000-000-0000
Attn: Vice President and Treasurer
With a copy to: The Xxxxxxx-Xxxxxxxx Company
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Facsimile No. 000-000-0000
Attn: Vice President, General Counsel
and Secretary
18
If to the Trust: The Xxxxxxx-Xxxxxxxx Company Employee
Stock Purchase and Savings Plan
c/o GreatBanc Trust Company
00 Xxxxxxxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000-0000
Facsimile No. 000-000-0000
Attn: Xxxxxxx X. Xxxxxxx, Xx.
Senior Vice President
With a copy to: The Xxxxxxx-Xxxxxxxx Company
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Facsimile No. 000-000-0000
Attn: Vice President-Human Resources
9. Further Assurances. The Trust shall execute and deliver to the
Corporation such further assurances of this Agreement and the matters
contemplated by this Agreement and the other Purchase Money Loan Documents,
including any Lien Notices in favor of the Corporation, promptly from time to
time upon the Corporation's written request.
10. Successors and Assigns; Assignment; No Third Party Beneficiaries.
This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns. No party shall assign any of
its rights or obligations hereunder without the prior written consent of the
other parties. This Agreement is not intended to, and shall not be construed to,
create any rights as a third-party beneficiary or otherwise in favor of any
person or entity who is not a party to this Agreement.
11. Severability. Any provision of this Agreement prohibited by the
laws of any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such prohibition, or modified to conform with such laws, without
invalidating the remaining provisions of this Agreement, and any such
prohibition in any jurisdiction shall not invalidate such provisions in any
other jurisdiction.
12. Governing Law. This Agreement and the other Purchase Money Loan
Documents and the rights and obligations of the parties hereunder and thereunder
shall be governed by and construed and interpreted in accordance with the laws
of the State of Ohio, including all matters of construction, validity and
performance, regardless of the location of the parties or any Property.
13. Jurisdiction; Venue; Service. The Trust irrevocably consents to the
non-exclusive personal jurisdiction of the courts of the State of Ohio and, if a
basis for federal jurisdiction exists, the non-exclusive jurisdiction of the
United States District Court for the Northern District of Ohio. The Trust agrees
that venue shall be proper in any common pleas court of the State of Ohio
selected by the Corporation or, if a basis for federal jurisdiction exists, in
any Division of the United States District Court for the Northern District of
Ohio. The Trust waives any right to
19
object to the maintenance of any suit or claim in any of the state or federal
courts of the State of Ohio on the basis of improper venue or of inconvenience
of forum.
14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall constitute one and the same instrument. It shall not be
necessary in making proof of this Agreement to produce or account for more than
one such counterpart.
15. Survival. All representations and warranties and indemnities made
by the Trust herein shall survive delivery of the Purchase Money Note and the
making of the Loan.
16. Remedies Cumulative. No failure or delay on the part of the
Corporation in exercising any right, power or privilege hereunder or under any
other Purchase Money Loan Document and no course of dealing between the Trust
and the Corporation shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, power or privilege hereunder or under any other
Purchase Money Loan Document preclude any other or further exercise thereof or
the exercise of any other right, power or privilege hereunder or thereunder. The
rights and remedies provided herein are cumulative and not exclusive of any
rights or remedies which the Corporation would otherwise have. No notice to or
demand on the Trust in any case shall entitle the Trust to any other or further
notice or demand in similar or other circumstances or constitute a waiver of the
rights of the Corporation to any other or further action in any circumstances
without notice or demand.
17. Entire Agreement; Amendments, etc. This Agreement, along with the
Loan Agreement, the Note and that certain Stock Purchase Agreement between the
Corporation and the Trust of even date herewith, contains the entire agreements
between the parties hereto with respect to their subject matter and supersedes
all prior negotiations, discussions, agreements, arrangements and
understandings, written or oral, relating to the subject matter of this
Agreement. No amendment or modification of, or any waiver of any provision of,
this Agreement shall be effective against a party unless set forth in a writing
signed by such party.
18. Limitations on Recourse. Notwithstanding anything herein to the
contrary, there shall be no recourse hereunder or with respect to the Note
against the Trust or the Trustee, except to the extent of the assets of the
Trust to which a creditor may properly have recourse under Treasury Regulation
Section 54.4975-7(b) (and any successor provision thereto). The Trust shall
account for such assets separately on its books of account until all obligations
due under the Loan Agreement have been paid in full. The Trustee is entering
into this Agreement not in its individual capacity but solely as Trustee of the
Trust, and no personal or corporate liability or personal or corporate
responsibilities are assumed by, or shall at any time be asserted or enforceable
against, the Trustee in its individual or corporate capacity or any other
officer, employee or agent of the Trustee in his or her individual or corporate
capacity under, or with respect to, this Agreement.
20
19. Definitions. All capitalized terms used but not defined herein
shall have the meanings assigned thereto in the Loan Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, or
have caused it to be duly executed by their respective authorized officers, as
of the day and year first above written.
THE XXXXXXX-XXXXXXXX COMPANY EMPLOYEE STOCK
PURCHASE AND SAVINGS PLAN, acting by and
through GreatBanc Trust Company, not in its
individual capacity but solely in its
capacity as trustee of the employee stock
ownership plan feature of the Trust
By:
----------------------------------------
Xxxxxxx X. Xxxxxxx, Xx.
Senior Vice President
THE XXXXXXX-XXXXXXXX COMPANY
By:
----------------------------------------
Xxxxxxx X. Xxxxxx
Vice President and Treasurer
21
