Brady Corporation Brady Worldwide, Inc. Tricor Direct, Inc. Second Supplement to Note Purchase Agreement Dated as of March 23, 2007 Re: $150,000,000 5.33% Series 2007-A Senior Notes Due March 23, 2017
Exhibit 10.1
Xxxxx Corporation
Xxxxx Worldwide, Inc.
Tricor Direct, Inc.
Xxxxx Worldwide, Inc.
Tricor Direct, Inc.
Second Supplement to Note Purchase Agreement
Dated as of March 23, 2007
Re: $150,000,000 5.33% Series 2007-A Senior Notes
Due March 23, 2017
Due March 23, 2017
Xxxxx Corporation
Xxxxx Worldwide, Inc.
Tricor Direct, Inc.
0000 Xxxx Xxxx Xxxx Xxxx
Xxxxxxxxx, XX 00000
Xxxxx Worldwide, Inc.
Tricor Direct, Inc.
0000 Xxxx Xxxx Xxxx Xxxx
Xxxxxxxxx, XX 00000
Dated as of
March 23, 2007
March 23, 2007
To the Purchaser(s) named in
Schedule A hereto
Schedule A hereto
Ladies and Gentlemen:
This Second Supplement to Note Purchase Agreement (this “Supplement”) is among each of
Xxxxx Corporation, a Wisconsin corporation (the “Company”), Xxxxx Worldwide, Inc., a Wisconsin
corporation (“Xxxxx Worldwide”), and Tricor Direct, Inc., a Delaware corporation (“Tricor Direct”
and, together with the Company and Xxxxx Worldwide, the “Obligors”), and the institutional
investors named on Schedule A attached hereto (the “Purchasers”).
Reference is hereby made to that certain Note Purchase Agreement dated as of June 28, 2004 (as
supplemented and modified from time to time, the “Note Purchase Agreement”) among the Obligors and
the purchasers listed on Schedule A thereto, which Note Purchase Agreement was supplemented
pursuant to that certain First Supplement to Note Purchase Agreement dated as of February 14, 2006
(the “First Supplement”) among the Obligors and the additional purchasers listed on Schedule A
thereto. All capitalized terms not otherwise defined herein shall have the same meaning as
specified in the Note Purchase Agreement. Reference is further made to Section 4.12 of the Note
Purchase Agreement which requires that, prior to the delivery of any Additional Notes, the Obligors
and each Additional Purchaser shall execute and deliver a Supplement.
The Company hereby agrees with the Purchaser(s) as follows:
1. The Obligors have authorized the issue and sale of $150,000,000 aggregate principal amount
of 5.33% Series 2007-A Senior Notes due March 23, 2017 (the “Series 2007-A Notes”). The Series
2007-A Notes, together with the Series 2004-A Notes initially issued pursuant to the Note Purchase
Agreement, the Series 2006-A Notes issued pursuant to the First Supplement and each series of
Additional Notes which may from time to time hereafter be issued pursuant to the provisions of
Section 2.2 of the Note Purchase Agreement, are collectively referred to as the “Notes” (such term
shall also include any such notes issued in substitution therefor pursuant to Section 13 of the
Note Purchase Agreement). The Series 2007-A Notes shall
be substantially in the form set out in Exhibit 1 hereto with such changes therefrom, if any,
as may be approved by the Purchasers and the Obligors.
2. Subject to the terms and conditions hereof and as set forth in the Note Purchase Agreement
and on the basis of the representations and warranties hereinafter set forth, the Obligors agree to
issue and sell to each Purchaser, and each Purchaser agrees to purchase from the Obligors, Series
2007-A Notes in the principal amount set forth opposite such Purchaser’s name on Schedule A hereto
at a price of 100% of the principal amount thereof on the Closing Date hereinafter defined.
3. The sale and purchase of the Series 2007-A Notes to be purchased by each Purchaser shall
occur at the offices of Xxxxxxx and Xxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, at
10:00 a.m. Chicago time, at a closing (the “Closing”) on March 23, 2007 or on such other
Business Day thereafter on or prior to March 30, 2007 as may be agreed upon by the Obligors and the
Purchasers (the “Closing Date”). At the Closing, the Obligors will deliver to each Purchaser the
Series 2007-A Notes to be purchased by such Purchaser in the form of a single Series 2007-A Note
(or such greater number of Series 2007-A Notes in denominations of at least $100,000 as such
Purchaser may request) dated the Closing Date and registered in such Purchaser’s name (or in the
name of such Purchaser’s nominee), against delivery by such Purchaser to the Obligors or its order
of immediately available funds for the benefit of the Obligors to Account Number 00000000, at M&I
Bank, Milwaukee, Wisconsin, ABA Number 000000000, in the Account Name of “Xxxxx Corporation.” If,
at the Closing, the Obligors shall fail to tender such Series 2007-A Notes to any Purchaser as
provided above in this Section 3, or any of the conditions specified in Section 4 shall not have
been fulfilled to any Purchaser’s satisfaction, such Purchaser shall, at such Purchaser’s election,
be relieved of all further obligations under this Supplement, without thereby waiving any rights
such Purchaser may have by reason of such failure or such nonfulfillment.
4. The obligation of each Purchaser to purchase and pay for the Series 2007-A Notes to be sold
to such Purchaser at the Closing is subject to the fulfillment to such Purchaser’s satisfaction,
prior to the Closing, of the conditions set forth in Sections 2.2 and 4 of the Note Purchase
Agreement (other than Sections 4.1 and 4.13 thereof) with respect to the Series 2007-A Notes to be
purchased at the Closing with the same force and effect as if each reference to “Series 2004-A
Notes” (or words of similar import) set forth therein (and in the related Exhibits) was modified to
refer the “Series 2007-A Notes” (or words of similar import) and each reference to “this Agreement”
(or words of similar import) therein was modified to refer to the Note Purchase Agreement as
supplemented by this Supplement and each reference to the “Closing Date” therein was modified to
refer to the “Closing Date” as defined herein, and to the following additional conditions:
(a) Except as supplemented, amended or superceded by the representations and warranties
set forth in Exhibit A hereto, each of the representations and warranties of the Obligors
set forth in Section 5 of the Note Purchase Agreement shall be correct as of the Closing
Date and the Obligors shall have delivered to each Purchaser an Officer’s Certificate, dated
the Closing Date certifying that such condition has been fulfilled.
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(b) Each of the representations and warranties of the Subsidiary Guarantors in the
Subsidiary Guaranty shall be correct as of the Closing Date and the Subsidiary Guarantors
shall have delivered to each Purchaser an Officer’s Certificate, dated the Closing Date
certifying that such condition has been fulfilled.
(c) Contemporaneously with the Closing, the Obligors shall sell to each Purchaser, and
each Purchaser shall purchase, the Series 2007-A Notes to be purchased by such Purchaser at
the Closing as specified in Schedule A.
(d) Each Purchaser shall have received evidence, in form and substance satisfactory to
it, of the consent of CT Corporation System in New York, New York to the appointment and
designation provided for by Section 23 of the Note Purchase Agreement for the period from
the Closing Date through March 23, 2018 (and the prepayment in full of all fees in respect
thereof).
5. On March 23, 2011 and on each March 23 thereafter to and including March 23, 2016, the
Obligors will prepay $21,428,571 principal amount (or such lesser principal amount as shall then be
outstanding) of the Series 2007-A Notes at par and without payment of Make-Whole Amount or any
other premium. The entire unpaid principal amount of the Series 2007-A Notes shall become due and
payable on March 23, 2017.
Upon any partial prepayment of the Series 2007-A Notes pursuant to Section 8.2 of the Note
Purchase Agreement or partial purchase thereof pursuant to Section 8.5 of the Note Purchase
Agreement, the principal amount of each required prepayment of the Series 2007-A Notes becoming due
under this Section 5 on and after the date of such prepayment or purchase shall be reduced in the
same proportion as the aggregate unpaid principal amount of the Series 2007-A Notes is reduced as a
result of such prepayment or purchase.
6. The term “Make-Whole Amount” means with respect to a Series 2007-A Note an amount equal to
the excess, if any, of the Discounted Value of the Remaining Scheduled Payments with respect to the
Called Principal of the Series 2007-A Note, over the amount of such Called Principal, provided that
the Make-Whole Amount may in no event be less than zero. For the purposes of determining the
Make-Whole Amount, the following terms have the following meanings:
“Called Principal” means, with respect to a Series 2007-A Note, the principal of the
Series 2007-A Note that is to be prepaid pursuant to Section 8.2 of the Note Purchase
Agreement or has become or is declared to be immediately due and payable pursuant to Section
12.1 of the Note Purchase Agreement, as the context requires.
“Discounted Value” means, with respect to the Called Principal of a Series 2007-A Note,
the amount obtained by discounting all Remaining Scheduled Payments with respect to such
Called Principal from their respective scheduled due dates to the Settlement Date with
respect to such Called Principal, in accordance with accepted financial practice and at a
discount factor (applied on the same periodic basis as that on
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which interest on the Series 2007-A Note is payable) equal to the Reinvestment Yield
with respect to such Called Principal.
“Reinvestment Yield” means, with respect to the Called Principal of a Series 2007-A
Note, 0.50% plus the yield to maturity implied by (i) the yields reported, as of 10:00 A.M.
(New York City time) on the second Business Day preceding the Settlement Date with respect
to such Called Principal, on the display designated as “PX-1” on the Bloomberg Financial
Market Screen (or such other display as may replace such display) for actively traded U.S.
Treasury securities having a maturity equal to the Remaining Average Life of such Called
Principal as of such Settlement Date, or (ii) if such yields are not reported as of such
time or the yields reported as of such time are not ascertainable, the Treasury Constant
Maturity Series Yields reported, for the latest day for which such yields have been so
reported as of the second Business Day preceding the Settlement Date with respect to such
Called Principal, in Federal Reserve Statistical Release H.15 (519) (or any comparable
successor publication) for actively traded U.S. Treasury securities having a constant
maturity equal to the Remaining Average Life of such Called Principal as of such Settlement
Date. Such implied yield will be determined, if necessary, by (a) converting U.S. Treasury
xxxx quotations to bond-equivalent yields in accordance with accepted financial practice and
(b) interpolating linearly on a straight line basis between (1) the actively traded U.S.
Treasury security with the maturity closest to and greater than the Remaining Average Life
and (2) the actively traded U.S. Treasury security with the maturity closest to and less
than the Remaining Average Life.
“Remaining Average Life” means, with respect to any Called Principal, the number of
years (calculated to the nearest one-twelfth year) obtained by dividing (i) such Called
Principal into (ii) the sum of the products obtained by multiplying (a) the principal
component of each Remaining Scheduled Payment with respect to such Called Principal by (b)
the number of years (calculated to the nearest one-twelfth year) that will elapse between
the Settlement Date with respect to such Called Principal and the scheduled due date of such
Remaining Scheduled Payment.
“Remaining Scheduled Payments” means, with respect to the Called Principal of a Series
2007-A Note, all payments of such Called Principal and interest thereon that would be due
after the Settlement Date with respect to such Called Principal if no payment of such Called
Principal were made prior to its scheduled due date, provided that if such Settlement Date
is not a date on which interest payments are due to be made under the terms of the Series
2007-A Note, then the amount of the next succeeding scheduled interest payment will be
reduced by the amount of interest accrued to such Settlement Date and required to be paid on
such Settlement Date pursuant to Section 8.2 or 12.1 of the Note Purchase Agreement.
“Settlement Date” means, with respect to the Called Principal of a Series 2007-A Note,
the date on which such Called Principal is to be prepaid pursuant to Section 8.2 of the Note
Purchase Agreement or has become or is declared to be immediately due and payable pursuant
to Section 12.1 of the Note Purchase Agreement, as the context requires.
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8. Each Purchaser represents and warrants that the representations and warranties set forth in
Section 6 of the Note Purchase Agreement are true and correct on the date hereof with respect to
the purchase of the Series 2007-A Notes by such Purchaser.
9. The Obligors and each Purchaser agree to be bound by and comply with the terms and
provisions of the Note Purchase Agreement as fully and completely as if such Purchaser were an
original signatory to the Note Purchase Agreement.
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The execution hereof shall constitute a contract between the Obligors and the Purchaser(s) for
the uses and purposes hereinabove set forth, and this Supplement may be executed in any number of
counterparts, each executed counterpart constituting an original but all together only one
agreement.
| Xxxxx Corporation |
||||
| By | /s/ Xxxxxxx X. Bolens | |||
| Name: | Xxxxxxx X. Bolens | |||
| Title: | Vice President and Treasurer | |||
| Xxxxx Worldwide, Inc. |
||||
| By | /s/ Xxxxxxx X. Bolens | |||
| Name: | Xxxxxxx X. Bolens | |||
| Title: | Vice President and Treasurer | |||
| Tricor Direct, Inc. |
||||
| By | /s/ Xxxxxxx X. Bolens | |||
| Name: | Xxxxxxx X. Bolens | |||
| Title: | Vice President and Treasurer | |||
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Accepted as of the date first written above.
| Bankers Life and Casualty Company Conseco Life Insurance Company Conseco Senior Health Insurance Company Conseco Health Insurance Company Washington National Insurance Company By: 40/86 Advisors, Inc., acting as Investment Advisor |
||||
| By | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Vice President | |||
| State Farm Life Insurance Company |
||||
| By | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Senior Investment Officer | |||
| By | /s/ Xxxx Xxxxxxx | |||
| Name: | Xxxx Xxxxxxx | |||
| Title: | Investment Officer | |||
| Fort Dearborn Life Insurance Company By: Advantus Capital Management, Inc. |
||||
| By | /s/ Xxxxxxxx X. Xxxxxxxx | |||
| Name: | Xxxxxxxx X. Xxxxxxxx | |||
| Title: | Vice President | |||
| Fidelity Life Association By: Advantus Capital Management, Inc. |
||||
| By | /s/ Xxxxxxxx X. Xxxxxxxx | |||
| Name: | Xxxxxxxx X. Xxxxxxxx | |||
| Title: | Vice President | |||
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| Colorado Bankers Life Insurance Company By: Advantus Capital Management, Inc. |
||||
| By | /s/ Xxxxxxxx X. Xxxxxxxx | |||
| Name: | Xxxxxxxx X. Xxxxxxxx | |||
| Title: | Vice President | |||
| American Family Life Insurance Company |
||||
| By | /s/ Xxxxxxx Xxxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxxx | |||
| Title: | Investment Director | |||
| The Union Central Life Insurance Company |
||||
| By: | /s/ Xxxxxx X. Xxxxx | |||
| Name: | Xxxxxx X. Xxxxx | |||
| Title: | Agent | |||
| Ameritas Life Insurance Corp. By: Ameritas Investment advisors, Inc., as Agent |
||||
| By | /s/ Xxxxxx X. Xxxxx | |||
| Name: | Xxxxxx X. Xxxxx | |||
| Title: | Vice President, Fixed Income Securities | |||
| Acacia Life Insurance Company By: Ameritas Investment Advisors Inc. as Agent |
||||
| By | /s/ Xxxxxx X. Xxxxx | |||
| Name: | Xxxxxx X. Xxxxx | |||
| Title: | Vice President - Fixed Income Securities | |||
-8-
| Ameritas Variable Life Insurance Company By: Ameritas Investment Advisors Inc. as Agent |
||||
| By | /s/ Xxxxxx X. Xxxxx | |||
| Name: | Xxxxxx X. Xxxxx | |||
| Title: | Vice President - Fixed Income Securities | |||
| Horizon Blue Cross Blue Shield of New Jersey By: Alliance-Xxxxxxxxx X.X., its Investment Advisor |
||||
| By | /s/ Xxx Xxxx | |||
| Name: | Xxx Xxxx | |||
| Title: | Senior Vice President | |||
| Axa Equitable Life Insurance Company |
||||
| By | /s/ Xxx Xxxx | |||
| Name: | Xxx Xxxx | |||
| Title: | Investment Officer | |||
| MONY Life Insurance Company |
||||
| By | /s/ Xxx Xxxx | |||
| Name: | Xxx Xxxx | |||
| Title: | Investment Officer | |||
| Principal Life Insurance Company By: Principal Global Investors, LLC, a Delaware limited liability company, its Authorized Signatory |
||||
| By | /s/ Xxxxx Xxxxxxx | |||
| Name: | Xxxxx Xxxxxxx XXX | |||
| Title: | Counsel | |||
| By | /s/ Xxxx X. Xxxxx | |||
| Name: | Xxxx X. Xxxxx | |||
| Title: | Counsel | |||
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| Vantislife Insurance Company, a Connecticut company By: Principal Global Investors, LLC, a Delaware limited liability company, its Authorized Signatory |
||||
| By | /s/ Xxxxx Xxxxxxx | |||
| Name: | Xxxxx Xxxxxxx XXX | |||
| Title: | Counsel | |||
| By | /s/ Xxxx X. Xxxxx | |||
| Name: | Xxxx X. Xxxxx | |||
| Title: | Counsel | |||
| State of Wisconsin Investment Board |
||||
| By | /s/ Xxxxxxxxxxx X. Xxxxxxxxxxxxx | |||
| Name: | Xxxxxxxxxxx X. Xxxxxxxxxxxxx | |||
| Title: | Portfolio Manager | |||
| Modern Woodmen of America |
||||
| By | /s/ W. Xxxxx Xxxxxx | |||
| Name: | W. Xxxxx Xxxxxx | |||
| Title: | President & CEO | |||
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Supplemental Representations
Each Obligor represents and warrants to each Purchaser that except as hereinafter set forth in
this Exhibit A, each of the representations and warranties set forth in Section 5 of the Note
Purchase Agreement is true and correct as of the Closing Date with respect to the Series 2007-A
Notes with the same force and effect as if each reference to “Series 2004-A Notes” (or words of
similar import) set forth therein was modified to refer to the “Series 2007-A Notes” (or words of
similar import) and each reference to “this Agreement” (or words of similar import) therein was
modified to refer to the Note Purchase Agreement as supplemented by the Second Supplement. The
Section references hereinafter set forth correspond to the similar sections of the Note Purchase
Agreement which are supplemented hereby:
Section 5.3. Disclosure. The Note Purchase Agreement, the First Supplement, the Second
Supplement, the documents, certificates or other writings delivered to each Purchaser by or on
behalf of the Obligors and the public filings made by any of the Obligors with the Securities and
Exchange Commission, in connection with the transactions contemplated by the Note Purchase
Agreement and the Second Supplement and the financial statements listed in Schedule 5.5 to the
Second Supplement (the “Disclosure Documents”), taken as a whole, do not contain any untrue
statement of a material fact or omit to state any material fact necessary to make the statements
therein not misleading in light of the circumstances under which they were made. Except as
described in one of the documents, certificates, or other writings identified therein or herein,
since July 31, 2006, there has been no change in the financial condition, operations, business or
properties of the Obligors or any Subsidiary except changes that individually or in the aggregate
could not reasonably be expected to have a Material Adverse Effect. There is no fact known to the
Obligors that could reasonably be expected to have a Material Adverse Effect that has not been set
forth herein or in the other documents, certificates and other writings delivered to each Purchaser
by or on behalf of the Obligors specifically for use in connection with the transactions
contemplated by the Second Supplement.
Section 5.4. Organization and Ownership of Shares of Subsidiaries. (a) Schedule 5.4 to the
Second Supplement contains (except as noted therein) complete and correct lists of (i) the
Obligors’ Domestic Subsidiaries, and showing, as to each Domestic Subsidiary, the correct name
thereof, the jurisdiction of its organization, and the percentage of shares of each class of its
capital stock or similar equity interests outstanding owned by the Obligors and each other Domestic
Subsidiary, (ii) the Obligors’ Affiliates, other than Domestic Subsidiaries, and (iii) the
Obligors’ directors and senior officers.
(b) All of the outstanding shares of capital stock or similar equity interests of each
Subsidiary shown in Schedule 5.4 to the Second Supplement as being owned by the Obligors and their
Subsidiaries have been validly issued, are fully paid and nonassessable (subject to the personal
liability which may be imposed on shareholders by former Section 180.0622(2)(b) of the Wisconsin
Business Corporation Law, as judicially interpreted, for debts incurred prior to June 14, 2006; for
debts incurred on or after such date, Section 180.0622(2)(b) has been repealed) and are owned by
the Company or another Subsidiary free and clear of any Lien (except as otherwise disclosed in
Schedule 5.4 to the Second Supplement).
(c) Each Domestic Subsidiary identified in Schedule 5.4 to the Second Supplement is a
corporation or other legal entity duly incorporated (or organized if not a corporation), validly
existing and in good standing (or equivalent status) under the laws of its jurisdiction of
organization, and is duly qualified as a foreign corporation or other legal entity and is in good
standing (or equivalent status) in each jurisdiction in which such qualification is required by
law, other than those jurisdictions as to which the failure to be so qualified or in good standing
(or equivalent status) could not, individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect. Each such Domestic Subsidiary has the corporate or other power and
authority to own or hold under lease the properties it purports to own or hold under lease and to
transact the business it transacts.
(d) No Subsidiary is a party to, or otherwise subject to, any legal restriction or any
agreement (other than the Note Purchase Agreement, the agreements listed on Schedule 5.4 to the
Second Supplement and customary limitations imposed by corporate, limited liability company,
limited partnership or similar statutes) restricting the ability of such Subsidiary to pay
dividends out of profits or make any other similar distributions of profits to the Company or any
of its Subsidiaries that owns outstanding shares of capital stock or similar equity interests of
such Subsidiary.
Section 5.5. Financial Statements. The Company has delivered to each Purchaser
copies of the financial statements of the Obligors and their Subsidiaries listed on Schedule 5.5 to
the Second Supplement. All of said financial statements (including in each case the related
schedules and notes) fairly present in all material respects the consolidated financial position of
the Obligors and their Subsidiaries as of the respective dates specified in such financial
statements and the consolidated results of their operations and cash flows for the respective
periods so specified and have been prepared in accordance with GAAP consistently applied throughout
the periods involved except as set forth in the notes thereto (subject, in the case of any interim
financial statements, to normal year-end adjustments and absence of footnotes).
Section 5.9. Taxes. The Obligors and the Subsidiaries have filed all tax returns
that are required to have been filed in any jurisdiction, and have paid all taxes shown to be due
and payable on such returns and all other taxes and assessments levied upon them or their
properties, assets, income or franchises, to the extent such taxes and assessments have become due
and payable and before they have become delinquent, except for any taxes and assessments (a) the
amount of which is not individually or in the aggregate Material or (b) the amount, applicability
or validity of which is currently being contested in good faith by appropriate proceedings and with
respect to which the Obligors or a Subsidiary, as the case may be, has established adequate
reserves in accordance with GAAP. None of the Obligors knows of any basis for any other tax or
assessment that could reasonably be expected to have a Material Adverse Effect. The charges,
accruals and reserves on the books of the Obligors and their Subsidiaries in respect of federal,
state or other taxes for all fiscal periods are adequate. The federal income tax liabilities of
the Obligors and their Domestic Subsidiaries have been determined by the Internal Revenue Service
and paid for all fiscal years up to and including the fiscal year ended July 31, 2002.
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Section 5.12. Compliance with ERISA. (a) Each Obligor and each ERISA Affiliate have
operated and administered each Plan in compliance with all applicable laws except for such
instances of noncompliance as have not resulted in and could not reasonably be expected to result
in a Material Adverse Effect. None of the Obligors nor any ERISA Affiliate has incurred any
liability pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of the Code
relating to employee benefit plans (as defined in section 3 of ERISA), and no event, transaction or
condition has occurred or exists that could reasonably be expected to result in the incurrence of
any such liability by any Obligor or any ERISA Affiliate, or in the imposition of any Lien on any
of the rights, properties or assets of any Obligor or any ERISA Affiliate, in either case pursuant
to Title I or IV of ERISA or to such penalty or excise tax provisions or to section 401(a)(29) or
412 of the Code, other than such liabilities or Liens as would not be individually or in the
aggregate Material.
(b) None of the Obligors or any ERISA Affiliate maintains, contributes to, or has any
liability or contingent liability with respect to any Plan which is subject to Title IV of ERISA.
(c) The Obligors and their ERISA Affiliates have not incurred any withdrawal liabilities (and
are not subject to contingent withdrawal liabilities) under section 4201 or 4204 of ERISA in
respect of Multiemployer Plans that individually or in the aggregate are Material.
(d) The expected post-retirement benefit obligation (determined as of July 31, 2006, the last
day of the Obligors’ most recently ended fiscal year, in accordance with Financial Accounting
Standards Board Statement No. 106, without regard to liabilities attributable to continuation
coverage mandated by section 4980B of the Code) of the Obligors and their Subsidiaries is not
greater than $16,000,000.
(e) The execution and delivery of the Second Supplement and the issuance and sale of the
Series 2007-A Notes thereunder will not involve any transaction that is subject to the prohibitions
of Section 406 of ERISA or in connection with which a tax could be imposed pursuant to Section
4975(c)(1)(A)-(D) of the Code. The representation by the Obligors in the first sentence of this
Section 5.12(e) is made in reliance upon and subject to the accuracy of each Purchaser’s
representation in Section 6.2 of the Note Purchase Agreement as to the sources of the funds to be
used to pay the purchase price of the Series 2007-A Notes to be purchased by such Purchaser.
Section 5.13. Private Offering by the Obligors. None of the Obligors nor anyone acting on
their behalf has offered the Series 2007-A Notes or any similar securities for sale to, or
solicited any offer to buy any of the same from, or otherwise approached or negotiated in respect
thereof with, any Person other than the Purchasers and not more than 30 other Institutional
Investors, each of which has been offered the Series 2007-A Notes at a private sale for investment.
None of the Obligors nor anyone acting on any Obligor’s behalf has taken, or will take, any action
that would subject the issuance or sale of the Notes to the registration requirements of Section 5
of the Securities Act.
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Section 5.14. Use of Proceeds; Margin Regulations. The Obligors will apply the proceeds of
the sale of the Series 2007-A Notes to repay outstanding Debt and for general corporate purposes.
No part of the proceeds from the sale of the Series 2007-A Notes pursuant to the Second Supplement
will be used, directly or indirectly, for the purpose of buying or carrying any margin stock within
the meaning of Regulation U of the Board of Governors of the Federal Reserve System (12 CFR 221),
or for the purpose of buying or carrying or trading in any securities under such circumstances as
to involve the Obligors in a violation of Regulation X of said Board (12 CFR 224) or to involve any
broker or dealer in a violation of Regulation T of said Board (12 CFR 220). Margin stock does not
constitute more than 1% of the value of the consolidated assets of the Obligors and their
Subsidiaries and the Obligors do not have any present intention that margin stock will constitute
more than 1% of the value of such assets. As used in this Section, the terms “margin stock” and
“purpose of buying or carrying” shall have the meanings assigned to them in said Regulation U.
Section 5.15. Existing Debt; Future Liens. (a) Schedule 5.15 to the Second Supplement sets
forth a complete and correct list of all outstanding Debt of the Obligors and their Subsidiaries as
of January 31, 2007, since which date there has been no Material change in the amounts, interest
rates, sinking funds, installment payments or maturities of the Debt of the Obligors or their
Subsidiaries. None of the Obligors nor any Subsidiary is in default and no waiver of default is
currently in effect, in the payment of any principal or interest on any Debt of any Obligor or such
Subsidiary and no event or condition exists with respect to any Debt of any Obligor or any
Subsidiary that would permit (or that with notice or the lapse of time, or both, would permit) one
or more Persons to cause such Debt to become due and payable before its stated maturity or before
its regularly scheduled dates of payment.
(b) Except as disclosed in Schedule 5.15 to the Second Supplement, none of the Obligors nor
any Subsidiary has agreed or consented to cause or permit in the future (upon the happening of a
contingency or otherwise) any of its property, whether now owned or hereafter acquired, to be
subject to a Lien not permitted by Section 10.3 of the Note Purchase Agreement.
Section 5.19. Notes Rank Pari Passu. The obligations of the Obligors under the Note Purchase
Agreement, the Second Supplement and the Notes rank pari passu in right of payment with all other
unsecured Senior Debt (actual or contingent) of the Obligors, including, without limitation, all
unsecured Senior Debt of the Obligors described in Schedule 5.15 to the Second Supplement.
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Form of Series 2007-A Note
Xxxxx Corporation
Xxxxx Worldwide, Inc.
Tricor Direct, Inc.
Xxxxx Worldwide, Inc.
Tricor Direct, Inc.
5.33% Series 2007-A Senior Note due March 23, 2017
| No. [_________] $[____________] |
March 23, 2007 PPN 10468* AC8 |
For Value Received, each of the undersigned, Xxxxx Corporation (herein
called the “Company”), a corporation organized and existing under the laws of the State of
Wisconsin, Xxxxx Worldwide, Inc., a corporation organized and existing under the laws of
the State of Wisconsin (“Xxxxx Worldwide”), and Tricor Direct, Inc., a corporation
organized and existing under the laws of the State of Delaware (“Tricor Direct” and, together with
the Company and Xxxxx Worldwide, the “Obligors”), jointly and severally hereby promise to pay to
[____________], or registered assigns, the principal sum of [____________] Dollars
on March 23, 2017, with interest (computed on the basis of a 360-day year of twelve 30-day months)
(a) on the unpaid balance thereof at the rate of 5.33% per annum from the date hereof, payable
semiannually, on the 23rd day of March and September in each year, commencing on the first of such
dates after the date hereof, until the principal hereof shall have become due and payable, and (b)
to the extent permitted by law on any overdue payment (including any overdue prepayment) of
principal, any overdue payment of interest and any overdue payment of any Make-Whole Amount (as
defined in the Note Purchase Agreement referred to below), payable semiannually as aforesaid (or,
at the option of the registered holder hereof, on demand), at a rate per annum from time to time
equal to 7.33%.
Payments of principal of, interest on and any Make-Whole Amount with respect to this Note are
to be made in lawful money of the United States of America at the principal office of Bank of
America, N.A. in New York, New York or at such other place as the Company shall have designated by
written notice to the holder of this Note as provided in the Note Purchase Agreement referred to
below.
This Note is one of a series of Senior Notes (the “Notes”) issued pursuant to a Supplement to
the Note Purchase Agreement dated as of June 28, 2004 (as from time to time amended, supplemented
or modified, the “Note Purchase Agreement”), between the Obligors, the Purchasers named therein and
Additional Purchasers of Notes from time to time issued pursuant to any Supplement to the Note
Purchase Agreement. This Note and the holder hereof are entitled equally and ratably with the
holders of all other Notes of all series from time to time outstanding under the Note Purchase
Agreement to all the benefits provided for thereby or referred to therein. Each holder of this
Note will be deemed, by its acceptance hereof, to have
made the representations set forth in Section 6 of the Note Purchase Agreement, provided that
such holder may (in reliance upon information provided by the Obligors, which shall not be
unreasonably withheld) make a representation to the effect that the purchase by such holder of any
Note will not constitute a non-exempt prohibited transaction under Section 406(a) of ERISA.
This Note is registered with the Obligors and, as provided in the Note Purchase Agreement,
upon surrender of this Note for registration of transfer, duly endorsed, or accompanied by a
written instrument of transfer duly executed, by the registered holder hereof or such holder’s
attorney duly authorized in writing, a new Note of the same series for a like principal amount will
be issued to, and registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Obligors may treat the person in whose name this Note is registered
as the owner hereof for the purpose of receiving payment and for all other purposes, and the
Obligors will not be affected by any notice to the contrary.
The Obligors will make required prepayments of principal on the dates and in the amounts
specified in the Note Purchase Agreement (including as specified in the Second Supplement). This
Note is also subject to optional prepayment, in whole or from time to time in part, at the times
and on the terms specified in the Note Purchase Agreement, but not otherwise.
Pursuant to the Subsidiary Guaranty Agreement dated as of June 28, 2004 (as amended or
modified from time to time, the “Subsidiary Guaranty”), certain Subsidiaries of the Obligors have
absolutely and unconditionally guaranteed payment in full of the principal of, Make-Whole Amount,
if any, and interest on this Note and the performance by the Obligors of their obligations
contained in the Note Purchase Agreement all as more fully set forth in said Subsidiary Guaranty.
If an Event of Default, as defined in the Note Purchase Agreement, occurs and is continuing,
the principal of this Note may be declared or otherwise become due and payable in the manner, at
the price (including any applicable Make-Whole Amount) and with the effect provided in the Note
Purchase Agreement.
Notwithstanding any other provision of this Note or the Note Purchase Agreement, in no event
shall the interest payable hereon, whether before or after maturity, exceed the maximum interest
that may be charged on this Note under applicable law, and this Note is expressly made subject to
the provisions of the Note Purchase Agreement which more fully set out the limitations on how
interest may be accrued, charged or paid on this Note.
This Note shall be construed and enforced in accordance with, and the rights of the parties
shall be governed by, the law of the State of New York excluding choice-of-law principles of the
law of such State that would require the application of the laws of a jurisdiction other than such
State.
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| Xxxxx Corporation |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| Xxxxx Worldwide, Inc. |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| Tricor Direct, Inc. |
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| By: | ||||
| Name: | ||||
| Title: | ||||
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