CONFORMED COPY
EXHIBIT (10)(xxii)(a)
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NOTE PURCHASE AGREEMENT
Dated as of February 7, 2002
by and between
THE XXXXXXX WORKS
and
BNP PARIBAS
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This NOTE PURCHASE AGREEMENT (this "AGREEMENT") is dated as of
February 7, 2002 and is by and between THE XXXXXXX WORKS, a Connecticut
corporation and BNP PARIBAS, a societe anonyme organized and existing under the
laws of The Republic of France (the "INVESTOR").
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, The Xxxxxxx Works wishes to issue to Investor and
Investor wishes to purchase from The Xxxxxxx Works on the date hereof a note of
The Xxxxxxx Works having the terms and being in the form set forth in Exhibit A
hereto and as provided herein (the "INITIAL NOTE");
WHEREAS, The Xxxxxxx Works and Investor each wish to grant to
the other certain rights with respect to the issuance and purchase of additional
notes of The Xxxxxxx Works (the "ADDITIONAL NOTES" and, collectively with the
Initial Note, the "NOTES") and with respect to the repurchase of the Notes by
The Xxxxxxx Works;
WHEREAS, The Xxxxxxx Works owns all of the Common Stock, par
value $0.01 per share, of Xxxxxxx Logistics, Inc., a Delaware corporation (the
"COMPANY"), and Investor has agreed to purchase 11,445 shares of Auction Market
Preferred Stock, par value $0.01 per share, of the Company (the "AMPS SHARES")
on the Closing Date;
NOW, THEREFORE, the parties, intending to be bound, hereby
agree as follows:
ARTICLE I
ISSUANCE OF INITIAL NOTE
Section 1.1 Subject to satisfaction of the conditions set
forth in Article IV below, The Xxxxxxx Works agrees to issue an Initial Note to
Investor on February 7, 2002 (the "Closing Date") in the principal amount of
$500,000, bearing interest at the rates and having the other terms, and in the
form set forth in Exhibit A hereto, upon receipt by The Xxxxxxx Works from
Investor of the purchase price of the Initial Note equal to the principal amount
thereof in immediately available funds.
Section 1.2 Subject to satisfaction of the conditions set
forth in Article IV below, Investor agrees to purchase the Initial Note from The
Xxxxxxx Works on the Closing Date by payment of the principal amount of the
Initial Note in immediately available funds to the account of The Xxxxxxx Works
set forth on the signature page hereof.
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ARTICLE II
ISSUANCE OF ADDITIONAL NOTES
In the event that, at any time when Investor is the holder of
the Initial Note, Investor is not the holder of any shares of the capital stock
of the Company, (i) Investor shall have the option, upon five (5) days prior
written notice to The Xxxxxxx Works, to purchase Additional Notes from The
Xxxxxxx Works, and upon receipt of such notice The Xxxxxxx Works agrees to issue
Additional Notes to Investor on the date specified in such notice, and (ii) The
Xxxxxxx Works shall have the option, upon five (5) days prior written notice to
Investor, to issue Additional Notes to Investor, and upon receipt of such notice
Investor agrees to purchase Additional Notes from The Xxxxxxx Works on the date
specified in such notice, in either case in the aggregate principal amount of
$75,000,000 at a purchase price equal to such principal amount, such Additional
Notes otherwise to have the terms and to be in the form set forth in Exhibit A
hereto. Such purchase price shall be paid in immediately available funds to the
account of The Xxxxxxx Works set forth on the signature page hereof. The options
provided for in this Article II may be exercised only once for the full
aggregate principal amount of the Additional Notes by either Investor or The
Xxxxxxx Works but not by both parties separately.
ARTICLE III
REPURCHASE OF NOTES
Section 3.1 In the event that, at any time when Investor is
the holder of any Note, (i) the rating published by Standard & Poor's or Xxxxx'x
in respect of The Xxxxxxx Works' senior unsecured long-term indebtedness falls
below "BBB" and "Baa" respectively, or The Xxxxxxx Works is no longer rated by
Standard & Poor's and Xxxxx'x; or (ii) any Additional Notes have been issued to
Investor pursuant to Article II hereof, Investor shall have the option, upon
five (5) days prior written notice to The Xxxxxxx Works, to require The Xxxxxxx
Works to purchase all (but not less than all) of the Notes held by Investor, and
upon receipt of such notice The Xxxxxxx Works agrees to purchase such Notes from
Investor on the date specified in such notice, at the Purchase Price (as defined
below). The Purchase Price shall be paid in immediately available funds to the
account of Investor set forth on the signature page hereof.
Section 3.2 In the event that, at any time when Investor is
the holder of any Note, any Additional Notes have been issued to Investor
pursuant to Article II hereof, The Xxxxxxx Works shall have the option, upon
five (5) days prior written notice to Investor, to require Investor to sell to
The Xxxxxxx Works all (but not less than all) of the Notes held by Investor, and
upon receipt of such notice Investor agrees to sell such Notes to The Xxxxxxx
Works on the date specified in such notice, at the Purchase Price. The Purchase
Price shall be paid in immediately available funds to the account of Investor
set forth on the signature page hereof.
Section 3.3 For purposes of Sections 3.1 and 3.2 above, the
"PURCHASE PRICE" shall be determined by The Xxxxxxx Works as follows: upon
exercise by Investor of its option pursuant to Section 3.1 or by The Xxxxxxx
Works of its option pursuant to Section 3.2, The Xxxxxxx Works shall solicit
from
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five market participants purchase price quotations for the purchase of the
Notes held by Investor, which purchase price quotations shall be based on the
discounted value of the remaining cash flows on such Notes at Swap Curve plus
0.45% and shall include any accrued and unpaid interest on such Notes to the
specified date of purchase. For the purposes of this Section 3.3, the "SWAP
CURVE" shall mean the zero coupon curve for the remaining term of such Notes,
obtained from mid market swap quotations. For the avoidance of doubt, Swap Curve
refers to the same rate convention as that of the Notes. Upon receipt of such
quotations, The Xxxxxxx Works shall exclude the highest and lowest quotations
and shall determine the "Purchase Price" as the arithmetic mean of the remaining
three quotations.
ARTICLE IV
CONDITIONS PRECEDENT TO ISSUANCE OF INITIAL NOTE
Section 4.1 The obligation of The Xxxxxxx Works to issue the
Initial Note to Investor on the Closing Date shall be subject to the conditions
that (i) all representations and warranties of Investor in the Transaction
Documents (as such term and the other terms used but not defined herein are
defined in the Auction Market Preferred Stock Investment Agreement, dated as of
the date hereof, between the Company and The Xxxxxxx Works for the benefit of
Investor (the "INVESTMENT AGREEMENT")) to which it is a party shall be true and
correct as of the Closing Date in all material respects, (ii) Investor shall
have performed all of its obligations theretofore to be performed under the
Transaction Documents in all material respects and (iii) no Acceleration Event
shall have occurred and be continuing as of the Closing Date or shall occur as a
result of the issuance of AMPS Shares on the Closing Date.
Section 4.2 The obligation of Investor to purchase and pay the
purchase price for the Initial Note on the Closing Date shall be subject to the
conditions that (i) all representations and warranties of The Xxxxxxx Works and
the Company in the Transaction Documents shall be true and correct as of the
Closing Date in all material respects, (ii) The Xxxxxxx Works shall have
performed all of its obligations theretofore to be performed under the
Transaction Documents in all material respects and (iii) no Acceleration Event
shall have occurred and be continuing as of the Closing Date or shall occur as a
result of the issuance of AMPS Shares on the Closing Date.
Section 4.3 The obligations of each party hereto to issue and
purchase, respectively, the Initial Note shall be subject to the following
additional conditions:
(i) the execution and delivery of the Transaction Documents by
each of the parties thereto;
(ii) each of the conditions set forth in Section 7.1(c) of the
Auction Market Preferred Stock Procurement Agreement, dated as of February 7,
2002, between The Xxxxxxx Works and Investor (the "PROCUREMENT AGREEMENT")
having been satisfied;
(iii) the AMPS Shares having been issued and delivered to
Investor as contemplated by the Transaction Documents; and
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(iv) all necessary corporate and governmental authorizations
for Investor having been obtained and remaining in full force and effect on the
Closing Date.
ARTICLE V
ACKNOWLEDGMENTS OF THE XXXXXXX WORKS AND INVESTOR
Section 5.1 (a) The Xxxxxxx Works acknowledges that Investor
has relied on the representations and warranties of The Xxxxxxx Works and the
Company in the Transaction Documents in connection with Investor's purchase of
the Initial Note.
(b) The Investor acknowledges that The Xxxxxxx Works and the Company
have relied on the representations and warranties of the Investor in the
Transaction Documents in connection with the issuance by The Xxxxxxx Works of
the Initial Note.
Section 5.2 (a) Investor acknowledges that the Notes have not
been and will not be registered under the Securities Act of 1933, and the rules
and regulations promulgated thereunder, as amended (the "SECURITIES ACT"), or
any state securities or blue sky laws, and (b) Investor agrees that it may not
offer, sell, pledge, hypothecate or transfer at any time, directly or
indirectly, any Note except (i) together with any AMPS Shares transferred by
Investor in accordance with Section 5.1 of the Procurement Agreement, (ii) in
accordance with all conditions of any such transfer under such Section 5.1 and
(iii) pursuant to a transaction not required to be registered under the
Securities Act.
(b) Investor is an institutional Accredited Investor within the meaning
of subparagraph (a)(1), (2), (3) or (7) of Rule 501 under the Securities Act.
(c) Investor acknowledges that it has access to such financial and
other information concerning The Xxxxxxx Works and the Notes as deemed necessary
in connection with its decision to purchase the Initial Note, including an
opportunity to ask questions of and request information from The Xxxxxxx Works.
(d) Investor is acquiring the Initial Note for its own account for
investment, not with a view to, or for sale in connection with, any distribution
thereof, nor with any present intention of distributing or selling the same; and
Investor does not presently have any contract, undertaking, agreement or
arrangement with any person to sell, transfer or grant participations to such
person or to any third person, with respect to any of the Notes. Investor
acknowledges that each Note will contain a legend substantially to the following
effect:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED EXCEPT IN
ACCORDANCE WITH AN AVAILABLE EXEMPTION FROM THE
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REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND OTHERWISE IN ACCORDANCE
WITH THE NOTE PURCHASE AGREEMENT.
ARTICLE VI
MISCELLANEOUS PROVISIONS
Section 6.1 Forms. Investor shall complete and deliver to The
Xxxxxxx Works a United States Internal Revenue Service Form W-8BEN (or any
similar or successor form thereto) completed in the same manner as the sample
Form attached hereto as Annex A, claiming the benefits of the Tax Treaty (as
defined in the Procurement Agreement) (i) prior to the Closing Date (as such
term is used in the Procurement Agreement), (ii) before the form previously
provided expires, (iii) promptly upon learning that the form previously provided
has become obsolete or incorrect and (iv) promptly upon reasonable request by
the Company. If Investor is required to file any U.S. tax returns with respect
to Investor's holding of the AMPS Shares, Investor shall treat such holding as
defined in 26 C.F.R. Section 1.1275-1(d), unless Investor receives an opinion
from nationally recognized U.S. tax counsel that there is not a reasonable basis
for such treatment.
Section 6.2 Payment of Additional Amounts under the
Transaction Documents. The Xxxxxxx Works represents that neither it nor the
Company is required under current law to withhold any U.S. tax with respect to
any payment due to Investor under any of the Transaction Documents. This
representation is made by The Xxxxxxx Works insofar as Investor is a tax
resident of France and based on the accuracy of Investor's representations,
warranties, agreements and covenants in the Transaction Documents. If, in the
course of an audit, the United States Internal Revenue Service (the "IRS")
asserts that any U.S. tax should have been withheld with respect to any such
payment, prior to contesting any such assertion, The Xxxxxxx Works or the
Company shall either (i) pay the amount of tax asserted to be due by the IRS or
(ii) agree to indemnify Investor against any claim by the IRS against Investor
with respect to such tax. If The Xxxxxxx Works makes any payment pursuant to the
immediately preceding sentence, and, as a result of the making of such payment,
Investor, acting reasonably, determines that it is entitled to receive a tax
credit or other similar benefit under the tax laws of France, Investor shall,
promptly after the receipt of that benefit, pay the amount thereof to the
Xxxxxxx Works.
Section 6.3 Assignment, etc. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns. Neither this
Agreement nor any of the rights granted herein, nor any of the other interests
and obligations created hereunder, shall be assigned or delegated by either of
the parties hereto without the prior express written consent of the other party,
except under the circumstance set forth in Section 5.1 of the Procurement
Agreement. Investor agrees that it shall not transfer the Initial Note to any
third party without at the same time transferring all of the AMPS Shares held by
it to such transferee.
Section 6.4 Governing Law. This Agreement is governed by, and
shall be construed in accordance with, the laws of the State of New York without
regard to principles of conflicts of laws.
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Section 6.5 Waiver of Jury Trial. EACH PARTY HERETO
IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY LEGAL
ACTION OR PROCEEDING, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, BETWEEN
THE PARTIES HERETO ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED BY
THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR
DELIVERED IN CONNECTION HEREWITH OR THEREWITH AND FOR ANY COUNTERCLAIM THEREIN.
EITHER PARTY HERETO MAY FILE ANY ORIGINAL COUNTERPART OR COPY OF THIS AGREEMENT
WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE
WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
Section 6.6 Counterparts. This Agreement may be executed in
counterparts, each of which shall constitute one and the same instrument.
Section 6.7 Notices. Any notice pursuant to this Agreement
shall be in writing signed by or on behalf of the party giving it and may be
served by sending it by confirmed facsimile, personal delivery or overnight
courier to the address of the other parties set forth below (or to such other
address as the affected party shall have specified by not less than fifteen (15)
days prior notice given in accordance with this Section). Notice shall be
received for purposes thereof:
(i) in the case of personal delivery or overnight
courier, on the day delivery at the address of the relevant
party is confirmed by a signed receipt of such notice, or if
such day is not a Business Day, on the first Business Day
thereafter; and
(ii) in the case of a facsimile transmission, on the day
a confirmation of receipt is received or, if such day is not a
Business Day, on the first Business Day thereafter.
To The Xxxxxxx Works:
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Address: The Xxxxxxx Works
0000 Xxxxxxx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxxx 00000
XXX
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx
Corporate Counsel
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To Investor:
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Address: BNP Paribas
00 Xxxxx xx Xxxxxx Xx Xxxxxx
00000 Xxxxx
Fax: (33) (0) 0.00.00.00.00
Attention: Xxxxxxxxxx Xxxxxxxxxxxx
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed on its behalf by its duly authorized officer as of the
date first above written.
THE XXXXXXX WORKS
By: /s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
Vice President & Treasurer
BNP PARIBAS
By:/s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx
Exhibit A
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Form of Note
Exhibit A
THIS NOTE AND ANY BENEFICIAL INTEREST IN THIS NOTE HAVE NOT BEEN AND WILL NOT BE
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
AND MAY NOT BE OFFERED, SOLD, PLEDGED, HYPOTHECATED OR TRANSFERRED AT ANY TIME,
DIRECTLY OR INDIRECTLY, EXCEPT PURSUANT TO A TRANSACTION NOT REQUIRED TO BE
REGISTERED UNDER THE SECURITIES ACT AND OTHERWISE IN ACCORDANCE WITH THE NOTE
PURCHASE AGREEMENT.
NUMBER 1 Principal Amount: $[ ]
Dated: [ ] Due: February 7, 2008
THE XXXXXXX WORKS, a corporation organized and existing under the laws of
Connecticut (the "ISSUER"), with offices at 0000 Xxxxxxx Xxxxx, Xxx Xxxxxxx,
Xxxxxxxxxxx 00000, for value received, hereby promises to pay to BNP PARIBAS, a
societe anonyme organized and existing under the laws of The Republic of France,
the principal sum of U.S. [ ] dollars (U.S.$ [ ]) on February 7, 2008 (the
"MATURITY DATE").
The Issuer shall pay interest on this Note semi-annually on each August 7, and
each February 7 and on the Maturity Date or, if any such date is not a Business
Day (as defined below), on the next following Business Day unless such day falls
in the following calendar month, in which case payment shall be made on the
first preceding day that is a Business Day (each, an "INTEREST PAYMENT DATE"),
commencing [ ], until the principal of this Note is paid in full, on the
principal amount of this Note outstanding from time to time. Interest on this
Note shall accrue from the day following the preceding Interest Payment Date
(or, in the case of the first Interest Payment Date, from and including the date
hereof) to and including the following Interest Payment Date at a rate per annum
equal to (i) in respect of each Interest Payment Date to and including February
7, 2007, 5.72%, calculated on the basis of a 360-day year consisting of 12
months of 30 days each, and (ii) in respect of each Interest Payment Date after
February 7, 2007, LIBOR (as defined below), calculated on the basis of a the
actual number of days elapsed and a 360-day year, plus 0.45%. For purposes of
this paragraph, the following terms shall have the meanings set forth below:
"BUSINESS DAY" means any day other than a Saturday, a Sunday or any
other day on which commercial banks located in New York City are authorized or
required by law to remain closed.
"LIBOR" for the determination of interest payable on any Interest
Payment Date means the rate for deposits in United States dollars for six months
(the "specified period") which appears on Telerate Page 3750 as of 11:00 a.m.,
London time, on the second London Business Day preceding the related Reset Date.
If such rate does not appear on the Telerate Page 3750, LIBOR will be determined
on the basis of the rates at which deposits in United States dollars are offered
by the Reference Banks at approximately 11:00 a.m., London time, on the second
London Business Day preceding that Reset Date to prime banks in the London
interbank market for the specified period commencing on that Reset Date and in a
representative amount. The Issuer will request the principal London office of
each of the Reference Banks to provide a quotation of its rate. If at least two
such quotations are provided, LIBOR will be the arithmetic mean of the
quotations. If fewer than two quotations are provided, LIBOR will be the
arithmetic mean of the rates quoted by major banks in London selected by the
Issuer, at approximately 11:00 a.m., London time, on the second London Business
Day preceding that Reset Date for loans in United States dollars to leading
European banks for the specified period commencing on that Reset Date and in a
representative amount.
"LONDON BUSINESS DAY" means a day on which banks are open in London for
the transaction of normal banking business in the interbank market.
"REFERENCE BANKS" means five leading banks designated by the Issuer and
acting through their respective principal London offices, provided that if any
such bank or banks do not provide the quotations required for this Note, such
other bank or banks (as the case may be) substituted for it or them as may
selected by the Issuer.
"RESET DATE" in respect of any Interest Payment Date means the next
preceding Interest Payment Date.
The Issuer shall pay interest on any overdue installments of interest
on this Note at the applicable rate set forth above to the extent lawful.
The principal amount of this Note shall be payable on the Maturity Date
only upon presentation and surrender of this Note at the office of the Issuer at
0000 Xxxxxxx Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxxx 00000. Payments of principal of and
interest on this Note shall be made to the holder of this Note indicated above
in immediately available funds to the account of such holder designated in
writing to the Issuer not later that 15 days prior to the related Interest
Payment Date or the Maturity Date, as applicable.
Until the entire principal of and accrued interest on this Note have
been paid in full, the Issuer covenants with the holder of this Note as follows:
(1) The Issuer shall maintain at the office located at the address
of the Issuer specified above where notices, presentations and
demands in respect of this Note may be given to and made upon
it; provided, however, that the Issuer may, upon 15 Business
Days' prior written notice to the holder hereof, move such
office to any other location within the continental boundaries
of Europe or North America.
(2) The Issuer shall take and fulfill, or cause to be taken and
fulfilled, all actions and conditions necessary to preserve
and keep in full force and effect its existence, rights and
privileges as a corporation, and shall not liquidate or
dissolve and shall take and fulfill, or cause to be taken
and fulfilled, all actions and conditions necessary to
qualify, and to preserve and keep in full force and effect
its qualification, to do business as a foreign corporation
in the jurisdictions in which the conduct of its business or
the ownership or leasing of its properties requires such
qualification.
(3) The Issuer shall give prompt written notice to the holder
hereof of any Event of Default or any event which with notice
or lapse of time or both would constitute an Event of Default.
(4) The Issuer shall pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (a) all
material taxes, assessments and government charges levied or
imposed upon the Issuer or upon the income, profits or
property of the Issuer, and (b) all lawful material claims for
labor, materials and supplies which, if unpaid, might by law
become a lien upon the property of the Issuer; provided,
however, that the Issuer shall not be required to pay or
discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or
validity is being contested in good faith by appropriate
proceedings.
(5) The Issuer shall not violate any laws, ordinances or
governmental rules or regulations to which it or any of its
properties is or may become subject, the violation of which,
in the aggregate, reasonably could be expected to have a
material adverse effect on the ability of the Issuer to pay
the principal of and the interest of this Note.
If any of the following events (each, an "EVENT OF DEFAULT") occurs and
is continuing, the holder of this Note may give written notice to the Issuer at
the address of the Issuer set forth above that this Note is immediately
repayable, whereupon the principal amount of this Note together with accrued
interest thereon to the date of payment shall become immediately due and
payable, unless such Event of Default shall have been remedied prior to the
receipt of such notice by the Issuer:
(a) default is made for more than ten days (in the case of
interest) or five days (in the case of principal) in the
payment on the due date of interest on or principal of this
Note;
(b) the Issuer or Xxxxxxx Logistics, Inc. initiates or consents
to proceedings relating to itself under any applicable
bankruptcy, reorganization or insolvency law or makes a
conveyance or assignment for the benefit of, or enters into
any composition with, its creditors in general; or
(c) the proceedings are initiated against the Issuer or Xxxxxxx
Logistics, Inc. under any applicable bankruptcy,
reorganization or insolvency law and such proceedings are
not discharged or stayed within a period of 60 days.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts.
This Note shall be construed in accordance with the laws of the State
of New York without reference to principles of conflicts of law, and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws.
IN WITNESS WHEREOF, the Issuer has caused this Note to be executed by
its duly authorized officer as of the date first set forth above.
THE XXXXXXX WORKS
By: ___________________________
Name:
Title:
