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EXHIBIT 10.16
ProQuest Company
$150,000,000 5.45% Senior Notes due October 1, 2012
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Note Purchase Agreement
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Dated as of October 1, 2002
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TABLE OF CONTENTS
Section Heading Page
Section 1. Authorization of Notes................................................................ 1
Section 2. Sale and Purchase of Notes............................................................ 1
Section 2.1. Notes................................................................................. 1
Section 2.2. Subsidiary Guaranty................................................................... 2
Section 3. Closing............................................................................... 2
Section 4. Conditions to Closing................................................................. 2
Section 4.1. Representations and Warranties........................................................ 2
Section 4.2. Performance; No Default............................................................... 2
Section 4.3. Compliance Certificates............................................................... 3
Section 4.4. Opinions of Counsel................................................................... 3
Section 4.5. Purchase Permitted by Applicable Law, Etc............................................. 3
Section 4.6. Related Transactions.................................................................. 4
Section 4.7. Payment of Special Counsel Fees....................................................... 4
Section 4.8. Private Placement Number.............................................................. 4
Section 4.9. Changes in Corporate Structure........................................................ 4
Section 4.10. Proceedings and Documents............................................................. 4
Section 4.11. Subsidiary Guaranty................................................................... 4
Section 5. Representations and Warranties of the Company......................................... 4
Section 5.1. Organization; Power and Authority..................................................... 4
Section 5.2. Authorization, Etc.................................................................... 5
Section 5.3. Disclosure............................................................................ 5
Section 5.4. Organization and Ownership of Shares of Subsidiaries; Affiliates...................... 5
Section 5.5. Financial Statements.................................................................. 6
Section 5.6. Compliance with Laws, Other Instruments, Etc.......................................... 6
Section 5.7. Governmental Authorizations, Etc...................................................... 6
Section 5.8. Litigation; Observance of Statutes and Orders......................................... 6
Section 5.9. Taxes................................................................................. 7
Section 5.10. Title to Property; Leases............................................................. 7
Section 5.11. Licenses, Permits, Etc................................................................ 7
Section 5.12. Compliance with ERISA................................................................. 8
Section 5.13. Private Offering by the Company....................................................... 9
Section 5.14. Use of Proceeds; Margin Regulations................................................... 9
Section 5.15. Existing Debt; Future Liens........................................................... 9
Section 5.16. Foreign Assets Control Regulations, Etc............................................... 9
Section 5.17. Status under Certain Statutes.........................................................10
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Section 5.18. Environmental Matters.................................................................10
Section 6. Representations of the Purchaser......................................................10
Section 6.1. Purchase for Investment...............................................................10
Section 6.2. Source of Funds.......................................................................11
Section 7. Information as to Company.............................................................12
Section 7.1. Financial and Business Information....................................................12
Section 7.2. Officer's Certificate.................................................................15
Section 7.3. Inspection............................................................................15
Section 8. Payment of the Notes..................................................................16
Section 8.1. Required Prepayments..................................................................16
Section 8.2. Optional Prepayments with Make-Whole Amount...........................................16
Section 8.3. Allocation of Partial Prepayments.....................................................17
Section 8.4. Maturity; Surrender, Etc..............................................................17
Section 8.5. Purchase of Notes.....................................................................17
Section 8.6. Make-Whole Amount for Notes...........................................................17
Section 9. Affirmative Covenants.................................................................18
Section 9.1. Compliance with Law...................................................................18
Section 9.2. Insurance.............................................................................19
Section 9.3. Maintenance of Properties.............................................................19
Section 9.4. Payment of Taxes and Claims...........................................................19
Section 9.5. Corporate Existence, Etc..............................................................19
Section 9.6. Designation of Subsidiaries...........................................................20
Section 9.7. Subsidiary Guaranty...................................................................20
Section 9.8. Notes to Rank Pari Passu..............................................................20
Section 10. Negative Covenants....................................................................21
Section 10.1. Consolidated Adjusted Net Worth.......................................................21
Section 10.2. Limitation on Consolidated Debt.......................................................21
Section 10.3. Limitation on Priority Debt...........................................................21
Section 10.4. Fixed Charge Coverage Ratio...........................................................21
Section 10.5. Limitation on Liens...................................................................21
Section 10.6. Sales of Asset........................................................................23
Section 10.7. Merger, Consolidation and Sale of Stock...............................................24
Section 10.8. Nature of Business....................................................................25
Section 10.9. Transactions with Affiliates..........................................................25
Section 11. Events of Default.....................................................................26
Section 12. Remedies on Default, Etc..............................................................28
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Section 12.1. Acceleration..........................................................................28
Section 12.2. Other Remedies........................................................................29
Section 12.3. Rescission............................................................................29
Section 12.4. No Waivers or Election of Remedies, Expenses, Etc.....................................29
Section 13. Registration; Exchange; Substitution of Notes.........................................29
Section 13.1. Registration of Notes.................................................................29
Section 13.2. Transfer and Exchange of Notes........................................................30
Section 13.3. Replacement of Notes..................................................................30
Section 14. Payments On Notes.....................................................................31
Section 14.1. Place of Payment......................................................................31
Section 14.2. Home Office Payment...................................................................31
Section 15. Expenses, Etc.........................................................................31
Section 15.1. Transaction Expenses..................................................................31
Section 15.2. Survival..............................................................................32
Section 16. Survival of Representations and Warranties; Entire Agreement..........................32
Section 17. Amendment and Waiver..................................................................32
Section 17.1. Requirements..........................................................................32
Section 17.2. Solicitation of Holders of Notes......................................................32
Section 17.3. Binding Effect, Etc...................................................................33
Section 17.4. Notes Held by Company, Etc............................................................33
Section 18. Notices...............................................................................33
Section 19. Reproduction of Documents.............................................................34
Section 20. Confidential Information..............................................................34
Section 21. Substitution of Purchaser.............................................................35
Section 22. Miscellaneous.........................................................................35
Section 22.1. Successors and Assigns................................................................35
Section 22.2. Payments Due on Non-Business Days.....................................................35
Section 22.3. Severability..........................................................................36
Section 22.4. Construction..........................................................................36
Section 22.5. Counterparts..........................................................................36
Section 22.6. Governing Law.........................................................................36
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Schedule A -- Information Relating to Purchasers
Schedule B -- Defined Terms
Schedule 4.9 -- Changes in Corporate Structure
Schedule 5.4 -- Subsidiaries of the Company, Ownership of Subsidiary Stock, Affiliates
Schedule 5.5 -- Financial Statements
Schedule 5.8 -- Litigation; Observance of Statutes and Orders
Schedule 5.11 -- Licenses, Permits, Etc.
Schedule 5.12 -- Compliance with ERISA
Schedule 5.15 -- Existing Debt
Schedule 10.5 -- Existing Liens
Exhibit 1 -- Form of 5.45% Senior Note due October 1, 2012
Exhibit 2 -- Form of Subsidiary Guaranty
Exhibit 4.4(a) -- Form of Opinion of General Counsel to the Company
Exhibit 4.4(b) -- Form of Opinion of Special Counsel to the Company
Exhibit 4.4(c) -- Form of Opinion of Special Counsel to the Purchasers
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PROQUEST COMPANY
000 XXXXX XXXX XXXX
XXX XXXXX, XX 00000-0000
NOTE PURCHASE AGREEMENT
Re: 5.45% Senior Notes due October 1, 2012
Dated as of
October 1, 2002
To the Purchasers listed in
the attached Schedule A:
Ladies and Gentlemen:
ProQuest Company, a Delaware corporation (the "Company"), agrees with the
Purchasers listed in the attached Schedule A (the "Purchasers") to this Note
Purchase Agreement (this "Agreement") as follows:
Section 1. Authorization of Notes
The Company will authorize the issue and sale of (i) $150,000,000
aggregate principal amount of its 5.45% Senior Notes, due October 1, 2012 (the
"Notes"). The term "Notes" shall also include any such notes issued in
substitution therefor pursuant to Section 13 of this Agreement. The Notes shall
be substantially in the form set out in Exhibit 1, with such changes therefrom,
if any, as may be approved by the Purchasers and the Company. Certain
capitalized terms used in this Agreement are defined in Schedule B; references
to a "Schedule" or an "Exhibit" are, unless otherwise specified, to a Schedule
or an Exhibit attached to this Agreement.
Section 2. Sale and Purchase of Notes
Section 2.1. Notes. Subject to the terms and conditions of this
Agreement, the Company will issue and sell to each Purchaser and each Purchaser
will purchase from the Company, at the Closing provided for in Section 3, Notes
in the principal amount specified opposite such Purchaser's name in Schedule A
at the purchase price of 100% of the principal amount thereof. The obligations
of each Purchaser hereunder are several and not joint obligations and each
Purchaser shall have no obligation and no liability to any Person for the
performance or nonperformance by any other Purchaser hereunder.
Section 2.2. Subsidiary Guaranty. The payment by the Company of all
amounts due with respect to the Notes and the performance by the Company of its
obligations under this Agreement will be absolutely and unconditionally
guaranteed by the Subsidiary Guarantors pursuant to the Subsidiary Guaranty (the
"Subsidiary Guaranty"), which shall be in substantially the form attached hereto
as Exhibit 2.
Section 3. Closing
The sale and purchase of the Notes to be purchased by each Purchaser
shall occur at the offices of Xxxxxxx and Xxxxxx, 000 Xxxx Xxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000 at 10:00 a.m. Chicago time, at a closing (the "Closing")
on October 3, 2002 or on such other Business Day thereafter on or prior to
October 7, 2002 as may be agreed upon by the Company and the Purchasers. At the
Closing the Company will deliver to each Purchaser the Notes to be purchased by
such Purchaser in the form of a single Note (or such greater number of Notes in
denominations of at least $100,000 as such Purchaser may request) dated the date
of the Closing and registered in such Purchaser's name (or in the name of such
Purchaser's nominee), against delivery by such Purchaser to the Company or its
order of immediately available funds in the amount of the purchase price
therefor by wire transfer of immediately available funds for the account of the
Company to Account Number 187008-8, Account Name ProQuest Company General
Account, at Xxxxxx Trust & Savings Bank, Chicago, Illinois, ABA Number
000000000. If at the Closing the Company shall fail to tender such Notes to any
Purchaser as provided above in this Section 3, or any of the conditions
specified in Section 4 shall not have been fulfilled to any Purchaser's
satisfaction, such Purchaser shall, at such Purchaser's election, be relieved of
all further obligations under this Agreement, without thereby waiving any rights
such Purchaser may have by reason of such failure or such nonfulfillment.
Section 4. Conditions to Closing
The obligation of each Purchaser to purchase and pay for the Notes to be
sold to such Purchaser at the Closing is subject to the fulfillment to such
Purchaser's satisfaction, prior to or at the Closing, of the following
conditions:
Section 4.1. Representations and Warranties of the Company. The
representations and warranties of the Company in this Agreement shall be correct
when made and at the time of Closing.
Section 4.2. Performance; No Default. The Company shall have performed
and complied with all agreements and conditions contained in this Agreement
required to be performed or complied with by the Company prior to or at the
Closing, and after giving effect to the issue and sale of the Notes (and the
application of the proceeds thereof as contemplated by Section 5.14), no Default
or Event of Default shall have occurred and be continuing. Neither the Company
nor any Subsidiary shall have entered into any transaction since the date of the
Memorandum that would have been prohibited by Section 10 hereof had such
Sections applied since such date.
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Section 4.3. Compliance Certificates.
(a) Officer's Certificate of the Company. The Company shall have
delivered to such Purchaser an Officer's Certificate, dated the date of
the Closing, certifying that the conditions specified in Sections 4.1,
4.2 and 4.9 have been fulfilled.
(b) Secretary's Certificate of the Company. The Company shall
have delivered to such Purchaser a certificate certifying as to the
resolutions attached thereto and other corporate proceedings relating to
the authorization, execution and delivery of the Notes and this
Agreement.
(c) Officer's Certificate of the Subsidiary Guarantors. Each
Subsidiary Guarantor shall have delivered to such Purchaser an Officer's
Certificate, dated the date of the Closing, certifying that the
conditions specified in Section 4.2 have been fulfilled.
(d) Secretary's Certificate of the Subsidiary Guarantors. Each
Subsidiary Guarantor shall have delivered to such Purchaser a certificate
certifying as to the resolutions attached thereto and other corporate
proceedings relating to the authorization, execution and delivery of the
Subsidiary Guaranty.
Section 4.4. Opinions of Counsel. Such Purchaser shall have received
opinions in form and substance satisfactory to such Purchaser, dated the date of
the Closing (a) from Xxxx Xxxxxxxx, General Counsel of the Company, covering the
matters set forth in Exhibit 4.4(a) and covering such other matters incident to
the transactions contemplated hereby as such Purchaser or such Purchaser's
counsel may reasonably request (and the Company hereby instructs its counsel to
deliver such opinion to such Purchaser), (b) from Xxxxxx Xxxxxxx PLLC, special
counsel for the Company, covering the matters set forth in Exhibit 4.4(b) and
covering such other matters incident to the transactions contemplated hereby as
such Purchaser or such Purchaser's counsel may reasonably request (and the
Company hereby instructs its counsel to deliver such opinion to such Purchaser),
and (c) from Xxxxxxx and Xxxxxx, the Purchasers' special counsel in connection
with such transactions, substantially in the form set forth in Exhibit 4.4(c)
and covering such other matters incident to such transactions as such Purchaser
may reasonably request.
Section 4.5. Purchase Permitted by Applicable Law, Etc. On the date of
Closing each purchase of Notes shall (a) be permitted by the laws and
regulations of each jurisdiction to which each Purchaser is subject, without
recourse to provisions (such as Section 1405(a)(8) of the New York Insurance
Law) permitting limited investments by insurance companies without restriction
as to the character of the particular investment, (b) not violate any applicable
law or regulation (including, without limitation, Regulation T, U or X of the
Board of Governors of the Federal Reserve System) and (c) not subject any
Purchaser to any tax, penalty or liability under or pursuant to any applicable
law or regulation, which law or regulation was not in effect on the date hereof.
If requested by any Purchaser, such Purchaser shall have received an Officer's
Certificate certifying as to such matters of fact as such Purchaser may
reasonably specify to enable such Purchaser to determine whether such purchase
is so permitted.
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Section 4.6. Related Transactions. The Company shall have consummated the
sale of the entire principal amount of the Notes scheduled to be sold on the
date of Closing pursuant to this Agreement.
Section 4.7. Payment of Special Counsel Fees. Without limiting the
provisions of Section 15.1, the Company shall have paid on or before the
Closing, the reasonable fees, reasonable charges and reasonable disbursements of
the Purchasers' special counsel referred to in Section 4.4 to the extent
reflected in a statement of such counsel rendered to the Company at least one
Business Day prior to the Closing.
Section 4.8. Private Placement Number. A Private Placement Number issued
by Standard & Poor's CUSIP Service Bureau (in cooperation with the Securities
Valuation Office of the National Association of Insurance Commissioners) shall
have been obtained for the Notes.
Section 4.9. Changes in Corporate Structure. The Company shall not have
changed its jurisdiction of incorporation or, except as reflected in Schedule
4.9, been a party to any merger or consolidation and shall not have succeeded to
all or any substantial part of the liabilities of any other entity, at any time
following the date of the most recent financial statements referred to in
Schedule 5.5.
Section 4.10. Proceedings and Documents. All corporate and other
proceedings in connection with the transactions contemplated by this Agreement
and all documents and instruments incident to such transactions shall be
satisfactory to such Purchaser and such Purchaser's special counsel, and such
Purchaser and such Purchaser's special counsel shall have received all such
counterpart originals or certified or other copies of such documents as such
Purchaser or such Purchaser's special counsel may reasonably request.
Section 4.11. Subsidiary Guaranty. The Subsidiary Guaranty shall have been
duly authorized, executed and delivered by each Subsidiary Guarantor, and shall
constitute the legal, valid and binding contract and agreement of each
Subsidiary Guarantor.
Section 5. Representations and Warranties of the Company.
The Company represents and warrants to each Purchaser that:
Section 5.1. Organization; Power and Authority. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation, and is duly qualified as a foreign
corporation and is in good standing in each jurisdiction in which such
qualification is required by law, other than those jurisdictions as to which the
failure to be so qualified or in good standing could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. The Company
has the corporate power and authority to own or hold under lease the properties
it purports to own or hold under lease, to transact the business it transacts
and proposes to transact, to execute and deliver this Agreement and the Notes
and to perform the provisions hereof and thereof.
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Section 5.2. Authorization, Etc. This Agreement and the Notes have been
duly authorized by all necessary corporate action on the part of the Company,
and this Agreement constitutes, and upon execution and delivery thereof each
Note will constitute, a legal, valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, except as such
enforceability may be limited by (i) applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally and (ii) general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
Section 5.3. Disclosure. The Company, through its agent, Banc of America
Securities, LLC, has delivered to each Purchaser a copy of a Private Placement
Memorandum, dated September, 2002 (the "Memorandum"), relating to the
transactions contemplated hereby. The Memorandum fairly describes, in all
material respects, the general nature of the business and principal properties
of the Company and its Restricted Subsidiaries. This Agreement, the Memorandum,
the documents, certificates or other writings delivered to the Purchasers by or
on behalf of the Company in connection with the transactions contemplated hereby
and the financial statements listed in Schedule 5.5, 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. There has been no change in the
financial condition, operations, business, prospects or properties of the
Company or any of its Subsidiaries from those reported in the Company's Report
on Form 10-Q/A and the Prospectus dated as of June 17, 2002, 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 a Senior Executive Officer of
the Company that could reasonably be expected to have a Material Adverse Effect
that has not been set forth herein or in the Memorandum or in the other
documents, certificates and other writings delivered to each Purchaser by or on
behalf of the Company specifically for use in connection with the transactions
contemplated hereby. No representation and warranty is made, however, as to any
projections included within the foregoing other than that such projections are
based on information the Company believes to be accurate and were prepared in a
manner the Company believes to be reasonable.
Section 5.4. Organization and Ownership of Shares of Subsidiaries;
Affiliates. (a) Schedule 5.4 contains (except as noted therein) complete and
correct lists of (i) the Company's Restricted and Unrestricted Subsidiaries,
showing, as to each Subsidiary, the correct name thereof, the jurisdiction of
its organization, and the percentage of shares of each class of its capital
stock or similar equity interests outstanding owned by the Company and each
other Subsidiary, and all other Investments of the Company and its Restricted
Subsidiaries (excluding Investments by the Company and its Restricted
Subsidiaries in the Company and other Restricted Subsidiaries), (ii) the
Company's Affiliates, other than Subsidiaries, and (iii) the Company's directors
and senior officers.
(b) All of the outstanding shares of capital stock or similar equity
interests of each Subsidiary shown in Schedule 5.4 as being owned by the Company
and its Subsidiaries have been validly issued, are fully paid and nonassessable
and are owned by the Company or another Subsidiary free and clear of any Lien
(except as otherwise disclosed in Schedule 5.4).
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(c) Each Subsidiary identified in Schedule 5.4 is a corporation or other
legal entity duly organized, validly existing and in good standing under the
laws of its jurisdiction of organization, and is duly qualified as a foreign
corporation or other legal entity and is in good standing in each jurisdiction
in which such qualification is required by law, other than those jurisdictions
as to which the failure to be so qualified or in good standing could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. Each such Subsidiary has the corporate or other power and
authority to own or hold under lease the properties it purports to own or hold
under lease and to transact the business it transacts and proposes to transact.
(d) No Subsidiary is a party to, or otherwise subject to, any legal
restriction or any agreement (other than this Agreement, the agreements listed
on Schedule 5.4 and customary limitations imposed by corporate law statutes)
restricting the ability of such Subsidiary to pay dividends out of profits or
make any other similar distributions of profits to the Company or any of its
Subsidiaries that owns outstanding shares of capital stock or similar equity
interests of such Subsidiary.
Section 5.5. Financial Statements. The Company has delivered to each
Purchaser copies of the financial statements of the Company and its Subsidiaries
listed on Schedule 5.5. All of said financial statements (including in each case
the related schedules and notes) fairly present in all material respects the
consolidated financial position of the Company and its Subsidiaries as of the
dates specified in such financial statements and the consolidated results of
their operations and cash flows for the 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).
Section 5.6. Compliance with Laws, Other Instruments, Etc. The execution,
delivery and performance by the Company of this Agreement and the Notes will not
(a) contravene, result in any breach of, or constitute a default under, or
result in the creation of any Lien in respect of any property of the Company or
any Subsidiary under, any indenture, mortgage, deed of trust, loan, purchase or
credit agreement, lease, corporate charter or by-laws, or any other Material
agreement or instrument to which the Company or any Subsidiary is bound or by
which the Company or any Subsidiary or any of their respective properties may be
bound or affected, (b) conflict with or result in a breach of any of the terms,
conditions or provisions of any order, judgment, decree, or ruling of any court,
arbitrator or Governmental Authority applicable to the Company or any
Subsidiary, or (c) violate any provision of any statute or other rule or
regulation of any Governmental Authority applicable to the Company or any
Subsidiary.
Section 5.7. Governmental Authorizations, Etc. No consent, approval or
authorization of, or registration, filing or declaration with, any Governmental
Authority is required in connection with the execution, delivery or performance
by the Company of this Agreement or the Notes.
Section 5.8. Litigation; Observance of Statutes and Orders. (a) Except as
otherwise disclosed in Schedule 5.8, there are no actions, suits or proceedings
pending or, to the knowledge of the Company, threatened against or affecting the
Company or any Subsidiary or any property of the Company or any Subsidiary in
any court or before any arbitrator of any kind or before or
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by any Governmental Authority that, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect.
(b) Neither the Company nor any Subsidiary is in default under any term
of any agreement or instrument to which it is a party or by which it is bound,
or any order, judgment, decree or ruling of any court, arbitrator or
Governmental Authority or is in violation of any applicable law, ordinance, rule
or regulation (including without limitation Environmental Laws) of any
Governmental Authority, which default or violation, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.
Section 5.9. Taxes. The Company and its Subsidiaries have filed all
Material tax returns that are required to have been filed in any jurisdiction,
and have paid all taxes shown to be due and payable on such returns and all
other taxes and assessments levied upon them or their properties, assets, income
or franchises, to the extent such taxes and assessments have become due and
payable and before they have become delinquent, except for any taxes and
assessments (a) the amount of which is not individually or in the aggregate
Material or (b) the amount, applicability or validity of which is currently
being contested in good faith by appropriate proceedings and with respect to
which the Company or a Subsidiary, as the case may be, has established adequate
reserves in accordance with GAAP. The Company knows of no basis for any other
tax or assessment that could reasonably be expected to have a Material Adverse
Effect. The charges, accruals and reserves on the books of the Company and its
Subsidiaries in respect of federal, state or other taxes for all fiscal periods
are adequate in accordance with GAAP. The federal income tax liabilities of the
Company and its Subsidiaries have been determined by the Internal Revenue
Service and paid for all fiscal years up to and including the fiscal year ended
January 2, 1999.
Section 5.10. Title to Property; Leases. The Company and its Restricted
Subsidiaries have good and sufficient title to their respective properties which
the Company and its Restricted Subsidiaries own or purport to own that
individually or in the aggregate are Material, including all such properties
reflected in the most recent audited balance sheet referred to in Section 5.5 or
purported to have been acquired by the Company or any Restricted Subsidiary
after said date (except as sold or otherwise disposed of in the ordinary course
of business), in each case free and clear of Liens prohibited by this Agreement.
All leases that individually or in the aggregate are Material are valid and
subsisting and are in full force and effect in all material respects.
Section 5.11. Licenses, Permits, Etc. Except as disclosed in Schedule
5.11,
(a) the Company and its Restricted Subsidiaries own or possess
all licenses, permits, franchises, authorizations, patents, copyrights,
service marks, trademarks and trade names, or rights thereto, that
individually or in the aggregate are Material, without known Material
conflict with the rights of others;
(b) to the best knowledge of the Company, no product of the
Company or any of its Restricted Subsidiaries infringes in any Material
respect any license, permit, franchise, authorization, patent, copyright,
service xxxx, trademark, trade name or other right owned by any other
Person; and
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(c) to the best knowledge of the Company, there is no Material
violation by any Person of any right of the Company or any of its
Restricted Subsidiaries with respect to any patent, copyright, service
xxxx, trademark, trade name or other right owned or used by the Company
or any of its Restricted Subsidiaries.
Section 5.12. Compliance with ERISA. (a) Except as disclosed in Schedule
5.12, the Company 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. Neither the Company nor any ERISA Affiliate
has incurred any liability pursuant to Title I or IV of ERISA or the penalty or
excise tax provisions of the Code relating to 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 the Company or any ERISA Affiliate, or in the imposition of any
Lien on any of the rights, properties or assets of the Company or any ERISA
Affiliate, in either case pursuant to Title I or IV of ERISA or to such penalty
or excise tax provisions or to Section 401(a)(29) or 412 of the Code, other than
such liabilities or Liens as would not be individually or in the aggregate
Material.
(b) Except as disclosed in Schedule 5.12, the present value of the
aggregate benefit liabilities under each of the Plans (other than Multiemployer
Plans), determined as of the end of such Plan's most recently ended plan year on
the basis of the actuarial assumptions specified for funding purposes in such
Plan's most recent actuarial valuation report, did not exceed the aggregate
current value of the assets of such Plan allocable to such benefit liabilities.
The term "benefit liabilities" has the meaning specified in Section 4001 of
ERISA and the terms "current value" and "present value" have the meaning
specified in Section 3 of ERISA.
(c) The Company and its ERISA Affiliates have not incurred any withdrawal
liabilities (and are not subject to contingent withdrawal liabilities) under
Section 4201 or 4204 of ERISA in respect of Multiemployer Plans that
individually or in the aggregate are Material.
(d) The expected post-retirement benefit obligation (determined as of the
last day of the Company's most recently ended fiscal year in accordance with
Financial Accounting Standards Board Statement No. 106, without regard to
liabilities attributable to continuation coverage mandated by Section 4980B of
the Code) of the Company and its Subsidiaries is not Material or has otherwise
been disclosed in the most recent audited consolidated financial statements of
the Company and its Subsidiaries.
(e) The execution and delivery of this Agreement and the issuance and
sale of the Notes hereunder will not involve any transaction that is subject to
the prohibitions of Section 406 of ERISA or in connection with which a tax could
be imposed pursuant to Section 4975(c)(1)(A)-(D) of the Code, which in either
event could reasonably be expected to result in a Material Adverse Effect. The
representation by the Company in the first sentence of this Section 5.12(e) is
made in reliance upon and subject to the accuracy of each Purchaser's
representation in Section 6.2 as to the sources of the funds to be used to pay
the purchase price of the Notes to be purchased by such Purchaser.
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Section 5.13. Private Offering by the Company. Neither the Company nor
anyone acting on the Company's behalf has offered the Notes or any similar
securities for sale to, or solicited any offer to buy any of the same from, or
otherwise approached or negotiated in respect thereof with, any Person other
than the Purchasers and not more than forty-two other Institutional Investors,
each of which has been offered the Notes in connection with a private sale for
investment. Neither the Company nor anyone acting on its behalf has taken, or
will take, any action that would subject the issuance or sale of the Notes to
the registration requirements of Section 5 of the Securities Act.
Section 5.14. Use of Proceeds; Margin Regulations. The Company will apply
the proceeds of the sale of the Notes for general corporate purposes of the
Company and its Subsidiaries (including the repayment of Debt of the Company and
its Subsidiaries). No part of the proceeds from the sale of the Notes hereunder
will be used, directly or indirectly, for the purpose of buying or carrying any
margin stock within the meaning of Regulation U of the Board of Governors of the
Federal Reserve System (12 CFR 221), or for the purpose of buying or carrying or
trading in any securities under such circumstances as to involve the Company in
a violation of Regulation X of said Board (12 CFR 224) or to involve any broker
or dealer in a violation of Regulation T of said Board (12 CFR 220). Margin
stock does not constitute more than 2% of the value of the consolidated assets
of the Company and its Subsidiaries and the Company does not have any present
intention that margin stock will constitute more than 2% of the value of such
assets. As used in this Section, the terms "margin stock" and "purpose of buying
or carrying" shall have the meanings assigned to them in said Regulation U.
Section 5.15. Existing Debt; Future Liens. (a) Except as described
therein, Schedule 5.15 sets forth a complete and correct list of all outstanding
Debt of the Company and its Restricted Subsidiaries as of the date of Closing.
Neither the Company nor any Restricted Subsidiary is in default and no waiver of
default is currently in effect, in the payment of any principal or interest on
any Debt of the Company or such Restricted Subsidiary, the outstanding principal
amount of which exceeds $5,000,000 (either individually or in the aggregate) and
no event or condition exists with respect to any Debt of the Company or any
Restricted Subsidiary, the outstanding principal amount of which exceeds
$5,000,000 (either individually or in the aggregate), 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, neither the Company nor any
Restricted Subsidiary has agreed or consented to cause or permit in the future
(upon the happening of a contingency or otherwise) any of its property, whether
now owned or hereafter acquired, to be subject to a Lien not permitted by
Section 10.5.
Section 5.16. Foreign Assets Control Regulations, Etc. Neither the sale of
the Notes by the Company hereunder nor its use of the proceeds thereof will
violate the Trading with the Enemy Act, as amended, or any of the foreign assets
control regulations of the United States Treasury Department (31 CFR, Subtitle
B, Chapter V, as amended) or any enabling legislation or executive order
relating thereto, or is in violation of any federal statute or Presidential
Executive Order, including without limitation Executive Order 13224 66 Fed. Reg.
49079 (September 25,
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2001) (Blocking Property and Prohibiting Transactions with Persons who Commit,
Threaten to Commit or Support Terrorism).
Section 5.17. Status under Certain Statutes. Neither the Company nor any
Restricted Subsidiary is an "investment company" registered or required to be
registered under the Investment Company Act of 1940, as amended, or is subject
to regulation under the Public Utility Holding Company Act of 1935, as amended,
the ICC Termination Act of 1995, as amended, or the Federal Power Act, as
amended.
Section 5.18. Environmental Matters. Neither the Company nor any
Restricted Subsidiary has knowledge of any Material claim or has received any
notice of any Material claim, and no proceeding has been instituted raising any
Material claim against the Company or any of its Restricted Subsidiaries or any
of their respective real properties now or formerly owned, leased or operated by
any of them, or other assets, alleging damage to the environment or any
violation of any Environmental Laws, except, in each case, such as could not
reasonably be expected to result in a Material Adverse Effect. Except as
otherwise disclosed to each Purchaser in writing:
(a) neither the Company nor any Restricted Subsidiary has
knowledge of any facts which would give rise to any claim, public or
private, for violation of Environmental Laws or damage to the environment
emanating from, occurring on or in any way related to real properties now
or formerly owned, leased or operated by any of them or to other assets
or their use, except, in each case, such as could not reasonably be
expected to result in a Material Adverse Effect;
(b) neither the Company nor any of its Restricted Subsidiaries
has stored any Hazardous Materials on real properties now or formerly
owned, leased or operated by any of them or has disposed of any Hazardous
Materials in each case in a manner contrary to any Environmental Laws and
in any manner that could reasonably be expected to result in a Material
Adverse Effect; and
(c) all buildings on all real properties now owned, leased or
operated by the Company or any of its Restricted Subsidiaries are in
compliance with applicable Environmental Laws, except where failure to
comply could not reasonably be expected to result in a Material Adverse
Effect.
Section 6. Representations of the Purchaser.
Section 6.1. Purchase for Investment. Each Purchaser represents that it
is purchasing the Notes for its own account or for one or more separate accounts
maintained by it or for the account of one or more pension or trust funds and
not with a view to the distribution thereof, provided that the disposition of
such Purchaser's or such pension or trust funds' property shall at all times be
within such Purchaser's or such pension or trust funds' control. Each Purchaser
understands that the Notes have not been registered under the Securities Act and
may be resold only if registered pursuant to the provisions of the Securities
Act or if an exemption from
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registration is available, except under circumstances where neither such
registration nor such an exemption is required by law, and that the Company is
not required to register the Notes.
Section 6.2. Source of Funds. Each Purchaser represents that at least one
of the following statements is an accurate representation as to each source of
funds (a "Source") to be used by it to pay the purchase price of the Notes to be
purchased by it hereunder:
(a) the Source is an "insurance company general account" within
the meaning of Department of Labor Prohibited Transaction Exemption
("PTE") 95-60 (issued July 12, 1995) and there is no employee benefit
plan, treating as a single plan all plans maintained by the same employer
or employee organization, with respect to which the amount of the general
account reserves and liabilities for all contracts held by or on behalf
of such plan, exceeds ten percent (10%) of the total reserves and
liabilities of such general account (exclusive of separate account
liabilities) plus surplus, as set forth in the NAIC Annual Statement for
such Purchaser most recently filed with such Purchaser's state of
domicile; or
(b) the Source is either (i) an insurance company pooled
separate account, within the meaning of PTE 90-1 (issued January 29,
1990), or (ii) a bank collective investment fund, within the meaning of
the PTE 91-38 (issued July 12, 1991) and, except as such Purchaser prior
to the execution and delivery of this Agreement has disclosed to the
Company in writing pursuant to this paragraph (b), no employee benefit
plan or group of plans maintained by the same employer or employee
organization beneficially owns more than 10% of all assets allocated to
such pooled separate account or collective investment fund; or
(c) the Source constitutes assets of an "investment fund"
(within the meaning of Part V of the QPAM Exemption) managed by a
"qualified professional asset manager" or "QPAM" (within the meaning of
Part V of the QPAM Exemption), no employee benefit plan's assets that are
included in such investment fund, when combined with the assets of all
other employee benefit plans established or maintained by the same
employer or by an affiliate (within the meaning of Section V(c)(1) of the
QPAM Exemption) of such employer or by the same employee organization and
managed by such QPAM, exceed 20% of the total client assets managed by
such QPAM, the conditions of Part I(c) and (g) of the QPAM Exemption are
satisfied, neither the QPAM nor a person controlling or controlled by the
QPAM (applying the definition of "control" in Section V(e) of the QPAM
Exemption) owns a 5% or more interest in the Company and (i) the identity
of such QPAM and (ii) the names of all employee benefit plans whose
assets are included in such investment fund have been disclosed to the
Company in writing pursuant to this paragraph (c) prior to the execution
and delivery of this Agreement; or
(d) the Source is a governmental plan; or
(e) the Source is one or more employee benefit plans, or a
separate account or trust fund comprised of one or more employee benefit
plans, each of which prior to the
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execution and delivery of this Agreement has been identified to the
Company in writing pursuant to this paragraph (e); or
(f) the Source does not include assets of any employee benefit
plan, other than a plan exempt from the coverage of ERISA; or
(g) the Source is an insurance company separate account
maintained solely in connection with the fixed contractual obligations of
the insurance company under which the amounts payable, or credited, to
any employee benefit plan (or its related trust) and to any participant
or beneficiary of such plan (including any annuitant) are not affected in
any manner by the investment performance of the separate account.
If any Purchaser or any subsequent transferee of the Notes indicates that such
Purchaser or such transferee is relying on any representation contained in
paragraph (b), (c) or (e) above, the Company shall deliver on the date of
issuance of such Notes and on the date of any applicable transfer a certificate,
which shall either state that (i) it is neither a party in interest nor a
"disqualified person" (as defined in Section 4975(e)(2) of the Code), with
respect to any plan identified pursuant to paragraphs (b) or (e) above, or (ii)
with respect to any plan, identified pursuant to paragraph (c) above, neither it
nor any "affiliate" (as defined in Section V(c) of the QPAM Exemption) has at
such time, and during the immediately preceding one year, exercised the
authority to appoint or terminate said QPAM as manager of any plan identified in
writing pursuant to paragraph (c) above or to negotiate the terms of said QPAM's
management agreement on behalf of any such identified plan. As used in this
Section 6.2, the terms "employee benefit plan", "governmental plan", "party in
interest" and "separate account" shall have the respective meanings assigned to
such terms in Section 3 of ERISA.
Section 7. Information as to Company.
Section 7.1. Financial and Business Information. The Company shall
deliver to each holder of Notes that is an Institutional Investor:
(a) Quarterly Statements -- within 45 days after the end of each
quarterly fiscal period in each fiscal year of the Company (other than
the last quarterly fiscal period of each such fiscal year), duplicate
copies of,
(i) a consolidated balance sheet of the Company and its
Subsidiaries as at the end of such quarter, and
(ii) consolidated statements of income, changes in
shareholders' equity and cash flows of the Company and its
Subsidiaries, for such quarter and (in the case of the second and
third quarters) for the portion of the fiscal year ending with
such quarter,
setting forth in each case in comparative form the figures for the
corresponding periods in the previous fiscal year, all in reasonable
detail, prepared in accordance with GAAP applicable to quarterly
financial statements generally, and certified by a Senior Financial
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Officer as fairly presenting, in all material respects, the financial
position of the companies being reported on and their results of
operations and cash flows, subject to changes resulting from normal,
recurring year-end adjustments, provided that delivery within the time
period specified above of copies of the Company's Quarterly Report on
Form 10-Q prepared in compliance with the requirements therefor and filed
with the Securities and Exchange Commission shall be deemed to satisfy
the requirements of this Section 7.1(a);
(b) Annual Statements -- within 90 days after the end of each
fiscal year of the Company, duplicate copies of,
(i) a consolidated balance sheet of the Company and its
Subsidiaries, as at the end of such year, and
(ii) consolidated statements of income, changes in
shareholders' equity and cash flows of the Company and its
Subsidiaries, for such year,
setting forth in each case in comparative form the figures for the
previous fiscal year, all in reasonable detail, prepared in accordance
with GAAP, and accompanied by an opinion thereon of independent certified
public accountants of recognized national standing, which opinion shall
state that such financial statements present fairly, in all material
respects, the financial position of the companies being reported upon and
their results of operations and cash flows and have been prepared in
conformity with GAAP, and that the examination of such accountants in
connection with such financial statements has been made in accordance
with generally accepted auditing standards, and that such audit provides
a reasonable basis for such opinion in the circumstances, provided that
the delivery within the time period specified above of the Company's
Annual Report on Form 10-K for such fiscal year (together with the
Company's annual report to shareholders, if any, prepared pursuant to
Rule 14a-3 under the Exchange Act) prepared in accordance with the
requirements therefor and filed with the Securities and Exchange
Commission shall be deemed to satisfy the requirements of this Section
7.1(b);
(c) Unrestricted Subsidiaries -- in the event that one or more
Unrestricted Subsidiaries shall either (i) own more than 10% of the total
consolidated assets of the Company and its Subsidiaries, or (ii) account
for more than 10% of the consolidated gross revenues of the Company and
its Subsidiaries, determined in each case in accordance with GAAP, then,
within the respective periods provided in Sections 7.1(a) and (b), above,
the Company shall deliver to each holder of Notes that is an
Institutional Investor, unaudited financial statements of the character
and for the dates and periods as in said Sections 7.1(a) and (b) covering
such group of Unrestricted Subsidiaries (on a consolidated basis),
together with a consolidating statement reflecting eliminations or
adjustments required to reconcile the financial statements of such group
of Unrestricted Subsidiaries to the financial statements delivered
pursuant to Sections 7.1(a) and (b);
(d) SEC and Other Reports -- in addition to the financial
information provided pursuant to paragraphs (a) through (c) of this
Section 7.1, promptly upon their
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becoming available, one copy of (i) each financial statement, report,
notice or proxy statement sent by the Company or any Subsidiary to public
securities holders generally, and (ii) each regular or periodic report,
each registration statement (without exhibits except as expressly
requested by such holder), and each prospectus and all amendments thereto
filed by the Company or any Subsidiary with the Securities and Exchange
Commission containing information of a financial nature and of all press
releases and other statements made available generally by the Company or
any Subsidiary to the public concerning developments that are Material;
(e) Notice of Default or Event of Default -- promptly, and in
any event within ten Business Days after a Responsible Officer becomes
aware of the existence of any Default or Event of Default or that any
Person has given any notice or taken any action with respect to a claimed
default hereunder or that any Person has given any notice or taken any
action with respect to a claimed default of the type referred to in
Section 11(f), a written notice specifying the nature and period of
existence thereof and what action the Company is taking or proposes to
take with respect thereto;
(f) ERISA Matters -- promptly, and in any event within ten
Business Days after a Responsible Officer becomes aware of any of the
following, a written notice setting forth the nature thereof and the
action, if any, that the Company or an ERISA Affiliate proposes to take
with respect thereto:
(i) with respect to any Plan, any Reportable Event, as
defined in Section 4043(b) of ERISA and the regulations
thereunder, for which notice thereof has not been waived pursuant
to such regulations as in effect on the date thereof; or
(ii) the taking by the PBGC of steps to institute, or the
threatening by the PBGC of the institution of, proceedings under
Section 4042 of ERISA for the termination of, or the appointment
of a trustee to administer, any Plan, or the receipt by the
Company or any ERISA Affiliate of a notice from a Multiemployer
Plan that such action has been taken by the PBGC with respect to
such Multiemployer Plan; or
(iii) Any event, transaction or condition that could
result in the incurrence of any liability by the Company or any
ERISA Affiliate pursuant to Title I or IV of ERISA or the
imposition of a penalty or excise tax under the provisions of the
Code relating to employee benefit plans, or the imposition of any
Lien on any of the rights, properties or assets of the Company or
any ERISA Affiliate pursuant to Title I or IV of ERISA or such
penalty or excise tax provisions, if such liability or Lien,
taken together with any other such liabilities or Liens then
existing, could reasonably be expected to have a Material Adverse
Effect;
(g) Notices from Governmental Authority -- promptly, and in any
event within 30 days of receipt thereof, copies of any notice to the
Company or any Subsidiary
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from any federal or state Governmental Authority relating to any order,
ruling, statute or other law or regulation that could reasonably be
expected to have a Material Adverse Effect; and
(h) Requested Information -- with reasonable promptness, such
other data and information relating to the business, operations, affairs,
financial condition, assets or properties of the Company or any of its
Subsidiaries or relating to the ability of the Company to perform its
obligations hereunder and under the Notes as from time to time may be
reasonably requested by any such holder of Notes.
Section 7.2. Officer's Certificate. Each set of financial statements
delivered to a holder of Notes pursuant to Section 7.1(a) or Section 7.1(b)
hereof shall be accompanied by a certificate of a Senior Financial Officer
setting forth:
(a) Covenant Compliance -- the information (including detailed
calculations) required in order to establish whether the Company was in
compliance with the requirements of Section 10.1 through Section 10.4,
inclusive, and Section 10.6, during the quarterly or annual period
covered by the statements then being furnished (including with respect to
each such Section, where applicable, the calculations of the maximum or
minimum amount, ratio or percentage, as the case may be, permissible
under the terms of such Sections, and the calculation of the amount,
ratio or percentage then in existence); and
(b) Event of Default -- a statement that such officer has
reviewed the relevant terms hereof and has made, or caused to be made,
under his or her supervision, a review of the transactions and conditions
of the Company and its Subsidiaries from the beginning of the quarterly
or annual period covered by the statements then being furnished to the
date of the certificate and that such review shall not have disclosed the
existence during such period of any condition or event that constitutes a
Default or an Event of Default or, if any such condition or event existed
or exists (including, without limitation, any such event or condition
resulting from the failure of the Company or any Subsidiary to comply
with any Environmental Law), specifying the nature and period of
existence thereof and what action the Company shall have taken or
proposes to take with respect thereto.
Section 7.3. Inspection. The Company shall permit the representatives of
each holder of Notes that is an Institutional Investor:
(a) No Default -- if no Default or Event of Default then exists,
at the expense of such holder and upon reasonable prior notice to the
Company, to visit the principal executive office of the Company, to
discuss the affairs, finances and accounts of the Company and its
Subsidiaries with the Company's officers, and (with the consent of the
Company, which consent will not be unreasonably withheld) its independent
public accountants, and (with the consent of the Company, which consent
will not be unreasonably withheld) to visit the other offices and
properties of the Company and each
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Restricted Subsidiary, all at such reasonable times during normal
business hours and as often as may be reasonably requested in writing;
and
(b) Default -- if a Default or Event of Default then exists, at
the expense of the Company, to visit and inspect any of the offices or
properties of the Company or any Restricted Subsidiary, to examine all
their respective books of account, records, reports and other papers, to
make copies and extracts therefrom, and to discuss their respective
affairs, finances and accounts with their respective officers and
independent public accountants (and by this provision the Company
authorizes said accountants to discuss the affairs, finances and accounts
of the Company and its Subsidiaries), all at such time during normal
business hours and as often as may be requested.
Section 8. Payment of the Notes.
Section 8.1. Required Prepayments. On October 1, 2006 and on each October
1 thereafter to and including October 1, 2011, the Company will prepay
$21,428,571 principal amount (or such lesser principal amount as shall then be
outstanding) of the Notes at par and without payment of the Make-Whole Amount or
any premium. The entire unpaid principal amount of the Notes shall become due
and payable on October 1, 2012.
Upon any partial prepayment of the Notes pursuant to Section 8.2 or any
prepayment of the Notes pursuant to Section 10.6 or any purchase of less than
all of the Notes, the principal amount of each required prepayment of the Notes
becoming due under this Section 8.1 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 Notes is reduced as a result of such prepayment or
purchase.
Section 8.2. Optional Prepayments with Make-Whole Amount. The Company
may, at its option, upon notice as provided below, prepay at any time all, or
from time to time any part of, the Notes, in an amount not less than 10% of the
aggregate principal amount of the Notes then outstanding in the case of a
partial prepayment, at 100% of the principal amount so prepaid, together with
interest accrued thereon to the date of such prepayment, plus the Make-Whole
Amount determined for the prepayment date with respect to such principal amount
of each Note then outstanding. The Company will give each holder of Notes
written notice of each optional prepayment under this Section 8.2 not less than
30 days and not more than 60 days prior to the date fixed for such prepayment.
Each such notice shall specify such date, the aggregate principal amount of the
Notes to be prepaid on such date, the principal amount of each Note held by such
holder to be prepaid (determined in accordance with Section 8.3), and the
interest to be paid on the prepayment date with respect to such principal amount
being prepaid, and shall be accompanied by a certificate of a Senior Financial
Officer as to the estimated Make-Whole Amount due in connection with such
prepayment (calculated as if the date of such notice were the date of the
prepayment), setting forth the details of such computation. Two Business Days
prior to such prepayment, the Company shall deliver to each holder of Notes to
be prepaid a certificate of a Senior Financial Officer specifying the
calculation of such Make-Whole Amount as of the specified prepayment date.
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Section 8.3. Allocation of Partial Prepayments. In the case of each
partial prepayment of the Notes pursuant to the provisions of this Section 8,
the principal amount of the Notes to be prepaid shall be allocated among all of
the Notes at the time outstanding in proportion, as nearly as practicable, to
the respective unpaid principal amounts thereof.
Section 8.4. Maturity; Surrender, Etc. In the case of each prepayment of
Notes pursuant to this Section 8, the principal amount of each Note to be
prepaid shall mature and become due and payable on the date fixed for such
prepayment, together with interest on such principal amount accrued to such date
and the applicable Make-Whole Amount, if any. From and after such date, unless
the Company shall fail to pay such principal amount when so due and payable,
together with the interest and Make-Whole Amount, if any, as aforesaid, interest
on such principal amount shall cease to accrue. Any Note paid or prepaid in full
shall be surrendered to the Company and cancelled and shall not be reissued, and
no Note shall be issued in lieu of any prepaid principal amount of any Note.
Section 8.5. Purchase of Notes. The Company will not and will not permit
any Affiliate to purchase, redeem, prepay or otherwise acquire, directly or
indirectly, any of the outstanding Notes except upon the payment or prepayment
of the Notes in accordance with the terms of this Agreement and the Notes. The
Company will promptly cancel all Notes acquired by it or any Affiliate pursuant
to any payment, prepayment or purchase of Notes pursuant to any provision of
this Agreement and no Notes may be issued in substitution or exchange for any
such Notes.
Section 8.6. Make-Whole Amount for the Notes. The term "Make-Whole
Amount" means with respect to 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 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 Note, the principal
of the Note that is to be prepaid pursuant to Section 8.2 or has become
or is declared to be immediately due and payable pursuant to Section
12.1, as the context requires.
"Discounted Value" means, with respect to the Called Principal of
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 which
interest on the 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 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 "PX-1" on the Bloomberg
Financial Market Screen) for actively traded U.S. Treasury securities
having a maturity
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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 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 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
Note, then the amount of the next succeeding scheduled interest payment
will be reduced by the amount of interest accrued to such Settlement Date
and required to be paid on such Settlement Date pursuant to Section 8.2
or 12.1.
"Settlement Date" means, with respect to the Called Principal of
a Note, the date on which such Called Principal is to be prepaid pursuant
to Section 8.2 or has become or is declared to be immediately due and
payable pursuant to Section 12.1, as the context requires.
Section 9. Affirmative Covenants.
The Company covenants that so long as any of the Notes are outstanding:
Section 9.1. Compliance with Law. The Company will, and will cause each
of its Restricted Subsidiaries to, comply with all laws, ordinances or
governmental rules or regulations to which each of them is subject, including,
without limitation, Environmental Laws, (except in such instances where such
law, ordinance, rule or regulation is being contested in good faith by
appropriate proceedings diligently conducted) and will obtain and maintain in
effect all licenses, certificates, permits, franchises and other governmental
authorizations necessary to the
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ownership of their respective properties or to the conduct of their respective
businesses, in each case to the extent necessary to ensure that non-compliance
with such laws, ordinances or governmental rules or regulations or failures to
obtain or maintain in effect such licenses, certificates, permits, franchises
and other governmental authorizations could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
Section 9.2. Insurance. The Company will, and will cause each of its
Restricted Subsidiaries to, maintain, with financially sound and reputable
insurers, insurance with respect to their respective properties and businesses
against such casualties and contingencies, of such types, on such terms and in
such amounts (including deductibles, co-insurance and self-insurance, if
adequate reserves are maintained with respect thereto) as is customary in the
case of entities of established reputations engaged in the same or a similar
business and similarly situated.
Section 9.3. Maintenance of Properties. The Company will, and will cause
each of its Restricted Subsidiaries to, maintain and keep, or cause to be
maintained and kept, their respective properties in good repair, working order
and condition (other than ordinary wear and tear), so that the business carried
on in connection therewith may be properly conducted at all times, provided that
this Section shall not prevent the Company or any Restricted Subsidiary from
discontinuing the operation and the maintenance of any of its properties if such
discontinuance is desirable in the conduct of its business and the Company has
concluded that such discontinuance could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
Section 9.4. Payment of Taxes and Claims. The Company will, and will
cause each of its Restricted Subsidiaries to, file all tax returns required to
be filed in any jurisdiction and to pay and discharge all taxes shown to be due
and payable on such returns and all other taxes, assessments, governmental
charges, or levies imposed on them or any of their properties, assets, income or
franchises, to the extent such taxes and assessments have become due and payable
and before they have become delinquent and all claims for which sums have become
due and payable that have or might become a Lien on properties or assets of the
Company or any Restricted Subsidiary not permitted by Section 10.5, provided
that neither the Company nor any Restricted Subsidiary need pay any such tax or
assessment or claims if (i) the amount, applicability or validity thereof is
contested by the Company or such Restricted Subsidiary on a timely basis in good
faith and in appropriate proceedings, and the Company or a Restricted Subsidiary
has established adequate reserves therefor in accordance with GAAP on the books
of the Company or such Restricted Subsidiary or (ii) the non-filing or
nonpayment, as the case may be, of all such taxes and assessments in the
aggregate could not reasonably be expected to have a Material Adverse Effect.
Section 9.5. Corporate Existence, Etc. Subject to Sections 10.6 and 10.7,
the Company will at all times preserve and keep in full force and effect its
corporate existence, and will at all times preserve and keep in full force and
effect the corporate existence of each of its Restricted Subsidiaries (unless
merged into the Company or a Wholly-Owned Restricted Subsidiary) and all rights
and franchises of the Company and its Restricted Subsidiaries unless, in the
good faith judgment of the Company, the termination of or failure to preserve
and keep in full force and effect such corporate existence, right or franchise
-19-
could not, individually or in the aggregate, reasonably be expected in the good
faith judgment of the Company to have a Material Adverse Effect.
Section 9.6. Designation of Subsidiaries. The Company may from time to
time cause any Subsidiary to be designated as an Unrestricted Subsidiary or any
Unrestricted Subsidiary to be designated a Restricted Subsidiary; provided,
however, that at the time of such designation and immediately after giving
effect thereto, (a) no Default or Event of Default would exist under the terms
of this Agreement, and (b) the Company and its Restricted Subsidiaries would be
in compliance with all of the covenants set forth in this Section 9 and Section
10 if tested on the date of such action and provided, further, that once a
Restricted Subsidiary has been designated an Unrestricted Subsidiary, it shall
not thereafter be re-designated as a Restricted Subsidiary on more than one
occasion. Within ten (10) days following any designation described above, the
Company will deliver to you a notice of such designation accompanied by a
certificate signed by a Senior Financial Officer of the Company certifying
compliance with all requirements of this Section 9.6 and setting forth all
information required in order to establish such compliance.
Section 9.7. Subsidiary Guaranty. The Company will cause domestic
Subsidiaries (i) which in the aggregate have not less than 90% of the
consolidated domestic assets of the Company, (ii) which in the aggregate account
for not less than 90% of the consolidated domestic revenue of the Company, (iii)
which in the aggregate account for not less than 90% of consolidated domestic
net income of the Company and (iv) any other Person which is required by the
terms of the Bank Credit Agreement to become a party to, or otherwise guarantee,
Debt outstanding under the Bank Credit Agreement, to enter into the Subsidiary
Guaranty. In the case of any Subsidiary which becomes a Subsidiary Guarantor
after the date of the Closing, such Subsidiary shall deliver to each of the
holders of the Notes the following items:
(a) a joinder agreement in respect of the Subsidiary Guaranty;
(b) a certificate signed by the President, a Vice President or
another authorized Responsible Officer of the Company making
representations and warranties to the effect of those contained in
Sections 5.4, 5.6 and 5.7, with respect to such Subsidiary and the
Subsidiary Guaranty, as applicable; and
(c) an opinion of counsel (who may be in-house counsel for the
Company) addressed to each of the holders of the Notes satisfactory to
the Required Holders, to the effect that the Subsidiary Guaranty has been
duly authorized, executed and delivered and that the Subsidiary Guaranty
constitutes the legal, valid and binding contract and agreement of such
Subsidiary Guarantor enforceable in accordance with its terms, except as
an enforcement of such terms may be limited by bankruptcy, insolvency,
fraudulent conveyance and similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles.
Section 9.8. Notes to Rank Pari Passu. The obligations of the Company
with respect to the Notes are, and will at all times constitute, direct
unsecured obligations of the Company ranking pari passu as against the assets of
the Company with all other present and future
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unsecured Debt of the Company which is not expressed to be subordinate or junior
in rank to any other Debt of the Company.
Section 10. Negative Covenants.
The Company covenants that so long as any of the Notes are outstanding:
Section 10.1. Consolidated Adjusted Net Worth. The Company will not, at
any time, permit Consolidated Adjusted Net Worth to be less than the sum of (i)
$85,000,000 plus (ii) 25% of Consolidated Net Income (if positive) on a
cumulative basis for each fiscal quarter ending after June 29, 2002.
Section 10.2. Limitation on Consolidated Debt. The Company will not permit
the ratio of Consolidated Debt, as of the end of each fiscal quarter, to EBITDA
for the period of twelve consecutive calendar months ending on such date, to be
greater than (i) 2.75 to 1.00 at the end of any fiscal quarter ending on or
prior to September 30, 2004 and (ii) 2.50 to 1.00 at the end of any fiscal
quarter thereafter.
Section 10.3. Limitation on Priority Debt. The Company will not, at any
time, permit Priority Debt to exceed 10% of Consolidated Total Assets.
Section 10.4. Fixed Charge Coverage Ratio. The Company will not permit the
Fixed Charge Coverage Ratio, as of the end of each fiscal quarter, to be less
than 1.75 to 1.00.
Section 10.5. Limitation on Liens. The Company will not, and will not
permit any of its Restricted Subsidiaries to, directly or indirectly, create,
incur, assume or permit to exist (upon the happening of a contingency or
otherwise) any Lien on or with respect to any property or asset (including,
without limitation, any document or instrument in respect of goods or accounts
receivable) of the Company or any such Restricted Subsidiary, whether now owned
or held or hereafter acquired, or any income or profits therefrom, or assign or
otherwise convey any right to receive income or profits, except:
(a) Liens for taxes, assessments or other governmental charges
that are not yet due and payable or the payment of which is not at the
time required by Section 9.4;
(b) any attachment or judgment Lien, unless the judgment it
secures shall not, within 60 days after the entry thereof, have been
discharged or execution thereof stayed pending appeal, or shall not have
been discharged within 60 days after the expiration of any such stay;
(c) Liens incidental to the conduct of business or the ownership
of properties and assets (including landlords', carriers',
warehousemen's, mechanics', materialmen's and other similar Liens arising
in the ordinary course of business in respect of sums which are not
overdue for a period of more than 30 days) and Liens to secure, or to
obtain letters of credit to secure, the performance of bids, tenders,
leases, or trade contracts, or to secure statutory obligations (including
obligations under workers compensation,
-21-
unemployment insurance and other social security legislation), surety or
appeal bonds or other Liens incurred in the ordinary course of business
and not in connection with the borrowing of money, the obtaining of
advances of credit or the payments of the deferred purchase price of
property;
(d) leases or subleases granted to others, easements,
rights-of-way, restrictions and other similar charges or encumbrances, in
each case incidental to the ownership of property or assets or the
ordinary conduct of the business of the Company or any of its Restricted
Subsidiaries, provided that such Liens do not, in the aggregate,
Materially detract from the value of such property;
(e) Liens securing Debt of a Restricted Subsidiary owing to the
Company or to a Wholly-Owned Restricted Subsidiary;
(f) Liens existing as of the date of Closing and reflected in
Schedule 10.5;
(g) Liens incidental to minor survey exceptions and similar
Liens, provided that such Liens do not, in the aggregate, Materially
detract from the value of such property;
(h) Liens incurred after the date of Closing given to secure the
payment of the purchase price of property, or the cost of construction or
improvement of such property (other than accounts receivable or
inventory) useful and intended to be used in carrying on the business of
the Company or a Restricted Subsidiary, including Liens existing on such
property at the time of acquisition or construction thereof or created
contemporaneously therewith, or Liens incurred within 270 days of such
acquisition and/or the completion of such construction or improvement,
provided that (i) the Lien shall attach solely to the property acquired,
purchased, constructed or improved; (ii) at the time of acquisition,
construction or improvement of such property, the aggregate amount
remaining unpaid on all Debt secured by Liens on such property, whether
or not assumed by the Company or a Restricted Subsidiary, shall not
exceed the lesser of (y) the cost to the Company or such Restricted
Subsidiary of such acquisition, construction or improvement or (z) the
Fair Market Value of such property (as determined in good faith by one or
more officers of the Company to whom authority to enter into the
transaction has been delegated by the board of directors of the Company);
and (iii) at the time of such incurrence and after giving effect thereto,
no Default or Event of Default would exist;
(i) any Lien existing on property of a Person immediately prior
to its being consolidated with or merged into the Company or a Restricted
Subsidiary or its becoming a Restricted Subsidiary, or any Lien existing
on any property acquired by the Company or any Restricted Subsidiary at
the time such property is so acquired (whether or not the Debt secured
thereby shall have been assumed), provided that (i) no such Lien shall
have been created or assumed in contemplation of such consolidation or
merger or such Person's becoming a Restricted Subsidiary or such
acquisition of property, (ii) each such Lien shall extend solely to the
item or items of property so acquired and, if required by
-22-
the terms of the instrument originally creating such Lien, other property
which is an improvement to or is acquired for specific use in connection
with such acquired property, and (iii) at the time of such incurrence and
after giving effect thereto, no Default or Event of Default would exist;
(j) any extensions, renewals, refinancings, refundings or
replacements of any Lien permitted by the preceding subparagraphs (e),
(f), (h) and (i) of this Section 10.5, provided that (i) no additional
property shall be encumbered by such Liens, (ii) the unpaid principal
amount of the Debt or other obligations secured thereby shall not be
increased on or after the date of any extension, renewal or replacement,
and (iii) at such time and immediately after giving effect thereto, no
Default or Event of Default shall have occurred and be continuing; and
(k) in addition to the Liens permitted by the preceding
subparagraphs (a) through (j), inclusive, of this Section 10.5, Liens
securing Debt of the Company or any Restricted Subsidiary, provided that
the aggregate principal amount of Debt secured by Liens pursuant to this
Section 10.5(k) shall be permitted pursuant to Section 10.3.
Section 10.6. Sales of Assets. The Company will not, and will not permit
any Restricted Subsidiary to, sell, lease or otherwise dispose of any
substantial part (as defined below) of the assets of the Company and its
Restricted Subsidiaries; provided, however, that the Company or any Restricted
Subsidiary may sell, lease or otherwise dispose of assets constituting a
substantial part of the assets of the Company and its Restricted Subsidiaries if
such assets are sold in an arm's-length transaction for consideration which is
not less than the Fair Market Value of such property and such sale is in the
best interests of the Company and, at such time and after giving effect thereto,
no Default or Event of Default shall have occurred and be continuing and an
amount equal to the Net Proceeds received from such sale, lease or other
disposition shall be used within 270 days of such sale, lease or disposition, in
any combination:
(1) to acquire assets and properties used or useful in carrying
on the business of the Company and its Restricted Subsidiaries; or
(2) to prepay or retire Senior Debt of the Company or its
Restricted Subsidiaries; provided that (i) the Company shall offer to
prepay each outstanding Note in a principal amount which equals the
Ratable Portion for such Note, (ii) any such prepayment of the Notes
shall be made at par, together with accrued interest thereon to the date
of such prepayment, without the payment of the Make-Whole Amount and
(iii) in connection with any prepayment of the revolving credit facility
under the Bank Credit Agreement (or similar credit facility) the
revolving commitment shall be permanently reduced by the amount of such
prepayment.
Any offer of prepayment of the Notes pursuant to this Section 10.6 shall
be given to each holder of the Notes by written notice which shall be delivered
not less than 30 days and not more than 60 days prior to the proposed prepayment
date. Each such notice shall state that it is given pursuant to this Section and
that the offer set forth in such notice must be accepted by such holder in
writing and shall also set forth (i) the prepayment date, (ii) a description of
the
-23-
circumstances which give rise to the proposed prepayment, and (iii) a
calculation of the Ratable Portion for such holder's Notes. Each holder of the
Notes which desires to have its Notes prepaid shall notify the Company in
writing delivered not less than 5 Business Days prior to the proposed prepayment
date of its acceptance of such offer of prepayment. If any holder of a Note or
any other Senior Debt shall fail to accept an offer of prepayment pursuant to
this Section 10.6, the Company shall thereafter re-offer to prepay Senior Debt
(ratably among all holders of Senior Debt which shall have accepted the initial
offer of prepayment) in a principal amount equal to the portion of such Net
Proceeds which shall not have been applied to the prepayment of Senior Debt
pursuant to the initial offer. The Company shall not receive credit pursuant to
this Section 10.6 for any portion of the Senior Debt which has not been prepaid
in accordance with offers made pursuant to this Section.
As used in this Section 10.6, a sale, lease or other disposition of
assets shall be deemed to be a "substantial part" of the assets of the Company
and its Restricted Subsidiaries if the book value of such assets, when added to
the book value of all other assets sold, leased or otherwise disposed of by the
Company and its Restricted Subsidiaries during any fiscal year of the Company
exceeds 10% of the book value of Consolidated Total Assets, determined as of the
end of the fiscal year immediately preceding such sale, lease or other
disposition; provided that there shall be excluded from any determination of a
"substantial part" any (i) sale or disposition of assets in the ordinary course
of business of the Company and its Restricted Subsidiaries, (ii) any transfer of
assets from the Company to any Wholly-Owned Restricted Subsidiary or from any
Restricted Subsidiary to the Company or a Wholly-Owned Restricted Subsidiary,
and (iii) any Excluded Sale and Leaseback Transaction.
Section 10.7. Merger, Consolidation and Sale of Stock. (a) The Company
will not, and will not permit any of its Restricted Subsidiaries to, consolidate
with or merge with any other corporation or convey, transfer or lease
substantially all of its assets in a single transaction or series of
transactions to any Person; provided that:
(1) a Restricted Subsidiary of the Company may (x) consolidate
with or merge with, or convey, transfer or lease substantially all of its
assets in a single transaction or series of transactions to, the Company
or a Wholly-Owned Restricted Subsidiary or any other Person so long as in
any merger or consolidation involving the Company, the Company shall be
the surviving or continuing corporation, and in any merger or
consolidation involving such other Person, the Restricted Subsidiary
shall be the surviving or continuing corporation, or (y) convey, transfer
or lease all of its assets in compliance with the provisions of Section
10.6; and
(2) the foregoing restriction does not apply to the
consolidation or merger of the Company with, or the conveyance, transfer
or lease of substantially all of the assets of the Company in a single
transaction or series of transactions to, any Person so long as:
(A) the successor formed by such consolidation or the
survivor of such merger or the Person that acquires by
conveyance, transfer or lease substantially all of the assets of
the Company as an entirety, as the case may be (the "Successor
Corporation"), shall be a solvent corporation organized and
existing under the
-24-
laws of the United States of America, any state thereof or the
District of Columbia;
(B) the Successor Corporation would be permitted by the
provisions of Section 10.2 hereof to incur at least $1.00 of
additional Consolidated Debt on a pro forma basis as of the end
of the immediately preceding fiscal quarter;
(C) if the Company is not the Successor Corporation, such
corporation shall have executed and delivered to each holder of
Notes its assumption of the due and punctual performance and
observance of each covenant and condition of this Agreement and
the Notes (pursuant to such agreements and instruments as shall
be reasonably satisfactory to the Required Holders), and the
Company shall have caused to be delivered to each holder of Notes
(i) an opinion of nationally recognized independent counsel, to
the effect that all agreements or instruments effecting such
assumption are enforceable in accordance with their terms and
comply with the terms hereof, and (ii) an acknowledgment from
each Subsidiary Guarantor that the Subsidiary Guaranty continues
in full force and effect; and
(D) immediately after giving effect to such transaction no
Default or Event of Default would exist.
(b) The Company will not permit any Restricted Subsidiary to issue or
sell any shares of stock or other equity interests of any class (including as
"stock" for the purposes of this Section 10.7(b), any warrants, rights or
options to purchase or otherwise acquire stock or other equity interests or
other securities exchangeable for or convertible into stock or other equity
interests) of such Restricted Subsidiary to any Person other than the Company or
a Wholly-Owned Restricted Subsidiary, except for the purpose of qualifying
directors, or except in satisfaction of the validly pre-existing preemptive or
contractual rights of minority shareholders in connection with the simultaneous
issuance of stock or other equity interests to the Company and/or a Restricted
Subsidiary whereby the Company and/or such Restricted Subsidiary maintain their
same proportionate interest in such Restricted Subsidiary or to the extent
required by local law.
(c) The Company will not sell, transfer or otherwise dispose of any
shares of stock or other equity interests of any Restricted Subsidiary (except
to qualify directors), and will not permit any Restricted Subsidiary to sell,
transfer or otherwise dispose of (except to the Company or a Wholly-Owned
Restricted Subsidiary) any shares of stock or other equity interests of any
other Restricted Subsidiary, unless such sale or other disposition can be made
within the limitations of Section 10.6 or this Section 10.7.
Section 10.8. Nature of Business. The Company will not engage in any
business, if, as a result, when taken as a whole, the general nature of the
business of the Company would be substantially changed from the general nature
of the business of the Company on the Closing.
Section 10.9. Transactions with Affiliates. The Company will not and will
not permit any Restricted Subsidiary to enter into directly or indirectly any
Material transaction or Material
-25-
group of related transactions (including without limitation the purchase, lease,
sale or exchange of properties of any kind or the rendering of any service) with
any Affiliate (other than the Company or another Restricted Subsidiary), except
upon fair and reasonable terms no less favorable to the Company or such
Restricted Subsidiary than would be obtainable in a comparable arm's-length
transaction with a Person not an Affiliate.
Section 11. Events of Default.
An "Event of Default" shall exist if any of the following conditions or
events shall occur and be continuing:
(a) the Company defaults in the payment of any principal or
Make-Whole Amount, if any, on any Note when the same becomes due and
payable, whether at maturity or at a date fixed for prepayment or by
declaration or otherwise; or
(b) the Company defaults in the payment of any interest on any
Note for more than five Business Days after the same becomes due and
payable; or
(c) the Company defaults in the performance of or compliance
with any term contained in Section 10; or
(d) the Company defaults in the performance of or compliance
with any term contained herein (other than those referred to in
paragraphs (a), (b) and (c) of this Section 11) and such default is not
remedied within 30 days after the earlier of (i) a Responsible Officer
obtaining actual knowledge of such default and (ii) the Company receiving
written notice of such default from any holder of a Note (any such
written notice to be identified as a "notice of default" and to refer
specifically to this paragraph (d) of Section 11); or
(e) a default shall occur in the observance or performance of
any covenant or agreement contained in the Subsidiary Guaranty by a
Subsidiary Guarantor and such default shall continue beyond the period of
grace, if any, allowed with respect thereto or the Subsidiary Guaranty
shall cease to be in full force and effect for any reason whatsoever,
including, without limitation, a determination by any governmental body
or court that such agreement is invalid, void or unenforceable against a
Subsidiary Guarantor or such Subsidiary Guarantor shall contest or deny
in writing the validity or enforceability of any of its obligations under
the Subsidiary Guaranty; or
(f) any representation or warranty made in writing by or on
behalf of the Company or a Subsidiary Guarantor or by any officer of the
Company or a Subsidiary Guarantor in this Agreement or in any writing
furnished in connection with the transactions contemplated hereby or
thereby proves to have been false or incorrect in any material respect on
the date as of which made; or
(g) (i) the Company or any Restricted Subsidiary is in default
(as principal or as guarantor or other surety) in the payment of any
principal of or premium or make-
-26-
whole amount or interest on any Debt other than the Notes that is
outstanding in an aggregate principal amount of at least $5,000,000
beyond any period of grace provided with respect thereto, or (ii) the
Company or any Restricted Subsidiary is in default in the performance of
or compliance with any term of any instrument, mortgage, indenture or
other agreement relating to any Debt other than the Notes in an aggregate
principal amount of at least $5,000,000 or any other condition exists,
and as a consequence of such default or condition such Debt has become,
or has been declared, due and payable before its stated maturity or
before its regularly scheduled dates of payment, or (iii) as a
consequence of the occurrence or continuation of any event or condition
(other than the passage of time or the right of the holder of Debt to
convert such Debt into equity interests), the Company or any Restricted
Subsidiary has become obligated to purchase or repay Debt other than the
Notes that is outstanding in an aggregate principal amount of at least
$5,000,000 before its regular maturity or before its regularly scheduled
dates of payment; or
(h) the Company or any Significant Subsidiary (i) files, or
consents by answer or otherwise to the filing against it of, a petition
for relief or reorganization or arrangement or any other petition in
bankruptcy, for liquidation or to take advantage of any bankruptcy,
insolvency, reorganization, moratorium or other similar law of any
jurisdiction, (ii) makes an assignment for the benefit of its creditors,
(iii) consents to the appointment of a custodian, receiver, trustee or
other officer with similar powers with respect to it or with respect to
any substantial part of its property, (iv) is adjudicated as insolvent or
to be liquidated, (v) admits in writing its inability to pay its debts as
they mature, or (vi) takes corporate action for the purpose of any of the
foregoing; or
(i) a court or governmental authority of competent jurisdiction
enters an order appointing, without consent by the Company or any
Significant Subsidiary, a custodian, receiver, trustee or other officer
with similar powers with respect to it or with respect to any substantial
part of its property, or constituting an order for relief or approving a
petition for relief or reorganization or any other petition in bankruptcy
or for liquidation or to take advantage of any bankruptcy or insolvency
law of any jurisdiction, or ordering the dissolution, winding-up or
liquidation of the Company or any Significant Subsidiary, or any such
petition shall be filed against the Company or any Significant Subsidiary
and such petition shall not be dismissed within 60 days; or
(j) a final judgment or judgments at any one time outstanding
for the payment of money aggregating in excess of $5,000,000 are rendered
against one or more of the Company and any Restricted Subsidiary and
which judgments are not, within 60 days after entry thereof, bonded,
discharged or stayed pending appeal, or are not discharged within 60 days
after the expiration of such stay; or
(k) if (i) any Plan shall fail to satisfy the minimum funding
standards of ERISA or the Code for any plan year or part thereof or a
waiver of such standards or extension of any amortization period is
sought or granted under Section 412 of the Code, (ii) a notice of intent
to terminate any Plan shall have been or is reasonably expected to be
filed with the PBGC or the PBGC shall have instituted proceedings under
-27-
Section 4042 of ERISA to terminate or appoint a trustee to administer any
Plan or the PBGC shall have notified the Company or any ERISA Affiliate
that a Plan may become a subject of any such proceedings, (iii) the
aggregate "amount of unfunded benefit liabilities" (within the meaning of
Section 4001(a)(18) of ERISA) under all Plans, determined in accordance
with Title IV of ERISA, shall exceed an amount equal to $5,000,000, (iv)
the Company or any ERISA Affiliate shall have incurred or is reasonably
expected to incur any liability pursuant to Title I or IV of ERISA or the
penalty or excise tax provisions of the Code relating to employee benefit
plans, (v) the Company or any ERISA Affiliate withdraws from any
Multiemployer Plan, or (vi) the Company or any Subsidiary establishes or
amends any employee welfare benefit plan that provides post-employment
welfare benefits in a manner that could increase the liability of the
Company or any Subsidiary thereunder; and any such event or events
described in clauses (i) through (vi) above, either individually or
together with any other such event or events, could reasonably be
expected to have a Material Adverse Effect.
As used in Section 11(k), the terms "employee benefit plan" and "employee
welfare benefit plan" shall have the respective meanings assigned to such terms
in Section 3 of ERISA.
Section 12. Remedies On Default, Etc.
Section 12.1. Acceleration. (a) If an Event of Default with respect to the
Company described in paragraph (h) or (i) of Section 11 has occurred, all the
Notes then outstanding shall automatically become immediately due and payable.
(b) If any other Event of Default has occurred and is continuing, any
holder or holders of more than 50% in aggregate principal amount of the Notes at
the time outstanding may at any time at its or their option, by notice or
notices to the Company, declare all the Notes then outstanding to be immediately
due and payable.
(c) If any Event of Default described in paragraph (a) or (b) of Section
11 has occurred and is continuing with respect to any of the Notes, any holder
or holders of Notes at the time outstanding affected by such Event of Default
may at any time, at its or their option, by notice or notices to the Company,
declare all the Notes held by such holder or holders to be immediately due and
payable.
Upon any Note's becoming due and payable under this Section 12.1, whether
automatically or by declaration, such Note will forthwith mature and the entire
unpaid principal amount of such Note, plus (i) all accrued and unpaid interest
thereon and (ii) the Make-Whole Amount determined in respect of such principal
amount (to the full extent permitted by applicable law), shall all be
immediately due and payable, in each and every case without presentment, demand,
protest or further notice, all of which are hereby waived. The Company
acknowledges, and the parties hereto agree, that each holder of a Note has the
right to maintain its investment in the Notes free from repayment by the Company
(except as herein specifically provided for) and that the provision for payment
of a Make-Whole Amount by the Company in the event that the Notes are prepaid or
are accelerated as a result of an Event of Default, is intended to provide
compensation for the deprivation of such right under such circumstances.
-28-
Section 12.2. Other Remedies. If any Default or Event of Default has
occurred and is continuing, and irrespective of whether any Notes have become or
have been declared immediately due and payable under Section 12.1, the holder of
any Note at the time outstanding may proceed to protect and enforce the rights
of such holder by an action at law, suit in equity or other appropriate
proceeding, whether for the specific performance of any agreement contained
herein or in any Note, or for an injunction against a violation of any of the
terms hereof or thereof, or in aid of the exercise of any power granted hereby
or thereby or by law or otherwise.
Section 12.3. Rescission. At any time after any Notes have been declared
due and payable pursuant to clause (b) or (c) of Section 12.1, the holders of
more than 50% in aggregate principal amount of the Notes then outstanding, by
written notice to the Company, may rescind and annul any such declaration and
its consequences if (a) the Company has paid all overdue interest on the Notes,
all principal of and Make-Whole Amount, if any, on any Notes that are due and
payable and are unpaid other than by reason of such declaration, and all
interest on such overdue principal and Make-Whole Amount, if any, and (to the
extent permitted by applicable law) any overdue interest in respect of the
Notes, at the Default Rate, (b) all Events of Default and Defaults, other than
non-payment of amounts that have become due solely by reason of such
declaration, have been cured or have been waived pursuant to Section 17, and (c)
no judgment or decree has been entered for the payment of any monies due
pursuant hereto or to any Notes. No rescission and annulment under this Section
12.3 will extend to or affect any subsequent Event of Default or Default or
impair any right consequent thereon.
Section 12.4. No Waivers or Election of Remedies, Expenses, Etc. No course
of dealing and no delay on the part of any holder of any Note in exercising any
right, power or remedy shall operate as a waiver thereof or otherwise prejudice
such holder's rights, powers or remedies. No right, power or remedy conferred by
this Agreement or by any Note upon any holder thereof shall be exclusive of any
other right, power or remedy referred to herein or therein or now or hereafter
available at law, in equity, by statute or otherwise. Without limiting the
obligations of the Company under Section 15, the Company will pay to the holder
of each Note on demand such further amount as shall be sufficient to cover all
costs and expenses of such holder incurred in any enforcement or collection
under this Section 12, including, without limitation, the reasonable attorneys'
fees, expenses and disbursements for the holders as set forth in Section 15.
Section 13. Registration; Exchange; Substitution of Notes.
Section 13.1. Registration of Notes. The Company shall keep at its
principal executive office a register for the registration and registration of
transfers of Notes. The name and address of each holder of one or more Notes,
each transfer thereof and the name and address of each transferee of one or more
Notes shall be registered in such register. Prior to due presentment for
registration of transfer, the Person in whose name any Note shall be registered
shall be deemed and treated as the owner and holder thereof for all purposes
hereof, and the Company shall not be affected by any notice or knowledge to the
contrary. The Company shall give to any holder of a Note that is an
Institutional Investor promptly upon request therefor, a complete and correct
copy of the names and addresses of all registered holders of Notes.
-29-
Section 13.2. Transfer and Exchange of Notes. Upon surrender of any Note
at the principal executive office of the Company for registration of transfer or
exchange (and in the case of a surrender for registration of transfer, duly
endorsed or accompanied by a written instrument of transfer duly executed by the
registered holder of such Note or its attorney duly authorized in writing and
accompanied by the address for notices of each transferee of such Note or part
thereof), the Company shall execute and deliver not more than 5 Business Days
following surrender of such Note, at the Company's expense (except as provided
below), one or more new Notes (as requested by the holder thereof) in exchange
therefor, in an aggregate principal amount equal to the unpaid principal amount
of the surrendered Note. Each such new Note shall be payable to such Person as
such holder may request and shall be substantially in the form of the Note
originally issued hereunder. Each such new Note shall be dated and bear interest
from the date to which interest shall have been paid on the surrendered Note or
dated the date of the surrendered Note if no interest shall have been paid
thereon. The Company may require payment of a sum sufficient to cover any stamp
tax or governmental charge imposed in respect of any such transfer of Notes.
Notes shall not be transferred in denominations of less than $200,000, provided
that if necessary to enable the registration of transfer by a holder of its
entire holding of Notes, one Note may be in a denomination of less than
$200,000. Any transferee, by its acceptance of a Note registered in its name (or
the name of its nominee), shall be deemed to have made the representation set
forth in Section 6.2, provided that such holder may (in reliance upon
information provided by the Company, which shall not be unreasonably withheld)
make a representation to the effect that the purchase by such holder of any Note
will not constitute a non-exempt prohibited transaction under Section 406(a) of
ERISA.
The Notes have not been registered under the Securities Act or under the
securities laws of any state and may not be transferred or resold unless
registered under the Securities Act and all applicable state securities laws or
unless an exemption from the requirement for such registration is available.
Section 13.3. Replacement of Notes. Upon receipt by the Company of
evidence reasonably satisfactory to it of the ownership of and the loss, theft,
destruction or mutilation of any Note (which evidence shall be, in the case of
an Institutional Investor, notice from such Institutional Investor of such
ownership and such loss, theft, destruction or mutilation), and
(a) in the case of loss, theft or destruction, of indemnity
reasonably satisfactory to it (provided that if the holder of such Note
is, or is a nominee for, an original Purchaser or another holder of a
Note with a minimum net worth of at least $50,000,000, such Person's own
unsecured agreement of indemnity shall be deemed to be satisfactory), or
(b) in the case of mutilation, upon surrender and cancellation
thereof,
the Company at its own expense shall execute and deliver not more than five
Business Days following satisfaction of such conditions, in lieu thereof, a new
Note, dated and bearing interest from the date to which interest shall have been
paid on such lost, stolen, destroyed or mutilated Note or dated the date of such
lost, stolen, destroyed or mutilated Note if no interest shall have been paid
thereon.
-30-
Section 14. Payments on Notes.
Section 14.1. Place of Payment. Subject to Section 14.2, payments of
principal, Make-Whole Amount, if any, and interest becoming due and payable on
the Notes shall be made in New York, New York at the principal office of Bank of
America, N.A. in such jurisdiction. The Company may at any time, by notice to
each holder of a Note, change the place of payment of the Notes so long as such
place of payment shall be either the principal office of the Company in such
jurisdiction or the principal office of a bank or trust company in such
jurisdiction.
Section 14.2. Home Office Payment. So long as any Purchaser or such
Purchaser's nominee shall be the holder of any Note, and notwithstanding
anything contained in Section 14.1 or in such Note to the contrary, the Company
will pay all sums becoming due on such Note for principal, Make-Whole Amount, if
any, and interest by the method and at the address specified for such purpose
for such Purchaser on Schedule A hereto, or by such other method or at such
other address as such Purchaser shall have from time to time specified to the
Company in writing for such purpose, without the presentation or surrender of
such Note or the making of any notation thereon, except that upon written
request of the Company made concurrently with or reasonably promptly after
payment or prepayment in full of any Note, such Purchaser shall surrender such
Note for cancellation, reasonably promptly after any such request, to the
Company at its principal executive office or at the place of payment most
recently designated by the Company pursuant to Section 14.1. Prior to any sale
or other disposition of any Note held by any Purchaser or such Person's nominee,
such Person will, at its election, either endorse thereon the amount of
principal paid thereon and the last date to which interest has been paid thereon
or surrender such Note to the Company in exchange for a new Note or Notes
pursuant to Section 13.2. The Company will afford the benefits of this Section
14.2 to any Institutional Investor that is the direct or indirect transferee of
any Note.
Section 15. Expenses, Etc.
Section 15.1. Transaction Expenses. Whether or not the transactions
contemplated hereby are consummated, the Company will pay all reasonable costs
and expenses (including reasonable attorneys' fees of one special counsel for
the Purchasers and, if reasonably required, local or other counsel) incurred by
the Purchasers and the holders of Notes in connection with such transactions and
in connection with any amendments, waivers or consents under or in respect of
this Agreement or the Notes (whether or not such amendment, waiver or consent
becomes effective), including, without limitation: (a) the reasonable costs and
expenses incurred in enforcing or defending (or determining whether or how to
enforce or defend) any rights under this Agreement or the Notes or in responding
to any subpoena or other legal process or informal investigative demand by any
Governmental Authority issued in connection with this Agreement or the Notes, or
by reason of being a holder of any Note, and (b) the reasonable costs and
expenses, including financial advisors' fees, incurred in connection with the
insolvency or bankruptcy of the Company or any Restricted Subsidiary or in
connection with any work-out or restructuring of the transactions contemplated
hereby and by the Notes. The Company will pay, and will save each Purchaser and
each other holder of a Note harmless from, all claims in respect of any
reasonable fees, costs or expenses if any, of brokers and finders (other than
those retained by the Purchasers).
-31-
Section 15.2. Survival. The obligations of the Company under this Section
15 will survive the payment or transfer of any Note, the enforcement, amendment
or waiver of any provision of this Agreement or the Notes, and the termination
of this Agreement.
Section 16. Survival of Representations and Warranties; Entire Agreement.
All representations and warranties contained herein shall survive the
execution and delivery of this Agreement and the related Notes, the purchase or
transfer by any Purchaser of any such Note or portion thereof or interest
therein and the payment of any Note may be relied upon by any subsequent holder
of any such Note, regardless of any investigation made at any time by or on
behalf of any Purchaser or any other holder of any such Note. All statements
contained in any certificate or other instrument delivered by or on behalf of
the Company pursuant to this Agreement shall be deemed representations and
warranties of the Company under this Agreement. Subject to the preceding
sentence, this Agreement and the Notes embody the entire agreement and
understanding between the Purchasers and the Company and supersede all prior
agreements and understandings relating to the subject matter hereof.
Section 17. Amendment and Waiver.
Section 17.1. Requirements. This Agreement and the Notes may be amended,
and the observance of any term hereof or of the Notes may be waived (either
retroactively or prospectively), with (and only with) the written consent of the
Company and the Required Holders, except that (i) no amendment or waiver of any
of the provisions of Section 1, 2, 3, 4, 5, 6 or 21 hereof, or any defined term
as it is used in any such Section, will be effective as to any holder of Notes
unless consented to by such holder of Notes in writing, and (ii) no such
amendment or waiver may, without the written consent of all of the holders of
Notes at the time outstanding affected thereby, (A) subject to the provisions of
Section 12 relating to acceleration or rescission, change the amount or time of
any prepayment or payment of principal of, or reduce the rate or change the time
of payment or method of computation of interest or of the Make-Whole Amount on,
the Notes, (B) change the percentage of the principal amount of the Notes the
holders of which are required to consent to any such amendment or waiver, or (C)
amend any of Sections 8, 11(a), 11(b), 12, 17 or 20.
Section 17.2. Solicitation of Holders of Notes.
(a) Solicitation. The Company will provide each holder of the Notes
(irrespective of the amount of Notes then owned by it) with sufficient
information, sufficiently far in advance of the date a decision is required, to
enable such holder to make an informed and considered decision with respect to
any proposed amendment, waiver or consent in respect of any of the provisions
hereof or of the Notes. The Company will deliver executed or true and correct
copies of each amendment, waiver or consent effected pursuant to the provisions
of this Section 17 to each holder of outstanding Notes promptly following the
date on which it is executed and delivered by, or receives the consent or
approval of, the requisite holders of Notes.
(b) Payment. The Company will not directly or indirectly pay or cause to
be paid any remuneration, whether by way of supplemental or additional interest,
fee or otherwise, or grant
-32-
any security, to any holder of Notes as consideration for or as an inducement to
the entering into by such holder of Notes of any waiver or amendment of any of
the terms and provisions hereof unless such remuneration is concurrently paid,
or security is concurrently granted, on the same terms, ratably to each holder
of Notes then outstanding even if such holder did not consent to such waiver or
amendment.
Section 17.3. Binding Effect, Etc. Any amendment or waiver consented to as
provided in this Section 17 applies equally to all holders of Notes and is
binding upon them and upon each future holder of any Note and upon the Company
without regard to whether such Note has been marked to indicate such amendment
or waiver. No such amendment or waiver will extend to or affect any obligation,
covenant, agreement, Default or Event of Default not expressly amended or waived
or impair any right consequent thereon. No course of dealing between the Company
and the holder of any Note nor any delay in exercising any rights hereunder or
under any Note shall operate as a waiver of any rights of any holder of such
Note. As used herein, the term "this Agreement" and references thereto shall
mean this Agreement as it may from time to time be amended or supplemented.
Section 17.4. Notes Held by Company, Etc. Solely for the purpose of
determining whether the holders of the requisite percentage of the aggregate
principal amount of Notes then outstanding approved or consented to any
amendment, waiver or consent to be given under this Agreement or the Notes, or
have directed the taking of any action provided herein or in the Notes to be
taken upon the direction of the holders of a specified percentage of the
aggregate principal amount of Notes then outstanding, Notes directly or
indirectly owned by the Company or any of its Affiliates shall be deemed not to
be outstanding.
Section 18. Notices.
All notices and communications provided for hereunder shall be in writing
and sent (a) by telefacsimile if the sender on the same day sends a confirming
copy of such notice by a recognized overnight delivery service (charges
prepaid), or (b) by a recognized overnight delivery service (with charges
prepaid). Any such notice must be sent:
(i) if to a Purchaser or such Purchaser's nominee, to such
Purchaser or such Purchaser's nominee at the address specified for such
communications in Schedule A to this Agreement, or at such other address
as such Purchaser or such Purchaser's nominee shall have specified to the
Company in writing pursuant to this Section 18;
(ii) if to any other holder of any Note, to such holder at such
address as such other holder shall have specified to the Company in
writing pursuant to this Section 18; or
(iii) if to the Company, to the Company at its address set forth
at the beginning hereof to the attention of Chief Financial Officer, with
a copy to the General Counsel, or at such other address as the Company
shall have specified to the holder of each Note in writing.
-33-
Notices under this Section 18 will be deemed given only when actually received.
Section 19. Reproduction of Documents.
This Agreement and all documents relating thereto, including, without
limitation, (a) consents, waivers and modifications that may hereafter be
executed, (b) documents received by each Purchaser at the Closing (except the
Notes themselves), and (c) financial statements, certificates and other
information previously or hereafter furnished to each Purchaser, may be
reproduced by such Purchaser by any photographic, photostatic, microfilm,
microcard, miniature photographic or other similar process and such Purchaser
may destroy any original document so reproduced. The Company agrees and
stipulates that, to the extent permitted by applicable law, any such
reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding (whether or not the original is in
existence and whether or not such reproduction was made by such Purchaser in the
regular course of business) and any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence. This
Section 19 shall not prohibit the Company or any other holder of Notes from
contesting any such reproduction to the same extent that it could contest the
original, or from introducing evidence to demonstrate the inaccuracy of any such
reproduction.
Section 20. Confidential Information.
For the purposes of this Section 20, "Confidential Information" means all
information furnished by the Company to the Purchasers on or prior to the
Closing and any other information delivered to any Purchaser by or on behalf of
the Company or any Subsidiary in connection with the transactions contemplated
by or otherwise pursuant to this Agreement that is proprietary in nature and
that was clearly marked or labeled or otherwise adequately identified when
received by such Purchaser as being confidential information of the Company or
such Subsidiary, provided that such term does not include information that (a)
was publicly known or otherwise known to such Purchaser prior to the time of
such disclosure, (b) subsequently becomes publicly known through no act or
omission by such Purchaser or any Person acting on such Purchaser's behalf, (c)
otherwise becomes known to such Purchaser other than through disclosure by the
Company or any Subsidiary or (d) constitutes financial statements delivered to
such Purchaser under Section 7.1 that are otherwise publicly available. Each
Purchaser will maintain the confidentiality of such Confidential Information in
accordance with procedures adopted by such Purchaser in good faith to protect
confidential information of third parties delivered to such Purchaser, provided
that such Purchaser may deliver or disclose Confidential Information to (i) such
Purchaser's directors, trustees, officers, employees, agents, attorneys and
Affiliates (to the extent such disclosure reasonably relates to the
administration of the investment represented by such Purchaser's Notes), (ii)
such Purchaser's financial advisors and other professional advisors who agree to
hold confidential the Confidential Information substantially in accordance with
the terms of this Section 20, (iii) any other holder of any Note, (iv) any
Institutional Investor to which such Purchaser sells or offers to sell such Note
or any part thereof or any participation therein (if such Person has agreed in
writing prior to its receipt of such Confidential Information to be bound by the
provisions of this Section 20), (v) any Person from which such Purchaser offers
to purchase any security of the Company (if such Person has agreed in writing
prior to its receipt of such Confidential Information to be bound by the
provisions of this
-00-
Xxxxxxx 00), (xx) any federal or state regulatory authority having jurisdiction
over such Purchaser, (vii) the National Association of Insurance Commissioners
or any similar organization, or any nationally recognized rating agency that
requires access to information about such Purchaser's investment portfolio, or
(viii) any other Person to which such delivery or disclosure may be necessary or
appropriate (w) to effect compliance with any law, rule, regulation or order
applicable to such Purchaser, (x) in response to any subpoena or other legal
process, (y) in connection with any litigation to which such Purchaser is a
party or (z) if an Event of Default has occurred and is continuing, to the
extent such Purchaser may reasonably determine such delivery and disclosure to
be necessary or appropriate in the enforcement or for the protection of the
rights and remedies under such Purchaser's Notes and this Agreement. Each holder
of a Note, by its acceptance of a Note, will be deemed to have agreed to be
bound by and to be entitled to the benefits of this Section 20 as though it were
a party to this Agreement. On reasonable request by the Company in connection
with the delivery to any holder of a Note of information required to be
delivered to such holder under this Agreement or requested by such holder (other
than a holder that is a party to this Agreement or its nominee), such holder
will enter into an agreement with the Company embodying the provisions of this
Section 20.
Section 21. Substitution of Purchaser.
Each Purchaser shall have the right to substitute any one of such
Purchaser's Affiliates as the purchaser of the Notes that such Purchaser has
agreed to purchase hereunder, by written notice to the Company, which notice
shall be signed by both such Purchaser and such Purchaser's Affiliate, shall
contain such Affiliate's agreement to be bound by this Agreement and shall
contain a confirmation by such Affiliate of the accuracy with respect to it of
the representations set forth in Section 6. Upon receipt of such notice,
wherever the word "Purchaser" is used in this Agreement (other than in this
Section 21), such word shall be deemed to refer to such Affiliate in lieu of
such Purchaser. In the event that such Affiliate is so substituted as a
purchaser hereunder and such Affiliate thereafter transfers to such Purchaser
all of the Notes then held by such Affiliate, upon receipt by the Company of
notice of such transfer, wherever the word "Purchaser" is used in this Agreement
(other than in this Section 21), such word shall no longer be deemed to refer to
such Affiliate, but shall refer to such Purchaser, and such Purchaser shall have
all the rights of an original holder of the Notes under this Agreement.
Section 22. Miscellaneous.
Section 22.1. Successors and Assigns. All covenants and other agreements
contained in this Agreement by or on behalf of any of the parties hereto bind
and inure to the benefit of their respective successors and assigns (including,
without limitation, any subsequent holder of a Note) whether so expressed or
not.
Section 22.2. Payments Due on Non-Business Days. Anything in this
Agreement or the Notes to the contrary notwithstanding, any payment of principal
of or Make-Whole Amount or interest on any Note that is due on a date other than
a Business Day shall be made on the next succeeding Business Day without
including the additional days elapsed in the computation of the interest payable
on such next succeeding Business Day.
-35-
Section 22.3. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall (to the full extent permitted by law)
not invalidate or render unenforceable such provision in any other jurisdiction.
Section 22.4. Construction. Each covenant contained herein shall be
construed (absent express provision to the contrary) as being independent of
each other covenant contained herein, so that compliance with any one covenant
shall not (absent such an express contrary provision) be deemed to excuse
compliance with any other covenant. Where any provision herein refers to action
to be taken by any Person, or which such Person is prohibited from taking, such
provision shall be applicable whether such action is taken directly or
indirectly by such Person.
Section 22.5. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be an original but all of which together
shall constitute one instrument. Each counterpart may consist of a number of
copies hereof, each signed by less than all, but together signed by all, of the
parties hereto.
Section 22.6. Governing Law. This Agreement shall be construed and
enforced in accordance with, and the rights of the parties shall be governed by,
the law of the State of New York excluding choice-of-law principles of the law
of such State that would require the application of the laws of a jurisdiction
other than such State.
* * * * *
-36-
The execution hereof by the Purchasers shall constitute a contract among
the Company and the Purchasers for the uses and purposes hereinabove set forth.
This Agreement may be executed in any number of counterparts, each executed
counterpart constituting an original but all together only one agreement.
Very truly yours,
ProQuest Company
By
---------------------------------
Name:
---------------------------
Title:
--------------------------
-37-
Accepted as of the date first written above.
[Variation]
By
---------------------------------
Name:
---------------------------
Title:
--------------------------
-38-
INFORMATION RELATING TO PURCHASERS
Principal Amount
of Notes to be
Name of Purchasers Purchased
RELIASTAR LIFE INSURANCE COMPANY $20,000,000
c/o ING Investment Management LLC
000 Xxxxxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxxx Xxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
"ProQuest Company, 5.45% Senior Notes due October 1, 2012, PPN 74346P A* 3,
principal, premium or interest") to:
BK of NYC
IOC 566 - INT'L CUSTODY
ABA #000000000
Account Number 187035 and PPN 74346P A* 3
Ref: ReliaStar Life Insurance Company
Notices
All notices and communications to be addressed as first provided above with a
copy to:
ING Investment Management LLC
0000 Xxxxxx Xxxxx Xxxx, XX, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Private Placements
Facsimile: (000) 000-0000
Notices with respect to payments and written confirmation of each such payment,
to be addressed:
ING Investment Management LLC
0000 Xxxxxx Xxxxx Xxxx, XX, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Securities Accounting
Facsimile: (000) 000-0000
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
Schedule A
(to Note Purchase Agreement)
Principal Amount
of Notes to be
Name of Purchasers Purchased
ING LIFE INSURANCE AND ANNUITY COMPANY $12,000,000
c/o ING Investment Management LLC
000 Xxxxxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxxx Xxxxxxx
Phone Number: (000) 000-0000
Fax Number: (000) 000-0000
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
"ProQuest Company, 5.45% Senior Notes due October 1, 2012, PPN 74346P A* 3,
principal, premium or interest") to:
The Bank of New York
ABA #000000000
BNF: IOC566
Attention: P&I Department
Ref: ING Life Insurance & Annuity Company
Account Number 216101 and PPN 74346P A* 3
Notices
All notices and communications to be addressed as first provided above with a
copy to:
ING Investment Management LLC
0000 Xxxxxx Xxxxx Xxxx, XX, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Private Placements
Facsimile: (000) 000-0000
Notices with respect to payments and written confirmation of each such payment,
to be addressed:
ING Investment Management LLC
0000 Xxxxxx Xxxxx Xxxx, XX, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Securities Accounting
Facsimile: (000) 000-0000
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
-2-
Principal Amount
of Notes to be
Name of Purchasers Purchased
METROPOLITAN LIFE INSURANCE COMPANY $16,000,000
Private Placements Xxxx
00 Xxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000-0000
Attention: Director
Fax Number: (000) 000-0000
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
"ProQuest Company, 5.45% Senior Notes due October 1, 2012, PPN 74346P A* 3,
principal, premium or interest") to:
JPMorgan Chase Bank
ABA #000000000
Account Number 002-2-410591
for credit to: Metropolitan Life Insurance Company
Notices
All notices and communications to be addressed as first provided above, with
copies to:
Metropolitan Life Insurance Company
00 Xxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000-0000
Attention: Chief Counsel - Securities Investments (PRIV)
Fax Number: (000) 000-0000
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
-3-
Principal Amount
of Notes to be
Name of Purchasers Purchased
METROPOLITAN INSURANCE AND ANNUITY $4,000,000
COMPANY
c/o Metropolitan Life Insurance Company
Private Placements Xxxx
00 Xxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000-0000
Attention: Director
Fax Number: (000) 000-0000
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
"ProQuest Company, 5.45% Senior Notes due October 1, 2012, PPN 74346P A* 3,
principal, premium or interest") to:
JPMorgan Chase Bank
ABA #000000000
Account Number 000-0-000000
for credit to: Metropolitan Insurance and Annuity Company
Notices
All notices and communications to be addressed as first provided above, with
copies to:
Metropolitan Insurance and Annuity Company
c/o Metropolitan Life Insurance Company
00 Xxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000-0000
Attention: Chief Counsel - Securities Investments (PRIV)
Fax Number: (000) 000-0000
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
-4-
Principal Amount
of Notes to be
Name of Purchasers Purchased
TEACHERS INSURANCE AND ANNUITY $20,000,000
ASSOCIATION OF AMERICA
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Payments
All payments on or in respect of the Notes shall be made in immediately
available funds at the opening of business on the due date by electronic funds
transfer through the Automated Clearing House System to:
Chase Manhattan Bank
ABA #000-000-000
New York, New York
For deposit to the Account of: Teachers Insurance and Annuity
Association of America
Account Number 000-0-000000
For further credit to the TIAA Account Number: G07040
On order of ProQuest Company
Reference: ProQuest Company, 5.45% Senior Notes due October 1, 2012,
PPN 74346P A* 3/P&I Breakdown
Notices
Contemporaneous with the above electronic funds transfer, advice setting forth
(1) the full name, private placement number and interest rate of the Notes; (2)
allocation of payment between principal, interest, premium and any special
payment; and (3) name and address of Bank (or Trustee) from which wire transfer
was sent, shall be delivered, mailed or faxed to:
Teachers Insurance and Annuity Association of America
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Securities Accounting Division
Telephone: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Teachers Insurance and Annuity Association of America
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxx Xxxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
-5-
All other notices and communications shall be delivered or mailed to:
Teachers Insurance and Annuity Association of America
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Securities Division, Private Placements
Telecopy No.: (000) 000-0000
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
-6-
Principal Amount
of Notes to be
Name of Purchasers Purchased
THE TRAVELERS INSURANCE COMPANY $9,600,000
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Attention: Xxxxxxx Xxxxxxxxxx, 0xx Xxxxx
Facsimile: 000-000-0000
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
"ProQuest Company, 5.45% Senior Notes due October 1, 2012, PPN 74346P A* 3,
principal, premium or interest") to:
The Travelers Insurance Company - Consolidated Private Placement
Account No. 000-0-000000
JPMorgan Chase Bank
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
ABA #000000000
Notices
All notices and communications to be addressed as first provided above, except
notices with respect to payment and written confirmation of each such payment,
to be addressed:
The Travelers Insurance Company
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Attention: Cashier, 5th Floor
Facsimile: 000-000-0000
Name of Nominee in which Notes are to be issued: TRAL & CO.
Taxpayer I.D. Number: 00-0000000 (a Connecticut corporation)
-7-
Principal Amount
of Notes to be
Name of Purchasers Purchased
THE TRAVELERS INSURANCE COMPANY, $3,900,000
FOR ONE OF ITS SEPARATE ACCOUNTS
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Attention: Xxxxxxx Xxxxxxxxxx, 0xx Xxxxx
Telefacsimile: (000) 000-0000
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
"ProQuest Company, 5.45% Senior Notes due October 1, 2012, PPN 74346P A* 3,
principal, premium or interest") to:
The Travelers Insurance Company -- Separate Account TLAC
Account No. 000-0-000000
JPMorgan Chase Bank
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
ABA #000000000
Notices
All notices and communications to be addressed as first provided above, except
notices with respect to payment and written confirmation of each such payment,
to be addressed:
The Travelers Insurance Company
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Attention: Cashier, 5th Floor
Telefacsimile: (000) 000-0000
Name of Nominee in which Notes are to be issued: TRAL & CO
Taxpayer I.D. Number: 00-0000000
-8-
Principal Amount
of Notes to be
Name of Purchasers Purchased
THE TRAVELERS INSURANCE COMPANY, $1,300,000
FOR ONE OF ITS SEPARATE ACCOUNTS
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Attention: Xxxxxxx Xxxxxxxxxx, 0xx Xxxxx
Telefacsimile: (000) 000-0000
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
"ProQuest Company, 5.45% Senior Notes due October 1, 2012, PPN 74346P A* 3,
principal, premium or interest") to:
The Travelers Insurance Company -- Separate Account SMGA
Account No. 000-0-000000
JPMorgan Chase Bank
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
ABA #000000000
Notices
All notices and communications to be addressed as first provided above, except
notices with respect to payment and written confirmation of each such payment,
to be addressed:
The Travelers Insurance Company
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Attention: Cashier, 5th Floor
Telefacsimile: (000) 000-0000
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
-9-
Principal Amount
of Notes to be
Name of Purchasers Purchased
NATIONAL BENEFIT LIFE INSURANCE COMPANY $400,000
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Attention: Xxxxxxx Xxxxxxxxxx, 0xx Xxxxx
Telefacsimile: (000) 000-0000
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
"ProQuest Company, 5.45% Senior Notes due October 1, 2012, PPN 74346P A* 3,
principal, premium or interest") to:
National Benefit Life Insurance Company Account No. 000-0-000000
JPMorgan Chase Bank
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
ABA #000000000
Notices
All notices and communications to be addressed as first provided above, except
notices with respect to payment and written confirmation of each such payment,
to be addressed:
National Benefit Life Insurance Company
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Attention: Cashier, 5th Floor
Telefacsimile: (000) 000-0000
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
-10-
Principal Amount
of Notes to be
Name of Purchasers Purchased
PRIMERICA LIFE INSURANCE COMPANY $800,000
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Attention: Xxxxxxx Xxxxxxxxxx, 0xx Xxxxx
Telefacsimile: (000) 000-0000
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
"ProQuest Company, 5.45% Senior Notes due October 1, 2012, PPN 74346P A* 3,
principal, premium or interest") to:
Primerica Life Insurance Company Account No. 000-0-000000
JPMorgan Chase Bank
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
ABA #000000000
Notices
All notices and communications to be addressed as first provided above, except
notices with respect to payment and written confirmation of each such payment,
to be addressed:
Primerica Life Insurance Company
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Attention: Cashier, 5th Floor
Telefacsimile: (000) 000-0000
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
-11-
Principal Amount
of Notes to be
Name of Purchasers Purchased
PACIFIC LIFE INSURANCE COMPANY $5,000,000
000 Xxxxxxx Xxxxxx Xxxxx $5,000,000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000-0000 $1,000,000
Attention: Securities Department $1,000,000
Telefacsimile: (000) 000-0000 $1,000,000
$1,000,000
$1,000,000
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
"ProQuest Company, 5.45% Senior Notes due October 1, 2012, PPN 74346P A* 3,
principal, premium or interest") to:
Boston Safe Deposit and Trust Company
ABA #0000-0000-0/BOS SAFE DEP
DDA 125261
Attention: MBS Income CC: 1253
A/C Name: Pacific Life General Account/PLCF 0000000
Regarding: Security Description and PPN
Notices
All notices and communications to be addressed as first provided above, except
notices with respect to payments and written confirmation of each such payment,
to be addressed:
Mellon Trust
Attention: Pacific Life Accounting Team
Three Mellon Bank Center
AIM #153-3610
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Telefacsimile: (000) 000-0000
and
Pacific Life Insurance Company
Attention: Securities Administration - Cash Team
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000-0000
Telefacsimile: (000) 000-0000
Name of Nominee in which Notes are to be issued: Mac & Co.
General Taxpayer I.D. Number: 00-0000000
-12-
Principal Amount
of Notes to be
Name of Purchasers Purchased
XXXX XXXXXXX LIFE INSURANCE COMPANY $10,250,000
Xxxx Xxxxxxx Place $ 1,000,000
000 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Payments
All payments on account of the Notes or other obligations in accordance with the
provisions thereof shall be made by bank wire transfer of immediately available
funds for credit, not later than 12 noon, Boston time, to:
Fleet Boston
ABA #000000000
Xxxxxx, Xxxxxxxxxxxxx 00000
Account of: Xxxx Xxxxxxx Life Insurance Company
Private Placement Collection Account
Account Number 541-55417
On Order of: ProQuest Company and PPN 74346P A* 3
ProQuest Company, 5.45% Senior Notes due October 1, 2012
Notices
Contemporaneous with the above wire transfer, advice setting forth (1) the full
name, interest rate and maturity date of the Notes or other obligations; (2)
allocation of payment between principal and interest and any special payment;
and (3) name and address of Bank (or Trustee) from which wire transfer was sent,
shall be faxed and mailed to:
Xxxx Xxxxxxx Life Insurance Company
000 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Investment Accounting Division, B-3
Fax: (000) 000-0000
and
Xxxx Xxxxxxx Life Insurance Company
000 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: X. Xxxxxxx/X. Xxxxx, T-57
Fax: (000) 000-0000
-13-
All notices with respect to prepayments, both scheduled and unscheduled, whether
partial or in full, and notice of maturity shall also be faxed and mailed as set
forth immediately above.
All other communications which shall include, but not be limited to, financial
statements and certificates of compliance with financial covenants, shall be
faxed and mailed to:
Xxxx Xxxxxxx Life Insurance Company
000 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Bond and Corporate Finance Group, T-57
Fax: (000) 000-0000
A copy of any notices relating to change in issuer's name, address or principal
place of business or location of collateral and a copy of any legal opinions
shall be faxed and mailed to:
Xxxx Xxxxxxx Life Insurance Company
000 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Investment Law Division, T-30
Fax: (000) 000-0000
Name in which Notes are to be issued: Xxxx Xxxxxxx Life Insurance Company
Taxpayer I.D. Number: 00-0000000
-14-
Principal Amount
of Notes to be
Name of Purchasers Purchased
XXXX XXXXXXX VARIABLE LIFE INSURANCE COMPANY $750,000
Xxxx Xxxxxxx Place
000 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Payments
All payments on account of the Notes or other obligations in accordance with the
provisions thereof shall be made by bank wire transfer of immediately available
funds for credit, not later than 12 noon, Boston time, to:
Fleet Boston
ABA #000000000
Xxxxxx, Xxxxxxxxxxxxx 00000
Account of: Xxxx Xxxxxxx Life Insurance Company
Private Placement Collection Account
Account Number 541-55417
On Order of: ProQuest Company and PPN Number 74346P A* 3
ProQuest Company, 5.45% Senior Notes due October 1, 2012
Notices
Contemporaneous with the above wire transfer, advice setting forth (1) the full
name, interest rate and maturity date of the Notes or other obligations; (2)
allocation of payment between principal and interest and any special payment;
and (3) name and address of Bank (or Trustee) from which wire transfer was sent,
shall be faxed and mailed to:
Xxxx Xxxxxxx Variable Life Insurance Company
000 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Investment Accounting Division, B-3
Fax: (000) 000-0000
and
Xxxx Xxxxxxx Life Insurance Company
000 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: X. Xxxxxxx/X. Xxxxx, T-57
Fax: (000) 000-0000
-15-
All notices with respect to prepayments, both scheduled and unscheduled, whether
partial or in full, and notice of maturity shall also be faxed and mailed as set
forth immediately above.
All other communications which shall include, but not be limited to, financial
statements and certificates of compliance with financial covenants, shall be
faxed and mailed to:
Xxxx Xxxxxxx Life Insurance Company
000 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Bond and Corporate Finance Group, T-57
Fax: (000) 000-0000
A copy of any notices relating to change in issuer's name, address or principal
place of business or location of collateral and a copy of any legal opinions
shall be faxed and mailed to:
Xxxx Xxxxxxx Life Insurance Company
000 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Investment Law Division, T-30
Fax: (000) 000-0000
Name in which Notes are to be issued: Xxxx Xxxxxxx Variable Life Insurance
Company
Taxpayer I.D. Number: 00-0000000
-16-
Principal Amount
of Notes to be
Name of Purchasers Purchased
INVESTORS PARTNER LIFE INSURANCE COMPANY $250,000
Xxxx Xxxxxxx Place
000 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Payments
All payments on account of the Notes or other obligations in accordance with the
provisions thereof shall be made by bank wire transfer of immediately available
funds for credit, not later than 12 noon, Boston time, to:
Fleet Boston
ABA #000000000
Xxxxxx, Xxxxxxxxxxxxx 00000
Account of: Xxxx Xxxxxxx Life Insurance Company
Private Placement Collection Account
Account Number 541-55417
On Order of: ProQuest Company and PPN Number 74346P A* 3
ProQuest Company, 5.45% Senior Notes due October 1, 2012
Notices
Contemporaneous with the above wire transfer, advice setting forth (1) the full
name, interest rate and maturity date of the Notes or other obligations; (2)
allocation of payment between principal and interest and any special payment;
and (3) name and address of Bank (or Trustee) from which wire transfer was sent,
shall be faxed and mailed to:
Investors Partner Life Insurance Company
000 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Investment Accounting Division, B-3
Fax: (000)000-0000
and
Xxxx Xxxxxxx Life Insurance Company
000 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: X. Xxxxxxx/X. Xxxxx, T-57
Fax: (000)000-0000
-17-
All notices with respect to prepayments, both scheduled and unscheduled, whether
partial or in full, and notice of maturity shall also be faxed and mailed as set
forth immediately above.
All other communications which shall include, but not be limited to, financial
statements and certificates of compliance with financial covenants, shall be
faxed and mailed to:
Xxxx Xxxxxxx Life Insurance Company
000 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Bond and Corporate Finance Group, T-57
Fax: (000) 000-0000
A copy of any notices relating to change in issuer's name, address or principal
place of business or location of collateral and a copy of any legal opinions
shall be faxed and mailed to:
Xxxx Xxxxxxx Life Insurance Company
000 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Investment Law Division, T-30
Fax: (000)000-0000
Name in which Notes are to be issued: Investors Partner Life Insurance Company
Taxpayer I.D. Number: 00-0000000
-18-
Principal Amount
of Notes to be
Name of Purchasers Purchased
XXXX XXXXXXX INSURANCE COMPANY OF VERMONT $250,000
Xxxx Xxxxxxx Place
000 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Payments
All payments on account of the Notes or other obligations in accordance with the
provisions thereof shall be made by bank wire transfer of immediately available
funds for credit, not later than 12 noon, Boston time, to:
Deutsche Bank Trust Company Americas
New York, New York
ABA #000000000
Account Number: 00000000
Account of: Xxxx Xxxxxxx Insurance Company of Vermont
On Order of: ProQuest Company and PPN Number 74346P A* 3
ProQuest Company, 5.45% Senior Notes due October 1, 2012
Notices
Contemporaneous with the above wire transfer, advice setting forth (1) the full
name, interest rate and maturity date of the Notes or other obligations; (2)
allocation of payment between principal and interest and any special payment;
and (3) name and address of Bank (or Trustee) from which wire transfer was sent,
shall be faxed and mailed to:
Xxxx Xxxxxxx Insurance Company of Vermont
c/o Xxxx Xxxxxxx Life Insurance Company
000 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Investment Accounting Division, B-3
Fax: (000)000-0000
and
Xxxx Xxxxxxx Life Insurance Company
000 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: X. Xxxxxxx/X. Xxxxx, T-57
Fax: (000) 000-0000
-19-
All notices with respect to prepayments, both scheduled and unscheduled, whether
partial or in full, and notice of maturity shall also be faxed and mailed as set
forth immediately above.
All other communications which shall include, but not be limited to, financial
statements and certificates of compliance with financial covenants, shall be
faxed and mailed to:
Xxxx Xxxxxxx Insurance Company of Vermont
c/o Xxxx Xxxxxxx Life Insurance Company
000 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Bond and Corporate Finance Group, T-57
Fax: (000)000-0000
A copy of any notices relating to change in issuer's name, address or principal
place of business or location of collateral and a copy of any legal opinions
shall be faxed and mailed to:
Xxxx Xxxxxxx Insurance Company of Vermont
c/o Xxxx Xxxxxxx Life Insurance Company
000 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Investment Law Division, T-30
Fax: (000)000-0000
Name in which Notes are to be issued: Xxxx Xxxxxxx Insurance Company of Vermont
Taxpayer I.D. Number: 00-0000000
-20-
Principal Amount
of Notes to be
Name of Purchasers Purchased
PRINCIPAL LIFE INSURANCE COMPANY $5,500,000
c/o Principal Capital Management, LLC $1,500,000
000 Xxxxx Xxxxxx x0,000,000
Xxx Xxxxxx, Xxxx 00000-0000 $1,000,000
$1,000,000
Payments
All payments on or in respect of the Notes to be made by wire transfer of
immediately available funds (identifying each payment as "ProQuest Company,
5.45% Senior Notes due October 1, 2012, PPN 74346P A* 3, principal, premium or
interest") to:
ABA #000000000
Xxxxx Fargo Bank Iowa, N.A.
7th and Xxxxxx Xxxxxxx
Xxx Xxxxxx, Xxxx 00000
For credit to Principal Life Insurance Company
Account Xx. 0000000000
XXX XXXXX (X) B0065364()
With sufficient information (including interest rate, maturity date,
interest amount, principal amount and premium amount, if applicable) to
identify the source and application of such funds.
All notices with respect to payments to:
Principal Capital Income Investors, LLC
000 Xxxxx Xxxxxx
Xxx Xxxxxx, Xxxx 00000-0000
Attention: Investment Accounting - Securities
Telefacsimile: (000) 000-0000
Confirmation: (000) 000-0000
All other notices and communications to:
Principal Capital Income Investors, LLC
000 Xxxxx Xxxxxx
Xxx Xxxxxx, Xxxx 00000-0000
Attention: Investment Department - Securities
Telefacsimile: (000) 000-0000
Confirmation: (000) 000-0000
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
-21-
Principal Amount
of Notes to be
Name of Purchasers Purchased
JEFFERSON-PILOT LIFE INSURANCE COMPANY $8,000,000
Xxxx Xxxxxx Xxx 00000
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Securities Administration
Telefacsimile: (000) 000-0000
Overnight Mail Address:
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Securities Administration
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
"ProQuest Company, 5.45% Senior Notes due October 1, 2012, PPN 74346P A* 3,
principal, premium or interest") to
Jefferson-Pilot Life Insurance Company
x/x Xxx Xxxx xx Xxx Xxxx
XXX #021 000 018 BNF: IOC566
Custody Account 186100
Attention: P&I Department
Notices
All notices and communications, including notices with respect to payments on or
in respect of the Notes and written confirmation of each such payment, to be
addressed as first provided above.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
-22-
Principal Amount
of Notes to be
Name of Purchasers Purchased
REASSURE AMERICA LIFE INSURANCE CO. $3,500,000
c/o Swiss Re Asset Management
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
"ProQuest Company, 5.45% Senior Notes due October 1, 2012, PPN 74346P A* 3,
principal, premium or interest") to:
The Bank of New York
ABA #000000000
for credit to: Account No. GLA111566
Account Name: Institutional Custody-Insurance Division
For Further Credit: 313552
Account Name: Reassure America Life Insurance Co.
Notices
All notices and communications, including notices with respect to payments on or
in respect of the Notes and written confirmation of each such payment, to be
addressed to:
Reassure America Life Insurance Co.
c/o Swiss Re Asset Management
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Jun Falcon
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
-23-
Principal Amount
of Notes to be
Name of Purchasers Purchased
SWISS RE LIFE & HEALTH AMERICA, INC. $3,500,000
c/o Swiss Re Asset Management
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
"ProQuest Company, 5.45% Senior Notes due October 1, 2012, PPN 74346P A* 3,
principal, premium or interest") to:
The Bank of New York
ABA #000000000
for credit to: Account No. GLA111566
Account Name: Institutional Custody-Insurance Division
For Further Credit: 214989
Account Name: Swiss Re Life & Health America, Inc.
Notices
All notices and communications, including notices with respect to payments on or
in respect of the Notes and written confirmation of each such payment, to be
addressed to:
Swiss Re Life & Health America, Inc.
c/o Swiss Re Asset Management
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Jun Falcon
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
-24-
Principal Amount
of Notes to be
Name of Purchasers Purchased
MINNESOTA LIFE INSURANCE COMPANY $4,000,000
000 Xxxxxx Xxxxxx Xxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Advantus Capital Management, Inc.
Telefacsimile: (000) 000-0000
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
"ProQuest Company, 5.45% Senior Notes due October 1, 2012, PPN 74346P A* 3,
principal, premium or interest") to:
Deutsche Bank Trust Company Americas
ABA #000-000-000
DDA #50-189518
Ref: Issuer, Rate, Maturity, CUSIP/PPN, P&I Breakdown
Notices
All notices and communications, including notices with respect to payments and
written confirmation of each such payment, to be addressed as first provided
above.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
-25-
Principal Amount
of Notes to be
Name of Purchasers Purchased
FARM BUREAU LIFE INSURANCE COMPANY $2,000,000
OF MICHIGAN
c/o Advantus Capital Management, Inc.
000 Xxxxxx Xxxxxx Xxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Client Administrator
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
"ProQuest Company, 5.45% Senior Notes due October 1, 2012, PPN 74346P A* 3,
principal, premium or interest") to:
Comerica Bank
Detroit, Michigan
ABA #000-000-000
For credit to: Trust Operation -- Fixed Income
Xxxx Xxxx Xxxxxx 00000
Account Number 21585-98530
For further credit to: Farm Bureau Life Insurance Company of Michigan
Account Number: 011000312124
Notices
All notices and communications, including notices with respect to payments and
written confirmation of each such payment, to be addressed as first provided
above.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
-26-
Principal Amount
of Notes to be
Name of Purchasers Purchased
WEST AMERICAN INSURANCE COMPANY $2,500,000
c/o Ohio Casulty Group
0000 Xxxxxx Xxxx
Xxxxxxxxx, Xxxx 00000
Attention: Investment Department, Private Placements
Telefacsimile: (000) 000-0000
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
"ProQuest Company, 5.45% Senior Notes due October 1, 2012, PPN 74346P A* 3,
principal, premium or interest") to:
CHASE NYC/CUST
ABA #021 000 021
A/C #000-0-000000
Attn: Income Collection
FAO: A/C # G 06426 A/C Name: West American Insurance Company
Ref: security description, coupon, maturity, PPN #, identify principal
or interest
Notices
All notices and communications to be addressed as first provided above, except
notices with respect to payments and written confirmation of each such payment,
to be addressed as follows:
Ohio Casualty Group
Xxxx X. Xxxxxxxxx, Asset Administration
0000 Xxxxxx Xxxx
Xxxxxxxxx, Xxxx 00000-0000
Account: West American Insurance Company
Telephone: (000) 000-0000
Fax: (000) 000-0000
and also to:
Chase Manhattan Bank
Xxxx Xxxxxx, Client Service Representative
Specialty Markets
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
Name of Nominee in which Notes are to be issued: Xxxx & Co.
Taxpayer I.D. Number: 00-0000000
-27-
Principal Amount
of Notes to be
Name of Purchasers Purchased
SECURITY FINANCIAL LIFE INSURANCE CO. $1,000,000
0000 Xxxx Xxxx Xxxx
P. O. Box 82248
Lincoln, Nebraska 68501-2248
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
"ProQuest Company, 5.45% Senior Notes due October 1, 2012, PPN 74346P A* 3,
principal, premium or interest") to:
Xxxxx Fargo Bank, Nebraska, N.A.
1248 "O" Street
Lincoln, Nebraska 68508
ABA #000-000-000
Account of: Security Financial Life
Account Number 00-00-000-000
Notices
All notices and communications to be addressed as first provided above, except
notices with respect to payments and written confirmation of each such payment
to be addressed:
Security Financial Life Insurance Co.
0000 Xxxx Xxxx Xxxx
P. O. Xxx 00000
Xxxxxxx, Xxxxxxxx 00000
Attention: Investment Division
Fax: (000) 000-0000
Phone: (000) 000-0000
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
-28-
DEFINED TERMS
As used herein, the following terms have the respective meanings set
forth below or set forth in the Section hereof following such term:
"Affiliate" means, at any time, and with respect to any Person, (a) any
other Person that at such time directly or indirectly through one or more
intermediaries Controls, or is Controlled by, or is under common Control with,
such first Person, and (b) any Person beneficially owning or holding, directly
or indirectly, 10% or more of any class of voting or equity interests of the
Company or any Restricted Subsidiary or any Person of which the Company and its
Restricted Subsidiaries beneficially own or hold, in the aggregate, directly or
indirectly, 10% or more of any class of voting or equity interests. As used in
this definition, "Control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities, by contract or
otherwise. Unless the context otherwise clearly requires, any reference to an
"Affiliate" is a reference to an Affiliate of the Company.
"Bank Credit Agreement" shall mean that certain Credit Agreement dated as
of October 3, 2002 by and among the Company, Bank of America, N.A., as
Administrative Agent and lender, and the other financial institutions which are
party thereto, as such agreement may be amended, renewed or restated and any
successor credit facility which constitutes the primary bank credit facility of
the Company.
"Business Day" means (a) for the purposes of Section 8.6 only, any day
other than a Saturday, a Sunday or a day on which commercial banks in New York
City are required or authorized to be closed, and (b) for the purposes of any
other provision of this Agreement, any day other than a Saturday, a Sunday or a
day on which commercial banks in Ann Arbor, Michigan or New York, New York are
required or authorized to be closed.
"Capital Lease" means, at any time, a lease with respect to which the
lessee is required concurrently to recognize the acquisition of an asset and the
incurrence of a liability in accordance with GAAP.
"Capital Lease Obligation" means, with respect to any Person and a
Capital Lease, the amount of the obligation of such Person as the lessee under
such Capital Lease which would, in accordance with GAAP, appear as a liability
on a balance sheet of such Person.
"Closing" is defined in Section 3.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, and the rules and regulations promulgated thereunder from time to time.
"Company" means ProQuest Company, a Delaware corporation.
"Confidential Information" is defined in Section 20.
"Consolidated Adjusted Net Worth" shall mean the consolidated
stockholder's equity of the Company and its Restricted Subsidiaries, as
determined in accordance with GAAP, less the sum of (i) minority interests in
stock and surplus of Restricted Subsidiaries and (ii) the book value of
Restricted Investments in excess of 20% of stockholder's equity.
"Consolidated Debt" means the total amount of all Debt of the Company and
its Restricted Subsidiaries determined on a consolidated basis in accordance
with GAAP.
"Consolidated Net Income" shall mean, for any period, the net income (or
loss), before any extraordinary items, of the Company and its Restricted
Subsidiaries for such period (taken as a cumulative whole), as calculated in
accordance with GAAP.
"Consolidated Net Income Available for Fixed Charges" shall mean, with
respect to any period, the sum of (a) (i) Consolidated Net Income for such
period, (ii) income tax expense and Michigan single business tax or its
equivalent, as defined according to GAAP deducted in determining Consolidated
Net Income for such period, (iii) Fixed Charges deducted in determining
Consolidated Net Income for such period, and (iv) noncash charges (other than
amortization and depreciation expense) deducted in determining Consolidated Net
Income for such period, minus (b) noncash credits included in determining
Consolidated Net Income (excluding deferred income) for such period.
"Consolidated Total Assets" means, as of any date of determination, the
total amount of all assets of the Company and its Restricted Subsidiaries,
determined on a consolidated basis in accordance with GAAP.
"Debt" means, with respect to any Person, without duplication,
(a) its liabilities for borrowed money;
(b) its liabilities for the deferred purchase price of property
acquired by such Person (excluding accounts payable and other accrued
liabilities arising in the ordinary course of business but including,
without limitation, all liabilities created or arising under any
conditional sale or other title retention agreement with respect to any
such property);
(c) its Capital Lease Obligations;
(d) all liabilities for borrowed money secured by any Lien with
respect to any property owned by such Person (whether or not it has
assumed or otherwise become liable for such liabilities); and
(e) Guarantees of such Person with respect to liabilities of a
type described in any of clauses (a) through (d) hereof.
Debt of any Person shall include all obligations of such Person of the
character described in clauses (a) through (e) to the extent such Person remains
legally liable in respect thereof notwithstanding that any such obligation is
deemed to be extinguished under GAAP.
E-4.4(c)-2
"Default" means an event or condition the occurrence or existence of
which would, with the lapse of time or the giving of notice or both, become an
Event of Default.
"Default Rate" means, with respect to the Notes, that rate of interest
that is the greater of (i) 2% per annum above the rate of interest stated in
clause (a) of the first paragraph of the Notes or (ii) 2% over the rate of
interest publicly announced by Bank of America, N.A. in New York, New York as
its "base" or "prime" rate.
"EBITDA" shall mean, with respect to any period, the total of the
following calculated without duplication for the Company and its Restricted
Subsidiaries on a consolidated basis for such period: (a) Consolidated Net
Income for such period; plus (b) taxes deducted in determining Consolidated Net
Income for such period; plus (c) Interest Charges deducted in determining
Consolidated Net Income for such period; plus (d) amortization and depreciation
expense deducted in determining Consolidated Net Income for such period; plus
(e) other noncash charges deducted in determining Consolidated Net Income for
such period and not already deducted in accordance with clause (d) above
(including the cumulative effect of changes in accounting principles under GAAP
to the extent included in such noncash charges); minus (f) noncash credits
included in accordance with the definition of Consolidated Net Income (excluding
deferred income) for such period (including the cumulative effect of changes in
accounting principles under GAAP to the extent included in such noncash
credits).
"Environmental Laws" means any and all federal, state, local, and foreign
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses, agreements or governmental
restrictions relating to pollution and the protection of the environment or the
release of any materials into the environment, including but not limited to
those related to hazardous substances or wastes, air emissions and discharges to
waste or public systems.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the rules and regulations promulgated thereunder
from time to time in effect.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that is treated as a single employer together with the Company
under Section 414 of the Code.
"Event of Default" is defined in Section 11.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Excluded Sale and Leaseback Transaction" shall mean any sale or transfer
of property acquired by the Company or any Restricted Subsidiary after the date
of this Agreement to any Person within 540 days following the acquisition or
construction of such property by the Company or any Restricted Subsidiary if the
Company or a Restricted Subsidiary shall concurrently with such sale or
transfer, lease such property, as lessee.
E-4.4(c)-3
"Fair Market Value" means, at any time and with respect to any property,
the sale value of such property that would be realized in an arm's-length sale
at such time between an informed and willing buyer and an informed and willing
seller (neither being under a compulsion to buy or sell), as reasonably
determined in the good faith opinion of the Company's board of directors.
"Fixed Charge Coverage Ratio" means, at any time, the ratio of (a)
Consolidated Net Income Available for Fixed Charges for the period of four
consecutive fiscal quarters ending on, or most recently ended prior to, such
time to (b) Fixed Charges for such period.
"Fixed Charges" means, with respect to any period, the sum of (a)
Interest Charges for such period and (b) Rentals for such period included in the
Company's financial statements in accordance with GAAP.
"GAAP" means generally accepted accounting principles as in effect from
time to time in the United States of America.
"Governmental Authority" means
(a) the government of
(i) the United States of America or any state or other
political subdivision thereof, or
(ii) any jurisdiction in which the Company or any
Subsidiary conducts all or any part of its business, or which has
jurisdiction over any properties of the Company or any
Subsidiary, or
(b) any entity exercising executive, legislative, judicial,
regulatory or administrative functions of, or pertaining to, any such
government.
"Guaranty" means, with respect to any Person, any obligation (except the
endorsement in the ordinary course of business of negotiable instruments for
deposit or collection) of such Person guaranteeing or in effect guaranteeing any
Debt, dividend or other obligation of any other Person in any manner, whether
directly or indirectly, including (without limitation) obligations incurred
through an agreement, contingent or otherwise, by such Person:
(a) to purchase such Debt or obligation or any property
constituting security therefor primarily for the purpose of assuring the
owner of such Debt or obligation of the ability of any other Person to
make payment of the Debt or obligation;
(b) to advance or supply funds (i) for the purchase or payment
of such Debt or obligation, or (ii) to maintain any working capital or
other balance sheet condition or any income statement condition of any
other Person or otherwise to advance or make available funds for the
purchase or payment of such Debt or obligation;
E-4.4(c)-4
(c) to lease properties or to purchase properties or services
primarily for the purpose of assuring the owner of such Debt or
obligation of the ability of any other Person to make payment of the Debt
or obligation; or
(d) otherwise to assure the owner of such Debt or obligation
against loss in respect thereof.
In any computation of the Debt or other liabilities of the obligor under
any Guaranty, the Debt or other obligations that are the subject of such
Guaranty shall be assumed to be direct obligations of such obligor, provided
that the amount of such Debt outstanding for purposes of this Agreement shall
not exceed the maximum amount of Debt that is the subject of such Guaranty.
"Hazardous Material" means any and all pollutants, toxic or hazardous
wastes or any other substances that might pose a hazard to health or safety, the
removal of which may be required or the generation, manufacture, refining,
production, processing, treatment, storage, handling, transportation, transfer,
use, disposal, release, discharge, spillage, seepage, or filtration of which is
or shall be restricted, prohibited or penalized by any applicable law
(including, without limitation, asbestos, urea formaldehyde foam insulation and
polychlorinated biphenyls).
"holder" means, with respect to any Note, the Person in whose name such
Note is registered in the register maintained by the Company pursuant to Section
13.1.
"Institutional Investor" means (a) any original purchaser of a Note, (b)
any holder of more than $2,000,000 of the aggregate principal amount of the
Notes then outstanding, and (c) any bank, trust company, savings and loan
association or other financial institution, any pension plan, any investment
company, any insurance company, any broker or dealer, or any other similar
financial institution or entity, regardless of legal form.
"Interest Charges" means, with respect to any period, the sum (without
duplication) of the following (in each case, after eliminating all offsetting
debits and credits between the Company and its Restricted Subsidiaries and all
other items required to be eliminated in the course of the preparation of the
consolidated financial statements of the Company and its Restricted Subsidiaries
in accordance with GAAP): (a) all interest in respect of the Debt of the Company
and its Restricted Subsidiaries (including imputed interest on Capital Lease
Obligations) deducted in determining Consolidated Net Income for such period,
and (b) all debt discount and expense amortized or required to be amortized in
the determination of Consolidated Net Income for such period.
"Investments" shall mean all investments, in cash or by delivery of
property made, directly or indirectly in any Person, whether by acquisition of
shares of capital stock, Debt or other obligations or securities or by loan,
advance, capital contribution or otherwise.
"Lien" means, with respect to any Person, any mortgage, lien, pledge,
charge, security interest or other encumbrance, or any interest or title of any
vendor, lessor, lender or other secured party to or of such Person under any
conditional sale or other title retention agreement
E-4.4(c)-5
(other than an operating lease) or Capital Lease, upon or with respect to any
property or asset of such Person (including, in the case of stock, shareholder
agreements, voting trust agreements and all similar arrangements).
"Make-Whole Amount" shall have the meaning set forth in Section 8.6 with
respect to any Note.
"Material" means material in relation to the business, operations,
affairs, financial condition, assets or properties of the Company and its
Restricted Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect on (a) the
business, operations, affairs, financial condition, assets or properties of the
Company and its Restricted Subsidiaries taken as a whole, or (b) the ability of
the Company to perform its obligations under this Agreement and the Notes, or
(c) the validity or enforceability of this Agreement or the Notes.
"Memorandum" is defined in Section 5.3.
"Moody's" shall mean Xxxxx Investors Service, Inc.
"Multiemployer Plan" means any Plan that is a "multiemployer plan" (as
such term is defined in Section 4001(a)(3) of ERISA).
"Net Proceeds" means with respect to any sale of property by any Person
an amount equal to (a) the aggregate amount of the consideration received by
such Person in respect of such sale (valued at the Fair Market Value of such
consideration at the time of such sale), minus (b) the sum of (i) all
out-of-pocket costs and expenses actually incurred by such Person in connection
with such sale, and (ii) all state, federal and foreign taxes incurred, or to be
incurred, by the seller in connection with such sale.
"Notes" is defined in Section 1 of this Agreement.
"Officer's Certificate" means a certificate of a Senior Financial Officer
or of any other officer of the Company whose responsibilities extend to the
subject matter of such certificate.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA or any successor thereto.
"Person" means an individual, partnership, corporation, limited liability
company, association, trust, unincorporated organization, or a government or
agency or political subdivision thereof.
"Plan" means an "employee benefit plan" (as defined in Section 3(3) of
ERISA) that is or, within the preceding five years, has been established or
maintained, or to which contributions are or, within the preceding five years,
have been made or required to be made, by the Company
E-4.4(c)-6
or any ERISA Affiliate or with respect to which the Company or any ERISA
Affiliate may have any liability.
"Priority Debt" means (without duplication), as of the date of any
determination thereof, (i) all unsecured Debt of Restricted Subsidiaries
(including all Guaranties of Debt of the Company but excluding (x) Debt owing to
the Company or a Wholly-Owned Restricted Subsidiary and (y) Debt of Subsidiary
Guarantors under the Subsidiary Guaranty and the guaranty of obligations under
the Bank Credit Agreement), and (ii) all Debt of the Company or its Restricted
Subsidiaries secured by Liens other than Debt secured by Liens permitted by
subparagraphs (a) through (j), inclusive, of Section 10.5.
"property" or "properties" means, unless otherwise specifically limited,
real or personal property of any kind, tangible or intangible, xxxxxx or
inchoate.
"Purchasers" means the purchasers of the Notes named in Schedule A
hereto.
"QPAM Exemption" means Prohibited Transaction Class Exemption 84-14
issued by the United States Department of Labor.
"Ratable Portion" mean, with respect to any Note, an amount equal to the
product of (x) the amount equal to the Net Proceeds being so applied to the
prepayment of Senior Debt multiplied by (y) a fraction the numerator of which is
the outstanding principal amount of such Note and the denominator of which is
the aggregate principal amount of Senior Debt of the Company and its Restricted
Subsidiaries.
"Rentals" mean, with respect to any period, the sum of the minimum amount
of rentals and other obligations required to be paid during such period by the
Company or any Restricted Subsidiary under all leases of real or personal
property (other than Capital Leases), excluding any amounts required to be paid
by the lessee under such lease (whether or not therein designated as rent or
additional rent) (a) which are on account of maintenance and repairs, insurance,
taxes, assessments, water rates and similar charges and (b) which are based on
profits, revenues or sales realized by the lessee from the leased property or
otherwise based on the performance of the lessee.
"Required Holders" means, at any time, the holders of more than 50% in
principal amount of the Notes at the time outstanding (exclusive of Notes then
owned by the Company or any of its Affiliates).
"Responsible Officer" means any Senior Financial Officer and any other
officer of the Company with responsibility for the administration of the
relevant portion of this Agreement.
"Reportable Event" shall have the meaning assigned thereto in Section
4043(b) of ERISA.
"Restricted Investments" shall mean all Investments except the following:
E-4.4(c)-7
(a) current assets arising from the sale of goods and services
in the ordinary course of business of the Company;
(b) property to be used in the ordinary course of business;
(c) Investments existing on the date of the Closing;
(d) Investments in obligations issued by or guaranteed by the
United States of America or an agency thereof, or Canada, or any province
thereof, provided that such obligations mature within 365 days from the
date of acquisition thereof;
(e) Investments in certificates of deposit or banker's
acceptances issued by Bank of America, N.A. or any other commercial bank
which is rated in one of the two highest ratings classifications by a
credit rating agency of recognized national standing, provided that such
obligations mature within 365 days from the date of acquisition thereof;
(f) Investments in commercial paper rated in one of the two
highest ratings classifications by a credit rating agency of recognized
national standing and maturing not more than 270 days from the date of
creation thereof;
(g) Investments in Repurchase Agreements;
(h) Investments in one or more Restricted Subsidiaries or any
Person that becomes a Restricted Subsidiary;
(i) Investments in tax-exempt obligations of any state of the
United States of America, or any municipality of any such state, in each
case rated in one of the two highest ratings classifications by a credit
rating agency of recognized national standing, provided that such
obligations mature within 365 days from the date of acquisition thereof;
(j) Investments in treasury stock; and
(k) Investments in money market instrument programs which are
classified as current assets in accordance with GAAP, which money market
instrument programs are administered by an "investment company" regulated
under the Investment Company Act of 1940 and which money market
instrument programs hold only Investments satisfying the criteria set
forth in clauses (d), (e), (f) and (g) above.
As used in this definition of "Restricted Investments":
"Repurchase Agreement" shall mean any written agreement:
(a) that provides for (1) the transfer of one or more
United States Governmental Securities in an aggregate principal
amount at least equal to the
E-4.4(c)-8
amount of the Transfer Price (defined below) to the Company or
any of its Subsidiaries from an Acceptable Bank or an Acceptable
Broker-Dealer against a transfer of funds (the "Transfer Price")
by the Company to such Acceptable Bank or Acceptable
Broker-Dealer, and (2) a simultaneous agreement by the Company,
in connection with such transfer of funds, to transfer to such
Acceptable Bank or Acceptable Broker-Dealer the same or
substantially similar United States Governmental Securities for a
price not less than the Transfer Price plus a reasonable return
thereon at a date certain not later than 365 days after such
transfer of funds,
(b) in respect of which the Company shall have the right,
whether by contract or pursuant to applicable law, to liquidate
such agreement upon the occurrence of any default thereunder, and
(c) in connection with which the Company, or an agent
thereof, shall have taken all action required by applicable law
or regulations to perfect a Lien in such United States
Governmental Securities.
"Acceptable Bank" shall mean Bank of America or any other bank or
trust company (i) which is organized under the laws of the United States
of America or any state thereof, (ii) which has capital, surplus and
undivided profits aggregating at least $500,000,000, and (iii) whose
long-term unsecured debt obligations (or the long-term unsecured debt
obligations of the bank holding company owning all of the capital stock
of such bank or trust company) shall have been given one of the two
highest ratings by at least one credit rating agency of recognized
national standing.
"Acceptable Broker-Dealer" shall mean any Person other than a
natural person (i) which is registered as a broker or dealer pursuant to
the Exchange Act and (ii) whose long-term unsecured debt obligations
shall have been given a rating of "A" or better by S&P, "A2" or better by
Moody's or an equivalent rating by any other credit rating agency of
recognized national standing.
"Restricted Subsidiary" shall mean each Subsidiary listed as a Restricted
Subsidiary on Schedule 5.4 and any other Subsidiary,
(1) a majority of each class of voting securities of which is
legally and beneficially owned by the Company and its Restricted
Subsidiaries; and
(2) which has not been designated as an Unrestricted Subsidiary
by the Company pursuant to Section 9.6.
"S&P" means Standard & Poor's Ratings Group, a division of The
XxXxxx-Xxxx Companies, Inc.
"Securities Act" means the Securities Act of 1933, as amended from time
to time.
E-4.4(c)-9
"Senior Debt" means, as of the date of any determination thereof, all
Consolidated Debt, other than Subordinated Debt.
"Senior Executive Officer" shall mean the Chairman, Chief Executive
Officer, the President, Executive Vice President and any other Senior Financial
Officer of the Company.
"Senior Financial Officer" means the chief financial officer, principal
accounting officer, treasurer or comptroller of the Company.
"Significant Subsidiary" means, at any time, any Restricted Subsidiary
which accounts for more than (i) 10% of the consolidated assets of the Company
and its Restricted Subsidiaries or (ii) 10% of the consolidated revenue of the
Company and its Restricted Subsidiaries.
"Subordinated Debt" means all unsecured Debt of the Company which shall
contain or have applicable thereto subordination provisions providing for the
subordination thereof to other Debt of the Company (including, without
limitation, the obligations of the Company under this Agreement).
"Subsidiary" means, as to any Person, any corporation, association or
other business entity in which such Person or one or more of its Subsidiaries or
such Person and one or more of its Subsidiaries owns sufficient equity or voting
interests to enable it or them (as a group) ordinarily, in the absence of
contingencies, to elect a majority of the directors (or Persons performing
similar functions) of such entity, and any partnership or joint venture if more
than a 50% interest in the profits or capital thereof is owned by such Person or
one or more of its Subsidiaries or such Person and one or more of its
Subsidiaries (unless such partnership can and does ordinarily take major
business actions without the prior approval of such Person or one or more of its
Subsidiaries). Unless the context otherwise clearly requires, any reference to a
"Subsidiary" is a reference to a Subsidiary of the Company.
"Subsidiary Guarantor" means ProQuest Business Solutions, Inc. and
ProQuest Information and Learning Company and each other Person that subsequent
to the date of this Agreement becomes a party to the Subsidiary Guaranty in
accordance with Section 9.7 of this Agreement.
"Subsidiary Guaranty" shall have the meaning assigned thereto in Section
2.2 hereof.
"Unrestricted Subsidiary" means any Subsidiary so designated by the
Company.
"Wholly-Owned" when used in connection with any Subsidiary shall mean a
Subsidiary of which all of the issued and outstanding shares of stock or other
equity interests (other than directors' qualifying shares or shares owned by
foreign domiciliaries as required by law) shall be owned by the Company and/or
one or more of its Wholly-Owned Restricted Subsidiaries.
"Wholly-Owned Restricted Subsidiary" means, at any time, any Restricted
Subsidiary one hundred percent (100%) of all of the equity interests (except
directors' qualifying shares)
E-4.4(c)-10
and voting interests of which are owned by any one or more of the Company and
the Company's other Wholly-Owned Restricted Subsidiaries at such time.
E-4.4(c)-11
