Form Note. If more than one Closing is contemplated, it is recommended that the word “applicable,” “each” or “such” be inserted before the word “Closing” where appropriate in the Note Purchase Agreement.
Form Note. It is recommended that the language that appears below be used to replace the introductory paragraph of Section 7.2 if it is anticipated that there will be a significant time-lag between the execution of the Note Purchase Agreement and the Closing. “Each set of financial statements delivered to a Purchaser or a holder of a Note pursuant to Section 7.1(a) or Section 7.1(b) shall be accompanied by a certificate of a Senior Financial Officer:”
Form Note. The Financial Covenants Reference Manual contains two alternative definitions of Priority Debt (definitions Z.58.1 and Z.58.2) that the parties may want to consider including in this Schedule A. The only place that the defined term “Priority Debt” is used is in Section 10.5.
Form Note. It is recommended that the language that appears below be used to replace the definition of Required Holders if it is anticipated that there will be a significant time-lag between the execution of the Note Purchase Agreement and the Closing:
Form Note. In some jurisdictions Purchasers may prefer an expanded version of this representation (and the corresponding affirmative covenant in Section 9.8) that extends beyond Indebtedness to “payment obligations” in order to ascertain which, if any, payment obligations are preferred under local law. In such cases a Schedule of such preferred payment obligations would be appropriate.
Form Note. If the bracketed language, or a variation thereof, is not included in the Note Purchase Agreement, the Company may be expected to expand the circumstances under which it would be permitted to offer pursuant to Section 8.3 to prepay Notes of transferee holders situated in jurisdictions giving rise to a substantial withholding tax obligation unrelated to a Change in Tax Law. 56 Form Note: See Form Note 3.
Form Note. Opinions as to valid existence and other matters referred to in Section 5.4(c) covering Subsidiaries may be required under appropriate circumstances. 64 Note that the NAIC requires at least three years of audited financial statements.
Form Note. It is recommended that the language that appears below be used to replace the introductory sentence of Section 9 if it is anticipated that there will be a significant time-lag between the execution of the Note Purchase Agreement and the Closing: “From the date of this Agreement until the Closing and thereafter, so long as any of the Notes are outstanding, the Company covenants that:” It is also recommended that the following language be added at the end of Section 9 if it is anticipated that there will be a significant time-lag between the execution of the Note Purchase Agreement and the Closing: “Although it will not be a Default or an Event of Default if the Company fails to comply with any provision of Section 9 on or after the date of this Agreement and prior to the Closing, if such a failure occurs, then any of the Purchasers may elect not to purchase the Notes on the date of Closing that is specified in Section 3.”
Form Note. When a Guaranty Agreement is provided after the initial closing, replace the bracketed language with: “compliance with the Note Agreement”.
Form Note. It may be appropriate to add a clause that provides the holders of the Notes the same protection as contemplated by clause (i) and clause (ii) in circumstances where the documents relating to the Company’s or any Subsidiary’s Indebtedness contain provisions that are essentially the equivalent of traditional defaults or events of default but are formulated as required prepayments or “puts” of such Indebtedness. If, however, the Note Purchase Agreement includes a provision giving the holders of the Notes such a put in connection with a “change of control”, it may be appropriate to exclude events giving rise to that put from the “other condition” referred to in clause (ii).
