OPTICAL COATING LABORATORY, INC.
DATED AS OF JULY 30, 1998
Note Purchase Agreement
_____________________
$6,400,000 8.71% SERIES A1 SENIOR NOTES DUE JUNE 1, 2002
$8,000,000 7.80% SERIES A2 SENIOR NOTES DUE JULY 31, 2008
$30,000,000 6.69% SERIES B SENIOR NOTES DUE JULY 31, 2008
TABLE OF CONTENTS
PAGE
1. BACKGROUND; AUTHORIZATION OF NOTES....................... 1
1.1 Background.......................................... 1
1.2 Authorization of Issuance and Exchange of Notes..... 1
2. NOTE EXCHANGE; SALE AND PURCHASE OF SERIES B NOTES....... 2
2.1 Note Exchange....................................... 2
2.2 Sale and Purchase of Series B Notes................. 2
2.3 Other Agreements.................................... 2
3. CLOSING.................................................. 3
4. CONDITIONS TO CLOSING.................................... 3
4.1 Representations and Warranties...................... 3
4.2 Performance; No Default............................. 3
4.3 Compliance Certificates............................. 4
4.4 Opinions of Counsel................................. 4
4.5 Purchase Permitted By Applicable Law, etc........... 4
4.6 Note Exchange and Sale of Other Notes............... 4
4.7 Payment of Special Counsel Fees..................... 5
4.8 Private Placement Numbers........................... 5
4.9 Payments in respect of Existing Notes............... 5
4.10 Changes in Corporate Structure...................... 5
4.11 Certain Consents and Agreements..................... 5
4.12 Credit Agreement.................................... 5
4.13 Proceedings and Documents........................... 6
4A. CONDITIONS TO THE COMPANY'S OBLIGATION TO ISSUE THE
NOTES.................................................... 6
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY............ 6
5.1 Organization; Power and Authority................... 6
5.2 Authorization, etc.................................. 6
5.3 Disclosure.......................................... 7
5.4 Organization and Ownership of Shares of
Subsidiaries; Affiliates............................ 7
5.5 Financial Statements................................ 8
5.6 Compliance with Laws, Other Instruments, etc........ 8
5.7 Governmental Authorizations, etc.................... 9
5.8 Litigation; Observance of Agreements, Statutes and
Orders.............................................. 9
5.9 Taxes............................................... 9
5.10 Title to Property; Leases........................... 9
5.11 Licenses, Permits, etc.............................. 10
5.12 Compliance with ERISA and Foreign Pension Plans..... 10
5.13 Private Offering by the Company..................... 11
5.14 Use of Proceeds; Margin Regulations................. 11
5.15 Existing Indebtedness; Future Liens................. 12
5.16 Foreign Assets Control Regulations, etc............. 12
5.17 Status under Certain Statutes....................... 12
5.18 Environmental Matters............................... 12
6. REPRESENTATIONS OF THE PURCHASER......................... 13
6.1 Purchase for Investment............................. 13
6.2 Source of Funds..................................... 13
6.3 No Conflict......................................... 15
6.4 Accredited Investor................................. 15
6.5 No Brokers.......................................... 15
6.6 Acknowledgement..................................... 15
7. INFORMATION AS TO COMPANY................................ 15
7.1 Financial and Business Information.................. 15
7.2 Officer's Certificate............................... 18
7.3 Inspection.......................................... 19
8. PAYMENT OF THE NOTES..................................... 19
8.1 Required Prepayments; Payment at Maturity........... 19
8.2 Optional Prepayments with Make-Whole Amount......... 20
8.3 Allocation of Partial Prepayments................... 21
8.4 Maturity; Surrender, etc............................ 21
8.5 No Other Optional Prepayments or Purchase of Notes.. 21
8.6 Make-Whole Amount................................... 22
9. AFFIRMATIVE COVENANTS.................................... 24
9.1 Compliance with Law................................. 24
9.2 Insurance........................................... 24
9.3 Maintenance of Properties........................... 25
9.4 Payment of Taxes and Claims......................... 25
9.5 Corporate Existence, etc............................ 25
9.6 Designation of Subsidiaries......................... 25
9.7 Pari Passu.......................................... 27
10. NEGATIVE COVENANTS....................................... 27
10.1 Nature of Business.................................. 27
10.2 Transactions with Affiliates........................ 27
10.3 Fixed Charge Coverage............................... 27
10.4 Limitations on Restricted Subsidiary Indebtedness... 27
10.5 Limitation on Consolidated Total Debt and Priority
Indebtedness........................................ 28
10.6 Liens............................................... 29
10.7 Maintenance of Consolidated Adjusted Net Worth...... 31
10.8 Restricted Payments and Restricted Investments...... 32
10.9 Merger, Consolidation, etc.......................... 33
10.10 Sale of Assets, etc................................ 34
11. EVENTS OF DEFAULT........................................ 35
12. REMEDIES ON DEFAULT, ETC................................. 38
12.1 Acceleration........................................ 38
12.2 Other Remedies...................................... 38
12.3 Rescission.......................................... 39
12.4 No Waivers or Election of Remedies, Expenses, etc... 39
13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES............ 40
13.1 Registration of Notes............................... 40
13.2 Transfer and Exchange of Notes...................... 40
13.3 Replacement of Notes................................ 40
14. PAYMENTS ON NOTES........................................ 41
14.1 Place of Payment.................................... 41
14.2 Home Office Payment................................. 41
15. EXPENSES, ETC............................................ 41
15.1 Transaction Expenses................................ 41
15.2 Survival............................................ 42
16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE
AGREEMENT................................................ 42
17. AMENDMENT AND WAIVER..................................... 42
17.1 Requirements........................................ 42
17.2 Solicitation of Holders of Notes.................... 43
17.3 Binding Effect, etc................................. 43
17.4 Notes held by Company, etc.......................... 44
18. NOTICES.................................................. 44
19. REPRODUCTION OF DOCUMENTS................................ 45
20. CONFIDENTIAL INFORMATION................................. 45
21. SUBSTITUTION OF PURCHASER................................ 47
22. MISCELLANEOUS............................................ 47
22.1 Successors and Assigns.............................. 47
22.2 Payments Due on Non-Business Days; When Payments
Deemed Received..................................... 47
22.3 Severability........................................ 47
22.4 Construction........................................ 48
22.5 Counterparts........................................ 48
22.6 Governing Law....................................... 48
TABLE OF CONTENTS (cont.)
SCHEDULE A -- Information Relating to Purchasers
SCHEDULE B -- Defined Terms
SCHEDULE 3 -- Payment Instructions
SCHEDULE 4.10 -- Changes in Corporate Structure
SCHEDULE 5.3 -- Disclosure Materials
SCHEDULE 5.4 -- Subsidiaries of the Company and Ownership
of Restricted Subsidiary Stock
SCHEDULE 5.5 -- Financial Statements
SCHEDULE 5.8 -- Certain Litigation
SCHEDULE 5.11 -- Patents, etc.
SCHEDULE 5.12 -- ERISA Affiliates and Foreign Pension Plans
SCHEDULE 5.15 -- Existing Indebtedness and Liens
SCHEDULE 10.8 -- Existing Investments
EXHIBIT A1 -- Form of 8.71% Series A1 Senior Note due
June 1, 2002
EXHIBIT A2 -- Form of 7.80% Series A2 Senior Note due
July 31, 2008
EXHIBIT B -- Form of 6.69% Series B Senior Note due
July 31, 2008
EXHIBIT 4.4(a) -- Form of Opinion of Special Counsel for the
Company
EXHIBIT 4.4(b) -- Form of Opinion of Special Counsel for
the Purchasers
OPTICAL COATING LABORATORY, INC.
0000 Xxxxxxxxxx Xxxxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000-0000
$6,400,000 8.71% SERIES A1 SENIOR NOTES DUE JUNE 1, 2002
$8,000,000 7.80% SERIES A2 SENIOR NOTES DUE JULY 31, 2008
$30,000,000 6.69% SERIES B SENIOR NOTES DUE JULY 31, 2008
Dated as of July 30, 1998
To the Purchaser Named on
the Signature Page Hereto
Ladies and Gentlemen:
OPTICAL COATING LABORATORY, INC., a Delaware corporation
(together with its successors and assigns, the "Company"), agrees
with you as follows:
1. BACKGROUND; AUTHORIZATION OF NOTES
The Company has heretofore issued to Massachusetts Mutual
Life Insurance Company (as successor to Connecticut Mutual Life
Insurance Company), Modern Woodmen of America and American Life
and Casualty Insurance Company (the "Existing Noteholders") its
8.71% Senior Notes due June 1, 2002 (the "Existing Notes"), in
the aggregate original principal amount of $18,000,000, pursuant
to, and in accordance with the provisions of, those certain Note
Purchase Agreements (collectively, the "Existing Note Purchase
Agreement"), dated as of May 27, 1994, between the Company and,
respectively, each of the Existing Noteholders. The aggregate
principal amount of the Existing Notes currently outstanding is
$14,400,000.
1.2 Authorization ofIssuance and Exchange of Notes.
(a) Authorization of Series A1 Notes and Series A2
Notes in Exchange for Existing Notes. In exchange for the
Existing Notes, the Company will authorize the issue of, and
execute and deliver:
(i) $6,400,000 aggregate principal amount of its
8.71% Series A1 Senior Notes due June 1, 2002 (the
"Series A1 Notes," such term to include any such notes
issued in substitution therefor pursuant to Section 13
of this Agreement or the Other Agreements (as
hereinafter defined)); and
(ii) $8,000,000 aggregate principal amount of its
7.80% Series A2 Senior Notes due July 31, 2008 (the
"Series A2 Notes," such term to include any such notes
issued in substitution therefor pursuant to Section 13
of this Agreement or the Other Agreements).
The exchange of the Series A1 Notes and Series A2 Notes for
the Existing Notes is hereinafter referred to as the "Note
Exchange."
(b) Authorization of Series B Notes. The Company will
authorize the issue and sale of $30,000,000 aggregate
principal amount of its 6.69% Series B Senior Notes due July
31, 2008 (the "Series B Notes," such term to include any
such notes issued in substitution therefor pursuant to
Section 13 of this Agreement or the Other Agreements).
(c) Forms of Notes; Certain Definitions. The Series
A1 Notes shall be substantially in the form set out in
Exhibit A1, the Series A2 Notes shall be substantially in
the form set out in Exhibit A2, and the Series B Notes shall
be substantially in the form set out in Exhibit B, in each
case, with such changes therefrom, if any, as may be
approved by you and the Company. The Series A1 Notes, the
Series A2 Notes and the Series B Notes are herein referred
to collectively as the "Notes," and individually as a
"Note." Certain capitalized terms used in this Agreement
are defined in Schedule B; references to a "Section,"
"Schedule" or an "Exhibit" are, unless otherwise specified,
to a Section of, or a Schedule or an Exhibit attached to,
this Agreement.
2. NOTE EXCHANGE; SALE AND PURCHASE OF SERIES B NOTES
2.1 Note Exchange
Subject to the terms and conditions of this Agreement, at
the Closing provided for in Section 3, the Company shall deliver
to you, if you are a holder of any of the Existing Notes, one or
more Series A1 Notes or Series A2 Notes (as set forth below your
name on Schedule A) in the aggregate principal amount of the
Existing Notes held by you, and in consideration thereof you
shall surrender to the Company, for cancellation, the Existing
Notes held by you. Upon consummation of the Note Exchange, the
Existing Note Purchase Agreement shall be deemed to have been
terminated (other than for the respective rights and obligations
of the parties under Sections 7.5, 10.3 and 10.6 thereof, which
shall survive such termination) and all Existing Notes shall be
cancelled.
2.2 Sale and Purchase of Series B Notes
Subject to the terms and conditions of this Agreement, the
Company will issue and sell to you, if you are a purchaser of any
Series B Notes, and you will purchase from the Company, at the
Closing provided for in Section 3, Series B Notes in the
principal amount specified below your name in Schedule A at the
purchase price of 100% of the principal amount thereof.
2.3 Other Agreements
Contemporaneously with entering into this Agreement, the
Company is entering into separate Note Purchase Agreements (the
"Other Agreements") identical with this Agreement with each of
the other purchasers named in Schedule A (the "Other
Purchasers"), providing at such Closing for the Note Exchange
and/or sale to each of the Other Purchasers of Notes of the
Series and in the principal amounts specified below its name in
Schedule A. Your obligation hereunder and the obligations of the
Other Purchasers under the Other Agreements are several and not
joint obligations and you shall have no obligation under any
Other Agreement and no liability to any Person for the
performance or non-performance by any Other Purchaser thereunder.
3. CLOSING
The Note Exchange and the sale and purchase of the Series B
Notes shall occur at the offices of Xxxx & Xxxxxx, Xxx Xxxxx
Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000, at 10:00 a.m., local time,
at a closing (the "Closing") on August 3, 1998 or on such other
Business Day thereafter on or prior to July 31, 1998 as may be
agreed upon by the Company and you and the Other Purchasers. At
the Closing, the Company will deliver to you the Notes of the
Series to be purchased by you and/or acquired by you in the Note
Exchange, as the case may be, in the form of a single Note (or
such greater number of Notes in denominations of at least
$100,000 as you may request), dated the date of the Closing and
registered in your name (or in the name of your nominee), as
indicated in Schedule A, against:
(a) in the case of the Series A1 Notes and the Series
A2 Notes to be acquired by you, if any, your surrender of
the Existing Notes held by you to the Company for
cancellation, and
(b) in the case of the Series B Notes to be purchased
by you, if any, payment by federal funds wire transfer in
immediately available funds of the amount of the purchase
price therefor as directed by the Company in Schedule 3.
If at the Closing the Company shall fail to tender such
Notes to you as provided in clauses (a) and (b) above, or any of
the conditions specified in Section 4 shall not have been
fulfilled to your satisfaction, you shall, at your election, be
relieved of all further obligations under this Agreement, without
thereby waiving any rights you may have by reason of such failure
or such nonfulfillment.
4. CONDITIONS TO CLOSING
Your obligation to enter into the Note Exchange and/or to
purchase and pay for the Series B Notes to be sold to you at the
Closing, as specified in Schedule A, is subject to the
fulfillment to your satisfaction, prior to or at the Closing, of
the following conditions:
4.1 Representations and Warranties
The representations and warranties of the Company in this
Agreement shall be correct when made and at the time of the
Closing.
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 it 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
Schedule 5.14) no Default or Event of Default shall have occurred
and be continuing. Neither the Company nor any Restricted
Subsidiary shall have entered into any transaction since the date
of the Memorandum that would have been prohibited by any of
Sections 10.2, 10.5, 10.6, 10.8, 10.9 or 10.10 had such Sections
applied since such date.
4.3 Compliance Certificates
(a) Officer's Certificate. The Company shall have
delivered to you an Officer's Certificate, dated the date of
the Closing, certifying that the conditions specified in
Sections 4.1, 4.2 and 4.10 have been fulfilled.
(b) Secretary's Certificate. The Company shall have
delivered to you a certificate of its Secretary or one of
its Assistant Secretaries, dated the date of the Closing,
certifying as to the resolutions attached thereto and other
corporate proceedings relating to the authorization,
execution and delivery of the Notes, this Agreement and the
Other Agreements.
4.4 Opinions of Counsel
You shall have received from
(a) Xxxxxxxx & Xxxxxxxx, counsel for the Company, and
(b) Xxxx & Xxxxxx, your special counsel,
closing opinions, each dated the date of the Closing,
substantially in the respective forms set forth in Exhibits
4.4(a) and 4.4(b), and as to such other matters as you may
reasonably request. This Section 4.4 shall constitute direction
by the Company to such counsel named in the immediately preceding
clause (a) to deliver such closing opinion to you.
4.5 Purchase Permitted By Applicable Law, etc.
On the date of the Closing your acquisition of Notes shall
(a) be permitted by the laws and regulations of each jurisdiction
to which you are 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 you to any tax, penalty or
liability under or pursuant to any applicable law or regulation
(other than any tax based solely on income received by you). If
requested by you, you shall have received an Officer's
Certificate certifying as to such matters of fact as you may
reasonably specify to enable you to determine whether such
acquisition is so permitted.
4.6 Note Exchange and Sale of Other Notes
Contemporaneously with the Closing, the Company and all of
the Existing Noteholders shall consummate the Note Exchange and
the Company shall sell to the Other Purchasers and the Other
Purchasers shall purchase the Series B Notes to be purchased by
them at the Closing as specified in Schedule A.
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,
charges and disbursements of your special counsel referred to in
Section 4.4(b) to the extent reflected in a statement of such
counsel rendered to the Company at least one Business Day prior
to the date of the Closing.
4.8 Private Placement Numbers
Private Placement Numbers 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 each Series.
4.9 Payments in respect of Existing Notes
The Company shall have made payment, to each Existing
Noteholder, of all accrued interest on the outstanding principal
amount of the Existing Notes held by such Existing Noteholder.
4.10 Changes in Corporate Structure
Except as specified in Schedule 4.10, the Company shall not
have changed its jurisdiction of incorporation or 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.
4.11 Certain Consents and Agreements.
Each holder of Indebtedness of the Company the consent of
which is, in the reasonable judgment of you and your special
counsel, necessary or desirable to permit the Company to enter
into the transactions contemplated by this Agreement and to
perform its obligations in respect of this Agreement and the
Notes shall have executed and delivered to you a consent, in form
and substance acceptable to you, to the transactions contemplated
by this Agreement, permitting the Company to incur and have
outstanding the indebtedness and all other obligations in respect
of this Agreement and the Notes, the issuance and sale of the
Notes, and waiving any default or event of default which might
have occurred by virtue of the execution and delivery of this
Agreement and the Notes.
4.12 Credit Agreement.
You shall have received a copy of the Credit Agreement,
entered into on the date of the Closing, by and among the
Company, Bank of America National Trust and Savings Association,
as agent and letter of credit issuing bank, and the other
financial institutions party thereto, certified as being true and
complete by an officer of the Company.
4.13 Proceedings and Documents3
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 you and your special counsel, and you and your special counsel
shall have received all such counterpart originals or certified
or other copies of such documents as you or they may reasonably
request.
4A. CONDITIONS TO THE COMPANY'S OBLIGATION TO ISSUE
THE NOTES
Anything in this Agreement to the contrary notwithstanding,
the Company's obligation to issue the Notes shall be subject to
the conditions that (i) each of the Other Purchasers shall have
executed and delivered a Note Purchase Agreement identical
(except as to the identity of the purchaser thereunder) to this
Agreement, and such Other Purchasers shall have accepted delivery
of, and made payment for, the Notes to be purchased by them at
the Closing; and (ii) all of the Existing Notes shall have been
surrendered and cancelled concurrently with, or prior to, the
Closing. The Company acknowledges that the issuance of the Notes
to you and each Other Purchaser on the date of the Closing, and
the payment by you and each Other Purchaser for the Notes to be
purchased by you and each Other Purchaser on the date of the
Closing, if in each case effectuated on the date of Closing,
shall be deemed to have been contemporaneously effectuated and
shall satisfy the conditions specified in the preceding sentence.
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to you, as of the date
of the Closing, that:
5.1 Organization; Power and Authority
The Company:
(a) is a corporation duly organized, validly existing
and in good standing under the laws of the State of
Delaware;
(b) 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; and
(c) 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 Other Agreements and the Notes and to perform the
provisions hereof and thereof.
5.2 Authorization, etc.
This Agreement, the Other Agreements 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 (a) applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and (b)
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law).
5.3 Disclosure.
The Company, through its agent, BancAmerica Xxxxxxxxx
Xxxxxxxx, has delivered to you and each Other Purchaser a copy of
an Offering Memorandum, dated June 1998 (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. Except as disclosed in Schedule 5.3,
this Agreement, the Memorandum, the documents, certificates or
other writings delivered to you 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. Except as disclosed in the Memorandum or as expressly
described in Schedule 5.3, or in one of the documents,
certificates or other writings identified therein, or in the
financial statements listed in Schedule 5.5, since June 1, 1998,
there has been no change in the financial condition, operations,
business, properties or prospects of the Company or any
Restricted Subsidiary except changes that individually or in the
aggregate could not reasonably be expected to have a Material
Adverse Effect. There is no fact known to the 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 you by or
on behalf of the Company specifically for use in connection with
the transactions contemplated hereby.
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
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
outstanding owned by the Company and each other Subsidiary,
(ii) the Company's Restricted Subsidiaries, (iii) the
Company's Affiliates, other than Subsidiaries, and (iv) the
Company's directors and senior officers.
(b) All of the outstanding shares of Capital Stock 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 Restricted Subsidiary free and clear of any Lien
(except as otherwise disclosed in Schedule 5.4).
(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 Material legal restriction or any Material agreement
(other than this Agreement, the Other Agreements, the
agreements listed in 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 of such Subsidiary.
(e) As of the date of the Closing, (i) the total
assets of all Unrestricted Subsidiaries, if such assets were
included in the computation of Consolidated Total Assets,
would constitute less than 20% of such Consolidated Total
Assets, and (ii) the total revenues of all Unrestricted
Subsidiaries would constitute less than 20% of consolidated
total revenues of the Company and its Subsidiaries at such
time.
5.5 Financial Statementsl
The Company has delivered to you and each Other Purchaser
copies of the financial statements of the Company and its
Subsidiaries listed in 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
respective dates specified in such Schedule and the consolidated
results of their operations and cash flows for the respective
periods so specified and have been prepared in accordance with
GAAP consistently applied throughout the periods involved except
as set forth in the notes thereto (subject, in the case of any
interim financial statements, to normal year-end adjustments).
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 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, which
conflict or breach, individually or in the aggregate with
any and all other such conflicts or breaches, could
reasonably be expected to have a Material Adverse Effect, or
(c) violate any provision of any statute or other rule
or regulation of any Governmental Authority applicable to
the Company or any Subsidiary, which violation, individually
or in the aggregate with any and all other such violations,
could reasonably be expected to have a Material Adverse
Effect.
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.
5.8 Litigation; Observance of Agreements,
Statutes and Orders
(a) Except as 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 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.
5.9 Taxes.
The Company and its Subsidiaries have filed all tax returns
that are required to have been filed in any jurisdiction, and
have paid all taxes shown to be due and payable on such returns
and all other taxes and assessments levied upon them or their
properties, assets, income or franchises, to the extent such
taxes and assessments have become due and payable and before they
have become delinquent, except for any taxes and assessments (a)
the amount of which is not individually or in the aggregate
Material or (b) the amount, applicability or validity of which is
currently being contested in good faith by appropriate
proceedings and with respect to which the 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. 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 October 31, 1997.
5.10 Title to Property; Leases
The Company and its Subsidiaries have good and sufficient
title to their respective properties 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
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.
5.11 Licenses, Permits, etc.
Except as disclosed in Schedule 5.11,
(a) the Company and its 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 conflict with the rights of others;
(b) to the best knowledge of the Company, no product
or practice of the Company or any Restricted Subsidiary
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
(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 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
Subsidiaries.
5.12 Compliance with ERISA and Foreign Pension
Plans
(a) 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) 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 the ERISA Affiliates have not
incurred 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 postretirement 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 Restricted Subsidiaries is not Material.
(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. 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 your representation in
Section 6.2 as to the Sources used to pay the purchase price
of the Notes to be purchased by you.
(f) Schedule 5.12 sets forth all ERISA Affiliates and
all "employee benefit plans" maintained by the Company (or
any "affiliate" thereof) or in respect of which the Notes
could constitute an "employer security" ("employee benefit
plan" has the meaning specified in section 3 of ERISA,
"affiliate" has the meaning specified in section 407(d) of
ERISA and section V of the Department of Labor Prohibited
Transaction Exemption 95-60 (60 FR 35925, July 12, 1995) and
"employer security" has the meaning specified in section
407(d) of ERISA).
(g) The present value of all benefits vested under
each Foreign Pension Plan, determined as of the most recent
valuation date in respect thereof, does not exceed the value
of the assets of such Foreign Pension Plan, and all required
payments in respect of funding each such Foreign Pension
Plan have been made.
5.13 Private Offering by the Company
Neither the Company nor anyone acting on its 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 you, the Other Purchasers and not more than 10 other
Institutional Investors, each of which has been offered the Notes
at 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.
5.14 Use of Proceeds; Margin Regulations
The Company will apply the proceeds of the sale of the Notes
to refinance the Existing Notes and for general corporate
purposes. 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 1% 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
1% of the value of such assets. As used in this Section, the
terms "margin stock" and "purpose of buying or carrying" shall
have the meanings assigned to them in said Regulation U.
5.15 Existing Indebtedness; Future Liens
(a) Except as described therein, Schedule 5.15 sets
forth a complete and correct list of all outstanding
Indebtedness of the Company and its Restricted Subsidiaries
as of January 31, 1998 (and specifying, as to each such
Indebtedness, the collateral, if any, securing such
Indebtedness), since which date there has been no Material
change in the amounts, interest rates, sinking funds,
instalment payments or maturities of the Indebtedness of the
Company or its Restricted Subsidiaries. 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 Indebtedness of the Company or
such Restricted Subsidiary and no event or condition exists
with respect to any Indebtedness of the Company or any
Restricted Subsidiary that would permit (or that with notice
or the lapse of time, or both, would permit) one or more
Persons to cause such Indebtedness 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 10.6(a).
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.
5.17 Status under Certain Statutes
Neither the Company nor any Subsidiary is subject to
regulation under the Investment Company Act of 1940, as amended,
the Public Utility Holding Company Act of 1935, as amended, the
Transportation Acts (49 U.S.C.), as amended, or the Federal Power
Act, as amended.
5.18 Environmental Matters
Neither the Company nor any Subsidiary has knowledge of any
claim or has received any notice of any claim, and no proceeding
has been instituted (and not resolved) raising any claim against
the Company or any of its Subsidiaries or any of their respective
real properties now or formerly owned, leased or operated by any
of them or other assets, alleging any damage to the environment
or 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 you in writing,
(a) neither the Company nor any Subsidiary has
knowledge of any facts which would give rise to any claim,
public or private, of 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 Subsidiaries
has stored any Hazardous Materials on real properties now or
formerly owned, leased or operated by any of them or
disposed of any Hazardous Materials in a manner contrary to
any Environmental Laws in each case 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 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.
6. REPRESENTATIONS OF THE PURCHASER.
6.1 Purchase for Investment1
You represent that you are purchasing the Notes for your own
account or for one or more separate accounts maintained by you 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 your or their property shall at all times be
within your or their control. You understand 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 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.
6.2 Source of Funds
You represent that at least one of the following statements
is an accurate representation as to each source of funds (a
"Source") to be used by you to pay the purchase price of the
Notes to be purchased by you hereunder:
(a) the Source is an "insurance company general
account" as defined in United States Department of Labor
Prohibited Transaction Exemption ("PTE") 95-60 (60 FR 35925,
July 12, 1995) and in respect thereof you represent that
there is no "employee benefit plan" (as defined in section
3(3) of ERISA and section 4975(e)(1) of the Code, treating
as a single plan all plans maintained by the same employer
or employee organization or affiliate thereof) with respect
to which the amount of the general account reserves and
liabilities of all contracts held by or on behalf of such
plan exceeds 10% of the total reserves and liabilities of
such general account (exclusive of separate account
liabilities) plus surplus, as set forth in the National
Association of Insurance Commissioners' Annual Statement
filed with your state of domicile; or
(b) if you are an insurance company, the Source does
not include assets allocated to any separate account
maintained by you in which any employee benefit plan (or its
related trust) has any interest, other than a separate
account that is maintained solely in connection with your
fixed contractual obligations under which the amounts
payable, or credited, to such plan 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; or
(c) 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 you have disclosed to the
Company in writing pursuant to this paragraph (c), 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
(d) the Source constitutes assets of an "investment
fund" (within the meaning of part V of PTE 84-14 (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 (d); or
(e) the Source is a governmental plan; or
(f) 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 has been identified to
the Company in writing pursuant to this paragraph (f); or
(g) the Source does not include assets of any employee
benefit plan, other than a plan exempt from the coverage of
ERISA.
As used in this Section 6.2, the terms "employee benefit plan",
"governmental plan" and "separate account" shall have the
respective meanings assigned to such terms in Section 3 of ERISA.
6.3 No Conflict.
You represent to the Company that your execution and
delivery of this Agreement and purchase of the Notes have been
duly authorized and do not conflict in any material respect with
any articles of incorporation, bylaws, charter, or law,
regulation or order of specific application to you. If you are
surrendering any Existing Notes, you further represent that no
other Person has any right or interest in any such Existing Note
so surrendered and cancelled.
6.4 Accredited Investor
You represent to the Company that you are an "accredited
investor" as such term is defined in Section 2(15) of the
Securities Act.
6.5 No Brokers
Subject to the next sentence of this Section 6.5, you
represent to the Company that you have not retained any broker or
agreed to any broker's or finder's fee for which you would have
liability for or on account of this Agreement or for the purchase
of the Notes contemplated hereby. It is acknowledged that
BancAmerica Xxxxxxxxx Xxxxxxxx has been retained by, and
represents, the Company (and not you).
6.6 Acknowledgement
You understand and acknowledge that some of the Company's
warranties and representations in Section 5 are made in reliance
upon your representations in this Section 6.
7. INFORMATION AS TO COMPANY
7.1 Financial and Business Information
The Company shall deliver to each holder of Notes that is an
Institutional Investor:
(a) Quarterly Statements -- within 60 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) an unaudited consolidated balance sheet of
the Company and its Subsidiaries as at the end of such
quarter, and
(ii) unaudited consolidated statements of income,
stockholders' 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 Officer as fairly
presenting, in all material respects, the consolidated
financial position of the companies being reported on and
their consolidated results of operations and cash flows,
subject to changes resulting from 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 SEC shall be deemed to satisfy the
requirements of this Section 7.1(a);
(b) Annual Statements -- within 105 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,
stockholders' 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 consolidated financial position of
the companies being reported upon and their consolidated
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
prepared in accordance with the requirements therefor and
filed with the SEC, shall be deemed to satisfy the
requirements of this Section 7.1(b);
(c) Additional Financial Statements -- if, for any
fiscal period of the Company, either
(i) total assets of all Unrestricted Subsidiaries
as at the end of such fiscal period, if such assets
were included in the computation of Consolidated Total
Assets as at the end of such fiscal period, would
constitute more than 10% of such Consolidated Total
Assets, or
(ii) total revenues of all Unrestricted
Subsidiaries for such fiscal period, if revenues would
constitute more than 10% of consolidated total revenues
of the Company and its Subsidiaries for such period,
concurrently with the delivery of the applicable statements
referred to in Section 7.1(a) or Section 7.1(b) required to
be delivered for such fiscal period,
(A) unaudited combined and combining balance
sheets of the Unrestricted Subsidiaries, as at the end
of such fiscal period, and
(B) unaudited combined and combining statements
of income and cash flows of the Unrestricted
Subsidiaries, for such fiscal period,
and, in the case of the combined financial statements, (1)
reflecting all eliminations and adjustments required to
reconcile such statements to the consolidated financial
statements delivered for such fiscal period pursuant to
Section 7.1(a) or Section 7.1(b) above, as the case may be,
and (2) setting forth, 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 such financial statements generally, and
certified by a Senior Financial Officer as fairly
presenting, in all material respects, the combined financial
position of the Unrestricted Subsidiaries and their combined
results of operations and cash flows, subject to changes
resulting from year-end adjustments;
(d) SEC and Other Reports -- promptly upon their
becoming available, one copy of (i) each financial
statement, report (including, without limitation, the
Company's annual report to shareholders, if any, prepared
pursuant to Rule 14a-3 under the Exchange Act), 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 SEC and of all press
releases and other statements made available generally by
the Company or any Restricted Subsidiary to the public
concerning developments that are Material;
(e) Notice of Default or Event of Default -- promptly,
and in any event within five days after a Responsible
Officer becoming 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
five days after a Responsible Officer becoming 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(c) of ERISA and the
regulations thereunder, for which notice thereof has
not been waived pursuant to such regulations as in
effect on the date of the Closing; 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 penalty or excise tax provisions of
the Code relating to employee benefit plans, or in 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 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;
(h) Actions, Proceedings -- promptly after a
Responsible Officer becomes aware of the commencement
thereof, notice of any action or proceeding relating to the
Company or any Subsidiary in any court or before any
Governmental Authority or arbitration board or tribunal as
to which there is a reasonable possibility of an adverse
determination and that, if adversely determined, could
reasonably be expected to have a Material Adverse Effect;
and
(i) 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, or such information regarding the Company required to
satisfy the requirements of 17 C.F.R. S230.144A, as amended
from time to time, in connection with any contemplated
transfer of the Notes.
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 Sections 7.1(c), 10.3 through 10.10, inclusive, 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 has not
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.
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 Subsidiary, all at such
reasonable times 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
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 times and as often as may be
requested.
8. PAYMENT OF THE NOTES
8.1 Required Prepayments; Payment at Maturity
Regardless of the amount of the Notes which may be
outstanding from time to time, the Company shall prepay or, in
the case of principal amounts due at the maturity of any Note,
pay, and there shall become due and payable on the respective
dates specified below, the respective aggregate principal amounts
of each Series of Notes hereinafter set forth opposite such dates
(or such lesser amount as would constitute payment in full of the
Notes of such Series):
Principal Principal Principal
Date: Amount Amount Amount
of Series A1 of Series A2 of Series B
Notes Notes Notes
to be prepaid to be prepaid to be prepaid
or paid: or paid or paid
June 1, 1999 $1,600,000 $0 $0
June 1, 2000 $1,600,000 $0 $0
June 1, 2001 $1,600,000 $0 $0
June 1, 2002 $1,600,000 $0 $0
Principal Principal Principal
Date: Amount Amount Amount
of Series A1 of Series A2 of Series B
Notes Notes Notes
to be prepaid to be prepaid to be prepaid
or paid: or paid or paid
July 31, 2002 $0 $1,142,857 $4,286,000
July 31, 2003 $0 $1,142,857 $4,286,000
July 31, 2004 $0 $1,142,857 $4,286,000
July 31, 2005 $0 $1,142,857 $4,286,000
July 31, 2006 $0 $1,142,857 $4,286,000
July 31, 2007 $0 $1,142,857 $4,286,000
July 31, 2008 $0 $1,142,858 $4,284,000
____ __________ ___________
Totals $6,400,000 $8,000,000 $30,000,000
Each partial prepayment of the Notes of each Series pursuant to
Section 8.2 will reduce the principal amount of each mandatory
prepayment applicable to the Notes of such Series, as set forth
in this Section 8.1, and the payment at maturity of the Notes of
such Series, in the same proportion as the aggregate unpaid
principal amount of the Notes of such Series is reduced as a
result of such prepayment.
8.2 Optional Prepayments with Make-Whole Amount
Subject to the provisions of Section 8.3, 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 (but if in part,
in an amount not less than $1,000,000 or such lesser amount as
shall then be outstanding), at 100% of the principal amount so
prepaid, plus the Make-Whole Amount determined for the prepayment
date with respect to such principal amount. 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
(a) specify such prepayment date,
(b) specify the aggregate principal amount of the
Notes of each Series to be prepaid on such date,
(c) specify the principal amount of each Note held by
such holder to be prepaid (determined in accordance with
Section 8.3),
(d) specify the interest to be paid on the prepayment
date with respect to such principal amount being prepaid,
and
(e) 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 a certificate of a Senior
Financial Officer specifying the calculation of such Make-Whole
Amount as of the specified prepayment date.
8.3 Allocation of Partial Prepayments
In the case of each partial prepayment of the Series B
Notes, the principal amount of the Series B Notes to be prepaid
shall be allocated among all of the Series B Notes at the time
outstanding in proportion, as nearly as practicable, to the
respective unpaid principal amounts thereof. The Company may, at
its option, pursuant to Section 8.2, (a) prepay the Series A1
Notes and the Series A2 Notes without prepaying the Series B
Notes, and (b) prepay the Series B Notes without prepaying the
Series A1 Notes or the Series A2 Notes; provided that all partial
prepayments of the Series A1 Notes and the Series A2 Notes
pursuant to Section 8.2 shall be allocated to all outstanding
Series A1 Notes and Series A2 Notes (without distinguishing
between the Series) ratably in accordance with the unpaid
principal amounts thereof.
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.
8.5 No Other Optional Prepayments or Purchase of Notes
The Company will not prepay (whether directly or indirectly
by purchase, redemption or other acquisition) any of the
outstanding Notes except upon the payment or prepayment of the
Notes in accordance with the terms of this Section 8 or in
connection with an offer made pursuant to Section 10.10(b). 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 Section 8 and no Notes
may be issued in substitution or exchange for any such Notes.
8.6 Make-Whole Amount
The term "Make-Whole Amount" means, with respect to Prepaid
Principal and the date the payment thereof is due (the "Payment
Date") an amount equal to the excess (if any) of the Present
Value of the Prepaid Cash Flows over the amount of such Prepaid
Principal, determined in respect of such Prepaid Principal as of
such Payment Date. As used in this definition:
"Prepaid Principal" means any portion of the principal
amount of the Notes of any Series being paid for any reason
(including, without limitation, acceleration, optional
prepayment or mandatory payment required because of the
occurrence of a contingency) prior to its regularly
scheduled maturity date.
"Present Value of the Prepaid Cash Flows" means, with
respect to any Prepaid Principal, the Indebtedness in
respect of which such Prepaid Principal was paid, and any
Payment Date in respect thereof, the sum of the present
values of the then remaining scheduled payments of principal
and interest that would have been payable in respect of such
Indebtedness but that are no longer payable as a result of
such payment. In determining such present values,
(a) the amount of interest accrued through and
including the day immediately preceding such Payment
Date on such Prepaid Principal since the scheduled
interest payment date immediately preceding such
Payment Date shall be deducted from the first of such
payments of interest, and
(b) a discount rate per annum equal to the Make-
Whole Discount Rate determined with respect to such
Prepaid Principal and such Payment Date divided by two,
and a discount period of six months of 30 days each,
shall be used.
"Make-Whole Discount Rate" means, in respect of any
Payment Date, the sum of:
(a) .50% per annum; plus
(b) the per annum percentage rate (rounded to the
nearest three decimal places) equal to the bond
equivalent yield to maturity derived from the
Applicable Treasury Rate determined as of the date that
is two Business Days prior to such Payment Date.
"Applicable Treasury Rate" means, at any time:
(a) the Dow Xxxxx Markets Service Rate at such
time;
(b) if the Dow Xxxxx Markets Service is not then
quoting yields on United States Government Securities,
then the Bloomberg Rate at such time;
(c) if neither the Dow Xxxxx Markets Service nor
the Bloomberg Financial Markets System is then quoting
yields on United States Government Securities, then the
per annum yield reported on such other electronic
quotation service selected by the Company and agreed to
by the holders of a majority of the applicable Prepaid
Principal at 10:00 a.m. (New York time) on the second
Business Day preceding such Payment Date for United
States Government Securities having a maturity (rounded
to the nearest month) corresponding to the then
Weighted Average Life to Maturity of such Prepaid
Principal at such time; and
(d) if neither the Dow Xxxxx Markets Service nor
the Bloomberg Financial Markets System is then quoting
yields on United States Government Securities and the
Company and the holders of a majority of such Prepaid
Principal cannot agree on another electronic quotation
service, then the Applicable H.15 Rate at such time.
In each such case, if no such United States Treasury
obligation with a Treasury Constant Maturity corresponding
exactly to such Weighted Average Life to Maturity is listed,
then the yields for the two then most current hypothetical
United States Treasury obligations with Treasury Constant
Maturities most closely corresponding to such Weighted
Average Life to Maturity (one with a longer maturity and one
with a shorter maturity, if available) shall be calculated
pursuant to the immediately preceding sentence and the Make-
Whole Discount Rate shall be interpolated or extrapolated
from such yields on a straight-line basis.
"Applicable H.15" means, at any time, the United States
Federal Reserve Statistical Release H.15(519) then most
recently published and available to the public, or if such
publication is not available, then any other source of
current information in respect of interest rates on
Securities of the United States of America that is generally
available and, in the judgment of the holders of a majority
of applicable Prepaid Principal, provides information
reasonably comparable to the H.15(519) report.
"Applicable H.15 Rate" means, at any time, the then
most current annual yield to maturity of the hypothetical
United States Treasury obligation listed in the then
Applicable H.15 with a maturity equal to the then Weighted
Average Life to Maturity of the applicable Prepaid
Principal.
"Bloomberg Rate" means at any time the per annum yield
reported on the Bloomberg Financial Markets System at 10:00
a.m. (New York time) on the second Business Day preceding
the applicable Payment Date for United States Treasury
obligations having a Treasury Constant Maturity
corresponding to the then Weighted Average Life to Maturity
of such Prepaid Principal. Page USD shall be used as the
source of such yields, or if not then available, such other
screen available on the Bloomberg Financial Markets System
as shall, in the opinion of the holders of a majority of the
Prepaid Principal, provide equivalent information.
"Dow Xxxxx Markets Service Rate" means at any time the
per annum yield reported on the Dow Xxxxx Markets Service at
10:00 a.m. (New York time) on the second Business Day
preceding the applicable Payment Date for United States
Treasury obligations having a Treasury Constant Maturity
(rounded to the nearest month) corresponding to the then
Weighted Average Life to Maturity of such Prepaid Principal.
Page 678 shall be used as the source of such yields, or if
not then available, such other screen available on the Dow
Xxxxx Markets Service as shall, in the opinion of the
holders of a majority of the applicable Prepaid Principal,
provide equivalent information.
"Treasury Constant Maturity" has the meaning specified
in the Applicable H.15.
"Weighted Average Life to Maturity" means, in respect
of any Prepaid Principal, the number of years (calculated to
the nearest 1/12th) obtained by dividing the Remaining
Dollar-Years of such Prepaid Principal by such Prepaid
Principal, determined as of such Payment Date.
"Remaining Dollar-Years" means, in respect of any
Prepaid Principal, the result obtained by:
(a) multiplying, in the case of each then
remaining scheduled payment of principal that would
have been payable in respect of such Prepaid Principal
but is no longer payable as a result of the payment of
such Prepaid Principal;
(i) an amount equal to such scheduled
payment of principal; by
(ii) the number of years (calculated to the
nearest 1/12th) that will elapse between the
applicable Payment Date and the date such
scheduled principal payment would be due if such
Prepaid Principal had not been so prepaid; and
(b) calculating the sum of each of the products
obtained in the preceding subsection (a).
9. AFFIRMATIVE COVENANTS
The Company covenants that so long as any of the Notes are
outstanding:
9.1 Compliance with Law.
The Company will and will cause each of its Subsidiaries to
comply with all laws, ordinances or governmental rules or
regulations to which each of them is subject, and will obtain and
maintain in effect all licenses, certificates, permits,
franchises and other governmental authorizations necessary to the
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.
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.
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.
9.4 Payment of Taxes and Claims
The Company will and will cause each of its 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,
assessments, charges or levies 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 Subsidiary, provided
that neither the Company nor any Subsidiary need pay any such tax
or assessment or claims if (a) the amount, applicability or
validity thereof is contested by the Company or such Subsidiary
on a timely basis in good faith and in appropriate proceedings,
and the Company or a Subsidiary has established adequate reserves
therefor in accordance with GAAP on the books of the Company or
such Subsidiary or (b) the nonpayment of all such taxes,
assessments, charges and levies in the aggregate could not
reasonably be expected to have a Material Adverse Effect.
9.5 Corporate Existence, etc.
The Company will at all times preserve and keep in full
force and effect its corporate existence. Subject to Sections
10.9 and 10.10, the Company will at all times preserve and keep
in full force and effect the corporate existence of each of its
Subsidiaries (unless merged into the Company or a Restricted
Subsidiary) and all rights and franchises of the Company and its
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 could
not, individually or in the aggregate, have a Material Adverse
Effect.
9.6 Designation of Subsidiaries.
(a) Right of Designation. Subject to the satisfaction
of the requirements of Section 9.6(c), the Company shall
have the right to designate each Subsidiary as a Restricted
Subsidiary or an Unrestricted Subsidiary by delivering to
each holder of Notes a writing, signed by a Senior Financial
Officer, certifying that the Board of Directors shall have
so designated such Subsidiary within 30 days of the
acquisition by the Company or any Subsidiary of the
necessary percentages of Voting Stock and other equity
interests of such Subsidiary as set forth in the definition
of "Subsidiary" contained in Schedule B. Any such
Subsidiary not so designated within such 30-day period shall
be deemed, on and after such date and without any further
action by the Company or any holder of Notes, to have been
originally designated by the Company as an Unrestricted
Subsidiary, and such Subsidiary may be redesignated as
contemplated by Section 9.6(b) and Section 9.6(c). Each
Subsidiary designated as a Restricted Subsidiary in Schedule
5.4 shall be a Restricted Subsidiary on and after the date
of the Closing and all other Subsidiaries, if any, listed in
Schedule 5.4 shall, subject to Section 9.6(b), be
Unrestricted Subsidiaries on and after the date of the
Closing.
(b) Right of Redesignation. Subject to the
satisfaction of the requirements of Section 9.6(c), the
Company may at any time designate
(i) any Unrestricted Subsidiary as a Restricted
Subsidiary, or
(ii) any Restricted Subsidiary as an Unrestricted
Subsidiary, by delivering to each holder of Notes a
written notice, signed by a Senior Financial Officer,
certifying that the Board of Directors shall have so
designated such Subsidiary.
(c) Designation Criteria.
(i) No Subsidiary shall at any time after the
date of the Closing be designated as a Restricted
Subsidiary, unless
(A) immediately before and after, and after
giving effect to such designation, and assuming
that all obligations, liabilities and Investments
of, and all Liens on the property of, such
Subsidiary being so designated were incurred or
made contemporaneously with such designation, no
Default or Event of Default exists or would exist,
and
(B) such Subsidiary shall not previously
have been redesignated pursuant to this Section
9.6 more than twice.
(ii) No Subsidiary shall at any time after the
date of the Closing be designated as an Unrestricted
Subsidiary, unless
(A) immediately before and after, and after
giving effect to such designation, no Default or
Event of Default exists or would exist, and
(B) such Subsidiary shall not previously
have been redesignated pursuant to this Section
9.6 more than twice.
(d) Effectiveness. Other than as set forth in the
last two sentences of Section 9.6(a), any designation under
this Section 9.6 that satisfies all of the conditions set
forth in this Section 9.6 shall become effective, for
purposes of this Agreement, on the day that notice thereof
shall have been delivered by the Company and received by
each holder of Notes in accordance with the provisions of
Section 18.
(e) Covenant Compliance. Each notice required by
Section 9.6(d) shall be accompanied by a certificate of a
Senior Financial Officer setting forth the information
(including detailed calculations) required in order to
establish whether the Company is in compliance with the
requirements of Sections 10.3 through Section 10.10,
inclusive, at the time of such designation, and immediately
after giving effect thereto (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 amounts, ratio or percentage at such
times).
9.7 Pari Passu.
The Company covenants that its obligations under the Notes
and under this Agreement and the Other Agreements do and will
rank at least pari passu with all its other present and future
unsecured Senior Debt.
10. NEGATIVE COVENANTS.
The Company covenants that so long as any of the Notes are
outstanding:
10.1 Nature of Business.
The Company will not, and will not permit any Restricted
Subsidiary to, engage in any business if, as a result thereof,
the principal businesses of the Company and its Restricted
Subsidiaries, taken as a whole, would be changed substantially
from the businesses thereof described in the Memorandum.
10.2 Transactions with Affiliates.
The Company will not, and will not permit any Restricted
Subsidiary to, enter into directly or indirectly any transaction
or 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 in the
ordinary course and pursuant to the reasonable requirements of
the Company's or such Restricted Subsidiary's business and 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.
10.3 Fixed Charge Coverage.
The Company will not, at any time, permit Consolidated Net
Income Available for Fixed Charges for the period of four
consecutive fiscal quarters of the Company most recently ended at
such time to be less than 150% of Consolidated Fixed Charges for
such period.
10.4 Limitations on Restricted Subsidiary Indebtedness and
Intercompany Indebtedness.
(a) Limitation on Restricted Subsidiary Indebtedness.
The Company will not, at any time, permit any Restricted
Subsidiary to incur, issue, assume or in any other manner
become liable in respect of any Indebtedness unless
(i) such Indebtedness is Excluded Restricted
Subsidiary Indebtedness and immediately prior to the
creation thereof, and after giving effect thereto and
to any concurrent application of the proceeds of such
Indebtedness, no Default or Event of Default would
exist, or
(ii) such Indebtedness is not Excluded Restricted
Subsidiary Indebtedness and is permitted to be incurred
at such time under Section 10.5, or
(iii) such Indebtedness is a renewal,
extension (as to time) or refunding of Indebtedness
previously incurred in accordance with clause (i) or
clause (ii) hereof, and
(A) the principal amount of the Indebtedness
being so renewed, extended or refunded which is
outstanding at the time of such renewal, extension
or refunding is not increased, and
(B) immediately prior to such renewal,
extension or refunding, and after giving effect
thereto, no Default or Event of Default would
exist.
(b) No Restrictions on Distributions. The Company
will not permit any Restricted Subsidiary to become
obligated in respect of any Indebtedness after the date of
the Closing if any agreement, note or other instrument
executed in connection with, or as a condition to obtaining
the funds constituting, such Indebtedness contains any
limitation or restriction on the ability of such Restricted
Subsidiary to declare or make Distributions in respect of
its Capital Stock.
(c) Disposition of Restricted Subsidiary Indebtedness.
Each Restricted Subsidiary, any of whose outstanding
Indebtedness is at any time sold, transferred or otherwise
disposed of by the Company or another Restricted Subsidiary,
shall be deemed to have incurred all such Indebtedness, and
all Liens securing such Indebtedness (if any), at the time
of such sale, transfer or other disposition.
(d) Limitation on Intercompany Indebtedness. The
Company will not, at any time, incur, issue, assume or in
any other manner become liable in respect of any
Indebtedness owing to any Subsidiary unless
(i) such Subsidiary is a Wholly-Owned Restricted
Subsidiary, and
(ii) all of the Company's obligations in respect
of such Indebtedness are subordinated in right of
payment and security to the Company's obligations under
the Notes on terms and conditions satisfactory in form,
scope and substance to the Required Holders.
10.5 Limitation on Consolidated Total Debt and
Priority Indebtedness.
(a) Limitation on Consolidated Total Debt. The
Company will not, at any time, permit Consolidated Total
Debt to exceed 60% of Consolidated Total Capitalization, in
each case determined at such time.
(b) Limitation on Priority Indebtedness. The Company
will not, at any time, or at any time permit any Restricted
Subsidiary to, incur, issue, assume or in any other manner
become liable in respect of any Priority Indebtedness,
unless
(i) immediately prior to the creation thereof,
and after giving effect thereto and to any concurrent
retirement of any other Priority Indebtedness, the
aggregate amount of Priority Indebtedness would not
exceed 15% of Consolidated Total Assets at such time,
and
(ii) no Default or Event of Default would exist.
10.6 Liens.
(a) Negative Pledge. The Company will not, and will
not permit any Restricted Subsidiary to, cause or permit to
exist, or agree or consent to cause or permit to exist in
the future (upon the happening of a contingency or
otherwise), any of their property, whether now owned or
hereafter acquired, to be subject to any Lien except:
(i) Taxes, etc. -- Liens securing property taxes,
assessments or governmental charges or levies or the
claims or demands of materialmen, mechanics, carriers,
warehousemen, vendors, landlords and other like
Persons, so long as the payment thereof is not at the
time required by Section 9.4;
(ii) Judicial Liens -- Liens
(A) arising from judicial attachments and
judgments,
(B) securing appeal bonds or supersedeas
bonds, and
(C) arising in connection with court
proceedings (including, without limitation, surety
bonds and letters of credit or any other
instrument serving a similar purpose),
provided that (1) any such attachments or judgments
relating thereto have been stayed, bonded or discharged
within 60 days of the entry thereof and the execution
or other enforcement of such Liens is otherwise
effectively stayed, (2) the claims secured thereby are
being actively contested in good faith and by
appropriate proceedings, (3) adequate book reserves
shall have been established and maintained and shall
exist with respect thereto and (4) the aggregate amount
so secured shall not at any time exceed 10% of
Consolidated Adjusted Net Worth at such time;
(iii) Ordinary Course Business Liens -- Liens
incurred or deposits made in the ordinary course of
business
(A) in connection with workers'
compensation, unemployment insurance, social
security and other like laws to secure statutory
or public obligations of the Company or such
Restricted Subsidiary in respect thereof, and
(B) to secure the performance of letters of
credit, bids, tenders, sales contracts, leases,
statutory obligations, surety and performance
bonds (of a type other than set forth in Section
10.6(a)(ii)) and other similar obligations not
incurred in connection with the borrowing of
money, the obtaining of advances or the payment of
the deferred purchase price of property;
provided, however, that all such Liens do not, in the
aggregate, materially detract from the value of such
property or materially interfere with the use of such
property in the ordinary conduct of the business of the
Company and its Restricted Subsidiaries, taken as a
whole;
(iv) Certain Encumbrances -- Liens in the nature
of reservations, exceptions, encroachments, easements,
rights-of-way, covenants, conditions, restrictions,
leases and other similar title exceptions or
encumbrances affecting real property, provided that
such exceptions and encumbrances do not in the
aggregate materially detract from the value of such
properties or materially interfere with the use of such
property in the ordinary conduct of the business of the
Company and its Restricted Subsidiaries, taken as a
whole;
(v) Intercompany Liens -- Liens on property of a
Restricted Subsidiary, provided that such Liens secure
only Indebtedness or other obligations owing to the
Company;
(vi) Closing Date Liens -- Liens in existence on
the date of the Closing securing Indebtedness, provided
that such Liens and the Indebtedness secured thereby
are described in Schedule 5.15;
(vii) Purchase Money Liens -- Purchase Money
Liens, if, after giving effect thereto and to any
concurrent transactions, each such Purchase Money Lien
secures Indebtedness in an amount not exceeding the
lesser of
(A) the cost of acquisition or construction,
or
(B) the Fair Market Value
of the particular property to which such Indebtedness
relates;
(viii) Other Liens -- other Liens securing
Indebtedness of the Company or any Restricted
Subsidiary not otherwise permitted by clauses (i)
through clause (vii), inclusive, of this Section
10.6(a), provided that,
(A) the Indebtedness secured thereby is, at
the time of the incurrence thereof, permitted to
be incurred and outstanding in accordance with the
provisions of Section 10.4(a) and Section 10.5,
and
(B) no Default or Event of Default would
exist; and
(ix) Refinancings, Extensions, etc. -- Liens
securing renewals, extensions (as to time) and
refinancings of Indebtedness secured by the Liens
described in clause (i) through clause (viii) of this
Section 10.6(a), provided that
(A) the amount of Indebtedness or other
obligations secured by each such Lien is not
increased in excess of the amount of such
Indebtedness or other obligations outstanding on
the date of such renewal, extension or
refinancing,
(B) none of such Liens is extended to
encumber or otherwise relate to or cover any
additional property of the Company or any
Restricted Subsidiary, and
(C) immediately prior to, and immediately
after the consummation of such renewal, extension
or refinancing, and after giving effect thereto,
no Default or Event of Default exists or would
exist.
(b) Equal and Ratable Lien; Equitable Lien. In case
any property shall be subjected to a Lien in violation of
this Section 10.6, the Company will forthwith make or cause
to be made, to the fullest extent permitted by applicable
law, provision whereby the Notes will be secured equally and
ratably with all other obligations secured thereby pursuant
to such agreements and instruments as shall be approved by
the Required Holders, and the Company will cause to be
delivered to each holder of Notes an opinion of independent
counsel (selected by the Company and reasonably satisfactory
to the Required Holders) to the effect that such agreements
and instruments are enforceable in accordance with their
terms. Regardless of whether the Company complies with the
provisions of the immediately preceding sentence, in case
any property shall be subjected to a Lien in violation of
this Section 10.6, the Notes shall have the benefit, to the
fullest extent that, and with such priority as, the holders
of Notes may be entitled thereto under applicable law, of an
equitable Lien on such property securing the Notes. A
violation of this Section 10.6 will constitute an Event of
Default, whether or not any such provision is made or action
is taken pursuant to this Section 10.6(b).
(c) Financing Statements. The Company will not, and
will not permit any Restricted Subsidiary to, sign or file a
financing statement under the Uniform Commercial Code of any
jurisdiction that names the Company or such Restricted
Subsidiary as debtor, or sign any security agreement
authorizing any secured party thereunder to file any such
financing statement, except, in any such case, a financing
statement filed or to be filed to perfect or protect a
security interest that the Company or such Restricted
Subsidiary is entitled to create, assume or incur, or permit
to exist, under the foregoing provisions of this Section
10.6 or to evidence for informational purposes a lessor's
interest in property leased to the Company or any such
Restricted Subsidiary.
10.7 Maintenance of Consolidated Adjusted Net
Worth.
The Company will not, at any time, permit Consolidated
Adjusted Net Worth to be less than the sum of
(a) $70,000,000 plus
(b) an aggregate amount equal to 25% of Consolidated
Net Income (but, in each case, only if a positive number)
for each completed fiscal quarter of the Company beginning
with the fiscal quarter ended July 31, 1998.
10.8 Restricted Payments and Restricted
Investments.
(a) Limit on Restricted Payments and Restricted
Investments. The Company will not at any time, and will not
at any time permit any Restricted Subsidiary to, declare or
make any Restricted Payment or make any Restricted
Investment unless:
(i) immediately after, and after giving effect
to, such Restricted Payment or such Restricted
Investment, the sum of the aggregate amount of (x) all
Restricted Payments declared or made during the period
from and after the date of the Closing to and including
the date such Restricted Payment or Restricted
Investment is made, plus (y) all Restricted Investments
held at such time by the Company and its Restricted
Subsidiaries would not exceed the sum of
(A) $10,000,000, plus
(B) the sum of 50% (or minus 100% in the
case of a deficit) of Consolidated Net Income for
the period commencing on and including May 1, 1998
and ending on and including the date such
Restricted Payment is declared or made or such
Restricted Investment is made, plus
(C) the aggregate amount of cash proceeds
(net of all costs and out-of-pocket expenses in
connection therewith, including, without
limitation, placement, underwriting and brokerage
fees and expenses) received by the Company and its
Restricted Subsidiaries after April 30, 1998 and
prior to such time from the issuance and sale of
(I) Capital Stock (other than Redeemable Stock) of
the Company (either directly or through the
exercise of warrants, rights or other options or
the exercise of any rights of the holder of any
Indebtedness of the Company to convert such
Indebtedness to Capital Stock (other than
Redeemable Stock)) or (II) any warrants, rights or
other options to purchase such Capital Stock; and
(ii) at the time of such declaration and
immediately before, and after giving effect to, such
Restricted Payment or such Restricted Investment, no
Default or Event of Default exists or would exist.
(b) Time of Payment. The Company will not authorize a
Distribution on any class of its Capital Stock that is not
payable within 90 days of authorization.
(c) New Restricted Subsidiaries. Any Subsidiary which
becomes a Restricted Subsidiary after the date of the
Closing shall be deemed to have made, at the time such
Subsidiary becomes a Restricted Subsidiary, all Restricted
Investments of such Subsidiary existing immediately after
such Subsidiary shall have become a Restricted Subsidiary.
10.9 Merger, Consolidation, etc.
(a) Merger and Consolidation. The Company will not,
and will not permit any Restricted Subsidiary to, merge with
or into, consolidate with, or sell, lease, transfer or
otherwise dispose of all or substantially all of its assets
to, any other Person, or permit any other Person to merge or
consolidate with or into it, provided that the foregoing
restriction does not apply to
(i) the merger or consolidation of the Company
into or with, or the sale by the Company of all or
substantially all of its assets to, another
corporation, if:
(A) the corporation that results from such
merger or consolidation or that acquires all or
substantially all of such assets (the "Surviving
Corporation") is organized under the laws of the
United States of America, any state thereof or the
District of Columbia;
(B) the due and punctual payment of the
principal of and Make-Whole Amount, if any, and
interest on all of the Notes, according to their
tenor, and the due and punctual performance and
observance of all the covenants in the Notes and
this Agreement to be performed or observed by the
Company, are expressly assumed by the Surviving
Corporation pursuant to such agreements and
instruments as shall be approved by the Required
Holders, and the Company causes to be delivered to
each holder of Notes an opinion of independent
counsel reasonably acceptable to the Required
Holders to the effect that such agreements and
instruments are enforceable in accordance with
their terms (subject to customary qualifications);
and
(C) immediately prior to, and immediately
after the consummation of the transaction, and
after giving effect thereto, no Default or Event
of Default exists or would exist;
(ii) a merger of a Restricted Subsidiary into, or
a consolidation of a Restricted Subsidiary with, the
Company (so long as the Company is the surviving
entity) or a Wholly-Owned Restricted Subsidiary (so
long as such Wholly-Owned Restricted Subsidiary is the
surviving entity) or the sale or other disposition by a
Restricted Subsidiary of all or substantially all of
its assets to the Company or a Wholly-Owned Restricted
Subsidiary; and
(iii) the merger of a Restricted Subsidiary
into, or consolidation of a Restricted Subsidiary with,
or the sale or other disposition by a Restricted
Subsidiary of all or substantially all of its assets
to, another corporation (which shall not be an
Affiliate or a Restricted Subsidiary), if
(A) such transaction complies, in all
respects, with the provisions of Section 10.10,
and
(B) immediately prior to, and immediately
after the consummation of the transaction, and
after giving effect thereto, no Default or Event
of Default exists or would exist.
(b) Acquisition of Stock, etc. The Company will not,
and will not permit any Restricted Subsidiary to, acquire
any Capital Stock of any Person if upon completion of such
acquisition such Person would be a Restricted Subsidiary, or
acquire all of the property of, or such of the property as
would permit the transferee to continue any one or more
integral business operations of, any Person unless,
immediately prior to, and immediately after the consummation
of such acquisition, and after giving effect thereto, no
Default or Event of Default exists or would exist.
10.10 Sale of Assets, etc.
(a) Sale of Assets, etc. The Company will not, and
will not permit any of its Restricted Subsidiaries to, make
any Asset Disposition, unless:
(i) in the good faith opinion of the Company,
such Asset Disposition is in exchange for consideration
having a Fair Market Value at least equal to that of
the property exchanged; and
(ii) immediately after giving effect to such Asset
Disposition:
(A) no Default or Event of Default would
exist; and
(B) the Disposition Value of all property
that was the subject of any Asset Disposition by
the Company and its Restricted Subsidiaries
occurring during such fiscal year would not exceed
10% of Consolidated Total Assets determined as of
the end of the then most recently ended fiscal
year (such amount in respect of the fiscal year in
which such Transfer is proposed to be made is
herein referred to as the "Specified Asset
Percentage").
(b) Transfers in Excess of the Specified Percentage.
(i) Application of Excess Proceeds Amount.
Notwithstanding the provisions of Section 10.10(a), the
Company may, and may permit a Restricted Subsidiary to,
Transfer, in any fiscal year of the Company, property
having an aggregate book value in excess of the
Specified Asset Percentage for such fiscal year of the
Company if:
(A) the Excess Proceeds Amount shall have
been applied by the Company or such Restricted
Subsidiary to a Qualified Proceeds Application
within 360 days of the receipt thereof by the
Company or such Restricted Subsidiary;
(B) immediately before and after the
consummation of each such Transfer, and after
giving effect thereto, no Default or Event of
Default exists or would exist; and
(C) prior to or contemporaneously with the
application of all or any portion of such Excess
Proceeds Amount, the Company shall have delivered
a certificate of a Senior Officer to each holder
of Notes providing a detailed description of such
application and certifying that the conditions set
forth in subclause (A) and subclause (B) hereof
have been satisfied.
(ii) Failure to Apply Proceeds. If,
notwithstanding the provisions of this Section
10.10(b), the Company shall fail to comply with any of
the requirements of Section 10.10(b)(i), then such
failure to comply with any such provisions as of such
date shall be deemed to be an Event of Default.
11. EVENTS OF DEFAULT.
An "Event of Default" shall exist if any of the following
conditions or events shall occur and be continuing:
(a) Principal or Make-Whole Amount Payments -- 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) Interest Payments -- 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) Particular Covenant Defaults -- the Company
defaults in the performance of or compliance with any term
contained in any of Sections 10.2 through 10.10, inclusive,
or Section 7.1(e); or
(d) Other Defaults -- 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; or
(e) Warranties or Representations -- any
representation or warranty made in writing by or on behalf
of the Company or by any officer of the Company in this
Agreement or in any writing furnished in connection with the
transactions contemplated hereby proves to have been false
or incorrect in any material respect on the date as of which
made; or
(f) Default on Indebtedness or Security --
(i) the Company or any Significant Subsidiary is
in default (as principal or as guarantor or other
surety) in the payment of any principal of or premium
or make-whole amount or interest on any Indebtedness
(other than Indebtedness under this Agreement and the
Notes) beyond any period of grace provided with respect
thereto, that individually or together with such other
Indebtedness as to which any such failure exists has an
aggregate outstanding principal amount in excess of
$5,000,000, or
(ii) the Company or any Significant Subsidiary is
in default in the performance of or compliance with any
term of any evidence of any Indebtedness (other than
Indebtedness under this Agreement and the Notes), that
individually or together with such other Indebtedness
as to which any such failure exists has an aggregate
outstanding principal amount in excess of $5,000,000,
or of any mortgage, indenture or other agreement
relating thereto or any other condition exists, and as
a consequence of such default or condition such
Indebtedness has become, or has been declared (or one
or more Persons are entitled to declare such
Indebtedness to be), 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
Indebtedness to convert such Indebtedness into equity
interests),
(A) the Company or any Significant
Subsidiary has become obligated to purchase or
repay Indebtedness before its regular maturity or
before its regularly scheduled dates of payment in
an aggregate outstanding principal amount in
excess of $5,000,000, or
(B) one or more Persons have the right to
require the Company or any Significant Subsidiary
so to purchase or repay such Indebtedness; or
(g) Voluntary Petitions, etc. -- the Company or any
Significant Subsidiary (i) is generally not paying, or
admits in writing its inability to pay, its debts as they
become due, (ii) 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, (iii) makes an assignment
for the benefit of its creditors, (iv) 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, (v) is
adjudicated as insolvent or to be liquidated, or (vi) takes
corporate action for the purpose of any of the foregoing; or
(h) Involuntary Bankruptcy Proceedings -- 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 the
Company or any Significant Subsidiary or with respect to any
substantial part of the property of the Company or any
Significant Subsidiary, 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 order or petition shall not
be dismissed within 60 days; or
(i) Undischarged Final Judgments -- a final judgment
or judgments for the payment of money aggregating in excess
of $5,000,000 are rendered against one or more of the
Company and its Significant Subsidiaries 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
(j) ERISA -- 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 ERISA section 4042 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 5% of
Consolidated Adjusted Net Worth,
(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 would
increase the liability of the Company or any Restricted
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(j), the terms "employee benefit plan" and
"employee welfare benefit plan" shall have the respective
meanings assigned to such terms in section 3 of ERISA.
12. REMEDIES ON DEFAULT, ETC.
12.1 Acceleration.
(a) If an Event of Default with respect to the Company
described in paragraph (g) or paragraph (h) of Section 11
(other than an Event of Default described in clause (i) of
paragraph (g) or described in clause (vi) of paragraph (g)
by virtue of the fact that such clause encompasses clause
(i) of paragraph (g)) 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,
(i) any holder or holders of a majority in
principal amount of the Series A1 Notes and Series A2
Notes at the time outstanding may at any time at its or
their option, by notice or notices to the Company,
declare all the Series A1 Notes and Series A2 Notes
then outstanding to be immediately due and payable, and
(ii) any holder or holders of a majority in
principal amount of the Series B Notes at the time
outstanding may at any time at its or their option, by
notice or notices to the Company, declare all the
Series B 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, 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 it or them to be immediately due and payable.
Upon any Notes becoming due and payable under this
Section 12.1, whether automatically or by declaration, such Notes
will forthwith mature and the entire unpaid principal amount of
such Notes, plus (x) all accrued and unpaid interest thereon and
(y) 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.
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.
12.3 Rescission.
(a) Series A1 Notes and Series A2 Notes. At any time
after any Series A1 Notes and Series A2 Notes have been
declared due and payable pursuant to clause (b) or clause
(c) of Section 12.1, the holders of not less than a majority
in principal amount of the Series A1 Notes and Series A2
Notes then outstanding, by written notice to the Company,
may rescind and annul any such declaration and its
consequences if (i) the Company has paid all overdue
interest on the Series A1 Notes and Series A2 Notes, all
principal of and Make-Whole Amount, if any, due and payable
on any Series A1 Notes and Series A2 Notes 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 Series A1 Notes and Series A2 Notes, at the Default
Rate, (ii) 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 (iii) no judgment or decree has
been entered for the payment of any monies due pursuant
hereto or to the Series A1 Notes and Series A2 Notes.
(b) Series B Notes. At any time after any Series B
Notes have been declared due and payable pursuant to clause
(b) or clause (c) of Section 12.1, the holders of not less
than a majority in principal amount of the Series B then
outstanding, by written notice to the Company, may rescind
and annul any such declaration and its consequences if
(i) the Company has paid all overdue interest on the Series
B Notes, all principal of and Make-Whole Amount, if any, due
and payable on any Series B Notes 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
Series B Notes, at the Default Rate, (ii) 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
(iii) no judgment or decree has been entered for the payment
of any monies due pursuant hereto or to the Series B Notes.
(c) Effect on Subsequent Events of Default or
Defaults. No rescission and annulment under Section 12.3(a)
or Section 12.3(b) will extend to or affect any subsequent
Event of Default or Default or impair any right consequent
thereon.
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, reasonable attorneys' fees, expenses and
disbursements.
13. REGISTRATION; EXCHANGE; SUBSTITUTION 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.
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 his 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, at the Company's expense
(except as provided below), one or more new Notes (as requested
by the holder thereof) of the same Series 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 Exhibit A1, Exhibit A2 or Exhibit B,
as the case may be. 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 $100,000, 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 $100,000.
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. The Company shall
not be required to recognize any transfer of Notes other than a
transfer effected in accordance with the provisions of this
Section 13.2.
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 an Institutional Investor, 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, in lieu
thereof, a new Note of the same Series, 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.
14. PAYMENTS ON NOTES.
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 Santa Rosa, California at the principal
office of the Company 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 the United
States.
14.2 Home Office Payment.
So long as you or your 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 below your name in Schedule A, or by such other
method or at such other address as you 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, you 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 you or your nominee you will, at your
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 purchased by you
under this Agreement and that has made the same agreement
relating to such Note as you have made in this Section 14.2.
15. EXPENSES, ETC.
15.1 Transaction Expenses.
Whether or not the transactions contemplated hereby are
consummated, the Company will pay all costs and expenses
(including reasonable attorneys' fees of a special counsel and,
if reasonably required, local or other counsel) incurred by you
and each Other Purchaser or holder of a Note 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 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 issued in
connection with this Agreement or the Notes, or by reason of
being a holder of any Note, and (b) the costs and expenses,
including financial advisors' fees, incurred in connection with
the insolvency or bankruptcy of the Company or any Significant
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 you and each other holder of a
Note harmless from, all claims in respect of any fees, costs or
expenses if any, of brokers and finders (other than those
retained by you).
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.
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
Notes, the purchase or transfer by you of any Note or portion
thereof or interest therein and the payment of any Note, and may
be relied upon by any subsequent holder of a Note, regardless of
any investigation made at any time by or on behalf of you or any
other holder of a 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
you and the Company and supersede all prior agreements and
understandings relating to the subject matter hereof.
17. AMENDMENT AND WAIVER.
17.1 Requirements.
(a) Series A1 Notes and Series A2 Notes. So long as
any Series A1 Notes or Series A2 Notes are outstanding, this
Agreement and the Series A1 Notes and Series A2 Notes may be
amended, and the observance of any term hereof or of such
Notes may be waived (either retroactively or prospectively),
with (and only with) the written consent of the Company and
the holders of a majority in principal amount of the Series
A1 Notes and Series A2 Notes at the time outstanding, except
that (i) no amendment or waiver of any of the provisions of
any of Sections 1, 2, 3, 4, 5, 6 and 21, or any defined term
(as it is used therein), will be effective as to you unless
consented to by you in writing, and (ii) no such amendment
or waiver may, without the written consent of the holder of
each Series A1 Note and Series A2 Note 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 change the rate or the time of payment or method of
computation of interest or of the Make-Whole Amount on, the
Series A1 Notes or Series A2 Notes, (B) change the
percentage of the principal amount of the Series A1 Notes
and Series A2 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 and 20.
(b) Series B Notes. So long as any Series B Notes are
outstanding, this Agreement and the Series B Notes may be
amended, and the observance of any term hereof or of such
Notes may be waived (either retroactively or prospectively),
with (and only with) the written consent of the Company and
the holders of a majority in principal amount of the Series
B Notes at the time outstanding, except that (i) no
amendment or waiver of any of the provisions of any of
Sections 1, 2, 3, 4, 5, 6 and 21, or any defined term (as it
is used therein), will be effective as to you unless
consented to by you in writing, and (ii) no such amendment
or waiver may, without the written consent of the holder of
each Series B Note 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 change the rate or
the time of payment or method of computation of interest or
of the Make-Whole Amount on, the Series B Notes, (B) change
the percentage of the principal amount of the Series B 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 and 20.
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 any security, to any holder of Notes as
consideration for or as an inducement to the entering into
by any holder of Notes of any waiver or amendment of any of
the terms and provisions hereof pursuant to Section 17.1(a)
or Section 17.1(b), as the case may be, unless such
remuneration is concurrently paid, or security is
concurrently granted, on the same terms, ratably to each
holder of Notes of any Series affected by such waiver or
amendment, as the case may be, then outstanding even if such
holder did not consent to such waiver or amendment.
17.3 Binding Effect, etc.
Any amendment or waiver consented to as provided in
Section 17.1(a) and Section 17.1(b) applies equally to all
holders of each Series of Notes affected by such amendment or
waiver and is binding upon them and upon each future holder of
any Note of such Series 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.
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.
18. NOTICES.
All notices and communications provided for hereunder shall
be in writing and sent (a) by telecopy 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
registered or certified mail with return receipt requested
(postage prepaid), or (c) by a recognized overnight delivery
service (with charges prepaid). Any such notice must be sent:
(i) if to you or your nominee, to you or it at the
address specified for such communications in Schedule A, or
at such other address as you or it shall have specified to
the Company in writing,
(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, or
(iii) if to the Company,
Optical Coating Laboratory, Inc.
0000 Xxxxxxxxxx Xxxxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000-0000
Attention: Xx.Xxxxx X. Xxxxxxx,
Vice President, Finance and
Chief Financial Officer and
Xxxxxx X. Xxxx, Esq.,
Vice President and Corporate Counsel
Phone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Xxxx X. Xxxxxxxx, Esq.
Xxxxxxxx & Xxxxxxxx
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
or at such other address as the Company shall have furnished
in writing to all holders of the Notes at the time
outstanding.
Notices under this Section 18 will be deemed given only when
actually received.
19. REPRODUCTION OF DOCUMENTS.
This Agreement and all documents relating hereto, including,
without limitation, (a) consents, waivers and modifications that
may hereafter be executed, (b) documents received by you at the
Closing (except the Notes themselves), and (c) financial
statements, certificates and other information previously or
hereafter furnished to you, may be reproduced by you by any
photographic, photostatic, microfilm, microcard, miniature
photographic or other similar process and you 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 you 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.
20. CONFIDENTIAL INFORMATION.
For the purposes of this Section 20, "Confidential
Information" means information delivered to you 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 you 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 you prior
to the time of such disclosure,
(b) subsequently becomes publicly known through no act
or omission by you or any person acting on your behalf,
(c) otherwise becomes known to you other than through
disclosure by the Company or any Subsidiary, or
(d) constitutes financial statements delivered to you
under Section 7.1 that are otherwise publicly available.
You will maintain the confidentiality of such Confidential
Information in accordance with reasonable procedures and
standards adopted by you in good faith to protect confidential
information of third parties delivered to you, provided that you
may deliver or disclose Confidential Information to:
(i) your directors, officers, trustees, employees,
agents, attorneys and affiliates (to the extent such
disclosure reasonably relates to the administration of the
investment represented by your Notes and so long as you
employ reasonable procedures and standards designed to
maintain the confidential nature of all such Confidential
Information that is disclosed to such persons),
(ii) your 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 you sell or
offer 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 you offer 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
Section 20),
(vi) any federal or state regulatory authority having
jurisdiction over you, if disclosure is required by, or in
good faith deemed advisable by you to comply with, any law
or order,
(vii) the National Association of Insurance
Commissioners or any similar organization, or any nationally
recognized rating agency that requires access to information
about your investment portfolio,
(viii) any other Person to which such delivery or
disclosure may be necessary or appropriate (in your good
faith business or legal judgment),
(A) to effect compliance with any law, rule,
regulation or order applicable to you,
(B) in response to any subpoena or other legal
process, or
(C) in connection with any litigation to which
you are a party, or
(D) if an Event of Default has occurred and is
continuing, to the extent you 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 your 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.
21. SUBSTITUTION OF PURCHASER.
You shall have the right to substitute any one of your
Affiliates as the purchaser of the Notes that you have agreed to
purchase hereunder, by written notice to the Company, which
notice shall be signed by both you and such 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 "you"
is used in this Agreement (other than in this Section 21), such
word shall be deemed to refer to such Affiliate in lieu of you.
In the event that such Affiliate is so substituted as a purchaser
hereunder and such Affiliate thereafter transfers to you all of
the Notes then held by such Affiliate, upon receipt by the
Company of notice of such transfer, wherever the word "you" 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 you, and you shall have all the rights of an original
holder of the Notes under this Agreement.
22. MISCELLANEOUS
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.
22.2 Payments Due on Non-Business Days; When
Payments Deemed Received.
(a) 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.
(b) Payments, When Received. Any payment to be made
to the holders of Notes hereunder or under the Notes shall
be deemed to have been made on the Business Day such payment
actually becomes available to such holder at such holder's
bank prior to 12:00 noon (local time of such bank).
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.
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.
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.
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 CONNECTICUT 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.
[Remainder of page intentionally blank. Next page is signature
page.]
If you are in agreement with the foregoing, please sign
the form of agreement on the accompanying counterpart of this
Agreement and return it to the Company, whereupon the foregoing
shall become a binding agreement between you and the Company.
Very truly yours,
OPTICAL COATING LABORATORY, INC.
By
Name:
Title:
The foregoing is hereby
agreed to as of the
date thereof.
[PURCHASER]
By:
Name:
Title:
OPTICAL COATING LABORATORY, INC. NOTE PURCHASE AGREEMENT
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
Purchaser MODERN WOODMEN OF AMERICA
Name
Name in Note is Modern Woodmen of America
Registered
Series; Note Series A1; RA1-1; $4,000,000
Registration Number;
Principal Amount
Description of R-3; $4,000,000
Existing Note
Surrendered for
Cancellation;
Outstanding
Principal Amount
Payment on Account
of Note
Method Federal Funds Wire Transfer
Account The Northern Trust Company
00 Xxxxx XxXxxxx Xxxxxx
Xxxxxxxxxxx Xxxxxxx, XX 00000
Account Name: Modern Woodmen of America
Account No. 84352
Accompanying Name of Company: OPTICAL COATING
Information LABORATORY, INC.
Description of
Security: 8.71% Series A1 Senior
Notes Due June 1, 2002
PPN: 683829 A@ 4
Due Date and Application (as among
principal, Make-Whole Amount and
interest) of the payment being made:
Address for Notices Modern Woodmen of America
Related to Payments Attn: Investment Department
0000 0xx Xxxxxx
Xxxx Xxxxxx, XX 00000
Address for all Modern Woodmen of America
other Notices Attn: Investment Department
0000 0xx Xxxxxx
Xxxx Xxxxxx, XX 00000
Telecopy: (000) 000-0000
Purchaser MODERN WOODMEN OF AMERICA
Name
Other Instructions MODERN WOODMEN OF AMERICA
By_______________________
Name:
Title:
Instructions re Investment Department of Purchaser
Delivery of Notes
Tax Identification 00-0000000
Number
OPTICAL COATING LABORATORY, INC. NOTE PURCHASE AGREEMENT
Schedule A-2
Purchaser AMERICAN LIFE AND CASUALTY INSURANCE
Name COMPANY
Name in Which Note Xxxxxxx & Co.
is Registered
Series; Note Series A1; RA1-2; $2,400,000
Registration Number;
Principal Amount
Description of R-4; $2,400,000
Existing Note
Surrendered for
Cancellation;
Outstanding
Principal Amount
Payment on Account
of Note
Federal Funds Wire Transfer
Method
Care of Banker's Trust
Account ABA #000000000
Information Account No. 00000000
Attention: FFC: American Life and
Casualty Insurance Company
99810
Accompanying Name of Company: OPTICAL COATING
Information LABORATORY, INC.
Description of
Security: 8.71% Series A1 Senior
Notes Due June 1, 2002
PPN: 683829 A@ 4
Due Date and Application (as among
principal, Make-Whole Amount and
interest) of the payment being made:
Address for Notices American Life and Casualty Insurance
Related to Payments Company
00000 X. Xxxxxxxxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxx, XX 00000
Attn: Xxx Xxxxx
Telephone: 000-000-0000
Fax: 000-000-0000
Address for all American Life and Casualty Insurance
other Notices Company
OPTICAL COATING LABORATORY, INC. NOTE PURCHASE AGREEMENT
Schedule A-3
Purchaser AMERICAN LIFE AND CASUALTY INSURANCE
Name COMPANY
00000 X. Xxxxxxxxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxx, XX 00000
Attn: Xxx Xxxxx
Telephone: 000-000-0000
Fax: 000-000-0000
Other Instructions AMERICAN LIFE AND CASUALTY INSURANCE
COMPANY
By_______________________
Name:
Title:
Instructions re Law Department of Purchaser
Delivery of Notes
Tax Identification 00-0000000
Number
OPTICAL COATING LABORATORY, INC. NOTE PURCHASE AGREEMENT
Schedule A-4
Purchaser MASSACHUSETTS MUTUAL LIFE INSURANCE
Name COMPANY
Name in Which Note Massachusetts Mutual Life Insurance
is Registered Company
Series; Note Series A2; RA2-1; $8,000,000
Registration Number;
Principal Amount
Description of
Existing,Notes R-2; $4,000,000
Surrendered for
Cancellation;
Outstanding
Payment on Account
of Note
Federal Funds Wire Transfer
Method
Chase Manhattan Bank, N.A.
Account 4 Chase MetroTech Center
Information Xxx Xxxx, XX 00000
ABA No.: 000000000
For Segment 43 - Par Whole Life
Account No. 000-0-000000
Re: See "Accompanying information" below
With telephone advice of payment to the
Securities Custody and Collection
Department of Massachusetts Mutual Life
Insurance Company at (000) 000-0000
Accompanying Name of Company: OPTICAL COATING
Information LABORATORY, INC.
Description of
Security: 7.80% Series A2 Senior
Note Due July 31, 2008
PPN: 683829 A# 2
Due Date and Application (as among
principal, Make-Whole Amount and
interest) of the payment being made:
Address for Notices Massachusetts Mutual Life
Related to Payments Insurance Company
0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attn: Securities Custody and
Collection Department, F 381
OPTICAL COATING LABORATORY, INC. NOTE PURCHASE AGREEMENT
Schedule A-5
Purchaser MASSACHUSETTS MUTUAL LIFE INSURANCE
Name COMPANY
Address for all Massachusetts Mutual Life
other Notices Insurance Company
0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attn: Securities Investment Division
Xxxxxxxx X. Xxxxxxxx, Managing
Director
Other Instructions MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY
By_______________________
Name:
Title:
Instructions re Law Department of Purchaser
Delivery of Notes
Tax Identification 00-0000000
Number
OPTICAL COATING LABORATORY, INC. NOTE PURCHASE AGREEMENT
Schedule A-6
Purchaser MASSACHUSETTS MUTUAL LIFE INSURANCE
Name COMPANY
Name in Which Note Massachusetts Mutual Life Insurance
is Registered Company
Series; Note Series B; RB-1; $12,500,000
Registration Number;
Principal Amount
Payment on Account
of Note
Federal Funds Wire Transfer
Method
Citibank, N.A.
Account 000 Xxxx Xxxxxx
Xxxxxxxxxxx Xxx Xxxx, XX 00000
ABA No. 000000000
For MassMutual Long Term Pool
Account No. 4067-3488
Re: See "Accompanying information" below
With telephone advice of payment to the
Securities Custody and Collection
Department of Massachusetts Mutual Life
Insurance Company at (000) 000-0000
Accompanying Name of Company: OPTICAL COATING
Information LABORATORY, INC.
Description of
Security: 6.69% Series B Senior
Notes Due July 31, 2008
PPN: 683829 B* 5
Due Date and Application (as among
principal, Make-Whole Amount and
interest) of the payment being made:
Address for Notices Massachusetts Mutual Life
Related to Payments Insurance Company
0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attn: Securities Custody and
Collection Department, F 381
Address for all Massachusetts Mutual Life
other Notices Insurance Company
0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attn: Securities Investment Division
OPTICAL COATING LABORATORY, INC. NOTE PURCHASE AGREEMENT
Schedule A-7
Purchaser MASSACHUSETTS MUTUAL LIFE INSURANCE
Name COMPANY
Xxxxxxxx X. Xxxxxxxx, Managing
Director
Other Instructions MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY
By_______________________
Name:
Title:
Instructions re Law Department of Purchaser
Delivery of Notes
Tax Identification 00-0000000
Number
OPTICAL COATING LABORATORY, INC. NOTE PURCHASE AGREEMENT
Schedule A-8
Purchaser MASSACHUSETTS MUTUAL LIFE INSURANCE
Name COMPANY
Name in Which Note Massachusetts Mutual Life Insurance
is Registered Company
Series; Note Series B; RB-2; $2,500,000
Registration Number;
Principal Amount
Payment on Account
of Note
Federal Funds Wire Transfer
Method
Chase Manhattan Bank, N.A.
Account 4 Chase MetroTech Center
Information Xxx Xxxx, XX 00000
ABA No.: 000000000
For MassMutual Pension Management
Account No. 910-0000000
Re: See "Accompanying information" below
With telephone advice of payment to the
Securities Custody and Collection
Department of Massachusetts Mutual Life
Insurance Company at (000) 000-0000
Accompanying Name of Company: OPTICAL COATING
Information LABORATORY, INC.
Description of
Security: 6.69% Series B Senior
Notes Due July 31, 2008
PPN: 683829 B* 5
Due Date and Application (as among
principal, Make-Whole Amount and
interest) of the payment being made:
Address for Notices Massachusetts Mutual Life
Related to Payments Insurance Company
0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attn: Securities Custody and
Collection Department
F 381
Address for all Massachusetts Mutual Life Insurance
other Notices Company
0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
OPTICAL COATING LABORATORY, INC. NOTE PURCHASE AGREEMENT
Schedule A-9
Purchaser MASSACHUSETTS MUTUAL LIFE INSURANCE
Name COMPANY
Attn: Securities Investment Division
Xxxxxxxx X. Xxxxxxxx, Managing
Director
Other Instructions MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY
By_______________________
Name:
Title:
Instructions re Law Department of Purchaser
Delivery of Notes
Tax Identification 00-0000000
Number
OPTICAL COATING LABORATORY, INC. NOTE PURCHASE AGREEMENT
Schedule A-10
Purchaser MASSACHUSETTS MUTUAL LIFE INSURANCE
Name COMPANY
Name in Which Note Massachusetts Mutual Life Insurance
is Registered Company
Series; Note Series B; RB-3; $3,000,000
Registration Number;
Principal Amount
Payment on Account
of Note
Federal Funds Wire Transfer
Method
Citibank, N.A.
Account 000 Xxxx Xxxxxx
Xxxxxxxxxxx Xxx Xxxx, XX 00000
ABA No. 000000000
For MassMutual B-14
Account No. 4065-5546
Re: See "Accompanying information" below
With telephone advice of payment to the
Securities Custody and Collection
Department of Massachusetts Mutual Life
Insurance Company at (000) 000-0000
Accompanying Name of Company: OPTICAL COATING
Information LABORATORY, INC.
Description of
Security: 6.69% Series B Senior
Notes Due July 31, 2008
PPN: 683829 B* 5
Due Date and Application (as among
principal, Make-Whole Amount and
interest) of the payment being made:
Address for Notices Massachusetts Mutual Life
Related to Payments Insurance Company
0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attn: Securities Custody and
Collection Department, F 381
Address for all Massachusetts Mutual Life
other Notices Insurance Company
0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attn: Securities Investment Division
OPTICAL COATING LABORATORY, INC. NOTE PURCHASE AGREEMENT
Schedule A-11
Purchaser MASSACHUSETTS MUTUAL LIFE INSURANCE
Name COMPANY
Xxxxxxxx X. Xxxxxxxx, Managing Director
Other Instructions MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY
By_______________________
Name:
Title:
Instructions re Law Department of Purchaser
Delivery of Notes
Tax Identification 00-0000000
Number
OPTICAL COATING LABORATORY, INC. NOTE PURCHASE AGREEMENT
Schedule A-12
Purchaser BAYSTATE HEALTH SYSTEMS, INC.
Name
Name in Which Note MAC & Co.
is Registered
Series; Note Series B; RB-4; $500,000
Registration Number;
Principal Amount
Payment on Account
of Note
Federal Funds Wire Transfer
Method
Boston Safe Deposit and Trust Company
Account ABA No. 000000000
Information DDA No. 048771
Ref: Baystate Health Systems
Intermediate Aggregate
A/C #BPOF3001002
Re: See "Accompanying information" below
With telephone advice of payment to the
Securities Custody and Collection
Department of Massachusetts Mutual Life
Insurance Company at (000) 000-0000
Accompanying Name of Company: OPTICAL COATING
Information LABORATORY, INC.
Description of
Security: 6.69% Series B Senior
Notes Due July 31, 2008
PPN: 683829 B* 5
Due Date and Application (as among
principal, Make-Whole Amount and
interest) of the payment being made:
Address for Notices Baystate Health Systems, Inc.
Related to Payments c/o Massachusetts Mutual Life
Insurance Company
0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attn: Securities Custody and
Collection Department, F 381
Address for all Baystate Health Systems, Inc.
other Notices c/o Massachusetts Mutual Life Insurance
Company
0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attn: Securities Investment Division
Xxxxxxxx X. Xxxxxxxx, Managing
Director
OPTICAL COATING LABORATORY, INC. NOTE PURCHASE AGREEMENT
Schedule A-13
Purchaser BAYSTATE HEALTH SYSTEMS, INC.
Name
Other Instructions BAYSTATE HEALTH SYSTEMS, INC.
By Massachusetts Mutual Life
Insurance Company, as Investment
Adviser
By_______________________
Name:
Title:
Instructions re Law Department of Purchaser
Delivery of Notes
Tax Identification 00-0000000
Number
OPTICAL COATING LABORATORY, INC. NOTE PURCHASE AGREEMENT
Schedule A-14
Purchaser PRINCIPAL LIFE INSURANCE COMPANY
Name
Name in Which Note Principal Life Insurance Company
is Registered
Series; Note Series B; RB-5; $11,500,000
Registration Number;
Principal Amount
Payment on Account
of Note
Federal Funds Wire Transfer (by 12:00
Method Noon New York City time)
Account Norwest Bank Iowa, N.A.
Information 0xx xxx Xxxxxx Xxxxxxx
Xxx Xxxxxx, XX 00000
ABA # 000000000
For credit to Principal Life Insurance
Company
Account No. 014752
OBI PFGSE (S)B0061658()
Re: See "Accompanying Information" below
Accompanying Name of Company: OPTICAL COATING
Information LABORATORY, INC.
Description of
Security: 6.69% Series B Senior
Notes Due July 31, 2008
PPN: 683829 B* 5
Due Date and Application (as among
principal, Make-Whole Amount and
interest) of the payment being made:
Address for Notices Principal Life Insurance Company
Related to Payments 000 Xxxx Xxxxxx
Xxx Xxxxxx, XX 00000-0000
Attn: Investment Accounting - Securities
Fax: 000-000-0000
Confirmation: 000-000-0000
Address for all Principal Life Insurance Company
other Notices 000 Xxxx Xxxxxx
Xxx Xxxxxx, XX 00000-0000
Attn: Investment - Securities
Fax: 000-000-0000
Confirmation: 000-000-0000
Other Instructions PRINCIPAL LIFE INSURANCE COMPANY
OPTICAL COATING LABORATORY, INC. NOTE PURCHASE AGREEMENT
Schedule A-15
Purchaser PRINCIPAL LIFE INSURANCE COMPANY
Name
By_______________________
Name:
Title:
By_______________________
Name:
Title:
Instructions re Xxxxx Xxxxxxx Xxx, Esq.
Delivery of Notes Principal Life Insurance Company
000 Xxxx Xxxxxx
Xxx Xxxxxx, XX 00000-0000
Tax Identification 00-0000000
Number
OPTICAL COATING LABORATORY, INC. NOTE PURCHASE AGREEMENT
Schedule B-16
SCHEDULE B
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, a Person (other than a
Restricted Subsidiary)
(a) that directly or indirectly through one or more
intermediaries Controls, or is Controlled by, or is under
common Control with, the Company,
(b) that beneficially owns or holds 10% or more of any
class of the Voting Stock of the Company,
(c) 10% or more of the Voting Stock (or in the case of
a Person that is not a corporation, 10% or more of the
equity interest) of which is beneficially owned or held by
the Company or a Subsidiary, or
(d) that is an officer or director (or a member of the
immediate family of an officer or director) of the Company
or any Subsidiary,
at such time.
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.
"Agreement, this" is defined in Section 17.3.
"Asset Disposition" means any Transfer except:
(a) any Transfer from the Company to a Wholly-Owned
Restricted Subsidiary, and any Transfer from a Restricted
Subsidiary to the Company or to a Wholly-Owned Restricted
Subsidiary,
(b) any Transfer made in the ordinary course of
business and involving only property that is either (i)
inventory held for sale or (ii) equipment, fixtures,
supplies or materials no longer required in the operation of
the business of the Company or any of its Restricted
Subsidiaries, or that is obsolete,
(c) a Transfer as part of a Sale-and-Leaseback
Transaction,
(d) Transfers of miscellaneous items of property
having an individual current book value of less $1,000,000,
so long as the aggregate book value of all property subject
to Transfers during any fiscal year of the Company pursuant
to this clause (d) does not exceed $2,000,000 for such
fiscal year, and
(e) Transfers of property in connection with an
exchange of property by the Company or a Restricted
Subsidiary with another Person, so long as the property
received by the Company or such Restricted Subsidiary in
such exchange shall have a substantially similar business
use as, and a Fair Market Value equal to or greater than the
Fair Market Value of, the property subject to such Transfer.
"Attributable Debt" means, at any time, with respect to the
Company or any Restricted Subsidiary, the present value of all
Operating Rentals required to be paid by the Company or such
Restricted Subsidiary under each lease created pursuant to a
Sale-and-Leaseback Transaction during the then remaining term
thereof (determined in accordance with generally accepted
financial practice using a discount factor equal to the interest
rate implicit in such lease if known or, if not known, of 6.69%
per annum).
"Business Day" means, at any time, a day other than a
Saturday, a Sunday or a day on which the bank designated by the
holder of a Note to receive (for such holder's account) payments
on such Note is required by law (other than a general banking
moratorium or holiday for a period exceeding four consecutive
days) 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.
"Capital Stock" means any class of capital stock, share
capital or similar equity interest of a 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" is defined in the introductory sentence of this
Agreement.
"Confidential Information" is defined in Section 20.
"Consolidated Adjusted Net Worth" means, at any time,
(a) the sum of
(i) the par value (or value stated on the books
of the corporation) at such time of the Capital Stock
of the Company, plus (or minus in the case of a
deficit), plus
(ii) the amount of the paid-in surplus of the
Company at such time, plus (or minus in the case of a
deficit), plus
(iii) the amount of the retained earnings of
the Company at such time; minus
(b) the net book value at such time (after deducting
related depreciation, obsolescence, amortization, valuation
and other proper reserves) of all Intangible Assets of the
Company and its Restricted Subsidiaries, other than Excluded
Intangible Assets,
in each case, as would appear on a consolidated balance sheet for
the Company and its Restricted Subsidiaries at such time prepared
in accordance with GAAP.
As used in this definition:
Intangible Assets -- with respect to any Person, at any
time, means the following:
(a) deferred assets, other than prepaid expenses
which are refundable (including, without limitation,
insurance and prepaid taxes);
(b) patents, copyrights, trademarks, trade names,
service marks, brand names, franchises, goodwill,
experimental expenses and other similar intangibles;
(c) unamortized debt discount and expense;
(d) lease rights; and
(e) all other property which would be considered
to be intangible under GAAP.
Excluded Intangible Assets -- means, at any time,
(a) all Intangible Assets of the Company and its
Restricted Subsidiaries existing on the date of the
Closing as would appear on a consolidated balance sheet
for such Persons on the date of the Closing prepared in
accordance with GAAP, and
(b) all Intangible Assets of the Company and its
Restricted Subsidiaries in respect of prepaid
royalties, patents, copyrights, trademarks, trade
names, service marks and brand names not in existence
on the date of the Closing, as would appear on a
consolidated balance sheet for such Persons at such
time prepared in accordance with GAAP.
"Consolidated Fixed Charges" means, for any period, the sum
of
(a) Consolidated Interest Expense, plus
(b) Consolidated Operating Rental Expense,
in each case, determined for such period.
"Consolidated Interest Expense" means, for any period, the
aggregate amount of interest accrued or capitalized on, or with
respect to, Consolidated Total Indebtedness for such period,
including, without limitation, amortization of debt discount,
imputed interest on Capital Leases and interest on the Notes.
"Consolidated Net Income" means, for any period, net
earnings (or loss) after income taxes of the Company and its
Restricted Subsidiaries for such period, determined on a
consolidated basis for such Persons in accordance with GAAP, but
excluding:
(a) net earnings (or loss) of any Person accrued prior
to the date such Person became a Restricted Subsidiary or
was merged into or consolidated with the Company or a
Restricted Subsidiary;
(b) any extraordinary, unusual or nonrecurring gains
or losses;
(c) any gain arising from any reappraisal or write-up
of assets;
(d) any portion of the net earnings of any Restricted
Subsidiary that, by reason of any contract, charter
restriction, applicable law or regulation, is unavailable
for payment of dividends to the Company or a Restricted
Subsidiary;
(e) any gain or loss (net of tax effects applicable
thereto) during such period resulting from the receipt of
any proceeds of any insurance policy, other than Permitted
Insurance Proceeds for such period;
(f) any earnings of any Person acquired by the Company
or any Restricted Subsidiary through purchase, merger or
consolidation or otherwise, or earnings of any Person
substantially all of whose assets have been acquired by the
Company or any Restricted Subsidiary, for any period prior
to the date of acquisition;
(g) net earnings of any Person (other than a
Restricted Subsidiary) in which the Company or any
Restricted Subsidiary shall have an ownership interest
unless such net earnings shall have actually been received
by the Company or such Restricted Subsidiary in the form of
cash distributions;
(h) any gain or loss arising from the acquisition of
any Securities of the Company or any Restricted Subsidiary;
(i) any portion of the net earnings of the Company and
its Restricted Subsidiaries that cannot be freely converted
into United States dollars; and
(j) any gain or loss reflected in such net earnings
for such period that results solely from adjustments to net
earnings from prior periods due to the cumulative effect of
changes in any accounting principles required by GAAP.
"Consolidated Net Income Available for Fixed Charges" means,
for any period, the sum of
(a) Consolidated Net Income, plus
(b) the aggregate amount of
(i) income taxes, and
(ii) Consolidated Fixed Charges,
(to the extent, and only to the extent, that such
aggregate amount was deducted in the computation of
Consolidated Net Income),
in each case accrued for such period by the Company and its
Restricted Subsidiaries, determined on a consolidated basis for
such Persons.
"Consolidated Operating Rental Expense" means, with respect
to any period, the aggregate amount of Operating Rentals accrued
for such period on, or with respect to, Long-Term Operating
Leases of the Company and its Restricted Subsidiaries (other than
Long-Term Operating Leases between the Company and any Restricted
Subsidiary or between Restricted Subsidiaries), determined on a
consolidated basis for such Persons for such period in accordance
with GAAP.
As used in this definition:
"Excluded Lease" means
(a) any Capital Lease, and
(b) any lease (whether or not a Capital Lease) of
word processing, data, communications, computer and
office equipment.
"Long-Term Operating Lease" means any Operating Lease
with an original term of more than three years (including
any extension of such term at the option of the lessor) and
that is not cancelable during such term at the option of the
lessee without incurrence by the lessee of a cancellation
charge or similar liability.
"Operating Lease" means any lease other than an
Excluded Lease.
"Consolidated Total Assets" means, at any time, the total
amount of all assets of the Company and its Restricted
Subsidiaries, determined on a consolidated basis for such Persons
at such time in accordance with GAAP.
"Consolidated Total Capitalization" means, at any time, the
sum of
(a) Consolidated Total Debt, plus
(b) Consolidated Adjusted Net Worth,
in each case, determined at such time.
"Consolidated Total Debt" means, at any time, the total
amount of all Debt of the Company and its Restricted
Subsidiaries, determined on a consolidated basis for such Persons
at such time in accordance with GAAP.
"Consolidated Total Indebtedness" means, at any time, the
total amount of all Indebtedness of the Company and its
Restricted Subsidiaries, determined on a consolidated basis for
such Persons at such time in accordance with GAAP.
"Debt" means, with respect to any Person, without
duplication,
(a) its liabilities for borrowed money (whether or not
evidenced by a Security);
(b) its liabilities for the deferred purchase price of
property acquired by such Person (excluding accounts payable
arising in the ordinary course of business but including all
liabilities created or arising under any conditional sale or
other title retention agreement with respect to any such
property);
(c) 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);
(d) its Capital Lease Obligations;
(e) Swaps of such Person; and
(f) its Guaranties (other than Excluded Guaranties) of
any liabilities of another Person constituting liabilities
of a type set forth in clause (a) through clause (e),
inclusive;
in each case, at such time, provided that trade accounts payable
incurred by such Person in the ordinary course of business shall
not constitute "Debt."
"Debt Prepayment Application" means, with respect to any
Transfer of property by the Company or any Restricted Subsidiary,
the application by the Company or such Restricted Subsidiary of
cash in an amount equal to the Net Proceeds Amount with respect
to such Transfer to pay Senior Debt of the Company or such
Restricted Subsidiary (other than Senior Debt owing to any of the
Restricted Subsidiaries or any Affiliate and Senior Debt in
respect of any revolving credit or similar facility providing the
Company or such Restricted Subsidiary with the right to obtain
loans or other extensions of credit from time to time, except to
the extent that in connection with such payment of Senior Debt
the availability of credit under such credit facility is
permanently reduced by an amount not less than the amount of such
proceeds applied to the payment of such Senior Debt), provided
that in the course of making such application the Company shall
offer to prepay each outstanding Note in accordance with Section
10.10(b) in a principal amount that equals the Ratable Portion
for such Note. If any holder of a Note fails to accept such
offer of prepayment, then, for purposes of the preceding sentence
only, the Company nevertheless will be deemed to have paid Senior
Debt in an amount equal to the Ratable Portion for such Note.
As used in this definition,
"Ratable Portion" means, for any Note, an amount equal
to the product of
(a) the Net Proceeds Amount being so offered to
the payment of Senior Debt, multiplied by
(b) a fraction the numerator of which is the
outstanding principal amount of such Note and the
denominator of which is the aggregate outstanding
principal amount of Senior Debt of the Company and its
Restricted Subsidiaries.
"Debt Prepayment Application Date" is defined in Section
10.10(b).
"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 of any
Series, that rate of interest per annum that is the lesser of
(a) 1% per annum above the rate of interest stated in clause (a)
of the first paragraph of the Notes of such Series or (ii) the
highest rate allowed by applicable law.
"Disposition Value" means, at any time, with respect to any
property
(a) in the case of property that does not constitute
Restricted Subsidiary Stock, the book value thereof, valued
at the time of such disposition in good faith by the
Company, and
(b) in the case of property that constitutes
Restricted Subsidiary Stock, an amount equal to that
percentage of book value of the assets of the Restricted
Subsidiary that issued such stock as is equal to the
percentage that the book value of such Restricted Subsidiary
Stock represents of the book value of all of the outstanding
Capital Stock of such Restricted Subsidiary (assuming, in
making such calculations, that all Securities convertible
into such Capital Stock are so converted and giving full
effect to all transactions that would occur or be required
in connection with such conversion) determined at the time
of the disposition thereof, in good faith by the Company.
"Distribution" means, without duplication, with respect to
any corporation:
(a) any dividend or other distribution, direct or
indirect, on account of any shares of Capital Stock of such
corporation now or hereafter outstanding, whether in cash or
other property, except a dividend or other distribution
payable solely in shares of Capital Stock of such Person;
and
(b) any redemption, retirement, purchase or other
acquisition, direct or indirect, of any shares of Capital
Stock of such corporation now or hereafter outstanding,
including, without limitation, any deferred payment made by
such corporation in connection with the acquisition of its
Capital Stock, or of any warrants, rights or options to
acquire any shares of such Capital Stock.
"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.
"Excess Proceeds Amount" means, in respect of any fiscal
year, an aggregate amount equal to (x) one hundred percent (100%)
of the Net Proceeds Amount in respect of all Transfers of
property by the Company and the Restricted Subsidiaries during
such fiscal year, minus (y) an amount, expressed in Dollars,
equal to the Specified Asset Percentage in respect of such fiscal
year.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time.
"Excluded Guaranty" means any Guaranty in effect on the date
of the Closing and described in Schedule 5.15 under the caption
"Existing Guaranties," and any renewal or extension (as to time)
in respect of any such Guaranty, provided that the aggregate
amount of the obligations of the Company or any Restricted
Subsidiary thereunder is not increased,
(a) in the case of the "Existing Guaranty" by the
Company in favor of Hakuto Co., Ltd. with respect to the
obligations of Hakuto-OCLI Co., Ltd., above an amount equal
to $3,000,000; and
(b) in the case of the other "Existing Guaranties,"
above the maximum amount of the liquidated and contingent
obligations of the Company and its Restricted Subsidiaries
thereunder immediately prior to such renewal or extension.
"Excluded Restricted Subsidiary Indebtedness" means at any
time (without duplication):
(a) Indebtedness of a Restricted Subsidiary owing to
the Company or to a Wholly-Owned Restricted Subsidiary,
(b) Indebtedness of a Restricted Subsidiary
outstanding on the date of the Closing and identified on
Schedule 5.15 under the caption "Existing Restricted
Subsidiary Indebtedness,"
(c) Indebtedness of a Restricted Subsidiary secured
by, and in respect of, Liens permitted pursuant to, and
created in accordance with, the provisions of Section
10.6(a)(vii), and
(d) Indebtedness of a Restricted Subsidiary incurred
by any Person prior to the date on which such Person shall
have become a Restricted Subsidiary or shall have been
merged with or into, or consolidated with, a Restricted
Subsidiary, so long as such Indebtedness was not incurred in
contemplation of such Person becoming, merging with or into
or consolidating with, a Restricted Subsidiary,
in each case, at such time.
"Existing Note Purchase Agreement" is defined in Section
1.1.
"Existing Noteholders" is defined in Section 1.1.
"Existing Notes" is defined in Section 1.1.
"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).
"Foreign Pension Plan" means any plan, fund or other similar
program that is
(a) established or maintained outside of the United
States of America by any one or more of the Company or its
Subsidiaries primarily for the benefit of the employees
(substantially all of whom are aliens not residing in the
United States of America) of the Company or such
Subsidiaries which plan, fund or other similar program
provides for retirement income for such employees or results
in a deferral of income for such employees in contemplation
of retirement, and
(b) not otherwise subject to ERISA.
"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
Restricted Subsidiary conducts all or any part of its
business, or that asserts jurisdiction over any
properties of the Company or any Restricted 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 indebtedness, 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 indebtedness or obligation or any
property constituting security therefor;
(b) to advance or supply funds (i) for the purchase or
payment of such indebtedness 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 indebtedness or obligation;
(c) to lease properties or to purchase properties or
services primarily for the purpose of assuring the owner of
such indebtedness or obligation of the ability of any other
Person to make payment of the indebtedness or obligation; or
(d) otherwise to assure the owner of such indebtedness
or obligation against loss in respect thereof.
In any computation of the indebtedness or other liabilities of
the obligor under any Guaranty, the indebtedness or other
obligations that are the subject of such Guaranty shall be
assumed to be direct obligations of such obligor.
"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 is 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.
"Indebtedness" means, with respect to any Person at any
time, without duplication:
(a) its liabilities for borrowed money (whether or not
evidenced by a Security);
(b) its liabilities for the deferred purchase price of
property acquired by such Person (excluding accounts payable
arising in the ordinary course of business but including all
liabilities created or arising under any conditional sale or
other title retention agreement with respect to any such
property);
(c) its obligations in respect of Redeemable Stock;
(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);
(e) its Capital Lease Obligations;
(f) the present value of all payments due under any
arrangement for retention of title or any conditional sale
agreement (other than a Capital Lease{xe "Capital Lease"}),
in each case discounted in accordance with GAAP;
(g) obligations of such Person in respect of letters
of credit, acceptances, performance bonds or instruments
serving a similar function issued or accepted by banks or
other financial institutions for the account of such Person
(other than obligations in respect of any such instruments
relating to, or in support of, trade payables of such
Person);
(h) Swaps of such Person; and
(i) its Guaranties (other than Excluded Guaranties) of
any liabilities of another Person constituting liabilities
of a type set forth in clause (a) through clause (h),
inclusive;
in each case, at such time, provided that trade accounts payable
incurred by such Person in the ordinary course of business shall
not constitute "Indebtedness."
"Institutional Investor" means (a) any original purchaser of
a Note, (b) any holder of a Note holding more than 5% 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.
"Investment" means any investment, made in cash or by
delivery of property, by the Company or any Restricted
Subsidiary:
(a) in any Person, whether by acquisition of stock,
Indebtedness or other obligation or Security, or by loan,
Guaranty, advance, capital contribution or otherwise; or
(b) in any property.
"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 or Capital Lease, upon or with
respect to any property or asset of such Person (including in the
case of stock, stockholder agreements, voting trust agreements
and all similar arrangements). The term "Lien" does not include
negative pledge clauses in agreements relating to the borrowing
of money.
"Make-Whole Amount" is defined in Section 8.6.
"Material" means material in relation to the business,
operations, affairs, financial condition, assets, properties, or
prospects 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.
"Multiemployer Plan" means any Plan that is a "multiemployer
plan" (as such term is defined in section 4001(a)(3) of ERISA).
"Net Proceeds Amount" means, with respect to any Transfer of
any property by any Person, an amount equal to the difference of
(a) the aggregate amount of the consideration (valued
at the Fair Market Value of such consideration at the time
of the consummation of such Transfer) received by such
Person in respect of such Transfer, minus
(b) all ordinary and reasonable out-of-pocket costs
and expenses actually incurred by such Person in connection
with such Transfer (including, without limitation, all taxes
payable in connection with such Transfer).
"Note Exchange" is defined in Section 1.2(a).
"Notes" is defined in Section 1.2(c).
"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.
"Operating Rentals" means, with respect to any period, the
sum of the minimum amount of rental and other obligations
required to be paid during such period by the Company or any
Restricted Subsidiary as lessee under all leases of real or
personal property (other than Capital Leases), excluding any
amounts required to be paid by the lessee (whether or not therein
designated as rental or additional rental) (a) which are on
account of maintenance and repairs, insurance, taxes,
assessments, water rates and similar charges, or (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.
"Other Agreements" is defined in Section 2.3.
"Other Purchasers" is defined in Section 2.3.
"Payment Date" is defined in Section 8.6.
"PBGC" means the Pension Benefit Guaranty Corporation
referred to and defined in ERISA or any successor thereto.
"Permitted Insurance Proceeds" means with respect to any
period, (a) proceeds of insurance received during such period
from business interruption coverage, and (b) proceeds of any
insurance received during such period as a settlement of any
property loss or a reimbursement of any expenses related thereto
in an amount not in excess of the amount of such loss or expenses
that is required to be reflected as a loss in the net earnings of
the Company and its Restricted Subsidiaries, determined on a
consolidated basis for such Persons in accordance with GAAP,
provided that such insurance proceeds were received within four
fiscal quarters of the time such loss or expenses, as the case
may be, were reflected in such net earnings.
"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 or any ERISA
Affiliate or with respect to which the Company or any ERISA
Affiliate may have any liability.
"Preferred Stock" means any class of Capital Stock of a
corporation that is preferred over any other class of Capital
Stock of such corporation as to the payment of dividends or the
payment of any amount upon liquidation or dissolution of such
corporation.
"Priority Indebtedness" means, at any time, without
duplication, the sum of
(a) all Indebtedness of the Company secured by any
Lien on any property of the Company or any Restricted
Subsidiary outstanding at such time, other than any such
Indebtedness secured by Liens permitted by any one or more
of clauses (a)(i) through (a)(vii), inclusive, of Section
10.6, or clause (a)(ix) of Section 10.6 (unless such
Indebtedness is a renewal, extension (as to time) or
refinancing of Indebtedness secured by a Lien described in
clause (viii) of Section 10.6(a)), plus
(b) Total Restricted Subsidiary Indebtedness
outstanding at such time, plus
(c) all issued and outstanding Preferred Stock of the
Restricted Subsidiaries at such time (valued at the greater
of its voluntary or involuntary liquidation price at such
time, but exclusive of accrued dividends), plus
(d) all Attributable Debt of the Company and its
Restricted Subsidiaries outstanding at such time.
"property or properties" means, unless otherwise
specifically limited, real or personal property of any kind,
tangible or intangible, xxxxxx or inchoate.
"Property Reinvestment Application" means, with respect to
any Transfer of property, the application of an amount equal to
the Net Proceeds Amount with respect to such Transfer to the
acquisition by the Company or any Restricted Subsidiary of
operating assets of the Company or any Restricted Subsidiary of a
nature generally similar, and a value at least equivalent, to the
property subject to such Transfer.
"PTE" is defined in Section 6.2(a).
"Purchase Money Lien" means:
(a) a Lien (including, without limitation, a Lien
arising in connection with a Capital Lease) held by any
Person (whether or not the seller of such property) on
property acquired, constructed or improved by the Company or
any Restricted Subsidiary, which Lien secures all or a
portion of the related purchase price or construction costs
of such property, provided that
(i) such Lien
(A) is created contemporaneously with,
or within two hundred seventy (270) days of,
such acquisition or improvement, or the
completion of such construction,
(B) encumbers only property purchased,
constructed or improved after the date of the
Closing and acquired, constructed or improved
with the proceeds of the Indebtedness secured
thereby, and
(C) is not thereafter extended to any
other property; and
(ii) after giving effect to the creation of such
Lien, and to any concurrent transactions, no Default or
Event of Default would exist;
(b) Liens existing on property acquired by the Company
or a Restricted Subsidiary after the date of the Closing
which Liens existed at the time of such acquisition,
provided that
(i) such Liens
(A) were not placed on such property,
and do not secure Indebtedness created,
incurred, issued or assumed,
contemporaneously with or in any manner in
contemplation of, the acquisition of such
property by the Company or such Restricted
Subsidiary, and
(B) do not extend to any other property
of the Company or any Restricted Subsidiary
after such acquisition, and
(ii) after giving effect to such acquisition, and
to any concurrent transactions, no Default or Event of
Default would exist; and
(c) Liens existing on the property, Capital Stock or
Indebtedness of a Person at the time such Person becomes a
Restricted Subsidiary or is merged into or consolidated with
the Company or a Restricted Subsidiary, or all or
substantially all of the property, Capital Stock or
Indebtedness of such Person is sold, leased or otherwise
disposed of to the Company or another Restricted Subsidiary,
provided that
(i) such Lien shall only extend to or cover any
property owned by such Person, or Capital Stock or
Indebtedness issued or created by such Person, prior to
the time such Person became a Restricted Subsidiary, or
prior to such merger, consolidation, sale or other
disposition,
(ii) such Lien was not created in contemplation of
any such transaction, and
(iii) after giving effect to such transaction,
and to any concurrent transactions, no Default or Event
of Default would exist.
"QPAM Exemption" is defined in Section 6.2(d).
"Qualified Proceeds Application" means the application by
the Company or a Restricted Subsidiary of the Excess Proceeds
Amount with respect to Transfers described in Section 10.10(b) to
either (or both) of the following:
(a) the acquisition of operating assets of the
Company or any Restricted Subsidiary of a similar nature to
be used in the ordinary course of business of such Person
described in Section 10.1 (as determined in the good faith
opinion of the Board of Directors of the Company or such
Restricted Subsidiary, as the case may be); or
(b) to pay the outstanding principal of, and the
applicable premium (if any) on, Senior Debt of the Company
or any Restricted Subsidiary (other than Senior Debt held by
the Company, any Restricted Subsidiary or any Affiliate or
Senior Debt in respect of any revolving credit or similar
credit facility providing the Company or any Restricted
Subsidiary with the right to obtain loans or other
extensions of credit from time to time, except to the extent
that in connection with such payment of Senior Debt the
availability of credit under such credit facility is
permanently reduced by an amount not less than the amount of
such proceeds applied to the payment of such Senior Debt).
To the extent that any such proceeds are applied as provided
in clause (b) of this definition and such Senior Debt to be
repaid is Senior Debt evidenced by the Notes, the Company shall
comply with the provisions of Section 8.2 in respect of such
prepayment.
"Redeemable Stock" means, with respect to any Person, each
share of such Person's Capital Stock that is:
(a) redeemable, payable or required to be purchased or
otherwise retired or extinguished, or convertible into
indebtedness of such Person
(i) at a fixed or determinable date, whether by
operation of a sinking fund or otherwise,
(ii) at the option of any Person other than such
Person, or
(iii) upon the occurrence of a condition not
solely within the control of such Person; or
(b) convertible into other Redeemable Stock.
"Required Holders" means, at any time, the holder or holders
of a majority 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.
"Restricted Investments" means all Investments except the
following:
(a) property to be used in the ordinary course of
business of the Company and its Restricted Subsidiaries;
(b) current assets arising from the sale of goods and
services in the ordinary course of business of the Company
and its Restricted Subsidiaries;
(c) Investments in one or more Restricted Subsidiaries
or any Person that concurrently with such Investment becomes
a Restricted Subsidiary;
(d) Investments existing on the date of the Closing
and disclosed in Schedule 10.8;
(e) Investments in United States Government
Securities, provided that such obligations mature within
three years from the date of acquisition thereof;
(f) 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 "AA" or better by S&P, "Aa2"
or better by Moody's or an equivalent rating by any other
credit rating agency of recognized national standing,
provided that such obligations mature within 365 days from
the date of acquisition thereof;
(g) Investments in certificates of deposit or banker's
acceptances issued by an Acceptable Bank, provided that such
obligations mature within 365 days from the date of
acquisition thereof;
(h) Investments in commercial paper given one of the
two highest ratings by S&P, Moody's or any other credit
rating agency of recognized national standing and maturing
not more than 270 days from the date of creation thereof;
(i) Investments in money market investment programs
and in publicly-traded shares in any open-end mutual fund,
in each case that invest solely in Investments of the type
described in clause (e), clause (g), or clause (h) of this
definition and has total assets in excess of One Billion
Dollars ($1,000,000,000), provided that such Investments are
classified as current assets in accordance with GAAP;
(j) Investments in treasury stock; and
(k) Investments in Permitted Repurchase Agreements.
As of any date of determination, each Restricted Investment
shall be valued at the greater of:
(x) the amount at which such Restricted Investment is
shown on the books of the Company or any of its Restricted
Subsidiaries (or zero if such Restricted Investment is not
shown on any such books); and
(y) either
(i) in the case of any Guaranty of the obligation
of any Person, the amount which the Company or any of
its Restricted Subsidiaries has paid on account of such
obligation less any recoupment by the Company or such
Restricted Subsidiary of any such payments, or
(ii) in the case of any other Restricted
Investment, the excess of (A) the greater of (1) the
amount originally entered on the books of the Company
or any of its Restricted Subsidiaries with respect
thereto and (2) the cost thereof to the Company or its
Restricted Subsidiary over (B) any return of capital
(after income taxes applicable thereto) upon such
Restricted Investment through the sale or other
liquidation thereof or part thereof or otherwise.
As used in this definition of "Restricted Investments":
"Acceptable Bank" means any 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 S&P, Moody's or any other credit
rating agency of recognized national standing.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Permitted Repurchase Agreements" means any written
agreement:
(a) that provides for
(i) the transfer of one or more United
States Governmental Securities to the Company or a
Restricted Subsidiary from an Acceptable Bank
against a transfer of funds (the "transfer price")
by the Company or such Restricted Subsidiary to
such Acceptable Bank, and
(ii) a simultaneous agreement by the Company
or such Restricted Subsidiary, in connection with
such transfer of funds, to transfer to such
Acceptable Bank 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
one (1) year after such transfer of funds; and
(b) in respect of which the Company or such
Restricted Subsidiary shall have the right, whether by
contract or pursuant to applicable law, to liquidate
such repurchase agreement upon the occurrence of any
default thereunder.
"S&P" means Standard & Poor's Ratings Group, a division
of McGraw Hill, Inc.
"Restricted Payment" means any Distribution (other than on
account of Capital Stock of a Restricted Subsidiary owned legally
and beneficially by the Company or a Restricted Subsidiary),
including, without limitation, any Distribution resulting in the
acquisition by the Company of Securities which would constitute
treasury stock.
"Restricted Subsidiary" means, at any time, a Subsidiary
which
(a) as of the date of the Closing has been designated
as a "Restricted Subsidiary" in Schedule 5.4, or
(b) after the date of the Closing, and in accordance
with Section 9.6, has been designated as a "Restricted
Subsidiary."
"Restricted Subsidiary Stock" means, with respect to any
Person, the Capital Stock (or any options or warrants to purchase
stock or other Securities exchangeable for or convertible into
any Capital Stock) of any Restricted Subsidiary of such Person.
"Sale-and-Leaseback Transaction" means a transaction or
series of transactions pursuant to which the Company or any
Restricted Subsidiary shall sell or transfer to any Person (other
than by a Restricted Subsidiary to the Company or another
Restricted Subsidiary) any property constructed or acquired after
the date of Closing, and, as part of the same transaction or
series of transactions, the Company or such Restricted Subsidiary
shall, within 180 days of the completion of such construction or
acquisition, rent or lease as lessee, such property.
"SEC" means, at any time, the Securities and Exchange
Commission or any other Federal agency at such time administering
the Securities Act.
"Securities Act" means the Securities Act of 1933, as
amended from time to time.
"Security" has the meaning set forth in section 2(1) of the
Securities Act.
"Senior Debt" means the Notes and any Debt of the Company or
its Restricted Subsidiaries that by its terms is not subordinated
in right of payment to any unsecured Debt of the Company or any
Restricted Subsidiary.
"Senior Financial Officer" means the chief financial
officer, principal accounting officer, treasurer or comptroller
of the Company.
"Series" means any one or more of the series of Notes issued
hereunder.
"Series A1 Notes" is defined in Section 1.2(a)(i).
"Series A2 Notes" is defined in Section 1.2(a)(ii).
"Series B Notes" is defined in Section 1.2(b).
"Significant Subsidiary" means, at any time, any Restricted
Subsidiary that would at such time constitute a "significant
subsidiary" (as such term is defined in Regulation S-X of the SEC
as in effect on the date of the Closing) of the Company.
"Source" is defined in Section 6.2.
"Specified Asset Percentage" is defined in Section 10.10(a).
"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 or joint venture 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.
"Surviving Corporation" is defined in Section 10.9(a)(i)(A).
"Swaps" means, with respect to any Person, payment
obligations with respect to interest rate swaps, currency swaps
and similar obligations obligating such Person to make payments,
whether periodically or upon the happening of a contingency. For
the purposes of this Agreement, the amount of the obligation
under any Swap shall be the amount determined in respect thereof
as of the end of the then most recently ended fiscal quarter of
such Person, based on the assumption that such Swap had
terminated at the end of such fiscal quarter, and in making such
determination, if any agreement relating to such Swap provides
for the netting of amounts payable by and to such Person
thereunder or if any such agreement provides for the simultaneous
payment of amounts by and to such Person, then in each such case,
the amount of such obligation shall be the net amount so
determined.
"Total Restricted Subsidiary Indebtedness" means, at any
time, without duplication
(a) the aggregate Indebtedness of all Restricted
Subsidiaries outstanding at such time, and
(b) the aggregate amount of claims (whether or not
contingent or liquidated at such time) in respect of
(including, without limitation, accumulated, unpaid
dividends on) all Preferred Stock (and other equity
Securities and all other Securities convertible into,
exchangeable for, or representing the right to purchase,
Preferred Stock) of all Restricted Subsidiaries outstanding
at such time (whether or not any right of redemption or
conversion is exercisable by the holder thereof at such
time),
determined, in each case, on a combined basis for such Persons,
but excluding from such calculation (i) all Excluded Restricted
Subsidiary Indebtedness at such time and (ii) all such Preferred
Stock and other equity Securities which are legally and
beneficially owned by the Company or any Wholly-Owned Restricted
Subsidiary.
"Transfer" means, with respect to any Person, any
transaction in which such Person sells, conveys, transfers or
leases (as lessor) any of its property, including, without
limitation, Restricted Subsidiary Stock.
"United States Government Security" means any direct
obligation of, or obligation guaranteed by, the United States of
America, or any agency controlled or supervised by or acting as
an instrumentality of the United States of America pursuant to
authority granted by the Congress of the United States of
America, so long as such obligation or guarantee shall have the
benefit of the full faith and credit of the United States of
America which shall have been pledged pursuant to authority
granted by the Congress of the United States of America.
"Unrestricted Subsidiary" at any time means a Subsidiary
which,
(a) as of the date of the Closing, is not a Restricted
Subsidiary,
(b) after the date of the Closing and in accordance
with Section 9.6, has been designated as, or deemed
designated as, an "Unrestricted Subsidiary," or
(c) otherwise does not satisfy the criteria for a
Restricted Subsidiary set forth in the definition of
"Restricted Subsidiary" contained in this Schedule B.
"Voting Stock" means Capital Stock of any class or classes
of a Person the holders of which are ordinarily, in the absence
of contingencies, entitled to elect corporate directors (or
Persons performing similar functions).
"Wholly-Owned Restricted Subsidiary" means, at any time, any
Restricted Subsidiary 100% of
(a) all of the Voting Stock and other equity interests
(except directors' qualifying shares) and
(b) all of the Indebtedness
of which are owned by any one or more of the Company and the
Company's other Wholly-Owned Restricted Subsidiaries at such
time.
SCHEDULE 3
PAYMENT INSTRUCTIONS
Bank of America
ABA No. 000000000
For the account of Optical Coating Laboratory, Inc.
Account Number: 14980-00084
Contact Name and Telephone Number: Xxxxx Xxxxxxxxx, (925)
675-7132)
SCHEDULE 4.10
CHANGES IN CORPORATE STRUCTURE
None
SCHEDULE 5.3
DISCLOSURE MATERIALS
None
SCHEDULE 5.4
SUBSIDIARIES OF THE COMPANY AND OWNERSHIP OF SUBSIDIARY STOCK
(a)(i) and (a)(ii) The Company's 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 outstanding owned by the Company and each other
Subsidiary.
Percent of Place of
Subsidiary Name OwnershipIncorporation
Unrestricted Subsidiaries:
Hakuto-OCLI, Ltd. (OCLI Asia)................ 50% Japan
OCLI International Service Corporation....... 100% California
OCLI Foreign Sales Corporation............... 100% Guam
OCLI Optical Coating Laboratory GmbH......... 100% Germany
MMG Glastechnik GmbH......................... 100% Germany
OCLI Optical Coatings Espana S.A............. 100% Spain
Optical Coating Laboratory B.V............... 100% Netherlands
Optical Coating Laboratory EURL.............. 100% France
Restricted Subsidiaries:
OCLI Optical Coating Laboratory, Ltd......... 100% Scotland
Flex Products, Inc........................... 60% Delaware
(a)(iii)The Company's Affiliates, other than Subsidiaries
Beneficial Owner Numberrof SPercenteof
OCLI 401(k)/ESOP Plan *1,552,129 *12.9%
c/o Optical Coating Laboratory, Inc.
0000 Xxxxxxxxxx Xxxxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000-0000
*At June 30, 1998
SCHEDULE 5.5
FINANCIAL STATEMENTS
Financial statements as contained in the Company's Form 10-K for
the year ended October 31, 1997 and Form 10-Q for the three and
six months ended April 30, 1998.
SCHEDULE 5.8
CERTAIN LITIGATION
1. In 1997, Optical Corporation of America (_ OCA_) and
certain of its directors and officers (_ Affiliates_ )
commenced suit against the Company. The complaint arises
out of a letter of intent executed by the Company and OCA in
March 1996 and an ensuing merger agreement executed by the
Company and OCA in June 1996. Under the merger agreement,
the Company would acquire OCA. The complaint seeks damages
for costs and expenses incurred by OCA in pursuing the
merger transaction with the Company due to the Company's
alleged negligent misrepresentations to OCA and Affiliates
and the Company's alleged breach of its letter of intent
with OCA. The Company has filed counterclaims against OCA
and the Affiliates based on OCA's breach of the merger
agreement and is seeking damages based on the difference
between the value of OCA's business to the Company and the
agreed upon purchase price under the merger agreement. The
Company does not believe that this litigation will have any
material adverse effect on its future operating results or
financial condition.
2. In 1997, Flex Products filed a suit in United States
District Court for the Eastern District of Michigan alleging
that BASF Corporation (BASF) and BASF AG have infringed
Flex's patents covering optically variable thin film flakes
which, when mixed with paints and inks, produce color
shifting visual properties. The complaint requests that the
Court enjoin BASF from importing, making, using, selling or
offering to sell the infringing pigment in the United
States. The complaint also seeks damages for the
infringement, including treble damages if the infringement
is found to be willful. BASF Corporation has filed a
counterclaim seeking a declaration that the patent in
question is invalid. Both BASF companies have requested
that they be awarded their attorneys' fees and costs.
Management remains confident in the validity of Flex
Products' patent, and based upon the information currently
available, that the BASF product is, in fact, covered by the
patent.
3. During the past several years, the Company has been engaged
in litigation in the United Kingdom (_ U.K._ ) involving
infringement of a Company patent by Xxxxxxxxxx, a U.K.
company. The Company won its action at the Patents County
Courts level but lost on appeal to the U.K. House of Lords.
During the injunction period, Xxxxxxxxxx submitted a claim
for damages totaling approximately $1.6 million for lost
profits. The Company and legal counsel are in the process
of reviewing the claim. Management believes that the amount
of the claim is substantially overstated and that the
ultimate settlement will not have a material adverse effect
on the financial statements.
SCHEDULE 5.11
PATENTS, ETC.
None.
(Note: Assuming BASF is settled prior to close.)
SCHEDULE 5.12
ERISA AFFILIATES AND FOREIGN PENSION PLANS
1. OCLI 401(k)/ESOP Plan
c/o Optical Coating Laboratory, Inc.
0000 Xxxxxxxxxx Xxxxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000-0000
Trustees: X. Xxxx Price
Administrative Committee:
Xxxxx Xxxxxxx, Vice President, Finance
and Chief Financial Officer
Xxxx Xxxxxxx, Manager, Compensation and Benefits
Xxxxx Xxxx, Corporate Controller
2. The OCLI Optical Coating Laboratory, Ltd., Scotland Insurance
Ridge Way
Hillend Industrial Park
Dalgety Bay, Xxxx
Xxxxxxxx, XX00 0XX
Trustees: All employees of OCLI Optical
Coating Laboratory, Ltd.
Administrative Committee:
Xxx Xxxxxx, Finance Director
Xxxxxx Xxxxx, Manufacturing Scheduler/Technician
3. Employees of OCLI/MMG Division, Germany and
OCLI Optical Coating Laboratory GmbH, Germany
accrue retirement benefits under the German National
Program.
Trustees: Not Applicable
SCHEDULE 5.15
EXISTING INDEBTEDNESS AND LIENS
See the attached "Minimum Operating Lease Commitments" schedule
in addition to the following debt schedule as of 4/30/98:
(Amounts in thousands) At 4/30/98
-------------------------------------------------------------
Unsecured senior notes. Interest at 8.71% payable semiannually.
Principal payable in annual installments of $3.6 million from
1998 through 2002. .................................. $14,400
Bank of America NT&SA. Unsecured bank term loan.
Variable interest rates averaging 6.8% at October 31, 1997,
payable quarterly, with semiannual principal payments of
$2 million. ...........................................$ 8,000
Bank of America NT&SA. Unsecured borrowings under bank line of
credit. Variable interest rate averaging 6.7% at October 31, 1997,
payable quarterly or specified duration period. Principal due
upon expiration on April 28, 2000......................$ 3,000
Aid Association for Lutherans. Mortgage payable. Interest at 8%.
Collateralized by a 72,000 sq. ft. newly constructed building
and related land. Principal and interest payments of $25,000
per month through 2011................................ $ 2,370
Aid Association for Lutherans. Mortgage payable. Interest
at 7.5%. Collateralized by a 65,000 sq. ft. newly
constructed building and related land leased to Flex
Products. Principal and interest payments of $28,000 per month
through 2011............................................$ 2,735
Scottish Development Agency. Building loan, with a conditional
interest moratorium from February 1, 1995 through January 31,
1998, with interest at 9.5% thereafter. Semiannual principal
payments of approximately $100,000 are payable through January
1998 with subsequent payments of $331,000, comprising principal
and interest, through 2006. Collateralized by the land and
building of the Company's Scottish subsidiary...........$ 3,748
ABN AMRO Unsecured bank note. Interest at 5.6%. Quarterly
principal and interest payments of approximately $300,000
through December 2002. .................................$ 4,075
Deutsche Bank. Bank loans of OCLI/MMG Division with interest
rates ranging from 4.5% to 7.5%. Payable in semiannual and
annual installments through 2020. Partly collateralized by
mortgages on OCLI/MMG Division land and buildings and liens
on equipment. ..........................................$ 3,284
Asahi Bank. Bank line of Credit - Hakuto/OCLI J.V.,
Japan. ..................................................$ 1,498
Present value of obligations under capital leases at imputed
interest rates from 8.0% to 9.5% payable in monthly installments
through 2004. ...........................................$ 2,166
The Company has a $32 million unsecured credit facility comprised
of a $10 million term loan and a $20 million revolving line of
credit (increased from $15 million in 1997). The revolving line
of credit carries a commitment fee of .375% per year on the
unused portion of the facility and expires on April 28, 2000.
The Company has a surety bond for $903,000 to satisfy the
Company's workers' compensation self-insurance requirements. The
surety bond carries a fee of 1.00% per year.
During 1997, the Company replaced its 8%, $5 million note payable
to private parties with a 5.6% bank note. Payments of principal
and interest under the new note are denominated in German marks
and are approximately $300,000 per quarter through December 2002.
In connection with the note payable to private parties, the
Company carried an incremental credit facility to cover a surety
letter for approximately $2.5 million issued to secure 50% of the
Company's obligation arising from the purchase of MMG. As the
new note does not require a surety letter, the $2.5 million
surety letter was canceled.
During 1997, the Company recorded capital leases totaling
$2,037,000 to finance the hardware, software and integration
costs of a new computer system that is to be implemented in 1998.
Lease terms run through February 2002 with payments totaling
approximately $50,000 per month.
The Company's subsidiary in Scotland has a credit arrangement of
up to approximately $490,000 at market interest rates and has
outstanding letters of credit of approximately $330,000 to
guarantee import duties. There were no borrowings under the
credit arrangement in fiscal years 1997 or 1996.
The Company's subsidiary in Germany has various credit facilities
with local banks totaling approximately $381,000 which are used
for working capital requirements. These credit facilities are
utilized as part of normal local payment practices.
During 1996, the Company entered into three sale/lease-back
arrangements for a newly acquired continuous coating machine and
related equipment and for two newly acquired coating machines to
be used in the manufacturing operations of Flex Products. Cash
proceeds from the sale/lease-back arrangements exceeded the
Company's cost by approximately $750,000 which was recorded as
deferred revenue and is being amortized against lease expenses at
the rate of approximately $125,000 per year. The lease terms are
six years with monthly payments totaling approximately $290,000
and buyout provisions at the end of each lease.
The Company has certain financial covenants and restrictions
under its bank credit arrangements and the unsecured senior
notes.
SCHEDULE 10.8
EXISTING INVESTMENTS
Please see the attached schedules:
1.Santa Xxxx Investments Purchased
2.Santa Xxxx Investments Sold
3.Santa Xxxx Balance On Hand at 7/21/98
FORM OF SERIES A1 SENIOR NOTE
Exhibit A1-1
EXHIBIT A1
FORM OF SERIES A1 SENIOR NOTE
OPTICAL COATING LABORATORY, INC.
8.71% SERIES A1 SENIOR NOTE DUE JUNE 1, 2002
No. RA1-___ [Date]
$_______ PPN: 683829 A@ 4
FOR VALUE RECEIVED, the undersigned, OPTICAL COATING
LABORATORY, INC. (hereinafter called the"Company"), a corporation
organized and existing under the laws of the State of Delaware,
hereby promises to pay __________________, or registered assigns,
the principal sum of _____________________________________ on
June 1, 2002, with interest (computed on the basis of a 360-day
year of twelve 30-day months) (a) on the unpaid balance thereof
at the rate of 8.71% per annum from the date hereof, payable
semiannually on the first day of June and December in each year
commencing with the June 1 and December 1 next succeeding
the date hereof, until the principal hereof shall have become due
and payable, and (b) to the extent permitted by law on any overdue
payment (including any overdue prepayment) of principal, any overdue
payment of interest and any overdue payment of any Make=Whole Amount
as defined in the Note Purchase Agreements referred to below),
payable semiannually as aforesaid (or, at the option of the
registered holder hereof, on demand), at a rate per annum from
time to time equal to the lesser of (i) 9.71%, and (ii) the highest
rate allowed by applicable law.
Payments of principal of, interest on and any Make-Whole
Amount with respect to this Note are to be made in lawful money
of the United States of America at the address shown in the
register maintained by the Company for such purpose or at such
other place as the Company shall have designated by written
notice to the holder of this Note as provided in the Note
Purchase Agreements referred to below.
This Note is one of a series of Senior Notes (herein called
the "Notes") issued pursuant to separate Note Purchase
Agreements, dated as of July 30, 1998 (as from time to time
amended, the "Note Purchase Agreements"), between the Company and
the respective purchasers named therein and is entitled to the
benefits thereof. Each holder of this Note will be deemed, by
its acceptance hereof, (i) to have agreed to the confidentiality
provisions set forth in Section 20 of the Note Purchase
Agreements and (ii) to have made the representation set forth in
Section 6.2 of the Note Purchase Agreements.
This Note is a registered Note and, as provided in the Note
Purchase Agreements, upon surrender of this Note for registration
of transfer, duly endorsed, or accompanied by a written
instrument of transfer duly executed, by the registered holder
hereof or such holder's attorney duly authorized in writing, a
new Note for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due
presentment for registration of transfer, the Company may treat
the person in whose name this Note is registered as the owner
hereof for the purpose of receiving payment and for all other
purposes, and the Company will not be affected by any notice to
the contrary.
The Company will make required prepayments of principal on
the dates and in the amounts specified in the Note Purchase
Agreements. This Note is also subject to optional prepayment, in
whole or from time to time in part, at the times and on the terms
specified in the Note Purchase Agreements, but not otherwise.
If an Event of Default, as defined in the Note Purchase
Agreements, occurs and is continuing, the principal of this Note
may be declared or otherwise become due and payable in the
manner, at the price (including any applicable Make-Whole Amount)
and with the effect provided in the Note Purchase Agreements.
THIS NOTE AND THE NOTE PURCHASE AGREEMENTS SHALL BE GOVERNED
BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF CONNECTICUT, 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.
OPTICAL COATING LABORATORY,INC.
By
Name:
Title:
FORM OF SERIES A1 SENIOR NOTE
Exhibit A1-2
EXHIBIT A2
FORM OF SERIES A2 SENIOR NOTE
OPTICAL COATING LABORATORY, INC.
7.80% SERIES A2 SENIOR NOTE DUE JULY 31, 2008
No. RA2-___ [Date]
$_______ PPN: 683829 A# 2
FOR VALUE RECEIVED, the undersigned, OPTICAL COATING
LABORATORY, INC. (hereinafter called the"Company"), a corporation
organized and existing under the laws of the State of Delaware,
hereby promises to pay __________________, or registered assigns,
the principal sum of _____________________________________ on
July 31, 2008, with interest (computed on the basis of a 360-day
year of twelve 30-day months) (a) on the unpaid balance thereof
at the rate of 7.80% per annum from the date hereof, payable
semiannually on the 31st day of January and July in each year,
commencing on the later of January 31, 1999 and the January 31 or
July 31 next succeeding the date hereof, until the principal hereof
shall have become due and payable, and (b) to the extent permitted
by law on any overdue payment (including any overdue prepayment)
of principal, any overdue payment of interest and any overdue
payment of any Make=Whole Amount as defined in the Note Purchase
Agreements referred to below), payable semiannually as aforesaid
(or, at the option of the registered holder hereof, on demand),
at a rate per annum from time to time equal to the lesser of
(i) 8.809%, and (ii) the highest rate allowed by applicable law.
Payments of principal of, interest on and any Make-Whole
Amount with respect to this Note are to be made in lawful money
of the United States of America at the address shown in the
register maintained by the Company for such purpose or at such
other place as the Company shall have designated by written
notice to the holder of this Note as provided in the Note
Purchase Agreements referred to below.
This Note is one of a series of Senior Notes (herein called
the "Notes") issued pursuant to separate Note Purchase
Agreements, dated as of July 30, 1998 (as from time to time
amended, the "Note Purchase Agreements"), between the Company and
the respective purchasers named therein and is entitled to the
benefits thereof. Each holder of this Note will be deemed, by
its acceptance hereof, (i) to have agreed to the confidentiality
provisions set forth in Section 20 of the Note Purchase
Agreements and (ii) to have made the representation set forth in
Section 6.2 of the Note Purchase Agreements.
This Note is a registered Note and, as provided in the Note
Purchase Agreements, upon surrender of this Note for registration
of transfer, duly endorsed, or accompanied by a written
instrument of transfer duly executed, by the registered holder
hereof or such holder's attorney duly authorized in writing, a
new Note for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due
presentment for registration of transfer, the Company may treat
the person in whose name this Note is registered as the owner
hereof for the purpose of receiving payment and for all other
purposes, and the Company will not be affected by any notice to
the contrary.
The Company will make required prepayments of principal on
the dates and in the amounts specified in the Note Purchase
Agreements. This Note is also subject to optional prepayment, in
whole or from time to time in part, at the times and on the terms
specified in the Note Purchase Agreements, but not otherwise.
If an Event of Default, as defined in the Note Purchase
Agreements, occurs and is continuing, the principal of this Note
may be declared or otherwise become due and payable in the
manner, at the price (including any applicable Make-Whole Amount)
and with the effect provided in the Note Purchase Agreements.
THIS NOTE AND THE NOTE PURCHASE AGREEMENTS SHALL BE GOVERNED
BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF CONNECTICUT, 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.
OPTICAL COATING LABORATORY, INC.
By
Name:
Title:
FORM OF SERIES B1 SENIOR NOTE
Exhibit B1
EXHIBIT B
FORM OF SERIES B SENIOR NOTE
OPTICAL COATING LABORATORY, INC.
6.69% SERIES B SENIOR NOTE DUE JULY 31, 2008
No. RB-___ [Date]
$_______ PPN: 683829 B* 5
FOR VALUE RECEIVED, the undersigned, OPTICAL COATING
LABORATORY, INC. (hereinafter called the"Company"), a corporation
organized and existing under the laws of the State of Delaware,
hereby promises to pay __________________, or registered assigns,
the principal sum of _____________________________________ on
July 31, 2008, with interest (computed on the basis of a 360-day
year of twelve 30-day months) (a) on the unpaid balance thereof
at the rate of 6.69% per annum from the date hereof, payable
semiannually on the 31st day of January and July next succeeding
the date hereof, until the principal hereof shall have become due
and payable, and (b) to the extent permitted by law on any overdue
payment (including any overdue prepayment) of principal, any overdue
payment of interest and any overdue payment of any Make=Whole Amount
as defined in the Note Purchase Agreements referred to below),
payable semiannually as aforesaid (or, at the option of the
registered holder hereof, on demand), at a rate per annum from
time to time equal to the lesser of (i) 7.69%, and (ii) the highest
rate allowed by applicable law.
Payments of principal of, interest on and any Make-Whole
Amount with respect to this Note are to be made in lawful money
of the United States of America at the address shown in the
register maintained by the Company for such purpose or at such
other place as the Company shall have designated by written
notice to the holder of this Note as provided in the Note
Purchase Agreements referred to below.
This Note is one of a series of Senior Notes (herein called
the "Notes") issued pursuant to separate Note Purchase
Agreements, dated as of July 30, 1998 (as from time to time
amended, the "Note Purchase Agreements"), between the Company and
the respective purchasers named therein and is entitled to the
benefits thereof. Each holder of this Note will be deemed, by
its acceptance hereof, (i) to have agreed to the confidentiality
provisions set forth in Section 20 of the Note Purchase
Agreements and (ii) to have made the representation set forth in
Section 6.2 of the Note Purchase Agreements.
This Note is a registered Note and, as provided in the Note
Purchase Agreements, upon surrender of this Note for registration
of transfer, duly endorsed, or accompanied by a written
instrument of transfer duly executed, by the registered holder
hereof or such holder's attorney duly authorized in writing, a
new Note for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due
presentment for registration of transfer, the Company may treat
the person in whose name this Note is registered as the owner
hereof for the purpose of receiving payment and for all other
purposes, and the Company will not be affected by any notice to
the contrary.
The Company will make required prepayments of principal on
the dates and in the amounts specified in the Note Purchase
Agreements. This Note is also subject to optional prepayment, in
whole or from time to time in part, at the times and on the terms
specified in the Note Purchase Agreements, but not otherwise.
If an Event of Default, as defined in the Note Purchase
Agreements, occurs and is continuing, the principal of this Note
may be declared or otherwise become due and payable in the
manner, at the price (including any applicable Make-Whole Amount)
and with the effect provided in the Note Purchase Agreements.
THIS NOTE AND THE NOTE PURCHASE AGREEMENTS SHALL BE GOVERNED
BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF CONNECTICUT, 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.
OPTICAL COATING LABORATORY, INC.
By
Name:
Title:
EXHIBIT 4.4(a)
FORM OF OPINION OF SPECIAL COUNSEL
TO THE COMPANY
August 3, 1998
To the Persons Listed on Annex 1 Hereto:
Re: Optical Coating Laboratory, Inc. $44,400,000,
Senior Notes Due June 1, 2002 and July 31,
2008
Ladies and Gentlemen:
We have acted as counsel to Optical Coating
Laboratory, Inc., a Delaware corporation (the
"Company"), and the Restricted Subsidiaries in
connection with the execution and delivery by the
Company of separate Note Purchase Agreements, dated as
of July 30, 1998 (collectively, the "Agreement"), with,
respectively, each of the purchasers listed on Schedule
A attached thereto (collectively the "Purchasers"). We
are delivering this opinion to you pursuant to
Section 4.4 of the Agreement. All capitalized terms
used and not expressly defined herein shall have the
meaning given to them in the Agreement.
In connection with the foregoing we have been
furnished with originals or copies certified to our
satisfaction of such corporate or other records of the
Company and the Restricted Subsidiaries, with such
certificates of officers and representatives of the
Company and the Restricted Subsidiaries, and with such
other documents, and we have made such other
examinations, investigations and inquiries of the
Company and the Restricted Subsidiaries and their
respective officers, as we have deemed necessary as a
basis for the opinions expressed below.
Without limiting the foregoing, we have examined
executed copies of the following documents addressed to
the Purchasers or to which the Purchasers are each a
party (all of which are sometimes collectively referred
to as the "Documents"):
A. The Agreement and all exhibits thereto;
B. The Company's 8.71% Senior Notes due June 1,
2002, dated the date hereof, the Company's 7.80% Senior
Notes due July 31, 2008, dated the date hereof, and the
Company's 6.69% Senior Notes due July 31, 2008, dated
the date hereof, each in the form, principal amount and
with the registration numbers set forth in Schedule A
and Exhibits A1, A2 and B (respectively) to the
Agreement delivered to the Purchasers on the date
hereof pursuant to the Agreement (the "Notes"); and
C. The documents executed and delivered by the
Company in connection with the transactions
contemplated by the Agreement.
In connection with this opinion, we also have
examined and relied upon originals, or copies certified
or otherwise identified to our satisfaction as being
true copies, of the following, each dated this date
unless otherwise indicated:
A. Certificates of the Secretary of the Company
certifying as to (i) the Certificate of Incorporation
and Bylaws of the Company and (ii) resolutions adopted
by the Board of Directors of the Company;
B. Certificates of the Secretaries or other
appropriate officers of each of the Significant
Restricted Subsidiaries (defined as a Restricted
Subsidiary that is also a Significant Subsidiary)
certifying as to the Articles of Incorporation,
Certificate of Incorporation or other similar charter
document, as the case may be, and Bylaws or other
similar charter document of each such Significant
Restricted Subsidiary;
C. A certificate executed by Xxxxxxx X. Xxxx,
President and Chief Executive Officer of the Company,
Xxxxx X. Xxxxxxx, Vice President, Finance and Chief
Financial Officer of the Company, and Xxxxxxx X. Xxxx,
Assistant Treasurer of the Company (the "Company's
Certificate"), stating that aside from certain
outstanding indentures and loan, credit, guaranty or
lease agreements, all of which are identified in said
certificate, no other agreements or instruments or
orders, writs, judgments, awards, injunctions and
decrees, affect or purport to affect the right of the
Company to borrow money or to undertake and perform
obligations of the Company under the Documents;
D. A Certificate of the Secretary of State of
Delaware, dated July 28, 1998, attesting to the
continued corporate existence and good standing of the
Company in that state;
E. Certificates of recent dates of the
Secretaries of State or other appropriate governmental
authority of those jurisdictions where the Company or
any Significant Restricted Subsidiary is required to be
qualified and in good standing to do business and where
its failure to be so qualified or in good standing
would have a Material Adverse Effect, attesting to its
qualification and good standing in those jurisdictions,
each of which is identified on Annex 2 hereto;
F. Certificates of recent dates of the
Secretaries of State or other appropriate governmental
authorities of those jurisdictions where each of the
Significant Restricted Subsidiaries is incorporated
attesting to the continued corporate existence and good
standing of each such Significant Restricted Subsidiary
in its respective state or jurisdiction of
incorporation;
G. A letter to Xxxx & Xxxxxx and this firm from
BancAmerica Xxxxxxxxx Xxxxxxxx, describing the manner
of the offering of the Notes (the "Offeree Letter");
H. The opinion of Xxxx & Xxxxxx, counsel to the
Purchasers, as to all matters governed by Connecticut
law, dated the date hereof; and
I. Originals, or copies certified or otherwise
identified to our satisfaction, of such other
documents, records, instruments and certificates of
public officials as we have deemed necessary or
appropriate to enable us to render this opinion.
We have also examined originals or copies of the
documents listed in the Company's Certificate.
In conducting our examination we have assumed,
without investigation, the genuineness of all
signatures (other than the signatures of officers of
the Company with respect to the Documents), the
correctness of all certificates, the authenticity of
all certificates and documents submitted to us as
originals, the conformity to original documents of all
documents submitted to us as certified or photostatic
copies and the authenticity of the originals of such
copies, and the accuracy and completeness of all
records made available to us by the Company or any of
the Restricted Subsidiaries. We have also assumed,
without investigation, the accuracy of the
representations and warranties as to factual matters
made by any party in the Documents and the accuracy of
the representations and factual statements made to us
by officers or employees of the Company and the
Restricted Subsidiaries and by public officials. In
making our examination of documents and instruments
executed by any person or entity, we have, subject to
the next succeeding sentence, assumed, without
investigation, that each such person or entity has
(i) the power, capacity, right and legal authority to
enter into and perform all of its obligations under
such documents and instruments, (ii) duly authorized
all requisite action with respect to such documents and
instruments, and (iii) duly executed and delivered such
documents and instruments. We have not, however, made
the assumptions set forth in the immediately preceding
sentence with respect to the Company or the Restricted
Subsidiaries or their respective power, capacity,
right, authority, authorization or execution of
documents and instruments.
Whenever a statement below is qualified by the
phrases "known to us" or "to our knowledge," it is
intended to indicate that during the course of our
representation of the Company and the Restricted
Subsidiaries, no information that would give us actual
knowledge of, or a reasonable belief concerning, the
inaccuracy of such statement has come to the attention
of those attorneys in this firm who have rendered legal
services to the Company or the Restricted Subsidiaries.
Except as otherwise expressly indicated, we have not
undertaken any independent investigation to determine
the accuracy of such statement, and any limited inquiry
undertaken by us during the preparation of this opinion
letter should not be regarded as such an investigation.
No inference as to our knowledge of any matters bearing
on the accuracy of any such statement should be drawn
from the fact of our representation of the Company or
the Restricted Subsidiaries.
In rendering the opinions hereinafter expressed,
we have also assumed, without investigation, that the
following facts are true:
1. The Purchasers will enforce their rights
under the Documents in circumstances and in a manner in
which it is commercially reasonable to do so, and in
accordance with all procedural requirements under
applicable law.
2. Other than the Company and the Restricted
Subsidiaries, no party to any of the Documents or any
agreement relating thereto is subject to any statute,
rule, or regulation, or to any impediment to which
contracting parties are generally not subject, which
requires the Company, any of the Restricted
Subsidiaries or any other person or party to obtain the
consent of or to make a declaration or filing with any
governmental authority or other person or entity as a
condition to the execution, delivery or performance of
the Documents.
3. The Purchasers are each incorporated admitted
insurers as such term is used in Section 1100.1 of the
California Insurance Code.
The opinions expressed below are subject to the
following qualifications:
1. Our opinions below are subject to the
following: (a) the effect of bankruptcy, insolvency,
reorganization, arrangement, moratorium and other
similar laws now or hereafter in effect relating to or
affecting the rights of creditors generally; and (b)
the limitations imposed by California law, federal law,
or equitable or public policy principles upon the
availability of injunctive relief or other equitable
remedies, including, without limitation, the effect of
California and federal court decisions invoking
statutes or principles of equity or of public policy,
which have held that certain covenants and provisions
of agreements are unenforceable where: (i) the breach
of such covenants or provisions results in acceleration
or the imposition of late payment charges or increased
interest rates upon delinquency in the payment of
indebtedness due under debt instruments, and it cannot
be demonstrated that the enforcement of such
restrictions or burdens is reasonably necessary for the
protection of the creditor, or (ii) the creditor's
enforcement of such covenants or provisions under the
circumstances would violate the creditor's implied
covenant of good faith and fair dealing.
2. We are members of the Bar of the State of
California and do not hold ourselves out as experts on
the law of any other state. Consequently, our opinions
below are limited to the effect of the laws of the
State of California, of the federal laws of the United
States and, with respect only to our opinions expressed
in paragraphs (i), (iv), (v), (vi) and (vii) below, of
the General Corporation Law of the State of Delaware.
Accordingly, we express no opinion with respect to the
laws of any other jurisdiction, or the effect thereof,
on the transactions contemplated by the Documents. We
note that the Documents provide that they are governed
by the laws of the State of Connecticut. Accordingly,
our opinions expressed in paragraphs (iv), (v) and (vi)
below assume that the laws of the State of Connecticut
are the same as the laws of the State of California and
that the substantive law of California would apply to
each matter referenced in such paragraphs, including,
without limitation, its laws and exemptions pertaining
to usury.
3. Our opinions below are limited to matters
expressly set forth in this opinion letter, and no
opinion is to be implied or may be inferred beyond the
matters expressly so stated.
Based upon and subject to the foregoing, we are of
the opinion that:
(i) The Company and each Significant Restricted
Subsidiary is a corporation duly incorporated, validly
existing and in good standing under the laws of its
state or other jurisdiction of incorporation and has
all requisite corporate power and authority to carry on
its business and own its Property.
(ii) The Company and each Significant Restricted
Subsidiary is duly qualified and is in good standing as
a foreign corporation in each jurisdiction where the
character of its Properties or the nature of its
activities makes such qualification necessary, except
where the failure to so qualify and be in good standing
would not, in the aggregate, have a Material Adverse
Effect.
(iii) To the best of our knowledge after due
inquiry of officers of the Company, there is no
judgment, order, action, suit, proceeding, inquiry,
order or investigation, at law or in equity, before any
court or Governmental Authority, arbitration board or
tribunal, pending or threatened against the Company or
any one or more of the Restricted Subsidiaries, except
for any such judgment, order, action, suit, proceeding,
inquiry, order or investigation that would not, in the
aggregate for the Company and the Subsidiaries, have a
Material Adverse Effect.
(iv) The Company has the requisite corporate
power and authority to execute and deliver the
Agreement, to issue and sell the Notes, and to perform
its obligations set forth in each of the Agreement and
the Notes.
(v) Each of the Agreement and the Notes has been
duly authorized by all necessary corporate action on
the part of the Company (no action on the part of the
stockholders of the Company being required in respect
thereof), has been duly executed and delivered by
authorized officers of the Company, and constitutes a
legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its
terms.
(vi) The execution and delivery of the Agreement
and the Notes and the issue and sale of the Notes by
the Company, and the performance by the Company of its
obligations thereunder, will not conflict with,
constitute a violation of, result in a breach of any
provision of, constitute a default under, or result in
the creation or imposition of any Lien or encumbrance
upon any of its Property or the Property of a
Restricted Subsidiary pursuant to the certificate of
incorporation or bylaws of the Company or such
Restricted Subsidiary, any applicable statute, rule or
regulation known to us to which the Company or any
Restricted Subsidiary is subject, or, to our knowledge
after due inquiry of officers of the Company, any
agreement or instrument to which the Company or such
Restricted Subsidiary is a party and which is listed in
the Company's Certificate.
(vii) All consents, approvals and authorizations
of, and all designations, declarations, filings,
registrations, qualifications and recordations with,
Governmental Authorities required on the part of the
Company have been obtained in connection with the
execution and delivery of each of the Agreement and the
Notes and the issue and sale of the Notes and the use
of the proceeds thereof.
(viii) Under existing law, the Notes are not
subject to the registration requirements under the
Securities Act of 1933, as amended, and the Company is
not required to qualify an indenture with respect
thereto under the Trust Indenture Act of 1939, as
amended.
(ix) Neither the issuance of the Notes nor the
intended use of the proceeds of the Notes (as set forth
in Section 5.14 of the Agreement) will violate
Regulations T, U or X of the Federal Reserve Board.
(x) The Company
(a) is not an "investment company" within
the meaning of the Investment Company Act of 1940,
as amended, and
(b) is not a "holding company" or an
"affiliate" of a "holding company," or a
"subsidiary company" of a "holding company," or a
"public utility" within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
(xi) Based solely on our physical inspection of
the relevant stock certificates and our inquiry of
officers of the Company, the Company and each
Restricted Subsidiary has good title to all of the
shares it purports to own of the capital stock of each
Restricted Subsidiary, free and clear in each case of
any perfected security interest and any other Lien.
(xii) Section 22.6 of the Agreement provides that
the Agreement will be construed and enforced according
to the laws of the State of Connecticut. With respect
to that provision, we observe that such choice-of-laws
provisions would likely be respected by California
courts where the clause appears in a contract freely
and voluntarily entered into by parties who negotiate
at arm's length, and where (1) there is a reasonable or
"substantial" relationship between the chosen state and
the parties or their transaction, or (2) there is any
other reasonable basis for the parties' choice of law.
See Nedlloyd Lines B.V. v. Superior Court of San Mateo
County, 3 Cal.4th 459, 11 Cal.Rptr.2d 330 (1992).
Additionally, Nedlloyd notes the following additional
qualification to the enforcement of choice-of-laws
clauses in California:
... the court must next determine whether the
chosen state's law is contrary to a fundamental
policy of California. If there is no such
conflict, the court shall enforce the parties'
choice of law. If, however, there is a
fundamental conflict with California law, the
court must then determine whether California has a
"materially greater interest than the chosen state
in the determination of the particular issue ...."
If California has a materially greater interest
than the chosen state, the choice of law shall be
enforced .... [Footnotes and citations omitted.]
Id. at 334.
With regard to the first test of enforceability
noted in Nedlloyd (that is, whether there is a
reasonable or substantial relationship between the
chosen state and the parties or their transaction or
another reasonable basis for the choice of law), we
note that the Company is a Delaware corporation with
its corporate headquarters in California. We also note
that the Existing Note Purchase Agreement and the
Existing Notes are governed by the laws of the State of
Connecticut. We would expect that while a California
court would be inclined to uphold the parties' freely
chosen contractual choice-of-law, the fact that the
Existing Note Purchase Agreement and the Existing Notes
are governed by Connecticut law would be a factor in
its decision whether to enforce the clause in this
case.
The second test in Nedlloyd requires the Court to
assess whether the chosen state's law is contrary to a
fundamental policy of California, and if so, whether
California has a "materially greater interest" in the
determination of the particular issue. While it is not
entirely clear from Nedlloyd as to what constitutes a
"fundamental policy" of California, it appears from the
court's reasoning that California courts will look to
whether there is a state regulatory policy, statute or
constitutional provision designed to restrict the
parties' freedom to contract with respect to an issue
in dispute. In this regard, we note that because the
obligations evidenced by the Notes are unsecured, the
Purchasers' remedies are not subject to such
fundamental policies of the State of California as its
anti-deficiency statutes and protections, the waiver of
which are subject to restrictions in many cases by
statute or case law. On the other hand, California
case law and statutes tend to be protective of
borrowers and guarantors in general, and those
protections could be deemed "fundamental policies" of
the State to the extent that Connecticut law does not
provide substantially similar protections.
The final step in the analysis of this second test
requires the court to decide whether or not California
has a "materially greater interest" than the parties'
chosen forum in the resolution of the fundamental
public policy issue in dispute. If so, then the
parties' choice-of-law provision could be ignored or
invalidated by the court. In this connection, the
Nedlloyd court did not reach a conclusion regarding
this issue in that case, because the court did not find
a conflict between the choice-of-law provision and a
fundamental State policy.
Subject to the forgoing and all other limitations
set forth in this letter, we believe that the courts of
California would probably give effect to the choice-of-
law provisions in the Agreement, if the application of
Connecticut law does not result in the violation of a
fundamental California public policy, and in particular
policies providing protections to borrowers. However,
we have doubts as to whether a California court would
give effect to the choice-of-laws provisions under
circumstances where the application of Connecticut law
would result in the Company being denied material
protections that would be provided to it as a borrower
under California law.
(xiii) The stated rates of interest of 8.71%,
7.80%, and 6.69% and of default interest of one percent
(1.00%) over the stated rates under the Notes are not
in excess of the maximum rate of interest on loans
permitted under California usury law in the absence of
an exemption therefrom. Such permitted maximum rate of
interest is on the date hereof 10% per annum. We
express no opinion as to whether any additional
consideration that may be paid by the Company pursuant
to the Notes and the Agreement, including, without
limitation, the Make-Whole Amount, would render the
transactions contemplated thereunder usurious.
This opinion letter is rendered solely for the
benefit of the Purchasers and their special counsel in
connection with the transaction described in the
Documents. Without our prior written consent, this
opinion letter may not be (a) relied upon by any other
person or entity or used for any other purpose; (b)
quoted in whole or in part or otherwise referred to in
any report or document; or (c) furnished (the original
or copies thereof) to any person or entity, except (i)
this opinion may be quoted or disclosed in connection
with the enforcement of the Documents by the
Purchasers, (ii) future holders of the Notes may rely
on this opinion as if it were addressed to them, and
(iii) each Purchaser and each such future holder of
Notes may make this opinion available for inspection by
the National Association of Insurance Commissioners and
other regulatory authorities having jurisdiction over
such Person's affairs and by any prospective purchaser
or assignee of any of the Notes.
Very truly yours,
Xxxxxxxx & Xxxxxxxx LLP
ANNEX 1
Addressees
Optical Coating Laboratory, Inc.
0000 Xxxxxxxxxx Xxxxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000-0000
Modern Woodmen of America
0000 0xx Xxxxxx
Xxxx Xxxxxx, Xxxxxxxx 00000
American Life and Casualty Insurance Company
000 0xx Xxxxxx
Xxx Xxxxxx, Xxxx 00000
Massachusetts Mutual Life
Insurance Company
0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Baystate Health Systems, Inc.
c/o Massachusetts Mutual Life Insurance Company
0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Principal Life Insurance Company
000 Xxxx Xxxxxx
Xxx Xxxxxx, XX 00000-0000
Xxxx & Xxxxxx
Xxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
ANNEX 2
Foreign Good Standing Certificates
Corporation State
Optical Coating Laboratory, Inc. Delaware
California
Flex Products, Inc. Delaware
California
EXHIBIT 4.4(b)
FORM OF OPINION OF SPECIAL COUNSEL TO THE PURCHASERS
[Letterhead of Xxxx & Xxxxxx]
[Closing Date]
To the Persons Listed on
Annex 1 hereto
Re: Optical Coating Laboratory, Inc. (the "Company")
Ladies and Gentlemen:
Reference is made to the separate Note Purchase Agreements
(collectively, the "Note Purchase Agreement"), each dated as of
July 30, 1998, between the Company and, respectively, each of the
purchasers listed on Schedule A attached thereto (the
"Purchasers"), which provide, among other things, for (i) the
issuance by the Company of its 8.71% Series A1 Senior Notes Due
June 1, 2002 in the aggregate principal amount of Six Million
Four Hundred Thousand Dollars ($6,400,000) and the its 7.80%
Series A2 Senior Notes Due July 31, 2008 in the aggregate
principal amount of Eight Million Dollars ($8,000,000), in each
case in exchange for the surrender of the Existing Notes held by
the Existing Noteholders and (ii) the issuance and sale by the
Company and the purchase by the Purchasers on Schedule A to the
Note Purchase Agreement of the Company's 6.69% Series B Senior
Notes Due July 31, 2008 in the aggregate principal amount of
Thirty Million Dollars ($30,000,000). The capitalized terms used
herein and not defined herein have the meanings specified in the
Note Purchase Agreement.
We have acted as special counsel to the Purchasers in
connection with the transactions contemplated by the Note
Purchase Agreement. This opinion is delivered to you pursuant to
Section 4.4(b) of the Note Purchase Agreement. In acting as such
counsel, we have examined:
(a) the Note Purchase Agreement;
(b) the Company's 8.71% Series A1 Senior Notes Due
June 1, 2002, dated the date hereof, in the form of Exhibit
A1 to the Note Purchase Agreement, in the principal amount
and with the registration numbers set forth on Schedule A to
the Note Purchase Agreement (the "Series A1 Notes");
(c) the Company's 7.80% Series A2 Senior Notes Due
July 31, 2008, dated the date hereof, in the form of Exhibit
A2 to the Note Purchase Agreement, in the principal amount
and with the registration numbers set forth on Schedule A to
the Note Purchase Agreement (the "Series A2 Notes");
(d) the Company's 6.69% Series B Senior Notes Due July
31, 2008, dated the date hereof, in the form of Exhibit B to
the Note Purchase Agreement, in the principal amount and
with the registration numbers set forth on Schedule A to the
Note Purchase Agreement (the "Series B Notes," and together
with the Series A1 Notes and Series A2 Notes, the "Notes");
(e) a certificate of certain officers of the Company,
dated the date hereof;
(f) a certificate of the [Assistant] Secretary of the
Company, dated the date hereof;
(g) a letter to Xxxx & Xxxxxx from BancAmerica
Xxxxxxxxx Xxxxxxxx, dated the date hereof, making certain
representations with respect to the manner in which the
Notes were offered (the "Offeree Letter");
(h) the opinion of Xxxxxxxx & Xxxxxxxx, counsel to the
Company and the Restricted Subsidiaries, dated the date
hereof; and
(i) originals, or copies certified or otherwise
identified to our satisfaction, of such other documents,
records, instruments and certificates of public officials as
we have deemed necessary or appropriate to enable us to
render this opinion.
In rendering our opinion, we have relied, to the extent we
deem necessary and proper, on:
(i) warranties and representations as to certain
factual matters contained in the Note Purchase Agreement;
(ii) the Offeree Letter; and
(iii) said opinion of Xxxxxxxx & Xxxxxxxx with
respect to all questions governed by California law and with
respect to all questions concerning the due incorporation,
valid existence and good standing, power and authority of,
and the authorization, execution and delivery of instruments
by, the Company (except that we have made an independent
examination of a certified copy of the certificate of
incorporation of the Company and the certificates specified
in clause (e) and clause (f) above).
We have reviewed the opinion of Xxxxxxxx & Xxxxxxxx being
delivered to you on the date hereof. Based on such investigation
as we have deemed appropriate, such opinion is satisfactory in
form and scope to us, and in our opinion the Purchasers and we
are justified in relying thereon.
Our opinion in Section 5 below is based solely on a review
of generally applicable laws of the United States of America and
the State of Connecticut, and not on any search with respect to,
or review of, any orders, decrees, judgments or other
determinations specifically applicable to, the Company.
Based on the foregoing, we are of the following opinions:
1. The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of
Delaware.
2. The Company has all requisite corporate power and
authority to execute and deliver the Note Purchase Agreement, to
issue and sell the Notes, and to perform its obligations set
forth in each of the Note Purchase Agreement and the Notes.
3. Each of the Note Purchase Agreement and the Notes has
been duly authorized by all necessary corporate action on the
part of the Company, has been duly executed and delivered by one
or more authorized officers of the Company, and constitutes a
legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms.
4. The execution and delivery of the Note Purchase
Agreement and the Notes and the issue and sale of the Notes by
the Company, and the performance by the Company of its
obligations thereunder, will not conflict with, result in a
breach of any provision of, constitute a default under, or result
in the creation or imposition of any Lien upon any of its
Properties pursuant to, the certificate of incorporation or
bylaws of the Company.
5. No consents, approvals or authorizations of any Federal
or State of Connecticut governmental authorities are required in
connection with the execution and delivery of each of the Note
Purchase Agreement and the Notes, and the offer, issue, sale and
delivery of the Notes.
6. Under existing law, the Notes are not subject to the
registration requirements of the Securities Act of 1933, as
amended, and the Company is not required to qualify an indenture
with respect thereto under the Trust Indenture Act of 1939, as
amended.
All opinions herein contained with respect to the
enforceability of documents and instruments are qualified to the
extent that:
(a) the availability of equitable remedies, including
without limitation, specific enforcement and injunctive
relief, is subject to the discretion of the court before
which any proceedings therefor may be brought; and
(b) the enforceability of certain terms provided in
the Note Purchase Agreement and the Notes may be limited by
(i) applicable bankruptcy, reorganization,
arrangement, insolvency, moratorium or similar laws
affecting the enforcement of creditors' rights
generally as at the time in effect, and
(ii) common law or statutory requirements with
respect to commercial reasonableness.
Except in reliance on the opinion of Xxxxxxxx & Xxxxxxxx
delivered to the Purchasers on the date hereof, and subject to
all of the assumptions and qualifications set forth therein, we
express no opinion as to the law of any jurisdiction other than
the law of the State of Connecticut and United States federal
law. Xxxxxxxx & Xxxxxxxx may rely on this opinion for the sole
purpose of rendering their opinion to be rendered pursuant to
Section 4.4(a) of the Note Purchase Agreement.
Subsequent holders of the Notes may rely on this opinion as
if it were addressed to them.
Very truly yours,
ANNEX 1
Addressees
Modern Woodmen of America
0000 0xx Xxxxxx
Xxxx Xxxxxx, Xxxxxxxx 00000
American Life and Casualty Insurance Company
000 0xx Xxxxxx
Xxx Xxxxxx, Xxxx 00000
Massachusetts Mutual Life
Insurance Company
0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Baystate Health Systems, Inc.
c/o Massachusetts Mutual Life Insurance Company
0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Principal Life Insurance Company
000 Xxxx Xxxxxx
Xxx Xxxxxx, XX 00000-0000
