Note Purchase Agreement
-----------------------
[COMPOSITE CONFORMED COPY WITH
SCHEDULES A & B ONLY/WITHOUT EXHIBITS]
XXX ENTERPRISES, INCORPORATED
DATED AS OF MARCH 15, 1998
$58,000,000 6.14% SERIES A SENIOR NOTES DUE 2005
$25,000,000 6.23% SERIES B SENIOR NOTES DUE 2004
$62,000,000 6.47% SERIES C SENIOR NOTES DUE 2010
$40,000,000 6.64% SERIES D SENIOR NOTES DUE 2013
TABLE OF CONTENTS
PAGE
1. AUTHORIZATION OF NOTES
2. SALE AND PURCHASE OF NOTES
3. CLOSING
4. CONDITIONS TO CLOSING
4.1 Representations and Warranties
4.2 Performance; No Default
4.3 Compliance Certificates
4.4 Opinions of Counsel
4.5 Purchase Permitted By Applicable Law, etc.
4.6 Sale of Other Notes
4.7 Payment of Special Counsel Fees
4.8 Private Placement Numbers
4.9 Changes in Corporate Structure
4.10 Proceedings and Documents
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
5.1 Organization; Power and Authority
5.2 Authorization, etc.
5.3 Disclosure
5.4 Organization and Ownership of Shares of Subsidiaries
5.5 Financial Statements
5.6 Compliance with Laws, Other Instruments, etc.
5.7 Governmental Authorizations, etc.
5.8 Litigation; Observance of Statutes and Orders
5.9 Taxes
5.10 Title to Property; Leases
5.11 Licenses, Permits, etc.
5.12 Compliance with ERISA
5.13 Private Offering by the Company
5.14 Use of Proceeds; Margin Regulations
5.15 Existing Indebtedness
5.16 Foreign Assets Control Regulations, etc.
5.17 Status under Certain Statutes
6. REPRESENTATIONS OF THE PURCHASER
6.1 Purchase for Investment
6.2 Source of Funds
7. INFORMATION AS TO COMPANY
7.1 Financial and Business Information
7.2 Officer's Certificate
7.3 Inspection
8. PREPAYMENT OF THE NOTES
8.1 Required Prepayments
8.2 Optional Prepayments with Make-Whole Amount
8.3 Allocation of Partial Prepayments
8.4 Maturity; Surrender, etc.
8.5 Purchase of Notes
8.6 Make-Whole Amount
9. AFFIRMATIVE COVENANTS
9.1 Compliance with Law
9.2 Insurance
9.3 Maintenance of Properties
9.4 Payment of Taxes
9.5 Corporate Existence, etc.
9.6 FCC Filing.
10. NEGATIVE COVENANTS
10.1 Total Indebtedness
10.2 Subsidiary Indebtedness
10.3 Mergers, Consolidations, etc
10.4 Sales of Assets
10.5 Investments
10.6 Liens
10.7 Transactions with Affiliates
11. EVENTS OF DEFAULT
12. REMEDIES ON DEFAULT, ETC.
12.1 Acceleration
12.2 Other Remedies
12.3 Rescission
12.4 No Waivers or Election of Remedies, Expenses, etc.
13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES.
13.1 Registration of Notes
13.2 Transfer and Exchange of Notes
13.3 Replacement of Notes
14. PAYMENTS ON NOTES
14.1 Place of Payment
14.2 Home Office Payment
15. EXPENSES, ETC.
15.1 Transaction Expenses
15.2 Survival
16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT
17. AMENDMENT AND WAIVER
17.1 Requirements
17.2 Solicitation of Holders of Notes
17.3 Binding Effect, etc.
17.4 Notes held by Company, etc.
18. NOTICES
19. REPRODUCTION OF DOCUMENTS
20. CONFIDENTIAL INFORMATION
21. SUBSTITUTION OF PURCHASER
22. MISCELLANEOUS
22.1 Successors and Assigns
22.2 Payments Due on Non-Business Days
22.3 Severability
22.4 Construction
22.5 Counterparts
22.6 Governing Law
SCHEDULE A -- Information Relating to Purchasers
SCHEDULE B -- Defined Terms
SCHEDULE 4.9 -- Changes in Corporate Structure
SCHEDULE 5.3 -- Disclosure Materials
SCHEDULE 5.4 -- Subsidiaries of the Company and Ownership of
Subsidiary Stock
SCHEDULE 5.5 -- Financial Statements
SCHEDULE 5.8 -- Certain Litigation
SCHEDULE 5.11 -- Patents, etc.
SCHEDULE 5.12 -- ERISA Affiliates
SCHEDULE 5.14 -- Use of Proceeds
SCHEDULE 5.15 -- Existing Indebtedness
SCHEDULE 10.2(a) -- Existing Subsidiary Indebtedness
SCHEDULE 10.5(d) -- Existing Investments
SCHEDULE 10.6(a) -- Existing Liens
EXHIBIT 1 -- Form of 6.14% Series A Senior Note due
March 31, 2005
EXHIBIT 2 -- Form of 6.23% Series B Senior Note due
March 31, 2004
EXHIBIT 3 -- Form of 6.47% Series C Senior Note due
March 31, 2010
EXHIBIT 4 -- Form of 6.64% Series D Senior Note due
March 31, 2013
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
EXHIBIT 4.4(c) -- Form of Opinion of Special Communications Counsel
for the Company
XXX ENTERPRISES, INCORPORATED
400 Xxxxxx Building
000 Xxxxx Xxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
$58,000,000 6.14% SERIES A SENIOR NOTES DUE 2005
$25,000,000 6.23% SERIES B SENIOR NOTES DUE 2004
$62,000,000 6.47% SERIES C SENIOR NOTES DUE 2010
$40,000,000 6.64% SERIES D SENIOR NOTES DUE 2013
Dated as of March 15, 1998
To the Purchaser Named on
the Signature Page Hereto
Ladies and Gentlemen:
XXX ENTERPRISES, INCORPORATED, a Delaware corporation (the "Company"), agrees
with you as follows:
1. AUTHORIZATION OF NOTES
The Company will authorize the issue and sale of:
(a) $58,000,000 aggregate principal amount of its 6.14% Series A Senior
Notes due March 31, 2005 (the "Series A Notes", such term to include
each Series A Note delivered from time to time in accordance with any
of this Agreement or the Other Agreements);
(b) $25,000,000 aggregate principal amount of its 6.23% Series B Senior
Notes due March 31, 2004 (the "Series B Notes", such term to include
each Series B Note delivered from time to time in accordance with any
of this Agreement or the Other Agreements);
(c) $62,000,000 aggregate principal amount of its 6.47% Series C Senior
Notes due March 31, 2010 (the "Series C Notes", such term to include
each Series C Note delivered from time to time in accordance with any
of this Agreement or the Other Agreements); and
(d) $40,000,000 aggregate principal amount of its 6.64% Series D Senior
Notes due March 31, 2013 (the "Series D Notes", such term to include
each Series D Note delivered from time to time in accordance with any
of this Agreement or the Other Agreements).
The Series A Notes, Series B Notes, Series C Notes and Series D Notes shall
be referred to in this Agreement collectively as the "Notes", such term to
include any such notes issued in substitution therefor pursuant to Section
13 of this Agreement or the Other Agreements. The Series A Notes, Series B
Notes, Series C Notes and Series D Notes shall be substantially in the
forms set out in Exhibit 1, Exhibit 2, Exhibit 3 and Exhibit 4,
respectively, with such changes therefrom, if any, as may be approved by
you and the Company. Certain capitalized terms used in this Agreement are
defined in Schedule B. References to a "Schedule" or an "Exhibit" are,
unless otherwise specified, to a Schedule or an Exhibit attached to this
Agreement, and references to Sections are, unless otherwise specified,
references to Sections of this Agreement.
2. SALE AND PURCHASE OF NOTES
Subject to the terms and conditions of this Agreement, the Company will
issue and sell to you and you will purchase from the Company, at the
Closing provided for in Section 3, Notes in the principal amount and in the
Series specified opposite your name in Schedule A, at the purchase price of
100% of the principal amount thereof. 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 for the sale at such Closing to each of the Other Purchasers of
Notes in the principal amount and in the Series specified opposite 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 sale and purchase of the Notes to be purchased by you and the Other
Purchasers 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 March 31, 1998 (the "Closing Date") or on such other Business
Day thereafter on or prior to April 10, 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 to be purchased by you in the form of a single
Note (or such greater number of Notes in denominations of at least $100,000
as you may request) in the Series set forth opposite your name in Schedule
A, dated the Closing Date and registered in your name (or in the name of
your nominee), against delivery by you to the Company or its order of
immediately available funds in the amount of the purchase price therefor by
wire transfer of immediately available funds for the account of the Company
to account number 79-39485 at Bank of America National Trust and Savings
Association, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, ABA
#000000000. If at the Closing the Company shall fail to tender such Notes
to you as provided above in this Section 3, 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 purchase and pay for the Notes to be sold to you at the
Closing 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 on the Closing Date.
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.
4.3 Compliance Certificates .
(a) Officer's Certificate. The Company shall have delivered to you an
Officer's Certificate, dated the Closing Date, certifying that the
conditions specified in Sections 4.1, 4.2 and 4.9 have been fulfilled.
(b) Secretary's Certificate. The Company shall have delivered to you a
certificate 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 opinions in form and substance satisfactory to you,
dated the Closing Date from
(a) Lane & Xxxxxxxx, counsel for the Company, substantially in the form
set forth in Exhibit 4.4(a) and covering such other matters incident
to the transactions contemplated hereby as you or your counsel may
reasonably request (and the Company hereby instructs its counsel to
deliver such opinion to you),
(b) Xxxx & Xxxxxx, your special counsel in connection with such
transactions, substantially in the form set forth in Exhibit 4.4(b)
and covering such other matters incident to such transactions as you
may reasonably request and
(c) Wiley, Rein & Fielding, special communications counsel for the
Company, substantially in the form set forth in Exhibit 4.4(c) and
covering such other matters incident to the transactions contemplated
hereby as you or your counsel may reasonably request (and the Company
hereby instructs its special communications counsel to deliver such
opinion to you).
4.5 Purchase Permitted By Applicable Law, etc.
On the Closing Date your purchase 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 G, T 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, which law or
regulation was not in effect on the date hereof. 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 purchase is so permitted.
4.6 Sale of Other Notes .
Contemporaneously with the Closing the Company shall sell to the Other
Purchasers and the Other Purchasers shall purchase the 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 Date the fees, charges and disbursements of
your special counsel referred to in Section 4.4 to the extent reflected in
a statement of such counsel rendered to the Company at least one Business
Day prior to the Closing Date.
4.8 Private Placement Numbers .
A private placement number issued by Standard & Poor's CUSIP Service Bureau
(in cooperation with the Securities Valuation Office of the National
Association of Insurance Commissioners) shall have been obtained for each
Series of Notes.
4.9 Changes in Corporate Structure .
Except as specified in Schedule 4.9, 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.
4.10 Proceedings and Documents .
All corporate and other proceedings in connection with the transactions
contemplated by this Agreement and all documents and instruments incident
to such transactions shall be satisfactory to 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.
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY,
The Company represents and warrants to you that:
5.1 Organization; Power and Authority .
The Company is a corporation duly organized, validly existing and in
good standing under the laws of its jurisdiction of incorporation, and
is duly qualified as a foreign corporation and is in good standing in
each jurisdiction in which such qualification is required by law,
other than those jurisdictions as to which the failure to be so
qualified or in good standing would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
The Company has the corporate power and authority to own or hold under
lease the Properties it purports to own or hold under lease, to
transact the business it transacts and proposes to transact, to
execute and deliver this Agreement and the Other Agreements and the
Notes and to perform the provisions hereof and thereof.
5.2 Authorization, etc.
This Agreement and 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, First Chicago Capital Markets, Inc.,
has delivered to you and each Other Purchaser a copy of a Confidential
Offering Memorandum, dated January 1998, (the "Memorandum"), relating
to the transactions contemplated hereby. Except as disclosed in
Schedule 5.3, this Agreement, the Memorandum, the documents,
certificates or other writings identified in Schedule 5.3 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
September 30, 1997, there has been no change in the financial
condition, operations, business or Properties of the Company or any of
its Subsidiaries except changes that individually or in the aggregate
would not reasonably be expected to have a Material Adverse Effect.
5.4 Organization and Ownership of Shares of Subsidiaries .
(a) Schedule 5.4 is (except as noted therein) a complete and correct
list of 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 or similar equity interests outstanding owned by
the Company and each other Subsidiary.
(b) All of the outstanding shares of capital stock or similar equity
interests of each Subsidiary shown in Schedule 5.4 as being owned
by the Company and its Subsidiaries have been validly issued, are
fully paid and nonassessable and are owned by the Company or
another Subsidiary free and clear of any Lien (except as
otherwise disclosed in Schedule 5.4).
(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
would 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.
5.5 Financial Statements .
The Company has delivered to each Purchaser copies of the financial
statements of the Company and its Subsidiaries listed on Schedule 5.5.
All of said financial statements (including in each case the related
schedules and notes) fairly present in all material respects the
consolidated financial position of the Company and its Subsidiaries as
of the 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 Material
agreement or instrument to which the Company or any Subsidiary is
bound or by which the Company or any Subsidiary or any of their
respective Properties may be bound or affected;
(b) conflict with or result in a breach of any of the terms,
conditions or provisions of any order, judgment, decree, or
ruling of any court, arbitrator or Governmental Authority
applicable to the Company or any Subsidiary; or
(c) violate any provision of any statute or other rule or regulation
of any Governmental Authority applicable to the Company or any
Subsidiary.
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 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,
would reasonably be expected to have a Material Adverse Effect.
(b) Neither the Company nor any Subsidiary is in default under 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, would reasonably
be expected to have a Material Adverse Effect.
5.9 Taxes.
The Company and its Subsidiaries have filed all income 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 payable by them, 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 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 September 30, 1993, except for a
disputed amount related to the fiscal year ended September 30, 1990,
for which adequate reserves have been provided.
5.10 Title to Property; Leases .
The Company and its Subsidiaries have good and sufficient title to
their respective Material Properties, 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, except for those defects in title and
Liens that, individually or in the aggregate, would not have a
Material Adverse Effect. All Material leases 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, 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 are Material, without known conflict with the
rights of others, except for those conflicts that, individually or in
the aggregate, would not have a Material Adverse Effect.
5.12 Compliance with ERISA .
(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 would
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 its 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 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 of the funds 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).
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 39 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 as set
forth in Schedule 5.14. 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 G of the Board of Governors of the Federal Reserve System
(12 CFR 207), 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 G.
5.15 Existing Indebtedness .
Except as described therein, Schedule 5.15 sets forth a complete and
correct list of all outstanding Indebtedness of the Company and its
Subsidiaries as of March 3, 1998, since which date there has been no
Material change in the amounts, interest rates, sinking funds,
installment payments or maturities of the Indebtedness of the Company
or its Subsidiaries. Neither the Company nor any Subsidiary is in
default and no waiver of default is currently in effect in the payment
of any principal or interest on any Indebtedness of the Company or
such Subsidiary, and no event or condition exists with respect to any
Indebtedness of the Company or any Subsidiary that would permit (or
that with notice or the lapse of time, or both, would permit) one or
more Persons to cause such Indebtedness to become due and payable
before its stated maturity or before its regularly scheduled dates of
payment. There is currently in effect a Waiver to Note Purchase
Agreement, dated as of August 29, 1997, between the Company and
Teachers Insurance and Annuity Association of America, as amended by
the First Amendment of Waiver to Note Purchase Agreement, dated as of
March 5, 1998. Upon the application of the proceeds of the sale of the
Notes as set forth in Schedule 5.14, the Company will be in compliance
with the provision of the aforesaid Note Purchase Agreement that is
the subject of such Waiver.
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.
6. REPRESENTATIONS OF THE PURCHASER
6.1 Purchase for Investment .
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 or resale 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 Department of Labor Prohibited Transaction Exemption 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 exceed 10% of the
total reserves and liabilities of such general account (exclusive
of separate account liabilities) plus surplus, as set forth in
the NAIC Annual Statement filed with your state of domicile and
that such acquisition is eligible for and satisfies the other
requirements of such exemption; 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 Prohibited Transaction Exemption
("PTE") 00-0 (xxxxxx Xxxxxxx 00, 0000), xx (xx) 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 clause (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 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
clause (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 clause (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.
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) a consolidated balance sheet of the Company and its
Subsidiaries as at the end of such quarter, and
(ii) consolidated statements of income, changes in shareholders'
equity and cash flows of the Company and its Subsidiaries,
for such quarter and (in the case of the second and third
quarters) for the portion of the fiscal year ending with
such quarter,
setting forth in each case in comparative form the figures for the
corresponding periods in the previous fiscal year, all in reasonable
detail, prepared in accordance with GAAP applicable to quarterly
financial statements generally, and certified by a Senior Financial
Officer as fairly presenting, in all material respects, the financial
position of the companies being reported on and their results of
operations and cash flows, subject to changes resulting from year-end
adjustments, provided that delivery within the time period specified
above of copies of the Company's Quarterly Report on Form 10-Q
prepared in compliance with the requirements therefor and filed with
the Securities and Exchange Commission shall be deemed to satisfy the
requirements of this Section 7.1(a);
(b) Annual Statements -- within 120 days after the end of each fiscal
year of the Company, duplicate copies of,
(i) a consolidated balance sheet of the Company and its
Subsidiaries, as at the end of such year, and
(ii) consolidated statements of income, changes in shareholders'
equity and cash flows of the Company and its Subsidiaries,
for such year,
setting forth in each case in comparative form the figures for the
previous fiscal year, all in reasonable detail, prepared in accordance
with GAAP, and accompanied by an opinion thereon of independent
certified public accountants of recognized national standing, which
opinion shall state that such financial statements present fairly, in
all material respects, the financial position of the companies being
reported upon and their results of operations and cash flows and have
been prepared in conformity with GAAP, and that the examination of
such accountants in connection with such financial statements has been
made in accordance with generally accepted auditing standards, and
that such audit provides a reasonable basis for such opinion in the
circumstances, provided that the delivery within the time period
specified above of the Company's Annual Report on Form 10-K for such
fiscal year (together with the Company's annual report to
shareholders, if any, prepared pursuant to Rule 14a-3 under the
Exchange Act) prepared in accordance with the requirements therefor
and filed with the Securities and Exchange Commission shall be deemed
to satisfy the requirements of this Section 7.1(b);
(c) SEC and Other Reports -- promptly upon their becoming available,
one copy of (i) each financial statement, report, notice or proxy
statement sent by the Company or any Subsidiary to public
securities holders generally, and (ii) each regular or periodic
report, each registration statement (other than on Form S-8 or
similar form) that shall have become effective (without exhibits
except as expressly requested by such holder), and each final
prospectus and all amendments thereto filed by the Company or any
Subsidiary with the Securities and Exchange Commission;
(d) 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, 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;
(e) 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(b) of ERISA and the regulations thereunder,
for which notice thereof has not been waived pursuant to
such regulations as in effect on the date hereof; 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, would reasonably be expected to have a Material
Adverse Effect; and
(f) 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.
7.2 Officer's Certificate .
Each set of financial statements delivered to a holder of Notes
pursuant to Section 7.1(a) or Section 7.1(b) hereof shall be
accompanied by a certificate of a Senior Financial Officer setting
forth:
(a) Covenant Compliance -- the information (including detailed
calculations) required in order to establish whether the Company
was in compliance with the requirements of Section 10.1 through
Section 10.6, 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 to the best of such officer's
knowledge no condition or event that constitutes a Default or an
Event of Default existed during the period covered by the
statements 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) 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. PREPAYMENT OF THE NOTES
8.1 Required Prepayments.
(a) Series A Notes. On March 31, 2001 and on each March 31 thereafter
to and including March 31, 2004, the Company will prepay
$11,600,000 principal amount (or such lesser principal amount as
shall then be outstanding) of the Series A Notes at par and
without payment of the Make-Whole Amount or any premium, provided
that upon any partial prepayment of the Notes pursuant to Section
8.2 or purchase of the Notes permitted by Section 8.5 the
principal amount of each required prepayment of the Series A
Notes becoming due under this Section 8.1(a) on and after the
date of such prepayment or purchase shall be reduced in the same
proportion as the aggregate unpaid principal amount of the Notes
is reduced as a result of such prepayment or purchase. On March
31, 2005 the Company will pay the entire principal amount of the
Series A Notes remaining outstanding at par and without payment
of the Make-Whole Amount or any premium.
(b) Series B Notes. There shall be no required prepayments in respect
of the Series B Notes. On March 31, 2004 the Company will pay the
entire principal amount of the Series B Notes remaining
outstanding at par and without payment of the Make-Whole Amount
or any premium.
(c) Series C Notes. On March 31, 2006 and on each March 31 thereafter
to and including March 31, 2009, the Company will prepay
$12,400,000 principal amount (or such lesser principal amount as
shall then be outstanding) of the Series C Notes at par and
without payment of the Make-Whole Amount or any premium, provided
that upon any partial prepayment of the Notes pursuant to Section
8.2 or purchase of the Notes permitted by Section 8.5 the
principal amount of each required prepayment of the Series C
Notes becoming due under this Section 8.1(c) on and after the
date of such prepayment or purchase shall be reduced in the same
proportion as the aggregate unpaid principal amount of the Notes
is reduced as a result of such prepayment or purchase. On March
31, 2010 the Company will pay the entire principal amount of the
Series C Notes remaining outstanding at par and without payment
of the Make-Whole Amount or any premium.
(d) Series D Notes. There shall be no required prepayments in respect
of the Series D Notes. On March 31, 2013 the Company will pay the
entire principal amount of the Series D Notes remaining
outstanding at par and without payment of the Make-Whole Amount
or any premium.
8.2. Optional Prepayments with Make-Whole Amount .
The Company may, at its option, upon notice as provided below, prepay
at any time all, or from time to time any part of, the Notes, in an
amount not less than $1,000,000 in the case of a partial prepayment,
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 specify such date, the aggregate principal
amount of the Notes to be prepaid on such date, the principal amount
of each Note held by such holder to be prepaid (determined in
accordance with Section 8.3), and the interest to be paid on the
prepayment date with respect to such principal amount being prepaid,
and shall be accompanied by a certificate of a Senior Financial
Officer as to the estimated Make-Whole Amount due in connection with
such prepayment (calculated as if the date of such notice were the
date of the prepayment), setting forth the details of such
computation. Two Business Days prior to such prepayment, the Company
shall deliver to each holder of Notes 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 Notes, the principal
amount of the Notes to be prepaid shall be allocated among all of the
Notes at the time outstanding in proportion, as nearly as practicable,
to the respective unpaid principal amounts thereof not theretofore
called for prepayment, without distinguishing among the different
Series.
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 Purchase of Notes.
The Company will not, and will not permit any Affiliate to, purchase,
redeem, prepay or otherwise acquire, directly or indirectly, any of
the outstanding Notes except (a) upon the payment or prepayment of the
Notes in accordance with the terms of this Agreement and the Notes or
(b) pursuant to an offer to purchase made by the Company or an
Affiliate pro rata to the holders of all Notes of all Series at the
time outstanding upon the same terms and conditions. Any such offer
shall provide each holder with sufficient information to enable it to
make an informed decision with respect to such offer, and shall remain
open for at least 30 Business Days. If the holders of more than 2% of
the principal amount of the Notes then outstanding accept such offer,
the Company shall promptly notify the remaining holders of such fact
and the expiration date for the acceptance by holders of Notes of such
offer shall be extended by the number of days necessary to give each
such remaining holder at least 30 Business Days from its receipt of
such notice to accept such offer. The Company will promptly cancel all
Notes acquired by it or any Affiliate pursuant to any payment,
prepayment or purchase of Notes pursuant to any provision of this
Agreement and no Notes may be issued in substitution or exchange for
any such Notes.
8.6 Make-Whole Amount.
The term "Make-Whole Amount" means, with respect to any Note of any
Series, an amount equal to the excess, if any, of the Discounted Value
of the Remaining Scheduled Payments with respect to the Called
Principal of such Note over the amount of such Called Principal,
provided that the Make-Whole Amount may in no event be less than zero.
For the purposes of determining the Make-Whole Amount, the following
terms have the following meanings:
"Called Principal" means, with respect to any Note, the principal of
such Note that is to be prepaid pursuant to Section 8.2 or has become
or is declared to be immediately due and payable pursuant to Section
12.1, as the context requires.
"Discounted Value" means, with respect to the Called Principal of any
Note, the amount obtained by discounting all Remaining Scheduled
Payments with respect to such Called Principal from their respective
scheduled due dates to the Settlement Date with respect to such Called
Principal, in accordance with accepted financial practice and at a
discount rate (applied on the same periodic basis as that on which
interest on the Notes is payable) equal to the Reinvestment Yield with
respect to such Called Principal.
"Discount Factor" means, with respect to the (a) Series A Notes, 0.35%
per annum, (b) Series B Notes, 0.38% per annum, (c) Series C Notes,
0.43% per annum and (d) Series D Notes, 0.48% per annum.
"Reinvestment Yield" means, with respect to the Called Principal of
any Note, the sum of the Discount Factor of such Note plus the yield
to maturity implied by (i) the yields reported, as of 10:00 A.M. (New
York City time) on the second Business Day preceding the Settlement
Date with respect to such Called Principal, on the display designated
as "Page 678" on the Telerate Access Service (or such other display as
may replace Page 678 on Telerate Access Service) for actively traded
U.S. Treasury securities having a maturity equal to the Remaining
Average Life of such Called Principal as of such Settlement Date, or
(ii) if such yields are not reported as of such time or the yields
reported as of such time are not ascertainable, the Treasury Constant
Maturity Series Yields reported, for the latest day for which such
yields have been so reported as of the second Business Day preceding
the Settlement Date with respect to such Called Principal, in Federal
Reserve Statistical Release H.15 (519) (or any comparable successor
publication) for actively traded U.S. Treasury securities having a
constant maturity equal to the Remaining Average Life of such Called
Principal as of such Settlement Date. Such implied yield will be
determined, if necessary, by (a) converting U.S. Treasury xxxx
quotations to bond-equivalent yields in accordance with accepted
financial practice and (b) interpolating linearly between (1) the
actively traded U.S. Treasury security with the duration closest to
and greater than the Remaining Average Life and (2) the actively
traded U.S. Treasury security with the duration closest to and less
than the Remaining Average Life.
"Remaining Average Life" means, with respect to any Called Principal,
the number of years (calculated to the nearest one-twelfth year)
obtained by dividing (i) such Called Principal into (ii) the sum of
the products obtained by multiplying (a) the principal component of
each Remaining Scheduled Payment with respect to such Called Principal
by (b) the number of years (calculated to the nearest one-twelfth
year) that will elapse between the Settlement Date with respect to
such Called Principal and the scheduled due date of such Remaining
Scheduled Payment.
"Remaining Scheduled Payments" means, with respect to the Called
Principal of any Note, all payments of such Called Principal and
interest thereon that would be due after the Settlement Date with
respect to such Called Principal if no payment of such Called
Principal were made prior to its scheduled due date, provided that if
such Settlement Date is not a date on which interest payments are due
to be made under the terms of the Notes, then the amount of the next
succeeding scheduled interest payment will be reduced by the amount of
interest accrued to such Settlement Date and required to be paid on
such Settlement Date pursuant to Section 8.2 or Section 12.1.
"Settlement Date" means, with respect to the Called Principal of any
Note, the date on which such Called Principal is to be prepaid
pursuant to Section 8.2 or has become or is declared to be immediately
due and payable pursuant to Section 12.1, as the context requires.
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, including, without limitation,
Environmental Laws, 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 would not reasonably
be expected, individually or in the aggregate, to have a Material
Adverse Effect.
9.2. Insurance.
The Company will, and will cause each of its 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 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 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 would
not, individually or in the aggregate, have a Material Adverse Effect.
9.4. Payment of Taxes.
The Company will, and will cause each of its Subsidiaries to, file all
income tax or similar 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 payable by any of them, to the extent such taxes
and assessments have become due and payable and before they have
become delinquent, provided that neither the Company nor any
Subsidiary need pay any such tax or assessment 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 and
assessments in the aggregate would 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 Section 10.3 and Section
10.4, the Company will at all times preserve and keep in full force
and effect the corporate existence of each of its Subsidiaries 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 would not, individually or in the
aggregate, have a Material Adverse Effect.
9.6. FCC Filing.
All information required to be filed with the Federal Communications
Commission with respect to this Agreement and the Notes will be filed
by the Company within 30 days after the Closing Date.
10. NEGATIVE COVENANTS
The Company covenants that so long as any of the Notes are outstanding:
10.1 Total Indebtedness.
(a) Prior to a Spin-Off. The Company will not, and will not permit
any Subsidiary to, at any time, directly or indirectly create,
incur, issue, assume, guaranty or otherwise become liable with
respect to any Indebtedness unless, immediately after giving
effect thereto, the ratio of
(i) Consolidated Total Debt to
(ii) Consolidated Operating Cash Flow, calculated giving effect
to Pro Forma Adjustments if applicable, for the period of
four consecutive fiscal quarters of the Company then most
recently ended
would not exceed 3.5 to 1.0.
(b) After a Spin-Off. The Company will not at any time, on and
after the date of a Spin-Off, permit the ratio of
(i) Consolidated Total Debt to
(ii) Consolidated Operating Cash Flow, calculated giving effect
to Pro Forma Adjustments if applicable, for the period of
four consecutive fiscal quarters of the Company then most
recently ended
to exceed 3.0 to 1.0.
10.2. Subsidiary Indebtedness.
The Company will not, at any time, permit any Subsidiary to have any
Indebtedness outstanding other than:
(a) Indebtedness of a Subsidiary existing on the Closing Date and
described in Schedule 10.2(a) or an extension, renewal or
refunding of such Indebtedness, provided that the principal
amount of such extended, renewed or refunded Indebtedness does
not exceed the principal amount of the related Indebtedness
outstanding immediately prior to such extension, renewal or
refunding;
(b) Indebtedness of a Subsidiary owing to the Company or another
Subsidiary;
(c) Indebtedness of a Person outstanding immediately prior to its
becoming a Subsidiary, provided that
(i) such Indebtedness shall not have been created or incurred in
contemplation of such Person's becoming a Subsidiary and
(ii) immediately after such Person becomes a Subsidiary, no
Default or Event of Default would exist; and
(d) additional Indebtedness of the Subsidiaries not otherwise
permitted pursuant to this Section 10.2, so long as immediately
after giving effect to such Indebtedness
(i) no Default or Event of Default would exist and
(ii) the aggregate amount of all Indebtedness incurred, issued,
assumed, outstanding or guarantied pursuant to this clause
(d) does not exceed 20% of Consolidated Operating Cash Flow
for the period of four consecutive fiscal quarters of the
Company then most recently ended.
10.3. Mergers, Consolidations, etc.
The Company shall not consolidate with or merge with any other
corporation or convey, transfer or lease substantially all of its
assets in a single transaction or series of transactions to any Person
unless:
(a) the successor formed by such consolidation or the survivor of
such merger or the Person that acquires by conveyance, transfer
or lease substantially all of the assets of the Company as an
entirety, as the case may be, shall be a solvent corporation
organized and existing under the laws of the United States of
America or any State thereof (including the District of
Columbia), and, if the Company is not such corporation, such
corporation shall have executed and delivered to each holder of
any Notes its assumption of the due and punctual performance and
observance of each covenant and condition of this Agreement, the
Other Agreements and the Notes; and
(b) immediately after giving effect to such transaction,
(i) no Default or Event of Default shall have occurred and be
continuing; and
(ii) the Company would be permitted to incur at least $1.00 of
Indebtedness pursuant to the provisions of Section 10.1.
No such conveyance, transfer or lease of substantially all of the
assets of the Company shall have the effect of releasing the Company
or any successor corporation that shall theretofore have become such
in the manner prescribed in this Section 10.3 from its liability under
this Agreement or the Notes.
10.4. Sales of Assets.
(a) Transfers of Property. The Company will not, and will not permit
any Subsidiary to, sell (including, without limitation, any sale
and subsequent leasing as lessee of such Property), lease as
lessor, transfer, or otherwise dispose of a Substantial Part of
the Property of the Company and the Subsidiaries (individually, a
"Transfer" and collectively, "Transfers"), except:
(i) Transfers from a Subsidiary to the Company;
(ii) any other Transfer (other than a Spin-Off) at any time of
any Property to a Person, other than an Affiliate (whether
effected in a single transaction or in a series of related
transactions) (for purposes of this clause (ii), a "current
Transfer") if each of the following conditions would be
satisfied with respect to such Transfer:
(A) an Acceptable Consideration is received in respect of
such current Transfer;
(B) immediately after giving effect to such current
Transfer, no Default or Event of Default would exist;
and
(C) within the six month period immediately prior to and
the 12 month period immediately following such current
Transfer, the Net Proceeds Amount of such current
Transfer is applied by the Company or such Subsidiary
to the purchase of operating assets of the Company or
any Subsidiary or to a Debt Prepayment Application; and
(iii)any other Transfer at any time of the Property of a
business segment or a business group of the Company to a
Person (a "Spin-Off"), if each of the following conditions
would be satisfied with respect to such Transfer:
(A) the only consideration in respect of such Spin-Off is
shares of the capital stock of such Person (or any of
its Affiliates), which shares are distributed to the
shareholders of the Company;
(B) immediately after giving effect to such Spin-Off, no
Default or Event of Default would exist; and
(C) immediately after giving effect to such Spin-Off, the
ratio of Consolidated Total Debt to Consolidated
Operating Cash Flow, calculated giving effect to Pro
Forma Adjustments for the period of four consecutive
fiscal quarters of the Company then most recently
ended, would not exceed 3.0 to 1.0.
Within five days after any Spin-Off, the Company shall deliver
to each holder of Notes a written notice describing, in
reasonable detail, the nature (including a description and
value of the Property Transferred) and the date of such
Spin-Off.
(b) Transfers of Subsidiary Stock. The Company will not, and will not
permit any Subsidiary to, Transfer any shares of the stock (or
any warrants, rights or options to purchase stock or other
Securities exchangeable for or convertible into stock) of a
Subsidiary (such stock, warrants, rights, options and other
Securities herein called "Subsidiary Stock"), nor will any
Subsidiary issue, sell or otherwise dispose of any of its own
Subsidiary Stock; provided, however, that the foregoing
restrictions do not apply to:
(i) the issuance by a Subsidiary of any of its own Subsidiary
Stock to the Company or a Wholly-Owned Subsidiary;
(ii) Transfers by a Subsidiary of any of Subsidiary Stock to the
Company or a Wholly-Owned Subsidiary;
(iii)the issuance by a Subsidiary of directors' qualifying
shares; and
(iv) the Transfer of all of the Subsidiary Stock of a Subsidiary
if:
(A) such Transfer satisfies the requirements of Section
10.4(a)(ii);
(B) in connection with such Transfer, the entire investment
(whether represented by stock, Indebtedness, claims or
otherwise) of the Company and the Subsidiaries in such
Subsidiary is Transferred to a Person other than the
Company or a Subsidiary not simultaneously being
disposed of;
(C) the Subsidiary being disposed of has no continuing
investment in the Company or any Subsidiary not
simultaneously being disposed of; and
(D) immediately before and after the consummation of such
Transfer, and after giving effect thereto, no Default
or Event of Default would exist.
For purposes of determining the book value of Property
constituting Subsidiary Stock being Transferred as provided in
clause (iv) above, such book value shall be deemed to be the
aggregate book value of all assets of the Subsidiary that shall
have issued such Subsidiary Stock.
(c) Subsidiary Mergers, etc. Any merger or consolidation of any
Subsidiary with or into any Person that results in a Person other
than the Company or a Wholly-Owned Subsidiary owning Subsidiary
Stock of such Subsidiary shall be deemed to be a Transfer of the
Subsidiary Stock of such Subsidiary.
10.5 Investments.
The Company will not, and will not permit any Subsidiary to, make any
Investment other than:
(a) Investments in Property to be used in the ordinary course of
business of the Company and the Subsidiaries;
(b) Investments consisting of current assets arising from the sale of
goods and services in the ordinary course of business of the
Company and the Subsidiaries;
(c) Investments in the ordinary course of business of the Company and
the Subsidiaries in one or more Subsidiaries or any corporation
that concurrently with such Investment becomes a Subsidiary;
(d) Investments existing on the Closing Date and listed in Schedule
10.5(d);
(e) Investments in United States Governmental Securities, provided
that such Investments mature within 365 days from the date of
acquisition thereof;
(f) Investments in certificates of deposit or banker's acceptances
maturing within 365 days from the date of acquisition thereof
issued by any Acceptable Bank;
(g) Investments in commercial paper having, at the time of
acquisition, an assigned rating of at xxxxx "X0" by S&P or "P1"
by Xxxxx'x (or an equivalent rating by another credit rating
agency of recognized national standing in the United States of
America), provided that such commercial paper matures within 270
days from the date of acquisition thereof;
(h) Investments in Repurchase Agreements;
(i) Investments in any tax-exempt obligation of any State of the
United States of America or municipality thereof that at the time
of acquisition thereof have an assigned rating of at least "AA"
by S&P or "Aa2" by Xxxxx'x (or an equivalent rating by another
credit rating agency of recognized national standing in the
United States of America), provided that such obligations mature
within 365 days from the date of acquisition thereof;
(j) Investments consisting of contributions by the Company to a
supplementary benefit plan for executives of the Company,
provided that (i) such Investments do not in the aggregate exceed
$1,000,000 during any fiscal year of the Company and (ii)
immediately before, and after giving effect to, each such
Investment, no Default or Event of Default exists or would exist;
and
(k) Investments not otherwise included in clause (a) through clause
(j) above, provided that the aggregate book value of all such
Investments does not at any time exceed 20% of Consolidated
Operating Cash Flow for the period of four consecutive fiscal
quarters of the Company then most recently ended.
10.6 Liens.
(a) Negative Pledge. The Company will not, and will not permit any
Subsidiary to, cause or permit, or agree or consent to cause or
permit in the future (upon the happening of a contingency or
otherwise), any of their respective Properties, whether now owned
or hereafter acquired, at any time to be subject to a Lien
except:
(i) Liens for taxes, assessments or other similar governmental
charges that are not yet due and payable;
(ii) Liens incurred or deposits made in the ordinary course of
business in respect of statutory obligations or claims or
demands of materialmen, mechanics, carriers, warehousemen,
landlords and other like Persons, provided that the
obligations secured by such Liens shall not be in default
and the title of the Company or the Subsidiary, as the case
may be, to, and its right to use, the Property subject to
such Lien, is not materially adversely affected thereby;
(iii)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 (other
than any Lien imposed by ERISA); (B) to secure the
performance of letters of credit, bids, tenders, sales
contracts, leases (other than Capital Leases), surety
and performance bonds (of a type other than set forth
in clause (iv) of this Section 10.6(a)) and other
ordinary course obligations not incurred in connection
with the borrowing of money, the obtaining of advances
or the payment of the deferred purchase price of
Property, and
(iv) Liens, arising in connection with court proceedings,
(A) in the nature of attachments, remedies and judgments,
provided that the execution or other enforcement of
such Liens is effectively stayed and the claims secured
thereby are being actively contested in good faith and
by appropriate proceedings, and
(B) securing appeal bonds, supersedeas bonds and other
similar Liens 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 each judgment secured by a Lien described in
this clause (iv) is, within 60 days after entry thereof,
discharged or the enforcement thereof is stayed pending
appeal, or is discharged within 60 days after the expiration
of such stay;
(v) reservations, exceptions, encroachments, easements, rig
hts-of-way, covenants, conditions, restrictions and other
similar title exceptions or encumbrances affecting real
Property, provided they do not in the aggregate materially
detract from the value of such real Property or materially
interfere with their use in the ordinary conduct of the
owning Person's business;
(vi) Liens on Property of the Company or a Subsidiary, provided
that such Liens secure only obligations owing to the Company
or any other Subsidiary;
(vii) Liens outstanding on the Closing Date and listed in
Schedule 10.6(a);
(viii) any Lien on Property that is acquired or constructed by
the Company or any Subsidiary after the Closing Date that
secures Indebtedness incurred by the owner of such Property
to pay for all or a portion of the related purchase price or
construction costs of such Property or any improvement
thereon, provided that
(A) such Lien shall not extend to or cover any Property
other than Property or any improvement thereon acquired
or constructed after the Closing Date with the proceeds
of the Indebtedness secured thereby (and shall not
secure Indebtedness other than such Indebtedness) and,
if required by the terms of the instrument originally
creating such Lien, other Property that is an
improvement to or is acquired for specific use in
connection with such acquired Property;
(B) such Lien shall secure Indebtedness in an amount not
exceeding 100% of the lesser of (1) the cost of
acquisition or construction of the Property to which
such Indebtedness relates and (2) the Fair Market Value
of the Property to which such Indebtedness relates,
determined, in each case, at the time of the incurrence
of such Indebtedness; and
(C) such Lien shall be created contemporaneously with, or
within 180 days after, the acquisition or substantial
completion of such Property;
(ix) any Lien existing on Property of a Person immediately prior
to its being consolidated with or merged into the Company or
a Subsidiary or its becoming a Subsidiary, or any Lien
existing on any Property acquired by the Company or any
Subsidiary at the time such Property is so acquired (whether
or not the Indebtedness secured thereby shall have been
assumed), provided that
(A) no such Lien shall have been created or assumed in
contemplation of such consolidation or merger or such
Person's becoming a Subsidiary or such acquisition of
Property; and
(B) each such Lien shall extend solely to the item or items
of Property so acquired and, if required by the terms
of the instrument originally creating such Lien, other
Property that is an improvement to or is acquired for
specific use in connection with such acquired Property;
(x) Liens securing renewals, extensions (as to time) and
refinancing of Indebtedness secured by Liens permitted by
clause (vii), clause (viii) or clause (ix) of this Section
10.6(a), provided that
(A) the amount of Indebtedness secured by each such Lien is
not increased in excess of the amount of Indebtedness
outstanding on the date of such renewal, extension or
refinancing, and the maturity of such Indebtedness is
not shortened;
(B) none of such Liens is extended to include any
additional Property of the Company or any Subsidiary;
and
(C) immediately after such renewal, extension or refunding,
no Default or Event of Default would exist; and
(xi) Liens securing Indebtedness other than those Liens permitted
by clause (i) through clause (x) of this Section 10.6(a),
provided that, immediately after, and immediately after
giving effect to, the incurrence of any Indebtedness secured
by any such Lien, the sum of
(A) the aggregate amount of all Indebtedness secured by
such Liens plus
(B) the aggregate amount of all Indebtedness outstanding
pursuant to Section 10.2(d),
would not exceed 25% of Consolidated Operating Cash Flow for
the period of four consecutive fiscal quarters of the
Company then most recently ended.
(b) Equal and Ratable Lien; Equitable Lien. In case any Property
shall be subjected to a Lien in violation of Section 10.6(a), the
Company will forthwith make or cause to be made provision whereby
the Notes will be secured equally and ratably as to such Property
with all other obligations secured thereby pursuant to such
agreements and instruments as shall be approved by the Required
Holders (and, in connection therewith, the Company shall pay any
applicable stamp tax, documentary tax, recording fee or tax or
other similar tax), and the Company will promptly cause to be
delivered to each holder of a Note an opinion of independent
counsel satisfactory to the Required Holders to the effect that
such agreements and instruments are enforceable (subject to
customary bankruptcy exceptions not related to fraudulent
conveyances) in accordance with their terms, and in any such case
the Notes shall have the benefit, to the fullest extent that, and
with such priority as, the holders of Notes may be entitled under
applicable law, of an equitable Lien on such Property (and any
proceeds thereof) securing the Notes (provided that,
notwithstanding the foregoing, each holder of Notes shall have
the right to elect at any time, by delivery of written notice of
such election to the Company, to cause the Notes held by such
holder not to be secured by such Lien or such equitable Lien).
Any violation of this Section 10.6 will constitute an Event of
Default, whether or not any such provision is made pursuant to
this Section 10.6(b).
10.7 Transactions with Affiliates .
The Company will not, and will not permit any Subsidiary to, enter
into, directly or indirectly, any Material transaction or Material
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 Subsidiary), except pursuant to the reasonable requirements
of the Company's or such Subsidiary's business and upon fair and
reasonable terms no less favorable to the Company or such Subsidiary
than would be obtainable in a comparable arm's-length transaction with
a Person not an Affiliate.
11. EVENTS OF DEFAULT
An "Event of Default" shall exist if any of the following conditions
or events shall occur and be continuing:
(a) the Company defaults in the payment of any principal or
Make-Whole Amount, if any, on any Note when the same becomes due
and payable, whether at maturity or at a date fixed for
prepayment or by declaration or otherwise; or
(b) the Company defaults in the payment of any interest on any Note
for more than five Business Days after the same becomes due and
payable; or
(c) the Company defaults in the performance of or compliance with any
term contained in Section 10.1 through Section 10.6, inclusive;
or
(d) the Company defaults in the performance of or compliance with any
term contained herein (other than those referred to in clauses
(a), (b) and (c) of this Section 11) and such default is not
remedied within 30 days after the earlier of (i) a Responsible
Officer obtaining actual knowledge of such default and (ii) the
Company receiving written notice of such default from any holder
of a Note (any such written notice to be identified as a "notice
of default" and to refer specifically to this clause (d) of
Section 11); or
(e) 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) (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 that is outstanding in an aggregate principal amount
of at least $5,000,000 beyond any period of grace provided with
respect thereto, or
(ii) the Company or any Significant Subsidiary is in default in
the performance of or compliance with any term of any evidence of
any Indebtedness in an aggregate outstanding principal amount of
at least $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 due and payable before its stated
maturity or before its regularly scheduled dates of payment; or
(g) 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) a court or governmental authority of competent jurisdiction
enters an order appointing, without consent by the Company or any
of its Significant Subsidiaries, a custodian, receiver, trustee
or other officer with similar powers with respect to it or with
respect to any substantial part of its Property, or constituting
an order for relief or approving a petition for relief or
reorganization or any other petition in bankruptcy or for
liquidation or to take advantage of any bankruptcy or insolvency
law of any jurisdiction, or ordering the dissolution, winding-up
or liquidation of the Company or any of its Significant
Subsidiaries, or any such petition shall be filed against the
Company or any of its Significant Subsidiaries and such petition
shall not be dismissed within 60 days; or
(i) 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 90 days after entry thereof, bonded,
discharged or stayed pending appeal, or are not discharged within
90 days after the expiration of such stay; or
(j) (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 $1,000,000,
(iv) the Company or any ERISA Affiliate shall have incurred or is
reasonably expected to incur any liability pursuant to Title
I or IV of ERISA or the penalty or excise tax provisions of
the Code relating to employee benefit plans, other than
excise taxes in respect of "excess contributions" and
"excess aggregate contributions" (as such terms are defined
in Section 401(k)(8)(B) and Section 401(m)(6)(B) ERISA) in
an aggregate amount not exceeding the amount of such excess
contributions or such excess aggregate contributions
recovered by the Company,
(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 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, would reasonably be expected to have a Material
Adverse Effect. As used in this clause (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
clause (g) or clause (h) of Section 11 (other than an Event of
Default described in clause (g)(i) or described in clause (g)(vi)
by virtue of the fact that such clause encompasses clause (g)(i))
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, the
Required Holders may at any time at its or their option, by
notice or notices to the Company, declare all the Notes then
outstanding to be immediately due and payable.
(c) If any Event of Default described in clause (a) or clause (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.
At any time after any Notes have been declared due and payable
pursuant to clause (b) or clause (c) of Section 12.1, the Required
Holders, by written notice to the Company, may rescind and annul any
such declaration and its consequences if (a) the Company has paid all
overdue interest on the Notes, all principal of and Make-Whole Amount,
if any, on any Notes that are due and payable and are unpaid other
than by reason of such declaration, and all interest on such overdue
principal and Make-Whole Amount, if any, and (to the extent permitted
by applicable law) any overdue interest in respect of the Notes, at
the Default Rate, (b) all Events of Default and Defaults, other than
non-payment of amounts that have become due solely by reason of such
declaration, have been cured or have been waived pursuant to Section
17, and (c) no judgment or decree has been entered for the payment of
any monies due pursuant hereto or to the Notes. No rescission and
annulment under this Section 12.3 will extend to or affect any
subsequent Event of Default or Default or impair any right consequent
thereon.
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.
13.1 Registration of Notes.
The Company shall keep at its principal executive office a register
for the registration and registration of transfers of Notes. The name
and address of each holder of one or more Notes, each transfer thereof
and the name and address of each transferee of one or more Notes shall
be registered in such register. Prior to due presentment for
registration of transfer, the Person in whose name any Note shall be
registered shall be deemed and treated as the owner and holder thereof
for all purposes hereof, and the Company shall not be affected by any
notice or knowledge to the contrary. The Company shall give to any
holder of a Note that is an Institutional Investor, promptly upon
request therefor, a complete and correct copy of the names and
addresses of all registered holders of Notes.
13.2 Transfer and Exchange of Notes.
Upon surrender of any Note at the principal executive office of the
Company for registration of transfer or exchange (and in the case of a
surrender for registration of transfer, duly endorsed or accompanied
by a written instrument of transfer duly executed by the registered
holder of such Note or its attorney duly authorized in writing and
accompanied by the address for notices of each transferee of such Note
or part thereof), the Company shall execute and deliver, at the
Company's expense (except as provided below), one or more new Notes
(as requested by the holder thereof) in exchange therefor, of the same
Series as such surrendered Note and 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 1, Exhibit
2, Exhibit 3 or Exhibit 4, as applicable. 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.
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 is a
"qualified institutional buyer" (as such term is defined in Rule
144A(a)(1) under the Securities Act), 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, 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 the State of Iowa 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
such jurisdiction.
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 (and
in any event within 45 days of 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 (provided that if the interests of all of the holders
of the Notes are substantially identical, the Company shall be
obligated to pay the reasonable attorneys' fees of a special counsel
and, if reasonably required, local or other counsel, representing all
of the holders of the Notes) in connection with such transactions and
in connection with any amendments, waivers or consents under or in
respect of this Agreement or the Notes (whether or not such amendment,
waiver or consent becomes effective), including, without limitation:
(a) the 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 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.
This Agreement and the Notes may be amended, and the observance of any
term hereof or of the Notes may be waived (either retroactively or
prospectively), with (and only with) the written consent of the
Company and the Required Holders, except that (a) no amendment or
waiver of any of the provisions of Section 1, 2, 3, 4, 5, 6 or 21
hereof, or any defined term (as it is used therein), will be effective
as to you unless consented to by you in writing, and (b) no such
amendment or waiver may, without the written consent of the holder of
each Note at the time outstanding affected thereby, (i) subject to the
provisions of Section 12 relating to acceleration or rescission,
change the amount or time of any prepayment or payment of principal
of, or reduce the rate or change the time of payment or method of
computation of interest or of the Make-Whole Amount on, the Notes,
(ii) change the percentage of the principal amount of the Notes the
holders of which are required to consent to any such amendment or
waiver, or (iii) amend any of Sections 8, 11(a), 11(b), 12, 17 or 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 unless such
remuneration is concurrently paid, or security is concurrently
granted, on the same terms, ratably to each holder of Notes then
outstanding even if such holder did not consent to such waiver or
amendment.
17.3. Binding Effect, etc.
Any amendment or waiver consented to as provided in this Section 17
applies equally to all holders of Notes and is binding upon them and
upon each future holder of any Note and upon the Company without
regard to whether such Note has been marked to indicate such amendment
or waiver. No such amendment or waiver will extend to or affect any
obligation, covenant, agreement, Default or Event of Default not
expressly amended or waived or impair any right consequent thereon. No
course of dealing between the Company and the holder of any Note nor
any delay in exercising any rights hereunder or under any Note shall
operate as a waiver of any rights of any holder of such Note.
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, to the Company at its address set forth at the
beginning hereof to the attention of the Company's treasurer, or at
such other address as the Company shall have specified to the holder
of each Note in writing.
Notices under this Section 18 will be deemed given only when actually
received.
19. REPRODUCTION OF DOCUMENTS
This Agreement and all documents relating thereto, including, without
limitation, (a) consents, waivers and modifications that may hereafter be
executed, (b) documents received by 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 procedures 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, employees, agents, attorneys and
affiliates, (to the extent such disclosure reasonably relates to the
administration of the investment represented by your Notes);
(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;
(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; or
(viii) any other Person to which such delivery or disclosure may be
necessary or appropriate
(e) to effect compliance with any law, rule, regulation or order
applicable to you,
(f) in response to any subpoena or other legal process,
(g) in connection with any litigation to which you are a party, or
(h) 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 .
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.
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 NEW YORK EXCLUDING CHOICE-OF-LAW PRINCIPLES OF THE LAW OF SUCH
STATE THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF A JURISDICTION
OTHER THAN SUCH STATE.
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,
XXX ENTERPRISES, INCORPORATED
By /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President-Finance
and Chief Accounting Officer
The foregoing is hereby agreed to as of the date thereof.
[Separately executed by each
of the following Purchasers]
THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY
By /s/ Xxxxxx X. Xxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Authorized Representative
PRINCIPAL MUTUAL LIFE INSURANCE COMPANY
By /s/ Xxxx X. Xxxxxx
-------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Counsel
By /s/ Xxxxx Xxxxx
-------------------------------------------
Name: Xxxxx Xxxxx
Title: Counsel
JEFFERSON-PILOT LIFE INSURANCE COMPANY
By /s/ Xxxxxx X. Xxxxxxx, XX
-------------------------------------------
Name: Xxxxxx X. Xxxxxxx, XX
Title: Second Vice President
XXXXXXXXX XXXXXXXX LIFE INSURANCE
COMPANY OF AMERICA
By /s/ Xxxx X. Xxxxxx
-------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
HARTFORD LIFE INSURANCE COMPANY
By: Hartford Investment Services, Inc.,
its Agents and Attorneys-in-Fact
By /s/ Xxxxx Xxxxxxx
--------------------------------------------
Name: Xxxxx Xxxxxxx
Title: Senior Vice President
HARTFORD LIFE AND ACCIDENT INSURANCE COMPANY
By: Hartford Investment Services, Inc.,
its Agents and Attorneys-in-Fact
By /s/ Xxxxx Xxxxxxx
-------------------------------------------
Name: Xxxxx Xxxxxxx
Title: Senior Vice President
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By /s/ Xxxx Xxx XxXxxxxx
-------------------------------------------
Name: Xxxx Xxx XxXxxxxx
Title: Managing Director
NATIONWIDE LIFE INSURANCE COMPANY
By /s/ Xxxxx X. XxXxxxxxxx, Xx.
--------------------------------------------
Name: Xxxxx X. XxXxxxxxxx, Xx.
Title: Vice President
Fixed-Income Securities
STATE FARM LIFE INSURANCE COMPANY
By /s/ Xxxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President - Municipal Securities
By /s/ Xxxxx Xxxxxx
------------------------------------------
Name: Xxxxx Xxxxxx
Title: Investment Officer
AID ASSOCIATION FOR LUTHERANS
By /s/ Xxxxxxxx Xxxxxxx
------------------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Director of Securities
MUTUAL OF OMAHA INSURANCE COMPANY
By /s/ Xxxxx X. Xxxxxxxx Xx.
------------------------------------------
Name: Xxxxx X. Xxxxxxxx Xx.
Title: First Vice President
MODERN WOODMEN OF AMERICA
By /s/ C. Xxxxxx Xxxxx
------------------------------------------
Name: X. X. Xxxxx
Title: General Counsel
LUTHERAN BROTHERHOOD
By /s/ Xxxx X. Xxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Assistant Vice President
AMERITAS LIFE INSURANCE CORP.
by Ameritas Investment Advisors, Inc. as Agent
By /s/ Xxxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President - Fixed Income Securities
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
Purchaser Name THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY
===================================== ===========================================================================
Name in Which Note is Registered THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY
===================================== ===========================================================================
Note Registration Number; Principal DR-1; $40,000,000
Amount
===================================== ===========================================================================
Payment on Account of Note
Method Federal Funds Wire Transfer
Account Information Bankers Trust Company
00 Xxxx Xxxxxx
Insurance Xxxx - 0xx Xxxxx
Xxx Xxxx, XX 00000
ABA# 000-000-000
For the account of:
The Northwestern Mutual Life Insurance Company
Account No. 00-000-000
===================================== ===========================================================================
Accompanying Information Name of Company: Xxx Enterprises, Incorporated
Description of
Security: 6.64% Series D Senior Notes due March 31, 2013
Security Number: 523768 D# 3
Due Date and Application (as
among principal, premium and
interest) of the payment being
made:
===================================== ===========================================================================
Address for Notices Related to The Northwestern Mutual Life Insurance Company
Payments 000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Investment Operations
===================================== ===========================================================================
Address for All other Notices The Northwestern Mutual Life Insurance Company
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Securities Department
===================================== ===========================================================================
Other Instructions THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY
By_______________________
Name:
Title:
===================================== ===========================================================================
Instructions re Delivery of Notes The Northwestern Mutual Life Insurance Company
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxx
===================================== ===========================================================================
Tax Identification Number 00-0000000
===================================== ===========================================================================
===================================== ===========================================================================
Purchaser Name PRINCIPAL MUTUAL LIFE INSURANCE COMPANY
===================================== ===========================================================================
Name in Which Note is Registered PRINCIPAL MUTUAL LIFE INSURANCE COMPANY
===================================== ===========================================================================
Note Registration Number; Principal BR-1; $20,600,000
Amount BR-2; $1,400,000
BR-3; $500,000
BR-4; $500,000
===================================== ============================================================================
Payment on Account of Note
Method Federal Funds Wire Transfer
Account Information Norwest Bank Iowa, N.A.
0xx & Xxxxxx Xxxxxxx
Xxx Xxxxxx, XX 00000
ABA No.: 073 000 228
For credit to Principal Mutual Life Insurance Company
Account No. 014752
OBI Reference: PFGSE (S) B0061390()
===================================== ===========================================================================
Accompanying Information Name of Company: Xxx Enterprises, Incorporated
Description of
Security: 6.23% Series B Senior Notes due March 31, 2004
Security Number: 523768 D* 7
Due Date and Application (as
among principal, premium and
interest) of the payment being
made:
===================================== ===========================================================================
Address for Notices Related to Principal Mutual Life Insurance Company
Payments 000 Xxxx Xxxxxx
Xxx Xxxxxx, XX 00000-0000
Attn: Investment Accounting - Securities
===================================== ===========================================================================
Address for All other Notices Principal Mutual Life Insurance Company
000 Xxxx Xxxxxx
Xxx Xxxxxx, XX 00000-0000
Attn: Investment Department-Securities Division
===================================== ===========================================================================
Other Instructions PRINCIPAL MUTUAL LIFE INSURANCE COMPANY
By_______________________
Name:
Title:
By_______________________
Name:
Title:
===================================== ===========================================================================
Instructions re Delivery of Notes Law Department of Purchaser
===================================== ===========================================================================
Tax Identification Number 00-0000000
===================================== ===========================================================================
===================================== ===========================================================================
Purchaser Name PRINCIPAL MUTUAL LIFE INSURANCE COMPANY
===================================== ===========================================================================
Name in Which Note is Registered PRINCIPAL MUTUAL LIFE INSURANCE COMPANY
===================================== ===========================================================================
Note Registration Number; Principal BR-5; $2,000,000
Amount
===================================== ===========================================================================
Payment on Account of Note
Method Federal Funds Wire Transfer
Account Information Norwest Bank Iowa, N.A.
0xx & Xxxxxx Xxxxxxx
Xxx Xxxxxx, XX 00000
ABA No.: 073 000 228
For credit to Principal Mutual Life Insurance Company
Separate Account No. 032395
OBI Reference: PFGSE (S) B0061390()
===================================== ===========================================================================
Accompanying Information Name of Company: Xxx Enterprises, Incorporated
Description of
Security: 6.23% Series B Senior Notes due March 31, 2004
Security Number: 523768 D* 7
Due Date and Application (as
among principal, premium and
interest) of the payment being
made:
===================================== ===========================================================================
Address for Notices Related to Principal Mutual Life Insurance Company
Payments 000 Xxxx Xxxxxx
Xxx Xxxxxx, XX 00000-0000
Attn: Investment Accounting - Securities
===================================== ===========================================================================
Address for All other Notices Principal Mutual Life Insurance Company
000 Xxxx Xxxxxx
Xxx Xxxxxx, XX 00000-0000
Attn: Investment Department-Securities Division
===================================== ===========================================================================
Other Instructions PRINCIPAL MUTUAL LIFE INSURANCE COMPANY
By_______________________
Name:
Title:
By_______________________
Name:
Title:
===================================== ===========================================================================
Instructions re Delivery of Notes Law Department of Purchaser
===================================== ===========================================================================
Tax Identification Number 00-0000000
===================================== ===========================================================================
===================================== ===========================================================================
Purchaser Name JEFFERSON-PILOT LIFE INSURANCE COMPANY
===================================== ===========================================================================
Name in Which Note is Registered JEFFERSON-PILOT LIFE INSURANCE COMPANY
===================================== ===========================================================================
Note Registration Number; Principal CR-1; $15,000,000
Amount
===================================== ===========================================================================
Payment on Account of Note
Method Federal Funds Wire Transfer
Account Information Jefferson-Pilot Life Insurance Company
x/x Xxx Xxxx xx Xxx Xxxx
XXX #021 000 018 BNF: IOC566
Attention: P & I Department
Ref: "See Accompanying Information" below.
===================================== ===========================================================================
Accompanying Information Name of Company: Xxx Enterprises, Incorporated
Description of
Security: 6.47% Series C Senior Notes due March 31, 2010
Security Number: 523768 D@ 5
Due Date and Application (as
among principal, premium and
interest) of the payment being
made:
===================================== ===========================================================================
Address for Notices Related to Jefferson-Pilot Life Insurance Company
Payments x/x Xxx Xxxx xx Xxx Xxxx
Xxxxxxxxx: P & I Department
X.X. Xxx 00000
Xxxxxx, Xxx Xxxxxx 00000
With a copy to:
Jefferson-Pilot Life Insurance Company
X.X. Xxx 00000
Xxxxxxxxxx, X.X. 00000
Attn: Securities Administration - 3630
Fax: 910/000-0000 (thru 5/31/98)
Fax: 336/000-0000 (after 6/1/98)
===================================== ===========================================================================
Address for All other Notices Jefferson-Pilot Life Insurance Company
X.X. Xxx 00000
Xxxxxxxxxx, X.X. 00000
Attn: Securities Administration - 3630
Fax: 910/000-0000 (thru 5/31/98)
Fax: 336/000-0000 (after 6/1/98)
(For hand delivery: 000 Xxxxx Xxxxxx Xxxxxx,
Xxx Code 27401)
===================================== ===========================================================================
Other Instructions JEFFERSON-PILOT LIFE INSURANCE COMPANY
By_______________________
Name:
Title:
===================================== ===========================================================================
Instructions re Delivery of Notes Bank of New York
One Wall Street
3rd Floor, Window A
For Jefferson-Pilot Life Acct. 186100
Xxx Xxxx, Xxx Xxxx 00000
With a copy to:
Jefferson-Pilot Life Insurance Company
X.X. Xxx 00000
Xxxxxxxxxx, X.X. 00000
Attn: Securities Administration - 3630
===================================== ===========================================================================
Tax Identification Number 00-0000000
===================================== ===========================================================================
===================================== ===========================================================================
Purchaser Name XXXXXXXXX XXXXXXXX LIFE INSURANCE COMPANY OF AMERICA
===================================== ===========================================================================
Name in Which Note is Registered XXXXXXXXX XXXXXXXX LIFE INSURANCE COMPANY OF AMERICA
===================================== ===========================================================================
Note Registration Number; Principal CR-2; $10,000,000
Amount
===================================== ===========================================================================
Payment on Account of Note
Method Federal Funds Wire Transfer
Account Information Xxxxxxxxx Xxxxxxxx Life Insurance Company of America
x/x Xxx Xxxx xx Xxx Xxxx
XXX #021 000 018 BNF: IOC566
Attention: P & I Department
Ref: "See Accompanying Information" below.
===================================== ===========================================================================
Accompanying Information Name of Company: Xxx Enterprises, Incorporated
Description of
Security: 6.47% Series C Senior Notes due March 31, 2010
Security Number: 523768 D@ 5
Due Date and Application (as
among principal, premium and
interest) of the payment being
made:
===================================== ===========================================================================
Address for Notices Related to Xxxxxxxxx Xxxxxxxx Life Insurance Company of America
Payments x/x Xxx Xxxx xx Xxx Xxxx
Attention: P & I Department
X.X. Xxx 00000
Xxxxxx, Xxx Xxxxxx 00000
With a copy to:
Xxxxxxxxx Xxxxxxxx Life Insurance Company of America
X.X. Xxx 00000
Xxxxxxxxxx, X.X. 00000
Attn: Securities Administration - 3630
Fax: 910/000-0000 (thru 5/31/98)
Fax: 336/000-0000 (after 6/1/98)
===================================== ===========================================================================
Address for All other Notices Xxxxxxxxx Xxxxxxxx Life Insurance Company of America
X.X. Xxx 00000
Xxxxxxxxxx, X.X. 00000
Attn: Securities Administration - 3630
Fax: 910/000-0000 (thru 5/31/98)
Fax: 336/000-0000 (after 6/1/98)
===================================== ===========================================================================
Other Instructions XXXXXXXXX XXXXXXXX LIFE INSURANCE COMPANY OF AMERICA
By_______________________
Name:
Title:
===================================== ===========================================================================
Instructions re Delivery of Notes Bank of New York
One Wall Street
3rd Floor, Window A
For Xxxxxxxxx Xxxxxxxx Life Acct. 186101
Xxx Xxxx, Xxx Xxxx 00000
With a copy to:
Xxxxxxxxx Xxxxxxxx Life Insurance Company of America
X.X. Xxx 00000
Xxxxxxxxxx, X.X. 00000
Attn: Securities Administration - 3630
===================================== ===========================================================================
Tax Identification Number 00-0000000
===================================== ===========================================================================
===================================== ===========================================================================
Purchaser Name HARTFORD LIFE INSURANCE COMPANY
===================================== ===========================================================================
Name in Which Note is Registered HARTFORD LIFE INSURANCE COMPANY
===================================== ===========================================================================
Note Registration Number; Principal AR-1; $10,000,000
Amount
===================================== ===========================================================================
Payment on Account of Note
Method Federal Funds Wire Transfer
Account Information Chase Manhattan Bank
0 Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
ABA No. 000000000
Chase NYC/Cust
A/C# 000-0-000000 for F/C/T G 06641 - CRC
Re: See "Accompanying Information" below.
===================================== ===========================================================================
Accompanying Information Name of Company: Xxx Enterprises, Incorporated
Description of
Security: 6.14% Series A Senior Notes due March 31, 2005
Security Number: 523768 C@ 6
Due Date and Application (as
among principal, premium and
interest) of the payment being
made:
===================================== ===========================================================================
Address for Notices Related to Hartford Investment Management Company
Payments x/x Xxxxxxxxx Xxxxxxx
X.X. Xxx 0000
Xxxxxxxx, XX 00000-0000
Telefacsimile: (000) 000-0000
===================================== ===========================================================================
Address for All other Notices Hartford Investment Management Company
c/o Investment Department - Private Placements
X.X. Xxx 0000
Xxxxxxxx, XX 00000-0000
Telefacsimile: (000) 000-0000
===================================== ===========================================================================
Other Instructions HARTFORD LIFE INSURANCE COMPANY
By: Hartford Investment Services, Inc.,
its Agents and Attorneys-in-Fact
---------------------------
Name: Xxxxx Xxxxxxx
Title: Senior Vice President
===================================== ===========================================================================
Instructions re Delivery of Notes Chase Manhattan Bank
North America Insurance
3 Chase MetroTech Center - 6th floor
Xxxxxxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxxx
Custody Account Number G06641
Account Name - Hartford Life Ins Co.-CRC
===================================== ===========================================================================
Tax Identification Number 00-0000000
===================================== ===========================================================================
===================================== ===========================================================================
Purchaser Name HARTFORD LIFE AND ACCIDENT INSURANCE COMPANY
===================================== ===========================================================================
Name in Which Note is Registered HARTFORD LIFE AND ACCIDENT INSURANCE COMPANY
===================================== ===========================================================================
Note Registration Number; Principal AR-2; $5,000,000
Amount
===================================== ===========================================================================
Payment on Account of Note
Method Federal Funds Wire Transfer
Account Information Chase Manhattan Bank
0 Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
ABA No. 000000000
Chase NYC/Cust
A/C# 000-0-000000 for F/C/T G 06956 - EBD
Re: See "Accompanying Information" below.
===================================== ===========================================================================
Accompanying Information Name of Company: Xxx Enterprises, Incorporated
Description of
Security: 6.14% Series A Senior Notes due March 31, 2005
Security Number: 523768 C@ 6
Due Date and Application (as
among principal, premium and
interest) of the payment being
made:
===================================== ===========================================================================
Address for Notices Related to Hartford Investment Management Company
Payments x/x Xxxxxxxxx Xxxxxxx
X.X. Xxx 0000
Xxxxxxxx, XX 00000-0000
Telefacsimile: (000) 000-0000
===================================== ===========================================================================
Address for All other Notices Hartford Investment Management Company
c/o Investment Department - Private Placements
X.X. Xxx 0000
Xxxxxxxx, XX 00000-0000
Telefacsimile: (000) 000-0000
===================================== ===========================================================================
Other Instructions HARTFORD LIFE AND ACCIDENT INSURANCE COMPANY
By: Hartford Investment Services, Inc.,
its Agents and Attorneys-in-Fact
---------------------------
Name: Xxxxx Xxxxxxx
Title: Senior Vice President
===================================== ===========================================================================
Instructions re Delivery of Notes Chase Manhattan Bank
North America Insurance
3 Chase MetroTech Center - 6th floor
Xxxxxxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxxx
Custody Account Number G06956
Account Name - Hartford Life and Accident-EBD
===================================== ===========================================================================
Tax Identification Number 00-0000000
===================================== ===========================================================================
===================================== ===========================================================================
Purchaser Name HARTFORD LIFE INSURANCE COMPANY
===================================== ===========================================================================
Name in Which Note is Registered HARTFORD LIFE INSURANCE COMPANY
===================================== ===========================================================================
Note Registration Number; Principal AR-3; $5,000,000
Amount
===================================== ===========================================================================
Payment on Account of Note
Method Federal Funds Wire Transfer
Account Information Chase Manhattan Bank
0 Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
ABA No. 000000000
Chase NYC/Cust
A/C# 000-0-000000 for F/C/T G 06612 - HVA
Re: See "Accompanying Information" below.
===================================== ===========================================================================
Accompanying Information Name of Company: Xxx Enterprises, Incorporated
Description of
Security: 6.14% Series A Senior Notes due March 31, 2005
Security Number: 523768 C@ 6
Due Date and Application (as
among principal, premium and
interest) of the payment being
made:
===================================== ===========================================================================
Address for Notices Related to Hartford Investment Management Company
Payments x/x Xxxxxxxxx Xxxxxxx
X.X. Xxx 0000
Xxxxxxxx, XX 00000-0000
Telefacsimile: (000) 000-0000
===================================== ===========================================================================
Address for All other Notices Hartford Investment Management Company
c/o Investment Department - Private Placements
X.X. Xxx 0000
Xxxxxxxx, XX 00000-0000
Telefacsimile: (000) 000-0000
===================================== ===========================================================================
Other Instructions HARTFORD LIFE INSURANCE COMPANY
By: Hartford Investment Services, Inc.,
its Agents and Attorneys-in-Fact
---------------------------
Name: Xxxxx Xxxxxxx
Title: Senior Vice President
===================================== ===========================================================================
Instructions re Delivery of Notes Chase Manhattan Bank
North America Insurance
3 Chase MetroTech Center - 6th floor
Xxxxxxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxxx
Custody Account Number G06612
Account Name - Hartford Life Ins Co.-HVA
===================================== ===========================================================================
Tax Identification Number 00-0000000
===================================== ===========================================================================
===================================== ===========================================================================
Purchaser Name MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
===================================== ===========================================================================
Name in Which Note is Registered MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
===================================== ===========================================================================
Note Registration Number; Principal CR-3; $4,500,000
Amount
===================================== ===========================================================================
Payment on Account of Note
Method Federal Funds Wire Transfer
Account Information Chase Manhattan Bank, N.A.
0 Xxxxx XxxxxXxxx Xxxxxx
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:
Securities Custody and Collection Department
of Massachusetts Mutual Life Insurance Company at (000) 000-0000
===================================== ===========================================================================
Accompanying Information Name of Company: Xxx Enterprises, Incorporated
Description of
Security: 6.47% Series C Senior Notes due March 31, 2010
Security Number: 523768 D@ 5
Due Date and Application (as
among principal, premium and
interest) of the payment being
made:
===================================== ===========================================================================
Address for Notices Related to Massachusetts Mutual Life Insurance Company
Payments 0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attn: Securities Custody and
Collection Department
F 381
===================================== ===========================================================================
Address for All other Notices Massachusetts Mutual Life Insurance Company
0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attn: Securities Investment Division
===================================== ===========================================================================
Other Instructions MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By_______________________
Name:
Title:
===================================== ===========================================================================
Instructions re Delivery of Notes Law Department of Purchaser
===================================== ===========================================================================
Tax Identification Number 00-0000000
===================================== ===========================================================================
===================================== ===========================================================================
Purchaser Name MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
===================================== ===========================================================================
Name in Which Note is Registered MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
===================================== ===========================================================================
Note Registration Number; Principal CR-4; $10,500,000
Amount
===================================== ===========================================================================
Payment on Account of Note
Method Federal Funds Wire Transfer
Account Information Citibank, N.A.
000 Xxxx Xxxxxx
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:
Securities Custody and Collection Department
of Massachusetts Mutual Life Insurance Company at (000) 000-0000
===================================== ===========================================================================
Accompanying Information Name of Company: Xxx Enterprises, Incorporated
Description of
Security: 6.47% Series C Senior Notes due March 31, 2010
Security Number: 523768 D@ 5
Due Date and Application (as
among principal, premium and
interest) of the payment being
made:
===================================== ===========================================================================
Address for Notices Related to Massachusetts Mutual Life Insurance Company
Payments 0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attn: Securities Custody and
Collection Department
F 381
===================================== ===========================================================================
Address for All other Notices Massachusetts Mutual Life Insurance Company
0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attn: Securities Investment Division
===================================== ===========================================================================
Other Instructions MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By_______________________
Name:
Title:
===================================== ===========================================================================
Instructions re Delivery of Notes Law Department of Purchaser
===================================== ===========================================================================
Tax Identification Number 00-0000000
===================================== ===========================================================================
===================================== ===========================================================================
Purchaser Name NATIONWIDE LIFE INSURANCE COMPANY
===================================== ===========================================================================
Name in Which Note is Registered NATIONWIDE LIFE INSURANCE COMPANY
===================================== ===========================================================================
Note Registration Number; Principal AR-4; $13,000,000
Amount
===================================== ===========================================================================
Payment on Account of Note
Method Federal Funds Wire Transfer
Account Information The Bank of New York
ABA # 000-000-000
BNF: IOC566
F/A/O Nationwide Life Insurance Company
Attn: P&I Department
Ref: See "Accompanying Information" below.
===================================== ===========================================================================
Accompanying Information Name of Company: Xxx Enterprises, Incorporated
Description of
Security: 6.14% Series A Senior Notes due March 31, 2005
Security Number: 523768 C@ 6
Due Date and Application (as
among principal, premium and
interest) of the payment being
made:
===================================== ===========================================================================
Address for Notices Related to Nationwide Life Insurance Company
Payments x/x Xxx Xxxx xx Xxx Xxxx
X.X. Xxx 00000
Attn: P&I Department
Xxxxxx, XX 00000
With a copy to:
Nationwide Life Insurance Company
Attn: Investment Accounting
Xxx Xxxxxxxxxx Xxxxx (0-00-00)
Xxxxxxxx, Xxxx 00000-0000
===================================== ===========================================================================
Address for All other Notices Nationwide Life Insurance Company
Xxx Xxxxxxxxxx Xxxxx (0-00-00)
Xxxxxxxx, Xxxx 00000-0000
Attn: Corporate Fixed-Income Securities
===================================== ===========================================================================
Other Instructions NATIONWIDE LIFE INSURANCE COMPANY
By_______________________
Name:
Title:
===================================== ===========================================================================
Instructions re Delivery of Notes The Bank of New York
One Wall Street
3rd Floor - Window A
Xxx Xxxx, XX 00000
F/A/O Nationwide Life Insurance Co. Acct #267829
===================================== ===========================================================================
Tax Identification Number 00-0000000
===================================== ===========================================================================
===================================== ===========================================================================
Purchaser Name STATE FARM LIFE INSURANCE COMPANY
===================================== ===========================================================================
Name in Which Note is Registered STATE FARM LIFE INSURANCE COMPANY
===================================== ===========================================================================
Note Registration Number; Principal CR-5; $10,000,000
Amount
===================================== ===========================================================================
Payment on Account of Note
Method Federal Funds Wire Transfer
Account Information The Chase Manhattan Bank
ABA No. 000000000
SSG Private Income Processing
A/C #000-0-000000
For Credit To Account Number G06893
Ref: See "Accompanying Information" below.
===================================== ===========================================================================
Accompanying Information Name of Company: Xxx Enterprises, Incorporated
Description of
Security: 6.47% Series C Senior Notes due March 31, 2010
Security Number: 523768 D@ 5
Due Date and Application (as
among principal, premium and
interest) of the payment being
made:
===================================== ===========================================================================
Address for Notices Related to State Farm Life Insurance Company
Payments Investment Accounting Dept. X-0
Xxx Xxxxx Xxxx Xxxxx
Xxxxxxxxxxx, XX 00000
===================================== ===========================================================================
Address for All other Notices State Farm Life Insurance Company
Investment Dept. E-10
Xxx Xxxxx Xxxx Xxxxx
Xxxxxxxxxxx, XX 00000
===================================== ===========================================================================
Other Instructions STATE FARM LIFE INSURANCE COMPANY
By_______________________
Name:
Title:
By_______________________
Name:
Title:
===================================== ===========================================================================
Instructions re Delivery of Notes Chase Manhattan Bank
Attn: Xxxxxxx Xxxxx
(North America Insurance)
0 Xxxxx Xxxxxxxxx Xxxxxx-0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
With copies to:
State Farm Insurance Companies
Xxx Xxxxx Xxxx Xxxxx X-0
Xxxxxxxxxxx, Xxxxxxxx 00000
Attn: Investment Legal E-8
Xxxxx Xxxxxxxx, Investment Counsel
and
State Farm Life Insurance Company
Investment Dept. E-10
Xxx Xxxxx Xxxx Xxxxx
Xxxxxxxxxxx, XX 00000
===================================== ===========================================================================
Tax Identification Number 00-0000000
===================================== ===========================================================================
===================================== ===========================================================================
Purchaser Name AID ASSOCIATION FOR LUTHERANS
===================================== ===========================================================================
Name in Which Note is Registered XXXXX & CO
===================================== ===========================================================================
Note Registration Number; Principal AR-5; $12,000,000
Amount
===================================== ===========================================================================
Payment on Account of Note
Method Federal Funds Wire Transfer
Account Information CITIBANK, N.A.
ABA # 000-000-000
DDA # 36126473
Attn: Xxxx Rock
Ref Account # 846647
Aid Association for Lutherans Custody Account
Ref: See "Accompanying Information" below.
===================================== ===========================================================================
Accompanying Information Name of Company: Xxx Enterprises, Incorporated
Description of
Security: 6.14% Series A Senior Notes due March 31, 2005
Security Number: 523768 C@ 6
Due Date and Application (as
among principal, premium and
interest) of the payment being
made:
===================================== ===========================================================================
Address for Notices Related to Investment Department
Payments Aid Association for Lutherans
0000 X. Xxxxxxx Xx.
Xxxxxxxx, XX 00000
With a copy to:
Income Collection and Disbursement
Ref Account # 846647
Aid Association for Lutherans Custody Account
Citicorp Services Inc.
0000 X. Xxxxxxxxx Xxxx.
0xx Xxxxx
Xxxxx, XX 00000
===================================== ===========================================================================
Address for All other Notices Investment Department
Aid Association for Lutherans
0000 X. Xxxxxxx Xx.
Xxxxxxxx, XX 00000
===================================== ===========================================================================
Other Instructions AID ASSOCIATION FOR LUTHERANS
By_______________________
Name:
Title:
===================================== ===========================================================================
Instructions re Delivery of Notes Xxxxx Xxxxx
Ref Account # 846647
Aid Association for Lutherans Custody Account
Citibank
Xxxxx X
00 Xxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
===================================== ===========================================================================
Tax Identification Number 00-0000000
===================================== ===========================================================================
===================================== ===========================================================================
Purchaser Name MUTUAL OF OMAHA INSURANCE COMPANY
===================================== ===========================================================================
Name in Which Note is Registered MUTUAL OF OMAHA INSURANCE COMPANY
===================================== ===========================================================================
Note Registration Number; Principal AR-6; $8,000,000
Amount
===================================== ===========================================================================
Payment on Account of Note
Method Federal Funds Wire Transfer
Account Information Chase Manhattan Bank
ABA No.: 000000000
Private Income Processing
For credit to:
Mutual of Omaha Insurance Company
Account #900-0000000
a/c: G07096
===================================== ===========================================================================
Accompanying Information Name of Company: Xxx Enterprises, Incorporated
Description of
Security: 6.14% Series A Senior Notes due March 31, 2005
Security Number: 523768 C@ 6
Due Date and Application (as
among principal, premium and
interest) of the payment being
made:
===================================== ===========================================================================
Address for Notices Related to The Chase Manhattan Bank
Payments 0 Xxx Xxxx Xxxxx - 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Income Processing - J. Pipperato
a/c: G07096
===================================== ===========================================================================
Address for All other Notices 4 - Investment Loan Administration
Mutual of Omaha Insurance Company
Mutual of Xxxxx Xxxxx
Xxxxx, XX 00000-0000
===================================== ===========================================================================
Other Instructions MUTUAL OF OMAHA INSURANCE COMPANY
By_______________________
Name:
Title:
===================================== ===========================================================================
Instructions re Delivery of Notes The Chase Manhattan Bank
North America Insurance - 6th Floor
Attn: Xxx Xxxxx Xxxxx
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
===================================== ===========================================================================
Tax Identification Number 00-0000000
===================================== ===========================================================================
===================================== ===========================================================================
Purchaser Name MODERN WOODMEN OF AMERICA
===================================== ===========================================================================
Name in Which Note is Registered MODERN WOODMEN OF AMERICA
===================================== ===========================================================================
Note Registration Number; Principal CR-6; $7,000,000
Amount
===================================== ===========================================================================
Payment on Account of Note
Method Federal Funds Wire Transfer
Account Information The Northern Trust Company
00 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
ABA No. 000-000-000
Account Name: Modern Woodmen of America
Account No. 84352
===================================== ===========================================================================
Accompanying Information Name of Company: Xxx Enterprises, Incorporated
Description of
Security: 6.47% Series C Senior Notes due March 31, 2010
Security Number: 523768 D@ 5
Due Date and Application (as
among principal, premium and
interest) of the payment being
made:
===================================== ===========================================================================
Address for Notices Related to Modern Woodmen of America
Payments Attn: Investment Accounting Department
0000 Xxxxx Xxxxxx
Xxxx Xxxxxx, XX 00000
===================================== ===========================================================================
Address for All other Notices Modern Woodmen of America
Attn: Investment Department
0000 Xxxxx Xxxxxx
Xxxx Xxxxxx, XX 00000
===================================== ===========================================================================
Other Instructions MODERN WOODMEN OF AMERICA
By_______________________
Name:
Title:
===================================== ===========================================================================
Instructions re Delivery of Notes Law Department of Purchaser
===================================== ===========================================================================
Tax Identification Number 00-0000000
===================================== ===========================================================================
===================================== ===========================================================================
Purchaser Name LUTHERAN BROTHERHOOD
===================================== ===========================================================================
Name in Which Note is Registered LUTHERAN BROTHERHOOD
===================================== ===========================================================================
Note Registration Number; Principal AR-7; $2,500,000
Amount
===================================== ===========================================================================
Payment on Account of Note
Method Federal Funds Wire Transfer
Account Information Norwest Bank Minnesota, N.A.
ABA #000000000
For Credit to Trust Clearing Account #00-00-000
Attn: Xxxxx Xxxxxxxx
For Credit to: Lutheran Brotherhood
Acct. No.: 12651300
Ref: See "Accompanying Information" below.
===================================== ===========================================================================
Accompanying Information Name of Company: Xxx Enterprises, Incorporated
Description of
Security: 6.14% Series A Senior Notes due March 31, 2005
Security Number: 523768 C@ 6
Due Date and Application (as
among principal, premium and
interest) of the payment being
made:
===================================== ===========================================================================
Address for Notices Related to Lutheran Brotherhood
Payments Attn: Investment Accounting/Trading Administrator
000 Xxxxxx Xxxxxx Xxxxx
00xx Xxxxx
Xxxxxxxxxxx, XX 00000
===================================== ===========================================================================
Address for All other Notices Lutheran Brotherhood
Attn: Investment Division
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
===================================== ===========================================================================
Other Instructions LUTHERAN BROTHERHOOD
By_______________________
Name:
Title:
===================================== ===========================================================================
Instructions re Delivery of Notes Norwest Bank Minnesota, N.A.
000 Xxxxxxxxx Xxxxxx
Attn: Client Services - Xxxxx Xxxxxxxx
5th Floor, Window 0
Xxxxxxxxx Xxxxxxxx
Xxxxxxxxxxx, XX 00000-0000
With a copy to:
Xxxxxxx Xxxxx, Esq.
Lutheran Brotherhood
000 Xxxxxx Xxxxxx Xxxxx
Xxxx Xxxxxxxxxx Division
Xxxxxxxxxxx, XX 00000
===================================== ===========================================================================
Tax Identification Number 00-0000000
===================================== ===========================================================================
===================================== ===========================================================================
Purchaser Name LUTHERAN BROTHERHOOD
===================================== ===========================================================================
Name in Which Note is Registered LUTHERAN BROTHERHOOD
===================================== ===========================================================================
Note Registration Number; Principal CR-7; $5,000,000
Amount
===================================== ===========================================================================
Payment on Account of Note
Method Federal Funds Wire Transfer
Account Information Norwest Bank Minnesota, N.A.
ABA #000000000
For Credit to Trust Clearing Account #00-00-000
Attn: Xxxxx Xxxxxxxx
For Credit to: Lutheran Brotherhood
Acct. No.: 12651300
Ref: See "Accompanying Information" below.
===================================== ===========================================================================
Accompanying Information Name of Company: Xxx Enterprises, Incorporated
Description of
Security: 6.47% Series C Senior Notes due March 31, 2010
Security Number: 523768 D@ 5
Due Date and Application (as
among principal, premium and
interest) of the payment being
made:
===================================== ===========================================================================
Address for Notices Related to Lutheran Brotherhood
Payments Attn: Investment Accounting/Trading Administrator
000 Xxxxxx Xxxxxx Xxxxx
00xx Xxxxx
Xxxxxxxxxxx, XX 00000
===================================== ===========================================================================
Address for All other Notices Lutheran Brotherhood
Attn: Investment Division
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
===================================== ===========================================================================
Other Instructions LUTHERAN BROTHERHOOD
By_______________________
Name:
Title:
===================================== ===========================================================================
Instructions re Delivery of Notes Norwest Bank Minnesota, N.A.
000 Xxxxxxxxx Xxxxxx
Attn: Client Services - Xxxxx Xxxxxxxx
5th Floor, Window 0
Xxxxxxxxx Xxxxxxxx
Xxxxxxxxxxx, XX 00000-0000
With a copy to:
Xxxxxxx Xxxxx, Esq.
Lutheran Brotherhood
000 Xxxxxx Xxxxxx Xxxxx
Xxxx Xxxxxxxxxx Division
Xxxxxxxxxxx, XX 00000
===================================== ===========================================================================
Tax Identification Number 00-0000000
===================================== ===========================================================================
===================================== ===========================================================================
Purchaser Name AMERITAS LIFE INSURANCE CORP.
===================================== ===========================================================================
Name in Which Note is Registered AMERITAS LIFE INSURANCE CORP.
===================================== ===========================================================================
Note Registration Number; Principal AR-8; $2,500,000
Amount
===================================== ===========================================================================
Payment on Account of Note
Method Federal Funds Wire Transfer
Account Information First Bank Nebraska, NA
ABA# 000-000-000
Ameritas Life Insurance Corp
Acct.# 1-494-0070-0188
Re: See "Accompanying Information " below.
===================================== ===========================================================================
Accompanying Information Name of Company: Xxx Enterprises, Incorporated
Description of
Security: 6.14% Series A Senior Notes due March 31, 2005
Security Number: 523768 C@ 6
Due Date and Application (as
among principal, premium and
interest) of the payment being
made:
===================================== ===========================================================================
Address for Notices Related to Ameritas Life Insurance Corp
Payments 0000 "X" Xxxxxx
Xxxxxxx, XX 00000-0000
Fax Number (000) 000-0000
Attn: Xxxxx Xxxxx
===================================== ===========================================================================
Address for All other Notices Ameritas Life Insurance Corp
0000 "X" Xxxxxx
Xxxxxxx, XX 00000-0000
Attn: Xxxxx Xxxxx
===================================== ===========================================================================
Other Instructions AMERITAS LIFE INSURANCE CORP.
by Ameritas Investment Advisors, Inc. as Agent
By____________________________________________________
Name: Xxxxxxx X. Xxxxx
Title: Vice President - Fixed Income Securities
===================================== ===========================================================================
Instructions re Delivery of Notes Law Department of Purchaser
===================================== ===========================================================================
Tax Identification Number 00-0000000
===================================== ===========================================================================
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:
"Acceptable Bank" means any bank or trust company (a) that is organized
under the laws of the United States of America or any State thereof, (b) that
has capital, surplus and undivided profits aggregating at least $100,000,000,
and (c) 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 a rating of "A" or better by
S&P, "A2" or better by Moody's or an equivalent rating by any other credit
rating agency of recognized national standing.
"Acceptable Broker-Dealer" means any Person other than a natural person
(a) that is registered as a broker or dealer pursuant to the Exchange Act and
(b) whose long-term unsecured debt obligations shall have been given a rating of
"A" or better by S&P, "A2" or better by Moody's or an equivalent rating by any
other credit rating agency of recognized national standing.
"Acceptable Consideration" means, with respect to any Transfer of any
Property of the Company or any Subsidiary, cash consideration, promissory notes
or such other consideration (or any combination of the foregoing) as is, in each
case, determined by the board of directors of the Company, in its good faith
opinion, to be in the best interests of the Company and the Subsidiaries and to
reflect the Fair Market Value of such Property.
"Affiliate" means, at any time, and with respect to any Person, any
other Person that at such time directly or indirectly through one or more
intermediaries Controls, or is Controlled by, or is under common Control with,
such first Person. As used in this definition, "Control" means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of a Person, whether through the ownership of voting
securities, by contract or otherwise. Unless the context otherwise clearly
requires, any reference to an "Affiliate" is a reference to an Affiliate of the
Company.
"Agreement, this" means this Agreement as it may from time to time be
amended or supplemented.
"Broadcast Programming Contracts" means contracts pursuant to which the
Company obtains rights to broadcast programs, the cost of which is paid by the
Company over a period of time related to the usage of the programs.
"Business Day" means any day other than a Saturday, a Sunday or a day
on which commercial banks in New York City are required or authorized to be
closed.
"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.
"Closing" is defined in Section 3.
"Closing Date" is defined in Section 3.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, and the rules and regulations promulgated thereunder from time to time.
"Company" means Xxx Enterprises, Incorporated, a Delaware corporation.
"Confidential Information" is defined in Section 20.
"Consolidated Net Income" means, for any period, the net income (or
loss) of the Company and the Subsidiaries for such period, determined on a
consolidated basis for such Persons in accordance with GAAP, after eliminating
all offsetting debits and credits between the Company and the Subsidiaries and
all other items required to be eliminated in the course of the preparation of
consolidated financial statements of the Company and the Subsidiaries in
accordance with GAAP.
"Consolidated Operating Cash Flow" means, for any period, the sum of
(a) Consolidated Net Income for such period, plus
(b) to the extent, and only to the extent, that such amount
was deducted in the computation of Consolidated Net Income for such
period, the aggregate amount of interest expense, depreciation,
amortization, income taxes, deferred items and other non-cash expenses
of the Company and the Subsidiaries during such period, determined on a
consolidated basis for such Persons.
"Consolidated Total Assets" means, at any time, the total assets of the
Company and the Subsidiaries that would be shown as assets on a consolidated
balance sheet of such Persons at such time, prepared in accordance with GAAP,
after eliminating all amounts properly attributable to minority interests, if
any, in the stock and surplus of Subsidiaries.
"Consolidated Total Debt" means, as of any date of determination, the
aggregate amount of all Indebtedness of the Company and the Subsidiaries
outstanding on such date, after eliminating all offsetting debits and credits
between the Company and the Subsidiaries and all other items required to be
eliminated in the course of the preparation of consolidated financial statements
of the Company and the Subsidiaries in accordance with GAAP.
"current Transfer" is defined in Section 10.4(a)(ii).
"Debt Prepayment Application" means, with respect to any Transfer of
Property, the application by the Company or a Subsidiary of cash in an amount
equal to the Net Proceeds Amount with respect to such Transfer to pay Senior
Debt (other than Senior Debt owing to the Company, any Subsidiary or any
Affiliate and Senior Debt in respect of any revolving credit or similar credit
facility providing the Company or any 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 prepay each
outstanding Note in accordance with Section 8.2 in a principal amount which,
when added to the Make-Whole Amount applicable thereto, equals the Ratable
Portion for such Note. As used in this definition, "Ratable Portion" for any
Note means an amount equal to the product of (a) the Net Proceeds Amount being
so applied 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 principal amount of Senior Debt of the
Company.
"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 that rate of interest that is the greater of (i)
2% per annum above the rate of interest stated in clause (a) of the first
paragraph of the Notes or (ii) 2% over the rate of interest publicly announced
by Xxxxxx Guaranty Trust Company of New York in New York, New York as its "base"
or "prime" rate.
"Environmental Laws" means any and all Federal, state, local, and
foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or
governmental restrictions relating to pollution and the protection of the
environment or the release of any materials into the environment, including but
not limited to those related to hazardous substances or wastes, air emissions
and discharges to waste or public systems.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the rules and regulations promulgated thereunder
from time to time in effect.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that is treated as a single employer together with the Company
under Section 414 of the Code.
"Event of Default" is defined in Section 11.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Fair Market Value" means, with respect to any Property at any time,
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, under no compulsion to buy or sell, respectively.
"GAAP" means generally accepted accounting principles as in effect from
time to time in the United States of America.
"Governmental Authority" means
(a) the government of
(i) the United States of America or any State or
other political subdivision thereof, or
(ii) any jurisdiction in which the Company or any
Subsidiary conducts all or any part of its business, or which
asserts jurisdiction over any Properties of the Company or any
Subsidiary, or
(b) any entity exercising executive, legislative, judicial,
regulatory or administrative functions of, or pertaining to, any such
government.
"Guaranty" means, with respect to any Person, any obligation (except
the endorsement in the ordinary course of business of negotiable instruments for
deposit or collection) of such Person guaranteeing or in effect guaranteeing any
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.
"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, without duplication,
(a) all obligations of such Person for borrowed money;
(b) all obligations of such Person for the deferred purchase
price of Property acquired by such Person (excluding (i) accounts payable
arising in the ordinary course of business and (ii) deferred payment obligations
in respect of Broadcast Programming Contracts entered into in the ordinary
course of business, but including all obligations created or arising under any
conditional sale or other title retention agreement with respect to any such
Property);
(c) all obligations of such Person required to be included on its
balance sheet in accordance with GAAP in respect of Capital Leases;
(d) all obligations for borrowed money secured by any Lien
existing on Property owned by such Person (whether or not such obligations have
been assumed by such Person or recourse in respect thereof is available against
such Person); and
(e) any Guaranty of such Person of any obligation or liability of
another Person of a type described in any of clause (a) through clause (d),
inclusive, of this definition.
"Institutional Investor" means any Purchaser and 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 Subsidiary:
(a) in any Person, whether by acquisition of stock, indebtedness
or other obligation or Security, or by loan, guaranty, advance, extension of
credit, capital contribution or otherwise; or
(b) in any Property.
Investments shall be valued at cost less any net return of capital through the
sale or liquidation thereof or other return of capital thereon.
"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).
"Make-Whole Amount" is defined in Section 8.6.
"Material" means material in relation to the business, operations,
affairs, financial condition, assets, or Properties of the Company and its
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 Subsidiaries taken as a whole, or (b) the ability of the Company
to perform its obligations under this Agreement and the Notes, or (c) the
validity or enforceability of this Agreement or the Notes.
"Memorandum" is defined in Section 5.3.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" means any Plan that is a "multiemployer plan" (as
such term is defined in Section 4001(a)(3) of ERISA).
"Net Proceeds Amount" means, with respect to any Transfer of Property
by any Person, an amount, after income taxes in respect of such Transfer, equal
to the result 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.
"Notes" is defined in Section 1.
"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.
"Other Agreements" is defined in Section 2.
"Other Purchasers" is defined in Section 2.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA or any successor thereto.
"Person" means an individual, partnership, corporation, limited
liability company, limited liability partnership, 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.
"Pro Forma Adjustments" means, in respect of any calculation of
Consolidated Operating Cash Flow for any period, the addition or subtraction of
the operating cash flow of any ongoing business acquired or disposed of by the
Company or any Subsidiary during such period, provided that for purposes of such
calculation and compliance with any provisions of this Agreement with respect to
which such Consolidated Operating Cash Flow is being measured, such acquisition
or disposition shall be deemed to have occurred, and all Indebtedness incurred
to finance such acquisition, or repaid in connection with such disposition,
shall be deemed to have been incurred or repaid, as the case may be, on the
first date of such period.
"Property" means real or personal property of any kind, tangible or
intangible, xxxxxx or inchoate.
"Purchaser" means you and the Other Purchasers.
"PTE" is defined in Section 6.2(c).
"QPAM Exemption" means Prohibited Transaction Class Exemption 84-14
issued by the United States Department of Labor.
"Repurchase Agreements" means any written agreement
(a) that provides for (i) the transfer of one or more United
States Governmental Securities in an aggregate principal amount at least equal
to the amount of the Transfer Price (defined below) to the Company or any of its
Subsidiaries from an Acceptable Bank or an Acceptable Broker-Dealer against a
transfer of funds (the "Transfer Price") by the Company or such Subsidiary to
such Acceptable Bank or Acceptable Broker-Dealer, and (ii) a simultaneous
agreement by the Company or such Subsidiary, in connection with such transfer of
funds, to transfer to such Acceptable Bank or Acceptable Broker-Dealer the same
or substantially similar United States Governmental Securities for a price not
less than the Transfer Price plus a reasonable return thereon at a date certain
not later than 365 days after such transfer of funds;
(b) in respect of which the Company or such Subsidiary shall have
the right, whether by contract or pursuant to applicable law, to liquidate such
agreement upon the occurrence of any default thereunder; and
(c) in connection with which the Company or such Subsidiary, or
an agent thereof, shall have taken all action required by applicable law or
regulations to perfect a Lien in such United States Governmental Securities.
"Required Holders" means, at any time, the holders of at least 66-2/3%
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.
"S&P" means Standard & Poor's Ratings Group, a division of McGraw Hill,
Inc.
"Securities Act" means the Securities Act of 1933, as amended from time
to time.
"Security" means "security" as defined by Section 2(1) of the
Securities Act.
"Senior Debt" means, at any time, the Indebtedness evidenced by the
Notes and all Indebtedness of the Company that is not in any manner junior or
subordinate in right of payment to the Notes.
"Senior Financial Officer" means the chief financial officer, principal
accounting officer, treasurer or comptroller of the Company.
"Series" means any or all of any series of Notes issued hereunder and
under the Other Agreements.
"Series A Notes" is defined in Section 1.
"Series B Notes" is defined in Section 1.
"Series C Notes" is defined in Section 1.
"Series D Notes" is defined in Section 1.
"Significant Subsidiary" means at any time any Subsidiary that would at
such time constitute a "significant subsidiary" (as such term is defined in
Regulation S-X of the Securities and Exchange Commission as in effect on the
Closing Date) of the Company.
"Source" is defined in Section 6.2.
"Spin-Off" is defined in Section 10.4(a)(iii).
"Subsidiary" means, as to any Person, any corporation, association or
other business entity in which such Person or one or more of its Subsidiaries or
such Person and one or more of its Subsidiaries owns sufficient equity or voting
interests to enable it or them (as a group) ordinarily, in the absence of
contingencies, to elect a majority of the directors (or Persons performing
similar functions) of such entity, and any partnership or joint venture if more
than a 50% interest in the profits or capital thereof is owned by such Person or
one or more of its Subsidiaries or such Person and one or more of its
Subsidiaries (unless such partnership can and does ordinarily take major
business actions without the prior approval of such Person or one or more of its
Subsidiaries). Unless the context otherwise clearly requires, any reference to a
"Subsidiary" is a reference to a Subsidiary of the Company.
"Subsidiary Stock" is defined in Section 10.4(b).
"Substantial Part" means, at any time, with respect to any Transfer of
Property, any portion of Property of the Company and the Subsidiaries if the
book value of the Property subject to such Transfer, when added to the book
value of all other Property of the Company and the Subsidiaries that was subject
to a Transfer (other than a Transfer described in Section 10.4(a)(i) or Section
10.4(b)(i) through Section 10.4(b)(iii), inclusive) during the then most
recently ended period of 12 consecutive calendar months, exceeds an amount equal
to 15% of Consolidated Total Assets, determined as at the beginning of such 12
month period.
"Transfer" is defined in Section 10.4.
"United States Governmental 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.
"Wholly-Owned Subsidiary" means, at any time, any Subsidiary 100% of
all of the equity interests (except directors' qualifying shares) and voting
interests of which are owned by any one or more of the Company and the Company's
other Wholly-Owned Subsidiaries at such time.
ALL REMAINING SCHEDULES AND EXHIBITS INTENTIONALLY OMITTED
SCHEDULE 4.9
CHANGES IN CORPORATE STRUCTURE
None
SCHEDULE 5.3
DISCLOSURE MATERIALS
None
SCHEDULE 5.4
XXX ENTERPRISES, INCORPORATED SUBSIDIARIES
Percentage of
Voting Securities
State of Incorporation Owned
------------------------------------------------------------------------------------------------
Xxx Technical Systems, Inc. Iowa 100%
Xxx Consolidated Holdings, Inc. South Dakota 100%
KOIN-TV, Inc. Delaware 100%
New Mexico Broadcasting
Company, Inc New Mexico 100%
Accudata, Inc. Iowa 100%
Target Marketing Systems, Inc. Iowa 100%
Journal-Star Printing Co. Nebraska 100%
SJL of Kansas Corp. Kansas 100%
(a) Wichita License Subsidiary Delaware
Corp. 100%
(b) Topeka Television
Corporation Missouri 100%
(i) Topeka License
Subsidiary Corp. Delaware 100%
Oregon News Media, Inc. Delaware 100%
Pacific Northwest Publishing
Group, Inc. Delaware 100%
Nevada Media, Inc. Delaware 100%
Inn Partners, L.C. Iowa 52%
IBS/XXX Partners LLC Delaware 50%*
*The Company has the right to control the limited liability company partnership
on October 1, 2002 if certain conditions are met.
SCHEDULE 5.5
FINANCIAL STATEMENTS
1. Annual Reports to Shareholders for the years ended
September 30, 1997
September 30, 1996
September 30, 1995
September 30, 1994
September 30, 1993
2. Reports filed with the Securities and Exchange Commission on Form 10-K for
the year ended September 30, 1997 and on Form 10-QA for the quarter ended
December 31, 1997.
SCHEDULE 5.8
CERTAIN LITIGATION
None
SCHEDULE 5.11
PATENTS, ETC.
None
SCHEDULE 5.12
ERISA Affiliates
Voting
Securities
Entity Inc. State Owned
------ ---------- -----
Xxx Technical Systems, Inc. Iowa 100%
New Mexico Broadcasting Company, Inc. New Mexico 100%
Accudata, Inc. Iowa 100%
Target Marketing Systems, Inc. Iowa 100%
Journal-Star Printing Co. Nebraska 100%
Madison Newspapers, Inc. Wisconsin 50%
SJL of Kansas Corp. Kansas 100%
(a) Wichita License Subsidiary
Corp. Delaware 100%
(b) Topeka Television
Corporation Missouri 100%
(i) Topeka License
Subsidiary Corp. Delaware 100%
*IBS/XXX Partners LLC Delaware 50%
Oregon News Media, Inc. Delaware 100%
Pacific Northwest Publishing Group, Inc. Delaware 100%
Nevada Media, Inc. Delaware 100%
Inn Partners, LC Iowa 52%
Xxx Medical Plan
Xxx Enterprises, Incorporated
Xxx Consolidated Holdings, Inc. Xxx Enterprises, Incorporated Group Term
Disability Xxx Enterprises, Incorporated Supplementary Benefit Plan Xxx
Enterprises, Incorporated Group Life Insurance Xxx Enterprises, Incorporated
Shopper Life Insurance Xxx Dental Plan Xxx Enterprises, Incorporated Flexible
Spending Account Plan Xxx Enterprises, Incorporated Employees Retirement Account
Plan Revised Retirement Security Plan for Employees of the Journal Star Pacific
Northwest Medical Plan
Pacific Northwest Dental Plan
Pacific Northwest Life Insurance
Pacific Northwest Long Term Disability
Employee Profit Sharing Plan of Pacific Northwest Publishing Group, Inc.
Wisconsin State Journal
Dependent Care Assistance Plan of WSJ
WSJ Health Insurance Premium Pre-Tax Plan
KOIN-TV, Inc.
KGMB-TV Dental Plan
KGMB-TV Flexible Spending Plan
HMSA Medical Plan
IBEW Pension Plan
Kaiser Health Plan
Life Insurance AD&D
Long-Term Disability Insuarnce
Temporary Disability Insurance
* The Company has the right to control the limited liability company partnership
on October 1, 2002 if certain conditions are met.
SCHEDULE 5.14
USE OF PROCEEDS
The proceeds from the sale of the Notes will be used to refinance the
revolving credit facility (see Schedule 5.15) undertaken to finance the
acquisition of The Pacific Northwest Group and for general corporate purposes.
SCHEDULE 5.15
EXISTING INDEBTEDNESS
Teachers Insurance and Annuity
Association of American
9.96% Senior Note, Series E
due January 15, 1999.............................. $ 25,000,000
Credit Agreement with Bank of
American National Trust and Savings
Association and Other Financial
Institutions Party Thereto
Dated as of September 5, 1997
Due September 3, 1998............................. $175,000,000
------------
Total ............................. $200,000,000
============
SCHEDULE 10.2(a)
EXISTING SUBSIDIARY INDEBTEDNESS
None
SCHEDULE 10.5(d)
EXISTING INVESTMENTS
COST AS OF
SEPTEMBER 30, 1997
Madison Newspapers Inc.,
2,500 of Class I Voting
Shares (50% of capitalization).................................. $12,012,303*
Capital Times Company
365 shares of Class A Voting
Common Stock (.6% of capitalization)
9,971 shares of Class B Non-Voting Common
Stock (16.62% of capitalization)................................ 3,876,370
Notes Receivable
AIMS (Madison, WI).............................................. 200,000
C-Text (Ann Arbor, MI).......................................... 200,000
Media Companies and other stock................................... 57,360
* Cost plus equity in undistributed income.
Supplementary Benefit Plan for Executives
Stagecoach Money Market Fund
628,973.873 shares......................................... 628,974
Stagecoach Short-Intermediate
U.S. Government Fund
102,456.855 shares......................................... 991,872
X. Xxxx Price Foreign
Equity Fund
56,597.623 shares.......................................... 1,012,531
Stagecoach Balanced Fund
216,790.976................................................ 2,965,701
Stagecoach Equity Value Fund
172,473.911 shares......................................... 3,089,008
SCHEDULE 10.6(a)
EXISTING LIENS
None
