Exhibit 4.3
[Conformed Copy]
Seaboard Corporation
____________________________
Note Purchase Agreement
____________________________
Dated as of September 30, 2002
$32,500,000 5.80% Senior Notes, Series A, due September 30, 2009
$38,000,000 6.21% Senior Notes, Series B, due September 30, 2009
$7,500,000 6.21% Senior Notes, Series C, due September 30, 2012
$31,000,000 6.92% Senior Notes, Series D, due September 30, 2012
Table of Contents
Section Heading Page
Section 1. Purchase and Sale of Notes 1
Section 1.1. Issue of Notes 1
Section 1.2. The Closing 1
Section 1.3. Purchaser Representations 2
Section 1.4. Expenses 4
Section 2. Warranties and Representations 4
Section 2.1. Nature of Business 4
Section 2.2. Financial Statements; Indebtedness;
Material Adverse Change 4
Section 2.3. Subsidiaries and Affiliates 5
Section 2.4. Title to Properties 5
Section 2.5. Taxes 5
Section 2.6. Pending Litigation 6
Section 2.7. Full Disclosure 6
Section 2.8. Corporate Organization and Authority 6
Section 2.9. Charter Instruments, Other Agreements 7
Section 2.10.Restrictions on Company and
Subsidiaries 7
Section 2.11.Compliance with Law 7
Section 2.12.ERISA 8
Section 2.13.Environmental Compliance 8
Section 0.00.Xxxx of Notes Is Legal and Authorized;
Obligations Are Enforceable 9
Section 2.15.Governmental Consent to Sale of Notes 10
Section 0.00.Xx Defaults under Notes 10
Section 2.17.Private Offering of Notes 10
Section 2.18.Use of Proceeds of Notes. 10
Section 3. Closing Conditions 11
Section 3.1. Opinions of Counsel 11
Section 3.2. Warranties and Representations True. 11
Section 3.3. Performance; No Default 11
Section 3.4. Officers' Certificates 12
Section 3.5. Legality 12
Section 3.6. Private Placement Number 12
Section 3.7. Expenses 12
Section 3.8. Other Purchasers 12
Section 3.9. Xxxxxx Letter 12
Section 3.10.Proceedings Satisfactory 12
Section 4. Principal Payments 12
Section 4.1. Required Prepayments 12
Section 4.2. Optional Prepayments. 14
Section 4.3. Prepayments Among Noteholders. 14
Section 4.4. Special Prepayments 15
Section 4.5. Notation of Notes on Prepayment 16
Section 4.6. No Other Prepayments; Acquisition of
Notes 16
Section 4.7. Letter Agreement Prepayments 16
Section 5. Registration; Exchange; Substitution of Notes 16
Section 5.1. Registration of Notes 16
Section 5.2. Exchange of Notes 16
Section 5.3. Replacement of Notes 17
Section 5.4. Issuance Taxes 18
Section 6. Covenants 18
Section 6.1. Payment of Taxes and Claim 18
Section 6.2 Maintenance of Properties; Corporate
Existence; Etc. 18
Section 6.3. Payment of Notes and Maintenance of Office 19
Section 6.4. Merger; Acquisition 20
Section 6.5. Liens 20
Section 6.6. Consolidated Tangible Net Worth 23
Section 6.7. Funded Debt 23
Section 6.8. Transfer of Property 23
Section 6.9. Subsidiary Debt 26
Section 6.10.ERISA 27
Section 6.11.Line of Business 28
Section 6.12.Transactions with Affiliates 28
Section 6.13.Guaranties 28
Section 6.14.Private Offering 29
Section 6.15.Restricted Payments 29
Section 6.16.Interest Charge Coverage Ratio 29
Section 6.17.Limitation on Investments 29
Section 7. Information as to Company 30
Section 7.1. Financial and Business Information 30
Section 7.2. Officers' Certificates 33
Section 7.3. Permitted Affiliate Transactions 33
Section 7.4. Accountants' Certificates 34
Section 7.5. Inspection 34
Section 8. Events of Default 34
Section 8.1. Nature of Events 34
Section 8.2. Default Remedies 36
Section 8.3. Annulment of Acceleration of Notes 37
Section 9. Interpretation of This Agreement 38
Section 9.1. Terms Defined 38
Section 9.2. Generally Accepted Accounting Principles 53
Section 9.3. Directly or Indirectly 54
Section 9.4. Section Headings and Table of Contents
and Construction 54
Section 9.5. Governing Law 54
Section 10. Miscellaneous 54
Section 10.1.Communications 54
Section 10.2.Confidentiality 55
Section 10.3.Reproduction of Documents 56
Section 10.4.Survival 56
Section 10.5.Successors and Assigns 57
Section 10.6.Amendment and Waiver 57
Section 10.7.Payments on Notes 58
Section 10.8.Entire Agreement 59
Section 10.9.Duplicate Originals, Execution in Counterpart 59
Annex 1 - Information as to Purchasers
Annex 2 - Payment Instructions at Closing
Annex 3 - Information as to Company
Annex 4 - Summary of Terms of Permitted Affiliate Transactions
Exhibit A1 - Form of 5.80% Senior Note, Series A, due September 30,2009
Exhibit A2 - Form of 6.21% Senior Note, Series B, due September 30,2009
Exhibit A3 - Form of 6.21% Senior Note, Series C, due September 30,2012
Exhibit A4 - Form of 6.92% Senior Note, Series D, due September 30,2012
Exhibit B1 - Form of Company General Counsel's Closing Opinion
Exhibit B2 - Form of Company Special Counsel's Closing Opinion
Exhibit B3 - Form of Special Counsel's Closing Opinion
Exhibit C - Form of Xxxxxx Letter
Seaboard Corporation
Note Purchase Agreement
$32,500,000 5.80% Senior Notes, Series A, due September 30, 2009
$38,000,000 6.21% Senior Notes, Series B, due September 30, 2009
$7,500,000 6.21% Senior Notes, Series C, due September 30, 2012
$31,000,000 6.92% Senior Notes, Series D, due September 30, 2012
Dated as of September 30, 2002
To each of the Purchasers
Listed on Annex 1 hereto
Ladies and Gentlemen:
Seaboard Corporation (together with its successors and
assigns, the "Company"), a Delaware corporation, hereby agrees
with you as follows:
Section 1. Purchase and Sale of Notes.
Section 1.1. Issue of Notes. The Company will authorize the
issue and sale of (i) $32,500,000 5.80% Senior Notes, Series A,
due September 30, 2009 (the "Series A Notes"), (ii) $38,000,000
6.21% Senior Notes, Series B, due September 30, 2009 (the "Series
B Notes), (iii) $7,500,000 6.21% Senior Notes, Series C, due
September 30, 2012 (the "Series C Notes"), and (iv) $31,000,000
6.92% Senior Notes, Series D, due September 30, 2012 (the "Series
D Notes"). The Series A Notes, the Series B Notes, the Series C
Notes and the Series D Notes are herein collectively referred to
as the "Notes," such term to include any such notes issued in
substitution therefor pursuant to Section 5 of this Agreement.
The Series A Notes, the Series B Notes, the Series C Notes and
the Series D Notes shall be substantially in the form set out in
Exhibit A1, Exhibit A2, Exhibit A3 and Exhibit A4, respectively,
with such changes therefrom, if any, as may be approved by you
and the Company.
Section 1.2. The Closing.
(a) Purchase and Sale of Notes. The Company hereby agrees to
sell to you and you hereby agree to purchase from the Company, in
accordance with the provisions hereof, the aggregate principal
amount of Notes set forth below your name on Annex 1 hereto at
one hundred percent (100%) of the principal amount thereof.
(b) The Closing. The closing (the "Closing") of the
Company's sale of Notes will be held on October 8, 2002 (the
"Closing Date") at 9:00 a.m., local time, at the office of
Xxxxxxx and Xxxxxx, your special counsel. At the Closing, the
Company will deliver to you one or more Notes (as set forth below
your name on Annex 1 hereto), in the denominations indicated on
Annex 1 hereto, in the aggregate principal amount of your
purchase, dated the Closing Date and payable to you or payable as
indicated on Annex 1 hereto, against payment by federal funds
wire transfer in immediately available funds of the purchase
price thereof, as directed by the Company on Annex 2 hereto.
(c) Other Purchasers. Contemporaneously with the execution
and delivery hereof, the Company is entering into a separate Note
Purchase Agreement identical (except for the name and signature
of the purchaser) hereto (this Agreement and such other separate
Note Purchase Agreements collectively, the "Note Purchase
Agreements") with each other purchaser (each an "Other
Purchaser") listed on Annex 1 hereto, providing for the sale to
each Other Purchaser of Notes in the aggregate principal amount
set forth below its name on such Annex. The sales of the Notes
to you and to each Other Purchaser are to be separate sales.
Section 1.3. Purchaser Representations.
(a) Purchase for Investment. You represent that you are
purchasing the Notes for your own account, for the account of
another for which you have sole investment discretion, or for a
trust account for which you are the trustee, and not with a view
to or for sale in connection with any distribution thereof within
the meaning of the Securities Act; provided, that you have the
right to dispose of the Notes, or any part thereof, if you deem
it advisable to do so, either pursuant to a registration of the
Notes under the Securities Act and other applicable securities
acts or pursuant to an applicable exemption from the requirement
of such registration. It is understood that, in making the
representations set out in Section 2.14 hereof and Section 2.15
hereof, the Company is relying, to the extent applicable, upon
your representation as aforesaid. You further represent that you
have not relied upon any "margin stock" (as defined in
Section 2.18) as collateral for the Notes.
(b) ERISA. You represent, with respect to the funds with
which you are acquiring the Notes, and solely for the purpose of
determining whether such purchase is a "prohibited transaction"
(as provided for in Section 406 of ERISA or Section 4975 of the
IRC) 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" within the meaning of Department of Labor
Prohibited Transaction Exemption ("PTE") 95-60 (issued
July 12, 1995) and there is no employee benefit plan,
treating as a single plan all plans maintained by the same
employer or employee organization, with respect to which the
amount of the general account reserves and liabilities for
all contracts held by or on behalf of such plan, exceeds ten
percent (10%) of the total reserves and liabilities of such
general account (exclusive of separate account liabilities)
plus surplus, as set forth in the NAIC Annual Statement you
most recently filed with your state of domicile; or
(b) the Source is either (i) an insurance company
pooled separate account, within the meaning of PTE 90-1
(issued January 29, 1990), or (ii) a bank collective
investment fund, within the meaning of the PTE 91-38 (issued
July 12, 1991) and, except as you have disclosed in writing
to the Company, prior to the execution and delivery of this
Agreement, no employee benefit plan or group of plans
maintained by the same employer or employee organization
beneficially owns more than 10% of all assets allocated to
such pooled separate account or collective investment fund;
or
(c) the Source constitutes assets of an "investment
fund" (within the meaning of Part V of the QPAM Exemption)
managed by a "qualified professional asset manager" or
"QPAM" (within the meaning of Part V of the QPAM Exemption),
no employee benefit plan's assets that are included in such
investment fund, when combined with the assets of all other
employee benefit plans established or maintained by the same
employer or by an affiliate (within the meaning of
Section V(c)(1) of the QPAM Exemption) of such employer or
by the same employee organization and managed by such QPAM,
exceed 20% of the total client assets managed by such QPAM,
the conditions of Part I(c) and (g) of the QPAM Exemption
are satisfied, neither the QPAM nor a person controlling or
controlled by the QPAM (applying the definition of "control"
in Section V(e) of the QPAM Exemption) owns a 5% or more
interest in the Company and (i) the identity of such QPAM
and (ii) the names of all employee benefit plans whose
assets are included in such investment fund have been
disclosed to the Company in writing pursuant to this
paragraph (c) prior to the execution and delivery of this
Agreement; or
(d) the Source is a governmental plan; or
(e) the Source is one or more employee benefit plans,
or a separate account or trust fund comprised of one or more
employee benefit plans, each of which prior to the execution
and delivery of this Agreement has been identified to the
Company in writing pursuant to this paragraph (e); or
(f) the Source does not include assets of any employee
benefit plan, other than a plan exempt from the coverage of
ERISA; or
(g) the Source is an insurance company separate
account maintained solely in connection with the fixed
contractual obligations of the insurance company under which
the amounts payable, or credited, to any employee benefit
plan (or its related trust) and to any participant or
beneficiary of such plan (including any annuitant) are not
affected in any manner by the investment performance of the
separate account.
If you or any subsequent transferee of the Notes indicates that
you or any such transferee is relying on any representation
contained in paragraph (b), (c) or (e) above, the Company shall
deliver on the date of issuance of such Notes and on the date of
any applicable transfer a certificate, which shall, to the extent
true, either state that (i) it is neither a party in interest nor
a "disqualified person" (as defined in section 4975(e)(2) of the
IRC), with respect to any plan identified pursuant to
paragraphs (b) or (e) above, or (ii) with respect to any plan,
identified pursuant to paragraph (c) above, neither it nor any
"affiliate" (as defined in Section V(c) of the QPAM Exemption)
has at such time, and during the immediately preceding one year,
exercised the authority to appoint or terminate said QPAM as
manager of any plan identified in writing pursuant to
paragraph (c) above or to negotiate the terms of said QPAM's
management agreement on behalf of any such identified plan. As
used in this Section 1.3(b), the terms "employee benefit plan",
"governmental plan", "party in interest" and "separate account"
shall have the respective meanings assigned to such terms in
Section 3 of ERISA.
Section 1.4. Expenses. Whether or not the Notes are sold, the
Company shall pay, at the Closing (if the Notes are sold, and
otherwise upon receipt of any statement or invoice therefor), the
statement presented at the Closing by your special counsel for
reasonable fees and disbursements incurred in connection
herewith, each additional statement for reasonable fees and
disbursements (promptly upon receipt thereof) of your special
counsel rendered after the Closing in connection with the
issuance of the Notes, and all expenses incurred in complying
with each of the conditions to closing set forth in Section 3
hereof.
Section 2. Warranties and Representations.
To induce you to enter into this Agreement and to purchase
the Notes listed on Annex 1 hereto below your name, the Company
warrants and represents, as of the Closing Date, as follows:
Section 2.1. Nature of Business. The Private Placement
Memorandum (together with all exhibits and annexes thereto, the
"Placement Memorandum"), dated July 2002, and prepared by Banc of
America Securities LLC (a copy of which previously has been
delivered to you), correctly describes the general nature of the
business and principal Properties of the Company and the
Subsidiaries as of the Closing Date.
Section 2.2. Financial Statements; Indebtedness; Material
Adverse Change.
(a) Financial Statements. The Company has provided you with
the financial statements described in Part 2.2(a) of Annex 3
hereto. Except as otherwise noted in the Placement Memorandum or
in Part 2.2(a) of Annex 3 hereto and subject to year-end audit
and adjustment and the lack of footnotes for such financial
statements which have not been audited, such financial statements
have been prepared in accordance with generally accepted
accounting principles consistently applied, and present fairly,
in all material respects, the consolidated financial position of
the Company and its consolidated subsidiaries as of such dates
and the results of their operations and cash flows for such
periods.
(b) Indebtedness. Part 2.2(b) of Annex 3 hereto lists all
Indebtedness of the Company and the Subsidiaries as of June 29,
2002, and provides the following information with respect to each
item of such Indebtedness: the obligor, the holder thereof, the
outstanding amount, the current portion, and the collateral
securing such Indebtedness, if any. The Company has not incurred
any additional Indebtedness from and after June 29, 2002 to and
including the Closing Date.
(c) Material Adverse Change. Since December 31, 2001 there
has been no change in the business, prospects, profits,
Properties or condition (financial or otherwise) of the Company
or any of the Subsidiaries except changes in the ordinary course
of business that, in the aggregate for all such changes, could
not reasonably be expected to have a Material Adverse Effect.
Section 2.3. Subsidiaries and Affiliates. Part 2.3 of Annex 3
hereto states
(a) the name of each of the Subsidiaries, its
jurisdiction of incorporation and the percentage of its
Voting Stock owned by the Company and each other Subsidiary,
and identifies each Material Subsidiary, and
(b) the name of each Affiliate (other than natural
persons who are Affiliates solely as a result of their
membership in the families of officers or directors) and the
nature of the affiliation.
Each of the Company and the Subsidiaries has good and marketable
title to all of the shares it purports to own of the stock of
each Subsidiary, free and clear in each case of any Lien. All
such shares have been duly issued and are fully paid and
nonassessable.
Section 2.4. Title to Properties. (a) Each of the Company and
the Subsidiaries has good title to all of the Property reflected
in the most recent balance sheet referred to in Section 2.2
hereof (except as sold or otherwise disposed of in the ordinary
course of business), except for such failures to have good title
as are immaterial to such financial statements and that, in the
aggregate for all such failures, could not reasonably be expected
to have a Material Adverse Effect. All such Property is free
from Liens not permitted by Section 6.5 hereof.
(b) Each of the Company and the Subsidiaries owns,
possesses or has the right to use all of the patents, trademarks,
service marks, trade names, copyrights, licenses, and rights with
respect thereto, necessary for the present and currently planned
future conduct of its business, without any known conflict with the
rights of others, except for such failures to own, possess, or
have the right to use, that, in the aggregate for all such
failures, could not reasonably be expected to have a Material
Adverse Effect.
Section 2.5. Taxes.
(a) Returns Filed; Taxes Paid. (i) All tax returns
required to be filed by the Company and each Subsidiary and any
other Person with which the Company or any Subsidiary files or has
filed a consolidated return in any jurisdiction have been filed
on a timely basis, and all taxes, assessments, fees and other
governmental charges upon each of the Company, such Subsidiary
and any such Person, and upon any of their respective Properties,
income or franchises, that are due and payable have been paid,
except for such tax returns and such tax payments that could not,
in the aggregate for all such tax returns and payments,
reasonably be expected to have a Material Adverse Effect.
(ii) All liabilities of each of the Company, the
Subsidiaries and the other Persons referred to in Section 2.5(a)
(i) hereof with respect to federal income taxes have been finally
determined except for the fiscal years 1994 through 2001, the only
years not closed by the completion of an audit or the expiration
of the statute of limitations.
(b) Book Provisions Adequate. (i) The amount of the
liability for taxes reflected in each of the consolidated balance
sheets referred to in Section 2.2 hereof is in each case an
adequate provision for taxes as of the dates of such balance
sheets (including, without limitation, any payment due pursuant
to any tax sharing agreement) as are or may become payable by any
one or more of the Company and the other Persons consolidated
with the Company in such financial statements in respect of all
tax periods ending on or prior to such dates.
(ii) The Company does not know of any proposed additional
tax assessment against it or any such Person that is not reflected in
full in the most recent balance sheet referred to in Section 2.2
hereof.
Section 2.6. Pending Litigation. (a) There are no proceedings,
actions or investigations pending or, to the knowledge of the
Company, threatened against or affecting the Company or any
Subsidiary in any court or before any Governmental Authority or
arbitration board or tribunal that, in the aggregate for all such
proceedings, actions and investigations, could reasonably be
expected to have a Material Adverse Effect.
(b) Neither the Company nor any Subsidiary is in default
with respect to any judgment, order, writ, injunction or decree of any
court, Governmental Authority, arbitration board or tribunal
that, in the aggregate for all such defaults, could reasonably be
expected to have a Material Adverse Effect.
Section 2.7. Full Disclosure. The financial statements referred
to in Section 2.2 hereof do not, nor does this Agreement, the
Placement Memorandum or any written statement furnished by or on
behalf of the Company to you in connection with the negotiation
or the closing of the sale of the Notes contain any untrue
statement of a material fact or omit a material fact necessary to
make the statements contained therein and herein not misleading.
There is no fact that the Company has not disclosed to you in
writing that has had or, so far as the Company can now reasonably
foresee, could reasonably be expected to have, a Material Adverse
Effect.
Section 2.8. Corporate Organization and Authority. Each of the
Company and the Material Subsidiaries
(a) is a corporation or other entity duly organized,
validly existing and in good standing under the laws of its
jurisdiction of organization,
(b) has all legal and corporate or other power and
authority to own and operate its Properties and to carry on
its business as now conducted and as presently proposed to
be conducted,
(c) has all licenses, certificates, permits,
franchises and other governmental authorizations necessary
to own and operate its Properties and to carry on its
business as now conducted and as presently proposed to be
conducted, except where the failure to have such licenses,
certificates and permits, franchises and other governmental
authorizations, in the aggregate for all such failures,
could not reasonably be expected to have a Material Adverse
Effect, and
(d) has duly qualified or has been duly licensed, and
is authorized to do business and is in good standing, as a
foreign corporation or other entity, in each state in the
United States of America and in each other jurisdiction
where the failure to be so qualified or licensed and
authorized and in good standing, in the aggregate for all
such failures, could reasonably be expected to have a
Material Adverse Effect.
Section 2.9. Charter Instruments, Other Agreements. Neither the
Company nor any Subsidiary is in violation in any respect of any
term of any charter instrument or bylaw.
Neither the Company nor any Subsidiary is in violation in
any respect of any term in any agreement or other instrument to
which it is a party or by which it or any of its Property may be
bound except for such violations that, in the aggregate for all
such failures, could not reasonably be expected to have a
Material Adverse Effect.
Section 2.10. Restrictions on Company and Subsidiaries. Neither
the Company nor any Subsidiary:
(a) is a party to any contract or agreement, or
subject to any charter or other corporate restriction that,
in the aggregate for all such contracts, agreements,
charters and corporate restrictions, could reasonably be
expected to have a Material Adverse Effect;
(b) is a party to any contract or agreement that
restricts the right or ability of such corporation to incur
Indebtedness, other than this Agreement and the agreements
listed in Part 2.10 of Xxxxx 0 xxxxxx, xxxx of which
restricts the issuance and sale of the Notes or the
performance of the Company hereunder or under the Notes, and
true, correct and complete copies of each of which have been
provided to you; and
(c) has agreed or consented to cause or permit in the
future (upon the happening of a contingency or otherwise)
any of its Property, whether now owned or hereafter
acquired, to be subject to a Lien not permitted by
Section 6.5 hereof.
Section 2.11. Compliance with Law. Neither the Company nor any
Subsidiary is in violation of any law, ordinance, governmental
rule or regulation to which it is subject, which violations, in
the aggregate, could reasonably be expected to have a Material
Adverse Effect.
Section 2.12. ERISA.
(a) Prohibited Transactions. Neither the execution of
this Agreement nor the purchase of the Notes by you will constitute
a "prohibited transaction" (as such term is defined in section 406
of ERISA or section 4975 of the IRC). The representation by the
Company in the preceding sentence is made in reliance upon and
subject to the accuracy of the representations in Section 1.3(b)
hereof as to the source of funds used by you.
(b) Pension Plans.
(i) Compliance with ERISA. The Company and the ERISA
Affiliates are in compliance with ERISA, except for such
failures to comply that, in the aggregate for all such
failures, could not reasonably be expected to have a
Material Adverse Effect.
(ii) Funding Status. No accumulated funding deficiency
(as defined in section 302 of ERISA and section 412 of the
IRC), whether or not waived, exists with respect to any
Pension Plan.
(iii) PBGC. No liability to the PBGC has been or is
expected to be incurred by the Company or any ERISA
Affiliate with respect to any Pension Plan that,
individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect. No circumstance
exists that constitutes grounds under section 4042 of ERISA
entitling the PBGC to institute proceedings to terminate, or
appoint a trustee to administer, any Pension Plan or trust
created thereunder, nor has the PBGC instituted any such
proceeding.
(iv) Multiemployer Plans. Neither the Company nor any
ERISA Affiliate has incurred or presently expects to incur
any withdrawal liability under Title IV of ERISA with
respect to any Multiemployer Plan. There have been no
"reportable events" (as such term is defined in section 4043
of ERISA) with respect to any Multiemployer Plan that could
result in the termination of such Multiemployer Plan and
give rise to a liability of the Company or any ERISA
Affiliate in respect thereof.
(v) Foreign Pension Plan. Except as disclosed on
Part 2.12(b)(v) of Annex 3, the present value of all
benefits vested under each Foreign Pension Plan, determined
as of the most recent valuation date in respect thereof,
does not exceed the value of the assets of such Foreign
Pension Plan, and all required payments in respect of the
funding of such Foreign Pension Plan have been made.
Section 2.13. Environmental Compliance.
(a) Compliance. Each of the Company and the Subsidiaries is
in compliance with all Environmental Protection Laws in effect in
each jurisdiction where it is currently doing business and in
which the failure so to comply, in the aggregate for all such
failures, could reasonably be expected to have a Material Adverse
Effect.
(b) Liability. Neither the Company nor any Subsidiary is
subject to any liability under any Environmental Protection Laws
that, in the aggregate for all such liabilities, could reasonably
be expected to have a Material Adverse Effect.
(c) Notices. Neither the Company nor any Subsidiary has
received any
(i) otice from any Governmental Authority by which
any of its currently or previously owned or leased
Properties has been identified in any manner by any
Governmental Authority as a hazardous substance disposal or
removal site, "Super Fund" clean-up site, or candidate for
removal or closure pursuant to any Environmental Protection
Law,
(ii) notice of any Lien arising under or in connection
with any Environmental Protection Law that has attached to
any revenues of, or to, any of its currently or previously
owned or leased Properties, or
(iii) any communication, written or oral, from any
Governmental Authority concerning action or omission by the
Company or such Subsidiary in connection with its currently
or previously owned or leased Properties resulting in the
release of any hazardous substance resulting in any
violation of any Environmental Protection Law,
in each case where the effect of which, in the aggregate for all
such notices and communications, could reasonably be expected to
have a Material Adverse Effect.
Section 2.14. Sale of Notes Is Legal and Authorized; Obligations
Are Enforceable.
(a) Sale of Notes is Legal and Authorized. Each of the
issuance, sale and delivery of the Notes by the Company, the
execution and delivery hereof by the Company and compliance by
the Company with all of the provisions hereof and of the Notes:
(i) is within the corporate powers of the Company; and
(ii) is legal and does not conflict with, result in any
breach of any of the provisions of, constitute a default
under, or result in the creation of any Lien upon any
Property of the Company or any Subsidiary under the
provisions of, any agreement, charter instrument, bylaw or
other instrument to which it is a party or by which it or
any of its Property may be bound.
(b) Obligations are Enforceable. Each of this Agreement and
the Notes has been duly authorized by all necessary action on the
part of the Company, has been executed and delivered by duly
authorized officers of the Company, and constitutes a legal,
valid and binding obligation of the Company, enforceable in
accordance with its terms, except that the enforceability hereof
and of the Notes may be:
(i) limited by applicable bankruptcy, reorganization,
arrangement, insolvency, moratorium, or other similar laws
affecting the enforceability of creditors' rights generally;
and
(ii) subject to the availability of equitable remedies.
Section 2.15. Governmental Consent to Sale of Notes. Neither the
nature of the Company nor any Subsidiary, or of any of their
respective businesses or Properties, nor any relationship between
the Company or any Subsidiary and any other Person, nor any
circumstance in connection with the offer, issuance, sale or
delivery of the Notes and the execution and delivery of this
Agreement, is such as to require a consent, approval or
authorization of, or filing, registration or qualification with,
any Governmental Authority on the part of the Company as a
condition to the execution and delivery of this Agreement or the
offer, issuance, sale or delivery of the Notes. Subject to Part
2.15 of Annex III, 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 or the Federal Power Act as amended.
Section 2.16. No Defaults under Notes. No event has occurred and
no condition exists that, upon the execution and delivery of this
Agreement and the issuance and sale of the Note would constitute
a Default or an Event of Default.
Section 2.17. Private Offering of Notes. Neither the Company nor
Banc America Securities LLC (the only Person authorized or
employed by the Company as agent, broker, dealer or otherwise in
connection with the offering or sale of the Notes or any similar
Security of the Company, other than employees of the Company) has
offered any of the Notes or any similar Security of the Company
for sale to, or solicited offers to buy any thereof from, or
otherwise approached or negotiated with respect thereto with, any
prospective purchaser, other than you, the Other Purchasers and
40 other institutional investors, each of whom was offered all or
a portion of the Notes at private sale for investment.
Section 2.18. Use of Proceeds of Notes.
(a) Use of Proceeds. The Company shall use the proceeds of
the sale of the Notes as set forth on Part 2.18 of Annex 3
hereto.
(b) Margin Securities. None of the transactions
contemplated herein and in the Notes (including, without limitation,
the use of the proceeds from the sale of the Notes) violates, will
violate or will result in a violation of section 7 of the
Exchange Act, or any regulations issued pursuant thereto,
including, without limitation, Regulation U, Regulation T and
Regulation X of the Board of Governors of the Federal Reserve
System, 12 C.F.R., Chapter 11. Neither the Company nor any
Subsidiary, with the proceeds of the sale of the Notes, intends
to carry or purchase, or refinance borrowings that were used to
carry or purchase, any "margin stock" (as defined by said
Regulation U), including margin stock originally issued by the
Company or any Subsidiary, which "margin stock," directly or
indirectly (as defined by said Regulation U), secures the Notes.
(c) Absence of Foreign or Enemy Status. Neither the
sale of the Notes nor the use of proceeds from the sale thereof will
result in a violation of any of the foreign assets control
regulations of the United States Treasury Department (31 CFR,
Subtitle B, Chapter V, as amended), or any ruling issued
thereunder or any enabling legislation or Presidential Executive
Order in connection therewith or Executive Order No. 13,224, 66
Fed. Reg. 49,079 (September 24, 2001) (Executive Order Blocking
Property and Prohibiting Transactions with Persons Who Commit,
Threaten, or Support Terrorism).
Section 3. Closing Conditions.
Your obligation to purchase and pay for the Notes to be
delivered to you at the Closing is subject to the conditions
precedent set forth in this Section 3. The failure of the
Company to satisfy such conditions shall not operate to waive any
of your rights against the Company.
Section 3.1. Opinions of Counsel. You shall have received
opinions from
(a) (i) Xxxxx X. Xxxxxx, Esq., Vice President and
General Counsel of the Company, substantially in the form
set forth in Exhibit B1 hereto and covering such other
matters incident to the transactions contemplated hereby as
you may reasonably request (and the Company hereby instructs
its General Counsel to deliver such opinion to you), and
(ii) Ober, Kaler, Xxxxxx & Xxxxxxx, a Professional
Corporation, special New York counsel to the Company,
substantially in the form set forth in Exhibit B2 hereto and
covering such other matters incident to the transactions
contemplated hereby as you may reasonably request (and the
Company hereby instructs such counsel to deliver such
opinion to you), and
(b) Xxxxxxx and Xxxxxx, your special counsel,
substantially in the form set forth in Exhibit B3 hereto and
covering such other matters as you may reasonably request,
each dated as of the Closing Date.
Section 3.2. Warranties and Representations True. The
warranties and representations contained in Section 2 hereof
shall be true on the Closing Date with the same effect as though
made on and as of that date.
Section 3.3. Performance; No Default. The Company shall have
performed and complied with all agreements and conditions
contained in this Agreement required to be performed or complied
with by the Company prior to or at the Closing, and after giving
effect to the issue and sale of the Notes (and the application of
the proceeds thereof as contemplated by Section 2.18), no Default
or Event of Default shall have occurred and be continuing.
Neither the Company nor any Subsidiary shall have entered into
any transaction since the date of the Placement Memorandum that
would have been prohibited by Section 6 hereof had such Section
applied since such date.
Section 3.4. Officers' Certificates. You shall have received
(a) Officer's Certificate of the Company. The Company
shall have delivered to you a certificate signed by a Senior Officer
dated the date of the Closing, certifying that the conditions
specified in Sections 3.2 and 3.3 have been fulfilled.
(b) Secretary's Certificate of the Company. 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 and this Agreement.
Section 3.5. Legality. The Notes shall on the Closing Date
qualify as a legal investment for you under applicable insurance
law (without regard to any "basket" or "leeway" provisions), and
you shall have received such evidence as you may reasonably
request to establish compliance with this condition.
Section 3.6. Private Placement Number. The Company shall have
obtained or caused to be obtained a private placement number for
the Notes from the CUSIP Service Bureau of Standard & Poor's
Corporation and you shall have been informed of such private
placement number.
Section 3.7. Expenses. All fees and disbursements required to
be paid pursuant to Section 1.4 hereof shall have been paid in
full.
Section 3.8. Other Purchasers. None of the Other Purchasers
shall have failed to execute and deliver a Note Purchase
Agreement or to accept delivery of or make payment for the Notes
to be purchased by it on the Closing Date.
Section 3.9. Xxxxxx Letter. H. Xxxxx Xxxxxx, Seaboard Flour
Corporation and the Company shall have executed and delivered to
each of you a letter in substantially the form attached hereto as
Exhibit C.
Section 3.10. Proceedings Satisfactory. All proceedings taken in
connection with the issuance and sale of the Notes and all
documents and papers relating thereto shall be satisfactory to
you and your special counsel. You and your special counsel shall
have received copies of such documents and papers as you or they
may reasonably request in connection therewith or in connection
with your special counsel's closing opinion, all in form and
substance satisfactory to you and your special counsel.
Section 4. Principal Payments.
Section 4.1. Required Prepayments.
(a) On September 30, 2005 and on each September 30
thereafter to and including September 30, 2008, the Company will
prepay $6,500,000 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 any partial prepayment of the Series A Notes pursuant to
Section 4.2 shall be deemed to be applied first, to the amount of
principal scheduled to remain unpaid on September 30, 2009, and
then to the remaining scheduled principal payments in inverse
chronological order. The entire unpaid principal amount of the
Series A Notes shall become due and payable on September 30,
2009.
Upon any partial prepayment of the Series A Notes pursuant
to Section 4.4 or 4.7 or any purchase of less than all of the
Series A Notes permitted by Section 4.6, the principal amount of
each required prepayment of the Series A Notes becoming due under
paragraph (a) of this Section 4.1 on and after the date of such
prepayment or purchase shall be reduced in the same proportion as
the aggregate unpaid principal amount of the Series A Notes is
reduced as a result of such prepayment or purchase.
(b) No prepayment of the principal of the Series B
Notes is required prior to its maturity. The entire principal of
the Series B Notes remaining outstanding on September 30, 2009,
together with interest accrued thereon shall become due and
payable on September 30, 2009.
(c) On September 30, 2006 and on each September 30
thereafter to and including September 30, 2011, the Company will
prepay $1,071,428 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 any partial prepayment of the Series C Notes pursuant to
Section 4.2 shall be deemed to be applied first, to the amount of
principal scheduled to remain unpaid on September 30, 2012, and
then to the remaining scheduled principal payments in inverse
chronological order. The entire unpaid principal amount of the
Series C Notes shall become due and payable on September 30,
2012.
Upon any partial prepayment of the Series C Notes pursuant
to Section 4.4 or 4.7 or any purchase of less than all of the
Series C Notes permitted by Section 4.6, the principal amount of
each required prepayment of the Series C Notes becoming due under
paragraph (c) of this Section 4.1 on and after the date of such
prepayment or purchase shall be reduced in the same proportion as
the aggregate unpaid principal amount of the Series C Notes is
reduced as a result of such prepayment or purchase.
(d) No prepayment of the principal of the Series D
Notes is required prior to its maturity. The entire principal
of the Series D Notes remaining outstanding on September 30, 2012,
together with interest accrued thereon shall become due and
payable on September 30, 2012.
Section 4.2. Optional Prepayments.
(a) Optional Prepayments. The Company may prepay the
principal amount of the Notes in whole or in part, at any time,
in multiples of Ten Million Dollars ($10,000,000) (or, if the
aggregate outstanding principal amount of the Notes is less than
Ten Million Dollars ($10,000,000) at such time, then such
principal amount), together with
(i) an amount equal to the Make-Whole Amount due at
such time in respect of the principal amount of the Notes
being so prepaid, and
(ii) interest on such principal amount then being
prepaid accrued to the prepayment date.
(b) Notice of Optional Prepayment. The Company will give
notice of any optional prepayment of the Notes to each holder of
Notes not less than thirty (30) days or more than sixty (60) days
before the date fixed for prepayment, specifying:
(i) such prepayment date;
(ii) the Section hereof under which the prepayment is
to be made;
(iii) the principal amount of each Note to be prepaid on
such date;
(iv) the interest to be paid on each such Note, accrued
to the date fixed for payment; and
(v) the calculation (with details) of an estimated
Make-Whole Amount, if any, (calculated as if the date of
such notice was the date of prepayment) due in connection
with such prepayment.
Notice of prepayment having been so given, the aggregate
principal amount of the Notes to be prepaid specified in such
notice, together with the Make-Whole Amount as of the specified
prepayment date with respect thereto, if any, and accrued
interest thereon shall become due and payable on the specified
prepayment date. Two (2) Business Days prior to the making of
such prepayment, the Company shall deliver to each holder of
Notes by facsimile transmission a certificate of a Senior
Financial Officer specifying the details of the calculation of
such Make-Whole Amount as of the specified prepayment date.
Section 4.3. Prepayments Among Noteholders. If at the time any
prepayment of the principal of the Notes made pursuant to Section
4.2 hereof is due there is more than one Note outstanding, the
aggregate principal amount of each optional partial prepayment of
the Notes shall be allocated among the holders of the Notes of
all series at the time outstanding in proportion to the
respective unpaid principal amounts of the Notes then
outstanding.
Section 4.4. Special Prepayments.
Prepayments of the Notes. The Company may, in connection
with any Transfer permitted to occur pursuant to Section 6.8
hereof, make one offer to prepay the Notes in connection with
each such Transfer, provided that each of the following
conditions shall be satisfied in respect thereof:
(a) The aggregate amount of the offer (the "Offered
Prepayment Amount") shall be greater than or equal to the
Net Transfer Proceeds of such Transfer not previously used
or intended to be used by the Company in connection with a
Reinvested Transfer pursuant to Section 6.8(e) with respect
to such Transfer or otherwise allocated to Section 6.8(b) by
the Company.
(b) The Company shall irrevocably offer such Offered
Prepayment Amount in a writing delivered to each holder of
Notes not more than three hundred sixty-five (365) days
after the date of the substantial completion of such
Transfer (the "Transfer Date") for the prepayment of the
Notes (together with any Make-Whole Amount and interest
accrued and unpaid thereon). Such written offer will refer
to this Section 4.4, will briefly describe such Transfer,
will specify the date fixed for the making of such
prepayment (which shall not be less than thirty (30) days
after, nor more than sixty (60) days after, the last day on
which such prepayment is offered), and the amount of such
Offered Prepayment Amount, in the aggregate and in respect
of each holder of Notes, and will provide detailed
calculation supporting the foregoing. The Company shall
deliver such written notice a second time ten days after the
original sending of such notice to each holder of a Note
which has not accepted or rejected such Offered Prepayment
within ten (10) days of the original sending of such notice,
and confirm receipt by telephone call to the recipient.
Each holder of a Note which does not reject such offer in
writing within thirty (30) days of the original sending of
such notice shall be deemed to have accepted such offer.
(c) The Company shall pay to each holder of a Note
which shall have accepted such offer such holder's ratable
share of the Offered Prepayment Amount (such ratable amount
being determined on the basis of the aggregate principal
amount of all Notes outstanding the holders of which shall
have accepted such offer); to the extent that any portion of
the Offered Prepayment Amount shall not be so used, it shall
be entitled to be retained and used by the Company for
whatever purposes it may elect and such ratable share shall
be applied to the principal of each such Note. The Company
shall, in addition, pay all interest on each such Note
accrued to the date of payment, and the Make-Whole Amount,
if any, due in respect of such payment.
(d) The payment of such Offered Prepayment Amount to
the holders of Notes which shall have accepted such offer
shall be made on the date specified in the notice required
by Section 4.4(b) hereof (or if such day shall not be a
Business Day, on the Business Day most nearly preceding such
date). The Company will comply with the requirements of
Section 4.2(b) hereof with respect to such prepayment.
Section 4.5. Notation of Notes on Prepayment. Upon any partial
prepayment of a Note, the holder of such Note may (but shall not
be required to), at its option,
(a) surrender such Note to the Company pursuant to
Section 5.2 hereof in exchange for a new Note in a principal
amount equal to the principal amount remaining unpaid on the
surrendered Note,
(b) make such Note available to the Company for
notation thereon of the portion of the principal so prepaid,
or
(c) xxxx such Note with a notation thereon of the
portion of the principal so prepaid.
In case the entire principal amount of any Note is prepaid, such
Note shall be surrendered to the Company for cancellation and
shall not be reissued, and no Note shall be issued in lieu of
the prepaid principal amount of any Note.
Section 4.6. No Other Prepayments; Acquisition of Notes. Except
for prepayments made in accordance with this Section 4, the
Company may not make any prepayment of principal in respect of
the Notes. The Company will not, nor will it permit any
Subsidiary or any Affiliate to, directly or indirectly, acquire
or make any offer to acquire any Notes unless the Company or such
Subsidiary or Affiliate shall have offered to acquire Notes, pro
rata, from all holders of the Notes upon the same terms. In case
the Company acquires any Notes, such Notes will thereafter be
cancelled and no Notes will be issued in substitution therefor.
Section 4.7. Letter Agreement Prepayments. The Company will
from time to time make such offer or offers to prepay the Notes
(and will prepay such Notes to the extent that the holder or
holders thereof accept such offer or offers), in each case as
provided for in that certain Letter Agreement dated the Closing
Date among the Company, the Purchasers, Xxxxx Xxxxxx and the
Parent Corporation.
Section 5. Registration; Exchange; Substitution of Notes.
Section 5.1. Registration of Notes. The Company will keep at
its office, maintained pursuant to Section 6.3 hereof, a register
for the registration and transfer 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. The Person in whose name
any Note shall be registered shall be deemed and treated as the
owner and holder thereof for ail purposes hereof, and the Company
shall not be affected by any notice or knowledge to the contrary.
Section 5.2. Exchange of Notes.
(a) Exchange of Notes. Upon surrender of any Note at
the office of the Company maintained pursuant to Section 6.3
hereof duly endorsed or accompanied by a written instrument of
transfer duly executed by the registered holder of such Note or
such holder's attorney duly authorized in writing, the Company will
execute and deliver, at the Company's expense (except as provided
below), new Notes in exchange therefor, in an aggregate principal
amount equal to the unpaid principal amount of the surrendered
Note. Each such new Note shall be payable to such Person as such
holder may request and shall be substantially in the form of
Exhibit A hereto. 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 Two Hundred Thousand Dollars ($200,000) provided that a
holder of Notes may transfer its entire holding of Notes
regardless of the principal amount of such holder's Notes. 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
representations set forth in Section 1.3.
(b) Costs. The Company will pay the cost of delivering
to or from such holder's home office or custodian bank from or to
the Company, insured to the reasonable satisfaction of such holder,
the surrendered Note and any Note issued in substitution or
replacement for the surrendered Note.
(c) Actions of Noteholder. Each holder of Notes agrees
that in the event it shall sell or transfer any Note without
surrendering such Note to the Company as set forth in Section
5.2(a) hereof, it shall
(i) prior to the delivery of such Note make a notation
thereon of all principal, if any, prepaid on such Note and
shall also indicate thereon the date to which interest shall
have been paid on such Note, and
(ii) promptly notify the Company of the name and
address of the transferee of any such Note so transferred
and the effective date of such transfer.
(d) Compliance with Securities Laws. Each holder of Notes
agrees that each sale or transfer of Notes made by it shall be
made in compliance with all applicable securities laws.
Section 5.3. 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 (or of
ownership by such institutional investor's nominee) and such
loss, theft, destruction or mutilation), and
(a) in the case of loss, theft or destruction, of
indemnity reasonably satisfactory to the Company (provided
that if the holder of such Note is an institutional investor
or a nominee of an institutional investor, such holder'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 will 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.
Section 5.4. Issuance Taxes. The Company will pay all taxes (if
any) due in connection with and as the result of the initial
issuance and sale of the Notes and in connection with any
modification of this Agreement or the Notes and shall save each
holder of Notes harmless without limitation as to time against
any and all liabilities with respect to all such taxes.
Section 6. Covenants.
The Company covenants that on and after the Closing Date and
so long as any of the Notes shall be outstanding:
Section 6.1. Payment of Taxes and Claims. The Company will, and
will cause each Subsidiary to, pay before they become delinquent,
(a) all taxes, assessments and governmental charges or
levies imposed upon it or its Property, and
(b) all claims or demands of materialmen, mechanics,
carriers, warehousemen, vendors, landlords and other like Persons
that, if unpaid, might result in the creation of a Lien upon its
Property,
provided, that items of the foregoing description need not be
paid so long as
(i) such items are being actively contested in good
faith and by appropriate proceedings,
(ii) adequate book reserves have been established and
maintained with respect thereto, and
(iii) such items, in the aggregate, could not reasonably
be expected to have a Material Adverse Effect.
Section 6.2 Maintenance of Properties; Corporate Existence;
Etc. The Company will, and will cause each Material Subsidiary
to:
(a) Property - maintain its Property in a condition
sufficient to permit its ordinary operation, ordinary wear
and tear and obsolescence excepted, and make all necessary
renewals, replacements, additions, betterments and
improvements thereto, 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 could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect;
(b) Insurance - maintain, with financially sound and
reputable insurers, insurance with respect to its Property
and business against such casualties and contingencies, of
such types and in such amounts (including self-insurance, if
adequate reserves are maintained with respect thereto) as is
customary in the case of corporations of established
reputations engaged in the same or a similar business and
similarly situated;
(c) Financial Records - keep accurate and complete
books of records and accounts that permit the provision of
accurate and complete financial statements in accordance
with GAAP;
(d) Corporate Existence and Rights - do or cause to be
done all things necessary to preserve and keep in full force
and effect its corporate existence, rights (charter and
statutory) and franchises, except where the failure to do
so, in the aggregate, could not reasonably be expected to
have a Material Adverse Effect; and
(e) Compliance with Law - not be in violation of any
law, ordinance or governmental rule or regulation to which
it is subject (including, without limitation, any
Environmental Protection Law) and not fail to obtain any
license, certificate, permit, franchise or other
governmental authorization necessary to the ownership of its
Properties or to the conduct of its business if such
violations or failures to obtain, in the aggregate, could
reasonably be expected to have a Material Adverse Effect or,
in the aggregate, a material adverse effect on the ability
of the Company or any Material Subsidiary to conduct in the
future the business it conducts at the time of such
violation or failure to obtain.
Section 6.3. Payment of Notes and Maintenance of Office. The
Company will punctually pay, or cause to be paid, the principal
of and interest (and Make-Whole Amount, if any) on, the Notes, as
and when the same shall become due according to the terms hereof
and of the Notes, and will maintain an office at the address of
the Company set forth in Section 10.1 hereof where notices,
presentations and demands in respect hereof or the Notes may be
made upon it. Such office will be maintained at such address
until such time as the Company shall notify the holders of the
Notes of any change of location of such office, which will in any
event be located within the United States of America.
Section 6.4. Merger; Acquisition.
(a) Merger and Consolidation. The Company will not
merge into or consolidate with, or sell, lease, transfer or
otherwise dispose of all or substantially all of its Property to,
any other Person or permit any other Person to consolidate with or
merge into it; provided that the foregoing restriction does not apply
to the merger or consolidation of the Company with, or the sale,
lease, transfer or other disposition by the Company of all or
substantially all of its Property to, another corporation, if:
(i) the corporation that results from such merger or
consolidation or that purchases, leases, or acquires all or
substantially all of such Property (the "Successor
Corporation") is organized under the laws of the United
States of America or any jurisdiction thereof;
(ii) the due and punctual payment of the principal of
and Make-Whole Amount, if any, and interest on all of the
Notes, according to their tenor, and the due and punctual
performance and observance of all the covenants in the Notes
and this Agreement to be performed or observed by the
Company, are expressly assumed by the Successor Corporation
pursuant to such agreements and instruments with respect to
such assumption as shall be approved by the Required
Holders, and the Company causes to be delivered to each
holder of Notes an opinion of independent counsel
satisfactory to the Required Holders to the effect that such
agreements and instruments are enforceable in accordance
with their terms and the terms hereof;
(iii) the Notes rank at least pari passu with all other
Indebtedness of the Successor Corporation (provided that
this Section 6.4(a)(iii) shall not prohibit the existence of
Indebtedness secured by Liens that do not violate Section
6.5 hereof); and
(iv) immediately prior to, and immediately after the
consummation of the transaction, and after giving effect
thereto, no Default or Event of Default would exist under
any provision hereof.
(b) Acquisition of Stock. The Company will not acquire any
stock of any corporation or equity interest in any other Person if
upon completion of such acquisition such Person would be a Subsidiary,
or acquire all of the Property of, or such of the Property as would
permit the transferee to continue any one or more integral business
operations of, any Person unless, immediately after the consummation
of such acquisition, and after giving effect thereto, no Default or Event
of Default exists or would exist under any provision hereof.
Section 6.5. Liens.
(a) Negative Pledge. The Company will not, and will not
permit any Subsidiary to, cause or permit to exist, or agree or
consent to cause or permit to exist in the future (upon the
happening of a contingency or otherwise), any of their Property,
whether now owned or hereafter acquired, to be subject to a Lien
except:
(i) Taxes, Etc. - Liens securing taxes, assessments or
governmental charges or levies or the claims or demands of
materialmen, mechanics, carriers, warehousemen, landlords
and other like Persons, provided that the payment thereof is
not required by Section 6.1 hereof;
(ii) Court Proceeding - Liens arising from judicial
attachments and judgments, securing appeal bonds or
supersedeas bonds, or arising in connection with pending
court proceedings (including, without limitation, surety
bonds and letters of credit or any other instrument serving
a similar purpose), provided that, in the case of any such
Liens arising from any judicial attachment and judgment,
such judgment is discharged within 30 days after the entry
of the same or 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 provided further that the
aggregate amount so secured (minus the amount of insurance
that is available to pay such amounts and over which no
dispute regarding coverage has occurred or is threatened)
will not at any time exceed six percent (6%) of Consolidated
Shareholders' Equity;
(iii) Ordinary Course Business Liens - Liens incurred or
deposits made in the ordinary course of business
(A) in connection with workers' compensation,
unemployment insurance, social security and other like
laws, and
(B) to secure the performance of letters of
credit, bids, tenders, sales contracts, leases,
statutory obligations, surety and performance bonds (of
a type other than set forth in Section 6.5(a)(ii)
hereof) and other similar obligations
not incurred in connection with the borrowing of money,
the obtaining of advances or the payment of the
deferred purchase price of Property;
(iv) Real Property Liens - Liens in the nature of
reservations, exceptions, encroachments, easements,
rights-of-way, covenants, conditions, restrictions, leases
and other similar title exceptions or encumbrances affecting
real property, provided that such exceptions and
encumbrances do not in the aggregate materially detract from
the value of said Properties or materially interfere with
the use of such Property in the ordinary conduct of the
business of the Company and the Subsidiaries;
(v) Closing Date Liens -
(A) Liens in existence on the Closing Date and
described on Part 6.5 of Annex 3 hereto, and
(B) Liens securing renewals, extensions (as to
time) and refinancings of Indebtedness secured by the
Liens described on Part 6.5 Annex 3 hereto, provided
that 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 none of such Liens is
extended to include any additional Property of the
Company or any Subsidiary;
(vi) Intergroup Liens - Liens on Property of a
Subsidiary, provided that such Liens secure only obligations
owing to the Company or a Wholly-Owned Subsidiary;
(vii) Purchase Money Lien - Purchase Money Liens,
provided that, after giving effect thereto and to any
concurrent transactions, no Default or Event of Default
would exist under any provision hereof;
(viii) Refinanced Purchase Money Liens - Liens renewing,
extending or replacing Liens permitted by clause (vii)
above, provided that all of the following conditions are
satisfied:
(i) no such new Lien shall extend to any property
of the Company or any Subsidiary other than property
already encumbered by the existing Lien being so
renewed, extended or replaced,
(ii) the principal amount of the underlying
obligation secured by such existing Lien outstanding at
the time of such renewal, extension or replacement
shall not be increased in connection with such renewal,
extension or replacement, and
(iii) immediately after such renewal, extension or
refunding no Default or Event of Default shall exist;
and
(ix) Basket Lien - Liens ("Basket Liens") not otherwise
permitted by clause (i) through clause (viii), inclusive, of
this Section 6.5(a) provided that the Company will not at
any time permit the sum, without duplication, of
(A) the aggregate amount of Indebtedness ("Basket
Secured Debt") secured by Basket Liens, plus
(B) Combined Subsidiary Funded Debt minus the
aggregate amount of Closing Date Subsidiary Debt,
determined in each case at such time, to exceed twenty
percent (20%) of Consolidated Tangible Net Worth determined
as of the end of the then most recently ended fiscal quarter
of the Company.
Nothing in this Section 6.5 shall be construed to permit the
incurrence or existence of any Indebtedness not otherwise
permitted by this Agreement.
(b) Equal and Ratable Lien; Equitable Lien. In case
any Property shall be subjected to a Lien in violation of this
Section 6.5, the Company will forthwith make or cause to be made,
to the fullest extent permitted by applicable law, provision
whereby the Notes will be secured equally and ratably with all
other obligations secured thereby pursuant to such agreements and
instruments as shall be approved by the Required Holders, and the
Company will cause to be delivered to each holder of a Note an
opinion of independent counsel satisfactory to the Required
Holders to the effect that such agreements and instruments are
enforceable in accordance with their terms, and in any such case
the Notes shall have the benefit, to the full 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. Such violation of this
Section 6.5 will constitute an Event of Default hereunder,
whether or not any such provision is made pursuant to this
Section 6.5(b).
(c) Financing Statements. The Company will not, and
will not permit any Subsidiary to,sign or file a financing statement
under the Uniform Commercial Code of any jurisdiction that names
the Company or such Subsidiary as debtor, or sign any security
agreement authorizing any secured party thereunder to file any
such financing statement, except, in any such case, a financing
statement filed or to be filed to perfect or protect a security
interest that the Company or such Subsidiary is entitled to
create, assume or incur, or permit to exist, under the provisions
of Section 6.5(a) or to evidence for informational purposes a
lessor's interest in Property leased to the Company or any such
Subsidiary.
Section 6.6. Consolidated Tangible Net Worth. The Company will
not, at any time, permit Consolidated Tangible Net Worth to be
less than the sum of (i) Three Hundred Fifty Million Dollars
($350,000,000) plus (ii) an aggregate amount equal to 25% of the
Consolidated Net Income (but, in each case, only if a positive
number) on a cumulative basis for each completed fiscal year
beginning with the fiscal year ending December 31, 2002.
Section 6.7. Funded Debt. The Company will not at any time
permit Consolidated Funded Debt to be greater than ninety percent
(90%) of Consolidated Shareholders' Equity, determined in each
case at such time.
Section 6.8. Transfer of Property. The Company will not, and
will not permit any Subsidiary, to sell, lease as lessor,
transfer or otherwise dispose of Property (including, without
limitation, Subsidiary Stock but excluding, in any case, any
capital stock of the Company) (each such transaction a
"Transfer") provided that the foregoing restriction does not
apply to a Transfer of Property if:
(a) Ordinary Course Transfers - such Property
constitutes inventory held for sale, or obsolete equipment,
fixtures and supplies, and in each case is Transferred in
the ordinary course of business (an "Ordinary Course
Transfer");
(b) Basket Transfers - such Property is Transferred
(the date of the Transfer of such Property referred to as
the "Property Disposition Date") to a Person other than an
Affiliate, such Transfer is not an Ordinary Course Transfer,
an Intergroup Transfer, a Merger Transfer, a Reinvested
Transfer, a Prepayment Transfer or a Noteholder Approved
Transfer (such transfers collectively referred to as
"Excluded Transfers"), and all of the following conditions
shall have been satisfied with respect thereto,
(i) the sum of
(A) the Disposition Value of such Property,
plus
(B) the Disposition Value of all other
Property Transferred by the Company and the
Subsidiaries during the three hundred sixty-five
(365) day period ending on and including such
Property Disposition Date (excluding therefrom
Excluded Transfers occurring during such period),
does not exceed twenty percent (20%) of Consolidated
Total Assets determined as of the end of the then most
recently ended fiscal quarter of the Company,
(ii) the sum of
(A) the Disposition Value of such Property,
plus
(B) the Disposition Value of all other
Property Transferred by the Company and the
Subsidiaries during the period beginning on the
Closing Date and ending on such Property
Disposition Date, inclusive, (excluding therefrom
Excluded Transfers occurring during such period),
does not exceed thirty percent (30%) of Consolidated
Total Assets determined as of the end of the then most
recently ended fiscal quarter of the Company,
(iii) in the good faith opinion of the board of
directors of the Company, the Transfer is for Fair
Market Value and is in the best interests of the
Company, and
(iv) immediately before and immediately after the
consummation of the transaction, and after giving
effect thereto, no Default or Event of Default exists
or would exist under any provision hereof;
(c) Intergroup Transfers - such Transfer is from a
Subsidiary to the Company or a Wholly-Owned Subsidiary (an
"Intergroup Transfer");
(d) Merger-Related Transfers - such Transfer meets the
requirements of 6.4 hereof (a "Merger Transfer");
(e) Reinvested Transfers - such Transfer shall satisfy
each of the following conditions (upon the satisfaction of
all of the conditions set forth in this Section 6.8(e) such
Transfer shall be a "Reinvested Transfer" and such Transfer
shall be deemed to have occurred on the date of the
satisfaction of all of such conditions),
(i) the Company will deliver a written notice to
each holder of Notes contemporaneously with the
consummation of the Transfer in which the Company will
(A) identify such Property,
(B) state the nature and terms of the
transaction and the nature and use of the proceeds
of the transaction, and
(C) state that, within three hundred and
sixty-five (365) days following the consummation
of such Transfer, the entire proceeds of such
Transfer (or such portion thereof which have not
been used during said period pursuant to subclause
(f) below or otherwise allocated by the Company to
Section 6.8(b) above), net of reasonable and
ordinary transaction costs and expenses incurred
in connection with such Transfer and any
Indebtedness required by its terms to be repaid in
connection with such Transfer, shall be applied to
the acquisition by the Company or any Subsidiary
of operating assets or equity securities of a
Person which will become a Subsidiary and which
owns operating assets and which operating assets
will be used in the ordinary course of business of
the Company and the Subsidiaries, and
(ii) the proceeds of such Transfer shall have been
applied as described in such written notice;
(f) Prepayment Transfer - an amount up to the Net
Transfer Proceeds of such Transfer shall have been offered
to prepay the Notes pursuant to, and to the extent provided
for, in Section 4.4 hereof, the Company shall have complied
with all of the requirements of Section 4.4 hereof with
respect thereto, and the amount of the Notes required to be
prepaid pursuant to Section 4.4 hereof as a result of such
offer shall have been paid in accordance therewith (upon the
satisfaction of the all of the conditions set forth in this
Section 6.8(f) such Transfer shall be a "Prepayment
Transfer" and such Transfer shall be deemed to have occurred
on the date of the satisfaction of all of such conditions);
or
(g) Noteholder Approved Transfers - such Transfer
shall satisfy each of the following conditions (upon the
satisfaction of the all of the conditions set forth in this
Section 6.8(g) such Transfer shall be a "Noteholder Approved
Transfer" and such Transfer shall be deemed to have occurred
on the date of the satisfaction of all of such conditions),
(i) the Company will deliver a written instrument
to each holder of Notes not more than sixty (60) days
or less than thirty (30) days prior to the consummation
of such Transfer in which the Company will
(A) identify such Property, and
(B) state the nature and terms of the
transaction (including, without limitation, a
description of the consideration payable by the
purchaser) and the nature and use of the proceeds
of the transaction,
(ii) provide pro forma financial statements
covering at least the then succeeding two (2) fiscal
years giving effect to such Transfer, the use of the
proceeds thereof and any contemporaneous transactions,
(iii) immediately before and immediately after the
consummation of the transaction, and after giving
effect thereto, no Default or Event of Default exists
or would exist under any provision hereof other than
under Section 6.8(b) hereof,
(iv) in the good faith opinion of the board of
directors of the Company, the Transfer is for Fair
Market Value and is in the best interests of the
Company,
(v) the Transfer will not be likely, in the
reasonable judgment of the Required Holders, to have a
Material Adverse Effect at the time of the consummation
thereof or at any time thereafter, and
(vi) the Required Holders shall have consented in
writing to such Transfer (including, without
limitation, the consideration therefor), prior to the
consummation thereof, which consent shall not be
unreasonably withheld or delayed.
Section 6.9. Subsidiary Debt.
(a) Subsidiary Debt. The Company will not permit any
Subsidiary to create, assume, incur, or otherwise become
obligated with respect to any Funded Debt, except:
(i) Funded Debt outstanding on the Closing Date and
described on Part 6.9 of Annex 3 hereto (the "Closing Date
Subsidiary Debt"); and
(ii) Funded Debt (including, without limitation,
extensions, renewals and refundings of Closing Date
Subsidiary Debt), if immediately after giving effect to such
transaction, the sum (without duplication) of
(A) the aggregate amount of Basket Secured Debt,
plus
(B) Combined Subsidiary Funded Debt minus the
aggregate amount of Closing Date Subsidiary Debt,
determined at such time does not exceed twenty percent (20%)
of Consolidated Tangible Net Worth determined as of the end
of the then most recently ended fiscal quarter of the
Company.
(b) New Subsidiaries. Each Person which becomes a Subsidiary
after the Closing Date will be deemed to have incurred all
Indebtedness of such Person on the date such Person becomes a
Subsidiary.
(c) Disposition of Subsidiary Indebtedness. Each Subsidiary
any of whose outstanding Indebtedness is at any time sold,
transferred or otherwise disposed of by the Company or another
Subsidiary shall be deemed to have incurred such Indebtedness,
and all Liens securing such Indebtedness (if any), at the time of
such sale, transfer or other disposition.
Section 6.10. ERISA.
(a) Compliance. The Company will, and will cause each
ERISA Affiliate to, at all times with respect to each Pension Plan,
make timely payment of contributions required to meet the minimum
funding standard set forth in ERISA or the IRC with respect
thereto, and to comply with all other applicable provisions of
ERISA. The Company will, and will cause each Subsidiary to, at
all times with respect to each Foreign Pension Plan, maintained
by any of them, comply with all laws of any Governmental
Authority with jurisdiction over such Foreign Pension Plans.
(b) Prohibited Actions. The Company will not, and will
not permit any ERISA Affiliate to:
(i) engage in any "prohibited transaction" (as such
term is defined in section 406 of ERISA or section 4975 of
the IRC) or "reportable event" (as such term is defined in
section 4043 of ERISA) that could result in the imposition
of a tax or penalty;
(ii) incur with respect to any Pension Plan any
"accumulated funding deficiency" (as such term is defined in
section 302 of ERISA), whether or not waived;
(iii) terminate any Pension Plan in a manner that could
result in the imposition of a Lien on the Property of the
Company or any Subsidiary pursuant to section 4068 of ERISA
or the creation of any liability under section 4062 of
ERISA;
(iv) fail to make any payment required by section 515
of ERISA; or
(v) incur any withdrawal liability under Title IV of
ERISA with respect to any Multiemployer Plan or any
liability resulting from the termination of any
Multiemployer Plan;
if the aggregate amount of the taxes, penalties, funding
deficiencies, interest, amounts secured by Liens, and other
liabilities in respect of any of the foregoing at any time
exceed, in the aggregate, more than three percent (3%) of
Consolidated Shareholders' Equity at such time.
Section 6.11. Line of Business.
The Company will at all times cause,
(a) the amount of revenues of the Company and the
Subsidiaries derived from Permitted Lines of Business to be
at least sixty-six and two-thirds percent (66 2/3%) of the
amount of all revenues of the Company and the Subsidiaries,
determined in each case for the then most recently ended
period of twelve (12) fiscal months on a consolidated basis,
or
(b) the net book value of assets of the Company and
the Subsidiaries used in Permitted Lines of Business to be
at least sixty-six and two-thirds percent (66 2/3%) of the
amount of the net book value of all assets of the Company
and the Subsidiaries, in each case determined as of the end
of then most recently ended calendar month on a consolidated
basis.
Section 6.12. Transactions with Affiliates. The Company will
not, and will not permit any Subsidiary to, enter into any
transaction, including, without limitation, the purchase, sale or
exchange of Property or the rendering of any service, with any
Affiliate, except in the ordinary course of and 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 obtained in a
comparable arm's-length transaction with a Person not an
Affiliate; provided that the Permitted Affiliate Transactions
shall not be required to comply with the provisions of this
Section 6.12, and provided, further, that the price per share of
the Company's common stock that will be utilized for determining
the number of shares of common stock of the Company which will be
issued by the Company to the Parent Corporation pursuant to, and
at the closing of, the Permitted Affiliate Transactions will be
at a price per share equal to eighty-eight percent (88%) of the
average of the closing price per share of the Company's common
stock on the American Stock Exchange for the ten trading days
immediately preceding the determination of such price by the
Board of Directors of the Company on October 2, 2002 and the
maximum aggregate number of shares of common stock of the Company
which will be issued to the Parent Corporation pursuant to, and
at the closing of, the Permitted Affiliate Transactions will be
no greater than the number of shares of common stock of the
Company transferred to the Company by the Parent Corporation as a
part of said transaction.
Section 6.13. Guaranties. Neither the Company nor any Subsidiary
will become liable for, or permit any of its Property to become
subject to, any Guaranty, unless:
(a) the maximum dollar amount of the obligation being
guaranteed is readily ascertainable by the terms of such
obligation, or the agreement or instrument evidencing such
Guaranty specifically limits the dollar amount of the
maximum exposure of the guarantor thereunder; and
(b) after giving effect thereto and to any concurrent
transactions, no Default or Event of Default exists or would exist
under any provision hereof.
Section 6.14. Private Offering. The Company will not, and will
not permit any Person acting on its behalf to, offer the Notes or
any part thereof or any similar Securities for issue or sale to,
or solicit any offer to acquire any of the same from, any Person
so as to bring the issuance and sale of the Notes within the
provisions of section 5 of the Securities Act.
Section 6.15. Restricted Payments. (a) The Company will not at
any time, declare or make, or incur any liability to declare or
make, any Restricted Payments unless immediately after giving
effect to such action: (i) the aggregate amount of Restricted
Payments of the Company declared or made during the period
commencing on January 1, 2002 and ending on the date such
Restricted Payment is declared or made, inclusive, would not
exceed the sum of (A) $10,000,000, plus (B) 50% of Consolidated
Adjusted Net Income for such period (or minus 100% of
Consolidated Adjusted Net Income for such period if Consolidated
Adjusted Net Income for such period is a loss), plus (C) the
aggregate amount of Net Proceeds of Capital Stock for such
period; and (ii) no Default or Event of Default would exist.
(b) The Company will not authorize a Restricted Payment
that is not payable within 60 days of the authorization of such
Restricted Payment.
Section 6.16. Interest Charge Coverage Ratio. The Company will
not permit the Interest Charge Coverage Ratio, as of the end of
each fiscal quarter, to be less than 2.00 to 1.00; provided,
however, that the Company shall be permitted on two occasions
under the provisions of this Section 6.16 to fail to meet such
Interest Charge Coverage Ratio (and no Default or Event of
Default shall exist on account thereof) so long as the Company
shall have been in compliance with the provisions of this Section
6.16 at the end of the immediately preceding fiscal quarter.
Section 6.17. Limitation on Investments. Except for the
Permitted Affiliate Transactions (including, without limitation,
the Investment by the Company in the "earnout agreement" referred
to in Annex 4 hereto), the Company will not, and will not permit
any Subsidiary to, make or hold any Investment in any Person
which is a member of the Xxxxxx Group (excluding from the
definition of "Xxxxxx Group" for purposes of this sentence the
Company and its Subsidiaries), provided that, the foregoing
notwithstanding, the Company or any Subsidiary, as the case may
be, may advance travel expenses and other business-related
expenses incurred or to be incurred, in each case, in the
ordinary course of business to any individual which is a member
of the Xxxxxx Group and an officer, director or employee of the
Company or any Subsidiary if the aggregate outstanding amount of
all such advances to all such individuals shall not at any time
exceed $50,000. The Company will not Transfer, and will not
permit any Subsidiary to issue, any Subsidiary Stock to any
member of the Xxxxxx Group (excluding from the definition of
"Xxxxxx Group" for purposes of this sentence the Company and its
Subsidiaries).
Section 7. Information as to Company.
Section 7.1. Financial and Business Information. The Company
shall deliver to each holder of Notes:
(a) Quarterly Statements - as soon as practicable
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), and in any event within
sixty (60) days thereafter, duplicate copies of,
(i) consolidated balance sheet of the Company and
its consolidated 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 consolidated 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 as complete and correct, subject to changes
resulting from year-end adjustments, by a Senior Financial
Officer, and accompanied by the certificate required by
Section 7.2 hereof; provided, that delivery of copies of the
Company's Quarterly Report on Form 10-Q filed with the
Securities and Exchange Commission within the time period
specified above shall be deemed to satisfy the requirements
of this Section 7.1(a) so long as such Quarterly Report
contains or is accompanied by the information specified in
this Section 7.1(a);
(b) Annual Statements - as soon as practicable after
the end of each fiscal year of the Company, and in any event within
one-hundred (100) days thereafter, duplicate copies of,
(i) a consolidated and consolidating balance sheet of
the Company and its consolidated subsidiaries as at the end
of such year, and
(ii) a consolidated and consolidating statement of
income of the Company and its consolidated subsidiaries for
such year and consolidated statements of changes in
shareholders' equity and cash flows of the Company and its
consolidated subsidiaries for such year,
setting forth in the case of each consolidated financial
statement, in comparative form, the figures for the previous
fiscal year, all in reasonable detail, prepared in accordance
with GAAP, and accompanied by
(A) (i) in the case of the consolidated financial
statements of the Company and its consolidated
subsidiaries, an opinion thereon of independent
certified public accountants of recognized national
standing, which opinion shall, without qualification
(including, without limitation, qualifications related
to the scope of the audit or the ability of the Company
or a subsidiary thereof to continue as a going
concern), 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, and
(ii) in the case of such consolidating statements,
a statement from such independent certified public
accountants that such statements were prepared using
the same work papers as were used in the preparation of
such consolidated statements of the Company and its
consolidated subsidiaries,
(B) a certification by a Senior Financial Officer that
such consolidated, and consolidating statements are complete
and correct, and
(C) the certificates required by Section 7.2 hereof,
provided, that the delivery 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) filed with the Securities and
Exchange Commission within the time period specified above shall
be deemed to satisfy the requirements of this Section 7.1(b) so
long as such Annual Report contains or is accompanied by the
opinions and other information otherwise specified in this
Section 7.1(b);
(c) SEC and Other Reports - promptly upon their
becoming available one copy of each financial statement, report,
notice or proxy statement sent by the Company or any Subsidiary to
stockholders generally, and of each regular or periodic report
and any registration statement, prospectus or written
communication, and each amendment thereto, in respect thereof
filed by the Company or any Subsidiary with, or received by, such
Person in connection therewith from, the National Association of
Securities Dealers, any securities exchange or the Securities and
Exchange Commission or any successor agency;
(d) Notice of Default or Event of Default - immediately,
and in any event within three (3) days, upon becoming aware of the
existence of any condition or event which constitutes a Default
or an 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) Notice of Claimed Default - immediately, and in any
event within three (3) days, upon becoming aware that the holder of
any Note, or of any Indebtedness or other Security of the Company
or any Subsidiary, shall have given notice or taken any other action
with respect to a claimed Default, Event of Default or default or
event of default, a written notice specifying the notice given or
action taken by such holder and the nature of the claimed
Default, Event of Default or default or event of default and what
action the Company is taking or proposes to take with respect
thereto;
(f) ERISA - (i) immediately upon becoming aware of the
occurrence of any "reportable event" (as such term is defined in
section 4043 of ERISA) or "prohibited transaction" (as such term
is defined in section 406 of ERISA or section 4975 of the IRC) in
connection with any Pension Plan or any trust created thereunder,
a written notice specifying the nature thereof, what action the
Company is taking or proposes to take with respect thereto, and,
when known, any action taken by the Internal Revenue Service, the
Department of Labor or the PBGC with respect thereto; and
(ii) prompt written notice of and, where applicable, a
description of
(A) any notice from the PBGG in respect of the
commencement of any proceedings pursuant to
section 4042 of ERISA to terminate any Pension Plan or
for the appointment of a trustee to administer any
Pension Plan,
(B) any distress termination notice delivered to
the PBGC under section 4041 of ERISA in respect of any
Pension Plan, and any determination of the PBGC in
respect thereof,
(C) the placement of any Multiemployer Plan in
reorganization status under Title IV of ERISA,
(D) any Multiemployer Plan becoming "insolvent"
(as such term is defined in section 4245 of ERISA)
under Title IV of ERISA, and
(E) the whole or partial withdrawal of the
Company or any ERISA Affiliate from any Multiemployer
Plan and the withdrawal liability incurred in
connection therewith,
provided that the Company shall not be required to deliver any
such notice at any time when the aggregate amount of the actual
or potential liability of the Company and the Subsidiaries in
respect of all such events is at such time less than two percent
(2%) of Consolidated Shareholders' Equity determined at such
time; and
(g) Requested Information - with reasonable promptness,
such other data and information as from time to time may be requested
by any holder of Notes, including, without limitation,
(i) a copy of each report submitted to the Company or
any Subsidiary by independent accountants in connection with
any annual, interim or special audit made by them of the
books of the Company or any Subsidiary;
(ii) copies of any statement, report or certificate
furnished to any holder of Indebtedness of the Company or
any Subsidiary; and
(iii) information requested to comply with 17 C.F.R.
230.144A, as amended, from time to time.
Section 7.2. Officers' Certificates. Each set of financial
statements delivered to each 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 6.5
through Section 6.9 and Section 6.15 through Section 6.17 hereof,
inclusive, during the period covered by the financial statement
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 a
summary of payments, if any, received under the "earnout
agreement" referred to in Annex 4 hereto pursuant to the
Permitted Affiliate Transactions and the number of shares of
common stock of the Company issued to the Parent Corporation
pursuant to such agreement and the valuation assigned to such
shares); and
(b) Event of Default - a statement that the signers
have reviewed the relevant terms hereof and have made, or caused
to be made, under their supervision, a review of the transactions
and conditions of the Company and the Subsidiaries from the beginning
of the accounting period covered by the income statements being
delivered therewith to the date of the certificate and that such
review shall not have disclosed the existence during such period
of any condition or event that constitutes a Default or an Event
of Default or, if any such condition or event existed or exists,
specifying the nature and period of existence thereof and what
action the Company shall have taken or proposes to take with
respect thereto.
Section 7.3. Permitted Affiliate Transactions. Promptly, but in
no event more than 15 days after the consummation of the
repurchase of the Company's common stock from the Parent
Corporation and the issuance of new common stock of the Company
to the Parent Corporation in the Permitted Affiliate
Transactions, the Company shall deliver to the holders of the
Notes a certificate which shall (i) set forth the valuation
assigned to the shares of the Company's common stock in
connection with the repurchase, (ii) the number of shares held by
the Parent Corporation immediately preceding and immediately
following the transaction, and (iii) state that the terms of the
transaction comply with the requirements set forth in
Section 6.12 and conform in all material respects to the
description of the Permitted Affiliate Transactions. In
addition, promptly, but in no event more than 15 days after the
consummation of the repurchase of the Company's common stock from
the Parent Corporation and the issuance of new common stock of
the Company to the Parent Corporation in the Permitted Affiliate
Transactions, the Company shall deliver to the holders of the
Notes, a copy of the fairness opinion prepared by the financial
advisor to the special committee of the Board of Directors.
Section 7.4. Accountants' Certificates. Each set of annual
financial statements delivered pursuant to Section 7.1(b) shall
be accompanied by a certificate of the accountants who certify
such financial statements, stating that they have reviewed this
Agreement and stating further, whether, in making their audit,
such accountants have become aware of any condition or event that
then constitutes a Default or an Event of Default, and, if such
accountants are aware that any such condition or event then
exists, specifying the nature and period of existence thereof.
Section 7.5. Inspection. The Company will permit the
representatives of each holder of Notes to visit and inspect any
of the 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, employees and independent public accountants
(and by this provision the Company authorizes said accountants to
discuss the finances and affairs of the Company and the
subsidiaries) all at such reasonable times and as often as may be
reasonably requested.
Section 8. Events of Default.
Section 8.1. Nature of Events. An "Event of Default" shall
exist if any of the following occurs and is continuing:
(a) Principal or Make-Whole Amount Payments - the
Company shall fail to make any payment of principal or
Make-Whole Amount on any Note on or before the date such
payment is due;
(b) Interest Payments - the Company shall fail to make
any payment of interest on any Note on or before five (5)
days after the date such payment is due;
(c) Particular Covenant Defaults - the Company shall
fail to perform or observe any covenant contained in
Section 6.6 through Section 6.9 inclusive, Section 6.12,
Section 6.13, Section 6.15 through Section 6.17, inclusive,
Section 7.1(d) or Section 7.1(e) hereof;
(d) Liens - the Company shall fail to perform or
observe any covenant contained in Section 6.5 hereof and
such failure continues for more than five days after such
failure shall first become known to any Senior Officer of
the Company;
(e) Other Defaults - the Company shall fail to comply
with any other provision hereof, and such failure continues
for more than thirty (30) days after such failure shall
first become known to any Senior Officer of the Company;
(f) Warranties or Representations - any warranty,
representation or other statement by or on behalf of the
Company contained herein or in any instrument furnished in
compliance with or in reference hereto shall have been false
or misleading in any material respect when made;
(g) Default on Indebtedness or Other Security.
(i) The Company or any Subsidiary shall fail to make any
payment on any Indebtedness when due (including in the
determination of when a payment is due any applicable grace
periods); or (ii) any one or more of the holders (or a
trustee therefor) of any Indebtedness or Security of the
Company or any Subsidiary, or a portion thereof,
(A) causes such Indebtedness or Security to
become due prior to its stated maturity or prior to its
regularly scheduled date or dates of payment; or
(B) exercises any right to require the Company or
any Subsidiary to repurchase such Indebtedness or
Security from such holder;
provided that no Event of Default shall exist at any time
when the aggregate amount of all obligations in respect of
such Indebtedness and Securities is less than Five Million
Dollars ($5,000,000);
(h) Involuntary Bankruptcy Proceedings. (i) A
receiver, liquidator, custodian or trustee of the Company or
any Material Subsidiary, or of all or any substantial part
of the Property of either, shall be appointed by court order
and such order remains in effect for more than thirty (30)
days; or an order for relief shall be entered with respect
to the Company or any Material Subsidiary, or the Company or
any Material Subsidiary shall be adjudicated a bankrupt or
insolvent; or
(ii) any of the Property of the Company or any Material
Subsidiary shall be sequestered by court order and such
order remains in effect for more than thirty (30) days; or
(iii) a petition shall be filed against the Company or
any Material Subsidiary under any bankruptcy,
reorganization, arrangement, insolvency, readjustment of
debt, dissolution or liquidation law of any jurisdiction,
whether now or hereafter in effect, and shall not be
dismissed within thirty (30) days after such filing;
(i) Voluntary Petitions. The Company or any Material
Subsidiary shall file a petition in voluntary bankruptcy or
seeking relief under any provision of any bankruptcy,
reorganization, arrangement, insolvency, readjustment of
debt, dissolution or liquidation law of any jurisdiction,
whether now or hereafter in effect, or shall consent to the
filing of any petition against it under any such law;
(j) Assignments for Benefit of Creditors, Etc. The
Company or a Material Subsidiary shall make an assignment
for the benefit of its creditors, or admits in writing its
inability, or fails, to pay its debts generally as they
become due, or shall consent to the appointment of a
receiver, liquidator or trustee of the Company or a Material
Subsidiary or of all or any part of the Property of either; or
(k) Undischarged Final Judgments. A final,
non-appealable, judgment or final, non-appealable, judgments
for the payment of money aggregating in excess of Fifty
Thousand Dollars ($50,000) is or are outstanding against one
or more of the Company and the Subsidiaries and any one of
such judgments shall have been outstanding for more than
thirty (30) days from the date of its entry and shall not
have been discharged in full or stayed.
Section 8.2. Default Remedies.
(a) Acceleration on Event of Default.
(i) If any Event of Default specified in
Section 8.1(h), Section 8.1(i) or Section 8.1(j) hereof
shall exist, all of the Notes at the time outstanding shall
automatically become immediately due and payable together
with interest accrued thereon and, to the extent permitted
by law, the Make-Whole Amount at such time with respect to
the principal amount of such Notes, without presentment,
demand, protest or notice of any kind, all of which are
hereby expressly waived, and,
(ii) If any Event of Default other than those in
Section 8.1(h), Section 8.1(i) or Section 8.1(j) hereof
shall exist, the Required Holders may exercise any right,
power or remedy permitted to the holders by law, and shall
have, in particular, without limiting the generality of the
foregoing, the right to declare the entire principal of, and
all interest accrued on, all the Notes then outstanding to
be, and such Notes shall thereupon become, forthwith due and
payable, without any presentment, demand, protest or other
notice of any kind, all of which are hereby expressly
waived, and the Company shall forthwith pay to the holder or
holders of all the Notes then outstanding the entire
principal of, and interest accrued on, the Notes and, to the
extent permitted by law, the Make-Whole Amount at such time
with respect to such principal amount of such Notes.
(b) Acceleration on Payment Default. During the existence
of an Event of Default described in Section 8.1(a) or Section 8.1(b)
hereof, and irrespective of whether the Notes then outstanding
shall have been declared to be due and payable pursuant to
Section 8.2(a)(ii) hereof, any holder of Notes who or which shall
have not consented to any waiver with respect to such Event of
Default may, at his or its option, by notice in writing to the
Company, declare the Notes then held by such holder to be, and
such Notes shall thereupon become, forthwith due and payable
together with all interest accrued thereon, without any
presentment, demand, protest or other notice of any kind, all of
which are hereby expressly waived, and the Company shall
forthwith pay to such holder the entire principal of and interest
accrued on such Notes and, to the extent permitted by law, the
Make-Whole Amount at such time with respect to such principal
amount of such Notes.
(c) Valuable Rights. The Company acknowledges, and the
parties hereto agree, that the right of each holder to maintain
its investment in the Notes free from repayment by the Company
(except as herein specifically provided for) is a valuable right
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.
(d) Other Remedies. During the existence of an Event
of Default and irrespective of whether the Notes then outstanding
shall have been declared to be due and payable pursuant to
Section 8.2(a)(ii) hereof and irrespective of whether any holder
of Notes then outstanding shall otherwise have pursued or be
pursuing any other rights or remedies, any holder of Notes may
proceed to protect and enforce its rights hereunder and under
such Notes by exercising such remedies as are available to such
holder in respect thereof under applicable law, either by suit in
equity or by action at law, or both, whether for specific
performance of any agreement contained herein or in aid of the
exercise of any power granted herein, provided that the maturity
of such holder's Notes may be accelerated only in accordance with
Section 8.2(a) and Section 8.2(b) hereof.
(e) Nonwaiver and Expenses. No course of dealing on
the part of any holder of Notes nor any delay or failure on the part
of any holder of Notes to exercise any right shall operate as a
waiver of such right or otherwise prejudice such holder's rights,
powers and remedies. If the Company shall fail to pay when due
any principal of, or Make-Whole Amount or interest on, any Note,
or shall fail to comply with any other provision hereof, the
Company shall pay to each holder of Notes, to the extent
permitted by law, such further amounts as shall be sufficient to
cover the costs and expenses, including but not limited to
reasonable attorneys' fees, incurred by such holder in collecting
any sums due on such Notes or in otherwise assessing, analyzing
or enforcing any rights or remedies that are or may be available
to it.
Section 8.3. Annulment of Acceleration of Notes. If a
declaration is made pursuant to Section 8.2(a)(ii) hereof, then,
and in every such case, the Required Holders may, by written
instrument filed with the Company within ninety (90) days after
such declaration, rescind and annul such declaration, and the
consequences thereof, provided that at the time such declaration
is annulled and rescinded:
(a) no judgment or decree shall have been entered for
the payment of any moneys due on or pursuant hereto or the
Notes;
(b) all arrears of interest upon all the Notes and all
other sums payable hereunder and under the Notes (except any
principal of, or interest or Make-Whole Amount on, the Notes
which shall have become due and payable by reason of such
declaration under Section 8.2(a)(ii) hereof) shall have been
duly paid; and
(c) each and every other Default and Event of Default
shall have been waived pursuant to Section 10.6 hereof or
otherwise made good or cured;
and provided further that no such rescission and annulment shall
extend to or affect any subsequent Default or Event of Default or
impair any right consequent thereon.
Section 9. Interpretation of This Agreement.
Section 9.1. Terms Defined. As used herein, the following terms
have the respective meanings set forth below or set forth in the
Section hereof following such term:
"Affiliate" means, at any time, a Person (other than a
Subsidiary)
(a) that directly or indirectly through one or more
intermediaries Controls, or is Controlled by, or is under
common Control with, the Company,
(b) that beneficially owns or holds five percent (5%)
or more of any class of the Voting Stock of the Company,
(c) five percent (5%) or more of the Voting Stock (or
in the case of a Person that is not a corporation, five
percent (5%) or more of the equity interest) of which is
beneficially owned or held by the Company or a Subsidiary, or
(d) that is an officer or director (or a member of the
immediate family of an officer or director) of the Company
or any Subsidiary,
at such time. As used in this definition,
"Control" means the possession, directly or indirectly,
of the power to direct or cause the direction of the
management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise.
"Agreement, this" means this Note Purchase Agreement, as it
may be amended and restated from time to time.
"Basket Liens" Section 6.5(a)(ix).
"Basket Secured Debt" Section 6.5(a)(ix)(A).
"Xxxxxx Group" means (i) H. Xxxxx Xxxxxx, Xxxx Xxxxxx, Xx.
(brother of H. Xxxxx Xxxxxx) and the estate of Xxxxxxxx Xxxxxxx
(deceased sister of H. Xxxxx Xxxxxx), (ii) spouses, heirs,
legatees, lineal descendants, and spouses of lineal descendants,
other blood relatives, step-children, adopted children, and/or
estates or representatives of estates of H. Xxxxx Xxxxxx, Xxxx
Xxxxxx, Xx. and Xxxxxxxx Xxxxxxx, (iii) trusts established for
the benefit of spouses, lineal descendants and spouses of lineal
descendants, other blood relatives, step-children, and/or adopted
children of H. Xxxxx Xxxxxx, Xxxx Xxxxxx, Xx., and Xxxxxxxx
Xxxxxxx and (iv) any person which is directly or indirectly
Controlled by a person described in the preceding clauses (i),
(ii) or (iii).
"Business Day" means a day other than a Saturday, a Sunday
or a day on which the bank designated by the holder of a Note to
receive for such holder's account payments on such Note is
required by law (other than a general banking moratorium or
holiday for a period exceeding four (4) consecutive days) to be
closed.
"Capital Lease" means, at any time, a lease with respect to
which the lessee is required to recognize the acquisition of an
asset and the incurrence of a liability at such time.
"Capital Lease Obligation" means, with respect to any Person
and a Capital Lease, the amount of the obligation of such Person
as a lessee under such Capital Lease which would, in accordance
in GAAP, appear as a liability on a balance sheet of such Person.
"Closing Date" Section 1.2(b).
"Closing Date Subsidiary Debt" Section 6.9(a)(i).
"Closing Date Subsidiary Debt" shall include any Funded Debt
that, directly or indirectly, refinances, renews or extends such
Closing Date Subsidiary Debt, provided that the amount of such
Funded Debt does not exceed the outstanding amount of such
Closing Date Subsidiary Debt being so refinanced, renewed or
extended.
"Combined Subsidiary Funded Debt" means, at any time, the
aggregate amount of Subsidiary Funded Debt of all Subsidiaries
determined on a combined basis at such time and excluding the
aggregate amount of Subsidiary Funded Debt owing to the Company.
"Company" has the meaning specified in the introductory
sentence hereof.
"Consolidated Adjusted Net Income" means, with reference to
any period, the Consolidated Net Income for such period after
excluding therefrom the following (to the extent included in the
determination thereof): any extraordinary items; any
discontinued operations or the disposition thereof; any non-cash
charges or credits relating to economic hedging transactions
engaged in by, and specifically limited to, the Company's trading
and milling group, whether or not constituting hedging activities
pursuant to FASB 133; and any non-cash charges or credits
relating to currency adjustments on account of, and specifically
limited to, the Company's Argentinean sugar Subsidiary, Ingenio Y
Refineria San Xxxxxx del Tabacal SRL, in each case, as determined
by GAAP, where applicable.
"Consolidated Funded Debt" means, at any time, the amount of
Funded Debt of the Company, and the amount of Subsidiary Funded
Debt of all Subsidiaries, determined on a consolidated basis at
such time.
"Consolidated Net Income" for any period shall mean the
gross revenues of the Company and its Subsidiaries for such
period less all expenses and other proper charges (including
taxes on income), determined on a consolidated basis in
accordance with GAAP.
"Consolidated Shareholders' Equity" means, at any time,
(a) the amount of shareholders' equity of the Company
and the Subsidiaries (but excluding, without limitation, all
Preferred Stock other than perpetual Preferred Stock and, to
the extent included therein, minority interest), minus
(b) (i) the Restricted Basket Transfer Proceeds
Amount, plus
(ii) the Restricted Subsidiary Net Worth Amount,
all determined on a consolidated basis at such time.
"Consolidated Tangible Net Worth" means, at any time, the
amount equal to
(a) the sum of
(i) the par value or stated value (as the case
may be) at such time of all authorized, issued and
outstanding capital stock of the Company and the
Subsidiaries (excluding capital stock held in
treasury), plus (or minus in each case of a deficit),
(ii) the amount of the paid-in capital and
retained earnings at such time of the Company and the
Subsidiaries, plus
(iii) the amount of Unamortized Tax Incentive
Grants and Tax Incentive Financings, plus
(iv) the amount of the IRC 447(i) Suspense Account
Amount,
minus
(b) (i) the net book value (after deducting related
depreciation, obsolescence, amortization, valuation and
other proper reserves) of all Intangible Assets of the
Company and the Subsidiaries, plus
(ii) the Restricted Basket Transfer Proceeds Amount,
plus
(iii) the Restricted Subsidiary Net Worth Amount,
all determined on a consolidated basis at such time. As used in
this definition,
"Intangible Assets," with respect to any Person, means
the following:
(a) deferred assets (including, without
limitation, insurance and prepaid taxes), other than
prepaid expenses which are refundable;
(b) patents, copyrights, trademarks, trade names,
service marks, brand names, franchises, goodwill,
experimental expenses and other similar intangibles;
(c) unamortized debt discount and expense; and
(d) all other Property which would be considered
to be intangible under generally accepted accounting
principles.
"IRC 447(i) Suspense Account Amount" means, at any
time, the amount included in deferred tax liabilities on a
consolidated balance sheet of the Company and the
Subsidiaries prepared in accordance with GAAP at such time
in respect of deferred tax liabilities incurred in
connection with section 447(i) of the IRC.
"Unamortized Tax Incentive Grants and Tax Incentive
Financings" means, at any time, the amount included in
liabilities on a consolidated balance sheet of the Company
and the Subsidiaries prepared in accordance with GAAP at
such time in respect of all monies granted by political
subdivisions as contractual concessions for economic
development by the Company or its Subsidiaries in such
political subdivisions.
"Consolidated Total Assets" means, at any time, an amount
equal to the net book value (net of related depreciation,
obsolescence, amortization, valuation, and other proper reserves)
of all assets of the Company and the Subsidiaries minus the
amount of minority interest of the Company and the Subsidiaries,
determined on a consolidated basis at such time.
"Default" means an event or condition the occurrence of
which would, with the lapse of time or the giving of notice or
both, become an Event of Default.
"Disposition Value" means, at any time, with respect to any
Property
(a) in the case of Property that does not constitute
Subsidiary Stock, the net book value thereof at such time,
and
(b) in the case of Property that constitutes
Subsidiary Stock, an amount equal to that percentage of the
net book value of the assets of the Subsidiary that issued
such stock as is equal to the percentage of all of the
outstanding Voting Stock of such Subsidiary represented by
such Subsidiary Stock (assuming, in the case of Subsidiary
Stock that is convertible into such Voting Stock, conversion
of such Subsidiary Stock), determined at such time.
"Distribution" means, in respect of any corporation,
association or other business entity, (a) dividends or other
distributions or payments on capital stock or other equity
interest of such corporation, association or other business
entity (except distributions in such stock or other equity
interest), and (b) the redemption or acquisition of such stock or
other equity interests or of warrants, rights or other options to
purchase such stock or other equity interests (except when solely
in exchange for such stock or other equity interests) unless
made, contemporaneously, from the net proceeds of a sale of such
stock or other equity interests.
"EBITDA" shall mean, with respect to any period, the total
of the following calculated without duplication for the Company
and its Subsidiaries on a consolidated basis for such period:
(a) Consolidated Adjusted Net Income for such period, less any
interest income included in determining Consolidated Adjusted Net
Income for such period; plus (b) any provision for (or less any
benefit from) income or franchise taxes deducted in determining
Consolidated Adjusted Net Income for such period; plus
(c) Interest Charges deducted in determining Consolidated
Adjusted Net Income for such period; plus (d) amortization and
depreciation expense deducted in determining Consolidated
Adjusted Net Income for such period.
"Environmental Protection Laws" means any law, statute or
regulation enacted by any jurisdiction in connection with or
relating to the protection or regulation of the environment,
including, without limitation, those laws, statutes and
regulations regulating the disposal, removal, production,
storing, refining, handling, transferring, processing or
transporting of hazardous or toxic substances, and any orders,
decrees or judgments issued by any court of competent
jurisdiction in connection with any of the foregoing.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" means any corporation or trade or business
that is a member of the same controlled group of corporations as
the Company, or is under common control with the Company, in each
case within the meaning of section 414(b) or section 414(c) of
the IRC.
"Event of Default" Section 8.1.
"Exchange Act" means the Securities and Exchange Act of
1934, as amended from time to time.
"Excluded Transfers" Section 6.8(b).
"Fair Market Value" means, with respect to any Property, the
sale value of such Property that would be realized in an
arm's-length sale at such time between an informed and willing
buyer, and an informed and willing seller, under no compulsion to
buy or sell, respectively.
"Foreign Pension Plan" means any plan, fund or other similar
program
(a) established or maintained outside of the United
States of America by any one or more of the Company or the
Subsidiaries primarily for the benefit of the employees
(substantially all of whom are aliens not residing in the
United States of America) of the Company or such
Subsidiaries, which plan, fund or other similar program
provides for retirement income for such employees or results
in a deferral of income for such employees in contemplation
of retirement, and
(b) not otherwise subject to ERISA.
"Funded Debt" means, at any time, with respect to any Person
(and without duplication), Indebtedness of such Person having a
final maturity of more than one (1) year from such time or that
is renewable or extendible at the option of such Person for a
period more than one (1) year from the date of determination, and
any Synthetic Lease Indebtedness in respect of "synthetic leases"
having a remaining term of greater than one year.
"GAAP" means accounting principles as promulgated from time
to time in statements, opinions and pronouncements by the
American Institute of Certified Public Accountants and the
Financial Accounting Standards Board and in such statements,
opinions and pronouncements of such other entities with respect
to financial accounting of for-profit entities as shall be
accepted by a substantial segment of the accounting profession in
the United States.
"Governmental Authority" means
(a) the government of
(i) the United States of America and any State or
other political subdivision thereof, or
(ii) any other jurisdiction in which the Company
or any Subsidiary conducts all or any part of its
business, or that asserts any jurisdiction over the
conduct of the affairs of, or the Property of the
Company or any Subsidiary, and
(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 (for the
purposes of this definition, the "Guarantor") 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 (the "Primary Obligor")
in any manner, whether directly or indirectly, including, without
limitation, obligations incurred through an agreement, contingent
or otherwise, by the Guarantor:
(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 working capital or other balance
sheet condition or any income statement condition of
the Primary Obligor or otherwise to advance or make
available funds for the purchase or payment of such
indebtedness or obligation;
(c) to lease Property or to purchase Securities or
other Property or services primarily for the purpose of
assuring the owner of such indebtedness or obligation of the
ability of the Primary Obligor to make payment of the
indebtedness or obligation; or
(d) otherwise to assure the owner of the indebtedness
or obligation of the Primary Obligor against loss in respect
thereof.
For purposes of computing the amount of any Guaranty, in
connection with any computation of indebtedness or other
liability, it shall be assumed that the indebtedness or other
liabilities that are the subject of such Guaranty are direct
obligations of the issuer of such Guaranty, and the amount of the
Guaranty is the amount of the direct obligation then outstanding.
"Indebtedness" with respect to any Person means, without
duplication,
(a) its liabilities for borrowed money (whether or not
evidenced by a Security) and its obligations in respect of
mandatorily redeemable preferred stock;
(b) any liabilities for borrowed money secured by any
Lien existing on Property owned by such Person (whether or
not such liabilities have been assumed);
(c) any obligations in respect of any Capital Lease of
such Person;
(d) the present value of all payments due under any
arrangement for retention of title or any conditional sale
agreement (other than a Capital Lease) discounted at the
implicit rate, if known, with respect thereto or, if
unknown, at 8% per annum;
(e) obligations of such Person in respect of letters
of credit or instruments serving a similar function issued
or accepted by banks and other financial institutions for
the account of such Person (whether or not representing
obligations for borrowed money);
(f) the aggregate net obligation under Swaps of such
Person; and
(g) any Guaranty of such Person of any obligation or
liability of another Person.
As used in this definition,
"Swaps" means, with respect to any Person, obligations with
respect to interest rate swaps and currency swaps and similar
obligations obligating such Person to make payments, whether
periodically or upon the happening of a contingency, except that
if any agreement relating to such obligation provides for the
netting of amounts payable by and to such Person thereunder or if
any such agreement provides for the simultaneous payment of
amounts by and to such Person, then, in each such case, the
amount of such obligations shall be the net amount thereof. The
aggregate net obligation of Swaps at any time shall be the
aggregate amount of the obligations of such Person under all
Swaps assuming all such Swaps had been terminated by such Person
as of the end of the then most recently ended fiscal quarter of
such Person. If such net aggregate obligation shall be an amount
owing to such Person, then the amount shall be deemed to be Zero
Dollars ($0). Any such interest rate swap, currency swap or
other similar obligation shall not be deemed to be a "Swap" for
purposes of this definition if such interest rate swap, currency
swap or other similar obligation is entered into (a) to hedge
interest rate and/or currency risk of such Person with respect to
Indebtedness incurred by such Person in the ordinary course of
its business and pursuant to prudent and reasonable business
practices that are consistent with the business practices of
other companies similarly situated to such Person, (b) to hedge
currency risk with respect to any cash payments expected to be
received or made by such Person pursuant to a contract entered
into by such Person in the ordinary course of business of such
Person and pursuant to prudent and reasonable business practices
that are consistent with the business practices of other
companies similarly situated to such Person or (c) to hedge
commodity risk with respect to any commodity held, required to be
delivered or anticipated to be received by such Person in the
ordinary course of business of such Person and pursuant to
prudent and reasonable business practices that are consistent
with the business practices of other companies similarly situated
to such Person.
"Interest Charge Coverage Ratio" means, at any time, the
ratio of (a) EBITDA for the period of four consecutive fiscal
quarters ending on, or most recently ended prior to, such time to
(b) Interest Charges for such period.
"Interest Charges" mean, with respect to any period, the
total (without duplication) of the following (in each case, after
eliminating all offsetting debits and credits between the Company
and its Subsidiaries and all other items required to be
eliminated in the course of the preparation of the consolidated
financial statements of the Company and its Subsidiaries in
accordance with GAAP): (a) all interest in respect of the
Indebtedness of the Company and its Subsidiaries (including
imputed interest on Capital Lease Obligations) deducted in
determining Consolidated Net Income for such period; plus (b) all
debt discount and expense amortized or required to be amortized
in the determination of Consolidated Net Income for such period
less (c) all interest income included in determining Consolidated
Net Income for such period."
"Intergroup Transfer" Section 6.8(c).
"IRC" means the Internal Revenue Code of 1986, together with
all rules and regulations promulgated pursuant thereto, as
amended from time to time.
"Investment" means any investment, made in cash or by
delivery of Property, by the Company or any of its Subsidiaries
(i) in any Person, whether by acquisition of stock, Indebtedness
or other obligation or Security, or by loan, Guaranty, advance,
capital contribution or otherwise, or (ii) in any property.
"Lien" means any interest in Property securing an obligation
owed to, or a claim by, a Person other than the owner of the
Property, whether such interest is based on the common law,
statute or contract, and including but not limited to the
security interest lien arising from a mortgage, encumbrance,
pledge, conditional sale or trust receipt or a lease, consignment
or bailment for security purposes, and the filing of any
financing statement under the Uniform Commercial Code of any
jurisdiction, or an agreement to give any of the foregoing. The
term "Lien" includes reservations, exceptions, encroachments,
easements, rights-of-way, covenants, conditions, restrictions,
leases and other title exceptions and encumbrances affecting real
property and includes, with respect to stock, stockholder
agreements, voting trust agreements, buy-back agreements and all
similar arrangements. For the purposes hereof, the Company and
each Subsidiary shall be deemed to be the owner of any Property
that it holds or shall have acquired subject to a conditional
sale agreement, Capital Lease or other arrangement pursuant to
which title to the Property has been retained by or vested in
some other Person for security purposes, and such retention or
vesting shall be deemed a Lien.
"Make-Whole Amount" means, with respect to a Note of a
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 the Note of such series over the amount of
such Called Principal, provided that the Make-Whole Amount may in
no event be less than zero. For the purposes of determining the
Make-Whole Amount, the following terms have the following
meanings:
"Called Principal" means, with respect to a Note of a
series, the principal of the Note of such series that is to
be prepaid pursuant to Section 4.2 or Section 4.4 or has
become or is declared to be immediately due and payable
pursuant to Section 8.2, as the context requires.
"Discounted Value" means, with respect to the Called
Principal of a Note of any series, the amount obtained by
discounting all Remaining Scheduled Payments with respect to
such Called Principal from their respective scheduled due
dates to the Settlement Date with respect to such Called
Principal, in accordance with accepted financial practice
and at a discount factor (applied on the same periodic basis
as that on which interest on the Notes is payable) equal to
the Reinvestment Yield with respect to such Called
Principal.
"Reinvestment Yield" means, with respect to the Called
Principal of a Note of any series, fifty one-hundredths
percent (0.50%) over the yield to maturity implied by
(i) the yields reported, as of 10:00 A.M. (New York City
time) on the second Business Day preceding the Settlement
Date with respect to such Called Principal, on the display
designated as "PX-1" on the Bloomberg Financial Markets
Services Screen (or such other display as may replace Page
PX-1 on the Bloomberg Financial Markets Services Screen) 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 remaining life closest to and greater than the Remaining
Average Life and (2) the actively traded U.S. Treasury
security with the remaining life 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 product obtained by
multiplying (a) such Called Principal by (b) the number of
years (calculated to the nearest one-twelfth year) that will
elapse between the Settlement Date with respect to such
Called Principal and the scheduled due date of such
Remaining Scheduled Payment.
"Remaining Scheduled Payments" means, with respect to
the Called Principal of a Note of any series, 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 of such series,
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 4.2, Section 4.4 or 8.2.
"Settlement Date" means, with respect to the Called
Principal of a Note of any series, the date on which such
Called Principal is to be prepaid pursuant to Section 4.2,
or Section 4.4 or has become or is declared to be
immediately due and payable pursuant to Section 8.2, as the
context requires.
"Material Adverse Effect" means a material adverse effect on
the business, prospects, profits, Properties or condition
(financial or otherwise) of the Company and the Subsidiaries, in
the aggregate, or the ability of the Company to perform its
obligations set forth herein and in the Notes.
"Material Subsidiary" means, at any time, a Subsidiary that,
(a) at any time during the then current fiscal year or
the two (2) then preceding fiscal years of the Company,
constituted more than three percent (3%) of Consolidated
Total Assets or Consolidated Shareholders' Equity, or
(b) accounted for more than three percent (3%) of the
revenues or net income of the Company and its consolidated
subsidiaries, determined on a consolidated basis, in respect
of any one or more of the then preceding twelve (12) fiscal
quarters of the Company.
"Merger Transfer" Section 6.8(d).
"Multiemployer Plan" means any "multiemployer plan" (as
defined in Section 3(37) of ERISA) in respect of which the
Company or any ERISA Affiliate is an "employer" (as such term is
defined in Section 3 of ERISA).
"Net Proceeds of Capital Stock" means, with respect to any
period, cash proceeds (net of all costs and out-of-pocket
expenses in connection therewith, including, without limitation,
placement, underwriting and brokerage fees and expenses),
received by the Company and its Subsidiaries during such period,
from the sale of all capital stock or other equity interests
(other than Redeemable capital stock or other Redeemable equity
interests) of the Company and its Subsidiaries, including in such
net proceeds: (a) the net amount paid upon issuance and exercise
during such period of any right to acquire any capital stock or
other equity interest, or paid during such period to convert a
convertible debt Security to capital stock or other equity
interest (but excluding any amount paid to the Company upon
issuance of such convertible debt Security), and (b) any amount
paid to the Company or any Subsidiary upon issuance of any
convertible debt Security issued after January 1, 2003 and
thereafter converted to capital stock or other equity interest
(other than Redeemable capital stock or other Redeemable equity
interests) during such period.
"Net Transfer Proceeds" means the Fair Market Value of the
proceeds (of whatever type) paid or payable to the Company and
the Subsidiaries in respect of the Transfer of any of their
respective Properties, determined as of the date of the
substantial completion of such transfer, net of ordinary and
customary expenses incurred by the Company and the Subsidiaries
in connection with such Transfer and paid to Persons other than
the Company, a Subsidiary or an Affiliate and net of all
Indebtedness required by its terms to be paid in connection with
such Transfer to any Person other than the Company or a
Subsidiary.
"Note Purchase Agreements" Section 1.2(c).
"Noteholder Approved Transfer" Section 6.8(g).
"Notes" shall have the meaning assigned thereto in Section 1.1.
"Offered Prepayment Amount" Section 4.4(a).
"Ordinary Course Transfer" Section 6.8(a).
"Other Purchasers" Section 1.2(c).
"Parent Corporation" means Seaboard Flour Corporation, a
Delaware corporation, and any successor in interest thereto.
"PBGC" means the Pension Benefit Guaranty Corporation, and
any Person succeeding to the functions of the PBGC.
"Permitted Affiliate Transactions" shall mean the
transactions described in Annex 4 hereto.
"Permitted Lines of Business" means,
(a) Meat (including chicken, turkey, beef, lamb and
pork), poultry and seafood production and processing,
(b) Ocean transportation and related ground
transportation and support,
(c) Animal feed production and processing,
(d) Flour and feed milling,
(e) Power production,
(f) Commodity merchandising,
(g) Baking, and
(h) Cash and investments held for future use by the
Company and the Subsidiaries in connection with any of the
aforementioned Permitted Lines of Business.
"Pension Plan" means, at any time, any "employee pension
benefit plan" (as such term is defined in section 3 of ERISA)
maintained at such time by the Company or any ERISA Affiliate for
employees of the Company or such ERISA Affiliate, excluding any
Multiemployer Plan.
"Person" means an individual, partnership, corporation,
trust, unincorporated organization, limited liability company or
a government or agency or political subdivision thereof.
"Placement Memorandum" Section 2.1.
"Preferred Stock" means, with respect to any corporation,
capital shares or capital stock of such corporation that are
entitled to preference or priority over any other capital shares
or capital stock of such corporation in respect of either or both
of the payment of dividends or the distribution of assets upon
liquidation.
"Prepayment Transfer" Section 6.8(f).
"Property" means any interest in any kind of property or
asset, whether real, personal or mixed, and whether tangible or
intangible.
"Property Disposition Date" Section 6.8(b).
"Purchase Money Lien" means,
(a) a Lien on Property (other than accounts receivable
and inventory), acquired or constructed by the Company or
any Subsidiary, which Lien secures Indebtedness used by the
owner of such Property to pay for all or a portion of the
related purchase price or construction costs of such
Property, provided that
(i) such Lien shall not extend to or cover any
Property other than Property acquired or constructed
after the Closing Date with the proceeds of the
Indebtedness secured thereby, and shall not secure
Indebtedness other than such Indebtedness,
(ii) such Lien shall be imposed on such Property
within one hundred twenty (120) days after the
acquisition thereof or the substantial completion
thereof, and
(iii) such Lien shall secure Indebtedness in an
amount not exceeding one hundred percent (100%) of the
cost of acquisition or construction of the Property to
which such Indebtedness relates, and
(b) Liens existing on Property of any corporation,
partnership or limited liability company at the time it
becomes a Subsidiary or merges with or consolidates into the
Company or a Subsidiary, and Liens existing on Property
acquired by the Company or any Subsidiary that were in
existence at the time of such acquisition, provided that
(i) such Lien shall not extend to or cover any
Property other than the Property subject to such Lien
at the time of such transaction, and shall not secure
Indebtedness other than the Indebtedness secured at the
time of such transaction,
(ii) such Lien shall not secure Indebtedness in an
amount exceeding one hundred percent (100%) of the Fair
Market Value of such Property measured at the time of
such transaction, and
(iii) such Lien shall not have been created in
contemplation of any such transaction, and shall not
have been created by the Company or a Subsidiary.
"Purchasers" means the Persons listed as purchasers of Notes
on Annex 1 hereto.
"Redeemable" means, with respect to the capital stock or
other equity interest of any Person, each share of such Person's
capital stock or other equity interest that is
(a) redeemable, payable or required to be purchased or
otherwise retired or extinguished, or convertible into
Indebtedness of such Person (i) at a fixed or determinable
date, whether by operation of sinking fund or otherwise,
(ii) at the option of any Person other than such Person or
(iii) upon the occurrence of a condition not solely within
the control of such Person; or
(b) convertible into other Redeemable capital stock or
other equity interests.
"Reinvested Transfer" Section 6.8(e).
"Required Holders" means, at any time, the holders of at
least fifty-one percent (51%) in principal amount of the Notes at
the time outstanding (exclusive of Notes then owned by any one or
more of the Company, any Subsidiary or any Affiliate).
"Responsible Officer" means any Senior Financial Officer and
any other officer of the Company with responsibility for the
administration of the relevant portion of this Agreement.
"Restricted Basket Transfer Proceeds Amount" means, at any
time, the net book value of all Restricted Basket Transfer
Proceeds of the Company and the Subsidiaries, determined at such
time. As used in this definition,
"Restricted Basket Transfer Proceeds" means all
consideration other than cash, cash equivalents, and marketable
securities (including, without limitation, exchange-traded stocks
and bonds) received by the Company or any Subsidiary in respect
of any Transfer of Property of the Company or any Subsidiary
permitted solely by Section 6.8(b) hereof and in which the Fair
Market Value of the aggregate consideration payable for such
Transfer and all related Transfers is greater than Seven Million
Five Hundred Thousand Dollars ($7,500,000).
"Restricted Payment" means any Distribution in respect of
the Company, including, without limitation, any Distribution
resulting in the acquisition by the Company of Securities which
would constitute treasury stock (provided (i) any Distribution of
common stock of the Company in exchange for capital stock or
other equity interests of the Company shall not be a Restricted
Payment even if as a result of such exchange treasury stock is
created and (ii) any Distribution of common stock of the Company
in connection with the Permitted Affiliate Transactions shall not
be a Restricted Payment). For purposes of this Agreement, the
amount of any Restricted Payment made in property shall be the
greater of (x) the Fair Market Value of such property (as
determined in good faith by the board of directors of the
Company) and (y) the net book value thereof on the books of the
Company, in each case determined as of the date on which such
Restricted Payment is made.
"Restricted Subsidiary Net Worth Amount" means, at any time,
with respect to any Subsidiary, the amount of the shareholders'
equity of such Subsidiary that cannot at such time be paid as a
dividend on the capital stock of such Subsidiary by virtue of
restrictions, direct or indirect, on the payment of such
dividends imposed by the terms of any Indebtedness, whether or
not such Indebtedness is recourse or non-recourse to such
Subsidiary.
"Securities Act" means the Securities Act of 1933, as
amended.
"Security" means "security" as defined in section 2(1) of
the Securities Act.
"Senior Financial Officer" means the chief financial
officer, principal accounting officer, treasurer or comptroller
of the Company.
"Senior Officer" means the chairman of the board of
directors, the president, the comptroller, the treasurer and any
vice-president of the Company.
"Series A Notes" shall have the meaning assigned thereto in
Section 1.1.
"Series B Notes" shall have the meaning assigned thereto in
Section 1.1.
"Series C Notes" shall have the meaning assigned thereto in
Section 1.1.
"Series D Notes" shall have the meaning assigned thereto in
Section 1.1.
"Subsidiary" means, as to any Person, any corporation,
partnership or limited liability company in which such Person or
one or more of its Subsidiaries or such Person and one or more of
its Subsidiaries owns sufficient equity or voting interests to
enable it or them (as a group) ordinarily, in the absence of
contingencies, to elect a majority of the directors (or Persons
performing similar functions) of such entity, and any partnership
or joint venture if more than a 50% interest in the profits or
capital thereof is owned by such Person or one or more of its
Subsidiaries or such Person and one or more of its Subsidiaries
(unless such partnership or joint venture can and does ordinarily
take major business actions without the prior approval of such
Person or one or more of its Subsidiaries). Unless the context
otherwise clearly requires, any reference to a "Subsidiary" is a
reference to a Subsidiary of the Company.
"Subsidiary Funded Debt" means, at any time, with respect to
any Subsidiary,
(a) Funded Debt of such Subsidiary,
(b) Preferred Stock of such Subsidiary.
For purposes of determining the amount of Subsidiary Funded Debt
at any time, the amount of Subsidiary Funded Debt shall include
the amount of the principal of all Indebtedness constituting
Subsidiary Funded Debt, the amount of accrued and unpaid interest
thereon, the par or stated value of all Preferred Stock
constituting Subsidiary Funded Debt, and the amount of declared
but unpaid dividends thereon, and any other amounts due in
respect of such Indebtedness and Preferred Stock.
"Subsidiary Stock" means the capital stock of any Subsidiary
(without duplication) and any security exchangeable for, or
convertible into, such capital stock.
"Successor Corporation" Section 6.4.
"Synthetic Lease Indebtedness" means the present value of
all payments due under "synthetic leases," being those leases
which are treated as operating leases for accounting purposes but
for which the lessee is treated as the owner for federal income
tax purposes, having a term (excluding any renewal thereof at the
option of the lessee) of more than one year, discounted at the
implicit rate, if known, with respect thereto, or, if unknown, at
8% per annum. In making such computation, the following leases
and arrangements shall not be included:
(a) Any other operating leases entered into in the
ordinary course of business, including, without limitation,
leases for office space, warehouse or other storage space or
production facilities; and any other operating leases for
any personal property, including, without limitation, motor
vehicles, copiers, computer and telephone equipment, office
furniture and equipment, production equipment and machinery,
and any charters, whether time or voyage, of any vessels, in
each such case so long as such operating leases would
qualify as conventional operating leases under GAAP and do
not constitute synthetic leases, tax retention leases or any
other similar off-balance sheet financing arrangements in
respect of any of the property described therein;
(b) Any leases, contracts, installment purchases or
other arrangements which for accounting purposes are
capitalized and included on the Company's balance sheet as
an asset and an accompanying liability; and
(c) The production facilities financed by the
synthetic lease programs in existence on the Closing Date,
including any renewals or refinancings thereof pursuant to
synthetic leases.
"Transfer" Section 6.8.
"Transfer Date" Section 4.4(b).
"Voting Stock" means capital stock of any class or classes
of a corporation the holders of which are ordinarily, in the
absence of contingencies, entitled to vote in the election of
corporate directors (or Persons performing similar functions).
"Wholly-Owned Subsidiaries" means at any time, a Subsidiary
all of the capital stock of which, and securities convertible
into, exchangeable for, or representing the right to purchase,
such capital stock (other than directors' qualifying shares) is
owned at such time by any one or more of the Company and the
other Wholly-Owned Subsidiaries, free of any Lien.
Section 9.2. Generally Accepted Accounting Principles. Where
the character or amount of any asset or liability or item of
income or expense, or any consolidation or other accounting
computation is required to be made for any purpose hereunder, it
shall be done in accordance with GAAP as in effect on the date
of, or at the end of the period covered by, the financial
statements from which such asset, liability, item of income, or
item of expense, is derived, or, in the case of any such
computation, as in effect on the date as of which such
computation is required to be determined, provided, that if any
term defined herein includes or excludes amounts, items or
concepts that would not be included in or excluded from such term
if such term was defined with reference solely to GAAP, such term
will be deemed to include or exclude such amounts, items or
concepts as set forth herein.
Section 9.3. Directly or Indirectly. 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, including actions taken by or on behalf of any
partnership in which such Person is a general partner.
Section 9.4. Section Headings and Table of Contents and
Construction.
(a) Section Headings and Table of Contents, etc. The titles
of the Sections of this Agreement and the Table of Contents of
this Agreement appear as a matter of convenience only, do not
constitute a part hereof and shall not affect the construction
hereof. The words "herein," "hereof," "hereunder" and "hereto"
refer to this Agreement as a whole and not to any particular
Section or other subdivision.
(b) Construction. Each covenant contained herein shall be
construed (absent an express contrary provision herein) as being
independent of each other covenant contained herein, and
compliance with any one covenant shall not (absent such an
express contrary provision) be deemed to excuse compliance with
one or more other covenants.
Section 9.5. Governing Law. This Agreement and the Notes shall
be governed by, and construed and enforced in accordance with,
internal New York law.
Section 10.Miscellaneous.
Section 10.1. Communications.
(a) Method; Address. All communications hereunder or under
the Notes shall be in writing, shall be hand delivered, sent by
overnight courier, or sent by facsimile transmission (confirmed
by delivery by overnight courier sent on the same day as such
facsimile transmission) and shall be addressed,
(i) if to the Company,
Seaboard Corporation
0000 Xxxx 00xx Xxxxxx
Xxxxxxx Xxxxxxx, XX 00000
Fax. (000) 000-0000
Attention: Vice-President - Finance
or at such other address as the Company shall have furnished in
writing to all holders of the Notes at the time outstanding, and
(ii) if to any of the holders of the Notes,
(A) if such holders are the Purchasers, at their
respective addresses set forth on Annex 1 hereto, and
further including any parties referred to on such Annex
1 which are required to receive notices in addition to
such holders of the Notes, and
(B) if such holders are not the Purchasers, at
their respective addresses set forth in the register
for the registration and transfer of Notes maintained
pursuant to Section 6.3 hereof,
or to any such party at such other address as such party may
designate by notice duly given in accordance with this
Section 10.1 to the Company (which other address shall be entered
in such register).
(b) When Given. Any communication shall be deemed to be
received when actually received at the address of the addressee.
Section 10.2. Confidentiality. Any information concerning the
Company or any Subsidiary that has been supplied to any holder of
Notes by the Company or such Subsidiary and identified in writing
by such party as confidential and that is not, at the time
supplied to such holder or thereafter, information available to
the public shall be treated as confidential by such holder in
accordance with the procedures and standards that such holder
generally applies to information of a confidential nature.
Notwithstanding the foregoing, the Company acknowledges that the
holder of any Note may deliver copies of any financial statements
and other documents delivered to such holder, and disclose any
other information disclosed to such holder, by or on behalf of
the Company or any Subsidiary in connection with or pursuant to
this Agreement to:
(a) such holder's directors or trustees, officers,
employees, agents and professional consultants,
(b) any other holder of any Note,
(c) any Person to which such holder offers to sell
such Note or any part thereof, provided that such Person
first agrees in writing to be subject to the requirements of
this Section,
(d) any federal or state regulatory authority having
jurisdiction over such holder, and the National Association
of Insurance Commissioners or any similar organization,
(e) Standard & Poor's Corporation, Xxxxx'x Investor
Services, Inc., and any other nationally recognized
financial rating service, which is reviewing the credit
rating of any holder of Notes, and
(f) any other Person to which such delivery or
disclosure may be necessary or appropriate in compliance
with any law, rule, regulation or order applicable to such
holder, in response to any subpoena or other legal process,
in connection with any litigation to which such holder is a
party, or in order to protect such holder's investment in
such Note.
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 10.2 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 10.2.
Section 10.3. Reproduction of Documents. This Agreement and all
documents relating hereto, including, without limitation,
(a) consents, waivers and modifications that may
hereafter be executed,
(b) documents received by you at the closing of your
purchase of the Notes (except the Notes themselves), and
(c) financial statements, certificates and other
information previously or hereafter furnished to you or any
other holder of Notes,
may be reproduced by any holder of Notes by any photographic,
photostatic, microfilm, microcard, miniature photographic,
digital or other similar process and each holder of Notes may
destroy any original document so reproduced. The Company agrees
and stipulates that any such reproduction shall be admissible in
evidence as the original itself in any judicial or administrative
proceeding (whether or not the original is in existence and
whether or not such reproduction was made by such holder of Notes
in the regular course of business) and that any enlargement,
facsimile or further reproduction of such reproduction shall
likewise be admissible in evidence. Nothing in this Section 10.3
shall prohibit the Company or any holder of Notes from contesting
the accuracy or validity of any such reproduction.
Section 10.4. Survival. All warranties, representations,
certifications and covenants made by the Company herein or in any
certificate or other instrument delivered by it or on its behalf
hereunder shall be considered to have been relied upon by you and
shall survive the delivery to you of the Notes regardless of any
investigation made by you or on your behalf. All statements in
any such certificate or other instrument shall constitute
warranties and representations by the Company hereunder. The
obligations of the Company to make payments to the holders of the
Notes in respect of reimbursement of costs, charges, outlays and
expenses pursuant hereto shall survive the payment or prepayment
of the Notes and the termination hereof.
Section 10.5. Successors and Assigns. This Agreement shall inure
to the benefit of and be binding upon the successors and assigns
of each of the parties hereto. The provisions hereof are
intended to be for the benefit of all holders, from time to time,
of Notes, and shall be enforceable by any such holder, whether or
not an express assignment to such holder of rights hereunder
shall have been made by you or your successor or assign.
Section 10.6. Amendment and Waiver.
(a) Requirements. This Agreement may be amended, and the
observance of any term hereof may be waived, with (and only with)
the written consent of the Company and the Required Holders,
provided that no such amendment or waiver of any of the
provisions of Section 1 through Section 3 hereof, inclusive, or
any defined term used therein, shall be effective as to any
holder of Notes unless consented to by such holder in writing;
and provided further that no such amendment or waiver shall,
without the written consent of the holders of all Notes
(exclusive of Notes held by the Company, any Subsidiary or any
Affiliate) at the time outstanding,
(i) subject to Section 8 hereof, change the amount or
time of any prepayment or payment of principal or Make-Whole
Amount or the rate or time of payment of interest,
(ii) amend or waive the provisions of Section 8 hereof,
(iii) amend the definition of "Required Holders," or
(iv) amend or waive this Section 10.6.
(b) Solicitation of Noteholders.
(i) Solicitation. Each holder of the Notes
(irrespective of the amount of Notes then owned by it) shall
be provided by the Company with sufficient information to
enable such holder to make an informed decision with respect
to any proposed waiver or amendment of any of the provisions
hereof or the Notes. Executed or true and correct copies of
any waiver or consent effected pursuant to the provisions of
this Section 10.6 shall be delivered by the Company to each
holder of outstanding Notes forthwith following the date on
which the same shall have been executed and delivered by all
holders of outstanding Notes required to consent or agree to
such waiver or consent.
(ii) Payment. The Company shall 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 the
holders of all Notes then outstanding.
(iii) Scope of Consent. Any consent made pursuant to
this Section 10.6 by a holder of Notes that has transferred
or has agreed to transfer its Notes to the Company, any
Subsidiary or any Affiliate and has provided or has agreed
to provide such written consent as a condition to such
transfer shall be void and of no force and effect except
solely as to such holder, and any amendments effected or
waivers granted or to be effected or granted that would not
have been or would not be so effected or granted but for
such consent (and the consents of all other holders of Notes
that were acquired under the same or similar conditions)
shall be void and of no force and effect, retroactive to the
date such amendment or waiver initially took or takes
effect, except solely as to such holder.
(c) Binding Effect. Except as provided in
Section 10.6(b)(iii) hereof, any amendment or waiver consented to
as provided in this Section 10.6 shall apply equally to all
holders of Notes and shall be binding upon them and upon each
future holder of any Note and upon the Company whether or not
such Note shall have been marked to indicate such amendment or
waiver. No such amendment or waiver shall extend to or affect
any obligation, covenant, agreement, Default or Event of Default
not expressly amended or waived or impair any right consequent
thereon.
(d) Expenses. The Company shall pay when billed the
reasonable expenses (including expenses incurred in connection
with inspections made pursuant to Section 7.4 hereof) relating to
the consideration, negotiation, preparation or execution of any
amendments, waivers, or consents with respect to the provisions
hereof, and at any time when the parties hereto are conducting
"workout" negotiations, (including, without limitation, the fees
of professional advisors and attorneys and the allocated cost of
your counsel who are your employees or your affiliates'
employees), whether or not any such amendments, waivers or
consents are executed.
Section 10.7. Payments on Notes.
(a) Manner of Payment. The Company shall pay all amounts
payable with respect to each Note (without any presentment of
such Notes and without any notation of such payment being made
thereon) by crediting, by federal funds bank wire transfer, the
account of the holder thereof in any bank in the United States of
America as may be designated in writing by such holder, or in
such other manner as may be reasonably directed or to such other
address in the United States of America as may be reasonably
designated in writing by such holder. Annex 1 hereto shall be
deemed to constitute notice, direction or designation (as
appropriate) to the Company with respect to payments as
aforesaid. In the absence of such written direction, all amounts
payable with respect to each Note shall be paid by check mailed
and addressed to the registered holder of such Note at the
address shown in the register maintained by the Company pursuant
to Section 5.1 hereof.
(b) Payments Due on Holidays. If any payment due on, or with
respect to, any Note shall fall due on a day other than a
Business Day, then such payment shall be made on the first
Business Day following the day on which such payment shall have
so fallen due; provided that if all or any portion of such
payment shall consist of a payment of interest, for purposes of
calculating such interest, such payment shall be deemed to have
been originally due on such first following Business Day, such
interest shall accrue and be payable to (but not including) the
actual date of payment, and the amount of the next succeeding
interest payment shall be adjusted accordingly.
(c) Payments, When Received. Any payment to be made to the
holders of, Notes hereunder or under the Notes shall be deemed to
have been made on the Business Day such payment actually becomes
available to such holder at such holder's bank prior to 11:00
a.m. (local time of such bank).
Section 10.8. Entire Agreement. This Agreement constitutes the
final written expression of all of the terms hereof and is a
complete and exclusive statement of those terms.
Section 10.9. Duplicate Originals, Execution in Counterpart. Two
or more duplicate originals hereof may be signed by the parties,
each of which shall be an original but all of which together
shall constitute one and the same instrument. This Agreement may
be executed in one or more counterparts and shall be effective
when at least one counterpart shall have been executed by each
party hereto, and each set of counterparts that, collectively,
show execution by each party hereto shall constitute one
duplicate original.
[Remainder of page intentionally blank. Next page is signature page.]
The execution hereof by the Purchasers shall constitute a
contract among the Company and the Purchasers for the uses and
purposes hereinabove set forth. This Agreement may be executed
in any number of counterparts, each executed counterpart
constituting an original but all together only one agreement.
Very truly yours,
Seaboard Corporation
By /s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: Senior Vice President and Chief
Financial Officer
Accepted as of the date first written above:
Allstate Life Insurance Company
By /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
By /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Authorized Signatories
Accepted as of the date first written above:
Allstate Life Insurance Company
of New York
By /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
By /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Authorized Signatories
Accepted as of the date first written above:
The Lincoln National Life
Insurance Company
By: Delaware Investment
Advisers, a series of
Delaware Management Business
Trust, Attorney-In-Fact
By /s/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title: Vice President
Accepted as of the date first written above:
Jefferson-Pilot Life Insurance Company
By /s/ Xxxxxx X. Xxxxxx, XX
Name: Xxxxxx X. Xxxxxx, XX
Title: Vice President
Accepted as of the date first written above:
Massachusetts Mutual Life Insurance Company
By: Xxxxx X. Xxxxxx & Company
Inc., as Investment Adviser
By /s/ Xxxxxxxxx X. Xxxxxxxx
Name: Xxxxxxxxx X.Xxxxxxxx
Title:Managing Director
Accepted as of the date first written above:
C.M. Life Insurance Company
By: Xxxxx X. Xxxxxx & Company
Inc., as Investment Sub-
Adviser
By /s/ Xxxxxxxxx X. Xxxxxxxx
Name: Xxxxxxxxx X.Xxxxxxxx
Title: Managing Director
Accepted as of the date first written above:
MassMutual Asia Limited
By: Xxxxx X. Xxxxxx & Company
Inc., as Investment Adviser
By /s/ Xxxxxxxxx X. Xxxxxxxx
Name: Xxxxxxxxx X.Xxxxxxxx
Title: Managing Director
Accepted as of the date first written above:
Modern Woodmen of America
By /s/ C. Xxxxxx Xxxxx
Name: C. Xxxxxx Xxxxx
Title: General Counsel
Accepted as of the date first written above:
Nationwide Life and Annuity Insurance Company
By /s/ Xxxx X. Xxxxxxxxxx
Name: Xxxx X. Xxxxxxxxxx
Title: Associate Vice President
Accepted as of the date first written above:
Nationwide Life Insurance Company
By /s/ Xxxx X. Xxxxxxxxxx
Name: Xxxx X. Xxxxxxxxxx
Title: Associate Vice President
Accepted as of the date first written above:
Northwest Farm Credit Services, PCA
By /s/ Xxx X. Xxxxx
Name: Xxx X. Xxxxx
Title: Vice President
Accepted as of the date first written above:
The Ohio National Life Insurance Company
By /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President, Investments
Accepted as of the date first written above:
Phoenix Life Insurance Company
By /s/ Xxxxxxxxxxx X. Xxxxxx
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Senior Vice President
Corporate Portfolio Management
Phoenix Life Insurance Company
Accepted as of the date first written above:
Security Financial Life Insurance Co.
By /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Vice President Chief Investment
Officer
Accepted as of the date first written above:
Woodmen Accident and Life Company
By /s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: Director, Securities Investments,
Chief Investment Officer &
Asst. Treasurer
