Exhibit 4.4
SOLICITATION AGENT AGREEMENT
X.X. XXXXXX, INC.
May 27, 2000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
1. X.X. Xxxxxx, Inc, (the "Company") plans to solicit consents (the "Consents")
from the holders of all of its $150,000,000 10-1/2% Senior Notes due 2005 (the
"Securities") to a proposed amendment (the "Proposed Amendment") to the
indenture (the "Indenture") pursuant to which the Securities were issued, on the
terms and subject to the conditions set forth in the Consent Solicitation
Statement (the "Solicitation") and the Consent Letter (the "Consent Letter")
attached hereto as Exhibits A and B, respectively (collectively referred to
herein as the "Consent Solicitation"). The Proposed Amendment is to increase the
maximum principal amount of 10-1/2% Senior Notes due 2005 that may be issued
under the Indenture from $150,000,000 to $200,000,000, and is being sought in
connection with a proposed offering and sale (the "Offering") of additional
Securities (the "Additional Securities"). The Securities are, and the Additional
Securities will be, unconditionally guaranteed, jointly and severally, by
certain subsidiaries of the Company (the "Guarantors").
2. The Company hereby engages you as exclusive Solicitation Agent, authorizes
you to act as such in connection with the Consent Solicitation and agrees that
you shall act as an independent contractor with duties solely to the Company. As
Solicitation Agent, you agree, in accordance with your customary practices, to
perform those services in connection with the Consent Solicitation as are
customarily performed by investment banking concerns in connection with consent
solicitations of like nature, including but not limited to soliciting Consents
sought by the Company pursuant to the Consent Solicitation.
3. The Company agrees to furnish you with as many copies as you may reasonably
request of the Solicitation and Consent Letter, any amendments or supplements
thereto and any other documents or materials whatsoever relating to the Consent
Solicitation that are distributed or made available to the public or the holders
of the Securities (collectively, as amended or supplemented from time to time,
and including any documents incorporated by reference therein, the "Consent
Solicitation Material") to be used by the Company in connection with the Consent
Solicitation. The Company agrees that, within a reasonable time prior to using
any Consent Solicitation Material, it will submit copies of such material to you
and your counsel and will not use or publish any such material to which you or
your counsel reasonably object. In the event that (i) the Company uses or
permits the use of any Consent Solicitation Material (a) which has not been
submitted to you for your comments or (b) which has been so submitted and with
respect to which you have made comments, but which comments have not resulted in
a response reasonably satisfactory to you and your counsel to reflect your
comments, (ii) the Company shall have breached, in any material respect, any of
its representations, warranties, agreements or covenants herein and such breach
is not promptly cured or (iii) the Consent Solicitation is terminated or
withdrawn for any reason or any stop order, restraining order, injunction or
denial of an application for approval has been issued and not thereafter stayed
or vacated with respect to, or any proceeding, litigation or investigation has
been initiated that is reasonably likely to have a material adverse effect on
the ability of the Company to carry out the Consent Solicitation or the
performance of this Agreement, then in any such case you shall be entitled to
withdraw as Solicitation Agent without any liability or penalty to you or any
other Indemnified Person (as defined in Section 10) and without loss of any
right to the payment of all expenses payable hereunder which have accrued to the
date of such withdrawal. If you withdraw as Solicitation Agent pursuant to the
preceding sentence, the reimbursement for your expenses through the date of such
withdrawal shall be paid to you promptly after such date. The Company shall
inform you promptly after it receives notice or becomes aware of the happening
of any event, or the discovery of any fact, that would require the making of any
change in any Consent Solicitation Material then being used or would affect the
truth or completeness of any representation or warranty contained in this
Agreement if such representation or warranty were being made immediately after
the happening of such event or the discovery of such fact.
4. The Company and you agree that you will receive no separate compensation for
your services as Solicitation Agent hereunder apart from the underwriting
discount in connection with the Offering.
5. In addition to your compensation for your services as Solicitation Agent, the
Company agrees to pay (i) all reasonable fees and expenses relating to the
preparation, printing, mailing and publishing of the Consent Solicitation
Material and the supplemental indenture with respect to the Indenture to effect
the Proposed Amendment (the "Supplemental Indenture"), (ii) all advertising
charges, (iii) all other reasonable fees and expenses in connection with the
Consent Solicitation, including those of any depositary, information agent or
other person rendering services in connection therewith and (iv) to brokers and
dealers (including you), commercial banks, trust companies and other nominees
the amount of their customary mailing and handling expenses incurred in
forwarding the Consent Solicitation Material to their customers. The reasonable
fees and expenses of the Processing Agent (as defined in Section 6) will be paid
by you. The Company will also reimburse you for all out-of-pocket expenses
reasonably incurred by you in connection with your services as Solicitation
Agent, as well as the reasonable fees and expenses of Xxxxxx Xxxxxx & Xxxxxxx,
your legal counsel. All payments to be made by the Company pursuant to Section 4
and this Section 5 shall be made promptly after the closing of the Consent
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Solicitation. The Company shall perform its obligations set forth in this
Section 5 whether or not the Consent Solicitation is commenced or the Company
acquires any Consents pursuant to the Consent Solicitation or otherwise.
6. The Company will arrange for MacKenzie Partners, Inc. to serve as processing
agent (the "Processing Agent") in connection with the Consent Solicitation and,
as such, to advise you at least daily as to such matters relating to the Consent
Solicitation as you may request. The Company shall provide you or cause the
trustee under the Indenture and the Depository Trust Company ("DTC") to provide
you with copies of the records or other lists showing the names and addresses
of, and principal amounts of Securities held by, the holders of Securities as of
a recent date and shall, from and after such date, use its best efforts to cause
you to be advised from day to day during the pendency of the Consent
Solicitation of all transfers of Securities, such notification consisting of the
name and address of the transferor and transferee of any Securities and the date
of such transfer. The Company will arrange for MacKenzie Partners, Inc. to serve
as information agent in connection with the Consent Solicitation and, as such,
to advise you as to such matters relating to the Consent Solicitation as you may
request and to furnish you with any written reports concerning any such
information as you may request.
7. The Company represents and warrants to you, and agrees with you, that on and
as of the date the Consent Solicitation is commenced (the "Commencement Date")
and upon the consummation of the Solicitation (which, for purposes of this
Agreement, shall be deemed to occur when payments for Consents are made):
(a) The Company is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its incorporation
and it has taken all necessary corporate action to authorize the Consent
Solicitation, the execution, delivery and performance of the Supplemental
Indenture and all other actions contemplated by the Company in the Consent
Solicitation Material.
(b) This Agreement has been duly executed and delivered by the
Company.
(c) A complete and correct copy of the Consent Solicitation Material
has been furnished to you or will be furnished to you no later than the
Commencement Date. The Consent Solicitation Material, as amended and
supplemented from time to time, comply and will comply in all material
respects with the applicable provisions the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and the rules and regulations
thereunder. The Consent Solicitation Material do not and will not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
made therein, in the light of the circumstances under which they are made,
not misleading, except that the Company makes no representation or warranty
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with respect to any statement contained in, or any matter omitted from, any
Consent Solicitation Material relating to you and based upon information
furnished in writing by you to the Company expressly for use therein.
(d) The Consent Solicitation, the payment for the Consents pursuant to
the Consent Solicitation and the execution and delivery of, and the
consummation of the transactions contemplated in, this Agreement and the
Supplemental Indenture will comply in all material respects with all
applicable requirements of law, including any applicable regulation of any
governmental agency, authority or instrumentality, and no material consent,
authorization, approval, order, exemption or other action of, or filing
with, any governmental agency, authority or instrumentality of the United
States or any jurisdiction therein or any other jurisdiction is required in
connection with the Consent Solicitation, the execution, delivery and
performance of the Supplemental Indenture or the consummation by the
Company of the transactions contemplated herein or in the Consent
Solicitation Material, other than those consents, authorizations,
approvals, orders, exemptions and other actions that will have been
obtained or taken, and any filings that will have been made, prior to the
consummation of the Consent Solicitation.
(e) The Consent Solicitation, the payment for the Consents pursuant to
the Consent Solicitation and the execution and delivery of, and the
consummation of the transactions contemplated in, this Agreement and the
Supplemental Indenture will not (i) conflict with or violate the
certificate of incorporation or bylaws of the Company or any of its
subsidiaries, (ii) result in a breach of or constitute a default under, any
loan or credit agreement, indenture, mortgage, note or other agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which any of them or any of their respective properties or assets is or may
be bound or (iii) violate any order, judgment or decree of any court or
governmental agency, authority or instrumentality of the United States or
any jurisdiction therein or any other jurisdiction applicable to the
Company or any of its subsidiaries, in the case of foregoing clauses (ii)
and (iii), in each case, except for such breaches, defaults or violations
as would not have a material adverse effect on the ability of the Company
to effect the Consent Solicitation ("Material Adverse Effect").
(f) Any document incorporated by reference in the Consent Solicitation
Material when filed complied or will comply, as the case may be, in all
material respects with the requirements of the Securities Act and the
Exchange Act, as applicable, and the rules and regulations thereunder.
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(g) Subject to the conditions described in the Solicitation,
sufficient funds are or will be available to the Company to enable the
Company promptly to make the consent payments for the Consents.
(h) The Proposed Amendment set forth in the Supplemental Indenture
when executed and delivered will conform, in all material respects, to the
descriptions thereof in the Consent Solicitation Material.
(i) The Consent Solicitation does not require registration under the
Securities Act.
(j) The Supplemental Indenture may be entered into upon the consent of
holders of a majority of the aggregate principal amount of the Securities
outstanding under the Indenture, pursuant to the terms of the Indenture.
Upon such execution and delivery thereof, and on the date of payment for
Consents, the Supplemental Indenture will have been duly and validly
executed and delivered by the Company and the guarantors party thereto, and
each of the Supplemental Indenture and the Indenture as supplemental by the
Supplemental Indenture will be a legal, valid and binding obligation of the
Company and the guarantors party thereto, enforceable against them in
accordance with its terms, except as the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights
generally and may be subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at
law).
8. The Company will advise you promptly of (i) the occurrence of any event which
could cause the Company to withdraw or terminate the Consent Solicitation or
would permit the Company to exercise any right not to make consent payments
thereunder, (ii) any proposal or requirement to make, amend or supplement any
Consent Solicitation Material, (iii) the issuance of any order or the taking of
any other action by any administrative or judicial tribunal or other
governmental agency or instrumentality concerning the Consent Solicitation (and,
if in writing, will furnish you a copy thereof) and (iv) any other information
relating to the Consent Solicitation which you may from time to time request.
The Company agrees that if any event occurs or condition exists as a result of
which the Consent Solicitation Material would include an untrue statement of a
material fact, or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances when the Consent
Solicitation Material is delivered to a holder of Securities, not misleading, or
if, in the opinion of the Company, after consultation with you, it is necessary
at any time to amend or supplement the Consent Solicitation Material to comply
with applicable law, the Company shall immediately notify you, prepare an
amendment or supplement to the Consent Solicitation Material that will correct
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such statement or omission or effect such compliance, and supply such amended or
supplemented Consent Solicitation Material to you.
9. The Company hereby agrees to hold you harmless and to indemnify you
(including any of your affiliated companies and any director, officer, agent or
employee of you or any such affiliated company) and any director, officer or
other person controlling (within the meaning of Section 20(a) of the Exchange
Act) you (including any of your affiliated companies) (collectively,
"Indemnified Persons") from and against any and all losses, claims, damages,
liabilities or expenses (whether in contract, tort or otherwise) whatsoever (as
incurred or suffered and including, but not limited to, any and all expenses
reasonably incurred in investigating, preparing or defending any litigation or
proceeding, commenced or threatened, or any claim whatsoever and whether or not
you or any other Indemnified Person shall be a party thereto) (a) arising out of
or based upon (i) any untrue statement or alleged untrue statement of a material
fact contained in any Consent Solicitation Material, or any omission or alleged
omission to state in any Consent Solicitation Material a material fact necessary
in order to make the statements made therein, in the light of the circumstances
under which they are made, not misleading, (ii) any withdrawal or termination by
the Company of, or failure by the Company to make or consummate, the Consent
Solicitation or make any consent payments pursuant to the Consent Solicitation
or (iii) any breach by the Company of any representation or warranty or failure
to comply with any of the agreements contained herein or (b) otherwise arising
out of, relating to or in connection with or alleged to arise out of, relate to
or be in connection with the Consent Solicitation or your role in connection
therewith; except in the case of this clause (b) above for any such loss, claim,
damage, liability or expense which is attributable to your willful misconduct,
bad faith or gross negligence and except in the case of clauses (a)(i) and (b)
above for any such loss, claim, damage, liability or expense which arises out of
or is based upon (x) any untrue statement or alleged untrue statement of a
material fact contained in any Consent Solicitation Material or (y) any omission
or alleged omission to state in any Consent Solicitation Material a material
fact necessary in order to make the statements made therein, in the light of the
circumstances under which they are made, not misleading, if in any such case
such statement or omission relates to you and was made in reliance upon and in
conformity with information furnished in writing by you to the Company expressly
for use therein. The foregoing indemnity shall be in addition to any liability
which the Company might otherwise have to you and such other Indemnified
Persons. You shall have no liability (direct or indirect and whether in tort,
contract or otherwise) to the Company or any other person for any losses,
claims, damages, liabilities or expenses arising from your own acts or omissions
in performing your obligations hereunder or otherwise in connection with the
Consent Solicitation except for any such losses, claims, damages, liabilities or
expenses attributable to your willful misconduct, bad faith or gross negligence.
If a claim is made against any Indemnified Person as to which
such Indemnified Person may seek indemnity under this Section 10, such
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Indemnified Person shall notify the Company promptly after any written assertion
of such claim threatening to institute an action or proceeding with respect
thereto and shall notify the Company promptly of any action commenced against
such Indemnified Person within a reasonable time after such Indemnified Person
shall have been served with a summons or other first legal process giving
information as to the nature and basis of the claim. Failure to so notify the
Company shall not, however, relieve the Company from any liability which they
may have on account of the indemnity under this Section 10 if the Company has
not been prejudiced in any material respect by such failure. The Company shall
be entitled to participate at its own expense in any such litigation or
proceeding and to assume at its sole expense the defense of any such litigation
or proceeding, and such defense shall be conducted by counsel reasonably
satisfactory to such Indemnified Person. The Company shall, upon the request of
such Indemnified Person, assume the defense of any such litigation or
proceeding, and in the case of any such request such defense shall be conducted
by counsel reasonably satisfactory to you. In any such litigation or proceeding
the defense of which the Company shall have so assumed, any Indemnified Person
shall have the right to participate in such litigation or proceeding and to
retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such Indemnified Person unless (i) the Company and the
Indemnified Person shall have mutually agreed to the retention of such counsel
or (ii) the named parties to any such proceeding (including any impleaded
parties) include (x) the Company and (y) the Indemnified Person and the
Indemnified Person is advised by counsel that representation of both parties by
the same counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that the Company shall not, in
connection with any litigation or proceeding or related litigation or proceeding
in the same jurisdiction, be liable under this Agreement for the fees and
expenses of more than one separate firm (in addition to any local counsel) for
all such Indemnified Persons and that all such fees and expenses shall be
reimbursed as they are incurred. Such separate firm shall be designated by
Xxxxxx Xxxxxxx & Co. Incorporated. The Company shall not be liable for any
settlement of any litigation or proceeding effected without their written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the Company agrees, subject to the provisions of this Section 10,
to indemnify the Indemnified Person from and against any loss, damage, liability
or expenses by reason of such settlement or judgment. The Company agrees to
notify you promptly of the assertion of any claim in connection with the Consent
Solicitation against either of them, any of their respective officers or
directors or any person who controls either of them within the meaning of
Section 20(a) of the Securities Exchange Act of 1934, as amended.
To the extent the indemnity provided for in the foregoing
paragraphs of this Section 10 is unavailable to an Indemnified Person in respect
of any losses, claims, damages, liabilities or expenses referred to therein,
then the Company agrees to contribute to the amount paid or payable by such
Indemnified Person as a result of such losses, claims, damages, liabilities or
expenses (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company, on the one hand, and by you, on the other,
from the Consent Solicitation or (ii) if the allocation provided by the
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foregoing clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in the
foregoing clause (i), but also the relative fault of the Company, on the one
hand, and of you, on the other, in connection with the statements, actions or
omissions which resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
benefits received by the Company, on the one hand, and by you, on the other,
shall be deemed in the same proportion as (i) the maximum aggregate value of the
consideration proposed to be paid by the Company for consent payments pursuant
to the Consent Solicitation bears to (ii) the maximum aggregate fee proposed to
be paid to you pursuant to Section 4. The relative fault of the Company, on the
one hand, and of you, on the other, (i) in the case of an untrue or alleged
untrue statement of a material fact or an omission or alleged omission to state
a material fact, shall be determined by reference to, among other things,
whether such statement or omission relates to information supplied by the
Company or by you and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission and
(ii) in the case of any other action or omission, shall be determined by
reference, among other things, whether such action or omission was taken or
omitted to be taken by the Company or by you and the parties' relative intent,
knowledge, access to information and opportunity to prevent such action or
omission.
The Company and you agree that it would not be just and
equitable if contribution pursuant to this Section 10 were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Person as a result of
the losses, claims, damages, liabilities or expenses referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitation set forth above, any legal or other expenses reasonably incurred by
such Indemnified Person in connection with investigating or defending any such
action or claim.
10. The indemnity and contribution agreements contained in Section 10, the
provisions of Sections 4 and 5 and the representations and warranties of the
Company set forth in this Agreement shall remain operative and in full force and
effect, regardless of (i) any failure to commence, or the withdrawal,
termination or completion of, the Consent Solicitation or the termination or
assignment of this Agreement, (ii) any investigation made by or on behalf of the
Company or any Indemnified Person and (iii) any withdrawal by you pursuant to
Section 3.
11. On the Commencement Date and upon execution of the Supplemental Indenture
("Execution Date"), you shall have received opinions of Xxxxxx, Xxxx & Xxxxxxxx
LLP in the form set forth in Exhibit C , each dated the date of delivery and
addressed to the Solicitation Agent.
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12. In the event that any provision hereof shall be determined to be invalid or
unenforceable in any respect, such determination shall not affect such provision
in any other respect or any other provision hereof, which shall remain in full
force and effect.
13. This Agreement may be executed in two or more separate counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
14. This Agreement, including any right to indemnity or contribution hereunder,
shall inure to the benefit of and be binding upon the Company, you and the other
Indemnified Persons (as defined in Section 10) and their respective successors
and assigns. Nothing in this Agreement is intended, or shall be construed, to
give to any other person or entity any right hereunder or by virtue hereof.
15. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York. This Agreement constitutes the entire agreement
among the parties hereto with respect to the subject matter hereof.
16. The Company agrees that any reference to you in the Consent Solicitation
Material, or in any other release or communication relating to the Consent
Solicitations, is subject to your prior written approval, which approval shall
not be unreasonably withheld.
17. All notices and other communications required or permitted to be given under
this Agreement shall be in writing and shall be deemed to have been duly given
if delivered personally to the parties hereto as follows:
(a) If to you:
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: High Yield Liability Management Department
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with a copy to:
Xxxxxx Xxxxxx & Xxxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy No.: (000) 000-0000
Attn: Xxxxxx X. Xxxxxxx, Esq.
(b) If to the Company:
X.X. Xxxxxx, Inc.
0000 Xxxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxx, Xxxxx 00000
Telecopy No.: (000) 000-0000
Attn: Xxxx Xxxxxxxxxxxx, Esq.
with a copy to:
Xxxxxx, Xxxx & Xxxxxxxx LLP
0000 XxXxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Telecopy No.: (000) 000-0000
Attn: Xxxxx X. Xxxxxxxxx, Esq.
18. You and the Company each waive any right to trial by jury in any action,
claim, suit or proceeding with respect to your engagement hereunder. The Company
hereby (a) submits to the jurisdiction of any New York State or Federal court
sitting in New York City with respect to any actions and proceedings arising out
of or relating to this Agreement, (b) agrees that all claims with respect to
such actions or proceedings may be heard and determined in such New York State
or Federal court, (c) waives the defense of any inconvenient forum and (d)
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law.
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Please indicate your willingness to act as Solicitation Agent
on the terms set forth herein and your acceptance of the foregoing provisions by
signing in the space provided below for that purpose and returning to us a copy
of this letter, whereupon this letter shall constitute a binding agreement
between us.
Very truly yours,
X.X. XXXXXX, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Xxxxxx X. Xxxxxx
Executive Vice President, Treasurer
and Chief Financial Officer
Accepted as of the date first above written:
XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ Xxxxxxxx X. XxXxxxx
-------------------------------------
Name: Xxxxxxxx X. XxXxxxx
Title: Managing Director
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EXHIBIT A
[Consent Solicitation Statement]
X.X. XXXXXX, INC.
CONSENT SOLICITATION STATEMENT
For Consent Solicitation Expiring 5:00 P.M., New York City Time,
on June 8, 2000, Unless Extended
$150,000,000 Aggregate Principal Amount of 10-1/2% Senior Notes Due 2005
CUSIP Number 00000XXX0
We are sending this consent solicitation statement to the holders of
our outstanding 10-1/2% Senior Notes Due 2005 to solicit their consent to an
amendment to the indenture governing the notes to permit the issuance of up to
an additional $50,000,000 aggregate principal amount of the notes.
We seek to issue additional 10-1/2% senior notes in the near future for
the principal purpose of paying down outstanding borrowings under our existing
revolving credit facility, which will increase availability under the revolving
credit facility, and for general corporate purposes. The proposed amendment
would permit us to issue the additional notes by increasing the size of the
issue from $150,000,000 to $200,000,000. Any issuance of the additional notes
will comply with the debt incurrence tests contained in the indenture. The
additional notes would comprise part of the same series of securities as the
outstanding 10-1/2% senior notes.
Approval of the amendment requires the consent of holders of at least a
majority in aggregate principal amount of the outstanding 10-1/2% senior notes
and does not require the consent of holders of any other series of notes issued
under the indenture.
Subject to the terms and conditions set forth in this consent
solicitation statement and in the accompanying consent form, we will pay to each
holder who validly consents to the proposed amendment a cash consent fee equal
to $1.25 for each $1,000 in principal amount of 10-1/2% senior notes for which
consents have been properly executed, validly delivered, and not revoked as of
the time of the expiration of this solicitation. We will pay such cash to such
holder or such person that the holder designates on the accompanying consent
form. We will make these payments, however, only if we and the trustee enter
into the amendment and we issue any additional notes.
Any holder may revoke its consent as to all or a portion of its notes;
however, revocation will be effective only if the trustee receives the notice of
revocation before the date the amendment becomes effective. This solicitation
will expire at 5:00 p.m., Eastern Time, on June 8, 2000. We may, however, extend
the expiration date on a daily basis or otherwise, in which event the term
"expiration date" will mean the time and date to which we have extended this
solicitation.
This consent solicitation statement does not constitute a solicitation
of a consent in any jurisdiction in which, or to or from any person to or from
whom, it is unlawful to make such a solicitation.
The date of this consent solicitation statement is May 27, 2000.
THE COMPANY
We are a national homebuilder. We construct and sell single-family
homes in metropolitan areas of the Mid-Atlantic, Midwest, Southeast, Xxxxxxxxx
xxx Xxxx xxxxxxx xx xxx Xxxxxx Xxxxxx. We offer high quality homes, designed
principally for first-time and move-up home buyers. Our homes generally range in
size from 1,000 to 5,000 square feet and range in price from $80,000 to
$600,000. For the year ended September 30, 1999, we closed 18,395 homes with an
average sales price approximating $166,100. For the six months ended March 31,
2000, we closed 8,856 homes with an average sales price approximating $176,400.
We are one of the largest and most geographically diversified
homebuilders in the United States, with operating divisions in 23 states and 40
markets as of March 31, 2000. The markets we operate in include: Albuquerque,
Atlanta, Austin, Birmingham, Charleston, Charlotte, Chicago, Cincinnati,
Columbia, Dallas/Fort Worth, Denver, Greensboro, Greenville, Hilton Head,
Houston, Jacksonville, Killeen, Las Vegas, Los Angeles, Louisville,
Minneapolis/St. Xxxx, Xxxxxx Beach, Nashville, New Jersey, Newport News,
Orlando, Pensacola, Phoenix, Portland, Raleigh/Durham, Richmond, Sacramento,
Salt Lake City, San Antonio, San Diego, St. Louis, South Florida, Tucson,
suburban Washington, D.C. and Wilmington.
We build homes under the following names: X.X. Xxxxxx, Arappco, Cambridge,
Continental, Xxxxxx, Xxxxxx, Xxxxxxx, Xxx Xxxxxx, Regency, RMP, SGS, Torrey and
Trimark.
Our principal executive offices are at 0000 Xxxxxxxxx Xxxx., Xxxxx 000,
Xxxxxxxxx, Xxxxx 00000, our telephone number is (000) 000-0000, and our internet
address is xxx.xxxxxxxx.xxx.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
This consent solicitation statement incorporates by reference the
documents listed below that we have previously filed with the Securities and
Exchange Commission and that are not included in or delivered with this
document. They contain important information about our company and its financial
condition.
FILING PERIOD
Annual Report on Form 10-K Year ended September 30, 1999
Quarterly Reports on Form 10-Q Quarter ended December 31, 2000
Quarter ended March 31, 2000
Current Report on Form 8-K Filed March 17, 2000
Pages two through eleven, "Election Filed December 10, 2000
of Directors", through Executive
Compensation-Compensation Committee
Interlocks and Insider Participation"
and page sixteen, "Section 16(a)
Beneficial Ownership Reporting
Compliance," contained in our Proxy
Statement dated December 10, 1999,
relating to our 2000 annual meeting of
stockholders and incorporated into our
Annual Report on Form 10-K
We also incorporate by reference additional documents that we may file
with the SEC between the date of this consent solicitation statement and the
date the proposed amendment becomes effective.
The information incorporated by reference is considered to be part of
this consent solicitation statement, except for any information that is
superseded by information that is included directly in this document.
-2-
You can obtain any of the documents incorporated by reference in this
document from us without charge, excluding any exhibits to those documents
unless the exhibit is specifically incorporated by reference as an exhibit to
this consent solicitation statement. You can obtain documents incorporated by
reference in this consent solicitation statement by requesting them in writing
or by telephone from us at the following address:
Assistant to Corporate Counsel
X.X. Xxxxxx, Inc.
0000 Xxxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxx, Xxxxx 00000
(000) 000-0000, ext. 1046
THE PROPOSED AMENDMENT
We issued $150,000,000 aggregate principal amount of our 10-1/2% senior
notes on March 21, 2000. We seek the proposed amendment in order to issue in the
near future up to an additional $50,000,000 aggregate principal amount of our
10-1/2% senior notes. The indenture currently limits the principal amount of
these notes to $150,000,000. The proposed amendment would increase this limit by
$50,000,000 if we are successful in issuing any additional notes. If we are not
successful in issuing any additional notes and we so advise the trustee, the
limit would remain at $150,000,000. If the limit is increased but we do not
issue all of the additional notes, the indenture would permit us to issue the
balance of the additional notes in the future.
We would use the net proceeds of the issuance of any additional notes
to pay down outstanding borrowings under our existing revolving credit facility,
which will increase availability under our revolving credit facility, and for
general corporate purposes.
Any issuance of the additional notes will comply with the debt
incurrence tests contained in the indenture and would comprise part of the same
series of securities as the outstanding 10-1/2% senior notes.
-3-
CAPITALIZATION
The following table sets forth our capitalization at March 31, 2000, as
adjusted to reflect the issuance of an additional $50,000,000 aggregate
principal amount of notes and the application of the estimated net proceeds of
the issuance.
As of March 31, 2000
Actual Adjusted(1)
($ in thousands)
----------------------------
Homebuilding debt:
Notes payable under revolving credit facility(2) $500,000 $450,880
Notes payable"other 8,617 8,617
8 3/8% senior notes due 2004, net 148,348 148,348
10 1/2% senior notes due 2005, net 149,415 199,415
10% senior notes due 2006, net 147,338 147,338
8% senior notes due 2009, net 383,014 383,014
------- -------
Total homebuilding debt 1,336,732 1,337,462
Notes payable under mortgage warehouse facility 76,800 76,800
------ ------
Total debt 1,413,532 1,414,262
--------- ---------
Stockholders' equity:
Preferred stock, $.10 par value; 30,000,000
shares authorized, no shares issued -- --
Common stock, $.01 par value; 200,000,000
shares authorized, 64,396,305 shares, issued
and outstanding 644 644
Additional capital 420,643 420,643
Retained earnings 477,737 477,737
Treasury stock (36,947) (36,947)
-------- --------
Total stockholders' equity 862,077 862,077
------- -------
Total capitalization $2,275,609 $2,276,239
========== ==========
-----------
(1) Adjusted to reflect the sale of $50,000,000 of additional notes and the
application of the estimated net proceeds to repay debt under our
revolving credit facility.
(2) We have an $825,000,000 unsecured revolving credit facility with 12
financial institutions. The revolving credit facility matures in April
2002, and includes $50,000,000 reserved for use as standby letters of
credit. Additionally, we have another $25,000,000 standby letter of
credit agreement and a $22,500,000 non-renewable letter of credit
facility acquired in connection with an acquisition.
-4-
THE SOLICITATION
Terms of the Consent Solicitation
We will pay to each holder, who delivers and does not revoke the
enclosed form of consent prior to 5:00 p.m., Eastern time, on the expiration
date, a consent payment of $1.25 in cash for each $1,000 in principal amount of
the notes as to which such consent is given if the following conditions are met:
- the requisite number of consents is received,
- we and the trustee execute a supplemental indenture containing
the proposed amendment, and
- we issue any additional 10-1/2% senior notes.
We will pay the consent payment promptly after the later of the
expiration date or the closing of any offering of additional notes. If we do not
issue any additional 10-1/2% senior notes, no consent fee will be paid.
Holders who do not properly or timely consent to the proposed
amendment, or whose consent is revoked, will not receive a consent payment even
though the proposed amendment, if it becomes operative, will be binding upon
them.
A duly executed consent (unless revoked as described in this consent
solicitation statement) shall bind the holders executing the same and any
subsequent registered holder or transferee of the notes to which such consent
relates. Any holder or subsequent holder may revoke its consent as to all or a
portion of its notes; however, such revocation shall be effective only if the
trustee receives the notice of revocation before the date the amendment becomes
effective.
The term "holder" means a registered holder of 10-1/2% senior notes as
reflected in the records of the trustee. We anticipate that Cede & Co., as
nominee holder of the 10-1/2% senior notes for the Depository Trust Company,
will execute an authorization for DTC's participants to consent (or revoke
consents) with respect to the notes owned by the participants and their
customers. In such case, all references to "holder" shall, unless otherwise
specified, include such participants specified on the DTC position listing as of
the date indicated.
The delivery of a consent to the proposed amendment will not affect a
holder"s right to sell or transfer the notes.
Upon receipt of the requisite consents, which may occur before the
expiration date, we and the trustee may then execute the supplemental indenture
containing the proposed amendment. The date and time at which such supplemental
indenture is executed is referred to herein as the "effective date." Holders
delivering consents after the effective date but prior to the expiration date
will nonetheless be entitled to receive the consent payment if all the other
conditions are satisfied. However, holders may revoke consents only prior to the
effective date, which may occur before the expiration date. If the requisite
consents are not received by 5:00 p.m., New York City time, on the expiration
date, then we, in our sole discretion, may elect to the extend the expiration
date, from time to time, in which case all such consents shall remain valid
until the date and time to which the expiration date is so extended subject only
to revocation as provided in this consent solicitation statement.
We expressly reserve the right to:
- extend the expiration date from time to time,
- terminate this consent solicitation at any time prior the
expiration date whether or not the requisite consents have
been obtained, and
- amend, at any time or from time to time, the terms of this
consent solicitation.
-5-
Any such extension will be effective if we give oral or written notice
to MacKenzie Partners, Inc., the processing agent for this consent solicitation,
no later than 9:00 a.m., New York City time, on the first business day following
any previously announced expiration date, with any oral notice followed by
written notice, facsimile or otherwise, no later than 2:00 p.m., New York City
time, on such day. Any termination or amendment of this consent solicitation
shall be effective upon written notice, facsimile or otherwise, from us to the
processing agent. As promptly as practicable following any such extension,
termination, or amendment, we will give notice to each holder either in writing
or by press release to a nationally recognized business wire service.
Consent Procedures
Holders who desire to consent to the proposed amendment must so
indicate by marking the appropriate box on the consent included with this
consent solicitation statement, and completing, signing, dating, and delivering
the same to the processing agent in the manner described in this section.
However, if none of the boxes on the consent is checked, but the consent is
otherwise properly completed, signed, dated, and delivered, the holder will be
deemed to have consented to the proposed amendment.
Consents executed by the registered holder of 10-1/2% senior notes must
be executed in exactly the same manner as the name(s) appear(s) on such notes.
If notes to which a consent relates are held by two or more joint holders, all
such holders must sign the consent. If a consent is signed by a trustee,
executor, administrator, guardian, attorney-in-fact, officer of a corporation or
other registered holder acting in a fiduciary or representative capacity, such
person must so indicate when signing and must submit to the processing agent
appropriate evidence, satisfactory to us, of such person"s authority to so act,
along with the consent. If notes are registered in different names, separate
consents must be executed by each such registered holder. Consents by DTC
participants whose notes are registered in the name of Cede & Co. must be signed
in the manner in which their names appear on the position listing of Cede & Co.
with respect to such notes.
Subject to the terms and conditions set forth in this consent
solicitation statement, we will accept all properly completed and executed
consents received by the processing agent and not subsequently revoked prior to
5:00 p.m., New York City time, on the expiration date. All questions as to
validity, form, eligibility, time of receipt, and acceptance of consents and
revocation will be resolved by us in our sole discretion and our determination
will be final and binding, subject only to review and approval of the processing
agent with respect to proof of execution and ownership. We reserve the right to
reject any and all consents not validly given or the acceptance of which could,
in our opinion or in the opinion of our counsel, be unlawful. We also reserve
the right, subject to review and approval of the processing agent, to waive any
defects, irregularities, or conditions of delivery as to particular consents.
Unless waived, all such defects and irregularities must be cured prior to the
expiration date, and any consent with such defect or irregularity will not be
deemed to have been properly given until so cured or waived. Neither we, the
processing agent, nor any other person shall be under any duty to give
notification of any such defects or irregularities, nor shall any of us incur
any liability for failure to give such notification. Our interpretation of the
terms and conditions of this consent solicitation shall be conclusive and
binding. After the effective date of the amendment, all holders, including
non-consenting holders and all subsequent holders, of the 10-1/2% senior notes
will be bound by the proposed amendment.
Revocation of Consents
Consents with respect to the proposed amendment may be revoked by a
holder of the notes to which such consent relates if the trustee receives the
notice of revocation before the date the amendment becomes effective. Consents
may not be revoked on or after the effective date. For purposes of this
solicitation, notices of revocation received by the processing agent will be
deemed to have been received by the trustee. Notices of revocation given by a
holder must be completed, signed, dated, and delivered to the processing agent
(accompanied by a proxy or other required documents) in the same manner as would
be required of a consent by such holder. Unless waived, all defects and
irregularities in a revocation must be cured prior to the effective date.
-6-
Solicitation Agent and Processing Agent
We have retained Xxxxxx Xxxxxxx & Co., Incorporated to act as our
solicitation agent in connection with this consent solicitation. Xxxxxx Xxxxxxx
will not receive a separate fee for acting as solicitation agent; however, it
will act as the underwriter with respect to the proposed offering of the
additional 10-1/2% senior notes for which it will receive customary
compensation. The solicitation agent will receive reimbursement for its
reasonable out-of-pocket expenses (including reasonable fees and disbursements
of its counsel) incurred in connection with the consent solicitation.
We have retained MacKenzie Partners, Inc. as our processing agent in
connection with this consent solicitation. The processing agent will receive and
tabulate consents and revocations, if any. The processing agent will receive
customary fees for such services and reimbursement for its reasonable
out-of-pocket expenses.
Requests for additional copies of this consent solicitation statement
and the other documents enclosed with it may be directed to our solicitation
agent at its address or telephone number set forth on the back cover of this
consent solicitation statement.
CERTAIN FEDERAL INCOME TAX CONSIDERATIONS
General
The following discussion summarizes certain federal income tax
consequences arising out of the receipt of the consent payment and adoption of
the proposed amendment. The discussion is based on the Internal Revenue Code of
1986, as amended, Treasury Regulations thereunder, Internal Revenue Service
rulings and judicial decisions, all as in effect on the date hereof, and all of
which are subject to change, possibly retroactively. The discussion does not
address all aspects of federal income taxation that may be relevant to
particular holders in light of their personal circumstances or to certain types
of holders subject to special treatment under the federal income tax laws (e.g.,
financial institutions, insurance companies, regulated investment companies,
real estate investment trusts, foreign persons or entities, dealers in
securities or currencies, tax-exempt organizations, broker-dealers, taxpayers
subject to the alternative minimum tax and persons holding the notes as part of
a straddle, hedge or conversion transaction) and does not discuss any aspect of
state, local or foreign taxation. The discussion assumes that holders are United
States persons who hold the notes as "capital assets" (generally, property held
for investment) within the meaning of Section 1221 of the Internal Revenue Code.
The following summary of federal income tax considerations is included
herein for general information only. The tax treatment of a holder might vary
depending upon such holder's particular situation. Accordingly, holders of the
notes should consult their own tax advisors as to the specific tax consequences
of granting or withholding consent to the proposed amendment.
Treatment of Consent Payments
There is no direct authority with respect to the federal income tax
consequences of receiving the consent payment. A holder who receives the consent
payment might be treated as receiving a fee to obtain such holder's consent to
certain transactions (or a waiver of rights) or additional interest with respect
to the notes. In either event, such holder would recognize ordinary taxable
income equal to the amount of cash received.
Alternatively, the consent payment might be treated as received in
exchange for certain rights of the holders. In such event, holders who received
the consent payment would reduce their tax basis for the notes by an amount
equal to the amount of cash they received, and receipt of the consent payment
therefor would not be currently recognized as taxable income. Instead, any such
basis reduction would cause such holder to recognize additional capital gain
(or, under the market discount rules, ordinary income) on a sale or other
disposition of the notes. It is also possible that such basis reduction could
cause such holder to recognize ordinary income, either upon disposition of the
notes or over the remaining term of the notes.
-7-
We anticipate that we will treat the consent payment for federal income
tax purposes as a fee paid to the holders. Accordingly, we will be required to
provide information statements to the consenting holders and to the IRS
reporting the consent payment.
Proposed Amendment
The federal income tax consequences of the adoption of the proposed
amendment depend upon whether an exchange of notes is deemed to have occurred as
a result thereof. If the proposed amendments are deemed to change to a material
extent the terms of the notes, adoption of the proposed amendments would result
in a constructive exchange for federal income tax purposes of new modified notes
for the existing notes which, depending upon the circumstances, could be taxable
to the holders. However, we believe that the proposed amendments will not result
in such a constructive exchange for federal income tax purposes. Accordingly,
holders would not recognize any gain or loss as a result of the proposed
amendment becoming effective.
Backup Withholding
Certain noncorporate holders may be subject to backup withholding at
the rate of 31% with respect to the consent payment. Generally, backup
withholding is applied only when (a) the taxpayer (i) fails to furnish or
certify its correct taxpayer identification number to the payor in the manner
required or (ii) under certain circumstances fails to certify that it has not
been notified by the IRS that it is subject to backup withholding for failure to
report certain payments or (b) the IRS has notified the payor that the taxpayer
identification number furnished by the taxpayer is incorrect or has otherwise
notified the payor that backup withholding is required. Amounts withheld under
the backup withholding rules will be allowed as a refund or credit against a
holder's federal income tax liability, provided that such holder furnishes the
required information to the IRS.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the Securities and Exchange Commission under the
Securities Exchange Act of 1934. You may read and copy this information at the
following locations of the SEC:
Judiciary Plaza, Room 10024 Seven World Trade Center, Citicorp Center
000 Xxxxx Xxxxxx, X.X. Xxxxxx Xxxxx 0000 000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxxx, X.X. 00000 New York, New York 10048 Suite 1400
Xxxxxxx, Xxxxxxxx 00000
You can also obtain copies of this information by mail from the Public
Reference Room of the SEC, 000 Xxxxx Xxxxxx, X.X., Xxxx 00000, Xxxxxxxxxx, X.X.
00000, at prescribed rates. You may obtain information on the operation of the
Public Reference Room by calling the SEC at (800) SEC-0330.
The SEC also maintains an internet world wide web site that contains
reports, proxy statements and other information about issuers, like us, who file
electronically with the SEC. The address of that site is xxxx://xxx.xxx.xxx.
You can also inspect reports, proxy statements and other information
about us at the offices of the New York Stock Exchange, Inc., 00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
-8-
EXHIBIT A
PROPOSED AMENDMENT
The following is a summary of the proposed amendment contained in the
tenth supplemental indenture. The summary is qualified in its entirety by
reference to the indenture and the supplements thereto, including the
definitions therein of certain terms used below and those terms that are made
part of the indenture by reference to the Trust Indenture Act of 1939, as
amended.
The number "$150,000,000" in Article One of the Eighth Supplemental
Indenture is hereby deleted and the following phrase is substituted in
its place: "(i) $150,000,000 until such date and time that the Company
delivers to the Trustee an Officers" Certificate that it intends to
enter into an agreement to issue Notes in addition to the Notes issued
on March 21, 2000; and (ii) $200,000,000 thereafter (provided that this
clause (ii) shall not apply if the Company delivers to the Trustee an
Officers" Certificate that it does not intend to issue any such
additional Notes)."
-9-
Holders who wish to consent should deliver, by regular mail, air courier,
messenger or fax, their properly completed, executed and dated consent forms to
the processing agent in accordance with the instructions set forth herein and
therein. All facsimile transmissions must be followed by delivery of originally
executed consents. The method of delivery of all documents, including consents,
is at the election and risk of the holder. The address of the processing agent
is as follows:
Via Regular Mail, Overnight Delivery, Facsimile or by Hand
MacKenzie Partners, Inc.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxx
Facsimile Transmission:
(000) 000-0000
(Originally executed consents must follow)
Confirm by Telephone:
(000) 000-0000
We have not authorized any person to give any information or make any
representations in connection with this solicitation of consents other than as
set forth herein and, if given or made, such information or representations must
not be relied upon as having been authorized by us. The delivery of this consent
solicitation statement shall not, under any circumstances, create any
implication that the information herein is correct after the date hereof.
Any questions or requests for assistance or additional copies of this
consent solicitation statement or the consent may be directed to the
solicitation agent at its telephone number and location set forth below. You may
also contact your broker, dealer, commercial bank or trust company or other
nominee for assistance covering this consent solicitation.
The Solicitation Agent:
XXXXXX XXXXXXX & CO., INCORPORATED
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Global Leveraged Finance Capital Markets
(000) 000-0000 (toll free)
EXHIBIT B
[Consent Letter]
X.X. XXXXXX, INC.
CONSENT
in respect of its
10-1/2% Senior Notes due 2005
CUSIP Number 00000XXX0
Xxxxxxxx to the Consent Solicitation Statement
dated May 27, 2000
Please return this consent form to the Processing Agent:
Via Regular Mail, Overnight Delivery, Facsimile or By Hand
MACKENZIE PARTNERS, INC.
By Hand Delivery, Mail For Information: By Facsimile Transmission:
or Overnight Courier:
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 (212) 929-5500 (collect)
Attn: Xxxxxx Xxxx (000) 000-0000
(000) 000-0000 (toll-free)
Delivery to an address, or transmission via facsimile, other than as set forth
above will not constitute valid delivery. In no event should a holder deliver
any certificates representing the 10-1/2% senior notes due 2005.
The instructions accompanying this consent should be read carefully
before this consent is completed. Any questions or requests for assistance or
additional copies of the consent solicitation statement or this consent may be
directed to the solicitation agent at its address and telephone number and
location set forth below. You may also contact your broker, dealer, commercial
bank or trust company or other nominee for assistance concerning the consent
solicitation.
The undersigned is the holder of 10-1/2% Senior Notes due 2005 of
X.X. Xxxxxx, Inc. issued under an indenture dated as of June 9, 1997 among
X.X. Xxxxxx, Inc., the guarantors party thereto and American Stock Transfer &
Trust Company, as trustee, as supplemented.
The term "holder" as used herein shall mean a registered holder of
10-1/2% senior notes as reflected in the records of the trustee as of the date
of execution of this consent. X.X. Xxxxxx anticipates that Cede & Co., as
nominee holder of the 10-1/2% senior notes for the Depository Trust Company,
will execute an authorization which will authorize the DTC's participants to
consent with respect to the 10-1/2% senior notes owned by the participants and
their customers and held in the name of Cede & Co. In such case, all references
to "holder" shall, unless otherwise specified, include such participants
specified on the DTC position listing as of the date indicated.
Holders who wish to receive payments in consideration for their consent
of $1.25 per $1,000 principal amount of notes (see payment instructions) in the
event the proposed amendment is approved and the consent fee becomes payable as
provided in the consent solicitation statement must consent prior to 5:00 p.m.,
New York City time, on June 8, 2000, as such date may be extended at the
election of X.X. Xxxxxx, by delivering an executed consent to the processing
agent (and such consent is not revoked prior to the effective date, as defined
-1-
in the consent solicitation statement). Subject to the terms and conditions set
forth in the consent solicitation statement, X.X. Xxxxxx will accept all
properly completed and delivered consents received prior to 5:00 p.m., New York
City time, on June 8, 2000 from the holders of record as of the date of
execution of such consent.
Upon receipt by the processing agent of consents to the proposed
amendment described in the consent solicitation statement from the holders of at
least a majority in aggregate principal amount of the outstanding 10-1/2% senior
notes, X.X. Xxxxxx and the trustee may then execute a supplemental indenture
containing the proposed amendment. The date and time at which such supplemental
indenture is executed is the "effective date." Consents may not be revoked after
the effective date.
As a holder of said 10-1/2% senior notes, the undersigned hereby:
CONSENTS DOES NOT CONSENT
------ ------
with respect to the proposed amendment to be made to the indenture as described
in the consent solicitation statement. If no election is specified, any
otherwise properly completed, signed, dated and delivered consent form will be
deemed a consent to the proposed amendment. By execution hereof, the undersigned
acknowledges receipt of the consent solicitation statement and hereby represents
and warrants that the undersigned is the holder of record or through its nominee
Cede & Co. with respect to the 10-1/2% senior notes specified herein and has
full power and authority to give the consent contained herein. The undersigned
will, upon request, execute and deliver any additional documents deemed by X.X.
Xxxxxx to be necessary or desirable to perfect the undersigned's consent.
Unless otherwise specified by the undersigned, this consent relates to
all 10-1/2% senior notes to which the undersigned is the holder. If this consent
relates to less than all 10-1/2% senior notes as to which the undersigned is a
holder, the specific 10-1/2% senior notes to which this consent relates shall be
identified herein.
This consent, if effective, will be binding upon the holder of the
10-1/2% senior notes who gives such consent and upon any subsequent
transferee(s) of such 10-1/2% senior notes, subject only to a valid revocation
of the consent by the holder or subsequent holders by delivery to the processing
agent of a written notice of revocation prior to the effective date, completed,
signed, dated and delivered to the processing agent in the manner described in
the consent solicitation statement. Consents may not be revoked after the
effective date. The holder shall be entitled to receive consent payments only in
respect of a valid consent which has not been revoked.
-2-
DESCRIPTION OF NOTES TO WHICH CONSENT IS GIVEN
Name(s) and Address(es) of Registered Notes with Respect to Which this Consent
Holder(s)(please fill in, if blank, is Given (Attach additional schedule,
exactly as name(s) appear(s) on Notes) if necessary)
or DTC Participants(s)
Please complete Payment Instructions
on page 4 to ensure prompt payment
of the consent fee
(1) (2) (3) (4)
Certificate Aggregate Principal Amount
or Cede & Principal of Notes to
Co. Account Amount of Which Consent
Number(s) Notes is Given (if
less than all)*
________________________________________________________________________________
Total:
________________________________________________________________________________
* If this consent form relates to less than the aggregate principal amount of
10-1/2% senior notes registered in the name of the registered holder(s), or
held by DTC for the account of DTC participant(s), named above, list the
certificate or account numbers and principal amounts at maturity of notes
to which this consent form relates. Unless otherwise indicated in the
column labeled "Principal Amount of Notes to Which Consent is Given," the
undersigned holder will be deemed to have consented in respect to the
entire aggregate principal amount represented by the 10-1/2% senior notes
indicated in the column labeled "Aggregate Principal Amount of Notes."
IMPORTANT READ CAREFULLY
This consent must be executed by the registered holder(s), or the DTC
participant(s), in exactly the same manner as the name(s) of such holder(s)
appear(s) on the 10-1/2% senior notes or on the position listing of Cede & Co.
If 10-1/2% senior notes to which this consent relates are held by two or more
joint registered holders, all such holders must sign this consent form. If
signature is by a trustee, executor, administrator, guardian, attorney-in-fact,
officer of a corporation, or other person acting in a fiduciary or
representative capacity, such person should so indicate when signing and must
submit proper evidence satisfactory to X.X. Xxxxxx of such person's authority so
to act. Signatures on this consent must be guaranteed by a firm that is a member
of the National Association of Securities Dealers, Inc., or a member of a
registered national securities exchange or by a commercial bank or trust company
having an office in the United States.
SIGN HERE
______________________________________ _______________________________________
(Signature(s))
DTC Participant Number:_____________________________
Dated:__________________________________ _______________________________________
Names:__________________________________ _______________________________________
(Please Print)
Capacity:______________________________________________________________________
Address:_______________________________________________________________________
(including Zip Code)
Area Code and Telephone No. ( ) _________________________________________
Tax Identification or Social Security No.______________________________________
GUARANTEE OF SIGNATURES
Authorized Signature ___________________________________________________
Name and Title:_________________________________________________________
(Please Print)
Dated:__________________________________________________________________
Name of Firm:___________________________________________________________
-3-
PAYMENT INSTRUCTIONS
If (i) the processing agent receives the requisite consents, (ii) X.X.
Xxxxxx, the guarantors party thereto and the trustee execute a supplemental
indenture and (iii) X.X. Xxxxxx issues additional 10-1/2% senior notes, then
promptly after the later of the expiration date or the closing of any offering
of additional notes, X.X. Xxxxxx will cause the trustee will pay to each holder
who has delivered a valid consent prior to the expiration date, and which
consent has not been duly revoked prior to the effective date, a one-time cash
payment in the amount of $1.25 for each $1,000 principal amount of notes as to
which such consent relates.
In order to be valid and effective, a consent must (a) be properly
completed and executed and (b) be timely received by the processing agent and
not thereafter validly revoked as provided in the consent solicitation
statement.
Consent payments will be made by the trustee, on behalf of X.X. Xxxxxx,
by delivery of a check to the holder at its address as it appears on the Cede &
Co. position listing. If you desire the payments to be sent otherwise, please so
indicate below.
PAYMENT INSTRUCTIONS SPECIAL DELIVERY INSTRUCTIONS
(See Instruction 6) (See Instruction 6)
Please complete in order to ensure To be completed ONLY if the checks for
prompt and accurate payment of consent the consent payments, issued in the
consent fee. name of undersigned, are to be sent to
someone other than the party listed
Issue checks to: under payment instructions.
Name:_______________________________
(Please Print) Mail checks to:
Address:____________________________
____________________________________ Name:_________________________________
(Including Zip Code) (Please Print)
Contact:____________________________ Address:______________________________
Telephone:__________________________ ______________________________________
(Including Zip Code)
__________________________________ Contact:______________________________
(Taxpayer Identification or Telephone:____________________________
Social Security Number)
(Complete Form W-9) ____________________________________
(Taxpayer Identification or
Social Security Number)
(Complete Form W-9)
IMPORTANT TAX INFORMATION
Under the Federal income tax law, a holder whose consent is given for
payment is required by law to provide the trustee (as payer) with such holder's
correct Taxpayer Identification Number (TIN) on Substitute Form W-9 below. If
such holder is an individual, the TIN is his or her social security number. If
the trustee is not provided with the correct TIN, a $50 penalty may be imposed
by the Internal Revenue Service, and payments may be subject to backup
withholding.
Certain holders (including, among others, corporations) are not subject
to these backup withholding and reporting requirements. Exempt holders should
indicate their exempt status on Substitute Form W-9. In order for a foreign
individual to qualify as an exempt recipient, such individual must submit a
statement, signed under penalties of perjury, attesting to such individual's
exempt status. Form of such statements can be obtained from the solicitation
agent. See the enclosed "Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9" for additional instructions.
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If backup withholding applies, 31% of any payments made to the holder
or other payee will be required to be withheld. Backup withholding is not an
additional tax, any amounts to withheld may be credited against the federal
income tax liability of the holder subject to the withholding. If withholding
results in an overpayment of taxes, a refund may be obtained from the Internal
Revenue Service.
Purpose of Substitute Form W-9
To prevent backup withholding on payments made with respect to
consents, the holder is required to notify the trustee of such holder's correct
TIN by completing the form below, certifying that the TIN provided on the
Substitute Form W-9 is correct (or that such holder is awaiting a TIN) and that
(a) such holder is exempt from backup withholding, or (b) such holder has not
been notified by the Internal Revenue Service that he is subject to backup
withholding as a result of a failure to report all interest or dividends or (c)
the Internal Revenue Service has notified such holder that such holder is no
longer subject to backup withholding. If a holder indicates that he is awaiting
a TIN and the trustee is not provided with a TIN within 60 days, the trustee
will withhold 31% of the payments payable to the holder until a TIN is provided
to the trustee.
What Number to Provide
The holder is required to give the trustee the TIN (i.e., social
security number or employer identification number) of the registered holder of
the 10-1/2% senior notes for which the consent is given hereby. If the 10-1/2%
senior notes are held in more than one name or are not held in the name of the
actual owner, consult the enclosed "Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9" for additional guidance.
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PAYER'S NAME: American Stock Transfer & Trust Company
SUBSTITUTE Part 1 - PLEASE PROVIDE YOUR TIN IN THE _________________________
BOX AT RIGHT AND CERTIFY BY SIGNING AND Social Security Number
Form W-9 DATING BELOW OR
_________________________
Employer Identification Number
Part 2 -Certification Part 3 -
Under Penalties of Perjury, I certify that
(1) The number shown on this form is my Awaiting TIN____
correct Taxpayer Identification Number
(or I am waiting for a number to be
issued to me) and
(2) I am not subject to backup withholding Part 4 -
either because (a) I am exempt from
backup withholding or (b) I have not Exempt ______
been notified by the IRS that I am
subject to backup withholding as a
result of failure to report all interest
or dividends, or (c) the IRS has notified
me that I am no longer subject to backup
withholding.
Department of Treasury Certification instructions - You must cross out item
Internal Revenue Service (2) in Part 2 below if you have been notified by the
IRS that you are subject to backup withholding because
of underreporting interest or dividends on your tax
Payees Request for return. However, if after being notified by the IRS
Taxpayer Identification that you were subject to backup withholding you
Number(TIN) received another notification from the IRS stating
that you are no longer subject to backup withholding,
do not cross out item (2). If you are exempt from
backup withholding, check the box in Part 4 below.
Please fill in your name
and address below.
SIGNATURE______________________________________ DATE________________________
NAME___________________________________________
ADDRESS________________________________________
NOTE: FAILURE TO COMPLETE AND RETURN THE FORM MAY RESULT IN BACKUP
WITHHOLDING OF 31% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE CONSENT
SOLICITATION. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF
TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX IN PART 3 OF
THE SUBSTITUTE FORM W-9.
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification
number has not been issued to me, and either (a) I have mailed or delivered an
application to receive a taxpayer identification number to the appropriate
Internal Revenue Service Center or Social Security Administration Office or (b)
I intend to mail or deliver an application in the near future. I understand that
if I do not provide a taxpayer identification number within 60 days, 31% of all
reportable payments made to me thereafter will be withheld until I provide a
number.
_____________________________________ _____________________________, 2000
Signature Date
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EXHIBIT C
(i) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
(ii) This Agreement has been duly authorized, executed and delivered by the
Company.
(iii) The execution, delivery and performance of this Agreement by the Company,
the execution, delivery and performance of the Supplemental Indenture and the
Indenture as supplemented by the Supplemented Indenture by the Issuers and the
compliance by the Company with all of the provisions of this Agreement will not,
to such counsel's knowledge, conflict with or result in a material breach or
violation of any of the terms or provisions of, or constitute a material default
under, any indenture, mortgage, deed of trust, loan agreement or other material
agreement or instrument listed as an exhibit to its Annual Report on Form 10-K
for the fiscal year ended September 30, 1999 or to any subsequent filing under
the Exchange Act or the Securities Act, nor will such actions result in any
violation of the provisions of the charter or by-laws of the Company or any
statute or, to such counsel's knowledge, any order, rule or regulation known to
such counsel of any court or governmental agency or body having jurisdiction
over the Company or any of its property or assets; and no consent, approval,
authorization or order of, or filing or registration with, any such court or
governmental agency or body is required for the execution, delivery and
performance of this Agreement or the Supplemental Indenture by the Company.
[Commencement Date:
(iv) Each of the Supplemental Indenture and the Indenture as supplemented by the
Supplemental Indenture has been duly authorized by the Company. When the
Supplemental Indenture is executed and delivered, the Supplemental Indenture
will have been duly executed and delivered by the Company, and each of the
Supplemental Indenture and the Indenture as supplemented by the Supplemental
Indenture will be a valid and binding agreement of the Company, enforceable in
accordance with its terms except as (a) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors, rights
generally and (b) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability.]
[Execution Date:
(iv) Each of the Supplemental Indenture and the Indenture as supplemented by the
Supplemental Indenture has been duly authorized, executed and delivered by the
Issuers and is a valid and binding agreement of the Issuers, enforceable in
accordance with its terms except as (a) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors, rights
generally and (b) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability.]
(v) The Supplemental Indenture conforms in all material respects to the
description thereof in the Consent Solicitation Material.
(vi) The consummation by the Company of the Consent Solicitation in the manner
described in the Solicitation will not require registration under the Securities
Act.
In rendering such opinion, such counsel may state that its
opinion is limited to the Federal laws of the United States of America, the laws
of the States of Texas and New York and the General Corporation Law of the State
of Delaware.
[Commencement Date:
Such counsel shall also state that (x) such counsel has acted
as special counsel to the Company in connection with the preparation of the
Consent Solicitation Statement and during the course of the preparation of the
Consent Solicitation Statement, such counsel participated in conferences with
representatives of the Company, the Company's internal counsel, and its
accountants and your representatives and at which conferences the contents of
the Consent Solicitation Statement and related matters were discussed, and (y)
based on the foregoing, no facts have come to the attention of such counsel
which lead it to believe that (I) the Consent Solicitation Statement (except as
to financial data (and related notes thereto) and statistical data and the
financial statements and related schedules contained or incorporated by
reference therein), as of its date, contains any untrue statement of a material
fact or omits to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading or (II) any document incorporated by reference into the Consent
Solicitation Statement or any amendment or supplement thereto made by the
Company prior to the Commencement Date, when they were filed with the
Commission, as the case may be, contained (except as to financial and data (and
related notes thereto) and statistical data and the financial statements and
related schedules contained or incorporated by reference therein) an untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading. The foregoing statement may be qualified by a
statement to the effect that such counsel has not independently verified the
accuracy, completeness or fairness of the statements contained in the Consent
Solicitation Statement or incorporated by reference therein, and such counsel is
not passing upon and such counsel does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the Consent
Solicitation Statement.
[Execution Date:
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Such counsel shall also state that (x) such counsel has acted
as special counsel to the Company in connection with the preparation of the
Consent Solicitation Statement and during the course of the preparation of the
Consent Solicitation Statement, such counsel participated in conferences with
representatives of the Company, the Company's internal counsel, and its
accountants and your representatives and at which conferences the contents of
the Consent Solicitation Statement and related matters were discussed, and (y)
based on the foregoing, no facts have come to the attention of such counsel
which lead it to believe that (I) the Consent Solicitation Statement (except as
to financial data (and related notes thereto) and statistical data and the
financial statements and related schedules contained or incorporated by
reference therein), as of the date hereof, contains any untrue statement of a
material fact or omits to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading or (II) any document incorporated by reference into the Consent
Solicitation Statement or any amendment or supplement thereto made by the
Company prior to the date hereof, when they were filed with the Commission, as
the case may be, contained (except as to financial and data (and related notes
thereto) and statistical data and the financial statements and related schedules
contained or incorporated by reference therein) an untrue statement of a
material fact or omitted to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading. The foregoing statement may be qualified by a statement to the
effect that such counsel has not independently verified the accuracy,
completeness or fairness of the statements contained in the Consent Solicitation
Statement or incorporated by reference therein, and such counsel is not passing
upon and such counsel does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Consent Solicitation
Statement.
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