Exhibit 99.6
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HUB INTERNATIONAL LIMITED PARTNERSHIP
5.71% Amended and Restated Series A Senior Notes due April 4, 2011
6.16% Amended and Restated Series B Senior Notes due June 15, 2013
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AMENDED AND RESTATED NOTE PURCHASE AGREEMENT
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Dated as of April 4, 2006
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TABLE OF CONTENTS
SECTION HEADING PAGE
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SECTION 1. BACKGROUND; AMENDMENT AND RESTATEMENT OF EXISTING NOTE
PURCHASE AGREEMENTS AND EXISTING NOTES; AND EFFECTIVE DATE............ 1
Section 1.1. Background............................................. 1
Section 1.2. Amendment and Restatement of Existing Note Purchase
Agreements.......................................... 1
Section 1.3. Amendment and Restatement of Existing Notes............ 2
Section 1.4. Agreement and Consent of the Noteholders............... 2
Section 1.5. Defined Terms, Etc..................................... 2
Section 1.6. Several Obligations.................................... 2
Section 1.7. Effect of Amendment and Restatement.................... 2
Section 1.8. Effective Date......................................... 2
Section 1.9. Survival of Payment Obligations........................ 3
SECTION 2. [INTENTIONALLY OMITTED]....................................... 3
SECTION 3. [INTENTIONALLY OMITTED]....................................... 3
SECTION 4. CONDITIONS TO EFFECTIVE DATE.................................. 3
Section 4.1. Guaranty Agreement..................................... 4
Section 4.2. Termination of Existing Credit Agreement and Bridge
Loan Credit Agreement; New Credit Agreement......... 4
Section 4.3. 2006 Note Agreement.................................... 4
Section 4.4. Representations and Warranties......................... 4
Section 4.5. Performance; No Default................................ 4
Section 4.6. Compliance Certificates................................ 4
Section 4.7. Opinions of Counsel.................................... 5
Section 4.8. Purchase Permitted by Applicable Law, Other Agreements
Etc................................................. 5
Section 4.9. Related Transactions................................... 5
Section 4.10. Confirmation under Subordinated Debentures............. 6
Section 4.11. Review of Insurance Broker Litigation and
Investigations...................................... 6
Section 4.12. Payment of Special Counsel Fees........................ 6
Section 4.13. Private Placement Numbers.............................. 6
Section 4.14. Reorganization; Changes in Corporate Structure......... 6
Section 4.15. Amendment Fee.......................................... 6
Section 4.16. Proceedings and Documents.............................. 6
Section 4.17. Payment of Outstanding Interest Under the Existing
Notes............................................... 7
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE ISSUER.................. 7
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Section 5.1. Organization; Power and Authority...................... 7
Section 5.2. Authorization, Etc..................................... 7
Section 5.3. Compliance with Laws, Other Instruments, Etc........... 7
Section 5.4. Governmental Authorizations, Etc....................... 8
Section 5.5. Compliance with ERISA.................................. 8
Section 5.6. Private Offering by the Issuer......................... 8
Section 5.7. Use of Proceeds; Margin Regulations.................... 8
Section 5.8. Foreign Assets Control Regulations, Etc................ 9
Section 5.9. Status under Certain Statutes.......................... 9
Section 5.10. Notes Rank Pari Passu.................................. 9
SECTION 6. REPRESENTATIONS OF THE NOTEHOLDERS............................ 9
Section 6.1. Purchase for Investment................................ 9
Section 6.2. Source of Funds........................................ 9
SECTION 7. INFORMATION AS TO ISSUER...................................... 11
Section 7.1. Financial and Business Information..................... 11
Section 7.2. Officer's Certificate.................................. 11
Section 7.3. Inspection............................................. 12
SECTION 8. PREPAYMENT OF THE NOTES....................................... 12
Section 8.1. Required Prepayments................................... 12
Section 8.2. Optional Prepayments with Make-Whole Amount............ 13
Section 8.3. Allocation of Partial Prepayments...................... 13
Section 8.4. Maturity; Surrender, Etc............................... 14
Section 8.5. Purchase of Notes...................................... 14
Section 8.6. Make-Whole Amount for Notes............................ 14
Section 8.7. Offer to Prepay Notes in the Event of a Debt Prepayment
Application......................................... 16
Section 8.8. Payments Free and Clear of Taxes....................... 16
SECTION 9. AFFIRMATIVE COVENANTS......................................... 18
Section 9.1. Compliance with Parent Company Guaranty Affirmative
Covenants........................................... 18
Section 9.2. Notes to Rank Pari Passu............................... 18
SECTION 10. NEGATIVE COVENANTS........................................... 18
Section 10.1. Limitation on Subsidiary Debt.......................... 19
Section 10.2. Limitation on Priority Debt............................ 20
Section 10.3. Limitation on Liens.................................... 20
Section 10.4. Merger, Consolidation, Etc............................. 22
Section 10.5. Sale of Assets, Etc.................................... 24
Section 10.6. Sale-and-Leasebacks.................................... 24
Section 10.7. Disposal of Ownership of a Subsidiary.................. 25
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Section 10.8. Nature of Business..................................... 25
Section 10.9. Transactions with Affiliates........................... 25
Section 10.10. Sales of Receivables................................... 26
Section 10.11. Most Favored Lender Status............................. 26
Section 10.12. Restricted Payments.................................... 26
Section 10.13. Limitations on Restrictive Agreements.................. 27
SECTION 11. EVENTS OF DEFAULT............................................ 27
SECTION 12. REMEDIES ON DEFAULT, ETC..................................... 30
Section 12.1. Acceleration........................................... 30
Section 12.2. Other Remedies......................................... 31
Section 12.3. Rescission............................................. 31
Section 12.4. No Waivers or Election of Remedies, Expenses, Etc...... 31
SECTION 13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES................ 31
Section 13.1. Registration of Notes.................................. 31
Section 13.2. Transfer and Exchange of Notes......................... 32
Section 13.3. Replacement of Notes................................... 32
SECTION 14. PAYMENTS ON NOTES............................................ 32
Section 14.1. Place of Payment....................................... 32
Section 14.2. Home Office Payment.................................... 33
SECTION 15. EXPENSES, ETC................................................ 33
Section 15.1. Transaction Expenses................................... 33
Section 15.2. Survival............................................... 33
SECTION 16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE
AGREEMENT............................................................. 34
SECTION 17. AMENDMENT AND WAIVER......................................... 34
Section 17.1. Requirements........................................... 34
Section 17.2. Solicitation of Holders of Notes....................... 35
Section 17.3. Binding Effect, Etc.................................... 35
Section 17.4. Notes Held by Parent Company, Etc...................... 35
SECTION 18. NOTICES...................................................... 35
SECTION 19. REPRODUCTION OF DOCUMENTS.................................... 36
SECTION 20. CONFIDENTIAL INFORMATION..................................... 36
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SECTION 21. SUBSTITUTION OF NOTEHOLDER................................... 37
SECTION 22. SUBMISSION TO JURISDICTION, NORMAL RATES, ETC................ 38
Section 22.1. Submission to Jurisdiction............................. 38
Section 22.2. Normal Rates........................................... 38
SECTION 23. MISCELLANEOUS................................................ 38
Section 23.1. Successors and Assigns................................. 38
Section 23.2. Payments Due on Non-Business Days...................... 39
Section 23.3. Severability........................................... 39
Section 23.4. Construction........................................... 39
Section 23.5. Counterparts........................................... 39
Section 23.6. Currency............................................... 39
Section 23.7. Governing Law.......................................... 39
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ATTACHMENTS TO THE NOTE PURCHASE AGREEMENT:
SCHEDULE A -- Information Relating to Noteholders
SCHEDULE B -- Defined Terms
SCHEDULE 4.14 -- Reorganization
SCHEDULE 10.4 -- Existing Liens
EXHIBIT 1 -- Form of 5.71% Amended and Restated Series A Senior Note due
April 4, 2011
EXHIBIT 2 -- Form of 6.16% Amended and Restated Series B Senior Note due
June 15, 2013
EXHIBIT 4.1 -- Form of Guaranty Agreement
EXHIBIT 4.7(a) -- Form of Opinion of Counsel for the General Partner, the Parent
Company and the Issuer
EXHIBIT 4.7(b) -- Form of Opinion of Vice President and Secretary of the Parent
Company
EXHIBIT 4.7(c) -- Form of Opinion of Canadian Counsel to the Parent Company
EXHIBIT 4.7(d) -- Form of Opinion of Special Counsel for the Noteholders
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HUB INTERNATIONAL LIMITED PARTNERSHIP
▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
AMENDED AND RESTATED NOTE AGREEMENT
5.71% Amended and Restated Series A Senior Notes due April 4, 2011
6.16% Amended and Restated Series B Senior Notes due June 15, 2013
Dated as of
April 4, 2006
TO THE NOTEHOLDERS LISTED IN
THE ATTACHED SCHEDULE A:
Ladies and Gentlemen:
Hub International Limited Partnership, a limited partnership organized
under the laws of Delaware (the "Issuer"), agrees with the each Noteholder
listed on the attached SCHEDULE A (the "Noteholders") as follows:
SECTION 1. BACKGROUND; AMENDMENT AND RESTATEMENT OF EXISTING NOTE PURCHASE
AGREEMENTS AND EXISTING NOTES; AND EFFECTIVE DATE.
Section 1.1. Background. Reference is made to those certain Note
Agreements, each dated as of June 1, 2003 (the "Existing Note Purchase
Agreements"), between Hub International Limited, a Canadian corporation (herein
called the "Parent Company"), and, respectively, each Noteholder listed in
SCHEDULE A thereto, under and pursuant to which the Parent Company issued its
5.71% Series A Senior Notes due June 15, 2010 in the aggregate principal amount
of $10,000,000 (the "Series A Notes") and its 6.16% Series B Senior Notes due
June 15, 2013 in the aggregate principal amount of $55,000,000 (the "Series B
Notes"; said Series B Notes together with the Series A Notes being hereinafter
collectively referred to as the "Existing Notes"). Each of the Noteholders and
the Issuer now desire to amend and restate the Existing Note Purchase Agreements
and the Existing Notes in their entirety and to cause the Parent Company to
enter into a Guaranty Agreement pursuant to which the Parent Company will
unconditionally guarantee payment in full of the Notes (as defined in SECTION
1.3). In order to effectuate and reflect the foregoing in the most expeditious
manner, to facilitate dealings with respect to the Existing Notes and the
Existing Note Purchase Agreements and to permit the reorganization and
restructuring more fully described in SCHEDULE 4.14 hereto, the parties hereto
have agreed to amend and restate each of the Existing Notes and the Existing
Note Purchase Agreements.
Section 1.2. Amendment and Restatement of Existing Note Purchase
Agreements. Effective the Effective Date (as hereinafter defined), the Issuer,
by its execution of this
Agreement, hereby agrees and consents to the amendment and restatement in their
entirety of all of the Existing Note Purchase Agreements by and into this
Agreement.
Section 1.3. Amendment and Restatement of Existing Notes. The Issuer, by
its execution of this Agreement, hereby agrees and consents to the amendment and
restatement of the Existing Notes in their entirety to be substantially in the
form of EXHIBITS 1 and 2 hereto. The Existing Notes, as so amended and restated,
shall be hereinafter referred to, individually, as a "Note" and, collectively,
as the "Notes," and shall include each Note delivered pursuant to any provision
of this Agreement and each Note delivered in substitution or exchange for any
such Note pursuant to any such provision. The Issuer has duly authorized the
execution and delivery to each Noteholder of its respective Notes, each of which
Notes shall (a) be substituted in the place of the Existing Notes, (b) be dated
and bear interest from the date hereof, (c) have the terms herein and therein
provided, and (d) be substantially in the form set out in EXHIBITS 1 or 2, as
the case may be, with such changes therefrom, if any, as may be approved by the
Noteholders and the Issuer.
Section 1.4. Agreement and Consent of the Noteholders. The Noteholders are,
collectively, the holders of one hundred percent (100%) of the aggregate
principal amount of the Existing Notes. Subject to the satisfaction of the
conditions precedent set forth in SECTION 4, the Noteholders, by their execution
of this Agreement, hereby agree and consent to: (a) the amendment and
restatement in their entirety of all of the Existing Note Purchase Agreements by
and into this Agreement, (b) the amendment and restatement in their entirety of
each of the Existing Notes by the exchange for a Note substantially in the form
of EXHIBIT 1 or 2 hereto, as applicable, and in an equal outstanding principal
amount therefore and (c) the execution and delivery of the Parent Guaranty by
the Parent Company.
Section 1.5. Defined Terms, Etc. Certain capitalized terms used in this
Agreement are defined in SCHEDULE A hereto; references to a "SCHEDULE" or an
"EXHIBIT" are, unless otherwise specified, to a SCHEDULE or an EXHIBIT attached
to this Agreement; and references to a "SECTION" are, unless otherwise
specified, to a SECTION of this Agreement.
Section 1.6. Several Obligations. The obligations of each Noteholder
hereunder are several and not joint obligations, and no Noteholder shall have
any obligation or liability to any Person for the performance or nonperformance
by any other Noteholder hereunder.
Section 1.7. Effect of Amendment and Restatement. Each of the Noteholders
and the Issuer agree that (a) the amendment and restatement of the Existing
Notes and the exchange of the Existing Notes for the Notes hereunder shall not
constitute a prepayment of the Existing Notes, and (b) no Make-Whole Amount or
other premium is payable as a result of the amendment and restatement of the
Existing Note Purchase Agreements or the Existing Notes as contemplated hereby.
Section 1.8. Effective Date. On April 4, 2006, or such other Business Day
thereafter as may be mutually agreed upon by the Issuer and the Noteholders (the
"Effective Date"), the Issuer shall execute and deliver to the Noteholders at
the offices of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, at 10:00 A.M. Chicago time, or at such other
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place agreed to by the parties, one or more Notes (as set forth below each
Noteholder's name on SCHEDULE A), registered in the name specified on SCHEDULE
A, in the denomination or denominations specified on SCHEDULE A and of the
series specified in SCHEDULE A, in replacement of the Existing Notes held by
each Noteholder (or such Noteholder's nominee), in the respective principal
amounts and of the series, as more particularly set forth below its name on
SCHEDULE A. Contemporaneously with the receipt by each Noteholder of such Notes,
the Existing Notes held by such Noteholder shall be deemed to be cancelled and
amended and restated by the Notes (regardless of whether such Noteholder shall
have delivered to the Parent Company for cancellation the Existing Notes held by
it). Each Noteholder agrees to use commercially reasonable efforts to deliver
the Existing Notes held by it to the Parent Company in connection with the
foregoing replacement and cancellation. All amounts owing under, and evidenced
by, the Existing Notes as of the Effective Date shall continue to be outstanding
under, and shall from and after the Effective Date be evidenced by, the Notes,
and shall be governed by the terms of this Agreement. It is the intention of the
parties hereto that the amendment and restatement of the Existing Notes by the
Issuer and the execution, delivery and full effectiveness of this Agreement by
the Issuer be simultaneous. Existing Notes delivered to the Parent Company
pursuant to the terms of this Agreement shall be marked "Cancelled/Amended and
Restated by New Notes" by the Parent Company.
If on the Effective Date the Issuer shall fail to tender the Notes to any
Noteholder as provided in this SECTION 1.8, or any of the conditions specified
in SECTION 4 shall not have been fulfilled to any Noteholder's reasonable
satisfaction, such Noteholder shall, at such Noteholder's election, be relieved
of all further obligations under this Agreement, without thereby waiving any
rights such Noteholder may have under the Existing Note Purchase Agreements, the
Existing Notes or otherwise by reason of such failure or such nonfulfillment.
Section 1.9. Survival of Payment Obligations. All payment obligations of
the Parent Company under the Existing Note Purchase Agreements (including,
without limitation, (i) reimbursement obligations in respect of costs, expenses
and fees of or incurred by the holders of the Existing Notes and (ii)
obligations to pay unpaid accrued interest on the Existing Notes accruing from
the date of the last full payment of interest thereon to and including the
Effective Date, which interest payment shall be made by the Parent Company on
the Effective Date), other than the obligation to pay the principal of and
interest and Make-Whole Amount on the Existing Notes (which obligations, after
the Effective Date, shall be evidenced by the Notes) shall survive the amendment
and restatement of the Existing Note Purchase Agreements and the Existing Notes
(and the cancellation thereof) as the obligations of the Issuer.
SECTION 2. [INTENTIONALLY OMITTED.
SECTION 3. [INTENTIONALLY OMITTED].
SECTION 4. CONDITIONS TO EFFECTIVE DATE.
The effectiveness of this Agreement shall be subject to the fulfillment to
each Noteholder's satisfaction, prior to or on the Effective Date, of the
following conditions:
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Section 4.1. Guaranty Agreement. The Parent Company shall have executed and
delivered a Guaranty Agreement in the form of EXHIBIT 4.1 hereto (as the same
may be amended, modified or supplemented from time to time in accordance with
the provisions thereof, the "Parent Company Guaranty").
Section 4.2. Termination of Existing Credit Agreement and Bridge Loan
Credit Agreement; New Credit Agreement. The Parent Company and the Bank shall
have terminated the Existing Credit Agreement and the Bridge Loan Credit
Agreement. The Issuer and the Bank shall have duly executed and delivered a
Credit Agreement providing for a loan facility to the Issuer of between
$50,000,000 and $75,000,000 (as amended from time to time, the "Credit
Agreement"), which, among other things, allows for the amendment and restatement
of the Existing Notes and the Existing Note Purchase Agreements and the issuance
of the 2006 Notes and provides for covenants and agreements substantially the
same as those contained herein and in the Parent Company Guaranty, in form and
substance reasonably satisfactory to each Noteholder, and the Credit Agreement
shall be in full force and effect. Each Noteholder shall have received a copy of
the Credit Agreement and all instruments, documents and agreements delivered at
the closing thereof.
Section 4.3. 2006 Note Agreement. The Issuer and the purchasers of the 2006
Notes shall have duly executed and delivered the 2006 Note Purchase Agreement,
which among other things, provides for the issuance of the 2006 Notes and for
covenants and agreements substantially the same as those contained herein and in
the Parent Company Guaranty, in form and substance reasonably satisfactory to
each Noteholder, and the 2006 Note Purchase Agreement and the 2006 Guaranty
Agreement shall be in full force and effect. Each Noteholder shall have received
a copy of the 2006 Note Purchase Agreement and the 2006 Guaranty Agreement and
all instruments, documents and agreements delivered at the closing thereof.
Section 4.4. Representations and Warranties. The representations and
warranties of the Issuer in this Agreement and the representations and
warranties of the Parent Company in the Parent Company Guaranty shall be correct
when made and on the Effective Date.
Section 4.5. Performance; No Default. The Issuer and the Parent Company
shall have performed and complied with all agreements and conditions contained
in this Agreement and the Parent Company Guaranty required to be performed or
complied with by it prior to or on the Effective Date, and after giving effect
to the amendment and restatement of the Existing Note Purchase Agreements and
the Existing Notes and the exchange thereof for the Notes and the issue and sale
of the 2006 Notes (and the application of the proceeds thereof), no Default or
Event of Default shall have occurred and be continuing. Neither the Parent
Company nor any Subsidiary shall have entered into any transaction since March
31, 2004 that would have been prohibited by Section 10 hereof had such Section
applied since such date.
Section 4.6. Compliance Certificates.
(a) Officer's Certificates. Each of the Parent Company and the Issuer shall
have delivered to each Noteholder an Officer's Certificate, dated the Effective
Date, certifying that the conditions specified in SECTIONS 4.4, 4.5 and 4.14
have been fulfilled.
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(b) Secretary's Certificates. The General Partner shall have delivered to
each Noteholder a certificate certifying as to the resolutions attached thereto
and other partnership proceedings taken by the Issuer or corporate proceedings
taken by the General Partner relating to the authorization, execution and
delivery of the Notes and this Agreement and the Parent Company shall have
delivered to each Noteholder a certificate certifying as to the resolutions
attached thereto and other corporate proceedings relating to the authorization,
execution and delivery of the Parent Company Guaranty.
Section 4.7. Opinions of Counsel. Each Noteholder shall have received
opinions in form and substance satisfactory to each Noteholder, dated the
Effective Date (a) from ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Parent
Company, the General Partner and the Issuer, covering the matters set forth in
EXHIBIT 4.7(A) and covering such other matters incident to the transactions
contemplated hereby as each Noteholder or special counsel to the Noteholders may
reasonably request (and the Issuer hereby instructs such counsel to deliver such
opinion to each Noteholder), (b) from W. ▇▇▇▇ ▇▇▇▇▇, Vice President and
Secretary of the Parent Company covering the matters set forth in EXHIBIT 4.7(B)
and covering such other matters incident to the transactions contemplated hereby
as such Noteholder or special counsel to the Noteholders may reasonably request,
(c) from Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Canadian counsel for the Parent Company,
the General Partner and the Issuer covering the matters set forth in EXHIBIT
4.7(C) and covering such other matters incident to the transactions contemplated
hereby as such Noteholder or special counsel to the Noteholders may reasonably
request and (d) from ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, the Noteholders' special counsel in
connection with such transactions, covering the matters set forth in EXHIBIT
4.7(D) and such other matters incident to such transactions as each Noteholder
may reasonably request.
Section 4.8. Purchase Permitted by Applicable Law, Other Agreements Etc. On
the Effective Date, the issuance and delivery of the Notes in exchange for the
Existing Notes shall (a) be permitted by the laws and regulations of each
jurisdiction to which each Noteholder is subject, without recourse to provisions
(such as Section 1405(a)(8) of the New York Insurance Law) permitting limited
investments by insurance companies without restriction as to the character of
the particular investment, (b) not violate any applicable law or regulation
(including, without limitation, Regulation T, U or X of the Board of Governors
of the Federal Reserve System) (c) not subject any Noteholder to any tax,
penalty or liability under or pursuant to any applicable law or regulation and
(d) not cause the Parent Company or any Subsidiary to be in violation of any
covenants or other restrictions or provisions in any agreements, instruments or
other documents to which the Parent Company or such Subsidiary is subject. If
requested by any Noteholder, each Noteholder shall have received an Officer's
Certificate of the Issuer certifying as to such matters of fact as each
Noteholder may reasonably specify to enable each Noteholder to determine whether
the issuance and delivery of the Notes in exchange for the Existing Notes is so
permitted, including, without limitation, calculations demonstrating compliance
with the covenants set forth in the Credit Agreement, this Agreement and the
Subordinated Debentures after giving effect to the issuance of the Notes in
exchange for the Existing Notes.
Section 4.9. Related Transactions. The Issuer and the Parent Company shall
have completed the exchange of the Notes for the Existing Notes pursuant to this
Agreement.
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Section 4.10. Confirmation under Subordinated Debentures. Each holder of a
Subordinated Debenture shall have duly executed and delivered to each Noteholder
a confirmation, acknowledged by the Parent Company, which confirms that the
Notes and the Parent Company Guaranty constitute Permitted Senior Indebtedness
under such Subordinated Debenture, and such confirmation shall be in full force
and effect.
Section 4.11. Review of Insurance Broker Litigation and Investigations.
Each Noteholder shall have completed a review of matters with respect to any
litigation or investigation involving the Parent Company or any of its
Subsidiaries and each Noteholder shall be satisfied in all respects with the
results of such review.
Section 4.12. Payment of Special Counsel Fees. Without limiting the
provisions of SECTION 15.1, the Issuer shall have paid on or before the
Effective Date the reasonable fees, charges and disbursements of the
Noteholders' special counsel referred to in SECTION 4.7(D) to the extent
reflected in a statement of such counsel rendered to the Issuer at least three
Business Days prior to the Effective Date.
Section 4.13. Private Placement Numbers. A Private Placement Number issued
by Standard & Poor's CUSIP Service Bureau (in cooperation with the Securities
Valuation Office of the National Association of Insurance Commissioners) shall
have been obtained for each series of the Notes.
Section 4.14. Reorganization; Changes in Corporate Structure. (a) The
Parent Company and its Subsidiaries shall have completed the reorganization
described on SCHEDULE 4.14 hereto (the "Reorganization").
(b) Except as specified in SCHEDULE 4.14, neither the Parent Company nor
the Issuer shall have changed its jurisdiction of incorporation or organization
or been a party to any merger or consolidation and shall not have succeeded to
all or any substantial part of the liabilities of any other entity, at any time
following the date of the most recent financial statements referred to in
Schedule 5.5 of the Parent Company Guaranty.
Section 4.15. Amendment Fee. The Issuer shall have paid (i) to such
Noteholder, by wire transfer of immediately available funds, each Noteholder's
ratable portion (in proportion to the aggregate principal amount of the Notes
held by it) of an amendment fee for all Noteholders in the aggregate amount of
U.S.$325,000 and (ii) to Metropolitan Life Insurance Company by wire transfer of
immediately available funds, an amendment fee in the aggregate amount of $9,400.
Section 4.16. Proceedings and Documents. All corporate, partnership and
other proceedings in connection with the transactions contemplated by this
Agreement and all documents and instruments incident to such transactions shall
be satisfactory to each Noteholder and special counsel to the Noteholders, and
each Noteholder and special counsel to the Noteholders shall have received all
such counterpart originals or certified or other copies of such documents as
each Noteholder or special counsel to the Noteholders may reasonably request.
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Section 4.17. Payment of Outstanding Interest Under the Existing Notes. The
Parent Company shall have paid to the Noteholders on or before the Effective
Date unpaid interest which shall have accrued on the Existing Notes from the
last full payment of interest on such Existing Notes to and including the
Effective Date.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE ISSUER.
The Issuer represents and warrants to each Noteholder that:
Section 5.1. Organization; Power and Authority. The Issuer is a limited
partnership duly organized and validly existing under the laws of Delaware, and
is duly qualified as a foreign limited partnership and is in good standing in
each jurisdiction in which such qualification is required by law, other than
those jurisdictions as to which the failure to be so qualified or in good
standing could not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect. The General Partner is the sole general partner
of the Issuer. The General Partner is a corporation duly organized and validly
existing under the laws of the Province of Ontario and is duly qualified as a
foreign corporation and in good standing in each jurisdiction in which such
qualification is required by law, other than those jurisdictions as to which the
failure to be so qualified or in good standing could not, individually or in the
aggregate, be reasonably expected to have a Material Adverse Effect. The Issuer
has the limited partnership power and authority to own or hold under lease the
properties it purports to own or hold under lease, to transact the business it
transacts and proposes to transact, to execute and deliver this Agreement and
the Notes and to perform the provisions hereof and thereof. The General Partner
has the corporate power and authority to own or hold under lease the properties
it purports to own or hold under lease, to transact on the business it transacts
and proposes to transact and to execute and deliver this Agreement and the Notes
on behalf of the Issuer.
Section 5.2. Authorization, Etc. This Agreement and the Notes have been
duly authorized by all necessary limited partnership action on the part of the
Issuer, and this Agreement constitutes, and upon execution and delivery thereof
each Note will constitute, a legal, valid and binding obligation of the Issuer
enforceable against the Issuer in accordance with its terms, except as such
enforceability may be limited by (a) applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally and (b) general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
The execution and delivery of this Agreement and the Notes by the General
Partner on behalf of the Issuer have been duly authorized by all necessary
corporate action on the part of the General Partner.
Section 5.3. Compliance with Laws, Other Instruments, Etc. The execution,
delivery and performance by the Issuer of this Agreement and the Notes, and the
execution and delivery of this Agreement and the Notes by the General Partner on
behalf of the Issuer, will not (a) contravene, result in any breach of, or
constitute a default under, or result in the creation of any Lien in respect of
any property of the Parent Company or any Subsidiary under, any indenture,
mortgage, deed of trust, loan, purchase or credit agreement, lease, the
partnership agreement of the Issuer, the corporate charter of the General
Partner, limited partnership agreement, operating agreement, corporate charter
or by-laws of the Parent Company or any
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Subsidiary or any other Material agreement or instrument to which the Parent
Company or any Subsidiary is bound or by which the Parent Company or any
Subsidiary or any of their respective properties may be bound or affected, (b)
conflict with or result in a breach of any of the terms, conditions or
provisions of any order, judgment, decree or ruling of any court, arbitrator or
Governmental Authority applicable to the Parent Company or any Subsidiary or (c)
violate any provision of any statute or other rule or regulation of any
Governmental Authority applicable to the Parent Company or any Subsidiary.
Section 5.4. Governmental Authorizations, Etc. No consent, approval or
authorization of, or registration, filing or declaration with, any Governmental
Authority is required in connection with the execution, delivery or performance
by the Issuer of this Agreement or the Notes or the execution or delivery of
this Agreement or the Notes by the General Partner on behalf of the Issuer,
other than those consents, approvals or authorizations obtained and those
registrations, filings or declarations made on or before the Effective Date.
Section 5.5. Compliance with ERISA. The execution and delivery of this
Agreement and the issuance and delivery of the Notes hereunder in exchange for
the Existing Notes will not involve any transaction that is subject to the
prohibitions of Section 406(a) of ERISA or in connection with which a tax could
be imposed pursuant to Section 4975(c)(1)(A)-(D) of the Code for which an
exemption is not available. The representation by the Issuer in the first
sentence of this SECTION 5.5 is made in reliance upon and subject to the
accuracy of each Noteholder's representation in SECTION 6.2 as to the sources of
the funds used to pay the purchase price of the Existing Notes and used to hold
the Notes acquired hereunder in exchange for the Existing Notes.
Section 5.6. Private Offering by the Issuer. Neither the General Partner,
the Issuer nor anyone acting on its behalf has offered the Notes or any similar
securities for sale to, or solicited any offer to buy any of the same from, or
otherwise approached or negotiated in respect thereof with, any Person other
than the Noteholders, in exchange for the Existing Notes. Neither the General
Partner, the Issuer nor anyone acting on its behalf has taken, or will take, any
action that would subject the issuance or delivery of the Notes to the
registration requirements of Section 5 of the Securities Act.
Section 5.7. Use of Proceeds; Margin Regulations. No part of the proceeds
from the sale of the 2006 Notes will be used, directly or indirectly, for the
purpose of buying or carrying any margin stock within the meaning of Regulation
U of the Board of Governors of the Federal Reserve System (12 CFR 221), or for
the purpose of buying or carrying or trading in any securities under such
circumstances as to involve the Issuer in a violation of Regulation X of said
Board (12 CFR 224) or to involve any broker or dealer in a violation of
Regulation T of said Board (12 CFR 220). As used in this Section, the terms
"margin stock" and "purpose of buying or carrying" shall have the meanings
assigned to them in said Regulation U. Margin stock does not constitute more
than 25% of the value of the consolidated assets of the Issuer and its
Subsidiaries and the Issuer does not have any present intention that margin
stock will constitute more than 25% of the value of such assets. As used in this
Section, the terms "margin stock" and "purpose of buying or carrying" shall have
the meanings assigned to them in said Regulation U.
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Section 5.8. Foreign Assets Control Regulations, Etc. The delivery of the
Notes by the Issuer hereunder in exchange for the Existing Notes will not
violate the Anti-Terrorism Order, the Patriot Act or the Trading with the Enemy
Act, as amended, or any of the foreign assets control regulations of the United
States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or any
enabling legislation or executive order relating thereto.
Section 5.9. Status under Certain Statutes. Neither the General Partner nor
the Issuer is required to be registered under the Investment Company Act of
1940, as amended, the Public Utility Holding Company Act of 1935, as amended,
the ICC Termination Act of 1995, as amended, or the Federal Power Act, as
amended.
Section 5.10. Notes Rank Pari Passu. The obligations of the Issuer under
this Agreement and the Notes rank at least pari passu in right of payment with
all other Senior Debt (actual or contingent) of the Issuer.
SECTION 6. REPRESENTATIONS OF THE NOTEHOLDERS.
Section 6.1. Purchase for Investment. (a) Each Noteholder represents that
it is an Institutional Accredited Investor. Each Noteholder further represents
that it is acquiring the Notes in exchange for the Existing Notes for its own
account or for one or more separate accounts maintained by such Noteholder or
for the account of one or more pension or trust funds and not with a view to the
distribution thereof, provided that the disposition of such Noteholder's or such
pension or trust funds' property shall at all times be within such Noteholder's
or such pension or trust funds' control. Each Noteholder understands that the
Notes have not been registered under the Securities Act or securities laws of
any other applicable jurisdiction and may be resold only if registered pursuant
to the provisions of the Securities Act or if an exemption from registration is
available, except under circumstances where neither such registration nor such
an exemption is required by law, and that the Issuer is not required to register
the Notes.
(b) Each Noteholder acknowledges that the Notes are not qualified for
distribution or resale in Canada and further represents and warrants and agrees
that: (a) such Noteholder is not a Canadian resident nor acting for the account
or benefit of a Canadian resident; (b) the Notes were not offered to such
Noteholder in Canada; (c) at the time of agreeing to purchase the Notes such
Noteholder was and is outside of Canada; and (d) such Noteholder will not trade
its Notes to any Canadian resident or in Canada unless permitted under and
traded in compliance with applicable securities laws of the provinces and
territories of Canada.
Section 6.2. Source of Funds. Each Noteholder represents that at least one
of the following statements is an accurate representation as to each source of
funds (a "Source") which was used to acquire the Existing Notes and which
remains used to hold the Notes to be acquired hereunder in exchange for the
Existing Notes:
(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), as amnded by PTE 2002-13 (issued March 1,
2002) and there is no employee benefit plan, treating as a single plan, all
plans maintained by the same
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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 10% of the total reserves and liabilities of
such general account (exclusive of separate account liabilities) plus
surplus, as set forth in the National Association of Insurance
Commissioner's Annual Statement for such Noteholder filed with such
Noteholder's state of domicile; or
(b) the Source is either (1) an insurance company pooled separate
account, within the meaning of PTE 90-1 (issued January 29, 1990), or (2) a
bank collective investment fund, within the meaning of PTE 91-38 (issued
July 12, 1991), as amended by PTE 2002-13 (issued March 1, 2002) and,
except as such Noteholder has disclosed to the Issuer in writing pursuant
to this paragraph (b) prior to the Effective Date, 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 Issuer and (1) the identity of
such QPAM and (2) the names of all employee benefit plans whose assets are
included in such investment fund have been disclosed to the Issuer in
writing pursuant to this paragraph (c); 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 has been identified to the Issuer in writing pursuant to this
paragraph (e) prior to the Effective Date; or
(f) the Source does not include assets of any employee benefit plan,
other than a plan exempt from the coverage of ERISA.
As used in this SECTION 6.2, the terms "employee benefit plan,"
"governmental plan," "party in interest" and "separate account" shall have the
respective meanings assigned to such terms in Section 3 of ERISA.
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SECTION 7. INFORMATION AS TO ISSUER.
Section 7.1. Financial and Business Information. The Issuer shall deliver
to each holder that is an Institutional Investor:
(a) Notice of Default or Event of Default -- promptly, and in any
event within five Business Days after a Responsible Officer of the Issuer
becoming aware of the existence of any Default or Event of Default or that
any Person has given any notice or taken any action with respect to a
claimed default hereunder or that any Person has given any notice or taken
any action with respect to a claimed default of the type referred to in
SECTION 11(f), a written notice specifying the nature and period of
existence thereof and what action the Issuer is taking or proposes to take
with respect thereto;
(b) Notices from Governmental Authority -- promptly, and in any event
within 30 days of receipt thereof, copies of any notice to the Issuer from
any Federal, state or provincial Governmental Authority relating to any
order, ruling, statute or other law or regulation that could reasonably be
expected to have a Material Adverse Effect;
(c) Requested Information -- with reasonable promptness, such other
data and information relating to the business, operations, affairs,
financial condition, assets or properties of the Issuer or relating to the
ability of the Issuer to perform its obligations hereunder and under the
Notes as from time to time may be reasonably requested by any such holder
of Notes.
Section 7.2. Officer's Certificate. The Issuer shall cause each set of
financial statements delivered to a holder pursuant to Section 3.1(a) or Section
3.1(b) of the Guaranty Agreement to be accompanied by a certificate of a Senior
Financial Officer of the Parent Company setting forth:
(a) Covenant Compliance -- the information (including detailed
calculations) required in order to establish whether the Issuer was in
compliance with the requirements of SECTION 10.1 through SECTION 10.8
hereof, inclusive, and that no Event of Default described in SECTION 11(D)
hereof was in existence, during the quarterly or annual period covered by
the statements then being furnished (including with respect to each such
Section, where applicable, the calculations of the maximum or minimum
amount, ratio or percentage, as the case may be, permissible under the
terms of such Section and the calculation of the amount, ratio or
percentage then in existence); and
(b) Event of Default -- a statement that such officer has reviewed the
relevant terms hereof and has made, or caused to be made, under his or her
supervision, a review of the transactions and conditions of the Parent
Company and its Subsidiaries from the beginning of the quarterly or annual
period covered by the statements then being furnished to the date of the
certificate and that such review 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
(including, without limitation, any such event or condition resulting from
the failure of the Parent Company
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or any Subsidiary to comply with any Environmental Law), specifying the
nature and period of existence thereof and what action the Parent Company
shall have taken or proposes to take with respect thereto.
Section 7.3. Inspection. The Issuer shall permit, and shall cause the
Parent Company and its Subsidiaries to permit, the representatives of each
holder that is an Institutional Investor:
(a) No Default -- if no Default or Event of Default then exists, at
the expense of such holder and upon reasonable prior notice to the Parent
Company, to visit the principal executive office of the Parent Company, to
discuss the affairs, finances and accounts of the Parent Company and its
Subsidiaries with the Parent Company's officers and (with the consent of
the Parent Company, which consent the Issuer will not permit to be
unreasonably withheld) its independent chartered accountants, and (with the
consent of the Parent Company, which consent the Issuer will not permit to
be unreasonably withheld) to visit the other offices and properties of the
Parent Company and each Subsidiary, all at such reasonable times during
business hours and as often as may be reasonably requested in writing; and
(b) Default -- if a Default or Event of Default then exists, at the
expense of the Issuer to visit and inspect any of the offices or properties
of the Parent Company or any Subsidiary, to examine all their respective
books of account, records, reports and other papers, to make copies and
extracts therefrom, and to discuss their respective affairs, finances and
accounts with their respective officers and independent chartered
accountants (and by this provision the Issuer authorizes said accountants
to discuss the affairs, finances and accounts of the Issuer and its
Subsidiaries), all at such times and as often as may be requested.
Section 8. PREPAYMENT OF THE NOTES.
Section 8.1. Required Prepayments.
(a) On June 15, 2006, the Company will prepay U.S.$2,500,000 in 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, together with interest accrued thereon. The entire principal amount of
the Series A Notes shall become due and payable on April 4, 2011.
(b) The Company will prepay the Series B Notes in the amounts and on the
dates set forth below, in each case at par and without payment of the Make-Whole
Amount or any premium, together with interest accrued thereon:
PREPAYMENT AMOUNT PREPAYMENT DATE
----------------- ---------------
$ 4,583,333 June 15, 2008
$ 4,583,333 June 15, 2009
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$ 4,583,333 June 15, 2010
$19,250,001 June 15, 2011
$11,000,000 June 15, 2012
$11,000,000 June 15, 2013
In the case of each required prepayment of the Notes pursuant to paragraph
(a) or (b) of this SECTION 8.1, the principal amount of the Notes of the series
to be prepaid shall be allocated among all of the Notes of such series to be
prepaid at the time outstanding in proportion, as nearly as practical, to the
respective unpaid principal amounts thereof.
Any partial prepayment of the Notes pursuant to SECTION 8.2 shall be
applied in satisfaction of the required payments of principal thereof (including
the required payment of principal due upon the maturity thereof) in the inverse
order of their scheduled due dates. Any purchase of the Notes permitted by
SECTION 8.5 hereof or Section 4.4 of the Parent Company Guaranty or prepayment
of the Notes accepted under SECTION 8.7 shall be applied in accordance with
SECTION 8.3 to reduce the principal amount of each required prepayment of the
Notes becoming due under SECTION 8.1 on and after the date of such prepayment or
purchase in the same proportion as the aggregate unpaid principal amount of the
Notes is reduced as a result of such prepayment or purchase.
Section 8.2. Optional Prepayments with Make-Whole Amount. The Issuer may,
at its option, upon notice as provided below, prepay at any time all, or from
time to time any part of, the Notes in an amount not less than U.S.$1,000,000 of
the aggregate principal amount of the Notes then outstanding in the case of a
partial prepayment, at 100% of the principal amount so prepaid, plus the
Make-Whole Amount, if any, determined for the prepayment date with respect to
such principal amount. The Issuer will give each holder of Notes written notice
of each optional prepayment under this SECTION 8.2 not less than 30 days and not
more than 60 days prior to the date fixed for such prepayment. Each such notice
shall specify such date, the aggregate principal amount of the Notes to be
prepaid on such date, the principal amount of each Note held by such holder to
be prepaid (determined in accordance with SECTION 8.3), and the interest to be
paid on the prepayment date with respect to such principal amount being prepaid,
and shall be accompanied by a certificate of a Senior Financial Officer of the
Issuer as to the estimated Make-Whole Amount due in connection with such
prepayment (calculated as if the date of such notice were the date of the
prepayment), setting forth the details of such computation. Two Business Days
prior to such prepayment, the Issuer shall deliver to each holder of Notes a
certificate of a Senior Financial Officer of the Issuer specifying the
calculation of such Make-Whole Amount as of the specified prepayment date.
Section 8.3. Allocation of Partial Prepayments. In the case of each partial
prepayment of the Notes pursuant to SECTION 8.2, the principal amount of the
Notes to be prepaid shall be allocated among all of the Notes at the time
outstanding in proportion, as nearly as practicable, to the respective unpaid
principal amounts thereof not theretofore called for prepayment. Purchases
permitted by SECTION 8.5 hereof or Section 4.4 of the Parent Company Guaranty
and
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prepayments under SECTION 8.7 shall be applied only to the Notes of the
holders who are participating in such prepayment or purchase.
Section 8.4. Maturity; Surrender, Etc. In the case of each prepayment of
Notes pursuant to this SECTION 8, the principal amount of each Note to be
prepaid shall mature and become due and payable on the date fixed for such
prepayment, together with interest on such principal amount accrued to such date
and the applicable Make-Whole Amount, if any. From and after such date, unless
the Issuer shall fail to pay such principal amount when so due and payable,
together with the interest and the applicable Make-Whole Amount, if any, as
aforesaid, interest on such principal amount shall cease to accrue. Any Note
paid or prepaid in full shall be surrendered to the Issuer and cancelled and
shall not be reissued, and no Note shall be issued in lieu of any prepaid
principal amount of any Note.
Section 8.5. Purchase of Notes. The Issuer will not, and will not permit
the Parent Company or any Subsidiary of the Parent Company to, purchase, redeem,
prepay or otherwise acquire, directly or indirectly, any of the outstanding
Notes except (a) upon the payment or prepayment of the Notes in accordance with
the terms of this Agreement and the Notes or (b) pursuant to an offer to
purchase made by the Issuer or such Subsidiary pro rata to the holders of all
Notes at the time outstanding upon the same terms and conditions. Any such offer
shall provide each holder with sufficient information to enable it to make an
informed decision with respect to such offer, and shall remain open for at least
10 Business Days. If the holders of more than 25% of the principal amount of the
Notes then outstanding accept such offer, the Issuer shall, or shall cause such
Subsidiary to, promptly notify the remaining holders of such fact and the
expiration date for the acceptance by holders of Notes of such offer shall be
extended by the number of days necessary to give each such remaining holder at
least 10 Business Days from its receipt of such notice to accept such offer. The
Issuer will promptly cancel all Notes acquired by it, the Parent Company or any
Subsidiary pursuant to any payment, prepayment or purchase of Notes pursuant to
any provision of this Agreement or the Parent Company Guaranty and no Notes may
be issued in substitution or exchange for any such Notes.
Section 8.6. Make-Whole Amount for Notes. The term "Make-Whole Amount"
shall mean, with respect to any Note, an amount equal to the excess, if any, of
the Discounted Value of the Remaining Scheduled Payments with respect to the
Called Principal of such Note over the amount of such Called Principal, provided
that the Make-Whole Amount may in no event be less than zero. For the purposes
of determining the Make-Whole Amount, the following terms have the following
meanings:
"Called Principal" shall mean, with respect to any Note, the principal
of such Note that is to be prepaid pursuant to SECTION 8.2 or has become or
is declared to be immediately due and payable pursuant to SECTION 12.1, as
the context requires.
"Discounted Value" shall mean, with respect to the Called Principal of
any Note, the amount obtained by discounting all Remaining Scheduled
Payments with respect to such Called Principal from their respective
scheduled due dates to the Settlement Date with respect to such Called
Principal, in accordance with accepted financial practice and
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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" shall mean, with respect to the Called Principal
of any Note, 0.50% over the yield to maturity implied by (a) the yields
reported, as of 10:00 a.m. (New York, New York time) on the second Business
Day preceding the Settlement Date with respect to such Called Principal, on
the display designated as "Page PX1" on the Bloomberg Financial Markets
Services Screen (or such other display as may replace Page PX1 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 (b) 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 (1) converting U.S. Treasury ▇▇▇▇
quotations to bond-equivalent yields in accordance with accepted financial
practice and (2) interpolating linearly between (i) the actively traded
U.S. Treasury security with the maturity closest to and greater than the
Remaining Average Life and (ii) the actively traded U.S. Treasury security
with the maturity closest to and less than the Remaining Average Life.
"Remaining Average Life" shall mean, with respect to any Called
Principal, the number of years (calculated to the nearest one-twelfth year)
obtained by dividing (a) such Called Principal into (b) the sum of the
products obtained by multiplying (1) the principal component of each
Remaining Scheduled Payment with respect to such Called Principal by (2)
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" shall mean, with respect to the Called
Principal of any Note all payments, of such Called Principal and interest
thereon that would be due after the Settlement Date with respect to such
Called Principal if no payment of such Called Principal were made prior to
its scheduled due date, provided that if such Settlement Date is not a date
on which interest payments are due to be made under the terms of the Note,
then the amount of the next succeeding scheduled interest payment will be
reduced by the amount of interest accrued to such Settlement Date and
required to be paid on such Settlement Date pursuant to SECTION 8.2 or
12.1.
"Settlement Date" shall mean, with respect to the Called Principal of
any Note, the date on which such Called Principal is to be prepaid pursuant
to SECTION 8.2 or has become or is declared to be immediately due and
payable pursuant to SECTION 12.1, as the context requires.
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Section 8.7. Offer to Prepay Notes in the Event of a Debt Prepayment
Application.
(a) Notice of Debt Prepayment Application; Offer to Prepay. At least 30
days prior to the consummation of a Debt Prepayment Application, the Issuer
shall have given to each holder of the Notes written notice of such impending
Debt Prepayment Application. Such notice shall contain and constitute an offer
to prepay the Notes as described in SECTION 8.7(C) and shall be accompanied by
the certificate described in SECTION 8.7(E).
(b) Offer to Prepay. The offer to prepay Notes contemplated by SECTION
8.7(A) upon the occurrence of a Debt Prepayment Application shall be an offer to
prepay, in accordance with and subject to this SECTION 8.7, the Notes held by
the holders thereof (in this case only, "holder" in respect of any Note
registered in the name of a nominee for a disclosed beneficial owner shall mean
such beneficial owner) on a date specified in such offer (the "Offer Prepayment
Date") which date shall be not less than 30 days and not more than 60 days after
the date of such offer, in an aggregate amount equal to the product of (1) the
aggregate amount of such Debt Prepayment Application multiplied by (2) the ratio
of the aggregate outstanding principal amount of the Notes to the aggregate
outstanding principal amount of Senior Funded Debt of the Issuer and its
Subsidiaries (other than Senior Funded Debt owing to the Parent Company, any of
its Subsidiaries or any Affiliates).
(c) Acceptance; Rejection. A holder of Notes may accept or reject an offer
to prepay made to such holder pursuant to this SECTION 8.7 by causing a notice
of such acceptance or rejection to be delivered to the Issuer prior to the Offer
Prepayment Date. A failure by a holder of Notes to so respond to an offer to
prepay shall be deemed to constitute a rejection of such offer by such holder.
(d) Prepayment. Prepayment of the Notes to be prepaid pursuant to this
SECTION 8.7 shall be in the amount set forth in SECTION 8.7(B), together with
interest on such Notes accrued to the date of prepayment. The prepayment
pursuant to an offer to prepay any Notes shall be made on the Offer Prepayment
Date for such offer.
(e) Officer's Certificate. Each offer to prepay Notes pursuant to this
SECTION 8.7 shall be accompanied by a certificate, executed by a Responsible
Officer of the Issuer and dated the date of such offer, specifying (i) the Offer
Prepayment Date for such offer, (ii) that such offer is made pursuant to SECTION
8.7, (iii) the principal amount of each Note offered to be prepaid, (iv) the
interest that would be due on each Note offered to be prepaid, accrued to the
Offer Prepayment Date for such offer, (v) whether or not the conditions of this
SECTION 8.7 have been fulfilled by the Issuer, and (vi) in reasonable detail,
the nature and date Asset Disposition (as defined in the Parent Company
Guaranty) giving rise to such offer and the Net Proceeds Amount (as defined in
the Parent Company Guaranty) received in connection therewith.
Section 8.8. Payments Free and Clear of Taxes. (a) The Issuer, for the
benefit of the holders, agrees that in the event payments, if any, made by the
Issuer hereunder or in respect of the Notes to any holder are subject to any
present or future tax, duty, assessment, impost, levy, withholding or other
similar charge (a "Relevant Tax") imposed upon such holder by the government of
any country or jurisdiction (or any authority or political subdivision therein
or
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thereof) other than any tax based on or measured by net income or capital
imposed on any holder by the country in which such holder is a resident for
income tax purposes (the "Resident Country"), from or through which payments
hereunder or on or in respect of the Notes are actually made (each a "Taxing
Jurisdiction"), the Issuer will pay to such holder such additional amounts ("Tax
Indemnity Amounts") as may be necessary in order that the net amounts paid to
such holder pursuant to the terms of this Agreement or the Notes after
imposition of any such Relevant Tax shall be not less than the amounts specified
in this Agreement or the Notes to be then due and payable (after giving effect
to the exclusion for Relevant Taxes imposed by the government of the Resident
Country), provided that the Issuer shall not be obliged to pay such Tax
Indemnity Amounts to any holder of a Note in respect of Relevant Taxes to the
extent such Relevant Taxes exceed the Relevant Taxes that would have been
payable:
(1) had such holder not been a resident of Canada within the meaning
of the Income Tax Act (Canada) or not used or held such Note in the course
of carrying on a business in Canada within the meaning of the Income Tax
Act (Canada); or
(2) had such holder not dealt with the members of the Issuer or Parent
Company on a non-arm's length basis (within the meaning of the Income Tax
Act (Canada)) in connection with any such payment; or
(3) had such holder not had any connection with such Taxing
Jurisdiction or any territory or political subdivision thereof other than
the mere holding of a Note (or the receipt of any payments in respect
thereof) or activities incidental thereto (including enforcement thereof);
or
(4) but for the delay or failure by such holder (following a written
request by the Issuer) in the filing with an appropriate Governmental
Authority or otherwise of forms, certificates, documents, applications or
other reasonably required evidence, that is required to be filed by such
holder to avoid or reduce such Relevant Taxes and that in the case of any
of the foregoing would not result in any confidential or proprietary income
tax return information being revealed, either directly or indirectly, to
any Person (collectively, "Forms") and such delay or failure could have
been lawfully avoided by such holder, provided that such holder shall be
deemed to have satisfied the requirements of this clause (4) upon the good
faith completion and submission of such Forms as may be specified in a
written request of the Issuer no later than 45 days after receipt by such
holder of such written request (which written request shall be accompanied
by a copy of such Forms and all applicable instructions and, if any such
Forms or instructions shall not be in the English language, an English
translation thereof);
and provided further that in no event shall the Issuer be obligated to pay any
Tax Indemnity Amount to any holder not resident for income tax purposes in the
United States of America or any other jurisdiction in which an original
Noteholder is resident for tax purposes on the date of Closing in excess of the
amounts that the Issuer would have been obligated to pay if such holder had been
a resident of the United States of America or such other jurisdiction, as
applicable, for income tax purposes for purposes of, and eligible for the
benefits of, any double taxation treaty
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from time to time in effect between the United States of America or such other
jurisdiction and the relevant Taxing Jurisdiction.
(b) Within 60 days after the date of any payment by the Issuer of any
Relevant Tax in respect of any payment under the Notes or this Agreement, the
Issuer shall furnish to each holder of a Note the original tax receipt for the
payment of such Relevant Tax (or if such original tax receipt is not available,
such other evidence of payment as may be acceptable to the holders), together
with such other documentary evidence with respect to such payments as may be
reasonably requested from time to time by any holder of a Note.
(c) If the Issuer has made a payment to or on account of any holder of a
Note pursuant to SECTION 8.9(A) above and such holder, in such holder's
reasonable discretion, determines that it is entitled to a refund of the
Relevant Tax to which such payment is attributable from the Governmental
Authority to which the payment of the Relevant Tax was made and such refund or
credit can be obtained by filing one or more Forms, then (i) such holder shall,
as soon as practicable after receiving a written request therefor from the
Issuer (which request shall specify in reasonable detail the Forms to be filed),
file such Forms and (ii) upon receipt of such refund, if any, provided no
Default or Event of Default then exists, promptly pay over such refund to the
Issuer.
For the avoidance of doubt, nothing herein shall (a) restrict the right of
any holder to arrange its tax affairs as it shall deem appropriate or (b)
require any holder to disclose any information regarding its tax affairs or
computations to the Issuer or any other Person other than as shall be necessary
to permit the Issuer to determine whether the payment of any Tax Indemnity
Amount would be required to be made pursuant to the provisions of this SECTION
8.9; provided, however, no holder shall be obligated to disclose any of its tax
returns to the Issuer or any other Person.
SECTION 9. AFFIRMATIVE COVENANTS.
The Issuer covenants that, so long as any of the Notes are outstanding:
Section 9.1. Compliance with Parent Company Guaranty Affirmative Covenants.
The Issuer will, and will cause each of its Subsidiaries to, comply with each
provision of Section 3 of the Parent Company Guaranty, mutatis mutandis.
Section 9.2. Notes to Rank Pari Passu. The Notes and all other obligations
of the Issuer under this Agreement shall rank at least pari passu with all other
present and future unsecured Senior Debt (actual or contingent) of the Issuer
which is not expressed to be subordinate or junior in rank to any other
unsecured Senior Debt of the Issuer.
SECTION 10. NEGATIVE COVENANTS.
The Issuer covenants that, so long as any of the Notes are outstanding:
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Section 10.1. Limitation on Subsidiary Debt. The Issuer will not, at any
time, permit any Subsidiary to, directly or indirectly, create, incur, assume,
guarantee, have outstanding, or otherwise become or remain directly or
indirectly liable with respect to any Debt, nor will the Issuer suffer any
Subsidiary to have any Debt, other than:
(a) Debt of a Subsidiary outstanding on the date of this Agreement so
long as the aggregate principal amount of all Debt outstanding under this
clause (a), together with the outstanding principal of all Debt secured by
Liens permitted under SECTION 10.3(F), does not exceed U.S.$15,000,000 at
any time, and any extension, renewal or refunding of any Debt permitted
under this clause (a), provided that (1) the principal amount thereof is
not increased in connection with such extension, renewal or refunding and
(2) no Default or Event of Default shall exist at the time of such
extension, renewal or refunding;
(b) Debt of a Subsidiary owed to the Parent Company or a Wholly-Owned
Subsidiary;
(c) Debt of a Subsidiary outstanding at the time such Subsidiary
becomes a Subsidiary (such time referred to hereinafter as the "Acquisition
Date"), provided that (1) such Debt shall not have been incurred in
contemplation of such Subsidiary becoming a Subsidiary, (2) immediately
after such Subsidiary becomes a Subsidiary no Default or Event of Default
shall exist, and any extension, renewal or refunding of such Debt,
provided, that (i) the principal amount thereof is not increased in
connection with such extension, renewal or refunding, (ii) no Default or
Event of Default shall exist at the time of such extension, renewal or
refunding and (iii) such extended, renewed or refunded Debt is not
outstanding beyond the time provided for in clause (3) of this clause (c),
and (3) all of such Debt of any such Subsidiary, and any extension, renewal
or refunding of such Debt of any such Subsidiary, not secured by Liens
permitted under SECTION 10.3 is, on or before the date which is 12 months
after the Acquisition Date with respect to such Subsidiary, either (i)
assumed by the Parent Company or the Issuer, and such Subsidiary is
released of all obligations thereunder, or (ii) refinanced with Debt
permitted to be issued and outstanding under this Agreement other than
pursuant to this clause (c);
(d) Debt of a Subsidiary (other than the Issuer) in addition to that
otherwise permitted by the provisions of this SECTION 10.1; provided that
on the date such Subsidiary incurs or otherwise becomes liable with respect
to any such additional Debt and immediately after giving effect thereto and
to the concurrent retirement of any other Debt (1) no Default or Event of
Default (including, without limitation, under SECTION 11(D) hereof) shall
exist, and (2) such Debt can be incurred within the applicable limitations
provided in SECTION 10.2; and
(e) Debt of the Issuer in addition to that otherwise permitted by the
provisions of this SECTION 10.1; provided that on the date the Issuer
incurs or otherwise becomes liable with respect to any such additional Debt
and immediately after giving effect thereto and to the concurrent
retirement of any other Debt no Default or Event of Default shall exist
(including, without limitation, under SECTION 11(D) hereof).
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Section 10.2. Limitation on Priority Debt. The Issuer will not, at any
time, permit Priority Debt to exceed, or suffer Priority Debt to exist in excess
of, 10% of Consolidated Total Capitalization, provided that at no time shall any
such Priority Debt constitute Designated Debt unless (x) the Notes and the
Parent Company Guaranty are secured and guaranteed equally and ratably with such
Designated Debt pursuant to documentation (including amendments to this
Agreement and the Parent Company Guaranty) in form and substance satisfactory to
the Required Holders, and (y) the holders of such Designated Debt shall have
entered into an intercreditor agreement with the holders that is in form and
substance satisfactory to the Required Holders.
Section 10.3. Limitation on Liens. The Issuer will not, and will not permit
the Parent Company or any Subsidiary to, directly or indirectly create, incur,
assume or permit to exist (upon the happening of a contingency or otherwise),
nor will the Issuer suffer to exist, any Lien on or with respect to any property
or asset (including, without limitation, any document or instrument in respect
of goods or accounts receivable) of the Parent Company or any such Subsidiary,
whether now owned or held or hereafter acquired, or any income or profits
therefrom or assign or otherwise convey any right to receive income or profits,
except:
(a) Liens for taxes, assessments or other governmental charges or
levies which are not yet due and payable or the payment of which is not at
the time required by Section 3.5 of the Parent Company Guaranty;
(b) statutory Liens of landlords, undetermined or inchoate Liens and
other Liens imposed by law such as Liens of carriers, warehousemen,
mechanics, materialmen and other similar Liens, in each case, incurred in
the ordinary course of business for sums not yet due and payable or the
payment of which is not at the time required by Section 3.5 of the Parent
Company Guaranty;
(c) Liens (other than any Lien imposed by ERISA, the Income Tax Act
(Canada), the Pension Benefits Standards Act, 1985 (Canada) and all other
applicable Canadian Federal and provincial statutes or regulations
governing pension plans) incurred or deposits made in the ordinary course
of business (1) in connection with workers' compensation, unemployment
insurance, other types of social security or retirement benefits or
insurance regulatory requirements or (2) to secure (or to obtain letters of
credit that secure) the performance of tenders, statutory obligations,
surety bonds, appeal bonds, bids, leases (other than Capital Leases),
performance bonds, purchase, construction or sales contracts and other
similar obligations, in each case not incurred or made in connection with
the borrowing of money, the obtaining of advances or credit or the payment
of the deferred purchase price of property;
(d) any attachment or judgment Lien, unless the judgment it secures
shall not, within 60 days after the entry thereof, have been discharged or
execution thereof stayed pending appeal, or shall not have been discharged
within 60 days after the expiration of any such stay;
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(e) Liens on property or assets of a Subsidiary securing Debt owing to
the Parent Company or to a Wholly-Owned Subsidiary;
(f) Liens set forth on SCHEDULE 10.4 existing on the Effective Date
securing Debt not exceeding in the aggregate principal amount
U.S.$15,000,000;
(g) leases or subleases granted to others, easements, rights-of-way,
restrictions and other similar charges or encumbrances or minor survey
exceptions, in each case incidental to, and not interfering with, the
ordinary conduct of the business of the Parent Company or any of its
Subsidiaries, provided that such Liens do not, in the aggregate, materially
detract from the value of such property;
(h) any Lien created to secure all or any part of the purchase price,
or to secure Debt incurred or assumed to pay all or any part of the
purchase price or cost of construction, of property (or any improvement
thereon) acquired or constructed by the Parent Company or a Subsidiary
after the Effective Date, provided that
(1) any such Lien shall extend solely to the item or items of
such property (or improvement thereon) so acquired or constructed and,
if required by the terms of the instrument originally creating such
Lien, other property (or improvement thereon) which is an improvement
to or is acquired for specific use in connection with such acquired or
constructed property (or improvement thereon) or which is real
property being improved by such acquired or constructed property (or
improvement thereon),
(2) the principal amount of the Debt secured by any such Lien
shall at no time exceed an amount equal to the lesser of (i) the cost
to the Parent Company or such Subsidiary of the property (or
improvement thereon) so acquired or constructed and (ii) the Fair
Market Value (as determined in good faith by one or more officers of
the Parent Company to whom authority to enter into the subject
transaction has been delegated by the board of directors of the Parent
Company) of such property (or improvement thereon) at the time of such
acquisition or construction,
(3) any such Lien shall be created contemporaneously with, or
within 12 months after, the acquisition or construction of such
property, and
(4) at the time of the incurrence of the Debt secured by such
Liens and after giving effect thereto, no Default or Event of Default
(including, without limitation, under SECTION 11(D) hereof) shall
exist;
(i) any Lien existing on property of a Person immediately prior to its
being consolidated with or merged into the Parent Company or a Subsidiary
or its becoming a Subsidiary, or any Lien existing on any property acquired
by the Parent Company or any Subsidiary at the time such property is so
acquired (whether or not the Debt secured thereby shall have been assumed),
provided that (1) no such Lien shall have been created
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or assumed in contemplation of such consolidation or merger or such
Person's becoming a Subsidiary or such acquisition of property, (2) each
such Lien shall extend solely to the item or items of property so acquired
and, if required by the terms of the instrument originally creating such
Lien, other property which is an improvement to or is acquired for specific
use in connection with such acquired property and (3) the aggregate amount
of all Debt secured by such Liens shall not cause an Event of Default under
SECTION 11(D) hereof;
(j) any Lien renewing, extending or refunding any Lien permitted by
paragraphs (f), (h) or (i) of this SECTION 10.3, provided that (1) the
principal amount of Debt secured by such Lien immediately prior to such
extension, renewal or refunding is not increased or the maturity thereof
reduced, (2) such Lien is not extended to any other property and (3)
immediately after such extension, renewal or refunding no Default or Event
of Default would exist;
(k) reservations, conditions, limitations and exceptions contained in
or implied by statute in the original disposition from the Crown and grants
made by the Crown of interests so reserved or excepted; and
(l) other Liens not otherwise permitted by paragraphs (a) through (k),
inclusive, of this SECTION 10.3, provided that the Debt secured by such
Liens shall be permitted by the limitation set forth in SECTION 10.2 at the
time that the Lien securing such Debt is created and, at the time of and
after giving effect to the incurrence of such Debt, no Default or Event of
Default (including, without limitation, under SECTION 11(D) hereof) shall
exist.
Any Person that becomes a Subsidiary after the Effective Date shall, for
all purposes of this SECTION 10.3, be deemed to have created or incurred, at the
time it becomes a Subsidiary, all outstanding Liens of such Person immediately
after it becomes a Subsidiary, and any Person extending, renewing or refunding
any Debt secured by any Lien shall be deemed to have incurred such Lien at the
time of such extension, renewal or refunding.
Section 10.4. Merger, Consolidation, Etc. The Issuer will not, and will not
permit the Parent Company or any Subsidiary to, consolidate with or merge with
any other corporation or convey, transfer or lease substantially all of its
assets in a single transaction or series of transactions to any Person (except
that a Subsidiary of the Parent Company (other than the Issuer) may (x)
consolidate, merge or amalgamate with, or convey, transfer or lease
substantially all of its assets in a single transaction or series of
transactions to, the Parent Company or a Wholly-Owned Subsidiary of the Parent
Company, as applicable, and (y) convey, transfer or lease all of its assets in
compliance with the provisions of SECTION 10.5 or 10.6), nor will the Issuer
suffer any such consolidation, amalgamation, merger, conveyance, transfer or
lease to occur, provided that the foregoing restrictions do not apply to:
(a) the consolidation, amalgamation or merger of the Parent Company
with, or the conveyance, transfer or lease of substantially all of the
assets of the Parent Company in a single transaction or series of
transactions to, any Person, so long as:
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(1) the successor formed by such consolidation or amalgamation or
the survivor of such merger or the Person that acquires by conveyance,
transfer or lease substantially all of the assets of the Parent
Company as an entirety, as the case may be (the "Successor Entity"),
shall be a solvent legal entity organized and existing under the laws
of the United States or any State thereof (including the District of
Columbia) or Canada or any Province thereof;
(2) if the Parent Company is not the Successor Entity, (1) the
Successor Entity shall have executed and delivered to each holder its
assumption of the due and punctual performance and observance of each
covenant and condition of the Parent Company Guaranty (pursuant to
such agreements and instruments as shall be reasonably satisfactory to
the Required Holders) and (2) the Successor Entity shall have caused
to be delivered to each holder an opinion of counsel of United States
or Canadian national standing (and not an employee of the Parent
Company) or other counsel reasonably satisfactory to the Required
Holders, to the effect that all agreements or instruments effecting
such assumption are enforceable in accordance with their terms and
comply with the terms hereof; and
(3) immediately after giving effect to such transaction, no
Default or Event of Default would exist.
No such conveyance, transfer or lease of substantially all of the
assets of the Parent Company shall have the effect of releasing the
Parent Company or any Successor Entity from its liability under the
Parent Company Guaranty; and
(b) the consolidation, amalgamation or merger of the Issuer with, or
the conveyance, transfer or lease of substantially all of the assets of the
Issuer in a single transaction or series of transactions to, any
Wholly-Owned Subsidiary, so long as:
(1) the successor formed by such consolidation or amalgamation or
the survivor of such merger or the Wholly-Owned Subsidiary that
acquires by conveyance, transfer or lease substantially all of the
assets of the Issuer, as the case may be, as an entirety, as the case
may be (the "Successor Subsidiary"), shall be a solvent corporation
organized and existing under the laws of the United States or any
State thereof (including the District of Columbia);
(2) if the Issuer is not the Successor Subsidiary, (1) the
Successor Subsidiary shall have executed and delivered to each holder
its assumption of the due and punctual performance and observance of
each covenant and condition of this Agreement and the Notes (pursuant
to such agreements and instruments as shall be reasonably satisfactory
to the Required Holders) and (2) the Successor Subsidiary shall have
caused to be delivered to each holder an opinion of counsel of United
States national standing (and not an employee of the Parent Company or
the Issuer) or other counsel reasonably satisfactory to the Required
Holders, to
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the effect that all agreements or instruments effecting such
assumption are enforceable in accordance with their terms and comply
with the terms hereof; and
(3) immediately after giving effect to such transaction, no
Default or Event of Default would exist.
No such conveyance, transfer or lease of substantially all of the
assets of the Issuer shall have the effect of releasing the Issuer or
any Successor Subsidiary from its liability under this Agreement or
the Notes.
Section 10.5. Sale of Assets, Etc. Except as permitted under SECTION 10.4,
SECTION 10.6 and SECTION 10.7, the Issuer will not, and will not permit the
Parent Company or any Subsidiary to, make any Asset Disposition, nor will the
Issuer permit any Asset Disposition to occur, unless:
(a) in the good faith opinion of the Parent Company, the Asset
Disposition is in exchange for consideration having a Fair Market Value at
least equal to that of the property exchanged and is in the best interest
of the Issuer, the Parent Company or such Subsidiary;
(b) immediately after giving effect to the Asset Disposition, no
Default or Event of Default would exist; and
(c) subject to the following paragraph, immediately after giving
effect to the Asset Disposition the Disposition Value of all property that
was the subject of any Asset Disposition occurring in the immediately
preceding period of 12 consecutive months would not exceed 15% of
Consolidated Total Assets as of the end of the then most recently ended
fiscal quarter of the Parent Company.
If the Net Proceeds Amount for any Transfer is applied to a Debt Prepayment
Application or a Property Reinvestment Application, in either case, within 12
months after such Transfer, then such Transfer, only for the purpose of
determining compliance with subsection (c) of this SECTION 10.5 as of a date on
or after the Net Proceeds Amount is so applied, shall be deemed not to be an
Asset Disposition, provided that, in connection with any such Debt Prepayment
Application, the Issuer complies with SECTION 8.7.
Notwithstanding the preceding sentence, the Company shall not be permitted
to apply the Net Proceeds Amount for any Transfer to a Debt Prepayment
Application if, as a result thereof, the Company will have prepaid more than 25%
of the original principal amount of the Notes within five years from the date of
the Closing.
Section 10.6. Sale-and-Leasebacks. The Issuer will not, and will not permit
the Parent Company or any Subsidiary to, enter into any Sale-and-Leaseback
Transaction with respect to any property more than 180 days following the
acquisition or occupancy of such property by the Issuer, the Parent Company or
such Subsidiary, whichever is later, nor will the Issuer suffer any such Sale
and Leaseback Transaction to occur, unless:
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(a) the term of the lease in respect of such Sale-and-Leaseback
Transaction, including all renewal terms, shall not exceed three years;
(b) such Sale-and-Leaseback Transaction constitutes a sale by a
Subsidiary to the Parent Company or by the Parent Company to a Wholly-Owned
Subsidiary;
(c) the Net Proceeds Amount received by the Issuer, the Parent Company
or such Subsidiary in respect of such Sale-and-Leaseback Transaction is
applied within 12 months of the consummation thereof to a Debt Prepayment
Application or a Property Reinvestment Application, provided that such
Sale-and-Leaseback Transaction satisfies the requirements of SECTION 10.5
including, without limitation, the requirement that, in connection with any
Debt Prepayment Application of the Net Proceeds Amount from any such
Sale-and-Leaseback Transaction, the Issuer comply with SECTION 8.7; or
(d) immediately after giving effect thereto, the aggregate amount of
Priority Debt does not exceed 10% of Consolidated Total Capitalization
determined at such time and no Default or Event of Default would exist.
Section 10.7. Disposal of Ownership of a Subsidiary. The Issuer will not,
and will not permit the Parent Company or any Subsidiary to, sell or otherwise
dispose of any Subsidiary Shares, nor will the Issuer, or will the Issuer permit
any Subsidiary to, issue, sell or otherwise dispose of any shares of its own
share capital, nor will the Issuer suffer any such sale, disposition or issuance
to occur, provided that the foregoing restrictions do not apply to:
(a) the issue of directors' qualifying shares by any Subsidiary;
(b) any Transfer of Subsidiary Shares constituting a Transfer
described in clause (a) of the definition of "Asset Disposition;" and
(c) the Transfer of the Subsidiary Shares of a Subsidiary of the
Parent Company owned by the Parent Company and its other Subsidiaries;
provided that such Transfer satisfies the requirements of SECTION 10.5
including, without limitation, the requirement that, in connection with any
Debt Prepayment Application of the Net Proceeds Amount from any such
Transfer, the Issuer comply with SECTION 8.7.
Section 10.8. Nature of Business. The Issuer will not, and will not permit
any of its Subsidiaries to, engage in any business if, as a result, the general
nature of the business in which the Parent Company and its Subsidiaries, taken
as a whole, would then be engaged would be substantially changed from the
general nature of the business in which the Parent Company and its Subsidiaries,
taken as a whole, are engaged on the Effective Date.
Section 10.9. Transactions with Affiliates. The Issuer will not, and will
not permit any Subsidiary to, enter into directly or indirectly any Material
transaction or Material group of related transactions (including, without
limitation, the purchase, lease, sale or exchange of properties of any kind or
the rendering of any service) with any Affiliate (other than the Parent Company
or another Subsidiary), except in the ordinary course and pursuant to the
reasonable
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requirements of the Issuer's or such Subsidiary's business and upon fair and
reasonable terms no less favorable to the Issuer or such Subsidiary than would
be obtainable in a comparable arm's-length transaction with a Person not an
Affiliate.
Section 10.10. Sales of Receivables. The Issuer covenants that it will not,
and will not permit the Parent Company or any Subsidiary to, discount, pledge or
sell (with or without recourse) any of its accounts or notes receivable, nor
will the Issuer suffer any such discount, pledge or sale to occur.
Section 10.11. Most Favored Lender Status. The Issuer will not, and will
not permit any Subsidiary to, enter into, assume or otherwise become bound or
obligated under any agreement evidencing, securing, guaranteeing or otherwise
relating to Designated Debt that contains, or amend any such agreement to
contain, one or more Additional Covenants or Additional Defaults, unless the
Issuer or such Subsidiary has offered to make an amendment to this Agreement, in
form and substance satisfactory to the Required Holders, to add to or amend this
Agreement to contain such Additional Covenants or Additional Defaults; provided,
however, in the event that the Issuer or any Subsidiary enters into, assumes or
otherwise becomes bound or obligated under, or so amends, any such agreement
without making such offer, or if such offer was made and has not been rejected
by the Required Holders, this Agreement shall, without any further action on the
part of the Parent Company, the Issuer or any of the holders, be deemed to be
amended automatically to include each Additional Covenant and each Additional
Default contained in such agreement. The Issuer further covenants to, and to
cause each of its Subsidiaries to, promptly execute and deliver at its expense
(including the reasonable fees and expenses of counsel for the holders) an
amendment to this Agreement in form and substance satisfactory to the Required
Holders evidencing the amendments of this Agreement to include such Additional
Covenants and Additional Defaults, provided that the execution and delivery of
such amendments shall not be a precondition to the effectiveness of such
amendment as provided for in this SECTION 10.11, but shall merely be for the
convenience of the parties hereto. - Note: Parent Company would like to discuss
this requirement.
Section 10.12. Restricted Payments. (a) The Issuer will not:
(i) Declare or pay any dividends or distributions, either in cash
or property, on or in respect of any of its Equity Interests of any
class (except dividends or other distributions payable solely in
Equity Interests of the Issuer);
(ii) Directly or indirectly, or through any Subsidiary or through
any Affiliate of the Issuer, purchase, redeem or retire any of its
Equity Interests of any class or any warrants, rights or options to
purchase or acquire any of its Equity Interests (other than in
exchange for or out of the net cash proceeds to the Issuer from the
substantially concurrent issue or sale of Equity Interests of the
Issuer or warrants, rights or options to purchase or acquire any of
its Equity Interests); or
(iii) Make any other payment or distribution, either directly or
indirectly or through any Subsidiary, in respect of its Equity
Interests;
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(such declarations or payments of dividends, purchases, redemptions or
retirements of Equity Interests and warrants, rights or options and all such
other payments or distributions being herein collectively called "Restricted
Payments"), if immediately prior to or immediately after giving effect to any
such Restricted Payment, a Default or Event of Default would exist.
Section 10.13. Limitations on Restrictive Agreements. The Issuer will not,
and will not permit any Subsidiary to, enter into, or suffer to exist, any
agreement with any Person which, directly or indirectly, prohibits or limits the
ability of any Subsidiary to (a) pay dividends or make other distributions to
the Issuer or prepay any Debt owed to the Issuer or (b) transfer any of its
properties or assets to the Issuer (other than with respect to assets subject to
Liens permitted by SECTION 10.3).
SECTION 11. EVENTS OF DEFAULT.
An "Event of Default" shall exist if any of the following conditions or
events shall occur and be continuing:
(a) the Issuer defaults in the payment of any principal or Make-Whole
Amount, if any, on any Note when the same becomes due and payable, whether
at maturity or at a date fixed for prepayment or by declaration or
otherwise; or
(b) the Issuer defaults in the payment of any interest on any Note or
the Issuer defaults in the payment of any Tax Indemnity Amount under
SECTION 8.8, in either case for more than five Business Days after the same
becomes due and payable; or
(c) (I) the Parent Company defaults in the performance of or
compliance with any term contained in (1) Section 4.5 of the Parent Company
Guaranty with respect to any provision in SECTION 10.1 or 10.2 of this
Agreement, inclusive, or (2) Section 4.1 through 4.4 of the Parent Company
Guaranty, inclusive, or Section 4.5 of the Parent Company with respect to
any provision in Section 10.3 through 10.13 of this Agreement, inclusive,
and, in the case of this clause (2), such default is not remedied within 10
Business Days after the earlier of (i) a Responsible Officer of the Parent
Company obtaining actual knowledge of such default and (ii) the Parent
Company receiving written notice of such default from any holder of a Note
(any such written notice to be identified as a "notice of default" and to
refer specifically to clause (2) of this paragraph (c)(I)), or (II) the
Issuer defaults in the performance of or compliance with any term contained
in (1) SECTION 8.7 or SECTION 10.1 through 10.2, inclusive, or (2) SECTION
10.3 through 10.13, inclusive, and, in the case of this clause (2), such
default is not remedied within 10 Business Days after the earlier of (i) a
Responsible Officer of the Parent Company or the Issuer obtaining actual
knowledge of such default and (ii) the Parent Company or Issuer receiving
written notice of such default from any holder of a Note (any such written
notice to be identified as a "notice of default" and to refer specifically
to clause (2) of this paragraph (c)(II); or
(d) Any of the following shall occur:
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(1) Consolidated Net Worth shall at any time be less than the sum
of (a) U.S.$325,000,000, plus (b) an aggregate amount equal to 25% of
Consolidated Net Income (but, in each case, only if a positive number)
for each completed fiscal quarter of the Parent Company beginning with
the fiscal quarter ended March 31, 2005; or
(2) Consolidated Debt shall at any time exceed 45% of
Consolidated Total Capitalization; or
(3) The Minimum Interest Coverage Ratio at any time is less than
3.0 to 1.0; or
(e) the Parent Company defaults in the performance of or compliance
with any term of the Parent Company Guaranty (other than those referred to
in paragraph (c)(I) of this Section 11 or Section 4.5 of the Parent Company
Guaranty as it relates to SECTION 11(D)) or the Issuer defaults in the
performance of or compliance with any term contained herein (other than
those referred to in paragraphs (a), (b), (c)(II) or (d) of this SECTION
11) and such default is not remedied within 30 days after the earlier of
(1) a Responsible Officer of the Parent Company or the Issuer obtaining
actual knowledge of such default and (2) the Parent Company or the Issuer
receiving written notice of such default from any holder of a Note (any
such written notice to be identified as a "notice of default" and to refer
specifically to this paragraph (e) of SECTION 11); or
(f) any representation or warranty made in writing by or on behalf of
the Parent Company or by any officer of the Parent Company in the Parent
Company Guaranty or in any writing furnished in connection with the
transactions contemplated by the Parent Company Guaranty, this Agreement or
such writing proves to have been false or incorrect in any material respect
on the date as of which made or any representation or warranty made in
writing by or on behalf of the Issuer or by any officer of the Issuer in
this Agreement or in any writing furnished in connection with the
transactions contemplated hereby or thereby proves to have been false or
incorrect in any material respect on the date as of which made; or
(g) (1) the Parent Company, the Issuer or any other Subsidiary of the
Parent Company is in default (as principal or as guarantor or other surety)
in the payment of any principal of or premium or make-whole amount or
interest on any Debt that is outstanding in an aggregate principal amount
of at least U.S.$5,000,000 beyond any period of grace provided with respect
thereto, or (2) the Parent Company, the Issuer or any other Subsidiary of
the Parent Company is in default in the performance of or compliance with
any term of any evidence of any Debt in an aggregate outstanding principal
amount of at least U.S.$5,000,000 or of any mortgage, indenture or other
agreement relating thereto or any other condition exists, and as a
consequence of such default or condition such Debt has become, or has been
declared, due and payable before its stated maturity or before its
regularly scheduled dates of payment and such declaration has not been
annulled or rescinded, or (3) as a consequence of the occurrence or
continuation of any event or condition (other than the passage of time or
the right of the
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holder of Debt to convert such Debt into equity interests), the Parent
Company, the Issuer or any other Subsidiary of the Parent Company has
become obligated to purchase or repay Debt before its regular maturity or
before its regularly scheduled dates of payment in an aggregate outstanding
principal amount of at least U.S.$5,000,000; or
(h) the Parent Company, the Issuer or any Material Subsidiary (1) is
generally not paying, or admits in writing its inability to pay, its debts
as they become due, (2) files, or consents by answer or otherwise to the
filing against it of, a petition for relief or reorganization or
arrangement or any other petition in bankruptcy, for liquidation or to take
advantage of any bankruptcy, insolvency, amalgamation, reorganization,
moratorium or other similar law of any jurisdiction, (3) makes an
assignment for the benefit of its creditors, (4) consents to the
appointment of a custodian, receiver, trustee or other officer with similar
powers with respect to it or with respect to any substantial part of its
property, (5) is adjudicated as insolvent or to be liquidated or (6) takes
action for the purpose of any of the foregoing; or
(i) a court or governmental authority of competent jurisdiction enters
an order appointing, without consent by the Parent Company, the Issuer or
any of its Material Subsidiaries, a custodian, receiver, trustee or other
officer with similar powers with respect to it or with respect to any
substantial part of its property, or constituting an order for relief or
approving a petition for relief or reorganization or any other petition in
bankruptcy or for liquidation or to take advantage of any bankruptcy or
insolvency law of any jurisdiction, or ordering the amalgamation,
dissolution, winding-up or liquidation of the Parent Company, the Issuer or
any Material Subsidiary, or any such petition shall be filed against the
Parent Company, the Issuer or any Material Subsidiary and such petition
shall not be dismissed within 60 days; or
(j) a final judgment or judgments for the payment of money resulting
in liability (exclusive of amounts fully covered by valid and collectible
insurance in respect thereof), aggregating in excess of U.S.$5,000,000 are
rendered against one or more of the Parent Company, the Issuer and the
other Subsidiaries of the Parent Company and which judgments are not,
within 60 days after entry thereof, bonded, discharged or stayed pending
appeal, or are not discharged within 60 days after the expiration of such
stay; or
(k) the Parent Company Guaranty or any provision in the Parent Company
Guaranty shall at any time for any reason be terminated or cease to be
valid and binding on the Parent Company, or shall be declared to be null
and void, or the validity or enforceability thereof shall be contested by
the Parent Company, or the Parent Company shall deny that the Parent
Company has any further liability or obligation under the Parent Company
Guaranty; or
(l) the Parent Company shall at any time cease to own, directly or
indirectly, 100% of all outstanding partnership interests of the Issuer; or
(m) if (1) any Plan shall fail to satisfy the minimum funding
standards of ERISA or the Code for any plan year or part thereof or a
waiver of such standards or
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extension of any amortization period is sought or granted under Section 412
of the Code, (2) a notice of intent to terminate any Plan shall have been
or is reasonably expected to be filed with the PBGC or the PBGC shall have
instituted proceedings under ERISA Section 4042 to terminate or appoint a
trustee to administer any Plan or the PBGC shall have notified the Parent
Company or any ERISA Affiliate that a Plan may become a subject of any such
proceedings, (3) the aggregate "amount of unfunded benefit liabilities"
(within the meaning of Section 4001(a)(18) of ERISA) under all Plans,
determined in accordance with Title IV of ERISA, shall exceed
U.S.$5,000,000, (4) the Parent Company or any ERISA Affiliate shall have
incurred or is reasonably expected to incur any liability pursuant to Title
I or IV of ERISA or the penalty or excise tax provisions of the Code
relating to employee benefit plans, (5) the Parent Company or any ERISA
Affiliate withdraws from any Multiemployer Plan or (6) the Parent Company
or any ERISA Affiliate establishes or amends any employee welfare benefit
plan that provides post-employment welfare benefits in a manner that would
increase the liability of the Parent Company or any ERISA Affiliate
thereunder; and any such event or events described in clauses (1) through
(6) above, either individually or together with any other such event or
events, could reasonably be expected to have a Material Adverse Effect. As
used in Section 11(m), the terms "employee benefit plan" and "employee
welfare benefit plan" shall have the respective meanings assigned to such
terms in Section 3 of ERISA.
SECTION 12. REMEDIES ON DEFAULT, ETC.
Section 12.1. Acceleration. (a) If an Event of Default with respect to the
Issuer or the Parent Company described in paragraph (h) or (i) of SECTION 11
(other than an Event of Default described in clause (1) of paragraph (h) or
described in clause (6) of paragraph (h) by virtue of the fact that such clause
encompasses clause (1) of paragraph (h)) has occurred, all the Notes then
outstanding shall automatically become immediately due and payable.
(b) If any other Event of Default has occurred and is continuing, any
holder or holders of not less than 51% in principal amount of the Notes at the
time outstanding may at any time at its or their option, by notice or notices to
the Issuer, declare all the Notes then outstanding to be immediately due and
payable.
(c) If any Event of Default described in paragraph (a) or (b) of SECTION 11
has occurred and is continuing, any holder or holders of Notes at the time
outstanding affected by such Event of Default may at any time, at its or their
option, by notice or notices to the Issuer, declare all the Notes held by it or
them to be immediately due and payable.
Upon any Note becoming due and payable under this SECTION 12.1, whether
automatically or by declaration, such Note will forthwith mature and the entire
unpaid principal amount of such Note, plus (1) all accrued and unpaid interest
thereon and (2) the Make-Whole Amount, if any, determined in respect of such
principal amount (to the full extent permitted by applicable law), shall all be
immediately due and payable, in each and every case without presentment, demand,
protest or further notice, all of which are hereby waived. The Issuer
acknowledges, and the parties hereto agree, that each holder has the right to
maintain its investment in the Notes free from repayment by the Issuer (except
as herein specifically provided
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for), and that the provision for payment of a Make-Whole Amount by the Issuer if
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.
Section 12.2. Other Remedies. If any Default or Event of Default has
occurred and is continuing, and irrespective of whether any Notes have become or
have been declared immediately due and payable under SECTION 12.1, the holder of
any Note at the time outstanding may proceed to protect and enforce the rights
of such holder by an action at law, suit in equity or other appropriate
proceeding, whether for the specific performance of any agreement contained
herein or in any Note, or for an injunction against a violation of any of the
terms hereof or thereof, or in aid of the exercise of any power granted hereby
or thereby or by law or otherwise.
Section 12.3. Rescission. At any time after any Notes have been declared
due and payable pursuant to clause (b) or (c) of SECTION 12.1, the holders of
not less than 51% in principal amount of the Notes then outstanding, by written
notice to the Issuer, may rescind and annul any such declaration and its
consequences if (a) the Issuer has paid all overdue interest on the Notes, all
principal of and Make-Whole Amount, if any, on any Notes that are due and
payable and are unpaid other than by reason of such declaration, and all
interest on such overdue principal and Make-Whole Amount, if any, and (to the
extent permitted by applicable law) any such overdue interest in respect of the
Notes at the Default Rate, (b) all Events of Default and Defaults, other than
non-payment of amounts that have become due solely by reason of such
declaration, have been cured or have been waived pursuant to SECTION 17 and (c)
no judgment or decree has been entered for the payment of any monies due
pursuant hereto or to the Notes. No rescission and annulment under this SECTION
12.3 will extend to or affect any subsequent Event of Default or Default or
impair any right consequent thereon.
Section 12.4. No Waivers or Election of Remedies, Expenses, Etc. No course
of dealing and no delay on the part of any holder in exercising any right, power
or remedy shall operate as a waiver thereof or otherwise prejudice such holder's
rights, powers or remedies. No right, power or remedy conferred by this
Agreement or by any Note upon any holder shall be exclusive of any other right,
power or remedy referred to herein or therein or now or hereafter available at
law, in equity, by statute or otherwise. Without limiting the obligations of the
Issuer under SECTION 15, the Issuer will pay to each holder on demand such
further amount as shall be sufficient to cover all costs and expenses of such
holder incurred in any enforcement or collection under this SECTION 12,
including, without limitation, reasonable attorneys' fees, expenses and
disbursements.
SECTION 13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES.
Section 13.1. Registration of Notes. The Issuer shall keep at its principal
executive office a register for the registration and registration of transfers
of Notes. The name and address of each holder of one or more Notes, each
transfer thereof and the name and address of each transferee of one or more
Notes shall be registered in such register. Prior to due presentment for
registration of transfer, the Person in whose name any Note shall be registered
shall be deemed and treated as the owner and holder thereof for all purposes
hereof, and the Issuer shall not be affected by any notice or knowledge to the
contrary. The Issuer shall give to any holder that is
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an Institutional Investor promptly upon request therefor, a complete and correct
copy of the names and addresses of all registered holders of Notes.
Section 13.2. Transfer and Exchange of Notes. Upon surrender of any Note at
the principal executive office of the Issuer for registration of transfer or
exchange (and in the case of a surrender for registration of transfer, duly
endorsed or accompanied by a written instrument of transfer duly executed by the
holder of such Note or its attorney duly authorized in writing and accompanied
by the address for notices of each transferee of such Note or part thereof), the
Issuer shall execute and deliver, at the Issuer's expense (except as provided
below), one or more new Notes of the same series (as requested by the holder
thereof) evidencing the same indebtedness 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 the Note originally issued hereunder.
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 Issuer 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 U.S.$100,000, provided that if
necessary to enable the registration of transfer by a holder of its entire
holding of Notes of a series one Note of such series may be in a denomination of
less than U.S.$100,000. Any transferee, by its acceptance of a Note registered
in its name (or the name of its nominee), shall be deemed to have made the
representation set forth in SECTION 6.2.
Section 13.3. Replacement of Notes. Upon receipt by the Issuer of evidence
reasonably satisfactory to it of the ownership of and the loss, theft,
destruction or mutilation of any Note (which evidence shall be, in the case of
an Institutional Investor, notice from such Institutional Investor of such
ownership and such loss, theft, destruction or mutilation), and
(a) in the case of loss, theft or destruction, of indemnity reasonably
satisfactory to it (provided that if the holder of such Note is, or is a
nominee for, an original Noteholder or another holder with a minimum net
worth of at least U.S.$50,000,000, such Person's own unsecured agreement of
indemnity shall be deemed to be satisfactory), or
(b) in the case of mutilation, upon surrender and cancellation
thereof,
the Issuer at its own expense shall execute and deliver, in lieu thereof, a new
Note of the same series, dated and bearing interest from the date to which
interest shall have been paid on such lost, stolen, destroyed or mutilated Note
or dated the date of such lost, stolen, destroyed or mutilated Note if no
interest shall have been paid thereon.
SECTION 14. PAYMENTS ON NOTES.
Section 14.1. Place of Payment. Subject to SECTION 14.2, payments of
principal, Make-Whole Amount, if any, and interest becoming due and payable on
the Notes shall be made in New York, New York at the principal office of
JPMorgan Chase Bank in such jurisdiction. The
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Issuer may at any time, by notice to each holder, change the place of payment of
the Notes so long as such place of payment shall be either the principal office
of the Issuer in such jurisdiction or the principal office of a bank or trust
company in such jurisdiction.
Section 14.2. Home Office Payment. So long as any Noteholder named on
SCHEDULE A hereto or its nominee shall be the holder of any Note, and
notwithstanding anything contained in SECTION 14.1 or in such Note to the
contrary, the Issuer will pay all sums becoming due on such Note for principal,
Make-Whole Amount, if any, and interest by the method and at the address
specified for such purpose for such Noteholder on SCHEDULE A hereto or by such
other method or at such other address as such Noteholder shall have from time to
time specified to the Issuer in writing for such purpose, without the
presentation or surrender of such Note or the making of any notation thereon,
except that upon written request of the Issuer made concurrently with or
reasonably promptly after payment or prepayment in full of any Note, such
Noteholder shall surrender such Note for cancellation, reasonably promptly after
any such request, to the Issuer at its principal executive office or at the
place of payment most recently designated by the Issuer pursuant to SECTION
14.1. Prior to any sale or other disposition of any Note held by any Noteholder
or its nominee such Person will, at such Person's election, either endorse
thereon the amount of principal paid thereon and the last date to which interest
has been paid thereon or surrender such Note to the Issuer in exchange for a new
Note or Notes pursuant to SECTION 13.2. Each holder, by its acceptance of a
Note, will be deemed to have agreed to be bound by and entitled to the benefits
of this SECTION 14.2 as though it were a party to this Agreement.
SECTION 15. EXPENSES, ETC.
Section 15.1. Transaction Expenses. Whether or not the transactions
contemplated hereby are consummated, the Issuer will pay all reasonable costs
and expenses (including reasonable attorneys' fees of a special counsel and, if
reasonably required, local or other counsel) incurred by each Noteholder or
holder in connection with such transactions and any amendments, waivers or
consents under or in respect of this Agreement, the Notes or the Parent Company
Guaranty (whether or not such amendment, waiver or consent becomes effective),
including, without limitation: (a) the reasonable costs and expenses incurred in
enforcing or defending (or determining whether or how to enforce or defend) any
rights under this Agreement, the Notes or the Parent Company Guaranty or in
responding to any subpoena or other legal process or informal investigative
demand issued in connection with this Agreement, the Notes or the Parent Company
Guaranty, or by reason of being a holder of any Note, and (b) the reasonable
costs and expenses, including reasonable financial advisors' fees, incurred in
connection with the insolvency or bankruptcy of the Parent Company, the Issuer
or any other Subsidiary of the Parent Company or in connection with any work-out
or restructuring of the transactions contemplated hereby, by the Notes and by
the Parent Company Guaranty. The Issuer will pay, and will save each Noteholder
and each other holder of a Note harmless from, all claims in respect of any
fees, costs or expenses, if any, of brokers and finders (other than those
retained by such Person).
Section 15.2. Survival. The obligations of the Issuer under this Section 15
will survive the payment or transfer of any Note, the enforcement, amendment or
waiver of any provision of
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this Agreement, the Notes or the Parent Company Guaranty, and the termination of
this Agreement.
SECTION 16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT.
All representations and warranties contained herein shall survive the
execution and delivery of this Agreement and the Notes, the purchase or transfer
by any Noteholder or subsequent holder of any such Note or portion thereof or
interest therein and the payment of any Note, and may be relied upon by any
subsequent holder of a Note, regardless of any investigation made at any time by
or on behalf of any Noteholder or any subsequent holder of a Note. All
statements contained in any certificate or other instrument delivered by or on
behalf of the Issuer pursuant to this Agreement shall be deemed representations
and warranties of the Issuer under this Agreement. Subject to the preceding
sentence, this Agreement and the Notes embody the entire agreement and
understanding between the Noteholders and the Issuer and supersede all prior
agreements and understandings relating to the subject matter hereof.
SECTION 17. AMENDMENT AND WAIVER.
Section 17.1. Requirements. This Agreement, the Notes and the Parent
Company Guaranty may be amended, and the observance of any term hereof or of the
Notes may be waived (either retroactively or prospectively), with (and only
with) the written consent of the Issuer (except amendments which occur pursuant
to Section 4.3 of the Parent Company Guaranty and Section 10.11 hereof) as set
forth and any holder or holders of not less than 51% in principal amount of
Notes at the time outstanding, except that (a) no amendment or waiver of any of
the provisions of SECTION 1, 2, 3, 4, 5, 6 or 21 hereof, or any defined term (as
it is used in any such Section), will be effective as to any holder of Notes
unless consented to by such holder in writing, and (b) no such amendment or
waiver may, without the written consent of the holder of each Note at the time
outstanding affected thereby, (1) subject to the provisions of SECTION 12
relating to acceleration or rescission, change the amount or time of any
prepayment or payment of principal of, or reduce the rate or change the time of
payment or method of computation of interest or of the Make-Whole Amount on, the
Notes, (2) change the percentage of the principal amount of the Notes the
holders of which are required to consent to any such amendment or waiver, (3)
amend any of SECTIONS 8, 11(A), 11(B), 12, 17 or 20 hereof, or (4) releasing the
Parent Company from the Parent Company Guaranty or amend any of the terms and
provisions of Section 2 thereof.
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Section 17.2. Solicitation of Holders of Notes.
(a) Solicitation. The Issuer will provide each holder of the Notes
(irrespective of the amount of Notes then owned by it) with sufficient
information, sufficiently far in advance of the date a decision is required, to
enable such holder to make an informed and considered decision with respect to
any proposed amendment, waiver or consent in respect of any of the provisions
hereof or of the Notes. The Issuer will deliver executed or true and correct
copies of each amendment, waiver or consent effected pursuant to the provisions
of this SECTION 17 to each holder of outstanding Notes promptly following the
date on which it is executed and delivered by, or receives the consent or
approval of, the requisite holders of Notes.
(b) Payment. The Issuer will not directly or indirectly pay or cause to be
paid any remuneration, whether by way of supplemental or additional interest,
fee or otherwise, or grant any security, to any holder of Notes as consideration
for or as an inducement to the entering into by such holder of Notes of any
waiver or amendment of any of the terms and provisions hereof, or of the Notes
unless such remuneration is concurrently paid, or security is concurrently
granted, on the same terms, ratably to each holder of Notes then outstanding
even if such holder did not consent to such waiver or amendment.
Section 17.3. Binding Effect, Etc. Any amendment or waiver consented to as
provided in this SECTION 17 applies equally to all holders of Notes affected
thereby and is binding upon them and upon each future holder of any Note and
upon the Issuer without regard to whether such Note has been marked to indicate
such amendment or waiver. No such amendment or waiver will extend to or affect
any obligation, covenant, agreement, Default or Event of Default not expressly
amended or waived or impair any right consequent thereon. No course of dealing
between the Issuer and the holder of any Note nor any delay in exercising any
rights hereunder or under any Note shall operate as a waiver of any rights of
any holder of such Note. As used herein, the term "this Agreement" and
references thereto shall mean this Agreement as it may from time to time be
amended or supplemented.
Section 17.4. Notes Held by Parent Company, Etc. Solely for the purpose of
determining whether the holders of the requisite percentage of the aggregate
principal amount of Notes then outstanding approved or consented to any
amendment, waiver or consent to be given under this Agreement or the Notes, or
have directed the taking of any action provided herein or in the Notes to be
taken upon the direction of the holders of a specified percentage of the
aggregate principal amount of Notes then outstanding, Notes directly or
indirectly owned by the Parent Company, the Issuer, any other Subsidiaries of
the Parent Company or any Affiliates of the Parent Company shall be deemed not
to be outstanding.
SECTION 18. NOTICES.
All notices and communications provided for hereunder shall be in writing
and sent (a) by facsimile if the sender on the same day sends a confirming copy
of such notice by a recognized overnight delivery service (charges prepaid), or
(b) by registered or certified mail with return receipt requested (postage
prepaid), or (c) by a recognized overnight delivery service (charges prepaid).
Any such notice must be sent:
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(1) if to a Noteholder or its nominee, to such Noteholder or its
nominee at the address specified for such communications in SCHEDULE A to
this Agreement, or at such other address as such Noteholder or its nominee
shall have specified to the Issuer in writing,
(2) if to any other holder of any Note, to such holder at such address
as such other holder shall have specified to the Issuer in writing, or
(3) if to the Issuer, to the Issuer at its address set forth at the
beginning hereof to the attention of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Chief Legal Officer,
with a copy to Hub International Limited, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Chief Legal Officer,
or at such other address as the Issuer shall have specified to the holder
of each Note in writing.
Notices under this SECTION 18 will be deemed given only when actually received.
SECTION 19. REPRODUCTION OF DOCUMENTS.
This Agreement and all documents relating hereto, including, without
limitation, (a) consents, waivers and modifications that may hereafter be
executed, (b) documents received by each Noteholder on the Effective Date, and
(c) financial statements, certificates and other information previously or
hereafter furnished to any holder of the Notes, may be reproduced by such holder
by any photographic, photostatic, microfilm, microcard, miniature photographic
or other similar process and such holder may destroy any original document so
reproduced. The Issuer agrees and stipulates that, to the extent permitted by
applicable law, any such reproduction shall be admissible in evidence as the
original itself in any judicial or administrative proceeding (whether or not the
original is in existence and whether or not such reproduction was made by such
holder in the regular course of business) and any enlargement, facsimile or
further reproduction of such reproduction shall likewise be admissible in
evidence. This SECTION 19 shall not prohibit the Issuer or any other holder of
Notes from contesting any such reproduction to the same extent that it could
contest the original, or from introducing evidence to demonstrate the inaccuracy
of any such reproduction.
SECTION 20. CONFIDENTIAL INFORMATION.
For the purposes of this SECTION 20, "Confidential Information" means
information delivered to any Noteholder by or on behalf of the Parent Company or
any Subsidiary in connection with the transactions contemplated by or otherwise
pursuant to this Agreement that is proprietary in nature and that was clearly
marked or labeled or otherwise adequately identified when received by such
Noteholder as being confidential information of the Parent Company or such
Subsidiary, provided that such term does not include information that (a) was
publicly known or otherwise known to such Noteholder prior to the time of such
disclosure, (b) subsequently becomes publicly known through no act or omission
by such Noteholder or any Person acting on such Noteholder's behalf, (c)
otherwise becomes known to such Noteholder other than through disclosure by the
Parent Company or any Subsidiary or (d) constitutes financial statements
delivered to such Noteholder under Section 7.1 or Section 3.1 of the Parent
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Company Guaranty that are otherwise publicly available. Each Noteholder will
maintain the confidentiality of such Confidential Information in accordance with
procedures adopted by such Noteholder in good faith to protect confidential
information of third parties delivered to such Noteholder, provided that such
Noteholder may deliver or disclose Confidential Information to (1) such
Noteholder's directors, trustees, officers, employees, agents, attorneys and
affiliates (to the extent such disclosure reasonably relates to the
administration of the investment represented by such Noteholder's Notes), (2)
such Noteholder's financial advisors and other professional advisors who agree
to hold confidential the Confidential Information substantially in accordance
with the terms of this SECTION 20, (3) any other holder of any Note, (4) any
Institutional Investor to which such Noteholder sells or offers to sell such
Note or any part thereof or any participation therein (if such Person has agreed
in writing prior to its receipt of such Confidential Information to be bound by
the provisions of this SECTION 20), (5) any Person from which such Noteholder
offers to purchase any security of the Issuer or the Parent Company (if such
Person has agreed in writing prior to its receipt of such Confidential
Information to be bound by the provisions of this SECTION 20), (6) any Federal,
provincial or state regulatory authority having jurisdiction over such
Noteholder, (7) the National Association of Insurance Commissioners or any
similar organization, or any nationally recognized rating agency that requires
access to information about such Noteholder's investment portfolio or (8) any
other Person to which such delivery or disclosure may be necessary or
appropriate (i) to effect compliance with any law, rule, regulation or order
applicable to such Noteholder, (ii) in response to any subpoena or other legal
process, (iii) in connection with any litigation to which such Noteholder is a
party or (iv) if an Event of Default has occurred and is continuing, to the
extent such Noteholder may reasonably determine such delivery and disclosure to
be necessary or appropriate in the enforcement or for the protection of the
rights and remedies under such Noteholder's Notes and this Agreement.
Notwithstanding anything to the contrary in this SECTION 20, the Issuer agrees
that the holders shall not have any obligation to maintain as confidential any
information with respect to the "tax treatment" and "tax structure" (in each
case, within the meaning of Treasury Regulation Section 1.6011-4) of the
transactions contemplated in this Agreement, the Notes and the Parent Company
Guaranty and all materials of any kind (including opinions or other tax
analyses) that are provided to the holders relating to such tax treatment and
tax structure. Each holder of a Note, by its acceptance of a Note, will be
deemed to have agreed to be bound by and to be entitled to the benefits of this
SECTION 20 as though it were a party to this Agreement. On reasonable request by
the Issuer 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 Issuer
embodying the provisions of this SECTION 20.
SECTION 21. SUBSTITUTION OF NOTEHOLDER.
Each Noteholder shall have the right to substitute any one of such
Noteholder's Affiliates as the purchaser of the Notes that such Noteholder has
agreed to purchase hereunder, by written notice to the Issuer, which notice
shall be signed by both such Noteholder and such Affiliate, shall contain such
Affiliate's agreement to be bound by this Agreement and shall contain a
confirmation by such Affiliate of the accuracy with respect to it of the
representations set forth in SECTION 6. Upon receipt of such notice, wherever
the word "Noteholder" is used in this Agreement (other than in this SECTION 21),
such word shall be deemed to refer to such Affiliate in
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lieu of such Noteholder. If such Affiliate is so substituted as a noteholder
hereunder and such Affiliate thereafter transfers to such Noteholder all of the
Notes then held by such Affiliate, upon receipt by the Issuer of notice of such
transfer, wherever the word "Noteholder" is used in this Agreement (other than
in this SECTION 21), such word shall no longer be deemed to refer to such
Affiliate, but shall refer to such Noteholder, and such Noteholder shall have
all the rights of an original holder of the Notes under this Agreement.
SECTION 22. SUBMISSION TO JURISDICTION, NORMAL RATES, ETC.
Section 22.1. Submission to Jurisdiction. The Issuer hereby irrevocably
consents and submits to the non-exclusive jurisdiction of any court located
within the State of New York sitting in the Borough of Manhattan and the United
States District Court for the Southern District of New York and irrevocably
agrees that all actions or proceedings relating to this Agreement or the Notes
may be litigated in such courts, and the Issuer irrevocably waives any objection
which it may have based on improper venue or forum non conveniens to the conduct
of any proceeding in any such court. The Issuer hereby irrevocably appoints,
with respect to any suit or proceeding that may be initiated hereunder or under
the Notes, Hub International Northeast, Inc. as the Issuer's agent for the
purpose of accepting service of process within the State of New York and agrees
to retain and consents that all such service of process be made by mail or
messenger directed to its General Counsel at its office located at ▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, with a copy to the Parent Company's
General Counsel at its office located at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ or at such other address of Hub International Northeast, Inc.
located in the State of New York, as may be designated by the Issuer by notice
to each holder of Notes and that service so made shall be deemed to be completed
upon the earlier of actual receipt or three Business Days after the same shall
have been posted to the Issuer. Nothing contained in this Section 22.1 shall
affect the right of any holder of Notes to serve legal process in any other
manner permitted by law or to bring any action or proceeding in the courts of
any jurisdiction against the Issuer or to enforce a judgment obtained in the
courts of any other jurisdiction.
Section 22.2. Normal Rates. The principle of deemed reinvestment of
interest shall not apply to any interest calculation under this Agreement or the
Notes. All interest payments to be made hereunder shall be paid without
allowance or deduction for deemed reinvestment or otherwise, before and after
demand, default and judgment. The rates of interest specified in this Agreement
and the Notes are intended to be nominal rates and not effective rates and any
interest calculated hereunder shall be calculated using the nominal rate method
and not the effective rate method of calculation.
SECTION 23. MISCELLANEOUS.
Section 23.1. Successors and Assigns. All covenants and other agreements
contained in this Agreement by or on behalf of any of the parties hereto bind
and inure to the benefit of their respective successors and assigns (including,
without limitation, any subsequent holder of a Note) whether so expressed or
not.
-38-
Section 23.2. Payments Due on Non-Business Days. Anything in this Agreement
or the Notes to the contrary notwithstanding, any payment of principal of or
Make-Whole Amount or interest on any Note that is due on a date other than a
Business Day shall be made on the next succeeding Business Day without including
the additional days elapsed in the computation of the interest payable on such
next succeeding Business Day.
Section 23.3. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall (to the full extent permitted by law)
not invalidate or render unenforceable such provision in any other jurisdiction.
Section 23.4. Construction. (a) Each covenant contained herein shall be
construed (absent express provision to the contrary) as being independent of
each other covenant contained herein, so that compliance with any one covenant
shall not (absent such an express contrary provision) be deemed to excuse
compliance with any other covenant. Where any provision herein refers to action
to be taken by any Person, or which such Person is prohibited from taking, such
provision shall be applicable whether such action is taken directly or
indirectly by such Person.
(b) Where the character or amount of any asset or liability or item of
income or expense is required to be determined or any consolidation or other
accounting computation is required to be made for the purposes of this
Agreement, the same shall be done in accordance with GAAP, to the extent
applicable, except where such principles are inconsistent with the requirements
of this Agreement.
Section 23.5. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original but all of which together shall
constitute one instrument. Each counterpart may consist of a number of copies
hereof, each signed by less than all, but together signed by all, of the parties
hereto.
Section 23.6. Currency. All moneys referred to in this Agreement and the
Notes shall mean money which at the time is lawful money of the United States of
America.
Section 23.7. Governing Law. This Agreement shall be construed and enforced
in accordance with, and the rights of the parties shall be governed by, the law
of the State of New York excluding choice-of-law principles of the law of such
State that would require the application of the laws of a jurisdiction other
than such State.
* * * * *
-39-
The execution hereof by the Noteholders shall constitute a contract among
the Issuer and the Noteholders for the uses and purposes hereinabove set forth.
Very truly yours,
HUB INTERNATIONAL LIMITED PARTNERSHIP
By: HUB International Partners Limited,
its general partner
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Title: Vice President
--------------------------------
-40-
The foregoing is hereby agreed
to as of the date thereof.
MTL INSURANCE COMPANY
By: Prudential Private Placement
Investors, L.P. (as Investment
Advisor)
By: Prudential Private Placement
Investors, Inc.
(as its General Partner)
By: /s/
------------------------------------
Vice President
PRUDENTIAL RETIREMENT INSURANCE AND
ANNUITY COMPANY
By: Prudential Investment Management,
Inc.,
as investment manager
By: /s/
------------------------------------
Vice President
-41-
The foregoing is hereby agreed
to as of the date thereof.
PRIMERICA LIFE INSURANCE COMPANY
By: Conning Asset Management Company.
its Investment Manager
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
-42-
The foregoing is hereby agreed
to as of the date thereof.
THE TRAVELERS INSURANCE COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
THE TRAVELERS LIFE AND ANNUITY COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
-43-
The foregoing is hereby agreed
to as of the date thereof.
WEST AMERICAN INSURANCE COMPANY
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice-President
-44-
The foregoing is hereby agreed
to as of the date thereof.
MINNESOTA LIFE INSURANCE COMPANY
By Advantus Capital Management, Inc.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
SECURITY NATIONAL LIFE INSURANCE COMPANY
By: Advantus Capital Management, Inc.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
FARM BUREAU LIFE INSURANCE COMPANY OF
MICHIGAN
By: Advantus Capital Management, Inc.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
-▇▇-
▇▇▇▇ ▇▇▇▇▇▇ MUTUAL INSURANCE COMPANY OF
MICHIGAN
By: Advantus Capital Management, Inc.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
FARM BUREAU GENERAL INSURANCE COMPANY OF
MICHIGAN
By: Advantus Capital Management, Inc.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
AMERICAN REPUBLIC INSURANCE COMPANY
By: Advantus Capital Management, Inc.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
GREAT WESTERN INSURANCE COMPANY
By: Advantus Capital Management, Inc.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
-46-
AMERICAN FIDELITY ASSURANCE COMPANY
By: Advantus Capital Management, Inc.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
-47-
The foregoing is hereby agreed
to as of the date thereof.
CONNECTICUT GENERAL LIFE INSURANCE
By /s/ ▇▇▇▇▇ ▇. Height
-------------------------------------
Name: ▇▇▇▇▇ ▇. Height
Title: Managing Director
CIGNA LIFE INSURANCE COMPANY OF NEW YORK
By /s/ ▇▇▇▇▇ ▇. Height
-------------------------------------
Name: ▇▇▇▇▇ ▇. Height
Title: Managing Director
LIFE INSURANCE COMPANY OF NORTH AMERICA
By /s/ ▇▇▇▇▇ ▇. Height
-------------------------------------
Name: ▇▇▇▇▇ ▇. Height
Title: Managing Director
-48-
The foregoing is hereby agreed
to as of the date thereof.
BENEFICIAL LIFE INSURANCE COMPANY
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Sr, Vice President & Chief
Financial Officer
-49-
INFORMATION RELATING TO NOTEHOLDERS
PRINCIPAL AMOUNT OF
NAME AND ADDRESS OF NOTEHOLDER SERIES NOTES TO BE PURCHASED
------------------------------ ------ ---------------------
THE TRAVELERS INSURANCE COMPANY A $6,500,000
c/o Metropolitan Life Insurance Company
1 MetLife Plaza
▇▇-▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "Hub
International Limited, 5,71% Amended and Restated Series A Senior Notes due
2011, PPN 44333# AA 0, principal, interest or premium") to:
Bank Name: The Chase Manhattan Bank, N.A.
ABA Routing #: ▇▇▇-▇▇▇-▇▇▇
Account No.: ▇▇▇-▇-▇▇▇▇▇▇
Account Name: The Travelers Insurance Company
Ref: HUB International
Notices
All notices and other communications to be addressed:
The Travelers Insurance Company
c/o Metropolitan Life Insurance Company
Investments, Private Placements
▇.▇. ▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Director
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy OTHER THAN WITH RESPECT TO DELIVERIES OF FINANCIAL STATEMENTS
to:
The Travelers Insurance Company
c/o Metropolitan Life Insurance Company
▇.▇. ▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Chief Counsel-Securities Investments (PRIV)
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
SCHEDULE A
(to Note Purchase Agreement)
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: ▇▇-▇▇▇▇▇▇▇ (a Connecticut corporation)
A-2
PRINCIPAL AMOUNT OF
NAME AND ADDRESS OF NOTEHOLDER SERIES NOTES TO BE PURCHASED
------------------------------ ------ ---------------------
THE TRAVELERS INSURANCE COMPANY -- A $600,000
SEPARATE ACCOUNT MGA
c/o Metropolitan Life Insurance Company
1 MetLife Plaza
▇▇-▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "Hub
International Limited, 5.71% Amended and Restated Series A Senior Notes due
2011, PPN 44333# AA 0, principal, interest or premium") to:
Bank Name: The Travelers Insurance Company-Consolidated Private
ABA Routing #: ▇▇▇-▇▇▇-▇▇▇
Account No.: ▇▇▇-▇-▇▇▇▇▇▇
Account Name: The Travelers Insurance Company Separate Account MGA
Ref: HUB International
Notices
All notices and other communications to be addressed:
The Travelers Insurance Company
c/o Metropolitan Life Insurance Company
Investments, Private Placements
▇.▇. ▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Director
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy OTHER THAN WITH RESPECT TO DELIVERIES OF FINANCIAL STATEMENTS
to:
The Travelers Insurance Company
c/o Metropolitan Life Insurance Company
▇.▇. ▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Chief Counsel-Securities Investments (PRIV)
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
A-3
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: ▇▇-▇▇▇▇▇▇▇ (a Connecticut corporation)
A-4
PRINCIPAL AMOUNT OF
NAME AND ADDRESS OF NOTEHOLDER SERIES NOTES TO BE PURCHASED
------------------------------ ------ ---------------------
THE TRAVELERS LIFE AND ANNUITY COMPANY A $1,700,000
SEPARATE ACCOUNT TLAC -- MGA
c/o Metropolitan Life Insurance Company
1 MetLife Plaza
▇▇-▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "Hub
International Limited, 5,71% Amended and Restated Series A Senior Notes due
2011, PPN 44333# AA 0, principal, interest or premium") to:
Bank Name: ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Bank
ABA Routing #: ▇▇▇-▇▇▇-▇▇▇
Account No.: 910-739365
Account Name: The Travelers Separate Account TLAC -- MGA
Ref: HUB International
Notices
All notices and other communications to be addressed:
The Travelers Life and Annuity Company
c/o Metropolitan Life Insurance Company
Investments, Private Placements
▇.▇. ▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Director
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy OTHER THAN WITH RESPECT TO DELIVERIES OF FINANCIAL STATEMENTS
to:
The Travelers Life and Annuity Company
c/o Metropolitan Life Insurance Company
▇.▇. ▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Chief Counsel-Securities Investments (PRIV)
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
A-5
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: ▇▇-▇▇▇▇▇▇▇ (a Connecticut corporation)
A-6
PRINCIPAL AMOUNT OF
NAME AND ADDRESS OF NOTEHOLDER SERIES NOTES TO BE PURCHASED
------------------------------ ------ ---------------------
THE TRAVELERS LIFE AND ANNUITY COMPANY A $600,000
c/o Metropolitan Life Insurance Company
1 MetlLife Plaza
▇▇-▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "Hub
International Limited, 5.71% Amended and Restated Series A Senior Notes due
2011, PPN 44333# AA 0, principal, interest or premium") to:
Bank: JPMorgan Chase Bank
ABA Routing #: ▇▇▇-▇▇▇-▇▇▇
Account No.: ▇▇▇-▇-▇▇▇▇▇
Account Name: The Travelers Life and Annuity Company
Ref: HUB International
Notices
All notices and other communications to be addressed:
The Travelers Life and Annuity Company
c/o Metropolitan Life Insurance Company
Investments Private Placements
▇.▇. ▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Director
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy OTHER THAN WITH RESPECT TO DELIVERIES OF FINANCIAL
STATEMENTS to:
The Travelers Life and Annuity Company
c/o Metropolitan Life Insurance Company
▇.▇. ▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Chief Counsel-Securities Investments (PRIV)
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
A-7
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: ▇▇-▇▇▇▇▇▇▇ (a Connecticut corporation)
A-8
PRINCIPAL AMOUNT OF
NAME AND ADDRESS OF NOTEHOLDER SERIES NOTES TO BEPURCHASED
------------------------------ ------ --------------------
PRIMERICA LIFE INSURANCE COMPANY A $600,000
c/o Conning Asset Management Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "Hub
International Limited, 5.71% Amended and Restated Series A Senior Notes due
2011, PPN 44333# AA 0, principal, interest or premium") to:
Primerica Life Insurance Company Account No. ▇▇▇-▇-▇▇▇▇▇▇
JPMorgan Chase Bank
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
ABA No. ▇▇▇▇▇▇▇▇▇
Notices
All notices with respect to PAYMENT should be directed to:
Primerica Life Insurance Company
c/o Conning Asset Management Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
ATTN: ▇▇▇▇ ▇▇▇▇▇▇▇ / ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇/(▇▇▇) ▇▇▇-▇▇▇▇
All OTHER communications (including original securities) should be
directed to:
Primerica Life Insurance Company
C/o Conning Asset Management Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
ATTN: Vi ▇. ▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: ▇▇-▇▇▇▇▇▇▇ (a Massachusetts company)
A-9
PRINCIPAL AMOUNT OF
NAME AND ADDRESS OF NOTEHOLDER SERIES NOTES TO BE PURCHASED
------------------------------ ------ ---------------------
CONNECTICUT GENERAL LIFE INSURANCE COMPANY B $3,400,000
CIG & Co. B $3,000,000
c/o CIGNA Retirement & Investment Services B $3,000,000
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇ $1,000,000
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ B $1,100,000
Attention: Private and Alternative Investments, H16B B $1,000,000
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
Payments
All payments on or in respect of the Notes to be by Federal Funds Wire Transfer
to:
BNF=CIGNA Private Placements/AC=9009001802
ABA #▇▇▇▇▇▇▇▇▇
OBI=Hub International, Limited, 6.16% Amended and Restated Series B Senior
Notes due 2013, PPN 44333# AB 8; [due date and application (as among
principal, premium and interest of the payment being made); contact name
and phone.]
Address for Notices Related to Payments:
CIG & Co.
c/o CIGNA Investments, Inc.
Attention: Securities Processing H05P
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
CIG & Co.
c/o CIGNA Retirement & Investment Services
Attention: Private and Alternative Investments, H16B
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
A-10
with a copy to:
▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇ Bank
Private Placement Servicing
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: CIGNA Private Placements
Fax: ▇▇▇-▇▇▇-▇▇▇▇/1005
Address for All Other Notices:
CIG & Co.
c/o CIGNA Retirement & Investment Services
Attention: Private and Alternative Investments, H16B
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Name of Nominee in which Notes are to be issued: CIG & Co.
Taxpayer I.D. Number: ▇▇-▇▇▇▇▇▇▇
A-11
PRINCIPAL AMOUNT OF
NAME AND ADDRESS OF NOTEHOLDER SERIES NOTES TO BE PURCHASED
------------------------------ ------ ---------------------
CIGNA LIFE INSURANCE COMPANY OF NEW YORK B $3,000,000
CIG & Co.
c/o CIGNA Retirement & Investment Services
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Private and ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
Payments
All payments on or in respect of the Notes to be by Federal Funds Wire Transfer
to:
BNF=CIGNA Private Placements/AC=9009001802
ABA #▇▇▇▇▇▇▇▇▇
OBI=Hub International Limited, 6.16% Amended and Restated Series B Senior
Notes due 2013, PPN 44333# AB 8; [due date and application (as among
principal, premium and interest of the payment being made); contact name
and phone.]
Address for Notices Related to Payments:
CIG & Co.
c/o CIGNA Investments, Inc.
Attention: Securities Processing H05P
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
CIG & Co.
c/o CIGNA Retirement & Investment Services
Attention: Private and Alternative Investments, H16B
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
A-12
with a copy to:
▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇ Bank
Private Placement Servicing
P. O. Box ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: CIGNA Private Placements
Fax: ▇▇▇-▇▇▇-▇▇▇▇/1005
Address for All Other Notices:
CIG & Co.
c/o CIGNA Retirement & Investment Services
Attention: Private and Alternative Investments, H16B
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Name of Nominee in which Notes are to be issued: CIG & Co.
Taxpayer I.D. Number: ▇▇-▇▇▇▇▇▇▇
A-13
PRINCIPAL AMOUNT OF
NAME AND ADDRESS OF NOTEHOLDER SERIES NOTES TO BE PURCHASED
------------------------------ ------ ---------------------
LIFE INSURANCE COMPANY OF NORTH AMERICA B $3,400,000
CIG & Co.
c/o CIGNA Retirement & Investment Services
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Private and ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
Payments
All payments on or in respect of the Notes to be by Federal Funds Wire Transfer
to:
BNF=CIGNA Private Placements/AC=9009001802
ABA #▇▇▇▇▇▇▇▇▇
OBI=Hub International Limited, 6.16% Amended and Restated Series B Senior
Notes due 2013, PPN 44333# AB 8; [due date and application (as among
principal, premium and interest of the payment being made); contact name
and phone.]
Address for Notices Related to Payments:
CIG & Co.
c/o CIGNA Investments, Inc.
Attention: Securities Processing H05P
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
CIG & Co.
c/o CIGNA Retirement & Investment Services
Attention: Private and Alternative Investments, H16B
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇ Bank
Private Placement Servicing
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: CIGNA Private Placements
Fax: ▇▇▇-▇▇▇-▇▇▇▇/1005
A-14
Address for All Other Notices:
CIG & Co.
c/o CIGNA Retirement & Investment Services
Attention: Private and Alternative Investments, H16B
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Name of Nominee in which Notes are to be issued: CIG & Co.
Taxpayer I.D. Number: ▇▇-▇▇▇▇▇▇▇
A-15
PRINCIPAL AMOUNT OF
NAME AND ADDRESS OF NOTEHOLDER SERIES NOTES TO BE PURCHASED
------------------------------ ------ ---------------------
MINNESOTA LIFE INSURANCE COMPANY B $7,000,000
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
c/o Advantus Capital Management, Inc.
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "Hub
International Limited, 6.16% Amended and Restated Series B Senior Notes, due
2013, PPN 44333# AB 8, principal, interest or premium") to:
Mellon Bank, Pittsburgh PA
ABA#: ▇▇▇▇▇▇▇▇▇
DDA#: 048771
Acct. Name: Minnesota Life Insurance Company
Account #: ADFF0106002
Cost Code: 1167
Notices
All notices and communications, including notices with respect to payments and
written confirmation of each such payment, to be addressed as first provided
above.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: ▇▇-▇▇▇▇▇▇▇
A-16
PRINCIPAL AMOUNT OF
NAME AND ADDRESS OF NOTEHOLDER SERIES NOTES TO BE PURCHASED
------------------------------ ------ ---------------------
PRUDENTIAL RETIREMENT INSURANCE AND B $1,200,000
ANNUITY COMPANY
c/o Prudential Investment Management, Inc.
Private Placement Trade Management
PRIAC Administration
Gateway Center Four, 7th Floor
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "Hub
International Limited, 6.16% Amended and Restated Series B Senior Notes, due
2013, PPN 44333# AB 8, principal, interest or premium") to:
JPMorgan Chase
ABA No. ▇▇▇▇▇▇▇▇▇
Account Name: PRIAC - SA - Private Placement Fund - Priv - Privates
Account No. P86353 (please do not include spaces)
Notices
Address for all notices relating to payments:
Prudential Retirement Insurance and Annuity Company
c/o Prudential Investment Management, Inc.
Private Placement Trade Management
PRIAC Administration
Gateway Center Four, 7th Floor
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Address for all other communications and notices:
Prudential Private Placement Investors, L.P.
c/o Prudential Capital Group
[Regional Office Address]
Attention: Managing Director
A-17
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: ▇▇-▇▇▇▇▇▇▇
A-18
PRINCIPAL AMOUNT OF
NAME AND ADDRESS OF NOTEHOLDER SERIES NOTES TO BE PURCHASED
------------------------------ ------ ---------------------
PRUDENTIAL RETIREMENT INSURANCE AND B $3,900,000
ANNUITY COMPANY $3,000,000
c/o Prudential Investment Management, Inc. $1,000,000
Private Placement Trade Management $1,000,000
PRIAC Administration $1,000,000
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "Hub
International Limited, 6.16% Amended and Restated Series B Senior Notes, due
2013, PPN 44333# AB 8, principal, interest or premium") to:
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Bank
New York, NY
ABA No. ▇▇▇▇▇▇▇▇▇
Account Name: PRIAC
Account No. P86329 (please do not include spaces) in the case of payments
on Account of the Note originally issued in the principal amount of
$3,900,000.00
Account Name: PRIAC - SA - New York Carpenters - Privates
Account No. P86337 (please do not include spaces) in the case of payments
on Account of the Note originally issued in the principal amount of
$3,000,000.00
Account Name: PRIAC - SA - ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ - Privates
Account No. P86339 (please do not include spaces) in the case of payments
on Account of the Note originally issued in the principal amount of
$1,000,000.00
Account Name: PRIAC - SA - Fuji Stable Value Fund - Privates
Account No. P86355 (please do not include spaces) in the case of payments
on Account of the Note originally issued in the principal amount of
$1,000,000.00
Account Name: PRIAC - SA - Health Care Services Corp - Privates
Account No. P86341 (please do not include spaces) in the case of payments
on Account of the Note originally issued in the principal amount of
$1,000,000.00
A-19
Notices
Address for all notices relating to payments:
Prudential Retirement Insurance and Annuity Company
c/o Prudential Investment Management, Inc.
Private Placement Trade Management
PRIAC Administration
Gateway Center Four, 7th Floor
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Address for all other communications and notices:
Prudential Retirement Insurance and Annuity Company
c/o Prudential Capital Group
Two Prudential Plaza
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Managing Director
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: ▇▇-▇▇▇▇▇▇▇
A-20
PRINCIPAL AMOUNT OF
NAME AND ADDRESS OF NOTEHOLDER SERIES NOTES TO BE PURCHASED
------------------------------ ------ ---------------------
MTL INSURANCE COMPANY B $2,000,000
c/o Prudential Capital Group
Two Prudential Plaza
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Managing Director
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "Hub
International Limited, 6.16% Amended and Restated Series B Senior Notes, due
2013, PPN 44333# AB 8, principal, interest or premium") to:
The Northern Chgo/Trust
ABA #▇▇▇▇▇▇▇▇▇
Credit Wire Account #5186041000
FFC: 26-00621/MTL Insurance Company
Attn: Income Collections
Notices
All notices of payments and written confirmations of such wire transfer:
MTL Insurance Company
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Address for all other communications and notices:
Prudential Private Placement Investors, L.P.
c/o Prudential Capital Group
Two Prudential Plaza
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Managing Director
A-21
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: ▇▇-▇▇▇▇▇▇▇
A-22
PRINCIPAL AMOUNT OF
NAME AND ADDRESS OF NOTEHOLDER SERIES NOTES TO BE PURCHASED
------------------------------ ------ ---------------------
SECURITY NATIONAL LIFE INSURANCE COMPANY B $500,000
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
c/o Advantus Capital Management, Inc.
▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Client Administrator
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "Hub
International. Limited, 6.16% Amended and Restated Series B Senior Notes, due
2013, PPN 44333# AB 8, principal, interest or premium") to:
NORTHERN CHGO/TRUST
ABA #▇▇▇-▇▇▇-▇▇▇
Account #: 17-74574
Zions First National Bank
For further credit to:
Account Name: Security National Life
Account #: 7794900A
Notices
All notices and communications, including notices with respect to payments and
written confirmation of each such payment, to be addressed as first provided
above.
Name of Nominee in which Notes are to be issued: How & Co.
Taxpayer I.D. Number: ▇▇-▇▇▇▇▇▇▇
A-23
PRINCIPAL AMOUNT OF
NAME AND ADDRESS OF NOTEHOLDER SERIES NOTES TO BE PURCHASED
------------------------------ ------ ---------------------
FARM BUREAU LIFE INSURANCE COMPANY OF B $3,000,000
MICHIGAN
c/o Advantus Capital Management, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Client Administrator
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "Hub
International Limited, 6.16% Amended and Restated Series B Senior Notes, due
2013, PPN 44333# AB 8, principal, interest or premium") to:
Comerica Bank
Detroit, Michigan
ABA #▇▇▇-▇▇▇-▇▇▇
For credit to: Trust Operation-Fixed Income
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Account Number: 21585-98530
For further credit to: Farm Bureau Life Insurance Company of Michigan-
Account Number: 011000312124
Notices
All notices and communications, including notices with respect to payments and
written confirmation of each such payment, to be addressed as first provided
above.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: ▇▇-▇▇▇▇▇▇▇
A-24
PRINCIPAL AMOUNT OF
NAME AND ADDRESS OF NOTEHOLDER SERIES NOTES TO BE PURCHASED
------------------------------ ------ ---------------------
FARM BUREAU MUTUAL INSURANCE COMPANY OF B $1,000,000
MICHIGAN
c/o Advantus Capital Management, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Client Administrator
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "Hub
International Limited, 6.16% Amended and Restated Series B Senior Notes, due
2013, PPN 44333# AB 88, principal, interest or premium") to:
Comerica Bank
Detroit, Michigan
ABA #▇▇▇-▇▇▇-▇▇▇
For credit to: Trust Operation-Fixed Income
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Account Number: 21585-98530
For further credit to: Farm Bureau Mutual Insurance Company of Michigan-
Account Number: 011000312132
Notices
All notices and communications, including notices with respect to payments and
written confirmation of each such payment, to be addressed as first provided
above.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: ▇▇-▇▇▇▇▇▇▇
A-25
PRINCIPAL AMOUNT OF
NAME AND ADDRESS OF NOTEHOLDER SERIES NOTES TO BE PURCHASED
------------------------------ ------ ---------------------
FARM BUREAU GENERAL INSURANCE COMPANY OF B $1,000,000
MICHIGAN
c/o Advantus Capital Management, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Client Administrator
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "Hub
International Limited, 6.16% Amended and Restated Series B Senior Notes, due
2013, PPN 44333# AB 8, principal, interest or premium") to:
Comerica Bank
Detroit, Michigan
ABA #▇▇▇-▇▇▇-▇▇▇
For credit to: Trust Operation-Fixed Income
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Account Number: 21585-98530
For further credit to: Farm Bureau General Insurance Company of Michigan-
Account Number: 011000312140
Notices
All notices and communications, including notices with respect to payments and
written confirmation of each such payment, to be addressed as first provided
above.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: ▇▇-▇▇▇▇▇▇▇
A-26
NAME AND ADDRESS OF NOTEHOLDER SERIES PRINCIPAL AMOUNT OF NOTES TO BE PURCHASED
------------------------------ ------ -----------------------------------------
AMERICAN REPUBLIC INSURANCE COMPANY B $1,500,000
c/o Advantus Capital Management, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Client Administrator
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "Hub
International Limited, 6.16% Amended and Restated Series B Senior Notes, due
2013, PPN 44333# AB 8, principal, interest or premium") to:
▇▇▇▇▇ Fargo Bank, N.A.
ABA #▇▇▇▇▇▇▇▇▇
BNFA=▇▇▇▇▇▇▇▇▇▇ (include all 10 digits)
BNF=Trust Wire Clearing
FFC Attn: Income Collections, a/c #20983400
For further credit to: American Republic Insurance Co.
Account Number: ▇▇▇▇▇▇▇▇
Notices
All notices and communications, including notices with respect to payments and
written confirmation of each such payment, to be addressed as first provided
above.
Name of Nominee in which Notes are to be issued: ▇▇▇▇▇ Fargo Bank N.A. as
custodian for American Republic Insurance Company
Taxpayer I.D. Number: ▇▇-▇▇▇▇▇▇▇
A-27
NAME AND ADDRESS OF NOTEHOLDER SERIES PRINCIPAL AMOUNT OF NOTES TO BE PURCHASED
------------------------------ ------ -----------------------------------------
GREAT WESTERN INSURANCE COMPANY B $1,000,000
c/o Advantus Capital Management, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇▇▇, A9-4538
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "Hub
International Limited, 6.16% Amended and Restated Series B Senior Notes, due
2013, PPN 44333# AB 8, principal, interest or premium") to:
▇▇ ▇▇▇▇▇▇ Chase
ABA Number: ▇▇▇▇▇▇▇▇▇
DDA: ▇▇▇-▇-▇▇▇▇▇▇
Sub Account: 035-00202
Attn: ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇
Phone #: ▇▇▇-▇▇▇-▇▇▇▇
For Credit to: ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc.
Account # ▇▇▇▇▇▇▇▇
Reference Account Number: 70G-13700
Reference Name: Great Western Insurance Company
Contact: ▇▇▇▇▇ ▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
Notices
All notices and communications, including notices with respect to payments and
written confirmation of each such payment, to be addressed as first provided
above.
Name of Nominee in which Notes are to be issued: ▇▇▇▇▇▇▇ ▇▇▇▇▇ for
Great Western Insurance Company
Taxpayer I.D. Number: ▇▇-▇▇▇▇▇▇▇
A-28
NAME AND ADDRESS OF NOTEHOLDER SERIES PRINCIPAL AMOUNT OF NOTES TO BE PURCHASED
------------------------------ ------ -----------------------------------------
AMERICAN FIDELITY ASSURANCE COMPANY B $2,000,000
c/o Advantus Capital Management, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Client Administrator
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "Hub
International Limited, 6.16% Amended and Restated Series B Senior Notes, due
2013, PPN 44333# AB 8, principal, interest or premium") to:
First Fidelity Bank
ABA #▇▇▇▇▇▇▇▇▇
Account Name: InvesTrust
Account Number: 1040120179
For Further Ref: American Fidelity Assurance Company
Account Number: ▇▇▇▇▇▇▇▇
For credit to: InvesTrust
Account Number: 1040120179
Attn: ▇▇▇▇ ▇▇▇▇▇ & ▇▇▇ ▇▇▇▇▇▇▇▇
Notices
All notices and communications, including notices with respect to payments and
written confirmation of each such payment, to be addressed as first provided
above.
Name of Nominee in which Notes are to be issued: FFB Registration
Taxpayer I.D. Number: ▇▇-▇▇▇▇▇▇▇
A-29
NAME AND ADDRESS OF NOTEHOLDER SERIES PRINCIPAL AMOUNT OF NOTES TO BE PURCHASED
------------------------------ ------ -----------------------------------------
BENEFICIAL LIFE INSURANCE COMPANY B $3,000,000
▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "Hub
International Limited, 6.16% Amended and Restated Series B Senior Notes, due
2013, PPN 44333# AB 8, principal, interest or premium") to:
JPMorgan Chase
ABA #▇▇▇▇▇▇▇▇▇
A/C # 544755102
FFC: Zions First National Bank G70990
Notices
Address for Notices Related to Payments:
Beneficial Life Insurance Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Address for All Other Notices:
Beneficial Life Insurance Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Name of Nominee in which Notes are to be issued: TFINN
Taxpayer I.D. Number: ▇▇-▇▇▇▇▇▇▇
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NAME AND ADDRESS OF NOTEHOLDER SERIES PRINCIPAL AMOUNT OF NOTES TO BE PURCHASED
------------------------------ ------ -----------------------------------------
WEST AMERICAN INSURANCE COMPANY B $3,000,000
c/o The Ohio Casualty Group
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "Hub
International Limited, 6.16% Amended and Restated Series B Senior Notes, due
2013, PPN 44333# AB 8, principal, interest or premium") to:
Cash Wires
Income Payments CHASE NYC/CUST
ABA #021 000 021
A/C #▇▇▇-▇-▇▇▇▇▇▇
Attn: Income Collection
FAO: A/C #G06426 A/C West American Insurance Company
Other Wires CHASE NYC/CUST
ABA #021 000 021
A/C #▇▇▇-▇-▇▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇
FAO: A/C #G06426 A/C West American Insurance Company
Notices
All notices and communications with respect to payment and written confirmation
of each such payment to be addressed to:
The Ohio Casualty Group
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Portfolio Manager
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Name of Nominee in which Notes are to be issued: ▇▇▇▇ & Co.
Taxpayer I.D. Number: ▇▇-▇▇▇▇▇▇▇
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DEFINED TERMS
Capitalized terms used herein and not otherwise defined shall have the
meanings given in the Parent Company Guaranty. As used herein, the following
terms have the respective meanings set forth below or set forth in the Section
hereof following such term:
"Acquisition Date" is defined in SECTION 10.1(C).
"Affiliate" shall mean, at any time, and with respect to any Person, (a)
any other Person that at such time directly or indirectly through one or more
intermediaries Controls, or is Controlled by, or is under common Control with,
such first Person, and (b) in the case of the Parent Company or any Subsidiary,
any Person beneficially owning or holding, directly or indirectly, 10% or more
of any class of voting or equity interests of the Parent Company or any
Subsidiary or any corporation of which the Parent Company and its Subsidiaries
beneficially own or hold, in the aggregate, directly or indirectly, 10% or more
of any class of voting or equity interests; provided that "Affiliate," in
relation to the Parent Company, shall not include any Subsidiary. As used in
this definition, "Control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities, by contract or
otherwise. Unless otherwise clearly stated, any reference to an "Affiliate" is a
reference to an Affiliate of the Parent Company.
"Additional Covenant" shall mean any affirmative or negative covenant or
similar restriction applicable to the Parent Company or any Subsidiary
(regardless of whether such provision is labeled or otherwise characterized as a
covenant) the subject matter of which either (a) is similar to that of any
covenant in SECTION 9 or 10 of this Agreement, or related definitions in
SCHEDULE B to this Agreement, or Section 3 or 4 of the Parent Company Guaranty,
or related definitions in Section 1 of the Parent Company Guaranty, but contains
one or more percentages, amounts or formulas that is more restrictive than those
set forth herein or more beneficial to any holder of any Designated Debt (and
such covenant or similar restriction shall be deemed an Additional Covenant only
to the extent that it is more restrictive or more beneficial) or (b) is
different from the subject matter of any covenants in SECTION 9 or 10 of this
Agreement or Section 3 or 4 of the Parent Company Guaranty, or related
definitions in SCHEDULE B to this Agreement or the related definitions in
Section 1 of the Parent Company Guaranty. Notwithstanding the foregoing, the
provisions set forth in SECTION 1008 of each of the Subordinated Debentures as
in effect on the date hereof shall not constitute Additional Covenants.
"Additional Default" shall mean any provision for the benefit of any holder
of any Designated Debt to accelerate (with the passage of time or giving of
notice or both) the maturity thereof or otherwise requires any Parent Company or
any Subsidiary to purchase the Debt under such Designated Debt prior to the
stated maturity thereof and which either (a) is similar to any Default or Event
of Default contained in SECTION 11 of this Agreement, or related definitions in
SCHEDULE B to this Agreement or Section 1 of the Parent Company Guaranty, but
contains one or more percentages, amounts or formulas that is more restrictive
or has a ▇▇▇▇▇▇▇ ▇▇▇▇▇ period than those set forth therein or is more beneficial
to any holder of any Designated Debt (and such provision shall be deemed an
Additional Default only to the extent that it is more restrictive, has
SCHEDULE B
(to Note Purchase Agreement)
a ▇▇▇▇▇▇▇ ▇▇▇▇▇ period or is more beneficial) or (b) is different from the
subject matter of any Default or Event of Default contained in SECTION 11 of
this Agreement, or related definitions in SCHEDULE B to this Agreement or
Section 1 of the Parent Company Guaranty.
"Asset Disposition" shall mean any Transfer except:
(a) any
(1) Transfer from a Subsidiary to the Parent Company or a
Wholly-Owned Subsidiary; and
(2) Transfer from the Parent Company to a Wholly-Owned
Subsidiary;
so long as immediately before and immediately after the consummation of any
such Transfer and after giving effect thereto, no Default or Event of
Default shall exist; and
(b) any Transfer made in the ordinary course of business and involving
only property that is either (1) inventory held for sale or (2) equipment,
fixtures, supplies or materials no longer required in the operation of the
business of the Parent Company or any of its Subsidiaries or that is
obsolete.
"Attributable Debt" shall mean, as to any particular lease relating to a
Sale-and-Leaseback Transaction not permitted under clause (a), (b) or (c) of
SECTION 10.6, the present value of all Lease Rentals required to be paid by the
Parent Company or any Subsidiary under such lease during the remaining term
thereof (determined in accordance with generally accepted financial practice
using a discount factor equal to the interest rate implicit in such lease if
known or, if not known, of 10% per annum).
"Bank" shall mean Bank of Montreal.
"Bridge Loan Credit Agreement" shall mean that certain Non-Revolving Credit
Agreement, dated as of March 30, 2006, by and between the Parent Company and the
Bank.
"Business Day" shall mean (a) for the purposes of SECTION 8.6 only, any day
other than a Saturday, a Sunday or a day on which commercial banks in New York,
New York are required or authorized to be closed, and (b) for the purposes of
any other provision of this Agreement, any day other than a Saturday, a Sunday
or a day on which commercial banks in Chicago, Illinois or New York, New York,
are required or authorized to be closed.
"Capital Lease" shall mean, at any time, a lease with respect to which the
lessee is required concurrently to recognize the acquisition of an asset and the
incurrence of a liability in accordance with GAAP.
"Capital Lease Obligation" shall mean, with respect to any Person and a
Capital Lease, the amount of the obligation of such Person as the lessee under
such Capital Lease which would, in accordance with GAAP, appear as a liability
on a balance sheet of such Person.
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"Code" shall mean the Internal Revenue Code of 1986, as amended from time
to time, and the rules and regulations promulgated thereunder from time to time.
"Confidential Information" is defined in SECTION 20.
"Consolidated Debt" shall mean, as of any date of determination, the total
of all Debt of the Parent Company and its Subsidiaries outstanding on such date,
after eliminating all offsetting debits and credits between the Parent Company
and its Subsidiaries and all other items required to be eliminated in the course
of the preparation of consolidated financial statements of the Parent Company
and its Subsidiaries in accordance with GAAP.
"Consolidated Net Income" shall mean, with reference to any period, the net
income (or loss) of the Parent Company and its Subsidiaries for such period
(taken as a cumulative whole), as determined in accordance with GAAP, after
eliminating all offsetting debits and credits between the Parent Company and its
Subsidiaries and all other items required to be eliminated in the course of the
preparation of consolidated financial statements of the Parent Company and its
Subsidiaries in accordance with GAAP, but excluding, in any event, any
extraordinary gains or losses determined in accordance with GAAP.
"Consolidated Net Worth" shall mean, as of any date of determination
thereof,
(a) the sum of (1) the par value (or value stated on the books of the
corporation) of the share capital (but excluding treasury shares and share
capital subscribed and unissued) of the Parent Company and its Subsidiaries
plus (2) the amount of the paid-in capital and retained earnings of the
Parent Company and its Subsidiaries, in each case as such amounts would be
shown on a consolidated balance sheet of the Parent Company and its
Subsidiaries as of such time prepared in accordance with GAAP, minus
(b) to the extent included in clause (a) above, all amounts properly
attributable to minority interests, if any, in the shares and surplus of
Subsidiaries.
"Consolidated Total Assets" shall mean, as of any date of determination,
the total assets of the Parent Company and its Subsidiaries that would be shown
as assets on a consolidated balance sheet of the Parent Company and its
Subsidiaries as of such time prepared in accordance with GAAP, after eliminating
all amounts properly attributable to minority interests, if any, in the shares
and surplus of Subsidiaries.
"Consolidated Total Capitalization" shall mean, as of any date of
determination, the sum of Consolidated Debt and Consolidated Net Worth.
"Credit Agreement" shall have the meaning given in SECTION 4.2.
"Crown" shall mean the Crown in Right of Canada or of any Province or
Territory thereof.
"Debt" shall mean, with respect to any Person, without duplication,
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(a) its liabilities for borrowed money;
(b) its liabilities for the deferred purchase price of property
acquired by such Person (excluding accounts payable arising in the ordinary
course of business but including, without limitation, all liabilities
created or arising under any conditional sale or other title retention
agreement with respect to any such property);
(c) its Capital Lease Obligations;
(d) all liabilities for borrowed money secured by any Lien with
respect to any property owned by such Person (whether or not it has assumed
or otherwise become liable for such liabilities);
(e) the principal or lease balance outstanding under Synthetic Leases;
(f) its income-put option liabilities; and
(g) any Guarantee of such Person with respect to liabilities of a type
described in any of clauses (a) through (f) hereof; provided, that Debt
shall not include Guarantees of bank loans to officers of the Parent
Company the proceeds of which are used to purchase shares of the Parent
Company, in an aggregate principal amount not to exceed $12,000,000 at any
one time outstanding.
Debt of any Person shall include all obligations of such Person of the
character described in clauses (a) through (g) to the extent such Person remains
legally liable in respect thereof notwithstanding that any such obligation is
deemed to be extinguished under GAAP.
"Debt Prepayment Application" shall mean, with respect to any Transfer of
property, the application by the Issuer or its Subsidiaries of cash in an amount
equal to the Net Proceeds Amount with respect to such Transfer to pay Senior
Funded Debt of the Issuer or any Subsidiary of the Issuer (other than Senior
Funded Debt owing to the Parent Company, any of its Subsidiaries or any
Affiliates and Senior Funded Debt in respect of any revolving credit or similar
facility providing the Issuer or any of its Subsidiaries with the right to
obtain loans or other extensions of credit from time to time, except to the
extent that in connection with such payment of Senior Funded Debt the
availability under such revolving credit or similar facility is permanently
reduced by an amount not less than the amount of such proceeds applied to the
payment of such Senior Funded Debt).
"Default" shall mean an event or condition the occurrence or existence of
which would, with the lapse of time or the giving of notice or both, become an
Event of Default.
"Default Rate" shall mean, with respect to the Notes, that rate of interest
that is the greater of (a) 2% per annum above the rate of interest stated in
clause (a) of the first paragraph of the Notes or (b) 2% over the rate of
interest publicly announced by JPMorgan Chase Bank in New York City as its
"base" or "prime" rate.
B-4
"Designated Debt" shall mean (a) any Debt of the Parent Company or any
Subsidiary issued or outstanding under any agreement if the aggregate
outstanding principal amount of the Debt issued or outstanding under such
agreement, together with the aggregate amount of any undrawn commitments to
provide loans or financial accommodations to the Parent Company or any
Subsidiary under such agreement, exceeds U.S.$10,000,000, and (b) any Debt of
the Parent Company or any Subsidiary issued or outstanding under one or more
agreements if the aggregate outstanding principal amount of the Debt issued or
outstanding under all such agreements, together with the aggregate amount of any
undrawn commitments to provide loans or financial accommodations to the Parent
Company or any Subsidiary under all such agreements, exceeds U.S.$25,000,000.
For the avoidance of doubt, all Debt of the Parent Company and its Subsidiaries
under the Credit Agreement or any other primary working capital facility, the
2003 Notes and the Subordinated Debentures shall be deemed Designated Debt.
"Disposition Value" shall mean with respect to any property
(a) in the case of property that does not constitute Subsidiary
Shares, the book value thereof, valued at the time of such disposition in
good faith by the Parent Company, and
(b) in the case of property that constitutes Subsidiary Shares, an
amount equal to that percentage of book value of the assets of the
Subsidiary that issued such shares as is equal to the percentage that the
book value of such Subsidiary Shares represents of the book value of all of
the outstanding share capital of such Subsidiary (assuming, in making such
calculations, that all securities convertible into such share capital are
so converted and giving full effect to all transactions that would occur or
be required in connection with such conversion) determined at the time of
the disposition thereof, in good faith by the Parent Company.
"EBITDA" shall mean, with respect to any period, the sum of (a)
Consolidated Net Income for such period, plus (b) to the extent deducted in the
determination of Consolidated Net Income for such period, (1) all Interest
Charges during such period, (2) all depreciation and amortization expenses
during such period, (3) all Federal, state and provincial income taxes during
such period and (4) other non-cash expenses during such period, minus (c) to the
extent included in the determination of Consolidated Net Income for such period,
gains from the sale of capital assets and investments and other income-put
option liabilities, all as determined in accordance with GAAP consistently
applied.
"Effective Date" is defined in SECTION 1.8.
"Environmental Law" is defined in the Parent Company Guaranty.
"Equity Interests" means in the case of a corporation, shares of capital
stock of any class or series, including warrants, rights, participating
interests or options to purchase or otherwise acquire any class or series of
capital stock or securities exchangeable for or convertible into any class or
series of capital stock, and in the case of any other Person or entity shall
mean any class or series of partnership interests (including, without
limitation, any general or limited partnership
B-5
interests), units, membership interests or like interests constituting equity,
and in the case of each of the foregoing, any part or portion thereof or
participation in any of the foregoing.
"Event of Default" is defined in SECTION 11.
"Existing Credit Agreement" shall mean that certain Amended and Restated
Credit Agreement, dated as of April 23, 2004, by and among the Parent Company
and the Bank, as amended from time to time in accordance with the terms hereof.
"Existing Note Purchase Agreements" is defined in SECTION 1.1.
"Existing Notes" is defined in SECTION 1.1.
"Fair Market Value" shall mean, as of any date of determination thereof and
with respect to any property, the sale value of such property that would be
realized in an arm's-length sale at such time between an informed and willing
buyer and an informed and willing seller (neither being under a compulsion to
buy or sell).
"Forms" is defined in SECTION 8.8(A)(4).
"Funded Debt" means, with respect to any Person, all Debt of such Person
which by its terms or by the terms of any instrument or agreement relating
thereto matures, or which is otherwise payable or unpaid, one year or more from,
or is directly or indirectly renewable or extendible at the option of the
obligor in respect thereof to a date one year or more (including, without
limitation, an option of such obligor under a revolving credit or similar
agreement obligating the lender or lenders to extend credit over a period of one
year or more) from, the date of any determination thereof.
"GAAP" shall mean generally accepted accounting principles as in effect
from time to time as now or hereafter established by the Canadian Institute of
Chartered Accountants or any successor thereto.
"General Partner" shall mean HUB International Partners Limited, an Ontario
corporation.
"Guarantee" shall mean, with respect to any Person, any obligation (except
the endorsement in the ordinary course of business of negotiable instruments for
deposit or collection) of such Person guaranteeing or in effect guaranteeing any
Debt, dividend or other obligation of any other Person in any manner, whether
directly or indirectly, including, without limitation, obligations incurred
through an agreement, contingent or otherwise, by such Person:
(a) to purchase such Debt or obligation or any property constituting
security therefor;
(b) to advance or supply funds (1) for the purchase or payment of such
Debt or obligation, or (2) to maintain any working capital or other balance
sheet condition or
B-6
any income statement condition of any other Person or otherwise to advance
or make available funds for the purchase or payment of such Debt or
obligation;
(c) to lease properties or to purchase properties or services
primarily for the purpose of assuring the owner of such Debt or obligation
of the ability of any other Person to make payment of the Debt or
obligation; or
(d) otherwise to assure the owner of such Debt or obligation against
loss in respect thereof.
In any computation of the Debt or other liabilities of the obligor under any
Guarantee, the Debt or other obligations that are the subject of such Guarantee
shall be assumed to be direct obligations of such obligor.
"holder" shall mean, with respect to any Note, the Person in whose name
such Note is registered in the register maintained by the Issuer pursuant to
SECTION 13.1.
"Institutional Accredited Investor" shall mean an "accredited investor"
within the meaning of the 501(a)(1), (2), (3) or (7) under the Securities Act.
"Institutional Investor" shall mean (a) any Noteholder named on SCHEDULE A
hereto, (b) any holder of more than U.S.$2,000,000 of the aggregate principal
amount of the Notes then outstanding, and (c) any bank, trust company, savings
and loan association or other financial institution, any pension plan, any
investment company, any insurance company, any broker or dealer, or any other
similar financial institution or entity, regardless of legal form.
"Interest Charges" shall mean, with respect to any period, the sum (without
duplication) of the following (in each case, eliminating all offsetting debits
and credits between the Parent Company and its Subsidiaries and all other items
required to be eliminated in the course of the preparation of consolidated
financial statements of the Parent Company and its Subsidiaries in accordance
with GAAP): (a) all interest in respect of Debt of the Parent Company and its
Subsidiaries (including imputed interest on Capital Lease Obligations) deducted
in determining Consolidated Net Income for such period, and (b) all debt
discount and expense amortized or required to be amortized in the determination
of Consolidated Net Income for such period.
"Issuer" shall mean Hub International Limited Partnership, a limited
partnership organized under the laws of Delaware, and any Successor Subsidiary.
"Lease Rentals" shall mean, with respect to any period, the sum of all
fixed payments (including as such all payments which the lessee is obligated to
make to the lessor on termination of the lease or surrender of the property)
payable by the Parent Company or a Subsidiary, as lessee or sublessee under a
lease of property, but shall be exclusive of any amounts required to be paid by
the Parent Company or a Subsidiary (whether or not designated as rents or
additional rents) on account of maintenance, repairs, insurance, taxes and
similar charges. Fixed rents under any so-called "percentage leases" shall be
computed solely on the basis of the minimum rents, if any, required to be paid
by the lessee regardless of sales volume or gross revenues.
B-7
"Lien" shall mean, with respect to any Person, any mortgage, lien, pledge,
charge, security interest or other encumbrance, or any interest or title of any
vendor, lessor, lender or other secured party to or of such Person under any
conditional sale or other title retention agreement or Capital Lease, upon or
with respect to any property or asset of such Person (including in the case of
shares, shareholder agreements, voting trust agreements and all similar
arrangements).
"Make-Whole Amount" is defined in SECTION 8.6.
"Material Subsidiary" shall mean, at any time, any Subsidiary that accounts
for more than (a) 5% of Consolidated Total Assets determined as of the
immediately preceding fiscal quarter or (b) 5% of consolidated revenue of the
Parent Company and its Subsidiaries determined as of the immediately preceding
fiscal year.
"Minimum Interest Coverage Ratio" shall mean, as of the date of any
determination thereof, the ratio of (a) EBITDA for the period consisting of the
immediately preceding four consecutive fiscal quarters of the Parent Company
ending on, or most recently ended prior to, such date to (b) Interest Charges
for such period.
"Net Proceeds Amount" shall mean, with respect to any Transfer of any
Property by any Person, an amount equal to the difference of
(a) the aggregate amount of the consideration (valued at the Fair
Market Value of such consideration at the time of the consummation of such
Transfer) received by such Person in respect of such Transfer, minus
(b) all ordinary and reasonable out-of-pocket costs and expenses
actually incurred by such Person in connection with such Transfer.
"Notes" is defined in SECTION 1.3.
"Noteholders" is defined in the Preamble.
"Offer Prepayment Date" is defined in SECTION 8.7(B).
"Officer's Certificate" shall mean a certificate of a Senior Financial
Officer, general partner or of any other officer of the Issuer or the Parent
Company, as applicable, whose responsibilities extend to the subject matter of
such certificate.
"Parent Company" shall have the meaning given in the introductory
paragraph.
"Parent Company Guaranty" is defined in SECTION 4.1.
"PTE" is defined in SECTION 6.2(A).
B-8
"Person" shall mean an individual, partnership, corporation, limited
liability company, association, trust, unincorporated organization, or a
government or agency or political subdivision thereof.
"Priority Debt" shall mean, without duplication, the sum of (a) Debt of the
Parent Company and its Subsidiaries secured by Liens other than Liens permitted
by paragraphs (a) through (k), inclusive, of SECTION 10.3, (b) Debt of
Subsidiaries (including, without limitation, any Guarantee by any Subsidiary of
any Debt of the Parent Company or any other Subsidiary) other than (1) Debt of
the Issuer and (2) Debt of other Subsidiaries permitted by paragraphs (a)
through (c), inclusive, of SECTION 10.1, and (c) Attributable Debt of the Parent
Company and its Subsidiaries relating to Sale-and-Leaseback Transactions other
than Sale-and-Leaseback Transactions permitted by paragraphs (a) through (c),
inclusive, of SECTION 10.6.
"property" or "properties" shall mean, unless otherwise specifically
limited, real or personal property of any kind, tangible or intangible, ▇▇▇▇▇▇
or inchoate.
"Property Reinvestment Application" shall mean, with respect to any
Transfer of property, the application of an amount equal to the Net Proceeds
Amount with respect to such Transfer to the acquisition by the Issuer or any
Subsidiary of operating assets of the Issuer or any Subsidiary of the Issuer to
be used in the principal business of such Person.
"QPAM Exemption" shall mean Prohibited Transaction Class Exemption 84-14
issued by the United States Department of Labor.
"Relevant Tax" is defined in SECTION 8.8.
"Reorganization" is defined in SECTION 4.14.
"Required Holders" shall mean, at any time, the holders of more than 50% in
aggregate principal amount of the Notes at the time outstanding (exclusive of
Notes then owned by the Parent Company or any of its Subsidiaries or
Affiliates).
"Resident Country" is defined in SECTION 8.8.
"Responsible Officer" shall mean any Senior Financial Officer and any other
officer of the Parent Company or the Issuer, as applicable, with responsibility
for the administration of the relevant portion of this Agreement.
"Restricted Payments" is defined in SECTION 10.12.
"Sale-and-Leaseback Transaction" means a transaction or series of
transactions pursuant to which the Parent Company or any Subsidiary shall sell
or transfer to any Person (other than the Parent Company or a Wholly-Owned
Subsidiary) any property, whether now owned or hereafter acquired, and, as part
of the same transaction or series of transactions, the Parent Company or any
Subsidiary shall rent or lease as lessee (other than pursuant to a Capital
Lease),
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or similarly acquire the right to possession or use of, such property or one or
more properties which it intends to use for the same purpose or purposes as such
property.
"Securities Act" shall mean the Securities Act of 1933, as amended from
time to time.
"Senior Debt" in respect of any Person, shall mean, as of the date of any
determination thereof, all Debt of such Person other than Subordinated Debt.
"Senior Financial Officer" shall mean the chief financial officer,
principal accounting officer, treasurer or comptroller of the Parent Company or
the Issuer, as applicable.
"Senior Funded Debt" in respect of any Person, shall mean, as of the date
of any determination thereof, all Funded Debt of such Person other than
Subordinated Funded Debt.
"Series A Notes" is defined in SECTION 1.1.
"Series B Notes" is defined in SECTION 1.1.
"Source" is defined in SECTION 6.2.
"Subordinated Debentures" shall mean, collectively, that certain 8.5%
Convertible Subordinated Debenture due June 28, 2007 of the Parent Company in
favor of Odyssey Reinsurance Corporation in the original principal amount of
U.S.$17,500,000 and that certain 8.5% Convertible Subordinated Debenture due
June 28, 2007 of the Parent Company in favor of United States Fire Insurance
Company in the original principal amount of U.S.$17,500,000.
"Subordinated Debt" in respect of any Person, shall mean, as of the date of
any determination thereof, all unsecured Debt of such Person which shall contain
or have applicable thereto subordination provisions providing for the
subordination thereof to other Debt of such Person. For the avoidance of doubt,
all Debt of the Parent Company or any Subsidiary under the Subordinated
Debentures shall be deemed Subordinated Debt of the Parent Company or such
Subsidiary.
"Subordinated Funded Debt" in respect of any Person, shall mean, as of the
date of any determination thereof, all unsecured Funded Debt of such Person
which shall contain or have applicable thereto subordination provisions
providing for the subordination thereof to other Funded Debt of such Person.
"Subsidiary" shall mean, as to any Person, any corporation, association or
other business entity in which such Person or one or more of its Subsidiaries or
such Person and one or more of its Subsidiaries owns sufficient equity or voting
interests to enable it or them (as a group) ordinarily, in the absence of
contingencies, to elect a majority of the directors (or Persons performing
similar functions) of such entity, and any partnership or joint venture if more
than a 50% interest in the profits or capital thereof is owned by such Person or
one or more of its Subsidiaries or such Person and one or more of its
Subsidiaries (unless such partnership can and does ordinarily take major
business actions without the prior approval of such Person or one or
B-10
more of its Subsidiaries). Unless otherwise clearly stated, any reference to a
"Subsidiary" is a reference to a Subsidiary of the Parent Company and the Issuer
is included as a Subsidiary of the Parent Company.
"Subsidiary Shares" shall mean, with respect to any Person, the shares (or
any options or warrants to purchase shares or other securities exchangeable for
or convertible into shares) of any Subsidiary of such Person.
"Successor Entity" is defined in SECTION 10.4(A).
"Synthetic Lease" shall mean any synthetic lease, tax retention operating
lease, off-balance sheet loan or similar off-balance sheet financing product,
where such transaction is considered debt for borrowed money for tax purposes
but is classified as an operating lease in accordance with GAAP.
"Tax Indemnity Amounts" is defined in SECTION 8.8.
"Taxing Jurisdiction" is defined in SECTION 8.8.
"Transfer" shall mean, with respect to any Person, any transaction in which
such Person sells, conveys, transfers or leases (as lessor) any of its property,
including, without limitation, Subsidiary Shares. For purposes of determining
the application of the Net Proceeds Amount in respect of any Transfer, the
Parent Company may designate any Transfer as one or more separate Transfers each
yielding a separate Net Proceeds Amount. In any such case, (a) the Disposition
Value of any property subject to each such separate Transfer and (b) the amount
of Consolidated Total Assets attributable to any property subject to each such
separate Transfer shall be determined by ratably allocating the aggregate
Disposition Value of, and the aggregate Consolidated Total Assets attributable
to, all property subject to all such separate Transfers to each such separate
Transfer on a proportionate basis.
"2006 Guaranty Agreement" shall mean that certain Guaranty Agreement dated
as of April 4, 2006 by the Parent Company in favor and for the benefit of the
noteholders named therein.
"2006 Note Purchase Agreement" shall mean that certain Note Purchase
Agreement dated as of April 4, 2006 by and among the Issuer and the noteholders
named therein pursuant to which such noteholders purchase the 2006 Notes.
"2006 Notes" shall mean, collectively, those 6.43% Senior Notes due April
4, 2016 of the Issuer in the original aggregate principal amount of U.S.
$75,000,000.
"Wholly-Owned Subsidiary" shall mean any Subsidiary 100% of all of the
equity interests (except directors' qualifying shares) and voting interests of
which are owned by any one or more of the Parent Company and the Parent
Company's other Wholly-Owned Subsidiaries.
B-11
REORGANIZATION
EXISTING FINANCING STRUCTURE
Hub International Limited ("HIL"), has borrowed (a) US$65 million from the
Bank of Montreal ("BMO") under a US$75 million revolving credit facility (the
"HIL-BMO Facility") and (b) US$65 million from holders of fixed-rate senior
notes (the "Senior Notes"). Under a master swap agreement with BMO, HIL entered
into a fixed-to-floating interest rate swap (the "Swap") with respect to the
Senior Notes with BMO as the Swap counterparty.
Using funds from various internal and external sources, HIL capitalized
certain offshore financing subsidiaries, including Hub (Luxembourg) S.a.r.l.,
Hub (Gibraltar) Limited, and Hub Hungary Liquidity Management Limited Liability
Company (collectively, the "Offshore Subsidiaries"). With the funds received
from HIL and its own earnings, Hub Hungary made loans (the "HOC Loans") to Hub
U.S. Holdings Inc. ("Hub U.S."), a Delaware corporation wholly owned by HIL and
the parent corporation of HIL's U.S. operations, and several Hub U.S.
subsidiaries.
NEW STRUCTURE
HIL proposes to replace the existing financing structure using the Offshore
Subsidiaries with the financing structure as outlined below.
Under the new structure, the following entities, among others
(collectively, the "Tower Entities") will be established: (a) a U.S. limited
partnership (the "Partnership") that will be indirectly wholly owned by HIL, (b)
an Ontario corporation to serve as the one-percent general partner of the
Partnership, (c) a U.S. limited liability company (the "LLC") and (d) a U.S.
limited liability company to act as the LLC's manager. The Tower Entities will
replace the existing financing structure using the Offshore Subsidiaries.
The Partnership will assume the obligations of HIL under the Senior Notes
and the Swap. HIL will guarantee such obligations.
The Partnership will borrow US$75 million under a loan agreement with
Prudential (the "Prudential Loan"). HIL will guarantee the Prudential Loan. The
Partnership will enter into a new credit facility with a BMO U.S. branch with
availability of US$75 million. The Partnership will immediately borrows US$55
million under such Facility. HIL will guarantee the Partnership's obligations
under such Facility.
SCHEDULE 4.14
(to Note Purchase Agreement)
EXISTING LIENS
USD $ USD $
CURRENT CONSOL
Terms PORTION TOTAL HUB
----- --------- --------- ---
LOANS:
21074 Uns Tech (JW), $7875MO 5.35% 4/15/07 150,196 202,070 Mountain Secured
21075 Ind Tech (RL), $7875MO 5.35% 4/15/07 150,196 202,070 Mountain Secured
21076 Montana (JW) $3,377MO 5.35% 6/15/07 19,167 29,140 Mountain Secured
21077 Montana (KOC) $3.377MO 5.35% 6/15/07 38,333 58,281 Mountain Secured
21078 Montana (RL) $3,377MO 5.35% 6/15/07 19,167 29,140 Mountain Secured
21046 ▇▇▇ ▇▇▇▇▇▇ Agcy, $2,658MO, 5%, 12/15/07 29,543 60,597 Southwest Secured
21047 ▇▇▇ ▇▇▇▇▇▇ Inc, $6,57BMO, 5%, 12/15/07 73,106 149,953 Southwest Secured
21048 Gillet, $10,170MO, 6%, 11/1/07 111,855 168,073 Southwest Secured
21061 ▇▇▇▇▇▇▇ & Co, $8,817MO, 6%, 10/15/06 85,798 85,798 Southwest Secured
21068 STG Corp, $9.03MO, 6%, 8/15/06 73,558 73,558 Southwest Secured
21079 GE Capital $300K Qtr Inc Var% 12/30/07 1,200,000 2,300,000 Southwest Secured
21073 AIWC, $21,769MO, 4.35%, 5/15/08 239,950 598,220 Southwest Secured
--------- ---------
22999 Total Loans 2,190,869 3,956,900
CAPITAL LEASES:
23025 O&Y Enterprises $347.63, MO 3,254 4,707 MGAs Secured
23010 ▇▇▇▇▇▇ Finl, $2,247, MO, Bind, 67%, 10/06 19,514 19,514 Midwest Secured Office Furniture
23011 ▇▇▇▇▇▇ Finl, $8,882, MO, Incl 8.67%,10/06 77,123 77,123 Midwest Secured Office Furniture
23029 Steelcase, $9,458, MO, Incl 6.062%, l10/06 83,064 83,064 Midwest Secured Office Furniture
23041 Dell Finl, $12354 MO, Incl 9.83%, 05/06 1,084 1,084 Southwest Secured
--------- ---------
23999 Capital Leases
========= =========
SCHEDULE 10.4
(to Note Purchase Agreement)
FORM OF SERIES A NOTE
The securities represented by this Note have not been registered under the
Securities Act of 1933, as amended (the "Act"), or registered or qualified under
any state, provincial or territorial securities laws. Such securities may not be
sold, offered for sale, transferred, pledged or hypothecated in the absence of
such registration or qualification or an exemption therefrom under the Act and
any applicable state, provincial or territorial securities laws.
The securities represented by this Note have not been qualified for
distribution or resale in Canada and shall not be traded in Canada unless
permitted under and traded in compliance with applicable securities laws of the
provinces and territories of Canada.
HUB INTERNATIONAL LIMITED PARTNERSHIP
5.71% Amended and Restated Series A Senior Note due April 4, 2011
No. R-____ Date __________
$____________ PPN 44333# AA 0
For Value Received, the undersigned, Hub International Limited Partnership
(herein called the "Issuer"), a limited partnership organized and existing under
the laws of the State of Delaware, hereby promises to pay to ________________,
or registered assigns, the principal sum of ________________ Dollars (or so much
thereof as shall not have been prepaid) on April 4, 2011, with interest
(computed on the basis of a 360-day year of twelve 30-day months) (a) on the
unpaid balance thereof at the rate of 5.71% per annum from the date hereof,
payable semiannually, on the 15th day of each June and December in each year,
commencing on June 15, 2006, until the principal hereof shall have become due
and payable, and (b) to the extent permitted by law on any overdue payment
(including any overdue prepayment) of principal, any overdue payment of interest
and any overdue payment of any Make-Whole Amount (as defined in the Note
Purchase Agreement referred to below), payable semiannually as aforesaid (or, at
the option of the registered holder hereof, on demand), at a rate per annum from
time to time equal to the greater of (1) 7.71% or (2) 2% over the rate of
interest publicly announced by JPMorgan Chase Bank from time to time in New York
City as its "base" or "prime" rate.
Payments of principal of, interest on and any Make-Whole Amount with
respect to this Note are to be made in lawful money of the United States of
America at the principal office of JPMorgan Chase Bank in New York City or at
such other place as the Issuer shall have designated by written notice to the
holder of this Note as provided in the Note Purchase Agreement referred to
below.
This Note is one of a series of Senior Notes (herein called the "Notes")
issued pursuant to the Note Purchase Agreement, dated as of April 4, 2006 (as
from time to time amended, the "Note Purchase Agreement"), between the Issuer
and the Noteholders named therein and is entitled to the benefits thereof. Each
holder of this Note will be deemed, by its acceptance hereof, (i) to have agreed
to the confidentiality provisions set forth in SECTION 20 of the Note
EXHIBIT 1
(to Note Purchase Agreement)
Purchase Agreement and (ii) to have made the representations set forth in
SECTION 6 of the Note Purchase Agreement.
This Note is a registered Note and, as provided in the Note Purchase
Agreement, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Issuer may treat the person in whose name this
Note is registered as the owner hereof for the purpose of receiving payment and
for all other purposes, and the Issuer will not be affected by any notice to the
contrary.
The Issuer will make required prepayments of principal on the Note on the
dates and in the amounts specified in the Note Purchase Agreement. This Note is
also subject to prepayment, in whole or from time to time in part, at the times
and on the terms specified in the Note Purchase Agreement, but not otherwise.
This Note is unconditionally guarantied pursuant to the Parent Company
Guaranty and the holder hereof is entitled to the benefits thereof. Reference is
made to the Parent Company Guaranty for a statement concerning the terms and
conditions governing the guaranty of the obligations of the Issuer hereunder.
If an Event of Default, as defined in the Note Purchase Agreement, occurs
and is continuing, the principal of this Note may be declared or otherwise
become due and payable in the manner, at the price (including any applicable
Make-Whole Amount) and with the effect provided in the Note Purchase Agreement.
This Note shall be construed and enforced in accordance with, and the
rights of the issuer and holder hereof shall be governed by, the law of the
State of New York excluding choice-of-law principles of the law of such State
that would require the application of the laws of a jurisdiction other than such
State.
HUB INTERNATIONAL LIMITED PARTNERSHIP
By: HUB International Partners Limited,
its General Partner
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
E-1-2
FORM OF SERIES B NOTE
The securities represented by this Note have not been registered under the
Securities Act of 1933, as amended (the "Act"), or registered or qualified under
any state, provincial or territorial securities laws. Such securities may not be
sold, offered for sale, transferred, pledged or hypothecated in the absence of
such registration or qualification or an exemption therefrom under the Act and
any applicable state, provincial or territorial securities laws.
The securities represented by this Note have not been qualified for
distribution or resale in Canada and shall not be traded in Canada unless
permitted under and traded in compliance with applicable securities laws of the
provinces and territories of Canada.
HUB INTERNATIONAL LIMITED PARTNERSHIP
6.16% Amended and Restated Series B Senior Note due June 15, 2013
No. R-____ Date __________
$____________ PPN 44333# AB 8
For Value Received, the undersigned, Hub International Limited Partnership
(herein called the "Issuer"), a limited partnership organized and existing under
the laws of the State of Delaware, hereby promises to pay to ________________,
or registered assigns, the principal sum of ________________ Dollars (or so much
thereof as shall not have been prepaid) on June 15, 2013, with interest
(computed on the basis of a 360-day year of twelve 30-day months) (a) on the
unpaid balance thereof at the rate of 6.16% per annum from the date hereof,
payable semiannually, on the 15th day of each June and December in each year,
commencing on June 15, 2006, until the principal hereof shall have become due
and payable, and (b) to the extent permitted by law on any overdue payment
(including any overdue prepayment) of principal, any overdue payment of interest
and any overdue payment of any Make-Whole Amount (as defined in the Note
Purchase Agreement referred to below), payable semiannually as aforesaid (or, at
the option of the registered holder hereof, on demand), at a rate per annum from
time to time equal to the greater of (1) 8.16% or (2) 2% over the rate of
interest publicly announced by JPMorgan Chase Bank from time to time in New York
City as its "base" or "prime" rate.
Payments of principal of, interest on and any Make-Whole Amount with
respect to this Note are to be made in lawful money of the United States of
America at the principal office of JPMorgan Chase Bank in New York City or at
such other place as the Issuer shall have designated by written notice to the
holder of this Note as provided in the Note Purchase Agreement referred to
below.
This Note is one of a series of Senior Notes (herein called the "Notes")
issued pursuant to the Note Purchase Agreement, dated as of April 4, 2006 (as
from time to time amended, the "Note Purchase Agreement"), between the Issuer
and the Noteholders named therein and is entitled to the benefits thereof. Each
holder of this Note will be deemed, by its acceptance hereof, (i) to have agreed
to the confidentiality provisions set forth in SECTION 20 of the Note
EXHIBIT 2
(to Note Purchase Agreement)
Purchase Agreement and (ii) to have made the representations set forth in
SECTION 6 of the Note Purchase Agreement.
This Note is a registered Note and, as provided in the Note Purchase
Agreement, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Issuer may treat the person in whose name this
Note is registered as the owner hereof for the purpose of receiving payment and
for all other purposes, and the Issuer will not be affected by any notice to the
contrary.
The Issuer will make required prepayments of principal on the Note on the
dates and in the amounts specified in the Note Purchase Agreement. This Note is
subject to prepayment, in whole or from time to time in part, at the times and
on the terms specified in the Note Purchase Agreement, but not otherwise.
This Note is unconditionally guarantied pursuant to the Parent Company
Guaranty and the holder hereof is entitled to the benefits thereof. Reference is
made to the Parent Company Guaranty for a statement concerning the terms and
conditions governing the guaranty of the obligations of the Issuer hereunder.
If an Event of Default, as defined in the Note Purchase Agreement, occurs
and is continuing, the principal of this Note may be declared or otherwise
become due and payable in the manner, at the price (including any applicable
Make-Whole Amount) and with the effect provided in the Note Purchase Agreement.
This Note shall be construed and enforced in accordance with, and the
rights of the issuer and holder hereof shall be governed by, the law of the
State of New York excluding choice-of-law principles of the law of such State
that would require the application of the laws of a jurisdiction other than such
State.
HUB INTERNATIONAL LIMITED PARTNERSHIP
By: HUB International Partners Limited,
its General Partner
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
E-2-2
FORM OF PARENT COMPANY GUARANTY
(See attached)
EXHIBIT 4.1
(to Note Purchase Agreement)
FORM OF OPINION OF U. S. COUNSEL
TO THE PARENT COMPANY, THE GENERAL PARTNER AND THE ISSUER
[Effective Date]
To the Noteholders listed in
SCHEDULE A to the Purchase Agreement
Hub International Limited Partnership
5.71% Amended and Restated Series A
Senior Notes due April 4, 2011
and
6.16% Amended and Restated Series B
Senior Notes due June 15, 2013
Ladies and Gentlemen:
We have acted as United States counsel to Hub International Limited, a
Canadian corporation (the "Parent Company"), Hub International Limited
Partnership, a Delaware limited partnership (the "Issuer"), and HUB
International Partners Limited, an Ontario corporation (the "General Partner"),
in connection with the purchase, subject to the terms and conditions set forth
in the Note Purchase Agreement (the "Purchase Agreement") dated as of April 4,
2006 between the Issuer and the several noteholders named in SCHEDULE A to the
Purchase Agreement (the "Noteholders"), by the Noteholders of (i) US$10,000,000
aggregate principal amount of 5.71% Amended and Restated Series A Senior Notes
due April 4, 2011 and (ii) US$55,000,000 aggregate principal amount of 6.16%
Amended and Restated Series B Senior Notes due June 15, 2013 of the Issuer
(collectively, the "Notes"). The Notes are unconditionally guarantied by the
Parent Company pursuant to that certain Guaranty Agreement dated as of April 4,
2006 (the "Parent Company Guaranty") entered into by the Parent Company in favor
of and for the benefit of the holders of the Notes.
In such capacity, we have examined the Purchase Agreement, the Parent
Company Guaranty (together, the "Transaction Documents"), specimens of the Notes
and the originals, or copies identified to our satisfaction, of such corporate
records of the Parent Company, the partnership records of the Issuer,
certificates of public officials, certificates of officers of the Parent Company
and the Issuer and other persons, and such other documents, agreements and
instruments as we have deemed necessary as a basis for the opinions hereinafter
expressed. In our examinations, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals and
the conformity with the originals of all documents submitted to us as copies. In
rendering our opinions, we have relied as to factual matters, to the extent we
deem proper, upon the representations and warranties of the Parent Company, the
General Partner, the Issuer and the Noteholders contained in or made pursuant to
the Purchase
EXHIBIT 4.7(a)
(to Note Purchase Agreement)
Agreement, certificates of officers of the Parent Company, the Issuer and
certificates of public officials (which we have assumed are accurate on the date
hereof).
Our opinions expressed below are limited to the laws of the State of New
York and the federal laws of the United States, and the Revised Uniform Limited
Partnership Act of Delaware "RULPA") and we do not express any opinion herein
concerning any other law. Insofar as our opinions set forth in subparagraph (vi)
below assume due authorization, execution and delivery of the Parent Company
Guaranty under the federal laws of Canada applicable thereto, we understand that
such matters are covered in the opinion of W. ▇▇▇▇ ▇▇▇▇▇, Vice President and
Secretary of the Parent Company furnished to the Noteholders today in accordance
with the provisions of the Purchase Agreement.
Based upon the foregoing, and subject to the qualifications set forth
below, we are of the opinion that:
(i) The Issuer is a limited partnership, duly organized and validly
existing under the laws of the State of Delaware, has the limited partnership
power and the limited partnership authority to execute and perform the Purchase
Agreement and to issue the Notes and incur the debt to be evidenced thereby and
has the full limited partnership power and the limited partnership authority to
conduct the activities in which it is now engaged and is duly licensed or
qualified and is in good standing in each jurisdiction in which the character of
the properties owned or leased by it or the nature of the business transacted by
it makes such licensing or qualification necessary. The General Partner is the
sole general partner of the Issuer.
(ii) The Purchase Agreement has been duly authorized by all necessary
limited partnership action on the part of the Issuer and has been duly executed
and delivered by the Issuer.
(iii) The Notes have been duly authorized by all necessary limited
partnership action on the part of the Issuer and have been duly executed and
delivered by the Issuer.
(iv) The Purchase Agreement constitutes a legal, valid and binding
agreement of the Issuer enforceable in accordance with its terms.
(v) The Notes constitute the legal, valid and binding obligations of the
Issuer enforceable in accordance with their terms.
(vi) Assuming the due authorization, execution and delivery of the Parent
Company Guaranty by the Parent Company under the federal laws of Canada
applicable thereto, the Parent Company Guaranty constitutes a legal, valid and
binding agreement of the Parent Company enforceable in accordance with its
terms.
(vii) No consent, approval, authorization, order, registration or
qualification of or with any United States federal or New York State court or
governmental agency or body is required in connection with the execution and
delivery by (i) the Issuer or the General Partner on behalf of the Issuer of,
and the performance by the Issuer of its obligations under, the Purchase
Agreement
E-4.7(a)-2
and the Notes and (ii) the Parent Company of, and the performance by the Parent
Company of its obligations under, the Parent Company Guaranty.
(viii) The issuance and sale of the Notes and the execution, delivery and
performance by (i) the Issuer and the General Partner on behalf of the Issuer of
the Purchase Agreement and the Notes and (ii) the Parent Company of the Parent
Company Guaranty will not, in either case, result in the contravention of any
statute, regulation or order of any "Governmental Authority," as such term is
defined in the Purchase Agreement, of the United States of America or the State
of New York.
(ix) The issuance of the Notes and the use of the proceeds thereof as
contemplated by the Purchase Agreement will not result in any violation of
Regulation T, U or X of the board of Governors of the Federal Reserve System (12
C.F.R., Chapter II, as amended).
(x) No registration of the offer and sale of Notes to the Noteholders under
the Securities Act of 1933, and no qualification of a trust indenture in respect
of the Notes under the Trust Indenture Act of 1939, is required in connection
with the offer, sale and delivery of the Notes under the circumstances
contemplated by the Purchase Agreement.
(xi) The Issuer is not, and after giving effect to the issue and sale of
the Notes and the application of the proceeds thereof as described in the
Purchase Agreement, will not be, required to register as an "investment
company," as such term is defined in the Investment Company Act of 1940.
The opinions set forth below are subject to the following qualifications,
limitations and assumptions:
(i) The opinions set forth in subparagraphs (i) and (ii) above are subject
to the qualification that (a) enforcement is subject to the effect of any
applicable bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and subject to the
effects of bankruptcy, insolvency, fraudulent transfer and conveyance,
reorganization, receivership, moratorium and other similar laws (including
judicially developed doctrines with respect to such laws) affecting the rights
and remedies of creditors generally;
(ii) The effects of general principles of equity, including, without
limitation, concepts of materiality, reasonableness, good faith and fair dealing
(regardless of whether enforcement is considered in a proceeding in equity or at
law) and (b) any rights to indemnity and contribution under the Purchase
Agreement may be limited by federal and state securities laws and public policy
considerations underlying such laws, whether applied by a court of law or
equity, with respect to the performance and enforcement of the Transaction
Documents;
(iii) Applicable state and federal laws, court decisions and constitutional
requirements which may limit or render unenforceable certain of the rights and
remedies purportedly available to the Noteholder under the Transaction
Documents. It is our opinion, however, that none of the
E-4.7(a)-3
foregoing laws, decisions or requirements will materially interfere with the
practical realization of the benefits intended to be provided by the Transaction
Documents, although such realization may be delayed and rendered more costly as
a result of the invalidity or enforceability of such provisions;
(iv) We express no opinion as to the effect of any antitrust and unfair
competition laws and regulations, or pension and employment benefit laws and
regulations;
(v) We express no opinion as to any provisions in the Transaction Documents
that waive statutory rights to receive notice or to be allowed to cure defaults,
or that purport to establish particular notice periods or actions as reasonable
or particular determinations as conclusive or final and binding, or commit the
same to the discretion of any person;
(vi) Any limitations under applicable laws, judicial decisions and
considerations of public policy which relate to indemnification, exculpation and
contribution provisions;
(vii) We express no opinion as to provisions of the Transaction Documents
to the effect that rights or remedies are not inclusive, that every right or
remedy is cumulative and may be exercised in addition to or with any other right
or remedy, that election of a particular remedy or remedies does not preclude
recourse to one or more other remedies or that failure to exercise or delay in
exercising rights or remedies will not operate as a waiver of any such rights or
remedies;
(viii) We express no opinion as to provisions in the Transaction Documents
waiving vaguely or broadly stated rights or unknown future rights;
(ix) We express no opinion as to the enforceability of any provisions in
the Transaction Documents appointing one party as an attorney-in-fact for an
adverse party, or purporting to make a power-of-appointment irrevocable unless
it is coupled with an interest; and
(x) We express no opinion as to the enforceability of any provisions in the
Transaction Documents relating to restricting access to courts, waiving the
right to trial by jury.
We further express no opinion with respect to any questions of conflict of
laws, or any provisions in the Transaction Documents that purport to (a) require
that the Transaction Documents may not be amended, except in writing, (b)
require the disregarding of any course of dealing between parties, and (c)
provide for the enforceability of any Transaction Document, in whole or in part,
if any material term or provision thereof is determined to be unenforceable or
invalid or provide for the validity or enforceability of such invalid or
unenforceable provision in any other jurisdiction. To the extent that our
opinion herein is rendered as to RULPA, we call to your attention that we are
not admitted to practice, and have not consulted with counsel admitted to
practice, in the state of Delaware. We have based such opinion solely upon our
examination of RULPA, as reported in standard, unofficial compilations.
We express no opinion herein concerning any statutes, ordinances,
administrative decisions, rules or regulations of any county, town, municipality
or special political subdivision (whether created or enabled through legislative
action at the federal, state or regional level). This
E-4.7(a)-4
opinion letter is given as of the date hereof and we assume no obligation to
advise you of changes that may hereafter be brought to our attention.
This opinion is being furnished to the Noteholders solely for the
Noteholders' benefit and the benefit of their successors and permitted assigns
in connection with their purchase of the Notes, and is not to be used,
circulated, quoted or otherwise referred to for any other purpose, provided that
a copy of this opinion may be provided to any regulatory agency having authority
over you, including the National Association of Insurance Commissioners.
Very truly yours,
E-4.7(a)-5
FORM OF OPINION OF THE CHIEF LEGAL COUNSEL
TO THE PARENT COMPANY, THE GENERAL PARTNER AND THE ISSUER
April 4, 2006
TO THE NOTEHOLDERS LISTED
IN THE ATTACHED SCHEDULE "A"
(the "Noteholders")
Ladies and Gentlemen:
Re: Hub International Limited Partnership - Issue (the "Issue") of
U.S.$10,000,000 Principal Amount of 5.71%
Amended and Restated Series A Senior Notes
Due April 4, 2011 and U.S.$55,000,000 Principal Amount of 6.16%
Amended and Restated Series B Senior Notes Due June 15, 2013
(collectively, the "Notes") and Guaranty Agreement
with respect thereto by Hub International Limited
I am a Vice President and the Secretary of Hub International Limited, a
Canadian corporation (the "Company"). Prior to holding these offices, I was the
Chief Legal Officer of the Company. This letter is issued in connection with the
execution and delivery, subject to the terms and conditions set forth in the
Note Purchase Agreement (the "Purchase Agreement") dated April 4, 2006 between
Hub International Limited Partnership, a Delaware limited partnership (the
"Issuer"), and the several noteholders named in Schedule A to the Purchase
Agreement (the "Noteholders"), of US$10,000,000 aggregate principal amount of
5.71% Amended and Restated Senior Notes due April 4, 2011 of the Issuer and
U.S.$55,000,000 aggregate principal amount of 6.16% Senior Notes due June 15,
2013 of the Issuer (collectively, the "Notes"). The Notes are unconditionally
guarantied by the Company pursuant to that certain Guaranty Agreement dated
April 4, 2006 (the "Company Guaranty") entered into by the Company in favor of
and for the benefit of the holders of the Notes.
In such capacity, I have examined the Purchase Agreement, the Notes, the
Company Guaranty (together, the "Transaction Documents"), and the originals, or
copies identified to my satisfaction, of such corporate records of the Company,
partnership records of the Issuer, certificates of public officials,
certificates of officers of the Company, the Issuer and other persons, and such
other agreements and documents as I have deemed necessary as a basis for the
opinions hereinafter expressed. In my examination, I have assumed the
genuineness of all signatures other than those on behalf of the Company, the
General Partner and the Issuer, the authenticity of all documents submitted to
me as originals and the conformity with the originals of all documents submitted
to me as copies. In rendering my opinions, I have relied as to factual matters,
to the extent I deem proper, upon the representations and warranties of the
Company, the Issuer and the Noteholders contained in or made pursuant to the
Purchase Agreement,
EXHIBIT 4.7(b)
(to Note Purchase Agreement)
certificates of officers of the Company and the Issuer and certificates of
public officials (which I have assumed are accurate on the date hereof).
Subject to the last sentence of this paragraph, the opinions expressed
below are limited to the laws of the Province of Ontario and the federal laws of
Canada and I do not express any opinion herein concerning any other law. My
opinions are rendered only with respect to the laws, and the rules, regulations,
policies and orders thereunder, which are currently in effect. In addition, I do
not express any opinion herein concerning the securities laws of the Province of
Ontario or the rules, regulations, policies and orders thereunder. Matters
addressed in the opinions below not relating to the laws of the Province of
Ontario and the federal laws of Canada are provided by me on behalf of the
Company, the General Partner and the Issuer as a Vice President and the
Secretary of the Company and not in a personal capacity, and are based on my
knowledge as a Vice President and the Secretary of the Company, certificates of
officers of the Company and the Issuer and certificates of public officials.
Based upon the foregoing and subject to the assumptions, qualifications and
exceptions set forth herein, I am of the opinion that:
1. The Company is a corporation, duly incorporated and validly existing
under the laws of Canada, has the corporate power and the corporate authority to
execute and perform the Company Guaranty and has the full corporate power and
the corporate authority to conduct the activities in which it is now engaged and
is duly licensed or qualified and is in good standing in each jurisdiction in
which the character of the properties owned or leased by it or the nature of the
business transacted by it makes such licensing or qualification necessary. Hub
International Partners Limited is a corporation, duly organized and validly
existing under the laws of Province of Ontario, has the corporate power and the
corporate authority to execute the Purchase Agreement and the Notes on behalf of
the Issuer and to cause the Issuer to issue the Notes and to incur the debt to
be evidenced thereby and has full corporate power and corporate authority to
conduct the activities in which it is now engaged and is in good standing in
each jurisdiction in which the character of the properties owned or leased by it
or the nature of the business transacted by it makes such licensing or
qualification necessary.
2. Each Material Subsidiary (as such term is defined in Schedule A to this
letter and a list of which is set forth on such Schedule ) is an entity duly
organized, validly existing and in good standing under the laws of its
jurisdiction of organization, has the full corporate power and the corporate
authority to conduct the activities in which it is now engaged and is duly
licensed or qualified and is in good standing in each jurisdiction in which the
character of the properties owned or leased by it or the nature of the business
transacted by it makes such licensing or qualification necessary. All of the
issued and outstanding equity interests of each Material Subsidiary have been
duly issued and are fully paid and non-assessable.
3. The Company Guaranty has been duly authorized by all necessary corporate
action on the part of the Company and has been duly executed and delivered by
the Company. The execution by the General Partner of the Purchase Agreement on
behalf of the Issuer has been duly authorized by all necessary corporate action
on behalf of the General Partner and the Purchase Agreement has been duly
executed and delivered by the General Partner on behalf of
E-4.7(b)-2
the Issuer. The execution of the Notes by the General Partner on behalf of the
Issuer has been duly authorized by all necessary corporate action on the part of
the General Partner and the Notes have been duly executed and delivered by the
General Partner on behalf of the Issuer.
4. The issuance and sale of the Notes and the execution, delivery and
performance by the Issuer of the Purchase Agreement and the Notes and by the
Company of the Company Guaranty do not contravene, result in any breach of, or
constitute a default under, or result in the creation of any Lien in respect of
any property of the Company or any Material Subsidiary under any indenture,
mortgage, deed of trust, loan, purchase or credit agreement, lease, corporate
charter or by-laws, or any other material agreement or instrument to which the
Company or any Material Subsidiary is bound or by which the Company or any
Material Subsidiary or any of their respective properties may be bound or
affected.
5. Except as described in Item 3 of the Company's Form 10-K for the period
ending December 31, 2005 filed with the United States Securities and Exchange
Commission on March 13, 2006, there are no actions, suits or other proceedings
pending or, to my knowledge after due inquiry, threatened against or affecting
the Company or any Material Subsidiary or any property of the Company or any
Material Subsidiary in any court or before any arbitrator of any kind or any
governmental authority that, if adversely determined, could reasonably be
expected to materially and adversely affect the Issuer's ability to perform its
obligations under the Purchase Agreement or the Notes, the Company's ability to
perform its obligations under the Company Guaranty or the validity or
enforceability of the Purchase Agreement, the Notes or the Company Guaranty.
This opinion is being furnished to the Noteholders in connection with the
execution and delivery of the Notes solely for the Noteholders' benefit and the
benefit of their successors and permitted assigns, and is not to be used,
circulated, quoted or otherwise referred to for any other purpose, provided that
a copy of this opinion may be provided to any regulatory agency having authority
over you, including the National Association of Insurance Commissioners.
Very truly yours,
W. ▇▇▇▇ ▇▇▇▇▇
Vice-President and Secretary
E-4.7(b)-3
FORM OF OPINION OF CANADIAN COUNSEL
TO THE PARENT COMPANY
April 4, 2006
TO THE NOTEHOLDERS LISTED
IN ATTACHED SCHEDULE A:
Dear Sirs/Mesdames:
Re: Issue (the "Issue") of U.S.$10,000,000 Principal Amount of
5.71% Amended and Restated Series A Senior Notes
Due April 4, 2011 and U.S. $55,000,000 Principal Amount of
6.16% Amended and Restated Series B Senior Notes
Due June 15, 2013 (collectively, the "Notes") and
Guaranty Agreement with respect thereto by
HUB International Limited
We have acted as counsel to Hub International Limited, a Canadian
corporation (the "Parent Company"), in connection with the issue and sale today
by Hub International Limited Partnership, a limited partnership organized under
the laws of the State of Delaware (the "Issuer") to you of the Notes pursuant to
that certain note purchase agreement dated as of April 4, 2006 by and among the
Issuer and each of the addressees hereto (the "Note Purchase Agreement"). We
have also acted as counsel to Hub International Partners Limited (the "General
Partner"), an Ontario corporation and the general partner of the Issuer. This
opinion is being furnished to you pursuant to Section 4.7(c) of the Note
Purchase Agreement. The Notes are unconditionally guarantied by the Parent
Company pursuant to that certain Guaranty Agreement dated April 4, 2006 (the
"Parent Company Guaranty") by the Parent Company in favor of the holders of the
Notes. Capitalized terms used herein and not otherwise defined shall have the
respective meanings ascribed thereto in the Note Purchase Agreement.
We have examined originals or copies, certified or otherwise identified to
our satisfaction, of such documents, certificates and corporate records and such
other materials as we have considered necessary or appropriate for the purposes
of this opinion, including (a) an executed copy of the Note Purchase Agreement,
the Notes and the Parent Company Guaranty (each being a "Document" and,
collectively, the "Documents"), and (b) a certificate of officers of the Parent
Company and the Issuer as to certain factual matters.
In our examination of the foregoing documents, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals and the conformity to the originals thereof of all documents
submitted to us as certified or conformed copies, telecopies or photocopies.
EXHIBIT 4.7(c)
(to Note Purchase Agreement)
We have also examined such certificates of public officials and such other
certificates, documents and corporate and other records as we have considered
necessary as a basis for or relevant to the opinions hereinafter expressed.
We have assumed that:
(a) Each of the Parent Company and the General Partner is incorporated
and existing under the corporate laws applicable to it.
(b) The Parent Company has the corporate power and capacity to
execute, deliver and perform its obligations under the Parent Company
Guaranty.
(c) The General Partner has the corporate power and capacity to
execute, deliver and perform its obligations under the Note Purchase
Agreement and the Notes.
(d) The Parent Company has taken all necessary corporate action to
authorize the execution, delivery and performance by it of the Parent
Company Guaranty, and the Parent Company has duly executed and delivered
the Parent Company Guaranty.
(e) The General Partner has taken all necessary corporate action to
authorize the execution, delivery and performance by it of the Note
Purchase Agreement and the Notes on behalf of the Issuer, and the General
Partner has duly executed and delivered the Note Purchase Agreement and the
Notes on behalf of the Issuer.
(f) The execution, delivery and performance of the Parent Company
Guaranty by the Parent Company does not breach or result in a default under
the articles or by-laws of the Parent Company or any unanimous shareholders
agreement applicable thereto.
(g) The Issuer is a limited partnership each member of which is and
will be at all times when the Notes and the Parent Company Guaranty are
outstanding a corporation resident in Canada and the Parent Company is a
corporation resident in Canada within the meaning of the Income Tax Act
(Canada).
(h) The execution, delivery and performance of the Note Purchase
Agreement and the Notes by the General Partner on behalf of the Issuer does
not breach or result in a default under the articles or by-laws of the
General Partner, any unanimous shareholders agreement applicable thereto,
or the partnership agreement of the Issuer.
(i) All necessary partnership action has been taken to authorize the
execution, delivery and performance of the Note Purchase Agreement and the
Notes by the Issuer.
(j) If any obligation under the Documents is required to be performed
in any jurisdiction outside of Ontario, the performance of that obligation
will not be illegal under the laws of that jurisdiction.
E-4.7(c)-2
(k) The Documents constitute legal, valid and binding obligations of
the Parent Company and the Issuer, as applicable, enforceable against them
in accordance with their terms.
(l) The representations and warranties made by the Noteholders in the
Note Purchase Agreement are true and correct, and we are entitled to rely
upon them.
Based upon the foregoing and subject to the assumptions, qualifications,
limitations and exceptions set forth herein, we are of the opinion that:
1. The execution, delivery and performance by the Parent Company of the
Parent Company Guaranty, and the execution and delivery by the General Partner
on behalf of the Issuer of the Note Purchase Agreement and the Notes, will not
contravene any law, statute or regulation of Canada or the Province of Ontario
to which the Parent Company or the General Partner is subject.
2. No approval, consent or withholding of objection on the part of, or
filing, registration or qualification with, any federal or provincial
commission, board or regulatory authority of the Province of Ontario or of
Canada is required in connection with (a) the execution and delivery of the
Parent Company Guaranty by the Parent Company or the performance of the
transactions contemplated thereby, or (b) the execution and delivery of the Note
Purchase Agreement and the Notes by the General Partner on behalf of the Issuer.
3. No income taxes will be required to be withheld by the Issuer or the
Parent Company under the Income Tax Act (Canada), or under the income tax laws
of the Province of Ontario, in connection with any payment under the Notes or
Parent Company Guaranty of the principal of, or the interest or premium, if any,
on, the Notes by the Issuer or the Parent Company provided that at the time of
such payment each member of the Issuer and the Parent Company deals at arm's
length (within the meaning of the Income Tax Act (Canada)) with you. Moreover,
provided that you are neither a resident nor deemed to be a resident of Canada
for purposes of the Income Tax Act (Canada) and you neither use or hold nor are
deemed or determined by or for purposes of the Income Tax Act (Canada) to use or
hold the Notes or the Parent Company Guaranty in or in the course of carrying on
a business in Canada, no other income or capital gains tax is payable under the
Income Tax Act (Canada) or under the income tax laws of the Province of Ontario
in respect of the Notes or the Parent Company Guaranty merely as a consequence
of receiving interest or premium payable thereon. Neither the holding of the
Notes or the Parent Company Guaranty nor the receipt of any payment pursuant
thereto will, in and of itself, constitute the carrying on a business in Canada
under the Income Tax Act (Canada).
4. In the event that the Parent Company Guaranty is sought to be enforced
against the Parent Company or the Note Purchase Agreement or the Notes are
sought to be enforced against the General Partner (by virtue of it being the
general partner of the Issuer) in any action or proceeding in the Province of
Ontario in accordance with laws applicable thereto as chosen by the parties,
namely the laws of the State of New York ("New York Law"), the courts of
competent jurisdiction of the Province of Ontario (the "Ontario Courts") (i)
would recognize the
E-4.7(c)-3
choice of laws provided that such choice of laws is bona fide (in the sense that
it was not made with a view to avoiding the consequences of the law of any other
jurisdiction) and is not contrary to public policy, as such term is understood
under the laws of the Province of Ontario ("Ontario Law"), (ii) would apply New
York Law in any such action or proceeding, upon appropriate evidence as to such
laws being adduced, provided that none of the provisions of the Documents or of
New York Law, are contrary to public policy, as such term is understood under
Ontario Law ("Ontario Public Policy"), (iii) would apply Ontario Law that under
Ontario Law would be characterized as procedural, (iv) would apply provisions of
Ontario Law that have overriding effect, as interpreted under Ontario Law, and
(v) would not apply New York Law that under Ontario Law would be characterized
as revenue, expropriatory, penal or other public law. Subject to the following
sentence, any action or proceeding with respect to the Documents may be brought
against the Parent Company or the General Partner, as applicable, in an Ontario
Court. An Ontario Court may, however, reserve to itself an inherent power to
decline to hear an action if it is contrary to public policy, as such term is
understood under Ontario Law, for it to do so, or if it is not the proper forum
to hear such action, or if concurrent proceedings are being brought elsewhere.
Assuming that the same meaning would be given to the terms used in the Documents
under New York Law as under Ontario Law, to the best of our knowledge none of
the provisions of the Documents would violate Ontario Public Policy or be
subject to provisions of Ontario Law that have overriding effect.
5. Ontario Law and the federal laws of Canada applicable therein permit an
action to be brought before an Ontario Court on a final and conclusive judgment
in personam of a court of a state of the United States of America or a federal
court sitting therein (a "Foreign Court") that is subsisting and unsatisfied and
not impeachable as void or voidable or otherwise ineffective under applicable
United States federal or state law and for a sum certain if: (A) the Foreign
Court rendering such judgment had jurisdiction over the judgment debtor, as
recognized by an Ontario Court; (B) such judgment was not obtained by fraud or
in a manner contrary to natural justice or other rule of law, whether equitable,
legal or statutory, and the enforcement thereof would not be inconsistent with
public policy, as such term is understood under Ontario Law and the federal laws
of Canada applicable therein or contrary to any order made by the Attorney
General of Canada under the Foreign Extraterritorial Measures Act (Canada) or by
the Competition Tribunal under the Competition Act (Canada); (C) the enforcement
of such judgment does not constitute, directly or indirectly, the enforcement of
foreign revenue, expropriatory or penal laws; and (D) the action to enforce such
judgment is commenced within the applicable limitation period.
6. The submission by the Parent Company and the Issuer to the non-exclusive
jurisdiction of the courts of the State of New York sitting in the Borough of
Manhattan and the federal courts of the United States of America for the
Southern District of New York, contained in Section 12 of the Parent Company
Guaranty and Section 22 of the Note Purchase Agreement, respectively, would be
recognized and given effect by the Ontario Courts as a valid submission to the
jurisdiction of such courts, provided that the provisions of the Parent Company
Guaranty or the Note Purchase Agreement respecting service of process on the
Parent Company or the Issuer, as the case may be, are duly complied with.
E-4.7(c)-4
7. Each of the Parent Company and the General Partner is subject to the
relevant civil and commercial law of Ontario with respect to its obligations
under the Parent Company Guaranty or the Note Purchase Agreement and the Notes,
respectively, and neither the Parent Company or the General Partner nor its
assets has the benefit of any right of immunity, whether sovereign immunity or
otherwise, from any action, suit, proceeding or execution in respect of its
obligations under the Parent Company Guaranty or the Note Purchase Agreement and
the Notes, as applicable.
8. No stamp, registration, documentary or other similar tax, duty or fee is
payable under Canadian federal law or Ontario Law in connection with the
execution and delivery of the Parent Company Guaranty by the Parent Company or
the execution and delivery of the Note Purchase Agreement and the Notes by the
General Partner on behalf of the Issuer.
9. To ensure the admissibility into evidence, no notarization of the
Documents, and no registration or filing with or notice to, any governmental
agency or authority of the Province of Ontario or Canada is required.
The foregoing opinions are subject to the following assumptions,
qualifications, limitations and exceptions:
(a) the enforcement of any Document may be limited by any applicable
bankruptcy, insolvency, winding-up, reorganization, arrangement,
moratorium or other laws affecting creditors' rights generally;
(b) the enforcement of the Documents will be subject to the Limitations
Act, 2002 (Ontario) and we express no opinion as to whether a court
may find a provision of any Document to be unenforceable as an attempt
to vary or exclude a limitation period under that Act;
(c) the enforcement of any Document may be limited by general principles
of equity and the obligation to act in a reasonable manner, and no
opinion is expressed regarding the availability of any equitable
remedy (including those of specific performance and injunction) which
remedies are only available in the discretion of a court of competent
jurisdiction;
(d) any requirement in any of the Documents that interest be paid at a
higher rate after than before default may not be enforceable;
(e) no opinion is expressed as to compliance with the Personal Information
Protection and Electronic Documents Act (Canada) or any other
applicable privacy laws;
(f) pursuant to the Currency Act (Canada), a judgment by an Ontario court
must be awarded in Canadian currency and that such judgment may be
based on a rate of exchange in existence on a day other than the day
of payment; and
E-4.7(c)-5
(g) we express no opinion as to the enforceability of the Documents.
Our opinions expressed above are limited to Ontario Law and the laws of
Canada applicable therein. Our opinions are rendered only with respect to the
laws, and the rules, regulations, policies and orders thereunder, which are
currently in effect. In connection with the opinions given in paragraph 3 above,
we are relying on our understanding of the current administrative policies and
assessing practices of the Canada Revenue Agency (the "CRA") made publicly
available prior to the date hereof, including the long-standing administrative
policy of the CRA that the exemption from Canadian withholding tax contained in
paragraph 212(1)(b)(vii) of the Income Tax Act (Canada) can be applicable to
debt of a partnership where each of the partners is a corporation resident in
Canada for purposes of the Income Tax Act (Canada). We express no opinion as to
whether, absent such long-standing administrative policy, payments under the
Notes and the Parent Company Guaranty would be subject to withholding tax under
the Income Tax Act (Canada).
This letter is furnished by us solely for your benefit and the benefit of
your successors and permitted assigns in connection with the transactions
referred to in the Documents and may not be relied upon by any other Person.
Very truly yours,
E-4.7(c)-6
FORM OF OPINION OF SPECIAL COUNSEL
TO THE NOTEHOLDERS
The closing opinion of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special counsel to the
Noteholders, called for by SECTION 4.7(D) of the Agreement, shall be dated the
date of the Effective Date and addressed to the Noteholders, shall be
satisfactory in form and substance to the Noteholders and shall be to the effect
that:
1. The Agreement and the Notes being delivered on the date hereof
constitute the legal, valid and binding contracts of the Issuer, enforceable
against the Issuer in accordance with its terms. The Guaranty Agreement
constitutes the legal, valid and binding contract of the Parent Company,
enforceable against the Parent Company in accordance with its terms.
2. The issuance, sale and delivery of the Notes being delivered on the date
hereof under the circumstances contemplated by this Agreement do not, under
existing law, require the registration of such Notes under the Securities Act or
the qualification of an indenture under the Trust Indenture Act of 1939, as
amended.
The opinion of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP shall also state that the opinions of
▇▇▇▇▇▇ ▇▇▇▇▇▇ Rosenman LLP, W. ▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP are
satisfactory in scope and form to ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP and that, in their
opinion, the Noteholders are justified in relying thereon.
The opinion of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP is limited to the laws of the State
of New York, the general business corporation law of the State of Delaware and
the Federal laws of the United States.
With respect to matters of fact upon which such opinion is based, ▇▇▇▇▇▇▇
and ▇▇▇▇▇▇ LLP may rely on appropriate certificates of public officials and
officers of the Parent Company and the Issuer and upon representations of the
Parent Company, the Issuer and the Noteholders delivered in connection with the
issuance and sale of the Notes.
EXHIBIT 4.7(d)
(to Note Purchase Agreement)
