Exhibit 10.159
EXECUTION VERSION
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XXXXXXX & CO.
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NOTE PURCHASE AND PRIVATE SHELF AGREEMENT
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DATED AS OF APRIL 9, 2009
$50,000,000 PRINCIPAL AMOUNT OF 10.0% SERIES A SENIOR NOTES
DUE APRIL 9, 2018
UP TO $100,000,000
PRIVATE SHELF FACILITY
GUARANTIED BY
XXXXXXX AND COMPANY
XXXXXXX & CO. INTERNATIONAL
XXXXXXX & CO. JAPAN INC.
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TABLE OF CONTENTS
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Page
1. AUTHORIZATION OF NOTES..................................................................................1
2. SALE AND PURCHASE OF NOTES..............................................................................2
3. CLOSING.................................................................................................6
4. CONDITIONS TO CLOSING...................................................................................7
4.1. Representations and Warranties.................................................................7
4.2. Performance; No Default........................................................................7
4.3. Compliance Certificates........................................................................7
4.4. Opinions of Counsel............................................................................8
4.5. Purchase Permitted By Applicable Law, etc......................................................8
4.6. Guaranty Agreement.............................................................................8
4.7. Payment of Fees................................................................................9
4.8. Private Placement Numbers......................................................................9
4.9. Changes in Corporate Structure.................................................................9
4.10. Proceedings and Documents......................................................................9
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY...........................................................9
5.1. Organization; Power and Authority..............................................................9
5.2. Authorization, etc............................................................................10
5.3. Disclosure....................................................................................10
5.4. Organization and Ownership of Shares of Subsidiaries; Affiliates..............................10
5.5. Financial Statements..........................................................................11
5.6. Compliance with Laws, Other Instruments, etc..................................................11
5.7. Governmental Authorizations, etc..............................................................12
5.8. Litigation; Observance of Agreements, Statutes and Orders.....................................12
5.9. Taxes.........................................................................................12
5.10. Title to Property; Leases.....................................................................12
5.11. Licenses, Permits, etc........................................................................13
5.12. Compliance with ERISA.........................................................................13
5.13. Private Offering by the Company...............................................................14
5.14. Use of Proceeds; Margin Regulations...........................................................14
5.15. Existing Indebtedness; Future Liens...........................................................15
5.16. Foreign Assets Control Regulations, etc.......................................................15
5.17. Status under Certain Statutes.................................................................15
5.18. Environmental Matters.........................................................................16
6. REPRESENTATIONS OF THE PURCHASERS......................................................................16
6.1. Purchase for Investment.......................................................................16
6.2. Source of Funds...............................................................................16
7. INFORMATION AS TO COMPANY..............................................................................18
7.1. Financial and Business Information............................................................18
7.2. Officer's Certificate.........................................................................21
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TABLE OF CONTENTS
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(continued)
7.3. Inspection....................................................................................21
8. PAYMENT OF THE NOTES...................................................................................22
8.1. Interest Rates................................................................................22
8.2. Required Principal Prepayments; Payment at Maturity...........................................22
8.3. Optional Prepayments with Make-Whole Amount...................................................22
8.4. Allocation of Partial Prepayments.............................................................23
8.5. Maturity; Surrender, etc......................................................................23
8.6. No Other Optional Prepayments or Purchase of Notes............................................23
8.7. Make-Whole Amount.............................................................................23
9. AFFIRMATIVE COVENANTS..................................................................................25
9.1. Compliance with Law...........................................................................25
9.2. Insurance.....................................................................................25
9.3. Maintenance of Properties.....................................................................25
9.4. Payment of Taxes and Claims...................................................................25
9.5. Corporate Existence, etc......................................................................26
9.6. Subsequent Guarantors.........................................................................26
10. NEGATIVE COVENANTS.....................................................................................26
10.1. Transactions with Affiliates..................................................................26
10.2. Line of Business..............................................................................27
10.3. Limitation on Debt............................................................................27
10.4. Liens.........................................................................................28
10.5. Merger, Consolidation, etc....................................................................30
10.6. Sale of Assets................................................................................32
10.7. Most Favored Lender Status....................................................................35
10.8. Specified Formal MFL Amendment................................................................36
11. EVENTS OF DEFAULT......................................................................................36
12. REMEDIES ON DEFAULT, ETC...............................................................................39
12.1. Acceleration..................................................................................39
12.2. Other Remedies................................................................................39
12.3. Rescission....................................................................................40
12.4. No Waivers or Election of Remedies, Expenses, etc.............................................40
13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES..........................................................40
13.1. Registration of Notes.........................................................................40
13.2. Transfer and Exchange of Notes................................................................41
13.3. Replacement of Notes..........................................................................41
14. PAYMENTS ON NOTES......................................................................................41
14.1. Place of Payment..............................................................................41
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TABLE OF CONTENTS
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(continued)
14.2. Home Office Payment...........................................................................42
15. EXPENSES, ETC..........................................................................................42
15.1. Transaction Expenses..........................................................................42
15.2. Survival......................................................................................43
16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT...........................................43
17. AMENDMENT AND WAIVER...................................................................................43
17.1. Requirements..................................................................................43
17.2. Solicitation of Holders of Notes..............................................................43
17.3. Binding Effect, etc...........................................................................44
17.4. Notes held by Company, etc....................................................................44
18. NOTICES................................................................................................44
19. REPRODUCTION OF DOCUMENTS..............................................................................45
20. CONFIDENTIAL INFORMATION...............................................................................45
21. SUBSTITUTION OF PURCHASER..............................................................................47
22. MISCELLANEOUS..........................................................................................47
22.1. Successors and Assigns........................................................................47
22.2. Payments Due on Non-Business Days.............................................................47
22.3. Severability..................................................................................47
22.4. Construction..................................................................................48
22.5. Counterparts..................................................................................48
22.6. Governing Law.................................................................................48
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Schedules and Exhibits
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Schedule A -- Information Relating to Purchasers
Schedule B -- Defined Terms
Schedule 3 -- Payment Instructions
Schedule 4.9 -- Changes in Corporate Structure
Schedule 5.4 -- Subsidiaries of the Company and Ownership of Subsidiary Stock
Schedule 5.5 -- Financial Statements
Schedule 5.12 -- Postretirement Benefit Obligations; ERISA Affiliates
Schedule 5.15 -- Existing Indebtedness and Liens
Schedule 10.3 Exclusions from Priority Debt
Exhibit 1A -- Form of 10.0% Series A Senior Note due April 9, 2018
Exhibit 1B -- Form of Shelf Note
Exhibit B -- Form of Request for Purchase
Exhibit C -- Form of Confirmation of Acceptance
Exhibit 4.4(a)-1 -- Form of Opinion of Special Counsel for Company and Guarantors -
Series A Notes
Exhibit 4.4(a)-2 -- Form of Opinion of Special Counsel for Company and Guarantors -
Shelf Notes
Exhibit 4.4(b)-1 -- Form of Opinion of General Counsel for Company and Guarantors -
Series A Notes
Exhibit 4.4(b)-2 -- Form of Opinion of General Counsel for Company and Guarantors -
Shelf Notes
Exhibit 4.4(c)-1 -- Form of Opinion of Special Counsel for Purchasers - Series A Notes
Exhibit 4.4(c)-2 -- Form of Opinion of Special Counsel for Purchasers - Shelf Notes
Exhibit 4.6(a) -- Form of Guaranty Agreement
Exhibit 4.6(b) -- Form of Confirmation and Affirmation of Guaranty
XXXXXXX & CO.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
$50,000,000 10.0% SERIES A SENIOR NOTES DUE APRIL 9, 2018
UP TO $100,000,000 PRIVATE SHELF FACILITY
Dated as of April 9, 2009
Separately addressed to Metropolitan Life Insurance Company and each of the
other Purchasers listed on the attached Schedule A
Ladies and Gentlemen:
XXXXXXX & CO., a Delaware corporation (together with its successors and
assigns, the "Company"), agrees with Metropolitan Life Insurance Company
("MetLife") and each other Purchaser as follows:
1. AUTHORIZATION OF NOTES.
(a) Authorization of Issue of Series A Notes. The Company will authorize
the issue of its senior promissory notes (the "Series A Notes") in the aggregate
principal amount of $50,000,000, to be dated the date of issue thereof, to
mature April 9, 2018, to bear interest on the unpaid balance thereof from the
date thereof until the principal thereof shall have become due and payable at
the rate of 10.0% per annum, and on overdue principal, Make-Whole Amount and
interest at the rate specified therein, and to be substantially in the form of
Exhibit 1A attached hereto. The terms "Series A Note" and "Series A Notes" as
used herein shall include each Series A Note delivered pursuant to any provision
of this Agreement and each Series A Note delivered in substitution or exchange
for any such Series A Note pursuant to any such provision.
(b) Authorization of Issue of Shelf Notes. The Company will authorize the
issue in one or more series of its additional senior promissory notes (the
"Shelf Notes") in an aggregate principal amount not to exceed $100,000,000, to
be dated the date of issue thereof, to have a final maturity date, in the case
of each Shelf Note so issued, no more than 12 years after the date of original
issuance thereof, to have a Weighted Average Life to Maturity, in the case of
each Shelf Note so issued, of no more than 10 years after the date of original
issuance thereof, to bear interest on the unpaid balance thereof from the date
thereof at the applicable rate per annum, and to have such other particular
terms, as shall be set forth, in the case of each Shelf Note so issued, in the
Confirmation of Acceptance with respect to such Shelf Note delivered pursuant to
Section 2(b)(v), and to be substantially in the form of Exhibit 1B attached
hereto. The terms "Shelf Note" and "Shelf Notes" as used herein shall include
each Shelf Note delivered pursuant to any provision of this Agreement and each
Shelf Note delivered in substitution or exchange for any such Shelf Note
pursuant to any such provision. The terms "Note" and "Notes" as used herein
shall include each Series A Note and each Shelf 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. Notes which have (i) the same
final maturity, (ii) the same principal prepayment dates, (iii) the same
principal prepayment amounts (as a percentage of the original principal amount
of each Note), (iv) the same interest rate, (v) the same interest payment
periods and (vi) the same date of issuance (which, in the case of a Note issued
in exchange for another Note, shall be deemed for these purposes the date on
which such Note's ultimate predecessor Note was issued), are herein called a
"Series" of Notes.
Certain capitalized terms used in this Agreement are defined in Schedule B;
references to a "Schedule" or an "Exhibit" are, unless otherwise specified, to a
Schedule or an Exhibit attached to this Agreement; and references to a "Section"
are, unless otherwise specified, references to a Section of this Agreement.
2. SALE AND PURCHASE OF NOTES.
(a) Purchase and Sale of Series A Notes. Subject to the terms and
conditions of this Agreement, the Company will issue and sell to the Series A
Purchasers and the Series A Purchasers will purchase from the Company, at the
Series A Closing Day provided for in Section 3(a), Series A Notes in the
principal amounts specified below its name in Schedule A at the purchase price
of 100% of the principal amount thereof. The obligations of the Series A
Purchasers are several and not joint obligations and no Series A Purchaser shall
have any obligation under this Agreement or any liability to any Person for the
performance or non-performance by any other Series A Purchaser hereunder. The
Company may, but will not be obligated, to issue and sell any of the Series A
Notes unless the Series A Purchasers purchase an aggregate of $50,000,000 of
Series A Notes.
(b) Purchase and Sale of Shelf Notes.
(i) Facility. MetLife is willing to consider, in its sole discretion
and within limits which may be authorized for purchase by MetLife and
MetLife Affiliates from time to time, the purchase of Shelf Notes pursuant
to this Agreement. The willingness of MetLife to consider such purchase of
Shelf Notes is herein called the "Facility". At any time, the aggregate
principal amount of Shelf Notes stated in Section 1(b), minus the aggregate
original principal amount of Shelf Notes purchased and ----- sold pursuant
to this Agreement prior to such time, minus the aggregate principal amount
of Accepted Notes (as hereinafter ----- defined) which have not yet been
purchased and sold hereunder prior to such time, is herein called the
"Available Facility Amount" at such time. NOTWITHSTANDING THE WILLINGNESS
OF METLIFE TO CONSIDER PURCHASES OF SHELF NOTES, THIS AGREEMENT IS ENTERED
INTO ON THE EXPRESS UNDERSTANDING THAT NEITHER METLIFE NOR ANY METLIFE
AFFILIATE SHALL BE OBLIGATED TO MAKE OR ACCEPT OFFERS TO PURCHASE SHELF
NOTES, OR TO QUOTE RATES, SPREADS OR OTHER TERMS WITH RESPECT TO SPECIFIC
PURCHASES OF SHELF NOTES, AND THE FACILITY SHALL IN NO WAY BE CONSTRUED AS
A COMMITMENT BY METLIFE OR ANY METLIFE AFFILIATE.
(ii) Issuance Period. Shelf Notes may be issued and sold pursuant to
this Agreement from time to time until the earliest of (A) the third
anniversary of the date of this Agreement (or if such anniversary is not a
Business Day, the Business Day next preceding such anniversary), (B) the
thirtieth (30th) day after MetLife shall have given to the Company, or the
Company shall have given to MetLife, written notice stating that MetLife or
the Company, as applicable, elects to terminate the issuance and sale of
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Shelf Notes pursuant to this Agreement (or if such thirtieth (30th) day is
not a Business Day, the Business Day next preceding such thirtieth (30th)
day) and (C) the date MetLife shall have given to the Company written
notice stating that MetLife elects to terminate the issuance and sale of
Shelf Notes pursuant to this Agreement due to the occurrence of any Event
of Default or the acceleration of the maturity of any Note. The period
during which Shelf Notes may be issued and sold pursuant to this Agreement
is herein called the "Issuance Period".
(iii) Request for Purchase. The Company may from time to time during
the Issuance Period make requests for purchases of Shelf Notes (each such
request being herein called a "Request for Purchase"). Each Request for
Purchase shall be made to MetLife by telefacsimile or overnight delivery
service (in accordance with Section 18), and shall (A) specify the
aggregate principal amount of Shelf Notes covered thereby, which shall not
be less than $10,000,000 and not be greater than the Available Facility
Amount at the time such Request for Purchase is made, (B) specify the
principal amounts, final maturities, principal prepayment dates and amounts
and interest payment periods (which must be either quarterly or
semi-annually in arrears) of the Shelf Notes covered thereby, (C) specify
the use of proceeds of such Shelf Notes, (D) specify the proposed day for
the closing of the purchase and sale of such Shelf Notes, which shall be a
Business Day during the Issuance Period not less than ten (10) days and not
more than twenty (20) days after the making of such Request for Purchase,
(E) specify the number of the account and the name and address of the
depository institution to which the purchase prices of such Shelf Notes are
to be transferred on the Closing Day for such purchase and sale, (F)
certify that (I) the representations and warranties contained in Section 5
(assuming Schedules 5.4, 5.12 and 5.15 attached to such Request for
Purchase are substituted for said Schedules originally attached to this
Agreement) are true on and as of the date of such Request for Purchase,
(II) the proceeds from the sale of such Shelf Notes will not be used for
the purpose of funding a Hostile Tender Offer and (III) there exists on the
date of such Request for Purchase no Event of Default or Default, and (G)
be substantially in the form of Exhibit B attached hereto. Each Request for
Purchase shall be in writing and shall be deemed made when received by
MetLife.
(iv) Rate Quotes. Not later than five (5) Business Days after the
Company shall have given MetLife a Request for Purchase pursuant to Section
2(b)(iii), MetLife may, but shall be under no obligation to, provide to the
Company by telephone or telefacsimile, in each case between 9:30 a.m. and
1:30 p.m. New York City local time fixed interest rate quotes for the
several principal amounts, maturities, principal prepayment schedules, and
interest payment periods of Shelf Notes specified in such Request for
Purchase (each such interest rate quote provided in response to a Request
for Purchase herein called a "Quotation"). Each Quotation shall represent
the interest rate per annum payable on the outstanding principal balance of
such Shelf Notes at which MetLife or a MetLife Affiliate would be willing
to purchase such Shelf Notes at 100% of the principal amount thereof.
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(v) Acceptance. Within the Acceptance Window in respect to any
Quotation, an Authorized Officer of the Company may, subject to Section
2(b)(vi), elect to accept on behalf of the Company such Quotation as to the
aggregate principal amount of the Shelf Notes specified in the related
Request for Purchase (each such Shelf Note being herein called an "Accepted
Note" and such acceptance being herein called an "Acceptance"). The day the
Company notifies MetLife of its Acceptance with respect to any Accepted
Notes is herein called the "Acceptance Day" for such Accepted Notes. Any
Quotation as to which MetLife does not receive an Acceptance within the
Acceptance Window in respect of such Quotation shall expire, and no
purchase or sale of Shelf Notes hereunder shall be made based on any such
expired Quotation. Subject to Section 2(b)(vi) and the other terms and
conditions hereof, the Company agrees to sell to MetLife or a MetLife
Affiliate, and MetLife agrees to purchase, or to cause the purchase by a
MetLife Affiliate of, the Accepted Notes at 100% of the principal amount of
such Notes. As soon as practicable following the Acceptance Day, the
Company, MetLife and each MetLife Affiliate which is to purchase any such
Accepted Notes will execute a confirmation of such Acceptance substantially
in the form of Exhibit C attached hereto with respect to such Accepted
Notes (herein called a "Confirmation of Acceptance"). If the Company should
fail to execute and return to MetLife within three (3) Business Days
following receipt thereof a Confirmation of Acceptance with respect to any
Accepted Notes, MetLife may at its election at any time prior to its
receipt thereof cancel the closing with respect to such Accepted Notes by
so notifying the Company in writing.
(vi) Market Disruption. Notwithstanding the provisions of Section
2(b)(v), any Quotation provided pursuant to Section 2(b)(iv) shall expire
if, prior to the time an Acceptance with respect to such Quotation shall
have been notified to MetLife in accordance with Section 2(b)(v), the
domestic market for U.S. Treasury securities or derivatives shall have
closed or there shall have occurred a general suspension, material
limitation, or significant disruption of trading in securities generally on
the New York Stock Exchange or in the domestic market for U.S. Treasury
securities or derivatives. No purchase or sale of Shelf Notes hereunder
shall be made based on such expired Quotation. If the Company thereafter
notifies MetLife of the Acceptance of any such Quotation, such Acceptance
shall be ineffective for all purposes of this Agreement, and MetLife shall
promptly notify the Company that the provisions of this Section 2(b)(vi)
are applicable with respect to such Acceptance.
(vii) Company Obligation. The Company may, but will not be obligated,
to issue and sell any Accepted Notes on any Closing Day for Accepted Notes
unless the Purchasers purchase the entire principal amount of Accepted
Notes scheduled for sale and purchase on such Closing Day.
(c) Fees.
(i) Structuring Fee. In consideration for the time, effort and expense
involved in the preparation, negotiation and execution of this Agreement,
at the time of the execution and delivery of this Agreement by the Company
and each of the Series A Purchasers, the Company will pay to each Series A
Purchaser in immediately available funds a fee (herein called the
"Structuring Fee") equal to the product of (A) $50,000 times (B) a
fraction, the numerator of which is the principal amount of Series A Notes
to be purchased by such Series A Purchaser and the denominator of which is
$50,000,000.
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(ii) Rate Lock Delayed Delivery Fee. If the Series A Closing Day is
after April 22, 2009 for any reason other than the failure of one or more
Purchasers to deliver payment for the Series A Notes as provided in Section
3(a), the Company will pay to each Series A Purchaser on the actual Series
A Closing Day in immediately available funds an amount equal to the product
of (A) the Rate Lock Delayed Delivery Fee times (B) a fraction, the
numerator of which is the principal amount of Series A Notes purchased by
such Series A Purchaser and the denominator of which is $50,000,000.
(iii) Issuance Fee. The Company will pay to each Purchaser in
immediately available funds a fee (herein called the "Issuance Fee") on
each Closing Day in an amount equal to 0.10% of the aggregate principal
amount of Notes sold to such Purchaser on such Closing Day.
(iv) Delayed Delivery Fee. If the closing of the purchase and sale of
any Accepted Note is delayed beyond the original Closing Day for such
Accepted Note for any reason other than the failure of one or more
Purchasers to deliver payment for the Accepted Notes as provided in Section
3(b), the Company shall pay each Purchaser which shall have agreed to
purchase such Accepted Note, on the Cancellation Date or actual Closing Day
of such purchase and sale, an amount (the "Delayed Delivery Fee") equal to
the product of (A) the amount determined by MetLife in good faith to be the
amount by which the bond equivalent yield per annum of such Accepted Note
exceeds the investment rate per annum on an alternative investment of the
highest quality selected by MetLife in good faith and having a maturity
date or dates the same as, or closest to, the Rescheduled Closing Day from
time to time fixed for the delayed delivery of such Accepted Note, (B) the
principal amount of such Accepted Note, and (C) a fraction the numerator of
which is equal to the number of actual days elapsed from and including the
original Closing Day for such Accepted Note to but excluding the date of
such payment, and the denominator of which is 360. In no case shall the
Delayed Delivery Fee be less than zero. Nothing contained herein shall
obligate any Purchaser to purchase any Accepted Note on any day other than
the Closing Day for such Accepted Note, as the same may be rescheduled from
time to time in compliance with Section 3(b).
(v) Cancellation Fee. If the Company at any time notifies MetLife in
writing that the Company is canceling the closing of the purchase and sale
of any Accepted Note, or if MetLife notifies the Company in writing under
the circumstances set forth in the penultimate sentence of Section 3(b)
that the closing of the purchase and sale of such Accepted Note is to be
canceled, or if the closing of the purchase and sale of such Accepted Note
is not consummated on or prior to the last day of the Issuance Period for
any reason other than the failure of one or more Purchasers to deliver
payment for the Notes as provided in Section 3 (the date of any such
notification, or the last day of the Issuance Period, as the case may be,
being herein called the "Cancellation Date"), the Company shall pay each
Purchaser which shall have agreed to purchase such Accepted Note in
immediately available funds on the Cancellation Date an amount (the
"Cancellation Fee") equal to the product of (A) the principal amount of
such Accepted Note and (B) the quotient (expressed in decimals) obtained by
dividing (I) the excess of the ask price (as determined by MetLife in good
faith) of the Hedge Treasury Note(s) in respect of such Accepted Note on
the Cancellation Date over the bid price (as determined by MetLife in good
faith) of such Hedge Treasury Note(s) on the (Acceptance Day for such
Accepted Note by (II) such bid price, with the foregoing bid and ask prices
as reported by TradeWeb LLC (or if such data for any reason ceases to be
available through TradeWeb LLC any publicly available source of such market
data selected by MetLife in good faith) and rounded to the second decimal
place. In no case shall the Cancellation Fee be less than zero.
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3. CLOSING.
(a) Series A Closing Day. The sale and purchase of the Series A Notes
to be purchased by the Series A Purchasers shall occur at the offices of
Xxxxxxx XxXxxxxxx LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, at
10:00 a.m., local time, at a closing (the date of such closing herein
referred to as the "Series A Closing Day") on April 9, 2009, or on such
other Business Day thereafter as may be agreed upon by the Company and the
Series A Purchasers. At the Series A Closing Day, the Company will deliver
to each Series A Purchaser the Notes to be purchased by such Series A
Purchaser in the form of a single Note (or such greater number of Notes in
denominations of at least $100,000 as such Series A Purchaser may request),
dated the date of the Series A Closing Day and registered in the name of
such Series A Purchaser (or in the name of its nominee), as indicated in
Schedule A, against payment by federal funds wire transfer in immediately
available funds of the amount of the purchase price therefor as directed by
the Company in Schedule 3. If, at the Series A Closing Day, the Company
shall fail to tender such Notes to any Series A Purchaser as provided above
in this Section 3(a), or any of the conditions specified in Section 4 shall
not have been fulfilled to such Series A Purchaser's satisfaction, such
Series A Purchaser shall, at its election, be relieved of all further
obligations under this Agreement, without thereby waiving any rights it may
have by reason of such failure or such nonfulfillment.
(b) Facility Closings. Not later than 11:30 a.m. (New York City local
time) on the Closing Day for any Accepted Notes, the Company will deliver
to each Purchaser listed in the Confirmation of Acceptance relating thereto
at the offices of Xxxxxxx XxXxxxxxx LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000-0000, or such other place as MetLife may specify, the Accepted
Notes to be purchased by such Purchaser in the form of one or more Notes in
authorized denominations as such Purchaser may request for each Series of
Accepted Notes to be purchased on such Closing Day, dated such Closing Day
and registered in such Purchaser's name (or in the name of its nominee),
against payment of the purchase price thereof by transfer of immediately
available funds for credit to the Company's account specified in the
Request for Purchase of such Notes. If the Company fails to tender to any
Purchaser the Accepted Notes to be purchased by such Purchaser on the
scheduled Closing Day for such Accepted Notes as provided above in this
Section 3(b), or any of the conditions specified in Section 4 shall not
have been fulfilled by the time required on such scheduled Closing Day, the
Company shall, prior to 1:00 p.m., New York City local time, on such
scheduled Closing Day notify MetLife (which notification shall be deemed
received by each Purchaser) in writing whether (i) such closing is to be
rescheduled (such rescheduled date to be a Business Day during the Issuance
Period not less than one (1) Business Day and not more than ten (10)
Business Days after such scheduled Closing Day (the "Rescheduled Closing
Day")) and certify to MetLife (which certification shall be for the benefit
of each Purchaser) that the Company reasonably believes that it will be
able to comply with the conditions set forth in Section 4 on such
Rescheduled Closing Day and that the Company will pay the Delayed Delivery
Fee in accordance with Section 2(c)(iv) or (ii) such closing is to be
canceled. In the event that the Company shall fail to give such notice
referred to in the preceding sentence, MetLife (on behalf of each
Purchaser) may at its election, at any time after 1:00 p.m., New York City
local time, on such scheduled Closing Day, notify the Company in writing
that such closing is to be canceled. Notwithstanding anything to the
contrary appearing in this Agreement, the Company may not elect to
reschedule a closing with respect to any given Accepted Notes on more than
one occasion, unless MetLife shall have otherwise consented thereto in
writing.
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4. CONDITIONS TO CLOSING.
The obligation of each Purchaser to purchase and pay for the Notes to
be sold to such Purchaser on each Closing Day in respect of the Notes to be
acquired by such Purchaser is subject to the fulfillment to its
satisfaction, prior to or at such Closing Day, of the following conditions:
4.1. Representations and Warranties.
The representations and warranties of the Company in this Agreement
shall be correct when made and as of such Closing Day.
4.2. Performance; No Default.
The Company and each of the Guarantors shall have performed and
complied with all agreements and conditions contained in the Financing
Documents required to be performed or complied with by the Company or such
Guarantor prior to or on such Closing Day, and, after giving effect to the
issue and sale of the applicable Notes (and the application of the proceeds
thereof as contemplated by this Agreement in respect of the Series A Notes
or as set forth in the Request for Purchase in respect of any other Notes),
no Default or Event of Default shall have occurred and be continuing.
4.3. Compliance Certificates.
(a) Officer's Certificate. The Company shall have delivered to each
Purchaser an Officer's Certificate, dated such Closing Day, certifying that
the conditions specified in Sections 4.1, 4.2 and 4.9 have been fulfilled.
(b) Company Secretary's Certificate. The Company shall have delivered
to each Purchaser a certificate, signed on its behalf by its Secretary or
one of its Assistant Secretaries, dated such Closing Day, certifying as to
the resolutions attached thereto and other corporate proceedings relating
to the authorization, execution and delivery of the applicable Notes and
this Agreement.
(c) Guarantor Secretary's Certificates. If such Closing Day is the
Series A Closing Day, each of the Guarantors shall have delivered to each
Purchaser a certificate, signed on its behalf by its Secretary or one of
its Assistant Secretaries, dated the Series A Closing Day, certifying as to
the resolutions attached thereto and other corporate proceedings relating
to the authorization, execution and delivery of the Guaranty Agreement.
7
4.4. Opinions of Counsel.
Each Purchaser shall have received opinions in form and substance
reasonably satisfactory to such Purchaser, dated the date of such Closing
Day, from
(a) Xxxxxx, Xxxx & Xxxxxxxx LLP, counsel for the Company and the
Guarantors, substantially in the form set out in Exhibit 4.4(a)-1 (in the
case of the Series A Closing Day) or Exhibit 4.4(a)-2 (in the case of any
Shelf Notes) and covering such other matters incident to the transactions
contemplated hereby as such Purchaser or its counsel may reasonably request
(and the Company hereby instructs such counsel to deliver such opinion to
such Purchaser), and
(b) Xxxxx X. Xxxxx, Vice President - Legal of the Company and counsel
to the Guarantors, substantially in the form set out in Exhibit 4.4(b)-1
(in the case of the Series A Closing Day) or Exhibit 4.4(b)-2 (in the case
of any Shelf Notes) and covering such other matters incident to the
transactions contemplated hereby as such Purchaser or its counsel may
reasonably request (and the Company hereby instructs such counsel to
deliver such opinion to such Purchaser), and
(c) Xxxxxxx XxXxxxxxx LLP, special counsel to the Purchasers,
substantially in the form set out in Exhibit 4.4(c)-1 (in the case of the
Series A Closing Day) or Exhibit 4.4(c)-2 (in the case of any Shelf Notes)
and covering such other matters incident to the transactions contemplated
hereby as such Purchaser may reasonably request.
4.5. Purchase Permitted By Applicable Law, etc.
On each Closing Day, each Purchaser's purchase of the Notes on such
Closing Day shall (a) be permitted by the laws and regulations of each
jurisdiction to which such Purchaser 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) and (c) not
subject such Purchaser to any tax, penalty or liability under or pursuant
to any applicable law or regulation. If requested by any Purchaser, such
Purchaser shall have received an Officer's Certificate certifying as to
such matters of fact as such Purchaser may reasonably specify to enable
such Purchaser to determine whether such purchase is so permitted.
4.6. Guaranty Agreement.
Each Purchaser shall have received a counterpart of the Guaranty
Agreement, duly executed and delivered by each of the Guarantors,
substantially in the form of Exhibit 4.6(a) (as amended or supplemented
from time to time, the "Guaranty Agreement"), and the Guaranty Agreement
shall be in full force and effect. If such Closing Day is not the Series A
Closing Day, each Purchaser and holder of a Note shall have received a
Confirmation and Reaffirmation of Guaranty in the form of Exhibit 4.7(b)
dated as of such Closing Day.
8
4.7. Payment of Fees.
The Company shall have paid to MetLife and each other Purchaser any
fees due pursuant to or in connection with this Agreement, including the
Structuring Fee due pursuant to Section 2(c)(i), any Rate Lock Delayed
Delivery Fee due pursuant to Section 2(c)(ii), any Issuance Fee due
pursuant to Section 2(c)(iii) and any Delayed Delivery Fee due pursuant to
Section 2(c)(iv). Without limiting the provisions of Section 15.1, the
Company shall also have paid on or before such Closing Day the reasonable
fees, charges and disbursements of the Purchasers' special counsel referred
to in Section 4.4(c) to the extent reflected in a statement of such counsel
rendered to the Company at least one Business Day prior to such Closing
Day.
4.8. Private Placement Numbers.
A Private Placement Number issued by Standard & Poor's CUSIP Service
Bureau (in cooperation with the Securities Valuation Office of the National
Association of Insurance Commissioners) shall have been obtained for the
Notes issued on such Closing Day.
4.9. Changes in Corporate Structure.
Except as specified in Schedule 4.9 or permitted pursuant to this
Agreement, the Company shall not have changed its jurisdiction of
incorporation or been a party to any merger or consolidation and shall not
have succeeded to all or any substantial part of the liabilities of any
other entity, at any time following the date of the most recent financial
statements either referred to in Schedule 5.5. or delivered to the holders
of the Notes pursuant to Section 7.1.
4.10. Proceedings and Documents.
All corporate and other proceedings in connection with the
transactions contemplated by this Agreement and all documents and
instruments incident to such transactions shall be satisfactory to each
Purchaser and its special counsel, and each Purchaser and its special
counsel shall have received all such counterpart originals or certified or
other copies of such documents as such Purchaser or its special counsel may
reasonably request.
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to each Purchaser that:
5.1. Organization; Power and Authority.
The Company is a corporation duly organized, validly existing and in
good standing under the laws of its jurisdiction of incorporation, and is
duly qualified as a foreign corporation and is in good standing in each
jurisdiction in which such qualification is required by law, other than
those jurisdictions as to which the failure to be so qualified or in good
standing could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. The Company has the corporate
power and authority to own or hold under lease the properties it purports
to own or hold under lease, to transact the business it transacts and
proposes to transact, to execute and deliver this Agreement and the Notes
and to perform the provisions hereof and thereof.
9
5.2. Authorization, etc.
The Financing Documents have been duly authorized by all necessary
corporate action on the part of the Company and each of the Guarantors, and
this Agreement constitutes, and upon execution and delivery thereof each
Note and the Guaranty Agreement will constitute, a legal, valid and binding
obligation of each Obligor party thereto, enforceable against each such
Obligor in accordance with its terms, except as may be limited by (a)
applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights generally and
(b) general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law).
5.3. Disclosure.
The Company's Annual Report to Stockholders for the Fiscal Year ended
January 31, 2008, Annual Report on Form 10-K for the Fiscal Year ended
January 31, 2009 and the Company's Proxy Statement dated April 10, 2008,
Quarterly Report on Form 10-Q for the fiscal quarter ended October 31, 2008
and Current Report on Form 8-K dated January 14, 2009, together with any
and all other papers (including, without limitation, the slides presented
with the oral presentation by the Company to one or more representatives of
the Purchasers on January 27, 2009, specifically delivered by the Company
to such Purchaser in anticipation of its purchase of Notes) (collectively
referred to as the "Disclosure Documents"), taken as a whole, fairly
describe, in all material respects, the general nature of the business and
principal properties of the Company and its Subsidiaries as of the Series A
Closing Day. The Financing Documents, the Disclosure Documents, the
documents, certificates or other writings delivered to the Purchasers by or
on behalf of the Company in connection with the transactions contemplated
by the Financing Documents and the financial statements listed in Schedule
5.5 or delivered to the holders of the Notes pursuant to Section 7.1, taken
as a whole, as of the Series A Closing Day do not contain, and as
supplemented or amended with respect to the Closing Day for any Accepted
Notes will not contain, any untrue statement of a material fact or omit to
state any material fact necessary to make the statements herein or therein
not misleading in light of the circumstances under which they were made.
Except as disclosed in the Disclosure Documents or in the financial
statements listed in Schedule 5.5 or delivered to the holders of the Notes
pursuant to Section 7.1 or as expressly disclosed in Schedule 5.3, as of
the Series A Closing Day or, in the case of any Closing Day for any
Accepted Notes as supplemented or amended with respect to such Accepted
Notes, since the end of the Company's most recent fiscal year, there has
been no change in the financial condition, operations, business, properties
or prospects of the Company or any Subsidiary except changes that
individually or in the aggregate could not reasonably be expected to have a
Material Adverse Effect. There is no fact known to the Company that could
reasonably be expected to have a Material Adverse Effect that has not been
set forth herein or in the Disclosure Documents, as supplemented or
amended, delivered or to be delivered to each Purchaser.
5.4. Organization and Ownership of Shares of Subsidiaries; Affiliates.
10
(a) Schedule 5.4 contains (except as noted therein) complete and
correct lists of (i) the Company's Subsidiaries, showing, as to each
Subsidiary, the correct name thereof, the jurisdiction of its organization,
and the percentage of shares of each class of its Capital Stock outstanding
owned by the Company and each other Subsidiary and (ii) the Company's
Affiliates, other than Subsidiaries.
(b) All of the outstanding shares of Capital Stock of each Subsidiary
shown in Schedule 5.4 as being owned by the Company or its Subsidiaries
have been validly issued, are fully paid and nonassessable and are owned by
the Company or another Subsidiary free and clear of any Lien (except as
otherwise disclosed in Schedule 5.4).
(c) Each Subsidiary identified in Schedule 5.4 is a corporation or
other legal entity duly organized, validly existing and in good standing
under the laws of its jurisdiction of organization, and is duly qualified
as a foreign corporation or other legal entity and is in good standing in
each jurisdiction in which such qualification is required by law, other
than those jurisdictions as to which the failure to be so qualified or in
good standing could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. Each such Subsidiary has the
corporate or other power and authority to own or hold under lease the
properties it purports to own or hold under lease, to transact the business
it transacts and proposes to transact, to execute and deliver the Financing
Documents to which it is a party and to perform its obligations thereunder.
(d) No Subsidiary is a party to, or otherwise subject to any legal
restriction or any agreement (other than the agreements listed in Schedule
5.4 and customary limitations imposed by corporate law statutes)
restricting the ability of such Subsidiary to pay dividends out of profits
or make any other similar distributions of profits to the Company or any of
its Subsidiaries that owns outstanding shares of Capital Stock of such
Subsidiary.
5.5. Financial Statements.
The Company has delivered to each Purchaser copies of the consolidated
financial statements of the Company and its Subsidiaries listed in Schedule
5.5. All of said consolidated financial statements (including in each case
the related schedules and notes) fairly present in all material respects
the consolidated financial position of the Company and its Subsidiaries as
of the respective dates specified in such Schedule and the consolidated
results of their operations and cash flows for the respective periods so
specified and have been prepared in accordance with GAAP consistently
applied throughout the periods involved except as set forth in the notes
thereto (subject, in the case of any interim financial statements, to
normal year-end adjustments).
5.6. Compliance with Laws, Other Instruments, etc.
The execution, delivery and performance (i) by the Company of this
Agreement and the Notes, and (ii) by each of the Guarantors of the Guaranty
Agreement, will not:
(a) contravene, result in any breach of, or constitute a default
under, or result in the creation of any Lien in respect of any property of
the Company or any Subsidiary under, any indenture, mortgage, deed of
trust, loan, purchase or credit agreement, lease, corporate charter or
by-laws, or any other agreement or instrument to which the Company or any
Subsidiary is bound or by which the Company or any Subsidiary or any of
their respective properties may be bound or affected,
11
(b) conflict with or result in a breach of any of the terms,
conditions or provisions of any order, judgment, decree, or ruling of any
court, arbitrator or Governmental Authority applicable to the Company or
any Subsidiary, or
(c) violate any provision of any statute or other rule or regulation
of any Governmental Authority applicable to the Company or any Subsidiary.
5.7. Governmental Authorizations, etc.
No consent, approval or authorization of, or registration, filing or
declaration with, any Governmental Authority is required to be obtained by
the Company or any of the Guarantors in connection with the execution,
delivery or performance (a) by the Company of this Agreement or the Notes,
or (b) by each of the Guarantors of the Guaranty Agreement.
5.8. Litigation; Observance of Agreements, Statutes and Orders.
(a) There are no actions, suits or proceedings pending or, to the
knowledge of the Company, threatened against or affecting the Company or
any Subsidiary or any property of the Company or any Subsidiary in any
court or before any arbitrator of any kind or before or by any Governmental
Authority that, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect.
(b) Neither the Company nor any Subsidiary is in default under any
term of any agreement or instrument to which it is a party or by which it
is bound, or any order, judgment, decree or ruling of any court, arbitrator
or Governmental Authority or is in violation of any applicable law,
ordinance, rule or regulation (including, without limitation, Environmental
Laws) of any Governmental Authority, which default or violation,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
5.9. Taxes.
The Company and its Subsidiaries have filed all tax returns that are
required to have been filed in any jurisdiction, and have paid all taxes
shown to be due and payable on such returns and all other taxes and
assessments levied upon them or their properties, assets, income or
franchises, to the extent such taxes and assessments have become due and
payable and before they have become delinquent, except for any taxes and
assessments (a) the amount of which is not individually or in the aggregate
Material or (b) the amount, applicability or validity of which is currently
being contested in good faith by appropriate proceedings and with respect
to which the Company or a Subsidiary, as the case may be, has established
adequate reserves in accordance with GAAP. The Company knows of no basis
for any other tax or assessment that could reasonably be expected to have a
Material Adverse Effect. The charges, accruals and reserves on the books of
the Company and its Subsidiaries in respect of Federal, state or other
taxes for all fiscal periods are adequate. As of the Series A Closing Day,
the Federal income tax liabilities of the Company and its Subsidiaries
subject to United States income taxes have been determined by the Internal
Revenue Service and paid for all fiscal years up to and including the
fiscal year ended January 31, 2008.
5.10. Title to Property; Leases.
12
The Company and its Subsidiaries have good and sufficient title to
their respective properties that individually or in the aggregate are
Material, including all such properties reflected in the most recent
audited balance sheet referred to in Section 5.5 or purported to have been
acquired by the Company or any Subsidiary after said date (except as sold
or otherwise disposed of in the ordinary course of business), in each case
free and clear of Liens prohibited by this Agreement. All leases that
individually or in the aggregate are Material are valid and subsisting and
are in full force and effect in all material respects.
5.11. Licenses, Permits, etc.
(a) The Company and its Subsidiaries own or possess all licenses,
permits, franchises, authorizations, patents, copyrights, service marks,
trademarks and trade names, or rights thereto, that individually or in the
aggregate are Material, without known conflict with the rights of others;
(b) to the best knowledge of the Company, no product or practice of
the Company or any Subsidiary infringes in any material respect any
license, permit, franchise, authorization, patent, copyright, service xxxx,
trademark, trade name or other right owned by any other Person; and
(c) to the best knowledge of the Company, there is no Material
violation by any Person of any right of the Company or any of its
Subsidiaries with respect to any patent, copyright, service xxxx,
trademark, trade name or other right owned or used by the Company or any of
its Subsidiaries.
5.12. Compliance with ERISA.
(a) The Company and each ERISA Affiliate have operated and
administered each Plan in compliance with all applicable laws except for
such instances of noncompliance as have not resulted in and could not
reasonably be expected to result in a Material Adverse Effect. Neither the
Company nor any ERISA Affiliate has incurred any liability pursuant to
Title I or IV of ERISA or the penalty or excise tax provisions of the Code
relating to employee benefit plans (as defined in section 3 of ERISA), and
no event, transaction or condition has occurred or exists that could
reasonably be expected to result in the incurrence of any such liability by
the Company or any ERISA Affiliate, or in the imposition of any Lien on any
of the rights, properties or assets of the Company or any ERISA Affiliate,
in either case pursuant to Title I or IV of ERISA or to such penalty or
excise tax provisions or to section 401(a)(29) or 412 of the Code, other
than such liabilities or Liens as would not be individually or in the
aggregate Material.
(b) The present value of the aggregate benefit liabilities under each
of the Plans (other than Multiemployer Plans), determined as of the end of
such Plan's most recently ended plan year for which audited financial
statements are available on the basis of the actuarial assumptions
specified for funding purposes in such Plan's most recent actuarial
valuation report, and the aggregate current value of the assets of such
Plan allocable to such benefit liabilities, are set forth in Note O to the
Company's audited financial statements included in the Company's Annual
Report on Form 10-K for the most recently completed fiscal year. The term
"benefit liabilities" has the meaning specified in section 4001 of ERISA
and the terms "current value" and "present value" have the meaning
specified in section 3 of ERISA.
13
(c) The Company and the ERISA Affiliates have not incurred withdrawal
liabilities (and are not subject to contingent withdrawal liabilities)
under section 4201 or 4204 of ERISA in respect of Multiemployer Plans that
individually or in the aggregate are Material.
(d) Note O to the Company's audited financial statements included in
the Company's Annual Report on Form 10-K for the most recently completed
fiscal year sets forth the expected postretirement benefit obligations of
the Company and its Subsidiaries determined as of the last day of the
Company's most recently ended fiscal year for which audited financial
statements are available in accordance with Financial Accounting Standards
Board Statement No. 106, without regard to liabilities attributable to
continuation coverage mandated by section 4980B of the Code.
(e) The execution and delivery of the Financing Documents and the
issuance and sale of the Notes hereunder will not involve any transaction
that is subject to the prohibitions of section 406 of ERISA or in
connection with which a tax could be imposed pursuant to section
4975(c)(1)(A)-(D) of the Code. The representation by the Company in the
first sentence of this Section 5.12(e) is made in reliance upon and subject
to the accuracy of each Purchaser's representation in Section 6.2 as to the
Sources used to pay the purchase price of the Notes to be purchased by such
Purchaser.
(f) Schedule 5.12 sets forth all ERISA Affiliates and all "employee
benefit plans" maintained by the Company (or any "affiliate" thereof) or in
respect of which the Notes could constitute an "employer security"
("employee benefit plan" has the meaning specified in section 3 of ERISA,
"affiliate" has the meaning specified in section 407(d) of ERISA and
section V of the Department of Labor Prohibited Transaction Exemption 95-60
(60 FR 35925, July 12, 1995) and "employer security" has the meaning
specified in section 407(d) of ERISA).
(g) All Foreign Pension Plans have been established, operated,
administered and maintained in compliance with all laws, regulations and
orders applicable thereto except for such failures to comply, in the
aggregate for all such failures, that could not reasonably be expected to
have a Material Adverse Effect. All premiums, contributions and any other
amounts required by applicable Foreign Pension Plan documents or applicable
laws have been paid or accrued as required, except for premiums,
contributions and amounts that, in the aggregate for all such obligations,
could not reasonably be expected to have a Material Adverse Effect.
5.13. Private Offering by the Company.
Neither the Company nor anyone acting on its behalf has offered the
Notes 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 Purchasers and, in the case of the Series A Notes, not more
than 5 other Institutional Investors, each of which has been offered the
Notes at a private sale for investment. Neither the Company nor anyone
acting on its behalf has taken, or will take, any action that would subject
the issuance or sale of the Notes to the registration requirements of
section 5 of the Securities Act. For purposes of this Section 5.13 only,
each reference to the Notes shall be deemed to include a reference to the
Guaranty Agreement.
14
5.14. Use of Proceeds; Margin Regulations.
The Company will apply the proceeds of the sale of (a) the Series A
Notes to refinance existing indebtedness and for general corporate purposes
and (b) the Shelf Notes as set forth in the Request for Purchase of such
Shelf Notes. No part of the proceeds from the sale of the Notes hereunder
will be used, directly or indirectly, for the purpose of buying or carrying
any margin stock within the meaning of Regulation U of the Board of
Governors of the Federal Reserve System (12 CFR 221), or for the purpose of
buying or carrying or trading in any securities under such circumstances as
to involve the Company in a violation of Regulation X of said Board (12 CFR
224) or to involve any broker or dealer in a violation of Regulation T of
said Board (12 CFR 220). Margin stock does not constitute more than 25% of
the value of the consolidated assets of the Company and its Subsidiaries
and the Company does not have any present intention that margin stock will
constitute more than 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.
5.15. Existing Indebtedness; Future Liens.
(a) Except as described therein, Schedule 5.15 sets forth a complete
and correct list of all outstanding Indebtedness of the Company and its
Subsidiaries as of the dates specified in such Schedule (and specifying, as
to each such Indebtedness, the collateral, if any, securing such
Indebtedness), since which date there has been no Material change in the
amounts, interest rates, sinking funds, installment payments or maturities
of the Indebtedness of the Company or its Subsidiaries. Neither the Company
nor any Subsidiary is in default and no waiver of default is currently in
effect, in the payment of any principal or interest on any Indebtedness of
the Company or such Subsidiary and no event or condition exists with
respect to any Indebtedness of the Company or any Subsidiary that would
permit (or that with notice or the lapse of time, or both, would permit)
one or more Persons to cause such Indebtedness to become due and payable
before its stated maturity or before its regularly scheduled dates of
payment.
(b) Except as disclosed in Schedule 5.15, neither the Company nor any
Subsidiary has agreed or consented to cause or permit in the future (upon
the happening of a contingency or otherwise) any of its property, whether
now owned or hereafter acquired, to be subject to a Lien not permitted by
Section 10.4.
5.16. Foreign Assets Control Regulations, etc.
(a) Neither the sale of the Notes by the Company hereunder nor its use
of the proceeds thereof will violate the Trading with the Enemy Act, as
amended, or any of the foreign assets control regulations of the United
States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or
any enabling legislation or executive order relating thereto.
(b) Neither the Company nor any of its Subsidiaries has violated the
provisions of United States Executive Order 13224 of September 24, 2001
Blocking Property and Prohibiting Transactions With Persons Who Commit,
Threaten to Commit, or Support Terrorism (Exec. Order No. 13,224, 66 Fed.
Reg. 49,079 (2001)) (the "Anti-Terrorism Order") or the provisions of
Public Law 107-56 (USA Patriot Act).
15
5.17. Status under Certain Statutes.
Neither the Company nor any Subsidiary is subject to regulation under
the Investment Company Act of 1940, as amended, the Public Utility Holding
Company Act of 2005, as amended, the ICC Termination Act of 1995, as
amended, or the Federal Power Act, as amended.
5.18. Environmental Matters.
Neither the Company nor any Subsidiary has knowledge of any claim or
has received any notice of any claim, and no proceeding has been instituted
raising any claim against the Company or any of its Subsidiaries or any of
their respective real properties now or formerly owned, leased or operated
by any of them or other assets, alleging any damage to the environment or
violation of any Environmental Laws, except, in each case, such as could
not reasonably be expected to result in a Material Adverse Effect. Except
as otherwise disclosed to each Purchaser in writing,
(a) neither the Company nor any Subsidiary has knowledge of any facts
which would give rise to any claim, public or private, of violation of
Environmental Laws or damage to the environment emanating from, occurring
on or in any way related to real properties now or formerly owned, leased
or operated by any of them or to other assets or their use, except, in each
case, such as could not reasonably be expected to result in a Material
Adverse Effect;
(b) neither the Company nor any of its Subsidiaries has stored any
Hazardous Materials on real properties now or formerly owned, leased or
operated by any of them or disposed of any Hazardous Materials in a manner
contrary to any Environmental Laws in each case in any manner that could
reasonably be expected to result in a Material Adverse Effect; and
(c) all buildings on all real properties now owned, leased or operated
by the Company or any of its Subsidiaries are in compliance with applicable
Environmental Laws, except where failure to comply could not reasonably be
expected to result in a Material Adverse Effect.
6. REPRESENTATIONS OF THE PURCHASERS.
Each Purchaser represents as follows:
6.1. Purchase for Investment.
Each Purchaser severally represents that it is purchasing the Notes
for its own account or for one or more separate accounts maintained by such
Purchaser 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 Purchaser's property or their property shall at all times be within
such Purchaser's or their control. Such Purchaser understands that the
Notes have not been registered under the Securities Act and may be resold
only if registered pursuant to the provisions of the Securities Act or if
an exemption from registration is available, except under circumstances
where neither such registration nor such an exemption is required by law,
and that the Company is not required to register the Notes.
16
6.2. Source of Funds.
Each Purchaser severally represents that at least one of the following
statements is an accurate representation as to each source of funds (a
"Source") to be used by such Purchaser to pay the purchase price of the
Notes to be purchased by such Purchaser hereunder:
(a) the Source is an "insurance company general account" as defined in
United States Department of Labor Prohibited Transaction Exemption ("PTE")
95-60 (60 FR 35925, July 12, 1995) and in respect thereof such Purchaser
represents that there is no "employee benefit plan" (as defined in section
3(3) of ERISA and section 4975(e)(1) of the Code, treating as a single plan
all plans maintained by the same employer or employee organization or
affiliate thereof) with respect to which the amount of the general account
reserves and liabilities of all contracts held by or on behalf of such plan
exceeds 10% of the total reserves and liabilities of such general account
(exclusive of separate account liabilities) plus surplus, as set forth in
the National Association of Insurance Commissioners' Annual Statement filed
with such Purchaser's state of domicile; or
(b) if any Purchaser is an insurance company, the Source does not
include assets allocated to any separate account maintained by such
Purchaser in which any employee benefit plan (or its related trust) has any
interest, other than a separate account that is maintained solely in
connection with such Purchaser's fixed contractual obligations under which
the amounts payable, or credited, to such plan and to any participant or
beneficiary of such plan (including any annuitant) are not affected in any
manner by the investment performance of the separate account; or
(c) the Source is either (i) an insurance company pooled separate
account, within the meaning of PTE 90-1 (issued January 29, 1990), or (ii)
a bank collective investment fund, within the meaning of the PTE 91-38
(issued July 12, 1991) and, except as such Purchaser has disclosed to the
Company in writing pursuant to this paragraph (c), no employee benefit plan
or group of plans maintained by the same employer or employee organization
beneficially owns more than 10% of all assets allocated to such pooled
separate account or collective investment fund; or
(d) the Source constitutes assets of an "investment fund" (within the
meaning of part V of PTE 84-14 (the "QPAM Exemption")) managed by a
"qualified professional asset manager" or "QPAM" (within the meaning of
part V of the QPAM Exemption), no employee benefit plan's assets that are
included in such investment fund, when combined with the assets of all
other employee benefit plans established or maintained by the same employer
or by an affiliate (within the meaning of section V(c)(1) of the QPAM
Exemption) of such employer or by the same employee organization and
managed by such QPAM, exceed 20% of the total client assets managed by such
QPAM, the conditions of part I(c) and (g) of the QPAM Exemption are
satisfied, neither the QPAM nor a person controlling or controlled by the
QPAM (applying the definition of "control" in section V(e) of the QPAM
Exemption) owns a 5% or more interest in the Company and
(i) the identity of such QPAM and
17
(ii) the names of all employee benefit plans whose assets are included
in such investment fund have been disclosed to the Company in writing
pursuant to this paragraph (d); or
(e) the Source is a governmental plan; or
(f) the Source is one or more employee benefit plans, or a separate
account or trust fund comprised of one or more employee benefit plans, each
of which has been identified to the Company in writing pursuant to this
paragraph (f); or
(g) the Source does not include assets of any employee benefit plan,
other than a plan exempt from the coverage of ERISA.
As used in this Section 6.2, the terms "employee benefit plan", "governmental
plan" and "separate account" shall have the respective meanings assigned to such
terms in section 3 of ERISA.
7. INFORMATION AS TO COMPANY.
7.1. Financial and Business Information.
The Company shall deliver to each holder of Notes that is an
Institutional Investor (and MetLife during the Issuance Period):
(a) Quarterly Statements -- within 60 days after the end of each
quarterly fiscal period in each fiscal year of the Company (other than the
last quarterly fiscal period of each such fiscal year), duplicate copies
of,
(i) a consolidated balance sheet of the Company and its
Subsidiaries as at the end of such quarter, and
(ii) consolidated statements of earnings, stockholders' equity
and cash flows of the Company and its Subsidiaries, for such quarter
and (in the case of the second and third quarters) for the portion of
the fiscal year ending with such quarter, setting forth in each case
in comparative form the figures for the corresponding periods in the
previous fiscal year, all in reasonable detail, prepared in accordance
with GAAP applicable to quarterly financial statements generally, and
certified on behalf of the Company by a Senior Financial Officer as
fairly presenting, in all material respects, the consolidated
financial position of the companies being reported on and their
consolidated results of operations and cash flows, subject to changes
resulting from year-end adjustments, provided that posting on its
official website or delivery within the time period specified above of
copies of the Company's Quarterly Report on Form 10-Q (including
copies of each exhibit filed therewith) prepared in compliance with
the requirements therefor and filed with the Securities and Exchange
Commission shall be deemed to satisfy the requirements of this Section
7.1(a) so long as such Report includes each of the financial
statements (and the comparative historical figures) referred to above,
provided, however, that any such report or document as contemplated by
this Section 7.1(a) which has been posted to the Company's official
website with general access rights for the public shall be deemed to
have been delivered to the holders of Notes as contemplated by this
Section 7.1(a) so long as the Company has provided each holder of
Notes prior notice, by electronic mail to the electronic address
provided by such holder of Notes, of such posting;
18
(b) Annual Statements -- within 120 days after the end of each fiscal
year of the Company, duplicate copies of,
(i) a consolidated balance sheet of the Company and its
Subsidiaries, as at the end of such year, and
(ii) consolidated statements of earnings, stockholders' equity
and cash flows of the Company and its Subsidiaries, for such year,
setting forth in each case in comparative form the figures for the
previous fiscal year, all in reasonable detail, prepared in accordance
with GAAP, and accompanied by
(A) an opinion thereon of independent certified public
accountants of recognized national standing, which opinion shall
state that such financial statements present fairly, in all
material respects, the consolidated financial position of the
companies being reported upon and their consolidated results of
operations and cash flows and have been prepared in conformity
with GAAP, and that the examination of such accountants in
connection with such financial statements has been made in
accordance with generally accepted auditing standards, and that
such audit provides a reasonable basis for such opinion in the
circumstances, and
(B) a certificate of such accountants stating that they have
reviewed this Agreement and stating further whether, in making
their audit, they have become aware of any condition or event
that then constitutes a Default or an Event of Default, and, if
they are aware that any such condition or event then exists,
specifying the nature and period of the existence thereof (it
being understood that such accountants shall not be liable,
directly or indirectly, for any failure to obtain knowledge of
any Default or Event of Default unless such accountants should
have obtained knowledge thereof in making an audit in accordance
with generally accepted auditing standards or did not make such
an audit),
provided that posting on its official website or delivery within the time
period specified above of the Company's Annual Report on Form 10-K
(including copies of each exhibit filed therewith) for such fiscal year
prepared in accordance with the requirements therefor and filed with the
Securities and Exchange Commission, together with the accountant's
certificate described in clause (B) above, shall be deemed to satisfy the
requirements of this Section 7.1(b), so long as such Report includes each
of the financial statements (and the comparative historical figures)
referred to above, provided, however, that any such report or document as
contemplated by this Section 7.1(b) which has been posted to the Company's
official website with general access rights for the public shall be deemed
to have been delivered to the holders of Notes as contemplated by this
Section 7.1(b) so long as the Company has provided each holder of Notes
prior notice, by electronic mail to the electronic address provided by such
holder of Notes, of such posting;
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(c) SEC and Other Reports -- promptly upon their becoming available, one
copy of (i) each financial statement, annual report (including, without
limitation, the Company's annual report to shareholders, if any, prepared
pursuant to Rule 14a-3 under the Exchange Act), notice or proxy statement sent
by the Company or any Subsidiary to public securities holders generally, and
(ii) each regular or periodic report, each registration statement (without
exhibits except as expressly requested by such holder), and each prospectus and
all amendments thereto filed by the Company or any Subsidiary with the
Securities and Exchange Commission and of all press releases and other
statements made available generally by the Company or any Subsidiary to the
public concerning developments that are Material, provided that posting on its
official website of any such report or document shall be deemed to satisfy the
requirements of this Section 7.1(c), provided, however, that any such report or
document as contemplated by this Section 7.1(c) which has been posted to the
Company's official website with general access rights for the public shall be
deemed to have been delivered to the holders of Notes as contemplated by this
Section 7.1(c) so long as the Company has provided each holder of Notes prior
notice, by electronic mail to the electronic address provided by such holder of
Notes, of such posting;
(d) Notice of Default or Event of Default -- promptly, and in any event
within five days after a Responsible Officer becoming aware of the existence of
any Default or Event of Default or that any Person has given any notice or taken
any action with respect to a claimed default hereunder or that any Person has
given any notice or taken any action with respect to a claimed default of the
type referred to in Section 11(f), a written notice specifying the nature and
period of existence thereof and what action the Company is taking or proposes to
take with respect thereto;
(e) ERISA Matters -- promptly, and in any event within five days after a
Responsible Officer becoming aware of any of the following, a written notice
setting forth the nature thereof and the action, if any, that the Company or an
ERISA Affiliate proposes to take with respect thereto:
(i) with respect to any Plan, any reportable event, as defined in
section 4043(c) of ERISA and the regulations thereunder, for which notice
thereof has not been waived pursuant to such regulations as in effect on
the Series A Closing Day; or
(ii) the taking by the PBGC of steps to institute, or the threatening
by the PBGC of the institution of, proceedings under section 4042 of ERISA
for the termination of, or the appointment of a trustee to administer, any
Plan, or the receipt by the Company or any ERISA Affiliate of a notice from
a Multiemployer Plan that such action has been taken by the PBGC with
respect to such Multiemployer Plan; or
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(iii) any event, transaction or condition that could result in the
incurrence of any liability by the Company or any ERISA Affiliate pursuant
to Title I or IV of ERISA or the penalty or excise tax provisions of the
Code relating to employee benefit plans, or in the imposition of any Lien
on any of the rights, properties or assets of the Company or any ERISA
Affiliate pursuant to Title I or IV of ERISA or such penalty or excise tax
provisions, if such liability or Lien, taken together with any other such
liabilities or Liens then existing, could reasonably be expected to have a
Material Adverse Effect;
(f) Notices from Governmental Authority -- promptly, and in any event
within 30 days of receipt thereof, copies of any notice to the Company or any
Subsidiary from any Federal or state Governmental Authority relating to any
order, ruling, statute or other law or regulation that could reasonably be
expected to have a Material Adverse Effect; and
(g) Requested Information --- with reasonable promptness, such other data
and information relating to the business, operations, affairs, financial
condition, assets or properties of the Company or any of its Subsidiaries or
relating to the ability of the Obligors to perform their obligations under the
Financing Documents as from time to time may be reasonably requested by any such
holder of Notes, or such information regarding the Company required to satisfy
the requirements of 17 C.F.R. ss.230.144A, as amended from time to time, in
connection with any contemplated transfer of the Notes.
7.2. Officer's Certificate.
Each set of financial statements delivered to a holder of Notes pursuant to
Section 7.1(a) or Section 7.1(b) hereof shall be accompanied by an Officer's
Certificate signed by a Senior Financial Officer setting forth:
(a) Covenant Compliance -- the information (including detailed
calculations) required in order to establish whether the Company was in
compliance with the requirements of Sections 10.3 through 10.6, inclusive,
during the quarterly or annual period covered by the statements then being
furnished (including with respect to each such Section, where applicable, the
calculations of the maximum or minimum amount, ratio or percentage, as the case
may be, permissible under the terms of such Sections, and the calculation of the
amount, ratio or percentage then in existence); and
(b) Event of Default -- a statement that such officer has reviewed the
relevant terms hereof and has made, or caused to be made, under his or her
supervision, a review of the transactions and conditions of the Company and its
Subsidiaries from the beginning of the quarterly or annual period covered by the
statements then being furnished to the date of the certificate and that such
review has not disclosed the existence during such period of any condition or
event that constitutes a Default or an Event of Default or, if any such
condition or event existed or exists (including, without limitation, any such
event or condition resulting from the failure of the Company or any Subsidiary
to comply with any Environmental Law), specifying the nature and period of
existence thereof and what action the Company shall have taken or proposes to
take with respect thereto.
7.3. Inspection.
The Company shall permit the representatives of each holder of Notes that
is an Institutional Investor:
21
(a) No Default -- if no Default or Event of Default then exists, at the
expense of such holder and upon reasonable prior notice to the Company, to visit
the principal executive office of the Company, to discuss the affairs, finances
and accounts of the Company and its Subsidiaries with the Company's officers,
and (with the consent of the Company, which consent will not be unreasonably
withheld) its independent public accountants, and (with the consent of the
Company, which consent will not be unreasonably withheld) to visit the other
offices and properties of the Company and each Subsidiary, all at such
reasonable times and as often as may be reasonably requested in writing; and
(b) Default -- if a Default or Event of Default then exists, at the expense
of the Company, to visit and inspect any of the offices or properties of the
Company or any Subsidiary, to examine all their respective books of account,
records, reports and other papers, to make copies and extracts therefrom, and to
discuss their respective affairs, finances and accounts with their respective
officers and independent public accountants (and by this provision the Company
authorizes said accountants to discuss the affairs, finances and accounts of the
Company and its Subsidiaries), all at such times and as often as may be
requested.
8. PAYMENT OF THE NOTES.
8.1. Interest Rates.
Interest on the Notes shall accrue on the unpaid principal balance of the
Notes at the rates and shall be computed on the basis as described in the Notes.
Interest shall be due and payable as provided in the Notes.
8.2. Required Principal Prepayments; Payment at Maturity.
(a) Series A Notes Prepayments. There are no required prepayments of
principal in respect of the Series A Notes. The entire principal amount of the
Series A Notes outstanding on April 9, 2018, together with all accrued and
unpaid interest thereon, shall be due and payable on such date.
(b) Shelf Notes Prepayments. Each Series of Shelf Notes shall be subject to
the required prepayments, if any, set forth in the Notes of such Series. The
entire principal amount of each Series of Shelf Notes shall be due and payable
as set forth in the Notes of such Series.
8.3. Optional Prepayments with Make-Whole Amount.
The Company may, at its option, upon notice as provided below, prepay at
any time all, or from time to time any part of, the Notes of each Series (but if
in part, in integral multiples of $100,000 and in an amount not less than
$1,000,000 or such lesser amount as shall then be outstanding), at 100% of the
principal amount so prepaid, together with accrued unpaid interest on such
amount, plus the Make-Whole Amount determined for the prepayment date with
respect to such principal amount. The Company will give each holder of Notes of
a Series to be prepaid written notice of each optional prepayment under this
Section 8.3 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 prepayment date
(which shall be a Business Day), 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 8.4), and the interest to
22
be paid on the prepayment date with respect to such principal amount being
prepaid, and shall be accompanied by an Officer's Certificate signed by a Senior
Financial Officer as to the estimated Make-Whole Amount due in connection with
such prepayment (calculated as if the date of such notice were the date of the
prepayment), setting forth the details of such computation. Two Business Days
prior to such prepayment, the Company shall deliver to each holder of Notes of a
Series to be prepaid an Officer's Certificate signed by a Senior Financial
Officer specifying the calculation of such Make-Whole Amount as of the specified
prepayment date.
8.4. Allocation of Partial Prepayments.
In the case of each partial optional prepayment of any Series of Notes, the
principal amount of the Notes of such Series to be prepaid shall be applied (a)
in the case of the Series A Notes, to the payment due at maturity and (b) in the
case of any other Series of Notes, as provided in the Confirmation of Acceptance
for such Series of Notes and, if not so provided, the required payments on such
Notes in inverse order of maturity. In the case of each partial optional or
required prepayment of the Notes of any Series, the principal amount of the
Notes of such Series to be prepaid shall be allocated among all of the Notes of
such Series at the time outstanding in proportion, as nearly as practicable, to
the respective unpaid principal amounts thereof not theretofore called for
prepayment.
8.5. Maturity; Surrender, etc.
In the case of each prepayment of Notes pursuant to this Section 8, the
principal amount of each Note to be prepaid shall mature and become due and
payable on the date fixed for such prepayment, together with interest on such
principal amount accrued to such date and the applicable Make-Whole Amount, if
any. From and after such date, unless the Company shall fail to pay such
principal amount when so due and payable, together with the interest and
Make-Whole Amount, if any, as aforesaid, interest on such principal amount shall
cease to accrue. Any Note paid or prepaid in full shall be surrendered to the
Company and cancelled and shall not be reissued, and no Note shall be issued in
lieu of any prepaid principal amount of any Note.
8.6. No Other Optional Prepayments or Purchase of Notes.
The Company will not, and will not permit any Affiliate to, prepay (whether
directly or indirectly by purchase, redemption or other acquisition) any of the
outstanding Notes except upon the payment or prepayment of the Notes in
accordance with the terms of this Section 8. The Company will promptly cancel
all Notes acquired by it or any Affiliate pursuant to any payment, prepayment or
purchase of Notes pursuant to any provision of this Section 8 and no Notes may
be issued in substitution or exchange for any such Notes.
8.7. Make-Whole Amount.
The term "Make-Whole Amount" means, 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:
23
"Called Principal" means, with respect to any Note, the principal of such
Note that is to be prepaid pursuant to Section 8.3 or has become or is declared
to be immediately due and payable pursuant to Section 12.1, as the context
requires.
"Discounted Value" means, with respect to the Called Principal of any Note,
the amount obtained by discounting all Remaining Scheduled Payments with respect
to such Called Principal from their respective scheduled due dates to the
Settlement Date with respect to such Called Principal, in accordance with
accepted financial practice and at a discount factor (applied on the same
periodic basis as that on which interest on the Notes is payable) equal to the
Reinvestment Yield with respect to such Called Principal.
"Reinvestment Yield" means, with respect to the Called Principal of any
Note, the sum of 0.50% per annum plus the yield to maturity implied by (a) the
yields reported, as of 10:00 A.M. (New York City time) on the second Business
Day preceding the Settlement Date with respect to such Called Principal, on the
display designated as Page "PX1" on the Bloomberg Financial Market Service (or
such other display as may replace Page "PX1" on the Bloomberg Financial Market
Service) for actively traded U.S. Treasury securities having a maturity equal to
the Remaining Average Life of such Called Principal as of such Settlement Date,
or (b) if such yields are not reported as of such time or the yields reported as
of such time are not ascertainable (including by way of interpolation), 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 (i) converting U.S. Treasury
xxxx quotations to bond-equivalent yields in accordance with accepted financial
practice and (ii) interpolating linearly between (A) the actively traded U.S.
Treasury security with the maturity closest to and greater than the Remaining
Average Life and (B) the actively traded U.S. Treasury security with the
maturity closest to and less than the Remaining Average Life.
"Remaining Average Life" means, with respect to any Called Principal, the
number of years (calculated to the nearest one-twelfth year) obtained by
dividing (a) such Called Principal into (b) the sum of the products obtained by
multiplying (i) the principal component of each Remaining Scheduled Payment with
respect to such Called Principal by (ii) the number of years (calculated to the
nearest one-twelfth year) that will elapse between the Settlement Date with
respect to such Called Principal and the scheduled due date of such Remaining
Scheduled Payment.
"Remaining Scheduled Payments" means, with respect to the Called Principal
of any Note, all payments of such Called Principal and interest thereon that
would be due after the Settlement Date with respect to such Called Principal if
no payment of such Called Principal were made prior to its scheduled due date,
provided that if such Settlement Date is not a date on which interest payments
are due to be made under the terms of such 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 8.3 or 12.1.
24
"Settlement Date" means, with respect to the Called Principal of any Note,
the date on which such Called Principal is to be prepaid pursuant to Section 8.3
or has become or is declared to be immediately due and payable pursuant to
Section 12.1, as the context requires.
9. AFFIRMATIVE COVENANTS.
The Company covenants that during the Issuance Period and so long as any of
the Notes are outstanding:
9.1. Compliance with Law.
The Company will and will cause each of its Subsidiaries to comply with all
laws, ordinances or governmental rules or regulations to which each of them is
subject, including, without limitation, Environmental Laws, the Anti-Terrorism
Order and Public Law 107-56 (USA Patriot Act), and will obtain and maintain in
effect all licenses, certificates, permits, franchises and other governmental
authorizations necessary to the ownership of their respective properties or to
the conduct of their respective businesses, in each case to the extent necessary
to ensure that non-compliance with such laws, ordinances or governmental rules
or regulations or failures to obtain or maintain in effect such licenses,
certificates, permits, franchises and other governmental authorizations could
not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
9.2. Insurance.
The Company will and will cause each of its Subsidiaries to maintain, with
financially sound and reputable insurers, insurance with respect to their
respective properties and businesses against such casualties and contingencies,
of such types, on such terms and in such amounts (including deductibles,
co-insurance and self-insurance, if adequate reserves are maintained with
respect thereto) as is customary in the case of entities of established
reputations engaged in the same or a similar business and similarly situated.
9.3. Maintenance of Properties.
The Company will and will cause each of its Subsidiaries to maintain and
keep, or cause to be maintained and kept, their respective properties in good
repair, working order and condition (other than ordinary wear and tear), so that
the business carried on in connection therewith may be properly conducted at all
times, provided that this Section shall not prevent the Company or any
Subsidiary from discontinuing the operation and the maintenance of any of its
properties if the Company has concluded that such discontinuance is desirable in
the conduct of its business and that such discontinuance could not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect.
9.4. Payment of Taxes and Claims.
The Company will and will cause each of its Subsidiaries to file all tax
returns required to be filed in any jurisdiction and to pay and discharge all
taxes shown to be due and payable on such returns and all other taxes,
assessments, governmental charges, or levies imposed on them or any of their
properties, assets, income or franchises, to the extent such taxes, assessments,
charges or levies have become due and payable and before they have become
25
delinquent and all claims for which sums have become due and payable that have
or might become a Lien on properties or assets of the Company or any Subsidiary,
provided that neither the Company nor any Subsidiary need pay any such tax or
assessment or claims if (a) the amount, applicability or validity thereof is
contested by the Company or such Subsidiary on a timely basis in good faith and
in appropriate proceedings, and the Company or a Subsidiary has established
adequate reserves therefor in accordance with GAAP on the books of the Company
or such Subsidiary or (b) the nonpayment of all such taxes, assessments, charges
and levies in the aggregate could not reasonably be expected to have a Material
Adverse Effect.
9.5. Corporate Existence, etc.
Subject to Section 10.5(c), the Company will at all times preserve and keep
in full force and effect its corporate existence. Subject to Sections 10.5 and
10.6, the Company will at all times preserve and keep in full force and effect
the corporate existence of each of its Subsidiaries (unless merged into the
Company or a Subsidiary) and all rights and franchises of the Company and its
Subsidiaries unless, in the good faith judgment of the Company, the termination
of or failure to preserve and keep in full force and effect such corporate
existence, right or franchise could not, individually or in the aggregate, have
a Material Adverse Effect.
9.6. Subsequent Guarantors.
The Company covenants that if at any time after the date of this Agreement
any Subsidiary which is not already a Guarantor at such time, shall be or become
a party to a Guaranty (whether as a borrower or an obligor) of all or any part
of the Indebtedness of the Company or its Subsidiaries under, or in respect of,
the Credit Agreement, the Company will cause each such Subsidiary,
contemporaneously with entering into any such Guaranty (and in any event no
later than 30 days thereafter), to execute and deliver to the holders of the
Notes (a) a Guaranty of the Company's obligations under the Notes and this
Agreement, in substantially the form of the Guaranty Agreement attached as
Exhibit 4.7 to this Agreement to the extent permitted under local law, and (b)
to the extent an opinion of counsel is delivered with respect to such Guaranty
of such Indebtedness under, or in respect of, the Credit Agreement, an opinion
of counsel for such Subsidiary with respect to such Guaranty in substantially
the form of the opinion of counsel so delivered under, or in respect of, the
Credit Agreement.
10. NEGATIVE COVENANTS.
The Company covenants that during the Issuance Period and so long as any of
the Notes are outstanding:
10.1. Transactions with Affiliates.
The Company will not, and will not permit any Subsidiary to, enter into
directly or indirectly any transaction or group of related transactions
(including, without limitation, the purchase, lease, sale or exchange of
properties of any kind or the rendering of any service) with any Affiliate
(other than the Company or another Subsidiary), except pursuant to the
reasonable requirements of the Company's or such Subsidiary's business and upon
fair and reasonable terms no less favorable to the Company or such Subsidiary
than would be obtainable in a comparable arm's-length transaction with a Person
not an Affiliate.
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10.2. Line of Business.
The Company 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 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 Company and its Subsidiaries, taken as a whole, are engaged on the date of
this Agreement as described in the then most recent Annual Report on Form 10-K
filed with the Securities and Exchange Commission, except for vertical,
horizontal or geographical expansion of any such business so engaged in, whether
under the Xxxxxxx & Co. name or any other name. Any such expansion may include,
but shall not be limited to, additional manufacturing of jewelry products,
trading in and processing of diamonds and the acquisition/operation of
additional retail operations under other tradenames.
10.3. Limitation on Debt.
(a) Incurrence of Debt. The Company will not, and will not permit any
Subsidiary to, directly or indirectly, create, incur, assume, guarantee, or
otherwise become directly or indirectly liable with respect to, any Debt, unless
on the date the Company or such Subsidiary becomes liable with respect to any
such Debt and immediately after giving effect thereto and the concurrent
retirement of any other Debt,
(i) no Default or Event of Default would exist,
(ii) Consolidated Total Debt would not exceed 60% of Consolidated
Total Capitalization, and
(iii) the Fixed Charge Coverage Ratio in respect of such Debt at such
time would be greater than or equal to 2.0 to 1.0.
(b) Incurrence of Priority Debt. The Company will not, and will not permit
any Subsidiary to, directly or indirectly, create, incur, assume, guarantee, or
otherwise become directly or indirectly liable with respect to, any Priority
Debt, unless on the date the Company or such Subsidiary becomes liable with
respect to any such Priority Debt and immediately after giving effect thereto
and the concurrent retirement of any other Priority Debt,
(i) no Default or Event of Default would exist; and
(ii) Priority Debt would not exceed 20% of Consolidated Net Worth.
(c) Deemed Incurrence. For the purposes of this Section 10.3, any Person
becoming a Subsidiary after the date hereof shall be deemed, at the time it
becomes a Subsidiary, to have incurred all of its then outstanding Debt, and any
Person extending, renewing or refunding any Debt shall be deemed to have
incurred such Debt at the time of such extension, renewal or refunding.
27
10.4. Liens.
The Company will not, and will not permit any of its Subsidiaries to,
directly or indirectly create, assume, incur or suffer to be created, assumed or
incurred or 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 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 (unless it makes, or
causes to be made, effective provision whereby the Notes will be equally and
ratably secured with any and all other obligations thereby secured, pursuant to
an agreement or agreements reasonably satisfactory to the Required Holders and,
in any such case, the Notes shall have the benefit, to the fullest extent that,
and with such priority as, the holders of the Notes may be entitled under
applicable law, of an equitable Lien on such property), except:
(a) Taxes, etc. -- Liens for taxes, assessments or other governmental
charges that are not yet due and payable or the payment of which is not at
the time required by Section 9.4;
(b) Legal Proceedings -- Liens
(i) arising from judicial attachments and judgments,
(ii) securing appeal bonds, supersedeas bonds, and
(iii) arising in connection with court proceedings (including,
without limitation, surety bonds and letters of credit or any other
instrument serving a similar purpose),
provided that the execution or other enforcement of such Liens is
effectively stayed and the claims secured thereby are being actively
contested in good faith and by appropriate proceedings, and in respect
of which adequate reserves shall have been established on the books of
the Company and its Subsidiaries in accordance with GAAP;
(c) Ordinary Course Liens -- Liens incidental to the normal conduct of
the business of the Company or any Subsidiary or the ownership of their
properties or assets which are not incurred in connection with the
incurrence of Debt and which do not in the aggregate materially impair the
use of such properties in the operation of the business of the Company and
its Subsidiaries taken as a whole or materially impair the value of such
properties for the purpose of such business, including, without limitation,
Liens
(i) in connection with workers' compensation, unemployment
insurance, social security and other like laws,
(ii) to secure (or to obtain letters of credit that secure) the
performance of tenders, statutory obligations, surety and performance
bonds (of a type other than set forth in Section 10.4(b)), bids,
leases (other than Capital Leases), 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,
28
(iii) to secure the claims or demands of materialmen, mechanics,
carriers, warehousemen, vendors, repairmen, landlords, lessors and
other like Persons, arising in the ordinary course of business, and
(iv) in the nature of reservations, exceptions, encroachments,
easements, rights-of-way, covenants, conditions, restrictions, leases
and other similar title exceptions or encumbrances affecting real
property,
provided that any amounts secured by such Liens are not overdue;
(d) (i) Existing Liens -- Liens in existence as of the Series A Closing Day
securing Debt and listed in Schedule 5.15, and
(ii) Renewals -- Liens securing renewals, extensions (as to time) and
refinancings of Debt secured by the Liens listed in Schedule 5.15, provided
that (A) the amount of Debt secured by each such Lien is not increased in
excess of the amount of Debt outstanding on the date of such renewal,
extension or refinancing, (B) none of such Liens is extended to include any
additional property of the Company or any Subsidiary, and (C) immediately
after giving effect thereto, no Default or Event of Default would exist;
(e) Intra-Group Liens -- Liens on property of the Company or any of its
Subsidiaries securing Debt owing to the Company or to any of its Subsidiaries;
provided that any such Lien does not materially and adversely affect the
interests of the holders of the Notes under the Financing Documents;
(f) Purchase Money Liens -- Liens on fixed assets (or any improvement
thereon) or in rights relating thereto, in each case, acquired or constructed by
the Company or any Subsidiary after the Series A Closing Day to secure Debt of
the Company or such Subsidiary incurred in connection with such acquisition or
construction, provided that
(i) no such Lien shall extend to or cover any property other than the
property (or improvement thereon) being acquired or constructed,
(ii) the amount of Debt secured by any such Lien shall not exceed an
amount equal to the lesser of (A) the cost to the Company or such
Subsidiary of the property (or improvement thereon) being acquired or
constructed or (B) the Fair Market Value (as determined in good faith by
the Company) of such property, determined at the time of such acquisition
or at the time of substantial completion of such construction, and
(iii) such Lien shall be created concurrently with or within 120 days
after such acquisition or the substantial completion of such construction;
(g) Acquisition Liens -- Liens existing on property of a Person immediately
prior to its being consolidated with or merged into the Company or a Subsidiary
or its becoming a Subsidiary, or any Lien existing on any property acquired by
the Company or any Subsidiary at the time such property is so acquired (whether
or not the Debt secured thereby shall have been assumed), provided that
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(i) no such Lien shall have been created or assumed in contemplation
of such consolidation or merger or such Person's becoming a Subsidiary or
such acquisition of property,
(ii) 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
(iii) the principal amount of the Debt secured by any such Lien shall
at no time exceed an amount equal to the Fair Market Value (as determined
in good faith by the board of directors of the Company or such Subsidiary)
of such property (or improvement thereon) at the time of such transaction;
(h) Consignment Liens -- Liens incurred in the ordinary course of business
not securing Debt in favor of Persons supplying the Company or any Subsidiary
with precious metals, precious gems or jewelry on a consignment basis, provided
that such Liens cover only the following property of the Company or such
Subsidiary which shall have been supplied by such Persons:
(i) gold and silver bullion, gold and silver granule and other gold,
silver, platinum or precious metals and precious gems or jewelry in
whatever form including all substitutions, replacements and products in
which any gold, silver, platinum or precious metals and precious gems or
jewelry are incorporated or into which gold, silver, platinum or precious
metals and precious gems or jewelry are processed or converted, whether now
or hereafter owned or acquired by the Company or such Subsidiary or in
which the Company or such Subsidiary now or hereafter acquires an interest,
and all proceeds and products of and accessions to the foregoing, and
(ii) all inventory now or hereafter owned by the Company or such
Subsidiary or in which the Company or such Subsidiary now or hereafter
acquires an interest, including all merchandise, returned and repossessed
goods, raw materials, goods in process, finished goods and proceeds
therefor, and all accounts of the Company or such Subsidiary including all
accounts receivable, notes, drafts, acceptances and other forms of
obligations and receivables now owned or hereafter arising from such
inventory sold or otherwise disposed of by the Company or such Subsidiary
and proceeds thereof and all contract rights and proceeds of the foregoing;
and
(i) Other Liens -- Liens securing Debt of the Company or any Subsidiary and
not otherwise permitted by clauses (a) through (h) inclusive, of this Section
10.4 (other than Liens securing Debt under the Credit Agreement), but only to
the extent that the Debt secured by such Lien is, at the time of the incurrence
of such Debt, permitted to be incurred under Section 10.3(b).
10.5. Merger, Consolidation, etc.
The Company will not, and will not permit any Subsidiary to, directly or
indirectly, consolidate with, or merge into, any other Person or permit any
other Person to consolidate with, or merge into, it, or convey, transfer or
lease substantially all of its assets in a single transaction or series of
transactions to any Person, except that
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(a) any Subsidiary (other than a Guarantor) may consolidate with, or merge
into, the Company or another Subsidiary if, immediately after, and after giving
effect to, such transaction, no Default or Event of Default shall exist;
(b) any Subsidiary (other than a Guarantor) may consolidate with, or merge
into, any other Person, or allow any other Person to consolidate with, or merge
into, it, if
(i) in the case of any consolidation or merger in which the successor
or surviving corporation is a Subsidiary, immediately after, and after
giving effect to, such transaction,
(A) no Default or Event of Default would exist, and
(B) the successor or surviving corporation would be permitted to
incur at least $1.00 of additional Debt by the provisions of Section
10.3(a) and at least $1.00 of additional Priority Debt by the
provisions of Section 10.3(b) (in each case, other than Debt owing to
the Company or a Subsidiary), and
(ii) in the case of any consolidation or merger in which the successor
or surviving corporation is not a Subsidiary, such transaction would be
permitted under the provisions of Section 10.6(a)(iii) (deeming such
consolidation or merger to be a Transfer of all of the assets and
liabilities of such Subsidiary) and immediately after, and after giving
effect to, such transaction, no Default or Event of Default would exist;
and
(c) the Company or any Guarantor may consolidate with, or merge into, any
other Person, or permit any other Person to consolidate with, or merge into, it,
if
(i) the successor or surviving corporation (the "Successor
Corporation") shall be a solvent corporation organized under the laws of
any state of the United States of America,
(ii) the Successor Corporation, if not the Company or such Guarantor,
shall have executed and delivered to each holder of any Notes its
assumption of the due and punctual performance and observance of the
obligations of the Company under this Agreement and the Notes, or of such
Guarantor under the Guaranty Agreement, as the case may be, including,
without limitation, all covenants herein and therein contained, and the
Company shall cause to be delivered to each holder of a Note an opinion of
outside counsel (such counsel to be reasonably satisfactory to the Required
Holders) confirming the enforceability of such assumption, and
(iii) immediately after, and after giving effect to, such transaction,
(A) no Default or Event of Default would exist, and
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(B) the Successor Corporation would be permitted to incur at
least $1.00 of additional Debt by the provisions of Section 10.3(a)
and at least $1.00
of additional Priority Debt by the provisions of Section 10.3(b) (in
each case, other than Debt owing to the Company or a Subsidiary).
10.6. Sale of Assets.
(a) Sale of Assets. The Company will not, and will not permit any of its
Subsidiaries to, make any Transfer, provided that the foregoing restriction does
not apply to a Transfer if:
(i) the property that is the subject of such Transfer constitutes
either (A) inventory held for sale, or (B) equipment, fixtures, supplies or
materials no longer required, in the opinion of the Company or such
Subsidiary, in the operation of the business of the Company or such
Subsidiary or that is obsolete, and, in the case of any Transfer described
in clause (A) or clause (B), such Transfer is in the ordinary course of
business (an "Ordinary Course Transfer"); or
(ii) either
(A) such Transfer is from a Subsidiary to the Company or a
Wholly-Owned Subsidiary;
(B) such Transfer is from the Company to a Wholly-Owned
Subsidiary; or
(C) such Transfer is from a Wholly-Owned Subsidiary to the
Company or any other Wholly-Owned Subsidiary;
so long as immediately before and immediately after the consummation
of such transaction, and after giving effect thereto,
(I) no Default or Event of Default exists or would
exist, and
(II) the Company would be permitted to incur at least
$1.00 of additional Debt by the provisions of Section
10.3(a) and at least $1.00 of additional Priority Debt by
the provisions of Section 10.3(b) (in each case other than
Debt owing to the Company or a Subsidiary)
(each such Transfer, collectively with any Ordinary Course Transfers,
"Excluded Transfers"); or
(iii) such Transfer is not an Excluded Transfer and does not involve a
Substantial Portion of the property of the Company and its Subsidiaries, so
long as immediately before and immediately after the consummation of such
transaction, and after giving effect thereto, no Default or Event of
Default exists or would exist.
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(b) Debt Prepayment Applications and Reinvested Transfers.
(i) Notwithstanding the provisions of Section 10.6(a), the
determination of whether a Transfer involves a Substantial Portion of
the property of the Company and its Subsidiaries, as provided in
Section 10.6(a)(iii) and Section 10.6(c)(iii), shall be made without
taking into account the same proportion of the book value attributable
to the property subject to such Transfer as shall be equal to the
proportion (the "Designated Portion") of the Net Asset Sale Proceeds
Amount with respect to such Transfer to be applied to either a Debt
Prepayment Application with respect to such Transfer or the
acquisition of assets of at least equivalent value that are similar to
the assets which were the subject of such Transfer (a "Reinvested
Transfer") within 365 days of the consummation of such Transfer, as
specified in an Officer's Certificate delivered to each holder of
Notes prior to, or contemporaneously with, the consummation of such
Transfer.
(ii) If, notwithstanding the certificate referred to in the
foregoing clause (i), the Company shall fail to apply the entire
amount of the Designated Portion as specified in such certificate
within the period stated in Section 10.6(b)(i), the computation of
whether such Transfer involved a Substantial Portion of the property
of the Company and its Subsidiaries shall be recomputed, as of the
date of such Transfer, by taking into account the same proportion of
the book value attributable to the property subject to such Transfer
as shall be equal to the proportion of the Net Asset Sale Proceeds
Amount actually applied to either a Debt Prepayment Application or a
Reinvested Transfer within such period. If, upon the recomputation
provided for in the preceding sentence, such Transfer involved a
Substantial Portion of the property of the Company and the Restricted
Subsidiaries, an Event of Default shall be deemed to have existed as
of the expiration of such period.
(c) Certain Definitions. The following terms have the following
meanings:
(i) "Debt Prepayment Application" means, with respect to any
Transfer of property by the Company or any Subsidiary, the application
by the Company or such Subsidiary of cash in an amount equal to the
Net Asset Sale Proceeds Amount with respect to such Transfer to pay
Senior Debt of the Company or such Subsidiary (other than Senior Debt
owing to any of the Subsidiaries or any Affiliate and Senior Debt in
respect of any revolving credit or similar facility providing the
Company or such Subsidiary with the right to obtain loans or other
extensions of credit from time to time, except to the extent that in
connection with such payment of Senior Debt the availability of credit
under such credit facility is permanently reduced by an amount not
less than the amount of such proceeds applied to the payment of such
Senior Debt), provided that in the course of making such application
the Company shall offer to prepay each outstanding Note in accordance
with Section 8.3 in a principal amount that equals the Ratable Portion
for such Note. A holder of Notes may accept or reject such offer to
prepay by causing a notice of such acceptance or rejection to be
delivered to the Company at least two Business Days prior to the
prepayment date specified by the Company in such offer. If a holder of
Notes has not responded to such offer by a date which is at least two
Business Days prior to such specified prepayment date, such holder
shall be deemed to have accepted such offer of prepayment. If any
holder of a Note rejects such offer of prepayment, then, for purposes
of the preceding sentence only, the Company nevertheless will be
deemed to have paid Senior Debt in an amount equal to the Ratable
Portion for such Note.
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As used in this definition,
"Ratable Portion" means, for any Note, an amount equal to the
product of
(A) the Net Asset Sale Proceeds Amount being so offered to
be applied to the payment of Senior Debt, multiplied by
(B) a fraction the numerator of which is the outstanding
principal amount of such Note and the denominator of which is the
aggregate outstanding principal amount of Senior Debt of the
Company and its Subsidiaries, after eliminating all offsetting
debits and credits between the Company and its Subsidiaries and
all other items required to be eliminated in the course of the
preparation of consolidated financial statements of the Company
and its Subsidiaries in accordance with GAAP.
(ii) "Disposition Value" means, at any time, with respect to any
Transfer of property,
(A) in the case of property that does not constitute Capital Stock of a
Subsidiary, the book value thereof, valued at the amount taken into
account (or which would be taken into account) in the consolidated
balance sheet of the Company then most recently required to have been
delivered to the holders pursuant to Section 7.1, and
(B) in the case of property that constitutes Capital Stock
of a Subsidiary, an amount equal to that percentage of the book
value of the assets of the Subsidiary that issued such Capital
Stock as is equal to the percentage that the book value of such
Capital Stock represents of the book value of all of the
outstanding Capital Stock of such Subsidiary (assuming, in making
such calculations, that all securities convertible into such
Capital Stock are so converted and giving full effect to all
transactions that would occur or be required in connection with
such conversion), determined as of the date of the balance sheet
referred to in the foregoing clause (A).
(iii) "Substantial Portion" means, at any time, any property subject
to a Transfer if
(A) the Disposition Value of such property, when added to
the Disposition Value of all other property of the Company and
its Subsidiaries that shall have been the subject of a Transfer
(other than an Excluded Transfer and subject, with respect to
both such property and all such other property, to the provisions
of Section 10.6(b)) during the then current fiscal year of the
Company, exceeds an amount equal to 15% of Consolidated Total
Assets as reflected (or as would be reflected) in the
consolidated balance sheet of the Company then most recently
required to have been delivered to the holders pursuant to
Section 7.1, or
34
(B) the Disposition Value of such property, when added to
the Disposition Value of all other property of the Company and
its Subsidiaries that shall have been the subject of a Transfer
(other than an Excluded Transfer and subject, with respect to
both such property and all such other property, to the provisions
of Section 10.6(b)) during the period beginning on the date of
the Series A Closing Day and ending on and including the date of
the consummation of such Transfer, exceeds an amount equal to 30%
of Consolidated Total Assets as reflected (or as would be
reflected) in the consolidated balance sheet of the Company then
most recently required to have been delivered to the holders
pursuant to Section 7.1.
(iv) "Transfer" means, with respect to any Person, any transaction in
which such Person sells, conveys, transfers or leases (as lessor) any of
its property, including, without limitation, Capital Stock of any other
Person, but does not include any such transaction subject to the provisions
of Section 10.5 (other than Section 10.5(b)(ii)).
10.7. Most Favored Lender Status.
(a) If the Company agrees to any addition, amendment, waiver, deletion,
termination or other modification of any affirmative or negative covenant,
default, event of default or comparable provision (however named or designated)
set forth in the Credit Agreement (a "Credit Agreement Modification") which is
more or less restrictive on the Company or any Subsidiary than the provisions
contained in this Agreement, then the Company shall, within five (5) Business
Days, provide a notice to the holders of the Notes in respect of each such
Credit Agreement Modification. Immediately upon the effectiveness of a Credit
Agreement Modification, the terms of such Credit Agreement Modification shall be
automatically incorporated by reference into this Agreement (such Credit
Agreement Modification as so incorporated is herein referred to as an
"Incorporated Provision")), mutatis mutandis, as if set forth fully herein;
provided, that at any time as a Default or Event of Default has occurred and is
continuing, no Credit Agreement Modification which is less restrictive on the
Company or any Subsidiary will be deemed incorporated into this Agreement
without the prior written consent of the Required Holders, which written consent
shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, in
no event shall an Incorporated Provision amend or modify any provision otherwise
set forth herein to make such provision less restrictive as to the Company or
any Subsidiary than the corresponding provision set forth in the 2002 Note
Agreement, as in effect on the Series A Closing Day.
(b) Except as contemplated by Section 10.7(a), no Incorporated Provision
shall be modified unless such Incorporated Provision is amended or waived in
accordance with the provisions of Section 17 and then only to the extent of such
amendment or waiver.
35
(c) In connection with any Credit Agreement Modification, the Company and
the Required Holders agree within 30 days of the written request of either the
Company or the Required Holders, to enter into a formal amendment to this
Agreement, in form and substance satisfactory to the Required Holders, acting
reasonably, to document the applicable amendments to this Agreement arising from
any such Credit Agreement Modification. If any fee, supplemental or additional
interest or other consideration is given to any lender under a Credit Agreement
Modification as consideration for or as an inducement to enter into any Credit
Agreement Modification, the equivalent of such fee, supplemental or additional
interest or other consideration shall be paid to the holders of the Notes with
respect to such Credit Agreement Modification that is incorporated into this
Agreement at the same time as such fee, supplemental or additional interest or
other consideration is paid to such lender. For the avoidance of doubt, the
amount of any payment (whether as fee or interest) to any holder of Notes then
being made shall be deemed equivalent to any similar payment under the Credit
Agreement if such payment to such holder of Notes represents the same percentage
of the then outstanding principal amount of such Notes as the percentage of all
then outstanding Debt under the Credit Agreement represented by the aggregate
amount of such similar payments under the Credit Agreement.
10.8. Specified Formal MFL Amendment.
If (a) any holder of notes of the Company is a party to a note purchase
agreement which contains a provision substantially similar to Section 10.7 of
this Agreement and (b) such holder and the Company enter into a formal amendment
(the "MFL Amendment") of the type contemplated by Section 10.7(c) of this
Agreement which is intended to reflect the terms of the March 2009 Amendment No.
1 to the Credit Agreement, a copy of which has been delivered to each Series A
Purchaser, the Company agrees to enter into an amendment to this Agreement to
incorporate herein any terms provided for in the MFL Amendment which are more
favorable to such holder of notes than the terms set forth in this Agreement.
11. EVENTS OF DEFAULT.
An "Event of Default" shall exist if any of the following conditions or
events shall occur and be continuing:
(a) the Company defaults in the payment of any principal or Make-Whole
Amount, if any, on any Note when the same becomes due and payable, whether at
maturity or at a date fixed for prepayment or by declaration or otherwise; or
(b) the Company defaults in the payment of any interest on any Note for
more than five Business Days after the same becomes due and payable; or
(c) the Company defaults in the performance of or compliance with any term
contained in any of Sections 10.3 through Section 10.6, inclusive, any
Incorporated Provision that amends, or is otherwise of the type set forth in
such Sections 10.3 through 10.6 or is a negative covenant or Section 7.1(d); or
(d) the Company defaults in the performance of or compliance with any term
contained herein (other than those referred to in paragraphs (a), (b) and (c) of
this Section 11) and such default is not remedied within 30 days after the
earlier of (i) a Responsible Officer obtaining actual knowledge of such default
and (ii) the Company receiving written notice of such default from any holder of
a Note (any such written notice to be identified as a "notice of default" and to
refer specifically to this paragraph (d) of Section 11); or
36
(e) any representation or warranty made in writing by or on behalf of the
Company or any Guarantor or by any officer of the Company or any Guarantor in
this Agreement or the Guaranty Agreement or in any writing furnished in
connection with the transactions contemplated hereby proves to have been false
or incorrect in any material respect on the date as of which made; or
(f) (i) the Company or any Subsidiary is in default (as principal or as
guarantor or other surety) in the payment of any principal of or premium or
make-whole amount or interest on any Indebtedness (other than Indebtedness under
this Agreement and the Notes) beyond any period of grace provided with respect
thereto, that individually or together with such other Indebtedness as to which
any such default exists has an aggregate outstanding principal amount of at
least $20,000,000, or
(ii) the Company or any Subsidiary is in default in the performance of
or compliance with any term of any evidence of any Indebtedness (other than
Indebtedness under this Agreement and the Notes), that individually or
together with such other Indebtedness as to which any such default exists
has an aggregate outstanding principal amount of at least $25,000,000, or
of any mortgage, indenture or other agreement relating thereto or any other
condition exists, and as a consequence of such default or condition such
Indebtedness has become, or has been declared (or one or more Persons are
entitled to declare such Indebtedness to be), due and payable before its
stated maturity or before its regularly scheduled dates of payment, or
(iii) as a consequence of the occurrence or continuation of any event
or condition (other than the passage of time or the right of the holder of
Indebtedness to convert such Indebtedness into equity interests), (A) the
Company or any Subsidiary has become obligated to purchase or repay
Indebtedness before its regular maturity or before its regularly scheduled
dates of payment in an aggregate outstanding principal amount of at least
$20,000,000, or (B) one or more Persons have the right to require the
Company or any Subsidiary so to purchase or repay such Indebtedness; or
(g) the Company or any Guarantor (i) is generally not paying, or admits in
writing its inability to pay, its debts as they become due, (ii) files, or
consents by answer or otherwise to the filing against it of, a petition for
relief or reorganization or arrangement or any other petition in bankruptcy, for
liquidation or to take advantage of any bankruptcy, insolvency, reorganization,
moratorium or other similar law of any jurisdiction, (iii) makes an assignment
for the benefit of its creditors, (iv) consents to the appointment of a
custodian, receiver, trustee or other officer with similar powers with respect
to it or with respect to any substantial part of its property, (v) is
adjudicated as insolvent or to be liquidated, or (vi) takes corporate action for
the purpose of any of the foregoing; or
37
(h) a court or governmental authority of competent jurisdiction enters an
order appointing, without consent by the Company or any Guarantor, a custodian,
receiver, trustee or other officer with similar powers with respect to the
Company or any Guarantor or with respect to any substantial part of the property
of the Company or any Guarantor, or constituting an order for relief or
approving a petition for relief or reorganization or any other petition in
bankruptcy or for liquidation or to take advantage of any bankruptcy or
insolvency law of any jurisdiction, or ordering the dissolution, winding-up or
liquidation of the Company or any Guarantor, or any such petition shall be filed
against the Company or any Guarantor and such petition shall not be dismissed
within 60 days; or
(i) a final judgment or judgments for the payment of money aggregating in
excess of $25,000,000 (excluding any judgment or judgments to the extent the
Company or any applicable Subsidiary is fully insured and with respect to which
the insurer has assumed responsibility in writing) are rendered against one or
more of the Company and its Subsidiaries and which judgments are not, within 45
days after entry thereof, bonded, discharged or stayed pending appeal, or are
not discharged within 45 days after the expiration of such stay; or
(j) (i) the Guaranty Agreement shall cease to be in full force and effect
or shall be declared by a court or governmental authority of competent
jurisdiction to be void, voidable or unenforceable against any Guarantor, or
(ii) the validity or enforceability of the Guaranty Agreement against
any Guarantor shall be contested by such Guarantor or the Company, or
(iii) any Guarantor or the Company shall deny that such Guarantor has
any further liability or obligation under the Guaranty Agreement; or
(k) If:
(i) any Plan shall fail to satisfy the minimum funding standards of
ERISA or the Code for any plan year or part thereof or a waiver of such
standards or extension of any amortization period is sought or granted
under section 412 of the Code,
(ii) a notice of intent to terminate any Plan shall have been or is
reasonably expected to be filed with the PBGC or the PBGC shall have
instituted proceedings under ERISA section 4042 to terminate or appoint a
trustee to administer any Plan or the PBGC shall have notified the Company
or any ERISA Affiliate that a Plan may become a subject of any such
proceedings,
(iii) the aggregate "amount of unfunded benefit liabilities" (within
the meaning of section 4001(a)(18) of ERISA) under all Plans, determined in
accordance with Title IV of ERISA, shall exceed $25,000,000,
(iv) the Company or any ERISA Affiliate shall have incurred or is
reasonably expected to incur any liability pursuant to Title I or IV of
ERISA or the penalty or excise tax provisions of the Code relating to
employee benefit plans,
(v) the Company or any ERISA Affiliate withdraws from any
Multiemployer Plan, or
38
(vi) the Company or any Subsidiary establishes or amends any employee
welfare benefit plan that provides post-employment welfare benefits in a
manner that would increase the liability of the Company or any Subsidiary
thereunder;
and any such event or events described in clauses (i) through (vi) above,
either individually or together with any other such event or events, could
reasonably be expected to have a Material Adverse Effect.
As used in Section 11(k), the terms "employee benefit plan" and "employee
welfare benefit plan" shall have the respective meanings assigned to such
terms in section 3 of ERISA.
12. REMEDIES ON DEFAULT, ETC.
12.1. Acceleration.
(a) If an Event of Default with respect to the Company described in
paragraph (g) or paragraph (h) of Section 11 (other than an Event of Default
described in clause (i) of paragraph (g) or described in clause (vi) of
paragraph (g) by virtue of the fact that such clause encompasses clause (i) of
paragraph (g)) has occurred, all the Notes then outstanding shall automatically
become immediately due and payable.
(b) If any other Event of Default has occurred and is continuing, any
holder or holders of more than 50% in principal amount of the Notes of any
Series at the time outstanding may at any time at its or their option, by notice
or notices to the Company, declare all the Notes of such Series then outstanding
to be immediately due and payable.
(c) If any Event of Default described in paragraph (a) or (b) of Section 11
has occurred and is continuing, any holder or holders of Notes at the time
outstanding affected by such Event of Default may at any time, at its or their
option, by notice or notices to the Company, declare all the Notes held by it or
them to be immediately due and payable.
Upon any Notes becoming due and payable under this Section 12.1, whether
automatically or by declaration, such Notes will forthwith mature and the entire
unpaid principal amount of such Notes, plus (i) all accrued and unpaid interest
thereon and (ii) the Make-Whole Amount determined in respect of such principal
amount (to the full extent permitted by applicable law), shall all be
immediately due and payable, in each and every case without presentment, demand,
protest or further notice, all of which are hereby waived. The Company
acknowledges, and the parties hereto agree, that each holder of a Note has the
right to maintain its investment in the Notes free from repayment by the Company
(except as herein specifically provided for) and that the provision for payment
of a Make-Whole Amount by the Company in the event that the Notes are prepaid or
are accelerated as a result of an Event of Default, is intended to provide
compensation for the deprivation of such right under such circumstances.
12.2. Other Remedies.
If any Default or Event of Default has occurred and is continuing, and
irrespective of whether any Notes have become or have been declared immediately
due and payable under Section 12.1, the holder of any Note at the time
39
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 in any Financing Document, or
for an injunction against a violation of any of the terms thereof, or in aid of
the exercise of any power granted thereby or by law or otherwise.
12.3. Rescission.
At any time after any Notes of a Series have been declared due and payable
pursuant to clause (b) or clause (c) of Section 12.1, the holders of not less
than 66-2/3% in principal amount of the Notes of such Series then outstanding,
by written notice to the Company, may rescind and annul any such declaration and
its consequences if (a) the Company has paid all overdue interest on such Notes,
all principal of and Make-Whole Amount, if any, due and payable on such Notes
other than by reason of such declaration, and all interest on such overdue
principal and Make-Whole Amount, if any, and (to the extent permitted by
applicable law) any overdue interest in respect of such 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 such Notes. No
rescission and annulment under this Section 12.3 will extend to or affect any
subsequent Event of Default or Default or impair any right consequent thereon.
12.4. No Waivers or Election of Remedies, Expenses, etc.
No course of dealing and no delay on the part of any holder of any Note in
exercising any right, power or remedy shall operate as a waiver thereof or
otherwise prejudice such holder's rights, powers or remedies. No right, power or
remedy conferred by any Financing Document upon any holder of any Note shall be
exclusive of any other right, power or remedy referred to herein or therein or
now or hereafter available at law, in equity, by statute or otherwise. Without
limiting the obligations of the Company under Section 15, the Company will pay
to the holder of each Note on demand such further amount as shall be sufficient
to cover all costs and expenses of such holder incurred in any enforcement or
collection under this Section 12, including, without limitation, reasonable
attorneys' fees, expenses and disbursements.
13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES.
13.1. Registration of Notes.
The Company shall keep at its principal executive office a register for the
registration and registration of transfers of Notes. The name and address of
each holder of one or more Notes, each transfer thereof and the name and address
of each transferee of one or more Notes shall be registered in such register.
Prior to due presentment for registration of transfer, the Person in whose name
any Note shall be registered shall be deemed and treated as the owner and holder
thereof for all purposes hereof, and the Company shall not be affected by any
notice or knowledge to the contrary. The Company and each Purchaser acknowledge
and agree that the Notes are not "negotiable instruments" within the meaning of
ss.3-104 of the Uniform Commercial Code as adopted in the State of New York. The
Company shall give to any holder of a Note that is an Institutional Investor
promptly upon request therefor, a complete and correct copy of the names and
addresses of all registered holders of Notes.
40
13.2. Transfer and Exchange of Notes.
Upon surrender of any Note of any Series at the principal executive office
of the Company for registration of transfer or exchange (and in the case of a
surrender for registration of transfer, duly endorsed or accompanied by a
written instrument of transfer duly executed by the registered holder of such
Note or his attorney duly authorized in writing and accompanied by the address
for notices of each transferee of such Note or part thereof), the Company shall
execute and deliver, at the Company's expense (except as provided below), one or
more new Notes of the same Series (as requested by the holder thereof) in
exchange therefor, in an aggregate principal amount equal to the unpaid
principal amount of the surrendered Note. Each such new Note shall be payable to
such Person as such holder may request and shall be substantially in the form of
Exhibit lA or Exhibit 1B, as the case may be. Each such new Note shall be dated
and bear interest from the date to which interest shall have been paid on the
surrendered Note or dated the date of the surrendered Note if no interest shall
have been paid thereon. The Company may require payment of a sum sufficient to
cover any stamp tax or governmental charge imposed in respect of any such
transfer of Notes. Notes shall not be transferred in denominations of less than
$100,000, provided that if necessary to enable the registration of transfer by a
holder of its entire holding of Notes, one Note may be in a denomination of less
than $100,000. Any transferee, by its acceptance of a Note registered in its
name (or the name of its nominee), shall be deemed to have made the
representation set forth in Section 6.2.
13.3. Replacement of Notes.
Upon receipt by the Company of evidence reasonably satisfactory to it of
the ownership of and the loss, theft, destruction or mutilation of any Note of
any Series (which evidence shall be, in the case of an Institutional Investor,
notice from such Institutional Investor of such ownership and such loss, theft,
destruction or mutilation), and
(a) in the case of loss, theft or destruction, of indemnity reasonably
satisfactory to it (provided that if the holder of such Note is, or is a nominee
for, an original purchaser or a Qualified Institutional Buyer, such Person's own
unsecured agreement of indemnity shall be deemed to be satisfactory), or
(b) in the case of mutilation, upon surrender and cancellation thereof,
the Company at its own expense shall execute and deliver, in lieu thereof, a new
Note of such Series, dated and bearing interest from the date to which interest
shall have been paid on such lost, stolen, destroyed or mutilated Note or dated
the date of such lost, stolen, destroyed or mutilated Note if no interest shall
have been paid thereon.
14. PAYMENTS ON NOTES.
14.1. Place of Payment.
41
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 the Company in such jurisdiction. The
Company may at any time, by notice to each holder of a Note, change the place of
payment of the Notes so long as such place of payment shall be either the
principal office of the Company in such jurisdiction or the principal office of
a bank or trust company in such jurisdiction.
14.2. Home Office Payment.
So long as any Purchaser 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 Company will pay all sums becoming due on such Note for principal,
Make-Whole Amount, if any, and interest by (i) the method and at the address
specified for such purpose below such Purchaser's name in Schedule A (in the
case of any Series A Note) or the Purchaser Schedule attached to the applicable
Confirmation of Acceptance (in the case of any Shelf Notes) or (ii) such other
method or at such other address as such Purchaser shall have from time to time
specified to the Company in writing for such purpose, without the presentation
or surrender of such Note or the making of any notation thereon, except that
upon payment or prepayment in full of any Note, such Purchaser shall promptly
surrender such Note for cancellation to the Company at its principal executive
office or at the place of payment most recently designated by the Company
pursuant to Section 14.1. Prior to any sale or other disposition of any Note
held by any Purchaser or its nominee, such Purchaser will, at its election,
either endorse thereon the amount of principal paid thereon and the last date to
which interest has been paid thereon or surrender such Note to the Company in
exchange for a new Note or Notes pursuant to Section 13.2. The Company will
afford the benefits of this Section 14.2 to any Qualified Institutional Buyer or
Institutional Investor that is the direct or indirect transferee of any Note
purchased by any Purchaser under this Agreement and that has made the same
agreement relating to such Note as such Purchaser has made in this Section 14.2.
15. EXPENSES, ETC.
15.1. Transaction Expenses.
Whether or not the transactions contemplated hereby are consummated, the
Company will pay all costs and expenses (including reasonable attorneys' fees of
one special counsel for all Purchasers and holders of Notes and, if reasonably
required, one local counsel in each jurisdiction where such counsel is so
required) incurred by each Purchaser or holder of a Note in connection with such
transactions and in connection with any amendments, waivers or consents under or
in respect of the Financing Documents (whether or not such amendment, waiver or
consent becomes effective), including, without limitation: (a) the costs and
expenses incurred in enforcing or defending (or determining whether or how to
enforce or defend) any rights under the Financing Documents or in responding to
any subpoena or other legal process or informal investigative demand issued in
connection with the Financing Documents, or by reason of being a holder of any
Note, and (b) the costs and expenses, including financial advisors' fees,
incurred in connection with the insolvency or bankruptcy of the Company or any
Subsidiary or in connection with any work-out or restructuring of the
transactions contemplated by the Financing Documents. The Company will pay, and
will save each Purchaser 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 Purchaser).
42
15.2. Survival.
The obligations of the Company under this Section 15 will survive the
payment or transfer of any Note, the enforcement, amendment or waiver of any
provision of any Financing Document, and the termination of any Financing
Document.
16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT.
All representations and warranties contained in any Financing Document
shall survive the execution and delivery of this Agreement and the Notes and the
purchase or transfer by any Purchaser of any Note or portion thereof or interest
therein, 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 Purchaser or any
other holder of a Note. All statements contained in any certificate or other
instrument or writing delivered by or on behalf of the Company pursuant to any
Financing Document shall be deemed representations and warranties of the Company
under this Agreement. Subject to the preceding sentence, the Financing Documents
embody the entire agreement and understanding between each Purchaser and the
Obligors and supersede all prior agreements and understandings relating to the
subject matter hereof.
17. AMENDMENT AND WAIVER.
17.1. Requirements.
This Agreement and the Notes may be amended, and the observance of any term
hereof or of the Notes may be waived (either retroactively or prospectively),
with (and only with) the written consent of the Company and the Required
Holders, except that (a) no amendment or waiver of any of the provisions of any
of Sections l, 2, 3, 4, 5, 6 and 21, or any defined term (as it is used
therein), will be effective as to a Purchaser unless consented to by such
Purchaser in writing, and (b) no such amendment or waiver may, without the
written consent of the holder of each Note at the time outstanding affected
thereby, (i) subject to the provisions of Section 12 relating to acceleration or
rescission, change the amount or time of any prepayment or payment of principal
of, or reduce the rate or change the time of payment or method of computation of
interest or of the Make-Whole Amount on, the Notes, (ii) change the percentage
of the principal amount of the Notes the holders of which are required to
consent to any such amendment or waiver, or (iii) amend any of Sections 8,
11(a), 11(b), 12, 14.2, 17 and 20.
17.2. Solicitation of Holders of Notes.
(a) Solicitation. The Company will provide each holder of the Notes
(irrespective of the amount of Notes then owned by it) with sufficient
information, sufficiently far in advance of the date a decision is required, to
enable such holder to make an informed and considered decision with respect to
any proposed amendment, waiver or consent in respect of any of the provisions
hereof or of the Notes. The Company will deliver executed or true and correct
copies of each amendment, waiver or consent effected pursuant to the provisions
of this Section 17 to each holder of outstanding Notes promptly following the
date on which it is executed and delivered by, or receives the consent or
approval of, the requisite holders of Notes.
43
(b) Payment. The Company will not directly or indirectly pay or cause to be
paid any remuneration, whether by way of supplemental or additional interest,
fee or otherwise, or grant any security, to any holder of Notes as consideration
for or as an inducement to the entering into by any holder of Notes of any
waiver or amendment of any of the terms and provisions hereof unless such
remuneration is concurrently paid, or security is concurrently granted, on the
same terms, ratably to each holder of Notes then outstanding even if such holder
did not consent to such waiver or amendment.
(c) Consent in Contemplation of Transfer. Any consent made pursuant to this
Section 17 by a holder of Notes that has transferred or has agreed to transfer
its Notes to the Company, any Subsidiary or any Affiliate of the Company and has
provided or has agreed to provide such written consent as a condition to such
transfer shall be void and of no force or effect except solely as to such
holder, and any amendments effected or waivers granted or to be effected or
granted that would not have been or would not be so effected or granted but for
such consent (and the consents of all other holders of Notes that were acquired
under the same or similar conditions) shall be void and of no force or effect
except solely as to such holder.
17.3. Binding Effect, etc.
Any amendment or waiver consented to as provided in this Section 17 applies
equally to all holders of Notes and is binding upon them and upon each future
holder of any Note and upon the Company without regard to whether such Note has
been marked to indicate such amendment or waiver. No such amendment or waiver
will extend to or affect any obligation, covenant, agreement, Default or Event
of Default not expressly amended or waived or impair any right consequent
thereon. No course of dealing between the Company and the holder of any Note nor
any delay in exercising any rights hereunder or under any Note shall operate as
a waiver of any rights of any holder of such Note. As used herein, the term
"this Agreement" and references thereto shall mean this Agreement as it may from
time to time be amended or supplemented.
17.4. Notes held by Company, etc.
Solely for the purpose of determining whether the holders of the requisite
percentage of the aggregate principal amount of Notes then outstanding approved
or consented to any amendment, waiver or consent to be given under any of the
Financing Documents, or have directed the taking of any action provided in any
of the Financing Documents to be taken upon the direction of the holders of a
specified percentage of the aggregate principal amount of Notes then
outstanding, Notes directly or indirectly owned by the Company or any of its
Affiliates shall be deemed not to be outstanding.
18. NOTICES.
All notices and communications provided for hereunder shall be in writing
and sent (a) by telecopy if the sender on the same day sends a confirming copy
of such notice by a recognized overnight delivery service (charges prepaid), or
44
(b) by registered or certified mail with return receipt requested (postage
prepaid), or (c) by a recognized overnight delivery service (with charges
prepaid). Any such notice must be sent:
(i) if to a Purchaser or its nominee, to such Purchaser or its nominee
at the address specified for such communications in Schedule A (in the case
of the Series A Purchasers) or the Purchaser Schedule attached to the
applicable Confirmation of Acceptance (in the case of any Shelf Notes), or
at such other address as such Purchaser or its nominee shall have specified
to the Company in writing,
(ii) if to any other holder of any Note, to such holder at such
address as such other holder shall have specified to the Company in
writing, or
(iii) if to the Company, to the Company at its address set forth at
the beginning hereof to the attention of the Chief Financial Officer,
telecopier: (000) 000-0000, or at such other address as the Company shall
have specified to the holder of each Note in writing, with a copy to the
Company's general counsel at the address provided pursuant to this
subsection (iii).
Notices under this Section 18 will be deemed given only when actually received.
19. REPRODUCTION OF DOCUMENTS.
This Agreement and all documents relating hereto, including, without
limitation, (a) consents, waivers and modifications that may hereafter be
executed, (b) documents received by any Purchaser at the applicable Closing
Day (except the Notes themselves), and (c) financial statements,
certificates and other information previously or hereafter furnished to any
Purchaser, may be reproduced by such Purchaser by any photographic,
photostatic, microfilm, microcard, miniature photographic or other similar
process and such Purchaser may destroy any original document so reproduced.
The Company agrees and stipulates that, to the extent permitted by
applicable law, any such reproduction shall be admissible in evidence as
the original itself in any judicial or administrative proceeding (whether
or not the original is in existence and whether or not such reproduction
was made by such Purchaser in the regular course of business) and any
enlargement, facsimile or further reproduction of such reproduction shall
likewise be admissible in evidence. This Section 19 shall not prohibit the
Company or any other holder of Notes from contesting any such reproduction
to the same extent that it could contest the original, or from introducing
evidence to demonstrate the inaccuracy of any such reproduction.
20. CONFIDENTIAL INFORMATION.
For the purposes of this Section 20, "Confidential Information" means
information delivered to any Purchaser by or on behalf of the Company or
any Subsidiary in connection with the transactions contemplated by or
otherwise pursuant to this Agreement that is proprietary in nature and that
was clearly marked or labeled or otherwise adequately identified when
received by such Purchaser as being confidential information of the Company
or such Subsidiary, provided that such term does not include information
that
(a) was publicly known or otherwise known to such Purchaser prior to
the time of such disclosure,
45
(b) subsequently becomes publicly known through no act or omission by
such Purchaser or any person acting on such Purchaser's behalf,
(c) otherwise becomes known to such Purchaser other than through
disclosure by
the Company or any Subsidiary, or
(d) constitutes financial statements delivered to such Purchaser under
Section 7.1 that are otherwise publicly available.
Such Purchaser will maintain the confidentiality of such Confidential
Information in accordance with procedures adopted by such Purchaser in good
faith to protect confidential information of third parties delivered to such
Purchaser, provided that such Purchaser may deliver or disclose Confidential
Information to:
(i) its directors, officers, trustees, employees, agents,
attorneys and affiliates (to the extent such disclosure reasonably
relates to the administration of the investment represented by its
Notes),
(ii) its financial advisors and other professional advisors who
agree to hold confidential the Confidential Information substantially
in accordance with the terms of this Section 20,
(iii) any other holder of any Note,
(iv) any Institutional Investor to which such Purchaser 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),
(v) any Person from which such Purchaser offers to purchase any
security of the Company (if such Person has agreed in writing prior to
its receipt of such Confidential Information to be bound by the
provisions of this Section 20),
(vi) any federal or state regulatory authority having
jurisdiction over such Purchaser,
(vii) the National Association of Insurance Commissioners or any
similar organization, or any nationally recognized rating agency that
requires access to information about such Purchaser's investment
portfolio or
(viii) any other Person to which such delivery or disclosure may
be necessary or appropriate
(A) to effect compliance with any law, rule, regulation or
order applicable to such Purchaser,
(B) in response to any subpoena or other legal process,
46
(C) in connection with any litigation to which such
Purchaser is a party, or
(D) if an Event of Default has occurred and is continuing,
to the extent such Purchaser 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 the Financing Documents.
Each holder of a Note, by its acceptance of a Note, will be deemed to have
agreed to be bound by and to be entitled to the benefits of this Section 20 as
though it were a party to this Agreement. On reasonable request by the Company
in connection with the delivery to any holder of a Note of information required
to be delivered to such holder under this Agreement or requested by such holder
(other than a holder that is a party to this Agreement or its nominee), such
holder will enter into an agreement with the Company embodying the provisions of
this Section 20.
21. SUBSTITUTION OF PURCHASER.
Each Purchaser shall have the right to substitute any one of its Affiliates
as the purchaser of the Notes that such Purchaser has agreed to purchase
hereunder, by written notice to the Company, which notice shall be signed by
both such Purchaser 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.
22. MISCELLANEOUS
22.1. Successors and Assigns.
All covenants and other agreements contained in this Agreement by or on
behalf of any of the parties hereto bind and inure to the benefit of their
respective successors and assigns (including, without limitation, any subsequent
holder of a Note) whether so expressed or not.
22.2. Payments Due on Non-Business Days.
Anything in this Agreement or the Notes to the contrary notwithstanding,
any payment of principal of or Make-Whole Amount or interest on any Note that is
due on a date (including, without limitation, the final maturity date of the
Notes) 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, except in the case of a
payment on the final maturity date which shall include such additional days in
such computation but shall not include the date on which such payment is
received.
22.3. Severability.
Any provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall (to the full extent permitted by law) not invalidate or
render unenforceable such provision in any other jurisdiction.
47
22.4. Construction.
Each covenant contained herein shall be construed (absent express provision
to the contrary) as being independent of each other covenant contained herein,
so that compliance with any one covenant shall not (absent such an express
contrary provision) be deemed to excuse compliance with any other covenant.
Where any provision herein refers to action to be taken by any Person, or which
such Person is prohibited from taking, such provision shall be applicable
whether such action is taken directly or indirectly by such Person.
22.5. Counterparts.
This Agreement may be executed in any number of counterparts, each of which
shall be an original but all of which together shall constitute one instrument.
Each counterpart may consist of a number of copies hereof, each signed by less
than all, but together signed by all, of the parties hereto.
22.6. Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE
RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE OF NEW YORK
EXCLUDING CHOICE-OF-LAW PRINCIPLES OF THE LAW OF SUCH STATE THAT WOULD REQUIRE
THE APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN SUCH STATE.
[Remainder of page intentionally left blank. Next page is signature page.]
48
Very truly yours,
XXXXXXX & CO.
By ___________________________
Name:
Title:
The foregoing is hereby agreed to as of the date thereof:
METROPOLITAN LIFE INSURANCE COMPANY
GENERAL AMERICAN LIFE INSURANCE COMPANY
by Metropolitan Life Insurance Company, its Investment Manager
METLIFE REINSURANCE COMPANY OF VERMONT
by Metropolitan Life Insurance Company, its Investment Manager
By:_________________________________________
Name:
Title:
SCHEDULE B
DEFINED TERMS
-------------
As used herein, the following terms have the respective meanings set forth
below or set forth in the Section hereof following such term:
"2002 Note Agreement" means that certain Note Purchase Agreement dated as
of July 18, 2002, by and among Xxxxxxx & Co., a Delaware corporation, and the
purchasers that are parties thereto, as amended, restated or otherwise modified
from time to time.
"2008 Restructuring Charges" means the following charges recorded by the
Company for the fiscal quarter ended January 31, 2009 in its financial
statements delivered pursuant to Sections 7.1(a) or 7.1(b):
(a) Staff restructuring charges of not more than $97,838,611;
(b) Iridesse product channel closedown charges of not more than
$7,548,519;
(c) Yellowknife, NWT, Canada closedown charges of not more than
$3,381,900; and
(d) Target Resources plc loan impairment charges of not more than
$12,373,077.
"Acceptance" is defined in Section 2(b)(v).
"Acceptance Day" is defined in Section 2(b)(v).
"Accepted Note" is defined in Section 2(b)(v).
"Acceptance Window" means, with respect to any Quotation, the two minute
period (or such other time period designated by MetLife during which the Company
and MetLife shall be in live communication) immediately following the delivery
of such Quotation.
"Affiliate" means 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; or
(b) (i) any Person beneficially owning or holding, directly or
indirectly, 10% or more of any class of voting or equity interests of the
Company or any Subsidiary, or (ii) any Person of which the 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.
Schedule B
Page 1
As used in this definition, "Control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting securities, by
contract or otherwise. Unless the context otherwise clearly requires, any
reference to an "Affiliate" is a reference to an Affiliate of the Company.
"Agreement, this" is defined in Section 17.3.
"Anti-Terrorism Order" is defined in Section 5.16(b).
"Available Facility Amount" shall have the meaning specified in Section
2(b)(i).
"Business Day" means any day other than a Saturday, a Sunday or a day on
which commercial banks in New York City are required or authorized to be closed.
"Cancellation Date" is defined in Section 2(c)(v).
"Cancellation Fee" is defined in Section 2(c)(v).
"Capital Lease" means 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 Stock" means any class of capital stock, share capital or similar
equity interest of a Person.
"Closing Day" means, with respect to the Series A Notes, the Series A
Closing Day and, with respect to any Accepted Note, the Business Day specified
for the closing of the purchase and sale of such Accepted Note in the
Confirmation of Acceptance with respect to such Accepted Note, provided that (a)
if the Company and the Purchaser which is obligated to purchase such Accepted
Note agree on an earlier Business Day for such closing, the "Closing Day" for
such Accepted Note shall be such earlier Business Day, and (b) if the closing of
the purchase and sale of such Accepted Note is rescheduled pursuant to Section
3(b), the Closing Day for such Accepted Note, for all purposes of this Agreement
except references to "original Closing Day" in Section 2(c)(iv), shall mean the
Rescheduled Closing Day with respect to such Accepted Note.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, and the rules and regulations promulgated thereunder from time to time.
"Company" is defined in the introductory sentence of this Agreement.
"Confidential Information" is defined in Section 20.
"Confirmation of Acceptance" is defined in Section 2(b)(v).
"Consolidated" means the Company and its Subsidiaries on a consolidated
basis in accordance with GAAP.
Schedule B
Page 2
"Consolidated Net Worth" means, at any time,
(a) the sum, without duplication, of (i) the par value (or value
stated on the books of the corporation) of the Capital Stock (but excluding
treasury stock and Capital Stock subscribed and unissued, and any Preferred
Stock that is mandatorily redeemable on or prior to the latest final
maturity of any Series of Notes) of the Company and its Subsidiaries, plus
(ii) the amount of the paid-in capital and retained earnings of the Company
and its Subsidiaries, in each case as such amounts (excluding the effect of
all foreign currency translation adjustments) would be shown on a
consolidated balance sheet of the Company and its Subsidiaries as of such
time prepared in accordance with GAAP, minus
(b) to the extent included in clause (a), all amounts properly
attributable to minority interests, if any, in the stock and surplus of
Subsidiaries.
"Consolidated Total Assets" means, at any time, the total assets of the
Company and its Subsidiaries which would be shown as assets on a consolidated
balance sheet of the 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 stock and surplus of Subsidiaries.
"Consolidated Total Capitalization" means, at any time, the sum of (a)
Consolidated Total Debt at such time plus (b) Consolidated Net Worth at such
time.
"Consolidated Total Debt" means, as of any date of determination, the total
of all Debt of the Company and its Subsidiaries outstanding on such date, after
eliminating all offsetting debits and credits between the Company and its
Subsidiaries and all other items required to be eliminated in the course of the
preparation of consolidated financial statements of the Company and its
Subsidiaries in accordance with GAAP.
"Credit Agreement" means that certain Credit Agreement, dated as of July
20, 2005, by and among the Company, certain Subsidiaries of the Company, the
banks that are parties thereto, and The Bank of New York, as administrative
agent, as amended or renewed from time to time, and each successor loan or
credit agreement constituting the Company's primary bank credit facility, with
the same or different group of lenders and agents, in each case as may be
amended from time to time.
"Debt" means, with respect to any Person, without duplication,
(a) its liabilities for borrowed money and its redemption obligations
in respect of mandatorily redeemable Preferred Stock;
(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);
Schedule B
Page 3
(c) all liabilities appearing on its balance sheet in accordance with
GAAP in respect of Capital Leases;
(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); and
(e) any Guaranty of such Person with respect to liabilities of a type
described in any of clauses (a) through (d) hereof.
Without limitation of the foregoing, Debt of any Person shall include all
obligations of such Person of the character described in clauses (a) through (e)
to the extent such Person or its property remains legally liable in respect
thereof notwithstanding that any such obligation is deemed to be extinguished
under GAAP.
"Debt Prepayment Application" is defined in Section 10.6(c)(i).
"Default" means an event or condition the occurrence or existence of which
would, with the lapse of time or the giving of notice or both, become an Event
of Default.
"Default Rate" means that rate of interest that is the greater of (a) 2.0%
per annum above the rate of interest stated in clause (a) of the first paragraph
of the relevant Series of Notes or (b) 2.0% over the rate of interest publicly
announced from time to time by JPMorgan Chase Bank (or its successor) at its
headquarters as its "base" or "prime" rate.
"Delayed Delivery Fee" is defined in Section 2(c)(iv).
"Designated Portion" is defined in Section 10.6(b)(i).
"Disclosure Documents" are defined in Section 5.3.
"Disposition Value" is defined in Section 10.6(c)(ii).
"EBIT" means, for any period, the net income of the Company and its
Subsidiaries on a Consolidated basis for such period plus each of the following
with respect to the Company and its Subsidiaries on a Consolidated basis to the
extent utilized in determining such net income: (a) Interest Expense and (b)
provision for taxes.
"Environmental Laws" means any and all Federal, state, local, and foreign
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses, agreements or governmental
restrictions relating to pollution and the protection of the environment or the
release of any materials into the environment, including but not limited to
those related to hazardous substances or wastes, air emissions and discharges to
waste or public systems.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the rules and regulations promulgated thereunder
from time to time in effect.
Schedule B
Page 4
"ERISA Affiliate" means any trade or business (whether or not incorporated)
that is treated as a single employer together with the Company under section 414
of the Code.
"Event of Default" is defined in Section 11.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time.
"Excluded Transfer" is defined in Section 10.6(a)(ii).
"Facility" is defined in Section 2(b)(i).
"Fair Market Value" means, at any time and with respect to any property,
the sale value of such property that would be realized in an arm's-length sale
at such time between an informed and willing buyer and an informed and willing
seller (neither being under a compulsion to buy or sell, respectively).
"Financing Documents" means, collectively, this Agreement, the Notes and
the Guaranty Agreement.
"Fixed Charge Coverage Ratio" means, at any time in respect to any Debt
with respect to which the Company or any Subsidiary is becoming liable, the
ratio of (a) (i) EBIT in respect of the period comprised of the four consecutive
fiscal quarters ended immediately prior to such time in respect of which
financial statements have been delivered pursuant to Sections 7.1(a) or 7.1(b)
plus (ii) Rent Expense for such period, plus (iii), if such period includes the
fiscal quarter ended January 31, 2009, the 2008 Restructuring Charges (provided
that this clause (iii) shall be applicable solely for determining compliance
with Section 10.3(a)(iii) and shall not be applicable for any other purpose), to
(b) (i) Rent Expense for such period plus (ii) Interest Expense for such period
(assuming that the entire principal amount of such Debt was incurred on the
first day of such period and remained outstanding at all times during such
period and such Debt accrued interest at the rate as would have been accrued on
such Debt during such period).
"Foreign Pension Plan" means any plan, fund or other similar program
(a) established or maintained outside of the United States of America
by any one or more of the Company or any of its Subsidiaries primarily for
the benefit of the employees (substantially all of whom are aliens not
residing in the United States of America) of the Company or its
Subsidiaries which plan, fund or other similar program provides for
retirement income for such employees or results in a deferral of income for
such employees in contemplation of retirement, and
(b) not otherwise subject to ERISA.
"GAAP" means generally accepted accounting principles as in effect from
time to time in the United States of America.
"Governmental Authority" means
Schedule B
Page 5
(a) the government of
(i) the United States of America or any state or other political
subdivision thereof, or
(ii) any jurisdiction in which the Company or any Subsidiary
conducts all or any part of its business, or that asserts jurisdiction
over any properties of the Company or any Subsidiary, or
(b) any entity exercising executive, legislative, judicial, regulatory
or administrative functions of, or pertaining to, any such government.
"Guarantors" means each of Xxxxxxx and Company, a New York
corporation, Xxxxxxx & Co. International, a Delaware corporation, Xxxxxxx &
Co. Japan Inc., a Delaware corporation, and each other Subsidiary of the
Company which delivers a Guaranty or joinder agreement to the Guaranty
Agreement pursuant to Section 9.6 hereof, together with the respective
successors and assigns of each of the foregoing entities, and "Guarantor"
means any one of such Persons.
"Guaranty" means, with respect to any Person, any obligation (except
the endorsement in the ordinary course of business of negotiable
instruments for deposit or collection) of such Person guaranteeing or in
effect guaranteeing any indebtedness, dividend or other obligation of any
other Person in any manner, whether directly or indirectly, including,
without limitation, obligations incurred through an agreement, contingent
or otherwise, by such Person:
(a) to purchase such indebtedness or obligation or any property
constituting security therefor;
(b) to advance or supply funds (i) for the purchase or payment of
such indebtedness or obligation, or (ii) to maintain any working
capital or other balance sheet condition or any income statement
condition of any other Person or otherwise to advance or make
available funds for the purchase or payment of such indebtedness or
obligation;
(c) to lease properties or to purchase properties or services
primarily for the purpose of assuring the owner of such indebtedness
or obligation of the ability of any other Person to make payment of
the indebtedness or obligation; or
(d) otherwise to assure the owner of such indebtedness or
obligation against loss in respect thereof.
In any computation of the indebtedness or other liabilities of the obligor under
any Guaranty, the indebtedness or other obligations that are the subject of such
Guaranty shall be assumed to be direct obligations of such obligor.
"Guaranty Agreement" is defined in Section 4.6.
"Hazardous Material" means any and all pollutants, toxic or hazardous
wastes or any other substances that might pose a hazard to health or safety, the
removal of which may be required or the generation, manufacture, refining,
production, processing, treatment, storage, handling, transportation, transfer,
use, disposal, release, discharge, spillage, seepage, or filtration of which is
or shall be restricted, prohibited or penalized by any applicable law
(including, without limitation, asbestos, urea formaldehyde foam insulation and
polychlorinated biphenyls).
Schedule B
Page 6
"Hedge Treasury Note(s) " means, with respect to any Accepted Note, the
United States Treasury Note or Notes whose duration (as determined by MetLife)
most closely matches the duration of such Accepted Note.
"holder" means, with respect to any Note, the Person in whose name such
Note is registered in the register maintained by the Company pursuant to Section
13.1.
"Hostile Tender Offer" means, with respect to the use of proceeds of any
Note, any offer to purchase, or any purchase of, shares of capital stock of any
corporation or equity interests in any other entity, or securities convertible
into or representing the beneficial ownership of, or rights to acquire, any such
shares or equity interests, if such shares, equity interests, securities or
rights are of a class which is publicly traded on any securities exchange or in
any over-the-counter market, other than purchases of such shares, equity
interests, securities or rights representing less than 5% of the equity
interests or beneficial ownership of such corporation or other entity for
portfolio investment purposes, and such offer or purchase has not been duly
approved by the board of directors of such corporation or the equivalent
governing body of such other entity prior to the date on which the Company makes
the Request for Purchase of such Note.
"Incorporated Provision" is defined in Section 10.7(a).
"Indebtedness" means, with respect to any Person, without duplication,
(a) its liabilities for borrowed money and its redemption obligations
in respect of mandatorily redeemable Preferred Stock;
(b) its liabilities for the deferred purchase price of property
acquired by such Person (excluding accounts payable arising in the ordinary
course of business but including all liabilities created or arising under
any conditional sale or other title retention agreement with respect to any
such property);
(c) all liabilities appearing on its balance sheet in accordance with
GAAP in respect of Capital Leases;
(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) all its liabilities in respect of letters of credit or instruments
serving a similar function issued or accepted for its account by banks and
other financial institutions (whether or not representing obligations for
borrowed money);
(f) Swaps of such Person; and
Schedule B
Page 7
(g) any Guaranty of such Person with respect to liabilities of a type
described in any of clauses (a) through (f) hereof.
Without limitation of the foregoing, Indebtedness of any Person shall include
all obligations of such Person of the character described in clauses (a) through
(g) to the extent such Person or its property remains legally liable in respect
thereof notwithstanding that any such obligation is deemed to be extinguished
under GAAP.
"Institutional Investor" means (a) any original purchaser of a Note, (b)
any holder of a Note holding more than 5% of the aggregate principal amount of
the Notes then outstanding, and (c) any bank, trust company, savings and loan
association or other financial institution, any pension plan, any investment
company, any insurance company, any broker or dealer, or any other similar
financial institution or entity, regardless of legal form.
"Interest Expense" means, for any period, the interest expense of the
Company and its Subsidiaries on a Consolidated basis in respect of such period.
"Issuance Fee" is defined in Section 2(c)(iii).
"Issuance Period" is defined in Section 2(b)(ii).
"Lien" means, with respect to any Person, any mortgage, lien, pledge,
charge, security interest or other encumbrance, or any interest or title of any
vendor, lessor, lender or other secured party to or of such Person under any
conditional sale or other title retention agreement or Capital Lease, upon or
with respect to any property or asset of such Person (including in the case of
stock, stockholder agreements, voting trust agreements and all similar
arrangements).
"Make-Whole Amount" is defined in Section 8.7.
"Material" means material in relation to the business, operations, affairs,
financial condition, assets, properties or prospects of the Company and its
Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect on (a) the
business, operations, affairs, financial condition, assets or properties of the
Company and its Subsidiaries taken as a whole, or (b) the ability of the
Obligors to perform their obligations under the Financing Documents, or (c) the
validity or enforceability of any of the Financing Documents.
"MetLife" is defined in the introductory sentence of this Agreement.
"MetLife Affiliate" means (a) any corporation or other entity controlling,
controlled by, or under common control with, MetLife and (b) any managed account
or investment fund which is managed by MetLife or a MetLife Affiliate described
in clause (a) of this definition. For purposes of this definition the terms
"control", "controlling" and "controlled" shall mean the ownership, directly or
through subsidiaries, of a majority of a corporation's or other Person's Voting
Stock or equivalent voting securities or interests.
"MFL Amendment" is defined in Section 10.8.
Schedule B
Page 8
"Multiemployer Plan" means any Plan that is a "multiemployer plan" (as such
term is defined in section 4001(a)(3) of ERISA).
"Net Asset Sale Proceeds Amount" means, with respect to any Transfer of any
property by any Person, an amount equal to the difference of
(a) the aggregate amount of the consideration (valued at the Fair
Market Value of such consideration at the time of the consummation of such
Transfer) received by such Person in respect of such Transfer, minus
(b) all ordinary and reasonable out-of-pocket costs and expenses
actually incurred by such Person in connection with such Transfer.
"Notes" is defined in Section 1.
"Obligors" means the Company and each Guarantor, and "Obligor" means any
one of such Persons.
"Officer's Certificate" means a certificate of the Company executed on its
behalf by a Senior Financial Officer or any other officer of the Company whose
responsibilities extend to the subject matter of such certificate.
"On-Going Business" means a distinct operating business, whether operated
as a division of a larger business operation or operated independently, which,
regardless of the form of legal entity, owns and operates the assets and has the
liabilities of such business.
"Ordinary Course Transfer" is defined in Section 10.6(a)(i).
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA or any successor thereto.
"Person" means an individual, partnership, corporation, limited liability
company, association, trust, unincorporated organization, or a government or
agency or political subdivision thereof.
"Plan" means an "employee benefit plan" (as defined in section 3(3) of
ERISA) that is or, within the preceding five years, has been established or
maintained, or to which contributions are or, within the preceding five years,
have been made or required to be made, by the Company or any ERISA Affiliate or
with respect to which the Company or any ERISA Affiliate may have any liability.
"Preferred Stock" means any class of Capital Stock of a Person that is
preferred over any other class of Capital Stock of such Person as to the payment
of dividends or other equity distributions or the payment of any amount upon
liquidation or dissolution of such Person.
"Priority Debt" means, at any time, without duplication, the sum of
Schedule B
Page 9
(a) all then outstanding Debt of the Company or any Guarantor secured by
any Lien on any property of the Company or any Subsidiary, other than any such
Debt secured by Liens permitted by any one or more of clauses (a) through (f),
inclusive, of Section 10.4, plus
(b) all then outstanding Debt of Subsidiaries (other than Debt of any
Guarantor);
provided that Priority Debt shall not include (x) demand Debt of any Subsidiary
owing solely to the Company or another Subsidiary, (y) Debt of any Subsidiary
under any Guaranty by a Subsidiary which is a party to the Guaranty Agreement of
the Debt of the Company or any other Subsidiary or (z) Debt of any Subsidiary
under any of the agreements listed in Schedule 10.3.
"property" or "properties" means, unless otherwise specifically limited,
real or personal property of any kind, tangible or intangible, xxxxxx or
inchoate.
"PTE" is defined in Section 6.2(a).
"Purchasers" means the Series A Purchasers and, with respect to any
Accepted Notes, MetLife and/or any MetLife Affiliate(s) which are purchasing
such Accepted Notes.
"QPAM Exemption" is defined in Section 6.2(d).
"Qualified Institutional Buyer" means any Person who is a "qualified
institutional buyer" within the meaning of such term as set forth in Rule
144A(a)(1) under the Securities Act.
"Quotation" is defined in Section 2(b)(iv).
"Rate Lock Delayed Delivery Fee" means an amount, in respect of any
rescheduled Series A Closing Day, equal to the product of (A) the amount by
which the bond equivalent yield per annum of the Series A Notes exceeds the
yield of an alternative investment selected by MetLife on the date MetLife
receives notice of such delay of the Series A Closing Day having a maturity date
or dates the same as, or closest to, such rescheduled Series A Closing Day, (B)
the principal amount of the Series A Notes, and (C) a fraction the numerator of
which is equal to the number of actual days elapsed from and including April 9,
2009 to but excluding the date of such payment, and the denominator of which is
360. In no case shall the Rate Lock Delayed Delivery Fee be less than zero.
"Reinvested Transfer" is defined in Section 10.6(b)(i).
"Rent Expense" means, for any period, the rent expense of the Company and
its Subsidiaries under all operating leases on a Consolidated basis in respect
of such period.
"Request for Purchase" is defined in Section 2(b)(iii).
"Required Holders" means, at any time, the holder or holders of at least
66-2/3% in principal amount of the Notes or of a Series of Notes, as the context
may require, at the time outstanding (exclusive of Notes then owned by the
Company, any Subsidiary or any of their respective Affiliates).
Schedule B
Page 10
"Rescheduled Closing Day" is defined in Section 3(b).
"Responsible Officer" means any Senior Financial Officer and any other
officer of the Company with responsibility for the administration of the
relevant portion of this Agreement.
"Securities Act" means the Securities Act of 1933, as amended from time
to time.
"Senior Debt" means the Notes and any Debt of the Company or its
Subsidiaries that by its terms is not in any manner subordinated in right of
payment to any other unsecured Debt of the Company or any Subsidiary.
"Senior Financial Officer" means the chief financial officer, senior vice
president-finance, principal accounting officer or treasurer of the Company.
"Series" is defined in Section 1(b).
"Series A Closing Day" is defined in Section 3(a).
"Series A Notes" is defined in Section 1(a).
"Series A Purchaser(s)" means each of the Purchasers identified on the
Purchaser Schedule as purchasers of Series A Notes.
"Shelf Notes" is defined in Section 1(b).
"Source" is defined in Section 6.2.
"Structuring Fee" is defined in Section 2(c)(i).
"Subsidiary" means, as to any Person, any corporation, partnership, limited
liability company, association or other business entity in which such Person or
one or more of its Subsidiaries or such Person and one or more of its
Subsidiaries owns sufficient equity or voting interests to enable it or them (as
a group) ordinarily, in the absence of contingencies, to elect a majority of the
directors (or Persons performing similar functions) of such entity, and any
partnership or joint venture if more than a 50% interest in the profits or
capital thereof is owned by such Person or one or more of its Subsidiaries or
such Person and one or more of its Subsidiaries (unless such partnership or
joint venture can and does ordinarily take major business actions without the
prior approval of such Person or one or more of its Subsidiaries). Unless the
context otherwise clearly requires, any reference to a "Subsidiary" is a
reference to a Subsidiary of the Company.
"Substantial Portion" is defined in Section 10.6(c)(iii).
"Successor Corporation" is defined in Section 10.5(c)(i).
Schedule B
Page 11
"Swaps" means, with respect to any Person, payment obligations with respect
to interest rate swaps, currency swaps and similar obligations obligating such
Person to make payments, whether periodically or upon the happening of a
contingency. For the purposes of this Agreement, the amount of the obligation
under any Swap shall be the amount determined in respect thereof as of the end
of the then most recently ended fiscal quarter of such Person, based on the
assumption that such Swap had terminated at the end of such fiscal quarter, and
in making such determination, if any agreement relating to such Swap provides
for the netting of amounts payable by and to such Person thereunder or if any
such agreement provides for the simultaneous payment of amounts by and to such
Person, then in each such case, the amount of such obligation shall be the net
amount so determined.
"Transfer" is defined in Section 10.6(c)(iv).
"Voting Stock" means, with respect to any corporation, any shares of stock
of such corporation whose holders are entitled under ordinary circumstances to
vote for the election of directors of such corporation (irrespective of whether
at the time stock of any other class or classes shall have or might have voting
power by reason of the happening of any contingency).
"Weighted Average Life to Maturity" means, with respect to the Shelf Notes,
the number of years obtained by dividing (a) the sum of the products obtained by
multiplying (i) the principal component of each scheduled payment with respect
to each Shelf Note by (ii) the number of years (calculated to the nearest
one-twelfth year) that will elapse until the due date of such scheduled
principal payment with respect to such Shelf Note, by (b) the then aggregate
outstanding principal amount of the Shelf Notes.
"Wholly-Owned Subsidiary" means, at any time, any Subsidiary of which (a)
100% of the Capital Stock of such Subsidiary is beneficially owned by any one or
more of the Company and the Company's other Wholly-Owned Subsidiaries at such
time and (b) all of the legal title to such Capital Stock (other than Capital
Stock held by third parties as may be required under the laws of any
jurisdiction where such Subsidiary is organized or conducts business) is held by
one or more of the Company and the Company's other Wholly-Owned Subsidiaries at
such time.
Schedule B
Page 12
SCHEDULE 5.15
EXISTING INDEBTEDNESS AND LIENS
-------------------------------
Excludes intercompany debt, which is consolidated in accordance with GAAP and
does not include any amounts owed to third parties.
1. Indebtedness under the Credit Agreement of up to $450,000,000, which may be
incurred by the Company, and those of its direct and indirect subsidiaries
that are or become parties thereto (unsecured; $66,819,850 outstanding).
2. Guarantees provided by each of the Guarantors of the indebtedness described
in Item 1 above (unsecured).
3. $40,000,000 7.05% Series B Senior Notes due 2010 issued by the Company to
certain purchasers thereof (unsecured; $40,000,000 outstanding).
4. Guarantees provided by each of the Guarantors of the indebtedness described
in Item 3 above (unsecured).
5. $40,000,000 6.15% Series C Senior Notes due 2009 issued by the Company to
certain purchasers thereof (unsecured; $40,000,000 outstanding).
6. Guarantees provided by each of the Guarantors of the indebtedness described
in Item 5 above (unsecured).
7. $60,000,000 6.56% Series D Senior Notes due 2012 issued by the Company to
certain purchasers thereof (unsecured; $60,000,000 outstanding).
8. Guarantees provided by each of the Guarantors of the indebtedness described
in Item 7 above (unsecured).
9. $100,000,000 9.05% Series A Senior Notes due 2015 issued by the Company to
certain purchasers thereof (unsecured; $100,000,000 outstanding).
10. Guarantees provided by each of the Guarantors of the indebtedness described
in Item 9 above (unsecured).
11. $125,000,000 10% Series A Senior Notes due 2017 issued by the Company to
certain purchasers thereof (unsecured; $125,000,000 outstanding).
12. Guarantees provided by each of the Guarantors of the indebtedness described
in Item 11 above (unsecured).
Schedule 5.15
Page 1
13. $125,000,000 10% Series B Senior Notes due 2019 issued by the Company to
certain purchasers thereof (unsecured; $125,000,000 outstanding).
14. Guarantees provided by each of the Guarantors of the indebtedness described
in Item 13 above (unsecured).
15. (Y)5,000,000,000 4.50% Loan due 2011 from American Family Life Assurance
Company of Columbus, Japan Branch (unsecured; (Y)5,000,000,000
outstanding).
16. Guaranty provided by the Company of the indebtedness described in Item 15
above (unsecured).
17. $1,000,000 uncommitted line of credit provided to Xxxxxxx-Brasil Ltda. by
Banco ABN AMRO Real S.A. (unsecured; Zero outstanding).
18. Guaranty provided by the Company of the indebtedness described in Item 17
above (unsecured).
19. $1,000,000 uncommitted line of credit provided to Tiffany-Importacao e
Commercio de Joias Ltda. by Banco ABN AMRO Real S.A. (unsecured; Zero
outstanding).
20. Guaranty provided by the Company of the indebtedness described in Item 19
above (unsecured).
21. Forward exchange yen contracts, including those arising under that certain
Foreign Exchange and Options Master Agreement dated as of March 28, 1997,
by and between The Bank of New York and Xxxxxxx and Company ("FEOMA-1")
(unsecured) and that certain Foreign Exchange and Option Master Agreement
dated as of March 28, 1997, by and between The Bank of New York and Xxxxxxx
& Co. International ("FEOMA-2") (unsecured; Zero outstanding).
22. Guaranty provided by Xxxxxxx & Co. International of the indebtedness
arising under FEOMA-1 (unsecured).
23. Guaranty provided by Xxxxxxx and Company of the indebtedness arising under
FEOMA-2 (unsecured).
24. (Y)15,000,000,000 2.02% First Series Yen Bonds due 2010 issued by Xxxxxxx &
Co. Japan, Inc. to certain purchasers thereof (unsecured; (Y)15,000,000,000
outstanding).
25. Guaranty provided by the Company of the indebtedness described in Item 24
above (unsecured).
26. Master Swap Agreement dated as of July 18, 2002 and the Schedule to the
Master Agreement dated as of July 18, 2002 between Xxxxxxx & Co. and Xxxxxx
Brothers Special Financing Inc.
Schedule 5.15
Page 2
27. Guaranty provided by Xxxxxxx & Co. International of the indebtedness
arising from item 26 above.
28. Guaranty provided by Xxxxxxx & Co. Japan Inc. of the indebtedness arising
from item 26 above.
29. Guaranty provided by Xxxxxxx and Company of the indebtedness arising from
item 26 above.
30. $40,000,000 Interest Rate Swap between Xxxxxx Brothers Special Financing
Inc, and Xxxxxxx & Co. beginning July 18, 2002 and terminating July 18,
2009.
31. $60,000,000 Interest Rate Swap between Xxxxxx Brothers Special Financing
Inc. and Xxxxxxx & Co. beginning July 18, 2002 and terminating July 19,
2012.
32. RMB 71,000,000 Credit Line provided to Xxxxxxx & Co. (Shanghai) Commercial
Company Limited by Mizuho Corporate Bank (China) Ltd. (unsecured; RMB
37,000,000 outstanding).
33. Guaranty provided by the Company of the indebtedness described in Item 32
above (unsecured).
34. ZAR 10,000,000 Overdraft Line provided to Rand Precision Cut Diamonds (PTY)
by Nedbank Limited (unsecured; ZAR Zero outstanding).
35. (euro)600,000 Guarantee Credit Facility provided to Xxxxxxx and Company by
Dresdner Bank AG (unsecured; Euro 600,000 outstanding).
36. Various letters of credit issued to Subsidiaries of the Company
($16,389,000 aggregate outstanding).
*Stated principal amounts outstanding are as of April 6, 2009 unless stated
otherwise.
Schedule 5.15
Page 3
EXHIBIT lA
[FORM OF SERIES A NOTE]
XXXXXXX & CO.
10.0% SERIES A SENIOR NOTE DUE APRIL 9, 2018
No. RA-[__] [__________]
$[________] PPN: 886547 C#3
FOR VALUE RECEIVED, the undersigned, XXXXXXX & CO. (herein called the
"Company"), a corporation organized and existing under the laws of the State of
Delaware, hereby promises to pay to [________________], or registered assigns,
the principal sum of [______________] DOLLARS ($[_________]) on April 9, 2018,
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 10.0% per annum from the date
hereof, payable quarterly on the 9th day of April, July, October and January in
each year, commencing on July 9, 2009, 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 Agreement referred to below), payable quarterly 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 (i) 12.0% or (ii) 2.0% over the rate of
interest publicly announced from time to time by JPMorgan Chase Bank (or its
successor) at its headquarters 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 address shown in the register maintained by the Company for such
purpose or at such other place as the Company shall have designated by written
notice to the holder of this Note as provided in the Note Agreement referred to
below.
This Note is one of a series of the 10.0% Series A Senior Notes due April
9, 2018 (herein called the "Notes") of the Company in the aggregate principal
amount of $50,000,000 issued pursuant to that certain Note Purchase and Private
Shelf Agreement, dated as of April 9, 2009, (as from time to time amended, the
"Note Agreement"), between the Company and the respective purchasers named
therein. 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 Agreement and (ii) to have made the representation set forth in Section 6.2
of the Note Agreement. Capitalized terms used herein, unless otherwise specified
herein, shall have the respective meanings specified in the Note Agreement.
This Note is a registered Note and, as provided in the Note 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,
Exhibit 1A
Page 1
the transferee. Prior to due presentment for registration of transfer, the
Company may treat the Person in whose name this Note is registered as the owner
hereof for the purpose of receiving payment and for all other purposes, and the
Company will not be affected by any notice to the contrary. This Note is not a
"negotiable instrument" within the meaning of ss.3-104 of the Uniform Commercial
Code as adopted in the State of New York.
This Note and the holder hereof are entitled, equally and ratably with the
holders of all other Notes, to the benefits provided by the Guaranty Agreement,
as to which reference is hereby made for the statement thereof.
This Note is subject to optional prepayment, in whole or from time to time
in part, at the times and on the terms specified in the Note Agreement, but not
otherwise.
If an Event of Default, as defined in the Note 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 Agreement.
THIS NOTE AND THE NOTE AGREEMENT ARE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, 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.
XXXXXXX & CO.
By __________________________
Name:
Title:
Exhibit 1A
Page 2
EXHIBIT 1B
[FORM OF SHELF NOTE]
XXXXXXX & CO.
[___]% SERIES [__] SENIOR NOTE DUE [__________]
NO. R[_]-[__] CURRENCY:
ORIGINAL PRINCIPAL AMOUNT:
ORIGINAL ISSUE DATE:
INTEREST RATE:
INTEREST PAYMENT DATES:
FINAL MATURITY DATE:
PRINCIPAL PREPAYMENT DATES AND AMOUNTS:
PPN: [_______]
FOR VALUE RECEIVED, the undersigned, XXXXXXX & CO. (herein called the
"Company"), a corporation organized and existing under the laws of the State of
Delaware, hereby promises to pay to [________________], or registered assigns,
the principal sum of [______________] DOLLARS ($[_________]) on [on the final
maturity date specified above] [, payable on the principal prepayment dates and
in the amounts specified above, and on the final maturity date specified above
in an amount equal to the unpaid balance of the principal hereof,] with interest
(computed on the basis of a 360-day year [of twelve 30-day months] [and actual
days elapsed]) (a) on the unpaid balance thereof at the interest rate per annum
specified above, payable on each interest payment date specified above and on
the final maturity date specified above, commencing with the interest payment
date next succeeding the date hereof, until the principal hereof shall have
become due and payable, and (b) to the extent permitted by law on any overdue
payment (including any overdue prepayment) of principal, any overdue payment of
interest and any overdue payment of any Make-Whole Amount (as defined in the
Note Agreement referred to below), payable [quarterly] [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 (i) [___]% or (ii) 2.0%
over the rate of interest publicly announced from time to time by JPMorgan Chase
Bank (or its successor) at its headquarters 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 address shown in the register maintained by the Company for such
purpose or at such other place as the Company shall have designated by written
notice to the holder of this Note as provided in the Note Agreement referred to
below.
This Note is one of a series of the [___]% Series [__] Senior Notes due
[__________] (herein called the "Notes") of the Company in the aggregate
principal amount of $[__________] issued pursuant to that certain Note Purchase
Exhibit 1B
Page 1
and Private Shelf Agreement, dated as of April 9, 2009, (as from time to time
amended, the "Note Agreement"), between the Company and the respective
purchasers named therein. 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 Agreement and (ii) to have made the
representation set forth in Section 6.2 of the Note Agreement. Capitalized terms
used herein, unless otherwise specified herein, shall have the respective
meanings specified in the Note Agreement.
This Note is a registered Note and, as provided in the Note 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
Company may treat the Person in whose name this Note is registered as the owner
hereof for the purpose of receiving payment and for all other purposes, and the
Company will not be affected by any notice to the contrary. This Note is not a
"negotiable instrument" within the meaning of ss.3-104 of the Uniform Commercial
Code as adopted in the State of New York.
This Note and the holder hereof are entitled, equally and ratably with the
holders of all other Notes, to the benefits provided by the Guaranty Agreement,
as to which reference is hereby made for the statement thereof.
This Note is subject to optional prepayment, in whole or from time to time
in part, at the times and on the terms specified in the Note Agreement, but not
otherwise. The Company will make required prepayments of principal in the
amounts and on the dates as set forth above.
If an Event of Default, as defined in the Note 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 Agreement.
THIS NOTE AND THE NOTE AGREEMENT ARE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, 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.
XXXXXXX & CO.
By __________________________
Name:
Title:
Exhibit 1B
Page 2
1
EXHIBIT 4.6(a)
FORM OF GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT, dated as of April 9, 2009 (as amended or restated
from time to time, this "Guaranty"), by Xxxxxxx and Company, a New York
corporation, Xxxxxxx & Co. International, a Delaware corporation and Xxxxxxx &
Co. Japan Inc., a Delaware corporation (together with their respective
successors and assigns, the "Guarantors") is in favor of each of the Noteholders
(as such term is hereinafter defined).
1. PRELIMINARY STATEMENT
(a) Xxxxxxx & Co., a Delaware corporation (together with its successors and
assigns, the "Company"), has authorized the issuance of its (i) 10.0% Series A
Senior Notes due April 9, 2018 in the aggregate principal amount of Fifty
Million Dollars ($50,000,000) (the "Series A Notes") and (ii) additional senior
promissory notes in the aggregate principal amount of One Hundred Million
Dollars ($100,000,000) (the "Shelf Notes" and together with the Series A Notes,
collectively, and as may be amended or restated from time to time, the "Notes"),
pursuant to a Note Purchase and Private Shelf Agreement, of even date herewith
(as may be amended or restated from time to time, the "Note Purchase
Agreement'), between the Company and, with respect to the Series A Notes, the
respective purchasers listed on Schedule A attached thereto (the "Series A
Purchasers") and, with respect to any Accepted Note, the respective purchasers
listed on the Purchaser Schedule attached to the applicable Confirmation of
Acceptance (the "Shelf Note Purchasers" and, together with the Series A
Purchasers, the "Purchasers").
(b) In order to induce the Purchasers to purchase the Notes from the
Company, the Company has agreed that it will cause each Guarantor to guaranty
unconditionally all of the obligations of the Company to pay principal of and
interest and Make-Whole Amount on the Notes and all other amounts payable by the
Company under the terms of the Notes and the Note Purchase Agreement pursuant to
the terms and provisions hereof.
(c) Each Guarantor and the Company are operated as part of one combined
business group and are directly dependent upon each other for and in connection
with their respective business activities and their respective financial
resources. Each Guarantor will receive direct and indirect economic, financial
and other benefits from the indebtedness incurred under the Note Purchase
Agreement and the Notes by the Company, and under this Guaranty by each
Guarantor, and the incurrence of such indebtedness is in the best interests of
each Guarantor. The Company and each Guarantor have induced the Purchasers to
purchase the Notes based on the consolidated financial condition of each
Guarantor and the Company.
(d) All acts and proceedings required by law and by the certificate of
incorporation and bylaws of each Guarantor necessary to constitute this Guaranty
a valid and binding agreement for the uses and purposes set forth herein in
accordance with its terms have been done and taken, and the execution and
delivery hereof has been in all respects duly authorized.
2. GUARANTY AND OTHER RIGHTS AND UNDERTAKINGS
Exhibit 4.6(a)
Page 1
2.1. Guarantied Obligations.
Each Guarantor, in consideration of the execution and delivery of the Note
Purchase Agreement, the purchase of the Notes by the Purchasers and other
consideration, hereby irrevocably, unconditionally, absolutely, jointly and
severally guarantees, on a continuing basis, to each holder of Notes (each such
holder being referred to herein as a "Noteholder" and, collectively, as the
"Noteholders"), whether such Note has been issued, is being issued on the date
hereof or is hereafter issued in compliance with the provisions of the Note
Purchase Agreement, as and for each Guarantor's own debt, until final and
indefeasible payment has been made in cash
(a) the due and punctual payment of the principal of and accrued and unpaid
interest (including, without limitation, interest which otherwise may cease to
accrue by operation of any insolvency law, rule, regulation or interpretation
thereof) and Make-Whole Amount, if any, and any other fees and expenses, on the
Notes at any time outstanding and the due and punctual payment of all other
amounts payable, and all other indebtedness owing, by the Company to the
Noteholders under the Note Purchase Agreement and the Notes, in each case when
and as the same shall become due and payable, whether at maturity, pursuant to
optional prepayment, by acceleration or otherwise, all in accordance with the
terms and provisions hereof and thereof, including, without limitation, overdue
interest, indemnification payments and all reasonable costs and expenses
incurred by the Noteholders in connection with enforcing any obligations of the
Company under the Note Purchase Agreement and the Notes; it being the intent of
each Guarantor that the guaranty set forth herein shall be a continuing guaranty
of payment and not a guaranty of collection; and
(b) the prompt and complete payment, on demand, of any and all reasonable
costs and expenses incurred by the Noteholders in connection with enforcing the
obligations of such Guarantor hereunder, including, without limitation, the
reasonable fees and disbursements of the Noteholders' special counsel.
All of the obligations set forth in clauses (a) and (b) of this Section 2.1 are
referred to herein as the "Guarantied Obligations" and the guaranty thereof
contained herein is referred to herein as the "Unconditional Guaranty." The
Unconditional Guaranty is a primary, original and immediate obligation of each
Guarantor and is an absolute, unconditional, continuing and irrevocable guaranty
of payment and performance and shall remain in full force and effect until the
full, final and indefeasible payment in cash of the Guarantied Obligations.
2.2. Performance Under the Note Purchase Agreement.
In the event the Company fails to pay, perform. keep, observe, or fulfill
any Guarantied Obligation specified in clause (a) of Section 2.1 in the manner
provided in the Notes or in the Note Purchase Agreement, each Guarantor shall
cause forthwith to be paid the moneys in respect of which such failure has
occurred in accordance with the terms and provisions of the Note Purchase
Agreement and the Notes. In furtherance of the foregoing, if an Event of Default
shall exist, the Guarantied Obligations shall, in the manner and subject to the
limitations provided in the Note Purchase Agreement for the acceleration of the
Notes, forthwith become due and payable without notice, regardless of whether
the acceleration of the Notes shall be stayed, enjoined, delayed or otherwise
prevented.
Exhibit 4.6(a)
Page 2
2.3. Releases.
Each Guarantor consents and agrees that, without notice to or by any
Guarantor and without impairing, releasing, abating, deferring, suspending,
reducing, terminating or otherwise affecting the obligations of each Guarantor
hereunder, each Noteholder, in the manner provided herein, by action or
inaction, may:
(a) compromise or settle, renew or extend the period of duration or the
time for the payment, or discharge the performance of, or may refuse to, or
otherwise not, enforce, or may, by action or inaction, release all or any one or
more parties to, any one or more of the Notes, the Note Purchase Agreement, any
other guaranty thereof or agreement or instrument related thereto or hereto;
(b) assign, sell or transfer, or otherwise dispose of, any one or more of
the Notes;
(c) grant waivers, extensions, consents and other indulgences to the
Company or any other Guarantor or guarantors in respect of any one or more of
the Notes, the Note Purchase Agreement, any other guaranty thereof or any
agreement or instrument related thereto or hereto;
(d) amend, modify or supplement in any manner and at any time (or from time
to time) any one or more of the Notes, the Note Purchase Agreement, any other
guaranty thereof or any agreement or instrument related hereto;
(e) release or substitute any one or more of the endorsers or guarantors of
the Guarantied Obligations whether parties hereto or not; and
(f) sell, exchange, release, surrender or enforce, by action or inaction,
any property at any time pledged or granted as security in respect of the
Guarantied Obligations, whether so pledged or granted by the Company, each
Guarantor or another guarantor of the Company's obligations under the Note
Purchase Agreement, the Notes, any other guaranty thereof or any agreement or
instrument related hereto.
2.4. Waivers.
To the fullest extent permitted by law, each Guarantor does hereby
waive:
(a) any notice of:
(i) acceptance of the Unconditional Guaranty;
(ii) any purchase of the Notes under the Note Purchase Agreement,
or the creation, existence or acquisition of any of the Guarantied
Obligations, or the amount of the Guarantied Obligations, subject to
each Guarantor' rights to make inquiry of each Noteholder to ascertain
the amount of the Guarantied Obligations owing to such Noteholder at
any reasonable time;
Exhibit 4.6(a)
Page 3
(iii) any adverse change in the financial condition of the
Company or any other fact that might increase, expand or affect each
Guarantor's risk hereunder;
(iv) presentment for payment, demand, protest, and notice thereof
as to the Notes or any other instrument;
(v) any Default or Event of Default; and
(vi) any notice or demand of any kind or nature whatsoever to
which each Guarantor might otherwise be entitled (except if such
notice or demand is specifically otherwise required to be given to
such Guarantor pursuant to the terms of this Guaranty);
(b) any right, by statute or otherwise, to require any Noteholder to
institute suit against the Company or any other guarantor or to exhaust the
rights and remedies of any Noteholder against the Company or any other
guarantor, each Guarantor being bound to the payment of each and all Guarantied
Obligations, whether now existing or hereafter accruing, as fully as if such
Guarantied Obligations were directly owing to the Noteholders by each Guarantor;
(c) the benefit of any stay (except in connection with a pending appeal),
valuation, appraisal, redemption or extension law now or at any time hereafter
in force which, but for this waiver, might be applicable to any sale of property
of any Guarantor made under any judgment, order or decree based on this
Guaranty, and each Guarantor covenants that it will not at any time insist upon
or plead, or in any manner claim or take the benefit or advantage of, such law;
and
(d) any defense or objection to the absolute, primary, continuing nature,
or the validity, enforceability or amount of the Unconditional Guaranty,
including, without limitation, any defense based on (and the primary, continuing
nature, and the validity, enforceability and amount of the Unconditional
Guaranty shall be unaffected by), any of the following:
(i) any change in future conditions;
(ii) any change of law;
(iii) any invalidity or irregularity with respect to the issuance
or assumption of any obligations (including, without limitation, the
Note Purchase Agreement, the Notes or any agreement or instrument
related hereto) by the Company or any other Person;
(iv) the execution and delivery of any agreement at any time
hereafter (including, without limitation, the Note Purchase Agreement,
the Notes or any agreement or instrument related hereto) of the
Company or any other Person;
Exhibit 4.6(a)
Page 4
(v) the genuineness, validity, regularity or enforceability of
any of the Guarantied Obligations;
(vi) any default, failure or delay, willful or otherwise, in the
performance of any obligations by the Company or any Guarantor;
(vii) any creditors' rights, bankruptcy, receivership or other
insolvency proceeding of the Company or any Guarantor, or
sequestration or seizure of any property of the Company or any
Guarantor, or any merger, consolidation, reorganization, dissolution,
liquidation or winding up or change in corporate constitution or
corporate identity or loss of corporate identity of the Company or any
Guarantor;
(viii) any disability or other defense of the Company or any
Guarantor to payment and performance of all Guarantied Obligations
other than the defense that the Guarantied Obligations shall have been
fully and finally performed and indefeasibly paid in cash;
(ix) the cessation from any cause whatsoever of the liability of
the Company or any Guarantor in respect of the Guarantied Obligations
(other than as provided herein), and any other defense that any
Guarantor may otherwise have against the Company or any Noteholder;
(x) impossibility or illegality of performance on the part of the
Company or any Guarantor under the Note Purchase Agreement, the Notes
or this Guaranty;
(xi) any change of the circumstances of the Company, any
Guarantor or any other Person, whether or not foreseen or foreseeable,
whether or not imputable to the Company or any Guarantor, including,
without limitation, impossibility of performance through fire,
explosion, accident, labor disturbance, floods, droughts, embargoes,
wars (whether or not declared), civil commotions, acts of God or the
public enemy, delays or failure of suppliers or carriers, inability to
obtain materials, economic or political conditions, or any other
causes affecting performance, or any other force majeure, whether or
not beyond the control of the Company or any Guarantor and whether or
not of the kind hereinbefore specified;
(xii) any attachment, claim, demand, charge, Lien, order,
process, encumbrance or any other happening or event or reason,
similar or dissimilar to the foregoing, or any withholding or
diminution at the source, by reason of any taxes, assessments,
expenses, indebtedness, obligations or liabilities of any character,
foreseen or unforeseen, and whether or not valid, incurred by or
against any Person, or any claims, demands, charges, Liens or
encumbrances of any nature, foreseen or unforeseen, incurred by any
Person, or against any sums payable under the Note Purchase Agreement
or the Notes or any agreement or instrument related hereto so that
such sums would be rendered inadequate or would be unavailable to make
the payment as herein provided;
Exhibit 4.6(a)
Page 5
(xiii) any change in the ownership of the equity securities of
the Company, any Guarantor or any other Person liable in respect of
the Notes; or
(xiv) any other action, happening, event or reason whatsoever
that shall delay, interfere with, hinder or prevent, or in any way
adversely affect, the performance by the Company or any Guarantor of
any of their obligations under the Note Purchase Agreement, the Notes
or this Guaranty.
2.5. Certain Waivers of Subrogation, Reimbursement and Indemnity.
Each Guarantor hereby acknowledges and agrees that:
(a) no Guarantor shall have any right of subrogation, contribution,
reimbursement, or indemnity whatsoever in respect of the Guarantied Obligations,
and no right of recourse to or with respect to any assets or property of the
Company;
(b) no Guarantor will file any claims against the Company or the estate of
the Company in the course of any proceeding under any applicable bankruptcy or
insolvency law in respect of the rights referred to in this Section 2.5; and
(c) each holder of Notes may specifically enforce the provisions of this
Section.
2.6. Indemnity.
As a separate, additional and continuing obligation, each Guarantor
unconditionally and irrevocably undertakes and agrees with the Noteholders that,
should the Guarantied Obligations not be recoverable from any Guarantor for any
reason whatsoever (including, without limitation, by reason of any provision of
the Note Purchase Agreement, the Notes or any other agreement or instrument
executed in connection therewith being or becoming void, unenforceable or
otherwise invalid under any applicable law) then, notwithstanding any knowledge
thereof by any Noteholder at any time, each Guarantor as sole, original and
independent obligor, upon demand by the Noteholders, will make payment of the
Guarantied Obligations to the Noteholders by way of a full indemnity in such
currency and otherwise in such manner as is provided in the Note Purchase
Agreement and the Notes.
2.7. Invalid Payments.
Each Guarantor further agrees that, to the extent the Company makes a
payment or payments to any Noteholder, which payment or payments or any part
thereof are subsequently invalidated, declared to be fraudulent or preferential,
set aside or required, for any of the foregoing reasons or for any other reason,
to be repaid or paid over to a custodian, trustee, receiver or any other party
or officer under any bankruptcy, reorganization, arrangement, insolvency,
readjustment of debt, dissolution or liquidation law of any jurisdiction, state
or federal law, or any common law or equitable cause, then to the extent of such
payment or repayment, the obligation or part thereof intended to be satisfied
shall be revived and continued in full force and effect as if said payment had
not been made and each Guarantor shall be primarily liable for such obligation.
Exhibit 4.6(a)
Page 6
2.8. Marshaling.
Each Guarantor consents and agrees that each Noteholder, and each Person
acting for the benefit of each Noteholder, shall be under no obligation to
marshal any assets in favor of any Guarantor or against or in payment of any or
all of the Guarantied Obligations.
2.9. Subordination, Subrogation, Etc.
Each Guarantor agrees that any present or future indebtedness, obligations
or liabilities of the Company to any Guarantor shall be fully subordinate and
junior in right and priority of payment to any present or future indebtedness,
obligations or liabilities of the Company to the Noteholders. Each Guarantor
waives any right of subrogation to the rights of the Noteholders against the
Company or any other Person obligated for payment of the Guarantied Obligations
and any right of reimbursement, contribution or indemnity whatsoever (including,
without limitation, any such right as against any other guarantor) arising or
accruing out of any payment that any Guarantor may make pursuant to this
Guaranty, and any right of recourse to security for the debts and obligations of
the Company, unless and until the entire amount of the Guarantied Obligations
shall have been paid in full.
2.10. Subordination of Affiliate Obligations.
In the event that, for any reason whatsoever, the Company or a Person
obligated in respect of the Guarantied Obligations pursuant to another guaranty,
is now or hereafter becomes indebted to any Guarantor in any manner (an
"Affiliate Obligation"), such Guarantor agrees that the amount of such Affiliate
Obligation, interest thereon, and all other amounts due with respect thereto,
shall, at all times during the existence of a Default or an Event of Default, be
subordinate as to time of payment and in all other respects to all the
Guarantied Obligations, and that such Guarantor shall not be entitled to enforce
or receive payment thereof until all sums then due and owing to the Noteholders
in respect of the Guarantied Obligations shall have been paid in full, except
that such Guarantor may enforce any obligations in respect of any such Affiliate
Obligation owing to such Guarantor from the Company or such indebted Person so
long as all proceeds in respect of any recovery from such enforcement, to the
extent of all amounts owing with respect to this Guaranty, shall be held by such
Guarantor in trust for the benefit of the Noteholders. If any other payment,
other than pursuant to the immediately preceding sentence, shall have been made
to any Guarantor by the Company or such indebted Person on any such Affiliate
Obligation during any time that a Default or an Event of Default exists and
there are Guarantied Obligations outstanding, such Guarantor shall hold in trust
all such payments, to the extent of all amounts owing with respect to this
Guaranty, for the benefit of the Noteholders.
2.11. Set-off, Counterclaim or Other Deductions.
Except as otherwise required by law, each payment by any Guarantor shall be
made without set-off, counterclaim or other deduction.
Exhibit 4.6(a)
Page 7
2.12. Election by Guarantors to Perform Obligations.
Any election by any Guarantor to pay or otherwise perform any of the
obligations of the Company under the Notes, the Note Purchase Agreement or any
agreement or instrument related hereto shall not release the Company, such
Guarantor or any other guarantor from such obligations or any of such Person's
other obligations under the Notes, the Note Purchase Agreement or any agreement
or instrument related hereto.
2.13. No Election of Remedies by Noteholders.
Each Noteholder shall, individually or collectively, have the right to seek
recourse against any Guarantor to the fullest extent provided for herein for
such Guarantor's obligations under this Guaranty in respect of the Guarantied
Obligations. No election to proceed in one form of action or proceeding, or
against any party, or on any obligation, shall constitute a waiver of such
Noteholder's right to proceed in any other form of action or proceeding or
against other parties unless such Noteholder has expressly waived such right in
writing. Specifically, but without limiting the generality of the foregoing, no
action or proceeding by any Noteholder against the Company or any Guarantor
under any document or instrument evidencing obligations of the Company or any
Guarantor to such Noteholder shall serve to diminish the liability of any
Guarantor under this Guaranty, except to the extent that such Noteholder finally
and unconditionally shall have realized payment by such action or proceeding.
2.14. Separate Action; Other Enforcement Rights.
Each of the rights and remedies granted under this Guaranty to each
Noteholder in respect of the Notes held by such Noteholder may be exercised by
such Noteholder with notice by such Noteholder to, but without the consent of or
any other action by, any other Noteholder; provided, however, that the maturity
of the Notes may only be accelerated in accordance with the provisions of the
Note Purchase Agreement or operation of law. Each Noteholder may proceed to
protect and enforce the Unconditional Guaranty by suit or suits or proceedings
in equity, at law or in bankruptcy, and whether for the specific performance of
any covenant or agreement contained herein or in execution or aid of any power
herein granted or for the recovery of judgment for the obligations hereby
guarantied or for the enforcement of any other proper, legal or equitable remedy
available under applicable law.
2.15. Noteholder Set-off.
Each Noteholder shall have, to the fullest extent permitted by law and this
Guaranty, a right of set-off against any and all credits and any and all other
property of any or all of the Guarantors or any other Person, now or at any time
whatsoever, with or in the possession of, such Noteholder, or anyone acting for
such Noteholder, to ensure the full performance of any and all obligations of
each Guarantor hereunder.
Exhibit 4.6(a)
Page 8
2.16. Delay or Omission; No Waiver.
No course of dealing on the part of any Noteholder and no delay or failure
on the part of any such Person to exercise any right hereunder shall impair such
right or operate as a waiver of such right or otherwise prejudice such Person's
rights, powers and remedies hereunder. Every right and remedy given by the
Unconditional Guaranty or by law to any Noteholder may be exercised from time to
time as often as may be deemed expedient by such Person.
2.17. Restoration of Rights and Remedies.
If any Noteholder shall have instituted any proceeding to enforce any right
or remedy under the Unconditional Guaranty or under any Note held by such
Noteholder, and such proceeding shall have been dismissed, discontinued or
abandoned for any reason, or shall have been determined adversely to such
Noteholder, then and in every such case each such Noteholder, the Company and
each Guarantor shall, except as may be limited or affected by any determination
(including, without limitation, any determination in connection with any such
dismissal) in such proceeding, be restored severally and respectively to its
respective former positions hereunder and thereunder, and thereafter, subject as
aforesaid, the rights and remedies of such Noteholders shall continue as though
no such proceeding had been instituted.
2.18. Cumulative Remedies.
No remedy under this Guaranty, the Note Purchase Agreement or the Notes is
intended to be exclusive of any other remedy, but each and every remedy shall be
cumulative and in addition to any and every other remedy given pursuant to this
Guaranty, the Note Purchase Agreement or the Notes.
2.19. Notices in Respect of Payments.
If any Guarantor shall pay to any Noteholder any amount in respect of the
Guarantied Obligations, such Guarantor, within five (5) Business Days after
making such payment, shall provide notice of such payment to each other
Noteholder.
2.20. Limitation on Guarantied Obligation.
Notwithstanding anything in Section 2.1 or elsewhere in this Guaranty, the
Note Purchase Agreement or the Notes to the contrary, the obligations of each
Guarantor hereunder shall at each point in time be limited to an aggregate
amount equal to the greatest amount that would not result in such obligations
being subject to avoidance, or otherwise result in such obligations being
unenforceable, at such time under applicable law (including, without limitation,
to the extent, and only to the extent, applicable to each Guarantor, Section 548
of the Bankruptcy Code of the United States of America and any comparable
provisions of the law of any other jurisdiction, any capital preservation law of
any jurisdiction and any other law of any jurisdiction that at such time limits
the enforceability of the obligations of such Guarantor hereunder).
2.21. Confirmation of Guaranty.
Exhibit 4.6(a)
Page 9
Promptly following the request of any holder of Notes in connection with
any issuance of additional Notes pursuant to the terms of the Note Purchase
Agreement, each Guarantor agrees to confirm in writing that the Unconditional
Guaranty hereunder extends to the obligations of the Company evidenced by such
newly issued Notes, and that such Notes are Guarantied Obligations hereunder.
3. INTERPRETATION OF THIS GUARANTY
3.1. Terms Defined.
For purposes of this Guaranty, the following terms have the meanings
specified below or provided for in the Section of this Guaranty referred to
immediately following such term (such definitions to be equally applicable to
both the singular and plural forms of the terms defined). Capitalized terms used
herein and not otherwise defined herein have the meaning specified in the Note
Purchase Agreement.
Affiliate Obligation -- Section 2.10.
Company -- Section 1(a).
Guarantied Obligations -- Section 2.1.
Guarantors -- has the meaning assigned to such term in the introductory
paragraph hereof.
Note Purchase Agreement -- Section 1(a).
Noteholder -- Section 2.1.
Notes -- Section 1(a).
Person -- means an individual, partnership, corporation, limited liability
company, association, trust, unincorporated organization, or a government
or agency or political subdivision thereof.
Purchasers -- Section 1(a).
Series A Notes --Section 1(a).
Series A Purchasers -- Section 1(a).
Shelf Note Purchasers -- Section 1(a).
Shelf Notes -- Section 1(a).
Unconditional Guaranty -- Section 2.1.
Exhibit 4.6(a)
Page 10
3.2. Section Headings and Construction.
(a) Section Headings, etc. The titles of the Sections appear as a matter of
convenience only, do not constitute a part hereof and shall not affect the
construction hereof. The words "herein," "hereof," "hereunder" and "hereto"
refer to this Guaranty as a whole and not to any particular Section or other
subdivision.
(b) Construction. Each covenant contained herein shall be construed (absent
an express contrary provision herein) as being independent of each other
covenant contained herein, and compliance with any one covenant shall not
(absent such an express contrary provision) be deemed to excuse compliance with
one or more other covenants.
4. WARRANTIES AND REPRESENTATIONS
Guarantors warrant and represent, as of the date hereof, that each of the
warranties and representations made by the Company in Section 5 of the Note
Purchase Agreement with respect to each Guarantor are true with respect to each
Guarantor on the date hereof.
5. GENERAL COVENANTS
Each Guarantor covenants and agrees that on and after the date hereof and
so long as any of the Guarantied Obligations shall be outstanding:
5.1. Undertakings in the Note Purchase Agreement.
Each Guarantor will comply with each of the undertakings of the Company in
the Note Purchase Agreement in respect of which the Company undertakes to cause
such Guarantor to comply with such undertakings, as if such undertakings (as
they apply to the Guarantors) were set forth at length herein as the
undertakings of such Guarantor.
5.2. Payment of Notes and Maintenance of Offices.
Each Guarantor will punctually pay, or cause to be paid, all of the
Guarantied Obligations when due and all other payment obligations required of it
hereunder and will maintain an office at its address as set forth pursuant to
Section 6.3 where notices, presentations and demands in respect of this Guaranty
may be made upon it. Such office will be maintained at such address until such
time as such Guarantor shall notify the Noteholders of any change of location of
such office.
5.3. Further Assurances.
Each Guarantor will cooperate with the Noteholders and execute such further
instruments and documents as the Noteholders shall reasonably request to carry
out, to the reasonable satisfaction of the Noteholders, the transactions
contemplated by the Note Purchase Agreement, the Notes and this Guaranty.
Exhibit 4.6(a)
Page 11
6. MISCELLANEOUS
6.1. Successors and Assigns.
(a) Whenever any Guarantor or any of the parties to the Note Purchase
Agreement is referred to, such reference shall be deemed to include the
successors and assigns of such party, and all the covenants, promises and
agreements contained in this Guaranty by or on behalf of such Guarantor shall
bind the successors and assigns of such Guarantor and shall inure to the benefit
of each of the Noteholders from time to time whether so expressed or not and
whether or not an assignment of the rights hereunder shall have been delivered
in connection with any assignment or other transfer of Notes.
(b) Each Guarantor agrees to take such action as may be reasonably
requested by any Noteholder in connection with the purchase by such Noteholder
or the transfer of the Notes of such Noteholder in accordance with the
requirements of the Note Purchase Agreement in connection with providing an
executed copy of this Guaranty to the new Noteholder or Noteholders of such
Notes; provided, however, that no additional obligations of such Guarantor shall
thereby be created (beyond what is provided by this Guaranty).
6.2. Partial Invalidity.
The unenforceability or invalidity of any provision or provisions
hereof shall not render any other provision or provisions contained herein
unenforceable or invalid.
6.3. Communications.
All communications hereunder shall be in writing, shall be delivered in the
manner required by the Note Purchase Agreement, and shall be addressed, if to
any Guarantor, at the applicable address set forth on Annex 1 hereto, and if to
any of the Noteholders:
(a) if such Noteholder is a Purchaser, at the address for such Noteholder
set forth on Schedule A to the Note Purchase Agreement (in the case of a Series
A Purchaser) or the Purchaser Schedule attached to the applicable Confirmation
of Acceptance (in the case of a Shelf Note Purchaser), and further including any
parties referred to on such schedules (which are required to receive notices in
addition to such Noteholder, and
(b) if such Noteholder is not a Purchaser, at the address for such
Noteholder set forth in the register for the registration and transfer of Notes
maintained pursuant to Section 13.1 of the Note Purchase Agreement,or to any
such party at such other address as such party may designate by notice duly
given in accordance with this Section 6.3. Notices shall be deemed given only
when actually received.
Exhibit 4.6(a)
Page 12
6.4. Governing Law.
THIS GUARANTY SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK.
6.5. Effective Date.
This Guaranty shall be effective as of the date first written above.
6.6. Benefits of Guaranty Restricted to Noteholders.
Nothing express or implied in this Guaranty is intended or shall be
construed to give to any Person other than each Guarantor and the Noteholders
any legal or equitable right, remedy or claim under or in respect hereof or any
covenant, condition or provision therein or herein contained; and all such
covenants, conditions and provisions are and shall be held to be for the sole
and exclusive benefit of each Guarantor and the Noteholders.
6.7. Survival of Representations and Warranties.
All representations and warranties contained herein or made in writing
by each Guarantor in connection herewith shall survive the execution and
delivery hereof.
6.8. Expenses.
(a) Each Guarantor shall pay when billed the reasonable costs and expenses
(including reasonable attorneys' fees) incurred by the Noteholders in connection
with the consideration, negotiation, preparation or execution of any amendments,
waivers, consents, standstill agreements and other similar agreements with
respect hereto (whether or not any such amendments, waivers, consents,
standstill agreements or other similar agreements are executed).
(b) At any time when any of the Company or the Guarantors and the
Noteholders are conducting restructuring or workout negotiations in respect
hereof, or a Default or Event of Default exists, each Guarantor shall pay when
billed the reasonable costs and expenses (including reasonable attorneys' fees
of one firm of attorneys and the reasonable fees of one firm of professional
advisors) incurred by the Noteholders in connection with the assessment,
analysis or enforcement of any rights or remedies that are or may be available
to the Noteholders.
(c) If each Guarantor shall fail to pay when due any principal of, or
interest on, or any other amount due in respect of any Note, each Guarantor
shall pay to each Noteholder, to the extent permitted by law, such amounts as
shall be sufficient to cover the costs and expenses, including but not limited
to reasonable attorneys' fees, incurred by such Noteholder in collecting any
sums due on the Notes.
6.9. Amendment.
This Guaranty may be amended only in a writing executed by each Guarantor
and each Noteholder.
Exhibit 4.6(a)
Page 13
6.10. Survival.
So long as the Guarantied Obligations and all payment obligations of each
Guarantor hereunder shall not have been fully and finally performed and
indefeasibly paid, the obligations of each Guarantor hereunder shall survive the
transfer and payment of any Note and the payment in full of all the Notes.
6.11. Entire Agreement.
This Guaranty constitutes the final written expression of all of the terms
hereof and is a complete and exclusive statement of those terms.
6.12. Duplicate Originals.
Two or more duplicate counterpart originals hereof may be signed by the
parties, each of which shall be an original but all of which together shall
constitute one and the same instrument.
6.13. Waiver of Jury Trial; Consent to Jurisdiction; Etc.
(a) Waiver of Jury Trial. THE PARTIES HERETO VOLUNTARILY AND INTENTIONALLY
WAIVE ANY RIGHT ANY OF THEM MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS GUARANTY OR ANY OF
THE DOCUMENTS, AGREEMENTS OR TRANSACTIONS CONTEMPLATED HEREBY.
(b) Consent to Jurisdiction. ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS GUARANTY, OR ANY OF THE DOCUMENTS, AGREEMENTS OR
TRANSACTIONS CONTEMPLATED HEREBY OR ANY ACTION OR PROCEEDING TO EXECUTE OR
OTHERWISE ENFORCE ANY JUDGMENT IN RESPECT OF ANY BREACH UNDER THIS GUARANTY OR
ANY DOCUMENT OR AGREEMENT CONTEMPLATED HEREBY MAY BE BROUGHT BY SUCH PARTY IN
ANY FEDERAL DISTRICT COURT LOCATED IN NEW YORK CITY, NEW YORK, OR ANY NEW YORK
STATE COURT LOCATED IN NEW YORK CITY, NEW YORK AS SUCH PARTY MAY IN ITS SOLE
DISCRETION ELECT, AND BY THE EXECUTION AND DELIVERY OF THIS GUARANTY, THE
PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMIT TO THE NON-EXCLUSIVE IN
PERSONAM JURISDICTION OF EACH SUCH COURT, AND EACH OF THE PARTIES HERETO
IRREVOCABLY WAIVES AND AGREES NOT TO ASSERT IN ANY PROCEEDING BEFORE ANY
TRIBUNAL, BY WAY OF MOTION, AS A DEFENSE OR OTHERWISE, ANY CLAIM THAT IT IS NOT
SUBJECT TO THE IN PERSONAM JURISDICTION OF ANY SUCH COURT IN ADDITION, EACH OF
THE PARTIES HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW,
ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE IN ANY
SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY
DOCUMENT, AGREEMENT OR TRANSACTION CONTEMPLATED HEREBY BROUGHT IN ANY SUCH
COURT, AND HEREBY IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
Exhibit 4.6(a)
Page 14
(c) Service of Process. EACH PARTY HERETO IRREVOCABLY AGREES THAT PROCESS
PERSONALLY SERVED OR SERVED BY U.S. REGISTERED MAIL AT THE ADDRESSES PROVIDED
HEREIN FOR NOTICES SHALL CONSTITUTE, TO THE EXTENT PERMITTED BY LAW, ADEQUATE
SERVICE OF PROCESS IN ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS GUARANTY OR ANY DOCUMENT, AGREEMENT OR TRANSACTION CONTEMPLATED HEREBY,
OR ANY ACTION OR PROCEEDING TO EXECUTE OR OTHERWISE ENFORCE ANY JUDGMENT IN
RESPECT OF ANY BREACH HEREUNDER OR UNDER ANY DOCUMENT OR AGREEMENT CONTEMPLATED
HEREBY. RECEIPT OF PROCESS SO SERVED SHALL BE CONCLUSIVELY PRESUMED AS EVIDENCED
BY A DELIVERY RECEIPT FURNISHED BY THE UNITED STATES POSTAL SERVICE OR ANY
COMMERCIAL DELIVERY SERVICE.
(d) Other Forums. NOTHING HEREIN SHALL IN ANY WAY BE DEEMED TO LIMIT THE
ABILITY OF ANY HOLDER OF NOTES TO SERVE ANY WRITS, PROCESS OR SUMMONSES IN ANY
MANNER PERMITTED BY APPLICABLE LAW OR TO OBTAIN JURISDICTION OVER ANY GUARANTOR
IN SUCH OTHER JURISDICTION, AND IN SUCH OTHER MANNER, AS MAY BE PERMITTED BY
APPLICABLE LAW.
[Remainder of page intentionally left blank. Next page is signature page.]
Exhibit 4.6(a)
Page 15
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be executed
on each Guarantor's behalf by a duly authorized officer of each such Guarantor.
XXXXXXX AND COMPANY
By: ___________________________
Name:
Title:
XXXXXXX & CO. INTERNATIONAL
By: ___________________________
Name:
Title:
XXXXXXX & CO. JAPAN INC.
By: ___________________________
Name:
Title:
Exhibit 4.6(a)
Page 16
ANNEX 1
ADDRESSES OF GUARANTORS
Xxxxxxx and Company
c/o Xxxxxxx & Co.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Chief Financial Officer
Fax: (000) 000-0000
Xxxxxxx & Co. International
c/o Xxxxxxx & Co.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Chief Financial Officer
Fax: (000) 000-0000
Xxxxxxx & Co. Japan Inc.
c/o Xxxxxxx & Co.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Chief Financial Officer
Fax: (000) 000-0000
Exhibit 4.6(a)
Page 17
