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PERFORMANCE FOOD GROUP COMPANY
$50,000,000 6.77% Senior Notes due May 8, 2010
NOTE PURCHASE AGREEMENT
Dated May 8, 1998
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TABLE OF CONTENTS
1. AUTHORIZATION OF NOTES.................................................1
2. SALE AND PURCHASE OF NOTES.............................................1
3. CLOSING................................................................1
4. CONDITIONS TO CLOSING..................................................2
4.1 Representations and Warranties........................................2
4.2 Performance; No Default...............................................2
4.3 Compliance Certificates...............................................2
4.4 Opinions of Counsel...................................................3
4.5 Purchase Permitted by Applicable Law,etc..............................3
4.6 Sale of Other Notes...................................................3
4.7 Payment of Special Counsel Fees.......................................3
4.8 Private Placement Number..............................................4
4.9 Changes in Corporate Structure........................................4
4.10 Proceedings and Documents............................................4
4.12 Copy of Bank Credit Agreement........................................4
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY..........................4
5.1 Organization; Power and Authority.....................................4
5.2 Authorization, etc....................................................5
5.3 Disclosure............................................................5
5.4 Organization and Ownership of Shares of Subsidiaries; Affiliates......5
5.5 Financial Statements..................................................6
5.6 Compliance With Laws, Other Instruments, etc..........................6
5.7 Governmental Authorizations, etc......................................7
5.8 Litigation; Observance of Agreements, Statutes and Orders.............7
5.9 Taxes.................................................................7
5.10 Title to Property; Leases............................................8
5.11 Licenses, Permits, etc...............................................8
5.12 Compliance With ERISA................................................8
5.13 Private Offering by the Company......................................9
5.14 Use of Proceeds; Margin Regulations.................................10
5.15 Existing Debt; Future Liens.........................................10
5.16 Foreign Assets Control Regulations, etc.............................11
5.17 Status Under Certain Statutes.......................................11
5.18 Environmental Matters...............................................11
6. REPRESENTATIONS OF THE PURCHASER......................................11
6.1 Purchase for Investment..............................................11
6.2 Source of Funds......................................................12
7. INFORMATION AS TO COMPANY.............................................13
7.1 Financial and Business Information...................................13
7.2 Officer's Certificate................................................16
7.3 Inspection...........................................................17
8. PREPAYMENT OF THE NOTES...............................................18
8.1(A) Series A Required Prepayments.....................................18
8.2 Optional Prepayments With Make-Whole Amount..........................18
8.3 Allocation of Partial Prepayments....................................18
8.4 Maturity; Surrender, etc.............................................19
8.5 Purchase of Notes....................................................19
8.6 Make-Whole Amount....................................................19
9. AFFIRMATIVE COVENANTS.................................................21
9.1 Compliance With Law..................................................21
9.2 Insurance............................................................21
9.3 Maintenance of Properties............................................21
9.4 Payment of Taxes and Claims..........................................22
9.5 Corporate Existence, etc.............................................22
9.6 Covenant To Secure Notes Equally.....................................22
10. NEGATIVE COVENANTS...................................................22
10.1 Funded Debt.........................................................23
10.2 Current Debt........................................................23
10.3 Minimum Net Worth...................................................23
10.4 Liens...............................................................23
10.5 Priority Debt.......................................................25
10.6 Merger or Consolidation.............................................25
10.7 Sale of Assets......................................................26
10.8 Transactions With Related Party.....................................27
10.9 Nature of Business..................................................27
11. EVENTS OF DEFAULT....................................................27
12. REMEDIES ON DEFAULT, ETC.............................................30
12.1 Acceleration........................................................30
12.2 Other Remedies......................................................31
12.3 Rescission..........................................................31
12.4 No Waivers or Election of Remedies, Expenses, etc...................31
13. REGISTRATION; EXCHANGE;SUBSTITUTION OF NOTES.........................32
13.1 Registration of Notes...............................................32
13.2 Transfer and Exchange of Notes......................................32
13.3 Replacement of Notes................................................32
14. PAYMENTS ON NOTES....................................................33
14.1 Place of Payment....................................................33
14.2 Home Office Payment.................................................33
15. EXPENSES, ETC........................................................34
15.1 Transaction Expenses................................................34
15.2 Survival............................................................34
16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT.........35
17. AMENDMENT AND WAIVER.................................................35
17.1 Requirements........................................................35
17.2 Solicitation of Holders of Notes....................................35
17.3 Binding Effect, etc.................................................36
17.4 Notes Held by Company, etc..........................................36
18. NOTICES..............................................................36
19. REPRODUCTION OF DOCUMENTS............................................37
20. CONFIDENTIAL INFORMATION.............................................37
21. SUBSTITUTION OF PURCHASER............................................38
22. MISCELLANEOUS........................................................39
22.1 Successors and Assigns..............................................39
22.2 Payments Due on Non-Business Days...................................39
22.3 Severability........................................................39
22.4 Construction........................................................39
22.5 Counterparts........................................................39
22.6 Governing Law.......................................................39
SCHEDULE A -- Information Relating to Purchasers
SCHEDULE B -- Defined Terms
SCHEDULE 4.9 -- Changes in Corporate Structure
SCHEDULE 5.3 -- Disclosure Materials
SCHEDULE 5.4 -- Subsidiaries of the Company and Ownership of
Subsidiary Stock; Company's Affiliates; Company's
Directors and Senior Officers
SCHEDULE 5.5 -- Financial Statements
SCHEDULE 5.8 -- Certain Litigation
SCHEDULE 5.11 -- Patents, etc.
SCHEDULE 5.14 -- Use of Proceeds
SCHEDULE 5.15 -- Existing Debt
SCHEDULE 10.4 -- Liens
EXHIBIT 1 -- Form of Senior Note
EXHIBIT 4.4(a) -- Matters To Be Covered by Opinion of General
Counsel for the Company
EXHIBIT 4.4(b) -- Matters To Be Covered by Opinion of Special
Counsel to the Purchasers
Performance Food Group Company
0000 Xxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
May 8, 1998
TO EACH OF THE PURCHASERS LISTED IN
THE ATTACHED SCHEDULE A:
Ladies and Gentlemen:
Performance Food Group Company, a Tennessee corporation (the
"Company"), agrees with you as follows:
1. AUTHORIZATION OF NOTES.
The Company will authorize the issue and sale of Fifty Million
Dollars ($50,000,000) aggregate principal amount of its 6.77%
Senior Notes due May 8, 2010 (the "Notes", such term to include any
such notes issued in substitution therefor pursuant to Section 13 of
this Agreement or the Other Agreements (as hereinafter defined)).
The Notes shall be substantially in the form set out in Exhibit 1, with
such changes therefrom, if any, as may be approved by you and the
Company. Certain capitalized terms used in this Agreement are
defined in Schedule B; references to a "Schedule" or an "Exhibit"
are, unless otherwise specified, to a Schedule or an Exhibit attached
to this Agreement.
2. SALE AND PURCHASE OF NOTES.
Subject to the terms and conditions of this Agreement, the Company
will issue and sell to you and you will purchase from the Company,
at the Closing provided for in Section 3, Notes in the principal
amounts specified opposite your name in Schedule A at the purchase
price of 100% of the principal amount thereof. Contemporaneously
with entering into this Agreement, the Company is entering into
separate Note Purchase Agreements (the "Other Agreements")
identical with this Agreement with each of the other purchasers
named in Schedule A (the "Other Purchasers"), providing for the
sale at such Closing to each of the Other Purchasers of Notes in the
principal amount specified opposite its name in Schedule A. Your
obligations hereunder and the obligations of the Other Purchasers
under the Other Agreements are several and not joint obligations and
you shall have no obligation under any Other Agreement and no
liability to any Person for the performance or non-performance by
any Other Purchaser thereunder.
3. CLOSING.
The sale and purchase of the Notes to be purchased by you and
the Other Purchasers shall occur at the offices of SunTrust
Bank, 000 0xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, at
10:00 a.m., Atlanta time, at a closing (the "Closing") on May 8,
1998, or on such other Business Day thereafter as may be agreed
upon by the Company and you and the Other Purchasers. At the
Closing the Company will deliver to you the Notes to be
purchased by you in the form of a single Note (or such greater
number of Notes in denominations of at least $500,000 as you may
request) dated the date of the Closing and registered in your
name (or in the name of your nominee), against delivery by you
to the Company or its order of immediately available funds in
the amount of the purchase price therefor by wire transfer of
immediately available funds for the account of the Company to
account number 2050000424870,
Account Name: "Performance Food Group Company", at First Union
National Bank, ABA #000000000. If at the Closing the Company
shall fail to tender such Notes to you as provided above in this
Section 3, or any of the conditions specified in Section 4 shall not
have been fulfilled to your satisfaction, you shall, at your election, be
relieved of all further obligations under this Agreement, without
thereby waiving any rights you may have by reason of such failure or
such nonfulfillment.
4. CONDITIONS TO CLOSING.
Your obligation to purchase and pay for the Notes to be sold to you
at the Closing is subject to the fulfillment to your satisfaction, prior
to or at the Closing, of the following conditions:
4.1 Representations and Warranties.
The representations and warranties of the Company in this
Agreement shall be correct when made and at the time of the
Closing.
4.2 Performance; No Default.
The Company shall have performed and complied with all
agreements and conditions contained in this Agreement required to
be performed or complied with by it prior to or at the Closing and
after giving effect to the issue and sale of the Notes (and the
application of the proceeds thereof as contemplated by Schedule
5.14) no Default or Event of Default shall have occurred and be
continuing. Neither the Company nor any Subsidiary shall have
entered into any transaction since the date of the Memorandum that
would have been prohibited by Sections 10.1 through 10.9 hereof had
such Sections applied since such date.
4.3 Compliance Certificates.
(a) Officer's Certificate. The Company shall have delivered to you
an Officer's Certificate, dated the date of the Closing, certifying that the
conditions specified in Sections 4.1, 4.2 and 4.9 have been fulfilled.
(b) Secretary's Certificates. The Company shall have delivered to
you a certificate from a duly authorized Secretary or Assistant Secretary
of the Company certifying as to the resolutions attached thereto and
other corporate proceedings relating to the authorization, execution
and delivery of the Notes, this Agreement and the Other Agreements.
4.4 Opinions of Counsel.
You shall have received opinions in form and substance satisfactory
to you, dated the date of the Closing (a) from Bass, Xxxxx & Xxxx
PLC, General Counsel for the Company, covering the matters set
forth in Exhibit 4.4(a) and covering such other matters incident to the
transactions contemplated hereby as you or your counsel may
reasonably request (and the Company hereby instructs its counsel to
deliver such opinion to you) and (b) from Xxxxxxxxxx Xxxxxxxx LLP,
your special counsel in connection with such transactions, covering
the matters set forth in Exhibit 4.4(b) and covering such other matters
incident to such transactions as you may reasonably request.
4.5 Purchase Permitted by Applicable Law, etc.
On the date of the Closing your purchase of Notes shall (i) be
permitted by the laws and regulations of each jurisdiction to which
you are subject, without recourse to provisions (such as Section
1405(a)(8) of the New York Insurance Law) permitting limited
investments by insurance companies without restriction as to the
character of the particular investment, (ii) 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
(iii) not subject you to any tax, penalty or liability under or pursuant
to any applicable law or regulation, which law or regulation was in
effect on the date hereof. If requested by you, you shall have
received an Officer's Certificate certifying as to such matters of fact
as you may reasonably specify to enable you to determine whether
such purchase is so permitted.
4.6 Sale of Other Notes.
Contemporaneously with the Closing, the Company shall sell to the
Other Purchasers and the Other Purchasers shall purchase the Notes
to be purchased by them at the Closing as specified in Schedule A.
4.7 Payment of Special Counsel Fees.
Without limiting the provisions of Section 15.1, the Company shall
have paid on or before the Closing the fees, charges and
disbursements of your special counsel referred to in Section 4.4 to the
extent reflected in a statement of such counsel rendered to the
Company at least one Business Day prior to the Closing.
4.8 Private Placement Number.
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.
4.9 Changes in Corporate Structure.
Except as specified in Schedule 4.9, the Company shall not have
changed its jurisdiction of incorporation or been a party to any
merger or consolidation and shall not have succeeded to all or any
substantial part of the liabilities of any other entity, at any time
following the date of the most recent financial statements referred to
in Schedule 5.5.
4.10 Proceedings and Documents.
All corporate and other proceedings in connection with the
transactions contemplated by this Agreement and all documents and
instruments incident to such transactions shall be satisfactory to you
and your special counsel, and you and your special counsel shall have
received all such counterpart originals or certified or other copies of
such documents as you or they may reasonably request.
4.11 Copy of Bank Credit Agreement.
The Company shall have delivered to each Purchaser a copy of the
Bank Credit Agreement, including all amendments thereto, certified
as true and correct by a Senior Financial Officer.
5. REPRESENTATIONS AND WARRANTIES OF THE
COMPANY.
The Company represents and warrants to you that:
5.1 Organization; Power and Authority.
The Company is a corporation duly organized, validly existing and in
good standing under the laws of its jurisdiction of incorporation, and
is duly qualified as a foreign corporation and is in good standing in
each jurisdiction in which such qualification is required by law, other
than those jurisdictions as to which the failure to be so qualified or in
good standing 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 Other Agreements and the Notes and to
perform the provisions hereof and thereof.
5.2 Authorization, etc.
This Agreement and the Other Agreements and the Notes have been
duly authorized by all necessary corporate action on the part of the
Company, and this Agreement constitutes, and upon execution and
delivery thereof each Note will constitute, a legal, valid and binding
obligation of the Company enforceable against the Company in
accordance with its terms, except as such enforceability may be
limited by (i) applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of
creditors' rights generally and (ii) general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law).
5.3 Disclosure.
The Company, through its agent, SunTrust Equitable Securities
Corporation, has delivered to you and each Other Purchaser a copy of
a Private Placement Memorandum, dated March 24, 1998 (the
"Memorandum"), relating to the transactions contemplated hereby.
The Memorandum fairly describes, in all material respects, the
general nature of the business and principal properties of the
Company and its Subsidiaries. Except as disclosed in Schedule 5.3,
this Agreement, the Memorandum, the documents, certificates or
other writings delivered to you by or on behalf of the Company in
connection with the transactions contemplated hereby and the
financial statements listed in Schedule 5.5, taken as a whole, do not
contain any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not misleading
in light of the circumstances under which they were made. Except as
disclosed in the Memorandum or as expressly described in Schedule
5.3, or in one of the documents, certificates or other writings
identified therein, or in the financial statements listed in
Schedule 5.5, since December 27, 1997, 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 Memorandum or in the
other documents, certificates and other writings delivered to you by
or on behalf of the Company specifically for use in connection with
the transactions contemplated hereby.
5.4 Organization and Ownership of Shares of Subsidiaries;
Affiliates.
(a) Schedule 5.4 contains (except as noted therein) complete and
correct lists (i) of the Company's Subsidiaries, showing, as to each
Subsidiary, the correct name thereof, the jurisdiction of its
organization, and the percentage of shares of each class of its capital
stock or similar equity interests outstanding owned by the Company
and each other Subsidiary, (ii) of the Company's Affiliates and (iii) of
the Company's directors and senior officers.
(b) All of the outstanding shares of capital stock or similar
equity interests of each Subsidiary shown in Schedule 5.4 as being owned
by the Company and its Subsidiaries have been validly issued, are
fully paid and nonassessable and are owned by the Company or
another Subsidiary free and clear of any Lien. All of the entities set
forth in Schedule 5.4 are consolidated on the Company's financial
statements.
(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 and to transact the business it transacts and proposes to
transact.
(d) No Subsidiary is a party to, or otherwise subject to any legal
restriction or any agreement (other than this Agreement 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 or similar
equity interests of such Subsidiary.
5.5 Financial Statements.
The Company has delivered to each Purchaser copies of the financial
statements of the Company and its Subsidiaries listed on Schedule
5.5. All of said financial statements (including in each case the
related schedules and notes) fairly present in all material respects the
consolidated financial position of the Company and its Subsidiaries
as of the respective dates specified in such Schedule and the
consolidated results of their operations and cash flows for the
respective periods so specified and have been prepared in accordance
with GAAP consistently applied throughout the periods involved
except as set forth in the notes thereto (subject, in the case of any
interim financial statements, to normal year-end adjustments).
5.6 Compliance With Laws, Other Instruments, etc.
The execution, delivery and performance by the Company of this
Agreement and the Notes will not (i) 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, (ii) 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 (iii) violate any provision of any statute or other rule or
regulation of any Governmental Authority applicable to the
Company or any Subsidiary.
5.7 Governmental Authorizations, etc.
No consent, approval or authorization of, or registration, filing or
declaration with, any Governmental Authority is required in
connection with the execution, delivery or performance by the
Company of this Agreement or the Notes.
5.8 Litigation; Observance of Agreements, Statutes and Orders.
(a) Except as disclosed in Schedule 5.8, there are no actions, suits
or proceedings pending or, to the knowledge of the Company,
threatened against or affecting the Company or any Subsidiary or any
property of the Company or any Subsidiary in any court or before
any arbitrator of any kind or before or by any Governmental
Authority that, individually or in the aggregate, 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 or
reflected appropriate reserves and/or accruals on its balance sheets
for, all taxes, including federal, state, local, sales, use, VAT, customs,
excise, franchise, assets, ad valorem and withholding taxes, duties,
assessments or levies (collectively "Taxes"), except for any Taxes
(i) the amount of which is not individually or in the aggregate
Material or (ii) 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. The federal income tax returns liabilities of the
Company and its Subsidiaries have been audited by the Internal
Revenue Service for all fiscal years up to and including the fiscal
year ended 1993 and any resulting deficiencies, additional
assessments, fines, penalties, interest or other charge have either been
paid for or adequately reserved for in the financial statements listed
in Schedule 5.5. Other than certain ordinary course audits of state
sales and income tax returns, which do not, individually or in the
aggregate, involve Material liabilities, neither the Company nor any
Subsidiary is presently under, nor has any of them received notice of,
any investigation or audit by any national, regional, provincial, local
or other agency concerning any fiscal year or period ended prior to
the date hereof. All Taxes required to be withheld from employees
of the Company and its Subsidiaries for income and social security
taxes have been properly withheld.
5.10 Title to Property; Leases.
The Company and its Subsidiaries have good and sufficient title
(either fee simple or leasehold) to their respective properties that
individually or in the aggregate are Material, including fee simple
title (or a leasehold interest consistent with treatment as a Capital
Lease under GAAP) to all such properties reflected as owned 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.
Except as disclosed in Schedule 5.11,
(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 of the
Company 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 (other than the
obligation to pay benefits or make contributions when due) 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 Company and its ERISA Affiliates have not incurred
withdrawal liabilities (and are not subject to contingent withdrawal
liabilities) under section 4201 or 4204 of ERISA in respect of
Multiemployer Plans that individually or in the aggregate are
Material.
(c) The expected postretirement benefit obligation (determined as
of the last day of the Company's most recently ended fiscal year in
accordance with Financial Accounting Standards Board Statement
No. 106, without regard to liabilities attributable to continuation
coverage mandated by section 4980B of the Code) of the Company
and its Subsidiaries is not Material.
(d) The execution and delivery of this Agreement and the issuance
and sale of the Notes hereunder will not involve any transaction that
is subject to the prohibitions of section 406 of ERISA or in
connection with which a tax could be imposed pursuant to
section 4975(c)(1)(A)-(D) of the Code. The representation by the
Company in the first sentence of this Section 5.12(d) is made in
reliance upon and subject to (i) the accuracy of your representation in
Section 6.2 as to the sources of the funds used to pay the purchase
price of the Notes to be purchased by you and (ii) the assumption,
made solely for the purpose of making such representation, that
Department of Labor Interpretive Bulletin 75-2 with respect to
prohibited transactions remains valid in the circumstances of the
transactions contemplated herein.
(e) The present value of the aggregate benefit
liabilities under each of the Plans (other than Multiemployer Plans),
determined as of the end of such Plan's most recently ended plan year
on the basis of the actuarial assumptions specified for funding purposes
in such Plan's most recent actuarial valuation report, did not exceed the
aggregate current value of the assets of such Plan allocable to such
benefit liabilities by more than $5,000,000 in the aggregate for all
Plans. 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.
5.13 Private Offering by the Company.
Neither the Company nor anyone acting on its behalf has offered the
Notes or any similar securities for sale to, or solicited any offer to
buy any of the same from, or otherwise approached or negotiated in
respect thereof with, any person other than you, the Other Purchasers
and not more than 50 other Institutional Investors, each of which has
been offered the Notes at a private sale for investment. Neither the
Company, nor anyone acting on its behalf has taken, or will take, any
action that would subject the issuance or sale of the Notes to the
registration requirements of Section 5 of the Securities Act.
5.14 Use of Proceeds; Margin Regulations.
The Company will apply the proceeds of the sale of the Notes as set
forth in Schedule 5.14. No part of the proceeds from the sale of the
Notes hereunder will be used, directly or indirectly, for the purpose
of buying or carrying any margin stock within the meaning of
Regulation 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 5% 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 5% 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 Debt; Future Liens.
(a) Except as described therein, Schedule 5.15 sets forth a complete
and correct list of all outstanding Debt of the Company and its
Subsidiaries as of March 28, 1998, since which date there has been
no Material change in the amounts, interest rates, sinking funds,
installment payments or maturities of the Debt 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 Debt of the Company or such Subsidiary
and no event or condition exists with respect to any Debt 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 Debt 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.
Neither the sale of the Notes by the Company hereunder nor its use
of the proceeds thereof will violate the Trading with the Enemy Act,
as amended, or any of the foreign assets control regulations of the
United States Treasury Department (31 CFR, Subtitle B, Chapter V,
as amended) or any enabling legislation or executive order relating
thereto.
5.17 Status Under Certain Statutes.
Neither the Company nor any Subsidiary is subject to regulation
under the Investment Company Act of 1940, as amended, the Public
Utility Holding Company Act of 1935, as amended, the Interstate
Commerce Act, 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 you 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
and has not 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 PURCHASER.
6.1 Purchase for Investment.
You represent that you are purchasing the Notes for your own
account or for one or more separate accounts maintained by you or
for the account of one or more pension or trust funds and not with a
view to the distribution thereof, provided that the disposition of your
or their property shall at all times be within your or their control.
You understand that the Notes have not been registered under the
Securities Act and may be resold only if registered pursuant to the
provisions of the Securities Act or if an exemption from registration
is available, except under circumstances where neither such
registration nor such an exemption is required by law, and that the
Company is not required to register the Notes.
6.2 Source of Funds.
You represent that at least one of the following statements is an
accurate representation as to each source of funds (a "Source") to be
used by you to pay the purchase price of the Notes to be purchased
by you hereunder:
(a) the Source is an insurance company general
account, within the meaning of Prohibited Transaction
Exemption ("PTE") 95-60 (issued July 12, 1995) and there is
no employee benefit plan (treating as a single plan all plans
maintained by the same employer or employee organization)
with respect to which the amount of the general account
reserves and liabilities for all contracts held by or on behalf of
such plan exceeds 10% of the total reserves and liabilities of
such general account (exclusive of separate account
liabilities) plus surplus, as set forth in your most recent annual
statement in the form required by the National Association of
Insurance Commissioners as filed with your state of domicile;
or
(b) the Source is either (i) an insurance company pooled
separate account, within the meaning of Prohibited
Transaction Exemption ("PTE") 00-0 (xxxxxx Xxxxxxx 00,
0000), xx (xx) a bank collective investment fund, within the
meaning of the PTE 91-38 (issued July 12, 1991) and, except
as you have disclosed to the Company in writing pursuant to
this paragraph (b), no employee benefit plan or group of plans
maintained by the same employer or employee organization
beneficially owns more than 10% of all assets allocated to
such pooled separate account or collective investment fund;
or
(c) the Source constitutes assets of an "investment fund"
(within the meaning of Part V of the QPAM Exemption)
managed by a "qualified professional asset manager" or
"QPAM" (within the meaning of Part V of the QPAM
Exemption), no employee benefit plan's assets that are
included in such investment fund, when combined with the
assets of all other employee benefit plans established or
maintained by the same employer or by an affiliate (within
the meaning of Section V(c)(1) of the QPAM Exemption) of
such employer or by the same employee organization and
managed by such QPAM, exceed 20% of the total client
assets managed by such QPAM, the conditions of Part I(c)
and (g) of the QPAM Exemption are satisfied, neither the
QPAM nor a person controlling or controlled by the QPAM
(applying the definition of "control" in Section V(e) of the
QPAM Exemption) owns a 5% or more interest in the
Company, and (i) the identity of such QPAM and (ii) the
names of all employee benefit plans whose assets are
included in such investment fund have been disclosed to the
Company in writing pursuant to this paragraph (c); or
(d) the Source is a governmental plan; or
(e) the Source is one or more employee benefit plans, or a
separate account or trust fund comprised of one or more
employee benefit plans, each of which has been identified to
the Company in writing pursuant to this paragraph (e); or
(f) the Source does not include assets of any employee benefit
plan as determined in accordance with Department of Labor
Regulation Sec 2510.3-101, other than a plan exempt from the
coverage of ERISA.
As used in this Section 6.2, the terms "employee benefit plan",
"governmental plan", and "separate account" shall have the
respective meanings assigned to such terms in Section 3 of ERISA.
7. INFORMATION AS TO COMPANY.
7.1 Financial and Business Information.
The Company shall deliver to each holder of Notes that is an
Institutional Investor:
(a) Quarterly Statements -- within 60 days after the end of
each quarterly fiscal period in each fiscal year of the
Company (other than the last quarterly fiscal period of each
such fiscal year), duplicate copies of,
(i) a consolidated balance sheet of the Company and its
Subsidiaries as at the end of such quarter, and
(ii) consolidated statements of income and cash flows
of the Company and its Subsidiaries, for such quarter
and (in the case of the second and third quarters) for
the portion of the fiscal year ending with such quarter,
setting forth in each case in comparative form the figures for
the corresponding periods in the previous fiscal year, all in
reasonable detail, prepared in accordance with GAAP
applicable to quarterly financial statements generally, and
certified by a Senior Financial Officer as fairly presenting, in
all material respects, the financial position of the companies
being reported on and their results of operations and cash
flows, subject to changes resulting from year-end
adjustments;
provided that delivery within the time period specified above
of copies of the Company's Quarterly Report on Form 10-Q
prepared in compliance with the requirements therefor and
filed with the Securities and Exchange Commission shall be
deemed to satisfy the requirements of this Section 7.1(a) so
long as such requirements of the Securities and Exchange
Commission continue to require that Form 10-Q include the
financial statements described in subparagraphs (i) and (ii)
above;
(b) Annual Statements -- within 120 days after the end of each
fiscal year of the Company, duplicate copies of,
(i) a consolidated balance sheet of the Company and its
Subsidiaries, as at the end of such year, and
(ii) consolidated statements of income, changes in
shareholders' equity and cash flows of the Company
and its Subsidiaries, for such year,
setting forth in each case in comparative form the figures for
the previous fiscal year, all in reasonable detail, prepared in
accordance with GAAP, and accompanied by:
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 financial position of the companies
being reported upon and their results of operations and cash
flows and have been prepared in conformity with GAAP, and
that the examination of such accountants in connection with
such financial statements has been made in accordance with
generally accepted auditing standards, and that such audit
provides a reasonable basis for such opinion in the
circumstances;
(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 the delivery within the time period specified
above of the Company's Annual Report on Form 10-K for
such fiscal year (together with the Company's annual report to
shareholders, if any, prepared pursuant to Rule 14a-3 under
the Exchange Act) prepared in accordance with the
requirements therefor and filed with the Securities and
Exchange Commission, 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
requirements of the Securities and Exchange Commission
continue to require that Form 10-K include the financial
statements described in subparagraphs (i) and (ii) above;
(c) SEC and Other Reports -- promptly upon their becoming
available, one copy of (i) each financial statement, report,
notice or proxy statement sent by the Company or any
Subsidiary to public securities holders generally, and (ii) each
regular or periodic report, each registration statement (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;
(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 ten
days after a Responsible Officer becoming aware of any of
the following, a written notice setting forth the nature thereof
and the action, if any, that the Company or an ERISA
Affiliate proposes to take with respect thereto:
(i) with respect to any Plan, any reportable event, as
defined in section 4043(b) of ERISA and the
regulations thereunder, for which notice thereof has
not been waived pursuant to such regulations as in
effect on the date hereof; or
(ii) the taking by the PBGC of steps to institute, or the
threatening by the PBGC of the institution of,
proceedings under section 4042 of ERISA for the
termination of, or the appointment of a trustee to
administer, any Plan, or the receipt by the Company or
any ERISA Affiliate of a notice from a Multiemployer
Plan that such action has been taken by the PBGC
with respect to such Multiemployer Plan; or
(iii) any event, transaction or condition that could
result in the incurrence of any liability by the
Company or any ERISA Affiliate pursuant to Title I
or IV of ERISA (other than the obligation to make
benefit payments or contributions when due) 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; or
(iv) if at any time 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 $5,000,000;
(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;
(g) New Material Subsidiaries -- within 30 days after the end
of each quarterly fiscal period in each fiscal year of the
Company in which a Material Subsidiary has been formed or
acquired, or any other event resulting in the creation of a new
Material Subsidiary, notice of the formation or acquisition of
such Material Subsidiary or such occurrence, including a
description of the assets of such entity, the activities in which
it will be engaged, and such other information as an
Institutional Investor may request;
(h) Bank Credit Agreement -- promptly, and in any event
within 30 days after the execution thereof, a copy of each
amendment of, other modification to, or waiver granted
under, the Bank Credit Agreement; and
(i) Requested Information -- with reasonable promptness, such
other data and information relating to the business,
operations, affairs, financial condition, assets or properties of
the Company or any of its Subsidiaries or relating to the
ability of the Company to perform its obligations hereunder
and under the Notes as from time to time may be reasonably
requested by any such holder of Notes.
7.2 Officer's Certificate.
Each set of financial statements delivered to a holder of Notes
pursuant to Section 7.1(a) or Section 7.1(b) shall be accompanied by
a certificate of a Senior Financial Officer setting forth:
(a) Covenant Compliance -- the information (including
detailed calculations) required in order to establish whether
the Company was in compliance with the requirements of
Sections 10.1, 10.2, 10.3, 10.4, 10.5, 10.6, 10.7 and 10.8
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 shall not have
disclosed the existence during such period of any condition or
event that constitutes a Default or an Event of Default or, if
any such condition or event existed or exists, specifying the
nature and period of existence thereof and what action the
Company shall have taken or proposes to take with respect
thereto.
7.3 Inspection.
The Company shall permit the representatives of each holder of
Notes that is an Institutional Investor:
(a) No Default -- if no Default or Event of Default then exists,
at the expense of such holder and upon reasonable prior
notice to the Company, to visit the principal executive office
of the Company, to discuss the affairs, finances and accounts
of the Company and its Subsidiaries with the Company's
officers, and (with the consent of the Company, which
consent will not be unreasonably withheld) 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. PREPAYMENT OF THE NOTES.
8.1 Required Prepayments; Payment at Maturity.
On May 8, 2006 and on each November 8 and May 8 thereafter to
and including November 8, 2009, the Company will prepay
$5,555,550, and on May 8, 2010 the Company will make a final
payment of $5,555,600 of principal amount (or such amount as shall
be the remaining outstanding principal amount) of the Notes at par
and without payment of the Make-Whole Amount or any premium,
provided that upon any partial prepayment of Notes pursuant to
Section 8.2 or purchase of Notes permitted by Section 8.5 the
principal amount of each required prepayment of Notes becoming
due under this Section 8.1 on and after the date of such prepayment
or purchase shall be reduced in the same proportion as the aggregate
unpaid principal amount of Notes is reduced as a result of such
prepayment or purchase.
8.2 Optional Prepayments With Make-Whole Amount.
The Company may, at its option, upon notice as provided below,
prepay the Notes in whole at any time, or from time to time in part in
an amount not less than $5,000,000, at 100% of the principal amount
so prepaid plus all accrued and unpaid interest on the principal
amount of Notes so prepaid, plus the Make-Whole Amount
determined for the prepayment date with respect to such principal
amount. Any such optional payment shall be on a Business Day and
the Company will give each holder of Notes written notice of each
optional prepayment under this Section 8.2 not less than 30 days and
not more than 60 days prior to the Business Day fixed for such
prepayment. Each such notice shall specify such date, the aggregate
principal amount of the Notes to be prepaid on such date, the
principal amount of each Note held by such holder to be prepaid
(determined in accordance with Section 8.3), and the interest to be
paid on the prepayment date with respect to such principal amount
being prepaid, and shall be accompanied by a certificate of a Senior
Financial Officer as to the estimated Make-Whole Amount due in
connection with such prepayment (calculated as if the date of such
notice were the date of the prepayment), setting forth the details of
such computation. At least two Business Days prior to such
prepayment, the Company shall deliver to each holder of Notes a
certificate via facsimile transmission of a Senior Financial Officer
specifying the calculation of such Make-Whole Amount as of the
specified prepayment date. The Notes shall not be subject to
prepayment at the option of the Company except pursuant to this
Section 8.2.
8.3 Allocation of Partial Prepayments.
In the case of each partial prepayment of the Notes, the principal
amount of the Notes to be prepaid shall be allocated among all Notes
then outstanding in proportion, as nearly as practicable, to the
respective unpaid principal amounts of all such Notes not theretofore
called for prepayment.
8.4 Maturity; Surrender, etc.
In the case of each prepayment of Notes pursuant to this Section 8,
the principal amount of each Note to be prepaid shall mature and
become due and payable on the date fixed for such prepayment,
together with interest on such principal amount accrued (but unpaid)
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 canceled and shall not
be reissued, and no Note shall be issued in lieu of any prepaid
principal amount of any Note.
8.5 Purchase of Notes.
The Company will not, and will not permit any Affiliate or
Subsidiary to, purchase, redeem, prepay or otherwise acquire,
directly or indirectly, any of the outstanding Notes except upon the
payment or prepayment of the Notes in accordance with the terms of
this Agreement and the Notes. The Company will promptly cancel
all Notes acquired by it or any Affiliate or Subsidiary pursuant to any
payment, prepayment or purchase of Notes pursuant to any provision
of this Agreement and no Notes may be issued in substitution or
exchange for any such Notes.
8.6 Make-Whole Amount.
The term "Make-Whole Amount" means, with respect to any Note,
an amount equal to the excess, if any, of the Discounted Value of the
Remaining Scheduled Payments with respect to the Called Principal
of such Note over the amount of such Called Principal, provided that
the Make-Whole Amount may in no event be less than zero. For the
purposes of determining the Make-Whole Amount, the following
terms have the following meanings:
"Called Principal" means, with respect to any Note, the
principal of such Note that is to be prepaid pursuant to
Section 8.2 or has become or is declared to be immediately
due and payable pursuant to Section 12.1, as the context
requires.
"Discounted Value" means, with respect to the Called
Principal of any Note, the amount obtained by discounting all
Remaining Scheduled Payments with respect to such Called
Principal from their respective scheduled due dates to the
Settlement Date with respect to such Called Principal, in
accordance with accepted financial practice and at a discount
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, 0.50% plus the yield to maturity
implied by (i) the yields reported (offer side), 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 500" on
the Telerate Access Service (or such other display as may
replace Page 500 on Telerate Access Service) for actively
traded U.S. Treasury securities having a maturity equal to the
Remaining Average Life of such Called Principal as of such
Settlement Date, or (ii) if such yields are not reported as of
such time or the yields reported as of such time are not
ascertainable, the Treasury Constant Maturity Series Yields
reported, for the latest day for which such yields have been so
reported as of the second Business Day preceding the
Settlement Date with respect to such Called Principal, in
Federal Reserve Statistical Release H.15 (519) (or any
comparable successor publication) for actively traded U.S.
Treasury securities having a constant maturity equal to the
Remaining Average Life of such Called Principal as of such
Settlement Date. Such implied yield in (i) and (ii) above will
be determined, if necessary, by (a) converting U.S. Treasury
xxxx quotations to bond-equivalent yields in accordance with
accepted financial practice and (b) interpolating linearly
between (1) the actively traded U.S. Treasury security with
the maturity closest to and greater than the Remaining
Average Life and (2) 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 (i) such Called
Principal into (ii) the sum of the products obtained by
multiplying (a) the principal component of each Remaining
Scheduled Payment with respect to such Called Principal by
(b) the number of years (calculated to the nearest one-twelfth
year) that will elapse between the Settlement Date with
respect to such Called Principal and the scheduled due date of
such Remaining Scheduled Payment.
"Remaining Scheduled Payments" means, with respect to
the Called Principal of any Note, all payments of such Called
Principal and interest thereon that would be due after the
Settlement Date with respect to such Called Principal if no
payment of such Called Principal were made prior to its
scheduled due date, provided that if such Settlement Date is
not a date on which interest payments are due to be made
under the terms of the Notes, then the amount of the next
succeeding scheduled interest payment will be reduced by the
amount of interest accrued to such Settlement Date and
required to be paid on such Settlement Date pursuant to
Section 8.2 or 12.1.
"Settlement Date" means, with respect to the Called
Principal of any Note, the date on which such Called
Principal is to be prepaid pursuant to Section 8.2 or has
become or is declared to be immediately due and payable
pursuant to Section 12.1, as the context requires.
9. AFFIRMATIVE COVENANTS.
The Company covenants that so long as any of the Notes are
outstanding:
9.1 Compliance With Law.
The Company shall and shall cause each of its Subsidiaries to
comply with all laws, ordinances or governmental rules or
regulations to which each of them is subject, including, without
limitation, Environmental Laws, and shall 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 shall and shall 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 shall and shall cause each of its Subsidiaries to
maintain and keep, or cause to be maintained and kept, their
respective properties in good repair, working order and condition
(other than ordinary wear and tear), so that the business carried on in
connection therewith may be properly conducted at all times,
provided that this Section shall not prevent the Company or any
Subsidiary from discontinuing the operation and the maintenance of
any of its properties if such discontinuance is desirable in the conduct
of its business and the Company has concluded that such
discontinuance 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 shall and shall 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 and assessments have become due and payable and
before they have become 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 (i) 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 (ii) the nonpayment of all such taxes and assessments
in the aggregate could not reasonably be expected to have a Material
Adverse Effect.
9.5 Corporate Existence, etc.
The Company shall at all times preserve and keep in full force and
effect its corporate existence. Subject to Sections 10.6 and 10.7, the
Company shall 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 Covenant To Secure Notes Equally.
The Company covenants that, if it or any Subsidiary shall create or
assume any Lien upon any of its property or assets, whether now
owned or hereafter acquired, other than Liens permitted by the
provisions of Section 10.4 and 10.5 hereof (unless prior written
consent to the creation or assumption thereof shall have been
obtained pursuant to Section 17), the Company will make or cause to
be made effective provision whereby the Notes will be secured by
such Lien equally and ratably with any and all other Debt thereby
secured so long as any such other Debt shall be so secured. This
Section 9.6 shall not be deemed a consent to any Lien or Liens not
otherwise permitted by Section 10.4 or Section 10.5.
10. NEGATIVE COVENANTS.
The Company covenants that so long as any of the Notes are
outstanding:
10.1 Debt.
The Company shall maintain at all times a ratio of Consolidated Debt
to Consolidated Total Capitalization, expressed as a percentage, of
not greater that 60%.
10.2 Fixed Charge Coverage.
The Company shall maintain a ratio of Income Available for Fixed
Charges to Fixed Charges of not less than 2.0 to 1.0, calculated at the
end of each fiscal quarter based upon the period of four consecutive
fiscal quarters then ended.
10.3 Minimum Net Worth.
The Company shall not permit Consolidated Net Worth to be less
than $115,000,000 at any time.
10.4 Liens.
The Company shall not, and shall not permit any Subsidiary to,
create, assume or suffer to exist any Lien upon any of its property or
assets, whether now owned or hereafter acquired except:
(i) Liens existing on the date of Closing and specified on
Schedule 10.4;
(ii) all Liens created pursuant to that certain Participation
Agreement dated August 29, 1997, among the Company, First
Security Bank, National Association (as owner trustee), First
Union National Bank, as Agent for the lenders named therein,
and the lenders named therein, or pursuant to any documents
entered into pursuant to such agreement;
(iii) any Lien on property acquired, constructed or improved
by the Company after the date hereof to secure or provide for
all or a portion of the purchase price of such property or the
cost of construction of such property provided (A) any such
Lien shall extend solely to the item or items of such property
so acquired or constructed 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 or constructed property or
which is real property being improved by such acquired or
constructed property, (B) the principal amount of the Debt
secured by any such Lien shall at no time exceed an amount
equal to the lesser of (1) the cost to the Company or such
Subsidiary of the property so acquired or constructed and (2)
the Fair Market Value of such property at the time of such
acquisition or construction and (C) any such Lien shall be
created contemporaneously with, or within 180 days after, the
acquisition or construction of such property;
(iv) Liens (A) for taxes (including ad valorem and property
taxes) and assessments or governmental charges or levies not
yet due or (B) for other taxes due or (C) resulting from any
judgment or award, and which in the case of clauses (B) and
(C), are being actively contested in good faith by appropriate
proceedings and with respect to which adequate reserves are
being maintained;
(v) statutory landlord liens and statutory liens of carriers,
warehousemen, mechanics, materialmen and other similar
liens imposed by law, incurred in the ordinary course of
business for amounts not yet due or which are being contested
in good faith by appropriate proceedings or with respect to
which adequate reserves are being maintained, and which
were not incurred in connection with the securing of any
Debt;
(vi) Liens (other than any Lien imposed by ERISA) incurred
or deposits made in the ordinary course of business in
connection with workers' compensation, unemployment
insurance and other types of social security or to secure the
performance of tenders, statutory obligations, surety and
appeal bonds (not in excess of $5,000,000), bids, leases (other
than Capital Leases), government contracts, performance and
return of money bonds and similar obligations, in each case
not incurred in connection with the securing of any Debt;
(vii) easements, rights-of-way, zoning and similar restrictions
and other similar charges or encumbrances incidental to and
not materially interfering with the ordinary conduct of the
business of the Company or any of its Subsidiaries or
materially detracting from the value of the property subject
thereto;
(viii) other Liens incidental to the conduct of its business or
the ownership of its property and assets which were incurred
in the ordinary course of business and not incurred in
connection with the securing of any Debt, and which do not
in the aggregate materially detract from the value of property
or assets of the Company and its Subsidiaries taken as a
whole or materially impair the use of such property or assets
in the operation of the business of the Company or any of its
Subsidiaries;
(ix) Liens provided for in equipment leases that are not
Capital Leases (including financing statements and
undertakings to file financing statements); provided that they
are limited to the equipment subject to such leases and the
proceeds thereof;
(x) leases, subleases, licenses and sublicenses granted to third
parties in the ordinary course of business and not interfering
in any material respect with the business of the Company or
any of its Subsidiaries;
(xi) any Lien renewing, extending, or refunding any Lien
described in subparagraphs (i) through (iii) above, or
subparagraph (xiv) below, provided that the principal amount
secured is not increased and that such Lien is not extended to
other property (other than pursuant to its original terms);
(xii) Liens on property or assets of a Subsidiary of the
Company to secure obligations of such Subsidiary to the
Company or another Wholly-Owned Subsidiary;
(xiii) any right of set off or banker's lien (whether by common
law, statute, contract or otherwise) in favor of any bank (other
than Liens securing Debt; and
(xiv) Liens on property of any Subsidiary that existed
immediately prior to the time that such Subsidiary was
acquired by the Company and became a Subsidiary of the
Company, provided that (A) any such Lien was not incurred
in anticipation of such acquisition, (B) the assets of such
Subsidiary subject to such Lien shall only be those assets
subject to such Lien at the time of the closing of the
acquisition of such Subsidiary and (C) the principal amount
of Debt secured by any such Lien shall not exceed the amount
of Debt so secured by any such Lien at the time of the closing
of the acquisition of such Subsidiary; and
(xv) Liens securing Priority Debt described in clause (ii) of
the definition of Priority Debt; provided, however, that after
giving effect to the Debt secured by such Liens, Priority Debt
shall not exceed 20% of Consolidated Net Worth at any time.
10.5 Priority Debt.
The Company shall not at any time permit Priority Debt to exceed
20% of Consolidated Net Worth.
10.6 Merger or Consolidation.
The Company shall not, and shall not permit any Subsidiary to,
merge, consolidate or exchange shares with any other Person, except
that:
(i) any Subsidiary may merge or consolidate with and into the
Company or with a Subsidiary that is a Wholly-Owned
Subsidiary or if not a Wholly-Owned Subsidiary in which the
ownership interest of the Company is not reduced or diluted
in connection with or as a result of such merger or
consolidation; and
(ii) the Company may merge or consolidate with any other
corporation so long as:
(A) the surviving corporation shall be the Company or another
corporation organized under the laws of the United States or a
State thereof or the District of Columbia;
(B) the surviving corporation (if not the Company) shall
assume the obligations of the Company hereunder pursuant to
an agreement reasonably acceptable to the Required Holders;
and
(C) immediately after giving effect to such merger or
consolidation, no Default or Event of Default shall have
occurred or exist; and
(iii) any Subsidiary may merge or consolidate with any other
Person in connection with the acquisition of such other
Person, provided that immediately after giving effect to such
acquisition, such acquisition does not otherwise result in a
Default or an Event of Default hereunder.
10.7 Sale of Assets.
The Company will not, and will not permit any Subsidiary to,
Dispose of any property or assets (other than marketable securities),
except, so long as no Default or Event of Default shall exist and be
continuing:
(i) any Subsidiary (the "Transferor Subsidiary") may
Dispose of its assets to the Company or another Subsidiary
(the "Transferee Subsidiary") so long as, in the case of a
Disposition to another Subsidiary, the ownership interest of
the Company in the Transferee Subsidiary is at least equal to,
or greater than, the Company's ownership interest in the
Transferor Subsidiary;
(ii) the Company or any Subsidiary may Dispose of any
equipment that it in its good faith opinion determines to be
obsolete, worn out or no longer useful in its business, as
determined in good faith by the Company;
(iii) the Company or any Subsidiary may Dispose of inventory
in the ordinary course of business;
(iv) the Company or any Subsidiary may Dispose of any other
of its assets so long as immediately after giving effect to such
proposed Disposition;
(A) the consideration for such assets represents the
Fair Market Value of such assets at the time of such
Disposition; and
(B) the cumulative net book value of all assets
Disposed of by the Company and its Subsidiaries
during any period of 12 consecutive calendar months
does not exceed 15% of Consolidated Assets
determined as of the most recently completed fiscal
year.
For purposes of this Section 10.7:
(1) "Disposition" means the sale, lease, transfer or other
disposition of property (including without limitation the
transfer or issuance of shares or equity interests in any
Subsidiary) but shall not include any public taking or
condemnation, and "Dispose of" and "Disposed of" shall have
a corresponding meaning to Disposition. The term
"Disposition" shall not include an exchange of assets,
provided that the assets involved in such exchange are similar
in function in that after giving effect to such exchange there
has not been (A) a Materially Adverse Effect upon the
Company and its Subsidiaries taken as a whole, (B) any
material deterioration of cash flow generation from or in
connection with such assets, or (C) any material deterioration
in the overall quality of plant, property and equipment of the
Company and its Subsidiaries taken as a whole. An
"exchange" shall be deemed to have occurred if each of the
transactions involved shall have been consummated within a
six month period.
(2) Calculation of net book value. The net book value of any
assets shall be determined as of the respective date of
Disposition of those assets.
10.8 Transactions With Related Party.
The Company shall not, and shall not permit any Subsidiary to,
effect or permit to exist any transaction with any Affiliate by which any
asset or services of the Company or a Subsidiary is transferred to
such Affiliate, or enter into any other transaction with an Affiliate on
terms more favorable to such Affiliate than would be reasonably
expected in a similar transaction with an unrelated entity.
10.9 Nature of Business.
Neither the Company nor any Subsidiary shall engage in any
business, if as a result, when taken as a whole, the general nature of
the business then engaged in by the Company and its Subsidiaries
would be Materially changed from the nature of the business of the
Company and its Subsidiaries on the date hereof.
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 Sections 10.1, 10.2, 10.3, 10.4,
10.5, 10.6, 10.7, 10.8 or 10.9; 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
(e) any representation or warranty made in writing by or on
behalf of the Company or by any officer of the Company in
this Agreement or in any writing furnished in connection with
the transactions contemplated hereby proves to have been
false or incorrect in any material respect on the date as of
which made; or
(f) (i) the Company or any 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 Debt that is outstanding in an aggregate
principal amount of at least $5,000,000 beyond any period of
grace provided with respect thereto, or (ii) the Company or
any Subsidiary is in default in the performance of or
compliance with any term of any evidence of any Debt in an
aggregate outstanding principal amount of at least $5,000,000
or of any mortgage, indenture or other agreement relating
thereto or any other condition exists, and as a consequence of
such default or condition such Debt has become, or has been
declared (or one or more Persons are entitled to declare such
Debt to be), due and payable before the stated maturity or
before the regularly scheduled dates of payment of such Debt,
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 any Debt to convert such Debt into
equity interests), (x) the Company or any Subsidiary has
become obligated to purchase, redeem, collateralize or pay, or
to establish a sinking fund for, any Debt before the regular
maturity or before the regularly scheduled dates of payment
of such Debt in an aggregate outstanding principal amount of
at least $5,000,000, or (y) one or more Persons have the right
to require the Company or any Subsidiary so to purchase,
redeem, collateralize or pay, or to establish a sinking fund for,
such Debt; or
(g) the Company or any Subsidiary (i) is generally not paying,
or admits in writing its inability to pay, its debts as they
become due, (ii) files, or consents by answer or otherwise to
the filing against it of, a petition for relief or reorganization or
arrangement or any other petition in bankruptcy, for
liquidation or to take advantage of any bankruptcy,
insolvency, reorganization, moratorium or other similar law
of any jurisdiction, (iii) makes an assignment for the benefit
of its creditors, (iv) consents to the appointment of a
custodian, receiver, trustee or other officer with similar
powers with respect to it or with respect to any substantial
part of its property, (v) is adjudicated as insolvent or to be
liquidated, or (vi) takes corporate action for the purpose of
any of the foregoing; or
(h) a court or Governmental Authority of competent
jurisdiction enters an order appointing, without consent by the
Company or any of its Subsidiaries, a custodian, receiver,
trustee or other officer with similar powers with respect to it
or with respect to any substantial part of its property, or
constituting an order for relief or approving a petition for
relief or reorganization or any other petition in bankruptcy or
for liquidation or to take advantage of any bankruptcy or
insolvency law of any jurisdiction, or ordering the
dissolution, winding-up or liquidation of the Company or any
of its Subsidiaries, or any such petition shall be filed against
the Company or any of its Subsidiaries and such petition shall
not be dismissed within 60 days; or
(i) a final judgment or judgments for the payment of money
aggregating in excess of $5,000,000 are rendered against one
or more of the Company and its Subsidiaries and which
judgments are not, within 60 days after entry thereof, bonded,
discharged or stayed pending appeal, or are not discharged
within 60 days after the expiration of such stay; or
(j) 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 Company or any
ERISA Affiliate shall have incurred or is reasonably expected
to incur any liability pursuant to Title I or IV of ERISA (other
than the obligation to make benefit payments or contributions
when due) or the penalty or excise tax provisions of the Code
relating to employee benefit plans, (iv) the Company or any
ERISA Affiliate withdraws from any Multiemployer Plan, (v)
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, or (vi) 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 at
any time exceed $5,000,000; 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(j), the terms "employee benefit plan" and
"employee welfare benefit plan" shall have the respective
meanings assigned to such terms in Section 3 of ERISA.
12. REMEDIES ON DEFAULT, ETC.
12.1 Acceleration.
(a) If an Event of Default with respect to the Company described in
paragraph (g) or (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 51% in principal amount of the Notes
at the time outstanding may at any time at its or their option, by
notice or notices to the Company, declare all the Notes then
outstanding to be immediately due and payable.
(c) If any Event of Default described in paragraph (a) or (b) of
Section 11 has occurred and is continuing, any holder or holders of
Notes at the time outstanding affected by such Event of Default may
at any time, at its or their option, by notice or notices to the
Company, declare all the Notes held by it or them to be immediately
due and payable.
Upon any Notes becoming due and payable under this Section 12.1,
whether automatically or by declaration, such Notes will forthwith
mature and the entire unpaid principal amount of such Notes, plus (x)
all accrued and unpaid interest thereon and (y) the Make-Whole
Amount determined in respect of such principal amount (to the full
extent permitted by applicable law), shall all be immediately due and
payable, in each and every case without presentment, demand, protest
or further notice, all of which are hereby waived. The Company
acknowledges, and the parties hereto agree, that each holder of a
Note has the right to maintain its investment in the Notes free from
repayment by the Company (except as herein specifically provided
for) and that the provision for payment of a Make-Whole Amount by
the Company in the event that the Notes are prepaid or are
accelerated as a result of an Event of Default, is intended to provide
compensation for the deprivation of such right under such
circumstances.
12.2 Other Remedies.
If any Default or Event of Default has occurred and is continuing,
and irrespective of whether any Notes have become or have been
declared immediately due and payable under Section 12.1, the holder
of any Note at the time outstanding may proceed to protect and
enforce the rights of such holder by an action at law, suit in equity or
other appropriate proceeding, whether for the specific performance of
any agreement contained herein or in any Note, or for an injunction
against a violation of any of the terms hereof or thereof, or in aid of
the exercise of any power granted hereby or thereby or by law or
otherwise.
12.3 Rescission.
At any time after any Notes have been declared due and payable
pursuant to clause (b) or (c) of Section 12.1, the holders of not less
than 51% in principal amount of the Notes then outstanding, by
written notice to the Company, may rescind and annul any such
declaration and its consequences if (a) the Company has paid all
overdue interest on the Notes, all principal of and Make-Whole
Amount, if any, on any Notes that are due and payable and are
unpaid other than by reason of such declaration, and all interest on
such overdue principal and Make-Whole Amount, if any, and (to the
extent permitted by applicable law) any overdue interest in respect of
the Notes, at the Default Rate, (b) all Events of Default and Defaults,
other than non-payment of amounts that have become due solely by
reason of such declaration, have been cured or have been waived
pursuant to Section 17, and (c) no judgment or decree has been
entered for the payment of any monies due pursuant hereto or to the
Notes. No rescission and annulment under this Section 12.3 will
extend to or affect any subsequent Event of Default or Default or
impair any right consequent thereon.
12.4 No Waivers or Election of Remedies, Expenses, etc.
No course of dealing and no delay on the part of any holder of any
Note in exercising any right, power or remedy shall operate as a
waiver thereof or otherwise prejudice such holder's rights, powers or
remedies. No right, power or remedy conferred by this Agreement or
by any Note upon any holder thereof shall be exclusive of any other
right, power or remedy referred to herein or therein or now or
hereafter available at law, in equity, by statute or otherwise. Without
limiting the obligations of the Company under Section 15, the
Company will pay to the holder of each Note on demand such further
amount as shall be sufficient to cover all reasonable costs and
expenses of such holder incurred in any enforcement or collection
under this Section 12, including, without limitation, reasonable
attorneys' fees, expenses and disbursements.
13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES.
13.1 Registration of Notes.
The Company shall keep at its principal executive office a register
for the registration and registration of transfers of Notes. The name
and address of each holder of one or more Notes, each transfer
thereof and the name and address of each transferee of one or more
Notes shall be registered in such register. Prior to due presentment
for registration of transfer, the Person in whose name any Note shall
be registered shall be deemed and treated as the owner and holder
thereof for all purposes hereof, and the Company shall not be
affected by any notice or knowledge to the contrary. The Company
shall give to any holder of a Note that is an Institutional Investor
promptly upon request therefor, a complete and correct copy of the
names and addresses of all registered holders of Notes.
13.2 Transfer and Exchange of Notes.
Upon surrender of any Note at the principal executive office of the
Company for registration of transfer or exchange (and in the case of a
surrender for registration of transfer, duly endorsed or accompanied
by a written instrument of transfer duly executed by the registered
holder of such Note or 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 (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 1. 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 $500,000, 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 $500,000. 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. You
acknowledge and agree that the Company shall not be required to
transfer any Note except pursuant to an applicable exemption from
the registration requirement of applicable securities laws.
13.3 Replacement of Notes.
Upon receipt by the Company of evidence reasonably satisfactory to
it of the ownership of and the loss, theft, destruction or mutilation of
any Note (which evidence shall be, in the case of an Institutional
Investor, notice from such Institutional Investor of such ownership
and such loss, theft, destruction or mutilation), and
(a) in the case of loss, theft or destruction, of indemnity
reasonably satisfactory to it (provided that if the holder of such Note
is, or is a nominee for, an original Purchaser or another holder of a
Note with a minimum net worth of at least $100,000,000, such
Person's own unsecured agreement of indemnity shall be deemed to
be satisfactory), or
(b) in the case of mutilation, upon surrender and cancellation
thereof, the Company at its own expense shall execute and deliver, in
lieu thereof, a new Note, dated and bearing interest from the date to
which interest shall have been paid on such lost, stolen, destroyed or
mutilated Note or dated the date of such lost, stolen, destroyed or
mutilated Note if no interest shall have been paid thereon.
14. PAYMENTS ON NOTES.
14.1 Place of Payment.
Subject to Section 14.2, payments of principal, Make-Whole
Amount, if any, and interest becoming due and payable on the Notes
shall be made in New York, New York, at the principal office of The
Chase Manhattan Bank in such jurisdiction. The Company may at
any time, by notice to each holder of a Note, change the place of
payment of the Notes so long as such place of payment shall be either
the principal office of the Company in such jurisdiction or the
principal office of a bank or trust company in such jurisdiction.
14.2 Home Office Payment.
So long as you or your nominee shall be the holder of any Note, and
notwithstanding anything contained in Section 14.1 or in such Note
to the contrary, the Company will pay all sums becoming due on
such Note for principal, Make-Whole Amount, if any, and interest by
the method and at the address specified for such purpose below your
name in Schedule A, or by such other method or at such other
address as you shall have from time to time specified to the Company
in writing for such purpose, without the presentation or surrender of
such Note or the making of any notation thereon, except that upon
written request of the Company made concurrently with or
reasonably promptly after payment or prepayment in full of any
Note, you shall surrender such Note for cancellation, reasonably
promptly after any such request, to the Company at its principal
executive office or at the place of payment most recently designated
by the Company pursuant to Section 14.1. Prior to any sale or other
disposition of any Note held by you or your nominee you will, at
your election, either endorse thereon the amount of principal paid
thereon and the last date to which interest has been paid thereon or
surrender such Note to the Company in exchange for a new Note or
Notes pursuant to Section 13.2. The Company will afford the
benefits of this Section 14.2 to any Institutional Investor that is the
direct or indirect transferee of any Note purchased by you under this
Agreement and that has made the same agreement relating to such
Note as you have made in this Section 14.2 so long as such transfer
has been made in congruence with Section 13.2.
15. EXPENSES, ETC.
15.1 Transaction Expenses.
Whether or not the transactions contemplated hereby are
consummated, the Company will pay all reasonable costs and
expenses (including reasonable attorneys' fees of a special counsel
and, if reasonably required, local or other counsel) incurred by you
and each Other 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 this Agreement or the Notes (whether
or not such amendment, waiver or consent becomes effective),
including, without limitation: (a) the reasonable costs and expenses
incurred in enforcing or defending (or determining whether or how to
enforce or defend) any rights under this Agreement or the Notes or in
responding to any subpoena or other legal process or informal
investigative demand issued in connection with this Agreement or the
Notes, or by reason of being a holder of any Note, and (b) the
reasonable costs and expenses, including financial advisors' fees,
incurred in connection with the insolvency or bankruptcy of the
Company or any Subsidiary or in connection with any work-out or
restructuring of the transactions contemplated hereby and by the
Notes. The Company will pay, and will save you and each other
holder of a Note harmless from, all claims in respect of any fees,
costs or expenses if any, of brokers and finders (other than those
retained by you or your transferees).
15.2 Survival.
The obligations of the Company under Section 15.1 shall survive the
payment or transfer permitted pursuant to Section 13.2 of any Note,
the enforcement, amendment or waiver of any provision of this
Agreement or the Notes, and the termination of this Agreement.
16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT.
All representations and warranties contained herein shall survive the
execution and delivery of this Agreement and the Notes, the purchase
or transfer by you of any Note or portion thereof or interest therein
and the payment of any Note, and may be relied upon by any
subsequent holder of a Note, regardless of any investigation made at
any time by or on behalf of you or any other holder of a Note. All
statements contained in any certificate or other instrument delivered
by or on behalf of the Company pursuant to this Agreement shall be
deemed representations and warranties of the Company under this
Agreement. Subject to the preceding sentence, this Agreement and
the Notes embody the entire agreement and understanding between
you and the Company and supersede all prior agreements and
understandings relating to the subject matter hereof.
17. AMENDMENT AND WAIVER.
17.1 Requirements.
This Agreement and the Notes may be amended, and the observance
of any term hereof or of the Notes may be waived (either
retroactively or prospectively), with (and only with) the written
consent of the Company and the Required Holders, except that (a) no
amendment or waiver of any of the provisions of Section 1, 2, 3, 4, 5,
6 or 21 hereof, or any defined term (as it is used therein), will be
effective as to you unless consented to by you in writing, and (b) no
such amendment or waiver may, without the written consent of the
holder of each Note at the time outstanding affected thereby,
(i) subject to the provisions of Section 12 relating to acceleration or
rescission, change the amount or time of any prepayment or payment
of principal of, or reduce the rate or change the time of payment or
method of computation of interest or of the Make-Whole Amount on,
the Notes, (ii) change the percentage of the principal amount of the
Notes the holders of which are required to consent to any such
amendment or waiver, or (iii) amend any of Sections 8, 11(a), 11(b),
12, 17 or 20.
17.2 Solicitation of Holders of Notes.
(a) Solicitation. The Company will provide each holder of the Notes
(irrespective of the amount of Notes then owned by it) with sufficient
information, sufficiently far in advance of the date a decision is
required, to enable such holder to make an informed and considered
decision with respect to any proposed amendment, waiver or consent
in respect of any of the provisions hereof or of the Notes. The
Company will deliver executed or true and correct copies of each
amendment, waiver or consent effected pursuant to the provisions of
this Section 17 to each holder of outstanding Notes promptly
following the date on which it is executed and delivered by, or
receives the consent or approval of, the requisite holders of Notes.
(b) Payment. The Company will not directly or indirectly pay or
cause to be paid any remuneration, whether by way of supplemental
or additional interest, fee or otherwise, or grant any security, to any
holder of Notes as consideration for or as an inducement to the
entering into by any holder of Notes or any waiver or amendment of
any of the terms and provisions hereof unless such remuneration is
concurrently paid, or security is concurrently granted, on the same
terms, ratably to each holder of Notes then outstanding even if such
holder did not consent to such waiver or amendment.
17.3 Binding Effect, etc.
Any amendment or waiver consented to as provided in this
Section 17 applies equally to all holders of Notes and is binding upon
them and upon each future holder of any Note and upon the
Company without regard to whether such Note has been marked to
indicate such amendment or waiver. No such amendment or waiver
will extend to or affect any obligation, covenant, agreement, Default
or Event of Default not expressly amended or waived or impair any
right consequent thereon. No course of dealing between the
Company and the holder of any Note nor any delay in exercising any
rights hereunder or under any Note shall operate as a waiver of any
rights of any holder of such Note. 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 this Agreement or the Notes, or have
directed the taking of any action provided herein or in the Notes to be
taken upon the direction of the holders of a specified percentage of
the aggregate principal amount of Notes then outstanding, Notes
directly or indirectly owned by the Company or any of its Affiliates
or Subsidiaries shall be deemed not to be outstanding.
18. NOTICES.
All notices and communications provided for hereunder shall be in
writing and sent (a) by telecopy if the sender on the same day sends a
confirming copy of such notice by a recognized overnight delivery
service (charges prepaid), or (b) by registered or certified mail with
return receipt requested (postage prepaid), or (c) by a recognized
overnight delivery service (with charges prepaid). Any such notice
must be sent:
(i) if to you or your nominee, to you or it at the address
specified for such communications in Schedule A, or at such
other address as you or it shall have specified to the Company
in writing,
(ii) if to any other holder of any Note, to such holder at such
address as such other holder shall have specified to the
Company in writing, or
(iii) if to the Company, to the Company at its address set forth
at the beginning hereof to the attention of Xxxxx Xxxxx,
Executive Vice President and Chief Financial Officer of the
Company, or at such other address as the Company shall have
specified to the holder of each Note in writing.
Notices under this Section 18 will be deemed given only when
actually received.
19. REPRODUCTION OF DOCUMENTS.
This Agreement and all documents relating thereto (except for the
Notes themselves), including, without limitation, (a) consents,
waivers and modifications that may hereafter be executed,
(b) documents received by you at the Closing (except the Notes
themselves), and (c) financial statements, certificates and other
information previously or hereafter furnished to you, may be
reproduced by you by any photographic, photostatic, microfilm,
microcard, miniature photographic or other similar process and you
may destroy any original document so reproduced. The Company
agrees and stipulates that, to the extent permitted by applicable law,
any such reproduction shall be admissible in evidence as the original
itself in any judicial or administrative proceeding (whether or not the
original is in existence and whether or not such reproduction was
made by you in the regular course of business) and any enlargement,
facsimile or further reproduction of such reproduction shall likewise
be admissible in evidence. This Section 19 shall not prohibit the
Company or any other holder of Notes from contesting any such
reproduction to the same extent that it could contest the original, or
from introducing evidence to demonstrate the inaccuracy of any such
reproduction.
20. CONFIDENTIAL INFORMATION.
For the purposes of this Section 20, "Confidential Information"
means information delivered to you by or on behalf of the Company
or any Subsidiary in connection with the transactions contemplated
by or otherwise pursuant to this Agreement that is proprietary in
nature and that was clearly marked or labeled or otherwise
adequately identified when received by you as being confidential
information of the Company or such Subsidiary, provided that such
term does not include information that (a) was publicly known or
otherwise known to you prior to the time of such disclosure,
(b) subsequently becomes publicly known through no act or omission
by you or any person acting on your behalf, (c) otherwise becomes
known to you other than through disclosure by the Company or any
Subsidiary or (d) constitutes financial statements delivered to you
under Section 7.1 that are otherwise publicly available. You will
maintain the confidentiality of such Confidential Information in
accordance with procedures adopted by you in good faith to protect
confidential information of third parties delivered to you, provided
that you may deliver or disclose Confidential Information to (i) your
directors, officers, employees, agents, attorneys and affiliates (to the
extent such disclosure reasonably relates to the administration of the
investment represented by your Notes), (ii) your financial advisors
and other professional advisors who agree to hold confidential the
Confidential Information substantially in accordance with the terms
of this Section 20, (iii) any other holder of any Note, (iv) any
Institutional Investor to which you sell or offer to sell such Note or
any part thereof or any participation therein (if such Person has
agreed in writing prior to its receipt of such Confidential Information
to be bound by the provisions of this Section 20), (v) any Person
from which you offer to purchase any security of the Company (if
such Person has agreed in writing prior to its receipt of such
Confidential Information to be bound by the provisions of this
Section 20), (vi) any federal or state regulatory authority having
jurisdiction over you, (vii) the National Association of Insurance
Commissioners or any similar organization, or any nationally
recognized rating agency that requires access to information about
your investment portfolio or (viii) any other Person to which such
delivery or disclosure may be necessary or appropriate (w) to effect
compliance with any law, rule, regulation or order applicable to you,
(x) in response to any subpoena or other legal process, (y) in
connection with any litigation to which you are a party or (z) if an
Event of Default has occurred and is continuing, to the extent you
may reasonably determine such delivery and disclosure to be
necessary or appropriate in the enforcement or for the protection of
the rights and remedies under your Notes and this Agreement. Each
holder of a Note, by its acceptance of a Note, will be deemed to have
agreed to be bound by and to be entitled to the benefits of this
Section 20 as though it were a party to this Agreement. On
reasonable request by the Company in connection with the delivery
to any holder of a Note of information required to be delivered to
such holder under this Agreement or requested by such holder (other
than a holder that is a party to this Agreement or its nominee), such
holder will enter into an agreement with the Company embodying the
provisions of this Section 20.
21. SUBSTITUTION OF PURCHASER.
You shall have the right to substitute any one of your affiliates or
subsidiaries (a "Permitted Purchaser") as the purchaser of the Notes
that you have agreed to purchase hereunder, by written notice to the
Company, which notice shall be signed by both you and such
Permitted Purchaser, shall contain such Permitted Purchaser's
agreement to be bound by this Agreement and shall contain a
confirmation by such Permitted Purchaser of the accuracy with
respect to it of the representations set forth in Section 6. Upon
receipt of such notice, wherever the word "you" is used in this
Agreement (other than in this Section 21), such word shall be deemed
to refer to such Permitted Purchaser in lieu of you. In the event that
such Permitted Purchaser is so substituted as a purchaser hereunder
and such Permitted Purchaser thereafter transfers to you all of the
Notes then held by such Permitted Purchaser, upon receipt by the
Company of notice of such transfer, wherever the word "you" is used
in this Agreement (other than in this Section 21), such word shall no
longer be deemed to refer to such Permitted Purchaser, but shall refer
to you, and you shall have all the rights of an original holder of the
Notes under this Agreement.
22. MISCELLANEOUS.
22.1 Successors and Assigns.
All covenants and other agreements contained in this Agreement by
or on behalf of any of the parties hereto bind and inure to the benefit
of their respective successors and assigns (including, without
limitation, any subsequent holder of a Note) whether so expressed or
not.
22.2 Payments Due on Non-Business Days.
Anything in this Agreement or the Notes to the contrary
notwithstanding, any payment of principal of or Make-Whole
Amount or interest on any Note that is due on a date other than a
Business Day shall be made on the next succeeding Business Day
without including the additional days elapsed in the computation of
the interest payable on such next succeeding Business Day.
22.3 Severability.
Any provision of this Agreement that is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without invalidating
the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall (to the full extent permitted
by law) not invalidate or render unenforceable such provision in any
other jurisdiction.
22.4 Construction.
Each covenant contained herein shall be construed (absent express
provision to the contrary) as being independent of each other
covenant contained herein, so that compliance with any one covenant
shall not (absent such an express contrary provision) be deemed to
excuse compliance with any other covenant. Where any provision
herein refers to action to be taken by any Person, or which such
Person is prohibited from taking, such provision shall be applicable
whether such action is taken directly or indirectly by such Person.
22.5 Counterparts.
This Agreement may be executed in any number of counterparts,
each of which shall be an original but all of which together shall
constitute one instrument. Each counterpart may consist of a number
of copies hereof, each signed by less than all, but together signed by
all, of the parties hereto.
22.6 Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES
SHALL BE GOVERNED BY, THE LAWS 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.
[Signatures on Following Pages]
If you are in agreement with the foregoing, please sign the form of
agreement on the accompanying counterpart of this Agreement and
return it to the Company, whereupon the foregoing shall become a
binding agreement between you and the Company.
Very truly yours,
PERFORMANCE FOOD GROUP COMPANY
By: /s/ Xxxxx X. Xxxxx
Xxxxx Xxxxx
Executive Vice President
and Chief Financial Officer
[Signatures Continued on Following Page]
SCHEDULE A TO NOTE PURCHASE AGREEMENT
Information Relating To Purchasers
SCHEDULE B TO NOTE PURCHASE AGREEMENT
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:
"Affiliate" shall mean any Person directly or indirectly controlling,
controlled by, or under direct or indirect common control with, the
Company, except a Subsidiary, or any officer, or any Person holding,
directly or indirectly, 10% or more of the Capital Stock of the Company.
A Person shall be deemed to control a corporation if such Person
possesses, directly or indirectly, the power to direct or cause the direction
of the management and policies of such corporations, whether through
the ownership of voting securities, by contract or otherwise.
"Acquired Subsidiary Debt" means Debt of a Subsidiary outstanding
at the time such Subsidiary becomes a Subsidiary, provided that such
Debt shall not have been incurred in contemplation of such Subsidiary
becoming a Subsidiary.
"Bank Credit Agreement" shall mean (i) that Revolving Credit
Agreement dated as of July 8, 1996 by and among the Company, the
Lenders named therein and First Union National Bank of Virginia, as
Agent, and as the same may be further modified, amended, renewed,
extended or supplemented from time to time and (ii) all replacements,
substitutions, refinancings and refundings thereof.
"Business Day" shall mean any day other than a Saturday, a Sunday or
a day on which commercial banks in New York City are required or
authorized to be closed.
"Capital Lease" means 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" shall mean, with respect to any Person, the outstanding
capital stock (including all common, preferred or other equity securities
and any options or warrants to purchase capital stock or other securities
exchangeable for or convertible into capital stock) of such Person.
"Capitalized Lease Obligation" shall mean, with respect to any Person
and a Capital Lease, the amount of the rental obligation which, under
GAAP, is or will be required to appear as a liability on a balance sheet of
such Person in accordance with such principles.
"Closing" is defined in Section 3.
"Code" shall mean the Internal Revenue Code of 1986, as amended
from time to time, and the rules and regulations promulgated thereunder
from time to time.
"Company" shall mean Performance Food Group Company, a
Tennessee corporation.
"Confidential Information" is defined in Section 20.
"Consolidated" shall mean the consolidated financial information of the
Company and its Subsidiaries under GAAP.
"Consolidated Assets" shall mean, at any time, the total assets of the
Company and its Subsidiaries determined on a Consolidated basis in
accordance with GAAP.
"Consolidated Debt" shall mean, at any time but without duplication,
the amount of Debt of the Company and its Subsidiaries determined on a
Consolidated basis in accordance with GAAP at such time.
"Consolidated EBITR" shall mean, with respect to any period,
Consolidated Net Income for such period plus all amounts deducted in
the computation thereof on account of (a) Fixed Charges and (b) taxes
imposed on or measured by income or excess profits.
"Consolidated Interest Expense" shall mean, for any period, total
interest expense (including without limitation, interest expense
attributable to Capital Leases in accordance with GAAP) of the
Company and its Subsidiaries, determined on a Consolidated basis in
accordance with GAAP.
"Consolidated Net Income" shall mean, for any period, the
consolidated net income (or loss) of the Company and its Subsidiaries for
such period (taken as a single accounting period) determined in
conformity with GAAP, but excluding therefrom (to the extent otherwise
included therein) (i) any extraordinary gains or losses, together with any
related provision for taxes, realized upon any sale of assets outside the
ordinary course of business, and (ii) undistributed net income of a
Subsidiary to the extent that such distribution is prohibited by agreement,
judgment or regulation.
"Consolidated Net Worth" shall mean, at any time, on a Consolidated
basis, shareholders' equity of the Company and its Subsidiaries at such
time determined in accordance with GAAP.
"Consolidated Total Capitalization" shall mean, at any time, the sum
of Consolidated Net Worth and Consolidated Debt.
"Debt" shall mean, without duplication, with respect to any Person, as
at any date of determination:
(i) all indebtedness for borrowed money which such Person has
directly or indirectly created, incurred or assumed (including,
without limitation, all Capitalized Lease Obligations);
(ii) all indebtedness, whether or not for borrowed money, secured
by any Lien on any property or asset owned or held by such
Person subject thereto, whether or not the indebtedness secured
thereby shall have been assumed by such Person;
(iii) any indebtedness, whether or not for borrowed money, with
respect to which such Person has become directly or indirectly
liable and which represents or has been incurred to finance the
purchase price (or a portion thereof) of any property or services
or business acquired by such Person, whether by purchase,
consolidation, merger or otherwise other than any payables and
accrued expenses in the ordinary course of business that are
current liabilities under GAAP; and
(iv) any indebtedness of any other Person of the character
referred to in clauses (i), (ii), or (iii) of this definition with respect
to which the Person whose Debt is being determined has become
liable (directly, indirectly, absolutely, contingently or otherwise)
by way of a Guarantee, and all principal or similar payments with
respect to any synthetic lease, end loaded lease financing or
similar off balance sheet financing for which the Person whose
Debt is being determined or any Subsidiary of such Person is
liable (directly, indirectly, absolutely, contingently, or otherwise)
including by way of a Guarantee (including without limitation, in
the case of the Company or a Subsidiary, any Guarantee by the
Company or a Subsidiary entered into in connection with the
Participation Agreement (and associated lease agreement)
referred to in Section 10.4 (ii) or in connection with any similar
instrument);
all as determined in accordance with GAAP; provided, however, Debt
shall not include endorsement of negotiable instruments for collection in
the ordinary course of business.
"Default" shall mean an event or condition the occurrence or existence
of which would, with the lapse of time or the giving of notice or both,
become an Event of Default.
"Default Rate" shall mean that rate of interest that is from time to time
the greater of (i) 2% per annum above the rate of interest stated in clause
(a) of the first paragraph of the Notes or (ii) 2% over the rate of interest
publicly announced by The Chase Manhattan Bank as its "base" or
"prime" rate, such rate to change for purposes of determining the Default
Rate when and as changes therein are made by such bank; provided that
in no event shall the Default Rate at any time be greater than the
maximum rate permitted by applicable law.
"Environmental Laws" shall mean 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" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time, and the rules and regulations
promulgated thereunder from time to time in effect.
"ERISA Affiliate" shall mean 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" shall mean the Securities Exchange Act of 1934, as amended.
"Fair Market Value" shall mean, at any time, the sale value of property
that would be realized in an arm's length sale at such time between an
informed and willing buyer, and an informed and willing seller, under no
compulsion to buy or sell, respectively.
"Fixed Charges" for any period shall mean (i) all interest and
amortization of debt discount and expense on all Debt of the Company
and its Subsidiaries, on a Consolidated basis, paid or payable during such
period (including the imputed interest factor in rentals under all Capital
Leases) and (ii) rent expense incurred under operating leases of the
Company and its Subsidiaries, determined on a Consolidated basis for
such period.
"GAAP" shall mean generally accepted accounting principles as in
effect from time to time in the United States of America.
"Governmental Authority" shall mean
(a) the government of
(i) the United States of America or any State or other
political subdivision thereof, or
(ii) any jurisdiction in which the Company or any
Subsidiary conducts all or any part of its business, or
which asserts jurisdiction over any properties of the
Company or any Subsidiary, or
(b) any entity exercising executive, legislative, judicial,
regulatory or administrative functions of, or pertaining to, any such
government.
"Guarantee" shall mean, with respect to any Person, any direct or
indirect liability, contingent or otherwise, of such Person with respect to
any Debt, lease, dividend, letter of credit, or other obligation of another,
including, without limitation, any such obligation directly or indirectly
guaranteed, endorsed (otherwise than for collection or deposit in the
ordinary course of business) or discounted or sold with recourse by such
Person, or in respect of which such Person is otherwise directly or
indirectly liable, including, without limitation, any such obligation in
effect guaranteed by such Person through any agreement (contingent or
otherwise) to purchase, repurchase or otherwise acquire such obligation
or any security therefor, or to provide funds for the payment or discharge
of such obligation (whether in the form of loans, advances, stock
purchases, capital contributions or otherwise) in any such case if the
purpose or intent of such agreement is to provide assurance that such
obligation will be paid or discharged, or that any agreements relating
thereto will be complied with, or that the holders of such obligation will
be protected against loss in respect thereof. The amount of any
Guarantee shall be equal to the outstanding principal amount (or
principal equivalent) of the obligation guaranteed or such lesser amount
to which the maximum exposure of the guarantor shall have been
specifically limited.
"Hazardous Material" shall mean 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).
"holder" shall mean, 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.
"Income Available for Fixed Charges" for any period
shall mean the sum of (a) Consolidated Net Income, plus (b) (to the
extent deducted in determining such Consolidated Net Income) (i) all
provisions for any Federal, state or other income taxes made by the
Company and its Subsidiaries, (ii) Fixed Charges, and (iii) depreciation
and amortization expense, all as calculated for such period.
"Institutional Investor" shall mean (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.
"Lien" shall mean, with respect to any Person, any mortgage, lien,
pledge, charge, security interest or other encumbrance, or any interest or
title of any vendor, lessor, lender or other secured party to or of such
Person under any conditional sale or other title retention agreement or
Capital Lease, upon or with respect to any property or asset of such
Person (including in the case of stock, stockholder agreements, voting
trust agreements and all similar arrangements).
"Make-Whole Amount" is defined in Section 8.6.
"Material" shall mean 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" shall mean a material adverse effect on (a)
the business, operations, affairs, financial condition, assets, properties or
prospects of the Company and its Subsidiaries taken as a whole, or (b)
the ability of the Company to perform its obligations under this
Agreement and the Notes, or (c) the validity or enforceability of this
Agreement or the Notes.
"Material Subsidiary" shall mean each Subsidiary of the Company that
has or acquires total assets in excess of $1,000,000 or that accounted for
or produced more than 5% of the Consolidated EBITR of the Company
on a Consolidated basis during any of the three most recently completed
fiscal years of the Company as of the date of determination.
"Memorandum" is defined in Section 5.3.
"Multiemployer Plan" shall mean any Plan that is a "multiemployer
plan" (as such term is defined in section 4001(a)(3) of ERISA).
"Notes" is defined in Section 1.
"Officer's Certificate" shall mean a certificate of a Senior Financial
Officer or of any other officer of the Company whose responsibilities
extend to the subject matter of such certificate.
"Other Agreements" is defined in Section 2.
"Other Purchasers" is defined in Section 2.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred
to and defined in ERISA or any successor thereto.
"Person" shall mean an individual, corporation, company, limited
liability company, voluntary association, partnership, limited liability
partnership, trust, unincorporated organization or joint venture or a
government or any agency, instrumentality or political subdivision
thereof, and for the purpose of the definition of "ERISA Affiliate", a
trade or business.
"Plan" shall mean 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" shall mean any class of Capital Stock of a
corporation that is preferred over any other class of Capital Stock of such
corporation as to the payment of dividends or the payment of any amount
upon liquidation or dissolution of such corporation.
"Priority Debt" shall mean (i) all Debt (other than
Acquired Subsidiary Debt) and Preferred Stock of a Subsidiary and (ii)
all Debt of the Company which is secured by Liens not otherwise
allowed under any of clauses (i) through (xiii) of section 10.4.
"property" or "properties" shall mean, unless otherwise specifically
limited, real or personal property of any kind, tangible or intangible,
xxxxxx or inchoate.
"QPAM Exemption" shall mean Prohibited Transaction Class
Exemption 84-14 issued by the United States Department of Labor.
"Required Holders" shall mean the holders of at least 51% of the
principal amount of the Notes at the time outstanding.
"Responsible Officer" shall mean 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" shall mean the Securities Act of 1933, as amended
from time to time.
"Senior Financial Officer" shall mean the chief financial officer,
principal accounting officer, treasurer or comptroller of the Company.
"Subsidiary" means, as to any Person, any corporation, association or
other business entity in which such Person or one or more of its
Subsidiaries or such Person and one or more of its Subsidiaries owns
sufficient equity or voting interests to enable it or them (as a group)
ordinarily, in the absence of contingencies, to elect a majority of the
directors (or Persons performing similar functions) of such entity, and
any partnership or joint venture if more than a 50% interest in the profits
or capital thereof is owned by such Person or one or more of its
Subsidiaries or such Person and one or more of its Subsidiaries (unless
such partnership can and does ordinarily take major business actions
without the prior approval of such Person or one or more of its
Subsidiaries). Unless the context otherwise clearly requires, any
reference to a "Subsidiary" is a reference to a Subsidiary of the
Company.
"Wholly-Owned Subsidiary" means, at any time, any Subsidiary one
hundred percent (100%) of all of the equity interests (except directors'
qualifying shares) and voting interests of which are owned by any one or
more of the Company and the Company's other Wholly-Owned
Subsidiaries at such time.
