Exhibit 4C
XXXXXXXX XXXXX, INC.
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
December 18, 1998
TO EACH OF THE PURCHASERS LISTED IN
THE ATTACHED SCHEDULE A:
Ladies and Gentlemen:
Xxxxxxxx Xxxxx, Inc., a Delaware corporation (the "COMPANY"), agrees
with you as follows:
. AUTHORIZATION OF NOTES. The Company will authorize the issue and sale of
$145,000,000 aggregate principal amount of its 7.06% Senior Notes due December
18, 2008 (the "1998 NOTES"). The terms "NOTE" and "NOTES" as used herein shall
include each 1998 Note delivered pursuant to any provision of this Agreement and
each Note delivered in substitution or exchange for any such Note pursuant to
any such provision. The form of each Note shall be in the form of Exhibit 1
hereto.
The term "1998 Note" as used herein shall include notes issued in
substitution therefor pursuant to Section 13 of this Agreement or the Other
Agreements (as hereinafter defined). 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.
. SALE AND PURCHASE OF NOTES. Subject to the terms and conditions of this
Agreement, the Company will issue and sell to you (also sometimes referred to
herein as a "PURCHASER") and you will purchase from the Company, at the Closing
provided for in Section 3, Notes in the principal amount 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 promissory notes in the principal amount
specified opposite its name in Schedule A. Your obligation 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.
. CLOSING. The sale and purchase of the Notes to be purchased by you and the
Other Purchasers shall occur at the offices of King & Xxxxxxxx, 0000 Avenue of
the Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 a.m., New York City time, at a
closing (the "Closing") on December 18, 1998 or on such other Business Day
thereafter on or prior to December 31, 1998 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 $100,000 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 3750332999 at NationsBank of Texas, N.A. (ABA# 111-000-012),
reference $145,000,000 7.06% Senior Notes Dues 2008. 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.
. CONDITIONS TO CLOSING. Your obligation to purchase and pay for any Notes to be
sold to you at Closing is subject to the fulfillment to your satisfaction, prior
to or at the Closing, of the following conditions:
.. 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.
.. 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.
.. COMPLIANCE CERTIFICATES. () 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.
() SECRETARY'S CERTIFICATE. The Company shall have delivered to you a
certificate certifying as to the resolutions attached thereto and other
corporate proceedings relating to the authorization, execution and delivery of
the Notes, this Agreement and the Other Agreements.
.. OPINIONS OF COUNSEL. You shall have received opinions in form and
substance satisfactory to you, dated the date of the Closing () from each of
Weil, Gotshal & Xxxxxx LLP and from the General Counsel or Assistant General
Counsel of 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 () from King & Spalding, your
special counsel in connection with such transactions, substantially in the form
set forth in Exhibit 4.4(b) and covering such other matters incident to such
transactions as you may reasonably request.
.. PURCHASE PERMITTED BY APPLICABLE LAW, ETC. On the date of the
Closing your purchase of Notes shall () 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, () 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 () not subject you to any tax, penalty or
liability under or pursuant to any applicable law or regulation, which law or
regulation was not 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.
.. SALE OF OTHER NOTES. Contemporaneously with the Closing, the
Company shall sell to the Other Purchasers and the Other Purchasers shall
purchase the promissory notes to be purchased by them at the Closing as
specified in Schedule A (the "Other Notes").
.. PAYMENT OF SPECIAL COUNSEL FEES. Without limiting the provisions of
Section 15.1, the Company shall have paid on or before such Closing, the
reasonable 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 such Closing.
.. 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 to be purchased at the Closing.
.. CHANGES IN CORPORATE STRUCTURE. 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.
.. 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.
. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents and
warrants to you that:
.. 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 would 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.
.. 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 () applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally and () general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
.. DISCLOSURE. The Company, through its agent, Wachovia Capital
Markets, Inc., has delivered to you and each Other Purchaser a copy of a Private
Placement Memorandum, dated November 1998 (the "MEMORANDUM"), relating to the
transactions contemplated hereby. This Agreement, the Memorandum 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 September 28, 1997, there has been no
change in the financial condition, operations, business or properties of the
Company or any of its Subsidiaries except changes that individually or in the
aggregate would 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. The projections contained in the
Memorandum are based on the good faith estimates and assumptions of the
management of the Company which has no reason to believe that such projections
are not reasonable; it being recognized, however, that projections as to future
events are not to be viewed as fact and that actual results during the period or
periods covered by any such projections probably will differ from the projected
results and that the differences may be material.
.. ORGANIZATION AND OWNERSHIP OF SHARES OF SUBSIDIARIES. () Schedule
5.4 is (except as noted therein) a complete and correct list 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.
() All of the outstanding shares of capital stock or similar equity
interests of each Subsidiary shown in Schedule 5.15 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 (except as otherwise disclosed in Schedule 5.4). Except as set forth
in Schedule 5.4, all of the entities set forth on Schedule 5.4 are consolidated
with the Company's financial statements in accordance with GAAP.
() 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 would 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.
() No Subsidiary is a party to, or otherwise subject to any legal
restriction or any agreement (other than this Agreement, the agreements listed
on Schedule 5.4 and customary limitations imposed by corporate law statutes)
restricting the ability of such Subsidiary to pay dividends out of profits or
make any other similar distributions of profits to the Company or any of its
Subsidiaries that owns outstanding shares of capital stock or similar equity
interests of such Subsidiary.
.. 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).
.. COMPLIANCE WITH LAWS, OTHER INSTRUMENTS, ETC. The execution,
delivery and performance by the Company of this Agreement and the Notes will not
() contravene, result in any breach of, 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, () 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 ()
violate any provision of any statute or other rule or regulation of any
Governmental Authority applicable to the Company or any Subsidiary.
.. 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.
.. LITIGATION; OBSERVANCE OF STATUTES AND ORDERS. () 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, would reasonably be expected to have a
Material Adverse Effect.
() 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, would reasonably be expected to have a Material Adverse Effect.
.. TAXES. The Company and its Subsidiaries have filed all tax returns
that are required to have been filed in any jurisdiction, and have paid all
taxes shown to be due and payable on such returns and all other taxes and
assessments levied upon them or their properties, assets, income or franchises,
to the extent such taxes and assessments have become due and payable and before
they have become delinquent, except for any taxes and assessments () the amount
of which is not individually or in the aggregate Material or () 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 liabilities of the Company and its Subsidiaries have been determined
by the Internal Revenue Service and paid for all fiscal years up to and
including the fiscal year ended September 1993.
.. TITLE TO PROPERTY; LEASES. The Company and its Subsidiaries have
good and sufficient title to their respective Material properties, including all
such properties reflected in the most recent audited balance sheet referred to
in Section 5.5 or purported to have been acquired by the Company or any
Subsidiary after said date (except as sold or otherwise disposed of in the
ordinary course of business), in each case free and clear of Liens prohibited by
this Agreement, except for those defects in title and Liens that, individually
or in the aggregate, would not have a Material Adverse Effect. All Material
leases are valid and subsisting and are in full force and effect in all material
respects.
.. LICENSES, PERMITS, ETC. 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, except for those conflicts that, individually or in the aggregate, would
not have a Material Adverse Effect.
.. COMPLIANCE WITH ERISA. () The Company and each ERISA Affiliate have
operated and administered each Plan in compliance with all applicable laws
except for such instances of noncompliance as have not resulted in and could not
reasonably be expected to result in a Material Adverse Effect. Neither the
Company nor any ERISA Affiliate has incurred any liability pursuant to Title I
or IV of ERISA or the penalty or excise tax provisions of the Code relating to
employee benefit plans (as defined in Section 3 of ERISA), and no event,
transaction or condition has occurred or exists that would 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.
() 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 in the case of any single Plan or in the
aggregate for all Plans by an amount not to exceed $10,000,000. 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 Sections
3(26) and (27), respectively, of ERISA.
() 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.
() 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.
() 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(e) is made in reliance
upon and subject to () 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 () 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.
.. 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 25 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.
.. 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 207), 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.
.. EXISTING INDEBTEDNESS. The audited financial statements dated as of
September 28, 1997 disclose all outstanding Indebtedness of the Company and its
Subsidiaries as of such date, and except as set forth in Schedule 5.15, there
has been no Material change in the amounts, interest rates, sinking funds,
installment payments or maturities of the Indebtedness of the Company or its
Subsidiaries. Neither the Company nor any Subsidiary is in default and no waiver
of default is currently in effect, in the payment of any principal or interest
on any Indebtedness of the Company or such Subsidiary and no event or condition
exists with respect to any Indebtedness of the Company or any Subsidiary that
would permit (or that with notice or the lapse of time, or both, would permit)
one or more Persons to cause such Indebtedness to become due and payable before
its stated maturity or before its regularly scheduled dates of payment.
.. 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.
.. ENVIRONMENTAL MATTERS. Neither the Company nor any Subsidiary has
knowledge of any claim or has received any notice of any claim, and neither the
Company nor any Subsidiary has any knowledge that any 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,
() 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;
() 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
() 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.
.. 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.
. REPRESENTATIONS OF THE PURCHASER.
.. 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.
.. 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:
() if you are an insurance company, the Source does not
include assets allocated to any separate account maintained by you in
which any employee benefit plan (or its related trust) has any
interest, other than a separate account that is maintained solely in
connection with your fixed contractual obligations under which the
amounts payable, or credited, to such plan and to any participant or
beneficiary of such plan (including any annuitant) are not affected in
any manner by the investment performance of the separate account; or
() the Source is either () an insurance company pooled
separate account, within the meaning of Prohibited Transaction
Exemption ("PTE") 90-1 (issued January 29, 1990), or () 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
() 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 () the identity of such QPAM and () 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
() the Source is a governmental plan; or
() 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
() the Source does not include assets of any employee
benefit plan, other than a plan exempt from the coverage of ERISA.
As used in this Section 6.2, the terms "employee benefit plan", "governmental
plan", "party in interest" and "separate account" shall have the respective
meanings assigned to such terms in Section 3 of ERISA.
. INFORMATION AS TO COMPANY.
.. FINANCIAL AND BUSINESS INFORMATION. The Company shall
deliver to each holder of Notes that is an Institutional Investor:
() QUARTERLY STATEMENTS. Within 45 days (or, if an extension
for filing its Form 10-Q has been made by the Company with the
Securities and Exchange Commission, within 50 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,
() a consolidated balance sheet of the Company
and its Subsidiaries as at the end of such quarter, and
() consolidated statements of income, changes
in shareholders' equity and cash flows of the Company
and its Subsidiaries, for such quarter and (in the
case of the second and third quarters) for the portion
of the fiscal year ending with such quarter,
setting forth in each case in comparative form the figures for the
corresponding periods in the previous fiscal year, all in reasonable
detail, prepared in accordance with GAAP applicable to quarterly
financial statements generally, and certified 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 report shall
contain the items set forth above;
() ANNUAL STATEMENTS. Within 90 days (or, if an
extension for filing its Form 10-K has been made by the Company with
the Securities and Exchange Commission within 105 days) after the end
of each fiscal year of the Company, duplicate copies of,
() a consolidated balance sheet of the Company
and its Subsidiaries, as at the end of such year, and
() 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 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, 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 shall be deemed to satisfy the
requirements of this Section 7.1(b) so long as such report shall
contain the items set forth above;
() SEC AND OTHER REPORTS. Promptly upon their becoming
available, one copy of () each financial statement, report, notice or
proxy statement sent by the Company or any Subsidiary to public
securities holders generally, and () each regular or periodic report,
each registration statement that shall have become effective (without
exhibits except as expressly requested by such holder), and each final
prospectus and all amendments thereto filed by the Company or any
Subsidiary with the Securities and Exchange Commission;
() 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, 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;
() ERISA MATTERS. Promptly, and in any event within five days
after a Responsible Officer becoming aware of any of the following, a
written notice setting forth the nature thereof and the action, if any,
that the Company or an ERISA Affiliate proposes to take with respect
thereto:
() 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
() 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
reasonably result in the incurrence of any liability by the
Company or any ERISA Affiliate pursuant to Title I or IV of
ERISA or the penalty or excise tax provisions of the Code
relating to employee benefit plans, or in the imposition of
any Lien on any of the rights, properties or assets of the
Company or any ERISA Affiliate pursuant to Title I or IV of
ERISA or such penalty or excise tax provisions, if such
liability or Lien, taken together with any other such
liabilities or Liens then existing, would reasonably be
expected to have a Material Adverse Effect; and
() MANAGEMENT REPORTS. Promptly upon receipt thereof, a
copy of each other report (including, without limitation, management
letters) submitted to the Company or any Restricted Subsidiary by
independent accountants in connection with any annual audit made by
them of the books of the Company or any Restricted Subsidiary or
special audit by them of the books of the Company; and
() 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.
.. OFFICER'S/ACCOUNTANT'S CERTIFICATE.
7.2(). Each set of financial statements delivered to a holder of
Notes pursuant to Section 7.1(a) or Section 7.1(b) hereof shall be accompanied
by a certificate of a Senior Financial Officer setting forth:
() 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(A), 10.2(B),
10.3 and 10.7 hereof 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
() 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 (including, without limitation,
any such event or condition resulting from the failure of the Company
or any Subsidiary to comply with any Environmental Law), specifying the
nature and period of existence thereof and what action the Company
shall have taken or proposes to take with respect thereto.
7.2(). Together with each delivery of financial statements required by
Section 7.1(b) above, the Company will deliver to each Purchaser a certificate
of the accountants preparing such statements stating that, in making the audit
necessary for their report on such financial statements, they have obtained no
knowledge of any Event of Default or Default, or, if they have obtained
knowledge of any Event of Default or Default, specifying the nature and period
of existence thereof. Such accountants, however, shall not be liable to anyone
by reason of their failure to obtain knowledge of any Event of Default or
Default which would not be disclosed in the course of an audit conducted in
accordance with generally accepted auditing standards.
.. INSPECTION. The Company shall permit the representatives of
each holder of Notes that is an Institutional Investor:
() 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
() 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.
. PAYMENT OF THE NOTES.
.. PAYMENTS AT MATURITY. On December 18, 2008, the Company
shall pay the entire outstanding principal amount of outstanding Notes and the
Other Notes in a single installment at par and without payment of the Make-Whole
Amount or any premium.
.. OPTIONAL PREPAYMENTS WITH MAKE-WHOLE AMOUNT. The Company may, at its
option, upon notice as provided below, prepay on any Business Day, or from time
to time any part of, the Notes and the Other Notes, in an amount not less than
10% of the aggregate principal amount of the Notes and the Other Notes then
outstanding in the case of a partial prepayment, at 100% of the principal amount
so prepaid, plus the Make-Whole Amount determined for the prepayment date with
respect to such principal amount. The Company will give each holder of Notes and
the Other Notes written notice of each optional prepayment under this Section
8.2 not less than 15 days and not more than 60 days prior to the date fixed for
such prepayment. Each such notice shall specify such date, the aggregate
principal amount of the Notes and the Other 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. Two Business Days prior to such prepayment, the Company
shall deliver to each holder of Notes a certificate of a Senior Financial
Officer specifying the calculation of such Make-Whole Amount as of the specified
prepayment date.
.. 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 of the Notes at the time outstanding in proportion, as
nearly as practicable, to the respective unpaid principal amounts thereof not
theretofore called for prepayment.
.. MATURITY; SURRENDER, ETC. In the case of each prepayment of Notes
pursuant to this Section 8, the principal amount of each Note to be prepaid
shall mature and become due and payable on the date fixed for such prepayment,
together with interest on such principal amount accrued to such date and the
applicable Make-Whole Amount, if any. From and after such date, unless the
Company shall fail to pay such principal amount when so due and payable,
together with the interest and Make-Whole Amount, if any, as aforesaid, interest
on such principal amount shall cease to accrue. Any Note paid or prepaid in full
shall be surrendered to the Company and canceled and shall not be reissued, and
no Note shall be issued in lieu of any prepaid principal amount of any Note.
.. PURCHASE OF NOTES. The Company will not, and will not permit any
Affiliate, 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 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.
.. OFFER TO PREPAY NOTES IN THE EVENT OF A CHANGE IN CONTROL.
(i) NOTICE OF IMPENDING CHANGE IN CONTROL. The Company shall
give to each holder of Notes prompt written notice of any impending
Change in Control for which it has received a written offer or notice.
(ii) NOTICE OF OCCURRENCE OF CHANGE IN CONTROL. The Company
will, within five Business Days after any Responsible Officer has
knowledge of the occurrence of any Change in Control, give written
notice of such Change in Control to each holder of Notes. If a Change
in Control has occurred, such notice shall contain and constitute an
offer to prepay the Notes as described in clause (iii) of this
paragraph 8.6 and shall be accompanied by the certificate described in
clause (vi) hereof.
(iii) OFFER TO PREPAY NOTES. The offer to prepay Notes
contemplated by the foregoing clause (ii) shall be an offer to prepay,
in accordance with and subject to this paragraph 8.6, all, but not less
than all, the Notes held by each holder (in this case only, "holder" in
respect of any Note registered in the name of a nominee for a disclosed
beneficial owner shall mean such beneficial owner) on a date specified
in such offer (the "PROPOSED PREPAYMENT DATE"). Such Proposed
Prepayment Date shall be not less than 30 days and not more than 90
days after the date of such offer (if the Proposed Prepayment Date
shall not be specified in such offer, the Proposed Prepayment Date
shall be the 60th day after the date of such offer).
(iv) REJECTION, ACCEPTANCE. A holder of Notes may accept the
offer to prepay made pursuant to this paragraph 8.6 by causing a notice
of such acceptance to be delivered to the Company within 60 days after
receipt of the notice required pursuant to clause (ii) of this
paragraph 8.6. A failure by a holder of Notes to respond to an offer to
prepay made pursuant to this paragraph 8.6 within such 60-day period
shall be deemed to constitute a rejection of such offer by such holder.
(v) PREPAYMENT. Prepayment of the Notes to be prepaid pursuant
to this paragraph 8.6 shall be at 100% of the principal amount of such
Notes, plus the Make-Whole Amount, if any, determined for the date of
prepayment with respect to such principal amount, together with
interest on such Notes accrued to the date of prepayment. The
prepayment shall be made on the Proposed Prepayment Date.
(vi) OFFICER'S CERTIFICATE. Each offer to prepay the Notes
pursuant to this paragraph 8.6 shall be accompanied by a certificate,
executed by a Responsible Officer of the Company and dated the date of
such offer, specifying: () the Proposed Prepayment Date; () that such
offer is made pursuant to this paragraph 8.6; () the principal amount
of each Note offered to be prepaid; () the interest that would be due
on each Note offered to be prepaid, accrued to the Proposed Prepayment
Date; () that the conditions of this paragraph 8.6 have been fulfilled;
and () in reasonable detail, the nature and date of the Change in
Control.
.. 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% over the yield to maturity implied by ()
the yields reported, as of 10:00 A.M. (New York City time) on the
second Business Day preceding the Settlement Date with respect to such
Called Principal, on page C4 of the Bloomberg Financial Markets Service
(or, if not available, any other nationally recognized trading screen
reporting on-line intra-day trading in United States government
securities) 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 () if such yields are not reported as of
such time or the yields reported as of such time are not ascertainable,
the Treasury Constant Maturity Series Yields reported, for the latest
day for which such yields have been so reported as of the second
Business Day preceding the Settlement Date with respect to such Called
Principal, in Federal Reserve Statistical Release H.15 (519) (or any
comparable successor publication) for actively traded U.S. Treasury
securities having a constant maturity equal to the Remaining Average
Life of such Called Principal as of such Settlement Date. Such implied
yield will be determined, if necessary, by () converting U.S. Treasury
xxxx quotations to bond equivalent yields in accordance with accepted
financial practice and () interpolating linearly between () the
actively traded U.S. Treasury security with the maturity closest to and
greater than the Remaining Average Life and () the actively traded U.S.
Treasury security with the duration 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 () such Called Principal into () 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.
. AFFIRMATIVE COVENANTS. The Company covenants that so long as any of
the Notes are outstanding:
.. COMPLIANCE WITH LAW. The Company will and will cause each of its
Subsidiaries to comply with all laws, ordinances or governmental rules or
regulations to which each of them is subject, including, without limitation,
Environmental Laws, and will obtain and maintain in effect all licenses,
certificates, permits, franchises and other governmental authorizations
necessary to the ownership of their respective properties or to the conduct of
their respective businesses, in each case to the extent necessary to ensure that
non-compliance with such laws, ordinances or governmental rules or regulations
or failures to obtain or maintain in effect such licenses, certificates,
permits, franchises and other governmental authorizations would not reasonably
be expected, individually or in the aggregate, to have a materially adverse
effect on the business, operations, affairs, financial condition, properties or
assets of the Company and its Subsidiaries taken as a whole.
.. INSURANCE. The Company will and will cause each of its Restricted
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.
.. MAINTENANCE OF PROPERTIES. The Company will and will cause each of
its Restricted 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 Restricted 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 would not, individually or in the aggregate,
have a materially adverse effect on the business, operations, affairs, financial
condition, properties or assets of the Company and its Subsidiaries taken as a
whole.
.. PAYMENT OF TAXES AND CLAIMS. The Company will and will cause each of
its Subsidiaries to file all tax returns required to be filed in any
jurisdiction and to pay and discharge all taxes shown to be due and payable on
such returns and all other taxes, assessments, governmental charges, or levies
imposed on them or any of their properties, assets, income or franchises, to the
extent such taxes 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 () 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 () the nonpayment of all such taxes and
assessments in the aggregate would not reasonably be expected to have a
materially adverse effect on the business, operations, affairs, financial
condition, properties or assets of the Company and its Subsidiaries taken as a
whole
.. CORPORATE EXISTENCE, ETC. The Company will at all times preserve and
keep in full force and effect its corporate existence. Subject to Sections 10.6
and 10.7, the Company will at all times preserve and keep in full force and
effect the corporate existence of each of its Subsidiaries (unless merged or
liquidated 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 would not, individually or
in the aggregate, have a materially adverse effect on the business, operations,
affairs, financial condition, properties or assets of the Company and its
Subsidiaries taken as a whole.
.. COVENANT TO SECURE NOTE EQUALLY. The Company covenants that, if it
or any Restricted 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 (unless prior written consent to the
creation or assumption thereof shall have been obtained pursuant to Section
17.1), it 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
Indebtedness thereby secured so long as any such other Indebtedness shall be so
secured. However, the compliance by the Company of this Section 9.6 shall not
constitute a waiver of, or cure for, any violation of Section 10.4 hereof.
. NEGATIVE COVENANTS. The Company covenants that so long as any of the
Notes are outstanding:
.. EBITDAR TO FIXED CHARGE COVERAGE RATIO. The Company shall
not permit at any time the ratio of EBITDAR to Fixed Charges to be less than 3.0
to 1.0.
.. DEBT TO CAP/PRIORITY DEBT.
10.2(A). DEBT TO CAP. The Company shall not permit at any time Total
Debt to exceed the percentage of Consolidated Total Capitalization set forth
below opposite the applicable percentage of Consolidated Total Assets sold as
part of the securitization program described in Section 10.7(b):
Percentage of Percentage
Consolidated Total Assets
less than 10% 60%
AE10% 55%
10.2(B). PRIORITY DEBT. The Company shall not, as of the end of each
fiscal quarter during which any Notes are outstanding, permit the aggregate
outstanding amount of Priority Debt to exceed 25% of Consolidated Net Worth at
such time.
.. RESTRICTED PAYMENTS. The Company shall not, and shall not permit any
Restricted Subsidiary, to declare, make, pay or become obligated to make or pay,
any Restricted Payment (other than any Restricted Payment to the Company or a
Wholly-Owned Restricted Subsidiary) or any Restricted Investment unless, at the
time and immediately after giving effect to such Restricted Payment or
Restricted Investment, no Default or Event of Default would exist or be
continuing.
.. LIENS. The Company shall not, and shall not permit any
Restricted Subsidiary to, create, assume or suffer to exist any Lien upon any of
its respective property or assets, whether now owned or hereafter acquired,
except:
() Liens existing on the Closing and specified on
Schedule 10.4;
() Liens () for taxes (including ad valorem and
property taxes) and assessments or governmental charges or levies not
yet due or () for taxes due or () resulting from any judgment or award,
and in the case of clause (B) and (C), are being actively contested
in good faith by appropriate proceedings and with respect to which
adequate reserves under GAAP are being maintained;
() landlord liens and statutory liens of carriers,
warehousemen, mechanics, material men and other liens imposed by law,
created 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 under GAAP are being
maintained, and which were not incurred in connection with the
borrowing of money;
() Liens 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,
bids, leases, government contracts, performance and return of money
bonds and similar obligations;
() easements, rights-of-way, zoning and similar
restrictions and other similar charges or encumbrances not materially
interfering with the ordinary conduct of the business of the Company or
any of its Restricted Subsidiaries;
() other Liens incidental to the conduct of its business or
the ownership of its property and assets which were not incurred in
connection with the borrowing of money, and which do not in the
aggregate materially detract from the value of property or assets of
the Company and its Restricted 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 Restricted Subsidiaries;
() leases, subleases, licenses and sublicenses
granted to third parties not interfering in any material respect with
the business of the Company or any of its Restricted Subsidiaries;
() Liens on property or assets of a Restricted Subsidiary
of the Company to secure obligations of such Subsidiary to the
Company or another Wholly-Owned Restricted Subsidiary;
() 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);
() Liens on receivables (and intangibles related thereto)
of the Company and its Restricted Subsidiaries granted pursuant to
Maturity Factoring Arrangements; and
() other Liens in addition to those described in subparagraphs
(i) through (ix) above and securing Indebtedness of the Company and any
Restricted Security; provided, however, that after giving effect to the
Indebtedness secured by such Liens, the Company shall be in compliance
with Section 10.2(B) hereof.
.. TRANSACTIONS WITH AFFILIATES. The Company will not and will not
permit any Restricted Subsidiary to enter into directly or indirectly any
Material transaction or Material group of related transactions (including
without limitation the purchase, lease, sale or exchange of properties of any
kind or the rendering of any service) with any Affiliate (other than the Company
or another Subsidiary), except: () pursuant to the reasonable requirements of
the Company's or such Subsidiary's business and upon fair and reasonable terms
no less favorable to the Company or such Subsidiary than would be obtainable in
a comparable arm's-length transaction with a Person not an Affiliate and () any
stock issuances that may occur under the Rights Agreement dated as of August 23,
1990, as amended prior to the Closing, between the Company and Wachovia Bank of
North Carolina, N.A., as Rights Agent or stock redemptions that may occur under
the Stockholders' Agreement dated as of June 22, 1990, as amended prior to the
Closing, among the Company, Xxxxxxx Xxxxxxx, Xxxxxx Xxxxxxxxx and Xxxxxxx Xxxxx
or the Stockholders Agreement dated as of April 30, 1991, as amended prior to
the Closing, among the Company, Xxxxxxx Xxxxxxx and Xxxxxxx Xxxxx (without
giving effect to any amendment, supplement or modification which would
materially change the terms and provisions of any of the foregoing to which the
Required Holders have not consented).
.. MERGER, CONSOLIDATION, SALES OF SUBSTANTIALLY ALL ASSETS. The
Company shall not, and shall not permit any Restricted Subsidiary to, merge,
consolidate or exchange shares with any other Person or sell, assign, convey,
transfer or lease substantially all of its assets in a single transaction or
series of transactions to any Person, except that:
() any Restricted Subsidiary may merge or consolidate with and
into the Company or with a Wholly-Owned Restricted Subsidiary or, if
not a Wholly-Owned Subsidiary, a Restricted 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;
() a Restricted Subsidiary may sell or transfer substantially
all of its assets to the Company or to a Wholly-Owned Restricted
Subsidiary or, if not a Wholly-Owned Restricted Subsidiary, a
Restricted Subsidiary where the direct or indirect ownership interest
of the Company in such sold or transferred assets is not reduced or
diluted;
() a Restricted Subsidiary may sell or transfer substantially
all of its assets to a Person other than the Company or a Restricted
Subsidiary so long as: (x) if such sale or transfer constitutes an
Asset Sale, the Restricted Subsidiary complies with Section 10.7 hereof
with respect to such Asset Sale and (y) such sale or transfer does not
constitute a sale or transfer of substantially all of the assets of the
Company; and
() the Company may merge or consolidate with any other
corporation, or sell, assign, convey, transfer or lease all or
substantially all of the assets of the Company, so long as:
() the surviving corporation (or the corporation to
which such sale, assignment, transfer, conveyance or lease is
made (the "transferee")) shall be the Company or another
corporation organized under the laws of the United States or a
State thereof or the District of Columbia;
() the surviving (or transferee) corporation
(if not the Company) shall assume the obligations of the
Company hereunder pursuant to an agreement reasonably
acceptable to the Required Holders; and
() immediately after giving effect to such
merger, consolidation or sale or transfer of assets, no
Default or Event of Default shall have occurred or exist.
.. SALES OF ASSETS.
() The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, engage in Asset Sales during any fiscal year of the Company
unless the assets to be sold in such Asset Sale, together with all other assets
of the Company and its Restricted Subsidiaries sold, leased, transferred or
otherwise disposed of in all other Asset Sales during such fiscal year,
constitute less than 10% of the Consolidated Total Assets measured as of the end
of the immediately preceding Fiscal Year or contributed less than 10% of
Consolidated Operating Income during the immediately preceding fiscal year
(disregarding any fiscal quarter in which there was an operating loss, on a
consolidated basis).
() The foregoing limitation shall not prohibit the Company from selling
accounts receivable in an aggregate face amount if, when combined with the face
amount of all other receivables then outstanding under any securitization
program, such amount would not exceed the percentage of Consolidated Total
Assets set forth below opposite the applicable ratio:
----------------------------------------------------------------------
Ratio of Total Debt to Percentage
Consolidated Total Capitalization
(as of the Date of Determination)
-----------------------------------------------------------------------
ae .55 to 1.0 20%
-----------------------------------------------------------------------
>.55 to 1.0 10%
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.. NATURE OF BUSINESS. Neither the Company nor any Restricted
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
Restricted Subsidiaries would be substantially changed from the nature of the
business of the Company and its Subsidiaries on the date hereof and described in
the Memorandum.
.. DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING SUBSIDIARIES. The
Company shall not permit any of its Restricted Subsidiaries to create or
otherwise cause or suffer to exist or become effective any encumbrance or
restriction on the ability of any Restricted Subsidiary to ()() pay dividends or
make any other distributions to the Company or any of its Restricted
Subsidiaries with respect to, or on account of, its Equity Interests or () pay
any Indebtedness owed to the Company or any of its Restricted Subsidiaries, ()
make loans or advances to the Company or any of its Restricted Subsidiaries or
() transfer any of its properties or assets to the Company or any of its
Restricted Subsidiaries, except for such encumbrances or restrictions existing
under or by reason of () agreements evidencing Indebtedness as in effect on the
Closing and described on Schedule 5.15 hereof and any agreement which evidences
any renewal, extension, substitution or refinancing of such Indebtedness so long
as the provisions relating to such encumbrance or restriction contained in any
such agreement are no more restrictive or onerous to the Company or such
Subsidiary, () agreements evidencing Priority Debt of Subsidiaries permitted to
be incurred under this Agreement, () applicable law, () by reason of customary
non-assignment provisions in leases entered into in the ordinary course of
business and consistent with past practices, () purchase money obligations for
property acquired in the ordinary course of business that impose restrictions of
the nature described in clause (iii) above on the property so acquired, and ()
an agreement that has been entered into for the sale or disposition of all or
substantially all of the Equity Interests or property or assets of a Restricted
Subsidiary.
. EVENTS OF DEFAULT. An "EVENT OF DEFAULT" shall exist if any of the
following conditions or events shall occur and be continuing:
() 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
() 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
() the Company defaults in the performance of or compliance
with any term contained in Section 10 hereof; or
() 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 () a Responsible Officer
obtaining actual knowledge of such default and () 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
() 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
() () the Company or any Restricted Subsidiary is in default
(as principal or as guarantor or other surety) in the payment of any
principal of or premium or make-whole amount or interest on any
Indebtedness that is outstanding in an aggregate principal amount of at
least $10,000,000 beyond any period of grace provided with respect
thereto, or () the Company or any Restricted Subsidiary is in default
in the performance of or compliance with any term of any evidence of
any Indebtedness in an aggregate outstanding principal amount of at
least $10,000,000 or of any mortgage, indenture or other agreement
relating thereto or any other condition exists, and as a consequence of
such default or condition such Indebtedness has become, or has been
declared (or one or more Persons are entitled to declare such
Indebtedness to be), due and payable before its stated maturity or
before its regularly scheduled dates of payment or () as a consequence
of the occurrence or continuation of any event or condition (other than
the passage of time or the right of the holder of Indebtedness to
convert such Indebtedness into equity interests), (x) the Company or
any Restricted Subsidiary has become obligated to purchase or repay
Indebtedness before its regular maturity or before its regularly
scheduled dates of payment in an aggregate outstanding principal amount
of at least $10,000,000, or (y) one or more Persons have the right to
require the Company or any Restricted Subsidiary so to purchase or
repay such Indebtedness; or
() the Company or any Restricted Subsidiary () is
generally not paying, or admits in writing its inability to pay, its
debts as they become due, () 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, () makes an
assignment for the benefit of its creditors, () 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, () is adjudicated as insolvent or to be
liquidated, or () takes corporate action for the purpose of any of the
foregoing; or
() a court or governmental authority of competent jurisdiction
enters an order appointing, without consent by the Company or any of
its Restricted 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
Restricted Subsidiaries, or any such petition shall be filed against
the Company or any of its Restricted Subsidiaries and such petition
shall not be dismissed within 60 days; or
() a final judgment or judgments for the payment of money
aggregating in excess of $10,000,000 are rendered against one or more
of the Company and its Restricted 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
() if () 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, () 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 and, in the
case of (i) or (ii), the aggregate "amount of unfunded benefit
liabilities" (within the meaning of section 4001(a)(18) of ERISA) of
the applicable Plan or Plans, determined in accordance with Title IV of
ERISA, shall exceed $10,000,000, () the Company or any ERISA Affiliate
shall have incurred or is reasonably expected to incur any liability
pursuant to Title I or IV of ERISA or the penalty or excise tax
provisions of the Code relating to employee benefit plans in excess of
$10,000,000, () the Company or any ERISA Affiliate withdraws from any
Multiemployer Plan with a resulting withdrawal liability in excess of
$10,000,000, or () 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 unfunded liability of the
Company or any Subsidiary thereunder by in excess of $10,000,000; or
any such event or events described in clauses (i) through (v) above,
either individually or together with any other such event or events,
would 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; or
() The Company shall fail to provide legal opinions, in form
and substance satisfactory to you, with respect to the Restricted
Subsidiaries specified on Schedule 11(k) on or prior to January 15,
1999.
. REMEDIES ON DEFAULT, ETC.
.. ACCELERATION. () 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.
() 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.
() 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.
.. 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.
.. 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
() 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, () all Events of Default and Defaults, other than nonpayment of amounts
that have become due solely by reason of such declaration, have been cured or
have been waived pursuant to Section 17, and () 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.
.. 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
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.
. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES.
.. 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.
.. 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.
.. 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
() 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
() 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.
. PAYMENTS ON NOTES.
.. 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 Xxxxxx Guaranty
Trust Company of New York 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.
.. 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.
. EXPENSES, ETC.
.. TRANSACTION EXPENSES. Whether or not the transactions contemplated
hereby are consummated, the Company will pay all 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: () the 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 () the costs and expenses,
including financial advisors' fees, incurred in connection with the insolvency
or bankruptcy of the Company or any Subsidiary or in connection with any
work-out or restructuring of the transactions contemplated 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).
.. SURVIVAL. The obligations of the Company under this Section
15 will survive the payment or transfer of any Note, the enforcement, amendment
or waiver of any provision of this Agreement or the Notes, and the termination
of this Agreement.
. 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.
. AMENDMENT AND WAIVER.
.. 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 () no amendment or waiver of any
of the provisions of Section 1, 2, 3, 4, 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 () no such amendment or waiver may, without the written consent of
the holder of each Note at the time outstanding affected thereby, () 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 change the rate
or the time of payment or method of computation of interest or of the Make-Whole
Amount on, the Notes, () 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 ()
amend any of Sections 8, 11(a), 11(b), 12, 17 or 20.
.. SOLICITATION OF HOLDERS OF NOTES. () 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.
() 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.
.. 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.
.. 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 shall be deemed not to be outstanding.
. 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:
() 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,
() 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
() if to the Company, to the Company at its address set forth
at the beginning hereof to the attention of the Treasurer, with a copy
thereof to the Company at the same address to the attention of the
Legal Department, 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.
. REPRODUCTION OF DOCUMENTS. This Agreement and all documents relating thereto,
including, without limitation, () consents, waivers and modifications that may
hereafter be executed, () documents received by you at the Closing (except the
Notes themselves), and () 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.
. 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 () was publicly known
or otherwise known to you prior to the time of such disclosure, () subsequently
becomes publicly known through no act or omission by you or any person acting on
your behalf, () otherwise becomes known to you other than through disclosure by
the Company or any Subsidiary or () 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 () 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), () 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, () any other holder of any Note, () 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), () 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), () any federal or
state regulatory authority having jurisdiction over you, () 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 () 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.
. SUBSTITUTION OF PURCHASER. You shall have the right to substitute any one of
your Affiliates 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 Affiliate, shall contain such Affiliate's agreement to be bound by
this Agreement and shall contain a confirmation by such Affiliate of the
accuracy with respect to it of the representations set forth in Section 6. Upon
receipt of such notice, wherever the word "you" is used in this Agreement (other
than in this Section 21), such word shall be deemed to refer to such Affiliate
in lieu of you. In the event that such Affiliate is so substituted as a
purchaser hereunder and such Affiliate thereafter transfers to you all of the
Notes then held by such Affiliate, 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 Affiliate, but
shall refer to you, and you shall have all the rights of an original holder of
the Notes under this Agreement.
. MISCELLANEOUS.
.. 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.
.. 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.
.. 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.
.. 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.
.. 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.
.. GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with, and the rights of the parties shall be governed by, the law of
the State of New York excluding choice-of-law principles of the law of such
State that would require the application of the laws of a jurisdiction other
than such State.
* * * * *
[Signatures on following page]
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,
XXXXXXXX XXXXX, INC.
By: ______________________________
Name:
Title:
The foregoing is hereby
agreed to as of the
date thereof:
[INSERT APPROPRIATE PURCHASER
SIGNATURE BLOCK]
SCHEDULE A TO NOTE PURCHASE AGREEMENT
INFORMATION RELATING TO PURCHASERS
Name and Address of Purchaser Principal Amount of
Notes to be Purchased
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA $ 97,000,000
(1) All payments by wire transfer of immediately available funds for credit to:
Account No. 000-0000-000, Prudential Managed Account
Bank of New York
New York, New York
(ABA No.: 021-000-018)
Each such wire transfer shall set forth the name of the Company, a reference to
"7.06% Senior Notes due December __, 2008, PPN No. 401794@\A, INV6266", and the
due date and application (as among principal, interest and Make-Whole Amount) of
the payment being made.
(2) All notices of payments and written confirmation of such wire transfers:
The Prudential Insurance Company of America
Three Gateway Center
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000-0000
Attention: Manager, Xxxxxxxx and Collections
Telephone: 000.000.0000
Telecopier: 973.802.8055
(3) All other communications:
The Prudential Insurance Company of America
c/o Prudential Capital Group
Xxx Xxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Senior Vice President
Telephone: 000.000.0000
Telecopier: 770.395.8478
(4) Recipient of telephonic prepayment notices:
Manager, Trade Management
Telephone: 000.000.0000
Telecopier: 973.802.9425
(5) Tax Identification No.: 00-0000000
Name and Address of Purchaser Principal Amount of
Notes to be Purchased
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA $ 3,000,000
(1) All payments by wire transfer of immediately available funds for credit to:
Account No. 000-0000-000, PRIVEST Portfolio Account
Bank of New York
New York, New York
(ABA No.: 021-000-018)
Each such wire transfer shall set forth the name of the Company, a reference to
"7.06% Senior Notes due December __, 2008, PPN No. 401794@\A, INV6267", and the
due date and application (as among principal, interest and Make-Whole Amount) of
the payment being made.
(2) All notices of payments and written confirmation of such wire transfers:
The Prudential Insurance Company of America
Three Gateway Center
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000-0000
Attention: Manager, Xxxxxxxx and Collections
Telephone: 000.000.0000
Telecopier: 973.802.8055
(3) All other communications:
The Prudential Insurance Company of America
c/o Prudential Capital Group
Xxx Xxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Senior Vice President
Telephone: 000.000.0000
Telecopier: 770.395.8478
(4) Recipient of telephonic prepayment notices:
Manager, Trade Management
Telephone: 000.000.0000
Telecopier: 973.802.9425
(5) Tax Identification No.: 00-0000000
Name and Address of Other Purchasers Principal Amount of
Notes to be Purchased
THE VARIABLE ANNUITY LIFE INSURANCE COMPANY $ 10,000,000
(1) All payments by wire transfer of immediately available funds to:
ABA No. 000000000
State Street Bank and Trust Company
Xxxxxx, Xxxxxxxxxxxxx 00000
Re: The Variable Annuity Life Insurance Company
AC-0125-821-9
[OBI=PPN # and description of payment]
Fund Number PA 54
with sufficient information to identify the source and application of such funds
(including PPN#, interest rate, maturity date, interest amount, principal amount
and premium amount, if applicable)
(2) All notices of payments and written confirmation of such wire transfers:
The Variable Annuity Life Insurance Company and PA 54
c/o State Street Bank and Trust Company
Insurance Services WES2S
000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxxxx 00000
Facsimile Number: 781.302.8005
(3) Duplicate payment notices and all other communications:
The Variable Annuity Life Insurance Company
c/o American General Corporation
Attn: Investment Xxxxxxxx Xxxxxxxxxx, X00-00
X.X. Xxx 0000
Xxxxxxx, Xxxxx 00000-0000
Overnight Mail Address: 0000 Xxxxx Xxxxxxx, X00-00
Xxxxxxx, Xxxxx 00000-0000
Facsimile Number: 713.831.1366
Tax I.D. Number: 00-0000000
Name and Address of Other Purchasers Principal Amount of
Notes to be Purchased
AMERICAN GENERAL ANNUITY INSURANCE COMPANY $ 15,000,000
(1) All payments by wire transfer of immediately available funds to:
ABA No. 000000000
State Street Bank and Trust Company
Xxxxxx, Xxxxxxxxxxxxx 00000
Re: American General Annuity Insurance Company
AC-7215-132-7
[OBI=PPN # and description of payment]
Fund Number WE1B
with sufficient information to identify the source and application of such funds
(including PPN#, interest rate, maturity date, interest amount, principal amount
and premium amount, if applicable)
(2) All notices of payments and written confirmation of such wire transfers:
American General Annuity Insurance Company and WE1B
c/o State Street Bank and Trust Company
Insurance Services WES2S
000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxxxx 00000
Facsimile Number: 781.302.8005
(3) Duplicate payment notices and all other communications:
American General Annuity Insurance Company
c/o American General Corporation
Attn: Investment Xxxxxxxx Xxxxxxxxxx, X00-00
X.X. Xxx 0000
Xxxxxxx, Xxxxx 00000-0000
Overnight Mail Address: 0000 Xxxxx Xxxxxxx, X00-00
Xxxxxxx, Xxxxx 00000-0000
Facsimile Number: 713.831.1366
Tax I.D. Number: 00-0000000
Name and Address of Other Purchasers Principal Amount of
Notes to be Purchased
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY $ 8,500,000
(1) All payments by wire transfer of immediately available funds to:
Citibank, N.A.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
ABA No. 000000000
For MassMutual Long-Term Pool
Account No. 4067-3488
Re: Description of security, principal and interest split
With telephone advise of payment to the Securities Custody and Collection
Department of Massachusetts Mutual Life Insurance Company at 413.744.3561
with sufficient information to identify the source and
application of such funds
(2) All notices of payments and written confirmation of such wire transfers:
Massachusetts Mutual Life Insurance Company
0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Securities Custody and Collection Department
F381
(3) All other communications:
Massachusetts Mutual Life Insurance Company
0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Securities Investment Division
Tax Identification No. 00-0000000
Name and Address of Other Purchasers Principal Amount of
Notes to be Purchased
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY $ 5,600,000
(1) All payments by wire transfer of immediately available funds to:
Chase Manhattan Bank, N.A.
0 Xxxxx Xxxxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
ABA No. 000000000
For MassMutual Pension Management
Account No. 910-0000000
Re: Description of security, principal and interest split
With telephone advise of payment to the Securities Custody and Collection
Department of Massachusetts Mutual Life Insurance Company at 413.744.3561
with sufficient information to identify the source and
application of such funds
(2) All notices of payments and written confirmation of such wire transfers:
Massachusetts Mutual Life Insurance Company
0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Securities Custody and Collection Department
F381
(3) All other communications:
Massachusetts Mutual Life Insurance Company
0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Securities Investment Division
Tax Identification No. 00-0000000
Name and Address of Other Purchasers Principal Amount of
Notes to be Purchased
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY $ 4,900,000
(1) All payments by wire transfer of immediately available funds to:
Chase Manhattan Bank, N.A.
0 Xxxxx Xxxxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
ABA No. 000000000
For MassMutual IFM Non-Traditional
Account No. 910-0000000
Re: Description of security, principal and interest split
With telephone advise of payment to the Securities Custody and Collection
Department of Massachusetts Mutual Life Insurance Company at 413.744.3561
with sufficient information to identify the source and
application of such funds
(2) All notices of payments and written confirmation of such wire transfers:
Massachusetts Mutual Life Insurance Company
0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Securities Custody and Collection Department
F381
(3) All other communications:
Massachusetts Mutual Life Insurance Company
0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Securities Investment Division
Tax Identification No. 00-0000000
Name and Address of Other Purchasers Principal Amount of
Notes to be Purchased
CM LIFE INSURANCE COMPANY $ 1,000,000
(1) All payments by wire transfer of immediately available funds to:
Citibank, N.A.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
ABA No. 000000000
For Segment 43 - Universal Life
Account No. 4068-6561
Re: Description of security, principal and interest split
With telephone advise of payment to the Securities Custody and Collection
Department of Massachusetts Mutual Life Insurance Company at 413.744.3561
with sufficient information to identify the source and
application of such funds
(2) All notices of payments and written confirmation of such wire transfers:
Massachusetts Mutual Life Insurance Company
0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Securities Custody and Collection Department
F381
(3) All other communications:
Massachusetts Mutual Life Insurance Company
0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Securities Investment Division
Tax Identification No. 00-0000000
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, with respect to any entity, any other
entity () directly or indirectly controlling or controlled by or under
direct or common control with such entity or () directly or indirectly
owning or holding five percent (5%) or more of the equity interest in
such entity. For purposes of this definition, "control" when used with
respect to any entity means the power to direct the management and
policies of such entity, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the
foregoing.
"ASSET SALE" means the sale, lease, conveyance or other
disposition of any assets (including, without limitation, by way of a
sale and leaseback) other than sales of inventory, assignment of
receivables pursuant to any Maturity Factoring Arrangement or sales of
obsolete or excess equipment or equipment that is no longer usable, in
each case, in the ordinary course of business consistent with past
practices. Notwithstanding the foregoing, () a transfer of assets by
the Company to a Wholly-Owned Restricted Subsidiary or by a Restricted
Subsidiary to the Company or a Wholly-Owned Restricted Subsidiary, ()
an issuance or sale of Equity Interests by a Restricted Subsidiary to
the Company or a Wholly-Owned Restricted Subsidiary, () a disposition
of the types of investments described in subparagraphs (i), (ii) and
(iii) of the definition of "Restricted Investments" in the ordinary
course of business, () the issuance of Equity Interests of a Restricted
Subsidiary to an individual for the sole purpose of qualifying such
individual as a director of such Restricted Subsidiary and () the
issuance of Equity Interests of Restricted Subsidiaries to minority
shareholders of Restricted Subsidiaries to satisfy the rights of such
shareholders to receive issuances of stock which, in each case, do not
dilute the ownership interest of the Company (or Restricted Subsidiary)
in such Restricted Subsidiary, will not be deemed to be an Asset Sale.
The designation of a Subsidiary as an Unrestricted Subsidiary shall be
deemed to be an Asset Sale by the Company in an amount equal to the
book value of the assets of such Subsidiary in the fiscal year in which
such designation occurs.
"BUSINESS DAY" means () for the purposes of Section 8.7 only
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, and ()
for the purposes of any other provision of this Agreement, any day
other than a Saturday, a Sunday or a day on which commercial banks in
New York, New York or Charlotte, North Carolina are required or
authorized to be closed.
"CAPITAL STOCK" means () in the case of a corporation,
corporate stock, () in the case of an association or business entity,
any and all shares, interests, participations, rights or other
equivalents (however designated) of corporate stock, () in the case of
a partnership, partnership interests (whether general or limited) and
() any other interest or participation that confers on a Person the
right to receive a share of the profits and losses of, or
distributions of assets of, the issuing Person.
"CAPITAL LEASE" shall mean the amount at which the aggregate
payments due and to become due under all leases under which such
person, as lessee, would be required to be capitalized in accordance
with GAAP and would be reflected as a liability on a consolidated
balance sheet.
"CHANGE IN CONTROL" shall mean the beneficial ownership or
acquisition in any transaction or series of related transactions of 50%
or more of the combined voting power of all then issued and outstanding
Voting Stock of the Company by any Person (together with any of its
Affiliates) holding 10% or more the combined voting power of the issued
and outstanding Voting Stock of the Company as of September 27, 1998,
acting alone or in concert with one or more Persons.
"CLOSING" is defined in Section 3.
"CODE" means the Internal Revenue Code of 1986, as amended
from time to time, and the rules and regulations promulgated thereunder
from time to time.
"COMPANY" means Xxxxxxxx Xxxxx, Inc., a Delaware corporation.
"CONFIDENTIAL INFORMATION" is defined in Section 20.
"CONSOLIDATED INTEREST EXPENSE" shall mean, with respect to
any period, the sum (without duplication) of the following (in each
case, eliminating all offsetting debits and credits between the Company
and its Restricted Subsidiaries and all other items required to be
eliminated in the course of the preparation of consolidated financial
statements of the Company and its Restricted Subsidiaries in accordance
with GAAP): () all interest and prepayment charges in respect of
Indebtedness of the Company and its Restricted Subsidiaries (including
imputed interest in respect of Capital Lease and net costs of Swaps)
deducted in determining consolidated net income for such period,
together with all interest capitalized or deferred during such period
and not deducted in determining consolidated net income for such
period, and () all debt discount and expense amortized or required to
be amortized in the determination of consolidated net income for such
period.
"CONSOLIDATED NET ASSETS" shall mean, on a consolidated basis
for the Company and its Restricted Subsidiaries, total assets less all
Restricted Investments less current liabilities.
"CONSOLIDATED NET INCOME" or "CONSOLIDATED NET LOSS" shall
mean, for any period, the after tax net income or loss, as the case may
be, determined on a consolidated basis for the Company and its
Restricted Subsidiaries in accordance with GAAP excluding the effect of
() extraordinary items (as determined in accordance with GAAP) and ()
unremitted net income and net losses of any business entity (other than
a Restricted Subsidiary) in which the Company or any Restricted
Subsidiary has an ownership interest.
"CONSOLIDATED NET WORTH" means, as of any date,
() Consolidated Total Assets, minus
() the total liabilities of the Company and its Restricted
Subsidiaries which would be shown as liabilities on a consolidated
balance sheet of the Company and its Restricted Subsidiaries as of such
time prepared in accordance with GAAP.
"CONSOLIDATED OPERATING INCOME" means, for any period, the
Operating Income of the Company and its Restricted Subsidiaries,
determined on a consolidated basis in accordance with GAAP.
"CONSOLIDATED TOTAL ASSETS" means, as of any date, the total
assets of the Company and its Restricted Subsidiaries which would be
shown as assets on a consolidated balance sheet of the Company and its
Restricted Subsidiaries as of such time prepared in accordance with
GAAP.
"CONSOLIDATED TOTAL CAPITALIZATION" shall mean as of the date
of determination, the aggregate of Total Debt and Consolidated Net
Worth.
"DEFAULT" means an event or condition the occurrence or
existence of which would, with the lapse of time or the giving of
notice or both, become an Event of Default.
"DEFAULT RATE" means that rate of interest that is the greater
of () 2% per annum above the rate of interest stated in clause (a) of
the first paragraph of the Notes or () 2% over the rate of interest
publicly announced by Xxxxxx Guaranty Trust Company of New York, New
York, New York as its "base" or "prime" rate.
"EBITDAR" shall mean for the Company and its Restricted
Subsidiaries, for any period, the sum of () Consolidated Net Income,
plus () to the extent deducted in the determination of Consolidated
Net Income, () all provisions for federal, state and other income tax,
() Consolidated Interest Expense, () provisions for depreciation and
amortization, () provisions for rentals on Operating Leases, ()
extraordinary items (as defined in accordance with GAAP) and () losses
on sales of assets, less () extraordinary items (as defined in
accordance with GAAP) and gains on sales of assets.
"ENVIRONMENTAL LAWS" means any and all Federal, state, local,
and foreign statutes, laws, regulations, ordinances, rules, judgments,
orders, decrees, permits, concessions, grants, franchises, licenses,
agreements or governmental restrictions relating to pollution and the
protection of the environment or the release of any Hazardous Materials
into the environment.
"EQUITY INTERESTS" means Capital Stock and all warrants,
options or other rights to acquire Capital Stock (but excluding any
debt security that is convertible into, or exchangeable for, Capital
Stock).
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the rules and regulations
promulgated thereunder from time to time in effect.
"ERISA AFFILIATE" means any trade or business (whether or not
incorporated) that is treated as a single employer together with the
Company under section 414 of the Code.
"EVENT OF DEFAULT" is defined in Section 11.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"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" shall mean for the Company and its Restricted
Subsidiaries, with respect to any period, the sum of Consolidated
Interest Expense for such period plus rentals on Operating Leases.
"GAAP" means generally accepted accounting principles as in
effect from time to time in the United States of America.
"GOVERNMENTAL AUTHORITY" means
() the government of
() the United States of America or any
State or other political subdivision thereof, or
() 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
() any entity exercising executive, legislative,
judicial, regulatory or administrative functions of, or
pertaining to, any such government.
"GUARANTY" means, with respect to any Person, any obligation
(except the endorsement in the ordinary course of business of
negotiable instruments for deposit or collection) of such Person
guaranteeing or in effect guaranteeing any indebtedness, dividend or
other obligation of any other Person in any manner, whether directly or
indirectly, including (without limitation) obligations incurred through
an agreement, contingent or otherwise, by such Person:
(a) to purchase such indebtedness or obligation or
any property constituting security therefor;
(b) to advance or supply funds (i) for the purchase
or payment of such indebtedness or obligation, or (ii) to
maintain any working capital or other balance sheet condition
or any income statement condition of any other Person or
otherwise to advance or make available funds for the purchase
or payment of such indebtedness or obligation;
() to lease properties or to purchase properties
or services primarily for the purpose of assuring the owner
of such indebtedness or obligation of the ability of any other
Person to make payment of the indebtedness or obligation; or
() otherwise to assure the owner of such
indebtedness or obligation against loss in respect thereof.
In any computation of the indebtedness or other liabilities of the
obligor under any Guaranty, the indebtedness or other obligations that
are the subject of such Guaranty shall be assumed to be direct
obligations of such obligor.
"HAZARDOUS MATERIAL" means any and all materials regulated as
hazardous, toxic or extremely hazardous under Environmental Laws.
"HOLDER" means, with respect to any Note, the Person in whose
name such Note is registered in the register maintained by the Company
pursuant to Section 13.1.
"INDEBTEDNESS" with respect to any Person means, at any time,
without duplication,
() its liabilities for borrowed money and
its redemption obligations in respect of mandatorily
redeemable Preferred Stock;
() its liabilities for the deferred purchase price of
property acquired by such Person (excluding accounts payable
arising in the ordinary course of business but including all
liabilities created or arising under any conditional sale or
other title retention agreement with respect to any such
property);
() all liabilities appearing on its balance
sheet in accordance with GAAP in respect of Capital Leases:
() all liabilities for borrowed money secured
by any Lien with respect to any property owned by such Person
(whether or not it has assumed or otherwise become liable for
such liabilities);
() all its liabilities in respect of letters of
credit or instruments serving a similar function issued or
accepted for its account by banks and other financial
institutions (whether or not representing obligations for
borrowed money);
() Swaps of such Person; and
() any Guaranty of such Person with respect to
liabilities of a type described in any of clauses (a) through
(f) hereof.
"INSTITUTIONAL INVESTOR" means () any original purchaser of a
Note, () any holder of a Note holding more than 5% of the aggregate
principal amount of the Notes then outstanding, and () 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" means, with respect to any Person, any mortgage, lien,
pledge, charge, security interest or other encumbrance, or any interest
or title of any vendor, lessor, lender or other secured party to or of
such Person under any conditional sale or other title retention
agreement or Capital Lease, upon or with respect to any property or
asset of such Person (including in the case of stock, stockholder
agreements, voting trust agreements and all similar arrangements).
"MAKE-WHOLE AMOUNT" is defined in Section 8.7.
"MATERIAL" means material in relation to the business,
operations, affairs, financial condition, assets or properties of the
Company and its Subsidiaries taken as a whole.
"MATERIAL ADVERSE EFFECT" means a material adverse effect
on () the business, operations, affairs, financial condition, assets
or properties of the Company and its Subsidiaries taken as a whole, or
() the ability of the Company to perform its obligations under this
Agreement and the Notes, or () the validity or enforceability of this
Agreement or the Notes.
"MATURITY FACTORING ARRANGEMENT" shall mean any arrangement
entered into by the Company or any of its Restricted Subsidiaries in
the ordinary course of business consistent with the Company's practices
as of the Closing relating to the accounts receivable of the Company
and/or its Restricted Subsidiaries whereby (i) the Company and/or such
Restricted Subsidiaries (a) transfer to a factor the credit functions
and all associated credit risk with respect to certain accounts
receivable and (b) do not retain any liability with respect to the
collectibility of such accounts receivable or any obligation whatsoever
with respect thereto except for the settlement of any bona fide dispute
and (ii) the factor agrees to pay the Company and/or such Restricted
Subsidiaries the face amount of each such account receivable pursuant
to its original terms of payment.
"MEMORANDUM" is defined in Section 5.3.
"MULTIEMPLOYER PLAN" means any Plan that is a "multiemployer
plan" (as such term is defined in section 4001(a)(3) of ERISA).
"1998 NOTE" is defined in Section 1.
"NOTE" AND "NOTES" are defined in Section 1.
"OFFICER'S CERTIFICATE" means 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.
"OPERATING INCOME" means, as applied to any Person for any
period, the operating income of such Person for such period, as
determined in accordance with GAAP.
"OPERATING LEASES" shall mean any lease of real or personal
property, plant, equipment or buildings for a term (including any
renewals or extension permitted) greater than one year, which is not a
Capital Lease.
"OTHER AGREEMENTS" is defined in Section 2.
"OTHER NOTES" is defined in Section 4.6.
"OTHER PURCHASERS" is defined in Section 2.
"PBGC" means the Pension Benefit Guaranty Corporation referred
to and defined in ERISA or any successor thereto.
"PERSON" means an individual, partnership, corporation,
limited liability company, association, trust, unincorporated
organization, or a government or agency or political subdivision
thereof.
"PLAN" means an "employee benefit plan" (as defined in section
3(3) of ERISA) that is or, within the preceding five years, has been
established or maintained, or to which contributions are or, within the
preceding five years, have been made or required to be made, by the
Company or any ERISA Affiliate or with respect to which the Company or
any ERISA Affiliate may have any liability.
"PREFERRED STOCK" means any class of capital stock of a
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, with respect to the Company, at
any time, without duplication, the sum of:
() unsecured Indebtedness of each Restricted
Subsidiary (other than such Indebtedness held by the
Company or a Wholly-Owned Subsidiary thereof);
() Indebtedness of the Company and any
Restricted Subsidiary secured by any Lien (other than such
Indebtedness held by the Company or a Wholly-Owned Subsidiary
thereof); and
() all Preferred Stock of Restricted
Subsidiaries owned by a Person other than the Company or a
Wholly-Owned Subsidiary thereof.
"PROPERTY" or "PROPERTIES" means, unless otherwise
specifically limited, real or personal property of any kind, tangible
or intangible, xxxxxx or inchoate.
"PURCHASER" is defined in Section 2.
"QPAM EXEMPTION" means Prohibited Transaction Class Exemption
84-14 issued by the United States Department of Labor.
"REQUIRED HOLDERS" means, at any time, the holders of at least
51% in principal amount of the Notes and the Other Notes at the time
outstanding (exclusive of Notes and the Other Notes then owned by the
Company or any of its Affiliates).
"RESPONSIBLE OFFICER" means any Senior Financial Officer and
any other officer of the Company with responsibility for the
administration of the relevant portion of this agreement.
"RESTRICTED INVESTMENTS" shall mean any investments in
securities or extensions of credit by the Company and Restricted
Subsidiaries other than:
() direct obligations of the U.S. Government
or its agencies or obligations guaranteed by the U.S.
Government maturing no later than one year from the date of
acquisition:
() Eurodollar deposits with or negotiable
certificates of deposit, time deposits or bankers acceptances
issued by banks with long-term debt or deposit ratings of at
least A- by S&P or A3 by Moody's having a combined capital and
surplus of over $250,000,000 and maturing no later than one
year from the date of acquisition;
() investments in commercial paper maturing
270 days or less and rated at least A-1 by Standard & Poors'
Corporation or P-1 by Xxxxx'x Investors Services, Inc.;
() investments in or loans to Restricted
Subsidiaries;
() investments in accounts or notes receivable
acquired in the ordinary course of business;
() any securities received in connection with
an Asset Sale that complies with Section 10.7; and
() notes from employees issued to the Company
representing payment of the exercise price of options to
purchase capital stock of the Company.
"RESTRICTED PAYMENTS" shall mean the payment of cash dividends
and the purchase of Capital Stock, warrants, rights or options to
acquire shares of Capital Stock or any other distributions with respect
to Capital Stock other than distributions of any Equity Interests.
"RESTRICTED SUBSIDIARY" shall mean any Subsidiary which is not
an Unrestricted Subsidiary.
"SECURITIES ACT" means the Securities Act of 1933, as amended
from time to time.
"SENIOR FINANCIAL OFFICER" means 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.
"SWAPS" means, with respect to any Person, payment obligations
with respect to interest rate swaps, currency swaps and similar
obligations obligating such Person to make payments, whether
periodically or upon the happening of a contingency. For the purposes
of this Agreement, the amount of the obligation under any Swap shall be
the amount determined in respect thereof as of the end of the then most
recently ended fiscal quarter of such Person, based on the assumption
that such Swap had terminated at the end of such fiscal quarter, and in
making such determination, if any agreement relating to such Swap
provides for the netting of amounts payable by and to such Person
thereunder or if any such agreement provides for the simultaneous
payment of amounts by and to such Person, then in each such case, the
amount of such obligation shall be the net amount so determined.
"TOTAL DEBT" shall mean, at the time of determination, the
then outstanding aggregate principal amount of all Indebtedness of the
Company and its Restricted Subsidiaries on a consolidated basis.
"UNRESTRICTED SUBSIDIARY" shall mean any Subsidiary that has
been designated by the Company's Board of Directors as an Unrestricted
Subsidiary (a "Designation"), provided that:
() at the time of such Designation, the
Subsidiary so designated neither holds nor owns, directly or
indirectly, any Indebtedness or capital stock of any
Restricted Subsidiary,
() at the time of such Designation, no
Indebtedness of such Subsidiary is Guaranteed by or secured by
a Lien upon the assets of the Company or a Restricted
Subsidiary; and
() at the time of such designation or
redesignation, as the case may be, no Default or Event of
Default exists or would exist after giving effect to the
designation.
The Company may revoke any Designation of a Subsidiary as an
Unrestricted Subsidiary (a "REVOCATION") only if:
() no Default or Event of Default exists or would
exist after giving effect to the Revocation; and
() all Liens and Indebtedness of such Unrestricted
Subsidiary outstanding immediately following such Revocation
would, if incurred at the time of such Revocation, have been
permitted to be incurred under this Agreement.
All Designations and Revocations shall be evidenced by a resolution of
the Board of Directors of the Company and, if requested by a Purchaser,
the Company shall send a copy of such resolution, together with an
Officer's Certificate certifying compliance with the foregoing.
"VOTING STOCK" shall mean, securities or other equity interest
of any class or classes, the holders of which are ordinarily, in the
absence of contingencies, entitled to vote for the election or removal
of corporate directors or persons (such as general partners or
managers) performing similar functions in the case of business entities
other than corporations.
"WHOLLY-OWNED SUBSIDIARY" or "WHOLLY-OWNED RESTRICTED
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.
EXHIBIT 1 TO NOTE PURCHASE AGREEMENT
[FORM OF NOTE]
THIS NOTE HAS NOT BEEN REGISTERED PURSUANT TO THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR QUALIFIED PURSUANT TO ANY
APPLICABLE STATE SECURITIES LAW.
XXXXXXXX XXXXX, INC.
7.06% SENIOR NOTE DUE DECEMBER 18, 2008
No. [R-_____] December 18, 1998
$[_______] PPN[_________]
FOR VALUE RECEIVED, the undersigned, XXXXXXXX XXXXX, INC. (herein
called the "Company"), a corporation organized and existing under the laws of
the State of Delaware, hereby promises to pay to [_______________], or
registered assigns, the principal sum of [________________________] DOLLARS on
[_____________, ____], with interest (computed on the basis of a 360-day year of
twelve 30-day months) () on the unpaid balance thereof at the rate of 7.06% per
annum from the date hereof, payable semiannually, on the 18th day of June and
December in each year, commencing with the June or December next succeeding the
date hereof, until the principal hereof shall have become due and payable, and
() to the extent permitted by law on any overdue payment (including any overdue
prepayment) of principal, any overdue payment of interest and any overdue
payment of any Make-Whole Amount (as defined in the Note Purchase Agreements
referred to below), payable semiannually as aforesaid (or, at the option of the
registered holder hereof, on demand), at a rate per annum from time to time
equal to the greater of () 9.06% or () 2% over the rate of interest publicly
announced by Xxxxxx Guaranty Trust Company of New York from time to time in New
York, New York as its "base" or "prime" rate.
Payments of principal of, interest on and any Make-Whole Amount with
respect to this Note are to be made in lawful money of the United States of
America at Xxxxxx Guaranty Trust Company of New York or at such other place as
the Company shall have designated by written notice to the holder of this Note
as provided in the Note Purchase Agreements referred to below.
This Note is one of the Senior Notes (herein called the "Notes") issued
pursuant to separate Note Purchase Agreements, dated as of December 18, 1998 (as
from time to time amended, the "Note Purchase Agreements"), between the Company
and the respective Purchasers named therein and is entitled to the benefits
thereof. Each holder of this Note will be deemed, by its acceptance hereof, ()
to have agreed to the confidentiality provisions set forth in Section 20 of the
Note Purchase Agreements and () to have made the representation set forth in
Section 6.2 of the Note Purchase Agreements.
This Note is a registered Note and, as provided in the Note Purchase
Agreements, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Company may treat the person in whose name this
Note is registered as the owner hereof for the purpose of receiving payment and
for all other purposes, and the Company will not be affected by any notice to
the contrary.
This Note is also subject to optional prepayment, in whole or from time
to time in part, at the times and on the terms specified in the Note Purchase
Agreements, but not otherwise.
If an Event of Default, as defined in the Note Purchase Agreements,
occurs and is continuing, the principal of this Note may be declared or
otherwise become due and payable in the manner, at the price (including any
applicable Make-Whole Amount) and with the effect provided in the Note Purchase
Agreements.
This Note shall be construed and enforced in accordance with, and the
rights of the parties shall be governed by, the law of the State of New York
excluding choice-of-law principles of the law of such State that would require
the application of the laws of a jurisdiction other than such State.
XXXXXXXX XXXXX, INC.
By: _____________________________
Title:
EXHIBIT 4.4(a) TO NOTE PURCHASE AGREEMENT
Matters To Be Covered In
Opinion of Special Counsel To the Company
. Each of the Company and its Restricted Subsidiaries being duly
incorporated, validly existing and in good standing and having requisite
corporate power and authority to issue and sell the Notes and to execute
and deliver the documents.
. Each of the Company and its Restricted Subsidiaries
being duly qualified and in good standing as a foreign corporation in
appropriate jurisdictions.
. Due authorization and execution of the documents and such
documents being legal, valid, binding and enforceable.
. No conflicts with charter documents, laws or other
agreements.
. All consents required to issue and sell the Notes and to
execute and deliver the documents having been obtained.
. No litigation questioning validity of documents.
. The Notes not requiring registration under the Securities Act
of 1933, as amended; no need to qualify an indenture under the
Trust Indenture Act of 1939, as amended.
. No violation of Regulations T, U or X of the Federal
Reserve Board.
. Company not an "investment company", or a company
controlled by an"investment company", under the Investment
Company Act of 1940, as amended.
.A North Carolina state court, or a federal court sitting in North
Carolina, would, under North Carolina conflicts of laws
principles, recognize the choice of New York law to govern the
Note Purchase Agreements and the Notes.
EXHIBIT 4.4(b) TO NOTE PURCHASE AGREEMENT
MATTERS TO BE COVERED BY OPINION OF
SPECIAL COUNSEL TO THE PURCHASERS
. The Note Purchase Agreement and the Notes would be legal,
valid and binding obligations, enforceable against the
Company in accordance with their respective terms.
. The Notes not requiring registration under the Securities
Act of 1933, as amended, no need to qualify an indenture
under the Trust Indenture Act of 1939, as amended.
Opinions subject to standard and customary qualifications and exceptions.
Page
Page
Page
TABLE OF CONTENTS
Page
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 2
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 3
4.9. Changes in Corporate Structure 3
4.10. Proceedings and Documents 3
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY 4
5.1. Organization; Power and Authority 4
5.2. Authorization, Etc. 4
5.3. Disclosure 4
5.4. Organization and Ownership of Shares of Subsidiaries 5
5.5. Financial Statements 5
5.6. Compliance with Laws, Other Instruments, Etc. 5
5.7. Governmental Authorizations, Etc. 6
5.8. Litigation; Observance of Statutes and Orders 6
5.9. Taxes 6
5.10. Title to Property; Leases 7
5.11. Licenses, Permits, Etc. 7
5.12. Compliance with ERISA 7
5.13. Private Offering by the Company 8
5.14. Use of Proceeds; Margin Regulations8
5.15. Existing Indebtedness 8
5.16. Foreign Assets Control Regulations, Etc. 9
5.17. Environmental Matters 9
5.18. Status under Certain Statutes 9
6. REPRESENTATIONS OF THE PURCHASER 10
6.1. Purchase for Investment 10
6.2. Source of Funds 10
7. INFORMATION AS TO COMPANY 11
7.1. Financial and Business Information 11
7.2. Officer's/Accountant's Certificate 13
7.3. Inspection 14
8. PAYMENT OF THE NOTES 15
8.1. Payments at Maturity 15
8.2. Optional Prepayments with Make-Whole Amount 15
8.3. Allocation of Partial Prepayments 15
8.4. Maturity; Surrender, Etc. 15
8.5. Purchase of Notes 16
8.6. Offer to Prepay Notes in the Event of a Change in Control 16
8.7. Make-Whole Amount 17
9. AFFIRMATIVE COVENANTS 18
9.1. Compliance with Law 18
9.2. Insurance 19
9.3. Maintenance of Properties 19
9.4. Payment of Taxes and Claims 19
9.5. Corporate Existence, Etc. 19
9.6. Covenant to Secure Note Equally 20
10. NEGATIVE COVENANTS 20
10.1. EBITDAR to Fixed Charge Coverage Ratio 20
10.2. Debt to Cap/Priority Debt 20
10.3. Restricted Payments 20
10.4. Liens 21
10.5. Transactions with Affiliates 22
10.6. Merger, Consolidation, Sales of Substantially All Assets 22
10.7. Sales of Assets 23
10.8. Nature of Business 24
10.9. Dividend and Other Payment Restrictions Affecting Subsidiaries 24
11. EVENTS OF XXXXXXX 00
00. REMEDIES ON DEFAULT, ETC. 27
12.1. Acceleration 27
12.2. Other Remedies 27
12.3. Rescission 27
12.4. No Waivers or Election of Remedies, Expenses, Etc. 28
13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES 28
13.1. Registration of Notes 28
13.2. Transfer and Exchange of Notes 28
13.3. Replacement of Notes 29
14. PAYMENTS ON NOTES 29
14.1. Place of Payment 29
14.2. Home Office Payment 29
15. EXPENSES, ETC. 30
15.1. Transaction Expenses 30
15.2. Survival 30
16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT 30
17. AMENDMENT AND WAIVER 31
17.1. Requirements 31
17.2. Solicitation of Holders of Notes 31
17.3. Binding Effect, Etc. 31
17.4. Notes held by Company, Etc. 32
18. NOTICES 32
19. REPRODUCTION OF DOCUMENTS 32
20. CONFIDENTIAL INFORMATION 33
21. SUBSTITUTION OF PURCHASER 34
22. MISCELLANEOUS 34
22.1. Successors and Assigns 34
22.2. Payments Due on Non-Business Days 34
22.3. Severability 34
22.4. Construction 34
22.5. Counterparts 35
22.6. Governing Law 35
Exhibits
Exhibit 1 Form of Senior Note
Exhibit 4.4(a) Matters to be Covered by Special
Counsel for the Company Exhibit 4.4(b) Matters to
be Covered by Special Counsel for the Purchasers
Schedules
Schedule A Information Relating to Purchasers
Schedule B Defined Terms
Schedule 5.4 Subsidiaries of the Company and Ownership of Subsidiary Stock
Schedule 5.5 Financial Statements
Schedule 5.8 Certain Litigation
Schedule 5.14 Use of Proceeds
Schedule 5.15 Existing Indebtedness
Schedule 10.4 Existing Liens
Schedule 11(k) Restricted Subsidiary Opinions
EXECUTION COUNTERPART
XXXXXXXX XXXXX, INC.
$145,000,000 7.06% Senior Notes due December 18, 2008
NOTE PURCHASE AGREEMENT
Dated December 18, 1998
The Prudential Life Insurance Company of America
