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EXHIBIT 10.16
WABASH NATIONAL CORPORATION
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As of September 29, 2000
The Prudential Insurance Company
of America ("PRUDENTIAL")
Pruco Life Insurance Company ("PRUCO")
Each Prudential Affiliate (as hereinafter
defined) which becomes bound by certain
provisions of this Agreement as hereinafter
provided (together with Prudential and Pruco, the "PURCHASERS")
c/o Prudential Capital Group
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Ladies and Gentlemen:
The undersigned, Wabash National Corporation, a Delaware corporation
(herein called the "COMPANY"), hereby agrees with you as set forth below.
Reference is made to paragraph 10 hereof for definitions of capitalized terms
used herein and not otherwise defined herein.
1. AUTHORIZATION OF ISSUE OF NOTES.
1A. AUTHORIZATION OF ISSUE OF SERIES I NOTES. The Company will
authorize the issue of its senior promissory notes (the "SERIES I NOTES") in the
aggregate principal amount of $50,000,000, to be dated the date of issue
thereof, to mature September 29, 2007, to bear interest on the unpaid balance
thereof from the date thereof until the principal thereof shall have become due
and payable at the rate of 8.04% per annum and on overdue principal,
Yield-Maintenance Amount and interest at the rate specified therein, and to be
substantially in the form of Exhibit A-1 attached hereto. The terms "SERIES I
NOTE" and "SERIES I NOTES" as used herein shall include each Series I Note
delivered pursuant to any provision of this Agreement and each Series I Note
delivered in substitution or exchange for any such Series I Note pursuant to any
such provision.
1B. AUTHORIZATION OF ISSUE OF SHELF NOTES. The Company will
authorize the issue of its additional senior promissory notes (the "SHELF
NOTES") in the aggregate principal
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amount of $25,000,000, to be dated the date of issue thereof, to mature, in the
case of each Shelf Note so issued, no more than 12 years after the date of
original issuance thereof, to have an average life, in the case of each Shelf
Note so issued, of no more than 10 years after the date of original issuance
thereof, to bear interest on the unpaid balance thereof from the date thereof at
the rate per annum, and to have such other particular terms, as shall be set
forth, in the case of each Shelf Note so issued, in the Confirmation of
Acceptance with respect to such Shelf Note delivered pursuant to paragraph
2B(5), and to be substantially in the form of Exhibit A-2 attached hereto. The
terms "SHELF NOTE" and "SHELF NOTES" as used herein shall include each Shelf
Note delivered pursuant to any provision of this Agreement and each Shelf Note
delivered in substitution or exchange for any such Shelf Note pursuant to any
such provision. The terms "NOTE" and "NOTES" as used herein shall include each
Series I Note and each Shelf Note delivered pursuant to any provision of this
Agreement and each Note delivered in substitution or exchange for any such Note
pursuant to any such provision. Notes which have (i) the same final maturity,
(ii) the same principal prepayment dates, (iii) the same principal prepayment
amounts (as a percentage of the original principal amount of each Note), (iv)
the same interest rate, (v) the same interest payment periods and (vi) the same
date of issuance (which, in the case of a Note issued in exchange for another
Note, shall be deemed for these purposes the date on which such Note's ultimate
predecessor Note was issued), are herein called a "SERIES" of Notes.
2. PURCHASE AND SALE OF NOTES.
2A. PURCHASE AND SALE OF SERIES I NOTES. The Company hereby
agrees to sell to the Purchasers and, subject to the terms and conditions herein
set forth, the Purchasers agree to purchase from the Company $50,000,000
aggregate principal amount of Series I Notes at 100% of such aggregate principal
amount. On September 29, 2000 or any other date prior to September 29, 2000 upon
which the Company and Prudential may agree (herein called the "SERIES I CLOSING
DAY"), the Company will deliver to the Purchasers at the offices of Prudential
Capital Group, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, one or
more Series I Notes registered in its name, evidencing the aggregate principal
amount of Series I Notes to be purchased by the Purchasers and in the
denomination or denominations specified with respect to each Purchaser in the
Purchaser Schedule attached hereto, against payment of the purchase price
thereof by transfer of immediately available funds for credit to the Company's
account # 56-90021 at Bank One, Chicago, Illinois, ABA Routing Number
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2B. PURCHASE AND SALE OF SHELF NOTES.
2B(1). FACILITY. Prudential is willing to consider, in its sole
discretion and within limits which may be authorized for purchase by Prudential
from time to time, the purchase of Shelf Notes pursuant to this Agreement. The
willingness of Prudential to consider such purchase of Shelf Notes is herein
called the "FACILITY". At any time, the aggregate principal amount of Shelf
Notes stated in paragraph 1B, minus the aggregate principal amount of Shelf
Notes purchased and sold pursuant to this Agreement prior to such time, minus
the aggregate principal amount of Accepted Notes (as hereinafter defined) which
have not yet been purchased and sold hereunder prior to such time, is herein
called the "AVAILABLE FACILITY AMOUNT" at such time. NOTWITHSTANDING
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THE WILLINGNESS OF PRUDENTIAL TO CONSIDER PURCHASES OF SHELF NOTES, THIS
AGREEMENT IS ENTERED INTO ON THE EXPRESS UNDERSTANDING THAT NEITHER PRUDENTIAL
NOR ANY PRUDENTIAL AFFILIATE SHALL BE OBLIGATED TO MAKE OR ACCEPT OFFERS TO
PURCHASE SHELF NOTES, OR TO QUOTE RATES, SPREADS OR OTHER TERMS WITH RESPECT TO
SPECIFIC PURCHASES OF SHELF NOTES, AND THE FACILITY SHALL IN NO WAY BE CONSTRUED
AS A COMMITMENT BY PRUDENTIAL OR ANY PRUDENTIAL AFFILIATE.
2B(2). ISSUANCE PERIOD. Shelf Notes may be issued and sold pursuant
to this Agreement until the earlier of (i) the third anniversary of the date of
this Agreement (or if such anniversary date is not a Business Day, the Business
Day next preceding such anniversary) and (ii) the thirtieth day after Prudential
shall have given to the Company, or the Company shall have given to Prudential,
a written notice stating that it elects to terminate the issuance and sale of
Shelf Notes pursuant to this Agreement (or if such thirtieth day is not a
Business Day, the Business Day next preceding such thirtieth day). The period
during which Shelf Notes may be issued and sold pursuant to this Agreement is
herein called the "ISSUANCE PERIOD".
2B(3). REQUEST FOR PURCHASE. The Company may from time to time
during the Issuance Period make requests for purchases of Shelf Notes (each such
request being herein called a "REQUEST FOR PURCHASE"). Each Request for Purchase
shall be made to Prudential by telecopier or overnight delivery service, and
shall (i) specify the aggregate principal amount of Shelf Notes covered thereby,
which shall not be less than $5,000,000 and not be greater than the Available
Facility Amount at the time such Request for Purchase is made, (ii) specify the
principal amounts, final maturities, principal prepayment dates and amounts and
interest payment periods (quarterly or semi-annual in arrears) of the Shelf
Notes covered thereby, (iii) specify the use of proceeds of such Shelf Notes,
(iv) specify the proposed day for the closing of the purchase and sale of such
Shelf Notes, which shall be a Business Day during the Issuance Period not less
than 10 days and not more than 25 days after the making of such Request for
Purchase, (v) specify the number of the account and the name and address of the
depository institution to which the purchase prices of such Shelf Notes are to
be transferred on the Closing Day for such purchase and sale, (vi) certify that
the representations and warranties contained in paragraph 8 are true on and as
of the date of such Request for Purchase and that there exists on the date of
such Request for Purchase no Event of Default or Default, (vii) specify whether
the fee to be due pursuant to paragraph 2B(8)(ii) should be included in the rate
quotes Prudential may provide pursuant to paragraph 2B(4) or will be paid
separately by the Company on the Closing Day for such purchase and sale, and
(viii) be substantially in the form of Exhibit B attached hereto. Each Request
for Purchase shall be in writing and shall be deemed made when received by
Prudential.
2B(4). RATE QUOTES. Not later than five Business Days after the
Company shall have given Prudential a Request for Purchase pursuant to paragraph
2B(3), Prudential may, but shall be under no obligation to, provide to the
Company by telephone or telecopier, in each case between 9:30 A.M. and 1:30 P.M.
New York City local time (or such later time as Prudential may elect) interest
rate quotes for the several principal amounts, maturities, principal prepayment
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schedules, and interest payment periods of Shelf Notes specified in such Request
for Purchase. Each quote shall represent the interest rate per annum payable on
the outstanding principal balance of such Shelf Notes at which Prudential or a
Prudential Affiliate would be willing to purchase such Shelf Notes at 100% of
the principal amount thereof.
2B(5). ACCEPTANCE. Within the Acceptance Window, the Company may,
subject to paragraph 2B(6), elect to accept such interest rate quotes as to not
less than $5,000,000 aggregate principal amount of the Shelf Notes specified in
the related Request for Purchase. Such election shall be made by an Authorized
Officer of the Company notifying Prudential by telephone or telecopier within
the Acceptance Window that the Company elects to accept such interest rate
quotes, specifying the Shelf Notes (each such Shelf Note being herein called an
"ACCEPTED NOTE") as to which such acceptance (herein called an "ACCEPTANCE")
relates. The day the Company notifies Prudential of an Acceptance with respect
to any Accepted Notes is herein called the "ACCEPTANCE DAY" for such Accepted
Notes. Any interest rate quotes as to which Prudential does not receive an
Acceptance within the Acceptance Window shall expire, and no purchase or sale of
Shelf Notes hereunder shall be made based on such expired interest rate quotes.
Subject to paragraph 2B(6) and the other terms and conditions hereof, the
Company agrees to sell to Prudential or a Prudential Affiliate, and Prudential
agrees to purchase, or to cause the purchase by a Prudential Affiliate of, the
Accepted Notes at 100% of the principal amount of such Notes. As soon as
practicable following the Acceptance Day, the Company, Prudential and each
Prudential Affiliate which is to purchase any such Accepted Notes will execute a
confirmation of such Acceptance substantially in the form of Exhibit C attached
hereto (herein called a "CONFIRMATION OF ACCEPTANCE"). If the Company should
fail to execute and return to Prudential within three Business Days following
receipt thereof a Confirmation of Acceptance with respect to any Accepted Notes,
Prudential may at its election at any time prior to its receipt thereof cancel
the closing with respect to such Accepted Notes by so notifying the Company in
writing.
2B(6). MARKET DISRUPTION. Notwithstanding the provisions of
paragraph 2B(5), if Prudential shall have provided interest rate quotes pursuant
to paragraph 2B(4) and thereafter prior to the time an Acceptance with respect
to such quotes shall have been notified to Prudential in accordance with
paragraph 2B(5) the domestic market for U.S. Treasury securities or derivatives
shall have closed or there shall have occurred a general suspension, material
limitation, or significant disruption of trading in securities generally on the
New York Stock Exchange or in the domestic market for U.S. Treasury securities
or derivatives, then such interest rate quotes shall expire, and no purchase or
sale of Shelf Notes hereunder shall be made based on such expired interest rate
quotes. If the Company thereafter notifies Prudential of the Acceptance of any
such interest rate quotes, such Acceptance shall be ineffective for all purposes
of this Agreement, and Prudential shall promptly notify the Company that the
provisions of this paragraph 2B(6) are applicable with respect to such
Acceptance.
2B(7). FACILITY CLOSINGS. Not later than 11:30 A.M. (New York City
local time) on the Closing Day for any Accepted Notes, the Company will deliver
to each Purchaser listed in the Confirmation of Acceptance relating thereto at
the offices of the Prudential Capital Group, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Law Department, the Accepted
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Notes to be purchased by such Purchaser in the form of one or more Notes in
authorized denominations as such Purchaser may request for each Series of
Accepted Notes to be purchased on the Closing Day, dated the Closing Day and
registered in such Purchaser's name (or in the name of its nominee), against
payment of the purchase price thereof by transfer of immediately available funds
for credit to the Company's account specified in the Request for Purchase of
such Notes. If the Company fails to tender to any Purchaser the Accepted Notes
to be purchased by such Purchaser on the scheduled Closing Day for such Accepted
Notes as provided above in this paragraph 2B(7), or any of the conditions
specified in paragraph 3 shall not have been fulfilled by the time required on
such scheduled Closing Day, the Company shall, prior to 1:00 P.M., New York City
local time, on such scheduled Closing Day notify Prudential (which notification
shall be deemed received by each Purchaser) in writing whether (i) such closing
is to be rescheduled (such rescheduled date to be a Business Day during the
Issuance Period not less than one Business Day and not more than 10 Business
Days after such scheduled Closing Day (the "RESCHEDULED CLOSING DAY")) and
certify to Prudential (which certification shall be for the benefit of each
Purchaser) that the Company reasonably believes that it will be able to comply
with the conditions set forth in paragraph 3 on such Rescheduled Closing Day and
that the Company will pay the Delayed Delivery Fee in accordance with paragraph
2B(8)(iii) or (ii) such closing is to be canceled. In the event that the Company
shall fail to give such notice referred to in the preceding sentence, Prudential
(on behalf of each Purchaser) may at its election, at any time after 1:00 P.M.,
New York City local time, on such scheduled Closing Day, notify the Company in
writing that such closing is to be canceled. Notwithstanding anything to the
contrary appearing in this Agreement, the Company may not elect to reschedule a
closing with respect to any given Accepted Notes on more than one occasion,
unless Prudential shall have otherwise consented in writing.
2B(8). FEES.
2B(8)(i). STRUCTURING FEE. At the time of the execution and delivery
of this Agreement by the Company and Prudential, the Company will pay to
Prudential in immediately available funds a fee (herein called the "STRUCTURING
FEE") in the amount of $25,000.00.
2B(8)(ii). ISSUANCE FEE. The Company will pay to Prudential in
immediately available funds a fee (herein called the "ISSUANCE FEE") on each
Closing Day in an amount equal to 0.10% of the aggregate principal amount of
Notes sold on such Closing Day, unless the Company shall have requested pursuant
to the applicable Request for Purchase that such fee be included in the rate
quotes Prudential may provide pursuant to paragraph 2B(4). Notwithstanding the
foregoing, the amount of the Structuring Fee shall be credited to reduce up to
$25,000 in any Issuance Fees payable with respect to any Shelf Notes that are
issued prior to December 31, 2000.
2B(8)(iii). DELAYED DELIVERY FEE. If the closing of the purchase and
sale of any Accepted Note is delayed for any reason beyond the original Closing
Day for such Accepted Note, the Company will pay to Prudential (a) on the
Cancellation Date or actual closing date of such purchase and sale and (b) if
earlier, the next Business Day following 90 days after the Acceptance Day for
such Accepted Note and on each Business Day following 90 days after the prior
payment hereunder, a fee (herein called the "DELAYED DELIVERY FEE") calculated
as follows:
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(BEY - MMY) X DTS/360 X PA
where "BEY" means Bond Equivalent Yield, i.e., the bond equivalent yield per
annum of such Accepted Note; "MMY" means Money Market Yield, i.e., the yield per
annum on a commercial paper investment of the highest quality selected by
Prudential on the date Prudential receives notice of the delay in the closing
for such Accepted Note having a maturity date or dates the same as, or closest
to, the Rescheduled Closing Day or Rescheduled Closing Days (a new alternative
investment being selected by Prudential each time such closing is delayed);
"DTS" means Days to Settlement, i.e., the number of actual days elapsed from and
including the original Closing Day with respect to such Accepted Note (in the
case of the first such payment with respect to such Accepted Note) or from and
including the date of the next preceding payment (in the case of any subsequent
delayed delivery fee payment with respect to such Accepted Note) to but
excluding the date of such payment; and "PA" means Principal Amount, i.e., the
principal amount of the Accepted Note for which such calculation is being made.
In no case shall the Delayed Delivery Fee be less than zero. Nothing contained
herein shall obligate any Purchaser to purchase any Accepted Note on any day
other than the Closing Day for such Accepted Note, as the same may be
rescheduled from time to time in compliance with paragraph 2B(7).
2B(8)(iv). CANCELLATION FEE. If the Company at any time notifies
Prudential in writing that the Company is canceling the closing of the purchase
and sale of any Accepted Note, or if Prudential notifies the Company in writing
under the circumstances set forth in the last sentence of paragraph 2B(5) or the
penultimate sentence of paragraph 2B(7) that the closing of the purchase and
sale of such Accepted Note is to be canceled, or if the closing of the purchase
and sale of such Accepted Note is not consummated on or prior to the last day of
the Issuance Period (the date of any such notification, or the last day of the
Issuance Period, as the case may be, being herein called the "CANCELLATION
DATE"), the Company will pay to Prudential in immediately available funds an
amount (the "CANCELLATION FEE") calculated as follows:
PI X PA
where "PI" means Price Increase, i.e., the quotient (expressed in decimals)
obtained by dividing (a) the excess of the ask price (as determined by
Prudential) of the Hedge Treasury Note(s) on the Cancellation Date over the bid
price (as determined by Prudential) of the Hedge Treasury Notes(s) on the
Acceptance Day for such Accepted Note by (b) such bid price; and "PA" has the
meaning ascribed to it in paragraph 2B(8)(iii). The foregoing bid and ask prices
shall be as reported by Telerate Systems, Inc. (or, if such data for any reason
ceases to be available through Telerate Systems, Inc., any publicly available
source of similar market data). Each price shall be based on a U.S. Treasury
security having a par value of $100.00 and shall be rounded to the second
decimal place. In no case shall the Cancellation Fee be less than zero.
3. CONDITIONS OF CLOSING. The obligation of any Purchaser to
purchase and pay for any Notes is subject to the satisfaction, on or before the
Closing Day for such Notes, of the following conditions:
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3A. CERTAIN DOCUMENTS. Such Purchaser shall have received the
following, each dated the date of the applicable Closing Day:
(i) This Agreement;
(ii) The Note(s) to be purchased by such Purchaser;
(iii) A favorable opinion of ▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, special
counsel to the Company (or such other counsel designated by the Company
and acceptable to the Purchaser(s)) satisfactory to such Purchaser and
substantially in the form of Exhibit D-1 (in the case of the Series I
Notes) or D-2 (in the case of any Shelf Notes) attached hereto and as
to such other matters as such Purchaser may reasonably request. The
Company hereby directs each such counsel to deliver such opinion,
agrees that the issuance and sale of any Notes will constitute a
reconfirmation of such direction, and understands and agrees that each
Purchaser receiving such an opinion will and is hereby authorized to
rely on such opinion;
(iv) a Secretary's Certificate signed by the Secretary or an
Assistant Secretary and one other officer of the Company certifying,
among other things, (A) as to the names, titles and true signatures of
the officers of the Company authorized to sign this Agreement, the
Notes and the other documents to be delivered in connection with this
Agreement, (B) that attached as Exhibit A thereto is a true, accurate
and complete copy of the Articles of Incorporation of the Company,
certified by the Secretary of State of Delaware as of a date not more
than ten Business Days from the Closing Day, (C) that attached as
Exhibit B thereto is a true, accurate and complete copy of the
Company's Bylaws which were duly adopted and are presently in effect
and have been in effect immediately prior to and at all times since the
adoption of the resolutions referred to in clause (D) below, (D) that
attached as Exhibit C thereto is a true, accurate and complete copy of
the resolutions of the Company's Board of Directors (authorizing the
issuance and sale of the Notes and the execution, delivery and
performance of this Agreement) duly adopted by written action or at a
meeting of the Company's Board of Directors, and such resolutions have
not been rescinded, amended or modified and (E) that attached as
Exhibit D thereto is a good standing certificate for the Company from
the Secretary of State of Delaware;
(v) a Secretary's Certificate signed by the Secretary or an
Assistant Secretary and one other officer of each Guarantor certifying
that attached thereto is a true, accurate and complete copy of the
resolutions of such Guarantor's Board of Directors (authorizing the
execution, delivery and performance of the Series I Guaranty) duly
adopted by consent in lieu of a meeting by such Guarantor's Board of
Directors, and such resolutions have not been rescinded, amended or
modified.
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(vi) an Officer's Certificate certifying that (A) the
representations and warranties contained in paragraph 8 shall be true
on and as of the Closing Day, except to the extent of changes caused by
the transactions herein contemplated; and (B) on the date of closing no
Event of Default or Default exists;
(vii) additional documents or certificates with respect to
legal matters or corporate or other proceedings related to the
transactions contemplated hereby as may be reasonably requested by such
Purchaser.
3B. OPINION OF PURCHASER'S SPECIAL COUNSEL. Such Purchaser shall
have received from ▇▇▇▇ ▇. ▇▇▇▇▇▇, Assistant General Counsel of Prudential or
such other counsel who is acting as special counsel for it in connection with
this transaction, a favorable opinion satisfactory to such Purchaser as to such
matters incident to the matters herein contemplated as it may reasonably
request.
3C. REPRESENTATIONS AND WARRANTIES; NO DEFAULT. The
representations and warranties contained in paragraph 8 shall be true on and as
of such Closing Day, except to the extent of changes caused by the transactions
herein contemplated; there shall exist on such Closing Day no Event of Default
or Default; and the Company shall have delivered to such Purchaser an Officer's
Certificate, dated such Closing Day, to both such effects.
3D. PURCHASE PERMITTED BY APPLICABLE LAWS. The purchase of and
payment for the Notes to be purchased by such Purchaser on the terms and
conditions herein provided (including the use of the proceeds of such Notes by
the Company) shall not violate any applicable law or governmental regulation
(including, without limitation, Section 5 of the Securities Act or Regulation U,
T or X of the Board of Governors of the Federal Reserve System) and shall not
subject such Purchaser to any tax, penalty, liability or other onerous condition
under or pursuant to any applicable law or governmental regulation, and such
Purchaser shall have received such certificates or other evidence as it may
request to establish compliance with this condition.
3E. PAYMENT OF FEES. The Company shall have paid to Prudential
any fees due it pursuant to or in connection with this Agreement, including any
Structuring Fee due pursuant to paragraph 2B(8)(i), any Issuance Fee due
pursuant to paragraph 2B(8)(ii) and any Delayed Delivery Fee due pursuant to
paragraph 2B(8)(iii).
3F. SUBSIDIARY GUARANTY. Such Purchaser shall have received a
Guaranty in the form of Exhibit E hereto (the "SERIES I GUARANTY") duly executed
by the Guarantors and the Company.
3G. INTERCREDITOR AMENDMENT. Bank One, Indiana, N.A., as Agent
for the lenders under the Credit Agreement, and the Noteholders shall, prior to
December 31, 2000, have entered into, executed and delivered an amendment to the
Intercreditor Agreement, in a form reasonably satisfactory to the Purchasers
(the "INTERCREDITOR AMENDMENT"), which amendment shall provide for the equal and
ratable sharing of any payments made pursuant to the Series I
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Guaranty, the Series I Guaranty, the Guarantee by the Guarantors with respect to
the Series B-H Notes and the Revolver Guaranty.
4. PREPAYMENTS. The Series I Notes and any Shelf Notes shall be
subject to required prepayment as and to the extent provided in paragraphs 4A
and 4B, respectively. The Series I Notes and any Shelf Notes shall also be
subject to prepayment under the circumstances set forth in paragraphs 4C and 4F.
Any prepayment made by the Company pursuant to any other provision of this
paragraph 4 shall not reduce or otherwise affect its obligation to make any
required prepayment as specified in paragraph 4A or 4B.
4A. REQUIRED PREPAYMENTS OF SERIES I NOTES. Until the Series I
Notes shall be paid in full, the Company shall apply to the prepayment of the
Series I Notes, without Yield-Maintenance Amount, the sum of $25,000,000 on
September 29, 2005 and such principal amounts of the Series I Notes, together
with interest thereon to the payment dates, shall become due on such payment
dates. The remaining unpaid principal amount of the Series I Notes, together
with any accrued and unpaid interest, shall become due on the maturity date of
the Series I Notes.
4B. REQUIRED PREPAYMENTS OF SHELF NOTES. Each Series of Shelf
Notes shall be subject to required prepayments, if any, set forth in the Notes
of such Series.
4C. OPTIONAL PREPAYMENT WITH YIELD-MAINTENANCE AMOUNT. The Notes
of each Series shall be subject to prepayment, in whole at any time or from time
to time in part (in integral multiples of $500,000 and in a minimum amount of
$1,000,000), at the option of the Company, at 100% of the principal amount so
prepaid plus interest thereon to the prepayment date and the Yield-Maintenance
Amount, if any, with respect to each such Note. Any partial prepayment of a
Series of the Notes pursuant to this paragraph 4C shall be applied in
satisfaction of required payments of principal in inverse order of their
scheduled due dates.
4D. NOTICE OF OPTIONAL PREPAYMENT. The Company shall give the
holder of each Note of a Series to be prepaid pursuant to paragraph 4C
irrevocable written notice of such prepayment not less than 10 Business Days
prior to the prepayment date, specifying such prepayment date, the aggregate
principal amount of the Notes of such Series to be prepaid on such date, the
principal amount of the Notes of such Series held by such holder to be prepaid
on that date and that such prepayment is to be made pursuant to paragraph 4C.
Notice of prepayment having been given as aforesaid, the principal amount of the
Notes specified in such notice, together with interest thereon to the prepayment
date and together with the Yield-Maintenance Amount, if any, herein provided,
shall become due and payable on such prepayment date. The Company shall, on or
before the day on which it gives written notice of any prepayment pursuant to
paragraph 4C, give telephonic notice of the principal amount of the Notes to be
prepaid and the prepayment date to each Significant Holder which shall have
designated a recipient for such notices in the Purchaser Schedule attached
hereto or the applicable Confirmation of Acceptance or by notice in writing to
the Company.
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4E. APPLICATION OF PREPAYMENTS. In the case of each prepayment
of less than the entire unpaid principal amount of all outstanding Notes of any
Series pursuant to paragraphs 4A, 4B or 4C, the amount to be prepaid shall be
applied pro rata to all outstanding Notes of such Series (including, for the
purpose of this paragraph 4E only, all Notes prepaid or otherwise retired or
purchased or otherwise acquired by the Company or any of its Subsidiaries or
Affiliates other than by prepayment pursuant to paragraph 4A, 4B or 4C)
according to the respective unpaid principal amounts thereof.
4F. CHANGE IN CONTROL PREPAYMENT.
(i) NOTICE OF CHANGE IN CONTROL OR CONTROL EVENT. The
Company will, promptly after the occurrence of any Change in Control or
Control Event, but in any event within two Business Days thereafter,
give written notice of such Change in Control or Control Event to each
holder of Notes. In the case that a Change in Control has occurred,
such notice shall contain and constitute an offer to prepay Notes as
described in subparagraph (ii) of this paragraph 4F and shall be
accompanied by the certificate described in subparagraph (vi) of this
paragraph 4F.
(ii) OFFER TO PREPAY NOTES. The offer to prepay Notes
contemplated by subparagraph (i) of this paragraph 4F shall be an offer
to prepay, in accordance with and subject to this paragraph 4F, 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 the later of a date certain, set forth in such offer, which
shall not be less than 30 days nor more than 60 days after the date of
such offer (the "PROPOSED PREPAYMENT DATE") or, if such prepayment date
is extended to a later date pursuant to subparagraph (v)(b) of this
paragraph 4F, such later date.
(iii) ACCEPTANCE; REJECTION. A holder of Notes may accept
the offer to prepay made pursuant to this paragraph 4F by causing a
notice of such acceptance to be delivered to the Company at least 7
days prior to the Proposed Prepayment Date. A failure by a holder of
Notes to respond to an offer to prepay made pursuant to this paragraph
4F shall, except as otherwise provided in subparagraph (v) of this
▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇ deemed to constitute a rejection of such offer by such
holder. The Company will, immediately after receiving a notice of
acceptance pursuant to this subparagraph (iii) from any holder of
Notes, given written notice thereof to each other holder of Notes (the
date of the first such notice by the Company being called the
"ACCEPTANCE NOTICE DATE")
(iv) PREPAYMENT. Prepayment of the Notes to be prepaid
pursuant to this paragraph 4F shall be at 100% of the principal amount
of such Notes, plus the Yield-Maintenance Amount 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 later of the Proposed Prepayment ▇▇▇▇
or, if such
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prepayment date is extended to a later date pursuant to subparagraph
(v) (b) of this paragraph 4F, such later date.
(v) RELINQUISHMENT OF RIGHTS. Any holder of Notes (a
"RELINQUISHING HOLDER") may, by notice to the company invoking the
provisions of this subparagraph (v), irrevocably relinquish, for itself
only but not for any subsequent holder of such holder's Notes, the
right to have its Notes prepaid pursuant to this paragraph 4F unless
any other holder of any Notes accepts an offer to prepay Notes pursuant
to subparagraph (iii) of this paragraph 4F. In the event that there is
one or more Relinquishing Holders at any time and any other holder of
any Notes accepts an offer to prepay Notes pursuant to subparagraph
(iii) of this paragraph 4F, then (a) any such Relinquishing Holder may
accept the offer to prepay made pursuant to this paragraph 4F by
causing a notice of such acceptance to be delivered to the Company on
or before the 15th day after the Acceptance Notice Date, and (b) the
date for the prepayment of the Notes to be prepaid pursuant to this
paragraph 4F shall be extended to the 20th day after the Acceptance
Notice Date.
(vi) OFFICER'S CERTIFICATE. Each offer to prepay the Notes
pursuant to this paragraph 4F shall be accompanied by a certificate,
executed by a Senior Financial Officer of the Company and dated the
date of such offer, specifying: (a) the Proposed Prepayment Date; (b)
that such offer is made pursuant to this paragraph 4F; (c) the
principal amount of each Note offered to be prepaid; (d) the estimated
Yield-Maintenance 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; (e) the
interest that would be due on each Note offered to be prepaid, accrued
to the Proposed Prepayment Date; (f) that the conditions of this
paragraph 4F have been fulfilled; and (g) in reasonable detail, the
nature and date of the Change in Control or Control Event.
4G. NO ACQUISITION OF NOTES. The Company shall not, and shall
not permit any of its Subsidiaries or Affiliates to, prepay or otherwise retire
in whole or in part prior to their stated final maturity (other than by
prepayment pursuant to paragraphs 4A, 4B, 4C or 4F, or upon acceleration of such
final maturity pursuant to paragraph 7A), or purchase or otherwise acquire,
directly or indirectly, Notes held by any holder. Any notes so prepaid or
otherwise retired or purchased or otherwise acquired by the Company or any of
its Subsidiaries or Affiliates shall not be deemed to be outstanding for any
purpose under this Agreement, except as provided in paragraph 4E.
5. AFFIRMATIVE COVENANTS. During the Issuance Period and so
long thereafter as any Note is outstanding and unpaid, the Company covenants as
follows:
5A. FINANCIAL STATEMENTS; NOTICE OF DEFAULTS. The Company
covenants that it will deliver to each Significant Holder in triplicate:
(i) as soon as practicable and in any event within 45 days
after the end of each quarterly period (other than the last quarterly
period) in each fiscal year
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consolidating and consolidated statements of income, and cash flows and
a consolidated statement of shareholders' equity of the Company and its
Subsidiaries for the period from the beginning of the current fiscal
year to the end of such quarterly period, and a consolidating and
consolidated balance sheet of the Company and its Subsidiaries as at
the end of such quarterly period, setting forth in each case in
comparative form figures for the corresponding period in the preceding
fiscal year, all in reasonable detail and certified by an authorized
financial officer of the Company, subject to changes resulting from
year-end adjustments; provided, however, that delivery pursuant to
clause (iii) below of copies of the Quarterly Report on From 10-Q of
the Company for such quarterly period filed with the Securities and
Exchange Commission shall be deemed to satisfy the requirements of this
clause (i) with respect to consolidated statements;
(ii) as soon as practicable and in any event within 90 days
after the end of each fiscal year, consolidating and consolidated
statements of income and cash flows and a consolidated statement of
shareholders' equity of the Company and its Subsidiaries for such year,
and a consolidating and consolidated balance sheet of the Company and
its Subsidiaries as at the end of such year, setting forth in each case
in comparative form corresponding consolidated figures from the
preceding annual audit, all in reasonable detail and satisfactory in
form to the Required Holder(s) and, as to the consolidated statements,
reported on by independent public accountants of recognized national
standing selected by the Company whose report shall be without
limitation as to scope of the audit and satisfactory in substance to
the Required Holder(s) and, as to the consolidating statements,
certified by an authorized financial officer of the Company provided,
however, that delivery pursuant to clause (iii) below of copies of the
Annual Report on Form 10-K of the Company for such fiscal year filed
with the Securities and Exchange Commission shall be deemed to satisfy
the requirements of this clause (ii) with respect to consolidated
statements;
(iii) promptly upon their becoming available, one copy of
(a) each financial statement, report, notice or proxy statement sent by
the Company or any Restricted Subsidiary to public securities holders
generally, and (b) each regular or periodic report, each registration
statement that shall have become effective (other than registration
statements relating to employee benefit plans on Form 5-8, and without
exhibits except as expressly requested by such holder), and each
related final prospectus and all amendments thereto filed by the
Company or any Restricted Subsidiary with the Securities and Exchange
Commission;
(iv) promptly, and in any event within five days after a
Responsible Officer becoming aware of the existence thereof, a written
notice specifying any Default or Event of Default and the nature and
period of existence thereof and what action the Company is taking or
proposes to take with respect thereto;
(v) 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
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thereof and the action, if any, that the Company or an ERISA Affiliate
proposes to take with respect thereto:
(a) 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
(b) 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
(c) any event, transaction or condition that could
result in the incurrence of any liability by the Company or
any ERISA Affiliate pursuant to Title I or IV of ERISA or the
penalty or excise tax provisions of the Code relating to
employee benefit plans, or in the imposition of any Lien on
any of the rights, properties or assets of the Company or any
ERISA Affiliate pursuant to Title I or IV of ERISA or such
penalty or excise tax provisions, if such liability or Lien,
taken together with any other such liabilities or Liens then
existing, would reasonably be expected to have a Material
Adverse Effect; and
(vi) 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.
Together with each delivery of financial statements required by clauses (i) and
(ii) above, the Company will deliver to each Significant Holder an Officer's
Certificate demonstrating (with computations in reasonable detail) compliance by
the Company and its Subsidiaries with the provisions of paragraph 6 and stating
that there exists no Event of Default or Default, or, if any Event of Default or
Default exists, specifying the nature and period of existence thereof and what
action the Company proposes to take with respect thereto. Together with each
delivery of financial statements required by clause (ii) above, the Company will
deliver to each Significant Holder a certificate of such accountants 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.
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5B. INFORMATION REQUIRED BY RULE 144A. The Company covenants
that it will, upon the request of the holder of any Note, provide such holder,
and any qualified institutional buyer designated by such holder, such financial
and other information as such holder may reasonably determine to be necessary in
order to permit compliance with the information requirements of Rule 144A under
the Securities Act in connection with the resale of Notes, except at such times
as the Company is subject to and in compliance with the reporting requirements
of section 13 or 15(d) of the Exchange Act. For the purpose of this paragraph
5B, the term "QUALIFIED INSTITUTIONAL BUYER" shall have the meaning specified in
Rule 144A under the Securities Act.
5C. INSPECTION OF PROPERTY. The Company covenants that it will
permit any Person designated by any Significant Holder in writing, at such
Significant Holder's expense (if no Default or Event of Default exists), to
visit and inspect any of the properties of the Company and its Subsidiaries, to
examine the corporate books and financial records of the Company and its
Subsidiaries and make copies thereof or extracts therefrom and to discuss the
affairs, finances and accounts of any of such corporations with the principal
officers of the Company and its independent public accountants, all at such
reasonable times and as often as such Significant Holder may reasonably request.
If an Event of Default or Default then exists, any visit and/or inspection
pursuant to this paragraph 5C shall be at the expense of the Company.
5D. COVENANT TO SECURE NOTES EQUALLY. The Company covenants
that, if it or any Subsidiary shall create or assume any Lien upon any of its
property or assets, whether now owned or hereafter acquired, other than Liens
permitted by the provisions of paragraph 6B(1) (unless prior written consent to
the creation or assumption thereof shall have been obtained pursuant to
paragraph 11C), 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
Debt thereby secured so long as any such other Debt shall be so secured.
5E. COMPLIANCE WITH LAWS. The Company covenants that it shall,
and shall cause each Restricted Subsidiary to, comply with all applicable laws,
rules, regulations, decrees and orders of all federal, state, local or foreign
courts or governmental agencies, authorities, instrumentalities or regulatory
bodies the noncompliance with which could be reasonably expected to result in a
material adverse effect on the business, assets, operations or condition
(financial or otherwise) of the Company and its Restricted Subsidiaries taken as
a whole.
5F. MAINTENANCE OF INSURANCE. The Company covenants that it and
each of its Restricted Subsidiaries will maintain, with financially sound and
reputable insurers, insurance in such amounts and against such liabilities and
hazards as customarily is maintained by the other companies operating similar
businesses. Together with each delivery of financial statements under paragraph
5A, the Company will, upon the request of any Significant Holder, deliver an
Officer's Certificate specifying the details of such insurance in effect.
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5G. INTERCREDITOR AMENDMENT COUPON ADJUSTMENT. If, as of
December 31, 2000, the Intercreditor Amendment has not been delivered to the
Purchasers, the interest payable with respect to each outstanding Note shall,
until the Intercreditor Amendment has been delivered, be immediately adjusted to
equal (a) the interest rate affixed on the face of each such Note plus (b) .75%.
6. NEGATIVE COVENANTS. During the Issuance Period and so long
thereafter as any Note or other amount due hereunder is outstanding and unpaid,
the Company covenants as follows:
6A. MINIMUM CONSOLIDATED TANGIBLE NET WORTH. The Company will
not permit Consolidated Tangible Net Worth at any time to be less than the sum
of (a) $135,000,000 plus (b) 25% of Consolidated Net Income computed on a
cumulative basis for each of the elapsed fiscal quarters ending after December
31, 2000; provided that notwithstanding that Consolidated Net Income for any
such elapsed fiscal quarter may be a deficit figure, no reduction as a result
thereof shall be made on the sum to be maintained pursuant hereto.
6B. LIEN, DEBT AND OTHER RESTRICTIONS. The Company will not and
will not permit any Restricted Subsidiary to:
6B(1). LIENS. Create, assume or suffer to exist any Lien upon any
of its properties or assets, whether now owned or hereafter acquired (whether or
not provision is made for the equal and ratable securing of the Notes in
accordance with the provisions of paragraph 5D), except:
(a) Liens for taxes, assessments or other governmental
charges not yet due or which are being actively contested in good faith
by appropriate proceedings,
(b) 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 or the obtaining of an advance
or credit, and which do not in the aggregate materially detract from
the value of the property or assets, or materially impair the use
thereof in the operation of the business, of the Company and its
Restricted Subsidiaries, taken as a whole,
(c) Liens on property or assets of a Restricted Subsidiary
to secure obligations of such Restricted Subsidiary to the Company or
to a Wholly-Owned Restricted Subsidiary,
(d) Liens created by or resulting from any litigation or
legal proceeding which is currently being contested in good faith by
appropriate proceedings, provided that the enforcement of such Liens is
effectively stayed by such contest.
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(e) Liens in existence on Property of the Company or any
Restricted Subsidiary on the date hereof and identified on Schedule
6B(1) hereto,
(f) any Liens renewing, extending or refunding any Lien
permitted by clause (e) of this paragraph 6B(1), provided that the
principal amount of the obligations secured thereby is not increased
and the Lien is not extended to other Property,
(g) (i) any Lien in Property or in rights relating thereto
to secure all or a part of the purchase price or cost of the
construction of, or Debt incurred to pay all or a portion of the
purchase price or cost of construction of, such Property, which Liens
are created contemporaneously with, or within 180 days after, such
acquisition or the completion of such construction by the Company or a
Restricted Subsidiary, (ii) any Lien in Property existing in such
Property at the time of acquisition thereof whether or not the Debt
secured thereby is assumed by the Company or such Restricted
Subsidiary, or (iii) any Lien existing in the Property of a corporation
at the time such corporation is merged into or consolidated with the
Company or a Restricted Subsidiary or existing in the Property of a
corporation or firm at the time of a sale, lease or other disposition
of the Properties of such corporation or firm as an entirety or
substantially as an entirety to the Company or a Restricted Subsidiary;
provided, however, that, in each case the obligations secured by any
such Lien shall not exceed 100% of the fair market value of the related
Property at the time of such acquisition, completion of construction,
merger, consolidation, sale, lease or other disposition, as the case
may be, and any such Lien shall attach solely to the Property acquired
or constructed; and,
(h) Liens arising in connection with a Qualifying
Securitization Transaction on Qualifying Receivables which are the
subject of a Qualifying Securitization Transaction and any equipment,
collections, accounts and other Property relating thereto;
(i) Liens securing other Priority Debt permitted under
paragraph 6B(3); and
(j) other Liens incidental to the normal conduct of the
business of the Company or any Restricted Subsidiary or the ownership
of its property (including, without limitation, Liens arising from
licenses or sublicenses granted by the Company or any Restricted
Subsidiary) which are not incurred in connection with the incurrence of
Debt and which do not in the aggregate materially impair the use of
such property in the operation of the business of the Company and its
Restricted Subsidiaries taken as a whole or the value of such property
for the purposes of such business.
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6B(2). FUNDED DEBT. Create, incur, assume or suffer to exist any
Funded Debt, except:
(a) the Notes;
(b) the Series A Notes; and the Series B-H Notes,
(c) Funded Debt existing on the Series I Closing Day, all of
which is set forth on Schedule 6B(2) hereto, and any renewals,
extensions and refundings thereof, provided that the principal amount
thereof shall not be increased;
(d) other Funded Debt provided that, in the case of (a), (b)
or (c), immediately after giving effect to the creation, incurrence or
assumption of such Funded Debt (i) the aggregate amount of all Funded
Debt of the Company and its Restricted Subsidiaries on a consolidated
basis does not exceed 60% of Consolidated Total Capitalization as of
the end of the immediately prior fiscal quarter, and (ii) if such
Funded Debt is Priority Debt, such creation, incurrence or assumption
is permitted by paragraph 6B(3);
(e) Debt consisting of (i) intercompany loans from Wabash
Technology Corp. to Wabash National, L.P. and (ii) intercompany loans
from WTSI Technology Corp. to Wabash National, L.P.; and
(f) Debt arising under the Series I Guaranty, the Note
Guaranty, Guarantees by the Guarantors with respect to the Series B-H
Notes and the Revolver Guaranty.
6B(3). PRIORITY DEBT. Create, incur, assume or suffer to exist any
Priority Debt unless (a) the aggregate amount of all Priority Debt outstanding
at any time does not exceed 20% of Consolidated Adjusted Net Worth at such time,
and (b) the creation, incurrence or assumption of such Priority Debt is
permitted by paragraph 6B(2).
6B(4). SALE OF STOCK AND DEBT OF SUBSIDIARIES. Sell or otherwise
dispose of, or part with control of, any shares of stock or Debt of any
Subsidiary, except (i) to the Company or Wholly-Owned Restricted Subsidiary, and
(ii) that all shares of stock and Debt of any Subsidiary at the time owned by or
owed to the Company and all Subsidiaries may be sold as an entirety for a cash
consideration which represents the fair value (as determined in good faith by
the Board of Directors of the Company) at the time of sale of the shares of
stock and Debt so sold; provided that (a) such sale or other disposition, if
treated as a Transfer of assets of such Subsidiary, would be permitted by
paragraph 6B(6) and (b) at the time of such sale, such Subsidiary shall not own,
directly or indirectly, any shares of stock or Debt of any other Subsidiary
(unless all of the shares of stock and Debt of such other Subsidiary owned,
directly or indirectly, by the Company and all Subsidiaries are simultaneously
being sold as permitted by this paragraph 6B(4));
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6B(5). MERGER AND CONSOLIDATION. Consolidate with or merge with or
into any Person except:
(a) the Company may consolidate with or merge with or into
any other corporation provided that (i) the successor formed by such
consolidation or the survivor of such merger, as the case may be, shall
be a solvent corporation organized and existing under the laws of the
United States or any State thereof (including the District of
Columbia), and, if the Company is not such corporation, such
corporation shall have executed and delivered to each holder of any
Notes its assumption agreement, in form and substance reasonably
satisfactory to the Required Holders, of the due and punctual payment
of the Notes and performance and observance of each covenant and
condition of this Agreement and the Notes, and (ii) immediately after
giving effect to such transaction, no Default or Event of Default shall
have occurred and be continuing and such successor or survivor would be
permitted to incur at least $1.00 of additional Funded Debt under the
provisions of paragraph 6B(2) hereof; and
(b) any Restricted Subsidiary may merge with any other
Restricted Subsidiary.
6B(6). TRANSFER OF PROPERTY. Transfer any of its Property if, after
giving effect to such Transfer, the aggregate Value of all Property Transferred
(other than as permitted by clauses (a), (b) or (c) of this paragraph 6B(6) on
or after the Series I Closing Day shall exceed 25% of Consolidated Total Assets
as of the Series I Closing Day, except:
(a) the Transfer in the ordinary course of business of (i)
inventory held for sale or (ii) equipment, fixtures, supplies or
materials no longer required in the operation of the business of the
Company or such Restricted Subsidiary or that is obsolete;
(b) (b)(i) the Company or any Restricted Subsidiary may
Transfer Qualifying Receivables in connection with a Qualifying
Securitization Transaction, and (ii) Wabash Finance may Transfer, in
the ordinary course of its business, lease and other finance contract
receivables and equipment subject to lease; provided, however, (x) in
the case of Transfers described in clause (b)(i), above, that any
Special Purpose Subsidiary shall not own any Property or conduct any
activities other than those Properties and activities which are
reasonably required to be owned and conducted in connection with the
involvement of such Subsidiary in Qualifying Securitization
Transactions, and (y) in the case of Transfers described in clause
(b)(ii), that (A) the proceeds received by Wabash Finance in connection
with such Transfer shall be not less than the fair market value of the
Property which is the subject of such Transfer and (B) the aggregate
Value of all Property described in clause (b)(ii) and subject of
Transfers during the then current fiscal year of Wabash Finance is not
greater than 50% of Wabash Finance's Tangible Assets as of the end of
Wabash Finance's fiscal year then most recently ended;
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(c) any Restricted Subsidiary may Transfer Property to the
Company or another Wholly-Owned Restricted Subsidiary;
(d) either: (i) prior to, or contemporaneously with, such
Transfer the Company shall have delivered to each holder of a Note an
Officer's Certificate certifying that the Company is electing to use
the Excess Net Proceeds from such Transfer in the manner provided in
this clause (i) and, within one year after the date of such Transfer,
the Company or the Restricted Subsidiary making such Transfer shall
have used such Excess Net Proceeds to acquire other Property having a
fair market value at least equal to the Value of the Property
Transferred, provided that such acquired Property shall not be subject
to any Lien to any greater extent than the Liens to which the Property
transferred was subject to, or (ii) the Company shall not less than 30
days nor more than 60 days prior to the date of such Transfer offer
pursuant to a written notice (the "ASSET DISPOSITION PREPAYMENT
NOTICE") to apply on a pro rata basis the Excess Net Proceeds to which
such assets relate towards the prepayment of all outstanding Senior
Funded Debt of the Company (including, without limitation, the Notes
pursuant to paragraph 4C hereof, together with accrued interest
thereon, including the premium provided for in said paragraph 4C). Such
Asset Disposition Prepayment Notice shall specify (A) a date (the
"ASSET DISPOSITION PREPAYMENT DATE"), which shall be not less than 120
days nor more than 180 days following the date of such Asset
Disposition Prepayment Notice, on which the Company will apply such
Excess Net Proceeds to the prepayment on a pro rata basis of all of the
outstanding Senior Funded Debt of the Company held by any Person which
accepts such offer of prepayment and (B) a date, which shall be not
more than 60 days nor less than 30 days prior to such Asset Disposition
Prepayment Date, on which each holder of Senior Funded Debt of the
Company must accept or decline such offer of prepayment. Without
limiting the foregoing, the Company shall not more than 15 days nor
less than 10 days prior to such Asset Disposition Prepayment Date send
a second written notice (the "SECONDARY ASSET DISPOSITION PREPAYMENT
NOTICE") to all holders of outstanding Senior Funded Debt of the
Company notifying each such holder of the decision of each other holder
of Senior Funded Debt of the Company to accept or reject such offer of
prepayment and in such Secondary Asset Disposition Prepayment Notice
offer to each holder of outstanding Senior Funded Debt to apply on a
pro rata basis the amount of such Excess Net Proceeds which will not be
applied to such prepayment by virtue of any such holder of Senior
Funded Debt having declined the original offer of prepayment. On such
Asset Disposition Prepayment Date, the Company shall apply the amount
of such Excess Net Proceeds which has been agreed or deemed to be
agreed by holders of Senior Funded Debt of the Company pursuant to any
agreement pursuant to which any such Senior Funded Debt is outstanding
shall be applied to the prepayment of Senior Funded Debt held by each
holder thereof which has accepted or been deemed to accept such initial
offer of prepayment or such initial offer and such secondary offer of
prepayment, as the case may be, to the prepayment of Senior Funded Debt
as and to the extent herein contemplated. It is understood and agreed
by the Company and each holder of the Notes by its acceptance thereof
that any such holder may decline any such offer of prepayment, that the
failure of any such holder to accept or decline any such offer of
prepayment shall
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be deemed to be an election by such holder to accept such prepayment
and that if any such offer is so accepted, the Excess Net Proceeds so
offered towards the prepayment of the Notes and accepted shall be
prepaid, together with the premium provided for in paragraph 4C.
6B(7). TRANSACTIONS WITH AFFILIATES. 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 Restricted Subsidiary), except pursuant to
the reasonable requirements of the Company's or such Restricted Subsidiary's
business and upon fair and reasonable terms no less favorable to the Company or
such Restricted Subsidiary than would be obtainable in a comparable arm's-length
transaction with a Person not an Affiliate. It is understood and agreed by the
parties hereto that (i) sales of Qualifying Receivables in connection with
Qualifying Securitization Transactions, and (ii) intercompany loans and
transactions that are reasonably related to Qualifying Securitization
Transactions shall not be deemed to violate this paragraph 6B(7).
6B(8). RESTRICTED PAYMENTS. Declare or make any Restricted Payments
in any fiscal quarter unless, immediately after giving effect thereto (a) the
aggregate amount of all Restricted Payments declared or made by the Company and
its Restricted Payments in such fiscal quarter does not exceed the Restricted
Payment Amount for such fiscal quarter, and (b) no Default or Event of Default
shall have occurred and the continuing and the Company would be permitted to
incur at least $1.00 of additional Funded Debt under the provision of paragraph
6B(2) hereof; provided, however, that notwithstanding anything to the contrary
contained in the first part of this sentence, a Restricted Subsidiary may at any
time pay dividends or make other distributions to the Company and prepay any
Debt owed to the Company.
6B(9). LIMITATIONS ON RESTRICTIVE AGREEMENTS. Enter into, or suffer
to exist, any agreement with any Person which, directly or indirectly, prohibits
or limits the ability of any Restricted Subsidiary to (a) pay dividends or make
other distributions to the Company or prepay any Debt owed to the Company or (b)
transfer any of its properties or assets to the Company (other than (i) such
restrictions on transfers of assets as are contained in the Credit Agreement as
in effect on the Series I Closing Day and (ii) with respect to assets subject to
Liens permitted by paragraph 6B(1).
6B(10). ADDITIONAL SUBSIDIARY GUARANTORS. (a) If, as of the end of
any fiscal quarter of the Company (commending with the fiscal quarter ending on
December 31, 1999), either (1) the aggregate Available Assets of the Company and
the Guarantors were less than 75% of the Consolidated Total Assets as of such
date or (2) the Company and the Guarantors accounted for less than 75% of the
Consolidated Net Income (or, if Consolidated Net Income was not positive, less
than 75% of the consolidated net sales of the Company and its Restricted
Subsidiaries) for the four fiscal quarter period then ended, then within 90 days
(or if such fiscal quarter is the last fiscal quarter of the Company's fiscal
year, 120 days) after the end of such fiscal quarter, the Company shall cause
one or more additional Restricted Subsidiaries to execute
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and deliver a supplement to the Series I Guaranty in the form of Exhibit A to
the Series I Guaranty so that, after taking such additional Guarantors into
account, both (A) the aggregate Available Assets of the Company and the
Guarantors accounted for at least 75% of the Consolidated Net Income (or, if
Consolidated Net Income was not positive, at least 75% of the consolidated net
sales of the Company and its Restricted Subsidiaries) for the four fiscal
quarter period then ended. In addition, concurrently with any Restricted
Subsidiary (other than the Initial Guarantors) entering into a guaranty in
respect of any Debt of the Company under the Credit Agreement, the Company shall
cause such Restricted Subsidiary to execute and deliver a supplement to the
Series I Guaranty in the form of Exhibit A to the Series I Guaranty.
(b) Concurrently with the execution and delivery by a
Restricted Subsidiary of a supplement to the Series I Guaranty, the Company
shall cause such Restricted Subsidiary to deliver to each holder of Notes (1)
such documents and evidence with respect to such Restricted Subsidiary as the
Required Holders may reasonably request in writing in order to establish the
existence and good standing of such Restricted Subsidiary and evidence that the
Board of Directors or other governing body of such Restricted Subsidiary (as
applicable) has adopted resolutions or taken other appropriate action (as
applicable) authorizing the execution and delivery of a supplement to the Series
I Guaranty, (2) an acknowledgment, in form and substance satisfactory to the
Required Holders, of such Restricted Subsidiary's Agreement to be bound by the
terms of the Intercreditor Agreement, and (3) an opinion of counsel to the
effect that (i) such Restricted Subsidiary is a corporation or other business
entity, duly organized, validly existing and in good standing, if applicable,
under the laws of its jurisdiction of organization, has the power and the
authority to execute and deliver a supplement to the Series I Guaranty and to
perform the Series I Guaranty, (ii) the execution and delivery of a supplement
to the Series I Guaranty and performance of the Series I Guaranty has been duly
authorized by all necessary action on the part of such Restricted Subsidiary, a
supplement to the Series I Guaranty has been duly executed and delivered by such
Restricted Subsidiary and the Series I Guaranty constitutes the legal, valid and
binding contract of such Restricted Subsidiary enforceable against such
Restricted Subsidiary in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent conveyance or similar laws affecting creditors' rights
generally, and general principles of equity (regardless of whether the
application of such principles is considered in a proceeding in equity or at
law), (iii) the execution and delivery of a supplement to the Series I Guaranty
and the performance by such Restricted Subsidiary of the Series I Guaranty do
not conflict with or result in any breach of any of the provisions of or
constitute a default under or result in the creation of a Lien upon any of the
property of such Restricted Subsidiary pursuant to the provisions of its charter
documents or any agreement or other instrument known to such counsel to which
such Restricted Subsidiary is a party to or by which such Restricted Subsidiary
may be bound and (iv) no approval, consent or withholding of objection on the
part of, or filing, registration or qualification with, any Governmental
Authority, Federal or state, is necessary in connection with the lawful
execution and delivery of a supplement to the Series I Guaranty by such
Restricted Subsidiary or the performance of the Series I Guaranty by such
Restricted Subsidiary, which opinion may contain such assumptions and
qualifications as are reasonably acceptable to the Required Holders.
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(c) If (i) as of the end of any fiscal quarter of the Company
(commencing with the fiscal quarter ending on December 31, 2000), the Company
and certain Guarantors (the "CONTINUING GUARANTORS") have satisfied the
conditions set forth in clauses (A) and (B) of the first sentence of paragraph
6B(10)(a) of four consecutive fiscal quarters, ending with such fiscal quarter,
(ii) within 90 days (or, if such fiscal quarter is the last fiscal quarter of
the Company's fiscal year, 120 days) after the end of such fiscal quarter, the
Company delivers to the holders of the Notes a certificate setting forth
calculations (in a form reasonably satisfactory to the Required Holders) for the
Company and the Continuing Guarantors for each of such four consecutive fiscal
quarters demonstrating compliance with the preceding clause (i), and (iii) no
Event of Default or Default shall have occurred since the beginning of such four
fiscal quarter period (and the Company's certificate required by the preceding
clause (ii) contains a representation and warranty to such effect), then the
Company may deliver to the holders of the Notes, together with such certificate,
a request to release any Guarantor or Guarantors, other than the continuing
Guarantors, from the Series I Guaranty, and the Required Holders shall promptly
execute and deliver such a release (in a form reasonably satisfactory to the
Required Holders), provided, however, that the Required Holders shall not be
obligated to release any Guarantor pursuant hereto unless such Guarantor shall
concurrently be released from any guaranty of the Company's obligations under
the Credit Agreement.
6C. MOST FAVORED LENDER. Unless otherwise specified in writing
by the Required Holder(s), the Company will not, and will not permit any
Subsidiary to, agree to, with or for the benefit of the holder(s) of any other
Debt of the Company or any Subsidiary in an aggregate outstanding principal
amount in excess of $25,000,000 or with or for the benefit of Persons with
commitments to provide loans or other financial accommodations to the Company or
any Subsidiary in an aggregate principal amount in excess of $25,000,000, any
financial or restrictive covenants or events of default which are more
restrictive than, or in addition to, the financial or negative covenants or
Events of Default contained in this Agreement, unless the Company has entered
into, or has caused such Subsidiary to enter into, an agreement with the holders
of the Notes, in form and substance reasonably satisfactory to the holders of
the Notes, whereby such financial or negative covenants or events of default are
added to this Agreement for the benefit of the Notes, and any conditions
precedent to the effectiveness of such agreement have been satisfied; provided,
however, the Required Holder(s) agree that any covenant or event of default
added to this Agreement solely by virtue of this provision shall be eliminated
or made less restrictive, as the case may be, at the request of the Company if
all such other agreements which contain such covenant or event of default have
been modified to eliminate or make less restrictive, as the case may be, such
covenant or event of default and (i) no default or event of default was
continuing at the time of such modification (or series of related modifications)
under such other agreements, (ii) the Company paid no compensation to such other
lender(s) in connection with such modification (or series of related
modifications and (iii) no Default or Event of Default shall be continuing under
this Agreement).
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7. EVENTS OF DEFAULT.
7A. ACCELERATION. If any of the following events shall occur and
be continuing for any reason whatsoever (and whether such occurrence shall be
voluntary or involuntary or come about or be effected by operation of law or
otherwise):
(i) the Company defaults in the payment of any principal of,
or Yield-Maintenance Amount payable with respect to, any Note when the
same shall become due, either by the terms thereof or otherwise as
herein provided; or
(ii) the Company defaults in the payment of any interest on
any Note for more than five Business Days after the date due; or
(iii) the Company or any Restricted Subsidiary defaults
(whether as primary obligor or as guarantor or other surety) in any
payment of principal of or interest on any other obligation for money
borrowed (or any Capitalized Lease Obligation, any obligation under a
conditional sale or other title retention agreement, any obligation
issued or assumed as full or partial payment for property whether or
not secured by a purchase money mortgage or any obligation under notes
payable or drafts accepted representing extensions of credit) beyond
any period of grace provided with respect thereto, or the Company or
any Restricted Subsidiary fails to perform or observe any other
agreement, term or condition contained in any agreement under which any
such obligation is created (or if any other event thereunder or under
any such agreement shall occur and be continuing) and the effect of
such failure or other event is to cause, or to permit the holder or
holders of such obligation (or a trustee on behalf of such holder or
holders) to cause, such obligation to become due (or to be repurchased
by the Company or any Restricted Subsidiary) prior to any stated
maturity, provided that the aggregate amount of all obligations as to
which such a payment default shall occur and be continuing or such a
failure or other event causing or permitting acceleration (or resale to
the Company or any Restricted Subsidiary) shall occur and be continuing
exceeds $5,000,000; or
(iv) any representation or warranty made by the Company
herein or by the Company or any Restricted Subsidiary or by any officer
of the Company or any Restricted Subsidiary in this Agreement or in any
writing furnished in connection with or pursuant to this Agreement
shall be false or incorrect in any material respect on the date as of
which made; or
(v) the Company fails to perform or observe any agreement
contained in paragraph 5A or 6 and such default is not remedied within
10 days after the earlier of (i) a Responsible Officer obtaining actual
knowledge of such default and (2) 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 subparagraph (v) of paragraph 7A); or
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(vi) the Company fails to perform or observe any other
agreement, term or condition contained herein and such failure shall
not be remedied within 30 days after the earlier of (i) a Responsible
Officer obtaining actual knowledge of such default and (ii) the Company
receiving written notice of such default from any holder of a Note (any
such written notice to be identified as a "notice of default" and to
refer specifically to this subclause (vi) of paragraph 7A); or
(vii) the Company or any Restricted Subsidiary makes an
assignment for the benefit of creditors or is generally not paying its
debts as such debts become due; or
(viii) any decree or order for relief in respect of the
Company or any Restricted Subsidiary is entered under any bankruptcy,
reorganization, compromise, arrangement, insolvency, readjustment of
debt, dissolution or liquidation or similar law, whether now or
hereafter in effect (herein called the "BANKRUPTCY LAW"), of any
jurisdiction; or
(ix) the Company or any Restricted Subsidiary petitions or
applies to any tribunal for, or consents to, the appointment of, or
taking possession by, a trustee, receiver, custodian, liquidator or
similar official of the Company or any Restricted Subsidiary, or of any
substantial part of the assets of the Company or any Restricted
Subsidiary, or commences a voluntary case under the Bankruptcy Law of
the United States or any proceedings (other than proceedings for the
voluntary liquidation and dissolution of a Restricted Subsidiary)
relating to the Company or any Restricted Subsidiary under the
Bankruptcy Law of any other jurisdiction; or
(x) any such petition or application is filed, or any such
proceedings are commenced, against the Company or any Restricted
Subsidiary and the Company or such Restricted Subsidiary by any act
indicates its approval thereof, consent thereto or acquiescence
therein, or an order, judgment or decree is entered appointing any such
trustee, receiver, custodian, liquidator or similar official, or
approving the petition in any such proceedings, and such order,
judgment or decree remains unstayed and in effect for more than 30
days; or
(xi) any order, judgment or decree is entered in any
proceedings against the Company decreeing the dissolution of the
Company and such order, judgment or decree remains unstayed and in
effect for more than 60 days; or
(xii) any order, judgment or decree is entered in any
proceedings against the Company or any Restricted Subsidiary decreeing
a split-up of the Company or such Restricted Subsidiary which requires
the divestiture of assets representing a substantial part, or the
divestiture of the stock of a Subsidiary whose assets represent a
substantial part, of the consolidated assets of the Company and its
Subsidiaries (determined in accordance with generally accepted
accounting principles) or which requires the divestiture of assets, or
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stock of a Subsidiary, which shall have contributed a substantial part
of the consolidated net income of the Company and its Subsidiaries
(determined in accordance with generally accepted accounting
principles) for any of the three fiscal years then most recently ended,
and such order, judgment or decree remains unstayed and in effect for
more than 60 days; or
(xiii) one or more final judgments in an aggregate amount in
excess of $2,000,000 is rendered against the Company or any Restricted
Subsidiary and, within 45 days after entry thereof, any such judgment
is not discharged or execution thereof stayed pending appeal, or within
45 days after the expiration of any such stay, such judgment is not
discharged; or
(xiv) the Company or any ERISA Affiliate, in its capacity as
an employer under a Multiemployer Plan, makes a complete or partial
withdrawal from such Multiemployer Plan resulting in the incurrence by
such withdrawing employer of a withdrawal liability in an amount
exceeding $500,000; or
(xv) the Series I Guaranty shall cease to be in full force
and effect for any reason whatsoever with respect to any Guarantor
(other than in connection with the release of a Guarantor from the
Series I Guaranty as contemplated by paragraph 6B(10)(c), including,
without limitation, a determination by any Governmental Authority or
court that such agreement is invalid, void or unenforceable or any of
the Restricted Subsidiaries party to the Series I Guaranty shall
contest or deny in writing the validity or enforceability of any of its
respective obligations under the Series I Guaranty; or
(xvi) the Company shall fail to deliver to the Purchasers
the Intercreditor Amendment prior to June 30, 2001.
then (a) if such event is an Event of Default specified in clause (i) or (ii) of
this paragraph 7A, any holder of any Note may at its option during the
continuance of such Event of Default, by notice in writing to the Company,
declare all of the Notes held by such holder to be, and all of the Notes held by
such holder shall thereupon be and become, immediately due and payable at par
together with interest accrued thereon, without presentment, demand, protest or
notice of any kind, all of which are hereby waived by the Company, (b) if such
event is an Event of Default specified in clause (viii), (ix) or (x) of this
paragraph 7A with respect to the Company, all of the Notes at the time
outstanding shall automatically become immediately due and payable together with
interest accrued thereon and together with the Yield-Maintenance Amount, if any,
with respect to each Note, without presentment, demand, protest or notice of any
kind, all of which are hereby waived by the Company, and (c) with respect to any
event constituting an Event of Default, the Required Holder(s) of the Notes of
any Series may at its or their option during the continuance of such Event of
Default, by notice in writing to the Company, declare all of the Notes of such
Series to be, and all of the Notes of such Series shall thereupon be and become,
immediately due and payable together with interest accrued thereon and together
with the Yield-Maintenance Amount, if any, with respect to each Note of such
Series, without presentment, demand, protest or notice of any kind, all of which
are hereby waived by the Company.
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7B. RESCISSION OF ACCELERATION. At any time after any or all of
the Notes of any Series shall have been declared immediately due and payable
pursuant to paragraph 7A, the Required Holder(s) of the Notes of such Series
may, by notice in writing to the Company, rescind and annul such declaration and
its consequences if (i) the Company shall have paid all overdue interest on the
Notes of such Series, the principal of and Yield-Maintenance Amount, if any,
payable with respect to any Notes of such Series which have become due otherwise
than by reason of such declaration, and interest on such overdue interest and
overdue principal and Yield-Maintenance Amount at the rate specified in the
Notes of such Series, (ii) the Company shall not have paid any amounts which
have become due solely by reason of such declaration, (iii) all Events of
Default and Defaults, other than non-payment of amounts which have become due
solely by reason of such declaration, shall have been cured or waived pursuant
to paragraph 11C, and (iv) no judgment or decree shall have been entered for the
payment of any amounts due pursuant to the Notes of such Series or this
Agreement. No such rescission or annulment shall extend to or affect any
subsequent Event of Default or Default or impair any right arising therefrom.
7C. NOTICE OF ACCELERATION OR RESCISSION. Whenever any Note
shall be declared immediately due and payable pursuant to paragraph 7A or any
such declaration shall be rescinded and annulled pursuant to paragraph 7B, the
Company shall forthwith give written notice thereof to the holder of each Note
of each Series at the time outstanding.
7D. OTHER REMEDIES. If any Event of Default or Default shall
occur and be continuing, the holder of any Note may proceed to protect and
enforce its rights under this Agreement and such Note by exercising such
remedies as are available to such holder in respect thereof under applicable
law, either by suit in equity or by action at law, or both, whether for specific
performance of any covenant or other agreement contained in this Agreement or in
aid of the exercise of any power granted in this Agreement. No remedy conferred
in this Agreement upon the holder of any Note is intended to be exclusive of any
other remedy, and each and every such remedy shall be cumulative and shall be in
addition to every other remedy conferred herein or now or hereafter existing at
law or in equity or by statute or otherwise.
8. REPRESENTATIONS, COVENANTS AND WARRANTIES. The Company
represents, covenants and warrants as follows (all references to "Subsidiary"
and "Subsidiaries" in this paragraph 8 shall be deemed omitted if the Company
has no Subsidiaries at the time the representations herein are made or
repeated):
8A. ORGANIZATION; SUBSIDIARY PREFERRED STOCK. The Company is a
corporation duly organized and existing in good standing under the laws of the
State of Delaware, each Subsidiary is duly organized and existing in good
standing under the laws of the jurisdiction in which it is incorporated, and the
Company has and each Subsidiary has the corporate power to own its respective
property and to carry on its respective business as now being conducted. No
Subsidiary has outstanding any shares of stock of a class which has priority
over any other class as to dividends or in liquidation. Schedule 8A 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
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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, and identifying each such Subsidiary as a Restricted
Subsidiary or an Unrestricted Subsidiary. All of the outstanding shares of
capital stock or similar equity interests of each Restricted Subsidiary shown in
Schedule 8A as being owned by the Company and its Subsidiaries have been validly
issued, are fully paid and non-assessable and are owned by the Company or
another Restricted Subsidiary free and clear of any Lien (except as otherwise
disclosed in Schedule 8A).
8B. FINANCIAL STATEMENTS. The Company has furnished each
Purchaser of any Note with the following financial statements, identified by a
principal financial officer of the Company: (i) a consolidated balance sheet of
the Company and its Subsidiaries as at December 31 in each of the three fiscal
years of the Company most recently completed prior to the date as of which this
representation is made or repeated to such Purchaser (other than fiscal years
completed within 90 days prior to such date for which audited financial
statements have not been released) and consolidated statements of income and
cash flows and a consolidated statement of shareholders' equity of the Company
and its Subsidiaries for each such year, all reported on by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and
(ii) consolidated balance sheet of the Company and its Subsidiaries as at the
end of the quarterly period (if any) most recently completed prior to such date
and after the end of such fiscal year (other than quarterly periods completed
within 60 days prior to such date for which financial statements have not been
released) and the comparable quarterly period in the preceding fiscal year and
consolidated statements of income and cash flows and a consolidated statement of
shareholders' equity for the periods from the beginning of the fiscal years in
which such quarterly periods are included to the end of such quarterly periods,
prepared by the Company. Such financial statements (including any related
schedules and/or notes) are true and correct in all material respects (subject,
as to interim statements, to changes resulting from audits and year-end
adjustments), have been prepared in accordance with generally accepted
accounting principles consistently followed throughout the periods involved and
show all liabilities, direct and contingent, of the Company and its Subsidiaries
required to be shown in accordance with such principles. The balance sheets
fairly present the condition of the Company and its Subsidiaries as at the dates
thereof, and the statements of income, stockholders' equity and cash flows
fairly present the results of the operations of the Company and its Subsidiaries
and their cash flows for the periods indicated. There has been no material
adverse change in the business, property or assets, condition (financial or
otherwise), operations or prospects of the Company and its Subsidiaries taken as
a whole since the end of the most recent fiscal year for which such audited
financial statements have been furnished.
8C. ACTIONS PENDING. There is no action, suit, investigation or
proceeding pending or, to the knowledge of the Company, threatened against the
Company or any of its Subsidiaries, or any properties or rights of the Company
or any of its Subsidiaries, by or before any court, arbitrator or administrative
or governmental body which could be reasonably expected to result in any
material adverse change in the business, property or assets, condition
(financial or otherwise) or operations of the Company and its Subsidiaries taken
as a whole.
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8D. OUTSTANDING DEBT. Neither the Company nor any of its
Restricted Subsidiaries has outstanding any Debt except as permitted by
paragraph 6B(2). There exists no default under the provisions of any instrument
evidencing such Debt or of any agreement relating thereto.
8E. TITLE TO PROPERTIES. The Company has and each of its
Restricted Subsidiaries has good and indefeasible title to its respective real
properties (other than properties which it leases) and good title to all of its
other respective properties and assets, including the properties and assets
reflected in the most recent audited balance sheet referred to in paragraph 8B
(other than properties and assets disposed of in the ordinary course of
business), subject to no Lien of any kind except Liens permitted by paragraph
6B(1). All leases necessary in any material respect for the conduct of the
respective businesses of the Company and its Subsidiaries are valid and
subsisting and are in full force and effect.
8F. TAXES. The Company has and each of its Subsidiaries has
filed all federal, state and other income tax returns which, to the best
knowledge of the officers of the Company and its Subsidiaries, are required to
be filed, and each has paid all taxes as shown on such returns and on all
assessments received by it to the extent that such taxes have become due, except
such taxes as are being contested in good faith by appropriate proceedings for
which adequate reserves have been established in accordance with generally
accepted accounting principles.
8G. CONFLICTING AGREEMENTS AND OTHER MATTERS. Neither the
Company nor any of its Subsidiaries is a party to any contract or agreement or
subject to any charter or other corporate restriction which materially and
adversely affects its business, property or assets, condition (financial or
otherwise) or operations. Neither the execution nor delivery of this Agreement
or the Notes, nor the offering, issuance and sale of the Notes, nor fulfillment
of nor compliance with the terms and provisions hereof and of the Notes will
conflict with, or result in a breach of the terms, conditions or provisions of,
or constitute a default under, or result in any violation of, or result in the
creation of any Lien upon any of the properties or assets of the Company or any
of its Subsidiaries pursuant to, the charter or by-laws of the Company or any of
its Subsidiaries, any award of any arbitrator or any agreement (including any
agreement with stockholders), instrument, order, judgment, decree, statute, law,
rule or regulation to which the Company or any of its Subsidiaries is subject.
Neither the Company nor any of its Subsidiaries is a party to, or otherwise
subject to any provision contained in, any instrument evidencing Indebtedness of
the Company or such Subsidiary, any agreement relating thereto or any other
contract or agreement (including its charter) which limits the amount of, or
otherwise imposes restrictions on the incurring of, Debt of the Company of the
type to be evidenced by the Notes except as set forth in the agreements listed
in Schedule 8G attached hereto (as such Schedule 8G may have been modified from
time to time by written supplements thereto delivered by the Company and
accepted in writing by Prudential).
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8H. OFFERING OF NOTES. Neither the Company nor any agent acting
on its behalf has, directly or indirectly, offered the Notes or any similar
security of the Company for sale to, or solicited any offers to buy the Notes or
any similar security of the Company from, or otherwise approached or negotiated
with respect thereto with, any Person other than institutional investors, and
neither the Company nor any agent acting on its behalf has taken or will take
any action which would subject the issuance or sale of the Notes to the
provisions of Section 5 of the Securities Act or to the provisions of any
securities or Blue Sky law of any applicable jurisdiction.
8I. USE OF PROCEEDS. The proceeds of the Series I Notes will be
used to retire existing indebtedness. The Company is not engaged principally, or
as one of its important activities, in the business of extending credit for the
purpose of purchasing or carrying "margin stock" (within the meaning of
Regulation U of the Board of Governors of the Federal Reserve System), and the
aggregate market value of all "margin stock" owned by the Company and its
Restricted Subsidiaries does not exceed 25% of the aggregate value of the assets
thereof, as determined by any reasonable method. Neither the Company nor any
agent acting on its behalf has taken or will take any action which might cause
this Agreement or the Notes to violate Regulation U, Regulation T or any other
regulation of the Board of Governors of the Federal Reserve System or to violate
the Exchange Act, in each case as in effect now or as the same may hereafter be
in effect.
8J. ERISA. No accumulated funding deficiency (as defined in
section 302 of ERISA and section 412 of the Code), whether or not waived, exists
with respect to any Plan (other than a Multiemployer Plan). No liability to the
PBGC has been or is expected by the Company or any ERISA Affiliate to be
incurred with respect to any Plan (other than a Multiemployer Plan) by the
Company, any Subsidiary or any ERISA Affiliate which is or would be materially
adverse to the business, property or assets, condition (financial or otherwise)
or operations of the Company and its Subsidiaries taken as a whole. Neither the
Company, any Subsidiary nor any ERISA Affiliate has incurred or presently
expects to incur any withdrawal liability under Title IV of ERISA with respect
to any Multiemployer Plan which is or would be materially adverse to the
business, property or assets, condition (financial or otherwise) or operations
of the Company and its Subsidiaries taken as a whole. The execution and delivery
of this Agreement and the issuance and sale of the Notes will be exempt from or
will not involve any transaction which is subject to the prohibitions of section
406 of ERISA and will not involve any transaction in connection with which a
penalty could be imposed under section 502(i) of ERISA or a tax could be imposed
pursuant to section 4975 of the Code. The representation by the Company in the
next preceding sentence is made in reliance upon and subject to the accuracy of
the representation of each Purchaser in paragraph 9B as to the source of funds
to be used by it to purchase any Notes.
8K. GOVERNMENTAL CONSENT. Neither the nature of the Company or
of any Subsidiary, nor any of their respective businesses or properties, nor any
relationship between the Company or any Subsidiary and any other Person, nor any
circumstance in connection with the offering, issuance, sale or delivery of the
Notes is such as to require any authorization, consent, approval, exemption or
any action by or notice to or filing with any court or administrative or
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governmental body (other than routine filings after the Closing Day for any
Notes with the Securities and Exchange Commission and/or state Blue Sky
authorities) in connection with the execution and delivery of this Agreement,
the offering, issuance, sale or delivery of the Notes or fulfillment of or
compliance with the terms and provisions hereof or of the Notes.
8L. ENVIRONMENTAL COMPLIANCE. The Company and its Subsidiaries
and all of their respective properties and facilities have complied at all times
and in all respects with all foreign, federal, state, local and regional
statutes, laws, ordinances and judicial or administrative orders, judgments,
rulings and regulations relating to protection of the environment except, in any
such case, where failure to comply would not result in a material adverse effect
on the business, condition (financial or otherwise) or operations of the Company
and its Subsidiaries taken as a whole.
8M. REGULATORY STATUS. Neither the Company nor any Subsidiary is
(i) an "investment company" or a company "controlled" by an "investment company"
within the meaning of the Investment Company Act of 1940, as amended, (ii) a
"holding company" or a "subsidiary company" or an "affiliate" of a "holding
company" or a "subsidiary company" of a "holding company", within the meaning of
the Public Utility Act of 1935, as amended, or (iii) a "public utility" within
the meaning of the Federal Power Act, as amended.
8N. SECTION 144A. The Notes are not of the same class as
securities, if any, of the Company listed on a national securities exchange
registered under Section 6 of the Exchange Act or quoted in a U.S. automated
inter-dealer quotation system.
8O. ABSENCE OF FINANCING STATEMENTS, ETC. Except with respect to
Liens permitted by paragraph 6B(1) hereof, there is no financing statement,
security agreement, chattel mortgage, real estate mortgage or other document
filed or recorded with any filing records, registry or other public office, that
purports to cover, affect or give notice of any present or possible future Lien
on, or security interest in, any assets or property of the Company or any of its
Subsidiaries or any rights relating thereto.
8P. DISCLOSURE. Neither this Agreement nor any other document,
certificate or statement furnished to any Purchaser by or on behalf of the
Company in connection herewith contains any untrue statement of a material fact
or omits to state a material fact necessary in order to make the statements
contained herein and therein not misleading. There is no fact peculiar to the
Company or any of its Subsidiaries which materially adversely affects or in the
future may (so far as the Company can now foresee) materially adversely affect
the business, property or assets, condition (financial or otherwise) or
operations of the Company or any of its Subsidiaries and which has not been set
forth in this Agreement.
8Q. HOSTILE TENDER OFFERS. None of the proceeds of the sale of
any Notes will be used to finance a Hostile Tender Offer.
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9. REPRESENTATIONS OF THE PURCHASERS.
Each Purchaser represents as follows:
9A. NATURE OF PURCHASE. Such Purchaser is not acquiring the
Notes purchased by it hereunder with a view to or for sale in connection with
any distribution thereof within the meaning of the Securities Act, provided that
the disposition of such Purchaser's property shall at all times be and remain
within its control.
9B. SOURCE OF FUNDS. The source of the funds being used by such
Purchaser to pay the purchase price of the Notes being purchased by such
Purchaser hereunder constitutes assets allocated to: (i) the "insurance company
general account" of such Purchaser (as such term is defined under Section V of
the United States Department of Labor's Prohibited Transaction Class Exemption
("PTCE") 95-60), and as of the date of the purchase of the Notes such Purchaser
satisfies all of the applicable requirements for relief under Sections I and IV
of PTCE 95-60, (ii) a separate account maintained by such Purchaser in which no
employee benefit plan, other than employee benefit plans identified on a list
which has been furnished by such Purchaser to the Company, participates to the
extent of 10% or more or (iii) an investment fund, the assets of which do not
include any assets of any employee benefit plan. For the purpose of this
paragraph 9B, the terms "SEPARATE ACCOUNT" and "EMPLOYEE BENEFIT PLAN" shall
have the respective meanings specified in section 3 of ERISA.
10. DEFINITIONS; ACCOUNTING MATTERS. For the purpose of this
Agreement, the terms defined in paragraphs 10A and 10B (or within the text of
any other paragraph) shall have the respective meanings specified therein and
all accounting matters shall be subject to determination as provided in
paragraph 10C.
10A. YIELD-MAINTENANCE TERMS.
"CALLED PRINCIPAL" shall mean, with respect to any Note, the
principal of such Note that is to be prepaid pursuant to paragraph 4C or 4F or
is declared to be immediately due and payable pursuant to paragraph 7A, as the
context requires.
"DISCOUNTED VALUE" shall mean, with respect to the Called
Principal of any Note, the amount obtained by discounting all Remaining
Scheduled Payments with respect to such Called Principal from their respective
scheduled due dates to the Settlement Date with respect to such Called
Principal, in accordance with accepted financial practice and at a discount
factor (as converted to reflect the periodic basis on which interest on such
Note is payable, if payable other than on a semi-annual basis) equal to the
Reinvestment Yield with respect to such Called Principal.
"REINVESTMENT YIELD" shall mean, with respect to the Called
Principal of any Note, the yield to maturity implied by (i) 0.50% over the
yields reported, as of 10:00 A.M. (New York City local time) on the Business Day
next preceding the Settlement Date with respect to
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such Called Principal, on the display designated as "Page 678" on the Telerate
Service (or such other display as may replace page 678 on the Telerate Service)
for actively traded U.S. Treasury securities having a maturity equal to the
Remaining Average Life of such Called Principal as of such Settlement Date, or
if such yields shall not be reported as of such time or the yields reported as
of such time shall not be ascertainable, (ii) the Treasury Constant Maturity
Series yields reported, for the latest day for which such yields shall have been
so reported as of the Business Day next 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
shall be determined, if necessary, by (a) converting U.S. Treasury ▇▇▇▇
quotations to bond-equivalent yields in accordance with accepted financial
practice and (b) interpolating linearly between yields reported for various
maturities.
"REMAINING AVERAGE LIFE" shall mean, with respect to the
Called Principal of any Note, the number of years (calculated to the nearest
one-twelfth year) obtained by dividing (i) such Called Principal into (ii) the
sum of the products obtained by multiplying (a) each Remaining Scheduled Payment
of such Called Principal (but not of interest thereon) by (b) the number of
years (calculated to the nearest one-twelfth year) which will elapse between the
Settlement Date with respect to such Called Principal and the scheduled due date
of such Remaining Scheduled Payment.
"REMAINING SCHEDULED PAYMENTS" shall mean, with respect to
the Called Principal of any Note, all payments of such Called Principal and
interest thereon that would be due on or 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.
"SETTLEMENT DATE" shall mean, with respect to the Called
Principal of any Note, the date on which such Called Principal is to be prepaid
pursuant to paragraph 4C or 4F or is declared to be immediately due and payable
pursuant to paragraph 7A, as the context requires.
"YIELD-MAINTENANCE AMOUNT" shall mean, with respect to any
Note, an amount equal to the excess, if any, of the Discounted Value of the
Called Principal of such Note over the sum of (i) such Called Principal plus
(ii) interest accrued thereon as of (including interest due on) the Settlement
Date with respect to such Called Principal. The Yield-Maintenance Amount shall
in no event be less than zero.
10B. OTHER TERMS.
"ACCEPTANCE" shall have the meaning specified in paragraph
2B(5).
"ACCEPTANCE DAY" shall have the meaning specified in
paragraph 2B(5).
"ACCEPTANCE NOTICE DATE" shall have the meaning specified in
paragraph 4F(iii).
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"ACCEPTANCE WINDOW" shall mean, with respect to any interest
rate quote made by Prudential pursuant to paragraph 2B(4), the time period
designated by Prudential during which the Company may elect to accept such
interest rate quote as to not less than $5,000,000 in aggregate principal amount
of Shelf Notes specified in the related Request for Purchase.
"ACCEPTED NOTE" shall have the meaning specified in
paragraph 2B(5).
"AFFILIATE" shall mean (i) any Person directly or indirectly
controlling, controlled by, or under direct or indirect common control with such
Person (except, with respect to the Company, a Subsidiary) and (ii) with respect
to Prudential, any investment fund or vehicle for which Prudential or any
Prudential Affiliate acts as investment advisor or portfolio manager. A Person
shall be deemed to control a corporation if such Person possesses, directly or
indirectly, the power to direct or cause the direction of the management and
policies of such corporation, whether through the ownership of voting
securities, by contract or otherwise.
"ASSET DISPOSITION PREPAYMENT DATE" shall have the meaning
provided in paragraph 6B(6).
"ASSET DISPOSITION PREPAYMENT NOTICE" shall have the meaning
provided in paragraph 6B(6).
"AUTHORIZED OFFICER" shall mean (i) in the case of the
Company, a Senior Financial Officer or any officer of the Company designated as
an "Authorized Officer" of the Company for the purpose of this Agreement in an
Officer's Certificate executed by the Company's chief executive officer or chief
financial officer and delivered to Prudential, and (ii) in the case of
Prudential, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
and any vice president of Prudential designated as its "Authorized Officer" for
the purpose of this Agreement in a certificate executed by one of its Authorized
Officers. Any action taken under this Agreement on behalf of the Company by any
individual who on or after the date of this Agreement shall have been an
Authorized Officer of the Company and whom Prudential in good faith believes to
be an Authorized Officer of the Company at the time of such action shall be
binding on the Company even though such individual shall have ceased to be an
Authorized Officer of the Company, and any action taken under this Agreement on
behalf of Prudential by any individual who on or after the date of this
Agreement shall have been an Authorized Officer of Prudential and whom the
Company in good faith believes to be an Authorized Officer of Prudential at the
time of such action shall be binding on Prudential even though such individual
shall have ceased to be an Authorized Officer of Prudential.
"AVAILABLE ASSETS" means, with respect to the Company or any
of its Restricted Subsidiaries, as of the date of any determination thereof, the
book value of the assets (other than the capital stock of, or other ownership
interests in, Subsidiaries) of such Person minus the sum of (i) the aggregate
amount of any intercompany receivables owing to such Person from the Company or
any of its Restricted Subsidiaries, (ii) the aggregate amount of any
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intercompany payables owing by such Person to any Restricted Subsidiary of the
Company that is not a Guarantor and (iii) the aggregate book value of assets of
such Person that are subject to any Lien securing Debt of the Company or any of
its Restricted Subsidiaries other than the Notes.
"AVAILABLE FACILITY AMOUNT" shall have the meaning specified
in paragraph 2B(1).
"BANKRUPTCY LAW" shall have the meaning specified in clause
(viii) of paragraph 7A.
"BUSINESS DAY" shall mean any day other than (i) a Saturday
or a Sunday, (ii) a day on which commercial banks in New York City, Indiana or
Illinois are required or authorized to be closed and (iii) for purposes of
paragraph 2B(3) hereof only, a day on which Prudential is not open for business.
"CANCELLATION DATE" shall have the meaning specified in
paragraph 2B(8)(iv).
"CANCELLATION FEE" shall have the meaning specified in
paragraph 2B(8)(iv).
"CAPITALIZED LEASE OBLIGATION" shall mean any rental
obligation which, under generally accepted accounting principles, is or will be
required to be capitalized on the books of the Company or any Subsidiary, taken
at the amount thereof accounted for as indebtedness (net of interest expenses)
in accordance with such principles.
"CHANGE IN CONTROL" shall mean if any person (as such term
is used in section 13(d) and section 14(d)(2) of the Exchange Act as in effect
on the Series I Closing Day), other than a person who is a Company Officer, or
persons constituting a group (as such term is used in Rule 13d-5 under the
Exchange Act), other than a group consisting of Company Officers, become the
"beneficial owners" (as such term is used in Rule 13d-3 under the Exchange Act
as in effect on the Series I Closing Day), directly or indirectly, of more than
50% of the total voting power of all classes then outstanding of the Company's
Voting Stock.
"CLOSING DAY" shall mean, with respect to the Series I
Notes, the Series I Closing Day and, with respect to any Accepted Note, the
Business Day specified for the closing of the purchase and sale of such Accepted
Note in the Request for Purchase of such Accepted Note, provided that (i) if the
Company and the Purchaser which is obligated to purchase such Accepted Note
agree on an earlier Business Day for such closing, the "CLOSING DAY" for such
Accepted Note shall be such earlier Business Day, and (ii) if the closing of the
purchase and sale of such Accepted Note is rescheduled pursuant to paragraph
2B(7), the Closing Day for such Accepted Note, for all purposes of this
Agreement except references to "original Closing Day" in paragraph 2B(8)(iii),
shall mean the Rescheduled Closing Day with respect to such Accepted Note.
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"CODE" shall mean the Internal Revenue Code of 1986, as
amended and the rules and regulations promulgated thereunder from time to time.
"COMPANY" shall have the meaning specified in the
introductory paragraph.
"COMPANY OFFICER" shall mean any individual elected as an
officer of the Company by its Board of Directors and holding that office as of
the Series I Closing Day.
"CONFIDENTIAL INFORMATION" shall mean any written
information delivered or made available by or on behalf of the Company or any
Subsidiary to a Purchaser or a Transferee (as the case may be) in connection
with or pursuant to this Agreement which is proprietary in nature and clearly
marked or labeled as being confidential information, but in no event shall
include information (i) which was publicly known or otherwise known to such
Purchaser or Transferee (as the case may be) at the time of disclosure (except
pursuant to disclosure in connection with this Agreement), (ii) which
subsequently becomes publicly known through no act or omission by such Purchaser
or Transferee (as the case may be), or (iii) which otherwise becomes known to
such Purchaser or Transferee, other than through disclosure by the Company or
any Subsidiary or any Person who was not under an obligation of confidentiality
(known or advised to such Purchaser).
"CONFIRMATION OF ACCEPTANCE" shall have the meaning
specified in paragraph 2B(5).
"CONSOLIDATED ADJUSTED NET WORTH" shall mean, as of any time
of determination thereof, (a) the sum of stockholders' equity, preferred stock,
minority interest and deferred income taxes as of such date, less (b) the
excess, if any, of (i) the amount of goodwill as of such date recorded after the
Series I Closing Day over (ii) 10% of Consolidated Total Assets as of such date;
all determined in accordance with generally accepted accounting principles on a
consolidated basis for the Company and its Restricted Subsidiaries.
"CONSOLIDATED NET EARNINGS" shall mean, for any period, the
net earnings of the Company and its Restricted Subsidiaries for such period
excluding: (i) extraordinary gains and losses, and (ii) any equity interest of
the Company in the unremitted earnings to a corporation not a Subsidiary, all
determined in accordance with generally accepted accounting principles on a
consolidated basis for the Company and its Restricted Subsidiaries.
"CONSOLIDATED NET INCOME" shall mean with reference to any
period, the net income (or loss) of the Company and its Restricted Subsidiaries
for such period (taken as a cumulative whole), as determined in accordance with
generally accepted accounting principles, after 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 generally accepted accounting principles.
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"CONSOLIDATED TANGIBLE NET WORTH" shall mean as of the date
of any determination thereof, the arithmetic sum of:
(a) the amount of the capital stock accounts (net of
treasury stock, at cost) plus (or minus in the case of deficit) the
surplus and retained earnings of the Company and its Restricted
Subsidiaries,
PLUS
(b) minority interests and deferred taxes of the Company and
its Restricted Subsidiaries,
MINUS
(c) the net book value, after deducting any reserves
applicable thereto, of all items of the following character which are
included in the assets of the Company and its Restricted Subsidiaries,
to wit:
(i) the incremental increase in an asset resulting
from any reappraisal, revaluation or write-up of assets
(other than any revaluation or write-up of assets in
accordance with generally accepted accounting principles);
and
(ii) goodwill, patents, patent applications,
permits, trademarks, trade names, copyrights, licenses,
franchises, experimental expense, organizational expense,
unamortized debt discount and expense, the excess of cost of
shares acquired over book value of related assets and such
other assets as are properly classified as "intangible
assets" acquired by the Company or any Restricted Subsidiary
after the Series I Closing Day to the extent and in the
amount by which the fair market value thereof is in excess of
10% of Consolidated Total Assets as of any date of
determination of Consolidated Total Assets;
all determined in accordance with generally accepted accounting principles.
"CONSOLIDATED TOTAL ASSETS" shall mean, as of any date, the
total assets of the Company and its Restricted Subsidiaries as of such date
determined on a consolidated basis in accordance with generally accepted
accounting principles.
"CONSOLIDATED TOTAL CAPITALIZATION" shall mean, as of any
time of determination thereof, the sum of Consolidated Adjusted Net Worth and
the amount of Funded Debt of the Company and its Restricted Subsidiaries
determined on a consolidated basis in accordance with generally accepted
accounting principles.
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"CONTROL EVENT" shall mean (i) the execution by the Company
or any of its Subsidiaries or Affiliates of any agreement or letter of intent
with respect to any proposed transaction or event or series of transactions or
events which, individually or in the aggregate, may reasonably be expected to
result in a Change in Control, (ii) the execution of any written agreement
which, when fully performed by the parties thereto, would result in a Change in
Control, or (iii) the making of any written offer by any person (as such term is
used in section 13(d) and section 14(d)(2) of the Exchange Act as in effect on
the Series I Closing Day) or related persons constituting a group (as such term
is used in Rule 13d-5 under the Exchange Act as in effect on the Series I
Closing Day) to the holders of the common stock of the Company, which offer, if
accepted by the requisite number of such holders, would result in a Change in
Control.
"CREDIT AGREEMENT" means that certain Credit Agreement,
dated as of September 30, 1997, among the Company, as borrower, the lenders
party thereto and Bank One, Indiana, N.A. (as successor to NBD Bank, N.A.), as
administrative agent, as amended by Amendment No. 2 to Credit Agreement, dated
as of September 30, 1999, as from time to time further supplemented, amended,
extended, restated or otherwise modified and including any successor or
replacement senior credit facility.
"DEBT" shall mean all obligations of the Company or any
Restricted Subsidiary for borrowed money, all Capitalized Lease Obligations of
the Company or any Restricted Subsidiary and, without duplication, all
Guarantees of the Company or any Restricted Subsidiaries, but shall exclude any
unfunded obligations which may exist now and in the future with respect to any
of the Plans.
"DELAYED DELIVERY FEE" shall have the meaning specified in
paragraph 2B(8)(iii).
"ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as amended and the rules and regulations promulgated thereunder
from time to time in effect.
"ERISA AFFILIATE" shall mean any corporation which is a
member of the same controlled group of corporations as the Company within the
meaning of section 414(b) of the Code, or any trade or business which is under
common control with the Company within the meaning of section 414(c) of the
Code.
"EVENT OF DEFAULT" shall mean any of the events specified in
paragraph 7A, provided that there has been satisfied any requirement in
connection with such event for the giving of notice, or the lapse of time, or
the happening of any further condition, event or act, and "DEFAULT" shall mean
any of such events, whether or not any such requirement has been satisfied.
"EXCESS NET PROCEEDS" shall mean, with respect to any
Transfer of Property, the Net Proceeds from such Transfer to the extent
attributable to Property transferred in excess of the limitation imposed by the
provisions of the introductory paragraph of paragraph 6B(6).
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"EXCHANGE ACT" shall mean the Securities Exchange Act of
1934, as amended.
"FACILITY" shall have the meaning specified in paragraph
2B(1).
"FAS 125" shall mean Statement of Financial Accounting
Standards No. 125, Accounting for Transfers and Servicing of Financial Assets
and Extinguishments of Liabilities, as promulgated by the Financial Accounting
Standards Board, and any succeeding or supplementary statement, standard, ruling
or interpretation thereto or thereof.
"FUNDED DEBT" shall mean all Debt of the Company and its
Restricted Subsidiaries which would, in accordance with generally accepted
accounting principles, constitute long term debt, including, without limitation:
(a) any Debt with a maturity of more than one year
after the date of creation of such Debt,
(b) any Debt outstanding under a revolving credit
or similar agreement providing for borrowings (and renewals
and extensions thereof) which pursuant to its terms would
constitute long term debt in accordance with generally
accepted accounting principles,
(c) any Capitalized Lease Obligation, and
(d) any Guarantee with respect to Funded Debt of
another Person.
Notwithstanding anything to the contrary contained in this definition, Funded
Debt at any time shall (i) exclude Debt (whether short term or long term) under
a revolving credit or similar agreement under which there was no Debt
outstanding for a period of 30 consecutive days during the twelve month period
preceding the date of determination, (ii) include all Debt under a revolving
credit or similar agreement (whether short term or long term) with respect to
which there was not a period of 30 consecutive days during the twelve month
period preceding the date of determination during which no Debt was outstanding,
and (iii) exclude all Debt consisting of intercompany loans arising in
connection with a Qualifying Securitization Transaction.
"GOVERNMENTAL AUTHORITY" shall mean (a) the government of
(i) the United States of America or any State or other political subdivision
thereof; or (ii) any jurisdiction in which the Company or any Subsidiary
conducts all or any part of its business, or which asserts jurisdiction over any
properties of the Company or any Subsidiary, or (b) any entity exercising
executive, legislative, judicial, regulatory or administrative functions of, or
pertaining to, any such government.
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"GUARANTEE" shall mean, with respect to any Person, any
obligation (except the endorsement in the ordinary course of business of
negotiable instruments for deposit or collection) of such Person guaranteeing or
in effect guaranteeing any indebtedness, dividend or other obligation of any
other Person in any manner, whether directly or indirectly, including (without
limitation) obligations incurred through an agreement, contingent or otherwise,
by such Person:
(a) to purchase such indebtedness or obligation or
any property constituting security therefor;
(b) to advance or supply funds (i) for the
purchase or payment of such indebtedness or obligation, or
(ii) to maintain any working capital or other balance sheet
condition or any income statement condition of any other
Person or otherwise to advance or make available funds for
the purchase or payment of such indebtedness or obligation;
(c) to lease properties or to purchase properties
or services primarily for the purpose of assuring the owner
of such indebtedness or obligation of the ability of any
other Person to make payment of the indebtedness or
obligation; or
(d) otherwise to assure the owner of such
indebtedness or obligation against loss in respect thereof.
In any computation of the indebtedness or other liabilities of the obligor under
any Guarantee, the indebtedness or other obligations that are the subject of
such Guarantee shall be assumed to be direct obligations of such obligor.
"GUARANTOR" means each of Wabash National, L.P., a Delaware
limited partnership, Wabash National Finance Corporation, an Indiana corporation
and Fruehauf Trailer Services, Inc., a Delaware corporation (collectively, the
"INITIAL GUARANTORS") and each other Restricted Subsidiary that executes and
delivers a supplement to the Series I Guaranty pursuant to paragraph 6B(10)
hereof.
"HEDGE TREASURY NOTE(S)" shall mean, with respect to any
Accepted Note, the United States Treasury Note or Notes whose duration (as
determined by Prudential) most closely matches the duration of such Accepted
Note.
"HOSTILE TENDER OFFER" shall mean, with respect to the use
of proceeds of any Note, any offer to purchase, or any purchase of, shares of
capital stock of any corporation or equity interests in any other entity, or
securities convertible into or representing the beneficial ownership of, or
rights to acquire, any such shares or equity interests, if such shares, equity
interests, securities or rights are of a class which is publicly traded on any
securities exchange or in any over-the-counter market, other than purchases of
such shares, equity interests, securities or
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rights representing less than 5% of the equity interests or beneficial ownership
of such corporation or other entity for portfolio investment purposes, and such
offer or purchase has not been duly approved by the board of directors of such
corporation or the equivalent governing body of such other entity prior to the
date on which the Company makes the Request for Purchase of such Note.
"INCLUDING" shall mean, unless the context clearly requires
otherwise, "including without limitation".
"INITIAL GUARANTOR" has the meaning set forth in the
definition of "Guarantor".
"INTERCREDITOR AGREEMENT" means the Intercreditor Agreement,
dated as of September 30, 1999, among Bank One, Indiana, N.A. (as successor to
NBD Bank, N.A.), as agent for the lenders under the Credit Agreement, the
holders of the Notes and the holders of the Series B-H Notes.
"INTERCREDITOR AMENDMENT" shall have the meaning specified
in paragraph 3G.
"INVESTMENT" shall mean any loan or advance to, or purchase
or other acquisition of any stock, obligations or securities of or other
interest in, or the making of a capital contribution to, any Person.
"ISSUANCE FEE" shall have the meaning specified in paragraph
2B(8)(ii).
"ISSUANCE PERIOD" shall have the meaning specified in
paragraph 2B(2).
"LIEN" shall mean any mortgage, pledge, security interest,
encumbrance, lien (statutory or otherwise) or charge of any kind (including any
agreement to give any of the foregoing, any conditional sale or other title
retention agreement, any lease in the nature thereof, and the filing of or
agreement to give any financing statement under the Uniform Commercial Code of
any jurisdiction) or any other type of preferential arrangement for the purpose,
or having the effect, of protecting a creditor against loss or securing the
payment or performance of an obligation.
"MATERIAL" shall mean material in relation to the business,
operations, affairs, financial conditions, assets or properties of the Company
and its Restricted Subsidiaries taken as a whole.
"MULTIEMPLOYER PLAN" shall mean any Plan which is a
"multiemployer plan" (as such term is defined in section 4001(a)(3) of ERISA.
"NET PROCEEDS" shall mean, with respect to any Transfer of
any Property by any Person, an amount equal to the excess of (a) the aggregate
amount of all consideration (valued at fair market value of such consideration
at the time of consummation of such Transfer) received
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by such Person in respect of such Transfer over (b) the ordinary and reasonable
out-of-pocket costs and expenses actually incurred by such Person in connection
with such Transfer.
"NOTE GUARANTY" means the unconditional guaranty of payment
of the Series A Notes, dated as of September 30, 1999, executed by the
Guarantors, as the same may from time to time be amended, restated or otherwise
modified.
"NOTES" shall have the meaning specified in paragraph 1B.
"OFFICER'S CERTIFICATE" shall mean a certificate signed in
the name of the Company by an Authorized Officer of the Company.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
referred to and defined in ERISA or any successor thereto.
"PERMITTED INVESTMENTS" shall mean:
(a) investments in Property to be used in the
ordinary course of the Company's or any Restricted
Subsidiary's businesses;
(b) all investments (whether otherwise Permitted
Investments or constituting Restricted Payments) existing on
the Series I Closing Day, which investments are set forth on
Schedule 6B(8);
(c) investments in or advances to Restricted
Subsidiaries or corporate entities which simultaneously with
the making of such investment become Restricted Subsidiaries;
(d) investments in joint ventures or
unconsolidated Subsidiaries or Unrestricted Subsidiaries of
the Company which do not exceed $500,000 per annum;
(e) certificates of deposit with final maturities
of one year or less from the date of acquisition thereof
issued by United States commercial banks rated "A" or above
by either Standard & Poor's Corporation or ▇▇▇▇▇'▇ Investor
Services, Inc. and having combined capital, surplus and
undivided profits of at least $100,000,000;
(f) commercial paper maturing within 270 days from
the date of acquisition thereof and rated at ▇▇▇▇▇ "▇▇" by
Standard & Poor's Corporation or "P1" by ▇▇▇▇▇'▇ Investor
Services, Inc.;
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(g) direct obligations of the United States of
America or of agencies of the United States of America fully
guaranteed by the United States of America with final
maturities of one year or less from the date of acquisition
thereof;
(h) money market preferred stock raised "A" or
above by either Standard & Poor's Corporation or ▇▇▇▇▇'▇
Investor Services, Inc. with final maturities of less than
two years from the date of acquisition thereof;
(i) tax exempt floating rate tender option bonds,
backed by a letter of credit issued by a United States
commercial bank rated at least "AA" by Standard & Poor's
Corporation of "Aa" by ▇▇▇▇▇'▇ Investor Services;
(j) repurchase agreements with a commercial bank
described in clause (e) of this definition in respect of
investments described in clauses (e), (f), or (g) of this
definition if for terms less than one year;
(k) money market mutual funds whose investments
are solely in those investments of the type described in
clauses (e), (f), (g), (h), (i) and (j) of this definition;
(l) investments in or advances to a Special
Purpose Subsidiary and other intercompany loans and advances,
in each case, in connection with a Qualifying Securitization
Transaction; and
(m) investments in or advances by a Restricted
Subsidiary to the Company.
"PERSON" shall mean and include an individual, a
partnership, a joint venture, a corporation, a trust, an unincorporated
organization and a government or any department or agency thereof.
"PLAN" shall mean any employee pension benefit plan (as such
term is defined in section 3 of ERISA) which is or has been established or
maintained, or to which contributions are or have been made, by the Company or
any ERISA Affiliate.
"PRIORITY DEBT" shall mean (i) all Debt of the Company or
any Restricted Subsidiary secured by a Lien on any Property of the Company or
any Restricted Subsidiary, excluding Debt secured by Liens permitted by clauses
(a), (b), (c) (e), (f), (g) or (h) of paragraph 6B(1) but including Debt secured
by Liens permitted by clauses (d) and (i) of paragraph 6B(1), and (ii) all Debt
of Restricted Subsidiaries (excluding Debt secured by Liens permitted by clauses
(a), (b), (c), (e), (f), (g) or (h) of paragraph 6B(1) and Debt permitted by
subclauses (e) and (f) of paragraph 6B(2)).
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"PROPERTY" shall mean, unless otherwise specifically
limited, real or personal property of any kind, tangible or intangible, ▇▇▇▇▇▇
or inchoate.
"PROPOSED PREPAYMENT DATE" shall have the meaning specified
in paragraph 4F(ii).
"PRUCO" shall mean Pruco Life Insurance Company.
"PRUDENTIAL" shall mean The Prudential Insurance Company of
America.
"PRUDENTIAL AFFILIATE" shall mean any Affiliate of
Prudential.
"PURCHASERS" shall mean Prudential and Pruco with respect to
the Series I Notes and, with respect to any Accepted Notes, Prudential and/or
the Prudential Affiliate(s), which are purchasing such Accepted Notes.
"QUALIFYING RECEIVABLES" shall mean indebtedness and other
obligations owed to the Company or any Subsidiary, whether constituting
accounts, chattel paper, instruments or general intangibles, arising in
connection with the sale of semi-trailers and related parts and services by the
Company or such Subsidiary to commercial customers, including, without
limitation, the obligation to pay any finance charges with respect thereto.
"QUALIFYING SECURITIZATION TRANSACTION" shall mean the
Transfer or pledge (including the granting of a security interest) of Qualifying
Receivables by the Company or a Subsidiary, and any related pledges or grants of
security interests, in a transaction which (i) results in the Company or such
Subsidiary being permitted under FAS 125 (as in effect on the date of the
consummation of the transaction in question) to derecognize such Qualifying
Receivables in the preparation of the financial statements of the Company or
such Subsidiary, and (ii) is effected under such terms and conditions as are
customary in transactions of a similar nature.
"RELINQUISHING HOLDER" shall have the meaning specified in
paragraph 4F(v).
"REQUEST FOR PURCHASE" shall have the meaning specified in
paragraph 2B(3).
"REQUIRED HOLDER(S)" shall mean the holder or holders of at
least 51% of the aggregate principal amount of the Notes or of a Series of
Notes, as the context may require, from time to time outstanding.
"RESCHEDULED CLOSING DAY" shall have the meaning specified
in paragraph 2B(7).
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"RESPONSIBLE OFFICER" shall mean any Senior Financial
Officer or any other officer of the Company involved principally in its
financial administration or its controllership function.
"RESTRICTED PAYMENT AMOUNT" shall mean (a) for the first
fiscal quarter ending after the Series I Closing Day, $40,000,000, and (b) for
each subsequent fiscal quarter, the amount equal to the following: (i) the
Restricted Payment Amount for the immediately preceding fiscal quarter, (ii)
plus 75% (or minus 100% in the event of a deficit) of Consolidated Net Earnings
for the immediately preceding fiscal quarter, (iii) plus the net cash proceeds
received by the Company during the immediately preceding fiscal quarter from any
sale by the Company of any class of capital stock of the Company or from any
cash capital contribution to the Company, (iv) plus the net cash proceeds
received by the Company or any Restricted Subsidiary during the immediately
preceding fiscal quarter from the liquidation (whether at maturity, by sale or
otherwise) of any Investment not constituting a Permitted Investment, and (v)
minus the aggregate amount of all Restricted Payments made during the
immediately preceding fiscal quarter.
"RESTRICTED PAYMENTS" shall mean (a) any payment or
declaration of any dividend or any other distribution on account of any class of
stock (except dividends or stock splits payable solely in the common stock of
the Company), (b) redemptions, purchases or other acquisitions (direct or
indirect) of any capital stock; and (c) any Investments not constituting
Permitted Investments. As used in this definition, the term "capital stock"
shall include warrants, rights and options to purchase capital stock. Any
Restricted Payment made in Property other than cash shall, for the purposes of
determining the amount thereof for all purposes of this Agreement, be valued at
the greater of such Property's book value or fair market value at the time such
Restricted Payment is made.
"RESTRICTED SUBSIDIARY" shall mean any Subsidiary (a) so
designated by the Company in writing to the holders of the Notes as a Restricted
Subsidiary, and (b) of which more than 50% (by number of votes) of the Voting
Stock is owned by the Company and/or one or more Restricted Subsidiaries. All
Subsidiaries not designated as Unrestricted Subsidiaries shall be deemed to be
Restricted Subsidiaries.
"REVOLVER GUARANTY" means that certain Guaranty, dated as of
September 30, 1999, by the Initial Guarantors in favor of Bank One, Indiana,
N.A. (as successor to NBD Bank, N.A.), as administrative agent under the Credit
Agreement, as amended, restated or otherwise modified from time to time
(including, without limitation, to add additional Subsidiaries of the Company as
guarantors pursuant to the terms of the Credit Agreement).
"SECONDARY ASSET DISPOSITION PREPAYMENT NOTICE" shall have
the meaning provided in paragraph 6B(6).
"SECURITIES ACT" shall mean the Securities Act of 1933, as
amended.
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"SENIOR FINANCIAL OFFICER" shall mean the chief financial
officer, principal accounting officer, treasurer or comptroller of the Company.
"SENIOR FUNDED DEBT" shall mean, with respect to any Person,
Funded Debt of such Person which is not expressed to be subordinate or junior in
rank to any other Funded Debt of such Person.
"SERIES" shall have the meaning specified in paragraph 1B.
"SERIES A NOTE AGREEMENT" means the Note Purchase Agreement
dated as of January 31, 1996 between the Company and the purchasers listed
therein pursuant to which the Company issued the Series A Notes.
"SERIES A NOTES" shall mean the $50,000,000 6.41% Senior A
Notes issued by the Company on January 31, 1996.
"SERIES B-H NOTES" means, collectively, the Company's (a)
$8,000,000 aggregate principal amount 6.99% Senior Notes, Series B, due December
17, 2001, (b) $22,000,00 aggregate principal amount Designated Rate Senior
Notes, Series C, due March 13, 2002, (c) 49,000,000 aggregate principal amount
7.31% Senior Notes, Series D, due December 17, 2004, (d) $3,000,000 aggregate
principal amount Designated Rate Senior Notes, Series E, due March 13, 2005, (e)
$13,000,000 aggregate principal amount 7.47% Senior Notes, Series F, due
December 17, 2006, (f) $20,000,000 aggregate principal amount 7.53% Senior
Notes, Series G, due December 30, 2008, and (g) $25,000,000 aggregate principal
amount 7.55% Senior Notes, Series H, due December 17, 2008.
"SERIES I CLOSING DAY" shall have the meaning specified in
paragraph 2A.
"SERIES I GUARANTY" shall have the meaning specified in
paragraph 3F.
"SERIES I NOTE(S)" shall have the meaning specified in
paragraph 1A.
"SHELF NOTES" shall have the meaning specified in paragraph
1B.
"SIGNIFICANT HOLDER" shall mean (i) Prudential, so long as
Prudential or any Prudential Affiliate shall hold (or be committed under this
Agreement to purchase) any Note, and (ii) any other holder of at least 10% of
the aggregate principal amount of the Notes from time to time outstanding.
"SPECIAL PURPOSE SUBSIDIARY" means any Subsidiary created as
a special purpose entity in connection with a Qualifying Securitization
Transaction."
"STRUCTURING FEE" shall have the meaning specified in
paragraph 2B(8)(i).
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"SUBSIDIARY" shall mean any corporation of which at least
51% of the total combined voting power of all classes of Voting Stock of which
shall, at the time as of which any determination is being made, be owned by the
Company either directly or through Subsidiaries.
"TANGIBLE ASSETS" shall mean as of any determination
thereof, with respect to any Person, total assets of such Person in accordance
with generally accepted accounting principles, but excluding therefrom goodwill,
patents, patent applications, permits, trademarks, trade names, copyrights,
licenses, franchises, experimental expense, organizational expense, unamortized
debt discount and expense, the excess of cost of shares acquired over book value
of related assets and such other assets as are properly classified as
`intangible assets' in accordance with generally accepted accounting principles.
"TRANSFER" shall mean, with respect to any Property, the
sale, exchange, conveyance, lease, transfer or other disposition of such
Property.
"TRANSFEREE" shall mean any direct or indirect transferee of
all or any part of any Note purchased by any Purchaser under this Agreement.
"UNRESTRICTED SUBSIDIARY" shall mean (a) any Subsidiary so
designated by the Company in writing to the holders of the Notes as an
Unrestricted Subsidiary, (b) any Subsidiary not meeting the definition of a
Restricted Subsidiary, and (c) Wabash National Funding Corporation and its
successors and assigns. Notwithstanding the foregoing, (i) no designation of a
Subsidiary as a Restricted Subsidiary shall be made if, immediately after giving
effect to such designation on Default or an Event of Default would exist or the
Company would be unable to incur at least $1.00 of additional Funded Debt under
paragraph 6B(2), and (ii) no Subsidiary may have its designation as an
Unrestricted Subsidiary or a Restricted Subsidiary changed more than one time.
"VALUE" shall mean, with respect to any Property on any
date, the greater of the book value of such Property on such date or the fair
market value of such Property on such date.
"VOTING STOCK" shall mean, with respect to any corporation,
any shares of stock of such corporation whose holders are entitled under
ordinary circumstances to vote for the election of directors of such
corporation, or persons performing similar functions (irrespective of whether at
the time stock of any other class or classes shall have or might have voting
power by reason of the happening of any contingency).
"WABASH FINANCE" shall mean Wabash National Finance
Corporation, or any entity which is a legal successor thereto.
"WHOLLY-OWNED RESTRICTED SUBSIDIARY" shall mean any
Restricted Subsidiary all of the stock of every class of which is, at the time
as of which any determination is being made, owned by the Company either
directly or through a Wholly-Owned Restricted Subsidiary.
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10C. ACCOUNTING PRINCIPLES, TERMS AND DETERMINATIONS. All
references in this Agreement to "generally accepted accounting principles" shall
be deemed to refer to generally accepted accounting principles in effect in the
United States at the time of application thereof. Unless otherwise specified
herein, all accounting terms used herein shall be interpreted, all
determinations with respect to accounting matters hereunder shall be made, and
all unaudited financial statements and certificates and reports as to financial
matters required to be furnished hereunder shall be prepared, in accordance with
generally accepted accounting principles applied on a basis consistent with the
most recent audited financial statements delivered pursuant to clause (ii) of
paragraph 5A or, if no such statements have been so delivered, the most recent
audited financial statements referred to in clause (i) of paragraph 8B. Any
reference herein to any specific law, statute, rule or regulation shall refer to
such law, statute, rule or regulation as the same may be may be modified,
amended or replaced from time to time.
11. MISCELLANEOUS.
11A. NOTE PAYMENTS. The Company agrees that, so long as any
Purchaser shall hold any Note, it will make payments of principal of, interest
on, and any Yield-Maintenance Amount payable with respect to, such Note, which
comply with the terms of this Agreement, by wire transfer of immediately
available funds for credit (not later than 12:00 noon, New York City local time,
on the date due) to (i) the account or accounts of such Purchaser specified in
the Purchaser Schedule attached hereto in the case of any Series I Note, (ii)
the account or accounts of such Purchaser specified in the Confirmation of
Acceptance with respect to such Note in the case of any Shelf Note or (iii) such
other account or accounts in the United States as such Purchaser may from time
to time designate in writing, notwithstanding any contrary provision herein or
in any Note with respect to the place of payment. Each Purchaser agrees that,
before disposing of any Note, it will make a notation thereon (or on a schedule
attached thereto) of all principal payments previously made thereon and of the
date to which interest thereon has been paid. The Company agrees to afford the
benefits of this paragraph 11A to any Transferee which shall have made the same
agreement as the Purchasers have made in this paragraph 11A.
11B. EXPENSES. The Company agrees, whether or not the
transactions contemplated hereby shall be consummated, to pay, and save
Prudential, each Purchaser and any Transferee harmless against liability for the
payment of, all out-of-pocket expenses arising in connection with such
transactions, including (i) all document production and duplication charges and
the fees and expenses of any special counsel engaged by the Purchasers or any
Transferee in connection with this Agreement, the transactions contemplated
hereby and any subsequent proposed modification of, or proposed consent under,
this Agreement, whether or not such proposed modification shall be effected or
proposed consent granted, (ii) the costs and expenses, including attorneys'
fees, incurred by any Purchaser or any Transferee in enforcing (or determining
whether or how to enforce) 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 transactions contemplated
hereby or by reason of any Purchaser's or any Transferee's having acquired any
Note, including without limitation costs and expenses (including
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financial advisors' fees) incurred in any bankruptcy case or in connection with
any work-out or restructuring of the transactions contemplated hereby and by the
Notes. The obligations of the Company under this paragraph 11B shall survive the
transfer of any Note or portion thereof or interest therein by any Purchaser or
any Transferee, the payment of any Note, the enforcement, amendment or waiver of
any provision of this Agreement or the Notes, and the termination of this
Agreement.
11C. CONSENT TO AMENDMENTS. This Agreement may be amended, and
the Company may take any action herein prohibited, or omit to perform any act
herein required to be performed by it, if the Company shall obtain the written
consent to such amendment, action or omission to act, of the Required Holder(s)
of the Notes of each Series except that, (i) with the written consent of the
holders of all Notes of a particular Series, and if an Event of Default shall
have occurred and be continuing, of the holders of all Notes of all Series, at
the time outstanding (and such written consents), the Notes of such Series may
be amended or the provisions thereof waived to change the maturity thereof, to
change or affect the principal thereof, or to change or affect the rate or time
of payment of interest on or any Yield-Maintenance Amount payable with respect
to the Notes of such Series, (ii) without the written consent of the holder or
holders of all Notes at the time outstanding, no amendment to or waiver of the
provisions of this Agreement shall change or affect the provisions of paragraph
7A or this paragraph 11C insofar as such provisions relate to proportions of the
principal amount of the Notes of any Series, or the rights of any individual
holder of Notes, required with respect to any declaration of Notes to be due and
payable or with respect to any consent, amendment, waiver or declaration, (iii)
with the written consent of Prudential (and without the consent of any other
holder of the Notes) the provisions of paragraph 2B may be amended or waived
(except insofar as any such amendment or waiver would affect any rights or
obligations with respect to the purchase and sale of Notes which shall have
become Accepted Notes prior to such amendment or waiver), and (iv) with the
written consent of all of the Purchasers which shall have become obligated to
purchase Accepted Notes of any Series (and not without the written consent of
all such Purchasers), any of the provisions of paragraphs 2B and 3 may be
amended or waived insofar as such amendment or waiver would affect only rights
or obligations with respect to the purchase and sale of the Accepted Notes of
such Series or the terms and provisions of such Accepted Notes. Each holder of
any Note at the time or thereafter outstanding shall be bound by any consent
authorized by this paragraph 11C, whether or not such Note shall have been
marked to indicate such consent, but any Notes issued thereafter may bear a
notation referring to any such consent. 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 and in the Notes, the term "THIS AGREEMENT" and references
thereto shall mean this Agreement as it may from time to time be amended or
supplemented.
11D. FORM, REGISTRATION, TRANSFER AND EXCHANGE OF NOTES; LOST
NOTES. The Notes are issuable as registered notes without coupons in
denominations of at least $1,000,000, except as may be necessary to reflect any
principal amount not evenly divisible by $1,000,000; provided, however, that no
such minimum denomination shall apply to Notes issued upon transfer by any
holder of the Notes to Prudential or Prudential Affiliates or to any other
entity or group of
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affiliates with respect to which the Notes so issued or transferred shall be
managed by a single entity. The Company shall keep at its principal office a
register in which the Company shall provide for the registration of Notes and of
transfers of Notes. Upon surrender for registration of transfer of any Note at
the principal office of the Company, the Company shall, at its expense, execute
and deliver one or more new Notes of like tenor and of a like aggregate
principal amount, registered in the name of such transferee or transferees. At
the option of the holder of any Note, such Note may be exchanged for other Notes
of like tenor and of any authorized denominations, of a like aggregate principal
amount, upon surrender of the Note to be exchanged at the principal office of
the Company. Whenever any Notes are so surrendered for exchange, the Company
shall, at its expense, execute and deliver the Notes which the holder making the
exchange is entitled to receive. Each prepayment of principal payable on each
prepayment date upon each new Note issued upon any such transfer or exchange
shall be in the same proportion to the unpaid principal amount of such new Note
as the prepayment of principal payable on such date on the Note surrendered for
registration of transfer or exchange bore to the unpaid principal amount of such
Note. No reference need be made in any such new Note to any prepayment or
prepayments of principal previously due and paid upon the Note surrendered for
registration of transfer or exchange. Every Note surrendered for registration of
transfer or exchange shall be duly endorsed, or be accompanied by a written
instrument of transfer duly executed, by the holder of such Note or such
holder's attorney duly authorized in writing. Any Note or Notes issued in
exchange for any Note or upon transfer thereof shall carry the rights to unpaid
interest and interest to accrue which were carried by the Note so exchanged or
transferred, so that neither gain nor loss of interest shall result from any
such transfer or exchange. Upon receipt of written notice from the holder of any
Note of the loss, theft, destruction or mutilation of such Note and, in the case
of any such loss, theft or destruction, upon receipt of such holder's unsecured
indemnity agreement, or in the case of any such mutilation upon surrender and
cancellation of such Note, the Company will make and deliver a new Note, of like
tenor, in lieu of the lost, stolen, destroyed or mutilated Note.
11E. PERSONS DEEMED OWNERS; PARTICIPATIONS. Prior to due
presentment for registration of transfer, the Company may treat the Person in
whose name any Note is registered as the owner and holder of such Note for the
purpose of receiving payment of principal of and interest on, and any
Yield-Maintenance Amount payable with respect to, such Note and for all other
purposes whatsoever, whether or not such Note shall be overdue, and the Company
shall not be affected by notice to the contrary. Subject to the preceding
sentence, the holder of any Note may from time to time grant participations in
all or any part of such Note to any Person on such terms and conditions as may
be determined by such holder in its sole and absolute discretion.
11F. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT.
All representations and warranties contained herein or made in writing by or on
behalf of the Company in connection herewith shall survive the execution and
delivery of this Agreement and the Notes, the transfer by any Purchaser of any
Note or portion thereof or interest therein and the payment of any Note, and may
be relied upon by any Transferee, regardless of any investigation made at any
time by or on behalf of any Purchaser or any Transferee. Subject to the
preceding sentence, this Agreement and the Notes embody the entire agreement and
understanding between the parties
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hereto with respect to the subject matter hereof and supersede all prior
agreements and understandings relating to such subject matter.
11G. SUCCESSORS AND ASSIGNS. All covenants and other agreements
in this Agreement contained by or on behalf of any of the parties hereto shall
bind and inure to the benefit of the respective successors and assigns of the
parties hereto (including, without limitation, any Transferee) whether so
expressed or not.
11H. INDEPENDENCE OF COVENANTS. All covenants hereunder shall be
given independent effect so that if a particular action or condition is
prohibited by any one of such covenants, the fact that it would be permitted by
an exception to, or otherwise be in compliance within the limitations of,
another covenant shall not avoid (i) the occurrence of a Default or Event of
Default if such action is taken or such condition exists or (ii) in any way
prejudice an attempt by the holder of any Note to prohibit through equitable
action or otherwise the taking of any action by the Company or any Subsidiary
which would result in a Default or Event of Default.
11I. NOTICES. All written communications provided for hereunder
(other than communications provided for under paragraph 2) shall be sent by
first class mail or nationwide overnight delivery service (with charges prepaid)
and (i) if to any Purchaser, addressed as specified for such communications in
the Purchaser Schedule attached hereto (in the case of the Series I Notes) or
the Purchaser Schedule attached to the applicable Confirmation of Acceptance (in
the case of any Shelf Notes) or at such other address as any such Purchaser
shall have specified to the Company in writing, (ii) if to any other holder of
any Note, addressed to it at such address as it shall have specified in writing
to the Company or, if any such holder shall not have so specified an address,
then addressed to such holder in care of the last holder of such Note which
shall have so specified an address to the Company and (iii) if to the Company,
addressed to it at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Chief Financial Officer, provided, however, that any such
communication to the Company may also, at the option of the Person sending such
communication, be delivered by any other means either to the Company at its
address specified above or to any Authorized Officer of the Company. Any
communication pursuant to paragraph 2 shall be made by the method specified for
such communication in paragraph 2, and shall be effective to create any rights
or obligations under this Agreement only if, in the case of a telephone
communication, an Authorized Officer of the party conveying the information and
of the party receiving the information are parties to the telephone call, and in
the case of a telecopier communication, the communication is signed by an
Authorized Officer of the party conveying the information, addressed to the
attention of an Authorized Officer of the party receiving the information, and
in fact received at the telecopier terminal the number of which is listed for
the party receiving the communication in the Information Schedule or at such
other telecopier terminal as the party receiving the information shall have
specified in writing to the party sending such information.
11J. PAYMENTS DUE ON NON-BUSINESS DAYS. Anything in this
Agreement or the Notes to the contrary notwithstanding, any payment of principal
of or interest on, or Yield-Maintenance Amount payable with respect to, any Note
that is due on a date other than a Business
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Day shall be made on the next succeeding Business Day. If the date for any
payment is extended to the next succeeding Business Day by reason of the
preceding sentence, the period of such extension shall be included in the
computation of the interest payable on such Business Day.
11K. SEVERABILITY. Any provision of this Agreement which 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 not invalidate or render
unenforceable such provision in any other jurisdiction.
11L. DESCRIPTIVE HEADINGS. The descriptive headings of the
several paragraphs of this Agreement are inserted for convenience only and do
not constitute a part of this Agreement.
11M. SATISFACTION REQUIREMENT. If any agreement, certificate or
other writing, or any action taken or to be taken, is by the terms of this
Agreement required to be satisfactory to any Purchaser, to any holder of Notes
or to the Required Holder(s), the determination of such satisfaction shall be
made by such Purchaser, such holder or the Required Holder(s), as the case may
be, in the sole and exclusive judgment (exercised in good faith) of the Person
or Persons making such determination.
11N. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY,
THE INTERNAL LAW OF THE STATE OF ILLINOIS.
11O. SEVERALTY OF OBLIGATIONS. The sales of Notes to the
Purchasers are to be several sales, and the obligations of Prudential and the
Purchasers under this Agreement are several obligations. No failure by
Prudential or any Purchaser to perform its obligations under this Agreement
shall relieve any other Purchaser or the Company of any of its obligations
hereunder, and neither Prudential nor any Purchaser shall be responsible for the
obligations of, or any action taken or omitted by, any other such Person
hereunder.
11P. 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.
11Q. DISCLOSURE TO OTHER PERSONS. Each Purchaser (and each
Transferee by its acceptance of an interest in any Note) agrees to use its
reasonable best efforts to hold in confidence and not disclose any Confidential
Information; provided, however, that nothing contained herein shall prevent the
holder of any Note from delivering copies of any financial statements and other
documents delivered to such holder, and disclosing any other information
disclosed to such holder, by the Company or any Subsidiary in connection with or
pursuant to this Agreement to (i) such holder's directors, officers, employees,
agents and professional consultants, (ii) any other holder of any Note, (iii)
any Person to which such holder offers to sell such Note or any part thereof,
(iv) any Person to which such holder sells or offers to sell a participation in
all or any part of such Note,
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(v) any federal or state regulatory authority having jurisdiction over such
holder, (vi) the National Association of Insurance Commissioners or any similar
organization or any nationally recognized rating agency or (vii) any other
Person to which such delivery or disclosure may be reasonably necessary or
appropriate (a) in compliance with any law, rule, regulation or order applicable
to such holder, (b) in response to any subpoena or other legal process or
investigative demand, (c) in connection with any litigation in connection with
this Agreement to which such holder is a party or (d) in order to protect such
holder's investment and enforce the rights of such holder under this Agreement;
and provided further that after notice to the Company the holders of the Notes
shall be free to correct any false or misleading information which may become
public concerning their relationship to the Company or any of its Subsidiaries.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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11R. BINDING AGREEMENT. When this Agreement is executed and
delivered by the Company and Prudential, it shall become a binding agreement
between the Company and Prudential. This Agreement shall also inure to and each
such Purchaser shall be bound by this Agreement to the extent provided in such
Confirmation of Acceptance.
Very truly yours,
----------------------------------
By:
-------------------------------
Name:
Title:
The foregoing Agreement is
hereby accepted as of the
date first above written.
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA
By:
-----------------------------
Vice President
PRUCO LIFE INSURANCE COMPANY
By:
-----------------------------
Vice President
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