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HANDY & ▇▇▇▇▇▇
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NOTE PURCHASE AGREEMENT
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Dated as of April 17, 1997
$125,000,000
7.31% Senior Notes due April 30, 2004
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TABLE OF CONTENTS
PAGE
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1. AUTHORIZATION OF NOTES................................................................................. 1
2. SALE AND PURCHASE OF NOTES............................................................................. 1
3. CLOSING................................................................................................ 2
4. CONDITIONS TO CLOSING.................................................................................. 2
4.1 Representations and Warranties................................................................ 2
4.2 Performance; No Default....................................................................... 2
4.3 Compliance Certificates....................................................................... 2
4.4 Opinions of Counsel........................................................................... 3
4.5 Purchase Permitted By Applicable Law, etc..................................................... 3
4.6 Sale of Other Notes........................................................................... 3
4.7 Payment of Special Counsel Fees............................................................... 3
4.8 Private Placement Number...................................................................... 4
4.9 Changes in Corporate Structure................................................................ 4
4.10 Proceedings and Documents..................................................................... 4
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.......................................................... 4
5.1 Organization; Power and Authority............................................................. 4
5.2 Authorization, etc............................................................................ 4
5.3 Disclosure.................................................................................... 5
5.4 Organization and Ownership of Shares of Subsidiaries; Affiliates.............................. 5
5.5 Financial Statements.......................................................................... 6
5.6 Compliance with Laws, Other Instruments, etc.................................................. 6
5.7 Governmental Authorizations, etc.............................................................. 7
5.8 Litigation; Observance of Agreements, Statutes and Orders..................................... 7
5.9 Taxes......................................................................................... 7
5.10 Title to Property; Leases..................................................................... 8
5.11 Licenses, Permits, etc........................................................................ 8
5.12 Compliance with Pension Plan Laws............................................................. 8
5.13 Private Offering by the Company............................................................... 10
5.14 Use of Proceeds; Margin Regulations........................................................... 10
5.15 Existing Debt, Future Payables Transactions and Consignments; Future Liens.................... 10
5.16 Foreign Assets Control Regulations, etc....................................................... 11
5.17 Status under Certain Statutes................................................................. 11
5.18 Environmental Matters......................................................................... 11
6. REPRESENTATIONS OF THE PURCHASER....................................................................... 12
6.1 Purchase for Investment....................................................................... 12
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TABLE OF CONTENTS (cont.)
PAGE
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6.2 Source of Funds............................................................................... 12
6.3 Investor Representations...................................................................... 14
7. INFORMATION AS TO COMPANY.............................................................................. 14
7.1 Financial and Business Information............................................................ 14
7.2 Officer's Certificate......................................................................... 17
7.3 Inspection.................................................................................... 18
8. PAYMENT OF THE NOTES................................................................................... 19
8.1 Payment at Maturity........................................................................... 19
8.2 Optional Prepayments with Make-Whole Amount................................................... 19
8.3 Allocation of Partial Prepayments............................................................. 19
8.4 Maturity; Surrender, etc...................................................................... 19
8.5 No Other Optional Prepayments or Purchase of Notes............................................ 20
8.6 Make-Whole Amount............................................................................. 20
9. AFFIRMATIVE COVENANTS.................................................................................. 21
9.1 Compliance with Law........................................................................... 21
9.2 Insurance..................................................................................... 21
9.3 Maintenance of Properties..................................................................... 22
9.4 Payment of Taxes and Claims................................................................... 22
9.5 Corporate Existence, etc...................................................................... 22
10. NEGATIVE COVENANTS..................................................................................... 23
10.1 Transactions with Affiliates.................................................................. 23
10.2 Merger, Consolidation, etc.................................................................... 23
10.3 Sale of Assets, Etc........................................................................... 24
10.4 Fixed Charges Coverage Ratio.................................................................. 26
10.5 Company Debt Incurrence....................................................................... 26
10.6 Restricted Subsidiary Debt Incurrence......................................................... 26
10.7 Liens......................................................................................... 27
10.8 Consolidated Net Worth........................................................................ 30
10.9 Line of Business.............................................................................. 30
10.10 Sale-and-Leasebacks........................................................................... 30
10.11 Designation of Subsidiaries................................................................... 31
10.12 Precious Metals Transactions.................................................................. 32
11. EVENTS OF DEFAULT...................................................................................... 33
12. REMEDIES ON DEFAULT, ETC............................................................................... 36
12.1 Acceleration.................................................................................. 36
12.2 Other Remedies................................................................................ 37
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TABLE OF CONTENTS (cont.)
PAGE
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12.3 Rescission.................................................................................... 37
12.4 No Waivers or Election of Remedies, Expenses, etc............................................. 37
13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES.......................................................... 37
13.1 Registration of Notes......................................................................... 37
13.2 Transfer and Exchange of Notes................................................................ 38
13.3 Replacement of Notes.......................................................................... 38
14. PAYMENTS ON NOTES...................................................................................... 39
14.1 Place of Payment.............................................................................. 39
14.2 Home Office Payment........................................................................... 39
15. EXPENSES, ETC.......................................................................................... 39
15.1 Transaction Expenses.......................................................................... 39
15.2 Survival...................................................................................... 40
16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE
AGREEMENT.............................................................................................. 40
17. AMENDMENT AND WAIVER................................................................................... 40
17.1 Requirements.................................................................................. 40
17.2 Solicitation of Holders of Notes.............................................................. 41
17.3 Binding Effect, etc........................................................................... 41
17.4 Notes held by Company, etc.................................................................... 41
18. NOTICES................................................................................................ 42
19. REPRODUCTION OF DOCUMENTS.............................................................................. 42
20. CONFIDENTIAL INFORMATION............................................................................... 42
21. SUBSTITUTION OF PURCHASER.............................................................................. 44
22. MISCELLANEOUS.......................................................................................... 44
22.1 Successors and Assigns........................................................................ 44
22.2 Payments Due on Non-Business Days............................................................. 44
22.3 Generally Accepted Accounting Principles...................................................... 45
22.4 Severability.................................................................................. 45
22.5 Construction.................................................................................. 45
22.6 Counterparts.................................................................................. 45
22.7 Governing Law................................................................................. 46
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SCHEDULE A -- Information Relating to Purchasers
SCHEDULE B -- Defined Terms
SCHEDULE 4.2 -- Pre-Closing Transactions
SCHEDULE 4.9 -- Changes in Corporate Structure
SCHEDULE 5.3 -- Disclosure Materials
SCHEDULE 5.4 -- Subsidiaries of the Company and Ownership of Subsidiary Stock
SCHEDULE 5.5 -- Financial Statements
SCHEDULE 5.8 -- Certain Litigation
SCHEDULE 5.11 -- Patents, etc.
SCHEDULE 5.12 -- ERISA Affiliates
SCHEDULE 5.14 -- Use of Proceeds
SCHEDULE 5.15(a) -- Existing Debt and Future Payables Transactions
SCHEDULE 5.15(b) -- Existing Consignment Arrangements
SCHEDULE 5.15(c) -- Liens
SCHEDULE 5.18 -- Environmental Matters
EXHIBIT 1 -- Form of 7.31% Senior Note due April 30, 2004
EXHIBIT 4.4(a)(i) -- Form of Opinion of Special Counsel for the Company
EXHIBIT 4.4(a)(ii) -- Form of Opinion of General Counsel of the Company
EXHIBIT 4.4(b) -- Form of Opinion of Special Counsel for the Purchasers
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HANDY & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
NOTE PURCHASE AGREEMENT
$125,000,000
7.31% Senior Notes Due April 30, 2004
Dated as of April 17, 1997
[Separately addressed to each of the Purchasers
listed in the attached Schedule A]
Ladies and Gentlemen:
HANDY & ▇▇▇▇▇▇, a New York corporation (together with its successors
and assigns, the "Company"), agrees with you as follows:
1. AUTHORIZATION OF NOTES.
The Company will authorize the issue and sale of $125,000,000 aggregate
principal amount of its 7.31% Senior Notes due April 30, 2004 (the "Notes", such
term to include any such notes issued in substitution therefor pursuant to
Section 13 of this Agreement or the Other Agreements (as hereinafter defined)).
The Notes shall be substantially in the form set out in Exhibit 1, with such
changes therefrom, if any, as may be approved by you and the Company. Certain
capitalized terms used in this Agreement are defined in Schedule B; references
to a "Schedule" or an "Exhibit" are, unless otherwise specified, to a Schedule
or an Exhibit attached to this Agreement.
2. SALE AND PURCHASE OF NOTES.
Subject to the terms and conditions of this Agreement, the Company will
issue and sell to you and you will purchase from the Company, at the Closing
provided for in Section 3, Notes in the principal amount specified below your
name in Schedule A at the purchase price of 100% of the principal amount
thereof. Contemporaneously with entering into this Agreement, the Company is
entering into separate Note Purchase Agreements (the "Other Agreements")
identical with this
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Agreement with each of the other purchasers named in Schedule A (the "Other
Purchasers"), providing for the sale at such Closing to each of the Other
Purchasers of Notes in the principal amount specified below its name in Schedule
A. Your obligation hereunder and the obligations of the Other Purchasers under
the Other Agreements are several and not joint obligations and you shall have no
obligation under any Other Agreement and no liability to any Person for the
performance or non-performance by any Other Purchaser thereunder.
3. CLOSING.
The sale and purchase of the Notes to be purchased by you and the Other
Purchasers shall occur at the offices of the Company, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ at 10:00 a.m., local time, at a closing (the "Closing") on
April 17, 1997 or on such other Business Day thereafter on or prior to April 24,
1997 as may be agreed upon by the Company and you and the Other Purchasers. At
the Closing, the Company will deliver to you the Notes to be purchased by you in
the form of a single Note (or such greater number of Notes in denominations of
at least $500,000 as you may request), dated the date of the Closing and
registered in your name (or in the name of your nominee), against delivery by
you to the Company or its order of immediately available funds in the amount of
the purchase price therefor by wire transfer of immediately available funds for
the account of the Company to account number 823-▇▇▇▇▇▇▇ at The Bank of New
York, ▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ABA # ▇▇▇▇▇▇▇▇▇, Reference: Handy
& ▇▇▇▇▇▇. If at the Closing the Company shall fail to tender such Notes to you
as provided above in this Section 3, or any of the conditions specified in
Section 4 shall not have been fulfilled to your satisfaction, you shall, at your
election, be relieved of all further obligations under this Agreement, without
thereby waiving any rights you may have by reason of such failure or such
nonfulfillment.
4. CONDITIONS TO CLOSING.
Your obligation to purchase and pay for the Notes to be sold to you at
the Closing is subject to the fulfillment to your satisfaction, prior to or at
the Closing, of the following conditions:
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4.1 Representations and Warranties.
The representations and warranties of the Company in this Agreement
shall be correct when made and at the time of the Closing.
4.2 Performance; No Default.
The Company shall have performed and complied with all agreements and
conditions contained in this Agreement required to be performed or complied with
by it prior to or at the Closing, and after giving effect to the issue and sale
of the Notes (and the application of the proceeds thereof as contemplated by
Schedule 5.14) no Default or Event of Default shall have occurred and be
continuing. Except as set forth on Schedule 4.2, neither the Company nor any
Subsidiary shall have entered into any transaction since the date of the
Memorandum that would have been prohibited by any of Sections 10.1, 10.2, 10.3,
10.5, 10.6, 10.7 or 10.10 had such Sections applied since such date.
4.3 Compliance Certificates.
(a) Officer's Certificate. The Company shall have delivered to
you an Officer's Certificate, dated the date of the Closing, certifying
that the conditions specified in Sections 4.1, 4.2 and 4.9 have been
fulfilled.
(b) Secretary's Certificate. The Company shall have delivered
to you a certificate of its Secretary or one of its Assistant
Secretaries, dated the date of the Closing, certifying as to the
resolutions attached thereto and other corporate proceedings relating
to the authorization, execution and delivery of the Notes, this
Agreement and the Other Agreements.
4.4 Opinions of Counsel.
You shall have received opinions in form and substance satisfactory to
you, dated the date of the Closing,
(a) from (i) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special
counsel for the Company, and (ii) ▇▇▇▇ ▇. ▇▇▇▇▇, Vice President and
General Counsel of the Company, substantially in the forms set out in
Exhibit 4.4(a)(i) and Exhibit 4.4(a)(ii), respectively, and covering
such other matters incident to the transactions contemplated hereby as
you or your special counsel may
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reasonably request (and the Company hereby instructs such counsel to
deliver such opinion to you), and
(b) from ▇▇▇▇ & ▇▇▇▇▇▇, your special counsel in connection
with such transactions, substantially in the form set out in Exhibit
4.4(b) and covering such other matters incident to such transactions as
you may reasonably request.
4.5 Purchase Permitted By Applicable Law, etc.
On the date of the Closing your purchase of Notes shall (a) be
permitted by the laws and regulations of each jurisdiction to which you are
subject, without recourse to provisions (such as section 1405(a)(8) of the New
York Insurance Law) permitting limited investments by insurance companies
without restriction as to the character of the particular investment, (b) not
violate any applicable law or regulation (including, without limitation,
Regulation G, T or X of the Board of Governors of the Federal Reserve System)
and (c) not subject you to any tax, penalty or liability under or pursuant to
any applicable law or regulation, which law or regulation was not in effect on
the date of your execution and delivery of this Agreement. If requested by you,
you shall have received an Officer's Certificate certifying as to such matters
of fact as you may reasonably specify to enable you to determine whether such
purchase is so permitted.
4.6 Sale of Other Notes.
Contemporaneously with the Closing the Company shall sell to the Other
Purchasers and the Other Purchasers shall purchase from the Company the Notes to
be purchased by them at the Closing as specified in Schedule A.
4.7 Payment of Special Counsel Fees.
Without limiting the provisions of Section 15.1, the Company shall have
paid on or before the Closing the reasonable fees, charges and disbursements of
your special counsel referred to in Section 4.4 to the extent reflected in a
statement of such counsel rendered to the Company at least three Business Days
prior to the date of the Closing.
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4.8 Private Placement Number.
A Private Placement Number issued by Standard & Poor's CUSIP Service
Bureau (in cooperation with the Securities Valuation Office of the National
Association of Insurance Commissioners) shall have been obtained for the Notes.
4.9 Changes in Corporate Structure.
Except as specified in Schedule 4.9, the Company shall not have changed
its jurisdiction of incorporation or been a party to any merger or consolidation
and shall not have succeeded to all or any substantial part of the liabilities
of any other entity, at any time following the date of the most recent financial
statements referred to in Schedule 5.5.
4.10 Proceedings and Documents.
All corporate and other proceedings in connection with the transactions
contemplated by this Agreement and all documents and instruments incident to
such transactions shall be satisfactory to you and your special counsel, and you
and your special counsel shall have received all such counterpart originals or
certified or other copies of such documents as you or they may reasonably
request.
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to you, as of the date of the
Closing, that:
5.1 Organization; Power and Authority.
The Company is a corporation duly organized, validly existing and in
good standing under the laws of its jurisdiction of incorporation, and is duly
qualified as a foreign corporation and is in good standing in each jurisdiction
in which such qualification is required by law, other than those jurisdictions
as to which the failure to be so qualified or in good standing could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. The Company has the corporate power and authority to own or hold
under lease the Properties it purports to own or hold under lease, to transact
the business it currently transacts, to execute and deliver this Agreement and
the Other Agreements and the Notes and to perform the provisions hereof and
thereof, except to the extent that the failure to have such power or authority
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could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
5.2 Authorization, etc.
This Agreement, the Other Agreements and the Notes have been duly
authorized by all necessary corporate action on the part of the Company, and
this Agreement constitutes, and upon execution and delivery thereof each Note
will constitute, a legal, valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, except as such
enforceability may be limited by (a) applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally and (b) general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
5.3 Disclosure.
The Company, through its agent, ▇▇▇▇▇▇▇, Sachs & Co., has delivered to
you and each Other Purchaser a copy of a Confidential Private Placement
Memorandum, dated February, 1997 (the "Memorandum"), relating to the
transactions contemplated hereby. The Memorandum fairly describes, in all
material respects, the general nature of the business and principal Properties
of the Company and its Subsidiaries as of the date thereof. Except as disclosed
in Schedule 5.3, this Agreement, the Memorandum, the Company's Annual Report on
Form 10-K for its fiscal year ended December 31, 1996, the financial statements
listed in Schedule 5.5 and the other documents, certificates or other writings
delivered to you by or on behalf of the Company pursuant to this Agreement,
taken as a whole, do not contain any untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein not
misleading in light of the circumstances under which they were made. Except as
disclosed in the Memorandum or as expressly described in Schedule 5.3, or in one
of the documents, certificates or other writings identified therein, or in the
financial statements listed in Schedule 5.5, since December 31, 1996, there has
been no change in the financial condition, operations, business or Properties of
the Company or any Subsidiary except changes that individually or in the
aggregate could not reasonably be expected to have a Material Adverse Effect.
There is no fact known to the Company that could reasonably be expected to have
a Material Adverse Effect that would be materially disproportionate in its
effect on the Company, compared with
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the Company's competitors, and which has not been set forth herein or in the
Memorandum, in the Company's Annual Report on Form 10-K for its fiscal year
ended December 31, 1996 or in the other documents, certificates and other
writings delivered to you by or on behalf of the Company specifically for use in
connection with the transactions contemplated hereby. Without limiting any of
the Company's representations and warranties in this Section 5.3, it is
understood that neither you nor the Company has intended that the scope of
disclosure made to you in the materials referred to in this Section 5.3 would be
the same as that in, or would address all the matters customarily addressed in,
a registration statement filed in connection with a public offering under the
Securities Act.
5.4 Organization and Ownership of Shares of Subsidiaries;
Affiliates.
(a) Schedule 5.4 contains (except as noted therein) complete
and correct lists of (i) the Company's Subsidiaries, showing, as to
each Subsidiary, the correct name thereof, the jurisdiction of its
organization, 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 whether, as of the date of the Closing, such
Subsidiary is to be designated as a "Restricted Subsidiary" or an
"Unrestricted Subsidiary" and (ii) the Company's Affiliates, other than
Subsidiaries.
(b) All of the outstanding shares of capital stock or similar
equity interests of each Subsidiary shown in Schedule 5.4 as being
owned by the Company and its Subsidiaries have been validly issued, are
fully paid and nonassessable (except to the extent that the failure of
any such shares or other equity interests to be so issued, paid or
nonassessable could not, individually or in the aggregate, be
reasonably expected to have a Material Adverse Effect) and are owned by
the Company or another Subsidiary free and clear of any Lien (except
for Liens permitted by Section 10.7).
(c) Each Subsidiary identified in Schedule 5.4 is a
corporation or other legal entity duly organized, validly existing and
in good standing under the laws of its jurisdiction of organization,
and is duly qualified as a foreign corporation or other legal entity
and is in good standing in each jurisdiction in which such
qualification is required by law, other than those jurisdictions as to
which
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the failure to be so qualified or in good standing could not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect. Each such Subsidiary has the corporate or
other power and authority to own or hold under lease the Properties it
purports to own or hold under lease and to transact the business it
currently transacts, except to the extent that the failure to have any
such power or authority could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(d) No Subsidiary is a party to, or otherwise subject to any
legal restriction or any agreement (other than this Agreement, the
agreements listed in Schedule 5.4, agreements requiring that
distributions to holders of equity interests be ratable in proportion
to such interests, and customary limitations imposed by corporate or
similar law statutes) restricting the ability of such Subsidiary to pay
dividends out of profits or make any other similar distributions of
profits to the Company or any of its Subsidiaries that owns outstanding
shares of capital stock or similar equity interests of such Subsidiary.
5.5 Financial Statements.
The Company has delivered to you and each Other Purchaser copies of the
consolidated financial statements of the Company and its Subsidiaries listed in
Schedule 5.5. All of said financial statements (including in each case the
related schedules and notes) fairly present in all material respects the
consolidated financial position of the Company and its Subsidiaries as of the
respective dates specified in such financial statements and the consolidated
results of their operations and cash flows for the respective periods so
specified and have been prepared in accordance with GAAP consistently applied
throughout the periods involved except as set forth in the notes thereto
(subject, in the case of any interim financial statements, to normal year-end
adjustments).
5.6 Compliance with Laws, Other Instruments, etc.
The execution, delivery and performance by the Company of this
Agreement and the Notes will not
(a) contravene, result in any breach of, or constitute a
default under, or result in the creation of any Lien in respect of any
Property of the Company or any
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Subsidiary under, any indenture, mortgage, deed of trust, loan,
purchase or credit agreement, lease, corporate charter or by-laws, or
any other agreement or instrument to which the Company or any
Subsidiary is bound or by which the Company or any Subsidiary or any of
their respective Properties may be bound or affected,
(b) conflict with or result in a breach of any of the terms,
conditions or provisions of any order, judgment, decree, or ruling of
any court, arbitrator or Governmental Authority applicable to the
Company or any Subsidiary, or
(c) violate any provision of any statute or other rule or
regulation of any Governmental Authority applicable to the Company or
any Subsidiary.
5.7 Governmental Authorizations, etc.
No consent, approval or authorization of, or registration, filing or
declaration with, any Governmental Authority is required in connection with the
execution, delivery or performance by the Company of this Agreement or the Notes
except such consents, approvals, authorizations, registrations, filings, and
declarations as are required because of the nature of your business or
regulatory status or that of any Other Purchaser.
5.8 Litigation; Observance of Agreements, Statutes and Orders.
(a) Except as disclosed in Schedule 5.8, there are no actions,
suits or proceedings pending or, to the actual knowledge of any
Responsible Officer, threatened against or affecting the Company or any
Subsidiary or any Property of the Company or any Subsidiary in any
court or before any arbitrator of any kind or before or by any
Governmental Authority that, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect.
(b) To the actual knowledge of any Responsible Officer,
neither the Company nor any Subsidiary is in default under any term of
any agreement or instrument to which it is a party or by which it is
bound, or any order, judgment, decree or ruling of any court,
arbitrator or Governmental Authority or is in violation of any
applicable law, ordinance, rule or regulation (including, without
limitation, Environmental Laws) of any Governmental
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Authority, which default or violation, individually or in the
aggregate, could reasonably be expected to have a Material Adverse
Effect.
5.9 Taxes.
The Company and its Subsidiaries have filed all tax returns that are
required to have been filed in any jurisdiction, and have paid all taxes shown
to be due and payable on such returns and all other taxes and assessments levied
upon them or their Properties, assets, income or franchises, to the extent such
taxes and assessments have become due and payable and before they have become
delinquent, except for any taxes and assessments and tax returns in respect
thereof, (a) the amount of which is not individually or in the aggregate
Material, (b) the amount, applicability or validity of which is currently being
contested in good faith by appropriate proceedings and with respect to which the
Company or a Subsidiary, as the case may be, has established adequate reserves
in accordance with GAAP or (c) to the extent the failure to pay or file, as
applicable, could not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect. The Company knows of no basis for any other
tax or assessment that could reasonably be expected to have a Material Adverse
Effect. The charges, accruals and reserves on the books of the Company and its
Subsidiaries in respect of Federal, state or other taxes for all fiscal periods
are adequate except to the extent that the failure of such charges, accruals and
reserves to be adequate, individually or in the aggregate, could not reasonably
be expected to have a Material Adverse Effect. As of April 11, 1997, the Federal
income tax liabilities of the Company and its Subsidiaries have been determined
by the Internal Revenue Service and paid for all fiscal years up to and
including the fiscal year ended December 31, 1992.
5.10 Title to Property; Leases.
The Company and its Subsidiaries have good and marketable title to, or
valid leasehold interests in, their respective Properties, including all such
Properties reflected in the most recent audited balance sheet referred to in
Section 5.5 or acquired by the Company or any Subsidiary after said date (except
as sold or otherwise disposed of in the ordinary course of business and except
for the sale of Precious Metals, whether or not in the ordinary course of
business), in each case free and clear of Liens prohibited by this Agreement,
except to the extent that the failure to have any such title or
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leasehold interest could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
5.11 Licenses, Permits, etc.
Except as disclosed in Schedule 5.11 or except to the extent that the
failure of any of the following to be true could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect,
(a) the Company and its Subsidiaries own or possess all
licenses, permits, franchises, authorizations, patents, copyrights,
service marks, trademarks and trade names, or rights thereto, necessary
for their respective businesses, without known conflict with the rights
of others;
(b) to the actual knowledge of any Responsible Officer, no
product or practice of the Company or any Subsidiary infringes on any
license, permit, franchise, authorization, patent, copyright, service
▇▇▇▇, trademark, trade name or other right owned by any other Person;
and
(c) to the actual knowledge of any Responsible Officer, there
is no violation by any Person of any right of the Company or any of its
Subsidiaries with respect to any patent, copyright, service ▇▇▇▇,
trademark, trade name or other right owned or licensed to the Company
or any of its Subsidiaries.
5.12 Compliance with Pension Plan Laws.
(a) The Company and each ERISA Affiliate have operated and
administered each Plan in compliance with all applicable laws except
for such instances of noncompliance as have not resulted in and could
not reasonably be expected to result in a Material Adverse Effect.
Neither the Company nor any ERISA Affiliate has incurred any liability
pursuant to Title I or IV of ERISA or the penalty or excise tax
provisions of the Code relating to employee benefit plans (as defined
in section 3 of ERISA), and no event, transaction or condition has
occurred or exists that could reasonably be expected to result in the
incurrence of any such liability by the Company or any ERISA Affiliate,
or in the imposition of any Lien on any of the rights, Properties or
assets of the Company or any ERISA Affiliate, in either case pursuant
to Title I or IV of ERISA or to such penalty or excise tax
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provisions or to section 401(a)(29) or 412 of the Code, other than such
liabilities or Liens as could not, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect.
(b) The sum of the present values of the aggregate benefit
liabilities under each of the Plans (other than Multiemployer Plans)
that is underfunded, determined as of the end of such Plan's most
recently ended plan year on the basis of the actuarial assumptions
specified for funding purposes in such Plan's most recent actuarial
valuation report, did not exceed the sum of the aggregate current
values of the assets of each such Plan allocable to such benefit
liabilities by more than $10,000,000. The term "benefit liabilities"
has the meaning specified in section 4001 of ERISA and the terms
"current value" and "present value" have the meaning specified in
section 3 of ERISA.
(c) The Company and the ERISA Affiliates have not incurred
withdrawal liabilities (and are not subject to contingent withdrawal
liabilities) under section 4201 or 4204 of ERISA in respect of
Multiemployer Plans that, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect.
(d) Except as set forth in the financial statements referred
to in Section 5.5, the expected postretirement benefit obligation
(determined as of the last day of the Company's most recently ended
fiscal year in accordance with Financial Accounting Standards Board
Statement No. 106, without regard to liabilities attributable to
continuation coverage mandated by section 4980B of the Code) of the
Company and its Subsidiaries could not reasonably be expected to have a
Material Adverse Effect.
(e) The execution and delivery of this Agreement and the
issuance and sale of the Notes hereunder will not involve any
transaction that is subject to the prohibitions of section 406 of ERISA
or in connection with which a tax could be imposed pursuant to section
4975(c)(1)(A)-(D) of the Code. The representation by the Company in the
first sentence of this Section 5.12(e) is made in reliance upon and
subject to the accuracy of your representation in Section 6.2 as to the
sources of the funds used to pay the purchase price of the Notes to be
purchased by you.
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(f) Schedule 5.12 sets forth a list of all "employee benefit
plans" maintained by the Company (or any ERISA Affiliate) or in respect
of which the Notes could constitute an "employer security" ("employee
benefit plan" has the meaning specified in section 3 of ERISA and
"employer security" has the meaning specified in section 407(d) of
ERISA).
(g) All Non-US Pension Plans have been established, operated,
administered and maintained in compliance with all laws, regulations
and orders applicable thereto except for such failures to comply, in
the aggregate for all such failures, that could not reasonably be
expected to have a Material Adverse Effect. All premiums, contributions
and any other amounts required by applicable Non-US Pension Plan
documents or applicable laws have been paid or accrued as required,
except for premiums, contributions and amounts that, in the aggregate
for all such obligations, could not reasonably be expected to have a
Material Adverse Effect.
5.13 Private Offering by the Company.
Neither the Company nor anyone authorized to act on its behalf has
offered the Notes or any similar Securities for sale to, or solicited any offer
to buy any of the same from, or otherwise approached or negotiated in respect
thereof with, any Person other than you, the Other Purchasers and not more than
70 other Institutional Investors, each of which has been offered the Notes at a
private sale for investment. Neither the Company nor anyone authorized to act on
its behalf has taken, or will take, any action that would subject the issuance
or sale of the Notes to the registration requirements of section 5 of the
Securities Act.
5.14 Use of Proceeds; Margin Regulations.
The Company will apply the proceeds of the sale of the Notes as set
forth in Schedule 5.14. No part of the proceeds from the sale of the Notes
hereunder will be used, directly or indirectly, for the purpose of buying or
carrying any margin stock within the meaning of Regulation G of the Board of
Governors of the Federal Reserve System (12 CFR 207), or for the purpose of
buying or carrying or trading in any Securities under such circumstances as to
involve the Company in a violation of Regulation X of said Board (12 CFR 224) or
to involve any broker or dealer in a violation of Regulation T of said Board (12
CFR 220). Margin stock does not constitute
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more than 25% of the value of the consolidated assets of the Company and its
Subsidiaries and the Company does not have any present intention that margin
stock will constitute more than 25% of the value of such assets.
5.15 Existing Debt, Future Payables Transactions and Consignments;
Future Liens.
(a) Schedule 5.15(a) sets forth a complete and correct list of
all outstanding Debt and all Future Payables Transactions of the
Company and its Subsidiaries as of March 31, 1997 with a principal
amount or a payment obligation in excess of $5,000,000 (and specifying,
as to each such issue of Debt and Future Payables Transaction, the
collateral, if any, securing such Debt or Future Payables Transaction,
as the case may be), since which date there has been no Material change
in the amounts, interest rates, sinking funds, instalment payments or
maturities of the Debt or Future Payables Transactions of the Company
or its Subsidiaries. The aggregate outstanding principal amount of all
Debt, and the aggregate payment obligations in respect of all Future
Payables Transactions, of the Company and its Subsidiaries as of March
31, 1997 that are not listed on Schedule 5.15(a) do not exceed
$5,000,000. Neither the Company nor any Subsidiary is in default in the
payment of any principal or interest on, or any other amount payable in
respect of, any such Debt or Future Payables Transaction, no waiver of
default with respect to any such Debt or Future Payables Transaction is
currently in effect which has an expiration date prior to the maturity
of the relevant obligation, and to the actual knowledge of any Senior
Financial Officer no event or condition exists with respect to any such
Debt or Future Payables Transaction that would permit (or that with
notice or the lapse of time, or both, would permit) one or more Persons
to cause such Debt to become due and payable before its stated maturity
or before its regularly scheduled dates of payment or to cause such
Future Payables Transaction to be terminated prior to the scheduled
settlement or expiration thereof.
(b) Schedule 5.15(b) sets forth a complete and correct list of
all Consignment Arrangements of the Company and its Subsidiaries under
which there are any outstanding consignments of Precious Metals as of
March 31, 1997 (and specifying, as to each such Consignment
Arrangement, the amount and type of Precious Metals
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leased or consigned to the Company or any of its Subsidiaries). There
has been no Material change in such list since such date. Neither the
Company nor any Subsidiary is in default in the payment of any amount
payable in respect of any such Consignment Arrangement, no waiver of
default with respect to any such Consignment Arrangement is currently
in effect which has an expiration date prior to expiration of such
Consignment Arrangement, and to the actual knowledge of any Senior
Financial Officer no event or condition exists with respect to any such
Consignment Arrangement that would permit (or that with notice or the
lapse of time, or both, would permit) one or more Persons to cause such
Consignment Arrangement to be terminated prior to the scheduled
settlement or expiration thereof.
(c) Except as disclosed in Schedule 5.15(c), neither the
Company nor any Subsidiary has agreed or consented to cause or permit
in the future (upon the happening of a contingency or otherwise, except
any such contingency or other arrangement that is within its control)
any of its Property, whether now owned or hereafter acquired, to be
subject to a Lien not permitted by Section 10.7.
5.16 Foreign Assets Control Regulations, etc.
Neither the sale of the Notes by the Company hereunder nor its use of
the proceeds thereof will violate the Trading with the Enemy Act, as amended, or
any of the foreign assets control regulations of the United States Treasury
Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling
legislation or executive order relating thereto.
5.17 Status under Certain Statutes.
Neither the Company nor any Subsidiary is subject to regulation as an
"investment company" under the Investment Company Act of 1940, as amended, as a
"holding company" under the Public Utility Holding Company Act of 1935, as
amended, or as a "regulated utility" under the Federal Power Act, as amended or
is subject to regulation under the Transportation Acts (49 U.S.C.), as amended.
5.18 Environmental Matters.
Neither the Company nor any Subsidiary has actual knowledge of any
claim or has received any notice of any claim, and no proceeding has been
instituted raising any claim
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against the Company or any of its Subsidiaries or any of their respective real
Properties now or formerly owned, leased or operated by any of them or other
assets, alleging any damage to the environment or violation of any Environmental
Laws, except, in each case, as set forth on Schedule 5.18 or such as could not,
individually or in the aggregate, reasonably be expected to result in a Material
Adverse Effect. Except as otherwise disclosed to you in writing,
(a) no Responsible Officer has actual knowledge of any facts
which would give rise to any claim, public or private, of violation of
Environmental Laws or damage to the environment emanating from,
occurring on or in any way related to real Properties now or formerly
owned, leased or operated by any of them or to other assets or their
use, except, in each case, such as could not, individually or in the
aggregate, reasonably be expected to result in a Material Adverse
Effect;
(b) no Responsible Officer has actual knowledge that the
Company or any of its Subsidiaries has stored any Hazardous Materials
on real properties now or formerly owned, leased or operated by any of
them or disposed of any Hazardous Materials in a manner contrary to any
Environmental Laws in each case in any manner that could, individually
or in the aggregate, reasonably be expected to result in a Material
Adverse Effect; and
(c) no Responsible Officer has actual knowledge that any
building on any real properties now owned, leased or operated by the
Company or any of its Subsidiaries is not in compliance with applicable
Environmental Laws, except where failure to comply could not,
individually or in the aggregate, reasonably be expected to result in a
Material Adverse Effect.
All such violations of Environmental Laws, damage to the environment or
storage or disposal of Hazardous Materials would not, collectively, reasonably
be expected to result in a Material Adverse Effect.
6. REPRESENTATIONS OF THE PURCHASER.
6.1 Purchase for Investment.
You represent that you are purchasing the Notes for your own account or
for one or more separate accounts maintained
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by you or for the account of one or more pension or trust funds and not with a
view to the distribution thereof, provided that the disposition of your or their
Property shall at all times be within your or their control. You understand that
the Notes have not been registered under the Securities Act and may not be
resold except in compliance with applicable federal and state securities laws
and that the Company is not obligated to register the Notes.
6.2 Source of Funds.
You represent that at least one of the following statements is an
accurate representation as to each source of funds (a "Source") to be used by
you to pay the purchase price of the Notes to be purchased by you hereunder:
(a) the Source is an "insurance company general account" as
defined in Department of Labor Prohibited Transaction Exemption 95-60
(60 3FR 35925, July 12, 1995) and in respect thereof you represent that
there is no "employee benefit plan" (as defined in section 3(3) of
ERISA and section 4975(e)(1) of the Code, treating as a single plan all
plans maintained by the same employer or employee organization or
affiliate thereof) with respect to which the amount of the general
account reserves and liabilities of all contracts held by or on behalf
of such plan exceed ten percent (10%) of the total reserves and
liabilities of such general account (exclusive of separate account
liabilities) plus surplus, as set forth in the NAIC Annual Statement
filed with your state of domicile; or
(b) if you are an insurance company, the Source does not
include assets allocated to any separate account maintained by you in
which any employee benefit plan (or its related trust) has any
interest, other than a separate account that is maintained solely in
connection with your fixed contractual obligations under which the
amounts payable, or credited, to such plan and to any participant or
beneficiary of such plan (including any annuitant) are not affected in
any manner by the investment performance of the separate account; or
(c) the Source is either (i) an insurance company pooled
separate account, within the meaning of Prohibited Transaction
Exemption ("PTE") ▇▇-▇ (▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇), ▇▇ (▇▇) a bank
collective investment fund, within the meaning of PTE 91-38 (issued
July 12, 1991) and, except as you have disclosed to the Company in
writing pursuant
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to this paragraph (c), no employee benefit plan or group of plans
maintained by the same employer or employee organization beneficially
owns more than 10% of all assets allocated to such pooled separate
account or collective investment fund; or
(d) the Source constitutes assets of an "investment fund"
(within the meaning of Part V of the QPAM Exemption) managed by a
"qualified professional asset manager" or "QPAM" (within the meaning of
Part V of the QPAM Exemption), no employee benefit plan's assets that
are included in such investment fund, when combined with the assets of
all other employee benefit plans established or maintained by the same
employer or by an affiliate (within the meaning of Section V(c)(1) of
the QPAM Exemption) of such employer or by the same employee
organization and managed by such QPAM, exceed 20% of the total client
assets managed by such QPAM, the conditions of Part I(c) and (g) of the
QPAM Exemption are satisfied, neither the QPAM nor a person controlling
or controlled by the QPAM (applying the definition of "control" in
Section V(e) of the QPAM Exemption) owns a 5% or more interest in the
Company and
(i) the identity of such QPAM and
(ii) the names of all employee benefit plans whose
assets are included in such investment fund
have been disclosed to the Company in writing pursuant to this
paragraph (d); or
(e) the Source is a governmental plan; or
(f) the Source is one or more employee benefit plans, or a
separate account or trust fund comprised of one or more employee
benefit plans, each of which has been identified to the Company in
writing pursuant to this paragraph (f); or
(g) the Source does not include assets of any employee benefit
plan, other than a plan exempt from the coverage of ERISA.
As used in this Section 6.2, the terms "employee benefit plan", "governmental
plan" and "separate account" shall have the respective meanings assigned to such
terms in Section 3 of ERISA.
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6.3 Investor Representations.
You represent and warrant to the Company that:
(a) you are a "qualified institutional buyer" (as defined in
Rule 144A under the Securities Act) and have such knowledge and
experience in financial and business matters that you are capable of
evaluating the merits and risks of investing in the Notes;
(b) you are aware that the Notes have not been registered
under the Securities Act or the securities laws of any state, and that
the sale of each Note is predicated upon such sale being exempt from
registration as an exempt transaction under applicable federal and
state securities laws, and that no state or federal Governmental
Authorities have made any finding or determination relating to the
Notes, and that no state or federal Governmental Authority has or will
recommend or endorse the Notes; and
(c) you recognize that (i) there has been no public market for
the Notes, (ii) no public market for the Notes is anticipated or
likely, and (iii) transferability of the Notes is restricted in
accordance with the Securities Act and state securities laws.
7. INFORMATION AS TO COMPANY.
7.1 Financial and Business Information.
So long as any of the Notes are outstanding, the Company shall deliver
to each then holder of Notes that is an Institutional Investor:
(a) Quarterly Statements -- within 45 days after the end of
each quarterly fiscal period in each fiscal year of the Company (other
than the last quarterly fiscal period of each such fiscal year),
duplicate copies of,
(i) (A) a consolidated balance sheet of the Company
and the Restricted Subsidiaries as at the end of such quarter
and (B) a consolidated balance sheet of the Company and its
consolidated subsidiaries as at the end of such quarter, and
(ii) (A) consolidated statements of income, changes
in shareholders' equity and cash flows of
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the Company and the Restricted Subsidiaries for such quarter
and (in the case of the second and third quarters) for the
portion of the fiscal year ending with such quarter and (B)
consolidated statements of income, changes in shareholders'
equity and cash flows of the Company and its consolidated
Subsidiaries for such quarter and (in the case of the second
and third quarters) for the portion of the fiscal year ending
with such quarter,
setting forth in each case in comparative form the figures for the
corresponding periods in the previous fiscal year, all in reasonable
detail, prepared in accordance with GAAP applicable to quarterly
financial statements generally, and certified by a Senior Financial
Officer as fairly presenting, in all material respects, the
consolidated financial position of the companies being reported on and
their consolidated results of operations and cash flows, subject to
changes resulting from year-end adjustments, provided that delivery
within the time period specified above of copies of the Company's
Quarterly Report on Form 10-Q prepared in compliance with the
requirements therefor and filed with the Securities and Exchange
Commission shall be deemed to satisfy the requirements of Section
7.1(a)(i)(B) and Section 7.1(a)(ii)(B);
(b) Annual Statements -- within 90 days after the end of each
fiscal year of the Company, duplicate copies of,
(i) (A) a consolidated balance sheet of the Company
and the Restricted Subsidiaries as at the end of such year and
(B) a consolidated balance sheet of the Company and its
consolidated subsidiaries as at the end of such year, and
(ii) (A) consolidated statements of income, changes
in shareholders' equity and cash flows of the Company and the
Restricted Subsidiaries for such year and (B) consolidated
statements of income, changes in shareholders' equity and cash
flows of the Company and its consolidated subsidiaries for
such year,
setting forth in each case in comparative form the figures for the
previous fiscal year, all in reasonable detail, prepared in accordance
with GAAP, and accompanied by
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(A) an opinion thereon of independent
certified public accountants of recognized national
standing, which opinion shall state that such
financial statements present fairly, in all material
respects, the consolidated financial position of the
companies being reported upon and their consolidated
results of operations and cash flows and have been
prepared in conformity with GAAP, and that the
examination of such accountants in connection with
such financial statements has been made in accordance
with generally accepted auditing standards, and that
such audit provides a reasonable basis for such
opinion in the circumstances, and
(B) a certificate of such accountants
expressing their opinion as to whether the
computations by the Company show compliance with
Sections 10.2, 10.3, 10.4, 10.5, 10.6, 10.7, 10.8 and
10.10, and stating that, in connection with their
audit of the financial statements of the Company for
such fiscal year, nothing came to their attention of
a financial or accounting nature that caused them to
believe that the Company was not in compliance with
such terms, covenants, provisions or conditions (it
being understood that generally accepted auditing
standards require such accountants to report any
Default or Event of Default of which they obtain
knowledge, regardless of whether it arises as a
result of a breach of any such section),
provided that the delivery within the time period specified above of
the Company's Annual Report on Form 10-K for such fiscal year prepared
in accordance with the requirements therefor and filed with the
Securities and Exchange Commission, together with the accountant's
certificate described in clause (B) above, shall be deemed to satisfy
the requirements of Section 7.1(b)(i)(B) and Section 7.1(b)(ii)(B);
(c) SEC and Other Reports -- promptly upon their becoming
available, one copy of (i) each financial statement, report (including,
without limitation, the Company's annual report to shareholders, if
any, prepared pursuant to Rule 14a-3 under the Exchange
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Act), notice or proxy statement sent by the Company or any Subsidiary
to public Securities holders generally, and (ii) each regular or
periodic report, each registration statement (without exhibits except
as expressly requested by such holder), each prospectus and all
amendments thereto filed by the Company or any Subsidiary with the
Securities and Exchange Commission and each press release made
available generally by the Company or any Subsidiary to the public
concerning developments that are Material;
(d) Notice of Default or Event of Default -- promptly, and in
any event within five days after a Responsible Officer obtains actual
knowledge of the existence of any Default or Event of Default or that
any Person has given any notice or taken any action with respect to a
claimed default hereunder or that any Person has given any notice or
taken any action with respect to a claimed default of the type referred
to in Section 11(f), a written notice specifying the nature and period
of existence thereof and what action the Company is taking or proposes
to take with respect thereto;
(e) ERISA Matters -- promptly, and in any event within five
Business Days after a Responsible Officer has actual knowledge of any
of the following, a written notice setting forth the nature thereof and
the action, if any, that the Company or an ERISA Affiliate proposes to
take with respect thereto:
(i) with respect to any Plan, any reportable event,
as defined in section 4043(b) of ERISA and the regulations
thereunder, for which notice thereof has not been waived
pursuant to such regulations as in effect on the date of the
Closing except for any such reportable event or reportable
events which, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect; or
(ii) the taking by the PBGC of steps to institute, or
the threatening by the PBGC of the institution of, proceedings
under section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Plan, or the
receipt by the Company or any ERISA Affiliate of a notice from
a Multiemployer Plan that such action has been taken by the
PBGC with respect to such Multiemployer Plan except for any
such proceedings which, individually
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or in the aggregate, could not reasonably be expected to have
a Material Adverse Effect; or
(iii) any event, transaction or condition that could
result in the incurrence of any liability by the Company or
any ERISA Affiliate pursuant to Title I or IV of ERISA or the
penalty or excise tax provisions of the Code relating to
employee benefit plans, or in the imposition of any Lien on
any of the rights, Properties or assets of the Company or any
ERISA Affiliate pursuant to Title I or IV of ERISA or such
penalty or excise tax provisions, if such liability or Lien,
taken together with any other such liabilities or Liens then
existing, could reasonably be expected to have a Material
Adverse Effect;
(f) Notices from Governmental Authority -- promptly, and in
any event within 30 days of receipt thereof, copies of any notice to
the Company or any Subsidiary from any Federal or state Governmental
Authority relating to any order, ruling, statute or other law or
regulation that could reasonably be expected to have a Material Adverse
Effect;
(g) Actions, Proceedings -- promptly after a Responsible
Officer has actual knowledge of the commencement thereof, notice of any
action or proceeding relating to the Company or any Subsidiary in any
court or before any Governmental Authority or arbitration board or
tribunal as to which there is a reasonable possibility of an adverse
determination and that, if adversely determined, could reasonably be
expected to have a Material Adverse Effect; and
(h) Requested Information -- with reasonable promptness, such
other data and information relating to the business, operations,
affairs, financial condition 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, including, without
limitation, such information regarding the Company required to satisfy
the requirements of 17 C.F.R. Section 230.144A, as amended from time to
time, in connection with any contemplated permitted transfer of the
Notes.
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7.2 Officer's Certificate.
Each set of financial statements delivered to a holder of Notes
pursuant to Section 7.1(a) or Section 7.1(b) shall be accompanied by a
certificate of a Senior Financial Officer setting forth:
(a) Covenant Compliance -- (i) the information (including
detailed calculations) required in order to establish whether the
Company was in compliance with the requirements of Sections 10.2, 10.3,
10.4, 10.5, 10.6, 10.7, 10.8, and 10.10, during the quarterly or annual
period covered by the statements then being furnished (including with
respect to each such Section, where applicable, the calculations of the
maximum or minimum amount, ratio or percentage, as the case may be,
permissible under the terms of such Sections, and the calculation of
the amount, ratio or percentage then in existence), (ii) the aggregate
Fair Market Value of each type of Precious Metal held on consignment at
the Company's Fairfield, Connecticut facility (and any other facilities
where Precious Metals are so held) by the Company and the Restricted
Subsidiaries pursuant to Consignment Arrangements, (iii) the aggregate
number of ounces of each type of Precious Metal held on consignment at
such Fairfield, Connecticut facility (and any other facilities where
Precious Metals are so held) by the Company and the Restricted
Subsidiaries pursuant to Consignment Arrangements, (iv) the aggregate
Fair Market Value of each type of Owned Precious Metal Inventory of the
Company and the Restricted Subsidiaries and (v) the aggregate
outstanding obligations of the Company and Restricted Subsidiaries with
respect to Future Payables Transactions; and
(b) Event of Default -- a statement that such officer has
reviewed the relevant terms hereof and has made, or caused to be made,
under his or her supervision, a review of the transactions and
conditions of the Company and its Subsidiaries from the beginning of
the quarterly or annual period covered by the statements then being
furnished to the date of the certificate and that such review has not
disclosed the existence at the end of such period of any condition or
event that constitutes a Default or an Event of Default or, if any such
condition or event existed with respect to any of the covenants listed
in Section 7.2(a) during such period or exists at the end of such
period (including, without limitation, any such event
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or condition resulting from the failure of the Company or any
Subsidiary to comply with any Environmental Law), specifying the nature
and period of existence thereof and what action the Company shall have
taken or proposes to take with respect thereto.
7.3 Inspection.
So long as any Notes are outstanding, the Company shall permit the
representatives of each then holder of Notes that is an Institutional Investor:
(a) No Default -- if no Default or Event of Default then
exists, at the expense of such holder and upon reasonable prior notice
to the Company,
(i) to visit the principal executive office of the
Company, and to discuss the affairs, finances and accounts of
the Company and its Subsidiaries with the Company's officers,
and
(ii) with the consent of the Company (which consent
will not be unreasonably withheld) and in the presence of
Senior Financial Officers (if such presence is requested by
the Company), to discuss the affairs, finances and accounts of
the Company and its Subsidiaries with its independent public
accountants and to visit the other offices and Properties of
the Company and each Subsidiary,
all at such reasonable times during normal business hours and as often
as may be reasonably requested in writing and in a manner so as not to
interfere, to the extent reasonably possible, with the conduct of the
business of the Company and its Subsidiaries; and
(b) Default -- if a Default or Event of Default then exists,
at the expense of the Company, to visit and inspect any of the offices
or Properties of the Company or any Subsidiary, to examine all their
respective books of account, records, reports and other papers, to make
copies and extracts therefrom, and to discuss their respective affairs,
finances and accounts with their respective officers and, in the
presence of Senior Financial Officers (if such presence is requested by
the Company), its independent public accountants (and by this provision
the Company authorizes said accountants to discuss the affairs,
finances and accounts of the
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Company and its Subsidiaries), all at such times and as often as may be
requested.
8. PAYMENT OF THE NOTES.
8.1 Payment at Maturity.
The Company will pay all of the principal amount of the Notes remaining
outstanding, if any, on April 30, 2004.
8.2 Optional Prepayments with Make-Whole Amount.
The Company may, at its option, upon notice as provided below, prepay
at any time all, or from time to time any part of, the Notes (but if in part, in
an amount not less than $5,000,000 or such lesser amount as shall then be
outstanding), at 100% of the principal amount so prepaid, plus the Make-Whole
Amount determined for the prepayment date with respect to such principal amount.
The Company will give each holder of Notes written notice of each optional
prepayment under this Section 8.2 not less than 20 days and not more than 60
days prior to the date fixed for such prepayment. Each such notice shall specify
such prepayment date, the aggregate principal amount of the Notes to be prepaid
on such date, the principal amount of each Note held by such holder to be
prepaid (determined in accordance with Section 8.3), and the interest to be paid
on the prepayment date with respect to such principal amount being prepaid, and
the estimated Make-Whole Amount due in connection with such prepayment
(calculated as if the date of such notice were the date of the prepayment),
setting forth the details of such computation. Two Business Days prior to such
prepayment, the Company shall deliver to each holder of Notes a certificate of a
Senior Financial Officer specifying the calculation of such Make-Whole Amount as
of the specified prepayment date.
8.3 Allocation of Partial Prepayments.
In the case of each partial prepayment of the Notes pursuant to Section
8.2, the principal amount of the Notes to be prepaid shall be allocated among
all of the Notes at the time outstanding in proportion, as nearly as
practicable, to the respective unpaid principal amounts thereof not theretofore
called for prepayment.
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8.4 Maturity; Surrender, etc.
In the case of each prepayment of Notes pursuant to this Section 8, the
principal amount of each Note to be prepaid shall mature and become due and
payable on the date fixed for such prepayment, together with interest on such
principal amount accrued to such date and the applicable Make-Whole Amount, if
any. From and after such date, unless the Company shall fail to pay such
principal amount when so due and payable, together with the interest and
Make-Whole Amount, if any, as aforesaid, interest on such principal amount shall
cease to accrue. Any Note paid or prepaid in full shall cease to be considered
to be outstanding, shall be surrendered to the Company and cancelled and shall
not be reissued, and no Note shall be issued in lieu of any prepaid principal
amount of any Note.
8.5 No Other Optional Prepayments or Purchase of Notes.
The Company will not, and will not permit any Affiliate which it
controls to, prepay (whether directly or indirectly by purchase, redemption or
other acquisition) any of the outstanding Notes except (a) upon the payment or
prepayment of the Notes in accordance with the terms of this Section 8 or upon
the Notes becoming due pursuant to Section 12, or (b) pursuant to an offer to
purchase, at par or otherwise, made by the Company or any such Affiliate pro
rata to the holders of all Notes at the time outstanding upon the same terms and
conditions. Any such offer shall provide each holder with sufficient information
to enable it to make an informed decision with respect to such offer, and shall
remain open for at least 10 Business Days. The Company will promptly cancel all
Notes acquired by it or any Affiliate pursuant to any payment, prepayment or
purchase of Notes pursuant to any provision of this Agreement and no Notes may
be issued in substitution or exchange for any such Notes.
8.6 Make-Whole Amount.
The term "Make-Whole Amount" means, with respect to any Note, an amount
equal to the excess, if any, of the Discounted Value of the Remaining Scheduled
Payments with respect to the Called Principal of such Note over the amount of
such Called Principal, provided that the Make-Whole Amount may in no event be
less than zero. For the purposes of determining the Make-Whole Amount, the
following terms have the following meanings:
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"Called Principal" means, with respect to any Note, the
principal of such Note that is to be prepaid pursuant to Section 8.2 or
has become or is declared to be immediately due and payable pursuant to
Section 12.1, as the context requires.
"Discounted Value" means, with respect to the Called Principal
of any Note, the amount obtained by discounting all Remaining Scheduled
Payments with respect to such Called Principal from their respective
scheduled due dates to the Settlement Date with respect to such Called
Principal, in accordance with accepted financial practice and at a
discount factor (applied on the same periodic basis as that on which
interest on the Notes is payable) equal to the Reinvestment Yield with
respect to such Called Principal.
"Reinvestment Yield" means, with respect to the Called
Principal of any Note, 0.50% over the yield to maturity implied by (a)
the yields reported, as of 10:00 A.M. (New York City time) on the
second Business Day preceding the Settlement Date with respect to such
Called Principal, on the display designated as Page "UST" on the
Bloomberg Financial Market Service (or such other display as may
replace Page UST on the Bloomberg Financial Market Service) for
actively traded U.S. Treasury Securities having a remaining time to
maturity equal to the Remaining Average Life of such Called Principal
as of such Settlement Date, or (b) if such yields are not reported as
of such time or the yields reported as of such time are not
ascertainable, the Treasury Constant Maturity Series Yields reported,
for the latest day for which such yields have been so reported as of
the second Business Day preceding the Settlement Date with respect to
such Called Principal, in Federal Reserve Statistical Release H.15
(519) (or any comparable successor publication) for actively traded
U.S. Treasury Securities having a constant maturity equal to the
Remaining Average Life of such Called Principal as of such Settlement
Date. Such implied yield will be determined, if necessary, by (i)
converting U.S. Treasury ▇▇▇▇ quotations to bond-equivalent yields in
accordance with accepted financial practice and (ii) interpolating
linearly between (1) the actively traded U.S. Treasury Security with
the remaining time to maturity closest to and greater than the
Remaining Average Life and (2) the actively traded U.S. Treasury
Security with the remaining time to
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maturity closest to and less than the Remaining Average Life.
"Remaining Average Life" means, with respect to any Called
Principal, the number of years (calculated to the nearest one-twelfth
year) obtained by dividing (a) such Called Principal into (b) the sum
of the products obtained by multiplying (i) the principal component of
each Remaining Scheduled Payment with respect to such Called Principal
by (ii) the number of years (calculated to the nearest one-twelfth
year) that will elapse between the Settlement Date with respect to such
Called Principal and the scheduled maturity date of such Remaining
Scheduled Payment.
"Remaining Scheduled Payments" means, with respect to the
Called Principal of any Note, all payments of such Called Principal and
interest thereon that would be due after the Settlement Date with
respect to such Called Principal if no payment of such Called Principal
were made prior to its scheduled maturity date, provided that if such
Settlement Date is not a date on which interest payments are due to be
made under the terms of the Notes, then the amount of the next
succeeding scheduled interest payment will be reduced by the amount of
interest accrued to such Settlement Date and required to be paid on
such Settlement Date pursuant to Section 8.2 or 12.1.
"Settlement Date" means, with respect to the Called Principal
of any Note, the date on which such Called Principal is to be prepaid
pursuant to Section 8.2 or has become or is declared to be immediately
due and payable pursuant to Section 12.1, as the context requires.
9. AFFIRMATIVE COVENANTS.
The Company covenants that so long as any of the Notes are outstanding:
9.1 Compliance with Law.
The Company will and will cause each of its Subsidiaries to comply with
all laws, ordinances or governmental rules or regulations to which each of them
is subject, including, without limitation, Environmental Laws, and will obtain
and maintain in effect all licenses, certificates, permits, franchises and other
governmental authorizations necessary to the ownership of
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their respective Properties or to the conduct of their respective businesses, in
each case to the extent necessary to ensure that non-compliance with such laws,
ordinances or governmental rules or regulations or failures to obtain or
maintain in effect such licenses, certificates, permits, franchises and other
governmental authorizations could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
9.2 Insurance.
The Company will and will cause each of the Restricted Subsidiaries to
maintain, with financially sound and reputable insurers, insurance with respect
to their respective Properties and businesses against such casualties and
contingencies, of such types, on such terms and in such amounts (including
deductibles, co-insurance and self-insurance, if adequate reserves are
maintained with respect thereto) as is customary in the case of entities of
established reputations engaged in the same or a similar business and similarly
situated.
9.3 Maintenance of Properties.
The Company will and will cause each of the Restricted Subsidiaries to
maintain and keep, or cause to be maintained and kept, their respective
Properties in good repair, working order and condition (other than ordinary wear
and tear) except where the Company has concluded that the failure to so maintain
or keep any such Property could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
9.4 Payment of Taxes and Claims.
The Company will and will cause each of its Subsidiaries to file all
tax returns required to be filed in any jurisdiction and to pay and discharge
all taxes shown to be due and payable on such returns and all other taxes,
assessments, governmental charges, or levies imposed on them or any of their
Properties, assets, income or franchises, to the extent such taxes, assessments,
charges or levies have become due and payable and before they have become
delinquent and all claims for which sums have become due and payable and before
they have become delinquent that have or might become a Lien on Properties or
assets of the Company or any Subsidiary, provided that neither the Company nor
any Subsidiary need file any such return or pay any such tax, assessment,
governmental charge, levy or claim if (a) the amount,
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applicability or validity thereof is contested by the Company or such Subsidiary
on a timely basis in good faith and in appropriate proceedings, and the Company
or such Subsidiary has established adequate reserves therefor in accordance with
GAAP on the books of the Company or such Subsidiary or (b) the failure to file
any such return or the nonpayment of all such taxes, assessments, charges,
levies and claims in the aggregate could not reasonably be expected to have a
Material Adverse Effect.
9.5 Corporate Existence, etc.
Except in connection with a transaction permitted by Section 10.2(a),
the Company will at all times preserve and keep in full force and effect its
corporate existence. Except in connection with a transaction permitted by
Sections 10.2 and 10.3, the Company will at all times preserve and keep in full
force and effect the corporate existence of each of its Subsidiaries and all
rights and franchises of the Company and its Subsidiaries unless, in the good
faith judgment of the Company, the termination of or failure to preserve and
keep in full force and effect such corporate existence, right or franchise could
not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
10. NEGATIVE COVENANTS.
The Company covenants that so long as any of the Notes are outstanding:
10.1 Transactions with Affiliates.
The Company will not, and will not permit any Restricted Subsidiary to,
enter into directly or indirectly any 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 and the Restricted Subsidiaries, taken as a whole, than would be
obtainable in a comparable arm's-length transaction with a Person not an
Affiliate; provided, that this Section 10.1 shall not apply to the pension
plan-related services provided to the Company and the Restricted Subsidiaries by
the Affiliates identified in Schedule 5.4 hereto so long as there is no
significant change subsequent to the date of Closing, which is
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adverse to the Company or any Restricted Subsidiary, in the terms and conditions
pursuant to which such services are provided.
10.2 Merger, Consolidation, etc.
(a) The Company. The Company will not consolidate with or
merge with any other corporation or, except as permitted by Section
10.3, convey, transfer or lease substantially all of its assets in a
single transaction or series of transactions to any Person; provided
that the foregoing restriction does not apply to the consolidation or
merger of the Company with, or the conveyance, transfer or lease of
substantially all of the assets of the Company in a single transaction
or series of transactions to, any Person so long as:
(i) the successor formed by such consolidation or the
survivor of such merger or the Person that acquires by
conveyance, transfer or lease substantially all of the assets
of the Company as an entirety, as the case may be (the
"Successor Corporation"), shall be a solvent corporation
organized and existing under the laws of the United States of
America, any State thereof or the District of Columbia;
(ii) if the Company is not the Successor Corporation,
such corporation shall have executed and delivered to each
holder of Notes its assumption, satisfactory in form and
substance to the Required Holders, of the due and punctual
performance and observance of each covenant and condition of
this Agreement and the Notes, and the Company or the Successor
Corporation shall have caused to be delivered to each holder
of Notes an opinion of nationally recognized independent
counsel, or other independent counsel reasonably satisfactory
to the Required Holders, to the effect that all agreements or
instruments effecting such assumption are enforceable in
accordance with their respective terms and comply with the
terms hereof (it being understood that such opinion may
contain customary exceptions, qualifications and assumptions,
and that the General Counsel of the Company may give the
necessary opinions with respect to the matters addressed by
the opinion delivered on the date of
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Closing in the form attached hereto as Exhibit 4.4(a)(ii));
and
(iii) immediately after giving effect to such
transaction:
(A) no Default or Event of Default exists or
would exist, and
(B) the Successor Corporation would be
permitted by the provisions of Section 10.5 to incur
at least $1.00 of additional Debt owing to a Person
other than a Restricted Subsidiary.
Any such conveyance or transfer, but not any such lease, of
substantially all of the assets of the Company shall have the effect of
releasing the Company from its liability under this Agreement or the
Notes, except to the extent set forth therein.
(b) Restricted Subsidiaries. The Company will not permit any
Restricted Subsidiary to consolidate with or merge with any other
corporation or convey, transfer or lease substantially all of its
assets in a single transaction or series of transactions to any Person
except that a Restricted Subsidiary may:
(i) consolidate with or merge with, or convey,
transfer or lease substantially all of its assets in a single
transaction or series of transactions to, a Restricted
Subsidiary or the Company,
(ii) consolidate with or merge with any Person if,
immediately after giving effect to such transaction, (A) the
Person surviving such consolidation or merger is a Restricted
Subsidiary, (B) no Default or Event of Default exists or would
exist, (C) the Company would be permitted by the provisions of
Section 10.5 to incur at least $1.00 of additional Debt owing
to a Person other than a Restricted Subsidiary and (D) such
Restricted Subsidiary would be permitted by the provisions of
Section 10.6 to incur at least $1.00 of additional Debt owing
to a Person other than the Company or another Restricted
Subsidiary, and
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(iii) consolidate with or merge with, or convey,
transfer or lease its assets in a single transaction or a
series of transactions to, any Person, in each case in
compliance with the provisions of Section 10.3.
10.3 Sale of Assets, Etc.
Except as permitted under Section 10.2, the Company will not, and will
not permit any of the Restricted Subsidiaries to, make any Asset Disposition
unless:
(a) in the good faith opinion of the Company, the Asset
Disposition is in exchange for consideration having a Fair Market Value
at least equal to that of the Property exchanged, as determined by the
Company in good faith;
(b) immediately after giving effect to the Asset Disposition,
(i) no Default or Event of Default would exist, and
(ii) the Company would be permitted by the provisions
of Section 10.5 to incur at least $1.00 of additional Debt
owing to a Person other than a Restricted Subsidiary; and
(c) immediately after giving effect to the Asset Disposition,
the aggregate Disposition Value of the Property subject to such Asset
Disposition, and all other Property that was the subject of any Asset
Disposition occurring in the period of 365 days ending on and including
the date of such Asset Disposition, would not exceed 50% of
Consolidated Adjusted Cash Flow for the Applicable Four Quarter Period;
provided, however, that
(i) if the Company gives prompt written notice (a
"Reinvestment Notice") to all holders of Notes that, within
180 days before or after any Transfer, an amount equal to all
or any portion of the Net Proceeds Amount arising therefrom
was, or is intended to be, applied by the Company or such
Restricted Subsidiary to a Debt Prepayment Application or a
Property Reinvestment Application, then such Transfer (to the
extent of the amounts actually so applied within such period)
shall be
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deemed not to be an Asset Disposition as of any date for
purposes of determining compliance by the Company and the
Restricted Subsidiaries with this paragraph (c),
(ii) the time period set forth in the preceding
clause (i) may be computed, at the Company's option, with
respect to the date that the Company or any Restricted
Subsidiary receives cash (instead of the date of such
Transfer) in respect of (A) up to $5,000,000 in the aggregate
for all Net Proceeds Amounts arising from the Transfer of
excess buildings and land from sold operations and (B) up to
10% of any Net Proceeds Amount to the extent such amount is
required to be held in escrow pursuant to customary
"hold-back" provisions set forth in any document relating to
the Transfer giving rise to such Net Proceeds Amount, and
(iii) immediately after giving effect to such Asset
Disposition, the Unapplied Portions of the Net Proceeds
Amounts for all Asset Dispositions shall not exceed 30% of the
Company's consolidated assets.
The "Unapplied Portion of the Net Proceeds Amount," with respect to any
Asset Disposition as to which the Company has given a Reinvestment Notice,
means, at any time, the Disposition Value of the Property subject to such Asset
Disposition multiplied by a fraction of which the numerator is the portion of
the Net Proceeds Amount subject to such Reinvestment Notice which has not been
applied to a Property Reinvestment Application or a Debt Prepayment Application
at such time and the denominator of which is the entire amount of the portion of
the Net Proceeds Amount subject to such Reinvestment Notice.
If the Company shall fail to apply an amount equal to the entire amount
of the Net Proceeds Amount subject to the Reinvestment Notice in respect of such
Transfer, within such 360-day period, to a Property Reinvestment Application or
a Debt Prepayment Application, the Company shall be deemed to have consummated
an Asset Disposition to which clause (i) of Section 10.3(c) does not apply in an
amount equal to the Unapplied Portion of the Net Proceeds Amount in respect of
such Asset Disposition. Such deemed Asset Disposition shall be deemed to have
occurred on the date of the original Asset Disposition and the Company's
compliance with this Section 10.3 shall be determined, as of such date, as if
such
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Unapplied Portion of the Net Proceeds Amount had not been included in the
Reinvestment Notice.
If any Restricted Subsidiary shall cease to be a Restricted Subsidiary
as a result of any Asset Disposition consisting of Subsidiary Stock, all Debt
owing by the Company or any other Restricted Subsidiary to such Restricted
Subsidiary after giving effect to such Asset Disposition and to the transactions
entered into in connection therewith (and any Liens securing such Debt) shall be
deemed for all purposes of this Agreement to have been incurred by the Company
or such other Restricted Subsidiary immediately after giving effect to such
Asset Disposition.
10.4 Fixed Charges Coverage Ratio.
The Company will not, for any period of four complete consecutive
fiscal quarters of the Company, permit the ratio of
(a) Consolidated Adjusted Cash Flow plus Consolidated Rentals
to
(b) Consolidated Interest Expense plus Consolidated Rentals,
in each case for such period, to be less than 2.0 to 1.0.
10.5 Company Debt Incurrence.
The Company will not at any time, directly or indirectly, create,
incur, assume, guarantee, or otherwise become directly or indirectly liable with
respect to, any Debt (except for inter-company payables arising from operation
of the Company's cash management system in the ordinary course of its business),
unless on the date the Company becomes liable with respect to any such Debt and
immediately after giving effect thereto, the application of the proceeds thereof
and the concurrent retirement of any other Debt,
(a) no payment Default, no Default with respect to the
covenant set forth in Section 10.8, and no Event of Default exists, and
(b) Consolidated Adjusted Debt on such date does not exceed
350% of Consolidated Adjusted Cash Flow for the Applicable Four Quarter
Period.
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For the purposes of this Section 10.5, any Person extending, renewing or
refunding any Debt shall be deemed to have incurred such Debt at the time of
such extension, renewal or refunding.
10.6 Restricted Subsidiary Debt Incurrence.
The Company will not permit any Restricted Subsidiary to, at any time,
directly or indirectly, create, incur, assume, guarantee, or otherwise become
directly or indirectly liable with respect to, any Debt, except Debt owing to
the Company or another Restricted Subsidiary, unless on the date such Restricted
Subsidiary becomes liable with respect to any such Debt and immediately after
giving effect thereto, the application of the proceeds thereof and the
concurrent retirement of any other Debt,
(a) no payment Default, no Default with respect to the
covenant set forth in Section 10.8, and no Event of Default exists,
(b) Consolidated Adjusted Debt on such date does not exceed
350% of Consolidated Adjusted Cash Flow for the Applicable Four Quarter
Period, and
(c) Priority Debt does not exceed the lesser of (i) 20% of
Consolidated Net Worth determined as of the end of the Applicable Four
Quarter Period, or (ii) 50% of Consolidated Adjusted Cash Flow for the
Applicable Four Quarter Period.
10.7 Liens.
(a) Negative Pledge. The Company will not, and will not permit
any of the Restricted Subsidiaries to, directly or indirectly create,
incur, assume or permit to exist (upon the happening of a contingency
or otherwise) any Lien on or with respect to any Property or asset
(including, without limitation, any document or instrument in respect
of goods or accounts receivable) of the Company or any such Restricted
Subsidiary, whether now owned or held or hereafter acquired, or any
income or profits therefrom, except:
(i) Liens for taxes, assessments, governmental
charges, levies or claims the payment of which is not at the
time required by Section 9.4;
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(ii) statutory Liens of landlords and Liens of
carriers, warehousemen, mechanics, materialmen and other
similar Liens, in each case, incurred in the ordinary course
of business for sums not yet due or the payment of which is
not at the time required by Section 9.4;
(iii) Liens (other than any Lien imposed by ERISA)
incurred or deposits made in the ordinary course of business
(A) (I) in connection with workers'
compensation, unemployment insurance and other types
of social security or retirement benefits or (II) to
secure (or to obtain letters of credit that secure)
the performance of tenders, statutory obligations,
surety bonds, appeal bonds, bids, leases (other than
Capital Leases), performance bonds, purchase,
construction or sales contracts and other similar
obligations, in each case not incurred or made in
connection with the borrowing of money, the obtaining
of advances or credit or the payment of the deferred
purchase price of Property, or
(B) in connection with margin calls made in
respect of Future Payables Transactions;
(iv) any attachment or judgment Lien, unless the
judgment it secures (A) shall not, within 30 days after the
entry thereof, have been discharged or execution thereof
stayed pending appeal, or shall not have been discharged
within 30 days after the expiration of any such stay or (B)
exceeds $5,000,000 (less the amount represented by such
attachment or judgment which is covered by insurance so long
as the relevant insurer has not rejected coverage with respect
thereto in writing);
(v) consignments to or from the Company or any
Restricted Subsidiary (including, without limitation, Liens on
Property subject to such consignments and the proceeds
thereof), leases or subleases and licenses and sublicenses
granted to others, easements, rights-of-way, restrictions and
other similar charges or encumbrances, in each case incidental
to, and not interfering with, the
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ordinary conduct of the business of the Company or any of the
Restricted Subsidiaries;
(vi) Liens on Property or assets of the Company or
any of the Restricted Subsidiaries securing Debt owing to the
Company or to any of the Restricted Subsidiaries;
(vii) Liens existing on the date of this Agreement
and securing the Debt of the Company and the Restricted
Subsidiaries, provided that any such Debt which is in excess
of $5,000,000 is referred to in Schedule 5.15 and the
aggregate amount of Debt so secured and not listed on such
Schedule does not exceed $5,000,000;
(viii) any Lien (including, without limitation, any
Capital Lease) created to secure all or any part of the
purchase price, or to secure Debt incurred or assumed to pay
all or any part of the purchase price or cost of construction,
of Property (or any improvement thereon) acquired or
constructed by the Company or a Restricted Subsidiary after
the date of the Closing, provided that
(A) any such Lien shall extend solely to the
item or items of such Property (or improvement
thereon) so acquired or constructed and other
Property (or improvement thereon) which is an
improvement to or is acquired for specific use in
connection with such acquired or constructed Property
(or improvement thereon) or which is real property
being improved by such acquired or constructed
Property (or improvement thereon) and proceeds of any
of the foregoing,
(B) unless such Debt is non-recourse, the
principal amount of the Debt secured by any such Lien
shall at no time exceed an amount equal to 100% of
the lesser of (I) the cost to the Company or such
Restricted Subsidiary of the Property (or improvement
thereon) so acquired or constructed and (II) the Fair
Market Value (as determined in good faith by the
Company) of such Property (or improvement thereon) at
the time of such acquisition or construction, and
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(C) any such Lien shall be created
contemporaneously with, or within 180 days after, the
acquisition or construction of such Property (it
being understood that, with respect to the
improvement of previously acquired Property, such
period shall be determined with reference to the
completion of such improvement and not the date of
acquisition of such Property);
(ix) any Lien existing on Property of a Person
immediately prior to its being consolidated with or merged
into the Company or a Restricted Subsidiary or its becoming a
Restricted Subsidiary, or any Lien existing on any Property
acquired by the Company or any Restricted Subsidiary at the
time such Property is so acquired (whether or not the Debt
secured thereby shall have been assumed), provided that (A) no
such Lien shall have been created or assumed by such Person in
contemplation of such consolidation or merger or such Person's
becoming a Restricted Subsidiary or such acquisition of
Property, and (B) each such Lien shall extend solely to the
item or items of Property so acquired and, if required by the
terms of the instrument originally creating such Lien, other
Property which is an improvement to or is acquired for
specific use in connection with such acquired Property;
(x) any Lien renewing, extending or refunding any
Lien permitted by paragraphs (vii) through (ix), inclusive, of
this Section 10.7(a), provided that (A) the principal amount
of Debt secured by such Lien immediately prior to such
extension, renewal or refunding is not increased (except to
the extent that any increase in principal amount represents
capitalization of the transaction costs incurred in connection
with such renewal, extension or refunding, so long as the
aggregate amount of all such costs so capitalized (and not
amortized) in connection with all such renewals, extensions
and refundings does not exceed $2,500,000 immediately after
giving effect to the renewal, extension or refunding of such
secured Debt), (B) such Lien is not extended to any other
Property, and (C) immediately after such extension, renewal or
refunding no payment Default, no Default with respect to the
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covenant set forth in Section 10.8 and no Event of Default
would exist; or
(xi) other Liens not otherwise permitted by
paragraphs (i) through (x), inclusive, of this Section
10.7(a), granted contemporaneously with the incurrence of Debt
by the Company or any Restricted Subsidiary, provided that
immediately after giving effect to the creation of any such
Lien, Priority Debt does not exceed the lesser of (A) 20% of
Consolidated Net Worth determined as of the end of the
Applicable Four Quarter Period, or (B) 50% of Consolidated
Adjusted Cash Flow for the Applicable Four Quarter Period.
(b) Equitable and Ratable Lien. In case any Property shall be
subjected to a Lien not permitted by Section 10.7(a), the Company will
forthwith make or cause to be made, to the fullest extent permitted by
applicable law, provision whereby its obligations under the Notes, this
Agreement and the Other Agreements will be secured equally and ratably
with all other obligations secured by such Lien pursuant to such
agreements and instruments as shall be approved by the Required Holders
in their reasonable discretion, and the Company will cause to be
delivered to each holder of Notes an opinion of independent counsel
(selected by the Company and reasonably satisfactory to the Required
Holders) to the effect that such agreements and instruments are
enforceable in accordance with their terms (subject to customary
exceptions, assumptions and qualifications). Regardless of whether the
Company complies with the provisions of the immediately preceding
sentence, in case any Property shall be subjected to a Lien not
permitted by Section 10.7(a), the obligations under the Notes, this
Agreement and the Other Agreements shall have the benefit, to the
fullest extent that, and with such priority as, the holders of Notes
may be entitled under applicable law, of an equitable Lien on such
Property securing such obligations. A violation of Section 10.7(a) will
constitute an Event of Default, whether or not provision is made for an
equal and ratable Lien pursuant to this Section 10.7(b).
10.8 Consolidated Net Worth.
The Company will not, at any time, permit Consolidated Net Worth to be
less than the sum of
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(a) $80,000,000, plus
(b) the sum of the Fiscal Quarter Net Worth Increase Amounts
for all fiscal quarters of the Company ended after December 31, 1996.
"Fiscal Quarter Net Worth Increase Amount" means, for any fiscal quarter of the
Company ended after December 31, 1996, the greater of (a) 50% of Consolidated
Net Income for such fiscal quarter and (b) $0.
10.9 Line of Business.
The Company will not, and will not permit any of the Restricted
Subsidiaries to, engage in any business other than any business conducted on the
date hereof, the products manufacturing business and any business closely
related to either of the foregoing if, as a result, the general nature of the
business in which the Company and the Restricted Subsidiaries, taken as a whole,
would then be engaged would be substantially changed from the business conducted
by them on the date hereof, the products manufacturing business and any business
closely related to either of the foregoing.
10.10 Sale-and-Leasebacks.
The Company will not, and will not permit any Restricted Subsidiary to,
enter into any Sale-and-Leaseback Transaction unless,
(a) immediately after giving effect to such Sale-and-Leaseback
Transaction and the application of the proceeds thereof, Priority Debt
does not exceed the lesser of (i) 20% of Consolidated Net Worth
determined as of the end of the Applicable Four Quarter Period, or (ii)
50% of Consolidated Adjusted Cash Flow for the Applicable Four Quarter
Period, or
(b) the Company, in accordance with and pursuant to Section
10.3(c), promptly gives a Reinvestment Notice to all holders of Notes
that, within 180 days before or after the Transfer of Property in such
Sale-and-Leaseback Transaction, the Company applied, or will apply, an
amount equal to the Net Proceeds Amount arising therefrom to a Debt
Prepayment Application or a Property Reinvestment Application.
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The Company's failure to apply the Net Proceeds Amount in respect of such
Sale-and-Leaseback Transaction in accordance with the Reinvestment Notice and
within such 360-day period shall have the effect set forth in the penultimate
paragraph of Section 10.3.
10.11 Designation of Subsidiaries.
(a) Right of Designation. Subject to satisfaction of the
requirements of Section 10.11(c), the Company shall have the right to
designate each Subsidiary acquired after the date of the Closing as a
Restricted Subsidiary or an Unrestricted Subsidiary by delivering to
each holder of Notes a writing, signed by a Senior Financial Officer,
so designating such Subsidiary within 30 days of the acquisition
thereof by the Company or any Restricted Subsidiary. Any such
Subsidiary not so designated within such 30-day period shall be deemed,
on and after such date and without any further action by the Company or
any holder of Notes (but subject to Section 10.11(b)), to have been
designated by the Company as a Restricted Subsidiary. Each Subsidiary
designated as a Restricted Subsidiary in Schedule 5.4 shall be a
Restricted Subsidiary for all purposes herein until such time as such
Restricted Subsidiary is redesignated pursuant to Section 10.11(b) and
all other Subsidiaries, if any, listed in such Schedule shall, subject
to Section 10.11(b), be Unrestricted Subsidiaries on and after the
Closing.
(b) Right of Redesignation. Subject to the satisfaction of the
requirements of Section 10.11(c), the Company may at any time designate
(i) any Unrestricted Subsidiary as a Restricted
Subsidiary, or
(ii) any Restricted Subsidiary as an Unrestricted
Subsidiary,
by delivering a written notice to such effect, signed by a Senior
Financial Officer, to each holder of Notes.
(c) Designation Criteria.
(i) No Subsidiary shall at any time after the Closing
be designated as a Restricted Subsidiary unless:
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(A) immediately after giving effect to such
designation, and assuming that all obligations and
liabilities of such Subsidiary being so designated
were incurred contemporaneously with such
designation,
(1) no Default or Event of Default
exists or would exist,
(2) the Company would be permitted
by the provisions of Section 10.5 to incur
at least $1.00 of additional Debt owing to a
Person other than a Restricted Subsidiary,
and
(3) no Unrestricted Subsidiary,
directly or indirectly, owns or holds any
Debt or Capital Stock of such Subsidiary;
and
(B) such Subsidiary shall not previously
have been designated (including, without limitation,
deemed designation pursuant to Section 10.11(a))
pursuant to this Section 10.11 more than twice.
Any Person designated a Restricted Subsidiary hereunder shall
be deemed to have incurred all of its then outstanding Debt at
the time of such designation.
(ii) No Subsidiary shall at any time after the
Closing Date be designated as an Unrestricted Subsidiary
unless:
(A) immediately after giving effect to such
designation,
(1) no Default or Event of Default
exists or would exist, and
(2) such Subsidiary does not,
directly or indirectly, own or hold any Debt
or Capital Stock of the Company or any
Restricted Subsidiary; and
(B) such Subsidiary shall not previously
have been designated (including, without
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limitation, deemed designation pursuant to Section
10.11(a)) pursuant to this Section 10.11 more than
twice.
(iii) Notwithstanding anything in this paragraph (c)
to the contrary, any Person which shall become a Subsidiary at
any time when a Default or an Event of Default shall exist
shall be an Unrestricted Subsidiary.
(d) Effectiveness. Other than as set forth in the last two
sentences of Section 10.11(a), any designation under this Section 10.11
that satisfies all of the conditions set forth in this Section 10.11
shall become effective on the day that notice thereof shall have been
sent by the Company to each holder of Notes or as of such subsequent
date as may be set forth in such notice.
10.12 Precious Metals Transactions.
The Company will not, and will not permit any Restricted Subsidiary to,
enter into any transaction with respect to Precious Metals for speculative or
other purposes not directly related to the acquisition of Precious Metals for
incorporation in the products of the Company or any Restricted Subsidiary, the
reduction of its inventory of Precious Metals, hedging in connection with any
such acquisition or reduction, Future Payables Transactions and any transactions
incidental to, and in furtherance of, the foregoing activities.
11. EVENTS OF DEFAULT.
An "Event of Default" shall exist if any of the following conditions or
events shall occur and be continuing:
(a) the Company defaults in the payment of any principal or
Make-Whole Amount, if any, on any Note when the same becomes due and
payable, whether at maturity or at a date fixed for prepayment or by
declaration or otherwise; or
(b) the Company defaults in the payment of any interest on any
Note for more than five Business Days after the same becomes due and
payable; or
(c) the Company defaults in the performance of or compliance
with any term contained in
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(i) Section 10 (other than Section 10.8) or Section
7.1(d), or
(ii) Section 10.8 and such default is not remedied
within 3 Business Days after the earlier of (A) a Responsible
Officer obtaining actual knowledge of such default and (B) the
Company receiving written notice of such default from any
holder of a Note (any such written notice to be identified as
a "notice of default" and to refer specifically to this
paragraph (c)(ii) of Section 11);
(d) the Company defaults in the performance of or compliance
with any term contained herein (other than those referred to in
paragraphs (a), (b) and (c) of this Section 11), and such default is
not remedied within 30 days after the earlier of (i) a Responsible
Officer obtaining actual knowledge of such default and (ii) the Company
receiving written notice of such default from any holder of a Note (any
such written notice to be identified as a "notice of default" and to
refer specifically to this paragraph (d) of Section 11); or
(e) the representation and warranty set forth in Section 5.3
proves to have been false or incorrect, or any representation or
warranty made in writing by the Company or by any officer of the
Company in this Agreement or in any writing furnished by the Company
pursuant hereto proves to have been false or incorrect in any material
respect on the date as of which made; or
(f) (i) the Company or any Restricted Subsidiary is in default
(as principal or as guarantor or other surety) in the payment
of any principal of or premium or make-whole amount or
interest on any Debt (other than Debt under this Agreement and
the Notes) beyond any period of grace provided with respect
thereto, that individually or together with such other Debt as
to which any such failure exists has an aggregate outstanding
principal amount of at least $5,000,000, or
(ii) the Company or any Restricted Subsidiary is in
default in the performance of or compliance with any term of
any evidence of any Debt (other than Debt under this Agreement
and the Notes), that individually or together with such other
Debt as to which any such failure exists has an aggregate
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outstanding principal amount of at least $5,000,000, or of any
mortgage, indenture or other agreement relating thereto or any
other condition exists, and as a consequence of such default
or condition such Debt has become, or has been declared, due
and payable before its stated maturity or before its regularly
scheduled dates of payment, or
(iii) as a consequence of the occurrence or
continuation of any event or condition, the Company or any
Restricted Subsidiary has become obligated to purchase or
repay Debt (other than Debt under this Agreement and the
Notes) before its regular maturity or before its regularly
scheduled dates of payment in an aggregate outstanding
principal amount of at least $5,000,000, provided, however, no
Event of Default shall exist under this clause (iii) if such
event or condition is
(A) the right of the holder of Debt to
convert such Debt into equity interests,
(B) Debt secured by Property becoming due
upon the transfer of such Property by operation of a
due-on-sale or similar clause, or if, simultaneously
with the purchase or repayment of any such Debt, the
Company offers to purchase Notes from each holder of
Notes (in compliance with Section 8.5), or prepays
pursuant to Section 8.2, a principal amount of the
Notes which bears the same relation to the principal
amount of Notes outstanding immediately prior to the
purchase or prepayment thereof as the principal
amount of such Debt so purchased or prepaid bears to
the principal amount of such Debt outstanding
immediately prior to the purchase or prepayment
thereof, or
(C) the Company is required to repay any
over-advance on any revolving credit facility so long
as no other payment default or event of default
exists at such time under the agreement governing
such revolving credit facility, or
(g) the Company or any Material Restricted Subsidiary (i) is
generally not paying, or admits in writing its inability to pay, its
debts as they become due, (ii) files,
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or consents by answer or otherwise to the filing against it of, a
petition for relief or reorganization or arrangement or any other
petition in bankruptcy, for liquidation or to take advantage of any
bankruptcy, insolvency, reorganization, moratorium or other similar law
of any jurisdiction, (iii) makes an assignment for the benefit of its
creditors generally, (iv) consents to the appointment of a custodian,
receiver, trustee or other officer with similar powers with respect to
it or with respect to all or substantially all of its Property, (v) is
adjudicated as insolvent or, except as permitted by Section 10.2, to be
liquidated, or (vi) takes corporate action for the purpose of any of
the foregoing; or
(h) a court or governmental authority of competent
jurisdiction enters an order appointing, without consent by the Company
or any Material Restricted Subsidiary, a custodian, receiver, trustee
or other officer with similar powers with respect to the Company or any
Material Restricted Subsidiary or with respect to all or substantially
all of its Property, or constituting an order for relief or approving a
petition for relief or reorganization or any other petition in
bankruptcy or for liquidation or to take advantage of any bankruptcy or
insolvency law of any jurisdiction, or ordering the dissolution,
winding-up or liquidation of the Company or any Material Restricted
Subsidiary, or any such petition shall be filed against the Company or
any Material Restricted Subsidiary and, in any such case, such petition
or order shall not be dismissed within 60 days; or
(i) a final judgment or judgments for the payment of money
aggregating in excess of $5,000,000 (less the portion of such judgments
which is covered by insurance so long as the relevant insurer has not
rejected coverage with respect thereto in writing) are rendered against
one or more of the Company and the Restricted Subsidiaries and which
judgments are not, within 60 days after entry thereof, bonded,
discharged or stayed pending appeal, or are not discharged within 60
days after the expiration of such stay; or
(j) if (i) any Plan shall fail to satisfy the minimum funding
standards of ERISA or the Code for any plan year or part
thereof or a waiver of such standards or extension of any
amortization period is sought or granted under section 412 of
the Code,
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(ii) a notice of intent to terminate any Plan shall
have been filed with the PBGC or the PBGC shall have
instituted proceedings under ERISA section 4042 to terminate
or appoint a trustee to administer any Plan or the PBGC shall
have notified the Company or any ERISA Affiliate that a Plan
will become a subject of any such proceedings,
(iii) the aggregate "amount of unfunded benefit
liabilities" (within the meaning of section 4001(a)(18) of
ERISA) under all Plans, determined in accordance with Title IV
of ERISA, shall exceed $5,000,000,
(iv) the Company or any ERISA Affiliate shall have
incurred or is reasonably expected to incur any liability
pursuant to Title I or IV of ERISA or the penalty or excise
tax provisions of the Code relating to employee benefit plans,
(v) the Company or any ERISA Affiliate withdraws from
any Multiemployer Plan, or
(vi) the Company or any Subsidiary establishes or
amends any employee welfare benefit plan that provides
post-employment welfare benefits in a manner that would
increase the liability of the Company or any Subsidiary
thereunder;
and any such event or events described in clauses (i) through (vi)
above, either individually or together with any other such event or
events, could reasonably be expected to have a Material Adverse Effect.
As used in Section 11(j), the terms "employee benefit plan" and "employee
welfare benefit plan" shall have the respective meanings assigned to such terms
in section 3 of ERISA.
12. REMEDIES ON DEFAULT, ETC.
12.1 Acceleration.
(a) If an Event of Default described in paragraph (g) or
paragraph (h) of Section 11 (other than an Event of Default described
in clause (i) of paragraph (g) or described in clause (vi) of paragraph
(g) by virtue of the fact that such clause encompasses clause (i) of
paragraph (g)) has occurred, all the Notes then
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outstanding shall automatically become immediately due and payable.
(b) If any other Event of Default has occurred and is
continuing (except an Event of Default described in paragraph (a) or
paragraph (b) of Section 11), any holder or holders of more than 50% in
principal amount of the Notes at the time outstanding may at any time
at its or their option, by notice or notices to the Company, declare
all the Notes then outstanding to be immediately due and payable.
(c) If any Event of Default described in paragraph (a) or (b)
of Section 11 has occurred and is continuing,
(i) any holder or holders of Notes at the time
outstanding affected by such Event of Default may at any time,
at its or their option, by notice or notices to the Company,
declare all the Notes held by it or them to be immediately due
and payable, and
(ii) any holder or holders of more than 25% in
principal amount of the Notes at the time outstanding may at
any time at its or their option, by notice or notices to the
Company, declare all the Notes then outstanding to be
immediately due and payable.
Upon any Notes becoming due and payable under this Section 12.1,
whether automatically or by declaration, such Notes will forthwith mature and
the entire unpaid principal amount of such Notes, plus (x) all accrued and
unpaid interest thereon and (y) the Make-Whole Amount in respect of such
principal amount (to the full extent permitted by applicable law, determined as
of the date the Notes have become so due and payable), shall all be immediately
due and payable, in each and every case without presentment, demand, protest or
further notice, all of which are hereby waived. The Company acknowledges, and
the parties hereto agree, that each holder of a Note has the right to maintain
its investment in the Notes free from repayment by the Company (except as herein
specifically provided for), and that the provision for payment of a Make-Whole
Amount by the Company in the event that the Notes are prepaid or are accelerated
as a result of an Event of Default is intended to provide compensation for the
deprivation of such right under such circumstances.
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12.2 Other Remedies.
If any Default or Event of Default has occurred and is continuing, and
irrespective of whether any Notes have become or have been declared immediately
due and payable under Section 12.1, the holder of any Note at the time
outstanding may proceed to protect and enforce the rights of such holder by an
action at law, suit in equity or other appropriate proceeding, whether for the
specific performance of any agreement contained herein or in any Note, or for an
injunction against a violation of any of the terms hereof or thereof, or in aid
of the exercise of any power granted hereby or thereby or by law or otherwise.
12.3 Rescission.
At any time after any Notes have been declared due and payable pursuant
to paragraph (b) of Section 12.1, the holders of not less than a majority in
principal amount of the Notes then outstanding, and at any time after any Notes
have been declared due and payable pursuant to paragraph (c)(ii) of Section
12.1, the holders of more than 75% in principal amount of the Notes then
outstanding, by written notice to the Company, may rescind and annul any such
declaration and its consequences if (a) the Company has paid all overdue
interest on the Notes, all principal of and Make-Whole Amount, if any, due and
payable on any Notes other than by reason of such declaration, and all interest
on such overdue principal and Make-Whole Amount, if any, and (to the extent
permitted by applicable law) any overdue interest in respect of the Notes, at
the Default Rate, (b) all Events of Default and Defaults, other than non-payment
of amounts that have become due solely by reason of such declaration, have been
cured or have been waived pursuant to Section 17, and (c) no judgment or decree
has been entered for the payment of any monies due pursuant hereto or to the
Notes as a result of such declaration. No rescission and annulment under this
Section 12.3 will extend to or affect any subsequent Event of Default or Default
or impair any right consequent thereon.
12.4 No Waivers or Election of Remedies, Expenses, etc.
No course of dealing and no delay on the part of any holder of any Note
in exercising any right, power or remedy shall operate as a waiver thereof or
otherwise prejudice such holder's rights, powers or remedies. No right, power or
remedy conferred by this Agreement or by any Note upon any
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holder thereof shall be exclusive of any other right, power or remedy referred
to herein or therein or now or hereafter available at law, in equity, by statute
or otherwise. Without limiting the obligations of the Company under Section 15,
the Company will pay to the holder of each Note on demand such further amount as
shall be sufficient to cover all reasonable costs and expenses of such holder
incurred in any enforcement or collection under this Section 12, including,
without limitation, reasonable attorneys' fees, expenses and disbursements.
13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES.
13.1 Registration of Notes.
The Company shall keep or cause to be kept a register for the
registration and registration of transfers of Notes. The name and address of
each holder of one or more Notes, each transfer thereof and the name and address
of each transferee of one or more Notes shall be registered in such register.
Prior to due presentment for registration of transfer, the Person in whose name
any Note shall be registered shall be deemed and treated as the owner and holder
thereof for all purposes hereof, and the Company shall not be affected by any
notice or knowledge to the contrary. The Company shall give or cause to be given
to any holder of a Note that is an Institutional Investor, promptly upon request
therefor, a complete and correct copy of the names and addresses of all
registered holders of Notes.
13.2 Transfer and Exchange of Notes.
Upon surrender of any Note at the principal executive office of (or
other place designated by) the Company for registration of transfer or exchange
(and in the case of a surrender for registration of transfer, duly endorsed or
accompanied by a written instrument of transfer duly executed by the registered
holder of such Note or his attorney duly authorized in writing and accompanied
by the address for notices of each transferee of such Note or part thereof), the
Company shall execute and deliver, at the Company's expense (except as provided
below), one or more new Notes (as requested by the holder thereof) in exchange
therefor, in an aggregate principal amount equal to the unpaid principal amount
of the surrendered Note. Each such new Note shall be payable to such Person as
such holder may request and shall be substantially in the form of Exhibit 1.
Each such new Note shall be dated and bear interest from the date to which
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interest shall have been paid on the surrendered Note or dated the date of the
surrendered Note if no interest shall have been paid thereon. The Company may
require payment of a sum sufficient to cover any stamp tax or governmental
charge imposed in respect of any such transfer of Notes. Notes shall not be
transferred in denominations of less than $500,000, provided that if necessary
to enable the registration of transfer by a holder of its entire holding of
Notes, one Note may be in a denomination of less than $500,000. Any transferee,
by its acceptance of a Note registered in its name (or the name of its nominee),
shall be deemed to have made the representations set forth in Section 6 and that
the transfer to it of such Notes does not violate any applicable federal or
state securities laws. Notwithstanding anything to the contrary contained herein
or in any Note, a Note may only be transferred to an Institutional Investor.
13.3 Replacement of Notes.
Upon receipt by the Company of evidence reasonably satisfactory to it
of the ownership of and the loss, theft, destruction or mutilation of any Note
(which evidence shall be, in the case of an Institutional Investor, notice from
such Institutional Investor of such ownership and such loss, theft, destruction
or mutilation), and
(a) in the case of loss, theft or destruction, of indemnity
reasonably satisfactory to the Company (provided that if the holder of
such Note is, or is a nominee for, an original purchaser or an
Institutional Investor, such Person's own unsecured agreement of
indemnity shall be deemed to be satisfactory), or
(b) in the case of mutilation, upon surrender and cancellation
thereof,
the Company at its own expense shall execute and deliver, in lieu thereof, a new
Note, dated and bearing interest from the date to which interest shall have been
paid on such lost, stolen, destroyed or mutilated Note or dated the date of such
lost, stolen, destroyed or mutilated Note if no interest shall have been paid
thereon.
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14. PAYMENTS ON NOTES.
14.1 Place of Payment.
Subject to Section 14.2, payments of principal, Make-Whole Amount, if
any, and interest becoming due and payable on the Notes shall be made in New
York, New York at the principal office of the Company in such jurisdiction. The
Company may at any time, by notice to each holder of a Note, change the place of
payment of the Notes so long as such place of payment shall be either the
principal office of the Company in such jurisdiction or the principal office of
a bank or trust company in such jurisdiction.
14.2 Home Office Payment.
So long as you or your nominee shall be the holder of any Note, and
notwithstanding anything contained in Section 14.1 or in such Note to the
contrary, the Company will pay all sums becoming due on such Note for principal,
Make-Whole Amount, if any, and interest by the method and at the address
specified for such purpose below your name in Schedule A, or by such other
method or at such other address as you shall have from time to time specified to
the Company in writing for such purpose, without the presentation or surrender
of such Note or the making of any notation thereon, except that upon written
request of the Company made concurrently with or reasonably promptly after
payment or prepayment in full of any Note, you shall surrender such Note for
cancellation, reasonably promptly after any such request, to the Company at its
principal executive office or at the place of payment most recently designated
by the Company pursuant to Section 14.1. Prior to any sale or other disposition
of any Note held by you or your nominee you will, at your election, either
endorse thereon the amount of principal paid thereon and the last date to which
interest has been paid thereon or surrender such Note to the Company in exchange
for a new Note or Notes pursuant to Section 13.2. The Company will afford the
benefits of this Section 14.2 to any Institutional Investor that is the direct
or indirect transferee of any Note purchased by you under this Agreement and
that has made the same agreement relating to such Note as you have made in this
Section 14.2.
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15. EXPENSES, ETC.
15.1 Transaction Expenses.
Whether or not the transactions contemplated hereby are consummated,
the Company will pay all reasonable out-of-pocket costs and expenses (including
reasonable attorneys' fees of a special counsel for all holders of the Notes
and, if reasonably required, local or other counsel of all such holders)
incurred by you and each Other Purchaser or holder of a Note in connection with
such transactions and in connection with any amendments, waivers or consents
under or in respect of this Agreement or the Notes (whether or not such
amendment, waiver or consent becomes effective), including, without limitation:
(a) the reasonable costs and expenses incurred in enforcing or defending (or
determining whether or how to enforce or defend) any rights under this Agreement
or the Notes or in responding to any subpoena or other legal process or informal
investigative demand issued in connection with this Agreement or the Notes, or
by reason of being a holder of any Note, and (b) the reasonable costs and
expenses incurred in connection with the insolvency or bankruptcy of the Company
or any Subsidiary or in connection with any work-out or restructuring of the
transactions contemplated hereby and by the Notes. The Company will pay, and
will save you and each other holder of a Note harmless from, all claims in
respect of any fees, costs or expenses, if any, of brokers and finders (other
than those retained by you).
15.2 Survival.
The obligations of the Company under this Section 15 will survive the
payment or transfer of any Note, the enforcement, amendment or waiver of any
provision of this Agreement or the Notes, and the termination of this Agreement.
16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT.
All representations and warranties contained herein shall survive the
execution and delivery of this Agreement and the Notes, the purchase or transfer
by you of any Note or portion thereof or interest therein, and may be relied
upon by any subsequent holder of a Note, regardless of any investigation made at
any time by or on behalf of you or any other holder of a Note; it being
understood that such representations and warranties are only made as of the date
of the Closing. All statements contained in any certificate or other instrument
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delivered by or on behalf of the Company pursuant to this Agreement shall be
deemed representations and warranties, as of the date thereof, of the Company
under this Agreement. Subject to the preceding sentence, this Agreement and the
Notes embody the entire agreement and understanding between you and the Company
and supersede all prior agreements and understandings relating to the subject
matter hereof.
17. AMENDMENT AND WAIVER.
17.1 Requirements.
This Agreement and the Notes may be amended, and the observance of any
term hereof or of the Notes may be waived (either retroactively or
prospectively), with (and only with) the written consent of the Company and the
Required Holders, except that (a) no amendment or waiver of any of the
provisions of any of Sections 1, 2, 3, 4, 5, 6 and 21, or any defined term (as
it is used therein), will be effective as to you unless consented to by you in
writing, and (b) no such amendment or waiver may, without the written consent of
the holder of each Note at the time outstanding affected thereby, (i) subject to
the provisions of Section 12 relating to acceleration or rescission, reduce the
amount or extend the time of any prepayment or payment of principal of, or
reduce the rate or extend the time of payment or adversely change (from the
perspective of the holders of the Notes) the method of computation of interest
or of the Make-Whole Amount on, the Notes, (ii) change the percentage of the
principal amount of the Notes the holders of which are required to consent to
any such amendment or waiver, or (iii) amend any of Sections 8, 11(a), 11(b),
11(g), 11(h), 12, 17 and 20.
17.2 Solicitation of Holders of Notes.
(a) Solicitation. The Company will provide each holder of the
Notes (irrespective of the amount of Notes then owned by it) with
sufficient information, sufficiently far in advance of the date a
decision is required, to enable such holder to make an informed and
considered decision with respect to any proposed amendment, waiver or
consent in respect of any of the provisions hereof or of the Notes. The
Company will deliver executed or true and correct copies of each
amendment, waiver or consent effected pursuant to the provisions of
this Section 17 to each holder of outstanding Notes promptly following
the date on which it is executed and
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delivered by, or receives the consent or approval of, the requisite
holders of Notes.
(b) Payment. The Company will not directly or indirectly pay
or cause to be paid any remuneration, whether by way of supplemental or
additional interest, fee or otherwise, or grant any security, to any
holder of Notes as consideration for or as an inducement to the
entering into by any holder of Notes of any waiver or amendment of any
of the terms and provisions hereof unless such remuneration is
concurrently paid, or security is concurrently granted, on the same
terms, ratably to each holder of Notes then outstanding even if such
holder did not consent to such waiver or amendment.
17.3 Binding Effect, etc.
Any amendment or waiver consented to as provided in this Section 17
applies equally to all holders of Notes and is binding upon them and upon each
future holder of any Note and upon the Company without regard to whether such
Note has been marked to indicate such amendment or waiver. No such amendment or
waiver will extend to or affect any obligation, covenant, agreement, Default or
Event of Default not expressly amended or waived or impair any right consequent
thereon. No course of dealing between the Company and the holder of any Note nor
any delay in exercising any rights hereunder or under any Note shall operate as
a waiver of any rights of any holder of such Note. As used herein, the term
"this Agreement" and references thereto shall mean this Agreement (including the
exhibits and schedules hereto) as it may from time to time be amended or
supplemented.
17.4 Notes held by Company, etc.
Solely for the purpose of determining whether the holders of the
requisite percentage of the aggregate principal amount of Notes then outstanding
approved or consented to any amendment, waiver or consent to be given under this
Agreement or the Notes, or have directed the taking of any action provided
herein or in the Notes to be taken upon the direction of the holders of a
specified percentage of the aggregate principal amount of Notes then
outstanding, Notes directly or indirectly owned by the Company or any of its
Affiliates shall be deemed not to be outstanding.
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18. NOTICES.
All notices and communications provided for hereunder shall be in
writing and sent (a) by telecopy if the sender on the same day sends a
confirming copy of such notice by a recognized overnight delivery service
(charges prepaid), (b) by a recognized overnight delivery service (with charges
prepaid) or (c) by hand delivery. Any such notice must be sent or delivered:
(i) if to you or your nominee, to you or it at the address
specified for such communications in Schedule A, or at such other
address as you or it shall have specified to the Company in writing,
(ii) if to any other holder of any Note, to such holder at
such address as such other holder shall have specified to the Company
in writing, or
(iii) if to the Company, to the Company at its address set
forth at the beginning hereof to the attention of its Treasurer,
telecopier: (▇▇▇) ▇▇▇-▇▇▇▇, with a copy to the Company's General
Counsel, telecopier: (▇▇▇) ▇▇▇-▇▇▇▇, or at such other address or
telecopier as the Company shall have specified to the holder of each
Note in writing.
Notices under this Section 18 will be deemed given only when actually received.
19. REPRODUCTION OF DOCUMENTS.
This Agreement and all documents relating thereto, including, without
limitation, (a) consents, waivers and modifications that may hereafter be
executed, (b) documents received by you at the Closing (except the Notes
themselves), and (c) financial statements, certificates and other information
previously or hereafter furnished to you, may be reproduced by you by any
photographic, photostatic, microfilm, microcard, miniature photographic or other
similar process and you may destroy any original document so reproduced. The
Company agrees and stipulates that, to the extent permitted by applicable law,
any such reproduction shall be admissible in evidence as the original itself in
any judicial or administrative proceeding (whether or not the original is in
existence and whether or not such reproduction was made by you in the regular
course of business) and any enlargement, facsimile or further reproduction of
such reproduction shall likewise be admissible in evidence. This Section 19
shall not prohibit the
58
64
Company or any other holder of Notes from contesting any such reproduction to
the same extent that it could contest the original, or from introducing evidence
to demonstrate the inaccuracy of any such reproduction.
20. CONFIDENTIAL INFORMATION.
For the purposes of this Section 20, "Confidential Information" means
information delivered to you by or on behalf of the Company or any Subsidiary in
connection with the transactions contemplated by or otherwise pursuant to this
Agreement that is proprietary in nature and that was clearly marked or labeled
or otherwise adequately identified when received by you as being confidential
information of the Company or such Subsidiary, provided that such term does not
include information that
(a) was publicly known or otherwise became known to you from a
Person other than the Company, any Subsidiary, or another holder of
Notes prior to the time of such disclosure,
(b) subsequently becomes publicly known through no act or
omission by you or any Person acting on your behalf,
(c) otherwise becomes known to you other than through
disclosure by the Company, any Subsidiary or another holder of Notes,
or
(d) constitutes financial statements delivered to you under
Section 7.1 that are otherwise publicly available.
You will maintain the confidentiality of such Confidential Information in
accordance with procedures adopted by you in good faith to protect confidential
information of third parties delivered to you, provided that you may deliver or
disclose Confidential Information to:
(i) your directors, officers, trustees, employees, agents,
attorneys and affiliates (to the extent such disclosure reasonably
relates to the administration of the investment represented by your
Notes),
(ii) your financial advisors and other professional advisors,
(iii) any other holder of any Note,
59
65
(iv) any Institutional Investor to which you sell or offer to
sell such Note or any part thereof or any participation therein (if
such Person has agreed in writing for the benefit of the Company prior
to its receipt of such Confidential Information to be bound by the
provisions of this Section 20),
(v) any Person from which you offer to purchase any Security
of the Company (if such Person has agreed in writing for the benefit of
the Company prior to its receipt of such Confidential Information to be
bound by the provisions of this Section 20),
(vi) any federal or state regulatory authority having
jurisdiction over you, to the extent required by any such authority,
(vii) the National Association of Insurance Commissioners or
any similar organization, or any nationally recognized rating agency
that requires access to information about your investment portfolio or
(viii) any other Person to which such delivery or disclosure
may be necessary or appropriate
(A) to effect compliance with any law, rule,
regulation or order applicable to you,
(B) in response to any subpoena or other legal
process,
(C) in connection with any litigation to which you
are a party, or
(D) if an Event of Default has occurred and is
continuing, to the extent you may reasonably determine such
delivery and disclosure to be necessary or appropriate in the
enforcement or for the protection of the rights and remedies
under your Notes and this Agreement.
Each holder of a Note, by its acceptance of a Note, will be deemed to have
agreed to be bound by and to be entitled to the benefits of this Section 20 as
though it were a party to this Agreement. On reasonable request by the Company
in connection with the delivery to any holder of a Note of information required
to be delivered to such holder under this Agreement or requested by such holder
(other than a holder
60
66
that is a party to this Agreement or its nominee), such holder will enter into
an agreement with the Company embodying the provisions of this Section 20.
21. SUBSTITUTION OF PURCHASER.
You shall have the right to substitute any one of your Affiliates as
the purchaser of the Notes that you have agreed to purchase hereunder, by
written notice to the Company, which notice shall be signed by both you and such
Affiliate, shall contain such Affiliate's agreement to be bound by this
Agreement and shall contain a confirmation by such Affiliate of the accuracy
with respect to it of the representations set forth in Section 6. Upon receipt
of such notice, wherever the word "you" is used in this Agreement (other than in
this Section 21), such word shall be deemed to refer to such Affiliate in lieu
of you. In the event that such Affiliate is so substituted as a purchaser
hereunder and such Affiliate thereafter transfers to you all of the Notes then
held by such Affiliate, upon receipt by the Company of notice of such transfer,
wherever the word "you" is used in this Agreement (other than in this Section
21), such word shall no longer be deemed to refer to such Affiliate, but shall
refer to you, and you shall have all the rights of an original holder of the
Notes under this Agreement.
22. MISCELLANEOUS.
22.1 Successors and Assigns.
All covenants and other agreements contained in this Agreement by or on
behalf of any of the parties hereto bind and inure to the benefit of their
respective successors and permitted assigns (including, without limitation, any
subsequent holder of a Note) whether so expressed or not.
22.2 Payments Due on Non-Business Days.
Anything in this Agreement or the Notes to the contrary
notwithstanding, any payment of principal of or Make-Whole Amount or interest on
any Note that is due on a date other than a Business Day shall be made on the
next succeeding Business Day without including the additional days elapsed in
the computation of the interest payable on such next succeeding Business Day.
61
67
22.3 Generally Accepted Accounting Principles.
You acknowledge that the covenants of the Company set forth in Section
10, and the definitions of terms used in such Section and set forth in Schedule
B hereto, have been negotiated and agreed upon on the basis of the application
to the financial statements of the Company and the Subsidiaries of GAAP as in
effect on the date of this Agreement. Accordingly, you agree that, in the event
of a change in GAAP that would affect in any material respect the ability of the
Company to comply with any of such covenants, you will negotiate in good faith
with the Company for a period of ninety (90) days, ending not later than the
ninetieth (90th) day after the effectiveness of any such change in GAAP, with a
view to agreement upon appropriate revisions to any such covenant to take into
account such change. During such ninety (90) day period, any Event of Default
which would result solely from such change in GAAP shall be deemed waived. Upon
the expiration of such ninety (90) day period, if no agreement between you and
the Company has been reached, such deemed waiver shall terminate and the
Company's compliance with the covenants in Section 10 shall be determined in
accordance with GAAP as in effect from time to time. You acknowledge that it is
not your present intention to charge a fee in connection with any such revisions
and the Company acknowledges that this statement of intention does not prohibit
you from charging a fee for any such revisions if you subsequently determine
that a fee would be appropriate.
22.4 Severability.
Any provision of this Agreement that is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall (to the full extent permitted by law) not invalidate or
render unenforceable such provision in any other jurisdiction.
22.5 Construction.
Each covenant contained herein shall be construed (absent express
provision to the contrary) as being independent of each other covenant contained
herein, so that compliance with any one covenant shall not (absent such an
express contrary provision) be deemed to excuse compliance with any other
covenant. Where any provision herein refers to
62
68
action to be taken by any Person, or which such Person is prohibited from
taking, such provision shall be applicable whether such action is taken directly
or indirectly by such Person.
22.6 Counterparts.
This Agreement may be executed in any number of counterparts, each of
which shall be an original but all of which together shall constitute one
instrument. Each counterpart may consist of a number of copies hereof, each
signed by less than all, but together signed by all, of the parties hereto.
22.7 Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND
THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE OF NEW YORK
EXCLUDING CHOICE-OF-LAW PRINCIPLES OF THE LAW OF SUCH STATE THAT WOULD REQUIRE
THE APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN SUCH STATE.
[Remainder of page intentionally blank. Next page is signature page.]
63
69
If you are in agreement with the foregoing, please sign the
form of agreement on the accompanying counterpart of this Agreement and return
it to the Company, whereupon the foregoing shall become a binding agreement
between you and the Company.
Very truly yours,
HANDY & ▇▇▇▇▇▇
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
__________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
and Treasurer
The foregoing is hereby
agreed to as of the
date thereof.
[Separately executed by each
of the following Purchasers]
NEW YORK LIFE INSURANCE COMPANY
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
_______________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION
By: New York Life Insurance Company
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
_______________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
CONNECTICUT GENERAL LIFE INSURANCE COMPANY,
on behalf of one or more separate accounts
By CIGNA Investments, Inc.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
_______________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
PACIFIC EMPLOYERS INSURANCE COMPANY
By CIGNA Investments, Inc.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
_______________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
INA LIFE INSURANCE COMPANY OF NEW YORK
By CIGNA Investments, Inc.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
_______________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
LIFE INSURANCE COMPANY OF NORTH AMERICA
By CIGNA Investments, Inc.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
_______________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LIFE INSURANCE COMPANY OF AMERICA
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇
_______________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇
Title: Second Vice President
JEFFERSON-PILOT LIFE INSURANCE COMPANY
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇
_______________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇
Title: Second Vice President
GUARDIAN LIFE INSURANCE COMPANY OF AMERICA
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
_______________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
FORT DEARBORN LIFE INSURANCE COMPANY
By GUARDIAN ASSET MANAGEMENT CORP.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_______________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
NATIONWIDE LIFE INSURANCE COMPANY
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
_______________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Subsidiary & Affiliate Investments
NATIONWIDE LIFE AND ANNUITY INSURANCE COMPANY
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
_______________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Subsidiary & Affiliate Investments
PROVIDIAN LIFE AND HEALTH INSURANCE COMPANY
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
_______________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Second Vice President - Investments
AMERICAN BANKERS INSURANCE COMPANY
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_______________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director of Investments
AMERICAN BANKERS LIFE ASSURANCE COMPANY
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_______________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director of Investments
RGA REINSURANCE COMPANY
By: Conning Asset Management Company
By /s/ ▇. ▇▇▇▇▇▇▇
_______________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
THE OHIO NATIONAL LIFE INSURANCE COMPANY
By /s/ B. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
_______________________________
Name: B. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Investment Officer
SOUTHERN FARM BUREAU LIFE INSURANCE COMPANY
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
_______________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, CFA
Title: Portfolio Manager, Fixed Income
PROVIDENT MUTUAL LIFE INSURANCE COMPANY
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
_______________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
PROVIDENT MUTUAL LIFE AND ANNUITY COMPANY OF AMERICA
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
_______________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
MID-WESTERN NATIONAL LIFE INSURANCE COMPANY
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
_______________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Managing Director
Emerald Capital Group, Ltd.
Investment Advisor to
Mid-Western National Life Insurance Company
▇▇▇▇▇▇▇ ▇▇▇▇▇ LIFE INSURANCE COMPANY
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
_______________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
MODERN WOODMEN OF AMERICA
By /s/ ▇. ▇. ▇▇▇▇▇▇▇
_______________________________
Name: ▇. ▇. ▇▇▇▇▇▇▇
Title: Director, Treasurer & Investment Manager
NATIONAL GUARDIAN LIFE INSURANCE COMPANY
By /s/ ▇. ▇. ▇▇▇▇▇
_______________________________
Name: ▇. ▇. ▇▇▇▇▇
Title: AVP Investments
PAN-AMERICAN LIFE INSURANCE COMPANY
By /s/ ▇. ▇. ▇▇▇▇▇
_______________________________
Name: ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
Corporate Securities
70
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
Purchaser Name NEW YORK LIFE INSURANCE COMPANY
-------------- -------------------------------
Name in Which Note is Registered New York Life Insurance Company
Note Registration Number; Principal R-1; $15,000,000
Amount
Payment on Account of Note
Federal Funds Wire Transfer
Method
▇▇▇▇▇▇ Guaranty Trust Company of New York
Account Information ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
ABA No.: ▇▇▇-▇▇▇-▇▇▇
For the Account of: New York Life Insurance Company
Account No.: ▇▇▇-▇▇-▇▇▇
Accompanying Information Name of Company: HANDY & ▇▇▇▇▇▇
Description of
Security: 7.31% Senior Notes due April 30, 2004
PPN: 410306 D* 2
Due Date and Application (as among
principal, Make-Whole Amount and
interest) of the payment being made:
Address for Notices Related to New York Life Insurance Company
Payments ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Treasury Department
Securities Income Section
▇▇▇▇ ▇▇▇
Fax #: (▇▇▇) ▇▇▇-▇▇▇▇
Address for all other Notices New York Life Insurance Company
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Investment Department
Private Finance Group
▇▇▇▇ ▇▇▇
Fax #: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy of any notice regarding
defaults or Events of Default under the
operative documents to:
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Fax #: (▇▇▇) ▇▇▇-▇▇▇▇
Schedule A-1
71
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
Purchaser Name NEW YORK LIFE INSURANCE COMPANY
-------------- -------------------------------
Other Instructions NEW YORK LIFE INSURANCE COMPANY
By_______________________
Name:
Title:
Instructions re Law Department of Purchaser
Delivery of Notes
Tax Identification Number ▇▇-▇▇▇▇▇▇▇
Schedule A-2
72
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
Purchaser Name NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION
-------------- -----------------------------------------------
Name in Which Note is Registered New York Life Insurance and Annuity Corporation
Note Registration Number; Principal R-2; $10,000,000
Amount
Payment on Account of Note
Federal Funds Wire Transfer
Method
Chase Manhattan Bank
Account Information New York, New York
ABA No.: ▇▇▇-▇▇▇-▇▇▇
For the Account of: New York Life Insurance and Annuity Corporation
Account No.: ▇▇▇-▇-▇▇▇▇▇
Accompanying Information Name of Company: HANDY & ▇▇▇▇▇▇
Description of
Security: 7.31% Senior Notes due April 30, 2004
PPN: 410306 D* 2
Due Date and Application (as among
principal, Make-Whole Amount and
interest) of the payment being made:
Address for Notices Related to New York Life Insurance and Annuity Corporation
Payments c/o New York Life Insurance Company
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Treasury Department
Securities Income Section
▇▇▇▇ ▇▇▇
Fax #: (▇▇▇) ▇▇▇-▇▇▇▇
Schedule A-3
73
SCHEDULE A
INFORMATION RELATING TO PURCHASES
Purchaser Name NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION
-------------- -----------------------------------------------
Address for all other Notices New York Life Insurance and Annuity Corporation
c/o New York Life Insurance Company
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Investment Department
Private Finance Group
▇▇▇▇ ▇▇▇
Fax #: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy of any notice regarding
defaults or Events of Default under the
operative documents to:
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Fax #: (▇▇▇) ▇▇▇-▇▇▇▇
Other Instructions NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION
By: New York Life Insurance Company
By_______________________
Name:
Title:
Instructions re Law Department of Purchaser
Delivery of Notes
Tax Identification Number ▇▇-▇▇▇▇▇▇▇
Schedule A-4
74
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
Purchaser Name CONNECTICUT GENERAL LIFE INSURANCE COMPANY,
on behalf of one or more separate accounts
-------------- -------------------------------------------
Name in Which Notes are CIG & Co.
Registered
Note Registration Numbers; R-3; $3,500,000
Principal Amounts R-4; $3,000,000
Payment on Account of Notes
Federal Funds Wire Transfer
Method
Chase NYC/CTR/
Account Information BNF=CIGNA Private Placements/AC=9009001802
ABA# ▇▇▇▇▇▇▇▇▇
OBI=[name of company; description of
security; interest rate, maturity date;
PPN; due date and application (as among
principal, premium and interest of the
payment being made; contact name and
phone.]
Accompanying Information Name of Company: HANDY & ▇▇▇▇▇▇
Description of
Security: 7.31% Senior Notes due April 30, 2004
PPN: 410306 D* 2
Due Date and Application (as among
principal, Make-Whole Amount and
interest) of the payment being made:
Schedule A-5
75
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
Purchaser Name CONNECTICUT GENERAL LIFE INSURANCE COMPANY,
on behalf of one or more separate accounts
-------------- -------------------------------------------
Address for Notices Related to CIG & Co.
Payments c/o CIGNA Investments, Inc.
Attention: Securities Processing S-309
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
CIG & Co.
c/o CIGNA Investments, Inc.
Attention: Private Securities - S307
Operations Group
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
Chase Manhattan Bank, N.A.
Private Placement Servicing
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: CIGNA Private Placements
FAX: ▇▇▇-▇▇▇-▇▇▇▇/1005
Address for all other Notices CIG & Co.
c/o CIGNA Investments, Inc.
Attention: Private Securities Division - S307
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
FAX: ▇▇▇-▇▇▇-▇▇▇▇
Other Instructions CONNECTICUT GENERAL LIFE INSURANCE COMPANY, on
behalf of one or more separate accounts
By CIGNA Investments, Inc.
By_______________________
Name:
Title:
Instructions re Law Department of Purchaser
Delivery of Notes
Tax Identification Number ▇▇-▇▇▇▇▇▇▇
Schedule A-6
76
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
Purchaser Name PACIFIC EMPLOYERS INSURANCE COMPANY
-------------- -----------------------------------
Name in Which Note is Registered CIG & Co.
Note Registration Number; Principal R-5; $3,000,000
Amount
Payment on Account of Note
Federal Funds Wire Transfer
Method
Chase NYC/CTR/
Account Information BNF=CIGNA Private Placements/AC=9009001802
ABA# ▇▇▇▇▇▇▇▇▇
OBI=[name of company; description of
security; interest rate, maturity date;
PPN; due date and application (as among
principal, premium and interest of the
payment being made; contact name and
phone.]
Accompanying Information Name of Company: HANDY & ▇▇▇▇▇▇
Description of
Security: 7.31% Senior Notes due April 30, 2004
PPN: 410306 D* 2
Due Date and Application (as among
principal, Make-Whole Amount and
interest) of the payment being made:
Address for Notices Related to CIG & Co.
Payments c/o CIGNA Investments, Inc.
Attention: Securities Processing S-309
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
CIG & Co.
c/o CIGNA Investments, Inc.
Attention: Private Securities - S307
Operations Group
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
Chase Manhattan Bank, N.A.
Private Placement Servicing
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: CIGNA Private Placements
FAX: ▇▇▇-▇▇▇-▇▇▇▇/1005
Schedule A-7
77
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
Purchaser Name PACIFIC EMPLOYERS INSURANCE COMPANY
-------------- -----------------------------------
Address for all other Notices CIG & Co.
c/o CIGNA Investments, Inc.
Attention: Private Securities Division - S-307
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
FAX: ▇▇▇-▇▇▇-▇▇▇▇
Other Instructions PACIFIC EMPLOYERS INSURANCE
COMPANY By CIGNA Investments, Inc.
By_______________________
Name:
Title:
Instructions re Delivery of Notes Law Department of Purchaser
Tax Identification Number ▇▇-▇▇▇▇▇▇▇
Schedule A-8
78
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
Purchaser Name INA LIFE INSURANCE COMPANY OF NEW YORK
-------------- --------------------------------------
Name in Which Note is Registered CIG & Co.
Note Registration Number; Principal R-6; $3,000,000
Amount
Payment on Account of Note
Federal Funds Wire Transfer
Method
Chase NYC/CTR/
Account Information BNF=CIGNA Private Placements/AC=9009001802
ABA# ▇▇▇▇▇▇▇▇▇
OBI=[name of company; description of
security; interest rate, maturity date;
PPN; due date and application (as among
principal, premium and interest of the
payment being made; contact name and
phone.]
Accompanying Information Name of Company: HANDY & ▇▇▇▇▇▇
Description of
Security: 7.31% Senior Notes due April 30, 2004
PPN: 410306 D* 2
Due Date and Application (as among
principal, Make-Whole Amount and
interest) of the payment being made:
Address for Notices Related to CIG & Co.
Payments c/o CIGNA Investments, Inc.
Attention: Securities Processing S-309
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
CIG & Co.
c/o CIGNA Investments, Inc.
Attention: Private Securities - S307
Operations Group
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
Chase Manhattan Bank, N.A.
Private Placement Servicing
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: CIGNA Private Placements
FAX: ▇▇▇-▇▇▇-▇▇▇▇/1005
Schedule A-9
79
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
Purchaser Name INA LIFE INSURANCE COMPANY OF NEW YORK
-------------- --------------------------------------
Address for all other
Notices CIG & Co.
c/o CIGNA Investments, Inc.
Attention: Private Securities Division - S-307
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
FAX: ▇▇▇-▇▇▇-▇▇▇▇
Other Instructions INA LIFE INSURANCE COMPANY
OF NEW YORK By CIGNA Investments, Inc.
By_______________________
Name:
Title:
Instructions re Law Department of Purchaser
Delivery of Notes
Tax Identification Number ▇▇-▇▇▇▇▇▇▇
Schedule A-10
80
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
Purchaser Name LIFE INSURANCE COMPANY OF NORTH AMERICA
-------------- ---------------------------------------
Name in Which Note is
Registered CIG & Co.
Note Registration Number; Principal R-7; $3,000,000
Amount
Payment on Account of Note
Federal Funds Wire Transfer
Method
Chase NYC/CTR/
Account Information BNF=CIGNA Private Placements/AC=9009001802
ABA# ▇▇▇▇▇▇▇▇▇
OBI=[name of company; description of
security; interest rate, maturity date;
PPN; due date and application (as among
principal, premium and interest of the
payment being made; contact name and
phone.]
Accompanying Information Name of Company: HANDY & ▇▇▇▇▇▇
Description of
Security: 7.31% Senior Notes due April 30, 2004
PPN: 410306 D* 2
Due Date and Application (as among
principal, Make-Whole Amount and
interest) of the payment being made:
Schedule A-11
81
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
Purchaser Name LIFE INSURANCE COMPANY OF NORTH AMERICA
-------------- ---------------------------------------
Address for Notices Related to CIG & Co.
Payments c/o CIGNA Investments, Inc.
Attention: Securities Processing S-309
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
CIG & Co.
c/o CIGNA Investments, Inc.
Attention: Private Securities - S307
Operations Group
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
Chase Manhattan Bank, N.A.
Private Placement Servicing
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: CIGNA Private Placements
FAX: ▇▇▇-▇▇▇-▇▇▇▇/1005
Address for all other
Notices CIG & Co.
c/o CIGNA Investments, Inc.
Attention: Private Securities Division - S-307
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
FAX: ▇▇▇-▇▇▇-▇▇▇▇
Other Instructions LIFE INSURANCE COMPANY OF NORTH AMERICA
By CIGNA Investments, Inc.
By_______________________
Name:
Title:
Instructions re Law Department of Purchaser
Delivery of Notes
Tax Identification Number ▇▇-▇▇▇▇▇▇▇
Schedule A-12
82
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
Purchaser Name ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LIFE INSURANCE COMPANY OF AMERICA
-------------- ----------------------------------------------------
Name in Which Note is Registered ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Life Insurance Company of America
Note Registration Number; Principal R-8; $6,500,000
Amount
Payment on Account of Note
Federal Funds Wire Transfer
Method
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Life Insurance Company of America
Account Information ▇/▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
▇▇▇ #021 000 018
BNF: IOC566
Attention: P&I Department
Accompanying Information Name of Company: HANDY & ▇▇▇▇▇▇
Description of
Security: 7.31% Senior Notes due April 30, 2004
PPN: 410306 D* 2
Due Date and Application (as among
principal, Make-Whole Amount and
interest) of the payment being made:
Address for Notices Related to ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Life Insurance Company of America
Payments ▇/▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇: ▇&▇ Department
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Address for all other Notices ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Life Insurance Company of America
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Securities Administration - 3630
Fax: 910/▇▇▇-▇▇▇▇
For overnight delivery:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Other Instructions ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LIFE INSURANCE COMPANY OF
AMERICA
By_______________________
Name:
Title:
Schedule A-13
83
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
Purchaser Name ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LIFE INSURANCE COMPANY OF AMERICA
-------------- ----------------------------------------------------
Instructions re Bank of New York
Delivery of Notes One Wall Street
3rd Floor, Window A
For ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Life Acct. 186101
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Life Insurance Company of America
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Securities Administration - 3630
Tax Identification Number ▇▇-▇▇▇▇▇▇▇
Schedule A-14
84
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
Purchaser Name JEFFERSON-PILOT LIFE INSURANCE COMPANY
-------------- --------------------------------------
Name in Which Note is Registered Jefferson-Pilot Life Insurance Company
Note Registration Number; Principal R-9; $6,500,000
Amount
Payment on Account of Note
Federal Funds Wire Transfer
Method
Jefferson-Pilot Life Insurance Company
Account Information ▇/▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
▇▇▇ #021 000 018
BNF: IOC566
Attention: P&I Department
Accompanying Information Name of Company: HANDY & ▇▇▇▇▇▇
Description of
Security: 7.31% Senior Notes due April 30, 2004
PPN: 410306 D* 2
Due Date and Application (as among
principal, Make-Whole Amount and
interest) of the payment being made:
Address for Notices Related to Jefferson-Pilot Life Insurance Company
Payments ▇/▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇: ▇&▇ Department
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Address for all other Notices Jefferson-Pilot Life Insurance Company
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Securities Administration - 3630
Fax: 910/▇▇▇-▇▇▇▇
For overnight delivery:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Other Instructions JEFFERSON-PILOT LIFE INSURANCE COMPANY
By_______________________
Name:
Title:
Schedule A-15
85
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
Purchaser Name JEFFERSON-PILOT LIFE INSURANCE COMPANY
-------------- --------------------------------------
Instructions re Bank of New York
Delivery of Notes One Wall Street
3rd Floor, Window A
For Jefferson-Pilot Life Acct. 186100
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
with a copy to:
Jefferson-Pilot Life Insurance Company
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Securities Administration - 3630
Tax Identification Number ▇▇-▇▇▇▇▇▇▇
Schedule A-16
86
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
Purchaser Name THE GUARDIAN LIFE INSURANCE COMPANY OF AMERICA
-------------- ----------------------------------------------
Name in Which Note
is Registered ▇▇▇▇ & CO.
Note Registration Number; Principal R-10; $8,000,000
Amount
Payment on Account of Note
Federal Funds Wire Transfer
Method
The Chase Manhattan Bank
Account Information FED ABA #▇▇▇▇▇▇▇▇▇
CHASE/NYC/CTR/BNF
A/C ▇▇▇-▇-▇▇▇▇▇▇
Reference The Guardian A/C #G05978
Accompanying Information Name of Company: HANDY & ▇▇▇▇▇▇
Description of
Security: 7.31% Senior Notes due April 30, 2004
PPN: 410306 D* 2
Due Date and Application (as among
principal, Make-Whole Amount and
interest) of the payment being made:
Address for Notices Related to The Guardian Life Insurance Company of America
Payments Attn: Investment Account M-IA
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax (▇▇▇) ▇▇▇-▇▇▇▇
Address for all other Notices The Guardian Life Insurance Company of America
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Investment Department 7B
FAX # (▇▇▇) ▇▇▇-▇▇▇▇
Other Instructions GUARDIAN LIFE INSURANCE COMPANY OF AMERICA
By_______________________
Name:
Title:
Schedule A-17
87
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
Purchaser Name THE GUARDIAN LIFE INSURANCE COMPANY OF AMERICA
-------------- ----------------------------------------------
Instructions re Chase Manhattan Bank
Delivery of Notes 4 New York Plaza
Ground Floor/Receive Window
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Reference The Guardian Account #G05978
Tax Identification Number ▇▇-▇▇▇▇▇▇▇
Schedule A-18
88
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
Purchaser Name FORT DEARBORN LIFE INSURANCE COMPANY
-------------- ------------------------------------
Name in Which Note is Registered Var & Co.
Note Registration Number; Principal R-11; $2,000,000
Amount
Payment on Account of Note
Federal Funds Wire Transfer
Method
First Bank Minneapolis
Account Information ABA #▇▇▇▇▇▇▇▇▇
For further credit to First Trust Illinois
Account ▇-▇▇▇-▇▇▇▇▇▇▇▇
Wire Clearing Account ▇▇▇▇▇▇▇▇
Att: A/C #78693302 Fort Dearborn Life
Accompanying Information Name of Company: HANDY & ▇▇▇▇▇▇
Description of
Security: 7.31% Senior Notes due April 30, 2004
PPN: 410306 D* 2
Due Date and Application (as among
principal, Make-Whole Amount and
interest) of the payment being made:
Address for Notices Related to Fort Dearborn Life Insurance Company
Payments c/o Guardian Asset Management Corp.
Fixed Income Securities
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ - ▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Address for all other Notices Fort Dearborn Life Insurance Company
c/o Guardian Asset Management Corp.
Fixed Income Securities
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ - ▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Other Instructions FORT DEARBORN LIFE INSURANCE COMPANY
By_______________________
Name:
Title:
Instructions re First Trust N.A.
Delivery of Notes Attn: Physical Unit
Asset Settlement Services
Fourth Floor
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇
Tax Identification Number ▇▇-▇▇▇▇▇▇▇
Schedule A-19
89
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
Schedule A-20
90
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
Purchaser Name NATIONWIDE LIFE INSURANCE COMPANY
-------------- ---------------------------------
Name in Which Note is Registered Nationwide Life Insurance Company
Note Registration Number; Principal R-12; $7,500,000
Amount
Payment on Account of Note
Federal Funds Wire Transfer
Method
The Bank of New York
Account Information ABA No.: ▇▇▇-▇▇▇-▇▇▇
BNF: IOC566
For the Account of: Nationwide Life Insurance Company
Attn: P&I Department
Accompanying Information Name of Company: HANDY & ▇▇▇▇▇▇
Description of
Security: 7.31% Senior Notes due April 30, 2004
PPN: 410306 D* 2
Due Date and Application (as among
principal, Make-Whole Amount and
interest) of the payment being made:
Address for Notices Related to Nationwide Life Insurance Company
Payments ▇/▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇
Attn: P&I Department
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy to:
Nationwide Life Insurance Company
Attn: Investment Accounting
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (▇-▇▇-▇▇)
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Address for all other Notices Nationwide Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (▇-▇▇-▇▇)
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Corporate Fixed-Income Securities
Other Instructions NATIONWIDE LIFE INSURANCE COMPANY
By_______________________
Name:
Title:
Schedule A-21
91
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
Purchaser Name NATIONWIDE LIFE INSURANCE COMPANY
-------------- ---------------------------------
Instructions re The Bank of New York
Delivery of Notes One Wall Street
3rd Floor - Window A
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
F/A/O Nationwide Life Insurance Company Account No.: 267829
Tax Identification Number ▇▇-▇▇▇▇▇▇▇
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
Purchaser Name NATIONWIDE LIFE AND ANNUITY INSURANCE COMPANY
-------------- ---------------------------------------------
Name in Which Note is Registered Nationwide Life and Annuity Insurance Company
Note Registration Number; Principal R-13; $2,500,000
Amount
Payment on Account of Note
Federal Funds Wire Transfer
Method
The Bank of New York
Account Information ABA No.: ▇▇▇-▇▇▇-▇▇▇
BNF: IOC566
For the Account of: Nationwide Life and Annuity Insurance Company
Attn: P&I Department
Accompanying Information Name of Company: HANDY & ▇▇▇▇▇▇
Description of
Security: 7.31% Senior Notes due April 30, 2004
PPN: 410306 D* 2
Due Date and Application (as among
principal, Make-Whole Amount and
interest) of the payment being made:
Address for Notices Related to Nationwide Life and Annuity Insurance Company
Payments ▇/▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇
Attn: P&I Department
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy to:
Nationwide Life Insurance Company
Attn: Investment Accounting
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (▇-▇▇-▇▇)
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Schedule A-22
92
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
Purchaser Name NATIONWIDE LIFE AND ANNUITY INSURANCE COMPANY
-------------- ---------------------------------------------
Address for all other Notices Nationwide Life and Annuity Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (▇-▇▇-▇▇)
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Corporate Fixed-Income Securities
Other Instructions NATIONWIDE LIFE AND ANNUITY INSURANCE COMPANY
By_______________________
Name:
Title:
Instructions re The Bank of New York
Delivery of Notes One Wall Street
3rd Floor - Window A
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
F/A/O Nationwide Life and Annuity Insurance
Company Account No.: 267961
Tax Identification Number ▇▇-▇▇▇▇▇▇▇
Schedule A-23
93
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
Purchaser Name PROVIDIAN LIFE AND HEALTH INSURANCE COMPANY
-------------- -------------------------------------------
Name in Which Note is Registered Kinsat
Note Registration Number; Principal R-14; $10,000,000
Amount
Payment on Account of Note
Federal Funds Wire Transfer
Method
Bankers -NYC
Account Information ABA No.: ▇▇▇-▇▇▇-▇▇▇
Account No.: ▇▇-▇▇▇-▇▇▇
For Further Credit to: Providian Life and Health Insurance Company
Account No. 099159
Accompanying Information Name of Company: HANDY & ▇▇▇▇▇▇
Description of
Security: 7.31% Senior Notes due April 30, 2004
PPN: 410306 D* 2
Due Date and Application (as among
principal, Make-Whole Amount and
interest) of the payment being made:
Address for Notices Related to Attn: Securities Processing - 11th Floor
Payments Providian Life and Health Insurance Company
c/o Providian Capital Management
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Address for all other Notices Attn: Securities Department - 10th Floor
Providian Life and Health Insurance Company
c/o Providian Capital Management
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Other Instructions PROVIDIAN LIFE AND HEALTH INSURANCE COMPANY
By_______________________
Name:
Title:
Schedule A-24
94
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
Purchaser Name PROVIDIAN LIFE AND HEALTH INSURANCE COMPANY
-------------- -------------------------------------------
Instructions re Bankers Trust Company
Delivery of Notes ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
for the account of
Providian Life and Health Insurance Company,
Account No. 099159
Tax Identification Number ▇▇-▇▇▇▇▇▇▇ (Kinsat)
Schedule A-25
95
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
Purchaser Name AMERICAN BANKERS INSURANCE COMPANY
-------------- ----------------------------------
Name in Which Note is Registered American Bankers Insurance Company
Note Registration Number; Principal R-15; $1,500,000
Amount
Payment on Account of Note
Federal Funds Wire Transfer
Method
CHASE NY/GEOCUST
Account Information ABA #▇▇▇-▇▇▇-▇▇▇
Account #N ▇▇▇▇▇▇▇
Accompanying Information Name of Company: HANDY & ▇▇▇▇▇▇
Description of
Security: 7.31% Senior Notes due April 30, 2004
PPN: 410306 D* 2
Due Date and Application (as among
principal, Make-Whole Amount and
interest) of the payment being made:
Address for Notices Related to American Bankers Insurance Company
Payments Attn: Investments Dept.
▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Address for all other Notices American Bankers Insurance Company
Attn: Investments Dept.
▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Other Instructions AMERICAN BANKERS INSURANCE COMPANY
By_______________________
Name:
Title:
Instructions re Chase Manhattan Bank
Delivery of Notes ▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
(Ground Floor/Receive Window)
Euroclear Number: 94684
Tax Identification Number ▇▇-▇▇▇▇▇▇▇
Schedule A-26
96
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
Purchaser Name AMERICAN BANKERS LIFE ASSURANCE COMPANY
-------------- ---------------------------------------
Name in Which Note is Registered American Bankers Life Assurance Company
Note Registration Number; Principal R-16; $5,000,000
Amount
Payment on Account of Note
Federal Funds Wire Transfer
Method
CHASE NY/GEOCUST
Account Information ABA #▇▇▇-▇▇▇-▇▇▇
Account #N ▇▇▇▇▇▇▇
Accompanying Information Name of Company: HANDY & ▇▇▇▇▇▇
Description of
Security: 7.31% Senior Notes due April 30, 2004
PPN: 410306 D* 2
Due Date and Application (as among
principal, Make-Whole Amount and
interest) of the payment being made:
Address for Notices Related to American Bankers Life Assurance Company
Payments Attn: Investments Dept.
▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Address for all other Notices American Bankers Insurance Company
Attn: Investments Dept.
▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Other Instructions AMERICAN BANKERS LIFE ASSURANCE COMPANY
By_______________________
Name:
Title:
Instructions re Chase Manhattan Bank
Delivery of Notes ▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
(Ground Floor/Receive Window)
Account #N ▇▇▇▇▇▇▇
Euroclear Number 94684
Tax Identification Number ▇▇-▇▇▇▇▇▇▇
Schedule A-27
97
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
Purchaser Name RGA REINSURANCE COMPANY
-------------- -----------------------
Name in Which Note is Registered RGA Reinsurance Company
Note Registration Number; Principal R-17; $6,500,000
Amount
Payment on Account of Note
Federal Funds Wire Transfer
Method
General American Life Insurance Company
Account Information ▇/▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
▇▇▇ #▇▇▇▇▇▇▇▇▇ BNF: IOC566
Attn: P&I Department
Accompanying Information Name of Company: HANDY & ▇▇▇▇▇▇
Description of
Security: 7.31% Senior Notes due April 30, 2004
PPN: 410306 D* 2
Due Date and Application (as among
principal, Make-Whole Amount and
interest) of the payment being made:
Address for Notices Related to Conning Asset Management
Payments Attn: Investment Accounting
▇.▇. ▇▇▇ ▇▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
and
General American Life Insurance Company
▇/▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Address for all other Notices Conning Asset Management
Attn: Securities Division
▇.▇. ▇▇▇ ▇▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
and
General American Life Insurance Company
▇/▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Other Instructions RGA Reinsurance Company
By: Conning Asset Management Company
By: __________________________________
Name:
Title:
Schedule A-28
98
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
Purchaser Name RGA REINSURANCE COMPANY
-------------- -----------------------
Instructions re The Bank of New York
Delivery of Notes Attn: Free Receive
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
For the account of
RGA Reinsurance Company
Account #127709
If problem, call
▇▇▇▇▇▇▇ Del ▇▇▇▇▇ at The Bank of New York
(▇▇▇) ▇▇▇-▇▇▇▇
Tax Identification Number ▇▇-▇▇▇▇▇▇▇
Schedule A-29
99
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
Purchaser Name THE OHIO NATIONAL LIFE INSURANCE COMPANY
-------------- ----------------------------------------
Name in Which Note is Registered The Ohio National Life Insurance Company
Note Registration Number; Principal R-18; $6,500,000
Amount
Payment on Account of Note
Federal Funds Wire Transfer
Method
Star Bank, NA
Account Information ABA #042-000013
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
For credit to The Ohio National Life Insurance Company
Account #▇▇▇-▇▇▇-▇
Accompanying Information Name of Company: HANDY & ▇▇▇▇▇▇
Description of
Security: 7.31% Senior Notes due April 30, 2004
PPN: 410306 D* 2
Due Date and Application (as among
principal, Make-Whole Amount and
interest) of the payment being made:
Address for Notices Related to Ohio National Financial Services
Payments ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Address for all other Notices Ohio National Financial Services
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Other Instructions THE OHIO NATIONAL LIFE INSURANCE COMPANY
By_______________________
Name:
Title:
Instructions re Law Department of Purchaser
Delivery of Notes
Tax Identification Number ▇▇-▇▇▇▇▇▇▇
Schedule A-30
100
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
Purchaser Name SOUTHERN FARM BUREAU LIFE INSURANCE COMPANY
-------------- -------------------------------------------
Name in Which Note is Registered Southern Farm Bureau Life Insurance Company
Note Registration Number; Principal R-19; $5,000,000
Amount
Payment on Account of Note
Federal Funds Wire Transfer
Method
Wachovia Bank of North Carolina
Account Information ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇-▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
ABA #▇▇▇▇▇▇▇▇▇
For further credit to: Account #8730-007153
Southern Farm Bureau Life Insurance Company
Accompanying Information Name of Company: HANDY & ▇▇▇▇▇▇
Description of
Security: 7.31% Senior Notes due April 30, 2004
PPN: 410306 D* 2
Due Date and Application (as among
principal, Make-Whole Amount and
interest) of the payment being made:
Address for Notices Related to Southern Farm Bureau Life Insurance Company
Payments ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, CFA
Tel: 601-981-7422 ext. 506
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Address for all other Notices Southern Farm Bureau Life Insurance Company
▇.▇. ▇▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Investment Department
or by overnight delivery to:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Other Instructions SOUTHERN FARM BUREAU LIFE INSURANCE COMPANY
By_______________________
Name:
Title:
Instructions re Law Department of Purchaser
Delivery of Notes
Schedule A-31
101
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
Purchaser Name SOUTHERN FARM BUREAU LIFE INSURANCE COMPANY
-------------- -------------------------------------------
Tax Identification Number ▇▇-▇▇▇▇▇▇▇
Schedule A-32
102
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
Purchaser Name PROVIDENT MUTUAL LIFE INSURANCE COMPANY
-------------- ---------------------------------------
Name in Which Note is Registered Provident Mutual Life Insurance Company
Note Registration Number; Principal R-20; $2,000,000
Amount
Payment on Account of Note
Federal Funds Wire Transfer
Method
PNC Bank
Account Information ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ABA No.: ▇▇▇-▇▇▇-▇▇▇
For the Account of: Provident Mutual Life Insurance Company
Account No.: ▇▇-▇▇▇▇-▇▇▇▇
Accompanying Information Name of Company: HANDY & ▇▇▇▇▇▇
Description of
Security: 7.31% Senior Notes due April 30, 2004
PPN: 410306 D* 2
Due Date and Application (as among
principal, Make-Whole Amount and
interest) of the payment being made:
Address for Notices Related to ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Treasurer
Address for all other Notices Provident Mutual Life Insurance Company
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Securities Investment Department
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
or if by overnight courier to:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Treasurer
Other Instructions PROVIDENT MUTUAL LIFE INSURANCE COMPANY
By_______________________
Name:
Title:
Instructions re Law Department of Purchaser
Delivery of Notes
Schedule A-33
103
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
Purchaser Name PROVIDENT MUTUAL LIFE INSURANCE COMPANY
-------------- ---------------------------------------
Tax Identification Number 23-099-045-0
Schedule A-34
104
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
Purchaser Name PROVIDENTMUTUAL LIFE AND ANNUITY COMPANY OF AMERICA
-------------- ---------------------------------------------------
Name in Which Note is Registered Providentmutual Life and Annuity Company of America
Note Registration Number; Principal R-21; $2,000,000
Amount
Payment on Account of Note
Federal Funds Wire Transfer
Method
PNC Bank
Account Information ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ABA No.: ▇▇▇-▇▇▇-▇▇▇
For the Account of: Providentmutual Life and Annuity
Company of America
Account No.: ▇▇-▇▇▇▇-▇▇▇▇
Accompanying Information Name of Company: HANDY & ▇▇▇▇▇▇
Description of
Security: 7.31% Senior Notes due April 30, 2004
PPN: 410306 D* 2
Due Date and Application (as among
principal, Make-Whole Amount and
interest) of the payment being made:
Address for Notices Related to ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Treasurer
Address for all other Notices Providentmutual Life and Annuity Company of America
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Securities Investment Department
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
or if by overnight courier to:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Treasurer
Other Instructions PROVIDENTMUTUAL LIFE AND ANNUITY COMPANY OF AMERICA
By_______________________
Name:
Title:
Schedule A-35
105
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
Purchaser Name PROVIDENTMUTUAL LIFE AND ANNUITY COMPANY OF AMERICA
-------------- ---------------------------------------------------
Instructions re Law Department of Purchaser
Delivery of Notes
Tax Identification Number 23-161-908-2
Schedule A-36
106
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
Purchaser Name MID-WESTERN NATIONAL LIFE INSURANCE COMPANY
-------------- -------------------------------------------
Name in Which Note is Registered MAC & Co
Note Registration Number; Principal R-22; $3,000,000
Amount
Payment on Account of Note
Federal Funds Wire Transfer
Method
Federal Reserve Bank of Boston
Account Information ABA # -- ▇▇▇▇▇▇▇▇▇/BOS ▇▇▇▇ ▇▇▇
▇▇▇ # -- ▇▇▇▇▇▇-▇▇▇▇▇▇
For account of: Mid-Western National Life Insurance Company
Account # -- 312V012
Accompanying Information Name of Company: HANDY & ▇▇▇▇▇▇
Description of
Security: 7.31% Senior Notes due April 30, 2004
PPN: 410306 D* 2
Due Date and Application (as among
principal, Make-Whole Amount and
interest) of the payment being made:
Address for Notices Related to Mid-Western National Life Insurance Company
Payments c/o Emerald Capital Group, Ltd.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ -- fax
Address for all other Notices Mid-Western National Life Insurance Company
c/o Emerald Capital Group, Ltd.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ -- fax
Other Instructions MID-WESTERN NATIONAL LIFE INSURANCE COMPANY
By_________________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Managing Director
Emerald Capital Group, Ltd.
Investment Advisor to
Mid-Western National Life Insurance Company
Schedule A-37
107
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
Purchaser Name MID-WESTERN NATIONAL LIFE INSURANCE COMPANY
-------------- -------------------------------------------
Instructions re Mellon Securities Trust Company
Delivery of Notes ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
For account of: Mid-Western National Life Insurance Company
Account # -- 312V02
Tax Identification Number ▇▇-▇▇▇▇▇▇▇
Schedule A-38
108
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
Purchaser Name ▇▇▇▇▇▇▇ ▇▇▇▇▇ LIFE INSURANCE COMPANY
-------------- ------------------------------------
Name in Which Note is Registered ▇▇▇▇▇▇▇ & Co.
Note Registration Number; Principal R-23; $3,000,000
Amount
Payment on Account of Note
Federal Funds Wire Transfer
Method
Private Placements
Account Information Bankers Trust Company
ABA #02101033
Account #▇▇-▇▇▇-▇▇▇
FFC: MLLIFE, a/c #91469
Accompanying Information Name of Company: HANDY & ▇▇▇▇▇▇
Description of
Security: 7.31% Senior Notes due April 30, 2004
PPN: 410306 D* 2
Due Date and Application (as among
principal, Make-Whole Amount and
interest) of the payment being made:
Address for Notices Related to ▇▇▇▇▇▇▇ ▇▇▇▇▇ Life Insurance Company
Payments ▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇ 2-I
Supervisor
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Address for all other Notices ▇▇▇▇▇▇▇ ▇▇▇▇▇ Asset Management
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇
Vice President
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or if by overnight courier to:
▇▇▇▇▇▇▇ ▇▇▇▇▇ Asset Management
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇
Vice President
Other Instructions ▇▇▇▇▇▇▇ ▇▇▇▇▇ LIFE INSURANCE COMPANY
By_______________________
Name:
Title:
Schedule A-39
109
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
Purchaser Name ▇▇▇▇▇▇▇ ▇▇▇▇▇ LIFE INSURANCE COMPANY
-------------- ------------------------------------
Instructions re Law Department of Purchaser
Delivery of Notes
Tax Identification Number ▇▇-▇▇▇-▇▇▇▇
Purchaser Name MODERN WOODMEN OF AMERICA
-------------- -------------------------
Name in Which Note is Registered Modern Woodmen of America
Note Registration Number; Principal R-24; $3,000,000
Amount
Payment on Account of Note
Federal Funds Wire Transfer
Method
▇▇▇▇▇▇ Trust & Savings Bank
Account Information ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ABA No.: ▇▇▇-▇▇▇-▇▇▇
For the Account of: Modern Woodmen of America
Account No.: ▇▇▇-▇▇▇-▇
Accompanying Information Name of Company: HANDY & ▇▇▇▇▇▇
Description of
Security: 7.31% Senior Notes due April 30, 2004
PPN: 410306 D* 2
Due Date and Application (as among
principal, Make-Whole Amount and
interest) of the payment being made:
Address for Notices Related to Modern Woodmen of America
Payments ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Investment Department
Address for all other Notices Modern Woodmen of America
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Attention: Investment Department
Other Instructions MODERN WOODMEN OF AMERICA
By_______________________
Name:
Title:
Instructions re Modern Woodmen of America
Delivery of Notes Attn: Investment Department
Schedule A-40
110
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
Purchaser Name MODERN WOODMEN OF AMERICA
-------------- -------------------------
Tax Identification Number ▇▇-▇▇▇▇▇▇▇
Schedule A-41
111
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
Purchaser Name NATIONAL GUARDIAN LIFE INSURANCE COMPANY
-------------- ----------------------------------------
Name in Which Note is Registered National Guardian Life Insurance Company
Note Registration Number; Principal R-25; $2,000,000
Amount
Payment on Account of Note
Federal Funds Wire Transfer
Method
Firstar Bank Madison
Account Information ▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ABA No.: ▇▇▇▇▇▇▇▇▇
For the Account of: National Guardian Life Insurance Company
Account No.: ▇▇▇-▇▇▇-▇▇▇
Accompanying Information Name of Company: HANDY & ▇▇▇▇▇▇
Description of
Security: 7.31% Senior Notes due April 30, 2004
PPN: 410306 D* 2
Due Date and Application (as among
principal, Make-Whole Amount and
interest) of the payment being made:
Address for Notices Related to Attention: Investment Department
Payments National Guardian Life Insurance Company
▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Address for all other Notices Attention: Investment Department
National Guardian Life Insurance Company
▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Other Instructions NATIONAL GUARDIAN LIFE INSURANCE COMPANY
By_______________________
Name:
Title:
Instructions re National Guardian Life Insurance
Delivery of Notes ▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Schedule A-42
112
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
Purchaser Name NATIONAL GUARDIAN LIFE INSURANCE COMPANY
-------------- ----------------------------------------
Tax Identification Number ▇▇-▇▇▇-▇▇▇▇
Schedule A-43
113
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
Purchaser Name PAN-AMERICAN LIFE INSURANCE COMPANY
-------------- -----------------------------------
Name in Which Note is Registered PAN-AMERICAN LIFE INSURANCE COMPANY
Note Registration Number; Principal R-26; $2,000,000
Amount
Payment on Account of Note
Federal Funds Wire Transfer
Method
First National Bank of Commerce
Account Information ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ABA No.: ▇▇▇▇▇▇▇▇▇
For the Account of: Pan-American Life Insurance Company
Account No.: 1100-29496
Accompanying Information Name of Company: HANDY & ▇▇▇▇▇▇
Description of
Security: 7.31% Senior Notes due April 30, 2004
PPN: 410306 D* 2
Due Date and Application (as among
principal, Make-Whole Amount and
interest) of the payment being made:
Address for Notices Related to Pan-American Life Insurance Company
Payments Attn: Bond & Stock Accounting
28th Floor
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax (▇▇▇) ▇▇▇-▇▇▇▇
Address for all other Notices Pan-American Life Insurance Company
Attn: Investment Department
28th Floor
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Other Instructions PAN-AMERICAN LIFE INSURANCE COMPANY
By_______________________
Name:
Title:
Instructions re Pan-American Life Insurance Company
Delivery of Notes Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
28th Floor
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Schedule A-44
114
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
Purchaser Name PAN-AMERICAN LIFE INSURANCE COMPANY
-------------- -----------------------------------
Tax Identification Number ▇▇-▇▇▇▇▇▇▇
Schedule A-45
115
SCHEDULE B
DEFINED TERMS
As used herein, the following terms have the respective meanings set
forth below or set forth in the Section hereof following such term:
"Adjusted Debt" means, at any time, and with respect to any Person, the
sum (without duplication) of
(a) all Debt of such Person plus
(b) the aggregate notional amount at such time of all Future
Payables Transactions of such Person net of the amount of any cash
pledged to secure the payment obligations in respect of Future Payables
Transactions, minus
(c) an amount equal to 70% of the Fair Market Value of Owned
Precious Metal Inventory of such Person at such time, so long as none
of such Owned Precious Metal Inventory is subject to any Lien in favor
of any Person other than the Company or a Restricted Subsidiary.
"Affiliate" means, at any time, and with respect to any Person,
(a) any other Person that at such time directly or indirectly
through one or more intermediaries Controls, or is Controlled by, or is
under common Control with, such first Person, and
(b) any Person beneficially owning or holding, directly or
indirectly, 10% or more of any class of voting or equity interests of
the Company or any Restricted Subsidiary or any corporation of which
the Company and the Restricted Subsidiaries beneficially own or hold,
in the aggregate, directly or indirectly, 10% or more of any class of
voting or equity interests.
As used in this definition, "Control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting Securities, by
contract or otherwise. Unless the context otherwise clearly requires, any
reference to an "Affiliate" is a reference to an Affiliate of the Company.
Schedule B-1
116
"Agreement, this" is defined in Section 17.3.
"Applicable Four Quarter Period" means, as of any time, the period of
four complete consecutive fiscal quarters of the Company then most recently
ended as to which either or both of the following conditions have been met: (i)
45 days have elapsed since the end of such period and (ii) the holders of the
Notes have received the financial statements required to be delivered to them by
Section 7.1(a) or Section 7.1(b), as the case may be, with respect to the last
fiscal quarter of such period.
"Asset Disposition" means any Transfer except:
(a) any
(i) Transfer from a Restricted Subsidiary to the
Company or another Restricted Subsidiary; and
(ii) Transfer from the Company to a Restricted
Subsidiary;
so long as immediately before and immediately after the consummation of
any such Transfer and after giving effect thereto, no Default or Event
of Default exists;
(b) any Transfer (including, without limitation, the Transfer
of Precious Metals) made in the ordinary course of business;
(c) any Transfer of Owned Precious Metal Inventory by the
Company or any Restricted Subsidiary in exchange for consideration
having a Fair Market Value at least equal to that of the Owned Precious
Metal Inventory being Transferred;
(d) any Transfer of Precious Metals by the Company or any
Restricted Subsidiary in connection with a Future Payables Transaction
involving the same quantity of Precious Metals so Transferred;
(e) any Transfer of Property if, as part of the same
transaction or series of transactions, the Company or any Restricted
Subsidiary shall enter into a Capital Lease (as lessee) with respect to
such Property or Property it intends to use for the same purposes;
Schedule B-2
117
(f) the Singapore Joint Venture Asset Disposition; and
(g) the Transfer of Subsidiary Stock of any Unrestricted
Subsidiary.
"Singapore Joint Venture Asset Disposition" means the Transfer, or
series of related Transfers, of all or substantially all of the Company's equity
interest in Handy & ▇▇▇▇▇▇ Manufacturing (Singapore) Pte. Ltd., or all or
substantially all of the assets thereof, but only in respect of the Company's
direct or indirect portion of the Net Proceeds Amount attributable thereto that
does not exceed Seven Million Five Hundred Thousand Dollars ($7,500,000) and the
entire amount of such portion of such Net Proceeds Amount is applied to a
Property Reinvestment Application (whether or not within 180 days before or
after such Transfer).
"Business Day" means any day other than a Saturday, a Sunday or a day
on which commercial banks in New York City are required or authorized to be
closed.
"Capital Lease" means, at any time, a lease with respect to which the
lessee is required concurrently to recognize the acquisition of an asset and the
incurrence of a liability in accordance with GAAP.
"Capital Lease Obligation" means, with respect to any Person and a
Capital Lease, the principal portion of the obligation of such Person as the
lessee under such Capital Lease which would, in accordance with GAAP, appear as
a liability on a balance sheet of such Person.
"Capital Stock" means any class of capital stock, share capital or
similar equity interest of a Person.
"Closing" is defined in Section 3.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, and the rules and regulations promulgated thereunder from time to time.
"Company" is defined in the introductory sentence of this Agreement.
"Confidential Information" is defined in Section 20.
Schedule B-3
118
"Consignment Arrangement" means any financing arrangement by the
Company or any Restricted Subsidiary whereby the Company or such Restricted
Subsidiary acquires possession of Precious Metals from any other Person (other
than the Company or a Restricted Subsidiary), for use in its manufacturing
process, by way of consignment or lease (it being understood that, for purposes
of this Agreement, neither the Company nor any Restricted Subsidiary acquires
any ownership interest in such Precious Metals until such time as it purchases
such Precious Metals in accordance with the terms of such financing
arrangement). In no event shall Consignment Arrangements include any Precious
Metals of any customer of the Company or any Restricted Subsidiary.
"Consolidated Adjusted Cash Flow" means, for any period of four
complete consecutive fiscal quarters of the Company, the sum of
(a) Consolidated Net Income for such period, plus
(b) the amount of all (i) interest expense, (ii) depreciation,
amortization and other non-cash charges, (iii) income taxes, and (iv)
non-recurring charges, but only to the extent deducted in the
determination of Consolidated Net Income for such period, minus
(c) Non-Cash Income (except for Non-Cash Income arising from
the over-funding of pension plans as provided in Statement of Financial
Accounting Standards No. 87) but only to the extent included in the
determination of Consolidated Net Income for such period minus
(d) gains on sales of Owned Precious Metal Inventory (except
for any such gains on sales attributable to Owned Precious Metal
Inventory incorporated in products manufactured by the Company or any
Restricted Subsidiary).
Subject to the next succeeding sentence, Consolidated Adjusted Cash Flow, in
respect of any period of four complete consecutive fiscal quarters of the
Company, shall be determined on the basis that all acquisitions or dispositions
of Subsidiary Stock or other Property acquired or disposed of during such period
occurred on the first day of such period. In addition, as used in Sections 10.3,
10.5, 10.6, 10.7 and 10.10, Consolidated Adjusted Cash Flow with respect to the
Applicable Four Quarter Period referred to in each of such sections shall be
determined on the basis that all acquisitions
Schedule B-4
119
or dispositions of Subsidiary Stock or other Property acquired or disposed of at
any time subsequent to the commencement of such period, and at or prior to the
time of determination referred to in each of such sections, occurred on the
first day of such period.
"Non-Cash Income," in respect of any period, means
(i) the income (or loss) of any Person (other than a
Restricted Subsidiary) in which the Company or any Restricted
Subsidiary has an ownership interest, except to the extent
that any such income has been actually received by the Company
or such Restricted Subsidiary in the form of cash dividends or
similar cash distributions,
(ii) any restoration to income of any contingency
reserve, except to the extent that provision for such reserve
was made out of income accrued during such period,
(iii) any gains resulting from any write-up of any
assets (but not any loss resulting from any write-down of any
assets),
(iv) any gain arising from the acquisition of any
Debt Security, or the extinguishment, under GAAP, of any Debt,
of the Company or any Restricted Subsidiary,
(v) any net income, net loss or gain or loss during
such period from (x) any change in accounting principles in
accordance with GAAP or (y) any prior period adjustments
resulting from any change in accounting principles in
accordance with GAAP, and
(vi) any deferred credit representing the excess of
equity in any Restricted Subsidiary at the date of acquisition
over the cost of investment in such Restricted Subsidiary.
It is understood that Non-Cash Income may be negative.
Schedule B-5
120
"Consolidated Adjusted Debt" means, at any time, Adjusted Debt at such
time as determined for the Company and the Restricted Subsidiaries on a
consolidated basis, after eliminating all offsetting debits and credits between
the Company and the Restricted Subsidiaries and all other items required to be
eliminated in the course of the preparation of consolidated financial statements
of the Company and the Restricted Subsidiaries in accordance with GAAP.
"Consolidated Interest Expense" means, with respect to any period, the
sum (without duplication) of (in each case, eliminating all offsetting debits
and credits between the Company and the Restricted Subsidiaries and all other
items required to be eliminated in the course of the preparation of consolidated
financial statements of the Company and the Restricted Subsidiaries in
accordance with GAAP),
(a) all interest (other than amortization of Debt expense) in
respect of Debt of the Company and the Restricted Subsidiaries
(including imputed interest on Capital Lease Obligations deducted in
determining Consolidated Net Income for such period) for such period as
determined in accordance with GAAP, together with all interest (other
than amortization of Debt expense) capitalized or deferred during such
period and not deducted in determining Consolidated Net Income for such
period; provided that interest on any Debt of the Company or the
Restricted Subsidiaries that accrues at a variable rate based on LIBOR
shall be determined on the basis that LIBOR does not exceed 6.5% per
annum, plus
(b) all debt discount amortized or required to be amortized in
the determination of Consolidated Net Income for such period, plus
(c) in a Future Payables Transaction, the amount by which the
purchase price of Precious Metal to be acquired on a future date
exceeds the price of the Owned Precious Metal Inventory sold in such
transaction, to the extent such excess is attributable to such period
(it being understood that such excess shall be attributed ratably to
each day in the period from the date of such Future Payables
Transaction to and including such future date).
"Consolidated Net Income" means, with reference to any period, the net
income (or loss) of the Company and the Restricted Subsidiaries for such period
(taken as a cumulative
Schedule B-6
121
whole), as determined in accordance with GAAP, after eliminating all offsetting
debits and credits between the Company and the Restricted Subsidiaries and all
other items required to be eliminated in the course of the preparation of
consolidated financial statements of the Company and the Restricted Subsidiaries
in accordance with GAAP; provided, however, that, as used in Section 10.8,
Consolidated Net Income shall be determined without taking into account 50% of
the gains or losses of the Company and the Restricted Subsidiaries arising from
any disposition of Precious Metals outside the ordinary course of their
business.
"Consolidated Net Worth" means, at any time,
(a) the total assets of the Company and the Restricted
Subsidiaries which would be shown as assets on a consolidated balance
sheet of the Company and the Restricted Subsidiaries as of such time
prepared in accordance with GAAP, after eliminating all amounts
properly attributable to minority interests, if any, in the stock and
surplus of Restricted Subsidiaries, minus
(b) the total liabilities of the Company and the Restricted
Subsidiaries which would be shown as liabilities on a consolidated
balance sheet of the Company and its Restricted Subsidiaries as of such
time prepared in accordance with GAAP;
provided, however, that the amount to be included in Consolidated Net Worth in
respect of the Capital Stock of Unrestricted Subsidiaries shall be calculated on
the equity method, and Consolidated Net Worth shall not be increased or
decreased by an amount in excess of $5,000,000 for the sum of the aggregate
amount of such Capital Stock and the aggregate principal amount of all Debt
owing to the Company and the Restricted Subsidiaries by all Unrestricted
Subsidiaries.
"Consolidated Rentals" means, with respect to any period, the aggregate
amount of rental and all other obligations required to be paid during such
period by the Company or any Restricted Subsidiary (a) as lessee under all
leases (other than Capital Leases) of Property or (b) as consignee or lessee
under any Consignment Arrangement (to the extent the rent or other obligations
thereunder are not included in Consolidated Interest Expense) (in each case,
eliminating all offsetting debits and credits between the Company and the
Restricted Subsidiaries and all other items required to be eliminated in
Schedule B-7
122
the course of the preparation of consolidated financial statements of the
Company and the Restricted Subsidiaries in accordance with GAAP), excluding any
amount required to be paid by the lessee (whether or not therein designated as
rental or additional rental) on account of maintenance and repairs, insurance,
taxes, assessments, water rates, reimbursement of expenses, indemnities and
similar charges, provided that if, at the date of determination, any such rental
or other obligations (or portion thereof) are contingent or not otherwise
definitely determinable by the terms of the related lease or Consignment
Arrangement, the amount of such obligations (or such portion thereof) (i) shall
be assumed to be equal to the amount of such obligations for the period of 12
consecutive calendar months immediately preceding the date of determination or
(b) if the related lease or Consignment Arrangement was not in effect during
such preceding 12-month period, shall be the amount estimated by a Senior
Financial Officer of the Company on a reasonable basis and in good faith.
"Debt" means, with respect to any Person, without duplication,
(a) the principal amount of borrowed money that (subject to
the last sentence of this definition) appears on the balance sheet of
such Person as a liability in accordance with GAAP;
(b) the deferred purchase price of Property acquired by such
Person (including, without limitation, all liabilities created or
arising under any conditional sale or other title retention agreement
with respect to any such Property) that (subject to the last sentence
of this definition) appears on the balance sheet of such Person as a
liability in accordance with GAAP;
(c) its Capital Lease Obligations;
(d) all liabilities for the principal amount of borrowed money
of any other Person that is secured by any Lien with respect to any
Property owned by such Person (whether or not it has assumed or
otherwise become liable for such liabilities); and
(e) any Guaranty of such Person with respect to liabilities of
a type described in any of paragraphs (a) through (d) hereof.
Schedule B-8
123
In no event shall "Debt" include Consignment Arrangements, Future Payables
Transactions or accounts payable arising in the ordinary course of business of
the Company and the Restricted Subsidiaries.
Debt of any Person shall include all obligations of such Person of the character
described in paragraphs (a) through (e) to the extent such Person remains
legally liable in respect thereof notwithstanding that any such obligation is
deemed to be extinguished under GAAP.
"Debt Prepayment Application" means, with respect to any Transfer of
Property, the application by the Company or the Restricted Subsidiaries of cash
in an amount equal to all or any portion of the Net Proceeds Amount with respect
to such Transfer to pay Senior Debt or the obligations under any Future Payables
Transaction (other than Senior Debt owing to the Company, any of the Restricted
Subsidiaries or any Affiliate and Debt in respect of any revolving credit or
similar credit facility providing the Company or any of the Restricted
Subsidiaries with the right to obtain loans or other extensions of credit from
time to time, except to the extent that in connection with such payment of Debt
the availability of credit under such credit facility is permanently reduced by
an amount not less than the amount of such proceeds applied to the payment of
such Debt). In the course of making such application to the payment of Senior
Debt (but not any such application to the obligations under any Future Payables
Transaction) the Company shall offer to repurchase, at par, from each holder of
Notes the lesser of (x) the entire outstanding principal amount of such holder's
Notes or (y) a portion of such holder's Notes equal to the Noteholders' Share of
the Net Proceeds Amount multiplied by a fraction of which the numerator is the
outstanding principal amount of such holder's Notes and the denominator is the
aggregate outstanding principal amount of all Notes. Any such offer which is not
accepted within 30 days shall be deemed to have lapsed and the Company shall
forthwith apply any portion of the Net Proceeds Amount not applied to the
acquisition of Notes to the prepayment of other Senior Debt. "Noteholders' Share
of the Net Proceeds Amount" means, in respect of any Net Proceeds Amount to be
applied towards the repayment of Senior Debt, an amount equal to the result of
(I) such Net Proceeds Amount multiplied by (II) a fraction, of which the
numerator is the aggregate outstanding principal amount of all Notes and the
denominator is the aggregate outstanding principal amount of all Senior Debt
(including, without
Schedule B-9
124
limitation, the Notes), in each case immediately prior to such prepayment.
"Default" means an event or condition the occurrence or existence of
which would, with the lapse of time or the giving of notice or both, become an
Event of Default.
"Default Rate" means that rate of interest that is 1% per annum above
the rate of interest stated in clause (a) of the first paragraph of the Notes.
"Disposition Value" means, at any time, with respect to any Property
(a) in the case of Property that does not constitute
Subsidiary Stock, the net book value thereof, valued at the time of
such disposition in good faith by the Company, and
(b) in the case of Property that constitutes Subsidiary Stock,
an amount equal to that percentage of the net book value of the net
assets of the Restricted Subsidiary that issued such stock as is equal
to the percentage that the net book value of such Subsidiary Stock
represents of the net book value of all of the outstanding capital
stock of such Restricted Subsidiary (assuming, in making such
calculations, that all Securities convertible into such capital stock
are so converted and giving full effect to all transactions that would
occur or be required in connection with such conversion) determined at
the time of the disposition thereof, in good faith by the Company.
"Environmental Laws" means any and all Federal, state, local, and
foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or
governmental restrictions relating to pollution and the protection of the
environment or the release of any materials into the environment, including but
not limited to those related to hazardous substances or wastes, air emissions
and discharges to waste or public systems.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the rules and regulations promulgated thereunder
from time to time in effect.
Schedule B-10
125
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that is treated as a single employer together with the Company
under section 414 of the Code.
"Event of Default" is defined in Section 11.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time.
"Fair Market Value" means, at any time and with respect to any
Property, the sale value of such Property that would be realized in an
arm's-length sale at such time between an informed and willing buyer and an
informed and willing seller (neither being under a compulsion to buy or sell).
For purposes of determining the Fair Market Value of any Precious Metals as of
any date of determination, the Company may base such value on the average of the
prices of such metal, as published by the Company (or, if not so published, by
the London P.M. Fix) on each day during the three month period ending on such
date of determination.
"Future Payables Transaction" means, as of any date, a financing
arrangement of the Company or any Restricted Subsidiary involving the sale of
Precious Metals actually owned by the Company as of such date and the
contemporaneous purchase, on a future payment and delivery basis, by the Company
or such Restricted Subsidiary of a substantially equivalent quantity of Precious
Metals of the same type.
"GAAP" means generally accepted accounting principles as in effect from
time to time in the United States of America.
"Governmental Authority" means
(a) the government of
(i) the United States of America or any state or
other political subdivision thereof, or
(ii) any jurisdiction in which the Company or any
Subsidiary conducts all or any part of its business, or that
asserts jurisdiction over any Properties of the Company or any
Subsidiary, or
(b) any entity exercising executive, legislative, judicial,
regulatory or administrative functions of, or pertaining to, any such
government.
Schedule B-11
126
"Guaranty" means, with respect to any Person, any obligation (except
the endorsement in the ordinary course of business of negotiable instruments for
deposit or collection) of such Person guaranteeing or in effect guaranteeing any
Debt of any other Person in any manner, whether directly or indirectly,
including, without limitation, obligations incurred through an agreement,
contingent or otherwise, by such Person:
(a) to purchase such Debt or any Property constituting
security therefor;
(b) to advance or supply funds (i) for the purchase or payment
of such Debt, 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 Debt;
(c) to lease Properties or to purchase Properties or services
primarily for the purpose of assuring the owner of such Debt of the
ability of any other Person to make
payment of the Debt; or
(d) otherwise to assure the owner of such Debt against loss in
respect thereof.
In any computation of the Debt of the obligor under any Guaranty, the Debt that
is the subject of such Guaranty shall be assumed to be direct obligations of
such obligor.
"Hazardous Material" means any and all pollutants, toxic or hazardous
wastes or any other substances that might pose a hazard to health or safety, the
removal of which may be required or the generation, manufacture, refining,
production, processing, treatment, storage, handling, transportation, transfer,
use, disposal, release, discharge, spillage, seepage, or filtration of which is
or shall be restricted, prohibited or penalized by any applicable law
(including, without limitation, asbestos, urea formaldehyde foam insulation and
polychlorinated biphenyls).
"holder" means, with respect to any Note, the Person in whose name such
Note is registered in the register maintained by the Company pursuant to Section
13.1.
Schedule B-12
127
"Institutional Investor" means (a) any original purchaser of a Note or
any of its Affiliates and (b) any bank, trust company, savings and loan
association or other financial institution, any pension plan, any investment
company, any insurance company, any broker or dealer, or any other similar
financial institution or entity, regardless of legal form.
"LIBOR" means any interest rate based on the per annum London interbank
offered rate for deposits of United States dollars.
"Lien" means, with respect to any Person, any mortgage, lien, pledge,
charge, security interest or other encumbrance, or any interest or title of any
vendor, lessor, lender or other secured party to or of such Person under any
conditional sale or other title retention agreement or Capital Lease, upon or
with respect to any Property or asset of such Person.
"Make-Whole Amount" is defined in Section 8.6.
"Material" means material in relation to the business, operations,
affairs, financial condition, or Properties of the Company and its Subsidiaries
taken as a whole.
"Material Adverse Effect" means a material adverse effect on (a) the
business, operations, affairs, financial condition or Properties of the Company
and its Subsidiaries taken as a whole, or (b) the ability of the Company to
perform its obligations under this Agreement and the Notes, or (c) the validity
or enforceability of this Agreement or the Notes.
"Material Restricted Subsidiary" means a Restricted Subsidiary owning
Property having a net book value equal to or greater than five percent (5%) of
Consolidated Net Worth or having revenues equal to or greater than five percent
(5%) of the consolidated revenues of the Company and the Restricted
Subsidiaries, after eliminating all offsetting debits and credits between the
Company and the Restricted Subsidiaries and all other items required to be
eliminated in the course of the preparation of consolidated financial statements
of the Company and the Restricted Subsidiaries in accordance with GAAP.
"Memorandum" is defined in Section 5.3.
"Multiemployer Plan" means any Plan that is a "multiemployer plan" (as
such term is defined in section 4001(a)(3) of ERISA).
Schedule B-13
128
"Net Proceeds Amount" means, with respect to any Transfer of any
Property by any Person, an amount equal to:
(a) the aggregate amount of the consideration (valued at the
Fair Market Value of such consideration at the time of the consummation
of such Transfer) received by such Person in respect of such Transfer,
minus
(b) all reasonable out-of-pocket costs, fees, commissions
and other expenses incurred by such Person in connection with such
Transfer and income taxes paid or reasonably estimated to be payable in
connection therewith; minus
(c) all obligations required to be paid by the Company or a
Restricted Subsidiary as a result of such Transfer.
"Non-US Pension Plan" means any plan, fund or other similar program
(a) established or maintained outside of the United States of
America by any one or more of the Company or the Subsidiaries primarily
for the benefit of employees (substantially all of whom are not
citizens of, and do not reside within, the United States of America) of
the Company or such Subsidiaries which plan, fund or other similar
program provides for retirement income for such employees or results in
a deferral of income for such employees in contemplation of retirement,
and
(b) not subject to ERISA.
"Notes" is defined in Section 1.
"Officer's Certificate" means a certificate of a Senior Financial
Officer or of any other officer of the Company whose responsibilities extend to
the subject matter of such certificate.
"Other Agreements" is defined in Section 2.
"Other Purchasers" is defined in Section 2.
"Owned Precious Metal Inventory" means all Precious Metals acquired by
the Company or a Restricted Subsidiary in a Future Payables Transaction and all
Precious Metals owned by the Company or any Restricted Subsidiary up to an
Schedule B-14
129
aggregate amount of ounces for each type of Precious Metal as set forth below:
Gold - 116,076
Silver - 14,749,005
Platinum - 943
Palladium - 80,755
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA or any successor thereto.
"Person" means an individual, partnership, corporation, limited
liability company, association, trust, unincorporated organization, or a
government or agency or political subdivision thereof.
"Plan" means an "employee benefit plan" (as defined in section 3(3) of
ERISA) that is or, within the preceding five years, has been established or
maintained, or to which contributions are or, within the preceding five years,
have been made or required to be made, by the Company or any ERISA Affiliate or
with respect to which the Company or any ERISA Affiliate may have any liability.
"Precious Metals" means any precious metals, including, without
limitation, gold, silver, palladium and platinum.
"Priority Debt" means, without duplication, at any time, the sum of
(a) all Debt of the Company and the Restricted Subsidiaries
secured by any Lien with respect to any Property owned by the Company
or any of the Restricted Subsidiaries permitted by paragraph (xi) of
Section 10.7(a) (other than Debt owing to the Company or a Restricted
Subsidiary), plus
(b) all Adjusted Debt of the Restricted Subsidiaries (other
than Debt in respect of Capital Lease Obligations, pollution control
bonds or industrial revenue bonds) outstanding at such time (other than
Debt owing to the Company or another Restricted Subsidiary), plus
Schedule B-15
130
(c) all Attributable Debt of the Company and the Restricted
Subsidiaries (other than Attributable Debt owing to the Company or a
Restricted Subsidiary).
"Attributable Debt" means, at any time, as to any particular
lease relating to a Sale-and-Leaseback Transaction (other than a
Sale-and-Leaseback Transaction the Net Proceeds Amount in respect of
which is to be applied as described in Section 10.10(b)), the present
value of all base rentals required to be paid by the Company or any
Restricted Subsidiary under such lease during the remaining term
thereof (determined in accordance with GAAP using a discount factor
equal to the interest rate implicit in such lease if known or, if not
known, 8% per annum), provided, however, that if such lease is a
non-recourse lease, Attributable Debt shall mean the lesser of (x) such
present value or (y) the Fair Market Value of the Property subject to
such transaction as determined at such time by the Company in good
faith. As used in this definition, "base rentals" means all rentals
payable by a lessee under a lease less all amounts required to be paid
by the lessee in respect of maintenance and repairs, insurance, taxes,
assessments, water rates, reimbursement of expenses, indemnities and
similar charges.
"Property or Properties" means, unless otherwise specifically limited,
real or personal property of any kind, tangible or intangible, ▇▇▇▇▇▇ or
inchoate.
"Property Reinvestment Application" means, with respect to any Transfer
of Property, the application of, or the entering into of an agreement to apply,
an amount equal to all or any portion of the Net Proceeds Amount with respect to
such Transfer to the acquisition or construction by the Company or any
Restricted Subsidiary of assets of the Company or any Restricted Subsidiary to
be used in the business of such Person, to the acquisition of a business or of
all or substantially all of the assets of another Person, or to the acquisition
of equity interests in a Person that becomes a Restricted Subsidiary as a result
thereof; provided, however, that, with respect to any such agreement to apply,
immediately after such agreement shall be entered into, the Unapplied Portions
of the Net Proceeds Amounts for all Asset Dispositions shall not exceed 30% of
the Company's consolidated assets. Any Transfer which is, in whole or in part, a
barter Transfer of Property for the assets, business or equity interests
referred to above shall be automatically
Schedule B-16
131
deemed to be a Property Reinvestment Application to the extent of the assets,
business or equity interests received.
"PTE" is defined in Section 6.2.
"QPAM Exemption" means Prohibited Transaction Class Exemption 84-14
issued by the United States Department of Labor.
"Reinvestment Notice" is defined in Section 10.3.
"Required Holders" means, at any time, the holder or holders of at
least 662/3% in principal amount of the Notes at the time outstanding (exclusive
of Notes then owned by the Company or any of its Affiliates).
"Responsible Officer" means any Senior Financial Officer and any other
officer of the Company with responsibility for the administration of the
relevant portion of this Agreement.
"Restricted Subsidiary" means, at any time, each Subsidiary then
designated (or deemed designated) a Restricted Subsidiary pursuant to Section
10.11.
"Sale-and-Leaseback Transaction" means any transaction or series of
transactions commencing on or after the date of Closing pursuant to which the
Company or any Restricted Subsidiary shall, more than 180 days after the later
of the acquisition or occupancy of any Property, sell or transfer to any Person
(other than the Company or a Restricted Subsidiary) such Property (other than
any Precious Metals), whether now owned or hereafter acquired with an intent of
leasing it back, and, as part of the same transaction or series of transactions,
the Company or any Restricted Subsidiary shall rent or lease as lessee (other
than pursuant to a Capital Lease), or similarly acquire the right to possession
or use of, such Property or one or more other Properties which it intends to use
for the same purpose or purposes as such Property for a period of 36 months or
longer.
"Security" means "security" as defined by section 2(1) of the
Securities Act.
"Securities Act" means the Securities Act of 1933, as amended from time
to time.
"Senior Debt" means (a) any Debt of the Company (other than any Debt
that is in any manner subordinated in right of
Schedule B-17
132
payment or security in any respect to the Debt evidenced by the Notes) and (b)
any Debt of a Restricted Subsidiary.
"Senior Financial Officer" means the chief financial officer, principal
accounting officer, treasurer or controller of the Company.
"Source" is defined in Section 6.2.
"Subsidiary" means, as to any Person, any corporation, partnership,
joint venture, association or other business entity in which such Person or one
or more of its Subsidiaries or such Person and one or more of its Subsidiaries
owns sufficient equity or voting interests to enable it or them (as a group)
ordinarily, in the absence of contingencies, to elect a majority of the
directors (or Persons performing similar functions) of such entity, and any
partnership or joint venture if more than a 50% interest in the profits or
capital thereof is owned by such Person or one or more of its Subsidiaries or
such Person and one or more of its Subsidiaries (unless such partnership or
joint venture can and does ordinarily take major business actions without the
prior approval of such Person or one or more of its Subsidiaries). Unless the
context otherwise clearly requires, any reference to a "Subsidiary" is a
reference to a Subsidiary of the Company.
"Subsidiary Stock" means, with respect to any Person, the Capital Stock
(or any options or warrants to purchase stock or other Securities exchangeable
for or convertible into stock) of any Restricted Subsidiary of such Person.
"Successor Corporation" is defined in Section 10.2.
"Transfer" means, with respect to any Person, any transaction in which
such Person sells, conveys, transfers, or leases (as lessor) pursuant to a
Capital Lease, ownership of any of its Property (including, without limitation,
Subsidiary Stock and Property sold in a Sale-and-Leaseback Transaction) and
includes any consolidation or merger of a Restricted Subsidiary with any other
Person if the Person surviving such consolidation or merger is not a Restricted
Subsidiary.
Unapplied Portion of the Net Proceeds Amount is defined in Section
10.3.
"Unrestricted Subsidiary" means a Subsidiary that is not a Restricted
Subsidiary.
Schedule B-18
133
EXHIBIT 1
FORM OF NOTE
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OF THE UNITED STATES OF AMERICA AND MAY NOT BE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION
THEREFROM UNDER SUCH ACT, EXCEPT UNDER CIRCUMSTANCES WHERE
NEITHER SUCH REGISTRATION NOR SUCH AN EXEMPTION IS REQUIRED BY LAW.
HANDY & ▇▇▇▇▇▇
7.31% SENIOR NOTE DUE APRIL 30, 2004
No. R-___ [Date]
$_______ PPN 410306 D* 2
FOR VALUE RECEIVED, the undersigned, HANDY & ▇▇▇▇▇▇ (herein called the
"Company"), a corporation organized and existing under the laws of the State of
New York, hereby promises to pay to ________________, or registered assigns, the
principal sum of _________________________ DOLLARS ($_________) on April 30,
2004, with interest (computed on the basis of a 360-day year of twelve 30-day
months) (a) on the unpaid balance thereof at the rate of 7.31% per annum from
the date hereof, payable semiannually on the 30th day of April and October in
each year, commencing with the later of October 30, 1997 or the payment date
next succeeding the date hereof, until the principal hereof shall have become
due and payable, and (b) to the extent permitted by law on any overdue payment
(including any overdue prepayment) of principal, any overdue payment of interest
and any overdue payment of any Make-Whole Amount (as defined in the Note
Purchase Agreements referred to below), payable semiannually as aforesaid (or,
at the option of the registered holder hereof, on demand), at a rate per annum
from time to time equal to 8.31%.
Payments of principal of, interest on and any Make-Whole Amount with
respect to this Note are to be made in lawful money of the United States of
America at the address shown in the register maintained by the Company for such
purpose or at such other place as the Company shall have designated by written
notice to the holder of this Note as provided in the Note Purchase Agreements
referred to below.
Exhibit 1-1
134
This Note is one of a series of Senior Notes (herein called the
"Notes") issued pursuant to separate Note Purchase Agreements, dated as of April
17, 1997 (as from time to time amended, the "Note Purchase Agreements"), between
the Company and the respective purchasers named therein and is entitled to the
benefits thereof. Each holder of this Note will be deemed, by its acceptance
hereof, to have made the representations set forth in Section 6 of the Note
Purchase Agreements and to be bound by the terms thereof (including, without
limitation, the confidentiality provisions in Section 20 thereof).
This Note is a registered Note and, as provided in the Note Purchase
Agreements, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Company may treat the person in whose name this
Note is registered as the owner hereof for the purpose of receiving payment and
for all other purposes, and the Company will not be affected by any notice to
the contrary.
The entire principal amount of this Note is due on the maturity date
hereof. This Note is also subject to optional prepayment, in whole or from time
to time in part, at the times and on the terms specified in the Note Purchase
Agreements, but not otherwise.
If an Event of Default, as defined in the Note Purchase Agreements,
occurs and is continuing, the principal of this Note may be declared or
otherwise become due and payable in the manner, at the price (including any
applicable Make-Whole Amount) and with the effect provided in the Note Purchase
Agreements.
THIS NOTE AND THE NOTE PURCHASE AGREEMENTS ARE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, EXCLUDING
CHOICE-OF-LAW PRINCIPLES OF THE LAW OF SUCH STATE THAT WOULD REQUIRE THE
APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN SUCH STATE.
HANDY & ▇▇▇▇▇▇
Exhibit 1-2
135
By _____________________________
Name:
Title:
Exhibit 1-3
136
EXHIBIT 4.4(a)
FORM OF OPINION OF COUNSEL TO THE COMPANY
Exhibit 4.4(a)-1
137
EXHIBIT 4.4(b)
FORM OF OPINION OF SPECIAL COUNSEL TO THE PURCHASERS
Exhibit 4.4(b)-1