Exhibit 10.1
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INSITUFORM TECHNOLOGIES, INC.
$65,000,000 5.29% Senior Notes, Series 2003-A,
due April 24, 2013
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NOTE PURCHASE AGREEMENT
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DATED AS OF APRIL 24, 2003
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TABLE OF CONTENTS
SECTION HEADING PAGE
SECTION 1. AUTHORIZATION OF NOTES............................................................... 1
SECTION 2. SALE AND PURCHASE OF NOTES........................................................... 1
Section 2.1. Series 2003-A Notes.................................................................. 1
Section 2.2. Additional Series of Notes........................................................... 1
Section 2.3. Subsidiary Guaranty.................................................................. 2
SECTION 3. CLOSING.............................................................................. 3
SECTION 4. CONDITIONS TO CLOSING................................................................ 3
Section 4.1. Representations and Warranties....................................................... 3
Section 4.2. Performance; No Default.............................................................. 4
Section 4.3. Compliance Certificates.............................................................. 4
Section 4.4. Opinions of Counsel.................................................................. 4
Section 4.5. Purchase Permitted by Applicable Law, Etc............................................ 5
Section 4.6. Related Transactions................................................................. 5
Section 4.7. Payment of Special Counsel Fees...................................................... 5
Section 4.8. Private Placement Number............................................................. 5
Section 4.9. Changes in Corporate Structure....................................................... 5
Section 4.10. Subsidiary Guaranty.................................................................. 5
Section 4.11. Intercreditor Agreement.............................................................. 5
Section 4.12. Proceedings and Documents............................................................ 6
Section 4.13. Conditions to Issuance of Additional Notes........................................... 6
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY........................................ 6
Section 5.1. Organization; Power and Authority.................................................... 6
Section 5.2. Authorization, Etc................................................................... 7
Section 5.3. Disclosure........................................................................... 7
Section 5.4. Organization and Ownership of Shares of Subsidiaries;
Affiliates....................................................................... 7
Section 5.5. Financial Statements................................................................. 8
Section 5.6. Compliance with Laws, Other Instruments, Etc......................................... 8
Section 5.7. Governmental Authorizations, Etc..................................................... 8
Section 5.8. Litigation; Observance of Statutes and Orders........................................ 9
Section 5.9. Taxes................................................................................ 9
Section 5.10. Title to Property; Leases............................................................ 9
Section 5.11. Licenses, Permits, Etc............................................................... 9
Section 5.12. Compliance with ERISA................................................................ 10
Section 5.13. Private Offering by the Company...................................................... 11
Section 5.14. Use of Proceeds; Margin Regulations.................................................. 11
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Section 5.15. Existing Indebtedness; Future Liens.................................................. 11
Section 5.16. Foreign Assets Control Regulations, Etc.............................................. 12
Section 5.17. Status under Certain Statutes........................................................ 12
Section 5.18. Environmental Matters................................................................ 12
SECTION 6. REPRESENTATIONS OF THE PURCHASER..................................................... 13
Section 6.1. Purchase for Investment.............................................................. 13
Section 6.2. Source of Funds...................................................................... 13
SECTION 7. INFORMATION AS TO COMPANY............................................................ 14
Section 7.1. Financial and Business Information................................................... 14
Section 7.2. Officer's Certificate................................................................ 17
Section 7.3. Inspection........................................................................... 18
SECTION 8. PAYMENT OF THE NOTES................................................................. 18
Section 8.1. Required Payments.................................................................... 18
Section 8.2. Optional Prepayments with Make-Whole Amount.......................................... 18
Section 8.3. Allocation of Partial Prepayments.................................................... 19
Section 8.4. Maturity; Surrender, Etc............................................................. 19
Section 8.5. Purchase of Notes.................................................................... 19
Section 8.6. Make-Whole Amount for the Series 2003-A Notes........................................ 19
SECTION 9. AFFIRMATIVE COVENANTS................................................................ 21
Section 9.1. Compliance with Law.................................................................. 21
Section 9.2. Insurance............................................................................ 21
Section 9.3. Maintenance of Properties............................................................ 21
Section 9.4. Payment of Taxes and Claims.......................................................... 21
Section 9.5. Corporate Existence, Etc............................................................. 22
Section 9.6. Designation of Subsidiaries.......................................................... 22
Section 9.7. Additional Subsidiary Guarantors..................................................... 22
SECTION 10. NEGATIVE COVENANTS................................................................... 23
Section 10.1. Consolidated Net Worth............................................................... 23
Section 10.2. Limitation on Consolidated Indebtedness.............................................. 23
Section 10.4. Fixed Charge Coverage Ratio.......................................................... 23
Section 10.4. Limitation on Liens.................................................................. 23
Section 10.5. Sales of Assets...................................................................... 25
Section 10.6. Merger, Consolidation and Sale of Stock.............................................. 26
Section 10.7. Nature of Business................................................................... 27
Section 10.8. Transactions with Affiliates......................................................... 28
SECTION 11. EVENTS OF DEFAULT.................................................................... 28
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SECTION 12. REMEDIES ON DEFAULT, ETC............................................................. 30
Section 12.1. Acceleration......................................................................... 30
Section 12.2. Other Remedies....................................................................... 31
Section 12.3. Rescission........................................................................... 31
Section 12.4. No Waivers or Election of Remedies, Expenses, Etc.................................... 31
SECTION 13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES........................................ 32
Section 13.1. Registration of Notes................................................................ 32
Section 13.2. Transfer and Exchange of Notes....................................................... 32
Section 13.3. Replacement of Notes................................................................. 32
SECTION 14. PAYMENTS ON NOTES.................................................................... 33
Section 14.1. Place of Payment..................................................................... 33
Section 14.2. Home Office Payment.................................................................. 33
SECTION 15. EXPENSES, ETC........................................................................ 34
Section 15.1. Transaction Expenses................................................................. 34
Section 15.2. Survival............................................................................. 34
SECTION 16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT......................... 34
SECTION 17. AMENDMENT AND WAIVER................................................................. 35
Section 17.1. Requirements......................................................................... 35
Section 17.2. Solicitation of Holders of Notes..................................................... 35
Section 17.3. Binding Effect, Etc.................................................................. 35
Section 17.4. Notes Held by Company, Etc........................................................... 36
SECTION 18. NOTICES.............................................................................. 36
SECTION 19. REPRODUCTION OF DOCUMENTS............................................................ 37
SECTION 20. CONFIDENTIAL INFORMATION............................................................. 37
SECTION 21. SUBSTITUTION OF PURCHASER............................................................ 38
SECTION 22. MISCELLANEOUS........................................................................ 38
Section 22.1. Successors and Assigns............................................................... 38
Section 22.2. Payments Due on Non-Business Days.................................................... 38
Section 22.3. Severability......................................................................... 39
Section 22.4. Construction......................................................................... 39
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Section 22.5. Counterparts......................................................................... 39
Section 22.6. Governing Law........................................................................ 39
Signature....................................................................................................... 40
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SCHEDULE A -- INFORMATION RELATING TO PURCHASERS
SCHEDULE B -- DEFINED TERMS
SCHEDULE 4.9 -- Changes in Corporate Structure
SCHEDULE 5.4 -- Subsidiaries of the Company, Ownership of Subsidiary Stock, Affiliates
SCHEDULE 5.5 -- Financial Statements
SCHEDULE 5.8 -- Litigation
SCHEDULE 5.11 -- Licenses, Permits, Etc.
SCHEDULE 5.15 -- Existing Indebtedness; Future Liens
SCHEDULE 10.4 -- Existing Liens
EXHIBIT 1 -- Form of 5.29% Senior Note, Series 2003-A due April 24, 2013
EXHIBIT 2.3(a) -- Form of Subsidiary Guaranty
EXHIBIT 2.3(b) -- Form of Intercreditor Agreement
EXHIBIT 4.4(a) -- Form of Opinion of General Counsel to the Company
EXHIBIT 4.4(b) -- Form of Opinion of Special Counsel to the Company
EXHIBIT 4.4(c) -- Form of Opinion of Special Counsel to the Purchasers
EXHIBIT S -- Form of Supplement to Note Purchase Agreement
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INSITUFORM TECHNOLOGIES, INC.
702 SPIRIT ▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
$65,000,000 5.29% SENIOR NOTES, SERIES 2003-A, DUE APRIL 24, 2013
Dated as of
April 24, 2003
To the Purchasers listed in
the attached Schedule A:
Ladies and Gentlemen:
INSITUFORM TECHNOLOGIES, INC., a Delaware corporation (the "Company"),
agrees with the Purchasers listed in the attached Schedule A (the "Purchasers")
to this Note Purchase Agreement (this "Agreement") as follows:
SECTION 1. AUTHORIZATION OF NOTES.
The Company will authorize the issue and sale of $65,000,000 aggregate
principal amount of its 5.29% Senior Notes, Series 2003-A, due April 24, 2013
(the "Series 2003-A Notes"). The Series 2003-A Notes together with each Series
of Additional Notes which may from time to time be issued pursuant to the
provisions of Section 2.2 are collectively referred to as the "Notes" (such term
shall also include any such notes issued in substitution therefor pursuant to
Section 13 of this Agreement). The Series 2003-A Notes shall be substantially in
the form set out in Exhibit 1, with such changes therefrom, if any, as may be
approved by the Purchasers 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.
SECTION 2. SALE AND PURCHASE OF NOTES.
Section 2.1. Series 2003-A Notes. Subject to the terms and
conditions of this Agreement, the Company will issue and sell to each Purchaser
and each Purchaser will purchase from the Company, at the Closing provided for
in Section 3, Series 2003-A Notes in the principal amount specified opposite
such Purchaser's name in Schedule A at the purchase price of 100% of the
principal amount thereof. The obligations of each Purchaser hereunder are
several and not joint obligations and each Purchaser shall have no obligation
and no liability to any Person for the performance or nonperformance by any
other Purchaser hereunder.
Section 2.2. Additional Series of Notes. The Company may, from
time to time, in its sole discretion but subject to the terms hereof, issue and
sell one or more additional Series of its unsecured promissory notes under the
provisions of this Agreement pursuant to a supplement (a
"Supplement") substantially in the form of Exhibit S; provided that the
aggregate principal amount of Notes of all Series issued under the provisions of
this Agreement shall not exceed $300,000,000. Each additional Series of Notes
(the "Additional Notes") issued pursuant to a Supplement shall be subject to the
following terms and conditions:
(i) each Series of Additional Notes, when so issued,
shall be differentiated from all previous Series by sequential
alphabetical designation inscribed thereon;
(ii) Additional Notes of the same Series may consist of
more than one different and separate tranches and may differ with
respect to outstanding principal amounts, maturity dates, interest
rates and premiums, if any, and price and terms of redemption or
payment prior to maturity, but all such different and separate tranches
of the same Series shall vote as a single class and constitute one
Series;
(iii) each Series of Additional Notes shall be dated the
date of issue, bear interest at such rate or rates, mature on such date
or dates, be subject to such mandatory and optional prepayment on the
dates and at the premiums, if any, have such additional or different
conditions precedent to closing, such representations and warranties
and such additional covenants as shall be specified in the Supplement
under which such Additional Notes are issued and upon execution of any
such Supplement, this Agreement shall be amended (a) to reflect such
additional covenants without further action on the part of the holders
of the Notes outstanding under this Agreement, provided, that any such
additional covenants shall inure to the benefit of all holders of Notes
so long as any Additional Notes issued pursuant to such Supplement
remain outstanding, and (b) to reflect such representations and
warranties as are contained in such Supplement for the benefit of the
holders of such Additional Notes in accordance with the provisions of
Section 16;
(iv) each Series of Additional Notes issued under this
Agreement shall be in substantially the form of Exhibit 1 to Exhibit S
hereto with such variations, omissions and insertions as are necessary
or permitted hereunder;
(v) the minimum principal amount of any Note issued under
a Supplement shall be $100,000, except as may be necessary to evidence
the outstanding amount of any Note originally issued in a denomination
of $100,000 or more;
(vi) all Additional Notes shall constitute Senior Debt of
the Company and shall rank pari passu with all other outstanding Notes;
and
(vii) no Additional Notes shall be issued hereunder if at
the time of issuance thereof and after giving effect to the application
of the proceeds thereof, any Default or Event of Default shall have
occurred and be continuing.
Section 2.3. Subsidiary Guaranty. (a) Subject to the provisions of
Section 2.3(b), the payment by the Company of all amounts due with respect to
the Notes and the performance by the Company of its obligations under this
Agreement will be absolutely and unconditionally guaranteed by the Subsidiary
Guarantors pursuant to the Subsidiary Guaranty. Payments under
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the Subsidiary Guaranty and certain other Guaranties of the Subsidiary
Guarantors shall be shared in accordance with the terms of the Intercreditor
Agreement.
(b) The holders of the Notes agree to discharge and release any
Subsidiary Guarantor from the Subsidiary Guaranty upon the written request of
the Company, provided that (i) such Subsidiary Guarantor has been released and
discharged (or will be released and discharged concurrently with the release of
such Subsidiary Guarantor under the Subsidiary Guaranty) as an obligor and/or a
guarantor under and in respect of all other Indebtedness which has been
guaranteed by such Subsidiary Guarantor, (ii) at the time of such release and
discharge, the Company shall deliver a certificate of a Responsible Officer to
the holders of the Notes to the effect that no Default or Event of Default
exists, and (iii) if any fee or other form of consideration is given to any
other holder of Indebtedness of the Company in connection with such release, the
holders of the Notes shall receive the same consideration.
SECTION 3. CLOSING.
The sale and purchase of the Series 2003-A Notes to be purchased by
each Purchaser shall occur at the offices of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ at 10:00 a.m. Chicago time, at a closing (the
"Closing") on April 24, 2003 or on such other Business Day thereafter on or
prior to April 28, 2003 as may be agreed upon by the Company and the Purchasers.
At the Closing the Company will deliver to each Purchaser the Series 2003-A
Notes to be purchased by such Purchaser in the form of a single Series 2003-A
Note (or such greater number of Series 2003-A Notes in denominations of at least
$100,000 as such Purchaser may request) dated the date of the Closing and
registered in such Purchaser's name (or in the name of such Purchaser's
nominee), against delivery by such Purchaser 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 3750825891, at Bank of America, N.A. in Dallas, Texas, ABA Number
▇▇▇▇▇▇▇▇▇. If at the Closing the Company shall fail to tender such Notes to any
Purchaser as provided above in this Section 3, or any of the conditions
specified in Section 4 shall not have been fulfilled to any Purchaser's
satisfaction, such Purchaser shall, at such Purchaser's election, be relieved of
all further obligations under this Agreement, without thereby waiving any rights
such Purchaser may have by reason of such failure or such nonfulfillment.
SECTION 4. CONDITIONS TO CLOSING.
The obligation of each Purchaser to purchase and pay for the Series
2003-A Notes to be sold to such Purchaser at the Closing is subject to the
fulfillment to such Purchaser's satisfaction, prior to or at the Closing, of the
following conditions:
Section 4.1. Representations and Warranties.
(a) Representations and Warranties of the Company. The
representations and warranties of the Company in this Agreement shall be correct
when made and at the time of Closing.
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(b) Representations and Warranties of the Subsidiary Guarantors.
The representations and warranties of the Subsidiary Guarantors in the
Subsidiary Guaranty shall be correct when made and at the time of Closing.
Section 4.2. Performance; No Default. The Company and each
Subsidiary Guarantor shall have performed and complied with all agreements and
conditions contained in this Agreement, the Subsidiary Guaranty and any other
Note Documents required to be performed or complied with by the Company and each
such Subsidiary Guarantor prior to or at the Closing, and after giving effect to
the issue and sale of the Series 2003-A Notes (and the application of the
proceeds thereof as contemplated by Section 5.14), no Default or Event of
Default shall have occurred and be continuing. Neither the Company nor any
Subsidiary shall have entered into any transaction since the date of the
Memorandum that would have been prohibited by Section 10 hereof had such
Sections applied since such date.
Section 4.3. Compliance Certificates.
(a) Officer's Certificate of the Company. The Company shall have
delivered to such Purchaser an Officer's Certificate, dated the date of the
Closing, certifying that the conditions specified in Sections 4.1(a), 4.2 and
4.9 have been fulfilled.
(b) Secretary's Certificate of the Company. The Company shall have
delivered to such Purchaser a certificate certifying as to the resolutions
attached thereto and other corporate proceedings relating to the authorization,
execution and delivery of the Series 2003-A Notes and this Agreement.
(c) Officer's Certificate of the Subsidiary Guarantors. Each
Subsidiary Guarantor shall have delivered to such Purchaser an Officer's
Certificate, dated the date of the Closing, certifying that the conditions
specified in section 4.1(b), 4.2 and 4.9 have been fulfilled.
(d) Secretary's Certificate of the Subsidiary Guarantors. Each
Subsidiary Guarantor shall have delivered to such Purchaser a certificate
certifying as to the resolutions attached thereto and other corporate
proceedings relating to the authorization, execution and delivery of the
Subsidiary Guaranty.
Section 4.4. Opinions of Counsel. Such Purchaser shall have
received opinions in form and substance satisfactory to such Purchaser, dated
the date of the Closing (a) from ▇▇▇▇▇▇ ▇▇▇▇, General Counsel of the Company,
covering the matters set forth in Exhibit 4.4(a) and covering such other matters
incident to the transactions contemplated hereby as such Purchaser or such
Purchaser's counsel may reasonably request (and the Company hereby instructs its
counsel to deliver such opinion to such Purchaser), (b) from ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
LLP, special counsel for the Company, covering the matters set forth in Exhibit
4.4(b) and covering such other matters incident to the transactions contemplated
hereby as such Purchaser or such Purchaser's counsel may reasonably request (and
the Company hereby instructs its counsel to deliver such opinion to such
Purchaser), and (c) from ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇, the Purchasers' special counsel in
connection with such transactions, substantially in the form set forth in
Exhibit 4.4(c) and
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covering such other matters incident to such transactions as such Purchaser
may reasonably request.
Section 4.5. Purchase Permitted by Applicable Law, Etc. On the
date of Closing each purchase of Series 2003-A Notes shall (a) be permitted by
the laws and regulations of each jurisdiction to which each Purchaser is
subject, without recourse to provisions (such as Section 1405(a)(8) of the New
York Insurance Law) permitting limited investments by insurance companies
without restriction as to the character of the particular investment, (b) not
violate any applicable law or regulation (including, without limitation,
Regulation T, U or X of the Board of Governors of the Federal Reserve System)
and (c) not subject any Purchaser to any tax, penalty or liability under or
pursuant to any applicable law or regulation, which law or regulation was not in
effect on the date hereof. If requested by any Purchaser, such Purchaser shall
have received an Officer's Certificate certifying as to such matters of fact as
such Purchaser may reasonably specify to enable such Purchaser to determine
whether such purchase is so permitted.
Section 4.6. Related Transactions. The Company shall have
consummated the sale of the entire principal amount of the Series 2003-A Notes
scheduled to be sold on the date of Closing pursuant to this Agreement.
Section 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, reasonable charges and reasonable disbursements of
the Purchasers' special counsel referred to in Section 4.4 to the extent
reflected in a statement of such counsel rendered to the Company at least one
Business Day prior to the Closing.
Section 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 Series 2003-A Notes.
Section 4.9. Changes in Corporate Structure. The Company shall not
have changed its jurisdiction of incorporation or, except as reflected in
Schedule 4.9, 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.
Section 4.10. Subsidiary Guaranty. The Subsidiary Guaranty shall
have been duly authorized, executed and delivered by each Subsidiary Guarantor,
shall constitute the legal, valid and binding contract and agreement of each
Subsidiary Guarantor and such Purchaser shall have received a true, correct and
complete copy thereof.
Section 4.11. Intercreditor Agreement. The Intercreditor Agreement
shall have been executed and delivered by each of the Purchasers and the banks
which are parties to the Bank Credit Agreement and any other creditor which
shall have the benefit of a Guaranty by a Subsidiary Guarantor.
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Section 4.12. 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 such Purchaser and such Purchaser's special counsel, and such
Purchaser and such Purchaser's special counsel shall have received all such
counterpart originals or certified or other copies of such documents as such
Purchaser or such Purchaser's special counsel may reasonably request.
Section 4.13. Conditions to Issuance of Additional Notes. The
obligations of the Additional Purchasers to purchase any Additional Notes shall
be subject to the following conditions precedent, in addition to the conditions
specified in the Supplement pursuant to which such Additional Notes may be
issued:
(a) Compliance Certificate. A duly authorized Senior
Financial Officer shall execute and deliver to each Additional
Purchaser and each holder of Notes an Officer's Certificate dated the
date of issue of such Series of Additional Notes stating that such
officer has reviewed the provisions of this Agreement (including any
Supplements hereto) and setting forth the information and computations
(in sufficient detail) required in order to establish whether the
Company is in compliance with the requirements of Sections 10.2 and
10.3 on such date (based upon the financial statements for the most
recent fiscal quarter ended prior to the date of such certificate).
(b) Execution and Delivery of Supplement. The Company and
each such Additional Purchaser shall execute and deliver a Supplement
substantially in the form of Exhibit S hereto.
(c) Representations of Additional Purchasers. Each
Additional Purchaser shall have confirmed in the Supplement that the
representations set forth in Section 6 are true with respect to such
Additional Purchaser on and as of the date of issue of the Additional
Notes.
(d) Execution and Delivery of Guaranty Ratification. Each
Subsidiary Guarantor shall execute and deliver a Guaranty Ratification
in the form attached to the Subsidiary Guaranty.
(e) Execution and Delivery of Intercreditor Agreement.
Each Additional Purchaser shall execute a counterpart of the
Intercreditor Agreement.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to each Purchaser that:
Section 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
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aggregate, reasonably be expected to have a Material Adverse Effect. The Company
has the corporate power and authority to own or hold under lease the properties
it purports to own or hold under lease, to transact the business it transacts
and proposes to transact, to execute and deliver this Agreement and the Notes
and to perform the provisions hereof and thereof.
Section 5.2. Authorization, Etc. This Agreement and the Notes have
been duly authorized by all necessary corporate action on the part of the
Company, and this Agreement constitutes, and upon execution and delivery thereof
each Note will constitute, a legal, valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, except as such
enforceability may be limited by (i) applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally and (ii) general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
Section 5.3. Disclosure. The Company, through its agent, Banc of
America Securities LLC, has delivered to each Purchaser a copy of a Private
Placement Memorandum, dated March, 2003 (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. This Agreement, the Memorandum, the
documents, certificates or other writings delivered to the Purchasers by or on
behalf of the Company in connection with the transactions contemplated hereby
and the financial statements listed in Schedule 5.5, taken as a whole, do not
contain any untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein not misleading in light of the
circumstances under which they were made. Since December 31, 2002, there has
been no change in the financial condition, operations, business or properties of
the Company or any of its Subsidiaries except changes that individually or in
the aggregate could not reasonably be expected to have a Material Adverse
Effect. There is no fact known to the Company that could reasonably be expected
to have a Material Adverse Effect that has not been set forth herein or in the
Memorandum or in the other documents, certificates and other writings delivered
to each Purchaser by or on behalf of the Company specifically for use in
connection with the transactions contemplated hereby.
Section 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 Restricted and Unrestricted Subsidiaries,
showing, as to each Subsidiary, the correct name thereof, the jurisdiction of
its organization, and the percentage of shares of each class of its capital
stock or similar equity interests outstanding owned by the Company and each
other Subsidiary, and all other Investments of the Company and its Subsidiaries,
(ii) to the Company's knowledge, the Company's Affiliates, other than
Subsidiaries, and (iii) the Company's directors and executive officers.
(b) All of the outstanding shares of capital stock or similar
equity interests of each Subsidiary shown in Schedule 5.4 as being owned by the
Company and its Subsidiaries have been validly issued, are fully paid and
nonassessable and are owned by the Company or another Subsidiary free and clear
of any Lien (except as otherwise disclosed in Schedule 5.4).
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(c) Each Subsidiary identified in Schedule 5.4 is a corporation or
other legal entity duly organized, validly existing and in good standing under
the laws of its jurisdiction of organization, and is duly qualified as a foreign
corporation or other legal entity and is in good standing in each jurisdiction
in which such qualification is required by law, other than those jurisdictions
as to which the failure to be so qualified or in good standing could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. Each such Subsidiary has the corporate or other power and
authority to own or hold under lease the properties it purports to own or hold
under lease and to transact the business it transacts and proposes to transact.
(d) No Subsidiary is a party to, or otherwise subject to, any
legal restriction or any agreement (other than this Agreement, the agreements
listed on Schedule 5.4 and customary limitations imposed by corporate law
statutes) restricting the ability of such Subsidiary to pay dividends out of
profits or make any other similar distributions of profits to the Company or any
of its Subsidiaries that owns outstanding shares of capital stock or similar
equity interests of such Subsidiary.
Section 5.5. Financial Statements. The Company has delivered to
each Purchaser copies of the financial statements of the Company and its
Subsidiaries listed on Schedule 5.5. All of said financial statements (including
in each case the related schedules and notes) fairly present in all material
respects the consolidated financial position of the Company and its Subsidiaries
as of the respective dates specified in such 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).
Section 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 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, except for any such default, breach, contravention or violation
which would not reasonably be expected to have a Material Adverse Effect.
Section 5.7. Governmental Authorizations, Etc. To the extent
relevant based upon the accuracy of the representations of each Purchaser set
forth in Sections 6.1 and 6.2 of this Agreement, 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.
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Section 5.8. Litigation; Observance of Statutes and Orders. (a)
Except as disclosed in Schedule 5.8, there are no actions, suits or proceedings
pending or, to the knowledge of the Company, threatened against or affecting the
Company or any Subsidiary or any property of the Company or any Subsidiary in
any court or before any arbitrator of any kind or before or by any Governmental
Authority that, individually or in the aggregate, could reasonably be expected
to have a Material Adverse Effect.
(b) Neither the Company nor any Subsidiary is in default under any
term of any agreement or instrument to which it is a party or by which it is
bound, or any order, judgment, decree or ruling of any court, arbitrator or
Governmental Authority or is in violation of any applicable law, ordinance, rule
or regulation (including without limitation Environmental Laws) of any
Governmental Authority, which default or violation, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.
Section 5.9. Taxes. The Company and its Subsidiaries have filed
all tax returns that are required to have been filed in any jurisdiction, and
have paid all taxes shown to be due and payable on such returns and all other
taxes and assessments levied upon them or their properties, assets, income or
franchises, to the extent such taxes and assessments have become due and payable
and before they have become delinquent, except for any taxes and assessments (a)
the amount of which is not individually or in the aggregate Material or (b) the
amount, applicability or validity of which is currently being contested in good
faith by appropriate proceedings and with respect to which the Company or a
Subsidiary, as the case may be, has established adequate reserves in accordance
with GAAP. The Company knows of no basis for any other tax or assessment that
could reasonably be expected to have a Material Adverse Effect. The charges,
accruals and reserves on the books of the Company and its Subsidiaries in
respect of federal, state or other taxes for all fiscal periods are adequate.
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, 2000.
Section 5.10. Title to Property; Leases. The Company and its
Subsidiaries have good and sufficient title to their respective properties which
the Company and its Subsidiaries own or purport to own that individually or in
the aggregate are Material, including all such properties reflected in the most
recent audited balance sheet referred to in Section 5.5 or purported to have
been acquired by the Company or any Subsidiary after said date (except as sold
or otherwise disposed of in the ordinary course of business), in each case free
and clear of Liens prohibited by this Agreement. All leases that individually or
in the aggregate are Material are valid and subsisting and are in full force and
effect in all material respects.
Section 5.11. Licenses, Permits, Etc. Except as disclosed in
Schedule 5.11,
(a) the Company and its Subsidiaries own or possess all
licenses, permits, franchises, authorizations, patents, copyrights,
service marks, trademarks and trade names, or rights thereto, that
individually or in the aggregate are Material, without known Material
conflict with the rights of others except for those conflicts, that,
individually or in the aggregate, could not have a Material Adverse
Effect;
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(b) to the best knowledge of the Company, no product of
the Company or any of its Subsidiaries infringes in any Material
respect any license, permit, franchise, authorization, patent,
copyright, service ▇▇▇▇, trademark, trade name or other right owned by
any other Person; and
(c) to the best knowledge of the Company, there is no
Material violation by any Person of any right of the Company or any of
its Subsidiaries with respect to any patent, copyright, service ▇▇▇▇,
trademark, trade name or other right owned or used by the Company or
any of its Subsidiaries.
Section 5.12. Compliance with ERISA. (a) The Company and each ERISA
Affiliate have operated and administered each Plan in compliance with all
applicable laws except for such instances of noncompliance as have not resulted
in and could not reasonably be expected to result in a Material Adverse Effect.
Neither the Company nor any ERISA Affiliate has incurred any liability pursuant
to Title I or IV of ERISA or the penalty or excise tax provisions of the Code
relating to employee benefit plans (as defined in Section 3 of ERISA), and no
event, transaction or condition has occurred or exists that could reasonably be
expected to result in the incurrence of any such liability by the Company or any
ERISA Affiliate, or in the imposition of any Lien on any of the rights,
properties or assets of the Company or any ERISA Affiliate, in either case
pursuant to Title I or IV of ERISA or to such penalty or excise tax provisions
or to Section 401(a)(29) or 412 of the Code, other than such liabilities or
Liens as would not be individually or in the aggregate Material.
(b) The present value of the aggregate benefit liabilities under
each of the Plans which are subject to Title IV of ERISA (other than
Multiemployer Plans), determined as of the end of such Plan's most recently
ended plan year on the basis of the actuarial assumptions specified for funding
purposes in such Plan's most recent actuarial valuation report, did not exceed
the aggregate current value of the assets of such Plan allocable to such benefit
liabilities. 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 its ERISA Affiliates have not incurred any
withdrawal liabilities (and are not subject to contingent withdrawal
liabilities) under Section 4201 or 4204 of ERISA in respect of Multiemployer
Plans that individually or in the aggregate are Material.
(d) The expected post-retirement benefit obligation (determined as
of the last day of the Company's most recently ended fiscal year in accordance
with Financial Accounting Standards Board Statement No. 106, without regard to
liabilities attributable to continuation coverage mandated by section 4980B of
the Code) of the Company and its Subsidiaries is not Material or has otherwise
been disclosed in the most recent audited consolidated financial statements of
the Company and its Subsidiaries set forth in Schedule 5.5.
(e) The execution and delivery of this Agreement and the issuance
and sale of the Series 2003-A 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
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of this Section 5.12(e) is made in reliance upon and subject to the accuracy of
each Purchaser's representation in Section 6.2 as to the sources of the funds to
be used to pay the purchase price of the Series 2003-A Notes to be purchased by
such Purchaser.
Section 5.13. Private Offering by the Company. Neither the Company
nor anyone acting on the Company's behalf has offered the Series 2003-A 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 the Purchasers and not more than four other Institutional
Investors, each of which has been offered the Series 2003-A Notes in connection
with a private sale for investment. Neither the Company nor anyone acting on its
behalf has taken, or will take, any action that would subject the issuance or
sale of the Series 2003-A Notes to the registration requirements of Section 5 of
the Securities Act.
Section 5.14. Use of Proceeds; Margin Regulations. The Company will
apply the proceeds of the sale of the Series 2003-A Notes for general corporate
purposes of the Company and its Subsidiaries (including the repayment of
Indebtedness of the Company and its Subsidiaries). No part of the proceeds from
the sale of the Series 2003-A Notes hereunder will be used, directly or
indirectly, for the purpose of buying or carrying any margin stock within the
meaning of Regulation U of the Board of Governors of the Federal Reserve System
(12 CFR 221), or for the purpose of buying or carrying or trading in any
securities under such circumstances as to involve the Company in a violation of
Regulation X of said Board (12 CFR 224) or to involve any broker or dealer in a
violation of Regulation T of said Board (12 CFR 220). Margin stock does not
constitute more than 1% 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 10% of the value of such assets. As used
in this Section, the terms "margin stock" and "purpose of buying or carrying"
shall have the meanings assigned to them in said Regulation U.
Section 5.15. Existing Indebtedness; Future Liens. (a) Except as
described therein, Schedule 5.15 sets forth a complete and correct list of all
outstanding Indebtedness of the Company and its Subsidiaries as of March 31,
2003, since which date, with the exception of payments made in the ordinary
course of business of the Company and its Subsidiaries, there has been no
Material change in the amounts, interest rates, sinking funds, installment
payments or maturities of the Indebtedness of the Company or its Subsidiaries.
Neither the Company nor any Subsidiary is in default and no waiver of default is
currently in effect, in the payment of any principal or interest on any
Indebtedness of the Company or such Subsidiary, and no event or condition exists
with respect to any Indebtedness of the Company or any Subsidiary, that would
permit (or that with notice or the lapse of time, or both, would permit) one or
more Persons to cause such Indebtedness to become due and payable before its
stated maturity or before its regularly scheduled dates of payment.
(b) Except as disclosed in Schedule 5.15, neither the Company nor
any Subsidiary has agreed or consented to cause or permit in the future (upon
the happening of a contingency or otherwise) any of its property, whether now
owned or hereafter acquired, to be subject to a Lien not permitted by Section
10.4.
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Section 5.16. Foreign Assets Control Regulations, Etc. Neither the
sale of the Series 2003-A 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, or is in violation of any
federal statute or Presidential Executive Order, including without limitation
Executive Order 13224 66 Fed. Reg. 49079 (September 25, 2001) (Blocking Property
and Prohibiting Transactions with Persons who Commit, Threaten to Commit or
Support Terrorism). The Company and its Subsidiaries are in compliance in all
material respects with The USA Patriot Act.
Section 5.17. Status under Certain Statutes. Neither the Company
nor any Subsidiary is an "investment company" registered or required to be
registered under the Investment Company Act of 1940, as amended, or is subject
to regulation under the Public Utility Holding Company Act of 1935, as amended,
the ICC Termination Act of 1995, as amended, or the Federal Power Act, as
amended.
Section 5.18. Environmental Matters. Neither the Company nor any
Subsidiary has knowledge of any Material claim or has received any notice of any
Material claim, and no proceeding has been instituted asserting any Material
claim against the Company or any of its Subsidiaries or any of their respective
real properties now owned, leased or operated by any of them, or other assets,
nor, to the knowledge of the Company or any Subsidiary, has any such proceeding
been instituted against any real properties now or formerly owned by the Company
or any of its Subsidiaries alleging damage to the environment or any violation
of any Environmental Laws, except, in each case, such as could not reasonably be
expected to result in a Material Adverse Effect. Except as otherwise disclosed
to each Purchaser in writing:
(a) neither the Company nor any Subsidiary has knowledge
of any facts which would give rise to any claim, public or private, for
violation of Environmental Laws or damage to the environment emanating
from, occurring on or in any way related to real properties or to other
assets now or formerly owned, leased or operated by any of them or
their use, except, in each case, such as could not reasonably be
expected to result in a Material Adverse Effect;
(b) neither the Company nor any of its Subsidiaries has
stored any Hazardous Materials on real properties now or formerly
owned, leased or operated by any of them or has disposed of any
Hazardous Materials in each case in a manner contrary to any
Environmental Laws and in any manner that could reasonably be expected
to result in a Material Adverse Effect; and
(c) all buildings on all real properties now owned,
leased or operated by the Company or any of its Subsidiaries are in
compliance with applicable Environmental Laws, except where failure to
comply could not reasonably be expected to result in a Material Adverse
Effect.
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SECTION 6. REPRESENTATIONS OF THE PURCHASER.
Section 6.1. Purchase for Investment. Each Purchaser represents
that it is purchasing the Series 2003-A Notes for its own account or for one or
more separate accounts maintained by it or for the account of one or more
pension or trust funds and not with a view to the distribution thereof, provided
that the disposition of such Purchaser's or such pension or trust funds'
property shall at all times be within such Purchaser's or such pension or trust
funds' control. Each Purchaser understands that the Series 2003-A Notes have not
been registered under the Securities Act and may be resold only if registered
pursuant to the provisions of the Securities Act or if an exemption from
registration is available, except under circumstances where neither such
registration nor such an exemption is required by law, and that the Company is
not required to register the Series 2003-A Notes.
Section 6.2. Source of Funds. Each Purchaser represents that at
least one of the following statements is an accurate representation as to each
source of funds (a "Source") to be used by it to pay the purchase price of the
Series 2003-A Notes to be purchased by it hereunder:
(a) the Source is an "insurance company general account"
within the meaning of Department of Labor Prohibited Transaction
Exemption ("PTE") 95-60 (issued July 12, 1995) and there is no employee
benefit plan, treating as a single plan all plans maintained by the
same employer or employee organization, with respect to which the
amount of the general account reserves and liabilities for all
contracts held by or on behalf of such plan, exceeds 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 for such Purchaser most recently filed
with such Purchaser's state of domicile; or
(b) the Source is either (i) an insurance company pooled
separate account, within the meaning of PTE 90-1 (issued January 29,
1990), or (ii) a bank collective investment fund, within the meaning of
the PTE 91-38 (issued July 12, 1991) and, except as such Purchaser
prior to the execution and delivery of this Agreement has disclosed to
the Company in writing pursuant to this paragraph (b), no employee
benefit plan or group of plans maintained by the same employer or
employee organization beneficially owns more than 10% of all assets
allocated to such pooled separate account or collective investment
fund; or
(c) the Source constitutes assets of an "investment fund"
(within the meaning of Part V of the QPAM Exemption) managed by a
"qualified professional asset manager" or "QPAM" (within the meaning of
Part V of the QPAM Exemption), no employee benefit plan's assets that
are included in such investment fund, when combined with the assets of
all other employee benefit plans established or maintained by the same
employer or by an affiliate (within the meaning of Section V(c)(1) of
the QPAM Exemption) of such employer or by the same employee
organization and managed by such QPAM, exceed 20% of the total client
assets managed by such QPAM, the conditions of Part I(c) and (g) of the
QPAM Exemption are satisfied, neither the QPAM nor a person controlling
or controlled by the QPAM (applying the definition of "control" in
Section V(e) of the
-▇▇-
▇▇▇▇ ▇▇▇▇▇▇▇▇▇) owns a 5% or more interest in the Company and (i) the
identity of such QPAM and (ii) the names of all employee benefit plans
whose assets are included in such investment fund have been disclosed
to the Company in writing pursuant to this paragraph (c) prior to the
execution and delivery of this Agreement; or
(d) the Source is a governmental plan; or
(e) the Source is one or more employee benefit plans, or
a separate account or trust fund comprised of one or more employee
benefit plans, each of which prior to the execution and delivery of
this Agreement has been identified to the Company in writing pursuant
to this paragraph (e); or
(f) the Source does not include assets of any employee
benefit plan, other than a plan exempt from the coverage of ERISA; or
(g) the Source is an insurance company separate account
maintained solely in connection with the fixed contractual obligations
of the insurance company under which the amounts payable, or credited,
to any employee benefit plan (or its related trust) 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.
If any Purchaser or any Additional Purchaser or any subsequent transferee of the
Notes indicates that such Purchaser or any Additional Purchaser or such
transferee is relying on any representation contained in paragraph (b), (c) or
(e) above, the Company shall deliver on the date of issuance of such Notes and
on the date of any applicable transfer a certificate, which shall either state
that (i) it is neither a party in interest nor a "disqualified person" (as
defined in Section 4975(e)(2) of the Code), with respect to any plan identified
pursuant to paragraphs (b) or (e) above, or (ii) with respect to any plan,
identified pursuant to paragraph (c) above, neither it nor any "affiliate" (as
defined in Section V(c) of the QPAM Exemption) has at such time, and during the
immediately preceding one year, exercised the authority to appoint or terminate
said QPAM as manager of any plan identified in writing pursuant to paragraph (c)
above or to negotiate the terms of said QPAM's management agreement on behalf of
any such identified plan. As used in this Section 6.2, the terms "employee
benefit plan", "governmental plan", "party in interest" and "separate account"
shall have the respective meanings assigned to such terms in Section 3 of ERISA.
SECTION 7. INFORMATION AS TO COMPANY.
Section 7.1. Financial and Business Information. The Company shall
deliver to each holder of Notes that is an Institutional Investor:
(a) Quarterly Statements -- within 60 days after the end
of each quarterly fiscal period in each fiscal year of the Company
(other than the last quarterly fiscal period of each such fiscal year),
duplicate copies of,
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(i) a consolidated balance sheet of the Company
and its Subsidiaries as at the end of such quarter, and
(ii) consolidated statements of income, changes
in shareholders' equity and cash flows of the Company and its
Subsidiaries, for such quarter and (in the case of the second
and third quarters) for the portion of the fiscal year ending
with such quarter,
setting forth in each case in comparative form the figures for the
corresponding periods in the previous fiscal year, all in reasonable
detail, prepared in accordance with GAAP applicable to quarterly
financial statements generally, and certified by a Senior Financial
Officer as fairly presenting, in all material respects, the financial
position of the companies being reported on and their results of
operations and cash flows, subject to changes resulting from normal,
recurring year-end adjustments, provided that delivery within the time
period specified above of copies of the Company's Quarterly Report on
Form 10-Q prepared in compliance with the requirements therefor and
filed with the Securities and Exchange Commission shall be deemed to
satisfy the requirements of this Section 7.1(a);
(b) Annual Statements-- within 105 days after the end of
each fiscal year of the Company, duplicate copies of,
(i) a consolidated balance sheet of the Company
and its Subsidiaries, as at the end of such year, and
(ii) consolidated statements of income, changes
in shareholders' equity and cash flows of the Company and its
Subsidiaries, for such year,
setting forth in each case in comparative form the figures for the
previous fiscal year, all in reasonable detail, prepared in accordance
with GAAP, and accompanied by an opinion thereon of independent
certified public accountants of recognized national standing, which
opinion shall state that such financial statements present fairly, in
all material respects, the financial position of the companies being
reported upon and their results of operations and cash flows and have
been prepared in conformity with GAAP, and that the examination of such
accountants in connection with such financial statements has been made
in accordance with generally accepted auditing standards, and that such
audit provides a reasonable basis for such opinion in the
circumstances, provided that the delivery within the time period
specified above of the Company's Annual Report on Form 10-K for such
fiscal year (together with the Company's annual report to shareholders,
if any, prepared pursuant to Rule 14a-3 under the Exchange Act)
prepared in accordance with the requirements therefor and filed with
the Securities and Exchange Commission shall be deemed to satisfy the
requirements of this Section 7.1(b);
(c) SEC and Other Reports -- promptly upon their becoming
available, one copy of (i) each financial statement, report, notice or
proxy statement sent by the Company or any Subsidiary to public
securities holders generally, and (ii) each regular or
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periodic report, each registration statement (without exhibits except
as expressly requested by such holder), and each prospectus and all
amendments thereto filed by the Company or any Subsidiary with the
Securities and Exchange Commission containing information of a
financial nature and of all press releases and other statements made
available generally by the Company or any Subsidiary to the public
concerning developments that are Material;
(d) Notice of Default or Event of Default -- promptly,
and in any event within five days after a Responsible Officer becomes
aware of the existence of any Default or Event of Default or that any
Person has given any notice or taken any action with respect to a
claimed default hereunder or that any Person has given any notice or
taken any action with respect to a claimed default of the type referred
to in Section 11(g), a written notice specifying the nature and period
of existence thereof and what action the Company is taking or proposes
to take with respect thereto;
(e) ERISA Matters -- promptly, and in any event within
five days after a Responsible Officer becomes aware of any of the
following, a written notice setting forth the nature thereof and the
action, if any, that the Company or an ERISA Affiliate proposes to take
with respect thereto:
(i) with respect to any Plan, any reportable
event, as defined in Section 4043(b) of ERISA and the
regulations thereunder, for which notice thereof has not been
waived pursuant to such regulations as in effect on the date
thereof; or
(ii) the taking by the PBGC of steps to
institute, or the threatening by the PBGC of the institution
of, proceedings under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer,
any Plan, or the receipt by the Company or any ERISA Affiliate
of a notice from a Multiemployer Plan that such action has
been taken by the PBGC with respect to such Multiemployer
Plan; or
(iii) Any event, transaction or condition that
could result in the incurrence of any liability by the Company
or any ERISA Affiliate pursuant to Title I or IV of ERISA or
the imposition of a penalty or excise tax under the provisions
of the Code relating to employee benefit plans, or 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
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other law or regulation that could reasonably be expected to have a
Material Adverse Effect;
(g) Supplements -- promptly and in any event within 10
Business Days after the execution and delivery of any Supplement, a
copy thereof; and
(h) Requested Information -- with reasonable promptness,
such other data and information relating to the business, operations,
affairs, financial condition, assets or properties of the Company or
any of its Subsidiaries or relating to the ability of the Company to
perform its obligations hereunder and under the Notes as from time to
time may be reasonably requested by any such holder of Notes.
Notwithstanding the foregoing, in the event that during the applicable
period one or more Unrestricted Subsidiaries shall either (i) own more than 10%
of the total consolidated assets of the Company and its Subsidiaries, or (ii)
account for more than 10% of the consolidated gross revenues of the Company and
its Subsidiaries, determined in each case in accordance with GAAP, then, within
the respective periods provided in Section 7.1(a) and (b) above, the Company
shall deliver to each holder of Notes that is an Institutional Investor,
unaudited financial statements of the character and for the dates and periods as
in said Sections 7.1(a) and (b) covering such group of Unrestricted Subsidiaries
(on a consolidated basis), together with a consolidating statement reflecting
eliminations or adjustments required to reconcile the financial statements of
such group of Unrestricted Subsidiaries to the financial statements delivered
pursuant to Sections 7.1(a) and (b).
Section 7.2. Officer's Certificate. Each set of financial
statements delivered to a holder of Notes pursuant to Section 7.1(a) or Section
7.1(b) hereof shall be accompanied by a certificate of a Senior Financial
Officer setting forth:
(a) Covenant Compliance -- the information (including
detailed calculations) required in order to establish whether the
Company was in compliance with the requirements of Section 10.1 through
Section 10.3, Section 10.4(l) and Section 10.5 hereof, inclusive,
during the quarterly or annual period covered by the statements then
being furnished (including with respect to each such Section, where
applicable, the calculations of the maximum or minimum amount, ratio or
percentage, as the case may be, permissible under the terms of such
Sections, and the calculation of the amount, ratio or percentage then
in existence); and
(b) Event of Default -- a statement that such officer has
reviewed the relevant terms hereof and has made, or caused to be made,
under his or her supervision, a review of the transactions and
conditions of the Company and its Subsidiaries from the beginning of
the quarterly or annual period covered by the statements then being
furnished to the date of the certificate and that such review shall not
have disclosed the existence during such period of any condition or
event that constitutes a Default or an Event of Default or, if any such
condition or event existed or exists (including, without limitation,
any such event or condition resulting from the failure of the Company
or any Subsidiary to comply with any Environmental Law), specifying the
nature and period of
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existence thereof and what action the Company shall have taken or
proposes to take with respect thereto.
Section 7.3. Inspection. The Company shall permit the
representatives of each holder of Notes that is an Institutional Investor:
(a) No Default -- if no Default or Event of Default then
exists, at the expense of such holder and upon reasonable prior notice
to the Company, to visit the principal executive office of the Company,
to discuss the affairs, finances and accounts of the Company and its
Subsidiaries with the Company's officers, and (with the consent of the
Company, which consent will not be unreasonably withheld) its
independent public accountants, and (with the consent of the Company,
which consent will not be unreasonably withheld) to visit the other
offices and properties of the Company and each Restricted Subsidiary,
all at such reasonable times during normal business hours and as often
as may be reasonably requested in writing; and
(b) Default -- if a Default or Event of Default then
exists, at the expense of the Company, to visit and inspect any of the
offices or properties of the Company or any Restricted 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 (with the consent of the Company, which consent will not
be unreasonably withheld) independent public accountants, all at such
times and as often as may be requested.
SECTION 8. PAYMENT OF THE NOTES.
Section 8.1. Required Payments. The entire principal amount of the
Series 2003-A Notes shall become due and payable on April 24, 2013.
Section 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 of any Series, in an amount not
less than 10% of the aggregate principal amount of the Notes of such Series then
outstanding in the case of a partial prepayment, at 100% of the principal amount
so prepaid, together with interest accrued thereon to the date of such
prepayment, plus the Make-Whole Amount determined for the prepayment date with
respect to such principal amount of each Note of the applicable Series then
outstanding. The Company will give each holder of Notes of the Series to be
prepaid written notice of each optional prepayment under this Section 8.2 not
less than 30 days and not more than 60 days prior to the date fixed for such
prepayment. Each such notice shall specify such date, the aggregate principal
amount of the Notes of the applicable Series to be prepaid on such date, the
principal amount of each Note held by such holder to be prepaid (determined in
accordance with Section 8.3), and the interest to be paid on the prepayment date
with respect to such principal amount being prepaid, and shall be accompanied by
a certificate of a Senior Financial Officer as to the estimated Make-Whole
Amount due in connection with such prepayment (calculated as if the date of such
notice were the date of the prepayment), setting forth the details of such
computation. Two Business Days prior to such prepayment, the Company shall
deliver to each holder of Notes of the Series to be
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prepaid a certificate of a Senior Financial Officer specifying the calculation
of such Make-Whole Amount as of the specified prepayment date.
Section 8.3. Allocation of Partial Prepayments. In the case of
each partial prepayment of the Notes pursuant to the provisions of Section 8.2,
the principal amount of the Notes of the Series to be prepaid shall be allocated
among all of the Notes of such Series at the time outstanding in proportion, as
nearly as practicable, to the respective unpaid principal amounts thereof. All
regularly scheduled partial prepayments made with respect to any Series of
Additional Notes pursuant to any Supplement shall be allocated as provided
therein.
Section 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, or other premium, 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 or other
premium, if any, as aforesaid, interest on such principal amount shall cease to
accrue. Any Note paid or prepaid in full shall be surrendered to the Company and
cancelled and shall not be reissued, and no Note shall be issued in lieu of any
prepaid principal amount of any Note.
Section 8.5. Purchase of Notes. The Company will not and will not
permit any Affiliate to purchase, redeem, prepay or otherwise acquire, directly
or indirectly, any of the outstanding Notes except upon the payment or
prepayment of the Notes of any Series in accordance with the terms of this
Agreement (including any Supplement hereto) and the Notes. The Company will
promptly cancel all Notes acquired by it or any Affiliate pursuant to any
payment, prepayment or purchase of Notes pursuant to any provision of this
Agreement and no Notes may be issued in substitution or exchange for any such
Notes.
Section 8.6. Make-Whole Amount for the Series 2003-A Notes. The
term "Make-Whole Amount" means with respect to a Series 2003-A 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 the Series 2003-A Note, over
the amount of such Called Principal, provided that the Make-Whole Amount may in
no event be less than zero. For the purposes of determining the Make-Whole
Amount, the following terms have the following meanings:
"Called Principal" means, with respect to a Series 2003-A
Note, the principal of the Series 2003-A 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 a Series 2003-A 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
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which interest on the Series 2003-A Note is payable) equal to the
Reinvestment Yield with respect to such Called Principal.
"Reinvestment Yield" means, with respect to the Called
Principal of a Series 2003-A Note, 0.50% plus the yield to maturity
implied by (i) 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 "PX-1"
on the Bloomberg Financial Market Screen (or such other display as may
replace "PX-1" on the Bloomberg Financial Market Screen) for actively
traded U.S. Treasury securities having a maturity equal to the
Remaining Average Life of such Called Principal as of such Settlement
Date, or (ii) if such yields are not reported as of such time or the
yields reported as of such time are not ascertainable, the Treasury
Constant Maturity Series Yields reported, for the latest day for which
such yields have been so reported as of the second Business Day
preceding the Settlement Date with respect to such Called Principal, in
Federal Reserve Statistical Release H.15 (519) (or any comparable
successor publication) for actively traded U.S. Treasury securities
having a constant maturity equal to the Remaining Average Life of such
Called Principal as of such Settlement Date. Such implied yield will be
determined, if necessary, by (a) converting U.S. Treasury ▇▇▇▇
quotations to bond-equivalent yields in accordance with accepted
financial practice and (b) interpolating linearly on a straight line
basis between (1) the actively traded U.S. Treasury security with the
maturity closest to and greater than the Remaining Average Life and (2)
the actively traded U.S. Treasury security with the maturity closest to
and less than the Remaining Average Life.
"Remaining Average Life" means, with respect to any Called
Principal, the number of years (calculated to the nearest one-twelfth
year) obtained by dividing (i) such Called Principal into (ii) the sum
of the products obtained by multiplying (a) the principal component of
each Remaining Scheduled Payment with respect to such Called Principal
by (b) the number of years (calculated to the nearest one-twelfth year)
that will elapse between the Settlement Date with respect to such
Called Principal and the scheduled due date of such Remaining Scheduled
Payment.
"Remaining Scheduled Payments" means, with respect to the
Called Principal of a Series 2003-A Note, all payments of such Called
Principal and interest thereon that would be due after the Settlement
Date with respect to such Called Principal if no payment of such Called
Principal were made prior to its scheduled due date, provided that if
such Settlement Date is not a date on which interest payments are due
to be made under the terms of the Series 2003-A Note, then the amount
of the next succeeding scheduled interest payment will be reduced by
the amount of interest accrued to such Settlement Date and required to
be paid on such Settlement Date pursuant to Section 8.2 or 12.1.
"Settlement Date" means, with respect to the Called Principal
of a Series 2003-A 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.
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SECTION 9. AFFIRMATIVE COVENANTS.
The Company covenants that so long as any of the Notes are outstanding:
Section 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 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.
Section 9.2. Insurance. The Company will, and will cause each of
its Restricted Subsidiaries to, maintain, with financially sound and reputable
insurers, insurance with respect to their respective properties and businesses
against such casualties and contingencies, of such types, on such terms and in
such amounts (including deductibles, co-insurance and self-insurance, if
adequate reserves are maintained with respect thereto) as is customary in the
case of entities of established reputations engaged in the same or a similar
business and similarly situated.
Section 9.3. Maintenance of Properties. The Company will, and will
cause each of its Restricted Subsidiaries to, maintain and keep, or cause to be
maintained and kept, their respective properties in good repair, working order
and condition (other than ordinary wear and tear), so that the business carried
on in connection therewith may be properly conducted at all times, provided that
this Section shall not prevent the Company or any Restricted Subsidiary from
discontinuing the operation and the maintenance of any of its properties if such
discontinuance is desirable in the conduct of its business and the Company has
concluded that such discontinuance could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
Section 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 and assessments have become due and payable
and before they have become delinquent and all claims for which sums have become
due and payable that have or might become a Lien on properties or assets of the
Company or any Subsidiary not permitted by Section 10.4, provided that neither
the Company nor any Subsidiary need pay any such tax or assessment or claims if
(i) the amount, applicability or validity thereof is contested by the Company or
such Subsidiary on a timely basis in good faith and in appropriate proceedings,
and the Company or a Subsidiary has established adequate reserves therefor in
accordance with GAAP on the books of the Company or such Subsidiary or (ii) the
non-filing or nonpayment, as the case may be, of all such taxes and assessments
in the aggregate could not reasonably be expected to have a Material Adverse
Effect.
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Section 9.5. Corporate Existence, Etc. Subject to Sections 10.5
and 10.6, the Company will at all times preserve and keep in full force and
effect its corporate existence, and will at all times preserve and keep in full
force and effect the corporate existence of each of its Restricted Subsidiaries
(unless merged into the Company or another Restricted Subsidiary) and all rights
and franchises of the Company and its Restricted 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.
Section 9.6. Designation of Subsidiaries. The Company may from
time to time cause any Subsidiary to be designated as an Unrestricted Subsidiary
or any Unrestricted Subsidiary to be designated as a Restricted Subsidiary,
provided, however, that at the time of such designation and immediately after
giving effect thereto, (a) no Default or Event of Default would exist under the
terms of this Agreement, and (b) the Company and its Restricted Subsidiaries
would be in compliance with all of the covenants set forth in this Section 9 and
Section 10 if tested on the date of such action and provided, further, that once
a Restricted Subsidiary has been designated as an Unrestricted Subsidiary, it
shall not thereafter be redesignated as a Restricted Subsidiary on more than one
occasion. Within ten (10) days following any designation described above, the
Company will deliver to you a notice of such designation accompanied by a
certificate signed by a Senior Financial Officer of the Company certifying
compliance with all requirements of this Section 9.6 and setting forth all
information required in order to establish such compliance.
Section 9.7. Additional Subsidiary Guarantors. The Company will
cause any Subsidiary which is required by the terms of the Bank Credit Agreement
(or any other agreement pursuant to which Indebtedness for borrowed money of the
Company or any Restricted Subsidiary is outstanding) to become a party to, or
otherwise Guaranty, Indebtedness outstanding under the Bank Credit Agreement or
such other agreement, to enter into the Subsidiary Guaranty and deliver to each
of the holders of the Notes (concurrently with the incurrence of any such
obligation pursuant to the Bank Credit Agreement or such other agreement) the
following items:
(a) a joinder agreement in respect of the Subsidiary
Guaranty;
(b) a certificate signed by an authorized Responsible
Officer of the Company making representations and warranties to the
effect of those contained in Sections 5.4, 5.6 and 5.7, with respect to
such Subsidiary and the Subsidiary Guaranty, as applicable;
(c) an opinion of counsel (who may be in-house counsel
for the Company) addressed to each of the holders of the Notes
satisfactory to the Required Holders, to the effect that the Subsidiary
Guaranty has been duly authorized, executed and delivered by such
additional Subsidiary Guarantor and that the Subsidiary Guaranty
constitutes the legal, valid and binding contract and agreement of such
Subsidiary Guarantor enforceable in accordance with its terms, except
as an enforcement of such terms may be limited by bankruptcy,
insolvency, fraudulent conveyance and similar laws affecting the
enforcement of creditors' rights generally and by general equitable
principles; and
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(d) a counterpart of the Intercreditor Agreement, signed
by such Subsidiary Guarantor and each of the holders of Indebtedness of
the Company or a Restricted Subsidiary which is the beneficiary of the
Guaranty of such Subsidiary Guarantor.
SECTION 10. NEGATIVE COVENANTS.
The Company covenants that so long as any of the Notes are outstanding:
Section 10.1. Consolidated Net Worth. The Company will not, at any
time, permit Consolidated Net Worth to be less than the sum of (i) $218,000,000
plus (ii) 25% of Consolidated Net Income (if positive) on a cumulative basis for
each fiscal quarter ending after December 31, 2002.
Section 10.2. Limitation on Consolidated Indebtedness. The Company
will not at any time permit:
(a) the Consolidated Leverage Ratio to exceed 3.25. to
1.00; provided that in connection with any calculation of Indebtedness
for purposes of determining compliance with this Section 10.2, there
shall be excluded all Indebtedness of the Company and its Restricted
Subsidiaries outstanding under any revolving credit agreement between
the Company and a committed bank or banks if, during the 365-day period
immediately preceding the date of any such calculation of Indebtedness,
there shall have been a period of at least 60 consecutive days on each
day of which Indebtedness of the Company and its Restricted
Subsidiaries outstanding under such revolving credit agreement is equal
to zero by virtue, and solely by virtue, of such Indebtedness having
been paid from general corporate funds of the Company and not from
funds borrowed by the Company or any Restricted Subsidiary pursuant to
any other revolving credit agreement for the purpose of paying such
Indebtedness. If there shall not have been such 60 consecutive day
period on each day of which such Indebtedness was equal to zero, then
and in such event there shall be included in such calculation of
Indebtedness for purposes of this Section 10.2 an amount equal to the
average aggregate amount of all Indebtedness outstanding under such
revolving credit agreement during such preceding 365-day period; and
(b) Priority Debt to exceed 15% of Consolidated Net
Worth.
Section 10.3. Fixed Charge Coverage Ratio. The Company will not at
any time permit the Fixed Charge Coverage Ratio to be less than 2.00 to 1.00.
Section 10.4. Limitation on Liens. The Company will not, and will
not permit any of its 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, or assign or
otherwise convey any right to receive income or profits (unless it makes, or
causes to be made, effective provision whereby the Notes will be equally and
ratably secured with any and all other obligations thereby secured so
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long as such other Indebtedness shall be so secured, such security to be
pursuant to an agreement reasonably satisfactory to the Required Holders and, in
any such case, the Notes shall have the benefit, to the fullest extent that, and
with such priority as, the holders of the Notes may be entitled under applicable
law, of an equitable Lien on such property), except:
(a) Liens for taxes, assessments or other governmental
charges that are not yet due and payable or the payment of which is not
at the time required by Section 9.4;
(b) any attachment or judgment Lien, unless the judgment
it secures shall not, within 60 days after the entry thereof, have been
discharged or execution thereof stayed pending appeal, or shall not
have been discharged within 60 days after the expiration of any such
stay;
(c) Liens incidental to the conduct of business or the
ownership of properties and assets (including landlords', carriers',
warehousemen's, mechanics', materialmen's and other similar Liens for
sums not yet due and payable) and Liens to secure (or to obtain letters
of credit to secure) the performance of bids, tenders, leases, or trade
contracts, or to secure statutory obligations (including obligations
under workers compensation, unemployment insurance and other social
security legislation), surety or appeal bonds or other Liens incurred
in the ordinary course of business and not in connection with the
borrowing of money;
(d) leases or subleases granted to others, easements,
rights-of-way, restrictions and other similar charges or encumbrances,
in each case incidental to the ownership of property or assets or the
ordinary conduct of the business of the Company or any of its
Restricted Subsidiaries, provided that such Liens do not, in the
aggregate, Materially detract from the value of such property;
(e) Liens securing Indebtedness of a Restricted
Subsidiary to the Company or to another Restricted Subsidiary;
(f) Liens existing as of the date of Closing and
reflected in Schedule 10.4;
(g) Liens incidental to minor survey exceptions and
similar Liens on property of the Company and its Restricted
Subsidiaries, provided that such Liens do not, in the aggregate,
Materially detract from the value of such property;
(h) Liens incurred after the date of Closing given to
secure the payment of the purchase price incurred in connection with
the acquisition, construction or improvement of property (other than
accounts receivable or inventory) useful and intended to be used in
carrying on the business of the Company or a Restricted Subsidiary,
including Liens existing on such property at the time of acquisition or
construction thereof, or Liens incurred within 180 days of such
acquisition or the completion of such construction or improvement,
provided that (i) the Lien shall attach solely to the property
acquired, purchased, constructed or improved; (ii) at the time of
acquisition, construction or improvement of such property, the
aggregate amount remaining unpaid on all
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Indebtedness secured by Liens on such property, whether or not assumed
by the Company or a Restricted Subsidiary, shall not exceed the lesser
of (y) the cost of such acquisition, construction or improvement or (z)
the Fair Market Value of such property; and (iii) at the time of such
incurrence and after giving effect thereto, no Default or Event of
Default would exist;
(i) 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
Indebtedness secured thereby shall have been assumed), provided that
(i) no such Lien shall have been created or assumed in contemplation of
such consolidation or merger or such Person's becoming a Restricted
Subsidiary or such acquisition of property, (ii) each such Lien shall
extend solely to the item or items of property so acquired and, if
required by the terms of the instrument originally creating such Lien,
other property which is an improvement to or is acquired for specific
use in connection with such acquired property, and (iii) at the time of
such incurrence and after giving effect thereto, no Default or Event of
Default would exist;
(j) Liens constituting limitations on the disposition or
transfer of the Company's or any Subsidiary's equity investment in a
Joint Venture (if such limitations are reciprocal) or a Subsidiary
inuring to the benefit of Persons owning equity in the same Joint
Venture or Subsidiary;
(k) any extensions, renewals or replacements of any Lien
permitted by the preceding subparagraphs (e), (f), (h) and (i) of this
Section 10.4, provided that (i) no additional property shall be
encumbered by such Liens, (ii) the unpaid principal amount of the
Indebtedness or other obligations secured thereby shall not be
increased in connection with any such extension, renewal or
replacement, (iii) the maturity of the Indebtedness secured thereby
shall not be reduced, and (iv) at such time and immediately after
giving effect thereto, no Default or Event of Default shall have
occurred and be continuing; and
(l) in addition to the Liens permitted by the preceding
subparagraphs (a) through (k), inclusive, of this Section 10.4, Liens
securing Indebtedness of the Company or any Restricted Subsidiary,
provided that at the time of creation, assumption or incurrence of the
Indebtedness secured by any such Lien and after giving effect thereto
and the application of the proceeds thereof, no Default or Event of
Default would exist and all Indebtedness secured by such Lien shall be
otherwise permitted by Section 10.2(b).
Section 10.5. Sales of Assets. The Company will not, and will not
permit any Restricted Subsidiary to, sell, lease or otherwise dispose of any
substantial part (as defined below) of the assets of the Company and its
Restricted Subsidiaries; provided, however, that the Company or any Restricted
Subsidiary may sell, lease or otherwise dispose of assets (including the sale of
Receivables pursuant to Securitization Transactions) constituting a substantial
part of the assets
-25-
of the Company and its Restricted Subsidiaries if such assets are sold in an
arms length transaction and, at such time and after giving effect thereto, no
Default or Event of Default shall have occurred and be continuing and an amount
equal to the Net Proceeds received from such sale, lease or other disposition
shall be used within 365 days of such sale, lease or disposition, in any
combination:
(1) to acquire productive assets used or useful in
carrying on the business of the Company and its Restricted Subsidiaries
and having a value at least equal to the value of such assets sold,
leased or otherwise disposed of; or
(2) to prepay or retire Senior Indebtedness of the
Company and/or its Restricted Subsidiaries.
Any offer of prepayment of the Notes pursuant to this Section 10.5
shall be made by the Company to holders of Notes of each Series in accordance
with the provisions of Section 8 hereof; provided that if any Notes are prepaid
pursuant to this Section 10.5, the Notes of each Series shall share in such
prepayment ratably.
As used in this Section 10.5, a sale, lease or other disposition of
assets shall be deemed to be a "substantial part" of the assets of the Company
and its Restricted Subsidiaries if the book value of such assets, when added to
the book value of all other assets sold, leased or otherwise disposed of by the
Company and its Restricted Subsidiaries during the period of 12 consecutive
months ending on the date of such sale, lease or other disposition, exceeds 15%
of the book value of Consolidated Total Assets, determined as of the end of the
fiscal year immediately preceding such sale, lease or other disposition;
provided that there shall be excluded from any determination of a "substantial
part" any (i) sale or disposition of assets in the ordinary course of business
of the Company and its Restricted Subsidiaries, (ii) any transfer of assets from
the Company to any Restricted Subsidiary or from any Restricted Subsidiary to
the Company or another Restricted Subsidiary, and (iii) any Excluded Sale and
Leaseback Transaction.
Section 10.6. Merger, Consolidation and Sale of Stock. (a) The
Company will not, and will not permit any of its Restricted Subsidiaries 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; provided that:
(1) a Restricted Subsidiary of the Company may (x)
consolidate with or merge with, or convey, transfer or lease
substantially all of its assets in a single transaction or series of
transactions to, the Company or another Restricted Subsidiary so long
as in any merger or consolidation involving the Company, the Company
shall be the surviving or continuing corporation, or (y) convey,
transfer or lease all of its assets in compliance with the provisions
of Section 10.5; provided that immediately before, and immediately
after giving effect to, each such transaction, no Default or Event of
Default would exist; and
(2) 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
-26-
the Company in a single transaction or series of transactions to, any
Person so long as the Company is the surviving corporation, or:
(a) 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;
(b) if the Company is not the Successor
Corporation, such corporation shall have executed and
delivered to each holder of Notes its assumption of the due
and punctual performance and observance of each covenant and
condition of this Agreement and the Notes (pursuant to such
agreements and instruments as shall be reasonably satisfactory
to the Required Holders), and the Company shall have caused to
be delivered to each holder of Notes an opinion of nationally
recognized independent counsel, to the effect that all
agreements or instruments effecting such assumption are
enforceable in accordance with their terms and comply with the
terms hereof; and
(c) immediately after giving effect to such
transaction no Default or Event of Default would exist.
(b) The Company will not permit any Restricted Subsidiary to issue
or sell any shares of stock or other equity interests of any class (including as
"stock" for the purposes of this Section 10.6(b), any warrants, rights or
options to purchase or otherwise acquire stock or other equity interests or
other securities exchangeable for or convertible into stock or other equity
interests) of such Restricted Subsidiary to any Person other than the Company or
another Restricted Subsidiary, except for the purpose of qualifying directors,
or except in satisfaction of the validly pre-existing preemptive or contractual
rights of minority shareholders in connection with the simultaneous issuance of
stock or other equity interests to the Company and/or a Restricted Subsidiary
whereby the Company and/or such Restricted Subsidiary maintain their same
proportionate interest in such Restricted Subsidiary or to the extent required
by local law.
(c) The Company will not sell, transfer or otherwise dispose of
any shares of stock or other equity interests of any Restricted Subsidiary
(except to qualify directors), and will not permit any Restricted Subsidiary to
sell, transfer or otherwise dispose of (except to the Company or another
Restricted Subsidiary) any shares of stock or other equity interests of any
other Restricted Subsidiary, unless such sale or other disposition can be made
within the limitations of Section 10.5 or this Section 10.6.
Section 10.7. Nature of Business. The Company will not engage in
any business, if, as a result, when taken as a whole, the general nature of the
business of the Company would be substantially changed from the general nature
of the business of the Company on the date of this Agreement.
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Section 10.8. Transactions with Affiliates. The Company will not,
and will not permit any Restricted Subsidiary to, enter into, directly or
indirectly, any Material transaction or Material group of related transactions
(including, without limitation, the purchase, lease, sale or exchange of
properties of any kind or the rendering of any service) with any Affiliate
(other than the Company or another Restricted Subsidiary), except upon fair and
reasonable terms no less favorable to the Company or such Restricted Subsidiary
than would be obtainable in a comparable arm's-length transaction with a Person
not an Affiliate.
SECTION 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, or other premium, 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 the terms of Section 7.1(d) or any term contained in
Section 10 or any covenant in a Supplement which specifically provides
that it shall have the benefit of this paragraph (c); or
(d) the Company defaults in the performance of or
compliance with any term contained herein or in any Supplement (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) for any reason any provision of the Subsidiary
Guaranty ceases to be in full force and effect, including, without
limitation, a determination by any Governmental Authority that the
Subsidiary Guaranty is invalid, void or unenforceable and which, in
each case, could reasonably be expected to have a Material Adverse
Effect, or any Subsidiary Guaranty shall contest or deny in writing the
enforceability of any its obligations under any Subsidiary Guaranty; or
(f) any representation or warranty made in writing by or
on behalf of the Company or by any officer of the Company in this
Agreement or any Supplement or by any Subsidiary Guarantor in any other
Note Document or by any of their respective officers in any writing
furnished in connection with the transactions contemplated hereby or
thereby proves to have been false or incorrect in any material respect
on the date as of which made; or
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(g) (i) the Company, any Restricted Subsidiary or any
Subsidiary Guarantor is in default (as principal or as guarantor or
other surety) in the payment of any principal of or premium or
make-whole amount or interest on any Indebtedness other than the Notes
that is outstanding in an aggregate principal amount in excess of 5% of
Consolidated Net Worth beyond any period of grace provided with respect
thereto, or (ii) the Company, any Restricted Subsidiary or any
Subsidiary Guarantor is in default in the performance of or compliance
with any term of any instrument, mortgage, indenture or other agreement
relating to any Indebtedness other than the Notes in an aggregate
principal amount in excess of 5% of Consolidated Net Worth or any other
condition exists, and as a consequence of such default or condition
such Indebtedness has become, or has been declared (or one or more
Persons are entitled to declare such Indebtedness to be), due and
payable before its stated maturity or before its regularly scheduled
dates of payment, or (iii) as a consequence of the occurrence or
continuation of any event or condition (other than the passage of time
or the right of the holder of Indebtedness to convert such Indebtedness
into equity interests or the exercise by the Company or any Restricted
Subsidiary of a contractual right to prepay such Indebtedness), the
Company, any Restricted Subsidiary or any Subsidiary Guarantor has
become obligated to purchase or repay Indebtedness other than the Notes
before its regular maturity or before its regularly scheduled dates of
payment in an aggregate outstanding principal amount in excess of 5% of
Consolidated Net Worth; or
(h) the Company, any Significant Subsidiary or any
Subsidiary Guarantor (i) is generally not paying, or admits in writing
its inability to pay, its debts as they become due, (ii) files, or
consents by answer or otherwise to the filing against it of, a petition
for relief or reorganization or arrangement or any other petition in
bankruptcy, for liquidation or to take advantage of any bankruptcy,
insolvency, reorganization, moratorium or other similar law of any
jurisdiction, (iii) makes an assignment for the benefit of its
creditors, (iv) consents to the appointment of a custodian, receiver,
trustee or other officer with similar powers with respect to it or with
respect to any substantial part of its property, (v) is adjudicated as
insolvent or to be liquidated, or (vi) takes corporate action for the
purpose of any of the foregoing; or
(i) a court or governmental authority of competent
jurisdiction enters an order appointing, without consent by the
Company, any of its Significant Subsidiaries or any Subsidiary
Guarantor, a custodian, receiver, trustee or other officer with similar
powers with respect to it or with respect to any substantial part of
its property, or constituting an order for relief or approving a
petition for relief or reorganization or any other petition in
bankruptcy or for liquidation or to take advantage of any bankruptcy or
insolvency law of any jurisdiction, or ordering the dissolution,
winding-up or liquidation of the Company, any of its Significant
Subsidiaries or any Subsidiary Guarantor, or any such petition shall be
filed against the Company, any of its Significant Subsidiaries or any
Subsidiary Guarantor and such petition shall not be dismissed within 60
days; or
(j) a final judgment or judgments at any one time
outstanding for the payment of money aggregating in excess of 5% of
Consolidated Net Worth are rendered against one or more of the Company,
its Significant Subsidiaries or any Subsidiary Guarantor and
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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
(k) if (i) any Plan shall fail to satisfy the minimum
funding standards of ERISA or the Code for any plan year or part
thereof or a waiver of such standards or extension of any amortization
period is sought or granted under Section 412 of the Code, (ii) a
notice of intent to terminate any Plan shall have been or is reasonably
expected to be filed with the PBGC or the PBGC shall have instituted
proceedings under Section 4042 of ERISA to terminate or appoint a
trustee to administer any Plan or the PBGC shall have notified the
Company or any ERISA Affiliate that a Plan may become a subject of any
such proceedings, (iii) the aggregate "amount of unfunded benefit
liabilities" (within the meaning of Section 4001(a)(18) of ERISA) under
all Plans, determined in accordance with Title IV of ERISA, shall
exceed 5% of Consolidated Net Worth, (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 could 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.
SECTION 12. REMEDIES ON DEFAULT, ETC.
Section 12.1. Acceleration. (a) If an Event of Default with respect
to the Company described in paragraph (h) or (i) of Section 11 (other than an
Event of Default described in clause (i) of paragraph (h) or described in clause
(vi) of paragraph (h) by virtue of the fact that such clause encompasses clause
(i) of paragraph (h)) has occurred, all the Notes of every series then
outstanding shall automatically become immediately due and payable.
(b) If any other Event of Default has occurred and is continuing,
any holder or holders of more than 50% in aggregate principal amount of the
Notes of any Series at the time outstanding may at any time at its or their
option, by notice or notices to the Company, declare all the Notes of such
Series then outstanding to be immediately due and payable.
(c) If any Event of Default described in paragraph (a) or (b) of
Section 11 has occurred and is continuing with respect to any Series of Notes,
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 of such Series held by such holder or holders to
be immediately due and payable.
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Upon any Note's becoming due and payable under this Section 12.1,
whether automatically or by declaration, such Note will forthwith mature and the
entire unpaid principal amount of such Note, plus (i) all accrued and unpaid
interest thereon and (ii) the Make-Whole Amount (or other applicable premium)
determined in respect of such principal amount (to the full extent permitted by
applicable law), shall all be immediately due and payable, in each and every
case without presentment, demand, protest or further notice, all of which are
hereby waived. The Company acknowledges, and the parties hereto agree, that each
holder of a Note has the right to maintain its investment in the Notes free from
repayment or other premium by the Company (except as herein specifically
provided for) and that the provision for payment of a Make-Whole Amount or other
premium 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.
Section 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.
Section 12.3. Rescission. At any time after any Notes of any Series
have been declared due and payable pursuant to clause (b) or (c) of Section
12.1, the holders of more than 50% in aggregate 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 of the affected Series, all principal of and Make-Whole
Amount, if any, on any Notes of the affected Series that are due and payable and
are unpaid other than by reason of such declaration, and all interest on such
overdue principal and Make-Whole Amount, if any, and (to the extent permitted by
applicable law) any overdue interest in respect of the Notes of the affected
Series, 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 any Notes. No rescission and annulment under this Section
12.3 will extend to or affect any subsequent Event of Default or Default or
impair any right consequent thereon.
Section 12.4. No Waivers or Election of Remedies, Expenses, Etc. No
course of dealing and no delay on the part of any holder of any Note in
exercising any right, power or remedy shall operate as a waiver thereof or
otherwise prejudice such holder's rights, powers or remedies. No right, power or
remedy conferred by this Agreement or by any Note upon any holder thereof shall
be exclusive of any other right, power or remedy referred to herein or therein
or now or hereafter available at law, in equity, by statute or otherwise.
Without limiting the obligations of the Company under Section 15, the Company
will pay to the holder of each Note on demand such further amount as shall be
sufficient to cover all costs and expenses of such holder incurred in any
enforcement or collection under this Section 12, including, without limitation,
the reasonable attorneys' fees, expenses and disbursements for the holders as
set forth in Section 15.
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SECTION 13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES.
Section 13.1. Registration of Notes. The Company shall keep at its
principal executive office a register for the registration and registration of
transfers of Notes. The name and address of each holder of one or more Notes,
each transfer thereof and the name and address of each transferee of one or more
Notes shall be registered in such register. Prior to due presentment for
registration of transfer, the Person in whose name any Note shall be registered
shall be deemed and treated as the owner and holder thereof for all purposes
hereof, and the Company shall not be affected by any notice or knowledge to the
contrary. The Company shall give to any holder of a Note that is an
Institutional Investor promptly upon request therefor, a complete and correct
copy of the names and addresses of all registered holders of Notes.
Section 13.2. Transfer and Exchange of Notes. Upon surrender of any
Note at the principal executive office of the Company for registration of
transfer or exchange (and in the case of a surrender for registration of
transfer, duly endorsed or accompanied by a written instrument of transfer duly
executed by the registered holder of such Note or its 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 not more than 5
Business Days following surrender of such Note, at the Company's expense (except
as provided below), one or more new Notes (as requested by the holder thereof)
of the same Series (and of the same tranche if such Series has separate
tranches) 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 the Note of such Series originally issued hereunder or pursuant to
any Supplement. Each such new Note shall be dated and bear interest from the
date to which interest shall have been paid on the surrendered Note or dated the
date of the surrendered Note if no interest shall have been paid thereon. The
Company may require payment of a sum sufficient to cover any stamp tax or
governmental charge imposed in respect of any such transfer of Notes. Notes
shall not be transferred in denominations of less than $100,000, provided that
if necessary to enable the registration of transfer by a holder of its entire
holding of Notes, one Note may be in a denomination of less than $100,000. Any
transferee, by its acceptance of a Note registered in its name (or the name of
its nominee), shall be deemed to have made the representation set forth in
Section 6.2, provided that such holder may (in reliance upon information
provided by the Company, which shall not be unreasonably withheld) make a
representation to the effect that the purchase by such holder of any Note will
not constitute a non-exempt prohibited transaction under Section 406(a) of
ERISA.
The Notes have not been registered under the Securities Act or under
the securities laws of any state and may not be transferred or resold unless
registered under the Securities Act and all applicable state securities laws or
unless an exemption from the requirement for such registration is available.
Section 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
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(a) in the case of loss, theft or destruction, of
indemnity reasonably satisfactory to it (provided that if the holder of
such Note is, or is a nominee for, an original Purchaser or another
holder of a Note with a minimum net worth of at least $50,000,000, such
Person's own unsecured agreement of indemnity shall be deemed to be
satisfactory), or
(b) in the case of mutilation, upon surrender and
cancellation thereof,
the Company at its own expense shall execute and deliver not more than five
Business Days following satisfaction of such conditions, in lieu thereof, a new
Note of the same Series (and of the same tranche if such Series has separate
tranches), 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.
SECTION 14. PAYMENTS ON NOTES.
Section 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 Chicago, Illinois at the principal office of Bank
of America, N.A. 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.
Section 14.2. Home Office Payment. So long as any Purchaser or such
Purchaser's 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
for such Purchaser on Schedule A hereto or, in the case of any Additional
Purchaser, Schedule A attached to any Supplement pursuant to which such
Additional Purchaser is a party, or by such other method or at such other
address as such Purchaser or Additional Purchaser shall have from time to time
specified to the Company in writing for such purpose, without the presentation
or surrender of such Note or the making of any notation thereon, except that
upon written request of the Company made concurrently with or reasonably
promptly after payment or prepayment in full of any Note, such Purchaser or
Additional Purchaser 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 any Purchaser or Additional Purchaser or such Person's nominee, such
Person will, at its election, either endorse thereon the amount of principal
paid thereon and the last date to which interest has been paid thereon or
surrender such Note to the Company in exchange for a new Note or Notes pursuant
to Section 13.2. The Company will afford the benefits of this Section 14.2 to
any Institutional Investor that is the direct or indirect transferee of any
Note.
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SECTION 15. EXPENSES, ETC.
Section 15.1. Transaction Expenses. Whether or not the transactions
contemplated hereby are consummated, the Company will pay all reasonable costs
and expenses (including reasonable attorneys' fees of one special counsel for
the Purchasers and, if reasonably required, local or other counsel) incurred by
the Purchasers and the holders of Notes in connection with such transactions and
in connection with any amendments, waivers or consents under or in respect of
this Agreement (including any Supplement), the Notes or the Subsidiary Guaranty
(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 (including any Supplement), the Notes or the Subsidiary
Guaranty or in responding to any subpoena or other legal process or informal
investigative demand by any Governmental Authority issued in connection with
this Agreement (including any Supplement), the Notes or the Subsidiary Guaranty,
or by reason of being a holder of any Note, and (b) the reasonable costs and
expenses, including financial advisors' fees, incurred in connection with the
insolvency or bankruptcy of the Company or any Restricted Subsidiary or in
connection with any work-out or restructuring of the transactions contemplated
hereby and by the Notes, or by the Subsidiary Guaranty. The Company will pay,
and will save each Purchaser and each other holder of a Note harmless from, all
claims in respect of any reasonable fees, costs or expenses if any, of brokers
and finders (other than those retained by the Purchasers).
Section 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, any Supplement, the
Notes or the Subsidiary Guaranty, and the termination of this Agreement, any
Supplement or the Subsidiary Guaranty.
SECTION 16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT.
All representations and warranties contained herein or in any
Supplement shall survive the execution and delivery of this Agreement or such
Supplement and the related Notes, the purchase or transfer by any Purchaser or
any Additional Purchaser of any such Note or portion thereof or interest therein
and the payment of any Note may be relied upon by any subsequent holder of any
such Note, regardless of any investigation made at any time by or on behalf of
any Purchaser or any Additional Purchaser or any other holder of any such Note.
All statements contained in any certificate or other instrument delivered by or
on behalf of the Company pursuant to this Agreement, any Supplement or the
Subsidiary Guaranty shall be deemed representations and warranties of the
Company under this Agreement; provided, that the representations and warranties
contained in any Supplement shall only be made for the benefit of the Additional
Purchasers which are party to such Supplement and the holders of the Notes
issued pursuant to such Supplement, including subsequent holders of any Note
issued pursuant to such Supplement, and shall not require the consent of the
holders of existing Notes. Subject to the preceding sentence, this Agreement
(including every Supplement), the Notes and the Subsidiary Guaranty embody the
entire agreement and understanding between the Purchasers and the Additional
Purchasers and the Note Parties and supersede all prior agreements and
understandings relating to the subject matter hereof.
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SECTION 17. AMENDMENT AND WAIVER.
Section 17.1. Requirements. (a) This Agreement (including any
Supplement) 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 (i) no amendment or waiver of any of the provisions of Section 1, 2, 3, 4,
5, 6 or 21 hereof or the corresponding provision of any Supplement, or any
defined term (as it is used in any such Section or such corresponding provision
of any Supplement), will be effective as to any holder of Notes unless consented
to by such holder of Notes in writing, and (ii) no such amendment or waiver may,
without the written consent of all of the holders of Notes at the time
outstanding affected thereby, (A) subject to the provisions of Section 12
relating to acceleration or rescission, change the amount or time of any
prepayment or payment of principal of, or reduce the rate or change the time of
payment or method of computation of interest or of the Make-Whole Amount on, the
Notes, (B) 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 (C)
amend any of Sections 8, 11(a), 11(b), 12, 17 or 20.
(b) Supplements. Notwithstanding anything to the contrary
contained herein, the Company may enter into any Supplement providing for the
issuance of one or more Series of Additional Notes consistent with Sections 2.2
and 4.13 hereof without obtaining the consent of any holder of any other Series
of Notes.
Section 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, any Supplement, the Notes or any other Note Document. The Company will
deliver executed or true and correct copies of each amendment, waiver or consent
effected pursuant to the provisions of this Section 17 to each holder of
outstanding Notes promptly following the date on which it is executed and
delivered by, or receives the consent or approval of, the requisite holders of
Notes.
(b) Payment. The Company will not directly or indirectly pay or
cause to be paid any remuneration, whether by way of supplemental or additional
interest, fee or otherwise, or grant any security, to any holder of Notes of any
Series as consideration for or as an inducement to the entering into by such
holder of Notes of any waiver or amendment of any of the terms and provisions
hereof or any Supplement or any other Note Document unless such remuneration is
concurrently paid, or security is concurrently granted, on the same terms,
ratably to each holder of Notes of the affected Series then outstanding even if
such holder did not consent to such waiver or amendment.
Section 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
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marked to indicate such amendment or waiver. No such amendment or waiver will
extend to or affect any obligation, covenant, agreement, Default or Event of
Default not expressly amended or waived or impair any right consequent thereon.
No course of dealing between the Company and the holder of any Note nor any
delay in exercising any rights hereunder or under any Note shall operate as a
waiver of any rights of any holder of such Note. As used herein, the term "this
Agreement" and references thereto shall mean this Agreement as it may from time
to time be amended or supplemented.
Section 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.
SECTION 18. NOTICES.
All notices and communications provided for hereunder shall be in
writing and sent (a) by telefacsimile if the sender on the same day sends a
confirming copy of such notice by a recognized overnight delivery service
(charges prepaid), or (b) by a recognized overnight delivery service (with
charges prepaid). Any such notice must be sent:
(i) if to a Purchaser or such Purchaser's nominee, to
such Purchaser or such Purchaser's nominee at the address specified for
such communications in Schedule A to this Agreement, or at such other
address as such Purchaser or such Purchaser's nominee shall have
specified to the Company in writing pursuant to this Section 18;
(ii) if to an Additional Purchaser or such Additional
Purchaser's nominee, to such Additional Purchaser or such Additional
Purchaser's nominee at the address specified for such communications in
Schedule A to any Supplement, or at such other address as such
Additional Purchaser or such Additional Purchaser's nominee shall have
specified to the Company in writing,
(iii) 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 pursuant to this Section 18, or
(iv) if to the Company, to the Company at its address set
forth at the beginning hereof to the attention of Chief Financial
Officer, with a copy to the General Counsel, or at such other address
as the Company shall have specified to the holder of each Note in
writing.
Notices under this Section 18 will be deemed given only when actually received.
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SECTION 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 each Purchaser at the Closing (except the
Notes themselves), and (c) financial statements, certificates and other
information previously or hereafter furnished to each Purchaser, may be
reproduced by such Purchaser by any photographic, photostatic, microfilm,
microcard, miniature photographic or other similar process and such Purchaser
may destroy any original document so reproduced. The Company agrees and
stipulates that, to the extent permitted by applicable law, any such
reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding (whether or not the original is in
existence and whether or not such reproduction was made by such Purchaser in the
regular course of business) and any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence. This
Section 19 shall not prohibit the Company or any other holder of Notes from
contesting any such reproduction to the same extent that it could contest the
original, or from introducing evidence to demonstrate the inaccuracy of any such
reproduction.
SECTION 20. CONFIDENTIAL INFORMATION.
For the purposes of this Section 20, "Confidential Information" means
information delivered to any Purchaser by or on behalf of the Company or any
Subsidiary in connection with the transactions contemplated by or otherwise
pursuant to this Agreement that is proprietary in nature and that was clearly
marked or labeled or otherwise adequately identified when received by such
Purchaser as being confidential information of the Company or such Subsidiary,
provided that such term does not include information that (a) was publicly known
or otherwise known to such Purchaser prior to the time of such disclosure, (b)
subsequently becomes publicly known through no act or omission by such Purchaser
or any Person acting on such Purchaser's behalf, (c) otherwise becomes known to
such Purchaser other than through disclosure by the Company or any Subsidiary or
(d) constitutes financial statements delivered to such Purchaser under Section
7.1 that are otherwise publicly available. Each Purchaser will maintain the
confidentiality of such Confidential Information in accordance with procedures
adopted by such Purchaser in good faith to protect confidential information of
third parties delivered to such Purchaser, provided that such Purchaser may
deliver or disclose Confidential Information to (i) such Purchaser's directors,
trustees, officers, employees, agents, attorneys and affiliates (to the extent
such disclosure reasonably relates to the administration of the investment
represented by such Purchaser's Notes), (ii) such Purchaser's financial advisors
and other professional advisors who agree to hold confidential the Confidential
Information substantially in accordance with the terms of this Section 20, (iii)
any other holder of any Note, (iv) any Institutional Investor to which such
Purchaser sells or offers to sell such Note or any part thereof or any
participation therein (if such Person has agreed in writing prior to its receipt
of such Confidential Information to be bound by the provisions of this Section
20), (v) any Person from which such Purchaser offers to purchase any security of
the Company (if such Person has agreed in writing prior to its receipt of such
Confidential Information to be bound by the provisions of this Section 20), (vi)
any federal or state regulatory authority having jurisdiction over such
Purchaser, (vii) the National Association of Insurance Commissioners or any
similar organization, or any nationally recognized rating agency that requires
access to information about such Purchaser's investment
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portfolio, or (viii) any other Person to which such delivery or disclosure may
be necessary or appropriate (w) to effect compliance with any law, rule,
regulation or order applicable to such Purchaser, (x) in response to any
subpoena or other legal process, (y) in connection with any litigation to which
such Purchaser is a party or (z) if an Event of Default has occurred and is
continuing, to the extent such Purchaser may reasonably determine such delivery
and disclosure to be necessary or appropriate in the enforcement or for the
protection of the rights and remedies under such Purchaser's Notes, this
Agreement and any other Note Document. Each holder of a Note, by its acceptance
of a Note, will be deemed to have agreed to be bound by and to be entitled to
the benefits of this Section 20 as though it were a party to this Agreement. On
reasonable request by the Company in connection with the delivery to any holder
of a Note of information required to be delivered to such holder under this
Agreement or requested by such holder (other than a holder that is a party to
this Agreement or its nominee), such holder will enter into an agreement with
the Company embodying the provisions of this Section 20.
SECTION 21. SUBSTITUTION OF PURCHASER.
Each Purchaser shall have the right to substitute any one of such
Purchaser's Affiliates as the purchaser of the Notes that such Purchaser has
agreed to purchase hereunder, by written notice to the Company, which notice
shall be signed by both such Purchaser and such Purchaser's 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 "Purchaser" is used in this Agreement (other than in this
Section 21), such word shall be deemed to refer to such Affiliate in lieu of
such Purchaser. In the event that such Affiliate is so substituted as a
purchaser hereunder and such Affiliate thereafter transfers to such Purchaser
all of the Notes then held by such Affiliate, upon receipt by the Company of
notice of such transfer, wherever the word "Purchaser" 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 such Purchaser, and such Purchaser shall have
all the rights of an original holder of the Notes under this Agreement.
SECTION 22. MISCELLANEOUS.
Section 22.1. Successors and Assigns. All covenants and other
agreements contained in this Agreement (including all covenants and other
agreements contained in any Supplement) by or on behalf of any of the parties
hereto bind and inure to the benefit of their respective successors and assigns
(including, without limitation, any subsequent holder of a Note) whether so
expressed or not.
Section 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.
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Section 22.3. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall (to the full extent permitted by law)
not invalidate or render unenforceable such provision in any other jurisdiction.
Section 22.4. Construction. Each covenant contained herein shall be
construed (absent express provision to the contrary) as being independent of
each other covenant contained herein, so that compliance with any one covenant
shall not (absent such an express contrary provision) be deemed to excuse
compliance with any other covenant. Where any provision herein refers to action
to be taken by any Person, or which such Person is prohibited from taking, such
provision shall be applicable whether such action is taken directly or
indirectly by such Person.
Section 22.5. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original but all of which
together shall constitute one instrument. Each counterpart may consist of a
number of copies hereof, each signed by less than all, but together signed by
all, of the parties hereto.
Section 22.6. Governing Law. This Agreement shall be construed and
enforced in accordance with, and the rights of the parties shall be governed by,
the law of the State of Illinois 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.
Section 22.7. Submission to Jurisdiction. The Company hereby
irrevocably submits and consents to the nonexclusive jurisdiction of the Federal
court located within the Northern District of the State of Illinois (or if such
court lacks jurisdiction, the state courts located therein) and irrevocably
agrees that all actions or proceedings related to this Agreement or the Notes
may be litigated in such courts, and unconditionally waives any objection which
it may have based on improper venue or forum non conveniens to the conduct of
any proceeding in any such court and waives personal service of any and all
process upon it, and consents that all such service of process be made by
delivery to the Company as set forth in Section 18. Nothing contained in this
Section 22.7 shall affect the right of any holder of Notes to serve legal
process in any other manner permitted by law or to bring any action or
proceeding in the courts of any jurisdiction against the Company or to enforce a
judgment obtained in the courts of any other jurisdiction.
* * * * *
-39-
The execution hereof by the Purchasers shall constitute a contract
among the Company and the Purchasers for the uses and purposes hereinabove set
forth. This Agreement may be executed in any number of counterparts, each
executed counterpart constituting an original but all together only one
agreement.
Very truly yours,
INSITUFORM TECHNOLOGIES, INC.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President, Chief Financial
Officer and Assistant Secretary
-40-
Accepted as of the date first written above.
CONNECTICUT GENERAL LIFE INSURANCE COMPANY
By: CIGNA Investments, Inc. (authorized
agent)
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Managing Director
Insituform Technologies, Inc. Note Purchase Agreement
Accepted as of the date first written above.
THE NORTHWESTERN MUTUAL LIFE
Insurance COMPANY
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its Authorized Representative
Insituform Technologies, Inc. Note Purchase Agreement
Accepted as of the date first written above.
PRINCIPAL LIFE INSURANCE COMPANY, an Iowa
corporation
By: Principal Global Investors, LLC,
a Delaware limited liability company,
its authorized signatory
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Counsel
Title:
MELLON BANK, N-A., solely id its capacity as
Custodian for the Aviva Life-Principal Glob
Priv Structured Settlements ▇▇▇ ▇▇▇ (as
directed by the Principal Global
Investors, LLC), and not in its individual
capacity (MAC & CO) - Nominee Name
/s/ Mac & Co.
By /s/ ▇▇▇▇▇▇ France
Name: ▇▇▇▇▇▇ France
Title: FVP
▇▇▇▇▇▇▇ & CO., as nominee for Comerica Bank
& Trust, National Association, Trustee to
the Trust created by Trust Agreement dated
October 1, 2002
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Analyst
▇▇▇▇▇▇▇ & Co., as nominee for Comerica Bank
& Trust, National Association, Trustee
to the Trust created by Trust Agreement
dated October 1, 2002
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Analyst
▇▇▇▇▇▇▇ & Co., as nominee for Comerica Bank
& Trust, National Association, Trustee
to the Trust created by Trust Agreement
dated October 1, 2002
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Analyst
Insituform Technologies, Inc. Note Purchase Agreement
Accepted as of the date first written above.
THE SECURITY FINANCIAL LIFE
INSURANCE Co.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Chief Investment Officer
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:
"Additional Notes" is defined in Section 2.2.
"Additional Purchasers" means purchasers of Additional Notes.
"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 Person of which the Company and its
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.
"Bank Credit Agreement" shall mean that certain Credit Agreement dated
as of March 30, 2000 by and among the Company, Bank of America, N.A., as
Administrative Agent and lender, and the other financial institutions which are
party thereto, as such agreement may be amended, renewed, replaced, refunded or
refinanced from time to time and any successor bank credit facility which
constitutes the primary bank credit facility of the Company.
"Business Day" means (a) for the purposes of Section 8.6 only, any day
other than a Saturday, a Sunday or a day on which commercial banks in New York
City are required or authorized to be closed, and (b) for the purposes of any
other provision of this Agreement, any day other than a Saturday, a Sunday or a
day on which commercial banks in St. Louis, Missouri or Chicago, Illinois 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 amount 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.
"Closing" is defined in Section 3.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, and the rules and regulations promulgated thereunder from time to time.
"Company" means Insituform Technologies, Inc., a Delaware corporation.
"Confidential Information" is defined in Section 20.
"Consolidated Income Available for Fixed Charges" shall mean, with
respect to any period, the sum of (i) EBITDA for such period and (ii) Rentals
for such period.
"Consolidated Indebtedness" means the total amount of all Indebtedness
of the Company and its Restricted Subsidiaries determined on a consolidated
basis in accordance with GAAP.
"Consolidated Leverage Ratio" shall mean, on any date, the ratio of
Consolidated Indebtedness at such date to EBITDA for the period of the four
consecutive fiscal quarters most recently ended as of such date. For purposes of
calculating EBITDA for any period of four consecutive fiscal quarters, if during
such period the Company or any Restricted Subsidiary shall have acquired any
Person which becomes a Restricted Subsidiary or acquired all or substantially
all of the operating assets of any Person or disposed of any Restricted
Subsidiary or all or substantially all of the operating assets of any Restricted
Subsidiary or disposed of any segment of the business of the Company or a
Restricted Subsidiary, EBITDA for such period shall be calculated after giving
pro forma effect thereto as if such acquisition or disposition occurred on the
first day of such period of four consecutive fiscal quarters.
"Consolidated Net Income" shall mean, for any period, the net income
(or loss), before any extraordinary items, of the Company and its Restricted
Subsidiaries for such period (taken as a cumulative whole), as calculated in
accordance with GAAP.
"Consolidated Net Worth" shall mean, as of any date of determination
thereof, the consolidated stockholder's equity of the Company and its Restricted
Subsidiaries, as determined in accordance with GAAP.
"Consolidated Total Assets" means, as of any date of determination, the
total amount of all assets of the Company and its Restricted Subsidiaries,
determined on a consolidated basis in accordance with GAAP.
"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 with respect to the Notes of any Series that rate
of interest that is the greater of (i) 2% per annum above the rate of interest
stated in clause (a) of the first paragraph of the Notes of such Series or (ii)
2% over the rate of interest publicly announced by Bank of America, N.A. in
Chicago, Illinois as its "base" or "prime" rate.
"EBITDA" shall mean, with respect to any period, the total of the
following calculated without duplication for the Company and its Restricted
Subsidiaries on a consolidated basis for such period: (a) Consolidated Net
Income for such period; plus (b) taxes deducted in determining Consolidated Net
Income for such period; plus (c) Interest Charges deducted in determining
A-2
Consolidated Net Income for such period; plus (d) amortization and depreciation
expense deducted in determining Consolidated Net Income for such period.
"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.
"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.
"Excluded Sale and Leaseback Transaction" shall mean any sale or
transfer of property acquired by the Company or any Restricted Subsidiary after
the date of this Agreement to any Person within 180 days following the
acquisition or construction of such property by the Company or any Restricted
Subsidiary if the Company or a Restricted Subsidiary shall concurrently with
such sale or transfer, lease such property, as lessee.
"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),
as reasonably determined in the good faith opinion of the Company's board of
directors.
"Fixed Charge Coverage Ratio" means, on any date, the ratio of (a)
Consolidated Income Available for Fixed Charges for the period of four
consecutive fiscal quarters ending on, or most recently ended prior to, such
date to (b) Fixed Charges for such period.
"Fixed Charges" means, with respect to any period, the sum of (a)
Interest Expense for such period and (b) Rentals for such period included in the
Company's financial statements in accordance with GAAP.
"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
A-3
(i) the United States of America or any state or
other political subdivision thereof, or
(ii) any jurisdiction in which the Company or any
Restricted Subsidiary conducts all or any part of its
business, or which has jurisdiction over any properties of the
Company or any Restricted Subsidiary, or
(b) any entity exercising executive, legislative,
judicial, regulatory or administrative functions of, or pertaining to,
any such government.
"Guaranty" means, with respect to any Person, any obligation (except
the endorsement in the ordinary course of business of negotiable instruments for
deposit or collection) of such Person guaranteeing or in effect guaranteeing any
Indebtedness, dividend or other obligation of any other Person in any manner,
whether directly or indirectly, including (without limitation) obligations
incurred through an agreement, contingent or otherwise, by such Person:
(a) to purchase such Indebtedness or obligation or any
property constituting security therefor primarily for the purpose of
assuring the owner of such Indebtedness or obligation of the ability of
any other Person to make payment of the Indebtedness or obligation;
(b) to advance or supply funds (i) for the purchase or
payment of such Indebtedness or obligation, or (ii) to maintain any
working capital or other balance sheet condition or any income
statement condition of any other Person or otherwise to advance or make
available funds for the purchase or payment of such Indebtedness or
obligation;
(c) to lease properties or to purchase properties or
services primarily for the purpose of assuring the owner of such
Indebtedness or obligation of the ability of any other Person to make
payment of the Indebtedness or obligation; or
(d) otherwise to assure the owner of such Indebtedness or
obligation against loss in respect thereof.
In any computation of the Indebtedness or other liabilities of the
obligor under any Guaranty, the Indebtedness or other obligations that are the
subject of such Guaranty shall be assumed to be direct obligations of such
obligor, provided that the amount of such Indebtedness outstanding for purposes
of this Agreement shall not be deemed to exceed the maximum amount of
Indebtedness that is the subject of such Guaranty.
"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).
A-4
"holder" means, with respect to any Note, the Person in whose name such
Note is registered in the register maintained by the Company pursuant to Section
13.1.
"Indebtedness" means, with respect to any Person, without duplication,
(a) its liabilities for borrowed money;
(b) its liabilities for the deferred purchase price of
property acquired by such Person (excluding accounts payable and other
accrued liabilities arising in the ordinary course of business) but
including, without limitation, all liabilities created or arising under
any conditional sale or other title retention agreement with respect to
any such property;
(c) its Capital Lease Obligations;
(d) all liabilities for borrowed money secured by any
Lien with respect to any property owned by such Person (whether or not
it has assumed or otherwise become liable for such liabilities); and
(e) Guaranties of such Person with respect to liabilities
of a type described in any of clauses (a) through (d) hereof.
Indebtedness of any Person shall include all obligations of such Person
of the character described in clauses (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.
"Institutional Investor" means (a) any original purchaser of a Note,
(b) any holder of more than $5,000,000 of the aggregate principal amount of the
Notes of the applicable Series then outstanding, and (c) any bank, trust
company, savings and loan association or other financial institution, any
pension plan, any investment company, any insurance company, any broker or
dealer, or any other similar financial institution or entity, regardless of
legal form.
"Intercreditor Agreement" means the Intercreditor Agreement in
substantially the form attached hereto as Exhibit 2.4(b) among the Purchasers,
the banks under the Bank Credit Agreement and the beneficiaries of Guaranties
executed by the Subsidiary Guarantors.
"Interest Expense" means, with respect to any period, the sum (without
duplication) of the following (in each case, after eliminating all offsetting
debits and credits between the Company and its Restricted Subsidiaries and all
other items required to be eliminated in the course of the preparation of the
consolidated financial statements of the Company and its Restricted Subsidiaries
in accordance with GAAP): (a) all interest in respect of Indebtedness of the
Company and its Restricted Subsidiaries (including imputed interest on Capital
Lease Obligations) deducted in determining Consolidated Net Income for such
period, and (b) all debt discount and expense amortized or required to be
amortized in the determination of Consolidated Net Income for such period.
A-5
"Investments" shall mean all investments, in cash or by delivery of
property made, directly or indirectly in any Person, whether by acquisition of
shares of capital stock, Indebtedness or other obligations or securities or by
loan, advance, capital contribution or otherwise.
"Joint Venture" means any Person (other than a Subsidiary) in which the
Company or any Subsidiary holds, directly or indirectly, 15% or more of any
class of equity or voting interests.
"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 (other than an operating
lease) or Capital Lease, upon or with respect to any property or asset of such
Person (including, in the case of stock, shareholder agreements, voting trust
agreements and all similar arrangements).
"Make-Whole Amount" shall have the meaning (i) set forth in Section 8.6
with respect to any Series 2003-A Note and (ii) set forth in the applicable
Supplement with respect to any other Series of Notes.
"Material" means material in relation to the business, operations,
affairs, financial condition, assets or properties of the Company and its
Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect on (a) the
business, operations, affairs, financial condition, assets or properties of the
Company and its Subsidiaries taken as a whole, or (b) the ability of the Company
to perform its obligations under this Agreement (including any Supplement) and
the Notes, or (c) the validity or enforceability of this Agreement (including
any Supplement) or the Notes.
"Memorandum" is defined in Section 5.3.
"Moody's" shall mean ▇▇▇▇▇ Investors Service, Inc.
"Multiemployer Plan" means any Plan that is a "multiemployer plan" (as
such term is defined in Section 4001(a)(3) of ERISA).
"Net Proceeds" means with respect to any sale of property by any Person
an amount equal to (a) the aggregate amount of the consideration received by
such Person in respect of such sale (valued at the Fair Market Value of such
consideration at the time of such sale), minus (b) the sum of (i) all
out-of-pocket costs and expenses actually incurred by such Person in connection
with such sale, and (ii) all state, federal and foreign taxes incurred, or to be
incurred, by the seller in connection with such sale.
"Notes" is defined in Section 1.
A-6
"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.
"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.
"Priority Debt" means, as of any date of determination thereof, the sum
(without duplication) of (a) Indebtedness of Subsidiaries on such date, other
than (i) Indebtedness owing to the Company or any Wholly-Owned Restricted
Subsidiary and (ii) any Guaranty by any Restricted Subsidiary of unsecured
Indebtedness of the Company or any other Restricted Subsidiary so long as such
Subsidiary provides a Subsidiary Guaranty and complies with the requirements of
Section 9.7 hereof, and (b) Indebtedness of the Company and its Subsidiaries
secured by Liens permitted by Section 10.4(l).
"property" or "properties" means, unless otherwise specifically
limited, real or personal property of any kind, tangible or intangible, ▇▇▇▇▇▇
or inchoate.
"Purchasers" means the purchasers of the Notes named in Schedule A
hereto.
"QPAM Exemption" means Prohibited Transaction Class Exemption 84-14
issued by the United States Department of Labor.
"Receivables" means accounts receivable of the Company or any of its
Restricted Subsidiaries, rights therein, collateral related thereto (including
records, contracts, books, documents and other information related thereto) and
all proceeds thereof.
"Rentals" mean, with respect to any period, the sum of the minimum
amount of rentals and other obligations required to be paid during such period
by the Company or any Restricted Subsidiary as lessee under all leases of real
or personal property having a term in excess of one year (other than Capital
Leases), excluding any amounts required to be paid by the lessee under such
lease (whether or not therein designated as rent or additional rent) (a) which
are on account of maintenance and repairs, insurance, taxes, assessments, water
rates and similar charges and (b) which are based on profits, revenues or sales
realized by the lessee from the leased property or otherwise based on the
performance of the lessee.
A-7
"Required Holders" means, at any time, the holders of more than 50% in
principal amount of the Notes of each Series 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" shall mean each Subsidiary listed as a
Restricted Subsidiary on Schedule 5.4 and any other Subsidiary,
(1) a majority of each class of voting securities of
which is legally and beneficially owned by the Company and its
Wholly-owned Restricted Subsidiaries; and
(2) which has been designated as a Restricted Subsidiary
pursuant to Section 9.6.
"S&P" means Standard & Poor's Ratings Group, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
"Securities Act" means the Securities Act of 1933, as amended from time
to time.
"Securitization Transaction" means the transfer or sale of Receivables
to a SPE.
"Senior Financial Officer" means the chief financial officer, principal
accounting officer, treasurer or comptroller of the Company.
"Senior Indebtedness" means, as of the date of any determination
thereof, all Consolidated Indebtedness, other than Subordinated Indebtedness.
"Series" means any Series of Notes issued pursuant to this Agreement or
any Supplement hereto.
"Series 2003-A Notes" is defined in Section 1 of this Agreement.
"Significant Subsidiary" means, at any time, any Restricted Subsidiary
that would at such time constitute a "significant subsidiary," as defined in
Regulation S-X of the Securities and Exchange Commission.
"SPE" means any special purpose, bankruptcy remote entity (including a
Subsidiary or Affiliate of the Company) that acquires Receivables and whose
obligations are not guaranteed by the Company or another Subsidiary.
"Subordinated Indebtedness" means all unsecured Indebtedness of the
Company which shall contain or have applicable thereto subordination provisions
providing for the subordination thereof to other Indebtedness of the Company
(including, without limitation, the obligations of the Company under this
Agreement and the Notes).
A-8
"Subsidiary" means, as to any Person, any corporation, association or
other business entity in which such Person or one or more of its Subsidiaries or
such Person and one or more of its Subsidiaries owns sufficient equity or voting
interests to enable it or them (as a group) ordinarily, in the absence of
contingencies, to elect a majority of the directors (or Persons performing
similar functions) of such entity, and any partnership or joint venture if more
than a 50% interest in the profits or capital thereof is owned by such Person or
one or more of its Subsidiaries or such Person and one or more of its
Subsidiaries (unless such partnership can and does ordinarily take major
business actions without the prior approval of such Person or one or more of its
Subsidiaries). Unless the context otherwise clearly requires, any reference to a
"Subsidiary" is a reference to a Subsidiary of the Company.
"Subsidiary Guarantor" means each of (a) ▇▇▇▇▇▇▇▇▇, Inc., (b) INA
Acquisition Corporation, (c) Insituform Technologies USA, Inc., (d) ▇▇▇▇▇▇
Industries, Inc. and (e) Tracks of Texas, Inc., each Subsidiary of the Company
that subsequent to the date of Closing becomes a party to the Subsidiary
Guaranty in accordance with Section 9.7 of this Agreement.
"Subsidiary Guaranty" shall mean the Subsidiary Guaranty delivered
pursuant to Section 2.3 and each other Subsidiary Guaranty hereafter executed
and delivered by a Subsidiary of the Company, each to be in substantially the
form of Exhibit 2.3(a) hereto.
"Unrestricted Subsidiary" means any Subsidiary so designated by the
Company.
"Wholly-Owned Restricted Subsidiary" means, at any time, any Restricted
Subsidiary one hundred percent (100%) of all of the equity interests (except
directors' qualifying shares) and voting interests of which are owned by any one
or more of the Company and the Company's other Wholly-Owned Restricted
Subsidiaries at such time.
A-9