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▇▇▇▇-▇▇▇▇▇ COMPANY
THIRD AMENDMENT AGREEMENT
Dated as of January 15, 1997
Re: Note Agreements Dated as of September 29, 1989
and
$15,000,000 original principal amount of 9.0%
Senior Notes Due September 29, 1999
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TABLE OF CONTENTS
(Not a part of the Agreement)
SECTION HEADING PAGE
SECTION 1. AMENDMENTS TO EXISTING NOTE AGREEMENTS 2
Section 1.1. General Reference Amendment 2
Section 1.2. Amendments to Section 1.1 2
Section 1.3. Amendment to Section 2 2
Section 1.4. Amendment to Section 5.1 5
Section 1.5. Amendment to Section 6.7 6
Section 1.6. Amendment to Section 6.8 6
SECTION 2. AMENDMENT OF EXISTING NOTES 7
Section 2.1. Amendment of Existing Notes 7
SECTION 3. EXCHANGE OF NOTES 7
Section 3.1. Issuance of Notes 7
Section 3.2. Form and Registration 8
Section 3.3. Delivery of Notes 8
Section 3.4. Exchange Not Deemed Prepayment 8
SECTION 4. CONDITIONS PRECEDENT AND ADDITIONAL AGREEMENTS 8
Section 4.1. Conditions Precedent 8
SECTION 5. REPRESENTATIONS 9
Section 5.1. Representations of the Company 9
SECTION 6. MISCELLANEOUS 9
Section 6.1. Capitalized Terms 9
Section 6.2. Existing Note Agreements 10
Section 6.3. References 10
Section 6.4. Successors and Assigns 10
Section 6.5. Governing Law 10
Section 6.6. Expenses 10
Section 6.7. Counterparts 11
Signature 11
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▇▇▇▇-▇▇▇▇▇ COMPANY
THIRD AMENDMENT AGREEMENT
Re:
NOTE AGREEMENTS DATED AS OF SEPTEMBER 29, 1989
and
$15,000,000 original principal amount of 9.0%
Senior Notes Due September 29, 1999
Dated as of
January 15, 1997
(the "EFFECTIVE DATE")
To Each of the Holders
of Notes listed in Schedule I
to the Note Agreements described below
Gentlemen:
Reference is made to (i) the separate Note Agreements each dated as of
September 29, 1989 between ▇▇▇▇-▇▇▇▇▇ COMPANY, a Delaware corporation (the
"COMPANY"), and each of you, respectively (the "NOTEHOLDERS"), as amended by
that certain First Amendment dated as of November 15, 1996 and that certain
Second Amendment dated as of November 15, 1996 (as so amended, the "EXISTING
NOTE AGREEMENTS"), and (ii) the $15,000,000 original principal amount of 9.0%
Senior Notes due September 29, 1999 issued pursuant to the Existing Note
Agreements (the "EXISTING NOTES"). The Existing Note Agreements, as amended
hereby, shall be referred to as the "NOTE AGREEMENTS," and the Existing Notes,
as amended hereby, shall be referred to as the "NOTES."
For good and valuable consideration, the Company requests the amendment of
certain provisions of the Existing Note Agreements and the Existing Notes as
hereinafter provided.
Upon your acceptance hereof and the satisfaction of all conditions
precedent hereto, this Third Amendment Agreement shall constitute a contract
between us amending the Existing Note Agreements and the Existing Notes, but
only in the respects hereinafter set forth:
SECTION 1. AMENDMENTS TO EXISTING NOTE AGREEMENTS.
SECTION 1.1. GENERAL REFERENCE AMENDMENT. From and after January 15,
1997, each reference in the Existing Note Agreements and the Existing Notes to
the "$15,000,000 9.0% Senior Notes Due September 29, 1999", is hereby amended to
refer to the "$15,000,000 First Amended and Restated 10.0% Senior Notes Due
September 29, 2001";
SECTION 1.2. AMENDMENTS TO SECTION 1.1. (a) From and after January 15,
1997, Section 1.1 of the Existing Note Agreements is hereby amended to change
the references in such section from "9.0%" and "10.0" to "10.0%" and "11.0%",
respectively and to change the references in such section from "September 29,
1999" to "September 29, 2001" .
(b) Section 1.1 of the Existing Note Agreements is hereby amended by
inserting the following paragraph at the end thereof:
Notwithstanding anything contained herein to the
contrary, in addition to the stated interest rate applicable
to the Notes (including, without limitation, the interest
rate applicable to overdue payments in respect of the
Notes), the Notes shall bear additional interest at the rate
of .50% per annum during any Interest Rate Event Period.
SECTION 1.3. AMENDMENT TO SECTION 2. Section 2 of the Existing Note
Agreements is hereby amended to insert the following new Section 2.6 at the end
thereof:
SECTION 2.6. CHANGE IN CONTROL.
(a) NOTICE OF CHANGE IN CONTROL OR CONTROL EVENT. The Company will,
within 3 days after any Change in Control or Control Event, give written
notice of such Change in Control or Control Event to each holder of Notes
UNLESS notice in respect of such Change in Control (or the Change in
Control contemplated by such Control Event) shall have been given pursuant
to subparagraph (b) of this SECTION 2.6. If a Change in Control has
occurred, such notice shall contain and constitute an offer to prepay Notes
as described in subparagraph (c) of this SECTION 2.6 and shall be
accompanied by the certificate described in subparagraph (g) of this
SECTION 2.6.
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(b) CONDITION TO COMPANY ACTION. The Company will not take any
action that consummates or finalizes a Change in Control unless (i) at
least 45 days prior to such action it shall have given to each holder of
Notes written notice containing and constituting an offer to prepay Notes
as described in subparagraph (c) of this SECTION 2.6, accompanied by the
certificate described in subparagraph (g) of this SECTION 2.6, and
(ii) contemporaneously with such action, it prepays all Notes required to
be prepaid in accordance with this SECTION 2.6.
(c) OFFER TO PREPAY NOTES. The offer to prepay Notes contemplated by
subparagraphs (a) and (b) of this SECTION 2.6 shall be an offer to prepay,
in accordance with and subject to this SECTION 2.6, all, but not less than
all, of the Notes held by each holder (in this case only, "HOLDER" in
respect of any Note registered in the name of a nominee for a disclosed
beneficial owner shall mean such beneficial owner) on a date specified in
such offer (the "PROPOSED PREPAYMENT DATE"). If such Proposed Prepayment
Date is in connection with an offer contemplated by subparagraph (a) of
this SECTION 2.6, such date shall be not less than 30 days and not more
than 45 days after the date of such offer (if the Proposed Prepayment Date
shall not be specified in such offer, the Proposed Prepayment Date shall be
the 45th day after the date of such offer).
(d) ACCEPTANCE. A holder of Notes may accept the offer to prepay
made pursuant to this SECTION 2.6 by causing a notice of such acceptance to
be delivered to the Company at least 5 days prior to the Proposed
Prepayment Date. A failure by a holder of Notes to respond to an offer to
prepay made pursuant to this SECTION 2.6 shall be deemed to constitute an
acceptance of such offer by such holder.
(e) PREPAYMENT. Prepayment of the Notes to be prepaid pursuant to
this SECTION 2.6 shall be at 100% of the principal amount of such Notes,
plus the Make Whole Premium determined for the date of prepayment with
respect to such principal amount, together with interest on such Notes
accrued to the date of prepayment. On the business day preceding the date
of prepayment, the Company shall deliver to each holder of Notes being
prepaid a statement showing the Make Whole Premium due in connection with
such prepayment and setting forth the details of the computation of such
amount. The prepayment shall be made on the Proposed Prepayment Date
except as provided in subparagraph (f) of this SECTION 2.6.
(f) DEFERRAL PENDING CHANGE IN CONTROL. The obligation of the
Company to prepay Notes pursuant to the offers required by subparagraph (b)
and accepted in accordance with subparagraph (d) of this SECTION 2.6 is
subject to the occurrence of the Change in Control in respect of which such
offers and acceptances shall have been made. In the event that such Change
in Control does not occur on the Proposed Prepayment Date in
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respect thereof, the prepayment shall be deferred until and shall be
made on the date on which such Change in Control occurs. The Company
shall keep each holder of Notes reasonably and timely informed of (i)
any such deferral of the date of prepayment, (ii) the date on which such
Change in Control and the prepayment are expected to occur, and (iii)
any determination by the Company that efforts to effect such Change in
Control have ceased or been abandoned (in which case the offers and
acceptances made pursuant to this SECTION 2.6 in respect of such Change
in Control shall be deemed rescinded).
(g) OFFICER'S CERTIFICATE. Each offer to prepay the Notes pursuant
to this SECTION 2.6 shall be accompanied by a certificate, executed by a
senior financial officer of the Company and dated the date of such offer,
specifying: (i) the Proposed Prepayment Date; (ii) that such offer is made
pursuant to this SECTION 2.6; (iii) the principal amount of each Note
offered to be prepaid; (iv) the estimated Make Whole Premium 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; (v) the interest that would be due on each Note offered to be
prepaid, accrued to the Proposed Prepayment Date; (vi) that the conditions
of this SECTION 2.6 have been fulfilled; and (vii) in reasonable detail,
the nature and date or proposed date of the Change in Control.
(h) "CHANGE IN CONTROL" DEFINED. "CHANGE IN CONTROL" means any of
the following events or circumstances:
if any person (as such term is used in section 13(d) and section
14(d)(2) of the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT") or related persons constituting a group (as such
term is used in Rule 13d-5 under the Exchange Act), become the
"beneficial owners" (as such term is used in Rule 13d-3 under the
Exchange Act), directly or indirectly, of more than 35% of the
total voting power of all classes then outstanding of the Company's
voting stock.
(i) "CONTROL EVENT" DEFINED. "CONTROL EVENT" means:
(i) the execution by the Company or any of its Subsidiaries
or Affiliates of any agreement or letter of intent with respect to
any proposed transaction or event or series of transactions or
events which, individually or in the aggregate, may reasonably be
expected to result in a Change in Control,
(ii) the execution of any written agreement which, when fully
performed by the parties thereto, would result in a Change in
Control, or
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(iii) the making of any written offer by any person (as such
term is used in section 13(d) and section 14(d)(2) of the Exchange
Act) or related persons constituting a group (as such term is used
in Rule 13d-5 under the Exchange Act) to the holders of the common
stock of the Company, which offer, if accepted by the requisite
number of holders, would result in a Change in Control.
SECTION 1.4. AMENDMENT TO SECTION 5.1. Section 5.1 of the Existing Note
Agreements is hereby amended as follows: (a) by inserting the following
definitions in alphabetical order:
"DEBT" with respect to any Person shall mean, without duplication, the
sum of:
(a) the obligations of such Person for borrowed money or which have
been incurred in connection with the acquisition of assets;
(b) liabilities secured by any Lien existing on Property owned by
such Person (whether or not such liabilities have been assumed);
(c) Capitalized Rentals under any Capitalized Lease; and
(d) all Guarantees of Debt of others, whether or not reflected in the
balance sheet of such Person.
"INTEREST RATE EVENT PERIOD" shall mean any period
during which the Company fails to have outstanding unsecured
long-term Indebtedness which has a then current rating of
BBB- or higher by Standard & Poor's Corporation.
(b) by amending the definition of "Make Whole Premium" so that the
reference to "the original yield to maturity of the Notes" contained therein
shall read 10.0% as and after the effective date hereof.
Section 1.5. Amendment to Section 6.7. Section 6.7 of the Existing
Note Agreements is hereby amended to read in its entirety as follows:
SECTION 6.7. STOCKHOLDERS' EQUITY. The Company will not, at any
time, permit Stockholders' Equity to be less than the sum of (a)
$170,000,000, plus (b) an aggregate amount equal to 25% of its Consolidated
Net Income (but, in each case, only if a positive number) for each
completed fiscal year beginning with the fiscal year ended January 3, 1998.
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SECTION 1.6. AMENDMENT TO SECTION 6.8. Section 6.8(a) of the Existing
Note Agreements is hereby amended to read in its entirety as follows:
SECTION 6.8. INCURRENCE OF DEBT. (a) Neither the Company nor any
Subsidiary will create, issue, assume, guarantee or otherwise incur or
become liable in respect of any Debt, except:
(i) the Notes;
(ii) Debt of the Company and its Subsidiaries outstanding as
of the date of this Agreement and reflected on the consolidated
balance sheet of the Company and its Subsidiaries as of June 17,
1989;
(iii) additional unsecured Debt of the Company; PROVIDED
that at the time of issuance thereof and after giving effect
thereto and to the application of the proceeds thereof Debt of the
Company and its Subsidiaries determined on a consolidated basis in
accordance with GAAP shall not, during any fiscal year set forth
below, exceed the percent of Total Capitalization set forth
opposite such period:
PERCENTAGE OF DEBT TO
FISCAL YEAR TOTAL CAPITALIZATION
1996 70%
1997 70%
1998 67.5%
1999 65%
2000 and thereafter 60%
(iv) additional Debt of the Company and its Subsidiaries
secured by Liens permitted by and incurred within the limitations
of SECTION 6.9(a)(8) or SECTION 6.9(a)(9); PROVIDED that at the
time of issuance thereof and after giving effect thereto and to the
application of the proceeds thereof Debt of the Company and its
Subsidiaries determined on a consolidated basis in accordance with
GAAP shall not, during any fiscal year set forth below, exceed the
percent of Total Capitalization set forth opposite such period:
PERCENTAGE OF
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DEBT TO TOTAL
FISCAL YEAR CAPITALIZATION
1996 70%
1997 70%
1998 67.5%
1999 65%
2000 and thereafter 60%
(v) Debt of a Subsidiary to the Company or to a Wholly-Owned
Subsidiary.
SECTION 2. AMENDMENT OF EXISTING NOTES.
SECTION 2.1. AMENDMENT OF EXISTING NOTES. The
Existing Notes shall be and are hereby amended to be in the form of Exhibit A
hereto.
SECTION 3. EXCHANGE OF NOTES.
SECTION 3.1. ISSUANCE OF NOTES. The Company agrees to issue and deliver
on the Effective Date of this Third Amendment Agreement the new Notes in the
form of Exhibit A hereto to the Noteholders in exchange for their outstanding
Existing Notes. The Noteholders agree to surrender their Existing Notes to the
Company in exchange for the new Notes, and the Existing Notes shall be canceled
by the Company and shall be void. The Company shall pay any stamp tax or
governmental charge imposed upon such exchange (including, without limitation,
any income or similar tax that is imposed upon the gain, if any, that is
realized by such Noteholder in connection with the exchange). Notwithstanding
anything contained herein to the contrary, the Notes shall bear interest at the
rate of 9.0% per annum for the period from September 30, 1996 to and including
January 14, 1997.
SECTION 3.2. FORM AND REGISTRATION. Each Note shall be in the form of a
single registered Note, shall be registered in the name of the Noteholder
surrendering such Existing Note as reflected on the books and records of the
Company, shall be issued for the same principal amount (after giving effect to
all prepayments of Notes prior to January 15, 1997) as the outstanding principal
amount of the Existing Note surrendered in exchange therefor, and shall be dated
September 30, 1996.
SECTION 3.3. DELIVERY OF NOTES . The Company shall deliver the Notes in
proper form at the offices of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, to be
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held by such firm for delivery against surrender by the Noteholders in
exchange therefor of the Existing Notes.
SECTION 3.4. EXCHANGE NOT DEEMED PREPAYMENT. Each of the Noteholders and
the Company agrees that the amendments affected pursuant to this Third Amendment
Agreement and the exchange of Notes for Existing Notes pursuant to this Third
Amendment Agreement shall not be deemed a prepayment, redemption or repurchase
of the Existing Notes for any purpose, including Section 2 or Section 6.13 of
the Note Agreements.
SECTION 4. CONDITIONS PRECEDENT AND ADDITIONAL AGREEMENTS.
SECTION 4.1. CONDITIONS PRECEDENT. Each Noteholder's agreements set
forth in Section 1 of this Third Amendment Agreement are effective subject to
the satisfaction of the following conditions precedent:
(a) Each Noteholder shall have received this Third Amendment
Agreement, duly executed by the Company.
(b) The holders of 100% of the outstanding principal amount of the
Notes shall have consented to this Third Amendment Agreement as evidenced
by their execution hereof.
(c) The Company shall have provided to the holders of the Notes an
opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., counsel to the Company, substantially in
the form Exhibit B hereto and otherwise in form and substance satisfactory
to the holders of the Notes.
(d) The fees and disbursements of special counsel to the holders of
the Notes incurred through the Closing Date shall have been satisfied by
the Company.
SECTION 5. REPRESENTATIONS.
SECTION 5.1. REPRESENTATIONS OF THE COMPANY. The Company hereby
represents and warrants that as of the date of execution and delivery of this
Third Amendment Agreement and as of the Effective Date:
(a) The Company is a corporation duly organized, validly existing and
in good standing under the laws of its jurisdiction of incorporation.
(b) The Company has the requisite power to own its property and to
carry on its business as now being conducted.
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(c) The Company is duly qualified and in good standing as a foreign
corporation, authorized to do business in each jurisdiction in which the
failure to do so would, individually or in the aggregate, have a material
adverse effect on the business, condition (financial or other), assets,
operations, properties or prospects of the Company.
(d) This Third Amendment Agreement and the Note Agreements and Notes
(as amended hereby) are within the corporate powers of the Company and have
been duly authorized by all necessary corporate action on the part of the
Company and constitute (or, in the case of this Third Amendment Agreement,
when executed and delivered by holders of 100% of the outstanding principal
amount of the Notes will constitute) legal, valid and binding obligations
of the Company enforceable in accordance with their respective terms.
(e) The execution, delivery and performance of this Third Amendment
Agreement by the Company does not and will not result in a violation of or
default under (A) the certificate of incorporation or bylaws of the
Company, (B) any agreement to which the Company is a party or by which it
is bound or to which the Company or any of its properties is subject, (C)
any order, writ, injunction or decree binding on the Company, or (D) any
statute, regulation, rule or other law applicable to the Company.
(f) No material authorization, consent, approval, exemption or action
by or notice to or filing with any court or administrative or governmental
body is required in connection with the execution and delivery of this
Third Amendment Agreement or the consummation of the transactions
contemplated hereby.
SECTION 6. MISCELLANEOUS.
SECTION 6.1. CAPITALIZED TERMS. The capitalized terms used in this Third
Amendment Agreement shall have the respective meanings specified in the Existing
Note Agreements unless otherwise herein defined or the context hereof shall
otherwise require.
SECTION 6.2. EXISTING NOTE AGREEMENTS. Except as amended herein, all
terms and provisions of the Existing Note Agreements are hereby ratified,
confirmed and approved in all respects.
SECTION 6.3. REFERENCES. Any and all notices, requests, certificates and
other instruments, including the Notes, may refer to the "Note Agreements," or
the "Note Agreements each dated as of September 29, 1989" without making
specific reference to this Third Amendment Agreement, but nevertheless all such
references shall be deemed to include this Third Amendment Agreement unless the
context shall otherwise require.
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SECTION 6.4. SUCCESSORS AND ASSIGNS. This Third Amendment Agreement and
all covenants herein contained shall be binding upon and inure to the benefit of
the respective successors and assigns of the parties hereunder. All covenants
made by the Company and the Noteholders herein shall survive the closing and the
delivery of this Third Amendment Agreement.
SECTION 6.5. GOVERNING LAW. This Third Amendment Agreement shall be
governed by and construed in accordance with Minnesota law.
SECTION 6.6. EXPENSES. The Company will pay and/or reimburse all
reasonable expenses of the Noteholders in connection with the negotiation,
preparation, execution and delivery of this Amendment and the transactions
contemplated hereby, in accordance with SECTION 9.4 of the Note Agreements.
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SECTION 6.7. COUNTERPARTS. This Third Amendment Agreement may be
executed in any number of counterparts, each executed counterpart constituting
an original but all together only one instrument.
▇▇▇▇-▇▇▇▇▇ COMPANY
By:
Its
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This foregoing Third Amendment Agreement is hereby accepted and agreed to
as of the Effective Date and the undersigned hereby confirms that on January 15,
1997 and as of the date of execution and delivery hereof immediately prior to
the exchange of Notes provided for herein it held Notes of the Company as
indicated on Schedule I hereto.
NATIONWIDE LIFE INSURANCE COMPANY
By:
Its
WEST COAST LIFE INSURANCE COMPANY
By:
Its
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▇▇▇▇-▇▇▇▇▇ COMPANY
First Amended and Restated 10.0% Senior Note Due September 29, 2001
PPN: _________________
No. R- September 30, 1996
$
▇▇▇▇-▇▇▇▇▇ COMPANY, a Delaware corporation (the "COMPANY"), for value
received, hereby promises to pay to
or registered assigns the principal amount of
DOLLARS
($ ) on September 29, 2001 together with interest on the principal
amount from time to time remaining unpaid hereon at the rate of 9.0% per
annum from and after the date hereof through and including January 14, 1997
and at the rate of 10.0% per annum from January 15, 1997 until maturity
(computed on the basis of a 360-day year of 12 consecutive 30-day months) in
installments payable on March 31, 1997 and on the last day of each March and
September thereafter to and including the date of maturity hereof. The
Company further promises to pay interest on each overdue installment of
principal, premium, if any, and (to the extent legally enforceable) upon each
overdue installment of interest at the rate of 11.0% per annum in each case
from and after the maturity of each such installment, whether by acceleration
or otherwise, until paid. Subject only to SECTION 2.4 of the Note Agreements
hereinafter referred to, both the principal hereof, premium, if any, and
interest at the rate of 10.0% per annum hereon are payable at the principal
office of the Company in Minneapolis, Minnesota, in coin or currency of the
United States of America which at the time of payment shall be legal tender
for the payment of public and private debts.
This Note is one of the First Amended and Restated 10.0% Senior Notes
due September 29, 2001 of the Company in the aggregate principal amount of
$15,000,000 issued or to be issued under and pursuant to the terms and
provisions of separate and several Note Agreements each dated as of September
29, 1989 (collectively, the "NOTE AGREEMENTS") entered into by the Company
with the institutional investors named in Schedule I thereto as amended by
that certain First Amendment dated as of November 15, 1996, as amended by
that certain Second Amendment dated as of November 15, 1996 and as amended by
that certain Third Amendment Agreement dated as of January 15, 1997. This
Note and the holder hereof are entitled equally
EXHIBIT A
(to Third Amendment Agreement)
and ratably with the holders of all other Notes outstanding under the Note
Agreements to all the benefits provided for thereby or referred to therein,
to which Note Agreements reference is hereby made for the statement thereof.
This Note amends and restates in its entirety that certain 9.0% Senior Note
Number R-___, in the original principal amount of $__________ issued by the
Company on ____ and registered in the name of __________________.
This Note and the other Notes outstanding under the Note Agreements may
be declared due prior to their expressed maturity date and voluntary
prepayments may be made thereon by the Company, all in the events, on the
terms and in the manner and amounts as provided in the Note Agreements.
The Notes are not subject to prepayment or redemption at the option of
the Company prior to their expressed maturity dates except on the terms and
conditions and in the amounts and with the premium, if any, set forth in the
Note Agreements.
Notwithstanding anything contained herein to the contrary, in addition
to the stated interest rate applicable to the Notes (including, without
limitation, the interest rate applicable to overdue payments in respect of
the Notes), the Notes shall bear additional interest at the rate of .50% per
annum during any Interest Rate Event Period (as defined in the Note
Agreements).
This Note is registered on the books of the Company and is transferable
only by surrender thereof at the principal office of the Company duly
endorsed or accompanied by a written statement of transfer duly executed by
the registered holder of this Note or his attorney duly authorized in
writing. Payment of or on account of principal, premium, if any, and interest
on this Note shall be made only to or upon the order in writing of the
registered holder.
▇▇▇▇-▇▇▇▇▇ COMPANY
By
Its
A-17
DESCRIPTION OF CLOSING OPINION
OF COUNSEL TO THE COMPANY
The closing opinion of counsel for the Company called for by SECTION
4.1(c) of the Third Amendment Agreement, shall be dated the Effective Date
and addressed to the Noteholders, shall be satisfactory in scope and form to
the Noteholders and shall be to the effect that:
1. The Company is a corporation that is duly organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation, has the requisite power and the authority to execute and
perform the Note Agreements, as amended, and to issue the Notes, as
amended, and has the full requisite power and the authority to conduct the
activities in which it is now engaged.
2. Each Note Agreement, as amended, has been duly authorized by all
necessary action on the part of the Company, has been duly executed and
delivered by the Company and constitutes the legal, valid and binding
contract of the Company enforceable in accordance with its terms, subject
to bankruptcy, insolvency, fraudulent conveyance or similar laws affecting
creditors' rights generally, and general principles of equity (regardless
of whether the application of such principles is considered in a proceeding
in equity or at law).
3. The Notes, as amended, have been duly authorized by all necessary
action on the part of the Company, have been duly executed and delivered by
the Company and constitute the legal, valid and binding obligations of the
Company enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent conveyance or similar laws affecting creditors'
rights generally, and general principles of equity (regardless of whether
the application of such principles is considered in a proceeding in equity
or at law).
The opinion of __________________ shall cover such other matters relating
to the Third Amendment Agreement as the holders of the Notes may reasonably
request. With respect to matters of fact on which such opinion is based, such
counsel shall be entitled to rely on appropriate certificates of public
officials and officers of the Company.
EXHIBIT B
(to Third Amendment Agreement)
SCHEDULE I
Nationwide Life Insurance Company $14,000,000
9.0% Senior Notes
West Coast Life Insurance Company $1,000,000
9.0% Senior Notes
Schedule I