Modine Manufacturing Company Note Purchase Agreement Dated as of September 29, 2005
$75,000,000
4.91%
Senior Notes due September 29, 2015
______________
_____________
Dated
as
of September 29, 2005
--
Table
of Contents
(Not
a
part of the Agreement)
Section Heading Page
Section 1. Authorization
of Notes
Section 2. Sale
and
Purchase of Notes
Section 2.1. Purchase
and Sale of Notes
Section 2.2. Subsidiary
Guaranties
Section 3. Closing
Section 4. Conditions
to Closing
Section 4.1. Representations
and Warranties
Section 4.2. Performance;
No Default
Section 4.3. Compliance
Certificates
Section 4.4. Opinions
of Counsel
Section 4.5. Purchase
Permitted by Applicable Law, Etc.
Section 4.6. Sale
of
Other Notes
Section 4.7. Payment
of Special Counsel Fees.
Section 4.8. Private
Placement Number
Section 4.9. Changes
in Corporate Structure
Section 4.10. Funding
Instructions
Section 4.11. Proceedings
and Documents
Section 5. Representations
and Warranties of the Company
Section 5.1. Organization;
Power and Authority
Section 5.2. Authorization,
Etc.
Section 5.3. Disclosure
Section 5.4. Organization
and Ownership of Shares of Subsidiaries
Section 5.5. Financial
Statements; Material Liabilities
Section 5.6. Compliance
with Laws, Other Instruments, Etc.
Section 5.7. Governmental
Authorizations, Etc.
Section 5.8. Litigation;
Observance of Statutes and Orders
Section 5.9. Taxes
Section 5.10. Title
to
Property; Leases
Section 5.11. Licenses,
Permits, Etc
Section 5.12. Compliance
with ERISA
Section 5.13.
Private
Offering by the Company
Section 5.14. Use
of
Proceeds; Margin Regulations
Section 5.15. Existing
Debt
Section 5.16. Foreign
Assets Control Regulations, Etc.
Section 5.17. Status
under Certain Statutes
Section 5.18. Notes
Rank Pari Passu
Section 5.19. Environmental
Matters
Section 6. Representations
of the Purchasers
Section 6.1. Purchase
for Investment
Section 6.2. Accredited
Investor
Section 6.3. Source
of
Funds
Section 7. Information
as to the Company
Section 7.1. Financial
and Business Information
Section 7.2. Officer’s
Certificate
Section 7.3. Visitation
Section 8. Prepayment
of the Notes
Section 8.1. Required
Prepayments
Section 8.2. Optional
Prepayments with Make-Whole Amount
Section 8.3. Allocation
of Partial Prepayments
Section 8.4. Maturity;
Surrender, Etc.
Section 8.5. Purchase
of Notes
Section 8.6. Make-Whole
Amount
Section 9. Affirmative
Covenants
Section 9.1. Compliance
with Law
Section 9.2. Insurance
Section 9.3. Maintenance
of Properties
Section 9.4. Payment
of Taxes
Section 9.5. Corporate
Existence, Etc.
Section 9.6. Notes
to
Rank Pari Passu
Section 9.7. Books
and
Records
Section 9.8. Guaranty
by Subsidiaries
Section 9.9. Additional
Covenant
Section 10. Negative
Covenants
Section 10.1. Limitations
on Consolidated Total Debt
Section 10.2. Limitations
on Subsidiary Debt
Section 10.3. Limitation
on Liens
Section
10.4. Sale
of
Assets
Section 10.5. Mergers,
Consolidations and Sales of Assets
Section 10.6. Transactions
with Affiliates
Section 10.7. Line
of
Business
Section 10.8. Terrorism
Sanctions Regulations
Section 11. Events
of
Default
Section 12. Remedies
on Default, Etc.
Section 12.1. Acceleration
Section 12.2. Other
Remedies
Section 12.3. Rescission
Section 12.4. No
Waivers or Election of Remedies, Expenses, Etc.
Section 13. Registration;
Exchange; Substitution of Notes
Section 13.1. Registration
of Notes
Section 13.2. Transfer
and Exchange of Notes
Section 13.3. Replacement
of Notes
Section 14. Payments
on Notes
Section 14.1. Place
of
Payment
Section 14.2. Home
Office Payment
Section 15. Expenses,
Etc.
Section 15.1. Transaction
Expenses
Section 15.2. Survival
Section 16. Survival
of Representations and Warranties; Entire Agreement
Section 17. Amendment
and Waiver
Section 17.1. Requirements
Section 17.2. Solicitation
of Holders of Notes
Section 17.3. Binding
Effect, Etc.
Section 17.4. Notes
held by Company, Etc.
Section 18. Notices
Section 19. Reproduction
of Documents
Section 20. Confidential
Information
Section 21. Substitution
of Purchaser
Section 22. Miscellaneous
Section 22.1. Successors
and Assigns
Section 22.2. Payments
Due on Non-Business Days
Section 22.3. Accounting
Terms
Section 22.4. Severability
Section 22.5. Construction,
Etc.
Section 22.6. Counterparts
Section 22.7. Governing
Law
Section 22.8. Jurisdiction
and Process; Waiver of Jury Trial
Signature
--
Schedule A — Information
Relating to Purchasers
Schedule B — Defined
Terms
Schedule 5.3 — Disclosure
Materials
Schedule 5.4 — Subsidiaries
of the Company and Ownership of Subsidiary Stock
Schedule 5.5 — Financial
Statements
Schedule 5.15 — Existing
Debt
Schedule 10.2 — Investments
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Exhibit 1
|
—
|
Form
of 4.91% Senior Note due September 29,
2015
|
|
Exhibit
2.2(a)
|
—
|
Form
of Subsidiary Guaranty
|
|
Exhibit
2.2(b)
|
—
|
Form
of Intercreditor Agreement
|
|
Exhibit 4.4(a)
|
—
|
Form
of Opinion of Special Counsel for the
Company
|
|
Exhibit 4.4(b)
|
—
|
Form
of Opinion of Special Counsel for the
Purchasers
|
--
▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Racine,
Wisconsin 53403-2552
4.91% Senior
Notes due September 29, 2015
Dated
as
of September 29, 2005
To
Each
of the Purchasers Listed in
Schedule
A Hereto:
Ladies
and Gentlemen:
Modine
Manufacturing Company,
a
Wisconsin corporation (the “Company”),
agrees
with each of the purchasers whose names appear at the end hereof (each, a
“Purchaser”
and,
collectively, the “Purchasers”)
as
follows:
|
Section 1.
|
Authorization
of Notes.
|
The
Company will authorize the issue and sale of $75,000,000 aggregate principal
amount of its 4.91% Senior Notes due September 29, 2015 (the “Notes”,
such
term to include any such notes issued in substitution therefor pursuant to
Section 13).
The
Notes shall be substantially in the form set out in Exhibit 1.
Certain
capitalized and other terms used in this Agreement are defined in Schedule B;
and
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.Purchase
and Sale of 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,
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 Purchasers’
obligations hereunder are several and not joint obligations and no Purchaser
shall have any liability to any Person for the performance or non-performance
of
any obligation by any other Purchaser hereunder.
Section
2.2.Subsidiary
Guaranties.
(a) 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 Modine Delaware LLC, a Delaware
limited liability company, Modine Climate Systems Inc., a Kentucky corporation,
Thermacore International, Inc., a Pennsylvania corporation, Thermacore, Inc.,
a
Pennsylvania corporation, Thermal Corp., a Delaware corporation, Modine,
Inc.,
(formerly Modine Acquisition Corporation), a Delaware corporation, ▇▇▇▇▇▇
▇▇▇▇▇▇▇, Inc., a Delaware corporation, Airedale Inc., a Delaware corporation,
and Airedale North America, Inc., a Pennsylvania corporation (together with
any
additional Subsidiary who delivers a guaranty pursuant to Section 9.8,
the
“Subsidiary
Guarantors”)
pursuant to the guaranty agreement substantially in the form of Exhibit 2.2(a)
attached
hereto and made a part hereof (as the same may be amended, modified, extended
or
renewed, the “Subsidiary
Guaranty”).
(b)The
enforcement of the rights and benefits in respect of the Subsidiary Guaranty
and
the allocation of proceeds thereof shall be subject to an intercreditor
agreement substantially in the form of Exhibit 2.2(b)
attached
hereto and made a part hereof (as the same may be amended, modified, extended
or
renewed, the “Intercreditor
Agreement”).
(c)The
holders of the Notes acknowledge and agree that such holders will discharge
and
release any Subsidiary Guarantor from the Subsidiary Guaranty to which it
is a
party pursuant to the written request of the Company, provided
that
(i) such Subsidiary Guarantor has been released and discharged as
an
obligor and guarantor under and in respect of all Debt of the Company and
the
Company so certifies to the holders of the Notes in a certificate which
accompanies such request for release and discharge, such release is hereby
conditioned upon the Company’s agreement that if, for any reason whatsoever,
such Subsidiary Guarantor thereafter becomes an obligor or guarantor under
and
in respect of any Debt of the Company, then the Company shall contemporaneously
provide written notice thereof to the holders of the Notes accompanied by
an
executed Subsidiary Guaranty of such Subsidiary Guarantor, and (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.
(d)The
Company agrees that it will not, nor will it permit any Subsidiary or Affiliate
to, directly or indirectly, pay or cause to be paid any consideration or
remuneration, whether by way of supplemental or additional interest, fee
or
otherwise, to any creditor of the Company or of any Subsidiary Guarantor
as
consideration for or as an inducement to the entering into by any such creditor
of any release or discharge of any Subsidiary Guarantor with respect to any
liability of such Subsidiary Guarantor as an obligor or guarantor under or
in
respect of Debt of the Company, unless such consideration or remuneration
is
concurrently paid, on the same terms, ratably to the Noteholders of all of
the
Notes then outstanding.
|
Section 3.
|
Closing.
|
The
sale
and purchase of the Notes to be purchased by each Purchaser shall occur at
the
offices of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, at 10:00 a.m.
Chicago
time, at a closing (the “Closing”)
on
September 29, 2005 or on such other Business Day thereafter on or
prior to
September 30, 2005 as may be agreed upon by the Company and the Purchasers.
At the Closing, the Company will deliver to each Purchaser the Notes to be
purchased by such Purchaser in the form of a single Note (or such greater
number
of 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 its 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 ▇▇▇▇▇▇▇▇ at ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Bank, Milwaukee,
Wisconsin, ABA No. ▇▇▇▇▇▇▇▇▇ (Bank Contact: ▇▇▇▇▇ ▇▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇).
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 such Purchaser’s satisfaction, such Purchaser shall,
at its 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.
|
Each
Purchaser’s obligation to purchase and pay for the 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) The representations and warranties of the Company in this Agreement
shall be correct when made and at the time of the Closing.
(b)The
representations and warranties of each Subsidiary Guarantor in the Subsidiary
Guaranty shall be correct when made and at the time of Closing.
Section 4.2.Performance;
No Default.
(a) The Company shall have performed and complied with all agreements
and
conditions contained in this Agreement required to be performed or complied
with
by it prior to or at the Closing, and after giving effect to the issue and
sale
of the Notes (and the application of the proceeds thereof as contemplated
by
Section 5.14),
no
Default or Event of Default shall have occurred and be continuing.
(b)Each
Subsidiary Guarantor shall have performed and complied with all agreements
and
conditions contained in the Subsidiary Guaranty required to be performed
and
complied with by it prior to or at the Closing, and after giving effect to
the
issue and sale of 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.
Section 4.3.Compliance
Certificates.
(a)Company
Officer’s Certificate.
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(a)
and
4.9
have
been fulfilled.
(b)Subsidiary
Guarantor Officer’s Certificate. Each
Subsidiary Guarantor shall have delivered to such Purchaser a certificate
of an
authorized officer, dated the date of the Closing, certifying that the
conditions set forth in Section
4.1(b),
4.2(b)
and
4.9
have
been fulfilled.
(c)Company
Secretary’s Certificate.
The
Company shall have delivered to such Purchaser a certificate of its Secretary
or
Assistant Secretary, dated the date of Closing, certifying as to the resolutions
attached thereto and other corporate proceedings relating to the authorization,
execution and delivery of the Notes and this Agreement.
(d)▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ Secretary’s Certificate.
Each
Subsidiary Guarantor shall have delivered to such Purchaser a certificate
of its
Secretary or Assistant Secretary, dated the date of Closing, 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 ▇▇▇▇▇▇▇ & ▇▇▇▇▇
LLP, counsel for the Company and the Subsidiary Guarantors, 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 its counsel may reasonably request (and the Company hereby
instructs its counsel to deliver such opinion to the Purchasers) and
(b) from ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, the Purchasers’ special counsel in
connection with such transactions, substantially in the form set forth in
Exhibit 4.4(b)
and
covering such other matters incident to such transactions as such Purchaser
may
reasonably request.
Section 4.5.Purchase
Permitted by Applicable Law, Etc.
On the
date of the Closing such Purchaser’s purchase of Notes shall (a) be
permitted by the laws and regulations of each jurisdiction to which such
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 such 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
such 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 ▇.▇.▇▇▇▇
of Other Notes.
Contemporaneously with the Closing, the Company shall sell to each other
Purchaser, and each other Purchaser shall purchase, the Notes to be purchased
by
it at the Closing as specified in Schedule A.
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 fees, charges and
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 Notes.
Section 4.9.Changes
in Corporate Structure.
Neither
the Company nor any Subsidiary Guarantor shall have changed its jurisdiction
of
incorporation or organization, as applicable, or been a party to any merger
or
consolidation or 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.Funding
Instructions.
At least
three Business Days prior to the date of the Closing, each Purchaser shall
have
received written instructions signed by a Responsible Officer on letterhead
of
the Company confirming the information specified in Section 3
including (i) the name and address of the transferee bank, (ii) such
transferee bank’s ABA number and (iii) the account name and number into
which the purchase price for the Notes is to be deposited.
Section 4.11.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 reasonably satisfactory to such Purchaser and its special
counsel, and such Purchaser and its special counsel shall have received all
such
counterpart originals or certified or other copies of such documents as such
Purchaser or such special counsel may reasonably request.
|
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
or equivalent status under the laws of its jurisdiction of incorporation,
and is
duly qualified as a foreign corporation and is in good standing or equivalent
status in each jurisdiction in which such qualification is required by law,
other than those jurisdictions as to which the failure to be so qualified
or in
good standing would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. The Company has the corporate
power
and authority to own or hold under lease the properties it purports to own
or
hold under lease, to transact the business it transacts and proposes to
transact, to execute and deliver this Agreement and the 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
(a) applicable bankruptcy, insolvency, reorganization, moratorium
or other
similar laws affecting the enforcement of creditors’ rights generally and
(b) general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law).
Section 5.3.Disclosure.
The
Company, through its agent, ▇▇▇▇▇▇▇▇ Investments Inc., has delivered to each
Purchaser a copy of a Confidential Information Memorandum, dated August 2005
(the “Memorandum”),
relating to the transactions contemplated hereby. This Agreement, the Memorandum
and the documents, certificates or other writings identified in Schedule 5.3,
and the
financial statements listed in Schedule 5.5
(this
Agreement, the Memorandum and such documents, certificates or other writings
and
such financial statements delivered to each Purchaser prior to August 30,
2005 being referred to, collectively, as the “Disclosure
Documents”),
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 March 31,
2005, there has been no change in the financial condition, operations, business
or properties of the Company or any Subsidiary except changes that individually
or in the aggregate would not reasonably be expected to have a Material Adverse
Effect.
Section 5.4.Organization
and Ownership of Shares of Subsidiaries.
(a) Schedule 5.4
is
(except as noted therein) a complete and correct list of the Company’s
Subsidiaries, showing, as to each Subsidiary, the correct name thereof, the
jurisdiction of its organization, and the percentage of shares of each class
of
its capital stock or similar equity interests outstanding owned by the Company
and each other Subsidiary.
(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 (subject to Section 180.0622(2)(b) of the Wisconsin
Business Corporation Law, as judicially interpreted, to the extent applicable)
and are owned by the Company or another Subsidiary free and clear of any
Lien
(except as otherwise disclosed in Schedule 5.4).
(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 would not, individually or in the aggregate, reasonably be expected
to
have a Material Adverse Effect. Each such Subsidiary has the corporate or
other
power and authority to own or hold under lease the properties it purports
to own
or hold under lease and to transact the business it transacts and proposes
to
transact.
Section ▇.▇.▇▇▇▇▇▇▇▇▇
Statements; Material Liabilities.
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). The Company
and
its Subsidiaries do not have any Material liabilities that are not disclosed
on
such financial statements or otherwise disclosed in the Disclosure
Documents.
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 Material 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 Domestic Subsidiary or, to the knowledge of the Company,
any
Foreign Subsidiary.
Section 5.7.Governmental
Authorizations, Etc.
No
consent, approval or authorization of, or registration, filing or declaration
with, any Governmental Authority is required in connection with the execution,
delivery or performance by the Company of this Agreement or the Notes (other
than a filing of a Form 8-K with the SEC disclosing the Company’s entry
into this Agreement).
Section 5.8.Litigation;
Observance of Statutes and Orders.
(a) There are no actions, suits, investigations or proceedings pending
or,
to the knowledge of the Company, threatened against or affecting the Company
or
any Subsidiary or any property of the Company or any Subsidiary in any court
or
before any arbitrator of any kind or before or by any Governmental Authority
that, individually or in the aggregate, would reasonably be expected to have
a
Material Adverse Effect.
(b)Neither
the Company nor any Subsidiary is in default under 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 or the USA Patriot Act) of any Governmental
Authority, which default or violation, individually or in the aggregate,
would
reasonably be expected to have a Material Adverse Effect.
Section 5.9.Taxes.
The
Company and its Subsidiaries have filed all income 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 payable by
them,
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 Federal income tax liabilities of the Company and its
Subsidiaries have been finally determined (whether by reason of completed
audits
or the statute of limitations having run) for all fiscal years up to and
including the fiscal year ended March 31, 2001.
Section 5.10.Title
to Property; Leases.
The
Company and its Subsidiaries have good and sufficient title to their respective
Material properties, including all such properties reflected in the most
recent
audited balance sheet referred to in Section 5.5
or
purported to have been acquired by the Company or any Subsidiary after said
date
(except as sold or otherwise disposed of in the ordinary course of business),
in
each case free and clear of Liens prohibited by this Agreement, except for
those
defects in title and Liens that, individually or in the aggregate, would
not
have a Material Adverse Effect. All Material leases are valid and subsisting
and
are in full force and effect in all material respects.
Section 5.11.Licenses,
Permits, Etc.
(a) The Company and its Subsidiaries own or possess all licenses,
permits,
franchises, authorizations, patents, copyrights, proprietary software, service
marks, trademarks and trade names, or rights thereto, that are Material,
without
known conflict with the rights of others, except for those conflicts that,
individually or in the aggregate, would not have a Material Adverse
Effect.
(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, proprietary software, service mark, trademark,
trade name or other right owned by any other Person.
(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, proprietary software, service mark, 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 would reasonably be expected to result in the incurrence of
any
such liability by the Company or any ERISA Affiliate, or in the imposition
of
any Lien on any of the rights, properties or assets of the Company or any
ERISA
Affiliate, in either case pursuant to Title I or IV of ERISA or to such penalty
or excise tax provisions or to Section 401(a)(29) or 412 of the Code
or
Section 4068 of ERISA, 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
(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 by more than $571,000 in the case of any single Plan
and by
more than $2,735,000 in the aggregate for all Plans. 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 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.
(e)The
execution and delivery of this Agreement and the issuance and sale of the
Notes
hereunder will not involve any transaction that is subject to the prohibitions
of Section 406 of ERISA or in connection with which a tax could be
imposed
pursuant to Section 4975(c)(1)(A)-(D) of the Code. The representation
by
the Company in the first sentence of this Section 5.12(e)
is made
in reliance upon and subject to the accuracy of such Purchaser’s representation
in Section 6.2
as to
the sources of the funds to be used to pay the purchase price of the Notes
to be
purchased by such Purchaser.
Section 5.13.
Private Offering by the Company.
Neither
the Company nor anyone acting on its behalf has offered the Notes, the
Subsidiary Guaranty 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
50
other “accredited investors” (within the meaning of Rule 501(a) of
Regulation D under the Securities Act) each of which has been offered the
Notes
and the Subsidiary Guaranty at a private sale for investment. Neither the
Company nor anyone acting on its behalf has taken, or will take, any action
that
would subject the issuance or sale of the Notes or the issuance of the
Subsidiary Guaranty to the registration requirements of Section 5
of the
Securities Act or to the registration requirements of any securities or blue
sky
laws of any applicable jurisdiction, to the extent, if any, that such laws
are
applicable.
Section 5.14.Use
of Proceeds; Margin Regulations.
The
Company will apply the proceeds of the sale of the Notes as set forth in
[describe relevant section] of the Memorandum. No part of the proceeds from
the
sale of the Notes hereunder will be used, directly or indirectly, for the
purpose of buying or carrying any margin stock within the meaning of
Regulation U of the Board of Governors of the Federal Reserve System
(12
CFR 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 2% 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 2% 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
Debt.
(a) Schedule 5.15
sets
forth a complete and correct list of all outstanding Debt of the Company
and its
Subsidiaries as of July 26, 2005 (including a description of the obligors
and obligees, principal amount outstanding and collateral therefor, if any,
and
Guaranty thereof, if any), since which date there has been no Material change
in
the amounts, interest rates, sinking funds, installment payments or maturities
of the Debt 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 Debt of the Company or such
Subsidiary and no event or condition exists with respect to any Debt 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 Debt to become
due and payable before its stated maturity or before its regularly scheduled
dates of payment.
(b)Neither
the Company nor any Subsidiary is a party to, or otherwise subject to any
provision contained in, any instrument evidencing Debt of the Company or
such
Subsidiary, any agreement relating thereto or any other agreement (including,
but not limited to, its charter or other organizational document) which limits
the amount of, or otherwise imposes restrictions on the incurring of, Debt
of
the Company or any Subsidiary, except as specifically indicated in Schedule 5.15.
Section 5.16.Foreign
Assets Control Regulations, Etc.
(a) Neither the sale of the Notes by the Company hereunder nor its
use of
the proceeds thereof will violate the Trading with the Enemy Act, as amended,
or
any of the foreign assets control regulations of the United States Treasury
Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling
legislation or executive order relating thereto.
(b)Neither
the Company nor any Subsidiary is a Person described or designated in the
Specially Designated Nationals and Blocked Persons List of the Office of
Foreign
Assets Control or in Section 1 of the Anti-Terrorism Order. The Company
and
its Subsidiaries are in compliance, in all Material respects, with the USA
Patriot Act to the extent applicable.
(c)No
part
of the proceeds from the sale of the Notes hereunder will be used, directly
or
indirectly, for any payments to any governmental official or employee, political
party, official of a political party, candidate for political office, or
anyone
else acting in an official capacity, in order to obtain, retain or direct
business or obtain any improper advantage, in violation of the United States
Foreign Corrupt Practices Act of 1977, as amended, assuming in all cases
that
such Act applies to the Company.
Section 5.17.Status
under Certain Statutes.
Neither
the Company nor any Subsidiary is subject to regulation under the Investment
Company Act of 1940, as amended, the Public Utility Holding Company Act of
1935,
as amended, the ICC Termination Act of 1995, as amended, or the Federal Power
Act, as amended.
Section 5.18.Notes
Rank Pari Passu.
The
obligations of the Company under this Agreement and the Notes rank at least
pari
passu
in right
of payment with all other unsecured Senior Debt (actual or contingent) of
the
Company, including, without limitation, all senior unsecured Debt of the
Company
described in Schedule 5.15
hereto.
Section 5.19.Environmental
Matters.
(a) Neither the Company nor any Subsidiary has knowledge of any claim
or
has received any notice of any claim, and no proceeding has been instituted
raising any claim against the Company or any of its Subsidiaries or any of
their
respective real properties now or formerly owned, leased or operated by any
of
them or other assets, alleging any damage to the environment or violation
of any
Environmental Laws, except, in each case, such as could not reasonably be
expected to result in a Material Adverse Effect.
(b)Neither
the Company nor any Subsidiary has knowledge of any facts which would give
rise
to any claim, public or private, of violation of Environmental Laws or damage
to
the environment emanating from, occurring on or in any way related to real
properties now or formerly owned, leased or operated by any of them or to
other
assets or their use, except, in each case, such as could not reasonably be
expected to result in a Material Adverse Effect.
(c)Neither
the Company nor any Subsidiary 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 a manner contrary to any Environmental
Laws in each case in any manner that could reasonably be expected to result
in a
Material Adverse Effect.
(d)All
buildings on all real properties now owned, leased or operated by the Company
or
any Subsidiary are in compliance with applicable Environmental Laws, except
where failure to comply could not reasonably be expected to result in a Material
Adverse Effect.
|
Section 6.
|
Representations
of the Purchasers.
|
Section 6.1.Purchase
for Investment.
Each
Purchaser severally represents that it is purchasing the Notes for its own
account or for one or more separate accounts maintained by such Purchaser
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 their property shall at all times be within
such Purchaser’s or their control. Each Purchaser understands that the Notes
have not been registered under the Securities Act and may be resold only
if
registered pursuant to the provisions of the Securities Act or if an exemption
from registration is available, except under circumstances where neither
such
registration nor such an exemption is required by law, and that the Company
is
not required to register the Notes.
Section 6.2.Accredited
Investor.
Each
Purchaser represents that it is an “accredited investor” (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) acting
for
its own account (and not for the account of others) or as a fiduciary or
agent
for others (which others are also “accredited investors”).
Section 6.3.Source
of Funds.
Each
Purchaser severally 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 such Purchaser to pay the purchase price of the Notes to be purchased
by
such Purchaser hereunder:
(a)the
Source is an “insurance company general account” (as the term is defined in the
United States Department of Labor’s Prohibited Transaction Exemption
(“PTE”)
95-60)
in respect of which the reserves and liabilities (as defined by the annual
statement for life insurance companies approved by the National Association
of
Insurance Commissioners (the “NAIC
Annual Statement”))
for
the general account contract(s) held by or on behalf of any employee benefit
plan together with the amount of the reserves and liabilities for the general
account contract(s) held by or on behalf of any other employee benefit plans
maintained by the same employer (or affiliate thereof as defined in PTE 95-60)
or by the same employee organization in the general account do not exceed
ten
percent (10%) of the total reserves and liabilities of the general account
(exclusive of separate account liabilities) plus surplus as set forth in
the
NAIC Annual Statement filed with such Purchaser’s state of domicile;
or
(b)the
Source is a separate account that is maintained solely in connection with
such
Purchaser’s fixed contractual obligations under which the amounts payable, or
credited, to any employee benefit plan (or its related trust) that has any
interest in such separate account (or to any participant or beneficiary of
such
plan (including any annuitant)) are not affected in any manner by the investment
performance of the separate account; or
(c)the
Source is either (i) an insurance company pooled separate account,
within
the meaning of PTE 90-1, or (ii) a bank collective investment fund,
within
the meaning of the PTE 91-38 and, except as have been disclosed by such
Purchaser to the Company in writing pursuant to this clause (c), no
employee benefit plan or group of plans maintained by the same employer or
employee organization beneficially owns more than 10% of all assets allocated
to
such pooled separate account or collective investment fund; or
(d)the
Source constitutes assets of an “investment fund” (within the meaning of Part V
of the QPAM Exemption) managed by a “qualified professional asset manager” or
“QPAM” (within the meaning of Part V of the QPAM Exemption), no employee benefit
plan’s assets that are included in such investment fund, when combined with the
assets of all other employee benefit plans established or maintained by the
same
employer or by an affiliate (within the meaning of Section V(c)(1)
of the
QPAM Exemption) of such employer or by the same employee organization and
managed by such QPAM, exceed 20% of the total client assets managed by such
QPAM, the conditions of Part l(c) and (g) of the QPAM Exemption are satisfied,
neither the QPAM nor a Person controlling or controlled by the QPAM (applying
the definition of “control” in Section V(e) of the QPAM Exemption) owns a
5% or more interest in the Company and (i) the identity of such QPAM
and
(ii) the names of all employee benefit plans whose assets are included
in
such investment fund have been disclosed to the Company in writing pursuant
to
this clause (d); or
(e)the
Source constitutes assets of a “plan(s)” (within the meaning of Section IV
of PTE 96-23 (the “INHAM
Exemption”))
managed by an “in-house asset manager” or “INHAM” (within the meaning of
Part IV of the INHAM exemption), the conditions of Part I(a), (g)
and (h)
of the INHAM Exemption are satisfied, neither the INHAM nor a Person controlling
or controlled by the INHAM (applying the definition of “control” in
Section IV(d) of the INHAM Exemption) owns a 5% or more interest in
the
Company and (i) the identity of such INHAM and (ii) the name(s) of the employee
benefit plan(s) whose assets constitute the Source have been disclosed to
the
Company in writing pursuant to this clause (e); or
(f)the
Source is a governmental plan; or
(g)the
Source is one or more employee benefit plans, or a separate account or trust
fund comprised of one or more employee benefit plans, each of which has been
identified to the Company in writing pursuant to this clause (g);
or
(h)the
Source does not include assets of any employee benefit plan, other than a
plan
exempt from the coverage of ERISA.
As
used
in this Section 6.3,
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 the Company.
|
Section ▇.▇.▇▇▇▇▇▇▇▇▇
and Business Information.
The
Company shall deliver to each holder of Notes that is an Institutional
Investor:
(a)Quarterly
Statements—
within
45 days (or such shorter period as is 15 days greater than the period applicable
to the filing of the Company’s Quarterly Report on Form 10-Q (the
“Form 10-Q”)
with
the SEC regardless of whether the Company is subject to the filing requirements
thereof) after the end of each quarterly fiscal period in each fiscal year
of
the Company (other than the last quarterly fiscal period of each such fiscal
year), duplicate copies of:
(i)a
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 year-end
adjustments; provided
that
delivery within the time period specified above of copies of the Company’s Form
10-Q prepared in compliance with the requirements therefor and filed with
the
SEC shall be deemed to satisfy the requirements of this Section 7.1(a);
provided,
further,
that the
Company shall be deemed to have made such delivery of such Form 10-Q
if it
shall have timely made such Form 10-Q available on “▇▇▇▇▇” and on its home
page on the worldwide web (at the date of this Agreement located at:
http//▇▇▇.▇▇▇▇▇▇.▇▇▇) and shall have given each Purchaser prior notice of
such
availability on ▇▇▇▇▇ and on its home page in connection with each delivery
(such availability and notice thereof being referred to as “Electronic
Delivery”);
(b)Annual
Statements—
within
90 days (or such shorter period as is 15 days greater than the period applicable
to the filing of the Company’s Annual Report on Form 10-K (the “Form 10-K”)
with
the SEC regardless of whether the Company is subject to the filing requirements
thereof) 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 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 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 SEC shall be
deemed
to satisfy the requirements of this Section 7.1(b);
provided,
further,
that the
Company shall be deemed to have made such delivery of such Form 10-K
if it
shall have timely made Electronic Delivery thereof;
(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 its principal lending banks as a whole (excluding information
sent
to such banks in the ordinary course of administration of a bank facility,
such
as information relating to pricing and borrowing availability or to its public
securities holders generally) and (ii) each regular or periodic report,
each registration statement that shall have become effective (without exhibits
except as expressly requested by such holder), and each final prospectus
and all
amendments thereto filed by the Company or any Subsidiary with the SEC;
provided,
further,
that the
Company shall be deemed to have made such delivery of such other reports
if it
shall have timely made Electronic Delivery thereof;
(d)Notice
of Default or Event of Default—
promptly, and in any event within five days after a Responsible Officer becoming
aware of the existence of any Default or Event of Default, a written notice
specifying the nature and period of existence thereof and what action the
Company is taking or proposes to take with respect thereto;
(e)ERISA
Matters—
promptly, and in any event within five days after a Responsible Officer becoming
aware of any of the following, a written notice setting forth the nature
thereof
and the action, if any, that the Company or an ERISA Affiliate proposes to
take
with respect thereto:
(i)with
respect to any Plan, any reportable event, as defined in Section 4043(c)
of
ERISA and the regulations thereunder, for which notice thereof has not been
waived pursuant to such regulations as in effect on the date hereof;
or
(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 penalty or excise tax provisions of the Code relating to employee
benefit plans, or in the imposition of any Lien on any of the rights, properties
or assets of the Company or any ERISA Affiliate pursuant to Title I or IV
of
ERISA or such penalty or excise tax provisions, if such liability or Lien,
taken
together with any other such liabilities or Liens then existing, would
reasonably be expected to have a Material Adverse Effect; and
(f)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 (including, but without limitation, actual copies
of the
Company’s Form 10-Q and Form 10-K) 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.
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)
shall be
accompanied by a certificate of a Senior Financial Officer setting forth
(which,
in the case of Electronic Delivery of such financial statements, shall be
by
separate concurrent delivery of such certificate to each holder of
Notes):
(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 10.4,
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 Senior Financial Officer has reviewed the relevant terms
hereof and has made, or caused to be made, under his or her supervision,
a
review of the transactions and conditions of the Company and its Subsidiaries
from the beginning of the quarterly or annual period covered by the statements
then being furnished to the date of the certificate and that such review
shall
not have disclosed the existence during such period of any condition or event
that constitutes a Default or an Event of Default or, if any such condition
or
event existed or exists (including, without limitation, any such event or
condition resulting from the failure of the Company or any Subsidiary to
comply
with any Environmental Law), specifying the nature and period of existence
thereof and what action the Company shall have taken or proposes to take
with
respect thereto.
Section 7.3.Visitation.
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), to visit the other
offices and properties of the Company and each Subsidiary, all at such
reasonable times and as often as may be reasonably requested in writing;
and
(b)Default—
if a
Default or Event of Default then exists, at the expense of the Company, to
visit
and inspect any of the offices or properties of the Company or any Subsidiary,
to examine all their respective books of account, records, reports and other
papers, to make copies and extracts therefrom, and to discuss their respective
affairs, finances and accounts with their respective officers and independent
public accountants (and by this provision the Company authorizes said
accountants to discuss the affairs, finances and accounts of the Company
and its
Subsidiaries), all at such times and as often as may be requested.
|
Section 8.
|
Prepayment
of the Notes.
|
Section 8.1.Required
Prepayments.
No
regularly scheduled prepayment of the principal of the Notes is required
prior
to the final maturity date thereof.
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, in an amount not less than
10%
of the aggregate principal amount of the Notes 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, and the Make-Whole
Amount determined for the prepayment date with respect to such principal
amount.
The Company will give each holder of Notes written notice of each optional
prepayment under this Section 8.2
not less
than 30 days and not more than 60 days prior to the date fixed for such
prepayment. Each such notice shall specify such date (which shall be a Business
Day), the aggregate principal amount of the Notes to be prepaid on such date,
the principal amount of each Note held by such holder to be prepaid (determined
in accordance with Section 8.3),
and
the interest to be paid on the prepayment date with respect to such principal
amount being prepaid, and shall be accompanied by a certificate of a Senior
Financial Officer as to the estimated Make-Whole Amount due in connection
with
such prepayment (calculated as if the date of such notice were the date of
the
prepayment), setting forth the details of such computation. Two Business
Days
prior to such prepayment, the Company shall deliver to each holder of Notes
a
certificate of a Senior Financial Officer specifying the calculation of such
Make-Whole Amount as of the specified prepayment date.
Section 8.3.Allocation
of Partial Prepayments.
In the
case of each partial prepayment of the Notes pursuant to Section 8.2,
the
principal amount of the Notes to be prepaid shall be allocated among all
of the
Notes at the time outstanding in proportion, as nearly as practicable, to
the
respective unpaid principal amounts thereof not theretofore called for
prepayment.
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 (which shall be a Business
Day),
together with interest on such principal amount accrued to such date and
the
applicable Make-Whole Amount, if any. From and after such date, unless the
Company shall fail to pay such principal amount when so due and payable,
together with the interest and Make-Whole Amount, if any, as aforesaid, interest
on such principal amount shall cease to accrue. Any Note paid or prepaid
in full
shall be surrendered to the Company and 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 (a) upon the payment or prepayment of the Notes in accordance
with
the terms of this Agreement and the Notes or (b) pursuant to an offer
to
purchase made by the Company or an Affiliate pro rata to the holders of all
Notes at the time outstanding upon the same terms and conditions. Any such
offer
shall provide each holder with sufficient information to enable it to make
an
informed decision with respect to such offer, and shall remain open for at
least
15 Business Days. If the holders of more than 10% of the principal amount
of the
Notes then outstanding accept such offer, the Company shall promptly notify
the
remaining holders of such fact and the expiration date for the acceptance
by
holders of Notes of such offer shall be extended by the number of days necessary
to give each such remaining holder at least 5 Business Days from its receipt
of
such notice to accept such offer. 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.
The
term “Make-Whole
Amount”
means,
with respect to any Note, an amount equal to the excess, if any, of the
Discounted Value of the Remaining Scheduled Payments with respect to the
Called
Principal of such Note over the amount of such Called Principal; provided
that the
Make-Whole Amount may in no event be less than zero. For the purposes of
determining the Make-Whole Amount, the following terms have the following
meanings:
“Called
Principal”
means,
with respect to any Note, the principal of such Note that is to be prepaid
pursuant to Section 8.2
or has
become or is declared to be immediately due and payable pursuant to Section 12.1,
as the
context requires.
“Discounted
Value”
means,
with respect to the Called Principal of any Note, the amount obtained by
discounting all Remaining Scheduled Payments with respect to such Called
Principal from their respective scheduled due dates to the Settlement Date
with
respect to such Called Principal, in accordance with accepted financial practice
and at a discount factor (applied on the same periodic basis as that on which
interest on the Notes is payable) equal to the Reinvestment Yield with respect
to such Called Principal.
“Reinvestment
Yield”
means,
with respect to the Called Principal of any Note, 0.50% (50 basis points)
over
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 “Page PX1” (or
such other display as may replace Page PX1 on Bloomberg Financial Markets
(“Bloomberg”) or, if Page PX1 (or its successor screen on Bloomberg) is
unavailable, the Telerate Access Service screen which corresponds most closely
to Page PX1 for the most recently issued 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 (including by way of interpolation), 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
bill
quotations to bond-equivalent yields in accordance with accepted financial
practice and (b) interpolating linearly between (1) the actively
traded U.S. Treasury security with the maturity closest to and greater than
such
Remaining Average Life and (2) the actively traded U.S. Treasury security
with the maturity closest to and less than such Remaining Average Life. The
Reinvestment Yield shall be rounded to the number of decimal places as appears
in the interest rate of the applicable Note.
“Remaining
Average Life”
means,
with respect to any Called Principal, the number of years (calculated to
the
nearest one-twelfth year) obtained by dividing (a) such Called Principal
into (b) the sum of the products obtained by multiplying (i) the
principal component of each Remaining Scheduled Payment with respect to such
Called Principal by (ii) the number of years (calculated to the nearest
one-twelfth year) that will elapse between the Settlement Date with respect
to
such Called Principal and the scheduled due date of such Remaining Scheduled
Payment.
“Remaining
Scheduled Payments”
means,
with respect to the Called Principal of any Note, all payments of such Called
Principal and interest thereon that would be due after the Settlement Date
with
respect to such Called Principal if no payment of such Called Principal were
made prior to its scheduled due date; provided
that if
such Settlement Date is not a date on which interest payments are due to
be made
under the terms of the Notes, then the amount of the next succeeding scheduled
interest payment will be reduced by the amount of interest accrued to such
Settlement Date and required to be paid on such Settlement Date pursuant
to
Section 8.2
or
Section 12.1.
“Settlement
Date”
means,
with respect to the Called Principal of any Note, the date on which such
Called
Principal is to be prepaid pursuant to Section 8.2
or has
become or is declared to be immediately due and payable pursuant to Section 12.1,
as the
context requires.
If
the
Required Holders of the Notes agree on a calculation of the Make-Whole Amount
that differs from the calculation furnished by the Company, the calculation
of
the Required Holders shall be conclusively deemed correct absent manifest
error.
|
Section 9.
|
Affirmative
Covenants.
|
The
Company covenants that so long as any of the Notes are outstanding:
Section 9.1.Compliance
with Law.
Without
limiting Section 10.8,
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, ERISA, the USA Patriot Act and
Environmental Laws, and will obtain and maintain in effect all licenses,
certificates, permits, franchises and other governmental authorizations
necessary to the ownership of their respective properties or to the conduct
of
their respective businesses, in each case to the extent necessary to ensure
that
non-compliance with such laws, ordinances or governmental rules or regulations
or failures to obtain or maintain in effect such licenses, certificates,
permits, franchises and other governmental authorizations would not reasonably
be expected, individually or in the aggregate, to have a Material Adverse
Effect.
Section ▇.▇.▇▇▇▇▇▇▇▇▇.
The
Company will, and will cause each of its Subsidiaries to (either in the name
of
the Company or in such Subsidiary’s own name), 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 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 Subsidiary from discontinuing
the operation and the maintenance of any of its properties if such
discontinuance is desirable in the conduct of its business and the Company
has
concluded that such discontinuance would not, individually or in the aggregate,
have a Material Adverse Effect.
Section 9.4.Payment
of Taxes.
The
Company will, and will cause each of its Subsidiaries to, file all income
or
similar 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 payable by any of them,
to
the extent such taxes and assessments have become due and payable and before
they have become delinquent; provided
that
neither the Company nor any Subsidiary need pay any such tax or assessment
if
(a) 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 (b) the nonpayment of all such taxes, assessments and claims in
the
aggregate would not reasonably be expected to have a Material Adverse
Effect.
Section 9.5.Corporate
Existence, Etc.
Subject
to Section 10.5,
the
Company will at all times preserve and keep in full force and effect its
corporate existence. Subject to Sections 10.4
and
10.5,
the
Company will at all times preserve and keep in full force and effect the
corporate existence of each of its Subsidiaries (unless merged into the Company
or a Wholly-owned Subsidiary) and all rights and franchises of the Company
and
its Subsidiaries unless the termination of or failure to preserve and keep
in
full force and effect such corporate existence, right or franchise would
not,
individually or in the aggregate, have a Material Adverse Effect.
Section 9.6.Notes
to Rank Pari Passu. The
Notes
and all other obligations under this Agreement of the Company are and at
all
times shall rank at least pari
passu
in right
of payment with all other present and future unsecured Senior Debt (actual
or
contingent) of the Company which is not expressed to be subordinate or junior
in
rank to any other unsecured Debt of the Company.
Section 9.7.Books
and Records.
The
Company will, and will cause each of its Subsidiaries to, maintain proper
books
of record and account in conformity with GAAP and all applicable requirements
of
any Governmental Authority having legal or regulatory jurisdiction over the
Company, or such Subsidiary, as the case may be.
Section 9.8.Guaranty
by Subsidiaries.
The
Company will cause each Subsidiary which delivers a Guaranty to any Person
in
respect of Debt of the Company outstanding under either the Credit Agreement
or
the Shelf Note Purchase Agreement to concurrently enter into a Subsidiary
Guaranty, and within three Business Days thereafter will deliver to each
of the
holders of the Notes the following items:
(a)an
executed counterpart of such Subsidiary Guaranty or joinder agreement in
respect
of an existing Subsidiary Guaranty, as appropriate; and
(b)such
other documents, opinions and information as the Required Holders reasonably
may
require regarding such Subsidiary and the enforceability of such Subsidiary
Guaranty.
Section 9.9.Additional
Covenant.
If at
any time after the date hereof, the Company or any Subsidiary shall agree
to
include in the Credit Agreement or any other credit facility pursuant to
which
the Company or a Subsidiary issues Debt for borrowed money (including any
document, agreement or instrument entered in connection therewith, through
amendment, modification, supplement, course of dealing, interpretation or
otherwise) a financial covenant, event of default, or other provision that
restricts the ability of the Company or any Subsidiary to sell assets or
properties based on a cumulative measurement period of greater than twelve
months, then this Agreement shall be amended to contain such additional asset
sale covenant, event of default, or other provision, and the Company hereby
agrees to so amend this Agreement and to execute and deliver all such documents
requested by the Required Holders to reflect such amendment. Prior to the
execution and delivery of such documents by the Company, this Agreement shall
be
deemed to contain each such more favorable covenant, event of default, or
other
provision for purposes of determining the rights and obligations
hereunder.
|
Section 10.
|
Negative
Covenants.
|
The
Company covenants that so long as any of the Notes are outstanding:
Section 10.1.Limitations
on Consolidated Total Debt. (a) The
Company will not permit as of the last day of each fiscal quarter the ratio
of
(i) Consolidated Total Debt as of such date to (ii) Consolidated
EBITDA for the four consecutive fiscal quarters then most recently ended,
to
exceed 3.0 to 1.0.
(b)The
Company will not, and will not permit any Subsidiary to, create, incur or
suffer
to exist any Debt during any fiscal quarter if a Responsible Officer reasonably
believes an Event of Default would exist as of the last day of such fiscal
quarter under any of Section 10.1(a),
Section 10.2
and
Section 10.3(j).
Section 10.2.Limitations
on Subsidiary Debt. The
Company will not at any time permit any Subsidiary (including, in the case
of
any Qualified Receivables Transaction, any Person to whom any accounts or
notes
receivable and rights related thereto have been sold, conveyed or transferred)
to, directly or indirectly, create, incur, assume, guarantee, have outstanding,
or otherwise become or remain directly or indirectly liable with respect
to, any
Debt other than:
(a)Debt
of a
Subsidiary owed to the Company or a Wholly-Owned Subsidiary;
(b)Debt
consisting of unsecured Guaranties of Subsidiaries issued in favor of
(i) the lenders pursuant to the terms of the Credit Agreement and
(ii) the holders of the Shelf Notes, provided
that, in
any such case, (x) each such Subsidiary delivers an executed counterpart
of
the Subsidiary Guaranty to the holders of the Notes pursuant to the requirements
of Sections 2.2(a)
and
9.8,
as
applicable, and (y) the lenders which are beneficiaries of such Guaranties
are parties to the Intercreditor Agreement;
(c)Receivables
Transaction Attributable Indebtedness; and
(d)Debt
of a
Subsidiary in addition to that otherwise permitted by the foregoing provisions
of this Section 10.2,
provided
that the
sum (without duplication) of (i) the total amount of all Debt incurred
pursuant to this clause (d), plus
(ii) Consolidated Total Debt of the Company secured by Liens permitted
by
Section 10.3(j),
would
not in the aggregate at any time exceed the greater of (1) $100,000,000
or
(2) 20% of Consolidated Adjusted Net Worth.
Section 10.3.Limitation
on Liens.
The
Company will not, and will not permit any of its 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 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, such
security to be pursuant to documentation 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
property taxes and assessments or governmental charges or levies and ▇▇▇▇▇
securing claims or demands of mechanics and materialmen; provided
that
payment thereof is not at the time required by Section
9.4;
(b)Liens
incidental to the conduct of business or the ownership of properties and
assets
(including Liens in connection with worker’s compensation, unemployment
insurance and other like laws, warehousemen’s and attorneys’ liens and statutory
landlords’ liens) and Liens to secure the performance of bids, tenders or trade
contracts, or to secure statutory obligations, surety or appeal bonds or
other
Lien of like general nature, in any such case incurred in the ordinary course
of
business and not in connection with the borrowing of money; provided
that
(i) any such Lien secures only amounts not due and payable or the
payment
of which is being contested in good faith by appropriate actions or proceedings
and (ii) any such Lien does not materially impair the business of
the
Company and its Subsidiaries taken as a whole or the value of the related
property for the purposes of such business;
(c)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;
(d)Liens
existing as of the date of Closing and described on Schedule 5.15
hereto;
(e)survey
exceptions or minor encumbrances, leases or subleases granted to others,
easements or reservations, or rights of others for rights-of-way, utilities
and
other similar purposes, or zoning or other restrictions as to the use of
real
properties, (i) which are necessary for the conduct of the activities
of
the Company and its Subsidiaries or which customarily exist on properties
of
corporations engaged in similar activities and similarly situated and
(ii) which do not in any event materially impair their use in the
operation
of the business of the Company and its Subsidiaries taken as a whole or the
value of such properties;
(f)Liens
created or incurred after the date of the Closing given to secure the payment
of
the purchase price incurred in connection with the acquisition or purchase
or
the cost of construction of property or of assets useful and intended to
be used
in carrying on the business of the Company or a Subsidiary, including Liens
existing on such property or assets at the time of acquisition thereof or
at the
time of completion of construction, as the case may be, whether or not such
existing Liens were given to secure the payment of the acquisition or purchase
price or cost of construction, as the case may be, of the property or assets
to
which they attach; provided
that
(i) the Lien shall attach solely to the property or assets acquired,
purchased or constructed, (ii) such Lien shall have been created or
incurred within 180 days of the date of acquisition or purchase or
completion of construction, as the case may be, (iii) at the time
of
acquisition or purchase or of completion of construction of such property
or
assets, the aggregate amount remaining unpaid on all Debt secured by Liens
on
such property or assets, whether or not assumed by the Company or a Subsidiary,
shall not exceed an amount equal to 100% of the lesser of the total purchase
price or fair market value at the time of acquisition or purchase (as determined
by a Responsible Officer of the Company) or the cost of construction on the
date
of completion thereof, (iv) Debt secured by any such Lien shall have
been
created or incurred within the applicable limitations provided in Sections 10.1
and
10.2,
and (v)
at the time of creation, issuance, assumption, guarantee or incurrence of
the
Debt secured by such Lien and after giving effect thereto and to the application
of the proceeds thereof, no Event of Default would exist;
(g)any
Lien
existing on property or assets of a corporation at the time such corporation
is
consolidated with or merged into the Company or a Subsidiary or becomes a
Subsidiary, or any Lien existing on any property or assets acquired by the
Company or any Subsidiary at the time such property or assets are so acquired
(whether or not the Debt secured thereby shall have been assumed), provided
that (i)
each such Lien shall extend solely to the property or assets so acquired,
(ii)
any Debt secured by any such Lien shall have been created or incurred within
the
applicable limitations provided in Sections 10.1
and
10.2, and
(iii)
at the time of creation, issuance, assumption, guarantee or incurrence of
the
Debt secured by such ▇▇▇▇ and after giving effect thereto and to the application
of the proceeds thereof, no Event of Default would exist;
(h)any
extension, renewal or refunding of any Lien permitted by any of the preceding
clauses (d), (f) or (g) of
this
Section
10.3
in
respect of the same property theretofore subject to such Lien in connection
with
the extension, renewal or refunding of the Debt secured thereby; provided
that (i)
such extension, renewal or refunding of Debt shall be without increase in
the
principal amount remaining unpaid as of the date of such extension, renewal
or
refunding, (ii) such Lien shall attach solely to the same such property,
and
(iii) at the time of such extension, renewal or refunding and after giving
effect thereto, no Event of Default would exist;
(i)Liens
incurred in connection with any transfer of an interest in accounts or notes
receivable or related assets as part of a Qualified Receivables Transaction:
and
(j)Liens
created or incurred after the date of the Closing given to secure Debt of
the
Company in addition to the Liens permitted by the preceding clauses (a) through
(i) hereof; provided
that
(i) the aggregate amount of all Debt secured by such Liens shall not
exceed
the greater of (1) $100,000,000 or (2) 20% of Consolidated Adjusted Net Worth
and, in all events, shall have been incurred within the applicable limitations
provided in Sections 10.1
and
10.2
and
(ii) at the time of creation, issuance, assumption, guarantee or incurrence
of the Debt secured by such Lien and after giving effect thereto and to the
application of the proceeds thereof, no Event of Default would
exist.
Section
▇▇.▇.▇▇▇▇
of Assets.
The
Company will not, and will not permit any Subsidiary to, sell, lease, transfer,
abandon or otherwise dispose of assets including, without limitation, pursuant
to any Sale and Leaseback Transaction (except assets sold in the ordinary
course
of business for fair market value and except as provided in Section 10.5(c));
provided
that the
foregoing restrictions do not apply to:
(a)the
sale,
lease, transfer or other disposition of assets of a Subsidiary to the Company
or
a Wholly-owned Subsidiary; or
(b)the
sale
or transfer of interests in accounts, notes receivable and related assets
as
part of a Qualified Receivables Transaction, provided
that
(i) the sale is for fair value (as determined by a Responsible Officer
of
the Company) and is in the best interests of the Company and (ii) at
the
time of such sale or transfer and after giving effect thereto, no Default
or
Event of Default shall have occurred and be continuing; or
(c)the
sale
of assets for cash or other property to a Person or Persons other than an
Affiliate if all of the following conditions are met:
(i)such
assets (valued at net book value) do not, together with all other assets
of the
Company and its Subsidiaries previously disposed of during the most recently
ended period of twelve consecutive calendar months (excluding, in all events,
the Aftermarket Disposition and dispositions made in the ordinary course
of
business), exceed 15% of Consolidated Total Assets, determined as of the
end of
the immediately preceding fiscal year; and
(ii)in
the
opinion of a Responsible Officer of the Company, the sale is for fair value
and
is in the best interests of the Company; and
(iii)immediately
before and immediately after the consummation of the transaction and after
giving effect thereto, no Event of Default would exist;
provided,
however,
that for
purposes of the foregoing calculation, there shall not be included any assets
the proceeds of which were or are applied within 12 months of the date of
sale
of such assets to either (A) the acquisition of assets useful and
intended
to be used in the operation of the business of the Company and its Subsidiaries
as described in Section 10.7
and
having a fair market value (as determined by a Responsible Officer of the
Company) at least equal to that of the assets so disposed of or (B) the
prepayment at any applicable prepayment premium, on a pro rata
basis,
of Senior Debt of the Company. It is understood and agreed by the Company
that
any such proceeds paid and applied to the prepayment of the Notes as hereinabove
provided shall be prepaid as and to the extent provided in Section 8.2
(it
being understood and agreed that with respect to the Notes, notwithstanding
the
terms and provisions of Section 8.2,
an
offer of prepayment pursuant to this Section 10.4
of
the
Notes shall be at 100% of the principal amount thereof, together with interest
accrued and unpaid thereon to the date of such prepayment, on a pro rata
basis).
Without
limiting the foregoing, the Company agrees that:
(x)the
timing and manner of any offer of prepayment to the holders of the Notes
shall
be in the manner contemplated by Section 8.2;
provided
that any
such prepayment of the Notes pursuant to this Section 10.4
may
be in
an amount less than 10% of the aggregate principal amount of the Notes then
outstanding and shall only be at 100% of the principal amount thereof, together
with interest accrued and unpaid thereon to the date of such prepayment,
and in
no event with a Make-Whole Amount or other premium;
(y)any
holder of the Notes may decline any offer of prepayment pursuant to the
foregoing clause (B); and
(z)if
such
offer is so accepted, the proceeds so offered towards the prepayment of the
Notes and accepted shall be prepaid and applied in the manner provided in
Section 8.2,
excepting only that such prepayment shall be at 100% of the principal amount
thereof, together with interest accrued and unpaid thereon to the date of
such
prepayment, without payment of Make-Whole Amount or other premium.
To
the
extent that any holder of the Notes declines or is deemed to have declined
such
offer of prepayment, the Company may use the remaining amount of such prepayment
so declined for general corporate purposes.
Section 10.5.Mergers,
Consolidations and Sales of Assets. The
Company will not, and will not permit any Subsidiary to, consolidate with
or be
a party to a merger with any other Person, or sell, lease or otherwise dispose
of all or substantially all of its assets; provided
that:
(a)any
Subsidiary may merge or consolidate with or into the Company or any Wholly-owned
Subsidiary so long as in (i) any merger or consolidation involving the Company,
the Company shall be the surviving or continuing corporation and (ii) in
any
merger or consolidation involving a Wholly-owned Subsidiary (and not the
Company), the Wholly-owned Subsidiary shall be the surviving or continuing
corporation or limited liability company;
(b)the
Company may consolidate or merge with or into any other corporation if
(i) the corporation or limited liability company which results from
such
consolidation or merger (the “surviving
corporation”)
is
organized under the laws of any state of the United States or the District
of
Columbia, (ii) the due and punctual payment of the principal of and
premium, if any, and interest on all of the Notes, according to their tenor,
and
the due and punctual performance and observation of all of the covenants
in the
Notes and this Agreement to be performed or observed by the Company are
expressly assumed in writing by the surviving corporation and the surviving
corporation shall furnish to the holders of the Notes an opinion of counsel
satisfactory to the Required Holders to the effect that the instrument of
assumption has been duly authorized, executed and delivered and constitutes
the
legal, valid and binding contract and agreement of the surviving corporation
enforceable in accordance with its terms, except as enforcement of such terms
may be limited by bankruptcy, insolvency, reorganization, moratorium and
similar
laws affecting the enforcement of creditors’ rights generally and by general
equitable principles, (iii) each Subsidiary Guarantor confirms in
writing
its obligations under the Subsidiary Guaranty, and (iv) at the time
of such
consolidation or merger and immediately after giving effect thereto, no Default
or Event of Default would exist;
(c)the
Company may sell or otherwise dispose of all or substantially all of its
assets
in a single transaction or series of transactions to any Person for
consideration which represents the fair market value of such assets (as
determined by a Responsible Officer of the Company) at the time of such sale
or
other disposition if (i) the acquiring Person is a corporation organized
under the laws of any state of the United States or the District of Columbia,
(ii) the due and punctual payment of the principal of and premium,
if any,
and interest on all the Notes, according to their tenor, and the due and
punctual performance and observance of all of the covenants in the Notes
and in
this Agreement to be performed or observed by the Company are expressly assumed
in writing by the acquiring corporation and the acquiring corporation shall
furnish to the holders of the Notes an opinion of counsel satisfactory to
the
Required Holders to the effect that the instrument of assumption has been
duly
authorized, executed and delivered and constitutes the legal, valid and binding
contract and agreement of such acquiring corporation enforceable in accordance
with its terms, except as enforcement of such terms may be limited by
bankruptcy, insolvency, reorganization, moratorium and similar laws affecting
the enforcement of creditors’ rights generally and by general equitable
principles, (iii) each Subsidiary Guarantor confirms in writing its
obligations under the Subsidiary Guaranty, and (iv) at the time of
such
sale or disposition and immediately after giving effect thereto, no Default
or
Event of Default would exist.
Section 10.6.Transactions
with Affiliates.
The
Company will not and will not permit any Subsidiary to enter into directly
or
indirectly any Material transaction or Material group of related transactions
(including without limitation the purchase, lease, sale or exchange of
properties of any kind or the rendering of any service) with any Affiliate
(other than the Company or another Subsidiary), except (a) in the
ordinary
course and pursuant to the reasonable requirements of the Company’s or such
Subsidiary’s business and upon fair and reasonable terms no less favorable to
the Company or such Subsidiary than would be obtainable in a comparable
arm’s-length transaction with a Person not an Affiliate; and
(b) transactions between the Company or any Subsidiary, on the one
hand,
and any Subsidiary or other special purpose entity created to engage solely
in a
Qualified Receivables Transaction.
Section 10.7.Line
of Business.
The
Company will not and will not permit any Subsidiary to engage in any business
if, as a result, the general nature of the business in which the Company
and its
Subsidiaries, taken as a whole, would then be engaged would be substantially
changed from the general nature of the business in which the Company and
its
Subsidiaries, taken as a whole, are engaged on the date of this Agreement
as
described in the Memorandum.
Section 10.8.Terrorism
Sanctions Regulations.
The
Company will not and will not permit any Subsidiary to (a) become
a Person
described or designated in the Specially Designated Nationals and Blocked
Persons List of the Office of Foreign Assets Control or in Section 1
of the
Anti-Terrorism Order or (b) knowingly engage in any dealings or
transactions with any such Person in violation of applicable Laws.
|
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,
on any Note when the same becomes due and payable, whether at maturity or
at a
date fixed for prepayment or by declaration or otherwise; or
(b)the
Company defaults in the payment of any interest on any Note for more than
five
Business Days after the same becomes due and payable; or
(c)the
Company defaults in the performance of or compliance with any term contained
in
Section 7.1(d)
or
Sections 10.1
through
10.4;
or
(d)the
Company defaults in the performance of or compliance with any term contained
herein (other than those referred to in Sections 11(a),
(b) and (c))
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 Section 11(d));
or
(e)any
representation or warranty made in writing by or on behalf of the Company
or any
Subsidiary Guarantor or by any officer of the Company or any Subsidiary
Guarantor in this Agreement, in the Subsidiary Guaranty or in any writing
furnished in connection with the transactions contemplated hereby proves
to have
been false or incorrect in any material respect on the date as of which made;
or
(f)(i) the
Company or any Significant Subsidiary is in default (as principal or as
guarantor or other surety) in the payment of any principal of or premium
or
make-whole amount or interest on any Debt that is outstanding in an aggregate
principal amount of at least $20,000,000 beyond any period of grace provided
with respect thereto, or (ii) the Company or any Significant Subsidiary
is
in default in the performance of or compliance with any term of any evidence
of
any Debt in an aggregate outstanding principal amount of at least $20,000,000
or
of any mortgage, indenture or other agreement relating thereto or any other
condition exists, and as a consequence of such default or condition such
Debt
has become, or has been declared, due and payable before its stated maturity
or
before its regularly scheduled dates of payment; or
(g)the
Company or any Significant Subsidiary (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
(h)a
court
or Governmental Authority of competent jurisdiction enters an order appointing,
without consent by the Company or any of its Significant Subsidiaries, a
custodian, receiver, trustee or other officer with similar powers with respect
to it or with respect to any substantial part of its property, or constituting
an order for relief or approving a petition for relief or reorganization
or any
other petition in bankruptcy or for liquidation or to take advantage of any
bankruptcy or insolvency law of any jurisdiction, or ordering the dissolution,
winding-up or liquidation of the Company or any of its Significant Subsidiaries,
or any such petition shall be filed against the Company or any of its
Significant Subsidiaries and such petition shall not be dismissed within
60
days; or
(i)a
final
judgment or judgments for the payment of money aggregating in excess of
$20,000,000 are rendered against one or more of the Company and its Subsidiaries
and which judgments are not, within 60 days after entry thereof, bonded,
discharged or stayed pending appeal, or are not discharged within 60 days
after
the expiration of such stay; or
(j)if
(i) any Plan shall fail to satisfy the minimum funding standards of
ERISA
or the Code for any plan year or part thereof or a waiver of such standards
or
extension of any amortization period is sought or granted under section 412
of the Code, (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 ERISA Section 4042 to terminate or appoint
a
trustee to administer any Plan or the PBGC shall have notified the Company
or
any ERISA Affiliate that a Plan may become a subject of any such proceedings,
(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 $10,000,000, (iv) the
Company or any ERISA Affiliate shall have incurred or is reasonably expected
to
incur any liability pursuant to Title I or IV of ERISA or the penalty or
excise
tax provisions of the Code relating to employee benefit plans, (v) the
Company or any ERISA Affiliate withdraws from any Multiemployer Plan, or
(vi) the Company or any Subsidiary establishes or amends any employee
welfare benefit plan that provides post-employment welfare benefits in a
manner
that would increase the liability of the Company or any Subsidiary thereunder;
and any such event or events described in clauses (i) through (vi) above,
either
individually or together with any other such event or events, would reasonably
be expected to have a Material Adverse Effect; or
(k)any
Subsidiary Guaranty shall cease to be in full force and effect for any reason
whatsoever, including, without limitation, a determination by any Governmental
Authority that such Subsidiary Guaranty is invalid, void or unenforceable
or any
Subsidiary Guarantor which is a party to such Subsidiary Guaranty shall contest
or deny in writing the validity or enforceability of any of its obligations
under such Subsidiary Guaranty, but excluding any Subsidiary Guaranty which
ceases to be in full force and effect in accordance with and by reason of
the
express provisions of Section 2.2(c).
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
Section 11(g)
or
(h)
(other
than an Event of Default described in clause (i) of Section 11(g)
or
described in clause (vi) of Section 11(g)
by
virtue of the fact that such clause encompasses clause (i) of Section 11(g))
has
occurred, all the Notes 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
not less than 51% in principal amount of the Notes at the time outstanding
may
at any time at its or their option, by notice or notices to the Company,
declare
all the Notes then outstanding to be immediately due and payable.
(c)If
any
Event of Default described in Section 11(a) or (b)
has
occurred and is continuing, any holder or holders of Notes at the time
outstanding affected by such Event of Default may at any time, at its or
their
option, by notice or notices to the Company, declare all the Notes held by
it or
them to be immediately due and payable.
Upon
any
Notes becoming due and payable under this Section 12.1,
whether
automatically or by declaration, such Notes will forthwith mature and the
entire
unpaid principal amount of such Notes, plus (i) all accrued and unpaid
interest thereon (including, but not limited to, interest accrued thereon
at the
Default Rate) and (ii) the Make-Whole Amount determined in respect
of such
principal amount (to the full extent permitted by applicable law), shall
all be
immediately due and payable, in each and every case without presentment,
demand,
protest or further notice, all of which are hereby waived. The Company
acknowledges, and the parties hereto agree, that each holder of a Note has
the
right to maintain its investment in the Notes free from repayment by the
Company
(except as herein specifically provided for), and that the provision for
payment
of a Make-Whole Amount by the Company in the event that the Notes are prepaid
or
are accelerated as a result of an Event of Default, is intended to provide
compensation for the deprivation of such right under such
circumstances.
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 have been declared due and payable pursuant to Section 12.1(b)
or
(c),
the
holders of not less than 51% in principal amount of the Notes then outstanding,
by written notice to the Company, may rescind and annul any such declaration
and
its consequences if (a) the Company has paid all overdue interest
on the
Notes, all principal of and Make-Whole Amount, if any, on any Notes that
are due
and payable and are unpaid other than by reason of such declaration, and
all
interest on such overdue principal and Make-Whole Amount, if any, and (to
the
extent permitted by applicable law) any overdue interest in respect of the
Notes, at the Default Rate, (b) neither the Company nor any other
Person
shall have paid any amounts which have become due solely by reason of such
declaration, (c) 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
(d) no judgment or decree has been entered for the payment of any
monies
due pursuant hereto or to the Notes. No rescission and annulment under this
Section 12.3
will
extend to or affect any subsequent Event of Default or Default or impair
any
right consequent thereon.
Section ▇▇.▇.▇▇
Waivers or Election of Remedies, Expenses, Etc.
No
course of dealing and no delay on the part of any holder of any Note in
exercising any right, power or remedy shall operate as a waiver thereof or
otherwise prejudice such holder’s rights, powers or remedies. No right, power or
remedy conferred by this Agreement or by any Note upon any holder thereof
shall
be exclusive of any other right, power or remedy referred to herein or therein
or now or hereafter available at law, in equity, by statute or otherwise.
Without limiting the obligations of the Company under Section 15,
the
Company will pay to the holder of each Note on demand such further amount
as
shall be sufficient to cover all costs and expenses of such holder incurred
in
any enforcement or collection under this Section 12,
including, without limitation, reasonable attorneys’ fees, expenses and
disbursements.
|
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 to the Company at the address and to the attention
of the
designated officer (all as specified in Section 18(iii))
for
registration of transfer or exchange (and in the case of a surrender for
registration of transfer accompanied by a written instrument of transfer
duly
executed by the registered holder of such Note or such holder’s attorney duly
authorized in writing and accompanied by the relevant name, address and other
information for notices of each transferee of such Note or part thereof),
within
ten Business Days thereafter, the Company shall execute and deliver, at the
Company’s expense (except as provided below), one or more new Notes (as
requested by the holder thereof) in exchange therefor, in an aggregate principal
amount equal to the unpaid principal amount of the surrendered Note. Each
such
new Note shall be payable to such Person as such holder may request and shall
be
substantially in the form of Exhibit
1.
Each
such new Note shall be dated and bear interest from the date to which interest
shall have been paid on the surrendered Note or dated the date of the
surrendered Note if no interest shall have been paid thereon. The Company
may
require payment of a sum sufficient to cover any stamp tax or governmental
charge imposed in respect of any such transfer of Notes. Notes shall not
be
transferred in denominations of less than $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.
Section 13.3.Replacement
of Notes.
Upon
receipt by the Company at the address and to the attention of the designated
officer (all as specified in Section 18(iii))
of
evidence reasonably satisfactory to it of the ownership of and the loss,
theft,
destruction or mutilation of any Note (which evidence shall be, in the case
of
an Institutional Investor, notice from such Institutional Investor of such
ownership and such loss, theft, destruction or mutilation), and
(a)in
the
case of loss, theft or destruction, of indemnity reasonably satisfactory
to 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
or a
Qualified Institutional Buyer, 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,
within
ten Business Days thereafter, the Company at its own expense shall execute
and
deliver, in lieu thereof, a new Note, dated and bearing interest from the
date
to which interest shall have been paid on such lost, stolen, destroyed or
mutilated Note or dated the date of such lost, stolen, destroyed or mutilated
Note if no interest shall have been paid thereon.
|
Section 14.
|
Payments
on Notes.
|
Section ▇▇.▇.▇▇▇▇▇
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 at the principal office of the Company
in
Racine, Wisconsin. 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 its nominee shall be the holder of any Note, and
notwithstanding anything contained in Section 14.1
or in
such Note to the contrary, the Company will pay all sums becoming due on
such
Note for principal, Make-Whole Amount, if any, and interest by the method
and at
the address specified for such purpose below such Purchaser’s name in
Schedule A,
or by
such other method or at such other address as such 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 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.
The
Company will make such payments in immediately available funds, no later
than
11:00 a.m. New York, New York time on the date due. If for any reason
whatsoever the Company does not make any such payment by such 11:00 a.m.
transmittal time, such payment shall be deemed to have been made on the next
following Business Day and such payment shall bear interest at the Default
Rate
set forth in the Note. Prior to any sale or other disposition of any Note
held
by a Purchaser or its nominee, such Purchaser 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
purchased by a Purchaser under this Agreement and that has made the same
agreement relating to such Note as the Purchasers have made in this Section 14.2.
|
Section 15.
|
Expenses,
Etc.
|
Section 15.1.Transaction
Expenses.
Whether
or not the transactions contemplated hereby are consummated, the Company
will
pay all costs and expenses (including reasonable attorneys’ fees of a special
counsel and, if reasonably required by the Required Holders, local or other
counsel) incurred by the Purchasers and each other holder of a Note in
connection with such transactions and in connection with any amendments,
waivers
or consents under or in respect of this Agreement, the Notes, the Subsidiary
Guaranty or the Intercreditor Agreement (whether or not such amendment, waiver
or consent becomes effective), including, without limitation: (a) the
costs
and expenses incurred in enforcing or defending (or determining whether or
how
to enforce or defend) any rights under this Agreement, the Notes, the Subsidiary
Guaranty or the Intercreditor Agreement or in responding to any subpoena
or
other legal process or informal investigative demand issued in connection
with
this Agreement, the Notes, the Subsidiary Guaranty or the Intercreditor
Agreement, or by reason of being a holder of any Note, (b) the costs
and
expenses, including financial advisors’ fees, incurred in connection with the
insolvency or bankruptcy of the Company or any Subsidiary or in connection
with
any work-out or restructuring of the transactions contemplated hereby and
by the
Notes and the Subsidiary Guaranty, and (c) all costs and expenses
of CT
Corporation incurred pursuant to Section 22.8
hereof.
The Company will pay, and will save each Purchaser and each other holder
of a
Note harmless from, all claims in respect of any fees, costs or expenses,
if
any, of brokers and finders (other than those, if any, retained by a Purchaser
or other holder in connection with its purchase of the Notes).
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, the Notes, the Subsidiary Guaranty
or
the Intercreditor Agreement, and the termination of this Agreement.
|
Section 16.
|
Survival
of Representations and Warranties; Entire Agreement .
|
All
representations and warranties contained herein shall survive the execution
and
delivery of this Agreement, the Notes and the Subsidiary Guaranty, the purchase
or transfer by any Purchaser of any Note or portion thereof or interest therein
and the payment of any Note, and may be relied upon by any subsequent holder
of
a Note, regardless of any investigation made at any time by or on behalf
of such
Purchaser or any other holder of a Note. All statements contained in any
certificate or other instrument delivered by or on behalf of the Company
or any
Subsidiary Guarantor pursuant to this Agreement or the Subsidiary Guaranty
shall
be deemed representations and warranties of the Company under this Agreement
or
the Subsidiary Guaranty, as the case may be. Subject to the preceding sentence,
this Agreement, the Notes and the Subsidiary Guaranty embody the entire
agreement and understanding among each Purchaser, the Company and the Subsidiary
Guarantors and supersede all prior agreements and understandings relating
to the
subject matter hereof.
|
Section 17.
|
Amendment
and Waiver.
|
Section 17.1.Requirements.
This
Agreement and the Notes may be amended, and the observance of any term hereof
or
of the Notes may be waived (either retroactively or prospectively), with
(and
only with) the written consent of the Company and the Required Holders, except
that (a) no amendment or waiver of any of the provisions of Section 1,
2, 3, 4, 5, 6
or
21
hereof,
or any defined term (as it is used therein), will be effective as to any
Purchaser unless consented to by such Purchaser in writing, and (b) no
such
amendment or waiver may, without the written consent of the holder of each
Note
at the time outstanding affected thereby, (i) subject to the provisions
of
Section 12
relating
to acceleration or rescission, 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,
(ii) change the percentage of the principal amount of the Notes the
holders
of which are required to consent to any such amendment or waiver, or
(iii) amend any of Section 8,
11(a), 11(b), 12, 17
or
20.
The
Subsidiary Guaranty and the Intercreditor Agreement may be amended, and the
observance of any term thereof may be waived, in accordance with the terms
thereof.
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, of the Notes or of the
Subsidiary Guaranty. 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 or provide other credit support, to any
holder
of Notes as consideration for or as an inducement to the entering into by
any
holder of Notes of any waiver or amendment of any of the terms and provisions
hereof, of the Notes, the Subsidiary Guaranty or the Intercreditor Agreement
unless such remuneration is concurrently paid, or security is concurrently
granted or other credit support concurrently provided, on the same terms,
ratably to each holder of Notes 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 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,
the Notes, the Subsidiary Guaranty or the Intercreditor Agreement, or have
directed the taking of any action provided herein, in the Notes, the Subsidiary
Guaranty or the Intercreditor Agreement 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 registered or certified mail with return receipt requested
(postage
prepaid), or (c) by a recognized overnight delivery service (with
charges
prepaid). Any such notice must be sent:
(i)if
to any
Purchaser or its nominee, to such Purchaser or nominee at the address specified
for such communications in Schedule A,
or at
such other address as such Purchaser or nominee shall have specified to the
Company in writing,
(ii)if
to any
other holder of any Note, to such holder at such address as such other holder
shall have specified to the Company in writing, or
(iii)if
to the
Company, to the Company at its address set forth at the beginning hereof
to the
attention of the Chief Financial Officer, with a copy at the same address
to the
attention of the Company’s 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.
|
Section 19.
|
Reproduction
of Documents.
|
This
Agreement and the Subsidiary Guaranty and all documents relating thereto,
including, without limitation, (a) consents, waivers and modifications
that
may hereafter be executed, (b) documents received by any Purchaser
at the
Closing (except the Notes themselves), and (c) financial statements,
certificates and other information previously or hereafter furnished to any
Purchaser, may be reproduced by such Purchaser by any photographic, photostatic,
electronic, digital 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) its
directors, trustees, officers, employees, agents, attorneys and affiliates
(to
the extent such disclosure reasonably relates to the administration of the
investment represented by its Notes), (ii) its 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 it 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 it 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 NAIC or the SVO or, in each case, any similar
organization, or any nationally recognized rating agency that requires access
to
information about such Purchaser’s investment 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 and this
Agreement. Each holder of a Note, by its acceptance of a Note, will be deemed
to
have agreed to be bound by and to be entitled to the benefits of this
Section 20
as
though it were a party to this Agreement. On reasonable request by the Company
in connection with the delivery to any holder of a Note of information required
to be delivered to such holder under this Agreement or requested by such
holder
(other than a holder that is a party to this Agreement or its nominee), such
holder will enter into an agreement with the Company embodying the provisions
of
this Section 20.
|
Section 21.
|
Substitution
of Purchaser.
|
Each
Purchaser shall have the right to substitute any one of its Affiliates as
the
purchaser of the Notes that it has agreed to purchase hereunder, by written
notice to the Company, which notice shall be signed by both such Purchaser
and
such Affiliate, shall contain such Affiliate’s agreement to be bound by this
Agreement and shall contain a confirmation by such Affiliate of the accuracy
with respect to it of the representations set forth in Section 6.
Upon
receipt of such notice, any reference to such Purchaser in this Agreement
(other
than in this Section 21)
shall
be deemed to refer to such Affiliate in lieu of such original Purchaser.
In the
event that such Affiliate is so substituted as a Purchaser hereunder and
such
Affiliate thereafter transfers to such original Purchaser all of the Notes
then
held by such Affiliate, upon receipt by the Company of notice of such transfer,
any reference to such Affiliate as a “Purchaser” in this Agreement (other than
in this Section 21)
shall
no longer be deemed to refer to such Affiliate, but shall refer to such original
Purchaser, and such original Purchaser shall again 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 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 (but
without limiting the requirement in Section 8.4
that the
notice of any optional prepayment specify a Business Day as the date fixed
for
such prepayment), 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;
provided
that if
the maturity date of any Note is a date other than a Business Day, the payment
otherwise due on such maturity date shall be made on the next succeeding
Business Day and shall include the additional days elapsed in the computation
of
interest payable on such next succeeding Business Day.
Section 22.3.Accounting
Terms.
All
accounting terms used herein which are not expressly defined in this Agreement
have the meanings respectively given to them in accordance with GAAP. Except
as
otherwise specifically provided herein, (i) all computations made pursuant
to
this Agreement shall be made in accordance with GAAP and (ii) all
financial
statements shall be prepared in accordance with GAAP.
Section 22.4.Severability.
Any
provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall (to the full extent permitted by law) not invalidate or
render unenforceable such provision in any other jurisdiction.
Section ▇▇.▇.▇▇▇▇▇▇▇▇▇▇▇▇,
Etc.
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.
For
the
avoidance of doubt, all Schedules and Exhibits attached to this Agreement
shall
be deemed to be a part hereof.
Section 22.6.Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
an original but all of which together shall constitute one instrument. Each
counterpart may consist of a number of copies hereof, each signed by less
than
all, but together signed by all, of the parties hereto.
Section 22.7.Governing
Law.
This Agreement shall be construed and enforced in accordance with, and the
rights of the parties shall be governed by, the law of the State of
Illinois,
excluding
choice-of-law principles of the law of such State that would permit the
application of the laws of a jurisdiction other than such
State.
Section 22.8.Jurisdiction
and Process; Waiver of Jury Trial. (a)
The
Company irrevocably submits to the non-exclusive jurisdiction of any Illinois
State or federal court sitting in Chicago, Illinois, over any suit, action
or
proceeding arising out of or relating to this Agreement or the Notes. To
the
fullest extent permitted by applicable law, the Company irrevocably waives
and
agrees not to assert, by way of motion, as a defense or otherwise, any claim
that it is not subject to the jurisdiction of any such court, any objection
that
it may now or hereafter have to the laying of the venue of any such suit,
action
or proceeding brought in any such court and any claim that any such suit,
action
or proceeding brought in any such court has been brought in an inconvenient
forum.
(b)The
Company consents to process being served by or on behalf of any holder of
a Note
in any suit, action or proceeding of the nature referred to in Section 22.8(a)
by
delivering a copy thereof in the manner for delivery of notices specified
in
Section 18,
to CT
Corporation, with an office on the date hereof at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, as its agent for the purpose of accepting service
of
any process within the State of Illinois. The Company agrees that such service
upon receipt (i) shall be deemed in every respect effective service of process
upon it in any such suit, action or proceeding and (ii) shall, to the fullest
extent permitted by applicable law, be taken and held to be valid personal
service upon and personal delivery to it. Notices hereunder shall be
conclusively presumed received as evidenced by a delivery receipt furnished
by
the United States Postal Service or any reputable commercial delivery service.
The Company shall pay all costs and expenses of CT Corporation in connection
herewith.
(c)Nothing
in this Section 22.8
shall
affect the right of any holder of a Note to serve process in any manner
permitted by law, or limit any right that the holders of any of the Notes
may
have to bring proceedings against the Company in the courts of any appropriate
jurisdiction or to enforce in any lawful manner a judgment obtained in one
jurisdiction in any other jurisdiction.
(d)The
parties hereto hereby waive trial by jury in any action brought on or with
respect to this Agreement, the Notes or any other document executed in
connection herewith or therewith.
* * * * *
--
If
you
are in agreement with the foregoing, please sign the form of agreement on
a
counterpart of this Agreement and return it to the Company, whereupon this
Agreement shall become a binding agreement between you and the
Company.
Very
truly yours,
By
Name:
Title:
This
Agreement is hereby accepted and agreed to as of the date thereof.
[Variation]
|
By
|
Name:
Title:
Information
Relating to Purchasers
|
Name
and Address of Purchaser
|
Principal
Amount of
Notes
to Be Purchased
|
|
American
Family Life Insurance Company
▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
Investment Division-Private Placements
|
U.S. $6,000,000
|
Payments
All
payments on or in respect of the Notes to be by bank wire transfer of Federal
or
other immediately available funds (identifying each payment as “Modine
Manufacturing Co.,
4.91%
Senior Notes due 2015, PPN 607828 B@ 8,
principal or interest”) to:
US
Bank,
N.A.
Trust
Services
▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
ABA
#▇▇▇▇▇▇▇▇▇
Beneficial
Account #180183083765
FFC
to
American Family Trust Account #000018012500 for AFLIC-Traditional
Portfolio
Credit
for CUSIP # 607828 B@ 8
Notices
All
notices and communications, including notices with respect to payments and
written confirmation of each such payment as well as quarterly and annual
financial statements, to be addressed as first provided above. Audit
confirmations should be sent to “Attn: Treasury Department” at the same
address.
Name
of
Nominee in which Notes are to be issued: BAND & Co.
Taxpayer
I.D. Number: ▇▇-▇▇▇▇▇▇▇
A-
|
Name
and Address of Purchaser
|
Principal
Amount of
Notes
to Be Purchased
|
|
American
Family Life Insurance Company
▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
Investment Division-Private Placements
|
U.S. $3,000,000
|
Payments
All
payments on or in respect of the Notes to be by bank wire transfer of Federal
or
other immediately available funds (identifying each payment as “Modine
Manufacturing Co.,
4.91%
Senior Notes due 2015, PPN 607828 B@ 8,
principal or interest”) to:
US
Bank,
N.A.
Trust
Services
▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
ABA
#▇▇▇▇▇▇▇▇▇
Beneficial
Account #180183083765
FFC
to
American Family Trust Account #000018012510 for AFLIC-Universal
Life
Portfolio
Credit
for CUSIP # 607828 B@ 8
Notices
All
notices and communications, including notices with respect to payments and
written confirmation of each such payment as well as quarterly and annual
financial statements, to be addressed as first provided above. Audit
confirmations should be sent to “Attn: Treasury Department” at the same
address.
Name
of
Nominee in which Notes are to be issued: BAND & Co.
Taxpayer
I.D. Number: ▇▇-▇▇▇▇▇▇▇
A-
|
Name
and Address of Purchaser
|
Principal
Amount of
Notes
to Be Purchased
|
|
Country
Life Insurance Company
▇▇▇▇
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Investments
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
|
U.S. $6,000,000
|
Payments
All
payments on or in respect of the Notes to be by bank wire transfer of Federal
or
other immediately available funds to:
Northern
Trust Chgo/Trust
ABA
Number ▇▇▇▇▇▇▇▇▇
Wire
Account Number 5186041000
For
Further Credit to: 26-02712
Account
Name: Country
Life Insurance Company
Representing
P & I on (list security) [BANK]
Accompanying
Information: Modine Manufacturing Co., 4.91% Senior Note,
PPN 607828 B@ 8, due date and application (as among
principal,
premium and interest) of the payment being made.
Notices
All
notices and communications to be addressed as first provided above, except
notices with respect to payments and written confirmation of each such payment,
to be addressed:
Country
Life Insurance Company
Attention:
Investment Accounting
▇▇▇▇
▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Bloomington,
Illinois 61702
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
Name
of
Nominee in which Notes are to be issued: None
A-
|
Name
and Address of Purchaser
|
Principal
Amount of
Notes
to Be Purchased
|
|
Modern
Woodmen of America
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Investment Department
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇-▇▇▇▇▇▇▇.▇▇▇
|
U.S. $12,000,000
|
Payments
All
payments on account of Notes held by such purchaser shall be made by wire
transfer of immediately available funds for credit to:
The
Northern Trust Company
▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Chicago,
IL 60675
ABA
No.
▇▇▇-▇▇▇-▇▇▇
Account
Name: Modern Woodmen of America
Account
Number 84352
Each
such
wire transfer shall set forth the name of the Company, the full title (including
the applicable coupon rate and final maturity date) of the Notes, a reference
to
PPN #: 607828 B@ 8 and the due date and application
(as
among principal, premium and interest) of the payment being made.
Notices
All
notices and communications to be addressed as first provided above, except
notices with respect to payments and written confirmation of each such payment,
to be addressed Attention: Investment Accounting Department, fax no. (▇▇▇)
▇▇▇-▇▇▇▇
Name
of
Nominee in which Notes are to be issued: None
Taxpayer
I.D. Number: ▇▇-▇▇▇▇▇▇▇
A-
|
Name
and Address of Purchaser
|
Principal
Amount of
Notes
to Be Purchased
|
|
MTL
Insurance Company
c/o
Prudential Private Placement Investors, L.P.
Gateway
Center 3, 18th
Floor
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
▇▇▇▇▇▇ ▇▇▇▇▇, Managing Director
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
|
U.S. $3,150,000
|
Payments
All
payments on account of Notes held by such purchaser shall be made by wire
transfer of immediately available funds for credit to:
Northern
Chgo/Trust
ABA
#
▇▇▇▇▇▇▇▇▇
Credit
Wire Account # 5186061000
FFC:
26-32065/MTL Insurance Company - Prudential
Each
such
wire transfer shall set forth the name of the Company, a reference to “4.91%
Senior Notes due 2015, PPN 607828 B@ 8”
and the due date and application (as among principal, interest and Make-Whole
Amount) of the payment being made.
Notices
All
notices and communications (other than notices with respect to payments and
written confirmation of each such payment) to be addressed as first provided
above.
All
other
communications and notices with respect to payment and written confirmation
of
each such payment to be addressed to:
MTL
Insurance Company
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇.
Oak
Brook, IL 60522-9060
Attention:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name
of
Nominee in which Notes are to be issued: None
Taxpayer
I.D. Number: ▇▇-▇▇▇▇▇▇▇
A-
|
Name
and Address of Purchaser
|
Principal
Amount of
Notes
to Be Purchased
|
|
The
Prudential Life Insurance Company Ltd.
c/o
Prudential Capital Group
Gateway
Center 3, 18th Floor
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇ ▇▇▇▇▇, Managing Director
Tel:
(▇▇▇) ▇▇▇-▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
E-mail:
▇▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
|
U.S. $8,500,000
|
Payments
All
principal, interest and Make-Whole Amount payments on account of Notes held
by
such purchaser shall be made by wire transfer of immediately available funds
for
credit to:
JPMorgan
Chase Bank
New
York,
NY
ABA
No.:
▇▇▇-▇▇▇-▇▇▇
Account
No.: 304243809
Account
Name: The Prudential Life Insurance Company, Ltd.
Each
such
wire transfer shall set forth the name of the Company, a reference to “4.91%
Senior Notes due 2015, Security No. INV07211, PPN 607828 B@ 8”
and the due date and application (as among principal, interest and Make-Whole
Amount) of the payment being made.
All
payments, other than principal, interest or Make-Whole Amount, on account
of
Notes held by such purchaser shall be made by wire transfer of immediately
available funds for credit to:
JPMorgan
Chase Bank
New
York,
NY
ABA
No.
▇▇▇-▇▇▇-▇▇▇
Account
No. 304199036
Account
Name: Prudential International Insurance Service Co.
Each
such
wire transfer shall set forth the name of the Company, a reference to "4.91%
Senior Notes due 2015, Security No. INV07211, PPN 607828 B@ 8"
and the
due date and application (e.g., type of fee) of the payment being
made.
Notices
All
notices and communications (other than for notices related to payments) to
be
addressed as first provided above.
Address
for Notices related to payments:
Prudential
Capital Group
2-13-10,
Nagatacho
Chiyoda-ku,
Tokyo ▇▇▇-▇▇▇▇, Japan
Telephone:
▇▇-▇-▇▇▇▇-▇▇▇▇
Facsimile:
▇▇-▇▇-▇▇▇▇-▇▇▇▇
email:
▇▇▇▇▇.▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
Attention:
▇▇▇▇▇ ▇▇▇, Team Leader of Financial Reporting Team
Name
of
Nominee in which Notes are to be issued: None
Taxpayer
I.D. Number: 00544574
A-
|
Name
and Address of Purchaser
|
Principal
Amount of
Notes
to Be Purchased
|
|
Prudential
Retirement Insurance and
Annuity
Company
Prudential
Private Placement Investors, L.P.
Gateway
Center 3, 18th
Floor
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇ ▇▇▇▇▇, Managing Director
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
|
U.S. $6,850,000
|
Payments
All
payments on account of Notes held by such purchaser shall be made by wire
transfer of immediately available funds for credit to:
▇▇
▇▇▇▇▇▇
▇▇▇▇▇
ABA
No.
▇▇▇▇▇▇▇▇▇
Account
No. P86351 (please do not include spaces)
Each
such
wire transfer shall set forth the name of the Company, a reference to “4.91%
Senior Notes due 2015, PPN 607828 B@ 8”
and the
due date and application (as among, principal, interest and Make-Whole Amount)
of the payment being made.
Notices
All
notices and communications (other than notices with respect to payments and
written confirmation of each such payment) to be addressed as first provided
above.
All
other
communications and notices with respect to payment and written confirmation
of
each such payment to be addressed to:
Prudential
Private Placement Investors, L.P.
c/o
Prudential Investment Management, Inc.
Private
Placement Trade Management
PRIAC
Administration
Gateway
Center Four, 7th
Floor
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Newark,
NJ 07102
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
Name
of
Nominee in which Notes are to be issued: None
Taxpayer
I.D. Number: ▇▇-▇▇▇▇▇▇▇
A-
|
Name
and Address of Purchaser
|
Principal
Amount of
Notes
to Be Purchased
|
|
Prudential
Retirement Insurance and
Annuity
Company
c/o
Prudential Capital Group
Two
Prudential Plaza, Suite ▇▇▇▇
▇▇▇
▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
Managing Director
|
U.S. $1,500,000
|
Payments
All
payments on account of Notes held by such purchaser shall be made by wire
transfer of immediately available funds for credit to:
▇▇
▇▇▇▇▇▇
▇▇▇▇▇ Bank
New
York,
NY
ABA
No.
▇▇▇▇▇▇▇▇▇
Account
No. P86338 (please do not include spaces)
Each
such
wire transfer shall set forth the name of the Company, a reference to “4.91%
Senior Notes due 2015, Security No. INV07211, PPN 607828 B@ 8”
and the
due date and application (as among, principal, interest and Make-Whole Amount)
of the payment being made.
Notices
All
notices and communications (other than notices with respect to payments and
written confirmation of each such payment) to be addressed as first provided
above.
All
other
communications and notices with respect to payments and written confirmation
of
each such payment to be addressed to:
Prudential
Retirement Insurance and Annuity Company
c/o
Prudential Investment Management, Inc.
Private
Placement Trade Management
PRIAC
Administration
Gateway
Center Four, 7th
Floor
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Newark,
NJ 07102
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
Name
of
Nominee in which Notes are to be issued: None
Taxpayer
I.D. Number: ▇▇-▇▇▇▇▇▇▇
A-
|
Name
and Address of Purchaser
|
Principal
Amount of
Notes
to Be Purchased
|
|
Standard
Insurance Company
▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
▇▇▇ ▇▇▇▇▇▇▇▇
Tel:
(▇▇▇) ▇▇▇-▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
|
U.S. $3,000,000
|
Payments
All
payments on or in respect of the Notes to be by bank wire transfer of Federal
or
other immediately available funds (identifying each payment as “Modine
Manufacturing Company Senior Notes due 2015, PPN # 607828 B@ 8,
principal, premium or interest”) to:
Bank
of
New York
ABA
Number: ▇▇▇▇▇▇▇▇▇
BBK
= IOC
363
Account
Name: Standard
Insurance Company
Account
Number: 343087
Representing
P & I on (list PPN & description of payment)
Notices:
All
notices of payments on or in respect of the Notes and written confirmation
of
each such payment to:
Bank
of
New York (BNY) Western Trust Company
Attention:
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇
Seattle,
WA ▇▇▇▇▇-▇▇▇▇
Tel:
(▇▇▇) ▇▇▇-▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
Duplicate
payment notices, compliance information, financials and all other correspondence
to be addressed as first provided above.
Name
of
Nominee in which Notes are to be issued: HARE & Co.
Taxpayer
I.D. Number: ▇▇-▇▇▇▇▇▇▇
A-
|
Name
and Address of Purchaser
|
Principal
Amount of
Notes
to Be Purchased
|
|
State
Farm Life and Accident Assurance
Company
▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Investment Department E-8
|
U.S. $1,000,000
|
Payments
All
payments on or in respect of the Notes to be by bank wire transfer of Federal
or
other immediately available funds to:
JPMorganChase
ABA
#▇▇▇▇▇▇▇▇▇
Attention:
SSG Private Income Processing
A/C
#900
9 000200
for
further credit to: State Farm Life and Accident Assurance Company
Custody
Account #G06895
Ref:
PPN#
607828 B@ 8
Rate:
4.91% Maturity Date: due September 2015
Notices
All
notices and communications to be addressed as first provided above, except
notices with respect to payment, and written confirmation of each such payment,
to be addressed Attention: Investment Accounting Department D-3.
Name
of
Nominee in which Notes are to be issued: None
Taxpayer
I.D. Number: ▇▇-▇▇▇▇▇▇▇
A-
|
Name
and Address of Purchaser
|
Principal
Amount of
Notes
to Be Purchased
|
|
State
Farm Life Insurance Company
▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Investment Department E-8
|
U.S. $14,000,000
|
Payments
All
payments on or in respect of the Notes to be by bank wire transfer of Federal
or
other immediately available funds to:
JPMorganChase
ABA
#▇▇▇▇▇▇▇▇▇
Attention:
SSG Private Income Processing
A/C
#900
9 000200
for
further credit to: State Farm Life Insurance Company
Custody
Account #G06893
Ref:
PPN#
607828 B@ 8
Rate:
4.91% Maturity Date: due September 2015
Notices
All
notices and communications to be addressed as first provided above, except
notices with respect to payment, and written confirmation of each such payment,
to be addressed Attention: Investment Accounting Department D-3.
Name
of
Nominee in which Notes are to be issued: None
Taxpayer
I.D. Number: ▇▇-▇▇▇▇▇▇▇
A-
|
Name
and Address of Purchaser
|
Principal
Amount of
Notes
to Be Purchased
|
|
State
of Wisconsin Investment Board
▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Portfolio Manager, Private Markets
Group
- Wisconsin Private Debt Portfolio
|
U.S. $5,000,000
|
Payments
All
payments are to be made on or before 11:00 a.m. local time on each payment
date
in immediately available funds to:
ABA
#011-00-1234 Mellon/Boston Safe Deposit
For
credit to the State of Wisconsin Investment Board
Account
#064300
With
notice of payment, including a message as to the source (identifying the
security by name and CUSIP number) and application of funds, copy of notice
of
payment to:
▇▇▇▇▇
▇▇▇▇▇▇
Accounting
Supervisor
State
of
Wisconsin Investment Board
▇▇▇
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
P.O.
Box
7842
Madison,
Wisconsin ▇▇▇▇▇-▇▇▇▇
Phone:
(▇▇▇) ▇▇▇-▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
Address
for notices other than confirmation of payment is:
Postal
Address
State
of
Wisconsin Investment Board
▇▇▇
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
P.O.
Box
7842
Madison,
Wisconsin 53707-7842
Attention:
Portfolio
Manager, Private Markets Group-Wisconsin Private Debt Portfolio
Street
Address
State
of
Wisconsin Investment Board
▇▇▇
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
Madison,
Wisconsin 53703
Attention:
Portfolio
Manager, Private Markets Group-Wisconsin Private Debt Portfolio
Name
of
Nominee in which Notes are to be issued: None
Taxpayer
I.D. Number: ▇▇-▇▇▇▇▇▇▇
A-
|
Name
and Address of Purchaser
|
Principal
Amount of
Notes
to Be Purchased
|
|
Woodmen
of the World Life Insurance
Society
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Securities Department
Telecopier
Number: (▇▇▇) ▇▇▇-▇▇▇▇
|
U.S. $5,000,000
|
Payments
All
payments on or in respect of the Notes to be by bank wire transfer of Federal
or
other immediately available funds (identifying each payment as “Modine
Manufacturing Co.,
4.91%
Senior Notes due 2015, PPN 607828 B@ 8,
principal or interest”) to:
U.S.
Bank, N.A.
ABA
#▇▇▇▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
Omaha,
Nebraska 68102
for
credit to: Woodmen of the World Life Insurance Society
Account
Number 1-487-477-7-0730
Notices
All
notices and communications, including notices with respect to payments and
written confirmation of each such payment, to be addressed as first provided
above.
Name
of
Nominee in which Notes are to be issued: None
Taxpayer
I.D. Number: ▇▇-▇▇▇▇▇▇▇
Defined
Terms
As
used
herein, the following terms have the respective meanings set forth below
or set
forth in the Section hereof following such term:
“Affiliate”
means,
at any time, and with respect to any Person, 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 with
respect to the Company, shall include 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 Subsidiary or any corporation of which the Company
and its
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.
“Aftermarket
Disposition”
means
the spin off by the Company of its aftermarket business, which occurred on
July 22, 2005, all
as
more fully described in the Company’s Form 8-K filed with the SEC on July 28,
2005.
“Anti-Terrorism
Order” means
Executive Order No. 13,224 of September 24, 2001, Blocking
Property
and Prohibiting Transactions with Persons Who Commit, Threaten to Commit
or
Support Terrorism, 66 U.S. Fed. Reg. 49, 079 (2001), as amended.
“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 Chicago, Illinois
or
New York, New York 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.
“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
Modine Manufacturing Company, a Wisconsin corporation or any successor that
becomes such in the manner prescribed in Section 10.5.
“Confidential
Information”
is
defined in Section 20.
“Consolidated
Adjusted Net Worth”
means,
as of the date of any determination thereof Consolidated Net Worth, minus
all
Investments of the Company and its Subsidiaries other than Permitted
Investments.
“Consolidated
EBITDA”
means,
for the Company and its Subsidiaries for any period, an amount equal to the
sum
of (a) Consolidated Net Income for such period plus
(b) to the extent deducted in determining Consolidated Net Income
for such
period, (i) Consolidated Interest Expense, (ii) income tax
expense
determined on a consolidated basis in accordance with GAAP,
(iii) depreciation and amortization determined on a consolidated basis
in
accordance with GAAP, and (iv) extraordinary non-cash charges, determined
on a consolidated basis in accordance with GAAP, in each case for such period;
provided,
however, that
the
Consolidated Net Income, Consolidated Interest Expense, income tax expense,
depreciation, amortization and extraordinary non-cash charges of any Person
acquired during such period that accrue prior to the date such Person becomes
a
Subsidiary or is merged into or consolidated with or otherwise acquired by
the
Company or any Subsidiary, shall be included in Consolidated EBITDA, on a
pro
forma
basis as
if such acquisition had been consummated on the first day of such
period.
“Consolidated
Interest Expense”
means,
for the Company and its Subsidiaries for any period determined on a consolidated
basis in accordance with GAAP, the sum of (a) total interest expense,
including without limitation the interest component of any payments in respect
of Capital Leases capitalized or expensed during such period (whether or
not
actually paid during such period) plus
(b) the net amount payable (or minus the net amount receivable) under
Swap
Contracts during such period (whether or not actually paid or received during
such period).
“Consolidated
Net Income”
means,
for the Company and its Subsidiaries for any period, the net income (or loss)
of
the Company and its Subsidiaries for such period determined on a consolidated
basis in accordance with GAAP, but excluding therefrom (to the extent otherwise
included therein) (a) any extraordinary gains or losses, (b) any
gains
attributable to write-ups of assets, and (c) any equity interest of
the
Company or any Subsidiary of the Company in the unremitted earnings or losses
of
any Person that is not a Subsidiary, and (d) any income (or loss)
of any
Person accrued prior to the date it becomes a Subsidiary or is merged into
or
consolidated with or otherwise acquired by the Company or any
Subsidiary.
“Consolidated
Net Worth”
means,
as of the date of any determination thereof the amount of the capital stock
accounts (net of treasury stock, at cost) plus
(or
minus
in the
case of a deficit) the surplus in retained earnings of the Company and its
Subsidiaries as determined in accordance with GAAP.
“Consolidated
Total Assets”
means as
of the date of any determination thereof, total assets of the Company and
its
Subsidiaries determined on a consolidated basis in accordance with
GAAP.
“Consolidated
Total Debt”means,
at
any time, all Debt of the Company and its Subsidiaries that would be reflected
on a consolidated balance sheet of the Company prepared in accordance with
GAAP
at such time, including Receivables Transaction Attributed Indebtedness of
any
Subsidiary or other Person to whom interests in accounts, notes receivable
and
rights related thereto have been sold, conveyed or otherwise transferred
by the
Company or any Subsidiary in connection with a Qualified Receivables
Transaction, whether or not such Subsidiary or other Person is consolidated
with
the Company under GAAP.
“Credit
Agreement”
means
that certain ▇▇▇▇▇▇▇ and Restated Credit Agreement dated as of October 27,
2004, among the Company, Bank One, NA, as Agent, and the other Lenders party
thereto, as amended, modified, supplemented, restated, refinanced or replaced
from time to time.
“Debt”
with
respect to any Person means, at any time, without duplication,
(a)its
liabilities for borrowed money and its redemption obligations in respect
of
mandatorily redeemable Preferred Stock;
(b)its
liabilities for the deferred purchase price of property acquired by such
Person
(excluding accounts payable arising in the ordinary course of business but
including all liabilities created or arising under any conditional sale or
other
title retention agreement with respect to any such property);
(c)(i) all
liabilities appearing on its balance sheet in accordance with GAAP in respect
of
Capital Leases and (ii) all liabilities which would appear on its
balance
sheet in accordance with GAAP in respect of Synthetic Leases assuming such
Synthetic Leases were accounted for as Capital Leases;
(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);
(e)all
its
liabilities in respect of letters of credit or instruments serving a similar
function issued or accepted for its account by banks and other financial
institutions (whether or not representing obligations for borrowed
money);
(f)the
aggregate Swap Termination Value of all Swap Contracts of such Person;
and
(g)Receivables
Transaction Attributed Indebtedness of such Person; and
(h)any
Guaranty of such Person with respect to liabilities of a type described in
any
of clauses (a) through (g) hereof.
“Default”
means an
event or condition the occurrence or existence of which would, with the lapse
of
time or the giving of notice or both, become an Event of Default.
“Default
Rate”
means
that rate of interest that is the greater of (i) 2.0% per annum above
the
rate of interest stated in clause (a) of the first paragraph of the Notes
or
(ii) 2.0% over the rate of interest publicly announced by Bank One,
NA in
Chicago, Illinois as its “base” or “prime” rate.
“Disclosure
Documents” is
defined in Section
5.3.
“Domestic
Subsidiary”
means
each Subsidiary of the Company that is organized under the laws of the United
States of America or any state, territory or possession thereof.
“Electronic
Delivery”
is
defined in Section 7.1(a).
“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
Materials.
“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 from time to time, and the
rules
and regulations promulgated thereunder from time to time in effect.
“Foreign
Subsidiary”
means
each Subsidiary that is not a Domestic Subsidiary.
“Form
10-K”
is
defined in Section 7.1(b).
“Form
10-Q”
is
defined in Section 7.1(a).
“GAAP”
means
generally accepted accounting principles as in effect from time to time in
the
United States of America.
“Governmental
Authority”
means
(a)the
government of
(i)the
United States of America or any State or other political subdivision thereof,
or
(ii)any
other
jurisdiction in which the Company or any Subsidiary conducts all or any part
of
its business, or which asserts jurisdiction over any properties of the Company
or any Subsidiary, or
(b)any
entity exercising executive, legislative, judicial, regulatory or administrative
functions of, or pertaining to, any such government.
“Guaranty”
means,
with respect to any Person, any obligation (except the endorsement in the
ordinary course of business of negotiable instruments for deposit or collection)
of such Person guaranteeing or in effect guaranteeing any indebtedness, dividend
or other obligation of any other Person in any manner, whether directly or
indirectly, including (without limitation) obligations incurred through an
agreement, contingent or otherwise, by such Person:
(a)to
purchase such indebtedness or obligation or any property constituting security
therefor;
(b)to
advance or supply funds (i) for the purchase or payment of such
indebtedness or obligation, or (ii) to maintain any working capital
or
other balance sheet condition or any income statement condition of any other
Person or otherwise to advance or make available funds for the purchase or
payment of such indebtedness or obligation;
(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.
“Hazardous
Material”
means
any and all pollutants, toxic or hazardous wastes or any other substances,
including all substances listed in or regulated in any Environmental law
that
might pose a hazard to health and 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, regulated,
prohibited or penalized by any applicable law including, but not limited
to,
asbestos, urea formaldehyde foam insulation, polychlorinated biphenyls,
petroleum, petroleum products, lead based paint, radon gas or similar
restricted, prohibited or penalized substances.
“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.
“Institutional
Investor”
means
(a) any Purchaser of a Note, (b) any holder of a Note holding
(together with one or more of its affiliates) more than 5% of the aggregate
principal amount of the Notes then outstanding, (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, and (d) any Related Fund of any holder of any
Note.
“Intercreditor
Agreement”
is
defined in Section 2.2(b).
“Investments”
means
all investments, in cash or by delivery of property, made directly or indirectly
in any property or assets or in any Person, whether by acquisition of shares
of
capital stock, Debt or other obligations or Securities or by loan, advance,
capital contribution or otherwise; provided
that
“Investments”
shall
not mean or include routine investments in property to be used or consumed
in
the ordinary course of business. Investments shall be valued at the original
cost thereof, without allowance for any subsequent write-off or appreciation
or
depreciation therein, but less any amount repaid or recovered in cash on
account
of capital or principal.
“Lien”
means,
with respect to any Person, any mortgage, lien, pledge, charge, security
interest or other encumbrance, or any interest or title of any vendor, lessor,
lender or other secured party to or of such Person under any conditional
sale or
other title retention agreement or Capital Lease, upon or with respect to
any
property or asset of such Person (including in the case of stock, stockholder
agreements, voting trust agreements and all similar arrangements).
“Make-Whole
Amount”
is
defined in Section 8.6.
“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 and the Notes, or (c) the validity or enforceability
of this
Agreement, the Notes or the Subsidiary Guaranty.
“Memorandum”
is
defined in Section 5.3.
“Multiemployer
Plan”
means
any Plan that is a “multiemployer plan” (as such term is defined in
section 4001(a)(3) of ERISA).
“NAIC”
means
the National Association of Insurance Commissioners or any successor
thereto.
“Notes”
is
defined in Section 1.
“Officer’s
Certificate”
means a
certificate of a Senior Financial Officer or of any other officer of the
Company
whose responsibilities extend to the subject matter of such
certificate.
“PBGC”
means
the Pension Benefit Guaranty Corporation referred to and defined in ERISA
or any
successor thereto.
“Permitted
Investments”
means,
for the Company and its Subsidiaries on a consolidated basis, the following
Investments:
(a)Investments
existing as of the date of the Closing and described on Schedule
10.2 hereto;
(b)Investments
by the Company and its Subsidiaries in and to Subsidiaries, including any
Investment in a corporation which, after giving effect to such Investment,
will
become a Subsidiary;
(c)Investments
in property or assets to be used in the ordinary course of the business of
the
Company and its Subsidiaries as described in Section 10.7
of this
Agreement;
(d)Investments
in direct obligations of the United States of America or any agency or
instrumentality of the United States of America, the payment or guarantee
of
which constitutes a full faith and credit obligation of the United States
of
America, in either case, maturing within twelve months from the date of
acquisition thereof;
(e)demand
deposit accounts maintained in the ordinary course of business with a depository
institution described in clause (i) of this definition ;
(f)Investments
in (i) preferred stocks rated “A3”
or
better by ▇▇▇▇▇’▇ Investors Service, Inc. (“▇▇▇▇▇’▇”)
or
“A-”
or
better by Standard & Poor’s Ratings Group (“S&P”),
(ii) adjustable rate preferred stock funds rated “A3”
or
better by ▇▇▇▇▇’▇ or “A-”
or
better by S&P, and (iii) municipal notes with credit support provided
by, and putable (within a period not to exceed one year from the date of
acquisition) to, financial institutions rated “A”
or
better by ▇▇▇▇▇’▇, S&P or Fitch Ratings (“Fitch”);
(g)Investments
in tax exempt variable rate demand notes rated “AA”
or
better by ▇▇▇▇▇’▇ or S&P, provided
that
such notes permit the Company to require the issuer to repurchase such notes
after a period of not more than one year from the date of acquisition
thereof;
(h)with
respect to Investments of a Foreign Subsidiary only, Investments in direct
obligations of the national government of the jurisdiction in which such
Foreign
Subsidiary is organized and primarily and located, maturing within twelve
months
from the date of acquisition thereof;
(i)Investments
in certificates of deposit and time deposits maturing within 270 days from
the
date of issuance thereof, either (1) issued by a bank or trust company
organized under the laws of the United States or any State thereof, Canada
or
any Province thereof, Japan, Great Britain, Germany, France, Italy, Switzerland,
the Netherlands, Austria, Hungary or South Korea, having capital, surplus
and
undivided profits aggregating at least $100,000,000 (or the equivalent under
local currency); provided
that at
the time of acquisition thereof by the Company or a Subsidiary, the senior
unsecured long-term debt of such bank or trust company or of the holding
company
of such bank or trust company is rated “A-1”
or
better by S&P, or “P-1”
or
better by Moody’s, or (2) issued by any bank or trust company organized
under the laws of the United States or any state thereof to the extent that
such
Investments are fully insured by the Federal Depository Insurance
Corporation;
(j)Investments
in repurchase agreements with respect to any Security described in
clause (d) of this definition entered into with a depository institution
or
trust company acting as principal described in clause (i) of this
definition if such repurchase agreements are by their terms to be performed
by
the repurchase obligor and such repurchase agreements are deposited with
a bank
or trust company of the type described in clause (i) of this
definition;
(k)Investments
in commercial paper of corporations organized under the laws of the United
States or any state thereof maturing in 270 days or less from the
date of
issuance which, at the time of acquisition by the Company or any Subsidiary,
is
accorded a rating of “A-1”
or
better by S&P or “P-2”
or
better by Moody’s; and
(l)Investments
of the Company not described in the foregoing clauses (a) through (k),
provided
that the
aggregate amount of all such Investments shall not at any time exceed the
greater of (i) $40,000,000 or (ii) 10% of Consolidated Net Worth at
such
measurement date.
“Person”
means an
individual, partnership, corporation, limited liability company, association,
trust, unincorporated organization, business entity or Governmental
Authority.
“Plan”
means an
“employee benefit plan” (as defined in section 3(3) of ERISA) subject to
Title I of ERISA that is or, within the preceding five years, has
been
established or maintained, or to which contributions are or, within the
preceding five years, have been made or required to be made, by the Company
or
any ERISA Affiliate or with respect to which the Company or any ERISA Affiliate
may have any liability.
“Preferred
Stock”
means
any class of capital stock of a Person that is preferred over any other class
of
capital stock (or similar equity interests) of such Person as to the payment
of
dividends or the payment of any amount upon liquidation or dissolution of
such
Person.
“property”
or
“properties”
means,
unless otherwise specifically limited, real or personal property of any kind,
tangible or intangible, ▇▇▇▇▇▇ or inchoate.
“Purchaser”
is
defined in the first paragraph of this Agreement.
“QPAM
Exemption”
means
Prohibited Transaction Class Exemption 84-14 issued by the United States
Department of Labor.
“Qualified
Institutional Buyer”
means
any Person who is a “qualified institutional buyer” within the meaning of such
term as set forth in Rule 144A(a)(1) under the Securities Act.
“Qualified
Receivables Transaction”
means
any transaction or series of transactions that may be entered into by the
Company or any Subsidiary pursuant to which the Company or any Subsidiary
may
sell, convey or otherwise transfer to a newly-formed Subsidiary or other
special-purpose entity, or any other Person, any accounts or notes receivable
and rights related thereto on a limited recourse basis, provided
that
(a) in the opinion of a Responsible Officer of the Company, such sale,
conveyance or transfer is for fair value and in the best interests of the
Company and its Subsidiaries, (b) such sale, conveyance or transfer
qualifies as a sale under GAAP and (c) the Receivables Transaction
Attributed Indebtedness incurred in such transaction or series of transactions
and outstanding at any time thereafter does not at any time exceed 15% of
Consolidated Total Asset at the time of any determination.
“Receivables
Transaction Attributed Indebtedness”
means
the aggregate amount of obligations outstanding under the legal documentation
entered into as part of any Qualified Receivables Transaction on any date
of
determination that would be characterized as principal if such qualified
Receivables Transaction were structured as a secured lending transaction
rather
than as a purchase.
“Related
Fund”
means,
with respect to any holder of any Note, any fund or entity that (i) invests
in Securities or bank loans, and (ii) is advised or managed by such
holder,
the same investment advisor as such holder or by an affiliate of such holder
or
such investment advisor.
“Required
Holders”
means,
at any time, the holders of at least 51% in principal amount of the Notes
at the
time outstanding (exclusive of Notes then owned by the Company or any of
its
Affiliates).
“Responsible
Officer”
means
any Senior Financial Officer and any other officer of the Company with
responsibility for the administration of the relevant portion of this
Agreement.
“Sale
and Leaseback Transaction”
means
any arrangement whereby the Company or any Subsidiary shall sell, transfer
or
otherwise dispose of any property owned by the Company or any Subsidiary
to any
Person other than the Company or a Subsidiary and thereupon the Company or
any
Subsidiary shall lease or intend to lease, as lessee, the same property or
any
part thereof.
“SEC”
shall
mean the Securities and Exchange Commission of the United States, or any
successor thereto.
“Securities”or
Security”
shall
have the same meaning as in Section 2(1) of the Securities
Act.
“Securities
Act”
means
the Securities Act of 1933, as amended from time to time, and the rules and
regulations promulgated thereunder from time to time in effect.
“Senior
Debt”
means
all Debt of the Company which is not expressed to be subordinate or junior
in
rank to any other Debt of the Company.
“Senior
Financial Officer”
means
the chief financial officer, treasurer or controller of the
Company.
“Shelf
Note Purchase Agreement”
means
the Note Purchase and Private Shelf Agreement dated as of September 29,
2000 between the Company and the purchasers named therein, as amended to
date,
and as it may be further amended, modified, supplemented, restated, refinanced
or replaced from time to time.
“Shelf
Notes”
means
the senior promissory notes of the Company issued from time to time pursuant
to
the Shelf Note Purchase Agreement, severally, as such notes may be amended,
modified, supplemented, restated, refinanced or replaced from time to
time.
“Significant
Subsidiary”
means at
any time any Subsidiary that would at such time constitute a “significant
subsidiary” (as such term is defined in Regulation S-X of the Securities and
Exchange Commission as in effect on the date of Closing) of the
Company.
“Subsidiary”
means,
as to any Person, any other Person in which such first Person or one or more
of
its Subsidiaries or such first 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 second Person,
and
any partnership or joint venture if more than a 50% interest in the profits
or
capital thereof is owned by such first Person or one or more of its Subsidiaries
or such first 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”
is
defined in Section
2.2(a) and
shall
include any Subsidiary which is required to become a Subsidiary Guarantor
pursuant to the requirements of Section 9.8.
“Subsidiary
Guaranty”
is
defined in Section 2.2(a)
and
shall include any Subsidiary Guaranty delivered pursuant to Section 9.8.
“Subsidiary
Stock”
means,
with respect to any Person, the stock or other equity interests (or any options
or warrants to purchase stock or other equity interests or other Securities
exchangeable for or convertible into stock or other equity interests) of
any
subsidiary of such Person.
“SVO”means
the
Securities Valuation Office of the NAIC or any successor to such
Office.
“Swap
Contract”
means
(a) any and all interest rate swap transactions, basis swap transactions,
basis swaps, credit derivative transactions, forward rate transactions,
commodity swaps, commodity options, forward commodity contracts, equity or
equity index swaps or options, bond or bond price or bond index swaps or
options
or forward foreign exchange transactions, cap transactions, floor transactions,
currency options, spot contracts or any other similar transactions or any
of the
foregoing (including, but without limitation, any options to enter into any
of
the foregoing), and (b) any and all transactions of any kind, and
the
related confirmations, which are subject to the terms and conditions of,
or
governed by, any form of master agreement published by the International
Swaps
and Derivatives Association, Inc., any International Foreign Exchange Master
Agreement.
“Swap
Termination Value”
means,
in respect of any one or more Swap Contracts, after taking into account the
effect of any legally enforceable netting agreement relating to such Swap
Contracts, (a) for any date on or after the date such Swap Contracts
have
been closed out and termination value(s) determined in accordance therewith,
such termination value(s), and (b) for any date prior to the date
referenced in clause (a), the amounts(s) determined as the mark-to-market
values(s) for such Swap Contracts, as determined based upon one or more
mid-market or other readily available quotations provided by any recognized
dealer in such Swap Contracts.
“Synthetic
Lease”
means,
at any time, any lease (including leases that may be terminated by the lessee
at
any time) of any property (a) that is accounted for as an operating
lease
under GAAP and (b) in respect of which the lessee retains or obtains
ownership of the property so leased for U.S. federal income tax purposes,
other
than any such lease under which such Person is the lessor.
“USA
Patriot Act”
means
United States Public Law 107-56, Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot
Act)
Act of
2001, as amended from time to time, and the rules and regulations promulgated
thereunder from time to time in effect.
“Wholly-owned
Subsidiary”
means,
at any time, any Subsidiary one hundred percent (100%) of all of the equity
interests (except directors’ qualifying shares) and voting interests of which
are owned by any one or more of the Company and the Company’s other Wholly-owned
Subsidiaries at such time.
[Form
of Note]
This
Note
has not been registered under the Securities Act of 1933, as amended, and,
unless so registered, may not be transferred, sold or otherwise disposed
of
except pursuant to an exemption from registration under said Act or if said
Act
does not apply.
Modine
Manufacturing Company
4.91%
Senior Note due September 29, 2015
No.
[_________] [Date]
$[____________] PPN
607828 B@8
For
Value
Received,
the
undersigned, Modine Manufacturing Company (herein called the “Company”),
a
corporation organized and existing under the laws of the State of Wisconsin,
hereby promises to pay to [________________], or registered assigns, the
principal sum of [________________] Dollars
(or so
much thereof as shall not have been prepaid) on September 29, 2015,
with
interest (computed on the basis of a 360-day year of twelve 30-day months)
on
the unpaid balance hereof at the rate of (a) 4.91% per annum from
the date
hereof, payable semiannually, on the twenty-ninth day of March and September
in
each year, commencing with the March 29 or September 29 next
succeeding the date hereof, until the principal hereof shall have become
due and
payable, and (b) to the extent permitted by law, on any overdue payment
of
interest and, during the continuance of an Event of Default, on such unpaid
balance and on any overdue payment of any Make-Whole Amount, at a rate per
annum
from time to time equal to the greater of (i) 6.91% or (ii) 2.0%
over
the rate of interest publicly announced by JPMorgan
Chase Bank, N.A. from time to time in Chicago, Illinois as
its
“base” or “prime” rate payable semiannually as aforesaid (or, at the option of
the registered holder hereof, on demand).
Payments
of principal of, interest on and any Make-Whole Amount with respect to this
Note
are to be made in lawful money of the United States of America at the principal
office of the Company in Racine, Wisconsin, or at such other place as the
Company shall have designated by written notice to the holder of this Note
as
provided in the Note Purchase Agreement referred to below.
This
Note
is one of a series of Senior Notes (herein called the “Notes”)
issued
pursuant to the Note Purchase Agreement, dated as of September 29,
2005 (as
from time to time amended, the “Note
Purchase Agreement”),
between the Company and the respective Purchasers named therein and is entitled
to the benefits thereof. Each holder of this Note will be deemed, by its
acceptance hereof, to have (i) agreed to the confidentiality provisions
set
forth in Section 20
of the
Note Purchase Agreement and (ii) made the representation set forth
in
Section 6.3
of the
Note Purchase Agreement. Unless otherwise indicated, capitalized terms used
in
this Note shall have the respective meanings ascribed to such terms in the
Note
Purchase Agreement.
This
Note
is a registered Note and, as provided in the Note Purchase Agreement, upon
surrender of this Note for registration of transfer, duly endorsed, or
accompanied by a written instrument of transfer duly executed, by the registered
holder hereof or such holder’s attorney duly authorized in writing, a new Note
for a like principal amount will be issued to, and registered in the name
of,
the transferee. Prior to due presentment for registration of transfer, the
Company may treat the person in whose name this Note is registered as the
owner
hereof for the purpose of receiving payment and for all other purposes, and
the
Company will not be affected by any notice to the contrary.
This
Note
is subject to optional prepayment, in whole or from time to time in part,
at the
times and on the terms specified in the Note Purchase Agreement, but not
otherwise.
If
an
Event of Default occurs and is continuing, the principal of this Note may
be
declared or otherwise become due and payable in the manner, at the price
(including any applicable Make-Whole Amount) and with the effect provided
in the
Note Purchase Agreement.
This
Note shall be construed and enforced in accordance with, and the rights of
the
parties shall be governed by, the law of the State of Illinois, excluding
choice-of-law principles of the law of such State that would require application
of the laws of a jurisdiction other than such State.
Modine
Manufacturing Company
By:
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title:
VP, Finance and Chief Financial Officer