SEABOARD CORPORATION
Note Purchase Agreement
Dated as of June 1, 1995
$125,000,000 7.88% Senior Notes Due June 1, 2007
TABLE OF CONTENTS
PAGE
1. PURCHASE AND SALE OF NOTES. . . . . . . . . . . . . . . . . . . . . 1
1.1 Issue of Notes.. . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 The Closing. . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.3 Purchaser Representations. . . . . . . . . . . . . . . . . . . 2
1.4 Expenses.. . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2. WARRANTIES AND REPRESENTATIONS. . . . . . . . . . . . . . . . . . . 4
2.1 Nature of Business.. . . . . . . . . . . . . . . . . . . . . . 4
2.2 Financial Statements; Indebtedness; Material Adverse Change. . 4
2.3 Subsidiaries and Affiliates. . . . . . . . . . . . . . . . . . 5
2.4 Title to Properties. . . . . . . . . . . . . . . . . . . . . . 5
2.5 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.6 Pending Litigation.. . . . . . . . . . . . . . . . . . . . . . 6
2.7 Full Disclosure. . . . . . . . . . . . . . . . . . . . . . . . 6
2.8 Corporate Organization and Authority.. . . . . . . . . . . . . 6
2.9 Charter Instruments, Other Agreements. . . . . . . . . . . . . 7
2.10 Restrictions on Company and Subsidiaries.. . . . . . . . . . . 7
2.11 Compliance with Law. . . . . . . . . . . . . . . . . . . . . . 7
2.12 ERISA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.13 Environmental Compliance.. . . . . . . . . . . . . . . . . . . 8
2.14 Sale of Notes is Legal and Authorized; Obligations are Enforceable.
9
2.15 Governmental Consent to Sale of Notes. . . . . . . . . . . . . 10
2.16 No Defaults under Notes. . . . . . . . . . . . . . . . . . . . 10
2.17 Private Offering of Notes. . . . . . . . . . . . . . . . . . . 10
2.18 Use of Proceeds of Notes.. . . . . . . . . . . . . . . . . . . 10
3. CLOSING CONDITIONS. . . . . . . . . . . . . . . . . . . . . . . . . 11
3.1 Opinions of Counsel. . . . . . . . . . . . . . . . . . . . . . 11
3.2 Warranties and Representations True. . . . . . . . . . . . . . 11
3.3 Officers' Certificates.. . . . . . . . . . . . . . . . . . . . 11
3.4 Legality.. . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.5 Private Placement Number.. . . . . . . . . . . . . . . . . . . 11
3.6 Expenses.. . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3.7 Other Purchasers.. . . . . . . . . . . . . . . . . . . . . . . 12
3.8 Proceedings Satisfactory.. . . . . . . . . . . . . . . . . . . 12
4. PRINCIPAL PAYMENTS. . . . . . . . . . . . . . . . . . . . . . . . . 12
4.1 Required Prepayments.. . . . . . . . . . . . . . . . . . . . . 12
4.2 Optional Prepayments.. . . . . . . . . . . . . . . . . . . . . 12
4.3 Prepayments Among Noteholders. . . . . . . . . . . . . . . . . 13
4.4 Special Prepayments. . . . . . . . . . . . . . . . . . . . . . 13
4.5 Notation of Notes on Prepayment. . . . . . . . . . . . . . . . 14
4.6 No Other Prepayments; Acquisition of Notes.. . . . . . . . . . 15
5. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES . . . . . . . . . . . 15
5.1 Registration of Notes. . . . . . . . . . . . . . . . . . . . . 15
5.2 Exchange of Notes. . . . . . . . . . . . . . . . . . . . . . . 15
5.3 Replacement of Notes.. . . . . . . . . . . . . . . . . . . . . 16
5.4 Issuance Taxes.. . . . . . . . . . . . . . . . . . . . . . . . 16
6. COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
6.1 Payment of Taxes and Claims. . . . . . . . . . . . . . . . . . 17
6.2 Maintenance of Properties; Corporate Existence; etc. . . . . . 17
6.3 Payment of Notes and Maintenance of Office.. . . . . . . . . . 18
6.4 Merger; Acquisition. . . . . . . . . . . . . . . . . . . . . . 18
6.5 Liens. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
6.6 Consolidated Tangible Net Worth. . . . . . . . . . . . . . . . 21
6.7 Funded Debt. . . . . . . . . . . . . . . . . . . . . . . . . . 21
6.8 Transfer of Property.. . . . . . . . . . . . . . . . . . . . . 21
6.9 Subsidiary Debt. . . . . . . . . . . . . . . . . . . . . . . . 24
6.10 ERISA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
6.11 Line of Business.. . . . . . . . . . . . . . . . . . . . . . . 25
6.12 Transactions with Affiliates.. . . . . . . . . . . . . . . . . 25
6.13 Guaranties.. . . . . . . . . . . . . . . . . . . . . . . . . . 26
6.14 Private Offering.. . . . . . . . . . . . . . . . . . . . . . . 26
7. INFORMATION AS TO COMPANY . . . . . . . . . . . . . . . . . . . . . 26
7.1 Financial and Business Information.. . . . . . . . . . . . . . 26
7.2 Officers' Certificates.. . . . . . . . . . . . . . . . . . . . 29
7.3 Accountants' Certificates. . . . . . . . . . . . . . . . . . . 30
7.4 Inspection.. . . . . . . . . . . . . . . . . . . . . . . . . . 30
8. EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . 30
8.1 Nature of Events.. . . . . . . . . . . . . . . . . . . . . . . 30
8.2 Default Remedies.. . . . . . . . . . . . . . . . . . . . . . . 32
8.3 Annulment of Acceleration of Notes.. . . . . . . . . . . . . . 33
9. INTERPRETATION OF THIS AGREEMENT. . . . . . . . . . . . . . . . . . 33
9.1 Terms Defined. . . . . . . . . . . . . . . . . . . . . . . . . 33
9.2 Generally Accepted Accounting Principles.. . . . . . . . . . . 45
9.3 Directly or Indirectly.. . . . . . . . . . . . . . . . . . . . 46
9.4 Section Headings and Table of Contents and Construction. . . . 46
9.5 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . 46
10. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
10.1 Communications.. . . . . . . . . . . . . . . . . . . . . . . . 46
10.2 Confidentiality. . . . . . . . . . . . . . . . . . . . . . . . 47
10.3 Reproduction of Documents. . . . . . . . . . . . . . . . . . . 48
10.4 Survival.. . . . . . . . . . . . . . . . . . . . . . . . . . . 48
10.5 Successors and Assigns.. . . . . . . . . . . . . . . . . . . . 48
10.6 Amendment and Waiver.. . . . . . . . . . . . . . . . . . . . . 48
10.7 Payments on Notes. . . . . . . . . . . . . . . . . . . . . . . 50
10.8 Entire Agreement.. . . . . . . . . . . . . . . . . . . . . . . 50
10.9 Duplicate Originals, Execution in Counterpart. . . . . . . . . 51
Annex 1 -- Information as to Purchasers
Annex 2 -- Payment Instructions at Closing
Annex 3 -- Information as to Company
Exhibit A -- Form of 7.88% Senior Note Due June 1, 2007
Exhibit B1 -- Form of Company Counsel's Closing Opinion
Exhibit B2 -- Form of Special Counsel's Closing Opinion
Exhibit C -- Form of Officers' Certificate
Exhibit D -- Form of Secretary's Certificate
SEABOARD CORPORATION
NOTE PURCHASE AGREEMENT
$125,000,000 7.88% Senior Notes Due June 1, 2007
Dated as of June 1, 1995
[Separately Addressed to Each of the
Purchasers Listed on Annex 1 hereto]
Ladies and Gentlemen:
SEABOARD CORPORATION (together with its successors and assigns, the
"Company"), a Delaware corporation, hereby agrees with you as follows:
1. PURCHASE AND SALE OF NOTES
1.1 Issue of Notes.
The Company will authorize the issue of One Hundred Twenty-Five Million
Dollars ($125,000,000) in aggregate principal amount of its seven and eighty-
eight one-hundredths percent (7.88%) Senior Notes due June 1, 2007 (the
"Notes"). The Notes shall be in the form of Exhibit A hereto, and shall have
the terms as herein and therein provided.
1.2 The Closing.
(a) Purchase and Sale of Notes. The Company hereby agrees to sell
to you and you hereby agree to purchase from the Company, in
accordance with the provisions hereof, the aggregate principal
amount of Notes set forth below your name on Annex 1 hereto at
one hundred percent (100%) of the principal amount thereof.
(b) The Closing. The closing (the "Closing") of the Company's sale
of Notes will be held on June 1, 1995 (the "Closing Date") at
9:00 a.m., local time, at the office of ▇▇▇▇ & ▇▇▇▇▇▇, your
special counsel. At the Closing, the Company will deliver to
you one or more Notes (as set forth below your name on Annex 1
hereto), in the denominations indicated on Annex 1 hereto, in
the aggregate principal amount of your purchase, dated the
Closing Date and payable to you or payable as indicated on Annex
1 hereto, against payment by federal funds wire transfer in
immediately available funds of the purchase price thereof, as
directed by the Company on Annex 2 hereto.
(c) Other Purchasers. Contemporaneously with the execution and
delivery hereof, the Company is entering into a separate Note
Purchase Agreement identical (except for the name and signature
of the purchaser) hereto (this Agreement and such other
separate Note Purchase Agreements collectively, the "Note
Purchase Agreements") with each other purchaser (each an "Other
Purchaser") listed on Annex 1 hereto, providing for the sale to
each Other Purchaser of Notes in the aggregate principal amount
set forth below its name on such Annex. The sales of the Notes
to you and to each Other Purchaser are to be separate sales.
1.3 Purchaser Representations.
(a) Purchase for Investment. You represent that you are purchasing
the Notes for your own account, for the account of another for
which you have sole investment discretion, or for a trust
account for which you are the trustee, and not with a view to or
for sale in connection with any distribution thereof within the
meaning of the Securities Act; provided, that you have the right
to dispose of the Notes, or any part thereof, if you deem it
advisable to do so, either pursuant to a registration of the
Notes under the Securities Act and other applicable securities
acts or pursuant to an applicable exemption from the
requirement of such registration. It is understood that, in
making the representations set out in Section 2.14 hereof and
Section 2.15 hereof, the Company is relying, to the extent
applicable, upon your representation as aforesaid.
(b) ERISA. You represent, with respect to the funds with which you
are acquiring the Notes, and solely for the purpose of
determining whether such purchase is a "prohibited transaction"
(as provided for in section 406 of ERISA or section 4975 of the
IRC), that all of such funds are from or are attributable to one
or more of:
(i) General Account -- your general account assets or assets of
one or more segments of such general account, as the case
may be, and that either,
(A) 10% Exemption -- as of the Closing Date, such
acquisition would be exempt under the provisions of
the proposed prohibited transaction class exemption
published by the Department of Labor in the Federal
Register on August 22, 1994 (59 F.R. 43134, August 22,
1994); provided that you are relying on the Company's
representations set forth in Section 2.12 in
determining
(I) whether there is any Pension Plan that has an
interest in your "insurance company general
account" (as defined in such proposed exemption)
and in respect of which there exists "general
account reserves" (as determined under Section
807(d) of the IRC) for the contract or contracts
held by or on behalf of such Pension Plan, and
(II) whether such reserves, when aggregated with the
amount of the "reserves" for the contracts held
by or on behalf of any other "employee benefit
plans" maintained by the same "employer" in
respect of such Pension Plan or "affiliates"
thereof or by the same "employee organization" in
respect of such Pension Plan, exceed ten percent
(10%) of the total of all liabilities of such
insurance company general account (it being
understood that, in making such determination,
you have relied upon the assumption that the
total of all such liabilities referred to in such
proposed exemption shall mean your liabilities
backed by the assets of your insurance company
general account) ("reserves" are determined under
Section 807(d) of the IRC, "employee benefit
plans" is defined in section 3(3) of ERISA,
"employer" is defined in section 3(5) of ERISA,
"affiliates" is defined in the proposed
exemption, and "employee organization" is defined
in section 3(4) of ERISA), or
(B) General Account Exemption -- no part of such assets
constitutes assets of an "employee pension benefit
plan" (as defined in section 3(2)(A) of ERISA)
maintained by the Company or any ERISA Affiliate or of
a "plan" (as defined in section 4975 of the IRC)
maintained by any ERISA Affiliate (it is understood
that you are relying on the present and continuing
validity and applicability of Department of Labor
Interpretive Bulletin 29 C.F.R. 2509.75-2(b));
(ii) Separate Account -- a "separate account" (as defined in
section 3 of ERISA),
(A) 10% Pooled Separate Account -- in respect of which all
requirements for an exemption under Department of
Labor Prohibited Transaction Class Exemption 90-1 are
met with respect to the use of such funds to purchase
the Notes,
(B) Identified Plan Assets -- that is comprised of
employee benefit plans identified by you in writing
and with respect to which the Company hereby warrants
and represents that, as of the Closing Date, neither
the Company nor any ERISA Affiliate is a "party in
interest" (as defined in section 3 of ERISA) or a
"disqualified person" (as defined in section 4975 of
the IRC) with respect to any plan so identified, or
(C) Guaranteed Separate Account -- that is maintained
solely in connection with fixed contractual
obligations of an insurance company, under which any
amounts payable, or credited, to any employee benefit
plan having an interest in such account and to any
participant or beneficiary of such plan (including an
annuitant) are not affected in any manner by the
investment performance of the separate account (as
provided by 29 C.F.R. 2510.3-101(h)(1)(iii));
(iii) Qualified Professional Asset Manager -- an "investment
fund" managed by a "qualified professional asset
manager" (as such terms are defined in Part V of
Department of Labor Prohibited Transaction Class
Exemption 84-14) with respect to which the
requirements of such exemption have been satisfied,
provided that in making this representation, it is
assumed that the conditions set forth in Part I(a),
Part I(d) and Part I(e) of such Exemption have been
satisfied;
(iv) Excluded Plan -- an employee benefit plan that is excluded
from the provisions of section 406(a) of ERISA by virtue of
section 4(b) of ERISA; or
(v) Exempt Funds -- a separate investment account that is not
subject to ERISA and no funds of which come from assets of
an "employee benefit plan" or a "plan" or any other
entity that is deemed to hold assets of an "employee
benefit plan" or a "plan," ("employee benefit plan" is
defined in section 3 of ERISA, and "plan" is defined in
section 4975(e)(1) of the IRC).
1.4 Expenses.
Whether or not the Notes are sold, the Company shall pay, at the Closing
(if the Notes are sold, and otherwise upon receipt of any statement or invoice
therefor), the statement presented at the Closing by your special counsel for
reasonable fees and disbursements incurred in connection herewith, each
additional statement for reasonable fees and disbursements (promptly upon
receipt thereof) of your special counsel rendered after the Closing in
connection with the issuance of the Notes, and all expenses incurred in
complying with each of the conditions to closing set forth in Section 3 hereof.
2. WARRANTIES AND REPRESENTATIONS
To induce you to enter into this Agreement and to purchase the Notes
listed on Annex 1 hereto below your name, the Company warrants and represents,
as of the Closing Date, as follows:
2.1 Nature of Business.
The Private Placement Memorandum (together with all exhibits and annexes
thereto, the "Placement Memorandum"), dated April 1995, and prepared by ▇▇▇▇▇▇▇
▇▇▇▇▇ & Co. (copy of which previously has been delivered to you), correctly
describes the general nature of the business and principal Properties of the
Company and the Subsidiaries as of the Closing Date.
2.2 Financial Statements; Indebtedness; Material Adverse Change.
(a) Financial Statements. The Company has provided you with the
financial statements described in Part 2.2(a) of Annex 3 hereto.
Such financial statements have been prepared in accordance with
generally accepted accounting principles consistently applied,
and present fairly, in all material respects, the consolidated
financial position of the Company and its consolidated
subsidiaries as of such dates and the results of their
operations and cash flows for such periods.
(b) Indebtedness. Part 2.2(b) of Annex 3 hereto lists all
Indebtedness of the Company and the Subsidiaries as of the
Closing Date, and provides the following information with
respect to each item of such Indebtedness: the obligor, the
holder thereof, the outstanding amount, the current portion, and
the collateral securing such Indebtedness, if any.
(c) Material Adverse Change. Since December 31, 1994 there has been
no change in the business, prospects, profits, Properties or
condition (financial or otherwise) of the Company or any of the
Subsidiaries except changes in the ordinary course of business
that, in the aggregate for all such changes, could not
reasonably be expected to have a Material Adverse Effect.
2.3 Subsidiaries and Affiliates.
Part 2.3 of Annex 3 hereto states
(a) the name of each of the Subsidiaries, its jurisdiction of
incorporation and the percentage of its Voting Stock owned by
the Company and each other Subsidiary, and identifies each
Material Subsidiary, and
(b) the name of each Affiliate (other than natural persons who are
Affiliates solely as a result of their membership in the
families of officers or directors) and the nature of the
affiliation.
Each of the Company and the Subsidiaries has good and marketable title to all
of the shares it purports to own of the stock of each Subsidiary, free and
clear in each case of any Lien. All such shares have been duly issued and are
fully paid and nonassessable.
2.4 Title to Properties.
(a) Each of the Company and the Subsidiaries has good title to all
of the Property reflected in the most recent balance sheet
referred to in Section 2.2 hereof (except as sold or otherwise
disposed of in the ordinary course of business), except for such
failures to have good title as are immaterial to such financial
statements and that, in the aggregate for all such failures,
could not reasonably be expected to have a Material Adverse
Effect. All such Property is free from Liens not permitted by
Section 6.5 hereof.
(b) Each of the Company and the Subsidiaries owns, possesses or has
the right to use all of the patents, trademarks, service marks,
trade names, copyrights, licenses, and rights with respect
thereto, necessary for the present and currently planned future
conduct of its business, without any known conflict with the
rights of others, except for such failures to own, possess, or
have the right to use, that, in the aggregate for all such
failures, could not reasonably be expected to have a Material
Adverse Effect.
2.5 Taxes.
(a) Returns Filed; Taxes Paid.
(i) All tax returns required to be filed by the Company and
each Subsidiary and any other Person with which the Company
or any Subsidiary files or has filed a consolidated return
in any jurisdiction have been filed on a timely basis, and
all taxes, assessments, fees and other governmental charges
upon each of the Company, such Subsidiary and any such
Person, and upon any of their respective Properties, income
or franchises, that are due and payable have been paid,
except for such tax returns and such tax payments that
could not, in the aggregate for all such tax returns and
payments, reasonably be expected to have a Material Adverse
Effect.
(ii) All liabilities of each of the Company, the Subsidiaries
and the other Persons referred to in Section 2.5(a)(i)
hereof with respect to federal income taxes have been
finally determined except for the fiscal years 1992 through
1994, the only years not closed by the completion of an
audit or the expiration of the statute of limitations.
(b) Book Provisions Adequate.
(i) The amount of the liability for taxes reflected in each of
the consolidated balance sheets referred to in Section 2.2
hereof is in each case an adequate provision for taxes as
of the dates of such balance sheets (including, without
limitation, any payment due pursuant to any tax sharing
agreement) as are or may become payable by any one or more
of the Company and the other Persons consolidated with the
Company in such financial statements in respect of all tax
periods ending on or prior to such dates.
(ii) The Company does not know of any proposed additional tax
assessment against it or any such Person that is not
reflected in full in the most recent balance sheet referred
to in Section 2.2 hereof.
2.6 Pending Litigation.
(a) There are no proceedings, actions or investigations pending or,
to the knowledge of the Company, threatened against or affecting
the Company of any Subsidiary in any court or before any
Governmental Authority or arbitration board or tribunal that, in
the aggregate for all such proceedings, actions and
investigations, could reasonably be expected to have a Material
Adverse Effect.
(b) Neither the Company nor any Subsidiary is in default with
respect to any judgment, order, writ, injunction or decree of
any court, Governmental Authority, arbitration board or tribunal
that, in the aggregate for all such defaults, could reasonably
be expected to have a Material Adverse Effect.
2.7 Full Disclosure.
The financial statements referred to in Section 2.2 hereof do not, nor
does this Agreement, the Placement Memorandum or any written statement
furnished by or on behalf of the Company to you in connection with the
negotiation or the closing of the sale of the Notes contain any untrue
statement of a material fact or omit a material fact necessary to make the
statements contained therein and herein not misleading. There is no fact that
the Company has not disclosed to you in writing that has had or, so far as the
Company can now reasonably foresee, could reasonably be expected to have, a
Material Adverse Effect.
2.8 Corporate Organization and Authority.
Each of the Company and the Material Subsidiaries
(a) is a corporation duly incorporated, validly existing and in good
standing under the laws of its jurisdiction of incorporation,
(b) has all legal and corporate power and authority to own and
operate its Properties and to carry on its business as now
conducted and as presently proposed to be conducted,
(c) has all licenses, certificates, permits, franchises and other
governmental authorizations necessary to own and operate its
Properties and to carry on its business as now conducted and as
presently proposed to be conducted, except where the failure to
have such licenses, certificates and permits, franchises and
other governmental authorizations, in the aggregate for all such
failures, could not reasonably be expected to have a Material
Adverse Effect, and
(d) has duly qualified or has been duly licensed, and is authorized
to do business and is in good standing, as a foreign
corporation, in each state in the United States of America and
in each other jurisdiction where the failure to be so qualified
or licensed and authorized and in good standing, in the
aggregate for all such failures, could reasonably be expected to
have a Material Adverse Effect.
2.9 Charter Instruments, Other Agreements.
Neither the Company nor any Subsidiary is in violation in any respect of
any term of any charter instrument or bylaw. Neither the Company nor any
Subsidiary is in violation in any respect of any term in any agreement or other
instrument to which it is a party or by which it or any of its Property may be
bound except for such violations that, in the aggregate for all such failures,
could not reasonably be expected to have a Material Adverse Effect.
2.10 Restrictions on Company and Subsidiaries.
Neither the Company nor any Subsidiary:
(a) is a party to any contract or agreement, or subject to any
charter or other corporate restriction that, in the aggregate
for all such contracts, agreements, charters and corporate
restrictions, could reasonably be expected to have a Material
Adverse Effect;
(b) is a party to any contract or agreement that restricts the right
or ability of such corporation to incur Indebtedness, other than
this Agreement and the agreements listed in Part 2.10 of ▇▇▇▇▇ ▇
▇▇▇▇▇▇, ▇▇▇▇ of which restricts the issuance and sale of the
Notes or the performance of the Company hereunder or under the
Notes, and true, correct and complete copies of each of which
have been provided to you; and
(c) has agreed or consented to cause or permit in the future (upon
the happening of a contingency or otherwise) any of its
Property, whether now owned or hereafter acquired, to be subject
to a Lien not permitted by Section 6.5 hereof.
2.11 Compliance with Law.
Neither the Company nor any Subsidiary is in violation of any law,
ordinance, governmental rule or regulation to which it is subject, which
violations, in the aggregate, could reasonably be expected to have a Material
Adverse Effect.
2.12 ERISA.
(a) Prohibited Transactions. Neither the execution of this
Agreement nor the purchase of the Notes by you will constitute a
"prohibited transaction" (as such term is defined in section 406
of ERISA or section 4975 of the IRC). The representation by the
Company in the preceding sentence is made in reliance upon and
subject to the accuracy of the representations in Section 1.3(b)
hereof as to the source of funds used by you.
(b) Pension Plans.
(i) Compliance with ERISA. The Company and the ERISA
Affiliates are in compliance with ERISA, except for such
failures to comply that, in the aggregate for all such
failures, could not reasonably be expected to have a
Material Adverse Effect.
(ii) Funding Status. No accumulated funding deficiency (as
defined in section 302 of ERISA and section 412 of the
IRC), whether or not waived, exists with respect to any
Pension Plan.
(iii) PBGC. No liability to the PBGC has been or is
expected to be incurred by the Company or any ERISA
Affiliate with respect to any Pension Plan that,
individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect. No
circumstance exists that constitutes grounds under
section 4042 of ERISA entitling the PBGC to institute
proceedings to terminate, or appoint a trustee to
administer, any Pension Plan or trust created
thereunder, nor has the PBGC instituted any such
proceeding.
(iv) Multiemployer Plans. Neither the Company nor any ERISA
Affiliate has incurred or presently expects to incur any
withdrawal liability under Title IV of ERISA with respect
to any Multiemployer Plan. There have been no "reportable
events" (as such term is defined in section 4043 of ERISA)
with respect to any Multiemployer Plan that could result in
the termination of such Multiemployer Plan and give rise to
a liability of the Company or any ERISA Affiliate in
respect thereof.
(v) Foreign Pension Plan. Except as disclosed on Part
2.12(b)(v) of Annex 3, the present value of all benefits
vested under each Foreign Pension Plan, determined as of
the most recent valuation date in respect thereof, does not
exceed the value of the assets of such Foreign Pension
Plan, and all required payments in respect of the funding
of such Foreign Pension Plan have been made.
2.13 Environmental Compliance.
(a) Compliance. Each of the Company and the Subsidiaries is in
compliance with all Environmental Protection Laws in effect in
each jurisdiction where it is currently doing business and in
which the failure so to comply, in the aggregate for all such
failures, could reasonably be expected to have a Material
Adverse Effect.
(b) Liability. Neither the Company nor any Subsidiary is subject to
any liability under any Environmental Protection Laws that, in
the aggregate for all such liabilities, could reasonably be
expected to have a Material Adverse Effect.
(c) Notices. Neither the Company nor any Subsidiary has received
any
(i) notice from any Governmental Authority by which any of its
currently or previously owned or leased Properties has been
identified in any manner by any Governmental Authority as a
hazardous substance disposal or removal site, "Super Fund"
clean-up site, or candidate for removal or closure pursuant
to any Environmental Protection Law,
(ii) notice of any Lien arising under or in connection with any
Environmental Protection Law that has attached to any
revenues of, or to, any of its currently or previously
owned or leased Properties, or
(iii) any communication, written or oral, from any Governmental
Authority concerning action or omission by the Company or
such Subsidiary in connection with its currently or
previously owned or leased Properties resulting in the
release of any hazardous substance resulting in any
violation of any Environmental Protection Law, in each
case where the effect of which, in the aggregate for all
such notices and communications, could reasonably be
expected to have a Material Adverse Effect.
2.14 Sale of Notes is Legal and Authorized; Obligations are Enforceable.
(a) Sale of Notes is Legal and Authorized. Each of the issuance,
sale and delivery of the Notes by the Company, the execution and
delivery hereof by the Company and compliance by the Company
with all of the provisions hereof and of the Notes:
(i) is within the corporate powers of the Company; and
(ii) is legal and does not conflict with, result in any breach
of any of the provisions of, constitute a default under, or
result in the creation of any Lien upon any Property of the
Company or any Subsidiary under the provisions of, any
agreement, charter instrument, bylaw or other instrument to
which it is a party of by which it or any of its Property
may be bound.
(b) Obligations are Enforceable. Each of this Agreement and the
Notes has been duly authorized by all necessary action on the
part of the Company, has been executed and delivered by duly
authorized officers of the Company, and constitutes a legal,
valid and binding obligation of the Company, enforceable in
accordance with its terms, except that the enforceability hereof
and of the Notes may be:
(i) limited by applicable bankruptcy, reorganization,
arrangement, insolvency, moratorium, or other similar laws
affecting the enforceability of creditors' rights
generally; and
(ii) subject to the availability of equitable remedies.
2.15 Governmental Consent to Sale of Notes.
Neither the nature of the Company or any Subsidiary, or of any of their
respective businesses or Properties, nor any relationship between the Company
or any Subsidiary and any other Person, nor any circumstance in connection with
the offer, issuance, sale or delivery of the Notes and the execution and
delivery of this Agreement, is such as to require a consent, approval or
authorization of, or filing, registration or qualification with, any
Governmental Authority on the part of the Company as a condition to the
execution and delivery of this Agreement of the offer, issuance, sale or
delivery of the Notes. 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 Interstate Commerce Act as
amended or the Federal
Power Act as amended.
2.16 No Defaults under Notes.
No event has occurred and no condition exists that, upon the execution and
delivery of this Agreement and the issuance and sale of the Note would
constitute a Default or an Event of Default.
2.17 Private Offering of Notes.
Neither the Company nor ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co. (the only Person authorized or
employed by the Company as agent, broker, dealer or otherwise in connection
with the offering or sale of the Notes or any similar Security of the Company,
other than employees of the Company) has offered any of the Notes or any
similar Security of the Company for sale to, or solicited offers to buy any
thereof from, or otherwise approached or negotiated with respect thereto with,
any prospective purchaser, other than you and one hundred ten (110) other
institutional investors, each of whom was offered all or a portion of the Notes
at private sale for investment.
2.18 Use of Proceeds of Notes.
(a) Use of Proceeds. The Company shall use the proceeds of the sale
of the Notes as set forth on Part 2.18 of Annex 3 hereto.
(b) Margin Securities. None of the transactions contemplated herein
and in the Notes (including, without limitation, the use of the
proceeds from the sale of the Notes) violates, will violate or
will result in a violation of section 7 of the Exchange Act, or
any regulations issued pursuant thereto, including, without
limitation, Regulation G, Regulation T and Regulation X of the
Board of Governors of the Federal Reserve System, 12 C.F.R.,
Chapter II. Neither the Company nor any Subsidiary, with the
proceeds of the sale of the Notes, intends to carry or purchase,
or refinance borrowings that were used to carry or purchase,
any "margin stock" (as defined by said Regulation G), including
margin stock originally issued by the Company or any Subsidiary.
(c) Absence of Foreign or Enemy Status. Neither the sale of the
Notes nor the use of proceeds from the sale thereof will result
in a violation of any of the foreign assets control regulations
of the United States Treasury Department (31 CFR, Subtitle B,
Chapter V, as amended), or any ruling issued thereunder or any
enabling legislation or Presidential Executive Order in
connection therewith.
3. CLOSING CONDITIONS
Your obligation to purchase and pay for the Notes to be delivered to you
at the Closing is subject to the conditions precedent set forth in this Section
3. The failure of the Company to satisfy such conditions shall not operate to
waive any of your rights against the Company.
3.1 Opinions of Counsel.
You shall have received from
(a) ▇▇▇▇▇▇▇▇ & Worcester, counsel for the Company, and
(b) ▇▇▇▇ & ▇▇▇▇▇▇, your special counsel,
closing opinions, each dated as of the Closing Date, substantially in the
respective forms set forth in Exhibit B1 and Exhibit B2 hereto and as to such
other matters as you may reasonably request. This Section 3.1 shall constitute
direction by the Company to such counsel named in the foregoing clause (a) to
deliver such closing opinion to you.
3.2 Warranties and Representations True.
The warranties and representations contained in Section 2 hereof shall be
true on the Closing Date with the same effect as though made on and as of that
date.
3.3 Officers' Certificates.
You shall have received
(a) a certificate dated the Closing Date and signed by two Senior
Officers, substantially in the form of Exhibit C hereto, and
(b) a certificate dated the Closing Date and signed by the Secretary
or an Assistant Secretary of the Company, substantially in the
form of Exhibit D hereto.
3.4 Legality.
The Notes shall on the Closing Date qualify as a legal investment for you
under applicable insurance law (without regard to any "basket" or "leeway"
provisions), and you shall have received such evidence as you may reasonably
request to establish compliance with this condition.
3.5 Private Placement Number.
The Company shall have obtained or caused to be obtained a private
placement number for the Notes from the CUSIP Service Bureau of Standard &
Poor's Corporation and you shall have been informed of such private placement
number.
3.6 Expenses.
All fees and disbursements required to be paid pursuant to Section 1.4
hereof shall have been paid in full.
3.7 Other Purchasers.
None of the Other Purchasers shall have failed to execute and deliver a
Note Purchase Agreement or to accept delivery of or make payment for the Notes
to be purchased by it on the Closing Date.
3.8 Proceedings Satisfactory.
All proceedings taken in connection with the issuance and sale of the
Notes and all documents and papers relating thereto shall be satisfactory to
you and your special counsel. You and your special counsel shall have received
copies of such documents and papers as you or they may reasonably request in
connection therewith or in connection with your special counsel's closing
opinion, all in
form and substance satisfactory to you and your special counsel.
4. PRINCIPAL PAYMENTS
4.1 Required Prepayments.
The Company shall pay, and there shall become due and payable, Twenty-Five
Million Dollars ($25,000,000) in principal amount of the Notes on June 1 in
each year beginning on June 1, 2003, and ending on June 1, 2007, inclusive
(each, a "Required Principal Payment"). Each such Required Principal Payment
shall be at one hundred percent (100%) of the principal amount prepaid,
together with interest accrued thereon to the date of prepayment. The entire
principal of the Notes remaining outstanding on June 1, 2007, together with
interest accrued thereon, shall become due and payable on June 1, 2007.
4.2 Optional Prepayments.
(a) Optional Prepayments. The Company may prepay the principal
amount of the Notes in whole or in part, at any time, in
multiples of Ten Million Dollars ($10,000,000) (or, if the
aggregate outstanding principal amount of the Notes is less than
Ten Million Dollars ($10,000,000) at such time, then such
principal amount), together with
(i) an amount equal to the Make-Whole Amount due at such time
in respect of the principal amount of the Notes being so
prepaid, and
(ii) interest on such principal amount then being prepaid
accrued to the prepayment date.
(b) Notice of Optional Prepayment. The Company will give notice of
any optional prepayment of the Notes to each holder of Notes not
less than thirty (30) days or more than sixty (60) days before
the date fixed for prepayment, specifying:
(i) such prepayment date;
(ii) the Section hereof under which the prepayment is to be
made;
(iii) the principal amount of each Note to be prepaid on such
date;
(iv) the interest to be paid on each such Note, accrued to the
date fixed for payment;
(v) the amounts and dates of the remaining Required Principal
Payments, after giving effect to such prepayment; and
(vi) the calculation (with details) of an estimated Make-Whole
Amount, if any, (calculated as if the date of such notice
was the date of prepayment) due in connection with such
prepayment.
Notice of prepayment having been so given, the aggregate principal amount
of the Notes to be prepaid specified in such notice, together with the
Make-Whole Amount as of the specified prepayment date with respect
thereto, if any, and accrued interest thereon shall become due and payable
on the specified prepayment date. Two (2) Business Days prior to the
making of such prepayment, the Company shall deliver to each holder of
Notes by facsimile transmission a certificate of a Senior Financial
Officer specifying the details of the calculation of such Make-Whole
Amount as of the specified prepayment date.
(c) Effect of Partial Prepayments on Required Prepayments. Each
partial prepayment of the principal of the Notes made pursuant
to this Section 4.2 shall be applied against and reduce each of
the then remaining Required Principal Payments by a percentage
equal to the aggregate principal amount of the Notes so prepaid
divided by the aggregate principal amount of the Notes
outstanding immediately prior to such prepayment.
4.3 Prepayments Among Noteholders.
If at the time any prepayment of the principal of the Notes made pursuant
to Section 4.1 or Section 4.2 hereof is due there is more than one Note
outstanding, the aggregate principal amount of each required or optional
partial prepayment of the Notes shall be allocated among the holders of the
Notes at the time outstanding in proportion to the respective unpaid principal
amounts of the Notes then outstanding.
4.4 Special Prepayments.
(a) Prepayments of the Notes. The Company shall, in connection with
any Transfer permitted to occur solely pursuant to Section
6.8(f) hereof, make one offer to prepay the Notes in connection
with each such Transfer, provided that each of the following
conditions shall be satisfied in respect thereof:
(i) The aggregate amount of the offer (the "Offered Prepayment
Amount") shall be greater than or equal to the Net Transfer
Proceeds of such Transfer.
(ii) The Company shall irrevocably offer such Offered Prepayment
Amount in a writing delivered to each holder of Notes not
more than thirty (30) days after the date of the
substantial completion of such Transfer (the "Transfer
Date") for the prepayment of the Notes (together with any
Make-Whole Amount and interest accrued and unpaid thereon).
Such written offer will refer to this Section 4.4, will
briefly describe such Transfer, will specify the date fixed
for the making of such prepayment (which shall not be less
than ninety (90) days after, nor more than one hundred
twenty (120) days after, such Transfer Date), and the
amount of such Offered Prepayment Amount, in the aggregate
and in respect of each holder of Notes, and will provide
detailed calculation supporting the foregoing. The Company
shall deliver such written notice a second time ten days
after the original sending of such notice to each holder of
a Note which has not accepted or rejected such Offered
Prepayment within ten (10) days of the original sending of
such notice, and confirm receipt by telephone call to the
recipient. Each holder of a Note which does not reject
such offer in writing within thirty (30) days of the
original sending of such notice shall be deemed to have
accepted such offer.
(iii) The Company shall pay to each holder of a Note which shall
have accepted such offer such holder's ratable share of
the Offered Prepayment Amount (such ratable amount being
determined on the basis of the aggregate principal amount
of all Notes outstanding the holders of which shall have
accepted such offer), and such ratable share shall be
applied to the principal of each such Note. The Company
shall, in addition, pay all interest on each such Note
accrued to the date of payment, and the Make-Whole Amount,
if any, due in respect of such payment.
(iv) The payment of such Offered Prepayment Amount to the
holders of Notes which shall have accepted such offer shall
be made on the date specified in the notice required by
Section 4.4(a)(ii) hereof (or if such day shall not be a
Business Day, on the Business Day most nearly preceding
such date). The Company will comply with the requirements
of Section 4.2(b) hereof with respect to such prepayment.
(b) Effect of Special Prepayments on Required Prepayments. Each
prepayment of the principal of the Notes made pursuant to this
Section 4.4 shall be applied against and reduce each of the then
remaining Required Principal Payments by a percentage equal to
the aggregate principal amount of the Notes so prepaid divided
by the aggregate principal amount of the Notes outstanding
immediately prior to such prepayment.
4.5 Notation of Notes on Prepayment.
Upon any partial prepayment of a Note, the holder of such Note may (but
shall not be required to), at its option,
(a) surrender such Note to the Company pursuant to Section 5.2
hereof in exchange for a new Note in a principal amount equal to
the principal amount remaining unpaid on the surrendered Note,
(b) make such Note available to the Company for notation thereon of
the portion of the principal so prepaid, or
(c) ▇▇▇▇ such Note with a notation thereon of the portion of the
principal so prepaid.
In case the entire principal amount of any Note is prepaid, such Note shall be
surrendered to the Company for cancellation and shall not be reissued, and no
Note shall be issued in lieu of the prepaid principal amount of any Note.
4.6 No Other Prepayments; Acquisition of Notes.
Except for prepayments made in accordance with this Section 4, the Company
may not make any prepayment of principal in respect of the Notes. The Company
will not, nor will it permit any Subsidiary or any Affiliate to, directly or
indirectly, acquire or make any offer to acquire any Notes unless the Company
or such Subsidiary or Affiliate shall have offered to acquire Notes, pro rata,
from all holders of the Notes upon the same terms. In case the Company
acquires any Notes, such Notes will thereafter be cancelled and no Notes will
be issued in substitution therefor. Each partial repurchase of Notes by the
Company shall be applied against and reduce each of the then remaining Required
Principal Payments by a percentage equal to the aggregate principal amount of
the Notes so prepaid divided by the aggregate principal amount of the Notes
outstanding immediately prior to such prepayment.
5. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES
5.1 Registration of Notes.
The Company will keep at its office, maintained pursuant to Section 6.3
hereof, a register for the registration and transfer 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. 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.
5.2 Exchange of Notes.
(a) Exchange of Notes. Upon surrender of any Note at the office of
the Company maintained pursuant to Section 6.3 hereof duly
endorsed or 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, the Company will execute
and deliver, at the Company's expense (except as provided
below), new Notes 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 A hereto. 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 Two Hundred Thousand Dollars
($200,000) provided that a holder of Notes may transfer its
entire holding of Notes regardless of the principal amount of
such holder's Notes.
(b) Costs. The Company will pay the cost of delivering to or from
such holder's home office or custodian bank from or to the
Company, insured to the reasonable satisfaction of such holder,
the surrendered Note and any Note issued in substitution or
replacement for the surrendered Note.
(c) Actions of Noteholder. Each holder of Notes agrees that in the
event it shall sell or transfer any Note without surrendering
such Note to the Company as set forth in Section 5.2(s) hereof,
it shall
(i) prior to the delivery of such Note make a notation thereon
of all principal, if any, prepaid on such Note and shall
also indicate thereon the date to which interest shall have
been paid on such Note, and
(ii) promptly notify the Company of the name and address of the
transferee of any such Note so transferred and the
effective date of such transfer.
(d) Compliance with Securities Laws. Each holder of Notes agrees
that each sale or transfer of Notes made by it shall be made in
compliance with all applicable securities laws.
5.3 Replacement of Notes.
Upon receipt by the Company of evidence reasonably satisfactory to it of
the ownership of and the loss, theft, destruction or mutilation of any Note
(which evidence shall be, in the case of an institutional investor, notice from
such institutional investor of such ownership (or of ownership by such
institutional investor's nominee) and such loss, theft, destruction or
mutilation), and
(a) in the case of loss, theft or destruction, of indemnity
reasonably satisfactory to the Company (provided that if the
holder of such Note is an institutional investor or a
nominee of an institutional investor, such holder's own
unsecured agreement of indemnity shall be deemed to be
satisfactory), or
(b) in the case of mutilation, upon surrender and cancellation
thereof, the Company at its own expense will 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.
5.4 Issuance Taxes.
The Company will pay all taxes (if any) due in connection with and as the
result of the initial issuance and sale of the Notes and in connection with any
modification of this Agreement or the Notes and shall save each holder of Notes
harmless without limitation as to time against any and all liabilities with
respect to all such taxes.
6. COVENANTS
The Company covenants that on and after the Closing Date and so long as
any of the Notes shall be outstanding:
6.1 Payment of Taxes and Claims.
The Company will, and will cause each Subsidiary to, pay before they
become delinquent,
(a) all taxes, assessments and governmental charges or levies
imposed upon it or its Property, and
(b) all claims or demands of materialmen, mechanics, carriers,
warehousemen, vendors, landlords and other like Persons that, if
unpaid, might result in the creation of a Lien upon its
Property, provided, that items of the foregoing description need
not be paid so long as
(i) such items are being actively contested in good faith and by
appropriate proceedings,
(ii) adequate book reserves have been established and maintained with
respect thereto, and
(iii) such items, in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.
6.2 Maintenance of Properties; Corporate Existence; etc.
The Company will, and will cause each Material Subsidiary to:
(a) Property -- maintain its Property in a condition sufficient to
permit its ordinary operation, ordinary wear and tear and
obsolescence excepted, and make all necessary renewals,
replacements, additions, betterments and improvements thereto;
(b) Insurance -- maintain, with financially sound and reputable
insurers, insurance with respect to its Property and business
against such casualties and contingencies, of such types and in
such amounts as is customary in the case of corporations of
established reputations engaged in the same or a similar
business and similarly situated;
(c) Financial Records -- keep accurate and complete books of records
and accounts that permit the provision of accurate and complete
financial statements in accordance with GAAP;
(d) Corporate Existence and Rights -- do or cause to be done all
things necessary to preserve and keep in full force and effect
its corporate existence, rights (charter and statutory) and
franchises, except where the failure to do so, in the aggregate,
could not reasonably be expected to have a Material Adverse
Effect; and
(e) Compliance with Law -- not be in violation of any law, ordinance
or governmental rule or regulation to which it is subject
(including, without limitation, any Environmental Protection
Law) and not fail to obtain any license, certificate, permit,
franchise or other governmental authorization necessary to the
ownership of its Properties or to the conduct of its business if
such violations or failures to obtain, in the aggregate,
could reasonably be expected to have a Material Adverse Effect
or, in the aggregate, a material adverse effect on the ability
of the Company or any Subsidiary to conduct in the future the
business it conducts at the time of such violation or failure to
obtain.
6.3 Payment of Notes and Maintenance of Office.
The Company will punctually pay, or cause to be paid, the principal of and
interest (and Make-Whole Amount, if any) on, the Notes, as and when the same
shall become due according to the terms hereof and of the Notes, and will
maintain an office at the address of the Company set forth in Section 10.1
hereof where notices, presentations and demands in respect hereof or the Notes
may be made upon it. Such office will be maintained at such address until such
time as the Company shall notify the holders of the Notes of any change of
location of such office, which will in any event be located within the United
States of America.
6.4 Merger; Acquisition.
(a) Merger and Consolidation. The Company will not merge into or
consolidate with, or sell, lease, transfer or otherwise dispose
of all or substantially all of its Property to, any other Person
or permit any other Person to consolidate with or merge into it;
provided that the foregoing restriction does not apply to the
merger or consolidation of the Company with, or the sale, lease,
transfer or other disposition by the Company of all or
substantially all of its Property to, another corporation, if:
(i) the corporation that results from such merger or
consolidation or that purchases, leases, or acquires all or
substantially all of such Property (the "Successor
Corporation") is organized under the laws of the United
States of America or any jurisdiction thereof;
(ii) the due and punctual payment of the principal of and Make-
Whole Amount, if any, and interest on all of the Notes,
according to their tenor, and the due and punctual
performance and observance of all the covenants in the
Notes and this Agreement to be performed or observed by the
Company, are expressly assumed by the Successor Corporation
pursuant to such agreements and instruments with respect to
such assumption as shall be approved by the Required
Holders, and the Company causes to be delivered to each
holder of Notes an opinion of independent counsel
satisfactory to the Required Holders to the effect that
such agreements and instruments are enforceable in
accordance with their terms and the terms hereof;
(iii) the Notes rank at least pari passu with all other
Indebtedness of the Successor Corporation (provided that
this Section 6.4(a)(iii) shall not prohibit the
existence of Indebtedness secured by Liens that do not
violate Section 6.5 hereof); and
(iv) immediately prior to, and immediately after the
consummation of the transaction, and after giving effect
thereto, no Default or Event of Default would exist under
any provision hereof.
(b) Acquisition of Stock. The Company will not acquire any stock of
any corporation if upon completion of such acquisition such
corporation would be a Subsidiary, or acquire all of the
Property of, or such of the Property as would permit the
transferee to continue any one or more integral business
operations of, any Person unless, immediately after the
consummation of such acquisition, and after giving effect
thereto, no Default or Event of Default exists or would exist
under any provision hereof.
6.5 Liens.
(a) Negative Pledge. The Company will not, and will not permit any
Subsidiary to, cause or permit to exist, or agree or consent to
cause or permit to exist in the future upon the happening of a
contingency or otherwise), any of their Property, whether now
owned or hereafter acquired, to be subject to a Lien except:
(i) Taxes, etc. -- Liens securing taxes, assessments or
governmental charges or levies or the claims or demands of
materialmen, mechanics, carriers, warehousemen, landlords
and other like Persons, provided that the payment thereof
is not required by Section 6.1 hereof;
(ii) Court Proceedings -- Liens arising from judicial
attachments and judgments, securing appeal bonds or
supersedeas bonds, or arising in connection with pending
court proceedings (including, without limitation, surety
bonds and letters of credit or any other instrument serving
a similar purpose), provided that the execution or other
enforcement of such Liens is effectively stayed and the
claims secured thereby are being actively contested in good
faith and by appropriate proceedings, and provided further
that the aggregate amount so secured (minus the amount of
insurance that is available to pay such amounts and over
which no dispute regarding coverage has occurred or is
threatened) will not at any time exceed six percent (6%) of
Consolidated Shareholders' Equity;
(iii) Ordinary Course Business Liens -- Liens incurred or
deposits made in the ordinary course of business
(A) in connection with workers' compensation, unemployment
insurance, social security and other like laws, and
(B) to secure the performance of letters of credit, bids,
tenders, sales contracts, leases, statutory
obligations, surety and performance bonds (of a type
other than set forth in Section 6.5(a)(ii) hereof) and
other similar obligations not incurred in connection
with the borrowing of money, the obtaining of advances
or the payment of the deferred purchase price of
Property;
(iv) Real Property Liens -- Liens in the nature of reservations,
exceptions, encroachments, easements, rights-of-way,
covenants, conditions, restrictions, leases and other
similar title exceptions or encumbrances affecting real
property, provided that such exceptions and encumbrances do
not in the aggregate materially detract from the value of
said Properties or materially interfere with the use of
such Property in the ordinary conduct of the business of
the Company and the Subsidiaries;
(v) Closing Date Liens --
(A) Liens in existence on the Closing Date and described
on Part 6.5 of Annex 3 hereto, and
(B) Liens securing renewals, extensions (as to time) and
refinancings of Indebtedness secured by the Liens
described on Part 6.5 Annex 3 hereto, provided that
the amount of Indebtedness secured by each such Lien
is not increased in excess of the amount of
Indebtedness outstanding on the date of such renewal,
extension or refinancing, and none of such Liens is
extended to include any additional Property of the
Company or any Subsidiary;
(vi) Intergroup Liens -- Liens on Property of a Subsidiary,
provided that such Liens secure only obligations owing to
the Company or a Wholly-Owned Subsidiary;
(vii) Purchase Money Liens -- Purchase Money Liens, provided
that, after giving effect thereto and to any concurrent
transactions, no Default or Event of Default would exist
under any provision hereof; and
(viii) Basket Liens -- Liens ("Basket Liens") not otherwise
permitted by clause (i) through clause (vii), inclusive,
of this Section 6.5(a) provided that the Company will not
at any time permit the sum, without duplication, of
(A) the aggregate amount of Indebtedness ("Basket Secured
Debt") secured by Basket Liens, plus
(B) Combined Subsidiary Funded Debt minus the aggregate
amount of Closing Date Subsidiary Debt, determined in
each case at such time, to exceed twenty percent (20%)
of Consolidated Tangible Net Worth determined as of
the end of the then most recently ended fiscal
quarter of the Company. NOthing in this Section 6.5
shall be construed to permit the incurrence or
existence of any Indebtedness not otherwise permitted
by this Agreement.
(b) Equal and Ratable Lien; Equitable Lien. In case any Property
shall be subjected to a Lien in violation of this Section 6.5,
the Company will forthwith make or cause to be make, to the
fullest extent permitted by applicable law, provision whereby
the Notes will be secured equally and ratably with all other
obligations secured thereby pursuant to such agreements and
instruments as shall be approved by the Required Holders, and
the Company will cause to be delivered to each holder of a Note
an opinion of independent counsel satisfactory to the Required
Holders to the effect that such agreements and instruments are
enforceable in accordance with their terms, and in any such case
the Notes shall have the benefit, to the full extent that, and
with such priority as, the holders of Notes may be entitled
under applicable law, of an equitable Lien on such Property
(and any proceeds thereof) securing the Notes. Such violation
of this Section 6.5 will constitute an Event of Default
hereunder, whether or not any such provision is made pursuant to
this Section 6.5(b).
(c) Financing Statements. The Company will not, and will not permit
any Subsidiary to, sign or file a financing statement under the
Uniform Commercial Code of any jurisdiction that names the
Company or such Subsidiary as debtor, or sign any security
agreement authorizing any secured party thereunder to file any
such financing statement, except, in any such case, a financing
statement filed or to be filed to perfect or protect a
security interest that the Company or such Subsidiary is
entitled to create, assume or incur, or permit to exist, under
the provisions of Section 6.5(a) or to evidence for
informational purposes a lessor's interest in Property leased to
the Company or any such Subsidiary.
6.6 Consolidated Tangible Net Worth.
The Company will not at any time permit Consolidated Tangible Net Worth to
be less than Two Hundred Fifty Million Dollars ($250,000,000).
6.7 Funded Debt.
The Company will not at any time permit Consolidated Funded Debt to be
greater than ninety percent (90%) of Consolidated Shareholders' Equity,
determined in each case at such time.
6.8 Transfer of Property.
The Company will not, and will not permit any Subsidiary, to sell, lease
as lessor, transfer or otherwise dispose of Property (including, without
limitation, Subsidiary Stock) (each such transaction a "Transfer") provided
that the foregoing restriction does not apply to a Transfer of Property if:
(a) Ordinary Course Transfers -- such Property constitutes inventory
held for sale, or obsolete equipment, fixtures and supplies, and
in each case is Transferred in the ordinary course of business
(an "Ordinary Course Transfer");
(b) Basket Transfers -- such Property is Transferred (the date of
the Transfer of such Property referred to as the "Property
Disposition Date") to a Person other than an Affiliate, such
Transfer is not an Ordinary Course Transfer, an Intergroup
Transfer, a Merger Transfer, a Reinvested Transfer, a Prepayment
Transfer or a Noteholder Approved Transfer (such transfers
collectively referred to as "Excluded Transfers"), and all of
the following conditions shall have been satisfied with respect
thereto,
(i) the sum of
(A) the Disposition Value of such Property, plus
(B) the Disposition Value of all other Property
Transferred by the Company and the Subsidiaries during
the three hundred sixty-five (365) day period ending
on and including such Property Disposition Date
(excluding therefrom Excluded Transfers occurring
during such period), does not exceed twenty percent
(20%) of Consolidated Total Assets determined as of
the end of the then most recently ended fiscal quarter
of the Company,
(ii) the sum of
(A) the Disposition Value of such Property, plus
(B) the Disposition Value of all other Property
Transferred by the Company and the Subsidiaries during
the period beginning on the Closing Date and ending on
such Property Disposition Date, inclusive, (excluding
therefrom Excluded Transfers occurring during such
period), does not exceed thirty percent (30%) of
Consolidated Total Assets determined as of the end of
the then most recently ended fiscal quarter of the
Company,
(iii) in the good faith opinion of the board of directors of the
Company, the Transfer is for Fair Market Value and is in
the best interests of the Company, and
(iv) immediately before and immediately after the consummation
of the transaction, and after giving effect thereto, no
Default or Event of Default exists or would exist under any
provision hereof;
(c) Intergroup Transfers -- such Transfer is from a Subsidiary to
the Company or a Wholly-Owned Subsidiary (an "Intergroup
Transfer");
(d) Merger-Related Transfers -- such Transfer meets the requirements
of 6.4 hereof (a "Merger Transfer");
(e) Reinvested Transfers -- such Transfer shall satisfy each of the
following conditions (upon the satisfaction of all of the
conditions set forth in this Section 6.8(e) such Transfer
shall be a "Reinvested Transfer" and such Transfer shall be
deemed to have occurred on the date of the satisfaction of all
of such conditions),
(i) the Company will deliver a writing to each holder of Notes
contemporaneously with the consummation of the Transfer in
which the Company will
(A) identify such Property,
(B) state the nature and terms of the transaction and the
nature and use of the proceeds of the transaction, and
(C) state that, within three hundred and sixty-five (365)
days following the consummation of such Transfer, the
entire proceeds of such Transfer, net of reasonable
and ordinary transaction costs and expenses incurred
in connection with such Transfer, shall be applied to
the acquisition by the Company or any Subsidiary of
tangible property (or a group of related items of
Property the substantial portion of which is
tangible) properly classifiable under GAAP as long-
term to be used in the ordinary course of business of
the Company and the Subsidiaries, and
(ii) the proceeds of such Transfer shall have been applied as
described in such writing;
(f) Prepayment Transfer -- an amount equal to the Net Transfer
Proceeds of such Transfer shall have been offered, pursuant to
Section 4.4 hereof, to prepay the Notes, the Company shall have
complied with all of the requirements of Section 4.4 hereof
with respect thereto, and the amount of the Notes required to be
prepaid pursuant to Section 4.4 hereof as a result of such offer
shall have been paid in accordance therewith (upon the
satisfaction of the all of the conditions set forth in this
Section 6.8(f) such Transfer shall be a "Prepayment Transfer"
and such Transfer shall be deemed to have occurred on the date
of the satisfaction of all of such conditions); or
(g) Noteholder Approved Transfers -- such Transfer shall satisfy
each of the following conditions (upon the satisfaction of the
all of the conditions set forth in this Section 6.8(g) such
Transfer shall be a "Noteholder Approved Transfer" and such
Transfer shall be deemed to have occurred on the date of the
satisfaction of all of such conditions),
(i) the Company will deliver a writing to each holder of Notes
not more than sixty (60) days or less than thirty (30) days
prior to the consummation of such Transfer in which the
Company will
(A) identify such Property, and
(B) state the nature and terms of the transaction
(including, without limitation, a description of the
consideration payable by the purchaser) and the
nature and use of the proceeds of the transaction,
(ii) provide pro forma financial statements covering at least
the then succeeding two (2) fiscal years giving effect to
such Transfer, the use of the proceeds thereof and any
contemporaneous transactions,
(iii) immediately before and immediately after the consummation
of the transaction, and after giving effect thereto, no
Default or Event of Default exists or would exist under
any provision hereof other than under Section 6.8(b)
hereof,
(iv) in the good faith opinion of the board of directors of the
Company, the Transfer is for Fair Market Value and is in
the best interests of the Company,
(v) the Transfer will not be likely, in the reasonable judgment
of the Required Holders, to have a Material Adverse Effect
at the time of the consummation thereof or at any time
thereafter, and
(vi) the Required Holders shall have consented in writing to
such Transfer (including, without limitation, the
consideration therefor), prior to the consummation
thereof, which consent shall not be unreasonably withheld.
6.9 Subsidiary Debt.
(a) Subsidiary Debt. The Company will not permit any Subsidiary to
create, assume, incur, or otherwise become obligated with
respect to any Funded Debt, except:
(i) Funded Debt outstanding on the Closing Date and described
on Part 6.9 of Annex 3 hereto (the "Closing Date Subsidiary
Debt"); and
(ii) Funded Debt (including, without limitation, extensions,
renewals and refundings of Closing Date Subsidiary Debt),
if immediately after giving effect to such transaction,
the sum (without duplication) of
(A) the aggregate amount of Basket Secured Debt, plus
(B) Combined Subsidiary Funded Debt minus the aggregate
amount of Closing Date Subsidiary Debt, determined at
such time does not exceed twenty percent (20%) of
Consolidated Tangible Net Worth determined as of the
end of the then most recently ended fiscal quarter of
the Company.
(b) New Subsidiaries. Each Person which becomes a Subsidiary after
the Closing Date will be deemed to have incurred all
Indebtedness of such Person on the date such Person becomes a
Subsidiary.
(c) Disposition of Subsidiary Indebtedness. Each Subsidiary any of
whose outstanding Indebtedness is at any time sold, transferred
or otherwise disposed of by the Company or another
Subsidiary shall be deemed to have incurred such Indebtedness,
and all Liens securing such Indebtedness (if any), at the time
of such sale, transfer or other disposition.
6.10 ERISA.
(a) Compliance. The Company will, and will cause each ERISA
Affiliate to, at all times with respect to each Pension Plan,
make timely payment of contributions required to meet the
minimum funding standard set forth in ERISA or the IRC with
respect thereto, and to comply with all other applicable
provisions of ERISA. The Company will, and will cause each
Subsidiary to, at all times with respect to each Foreign Pension
Plan, maintained by any of them, comply with all laws of any
Governmental Authority with jurisdiction over such Foreign
Pension Plans.
(b) Prohibited Actions. The Company will not, and will not permit
any ERISA Affiliate to:
(i) engage in any "prohibited transaction" (as such term is
defined in section 406 of ERISA or section 4975 of the IRC)
or "reportable event" (as such term is defined in section
4043 of ERISA) that could result in the imposition of a
tax or penalty;
(ii) incur with respect to any Pension Plan any "accumulated
funding deficiency" (as such term is defined in section 302
of ERISA), whether or not waived;
(iii) terminate any Pension Plan in a manner that could result
in the imposition of a Lien on the Property of the Company
or any Subsidiary pursuant to section 4068 of ERISA or the
creation of any liability under section 4062 of ERISA;
(iv) fail to make any payment required by section 515 of ERISA;
or
(v) incur any withdrawal liability under Title IV of ERISA with
respect to any Multiemployer Plan or any liability
resulting from the termination of any Multiemployer Plan;
if the aggregate amount of the taxes, penalties, funding
deficiencies, interest, amounts secured by Liens, and other
liabilities in respect of any of the foregoing at any time
exceed, in the aggregate, more than three percent (3%) of
Consolidated Shareholders' Equity at such time.
6.11 Line of Business.
The Company will at all time cause,
(a) the amount of revenues of the Company and the Subsidiaries
derived from Permitted Lines of Business to be at least sixty-
six and two-thirds percent (66 %) of the amount of all
revenues of the Company and the Subsidiaries, determined in each
case for the then most recently ended period of twelve (12)
fiscal months on a consolidated basis, or
(b) the net book value of assets of the Company and the Subsidiaries
used in Permitted Lines of Business to be at least sixty-six and
two-thirds percent (66 %) of the amount of the net book value
of all assets of the Company and the Subsidiaries, in each
case determined as of the end of then most recently ended
calendar month on a consolidated basis and.
6.12 Transactions with Affiliates.
The Company will not, and will not permit any Subsidiary to, enter into
any transaction, including, without limitation, the purchase, sale or exchange
of Property or the rendering of any service, with any Affiliate, except in the
ordinary course of 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 obtained in a
comparable arm's-length transaction with a Person not an Affiliate.
6.13 Guaranties.
Neither the Company nor any Subsidiary will become liable for, or permit
any of its Property to become subject to, any Guaranty, unless:
(a) the maximum dollar amount of the obligation being guaranteed is
readily ascertainable by the terms of such obligation, or the
agreement or instrument evidencing such Guaranty specifically
limits the dollar amount of the maximum exposure of the
guarantor thereunder; and
(b) after giving effect thereto and to any concurrent transactions,
no Default or Event of Default exists or would exist under any
provision hereof.
6.14 Private Offering.
The Company will not, and will not permit any Person acting on its behalf
to, offer the Notes or any part thereof or any similar Securities for issue or
sale to, or solicit any offer to acquire any of the same from, any Person so
as to bring the issuance and sale of the Notes within the provisions of
section 5 of the Securities Act.
7. INFORMATION AS TO COMPANY
7.1 Financial and Business Information.
The Company shall deliver to each holder of Notes:
(a) Quarterly Statements -- as soon as practicable 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), and in any event within sixty (60) days thereafter,
duplicate copies of,
(i) a consolidated balance sheet of the Company and its
consolidated 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 consolidated
subsidiaries for such quarter and (in the case of the
second and third quarters) for the portion of the fiscal
year ending with such quarter, setting forth in each case,
in comparative form, the figures for the corresponding
periods in the previous fiscal year, all in reasonable
detail, prepared in accordance with GAAP applicable to
quarterly financial statements generally, and certified as
complete and correct, subject to changes resulting from
year-end adjustments, by a Senior Financial Officer, and
accompanied by the certificate required by Section 7.2
hereof; provided, that delivery of copies of the Company's
Quarterly Report on Form 10-Q filed with the Securities and
Exchange Commission within the time period specified above
shall be deemed to satisfy the requirements of this Section
7.1(a) so long as such Quarterly Report contains or is
accompanied by the information specified in this Section
7.1(a);
(b) Annual Statements -- as soon as practicable after the end of
each fiscal year of the Company, and in any event within one-
hundred (100) days thereafter, duplicate copies of,
(i) a consolidated and consolidating balance sheet of the
Company and its consolidated subsidiaries as at the end of
such year, and
(ii) consolidated and consolidating statements of income,
changes in shareholders' equity and cash flows of the
Company and the Subsidiaries, for such year, setting
forth in the case of each consolidated financial statement,
in comparative form, the figures for the previous fiscal
year, all in reasonable detail, prepared in accordance with
GAAP, and accompanied by
(A) (I) in the case of the consolidated financial statements
of the Company and its consolidated subsidiaries, an
opinion thereon of independent certified public
accountants of recognized national standing, which
opinion shall, without qualification (including,
without limitation, qualifications related to the
scope of the audit or the ability of the Company
or a subsidiary thereof to continue as a going
concern), 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, and
(II) in the case of such consolidating statements, a
statement from such independent certified public
accountants that such statements were prepared using
the same work papers as were used in the
preparation of such consolidated statements of the
Company and its consolidated subsidiaries,
(B) a certification by a Senior Financial Officer that such
consolidated and consolidating statements are complete and
correct, and
(C) the certificates required by Section 7.2 hereof,
provided, that the delivery of the Company's Annual Report
on Form 10-K for such fiscal year (together with the
Company's annual report to shareholders, if any, prepared
pursuant to Rule 14a-3 under the Exchange Act) filed with
the Securities and Exchange Commission within the time
period specified above shall be deemed to satisfy the
requirements of this Section 7.1(b) so long as such Annual
Report contains or is accompanied by the opinions and
other information otherwise specified in this Section
7.1(b);
(c) SEC and Other Reports -- promptly upon their becoming available
one copy of each financial statement, report, notice or proxy
statement sent by the Company or any Subsidiary to
stockholders generally, and of each regular or periodic report
and any registration statement, prospectus or written
communication, and each amendment thereto, in respect thereof
filed by the Company or any Subsidiary with, or received by,
such Person in connection therewith from, the National
Association of Securities Dealers, any securities exchange or
the Securities and Exchange Commission or any successor
agency;
(d) Notice of Default or Event of Default -- immediately, and in any
event within three (3) days, upon becoming aware of the
existence of any condition or event which constitutes a Default
or an 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) Notice of Claimed Default -- immediately, and in any event
within three (3) days, upon becoming aware that the holder of
any Note, or of any Indebtedness or other Security of the
Company or any Subsidiary, shall have given notice or taken any
other action with respect to a claimed Default, Event of Default
or default or event of default, a written notice specifying the
notice given or action taken by such holder and the nature
of the claimed Default, Event of Default or default or event of
default and what action the Company is taking or proposes to
take with respect thereto;
(f) ERISA --
(i) immediately upon becoming aware of the occurrence of any
"reportable event" (as such term is defined in section 4043
of ERISA) of "prohibited transaction" (as such term is
defined in section 406 of ERISA or section 4975 of the IRC)
in connection with any Pension Plan or any trust created
thereunder, a written notice specifying the nature thereof,
what action the Company is taking or proposes to take with
respect thereto, and, when known, any action taken by the
Internal Revenue Service, the Department of Labor or the
PBGC with respect thereto; and
(ii) prompt written notice of and, where applicable, a
description of
(A) any notice from the PBGC in respect of the
commencement of any proceedings pursuant to section
4042 of ERISA to terminate any Pension Plan or for the
appointment of a trustee to administer any Pension
Plan,
(B) any distress termination notice delivered to the PBGC
under section 4041 of ERISA in respect of any Pension
Plan, and any determination of the PBGC in respect
thereof,
(C) the placement of any Multiemployer Plan in
reorganization status under Title IV of ERISA,
(D) any Multiemployer Plan becoming "insolvent" (as such
term is defined in section 4245 of ERISA) under Title
IV of ERISA, and
(E) the whole or partial withdrawal of the Company or any
ERISA Affiliate from any Multiemployer Plan and the
withdrawal liability incurred in connection therewith,
provided that the Company shall not be required to
deliver any such notice at any time when the
aggregate amount of the actual or potential liability
of the Company and the Subsidiaries in respect of all
such events is at such time less than two percent (2%)
of Consolidated Shareholders' Equity determined at
such time; and
(g) Requested Information -- with reasonable promptness, such other
data and information as from time to time may be requested by
any holder of Notes, including, without limitation,
(i) a copy of each report submitted to the Company or any
Subsidiary by independent accountants in connection with
any annual, interim or special audit made by them of the
books of the Company or any Subsidiary;
(ii) copies of any statement, report or certificate furnished to
any holder of Indebtedness of the Company or any
Subsidiary; and
(iii) information requested to comply with 17 C.F.R. 230.144A,
as amended, from time to time.
7.2 Officers' Certificates.
Each set of financial statements delivered to each holder of Notes
pursuant to Section 7.1(a) or Section 7.1(b) hereof shall be accompanied by a
certificate of a Senior Financial Officer, setting forth:
(a) Covenant Compliance -- the information (including detailed
calculations) required in order to establish whether the Company
was in compliance with the requirements of Section 6.5 through
Section 6.9 hereof, inclusive, during the period covered by the
financial statement 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 the signers have reviewed
the relevant terms hereof and have made, or caused to be made,
under their supervision, a review of the transactions and
conditions of the Company and the Subsidiaries from the
beginning of the accounting period covered by the income
statements being delivered therewith 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, specifying the nature and
period of existence thereof and what action the Company shall
have taken or proposes to take with respect thereto.
7.3 Accountants' Certificates.
Each set of annual financial statements delivered pursuant to Section
7.1(b) shall be accompanied by a certificate of the accountants who certify
such financial statements, stating that they have reviewed this Agreement and
stating further, whether, in making their audit, such accountants have become
aware of any condition or event that then constitutes a Default or an
Event of Default, and, if such accountants are aware that any such condition or
event then exists, specifying the nature and period of existence thereof.
7.4 Inspection.
The Company will permit the representatives of each holder of Notes to
visit and inspect any of the 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,
employees and independent public accountants (and by this provision the
Company authorizes said accountants to discuss the finances and affairs ot the
Company and the subsidiaries) all at such reasonable times and as often as may
be reasonably requested.
8. EVENTS OF DEFAULT
8.1 Nature of Events.
An "Event of Default" shall exist if any of the following occurs and is
continuing:
(a) Principal or Make-Whole Amount Payments -- the Company shall
fail to make any payment of principal or Make-Whole Amount on
any Note on or before the date such payment is due;
(b) Interest Payments -- the Company shall fail to make any payment
of interest on any Note on or before five (5) days after the
date such payment is due;
(c) Particular Covenant Defaults -- the Company shall fail to
perform or observe any covenant contained in Section 6.6 through
Section 6.9, inclusive, Section 6.13, Section 7.1(d) or
Section 7.1(e) hereof;
(d) Liens -- the Company shall fail to perform or observe any
covenant contained in Section 6.5 hereof and such failure
continues for more than five days after such failure shall
first become known to any Senior Officer of the Company;
(e) Other Defaults -- the Company shall fail to comply with any
other provision hereof, and such failure continues for more than
thirty (30) days after such failure shall first become known to
any Senior Officer of the Company;
(f) Warranties or Representations -- any warranty, representation or
other statement by or on behalf of the Company contained herein
or in any instrument furnished in compliance with or in
reference hereto shall have been false or misleading in any
material respect when made;
(g) Default on Indebtedness or Other Security --
(i) the Company or any Subsidiary shall fail to make any
payment on any Indebtedness when due (including in the
determination of when a payment is due any applicable grace
periods); or
(ii) any one or more of the holders (or a trustee therefor) of
any Indebtedness or Security of the Company or any
Subsidiary, or a portion thereof,
(A) causes such Indebtedness or Security to become due
prior to its stated maturity or prior to its regularly
scheduled date or dates of payment; or
(B) exercises any right to require the Company or any
Subsidiary to repurchase such Indebtedness or Security
from such holder; provided that no Event of Default
shall exist at any time when the aggregate amount of
all obligations in respect of such Indebtedness and
Securities is less than Five Million Dollars
($5,000,000);
(h) Involuntary Bankruptcy Proceedings --
(i) a receiver, liquidator, custodian or trustee of the Company
or any Material Subsidiary, or of all or any substantial
part of the Property of either, shall be appointed by court
order and such order remains in effect for more than thirty
(30) days; or an order for relief shall be entered with
respect to the Company or any Material Subsidiary, or the
Company or any Material Subsidiary shall be adjudicated a
bankrupt or insolvent; or
(ii) any of the Property of the Company or any Material
Subsidiary shall be sequestered by court order and such
order remains in effect for more than thirty (30) days; or
(iii) a petition shall be filed against the Company or any
Material Subsidiary under any bankruptcy, reorganization,
arrangement, insolvency, readjustment of debt, dissolution
or liquidation law of any jurisdiction, whether now
or hereafter in effect, and shall not be dismissed within
thirty (30) days after such filing;
(i) Voluntary Petitions -- the Company or any Material Subsidiary
shall file a petition in voluntary bankruptcy or seeking relief
under any provision of any bankruptcy, reorganization,
arrangement, insolvency, readjustment of debt, dissolution or
liquidation law of any jurisdiction, whether now or hereafter in
effect, or shall consent to the filing of any petition against
it under any such law;
(j) Assignments for Benefit of Creditors, etc. -- the Company or a
Material Subsidiary shall make an assignment for the benefit of
its creditors, or admits in writing its inability, or fails, to
pay its debts generally as they become due, or shall consent to
the appointment of a receiver, liquidator or trustee of the
Company or a Material Subsidiary or of all or any part of the
Property of either; or
(k) Undischarged Final Judgments -- a final, non-appealable,
judgment or final, non-appealable, judgments for the payment of
money aggregating in excess of Fifty Thousand Dollars
($50,000) is or are outstanding against one or more of the
Company and the Subsidiaries and any one of such judgments shall
have been outstanding for more than thirty (30) days from the
date of its entry and shall not have been discharged in full
or stayed.
8.2 Default Remedies.
(a) Acceleration on Event of Default.
(i) If any Event of Default specified in Section 8.1(h),
Section 8.1(i) or Section 8.1(j) hereof shall exist, all of
the Notes at the time outstanding shall automatically
become immediately due and payable together with interest
accrued thereon and, to the extent permitted by law, the
Make-Whole Amount at such time with respect to the
principal amount of such Notes, without presentment,
demand, protest or notice of any kind, all of which are
hereby expressly waived, and,
(ii) If any Event of Default other than those in Section 8.1(h),
Section 8.1(i) or Section 8.1(j) hereof shall exist, the
Required Holders may exercise any right, power or remedy
permitted to the holders by law, and shall have, in
particular, without limiting the generality of the
foregoing, the right to declare the entire principal of,
and all interest accrued on, all the Notes then outstanding
to be, and such Notes shall thereupon become, forthwith due
and payable, without any presentment, demand, protest or
other notice of any kind, all of which are hereby
expressly waived, and the Company shall forthwith pay to
the holder or holders of all the Notes then outstanding
the entire principal of, and interest accrued on, the
Notes and, to the extent permitted by law, the Make-Whole
Amount at such time with respect to such principal amount
of such Notes.
(b) Acceleration on Payment Default. During the existence of an
Event of Default described in Section 8.1(a) or Section 8.1(b)
hereof, and irrespective of whether the Notes then outstanding
shall have been declared to be due and payable pursuant to
Section 8.2(a)(ii) hereof, any holder of Notes who or which
shall have not consented to any waiver with respect to such
Event of Default may, at his or its option, by notice in
writing to the Company, declare the Notes then held by such
holder to be, and such Notes shall thereupon become, forthwith
due and payable together with all interest accrued thereon,
without any presentment, demand, protest or other notice of any
kind, all of which are hereby expressly waived, and the Company
shall forthwith pay to such holder the entire principal of and
interest accrued on such Notes and, to the extent permitted by
law, the Make-Whole Amount at such time with respect to such
principal amount of such Notes.
(c) Valuable Rights. The Company acknowledges, and the parties
hereto agree, that the right of each holder to maintain its
investment in the Notes free from repayment by the Company
(except as herein specifically provided for) is a valuable right
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.
(d) Other Remedies. During the existence of an Event of Default and
irrespective of whether the Notes then outstanding shall have
been declared to be due and payable pursuant to Section 8.2(a)
(ii) hereof and irrespective of whether any holder of
Notes then outstanding shall otherwise have pursued or be
pursuing any other rights or remedies, any holder of Notes may
proceed to protect and enforce its rights hereunder and under
such Notes by exercising such remedies as are available to such
holder in respect thereof under applicable law, either by suit
in equity or by action at law, or both, whether for specific
performance of any agreement contained herein or in aid of the
exercise of any power granted herein, provided that the maturity
of such holder's Notes may be accelerated only in accordance
with Section 8.2(a) and Section 8.2(b) hereof.
(e) Nonwaiver and Expenses. No course of dealing on the part of any
holder of Notes nor any delay or failure on the part of any
holder of Notes to exercise any right shall operate as a
waiver of such right or otherwise prejudice such holder's
rights, powers and remedies. If the Company shall fail to pay
when due any principal of, or Make-Whole Amount or interest on,
any Note, or shall fail to comply with any other provision
hereof, the Company shall pay to each holder of Notes, to the
extent permitted by law, such further amounts as shall be
sufficient to cover the costs and expenses, including but not
limited to reasonable attorneys' fees, incurred by such holder
in collecting any sums due on such Notes or in otherwise
assessing, analyzing or enforcing any rights or remedies
that are or may be available to it.
8.3 Annulment of Acceleration of Notes.
If a declaration is made pursuant to Section 8.2(a)(ii) hereof, then and
in every such case, the Required Holders may, by written instrument filed with
the Company within ninety (90) days after such declaration, rescind and annul
such declaration, and the consequences thereof, provided that at the time such
declaration is annulled and rescinded:
(a) no judgment or decree shall have been entered for the payment of
any moneys due on or pursuant hereto or the Notes;
(b) all arrears of interest upon all the Notes and all other sums
payable hereunder and under the Notes (except any principal of,
or interest or Make-Whole Amount on, the Notes which shall have
become due and payable by reason of such declaration under
Section 8.2(a)(ii) hereof) shall have been duly paid; and
(c) each and every other Default and Event of Default shall have
been waived pursuant to Section 10.6 hereof or otherwise made
good or cured; and provided further that no such rescission and
annulment shall extend to or affect any subsequent Default or
Event of Default or impair any right consequent thereon.
9. INTERPRETATION OF THIS AGREEMENT
9.1 Terms Defined.
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, a Person (other than a Subsidiary)
(a) that directly or indirectly through one or more intermediaries
Controls, or is Controlled by, or is under common Control with,
the Company,
(b) that beneficially owns or holds five percent (5%) or more of any
class of the Voting Stock of the Company,
(c) five percent (5%) or more of the Voting Stock (or in the case of
a Person that is not a corporation, five percent (5%) or more of
the equity interest) of which is beneficially owned or held by
the Company or a Subsidiary, or
(d) that is an officer or director (or a member of the immediate
family of an officer or director) of the Company or any
Subsidiary, at such time. 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.
Agreement, this -- means this Note Purchase Agreement, as it may be
amended and restated from time to time.
Basket Liens -- Section 6.5(a)(viii).
Basket Secured Debt -- Section 6.5(a)(viii)(A).
Business Day -- means a day other than a Saturday, a Sunday or, a day on
which the bank designated by the holder of a Note to
receive for such holder's account payments on such
Note is required by law (other than a general banking
moratorium or holiday for a period exceeding four (4)
consecutive days) to be closed.
Capital Lease -- means, at any time, a lease with respect to which the
lessee is required to recognize the acquisition of an
asset and the incurrence of a liability at such time.
Closing -- Section 1.2(b).
Closing Date -- Section 1.2(b).
Closing Date Subsidiary Debt -- Section 6.9(a)(i).
Combined Subsidiary Funded Debt -- means, at any time, the aggregate
amount of Subsidiary Funded Debt of all
Subsidiaries determined on a combined
basis at such time.
Company -- has the meaning specified in the introductory sentence hereof.
Consolidated Funded Debt -- means, at any time, the amount of Funded Debt
of the Company, and the amount of Subsidiary
Funded Debt of all Subsidiaries, determined on
a consolidated basis at such time.
Consolidated Shareholders' Equity -- means, at any time,
(a) the amount of shareholders' equity of the Company and the
Subsidiaries (but excluding, without limitation, all Preferred
Stock other than perpetual Preferred Stock and, to the extent
included therein, minority interest), minus
(b) (i) the Restricted Basket Transfer Proceeds Amount, plus
(ii) the Restricted Subsidiary Net Worth Amount,
all determined on a consolidated basis at such time.
Consolidated Tangible Net Worth -- means, at any time, the amount equal to
(a) the sum of
(i) the par value or stated value (as the case may be) at such
time of all authorized, issued and outstanding capital
stock of the Company and the Subsidiaries (excluding
capital stock held in treasury), plus (or minus in each
case of a deficit),
(ii) the amount of the paid-in capital and retained earnings at
such time of the Company and the Subsidiaries, plus
(iii) the amount of Unamortized Tax Incentive Grants and Tax
Incentive Financings, plus
(v) the amount of the IRC 447(i) Suspense Account Amount,
minus
(b) (i) the net book value (after deducting related depreciation,
obsolescence, amortization, valuation and other proper
reserves) of all Intangible Assets of the Company and the
Subsidiaries, plus
(ii) the Restricted Basket Transfer Proceeds Amount, plus
(iii) the Restricted Subsidiary Net Worth Amount,
all determined on a consolidated basis at such time. As
used in this definition,
Intangible Assets - with respect to any Person, means the following:
(a) deferred assets (including, without limitation, insurance
and prepaid taxes), other than prepaid expenses which are
refundable;
(b) patents, copyrights, trademarks, trade names, service
marks, brand names, franchises, goodwill, experimental
expenses and other similar intangibles;
(c) unamortized debt discount and expense; and
(d) all other Property which would be considered to be
intangible under generally accepted accounting principles.
IRC 447(i) Suspense Account Amount -- means, at any time, the amount
included in deferred tax
liabilities on a consolidated
balance sheet of the Company
and the Subsidiaries prepared
in accordance with GAAP at such
time in respect of deferred tax
liabilities incurred in
connection with section 447(i)
of the IRC.
Unamortized Tax Incentive Grants and Tax Incentive Financings --
means, at any time, the amount included in liabilities on a
consolidated balance sheet of the Company and the Subsidiaries
prepared in accordance with GAAP at such time in respect of all
monies granted by political subdivisions as contractual
concessions for economic development by the Company or its
Subsidiaries in such political subdivisions.
Consolidated Total Assets -- means, at any time, an amount equal to the
net book value (net of related depreciation,
obsolescence, amortization, valuation, and
other proper reserves) of all assets of the
Company and the Subsidiaries minus the amount
of minority interest of the Company and the
Subsidiaries, determined on a consolidated
basis at such time.
Default -- means an event or condition the occurrence of which would, with
the lapse of time or the giving of notice or both, become an
Event of Default.
Disposition Value -- means, at any time, with respect to any Property
(a) in the case of Property that does not constitute Subsidiary
Stock, the net book value thereof at such time, and
(b) in the case of Property that constitutes Subsidiary Stock, an
amount equal to that percentage of the net book value of the
assets of the Subsidiary that issued such stock as is equal to
the percentage of all of the outstanding Voting Stock of such
Subsidiary represented by such Subsidiary Stock (assuming, in
the case of Subsidiary Stock that is convertible into such
Voting Stock, conversion of such Subsidiary Stock),
determined at such time.
Distribution -- means, in respect of any corporation
(a) dividends or other distributions on capital stock of the
corporation (except distributions in such stock), and
(b) the redemption or acquisition of such stock or of warrants,
rights or other options to purchase such stock (except when
solely in exchange for such stock) unless made,
contemporaneously, from the net proceeds of a sale of such
stock.
Environmental Protection Laws -- means any law, statute or regulation
enacted by any jurisdiction in connection
with or relating to the protection or
regulation of the environment,
including, without limitation, those
laws, statutes and regulations regulating
the disposal, removal, production,
storing, refining, handling,
transferring, processing or transporting
of hazardous or toxic substances, and any
orders, decrees or judgments issued by
any court of competent jurisdiction in
connection with any of the foregoing.
ERISA -- means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
ERISA Affiliate -- means any corporation or trade or business that is a
member of the same controlled group of corporations as
the Company, or is under common control with the
Company, in each case within the meaning of section
414(b) or section 414(c) of the IRC.
Event of Default -- Section 8.1.
Exchange Act -- means the Securities and Exchange Act of 1934, as amended
from time to time.
Excluded Transfers -- Section 6.8(b).
Fair Market Value -- means, with respect to any Property, the sale value
of such Property that would be realized in an arm's-
length sale at such time between an informed and
willing buyer, and an informed and willing seller,
under no compulsion to buy or sell, respectively.
Foreign Pension Plan -- means any plan, fund or other similar program
(a) established or maintained outside of the United States of
America by any one or more of the Company or the Subsidiaries
primarily for the benefit of the employees (substantially all of
whom are aliens not residing in the United States of America) of
the Company or such Subsidiaries, which plan, fund or other
similar program provides for retirement income for such
employees or results in a deferral of income for such
employees in contemplation of retirement, and
(b) not otherwise subject to ERISA.
Funded Debt -- means, at any time, with respect to any Person,
Indebtedness of such Person having a final maturity of more
than one (1) year from such time or that is renewable or
extendible at the option of such Person for a period more
than one (1) year from the date of determination.
GAAP -- means accounting principles as promulgated from time to time in
statements, opinions and pronouncements by the American Institute
of Certified Public Accountants and the Financial Accounting
Standards Board and in such statements, opinions and
pronouncements of such other entities with respect to financial
accounting of for-profit entities as shall be accepted
by a substantial segment of the accounting profession in the
United States.
Governmental Authority -- means
(a) the government of
(i) the United States of America and 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
that asserts any jurisdiction over the conduct of the
affairs of, or the Property of the Company or any
Subsidiary, and
(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 (for the purposes of this
definition, the "Guarantor") 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
(the "Primary Obligor") in any manner, whether directly or
indirectly, including, without limitation, obligations
incurred through an agreement, contingent or otherwise, by the
Guarantor:
(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 working capital or other balance sheet
condition or any income statement condition of the Primary
Obligor or otherwise to advance or make available funds for
the purchase or payment of such indebtedness or
obligation;
(c) to lease Property or to purchase Securities or other Property or
services primarily for the purpose of assuring the owner of such
indebtedness or obligation of the ability of the Primary
Obligor to make payment of the indebtedness or obligation; or
(d) otherwise to assure the owner of the indebtedness or obligation
of the Primary Obligor against loss in respect thereof.
For purposes of computing the amount of any Guaranty, in
connection with any computation of indebtedness or other
liability, it shall be assumed that the indebtedness or other
liabilities that are the subject of such Guaranty are direct
obligations of the issuer of such Guaranty, and the amount of
the Guaranty is the amount of the direct obligation then
outstanding.
Indebtedness -- with respect to any Person means, without duplication,
(a) its liabilities for borrowed money (whether or not evidenced by
a Security) and its obligations in respect of mandatorily
redeemable preferred stock;
(b) any liabilities for borrowed money secured by any Lien existing
on Property owned by such Person (whether or not such
liabilities have been assumed);
(c) any obligations in respect of any Capital Lease of such Person;
(d) the present value of all payments due under any arrangement for
retention of title or any conditional sale agreement (other than
a Capital Lease) discounted at the implicit rate, if known, with
respect thereto or, if unknown, at 8% per annum;
(e) obligations of such Person in respect of letters of credit or
instruments serving a similar function issued or accepted by
banks and other financial institutions for the account of such
Person (whether or not representing obligations for borrowed
money);
(f) the aggregate net obligation under Swaps of such Person; and
(g) any Guaranty of such Person of any obligation or liability of
another Person.
As used in this definition,
Swaps -- means, with respect to any Person, obligations with respect
to interest rate swaps and currency swaps and similar
obligations obligating such Person to make payments, whether
periodically or upon the happening of a contingency, except
that if any agreement relating to such obligation provides
for the netting of amounts payable by and to such Person
thereunder or if any such agreement provides for the
simultaneous payment of amounts by and to such Person, then
in each such case, the amount of such obligations shall be
the net amount thereof. The aggregate net obligation of
Swaps at any time shall be the aggregate amount of the
obligations of such Person under all Swaps assuming all
such Swaps had been terminated by such Person as of the end
of the then most recently ended fiscal quarter of such
Person. If such net aggregate obligation shall be an
amount owing to such Person, then the amount shall be deemed
to be Zero Dollars ($0).
Intergroup Transfer -- Section 6.8(c).
Investment -- means investments, made in cash or by delivery of Property,
by the Company or a Subsidiary in any Person, whether by
acquisition of stock, indebtedness or other obligation or
Security, or by loan, Guaranty, advance or capital
contribution, or otherwise, or in any Property.
IRC -- means the Internal Revenue Code of 1986, together with all rules
and regulations promulgated pursuant thereto, as amended from time
to time.
Lien -- means any interest in Property securing an obligation owed to, or
a claim by, a Person other than the owner of the Property, whether
such interest is based on the common law, statute or contract, and
including but not limited to the security interest lien arising
from a mortgage, encumbrance, pledge, conditional sale or trust
receipt or a lease, consignment or bailment for security purposes,
and the filing of any financing statement under the Uniform
Commercial Code of any jurisdiction, or an agreement to give any
of the foregoing. The term "Lien" includes reservations,
exceptions, encroachments, easements, rights-of-way, covenants,
conditions, restrictions, leases and other title exceptions and
encumbrances affecting real property and includes, with respect to
stock, stockholder agreements, voting trust agreements, buy-back
agreements and all similar arrangements. For the purposes hereof,
the Company and each Subsidiary shall be deemed to be the owner of
any Property that it holds or shall have acquired subject to a
conditional sale agreement, Capital Lease or other arrangement
pursuant to which title to the Property has been retained by or
vested in some other Person for security purposes, and such
retention or vesting shall be deemed a Lien.
Make-Whole Amount -- means, with respect to any principal amount of
Indebtedness (the "Prepaid Principal") paid for any
reason on a date (the "Prepayment Date"), the excess
(if any) of the amount of the Present Value of the
Prepaid Cash Flows determined with respect thereto
minus the amount of such Prepaid Principal. As used
in this definition,
Present Value of the Prepaid Cash Flows -- means, with respect to any
Prepaid Principal and any
Prepayment Date thereof,
the sum of the present
values of the then
remaining scheduled
payments of principal and
interest that would have
been payable in respect of
such Prepaid Principal but
for such prepayment or
acceleration and will no
longer be payable as a
result thereof. In
determining such present
values,
(i) the amount of interest accrued on such Prepaid Principal
since the scheduled interest payment date immediately
preceding such Prepayment Date shall be deducted from the
first of such payments of interest, and
(ii) a discount rate equal to the Make-Whole Discount Rate
determined with respect to such Prepayment Date and Prepaid
Principal divided by two (2), and a discount period of six
(6) months of thirty (30) days each, shall be used.
Applicable H.15 - means, at any time, United States Federal Reserve
Statistical Release H.15(519) then most recently
published and available to the public, or if such
publication is not available, then any other
source of current information in respect of
interest rates on securities of the United States
of America that is generally available and,
in the judgment of the Required Holders, provides
information reasonably comparable to the H.15(519)
report.
Applicable H.15 Rate -- means, with respect to any Prepaid Principal
and Prepayment Date thereof, the then most
current annual yield to maturity of the
hypothetical United States Treasury
obligation listed in the Applicable H.15 with
a Treasury Constant Maturity (as such term is
defined in such Applicable H.15) equal to the
Weighted Average Life to Maturity of such
Prepaid Principal. If no such United States
Treasury obligation with a Treasury Constant
Maturity corresponding exactly to such
Weighted Average Life to Maturity is listed,
then the yields for the two (2) then most
current hypothetical United States Treasury
obligations with Treasury Constant Maturities
most closely corresponding to such Weighted
Average Life to Maturity (one (1) with a
longer maturity and one (1) with a shorter
maturity, if available) shall be calculated
pursuant to the immediately preceding
sentence and the Make-Whole Discount Rate
shall be interpolated or extrapolated from
such yields on a straight-line basis.
Bloomberg Rate -- means, with respect to any Prepaid Principal and
any Prepayment Date in respect thereof, the per
annum yield reported on the Bloomberg Financial
Markets System at 10:00 a.m. (New York time) on the
second (2nd) Business Day preceding such Prepayment
Date for United States government Securities having
a maturity (rounded to the nearest month)
corresponding to the Weighted Average Life to
Maturity of such Prepaid Principal. Page USD shall
be used as the source of such yields, or if not
then available, such other screen available on the
Bloomberg Financial Markets System as shall, in the
opinion of the Required Holders, provide equivalent
information.
Make-Whole Discount Rate -- means, with respect to any Prepaid
Principal and Prepayment Date, fifty one-
hundredths percent (0.50%) per annum plus
the per annum percentage rate (rounded to
the nearest three decimal (3) places)
equal to the bond equivalent yield to
maturity derived from the Bloomberg Rate,
or if the Bloomberg Rate is not then
available, the Applicable H.15 Rate,
determined in respect thereof.
Remaining Dollar-Years -- means, with respect to any Prepaid
Principal and Prepayment Date thereof, the
result obtained by
(a) multiplying, in the case of each required payment of
principal (including payment at maturity) that would have
been payable in respect of such Prepaid Principal but for
such prepayment and is no longer payable as a result
thereof,
(i) an amount equal to such required payment of principal,
by
(ii) the number of years (calculated to the nearest one-
twelfth) that will elapse between such Prepayment Date
and the date such required principal payment would be
due if such Prepaid Principal had not been so
prepaid, and
(b) calculating the sum of each of the products obtained in the
preceding subsection (a).
Weighted Average Life to Maturity -- means, with respect to any
Prepaid Principal and Prepayment
Date thereof, the number of
years obtained by dividing the
Remaining Dollar-Years of such
Prepaid Principal determined on
such Prepayment Date by such
Prepaid Principal.
Material Adverse Effect -- means a material adverse effect on the
business, prospects, profits, Properties or
condition (financial or otherwise) of the
Company and the Subsidiaries, in the
aggregate, or the ability of the Company to
perform its obligations set forth herein and in
the Notes.
Material Subsidiary -- means, at any time, a Subsidiary that,
(a) at any time during the then current fiscal year or the two (2)
then preceding fiscal years of the Company, constituted more
than three percent (3%) of Consolidated Total Assets or
Consolidated Shareholders' Equity, or
(b) accounted for more than three percent (3%) of the revenues or
net income of the Company and its consolidated subsidiaries,
determined on a consolidated basis, in respect of any one or
more of the then preceding twelve (12) fiscal quarters of the
Company.
Merger Transfer -- Section 6.8(d).
Multiemployer Plan -- means any "multiemployer plan" (as defined in
section 3(37) of ERISA) in respect of which the
Company or any ERISA Affiliate is an "employer" (as
such term is defined in section 3 of ERISA).
Net Transfer Proceeds -- means the Fair Market Value of the proceeds (of
whatever type) paid or payable to the Company and
the Subsidiaries in respect of the Transfer of
any of their respective Properties, determined as
of the date of the substantial completion of such
transfer, net of ordinary and customary expenses
incurred by the Company and the Subsidiaries in
connection with such Transfer and paid to Persons
other than the Company, a Subsidiary or an
Affiliate.
Note Purchase Agreements -- Section 1.2(c).
Noteholder Approved Transfer -- Section 6.8(g).
Notes -- Section 1.1.
Offered Prepayment Amount -- Section 4.4(a)(i).
Ordinary Course Transfer -- Section 6.8(a).
Other Purchasers -- Section 1.2(c).
PBGC -- means the Pension Benefit Guaranty Corporation, and any Person
succeeding to the functions of the PBGC.
Permitted Lines of Business -- means,
(a) Meat (including chicken, turkey, beef, lamb and pork), poultry
and seafood production and processing,
(b) Fruit and vegetable production and processing,
(c) Ocean transportation and related ground transportation and
support,
(d) Animal feed production and processing,
(e) Bag production,
(f) Flour and feed milling,
(g) Commercial and residential construction,
(h) Power production,
(i) Textile production,
(j) Short-line railroad transportation,
(k) Commodity merchandising,
(l) Baking, and
(m) Cash and investments held for future use by the Company and the
Subsidiaries in connection with any of the aforementioned
Permitted Lines of Business.
Pension Plan -- means, at any time, any "employee pension benefit plan"
(as such term is defined in section 3 of ERISA)
maintained at such time by the Company or any ERISA
Affiliate for employees of the Company or such ERISA
Affiliate, excluding any Multiemployer Plan.
Person -- means an individual, partnership, corporation, trust,
unincorporated organization, or a government or agency or
political subdivision thereof.
Placement Memorandum -- Section 2.1.
Preferred Stock -- means, with respect to any corporation, capital shares
or capital stock of such corporation that are entitled
to preference or priority over any other capital shares
or capital stock of such corporation in respect of
either or both of the payment of dividends or the
distribution of assets upon liquidation.
Prepayment Transfer -- Section 6.8(f).
Property -- means any interest in any kind of property or asset, whether
real, personal or mixed, and whether tangible or intangible.
Property Disposition Date -- Section 6.8(b).
Purchase Money Lien -- means,
(a) a Lien on tangible Property (or a group of related items of
Property the substantial portion of which are tangible),
properly classifiable in accordance with GAAP as long-term,
acquired or constructed by the Company or any Subsidiary, which
Lien secures Indebtedness used by the owner of such Property to
pay for all or a portion of the related purchase price or
construction costs of such Property, provided that
(i) such Lien shall not extend to or cover any Property other
than Property acquired or constructed after the Closing
Date with the proceeds of the Indebtedness secured therby,
and shall not secure Indebtedness other than such
Indebtedness,
(ii) such Lien shall be imposed on such Property within one
hundred twenty (120) days after the acquisition thereof or
the substantial completion thereof, and
(iii) such Lien shall secure Indebtedness in an amount not
exceeding one hundred percent (100%) of the cost of
acquisition or construction of the Property to which such
Indebtedness relates, and
(b) Liens existing on Property of any corporation at the time it
becomes a Subsidiary or merges with or consolidates into the
Company or a Subsidiary, and Liens existing on Property acquired
by the Company or any Subsidiary that were in existence
at the time of such acquisition, provided that
(i) such Lien shall not extend to or cover any Property other
than the Property subject to such Lien at the time of such
transaction, and shall not secure Indebtedness other than
the Indebtedness secured at the time of such transaction,
(ii) such Lien shall not secure Indebtedness in an amount
exceeding one hundred percent (100%) of the Fair Market
Value of such Property measured at the time of such
transaction, and
(iii) such Lien shall not have been created in contemplation of
any such transaction, and shall not have been created by
the Company or a Subsidiary.
Purchasers -- means the Persons listed as purchasers of Notes on Annex 1
hereto.
Reinvested Transfer -- Section 6.8(e).
Required Holders -- means, at any time, the holders of at least fifty-one
percent (51%) in principal amount of the Notes at the
time outstanding (exclusive of Notes then owned by any
one or more of the Company, any Subsidiary or any
Affiliate).
Required Principal Payment -- Section 4.1.
Restricted Basket Transfer Proceeds Amount --
means, at any time, the net book value of all Restricted Basket
Transfer Proceeds of the Company and the Subsidiaries, determined at
such time. As used in this definition,
Restricted Basket Transfer Proceeds --
means all consideration other than cash received by the Company
or any Subsidiary in respect of any Transfer of Property of the
Company or any Subsidiary permitted solely by Section 6.8(b)
hereof and in which the Fair Market Value of the aggregate
consideration payable for such Transfer and all related
Transfers is greater than Seven Million Five Hundred Thousand
Dollars ($7,500,000).
Restricted Subsidiary Net Worth Amount --
means, at any time, with respect to any Subsidiary, the amount of
the shareholders' equity of such Subsidiary that cannot at such
time be paid as a dividend on the capital stock of such
Subsidiary by virtue of restrictions, direct or indirect, on the
payment of such dividends imposed by the terms of any
Indebtedness, whether or not such Indebtedness is recourse or
non-recourse to such Subsidiary.
Securities Act -- means the Securities Act of 1933, as amended.
Security -- means "security" as defined in section 2(1) of the Securities
Act.
Senior Financial Officer -- means the chief financial officer, principal
accounting officer, treasurer or
comptroller of the Company.
Senior Officer -- means the chairman of the board of directors, the
president, the comptroller, the treasurer and any vice-
president of the Company.
Subsidiary -- means, at any time, a corporation that, in accordance with
GAAP, is properly included in a consolidated balance sheet
of the Company and its consolidated subsidiaries prepared at
such time, as a subsidiary of the Company.
Subsidiary Funded Debt -- means, at any time, with respect to any
Subsidiary,
(a) Funded Debt of such Subsidiary,
(b) Preferred Stock of such Subsidiary.
For purposes of determining the amount of Subsidiary Funded Debt at any time,
the amount of Subsidiary Funded Debt shall include the amount of the principal
of all Indebtedness constituting Subsidiary Funded Debt, the amount of accrued
and unpaid interest thereon, the par or stated value of all Preferred Stock
constituting Subsidiary Funded Debt, and the amount of declared but
unpaid dividends thereon, and any other amounts due in respect of such
Indebtedness and Preferred Stock.
Subsidiary Stock -- means the capital stock of any Subsidiary and any
security exchangeable for, or convertible into, such
capital stock.
Successor Corporation -- Section 6.4.
Transfer -- Section 6.8.
Transfer Date -- Section 4.4(a)(ii).
Voting Stock -- means capital stock of any class or classes of a
corporation the holders of which are ordinarily, in the
absence of contingencies, entitled to vote in the election
of corporate directors (or Persons performing similar
functions).
Wholly-Owned Subsidiaries -- means, at any time, a Subsidiary all of the
capital stock of which, and securities
convertible into, exchangeable for, or
representing the right to purchase,
such capital stock (other than directors'
qualifying shares) is owned at such time by
any one or more of the Company and the other
Wholly-Owned Subsidiaries, free of any Lien.
9.2 Generally Accepted Accounting Principles.
Where the character or amount of any asset or liability or item of income
or expense, or any consolidation or other accounting computation is required to
be made for any purpose hereunder, it shall be done in accordance with GAAP as
in effect on the date of, or at the end of the period covered by, the financial
statements from which such asset, liability, item of income, or item of
expense, is derived, or, in the case of any such computation, as in effect on
the date as of which such computation is required to be determined, provided,
that if any term defined herein includes or excludes amounts, items or concepts
that would not be included in or excluded from such term if such term was
defined with reference solely to GAAP, such term will be deemed to include
or exclude such amounts, items or concepts as set forth herein. Whenever a
calculation based on the consolidated financial position of a group of
corporations is required hereby, investments by members of the group in
corporations which are defined hereby to not be members of the group shall be
accounted for using the cost method.
9.3 Directly or Indirectly.
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, including
actions taken by or on behalf of any partnership in which such Person is a
general partner.
9.4 Section Headings and Table of Contents and Construction.
(a) Section Headings and Table of Contents, etc. The titles of the
Sections of this Agreement and the Table of Contents of this
Agreement appear as a matter of convenience only, do not
constitute a part hereof and shall not affect the construction
hereof. The words "herein," "hereof," "hereunder" and "hereto"
refer to this Agreement as a whole and not to any particular
Section or other subdivision.
(b) Construction. Each covenant contained herein shall be construed
(absent an express contrary provision herein) as being
independent of each other covenant contained herein, and
compliance with any one covenant shall not (absent such an
express contrary provision) be deemed to excuse compliance with
one or more other covenants.
9.5 Governing Law.
THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED
AND ENFORCED IN ACCORDANCE WITH, INTERNAL NEW YORK LAW.
10. MISCELLANEOUS
10.1 Communications.
(a) Method; Address. All communications hereunder or under the
Notes shall be in writing, shall be hand delivered, deposited
into the United States mail (registered or certified mail),
postage prepaid, sent by overnight courier, or sent by facsimile
transmission (confirmed by delivery by overnight courier sent on
the same day as such facsimile transmission) and shall be
addressed,
(i) if to the Company,
Seaboard Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax. (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Vice-President - Finance
or at such other address as the Company shall have furnished in writing to
all holders of the Notes at the time outstanding, and
(ii) if to any of the holders of the Notes,
(A) if such holders are the Purchasers, at their
respective addresses set forth on Annex 1 hereto, and
further including any parties referred to on such
Annex 1 which are required to receive notices in
addition to such holders of the Notes, and
(B) if such holders are not the Purchasers, at their
respective addresses set forth in the register for the
registration and transfer of Notes maintained
pursuant to Section 6.3 hereof, or to any such party
at such other address as such party may designate by
notice duly given in accordance with this Section 10.1
to the Company (which other address shall be
entered in such register).
(b) When Given. Any communication shall be deemed to be received
when actually received at the address of the addressee.
10.2 Confidentiality.
Any information concerning the Company or any Subsidiary that has been
supplied to any holder of Notes by the Company or such Subsidiary and
identified in writing by such party as confidential and that is not, at the
time supplied to such holder or thereafter, information available to the
public shall be treated as confidential by such holder in accordance with the
procedures and standards that such holder generally applies to information of a
confidential nature. Notwithstanding the foregoing, the Company acknowledges
that the holder of any Note may deliver copies of any financial statements and
other documents delivered to such holder, and disclose any other information
disclosed to such holder, by or on behalf of the Company or any Subsidiary
in connection with or pursuant to this Agreement to
(a) such holder's directors or trustees, officers, employees, agents
and professional consultants,
(b) any other holder of any Note,
(c) any Person to which such holder offers to sell such Note or any
part thereof, provided that such Person first agrees in writing
to be subject to the requirements of this Section,
(d) any federal or state regulatory authority having jurisdiction
over such holder, and the National Association of Insurance
Commissioners or any similar organization,
(e) Standard & Poor's Corporation, ▇▇▇▇▇'▇ Investor Services, Inc.,
and any other nationally recognized financial rating service,
which is reviewing the credit rating of any holder of Notes, and
(f) any other Person to which such delivery or disclosure may be
necessary or appropriate in compliance with any law, rule,
regulation or order applicable to such holder, in response to
any subpoena or other legal process, in connection with any
litigation to which such holder is a party, or in order to
protect such holder's investment in such Note.
10.3 Reproduction of Documents.
This Agreement and all documents relating hereto, including, without
limitation,
(a) consents, waivers and modifications that may hereafter be
executed,
(b) documents received by you at the closing of your purchase of the
Notes (except the Notes themselves), and
(c) financial statements, certificates and other information
previously or hereafter furnished to you or any other holder of
Notes, may be reproduced by any holder of Notes by any
photographic, photostatic, microfilm, microcard, miniature
photographic, digital or other similar process and each holder
of Notes may destroy any original document so reproduced. The
Company agrees and stipulates that 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
holder of Notes in the regular course of business) and that any
enlargement, facsimile or further reproduction of such
reproduction shall likewise be admissible in evidence. Nothing
in this Section 10.3 shall prohibit the Company or any holder of
Notes from contesting the accuracy or validity of any such
reproduction.
10.4 Survival.
All warranties, representations, certifications and covenants made by the
Company herein or in any certificate or other instrument delivered by it or on
its behalf hereunder shall be considered to have been relied upon by you and
shall survive the delivery to you of the Notes regardless of any investigation
made by you or on your behalf. All statements in any such certificate or other
instrument shall constitute warranties and representations by the Company
hereunder. The obligations of the Company to make payments to the holders of
the Notes in respect of reimbursement of costs, charges, outlays and expenses
pursuant hereto shall survive the payment or prepayment of the Notes and the
termination hereof.
10.5 Successors and Assigns.
This Agreement shall inure to the benefit of and be binding upon the
successors and assigns of each of the parties hereto. The provisions hereof
are intended to be for the benefit of all holders, from time to time, of Notes,
and shall be enforceable by any such holder, whether or not an express
assignment to such holder of rights hereunder shall have been made by you
or your successor or assign.
10.6 Amendment and Waiver.
(a) Requirements. This Agreement may be amended, and the observance
of any term hereof may be waived, with (and only with) the
written consent of the Company and the Required Holders;
provided that no such amendment or waiver of any of the
provisions of Section 1 through Section 3 hereof, inclusive, or
any defined term used therein, shall be effective as to any
holder of Notes unless consented to by such holder in writing;
and provided further that no such amendment or waiver shall,
without the written consent of the holders of all Notes
(exclusive of Notes held by the Company, any Subsidiary or any
Affiliate) at the time outstanding,
(i) subject to Section 8 hereof, change the amount or time of
any prepayment or payment of principal or Make-Whole Amount
or the rate or time of payment of interest,
(ii) amend or waive the provisions of Section 8 hereof,
(iii) amend the definition of "Required Holders," or
(iv) amend or waive this Section 10.6.
(b) Solicitation of Noteholders.
(i) Solicitation. Each holder of the Notes (irrespective of the
amount of Notes then owned by it) shall be provided by the
Company with sufficient information to enable such holder
to make an informed decision with respect to any proposed
waiver or amendment of any of the provisions hereof or the
Notes. Executed or true and correct copies of any waiver
or consent effected pursuant to the provisions of this
Section 10.6 shall be delivered by the Company to each
holder of outstanding Notes forthwith following the date on
which the same shall have been executed and delivered by
all holders of outstanding Notes required to consent or
agree to such waiver or consent.
(ii) Payment. The Company shall not, directly or indirectly,
pay or cause to be paid any remuneration, whether by way of
supplemental or additional interest, fee or otherwise, or
grant any security, to any holder of Notes as
consideration for or as an inducement to the entering into
by any holder of Notes of any waiver or amendment of any of
the terms and provisions hereof unless such
remuneration is concurrently paid, or security is
concurrently granted, on the same terms, ratably to the
holders of all Notes then outstanding.
(iii) Scope of Consent. Any consent made pursuant to this
Section 10.6 by a holder of Notes that has transferred or
has agreed to transfer its Notes to the Company, any
Subsidiary or any Affiliate and has provided or has agreed
to provide such written consent as a condition to such
transfer shall be void and of no force and effect except
solely as to such holder, and any amendments
effected or waivers granted or to be effected or granted
that would not have been or would not be so effected or
granted but for such consent (and the consents of
all other holders of Notes that were acquired under the
same or similar conditions) shall be void and of no force
and effect, retroactive to the date such amendment
or waiver initially took or takes effect, except solely as
to such holder.
(c) Binding Effect. Except as provided in Section 10.6(b)(iii)
hereof, any amendment or waiver consented to as provided in this
Section 10.6 shall apply equally to all holders of Notes and
shall be binding upon them and upon each future holder of any
Note and upon the Company whether or not such Note shall have
been marked to indicate such amendment or waiver. No such
amendment or waiver shall extend to or affect any obligation,
covenant, agreement, Default or Event of Default not expressly
amended or waived or impair any right consequent thereon.
(d) Expenses. The Company shall pay when billed the reasonable
expenses (including expenses incurred in connection with
inspections made pursuant to Section 7.4 hereof) relating to
the consideration, negotiation, preparation or execution of any
amendments, waivers, or consents with respect to the provisions
hereof, and at any time when the parties hereto are conducting
"workout" negotiations, (including, without limitation, the fees
of professional advisors and attorneys and the allocated cost of
your counsel who are your employees or your affiliates'
employees), whether or not any such amendments, waivers or
consents are executed.
10.7 Payments on Notes.
(a) Manner of Payment. The Company shall pay all amounts payable
with respect to each Note (without any presentment of such Notes
and without any notation of such payment being made thereon) by
crediting, by federal funds bank wire transfer, the account of
the holder thereof in any bank in the United States of America
as may be designated in writing by such holder, or in such other
manner as may be reasonably directed or to such other address in
the United States of America as may be reasonably designated in
writing by such holder. Annex 1 hereto shall be deemed to
constitute notice, direction or designation (as appropriate) to
the Company with respect to payments as aforesaid. In the
absence of such written direction, all amounts payable with
respect to each Note shall be paid by check mailed and addressed
to the registered holder of such Note at the address shown in
the register maintained by the Company pursuant to Section 5.1
hereof.
(b) Payments Due on Holidays. If any payment due on, or with
respect to, any Note shall fall due on a day other than a
Business Day, then such payment shall be made on the first
Business Day following the day on which such payment shall have
so fallen due; provided that if all or any portion of such
payment shall consist of a payment of interest, for purposes of
calculating such interest, such payment shall be deemed to
have been originally due on such first following Business Day,
such interest shall accrue and be payable to (but not including)
the actual date of payment, and the amount of the next
succeeding interest payment shall be adjusted accordingly.
(c) Payments, When Received. Any payment to be made to the holders
of Notes hereunder or under the Notes shall be deemed to have
been made on the Business Day such payment actually becomes
available to such holder at such holder's bank prior
to 11:00 a.m. (local time of such bank).
10.8 Entire Agreement.
This Agreement constitutes the final written expression of all of the
terms hereof and is a complete and exclusive statement of those terms.
10.9 Duplicate Originals, Execution in Counterpart.
Two or more duplicate originals hereof may be signed by the parties, each
of which shall be an original but all of which together shall constitute one
and the same instrument. This Agreement may be executed in one or more
counterparts and shall be effective when at least one counterpart
shall have been executed by each party hereto, and each set of counterparts
that, collectively, show execution by each party hereto shall constitute one
duplicate original.
[Remainder of page intentionally blank. Next page is signature page.]
If this Agreement is satisfactory to you, please so indicate by signing the
acceptance at the foot of a counterpart hereof and returning such counterpart
to the Company, whereupon this Agreement shall become binding between us in
accordance with its terms.
Very truly yours,
SEABOARD CORPORATION
By
Name:
Title:
Accepted:
[PURCHASER]
By
Name:
Title: