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THE O'GARA COMPANY
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NOTE PURCHASE AGREEMENT
____________________
DATED AS OF MAY 30, 1997
$35,000,000 SENIOR NOTES DUE MAY 30, 2004
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TABLE OF CONTENTS
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1. AUTHORIZATION OF NOTES .......................................................... 1
2. SALE AND PURCHASE OF NOTES ...................................................... 1
3. CLOSING.......................................................................... 2
4. CONDITIONS TO CLOSING............................................................ 2
4.1 Representations and Warranties.......................................... 2
4.2 Performance; No Default ................................................ 2
4.3 Compliance Certificates ................................................ 2
4.4 Opinions of Counsel .................................................... 3
4.5 Purchase Permitted By Applicable Law, etc............................... 3
4.6 Sale of Other Notes .................................................... 3
4.7 Payment of Special Counsel Fees ........................................ 3
4.8 Private Placement Number................................................ 4
4.9 Changes in Corporate Structure.......................................... 4
4.10 Loan Agreement.......................................................... 4
4.11 Lien Releases .......................................................... 4
4.12 Guaranty Agreement...................................................... 4
4.13 Sharing Agreement ...................................................... 4
4.14 Proceedings and Documents .............................................. 4
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.................................... 5
5.1 Organization; Power and Authority ...................................... 5
5.2 Authorization, etc. .................................................... 5
5.3 Disclosure.............................................................. 5
5.4 Organization and Ownership of Shares of Subsidiaries; Affiliates........ 6
5.5 Financial Statements.................................................... 7
5.6 Compliance with Laws, Other Instruments, etc. .......................... 7
5.7 Governmental Authorizations, etc........................................ 7
5.8 Litigation; Observance of Agreements, Statutes and Orders .............. 7
5.9 Taxes .................................................................. 8
5.10 Title to Property; Leases .............................................. 8
5.11 Licenses, Permits, etc. ................................................ 8
5.12 Compliance with ERISA .................................................. 9
5.13 Private Offering by the Company ........................................ 9
5.14 Use of Proceeds; Margin Regulations .................................... 10
5.15 Existing Debt; Future Liens ............................................ 10
5.16 Foreign Assets Control Regulations, etc................................. 10
5.17 Status under Certain Statutes .......................................... 11
5.18 Environmental Matters .................................................. 11
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TABLE OF CONTENTS (CONT.)
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6. REPRESENTATIONS OF THE PURCHASER ................................................ 11
6.1 Purchase for Investment ................................................ 11
6.2 Source of Funds ........................................................ 12
7. INFORMATION AS TO COMPANY........................................................ 13
7.1 Financial and Business Information...................................... 13
7.2 Officer's Certificate .................................................. 16
7.3 Inspection.............................................................. 16
8. PAYMENT OF THE NOTES ............................................................ 17
8.1 Optional Prepayments with Make-Whole Amount ............................ 17
8.2 Allocation of Partial Prepayments ...................................... 17
8.3 Maturity; Surrender, etc. .............................................. 17
8.4 No Other Optional Prepayments or Purchase of Notes...................... 18
8.5 Make-Whole Amount ...................................................... 18
9. AFFIRMATIVE COVENANTS............................................................ 19
9.1 Compliance with Law .................................................... 19
9.2 Insurance .............................................................. 19
9.3 Maintenance of Properties .............................................. 20
9.4 Payment of Taxes and Claims ............................................ 20
9.5 Corporate Existence, etc. .............................................. 20
9.6 Maintenance of Office .................................................. 20
9.7 Pari Passu Ranking...................................................... 21
9.8 Guaranty Agreement...................................................... 21
10. NEGATIVE COVENANTS .............................................................. 21
10.1 Transactions with Affiliates............................................ 21
10.2 Line of Business........................................................ 21
10.3 Consolidated Net Worth.................................................. 22
10.4 Fixed Charges Coverage Ratio............................................ 22
10.5 Limitation on Debt...................................................... 22
10.6 Liens .................................................................. 24
10.7 Merger, Consolidation, etc. ............................................ 26
10.8 Sale of Assets, etc..................................................... 27
10.9 Restricted Payments .................................................... 28
10.10 Restricted Investments.................................................. 29
11. EVENTS OF DEFAULT................................................................ 31
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TABLE OF CONTENTS (CONT.)
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12. REMEDIES ON DEFAULT, ETC......................................................... 33
12.1 Acceleration............................................................ 33
12.2 Other Remedies.......................................................... 34
12.3 Rescission.............................................................. 34
12.4 No Waivers or Election of Remedies, Expenses, etc....................... 34
13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES.................................... 35
13.1 Registration of Notes .................................................. 35
13.2 Transfer and Exchange of Notes.......................................... 35
13.3 Replacement of Notes.................................................... 35
14. PAYMENTS ON NOTES................................................................ 36
14.1 Place of Payment........................................................ 36
14.2 Home Office Payment .................................................... 36
15. EXPENSES, ETC. .................................................................. 37
15.1 Transaction Expenses.................................................... 37
15.2 Survival................................................................ 37
16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE
AGREEMENT........................................................................ 37
17. AMENDMENT AND WAIVER ............................................................ 37
17.1 Requirements............................................................ 37
17.2 Solicitation of Holders of Notes........................................ 38
17.3 Binding Effect, etc..................................................... 38
17.4 Notes held by Company, etc. ............................................ 38
18. NOTICES.......................................................................... 39
19. REPRODUCTION OF DOCUMENTS........................................................ 39
20. CONFIDENTIAL INFORMATION ........................................................ 39
21. SUBSTITUTION OF PURCHASER........................................................ 41
22. MISCELLANEOUS.................................................................... 41
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TABLE OF CONTENTS (CONT.)
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22.1 Successors and Assigns.................................................. 41
22.2 Payments Due on Non-Business Days; When Payments Deemed
Received................................................................ 41
22.3 Severability............................................................ 42
22.4 Construction............................................................ 42
22.5 Counterparts............................................................ 42
22.6 Governing Law .......................................................... 42
SCHEDULE A -- Information Relating to Purchasers
SCHEDULE B -- Defined Terms
SCHEDULE 3 -- Payment Instructions
SCHEDULE 4.9 -- Changes in Corporate Structure
SCHEDULE 5.3 -- Disclosure Materials
SCHEDULE 5.4 -- Subsidiaries of the Company and Ownership of
Subsidiary Stock
SCHEDULE 5.5 -- Financial Statements
SCHEDULE 5.8 -- Certain Litigation
SCHEDULE 5.11 -- Patents, etc.
SCHEDULE 5.12 -- ERISA Affiliates
SCHEDULE 5.14 -- Use of Proceeds
SCHEDULE 5.15 -- Existing Debt and Liens
SCHEDULE 10.10 -- Existing Investments
EXHIBIT 1 -- Form of Senior Note due May 30, 2004
EXHIBIT 4.3(a) -- Form of Company Officer's Certificate
EXHIBIT 4.3(b) -- Form of Company Secretary's Certificate
EXHIBIT 4.3(c) -- Form of Initial Guarantor Secretary's
Certificate
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TABLE OF CONTENTS (CONT.)
EXHIBIT 4.4(a) -- Form of Opinion of Counsel for the Company
and the Initial Guarantors
EXHIBIT 4.4(b) -- Form of Opinion of Special Counsel for the
Purchasers
EXHIBIT 4.12 -- Form of Guaranty Agreement
EXHIBIT 4.13 -- Form of Sharing Agreement
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THE O'GARA COMPANY
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
SENIOR NOTES DUE MAY 30, 2004
Dated as of May 30, 1997
To the Purchaser Named on
the Signature Page Hereto
Ladies and Gentlemen:
THE O'GARA COMPANY, an Ohio corporation (together with its successors
and assigns, the "COMPANY"), agrees with you as follows:
1. AUTHORIZATION OF NOTES.
The Company will authorize the issue and sale of $35,000,000 aggregate
principal amount of its Senior Notes due May 30, 2004 (the "NOTES," such term to
include any such notes issued in substitution therefor pursuant to Section 13 of
this Agreement or the other Agreements (as hereinafter defined)). The Notes
shall bear interest at the Note Interest Rate and be substantially in the form
set out in Exhibit 1, with such changes therefrom, if any, as may be approved by
you and the Company. Certain capitalized terms used in this Agreement are
defined in Schedule B; references to a "Schedule" or an "Exhibit" are, unless
otherwise specified, to a Schedule or an Exhibit attached to this Agreement.
2. SALE AND PURCHASE OF NOTES.
Subject to the terms and conditions of this Agreement, the Company will
issue and sell to you and you will purchase from the Company, at the Closing
provided for in Section 3, Notes in the principal amount specified below your
name in Schedule A at the purchase price of 100% of the principal amount
thereof. Contemporaneously with entering into this Agreement, the Company is
entering into separate Note Purchase Agreements (collectively with this
Agreement, the "AGREEMENTS") identical with this Agreement with each of the
other purchasers named in Schedule A (the "OTHER PURCHASERS"), providing for the
sale at such Closing to each of the Other Purchasers of Notes in the principal
amount specified below its name in Schedule A. Your obligation hereunder and the
obligations of the Other Purchasers under the other Agreements are several and
not joint obligations and you shall have no obligation under any other Agreement
and no liability to any Person for the performance or non-performance by any
Other Purchaser thereunder.
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3. CLOSING.
The sale and purchase of the Notes to be purchased by you and the Other
Purchasers shall occur at the offices of ▇▇▇▇ & ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, at 10:00 a.m., local time, at a closing (the
"CLOSING") on June 3, 1997. At the Closing the Company will deliver to you one
or more Notes (as set forth below your name in Schedule A), in the denominations
indicated in Schedule A, in the aggregate principal amount of your purchase,
dated the date of the Closing and registered in your name (or in the name of
your nominee), against payment by federal funds wire transfer in immediately
available funds in the amount of the purchase price therefor, as directed by the
Company in Schedule 3. If at the Closing the Company shall fail to tender such
Notes to you as provided above in this Section 3, or any of the conditions
specified in Section 4 shall not have been fulfilled to your satisfaction, you
shall, at your election, be relieved of all further obligations under this
Agreement, without thereby waiving any rights you may have by reason of such
failure or such nonfulfillment.
4. CONDITIONS TO CLOSING.
Your obligation to purchase and pay for the Notes to be sold to you at
the Closing is subject to the fulfillment to your satisfaction, prior to or at
the Closing, of the following conditions (it being understood that such
conditions shall be deemed to have been fulfilled upon your payment of the
purchase price of the Notes, as contemplated by Section 3):
4.1 REPRESENTATIONS AND WARRANTIES.
The representations and warranties of the Obligors in the Financing
Documents shall be correct when made and at the time of the Closing.
4.2 PERFORMANCE; NO DEFAULT.
Each Obligor shall have performed and complied with all agreements and
conditions contained in the Financing Documents required to be performed or
complied with by it prior to or at the Closing and after giving effect to the
issue and sale of the Notes (and the application of the proceeds thereof as
contemplated by Schedule 5.14) no Default or Event of Default shall have
occurred and be continuing. Neither the Company nor any Subsidiary shall have
entered into any transaction since the date of the Memorandum that would have
been prohibited by any of Sections 10.1, 10.8, 10.9 or 10.10 had such Sections
applied since such date.
4.3 COMPLIANCE CERTIFICATES.
(a) COMPANY OFFICER'S CERTIFICATE. The Company shall have
delivered to you an Officer's Certificate, substantially in the form
set out in Exhibit 4.3(a), dated the date of the
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Closing, certifying that the conditions specified in Sections 4.1, 4.2
and 4.9 have been fulfilled.
(b) COMPANY SECRETARY'S CERTIFICATE. The Company shall have
delivered to you a certificate of its Secretary or one of its Assistant
Secretaries, substantially in the form set out in Exhibit 4.3(b), dated
the date of the Closing, certifying as to the resolutions attached
thereto and other corporate proceedings relating to the authorization,
execution and delivery of the Notes and the Agreements.
(c) SECRETARY'S CERTIFICATE OF INITIAL GUARANTOR. Each of the
Initial Guarantors shall have delivered to you a certificate of its
Secretary or one of its Assistant Secretaries, dated the date of the
Closing, certifying as to the resolutions attached thereto and other
corporate proceedings relating to the authorization, execution and
delivery of the Guaranty Agreement.
4.4 OPINIONS OF COUNSEL.
You shall have received opinions in form and substance satisfactory to
you, dated the date of the Closing,
(a) from ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, counsel for the Company
and the Initial Guarantors, substantially in the form set out in
Exhibit 4.4(a) and covering such other matters incident to the
transactions contemplated hereby as you or your counsel may reasonably
request (and the Company hereby instructs such counsel to deliver such
opinion to you), and
(b) from ▇▇▇▇ & ▇▇▇▇▇▇, your special counsel in connection
with such transactions, substantially in the form set out in Exhibit
4.4(b) and covering such other matters incident to such transactions as
you may reasonably request.
4.5 PURCHASE PERMITTED BY APPLICABLE LAW, ETC.
On the date of the Closing your purchase of Notes shall (a) be
permitted by the laws and regulations of each jurisdiction to which you are
subject, without recourse to provisions (such as section 1405(a)(8) of the New
York Insurance Law) permitting limited investments by insurance companies
without restriction as to the character of the particular investment, (b) not
violate any applicable law or regulation (including, without limitation,
Regulation G, T or X of the Board of Governors of the Federal Reserve System)
and (c) not subject you to any tax, penalty or liability under or pursuant to
any applicable law or regulation, which law or regulation was not in effect on
the date of your execution and delivery of this Agreement. If requested by you,
you shall have received an Officer's Certificate certifying as to such matters
of fact as you may reasonably specify to enable you to determine whether such
purchase is so permitted.
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4.6 SALE OF OTHER NOTES.
Contemporaneously with the Closing the Company shall sell to the Other
Purchasers and the Other Purchasers shall purchase the Notes to be purchased by
them at the Closing as specified in Schedule A.
4.7 PAYMENT OF SPECIAL COUNSEL FEES.
Without limiting the provisions of Section 15.1, the Company shall have
paid on or before the Closing the fees, charges and disbursements of your
special counsel referred to in Section 4.4(b) to the extent reflected in a
statement of such counsel rendered to the Company at least one Business Day
prior to the date of the Closing.
4.8 PRIVATE PLACEMENT NUMBER.
A Private Placement Number issued by Standard & Poor's CUSIP Service
Bureau (in cooperation with the Securities Valuation Office of the National
Association of Insurance Commissioners) shall have been obtained for the Notes.
4.9 CHANGES IN CORPORATE STRUCTURE.
Except as specified in Schedule 4.9, neither the Company nor any of its
Subsidiaries shall have changed its jurisdiction of incorporation, been a party
to any merger or consolidation, or succeeded to all or any substantial part of
the liabilities of any other entity, at any time following the date of the most
recent financial statements referred to in Schedule 5.5.
4.10 LOAN AGREEMENT.
The Company, ▇'▇▇▇▇-▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ Armoring Company and the Bank
shall have entered into the Loan Agreement, in form and substance satisfactory
to you, and the Company shall have delivered to you copies of the Loan Agreement
and each other document executed in connection therewith requested by you,
certified as true and correct by a Responsible Officer.
4.11 LIEN RELEASES.
You shall have received written evidence, in form and substance
satisfactory to you, that the Company's bank lenders (or their agent acting on
their behalf) under the credit facility of the Company to be replaced by the
Loan Agreement shall have released all Liens that such banks or such agent may
have on any property of the Company and its Subsidiaries.
4.12 GUARANTY AGREEMENT.
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You shall have received a counterpart of the Guaranty Agreement, duly
executed and delivered by the Initial Guarantors, substantially in the form of
Exhibit 4.12 (as amended or supplemented from time to time, the "GUARANTY
AGREEMENT"), and the Guaranty Agreement shall be in full force and effect.
4.13 SHARING AGREEMENT.
The Bank, you and the Other Purchasers shall have executed and
delivered (and the Obligors shall have executed and delivered the consent and
agreement thereto) the Sharing Agreement, substantially in the form of Exhibit
4.13 (as amended from time to time, the "SHARING AGREEMENT"), and the Sharing
Agreement shall be in full force and effect.
4.14 PROCEEDINGS AND DOCUMENTS.
All corporate and other proceedings in connection with the transactions
contemplated by the Financing Documents and all documents and instruments
incident to such transactions shall be satisfactory to you and your special
counsel, and you and your special counsel shall have received all such
counterpart originals or certified or other copies of such documents as you or
they may reasonably request.
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to you, as of the date of the
Closing, that:
5.1 ORGANIZATION; POWER AND AUTHORITY.
The Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of Ohio, and is duly qualified as a
foreign corporation and is in good standing in each jurisdiction in which such
qualification is required by law, other than those jurisdictions as to which the
failure to be so qualified or in good standing could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. The Company
has the corporate power and authority to own or hold under lease the properties
it purports to own or hold under lease, to transact the business it transacts
and proposes to transact, to execute and deliver the Agreements and the Notes
and to perform the provisions hereof and thereof.
5.2 AUTHORIZATION, ETC.
The Financing Documents have been duly authorized by all necessary
corporate action on the part of the Obligors, and each Financing Document
constitutes, and upon execution and delivery thereof each Note will constitute,
a legal, valid and binding obligation of each Obligor party thereto enforceable
against each such Obligor in accordance with its terms, except as such
enforceability may be limited by (a) applicable bankruptcy, insolvency,
reorganization, moratorium or other
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similar laws affecting the enforcement of creditors' rights generally and (b)
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
5.3 DISCLOSURE.
The Company, through its agent, ▇▇▇▇▇▇, Read & Co. Inc., has delivered
to you and each Other Purchaser a copy of a Confidential Private Placement
Memorandum, dated April 1997 (the "MEMORANDUM"), relating to the transactions
contemplated hereby. The Memorandum fairly describes, in all material respects,
the general nature of the business and principal properties of the Company and
its Subsidiaries. Except as disclosed in Schedule 5.3, and except with respect
to projections and other information relating to future performance, future
financial condition, future business operations and the like (collectively,
"FUTURE-ORIENTED INFORMATION"), the Financing Documents, the Memorandum, the
documents, certificates or other writings delivered to you by or on behalf of
the Company in connection with the transactions contemplated hereby and the
financial statements listed in Schedule 5.5, taken as a whole, do not contain
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading in light of the
circumstances under which they were made. All Future-Oriented Information
contained in the Memorandum and such documents, certificates or other writings
are based on reasonable assumptions, were prepared by the Company in good faith,
and represent the Company's good faith estimate of the future results set forth
therein. Except as disclosed in the Memorandum or as expressly described in
Schedule 5.3, or in one of the documents, certificates or other writings
identified therein, or in the financial statements listed in Schedule 5.5, since
December 31, 1996, there has been no change in the financial condition,
operations, business, properties or prospects of the Company or any Subsidiary
except changes that individually or in the aggregate could not reasonably be
expected to have a Material Adverse Effect. There is no fact known to the
Company that could reasonably be expected to have a Material Adverse Effect that
has not been set forth herein or in the Memorandum or in the other documents,
certificates and other writings delivered to you by or on behalf of the Company
specifically for use in connection with the transactions contemplated hereby.
5.4 ORGANIZATION AND OWNERSHIP OF SHARES OF SUBSIDIARIES;
AFFILIATES.
(a) Schedule 5.4 contains (except as noted therein) complete
and correct lists of the Company's Subsidiaries, showing, as to each
Subsidiary, the correct name thereof, the jurisdiction of its
organization, and the percentage of shares of each class of its Capital
Stock outstanding owned by the Company and each other Subsidiary.
(b) Neither the Company nor any of its Subsidiaries has any
Material business relationship with any Affiliate that is not a
Subsidiary.
(c) All of the outstanding shares of Capital Stock of each
Subsidiary shown in Schedule 5.4 as being owned by the Company and its
Subsidiaries have been validly
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issued, are fully paid and nonassessable and are owned by the Company
or another Subsidiary free and clear of any Lien (except as otherwise
disclosed in Schedule 5.4).
(d) Each Subsidiary identified in Schedule 5.4 is a
corporation or other legal entity duly organized, validly existing and
in good standing under the laws of its jurisdiction of organization (to
the extent that the concept of good standing is recognized in such
jurisdiction), and is duly qualified as a foreign corporation or other
legal entity and is in good standing in each jurisdiction in which such
qualification is required by law (to the extent that the concept of
good standing is recognized in such jurisdiction), other than those
jurisdictions as to which the failure to be so qualified or in good
standing could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. Each such Subsidiary has
the corporate or other power and authority to own or hold under lease
the properties it purports to own or hold under lease, to transact the
business it transacts and proposes to transact, to execute and deliver
the Financing Documents to which it is or is to be a party and to
perform the provisions thereof.
(e) No Subsidiary is a party to, or otherwise subject to any
legal restriction or any agreement (other than this Agreement, the
agreements listed in Schedule 5.4 and customary limitations imposed by
corporate law statutes) restricting the ability of such Subsidiary to
pay dividends out of profits or make any other similar distributions of
profits to the Company or any of its Subsidiaries that owns outstanding
shares of Capital Stock of such Subsidiary.
5.5 FINANCIAL STATEMENTS.
The Company has delivered to you and each Other Purchaser copies of the
financial statements of the Company and its Subsidiaries listed in Schedule 5.5.
All of said financial statements (including in each case the related schedules
and notes) fairly present in all material respects the consolidated financial
position of the Company and its Subsidiaries as of the respective dates
specified in such Schedule and the consolidated results of their operations and
cash flows for the respective periods so specified and have been prepared in
accordance with GAAP consistently applied throughout the periods involved except
as set forth in the notes thereto (subject, in the case of any interim financial
statements, to normal year-end adjustments and the absence of footnotes).
5.6 COMPLIANCE WITH LAWS, OTHER INSTRUMENTS, ETC.
The execution, delivery and performance by the Obligors of the
Financing Documents will not
(a) contravene, result in any breach of, or constitute a
default under, or result in the creation of any Lien in respect of any
property of the Company or any Subsidiary under, any indenture,
mortgage, deed of trust, loan, purchase or credit agreement, lease,
corporate charter, code of regulations or by-laws, or any other
agreement or instrument to
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which the Company or any Subsidiary is bound or by which the Company or
any Subsidiary or any of their respective properties may be bound or
affected,
(b) conflict with or result in a breach of any of the terms,
conditions or provisions of any order, judgment, decree, or ruling of
any court, arbitrator or Governmental Authority applicable to the
Company or any Subsidiary, or
(c) violate any provision of any statute or other rule or
regulation of any Governmental Authority applicable to the Company or
any Subsidiary.
5.7 GOVERNMENTAL AUTHORIZATIONS, ETC.
No consent, approval or authorization of, or registration, filing or
declaration with, any Governmental Authority is required in connection with the
execution, delivery or performance by the Obligors of any of the Financing
Documents.
5.8 LITIGATION; OBSERVANCE OF AGREEMENTS, STATUTES AND ORDERS.
(a) Except as disclosed in Schedule 5.8, there are no actions,
suits or proceedings pending or, to the knowledge of the Company,
threatened against or affecting the Company or any Subsidiary or any
property of the Company or any Subsidiary in any court or before any
arbitrator of any kind or before or by any Governmental Authority that,
individually or in the aggregate, could reasonably be expected to have
a Material Adverse Effect.
(b) Neither the Company nor any Subsidiary is in default under
any term of any agreement or instrument to which it is a party or by
which it is bound, or any order, judgment, decree or ruling of any
court, arbitrator or Governmental Authority or is in violation of any
applicable law, ordinance, rule or regulation (including, without
limitation, Environmental Laws) of any Governmental Authority, which
default or violation, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect.
5.9 TAXES.
The Company and its Subsidiaries have filed all tax returns that are
required to have been filed in any jurisdiction, and have paid all taxes shown
to be due and payable on such returns and all other taxes and assessments levied
upon them or their properties, assets, income or franchises, to the extent such
taxes and assessments have become due and payable and before they have become
delinquent, except for any taxes and assessments (a) the amount of which is not
individually or in the aggregate Material or (b) the amount, applicability or
validity of which is currently being contested in good faith by appropriate
proceedings and with respect to which the Company or a Subsidiary, as the case
may be, has established adequate reserves in accordance with GAAP. The Company
knows of no basis for any other tax or assessment that could reasonably be
expected to have a Material Adverse Effect. The charges, accruals and reserves
on the books of the Company and its Subsidiaries in respect of Federal, state or
other taxes for all fiscal periods are adequate. The Federal income tax
liabilities of the Company and its Subsidiaries have been determined by the
Internal Revenue Service and paid for all fiscal years up to and including the
fiscal year ended December 31, 1995.
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5.10 TITLE TO PROPERTY; LEASES.
The Company and its Subsidiaries have good and sufficient title to
their respective properties that individually or in the aggregate are Material,
including all such properties reflected in the most recent audited balance sheet
referred to in Section 5.5 or purported to have been acquired by the Company or
any Subsidiary after said date (except as sold or otherwise disposed of in the
ordinary course of business), in each case free and clear of Liens prohibited by
this Agreement. All leases that individually or in the aggregate are Material
are valid and subsisting and are in full force and effect in all material
respects.
5.11 LICENSES, PERMITS, ETC.
Except as disclosed in Schedule 5.11,
(a) the Company and its Subsidiaries own or possess all
licenses, permits, franchises, authorizations, patents, copyrights,
service marks, trademarks and trade names, or rights thereto, that
individually or in the aggregate are Material, without known conflict
with the rights of others;
(b) to the best knowledge of the Company, no product or
practice of the Company or any Subsidiary infringes in any material
respect any license, permit, franchise, authorization, patent,
copyright, service ▇▇▇▇, trademark, trade name or other right owned by
any other Person; and
(c) to the best knowledge of the Company, there is no Material
violation by any Person of any right of the Company or any of its
Subsidiaries with respect to any patent, copyright, service ▇▇▇▇,
trademark, trade name or other right owned or used by the Company or
any of its Subsidiaries.
5.12 COMPLIANCE WITH ERISA.
(a) The only ERISA retirement plan maintained by the Company
is a defined contribution profit-sharing plan with a Code ss.401(k)
feature (the "RETIREMENT PLAN"). The Retirement Plan meets the
requirements for qualification under Code ss.401 and the related trust
is exempt from taxation under Code ss.501(a). The Internal Revenue
Service has issued a favorable determination letter with respect to the
tax qualified status of the Retirement Plan and has not taken any
action to revoke such letter. The Company has performed all material
obligations required to be performed by it under the Retirement Plan
and is in substantial compliance with the requirements prescribed by
any and all statutes or regulations applicable to the Retirement Plan.
There are no suits or material disputed claims pending against the
Retirement Plan. As of the date of Closing, the Company has
THE O'GARA COMPANY NOTE PURCHASE AGREEMENT
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made all required employer contributions (salary deferrals, matching
contributions or other employer contributions) to the Retirement Plan.
(b) Neither the Company nor any ERISA Affiliate has ever been
an employer required to contribute to any Multiemployer Plan.
(c) The expected postretirement benefit obligation (determined
as of the last day of the Company's most recently ended fiscal year in
accordance with Financial Accounting Standards Board Statement No. 106,
without regard to liabilities attributable to continuation coverage
mandated by section 4980B of the Code) of the Company and its
Subsidiaries is not Material.
(d) The execution and delivery of the Financing Documents and
the issuance and sale of the Notes hereunder will not involve any
transaction that is subject to the prohibitions of section 406 of ERISA
or in connection with which a tax could be imposed pursuant to section
4975(c)(1)(A)-(D) of the Code. The representation by the Company in the
first sentence of this Section 5.12(d) is made in reliance upon and
subject to the accuracy of your representation in Section 6.2 as to the
sources of the funds used to pay the purchase price of the Notes to be
purchased by you.
(e) Schedule 5.12 sets forth all ERISA Affiliates and all
"employee benefit plans" maintained by the Company (or any "affiliate"
thereof) or in respect of which the Notes could constitute an "employer
security" ("EMPLOYEE BENEFIT PLAN" has the meaning specified in section
3 of ERISA, "AFFILIATE" has the meaning specified in section 407(d) of
ERISA and section V of the Department of Labor Prohibited Transaction
Exemption 95-60 (60 FR 35925, July 12, 1995) and "EMPLOYER SECURITY"
has the meaning specified in section 407(d) of ERISA).
5.13 PRIVATE OFFERING BY THE COMPANY.
Neither the Company nor anyone acting on its behalf has offered the
Notes or any similar Securities for sale to, or solicited any offer to buy any
of the same from, or otherwise approached or negotiated in respect thereof with,
any Person other than you, the Other Purchasers and not more than 46 other
Institutional Investors, each of which has been offered the Notes at a private
sale for investment. Neither the Company nor anyone acting on its behalf has
taken, or will take, any action that would subject the issuance or sale of the
Notes to the registration requirements of section 5 of the Securities Act.
5.14 USE OF PROCEEDS; MARGIN REGULATIONS.
The Company will apply the proceeds of the sale of the Notes as set
forth in Schedule 5.14. No part of the proceeds from the sale of the Notes
hereunder will be used, directly or indirectly, for the purpose of buying or
carrying any margin stock within the meaning of Regulation G of the
THE O'GARA COMPANY NOTE PURCHASE AGREEMENT
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Board of Governors of the Federal Reserve System (12 CFR 207), or for the
purpose of buying or carrying or trading in any Securities under such
circumstances as to involve the Company in a violation of Regulation X of said
Board (12 CFR 224) or to involve any broker or dealer in a violation of
Regulation T of said Board (12 CFR 220). Margin stock does not constitute more
than 1% of Consolidated Assets and the Company does not have any present
intention that margin stock will constitute more than 1% of Consolidated Assets.
As used in this Section, the term "MARGIN STOCK" shall have the meaning assigned
to it in said Regulation G.
5.15 EXISTING DEBT; FUTURE LIENS.
(a) Except as described therein, Schedule 5.15 sets forth a
complete and correct list of all outstanding Debt of the Company and
its Subsidiaries as of the date of the Closing, after giving effect to
the transactions to occur on such date (and specifying, as to each
issue of Debt, the collateral, if any, securing such Debt), since which
date there has been no Material change in the amounts, interest rates,
sinking funds, instalment payments or maturities of the Debt of the
Company or its Subsidiaries. Neither the Company nor any Subsidiary is
in default, and no waiver of default is currently in effect, in the
payment of any principal or interest on any Debt of the Company or such
Subsidiary and no event or condition exists with respect to any Debt of
the Company or any Subsidiary that would permit (or that with notice or
the lapse of time, or both, would permit) one or more Persons to cause
such Debt to become due and payable before its stated maturity or
before its regularly scheduled dates of payment.
(b) Except as disclosed in Schedule 5.15, neither the Company
nor any Subsidiary has agreed or consented to cause or permit in the
future (upon the happening of a contingency or otherwise) any of its
property, whether now owned or hereafter acquired, to be subject to a
Lien not permitted by Section 10.6(a).
5.16 FOREIGN ASSETS CONTROL REGULATIONS, ETC.
Neither the sale of the Notes by the Company hereunder nor its use of
the proceeds thereof will violate the Trading with the Enemy Act, as amended, or
any of the foreign assets control regulations of the United States Treasury
Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling
legislation or executive order relating thereto.
5.17 STATUS UNDER CERTAIN STATUTES.
Neither the Company nor any Subsidiary is subject to regulation under
the Investment Company Act of 1940, as amended, the Public Utility Holding
Company Act of 1935, as amended, the Transportation Acts (49 U.S.C.), as
amended, or the Federal Power Act, as amended.
5.18 ENVIRONMENTAL MATTERS.
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Neither the Company nor any Subsidiary has knowledge of any claim, or
has received any notice of any claim, or of any proceeding which has been
instituted raising any claim, against the Company or any of its Subsidiaries or
any of their respective real properties now or formerly owned, leased or
operated by any of them or other assets, alleging any damage to the environment
or violation of any Environmental Laws, except, in each case, such as could not
reasonably be expected to result in a Material Adverse Effect. Except as
otherwise disclosed to you in writing,
(a) neither the Company nor any Subsidiary has knowledge of
any facts which would give rise to any claim, public or private, of
violation of Environmental Laws or damage to the environment emanating
from, occurring on or in any way related to real properties now or
formerly owned, leased or operated by any of them or to other assets or
their use, except, in each case, such as could not reasonably be
expected to result in a Material Adverse Effect;
(b) neither the Company nor any of its Subsidiaries has stored
any Hazardous Materials on real properties now or formerly owned,
leased or operated by any of them and has not disposed of any Hazardous
Materials in a manner contrary to any Environmental Laws in each case
in any manner that could reasonably be expected to result in a Material
Adverse Effect; and
(c) all buildings on all real properties now owned, leased or
operated by the Company or any of its Subsidiaries are in compliance
with applicable Environmental Laws, except where failure to comply
could not reasonably be expected to result in a Material Adverse
Effect.
6. REPRESENTATIONS OF THE PURCHASER.
6.1 PURCHASE FOR INVESTMENT.
You represent that you are purchasing the Notes for your own account or
for one or more separate accounts maintained by you or for the account of one or
more pension or trust funds and not with a view to the distribution thereof,
provided that the disposition of your or their property shall at all times be
within your or their control. You understand that the Notes have not been
registered under the Securities Act and may be resold only if registered
pursuant to the provisions of the Securities Act or if an exemption from
registration is available, except under circumstances where neither such
registration nor such an exemption is required by law, and that the Company is
not required to register the Notes.
6.2 SOURCE OF FUNDS.
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You represent that at least one of the following statements is an
accurate representation as to each source of funds (a "SOURCE") to be used by
you to pay the purchase price of the Notes to be purchased by you hereunder:
(a) the Source is an "insurance company general account" as
defined in Department of Labor Prohibited Transaction Exemption 95-60
(60 FR 35925, July 12, 1995) and in respect thereof you represent that
there is no "employee benefit plan" (as defined in section 3(3) of
ERISA and section 4975(e)(1) of the Code, treating as a single plan all
plans maintained by the same employer or employee organization or
affiliate thereof) with respect to which the amount of the general
account reserves and liabilities of all contracts held by or on behalf
of such plan exceed 10% of the total reserves and liabilities of such
general account (exclusive of separate account liabilities) plus
surplus, as set forth in the NAIC Annual Statement filed with your
state of domicile and that such acquisition is eligible for and
satisfies the other requirements of such exemption; or
(b) if you are an insurance company, the Source does not
include assets allocated to any separate account maintained by you in
which any employee benefit plan (or its related trust) has any
interest, other than a separate account that is maintained solely in
connection with your fixed contractual obligations under which the
amounts payable, or credited, to such plan and to any participant or
beneficiary of such plan (including any annuitant) are not affected in
any manner by the investment performance of the separate account; or
(c) the Source is either
(i) an insurance company pooled separate account,
within the meaning of Prohibited Transaction Exemption ("PTE")
▇▇-▇ (▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇), ▇▇
(▇▇) a bank collective investment fund, within the
meaning of the PTE 91-38 (issued July 12, 1991) and, except as
you have disclosed to the Company in writing pursuant to this
clause (c), no employee benefit plan or group of plans
maintained by the same employer or employee organization
beneficially owns more than 10% of all assets allocated to
such pooled separate account or collective investment fund; or
(d) the Source constitutes assets of an "investment fund"
(within the meaning of Part V of the QPAM Exemption) managed by a
"qualified professional asset manager" or "QPAM" (within the meaning of
Part V of the QPAM Exemption), no employee benefit plan's assets that
are included in such investment fund, when combined with the assets of
all other employee benefit plans established or maintained by the same
employer or by an affiliate (within the meaning of section V(c)(1) of
the QPAM Exemption) of such employer or by the same employee
organization and managed by such QPAM, exceed 20% of the total client
assets managed by such QPAM, the conditions of Part I(c) and (g) of the
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QPAM Exemption are satisfied, neither the QPAM nor a Person controlling
or controlled by the QPAM (applying the definition of "control" in
Section V(e) of the QPAM Exemption) owns a 5% or more interest in the
Company and
(i) the identity of such QPAM and
(ii) the names of all employee benefit plans whose
assets are included in such investment fund
have been disclosed to the Company in writing pursuant to this clause
(d); or
(e) the Source is a governmental plan; or
(f) the Source is one or more employee benefit plans, or a
separate account or trust fund comprised of one or more employee
benefit plans, each of which has been identified to the Company in
writing pursuant to this paragraph (f); or
(g) the Source does not include assets of any employee benefit
plan, other than a plan exempt from the coverage of ERISA.
As used in this Section 6.2, the terms "EMPLOYEE BENEFIT PLAN", "GOVERNMENTAL
PLAN" and "SEPARATE ACCOUNT" shall have the respective meanings assigned to such
terms in Section 3 of ERISA.
7. INFORMATION AS TO COMPANY.
7.1 FINANCIAL AND BUSINESS INFORMATION.
The Company shall deliver to each holder of Notes that is an
Institutional Investor:
(a) QUARTERLY STATEMENTS -- within 60 days after the end of
each quarterly fiscal period in each fiscal year of the Company (other
than the last quarterly fiscal period of each such fiscal year),
duplicate copies of,
(i) a consolidated balance sheet of the Company and
its Subsidiaries as at the end of such quarter, and
(ii) consolidated statements of operations and cash
flows of the Company and its Subsidiaries for such quarter and
(in the case of the second and third quarters) for the portion
of the fiscal year ending with such quarter,
setting forth in each case in comparative form the figures for the
corresponding periods in the previous fiscal year, all in reasonable
detail, prepared in accordance with GAAP applicable
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to quarterly financial statements generally, and certified by a Senior
Financial Officer as fairly presenting, in all material respects, the
consolidated financial position of the companies being reported on and
their consolidated results of operations and cash flows, subject to
changes resulting from year-end adjustments, provided that delivery
within the time period specified above of copies of the Company's
Quarterly Report on Form 10-Q prepared in compliance with the
requirements therefor and filed with the Securities and Exchange
Commission shall be deemed to satisfy the requirements of this Section
7.1(a);
(b) ANNUAL STATEMENTS -- within 105 days after the end of each
fiscal year of the Company, duplicate copies of,
(i) a consolidated balance sheet of the Company and
its Subsidiaries as at the end of such year, and
(ii) consolidated statements of operations,
shareholders' equity and cash flows of the Company and its
Subsidiaries for such year,
setting forth in each case in comparative form the figures for the
previous fiscal year, all in reasonable detail, prepared in accordance
with GAAP, and accompanied by
(A) an opinion thereon of independent certified
public accountants of recognized national standing, which
opinion shall state that such financial statements present
fairly, in all material respects, the consolidated financial
position of the companies being reported upon and their
consolidated results of operations and cash flows and have
been prepared in conformity with GAAP, and that the
examination of such accountants in connection with such
financial statements has been made in accordance with
generally accepted auditing standards, and that such audit
provides a reasonable basis for such opinion in the
circumstances, and
(B) a certificate of such accountants stating that
they have reviewed this Agreement and stating further whether,
in making their audit, they have become aware of any condition
or event that then constitutes a Default or an Event of
Default, and, if they are aware that any such condition or
event then exists, specifying the nature and period of the
existence thereof (it being understood that such accountants
shall not be liable, directly or indirectly, for any failure
to obtain knowledge of any Default or Event of Default unless
such accountants should have obtained knowledge thereof in
making an audit in accordance with generally accepted auditing
standards or did not make such an audit),
provided that the delivery within the time period specified above of
the Company's Annual Report on Form 10-K for such fiscal year prepared
in accordance with the requirements therefor and filed with the
Securities and Exchange Commission, together with the
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accountants' certificate described in clause (B) above, shall be deemed
to satisfy the requirements of this Section (b);
(c) SEC AND OTHER REPORTS -- promptly upon their becoming
available, one copy of (i) each financial statement, report (including,
without limitation, the Company's annual report to shareholders, if
any, prepared pursuant to Rule 14a-3 under the Exchange Act), notice or
proxy statement sent by the Company or any Subsidiary to public
securities holders generally, and (ii) each regular or periodic report,
each registration statement (without exhibits except as expressly
requested by such holder), and each prospectus and all amendments
thereto filed by the Company or any Subsidiary with the Securities and
Exchange Commission and of all press releases and other statements made
available generally by the Company or any Subsidiary to the public
concerning developments that are Material (it being understood that
such press releases and other statements may be delivered by telecopier
only);
(d) NOTICE OF DEFAULT OR EVENT OF DEFAULT -- promptly, and in
any event within five days after a Responsible Officer becoming aware
of the existence of any Default or Event of Default or that any Person
has given any notice or taken any action with respect to a claimed
default hereunder or that any Person has given any notice or taken any
action with respect to a claimed default of the type referred to in
Section 11(f), a written notice specifying the nature and period of
existence thereof and what action the Company is taking or proposes to
take with respect thereto;
(e) ERISA MATTERS -- promptly, and in any event within five
days after a Responsible Officer becoming aware of any of the
following, a written notice setting forth the nature thereof and the
action, if any, that the Company or an ERISA Affiliate proposes to take
with respect thereto:
(i) with respect to any Plan, any reportable event,
as defined in section 4043(b) of ERISA and the regulations
thereunder, for which notice thereof has not been waived
pursuant to such regulations as in effect on the date of the
Closing; or
(ii) the taking by the PBGC of steps to institute, or
the threatening by the PBGC of the institution of, proceedings
under section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Plan, or the
receipt by the Company or any ERISA Affiliate of a notice from
a Multiemployer Plan that such action has been taken by the
PBGC with respect to such Multiemployer Plan; or
(iii) any event, transaction or condition that could
result in the incurrence of any liability by the Company or
any ERISA Affiliate pursuant to Title I or IV of ERISA or the
penalty or excise tax provisions of the Code relating to
employee
THE O'GARA COMPANY NOTE PURCHASE AGREEMENT
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benefit plans, or in the imposition of any Lien on any of the
rights, properties or assets of the Company or any ERISA
Affiliate pursuant to Title I or IV of ERISA or such penalty
or excise tax provisions, if such liability or Lien, taken
together with any other such liabilities or Liens then
existing, could reasonably be expected to have a Material
Adverse Effect;
(f) NOTICES FROM GOVERNMENTAL AUTHORITY -- promptly, and in
any event within 30 days of receipt thereof, copies of any notice to
the Company or any Subsidiary from any Federal or state Governmental
Authority relating to any order, ruling, statute or other law or
regulation that could reasonably be expected to have a Material Adverse
Effect;
(g) ACTIONS, PROCEEDINGS -- promptly after a Responsible
Officer becomes aware of the commencement thereof, notice of any action
or proceeding relating to the Company or any Subsidiary in any court or
before any Governmental Authority or arbitration board or tribunal as
to which there is a reasonable possibility of an adverse determination
and that, if adversely determined, could reasonably be expected to have
a Material Adverse Effect; and
(h) REQUESTED INFORMATION -- with reasonable promptness, such
other data and information relating to the business, operations,
affairs, financial condition, assets or properties of the Company or
any of its Subsidiaries or relating to the ability of the Obligors to
perform their obligations under the Financing Documents as from time to
time may be reasonably requested by any such holder of Notes, or such
information regarding the Company required to satisfy the requirements
of 17 C.F.R. section 230.144A, as amended from time to time, in
connection with any contemplated transfer of the Notes.
7.2 OFFICER'S CERTIFICATE.
Each set of financial statements delivered to a holder of Notes
pursuant to Section (a) or Section (b) hereof shall be accompanied by a
certificate of a Senior Financial Officer (executed in his capacity as an
officer of the Company, and not personally) 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 Sections 10.3 through 10.6,
inclusive and Sections 10.8 through 10.10, inclusive, during the
quarterly or annual period covered by the statements then being
furnished (including with respect to each such Section, where
applicable, the calculations of the maximum or minimum amount, ratio or
percentage, as the case may be, permissible under the terms of such
Sections, and the calculation of the amount, ratio or percentage then
in existence); and
(b) EVENT OF DEFAULT -- a statement that such officer has
reviewed the relevant terms of the Financing Documents and has made, or
caused to be made, under his or her
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supervision, a review of the transactions and conditions of the Company
and its Subsidiaries from the beginning of the quarterly or annual
period covered by the statements then being furnished to the date of
the certificate and that such review has not disclosed the existence
during such period of any condition or event that constitutes a Default
or an Event of Default or, if any such condition or event existed or
exists (including, without limitation, any such event or condition
resulting from the failure of the Company or any Subsidiary to comply
with any Environmental Law), specifying the nature and period of
existence thereof and what action the Company shall have taken or
proposes to take with respect thereto.
7.3 INSPECTION.
The Company shall permit the representatives of each holder of Notes
that is an Institutional Investor:
(a) NO DEFAULT -- if no Default or Event of Default then
exists, at the expense of such holder and upon reasonable prior notice
to the Company, to visit the principal executive office of the Company,
to discuss the affairs, finances and accounts of the Company and its
Subsidiaries with the Company's officers, and (with the consent of the
Company, which consent will not be unreasonably withheld) its
independent public accountants, and (with the consent of the Company,
which consent will not be unreasonably withheld) to visit the other
offices and properties of the Company and each Subsidiary, all at such
reasonable times and as often as may be reasonably requested in
writing; and
(b) DEFAULT -- if a Default or Event of Default then exists,
at the expense of the Company, to visit and inspect any of the offices
or properties of the Company or any Subsidiary, to examine all their
respective books of account, records, reports and other papers, to make
copies and extracts therefrom, and to discuss their respective affairs,
finances and accounts with their respective officers and independent
public accountants (and by this provision the Company authorizes said
accountants to discuss the affairs, finances and accounts of the
Company and its Subsidiaries), all at such times and as often as may be
requested.
8. PAYMENT OF THE NOTES.
8.1 OPTIONAL PREPAYMENTS WITH MAKE-WHOLE AMOUNT.
The Company may, at its option, upon notice as provided below, prepay
at any time all, or from time to time any part of, the Notes (but if in part, in
an amount not less than $1,000,000 or such lesser amount as shall then be
outstanding), at 100% of the principal amount so prepaid, plus the Make-Whole
Amount determined for the prepayment date with respect to such principal amount.
The Company will give each holder of Notes written notice of each optional
prepayment
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under this Section 8.1 not less than 30 days and not more than 60 days prior to
the date fixed for such prepayment. Each such notice shall specify such
prepayment date, the aggregate principal amount of the Notes to be prepaid on
such date, the principal amount of each Note held by such holder to be prepaid
(determined in accordance with Section 8.2), and the interest to be paid on the
prepayment date with respect to such principal amount being prepaid, and shall
be accompanied by a certificate of a Senior Financial Officer as to the
estimated Make- Whole Amount due in connection with such prepayment (calculated
as if the date of such notice were the date of the prepayment), setting forth
the details of such computation. Two Business Days prior to such prepayment, the
Company shall deliver to each holder of Notes a certificate of a Senior
Financial Officer specifying the calculation of such Make-Whole Amount as of the
specified prepayment date.
8.2 ALLOCATION OF PARTIAL PREPAYMENTS.
In the case of each partial prepayment of the Notes, the principal
amount of the Notes to be prepaid shall be allocated among all of the Notes at
the time outstanding in proportion, as nearly as practicable, to the respective
unpaid principal amounts thereof not theretofore called for prepayment.
8.3 MATURITY; SURRENDER, ETC.
In the case of each prepayment of Notes pursuant to this Section 8, the
principal amount of each Note to be prepaid shall mature and become due and
payable on the date fixed for such prepayment, together with interest on such
principal amount accrued to such date and the applicable Make-Whole Amount, if
any. From and after such date, unless the Company shall fail to pay such
principal amount when so due and payable, together with the interest and Make-
Whole Amount, if any, as aforesaid, interest on such principal amount shall
cease to accrue. Any Note paid or prepaid in full shall be surrendered to the
Company and cancelled and shall not be reissued, and no Note shall be issued in
lieu of any prepaid principal amount of any Note.
8.4 NO OTHER OPTIONAL PREPAYMENTS OR PURCHASE OF NOTES.
The Company will not, and will not permit any Affiliate to, prepay
(whether directly or indirectly by purchase, redemption or other acquisition)
any of the outstanding Notes except upon the payment or prepayment of the Notes
in accordance with the terms of this Section 8. The Company will promptly cancel
all Notes acquired by it or any Affiliate pursuant to any payment, prepayment or
purchase of Notes pursuant to any provision of this Section 8 and no Notes may
be issued in substitution or exchange for any such Notes.
8.5 MAKE-WHOLE AMOUNT.
The term "MAKE-WHOLE AMOUNT" means, with respect to any Note, an amount
equal to the excess, if any, of the Discounted Value of the Remaining Scheduled
Payments with respect to the
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Called Principal of such Note over the amount of such Called Principal, provided
that the Make-Whole Amount may in no event be less than zero. For the purposes
of determining the Make-Whole Amount, the following terms have the following
meanings:
"CALLED PRINCIPAL" means, with respect to any Note, the
principal of such Note that is to be prepaid pursuant to Section 8.1 or
has become or is declared to be immediately due and payable pursuant to
Section 12.1, as the context requires.
"DISCOUNTED VALUE" means, with respect to the Called Principal
of any Note, the amount obtained by discounting all Remaining Scheduled
Payments with respect to such Called Principal from their respective
scheduled due dates to the Settlement Date with respect to such Called
Principal, in accordance with accepted financial practice and at a
discount factor (applied on the same periodic basis as that on which
interest on the Notes is payable) equal to the Reinvestment Yield with
respect to such Called Principal.
"REINVESTMENT YIELD" means, with respect to the Called
Principal of any Note, 0.50% over the yield to maturity implied by (a)
the yields reported, as of 10:00 A.M. (New York City time) on the
second Business Day preceding the Settlement Date with respect to such
Called Principal, on the display designated as "Page 678" on the
Telerate Access Service (or such other display as may replace Page 678
on the Telerate Access Service) for actively traded U.S. Treasury
securities having a maturity equal to the remaining life to maturity of
such Called Principal as of such Settlement Date, or (b) if such yields
are not reported as of such time or the yields reported as of such time
are not ascertainable, the Treasury Constant Maturity Series Yields
reported, for the latest day for which such yields have been so
reported as of the second Business Day preceding the Settlement Date
with respect to such Called Principal, in Federal Reserve Statistical
Release H.15 (519) (or any comparable successor publication) for
actively traded U.S. Treasury securities having a constant maturity
equal to the remaining life to maturity of such Called Principal as of
such Settlement Date. Such implied yield will be determined, if
necessary, by (i) converting U.S. Treasury ▇▇▇▇ quotations to
bond-equivalent yields in accordance with accepted financial practice
and (ii) interpolating linearly between (1) the actively traded U.S.
Treasury security with the duration closest to and greater than the
remaining life to maturity and (2) the actively traded U.S. Treasury
security with the duration closest to and less than the remaining life
to maturity.
"REMAINING SCHEDULED PAYMENTS" means, with respect to the
Called Principal of any Note, all payments of such Called Principal and
interest thereon that would be due after the Settlement Date with
respect to such Called Principal if no payment of such Called Principal
were made prior to its scheduled due date, provided that if such
Settlement Date is not a date on which interest payments are due to be
made under the terms of the Notes, then the amount of the next
succeeding scheduled interest payment will be reduced by the amount of
interest accrued to such Settlement Date and required to be paid on
such Settlement Date pursuant to Section 8.1 or Section 12.1.
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"SETTLEMENT DATE" means, with respect to the Called Principal
of any Note, the date on which such Called Principal is to be prepaid
pursuant to Section 8.1 or has become or is declared to be immediately
due and payable pursuant to Section 12.1, as the context requires.
9. AFFIRMATIVE COVENANTS.
The Company covenants that so long as any of the Notes are outstanding:
9.1 COMPLIANCE WITH LAW.
The Company will, and will cause each of its Subsidiaries to, comply
with all laws, ordinances or governmental rules or regulations to which each of
them is subject, including, without limitation, Environmental Laws, and will
obtain and maintain in effect all licenses, certificates, permits, franchises
and other governmental authorizations necessary to the ownership of their
respective properties or to the conduct of their respective businesses, in each
case to the extent necessary to ensure that non-compliance with such laws,
ordinances or governmental rules or regulations or failures to obtain or
maintain in effect such licenses, certificates, permits, franchises and other
governmental authorizations could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
9.2 INSURANCE.
The Company will, and will cause each of its Subsidiaries to, maintain,
with financially sound and reputable insurers, insurance with respect to their
respective properties and businesses against such casualties and contingencies,
of such types, on such terms and in such amounts (including deductibles,
co-insurance and self-insurance, if adequate reserves are maintained with
respect thereto) as is customary in the case of entities of established
reputations engaged in the same or a similar business and similarly situated.
9.3 MAINTENANCE OF PROPERTIES.
The Company will, and will cause each of its Subsidiaries to, maintain
and keep, or cause to be maintained and kept, their respective properties in
good repair, working order and condition (other than ordinary wear and tear), so
that the business carried on in connection therewith may be properly conducted
at all times, provided that this Section 9.3 shall not prevent the Company or
any Subsidiary from discontinuing the operation and the maintenance of any of
its properties if such discontinuance is desirable in the conduct of its
business and the Company has concluded that such discontinuance could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
9.4 PAYMENT OF TAXES AND CLAIMS.
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The Company will, and will cause each of its Subsidiaries to,
(a) file all tax returns required to be filed in any
jurisdiction and to pay and discharge all taxes shown to be due and
payable on such returns and all other taxes, assessments, governmental
charges, or levies imposed on them or any of their properties, assets,
income or franchises, to the extent such taxes, assessments, charges or
levies have become due and payable and before they have become
delinquent, and
(b) pay all claims or demands of materialmen, mechanics,
carriers, warehousemen, landlords and other like Persons that have
become due and payable that have or might become a Lien on properties
or assets of the Company or any Subsidiary,
provided that neither the Company nor any Subsidiary need pay any such tax,
assessment, claim or demand if (i) the amount, applicability or validity thereof
is contested by the Company or such Subsidiary on a timely basis in good faith
and in appropriate proceedings, and the Company or a Subsidiary has established
adequate reserves therefor in accordance with GAAP on the books of the Company
or such Subsidiary or (ii) the nonpayment of all such taxes, assessments, claims
or demands in the aggregate could not reasonably be expected to have a Material
Adverse Effect.
9.5 CORPORATE EXISTENCE, ETC.
Subject to mergers, consolidations, transfers or leases of assets, and
discontinuation of operations, as permitted by Sections 9.3, 10.7 and 10.8, the
Company will at all times preserve and keep in full force and effect its
corporate existence and the corporate existence of each of its Subsidiaries
(unless merged or liquidated into the Company or a Subsidiary) and all rights
and franchises of the Company and its Subsidiaries unless, in the good faith
judgment of the Company, the termination of or failure to preserve and keep in
full force and effect such corporate existence, right or franchise could not,
individually or in the aggregate, have a Material Adverse Effect.
9.6 MAINTENANCE OF OFFICE.
The Company will maintain an office at the address of the Company as
provided in Section 18 where notices, presentations and demands in respect
hereof and 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.
9.7 PARI PASSU RANKING.
The Company covenants that its obligations under the Notes and the
Agreements do and will at all times rank at least pari passu, without preference
or priority, with all of its other outstanding
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Senior Debt (except the priority attributable to any such other Senior Debt as a
result of having been secured in compliance with the provisions of Section
10.6(a)).
9.8 GUARANTY AGREEMENT.
The Company will cause each Subsidiary that at any time becomes liable
in respect of any Guaranty of any of the obligations under the Loan Agreement or
of any related agreement, instrument or other document after the date of the
Closing to become (simultaneously or prior to becoming liable in respect of such
Guaranty of any of the obligations under the Loan Agreement or such other
related obligations) a Guarantor under the Guaranty Agreement by executing and
delivering to each holder of Notes a Joinder Agreement in the form attached to
the Guaranty Agreement as Annex 2. Each such Joinder Agreement shall be
accompanied by copies of the constitutive documents of such Subsidiary and
corporate resolutions (or equivalent) authorizing such transaction, in each case
certified as true and correct by a Responsible Officer of the Company and an
officer of such Subsidiary.
10. NEGATIVE COVENANTS.
The Company covenants that so long as any of the Notes are outstanding:
10.1 TRANSACTIONS WITH AFFILIATES.
The Company will not, and will not permit any of its Subsidiaries to,
enter into directly or indirectly any transaction or group of related
transactions (including, without limitation, the purchase, lease, sale or
exchange of properties of any kind or the rendering of any service) with any
Affiliate (other than the Company or another Subsidiary), except in the ordinary
course and pursuant to the reasonable requirements of the Company's or such
Subsidiary's business and upon fair and reasonable terms no less favorable to
the Company or such Subsidiary than would be obtainable in a comparable
arm's-length transaction with a Person not an Affiliate.
10.2 LINE OF BUSINESS.
The Company will not, and will not permit any of its Subsidiaries to,
engage to any substantial extent in any business other than the businesses in
which the Company and its Subsidiaries are engaged on the date of the Closing as
described in the Memorandum and businesses reasonably related thereto or in
furtherance thereof.
10.3 CONSOLIDATED NET WORTH.
The Company will not, at any time, permit Consolidated Net Worth to be
less than the sum of
(a) $19,000,000, plus
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(b) 65% of Consolidated Net Income (but only if a positive
number) for the period beginning on April 1, 1997 and ending at the end
of the then most recently completed fiscal quarter of the Company, plus
(c) 75% of the proceeds received by the Company from any
Equity Offering consummated after the date of Closing (net of all costs
and out-of-pocket expenses in connection therewith, including, without
limitation, placement, underwriting and brokerage fees and expenses).
10.4 FIXED CHARGES COVERAGE RATIO.
The Company will not permit the Fixed Charges Coverage Ratio at any
time during any period specified below to be less than the ratio set forth
opposite such period:
Period Required Ratio
------ --------------
From the date of the Closing through and
including December 31, 1997 1.25 to 1
From January 1, 1998 through and including
December 31, 1998 1.75 to 1
From January 1, 1999 through and including
December 31, 1999 2.00 to 1
From January 1, 2000 and thereafter 2.25 to 1
10.5 LIMITATION ON DEBT.
(a) LIMITATION ON DEBT. The Company will not, and will not
permit any of its Subsidiaries to, directly or indirectly, create,
incur, assume, guarantee, or otherwise become directly or indirectly
liable with respect to, any Debt, unless on the date the Company or
such Subsidiary becomes liable with respect to any such Debt and
immediately after giving effect thereto and the concurrent retirement
of any other Debt,
(i) no Default or Event of Default would exist;
(ii) if the Company shall not have completed a
Substantial Equity Offering at or prior to such time, the
ratio of Consolidated Debt to Consolidated Total
Capitalization would not exceed the then applicable required
ratio set forth opposite the period in which such Debt shall
be incurred, as set forth below:
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Period Required Ratio
------ --------------
From the date of the Closing through and
including December 31, 1998 .725 to 1
From January 1, 1999 through and
including December 31, 1999 .70 to 1
From January 1, 2000 through and
including December 31, 2000 .65 to 1
From January 1, 2001 and thereafter .60 to 1
and
(iii) if the Company shall have completed a
Substantial Equity Offering at or prior to such time, the
ratio of Consolidated Debt to Consolidated Total
Capitalization would not exceed the then applicable required
ratio set forth opposite the period in which such Debt shall
be incurred, as set forth below:
Period Required Ratio
------ --------------
From the date of such Substantial Equity
Offering through and including
December 31, 2000 .65 to 1
From January 1, 2001 and thereafter .60 to 1
(b) LIMITATION ON PRIORITY DEBT. The Company will not, and
will not permit any of its Subsidiaries to, directly or indirectly,
create, incur, assume, guarantee, or otherwise become directly or
indirectly liable with respect to, any Priority Debt, unless on the
date the Company or such Subsidiary becomes liable with respect to any
such Priority Debt and immediately after giving effect thereto and the
concurrent retirement of any other Priority Debt,
(i) no Default or Event of Default would exist; and
(ii) the sum, without duplication, of (x) the
aggregate outstanding principal amount of Debt secured by
Liens permitted by clause (viii) of Section 10.6(a) plus (y)
the aggregate outstanding principal amount of Priority Debt,
would not exceed the greater of
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(A) $11,000,000, and
(B) 20% of Consolidated Net Worth at such time.
(c) TIME OF INCURRENCE OF DEBT. For the purposes of this
Section 10.5, any Person becoming a Subsidiary after the date hereof
shall be deemed to have incurred all of its then outstanding Debt at
the time it becomes a Subsidiary.
10.6 LIENS.
(a) LIMITATION ON LIENS. The Company will not, and will not
permit any of its Subsidiaries to, directly or indirectly create,
incur, assume or permit to exist (upon the happening of a contingency
or otherwise) any Lien on or with respect to any property or asset
(including, without limitation, any document or instrument in respect
of goods or accounts receivable) of the Company or any such Subsidiary,
whether now owned or held or hereafter acquired, or any income or
profits therefrom, or assign or otherwise convey any right to receive
income or profits, except:
(i) 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
they do not in the aggregate materially detract from the value
of such properties or materially impair their use in the
ordinary conduct of the business of the Company and its
Subsidiaries;
(ii) Liens (other than any Lien imposed by ERISA)
incurred or deposits made in the ordinary course of business
(A) in connection with workers'
compensation, unemployment insurance and other types
of social security or retirement benefits,
(B) to secure (or to obtain letters of
credit that secure) the performance of tenders,
statutory obligations, surety bonds, appeal bonds,
bids, leases (other than Capital Leases), performance
bonds, purchase, construction or sales contracts and
other similar obligations, in each case not incurred
or made in connection with the borrowing of money,
the obtaining of advances or credit or the payment of
the deferred purchase price of property, or
(C) to secure progress payments from the
United States of America;
(iii) Liens
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(A) arising from judicial attachments and
judgments,
(B) securing appeal bonds or supersedeas
bonds, or
(C) arising in connection with court
proceedings (including, without limitation, surety
bonds and letters of credit or any other instrument
serving a similar purpose),
provided that (1) the execution or other enforcement of such
Liens is effectively stayed, (2) the claims secured thereby
are being actively contested in good faith and by appropriate
proceedings, and (3) adequate book reserves shall have been
established and maintained with respect thereto in accordance
with GAAP;
(iv) Liens for taxes, assessments or other
governmental charges or levies or the claims or demands of
materialmen, mechanics, carriers, warehousemen, landlords and
other like Persons arising in the ordinary course of business,
which are not yet due and payable or the payment of which is
not at the time required by Section 9.4;
(v) Liens on property or assets of the Company or any
of its Subsidiaries securing Debt owing to the Company or to
any of its Wholly-Owned Subsidiaries;
(vi) any Lien created to secure all or any part of
the purchase price, or to secure Debt incurred or assumed to
pay all or any part of the purchase price or cost of
construction, of property (including, without limitation,
Capital Stock), or any improvement thereon, acquired or
constructed by the Company or a Subsidiary after the date of
the Closing, provided that
(A) any such Lien shall extend solely to the
item or items of such property (or improvement
thereon) so acquired or constructed and, if required
by the terms of the instrument originally creating
such Lien, other property (or improvement thereon)
which is an improvement to or is acquired for
specific use in connection with such acquired or
constructed property (or improvement thereon) or
which is real property being improved by such
acquired or constructed property (or improvement
thereon),
(B) the principal amount of the Debt secured
by any such Lien shall at no time exceed the Fair
Market Value (as determined in good faith by the
board of directors or any two executive officers of
the Company) of such property (or improvement
thereon) at the time of such acquisition or
construction, and
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(C) any such Lien shall be created
contemporaneously with, or within 120 days after, the
acquisition or construction of such property;
(vii) any Lien existing on property of a Person
immediately prior to its being consolidated with or merged
into the Company or a Subsidiary or its becoming a Subsidiary,
or any Lien existing on any property acquired by the Company
or any Subsidiary at the time such property is so acquired
(whether or not the Debt secured thereby shall have been
assumed), provided that (A) no such Lien shall have been
created or assumed in contemplation of such consolidation or
merger or such Person's becoming a Subsidiary or such
acquisition of property, and (B) each such Lien shall extend
solely to the item or items of property so acquired and, if
required by the terms of the instrument originally creating
such Lien, other property which is an improvement to or is
acquired for specific use in connection with such acquired
property;
(viii) Liens existing on the date of this Agreement
and securing Debt of the Company and its Subsidiaries referred
to in Schedule 5.15; and
(ix) Liens securing Debt of the Company or any
Subsidiary not otherwise permitted by clauses (i) through
(viii) of this Section 10.6(a), but only to the extent that
the Debt secured by each such Lien is, at the time of the
incurrence of such Debt, permitted to be incurred under
Section 10.5(a) and Section 10.5(b).
For the purposes of this Section 10.6(a), any Person becoming a
Subsidiary after the date of the Closing shall be deemed to have
incurred all of its then outstanding Liens at the time it becomes a
Subsidiary.
(b) EQUAL AND RATABLE LIEN; EQUITABLE LIEN. If,
notwithstanding the prohibition contained in Section 10.6(a), the
Company shall, or shall permit any of its Subsidiaries to, directly or
indirectly create, incur, assume or permit to exist any Lien securing
Debt for borrowed money, other than those Liens permitted by the
provisions of clauses (i) through (ix) of Section 10.6(a), it will make
or cause to be made effective provision whereby the Notes will be
secured equally and ratably with any and all other obligations thereby
secured, such security to be pursuant to agreements reasonably
satisfactory to the Required Holders and, in any such case, the Notes
shall have the benefit, to the fullest extent that, and with such
priority as, the holders of the Notes may be entitled under applicable
law, of an equitable Lien on such property. Such violation of Section
10.6(a) will constitute an Event of Default, whether or not provision
is made for an equal and ratable Lien pursuant to this Section 10.6(b).
(c) FINANCING STATEMENTS. The Company will not, and will not
permit any of its Subsidiaries 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
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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 foregoing provisions of
this Section 10.6 or to evidence for informational purposes a lessor's
or a consignor's interest in property leased or consigned to the
Company or any such Subsidiary.
10.7 MERGER, CONSOLIDATION, ETC.
The Company will not consolidate or merge with any other Person or
convey, transfer or lease all or substantially all of its assets in a single
transaction or series of transactions to any Person, provided that the foregoing
restriction does not apply to the consolidation or merger of the Company with,
or the conveyance, transfer or lease of all or substantially all of the assets
of the Company in a single transaction or series of transactions to, any Person
so long as:
(a) the successor formed by such consolidation or the survivor
of such merger or the Person that acquires by conveyance, transfer or
lease all or substantially all of the assets of the Company as an
entirety, as the case may be (the "SUCCESSOR CORPORATION"), shall be a
solvent corporation organized and existing under the laws of the United
States of America, any state thereof or the District of Columbia;
(b) if the Company is not the Successor Corporation, such
corporation shall have executed and delivered to each holder of Notes
its assumption of the due and punctual performance and observance of
each covenant and condition of the Financing Documents to which the
Company is a party (pursuant to such agreements and instruments as
shall be reasonably satisfactory to the Required Holders), and the
Company shall have caused to be delivered to each holder of Notes an
opinion of independent counsel referred to in Section 4.4(a) or other
independent counsel reasonably satisfactory to the Required Holders, to
the effect that all agreements or instruments effecting such assumption
are enforceable in accordance with their terms and comply with the
terms hereof; and
(c) immediately prior to and immediately after consummation of
such transaction, and immediately after giving effect thereto, no
Default or Event of Default would exist and the Company would be able
to incur at least $1 of Debt pursuant to Section 10.5(a).
No such conveyance, transfer or lease of all or substantially all of the assets
of the Company shall have the effect of releasing the Company or any Successor
Corporation from its liability under the Financing Documents.
10.8 SALE OF ASSETS, ETC.
Except as permitted under Section 10.7, the Company will not, and will
not permit any of its Subsidiaries to, make any Asset Disposition, unless
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(a) in the good faith opinion of the Company, such Asset
Disposition is in exchange for consideration having a Fair Market Value
at least equal to that of the property exchanged and is in the best
interest of the Company or such Subsidiary; and
(b) (i) immediately prior to and immediately after
consummation of such Asset Disposition, and immediately after
giving effect thereto, no Default or Event of Default would
exist; and
(ii) immediately after consummation of such Asset
Disposition, and immediately after giving effect thereto,
(A) the Disposition Value of all property
that was the subject of an Asset Disposition
permitted by this Section 10.8 during the then
current fiscal year of the Company would not exceed
15% of Consolidated Assets as of the end of the then
most recently ended fiscal year of the Company, and
(B) the Disposition Value of all property
that was the subject of an Asset Disposition
permitted by this Section 10.8 on or after the date
of the Closing would not exceed 30% of Consolidated
Assets as of the end of the then most recently ended
fiscal year of the Company;
provided, however, that if the Company gives prompt written
notice (a "REINVESTMENT NOTICE") to all holders of Notes that,
within 365 days before or after any Transfer, an amount equal
to all or any portion of the Net Proceeds Amount arising
therefrom was, or is intended to be, applied by the Company or
such Subsidiary to a Property Reinvestment Application, then
such Transfer (to the extent of the amounts actually so
applied within such period) shall be deemed not to be an Asset
Disposition as of any date for purposes of determining
compliance by the Company and the Subsidiaries with the
foregoing clauses (A) and (B); and
(iii) the Unapplied Portion of the Net Proceeds
Amount at such time for all Asset Dispositions would not
exceed 30% of Consolidated Assets.
The "Unapplied Portion of the Net Proceeds Amount," with
respect to any Asset Disposition as to which the Company has given a
Reinvestment Notice, means, at any time, the Disposition Value of the
Property subject to such Asset Disposition multiplied by a fraction of
which the numerator is the portion of the Net Proceeds Amount subject
to such Reinvestment Notice which has not been applied to a Property
Reinvestment Application as of such time and the denominator of which
is the entire amount of the portion of the Net Proceeds Amount subject
to such Reinvestment Notice.
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If the Company shall fail to apply an amount equal to the
entire amount of the Net Proceeds Amount subject to the Reinvestment
Notice in respect of such Transfer, to a Property Reinvestment
Application within such 730-day period, the Company shall be deemed to
have consummated an Asset Disposition to which the proviso to clauses
(ii)(A) and (ii)(B) of Section 10.8(b) does not apply in an amount
equal to the Unapplied Portion of the Net Proceeds Amount in respect of
such Asset Disposition. Such deemed Asset Disposition shall be deemed
to have occurred on the date of the original Asset Disposition and the
Company's compliance with this Section 10.8 shall be determined, as of
such date, as if such Unapplied Portion of the Net Proceeds Amount had
not been included in the Reinvestment Notice.
10.9 RESTRICTED PAYMENTS.
(a) LIMITATION. The Company will not, and will not permit any
of its Subsidiaries to, at any time, declare or make, or incur any
liability to declare or make, any Restricted Payment, unless
immediately after giving effect to such action:
(i) the aggregate amount of Restricted Payments of
the Company and its Subsidiaries declared or made during the
period commencing on April 1, 1997 and ending on the date such
Restricted Payment is declared or made, inclusive, would not
exceed the sum of
(A) $3,000,000, plus
(B) 35% of Consolidated Net Income for the
period commencing on April 1, 1997 and ending on the
last day of the then most recently ended fiscal
quarter of the Company (or minus 100% of Consolidated
Net Income for such period if Consolidated Net Income
for such period is a loss), plus
(C) the aggregate amount of Net Proceeds of
Capital Stock in excess of $20,000,000 for the period
commencing on April 1, 1997 and ending on the date
such Restricted Payment is declared or made,
inclusive; and
(ii) no Default or Event of Default would exist.
(b) TIME OF PAYMENT. The Company will not, and will not permit
any of its Subsidiaries to, authorize a Restricted Payment that is not
payable within 60 days of authorization.
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10.10 RESTRICTED INVESTMENTS.
The Company will not, and will not permit any of its Subsidiaries to,
at any time make or permit to exist any Investment, except:
(a) property to be used in the ordinary course of business of
the Company and its Subsidiaries;
(b) current assets arising from the sale of goods and services
in the ordinary course of business of the Company and its Subsidiaries;
(c) Investments in one or more Subsidiaries or in any Person
that concurrently with such Investment becomes a Subsidiary;
(d) Investments existing as of the date of the Closing and
more particularly set forth in Schedule 10.10;
(e) Investments in United States Governmental Securities,
provided that such obligations mature within 365 days from the date of
acquisition thereof;
(f) Investments in Securities issued by Federal Farm Credit
Bank, Federal National Mortgage Association, Federal Home Loan Mortgage
Corp., Federal Home Loan Bank, Student Loan Marketing Association and
Tennessee Valley Authority, provided that such obligations mature
within 365 days from the date of acquisition thereof;
(g) Investments in certificates of deposit, banker's
acceptances or accounts issued or held by an Acceptable Bank, provided
that such obligations mature within 365 days from the date of
acquisition thereof;
(h) Investments in accounts held by a Non-Qualifying Bank,
provided that the amount held in accounts by all Non-Qualifying Banks
for the benefit of the Company or any Subsidiary shall not exceed the
amount of working capital required by the Company or such Subsidiary in
the ordinary course of its business;
(i) Investments in variable rate tax exempt bonds, notes or
funds given either of the two highest ratings by a credit rating agency
of recognized national standing, or if payment thereunder may be made
by drawing on letters of credit issued by Acceptable Banks, so long as
the Investments in such bonds, notes or funds mature within one year of
the date of acquisition thereof;
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(j) Investments in commercial paper given either of the two
highest ratings by a credit rating agency of recognized national
standing and maturing not more than 270 days from the date of creation
thereof;
(k) Investments in money market mutual funds that invest
solely in so-called "money market" instruments maturing not more than
one year after the acquisition thereof, which funds have assets in
excess of $500,000,000; and
(l) Investments not otherwise included in the foregoing
clauses (a) to (k), inclusive, of this Section 10.10, provided that at
the time any such Investment is made and immediately after giving
effect thereto, the aggregate amount of all such Investments would not
exceed 15% of Consolidated Net Worth.
Each Subsidiary will be deemed to have made all Investments held by such
Subsidiary immediately after it becomes a Subsidiary.
As used in this Section 10.10:
"ACCEPTABLE BANK" means any bank or trust company (i) which is
organized under the laws of the United States of America, any state
thereof, the United Kingdom or France, (ii) which has capital, surplus
and undivided profits aggregating at least $500,000,000 (or the
equivalent in a foreign currency), and (iii) whose long-term unsecured
debt obligations (or the long-term unsecured debt obligations of the
bank holding company owning all of the Capital Stock of such bank or
trust company) shall have been given a rating of "A-" or better by
Standard and Poor's Ratings Group, "A2" or better by ▇▇▇▇▇'▇ Investors
Service, Inc. or an equivalent rating by any other credit rating agency
of recognized national or international standing.
"NON-QUALIFYING BANK" means any bank or trust company that is
not an Acceptable Bank and which has capital, surplus and undivided
profits aggregating at least $100,000,000 (or the equivalent in a
foreign currency).
"UNITED STATES GOVERNMENTAL SECURITY" means any direct
obligation of, or obligation guaranteed by, the United States of
America, or any agency controlled or supervised by or acting as an
instrumentality of the United States of America pursuant to authority
granted by the Congress of the United States of America, so long as
such obligation or guarantee shall have the benefit of the full faith
and credit of the United States of America which shall have been
pledged pursuant to authority granted by the Congress of the United
States of America.
11. EVENTS OF DEFAULT.
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An "EVENT OF DEFAULT" shall exist if any of the following conditions or
events shall occur and be continuing:
(a) the Company defaults in the payment of any principal or
Make-Whole Amount, if any, on any Note when the same becomes due and
payable, whether at maturity or at a date fixed for prepayment or by
declaration or otherwise; or
(b) the Company defaults in the payment of any interest on any
Note for more than five Business Days after the same becomes due and
payable; or
(c) the Company defaults in the performance of or compliance
with any term contained in any of Sections 10.3 through 10.10,
inclusive, or Section 7.1(d); or
(d) any Obligor defaults in the performance of or compliance
with any term contained in any Financing Document (other than those
referred to in paragraphs (a), (b) and (c) of this Section 11) and such
default is not remedied within 30 days after the earlier of (i) a
Responsible Officer obtaining actual knowledge of such default and (ii)
the Company receiving written notice of such default from any holder of
a Note; or
(e) any representation or warranty made in writing by or on
behalf of any Obligor or by any officer of such Obligor in any
Financing Document or in any writing furnished in connection with the
transactions contemplated hereby proves to have been false or incorrect
in any material respect on the date as of which made; or
(f) (i) the Company or any Subsidiary is in default (as
principal or as guarantor or other surety) in the payment of
any principal of or premium or make-whole amount or interest
on any Debt (other than Debt under this Agreement and the
Notes) beyond any period of grace provided with respect
thereto, that individually or together with such other Debt as
to which any such failure exists has an aggregate outstanding
principal amount of at least $1,000,000, or
(ii) the Company or any Subsidiary is in default in
the performance of or compliance with any term of any evidence
of any Debt (other than Debt under this Agreement and the
Notes) that individually, or together with such other Debt as
to which any such failure exists, has an aggregate outstanding
principal amount of at least $1,000,000, or of any mortgage,
indenture or other agreement relating thereto or any other
condition exists, and as a consequence of such default or
condition such Debt has become, or has been declared (or one
or more Persons are entitled to declare such Debt to be), due
and payable before its stated maturity or before its regularly
scheduled dates of payment, or
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(iii) as a consequence of the occurrence or
continuation of any event or condition (other than the right
of the holder of Debt to convert such Debt into equity
interests or the Permitted Put Right of a holder of an
industrial revenue bond),
(A) the Company or any Subsidiary has become
obligated to purchase or repay Debt before its
regular maturity or before its regularly scheduled
dates of payment in an aggregate outstanding
principal amount of at least $1,000,000, or
(B) one or more Persons have the right to
require the Company or any Subsidiary so to purchase
or repay such Debt; or
(g) the Company or any Subsidiary (i) is generally not paying,
or admits in writing its inability to pay, its debts as they become
due, (ii) files, or consents by answer or otherwise to the filing
against it of, a petition for relief or reorganization or arrangement
or any other petition in bankruptcy, for liquidation or to take
advantage of any bankruptcy, insolvency, reorganization, moratorium or
other similar law of any jurisdiction, (iii) makes an assignment for
the benefit of its creditors, (iv) consents to the appointment of a
custodian, receiver, trustee or other officer with similar powers with
respect to it or with respect to any substantial part of its property,
(v) is adjudicated as insolvent or to be liquidated, or (vi) takes
corporate action for the purpose of any of the foregoing; or
(h) a court or governmental authority of competent
jurisdiction enters an order appointing, without consent by the Company
or any Subsidiary, a custodian, receiver, trustee or other officer with
similar powers with respect to the Company or any Subsidiary or with
respect to any substantial part of the property of the Company or any
Subsidiary, or constituting an order for relief or approving a petition
for relief or reorganization or any other petition in bankruptcy or for
liquidation or to take advantage of any bankruptcy or insolvency law of
any jurisdiction, or ordering the dissolution, winding-up or
liquidation of the Company or any Subsidiary, or any such petition
shall be filed against the Company or any Subsidiary and such petition
shall not be dismissed within 60 days; or
(i) a final judgment or judgments are rendered against one or
more of the Company and its Subsidiaries for the payment of money if
the aggregate amount thereof (less the portion of such judgments which
is covered by insurance so long as the relevant insurer has not
rejected coverage with respect thereto in writing) exceeds $1,000,000
and such judgments are not, within 60 days after entry thereof, bonded,
discharged or stayed pending appeal, or are not discharged within 60
days after the expiration of such stay; or
(j) (i) the Guaranty Agreement shall cease to be in
full force and effect or shall be declared by a court or
governmental authority of competent jurisdiction to be void,
voidable or unenforceable against any Guarantor,
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(ii) the validity or enforceability of the Guaranty
Agreement against any Guarantor shall be contested by such
Guarantor, the Company or any Affiliate, or
(iii) any Guarantor, the Company or any Affiliate
shall deny that such Guarantor has any further liability or
obligation under the Guaranty Agreement; or
(k) if (i) any Plan shall fail to satisfy the minimum funding
standards of ERISA or the Code for any plan year or part
thereof or a waiver of such standards or extension of any
amortization period is sought or granted under section 412 of
the Code,
(ii) a notice of intent to terminate any Plan shall
have been or is reasonably expected to be filed with the PBGC
or the PBGC shall have instituted proceedings under ERISA
section 4042 to terminate or appoint a trustee to administer
any Plan or the PBGC shall have notified the Company or any
ERISA Affiliate that a Plan may become a subject of any such
proceedings,
(iii) the aggregate "amount of unfunded benefit
liabilities" (within the meaning of section 4001(a)(18) of
ERISA) under all Plans, determined in accordance with Title IV
of ERISA, shall exceed $1,000,000,
(iv) the Company or any ERISA Affiliate shall have
incurred or is reasonably expected to incur any liability
pursuant to Title I or IV of ERISA or the penalty or excise
tax provisions of the Code relating to employee benefit plans,
(v) the Company or any ERISA Affiliate withdraws from
any Multiemployer Plan, or
(vi) the Company or any Subsidiary establishes or
amends any employee welfare benefit plan that provides
post-employment welfare benefits in a manner that would
increase the liability of the Company or any Subsidiary
thereunder;
and any such event or events described in clauses (i) through (vi)
above, either individually or together with any other such event or
events, could reasonably be expected to have a Material Adverse Effect.
As used in Section 11(k), the terms "EMPLOYEE BENEFIT PLAN" and "EMPLOYEE
WELFARE BENEFIT PLAN" shall have the respective meanings assigned to such terms
in section 3 of ERISA.
12. REMEDIES ON DEFAULT, ETC.
12.1 ACCELERATION.
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(a) If an Event of Default with respect to the Company
described in clause (g) or clause (h) of Section 11 (other than an
Event of Default described in subclause (i) of clause (g) or described
in subclause (vi) of clause (g) by virtue of the fact that such clause
encompasses subclause (i) of clause (g)) has occurred, all the Notes
then outstanding shall automatically become immediately due and
payable.
(b) If any other Event of Default has occurred and is
continuing, the Required Holders may, by notice or notices to the
Company, declare all the Notes then outstanding to be immediately due
and payable.
(c) If any Event of Default described in clause (a) or clause
(b) of Section 11 has occurred and is continuing, any holder or holders
of Notes at the time outstanding affected by such Event of Default may
at any time, at its or their option, by notice or notices to the
Company, declare all the Notes held by it or them to be immediately due
and payable.
Upon any Notes becoming due and payable under this Section 12.1,
whether automatically or by declaration, such Notes will forthwith mature and
the entire unpaid principal amount of such Notes, plus (x) all accrued and
unpaid interest thereon and (y) except in the case of the Notes becoming due and
payable under Section 12.1(a), the Make-Whole Amount determined in respect of
such principal amount (to the full extent permitted by applicable law), shall
all be immediately due and payable, in each and every case without presentment,
demand, protest or further notice, all of which are hereby waived. The Company
acknowledges, and the parties hereto agree, that each holder of a Note has the
right to maintain its investment in the Notes free from repayment by the Company
(except as herein specifically provided for) and that the provision for payment
of a Make-Whole Amount by the Company in the event that the Notes are prepaid or
are accelerated as a result of an Event of Default, is intended to provide
compensation for the deprivation of such right under such circumstances.
12.2 OTHER REMEDIES.
If any Default or Event of Default has occurred and is continuing, and
irrespective of whether any Notes have become or have been declared immediately
due and payable under Section 12.1, the holder of any Note at the time
outstanding may proceed to protect and enforce the rights of such holder by an
action at law, suit in equity or other appropriate proceeding, whether for the
specific performance of any agreement contained in any Financing Document, or
for an injunction against a violation of any of the terms hereof or thereof, or
in aid of the exercise of any power granted hereby or thereby or by law or
otherwise.
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12.3 RESCISSION.
At any time after any Notes have been declared due and payable pursuant
to clause (b) or clause (c) of Section 12.1, the Required Holders, by written
notice to the Company, may rescind and annul any such declaration and its
consequences if (a) the Company has paid all overdue interest on the Notes, all
principal of and Make-Whole Amount, if any, due and payable on any Notes other
than by reason of such declaration, and all interest on such overdue principal
and Make-Whole Amount, if any, and (to the extent permitted by applicable law)
any overdue interest in respect of the Notes, at the Default Interest Rate, (b)
all Events of Default and Defaults, other than non-payment of amounts that have
become due solely by reason of such declaration, have been cured or have been
waived pursuant to Section 17, and (c) no judgment or decree has been entered
for the payment of any monies due pursuant hereto or to the Notes. No rescission
and annulment under this Section 12.3 will extend to or affect any subsequent
Event of Default or Default or impair any right consequent thereon.
12.4 NO WAIVERS OR ELECTION OF REMEDIES, EXPENSES, ETC.
No course of dealing and no delay on the part of any holder of any Note
in exercising any right, power or remedy shall operate as a waiver thereof or
otherwise prejudice such holder's rights, powers or remedies. No right, power or
remedy conferred by this Agreement or by any other Financing Document upon any
holder thereof shall be exclusive of any other right, power or remedy referred
to herein or therein or now or hereafter available at law, in equity, by statute
or otherwise. Without limiting the obligations of the Company under Section 15,
the Company will pay to the holder of each Note on demand such further amount as
shall be sufficient to cover all costs and expenses of such holder incurred in
any enforcement or collection under this Section 12, including, without
limitation, reasonable attorneys' fees, expenses and disbursements.
13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES.
13.1 REGISTRATION OF NOTES.
The Company shall keep at its principal executive office a register for
the registration and registration of transfers of Notes. The name and address of
each holder of one or more Notes, each transfer thereof and the name and address
of each transferee of one or more Notes shall be registered in such register.
Prior to due presentment for registration of transfer, the Person in whose name
any Note shall be registered shall be deemed and treated as the owner and holder
thereof for all purposes hereof, and the Company shall not be affected by any
notice or knowledge to the contrary. The Company shall give to any holder of a
Note that is an Institutional Investor promptly upon request therefor, a
complete and correct copy of the names and addresses of all registered holders
of Notes.
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13.2 TRANSFER AND EXCHANGE OF NOTES.
Upon surrender of any Note at the principal executive office of the
Company for registration of transfer or exchange (and in the case of a surrender
for registration of transfer, duly endorsed or accompanied by a written
instrument of transfer duly executed by the registered holder of such Note or
his attorney duly authorized in writing and accompanied by the address for
notices of each transferee of such Note or part thereof), the Company shall
execute and deliver, at the Company's expense (except as provided below), one or
more new Notes (as requested by the holder thereof) in exchange therefor, in an
aggregate principal amount equal to the unpaid principal amount of the
surrendered Note. Each such new Note shall be payable to such Person as such
holder may request and shall be substantially in the form of Exhibit 1. Each
such new Note shall be dated and bear interest from the date to which interest
shall have been paid on the surrendered Note or dated the date of the
surrendered Note if no interest shall have been paid thereon. The Company may
require payment of a sum sufficient to cover any stamp tax or governmental
charge imposed in respect of any such transfer of Notes. Notes shall not be
transferred in denominations of less than $100,000, provided that if necessary
to enable the registration of transfer by a holder of its entire holding of
Notes, one Note may be in a denomination of less than $100,000. Any transferee,
by its acceptance of a Note registered in its name (or the name of its nominee),
shall be deemed to have made the representation set forth in Section 6.2.
13.3 REPLACEMENT OF NOTES.
Upon receipt by the Company of evidence reasonably satisfactory to it
of the ownership of and the loss, theft, destruction or mutilation of any Note
(which evidence shall be, in the case of an Institutional Investor, notice from
such Institutional Investor of such ownership and such loss, theft, destruction
or mutilation), and
(a) in the case of loss, theft or destruction, of indemnity
reasonably satisfactory to it (provided that if the holder of such Note
is, or is a nominee for, an original purchaser or a Qualified
Institutional Buyer, such Person's own unsecured agreement of indemnity
shall be deemed to be satisfactory), or
(b) in the case of mutilation, upon surrender and cancellation
thereof,
the Company at its own expense shall execute and deliver, in lieu thereof, a new
Note, dated and bearing interest from the date to which interest shall have been
paid on such lost, stolen, destroyed or mutilated Note or dated the date of such
lost, stolen, destroyed or mutilated Note if no interest shall have been paid
thereon.
14. PAYMENTS ON NOTES.
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14.1 PLACE OF PAYMENT.
Subject to Section 14.2, payments of principal, Make-Whole Amount, if
any, and interest becoming due and payable on the Notes shall be made in
Fairfield, Ohio at the principal office of the Company in such jurisdiction. The
Company may at any time, by notice to each holder of a Note, change the place of
payment of the Notes so long as such place of payment shall be either the
principal office of the Company in such jurisdiction or the principal office of
a bank or trust company in such jurisdiction.
14.2 HOME OFFICE PAYMENT.
So long as you or your nominee shall be the holder of any Note, and
notwithstanding anything contained in Section 14.1 or in such Note to the
contrary, the Company will pay all sums becoming due on such Note for principal,
Make-Whole Amount, if any, and interest by the method and at the address
specified for such purpose below your name in Schedule A, or by such other
method or at such other address as you shall have from time to time specified to
the Company in writing for such purpose, without the presentation or surrender
of such Note or the making of any notation thereon, except that upon written
request of the Company made concurrently with or reasonably promptly after
payment or prepayment in full of any Note, you shall surrender such Note for
cancellation, reasonably promptly after any such request, to the Company at its
principal executive office or at the place of payment most recently designated
by the Company pursuant to Section 14.1. Prior to any sale or other disposition
of any Note held by you or your nominee you will, at your election, either
endorse thereon the amount of principal paid thereon and the last date to which
interest has been paid thereon or surrender such Note to the Company in exchange
for a new Note or Notes pursuant to Section 13.2. The Company will afford the
benefits of this Section 14.2 to any Institutional Investor that is the direct
or indirect transferee of any Note purchased by you under this Agreement and
that has made the same agreement relating to such Note as you have made in this
Section 14.2.
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15. EXPENSES, ETC.
15.1 TRANSACTION EXPENSES.
Whether or not the transactions contemplated by the Financing Documents
are consummated, the Company will pay all costs and expenses (including
reasonable attorneys' fees of a special counsel and, if reasonably required,
local or other counsel) incurred by you and each Other Purchaser or holder of a
Note in connection with such transactions and in connection with any amendments,
waivers or consents under or in respect of any of the Financing Documents
(whether or not such amendment, waiver or consent becomes effective), including,
without limitation: (a) the costs and expenses incurred in enforcing or
defending (or determining whether or how to enforce or defend) any rights under
the Financing Documents or in responding to any subpoena or other legal process
or informal investigative demand issued in connection with the Financing
Documents, or by reason of being a holder of any Note, and (b) the costs and
expenses, including financial advisors' fees, incurred in connection with the
insolvency or bankruptcy of the Company or any Subsidiary or in connection with
any work-out or restructuring of the transactions contemplated hereby and by the
Notes. The Company will pay, and will save you and each other holder of a Note
harmless from, all claims in respect of any fees, costs or expenses if any, of
brokers and finders (other than those retained by you).
15.2 SURVIVAL.
The obligations of the Company under this Section 15 will survive the
payment or transfer of any Note, the enforcement, amendment or waiver of any
provision of this Agreement or any of the other Financing Documents, and the
termination of this Agreement.
16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT.
All representations and warranties contained herein shall survive the
execution and delivery of the Financing Documents, the purchase or transfer by
you of any Note or portion thereof or interest therein and the payment of any
Note, and may be relied upon by any subsequent holder of a Note, regardless of
any investigation made at any time by or on behalf of you or any other holder of
a Note. All statements contained in any certificate or other instrument
delivered by or on behalf of the Company pursuant to the Financing Documents
shall be deemed representations and warranties of the Company under this
Agreement. Subject to the preceding sentence, the Financing Documents embody the
entire agreement and understanding between you and the Company and supersede all
prior agreements and understandings relating to the subject matter hereof.
17. AMENDMENT AND WAIVER.
17.1 REQUIREMENTS.
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This Agreement and the Notes may be amended, and the observance of any
term hereof or of the Notes may be waived (either retroactively or
prospectively), with (and only with) the written consent of the Company and the
Required Holders, except that (a) no amendment or waiver of any of the
provisions of any of Sections 1, 2, 3, 4, 5, 6 and 21, or any defined term (as
it is used therein), will be effective as to you unless consented to by you in
writing, and (b) no such amendment or waiver may, without the written consent of
the holder of each Note at the time outstanding affected thereby, (i) subject to
the provisions of Section 12 relating to acceleration or rescission, change the
amount or time of any prepayment or payment of principal of, or reduce the rate
or change the time of payment or method of computation of interest or of the
Make-Whole Amount on, the Notes, (ii) change the percentage of the principal
amount of the Notes the holders of which are required to consent to any such
amendment or waiver, or (iii) amend any of Sections 8, 11(a), 11(b), 12, 17 and
20.
17.2 SOLICITATION OF HOLDERS OF NOTES.
(a) SOLICITATION. The Company will provide each holder of the
Notes (irrespective of the amount of Notes then owned by it) with
sufficient information, sufficiently far in advance of the date a
decision is required, to enable such holder to make an informed and
considered decision with respect to any proposed amendment, waiver or
consent in respect of any of the provisions hereof or of the Notes. The
Company will deliver executed or true and correct copies of each
amendment, waiver or consent effected pursuant to the provisions of
this Section 17 to each holder of outstanding Notes promptly following
the date on which it is executed and delivered by, or receives the
consent or approval of, the requisite holders of Notes.
(b) PAYMENT. The Company will not directly or indirectly pay
or cause to be paid any remuneration, whether by way of supplemental or
additional interest, fee or otherwise, or grant any security, to any
holder of Notes as consideration for or as an inducement to the
entering into by any holder of Notes of any waiver or amendment of any
of the terms and provisions hereof unless such remuneration is
concurrently paid, or security is concurrently granted, on the same
terms, ratably to each holder of Notes then outstanding even if such
holder did not consent to such waiver or amendment.
17.3 BINDING EFFECT, ETC.
Any amendment or waiver consented to as provided in this Section 17
applies equally to all holders of Notes and is binding upon them and upon each
future holder of any Note and upon the Company without regard to whether such
Note has been marked to indicate such amendment or waiver. No such amendment or
waiver will extend to or affect any obligation, covenant, agreement, Default or
Event of Default not expressly amended or waived or impair any right consequent
thereon. No course of dealing between the Company and the holder of any Note nor
any delay in exercising any rights hereunder or under any Note shall operate as
a waiver of any
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rights of any holder of such Note. As used herein, the term "THIS AGREEMENT" and
references thereto shall mean this Agreement as it may from time to time be
amended or supplemented.
17.4 NOTES HELD BY COMPANY, ETC.
Solely for the purpose of determining whether the holders of the
requisite percentage of the aggregate principal amount of Notes then outstanding
approved or consented to any amendment, waiver or consent to be given under any
of the Financing Documents, or have directed the taking of any action provided
herein or in the Notes to be taken upon the direction of the holders of a
specified percentage of the aggregate principal amount of Notes then
outstanding, Notes directly or indirectly owned by the Company or any of its
Affiliates shall be deemed not to be outstanding.
18. NOTICES.
All notices and communications provided for hereunder shall be in
writing and sent (a) by telecopy if the sender on the same day sends a
confirming copy of such notice by a recognized overnight delivery service
(charges prepaid), or (b) by registered or certified mail with return receipt
requested (postage prepaid), or (c) by a recognized overnight delivery service
(with charges prepaid). Any such notice must be sent:
(i) if to you or your nominee, to you or it at the address
specified for such communications in Schedule A, or at such other
address as you or it shall have specified to the Company in writing,
(ii) if to any other holder of any Note, to such holder at
such address as such other holder shall have specified to the Company
in writing, or
(iii) if to the Company, to the Company at its address set
forth at the beginning hereof to the attention of the Chief Financial
Officer, telecopier: ▇▇▇-▇▇▇-▇▇▇▇, or at such other address as the
Company shall have specified to the holder of each Note in writing.
Notices under this Section 18 will be deemed given only when actually received.
19. REPRODUCTION OF DOCUMENTS.
The Financing Documents and all documents relating thereto, including,
without limitation, (a) consents, waivers and modifications that may hereafter
be executed, (b) documents received by you at the Closing (except the Notes
themselves), and (c) financial statements, certificates and other information
previously or hereafter furnished to you, may be reproduced by you by any
photographic, photostatic, microfilm, microcard, miniature photographic or other
similar process and you may destroy any original document so reproduced. The
Company agrees and stipulates that, to the extent permitted by applicable law,
any such reproduction shall be admissible in evidence as the original itself in
any judicial or administrative proceeding (whether or not the
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original is in existence and whether or not such reproduction was made by you in
the regular course of business) and any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence. This
Section 19 shall not prohibit the Company or any other holder of Notes from
contesting any such reproduction to the same extent that it could contest the
original, or from introducing evidence to demonstrate the inaccuracy of any such
reproduction.
20. CONFIDENTIAL INFORMATION.
For the purposes of this Section 20, "CONFIDENTIAL INFORMATION" means
information delivered to you by or on behalf of the Company or any Subsidiary in
connection with the transactions contemplated by or otherwise pursuant to this
Agreement that is proprietary in nature and that was clearly marked or labeled
or otherwise adequately identified when received by you as being confidential
information of the Company or such Subsidiary, provided that such term does not
include information that
(a) was publicly known or otherwise known to you prior to the
time of such disclosure,
(b) subsequently becomes publicly known through no act or
omission by you or any Person acting on your behalf,
(c) otherwise becomes known to you other than through
disclosure by the Company or any Subsidiary, or
(d) constitutes financial statements delivered to you under
Section 7.1 that are otherwise publicly available.
You will maintain the confidentiality of such Confidential Information in
accordance with procedures adopted by you in good faith to protect confidential
information of third parties delivered to you, provided that you may deliver or
disclose Confidential Information to:
(i) your directors, officers, trustees, employees, agents,
attorneys and affiliates (to the extent such disclosure reasonably
relates to the administration of the investment represented by your
Notes),
(ii) your financial advisors and other professional advisors
who agree to hold confidential the Confidential Information
substantially in accordance with the terms of this Section 20,
(iii) any other holder of any Note,
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(iv) any Institutional Investor to which you sell or offer to
sell such Note or any part thereof or any participation therein (if
such Person has agreed in writing prior to its receipt of such
Confidential Information to be bound by the provisions of this Section
20),
(v) any Person from which you offer to purchase any Security
of the Company (if such Person has agreed in writing prior to its
receipt of such Confidential Information to be bound by the provisions
of this Section 20),
(vi) any federal or state regulatory authority having
jurisdiction over you,
(vii) the National Association of Insurance Commissioners or
any similar organization, or any nationally recognized rating agency
that requires access to information about your investment portfolio, or
(viii) any other Person to which such delivery or disclosure
may be necessary or appropriate
(A) to effect compliance with any law, rule,
regulation or order applicable to you,
(B) in response to any subpoena or other legal
process,
(C) in connection with any litigation to which you
are a party, or
(D) if an Event of Default has occurred and is
continuing, to the extent you may reasonably determine such
delivery and disclosure to be necessary or appropriate in the
enforcement or for the protection of the rights and remedies
under the Financing Documents.
Each holder of a Note, by its acceptance of a Note, will be deemed to have
agreed to be bound by and to be entitled to the benefits of this Section 20 as
though it were a party to this Agreement. On reasonable request by the Company
in connection with the delivery to any holder of a Note of information required
to be delivered to such holder under this Agreement or requested by such holder
(other than a holder that is a party to this Agreement or its nominee), such
holder will enter into an agreement with the Company embodying the provisions of
this Section 20.
21. SUBSTITUTION OF PURCHASER.
You shall have the right to substitute any one of your Affiliates as
the purchaser of the Notes that you have agreed to purchase hereunder, by
written notice to the Company, which notice shall be signed by both you and such
Affiliate, shall contain such Affiliate's agreement to be bound by this
Agreement and shall contain a confirmation by such Affiliate of the accuracy
with respect to it of the representations set forth in Section 6. Upon receipt
of such notice, wherever the word "you"
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is used in this Agreement (other than in this Section 21), such word shall be
deemed to refer to such Affiliate in lieu of you. In the event that such
Affiliate is so substituted as a purchaser hereunder and such Affiliate
thereafter transfers to you all of the Notes then held by such Affiliate, upon
receipt by the Company of notice of such transfer, wherever the word "you" is
used in this Agreement (other than in this Section 21), such word shall no
longer be deemed to refer to such Affiliate, but shall refer to you, and you
shall have all the rights of an original holder of the Notes under this
Agreement.
22. MISCELLANEOUS.
22.1 SUCCESSORS AND ASSIGNS.
All covenants and other agreements contained in this Agreement by or on
behalf of any of the parties hereto bind and inure to the benefit of their
respective successors and assigns (including, without limitation, any subsequent
holder of a Note) whether so expressed or not.
22.2 PAYMENTS DUE ON NON-BUSINESS DAYS; WHEN PAYMENTS DEEMED
RECEIVED.
(a) PAYMENTS DUE ON NON-BUSINESS DAYS. Anything in the
Financing Documents to the contrary notwithstanding, any payment of
principal of or Make-Whole Amount or interest on any Note that is due
on a date other than a Business Day shall be made on the next
succeeding Business Day without including the additional days elapsed
in the computation of the interest payable on such next succeeding
Business Day.
(b) 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 12:00 noon (local time of
such bank).
22.3 SEVERABILITY.
Any provision of this Agreement that is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall (to the full extent permitted by law) not invalidate or
render unenforceable such provision in any other jurisdiction.
22.4 CONSTRUCTION.
Each covenant contained herein shall be construed (absent express
provision to the contrary) as being independent of each other covenant contained
herein, so that compliance with any one covenant shall not (absent such an
express contrary provision) be deemed to excuse compliance with any other
covenant. Where any provision herein refers to action to be taken by any Person,
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or which such Person is prohibited from taking, such provision shall be
applicable whether such action is taken directly or indirectly by such Person.
22.5 COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of
which shall be an original but all of which together shall constitute one
instrument. Each counterpart may consist of a number of copies hereof, each
signed by less than all, but together signed by all, of the parties hereto.
22.6 GOVERNING LAW.
THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND
THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE OF NEW YORK
EXCLUDING CHOICE-OF-LAW PRINCIPLES OF THE LAW OF SUCH STATE THAT WOULD REQUIRE
THE APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN SUCH STATE.
[Remainder of page intentionally blank. Next page is signature page.]
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If you are in agreement with the foregoing, please sign the
form of agreement on the accompanying counterpart of this Agreement and return
it to the Company, whereupon the foregoing shall become a binding agreement
between you and the Company.
Very truly yours,
THE O'GARA COMPANY
By
-------------------------------
Name:
Title:
The foregoing is hereby
agreed to as of the
date thereof.
[PURCHASER]
By
-------------------------
Name:
Title:
THE O'GARA COMPANY NOTE PURCHASE AGREEMENT
55
SCHEDULE A
========================================================================================================================
PURCHASER NAME CONNECTICUT GENERAL LIFE INSURANCE COMPANY
------------------------------------------------------------------------------------------------------------------------
Name in Which Notes are CIG & Co.
Registered
------------------------------------------------------------------------------------------------------------------------
Note Registration Numbers; R-1; $2,318,000 R-5; $805,000
Principal Amounts R-2; $2,414,000 R-6; $710,000
R-3; $1,421,000 R-7; $240,000
R-4; $1,369,000
------------------------------------------------------------------------------------------------------------------------
Payment on Account of Notes
Method Federal Funds Wire Transfer
Account Information Chase NYC/CTR/
BNF=CIGNA Private Placements/AC=9009001802
ABA# ▇▇▇▇▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------------
Accompanying Information THE O'GARA COMPANY; Senior Notes due
May 30, 2004; PPN: 67083U A* 3; [due
Date and application (as among
principal, Make-Whole Amount and
interest) of the payment being made;
[contact name at Company] and
[telephone number]
------------------------------------------------------------------------------------------------------------------------
Address for Notices Related to CIG & Co.
Payments c/o CIGNA Investments, Inc.
Attention: Securities Processing S-309
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
CIG & Co.
c/o CIGNA Investments, Inc.
Attention: Private Securities - S307
Operations Group
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
Chase Manhattan Bank, N.A.
Private Placement Servicing
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: CIGNA Private Placements
Fax: ▇▇▇-▇▇▇-▇▇▇▇/1005
------------------------------------------------------------------------------------------------------------------------
Address for all other Notices CIG & Co.
c/o CIGNA Investments, Inc.
Attention: Private Securities Division - S-307
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
THE O'GARA COMPANY NOTE PURCHASE AGREEMENT
Schedule A-1
56
========================================================================================================================
PURCHASER NAME CONNECTICUT GENERAL LIFE INSURANCE COMPANY
------------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------------
Tax Identification Number ▇▇-▇▇▇▇▇▇▇
========================================================================================================================
PURCHASER NAME LIFE INSURANCE COMPANY OF NORTH AMERICA
------------------------------------------------------------------------------------------------------------------------
Name in Which Note is Registered CIG & Co.
------------------------------------------------------------------------------------------------------------------------
Note Registration Number; R-8; $723,000
Principal Amount
------------------------------------------------------------------------------------------------------------------------
Payment on Account of Note
Method Federal Funds Wire Transfer
Account Information Chase NYC/CTR/
BNF=CIGNA Private Placements/AC=9009001802
ABA# ▇▇▇▇▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------------
Accompanying Information THE O'GARA COMPANY; Senior Notes due
May 30, 2004; PPN: 67083U A* 3; [due
Date and application (as among
principal, Make-Whole Amount and
interest) of the payment being made;
[contact name at Company] and
[telephone number]
------------------------------------------------------------------------------------------------------------------------
Address for Notices Related to CIG & Co.
Payments c/o CIGNA Investments, Inc.
Attention: Securities Processing S-309
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
CIG & Co.
c/o CIGNA Investments, Inc.
Attention: Private Securities - S307
Operations Group
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
Chase Manhattan Bank, N.A.
Private Placement Servicing
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: CIGNA Private Placements
Fax: ▇▇▇-▇▇▇-▇▇▇▇/1005
------------------------------------------------------------------------------------------------------------------------
Address for all other Notices CIG & Co.
c/o CIGNA Investments, Inc.
THE O'GARA COMPANY NOTE PURCHASE AGREEMENT
Schedule A-2
57
========================================================================================================================
PURCHASER NAME CONNECTICUT GENERAL LIFE INSURANCE COMPANY
------------------------------------------------------------------------------------------------------------------------
Attention: Private Securities Division - S-307
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------------
Tax Identification Number ▇▇-▇▇▇▇▇▇▇
========================================================================================================================
THE O'GARA COMPANY NOTE PURCHASE AGREEMENT
Schedule A-3
58
========================================================================================================================
PURCHASER NAME MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
------------------------------------------------------------------------------------------------------------------------
Name in Which Note is Registered MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
------------------------------------------------------------------------------------------------------------------------
Note Registration Number; R-9; $7,000,000
Principal Amount
------------------------------------------------------------------------------------------------------------------------
Payment on Account of Note(s)
Method Federal Funds Wire Transfer
Account Information Citibank, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
ABA No. ▇▇▇▇▇▇▇▇▇
For MassMutual Long Term Pool
Account No. 4067-3488
------------------------------------------------------------------------------------------------------------------------
Accompanying Information Name of Company: THE O'GARA COMPANY
Description of
Security: Senior Notes due May 30, 2004
PPN: 67083U A* 3
Due Date and Application (as among principal, Make-Whole Amount and
interest) of the payment being made:
------------------------------------------------------------------------------------------------------------------------
Address for Notices Related to Massachusetts Mutual Life Insurance Company
Payments ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Securities Custody and Collection Department F 381
With telephone advice of payment to
the Securities Custody and Collection
Department of Massachusetts Mutual
Life Insurance Company at (413)
744-3878
------------------------------------------------------------------------------------------------------------------------
Address for all other Notices Massachusetts Mutual Life Insurance Company
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Securities Investment Division
------------------------------------------------------------------------------------------------------------------------
Tax Identification Number ▇▇-▇▇▇▇▇▇▇
========================================================================================================================
THE O'GARA COMPANY NOTE PURCHASE AGREEMENT
Schedule A-4
59
========================================================================================================================
PURCHASER NAME MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
------------------------------------------------------------------------------------------------------------------------
Name in Which Note is Registered MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
------------------------------------------------------------------------------------------------------------------------
Note Registration Number; R-10; $3,000,000
Principal Amount
------------------------------------------------------------------------------------------------------------------------
Payment on Account of Note(s)
Method Federal Funds Wire Transfer
Account Information Chase Manhattan Bank, N.A.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
ABA No. ▇▇▇▇▇▇▇▇▇
For MassMutual Pension Management
Account No. 910-▇▇▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------------
Accompanying Information Name of Company: THE O'GARA COMPANY
Description of
Security: Senior Notes due May 30, 2004
PPN: 67083U A* 3
Due Date and Application (as among principal, Make-Whole Amount and
interest) of the payment being made:
------------------------------------------------------------------------------------------------------------------------
Address for Notices Related to Massachusetts Mutual Life Insurance Company
Payments ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Securities Custody and Collection Department F 381
With telephone advice of payment to
the Securities Custody and Collection
Department of Massachusetts Mutual
Life Insurance Company at (413)
744-3878
------------------------------------------------------------------------------------------------------------------------
Address for all other Notices Massachusetts Mutual Life Insurance Company
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Securities Investment Division
------------------------------------------------------------------------------------------------------------------------
Tax Identification Number ▇▇-▇▇▇▇▇▇▇
========================================================================================================================
THE O'GARA COMPANY NOTE PURCHASE AGREEMENT
Schedule A-5
60
========================================================================================================================
PURCHASER NAME THE TRAVELERS INSURANCE COMPANY
------------------------------------------------------------------------------------------------------------------------
Name in Which Note is Registered TRAL & Co.
------------------------------------------------------------------------------------------------------------------------
Note Registration Number; R-11; $10,000,000
Principal Amount
------------------------------------------------------------------------------------------------------------------------
Payment on Account of Note(s)
Method Federal Funds Wire Transfer
Account Information The Travelers Insurance Company Consolidated Private
Placement Account No.: ▇▇▇-▇-▇▇▇▇▇▇
The Chase Manhattan Bank, N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
ABA No.: 021-000021
------------------------------------------------------------------------------------------------------------------------
Accompanying Information Name of Company: THE O'GARA COMPANY
Description of
Security: Senior Notes due May 30, 2004
PPN: 67083U A* 3
Due Date and Application (as among principal, Make-Whole Amount and
interest) of the payment being made:
------------------------------------------------------------------------------------------------------------------------
Address for Notices Related to The Travelers Insurance Company
Payments ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Cashier
------------------------------------------------------------------------------------------------------------------------
Address for all other Notices The Travelers Insurance Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Investment Group-Private Placements
------------------------------------------------------------------------------------------------------------------------
Tax Identification Number ▇▇-▇▇▇▇▇▇▇
========================================================================================================================
THE O'GARA COMPANY NOTE PURCHASE AGREEMENT
Schedule A-6
61
========================================================================================================================
PURCHASER NAME THE GUARDIAN LIFE INSURANCE COMPANY OF AMERICA
------------------------------------------------------------------------------------------------------------------------
Name in Which Note is Registered ▇▇▇▇ & CO.
------------------------------------------------------------------------------------------------------------------------
Note Registration Number; R-12; $5,000,000
Principal Amount
------------------------------------------------------------------------------------------------------------------------
Payment on Account of Note(s)
Method Federal Funds Wire Transfer
Account Information The Chase Manhattan Bank
FED ABA #▇▇▇▇▇▇▇▇▇
CHASE/NYC/CTR/BNF
A/C ▇▇▇-▇-▇▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------------
Accompanying Information Name of Company: THE O'GARA COMPANY
Description of
Security: Senior Notes due May 30, 2004
PPN: 67083U A* 3
Due Date and Application (as among principal, Make-Whole Amount and
interest) of the payment being made:
------------------------------------------------------------------------------------------------------------------------
Address for Notices Related to The Guardian Life Insurance Company of America
Payments Attn: Investment Accounting M-IA
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
FAX (▇▇▇)▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------------
Address for all other Notices The Guardian Life Insurance Company of America
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Investment Department 7B
FAX (▇▇▇)▇▇▇-▇▇▇▇
-----------------------------------------------------------------------------------------------------------------------
Tax Identification Number ▇▇-▇▇▇▇▇▇▇
========================================================================================================================
THE O'GARA COMPANY NOTE PURCHASE AGREEMENT
Schedule A-7
62
SCHEDULE B
DEFINED TERMS
-------------
As used herein, the following terms have the respective meanings set
forth below or set forth in the Section hereof following such term:
"ACCEPTABLE BANK" is defined in Section 10.10.
"AFFILIATE" means at any time, and with respect to any Person,
(a) any other Person that at such time directly or indirectly
through one or more intermediaries Controls, or is Controlled by, or is
under common Control with, such first Person, and
(b) any Person beneficially owning or holding, directly or
indirectly, 10% or more of any class of voting or equity interests of
the Company or any Subsidiary or any corporation of which the Company
and its Subsidiaries beneficially own or hold, in the aggregate,
directly or indirectly, 10% or more of any class of voting or equity
interests.
As used in this definition, "Control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting securities, by
contract or otherwise. Unless the context otherwise clearly requires, any
reference to an "Affiliate" is a reference to an Affiliate of the Company.
"AGREEMENT, THIS" is defined in Section 17.3.
"AGREEMENTS" is defined in Section 2.
"ASSET DISPOSITION" means any Transfer except:
(a) (i) any Transfer from a Subsidiary to the Company
or a Wholly-Owned Subsidiary,
(ii) any Transfer from the Company to a Wholly-Owned
Subsidiary, and
(iii) any Transfer from the Company to a Subsidiary
(other than a Wholly-Owned Subsidiary) or from a Subsidiary to
another Subsidiary, which in either case is for Fair Market
Value,
so long as immediately before and immediately after the consummation of
any such Transfer and after giving effect thereto, no Default or Event
of Default would exist; and
THE O'GARA COMPANY NOTE PURCHASE AGREEMENT
Schedule B-1
63
(b) any Transfer made in the ordinary course of business and
involving only property that is either (i) inventory held for sale or
(ii) equipment, fixtures, supplies or materials no longer required in
the operation of the business of the Company or any of its Subsidiaries
or that is obsolete.
"BANKS" means KeyBank National Association, and each other bank or
other Person from time to time acting as a lender or other provider of financial
accommodations to the Company or any Subsidiary under the Loan Agreement.
"BUSINESS DAY" means any day other than a Saturday, a Sunday or a day
on which commercial banks in New York City are required or authorized to be
closed.
"CAPITAL LEASE" means a lease with respect to which the lessee is
required concurrently to recognize the acquisition of an asset and the
incurrence of a liability in accordance with GAAP.
"CAPITAL STOCK" means any class of capital stock, share capital or
similar equity interest of a Person.
"CLOSING" is defined in Section 3.
"CODE" means the Internal Revenue Code of 1986, as amended from time to
time, and the rules and regulations promulgated thereunder from time to time.
"COMPANY" is defined in the introductory sentence of this Agreement.
"CONFIDENTIAL INFORMATION" is defined in Section 20.
"CONSOLIDATED ASSETS" means, at any time, the total assets of the
Company and its Subsidiaries which would be shown as assets on a consolidated
balance sheet of the Company and its Subsidiaries as of such time prepared in
accordance with GAAP, after eliminating all amounts properly attributable to
minority interests, if any, in the Capital Stock and surplus of Subsidiaries.
"CONSOLIDATED DEBT" means, as of any date of determination, the total
of all Debt of the Company and its Subsidiaries outstanding on such date, after
eliminating all offsetting debits and credits between the Company and its
Subsidiaries and all other items required to be eliminated in the course of the
preparation of consolidated financial statements of the Company and its
Subsidiaries in accordance with GAAP.
THE O'GARA COMPANY NOTE PURCHASE AGREEMENT
Schedule B-2
64
"CONSOLIDATED FIXED CHARGES" means, with respect to any period, the sum
of (a) Consolidated Interest Charges for such period and (b) Lease Rentals for
such period.
"CONSOLIDATED INTEREST CHARGES" means, with respect to any period, the
sum (without duplication) of the following (in each case, after eliminating all
offsetting debits and credits between the Company and its Subsidiaries and all
other items required to be eliminated in the course of the preparation of
consolidated financial statements of the Company and its Subsidiaries in
accordance with GAAP): (a) all interest in respect of Debt of the Company and
its Subsidiaries (including imputed interest on Capital Leases) deducted in
determining Consolidated Net Income for such period, together with all interest
capitalized or deferred during such period and not deducted in determining
Consolidated Net Income for such period, and (b) all debt discount and expense
amortized or required to be amortized in the determination of Consolidated Net
Income for such period.
"CONSOLIDATED NET INCOME" means, with reference to any period, the net
income (or loss) of the Company and its Subsidiaries for such period (taken as a
cumulative whole), as determined in accordance with GAAP, after eliminating all
offsetting debits and credits between the Company and its Subsidiaries and all
other items required to be eliminated in the course of the preparation of
consolidated financial statements of the Company and its Subsidiaries in
accordance with GAAP, provided that there shall be excluded:
(a) the income (or loss) of any Person accrued prior to the
date it becomes a Subsidiary or is merged into or consolidated with the
Company or a Subsidiary, and the income (or loss) of any Person,
substantially all of the assets of which have been acquired in any
manner, realized by such other Person prior to the date of acquisition,
(b) the income (or loss) of any Person (other than a
Subsidiary) in which the Company or any Subsidiary has an ownership
interest, except to the extent that any such income has been actually
received by the Company or such Subsidiary in the form of cash
dividends or similar cash distributions,
(c) the undistributed earnings of any Subsidiary to the extent
that the declaration or payment of dividends or similar distributions
by such Subsidiary is not at the time permitted by the terms of its
charter or any agreement, instrument, judgment, decree, order, statute,
rule or governmental regulation applicable to such Subsidiary,
(d) any restoration to income of any contingency reserve,
except to the extent that provision for such reserve was made out of
income accrued during such period,
(e) any aggregate net gain (but not any aggregate net loss)
during such period arising from the sale, conversion, exchange or other
disposition of capital assets (such term to
THE O'GARA COMPANY NOTE PURCHASE AGREEMENT
Schedule B-3
65
include, without limitation, (i) all non-current assets and, without
duplication, (ii) the following, whether or not current: all fixed
assets, whether tangible or intangible, all inventory sold in
conjunction with the disposition of fixed assets, and all Securities),
(f) any gains resulting from any write-up of any assets (but
not any loss resulting from any write-down of any assets),
(g) any net gain from the collection of the proceeds of life
insurance policies,
(h) any gain arising from the acquisition of any Security, or
the extinguishment, under GAAP, of any Debt, of the Company or any
Subsidiary,
(i) any deferred credit representing the excess of equity in
any Subsidiary at the date of acquisition over the cost of the
investment in such Subsidiary,
(j) any net income or gain (but not any net loss) during such
period from (i) any change in accounting principles in accordance with
GAAP, (ii) any prior period adjustments resulting from any change in
accounting principles in accordance with GAAP, (iii) any extraordinary
items, or (iv) any discontinued operations or the disposition thereof,
(k) in the case of a successor to the Company by consolidation
or merger or as a transferee of its assets, any earnings of the
successor corporation prior to such consolidation, merger or transfer
of assets, and
(l) any portion of such net income that cannot be freely
converted into United States dollars.
"CONSOLIDATED NET INCOME AVAILABLE FOR FIXED CHARGES" means, with
respect to any period, Consolidated Net Income for such period plus all amounts
deducted in the computation thereof on account of (a) Consolidated Fixed
Charges, (b) taxes imposed on or measured by income or excess profits and (c)
depreciation and amortization.
"CONSOLIDATED NET WORTH" means, at any time,
(a) the sum of (i) the par value (or value stated on the books
of the corporation) of the Capital Stock (but excluding treasury stock,
mandatorily redeemable Preferred Stock, and Capital Stock subscribed
and unissued) of the Company and its Subsidiaries, plus (ii) the amount
of the paid-in capital and retained earnings (or minus retained
deficit) of the Company and its Subsidiaries, in each case as such
amounts would be shown on a consolidated balance sheet of the Company
and its Subsidiaries as of such time prepared in accordance with GAAP,
plus (iii) cumulative foreign currency translation adjustment (or
THE O'GARA COMPANY NOTE PURCHASE AGREEMENT
Schedule B-4
66
minus cumulative foreign currency translation adjustment if such
adjustment is a loss), as such amount would be shown on a consolidated
balance sheet of the Company and its Subsidiaries as of such time
prepared in accordance with GAAP, minus
(b) to the extent included in clause (a), all amounts properly
attributable to minority interests, if any, in the Capital Stock and
surplus of Subsidiaries.
"CONSOLIDATED TOTAL CAPITALIZATION" means, at any time, the sum of
Consolidated Net Worth and Consolidated Debt.
"DEBT" means, with respect to any Person, without duplication,
(a) its liabilities for borrowed money and its redemptive
obligations in respect of mandatorily redeemable Preferred Stock;
(b) its liabilities for the deferred purchase price of
property acquired by such Person (excluding accounts payable arising in
the ordinary course of business but including, without limitation, all
liabilities created or arising under any conditional sale or other
title retention agreement with respect to any such property);
(c) all liabilities appearing on its balance sheet in
accordance with GAAP in respect of Capital Leases;
(d) all liabilities for borrowed money secured by any Lien
with respect to any property owned by such Person (whether or not it
has assumed or otherwise become liable for such liabilities);
(e) all its liabilities in respect of letters of credit or
instruments serving a similar function issued or accepted for its
account by banks and other financial institutions (whether or not
representing obligations for borrowed money);
(f) Swaps of such Person (but only if the aggregate liability
of such Person with respect to all Swaps exceeds $1,000,000); and
(g) any Guaranty of such Person with respect to liabilities of
a type described in any of clauses (a) through (f) hereof.
Debt of any Person shall include all obligations of such Person of the character
described in clauses (a) through (g) to the extent such Person remains legally
liable in respect thereof notwithstanding that any such obligation is deemed to
be extinguished under GAAP.
THE O'GARA COMPANY NOTE PURCHASE AGREEMENT
Schedule B-5
67
"DEFAULT" means an event or condition the occurrence or existence of
which would, with the lapse of time or the giving of notice or both, become an
Event of Default.
"DEFAULT INTEREST RATE" means, at any time, the per annum interest rate
equal to the greater of (i) the Note Interest Rate at such time plus 2% per
annum or (ii) 2% over the rate of interest publicly announced from time to time
by ▇▇▇▇▇▇ Guaranty Trust Company of New York in New York City (or its successor)
as its "base" or "prime" rate.
"DISPOSITION VALUE" means, at any time, with respect to any property,
(a) in the case of property that does not constitute
Subsidiary Stock, the book value thereof, valued at the time of such
disposition in good faith by the Company, and
(b) in the case of property that constitutes Subsidiary Stock,
an amount equal to that percentage of book value of the assets of the
Subsidiary that issued such stock as is equal to the percentage that
the book value of such Subsidiary Stock represents of the book value of
all of the outstanding Capital Stock of such Subsidiary (assuming, in
making such calculations, that all Securities convertible into such
Capital Stock are so converted and giving full effect to all
transactions that would occur or be required in connection with such
conversion) determined at the time of the disposition thereof, in good
faith by the Company.
"DISTRIBUTION" means, in respect of any corporation, association or
other business entity:
(a) dividends or other distributions or payments on Capital
Stock of such corporation, association or other business entity (except
distributions in such Capital Stock), and
(b) the redemption or acquisition of such Capital Stock or of
warrants, rights or other options to purchase such Capital Stock
(except when solely in exchange for such Capital Stock) unless made,
contemporaneously, from the net proceeds of a sale of such Capital
Stock.
"ENVIRONMENTAL LAWS" means any and all Federal, state, local, and
foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or
governmental restrictions relating to pollution and the protection of the
environment or the release of any materials into the environment, including but
not limited to those related to hazardous substances or wastes, air emissions
and discharges to waste or public systems.
"EQUITY OFFERING" means the public or private sale by the Company of
its voting common stock.
THE O'GARA COMPANY NOTE PURCHASE AGREEMENT
Schedule B-6
68
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the rules and regulations promulgated thereunder
from time to time in effect.
"ERISA AFFILIATE" means any trade or business (whether or not
incorporated) that is treated as a single employer together with the Company
under section 414 of the Code.
"EVENT OF DEFAULT" is defined in Section 11.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended
from time to time.
"FAIR MARKET VALUE" means, at any time and with respect to any
property, the sale value of such property that would be realized in an
arm's-length sale at such time between an informed and willing buyer and an
informed and willing seller (neither being under a compulsion to buy or sell).
"FINANCING DOCUMENTS" means, collectively, the Agreements, the Notes,
the Guaranty Agreement, and the Sharing Agreement.
"FIXED CHARGES COVERAGE RATIO" means, at any time, the ratio of (a)
Consolidated Net Income Available for Fixed Charges for the period of four
consecutive fiscal quarters ending on, or most recently ended prior to, such
time to (b) Consolidated Fixed Charges for such period.
"FUTURE-ORIENTED INFORMATION" is defined in Section 5.3.
"GAAP" means generally accepted accounting principles as in effect from
time to time in the United States of America.
"GOVERNMENTAL AUTHORITY" means
(a) the government of
(i) the United States of America or any state or
other political subdivision thereof, or
(ii) any jurisdiction in which the Company or any
Subsidiary conducts all or any part of its business, or that
asserts jurisdiction over any properties of the Company or any
Subsidiary, or
(b) any entity exercising executive, legislative, judicial,
regulatory or administrative functions of, or pertaining to, any such
government.
THE O'GARA COMPANY NOTE PURCHASE AGREEMENT
Schedule B-7
69
"GUARANTOR" means, at any time, each Person (including, without
limitation, the Initial Guarantors) that at such time is a guarantor under the
Guaranty Agreement.
"GUARANTY" means, with respect to any Person, any obligation (except
the endorsement in the ordinary course of business of negotiable instruments for
deposit or collection) of such Person guaranteeing or in effect guaranteeing any
indebtedness, dividend or other obligation of any other Person in any manner,
whether directly or indirectly, including, without limitation, obligations
incurred through an agreement, contingent or otherwise, by such Person:
(a) to purchase such indebtedness or obligation or any
property constituting security therefor;
(b) to advance or supply funds (i) for the purchase or payment
of such indebtedness or obligation, or (ii) to maintain any working
capital or other balance sheet condition or any income statement
condition of any other Person or otherwise to advance or make available
funds for the purchase or payment of such indebtedness or obligation;
(c) to lease properties or to purchase properties or services
primarily for the purpose of assuring the owner of such indebtedness or
obligation of the ability of any other Person to make payment of the
indebtedness or obligation; or
(d) otherwise to assure the owner of such indebtedness or
obligation against loss in respect thereof.
In any computation of the indebtedness or other liabilities of the obligor under
any Guaranty, the indebtedness or other obligations that are the subject of such
Guaranty shall be assumed to be direct obligations of such obligor.
"GUARANTY AGREEMENT" is defined in Section 4.12.
"HAZARDOUS MATERIAL" means any and all pollutants, toxic or hazardous
wastes or any other substances that might pose a hazard to health or safety, the
removal of which may be required or the generation, manufacture, refining,
production, processing, treatment, storage, handling, transportation, transfer,
use, disposal, release, discharge, spillage, seepage, or filtration of which is
or shall be restricted, prohibited or penalized by any applicable law
(including, without limitation, asbestos, urea formaldehyde foam insulation and
polychlorinated biphenyls).
"HOLDER" means, with respect to any Note, the Person in whose name such
Note is registered in the register maintained by the Company pursuant to Section
13.1.
THE O'GARA COMPANY NOTE PURCHASE AGREEMENT
Schedule B-8
70
"INITIAL GUARANTORS" means each of ▇'▇▇▇▇-▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ Armoring
Company, a Delaware corporation, O'Gara Satellite Networks, Inc., a Delaware
corporation, and O'Gara Security International, Inc., a Delaware corporation.
"INSTITUTIONAL INVESTOR" means (a) any original purchaser of a Note,
(b) any holder of a Note holding more than 5% of the aggregate principal amount
of the Notes then outstanding, and (c) any bank, trust company, savings and loan
association or other financial institution, any pension plan, any investment
company, any insurance company, any broker or dealer, or any other similar
financial institution or entity, regardless of legal form.
"INVESTMENT" means any investment, made in cash or by delivery of
property, by the Company or any of its Subsidiaries (i) in any Person, whether
by acquisition of Capital Stock, Debt or other obligation or Security, or by
loan, Guaranty, advance, capital contribution or otherwise, or (ii) in any
property.
"LEASE RENTALS" means, with respect to any period, the sum of the
minimum amount of rental and other obligations required to be paid during such
period by the Company or any Subsidiary as lessee under all leases of real or
personal property (other than Capital Leases and leases with respect to which
the Company or a Subsidiary is the lessor), excluding any amounts required to be
paid by the lessee (whether or not therein designated as rental or additional
rental) (a) which are on account of maintenance and repairs, insurance, taxes,
assessments, water rates and similar charges, or (b) which are based on profits,
revenues or sales realized by the lessee from the leased property or otherwise
based on the performance of the lessee.
"LIEN" means, with respect to any Person, any mortgage, lien, pledge,
charge, security interest or other encumbrance, or any interest or title of any
vendor, lessor, lender or other secured party to or of such Person under any
conditional sale or other title retention agreement or Capital Lease, upon or
with respect to any property or asset of such Person (including in the case of
Capital Stock, stockholder agreements, voting trust agreements and all similar
arrangements).
"LOAN AGREEMENT" means the Loan Agreement dated as of May 30, 1997,
between the Company and the Bank, as may be amended, restated or otherwise
modified from time to time, or replaced by a new agreement; provided that if any
such new agreement shall at any time be entered into by the Company, then
concurrently therewith the Company shall, unless otherwise agreed by the
Required Holders, cause the Banks under such new agreement to enter into a new
sharing agreement with the holders of the Notes substantially in the form of the
Sharing Agreement.
"MAKE-WHOLE AMOUNT" is defined in Section 8.5.
THE O'GARA COMPANY NOTE PURCHASE AGREEMENT
Schedule B-9
71
"MATERIAL" means material in relation to the business, operations,
affairs, financial condition, assets, properties, or prospects of the Company
and its Subsidiaries taken as a whole.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the
business, operations, affairs, financial condition, assets or properties of the
Company and its Subsidiaries taken as a whole, or (b) the ability of any Obligor
to perform its obligations under any of the Financing Documents, or (c) the
validity or enforceability of any of the Financing Documents.
"MEMORANDUM" is defined in Section 5.3.
"MULTIEMPLOYER PLAN" means any Plan that is a "multiemployer plan" (as
such term is defined in section 4001(a)(3) of ERISA).
"NET PROCEEDS AMOUNT" means, with respect to any Transfer of any
property by any Person, an amount equal to the difference of
(a) the aggregate amount of the consideration (valued at the
Fair Market Value of such consideration at the time of the consummation
of such Transfer) received by such Person in respect of such Transfer,
minus
(b) all ordinary and reasonable out-of-pocket costs and
expenses actually incurred by such Person in connection with such
Transfer.
"NET PROCEEDS OF CAPITAL STOCK" means, with respect to any period, cash
proceeds (net of all costs and out-of-pocket expenses in connection therewith,
including, without limitation, placement, underwriting and brokerage fees and
expenses) received by the Company and its Subsidiaries during such period, from
the sale of all Capital Stock (other than mandatorily redeemable Capital Stock)
of the Company, including in such net proceeds:
(a) the net amount paid upon issuance and exercise during such
period of any right to acquire any Capital Stock, or paid during such
period to convert a convertible debt Security to Capital Stock (but
excluding any amount paid to the Company upon issuance of such
convertible debt Security); and
(b) any amount paid to the Company upon issuance of any
convertible debt Security issued on or after April 1, 1997 and
thereafter converted to Capital Stock during such period.
THE O'GARA COMPANY NOTE PURCHASE AGREEMENT
Schedule B-10
72
"NON-QUALIFYING BANK" is defined in Section 10.10.
"NOTE INTEREST RATE" means, as of the date of any determination
thereof,
(a) during the period beginning on and including the date of
the Closing and ending on but not including May 30, 1998, 9.56% per
annum, and
(b) at all times on and after May 30, 1998,
(i) if the Notes shall have been given an Investment
Grade Rating on or prior to May 30, 1998, then 8.56% per
annum,
(ii) if the Company shall have completed a
Substantial Equity Offering on or prior to February 28, 1998,
then 9.06% per annum,
(iii) if both of the events described in clauses (i)
and (ii) shall have occurred in accordance with the terms
thereof, then 8.56% per annum, and
(iv) if neither of the events described in clauses
(i) and (ii) shall have occurred in accordance with the terms
thereof, then 9.56% per annum.
For purposes of this definition:
"Investment Grade Rating" means a rating of
(a) "BBB-" or higher by Duff & ▇▇▇▇▇▇ Credit Rating
Co.,
(b) "BBB-" or higher by Standard and Poor's Ratings
Group,
(c) "Baa3" or higher by ▇▇▇▇▇'▇ Investors Service,
Inc., or
(d) "BBB-" or higher by Fitch Investors Service,
Inc., or
an equivalent rating from any other nationally recognized rating
agency.
"NOTES" is defined in Section 1.
"OBLIGORS" means the Company and each Guarantor.
THE O'GARA COMPANY NOTE PURCHASE AGREEMENT
Schedule B-11
73
"OFFICER'S CERTIFICATE" means a certificate of a Senior Financial
Officer or of any other officer of the Company whose responsibilities extend to
the subject matter of such certificate.
"OTHER PURCHASERS" is defined in Section 2.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA or any successor thereto.
"PERMITTED PUT RIGHT" of a holder of an industrial revenue bond means
the right of such holder to cause such bond to be repurchased, pursuant to its
terms or pursuant to the instrument under which it was issued, (i) on any
interest payment date if the interest rate is to be reset on such date or (ii)
upon replacement of the issuer of any letter of credit which serves as a source
of repayment of such bond; provided that the failure of the Company or any
Subsidiary to repay when due all amounts advanced by any Person or Persons to
permit repurchase of such bond shall constitute an Event of Default if the
aggregate amount so advanced and not so repaid is equal to or greater than
$1,000,000.
"PERSON" means an individual, partnership, corporation, limited
liability company, association, trust, unincorporated organization, or a
government or agency or political subdivision thereof.
"PLAN" means an "employee benefit plan" (as defined in section 3(3) of
ERISA) that is or, within the preceding five years, has been established or
maintained, or to which contributions are or, within the preceding five years,
have been made or required to be made, by the Company or any ERISA Affiliate or
with respect to which the Company or any ERISA Affiliate may have any liability.
"PREFERRED STOCK" means, in respect of any corporation, shares of the
Capital Stock of such corporation that are entitled to preference or priority
over any other shares of the Capital Stock of such corporation in respect of
payment of dividends or distribution of assets upon liquidation.
"PRIORITY DEBT" means, at any time, without duplication, the sum of
(a) all Debt of the Company secured by any Lien, other than
any such Debt secured by a Lien permitted by any one or more of clauses
(a)(i) through (a)(viii), inclusive, of Section 10.6(a), plus
(b) all Debt of Subsidiaries,
provided that there shall be excluded from Priority Debt (i) Debt of any
Guarantor under the Guaranty Agreement, (ii) unsecured Debt of any Guarantor
under such Guarantor's guaranty of obligations under the Loan Agreement, so long
as such obligations of such Guarantor are subject
THE O'GARA COMPANY NOTE PURCHASE AGREEMENT
Schedule B-12
74
to the sharing provisions of the Sharing Agreement, (iii) unsecured Debt of
▇'▇▇▇▇-▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ Armoring Company under the Loan Agreement, and (iv) any
Debt of any Subsidiary under clause (b) above owing solely to the Company or any
Wholly-Owned Subsidiary.
"PROPERTY OR PROPERTIES" means, unless otherwise specifically limited,
real or personal property of any kind, tangible or intangible, ▇▇▇▇▇▇ or
inchoate.
"PROPERTY REINVESTMENT APPLICATION" means, with respect to any Transfer
of property, the satisfaction of each of the following conditions:
(a) an amount equal to the Net Proceeds Amount with respect to
such Transfer shall have been applied to the acquisition by the
Company, or any of its Subsidiaries making such Transfer, of property
that upon such acquisition is unencumbered by any Lien (other than
Liens described in clauses (i) through (ix), inclusive, of Section
10.6(a)) and that
(i) constitutes property that is (A) property
classifiable under GAAP as non-current to the extent that such
proceeds are derived from the transfer of property that was
properly classifiable as non-current, and otherwise properly
classifiable as either current or non-current, and (B) to be
used in the ordinary course of business of the Company and the
Subsidiaries, or
(ii) constitutes equity interests of a Person that
shall be, on or prior to the time of such acquisition, a
Subsidiary, and that shall invest the proceeds of such
acquisition in property of the nature described in the
immediately preceding clause (i); and
(b) the Company shall have delivered a certificate of a
Responsible Officer of the Company to each holder of a Note referring
to Section 10.8 and identifying the property that was the subject of
such Transfer, the Disposition Value of such property, and the nature,
terms, amount and application of the proceeds from the Transfer.
"PTE" is defined in Section 6.2(c).
"QPAM EXEMPTION" means Prohibited Transaction Class Exemption 84-14
issued by the United States Department of Labor.
"QUALIFIED INSTITUTIONAL BUYER" means any Person who is a "qualified
institutional buyer" within the meaning of such term as set forth in Rule
144A(a)(1) under the Securities Act.
"REINVESTMENT NOTICE" is defined in Section 10.8(b).
THE O'GARA COMPANY NOTE PURCHASE AGREEMENT
Schedule B-13
75
"REQUIRED HOLDERS" means, at any time, the holder or holders of at
least a majority in principal amount of the Notes at the time outstanding
(exclusive of Notes then owned by the Company or any of its Affiliates).
"RESPONSIBLE OFFICER" means any Senior Financial Officer and any other
officer of the Company with responsibility for the administration of the
relevant portion of this Agreement.
"RESTRICTED PAYMENT" means any Distribution in respect of the Company
or any Subsidiary (other than on account of Capital Stock of a Subsidiary owned
legally and beneficially by the Company or another Subsidiary), including,
without limitation, any Distribution resulting in the acquisition by the Company
of Securities which would constitute treasury stock. For purposes of this
Agreement, the amount of any Restricted Payment made in property shall be the
greater of (a) the Fair Market Value of such property (as determined in good
faith by the board of directors (or equivalent governing body) of the Person
making such Restricted Payment) and (b) the net book value thereof on the books
of such Person, in each case determined as of the date on which such Restricted
Payment is made.
"RETIREMENT PLAN" is defined in Section 5.12(a).
"SECURITIES ACT" means the Securities Act of 1933, as amended from time
to time.
"SECURITY" has the meaning set forth in Section 2(1) of the Securities
Act.
"SENIOR DEBT" means any Debt of the Company other than Subordinated
Debt.
"SENIOR FINANCIAL OFFICER" means the chief financial officer, principal
accounting officer, treasurer or comptroller of the Company.
"SHARING AGREEMENT" is defined in Section 4.13.
"SOURCE" is defined in Section 6.2.
"SUBORDINATED DEBT" means any Debt of the Company that, by its terms,
is in any manner subordinated in right of payment in any respect to Debt
evidenced by the Notes.
"SUBSIDIARY" means, as to any Person, any corporation, association or
other business entity in which such Person or one or more of its Subsidiaries or
such Person and one or more of its Subsidiaries owns sufficient equity or voting
interests to enable it or them (as a group) ordinarily, in the absence of
contingencies, to elect a majority of the directors (or Persons performing
similar functions) of such entity, and any partnership or joint venture if more
than a 50% interest in the profits or capital thereof is owned by such Person or
one or more of its Subsidiaries or such
THE O'GARA COMPANY NOTE PURCHASE AGREEMENT
Schedule B-14
76
Person and one or more of its Subsidiaries (unless such partnership can and does
ordinarily take major business actions without the prior approval of such Person
or one or more of its Subsidiaries). Unless the context otherwise clearly
requires, any reference to a "Subsidiary" is a reference to a Subsidiary of the
Company.
"SUBSIDIARY STOCK" means any class of Capital Stock (or any options or
warrants to purchase any Capital Stock, or other Securities exchangeable for or
convertible into any Capital Stock) of any Subsidiary.
"SUBSTANTIAL EQUITY OFFERING" means an Equity Offering resulting in
proceeds (net of all costs and out-of-pocket expenses in connection therewith,
including, without limitation, placement, underwriting and brokerage fees and
expenses) received by the Company of not less than $20,000,000.
"SUCCESSOR CORPORATION" is defined in Section 10.7(a).
"SWAPS" means, with respect to any Person, payment obligations with
respect to interest rate swaps, currency swaps and similar obligations
obligating such Person to make payments, whether periodically or upon the
happening of a contingency. For the purposes of this Agreement, the amount of
the obligation under any Swap shall be the amount determined in respect thereof
as of the end of the then most recently ended fiscal quarter of such Person,
based on the assumption that such Swap had terminated at the end of such fiscal
quarter, and in making such determination, if any agreement relating to such
Swap 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
obligation shall be the net amount so determined.
"TRANSFER" means, with respect to any Person, any transaction in which
such Person sells, conveys, transfers or leases (as lessor) any of its property,
including, without limitation, Subsidiary Stock. For purposes of determining the
application of the Net Proceeds Amount in respect of any Transfer, the Company
may designate any Transfer as one or more separate Transfers each yielding a
separate Net Proceeds Amount. In any such case, the Disposition Value of any
property subject to each such separate Transfer shall be determined by ratably
allocating the aggregate Disposition Value of all property subject to all such
separate Transfers to each such separate Transfer on a proportionate basis.
"UNAPPLIED PORTION OF THE NET PROCEEDS AMOUNT" is defined in Section
10.8(b).
"UNITED STATES GOVERNMENTAL SECURITY" is defined in Section 10.10.
THE O'GARA COMPANY NOTE PURCHASE AGREEMENT
Schedule B-15
77
"WHOLLY-OWNED SUBSIDIARY" means any Subsidiary of the Company all of
the equity interests (except director's qualifying shares), voting interests and
Debt of which are owned by any one or more of the Company and the Company's
other Wholly-Owned Subsidiaries.
THE O'GARA COMPANY NOTE PURCHASE AGREEMENT
Schedule B-16
78
SCHEDULE 3
PAYMENT INSTRUCTIONS
--------------------
BANK: KEYBANK NATIONAL ASSOCIATION
CLEVELAND, OHIO
ABA #: ▇▇▇▇▇▇▇▇▇
FOR CREDIT TO: THE O'GARA COMPANY
▇▇▇▇▇▇▇▇▇▇▇▇
CONTACT: ▇▇▇▇▇ ▇▇▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
THE O'GARA COMPANY NOTE PURCHASE AGREEMENT
Schedule 3-1
79
SCHEDULE 4.9
CHANGES IN CORPORATE STRUCTURE
------------------------------
None.
THE O'GARA COMPANY NOTE PURCHASE AGREEMENT
Schedule 4.9-1
80
SCHEDULE 5.3
DISCLOSURE MATERIALS
--------------------
THE O'GARA COMPANY
Due to certain currency adjustments, the pro forma 1994 and 1995 historical
EBITDA should be reflected at $5.5 million and $3.7 million, respectively,
within the Private Placement Memorandum. Please note this adjustment in your
review of the materials. The change only relates to pro forma historical EBITDA
and only pertains to 1994 and 1995. All other financial results and statistics
are not impacted by this change. The following pages with pro forma historical
financial data within the Private Placement Memorandum that are affected are
▇-▇, ▇-▇, ▇-▇, ▇-▇.
The table of summary financial data on page A-1 of the Private Placement
Memorandum which has been corrected to reflect the actual pro forma 1994 and
1995 historical EBITDA is reproduced below:
Summary Financial and Credit Statistics Information
Fiscal Year Ending December 31,
------------------------------------------------------------------
Projected
(dollars in millions) 1994(1) 1995(1) 1996(1,2) 1997(1)
------------------------------------------------------------------
Net sales $61.0 $60.7 $117.5 $125.7
EBITDA 5.5 3.7 12.6 15.2
Total debt 10.5 15.6 35.7 35.2
Shareholders' equity 6.2 6.9 17.0 23.0
EBITDA/Interest expense 8.7x 3.2x 3.3x 5.2x
Total debt/EBITDA 1.9x 4.2x 2.8x 2.3x
Total debt/Total capitalization 62.7% 69.3% 67.8% 60.5%
--------
Note(1): Adjusted for Note offering.
THE O'GARA COMPANY NOTE PURCHASE AGREEMENT
Schedule 5.3-1
81
SCHEDULE 5.4
SUBSIDIARIES OF THE COMPANY AND OWNERSHIP OF SUBSIDIARY STOCK
-------------------------------------------------------------
1. ▇'▇▇▇▇-▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ ARMORING COMPANY, a Delaware corporation
("OHEAC"), 100% owned by The O'Gara Company.
2. O'GARA SATELLITE NETWORKS, INC., a Delaware corporation, 100% owned
by The O'Gara Company.
3. O'GARA SATELLITE NETWORKS LIMITED, an Irish Company ("OSN Limited"),
100% owned by The O'Gara Company.
4. NEXT DESTINATION LIMITED, a U.K. corporation, 100% owned by The
O'Gara Company. The shares of Next Destination Limited are pledged in favor of
The Fifth Third Bank, which lien will be released in connection with the
issuance of the Notes, as well as in favor of the previous owners of Next
Destination Limited to secure The O'Gara Company's purchase money financing
notes. Additionally, Next Destination's ability to pay dividends is restricted
pursuant to the terms of the attached Schedule 5.4A.
5. ▇'▇▇▇▇-▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ ARMORING COMPANY LIMITED, an Irish
corporation, 100% owned by OHEAC.
6. ▇'▇▇▇▇-▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇, S.R.L., an Italian corporation, 90% owned
by OHEAC.
7. ▇'▇▇▇▇-▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ ARMORING COMPANY DE MEXICO, SA DE CV, a
Mexican corporation, 100% owned by OHEAC.
8. ▇'▇▇▇▇-▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ DO BRASIL LTDA, a Brazilian corporation,
87.5% owned by OHEAC. If the minority owner continues in the employ of the
company through December 31, 1997, his interest increases to 25%. OHEAC has an
option to purchase his interest for stock of The O'Gara Company.
9. O'GARA SECURITY INTERNATIONAL, a Delaware corporation ("OSI"), 100%
owned by OHEAC.
10. O'▇▇▇▇ ▇▇▇▇▇ AUTOMOTIVE GROUP, a Russian joint stock company, 51%
owned by OSI.
11. O'GARA SECURITY ASSOCIATES RUSSIA, a Russian company, 80% owned by
▇▇▇▇▇▇▇▇ Maroutchenko, as Trustee for OSI.
THE O'GARA COMPANY NOTE PURCHASE AGREEMENT
6 Schedule 5.4-1
82
12. O'GARA FRANCE S.A., a French corporation, 100% owned by OHEAC.
13. ▇▇▇▇▇ ▇▇, a French corporation, 100% owned by O'Gara France S.A.
14. HELLIO POIDS LOURDS - CARROSSERIE, TOLERIE, PEINTURE SA, a French
corporation, 100% owned by ▇▇▇▇▇.
15. SARL NORMANDIE CARROSSERIE, a French corporation, 83.7% owned by
▇▇▇▇▇.
16. SOCIETE DE BLINDAGE AND DE SECURITE, a French corporation, 100%
owned by ▇▇▇▇▇.
17. O'GARA SECURITY ASSOCIATES, INC. ("OSAI"), an Ohio corporation,
100% owned by the Company.
18. INTERNATIONAL TRAINING, INCORPORATED, a Virginia corporation, 100%
owned by
OSAI.
19. THE O'GARA COMPANY FSC, INC., a Barbados corporation, 100% owned by
The O'Gara Company.
THE O'GARA COMPANY NOTE PURCHASE AGREEMENT
Schedule 5.4-2
83
SCHEDULE 5.4A
(PROVISIONS APPLICABLE TO THE LOAN NOTES)
1. The Company agrees that it shall procure that Next Destination Limited
shall not declare or pay any dividend until the earlier of:
(i) the principal amount of the Loan Notes being repaid in full,
to the extent that they have not been extinguished or reduced
pursuant to their terms and the provisions of the Agreement
for the acquisition of shares of Next Destination Limited,
dated February 4, 1997, together with all interest due thereon
at the date of such repayment; and
(ii) the date on which the net assets of Next
Destination Limited are increased to (pound
sterling)184,857.00 provided that the payment of any dividend
so declared will not, at the date of payment, cause the net
assets of the Next Destination Limited to reduce below (pound
sterling)184,857.00.
THE O'GARA COMPANY NOTE PURCHASE AGREEMENT
Schedule 5.4-3
84
SCHEDULE 5.5
FINANCIAL STATEMENTS
--------------------
The O'Gara Company's Form 10-K for the fiscal year ended December 31, 1996,
dated March 27, 1997.
The O'Gara Company's Form 10-Q for the three-month period ended March 31, 1997,
dated May 15, 1997.
THE O'GARA COMPANY NOTE PURCHASE AGREEMENT
Schedule 5.5-1
85
SCHEDULE 5.8
CERTAIN LITIGATION
------------------
O'GARA PROTECTIVE SERVICES, INC., ET AL V. THE O'GARA COMPANY, ET AL.,
(No. C-1-96-979 S.D. Ohio).
THE O'GARA COMPANY NOTE PURCHASE AGREEMENT
Schedule 5.8-1
86
SCHEDULE 5.11
PATENTS, ETC.
-------------
Except as claimed in O'GARA PROTECTIVE SERVICES, INC., ET AL V. THE O'GARA
COMPANY, ET AL., (No. C-1-96-979 S.D. Ohio).
THE O'GARA COMPANY NOTE PURCHASE AGREEMENT
Schedule 5.11-1
87
SCHEDULE 5.12
ERISA AFFILIATES
----------------
1. The O'Gara Company
2. ▇'▇▇▇▇-▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ Armoring Company
3. O'Gara Satellite Networks, Inc.
4. O'Gara Satellite Networks Limited
5. Next Destination Limited
6. ▇'▇▇▇▇-▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ Armoring Company Limited
7. ▇'▇▇▇▇-▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇, S.r.l.
8. ▇'▇▇▇▇-▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ Armoring Company de Mexico, SA de CV
9. ▇'▇▇▇▇-▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ do Brasil LTDA
10. O'Gara Security International
11. O'▇▇▇▇ ▇▇▇▇▇ Automotive Group
12. O'Gara Security Associates Russia
13. O'Gara France S.A.
14. ▇▇▇▇▇ ▇▇
15. Hellio Poids Lourds - Carrosserie, Tolerie, Peinture SA
16. SARL Normandie Carrosserie
17. Societe De Blindage and de Securite
18. O'Gara Security Associates, Inc.
19. International Training, Incorporated
THE O'GARA COMPANY NOTE PURCHASE AGREEMENT
Schedule 5.12-1
88
20. The O'Gara Company FSC, Inc.
THE O'GARA COMPANY NOTE PURCHASE AGREEMENT
Schedule 5.12-2
89
EMPLOYEE BENEFIT PLANS
----------------------
1. O'Gara Companies Employee Benefit Plan
Life, Disability and Health Insurance
2. ▇'▇▇▇▇-▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ Armoring Company Thrift Savings 401(k) Plan
3. O'Gara Satellite Networks, Inc. Thrift Savings 401(k) Plan
THE O'GARA COMPANY NOTE PURCHASE AGREEMENT
Schedule 5.12-3
90
SCHEDULE 5.14
USE OF PROCEEDS
---------------
$600,000 Transaction Costs
$26,200,000 Repayment of Indebtedness
$3,000,000 Reduction of Accounts Payable
$700,000 Acquisition and Development of San Antonio Facility
$600,000 Consolidation of production at LeSaint Drive Facility
$2,200,000 Working Capital
$1,700,000 Retire Acquisition Debt
THE O'GARA COMPANY NOTE PURCHASE AGREEMENT
Schedule 5.14-1
91
SCHEDULE 5.15
EXISTING DEBT AND LIENS
-----------------------
Principal Balance
Obligation Obligor as 6/3/97 Collateral
----------------------------------------------------------------------------------------------------------------------------------
Industrial Revenue Bonds OHEAC-Guaranteed by TOC $1,518,750 LeSaint Drive Facility
Next Destination Purchase TOC $1,750,000 Stock of Next
(Seller Financing) Destination
ITI Purchase OHEAC-Guaranteed by TOC $1,231,512 None
(Seller Financing)
▇▇▇▇▇▇ Associates Purchase OHEAC $500,000 None
(Seller Financing)
▇▇▇▇▇ acquisition of Its ▇▇▇▇▇▇ ▇▇▇▇▇ Fr.1,000,000 None
subsidiary (completed prior to
Company's acquisition of ▇▇▇▇▇)
KeyBank National Association TOC, OHEAC-Guaranteed by $8,500,0003 None
OSN, Inc. and OSI, Inc.
PNC Bank OHEAC $193,000 Corporate Residence
Bank of Essex ITI - Guaranteed by TOC $177,099 Vehicles used by ITI
Norstan (capital lease) OHEAC $20,000 Telephone System
Batiroc (capital lease) ▇▇▇▇▇ $960,000 Building Lease
--------
Note(2). Includes a $4,500,000 revolving credit facility, none of which is
outstanding.
THE O'GARA COMPANY NOTE PURCHASE AGREEMENT
Schedule 5.15-1
92
SCHEDULE 10.10
EXISTING INVESTMENTS
--------------------
None.
THE O'GARA COMPANY NOTE PURCHASE AGREEMENT
Schedule 10.10-1
93
EXHIBIT 1
FORM OF NOTE
THE O'GARA COMPANY
SENIOR NOTE DUE MAY 30, 2004
No. R-___ [Date]
$_______ PPN______________
FOR VALUE RECEIVED, the undersigned, THE O'GARA COMPANY (herein called
the "COMPANY"), a corporation organized and existing under the laws of the State
of Ohio, hereby promises to pay to , or registered assigns, the principal sum of
__________ DOLLARS ($_________) on May 30, 2004, with interest (computed on the
basis of a 360-day year of twelve 30-day months) (a) on the unpaid balance
thereof at the Note Interest Rate from the date hereof, payable semiannually on
the 30th day of May and November in each year, commencing with the May 30 or
November 30 next succeeding the date hereof, until the principal hereof shall
have become due and payable, and (b) to the extent permitted by law on any
overdue payment (including any overdue prepayment) of principal, any overdue
payment of interest and any overdue payment of any Make-Whole Amount (as defined
in the Note Purchase Agreement referred to below), payable semiannually as
aforesaid (or, at the option of the registered holder hereof, on demand), at a
rate per annum from time to time equal to the lesser of (i) the highest rate
allowed by applicable law or (ii) the Default Interest Rate, all as provided in
the Note Purchase Agreement referred to below.
Payments of principal of, interest on and any Make-Whole Amount with
respect to this Note are to be made in lawful money of the United States of
America at the address shown in the register maintained by the Company for such
purpose or at such other place as the Company shall have designated by written
notice to the holder of this Note as provided in the Note Purchase Agreement
referred to below.
This Note is one of a series of Senior Notes (herein called the
"NOTES") issued pursuant to separate Note Purchase Agreements, dated as of May
30, 1997 (collectively, as from time to time amended, the "NOTE PURCHASE
AGREEMENT"), between the Company and the respective purchasers named therein and
is entitled to the benefits thereof. Capitalized terms used herein and not
otherwise defined herein have the meanings specified in the Note Purchase
Agreement. Each holder of this Note will be deemed, by its acceptance hereof,
(i) to have agreed to the confidentiality provisions set forth in Section 20 of
the Note Purchase Agreement and (ii) to have made the representation set forth
in Section 6.2 of the Note Purchase Agreement.
This Note is a registered Note and, as provided in the Note Purchase
Agreement, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written
FORM OF NOTE
Exhibit 1-1
94
instrument of transfer duly executed, by the registered holder hereof or such
holder's attorney duly authorized in writing, a new Note for a like principal
amount will be issued to, and registered in the name of, the transferee. Prior
to due presentment for registration of transfer, the Company may treat the
person in whose name this Note is registered as the owner hereof for the purpose
of receiving payment and for all other purposes, and the Company will not be
affected by any notice to the contrary.
This Note is subject to optional prepayment, in whole or from time to
time in part, at the times and on the terms specified in the Note Purchase
Agreement, but not otherwise.
If an Event of Default, as defined in the Note Purchase Agreement,
occurs and is continuing, the principal of this Note may be declared or
otherwise become due and payable in the manner, at the price (including any
applicable Make-Whole Amount) and with the effect provided in the Note Purchase
Agreement.
THIS NOTE AND THE NOTE PURCHASE AGREEMENT ARE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, EXCLUDING
CHOICE-OF-LAW PRINCIPLES OF THE LAW OF SUCH STATE THAT WOULD REQUIRE THE
APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN SUCH STATE.
THE O'GARA COMPANY
By
-----------------------------------
Name:
Title:
FORM OF NOTE
Exhibit 1-2
95
EXHIBIT 4.3(a)
FORM OF OFFICER'S CERTIFICATE
THE O'GARA COMPANY
CERTIFICATE OF OFFICER
I, ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, hereby certify that I am the Executive Vice
President and Treasurer of THE O'GARA COMPANY, an Ohio corporation (the
"COMPANY"), and further certify, in all respects in my capacity as such officer,
that I have access to its corporate records and am familiar with the matters
herein certified, and I am authorized to execute and deliver this Certificate in
the name and on behalf of the Company, and that:
1. This certificate is being delivered pursuant to Section 4.3(a) of
the Company's separate Note Purchase Agreements (collectively, the "NOTE
PURCHASE AGREEMENT"), each dated as of May 30, 1997, with each of the purchasers
listed on Schedule A thereto (collectively, the "PURCHASERS"). The terms used in
this Certificate and not defined herein have the respective meanings specified
in the Note Purchase Agreement.
2. The warranties and representations contained in Section 5 of the
Note Purchase Agreement are true on the date hereof with the same effect as
though made on and as of the date hereof.
3. After giving effect to the issue and sale of the Notes (and the
application of the proceeds thereof as contemplated by Schedule 5.14 of the Note
Purchase Agreement), no Default or Event of Default has occurred and is
continuing.
4. Neither the Company nor any of its Subsidiaries has taken any action
or permitted any condition to exist that would have been prohibited by any of
Sections 10.1, 10.8, 10.9 or 10.10, inclusive, of the Note Purchase Agreement
had such Sections been binding and effective at all times during the period from
December 31, 1996 to the date hereof, inclusive.
5. Except as specified in Schedule 4.9 to the Note Purchase Agreement,
the Company has not changed its jurisdiction of incorporation or been a party to
any merger or consolidation and has not succeeded to all or any substantial part
of the liabilities of any other entity, at any time following the date of the
most recent financial statements referred to in Schedule 5.5 to the Note
Purchase Agreement.
6. The Company has performed and complied with all agreements and
conditions contained in the Note Purchase Agreement that are required to be
performed or complied with by the Company before or at the date hereof.
FORM OF OFFICER'S CERTIFICATE
Exhibit 4.3(a)-1
96
7. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, from May 20, 1997 to the date hereof, inclusive,
has been and is the duly elected, qualified and acting Secretary of the Company,
and the signature appearing on the Certificate of Secretary dated the date
hereof and delivered to the Purchasers contemporaneously herewith is his genuine
signature.
IN WITNESS WHEREOF, I have executed this Certificate in the name and on
behalf of the Company on June ___, 1997.
THE O'GARA COMPANY
By:
-----------------------------
Title:
FORM OF OFFICER'S CERTIFICATE
Exhibit 4.3(a)-2
97
EXHIBIT 4.3(b)
FORM OF SECRETARY'S CERTIFICATE
THE O'GARA COMPANY
CERTIFICATE OF SECRETARY
I, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, hereby certify that I am the duly elected,
qualified and acting Secretary of THE O'GARA COMPANY, an Ohio corporation (the
"COMPANY"), and further certify, in all respects in my capacity as such officer,
that I have access to its corporate records and am familiar with the matters
herein certified, and I am authorized to execute and deliver this Certificate in
the name and on behalf of the Company, and that:
1. This certificate is being delivered pursuant to Section 4.3(b) of
the Company's separate Note Purchase Agreements (collectively, the "NOTE
PURCHASE AGREEMENT"), each dated as of May 30, 1997, with each of the purchasers
listed on Schedule A thereto (collectively, the "PURCHASERS"). The terms used in
this Certificate and not defined herein have the respective meanings specified
in the Note Purchase Agreement.
2. Attached hereto as Attachment A is a true and correct copy of
resolutions adopted by the Board of Directors of the Company on March 24, 1997,
and such resolutions set forth in Attachment A hereto were duly adopted by said
Board of Directors and are in full force and effect on and as of the date
hereof, not having been amended, altered or repealed, and such resolutions are
filed with the records of the Board of Directors.
3. The documents listed below were executed and delivered by the
Company pursuant to and in accordance with the resolutions set forth in
Attachment A hereto:
(a) the Company's Note Purchase Agreement providing for the
sale by the Company and the purchase by the Purchasers of the Company's
Senior Notes due 2004 (the "NOTES"); and
(b) the Notes.
4. Attached hereto as Attachment B is a true, correct and complete copy
of the code of regulations of the Company as in full force and effect on and as
of the date hereof, which code of regulations has been in full effect in said
form at all times from March 24, 1997 to the date hereof, inclusive, without
modification or amendment in any respect.
5. Each of the following named persons is and has been a duly elected,
qualified and acting officer of the Company holding the office or offices set
forth below opposite his name
FORM OF SECRETARY'S CERTIFICATE
Exhibit 4.3(b)-1
98
from March 24, 1997 (except, in the case of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, who has held the
office of Secretary of the Company from May 20, 1997) to the date hereof,
inclusive:
Name Office Signature
▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇ President and Chief
Executive Officer /s/
-----------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ Executive Vice President
and Treasurer /s/
-----------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Vice President, General
Counsel and Secretary /s/
-----------------------
6. The signature appearing opposite the name of each such person set
forth above is his or her genuine signature.
7. Attached hereto as Attachment C is a true, correct and complete copy
of the articles of incorporation of the Company as in full force and effect on
and as of the date hereof, certified by the Secretary of State of the State of
Ohio, which articles of incorporation have been in full effect in said form at
all times from _____________________, 1997 to the date hereof, inclusive,
without modification or amendment in any respect.
IN WITNESS WHEREOF, I have hereunto set my hand on ________________,
1997.
THE O'GARA COMPANY
Secretary
FORM OF SECRETARY'S CERTIFICATE
Exhibit 4.3(b)-2
99
ATTACHMENT A
RESOLUTIONS OF THE BOARD OF DIRECTORS
[To be provided by the Company.]
FORM OF SECRETARY'S CERTIFICATE
Exhibit 4.3(b)-3
100
ATTACHMENT B
CODE OF REGULATIONS OF THE COMPANY
[To be supplied by Company.]
FORM OF SECRETARY'S CERTIFICATE
Exhibit 4.3(b)-4
101
ATTACHMENT C
ARTICLES OF INCORPORATION OF THE COMPANY
[To be supplied by Company.]
FORM OF SECRETARY'S CERTIFICATE
Exhibit 4.3(b)-5
102
EXHIBIT 4.3(c)
FORM OF INITIAL GUARANTOR SECRETARY'S CERTIFICATE
[NAME OF INITIAL GUARANTOR]
CERTIFICATE OF SECRETARY
I, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, hereby certify that I am the duly elected,
qualified and acting Secretary of [NAME OF INITIAL GUARANTOR], a Delaware
corporation (the "COMPANY"), and further certify, in all respects in my capacity
as such officer, that I have access to its corporate records and am familiar
with the matters herein certified, and I am authorized to execute and deliver
this Certificate in the name and on behalf of the Company, and that:
1. This certificate is being delivered pursuant to Section 4.3(c) of
the separate Note Purchase Agreements (collectively, the "NOTE PURCHASE
AGREEMENT"), each dated as of May 30, 1997, entered into by The O'Gara Company,
an Ohio corporation, with each of the purchasers listed on Schedule A thereto
(collectively, the "PURCHASERS"). The terms used in this Certificate and not
defined herein have the respective meanings specified in the Note Purchase
Agreement.
2. Attached hereto as Attachment A is a true and correct copy of
resolutions adopted by the Board of Directors of the Company on May 20, 1997,
and such resolutions set forth in Attachment A hereto were duly adopted by said
Board of Directors and are in full force and effect on and as of the date
hereof, not having been amended, altered or repealed, and such resolutions are
filed with the records of the Board of Directors.
3. Attached hereto as Attachment B is a true, correct and complete copy
of the bylaws of the Company as in full force and effect on and as of the date
hereof, which bylaws have been in full effect in said form at all times from May
20, 1997 to the date hereof, inclusive, without modification or amendment in any
respect.
4. Each of the following named persons is and has been a duly elected,
qualified and acting officer of the Company holding the office or offices set
forth below opposite his name from May 20, 1997 to the date hereof, inclusive:
Name Office Signature
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ Executive Vice President /s/
and Treasurer -------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Vice President and /s/
Secretary ------------------------
5. The signature appearing opposite the name of each such person set
forth above is his or her genuine signature.
FORM OF SECRETARY'S CERTIFICATE
Exhibit 4.3(c)-1
103
6. Attached hereto as Attachment C is a true, correct and complete copy
of the certificate of incorporation of the Company as in full force and effect
on and as of the date hereof, certified by the Secretary of State of the State
of Delaware, which certificate of incorporation has been in full effect in said
form at all times from May 20, 1997 to the date hereof, inclusive, without
modification or amendment in any respect.
IN WITNESS WHEREOF, I have hereunto set my hand on ____________, 1997.
[NAME OF GUARANTOR]
____________________
Secretary
FORM OF INITIAL GUARANTOR SECRETARY'S CERTIFICATE
Exhibit 4.3(c)-2
104
ATTACHMENT A
RESOLUTIONS OF THE BOARD OF DIRECTORS
[To be provided by the Company.]
FORM OF INITIAL GUARANTOR SECRETARY'S CERTIFICATE
105
ATTACHMENT B
BYLAWS OF THE COMPANY
[To be supplied by Company.]
FORM OF INITIAL GUARANTOR SECRETARY'S CERTIFICATE
106
ATTACHMENT C
CERTIFICATE OF INCORPORATION OF THE COMPANY
[To be supplied by Company.]
FORM OF INITIAL GUARANTOR SECRETARY'S CERTIFICATE
107
EXHIBIT 4.4(A)
FORM OF OPINION OF COUNSEL TO THE COMPANY
[LETTERHEAD OF COMPANY'S COUNSEL]
[Closing Date]
To the Persons Listed on
Annex 1 hereto
Re: The O'Gara Company (the "COMPANY")
Ladies and Gentlemen:
Reference is made to the separate Note Purchase Agreements dated as of
May 30, 1997 (collectively, the "NOTE PURCHASE AGREEMENT"), between the Company
and each of the purchasers listed on Schedule A attached thereto (the
"PURCHASERS"), which provide, among other things, for the issuance and sale by
the Company of its Senior Notes due May 30, 2004, in the aggregate principal
amount of Thirty-Five Million Dollars ($35,000,000). The capitalized terms used
herein and not defined herein have the meanings assigned to them by or pursuant
to the terms of the Note Purchase Agreement.
We have acted as special counsel to the Company in connection with the
transactions contemplated by the Note Purchase Agreement. This opinion is
delivered to you pursuant to Section 4.4(a) of the Note Purchase Agreement. In
acting as such counsel, we have examined:
(a) the Note Purchase Agreement;
(b) the Company's Senior Notes due May 30, 2004, dated the
date hereof, in the form of Exhibit 1 to the Note Purchase Agreement,
and in the principal amounts and with the registration numbers set
forth on Schedule A to the Note Purchase Agreement (the "NOTES");
(c) the documents executed and delivered by the Company in
connection with the transactions contemplated by the Note Purchase
Agreement;
(d) the code of regulations and minute books of the Company
and a certified copy of the articles of incorporation of the Company,
as in effect on the date hereof;
FORM OF OPINION OF COUNSEL TO THE COMPANY
Exhibit 4.4(a)-1
108
(e) a good standing certificate for the Company from the State
of Ohio and good standing certificates for each Subsidiary organized
under the laws of any state of the United States (the "SUBSIDIARIES")
from their respective states of incorporation;
(f) a letter to ▇▇▇▇ & ▇▇▇▇▇▇ and ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
from ▇▇▇▇▇▇, Read & Co. Inc., describing the manner of the offering of
the Notes (the "OFFEREE LETTER");
(g) the opinion of ▇▇▇▇ & ▇▇▇▇▇▇, counsel to the Purchasers,
dated the date hereof; and
(h) originals, or copies certified or otherwise identified to
our satisfaction, of such other documents, records, instruments and
certificates of public officials as we have deemed necessary or
appropriate to enable us to render this opinion.
In rendering our opinion, we have relied, to the extent we deem
necessary and proper, on:
(i) warranties and representations as to factual matters
contained in the Note Purchase Agreement;
(ii) the Offeree Letter; and
(iii) said opinion of ▇▇▇▇ & ▇▇▇▇▇▇ with respect to all
matters governed by New York law.
We have no actual knowledge of any material inaccuracies in any of the facts
contained in the documents listed in clause (i) or clause (ii).
Our opinion is based upon the laws of the State of Ohio and federal
law. If the Note Purchase Agreement and the Notes were governed by the laws of
the State of Ohio, our opinion would not vary materially from that set forth
below.
Based on the foregoing, we are of the following opinions:
1. Each of the Company and the Subsidiaries is a corporation duly
incorporated, validly existing and in good standing under the laws of its state
of incorporation and has all requisite corporate power and authority to carry on
its business and own its property.
2. All consents, approvals and authorizations of, and all designations,
declarations, filings, registrations, qualifications, or recordations with,
Governmental Authorities required on the part of each of the Company and the
Subsidiaries have been obtained in connection with the ownership of its
properties and the conduct of its businesses, except where the failure to obtain
any such consent, approval or authorization with respect to such ownership
FORM OF OPINION OF COUNSEL TO THE COMPANY
Exhibit 4.4(a)-2
109
and conduct would not have a material adverse effect on the ability of the
Company to perform its obligations under the Note Purchase Agreement and the
Notes.
3. There is no default or existing condition which with the passage of
time or notice, or both, would result in a default by the Company or any
Subsidiary under any contract, lease or commitment known to us to which any one
or more of the Company or any Subsidiary is a party or by which their respective
properties may be bound, except where such default would not have a material
adverse effect on the ability of the Company to perform its obligations set
forth in the Note Purchase Agreement and the Notes.
4. To the best of our knowledge after due inquiry, there is no
judgment, order, action, suit, proceeding, inquiry, order or investigation, at
law or in equity, before any court or Governmental Authority, arbitration board
or tribunal, pending or threatened against the Company or any one or more of the
Subsidiaries, except for any such judgment, order, action, suit, proceeding,
inquiry, order or investigation that would not have a material adverse effect on
the ability of the Company to perform its obligations under the Note Purchase
Agreement and the Notes.
5. The Company has the requisite corporate power and authority to
execute and deliver the Note Purchase Agreement, to issue and sell the Notes,
and to perform its obligations set forth in each of the Note Purchase Agreement
and the Notes.
6. Each of the Note Purchase Agreement and the Notes has been duly
authorized by all necessary corporate action on the part of the Company (no
action on the part of the stockholders of the Company being required in respect
thereof), has been executed and delivered by a duly authorized officer of the
Company, and constitutes a legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms.
7. The execution and delivery of the Note Purchase Agreement and the
Notes, and the issue and sale of the Notes, by the Company and the performance
by the Company of its obligations thereunder will not conflict with, constitute
a violation of, result in a breach of any provision of, constitute a default
under, or result in the creation or imposition of any Lien or encumbrance upon
any of its property or the property of a Subsidiary pursuant to the charter, or
bylaws or code of regulations, as the case may be, of the Company or such
Subsidiary, any applicable statute, rule or regulation to which the Company or
any Subsidiary is subject, or, to the best of our knowledge after due inquiry,
any agreement or instrument to which the Company or such Subsidiary is a party
or by which its respective properties may be bound.
8. All consents, approvals and authorizations of, and all designations,
declarations, filings, registrations, qualifications and recordations with,
Governmental Authorities required on the part of the Company have been obtained
in connection with the execution and delivery of each of the Note Purchase
Agreement and the Notes and the issue and sale of the Notes.
FORM OF OPINION OF COUNSEL TO THE COMPANY
Exhibit 4.4(a)-3
110
9. Under existing law, the Notes are not subject to the registration
requirements under the Securities Act of 1933, as amended or the "Blue Sky" laws
of the State of Ohio, and the Company is not required to qualify an indenture
with respect thereto under the Trust Indenture Act of 1939, as amended.
10. Neither the issuance of the Notes nor the intended use of the
proceeds of the Notes (as set forth in Schedule 5.14 of the Note Purchase
Agreement) will violate Regulations G, T or X of the Federal Reserve Board.
11. The Company
(a) is not an "investment company" within the meaning of the
Investment Company Act of 1940, as amended, and
(b) is not a "holding company" or an "affiliate" of a "holding
company," or a "subsidiary company" of a "holding company," or a
"public utility" within the meaning of the Public Utility Holding
Company Act of 1935, as amended.
12. The Company has good title to all of the shares it purports to own
of the capital stock of each Subsidiary, free and clear in each case of any
perfected security interest, and to the best of our knowledge after due inquiry,
any other Lien.
All opinions herein contained with respect to the enforceability of
documents and instruments are qualified to the extent that:
(a) the availability of equitable remedies, including without
limitation, specific enforcement and injunctive relief, is subject to
the discretion of the court before which any proceedings therefor may
be brought; and
(b) the enforceability of certain terms provided in the Note
Purchase Agreement and the Notes may be limited by
(i) applicable bankruptcy, reorganization,
arrangement, insolvency, moratorium, fraudulent conveyance or
similar laws affecting the enforcement of creditors' rights
generally as at the time in effect, and
(ii) general principles of equity and the discretion
of a court in granting equitable remedies (whether
enforceability is considered in a proceeding at law or in
equity).
We acknowledge that this opinion is being issued at the request of the
Company pursuant to Section 4.4(a) of the Note Purchase Agreement and we agree
that the parties listed on Annex 1
FORM OF OPINION OF COUNSEL TO THE COMPANY
Exhibit 4.4(a)-4
111
hereto may rely and acknowledge that they are relying hereon in connection with
the consummation of the transactions contemplated by the Note Purchase
Agreement. ▇▇▇▇ & ▇▇▇▇▇▇ may rely on this opinion for the sole purpose of
rendering their opinion to be rendered pursuant to Section 4.4(b) of the Note
Purchase Agreement.
We are admitted to the Bar in the State of Ohio. We express no opinion
as to the law of any jurisdiction other than the law of such State and United
States federal law.
Very truly yours,
FORM OF OPINION OF COUNSEL TO THE COMPANY
Exhibit 4.4(a)-5
112
ANNEX 1
ADDRESSEES
[Purchasers]
▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
FORM OF OPINION OF COUNSEL TO THE COMPANY
Exhibit 4.4(a)-6
113
EXHIBIT 4.4(b)
FORM OF OPINION OF SPECIAL COUNSEL TO THE PURCHASERS
[LETTERHEAD OF ▇▇▇▇ & ▇▇▇▇▇▇]
[Closing Date]
To the Persons Listed on
Annex 1 hereto
Re: The O'Gara Company (the "COMPANY")
Ladies and Gentlemen:
Reference is made to the separate Note Purchase Agreements dated as of
May 30, 1997 (collectively, the "NOTE PURCHASE AGREEMENT"), between the Company
and each of the purchasers listed on Schedule A attached thereto (the
"PURCHASERS"), which provide, among other things, for the issuance and sale by
the Company of its Senior Notes due May 30, 2004, in the aggregate principal
amount of Thirty-Five Million Dollars ($35,000,000). The capitalized terms used
herein and not defined herein have the meanings assigned to them by or pursuant
to the terms of the Note Purchase Agreement.
We have acted as special counsel to the Purchasers in connection with
the transactions contemplated by the Note Purchase Agreement. This opinion is
delivered to you pursuant to Section 4.4(b) of the Note Purchase Agreement. In
acting as such counsel, we have examined:
(a) the Note Purchase Agreement;
(b) the Company's Senior Notes due May 30, 2004, dated the
date hereof, in the form of Exhibit 1 to the Note Purchase Agreement,
and in the principal amounts and with the registration numbers set
forth on Schedule A to the Note Purchase Agreement (the "NOTES");
(c) the Guaranty Agreement, dated the date hereof (the
"GUARANTY AGREEMENT"), executed and delivered by ▇'▇▇▇▇-▇▇▇▇ &
▇▇▇▇▇▇▇▇▇▇ Armoring Company, a Delaware corporation, O'Gara Satellite
Networks, Inc., a Delaware corporation, and O'Gara Security
International, Inc., a Delaware corporation (each an "INITIAL
GUARANTOR" and, collectively, the "INITIAL GUARANTORS");
FORM OF OPINION OF SPECIAL
COUNSEL TO THE PURCHASERS
Exhibit 4.4(b)-1
114
(d) an Officer's Certificate of the Company, dated the date
hereof;
(e) a certificate of the Secretary of the Company, dated the
date hereof;
(f) a certificate of the Secretary of each of the Initial
Guarantors, dated the date hereof;
(g) a letter to ▇▇▇▇ & ▇▇▇▇▇▇ and ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
from ▇▇▇▇▇▇, Read & Co. Inc., dated the date hereof, making certain
representations with respect to the manner in which the Notes were
offered (the "OFFEREE LETTER");
(h) the opinion of ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, counsel to
the Company and the Initial Guarantors, dated the date hereof; and
(i) originals, or copies certified or otherwise identified to
our satisfaction, of such other documents, records, instruments and
certificates of public officials as we have deemed necessary or
appropriate to enable us to render this opinion.
In rendering our opinion, we have assumed that all signatures are
genuine, that all documents submitted to us as originals are genuine, that all
copies submitted to us conform to the originals, that all natural Persons have
legal capacity, and as to documents executed by or on behalf of Persons other
than the Company and the Initial Guarantors,
(i) that each such Person executing documents had the power to
enter into and perform its obligations under such documents, and
(ii) that such documents have been duly authorized, executed
and delivered by, and are binding upon and enforceable against, such
Persons.
In addition, we have assumed that each of the Initial Guarantors
received fair consideration and reasonably equivalent value in exchange for
executing the Guaranty Agreement.
In rendering our opinion, we have relied, to the extent we deem
necessary and proper, on:
(a) warranties and representations as to certain factual
matters contained in the Note Purchase Agreement and the Guaranty
Agreement;
(b) the Offeree Letter; and
(c) said opinion of ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ with respect
to all questions governed by Ohio and Delaware law and with respect to
all questions concerning the due
FORM OF OPINION OF SPECIAL
COUNSEL TO THE PURCHASERS
Exhibit 4.4(b)-2
115
incorporation, valid existence and good standing of, and the
authorization, execution and delivery of instruments by, the Company
and each of the Initial Guarantors (except that we have made an
independent examination of a certified copy of the articles or
certificate of incorporation of the Company and each of the Initial
Guarantors, and certificates of officers of the Company and each of the
Initial Guarantors setting forth their respective code of regulations
or bylaws and corporate resolutions authorizing the participation by
such entities in the transactions contemplated by the Note Purchase
Agreement and the Guaranty Agreement); based on such investigation as
we have deemed appropriate, said opinion is satisfactory in form and
scope to us and in our opinion the Purchasers and we are justified in
relying thereon. As to such opinion and the matters therein upon which
we are relying, we incorporate herein the assumptions and
qualifications to such opinion set forth therein.
Based on the foregoing, we are of the following opinions:
1. (a) The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Ohio.
(b) Each of the Initial Guarantors is a corporation duly
incorporated, validly existing and in good standing under the laws of
the State of Delaware.
2. (a) The Company has the requisite corporate power and
authority to execute and deliver the Note Purchase Agreement, to issue
and sell the Notes, and to perform its obligations set forth in each of
the Note Purchase Agreement and the Notes.
(b) Each of the Initial Guarantors has the requisite corporate
power and authority to execute and deliver the Guaranty Agreement and
to perform its obligations set forth therein.
3. (a) Each of the Note Purchase Agreement and the Notes has been
duly authorized by all necessary corporate action on the part of the
Company, has been executed and delivered by a duly authorized officer
of the Company, and constitutes a legal, valid and binding obligation
of the Company, enforceable against the Company in accordance with its
terms.
(b) The Guaranty Agreement has been duly authorized by all
necessary corporate action on the part of each of the Initial
Guarantors, has been executed and delivered by a duly authorized
officer of each of the Initial Guarantors, and constitutes a legal,
valid and binding obligation of each of the Initial Guarantors,
enforceable against each such Initial Guarantor in accordance with its
terms.
FORM OF OPINION OF SPECIAL
COUNSEL TO THE PURCHASERS
Exhibit 4.4(b)-3
116
4. (a) The execution and delivery of the Note Purchase Agreement
and the Notes, and the issue and sale of the Notes, by the Company and
the performance by the Company of its obligations thereunder will not
conflict with, result in a breach of any provision of, constitute a
default under, or result in the creation or imposition of any Lien upon
any of its properties pursuant to, the articles of incorporation or
code of regulations of the Company.
(b) The execution and delivery of the Guaranty Agreement by
each of the Initial Guarantors, and the performance by each of the
Initial Guarantors of its obligations thereunder will not conflict
with, result in a breach of any provision of, constitute a default
under, or result in the creation or imposition of any Lien upon any of
the properties of any such Initial Guarantor pursuant to, the
certificate of incorporation or bylaws of any such Initial Guarantor.
5. No consents, approvals or authorizations of governmental authorities
are required on the part of the Company under the laws of the United States of
America or the State of New York in connection with the execution and delivery
of each of the Note Purchase Agreement and the Notes, and the offer, issue, sale
and delivery of the Notes. Our opinion in this paragraph 5 is based solely on a
review of generally applicable laws of the United States of America and the
State of New York, and not on any search with respect to, or review of, any
orders, decrees, judgments or other determinations specifically applicable to
the Company.
6. Under existing law, the issuance and sale of the Notes is not
subject to the registration requirements under the Securities Act of 1933, as
amended or the "Blue Sky" laws of the State of New York, and the Company is not
required to qualify an indenture with respect thereto under the Trust Indenture
Act of 1939, as amended.
All opinions herein contained with respect to the enforceability of
documents and instruments are qualified to the extent that:
(a) the availability of equitable remedies, including without
limitation, specific enforcement and injunctive relief, is subject to
the discretion of the court before which any proceedings therefor may
be brought; and
(b) the enforceability of certain terms provided in the Note
Purchase Agreement and the Notes may be limited by
(i) applicable bankruptcy, reorganization,
arrangement, insolvency, fraudulent conveyance, moratorium or
similar laws affecting the enforcement of creditors' rights
generally as at the time in effect, and
FORM OF OPINION OF SPECIAL
COUNSEL TO THE PURCHASERS
Exhibit 4.4(b)-4
117
(ii) common law or statutory requirements with
respect to commercial reasonableness.
We express no opinion as to the law of any jurisdiction other than the
law of New York, United States federal law and, in reliance on the opinion of
▇▇▇▇, Stettinius & Hollister, the law of Delaware and Ohio.
Subsequent holders of the Notes may rely on this opinion as if it were
addressed to them.
Very truly yours,
FORM OF OPINION OF SPECIAL
COUNSEL TO THE PURCHASERS
Exhibit 4.4(b)-5
118
ANNEX 1
ADDRESSEES
Connecticut General Life Insurance Company
c/o CIGNA Investments, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Life Insurance Company of North America
c/o CIGNA Investments, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Massachusetts Mutual Life Insurance Company
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
The Travelers Insurance Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
The Guardian Life Insurance Company of America
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Note(1): Pro forma results reflect the historical acquisition of ▇▇▇▇▇,
Next and ITI as if they occurred at the beginning of each year
presented.
FORM OF OPINION OF SPECIAL
COUNSEL TO THE PURCHASERS
Exhibit 4.4(b)-6