MARTEN TRANSPORT, LTD.
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As of October 30, 1998
The Prudential Insurance Company
of America ("PRUDENTIAL")
Each Prudential Affiliate (as hereinafter
defined) which becomes bound by certain
provisions of this Agreement as hereinafter
provided (together with Prudential, the "PURCHASERS")
c/o Prudential Capital Group
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Ladies and Gentlemen:
The undersigned, MARTEN TRANSPORT, LTD., a Delaware
corporation (herein called the "COMPANY"), hereby agrees with you as set
forth below. Reference is made to paragraph 10 hereof for definitions of
capitalized terms used herein and not otherwise defined herein.
1. AUTHORIZATION OF ISSUE OF NOTES.
1A. AUTHORIZATION OF ISSUE OF SERIES A NOTES. The Company will
authorize the issue of its senior promissory notes (the "SERIES A NOTES") in
the aggregate principal amount of $25,000,000, to be dated the date of issue
thereof, to mature October 30, 2008, to bear interest on the unpaid balance
thereof from the date thereof until the principal thereof shall have become
due and payable at the rate of 6.78% per annum and on overdue principal,
Yield-Maintenance Amount and interest at the rate specified therein, and to
be substantially in the form of EXHIBIT A-1 attached hereto. The terms
"SERIES A NOTE" and "SERIES A NOTES" as used herein shall include each Series
A Note delivered pursuant to any provision of this Agreement and each Series
A Note delivered in substitution or exchange for any such Series A Note
pursuant to any such provision.
1B. AUTHORIZATION OF ISSUE OF SHELF NOTES. The Company will
authorize the issue of its additional senior promissory notes (the "SHELF
NOTES") in the aggregate principal amount of $15,000,000, to be dated the date
of issue thereof, to mature, in the case of each Shelf
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Note so issued, no more than 15 years after the date of original issuance
thereof, to have an average life, in the case of each Shelf Note so issued,
of no more than 10 years after the date of original issuance thereof, to bear
interest on the unpaid balance thereof from the date thereof at the rate per
annum, and to have such other particular terms, as shall be set forth, in the
case of each Shelf Note so issued, in the Confirmation of Acceptance with
respect to such Shelf Note delivered pursuant to paragraph 2B(5), and to be
substantially in the form of EXHIBIT A-2 attached hereto. The terms "SHELF
NOTE" and "SHELF NOTES" as used herein shall include each Shelf Note
delivered pursuant to any provision of this Agreement and each Shelf Note
delivered in substitution or exchange for any such Shelf Note pursuant to any
such provision. The terms "NOTE" and "NOTES" as used herein shall include
each Series A Note and each Shelf Note delivered pursuant to any provision of
this Agreement and each Note delivered in substitution or exchange for any
such Note pursuant to any such provision. Notes which have (i) the same
final maturity, (ii) the same principal prepayment dates, (iii) the same
principal prepayment amounts (as a percentage of the original principal
amount of each Note), (iv) the same interest rate, (v) the same interest
payment periods and (vi) the same date of issuance (which, in the case of a
Note issued in exchange for another Note, shall be deemed for these purposes
the date on which such Note's ultimate predecessor Note was issued), are
herein called a "SERIES" of Notes.
2. PURCHASE AND SALE OF NOTES.
2A. PURCHASE AND SALE OF SERIES A NOTES. The Company hereby
agrees to sell to Prudential and, subject to the terms and conditions herein
set forth, Prudential agrees to purchase from the Company $25,000,000
aggregate principal amount of Series A Notes at 100% of such aggregate
principal amount. On October 30, 1998 (herein called the "SERIES A CLOSING
DAY"), the Company will deliver to Prudential at the offices of Prudential
Capital Group, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, one
or more Series A Notes registered in its name, evidencing the aggregate
principal amount of Series A Notes to be purchased by Prudential and in the
denomination or denominations specified with respect to Prudential in the
Purchaser Schedule attached hereto, against payment of the purchase price
thereof by transfer of immediately available funds for credit to the
account(s) designated by the Company pursuant to a disbursement direction
letter in the form of EXHIBIT E attached hereto.
2B. PURCHASE AND SALE OF SHELF NOTES.
2B(1). FACILITY. Prudential is willing to consider, in its sole
discretion and within limits which may be authorized for purchase by
Prudential from time to time, the purchase of Shelf Notes pursuant to this
Agreement. The willingness of Prudential to consider such purchase of Shelf
Notes is herein called the "FACILITY". At any time, the aggregate principal
amount of Shelf Notes stated in paragraph 1B, MINUS the aggregate principal
amount of Shelf Notes purchased and sold pursuant to this Agreement prior to
such time, MINUS the aggregate principal amount of Accepted Notes (as
hereinafter defined) which have not yet been purchased and sold hereunder
prior to such time, is herein called the "AVAILABLE FACILITY AMOUNT" at such
time. NOTWITHSTANDING THE WILLINGNESS OF PRUDENTIAL TO CONSIDER PURCHASES OF
SHELF NOTES, THIS AGREEMENT IS ENTERED INTO ON THE EXPRESS
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UNDERSTANDING THAT NEITHER PRUDENTIAL NOR ANY PRUDENTIAL AFFILIATE SHALL BE
OBLIGATED TO MAKE OR ACCEPT OFFERS TO PURCHASE SHELF NOTES, OR TO QUOTE
RATES, SPREADS OR OTHER TERMS WITH RESPECT TO SPECIFIC PURCHASES OF SHELF
NOTES, AND THE FACILITY SHALL IN NO WAY BE CONSTRUED AS A COMMITMENT BY
PRUDENTIAL OR ANY PRUDENTIAL AFFILIATE.
2B(2). ISSUANCE PERIOD. Shelf Notes may be issued and sold
pursuant to this Agreement until the earlier of (i) the third anniversary of
the date of this Agreement (or if such anniversary date is not a Business
Day, the Business Day next preceding such anniversary) and (ii) the thirtieth
day after Prudential shall have given to the Company, or the Company shall
have given to Prudential, a written notice stating that it elects to
terminate the issuance and sale of Shelf Notes pursuant to this Agreement (or
if such thirtieth day is not a Business Day, the Business Day next preceding
such thirtieth day). The period during which Shelf Notes may be issued and
sold pursuant to this Agreement is herein called the "ISSUANCE PERIOD".
2B(3). REQUEST FOR PURCHASE. The Company may from time to time
during the Issuance Period make requests for purchases of Shelf Notes (each
such request being herein called a "REQUEST FOR PURCHASE"). Each Request for
Purchase shall be made to Prudential by telecopier or overnight delivery
service, and shall (i) specify the aggregate principal amount of Shelf Notes
covered thereby, which shall not be less than $5,000,000 and not be greater
than the Available Facility Amount at the time such Request for Purchase is
made, (ii) specify the principal amounts, final maturities, principal
prepayment dates and amounts and interest payment periods (quarterly or
semi-annual in arrears) of the Shelf Notes covered thereby, (iii) specify the
use of proceeds of such Shelf Notes, (iv) specify the proposed day for the
closing of the purchase and sale of such Shelf Notes, which shall be a
Business Day during the Issuance Period not less than 10 days and not more
than 25 days after the making of such Request for Purchase, (v) specify the
number of the account and the name and address of the depository institution
to which the purchase prices of such Shelf Notes are to be transferred on the
Closing Day for such purchase and sale, (vi) certify that the representations
and warranties contained in paragraph 8 are true on and as of the date of
such Request for Purchase and that there exists on the date of such Request
for Purchase no Event of Default or Default, (vii) specify whether the fee to
be due pursuant to paragraph 2B(8)(ii) should be included in the rate quotes
Prudential may provide pursuant to paragraph 2B(4) or will be paid separately
by the Company on the Closing Day for such purchase and sale, and (viii) be
substantially in the form of EXHIBIT B attached hereto. Each Request for
Purchase shall be in writing and shall be deemed made when received by
Prudential.
2B(4). RATE QUOTES. Not later than five Business Days after the
Company shall have given Prudential a Request for Purchase pursuant to
paragraph 2B(3), Prudential may, but shall be under no obligation to, provide
to the Company by telephone or telecopier, in each case between 9:30 A.M. and
1:30 P.M. New York City local time (or such later time as Prudential may
elect) interest rate quotes for the several principal amounts, maturities,
principal prepayment schedules, and interest payment periods of Shelf Notes
specified in such Request for Purchase. Each quote shall represent the
interest rate per annum payable on the outstanding principal balance
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of such Shelf Notes at which Prudential or a Prudential Affiliate would be
willing to purchase such Shelf Notes at 100% of the principal amount thereof.
2B(5). ACCEPTANCE. Within the Acceptance Window, the Company may,
subject to paragraph 2B(6), elect to accept such interest rate quotes as to
not less than $5,000,000 aggregate principal amount of the Shelf Notes
specified in the related Request for Purchase. Such election shall be made
by an Authorized Officer of the Company notifying Prudential by telephone or
telecopier within the Acceptance Window that the Company elects to accept
such interest rate quotes, specifying the Shelf Notes which will in the
aggregate be not less than $5,000,000 in principal amount (each such Shelf
Note being herein called an "ACCEPTED NOTE") as to which such acceptance
(herein called an "ACCEPTANCE") relates. The day the Company notifies
Prudential of an Acceptance with respect to any Accepted Notes is herein
called the "ACCEPTANCE DAY" for such Accepted Notes. Any interest rate
quotes as to which Prudential does not receive an Acceptance within the
Acceptance Window shall expire, and no purchase or sale of Shelf Notes
hereunder shall be made based on such expired interest rate quotes. Subject
to paragraph 2B(6) and the other terms and conditions hereof, the Company
agrees to sell to Prudential or a Prudential Affiliate, and Prudential agrees
to purchase, or to cause the purchase by a Prudential Affiliate of, the
Accepted Notes at 100% of the principal amount of such Notes. As soon as
practicable following the Acceptance Day, the Company, Prudential and each
Prudential Affiliate which is to purchase any such Accepted Notes will
execute a confirmation of such Acceptance substantially in the form of
EXHIBIT C attached hereto (herein called a "CONFIRMATION OF ACCEPTANCE"). If
the Company should fail to execute and return to Prudential within three
Business Days following receipt thereof a Confirmation of Acceptance with
respect to any Accepted Notes, Prudential may at its election at any time
prior to its receipt thereof cancel the closing with respect to such Accepted
Notes by so notifying the Company in writing.
2B(6). MARKET DISRUPTION. Notwithstanding the provisions of
paragraph 2B(5), if Prudential shall have provided interest rate quotes
pursuant to paragraph 2B(4) and thereafter prior to the time an Acceptance
with respect to such quotes shall have been notified to Prudential in
accordance with paragraph 2B(5) the domestic market for U.S. Treasury
securities or derivatives shall have closed or there shall have occurred a
general suspension, material limitation, or significant disruption of trading
in securities generally on the New York Stock Exchange or in the domestic
market for U.S. Treasury securities or derivatives, then such interest rate
quotes shall expire, and no purchase or sale of Shelf Notes hereunder shall
be made based on such expired interest rate quotes. If the Company
thereafter notifies Prudential of the Acceptance of any such interest rate
quotes, such Acceptance shall be ineffective for all purposes of this
Agreement, and Prudential shall promptly notify the Company that the
provisions of this paragraph 2B(6) are applicable with respect to such
Acceptance.
2B(7). FACILITY CLOSINGS. Not later than 11:30 A.M. (New York City
local time) on the Closing Day for any Accepted Notes, the Company will
deliver to each Purchaser listed in the Confirmation of Acceptance relating
thereto at the offices of the Prudential Capital Group, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Law Department, the Accepted
Notes to be purchased by such Purchaser in the form of one or more Notes in
authorized
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denominations as such Purchaser may request for each Series of Accepted Notes
to be purchased on the Closing Day, dated the Closing Day and registered in
such Purchaser's name (or in the name of its nominee), against payment of the
purchase price thereof by transfer of immediately available funds for credit
to the Company's account specified in the Request for Purchase of such Notes.
If the Company fails to tender to any Purchaser the Accepted Notes to be
purchased by such Purchaser on the scheduled Closing Day for such Accepted
Notes as provided above in this paragraph 2B(7), or any of the conditions
specified in paragraph 3 shall not have been fulfilled by the time required
on such scheduled Closing Day, the Company shall, prior to 1:00 P.M., New
York City local time, on such scheduled Closing Day notify Prudential (which
notification shall be deemed received by each Purchaser) in writing whether
(i) such closing is to be rescheduled (such rescheduled date to be a Business
Day during the Issuance Period not less than one Business Day and not more
than 10 Business Days after such scheduled Closing Day (the "RESCHEDULED
CLOSING DAY")) and certify to Prudential (which certification shall be for
the benefit of each Purchaser) that the Company reasonably believes that it
will be able to comply with the conditions set forth in paragraph 3 on such
Rescheduled Closing Day and that the Company will pay the Delayed Delivery
Fee in accordance with paragraph 2B(8)(iii) or (ii) such closing is to be
canceled. In the event that the Company shall fail to give such notice
referred to in the preceding sentence, Prudential (on behalf of each
Purchaser) may at its election, at any time after 1:00 P.M., New York City
local time, on such scheduled Closing Day, notify the Company in writing that
such closing is to be canceled. Notwithstanding anything to the contrary
appearing in this Agreement, the Company may not elect to reschedule a
closing with respect to any given Accepted Notes on more than one occasion,
unless Prudential shall have otherwise consented in writing.
2B(8). FEES.
2B(8)(i). STRUCTURING FEE. At the time of the execution and delivery
of this Agreement by the Company and Prudential, the Company will pay to
Prudential in immediately available funds a fee (herein called the
"STRUCTURING FEE") in the amount of $50,000.
2B(8)(ii). ISSUANCE FEE. The Company will pay to Prudential in
immediately available funds a fee (herein called the "ISSUANCE FEE") on each
Closing Day (other than the Series A Closing Day) in an amount equal to 0.15%
of the aggregate principal amount of Notes sold on such Closing Day, unless
the Company shall have requested pursuant to the applicable Request for
Purchase that such fee be included in the rate quotes Prudential may provide
pursuant to paragraph 2B(4).
2B(8)(iii). DELAYED DELIVERY FEE. If the closing of the purchase and
sale of any Accepted Note is delayed for any reason beyond the original
Closing Day for such Accepted Note, the Company will pay to Prudential (a) on
the Cancellation Date or actual closing date of such purchase and sale and
(b) if earlier than the Cancellation Date or actual closing date, the next
Business Day following 90 days after the Acceptance Day for such Accepted
Note and on each Business Day following 90 days after the prior payment
hereunder, a fee (herein called the "DELAYED DELIVERY FEE") calculated as
follows:
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(BEY - MMY) X DTS/360 X PA
where "BEY" means Bond Equivalent Yield, I.E., the bond equivalent yield per
annum of such Accepted Note; "MMY" means Money Market Yield, I.E., the yield
per annum on a commercial paper investment of the highest quality selected by
Prudential on the date Prudential receives notice of the delay in the closing
for such Accepted Note having a maturity date or dates the same as, or
closest to, the Rescheduled Closing Day or Rescheduled Closing Days (a new
alternative investment being selected by Prudential each time such closing is
delayed); "DTS" means Days to Settlement, I.E., the number of actual days
elapsed from and including the original Closing Day with respect to such
Accepted Note (in the case of the first such payment with respect to such
Accepted Note) or from and including the date of the next preceding payment
(in the case of any subsequent delayed delivery fee payment with respect to
such Accepted Note) to but excluding the date of such payment; and "PA" means
Principal Amount, I.E., the principal amount of the Accepted Note for which
such calculation is being made. In no case shall the Delayed Delivery Fee be
less than zero. Nothing contained herein shall obligate any Purchaser to
purchase any Accepted Note on any day other than the Closing Day for such
Accepted Note, as the same may be rescheduled from time to time in compliance
with paragraph 2B(7).
2B(8)(iv). CANCELLATION FEE. If the Company at any time notifies
Prudential in writing that the Company is canceling the closing of the
purchase and sale of any Accepted Note, or if Prudential notifies the Company
in writing under the circumstances set forth in the last sentence of
paragraph 2B(5) or the penultimate sentence of paragraph 2B(7) that the
closing of the purchase and sale of such Accepted Note is to be canceled, or
if the closing of the purchase and sale of such Accepted Note is not
consummated on or prior to the last day of the Issuance Period (the date of
any such notification, or the last day of the Issuance Period, as the case
may be, being herein called the "CANCELLATION DATE"), the Company will pay to
Prudential in immediately available funds an amount (the "CANCELLATION FEE")
calculated as follows:
PI X PA
where "PI" means Price Increase, I.E., the quotient (expressed in decimals)
obtained by dividing (a) the excess of the ask price (as determined by
Prudential) of the Hedge Treasury Note(s) on the Cancellation Date over the
bid price (as determined by Prudential) of the Hedge Treasury Notes(s) on the
Acceptance Day for such Accepted Note by (b) such bid price; and "PA" has the
meaning ascribed to it in paragraph 2B(8)(iii). The foregoing bid and ask
prices shall be as reported by Telerate Systems, Inc. (or, if such data for
any reason ceases to be available through Telerate Systems, Inc., any
publicly available source of similar market data). Each price shall be based
on a U.S. Treasury security having a par value of $100.00 and shall be
rounded to the second decimal place. In no case shall the Cancellation Fee
be less than zero.
3. CONDITIONS OF CLOSING. The obligation of any Purchaser to
purchase and pay for any Notes is subject to the satisfaction, on or before
the Closing Day for such Notes, of the following conditions:
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3A. CERTAIN DOCUMENTS. Such Purchaser shall have received the
following, each dated the date of the applicable Closing Day:
(i) This Agreement;
(ii) The Note(s) to be purchased by such Purchaser;
(iii) A favorable opinion of ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
LLP, special counsel to the Company (or such other counsel designated by
the Company and acceptable to the Purchaser(s)) satisfactory to such
Purchaser and substantially in the form of EXHIBIT D-1 (in the case of
the Series A Notes) or D-2 (in the case of any Shelf Notes) attached
hereto and as to such other matters as such Purchaser may reasonably
request. The Company hereby directs each such counsel to deliver such
opinion, agrees that the issuance and sale of any Notes will constitute
a reconfirmation of such direction, and understands and agrees that each
Purchaser receiving such an opinion will and is hereby authorized to
rely on such opinion;
(iv) a Secretary's Certificate signed by the Secretary or
an Assistant Secretary and one other officer of the Company certifying,
among other things, (A) as to the names, titles and true signatures of
the officers of the Company authorized to sign this Agreement, the Notes
and the other documents to be delivered in connection with this
Agreement, (B) that attached as Exhibit A thereto is a true, accurate
and complete copy of the Certificate of Incorporation of the Company,
certified by the Secretary of State of Delaware as of a date not more
than five Business Days from the Closing Day, (C) that attached as
Exhibit B thereto is a true, accurate and complete copy of the Company's
Bylaws which were duly adopted and are presently in effect and have been
in effect immediately prior to and at all times since the adoption of
the resolutions referred to in clause (D) below, (D) that attached as
Exhibit C thereto is a true, accurate and complete copy of the
resolutions of the Company's Board of Directors (authorizing the
issuance and sale of the Notes and the execution, delivery and
performance of this Agreement) duly adopted by written action or at a
meeting of the Company's Board of Directors, and such resolutions have
not been rescinded, amended or modified and (E) that attached as Exhibit
D thereto are good standing certificates (or the equivalent thereof) for
the Company from the Secretary of State of Delaware and Wisconsin;
(v) an Officer's Certificate certifying that (A) the
representations and warranties contained in paragraph 8 shall be true on
and as of the Closing Day, except to the extent of changes caused by the
transactions herein contemplated; and (B) on the date of closing no
Event of Default or Default exists;
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(vi) certified copies of Requests for Information or
Copies (Form UCC-11) or equivalent reports listing all effective
financing statements which name the Company or any Subsidiary (under its
present name and previous names used in the last seven years) as debtor
and which are filed in the office of the Secretary of State of Wisconsin
together with copies of such financing statements;
(vii) a disbursement direction letter executed by the
Company in the form of EXHIBIT E attached hereto; and
(viii) Additional documents or certificates with respect to
legal matters or corporate or other proceedings related to the
transactions contemplated hereby as may be reasonably requested by such
Purchaser.
3B. OPINION OF PURCHASER'S SPECIAL COUNSEL. Such Purchaser
shall have received from Wiley ▇. ▇▇▇▇▇, Assistant General Counsel of
Prudential or such other counsel who is acting as special counsel for it in
connection with this transaction, a favorable opinion satisfactory to such
Purchaser as to such matters incident to the matters herein contemplated as
it may reasonably request.
3C. REPRESENTATIONS AND WARRANTIES; NO DEFAULT. The
representations and warranties contained in paragraph 8 shall be true on and
as of such Closing Day, except to the extent of changes caused by the
transactions herein contemplated; there shall exist on such Closing Day no
Event of Default or Default; and the Company shall have delivered to such
Purchaser an Officer's Certificate, dated such Closing Day, to both such
effects.
3D. PURCHASE PERMITTED BY APPLICABLE LAWS. The purchase of and
payment for the Notes to be purchased by such Purchaser on the terms and
conditions herein provided (including the use of the proceeds of such Notes
by the Company) shall not violate any applicable law or governmental
regulation (including, without limitation, Section 5 of the Securities Act or
Regulation U, T or X of the Board of Governors of the Federal Reserve System)
and shall not subject such Purchaser to any tax, penalty, liability or other
onerous condition under or pursuant to any applicable law or governmental
regulation, and such Purchaser shall have received such certificates or other
evidence as it may request to establish compliance with this condition.
3E. PAYMENT OF FEES. The Company shall have paid to Prudential
any fees due it pursuant to or in connection with this Agreement, including
any Structuring Fee due pursuant to paragraph 2B(8)(i), any Issuance Fee due
pursuant to paragraph 2B(8)(ii) and any Delayed Delivery Fee due pursuant to
paragraph 2B(8)(iii).
4. PREPAYMENTS. The Series A Notes and any Shelf Notes shall
be subject to required prepayment as and to the extent provided in paragraphs
4A and 4B, respectively. The Series A Notes and any Shelf Notes shall also
be subject to prepayment under the circumstances set forth in paragraph 4C.
Any prepayment made by the Company pursuant to any
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other provision of this paragraph 4 shall not reduce or otherwise affect its
obligation to make any required prepayment as specified in paragraph 4A or 4B.
4A. REQUIRED PREPAYMENTS OF SERIES A NOTES. Until the Series A
Notes shall be paid in full, the Company shall apply to the prepayment of the
Series A Notes, without Yield-Maintenance Amount, the sum of $3,571,428.57 on
October 30 of each year commencing on October 30, 2002 through and including
October 30, 2008 and such principal amounts of the Series A Notes, together
with interest thereon to the payment dates, shall become due on such payment
dates. Any remaining unpaid principal amount of the Series A Notes, together
with any accrued and unpaid interest, shall become due on the maturity date
of the Series A Notes.
4B. REQUIRED PREPAYMENTS OF SHELF NOTES. Each Series of Shelf
Notes shall be subject to required prepayments, if any, set forth in the
Notes of such Series.
4C. OPTIONAL PREPAYMENT WITH YIELD-MAINTENANCE AMOUNT. The
Notes of each Series shall be subject to prepayment, in whole or in part at
any time (in integral multiples of $100,000 and in a minimum amount of
$5,000,000), at the option of the Company, at 100% of the principal amount so
prepaid plus interest thereon to the prepayment date and the
Yield-Maintenance Amount, if any, with respect to each such Note. Any
partial prepayment of a Series of the Notes pursuant to this paragraph 4C
shall be applied in satisfaction of required payments of principal in inverse
order of their scheduled due dates.
4D. NOTICE OF OPTIONAL PREPAYMENT. The Company shall give the
holder of each Note of a Series to be prepaid pursuant to paragraph 4C
irrevocable written notice of such prepayment not less than 10 Business Days
prior to the prepayment date, specifying such prepayment date, the aggregate
principal amount of the Notes of such Series to be prepaid on such date, the
principal amount of the Notes of such Series held by such holder to be
prepaid on that date and that such prepayment is to be made pursuant to
paragraph 4C. Notice of prepayment having been given as aforesaid, the
principal amount of the Notes specified in such notice, together with
interest thereon to the prepayment date and together with the
Yield-Maintenance Amount, if any, herein provided, shall become due and
payable on such prepayment date. The Company shall, on or before the day on
which it gives written notice of any prepayment pursuant to paragraph 4C,
give telephonic notice of the principal amount of the Notes to be prepaid and
the prepayment date to each Significant Holder which shall have designated a
recipient for such notices in the Purchaser Schedule attached hereto or the
applicable Confirmation of Acceptance or by notice in writing to the Company.
4E. APPLICATION OF PREPAYMENTS. In the case of each prepayment
of less than the entire unpaid principal amount of all outstanding Notes of
any Series pursuant to paragraphs 4A, 4B or 4C, the amount to be prepaid
shall be applied pro rata to all outstanding Notes of such Series (including,
for the purpose of this paragraph 4E only, all Notes prepaid or otherwise
retired or purchased or otherwise acquired by the Company or any of its
Subsidiaries or Affiliates other than by prepayment pursuant to paragraph 4A,
4B or 4C) according to the respective unpaid principal amounts thereof.
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4F. NO ACQUISITION OF NOTES. The Company shall not, and shall
not permit any of its Subsidiaries or Affiliates to, prepay or otherwise
retire in whole or in part prior to their stated final maturity (other than
by prepayment pursuant to paragraphs 4A, 4B or 4C or upon exercise of the put
option pursuant to paragraph 5G, or upon acceleration of such final maturity
pursuant to paragraph 7A), or purchase or otherwise acquire, directly or
indirectly, Notes held by any holder. Any notes so prepaid or otherwise
retired or purchased or otherwise acquired by the Company or any of its
Subsidiaries or Affiliates shall not be deemed to be outstanding for any
purpose under this Agreement, except as provided in paragraph 4E.
5. AFFIRMATIVE COVENANTS. During the Issuance Period and so
long thereafter as any Note is outstanding and unpaid, the Company covenants
as follows:
5A. FINANCIAL STATEMENTS; NOTICE OF DEFAULTS. The Company
covenants that it will deliver to each Significant Holder in triplicate:
(i) as soon as practicable and in any event within 45
days after the end of each quarterly period (other than the last
quarterly period) in each fiscal year consolidated statements of income,
and cash flows and a consolidated statement of shareholders' equity of
the Company and its Subsidiaries for the period from the beginning of
the current fiscal year to the end of such quarterly period, and a
consolidated balance sheet of the Company and its Subsidiaries as at the
end of such quarterly period, setting forth in each case in comparative
form figures for the corresponding period in the preceding fiscal year,
all in reasonable detail and certified by an authorized financial
officer of the Company, subject to changes resulting from year-end
adjustments; PROVIDED, HOWEVER, that delivery pursuant to clause (iii)
below of copies of the Quarterly Report on From 10-Q of the Company for
such quarterly period filed with the Securities and Exchange Commission
shall be deemed to satisfy the requirements of this clause (i);
(ii) as soon as practicable and in any event within 90
days after the end of each fiscal year, consolidated statements of
income and cash flows and a consolidated statement of shareholders'
equity of the Company and its Subsidiaries for such year, and a
consolidated balance sheet of the Company and its Subsidiaries as at the
end of such year, setting forth in each case in comparative form
corresponding consolidated figures from the preceding annual audit, all
in reasonable detail and satisfactory in form to the Required Holder(s)
and, reported on by independent public accountants of recognized
national standing selected by the Company whose report shall be without
limitation as to scope of the audit and satisfactory in substance to the
Required Holder(s); PROVIDED, HOWEVER, that delivery pursuant to clause
(iii) below of copies of the Annual Report on Form 10-K of the Company
for such fiscal year filed with the Securities and Exchange Commission
shall be deemed to satisfy the requirements of this clause (ii);
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(iii) promptly upon transmission thereof, copies of all
such financial statements, proxy statements, notices and reports as it
shall send to its public stockholders and copies of all registration
statements (without exhibits) and all reports which it files with the
Securities and Exchange Commission (or any governmental body or agency
succeeding to the functions of the Securities and Exchange Commission);
(iv) promptly upon receipt thereof, a copy of each other
report submitted to the Company or any Subsidiary by independent
accountants in connection with any annual, interim or special audit made
by them of the books of the Company or any Subsidiary; and
(v) with reasonable promptness, such other information
as such holder may reasonably request.
Together with each delivery of financial statements required by clauses (i)
and (ii) above, the Company will deliver to each Significant Holder an
Officer's Certificate demonstrating (with computations in reasonable detail)
compliance by the Company and its Subsidiaries with the provisions of
paragraph 6 and stating that there exists no Event of Default or Default, or,
if any Event of Default or Default exists, specifying the nature and period
of existence thereof and what action the Company proposes to take with
respect thereto.
The Company also covenants that immediately after any
Responsible Officer obtains knowledge of an Event of Default or Default, it
will deliver to each Significant Holder an Officer's Certificate specifying
the nature and period of existence thereof and what action the Company
proposes to take with respect thereto.
5B. INFORMATION REQUIRED BY RULE 144A. The Company covenants
that it will, upon the request of the holder of any Note, provide such
holder, and any qualified institutional buyer designated by such holder, such
financial and other information as such holder may reasonably determine to be
necessary in order to permit compliance with the information requirements of
Rule 144A under the Securities Act in connection with the resale of Notes,
except at such times as the Company is subject to and in compliance with the
reporting requirements of section 13 or 15(d) of the Exchange Act. For the
purpose of this paragraph 5B, the term "QUALIFIED INSTITUTIONAL BUYER" shall
have the meaning specified in Rule 144A under the Securities Act.
5C. INSPECTION OF PROPERTY. The Company covenants that it will
permit any Person designated by any Significant Holder in writing, at such
Significant Holder's expense, to visit and inspect any of the properties of
the Company and its Subsidiaries, to examine the corporate books and
financial records of the Company and its Subsidiaries and make copies thereof
or extracts therefrom and to discuss the affairs, finances and accounts of
any of such corporations with the principal officers of the Company and,
after the occurrence and during the continuance of an Event of Default, its
independent public accountants, all at such reasonable times and as often as
such Significant Holder may reasonably request.
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5D. COVENANT TO SECURE NOTES EQUALLY. The Company covenants
that, if it or any Subsidiary shall create or assume any Lien upon any of its
property or assets, whether now owned or hereafter acquired, other than Liens
permitted by the provisions of paragraph 6B(1) (unless prior written consent
to the creation or assumption thereof shall have been obtained pursuant to
paragraph 11C), it will make or cause to be made effective provision whereby
the Notes will be secured by such Lien equally and ratably with any and all
other Debt thereby secured so long as any such other Debt shall be so secured.
5E. COMPLIANCE WITH LAWS. The Company covenants that it shall,
and shall cause each Subsidiary to, comply with all applicable laws, rules,
regulations, decrees and orders of all federal, state, local or foreign
courts or governmental agencies, authorities, instrumentalities or regulatory
bodies the noncompliance with which could be reasonably expected to result in
a material adverse effect on the business, assets, operations or condition
(financial or otherwise) of the Company and its Subsidiaries taken as a whole.
5F. MAINTENANCE OF INSURANCE. The Company covenants that it and
each Subsidiary will maintain, with financially sound and reputable insurers,
insurance in such amounts with deductibles and self insurance and against
such liabilities and hazards as customarily is maintained by the other
companies operating similar businesses. Together with each delivery of
financial statements under paragraph 5A, the Company will, upon the request
of any Significant Holder, deliver an Officer's Certificate specifying the
details of such insurance in effect.
5G. CHANGE IN CONTROL PUT OPTION. The Company covenants that
within three Business Days after any Responsible Officer shall obtain
knowledge of the occurrence of a Change in Control Event, the Company shall
provide each holder of Notes written notice thereof, describing in reasonable
detail the facts and circumstances constituting such Change in Control Event.
Following the occurrence of any Change in Control Event, if at any time
prior to 15 Business Days after receipt of notice thereof, the holder of any
Note requests in writing that the Company purchase the Note(s) held by such
holder, the Company shall, on the 20th Business Day after such receipt of
such notice, purchase (and each such holder thereof shall sell) such Note(s)
at a purchase price equal to the aggregate outstanding principal amount
thereof, together with interest thereon to the date of purchase and the
Yield-Maintenance Amount, if any, with respect thereto. No holder of any
Note to be sold pursuant to this paragraph 5G shall be required to make any
representation or warranty in connection with such sale, other than with
respect to its ownership of its Note.
6. NEGATIVE COVENANTS. During the Issuance Period and so long
thereafter as any Note or other amount due hereunder is outstanding and
unpaid, the Company covenants as follows:
6A. MINIMUM INTEREST COVERAGE RATIO. The Company covenants that
it will not permit the ratio of EBITDA to Consolidated interest expense of
the Company and its Subsidiaries calculated on a rolling four quarter basis
to be less than 4.00 to 1.00 at any time.
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6B. LIEN, DEBT AND OTHER RESTRICTIONS. The Company will not and
will not permit any Subsidiary to:
6B(1). LIENS. Create, assume or suffer to exist any Lien upon any
of its properties or assets, whether now owned or hereafter acquired (whether
or not provision is made for the equal and ratable securing of the Notes in
accordance with the provisions of paragraph 5D), EXCEPT:
(i) Liens for taxes, assessments or other governmental
charges not yet due or which are being actively contested in good faith
by appropriate proceedings,
(ii) Liens incidental to the conduct of its business or
the ownership of its property and assets which were not incurred in
connection with the borrowing of money or the obtaining of an advance or
credit, and which do not in the aggregate materially detract from the
value of its property or assets or materially impair the use thereof in
the operation of its business,
(iii) Liens on property or assets of a Subsidiary to
secure obligations of such Subsidiary to the Company or to a
Wholly-Owned Subsidiary,
(iv) Liens in existence on the date hereof and
identified on Schedule 6B(1) hereto securing Debt not in excess of
$15,000,000, but excluding any renewal, extension or increase thereof
after the date hereof,
(v) Liens securing judgments not in excess of $2,000,000
to the extent that the period for appeal of such judgments shall not
have expired or to the extent that such judgment shall have been stayed
or otherwise postponed; and
(vi) other Liens (including Liens consisting of
Capitalized Lease Obligations) provided however that Priority Debt at no
time exceeds 15% of Consolidated Net Worth;
6B(2). DEBT. Create, incur, assume or suffer to exist any Debt,
EXCEPT:
(i) Debt of any Subsidiary owing to the Company or a
Wholly-Owned Subsidiary, and
(ii) other Debt of the Company or Subsidiaries, so long
as (a) Priority Debt at no time exceeds 15% of Consolidated Net Worth
except to the extent otherwise contemplated by paragraph 6B(1)(iv), and
(b) the ratio (expressed as a percentage) of Consolidated Debt of the
Company and its Subsidiaries to Consolidated Adjusted Gross Worth does
not exceed 55% at any time;
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6B(3). MERGER AND CONSOLIDATION. Merge or consolidate with or into
any other Person, EXCEPT that:
(i) any Subsidiary may merge or consolidate with or into
the Company, PROVIDED that the Company is the continuing or surviving
corporation,
(ii) any Subsidiary may merge or consolidate with or into
a Wholly-Owned Subsidiary, and
(iii) the Company may merge with any other solvent
corporation, so long as the Company shall be the continuing or surviving
corporation, PROVIDED that no Default or Event of Default exists or
would exist immediately after giving effect to any such merger;
6B(4). TRANSFER OF ASSETS. Transfer any of its assets EXCEPT that:
(i) the Company and Subsidiaries may sell or exchange
assets (including used equipment) in the ordinary course of business,
(ii) any Subsidiary may Transfer assets to the Company or
a Wholly-Owned Subsidiary, and
(iii) the Company or any Subsidiary may otherwise Transfer
assets, PROVIDED that after giving effect thereto the sum of such other
assets Transferred in any fiscal year did not, as a whole (a) contribute
more than 10% of Consolidated Net Income of the Company and its
Subsidiaries (before extraordinary gains or losses) for any of the three
most recently ended fiscal years or (b) constitute more than 10% of
Consolidated total assets of the Company and its Subsidiaries as of the
beginning of such fiscal year;
6B(5). SALE OR DISCOUNT OF RECEIVABLES. Sell with recourse, or
discount or otherwise sell for less than the face value thereof, or subject
to a Lien, any of its notes or accounts receivable other than receivables
which are doubtful in accordance with generally accepted accounting
principles;
6B(6). ISSUANCE OF STOCK BY SUBSIDIARIES. Permit any Subsidiary to
issue, sell or dispose of any shares of its stock of any class except to the
Company or a Wholly-Owned Subsidiary, and except that any Subsidiary which
does not own any shares of stock of any other Subsidiary may issue to Persons
other than the Company or another Subsidiary shares of stock of a class which
has no priority over any other class as to dividends or in liquidation if,
after giving effect thereto, the issuing corporation shall continue to be a
Subsidiary and no Default or Event of Default would exist; or
14
6B(7). RELATED PARTY TRANSACTIONS. Directly or indirectly,
purchase, acquire or lease any property from, or sell, transfer or lease any
property to, or otherwise deal with, in the ordinary course of business or
otherwise, any Related Party; PROVIDED that the foregoing shall not prohibit
transactions which are engaged in the ordinary course of business and are on
terms demonstrably no less favorable to the Company or a Subsidiary (as the
case may be) than would be available in an "arm's-length" transaction.
7. EVENTS OF DEFAULT.
7A. ACCELERATION. If any of the following events shall occur
and be continuing for any reason whatsoever (and whether such occurrence
shall be voluntary or involuntary or come about or be effected by operation
of law or otherwise):
(i) the Company defaults in the payment of any principal
of, or Yield- Maintenance Amount payable with respect to, any Note when
the same shall become due, either by the terms thereof or otherwise as
herein provided; or
(ii) the Company defaults in the payment of any interest
on any Note for more than 10 days after the date due; or
(iii) the Company or any Subsidiary defaults (whether as
primary obligor or as guarantor or other surety) in any payment of
principal of or interest on any other obligation for money borrowed (or
any Capitalized Lease Obligation, any obligation under a conditional
sale or other title retention agreement, any obligation issued or
assumed as full or partial payment for property whether or not secured
by a purchase money mortgage or any obligation under notes payable or
drafts accepted representing extensions of credit) beyond any period of
grace provided with respect thereto, or the Company or any Subsidiary
fails to perform or observe any other agreement, term or condition
contained in any agreement under which any such obligation is created
(or if any other event thereunder or under any such agreement shall
occur and be continuing) and the effect of such failure or other event
is to cause, or to permit the holder or holders of such obligation (or a
trustee on behalf of such holder or holders) to cause, such obligation
to become due (or to be repurchased by the Company or any Subsidiary)
prior to any stated maturity, PROVIDED that the aggregate amount of all
obligations as to which such a payment default shall occur and be
continuing or such a failure or other event causing or permitting
acceleration (or resale to the Company or any Subsidiary) shall occur
and be continuing exceeds $5,000,000; or
(iv) any representation or warranty made by the Company
herein or by the Company or any of its officers in any writing furnished
in connection with or pursuant to this Agreement shall be false in any
material respect on the date as of which made; or
15
(v) the Company fails to perform or observe any
agreement contained in paragraph 5G or 6; or
(vi) the Company fails to perform or observe any other
agreement, term or condition contained herein and such failure shall not
be remedied within 30 days after any Responsible Officer obtains actual
knowledge thereof; or
(vii) the Company or any Subsidiary makes an assignment
for the benefit of creditors or is generally not paying its debts as
such debts become due; or
(viii) any decree or order for relief in respect of the
Company or any Subsidiary is entered under any bankruptcy,
reorganization, compromise, arrangement, insolvency, readjustment of
debt, dissolution or liquidation or similar law, whether now or
hereafter in effect (herein called the "BANKRUPTCY LAW"), of any
jurisdiction; or
(ix) the Company or any Subsidiary petitions or applies
to any tribunal for, or consents to, the appointment of, or taking
possession by, a trustee, receiver, custodian, liquidator or similar
official of the Company or any Subsidiary, or of any substantial part of
the assets of the Company or any Subsidiary, or commences a voluntary
case under the Bankruptcy Law of the United States or any proceedings
(other than proceedings for the voluntary liquidation and dissolution of
a Subsidiary) relating to the Company or any Subsidiary under the
Bankruptcy Law of any other jurisdiction; or
(x) any such petition or application is filed, or any
such proceedings are commenced, against the Company or any Subsidiary
and the Company or such Subsidiary by any act indicates its approval
thereof, consent thereto or acquiescence therein, or an order, judgment
or decree is entered appointing any such trustee, receiver, custodian,
liquidator or similar official, or approving the petition in any such
proceedings, and such order, judgment or decree remains unstayed and in
effect for more than 30 days; or
(xi) any order, judgment or decree is entered in any
proceedings against the Company decreeing the dissolution of the Company
and such order, judgment or decree remains unstayed and in effect for
more than 60 days: or
(xii) any order, judgment or decree is entered in any
proceedings against the Company or any Subsidiary decreeing a split-up
of the Company or such Subsidiary which requires the divestiture of
assets representing a substantial part, or the divestiture of the stock
of a Subsidiary whose assets represent a substantial part, of the
consolidated assets of the Company and its Subsidiaries (determined in
accordance with generally accepted accounting principles) or which
requires the
16
divestiture of assets, or stock of a Subsidiary, which shall have
contributed a substantial part of the consolidated net income of the
Company and its Subsidiaries (determined in accordance with generally
accepted accounting principles) for any of the three fiscal years then
most recently ended, and such order, judgment or decree remains unstayed
and in effect for more than 60 days; or
(xiii) one or more final judgments in an aggregate amount
in excess of $2,000,000 is rendered against the Company or any
Subsidiary and, within 60 days after entry thereof, any such judgment is
not discharged or execution thereof stayed pending appeal, or within 60
days after the expiration of any such stay, such judgment is not
discharged; or
(xiv) the Company or any ERISA Affiliate, in its capacity
as an employer under a Multiemployer Plan, makes a complete or partial
withdrawal from such Multiemployer Plan resulting in the incurrence by
such withdrawing employer of a withdrawal liability in an amount
exceeding $1,000,000;
then (a) if such event is an Event of Default specified in clause (i) or (ii)
of this paragraph 7A, any holder of any Note may at its option during the
continuance of such Event of Default, by notice in writing to the Company,
declare all of the Notes held by such holder to be, and all of the Notes held
by such holder shall thereupon be and become, immediately due and payable at
par together with interest accrued thereon, without presentment, demand,
protest or notice of any kind, all of which are hereby waived by the Company,
(b) if such event is an Event of Default specified in clause (viii), (ix) or
(x) of this paragraph 7A with respect to the Company, all of the Notes at the
time outstanding shall automatically become immediately due and payable
together with interest accrued thereon and together with the
Yield-Maintenance Amount, if any, with respect to each Note, without
presentment, demand, protest or notice of any kind, all of which are hereby
waived by the Company, and (c) with respect to any event constituting an
Event of Default, the Required Holder(s) of the Notes of any Series may at
its or their option during the continuance of such Event of Default, by
notice in writing to the Company, declare all of the Notes of such Series to
be, and all of the Notes of such Series shall thereupon be and become,
immediately due and payable together with interest accrued thereon and
together with the Yield-Maintenance Amount, if any, with respect to each Note
of such Series, without presentment, demand, protest or notice of any kind,
all of which are hereby waived by the Company.
7B. RESCISSION OF ACCELERATION. At any time after any or all of
the Notes of any Series shall have been declared immediately due and payable
pursuant to paragraph 7A, the Required Holder(s) of the Notes of such Series
may, by notice in writing to the Company, rescind and annul such declaration
and its consequences if (i) the Company shall have paid all overdue interest
on the Notes of such Series, the principal of and Yield-Maintenance Amount,
if any, payable with respect to any Notes of such Series which have become
due otherwise than by reason of such declaration, and interest on such
overdue interest and overdue principal and Yield-Maintenance Amount at the
rate specified in the Notes of such Series, (ii) the Company shall not have
paid any amounts which have become due solely by reason of such declaration,
(iii) all Events
17
of Default and Defaults, other than non-payment of amounts which have become
due solely by reason of such declaration, shall have been cured or waived
pursuant to paragraph 11C, and (iv) no judgment or decree shall have been
entered for the payment of any amounts due pursuant to the Notes of such
Series or this Agreement. No such rescission or annulment shall extend to or
affect any subsequent Event of Default or Default or impair any right arising
therefrom.
7C. NOTICE OF ACCELERATION OR RESCISSION. Whenever any Note
shall be declared immediately due and payable pursuant to paragraph 7A or any
such declaration shall be rescinded and annulled pursuant to paragraph 7B,
the Company shall forthwith give written notice thereof to the holder of each
Note of each Series at the time outstanding.
7D. OTHER REMEDIES. If any Event of Default or Default shall
occur and be continuing, the holder of any Note may proceed to protect and
enforce its rights under this Agreement and such Note by exercising such
remedies as are available to such holder in respect thereof under applicable
law, either by suit in equity or by action at law, or both, whether for
specific performance of any covenant or other agreement contained in this
Agreement or in aid of the exercise of any power granted in this Agreement.
No remedy conferred in this Agreement upon the holder of any Note is intended
to be exclusive of any other remedy, and each and every such remedy shall be
cumulative and shall be in addition to every other remedy conferred herein or
now or hereafter existing at law or in equity or by statute or otherwise.
8. REPRESENTATIONS, COVENANTS AND WARRANTIES. The Company
represents, covenants and warrants as follows (all references to "Subsidiary"
and "Subsidiaries" in this paragraph 8 shall be deemed omitted if the Company
has no Subsidiaries at the time the representations herein are made or
repeated):
8A. ORGANIZATION; SUBSIDIARY PREFERRED STOCK. The Company is a
corporation duly organized and existing in good standing under the laws of
the State of Delaware, each Subsidiary is duly organized and existing in good
standing under the laws of the jurisdiction in which it is incorporated, and
the Company has and each Subsidiary has the corporate power to own its
respective property and to carry on its respective business as now being
conducted. No Subsidiary has outstanding any shares of stock of a class
which has priority over any other class as to dividends or in liquidation.
As of the Series A Closing Day, the Company has no Subsidiaries.
8B. FINANCIAL STATEMENTS. The Company has furnished each
Purchaser of any Note with the following financial statements, identified by
a principal financial officer of the Company: (i) a consolidated balance
sheet of the Company and its Subsidiaries as at December 31 in each of the
three fiscal years of the Company most recently completed prior to the date
as of which this representation is made or repeated to such Purchaser (other
than fiscal years completed within 90 days prior to such date for which
audited financial statements have not been released) and consolidated
statements of income and cash flows and a consolidated statement of
shareholders' equity of the Company and its Subsidiaries for each such year,
all reported on by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ L.L.P. (or such other nationally
recognized independent public accountants as may be subsequently selected by
the Company with respect to fiscal years ending after the date hereof) and
(ii)
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consolidated balance sheet of the Company and its Subsidiaries as at the end
of the quarterly period (if any) most recently completed prior to such date
and after the end of such fiscal year (other than quarterly periods completed
within 45 days prior to such date for which financial statements have not
been released) and the comparable quarterly period in the preceding fiscal
year and consolidated statements of income and cash flows and a consolidated
statement of shareholders' equity for the periods from the beginning of the
fiscal years in which such quarterly periods are included to the end of such
quarterly periods, prepared by the Company. Such financial statements
(including any related schedules and/or notes) are true and correct in all
material respects (subject, as to interim statements, to the absence of
footnotes and changes resulting from audits and year-end adjustments), have
been prepared in accordance with generally accepted accounting principles
consistently followed throughout the periods involved and show all
liabilities, direct and contingent, of the Company and its Subsidiaries
required to be shown in accordance with such principles. The balance sheets
fairly present the condition of the Company and its Subsidiaries as at the
dates thereof, and the statements of income, stockholders' equity and cash
flows fairly present the results of the operations of the Company and its
Subsidiaries and their cash flows for the periods indicated. There has been
no material adverse change in the business, property or assets, condition
(financial or otherwise), operations or prospects of the Company and its
Subsidiaries taken as a whole since the end of the most recent fiscal year
for which such audited financial statements have been furnished.
8C. ACTIONS PENDING. There is no action, suit, investigation or
proceeding pending or, to the knowledge of the Company, threatened against
the Company or any of its Subsidiaries, or any properties or rights of the
Company or any of its Subsidiaries, by or before any court, arbitrator or
administrative or governmental body which could be reasonably expected to
result in any material adverse change in the business, property or assets,
condition (financial or otherwise) or operations of the Company and its
Subsidiaries taken as a whole.
8D. OUTSTANDING LIENS AND DEBT. Neither the Company nor any of
its Subsidiaries has outstanding any Liens or Debt except as respectively
permitted by paragraphs 6B(1) and 6B(2). There exists no default under the
provisions of any instrument evidencing such Debt or of any agreement
relating thereto.
8E. TITLE TO PROPERTIES. The Company has and each of its
Subsidiaries has good and indefeasible title to its respective real
properties (other than properties which it leases) and good title to all of
its other respective properties and assets, including the properties and
assets reflected in the most recent audited balance sheet referred to in
paragraph 8B (other than properties and assets disposed of in the ordinary
course of business) or as permitted under paragraph 6B(4), subject to no Lien
of any kind except Liens permitted by paragraph 6B(1). All leases necessary
in any material respect for the conduct of the respective businesses of the
Company and its Subsidiaries are valid and subsisting and are in full force
and effect.
8F. TAXES. The Company has and each of its Subsidiaries has filed
all federal, state and other income tax returns which, to the best knowledge of
the officers of the Company and its Subsidiaries, are required to be filed, and
each has paid all taxes as shown on such returns and on
19
all assessments received by it to the extent that such taxes have become due,
except such taxes as are being contested in good faith by appropriate
proceedings for which adequate reserves have been established in accordance
with generally accepted accounting principles.
8G. CONFLICTING AGREEMENTS AND OTHER MATTERS. Neither the
Company nor any of its Subsidiaries is a party to any contract or agreement
or subject to any charter or other corporate restriction which materially and
adversely affects its business, property or assets, condition (financial or
otherwise) or operations. Neither the execution nor delivery of this
Agreement or the Notes, nor the offering, issuance and sale of the Notes, nor
fulfillment of nor compliance with the terms and provisions hereof and of the
Notes will conflict with, or result in a breach of the terms, conditions or
provisions of, or constitute a default under, or result in any violation of,
or result in the creation of any Lien upon any of the properties or assets of
the Company or any of its Subsidiaries pursuant to, the charter or by-laws of
the Company or any of its Subsidiaries, any award of any arbitrator or any
agreement (including any agreement with stockholders), instrument, order,
judgment, decree, statute, law, rule or regulation to which the Company or
any of its Subsidiaries is subject except that the Credit Agreement between
U.S. Bank National Association and the Company dated as of October 30, 1998
may require in certain circumstances the granting of Liens which may not be
permitted by this Agreement. The Company acknowledges that notwithstanding
the foregoing disclosure the granting of any such Liens in contravention of
the terms hereof will constitute an Event of Default hereunder and the
holder(s) of the Notes would be entitled to exercise their rights and
remedies. Neither the Company nor any of its Subsidiaries is a party to, or
otherwise subject to any provision contained in, any instrument evidencing
Indebtedness of the Company or such Subsidiary, any agreement relating
thereto or any other contract or agreement (including its charter) which
limits the amount of, or otherwise imposes restrictions on the incurring of,
Debt of the Company of the type to be evidenced by the Notes except as set
forth in the agreements listed in SCHEDULE 8G attached hereto (as such
Schedule 8G may have been modified from time to time by written supplements
thereto delivered by the Company and accepted in writing by Prudential).
8H. OFFERING OF NOTES. Neither the Company nor any agent acting
on its behalf has, directly or indirectly, offered the Notes or any similar
security of the Company for sale to, or solicited any offers to buy the Notes
or any similar security of the Company from, or otherwise approached or
negotiated with respect thereto with, any Person other than institutional
investors, and neither the Company nor any agent acting on its behalf has
taken or will take any action which would subject the issuance or sale of the
Notes to the provisions of Section 5 of the Securities Act or to the
provisions of any securities or Blue Sky law of any applicable jurisdiction.
8I. USE OF PROCEEDS. The proceeds of the Series A Notes will be
used to retire existing indebtedness. The Company is not engaged
principally, or as one of its important activities, in the business of
extending credit for the purpose of purchasing or carrying "margin stock"
(within the meaning of Regulation U of the Board of Governors of the Federal
Reserve System), and the aggregate market value of all "margin stock" owned
by the Company and its Subsidiaries does not exceed 25% of the aggregate
value of the assets thereof, as determined by any reasonable method. Neither
the Company nor any agent acting on its behalf has taken or will
20
take any action which might cause this Agreement or the Notes to violate
Regulation U, Regulation T or any other regulation of the Board of Governors
of the Federal Reserve System or to violate the Exchange Act, in each case as
in effect now or as the same may hereafter be in effect.
8J. ERISA. No accumulated funding deficiency (as defined in
section 302 of ERISA and section 412 of the Code), whether or not waived,
exists with respect to any Plan (other than a Multiemployer Plan). No
liability to the PBGC has been or is expected by the Company or any ERISA
Affiliate to be incurred with respect to any Plan (other than a Multiemployer
Plan) by the Company, any Subsidiary or any ERISA Affiliate which is or would
be materially adverse to the business, property or assets, condition
(financial or otherwise) or operations of the Company and its Subsidiaries
taken as a whole. Neither the Company, any Subsidiary nor any ERISA
Affiliate has incurred or presently expects to incur any withdrawal liability
under Title IV of ERISA with respect to any Multiemployer Plan which is or
would be materially adverse to the business, property or assets, condition
(financial or otherwise) or operations of the Company and its Subsidiaries
taken as a whole. The execution and delivery of this Agreement and the
issuance and sale of the Notes will be exempt from or will not involve any
transaction which is subject to the prohibitions of section 406 (a) of ERISA
and will not involve any transaction in connection with which a tax could be
imposed pursuant to section 4975(c)(1)(A), (B), (C), or (D) of the Code. The
representation by the Company in the next preceding sentence is made in
reliance upon and subject to the accuracy of the representation of each
Purchaser in paragraph 9B as to the source of funds to be used by it to
purchase any Notes and based upon applicable law in existence and in effect
on the date of this Agreement or the date this representation is remade.
8K. GOVERNMENTAL CONSENT. Neither the nature of the Company or
of any Subsidiary, nor any of their respective businesses or properties, nor
any relationship between the Company or any Subsidiary and any other Person,
nor any circumstance in connection with the offering, issuance, sale or
delivery of the Notes is such as to require any authorization, consent,
approval, exemption or any action by or notice to or filing with any court or
administrative or governmental body (other than routine filings after the
Closing Day for any Notes with the Securities and Exchange Commission and/or
state Blue Sky authorities) in connection with the execution and delivery of
this Agreement, the offering, issuance, sale or delivery of the Notes or
fulfillment of or compliance with the terms and provisions hereof or of the
Notes.
8L. ENVIRONMENTAL COMPLIANCE. The Company and its Subsidiaries
and all of their respective properties and facilities have complied at all
times and in all respects with all foreign, federal, state, local and
regional statutes, laws, ordinances and judicial or administrative orders,
judgments, rulings and regulations relating to protection of the environment
EXCEPT, in any such case, where failure to comply would not result in a
material adverse effect on the business, condition (financial or otherwise)
or operations of the Company and its Subsidiaries taken as a whole.
8M. REGULATORY STATUS. Neither the Company nor any Subsidiary is
(i) an "Investment company" or a company "controlled" by an "investment company"
within the
21
meaning of the Investment Company Act of 1940, as amended, (ii) a "holding
company" or a "subsidiary company" or an "affiliate" of a "holding company"
or a "subsidiary company" of a "holding company", within the meaning of the
Public Utility Act of 1935, as amended, or (iii) a "public utility" within
the meaning of the Federal Power Act, as amended.
8N. SECTION 144A. The Notes are not of the same class as
securities, if any, of the Company listed on a national securities exchange
registered under Section 6 of the Exchange Act or quoted in a U.S. automated
inter-dealer quotation system.
8O. ABSENCE OF FINANCING STATEMENTS, ETC. Except with respect
to Liens permitted by paragraph 6B(1) hereof, there is no financing
statement, security agreement, chattel mortgage, real estate mortgage or
other document filed or recorded with any filing records, registry or other
public office, that purports to cover, affect or give notice of any present
or possible future Lien on, or security interest in, any assets or property
of the Company or any of its Subsidiaries or any rights relating thereto.
8P. DISCLOSURE. Neither this Agreement nor any other document,
certificate or statement furnished to any Purchaser by or on behalf of the
Company in connection herewith contains any untrue statement of a material
fact or omits to state a material fact necessary in order to make the
statements contained herein and therein not misleading. There is no fact
peculiar to the Company or any of its Subsidiaries which materially adversely
affects or in the future may (so far as the Company can now foresee)
materially adversely affect the business, property or assets, condition
(financial or otherwise) or operations of the Company or any of its
Subsidiaries and which has not been set forth in this Agreement.
8Q. HOSTILE TENDER OFFERS. None of the proceeds of the sale of
any Notes will be used to finance a Hostile Tender Offer.
9. REPRESENTATIONS OF THE PURCHASERS.
Each Purchaser represents as follows:
9A. NATURE OF PURCHASE. Such Purchaser is an "accredited
investor" (as defined in Rule 501 of Regulation D promulgated under the
Securities Act) and is not acquiring the Notes purchased by it hereunder with
a view to or for sale in connection with any distribution thereof within the
meaning of the Securities Act, provided that the disposition of such
Purchaser's property shall at all times be and remain within its control.
9B. SOURCE OF FUNDS. The source of the funds being used by such
Purchaser to pay the purchase price of the Notes being purchased by such
Purchaser hereunder constitutes assets allocated to: (i) the "insurance
company general account" of such Purchaser (as such term is defined under
Section V of the United States Department of Labor's Prohibited Transaction
Class Exemption ("PTCE") 95-60), and as of the date of the purchase of the
Notes such Purchaser satisfies all of the applicable requirements for relief
under Sections I and IV of PTCE 95-60, (ii) a
22
separate account maintained by such Purchaser in which no employee benefit
plan, other than employee benefit plans identified on a list which has been
furnished by such Purchaser to the Company, participates to the extent of 10%
or more and, other than with respect to those Plans identified on such list,
applicable requirements for relief under PTCE 90-1 are met or (iii) an
investment fund, the assets of which do not include any assets of any
employee benefit plan. For the purpose of this paragraph 9B, the terms
"SEPARATE ACCOUNT" and "EMPLOYEE BENEFIT PLAN" shall have the respective
meanings specified in section 3 of ERISA.
10. DEFINITIONS; ACCOUNTING MATTERS. For the purpose of this
Agreement, the terms defined in paragraphs 10A and 10B (or within the text of
any other paragraph) shall have the respective meanings specified therein and
all accounting matters shall be subject to determination as provided in
paragraph 10C.
10A. YIELD-MAINTENANCE TERMS.
"Called Principal" shall mean, with respect to any Note, the
principal of such Note that is to be prepaid pursuant to paragraph 4C, is put
to the Company pursuant to paragraph 5G or is declared to be immediately due
and payable pursuant to paragraph 7A, as the context requires.
"DISCOUNTED VALUE" shall mean, 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 (as converted to reflect the periodic basis on which interest
on such Note is payable, if payable other than on a semi-annual basis) equal
to the Reinvestment Yield with respect to such Called Principal.
"Reinvestment Yield" shall mean, with respect to the Called
Principal of any Note, the yield to maturity implied by (i) 0.75% over the
yields reported, as of 10:00 A.M. (New York City local time) on the Business
Day next preceding the Settlement Date with respect to such Called Principal,
on the display designated as "Page 678" on the Telerate Service (or such
other display as may replace page 678 on the Telerate Service) for actively
traded U.S. Treasury securities having a maturity equal to the Remaining
Average Life of such Called Principal as of such Settlement Date, or if such
yields shall not be reported as of such time or the yields reported as of
such time shall not be ascertainable, (ii) the Treasury Constant Maturity
Series yields reported, for the latest day for which such yields shall have
been so reported as of the Business Day next preceding the Settlement Date
with respect to such Called Principal, in Federal Reserve Statistical Release
H.15 (519) (or any comparable successor publication) for actively traded U.S.
Treasury securities having a constant maturity equal to the Remaining Average
Life of such Called Principal as of such Settlement Date. Such implied yield
shall be determined, if necessary, by (a) converting U.S. Treasury ▇▇▇▇
quotations to bond-equivalent yields in accordance with accepted financial
practice and (b) interpolating linearly between yields reported for various
maturities.
23
"REMAINING AVERAGE LIFE" shall mean, with respect to the
Called Principal of any Note, the number of years (calculated to the nearest
one-twelfth year) obtained by dividing (i) such Called Principal into (ii)
the sum of the products obtained by multiplying (a) each Remaining Scheduled
Payment of such Called Principal (but not of interest thereon) by (b) the
number of years (calculated to the nearest one-twelfth year) which will
elapse between the Settlement Date with respect to such Called Principal and
the scheduled due date of such Remaining Scheduled Payment.
"REMAINING SCHEDULED PAYMENTS" shall mean, with respect to
the Called Principal of any Note, all payments of such Called Principal and
interest thereon that would be due on or 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.
"SETTLEMENT DATE" shall mean, with respect to the Called
Principal of any Note, the date on which such Called Principal is to be
prepaid pursuant to paragraph 4C, is put to the Company pursuant to paragraph
5G or is declared to be immediately due and payable pursuant to paragraph 7A,
as the context requires.
"YIELD-MAINTENANCE AMOUNT" shall mean, with respect to any
Note, an amount equal to the excess, if any, of the Discounted Value of the
Called Principal of such Note over the sum of (i) such Called Principal plus
(ii) interest accrued thereon as of (including interest due on) the
Settlement Date with respect to such Called Principal. The Yield-Maintenance
Amount shall in no event be less than zero.
10B. OTHER TERMS.
"ACCEPTANCE" shall have the meaning specified in paragraph
2B(5).
"ACCEPTANCE DAY" shall have the meaning specified in
paragraph 2B(5).
"ACCEPTANCE WINDOW" shall mean, with respect to any interest
rate quote made by Prudential pursuant to paragraph 2B(4), the time period
designated by Prudential during which the Company may elect to accept such
interest rate quote as to not less than $5,000,000 in aggregate principal
amount of Shelf Notes specified in the related Request for Purchase.
"ACCEPTED NOTE" shall have the meaning specified in
paragraph 2B(5).
"AFFILIATE" shall mean any Person directly or indirectly
controlling, controlled by, or under direct or indirect common control with,
the Company, except a Subsidiary. A Person shall be deemed to control a
corporation if such Person possesses, directly or indirectly, the power to
direct or cause the direction of the management and policies of such
corporation, whether through the ownership of voting securities, by contract
or otherwise.
24
"AUTHORIZED OFFICER" shall mean (i) in the case of the
Company, its chief executive officer, its chief financial officer, any vice
president of the Company designated as an "Authorized Officer" of the Company
in the Information Schedule attached hereto or any vice president of the
Company designated as an "Authorized Officer" of the Company for the purpose
of this Agreement in an Officer's Certificate executed by the Company's chief
executive officer or chief financial officer and delivered to Prudential, and
(ii) in the case of Prudential, any officer of Prudential designated as its
"Authorized Officer" in the Information Schedule or any officer of Prudential
designated as its "Authorized Officer" for the purpose of this Agreement in a
certificate executed by one of its Authorized Officers. Any action taken
under this Agreement on behalf of the Company by any individual who on or
after the date of this Agreement shall have been an Authorized Officer of the
Company and whom Prudential in good faith believes to be an Authorized
Officer of the Company at the time of such action shall be binding on the
Company even though such individual shall have ceased to be an Authorized
Officer of the Company, and any action taken under this Agreement on behalf
of Prudential by any individual who on or after the date of this Agreement
shall have been an Authorized Officer of Prudential and whom the Company in
good faith believes to be an Authorized Officer of Prudential at the time of
such action shall be binding on Prudential even though such individual shall
have ceased to be an Authorized Officer of Prudential.
"AVAILABLE FACILITY AMOUNT" shall have the meaning specified
in paragraph 2B(1).
"BANKRUPTCY LAW" shall have the meaning specified in clause
(viii) of paragraph 7A.
"BUSINESS DAY" shall mean any day other than (i) a Saturday
or a Sunday, (ii) a day on which commercial banks in New York City are
required or authorized to be closed and (iii) for purposes of paragraph 2B(3)
hereof only, a day on which The Prudential Insurance Company of America is
not open for business.
"CANCELLATION DATE" shall have the meaning specified in
paragraph 2B(8)(iv).
"CANCELLATION FEE" shall have the meaning specified in
paragraph 2B(8)(iv).
"Capitalized Lease Obligation" shall mean any rental
obligation which, under generally accepted accounting principles, is or will
be required to be capitalized on the books of the Company or any Subsidiary,
taken at the amount thereof accounted for as indebtedness (net of interest
expenses) in accordance with such principles.
"CHANGE IN CONTROL EVENT" shall mean the acquisition,
through purchase or otherwise (including the agreement to act in concert
without anything more), by any Person or group of Persons (other than one or
more of ▇▇▇▇▇ ▇▇▇▇▇▇, his spouse and their descendants and
25
estates thereof and trusts of which any of the foregoing are jointly or
severally sole beneficiaries) acting in concert, directly or indirectly, in
one or more transactions, of (i) beneficial ownership or control of
securities representing more than 50% of the combined voting power of the
Company's Voting Stock or (ii) substantially all of the assets of the Company
and its Subsidiaries taken as a whole.
"CLOSING DAY" shall mean, with respect to the Series A
Notes, the Series A Closing Day and, with respect to any Accepted Note, the
Business Day specified for the closing of the purchase and sale of such
Accepted Note in the Request for Purchase of such Accepted Note, PROVIDED
that (i) if the Company and the Purchaser which is obligated to purchase such
Accepted Note agree on an earlier Business Day for such closing, the "CLOSING
DAY" for such Accepted Note shall be such earlier Business Day, and (ii) if
the closing of the purchase and sale of such Accepted Note is rescheduled
pursuant to paragraph 2B(7), the Closing Day for such Accepted Note, for all
purposes of this Agreement except references to "original Closing Day" in
paragraph 2B(8)(iii), shall mean the Rescheduled Closing Day with respect to
such Accepted Note.
"CODE" shall mean the Internal Revenue Code of 1986, as
amended.
"COMPETITOR" shall mean and include any Person which has
the following Standard Industrial Classification Code ("SIC Codes"): 4213.
"CONFIDENTIAL INFORMATION" shall mean any non-public or
proprietary information delivered or made available by or on behalf of the
Company or any Subsidiary to a Purchaser or a Transferee (as the case may
be), including without limitation any non-public information obtained
pursuant to paragraph 5A or 5C, in connection with or pursuant to this
Agreement which is proprietary in nature, but in no event shall include
information (i) which was publicly known or otherwise known to such Purchaser
or Transferee (as the case may be) at the time of disclosure (except pursuant
to disclosure in connection with this Agreement), (ii) which subsequently
becomes publicly known through no act or omission by such Purchaser or
Transferee (as the case may be), or (iii) which otherwise becomes known to
such Purchaser or Transferee, other than through disclosure by the Company or
from a Person obligated not to disclose under this Agreement.
"CONFIRMATION OF ACCEPTANCE" shall have the meaning
specified in paragraph 2B(5).
"CONSOLIDATED" shall mean the consolidation of the accounts
of the Company and its Subsidiaries in accordance with generally accepted
accounting principles including principles of consolidation.
"CONSOLIDATED ADJUSTED GROSS WORTH" shall mean the sum of
(i) Consolidated Net Worth, (ii) consolidated deferred income taxes and (iii)
Consolidated Debt.
26
"CONSOLIDATED DEBT" shall mean the Debt of the Company and
all Subsidiaries after giving effect to intercompany eliminations arising
from the consolidation of financial statements in accordance with generally
accepted accounting principles.
"CONSOLIDATED GROSS WORTH" shall mean the Consolidated Net
Worth plus Consolidated Debt.
"CONSOLIDATED NET INCOME" shall mean, with respect to any
period, the net income of the Company and its Subsidiaries determined on a
consolidated basis in accordance with generally accepted accounting
principles, excluding extraordinary gains and losses and non-cash charges.
"CONSOLIDATED NET WORTH" shall mean, as of any time of
determination thereof, the sum of (i) the par value (or value stated on the
books of the Company) of the capital stock of all classes of the Company,
plus (or minus in the case of a surplus deficit) (ii) the amount of the
consolidated surplus, whether capital or earned, of the Company and its
Subsidiaries after subtracting therefrom the aggregate of treasury stock and
any other contra-equity accounts including, without limitation, minority
interests; all determined in accordance with generally accepted accounting
principles.
"DEBT" shall mean and include, (i) any obligation which
under generally accepted accounting principles is shown on the balance sheet
as a liability (including capitalized lease obligations) but excluding: (a)
reserves for deferred income taxes, (b) reserves for employee
retirement-related benefits, (c) other reserves to the extent that such
reserves do not constitute an obligation; and (d) current liabilities other
than current maturities of Debt (ii) indebtedness which is secured by any
Lien on property owned by the Company or any Subsidiary; (iii) Guarantees in
connection with the obligations, stock or dividends of any Person.
"DELAYED DELIVERY FEE" shall have the meaning specified in
paragraph 2B(8)(iii).
"EBITDA" shall mean, with respect to the Company and its
Subsidiaries on a consolidated basis, the sum of (i) Consolidated Net Income,
(ii) income tax expense (iii) interest expense, (iv) depreciation expense and
(v) amortization expense, all determined in accordance with generally
accepted accounting principles.
"ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as amended.
"ERISA AFFILIATE" shall mean any corporation which is a
member of the same controlled group of corporations as the Company within the
meaning of section 414(b) of the Code, or any trade or business which is
under common control with the Company within the meaning of section 414(c) of
the Code.
27
"EVENT OF DEFAULT" shall mean any of the events specified in
paragraph 7A, provided that there has been satisfied any requirement in
connection with such event for the giving of notice, or the lapse of time, or
the happening of any further condition, event or act, and "DEFAULT" shall
mean any of such events, whether or not any such requirement has been
satisfied.
"EXCHANGE ACT" shall mean the Securities Exchange Act of
1934, as amended.
"FACILITY" shall have the meaning specified in paragraph
2B(1).
"GUARANTEE" shall mean, with respect to any Person, any
direct or indirect liability, contingent or otherwise, of such Person with
respect to any indebtedness, lease, dividend or other obligation of another,
including, without limitation, any such obligation directly or indirectly
guaranteed, endorsed (otherwise than for collection or deposit in the
ordinary course of business) or discounted or sold with recourse by such
Person, or in respect of which such Person is otherwise directly or
indirectly liable, including, without limitation, any such obligation in
effect guaranteed by such Person through any agreement (contingent or
otherwise) to purchase, repurchase or otherwise acquire such obligation or
any security therefor, or to provide funds for the payment or discharge of
such obligation (whether in the form of loans, advances, stock purchases,
capital contributions or otherwise), or to maintain the solvency or any
balance sheet or other financial condition of the obligor of such obligation,
or to make payment for any products, materials or supplies or for any
transportation or service, regardless of the non-delivery or non-furnishing
thereof, in any such case if the purpose or intent of such agreement is to
provide assurance that such obligation will be paid or discharged, or that
any agreements relating thereto will be complied with, or that the holders of
such obligation will be protected against loss in respect thereof. The
amount of any Guarantee shall be equal to the outstanding principal amount of
the obligation guaranteed or such lesser amount to which the maximum exposure
of the guarantor shall have been specifically limited.
"HEDGE TREASURY NOTE(s)" shall mean, with respect to any
Accepted Note, the United States Treasury Note or Notes whose duration (as
determined by Prudential) most closely matches the duration of such Accepted
Note.
"HOSTILE TENDER OFFER" shall mean, with respect to the use
of proceeds of any Note, any offer to purchase, or any purchase of, shares of
capital stock of any corporation or equity interests in any other entity, or
securities convertible into or representing the beneficial ownership of, or
rights to acquire, any such shares or equity interests, if such shares,
equity interests, securities or rights are of a class which is publicly
traded on any securities exchange or in any over-the-counter market, other
than purchases of such shares, equity interests, securities or rights
representing less than 5% of the equity interests or beneficial ownership of
such corporation or other entity for portfolio investment purposes, and such
offer or purchase has not been duly approved by the board of directors of
such corporation or the equivalent governing body of such other entity prior
to the date on which the Company makes the Request for Purchase of such Note.
28
"INCLUDING" shall mean, unless the context clearly requires
otherwise, "including without limitation".
"INSTITUTIONAL INVESTOR" shall mean any insurance company,
bank, finance company, mutual fund, registered money or asset manager,
savings and loan association, credit union, registered investment advisor,
pension fund, investment company, licensed broker or dealer, "qualified
institutional buyer" (as such term is defined under Rule 144A promulgated
under the Securities Act, or any successor law, rule or regulation) or
"accredited investor" (as such term is defined under Regulation D promulgated
under the Securities Act, or any successor law, rule or regulation).
"ISSUANCE PERIOD" shall have the meaning specified in
paragraph 2B(2).
"Lien" shall mean any mortgage, pledge, security interest,
encumbrance, lien (statutory or otherwise) or charge of any kind (including
any agreement to give any of the foregoing, any conditional sale or other
title retention agreement, any lease in the nature thereof, and the filing of
or agreement to give any financing statement under the Uniform Commercial
Code of any jurisdiction) or any other type of preferential arrangement for
the purpose, or having the effect, of protecting a creditor against loss or
securing the payment or performance of an obligation.
"MULTIEMPLOYER PLAN" shall mean any Plan which is a
"multiemployer plan" (as such term is defined in section 4001(a)(3) of ERISA.
"NOTES" shall have the meaning specified in paragraph 1B.
"OFFICER'S CERTIFICATE" shall mean a certificate signed in
the name of the Company by an Authorized Officer of the Company.
"PERSON" shall mean and include an individual, a
partnership, a joint venture, a corporation, a trust, an unincorporated
organization and a government or any department or agency thereof.
"PLAN" shall mean any employee pension benefit plan (as such
term is defined in section 3 of ERISA) which is or has been established or
maintained, or to which contributions are or have been made, by the Company
or any ERISA Affiliate.
"PRIORITY DEBT" shall mean the sum of (i) Debt of the
Company which is secured by a Lien and (ii) Debt of any Subsidiary
(including, but not limited to, any Debt of a Subsidiary which consists of a
Guarantee of Debt of the Company), excluding however Debt of Subsidiaries
owing to the Company or any Wholly-Owned Subsidiary.
"PRUDENTIAL" shall mean The Prudential Insurance Company of
America.
"PRUDENTIAL AFFILIATE" shall mean any Affiliate of
Prudential.
29
"PURCHASERS" shall mean Prudential with respect to the
Series A Notes and, with respect to any Accepted Notes, Prudential and/or the
Prudential Affiliate(s), which are purchasing such Accepted Notes.
"RELATED PARTY" shall mean (i) any Significant Stockholder,
(ii) all persons to whom any Significant Stockholder is related by blood,
adoption or marriage and (iii) all Affiliates of the foregoing Persons.
"REQUEST FOR PURCHASE" shall have the meaning specified in
paragraph 2B(3).
"Required Holder(s)" shall mean the holder or holders of at
least 51% of the aggregate principal amount of the Notes or of a Series of
Notes, as the context may require, from time to time outstanding.
"RESCHEDULED CLOSING DAY" shall have the meaning specified
in paragraph 2B(7).
"RESPONSIBLE OFFICER" shall mean the chief executive
officer, chief operating officer, chief financial officer or chief accounting
officer of the Company, general counsel of the Company or any other officer
of the Company involved principally in its financial administration or its
controllership function.
"SECURITIES ACT" shall mean the Securities Act of 1933, as
amended.
"SERIES" shall have the meaning specified in paragraph 1B.
"SERIES A CLOSING DAY" shall have the meaning specified in
paragraph 2A.
"SERIES A NOTE(s)" shall have the meaning specified in
paragraph 1A.
"SHELF NOTES" shall have the meaning specified in paragraph
1B.
"SIGNIFICANT HOLDER" shall mean (i) Prudential, so long as
Prudential or any Prudential Affiliate shall hold (or be committed under
this Agreement to purchase) any Note, and (ii) any other holder of at least
10% of the aggregate principal amount of the Notes from time to time
outstanding.
"SIGNIFICANT STOCKHOLDER" shall mean and include any Person
who owns, beneficially or of record, directly or indirectly, at any time
during any year with respect to which a computation is being made, either
individually or together with all persons to whom such Person is related by
blood, adoption or marriage, 5% or more of the Voting Stock of the Company.
30
"STRUCTURING FEE" shall have the meaning specified in
paragraph 2B(8)(i).
"SUBSIDIARY" shall mean any corporation of which at least
51% of the total combined voting power of all classes of Voting Stock of
which shall, at the time as of which any determination is being made, be
owned by the Company either directly or through Subsidiaries.
"TRANSFER" shall mean, with respect to any item, the sale,
exchange, conveyance, lease, transfer or other disposition of such item.
"TRANSFEREE" shall mean any direct or indirect transferee of
all or any part of any Note purchased by any Purchaser under this Agreement.
"VOTING STOCK" shall mean, with respect to any corporation,
any shares of stock of such corporation whose holders are entitled under
ordinary circumstances to vote for the election of directors of such
corporation (irrespective of whether at the time stock of any other class or
classes shall have or might have voting power by reason of the happening of
any contingency).
"WHOLLY-OWNED SUBSIDIARY" shall mean any Subsidiary all of
the stock of every class of which is, at the time as of which any
determination is being made, owned by the Company either directly or through
a wholly-owned Subsidiary.
10C. ACCOUNTING PRINCIPLES, TERMS AND DETERMINATIONS. All
references in this Agreement to "generally accepted accounting principles"
shall be deemed to refer to generally accepted accounting principles in
effect in the United States at the time of application thereof. Unless
otherwise specified herein, all accounting terms used herein shall be
interpreted, all determinations with respect to accounting matters hereunder
shall be made, and all unaudited financial statements and certificates and
reports as to financial matters required to be furnished hereunder shall be
prepared, in accordance with generally accepted accounting principles applied
on a basis consistent with the most recent audited financial statements
delivered pursuant to clause (ii) of paragraph 5A or, if no such statements
have been so delivered, the most recent audited financial statements referred
to in clause (i) of paragraph 8B. Any reference herein to any specific law,
statute, rule or regulation shall refer to such law, statute, rule or
regulation as the same may be may be modified, amended or replaced from time
to time.
11. MISCELLANEOUS.
11A. NOTE PAYMENTS. The Company agrees that, so long as any
Purchaser shall hold any Note, it will make payments of principal of,
interest on, and any Yield-Maintenance Amount payable with respect to, such
Note, which comply with the terms of this Agreement, by wire transfer of
immediately available funds for credit (not later than 12:00 noon, New York
City local time, on the date due) to (i) the account or accounts of such
Purchaser specified in the Purchaser Schedule attached hereto in the case of
any Series A Note, (ii) the account or accounts of such Purchaser specified
in the Confirmation of Acceptance with respect to such Note in the case of
any Shelf Note or (iii) such other account or accounts in the United States
as such Purchaser may
31
from time to time designate in writing, notwithstanding any contrary
provision herein or in any Note with respect to the place of payment. Each
Purchaser agrees that, before disposing of any Note, it will make a notation
thereon (or on a schedule attached thereto) of all principal payments
previously made thereon and of the date to which interest thereon has been
paid. The Company agrees to afford the benefits of this paragraph 11A to any
Transferee which shall have made the same agreement as the Purchasers have
made in this paragraph 11A.
11B. EXPENSES. The Company agrees, whether or not the
transactions contemplated hereby shall be consummated, to pay, and save
Prudential, each Purchaser and any Transferee harmless against liability for
the payment of, all out-of-pocket expenses arising in connection with such
transactions, including (i) all document production and duplication charges
and the fees and expenses of any special counsel engaged by the Purchasers or
any Transferee in connection with this Agreement, the transactions
contemplated hereby and any subsequent proposed modification of, or proposed
consent under, this Agreement, whether or not such proposed modification
shall be effected or proposed consent granted, and (ii) the costs and
expenses, including attorneys' fees, incurred by any Purchaser or any
Transferee in enforcing (or determining whether or how to enforce) any rights
under this Agreement or the Notes or in responding to any subpoena or other
legal process or informal investigative demand issued in connection with this
Agreement or the transactions contemplated hereby or by reason of any
Purchaser's or any Transferee's having acquired any Note, including without
limitation costs and expenses incurred in any bankruptcy case. The
obligations of the Company under this paragraph 11B shall survive the
transfer of any Note or portion thereof or interest therein by any Purchaser
or any Transferee and the payment of any Note.
11C. CONSENT TO AMENDMENTS. This Agreement may be amended, and the
Company may take any action herein prohibited, or omit to perform any act herein
required to be performed by it, if the Company shall obtain the written consent
to such amendment, action or omission to act, of the Required Holder(s) of the
Notes of each Series except that, (i) with the written consent of the holders of
all Notes of a particular Series, and if an Event of Default shall have occurred
and be continuing, of the holders of all Notes of all Series, at the time
outstanding (and such written consents), the Notes of such Series may be amended
or the provisions thereof waived to change the maturity thereof, to change or
affect the principal thereof, or to change or affect the rate or time of payment
of interest on or any Yield-Maintenance Amount payable with respect to the Notes
of such Series, (ii) without the written consent of the holder or holders of all
Notes at the time outstanding, no amendment to or waiver of the provisions of
this Agreement shall change or affect the provisions of paragraph 7A or this
paragraph 11C insofar as such provisions relate to proportions of the principal
amount of the Notes of any Series, or the rights of any individual holder of
Notes, required with respect to any declaration of Notes to be due and payable
or with respect to any consent, amendment, waiver or declaration, (iii) with the
written consent of Prudential (and without the consent of any other holder of
the Notes) the provisions of paragraph 2B may be amended or waived (except
insofar as any such amendment or waiver would affect any rights or obligations
with respect to the purchase and sale of Notes which shall have become Accepted
Notes prior to such amendment or waiver), and (iv) with the written consent of
all of the Purchasers which shall have become obligated to purchase Accepted
Notes of any Series (and not
32
without the written consent of all such Purchasers), any of the provisions of
paragraphs 2B and 3 may be amended or waived insofar as such amendment or
waiver would affect only rights or obligations with respect to the purchase
and sale of the Accepted Notes of such Series or the terms and provisions of
such Accepted Notes. Each holder of any Note at the time or thereafter
outstanding shall be bound by any consent authorized by this paragraph 11C,
whether or not such Note shall have been marked to indicate such consent, but
any Notes issued thereafter may bear a notation referring to any such
consent. No course of dealing between the Company and the holder of any Note
nor any delay in exercising any rights hereunder or under any Note shall
operate as a waiver of any rights of any holder of such Note. As used herein
and in the Notes, the term "THIS AGREEMENT" and references thereto shall mean
this Agreement as it may from time to time be amended or supplemented.
11D. FORM, REGISTRATION, TRANSFER AND EXCHANGE OF NOTES; LOST
NOTES. The Notes are issuable as registered notes without coupons in
denominations of at least $1,000,000, except as may be necessary to reflect
any principal amount not evenly divisible by $1,000,000. The Company shall
keep at its principal office a register in which the Company shall provide
for the registration of Notes and of transfers of Notes. Upon surrender for
registration of transfer of any Note at the principal office of the Company,
the Company shall, at its expense, execute and deliver one or more new Notes
of like tenor and of a like then aggregate outstanding principal amount,
registered in the name of such transferee or transferees. At the option of
the holder of any Note, such Note may be exchanged for other Notes of like
tenor and of any authorized denominations, of a like aggregate principal
amount, upon surrender of the Note to be exchanged at the principal office of
the Company. Whenever any Notes are so surrendered for exchange, the Company
shall, at its expense, execute and deliver the Notes which the holder making
the exchange is entitled to receive. Each prepayment of principal payable on
each prepayment date upon each new Note issued upon any such transfer or
exchange shall be in the same proportion to the unpaid principal amount of
such new Note as the prepayment of principal payable on such date on the Note
surrendered for registration of transfer or exchange bore to the unpaid
principal amount of such Note. No reference need be made in any such new
Note to any prepayment or prepayments of principal previously due and paid
upon the Note surrendered for registration of transfer or exchange. Every
Note surrendered for registration of transfer or exchange shall be duly
endorsed, or be accompanied by a written instrument of transfer duly
executed, by the holder of such Note or such holder's attorney duly
authorized in writing. Any Note or Notes issued in exchange for any Note or
upon transfer thereof shall carry the rights to unpaid interest and interest
to accrue which were carried by the Note so exchanged or transferred, so that
neither gain nor loss of interest shall result from any such transfer or
exchange. Upon receipt of written notice from the holder of any Note of the
loss, theft, destruction or mutilation of such Note and, in the case of any
such loss, theft or destruction, upon receipt of such holder's unsecured
indemnity agreement, or in the case of any such mutilation upon surrender and
cancellation of such Note, the Company will make and deliver a new Note, of
like tenor, in lieu of the lost, stolen, destroyed or mutilated Note.
11E. PERSONS DEEMED OWNERS; PARTICIPATIONS. Prior to due
presentment for registration of transfer, the Company may treat the Person in
whose name any Note is registered as the owner and holder of such Note for
the purpose of receiving payment of principal of and interest
33
on, and any Yield-Maintenance Amount payable with respect to, such Note and
for all other purposes whatsoever, whether or not such Note shall be overdue,
and the Company shall not be affected by notice to the contrary. Subject to
the preceding sentence, the holder of any Note may from time to time grant
participations in all or any part of such Note to any Person on such terms
and conditions as may be determined by such holder in its sole and absolute
discretion.
11F. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE
AGREEMENT. All representations and warranties contained herein or made in
writing by or on behalf of the Company in connection herewith shall survive
the execution and delivery of this Agreement and the Notes, the transfer by
any Purchaser of any Note or portion thereof or interest therein and the
payment of any Note, and may be relied upon by any Transferee, regardless of
any investigation made at any time by or on behalf of any Purchaser or any
Transferee. Subject to the preceding sentence, this Agreement and the Notes
embody the entire agreement and understanding between the parties hereto with
respect to the subject matter hereof and supersede all prior agreements and
understandings relating to such subject matter.
11G. SUCCESSORS AND ASSIGNS. All covenants and other agreements
in this Agreement contained by or on behalf of any of the parties hereto
shall bind and inure to the benefit of the respective successors and assigns
of the parties hereto (including, without limitation, any Transferee) whether
so expressed or not.
11H. INDEPENDENCE OF COVENANTS. All covenants hereunder shall be
given independent effect so that if a particular action or condition is
prohibited by any one of such covenants, the fact that it would be permitted
by an exception to, or otherwise be in compliance within the limitations of,
another covenant shall not avoid (i) the occurrence of a Default or Event of
Default if such action is taken or such condition exists or (ii) in any way
prejudice an attempt by the holder of any Note to prohibit through equitable
action or otherwise the taking of any action by the Company or any Subsidiary
which would result in a Default or Event of Default.
11I. NOTICES. All written communications provided for hereunder
(other than communications provided for under paragraph 2) shall be sent by
first class mail or nationwide overnight delivery service (with charges prepaid)
and (i) if to any Purchaser, addressed as specified for such communications in
the Purchaser Schedule attached hereto (in the case of the Series A Notes) or
the Purchaser Schedule attached to the applicable Confirmation of Acceptance (in
the case of any Shelf Notes) or at such other address as any such Purchaser
shall have specified to the Company in writing, (ii) if to any other holder of
any Note, addressed to it at such address as it shall have specified in writing
to the Company or, if any such holder shall not have so specified an address,
then addressed to such holder in care of the last holder of such Note which
shall have so specified an address to the Company and (iii) if to the Company,
addressed to it at MARTEN TRANSPORT, LTD., ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: Chief Financial Officer, PROVIDED, HOWEVER, that any such
communication to the Company may in addition, at the option of the Person
sending such communication, be delivered by any other means either to the
Company at its address specified above or to any Authorized Officer of the
Company. Any communication pursuant to paragraph 2 shall be made by the method
specified for such
34
communication in paragraph 2, and shall be effective to create any rights or
obligations under this Agreement only if, in the case of a telephone
communication, an Authorized Officer of the party conveying the information
and of the party receiving the information are parties to the telephone call,
and in the case of a telecopier communication, the communication is signed by
an Authorized Officer of the party conveying the information, addressed to
the attention of an Authorized Officer of the party receiving the
information, and in fact received at the telecopier terminal the number of
which is listed for the party receiving the communication in the Information
Schedule or at such other telecopier terminal as the party receiving the
information shall have specified in writing to the party sending such
information.
11J. PAYMENTS DUE ON NON-BUSINESS DAYS. Anything in this
Agreement or the Notes to the contrary notwithstanding, any payment of
principal of or interest on, or Yield-Maintenance Amount payable with respect
to, any Note that is due on a date other than a Business Day shall be made on
the next succeeding Business Day. If the date for any payment is extended to
the next succeeding Business Day by reason of the preceding sentence, the
period of such extension shall not be included in the computation of the
interest payable on such Business Day.
11K. SEVERABILITY. Any provision of this Agreement which 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 not
invalidate or render unenforceable such provision in any other jurisdiction.
11L. DESCRIPTIVE HEADINGS. The descriptive headings of the
several paragraphs of this Agreement are inserted for convenience only and do
not constitute a part of this Agreement.
11M. SATISFACTION REQUIREMENT. If any agreement, certificate or
other writing, or any action taken or to be taken, is by the terms of this
Agreement required to be satisfactory to any Purchaser, to any holder of
Notes or to the Required Holder(s), the determination of such satisfaction
shall be made by such Purchaser, such holder or the Required Holder(s), as
the case may be, in the sole and exclusive judgment (exercised in good faith)
of the Person or Persons making such determination.
11N. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED
BY, THE INTERNAL LAW OF THE STATE OF ILLINOIS.
11O. SEVERALTY OF OBLIGATIONS. The sales of Notes to the
Purchasers are to be several sales, and the obligations of Prudential and the
Purchasers under this Agreement are several obligations. No failure by
Prudential or any Purchaser to perform its obligations under this Agreement
shall relieve any other Purchaser or the Company of any of its obligations
hereunder, and neither Prudential nor any Purchaser shall be responsible for
the obligations of, or any action taken or omitted by, any other such Person
hereunder.
35
11P. 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.
11Q. CONFIDENTIALITY PROVISIONS. Each Purchaser (and each
Transferee by its acceptance of an interest in any Note) agrees, so long as
no Event of Default is continuing under paragraphs 7A(i), (ii), (viii), (ix)
or (x), that it will use its best efforts to hold in confidence and not
disclose any Confidential Information without the prior written consent of
the Company which consent shall not be unreasonably denied; provided,
however, that nothing contained herein shall prevent the holder of any Note
from delivering copies of any financial statements and other documents
delivered to such holder, and disclosing any other information disclosed to
such holder, by the Company or any Subsidiary in connection with or pursuant
to this Agreement to (i) such holder's directors, officers, employees, agents
and professional consultants, (ii) any other holder of any Note, (iii) any
Institutional Investor to which such holder offers to sell such Note or any
part thereof, (iv) any Institutional Investor to which such holder sells or
offers to sell a participation in all or any part of such Note, (v) any
Institutional Investor from which such holder offers to purchase any security
of the Company, (vi) any federal or state regulatory authority having
jurisdiction over such holder, (vii) the National Association of Insurance
Commissioners or any similar organization or (viii) any other Person which is
not a Competitor to which such delivery or disclosure may be reasonably
necessary or appropriate (a) in compliance with any law, rule, regulation or
order applicable to such holder, (b) in response to any subpoena or other
legal process or investigative demand, (c) in connection with any litigation
in connection with this Agreement to which such holder is a party or (d) in
order to protect such holder's investment and enforce the rights of such
holder under this Agreement; and provided further that after notice to the
Company the holders of the Notes shall be free to correct any false or
misleading information which may become public concerning their relationship
to the Company or any of its Subsidiaries. Each Purchaser and each Transferee
may in good faith conclusively rely on a certificate of a proposed purchaser
of the Note(s) addressed and delivered to the Company and such Purchaser or
Transferee to the effect that such proposed purchaser of the Note(s) is not a
Competitor, provided that the Company has not, by written notice to such
Purchaser or Transferee delivered within five Business Days after the
Company's receipt of such certificate, objected to such reliance on the
grounds that the Company in good faith reasonably believes such proposed
purchaser of the Note(s) is a Competitor.
11R. TRANSFER RESTRICTIONS. Each holder of a Note agrees that it
will not sell, assign or otherwise transfer a Note (i) so long as no Event of
Default is continuing under paragraphs 7A(i), (ii), (viii), (ix) or (x), to
any Person who is a Competitor (determined in accordance with the last
sentence of paragraph 11Q), or (ii) to any Person who is not a United States
Person unless the transferee represents and warrants to such holder that, as
of the date of proposed transfer, it is entitled to receive interest payments
without withholding or deduction of any taxes and such transferee executes
and delivers to such holder on or before the date of transfer, a United
States Internal Revenue Service Form 1001 or 4224, or any successor to either
such forms, as appropriate, properly completed and claiming complete
exemption from withholding and deduction of all United States Federal income
taxes. As used herein "UNITED STATES PERSON"
36
means any citizen, national or resident of the United States, any corporation
or other entity created or organized in or under the laws of the United
States or any political subdivision thereof, or any estate or trust that, in
the case of any such estate or trust, is not subject to withholding of United
States Federal income taxes or other taxes on payment of interest or fees
hereunder.
[SIGNATURES ON FOLLOWING PAGE]
37
11S. BINDING AGREEMENT. When this Agreement is executed and
delivered by the Company and Prudential, it shall become a binding agreement
between the Company and Prudential. This Agreement shall also inure to and
each such Purchaser shall be bound by this Agreement to the extent provided
in such Confirmation of Acceptance.
Very truly yours,
MARTEN TRANSPORT, LTD.
By:
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President
and Chief Financial Officer
The foregoing Agreement is
hereby accepted as of the
date first above written.
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA
By:
-----------------------------
Vice President
38
EXHIBIT A-1
[FORM OF SERIES A NOTE]
MARTEN TRANSPORT, LTD.
6.78% SENIOR SERIES A NOTE DUE OCTOBER 30, 2008
No. ▇▇▇▇ ▇-▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
$25,000,000 October 30, 1998
FOR VALUE RECEIVED, the undersigned, MARTEN TRANSPORT, LTD., (herein
called the "Company"), a corporation organized and existing under the laws of
the State of Delaware, hereby promises to pay to THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA, or registered assigns, the principal sum of TWENTY-FIVE
MILLION DOLLARS on October 30, 2008, with interest (computed on the basis of
a 360-day year--30-day month) (a) on the unpaid balance thereof at the rate
of 6.78% per annum from the date hereof, payable on each January 30, April
30, July 30 and October 30, in each year, commencing on January 30, 1999,
until the principal hereof shall have become due and payable, and (b) on any
overdue payment (including any overdue prepayment) of principal, any overdue
payment of Yield-Maintenance Amount and any overdue payment of interest,
payable quarterly 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
greater of (i) 8.78% or (ii) 2.00% over the rate of interest publicly
announced by ▇▇▇▇▇▇ Guaranty Trust Company of New York from time to time in
New York City as its Prime Rate.
Payments of principal, Yield-Maintenance Amount, if any, and interest
are to be made at the main office of Bank of New York in New York City or at
such other place as the holder hereof shall designate to the Company in
writing, in lawful money of the United States of America.
This Note is one of a series of Senior Notes (herein called the "Notes")
issued pursuant to a Note Purchase and Private Shelf Agreement, dated as of
October 30, 1998 (herein called the "Agreement"), between the Company, on the
one hand, and The Prudential Insurance Company of America, and each
Prudential Affiliate which becomes party thereto, on the other hand, and is
entitled to the benefits thereof. As provided in the Agreement, this Note is
subject to prepayment, in whole or from time to time in part, in certain
cases without Yield-Maintenance Amount and in other cases with the
Yield-Maintenance Amount specified in the Agreement.
A-1-1
This Note is a registered Note and, as provided in the Agreement, upon
surrender of this Note for registration of transfer, duly endorsed, or
accompanied by a written instrument of transfer duly executed, by the
registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for the then outstanding 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 shall not be affected by
any notice to the contrary.
In case an Event of Default shall occur and be continuing, the principal
of this Note may be declared or otherwise become due and payable in the
manner and with the effect provided in the Agreement.
Capitalized terms used and not otherwise defined herein shall have the
meanings (if any) provided in the Agreement.
This Note is intended to be performed in the State of Illinois and shall
be construed and enforced in accordance with the internal law of such State.
MARTEN TRANSPORT, LTD.
By:
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Title:
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A-1-2