SEABOARD CORPORATION
NOTE PURCHASE AGREEMENT
DATED AS OF DECEMBER 1, 1993
$100,000,000 6.49% SENIOR NOTES DUE DECEMBER 1, 2005
TABLE OF CONTENTS
PAGE
1. PURCHASE AND SALE OF NOTES .........................1
1.1 Issue of Notes..............................1
1.2 The Closing.................................1
1.3 Purchase for Investment; ERISA..............2
1.4 Expenses....................................3
2. WARRANTIES AND REPRESENTATIONS......................3
2.1 Nature of Business..........................3
2.2 Financial Statements; Indebtedness;
Material Adverse Change.....................3
2.3 Subsidiaries and Affiliates.................4
2.4 Title to Properties.........................4
2.5 Taxes.......................................4
2.6 Pending Litigation..........................5
2.7 Full Disclosure.............................5
2.8 Corporate Organization and Authority........5
2.9 Charter Instruments, Other Agreements.......6
2.10 Restrictions on Company and Subsidiaries....6
2.11 Compliance with Law.........................6
2.12 ERISA.......................................7
2.13 Environmental Compliance....................7
2.14 Sale of Notes is Legal and Authorized;
Obligations are Enforceable.................8
2.15 Governmental Consent to Sale of Notes.......9
2.16 No Defaults under Notes.....................9
2.17 Private Offering of Notes...................9
2.18 Use of Proceeds of Notes....................9
3. CLOSING CONDITIONS..................................10
3.1 Opinions of Counsel.........................10
3.2 Warranties and Representations True.........10
3.3 Officers' Certificates......................10
3.4 Legality....................................10
3.5 Private Placement Number....................10
3.6 Expenses....................................11
3.7 Other Purchasers............................11
3.8 Proceedings Satisfactory....................11
4. PRINCIPAL PAYMENTS..................................11
4.1 Required Prepayments........................11
4.2 Optional Prepayments........................11
4.3 Prepayments Among Noteholders...............12
4.4 Special Prepayments.........................12
4.5 Notation of Notes on Prepayment.............13
4.6 No Other Prepayments; Acquisition of Notes..14
5. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES.......14
5.1 Registration of Notes.......................14
5.2 Exchange of Notes...........................14
5.3 Replacement of Notes........................15
5.4 Issuance Taxes..............................15
6. COVENANTS...........................................15
6.1 Payment of Taxes and Claims.................16
6.2 Maintenance of Properties; Corporate
Existence; etc..............................16
6.3 Payment of Notes and Maintenance of Office..17
6.4 Merger; Acquisition.........................17
6.5 Liens.......................................18
6.6 Consolidated Tangible Net Worth.............20
6.7 Funded Debt.................................20
6.8 Transfer of Property........................20
6.9 Subsidiary Debt.............................23
6.10 ERISA.......................................23
6.11 Line of Business............................24
6.12 Transactions with Affiliates................24
6.13 Guaranties..................................25
6.14 Private Offering............................25
7. INFORMATION AS TO COMPANY...........................25
7.1 Financial and Business Information..........25
7.2 Officers' Certificates......................28
7.3 Accountants' Certificates...................29
7.4 Inspection..................................29
8. EVENTS OF DEFAULT...................................29
8.1 Nature of Events............................29
8.2 Default Remedies............................31
8.3 Annulment of Acceleration of Notes..........32
9. INTERPRETATION OF THIS AGREEMENT....................32
9.1 Terms Defined...............................32
9.2 Generally Accepted Accounting Principles....44
9.3 Directly or Indirectly......................44
9.4 Section Headings and Table of Contents
and Construction............................45
9.5 Governing Law...............................45
10. MISCELLANEOUS.......................................45
10.1 Communications..............................45
10.2 Confidentiality.............................46
10.3 Reproduction of Documents...................46
10.4 Survival....................................47
10.5 Successors and Assigns......................47
10.6 Amendment and Waiver........................47
10.7 Payments on Notes...........................49
10.8 Entire Agreement............................49
10.9 Duplicate Originals, Execution in
Counterpart.................................49
Annex 1 - Information as to Purchasers
Annex 2 - Payment Instructions at Closing
Annex 3 - Information as to Company
Exhibit A - Form of 6.49% Senior Note Due December 1, 2005
Exhibit B1 - Form of Company Counsel's Closing Opinion
Exhibit B2 - Form of Special Counsel's Closing Opinion
Exhibit C - Form of Officers' Certificate
Exhibit D - Form of Secretary's Certificate
SEABOARD CORPORATION
NOTE PURCHASE AGREEMENT
$100,000,000 6.49% SENIOR NOTES DUE DECEMBER 1, 2005
Dated as of December 1, 1993
The Equitable Life Assurance Society of the United States
1285 Avenue of the Americas
New York, New York 10019
Ladies and Gentlemen:
SEABOARD CORPORATION (together with its successors and
assigns, the "Company"), a Delaware corporation, hereby agrees
with you as follows:
1. PURCHASE AND SALE OF NOTES
1.1 Issue of Notes.
The Company will authorize the issue of One Hundred Million
Dollars ($100,000,000) in aggregate principal amount of its six
and forty-nine one-hundredths percent (6.49%) Senior Notes due
December 1, 2005 (the "Notes"). The Notes shall be in the form
of Exhibit A hereto, and shall have the terms as herein and
therein provided.
1.2 The Closing.
(a) Purchase and Sale of Notes. The Company
hereby agrees to sell to you and you hereby agree to purchase
from the Company, in accordance with the provisions hereof, the
aggregate principal amount of Notes set forth below your name on
Annex 1 hereto at one hundred percent (100%) of the principal
amount thereof.
(b) The Closing. The closing (the "Closing") of
the Company's sale of Notes will be held on December 8, 1993 (the
"Closing Date") at 9:00 a.m., local time, at the office of Hebb &
Gitlin, your special counsel. At the Closing, the Company will
deliver to you one or more Notes (as set forth below your name on
Annex 1 hereto), in the denominations indicated on Annex 1
hereto, in the aggregate principal amount of your purchase, dated
the Closing Date and payable to you or payable as indicated on
Annex 1 hereto, against payment by federal funds wire transfer in
immediately available funds of the purchase price thereof, as
directed by the Company on Annex 2 hereto.
(c) Other Purchasers. Contemporaneously with the
execution and delivery hereof, the Company is entering into a
separate Note Purchase Agreement identical (except for the name
and signature of the purchaser) hereto (this Agreement and such
other separate Note Purchase Agreements collectively, the "Note
Purchase Agreements") with each other purchaser (each an "Other
Purchaser") listed on Annex 1 hereto, providing for the sale to
each Other Purchaser of Notes in the aggregate principal amount
set forth below its name on such annex. The sales of the Notes
to you and to each Other Purchaser are to be separate sales.
1.3 Purchase for Investment; ERISA.
(a) Purchase for Investment. You represent that
you are purchasing the Notes for your own account, for the
account of another for which you have sole investment discretion,
or for a trust account for which you are the trustee, and not
with a view to or for sale in connection with any distribution
thereof within the meaning of the Securities Act; provided, that
you have the right to dispose of the Notes, or any part thereof,
if you deem it advisable to do so, either pursuant to a
registration of the Notes under the Securities Act and other
applicable securities acts or pursuant to an applicable exemption
from the requirement of such registration. It is understood
that, in making the representations set out in Section 2.14
hereof and Section 2.15 hereof, the Company is relying, to the
extent applicable, upon your representation as aforesaid.
(b) ERISA. You represent either that:
(i) all of the funds being used by you to
acquire the Notes constitute assets of the general asset account
of an insurance company; or
(ii) if any part of the funds being used by
you to purchase the Notes shall come from assets of an employee
benefit plan or plan, that:
(A) if such funds are attributable to
a "separate account" (as defined in section 3 of ERISA), then
(1) all requirements for an
exemption under DOL Prohibited Transaction Exemption 90-1, issued
January 29, 1990 are met with respect to the use of such funds to
purchase the Notes, or
(2) the employee benefit plans
with an interest of ten percent (10%) or more in such separate
account have been identified in a writing delivered by you to the
Company;
(B) if such funds are attributable to
a "separate account" (as defined in section 3 of ERISA) that is
maintained solely in connection with fixed contracted obligations
of an insurance company, any amounts payable, or credited, to any
employee benefit plan having an interest in such account and to
any participant of beneficiary of such plan (including an
annuitant) are not affected in any manner by the investment
performance of the separate account;
(C) if such funds are attributable to
an investment fund managed by a qualified plan asset manager (as
such terms are defined in Part V of DOL Prohibited Transaction
Exemption 84-14, issued March 13, 1984), all requirements for an
exemption under such Exemption are met with respect to the use of
such funds to purchase the Notes; or
(D) such employee benefit plan is
excluded from the provisions of section 406 of ERISA by virtue of
section 4(b) of ERISA.
1.4 Expenses.
Whether or not the Notes are sold, the Company shall pay, at
the Closing (if the Notes are sold, and otherwise upon receipt of
any statement or invoice therefor), the statement presented at
the Closing by your special counsel for reasonable fees and
disbursements incurred in connection herewith, each additional
statement for reasonable fees and disbursements (promptly upon
receipt thereof) of your special counsel rendered after the
Closing in connection with the issuance of the Notes, and all
expenses incurred in complying with each of the conditions to
closing set forth in Section 3 hereof.
2. WARRANTIES AND REPRESENTATIONS
To induce you to enter into this Agreement and to purchase
the Notes listed on Annex 1 hereto below your name, the Company
warrants and represents, as of the Closing Date, as follows:
2.1 Nature of Business.
The Private Placement Memorandum (together with all exhibits
and annexes thereto, the "Placement Memorandum"), dated August
1993, and prepared by Merrill Lynch, Pierce, Fenner & Smith
Incorporated (a copy of which previously has been delivered to
you), correctly described the general nature of the business and
principal Properties of the Company and the Subsidiaries as of
the Closing Date.
2.2 Financial Statements; Indebtedness; Material Adverse
Change.
(a) Financial Statements. The Company has
provided you with the financial statements described in Part
2.2(a) of Annex 3 hereto. Such financial statements have been
prepared in accordance with generally accepted accounting
principles consistently applied, and present fairly, in all
material respects, the consolidated financial position of the
Company and its consolidated subsidiaries as of such dates and
the results of their operations and cash flows for such periods.
(b) Indebtedness. Part 2.2(b) of Annex 3 hereto
lists all Indebtedness of the Company and the Subsidiaries as of
the Closing Date, and provides the following information with
respect to each item of such Indebtedness: the obligor, the
holder thereof, the outstanding amount, the current portion, and
the collateral securing such Indebtedness, if any.
(c) Material Adverse Change. Since December 31,
1992 there has been no change in the business, prospects,
profits, Properties or condition (financial or otherwise) of the
Company or any of the Subsidiaries except changes in the ordinary
course of business that, in the aggregate for all such changes,
could not reasonably be expected to have a Material Adverse
Effect.
2.3 Subsidiaries and Affiliates.
Part 2.3 of Annex 3 hereto states
(a) the name of each of the Subsidiaries, its
jurisdiction of incorporation and the percentage of its Voting
Stock owned by the Company and each other Subsidiary, and
identifies each Material Subsidiary, and
(b) the name of each Affiliate (other than
natural persons who are Affiliates solely as a result of their
membership in the families of officers or directors) and the
nature of the affiliation.
Each of the Company and the Subsidiaries has good and marketable
title to all of the shares it purports to own of the stock of
each Subsidiary, free and clear in each case of any Lien. All
such shares have been duly issued and are fully paid and
nonassessable.
2.4 Title to Properties.
(a) Each of the Company and the Subsidiaries has
good title to all of the Property reflected in the most recent
balance sheet referred to in Section 2.2 hereof (except as sold
or otherwise disposed of in the ordinary course of business),
except for such failures to have good title as are immaterial to
such financial statements and that, in the aggregate for all such
failures, could not reasonably be expected to have a Material
Adverse Effect. All such Property is free from Liens not
permitted by Section 6.5 hereof.
(b) Each of the Company and the Subsidiaries
owns, possesses or has the right to use all of the patents,
trademarks, service marks, trade names, copyrights, licenses, and
rights with respect thereto, necessary for the present and
currently planned future conduct of its business, without any
known conflict with the rights of others, except for such
failures to own, possess, or have the right to use, that, in the
aggregate for all such failures, could not reasonably be expected
to have a Material Adverse Effect.
2.5 Taxes.
(a) Returns Filed; Taxes Paid.
(i) All tax returns required to be filed by
each of the Company and each Subsidiary and any other Person with
which the Company or any subsidiary files or has filed a
consolidated return in any jurisdiction have been filed on a
timely basis, and all taxes, assessments, fees and other
governmental charges upon each of the Company, such Subsidiary
and any such Person, and upon any of the respective Properties,
income or franchises, that are due and payable have been paid,
except for such tax returns and such tax payments that could not,
in the aggregate for all such tax returns and payments,
reasonably be expected to have a Material Adverse Effect.
(ii) All liabilities of each of the Company,
the Subsidiaries and the other Persons referred to in Section
2.5(a)(i) hereof with respect to federal income taxes have been
finally determined except for the fiscal years 1988 through 1993,
the only years not closed by the completion of an audit or the
expiration of the statute of limitations.
(b) Book Provisions Adequate.
(i) The amount of the liabilities for taxes
reflected in each of the consolidated balance sheets referred to
in Section 2.2 hereof is in each case an adequate provision for
taxes as of the dates of such balance sheets (including, without
limitation, any payment due pursuant to any tax sharing
agreement) as are or may become payable by any one or more of the
Company and the other Persons consolidated with the Company in
such financial statements in respect of all tax periods ending on
or prior to such dates.
(ii) The Company does not know of any
proposed additional tax assessment against it or any such Person
that is not reflected in full in the most recent balance sheet
referred to in Section 2.2 hereof.
2.6 Pending Litigation.
(a) There are no proceedings, actions or
investigations pending or, to the knowledge of the Company,
threatened against or affecting the Company or any Subsidiary in
any court or before any Governmental Authority or arbitration
board or tribunal that, in the aggregate for all such
proceedings, actions and investigations, could reasonably be
expected to have a Material Adverse Effect.
(b) Neither the Company nor any Subsidiary is in
default with respect to any judgement, order, writ, injunction or
decree of any court, Governmental Authority, arbitration board or
tribunal that, in the aggregate for all such defaults, could
reasonably be expected to have a Material Adverse Effect.
2.7 Full Disclosure.
The financial statements referred to in Section 2.2 hereof
do not, nor does this Agreement, the Placement Memorandum or any
written statement furnished by or on behalf of the Company to you
in connection with the negotiation or the closing of the sale of
the Notes contain any untrue statement of a material fact or omit
a material fact necessary to make the statements contained
therein and herein not misleading. There is no fact that the
Company has not disclosed to you in writing that has had or, so
far as the Company can now reasonably foresee, could reasonably
be expected to have, a Material Adverse Effect.
2.8 Corporate Organization and Authority.
Each of the Company and the Material Subsidiaries
(a) is a corporation duly incorporated, validly
existing and in good standing under the laws of its jurisdiction
of incorporation,
(b) has all legal and corporate power and authority
to own and operate its Properties and to carry on its business as
now conducted and as presently proposed to be conducted,
(c) has all licenses, certificates, permits,
franchises and other governmental authorizations necessary to own
and operate its Properties and to carry on its business as now
conducted and as presently proposed to be conducted, except where
the failure to have such licenses, certificates and permits,
franchises and other governmental authorizations, in the
aggregate for all such failures, could not reasonably be expected
to have a Material Adverse Effect, and
(d) has duly qualified or has been duly licensed,
and is authorized to do business and is in good standing, as a
foreign corporation in each state in the United States of America
and in each other jurisdiction where the failure to be so
qualified or licensed and authorized and in good standing, in the
aggregate for all such failures, could reasonably be expected to
have a Material Adverse Effect.
2.9 Charter Instruments, Other Agreements.
Neither the Company nor any Subsidiary is in violation in
any respect of any term of any charter instrument or bylaw.
Neither the Company nor any Subsidiary is in violation in any
respect of any term in any agreement or other instrument to which
it is a party or by which it or any of its Property may be bound
expect for such failures that, in the aggregate for all such
failures, could not reasonably be expected to have a Material
Adverse Effect.
2.10 Restrictions on Company and Subsidiaries.
Neither the Company nor any Subsidiary:
(a) is a party to any contract or agreement, or
subject to any charter or other corporate restriction that, in
the aggregate for all such contracts, agreements, charters and
corporate restrictions, could reasonably be expected to have a
Material Adverse Effect;
(b) is a party to any contract or agreement that
restricts the right or ability of such corporation to incur
Indebtedness, other than this Agreement and the agreements listed
in Part 2.10 of Annex 3 hereto, none of which restricts the
issuance and sale of the Notes or the performance of the Company
hereunder or under the Notes, and true, correct and complete
copies of each of which have been provided to you; and
(c) has agreed or consented to cause or permit
in the future (upon the happening of a contingency or otherwise)
any of its Property, whether now owned or hereafter acquired, to
be subject to a Lien not permitted by Section 6.5 hereof.
2.11 Compliance with Law.
Neither the Company nor any Subsidiary is in violation of
any law, ordinance, governmental rule or regulation to which it
is subject, which violations, in the aggregate, could reasonably
be expected to have a Material Adverse Effect.
2.12 ERISA.
(a) Prohibited Transactions. Neither the
execution of this Agreement nor the purchase of the Notes by you
will constitute a "prohibited transaction" (as such term is
defined in section 406 of ERISA or section 4975 of the IRC). The
representation by the Company in the preceding sentence is made
in reliance upon and subject to the accuracy of the
representations in Section 1.3(b) hereof as to the source of
funds used by you.
(b) Pension Plans.
(i) Compliance with ERISA. The Company
and the ERISA Affiliates are in compliance with ERISA, except for
such failures to comply that, in the aggregate for all such
failures, could not reasonably be expected to have a Material
Adverse Effect.
(ii) Funding Status. No accumulated
funding deficiency (as defined in section 302 of ERISA and
section 412 of the IRC), whether or not waived, exists with
respect to any Pension Plan.
(iii) PBGC. No liability to the PBGC has
been or is expected to be incurred by the Company or any ERISA
Affiliate with respect to any Pension Plan that, individually or
in the aggregate, could reasonably be expected to have a Material
Adverse Effect. No circumstance exists that constitutes grounds
under section 4042 of ERISA entitling the PBGC to institute
proceedings to terminate, or appoint a trustee to administer, any
Pension Plan or trust created thereunder, nor has the PBGC
instituted any such proceeding.
(iv) Multiemployer Plans. Neither the
Company nor any ERISA Affiliate has incurred or presently expects
to incur any withdrawal liability under Title IV of ERISA with
respect to any Multiemployer Plan. There have been no
"reportable events" (as such term is defined in section 4043 of
ERISA) with respect to any Multiemployer Plan that could result
in the termination of such Multiemployer Plan and give rise to a
liability of the Company or any ERISA Affiliate in respect
thereof.
(v) Foreign Pension Plan. The present
value of all benefits vested under each Foreign Pension Plan,
determined as of the most recent valuation date in respect
thereof, does not exceed the value of the assets of such Foreign
Pension Plan, and all required payments in respect of the funding
of such Foreign Pension Plan have been made.
2.13 Environmental Compliance.
(a) Compliance. Each of the Company and the
Subsidiaries is in compliance with all Environmental Protection
Laws in effect in each jurisdiction where it is currently doing
business and in which the failure so to comply, in the aggregate
for all such failures, could reasonably be expected to have a
Material Adverse Effect.
(b) Liability. Neither the Company nor any
Subsidiary is subject to any liability under any Environmental
Protection Laws that, in the aggregate for all such liabilities,
could reasonably be expected to have a Material Adverse Effect.
(c) Notices. Neither the Company nor any
Subsidiary has received any
(i) notice from any Governmental Authority
by which any of its currently or previously owned or leased
Properties has been identified in any manner by any Governmental
Authority as a hazardous substance disposal or removal site,
"Super Fund" clean-up site, or candidate for removal or closure
pursuant to any Environmental Protection Law,
(ii) notice of any Lien arising under or in
connection with any Environmental Protection Law that has
attached to any revenues of, or to, any of its currently or
previously owned or leased Properties, or
(iii) any communication, written or oral,
from any Governmental Authority concerning action or omission by
the Company or such Subsidiary in connection with its currently
or previous owned or leased Properties resulting in the release
of any hazardous substance resulting in any violation of any
Environmental Protection Law,
in each case where the effect of which, in the aggregate for all
such notices and communications, could reasonably be expected to
have a Material Adverse Effect.
2.14 Sale of Notes is Legal and Authorized; Obligations
are Enforceable.
(a) Sale of Notes is Legal and Authorized. Each
of the issuance, sale and delivery of the Notes by the Company,
the execution and delivery hereof by the Company and compliance
by the Company with all of the provisions hereof and of the
notes:
(i) is within the corporate powers of the
Company; and
(ii) is legal and does not conflict with,
result in any breach of any of the provisions of, constitutes a
default under, or result in the creation of any Lien upon any
Property of the Company or any Subsidiary under the provisions
of, any agreement, charter instrument, bylaw or other instrument
to which it is a party or by which it or any of its Property may
be bound.
(b) Obligations are Enforceable. Each of this
Agreement and the Notes has been duly authorized by all necessary
action on the part of the Company, has been executed and
delivered by duly authorized officers of the Company, and
constitutes a legal, valid and binding obligation of the Company,
enforceable in accordance with its terms, except that the
enforceability hereof and of the Notes may be:
(i) limited by applicable bankruptcy,
reorganization, arrangement, insolvency, moratorium, or other
similar laws affecting the enforceability of creditors' rights
generally; and
(ii) subject to the availability of
equitable remedies.
2.15 Governmental Consent to Sale of Notes.
Neither the nature of the Company or any Subsidiary, or of
any of their respective businesses or Properties, nor any
relationship between the Company or any Subsidiary and any other
Person, nor any circumstance in connection with the offer,
issuance, sale or delivery of the Notes and the execution and
delivery of this Agreement, is such as to require a consent,
approval or authorization of, or filing, registration or
qualification with, any Governmental Authority on the part of the
Company as a condition to the execution and delivery of this
Agreement or the offer, issuance, sale or delivery of the Notes.
Neither the Company nor any Subsidiary is subject to regulation
under the Investment Company Act of 1940 as amended, the Public
Utility Holding Company Act of 1935 as amended, the Interstate
Commerce Act as amended or the Federal Power Act as amended.
2.16 No Defaults under Notes.
No event has occurred and no condition exists that, upon the
execution and delivery of this Agreement and the issuance and
sale of the Note would constitute a Default or an Event of
Default.
2.17 Private Offering of Notes.
Neither the Company nor Merrill Lynch, Pierce, Fenner &
Smith Incorporated (the only Person authorized or employed by the
Company as agent, broker, dealer or otherwise in connection with
the offering or sale of the Notes or any similar Security of the
Company, other than employees of the Company) has offered any of
the Notes or any similar Security of the Company for sale to, or
solicited offers to buy any thereof from, or otherwise approached
or negotiated with respect thereto with, any prospective
purchaser, other than you and one hundred seven (107) other
institutional investors, each of whom was offered all or a
portion of the Notes at private sale for investment.
2.18 Use of Proceeds of Notes.
(a) Use of Proceeds. The Company shall use the
proceeds of the sale of the Notes as set forth on Part 2.17 of
Annex 3 hereto.
(b) Margin Securities. None of the transactions
contemplated herein and in the Notes (including, without
limitation, the use of the proceeds from the sale of the Notes)
violates, will violate or will result in a violation of section 7
of the Exchange Act, or any regulations issued pursuant thereto,
including, without limitation, Regulation G, Regulation T and
Regulation X of the Board of Governors of the Federal Reserve
System, 12 C.F.R., Chapter II. Neither the Company nor any
Subsidiary, with the proceeds of the sale of the Notes, intends
to carry or purchase, or refinance borrowings that were used to
carry or purchase, any "margin stock" (as defined by said
Regulation G), including margin stock originally issued by the
Company or any Subsidiary.
(c) Absence of Foreign or Enemy Status. Neither
the sale of the Notes nor the use of proceeds from the sale
thereof will result in a violation of any of the foreign assets
control regulations of the United States Treasury Department (31
CFR, Subtitle B, Chapter V, as amended), or any ruling issued
thereunder or any enabling legislation or Presidential Executive
Order in connection therewith.
3. CLOSING CONDITIONS
Your obligation to purchase and pay for the Notes to be
delivered to you at the Closing is subject to the conditions
precedent set forth in this Section 3. The failure of the
Company to satisfy such conditions shall not operate to waive any
of your rights against the Company.
3.1 Opinions of Counsel.
You shall have received from
(a) Sullivan & Worcester, counsel for the
Company, and
(b) Hebb & Gitlin, your special counsel,
closing opinions, each dated as of the Closing Date,
substantially in the respective forms set forth in Exhibit B1 and
Exhibit B2 hereto and as to such other matters as you may
reasonably request. This Section 3.1 shall constitute direction
by the Company to such counsel named in the foregoing clause (a)
to deliver such closing opinion to you.
3.2 Warranties and Representations True.
The warranties and representations contained in Section 2
hereof shall be true on the Closing Date with the same effect as
though made on and as of the date.
3.3 Officers' Certificates.
You shall have received
(a) a certificate dated the Closing Date and
signed by two Senior Officers, substantially in the form of
Exhibit C hereto, and
(b) a certificate dated the Closing Date and
signed by the Secretary or an Assistant Secretary of the Company,
substantially in the form of Exhibit D hereto.
3.4 Legality.
The Notes shall on the Closing Date qualify as a legal
investment for you under applicable insurance law (without regard
to any "basket" or "leeway" provisions), and you shall have
received such evidence as you may reasonably request to establish
compliance with this condition.
3.5 Private Placement Number.
The Company shall have obtained or caused to be obtained a
private placement number for the Notes from the CUSIP Service
Bureau of Standard & Poor's Corporation and you shall have been
informed of such private placement number.
3.6 Expenses.
All fees and disbursements required to be paid pursuant to
Section 1.4 hereof shall have been paid in full.
3.7 Other Purchasers.
None of the Other Purchasers shall have failed to execute and
deliver a Note Purchase Agreement or to accept delivery of or
make payment for the Notes to be purchased by it on the Closing
Date.
3.8 Proceedings Satisfactory.
All proceedings taken in connection with the issuance and
sale of the Notes and all documents and papers relating thereto
shall be satisfactory to you and your special counsel. You and
your special counsel shall have received copies of such documents
and papers as you or they may reasonably request in connection
therewith or in connection with your special counsel's closing
opinion, all in form and substance satisfactory to you and your
special counsel.
4. PRINCIPAL PAYMENTS
4.1 Required Prepayments.
The Company shall pay, and there shall become due and
payable, Twenty Million Dollars ($20,000,000) in principal amount
of the Notes on December 1 in each year beginning on December 1,
2001, and ending on December 1, 2005, inclusive (each, a
"Required Principal Payment"). Each such Required Principal
Payment shall be at one hundred percent (100%) of the principal
amount prepaid, together with interest accrued thereon to the
date of prepayment. The entire principal of the Notes remaining
outstanding on December 1, 2005, together with interest accrued
thereon, shall become due and payable on December 1, 2005.
4.2 Optional Prepayments.
(a) Optional Prepayments. The Company may
prepay the principal amount of the Notes in whole or in part, at
any time, in multiples of Ten Million Dollars ($10,000,000) (or,
if the aggregate outstanding principal amount of the Notes is
less than Ten Million Dollars ($10,000,000) at such time, then
such principal amount), together with
(i) an amount equal to the Make-Whole
Amount due at such time in respect of the principal amount of the
Notes being so prepaid, and
(ii) interest on such principal amount then
being prepaid accrued to the prepayment date.
(b) Notice of Optional Prepayment. The Company
will give notice of any optional prepayment of the Notes to each
holder of Notes not less than thirty (30) days or more than sixty
(60) days before the date fixed for prepayment, specifying:
(i) such date;
(ii) the Section hereof under which the
prepayment is to be made;
(iii) the principal amount of each Note to be
prepaid on such date;
(iv) the interest to be paid on each such
Note, accrued to the date fixed for payment;
(v) the amounts and dates of the remaining
Required Principal Payments, after giving effect to such
prepayment; and
(vi) the calculation (with details) of an
estimated Make-Whole Amount, if any, (calculated as if the date
of such notice was the date of prepayment) due in connection with
such prepayment.
Notice of prepayment having been so given, the aggregate
principal amount of the Notes to be prepaid specified in such
notice, together with the Make-Whole Amount as of the specified
prepayment date with respect thereto, if any, and accrued
interest thereon shall become due and payable on the specified
prepayment date. Two (2) Business Days prior to the making of
such prepayment, the Company shall deliver to each holder of
Notes by facsimile transmission a certificate of a Senior
Financial Officer specifying the details of the calculation of
such Make-Whole Amount as of the specified prepayment date.
(c) Effect of Partial Prepayments on Required
Prepayments. Each partial prepayment of the principal of the
Notes made pursuant to this Section 4.2 shall be applied against
and reduce each of the then remaining Required Principal Payments
by a percentage equal to the aggregate principal amount of the
Notes so prepaid divided by the aggregate principal amount of the
Notes outstanding immediately prior to such prepayment.
4.3 Prepayments Among Noteholders.
If at the time any prepayment of the principal of the Notes
made pursuant to Section 4.1 or Section 4.2 hereof is due there
is more than one Note outstanding, the aggregate principal amount
of each required or optional partial prepayment of the Notes
shall be allocated among the holders of the Notes at the time
outstanding in proportion to the respective unpaid principal
amounts of the Notes then outstanding.
4.4 Special Prepayments
(a) Prepayments of the Notes. The Company shall,
in connection with any Transfer permitted to occur solely
pursuant to Section 6.8(a)(vi) hereof, make one offer to prepay
the Notes in connection with each such Transfer, provided that
each of the following conditions shall be satisfied in respect
thereof:
(i) The aggregate amount of the offer
(the "Offered Prepayment Amount") shall be greater than or equal
to the Net Transfer Proceeds of such Transfer.
(ii) The Company shall irrevocably offer
such Offered Prepayment Amount in a writing delivered to each
holder of Notes not more than thirty (30) days after the date of
the substantial completion of such Transfer (the "Transfer Date")
for the prepayment of the Notes (together with any Make-Whole
Amount and interest accrued and unpaid thereon). Such written
offer will refer to this Section 4.4, will briefly describe such
Transfer, will specify the date fixed for the making of such
prepayment (which shall not be less than ninety (90) days after,
nor more than one hundred twenty (120) days after, such Transfer
Date), and the amount of such Offered Prepayment Amount, in the
aggregate and in respect of each holder of Notes, and will
provide detailed calculation supporting the foregoing. The
Company shall deliver such written notice a second time ten days
after the original sending of such notice to each holder of a
Note which has not accepted or rejected such Offered Prepayment
within ten (10) days of the original sending of such notice, and
confirm receipt by telephone call to the recipient. Each holder
of a Note which does not reject such offer in writing within
thirty (30) days of the original sending of such notice shall be
deemed to have accepted such offer.
(iii) The Company shall pay to each holder of
a Note which shall have accepted such offer such holder's ratable
share of the Offered Prepayment Amount (such ratable amount being
determined on the basis of the aggregate principal amount of all
Notes outstanding the holders of which shall have accepted such
offer), and such ratable share shall be applied the principal of
each such Note. The Company shall, in addition, pay all interest
on each such Note accrued to the date of payment, and the Make-
Whole Amount, if any, due in respect of such payment.
(iv) The payment of such Offered Prepayment
Amount to the holders of Notes which shall have accepted such
offer shall be made on the date specified in the notice required
by Section 4.4(a)(ii) hereof (or if such day shall not be a
Business Day, on the Business Day most nearly preceding such
date). The Company will comply with the requirements of Section
4.2(b) hereof with respect to such prepayment.
(b) Effect of Special Prepayments on Required
Prepayments. Each prepayment of the principal of the Notes made
pursuant to this Section 4.4 shall be applied against and reduce
each of the then remaining Required Principal Payments by a
percentage equal to the aggregate principal amount of the Notes
so prepaid divided by the aggregate principal amount of the Notes
outstanding immediately prior to such prepayment.
4.5 Notation of Notes on Prepayment.
Upon any partial prepayment of a Note, the holder of such
Note may (but shall not be required to), at its option,
(a) surrender such Note to the Company pursuant
to Section 5.2 hereof in exchange for a New Note in a principal
amount equal to the principal amount remaining unpaid on the
surrendered Note,
(b) make such Note available to the Company for
notation thereon of the portion of the principal so prepaid, or
(c) mark such Note with a notation thereon of the
portion of the principal so prepaid.
In case the entire principal amount of any Note is prepaid, such
Note shall be surrendered to the Company for cancellation and
shall not be reissued, and no Note shall be issued in lieu of the
prepaid principal amount of any Note.
4.6 No Other Prepayments; Acquisition of Notes.
Except for prepayments made in accordance with this Section
4, the Company may not make any prepayment of principal in
respect of the Notes. The Company will not, nor will it permit
any Subsidiary or any Affiliate to, directly or indirectly,
acquire or make any offer to acquire any Notes unless the Company
or such Subsidiary or Affiliate shall have offered to acquire
Notes, pro rata, from all holders of the Notes upon the same
terms. In case the Company acquires any Notes, such Notes will
thereafter be cancelled and no Notes will be issued in
substitution therefor. Each partial repurchase of Notes by the
Company shall be applied against and reduce each of the then
remaining Required Principal Payments by a percentage equal to
the aggregate principal amount of the Notes so prepaid divided by
the aggregate principal amount of the Notes outstanding
immediately prior to such prepayment.
5. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES
5.1 Registration of Notes.
The Company will keep at its office, maintained pursuant
to Section 6.3 hereof, a register for the registration and
transfer of Notes. The name and address of each holder of one or
more Notes, each transfer thereof and the name and address of
each transferee of one or more Notes shall be registered in such
register. The Person in whose name any Note shall be registered
shall be deemed and treated as the owner and holder thereof for
all purposes hereof, and the Company shall not be affected by any
notice or knowledge to the contrary.
5.2 Exchange of Notes.
(a) Exchange of Notes. Upon surrender of any
Note at the office of the Company maintained pursuant to Section
6.3 hereof duly endorsed or accompanied by a written instrument
of transfer duly executed by the registered holder of such Note
or such holder's attorney duly authorized in writing, the Company
will execute and deliver, at the Company's expense (except as
provided below), new Notes in exchange therefor, in an aggregate
principal amount equal to the unpaid principal amount of the
surrendered Note. Each such new Note shall be payable to such
Person as such holder may request and shall be substantially in
the form of Exhibit A hereto. Each such new Note shall be dated
and bear interest from the date to which interest shall have been
paid on the surrendered Note or dated the date of the surrendered
Note if no interest shall have been paid thereon. The Company
may require payment of a sum sufficient to cover any stamp tax or
governmental charge imposed in respect of any such transfer of
Notes. Notes shall not be transferred in denominations of less
than Two Hundred Thousand Dollars ($200,000) provided that a
holder of Notes may transfer its entire holding of Notes
regardless of the principal amount of such holder's Notes.
(b) Costs. The Company will pay the cost of
delivering to or from such holder's home office or custodian bank
from or to the Company, insured to the reasonable satisfaction of
such holder, the surrendered Note and any Note issued in
substitution or replacement for the surrendered Note.
(c) Actions of Noteholder. Each holder of Notes
agrees that in the event it shall sell or transfer any Note
without surrendering such Note to the Company as set forth in
Section 5.2(a) hereof, it shall
(i) prior to the delivery of such Note
make a notation thereon of all principal, if any, prepaid on such
Note and shall also indicate thereon the date to which interest
shall have been paid on such Note, and
(ii) promptly notify the Company of the
name and address of the transferee of any such Note so
transferred and the effective date of such transfer.
(d) Compliance with Securities Laws. Each
holder of Notes agrees that each sale or transfer of Notes made
by it shall be made in compliance with all applicable securities
laws.
5.3 Replacement of Notes.
Upon receipt by the Company of evidence reasonably
satisfactory to it of the ownership of and the loss, theft,
destruction or mutilation of any Note (which evidence shall be,
in the case of an institutional investor, notice from such
institutional investor of such ownership (or of ownership by such
institutional investor's nominee) and such loss, theft,
destruction or mutilation), and
(a) in the case of loss, theft or destruction,
of indemnity reasonably satisfactory to the Company (provided
that if the holder of such Note is an institutional investor or a
nominee of an institutional investor, such holder's own unsecured
agreement of indemnity shall be deemed to be satisfactory), or
(b) in the case of mutilation, upon surrender
and cancellation thereof,
the Company at its own expense will execute and deliver, in lieu
thereof, a new Note, dated and bearing interest from the date to
which interest shall have been paid on such lost, stolen,
destroyed or mutilated Note or dated the date of such lost,
stolen, destroyed or mutilated Note if no interest shall have
been paid thereon.
5.4 Issuance Taxes.
The Company will pay all taxes (if any) due in connection
with and as a result of the initial issuance and sale of the
Notes and in connection with any modification of this Agreement
or the Notes and shall save each holder of Notes harmless without
limitation as to time against any and all liabilities with
respect to all such taxes.
6. COVENANTS
The Company covenants that on and after the Closing Date
and so long as any of the Notes shall be outstanding:
6.1 Payment of Taxes and Claims.
The Company will, and will cause each Subsidiary to, pay
before they become delinquent,
(a) all taxes, assessments and governmental
charges or levies imposed upon it or its Property, and
(b) all claims or demands of materialmen,
mechanics, carriers, warehousemen, vendors, landlords and other
like Persons that, if unpaid, might result in the creation of a
Lien upon its Property,
provided, that items of the foregoing description need not be
paid so long as
(i) such items are being actively
contested in good faith and by appropriate proceedings,
(ii) adequate book reserves have been
established and maintained with respect thereto, and
(iii) such items, in the aggregate, could
not reasonably be expected to have a Material Adverse Effect.
6.2 Maintenance of Properties; Corporate Existence; etc.
The Company will, and will cause each Material Subsidiary
to:
(a) Property -- maintain its Property in a
condition sufficient to permit its ordinary operation, ordinary
wear and tear and obsolescence excepted, and make all necessary
renewals, replacements, additions, betterments and improvements
thereto;
(b) Insurance -- maintain, with financially sound
and reputable insurers, insurance with respect to its Property
and business against such casualties and contingencies, of such
types and in such amounts as is customary in the case of
corporations of established reputations engaged in the same or a
similar business and similarly situated;
(c) Financial Records -- keep accurate and complete
books of records and accounts that permit the provision of
accurate and complete financial statements in accordance with
GAAP;
(d) Corporate Existence and Rights -- do or cause
to be done all things necessary to preserve and keep in full
force and effect its corporate existence, rights (charter and
statutory) and franchises, except where the failure to do so, in
the aggregate, could not reasonably be expected to have a
Material Adverse Effect; and
(e) Compliance with Law -- not be in violation of
any law, ordinance or governmental rule or regulation to which it
is subject (including, without limitation, any Environmental
Protection Law) and not fail to obtain any license, certificate,
permit, franchise or other governmental authorization necessary
to the ownership of its Properties or to the conduct of its
business if such violations or failures to obtain, in the
aggregate, could reasonably be expected to have a Material
Adverse Effect or, in the aggregate, a material adverse effect on
the ability of the Company or any Subsidiary to conduct in the
future the business it conducts at the time of such violation or
failure to obtain.
6.3 Payment of Notes and Maintenance of Office.
The Company will punctually pay, or cause to be paid, the
principal of and interest (and Make-Whole Amount, if any) on, the
Notes, as and when the same shall become due according to the
terms hereof and of the Notes, and will maintain an office at the
address of the Company set forth in Section 10.1 hereof where
notices, presentations and demands in respect hereof or the Notes
may be made upon it. Such office will be maintained at such
address until such time as the Company shall notify the holders
of the Notes of any change of location of such office, which will
in any event be located within the United States of America.
6.4 Merger; Acquisition.
(a) Merger and Consolidation. The Company will not
merge into or consolidate with, or sell, lease, transfer or
otherwise dispose of all or substantially all of its Property to,
any other Person or permit any other Person to consolidate with
or merge into it; provided that the foregoing restriction does
not apply to the merger or consolidation of the Company with, or
the sale, lease, transfer or other disposition by the Company of
all or substantially all of its Property to, another corporation,
if:
(i) the corporation that results from such
merger or consolidation or that purchases, leases, or acquires
all or substantially all of such Property (the "Successor
Corporation") is organized under the laws of the United States of
America or any jurisdiction thereof;
(ii) the due and punctual payment of the
principal of and Make-Whole Amount, if any, and interest on all
of the Notes, according to their tenor, and the due and punctual
performance and observance of all the covenants in the Notes and
this Agreement to be performed or observed by the Company, are
expressly assumed by the Successor Corporation pursuant to such
agreements and instruments with respect to such assumption as
shall be approved by the Required Holders, and the Company causes
to be delivered to each holder of Notes an opinion of independent
counsel satisfactory to the Required Holders to the effect that
such agreements and instruments are enforceable in accordance
with their terms and the terms hereof;
(iii) The Notes rank at least pari passu with
all other Indebtedness of the Successor Corporation (provided
that this Section 6.4(a)(iii) shall not prohibit the existence of
Indebtedness secured by Liens that do not violate Section 6.5
hereof); and
(iv) immediately prior to, and immediately
after the consummation of the transaction, and after giving
effect thereto, no Default or Event of Default would exist under
any provision hereof.
(b) Acquisition of Stock. The Company will not
acquire any stock of any corporation if upon completion of such
acquisition such corporation would be a Subsidiary, or acquire
all of the Property of, or such of the Property as would permit
the transferee to continue any one or more integral business
operations of, any Person unless, immediately after the
consummation of such acquisition, and after giving effect
thereto, no Default or Event of Default exists or would exist
under any provision hereof.
6.5 Liens
(a) Negative Pledge. The Company will not, and
will not permit any Subsidiary to, cause or permit to exist, or
agree or consent to cause or permit to exist in the future (upon
the happening of a contingency or otherwise), any of their
Property, whether now owned or hereafter acquired, to be subject
to a Lien except:
(i) Taxes, etc. -- Liens securing taxes,
assessments or governmental charges or levies or the claims or
demands of materialmen, mechanics, carriers, warehousemen,
landlords and other like Persons, provided that the payment
thereof is not required by Section 6.1 hereof;
(ii) Court Proceedings -- Liens arising from
judicial attachments and judgments, securing appeal bonds or
supersedeas bonds, or arising in connection with pending court
proceedings (including, without limitation, surety bonds and
letters of credit or any other instrument serving a similar
purpose), provided that the execution or other enforcement of
such Liens is effectively stayed and the claims secured thereby
are being actively contested in good faith and by appropriate
proceedings, and provided further that the aggregate amount so
secured (minus the amount of insurance that is available to pay
such amounts and over which no dispute regarding coverage has
occurred or is threatened) will not at any time exceed six
percent (6%) of Consolidated Shareholders' Equity.
(iii) Ordinary Course Business Liens -- Liens
incurred or deposits made in the ordinary course of business
(A) in connection with workers'
compensation, unemployment insurance, social security and other
like laws, and
(B) to secure the performance of
letters of credit, bids, tenders, sales contracts, leases,
statutory obligations, surety and performance bonds (of a type
other than set forth in Section 6.5(a)(ii) hereof) and other
similar obligations
not incurred in connection with the borrowing of money,
the obtaining of advances or the payment of the deferred purchase
price of Property;
(iv) Real Property Liens -- Liens in the nature
of reservations, exceptions, encroachments, easements, rights-of-
way, covenants, conditions, restrictions, leases and other
similar title exceptions or encumbrances affecting real property,
provided that such exceptions and encumbrances do not in the
aggregate materially detract from the value of said Properties or
materially interfere with the use of such Property in the
ordinary conduct of the business of the Company and the
Subsidiaries;
(v) Closing Date Liens --
(A) Liens in existence on the Closing
Date and described on Part 6.5 of Annex 3 hereto, and
(B) Liens securing renewals,
extensions (as to time) and refinancings of Indebtedness secured
by the Liens described on Part 6.5 Annex 3 hereto, provided that
the amount of Indebtedness secured by each such Lien is not
increased in excess of the amount of Indebtedness outstanding on
the date of such renewal, extension or refinancing, and none of
such Liens is extended to include any additional Property of the
Company or any Subsidiary;
(vi) Intergroup Liens -- Liens on Property of a
Subsidiary, provided that such Liens secure only obligations
owing to the Company or a Wholly Owned Subsidiary;
(vii) Purchase Money Liens -- Purchase Money
Liens, provided that, after giving effect thereto and to any
concurrent transactions, no Default or Event of Default would
exist under any provision hereof; and
(viii) Basket Liens -- Liens ("Basket Liens") not
otherwise permitted by clause (i) through clause (vii),
inclusive, of this Section 6.5(a) provided that the Company will
not at any time permit the sum, without duplication, of
(A) the aggregate amount of
Indebtedness ("Basket Secured Debt") secured by Basket Liens,
plus
(B) Combined Subsidiary Funded Debt
minus the aggregate amount of Closing Date Subsidiary Debt,
determined in each case at such time, to exceed twenty
percent (20%) of Consolidated Tangible Net Worth determined as of
the end of the then most recently ended fiscal quarter of the
Company.
Nothing in this Section 6.5 shall be construed to permit the
incurrence or existence of any Indebtedness not otherwise
permitted by this Agreement.
(b) Equal and Ratable Lien; Equitable Lien. In
case any Property shall be subjected to a Lien in violation of
this Section 6.5, the Company will forthwith make or cause to be
made, to the fullest extent permitted by applicable law,
provision whereby the Notes will be secured equally and ratably
with all other obligations secured thereby pursuant to such
agreements and instruments as shall be approved by the Required
Holders, and the Company will cause to be delivered to each
holder of a Note an opinion of independent counsel satisfactory
to the Required Holders to the effect that such agreements and
instruments are enforceable in accordance with their terms, and
in any such case the Notes shall have the benefit, to the full
extent that, and with such priority as, the holders of Notes may
be entitled under applicable law, of an equitable Lien on such
Property (and any proceeds thereof) securing the Notes. Such
violation of this Section 6.5 will constitute an Event of Default
hereunder, whether or not any such provision is made pursuant to
this Section 6.5(b).
(c) Financing Statements. The Company will not,
and will not permit any Subsidiary to, sign or file a financing
statement under the Uniform Commercial Code of any jurisdiction
that names the Company or such Subsidiary as debtor, or sign any
security agreement authorizing any secured party thereunder to
file any such financing statement, except, in any such case, a
financing statement filed or to be filed to perfect or protect a
security interest that the Company or such Subsidiary is entitled
to create, assume or incur, or permit to exist, under the
provisions of Section 6.5(a) or to evidence for informational
purposes a lessor's interest in Property leased to the Company or
any such Subsidiary.
6.6 Consolidated Tangible Net Worth.
The Company will not at any time permit Consolidated
Tangible Net Worth to be less than Two Hundred Thirty Million
Dollars ($230,000,000).
6.7 Funded Debt.
The Company will not at any time permit Consolidated Funded
Debt to be greater than ninety percent (90%) of Consolidated
Shareholders' Equity, determined in each case at such time.
6.8 Transfer of Property.
The Company will not, and will not permit any Subsidiary, to
sell, lease as lessor, transfer or otherwise dispose of property
(including, without limitation, Subsidiary Stock) (each such
transaction a "Transfer") provided that the foregoing restriction
does not apply to a Transfer of Property if:
(a) Ordinary Course Transfers -- such Property
constitutes inventory held for sale, or obsolete equipment,
fixtures and supplies, and in each case is Transferred in the
ordinary course of business (an "Ordinary Course Transfer");
(b) Basket Transfers -- such Property is
Transferred (the date of the Transfer of such Property referred
to as the "Property Disposition Date") to a Person other than an
Affiliate, such Transfer is not an Ordinary Course Transfer, an
Intergroup Transfer, a Merger Transfer, a Reinvested Transfer, a
Prepayment Transfer or a Noteholder Approved Transfer (such
transfers collectively referred to as "Excluded Transfers"), and
all of the following conditions shall have been satisfied with
respect thereto,
(i) the sum of
(A) the Disposition Value of such
Property, plus
(B) the Disposition Value of all other
Property Transferred by the Company and the Subsidiaries during
the three hundred sixty-five (365) day period ending on and
including such Property Disposition Date (excluding therefrom
Excluded Transfers occurring during such period),
does not exceed twenty percent (20%) of Consolidated
Total Assets determined as of the end of the then most recently
ended fiscal quarter of the Company,
(ii) the sum of
(A) the Disposition Value of such
Property, plus
(B) the Disposition Value of all
other Property Transferred by the Company and the Subsidiaries
during the period beginning on the Closing Date and ending on
such Property Disposition Date, inclusive, (excluding therefrom
Excluded Transfers occurring during such period),
does not exceed thirty percent (30%) of Consolidated
Total Assets determined as of the end of the then most recently
ended fiscal quarter of the Company,
(iii) in the good faith opinion of the board of
directors of the Company, the Transfer is for Fair Market Value
and is in the best interests of the Company, and
(iv) immediately before and immediately after
the consummation of the transaction, and after giving effect
thereto, no Default or Event of Default exists or would exist
under any provision hereof;
(c) Intergroup Transfers -- such transfer is from a
Subsidiary to the Company or a Wholly Owned Subsidiary (an
"Intergroup Transfer");
(d) Merger-Related Transfers -- such Transfer meets
the requirements of 6.4 hereof (a "Merger Transfer");
(e) Reinvested Transfers -- such Transfer shall
satisfy each of the following conditions (upon the satisfaction
of all of the conditions set forth in this Section 6.8(e) such
Transfer shall be a "Reinvested Transfer" and such Transfer shall
be deemed to have occurred on the date of the satisfaction of all
of such conditions),
(i) the Company will deliver a writing to each
holder of Notes contemporaneously with the consummation of the
Transfer in which the Company will
(A) identify such Property,
(B) state the nature and terms of the
transaction and the nature and use of the proceeds of the
transaction, and
(C) state that, within three hundred
and sixty-five (365) days following the consummation of such
Transfer, the entire proceeds of such Transfer, net of reasonable
and ordinary transaction costs and expenses incurred in
connection with such Transfer, shall be applied to the
acquisition by the Company or any Subsidiary of tangible property
(or a group of related items of Property the substantial portion
of which is tangible) properly classifiable under GAAP as long-
term to be used in the ordinary course of business of the Company
and the Subsidiaries, and
(ii) the proceeds of such Transfer shall have
been applied as described in such writing;
(f) Prepayment Transfer -- an amount equal to the
Net Transfer Proceeds of such Transfer shall have been offered,
pursuant to Section 4.4 hereof, to prepay the Notes, the Company
shall have complied with all of the requirements of Section 4.4
hereof with respect thereto, and the amount of the Notes required
to be prepaid pursuant to Section 4.4 hereof as a result of such
offer shall have been paid in accordance therewith (upon the
satisfaction of the all of the conditions set forth in this
Section 6.8(f) such Transfer shall be a "Prepayment Transfer" and
such Transfer shall be deemed to have occurred on the date of the
satisfaction of all of such conditions); or
(g) Noteholder Approved Transfers -- such Transfer
shall satisfy each of the following conditions (upon the
satisfaction of the all of the conditions set forth in this
Section 6.8(g) such Transfer shall be a "Noteholder Approved
Transfer" and such Transfer shall be deemed to have occurred on
the date of the satisfaction of all of such conditions),
(i) the Company will deliver a writing to each
holder of Notes not more than sixty (60) days or less than thirty
(30) days prior to the consummation of such Transfer in which the
Company will
(A) identify such Property, and
(B) state the nature and terms of the
transaction (including, without limitation, a description of the
consideration payable by the Purchaser) and the nature and use of
the proceeds of the transaction,
(ii) provide pro forma financial statements
covering at least the then succeeding two (2) fiscal years giving
effect to such transfer, the use of the proceeds thereof and any
contemporaneous transactions,
(iii) immediately before and immediately after
the consummation of the transaction, and after giving effect
thereto, no Default or Event of Default exists or would exist
under any provision hereof other than under Section 6.8(a)(ii)
hereof,
(iv) in the good faith opinion of the board of
directors of the Company, the Transfer is for Fair Market Value
and is in the best interests of the Company,
(v) the Transfer will not be likely, in the
reasonable judgment of the Required Holders, to have a Material
Adverse Effect at the time of the consummation thereof or at any
time thereafter, and
(vi) the Required Holders shall have consented
in writing to such Transfer (including, without limitation, the
consideration therefor), prior to the consummation thereof, which
consent shall not be unreasonably withheld.
6.9 Subsidiary Debt.
(a) Subsidiary Debt. The Company will not permit
any Subsidiary to create, assume, incur, or otherwise become
obligated with respect to any Funded Debt, except:
(i) Funded Debt outstanding on the Closing
Date and described on part 6.9 of Annex 3 hereto (the "Closing
Date Subsidiary Debt"); and
(ii) Funded Debt (including, without
limitation, extensions, renewals and refundings of Closing Date
Subsidiary Debt), if immediately after giving effect to such
transaction, the sum (without duplication) of
(A) the aggregate amount of Basket
Secured Debt, plus
(B) Combined Subsidiary Funded Debt
minus the aggregate amount of Closing Date Subsidiary Debt,
determined at such time does not exceed twenty percent
(20%) of Consolidated Tangible Net Worth determined as of the end
of the then most recently ended fiscal quarter of the Company.
(b) New Subsidiaries. Each Person which becomes a
Subsidiary after the Closing Date will be deemed to have incurred
all Indebtedness of such Person on the date such Person becomes a
Subsidiary.
(c) Disposition of Subsidiary Indebtedness. Each
Subsidiary any of whose outstanding Indebtedness is at any time
sold, transferred or otherwise disposed of by the Company or
another Subsidiary shall be deemed to have incurred such
Indebtedness, and all Liens securing such Indebtedness (if any),
at the time of such sale, transfer or other disposition.
6.10 ERISA.
(a) Compliance. The Company will, and will cause
each ERISA Affiliate to, at all times with respect to each
Pension Plan, make timely payment of contributions required to
meet the minimum funding standard set forth in ERISA or the IRC
with respect thereto, and to comply with all other applicable
provisions of ERISA. The Company will, and will cause each
Subsidiary to, at all times with respect to each Foreign Pension
Plan maintained by any of them, comply with all laws of any
Governmental Authority with jurisdiction over such Foreign
Pension Plans.
(b) Prohibited Actions. The Company will not, and
will not permit any ERISA Affiliate to:
(i) engage in any "prohibited transaction" (as
such terms defined in section 406 of ERISA or section 4975 of the
IRC) or "reportable event" (as such term is defined in section
4043 of ERISA) that could result in the imposition of a tax or
penalty;
(ii) incur with respect to any Pension Plan any
"accumulated funding deficiency" (as such term is defined in
section 302 of ERISA), whether or not waived;
(iii) terminate any Pension Plan in a manner
that could result in the imposition of a Lien on the Property of
the Company or any Subsidiary pursuant to section 4068 of ERISA
or the creation of any liability under section 4062 of ERISA;
(iv) fail to make any payment required by
section 515 or ERISA; or
(v) incur any withdrawal liability under Title
IV of ERISA with respect to any Multiemployer Plan or any
liability with as a result of the termination of any
Multiemployer Plan;
if the aggregate amount of the taxes, penalties, funding
deficiencies, interest, amounts secured by Liens, and other
liabilities in respect of any of the foregoing at any time
exceed, in the aggregate, more than three percent (3%) of
Consolidated Shareholders' Equity at such time.
6.11 Line of Business.
The Company will at all times cause,
(a) the amount of revenues of the Company and the
Subsidiaries derived from Permitted Lines of business to be at
least sixty-six and two-thirds percent (66 2/3%) of the amount of
all revenues of the Company and the Subsidiaries, determined in
each case for the then most recently ended period of twelve (12)
fiscal months on a consolidated basis, or
(b) the net book value of assets of the Company and
the Subsidiaries used in Permitted Lines of business to be at
least sixty-six and two-thirds percent (66 2/3%) of the amount of
the net book value of all assets of the Company and the
Subsidiaries, in each case determined as of the end of then most
recently ended calendar month on a consolidated basis.
6.12 Transactions with Affiliates.
The Company will not, and will not permit any Subsidiary to,
enter into any transaction, including, without limitation, the
purchase, sale or exchange of Property or the rendering of any
service, with any Affiliate, except in the ordinary course of and
pursuant to the reasonable requirements of the Company's or such
Subsidiary's business and upon fair and reasonable terms no less
favorable to the Company or such Subsidiary than would obtain in
a comparable arm's-length transaction with a Person not an
Affiliate.
6.13 Guaranties.
Neither the Company nor any Subsidiary will become liable
for, or permit any of its Property to become subject to, any
Guaranty, unless:
(a) the maximum dollar amount of the obligation
being guaranteed is readily ascertainable by the terms of such
obligation, or the agreement or instrument evidencing such
Guaranty specifically limits the dollar amount of the maximum
exposure of the guarantor thereunder; and
(b) after giving effect thereto and to any
concurrent transactions, no Default or Event of Default exists or
would exist under any provision hereof.
6.14 Private Offering.
The Company will not, and will not permit any Person acting
on its behalf to, offer the Notes or any part thereof or any
similar Securities for issue or sale to, or solicit any offer to
acquire any of the same from, any Person so as to bring the
issuance and sale of the Notes within the provisions of section 5
of the Securities Act.
7. INFORMATION AS TO COMPANY
7.1 Financial and Business Information.
The Company shall deliver to each holder of Notes:
(a) Quarterly Statements -- as soon as practicable after
the end of each quarterly fiscal period in each fiscal year of
the Company (other than the last quarterly fiscal period of each
such fiscal year), and in any event within sixty (60) days
thereafter, duplicate copies of,
(i) a consolidated balance sheet of the Company and
its consolidated subsidiaries, as at the end of such quarter, and
(ii) consolidated statements of income, changes in
shareholders' equity and cash flows of the Company and its
consolidated subsidiaries for such quarter and (in the case of
the second and third quarters) for the portion of the fiscal year
ending with such quarter,
setting forth in each case, in comparative form, the figures for
the corresponding periods in the previous fiscal year, all in
reasonable detail, prepared in accordance with GAAP applicable to
quarterly financial statements generally, and certified as
complete and correct, subject to changes resulting from year-end
adjustments, by a Senior Financial Officer, and accompanied by
the certificate required by Section 7.2 hereof; provided, that
delivery of copies of the Company's Quarterly Report on Form 10-Q
filed with the Securities and Exchange Commission within the time
period specified above shall be deemed to satisfy the
requirements of this Section 7.1(a) so long as such Quarterly
Report contains or is accompanied by the information specified in
this Section 7.1(a);
(b) Annual Statements -- as soon as practicable after
the end of each fiscal year of the Company, and in any event
within one hundred (100) days thereafter, duplicate copies of,
(i) a consolidated and consolidating balance sheet
of the Company and its consolidated subsidiaries as at the end of
such year, and
(ii) consolidated and consolidating statements of
income, changes in shareholders' equity and cash flows of the
Company and the Subsidiaries, for such year,
setting forth in the case of each consolidated financial
statement, in comparative form, the figures for the previous
fiscal year, all in reasonable detail, prepared in accordance
with GAAP, and accompanied by
(A) (I) in the case of the consolidated
financial statements of the Company and its consolidated
subsidiaries, an opinion thereon of independent certified public
accountants of recognized national standing, which opinion shall,
without qualification (including, without limitation,
qualifications related to the scope of the audit or the ability
of the Company or a subsidiary thereof to continue as a going
concern), state that such financial statements present fairly, in
all material respects, the financial position of the companies
being reported upon and their results of operations and cash
flows and have been prepared in conformity with GAAP, and that
the examination of such accountants in connection with such
financial statements has been made in accordance with generally
accepted auditing standards, and that such audit provides a
reasonable basis for such opinion in the circumstances, and
(II) in the case of such consolidating
statements, a statement from such independent certified public
accountants that such statements were prepared using the same
work papers as were used in the preparation of such consolidated
statements of the Company and its consolidated subsidiaries,
(B) a certification by a Senior Financial Officer
that such consolidated and consolidating statements are complete
and correct, and
(C) the certificates required by Section 7.2
hereof,
provided, that the delivery of the Company's Annual Report on
Form 10-K for such fiscal year (together with the Company's
annual report to shareholders, if any, prepared pursuant to Rule
14a-3 under the Exchange Act) filed with the Securities and
Exchange Commission within the time period specified above shall
be deemed to satisfy the requirements of this Section 7.1(b) so
long as such Annual Report contains or is accompanied by the
opinions and other information otherwise specified in this
Section 7.1(b);
(c) SEC and Other Reports -- promptly upon their
becoming available one copy of each financial statement, report,
notice or proxy statement sent by the Company or any Subsidiary
to stockholders generally, and of each regular or periodic report
and any registration statement, prospectus or written
communication, and each amendment thereto, in respect thereof
filed by the Company or any Subsidiary with, or received by, such
Person in connection therewith from, the National Association of
Securities Dealers, any securities exchange or the Securities and
Exchange Commission or any successor agency;
(d) Notice of Default or Event of Default --
immediately, and in any event within three (3) days, upon
becoming aware of the existence of any condition or event which
constitutes a Default or an Event of Default, a written notice
specifying the nature and period of existence thereof and what
action the Company is taking or proposes to take with respect
thereto;
(e) Notice of Claimed Default -- immediately, and in any
event within three (3) days, upon becoming aware that the holder
of any Note, or of any Indebtedness or other Security of the
Company or any subsidiary, shall have given notice or taken any
other action with respect to a claimed Default, Event of Default
or default or event of default, a written notice specifying the
notice given or action taken by such holder and the nature of the
claimed Default, Event of Default or default or event of default
and what action the Company is taking or proposes to take with
respect thereto;
(f) ERISA --
(i) immediately upon becoming aware of the
occurrence of any "reportable event" (as such term is defined in
section 4043 of ERISA) or "prohibited transaction" (as such term
is defined in section 406 of ERISA or section 4975 of the IRC) in
connection with any Pension Plan or any trust created thereunder,
a written notice specifying the nature thereof, what action the
Company is taking or proposes to take with respect thereto, and,
when known, any action taken by the Internal Revenue Service, the
Department of Labor or the PBGC with respect thereto; and
(ii) prompt written notice of and, where
applicable, a description of
(A) any notice from the PBGC in respect
of the commencement of any proceedings pursuant to section 4042
of ERISA to terminate any Pension Plan or for the appointment of
a trustee to administer any Pension Plan,
(B) any distress termination notice
delivered to the PBGC under section 4041 of ERISA in respect of
any Pension Plan, and any determination of the PBGC in respect
thereof,
(C) the placement of any Multiemployer
Plan in reorganization status under Title IV of ERISA,
(D) any Multiemployer Plan becoming
"insolvent" (as such term is defined in section 4245 of ERISA)
under Title IV of ERISA, and
(E) the whole or partial withdrawal of
the Company or any ERISA Affiliate from any Multiemployer Plan
and the withdrawal liability incurred in connection therewith,
provided that the Company shall not be required to deliver any
such notice at any time when the aggregate amount of the actual
or potential liability of the Company and the Subsidiaries in
respect of all such events is at such time less than two percent
(2%) of Consolidated Shareholders' Equity determined at such
time; and
(g) Requested Information -- with reasonable
promptness, such other data and information as from time to time
may be requested by any holder of Notes, including, without
limitation,
(i) a copy of each report submitted to the
Company or any Subsidiary by independent accountants in
connection with any annual, interim or special audit made by them
of the books of the Company or any Subsidiary;
(ii) copies of any statement, report or
certificate furnished to any holder of Indebtedness of the
Company or any Subsidiary; and
(iii) information requested to comply with 17
C.F.R. Section 230.144A, as amended, from time to time.
7.2 Officers' Certificates.
Each set of financial statements delivered to each holder of
Notes pursuant to Section 7.1(a) or Section 7.1(b) hereof shall
be accompanied by a certificate of a Senior Financial Officer,
setting forth:
(a) Covenant Compliance -- the information
(including detailed calculations) required in order to establish
whether the Company was in compliance with the requirements of
Section 6.5 through Section 6.9 hereof, inclusive, during the
period covered by the financial statement then being furnished
(including with respect to each such Section, where applicable,
the calculations of the maximum or minimum amount, ratio or
percentage, as the case may be, permissible under the terms of
such Sections, and the calculation of the amount, ratio or
percentage then in existence); and
(b) Event of Default -- a statement that the
signers have reviewed the relevant terms hereof and have made, or
caused to be made, under their supervision, a review of the
transactions and conditions of the Company and the Subsidiaries
from the beginning of the accounting period covered by the income
statements being delivered therewith to the date of the
certificate and that such review shall not have disclosed the
existence during such period of any condition or event that
constitutes a Default or an Event of Default or, if any such
condition or event existed or exists, specifying the nature and
period of existence thereof and what action the Company shall
have taken or proposes to take with respect thereto.
7.3 Accountants' Certificates.
Each set of annual financial statements delivered pursuant
to Section 7.1(b) shall be accompanied by a certificate of the
accountants who certify such financial statements, stating that
they have reviewed this Agreement and stating further, whether,
in making their audit, such accountants have become aware of any
condition or event that then constitutes a Default or an Event of
Default, and if such accountants are aware that any such
condition or event then exists, specifying the nature and period
of existence thereof.
7.4 Inspection.
The Company will permit the representatives of each holder
of Notes to visit and inspect any of the Properties of the
Company or any subsidiary, to examine all their respective books
of account, records, reports and other papers, to make copies and
extracts therefrom, and to discuss their respective affairs,
finances and accounts with their respective officers, employees
and independent public accountants (and by this provision the
Company authorizes said accountants to discuss the finances and
affairs of the Company and the subsidiaries) all at such
reasonable times and as often as may be reasonably requested.
8. EVENTS OF DEFAULT
8.1 Nature of Events.
An "Event of Default" shall exist if any of the following
occurs and is continuing:
(a) Principal or Make-Whole Amount Payments -- the
Company shall fail to make any payment of principal or Make-Whole
Amount on any Note on or before the date such payment is due;
(b) Interest Payments -- the Company shall fail to
make any payment of interest on any Note on or before five (5)
days after the date such payment is due;
(c) Particular Covenant Defaults -- the Company
shall fail to perform or observe any covenant contained in
Section 6.6 through Section 6.9, inclusive, Section 6.13, Section
7.1(d) or Section 7.1(e) hereof;
(d) Liens -- the Company shall fail to perform or
observe any covenant contained in Section 6.5 hereof and such
failure continues for more than five days after such failure
shall first become known to any Senior Officer of the Company;
(e) Other Defaults -- the Company shall fail to
comply with any other provision hereof, and such failure
continues for more than thirty (30) days after such failure shall
first become known to any Senior Officer of the Company;
(f) Warranties or Representations -- any warranty,
representation or other statement by or on behalf of the Company
contained herein or in any instrument furnished in compliance
with or in reference hereto shall have been false or misleading
in any material respect when made;
(g) Default on Indebtedness or Other Security --
(i) the Company or any Subsidiary shall fail
to make any payment on any Indebtedness when due (including in
the determination of when a payment is due any applicable grace
periods); or
(ii) Any one or more of the holders (or a
trustee therefor) of any Indebtedness or Security of the Company
or any Subsidiary, or a portion thereof,
(A) causes such Indebtedness or
Security to become due prior to its stated maturity or prior to
its regularly scheduled date or dates of payment; or
(B) exercises any right to require
the Company or any Subsidiary to repurchase such Indebtedness or
Security from such holder;
provided that no Event of Default shall exist at any time when
the aggregate amount of all obligations in respect of such
Indebtedness and Securities is less than Five Million Dollars
($5,000,000);
(h) Involuntary Bankruptcy Proceedings --
(i) a receiver, liquidator, custodian or
trustee of the Company or any Material Subsidiary, or of all or
any substantial part of the Property of either, shall be
appointed by court order and such order remains in effect for
more than thirty (30) days; or an order for relief shall be
entered with respect to the Company or any Material Subsidiary,
or the Company or any Material Subsidiary shall be adjudicated a
bankrupt or insolvent; or
(ii) any of the Property of the Company or
any Material Subsidiary shall be sequestered by court order and
such order remains in effect for more than thirty (30) days; or
(iii) a petition shall be filed against the
Company or any Material Subsidiary under any bankruptcy,
reorganization, arrangement, insolvency, readjustment of debt,
dissolution or liquidation law of any jurisdiction, whether now
or hereafter in effect, and shall not be dismissed within thirty
(30) days after such filing;
(i) Voluntary Petitions -- the Company or any
Material Subsidiary shall file a petition in voluntary bankruptcy
or seeking relief under any provision of any bankruptcy,
reorganization, arrangement, insolvency, readjustment of debt,
dissolution or liquidation law of any jurisdiction, whether now
or hereafter in effect, or shall consent to the filing of any
petition against it under any such law;
(j) Assignment for Benefit of Creditors, etc. --
the Company or a Material Subsidiary shall make an assignment for
the benefit of its creditors, or admits in writing its inability,
or fails, to pay its debts generally as they become due, or shall
consent to the appointment of a receiver, liquidator or trustee
of the Company or a Material Subsidiary or of all or any part of
the Property of either; or
(k) Undischarged Final Judgments -- a final, non-
appealable, judgment or final, non-appealable, judgments for the
payment of money aggregating in excess of Fifty Thousand Dollars
($50,000) is or are outstanding against one or more of the
Company and the Subsidiaries and any one of such judgments shall
have been outstanding for more than thirty (30) days from the
date of its entry and shall not have been discharged in full or
stayed.
8.2 Default Remedies.
(a) Acceleration on Event of Default.
(i) If any Event of Default specified in
Section 8.1(g), Section 8.1(h) or Section 8.1(i) hereof shall
exist, all of the Notes at the time outstanding shall
automatically become immediately due and payable together with
interest accrued thereon and, to the extent permitted by law, the
Make-Whole Amount at such time with respect to the principal
amount of such Notes, without presentment, demand, protest or
notice of any kind, all of which are hereby expressly waived,
and,
(ii) If any Event of Default other than
those in Section 8.1(g), Section 8.1(h) or Section 8.1(i) hereof
shall exist, the Required Holders may exercise any right, power
or remedy permitted to the holders by law, and shall have, in
particular, without limiting the generality of the foregoing, the
right to declare the entire principal of, and all interest
accrued on, all the Notes then outstanding to be, and such Notes
shall thereupon become, forthwith due and payable, without any
presentment, demand, protest or other notice of any kind, all of
which are hereby expressly waived, and the Company shall
forthwith pay to the holder or holders of all the Notes then
outstanding the entire principal of, and interest accrued on, the
Notes and, to the extent permitted by law, the Make-Whole Amount
at such time with respect to such principal amount of such Notes.
(b) Acceleration on Payment Default. During the
existence of an Event of Default described in Section 8.1(a) or
Section 8.1(b) hereof, and irrespective of whether the Notes then
outstanding shall have been declared to be due and payable
pursuant to Section 8.2(a)(ii) hereof, any holder of Notes who or
which shall have not consented to any waiver with respect to such
Event of Default may, at his or its option, by notice in writing
to the Company, declare the Notes then held by such holder to be,
and such Notes shall thereupon become, forthwith due and payable
together with all interest accrued thereon, without any
presentment, demand, protest or other notice of any kind, all of
which are hereby expressly waived, and the Company shall
forthwith pay to such holder the entire principal of and interest
accrued on such Notes and, to the extent permitted by law, the
Make-Whole Amount at such time with respect to such principal
amount of such Notes.
(c) Valuable Rights. The Company acknowledges, and
the parties hereto agree, that the right of each holder to
maintain its investment in the Notes free from repayment by the
Company (except as herein specifically provided for) is a
valuable right and that the provision for payment of a Make-Whole
Amount by the Company in the event that the Notes are prepaid or
are accelerated as a result of an Event of Default, is intended
to provide compensation for the deprivation of such right under
such circumstances.
(d) Other Remedies. During the existence of an
Event of Default and irrespective of whether the Notes then
outstanding shall have been declared to be due and payable
pursuant to Section 8.2(a)(ii) hereof and irrespective of whether
any holder of Notes then outstanding shall otherwise have pursued
or be pursuing any other rights or remedies, any holder of Notes
may proceed to protect and enforce its rights hereunder and under
such Notes by exercising such remedies as are available to such
holder in respect thereof under applicable law, either by suit in
equity or by action at law, or both, whether for specific
performance of any agreement contained herein or in aid of the
exercise of any power granted herein, provided that the maturity
of such holder's Notes may be accelerated only in accordance with
Section 8.2(a) and Section 8.2(b) hereof.
(e) Nonwaiver and Expenses. No course of dealing
on the part of any holder of Notes nor any delay or failure on
the part of any holder of Notes to exercise any right shall
operate as a waiver of such right or otherwise prejudice such
holder's rights, powers and remedies. If the Company shall fail
to pay when due any principal of, or Make-Whole Amount or
interest on, any Note, or shall fail to comply with any other
provision hereof, the Company shall pay to each holder of Notes,
to the extent permitted by law, such further amounts as shall be
sufficient to cover the costs and expenses, including but not
limited to reasonable attorneys' fees, incurred by such holder in
collecting any sums due on such Notes or in otherwise assessing,
analyzing or enforcing any rights or remedies that are or may be
available to it.
8.3 Annulment of Acceleration of Notes.
If a declaration is made pursuant to Section 8.2(a)(ii)
hereof, then and in every such case, the Required Holders may, by
written instrument filed with the Company within ninety (90) days
after such declaration, rescind and annul such declaration, and
the consequences thereof, provided that at the time such
declaration is annulled and rescinded:
(a) no judgment or decree shall have been entered
for the payment of any moneys due on or pursuant hereto or the
Notes;
(b) all arrears of interest upon all the Notes and
all other sums payable hereunder and under the Notes (except any
principal of, or interest or Make-Whole Amount on, the Notes
which shall have become due and payable by reason of such
declaration under Section 8.2(a)(ii) hereof) shall have been duly
paid; and
(c) each and every other Default and Event of
Default shall have been waived pursuant to Section 10.6 hereof or
otherwise made good or cured;
and provided further that no such rescission and annulment shall
extend to or affect any subsequent Default or impair any right
consequent thereon.
9. Interpretation of this Agreement
9.1 Terms Defined.
As used herein, the following terms have the respective
meanings set forth below or set forth in the Section hereof
following such term:
Affiliate -- means, at any time, a Person (other than a
Subsidiary)
(a) that directly or indirectly through one or more
intermediaries Controls, or is Controlled by, or is under common
Control with, the Company.
(b) that beneficially owns or holds five percent
(5%) or more of any class of the Voting Stock of the Company,
(c) five percent (5%) or more of the Voting Stock
(or in the case of a Person that is not a corporation, five
percent (5%) or more of the equity interest) of which is
beneficially owned or held by the Company or a Subsidiary, or
(d) that is an officer or director (or a member of
the immediate family of an officer or director) of the Company or
any Subsidiary,
at such time. As used in this definition,
Control -- means the possession, directly or
indirectly, of the power to direct or cause the direction of the
management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise.
Agreement, this -- means this Note Purchase Agreement, as it
may be amended and restated from time to time.
Basket Liens -- Section 6.5(a)(viii).
Basket Secured Debt -- Section 6.5(a)(viii)(A).
Business Day -- means a day other than a Saturday, a Sunday
or, a day on which the bank designated by the holder of a Note to
receive for such holder's account payments on such Note is
required by law (other than a general banking moratorium or
holiday for a period exceeding four (4) consecutive days) to be
closed.
Capital Lease -- means, at any time, a lease with respect to
which the lessee is required to recognize the acquisition of an
asset and the incurrence of a liability at such time.
Closing -- Section 1.2(b).
Closing Date -- Section 1.2(b).
Closing Date Subsidiary Debt -- Section 6.9(a)(i).
Combined Subsidiary Funded Debt -- means, at any time, the
aggregate amount of Subsidiary Funded Debt of all Subsidiaries
determined on a combined basis at such time.
Company -- has the meaning specified in the introductory
sentence hereof.
Consolidated Funded Debt -- means, at any time, the amount
of Funded Debt of the Company, and the amount of Subsidiary
Funded Debt of all Subsidiaries, determined on a consolidated
basis at such time.
Consolidated Shareholders' Equity -- means, at any time,
(a) the amount of shareholders' equity of the
Company and the Subsidiaries (but excluding, without limitation,
all Preferred Stock other than perpetual Preferred Stock and, to
the extent included therein, minority interest), minus
(b) (i) the Restricted Basket Transfer Proceeds
Amount, plus
(ii) the Restricted Subsidiary Net Worth
Amount,
all determined on a consolidated basis at such time.
Consolidated Tangible Net Worth -- means, at any time, the
amount equal to
(a) the sum of
(i) the par value or stated value (as the
case may be) at such time of all authorized, issued and
outstanding capital stock of the Company and the Subsidiaries
(excluding capital stock held in treasury), plus (or minus in
each case of a deficit),
(ii) the amount of the paid-in capital and
retained earnings at such time of the Company and the
Subsidiaries, plus
(iii) the amount of Unamortized Tax Incentive
Grants and Tax Incentive Financings, plus
(v) the amount of the IRC 447(i) Suspense
Account Amount,
minus
(b) (i) the net book value (after deducting
related depreciation, obsolescence, amortization, valuation and
other proper reserves) of all Intangible Assets of the Company
and the Subsidiaries, plus
(ii) the Restricted Basket Transfer Proceeds
Amount, plus
(iii) the Restricted Subsidiary Net Worth
Amount,
all determined on a consolidated basis at such time. As used in
this definition,
Intangible Assets - with respect to any Person, means
the following:
(a) deferred assets (including, without
limitation, insurance and prepaid taxes), other than prepaid
expenses which are refundable;
(b) patents, copyrights, trademarks, trade
names, service marks, brand names, franchises, goodwill,
experimental expenses and other similar intangibles;
(c) unamortized debt discount and expense; and
(d) all other Property which would be
considered to be intangible under generally accepted accounting
principles.
IRC 447(i) Suspense Account Amount -- means, at any
time, the amount included in deferred tax liabilities on a
consolidated balance sheet of the Company and the Subsidiaries
prepared in accordance with GAAP at such time in respect of
deferred tax liabilities incurred in connection with section
447(i) of the IRC.
Unamortized Tax Incentive Grants and Tax Incentive
Financings -- means, at any time, the amount included in
liabilities on a consolidated balance sheet of the Company and
the Subsidiaries prepared in accordance with GAAP at such time in
respect of all monies granted by political subdivisions as
contractual concessions for economic development by the Company
or its Subsidiaries in such political subdivisions.
Consolidated Total Assets -- means, at any time, an amount
equal to the net book value (net of related depreciation,
obsolescence, amortization, valuation, and other proper reserves)
of all assets of the Company and the Subsidiaries minus the
amount of minority interest of the Company and the Subsidiaries,
determined on a consolidated basis at such time.
Default -- means an event or condition the occurrence of
which would, with the lapse of time or the giving of notice or
both, become an Event of Default.
Disposition Value -- means, at any time, with respect to any
Property
(a) in the case of Property that does not
constitute Subsidiary Stock, the net book value thereof at such
time, and
(b) in the case of Property that constitutes
Subsidiary Stock, an amount equal to that percentage of the net
book value of the assets of the Subsidiary that issued such stock
as is equal to the percentage of all of the outstanding Voting
Stock of such Subsidiary represented by such Subsidiary Stock
(assuming, in the case of Subsidiary Stock that is convertible
into such Voting Stock, conversion of such Subsidiary Stock),
determined at such time.
Distribution -- means, in respect of any corporation
(a) dividends or other distributions on capital
stock of the corporation (except distributions in such stock),
and
(b) the redemption or acquisition of such stock or
of warrants, rights or other options to purchase such stock
(except when solely in exchange for such stock) unless made,
contemporaneously, from the net proceeds of a sale of such stock.
Environmental Protection Laws -- means any law, statute or
regulation enacted by any jurisdiction in connection with or
relating to the protection or regulation of the environment,
including, without limitation, those laws, statutes and
regulations regulating the disposal, removal, production,
storing, refining, handling, transferring, processing or
transporting of hazardous or toxic substances, and any orders,
decrees or judgments issued by any court of competent
jurisdiction in connection with any of the foregoing.
ERISA -- means the Employee Retirement Income Security Act
of 1974, as amended from time to time.
ERISA Affiliate -- means any corporation or trade or
business that is a member of the same controlled group of
corporations as the Company, or is under common control with the
Company, in each case within the meaning of section 414(b) or
section 414(c) of the IRC.
Event of Default -- Section 8.1
Exchange Act -- means the Securities and Exchange Act of
1934, as amended from time to time.
Excluded Transfers - Section 6.8(b).
Fair Market Value -- means, with respect to any Property,
the sale value of such Property that would be realized in an
arm's-length sale at such time between an informed and willing
buyer, and an informed and willing seller, under no compulsion to
buy or sell, respectively.
Foreign Pension Plan -- means any plan, fund or other
similar program
(a) established or maintained outside of the United
States of America by any one or more of the Company or the
Subsidiaries primarily for the benefit of the employees
(substantially all of whom are aliens not residing in the United
States of America) of the Company or such Subsidiaries, which
plan, fund or other similar program provides for retirement
income for such employees or results in a deferral of income for
such employees in contemplation of retirement, and
(b) not otherwise subject to ERISA.
Funded Debt -- means, at any time, with respect to any
Person, Indebtedness of such Person having a final maturity of
more than one (1) year from such time or that is renewable or
extendible at the option of such Person for a period more than
one (1) year from the date of determination.
GAAP -- means accounting principles as promulgated from time
to time in statements, opinions and pronouncements by the
American Institute of Certified Public Accountants and the
Financial Accounting Standards Board and in such statements,
opinions and pronouncements of such other entities with respect
to financial accounting of for-profit entities as shall be
accepted by a substantial segment of the accounting profession in
the United States.
Governmental Authority -- means
(a) the government of
(i) the United States of America and any
State or other political subdivision thereof, or
(ii) any other jurisdiction in which the
Company or any Subsidiary conducts all or any part of its
business, or that asserts any jurisdiction over the conduct of
the affairs of, or the Property of the Company or any Subsidiary,
and
(b) any entity exercising executive, legislative,
judicial, regulatory or administrative functions of, or
pertaining to, any such government.
Guaranty -- means with respect to any Person (for the
purposes of this definition, the "Guarantor") any obligation
(except the endorsement in the ordinary course of business of
negotiable instruments for deposit or collection) of such Person
guaranteeing or in effect guaranteeing any indebtedness, dividend
or other obligation of any other Person (the "Primary Obligor")
in any manner, whether directly or indirectly, including, without
limitation, obligations incurred through an agreement, contingent
or otherwise, by the Guarantor:
(a) to purchase such indebtedness or obligation or
any Property constituting security therefor;
(b) to advance or supply funds
(i) for the purchase or payment of such
indebtedness or obligation, or
(ii) to maintain working capital or other
balance sheet condition or any income statement condition of the
Primary Obligor or otherwise to advance or make available funds
for the purchase or payment of such indebtedness or obligation;
(c) to lease Property or to purchase Securities or
other Property or services primarily for the purpose of assuring
the owner of such indebtedness or obligation of the ability of
the Primary Obligor to make payment of the indebtedness or
obligation; or
(d) otherwise to assure the owner of the
indebtedness or obligation of the Primary Obligor against loss in
respect thereof.
For purposes of computing the amount of any Guaranty, in
connection with any computation of indebtedness or other
liability, it shall be assumed that the indebtedness or other
liabilities that are the subject of such Guaranty are direct
obligations of the issuer of such Guaranty, and the amount of the
Guaranty is the amount of the direct obligation then outstanding.
Indebtedness -- with respect to any Person means, without
duplication,
(a) its liabilities for borrowed money (whether or
not evidenced by a Security) and its obligations in respect of
mandatorily redeemable preferred stock;
(b) any liabilities for borrowed money secured by
any Lien existing on Property owned by such Person (whether or
not such liabilities have been assumed);
(c) any obligations in respect of any Capital Lease
of such person;
(d) the present value of all payments due under any
arrangement for retention of title or any conditional sale
agreement (other than a Capital Lease) discounted at the implicit
rate, if known, with respect thereto or, if unknown, at 8% per
annum;
(e) obligations of such Person in respect of
letters of credit or instruments serving a similar function
issued or accepted by banks and other financial institutions for
the account of such Person (whether or not representing
obligations for borrowed money);
(f) the aggregate net obligation under Swaps of
such Person; and
(g) any Guaranty of such Person of any obligation
or liability of another Person.
As used in this definition,
Swaps -- means, with respect to any Person, obligations
with respect to interest rate swaps and currency swaps and
similar obligations obligating such Person to make payments,
whether periodically or upon the happening of a contingency,
except that if any agreement relating to such obligation provides
for the netting of amounts payable by and to such Person
thereunder or if any such agreement provides for the simultaneous
payment of amounts by and to such Person, then in each such case,
the amount of such obligations shall be the net amount thereof.
The aggregate net obligation of Swaps at any time shall be the
aggregate amount of the obligations of such Person under all
Swaps assuming all such Swaps had been terminated by such Person
as of the end of the then most recently ended fiscal quarter of
such Person. If such net aggregate obligation shall be an amount
owing to such Person, then the amount shall be deemed to be Zero
Dollars ($0).
Intergroup Transfer -- Section 6.8(c).
Investment -- means investments, made in cash or by delivery
of Property, by the Company or a Subsidiary in any Person,
whether by acquisition of stock, indebtedness or other obligation
or Security, or by loan, Guaranty, advance or capital
contribution, or otherwise, or in any Property.
IRC -- means the Internal Revenue Code of 1986, together
with all rules and regulations promulgated pursuant thereto, as
amended from time to time.
Lien -- means any interest in Property securing an
obligation owed to, or a claim by, a Person other than the owner
of the Property, whether such interest is based on the common
law, statute or contract, and including but not limited to the
security interest lien arising from a mortgage, encumbrance,
pledge, conditional sale or trust receipt or a lease, consignment
or bailment for security purposes, and the filing of any
financing statement under the Uniform Commercial Code of any
jurisdiction, or an agreement to give any of the foregoing. The
term "Lien" includes reservations, exceptions, encroachments,
easements, rights-of-way, covenants, conditions, restrictions,
leases and other title exceptions and encumbrances affecting real
property and includes, with respect to stock, stockholder
agreements, voting trust agreements, buy-back agreements and all
similar arrangements. For the purposes hereof, the Company and
each Subsidiary shall be deemed to be the owner of any Property
that it holds or shall have acquired subject to a conditional
sale agreement, Capital Lease or other arrangement pursuant to
which title to the Property has been retained by or vested in
some other Person for security purposes, and such retention or
vesting shall be deemed a Lien.
Make-Whole Amount -- means, with respect to any principal
amount of Indebtedness (the "Prepaid Principal") paid for any
reason on a date (the "Prepayment Date"), the excess (if any) of
the amount Present Value of the Prepaid Cash Flows determined
with respect thereto minus the amount of such Prepaid Principal.
As used in this definition,
Present Value of the Prepaid Cash Flows -- means, with
respect to any Prepaid Principal and any Prepayment Date thereof,
the sum of the present values of the then remaining scheduled
payments of principal and interest that would have been payable
in respect of such Prepaid Principal but for such prepayment or
acceleration and will no longer be payable as a result thereof.
In determining such present values,
(i) the amount of interest accrued on such
Prepaid Principal since the scheduled interest payment date
immediately preceding such Prepayment Date shall be deducted from
the first of such payments of interest, and
(ii) a discount rate equal to the Make-Whole
Discount Rate determined with respect to such Prepayment Date and
Prepaid Principal divided by two (2), and a discount period of
six (6) months of thirty (30) days each, shall be used.
Applicable H.15 -- means, at any time, United States
Federal Reserve Statistical Release H.15(519) then most recently
published and available to the public, or if such publication is
not available, then any other source of current information in
respect of interest rates on securities of the United States of
America that is generally available and, in the judgment of the
Required Holders, provides information reasonably comparable to
the H.15(519) report.
Applicable H.15 Rate -- means, with respect to any
Prepaid Principal and Prepayment Date thereof, the then most
current annual yield to maturity of the hypothetical United
States Treasury obligation listed in the Applicable H.15 with a
Treasury Constant Maturity (as such term is defined in such
Applicable H.15) equal to the Weighted Average Life to Maturity
of such Prepaid Principal. If no such United States Treasury
obligation with a Treasury Constant Maturity corresponding
exactly to such Weighted Average Life to Maturity is listed, then
the yields for the two (2) then most current hypothetical United
States Treasury obligations with Treasury Constant Maturities
most closely corresponding to such Weighted Average Life to
Maturity (one (1) with a longer maturity and one (1) with a
shorter maturity, if available) shall be calculated pursuant to
the immediately preceding sentence and the Make-Whole Discount
Rate shall be interpolated or extrapolated from such yields on a
straight-line basis.
Bloomberg Rate -- means, with respect to any Prepaid
Principal and any Prepayment Date in respect thereof, the per
annum yield reported on the Bloomberg Financial Markets System at
10:00 a.m. (New York time) on any on the second (2nd) Business
Day preceding such Prepayment Date for United States government
Securities having a maturity (rounded to the nearest month)
corresponding to the Weighted Average Life to Maturity of such
Prepaid Principal. Page USD shall be used as the source of such
yields, or if not then available, such other screen available on
the Bloomberg Financial Markets System as shall, in the opinion
of the Required Holders, provide equivalent information.
Make-Whole Discount Rate -- means, with respect to any
Prepaid Principal and Prepayment Date, fifty one-hundredths
percent (0.50%) per annum plus the per annum percentage rate
(rounded to the nearest three decimal (3) places) equal to the
bond equivalent yield to maturity derived from the Bloomberg
Rate, or if the Bloomberg Rate is not then available, the
Applicable H.15 Rate, determined in respect thereof.
Remaining Dollar-Years -- means, with respect to any
Prepaid Principal and Prepayment Date thereof, the result
obtained by
(a) multiplying, in the case of each required
payment of principal (including payment at maturity) that would
have been payable in respect of such Prepaid Principal but for
such prepayment and is no longer payable as a result thereof,
(i) an amount equal to such required
payment of principal, by
(ii) the number of years (calculated to
the nearest one-twelfth) that will elapse between such Prepayment
Date and the date such required principal payment would be due if
such Prepaid Principal had not been so prepaid, and
(b) calculating the sum of each of the
products obtained in the preceding subsection (a).
Weighted Average Life to Maturity -- means, with
respect to any Prepaid Principal and Prepayment Date thereof, the
number of years obtained by dividing the Remaining Dollar-Years
of such Prepaid Principal determined on such Prepayment Date by
such Prepaid Principal.
Material Adverse Effect -- means a material adverse effect
on the business, prospects, profits, Properties or condition
(financial or otherwise) of the Company and the subsidiaries, in
the aggregate, or the ability of the Company to perform its
obligations set forth herein and in the Notes.
Material Subsidiary -- means, at any time, a Subsidiary
that,
(a) at any time during the then current fiscal year
or the two (2) then preceding fiscal years of the Company,
constituted more than three percent (3%) of Consolidated Total
Assets or Consolidated Shareholders' Equity, or
(b) accounted for more than three percent (3%) of
the revenues or net income of the Company and its consolidated
subsidiaries, determined on a consolidated basis, in respect of
any one or more of the then preceding twelve (12) fiscal quarters
of the Company.
Merger Transfer -- Section 6.8(d).
Multiemployer Plan -- means any "multiemployer plan" (as
defined in section 3(37) of ERISA) in respect of which the
Company or any ERISA Affiliate is an "employer" (as such term is
defined in section 3 of ERISA).
Net Transfer Proceeds -- means the Fair Market Value of the
proceeds (of whatever type) paid or payable to the Company and
the Subsidiaries in respect of the Transfer of any of their
respective Properties, determined as of the date of the
substantial completion of such transfer, net of ordinary and
customary expenses incurred by the Company and the Subsidiaries
in connection with such Transfer and paid to Persons other than
the Company, a Subsidiary or an Affiliate.
Note Purchase Agreements -- Section 1.2(c).
Noteholder Approved Transfer -- Section 6.8(g).
Notes -- Section 1.1.
Offered Prepayment Amount -- Section 4.4(a)(i).
Ordinary Course Transfer -- Section 6.8(a).
Other Purchasers -- Section 1.2(c).
PBGC -- means the Pension Benefit Guaranty Corporation, and
any Person succeeding to the functions of the PBGC.
Permitted Lines of Business -- means,
(a) Meat (including chicken, turkey, beef, lamb and
pork), poultry and seafood production and processing,
(b) Fruit and vegetable production and processing,
(c) Ocean transportation and related ground
transportation and support,
(d) Animal feed production and processing,
(e) Bag production,
(f) Flour and feed milling,
(g) Commercial and residential construction,
(h) Power production,
(i) Textile production,
(j) Short-line railroad transportation,
(k) Commodity merchandising,
(l) Baking, and
(m) Cash and investments held for future use by the
Company and the Subsidiaries in connection with any of the
aforementioned Permitted Lines of Business.
Pension Plan -- means, at any time, any "employee pension
benefit plan" (as such term is defined in section 3 of ERISA)
maintained at such time by the Company or any ERISA Affiliate for
employees of the Company or such ERISA Affiliate, excluding any
Multiemployer Plan.
Person -- means an individual, partnership, corporation,
trust, unincorporated organization, or a government or agency
or political subdivision thereof.
Placement Memorandum -- Section 2.1.
Preferred Stock -- means, with respect to any corporation,
capital shares or capital stock of such corporation that are
entitled to preference or priority over any other capital shares
or capital stock of such corporation in respect of either or both
of the payment of dividends or the distribution of assets upon
liquidation.
Prepayment Transfer -- Section 6.8(f).
Property -- means any interest in any kind of property or
asset, whether real, personal or mixed, and whether tangible or
intangible.
Property Disposition Date -- Section 6.8(b).
Purchase Money Lien -- means,
(a) a Lien on tangible Property (or a group of
related items of Property the substantial portion of which
are tangible) properly classifiable in accordance with GAAP as
long-term acquired or constructed by the Company or any
Subsidiary, which Lien secures indebtedness used by the owner
of such Property to pay for all or a portion of the related
purchase price or construction costs of such Property, provided
that
(i) such Lien shall not extend to or cover any
Property other than Property acquired or constructed after
the Closing Date with the proceeds of the indebtedness secured
thereby, and shall not secure indebtedness other than such
indebtedness,
(ii) such Lien shall be imposed on such Property
within one hundred twenty (120) days after the acquisition
thereof or the substantial completion thereof, and
(iii) such Lien shall secure indebtedness in an
amount not exceeding one hundred percent (100%) of the cost
of acquisition or construction of the Property to which such
indebtedness relates, and
(b) Liens existing on Property of any corporation at
the time it becomes a Subsidiary or merges with or
consolidates into the Company or a Subsidiary, and Liens
existing on Property acquired by the Company or any Subsidiary
that were in existence at the time of such acquisition, provided
that
(i) such Lien shall not extend to or cover any
Property other than the Property subject to such Lien at the
time of such transaction, and shall not secure indebtedness other
than the indebtedness secured at the time of such transaction,
(ii) such Lien shall not secure indebtedness in an
amount of any such transaction, and shall not have been created
by the Company or a Subsidiary.
Purchasers -- means the Person listed as purchasers of Notes
on Annex 1 hereto.
Reinvested Transfer -- Section 6.8(e).
Required Holders -- means, at any time, the holders of at
least fifty-one percent (51%) in principal amount of the Notes at
the time outstanding (exclusive of Notes then owned by any one or
more of the Company, any Subsidiary or any Affiliate).
Required Principal Payment -- Section 4.1.
Restricted Basket Transfer Proceeds Amount -- means, at any
time, the net book value of all Restricted Basket Transfer
Proceeds of the Company and the Subsidiaries, determined at such
time. As used in this definition,
Restricted Basket Transfer Proceeds -- means all
consideration other than cash received by the Company or any
Subsidiary in respect of any Transfer of Property of the Company
or any Subsidiary permitted solely by Section 6.8(b) hereof and
in which the Fair Market Value of the aggregate consideration
payable for such Transfer and all related Transfers is greater
than Seven Million Five Hundred Thousand Dollars ($7,500,000).
Restricted Subsidiary Net Worth Amount -- means, at any
time, with respect to any Subsidiary, the amount of the
shareholders' equity of such Subsidiary that cannot at such time
be paid as a dividend on the capital stock of such Subsidiary by
virtue of restrictions, direct or indirect, on the payment of
such dividends imposed by the terms of any indebtedness, whether
or not such indebtedness is recourse or non-recourse to such
Subsidiary.
Securities Act -- means the Securities Act of 1933, as
amended.
Security -- means "security" as defined in section 2(1)
of the Securities Act.
Senior Financial Officer -- means the chief financial
officer, principal accounting officer, treasurer or comptroller
of the Company.
Senior Officer -- means the chairman of the board of
directors, the president, the comptroller, the treasurer and any
vice-president of the Company.
Subsidiary -- means, at any time, a corporation that, in
accordance with GAAP, is properly included in a consolidated
balance sheet of the Company and its consolidated subsidiaries
prepared at such time, as a subsidiary of the Company.
Subsidiary Funded Debt -- means, at any time, with respect
to any Subsidiary,
(a) Funded Debt of such Subsidiary
(b) Preferred Stock of such Subsidiary.
For purposes of determining the amount of Subsidiary Funded Debt
at any time, the amount of Subsidiary Funded Debt shall include
the amount of the principal of all indebtedness constituting
Subsidiary Funded Debt, the amount of accrued and unpaid interest
thereon, the par or stated value of all Preferred Stock
constituting Subsidiary Funded Debt, and the amount of declared
but unpaid dividends thereon, and any other amounts due in
respect of such indebtedness and Preferred Stock.
Successor Corporation -- Section 6.4.
Transfer -- Section 6.8.
Transfer Date -- Section 4.4(a)(ii).
Voting Stock -- means capital stock of any class or classes
of a corporation the holders of which are ordinarily, in the
absence of contingencies, entitled to vote in the election of
corporate directors (or Persons performing similar functions).
Wholly-Owned Subsidiaries -- means, at any time, a
Subsidiary all of the capital stock of which, and securities
convertible into, exchangeable for, or representing the right to
purchase, such capital stock (other than directors' qualifying
shares) is owned at such time by any one or more of the Company
and the other Wholly-Owned Subsidiaries, free of any Lien.
9.2 Generally Accepted Accounting Principles.
Where the character or amount of any asset or liability or
item of income or expense, or any consolidation or other
accounting computation is required to be made for any purpose
hereunder, it shall be done in accordance with GAAP as in effect
on the date of, or at the end of the period covered by, the
financial statements from which such asset, liability, item of
income, or item of expense, is derived, or, in the case of any
such computation, as in effect on the date as of which such
computation is required to be determined, provided, that if any
term defined herein includes or excludes amounts, items or
concepts that would not be included in or excluded from such term
if such term was defined with reference solely to GAAP, such term
will be deemed to include or exclude such amounts, items or
concepts as set forth herein. Whenever a calculation based on
the consolidated financial position of a group of corporations is
required hereby, investments by members of the group in
corporations which are defined hereby to not be members of the
group shall be accounted for using the cost method.
9.3 Directly or Indirectly.
Where any provision herein refers to action to be taken by
any Person, or which such Person is prohibited from taking, such
provision shall be applicable whether such action is taken
directly or indirectly by such Person, including actions taken by
or on behalf of any partnership in which such Person is a general
partner.
9.4 Section Headings and Table of Contents and
Construction.
(a) Section Headings and Table of Contents, etc.
The titles of the Sections of this Agreement and the Table of
Contents of this Agreement appear as a matter of convenience
only, do not constitute a part hereof and shall not affect the
construction hereof. The words "herein," "hereof," "hereunder"
and "hereto" refer to this Agreement as a whole and not to any
particular Section or other Subdivision.
(b) Construction. Each covenant contained herein
shall be construed (absent an express contrary provision herein)
as being independent of each other covenant contained herein, and
compliance with any one covenant shall not (absent such an
express contrary provision) be deemed to excuse compliance with
one or more other covenants.
9.5 Governing Law.
THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, INTERNAL NEW YORK
LAW.
10. MISCELLANEOUS
10.1 Communications.
(a) Method;Address. All communications hereunder
or under the Notes shall be in writing, shall be hand delivered,
deposited into the United States mail (registered or certified
mail), postage prepaid, sent by overnight courier, or sent by
facsimile transmission (confirmed by delivery by overnight
courier sent on the same day as such facsimile transmission) and
shall be addressed,
(i) if to the Company,
Seaboard Corporation
9000 West 67th Street
Shawnee Mission, KS 66202
Fax. (913) 676-8976
Attention: Vice-President - Finance
or at such other address as the Company shall have furnished
in writing to all holders of the Notes at the time outstanding,
and
(ii) if to any of the holders of the Notes,
(A) if such holders are the
Purchasers, at their respective addresses set forth on Annex 1
hereto, and further including any parties referred to on such
Annex 1 which are required to receive notices in addition to such
holders of the Notes, and
(B) if such holders are not the
Purchasers, at their respective addresses set forth in the
register for the registration and transfer of Notes maintained
pursuant to Section 6.3 hereof,
or to any such party at such other address as such party may
designate by notice duly given in accordance with this Section
10.1 to the Company (which other address shall be entered in such
register).
(b) When Given. Any communication shall be deemed
to be received when actually received at the address of the
addressee.
10.2 Confidentiality.
Any information concerning the Company or any Subsidiary
that has been supplied to any holder of Notes by Company or such
Subsidiary and identified in writing by such party as
confidential and that is not, at the time supplied to such holder
or thereafter, information available to the public shall be
treated as confidential by such holder in accordance with the
procedures and standards that such holder generally applies to
information of a confidential nature. Notwithstanding the
foregoing, the Company acknowledges that the holder of any Note
may deliver copies of any financial statements and other
documents delivered to such holder, and disclose any other
information disclosed to such holder, by or on behalf of the
Company or any Subsidiary in connection with or pursuant to this
Agreement to
(a) such holder's directors, officers, employees,
agents and professional consultants,
(b) any other holder of any Note,
(c) any Person to which such holder offers to sell
such Note or any part thereof, provided that such Person first
agrees in writing to be subject to the requirements of this
Section,
(d) any federal or state regulatory authority
having jurisdiction over such holder, and the National
Association of Insurance Commissioners or any similar
organization,
(e) Standard & Poor's Corporation, Moody's Investor
Services, Inc., and any other nationally recognized financial
rating service, which is reviewing the credit rating of any
holder of Notes, and
(f) any other Person to which such delivery or
disclosure may be necessary or appropriate in compliance with any
law, rule, regulation or order applicable to such holder, in
response to any subpoena or other legal process, in connection
with any litigation to which such holder is a party, or in order
to protect such holder's investment in such Note.
10.3 Reproduction of Documents.
This Agreement and all documents relating hereto, including,
without limitation,
(a) consents, waivers and modifications that may
hereafter be executed,
(b) documents received by you at the closing of
your purchase of the Notes (except the Notes themselves), and
(c) financial statements, certificates and other
information previously or hereafter furnished to you or any other
holder of Notes,
may be reproduced by any holder of Notes by any photographic,
photostatic, microfilm, microcard, miniature photographic,
digital or other similar process and each holder of Notes may
destroy any original document so reproduced. The Company agrees
and stipulates that any such reproduction shall be admissible in
evidence as the original itself in any judicial or administrative
proceeding (whether or not the original is in existence and
whether or not such reproduction was made by such holder of Notes
in the regular course of business) and that any enlargement,
facsimile or further reproduction of such reproduction shall
likewise be admissible in evidence. Nothing in this Section 10.3
shall prohibit the Company or any holder of Notes from contesting
the accuracy or validity of any such reproduction.
10.4 Survival.
All warranties, representations, certifications and
covenants made by the Company herein or in any certificate or
other instrument delivered by it or on its behalf hereunder shall
be considered to have been relied upon by you and shall survive
the delivery to you of the Notes regardless of any investigation
made by you or on your behalf. All statements in any such
certificate or other instrument shall constitute warranties and
representations by the Company hereunder. The obligations of the
Company to make payments to the holders of the Notes in respect
of reimbursement of costs, charges, outlays and expenses pursuant
hereto shall survive the payment or prepayment of the Notes and
the termination hereof.
10.5 Successors and Assigns.
This Agreement shall inure to the benefit of and be binding
upon the successors and assigns of each of the parties hereto.
The provisions hereof are intended to be for the benefit of all
holders, from time to time, of Notes, and shall be enforceable by
any such holder, whether or not an express assignment to such
holder of rights hereunder shall have been made by you or your
successor or assign.
10.6 Amendment and Waiver.
(a) Requirements. This Agreement may be amended,
and the observance of any term hereof may be waived, with (and
only with) the written consent of the Company and the Required
Holders; provided that no such amendment or waiver of any of the
provisions of Section 1 through Section 3 hereof, inclusive, or
any defined term used therein, shall be effective as to any
holder of Notes unless consented to by such holder in writing;
and provided further that no such amendment or waiver shall,
without the written consent of the holders of all Notes
(exclusive of Notes held by the Company, any Subsidiary or any
Affiliate) at the time outstanding,
(i) subject to Section 8 hereof, change the
amount or time of any prepayment or payment of principal or
Make-Whole Amount or the rate or time of payment of interest,
(ii) amend or waive the provisions of Section 8
hereof,
(iii) amend the definition of "Required
Holders," or
(iv) amend or waive this Section 10.6.
(b) Solicitation of Noteholders.
(i) Solicitation. Each holder of the Notes
(irrespective of the amount of Notes then owned by it) shall be
provided by the Company with sufficient information to enable
such holder to make an informed decision with respect to any
proposed waiver or amendment of any of the provisions hereof or
the Notes. Executed or true and correct copies of any waiver or
consent effected pursuant to the provisions of this Section 10.6
shall be delivered by the Company to each holder of outstanding
Notes forthwith following the date on which the same shall have
been executed and delivered by all holders of outstanding Notes
required to consent or agree to such waiver or consent.
(ii) Payment. The Company shall not, directly
or indirectly, pay or cause to be paid any remuneration, whether
by way of supplemental or additional interest, fee or otherwise,
or grant any security, to any holder of Notes as consideration
for or as an inducement to the entering into by any holder of
Notes of any waiver or amendment of any of the terms and
provisions hereof unless such remuneration is concurrently paid,
or security is concurrently granted, on the same terms, ratably
to the holders of all Notes then outstanding.
(iii) Scope of Consent. Any consent made
pursuant to this Section 10.6 by a holder of Notes that has
transferred or has agreed to transfer its Notes to the Company,
any Subsidiary or any Affiliate and has provided or has agreed to
provide such written consent as a condition to such transfer
shall be void and of no force and effect except solely as to such
holder, and any amendments effected or waivers granted or to be
effected or granted that would not have been or would not be so
effected or granted but for such consent (and the consents of all
other holders of Notes that were acquired under the same or
similar conditions) shall be void and of no force and effect,
retroactive to the date such amendment or waiver initially took
or takes effect, except solely as to such holder.
(c) Binding Effect. Except as provided in Section
10.6(b)(iii) hereof, any amendment or waiver consented to as
provided in this Section 10.6 shall apply equally to all holders
of Notes and shall be binding upon them and upon each future
holder of any Note and upon the Company whether or not such Note
shall have been marked to indicate such amendment or waiver. No
such amendment or waiver shall extend to or affect any
obligation, covenant, agreement, Default or Event of Default not
expressly amended or waived or impair any right consequent
thereon.
(d) Expenses. The Company shall pay when billed
the reasonable expenses (including expenses incurred in
connection with inspections made pursuant to Section 7.4 hereof)
relating to the consideration, negotiation, preparation or
execution of any amendments, waivers, or consents with respect to
the provisions hereof, and at any time when the parties hereto
are conducting "workout" negotiations, (including, without
limitation, the fees of professional advisors and attorneys and
the allocated cost of your counsel who are your employees or your
affiliates' employees), whether or not any such amendments,
waivers or consents are executed.
10.7 Payments on Notes.
(a) Manner of Payment. The Company shall pay all
amounts payable with respect to each Note (without any
presentment of such Notes and without any notation of such
payment being made thereon) by crediting, by federal funds bank
wire transfer, the account of the holder thereof in any bank in
the United States of America as may be designated in writing by
such holder, or in such other manner as may be reasonably
directed or to such other address in the United States of America
as may be reasonably designated in writing by such holder. Annex
1 hereto shall be deemed to constitute notice, direction or
designation (as appropriate) to the Company with respect to
payments as aforesaid. In the absence of such written direction,
all amounts payable with respect to each Note shall be paid by
check mailed and addressed to the registered holder of such Note
at the address shown in the register maintained by the Company
pursuant to Section 5.1 hereof.
(b) Payments Due on Holidays. If any payment due
on, or with respect to, any Note shall fall due on a day other
than a Business Day, then such payment shall be made on the first
Business Day following the day on which such payment shall have
so fallen due; provided that if all or any portion of such
payment shall consist of a payment of interest, for purposes of
calculating such interest, such payment shall be deemed to have
been originally due on such first following Business Day, such
interest shall accrue and be payable to (but not including) the
actual date of payment, and the amount of the next succeeding
interest payment shall be adjusted accordingly.
(c) Payments, When Received. Any payment to be
made to the holders of Notes hereunder or under the Notes shall
be deemed to have been made on the Business Day such payment
actually becomes available to such holder at such holder's bank
prior to 11:00 a.m. (local time of such bank).
10.8 Entire Agreement.
This Agreement constitutes the final written expression of
all of the terms hereof and is a complete and exclusive statement
of those terms.
10.9 Duplicate Originals, Execution in Counterpart.
Two or more duplicate originals hereof may be signed by the
parties, each of which shall be an original but all of which
together shall constitute one and the same instrument. This
Agreement may be executed in one or more counterparts and shall
be effective when at least one counterpart shall have been
executed by each party hereto, and each set of counterparts that,
collectively, show execution by each party hereto shall
constitute one duplicate original.
[Remainder of page intentionally blank. Next page is
signature page.]
If this Agreement is satisfactory to you, please so indicate
by signing the acceptance at the foot of a counterpart hereof and
returning such counterpart to the Company, whereupon this
Agreement shall become binding between us in accordance with its
terms.
Very truly yours,
SEABOARD CORPORATION
By____________________________
Name:
Title:
Accepted:
THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE
UNITED STATES
By__________________________________
Name:
Title:
[Signature page for the NOTE PURCHASE AGREEMENT of SEABOARD
CORPORATION in connection with the issuance of its 6.49% Senior
Notes due 2005]