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Exhibit 4.11
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LITTELFUSE, INC.
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NOTE PURCHASE AGREEMENT
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DATED AS OF SEPTEMBER 1, 1998
$60,000,000
6.16% SENIOR NOTES DUE SEPTEMBER 1, 2005
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ii
TABLE OF CONTENTS
(Not a Part of the Agreement)
1. PURCHASE AND SALE OF NOTES...............................................................................1
1.1. Authorization of Notes..............................................................................1
1.2. The Closing.........................................................................................1
1.3. Purchase for Investment; ERISA......................................................................2
1.4. Source of Funds.....................................................................................2
1.5. Failure to Tender, Failure of Conditions............................................................4
1.6. Expenses............................................................................................4
2. WARRANTIES AND REPRESENTATIONS...........................................................................5
2.1. Nature of Business..................................................................................5
2.2. Financial Statements; Debt; Material Adverse Change.................................................5
2.3. Subsidiaries and Affiliates.........................................................................6
2.4. Title to Properties; Patents, Trademarks, etc.......................................................6
2.5. Taxes...............................................................................................7
2.6. Pending Litigation..................................................................................7
2.7. Full Disclosure.....................................................................................8
2.8. Corporate Organization and Authority................................................................8
2.9. Charter Instruments, Other Agreements...............................................................8
2.10. Restrictions on Company and Subsidiaries............................................................9
2.11. Compliance with Law.................................................................................9
2.12. ERISA, etc..........................................................................................9
2.13. Environmental Compliance...........................................................................10
2.14. Sale of Notes is Legal and Authorized; Obligations are Enforceable.................................11
2.15. Governmental Consent to Sale of Notes..............................................................12
2.16. Private Offering of Notes..........................................................................12
2.17. No Defaults; Transactions Prior to Closing Date....................................................12
2.18. Use of Proceeds of Notes...........................................................................13
3. CLOSING CONDITIONS......................................................................................13
3.1. Opinions of Counsel................................................................................14
3.2. Warranties and Representations True................................................................14
3.3. Officers'Certificates..............................................................................14
3.4. Legality...........................................................................................14
3.5. Private Placement Number...........................................................................14
3.6. Expenses...........................................................................................14
3.7. Other Purchasers...................................................................................15
3.8. Compliance with this Agreement.....................................................................15
3.9. Proceedings Satisfactory...........................................................................15
4. PAYMENTS................................................................................................15
4.1. Mandatory Principal Amortization Payments..........................................................15
4.2. Optional Prepayments...............................................................................15
4.3. Partial Prepayment Pro Rata........................................................................17
4.4. Notation of Notes on Prepayment....................................................................17
4.5. No Other Optional Prepayments......................................................................17
5. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES...........................................................17
5.1. Registration of Notes..............................................................................17
5.2. Exchange of Notes..................................................................................18
5.3. Replacement of Notes...............................................................................19
5.4. Issuance Taxes.....................................................................................19
6. COVENANTS...............................................................................................19
6.1. Net Worth..........................................................................................19
6.2. Fixed Charges Coverage.............................................................................20
6.3. Restricted Payments................................................................................20
6.4. Funded Debt; Subsidiary Debt.......................................................................21
6.5. Transfers of Property; Subsidiary Stock............................................................22
6.6. Merger, Consolidation, etc.........................................................................24
6.7. Liens..............................................................................................25
6.8. Restricted Investments.............................................................................27
6.9. Transactions with Affiliates.......................................................................27
6.10. Nature of Business.................................................................................28
6.11. Payment of Taxes and Claims........................................................................28
6.12. Maintenance of Properties; Corporate Existence; etc................................................28
6.13. Payment of Notes and Maintenance of Office.........................................................29
6.14. ERISA, etc.........................................................................................30
6.15. Pro-Rata Offers....................................................................................31
6.16. Private Offering...................................................................................31
7. INFORMATION AS TO COMPANY...............................................................................31
7.1. Financial and Business Information.................................................................31
7.2. Officers'Certificates..............................................................................35
7.3. Accountants'Certificates...........................................................................36
7.4. Inspection.........................................................................................36
8. EVENTS OF DEFAULT.......................................................................................36
8.1. Nature of Events...................................................................................36
8.2. Default Remedies...................................................................................38
8.3. Annulment of Acceleration of Notes.................................................................40
9. INTERPRETATION OF THIS AGREEMENT........................................................................41
9.1. Terms Defined......................................................................................41
9.2. GAAP...............................................................................................55
9.3. Directly or Indirectly.............................................................................55
9.4. Section Headings and Table of Contents and Construction............................................56
9.5. Governing Law......................................................................................56
10. MISCELLANEOUS...........................................................................................56
10.1. Communications.....................................................................................56
10.2. Reproduction of Documents..........................................................................57
10.3. Survival...........................................................................................58
10.4. Successors and Assigns.............................................................................58
10.5. Amendment and Waiver...............................................................................58
10.6. Payments on Notes..................................................................................60
10.7. Entire Agreement; Severability.....................................................................60
10.8. Duplicate Originals, Execution in Counterpart......................................................61
Annex 1 -........Information as to Purchasers
Annex 2 -........Payment Instructions at Closing
Annex 3 -........Information as to Company
Exhibit A.........- Form of 6.16% Senior Note due September 1, 2005
Exhibit B1........- Form of Company's Counsel Closing Opinion
Exhibit B2........- Form of Purchaser's Special Counsel Closing Opinion
Exhibit C.........- Form of Officers' Certificate
Exhibit D.........- Form of Secretary's Certificate
-61-
Littelfuse, Inc.
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NOTE PURCHASE AGREEMENT
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$60,000,000
6.16% SENIOR NOTES DUE SEPTEMBER 1, 2005
Dated as of September 1, 1998
TO EACH OF THE PURCHASERS
LISTED IN THE ATTACHED ANNEX 1
Ladies and Gentlemen:
LITTELFUSE, INC., a Delaware corporation (together with its successors
and assigns, the "Company"), hereby agrees with you as follows:
1. PURCHASE AND SALE OF NOTES
1.1......Authorization of Notes.
The Company will authorize the issuance and sale of Sixty Million
Dollars ($60,000,000) in the aggregate principal amount of its six and sixteen
one-hundredths percent (6.16%) Senior Notes due September 1, 2005 (the "Notes,"
such term to include each Note delivered from time to time in accordance with
the Note Purchase Agreement). The Notes shall be substantially in the form of
Exhibit A 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 next to your name on Annex 1 at one hundred percent
(100%) of the principal amount thereof. Your obligation hereunder and
the obligations of the other Purchasers are several and not joint
obligations and you shall have no obligation hereunder and no liability
to any person for the performance or non-performance by any other
Purchaser hereunder.
(b) The Closing. The closing (the "Closing") of the Company's
sale of Notes will be held on September 1, 1998 (the "Closing Date") at
10:00 a.m., local time, at the office of Gardner, Carton & Douglas,
3400 Quaker Tower, 321 North Clark Street, Chicago, Illinois 60610. At
the Closing, the Company will deliver to you one or more Notes (as
indicated next to your name on Annex 1), in the denominations indicated
on Annex 1, in the aggregate principal amount of your purchase, dated
the Closing Date and payable to you or payable as indicated on Annex 1,
against payment by federal funds wire transfer in immediately available
funds of the purchase price thereof, as directed by the Company on
Annex 2.
1.3......Purchase for Investment; ERISA.
(a) Purchase for Investment. You represent to the Company that
you are purchasing the Notes listed on Annex 1 next to your name for
your own account for investment and with no present intention of
distributing the Notes or any part thereof, but without prejudice to
your right at all times to:
(i) sell or otherwise dispose of all or any part of
the Notes under a registration statement filed under the
Securities Act, or in a transaction exempt from the
registration requirements of the Securities Act; and
(ii) have control over the disposition of all of your
assets to the fullest extent required by any applicable
insurance law.
It is understood that, in making the representations set out in Section
2.14(a) and Section 2.15, the Company is relying, to the extent
applicable, upon your representation in the immediately preceding
sentence.
1.4......Source of Funds.
.........You represent that at least one of the following statements
is an accurate representation as to each source of funds (a "Source") to be
used by you to pay the purchase price of the Notes to be purchased by you
hereunder:
(a) if you are an insurance company, the Source does not
include assets allocated to any separate account maintained by you in
which any employee benefit plan (or its related trust) has any
interest, other than a separate account that is maintained solely in
connection with your fixed contractual obligations under which the
amounts payable, or credited, to such plan and to any participant or
beneficiary of such plan (including any annuitant) are not affected in
any manner by the investment performance of the separate account; or
(b) the Source is either (i) an insurance company pooled
separate account, within the meaning of Prohibited Transaction
Exemption ("PTE") 90-1 (issued January 29, 1990), or (ii) a bank
collective investment fund, within the meaning of the PTE 91-38 (issued
July 12, 1991) and, except as you have disclosed to the Company in
writing pursuant to this paragraph (b), no employee benefit plan or
group of plans maintained by the same employer or employee organization
beneficially owns more than 10% of all assets allocated to such pooled
separate account or collective investment fund; or
(c) the Source constitutes assets of an "investment fund"
(within the meaning of Part V of the QPAM Exemption) managed by a
"qualified professional asset manager" or "QPAM" (within the meaning of
Part V of the QPAM Exemption), no employee benefit plan's assets that
are included in such investment fund, when combined with the assets of
all other employee benefit plans established or maintained by the same
employer or by an affiliate (within the meaning of Section V(c)(1) of
the QPAM Exemption) of such employer or by the same employee
organization and managed by such QPAM, exceed 20% of the total client
assets managed by such QPAM, the conditions of Part I(c) and (g) of the
QPAM Exemption are satisfied, neither the QPAM nor a person controlling
or controlled by the QPAM (applying the definition of "control" in
Section V(e) of the QPAM Exemption) owns a 5% or more interest in the
Company and (i) the identity of such QPAM and (ii) the names of all
employee benefit plans whose assets are included in such investment
fund have been disclosed to the Company in writing pursuant to this
paragraph (c); or
(d) the Source is a governmental plan; or
(e) the Source is one or more employee benefit plans, or a
separate account or trust fund comprised of one or more employee
benefit plans, each of which has been identified to the Company in
writing pursuant to this paragraph (e); or
(f) the Source does not include assets of any employee benefit
plan, other than a plan exempt from the coverage of ERISA; or
(g) if you are an insurance company and the Source includes
assets of your general account, the acquisition of the Notes by the
Purchasers is exempt under PTE 95-60 (issued July 12, 1995); or
(h) if you are an insurance company, the source of funds from
which your investment is to be made is a general account of an
insurance company, and the amount of the reserves and liabilities for
the general account contract(s) held by or on behalf of any Benefit
Plan (as defined by the annual statement for life insurance companies
approved by the National Association of Insurance approved by the
National Association of Insurance Commissioners (the "NAIC Annual
Statement")) together with the amount of the reserves and liabilities
for the general account contract(s) held by or on behalf of any other
Benefit Plans maintained by the same employer (or affiliate thereof as
defined in Department of Labor Prohibited Transaction Exemption ("PTE")
95-60) or by the same employee organization (as defined by the NAIC
Annual Statement) in he general account do not exceed 10% of the total
reserves and liabilities of the general account (exclusive of separate
account liabilities) plus surplus as set forth in the NAIC Annual
Statement filed with the state of domicile of the insurance company
(for purposes of the percentage limitation in this clause (h), the
amount of reserves and liabilities for the general account contract(s)
held by or on behalf of a plan shall be determined before reduction for
credits on account of any reinsurance ceded on a coinsurance basis).
As used in this Section 1.4, the terms "employee benefit plan", "governmental
plan", "party in interest" and "separate account" shall have the respective
meanings assigned to such terms in Section 3 of ERISA.
1.5. Failure to Tender, Failure of Conditions.
If at the Closing the Company fails to tender to you the Notes to be
purchased by you thereat, or if the conditions specified in Section 3 to be
fulfilled at the Closing have not been fulfilled, you may thereupon elect to be
relieved of all further obligations hereunder. Nothing in this Section 1.4 shall
operate to relieve the Company from any of its obligations hereunder or to waive
any of your rights against the Company.
1.6. Expenses.
(a) Generally. Whether or not the Notes are sold, the Company
will promptly (and in any event within thirty (30) days of receiving
any statement or invoice therefor) pay all fees, expenses and costs
relating hereto, including, but not limited to:
(i) the cost of reproducing this Agreement, the Notes and the
other documents delivered in connection with the Closing;
(ii) the fees and disbursements of your special counsel incurred
in connection herewith;
(iii)the cost of delivering to your home office or custodian
bank, insured to your satisfaction, the Notes purchased by
you at the Closing; and
(iv) the fees, expenses and costs incurred in complying with each
of the conditions to closing set forth in Section 3.
(b) Counsel. Without limiting the generality of the foregoing,
it is agreed and understood that the Company will pay, at the Closing,
the statement for fees and disbursements of your special counsel
presented at the Closing and the Company will also pay upon receipt of
any statement therefor each additional statement for fees and
disbursements of your special counsel rendered after the Closing in
connection with the issuance of the Notes or the matters referred to in
Section 1.5(a).
(c) Survival. The obligations of the Company under this
Section 1.5, Section 5.4, Section 8.2(e) and Section 10.5(d) shall
survive the payment of the Notes and the termination hereof.
2. WARRANTIES AND REPRESENTATIONS
To induce you to enter into this Agreement and to purchase the Notes
listed on Annex 1 next to your name, the Company warrants and represents, as of
the Closing Date, as follows:
2.1. Nature of Business.
The Confidential Offering Memorandum, prepared by the Placement Agent
(together with all exhibits and annexes thereto, the "Offering Memorandum") (a
copy of which previously has been delivered to you), correctly describes the
general nature of the business and principal Properties of the Company and the
Subsidiaries as of the Closing Date.
2.2. Financial Statements; Debt; Material Adverse Change.
(a) Financial Statements. The Company has provided you with
its financial statements described in Part 2.2(a) of Annex 3. 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
(reflecting "fresh-start reporting" at December 27, 1991) and the
results of their operations and cash flows for such periods.
(b) Debt. Part 2.2(b) of Annex 3 lists all Debt of the Company
and the Subsidiaries as of the Closing Date, and provides the following
information with respect to each item of such Debt:
(i) the type thereof,
(ii) the holder thereof,
(iii) the outstanding amount,
(iv) the current portion, if any, and (v) the
collateral securing such Debt, if any.
(c) Material Adverse Change. Since December 31, 1997, 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 sets forth:
(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
(b) to the extent that such information is not disclosed in
the Offering Memorandum, a description of the Affiliates (other than
individuals) and the nature of their 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; Patents, Trademarks, etc.
(a) Each of the Company and the Subsidiaries has good and
marketable title to all of the real Property, and good title to all of
the other Property, reflected in the most recent statement of financial
condition referred to in Part 2.2(a) of Annex 3 (except as sold or
otherwise disposed of in the ordinary course of business), except for
such failures to have such good and marketable 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
6.7.
(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 and 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 their respective
Properties, income or franchises, that are due and payable
have been paid, except for such tax returns and such tax
payments that could not, in the aggregate for all such tax
returns and payments, reasonably be expected to have a
Material Adverse Effect.
(ii) All liabilities of each of the Company, the
Subsidiaries and the other Persons referred to in the
preceding clause (i) with respect to federal income taxes have
been finally determined except for the fiscal years 1994
through 1997, the only years not closed by the completion of
an audit or the expiration of the statute of limitations.
(b) Book Provisions Adequate.
(i) The amount of the liability for taxes reflected
in each of the statements of financial condition referred to
in Part 2.2(a) of Annex 3 is in each case an adequate
provision for taxes as of the dates of such statements of
financial condition (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 statement of
financial condition referred to in Part 2.2(a) of Annex 3.
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 judgment, order, writ, injunction or decree of any
court, Governmental Authority, arbitration board or tribunal that, in
the aggregate for all such defaults, could reasonably be expected to
have a Material Adverse Effect.
2.7. Full Disclosure.
The financial statements referred to in Part 2.2(a) of Annex 3 do not,
nor does this Agreement, the Offering 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 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,
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 (each of which states is
listed in Part 2.8(d) of Annex 3) 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 Properties may be
bound except 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 Debt, other than this
Agreement and the agreements listed in Part 2.10(b) of Annex 3, 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; or
(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 6.7.
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, etc.
(a) Prohibited Transactions. Neither the execution of this
Agreement nor the purchase of the Notes by you will constitute a
"prohibited transaction" (as 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 1.4 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 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.
(c) Foreign Pension Plans. All Foreign Pension Plans have been
established, operated, administered and maintained in compliance in all
material respects with all laws, regulations and orders applicable
thereto. Except where it would not have, either individually or in the
aggregate, a Material Adverse Effect, all premiums, contributions and
any other amounts required by applicable Foreign Pension Plan documents
or applicable laws, regulations and orders have been paid or accrued as
required.
(d) Information in Annex. Part 2.12(d) of Annex 3
identifies each:
(i) ERISA Affiliate;
(ii) Pension Plan;
(iii) Multiemployer Plan; and
(iv) Foreign Pension Plan.
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 presently 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 present 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 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 ownership or
leasing of any Property resulting in the release of any
hazardous substance resulting in any violation of any
Environmental Protection Law;
where the effect of which, in the aggregate for all such notices and
communications, could reasonably be expected to have a Material Adverse
Effect.
2.14. Sale of Notes is Legal and Authorized; Obligations are
Enforceable.
(a) Sale of Notes is Legal and Authorized. Each of the
issuance, sale and delivery of the Notes by the Company, the execution
and delivery hereof by the Company and compliance by the Company with
all of the provisions hereof and of the Notes;
(i) is within the corporate powers of the Company; and
(ii) is legal and does not conflict with, result in
any breach of any of the provisions of, constitute a default
under, or result in the creation of any Lien upon any Property
of the Company or any Subsidiary under the provisions of, any
agreement, charter instrument, bylaw or other instrument to
which it is a party or by which it or any of its Properties
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. Private Offering of Notes.
Neither the Company nor the Placement Agent (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 the Purchasers and not more than thirty nine
(39) other institutional investors, each of whom was offered all or a portion of
the Notes at private sale for investment.
2.17. No Defaults; Transactions Prior to Closing Date.
(a) No event has occurred and no condition exists that, upon
the execution and delivery of this Agreement and the issuance of the
Notes, would constitute a Default or an Event of Default. Neither the
Company nor any Subsidiary is in default and no waiver of default is
currently in effect, in the payment of any principal or interest on any
Indebtedness of the Company or such Subsidiary and no event or
condition exists with respect to any Indebtedness of the Company or any
Subsidiary that would permit (or that with notice or the lapse of time,
or both, would permit) one or more Persons to cause such to become due
and payable before its stated maturity or before its regularly
scheduled dates of payment.
(b) The Company has not entered into any transaction since the
date of the most recent statement of financial condition referred to in
Part 2.2(a) of Annex 3 that would have been prohibited by Section 6.1
through Section 6.9, inclusive, had such Sections applied since such
date.
2.18. Use of Proceeds of Notes.
(a) Use of Proceeds. The Company will apply the proceeds from
the sale of the Notes in the manner specified in Part 2.18(a) of Annex
3.
(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,
Regulations T, U and X of the Board of Governors of the Federal Reserve
System, 12 C.F.R., Chapter II. The obligations of the Company under
this Agreement and the Notes are not and will not be directly or
indirectly secured by any Margin Security, and no Notes are being sold
on the basis of any such collateral.
(c) Absence of Foreign or Enemy Status. Neither the Company
nor any Subsidiary is an "enemy" or an "ally of the enemy" within the
meaning of section 2 of the Trading with the Enemy Act (50 U.S.C. App.
ss.ss. 1 et seq.), as amended. Neither the Company nor any Subsidiary
is in violation of, and neither the issuance and sale of the Notes by
the Company nor its use of the proceeds thereof as contemplated by this
Agreement will violate, the Trading with the Enemy Act, as amended, or
any executive orders, proclamations or regulations issued pursuant
thereto, including, without limitation, regulations administered by the
Office of Foreign Asset Control of the Department of the Treasury (31
C.F.R., Subtitle B, Chapter V).
3. CLOSING CONDITIONS
Your obligation to purchase and pay for the Notes to be delivered to
you at the Closing is subject to the following conditions precedent:
3.1. Opinions of Counsel.
You shall have received from
(a) Chapman and Cutler, counsel for the Company, and
(b) Gardner, Carton & Douglas, 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 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 shall be true
on the Closing Date with the same effect as though made on and as of that date.
3.3. Officers' Certificates.
You shall have received:
(a) a certificate dated the Closing Date and signed by two
Senior Officers, substantially in the form of Exhibit
C; 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.
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 such acquisition shall not subject you to any penalty or other
onerous condition in or pursuant to any such law or regulation, 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
1.6(b) shall have been paid in full.
3.7. Other Purchasers.
None of the other Purchasers shall have failed to execute and deliver
this Agreement or to accept delivery of or make payment for the Notes to be
purchased by it on the Closing Date.
3.8. Compliance with this Agreement.
Each of the Company and the Subsidiaries shall have performed and
complied with all agreements and conditions contained herein that are required
to be performed or complied with by the Company and the Subsidiaries on or prior
to the Closing Date, and such performance and compliance shall remain in effect
on the Closing Date.
3.9. 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. PAYMENTS
4.1. Mandatory Principal Amortization Payments.
The Company shall pay, and there shall become due and payable, the
following principal amounts of the Notes on September 1 in each year beginning
on September 1, 1999 and ending on September 1, 2005, inclusive (each, a
"Mandatory Principal Amortization Payment"):
September 1, 1999 $5,000,000
September 1, 2000 $5,000,000
September 1, 2001 $10,000,000
September 1, 2002 $10,000,000
September 1, 2003 $10,000,000
September 1, 2004 $10,000,000
September 1, 2005 $10,000,000 (final maturity)
Each Mandatory Principal Amortization Payment shall be at one hundred
percent (100%) of the principal amount payable, together with interest accrued
thereon to the date of payment. Without limitation of the foregoing, all of the
principal of the Notes remaining outstanding on September 1, 2005 (if any),
together with interest accrued thereon, shall become due and payable on
September 1, 2005.
4.2. Optional Prepayments.
(a) Optional Prepayments. The Company may at any time after
the Closing Date prepay the principal amount of the
Notes in part, in integral multiples of One Million
Dollars ($1,000,000), or in whole, in each case
together with: (i) an amount equal to the Make-Whole
Amount 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 prepayment; and
(v) a reasonably detailed calculation 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, together
with a copy of the Applicable H.15 used in determining the Make-Whole
Discount Rate (as both such terms are defined in the definition of
Make-Whole Amount) in respect of such prepayment.
(c) Effect of Prepayment. Each prepayment of Notes pursuant to
this Section 4.2 shall be applied to the Mandatory Principal
Amortization Payments in inverse order of maturity.
4.3. Partial Prepayment Pro Rata. If at the time any required
prepayment or optional prepayment under Section 4.1 or Section 4.2 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, as nearly as
practicable, to the respective unpaid principal amounts of the Notes then
outstanding, with adjustments, to the extent practicable, to equalize for any
prior prepayments not in such proportion.
4.4. Notation of Notes on Prepayment.
Upon any partial prepayment of a Note, such Note may, at the option of
the holder thereof be:
(a) surrendered to the Company pursuant to Section 5.2 in
exchange for a new Note in principal amount equal to
the principal amount remaining unpaid on the
surrendered Note;
(b) made available to the Company for notation thereon of
the portion of the principal so prepaid; or
(c) marked by such holder with a notation thereon of the
portion of the principal so prepaid.
In case the entire principal amount of any Note is paid, 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 paid principal amount of any Note.
4.5. No Other Optional Prepayments.
Except as provided in Section 4.2 or in accordance with an offer made
in compliance with Section 6.15, the Company may not make any optional
prepayment (whether directly or indirectly by purchase or other acquisition) in
respect of the Notes.
5. registration; exchange; substitution of notes
5.1. Registration of Notes.
The Company will cause to be kept at its office maintained pursuant to
Section 6.13 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.
5.2. Exchange of Notes.
(a) Upon surrender of any Note at the office of the Company
maintained pursuant to Section 6.13 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, within five (5) Business Days after such
surrender, deliver, at the Company's expense (except as provided
below), new Notes in exchange therefor, in denominations of at least
the Applicable Minimum Denomination, in an aggregate principal amount
equal to the unpaid principal amount of the surrendered Note. Each such
new Note shall, subject to Section 5.2(d), be payable to such Person as
such holder may request and shall be substantially in the form of
Exhibit A. 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.
(b) 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) 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), it shall:
(i) prior to the delivery of such Note, make a
notation thereon of all principal, if any, paid on such Note
and shall also indicate thereon the date to which interest
shall have been paid on such Note; and
(ii) promptly notify (or cause the transferee of any
such Note to 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) Notwithstanding anything else in this Section 5.2 or
elsewhere in this Agreement to the contrary, each holder of Notes
agrees that such holder will not at any time (except with the written
consent of the Company) sell or transfer any Note to any other Person
(other than to a Investor Affiliate of such holder) unless the
outstanding principal amount of such Note at such time, aggregated with
the outstanding principal amount of each other Note sold or transferred
at such time to such other Person (or group of other Persons that are
Investor Affiliates of one another) and the aggregate principal amount
of Notes (if any) already held by such other Person (or group of other
Persons that are Investor Affiliates of one another), equals or exceeds
the Applicable Minimum Denomination at such time.
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 such Institutional Investor, such
Institutional Investor's own unsecured agreement of indemnity shall be
deemed to be satisfactory for such purpose), or
(b) In the case of mutilation, upon surrender and cancellation
thereof,
the Company at its own expense will execute and, within five (5) Business Days
after such receipt, deliver, in lieu thereof, a new Note, dated and bearing
interest from the date to which interest shall have been paid on such lost,
stolen, destroyed or mutilated Note or dated the date of such lost, stolen,
destroyed or mutilated Note if no interest shall have been paid thereon.
5.4. Issuance Taxes.
The Company will pay all taxes (if any) due in connection with and as
the result of the initial issuance and sales 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, provided that this Section 5.4 shall not be
construed to require the Company to pay, or to save any holder of Notes harmless
against any liabilities with respect to, any income tax imposed on any holder of
Notes. The obligations of the Company under this Section 5.4 shall survive the
payment or prepayment of the Notes and the termination hereof.
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. Net Worth.
The Company will not at any time permit Consolidated Net Worth to be
less than Fifty-Five Million Dollars ($55,000,000).
6.2. Fixed Charges Coverage.
The Company will not at any time permit the ratio of:
(a) the result of
(i) Consolidated Operating Cash Flow for the period
of four (4) consecutive fiscal quarters of the Company then
most recently ended, minus
(ii) the aggregate amount of Capital Expenditures
incurred by the Company and the Subsidiaries during such
period;
to
(b) Consolidated Fixed Charges for such period;
to be less than 1.5 to 1.0
6.3. Restricted Payments.
The Company will not, and will not permit any Subsidiary to, declare or
make, or become obligated to declare or make, any Restricted Payment unless:
(a) Immediately after, and after giving effect to, such
Restricted Payment, Consolidated Net Worth would be equal to at least
the following amounts during the following periods:
Period Consolidated Net Worth
Closing Date through January 1, 2000 $70,000,000
January 2, 2000 through December 30, 2000 75,000,000
December 31, 2000 through December 29, 2001 80,000,000
December 30, 2001 through December 28, 2002 85,000,000
December 29, 2002 through January 3, 2004 90,000,000
January 4, 2004 through January 1, 2005 95,000,000
January 2, 2005 through Maturity 100,000,000
For purposes of determining whether a particular Restricted
Payment will cause the Consolidated Net Worth to fall below the
above-described applicable Consolidated Net Worth threshold amount, it
shall be assumed that the Consolidated Net Worth immediately prior to
such Restricted Payment shall be equal to the Consolidated Net Worth
reflected in the most recent Form 10-Q filed by the Company with the
Securities and Exchange Commission or, if the Company has filed a Form
10-K with the Securities and Exchange Commission since the filing of
its most recent Form 10-Q, the Consolidated Net Worth reflected in such
Form 10-K.
(b) at the time of such declaration, making or becoming
obligated and immediately before, and after giving effect to, such
Restricted Payment and any concurrent transactions;
(i) no Default or Event or Default exists or would exist,
and
(ii) the Company would be permitted by the provisions of
Section 6.4(a) to incur at least One Dollar ($1.00) of
additional Funded Debt.
6.4. Funded Debt; Subsidiary Debt.
(a) Funded Debt. The Company will not, and will not permit any
Subsidiary to, at any time after the Initial issuance and sale of the
Notes, incur or in any other manner become liable in respect of any
Funded Debt (other than Funded Debt of a Subsidiary owed to the Company
or a Wholly-Owned Subsidiary) unless, after giving effect thereto and
to any concurrent application of the proceeds of such Funded Debt, the
ratio of:
(i) Consolidated Funded Debt;
to
(ii) Consolidated Operating Cash Flow for the period
of four (4) consecutive fiscal quarters of the Company then
most recently ended;
would not exceed 3.25 to 1.0.
(b) Subsidiary Debt. The Company will not permit any
Subsidiary to, at any time after the initial issuance and sale of the
Notes, incur or in any other manner become liable in respect of any
Debt (other than Debt of a Subsidiary owed to the Company or a
Wholly-Owned Subsidiary) unless, after giving effect thereto and to any
concurrent application of the proceeds of such Debt, (i) Total
Subsidiary Debt, plus (ii) Debt secured by Liens incurred pursuant to
Section 6.7(a)(viii), would not exceed five percent (5%) of
Consolidated Capitalization and provided further that such Debt could
be incurred pursuant to paragraph (a) of this Section 6.4.
(c) Deemed Incurrences. For purposes hereof:
(i) each Person any of whose outstanding Debt is at
any time sold, transferred or otherwise disposed of by the
Company or a Subsidiary shall be deemed to have incurred all
such Debt at the time of such sale, transfer or other
disposition;
(ii) each Person that becomes a Subsidiary after the
Closing Date will be deemed to have incurred all Debt of such
Person at the time such Person becomes a Subsidiary; and
(iii) each Person that at any time extends, renews,
refunds or refinances any Debt will be deemed to have incurred
such Debt at such time.
6.5. Transfers of Property; Subsidiary Stock.
(a) Transfers of Property. The Company will not, and will not
permit any Subsidiary to, sell, lease as lessor, transfer or otherwise
dispose of any Property (collectively, "Transfers"), except:
(i) Transfers of inventory and of unuseful, obsolete or worn
out Property, in each case in the ordinary course of business of
the Company or such Subsidiary;
(ii) Transfers from a Subsidiary to the Company or to a
Wholly-Owned Subsidiary; and
(iii) any other Transfer of Property at any time to any
Person, other than to an Affiliate, for an Acceptable
Consideration if:
(A) the sum of
(1) the current book value of such Property, plus
(2) the aggregate book value of all other Property of the
Company and the Subsidiaries Transferred (other than in
Transfers referred to in the foregoing clause (i) and
clause (ii) (collectively, "Excluded Transfers"))
during the period of three hundred sixty-five (365)
days ended at the time of such Transfer,
would not exceed five percent (5%) of Consolidated
Assets determined immediately prior to giving effect
to such Transfer;
(B) the sum of
(1) the current book value of such Property, plus
(2) the aggregate book value of all other Property of the
Company and the Subsidiaries Transferred (other than in
Excluded Transfers) during the period commencing on the
Closing Date and ended at the time of such Transfer,
would not exceed twenty-five percent (25%) of
Consolidated Assets determined immediately prior to
giving effect to such Transfer; and
(C) immediately before and after the
consummation of such Transfer, and after giving
effect thereto, no Default or Event of Default would
exist.
(b) Transfers of Subsidiary Stock. The Company will not, and
will not permit any Subsidiary to, Transfer any shares of the stock (or
any warrants, rights or options to purchase stock or other Securities
exchangeable for or convertible into stock) of a Subsidiary (such
stock, warrants, rights, options and other Securities herein called
"Subsidiary Stock"), nor will any Subsidiary issue, sell or otherwise
dispose of any shares of its own Subsidiary Stock, provided that the
foregoing restrictions do not apply to:
(i) the issuance by a Subsidiary of shares of its own
Subsidiary Stock to the Company or a Wholly-Owned Subsidiary;
(ii) Transfers (other than leases) by the Company or a
Subsidiary of shares of Subsidiary Stock to the Company or a
Wholly-Owned Subsidiary;
(iii) the issuance by a Subsidiary of directors' qualifying
shares; and
(iv) the Transfer of all of the Subsidiary Stock of a
Subsidiary owned by the Company and the other Subsidiaries if:
(A) such Transfer satisfies the requirements of Section
6.5(a)(iii);
(B) in connection with such Transfer the entire investment
(whether represented by stock, Debt, claims or
otherwise) of the Company and the other Subsidiaries in
such Subsidiary is Transferred to a Person other than
(1) the Company or (2) a Subsidiary not simultaneously
being disposed of;
(C) the Subsidiary being disposed of has no continuing
investment in any other Subsidiary not simultaneously
being disposed of or in the Company; and
(D) immediately before and after the consummation of such
Transfer, and after giving effect thereto, no Default
or Event of Default would exist.
For purposes of determining the book value of Property constituting Subsidiary
Stock being Transferred as provided in clause (iv) above, such book value shall
be deemed to be the aggregate book value of all assets of the Subsidiary that
shall have issued such Subsidiary Stock.
6.6. Merger, Consolidation, etc.
(a) Merger and Consolidation. The Company will not, and will
not permit any Subsidiary to, merge with or into or consolidate with or
into any other Person or permit any other Person to merge or
consolidate with or into it (except that a Subsidiary may merge into or
consolidate with the Company or a Wholly-Owned Subsidiary if the
Company or such Wholly-Owned Subsidiary is the surviving corporation),
provided that the foregoing restriction does not apply to the merger or
consolidation of the Company with another corporation if:
(i) the corporation that results from such merger or
consolidation (the "Surviving Corporation") is organized under
the laws of the United States of America or any state 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 or acknowledged by the Surviving
Corporation pursuant to such agreements and instruments 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, in form, scope and substance satisfactory
to the Required Holders, to the effect that such agreements
and instruments are enforceable in accordance with their
terms; and
(iii) immediately prior to, and immediately after the
consummation of the transaction, and after giving effect
thereto,
(A) no Default or Event of Default exists or would exist,
and
(B) the Surviving Corporation would be permitted by the
provisions of Section 6.4(a) to incur at least One
Dollar ($1.00) of additional Funded Debt.
(b) Acquisition of Stock, etc. The Company will not, and will
not permit any Subsidiary to, 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,
(i) no Default or Event of Default exists or would exist,
and
(ii) the Company would be permitted by the provisions of
Section 6.4(a) to incur at least One Dollar ($1.00) of
additional Funded Debt.
6.7. 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 any Lien except:
(i) Liens securing Property taxes, assessments or
governmental charges or levies or the claims or demands of
materialmen, mechanics, carriers, warehousemen, vendors,
landlords and other like Persons, provided that the payment
thereof is not at the time required by Section 6.11;
(ii) Liens
(A) arising from judicial attachments and judgments,
(B) securing appeal bonds or supersedeas bonds, and
(C) arising in connection with court proceedings
(including, without limitation, surety bonds and letters of
credit or any other instrument serving a similar purpose),
provided that (1) the execution or other enforcement of such
Liens is effectively stayed, (2) the claims secured thereby
are being actively contested in good faith and by appropriate
proceedings, (3) adequate book reserves shall have been
established and maintained and shall exist with respect
thereto and (4) the aggregate amount so secured shall not at
any time exceed Three Million Dollars ($3,000,000);
(iii) 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 6.7(a)(ii)
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) 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
detract from the value of such Properties or interfere with
the use of such Property in the ordinary conduct of the
business of the Company and the Subsidiaries in a manner that
has or could reasonably be expected to have a Material Adverse
Effect;
(v) Liens on Property of a Subsidiary, provided that
such Liens secure only obligations owing to the Company;
(vi) Liens in existence on the Closing Date securing
Debt, provided that such Liens are described in Part
6.7(a)(vi) of Annex 3;
(vii) Purchase Money Liens, if, after giving effect
thereto and to any concurrent transactions:
(A) each such Purchase Money Lien secures Debt in an amount
not exceeding eighty percent (80%) of the cost of
acquisition or construction of the particular Property
to which such Debt relates;
(B) such Property is useful, and intended to be used, in
the ordinary course of business of the Company or a
Subsidiary;
(C) the aggregate principal amount of all Debt secured by
all such Purchase Money Liens does not at any time
exceed five percent (5%) of Consolidated
Capitalization; and
(D) no Default or Event of Default would exist; and
(viii) In addition to Liens permitted by the preceding
subparagraphs (i) through (vii), additional Liens securing
Debt; provided that (i) such Debt shall be permitted to be
incurred pursuant to Section 6.4(a) and (ii) the aggregate
amount of Debt secured by Liens permitted by this
subparagraph (viii) plus Debt incurred pursuant to Section
6.4(b), shall not at any time exceed five percent (5%) of
Consolidated Capitalization.
(b) Equal and Ratable Lien; Equitable Lien. In case any
Property shall be subjected to a Lien in violation of this Section 6.7,
the Company will immediately 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, satisfactory in form and substance to the
Required Holders, of independent counsel 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
fullest extent that, and with such priority as, the holders of Notes
may be entitled thereto under applicable law, of an equitable Lien on
such Property securing the Notes (provided that, notwithstanding the
foregoing, each holder of Notes shall have the right to elect at any
time, by delivery of written notice of such election to the Company, to
cause the Notes held by such holder not to be secured by such Lien or
such equitable Lien). A violation of this Section 6.7 will constitute
an Event of Default, whether or not any such provision is made pursuant
to this Section 6.7(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 not prohibited to create, assume or incur, or permit to
exist, under the foregoing provisions of this Section 6.7 or to
evidence for informational purposes a lessor's interest in Property
leased to the Company or any such Subsidiary.
6.8. Restricted Investments.
The Company will not, and will not permit any Subsidiary to make or
permit to exist any Restricted Investment unless immediately after, and after
giving effect to such Restricted Investment:
(a) the aggregate amount of all Restricted Investments held by
the Company and the Subsidiaries at such time would not exceed ten
percent (10%) of Consolidated Capitalization; and
(b) no Default or Event of Default exists or would exist.
6.9. 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 of such Subsidiary than would obtain in a comparable
arm's-length transaction with a Person not an Affiliate (provided that, with
respect to salaries, bonuses and other compensation paid to officers and
directors of the Company and of the Subsidiaries, such terms shall be fair and
reasonable but need not be comparable to terms that would obtain in an
arm's-length transaction).
6.10. Nature of Business.
The Company will not, and will not permit any Subsidiary to, engage in
any business if, as a result thereof, the general nature of the businesses of
the Company and the Subsidiaries, taken as a whole, would be substantially
changed from the businesses thereof described in the Offering Memorandum.
6.11. 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
(i) while being actively contested in good faith and
by appropriate proceedings as long as adequate book reserves
have been established and maintained and exist with respect
thereto, and
(ii) so long as the title of the Company or the
Subsidiary, as the case may be, to, and its right to use, such
Property, is not materially adversely affected thereby.
6.12. Maintenance of Properties; Corporate Existence; etc.
The Company will, and will cause each Subsidiary to:
(a) Property - maintain its Property in good condition and
working order, ordinary wear and tear 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 (including, without
limitation, insurance with respect to losses arising out of Property
loss or damage, public liability, business interruption, larceny,
workers' compensation, embezzlement or other criminal misappropriation)
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 in which accurate and complete entries shall be
made of all its business transactions and that will permit the
provision of accurate and complete financial statements in accordance
with GAAP;
(d) Corporate Existence and Rights -
(i) 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
(ii) to maintain each Subsidiary as a Subsidiary,
in each case except as permitted by Section 6.5(b) and Section 6.6; 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
OSHA) and not fall 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.
6.13. 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 where
notices, presentations and demands in respect hereof or of 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.
6.14. ERISA, etc.
(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.
(b) Relationship of Vested Benefits to Pension Plan Assets.
The Company will not at any time permit the present value of all
employees benefits vested under each Pension Plan to exceed the assets
of such Pension Plan allocable to such vested benefits at such time, in
each case determined pursuant to Section 6.14(c), if such excess,
together with the excess (if any) of such present value over such
assets for each other Pension Plan at such time, is more than Five
Million Dollars ($5,000,000).
(c) Valuations. All assumptions and methods used to determine
the actuarial valuation of vested employee benefits under Pension Plans
and the present value of assets of Pension Plans will be reasonable in
the good faith judgment of the Company and will comply with all
requirements of law.
(d) Prohibited Actions. The Company will not, and will not
permit any ERISA Affiliate to:
(i) engage in any "prohibited transaction" (as
defined in section 406 of ERISA or section 4975 of the IRC)
that would result in the imposition of a material tax or
penalty;
(ii) incur with respect to any Pension Plan any
"accumulated funding deficiency" (as defined in section 302 of
ERISA), whether or not waived;
(iii) terminate any Pension Plan in a manner that could
result in
(A) the imposition of a Lien on the Property of the Company
or any Subsidiary pursuant to section 4068 of ERISA, or
(B) the creation of any liability under section 4062 of
ERISA;
(iv) fail to make any payment required by section 515
of ERISA; or
(v) at any time be an "employer" (as defined in
section 3(5) of ERISA) required to contribute to any
Multiemployer Plan if, at such time, it could reasonably be
expected that the Company or any Subsidiary will incur
withdrawal liability in respect of such Multiemployer Plan and
such liability, if incurred, together with the aggregate
amount of all other withdrawal liability as to which there is
a reasonable expectation of incurrence by the Company or any
Subsidiary under any one or more Multiemployer Plans, could
reasonably be expected to have a Material Adverse Effect.
(e) Foreign Pension Plans. The Company will, and will cause
each Subsidiary to, make all required payments in respect of funding
any Foreign Pension Plan applicable to such Person and otherwise comply
with all applicable laws, statutes, rules and regulations governing or
affecting such Foreign Pension Plan, except where the failure to make
any such payment or the failure to so otherwise comply, in the
aggregate for all such failures, could not reasonably be expected to
have a Material Adverse Effect.
6.15. Pro-Rata Offers.
The Company will not, and will not 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 and upon the same terms.
In case the Company acquires any Notes, such Notes will immediately thereafter
be canceled and no Notes will be issued in substitution therefor.
6.16. 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
issuance 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 will 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 forty-five (45) days thereafter, duplicate
copies of:
(i) a consolidated statement of financial condition of
the Company and the Subsidiaries as at the end of such
quarter, and
(ii) consolidated statements of operations and cash
flows of the Company and the 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 immediately preceding 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;
(b) Annual Statements - as soon as practicable after the end
of each fiscal year of the Company, and in any event within ninety (90)
days thereafter, duplicate copies of:
(i) consolidated and consolidating statements of
financial condition of the Company and the Subsidiaries, as
at the end of such year, and
(ii) consolidated and consolidating statements of
operations, shareholders' equity and cash flows of the Company
and the Subsidiaries for such year,
setting forth in each case in comparative form the figures for the immediately
preceding fiscal year, all in reasonable detail, prepared in accordance with
GAAP, and accompanied by:
(A) In the case of such consolidated
statements, an opinion thereon of independent
certified public accountants of recognized national
standing, which opinion shall, without qualification,
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,
(B) a statement from such independent certified public
accountants that such consolidating statements were
prepared using the same work papers as were used in the
preparation of such consolidated statements,
(C) a certification by a Senior Financial Officer that such
consolidated and consolidating statements are complete
and correct, and
(D) the certificates required by Section 7.2 and Section
7.3;
(c) Audit Reports - promptly upon receipt thereof, a copy of
each other report submitted to the Company or any Subsidiary by
independent accountants in connection with any management report,
special audit report or comparable analysis prepared by them with
respect to the books of the Company or any Subsidiary;
(d) SEC and Other Reports - promptly upon their becoming
available, a copy of each financial statement, report (including,
without limitation, each Quarterly Report on Form 10-Q, each Annual
Report on Form 10-K and each Current Report on Form 8-K), 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 (other than transmittal
letters), 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;
(e) ERISA -
(i) Immediately upon becoming aware of the occurrence of
any
(A) "reportable event" (as defined in section 4043 of
ERISA), excluding, however, such events as to which the PBGC by
regulation shall have waived the requirement of section 4043(a)
of ERISA that it be notified within thirty (30) days of the
occurrence of such event (provided that a failure to meet the
minimum funding standard of section 412 of the IRC and of section
302 of ERISA shall not be so excluded regardless of the issuance
of any such waiver of the notice requirement in accordance with
either section 4043(a) of ERISA or section 412(d) of the IRC), or
(B) "prohibited transaction" (as 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 IRS, the DOL 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 proceeding 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 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;
(f) Actions, Proceedings - promptly after the commencement
thereof, notice of any action or proceeding relating to
the Company or any Subsidiary in any court or before
any Governmental Authority or arbitration board or
tribunal as to which there is a reasonable possibility
of an adverse determination and that, if adversely
determined, would have a Material Adverse Effect;
(g) Certain Environmental Matters - promptly written notice
of and a description of any event or circumstance that,
had such event or circumstance occurred or existed
immediately prior to the Closing Date, would have been
required to be disclosed as an exception to any
statement set forth in Section 2.13;
(h) Notice of Default or Event of Default - immediately
upon becoming aware of the existence of any condition
or event that 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;
(i) Notice of Claimed Default - immediately upon becoming
aware that the holder of any Note, or of any Debt or
any Security of the Company or any Subsidiary, shall
have given notice or taken any other action with
respect to a claimed Default, Event or Default, 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,
default or event of default and what action the Company
is taking or proposes to take with respect thereto; and
(j) Requested Information - with reasonable promptness,
such other data and information as from time to time
may be reasonably requested by any holder of Notes,
including, without limitation,
(i) copies of any statement, report or certificate furnished
to any holder of any Debt or any Security of the Company or any
Subsidiary,
(ii) information requested to comply with any request
of the National Association of Insurance Commissioners in
respect of the designation of the Notes, and
(iii) information requested to comply with 17 C.F.R.
ss.230.144A, as amended from time to time,
provided that any such request with respect to any of the data and
information referred to in the foregoing clauses (i), (ii), (iii) shall
be deemed to be reasonable for purposes of this Section 7.1(j).
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) 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 6.1 through Section 6.9,
inclusive, during the period covered by the statement of operations
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 calculations of the amounts, 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 statement 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, at
the expense of the Company at any time when a Default or Event of Default has
occurred and is in existence, and otherwise at the expense of such holder, 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
such 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 at any time:
(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) Business Days
after the date such payment is due;
(c) Particular Covenant Defaults - the Company or any
Subsidiary shall fail to perform or observe any covenant contained in
Section 6.1 through 6.8, inclusive, or in Section 7.1(h) or Section
7.1(i), and such failure shall continue for more than five (5) days
after such failure shall first become known to any officer of the
Company;
(d) Other Defaults - the Company or any Subsidiary shall fail
to comply with any other provision hereof, and such failure shall
continue for more than thirty (30) days after such failure shall first
become known to any officer of the Company;
(e) Warranties or Representations - any warranty,
representation or other statement by or on behalf of the Company
contained herein or in any certificate or instrument furnished in
compliance with or in reference hereto shall have been false or
misleading in any material respect when made;
(f) Default on Debt or Security -
(i) the Company or any Subsidiary shall fail to make any
payment on any Debt or any Security when due; or
(ii) any event shall occur or any condition shall
exist in respect of any Debt or any Security of the Company or
any Subsidiary, or under any agreement securing or relating to
any such Debt or Security, that immediately or with any one or
more of the passage of time, the giving of notice or the
expiration of waivers or modifications granted in respect of
such event or condition:
(A) causes (or permits any one or more of
the holders thereof or a trustee therefor to cause)
such Debt or Security, or a portion thereof, to
become due prior to its stated maturity or prior to
its regularly scheduled date or dates of payment; or
(B) permits any one or more of the holders
thereof or a trustee therefor to require the Company
or any Subsidiary to repurchase such Debt or Security
from such holder;
provided that the aggregate amount of all obligations in
respect of all such Debt and Securities referred to in this
clause (f) exceeds at such time Three Million Dollars
($3,000,000);
(g) Involuntary Bankruptcy Proceedings -
(i) a receiver, liquidator, custodian or trustee of
the Company or any Subsidiary, or of all or any part of the
Property of either, shall be appointed by court order and such
order shall remain in effect for more than thirty (30) days,
or an order for relief shall be entered with respect to the
Company or any Subsidiary, or the Company or any Subsidiary
shall be adjudicated bankrupt or insolvent;
(ii) any of the Property of the Company or any
Subsidiary shall be sequestered by court order and such order
shall remain in effect for more than thirty (30) days; or
(iii) a petition shall be filed against the Company
or any 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;
(h) Voluntary Petitions - the Company or any 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;
(i) Assignments for Benefit of Creditors, etc. - the Company
or any Subsidiary shall make an assignment for the benefit of its
creditors, or shall admit in writing its inability, or shall fail, 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 any
Subsidiary or of all or any part of the Property of either; or
(j) Undischarged Final Judgments - a final judgment or final
judgments for the payment of money aggregating in excess of Three
Million Dollars ($3,000,000) shall be outstanding against any 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 an Event of Default specified in clause (g),
clause (h) or clause (i) of Section 8.1 shall exist, all of
the Notes at the time outstanding shall automatically become
immediately due and payable, together with interest accrued
thereon and the Make-Whole Amount at such time with respect to
such principal amount of such Notes; in each case without
presentment, demand, protest of notice of any kind, all of
which are hereby expressly waived.
(ii) If an Event of Default other than those
specified in clause (g), clause (h) and clause (i) of Section
8.1 shall exist, the holder or holders of at least fifty
percent (50%) in principal amount of the Notes then
outstanding (exclusive of Notes then owned by any one or more
of the Company, any Subsidiary or any Affiliate) may exercise
any right, power or remedy permitted to such holder or 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,
immediately 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 immediately 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 applicable law, the Make-Whole Amount on
the date of such declaration 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), and
irrespective of whether the Notes then outstanding shall have been
declared to be due and payable pursuant to Section 8.2(a)(ii), any
holder of Notes that shall have not consented to any waiver with
respect to such Event of Default may, at such holder's option, by
notice in writing to the Company, declare the Notes then held by such
holder to be, and such Notes shall thereupon become, immediately 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 immediately pay to
such holder the entire principal of interest accrued on such Notes and,
to the extent permitted by applicable 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)
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).
(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, or if there shall be a controversy or
potential controversy between the Company and one or more holders of
Notes as to any of the provisions of this Agreement or the Notes, the
Company shall pay to each holder of Notes, to the extent permitted by
applicable law, such further amounts as shall be sufficient to cover
the costs and expenses (including, without limitation, reasonable
attorneys' fees) incurred by each 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), then and in
every such case, the holders of at least fifty-one percent (51%) in aggregate
principal amount of the Notes then outstanding (exclusive of Notes then owned by
any one or more of the Company, any Subsidiaries and any Affiliates) may, by
written instrument filed with the Company, 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 that shall have become due
and payable by reason of such declaration under Section 8.2(a)(ii))
shall have been duly paid; and
(c) each and every other Default and Event of Default shall
have been waived pursuant to Section 10.5 or otherwise made good or
cured;
and provided further that no such rescission and annulment shall extend to or
affect any subsequent Default or Event of Default or impair any right consequent
thereon.
9. INTERPRETATION OF THIS AGREEMENT
9.1. Terms Defined.
As used herein, the following terms have the respective meanings set
forth below or set forth in the Section hereof following such term:
Acceptable Consideration - means with respect to any Transfer
of any Property of the Company or a Subsidiary, cash consideration,
promissory notes or such other consideration (or any combination of the
foregoing) received by such Person in connection with such Transfer as
is, in each case, determined by the Board of Directors, in its good
faith opinion, to be in the best interests of the Company and to
reflect the Fair Market Value of such Property. It is understood that
the Company's or such Subsidiary's acceptance of any such consideration
in connection with such Transfer will constitute an investment and may,
depending upon the form of such consideration, constitute a Restricted
Investment made by the Company or such Subsidiary.
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 - means this agreement, as it may be amended and restated
from time to time.
Applicable Minimum Denomination - means, at any time, with respect to
any Note, the product of:
(a) Five Million Dollars ($5,000,000), multiplied by
(b) the quotient of
(1) the aggregate principal amount of Notes outstanding at
such time, divided by
(2) Sixty Million Dollars ($60,000,000);
provided that:
(A) If such Note was issued on the Closing Date in an original
principal amount less than Five Million Dollars ($5,000,000) or if such
Note was issued in exchange for a Note that was issued on the Closing
Date in an original principal amount less than Five Million Dollars
($5,000,000) (or was issued as a result of any number of successive
exchanges of Notes referred to in this clause (A)), then in determining
the Applicable Minimum Denomination with respect to such Note there
shall be substituted in clause (a) of this definition, in place of
"Five Million Dollars ($5,000,000)," the original principal amount of
such Note issued on the Closing Date in such original principal amount
less than Five Million Dollars ($5,000,000); and
(B) If two or more Notes are held or are proposed to be held
by a single Person, and/or by two or more Persons that are Investor
Affiliates of one another, then the Applicable Minimum Denomination
with respect to each of such Notes shall be One Million Dollars
($1,000,000) (except as may be necessary to reflect any principal
amount not evenly divisible by One Million Dollars ($1,000,000)).
Board of Directors - means the board of directors of the Company or any
committee thereof that, in the instance, shall have the lawful power to exercise
the power and authority of such board of directors.
Business Day - means, at any time, 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 Expenditures - means the costs of acquisition or construction
of any asset that at the time of acquisition or construction has an expected
economic useful life of more than one (1) year, and would be shown on a balance
sheet (or on a statement of financial condition) of the acquiring or
constructing Person as an asset.
Capital Lease - means, at any time, a lease with respect to which the
lessee is required by GAAP to recognize the acquisition of an asset and the
incurrence of a liability at such time.
Closing - Section 1.2.
Closing Date - Section 1.2.
Company - introductory paragraph hereof.
Consolidated Assets - means, at any time, the amount at which the
assets of the Company and the Subsidiaries would be shown on a consolidated
balance sheet (or on a consolidated statement of financial condition) of such
Persons at such time after deduction of depreciation, amortization and all other
properly deductible valuation reserves.
Consolidated Capitalization - means, at any time, the sum of
(a) Consolidated Net Worth, plus
(b) Consolidated Funded Debt,
in each case determined at such time.
Consolidated Debt - means, at any time, the aggregate amount of Debt of
the Company and the Subsidiaries, determined at such time after eliminating
intercompany transactions among the Company and the Subsidiaries.
Consolidated Fixed Charges - means, for any period, the sum of
(a) Consolidated Interest Expense for such period, plus
(b) the amount payable in respect of such period with respect
to Operating Rentals payable by the Company and the Subsidiaries,
determined after eliminating intercompany transactions among the
Company and the Subsidiaries.
Consolidated Funded Debt - means, at any time, the aggregate amount of
Funded Debt of the Company and the Subsidiaries, determined at such time after
eliminating intercompany transactions among the Company and the Subsidiaries.
Consolidated Interest Expense - means, for any period, the amount of
interest accrued or capitalized on, or with respect to, Consolidated Debt for
such period, including, without limitation, amortization of debt discount,
imputed interest on Capital Leases and interest on the Notes.
Consolidated Net Income - means, for any period, net earnings (or loss)
after income taxes of the Company and the Subsidiaries, determined on a
consolidated basis for such Persons, but excluding:
(a) net earnings (or loss) of any Subsidiary accrued prior
to the date it became a Subsidiary;
(b) any gain or loss (net of tax effects applicable thereto)
resulting from the sale, conversion or other disposition of
capital assets other than in the ordinary course of business;
(c) any extraordinary, unusual or nonrecurring gains or
losses;
(d) any gain arising from any reappraisal or write-up of
assets;
(e) any portion of the net earnings of any Subsidiary that for
any reason is unavailable for payment of dividends to the Company or a
Subsidiary;
(f) any gain or loss (net of tax effects applicable thereto)
during such period resulting from the receipt of any proceeds of any
insurance policy;
(g) any earnings of any Person acquired by the Company or any
Subsidiary through purchase, merger or consolidation or otherwise, or
earnings of any Person substantially all of whose assets have been
acquired by the Company or any Subsidiary, for any period prior to the
date of acquisition, provided that the earnings referred to in this
clause (g) shall not be excluded in determining Consolidated Net Income
for purposes of clause (a) of the definition of Consolidated Operating
Cash Flow;
(h) net earnings of any Person (other than a Subsidiary) in
which the Company or any Subsidiary shall have an ownership interest
unless such net earnings shall have actually been received by the
Company or such Subsidiary in the form of cash distributions; and
(i) any restoration during such period to income of any
contingency reserve, except to the extent that provision for such
reserve was made during such period out of income accrued during such
period.
Consolidated Net Income Before Amortization - means, for any
period, the sum of
(a) Consolidated Net Income for such period, plus
(b) the aggregate amount of amortization of intangibles (to
the extent, and only to the extent, that such aggregate amount was
deducted in the computation of Consolidated Net Income for such
period).
Consolidated Net Worth - means, at any time, total shareholders' equity
as would be shown on a consolidated balance sheet (or on a consolidated
statement of financial condition) of the Company and the Subsidiaries at such
time.
Consolidated Operating Cash Flow - means, for any period, the sum of:
(a) Consolidated Net Income for such period, plus
(b) the aggregate amount of:
(i) Consolidated Fixed Charges, and
(ii) income taxes, depreciation and amortization
(to the extent, and only to the extent, that such aggregate amount was
deducted in the computation of Consolidated Net Income for such
period). Consolidated Operating Cash Flow shall be adjusted
retroactively on a pro forma basis to give effect to the net income (as
determined in the same manner as Consolidated Net Income hereunder)
attributable to any Person acquired or disposed of by the Company or
any Subsidiary.
Debt - means, with respect to any Person, without duplication:
(a) its liabilities for borrowed money (whether or not
evidenced by a Security);
(b) any liabilities secured by any Lien existing on Property
owned by such Person (whether or not such liabilities have been
assumed);
(c) its liabilities in respect of Capital Leases;
(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 eight percent (8%) per annum;
and
(e) its Guaranties of any liabilities of another Person
constituting liabilities of a type set forth above.
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.
DOL - means the Department of Labor and any successor agency.
Dollars or $ - means United States of America dollars.
Environmental Protection Laws - means any federal, state, county,
regional or local law, statute or regulation (including, without limitation,
CERCLA, RCRA and SARA) enacted 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
Substances, and any regulations issued or promulgated in connection with such
statutes by any Governmental Authority, and any orders, decrees or judgments
issued by any court of competent jurisdiction in connection with any of the
foregoing.
As used in this definition:
CERCLA - means the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended from time to time
(by SARA or otherwise), and all rules and regulations promulgated in
connection therewith.
RCRA - means the Resource Conservation and Recovery Act of
1976, as amended from time to time, and all rules and regulations
promulgated in connection therewith.
SARA - means the Superfund Amendments and Reauthorization Act
of 1986, as amended from time to time, and all rules and regulations
promulgated in connection therewith.
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:
(a) is a member of the same controlled group of corporations
(within the meaning of section 414(b) of the IRC) as the Company;
or
(b) is under common control (within the meaning of section
414(c) of the IRC) with the Company.
Event of Default - Section 8.1.
Exchange Act - means the Securities Exchange Act of 1934, as amended.
Excluded Transfers - Section 6.5.
Fair Market Value - means, at any time, 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 of determination, with respect to any
Person, all Debt of such person that is expressed to mature more than one (1)
year from the date of the creation thereof or that is extendible or renewable at
the option of such Person to a time more than one (1) year after the date of the
creation thereof (whether or not at such time of determination such Debt is
payable within one (1) year).
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 (y) in which the Company
or any Subsidiary conducts all or any part of its business of
(z) that asserts jurisdiction over the conduct of the affairs
or Properties 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 the Guarantor guaranteeing or in effect guaranteeing (including, without
limitation, by means of a surety bond, letter of credit or other similar
instrument, whether or not designated as a "guaranty") 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 purpose of payment of such indebtedness or
obligation, or
(ii) to maintain working capital or other balance sheet (or
statement of financial condition) 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. Without limiting the
generality of the foregoing, it is agreed and understood that each general
partner of a partnership shall be deemed to be a Guarantor of all indebtedness
and other obligations of such partnership and such partnership shall be deemed
to be the Primary Obligor in respect of such indebtedness and other obligations.
For purposes of the immediately preceding sentence, a Person shall be deemed to
be a general partner of any so-called "joint venture" or other arrangement
(whether or not constituting a partnership), and such joint venture or other
arrangement shall be deemed to be a partnership, if, pursuant to applicable law,
by contract or otherwise, such Person is liable, directly or indirectly,
contingently or otherwise, either individually or jointly with one or more other
Persons, for the indebtedness or other obligations of such joint venture or
other arrangement.
Hazardous Substances - means any and all pollutants, contaminants,
toxic or hazardous wastes and any other substances that might pose a hazard to
health or safety, the removal of which may be required or the generation,
manufacture, refining, production, processing, treatment, storage, handling,
transportation, transfer, use, disposal, release, discharge, spillage, seepage
or filtration of which is or shall be, in each of the foregoing cases,
restricted, prohibited or penalized by any applicable law.
Institutional Investor - means the Purchasers, any affiliate of any of
the Purchasers, any holder or beneficial owner of Notes that is an "accredited
investor" as defined in section 2(15) of the Securities Act and or a "qualified
institutional buyer" as defined in 17 C.F.R. ss.230.144A, as amended from time
to time.
Investment - means any investment, made in cash or by
delivery of Property, by the Company or any Subsidiary:
(a) in any Person, whether by acquisition of stock,
indebtedness or other obligation or Security, or by loan, Guaranty,
advance, capital contribution or otherwise; or
(b) in any Property.
Investments shall be valued at cost less any net return of capital through the
sale or liquidation thereof or other return of capital thereon.
Investor Affiliate - means, at any time, with respect to any holder or
proposed holder of Notes, any Person that directly or indirectly through one or
more intermediaries Controls, or is Controlled by, or is under common Control
with, such holder or proposed holder.
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 (including, without limitation, the management and policies
of the investment of assets of such Person), whether through the
ownership of voting securities, by contract or otherwise. Without
limitation of the foregoing, any separate account of an insurance
company shall be deemed to be Controlled by such insurance company.
IRC - means the Internal Revenue Code of 1986, together with all rules
and regulations promulgated pursuant thereto, as amended from time to time.
IRS - means the Internal Revenue Service and any successor agency.
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, sale with recourse or a trust receipt, or a lease,
consignment or bailment for security purposes. The term "Lien" includes, without
limitation, reservations, exceptions, encroachments, easements, rights-of-way,
covenants, conditions, restrictions, leases and other title exceptions and
encumbrances affecting real Property and includes, without limitation, 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
shall have acquired or holds 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 is deemed a Lien. The term "Lien" does not include negative
pledge clauses in agreements relating to the borrowing of money.
Make-Whole Amount - means, with respect to any date (a "Prepayment
Date") and any principal amount ("Prepaid Principal") of Notes required for any
reason to be paid prior to the regularly scheduled maturity thereof on such
Prepayment Date, the greater of
(a) Zero Dollars ($0), and
(b) (i) the sum of the present values of the then remaining
scheduled payments of principal and interest that would be payable in
respect of such Prepaid Principal but for such prepayment or
acceleration, minus
(ii) the sum of
(A) the amount of such Prepaid Principal, plus
(B) the amount of interest accrued on such Prepaid
Principal since the scheduled interest payment date
immediately preceding such Prepayment Date.
In determining such present values, a discount rate equal to the Make-Whole
Discount Rate with respect to such Prepayment Date and Prepaid Principal divided
by two (2), and a discount period of six (6) months to thirty (30) days each,
shall be used.
As used in this definition:
Make-Whole Discount Rate - means, with respect to any Prepayment
Date and Prepaid Principal, the sum of
(a) the per annum percentage rate (rounded to the nearest
three (3) decimal places) equal to the (i) yields reported, as of 10:00
A.M. (New York City time) on the second Business Day preceding the
Prepayment Date with respect to such Prepaid Principal on the display
designated as the "USD Screen" on the Bloomberg Financial Market
Service (or such other screen as may replace the USD Screen on
Bloomberg Financial Market Service) for actively traded U.S. Treasury
securities having a maturity equal to the Weighted Average Life to
Maturity of such Prepaid Principal as of such Prepayment Date, or (ii)
if such yields are not reported as of such time or the yields reported
as of such time are not ascertainable, the yield to maturity derived
from the annual yield to maturity of the United States Treasury
obligation listed in the Applicable H.15 as of such Prepayment Date for
the then most recently available day in such Applicable H.15 with a
Treasury Constant Maturity (as defined in such Applicable H.15) equal
to the Weighted Average Life to Maturity of such Prepaid Principal
determined as of such Prepayment Date, plus
(b) forty one-hundredths percent (0.40%) per annum. For
purposes of clause (a) of the preceding sentence, if no United States
Treasury obligation with a Treasury Constant Maturity corresponding
exactly to the Weighted Average Life to Maturity of such Prepaid
Principal is listed, the yields for the two (2) published United States
Treasury obligation 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.
Applicable H.15 - means, at any time, United States Federal
Reserve Statistical Release H.15(519) or its successor publication then
most recently published and available to the public or, if no such
successor publication is 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.
Weighted Average Life to Maturity - means, with respect to any
Prepayment Date and Prepaid Principal, the number of years obtained by
dividing the Remaining Dollar-Years of such Prepaid Principal
determined on such Prepayment Date by such Prepaid Principal.
Remaining Dollar-Years - means, with respect to any Prepayment
Date and Prepaid Principal, the result obtained by
(a) multiplying, in the case of each required payment of
principal (including payment at maturity) that would be payable in
respect of such Prepaid Principal but for such prepayment,
(i) an amount equal to such required payment of principal,
by
(ii) the number of years (calculated to the nearest
one-twelfth (1/12) that will elapse between such Prepayment
Date and the date such required principal payment would be due
if such Prepaid Principal had not be so prepaid, and
(b) calculating the sum of each of the products obtained in
the preceding subsection (a).
Mandatory Principal Amortization Payments - Section 4.1.
Margin Security - means "margin stock" within the meaning of
Regulations T, U and X of the Board of Governors of the Federal Reserve System,
12 C.F.R., Chapter II, as amended from time to time.
Material Adverse Effect - means a material adverse effect on the
business, profits, Properties or condition (financial or otherwise) of the
Company and the Subsidiaries, taken as a whole, or on the ability of the Company
to perform its obligations set forth herein and in the Notes.
Multiemployer Plan - means any "multiemployer plan" (as defined in
section 3 of ERISA) in respect of which the Company or any ERISA Affiliate is an
"employer" (as defined in section 3 of ERISA).
Note Purchase Agreements - Section 1.2.
Notes - Section 1.1.
Offering Memorandum - Section 2.1.
Operating Lease - means, with respect to any Person, any lease other
than a Capital Lease.
Operating Rentals - means all fixed payments that the lessee is required to
make by the terms of any Operating Lease.
OSHA - means the Occupational Safety and Health Act of 1970, together
with all rules, regulations and standards promulgated pursuant thereto, all as
amended from time to time.
PBGC - means the Pension Benefit Guaranty Corporation and any successor
corporation or governmental agency.
Pension Plan - means, at any time, any "employee pension benefit plan"
(as defined in section 3 of ERISA) maintained at such time by the Company or any
ERISA Affiliate for employees of the Company of such ERISA Affiliate, excluding
any Multiemployer Plan.
Person - means an individual, sole proprietorship, partnership,
corporation, trust, joint venture, unincorporated organization, or a government
or agency or political subdivision thereof.
Placement Agent - means William Blair & Company, L.L.C.
Preferred Stock - means any class of capital stock of a corporation
that is preferred over any other class of capital stock of such corporation as
to the payment of dividends or the payment of any amount upon liquidation or
dissolution of such corporation.
Property - means any interest in any kind of property or asset, whether
real, personal or mixed, and whether tangible or intangible.
Purchase Money Lien - means a Lien held by any Person (whether or not
the seller of such Property) on tangible Property (or a group of related items
of Property the substantial portion of which are tangible) acquired or
constructed by the Company or any Subsidiary, which Lien secures all or a
portion of the related purchase price or construction costs of such Property,
provided that such Lien
(a) is created contemporaneously with, or within thirty (30) days
of, such acquisition or construction,
(b) encumbers only Property purchased or constructed after the
Closing Date and acquired with the proceeds of the Debt secured
thereby, and
(c) is not thereafter extended to any other Property.
Purchasers - means the purchasers of the Notes set forth in Annex 1
hereto.
Required Holders - means, at any time, the holders of at least
fifty-one percent (51%) in principal amount of the Notes at any time outstanding
(exclusive of Notes then owned by any one or more of the Company, any Subsidiary
and any Affiliate).
Restricted Investment - means, at any time, all Investments except the
following:
(a) Investments in Property to be used in the ordinary
course of business of the Company and the Subsidiaries;
(b) Investments in current assets arising from the sale of
goods and services in the ordinary course of business of the Company
and the Subsidiaries;
(c) Investments in one or more Subsidiaries or any corporation
that concurrently with such Investment becomes a Subsidiary;
(d) Investments in direct obligations of, or obligations
guarantied by, the United States of America or any agency of the United
States of America the obligations of which agency carry the full faith
and credit of the United States of America, provided that such
obligations mature within one (1) year from the date of acquisition
thereof;
(e) Investments in negotiable certificates of deposit issued
by commercial banks organized under the laws of the United States of
America or any state thereof, having capital, surplus and undivided
profits aggregating at least Two Hundred Fifty Million Dollars
($250,000,000) and the long-term unsecured debt obligations (or the
long-term unsecured debt obligations of the bank holding company owning
all of the capital stock of such bank) of which are rate "A" or higher
by Standard & Poor's Corporation or "A2" or higher by Moody's Investors
Service, provided that such certificates of deposit mature within one
(1) year from the date of acquisition thereof;
(f) Investments in commercial paper rated "A-1" or higher by
Standard & Poor's Corporation or "P-1" or higher by Moody's Investors
Service, provided that such obligations mature within two hundred
seventy (270) days from the date or creation thereof; and
(f) Investments in any obligation of any state of the United
States of America or any municipality thereof rated "BBB" or higher by
Standard & Poor's Corporation or "Baa" or higher by Moody's Investors
Service, provided that such obligations mature within one (1) year from
the date of acquisition thereof.
Restricted Payment - means:
(a) any dividend or other distribution, direct or indirect, on
account of any shares of capital stock of the Company or any Subsidiary
(other than on account of capital stock of a Subsidiary owned legally
and beneficially by the Company or a Wholly-Owned Subsidiary) now or
hereafter outstanding, whether in cash or other Property, except a
dividend or other distribution payable solely in shares of common stock
of such Person; and
(b) any redemption, retirement, purchase or other acquisition,
direct or indirect, of any shares of capital stock of the Company or
any Subsidiary (other than on account of capital stock of a Subsidiary
owned legally and beneficially by the Company or a Wholly-Owned
Subsidiary) now or hereafter outstanding, or of any warrants, rights or
options to acquire any shares of such stock.
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, the
principal accounting officer, the controller or the treasurer of the Company.
Senior Officer - means the chief executive officer, the president or the
chief financial officer of the Company.
Subsidiary - means, at any time, a corporation of which the Company
owns, directly or indirectly, more than fifty percent (50%) (by number of votes)
of each class of the Voting Stock at such time.
Subsidiary Stock - Section 6.5.
Surviving Corporation - Section 6.6.
Total Subsidiary Debt - means, at any time, without duplication, the
aggregate amount of Debt and Preferred Stock of the Subsidiaries, determined at
such time after eliminating intercompany transactions among the Company and the
Subsidiaries.
Transfers - Section 6.5.
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 elect corporate directors (or Persons performing
similar functions).
Wholly-Owned Subsidiary - means, at any time, any Subsidiary one
hundred percent (100%) of all of the equity Securities (except directors'
qualifying shares) and voting Securities of which are owned by, and all of the
Debt of which is held by, any one or more of the Company and the other
Wholly-Owned Subsidiaries at such time.
9.2. GAAP.
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, unless otherwise
specified, be done in accordance with GAAP, 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.
9.3. Directly or Indirectly.
Where any provision herein refers to action to be taken by any Person,
or that 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 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. Unless
otherwise specified, references to Sections are to Sections of this
Agreement, references to Annexes are to Annexes to this Agreement and
references to Exhibits are to Exhibit to this Agreement.
(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 ILLINOIS LAW.
10. MISCELLANEOUS
10.1. Communications.
(a) Method; Address. All communications hereunder or under the
Notes shall be in writing, shall be (y) hand delivered or deposited
into the United States mail (registered or certified mail), postage
prepaid and (z) sent by overnight courier or by facsimile transmission,
and shall be addressed,
(i) if to the Company,
Littelfuse, Inc.
800 East Northwest Highway
Des Plaines, Illinois 60016
Attention: Chief Financial Officer
Facsimile: (847) 824-3864
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, and
further including any parties referred to on Annex 1
that 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 6.13,
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 so addressed and deposited
in the United States mail, postage prepaid, by registered or certified
mail (in each case, with return receipt requested) shall be deemed to
be received on the third (3rd) succeeding Business Day after the day of
such deposit (not including the date of such deposit). Any
communication so addressed and otherwise delivered shall be deemed to
be received when actually received at the address of the addressee.
(c) Certificates, etc. Whenever under this Agreement any
certificate or other writing is given by any director, officer or
employee of the Company or any Subsidiary, such certificate of other
writing shall be delivered by such director, officer or employee on
behalf of the Company or such Subsidiary in his or her capacity as such
director, officer or employee, and not in his or her individual
capacity.
10.2. 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 10.2 shall
prohibit the Company or any holder of Notes from contesting the validity or the
accuracy of any such reproduction.
10.3. 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.
10.4. 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.
10.5. 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 4, 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, 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 Section 8,
(iii) amend the definition of Required Holders, or
(iv) amend this Section 10.5.
(b) Solicitation of Noteholders.
(i) Solicitation. The Company shall not solicit,
request or negotiate for or with respect to any proposed
waiver or amendment of any of the provisions hereof or the
Notes unless 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 it to make an
informed decision with respect thereto. Executed or true and
correct copies of any waiver or consent effected pursuant to
the provisions of this Section 10.5 shall be delivered by the
Company to each holder of outstanding Notes immediately
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 10.5 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
10.5(b)(iii), any amendment or waiver consented to as provided in this
Section 10.5 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 relating to the consideration, negotiation, preparation or
execution of any amendments, waivers or consents pursuant to the
provisions hereof (except that the Company shall not be required to pay
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.
10.6. 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 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.
(b) Payments Due on Holidays. If any payment due on, or with
respect to, any Notes shall fall due on a day other than a Business
Day, then such payment shall be made on the first (1st) 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 (1st)
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).
10.7. Entire Agreement; Severability.
This Agreement constitutes the final written expression of all of the
terms hereof and is a complete and exclusive statement of those terms. In case
any one or more of the provisions contained in this Agreement or in any Note, or
any application thereof, shall be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein and therein, and any other application thereof, shall not in
any way be affected or impaired thereby.
10.8. Duplicate Originals, Execution in Counterpart.
Two (2) 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,
LITTELFUSE, INC.
By: _________________________
Name: _________________________
Title: _________________________
The foregoing is agreed to as of the date hereof.
PRINCIPAL LIFE INSURANCE COMPANY
By: ___________________________________
Name:
Title:
NATIONWIDE LIFE INSURANCE COMPANY
By: ___________________________________
Name:
Title:
AMERICAN FAMILY LIFE INSURANCE COMPANY
By: ___________________________________
Name:
Title:
TMG LIFE INSURANCE COMPANY
By: ___________________________________
Name:
Title:
By: ___________________________________
Name:
Title:
BENEFICIAL LIFE INSURANCE COMPANY
By: ___________________________________
Name:
Title:
ANNEX 1
ANNEX 1
INFORMATION AS TO PURCHASERS
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
PRINCIPAL LIFE INSURANCE COMPANY $26,900,000 (general account note)
711 High Street $1,500,000 (general account note)
Des Moines, IA 50392-0800 $4,600,000 (separate account note)
Attention: Investment Department -
Securities Division
Ref: Bond No. 61760
All notices with respect to the Notes, except with respect to payment, should be
sent to the address above.
All notices with respect to payments on the Notes should be sent to:
Principal Life Insurance Company
711 High Street
Des Moines, IA 50392-0960
Attention: Investment Accounting - Securities
[Telefacsimile: (515) 248-2643
Confirmation: (515) 247-0689]
Ref: Bond No. 61760
All payments with respect to the two general account Notes are to be made by a
wire transfer of immediately available funds to:
Norwest Bank Iowa, N.A.
7th & Walnut Streets
Des Moines, IA 50309
ABA No.: 073 000 228
For credit to Principal Life Insurance Company,
Account No.014752, Reference:
OBI PFGSE(S)B0061760()
Tax Identification Number: 42-0127290
All payments with respect to the separate account Note are to be made by a wire
transfer of immediately available funds to:
Norwest Bank Iowa, N.A.
7th & Walnut Streets
Des Moines, IA 50309
ABA No.: 073 000 228
For credit to Principal Life Insurance Company,
Separate Account No.032395, Reference:
OBI PFGSE(S)B0061760()
Tax Identification Number: 42-0127290
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
NATIONWIDE LIFE INSURANCE $13,000,000
COMPANY
One Nationwide Plaza
Columbus, Ohio 43215-2220
Send notices and communications to:
Nationwide Life Insurance Company
One Nationwide Plaza (1-33-07)
Columbus, Ohio 43215-2220
Attention: Corporate Fixed-Income Securities
Wiring Instructions:
The Bank of New York
ABA #021-000-018
BNF: IOC566
F/A/O Nationwide Life Insurance Company
Attn: P & I Department
PPN# 537008 B * 4
Security Description: Littelfuse, Inc.
6.16% Senior Notes due
September 1, 2005
All notices of payment on or in respect to the security should be sent
to:
Nationwide Life Insurance Company
c/o The Bank of New York
PO Box 19266
Attn: P & I Department
Newark, NJ 07195
With a copy to:
Nationwide Life Insurance Company
Attn: Investment Accounting
One Nationwide Plaza (1-32-05)
Columbus, Ohio 43215-2220
The original note should be registered in the name of Nationwide Life
Insurance Company and delivered to:
The Bank of New York
One Wall Street
3rd Floor - Window A
New York, NY 10286
F/A/O Nationwide Life Insurance Co. Acct. #267829
Tax ID #31-4156830
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
AMERICAN FAMILY LIFE INSURANCE $6,000,000
COMPANY
600 American Parkway
Madison, WI 53783-0001
Attn: Investment Division - Private Placements
Number of Notes/Denominations:
$6,000,000
Payments:
All Payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds. Each such wire transfer shall set
forth the name of the Company, the full title (including the coupon rate and
final maturity date) of the Notes, and the due date and application among
principal and interest of the payment being made. Payment shall be made to:
Firstar Bank Milwaukee, N.A.
Account of Firstar Trust Company
ABA #075000022
For Credit To Account #112-950-027
Trust Account #000018012500 for Life Portfolio
Attn: Accounting Department
Notices:
All notices and communications, including notices with respect to
payments and written confirmation of such payment as well as quarterly
and annual financial statements, be addressed as first provided above.
Nominee Name in which Notes are to be registered:
BAND & Co.
Delivery of Notes:
Send special delivery by overnight carrier to:
Firstar Bank of Madison
1 South Pinckney Street
Madison, WI 53703
Attn: Business Custody
In addition, a specimen copy of each Note should be sent to American Family Life
Insurance Company as
addressed above.
Tax ID #39-6040365
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
TMG LIFE INSURANCE COMPANY $5,000,000 c/o The Mutual Group (U.S.), Inc.
401 North Executive Drive, Suite 300
Brookfield, WI 53008-0503
Attention: Connie Keller
Phone: (414) 641-4022
Facsimile: (414) 641-4055
All payments on account of the Notes shall be made by wire or intrabank transfer
of immediately available funds to:
Norwest Bank Minnesota, N.A.
ABA# 091000019
BNF: A/C: 0840245
BNF: Trust Clearing Account
REF: ATTN: Income Collections
TRUST ACCOUNT: 13075700
Littelfuse, Inc. PPN: 537008 B * 4
All notices in respect of payment shall be delivered to:
TMG Life Insurance Company
c/o The Mutual Group (U.S.), Inc.
Attn: Tamie Greenwood
401 North Executive Drive, Suite 300
Brookfield, WI 53008-0503
Telephone: (414) 641-4027
Facsimile: (414) 641-4055
All other communications shall be delivered to:
TMG Life Insurance Company
c/o The Mutual Group (U.S.), Inc.
401 North Executive Drive, Suite 300
Brookfield, WI 53008-0503
Telephone: (414) 641-4027
Facsimile: (414) 641-4055
Name of Nominee in which Notes are to be issued: TMG Life Insurance Company
Taxpayer I.D. Number: #45-0208990
Please Note:TMG Life Insurance Company requires TWO signatures on all
signature pages.
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
BENEFICIAL LIFE INSURANCE $3,000,000
COMPANY
INSTITUTION OR INSTITUTIONAL ADVISOR ACCOUNT SET UP INFORMATION
Address Beneficial Life Insurance Co/BLIC
Attn: Ken Steiner
36 S. State
Salt Lake City, UT 84316
Investment Advisor/Phone Bruce Cundick (801) 933-1279
Sterling Russell (801) 933-1239
Mark Siddoway (801) 933-1238
Investment Advisor Operations Officer/Phone Ken Steiner (801) 933-1291
Susan Denton (801) 933-1279
Investment Advisor Fax Copies Phone Kathy Grange (801) 531-3315
SETTLEMENT INSTRUCTIONS
1. Delivery instructions for Depository Eligible Settle at Depository Trust Company of New York (DTC-NY)
Securities settling in Next Day Funds (See Security Trade Coding below for details)
2. Delivery Instructions for Depository Eligible Same as #1 above
Securities settling in Same Day Funds
3. Delivery Instructions for Securities settling thru Zions First National Bank - Salt Lake City
Fed Book Entry System. Fed Wire #1240-0005-4
Zions SLC/CUST For the Account of Deseret Trust Co.
(801) 524-4640
4. Delivery Instructions for Securities settling at Deliver to PTC for ZDES
Participants Trust Company (PTC) Confirm with Deseret Trust Co. - Annette/Irene
(801) 363-2992
5. Delivery Instructions for Securities not Eligible for United Missouri Trust
Company of New York Settlement at Depository Trust Company, New York or One
Battery Park Plaza, 8th Floor thru Fed Book Entry System New York, NY 10004
(212) 968-1990
for the account of Zions First National Bank
Account #69-0180-00-5
Contact at Deseret Trust Company for Security Settlements Annette Rohovit, Irene Hester, Vicki Rows
Deseret Trust Company's Fax Copies Phone # (801) 363-2995
INSTITUTION(S) FOR WHICH INVESTMENT ADVISORS ACT(S)
SECURITY TRADE CODING INFORMATION FOR BROKERS
Institution Name Deseret Trust Company
Investment Advisor Institution ID # 25782
Agent Bank Name Deseret Trust Company
Agent Bank ID# 25782
Agent Bank's DTC Participant Clearing # 0958
Agent Bank Internal # for Account 245501028 BLIC -General to be give by Trader to Broker
245500202 BLIC - Gen. EQ
245500210 BLIC - Val EQ
245501010 BLIC - Pledged
245501044 BLIC - Tot Ret Fixed
BROKER ACCOUNT STATEMENTS Deseret Trust Company (copy 1) Beneficial Life Insurance Co.
- -------------------------
(copy 2)
c/o Harvey S. Glade c/o Ken Steiner
P.O. Box 11558 36 S. State St.
SLC, UT 84147 Salt Lake City, UT 84136
TAX ID # FOR INSTITUTIONS FOR WHICH ADVISORS 87-0115120
ACT(S)
ANNEX 1
ANNEX 2
ANNEX 2
PAYMENT INSTRUCTIONS AT CLOSING
Wire transfer instructions for purchasers of Littelfuse, Inc. Senior Notes:
Bank: First National Bank of Chicago
One First National Plaza
Chicago, IL 60670-0685
ABA#: 071000013
Account Name: Littelfuse, Inc.
Account #: 52-64626
Littelfuse, Inc. Contact: Linda Bartuch
(847) 391-0362
ANNEX 3
INFORMATION AS TO COMPANY
EXHIBIT B-2
EXHIBIT A
[FORM OF NOTE]
LITTELFUSE, INC.
6.16% Senior Note due September 1, 2005
No. R-___
$____________________ [Date]
PPN:
LITTELFUSE, INC., a Delaware corporation (the "Company"), for value
received, hereby promises to pay to ___________ or registered assigns the
principal sum of _____________________ DOLLARS ($__________________) on
September 1, 2005 and to pay interest (computed on the basis of a 360-day year
of twelve 30-day months) on the unpaid principal balance thereof from the date
of this Note at the rate of six and sixteen one-hundredths percent (6.16%) per
annum, quarterly on the first day of each March, June, September and December in
each year, commencing on December 1, 1998, until the principal amount hereof
shall become due and payable; and to pay on demand interest on any overdue
principal (including any overdue prepayment of principal) and Make-Whole Amount,
if any, and (to the extent permitted by applicable law) on any overdue
installment of interest, at a rate equal to the lesser of (a) the highest rate
allowed by applicable law and (b) eight and sixteen one-hundredths percent
(8.16%) per annum.
Payments of principal, Make-Whole Amount, if any, and interest shall be
made in such coin or currency of the United States of America as at the time of
payment is legal tender for the payment of public and private debts to the
registered holder hereof at the address shown in the register maintained by the
Company for such purpose, in the manner provided in the Note Purchase Agreement
(defined below).
This Note is one of an issue of Notes of the Company issued in an
aggregate principal amount limited to Sixty Million Dollars ($60,000,000)
pursuant to the Company's Note Purchase Agreement, dated as of September 1,
1998, (the "Note Purchase Agreement"), with the purchasers listed on Annex 1
thereto. This Note is entitled to the benefits of the Note Purchase Agreement
and the terms thereof are incorporated herein by reference. Capitalized terms
used herein and not otherwise defined herein have the meanings specified in the
Note Purchase Agreement. As provided in the Note Purchase Agreement, this Note
is subject to prepayment, in whole or in part, in certain cases without a
Make-Whole Amount and in other cases with a Make-Whole Amount. The Company
agrees to make required prepayments on account of such Notes in accordance with
the provisions of the Note Purchase Agreement.
This Note is a registered Note and is transferable only by surrender
thereof at the principal office of the Company as specified in the Note Purchase
Agreement, duly endorsed or accompanied by a written instrument of transfer duly
executed by the registered holder of this Note or its attorney duly authorized
in writing.
Under certain circumstances, as specified in the Note Purchase
Agreement, the principal of this Note (in certain cases together with any
applicable Make-Whole Amount) may be declared due and payable in the manner and
with the effect provided in the Note Purchase Agreement.
THIS NOTE AND THE NOTE PURCHASE AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, INTERNAL ILLINOIS LAW.
LITTELFUSE, INC.
By ________________________
Name:
Title:
September 1, 1998
Page 3
EXHIBIT B-2
FORM OF PURCHASERS' SPECIAL COUNSEL CLOSING OPINION
September 1, 1998
To Each of the Purchasers
Listed on Schedule I hereto
Ladies and Gentlemen:
We have acted as your special counsel in connection with the execution
and delivery of the Agreement (as hereinafter defined) and your purchase on the
date hereof of $60,000,000 aggregate principal amount of 6.16% Senior Notes due
September 1, 2005 (the "Notes") of Littelfuse, Inc., a corporation organized
under the laws of Delaware (the "Company"), pursuant to a Note Purchase
Agreement, dated as of September 1, 1998, entered into by the Company and you
(the "Agreement").
This opinion is being delivered to you pursuant to Section 3.1(b) of
the Agreement. Capitalized terms used but not otherwise defined herein shall
have the same meanings ascribed to them in the Agreement.
We have examined such certificates of public officials and officers of
the Company, documents, corporate records, statutes, rules and regulations, and
we have considered such other questions of law as we have deemed necessary or
appropriate for purposes of this opinion. As to facts material to our opinion,
we have relied, without independent verification, upon the representations of
the Company contained in the Agreement and information contained in the
Company's certificates delivered in connection with the execution and delivery
of the Agreement and the issuance of the Notes. We have assumed the genuineness
and completeness of all signatures, the authenticity of all documents submitted
to us as originals, and the conformity to originals of all documents submitted
to us as copies.
Based on the foregoing, and subject to the qualifications set forth
herein and the last paragraphs hereof, we are of the opinion that:
1. The Company is a corporation validly existing in good standing under
the General Corporation Law of the State of Delaware, with the corporate power
to enter into and perform the Agreement and to issue and sell the Notes.
2. The Agreement has been duly authorized by proper corporate action on
the part of the Company, has been duly executed and delivered by an authorized
officer of the Company and constitutes the legal, valid and binding agreement of
the Company, enforceable in accordance with its terms, except to the extent that
enforcement of the Agreement may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws of general application
relating to or affecting the enforcement of the rights of creditors or by
equitable principles, regardless of whether enforcement is sought in a
proceeding in equity or at law.
3. The Notes have been duly authorized by proper corporate action on
the part of the Company, have been duly executed and delivered by an authorized
officer of the Company and constitute the legal, valid and binding obligations
of the Company, enforceable in accordance with their terms, except to the extent
that enforcement of the Notes may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws of general application
relating to or affecting the enforcement of the rights of creditors or by
equitable principles, regardless of whether enforcement is sought in a
proceeding in equity or at law.
4. Based upon the representations set forth in the Agreement, the
offering, sale and delivery of the Notes do not require the registration of the
Notes under the Securities Act of 1933, as amended, nor the qualification of an
indenture under the Trust Indenture Act of 1939, as amended.
5. The compliance with the terms and provisions of the Agreement will
not conflict with or result in any breach of any of the provisions of the
Certificate of Incorporation or By-Laws of the Company.
The opinion of Chapman and Cutler, special counsel to the Company,
dated the date hereof and delivered to you pursuant to Section 3.1(a) of the
Agreement, is satisfactory in form and scope to us.
We are admitted to practice in the State of Illinois and express no
opinion with respect to, or as to the effect or applicability of, any laws other
than the laws of the State of Illinois, the General Corporation Law of the State
of Delaware and the federal laws of the United States.
This opinion is rendered as of the date hereof. We assume no
responsibility for updating this opinion to take into account any event, action,
interpretation or change of law occurring subsequent to the date hereof that may
affect the validity of any of the opinions expressed herein.
This opinion is delivered to you solely for your benefit and may not be
furnished to, quoted or relied upon by any other person other than subsequent
purchasers or transferees of the Notes; provided, however that this opinion may
be disclosed (i) to your agents and employees, (ii) in connection with the
enforcement of obligations of the Company under the Notes and the Agreement,
(iii) in response to a subpoena or other legal process, (iv) as otherwise
required by applicable law or regulations; or (v) in connection with the sale or
transfer of the Notes.
Very truly yours,
SCHEDULE I
Principal Life Insurance Company
Nationwide Life Insurance Company
American Family Life Insurance Company
TMG Life Insurance Company
Beneficial Life Insurance Company