GLOBE BUSINESS RESOURCES, INC.
$30,000,000 Principal Amount
7.54% Senior Notes due September 1, 2007
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NOTE PURCHASE AGREEMENT
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Dated as of September 1, 1997
PPN: 379395 A* 7
TABLE OF CONTENTS
Page
1. AUTHORIZATION OF NOTES...............................................1
2. SALE AND PURCHASE OF NOTES...........................................1
3. CLOSING..............................................................2
4. CONDITIONS TO CLOSING................................................2
4.1. Representations and Warranties................................2
4.2. Performance; No Default.......................................2
4.3. Compliance Certificates.......................................2
4.4. Opinions of Counsel...........................................3
4.5. Purchase Permitted By Applicable Law, etc.....................3
4.6. Sale of Other Notes...........................................3
4.7. Payment of Special Counsel Fees...............................3
4.8. Private Placement Number......................................4
4.9. Changes in Corporate Structure................................4
4.10. Proceedings and Documents.....................................4
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY........................4
5.1. Organization; Power and Authority.............................4
5.2. Authorization, etc............................................4
5.3. Disclosure....................................................5
5.4. Organization and Ownership of Shares of Subsidiaries..........5
5.5. Financial Statements..........................................6
5.6. Compliance with Laws, Other Instruments, etc..................6
5.7. Governmental Authorizations, etc..............................6
5.8. Litigation; Observance of Statutes and Orders.................6
5.9. Taxes.........................................................7
5.10. Title to Property; Leases.....................................7
5.11. Licenses, Permits, etc........................................7
5.12. Compliance with ERISA.........................................7
5.13. Private Offering by the Company...............................8
5.14. Use of Proceeds; Margin Regulations...........................8
5.15. Existing Debt.................................................9
5.16. Foreign Assets Control Regulations, etc.......................9
5.17. Status under Certain Statutes.................................9
6. REPRESENTATIONS OF THE PURCHASER.....................................9
6.1. Purchase for Investment.......................................9
6.2. Source of Funds..............................................10
7. INFORMATION AS TO COMPANY...........................................11
7.1. Financial and Business Information...........................11
7.2. Officer's Certificate........................................13
7.3. Inspection...................................................14
8. PREPAYMENT OF THE NOTES.............................................15
8.1. Required Prepayments.........................................15
8.2. Optional Prepayments with Make-Whole Amount..................15
8.3. Allocation of Partial Prepayments............................15
8.4. Maturity; Surrender, etc.....................................16
8.5. Purchase of Notes............................................16
8.6. Make-Whole Amount............................................16
9. AFFIRMATIVE COVENANTS...............................................18
9.1. Compliance with Law..........................................18
9.2. Insurance....................................................18
9.3. Maintenance of Properties....................................18
9.4. Payment of Taxes.............................................18
9.5. Corporate Existence, etc.....................................19
10. NEGATIVE COVENANTS..................................................19
10.1. Transactions with Affiliates.................................19
10.2. Merger, Consolidation, etc...................................19
10.3. Consolidated Net Worth.......................................20
10.4. Debt.........................................................21
10.5. Current Ratio................................................21
10.6. Fixed Charge Coverage Ratio..................................21
10.7. Liens........................................................22
10.8. Sale of Assets...............................................23
10.9. Nature of Business...........................................23
10.10. Pari Passu Position..........................................23
11. EVENTS OF DEFAULT...................................................24
12. REMEDIES ON DEFAULT, ETC............................................25
12.1. Acceleration.................................................25
12.2. Other Remedies...............................................26
12.3. Rescission...................................................26
12.4. No Waivers or Election of Remedies, Expenses, etc............27
13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES.......................27
13.1. Registration of Notes........................................27
13.2. Transfer and Exchange of Notes...............................27
13.3. Replacement of Notes.........................................28
14. PAYMENTS ON NOTES...................................................28
14.1. Place of Payment.............................................28
14.2. Home Office Payment..........................................28
15. EXPENSES, ETC.......................................................29
15.1. Transaction Expenses.........................................29
15.2. Survival.....................................................29
16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE
AGREEMENT...........................................................30
17. AMENDMENT AND WAIVER................................................30
17.1. Requirements.................................................30
17.2. Solicitation of Holders of Notes.............................30
17.3. Binding Effect, etc..........................................31
17.4. Notes held by Company, etc...................................31
18. NOTICES.............................................................31
19. REPRODUCTION OF DOCUMENTS...........................................32
20. CONFIDENTIAL INFORMATION............................................32
21. SUBSTITUTION OF PURCHASER...........................................33
22. MISCELLANEOUS.......................................................34
22.1. Successors and Assigns.......................................34
22.2. Payments Due on Non-Business Days............................34
22.3. Severability.................................................34
22.4. Construction.................................................34
22.5. Counterparts.................................................34
22.6. Governing Law................................................35
SCHEDULE A -- Information Relating To Purchasers
SCHEDULE B -- Defined Terms
SCHEDULE 4.9 -- Changes in Corporate Structure
SCHEDULE 5.4 -- Subsidiaries of the Company and Ownership of Subsidiary
Stocks
SCHEDULE 5.5 -- Financial Statements
SCHEDULE 5.15 -- Existing Debt and Liens
SCHEDULE 10.7 -- Existing Liens
SCHEDULE 13.2 -- Competitors
EXHIBIT 1 -- Form of 7.54% Senior Note due September 1, 2007
EXHIBIT 4.4 -- Forms of Opinions
GLOBE BUSINESS RESOURCES, INC.
The Spectrum Office Towers
11260 Chester Road, Suite 400
Cincinnati, Ohio 45246
7.54% Senior Notes due September 1, 2007
Dated as of September 1, 1997
TO EACH OF THE PURCHASERS LISTED IN
THE ATTACHED SCHEDULE A:
Ladies and Gentlemen:
GLOBE BUSINESS RESOURCES, INC., an Ohio corporation (the
"Company"), agrees with you as follows:
1. AUTHORIZATION OF NOTES.
The Company will authorize the issue and sale of $30,000,000 aggregate
principal amount of its 7.54% Senior Notes due September 1, 2007 (the "Notes",
such term to include any such notes issued in substitution therefor pursuant to
Section 13 of this Agreement). The Notes shall be substantially in the form set
out in Exhibit 1, with such changes therefrom, if any, as may be approved by you
and the Company. Certain capitalized terms used in this Agreement are defined in
Schedule B; references to a "Schedule" or an "Exhibit" are, unless otherwise
specified, to a Schedule or an Exhibit attached to this Agreement.
2. SALE AND PURCHASE OF NOTES.
Subject to the terms and conditions of this Agreement, the Company will
issue and sell to you and you will purchase from the Company, at the Closing
provided for in Section 3, Notes in the principal amount specified opposite your
name in Schedule A at the purchase price of 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.
3. CLOSING.
The sale and purchase of the Notes to be purchased by you and the other
Purchasers shall occur at the offices of Gardner, Carton & Douglas, 321 N. Clark
St., Chicago, Illinois 60610, at 10:00 a.m., Central time, at a closing on
September 1, 1997 (the "Closing"), or on such other Business Day as may be
agreed upon by the Company and the Purchasers. At the Closing the Company will
deliver to you in the form of a single Note (or such greater number of Notes in
denominations of at least $100,000 as you may request) dated the date of the
Closing and registered in your name (or in the name of your nominee), against
delivery by you to the Company or its order of immediately available funds in
the amount of the purchase price therefor by wire transfer of immediately
available funds for the account of the Company at The Fifth Third Bank, Account
Number 711-23737, Account Name: Globe Collection Account, ABA number: 042000314.
If at the Closing the Company shall fail to tender such Notes to you as provided
above in this Section 3, or any of the conditions specified in Section 4 shall
not have been fulfilled to your satisfaction, you shall, at your election, be
relieved of all further obligations under this Agreement, without thereby
waiving any rights you may have by reason of such failure or such
nonfulfillment.
4. CONDITIONS TO CLOSING.
Your obligation to purchase and pay for the respective Notes to be sold
to you at the Closing is subject to the fulfillment to your satisfaction, prior
to or at the Closing, of the following conditions:
4.1. Representations and Warranties.
The representations and warranties of the Company in this Agreement
shall be correct in all material respects (other than representations and
warranties that are subject to a materiality qualifier, which shall be correct
in all respects) when made and at the time of the Closing other than
representations and warranties given as of a certain date, which shall be
correct in all material respects (or correct in all respects, as the case may
be) as of such date.
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4.2. Performance; No Default.
The Company shall have performed and complied with all agreements and
conditions contained in this Agreement required to be performed or complied with
by it prior to or at the Closing and, after giving effect to the issue and sale
of the Notes (and the application of the proceeds thereof as contemplated by
Section 5.14), no Default or Event of Default shall have occurred and be
continuing as of the Closing.
4.3. Compliance Certificates.
(a) Officer's Certificate. The Company shall have delivered to
you an Officer's Certificate, dated the date of the Closing certifying that the
conditions specified in Sections 4.1, 4.2 and 4.9 have been fulfilled and
certifying as to such factual matters as you may have specified pursuant to
Section 4.5.
(b) Secretary's Certificate. The Company shall have delivered to
you a certificate, as to which there shall be no personal (as opposed to
corporate) liability dated the date of the Closing certifying as to the
resolutions attached thereto and other corporate proceedings relating to the
authorization, execution and delivery of the Notes and the Agreement.
4.4. Opinions of Counsel.
You shall have received opinions in form and substance satisfactory to
you, dated the date of the Closing (a) from Keating, Meuthing & Klekamp, P.L.L.,
special counsel for the Company, covering the matters set forth in Exhibit 4.4
and covering such other matters incident to the transactions contemplated hereby
as you or your counsel may reasonably request (and the Company hereby instructs
its counsel to deliver such opinion to you) and (b) from Gardner, Carton &
Douglas, your special counsel in connection with such transactions,
substantially in the form set forth in Exhibit 4.4 and covering such other
matters incident to such transactions as you may reasonably request.
4.5. Purchase Permitted By Applicable Law, etc.
On the date of the Closing, your purchase of the Notes shall (i) be
permitted by the laws and regulations of each jurisdiction to which you are
subject, without recourse to provisions (such as Section 1405(a)(8) of the New
York Insurance Law) permitting limited investments by insurance companies
without restriction as to the character of the particular investment, (ii) not
violate any applicable law or regulation (including, without limitation,
Regulation G, T or X of the Board of Governors of the Federal Reserve System)
and (iii) not subject you to any tax, penalty or liability under or pursuant to
any applicable law or regulation, which law or regulation was not in effect on
the date hereof. If requested by you, you shall have received an Officer's
Certificate certifying as to such matters of fact as you may reasonably specify
to enable you to determine whether such purchase is so permitted.
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4.6. Sale of Other Notes.
Contemporaneously with the Closing the Company shall sell to the
other Purchasers and the other Purchasers shall purchase the Notes to be
purchased by them as specified in Schedule A.
4.7. Payment of Special Counsel Fees.
Without limiting the provisions of Section 15.1, the Company shall have
paid on or before the Closing the reasonable fees, charges and disbursements of
your special counsel referred to in Section 4.4 to the extent reflected in a
statement of such counsel rendered to the Company at least one Business Day
prior to such Closing.
4.8. Private Placement Number.
A Private Placement number issued by Standard & Poor's CUSIP Service
Bureau (in cooperation with the Securities Valuation Office of the National
Association of Insurance Commissioners) shall have been obtained for the Notes
by your special counsel or the placement agent.
4.9. Changes in Corporate Structure.
Except as specified in Schedule 4.9, at any time following the date of
the most recent financial statements referred to in Schedule 5.5, the Company
shall not have changed its jurisdiction of incorporation or been a party to any
merger or consolidation and shall not have succeeded to all or any substantial
part of the liabilities of any other entity.
4.10. Proceedings and Documents.
All corporate and other proceedings in connection with the transactions
contemplated by this Agreement and all documents and instruments incident to
such transactions shall be reasonably satisfactory to you and your special
counsel, and you and your special counsel shall have received all such
counterpart originals or certified or other copies of such documents as you or
they may reasonably request.
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to the Purchasers as of the Closing
that:
5.1. Organization; Power and Authority.
The Company is a corporation organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation, and is duly
qualified as a foreign corporation and is in good standing (or the local law
equivalent) in each jurisdiction in which such qualification is required by law,
other than those jurisdictions as to which the failure to be so qualified or in
good standing (or the local law equivalent) would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. The Company
has the corporate power and authority to own or hold under lease the properties
it purports to own or hold under lease, to transact the business it transacts
and proposes to transact, to execute and deliver this Agreement and the Notes
and to perform the provisions hereof and thereof.
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5.2. Authorization, etc.
This Agreement and the Notes have been duly authorized by all necessary
corporate action on the part of the Company, and this Agreement constitutes, and
upon execution and delivery thereof each Note will constitute, a legal, valid
and binding obligation of the Company enforceable against the Company in
accordance with its terms, except as such enforceability may be limited by (i)
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally and (ii) general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
5.3. Disclosure.
The Company, through its agent, William Blair & Company, L.L.C., has
delivered to you and each other Purchaser a copy of a Placement Memorandum,
dated July 1997 (the "Memorandum"), relating to the transactions contemplated
hereby. With respect to the historical information contained herein and therein,
this Agreement, the Memorandum, the documents, certificates or other writings
furnished to the Purchasers and the financial statements listed in Schedule 5.5,
taken as a whole, do not contain any untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein not
misleading in light of the circumstances under which they were made. With
respect to the projections, forecasts and other forward-looking information
contained in this Agreement, the Memorandum, the documents, certificates or
other writings furnished to the Purchasers and the financial statements listed
in Schedule 5.5, taken as a whole, such projections, forecasts and other
forward-looking information were prepared in good faith based upon reasonable
assumptions by management of the Company and reflect the Company's actual
subjective expectations for its operations and performance for the indicated
periods. Except as disclosed in the Memorandum or as expressly described in one
of the documents, certificates or other writings furnished to the Purchasers, or
in the financial statements listed in Schedule 5.5, since February 28, 1997,
there has been no change in the financial condition, operations, business or
properties of the Company or any of its Subsidiaries except changes that
individually or in the aggregate would not reasonably be expected to have a
Material Adverse Effect.
5.4. Organization and Ownership of Shares of Subsidiaries.
(a) Schedule 5.4 is (except as noted therein) a complete and correct
list of the Company's Subsidiaries, showing, as to each Subsidiary, the correct
name thereof, the jurisdiction of its organization, whether such Subsidiary is a
Restricted Subsidiary, and the percentage of shares of each class of its capital
stock or similar equity interests outstanding owned by the Company and each
other Subsidiary.
(b) All of the outstanding shares of capital stock or similar equity
interests of each Subsidiary shown in Schedule 5.4 as being owned by the Company
and its Subsidiaries have been validly issued, are fully paid and nonassessable
and are owned by the Company or another Subsidiary free and clear of any Lien
(except as otherwise disclosed in Schedule 5.4).
(c) Each Subsidiary identified in Schedule 5.4 is a corporation or other
legal entity organized, validly existing and in good standing (or the local law
equivalent) under the laws of its jurisdiction of organization, and is duly
qualified as a foreign corporation or other legal entity and is in good standing
5
(or the local law equivalent) in each jurisdiction in which such qualification
is required by law, other than those jurisdictions as to which the failure to be
so qualified or in good standing (or the local law equivalent) would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. Each such Subsidiary has the corporate or other power and
authority to own or hold under lease the properties it purports to own or hold
under lease and to transact the business it transacts and proposes to transact.
5.5. Financial Statements.
The Company has delivered to each Purchaser copies of the financial
statements of the Company and its Subsidiaries listed on Schedule 5.5. All of
said financial statements (including in each case the related schedules and
notes) fairly present in all material respects the consolidated financial
position of the Company and its Subsidiaries as of the respective dates
specified in such Schedule and the consolidated results of their operations and
cash flows for the respective periods so specified and have been prepared in
accordance with GAAP consistently applied throughout the periods involved except
as set forth in the notes thereto (subject, in the case of any interim financial
statements, to normal year-end adjustments).
5.6. Compliance with Laws, Other Instruments, etc.
The execution, delivery and performance by the Company of this Agreement
and the Notes will not (i) contravene, result in any breach of, or constitute a
default under, or result in the creation of any Lien in respect of any property
of the Company or any Subsidiary under, any indenture, mortgage, deed of trust,
loan, purchase or credit agreement, lease, corporate charter or by-laws, or any
other Material agreement or instrument to which the Company or any Subsidiary is
bound or by which the Company or any Subsidiary or any of their respective
properties may be bound or affected, (ii) conflict with or result in a breach of
any of the terms, conditions or provisions of any order, judgment, decree, or
ruling of any court, arbitrator or Governmental Authority applicable to the
Company or any Subsidiary or (iii) assuming the correctness of the
representations and warranties of the Purchasers in this Agreement, violate any
provision of any statute or other rule or regulation of any Governmental
Authority applicable to the Company or any Subsidiary.
5.7. Governmental Authorizations, etc.
Assuming the correctness of the representations and warranties of the
Purchasers in this Agreement, no consent, approval or authorization of, or
registration, filing or declaration with, any Governmental Authority is required
in connection with the execution, delivery or performance by the Company of this
Agreement or the Notes.
5.8. Litigation; Observance of Statutes and Orders.
(a) There are no actions, suits or proceedings pending or, to the
knowledge of the Company, threatened against or affecting the Company or any
Subsidiary or any property of the Company or any Subsidiary in any court or
before any arbitrator of any kind or before or by any Governmental Authority
that, individually or in the aggregate, would reasonably be expected to have a
Material Adverse Effect.
6
(b) Neither the Company nor any Subsidiary is in default under any
order, judgment, decree or ruling of any court, arbitrator or Governmental
Authority or is in violation of any applicable law, ordinance, rule or
regulation (including without limitation Environmental Laws) of any Governmental
Authority, which default or violation, individually or in the aggregate, would
reasonably be expected to have a Material Adverse Effect.
5.9. Taxes.
The Company and its Subsidiaries have filed all income tax returns that
are required to have been filed in any jurisdiction, and have paid all taxes
shown to be due and payable on such returns and all other taxes and assessments
payable by them, to the extent such taxes and assessments have become due and
payable and before they have become delinquent, except for any taxes and
assessments (i) the amount of which is not individually or in the aggregate
Material or (ii) the amount, applicability or validity of which is currently
being contested in good faith by appropriate proceedings and with respect to
which the Company or a Subsidiary, as the case may be, has established adequate
reserves in accordance with GAAP. The Federal income tax liabilities of the
Company and its Subsidiaries have been determined by the Internal Revenue
Service and paid for all fiscal years up to and including the fiscal year ended
February 28, 1997.
5.10. Title to Property; Leases.
The Company and its Subsidiaries have good and sufficient title to their
respective Material properties, including all such properties reflected in the
most recent audited balance sheet referred to in Section 5.5 or purported to
have been acquired by the Company or any Subsidiary after said date (except as
sold or otherwise disposed of in the ordinary course of business), in each case
free and clear of Liens prohibited by this Agreement, except for those defects
in title and Liens that, individually or in the aggregate, would not have a
Material Adverse Effect. All Material leases are valid and subsisting and are in
full force and effect in all material respects.
5.11. Licenses, Permits, etc.
The Company and its Subsidiaries own, possess all licenses, permits,
franchises, authorizations, patents, copyrights, service marks, trademarks and
trade names, or rights thereto, that are Material, without known conflict with
the rights of others, except for those conflicts that, individually or in the
aggregate, would not have a Material Adverse Effect.
5.12. Compliance with ERISA.
(a) The Company and each ERISA Affiliate have operated and administered
each Plan in compliance with all applicable laws except for such instances of
noncompliance as have not resulted in and could not reasonably be expected to
result in a Material Adverse Effect. Neither the Company nor any ERISA Affiliate
has incurred any liability pursuant to Title I or IV of ERISA or the penalty or
excise tax provisions of the Code relating to employee benefit plans (as defined
in Section 3 of ERISA), and no event, transaction or condition has occurred or
exists that would reasonably be expected to result in the incurrence of any such
liability by the Company or any ERISA Affiliate, or in the imposition of any
Lien on any of the rights, properties or assets of the Company or any ERISA
Affiliate, in either case pursuant to Title I or IV of ERISA or to such penalty
or excise tax provisions or to Section 401(a)(29) or 412 of the Code, other than
such liabilities or Liens as would not be individually or in the aggregate
Material.
7
(b) The Company has no aggregate benefit liabilities under any Plan. The
term "benefit liabilities" has the meaning specified in section 4001 of ERISA
and the terms "current value" and "present value" have the meaning specified in
section 3 of ERISA.
(c) The Company and its ERISA Affiliates have not incurred withdrawal
liabilities (and are not subject to contingent withdrawal liabilities) under
section 4201 or 4204 of ERISA in respect of Multiemployer Plans that
individually or in the aggregate are Material.
(d) The expected postretirement benefit obligation (determined as of the
last day of the Company's most recently ended fiscal year in accordance with
Financial Accounting Standards Board Statement No. 106, without regard to
liabilities attributable to continuation coverage mandated by section 4980B of
the Code) of the Company and its Subsidiaries is not Material.
(e) The execution and delivery of this Agreement and the issuance and
sale of the Notes hereunder will not involve any transaction that is subject to
the prohibitions of section 406 of ERISA or in connection with which a tax could
be imposed pursuant to section 4975(c)(1)(A)- (D) of the Code. The
representation by the Company in the first sentence of this Section 5.12(e) is
made in reliance upon and subject to the accuracy of your representation in
Section 6.2 as to the sources of the funds to be used to pay the purchase price
of the Notes to be purchased by you.
5.13. Private Offering by the Company.
Neither the Company nor anyone acting on its behalf has offered the
Notes or any similar securities for sale to, or solicited any offer to buy any
of the same from, or otherwise approached or negotiated in respect thereof with,
any Person other than you, and not more than 49 other Institutional Investors,
each of which has been offered the Notes at a private sale for investment.
Neither the Company nor anyone acting on its behalf has taken, or will take, any
action that would subject the issuance or sale of the Notes to the registration
requirements of Section 5 of the Securities Act.
5.14. Use of Proceeds; Margin Regulations.
The Company will apply the proceeds of the sale of the Notes to repay
existing bank Debt and for general corporate purposes. No part of the proceeds
from the sale of the Notes hereunder will be used, directly or indirectly, for
the purpose of buying or carrying any margin stock within the meaning of
Regulation G of the Board of Governors of the Federal Reserve System (12 CFR
207), or for the purpose of buying or carrying or trading in any securities
under such circumstances as to involve the Company in a violation of Regulation
X of said Board (12 CFR 224) or to involve any broker or dealer in a violation
of Regulation T of said Board (12 CFR 220). Margin stock does not constitute
more than 5% of the value of the consolidated assets of the Company and its
Subsidiaries and the Company does not have any present intention that margin
stock will constitute more than 5% of the value of such assets. As used in this
Section, the terms "margin stock" and "purpose of buying or carrying" shall have
the meanings assigned to them in said Regulation G.
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5.15. Existing Debt.
Except as described therein, Schedule 5.15 sets forth a complete and
correct list of all outstanding Debt of the Company and its Subsidiaries as of
September 1, 1997, since which date there has been no Material change in the
amounts, interest rates, sinking funds, installment payments or maturities of
the Debt of the Company or its Subsidiaries. Neither the Company nor any
Subsidiary is in default and no waiver of default is currently in effect, in the
payment of any principal or interest on any Debt of the Company or such
Subsidiary and no event or condition exists with respect to any Debt of the
Company or any Subsidiary that would permit (or that with notice or the lapse of
time, or both, would permit) one or more Persons to cause such to become due and
payable before its stated maturity or before its regularly scheduled dates of
payment.
5.16. Foreign Assets Control Regulations, etc.
Neither the sale of the Notes by the Company hereunder nor its use of
the proceeds thereof will violate the Trading with the Enemy Act, as amended, or
any of the foreign assets control regulations of the United States Treasury
Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling
legislation or executive order relating thereto.
5.17. Status under Certain Statutes.
Neither the Company nor any Subsidiary is subject to regulation under
the Investment Company Act of 1940, as amended, the Public Utility Holding
Company Act of 1935, as amended, the Interstate Commerce Act, as amended, or the
Federal Power Act, as amended.
6. REPRESENTATIONS OF THE PURCHASER.
6.1. Purchase for Investment.
You represent that you are purchasing the Notes for your own account or
for one or more separate accounts maintained by you or for the account of one or
more pension or trust funds and not with a view to the distribution thereof,
provided that the disposition of your or their property shall at all times be
within your or their control. You understand that the Notes have not been
registered under the Securities Act and may be resold only if registered
pursuant to the provisions of the Securities Act or if an exemption from
registration is available, except under circumstances where neither such
registration nor such an exemption is required by law, and that the Company is
not required to register the Notes.
6.2. Source of Funds.
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
9
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 Purchaser is exempt
under PTE 95-60 (issued July 12, 1995).
As used in this Section 6.2, 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.
10
7. INFORMATION AS TO COMPANY.
7.1. Financial and Business Information.
The Company shall deliver to each holder of Notes that is an
Institutional Investor:
(a) Quarterly Statements -- within 45 days after the end of each quarterly
fiscal period in each fiscal year of the Company (other than the last quarterly
fiscal period of each such fiscal year), duplicate copies of,
(i) a consolidated balance sheet of the Company and its
Subsidiaries as at the end of such quarter, and
(ii) consolidated statements of income and cash flows of the
Company and its Subsidiaries, for such quarter and (in the case of the
second and third quarters) for the portion of the fiscal year ending
with such quarter,
setting forth in each case in comparative form the figures for the corresponding
periods in the previous fiscal year, all in reasonable detail, prepared in
accordance with GAAP applicable to quarterly financial statements generally, and
certified by a Senior Financial Officer (as to which certificate there shall not
be any personal (as opposed to corporate) liability) as fairly presenting, in
all material respects, the financial position of the companies being reported on
and their results of operations and cash flows, subject to changes resulting
from year-end adjustments; provided, that delivery within the time period
specified above of copies of the Company's Quarterly Report on Form 10-Q
prepared in compliance with the requirements therefor and filed with the
Securities and Exchange Commission shall be deemed to satisfy the requirements
of this Section 7.1(a);
(b) Annual Statements -- within 90 days after the end of each fiscal year
of the Company, duplicate copies of,
(i) audited consolidated and unaudited consolidating balance
sheets of the Company and its Subsidiaries, as at the end of such
year, and
(ii) audited consolidated and unaudited consolidating statements
of income and cash flows and audited consolidated statements of
changes in stockholders' equity of the Company and its Subsidiaries,
for such year,
setting forth in each case in comparative form the figures for the previous
fiscal year, all in reasonable detail, prepared in accordance with GAAP, and
accompanied in the case of the consolidated statements only
(A) by an opinion thereon of independent certified public
accountants of recognized national standing, which opinion shall
state that such financial statements present fairly, in all
material respects, the financial position of the companies being
reported upon and their results of operations and cash flows and
have been prepared in conformity with GAAP, and that the
examination of such accountants in connection with such financial
statements has been made in accordance with generally accepted
auditing standards, and that such audit provides a reasonable
basis for such opinion in the circumstances; and
11
(B) by a certificate of such accountants stating that they
have reviewed this Agreement and stating further whether, in
making their audit, they have become aware of any condition or
event that then constitutes a Default or an Event of Default,
and, if they are aware that any such condition or event then
exists, specifying the nature and period of the existence thereof
(it being understood that such accountants shall not be liable,
directly or indirectly, for any failure to obtain knowledge of
any Default or Event of Default unless such accountants should
have obtained knowledge thereof in making an audit in accordance
with generally accepted auditing standards or did not make such
an audit),
and provided that the delivery within the time period specified above of the
Company's Annual Report on Form 10-K for such fiscal year (together with the
Company's annual report to stockholders, if any, prepared pursuant to Rule 14a-3
under the Exchange Act) prepared in accordance with the requirements therefor,
containing all of the foregoing information and filed with the Securities and
Exchange Commission, together with the accountant's certificate described in
clause (B) above, shall be deemed to satisfy the requirements of this Section
7.1(b), other than with respect to required consolidating statements;
(c) SEC and Other Reports -- promptly upon their becoming available, and
if applicable, one copy of (i) each financial statement, report, notice or proxy
statement sent by the Company or any Subsidiary to public securities holders
generally, and (ii) each regular or periodic report, each registration statement
that shall have become effective (without exhibits except as expressly requested
by such holder), and each final prospectus and all amendments thereto filed by
the Company or any Subsidiary with the Securities and Exchange Commission;
(d) Notice of Default or Event of Default -- promptly, and in any event
within five days after a Responsible Officer becoming aware of the existence of
any Default or Event of Default, a written notice specifying the nature and
period of existence thereof and what action the Company is taking or proposes to
take with respect thereto;
(e) ERISA Matters -- promptly, and in any event within five Business
Days after a Responsible Officer becoming aware of any of the following, a
written notice setting forth the nature thereof and the action, if any, that the
Company or an ERISA Affiliate proposes to take with respect thereto:
(i) with respect to any Plan, any reportable event, as
defined in section 4043(b) of ERISA and the regulations thereunder, for
which notice thereof has not been waived pursuant to such regulations as
in effect on the date hereof; or
(ii) the taking by the PBGC of steps to institute, or the
threatening by the PBGC of the institution of, proceedings under section
4042 of ERISA for the termination of, or the appointment of a trustee to
administer, any Plan, or the receipt by the Company or any ERISA
Affiliate of a notice from a Multiemployer Plan that such action has
been taken by the PBGC with respect to such Multiemployer Plan; or
(iii) any event, transaction or condition that could
result in the incurrence of any liability by the Company or any ERISA
Affiliate pursuant to Title I or IV of ERISA or the penalty or excise
tax provisions of the Code relating to employee benefit plans, or in
12
the imposition of any Lien on any of the rights, properties or assets of
the Company or any ERISA Affiliate pursuant to Title I or IV of ERISA or
such penalty or excise tax provisions, if such liability or Lien, taken
together with any other such liabilities or Liens then existing, would
reasonably be expected to have a Material Adverse Effect; and
(f) Requested Information -- with reasonable promptness, such other data
and information relating to the business, operations, affairs, financial
condition, assets or properties of the Company or any of its Subsidiaries or
relating to the ability of the Company to perform its obligations hereunder and
under the Notes as from time to time may be reasonably requested by any such
holder of Notes.
7.2. Officer's Certificate.
Each set of financial statements delivered to a holder of Notes pursuant
to Section (a) or Section (b) of Section 7.1 shall be accompanied by a
certificate of a Senior Financial Officer (as to which certificate there shall
be no personal (as opposed to corporate) liability) setting forth:
(a) Covenant Compliance -- the information (including detailed
calculations, if applicable) required in order to establish whether the Company
was in compliance with the requirements of Sections 10.2 through 10.10 hereof,
inclusive, during the quarterly or annual period covered by the statements then
being furnished (including, with respect to each such Section, where applicable,
the calculations of the maximum or minimum amount, ratio or percentage, as the
case may be, permissible under the terms of such Sections, and the calculation
of the amount, ratio or percentage then in existence); and
(b) Event of Default -- a statement that such officer has reviewed the
relevant terms hereof and has made, or caused to be made, under his or her
supervision, a review of the transactions and conditions of the Company and its
Subsidiaries from the beginning of the quarterly or annual period covered by the
statements then being furnished to the date of the certificate and that such
review 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 (including, without limitation, any
such event or condition resulting from the failure of the Company or any
Subsidiary to comply with any Environmental Law), specifying the nature and
period of existence thereof and what action the Company shall have taken or
proposes to take with respect thereto.
7.3. Inspection.
The Company shall permit the representatives of each holder of Notes
that is an Institutional Investor:
(a) No Default -- if no Default or Event of Default then exists, at the
expense of such holder and upon reasonable prior notice to the Company, to visit
the principal executive office of the Company, to discuss the affairs, finances
and accounts of the Company and its Subsidiaries with the Company's officers,
and, with the consent of the Company (which consent will not be unreasonably
withheld) to visit the other offices and properties of the Company and each
Subsidiary, all at such reasonable times and as often as may be reasonably
requested in writing;
and
13
(b) Default -- if a Default or Event of Default then exists, at the
expense of the Company to visit and inspect any of the offices or properties of
the Company or any Subsidiary, to examine all their respective books of account,
records, reports and other papers, to make copies and extracts therefrom, and to
discuss their respective affairs, finances and accounts with their respective
officers and independent public accountants (and by this provision the Company
authorizes said accountants to discuss the affairs, finances and accounts of the
Company and its Subsidiaries), all at such times and as often as may be
requested.
8. PREPAYMENT OF THE NOTES.
8.1. Required Prepayments.
In addition to payment of all outstanding principal of the Notes at
maturity, on September 1, 2001 and on each September 1 thereafter to and
including September 1, 2006 the Company will prepay $4,285,714 principal amount
(or such lesser principal amount as shall then be outstanding) of the Notes,
with the remaining principal payable at maturity on September 1, 2007, at par
and without payment of the Make-Whole Amount or any premium, provided that upon
any partial prepayment of the Notes pursuant to Section 8.2 or 8.3 or purchase
of the Notes permitted by Section 8.5, the principal amount of each required
prepayment of the Notes becoming due under this Section 8.1 on and after the
date of such prepayment or purchase shall be reduced in the same proportion as
the aggregate unpaid principal amount of the Notes is reduced as a result of
such prepayment or purchase.
8.2. Optional Prepayments with Make-Whole Amount.
Beginning on the day after the first anniversary of the Closing Date,
the Company may, at its option, upon notice as provided below, prepay at any
time all, or from time to time any part of, the Notes, in an amount not less
than $1,000,000 of the aggregate principal amount of the Notes then outstanding
in the case of a partial prepayment, at 100% of the principal amount so prepaid,
plus the Make-Whole Amount determined for the prepayment date with respect to
such principal amount. The Company will give each holder of Notes written notice
of each optional prepayment under this Section 8.2 not less than 30 days and not
more than 60 days prior to the date fixed for such prepayment. Each such notice
shall specify such date, the aggregate principal amount of the Notes to be
prepaid on such date, the principal amount of each Note held by such holder to
be prepaid (determined in accordance with Section 8.3), and the interest to be
paid on the prepayment date with respect to such principal amount being prepaid,
and shall be accompanied by a certificate of a Senior Financial Officer (as to
which certificate there shall be no personal (as opposed to corporate)
liability) as to the estimated Make-Whole Amount due in connection with such
prepayment (calculated as if the date of such notice were the date of the
prepayment), setting forth the details of such computation. Two Business Days
prior to such prepayment, the Company shall deliver to each holder of Notes a
certificate of a Senior Financial Officer (as to which certificate there shall
be no personal (as opposed to corporate) liability) specifying the calculation
of such Make-Whole Amount as of the specified prepayment date.
14
8.3. Allocation of Partial Prepayments.
In the case of each partial prepayment of the Notes, the principal
amount of the Notes to be prepaid shall be allocated among all of the Notes at
the time outstanding in proportion, as nearly as practicable, to the respective
unpaid principal amounts thereof not theretofore called for prepayment.
8.4. Maturity; Surrender, etc.
In the case of each prepayment of Notes pursuant to this Section 8, the
principal amount of each Note to be prepaid shall mature and become due and
payable on the date fixed for such prepayment, together with interest on such
principal amount accrued to such date and the applicable Make-Whole Amount, if
any. From and after such date, unless the Company shall fail to pay such
principal amount when so due and payable, together with the interest and
Make-Whole Amount, if any, as aforesaid, interest on such principal amount shall
cease to accrue. Any Note paid or prepaid in full shall be surrendered to the
Company and canceled and shall not be reissued, and no Note shall be issued in
lieu of any prepaid principal amount of any Note.
8.5. Purchase of Notes.
The Company will not and will not permit any Affiliate to purchase,
redeem, prepay or otherwise acquire, directly or indirectly, any of the
outstanding Notes except (a) upon the payment or prepayment of the Notes in
accordance with the terms of this Agreement and the Notes or (b) pursuant to an
offer to purchase made by the Company or an Affiliate pro rata to the holders of
all Notes at the time outstanding upon the same terms and conditions. Any such
offer shall provide each holder with sufficient information to enable it to make
an informed decision with respect to such offer, and shall remain open for at
least 30 Business Days. If the holders of more than 50% of the principal amount
of the Notes then outstanding accept such offer, the Company shall promptly
notify the remaining holders of such fact and the expiration date for the
acceptance by holders of Notes of such offer shall be extended by the number of
days necessary to give each such remaining holder at least 15 Business Days from
its receipt of such notice to accept such offer. The Company will promptly
cancel all Notes acquired by it or any Affiliate pursuant to any payment,
prepayment or purchase of Notes pursuant to any provision of this Agreement and
no Notes may be issued in substitution or exchange for any such Notes.
8.6. Make-Whole Amount.
The term "Make-Whole Amount" means, with respect to any Note, an amount
equal to the excess, if any, of the Discounted Value of the Remaining Scheduled
Payments with respect to the Called Principal of such Note over the amount of
such Called Principal, provided that the Make-Whole Amount may in no event be
less than zero. For the purposes of determining the Make-Whole Amount, the
following terms have the following meanings:
"Called Principal" means, with respect to any Note, the principal of
such Note that is to be prepaid pursuant to Section 8.2 or has become or is
declared to be immediately due and payable pursuant to Section 12.1, as the
context requires.
15
"Discounted Value" means, with respect to the Called Principal of any
Note, the amount obtained by discounting all Remaining Scheduled Payments with
respect to such Called Principal from their respective scheduled due dates to
the Settlement Date with respect to such Called Principal, in accordance with
accepted financial practice and at a discount factor (applied on the same
periodic basis as that on which interest on the Notes is payable) equal to the
Reinvestment Yield with respect to such Called Principal.
"Reinvestment Yield" means, with respect to the Called Principal of any
Note, the yield to maturity implied by (i) the yields reported, as of 10:00 A.M.
(New York City time) on the second Business Day preceding the Settlement Date
with respect to such Called Principal, on the display designated as "Page 678"
on the Telerate Access Service (or such other display as may replace Page 678 on
Telerate Access Service) for actively traded U.S. Treasury securities having a
maturity equal to the Remaining Average Life of such Called Principal as of such
Settlement Date, plus .50%, or (ii) if such yields are not reported as of such
time or the yields reported as of such time are not ascertainable, the Treasury
Constant Maturity Series Yields reported, for the latest day for which such
yields have been so reported as of the second Business Day preceding the
Settlement Date with respect to such Called Principal, in Federal Reserve
Statistical Release H.15 (519) (or any comparable successor publication) for
actively traded U.S. Treasury securities having a constant maturity equal to the
Remaining Average Life of such Called Principal as of such Settlement Date, plus
.50%. Such implied yield will be determined, if necessary, by (a) converting
U.S. Treasury bill quotations to bond-equivalent yields in accordance with
accepted financial practice and (b) interpolating linearly between (1) the
actively traded U.S. Treasury security with the duration closest to and greater
than the Remaining Average Life and (2) the actively traded U.S. Treasury
security with the duration closest to and less than the Remaining Average Life.
"Remaining Average Life" means, with respect to any Called Principal,
the number of years (calculated to the nearest one-twelfth year) obtained by
dividing (i) such Called Principal into (ii) the sum of the products obtained by
multiplying (a) the principal component of each Remaining Scheduled Payment with
respect to such Called Principal by (b) the number of years (calculated to the
nearest one-twelfth year) that will elapse between the Settlement Date with
respect to such Called Principal and the scheduled due date of such Remaining
Scheduled Payment.
"Remaining Scheduled Payments" means, with respect to the Called
Principal of any Note, all payments of such Called Principal and interest
thereon that would be due after the Settlement Date with respect to such Called
Principal if no payment of such Called Principal were made prior to its
scheduled due date, provided that if such Settlement Date is not a date on which
interest payments are due to be made under the terms of the Notes, then the
amount of the next succeeding scheduled interest payment will be reduced by the
amount of interest accrued to such Settlement Date and required to be paid on
such Settlement Date pursuant to Section 8.2 or 12.1.
"Settlement Date" means, with respect to the Called Principal of any
Note, the date on which such Called Principal is to be prepaid pursuant to
Section 8.2 or has become or is declared to be immediately due and payable
pursuant to Section 12.1, as the context requires.
16
9. AFFIRMATIVE COVENANTS.
The Company covenants that so long as any of the Notes are outstanding:
9.1. Compliance with Law.
The Company will and will cause each of its Subsidiaries to comply with
all laws, ordinances or governmental rules or regulations to which each of them
is subject, including, without limitation, Environmental Laws, and will obtain
and maintain in effect all licenses, certificates, permits, franchises and other
governmental authorizations necessary to the ownership of their respective
properties or to the conduct of their respective businesses, in each case to the
extent necessary to ensure that non-compliance with such laws, ordinances or
governmental rules or regulations or failures to obtain or maintain in effect
such licenses, certificates, permits, franchises and other governmental
authorizations would not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect.
9.2. Insurance.
The Company will and will cause each of its Subsidiaries to maintain,
with financially sound and reputable insurers, insurance with respect to their
respective properties and businesses against such casualties and contingencies,
of such types, on such terms and in such amounts (including deductibles,
co-insurance and self-insurance, if adequate reserves are maintained with
respect thereto) as is customary in the case of entities of established
reputations engaged in the same or a similar business and similarly situated.
9.3. Maintenance of Properties.
The Company will and will cause each of its Subsidiaries to maintain and
keep, or cause to be maintained and kept, their respective properties in good
repair, working order and condition (other than ordinary wear and tear), so that
the business carried on in connection therewith may be properly conducted at all
times, provided that this Section shall not prevent the Company or any
Subsidiary from discontinuing the operation and the maintenance of any of its
properties if such discontinuance is desirable in the conduct of its business
and the Company has concluded that such discontinuance would not, individually
or in the aggregate, have a Material Adverse Effect.
9.4. Payment of Taxes.
The Company will and will cause each of its Subsidiaries to file all
income tax or similar tax returns required to be filed in any jurisdiction and
to pay and discharge all taxes shown to be due and payable on such returns and
all other taxes, assessments, governmental charges, or levies payable by any of
them, to the extent such taxes and assessments have become due and payable and
before they have become delinquent, provided that neither the Company nor any
Subsidiary need pay any such tax or assessment if (i) the amount, applicability
or validity thereof is contested by the Company or such Subsidiary on a timely
basis in good faith and in appropriate proceedings, and the Company or a
Subsidiary has established adequate reserves therefor in accordance with GAAP on
the books of the Company or such Subsidiary or (ii) the nonpayment of all such
taxes and assessments in the aggregate would not reasonably be expected to have
a Material Adverse Effect.
17
9.5. Corporate Existence, etc.
The Company will at all times preserve and keep in full force and effect
its corporate existence. Subject to Sections 10.2 and 10.8, the Company will at
all times preserve and keep in full force and effect the corporate existence of
each of its Subsidiaries (unless merged into the Company or another Subsidiary)
and all rights and franchises of the Company and its Subsidiaries unless, in the
good faith judgment of the Company, the termination of or failure to preserve
and keep in full force and effect such corporate existence, right or franchise
would not, individually or in the aggregate, have a Material Adverse Effect.
10. NEGATIVE COVENANTS.
The Company covenants that so long as any of the Notes are outstanding:
10.1. Transactions with Affiliates.
The Company will not and will not permit any Subsidiary to enter into
directly or indirectly any Material transaction or Material group of related
transactions (including without limitation the purchase, lease, sale or exchange
of properties of any kind or the rendering of any service) with any Affiliate
(other than the Company or another Subsidiary), except pursuant to the
reasonable requirements of the Company's or such Subsidiary's business and upon
fair and reasonable terms no less favorable to the Company or such Subsidiary
than would be obtainable in a comparable arm's-length transaction with a Person
not an Affiliate.
10.2. Merger, Consolidation, etc.
(a) The Company shall not consolidate with or merge with any other
corporation (other than a Wholly-Owned Restricted Subsidiary) or convey,
transfer or lease substantially all of its assets in a single transaction or
series of transactions to any Person (other than a Wholly-Owned Restricted
Subsidiary) unless:
(i) the successor formed by such consolidation or the survivor of
such merger or the Person that acquires by conveyance, transfer or lease
substantially all of the assets of the Company as an entirety, as the
case may be, shall be a solvent corporation organized and existing under
the laws of the United States or any State thereof (including the
District of Columbia), and, if the Company is not such corporation, such
corporation shall have executed and delivered to each holder of any
Notes its assumption of the due and punctual performance and observance
of each covenant and condition of this Agreement and the Notes (pursuant
to such agreements and instruments as shall be reasonably satisfactory
to the Required Holders), and the Company shall have caused to be
delivered to each holder of Notes an opinion of independent counsel
reasonably satisfactory to the Required Holders, to the effect that all
agreements or instruments effecting such assumption are enforceable in
accordance with their terms and comply with the terms hereof; and
(ii) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing.
18
No conveyance, transfer or lease of substantially all of the assets of
the Company shall have the effect of releasing the Company or any successor
corporation that shall theretofore have become such in the manner prescribed in
this Section 10.2 from its liability under this Agreement or the Notes.
(b) Except for transactions that are otherwise in compliance with
Section 10.8, the Company shall not permit any Restricted Subsidiary to
consolidate with or merge into any other Person or convey, transfer or lease
substantially all of its assets in a single transaction or series of
transactions to any Person unless:
(i) the Restricted Subsidiary consolidates with or merges into
the Company or another Wholly-Owned Restricted Subsidiary or a Person
which becomes a Wholly-Owned Restricted Subsidiary as a result of such
consolidation or merger; or
(ii) the Restricted Subsidiary conveys, transfers or leases all
or a substantial part of its assets to the Company or to another
Wholly-Owned Restricted Subsidiary or to a Person which becomes a
Wholly-Owned Restricted Subsidiary as a result of such conveyance,
transfer or lease.
(c) The Company shall not (i) permit any Restricted Subsidiary to issue
shares of capital stock to any Person except the Company or another Wholly-Owned
Restricted Subsidiary or (ii) sell, transfer or otherwise dispose of shares or
capital stock of any of the Company's Restricted Subsidiaries other than to the
Company or another Restricted Subsidiary; provided, however, that the Company
may sell, transfer or otherwise dispose of shares of capital stock of any
Restricted Subsidiary if such sale, transfer or disposition would be permitted
pursuant to Section 10.8 hereof.
10.3. Consolidated Net Worth.
The Company will not, at any time, permit its Consolidated Net Worth to
be less than the sum of (a) $25,000,000 plus (b) 50% of Consolidated Net Income
(but, in each case, only if a positive number) calculated on a cumulative basis
commencing with the quarter ending August 31, 1997, and measured as of the last
day of each fiscal quarter thereafter.
10.4. Debt.
(a) The Company and its Restricted Subsidiaries shall not, at any time,
permit: (i) the ratio of Senior Funded Debt to EBITDA to be greater than 3:00 to
1:00 for the immediately preceding four consecutive fiscal quarters and (ii) the
ratio of Total Debt to EBITDA to be greater than 4:00 to 1:00 for the
immediately preceding four consecutive fiscal quarters; provided that, in the
event the Company or any Restricted Subsidiary acquires all of the capital stock
or substantially all of the assets or any other Person, the Company may include
the EBITDA of such Person for the prior four fiscal quarters in calculating the
EBITDA of the Company pursuant to this paragraph (a).
(b) The Company will not permit any Restricted Subsidiaries at any time,
to create, assign, incur, guaranty, or otherwise permit to exist any Debt other
than:
19
(i) existing Debt described in Schedule 5.15;
(ii) Debt owed by a Wholly-Owned Restricted Subsidiary to the
Company or another Wholly-Owned Restricted Subsidiary;
(iii) subject to compliance with Section 10.7(j), Debt of
Restricted Subsidiaries created after the Closing Date not to exceed,
in the aggregate at any time outstanding, 15% of the sum of
Consolidated Funded Debt and Consolidated Net Worth as of the last day
of the immediately preceding fiscal quarter; and
(iv) any extension, renewal, refunding or replacement of any Debt
described in paragraph (i) of this Section 10.4(b); provides that (1)
no such extension, renewal or refunding shall increase the principal
amount of such Debt and (2) immediately after such extension, renewal
or refunding, no Default or Event of Default would exist.
Notwithstanding the foregoing, the Company will not permit at any time
Corporate Stay International Inc. or Globe Furniture Rentals, Inc. to create,
assign, incur, guarantee or otherwise permit to exist any Debt.
10.5. Current Ratio.
The Company will not permit, as of the end of each fiscal quarter, its
Consolidated Current Ratio to be less than 2:50 to 1:00.
10.6. Fixed Charge Coverage Ratio.
The Company will not, as of the end of any fiscal quarter, permit the
ratio of Consolidated Cash Flow Available for Fixed Charges for the immediately
preceding four consecutive fiscal quarters to Consolidated Fixed Charges for the
immediately preceding four consecutive fiscal quarters to be less than 1:75 to
1:00.
10.7. Liens.
The Company will not, and will not permit any Restricted Subsidiary to,
create, assume, or incur, or permit to exist, directly or indirectly, any Lien
on its properties or assets, whether now owned or hereafter acquired, except:
(a) Liens for property taxes, assessments, or other governmental charges
not then due and delinquent or the validity of which is being contested in good
faith and as to which the Company has established adequate reserves on its books
in accordance with GAAP;
(b) Liens arising in the ordinary course of business and not incurred in
connection with the borrowing of money, including Liens securing claims of
carriers, warehousemen, mechanics, materialmen, employees, landlords and other
similar Liens that in the aggregate do not materially interfere with the conduct
of business of the Company and its Restricted Subsidiaries, taken as a whole, or
materially impair the value of the property or assets of the Company and its
Restricted Subsidiaries, taken as a whole;
20
(c) Liens incidental to the normal conduct of the business of the
Company or any Restricted Subsidiary (not incurred for the borrowing of money),
including Liens in connection with workers' compensation, unemployment
insurance, and other governmental insurance or benefits;
(d) Liens resulting from judgments or court proceedings, provided the
execution of such Liens is effectively stayed, such Liens are being contested in
good faith by appropriate proceedings and the Company has established adequate
reserves for such matters on its books in accordance with GAAP;
(e) minor survey exceptions, easements, encroachments, rights-of-way,
and zoning ordinances which customarily exist on real property and which do not
materially detract from the value of such property;
(f) Liens securing Debt of a Restricted Subsidiary to the Company or
another Wholly-Owned Restricted Subsidiary;
(g) existing Liens on property of the Company or any Restricted
Subsidiary described on Schedule 10.7;
(h) Liens securing the payment of the purchase price of assets provided
(i) any such Liens are created within 180 days after the acquisition of such
assets; (ii) at the time of acquisition of such assets, Debt secured by such
Liens does not exceed the purchase price thereof (including any interest or
other finance charges); (iii) such Liens do not extend to other property of the
Company or any Restricted Subsidiary; and (iv) Debt secured by such Liens is
permitted by Section 10.4 hereof;
(i) Liens created pursuant to Capitalized Leases permitted by Section
10.4 hereof; and
(j) Liens not permitted by paragraphs (a) through (i) above to secure
Debt; provided that at the time of incurrence of such Debt, (i) the aggregate
amount of Secured Debt permitted by this Section 10.7(j) plus the aggregate
amount of outstanding Debt of Restricted Subsidiaries permitted by Section
10.4(b)(iii) will not, as of the date of incurrence of such Debt, exceed 20% of
the sum of Consolidated Net Worth plus Consolidated Funded Debt and (ii) the
Company is in compliance with Section 10.4 hereof.
Notwithstanding the foregoing, the Company will not permit Corporate Stay
International Inc. or Globe Furniture Rentals, Inc. to create, assign, incur or
permit to exist, directly or indirectly, any Lien on any trademarks or
tradenames owned by either of such Restricted Subsidiaries.
10.8. Sale of Assets.
The Company will not, and will not permit any Restricted Subsidiary to,
sell, lease, transfer or otherwise (including by way of merger) dispose of
(collectively a "Disposition") any assets, including capital stock of
Subsidiaries, in one or a series of transactions, other than in the ordinary
course of business, to any Person, except to the Company or a Wholly-Owned
Restricted Subsidiary, (i) if, in any fiscal year, after giving effect to such
21
Disposition, the aggregate net book value of assets subject to Dispositions
(other than Dispositions involving the Exchange of Assets) during such fiscal
year would, when added to the net book value attributable to any Negative
Exchanges of Assets, exceed 5% of Consolidated Total Assets as of the end of the
fiscal quarter immediately preceding such Disposition or (ii) if a Default or
Event of Default exists or would exist as a result of such Disposition; provided
that, in no event shall the Company or its Restricted Subsidiaries sell for less
than face value any of its trade receivables except on commercially reasonable
terms in the ordinary course of business in conjunction with the sale of Market
Property, except that the face value of trade receivables sold in conjunction
with the sale of Market Property shall be included as Dispositions for purposes
of clause (i) above.
10.9. Nature of Business.
The Company will not, and will not permit any Restricted Subsidiary to,
engage in any business if, as a result thereof, the business then to be
conducted by the Company and its Restricted Subsidiaries, taken as a whole,
would cease to be substantially the same as the business of the Company and its
Restricted Subsidiaries described in the Memorandum.
10.10. Pari Passu Position
The Company agrees that neither it nor its Restricted Subsidiaries shall
have outstanding any Debt to commercial banks that is not on a pari passu basis
with the Notes.
11. EVENTS OF DEFAULT.
An "Event of Default" shall exist if any of the following conditions or
events shall occur and be continuing:
(a) Any default in the payment of interest when due on any of the
Notes and continuance of such default for a period of five days;
(b) Any default in the payment of the principal or Make-Whole Amount of
any of the Notes at maturity, upon acceleration of maturity or at any date fixed
for prepayment;
(c) (i) Any default in the payment of the principal of, or interest or
premium on, any other Debt of the Company and its Restricted Subsidiaries that
is outstanding in an aggregate principal amount in excess of $1,000,000 as and
when due and payable and the continuation of such default beyond the period of
grace, if any, allowed with respect thereto, or (ii) any default (other than a
payment default) in compliance with any term or provision under any loan
agreements or other instruments evidencing Debt of the Company and its
Restricted Subsidiaries in an aggregate outstanding principal amount in excess
of $1,000,000, and the continuation of such default beyond the period of grace,
if any, allowed with respect thereto.
(d) Any default in the observance or performance of Sections 10.1,
10.2, and Sections 10.4 through 10.10;
(e) Any default in the observance or performance of any other covenant
or provision of this Agreement which is not remedied within 30 days after the
22
earlier of (i) a Responsible Officer obtaining knowledge of such default and
(ii) the Company receiving written notice thereof from any holder of a Note;
(f) Any representation or warranty made pursuant to Section 4.1 by or on
behalf of the Company or any Restricted Subsidiary in this Agreement, or made by
or on behalf of the Company in any written statement or certificate furnished by
or on behalf of the Company in connection with the issuance and sale of the
Notes or furnished by or on behalf of the Company or any Restricted Subsidiary
pursuant to this Agreement, proves incorrect as of the date of the issuance or
making thereof;
(g) Any judgment, writ or warrant of attachment or any similar process
in an aggregate amount in excess of $2,000,000 shall be entered or filed against
the Company or any Restricted Subsidiary or against any property or assets of
either and remain unpaid, uninsured, unindemnified, unvacated, unbonded or
unstayed (through appeal or otherwise) for sixty (60) days or, if stayed pending
appeal, are not discharged within sixty (60) days after expiration of such stay;
(h) The Company or any Restricted Subsidiary shall
(i) generally not pay its debts as they become due or admit in
writing its inability to pay its debts generally as they become due;
(ii) file a petition in bankruptcy or for reorganization or for
the adoption of an arrangement under the Federal Bankruptcy Code, or
any similar applicable bankruptcy or insolvency law, as now or in the
future amended (herein collectively called "Bankruptcy Laws"); file an
answer or other pleading admitting or failing to deny the material
allegations of such a petition; fail to obtain the dismissal of such a
petition within 60 days of its filing or be subject to an order for
relief or a decree approving such a petition; or file an answer or
other pleading seeking, consenting to or acquiescing in relief
provided for under the Bankruptcy Laws;
(iii) make an assignment of all or a substantial part of its
property for the benefit of its creditors;
(iv) seek or consent to or acquiesce in the appointment of a
receiver, liquidator, custodian or trustee of it or for all or a
substantial part of its property;
(v) be finally adjudicated bankrupt or insolvent;
(vi) be subject to the entry of a court order, which shall not be
vacated, set aside or stayed within 60 days of the date of entry, (A)
appointing a receiver, liquidator, custodian or trustee of it or for all
or a substantial part of its property, (B) for relief pursuant to an
involuntary case brought under, or effecting an arrangement in,
bankruptcy, (C) for a reorganization pursuant to the Bankruptcy Laws, or
(D) for any other judicial modification or alteration of the rights of
creditors; or
(vii) be subject to the assumption of custody or sequestration by
a court of competent jurisdiction of all or a substantial part of its
property, which custody or sequestration shall not be suspended or
terminated within 60 days from its inception.
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12. REMEDIES ON DEFAULT, ETC.
12.1. Acceleration.
(a) If an Event of Default with respect to the Company described in
paragraph (h) of Section 11 has occurred, all the Notes then outstanding shall
automatically become immediately due and payable.
(b) If any other Event of Default has occurred and is continuing, any
holder or holders of more than 25% in principal amount of the Notes at the time
outstanding may at any time at its or their option, by notice or notices to the
Company, declare all the Notes then outstanding to be immediately due and
payable.
(c) If any Event of Default described in paragraph (a) or (b) of Section
11 has occurred and is continuing, any holder or holders of Notes at the time
outstanding affected by such Event of Default may at any time, at its or their
option, by notice or notices to the Company, declare all the Notes held by it or
them to be immediately due and payable.
Upon any Notes becoming due and payable under this Section 12.1, whether
automatically or by declaration, such Notes will forthwith mature and the entire
unpaid principal amount of such Notes, plus (x) all accrued and unpaid interest
thereon and (y) the Make-Whole Amount determined in respect of such principal
amount (to the fullest extent permitted by applicable law), shall all be
immediately due and payable, in each and every case without presentment, demand,
protest or further notice, all of which are hereby waived. The Company
acknowledges, and the parties hereto agree, that each holder of a Note has the
right to maintain its investment in the Notes free from prepayment by the
Company (except as herein specifically provided for) and that the provision for
payment of a Make-Whole Amount by the Company in the event that the Notes are
prepaid or are accelerated as a result of an Event of Default, is intended to
provide compensation for the deprivation of such right under such circumstances.
12.2. Other Remedies.
If any Default or Event of Default has occurred and is continuing, and
irrespective of whether any Notes have become or have been declared immediately
due and payable under Section 12.1, the holder of any Note at the time
outstanding may proceed to protect and enforce the rights of such holder by an
action at law, suit in equity or other appropriate proceeding, whether for the
specific performance of any agreement contained herein or in any Note, or for an
injunction against a violation of any of the terms hereof or thereof, or in aid
of the exercise of any power granted hereby or thereby or by law or otherwise.
12.3. Rescission.
At any time after any Notes have been declared due and payable pursuant
to clause (b) or (c) of Section 12.1, the holders of not less than 76% in
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principal amount of the Notes then outstanding, by written notice to the
Company, may rescind and annul any such declaration and its consequences if (a)
the Company has paid all overdue interest on the Notes, all principal of and
Make-Whole Amount, if any, on any Notes that are due and payable and are unpaid
other than by reason of such declaration, and all interest on such overdue
principal and Make-Whole Amount, if any, and (to the extent permitted by
applicable law) any overdue interest in respect of the Notes, at the Default
Rate, (b) all Events of Default and Defaults, other than non-payment of amounts
that have become due solely by reason of such declaration, have been cured or
have been waived pursuant to Section 17, and (c) no judgment or decree has been
entered for the payment of any monies due pursuant hereto or to the Notes. No
rescission and annulment under this Section 12.3 will extend to or affect any
subsequent Event of Default or Default or impair any right consequent thereto.
12.4. No Waivers or Election of Remedies, Expenses, etc.
No course of dealing and no delay on the part of any holder of any Note
in exercising any right, power or remedy shall operate as a waiver thereof or
otherwise prejudice such holder's rights, powers or remedies. No right, power or
remedy conferred by this Agreement or by any Note upon any holder thereof shall
be exclusive of any other right, power or remedy referred to herein or therein
or now or hereafter available at law, in equity, by statute or otherwise.
Without limiting the obligations of the Company under Section 15, the Company
will pay to the holder of each Note on demand such further amount as shall be
sufficient to cover all reasonable costs and expenses of such holder incurred in
any enforcement or collection under this Section 12, including, without
limitation, reasonable attorneys' fees, expenses and disbursements.
13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES.
13.1. Registration of Notes.
The Company shall keep at its principal executive office a register for
the registration and registration of transfers of Notes. The name and address of
each holder of one or more Notes, each transfer thereof and the name and address
of each transferee of one or more Notes shall be registered in such register.
Prior to due presentment for registration of transfer, the Person in whose name
any Note shall be registered shall be deemed and treated as the owner and holder
thereof for all purposes hereof, and the Company shall not be affected by any
notice or knowledge to the contrary. The Company shall give to any holder of a
Note that is an Institutional Investor promptly upon request therefor, a
complete and correct copy of the names and addresses of all registered holders
of Notes.
13.2. Transfer and Exchange of Notes.
(a) Except as provided in paragraph (b) of this Section 13.2, upon
surrender of any Note at the principal executive office of the Company for
registration of transfer or exchange (and in the case of a surrender for
registration of transfer, duly endorsed or accompanied by a written instrument
of transfer duly executed by the registered holder of such Note or his attorney
duly authorized in writing and accompanied by the address for notices of each
transferee of such Note or part thereof), the Company shall execute and deliver,
at the Company's expense (except as provided below), one or more new Notes (as
requested by the holder thereof) in exchange
25
therefor, in an aggregate principal amount equal to the unpaid principal amount
of the surrendered Note. Each such new Note shall be payable to such Person as
such holder may request and shall be substantially in the form of Exhibit 1.
Each such new Note shall be dated and bear interest from the date to which
interest shall have been paid on the surrendered Note or dated the date of the
surrendered Note if no interest shall have been paid thereon. The Company may
require payment of a sum sufficient to cover any stamp tax or governmental
charge imposed in respect of any such transfer of Notes. Notes shall not be
transferred in denominations of less than $100,000, provided that if necessary
to enable the registration of transfer by a holder of its entire holding of
Notes, one Note may be in a denomination of less than $100,000. Any transferee,
by its acceptance of a Note registered in its name (or the name of its nominee),
shall be deemed to have made the representation set forth in Section 6.2.
(b) The Company shall not be required to register a transfer of Notes to
any Person which is a Competitor.
13.3. Replacement of Notes.
Upon receipt by the Company of evidence reasonably satisfactory to it of
the ownership of and the loss, theft, destruction or mutilation of any Note
(which evidence shall be, in the case of an Institutional Investor, notice from
such Institutional Investor of such ownership and such loss, theft, destruction
or mutilation), and
(a) in the case of loss, theft or destruction, of indemnity reasonably
satisfactory to it (provided that if the holder of such Note is, or is a nominee
for, an original Purchaser or another holder of a Note with a minimum net worth
of at least $50,000,000, such Person's own unsecured agreement of indemnity
shall be deemed to be satisfactory), or
(b) in the case of mutilation, upon surrender and cancellation thereof,
the Company at its own expense shall execute and deliver, in lieu thereof, a new
Note, dated and bearing interest from the date to which interest shall have been
paid on such lost, stolen, destroyed or mutilated Note or dated the date of such
lost, stolen, destroyed or mutilated Note if no interest shall have been paid
thereon.
14. PAYMENTS ON NOTES.
14.1. Place of Payment.
Subject to Section 14.2, payments of principal, Make-Whole Amount, if
any, and interest becoming due and payable on the Notes shall be made at the
address of the Purchasers set forth in Schedule A hereto. The Company may at any
time, by notice to each holder of a Note, change the place of payment of the
Notes so long as such place of payment shall be either the principal office of
the Company in such jurisdiction or the principal office of a bank or trust
company in such jurisdiction.
14.2. Home Office Payment.
26
So long as you or your nominee shall be the holder of any Note, and
notwithstanding anything contained in Section 14.1 or in such Note to the
contrary, the Company will pay all sums becoming due on such Note for principal,
Make-Whole Amount, if any, and interest by the method and at the address
specified for such purpose below your name in Schedule A, or by such other
method or at such other address as you shall have from time to time specified to
the Company in writing for such purpose, without the presentation or surrender
of such Note or the making of any notation thereon, except that upon written
request of the Company made concurrently with or reasonably promptly after
payment or prepayment in full of any Note, you shall surrender such Note for
cancellation, reasonably promptly after any such request, to the Company at its
principal executive office or at the place of payment most recently designated
by the Company pursuant to Section 14.1. Prior to any sale or other disposition
of any Note held by you or your nominee you will, at your election, either
endorse thereon the amount of principal paid thereon and the last date to which
interest has been paid thereon or surrender such Note to the Company in exchange
for a new Note or Notes pursuant to Section 13.2. The Company will afford the
benefits of this Section 14.2 to any Institutional Investor that is the direct
or indirect transferee of any Note purchased by you under this Agreement and
that has made the same agreement relating to such Note as you have made in this
Section 14.2.
15. EXPENSES, ETC.
15.1. Transaction Expenses.
Whether or not the transactions contemplated hereby are consummated, the
Company will pay all reasonable costs and expenses (including reasonable
attorneys' fees of a special counsel and, if reasonably required, local or other
counsel) annually incurred by you and each other Purchaser or holder of a Note
in connection with such transactions and in connection with any amendments,
waivers or consents under or in respect of this Agreement or the Notes (whether
or not such amendment, waiver or consent becomes effective), including, without
limitation: (a) the reasonable costs and expenses incurred in enforcing or
defending (or determining whether or how to enforce or defend) any rights under
this Agreement or the Notes or in responding to any subpoena or other legal
process or informal investigative demand issued in connection with this
Agreement or the Notes, or by reason of being a holder of any Note, and (b) the
reasonable costs and expenses, including financial advisors' fees, incurred in
connection with the insolvency or bankruptcy of the Company or any Subsidiary or
in connection with any work-out or restructuring of the transactions
contemplated hereby and by the Notes. The Company will pay, and will save you
and each other holder of a Note harmless from, all claims in respect of any
fees, costs or expenses if any, of brokers and finders (other than those
retained by you).
15.2. Survival.
The obligations of the Company under this Section 15 will survive the
payment or transfer of any Note, the enforcement, amendment or waiver of any
provision of this Agreement or the Notes, and the termination of this Agreement.
27
16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT.
All representations and warranties contained herein shall survive the
execution and delivery of this Agreement and the Notes, the purchase or transfer
by you of any Note or portion thereof or interest therein and the partial
payment of the Notes, and may be relied upon by any subsequent holder of a Note,
regardless of any investigation made at any time by or on behalf of you or any
other holder of a Note. All statements contained in any certificate or other
instrument delivered by or on behalf of the Company pursuant to this Agreement
shall be deemed representations and warranties pursuant to Section 4.1 of the
Company under this Agreement. Subject to the preceding sentence, this Agreement
and the Notes embody the entire agreement and understanding between you and the
Company and supersede all prior agreements and understandings relating to the
subject matter hereof.
17. AMENDMENT AND WAIVER.
17.1. Requirements.
This Agreement and the Notes may be amended, and the observance of any
term hereof or of the Notes may be waived (either retroactively or
prospectively), with (and only with) the written consent of the Company and the
Required Holders, except that (a) no amendment or waiver of any of the
provisions of Section 1, 2, 3, 4, 5, 6 or 21 hereof, or any defined term (as it
is used therein), will be effective as to you unless consented to by you in
writing, and (b) no such amendment or waiver may, without the written consent of
the holder of each Note at the time outstanding affected thereby, (i) subject to
the provisions of Section 12 relating to acceleration or rescission, change the
amount or time of any prepayment or payment of principal of, or reduce the rate
or change the time of payment or method of computation of interest or of the
Make-Whole Amount on, the Notes, (ii) change the percentage of the principal
amount of the Notes the holders of which are required to consent to any such
amendment or waiver, or (iii) amend any of Sections 8, 11(a), 11(b), 12, 17 or
20.
17.2. Solicitation of Holders of Notes.
(a) Solicitation. The Company will provide each holder of the Notes
(irrespective of the amount of Notes then owned by it) with sufficient
information, sufficiently far in advance of the date a decision is required, to
enable such holder to make an informed and considered decision with respect to
any proposed amendment, waiver or consent in respect of any of the provisions
hereof or of the Notes. The Company will deliver executed or true and correct
copies of each amendment, waiver or consent effected pursuant to the provisions
of this Section 17 to each holder of outstanding Notes promptly following the
date on which it is executed and delivered by, or receives the consent or
approval of, the requisite holders of Notes.
(b) Payment. The Company will not directly or indirectly pay or cause to
be paid any remuneration, whether by way of supplemental or additional interest,
fee or otherwise, or grant any security, to any holder of Notes as consideration
for or as an inducement to the entering into by any holder of Notes or any
waiver or amendment of any of the terms and provisions hereof unless such
remuneration is concurrently paid, or security is concurrently granted, on the
same terms, ratably to each holder of Notes then outstanding even if such holder
did not consent to such waiver or amendment.
28
17.3. Binding Effect, etc.
Any amendment or waiver consented to as provided in this Section 17
applies equally to all holders of Notes and is binding upon them and upon each
future holder of any Note and upon the Company without regard to whether such
Note has been marked to indicate such amendment or waiver. No such amendment or
waiver will extend to or affect any obligation, covenant, agreement, Default or
Event of Default not expressly amended or waived or impair any right consequent
thereon. No course of dealing between the Company and the holder of any Note nor
any delay in exercising any rights hereunder or under any Note shall operate as
a waiver of any rights of any holder of such Note. As used herein, the term
"this Agreement" and references thereto shall mean this Agreement as it may from
time to time be amended or supplemented.
17.4. Notes held by Company, etc.
Solely for the purpose of determining whether the holders of the
requisite percentage of the aggregate principal amount of Notes then outstanding
approved or consented to any amendment, waiver or consent to be given under this
Agreement or the Notes, or have directed the taking of any action provided
herein or in the Notes to be taken upon the direction of the holders of a
specified percentage of the aggregate principal amount of Notes then
outstanding, Notes directly or indirectly owned by the Company or any of its
Affiliates shall be deemed not to be outstanding.
18. NOTICES.
All notices and communications provided for hereunder shall be in
writing and sent (a) by telecopy if the sender on the same day sends a
confirming copy of such notice by a recognized overnight delivery service
(charges prepaid), or (b) by registered or certified mail with return receipt
requested (postage prepaid), or (c) by a recognized overnight delivery service
(with charges prepaid). Any such notice must be sent:
(i) if to you or your nominee, to you or it at the address specified for
such communications in Schedule A, or at such other address as you or it shall
have specified to the Company in writing,
(ii) if to any other holder of any Note, to such holder at such address
as such other holder shall have specified to the Company in writing, or
(iii) if to the Company, to the Company at its address set forth at the
beginning hereof to the attention of Sharon G. Kebe, Globe Business Resources,
Inc., The Spectrum Office Towers, 11260 Chester Road, Suite 400, Cincinnati,
Ohio 45246, or at such other address as the Company shall have specified to the
holder of each Note in writing.
Notices under this Section 18 will be deemed given only when actually received.
29
19. REPRODUCTION OF DOCUMENTS.
This Agreement and all documents relating thereto, including, without
limitation, (a) consents, waivers and modifications that may hereafter be
executed, (b) documents received by you at the Closing (except the Notes
themselves), and (c) financial statements, certificates and other information
previously or hereafter furnished to you, may be reproduced by you by any
photographic, photostatic, microfilm, microcard, miniature photographic or other
similar process and you may destroy any original document so reproduced. The
Company agrees and stipulates that, to the extent permitted by applicable law,
any such reproduction shall be admissible in evidence as the original itself in
any judicial or administrative proceeding (whether or not the original is in
existence and whether or not such reproduction was made by you in the regular
course of business) and any enlargement, facsimile or further reproduction of
such reproduction shall likewise be admissible in evidence. This Section 19
shall not prohibit the Company or any other holder of Notes from contesting any
such reproduction to the same extent that it could contest the original, or from
introducing evidence to demonstrate the inaccuracy of any such reproduction.
20. CONFIDENTIAL INFORMATION.
For the purposes of this Section 20, "Confidential Information" means
any information delivered to you by or on behalf of the Company or any
Subsidiary in connection with the transactions contemplated by or otherwise
pursuant to this Agreement that is proprietary in nature and that was clearly
marked or labeled or otherwise adequately identified when received by you as
being confidential information of the Company or such Subsidiary, provided that
such term does not include information that (a) was publicly known or otherwise
known to you prior to the time of such disclosure, (b) subsequently becomes
publicly known through no act or omission by you or any Person acting on your
behalf, (c) otherwise becomes known to you other than through disclosure by the
Company or any Subsidiary or (d) constitutes financial statements delivered to
you under Section 7.1 that are otherwise publicly available. You will maintain
the confidentiality of such Confidential Information in accordance with
procedures adopted by you in good faith to protect confidential information of
third parties delivered to you, provided that you may deliver or disclose
Confidential Information to (i) your directors, officers, employees, agents,
attorneys and affiliates, (to the extent such disclosure reasonably relates to
the administration of the investment represented by your Notes), (ii) your
financial advisors and other professional advisors who agree to hold
confidential the Confidential Information substantially in accordance with the
terms of this Section 20, (iii) any other holder of any Note, (iv) any
Institutional Investor (except a Competitor) to which you sell or offer to sell
such Note or any part thereof or any participation therein (if such Person has
agreed in writing prior to its receipt of such Confidential Information to be
bound by the provisions of this Section 20), (v) any Person from which you offer
to purchase any security of the Company (if such Person has agreed in writing
prior to its receipt of such Confidential Information to be bound by the
provisions of this Section 20), (vi) any federal or state regulatory authority
having jurisdiction over you, (vii) the National Association of Insurance
Commissioners or any similar organization, or any nationally recognized rating
agency that requires access to information about your investment portfolio, or
(viii) any other Person to which such delivery or disclosure may be necessary or
appropriate (w) to effect compliance with any law, rule, regulation or order
applicable to you, (x) in response to any subpoena or other legal process, (y)
in connection with any litigation to which you are a party or (z) if an Event of
30
Default has occurred and is continuing, to the extent you may reasonably
determine such delivery and disclosure to be necessary or appropriate in the
enforcement or for the protection of the rights and remedies under your Notes
and this Agreement. Each holder of a Note, by its acceptance of a Note, will be
deemed to have agreed to be bound by and to be entitled to the benefits of this
Section 20 as though it were a party to this Agreement. On reasonable request by
the Company in connection with the delivery to any holder of a Note of
information required to be delivered to such holder under this Agreement or
requested by such holder (other than a holder that is a party to this Agreement
or its nominee), such holder will enter into an agreement with the Company
embodying the provisions of this Section 20.
21. SUBSTITUTION OF PURCHASER.
You shall have the right to substitute any one of your Affiliates as the
purchaser of the Notes that you have agreed to purchase hereunder, by written
notice to the Company, which notice shall be signed by both you and such
Affiliate, shall contain such Affiliate's agreement to be bound by this
Agreement and shall contain a confirmation by such Affiliate of the accuracy
with respect to it of the representations set forth in Section 6. Upon receipt
of such notice, wherever the word "you" is used in this Agreement (other than in
this Section 21), such word shall be deemed to refer to such Affiliate in lieu
of you. In the event that such Affiliate is so substituted as a purchaser
hereunder and such Affiliate thereafter transfers to you all of the Notes then
held by such Affiliate, upon receipt by the Company of notice of such transfer,
wherever the word "you" is used in this Agreement (other than in this Section
21), such word shall no longer be deemed to refer to such Affiliate, but shall
refer to you, and you shall have all the rights of an original holder of the
Notes under this Agreement.
22. MISCELLANEOUS.
22.1. Successors and Assigns.
All covenants and other agreements contained in this Agreement by or on
behalf of any of the parties hereto bind and inure to the benefit of their
respective successors and assigns (including, without limitation, any subsequent
holder of a Note) whether so expressed or not.
22.2. Payments Due on Non-Business Days.
Anything in this Agreement or the Notes to the contrary notwithstanding,
any payment of principal of or Make-Whole Amount or interest on any Note that is
due on a date other than a Business Day shall be made on the next succeeding
Business Day without including the additional days elapsed in the computation of
the interest payable on such next succeeding Business Day.
22.3. Severability.
Any provision of this Agreement that is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
31
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall (to the full extent permitted by law) not invalidate or
render unenforceable such provision in any other jurisdiction.
22.4. Construction.
Each covenant contained herein shall be construed (absent express
provision to the contrary) as being independent of each other covenant contained
herein, so that compliance with any one covenant shall not (absent such an
express contrary provision) be deemed to excuse compliance with any other
covenant. Where any provision herein refers to action to be taken by any Person,
or which such Person is prohibited from taking, such provision shall be
applicable whether such action is taken directly or indirectly by such Person.
22.5. Counterparts.
This Agreement may be executed in any number of counterparts, each of
which shall be an original but all of which together shall constitute one
instrument. Each counterpart may consist of a number of copies hereof, each
signed by less than all, but together signed by all, of the parties hereto.
22.6. Governing Law.
This Agreement shall be construed and enforced in accordance with, and
the rights of the parties shall be governed by, the law of the State of Illinois
excluding choice-of-law principles of the law of such State that would require
the application of the laws of a jurisdiction other than such State.
* * * * *
32
If you are in agreement with the foregoing, please sign the form
of agreement on the accompanying counterpart of this Agreement and return it to
the Company, whereupon the foregoing shall become a binding agreement between
you and the Company.
Very truly yours,
GLOBE BUSINESS RESOURCES, INC.
By:
--------------------------------
Its:
--------------------------------
33
The foregoing is hereby agreed to as of the date hereof.
SECURITY LIFE OF DENVER INSURANCE COMPANY
By:
--------------------------------
Its:
--------------------------------
By:
--------------------------------
Its:
--------------------------------
LIFE INSURANCE COMPANY OF GEORGIA
By:
--------------------------------
Its:
--------------------------------
By:
--------------------------------
Its:
--------------------------------
PEERLESS INSURANCE COMPANY
By:
--------------------------------
Its:
--------------------------------
By:
--------------------------------
Its:
--------------------------------
INDIANA INSURANCE COMPANY
By:
--------------------------------
Its:
--------------------------------
By:
--------------------------------
Its:
--------------------------------
SOUTHLAND LIFE INSURANCE COMPANY
By:
--------------------------------
Its:
--------------------------------
By:
--------------------------------
Its:
--------------------------------
34
SCHEDULE A-1
INFORMATION RELATING TO PURCHASERS
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
Security Life of Denver Insurance Company $14,000,000
(1) All payments on account of Notes held by such purchaser shall be made by
wire transfer of immediately available funds for credit to:
Boston Safe Deposit & Trust Co.
Boston, Massachusetts
MBS Income
Account DD #: 125261
ABA #: 011-001-234
CC 1253
Credit to: Security Life of Denver Insurance Company
Account #INGF1007002
Each such wire transfer shall set forth the name of the Corporation, the
full title (including the Coupon rate, issuance date, and final maturity
date) of the Notes on account of which such payment is made, a reference
to the PPN, and the due date and application (as among principal,
premium and interest) of the payment being made.
(2) Address for all notices relating to payments:
ING Investment Management, Inc.
5780 Powers Ferry Road
Suite 300
Atlanta, Georgia 30327-4349
Attention: Securities Accounting
Fax: (770) 690-4899
5
(3) Address for all other communications and notices:
ING Investment Management, Inc.
5780 Powers Ferry Road
Suite 300
Atlanta, Georgia 30327-4349
Attention: Private Placements
Fax: (770) 690-4899
Tax ID #: 84-0499703
6
SCHEDULE A-2
INFORMATION RELATING TO PURCHASERS
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
Life Insurance Company of Georgia $9,000,000
(1) All payments on account of Notes held by such purchaser shall be made by
wire transfer of immediately available funds for credit to:
Wachovia Bank
Winston-Salem, North Carolina
For the account of: Life Insurance Company of Georgia
Account #: 58-16680-10
ABA #: 053100494
Template#: 401216
Attention: Trust Income Processing
Each such wire transfer shall set forth the name of the Corporation, the
full title (including the Coupon rate, issuance date, and final maturity
date) of the Notes on account of which such payment is made, a reference
to the PPN, and the due date and application (as among principal,
premium and interest) of the payment being made.
(2) Address for all notices relating to payments:
ING Investment Management, Inc.
5780 Powers Ferry Road
Suite 300
Atlanta, Georgia 30327-4349
Attention: Securities Accounting
Fax: (770) 690-4899
7
(3) Address for all other communications and notices:
ING Investment Management, Inc.
5780 Powers Ferry Road
Suite 300
Atlanta, Georgia 30327-4349
Attention: Private Placements
Fax: (770) 690-4899
Tax ID #: 58-0298930
8
SCHEDULE A-3
INFORMATION RELATING TO PURCHASERS
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
Peerless Insurance Company $3,000,000
(1) All payments on account of Notes held by such purchaser shall be made by
wire transfer of immediately available funds for credit to:
Boston Safe Deposit & Trust Co.
Boston, Massachusetts
MBS Income
Account DD#: 125261
ABA #: 011-001-234
CC 1253
Credit to: Peerless Insurance Company
Account #INGF1019002
Each such wire transfer shall set forth the name of the Corporation, the
full title (including the Coupon rate, issuance date, and final maturity
date) of the Notes on account of which such payment is made, a reference
to the PPN, and the due date and application (as among principal,
premium and interest) of the payment being made.
(2) Address for all notices relating to payments:
ING Investment Management, Inc.
5780 Powers Ferry Road
Suite 300
Atlanta, Georgia 30327-4349
Attention: Securities Accounting
Fax: (770) 690-4899
9
(3) Address for all other communications and notices:
ING Investment Management, Inc.
5780 Powers Ferry Road
Suite 300
Atlanta, Georgia 30327-4349
Attention: Private Placements
Fax: (770) 690-4899
Tax ID #: 02-0177030
10
SCHEDULE A-4
INFORMATION RELATING TO PURCHASERS
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
Indiana Insurance Company $2,000,000
(1) All payments on account of Notes held by such purchaser shall be made by
wire transfer of immediately available funds for credit to:
Boston Safe Deposit & Trust Co.
Boston, Massachusetts
MBS Income
Account DD#: 125261
ABA #: 011-001-234
CC 1253
Credit to: Indiana Insurance Company
Account #INGF1016002
Each such wire transfer shall set forth the name of the Corporation, the
full title (including the Coupon rate, issuance date, and final maturity
date) of the Notes on account of which such payment is made, a reference
to the PPN, and the due date and application (as among principal,
premium and interest) of the payment being made.
(2) Address for all notices relating to payments:
ING Investment Management, Inc.
5780 Powers Ferry Road
Suite 300
Atlanta, Georgia 30327-4349
Attention: Securities Accounting
Fax: (770) 690-4899
11
(3) Address for all other communications and notices:
ING Investment Management, Inc.
5780 Powers Ferry Road
Suite 300
Atlanta, Georgia 30327-4349
Attention: Private Placements
Fax: (770) 690-4899
Tax ID #: 35-0410010
12
SCHEDULE A-5
INFORMATION RELATING TO PURCHASERS
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
Southland Life Insurance Company $2,000,000
(1) All payments on account of Notes held by such purchaser shall be made by
wire transfer of immediately available funds for credit to:
Boston Safe Deposit & Trust Co.
Boston, Massachusetts
MBS Income
Account DD#: 125261
ABA #: 011-001-234
CC 1253
Credit to: Southland Life Insurance Company
Account #INGF1013002
Each such wire transfer shall set forth the name of the Corporation, the
full title (including the Coupon rate, issuance date, and final maturity
date) of the Notes on account of which such payment is made, a reference
to the PPN, and the due date and application (as among principal,
premium and interest) of the payment being made.
(2) Address for all notices relating to payments:
ING Investment Management, Inc.
5780 Powers Ferry Road
Suite 300
Atlanta, Georgia 30327-4349
Attention: Securities Accounting
Fax: (770) 690-4899
13
(3) Address for all other communications and notices:
ING Investment Management, Inc.
5780 Powers Ferry Road
Suite 300
Atlanta, Georgia 30327-4349
Attention: Private Placements
Fax: (770) 690-4899
Tax ID #: 75-0572420
14
SCHEDULE B
DEFINED TERMS
As used herein, the following terms have the respective meanings set
forth below or set forth in the Section hereof following such term:
"Affiliate" means any Person (other than a Restricted Subsidiary) (i)
who is a director or executive officer of the Company or any Subsidiary, (ii)
which directly or indirectly through one or more intermediaries controls, or is
controlled by, or is under common control with, the Company, (iii) which
beneficially owns or holds securities representing 5% or more of the combined
voting power of the Voting Stock of the Company or any Subsidiary, or (iv) of
which securities representing 5% or more of the combined voting power of its
Voting Stock (or in the case of a Person not a corporation, 5% or more of its
equity) is beneficially owned or held by the Company or any Subsidiary. The term
"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.
"Business Day" means any day other than a Saturday, a Sunday or a day on
which banking institutions in Chicago, Illinois are required or authorized to be
closed.
"Capitalized Lease" means, at any time, a lease with respect to which
the lessee is required concurrently to recognize the acquisition of an asset and
the incurrence of a liability in accordance with GAAP.
"Closing" is defined in Section 3.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, and the rules and regulations promulgated thereunder from time to time.
"Company" means Globe Business Resources, Inc., an Ohio corporation.
"Competitor" means any Person listed on Schedule 13.2 hereof, as such
Schedule may be amended in writing from time to time by the Company.
"Consolidated Cash Flow Available for Fixed Charges" for any period
shall mean the sum of (i) Consolidated Net Income, (ii) taxes, depreciation and
amortization, as determined in accordance with GAAP, and (iii) Consolidated
Fixed Charges.
"Consolidated Current Ratio" shall mean the ratio of (x) the total of
cash, receivables, and rental furniture, (valued at lower of cost or fair market
value, net of accumulated depreciation) of the Company and its Restricted
Subsidiaries to (y) the total of accounts payable, customer deposits and accrued
expenses of the Company and its Restricted Subsidiaries.
1
"Consolidated Fixed Charges" means, for any period, on a consolidated
basis, the sum of (a) all Rentals (other than Rentals on Capitalized Leases and
Rentals paid by the Company or any Restricted Subsidiary with respect to
apartments used in the corporate housing operations of the Company or any
Restricted Subsidiary) payable during such period by the Company and its
Restricted Subsidiaries with respect to leases having an original term in excess
of one year, and (b) all Interest Charges on all Debt (including the interest
component of Rentals on Capitalized Leases) of the Company and its Restricted
Subsidiaries.
"Consolidated Funded Debt" means Funded Debt of the Company and its
Restricted Subsidiaries determined on a consolidated basis in accordance with
GAAP.
"Consolidated Net Income" means consolidated net income and net losses
of the Company and its Restricted Subsidiaries, determined in accordance with
GAAP, after excluding the sum of (i) any net loss or any undistributed net
income of any Person in which the Company has an ownership interest other than a
Restricted Subsidiary; (ii) any net loss or any undistributed net income of any
Restricted Subsidiary prior to the date it becomes a Restricted Subsidiary;
(iii) any gain or net loss (net of any tax effect) resulting from the sale of
any capital assets by the Company or Restricted Subsidiary other than in the
ordinary course of business; (iv) extraordinary, unusual, or non-recurring gains
or losses; (v) gains resulting from the write-up of assets; (vi) any earnings of
any Restricted Subsidiary unavailable for payment to the Company; and (vii)
proceeds of any life insurance policy.
"Consolidated Net Worth" means, at any date, with respect to the Company
and its Restricted Subsidiaries, the total amount of (i) capital stock (except
treasury stock but including preferred stock) plus (ii) paid-in surplus, plus
(iii) general contingency reserves and plus (iv) retained earnings (deficit) at
such date, plus (v) fair market value in excess of historical cost of acquired
net assets attributable to related party transactions, all as determined on a
consolidated basis in accordance with GAAP.
"Consolidated Total Assets" means the total assets of the Company and
its Restricted Subsidiaries determined on a consolidated basis in accordance
with GAAP.
"Debt" means (i) all items of borrowings, including Capitalized Leases,
which in accordance with GAAP would be included in determining total liabilities
as shown on the liability side of a balance sheet as of the date at which Debt
is to be determined (other than items of borrowings of the Company from a
Wholly-Owned Restricted Subsidiary), (ii) all Guaranties (other than Guaranties
of Debt of the Company or a Wholly-Owned Restricted Subsidiary by the Company or
a Subsidiary), letters of credit and endorsements (other than of notes, bills
and checks presented to banks for collection or deposit in the ordinary course
of business), in each case to support Debt of other Persons; and (iii) all items
of borrowings secured by any mortgage, pledge or Lien existing on property owned
subject to such mortgage, pledge, or Lien, whether or not the borrowings secured
thereby shall have been assumed by the Company or any Subsidiary.
"Default" means an event or condition the occurrence or existence of
which would, with the lapse of time or the giving of notice or both, become an
Event of Default.
2
"Default Rate" means 9.54% per annum.
"Disposition" has the meaning set forth in Section 10.8 hereof.
"EBITDA" means earnings of the Company and its Restricted Subsidiaries
before interest, taxes, depreciation and amortization, all as determined in
accordance with GAAP.
"Environmental Laws" means any and all Federal, state, local, and
foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or
governmental restrictions relating to pollution and the protection of the
environment or the release of any materials into the environment, including but
not limited to those related to hazardous substances or wastes, air emissions
and discharges to waste or public systems.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the rules and regulations promulgated thereunder
from time to time in effect.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that is treated as a single employer together with the Company
under section 414 of the Code.
"Event of Default" is defined in Section 11.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and the rules and regulations promulgated thereunder from
time to time in effect.
"Exchange of Assets" means any contemporaneous exchange of assets used
in the operating business of the Company or any Restricted Subsidiary for assets
to be used in the operating business of the Company or any Restricted
Subsidiary.
"Funded Debt" means without duplication: (i) all Debt having a final
maturity of more than one year, from the date of creation thereof (or which is
renewable or extendible at the option of the obligor for a period or periods of
more than one year from the date of creation), and including current maturities
thereof, and (ii) any Debt outstanding pursuant to any instrument or agreement
providing for maturity on demand or within one year from the date of the
creation thereof, except to the extent such Debt has not been outstanding for a
period of thirty consecutive days during the immediately preceding twelve
months.
"GAAP" means generally accepted accounting principles as in effect from
time to time in the United States of America.
"Governmental Authority" means
(a) the government of
(i) the United States of America or any State or other
political subdivision thereof, or
3
(ii) any jurisdiction in which the Company or any
Subsidiary conducts all or any part of its business, or which asserts
jurisdiction over any properties of the Company or any Subsidiary, or
(b) any entity or agency exercising executive, legislative, judicial,
regulatory or administrative functions of, or pertaining to, any such
government.
"Guaranty" means, with respect to any Person, any obligation (except the
endorsement in the ordinary course of business of negotiable instruments for
deposit or collection) of such Person guaranteeing or in effect guaranteeing any
indebtedness, dividend or other obligation of any other Person in any manner,
whether directly or indirectly, including (without limitation) obligations
incurred through an agreement, contingent or otherwise, by such Person:
(a) to purchase such indebtedness or obligation or any property
constituting security therefor;
(b) to advance or supply funds (i) for the purchase or payment of such
indebtedness or obligation, or (ii) to maintain any working capital or other
balance sheet condition or any income statement condition of any other Person or
otherwise to advance or make available funds for the purchase or payment of such
indebtedness or obligation;
(c) to lease properties or to purchase properties or services primarily for
the purpose of assuring the owner of such indebtedness or obligation of the
ability of any other Person to make payment of the indebtedness or obligation;
or
(d) otherwise to assure the owner of such indebtedness or obligation
against loss in respect thereof.
In any computation of the indebtedness or other liabilities of the obligor under
any Guaranty, the indebtedness or other obligations that are the subject of such
Guaranty shall be assumed to be direct obligations of such obligor.
"Holder" means, with respect to any Note, the Person in whose name such
Note is registered in the register maintained by the Company pursuant to Section
13.1.
"Institutional Investor" means (a) any original purchaser of a Note and
(b) any bank, trust company, savings and loan association or other financial
institution, any pension plan, any investment company, any insurance company,
any broker or dealer, or any other similar financial institution or entity,
regardless of legal form.
"Interest Charges" means, for any period, all interest, including
capitalized interest, and all amortization of debt discount and expense on any
particular Debt for which such calculations are being made. Computations of
Interest Charges on a pro forma basis for Debt having a variable interest rate
shall be calculated at the rate in effect on the date of any determination.
"Lien" means, with respect to any Person, any mortgage, lien, pledge,
charge, security interest or other encumbrance, or any interest or title of any
4
vendor, lessor, lender or other secured party to or of such Person under any
conditional sale or other title retention agreement or Capital Lease, upon or
with respect to any property or asset of such Person (including in the case of
stock, stockholder agreements, voting trust agreements and all similar
arrangements).
"Make-Whole Amount" is defined in Section 8.6.
"Market Property" means the identifiable assets associated with the
Company's individual operational units in specific geographic markets (e.g.,
metropolitan Phoenix), if sold together as an operational unit.
"Material" means material in relation to the business, operations,
affairs, financial condition, assets, or properties of the Company and its
Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect on (a) the
business, operations, affairs, financial condition, assets or properties of the
Company and its Subsidiaries taken as a whole, or (b) the ability of the Company
to perform its obligations under this Agreement or the Notes, or (c) the
validity or enforceability of this Agreement or the Notes.
"Memorandum" is defined in Section 5.3.
"Multiemployer Plan" means any Plan that is a "multiemployer plan" (as
such term is defined in section 4001(a)(3) of ERISA).
"Negative Exchange of Assets" means any Exchange of Assets in which the
book value of assets received by the Company or any Restricted Subsidiary in an
Exchange of Assets is less than the book value of assets transferred by the
Company or any Restricted Subsidiary in such Exchange of Assets.
"Notes" is defined in Section 1.
"Officer's Certificate" means a certificate of a Senior Financial
Officer or of any other officer of the Company whose responsibilities extend to
the subject matter of such certificate. No Officer's Certificate shall impose
any personal (as opposed to corporate) liability.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA or any successor thereto.
"Person" means an individual, partnership, corporation, limited
liability company, joint venture, association, trust, unincorporated
organization, or a government or agency or political subdivision thereof.
"Plan" means an "employee benefit plan" (as defined in section 3(3) of
ERISA) that is or, within the preceding five years, has been established or
maintained, or to which contributions are or, within the preceding five years,
have been made or required to be made, by the Company or any ERISA Affiliate or
with respect to which the Company or any ERISA Affiliate may have any liability.
5
"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" or "Properties" means, unless otherwise specifically limited,
real or personal property of any kind, tangible or intangible, choate or
inchoate.
"QPAM Exemption" means Prohibited Transaction Class Exemption 84-14
issued by the United States Department of Labor.
"Rentals" means and includes as of the date of any determination
thereof, all payments (including as such all payments which the lessee is
obligated to make to the lessor on termination of the lease or surrender of the
property) payable by the Company or a Restricted Subsidiary, as lessee or
sublessee under a lease of real or personal property, but shall be exclusive of
any amounts required to be paid by the Company or a Restricted Subsidiary
(whether or not designated as rents or additional rents) on account of
maintenance, repairs, insurance, taxes and similar charges.
"Required Holders" means, at any time, the holders of at least 66-2/3%
in principal amount of the Notes at the time outstanding (exclusive of Notes
then owned by the Company or any of its Affiliates).
"Responsible Officer" means any Senior Financial Officer and any other
officer of the Company with responsibility for the administration of the
relevant portion of this Agreement.
"Restricted Subsidiary" means any Subsidiary (i) of which more than 80%
of the voting securities are owned by the Company and/or one or more
Wholly-Owned Restricted Subsidiaries, and (ii) which the Company has designated
as a "Restricted Subsidiary" by notice in writing given to the holders of the
Notes, provided that the designation of a Subsidiary as "restricted" shall not
be changed to "unrestricted".
"Securities Act" means the Securities Act of 1933, as amended from time
to time and the rules and regulations promulgated thereunder from time to time
in effect.
"Secured Debt" means Debt secured by Liens.
"Senior Financial Officer" means the chief financial officer, principal
accounting officer, treasurer or comptroller of the Company.
"Senior Funded Debt" shall mean and include all Funded Debt not
expressly junior or subordinate to any other Debt of the Company and its
Restricted Subsidiaries.
"Subsidiary" means, as to any Person, any corporation, association or
other business entity in which such Person or one or more of its Subsidiaries or
such Person and one or more of its Subsidiaries owns sufficient equity or voting
interests to enable it or them (as a group) ordinarily, in the absence of
contingencies, to elect a majority of the directors (or Persons performing
similar functions) of such entity, and any partnership, limited liability
6
company, or joint venture if more than a 80% interest in the profits or capital
thereof is owned by such Person or one or more of its Subsidiaries or such
Person and one or more of its Subsidiaries (unless such partnership can and does
ordinarily take major business actions without the prior approval of such Person
or one or more of its Subsidiaries). Unless the context otherwise clearly
requires, any reference to a "Subsidiary" is a reference to a Subsidiary of the
Company.
"Total Debt" means all debt of the Company and its Restricted
Subsidiaries determined on a consolidated basis in accordance with GAAP.
"Voting Stock" means capital stock of any class of a corporation having
ordinary voting powers to vote for the election of members of the board of
directors of such corporation or Persons performing similar functions.
"Wholly-Owned Subsidiary" means, at any time, any Subsidiary one hundred
percent (100%) of all of the equity interests (except directors' qualifying
shares) and voting interests of which are owned by any one or more of the
Company and the Company's other Wholly-Owned Subsidiaries at such time.
7
SCHEDULE 4.9
CHANGES IN CORPORATE STRUCTURE
1
SCHEDULE 5.4
SUBSIDIARIES OF THE COMPANY AND
OWNERSHIP OF SUBSIDIARY STOCKS
1
SCHEDULE 5.5
FINANCIAL STATEMENTS
The financial statements referenced in Section 5.5 consist of all of the
financial statements contained in the Company's Annual Report on Form 10-K for
the fiscal year ended February 28, 1997 and all of the financial statements
contained in the Company's Quarterly Report on Form 10-Q for the quarterly
period ended May 31, 1997.
1
SCHEDULE 5.15
EXISTING DEBT AND LIENS
1
SCHEDULE 10.7
EXISTING LIENS
1
SCHEDULE 13.2
COMPETITORS
1
EXHIBIT 1
GLOBE BUSINESS RESOURCES, INC.
7.54% SENIOR NOTE
DUE SEPTEMBER 1, 2007
No. [_____] _________, 1997
$[_______] PPN: __________
FOR VALUE RECEIVED, the undersigned, GLOBE BUSINESS RESOURCES,
INC. (herein called the "Company"), a corporation organized and existing under
the laws of the State of Ohio, hereby promises to pay to
______________________________, or registered assigns, the principal sum of
____________________ DOLLARS on ________, 2007, with interest (computed on the
basis of a 360-day year of twelve 30-day months) (a) on the unpaid balance
thereof at the rate of 7.54% per annum from the date hereof, payable
semiannually, on the first day of September and the first day of March in each
year, commencing March 1, 1998, until the principal hereof shall have become due
and payable, and (b) to the extent permitted by law on any overdue payment
(including any overdue prepayment) of principal, any overdue payment of interest
and any overdue payment of any Make-Whole Amount (as defined in the Note
Agreement referred to below), payable semiannually as aforesaid (or, at the
option of the registered holder hereof, on demand), at a rate per annum equal to
9.54%.
Payments of principal of, interest on and any Make-Whole Amount with
respect to this Note are to be made in lawful money of the United States of
America in the manner and at such place as shall have been designated in the
Note Agreement referred to below.
This Note is one of a series of Senior Notes (herein called the "Notes")
issued pursuant to the Note Purchase Agreement, dated as of September 1, 1997
(as from time to time amended, the "Note Agreement"), between the Company and
the respective Purchasers named therein and is entitled to the benefits thereof.
Each holder of this Note will be deemed, by its acceptance hereof, (i) to have
agreed to the confidentiality provisions set forth in Section 20 of the Note
Agreement and (ii) to have made the representations set forth in Sections 6.1
and 6.2 of the Note Agreement.
This Note is a registered Note and, as provided in the Note Agreement,
upon surrender of this Note for registration of transfer, duly endorsed, or
accompanied by a written instrument of transfer duly executed, by the registered
holder hereof or such holder's attorney duly authorized in writing, a new Note
for a like principal amount will be issued to, and registered in the name of,
the transferee. Prior to due presentment for registration of transfer, the
Company may treat the person in whose name this Note is registered as the owner
hereof for the purpose of receiving payment and for all other purposes, and the
Company will not be affected by any notice to the contrary.
The Company will make required prepayments of principal on the dates and
in the amounts specified in the Note Agreement. This Note is also subject to
1
optional prepayment, in whole or from time to time in part, at the times and on
the terms specified in the Note Agreement, but not otherwise.
If an Event of Default, as defined in the Note Agreement, occurs and is
continuing, the principal of this Note may be declared or otherwise become due
and payable in the manner, at the price (including any applicable Make-Whole
Amount) and with the effect provided in the Note Agreement.
This Note and the Note Agreement are governed by and construed in
accordance with the internal laws (and not the law of conflicts) of the State of
Illinois.
GLOBE BUSINESS RESOURCES, INC.
By:
---------------------------------
Title:
---------------------------------
2
EXHIBIT 4.4
LEGAL OPINIONS
A. The opinion of Gardner, Carton & Douglas, special counsel for the
Purchasers, shall be to the effect that:
1. The Company is a corporation organized and validly existing in good
standing under the laws of the State of Ohio with all requisite corporate
power and authority to carry on the business now being conducted by it, 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 Note 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 issuance and sale of the Notes and compliance with the terms
and provisions of the Notes and 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 Gardner, Carton & Douglas also shall state that the opinion
of Keating, Muething & Klekamp, P.L.L., special counsel for the Company,
delivered to you pursuant to the Agreement, is satisfactory in form and scope to
Gardner, Carton & Douglas, and, in their opinion, the Purchasers and it are
justified in relying thereon and shall cover such other matters relating to the
sale of the Notes as the Purchasers may reasonably request.
B. The opinion of Keating, Muething & Klekamp, P.L.L., special counsel for
the Company, shall cover all matters specified in clauses 1 through 4 set forth
above and shall also be to the effect that:
1
1. The Company has full corporate power and authority to conduct the
activities in which it is now engaged and own its Property.
2. Each of the Subsidiaries of the Company is a corporation duly
organized and validly existing in good standing under the laws of its
jurisdiction of incorporation, and each has all requisite corporate power
and authority to carry on the business now being conducted by it and own
its Property.
3. Each of the Company and its Subsidiaries is duly qualified and in
good standing as a foreign corporation authorized to do business in each
jurisdiction where the nature of the business transacted by it or the
character of its Properties owned or leased makes such qualification or
licensing necessary except for such jurisdictions where individually or in
the aggregate, failure to so qualify would not have a material adverse
affect on its business, properties, or condition, financial or otherwise.
4. No authorization, approval or consent of any governmental or
regulatory body is necessary or required in connection with the lawful
execution and delivery by the Company of the Agreement or the lawful
offering, issuance and sale of the Notes, and no designation, filing,
declaration, registration and/or qualification with any governmental
authority is required by the Company in connection with such offer,
issuance and sale.
5. The issuance and sale of the Notes and compliance with the terms
and provisions of the Notes and the Agreement will not conflict with, or
result in any breach of any of the provisions of, or constitute a default
under, or result in the creation or imposition of any lien or encumbrance
upon any of the property of the Company pursuant to the provisions of the
Certificate of Incorporation or other charter document or By-laws of the
Company or any Subsidiary or any loan agreement under which the Company or
any Subsidiary is bound, or other agreement or instrument known to such
counsel (after due inquiry) to which the Company or any Subsidiary is bound
or any Ohio or Federal law (including usury laws) or regulation, order,
writ, injunction or decree of any court or governmental authority
applicable to the Company known to such counsel.
6. The Notes do not violate any applicable usury law, and the
transaction is not usurious under Ohio law.
7. There are no actions, suits or proceedings pending or, to the best
of such counsel's knowledge after due inquiry, threatened against, or
affecting the Company or its Subsidiaries, at law or in equity or before or
by any Federal, state, municipal or other governmental department,
commission, board, bureau, agency or instrumentality, domestic or foreign,
which are likely to result, either individually or collectively, in any
adverse change in the business, Properties, operations or condition,
financial or otherwise, of the Company or any Subsidiary.
2
8. The choice of law in the Note Agreement and Notes of Illinois law
as the law governing the Note Agreement and the Notes is valid and
enforceable and would be recognized and applied in an action brought before
a court of competent jurisdiction in the State of Ohio.
9. All of the issued and outstanding shares of capital stock of each
Subsidiary have been duly and validly issued, are fully paid and
nonassessable and, to the knowledge of such counsel, are owned by the
Company free and clear of any Lien or encumbrance.
10. To the best knowledge of such counsel, after due inquiry, the
Company and each Subsidiary have all franchises, permits, licenses and
other authority as are material to enable them to carry on their respective
business as now being conducted and as proposed to be conducted, and none
of them is in default under any of such franchises, permits, licenses or
other authority, which default would have a material adverse effect on the
operations or financial condition of the Company and its Subsidiaries on a
consolidated basis.
11. Neither the Company nor any Subsidiary is: (i) a "public utility
company" or a "holding company," or an "affiliate" or a "subsidiary
company" of a "holding company," or an "affiliate" of such a "subsidiary
company," as such terms are defined in the Public Utility Holding Company
Act of 1935, as amended, or (ii) a "public utility" as defined in the
Federal Power Act, as amended, or (iii) an "investment company" or an
"affiliated person" thereof or an "affiliated person" of any such
"affiliated person," as such terms are defined in the Investment Company
Act of 1940, as amended.
The opinion of Keating, Muething & Klekamp, P.L.L. shall cover such other
matters relating to the sale of the Notes as the Purchasers may reasonably
request. With respect to matters of fact on which such opinion is based, such
counsel shall be entitled to rely on appropriate certificates of public
officials and officers of the Company and with respect to matters governed by
the laws of any jurisdiction other than the United States of America, the State
of Ohio and the corporate law of the State of Delaware, such counsel may rely
upon the opinions of counsel deemed (and stated in their opinion to be deemed)
by them to be competent and reliable.
GLOBE BUSINESS RESOURCES, INC.
7.54% SENIOR NOTE
DUE SEPTEMBER 1, 2007
No. R-1 September 29, 1997
$14,000,000 PPN: 379395A*7
FOR VALUE RECEIVED, the undersigned, GLOBE BUSINESS RESOURCES,
INC. (herein called the "Company"), a corporation organized and existing under
the laws of the State of Ohio, hereby promises to pay to Security Life of Denver
Insurance Company, or registered assigns, the principal sum of FOURTEEN MILLION
DOLLARS on September 1, 2007, with interest (computed on the basis of a 360-day
year of twelve 30-day months) (a) on the unpaid balance thereof at the rate of
7.54% per annum from the date hereof, payable semiannually, on the first day of
September and the first day of March in each year, commencing March 1, 1998,
until the principal hereof shall have become due and payable, and (b) to the
extent permitted by law on any overdue payment (including any overdue
prepayment) of principal, any overdue payment of interest and any overdue
payment of any Make-Whole Amount (as defined in the Note Agreement referred to
below), payable semiannually as aforesaid (or, at the option of the registered
holder hereof, on demand), at a rate per annum equal to 9.54%.
Payments of principal of, interest on and any Make-Whole Amount
with respect to this Note are to be made in lawful money of the United States of
America in the manner and at such place as shall have been designated in the
Note Agreement referred to below.
This Note is one of a series of Senior Notes (herein called the
"Notes") issued pursuant to the Note Purchase Agreement, dated as of September
1, 1997 (as from time to time amended, the "Note Agreement"), between the
Company and the respective Purchasers named therein and is entitled to the
benefits thereof. Each holder of this Note will be deemed, by its acceptance
hereof, (i) to have agreed to the confidentiality provisions set forth in
Section 20 of the Note Agreement and (ii) to have made the representations set
forth in Sections 6.1 and 6.2 of the Note Agreement.
This Note is a registered Note and, as provided in the Note
Agreement, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Company may treat the person in whose name this
Note is registered as the owner hereof for the purpose of receiving payment and
for all other purposes, and the Company will not be affected by any notice to
the contrary.
The Company will make required prepayments of principal on the
dates and in the amounts specified in the Note Agreement. This Note is also
subject to optional prepayment, in whole or from time to time in part, at the
times and on the terms specified in the Note Agreement, but not otherwise.
If an Event of Default, as defined in the Note Agreement, occurs
and is continuing, the principal of this Note may be declared or otherwise
become due and payable in the manner, at the price (including any applicable
Make-Whole Amount) and with the effect provided in the Note Agreement.
This Note and the Note Agreement are governed by and construed in
accordance with the internal laws (and not the law of conflicts) of the State of
Illinois.
GLOBE BUSINESS RESOURCES, INC.
By:
------------------------------
Title:
------------------------------
GLOBE BUSINESS RESOURCES, INC.
7.54% SENIOR NOTE
DUE SEPTEMBER 1, 2007
No. R-2 September 29, 1997
$9,000,000 PPN: 379395A*7
FOR VALUE RECEIVED, the undersigned, GLOBE BUSINESS RESOURCES,
INC. (herein called the "Company"), a corporation organized and existing under
the laws of the State of Ohio, hereby promises to pay to Life Insurance Company
of Georgia, or registered assigns, the principal sum of NINE MILLION DOLLARS on
September 1, 2007, with interest (computed on the basis of a 360-day year of
twelve 30-day months) (a) on the unpaid balance thereof at the rate of 7.54% per
annum from the date hereof, payable semiannually, on the first day of September
and the first day of March in each year, commencing March 1, 1998, until the
principal hereof shall have become due and payable, and (b) to the extent
permitted by law on any overdue payment (including any overdue prepayment) of
principal, any overdue payment of interest and any overdue payment of any
Make-Whole Amount (as defined in the Note Agreement referred to below), payable
semiannually as aforesaid (or, at the option of the registered holder hereof, on
demand), at a rate per annum equal to 9.54%.
Payments of principal of, interest on and any Make-Whole Amount
with respect to this Note are to be made in lawful money of the United States of
America in the manner and at such place as shall have been designated in the
Note Agreement referred to below.
This Note is one of a series of Senior Notes (herein called the
"Notes") issued pursuant to the Note Purchase Agreement, dated as of September
1, 1997 (as from time to time amended, the "Note Agreement"), between the
Company and the respective Purchasers named therein and is entitled to the
benefits thereof. Each holder of this Note will be deemed, by its acceptance
hereof, (i) to have agreed to the confidentiality provisions set forth in
Section 20 of the Note Agreement and (ii) to have made the representations set
forth in Sections 6.1 and 6.2 of the Note Agreement.
This Note is a registered Note and, as provided in the Note
Agreement, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Company may treat the person in whose name this
Note is registered as the owner hereof for the purpose of receiving payment and
for all other purposes, and the Company will not be affected by any notice to
the contrary.
The Company will make required prepayments of principal on the
dates and in the amounts specified in the Note Agreement. This Note is also
subject to optional prepayment, in whole or from time to time in part, at the
times and on the terms specified in the Note Agreement, but not otherwise.
If an Event of Default, as defined in the Note Agreement, occurs
and is continuing, the principal of this Note may be declared or otherwise
become due and payable in the manner, at the price (including any applicable
Make-Whole Amount) and with the effect provided in the Note Agreement.
This Note and the Note Agreement are governed by and construed in
accordance with the internal laws (and not the law of conflicts) of the State of
Illinois.
GLOBE BUSINESS RESOURCES, INC.
By:
------------------------------
Title:
------------------------------
GLOBE BUSINESS RESOURCES, INC.
7.54% SENIOR NOTE
DUE SEPTEMBER 1, 2007
No. R-3 September 29, 1997
$3,000,000 PPN: 379395A*7
FOR VALUE RECEIVED, the undersigned, GLOBE BUSINESS RESOURCES,
INC. (herein called the "Company"), a corporation organized and existing under
the laws of the State of Ohio, hereby promises to pay to Peerless Insurance
Company, or registered assigns, the principal sum of THREE MILLION DOLLARS on
September 1, 2007, with interest (computed on the basis of a 360-day year of
twelve 30-day months) (a) on the unpaid balance thereof at the rate of 7.54% per
annum from the date hereof, payable semiannually, on the first day of September
and the first day of March in each year, commencing March 1, 1998, until the
principal hereof shall have become due and payable, and (b) to the extent
permitted by law on any overdue payment (including any overdue prepayment) of
principal, any overdue payment of interest and any overdue payment of any
Make-Whole Amount (as defined in the Note Agreement referred to below), payable
semiannually as aforesaid (or, at the option of the registered holder hereof, on
demand), at a rate per annum equal to 9.54%.
Payments of principal of, interest on and any Make-Whole Amount
with respect to this Note are to be made in lawful money of the United States of
America in the manner and at such place as shall have been designated in the
Note Agreement referred to below.
This Note is one of a series of Senior Notes (herein called the
"Notes") issued pursuant to the Note Purchase Agreement, dated as of September
1, 1997 (as from time to time amended, the "Note Agreement"), between the
Company and the respective Purchasers named therein and is entitled to the
benefits thereof. Each holder of this Note will be deemed, by its acceptance
hereof, (i) to have agreed to the confidentiality provisions set forth in
Section 20 of the Note Agreement and (ii) to have made the representations set
forth in Sections 6.1 and 6.2 of the Note Agreement.
This Note is a registered Note and, as provided in the Note
Agreement, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Company may treat the person in whose name this
Note is registered as the owner hereof for the purpose of receiving payment and
for all other purposes, and the Company will not be affected by any notice to
the contrary.
The Company will make required prepayments of principal on the
dates and in the amounts specified in the Note Agreement. This Note is also
subject to optional prepayment, in whole or from time to time in part, at the
times and on the terms specified in the Note Agreement, but not otherwise.
If an Event of Default, as defined in the Note Agreement, occurs
and is continuing, the principal of this Note may be declared or otherwise
become due and payable in the manner, at the price (including any applicable
Make-Whole Amount) and with the effect provided in the Note Agreement.
This Note and the Note Agreement are governed by and construed in
accordance with the internal laws (and not the law of conflicts) of the State of
Illinois.
GLOBE BUSINESS RESOURCES, INC.
By:
------------------------------
Title:
------------------------------
GLOBE BUSINESS RESOURCES, INC.
7.54% SENIOR NOTE
DUE SEPTEMBER 1, 2007
No. R-4 September 29, 1997
$2,000,000 PPN: 379395A*7
FOR VALUE RECEIVED, the undersigned, GLOBE BUSINESS RESOURCES,
INC. (herein called the "Company"), a corporation organized and existing under
the laws of the State of Ohio, hereby promises to pay to Indiana Insurance
Company, or registered assigns, the principal sum of TWO MILLION DOLLARS on
September 1, 2007, with interest (computed on the basis of a 360-day year of
twelve 30-day months) (a) on the unpaid balance thereof at the rate of 7.54% per
annum from the date hereof, payable semiannually, on the first day of September
and the first day of March in each year, commencing March 1, 1998, until the
principal hereof shall have become due and payable, and (b) to the extent
permitted by law on any overdue payment (including any overdue prepayment) of
principal, any overdue payment of interest and any overdue payment of any
Make-Whole Amount (as defined in the Note Agreement referred to below), payable
semiannually as aforesaid (or, at the option of the registered holder hereof, on
demand), at a rate per annum equal to 9.54%.
Payments of principal of, interest on and any Make-Whole Amount
with respect to this Note are to be made in lawful money of the United States of
America in the manner and at such place as shall have been designated in the
Note Agreement referred to below.
This Note is one of a series of Senior Notes (herein called the
"Notes") issued pursuant to the Note Purchase Agreement, dated as of September
1, 1997 (as from time to time amended, the "Note Agreement"), between the
Company and the respective Purchasers named therein and is entitled to the
benefits thereof. Each holder of this Note will be deemed, by its acceptance
hereof, (i) to have agreed to the confidentiality provisions set forth in
Section 20 of the Note Agreement and (ii) to have made the representations set
forth in Sections 6.1 and 6.2 of the Note Agreement.
This Note is a registered Note and, as provided in the Note
Agreement, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Company may treat the person in whose name this
Note is registered as the owner hereof for the purpose of receiving payment and
for all other purposes, and the Company will not be affected by any notice to
the contrary.
The Company will make required prepayments of principal on the
dates and in the amounts specified in the Note Agreement. This Note is also
subject to optional prepayment, in whole or from time to time in part, at the
times and on the terms specified in the Note Agreement, but not otherwise.
If an Event of Default, as defined in the Note Agreement, occurs
and is continuing, the principal of this Note may be declared or otherwise
become due and payable in the manner, at the price (including any applicable
Make-Whole Amount) and with the effect provided in the Note Agreement.
This Note and the Note Agreement are governed by and construed in
accordance with the internal laws (and not the law of conflicts) of the State of
Illinois.
GLOBE BUSINESS RESOURCES, INC.
By:
------------------------------
Title:
------------------------------
GLOBE BUSINESS RESOURCES, INC.
7.54% SENIOR NOTE
DUE SEPTEMBER 1, 2007
No. R-5 September 29, 1997
$2,000,000 PPN: 379395A*7
FOR VALUE RECEIVED, the undersigned, GLOBE BUSINESS RESOURCES,
INC. (herein called the "Company"), a corporation organized and existing under
the laws of the State of Ohio, hereby promises to pay to Southland Life
Insurance Company, or registered assigns, the principal sum of TWO MILLION
DOLLARS on September 1, 2007, with interest (computed on the basis of a 360-day
year of twelve 30-day months) (a) on the unpaid balance thereof at the rate of
7.54% per annum from the date hereof, payable semiannually, on the first day of
September and the first day of March in each year, commencing March 1, 1998,
until the principal hereof shall have become due and payable, and (b) to the
extent permitted by law on any overdue payment (including any overdue
prepayment) of principal, any overdue payment of interest and any overdue
payment of any Make-Whole Amount (as defined in the Note Agreement referred to
below), payable semiannually as aforesaid (or, at the option of the registered
holder hereof, on demand), at a rate per annum equal to 9.54%.
Payments of principal of, interest on and any Make-Whole Amount
with respect to this Note are to be made in lawful money of the United States of
America in the manner and at such place as shall have been designated in the
Note Agreement referred to below.
This Note is one of a series of Senior Notes (herein called the
"Notes") issued pursuant to the Note Purchase Agreement, dated as of September
1, 1997 (as from time to time amended, the "Note Agreement"), between the
Company and the respective Purchasers named therein and is entitled to the
benefits thereof. Each holder of this Note will be deemed, by its acceptance
hereof, (i) to have agreed to the confidentiality provisions set forth in
Section 20 of the Note Agreement and (ii) to have made the representations set
forth in Sections 6.1 and 6.2 of the Note Agreement.
This Note is a registered Note and, as provided in the Note
Agreement, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Company may treat the person in whose name this
Note is registered as the owner hereof for the purpose of receiving payment and
for all other purposes, and the Company will not be affected by any notice to
the contrary.
The Company will make required prepayments of principal on the
dates and in the amounts specified in the Note Agreement. This Note is also
subject to optional prepayment, in whole or from time to time in part, at the
times and on the terms specified in the Note Agreement, but not otherwise.
If an Event of Default, as defined in the Note Agreement, occurs
and is continuing, the principal of this Note may be declared or otherwise
become due and payable in the manner, at the price (including any applicable
Make-Whole Amount) and with the effect provided in the Note Agreement.
This Note and the Note Agreement are governed by and construed in
accordance with the internal laws (and not the law of conflicts) of the State of
Illinois.
GLOBE BUSINESS RESOURCES, INC.
By:
------------------------------
Title:
------------------------------