1
===============================================================================
ANGELICA CORPORATION
NOTE AGREEMENT
Dated as of March 1, 1995
Re: $30,000,000 8.225% Senior Notes
Due May 1, 2006
===============================================================================
2
TABLE OF CONTENTS
(Not a part of the Agreement)
SECTION HEADING PAGE
SECTION 1. DESCRIPTION OF NOTES AND COMMITMENT 1
Section 1.1. Description of Notes 1
Section 1.2. Commitment, Closing Date 1
Section 1.3. Other Agreements 2
SECTION 2. PREPAYMENT OF NOTES 2
Section 2.1. Required Prepayments 2
Section 2.2. Optional Prepayments 3
Section 2.3. Notice of Optional Prepayments 3
Section 2.4. Application of Prepayments 3
Section 2.5. Direct Payment 3
SECTION 3. REPRESENTATIONS 4
Section 3.1. Representations of the Company 4
Section 3.2. Representations of the Purchaser 4
SECTION 4. CLOSING CONDITIONS 4
Section 4.1. Conditions 4
Section 4.2. Waiver of Conditions 6
SECTION 5. COMPANY COVENANTS 6
Section 5.1. Corporate Existence, Etc. 6
Section 5.2. Insurance 6
Section 5.3. Taxes, Claims for Labor and Materials,
Compliance with Laws 6
Section 5.4. Maintenance, Etc. 7
Section 5.5. Nature of Business 7
Section 5.6. Consolidated Net Worth 7
Section 5.7. Limitations on Funded Debt 7
Section 5.8. Limitation on Liens 8
Section 5.9. Limitation on Sale and Leasebacks 9
Section 5.10. Mergers, Consolidations and Sales of Assets 10
Section 5.11. Repurchase of Notes 11
Section 5.12. Transactions with Affiliates 11
Section 5.13. Termination of Pension Plans 11
Section 5.14. Reports and Rights of Inspection 12
SECTION 6. EVENTS OF DEFAULT AND REMEDIES THEREFOR 15
Section 6.1. Events of Default 15
-i-
3
Section 6.2. Notice to Holders 16
Section 6.3. Acceleration of Maturities 16
Section 6.4. Rescission of Acceleration 17
SECTION 7. AMENDMENTS, WAIVERS AND CONSENTS 17
Section 7.1. Consent Required 17
Section 7.2. Solicitation of Holders 18
Section 7.3. Effect of Amendment or Waiver 18
SECTION 8. INTERPRETATION OF AGREEMENT 18
Section 8.1. Definitions 18
Section 8.2. Accounting Principles 24
Section 8.3. Directly or Indirectly 24
SECTION 9. MISCELLANEOUS 25
Section 9.1. Registered Notes 25
Section 9.2. Exchange of Notes 25
Section 9.3. Loss, Theft, Etc. of Notes 25
Section 9.4. Expenses, Stamp Tax Indemnity 26
Section 9.5. Powers and Rights Not Waived 26
Section 9.6. Notices 26
Section 9.7. Successors and Assigns 27
Section 9.8. Survival of Covenants and Representations 27
Section 9.9. Severability 27
Section 9.10. Governing Law 27
Section 9.11. Captions 27
Signature 28
ATTACHMENTS TO NOTE AGREEMENT:
Schedule I - Names and Addresses of Purchasers and Amounts
of Commitments
Schedule II - Funded Debt of the Company and its
Subsidiaries as of March 25, 1995
Schedule III - Liens Securing Funded Debt (including
Capitalized Leases) as of March 25, 1995
Exhibit A - Form of 8.225% Senior Note due May 1, 2006
Exhibit B - Representations and Warranties of the Company
Exhibit C - Description of Special Counsel's Closing
Opinion
Exhibit D - Description of Closing Opinion of Counsel to
the Company
-ii-
4
ANGELICA CORPORATION
424 South Woods Mill Road
Chesterfield, Missouri 63017
NOTE AGREEMENT
Re: $30,000,000 8.225% Senior Notes
Due May 1, 2006
---------------
Dated as of
March 1, 1995
To the Purchaser named in Schedule I
hereto which is a signatory of this
Agreement
Gentlemen:
The undersigned, ANGELICA CORPORATION, a Missouri corporation (the
"Company"), agrees with you as follows:
SECTION 1. DESCRIPTION OF NOTES AND COMMITMENT.
Section 1.1. Description of Notes. The Company will authorize
the issue and sale of $30,000,000 aggregate principal amount of
its 8.225% Senior Notes (the "Notes") to be dated the date of
issue, to bear interest from such date at the rate of 8.225% per
annum, payable quarterly on the first day of each February, May,
August and November in each year (commencing August 1, 1995) and
at maturity and to bear interest on overdue principal (including
any overdue required or optional prepayment of principal) and
premium, if any, and (to the extent legally enforceable) on any
overdue installment of interest at the Overdue Rate after the due
date, whether by acceleration or otherwise, until paid, to be
expressed to mature on May 1, 2006, and to be substantially in
the form attached hereto as Exhibit A. Interest on the Notes
shall be computed on the basis of a 360-day year of twelve 30-day
months. The Notes are not subject to prepayment or redemption at
the option of the Company prior to their expressed maturity dates
except on the terms and conditions and in the amounts and with
the premium, if any, set forth in Sec. 2 of this Agreement. The
term "Notes" as used herein shall include each Note delivered
pursuant to this Agreement and the separate agreements with the
other purchasers named in Schedule I. You and the other
purchasers named in Schedule I are hereinafter sometimes referred
to collectively as the "Purchasers".
Section 1.2. Commitment, Closing Date. Subject to the terms
and conditions hereof and on the basis of the representations and
warranties hereinafter set forth, the Company agrees to issue and
sell to you, and you agree to purchase from the Company, Notes in
the principal amount set forth opposite your name on Schedule I
hereto at a price of 100% of the principal amount thereof on the
Closing Date hereafter mentioned.
5
Delivery of the Notes will be made at the offices of Chapman
and Cutler, 111 West Monroe Street, Chicago, Illinois 60603,
against payment therefor in Federal Reserve or other funds
current and immediately available at the principal office of The
Boatmen's National Bank of St. Louis, 800 Market Street, St.
Louis, Missouri 63101, in the amount of the purchase price at
10:00 A.M., St. Louis time, on May 1, 1995 or such later date as
shall mutually be agreed upon by the Company and the Purchasers
(the "Closing Date"). The Notes delivered to you on the Closing
Date will be delivered to you in the form of a single registered
Note in the form attached hereto as Exhibit A for the full amount
of your purchase (unless different denominations are specified by
you), registered in your name or in the name of your nominee, all
as you may specify at any time prior to the date fixed for
delivery.
Section 1.3. Other Agreements. Simultaneously with the
execution and delivery of this Agreement, the Company is entering
into similar agreements with the other Purchasers under which
such other Purchasers agree to purchase from the Company the
principal amount of Notes set opposite such Purchasers' names in
Schedule I, and your obligation and the obligations of the
Company hereunder are subject to the execution and delivery of
the similar agreements by the other Purchasers. This Agreement
and said similar agreements with the other Purchasers are herein
collectively referred to as the "Agreements". The obligations of
each Purchaser shall be several and not joint and no Purchaser
shall be liable or responsible for the acts of any other
Purchaser.
SECTION 2. PREPAYMENT OF NOTES.
No prepayment of the Notes may be made except to the extent
and in the manner expressly provided in this Agreement.
Section 2.1. Required Prepayments. The Company agrees that on
May 1 in each of the years set forth in the table below, it will
prepay and apply and there shall become due and payable on the
principal indebtedness evidenced by the Notes the lesser of (i)
the amount set opposite such year in the table below or (ii) the
principal amount of the Notes then outstanding:
YEAR PRINCIPAL
(MAY 1) PREPAYMENT
2002 $ 4,000,000
2005 $14,000,000
The entire remaining principal amount of the Notes shall become
due and payable on May 1, 2006. No premium shall be payable in
connection with any required prepayment made pursuant to this
Sec. 2.1.
In the event that the Company shall prepay less than all of the
Notes pursuant to Sec. 2.2 hereof, the amounts of the prepayments
required by this Sec. 2.1 shall be reduced by an amount which is the
same percentage of such required prepayment as the percentage that the
-2-
6
principal amount of Notes prepaid pursuant to Sec. 2.2 is of the aggregate
principal amount of outstanding Notes immediately prior to such prepayment.
Section 2.2. Optional Prepayments. In addition to the
payments required by Sec. 2.1, upon compliance with Sec. 2.3, the
Company shall have the privilege, at any time and from time to
time of prepaying the outstanding Notes, either in whole or in
part (but if in part then in a minimum principal amount of
$100,000) by payment of the principal amount of the Notes, or
portion thereof to be prepaid, and accrued interest thereon to
the date of such prepayment, together with a premium equal to the
Make-Whole Amount, determined as of two Business Days prior to
the date of such prepayment pursuant to this Sec. 2.2, if such
prepayment is made prior to May 1, 2005 and without a premium if
such prepayment is made on or after May 1, 2005.
Section 2.3. Notice of Optional Prepayments. The Company will
give notice of any prepayment of the Notes pursuant to Sec. 2.2 to
each holder thereof not less than 30 days nor more than 60 days
before the date fixed for such optional prepayment specifying (a)
such date, (b) the principal amount of the holder's Notes to be
prepaid on such date and (c) the accrued interest applicable to
the prepayment. Such notice shall also specify (1) that a
premium may be payable, (2) the date when such premium will be
calculated, and (3) the estimated premium. Such notice of
prepayment shall also certify all facts, if any, which are
conditions precedent to any such prepayment. Notice of
prepayment having been so given, the aggregate principal amount
of the Notes specified in such notice, together with accrued
interest thereon and the premium, if any, payable with respect
thereto shall become due and payable on the prepayment date
specified in said notice. Two Business Days prior to the
prepayment date specified in such notice, the Company shall
provide each holder of a Note written notice of the premium, if
any, payable in connection with such prepayment and, whether or
not any premium is payable, a reasonably detailed computation of
the Make-Whole Amount.
Section 2.4. Application of Prepayments. All partial
prepayments shall be applied on all outstanding Notes ratably in
accordance with the unpaid principal amounts thereof.
Section 2.5. Direct Payment. Notwithstanding anything to the
contrary contained in this Agreement or the Notes, in the case of
any Note owned by you or your nominee or owned by any subsequent
Institutional Holder which has given written notice to the
Company requesting that the provisions of this Sec. 2.5 shall
apply, the Company will punctually pay when due the principal
thereof, interest thereon and premium, if any, due with respect
to said principal, without any presentment thereof, directly to
you, to your nominee or to such subsequent Institutional Holder
at your address or your nominee's address set forth in Schedule I
hereto or such other address as you, your nominee or such
subsequent Institutional Holder may from time to time designate
in writing to the Company or, if a bank account with a United
States bank is designated for you or your nominee on Schedule I
hereto or in any written notice to the Company from you, from
your nominee or from any such subsequent Institutional Holder,
the Company will make such payments in immediately available
funds to such bank account, marked for attention as indicated, or
in such other manner or to such other account in any United
States bank as you, your nominee or any such subsequent
Institutional Holder may from time to time direct in writing.
-3-
7
SECTION 3. REPRESENTATIONS.
Section 3.1. Representations of the Company. The Company
represents and warrants that all representations and warranties
set forth in Exhibit B are true and correct as of the date hereof
and are incorporated herein by reference with the same force and
effect as though herein set forth in full.
Section 3.2. Representations of the Purchaser. (a) You
represent, and in entering into this Agreement the Company
understands, that you are acquiring the Notes for the purpose of
investment and not with a view to the distribution thereof, and
that you have no present intention of selling, negotiating or
otherwise disposing of the Notes; it being understood, however,
that the disposition of your property shall at all times be and
remain within your control. Without limiting the foregoing, you
agree that you will only reoffer or resell the Notes purchased by
you under this Agreement in accordance with any available
exemption from the requirements of Section 5 of the Securities
Act of 1933, as amended, and, in any event, in accordance with
any applicable state Securities laws.
(b) You further represent that either: (1) you are
acquiring the Notes with assets from your general account and not
with the assets of any separate account in which any employee
benefit plan has any interest; (2) no part of the funds to be
used by you to purchase the Notes constitutes assets allocated to
any separate account maintained by you such that the application
of such funds constitutes a prohibited transaction under
Section 406 of ERISA; or (3) all or a part of such funds
constitute assets of one or more separate accounts, trusts or a
commingled pension trust maintained by you, and you have
disclosed to the Company the names of such employee benefit plans
whose assets in such separate account or accounts or pension
trusts exceed 10% of the total assets or are expected to exceed
10% of the total assets of such account or accounts or trusts as
of the date of such purchase and the Company has advised you in
writing (and in making the representations set forth in this
clause (3) you are relying on such advice) that the Company is
not a party-in-interest nor are the Notes employer securities
with respect to the particular employee benefit plan disclosed to
the Company by you as aforesaid (for the purpose of this clause
(3), all employee benefit plans maintained by the same employer
or employee organization are deemed to be a single plan). As
used in this Sec. 3.2(b), the terms "separate account", "party-in-
interest", "employer securities" and "employee benefit plan"
shall have the respective meanings assigned to them in ERISA.
SECTION 4. CLOSING CONDITIONS.
Section 4.1. Conditions. Your obligation to purchase the
Notes on the Closing Date shall be subject to the performance by
the Company of its agreements hereunder which by the terms hereof
are to be performed at or prior to the time of delivery of the
Notes and to the following further conditions precedent:
(a) Closing Certificate. You shall have received a certificate
dated the Closing Date, signed by the President or a Vice President
of the Company, the truth and accuracy of which shall be a condition
to your obligation to purchase the Notes proposed to be sold to
you and to the effect that (1) the representations and warranties
-4-
8
of the Company set forth in Exhibit B hereto are true and correct on
and with respect to the Closing Date, (2) the Company has performed
all of its obligations hereunder which are to be performed on or prior
to the Closing Date, and (3) no Default or Event of Default has
occurred and is continuing.
(b) Legal Opinions. You shall have received from
Chapman and Cutler, who are acting as your special counsel
in this transaction, and from Jill Witter, Esq., General
Counsel for the Company, their respective opinions dated the
Closing Date, in form and substance satisfactory to you, and
covering the matters set forth in Exhibits C and D,
respectively, hereto.
(c) Company's Existence and Authority. On or prior to
the Closing Date, you shall have received, in form and
substance reasonably satisfactory to you and your special
counsel, such documents and evidence with respect to the
Company as you may reasonably request in order to establish
the existence and good standing of the Company and the
authorization of the transactions contemplated by this
Agreement.
(d) Related Transactions. The Company shall have
consummated the sale of the entire principal amount of the
Notes scheduled to be sold on the Closing Date pursuant to
this Agreement and the other agreements referred to in
Sec. 1.3.
(e) Private Placement Number. On or prior to the
Closing Date, special counsel to the Purchasers shall have
duly made the appropriate filings with Standard & Poor's
CUSIP Service Bureau, as agent for the National Association
of Insurance Commissioners, in order to obtain a private
placement number for the Notes.
(f) Funding Instructions. At least three Business
Days prior to the Closing Date, you shall have received
written instructions executed by a Responsible Officer of
the Company directing the manner of the payment of funds and
setting forth (1) the name and address of the transferee
bank, (2) such transferee bank's ABA number, (3) the account
name and number into which the purchase price for the Notes
is to be deposited, and (4) the name and telephone number of
the account representative responsible for verifying receipt
of such funds.
(g) Special Counsel Fees. Concurrently with the
delivery of the Notes to you on the Closing Date, the
charges and disbursements of Chapman and Cutler, your
special counsel, shall have been paid by the Company.
(h) Legality of Investment. The Notes to be purchased
by you shall be a legal investment for you under the laws of
each jurisdiction to which you may be subject (without
resort to any so-called "basket provisions" to such laws).
(i) Satisfactory Proceedings. All proceedings taken in
connection with the transactions contemplated by this Agreement,
and all documents necessary to the consummation thereof, shall be
satisfactory in form and substance to you and your special counsel,
and you shall have received a copy (executed or certified as may be
-5-
9
appropriate) of all legal documents or proceedings taken in connection
with the consummation of said transactions.
Section 4.2. Waiver of Conditions. If on the Closing Date the
Company fails to tender to you the Notes to be issued to you on
such date or if the conditions specified in Sec. 4.1 have not been
fulfilled, you may thereupon elect to be relieved of all further
obligations under this Agreement. Without limiting the
foregoing, if the conditions specified in Sec. 4.1 have not been
fulfilled, you may waive compliance by the Company with any such
condition to such extent as you may in your sole discretion
determine. Nothing in this Sec. 4.2 shall operate to relieve the
Company of any of its obligations hereunder or to waive any of
your rights against the Company.
SECTION 5. COMPANY COVENANTS.
From and after the Closing Date and continuing so long as
any amount remains unpaid on any Note:
Section 5.1. Corporate Existence, Etc. The Company will
preserve and keep in full force and effect, and will cause each
Restricted Subsidiary to preserve and keep in full force and
effect, its corporate existence and all licenses and permits
necessary to the proper conduct of its business, provided that
the foregoing shall not prevent any transaction permitted by
Sec. 5.10.
Section 5.2. Insurance. The Company will maintain, and will
cause each Restricted Subsidiary to maintain, insurance coverage
by financially sound and reputable insurers and in such forms and
amounts and against such risks as are customary for corporations
of established reputation engaged in the same or a similar
business and owning and operating similar properties.
Section 5.3. Taxes, Claims for Labor and Materials, Compliance
with Laws. (a) The Company will promptly pay and discharge, and
will cause each Restricted Subsidiary promptly to pay and
discharge, all lawful taxes, assessments and governmental charges
or levies imposed upon the Company or such Restricted Subsidiary,
respectively, or upon or in respect of all or any part of the
property or business of the Company or such Restricted
Subsidiary, all trade accounts payable in accordance with usual
and customary business terms, and all claims for work, labor or
materials, which if unpaid might become a Lien upon any property
of the Company or such Restricted Subsidiary; provided the
Company or such Restricted Subsidiary shall not be required to
pay any such tax, assessment, charge, levy, account payable or
claim if (1) the validity, applicability or amount thereof is
being contested in good faith by appropriate actions or
proceedings which will prevent the forfeiture or sale of any
property of the Company or such Restricted Subsidiary or any
material interference with the use thereof by the Company or such
Restricted Subsidiary, and (2) the Company or such Restricted
Subsidiary shall set aside on its books, reserves deemed by it to
be adequate with respect thereto.
(b) The Company will promptly comply and will cause
each Subsidiary to comply with all laws, ordinances or
governmental rules and regulations to which it is subject
-6-
10
including, without limitation, the Occupational Safety and Health
Act of 1970, as amended, ERISA and all laws, ordinances,
governmental rules and regulations relating to environmental
protection in all applicable jurisdictions, the violation of which
could materially and adversely affect the properties, business,
prospects, profits or financial condition of the Company and its
Restricted Subsidiaries or would result in any Lien not permitted
under Sec. 5.8.
Section 5.4. Maintenance, Etc. The Company will maintain,
preserve and keep, and will cause each Restricted Subsidiary to
maintain, preserve and keep, its properties which are used or
useful in the conduct of its business (whether owned in fee or a
leasehold interest) in good repair and working order and from
time to time will make all necessary repairs, replacements,
renewals and additions so that at all times the efficiency
thereof shall be maintained.
Section 5.5. Nature of Business. Neither the Company nor any
Restricted Subsidiary will engage in any business if, as a
result, the general nature of the business, taken on a
consolidated basis, which would then be engaged in by the Company
and its Restricted Subsidiaries would be substantially changed
from the general nature of the business engaged in by the Company
and its Restricted Subsidiaries on the date of this Agreement.
Section 5.6. Consolidated Net Worth. The Company will at all
times keep and maintain Consolidated Net Worth at an amount not
less than $160,000,000.
Section 5.7. Limitations on Funded Debt. (a) The Company will
not, and will not permit any Restricted Subsidiary to, create,
issue, assume, guarantee or otherwise incur or in any manner
become liable in respect of any Funded Debt, except:
(1) Funded Debt evidenced by the Notes;
(2) Funded Debt of the Company and its Restricted
Subsidiaries outstanding as of March 25, 1995 and described
on Schedule II attached to this Agreement;
(3) additional Funded Debt of the Company and its
Restricted Subsidiaries, provided that at the time of
issuance thereof and after giving effect thereto and to the
application of the proceeds thereof:
(i) Consolidated Funded Debt would not exceed 55%
of Consolidated Net Tangible Assets, and
(ii) in the case of the issuance of any Funded
Debt of the Company secured by Liens permitted by
Sec. 5.8(h) and any Funded Debt of a Restricted
Subsidiary, the sum, without duplication, of
(A) Consolidated Attributable Indebtedness, (B)
Consolidated Secured Funded Debt secured by Liens
permitted and incurred within the limitations of
Sec. 5.8(h), and (C) the aggregate amount of all Funded
Debt of Restricted Subsidiaries, would not exceed 10%
of Consolidated Net Tangible Assets; and
-7-
11
(4) Funded Debt of a Restricted Subsidiary to the
Company or to a Wholly-owned Restricted Subsidiary.
(b) Funded Debt issued or incurred in accordance with the
limitations of Sec. 5.7(a)(2) or (3) may be renewed, extended or
refunded (without any increase in principal amount remaining
unpaid at the time of such renewal, extension or refunding)
without regard to the limitations of Sec. 5.7(a)(3).
(c) Any corporation which becomes a Restricted Subsidiary
after the date hereof shall for all purposes of this Sec. 5.7 be
deemed to have created, assumed or incurred at the time it
becomes a Restricted Subsidiary all Funded Debt of such
corporation existing immediately after it becomes a Restricted
Subsidiary.
Section 5.8. Limitation on Liens. The Company will not, and
will not permit any Restricted Subsidiary to, create or incur, or
suffer to be incurred or to exist, any Lien on its or their
property or assets, whether now owned or hereafter acquired, or
upon any income or profits therefrom, or transfer any property
for the purpose of subjecting the same to the payment of
obligations in priority to the payment of its or their general
creditors, or acquire or agree to acquire, or permit any
Restricted Subsidiary to acquire, any property or assets upon
conditional sales agreements or other title retention devices,
except:
(a) Liens for taxes and assessments or governmental
charges or levies and Liens securing claims or demands of
mechanics and materialmen, provided that payment thereof is
not at the time required by Sec. 5.3;
(b) Liens of or resulting from any judgment or award,
the time for the appeal or petition for rehearing of which
shall not have expired, or in respect of which the Company
or a Restricted Subsidiary shall at any time in good faith
be prosecuting an appeal or proceeding for a review and in
respect of which a stay of execution pending such appeal or
proceeding for review shall have been secured;
(c) Liens incidental to the conduct of business or the
ownership of properties and assets (including Liens in
connection with workers' compensation, unemployment
insurance and other like laws, warehousemen's and attorneys'
liens and statutory landlords' liens) and Liens to secure
the performance of bids, tenders or trade contracts, or to
secure statutory obligations, surety or appeal bonds or
other Liens of like general nature incurred in the ordinary
course of business and not in connection with the borrowing
of money, provided in each case, the obligation secured is
not overdue or, if overdue, is being contested in good faith
by appropriate actions or proceedings;
(d) minor survey exceptions or minor encumbrances,
easements or reservations, or rights of others for rights-of-
way, utilities and other similar purposes, or zoning or
other restrictions as to the use of real properties, which
are necessary for the conduct of the activities of the Company
and its Restricted Subsidiaries or which customarily exist on
properties of corporations engaged in similar activities and
-8-
12
similarly situated and which do not in any event materially
impair their use in the operation of the business of the
Company and its Restricted Subsidiaries;
(e) Liens securing Indebtedness of a Restricted
Subsidiary to the Company or to a Wholly-owned Restricted
Subsidiary;
(f) Liens existing as of March 25, 1995 and described
on Schedule III attached to this Agreement;
(g) Liens incurred after the Closing Date given to
secure the payment of the purchase price incurred in
connection with the acquisition (and, in the case of real
property, the construction) of fixed assets useful and
intended to be used in carrying on the business of the
Company or a Restricted Subsidiary, including Liens existing
on such fixed assets at the time of acquisition thereof or
at the time of acquisition by the Company or a Restricted
Subsidiary of any business entity then owning such fixed
assets, whether or not such existing Liens were given to
secure the payment of the purchase price of the fixed assets
to which they attach so long as they were not incurred,
extended or renewed in contemplation of such acquisition,
provided that (1) the Lien shall attach solely to the fixed
assets acquired, constructed or purchased, (2) the Lien
shall have been created or incurred by the Company or a
Restricted Subsidiary within twelve (12) months after the
date of acquisition (or, in the case of real property,
completion of construction) of such fixed assets, (3) at the
time of acquisition of such fixed assets, the aggregate
amount remaining unpaid on all Indebtedness secured by Liens
on such fixed assets whether or not assumed by the Company
or a Restricted Subsidiary shall not exceed the lesser of
the total purchase price or fair market value at the time of
acquisition of such fixed assets (as determined in good
faith by the Board of Directors of the Company), and (4) all
such Indebtedness shall have been incurred within the
limitations provided in Sec. 5.7(a)(3)(i);
(h) Liens incurred after the Closing Date by the
Company or any Restricted Subsidiary given to secure Funded
Debt of the Company or any Restricted Subsidiary in addition
to the Liens permitted by the preceding clauses (a) through
(g) hereof; provided that all Indebtedness secured by Liens
incurred pursuant to this Sec. 5.8(h) shall have been incurred
within the limitations provided in Sec. 5.7(a)(3)(i) and (ii);
and
(i) any extension, renewal or replacement of any Lien
permitted by the preceding clauses (e), (f), (g) and (h)
hereof in respect of the same property theretofor subject to
such Lien in connection with the extension, renewal or
refunding of the Indebtedness secured thereby; provided that
(1) such Lien shall attach solely to the same such property,
and (2) such extension, renewal or refunding of such
Indebtedness shall be without increase in the principal
remaining unpaid as of the date of such extension, renewal
or refunding.
Section 5.9. Limitation on Sale and Leasebacks. The
Company will not, and will not permit any Restricted Subsidiary
to, enter into any arrangement, directly or indirectly,
-9-
13
whereby the Company or such Restricted Subsidiary shall in one or
more related transactions sell, transfer or otherwise dispose of
any property owned by the Company or such Restricted Subsidiary
more than 180 days after the later of the date of initial
acquisition of such property or completion or occupancy thereof,
as the case may be, by the Company or such Restricted Subsidiary,
and then rent or lease, as lessee, such property or any part
thereof for a period or periods which in the aggregate would
exceed thirty-six months from the date of commencement of the
lease term (a "Sale and Leaseback Transaction"), provided that the
foregoing restriction shall not apply to any Sale and Leaseback
Transaction if immediately after the consummation of such Sale and
Leaseback Transaction and after giving effect thereto, either of
the following conditions is satisfied:
(a) the sale of such property is for cash
consideration which (after deduction of any expenses
incurred by the Company or any Restricted Subsidiary in
connection with such Sale and Leaseback Transaction and any
other applicable expenses) equals or exceeds the fair market
value of the property so sold (as determined in good faith
by the Board of Directors of the Company) and the net
proceeds from such sale are applied to the purchase or
acquisition (and, in the case of real property, the
construction) of tangible assets useful and intended to be
used by the Company or a Restricted Subsidiary in the
ordinary course of its business (provided that in any such
event the Company and its Restricted Subsidiaries shall not
then or thereafter cause or permit or agree or consent to
cause or permit such tangible assets to be subject to any
Lien) or to the prepayment at the applicable prepayment
premium, if any, on a pro rata basis, of Indebtedness for
borrowed money of the Company or a Restricted Subsidiary; or
(b) after giving effect to the consummation of such
Sale and Leaseback Transaction and to the application of the
proceeds therefrom, the sum, without duplication, of (1)
Consolidated Attributable Indebtedness (including the
Consolidated Attributable Indebtedness to be incurred in
connection with such Sale and Leaseback Transaction), (2)
Consolidated Secured Funded Debt secured by Liens permitted
and incurred within the limitations of Sec. 5.8(h) and (3)
Funded Debt of Restricted Subsidiaries shall not exceed 10%
of Consolidated Net Tangible Assets.
Section 5.10. Mergers, Consolidations and Sales of Assets. The
Company will not, and will not permit any Restricted Subsidiary
to, consolidate with or be a party to a merger with any other
corporation or sell, lease or otherwise dispose of all or
substantially all of the assets of the Company and its Restricted
Subsidiaries, provided, however, that:
(a) any Restricted Subsidiary may merge or consolidate
with or into the Company or any Wholly-owned Restricted
Subsidiary so long as in any merger or consolidation
involving the Company, the Company shall be the surviving or
continuing corporation;
(b) the Company may consolidate or merge with any
other corporation if (1) the Company shall be the surviving
or continuing corporation, (2) at the time of such
consolidation or merger and after giving effect thereto
no Default or Event of Default shall have occurred and
be continuing, and (3) the surviving or continuing
-10-
14
corporation would be permitted by the provisions of
Sec. 5.7(a)(3) to incur at least $1.00 of additional Funded
Debt; and
(c) the Company may consolidate or merge with any
other corporation if (1) the corporation which results from
such merger or consolidation (the "surviving corporation")
is organized under the laws of the United States or a
jurisdiction thereof, (2) the due and punctual payment of
the principal of and premium, if any, and interest on all of
the Notes, according to their tenor, and the due and
punctual performance and observance of all of the covenants
in the Notes and this Agreement to be performed or observed
by the Company are expressly assumed in writing by the
surviving corporation and the surviving corporation shall
furnish the holders of the Notes an opinion of counsel
reasonably satisfactory to such holders to the effect that
the instrument of assumption has been duly authorized,
executed and delivered and constitutes the legal, valid and
binding contract and agreement of the surviving corporation
enforceable in accordance with its terms, except as
enforcement of such terms may be limited by bankruptcy,
insolvency or similar laws affecting the enforcement of
creditors' rights generally, and subject, as to
enforceability, to general principals of equity (regardless
of whether enforcement is sought in a proceeding in equity
or at law), (3) at the time of such consolidation or merger
and immediately after giving effect thereto, no Default or
Event of Default would exist, and (4) the surviving
corporation would be permitted by the provisions of
Sec. 5.7(a)(3) to incur $1.00 of additional Funded Debt.
Section 5.11. Repurchase of Notes. Neither the Company nor
any Restricted Subsidiary or Affiliate, directly or indirectly,
may repurchase or make any offer to repurchase any Notes unless
an offer has been made to repurchase Notes, pro rata, from all
holders of the Notes at the same time and upon the same terms.
In case the Company repurchases or otherwise acquires any Notes,
such Notes shall immediately thereafter be cancelled and no Notes
shall be issued in substitution therefor. Without limiting the
foregoing, upon the purchase or other acquisition of any Notes by
the Company, any Restricted Subsidiary or any Affiliate, such
Notes shall no longer be outstanding for purposes of any section
of this Agreement relating to the taking by the holders of the
Notes of any actions with respect hereto, including, without
limitation, Sec. 6.3, Sec. 6.4 and Sec. 7.1.
Section 5.12. Transactions with Affiliates. The Company will
not, and will not permit any Restricted Subsidiary to, enter into
or be a party to any transaction or arrangement with any
Affiliate (including, without limitation, the purchase from, sale
to or exchange of property with, or the rendering of any service
by or for, any Affiliate), except in the ordinary course of and
pursuant to the reasonable requirements of the Company's or such
Restricted Subsidiary's business and upon fair and reasonable
terms no less favorable to the Company or such Restricted
Subsidiary than would obtain in a comparable arm's-length
transaction with a Person other than an Affiliate.
Section 5.13. Termination of Pension Plans. The Company will not
and will not permit any Subsidiary to withdraw from any Multiemployer
Plan or permit any employee benefit plan maintained by it to be
terminated if such withdrawal or termination could result in withdrawal
liability (as described in Part 1 of Subtitle E of Title IV of ERISA)
in an
-11-
15
amount which would materially and adversely affect the business,
prospects, profits, properties or financial condition of the Company
and its Restricted Subsidiaries, taken as a whole, or the imposition of
a Lien on any property of the Company or any Subsidiary pursuant to
Section 4068 of ERISA.
Section 5.14. Reports and Rights of Inspection. The Company
will keep, and will cause each Restricted Subsidiary to keep,
proper books of record and account in which full and correct
entries will be made of all dealings or transactions of, or in
relation to, the business and affairs of the Company or such
Restricted Subsidiary, in accordance with GAAP consistently
applied (except for changes disclosed in the financial statements
furnished to you pursuant to this Sec. 5.14 and concurred in by the
independent public accountants referred to in Sec. 5.14 hereof),
and will furnish to you so long as you are the holder of any Note
and to each other Institutional Holder of the then outstanding
Notes (in duplicate if so specified below or otherwise
requested):
(a) Quarterly Statements. As soon as available and in
any event within 60 days after the end of each quarterly
fiscal period (except the last) of each fiscal year, copies
of:
(1) a consolidated balance sheet of the Company
and its consolidated Subsidiaries as of the close of
such quarterly fiscal period, setting forth in
comparative form the consolidated figures for the
fiscal year then most recently ended,
(2) a consolidated statement of income of the
Company and its consolidated Subsidiaries for such
quarterly fiscal period and for the portion of the
fiscal year ending with such quarterly fiscal period,
in each case setting forth in comparative form the
consolidated figures for the corresponding periods of
the preceding fiscal year, and
(3) a consolidated statement of cash flows of
the Company and its consolidated Subsidiaries for the
portion of the fiscal year ending with such quarterly
fiscal period, setting forth in comparative form the
consolidated figures for the corresponding period of
the preceding fiscal year,
all in reasonable detail and certified as complete and
correct by an authorized financial officer of the Company;
provided, that the Company will have satisfied the
requirements of this Sec. 5.14(a) by the delivery within the
time period described hereinabove of its quarterly reports
on Form 10-Q as filed with the Commission so long as such
Forms 10-Q together contain quarterly statements reflecting
the financial position and results of operations of the
Company and its consolidated Subsidiaries for such quarters;
(b) Annual Statements. As soon as available and in
any event within 120 days after the close of each fiscal
year of the Company, copies of:
-12-
16
(1) a consolidated balance sheet of the Company
and its consolidated Subsidiaries as of the close of
such fiscal year, and
(2) a consolidated statement of income and
retained earnings and cash flows of the Company and its
consolidated Subsidiaries for such fiscal year,
in each case setting forth in comparative form the
consolidated figures for the preceding fiscal year, all in
reasonable detail and accompanied by a report thereon of a
firm of independent public accountants of recognized
national standing selected by the Company to the effect that
the consolidated financial statements present fairly, in all
material respects, the consolidated financial position of
the Company and its consolidated Subsidiaries as of the end
of the fiscal year being reported on and the consolidated
results of the operations and cash flows for said year in
conformity with GAAP and that the examination of such
accountants in connection with such financial statements has
been conducted in accordance with generally accepted
auditing standards and included such tests of the accounting
records and such other auditing procedures as said
accountants deemed necessary in the circumstances; provided,
that the Company will have satisfied the requirements of
this Sec. 5.14(b) by the delivery within the time period
described hereinabove of its annual report to shareholders
and its annual reports on Form 10-K as filed with the
Commission so long as such annual reports to shareholders
and Forms 10-K together contain annual statements reflecting
the financial position and results of operations of the
Company and consolidated Subsidiaries for such years;
(c) SEC and Other Reports. Promptly upon their
becoming available, one copy of each financial statement,
report, notice or proxy statement sent by the Company to
stockholders generally and of each regular or periodic
report (other than Form S-8 or any other form relating to
employee benefit plans or dividend reinvestment plans), and
any registration statement or prospectus filed by the
Company or any Subsidiary with any Securities exchange or
the Commission or any successor agency;
(d) Officer's Certificates. Within the periods
provided in paragraphs (a) and (b) above, a certificate of a
Responsible Officer of the Company stating that such officer
has reviewed the provisions of this Agreement and setting
forth: (1) the information and computations (in sufficient
detail) required in order to establish whether the Company
was in compliance with the requirements of Sec. 5.6 through
Sec. 5.10 at the end of the period covered by the financial
statements then being furnished, and (2) whether there
existed as of the date of such financial statements and
whether, to the best of such officer's knowledge, there
exists on the date of the certificate or existed at any time
during the period covered by such financial statements any
Default or Event of Default and, if any such condition or
event exists on the date of the certificate, specifying the
nature and period of existence thereof and the action the
Company is taking and proposes to take with respect thereto;
(e) Accountant's Certificates. Within the period
provided in paragraph (b) above, a certificate of the
accountants who render an opinion with respect to such
-13-
17
financial statements, stating that they have reviewed this
Agreement and stating further whether, in making their
audit, such accountants have become aware of any Default or
Event of Default under any of the terms or provisions of
this Agreement insofar as any such terms or provisions
pertain to or involve accounting matters or determinations,
and if any such condition or event then exists, specifying
the nature and period of existence thereof; and
(f) Requested Information. With reasonable
promptness, such other data and information as you or any
such Institutional Holder may reasonably request.
Without limiting the foregoing, the Company will permit you, so
long as you are the holder of any Note, and each Institutional
Holder of the then outstanding Notes (or such Persons as either
you or such Institutional Holder may designate), to visit and
inspect, under the Company's guidance, any of the properties of
the Company or any Restricted Subsidiary, to examine all of their
books of account, records, reports and other papers, to make
copies and extracts therefrom and to discuss their respective
affairs, finances and accounts with their respective officers,
employees, and independent public accountants (and by this
provision the Company authorizes said accountants to discuss with
you the finances and affairs of the Company and its Restricted
Subsidiaries) all at such reasonable times and as often as may be
reasonably requested. Any visitation shall be at the sole
expense of you or such Institutional Holder, unless a Default or
Event of Default shall have occurred and be continuing or the
holder of any Note or of any other evidence of Indebtedness of
the Company or any Restricted Subsidiary gives any written notice
or takes any other action with respect to a claimed default, in
which case, any such visitation or inspection shall be at the
sole expense of the Company.
All information which is furnished to or obtained by any
holder of any Note pursuant to this Sec. 5.14 shall be received and
held in confidence unless or until the same has been publicly
disclosed; provided, however, nothing herein contained shall
limit or impair the right or obligation of any Institutional
Holder of the Notes to disclose such information: (1) to its
auditors, attorneys, employees or agents, (2) when required by
any law, ordinance or governmental order, regulation, rule,
policy, investigation or any regulatory authority request, (3) as
may be required or appropriate in any report, statement or
testimony submitted to any municipal, state, provincial or
Federal regulatory body having or claiming to have jurisdiction
over such Institutional Holder or to the United States National
Association of Insurance Commissioners or similar organizations
or their successors, (4) which is publicly available or readily
ascertainable from public sources, or which is received by any
Institutional Holder of the Notes from a third Person who or
which is not bound to keep the same confidential, (5) in
connection with any proceeding, case or matter pending (or on its
face purported to be pending) before any court, tribunal,
arbitration board or any governmental agency, commission,
authority, board or similar entity, (6) in connection with the
enforcement by an Institutional Holder of its rights under or in
respect of this Agreement or the Notes after the occurrence of a
Default or Event of Default, or (7) to the extent necessary in
connection with any contemplated transfer of any of the Notes by
an Institutional Holder thereof (it being understood and agreed
that any such transferee which purchases such Notes shall itself
be bound by the terms and provisions hereof).
-14-
18
SECTION 6. EVENTS OF DEFAULT AND REMEDIES THEREFOR.
Section 6.1. Events of Default. Any one or more of the
following shall constitute an "Event of Default" as such term is
used herein:
(a) Default shall occur in the payment of interest on
any Note when the same shall have become due and such
default shall continue for more than five Business Days; or
(b) Default shall occur in the making of any required
prepayment on any of the Notes as provided in Sec. 2.1; or
(c) Default shall occur in the making of any payment
of the principal of any Note or premium, if any, thereon at
the expressed or any accelerated maturity date or at any
date fixed for prepayment; or
(d) Default shall occur in the observance or
performance of any other provision of this Agreement which
is not remedied within 30 days after the earlier of (1) the
day on which a Responsible Officer of the Company first
obtains knowledge of such default, or (2) the day on which
written notice thereof is given to the Company by the holder
of any Note; or
(e) Default shall be made in the payment of principal
of or interest on any evidence of Indebtedness of the
Company or any Restricted Subsidiary for borrowed money
aggregating $5,000,000 or more, as and when the same shall
become due and payable by the lapse of time, by declaration,
by call for redemption or otherwise, and such default shall
continue beyond the period of grace, if any, allowed with
respect thereto; or
(f) Default or the happening of an event shall occur
under any indenture, agreement, or other instrument under
which any Indebtedness of the Company or any Restricted
Subsidiary for borrowed money in an amount aggregating
$5,000,000 or more may be issued and such default or event
shall occur at the maturity of, or result in the
acceleration of the maturity of, any Indebtedness of the
Company or any Restricted Subsidiary outstanding thereunder,
and such acceleration shall not have been rescinded or
annulled within the period of grace, if any, allowed with
respect thereto;
(g) Any representation or warranty made by the Company
herein, or made by the Company in any statement or
certificate furnished by the Company in connection with the
consummation of the issuance and delivery of the Notes or
furnished by the Company pursuant hereto, is untrue in any
material respect as of the date of the issuance or making
thereof; or
(h) Final judgment or judgments for the payment of
money aggregating in excess of $500,000 is or are outstanding
against the Company or any Restricted Subsidiary or against
any property or assets of either and any one of such judgments
-15-
19
has remained unpaid, unvacated, unbonded or unstayed by appeal or
otherwise for a period of 30 days from the date of its entry; or
(i) A custodian, liquidator, trustee or receiver is
appointed for the Company or any Restricted Subsidiary or
for the major part of the property of either and is not
discharged within 60 days after such appointment; or
(j) The Company or any Restricted Subsidiary becomes
insolvent or bankrupt, is generally not paying its debts as
they become due or makes an assignment for the benefit of
creditors, or the Company or any Restricted Subsidiary
applies for or consents to the appointment of a custodian,
liquidator, trustee or receiver for the Company or such
Restricted Subsidiary or for the major part of the property
of either; or
(k) Bankruptcy, reorganization, arrangement or
insolvency proceedings, or other proceedings for relief
under any bankruptcy or similar law or laws for the relief
of debtors, are instituted by or against the Company or any
Restricted Subsidiary and, if instituted against the Company
or any Restricted Subsidiary, are consented to or are not
dismissed within 60 days after such institution.
Section 6.2. Notice to Holders. When any Event of Default
described in the foregoing Sec. 6.1 has occurred, or if the holder
of any Note or of any other evidence of Indebtedness for borrowed
money of the Company gives any notice or takes any other action
with respect to a claimed default, the Company agrees to give
notice within three Business Days of such event to all holders of
the Notes then outstanding.
Section 6.3. Acceleration of Maturities. When any Event of
Default described in paragraph (a), (b) or (c) of Sec. 6.1 has
happened and is continuing, any holder of any Note may, by notice
in writing sent in the manner provided in Sec. 9.6 to the Company,
declare the entire principal and all interest accrued on such
Note to be, and such Note shall thereupon become forthwith due
and payable, without any presentment, demand, protest or other
notice of any kind, all of which are hereby expressly waived.
When any Event of Default described in paragraph (a), (b) or (c)
of Sec. 6.1 has happened and is continuing, the holder or holders
of 25% or more of the principal amount of the Notes at the time
outstanding may, and when any Event of Default described in
paragraphs (d) through (h), inclusive, of said Sec. 6.1 has
happened and is continuing, the holder or holders of 51% or more
of the principal amount of the Notes at the time outstanding may,
by notice in writing sent in the manner provided in Sec. 9.6 to the
Company, declare the entire principal and all interest accrued on
all Notes to be, and all Notes shall thereupon become, forthwith
due and payable, without any presentment, demand, protest or
other notice of any kind, all of which are hereby expressly
waived. When any Event of Default described in paragraph (i),
(j) or (k) of Sec. 6.1 has occurred, then all outstanding Notes
shall immediately become due and payable without presentment,
demand or notice of any kind. Upon the Notes becoming due and
payable as a result of any Event of Default as aforesaid, the
Company will forthwith pay to the holders of the Notes the entire
principal and interest accrued on the Notes and, to the extent
not prohibited by applicable law, an amount as liquidated damages
for the loss of the bargain evidenced hereby (and not as a
penalty) equal to the Make-Whole Amount, determined as of
-16-
20
the date on which the Notes shall so become due and payable. No
course of dealing on the part of the holder or holders of any
Notes nor any delay or failure on the part of any holder of Notes
to exercise any right shall operate as a waiver of such right or
otherwise prejudice such holder's rights, powers and remedies.
The Company further agrees, to the extent permitted by law, to
pay to the holder or holders of the Notes all costs and expenses
incurred by them in the collection of any Notes upon any default
hereunder or thereon, including reasonable compensation to such
holder's or holders' attorneys for all services rendered in
connection therewith.
Section 6.4. Rescission of Acceleration. The provisions of
Sec. 6.3 are subject to the condition that if the principal of and
accrued interest on all or any outstanding Notes have been
declared immediately due and payable by reason of the occurrence
of any Event of Default described in paragraphs (a) through (h),
inclusive, of Sec. 6.1, the holders of 50% or more in aggregate
principal amount of the Notes then outstanding may, by written
instrument filed with the Company, rescind and annul such
declaration and the consequences thereof, provided that at the
time such declaration is annulled and rescinded:
(a) no judgment or decree has been entered for the
payment of any monies due pursuant to the Notes or this
Agreement;
(b) all arrears of interest upon all the Notes and all
other sums payable under the Notes and under this Agreement
(except any principal, interest or premium on the Notes
which has become due and payable solely by reason of such
declaration under Sec. 6.3) shall have been duly paid; and
(c) each and every other Default and Event of Default
shall have been made good, cured or waived pursuant to
Sec. 7.1;
and provided further, that no such rescission and annulment shall
extend to or affect any subsequent Default or Event of Default or
impair any right consequent thereto.
SECTION 7. AMENDMENTS, WAIVERS AND CONSENTS.
Section 7.1. Consent Required. Any term, covenant, agreement
or condition of this Agreement may, with the consent of the
Company, be amended or compliance therewith may be waived (either
generally or in a particular instance and either retroactively or
prospectively), if the Company shall have obtained the consent in
writing of the holders of at least 66-2/3% in aggregate principal
amount of outstanding Notes; provided that without the written
consent of the holders of all of the Notes then outstanding, no
such amendment or waiver shall be effective (a) which will change
the time of payment (including any prepayment required by Sec. 2.1)
of the principal of or the interest on any Note or change the
principal amount thereof or reduce the rate of interest thereon,
or (b) which will change any of the provisions with respect to
required or optional prepayments, or (c) which will change the
percentage of holders of the Notes required to consent to any
such amendment or waiver of any of the provisions of this Sec. 7 or
Sec. 6.
-17-
21
Section 7.2. Solicitation of Holders. So long as there are
any Notes outstanding, the Company will not solicit, request or
negotiate for or with respect to any proposed waiver or amendment
of any of the provisions of this Agreement or the Notes unless
each holder of Notes (irrespective of the amount of Notes then
owned by it) shall be informed thereof by the Company and shall
be afforded the opportunity of considering the same and shall be
supplied by the Company with sufficient information to enable it
to make an informed decision with respect thereto. 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, to any holder of Notes as
consideration for or as an inducement to entering into by any
holder of Notes of any waiver or amendment of any of the terms
and provisions of this Agreement or the Notes unless such
remuneration is concurrently offered, on the same terms, ratably
to the holders of all Notes then outstanding.
Section 7.3. Effect of Amendment or Waiver. Any such
amendment or waiver shall apply equally to all of the holders of
the Notes and shall be binding upon them, upon each future holder
of any Note and upon the Company, whether or not such Note shall
have been marked to indicate such amendment or waiver. No such
amendment or waiver shall extend to or affect any obligation not
expressly amended or waived or impair any right consequent
thereon.
SECTION 8. INTERPRETATION OF AGREEMENT; DEFINITIONS.
Section 8.1. Definitions. Unless the context otherwise
requires, the terms hereinafter set forth when used herein shall
have the following meanings and the following definitions shall
be equally applicable to both the singular and plural forms of
any of the terms herein defined:
"Affiliate" shall mean any Person (other than a Restricted
Subsidiary) (a) which directly or indirectly through one or more
intermediaries controls, or is controlled by, or is under common
control with, the Company, (b) which beneficially owns or holds
5% or more of any class of the Voting Stock of the Company or (c)
5% or more of the Voting Stock (or in the case of a Person which
is not a corporation, 5% or more of the equity interest) of which
is beneficially owned or held by the Company or a 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
Stock, by contract or otherwise.
"Attributable Indebtedness" shall mean in connection with a
Sale and Leaseback Transaction not satisfying the requirements of
Sec. 5.9(a) hereof, as of the date of any determination thereof, an
amount equal to the lesser of (a) the fair market value of the
property or assets which is or are the subject of the Sale and
Leaseback Transaction (as reasonably determined in good faith by
the Board of Directors of the Company at or about the time of the
consummation of such Sale and Leaseback Transaction) and (b) the
aggregate amount of the Rentals due and to become due (discounted
from the respective due dates thereof to such date at the interest
rate implicit in such lease per annum, with all such discounts to be
computed on the basis on a 360-day year of twelve 30-day months, and
-18-
22
otherwise in accordance with GAAP) under the lease relating to such
Sale and Leaseback Transaction.
"Business Day" means any day other than a Saturday, Sunday
or other day on which banks in St. Louis, Missouri or New York,
New York are required by law to close or are customarily closed.
"Capitalized Lease" shall mean any lease the obligation for
Rentals with respect to which is required to be capitalized on a
consolidated balance sheet of the lessee and its subsidiaries in
accordance with GAAP.
"Code" shall mean the Internal Revenue Code of 1986, as
amended.
"Capitalized Rentals" of any Person shall mean as of the
date of any determination thereof the amount at which the
aggregate Rentals due and to become due under all Capitalized
Leases under which such Person is a lessee would be reflected as
a liability on a consolidated balance sheet of such Person.
"Commission" shall mean the Securities and Exchange
Commission, or any successor agency thereto.
"Company" shall mean Angelica Corporation, a Missouri
corporation, and any Person who succeeds to all, or substantially
all, of the assets and business of Angelica Corporation.
"Consolidated" when used with respect to Attributable
Indebtedness, Funded Debt or Net Worth shall mean the
Attributable Indebtedness, Funded Debt or Net Worth, as the case
may be, of the Company and its Restricted Subsidiaries determined
on a consolidated basis in accordance with GAAP.
"Consolidated Net Tangible Assets" shall, without
duplication, mean as of the date of any determination thereof,
the total amount of all assets of the Company and its Restricted
Subsidiaries less the sum of:
(a) the amount, if any, at which intangible assets
(including goodwill, trade names, trademarks, patents,
organization expense and other similar intangibles but
excluding acquired customer contracts and non-competition
agreements) and unamortized debt discount and expense appear
on a consolidated balance sheet;
(b) any write-up of fixed assets after the date of
this Agreement; and
(c) all liabilities other than Minority Interests,
deferred taxes and Consolidated Funded Debt.
"Default" shall mean any event or condition the occurrence
of which would, with the lapse of time or the giving of notice,
or both, constitute an Event of Default.
-19-
23
"ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as amended, and any successor statute of similar
import, together with the regulations thereunder, in each case as
in effect from time to time. References to sections of ERISA
shall be construed to also refer to any successor sections.
"ERISA Affiliate" shall mean any corporation, trade or
business that is, along with the Company, a member of a
controlled group of corporations or a controlled group of trades
or businesses, as described in section 414(b) and 414(c),
respectively, of the Code or Section 4001 of ERISA.
"Event of Default" shall have the meaning set forth in
Sec. 6.1.
"Funded Debt" of any Person shall mean (a) all Indebtedness
of such Person for borrowed money or which has been incurred in
connection with the acquisition of assets in each case having a
final maturity of one or more than one year from the date of
determination thereof (or which is renewable or extendible at the
option of the obligor for a period or periods more than one year
from the date of determination), (b) all Capitalized Rentals of
such Person, and (c) all Guaranties by such Person of Funded Debt
of others.
"GAAP" shall mean generally accepted accounting principles
at the time.
"Guaranties" by any Person shall mean all obligations (other
than endorsements in the ordinary course of business of
negotiable instruments for deposit or collection) of such Person
guaranteeing, or in effect guaranteeing, any Indebtedness,
dividend or other obligation of any other Person (the "primary
obligor") in any manner, whether directly or indirectly,
including, without limitation, all obligations incurred through
an agreement, contingent or otherwise, by such Person: (a) to
purchase such Indebtedness or obligation or any property or
assets constituting security therefor, (b) to advance or supply
funds (1) for the purchase or payment of such Indebtedness or
obligation, (2) to maintain working capital or other balance
sheet condition or otherwise to advance or make available funds
for the purchase or payment of such Indebtedness or obligation,
(c) to lease property or to purchase Securities or other property
or services primarily for the purpose of assuring the owner of
such Indebtedness or obligation of the ability of the primary
obligor to make payment of the Indebtedness or obligation, or (d)
otherwise to assure the owner of the Indebtedness or obligation
of the primary obligor against loss in respect thereof. For the
purposes of all computations made under this Agreement, a
Guaranty in respect of any Indebtedness for borrowed money shall
be deemed to be Indebtedness equal to the principal amount of
such Indebtedness for borrowed money which has been guaranteed,
and a Guaranty in respect of any other obligation or liability or
any dividend shall be deemed to be Indebtedness equal to the
maximum aggregate amount of such obligation, liability or
dividend.
"Indebtedness" of any Person shall mean and include all
obligations of such Person which in accordance with GAAP shall be
classified upon a balance sheet of such Person as liabilities of such
Person, and in any event shall include all (a) obligations of such
Person for borrowed money or which has been incurred in connection
with the acquisition of property or assets, (b) obligations secured
by any Lien upon property or assets owned by such Person, even though
such Person has not assumed or become liable for the payment of such
-20-
24
obligations, (c) obligations created or arising under any conditional
sale or other title retention agreement with respect to property
acquired by such Person, notwithstanding the fact that the rights and
remedies of the seller, lender or lessor under such agreement in the
event of default are limited to repossession or sale of property, (d)
Capitalized Rentals and (e) Guaranties of obligations of others
of the character referred to in this definition.
"Institutional Holder" shall mean any of the following
Persons: (a) any bank, savings and loan association, savings
institution, trust company or national banking association,
acting for its own account or in a fiduciary capacity, (b) any
charitable foundation, (c) any insurance company, (d) any
fraternal benefit society, (e) any pension, retirement or profit
sharing trust or fund within the meaning of Title I of ERISA or
for which any bank, trust company, national banking association
or investment adviser registered under the Investment Advisers
Act of 1940, as amended, is acting as trustee or agent, (f) any
investment company or business development company, as defined in
the Investment Company Act of 1940, as amended, (g) any small
business investment company licensed under the Small Business
Investment Act of 1958, as amended, (h) any broker or dealer
registered under the Securities Exchange Act of 1934, as amended,
or any investment adviser registered under the Investment Adviser
Act of 1940, as amended, (i) any corporation, partnership,
Massachusetts or similar business trust or common or collective
investment vehicle, (j) any government, any public employees'
pension or retirement system, or any other government agency
supervising the investment of public funds, (k) any other entity
all of the equity owners of which are Institutional Holders or
(l) any other Person which may be within the definition of
"qualified institutional buyer" as such term is used in Rule
144A, as from time to time in effect, promulgated under the
Securities Act of 1933, as amended.
"Lien" shall mean any interest in property securing an
obligation owed to, or a claim by, a Person other than the owner
of the property, whether such interest is based on the common
law, statute or contract, and including but not limited to the
security interest lien arising from a mortgage, encumbrance,
pledge, conditional sale or trust receipt or a lease, consignment
or bailment for security purposes. The term "Lien" shall include
reservations, exceptions encroachments, easements, rights-of-way,
covenants, conditions, restrictions, leases and other title
exceptions and encumbrances (including, with respect to stock,
stockholder agreements, voting trust agreements, buy-back
agreements and all similar arrangements) affecting property. For
the purposes of this Agreement, the Company or a Restricted
Subsidiary shall be deemed to be the owner of any property which
it has acquired or holds subject to a conditional sale agreement,
Capitalized Lease or other arrangement pursuant to which title to
the property has been retained by or vested in some other Person
for security purposes and such retention or vesting shall
constitute a Lien.
"Make-Whole Amount" shall mean in connection with any
prepayment or acceleration of the Notes the excess, if any, of
(a) the aggregate present value as of the date of such prepayment
or payment of each dollar of principal being prepaid or paid
(taking into account the application of such prepayment or
payment required by Sec. 2.1) and the amount of interest
(exclusive of interest accrued to the date of prepayment or
payment) that would have been payable in respect of such
dollar if such prepayment or payment had not been made,
determined by discounting such amounts at the Reinvestment
Rate from the respective dates on which they would have
been payable, over (b) 100% of the principal amount of the
-21-
25
outstanding Notes being prepaid or paid. If the Reinvestment
Rate is equal to or higher than 8.225%, the Make-Whole Amount
shall be zero. For purposes of any determination of the
Make-Whole Amount:
"Reinvestment Rate" shall mean (1) the sum of .50%,
plus the yield reported on page "USD" of the Bloomberg
Financial Markets Services Screen (or, if not available, any
other nationally recognized trading screen reporting on-line
intraday trading in the United States government Securities)
at 11:00 A.M. (St. Louis, Missouri time) for the United
States government Securities having a maturity (rounded to
the nearest month) corresponding to the remaining Weighted
Average Life to Maturity of the principal of the Notes being
prepaid or paid (taking into account the application of such
prepayment or payment required by Sec. 2.1) or (2) in the
event that no nationally recognized trading screen reporting
on-line intraday trading in the United States government
Securities is available, Reinvestment Rate shall mean the
sum of .50%, plus the arithmetic mean of the yields for the
two columns under the heading "Week Ending" published in the
Statistical Release under the caption "Treasury Constant
Maturities" for the maturity (rounded to the nearest month)
corresponding to the Weighted Average Life to Maturity of
the principal of the Notes being prepaid or paid (taking
into account the application of such prepayment or payment
required by Sec. 2.1). If no maturity exactly corresponds to
such Weighted Average Life to Maturity, yields for the
published maturity next longer than the Weighted Average
Life to Maturity and for the published maturity next shorter
than the Weighted Average Life to Maturity shall be
calculated pursuant to the immediately preceding sentence
and the Reinvestment Rate shall be interpolated from such
yields on a straight-line basis, rounding in each of such
relevant periods to the nearest month. For the purposes of
calculating the "Reinvestment Rate", the most recent
Statistical Release published prior to the date of
determination of the Make-Whole Amount shall be used.
"Statistical Release" shall mean the then most recently
published statistical release designated "H.15(519)" or any
successor publication which is published weekly by the
Federal Reserve System and which establishes yields on
actively traded U.S. Government Securities adjusted to
constant maturities or, if such statistical release is not
published at the time of any determination hereunder, then
such other reasonably comparable index which shall be
designated by the holders of 66-2/3% in aggregate principal
amount of the outstanding Notes.
"Weighted Average Life to Maturity" of the principal
amount of the Notes being prepaid or paid shall mean, as of
the time of any determination thereof, the number of years
obtained by dividing the then Remaining Dollar-Years of such
principal by the aggregate amount of such principal. The
term "Remaining Dollar-Years" of such principal shall mean
the amount obtained by (1) multiplying the amount of
principal that would have become due on each scheduled
payment date if such prepayment or payment had not been made
by the number of years (calculated to the nearest one-
twelfth) which will elapse between the date of determination
and such scheduled payment date, and (2) totalling the
products obtained in (1).
-22-
26
"Minority Interests" shall mean any shares of stock of any
class of a Restricted Subsidiary (other than directors'
qualifying shares as required by law) that are not owned by the
Company and/or one or more of its Restricted Subsidiaries.
Minority Interests shall be valued by valuing Minority Interests
constituting preferred stock at the voluntary or involuntary
liquidating value of such preferred stock, whichever is greater,
and by valuing Minority Interests constituting common stock at
the book value of capital and surplus applicable thereto
adjusted, if necessary, to reflect any changes from the book
value of such common stock required by the foregoing method of
valuing Minority Interests in preferred stock.
"Multiemployer Plan" shall have the same meaning as in
ERISA.
"Net Worth" shall mean, as of the date of any determination
thereof, the amount of the capital stock accounts (net of
treasury stock, at cost) plus (or minus in the case of a deficit)
the surplus and retained earnings of the Company and its
Restricted Subsidiaries determined in accordance with GAAP.
"Overdue Rate" shall mean the lesser of (a) the maximum
interest rate permitted by law and (b) 9.225% per annum.
"Person" shall mean an individual, partnership, limited
liability company, corporation, trust or unincorporated
organization, and a government or agency or political subdivision
thereof.
"Plan" means a "pension plan," as such term is defined in
ERISA, established or maintained by the Company or any ERISA
Affiliate or as to which the Company or any ERISA Affiliate
contributed or is a member or otherwise may have any liability.
"Purchasers" shall have the meaning set forth in Sec. 1.1.
"Rentals" shall mean and include as of the date of any
determination thereof all fixed 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. Fixed rents under any so-called
"percentage leases" shall be computed solely on the basis of the
minimum rents, if any, required to be paid by the lessee
regardless of sales volume or gross revenues.
"Reportable Event" shall have the same meaning as in ERISA.
"Responsible Officer" shall mean the Chief Executive
Officer, the Chief Financial Officer or the Treasurer of the
Company.
"Restricted Subsidiary" shall mean each Subsidiary (a)
80% or more (by number of votes) of the Voting Stock of which
is legally and beneficially owned by the Company and/or
-23-
27
one or more Restricted Subsidiaries and (b) which has not been
designated as an Unrestricted Subsidiary in Annex 1 to Exhibit B
attached hereto or from time to time by the Board of Directors of
the Company, provided that no Restricted Subsidiary may be
designated an Unrestricted Subsidiary if, immediately after
giving effect thereto, a Default or Event of Default would exist
and that immediately after giving effect to the designation of
such Restricted Subsidiary as an Unrestricted Subsidiary, such
Subsidiary shall have no Indebtedness of or continuing investment
in the capital stock or other Securities of the Company or any
other Restricted Subsidiary.
"Secured Funded Debt" shall, without duplication, mean all
Indebtedness for borrowed money which is secured by a mortgage,
security interest, pledge, conditional sale or other title
retention agreement, or other Lien upon any assets of the Company
or a Restricted Subsidiary but shall not include Capitalized
Rentals, or liabilities in connection with industrial revenue
bond financing or pollution control bond financing.
"Security" shall have the same meaning as in Section 2(1) of
the Securities Act of 1933, as amended.
The term "subsidiary" shall mean as to any particular parent
corporation any corporation of which more than 50% (by number of
votes) of the Voting Stock shall be beneficially owned, directly
or indirectly, by such parent corporation. The term "Subsidiary"
shall mean a subsidiary of the Company.
"Unrestricted Subsidiary" shall mean any Subsidiary which is
designated as an Unrestricted Subsidiary in Annex 1 to Exhibit B
attached hereto or from time to time by the Board of Directors of
the Company, provided that no Restricted Subsidiary may be
designated an Unrestricted Subsidiary if, immediately after
giving effect thereto, a Default or Event of Default would exist.
"Voting Stock" shall mean Securities of any class or
classes, the holders of which are ordinarily, in the absence of
contingencies, entitled to elect a majority of the corporate
directors (or Persons performing similar functions).
"Wholly-owned" when used in connection with any Subsidiary
shall mean a Subsidiary of which all of the issued and
outstanding shares of stock (except shares required as directors'
qualifying shares) and all Indebtedness for borrowed money shall
be owned by the Company and/or one or more of its Wholly-owned
Subsidiaries.
Section 8.2. Accounting Principles. Where the character or
amount of any asset or liability or item of income or expense is
required to be determined or any consolidation or other
accounting computation is required to be made for the purposes of
this Agreement, the same shall be done in accordance with GAAP,
to the extent applicable, except where such principles are
inconsistent with the requirements of this Agreement.
Section 8.3. Directly or Indirectly. Where any provision
in this Agreement refers to action to be taken by any Person,
or which such Person is prohibited from taking, such
-24-
28
provision shall be applicable whether the action in question is
taken directly or indirectly by such Person.
SECTION 9. MISCELLANEOUS.
Section 9.1. Registered Notes. The Company shall cause to be
kept at its principal office a register for the registration and
transfer of the Notes (hereinafter called the "Note Register"),
and the Company will register or transfer or cause to be
registered or transferred, as hereinafter provided any Note
issued pursuant to this Agreement.
At any time and from time to time the registered holder of
any Note which has been duly registered as hereinabove provided
may transfer such Note upon surrender thereof at the principal
office of the Company duly endorsed or accompanied by a written
instrument of transfer duly executed by the registered holder of
such Note or its attorney duly authorized in writing.
The Person in whose name any registered Note shall be
registered shall be deemed and treated as the owner and holder
thereof for all purposes of this Agreement. Payment of or on
account of the principal, premium, if any, and interest on any
registered Note shall be made to or upon the written order of
such registered holder.
Section 9.2. Exchange of Notes. At any time and from time to
time, upon not less than ten days' notice to that effect given by
the holder of any Note initially delivered or of any Note
substituted therefor pursuant to Sec. 9.1, this Sec. 9.2 or Sec. 9.3,
and, upon surrender of such Note at its office, the Company will
deliver in exchange therefor, without expense to such holder,
except as set forth below, a Note for the same aggregate
principal amount as the then unpaid principal amount of the Note
so surrendered, or Notes in the denomination of $500,000 or any
amount in excess thereof as such holder shall specify, dated as
of the date to which interest has been paid on the Note so
surrendered or, if such surrender is prior to the payment of any
interest thereon, then dated as of the date of issue, registered
in the name of such Person or Persons as may be designated by
such holder, and otherwise of the same form and tenor as the
Notes so surrendered for exchange. The Company may require the
payment of a sum sufficient to cover any stamp tax or
governmental charge imposed upon such exchange or transfer.
Section 9.3. Loss, Theft, Etc. of Notes. Upon receipt of
evidence satisfactory to the Company of the loss, theft,
mutilation or destruction of any Note, and in the case of any
such loss, theft or destruction upon delivery of a bond of
indemnity in such form and amount as shall be reasonably
satisfactory to the Company, or in the event of such mutilation
upon surrender and cancellation of the Note, the Company will
make and deliver without expense to the holder thereof, a new
Note, of like tenor, in lieu of such lost, stolen, destroyed or
mutilated Note. If the Purchaser or any subsequent Institutional
Holder is the owner of any such lost, stolen or destroyed Note,
then the affidavit of an authorized officer of such owner,
setting forth the fact of loss, theft or destruction and of its
ownership of such Note at the time of such loss, theft or
destruction shall be accepted as satisfactory evidence thereof
and no further indemnity shall be required as a condition to the
execution and delivery of a new Note other than the written
agreement of such owner to indemnify the Company.
-25-
29
Section 9.4. Expenses, Stamp Tax Indemnity. Whether or not
the transactions herein contemplated shall be consummated, the
Company agrees to pay directly all of your reasonable out-of-
pocket expenses in connection with the preparation, execution and
delivery of this Agreement and the transactions contemplated
hereby, including but not limited to the reasonable charges and
disbursements of Chapman and Cutler, your special counsel,
duplicating and printing costs and charges for shipping the
Notes, adequately insured to you at your home office or at such
other place as you may designate, and all such expenses relating
to any amendment, waivers or consents pursuant to the provisions
hereof (whether or not the same are actually executed and
delivered), including, without limitation, any amendments,
waivers, or consents resulting from any work-out, renegotiation
or restructuring relating to the performance by the Company of
its obligations under this Agreement and the Notes. The Company
also agrees to pay, within five Business Days of receipt thereof,
supplemental statements of Chapman and Cutler for disbursements
unposted or not incurred as of the Closing Date. The Company
further agrees that it will pay and save you harmless against any
and all liability with respect to stamp and other taxes, if any,
which may be payable or which may be determined to be payable in
connection with the execution and delivery of this Agreement or
the Notes, whether or not any Notes are then outstanding. The
Company agrees to protect and indemnify you against any liability
for any and all brokerage fees and commissions payable or claimed
to be payable to any Person in connection with the transactions
contemplated by this Agreement. Without limiting the foregoing,
the Company agrees to pay the cost of obtaining a private
placement number for the Notes and authorizes the submission of
such information as may be required by Standard & Poor's CUSIP
Service Bureau for the purpose of obtaining such number.
Section 9.5. Powers and Rights Not Waived; Remedies
Cumulative. No delay or failure on the part of the holder of any
Note in the exercise of any power or right shall operate as a
waiver thereof; nor shall any single or partial exercise of the
same preclude any other or further exercise thereof, or the
exercise of any other power or right, and the rights and remedies
of the holder of any Note are cumulative to, and are not
exclusive of, any rights or remedies any such holder would
otherwise have.
Section 9.6. Notices. All communications provided for
hereunder shall be in writing and, if to you, delivered or mailed
prepaid by overnight air courier or by facsimile communication,
in each case addressed to you at your address appearing on
Schedule I to this Agreement or such other address as you or the
subsequent holder of any Note initially issued to you may
designate to the Company in writing, and if to the Company,
delivered or mailed by prepaid overnight air courier or by
facsimile communication, to the Company at 424 South Woods Mill
Road, Chesterfield, Missouri 63017, Attention: Chief Financial
Officer or to such other address as the Company may in writing
designate to you or to a subsequent holder of the Note initially
issued to you; provided, however, that a notice to you by
overnight air courier shall only be effective if delivered to you
at a street address designated for such purpose in Schedule I,
and a notice to you by facsimile communication shall only be
effective if made by confirmed transmission to you at a telephone
number designated for such purpose in Schedule I, or, in either
case, as you or a subsequent holder of any Note initially issued
to you may designate to the Company in writing.
-26-
30
Section 9.7. Successors and Assigns. This Agreement shall be
binding upon the Company and its successors and assigns and shall
inure to your benefit and to the benefit of your successors and
assigns, including each successive holder or holders of any
Notes; provided, however, that no transferee of the Notes
purchased by you hereunder other than a transferee which is an
Institutional Holder shall be entitled to the benefits of
Sec. 5.14(f) hereof.
Section 9.8. Survival of Covenants and Representations. All
covenants, representations and warranties made by the Company
herein and in any certificates delivered pursuant hereto, whether
or not in connection with the Closing Date, shall survive the
closing and the delivery of this Agreement and the Notes.
Section 9.9. Severability. Should any part of this Agreement
for any reason be declared invalid or unenforceable, such
decision shall not affect the validity or enforceability of any
remaining portion, which remaining portion shall remain in force
and effect as if this Agreement had been executed with the
invalid or unenforceable portion thereof eliminated and it is
hereby declared the intention of the parties hereto that they
would have executed the remaining portion of this Agreement
without including therein any such part, parts or portion which
may, for any reason, be hereafter declared invalid or
unenforceable.
Section 9.10. Governing Law. This Agreement and the Notes
issued and sold hereunder shall be governed by and construed in
accordance with Missouri law.
Section 9.11. Captions. The descriptive headings of the
various Sections or parts of this Agreement are for convenience
only and shall not affect the meaning or construction of any of
the provisions hereof.
-27-
31
The execution hereof by you shall constitute a contract
between us for the uses and purposes hereinabove set forth, and
this Agreement may be executed in any number of counterparts,
each executed counterpart constituting an original but all
together only one agreement.
ANGELICA CORPORATION
By /s/ T. M. Armstrong
---------------------------------
Its Senior Vice President and
Chief Financial Officer
Accepted as of May 1, 1995.
-------
NATIONWIDE LIFE INSURANCE COMPANY
By /s/ John G. Powles
---------------------------------
Its John G. Powles
Vice President - Subsidiary &
Affiliate Investments
-28-
32
The execution hereof by you shall constitute a contract
between us for the uses and purposes hereinabove set forth, and
this Agreement may be executed in any number of counterparts,
each executed counterpart constituting an original but all
together only one agreement.
ANGELICA CORPORATION
By /s/ T. M. Armstrong
---------------------------------
Its Senior Vice President and
Chief Financial Officer
Accepted as of May 1, 1995.
-------
AMERICAN UNITED LIFE INSURANCE
COMPANY
By /s/ Kent R. Adams
---------------------------------
Its Kent R. Adams
Vice President
-28-
33
The execution hereof by you shall constitute a contract
between us for the uses and purposes hereinabove set forth, and
this Agreement may be executed in any number of counterparts,
each executed counterpart constituting an original but all
together only one agreement.
ANGELICA CORPORATION
By /s/ T. M. Armstrong
---------------------------------
Its Senior Vice President and
Chief Financial Officer
Accepted as of May 1, 1995.
-------
AID ASSOCIATION FOR LUTHERANS
By /s/ James Abitz
---------------------------------
Its James Abitz
Vice President - Securities
-28-
34
The execution hereof by you shall constitute a contract
between us for the uses and purposes hereinabove set forth, and
this Agreement may be executed in any number of counterparts,
each executed counterpart constituting an original but all
together only one agreement.
ANGELICA CORPORATION
By /s/ T. M. Armstrong
---------------------------------
Its Senior Vice President and
Chief Financial Officer
Accepted as of May 1, 1995.
-------
MODERN WOODMEN OF AMERICA
By /s/ J. V. Standaert
---------------------------------
Its National Secretary
J. V. Standaert
-28-
35
NAMES AND ADDRESSES OF PURCHASERS
AND AMOUNTS OF COMMITMENTS
PRINCIPAL AMOUNT
NAME AND ADDRESS OF NOTES TO BE
OF PURCHASER PURCHASED
NATIONWIDE LIFE INSURANCE COMPANY $10,000,000
One Nationwide Plaza
Columbus, Ohio 43215-2220
Attention: Corporate Fixed-Income Securities
Payments
All payments on or in respect of the Notes to be by bank wire
transfer of Federal or other immediately available funds
(identifying each payment as "Angelica Corporation, 8.225% Senior
Notes due 2006, PPN 034663 B@ 2, principal or interest") to:
Morgan Guaranty Trust Company of New York
ABA #021-000-238
JOURNAL #999-99-024
F/A/O Nationwide Life Insurance Company Custody
A/C #71615
Attention: Custody Service Dept.
Notices
All notices of payment, on or in respect of the Notes and written
confirmation of each such payment to:
Nationwide Life Insurance Company
One Nationwide Plaza (1-32-09)
Columbus, Ohio 43215-2220
Attention: Corporate Money Management
All notices and communications other than those in respect of
payments to be addressed as follows:
Nationwide Life Insurance Company
One Nationwide Plaza (1-33-07)
Columbus, Ohio 43215-2220
Attention: Corporate Fixed-Income Securities
Name of Nominee in which Notes are to be issued: None
Tax Identification No.: 31-4156830
SCHEDULE I
(to Note Agreement)
36
PRINCIPAL AMOUNT
NAME AND ADDRESS OF NOTES TO BE
OF PURCHASER PURCHASED
AMERICAN UNITED LIFE INSURANCE COMPANY $10,000,000
One American Square (5 Notes in
Post Office Box 368 $2,000,000
Indianapolis, Indiana 46206 Denominations)
Attention: Securities Department
Payments
All payments on or in respect of the Notes to be by bank wire
transfer of Federal or other immediately available funds
(identifying each payment as "Angelica Corporation, 8.225% Senior
Notes due 2006, PPN 034663 B@ 2, principal or interest") to:
Bank of America (ABA #071000039)
Trust Securities
Level A, Clark Street, Window 41
231 South LaSalle Street
Chicago, Illinois 60697
for credit to: American United Life Insurance Company
Account Number 303010006983
Notices
All notices and communications, including notices with respect to
payments and written confirmation of each such payment, to be
addressed as first provided above.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 35-0145825
I-2
37
PRINCIPAL AMOUNT
NAME AND ADDRESS OF NOTES TO BE
OF PURCHASER PURCHASED
AID ASSOCIATION FOR LUTHERANS $5,000,000
432l North Ballard Road
Appleton, Wisconsin 54919
Attention: Investment Department
Payments
All payments of principal, interest and premium on the account of
the Notes shall be made by bank wire transfer (in immediately
available funds) to:
Harris Trust and Savings Bank, Chicago (ABA #071 000 288)
A/C Number 109-211-3
Attention: Trust Collection/P&I
Reference Information:
Angelica Corporation
8.225%, Senior Notes
2006
PPN 034663 B@ 2
Payable Date
Principal and interest breakdown
Notices
All notices on or in respect to the Notes and written
confirmation of each such payment to be addressed to:
Aid Association for Lutherans
4321 North Ballard Road
Appleton, Wisconsin 54919
Attention: Investment Accounting
All corporate action notices to be addressed to:
Harris Trust and Savings Bank
111 West Monroe Street
Chicago, Illinois 60690
Attention: Institutional Custody-5E
All other notices and communications to be addressed as first
provided above.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 39-0123480
I-3
38
PRINCIPAL AMOUNT
NAME AND ADDRESS OF NOTES TO BE
OF PURCHASER PURCHASED
MODERN WOODMEN OF AMERICA $5,000,000
1701 1st Avenue
Rock Island, Illinois 61201
Attention: Investment Department
Telecopier Number: (309) 786-1701
Payments
All payments on or in respect of the Notes to be by bank wire
transfer of Federal or other immediately available funds
(identifying each payment as "Angelica Corporation, 8.225% Senior
Notes due 2006, PPN 034663 B@ 2, principal or interest") to:
Harris Trust and Savings Bank (ABA #071000288)
111 West Monroe Street
Chicago, Illinois 60690
for credit to: Modern Woodmen of America
Account Number 347 904 5
Notices
All notices and communications, including notices with respect to
payments and written confirmation of each such payment, to be
addressed as first provided above.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 36-149-3430
I-4
39
FUNDED DEBT OF THE COMPANY AND ITS
SUBSIDIARIES AS OF MARCH 25, 1995
UNSECURED DEBT:
Prudential Insurance Company
of America Unsecured $33,375,000
Prudential Insurance Company Unsecured $10,000,000
Nationwide Life Insurance Company Unsecured $22,000,000
Employers Life Insurance Company
of Wausaw Unsecured $ 3,000,000
-----------
$68,375,000
-----------
PROPERTY SUBJECT TO LIENS:
First Union National Bank Alamo, TN
Distribution Center $ 2,587,500
City of Lorain, OH Real Estate
1820 Iowa Avenue
Lorain, OH $ 145,557
City of Philadelphia, PA Real Estate
58th and Lindbergh
Philadelphia, PA $ 296,845
Small Business Administration Real Estate
3939 Market Street
San Diego, CA $ 320,051
-----------
$ 3,349,953
-----------
COMPANY-OWNED LIFE INSURANCE:
Various Insurance Companies Life Insurance
Proceeds $ 336,808
-----------
CAPITALIZED LEASES:
City of Louisville Louisville, MS $ 36,540
City of Louisville Louisville, MS $ 52,213
Tallahatchie County, MS Sumner, MS $ 90,826
-----------
$ 179,579
-----------
$72,241,340
===========
SCHEDULE II
(to Note Agreement)
40
LIENS SECURING FUNDED DEBT (INCLUDING CAPITALIZED LEASES)
AS OF MARCH 25, 1995
AMOUNT OF
DESCRIPTION OF OUTSTANDING LIEN SECURED DEBT
- ------------------------------- ------------
PROPERTY SUBJECT TO LIENS:
First Union National Bank Alamo, TN
Distribution Center $2,587,500
City of Lorain, OH Real Estate
1820 Iowa Avenue
Lorain, OH $ 145,557
City of Philadelphia, PA Real Estate
58th and Lindbergh
Philadelphia, PA $ 296,845
Small Business Administration Real Estate
3939 Market Street
San Diego, CA $ 320,051
----------
$3,349,953
----------
CAPITALIZED LEASES:
City of Louisville Louisville, MS $ 36,540
City of Louisville Louisville, MS $ 52,213
Tallahatchie County, MS Sumner, MS $ 90,826
----------
$ 179,579
----------
COMPANY-OWNED LIFE INSURANCE:
Various Insurance Companies Life Insurance
Proceeds $ 336,808
----------
$3,866,340
==========
SCHEDULE III
(to Note Agreement)
41
ANGELICA CORPORATION
8.225% Senior Note
Due May 1, 2006
No. R------- ---------, ----
$ PPN 034663 B@ 2
ANGELICA CORPORATION, a Missouri corporation (the
"Company"), for value received, hereby promises to pay to
or registered assigns
on the first day of May, 2006
the principal amount of
DOLLARS ($--------------)
and to pay interest (computed on the basis of a 360-day year of
twelve 30-day months) on the principal amount from time to time
remaining unpaid hereon at the rate of 8.225% per annum from the
date hereof until maturity, payable quarterly on the first day of
each February, May, August and November in each year (commencing
on the first of such dates after the date hereof) and at
maturity. The Company agrees to pay interest on overdue
principal (including any overdue required or optional prepayment
of principal) and premium, if any, and (to the extent legally
enforceable) on any overdue installment of interest, at the
Overdue Rate after the due date, whether by acceleration or
otherwise, until paid. "Overdue Rate" shall mean the lesser of
(a) the maximum interest rate permitted by law and (b) 9.225% per
annum.
Both the principal hereof and interest hereon are payable at
the principal office of the Company in Chesterfield, Missouri in
coin or currency of the United States of America which at the
time of payment shall be legal tender for the payment of public
and private debts. If any amount of principal, premium, if any,
or interest on or in respect of this Note becomes due and payable
on any date which is not a Business Day, such amount shall be
payable on the next succeeding Business Day. "Business Day"
means any day other than a Saturday, Sunday or other day on which
banks in St. Louis, Missouri or New York, New York are required
by law to close or are customarily closed.
This Note is one of the 8.225% Senior Notes due May 1, 2006
(the "Notes") of the Company in the aggregate principal amount of
$30,000,000 issued or to be issued under and pursuant to the
terms and provisions of the separate Note Agreements, each dated
as of March 1, 1995 (collectively, the "Note Agreements"),
entered into by the Company with the original Purchasers therein
referred to and this Note and the holder hereof are entitled
equally and ratably with the holders of all other Notes
outstanding under the Note Agreements to all the benefits
provided for thereby or referred to therein. Reference is hereby
made to the Note Agreements for a statement of such rights and
benefits.
EXHIBIT A
(to Note Agreement)
42
This Note and the other Notes outstanding under the Note
Agreements may be declared due prior to their expressed maturity
dates, all in the events, on the terms and in the manner and
amounts as provided in the Note Agreements.
The Notes are not subject to prepayment or redemption at the
option of the Company prior to their expressed maturity dates
except on the terms and conditions and in the amounts and with
the premium, if any, set forth in the Note Agreements.
This Note is registered on the books of the Company and is
transferable only by surrender thereof at the principal office of
the Company duly endorsed or accompanied by a written instrument
of transfer duly executed by the registered holder of this Note
or its attorney duly authorized in writing. Payment of or on
account of principal, premium, if any, and interest on this Note
shall be made only to or upon the order in writing of the
registered holder.
ANGELICA CORPORATION
By----------------------------------
Its Senior Vice President and
Chief Financial Officer
A-2
43
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to you as follows:
1. Subsidiaries. Annex 1 attached hereto states the
name of each of the Company's Subsidiaries, its jurisdiction
of incorporation and the percentage of its Voting Stock
owned by the Company and/or its Subsidiaries. Those
Subsidiaries listed in Section 1 of said Annex 1 constitute
Restricted Subsidiaries. The Company and each Subsidiary
has good and marketable title to all of the shares it
purports to own of the stock of each Subsidiary, free and
clear in each case of any Lien. All such shares have been
duly issued and are fully paid and non-assessable.
2. Corporate Organization and Authority. The
Company, and each Restricted Subsidiary,
(a) is a corporation duly organized, validly
existing and in good standing under the laws of its
jurisdiction of incorporation;
(b) has all requisite power and authority and all
necessary licenses and permits to own and operate its
properties and to carry on its business as now
conducted and as presently proposed to be conducted;
and
(c) is duly licensed or qualified and is in good
standing as a foreign corporation in each jurisdiction
wherein the nature of the business transacted by it or
the nature of the property owned or leased by it makes
such licensing or qualification necessary.
3. Company Disclosures. You have heretofore been
furnished with a copy of the Company's Fiscal 1994 Annual
Report, as well as the Form 10-Q's dated as of June 2, 1994,
August 31, 1994 and December 2, 1994 and Interim Reports
dated May 19, 1994, August 18, 1994 and November 17, 1994
(collectively, the "Company Disclosures").
4. Financial Statements. (a) The consolidated
balance sheets of the Company and its consolidated
Subsidiaries as of January 29, 1994, January 30, 1993,
February 1, 1992, January 26, 1991 and January 27, 1990 and
the statements of income and retained earnings and changes
in financial position or cash flows, as the case may be, for
the fiscal years ended on said dates, each accompanied by a
report thereon containing an opinion unqualified as to scope
limitations imposed by the Company and otherwise without
qualification except as therein noted, by Arthur Andersen &
Co., have been prepared in accordance with GAAP consistently
applied except as therein noted, are correct and complete
and present fairly, in all material respects, the financial
position of the Company and its Subsidiaries as of such
dates and the results of their operations and changes in
their financial position or cash flows for such periods.
EXHIBIT B
(to Note Agreement)
44
(b) Since January 29, 1994, there has been no change
in the condition, financial or otherwise, of the Company and
its consolidated Subsidiaries as shown on the consolidated
balance sheet as of such date except changes in the ordinary
course of business, none of which individually or in the
aggregate has been materially adverse.
5. Indebtedness. Schedule II to the Note Agreement
correctly describes all Indebtedness for borrowed money of
the Company and its Restricted Subsidiaries outstanding on
March 25, 1995.
6. Full Disclosure. Neither the financial statements
referred to in paragraph 4 hereof nor the Agreements, the
Company Disclosures or any other written statement furnished
by the Company to you in connection with the negotiation of
the sale of the Notes, contains any untrue statement of a
material fact or omits a material fact necessary to make the
statements contained therein or herein not misleading.
There is no fact peculiar to the Company or its Subsidiaries
which the Company has not disclosed to you in writing which
materially affects adversely nor, so far as the Company can
now foresee, will materially affect adversely the
properties, business, prospects, profits or financial
condition of the Company and its Restricted Subsidiaries,
taken as a whole.
7. Pending Litigation. There are no proceedings
pending or, to the knowledge of the Company, threatened
against or affecting the Company or any Restricted
Subsidiary in any court or before any governmental authority
or arbitration board or tribunal which involve the
possibility of materially and adversely affecting the
properties, business, prospects, profits or financial
condition of the Company and its Restricted Subsidiaries.
8. Title to Properties. The Company and each
Restricted Subsidiary has good and marketable title in fee
simple (or its equivalent under applicable law) to all
material parcels of real property and has good title to all
the other material items of property it purports to own,
including that reflected in the most recent balance sheet
referred to in paragraph 4 hereof, except as sold or
otherwise disposed of in the ordinary course of business and
except for Liens permitted by the Agreements.
9. Patents and Trademarks. The Company and each
Restricted Subsidiary owns or possesses all the patents,
trademarks, trade names, service marks, copyrights, licenses
and rights with respect to the foregoing necessary for the
present and planned future conduct of its business, without
any known conflict with the rights of others, the non-
ownership or non-possession of which, as the case may be,
would materially and adversely affect the properties,
business, prospects, profits or financial condition of the
Company and the Restricted Subsidiaries, taken as a whole.
10. Sale is Legal and Authorized. The sale of the
Notes and compliance by the Company with all of the
provisions of the Agreements and the Notes--
(a) are within the corporate powers of the
Company;
B-2
45
(b) will not violate any provisions of any law or
any order of any court or governmental authority or
agency and will not conflict with or result in any
breach of any of the terms, conditions or provisions
of, or constitute a default under the Restated Articles
of Incorporation or By-laws of the Company or any
indenture or other agreement or instrument to which the
Company is a party or by which it may be bound or
result in the imposition of any Liens or encumbrances
on any property of the Company; and
(c) have been duly authorized by proper corporate
action on the part of the Company (no action by the
stockholders of the Company being required by law, by
the Restated Articles of Incorporation or By-laws of
the Company or otherwise), executed and delivered by
the Company and the Agreements and the Notes constitute
the legal, valid and binding obligations, contracts and
agreements of the Company enforceable in accordance
with their respective terms.
11. No Defaults. No Default or Event of Default has
occurred and is continuing. The Company is not in default
in the payment of principal or interest on any Indebtedness
for borrowed money and is not in default under any
instrument or instruments or agreements under and subject to
which any Indebtedness for borrowed money has been issued
and no event has occurred and is continuing under the
provisions of any such instrument or agreement which with
the lapse of time or the giving of notice, or both, would
constitute an event of default thereunder.
12. Governmental Consent. No approval, consent or
withholding of objection on the part of any regulatory body,
state, Federal or local, is necessary in connection with the
execution and delivery by the Company of the Agreements or
the Notes or compliance by the Company with any of the
provisions of the Agreements or the Notes.
13. Taxes. All tax returns required to be filed by
the Company or any Restricted Subsidiary in any jurisdiction
have, in fact, been filed, and all taxes, assessments, fees
and other governmental charges upon the Company or any
Restricted Subsidiary or upon any of their respective
properties, income or franchises, which are shown to be due
and payable in such returns have been paid. For all taxable
years ending on or before January 26, 1991 the Federal
income tax liability of the Company and its Restricted
Subsidiaries has been satisfied and either the period of
limitations on assessment of additional Federal income tax
has expired or the Company and its Restricted Subsidiaries
have entered into an agreement with the Internal Revenue
Service closing conclusively the total tax liability for the
taxable year. The Company does not know of any proposed
additional tax assessment against it for which adequate
provision has not been made on its accounts, and no material
controversy in respect of additional Federal or state income
taxes due since said date is pending or to the knowledge of
the Company threatened. The provisions for taxes on the
books of the Company and each Restricted Subsidiary are
adequate for all open years, and for its current fiscal
period.
B-3
46
14. Use of Proceeds. The net proceeds from the sale
of the Notes will be used for general corporate purposes.
None of the transactions contemplated in the Agreements
(including, without limitation thereof, the use of proceeds
from the issuance of the Notes) will violate or result in a
violation of Section 7 of the Securities Exchange Act of
1934, as amended, or any regulation issued pursuant thereto,
including, without limitation, Regulations G, T and X of the
Board of Governors of the Federal Reserve System, 12 C.F.R.,
Chapter II. Neither the Company nor any Subsidiary owns or
intends to carry or purchase any "margin stock" within the
meaning of said Regulation G. None of the proceeds from the
sale of the Notes will be used to purchase, or refinance any
borrowing the proceeds of which were used to purchase, any
"security" within the meaning of the Securities Exchange Act
of 1934, as amended.
15. Private Offering. Neither the Company, directly
or indirectly, nor any agent on its behalf has offered or
will offer the Notes or any similar Security or has
solicited or will solicit an offer to acquire the Notes or
any similar Security from any Person so as to bring the
issuance and sale of the Notes within the provisions of
Section 5 of the Securities Act of 1933, as amended.
16. ERISA. The consummation of the transactions
provided for in the Agreements and compliance by the Company
with the provisions thereof and the Notes issued thereunder
will not involve any prohibited transaction within the
meaning of ERISA or Section 4975 of the Code. Each Plan
complies in all material respects with all applicable
statutes and governmental rules and regulations, and (a) no
Reportable Event has occurred and is continuing with respect
to any Plan, (b) neither the Company nor any ERISA Affiliate
has withdrawn from any Plan or Multiemployer Plan or
instituted steps to do so except where such withdrawal would
not materially adversely effect the business, prospects,
profits, properties or financial condition of the Company
and its Restricted Subsidiaries, taken as a whole, and (c)
no steps have been instituted to terminate any Plan, except
where such termination would not materially adversely effect
the business, prospects, profits, properties or financial
condition of the Company and its Restricted Subsidiaries,
taken as a whole. No condition exists or event or
transaction has occurred in connection with any Plan which
could result in the incurrence by the Company or any ERISA
Affiliate of any material liability, fine or penalty. No
Plan maintained by the Company or any ERISA Affiliate, nor
any trust created thereunder, has incurred any "accumulated
funding deficiency" as defined in Section 302 of ERISA nor
does the present value of all benefits vested under all
Plans exceed, as of the last annual valuation date, the
value of the assets of the Plans allocable to such vested
benefits. Neither the Company nor any ERISA Affiliate has
any contingent liability with respect to any post-retirement
"welfare benefit plan" (as such term is defined in ERISA)
except as has been disclosed to the Purchasers.
17. Compliance with Law. Neither the Company nor any
Restricted Subsidiary (a) is in violation of any law,
ordinance, franchise, governmental rule or regulation to
which it is subject; or (b) has failed to obtain any
license, permit, franchise or other governmental
authorization necessary to the ownership of its
B-4
47
property or to the conduct of its business, which violation or
failure to obtain would materially adversely affect the
business, prospects, profits, properties or financial condition
of the Company and its Restricted Subsidiaries, taken as a
whole, or impair the ability of the Company to perform its
obligations contained in the Agreements or the Notes.
Neither the Company nor any Restricted Subsidiary is in
default with respect to any order of any court or
governmental authority or arbitration board or tribunal.
18. Compliance with Environmental Laws. To the best
of its knowledge after reasonable investigation, the Company
is not in violation of any applicable Federal, state, or
local laws, statutes, rules, regulations or ordinances
relating to public health, safety or the environment,
including, without limitation, relating to releases,
discharges, emissions or disposals to air, water, land or
ground water, to the withdrawal or use of ground water, to
the use, handling or disposal of polychlorinated biphenyls
(PCB's), asbestos or urea formaldehyde, to the treatment,
storage, disposal or management of hazardous substances
(including, without limitation, petroleum, crude oil or any
fraction thereof, or other hydrocarbons), pollutants or
contaminants, to exposure to toxic, hazardous or other
controlled, prohibited or regulated substances which
violation could have a material adverse effect on the
business, prospects, profits, properties or financial
condition of the Company and its Restricted Subsidiaries,
taken as a whole. The Company does not know of any
liability or class of liability of the Company or any
Restricted Subsidiary under the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended
(42 U.S.C. Section 9601 et seq.), or the Resource
Conservation and Recovery Act of 1976, as amended (42 U.S.C.
Section 6901 et seq.).
B-5
48
SUBSIDIARIES OF THE COMPANY
1. RESTRICTED SUBSIDIARIES
Percentage of
Voting Stock Owned
Name of Jurisdiction of by Company and
Subsidiary Incorporation each other Subsidiary
---------- --------------- ---------------------
Angelica Realty Co. California 100%
Angelica Healthcare Services
Group, Inc. California 100%
Angelica International, Ltd. Canada 100%
Angelica Holdings Limited<F**> United Kingdom 100%
Angelica Healthcare Services
Group, Inc. New York 100%
Southern Service Company California 100%
Angelica Uniform Company
of Nevada Nevada 100%
Industrias Textiles El Curu Costa Rica 100%
Seven Hundred Rosedale
Redevelopment Corporation Missouri 100%
Retail operations of the Company include a chain of 264 (as of January 28,
1995) retail uniform specialty shops known as "Life Uniform & Shoe Shops,"
"Z & H Uniform," "Uniforms Unlimited," and "House of Uniforms." All shops
operating in a specific state form one company incorporated under the laws
of that state, except for 21 stores located in Pennsylvania, New Jersey and
Delaware which are part of a corporation incorporated under the laws of
Pennsylvania. All such corporations are wholly-owned subsidiaries of the
Company.
<FN>
<F**>Parent Company of Angelica International, Limited, an United Kingdom
corporation, all of whose voting securities are owned by Angelica Holdings
Limited.
All of the above subsidiaries are included in the financial statements filed
herewith.
2. SUBSIDIARIES (OTHER THAN RESTRICTED SUBSIDIARIES):
Percentage of
Voting Stock Owned
Name of Jurisdiction of by Company and
Subsidiary Incorporation each other Subsidiary
---------- --------------- ---------------------
None
ANNEX 1
(to Exhibit B)
49
DESCRIPTION OF SPECIAL COUNSEL'S CLOSING OPINION
The closing opinion of Chapman and Cutler, special counsel
to the Purchasers, called for by Sec. 4.1 of the Note Agreements,
shall be dated the Closing Date and addressed to the Purchasers,
shall be satisfactory in form and substance to the Purchasers and
shall be to the effect that:
1. The Company is a corporation, validly existing and
in good standing under the laws of the State of Missouri and
has the corporate power and the corporate authority to
execute and deliver the Note Agreements and to issue the
Notes.
2. The Note Agreements have been duly authorized by
all necessary corporate action on the part of the Company,
have been duly executed and delivered by the Company and
constitute the legal, valid and binding contracts of the
Company enforceable in accordance with their terms, subject
to bankruptcy, insolvency, fraudulent conveyance or similar
laws affecting creditors' rights generally, and general
principles of equity (regardless of whether the application
of such principles is considered in a proceeding in equity
or at law).
3. The Notes have been duly authorized by all
necessary corporate action on the part of the Company, have
been duly executed and delivered by the Company and
constitute the legal, valid and binding obligations of the
Company enforceable in accordance with their terms, subject
to bankruptcy, insolvency, fraudulent conveyance or similar
laws affecting creditors' rights generally, and general
principles of equity (regardless of whether the application
of such principles is considered in a proceeding in equity
or at law).
4. The issuance, sale and delivery of the Notes under
the circumstances contemplated by the Note Agreements does
not, under existing law, require the registration of the
Notes under the Securities Act of 1933, as amended, or the
qualification of an indenture under the Trust Indenture Act
of 1939, as amended.
The opinion of Chapman and Cutler shall also state that the
opinion of Jill Witter, Esq. is satisfactory in scope and form to
Chapman and Cutler and that, in their opinion, the Purchasers are
justified in relying thereon.
In rendering the opinion set forth in paragraph 1 above,
Chapman and Cutler may rely solely upon an examination of the
Restated Articles of Incorporation certified by, and a
certificate of good standing of the Company from, the Secretary
of State of the State of Missouri, the By-laws of the Company and
the general business corporation law of the State of Missouri.
The opinion of Chapman and Cutler is limited to the laws of the
State of Illinois, the general business corporation law of the
State of Missouri and the Federal laws of the United States.
With respect to matters of fact upon which such opinion is
based, Chapman and Cutler may rely on appropriate certificates of
public officials and officers of the Company.
EXHIBIT C
(to Note Agreement)
50
DESCRIPTION OF CLOSING OPINION OF COUNSEL TO THE COMPANY
The closing opinion of Jill Witter, Esq., General Counsel
for the Company, which is called for by Sec. 4.1 of the Note
Agreements, shall be dated the Closing Date and addressed to the
Purchasers, shall be satisfactory in scope and form to the
Purchasers and shall be to the effect that:
1. The Company is a corporation, duly incorporated,
validly existing and in good standing under the laws of the
State of Missouri, has the corporate power and the corporate
authority to execute and perform the Note Agreements and to
issue the Notes and has the full corporate power and the
corporate authority to conduct the activities in which it is
now engaged and is duly licensed or qualified and is in good
standing as a foreign corporation in each jurisdiction in
which the character of the properties owned or leased by it
or the nature of the business transacted by it makes such
licensing or qualification necessary.
2. Each Subsidiary is a corporation duly organized,
validly existing and in good standing under the laws of its
jurisdiction of incorporation and is duly licensed or
qualified and is in good standing in each jurisdiction in
which the character of the properties owned or leased by it
or the nature of the business transacted by it makes such
licensing or qualification necessary and all of the issued
and outstanding shares of capital stock of each such
Subsidiary have been duly issued, are fully paid and non-
assessable and are owned by the Company, by one or more
Subsidiaries, or by the Company and one or more
Subsidiaries.
3. Each Note Agreement has been duly authorized by
all necessary corporate action on the part of the Company,
has been duly executed and delivered by the Company and
constitutes the legal, valid and binding contract of the
Company enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent conveyance or similar
laws affecting creditors' rights generally, and general
principles of equity (regardless of whether the application
of such principles is considered in a proceeding in equity
or at law).
4. The Notes have been duly authorized by all
necessary corporate action on the part of the Company, have
been duly executed and delivered by the Company and
constitute the legal, valid and binding obligations of the
Company enforceable in accordance with their terms, subject
to bankruptcy, insolvency, fraudulent conveyance or similar
laws affecting creditors' rights generally, and general
principles of equity (regardless of whether the application
of such principles is considered in a proceeding in equity
or at law).
5. No approval, consent or withholding of objection
on the part of, or filing, registration or qualification
with, any governmental body, Federal, state or local, is
necessary in connection with the execution, delivery and
performance of the Note Agreements or the Notes.
EXHIBIT D
(to Note Agreement)
51
6. The issuance and sale of the Notes and the
execution, delivery and performance by the Company of the
Note Agreements do 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 upon any of
the property of the Company pursuant to the provisions of
the Restated Articles of Incorporation or By-laws of the
Company or any agreement or other instrument known to such
counsel to which the Company is a party or by which the
Company may be bound.
7. The issuance, sale and delivery of the Notes under
the circumstances contemplated by the Note Agreements does
not, under existing law, require the registration of the
Notes under the Securities Act of 1933, as amended, or the
qualification of an indenture under the Trust Indenture Act
of 1939, as amended.
The opinion of Jill Witter, Esq. 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.
D-2