Exhibit 10.1
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CURTISS-WRIGHT CORPORATION
CURTISS-WRIGHT CONTROLS, INC.
METAL IMPROVEMENT COMPANY, INC.
CURTISS-WRIGHT FLOW CONTROL CORPORATION
CURTISS-WRIGHT FLOW CONTROL SERVICE CORPORATION
$200,000,000
5.13% Series A Senior Guaranteed Notes due September 25, 2010
5.74% Series B Senior Guaranteed Notes due September 25, 2013
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NOTE PURCHASE AGREEMENT
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Dated as of September 25, 2003
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TABLE OF CONTENTS
Section Page
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1. AUTHORIZATION OF NOTES..............................................................1
2. SALE AND PURCHASE OF NOTES..........................................................2
3. CLOSING.............................................................................2
4. CONDITIONS TO CLOSING...............................................................3
4.1. REPRESENTATIONS AND WARRANTIES...................................................3
4.2. PERFORMANCE; NO DEFAULT..........................................................3
4.3. COMPLIANCE CERTIFICATES..........................................................3
4.4. OPINIONS OF COUNSEL..............................................................4
4.5. PURCHASE PERMITTED BY APPLICABLE LAW, ETC........................................4
4.6. SALE OF OTHER NOTES..............................................................4
4.7. PAYMENT OF SPECIAL COUNSEL FEES..................................................5
4.8. PRIVATE PLACEMENT NUMBER.........................................................5
4.9. CHANGES IN CORPORATE STRUCTURE...................................................5
4.10. SUBSIDIARY GUARANTEE..........................................................5
4.11. OFFEREE LETTERS...............................................................5
4.12. PROCEEDINGS AND DOCUMENTS.....................................................5
5. REPRESENTATIONS AND WARRANTIES OF THE ISSUERS.......................................6
5.1. ORGANIZATION; POWER AND AUTHORITY................................................6
5.2. AUTHORIZATION, ETC...............................................................6
5.3. DISCLOSURE.......................................................................6
5.4. ORGANIZATION AND OWNERSHIP OF SHARES OF SUBSIDIARIES.............................7
5.5. FINANCIAL STATEMENTS.............................................................8
5.6. COMPLIANCE WITH LAWS, OTHER INSTRUMENTS, ETC.....................................8
5.7. GOVERNMENTAL AUTHORIZATIONS, ETC.................................................8
5.8. LITIGATION; OBSERVANCE OF STATUTES AND ORDERS....................................9
5.9. TAXES............................................................................9
5.10. TITLE TO PROPERTY; LEASES.....................................................9
5.11. LICENSES, PERMITS, ETC.......................................................10
5.12. COMPLIANCE WITH ERISA........................................................10
5.13. PRIVATE OFFERING BY THE ISSUERS..............................................11
5.14. USE OF PROCEEDS; MARGIN REGULATIONS..........................................12
5.15. EXISTING DEBT................................................................12
5.16. FOREIGN ASSETS CONTROL REGULATIONS, ETC......................................12
5.17. STATUS UNDER CERTAIN STATUTES................................................13
5.18 PARI PASSU RANKING...........................................................13
6. REPRESENTATIONS OF THE PURCHASERS..................................................13
6.1. PURCHASE FOR INVESTMENT.........................................................13
6.2. SOURCE OF FUNDS.................................................................14
7. INFORMATION AS TO COMPANY..........................................................16
7.1. FINANCIAL AND BUSINESS INFORMATION..............................................16
7.2. OFFICER'S CERTIFICATE...........................................................18
7.3. INSPECTION......................................................................19
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8. PREPAYMENT OF THE NOTES............................................................20
8.1. REQUIRED PREPAYMENTS............................................................20
8.2. OPTIONAL PREPAYMENTS WITH MAKE-WHOLE AMOUNT.....................................20
8.3. PREPAYMENT OF NOTES UPON CHANGE IN CONTROL......................................20
8.4. OFFER TO PREPAY UPON THE SALE OF CERTAIN ASSETS.................................22
8.5. ALLOCATION OF PARTIAL PREPAYMENTS...............................................23
8.6. MATURITY; SURRENDER, ETC........................................................24
8.7. PURCHASE OF NOTES...............................................................24
8.8. MAKE-WHOLE AMOUNT; MODIFIED MAKE-WHOLE AMOUNT...................................24
9. AFFIRMATIVE COVENANTS..............................................................26
9.1. COMPLIANCE WITH LAW.............................................................26
9.2. INSURANCE.......................................................................27
9.3. MAINTENANCE OF PROPERTIES.......................................................27
9.4. PAYMENT OF TAXES................................................................27
9.5. CORPORATE EXISTENCE, ETC........................................................28
9.6. ADDITIONAL SUBSIDIARY GUARANTORS................................................28
10. NEGATIVE COVENANTS.................................................................28
10.1. TRANSACTIONS WITH AFFILIATES.................................................28
10.2. MERGERS AND CONSOLIDATIONS...................................................29
10.3. SALE OF ASSETS...............................................................30
10.4. LIMITATION ON CONSOLIDATED DEBT..............................................30
10.5. LIMITATION ON PRIORITY DEBT..................................................30
10.6. MINIMUM CONSOLIDATED NET WORTH...............................................30
10.7. LIMITATION ON LIENS..........................................................31
10.8. NATURE OF BUSINESS...........................................................33
10.9. MATERIAL SUBSIDIARIES........................................................33
11. EVENTS OF DEFAULT..................................................................33
12. REMEDIES ON DEFAULT, ETC...........................................................36
12.1. ACCELERATION.................................................................36
12.2. OTHER REMEDIES...............................................................37
12.3. RESCISSION...................................................................37
12.4. NO WAIVERS OR ELECTION OF REMEDIES, EXPENSES, ETC............................37
13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES......................................38
13.1. REGISTRATION OF NOTES........................................................38
13.2. TRANSFER AND EXCHANGE OF NOTES...............................................38
13.3. REPLACEMENT OF NOTES.........................................................39
14. PAYMENTS ON NOTES..................................................................39
14.1. PLACE OF PAYMENT.............................................................39
14.2. HOME OFFICE PAYMENT..........................................................39
15. EXPENSES, ETC......................................................................40
15.1. TRANSACTION EXPENSES.........................................................40
15.2. SURVIVAL.....................................................................41
16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT.......................41
17. AMENDMENT AND WAIVER...............................................................41
17.1. REQUIREMENTS.................................................................41
17.2. SOLICITATION OF HOLDERS OF NOTES.............................................42
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17.3. BINDING EFFECT, ETC..........................................................42
17.4. NOTES HELD BY THE ISSUERS, ETC...............................................43
18. NOTICES............................................................................43
19. REPRODUCTION OF DOCUMENTS..........................................................43
20. CONFIDENTIAL INFORMATION...........................................................44
21. SUBSTITUTION OF PURCHASER..........................................................45
22. MISCELLANEOUS......................................................................46
22.1. SUCCESSORS AND ASSIGNS.......................................................46
22.2. PAYMENTS DUE ON NON-BUSINESS DAYS............................................46
22.3. SEVERABILITY.................................................................46
22.4. CONSTRUCTION.................................................................46
22.5. COUNTERPARTS.................................................................46
22.6. GOVERNING LAW................................................................47
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SCHEDULE A -- Information Relating to Purchasers
SCHEDULE B -- Defined Terms
SCHEDULE 3 -- Payment Instructions at Closing
SCHEDULE 4.9 -- Changes in Corporate Structure
SCHEDULE 5.3 -- Disclosure Materials
SCHEDULE 5.4 -- Subsidiaries of the Company; Ownership of Subsidiary Stock
SCHEDULE 5.5 -- Financial Statements
SCHEDULE 5.8 -- Certain Litigation
SCHEDULE 5.10 -- Title to Property
SCHEDULE 5.11 -- Licenses, Permits, Etc.
SCHEDULE 5.12 -- ERISA Affiliates, Employee Benefit Plans
SCHEDULE 5.15 -- Existing Debt
EXHIBIT 1(a) -- Form of 5.13% Series A Senior Guaranteed Note due
September 25, 2010
EXHIBIT 1(b) -- Form of 5.74% Series B Senior Guaranteed Note due
September 25, 2013
EXHIBIT 4.4(a) -- Form of Opinion of Special Counsel for the Issuers
and the Subsidiary Guarantors
EXHIBIT 4.4(b) -- Form of Opinion of Associate General Counsel to the
Issuers and Subsidiary Guarantors
EXHIBIT 4.4(c) -- Form of Opinion of Special Counsel for the Purchasers
EXHIBIT 4.10 -- Form of Subsidiary Guarantee
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CURTISS-WRIGHT CORPORATION
CURTISS-WRIGHT CONTROLS, INC.
METAL IMPROVEMENT COMPANY, INC.
CURTISS-WRIGHT FLOW CONTROL CORPORATION
CURTISS-WRIGHT FLOW CONTROL SERVICE CORPORATION
4 Becker Farm Road
Roseland, New Jersey 07068
5.13% Series A Senior Guaranteed Notes due September 25, 2010
5.74% Series B Senior Guaranteed Notes due September 25, 2013
September 25, 2003
To Each Of The Purchasers Listed In
The Attached Schedule A (the "Purchasers"):
Ladies and Gentlemen:
CURTISS-WRIGHT CORPORATION, a Delaware corporation (together with its
successors and assigns, the "Company"), CURTISS-WRIGHT CONTROLS, INC., a
Delaware corporation (together with its successors and assigns, "C-W Controls"),
METAL IMPROVEMENT COMPANY, INC., a Delaware corporation (together with its
successors and assigns, "Metal"), CURTISS-WRIGHT FLOW CONTROL CORPORATION, a New
York corporation (together with its successors and assigns, "C-W Flow") and
CURTISS-WRIGHT FLOW CONTROL SERVICE CORPORATION, a Delaware corporation
(together with its successors and assigns, "C-W Flow Control Service" and
together with the Company, C-W Controls, Metal and C-W Flow, individually, an
"Issuer" and collectively, the "Issuers"), hereby jointly and severally agree
with the Purchasers as follows:
1. AUTHORIZATION OF NOTES.
The Issuers will authorize the joint and several issuance and sale of:
(a) $75,000,000 aggregate principal amount of their joint and
several 5.13% Series A Senior Guaranteed Notes due September 25, 2010
(including any amendments, restatements or modifications from time to
time, the "Series A Notes", such term to include any such notes issued
in substitution therefor pursuant to Section 13 of this Agreement);
and
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(b) $125,000,000 aggregate principal amount of their joint and
several 5.74% Series B Senior Guaranteed Notes due September 25, 2013
(including any amendments, restatements or modifications from time to
time, the "Series B Notes", such term to include any such notes issued
in substitution therefor pursuant to Section 13 of this Agreement.
The Series A Notes and the Series B Notes are sometimes referred to
herein as the "Notes." The Series A Notes and the Series B Notes shall be
substantially in the respective forms set out in Exhibits 1(a) and Exhibit 1(b),
in each case with such changes thereto, if any, as may be approved by the
Purchasers and the Issuers. Certain capitalized terms used in this Agreement are
defined in Schedule B; references to a "Schedule" or an "Exhibit" are, unless
otherwise specified, to a Schedule or an Exhibit attached to this Agreement.
2. SALE AND PURCHASE OF NOTES.
Subject to the terms and conditions of this Agreement, the Issuers will
issue and sell to each Purchaser and each Purchaser will purchase from the
Issuers, at the Closing provided for in Section 3, Notes of the Series and in
the principal amount specified opposite such Purchaser's name in Schedule A at
the purchase price of 100% of the principal amount thereof. The Purchasers'
obligations hereunder are several and not joint obligations and no Purchaser
shall have any liability to any Person for the performance or non-performance by
any other Purchaser hereunder.
3. CLOSING.
The sale and purchase of the Notes to be purchased by each of the
Purchasers shall occur at the offices of Bingham McCutchen LLP, 399 Park Avenue,
New York, NY 10022, at 10:00 a.m., local time, at a closing (the "Closing") on
September 25, 2003 or on such other Business Day thereafter on or prior to
October 2, 2003 as may be agreed upon by the Issuers and the Purchasers. At the
Closing the Issuers will deliver to each Purchaser the Notes of the Series to be
purchased by such Purchaser in the form of a single Note for such series (or
such greater number of Notes of the applicable Series in denominations of at
least $250,000 as such Purchaser may request) dated the date of the Closing and
registered in such Purchaser's name (or in the name of its nominee), against
delivery by such Purchaser to the Issuers or their order of immediately
available funds in the amount of the purchase price therefor as directed by the
Issuers in Schedule 3. If at the Closing the Issuers shall fail to tender such
Notes to any Purchaser as provided above in this Section 3, or any of the
conditions specified in Section 4 shall not have been fulfilled to each
Purchaser's satisfaction, such Purchaser shall, at its election, be relieved of
all further obligations under this Agreement, without thereby waiving any rights
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each such Purchaser may have by reason of such failure or such nonfulfillment.
4. CONDITIONS TO CLOSING.
Each Purchaser's obligation to purchase and pay for the Notes to be
sold to it at the Closing is subject to the fulfillment to each such Purchaser's
satisfaction, prior to or at the Closing, of the following conditions:
4.1. Representations and Warranties
The representations and warranties of the Issuers in this Agreement
shall be correct when made and at the time of the Closing.
4.2. Performance; No Default.
Each Obligor shall have performed and complied with all agreements and
conditions contained in this Agreement required to be performed or complied with
by it prior to or at the Closing and after giving effect to the issue and sale
of the Notes (and the application of the proceeds thereof as contemplated by
Section 5.14) no Default or Event of Default shall have occurred and be
continuing.
4.3. Compliance Certificates.
(a) Issuers' Officer's Certificate. Each of the Issuers shall
have delivered to each Purchaser an Officer's Certificate, dated the
date of the Closing, certifying that the conditions specified in
Sections 4.1, 4.2 and 4.9 have been fulfilled.
(b) Subsidiary Guarantors' Officer's Certificate. Each of the
Subsidiary Guarantors shall have delivered to each Purchaser an
Officer's Certificate, dated the date of the Closing, certifying that
(i) the representations and warranties contained herein and in the
Subsidiary Guarantee are true on and as of the Closing with the same
effect as if made on that date and (ii) that such Subsidiary Guarantor
has performed and complied with all agreements and conditions
contained in this Agreement and in the other Financing Documents to
which it is a party required to be performed or complied with by such
Subsidiary Guarantor prior to or at the Closing.
(c) Issuer's Secretary's Certificate. Each of the Issuers shall
have delivered to each Purchaser a certificate certifying as to the
resolutions attached thereto and other corporate proceedings relating
to the authorization, execution and delivery of the Notes and this
Agreement.
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(d) Subsidiary Guarantors' Secretary's Certificate. Each of the
Subsidiary Guarantors shall have delivered to each Purchaser a
certificate certifying as to the resolutions attached thereto and
other corporate proceedings relating to the authorizations, execution
and delivery of the Subsidiary Guarantee by such Subsidiary Guarantor.
4.4. Opinions of Counsel.
Each Purchaser shall have received opinions in form and substance
satisfactory to it, dated the date of the Closing (a) from Satterlee Stephens
Burke & Burke LLP, special counsel for the Issuers and Subsidiary Guarantors,
substantially in the form set forth in Exhibit 4.4(a) and covering such other
matters incident to such transactions as the Purchasers or their counsel may
reasonably request (and the Issuers hereby instruct such counsel to deliver such
opinion to each Purchaser), (b) from Associate General Counsel for the Issuers
and Subsidiary Guarantors substantially in the form set forth in Exhibit 4.4(b)
and covering such other matters incident to such transactions as the Purchasers
or their counsel may reasonably request and (c) from Bingham McCutchen LLP, the
Purchasers' special counsel in connection with such transactions, substantially
in the form set forth in Exhibit 4.4(c) and covering such other matters incident
to such transactions as the Purchasers may reasonably request.
4.5. Purchase Permitted By Applicable Law, etc.
On the date of the Closing each Purchaser's purchase of Notes shall (i)
be permitted by the laws and regulations of each jurisdiction to which it is
subject, without recourse to provisions (such as Section 1405(a)(8) of the New
York Insurance Law) permitting limited investments by insurance companies
without restriction as to the character of the particular investment, (ii) not
violate any applicable law or regulation (including, without limitation,
Regulation T, U or X of the Board of Governors of the Federal Reserve System)
and (iii) not subject such Purchaser to any tax, penalty or liability under or
pursuant to any applicable law or regulation, which law or regulation was not in
effect on the date hereof. If so requested, each Purchaser shall have received
Officers' Certificates from each Issuer and each Subsidiary Guarantor certifying
as to such matters of fact as it may reasonably specify to enable such Purchaser
to determine whether such purchase is so permitted.
4.6. Sale of Other Notes.
Contemporaneously with the Closing, the Issuers shall sell to each
Purchaser and each Purchaser shall purchase the Notes to be purchased by it at
the Closing as specified in Schedule A.
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4.7. Payment of Special Counsel Fees.
Without limiting the provisions of Section 15.1, the Issuers shall have
paid on or before the Closing the reasonable fees, charges and disbursements of
the Purchasers' special counsel referred to in Section 4.4(c) to the extent
reflected in a statement of such counsel rendered to the Issuers at least one
Business Day prior to the Closing.
4.8. Private Placement Number.
A Private Placement Number issued by Standard & Poor's CUSIP Service
Bureau (in cooperation with the Securities Valuation Office of the National
Association of Insurance Commissioners) shall have been obtained for each Series
of Notes.
4.9. Changes in Corporate Structure.
Except as specified in Schedule 4.9, no Obligor shall have changed its
jurisdiction of incorporation or been a party to any merger or consolidation and
shall not have succeeded to all or any substantial part of the liabilities of
any other entity, at any time following the date of the most recent financial
statements referred to in Schedule 5.5.
4.10. Subsidiary Guarantee.
Each Subsidiary Guarantor shall have executed and delivered to the
Purchasers a guarantee agreement (as may be amended, restated or modified from
time to time, the "Subsidiary Guarantee"), in the form of Exhibit 4.10.
4.11. Offeree Letters.
Each of J.P. Morgan Securities Inc. and SunTrust Capital Markets, Inc.
shall have delivered to each Issuer, their counsel, each of the Purchasers and
the Purchasers' special counsel an offeree letter, in form and substance
satisfactory to each Purchaser and the Issuers, confirming the manner of the
offering of the Notes by J.P. Morgan Securities Inc. and SunTrust Capital
Markets, Inc.
4.12. Proceedings and Documents.
All corporate and other proceedings in connection with the
transactions contemplated by this Agreement and all documents and instruments
incident to such transactions shall be satisfactory to each Purchaser and its
special counsel, and each Purchaser and its special counsel shall have received
all such counterpart originals or certified or other copies of such documents as
such Purchaser or its counsel may reasonably request.
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5. REPRESENTATIONS AND WARRANTIES OF THE ISSUERS
Each of the Issuers jointly and severally represents and warrants to
each Purchaser, that:
5.1. Organization; Power and Authority.
The Company is a corporation duly organized, validly existing and in
good standing under the laws of Delaware, and is duly qualified as a foreign
corporation and is in good standing in each jurisdiction in which such
qualification is required by law, other than those jurisdictions as to which the
failure to be so qualified or in good standing would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. The Company
has the corporate power and authority to own or hold under lease the properties
it purports to own or hold under lease, to transact the business it transacts
and proposes to transact, to execute and deliver the Financing Documents to
which it is a party and to perform the provisions hereof and thereof.
5.2. Authorization, etc.
(a) This Agreement and the Notes have been duly authorized by all
necessary corporate action on the part of each Issuer, and this
Agreement constitutes, and upon execution and delivery thereof each
Note will constitute, a legal, valid and binding obligation of each
Issuer enforceable against such Issuer in accordance with its terms,
except as such enforceability may be limited by (i) applicable
bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally and (ii)
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
(b) The Subsidiary Guarantee has been duly authorized by all
necessary corporate action on the part of each Subsidiary Guarantor,
and the Subsidiary Guarantee constitutes a legal, valid and binding
obligation of each Subsidiary Guarantor enforceable against each
Subsidiary Guarantor in accordance with its terms, except as such
enforceability may be limited by (i) applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
the enforcement of creditors' rights generally and (ii) general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
5.3. Disclosure.
The Company, through its agents, J.P. Morgan Securities Inc. and
SunTrust Capital Markets, Inc., has delivered to each Purchaser a copy of a
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Private Placement Memorandum, dated July 2003 (the "Memorandum"), relating to
the transactions contemplated hereby. Except as disclosed in Schedule 5.3, this
Agreement, the Memorandum, the documents, certificates or other writings
identified in Schedule 5.3 and the financial statements listed in Schedule 5.5,
taken as a whole, do not contain any untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein in light of
the circumstances under which they were made not misleading. Except as disclosed
in the Memorandum or as expressly described in Schedule 5.3, or in one of the
documents, certificates or other writings identified therein, or in the
financial statements listed in Schedule 5.5, since December 31, 2002, there has
been no change in the financial condition, operations, business or properties of
the Company or any of its Subsidiaries except changes that individually or in
the aggregate would not reasonably be expected to have a Material Adverse
Effect.
5.4. Organization and Ownership of Shares of Subsidiaries.
(a) Schedule 5.4 is (except as noted therein) a complete and
correct list of the Company's Subsidiaries, showing, as to each
Subsidiary, the correct name thereof, the jurisdiction of its
organization, and the percentage of shares of each class of its capital
stock or similar equity interests outstanding owned by the Company and
each other Subsidiary.
(b) All of the outstanding shares of capital stock or similar
equity interests of each Subsidiary shown in Schedule 5.4 as being
owned by the Company and its Subsidiaries have been validly issued, are
fully paid and nonassessable and are owned by the Company or another
Subsidiary free and clear of any Lien (except as otherwise disclosed in
Schedule 5.4).
(c) Each Subsidiary identified in Schedule 5.4 is a
corporation or other legal entity duly organized, validly existing and
in good standing under the laws of its jurisdiction of organization,
and is duly qualified as a foreign corporation or other legal entity
and is in good standing in each jurisdiction in which such
qualification is required by law, other than those jurisdictions as to
which the failure to be so qualified or in good standing would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect. Each such Subsidiary has the corporate or
other power and authority to own or hold under lease the properties it
purports to own or hold under lease, to transact the business it
transacts and proposes to transact, and to execute and deliver the
Financing Documents to which it is a party, and to perform the
provisions hereof and thereof.
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(d) No Subsidiary is a party or otherwise subject to any legal
restriction or any agreement (other than this Agreement, the agreements
listed on Schedule 5.4 and customary limitations imposed by corporate
law statutes) restricting the ability of such Subsidiary to pay
dividends out of profits or make any other similar distributions of
profits to any Obligor or any of its Subsidiaries that owns outstanding
shares of capital stock or similar equity interests of such Subsidiary.
5.5. Financial Statements.
The Company has delivered to each Purchaser copies of the financial
statements of the Company and its Subsidiaries listed on Schedule 5.5. All of
said financial statements (including in each case the related schedules and
notes) fairly present in all material respects the consolidated financial
position of the Company and its Subsidiaries as of the respective dates
specified in such Schedule and the consolidated results of their operations and
cash flows for the respective periods so specified and have been prepared in
accordance with GAAP consistently applied throughout the periods involved except
as set forth in the notes thereto (subject, in the case of any interim financial
statements, to normal year-end adjustments).
5.6. Compliance with Laws, Other Instruments, etc.
The execution, delivery and performance by each of the Issuers and each
Subsidiary Guarantor, as the case may be, of this Agreement, the Notes and the
Subsidiary Guarantee will not (a) contravene, result in any breach of, or
constitute a default under, or result in the creation of any Lien in respect of
any property of the Company or any Subsidiary under, any indenture, mortgage,
deed of trust, loan, purchase or credit agreement, lease, corporate charter or
by-laws, or any other Material agreement or instrument to which the Company or
any Subsidiary is bound or by which the Company or any Subsidiary or any of
their respective properties may be bound or affected, (b) conflict with or
result in a breach of any of the terms, conditions or provisions of any order,
judgment, decree, or ruling of any court, arbitrator or Governmental Authority
applicable to the Company or any Subsidiary or (c) violate any provision of any
statute or other rule or regulation of any Governmental Authority applicable to
the Company or any Subsidiary.
5.7. Governmental Authorizations, etc.
No consent, approval or authorization of, or registration, filing or
declaration with, any Governmental Authority is required in connection with the
execution, delivery or performance by (a) the Issuers of this Agreement or the
Notes and (b) each Subsidiary Guarantor of the Subsidiary Guarantee, except that
the Issuers may, at their option, file a notice on Form D with the Securities
and Exchange Commission.
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5.8. Litigation; Observance of Statutes and Orders.
(a) Except as disclosed in Schedule 5.8, there are no actions,
suits or proceedings pending or, to the knowledge of the Company,
threatened against or affecting the Company or any Subsidiary or any
property of the Company or any Subsidiary in any court or before any
arbitrator of any kind or before or by any Governmental Authority
that, individually or in the aggregate, would reasonably be expected
to have a Material Adverse Effect.
(b) Neither the Company nor any Subsidiary is in default under
any order, judgment, decree or ruling of any court, arbitrator or
Governmental Authority or is in violation of any applicable law,
ordinance, rule or regulation (including without limitation
Environmental Laws) of any Governmental Authority, which default or
violation, individually or in the aggregate, would reasonably be
expected to have a Material Adverse Effect.
5.9. Taxes.
The Issuers and their Subsidiaries have filed all income tax returns
that are required to have been filed in any jurisdiction, and have paid all
taxes shown to be due and payable on such returns and all other taxes and
assessments payable by them, to the extent such taxes and assessments have
become due and payable and before they have become delinquent, except for any
taxes and assessments (a) the amount of which is not individually or in the
aggregate Material or (b) the amount, applicability or validity of which is
currently being contested in good faith by appropriate proceedings and with
respect to which the affected Issuer or Subsidiary, as the case may be, has
established adequate reserves in accordance with GAAP. The Federal income tax
liabilities of the Issuers and their Subsidiaries which have filed a Federal
income tax return or were included in a consolidated Federal income tax return
have been determined by the Internal Revenue Service and paid for all fiscal
years up to and including the fiscal year ended December 31, 1999.
5.10. Title to Property; Leases.
Except as disclosed on Schedule 5.10, each of the Issuers and their
Subsidiaries have good and sufficient title to their respective Material
properties, including all such properties reflected in the most recent audited
balance sheet referred to in Section 5.5 or purported to have been acquired by
any of the Issuers or any Subsidiary after said date (except as sold or
otherwise disposed of in the ordinary course of business), in each case free and
clear of Liens prohibited by this Agreement, except for those defects in title
and Liens that, individually or in the aggregate, would not have a Material
Adverse Effect.
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All Material leases are valid and subsisting and are in full force and effect in
all material respects.
5.11. Licenses, Permits, etc.
Except as disclosed in Schedule 5.11, each of the Issuers and their
Subsidiaries own or possess all licenses, permits, franchises, authorizations,
patents, copyrights, service marks, trademarks and trade names, or rights
thereto, that are Material, and, to the knowledge of the Issuers, none of such
licenses, permits, franchises, authorizations, patents, copyrights, service
marks, trademarks and trade names, or rights with respect thereto conflict with
the rights of others, except for those conflicts that, individually or in the
aggregate, would not have a Material Adverse Effect.
5.12. Compliance with ERISA.
(a) Each Issuer and each ERISA Affiliate have operated and
administered each Plan in compliance with all applicable laws except
for such instances of noncompliance as have not resulted in and could
not reasonably be expected to result in a Material Adverse Effect.
None of the Issuers nor any ERISA Affiliate has incurred any liability
pursuant to Title I or IV of ERISA or the penalty or excise tax
provisions of the Code relating to employee benefit plans (as defined
in section 3 of ERISA), and no event, transaction or condition has
occurred or exists that would reasonably be expected to result in the
incurrence of any such liability by any of the Issuers or any ERISA
Affiliate, or in the imposition of any Lien on any of the rights,
properties or assets of any of the Issuers or any ERISA Affiliate, in
either case pursuant to Title I or IV of ERISA or to such penalty or
excise tax provisions or to section 401(a)(29) or section 412 of the
Code, other than such liabilities or Liens as would not be
individually or in the aggregate Material.
(b) The present value of the aggregate benefit liabilities under
each of the Plans (other than Multiemployer Plans), determined as of
the end of such Plan's most recently ended plan year on the basis of
the actuarial assumptions specified for funding purposes in such
Plan's most recent actuarial valuation report, did not exceed the
aggregate current value of the assets of such Plan allocable to such
benefit liabilities by more than $40,000,000 in the aggregate. The
term "benefit liabilities" has the meaning specified in section 4001
of ERISA and the terms "current value" and "present value" have the
meaning specified in section 3 of ERISA.
(c) None of the Issuers or their ERISA Affiliates has incurred
withdrawal liabilities (and none is subject to contingent withdrawal
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liabilities) under section 4201 or 4204 of ERISA in respect of
Multiemployer Plans that individually or in the aggregate are
Material.
(d) The expected postretirement benefit obligation (determined as
of the last day of the Company's most recently ended fiscal year in
accordance with Financial Accounting Standards Board Statement No.
106, without regard to liabilities attributable to continuation
coverage mandated by section 4980B of the Code) of the Company and its
Subsidiaries is not Material.
(e) The execution and delivery of this Agreement and the issuance
and sale of the Notes hereunder will not involve any transaction that
is subject to the prohibitions of section 406 of ERISA or in
connection with which a tax could be imposed pursuant to section
4975(c)(1)(A)-(D) of the Code. The representation by the Issuers in
the first sentence of this Section 5.12(e) is made in reliance upon
and subject to the accuracy of the Purchasers' representation in
Section 6.2 as to the sources of the funds to be used to pay the
purchase price of the Notes to be purchased by such Purchaser.
(f) Schedule 5.12 sets forth all ERISA Affiliates and all
"employee benefit plans" maintained by the Issuers (or any "affiliate"
thereof) or in respect of which the Notes could constitute an
"employer security" ("employee benefit plan" has the meaning specified
in section 3 of ERISA, "affiliate" has the meaning specified in
section 407(d) of ERISA and section V of the Department of Labor
Prohibited Transaction Exemption 95-60 (60 FR 35925, July 12, 1995)
and "employer security" has the meaning specified in section 407(d) of
ERISA).
5.13. Private Offering by the Issuers.
None of the Issuers nor anyone acting on behalf of any of them has
offered the Notes or any similar securities for sale to, or solicited any offer
to buy any of the same from, or otherwise approached or negotiated in respect
thereof with, any Person other than the Purchasers and not more than 55 other
Institutional Investors (as defined in clause (c) of the definition of such
term), each of which has been offered the Notes at a private sale for
investment. None of the Issuers nor anyone acting on behalf of any of them has
taken, or will take, any action that would subject the issuance or sale of the
Notes to the registration requirements of Section 5 of the Securities Act. The
representations and warranties of the Issuers in this Section 5.13 are made in
reliance upon and subject to the accuracy and completeness of the Purchasers'
representations and warranties set forth in Section 6.1 hereof.
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5.14. Use of Proceeds; Margin Regulations.
The Issuers will apply the proceeds of the sale of the Notes for
general corporate purposes of the Issuers and their Subsidiaries, including
repaying existing indebtedness of the Issuers and their Subsidiaries. No part of
the proceeds from the sale of the Notes hereunder will be used, directly or
indirectly, for the purpose of buying or carrying any margin stock within the
meaning of Regulation U of the Board of Governors of the Federal Reserve System
(12 CFR 221), or for the purpose of buying or carrying or trading in any
securities under such circumstances as to involve any Issuer in a violation of
Regulation X of said Board (12 CFR 224) or to involve any broker or dealer in a
violation of Regulation T of said Board (12 CFR 220). Margin stock does not
constitute more than 1% of the value of the consolidated assets of the Issuers
and their Subsidiaries and the Issuers do not have any present intention that
margin stock will constitute more than 1% of the value of such assets. As used
in this Section, the terms "margin stock" and "purpose of buying or carrying"
shall have the meanings assigned to them in said Regulation U.
5.15. Existing Debt.
Except as described therein, Schedule 5.15 sets forth a complete and
correct list of each issue of Debt of the Issuers and their Subsidiaries the
outstanding principal amount of which exceeds $1,000,000 as of August 25,
2003,since which date there has been no Material change in the amounts, interest
rates, sinking funds, installment payments or maturities of such Debt of the
Issuers or their Subsidiaries. The aggregate amount of all outstanding Debt of
the Issuers and their Subsidiaries not set forth in Schedule 5.15 does not
exceed $10,000,000. None of the Issuers nor any Subsidiary is in default and no
waiver of default is currently in effect, in the payment of any principal or
interest on any Debt of such Issuer or such Subsidiary and no event or condition
exists with respect to any Debt of any such Issuer or such Subsidiary the
outstanding principal amount of which exceeds $1,000,000 that would permit (or
that with notice or the lapse of time, or both, would permit) one or more
Persons to cause such Debt to become due and payable before its stated maturity
or before its regularly scheduled dates of payment.
5.16. Foreign Assets Control Regulations, etc.
Neither the sale of the Notes by the Issuers hereunder nor their use of
the proceeds thereof will violate (a) the Trading with the Enemy Act, as
amended, or (b) any of the foreign assets control regulations of the United
States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or any
enabling legislation or executive order relating thereto. Without limiting the
foregoing, none of the Issuers nor any Subsidiary (i) is or will become a Person
blocked described by Section 1 of Executive Order 13224 of September
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24, 2001, Blocking Property and Prohibiting Transactions With Persons Who
Commit, Threaten to Commit, or Support Terrorism (31 CFR Part 595 et seq.) or
(ii) engages or will engage in any dealings or transactions, or is otherwise
associated, with any such Person.
5.17. Status under Certain Statutes.
No Issuer nor any Subsidiary is (a) subject to regulation under the
Investment Company Act of 1940, as amended, the Public Utility Holding Company
Act of 1935, as amended or the Federal Power Act, as amended or (b) in violation
of the USA Patriot Act.
5.18 Pari Passu Ranking.
The Obligors' obligations under the Financing Documents to which they
are a party will, upon issuance of the Notes, rank at least pari passu, without
preference or priority, with all of their respective other outstanding unsecured
and unsubordinated obligations, except for those obligations that are
mandatorily afforded priority by operation of law.
6. REPRESENTATIONS OF THE PURCHASERS.
6.1. Purchase for Investment.
Each Purchaser represents that it (i) is an "accredited investor" as
defined in Rule 501 (a)(1), (2), (3) or (7) of Regulation D under the Securities
Act; (ii) has received and reviewed the Memorandum and the Exhibits thereto;
(iii) has relied upon the Memorandum and the representations and warranties of
the Issuers set forth herein in making a decision to purchase the Notes and has
a full understanding and appreciation of the risks inherent in such an
investment, (iv) together with its attorneys, accountants and other
representatives and advisers, if any (x) has been given an opportunity to ask,
and has to the extent such Purchaser considered necessary, asked questions of,
and has received answers from, officers of the Issuers concerning the terms of
the offering of Notes and the affairs of the Issuers and their proposed
activities and (y) has been given or afforded access to all documents, records,
books and additional information which such Purchaser has requested regarding
such matters (provided that it is understood that no information obtained by any
Purchaser in any manner indicated in this clause (iv) in any way limits the
scope and substance of the representations and warranties made by the Issuers
set forth in this Agreement upon which each Purchaser may rely in full
regardless of any such information) and (v) is purchasing the Notes for its own
account or for one or more separate accounts maintained by such Purchaser or for
the account of one or more pension or trust funds over which such Purchaser has
investment discretion and not with a view to the distribution thereof (except to
the extent any distribution would be permitted under the Securities Act without
registration of the Notes thereunder), provided
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that the disposition of it or its property shall at all times be within its or
their control. Each Purchaser understands that the Notes have not been
registered under the Securities Act and may be resold only if registered
pursuant to the provisions of the Securities Act or if an exemption from
registration is available, except under circumstances where neither such
registration nor such an exemption is required by law, and that the Issuers are
not required to register the Notes.
6.2. Source of Funds.
Each Purchaser represents that at least one of the following statements
is an accurate representation as to each source of funds (a "Source") to be used
by such Purchaser to pay the purchase price of the Notes to be purchased by such
Purchaser hereunder:
(a) the Source is an "insurance company general account," as such
term is defined in the Department of Labor Prohibited Transaction Class
Exemption ("PTE") 95-60 (issued July 12, 1995), and there is no plan
with respect to which the aggregate amount of such general account's
reserves and liabilities for the contracts held by or on behalf of such
plan and all other plans maintained by the same employer (and
affiliates thereof as defined in section V(a)(1) of PTE 95-60) or by
the same employee organization (in each case determined in accordance
with PTE 95-60) exceeds 10% of the total of all reserves and
liabilities of such general account (determined in accordance with PTE
95-60, exclusive of separate account liabilities), plus any applicable
surplus as of the date of the Closing; or
(b) the Source is a separate account that is maintained solely in
connection with such Purchaser's fixed contractual obligations under
which the amounts payable, or credited, to any employee benefit plan
(or its related trust) that has any interest in such separate account
(or to any participant or beneficiary of such employee benefit plan
(including any annuitant)) are not affected in any manner by the
investment performance of the separate account; or
(c) the Source is either (i) an insurance company pooled separate
account, within the meaning of PTE 90-1 (issued January 29, 1990), or
(ii) a bank collective investment fund, within the meaning of the PTE
91-38 (issued July 12, 1991) and, except as disclosed by such Purchaser
to the Issuers in writing pursuant to this paragraph (c), no employee
benefit plan or group of plans maintained by the same employer or
employee organization beneficially owns more than 10% of all assets
allocated to such pooled separate account or collective investment
fund; or
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(d) the Source constitutes assets of an "investment fund" (within
the meaning of part V of the QPAM Exemption) managed by a "qualified
professional asset manager" or "QPAM" (within the meaning of part V of
the QPAM Exemption), no employee benefit plan's assets that are
included in such investment fund, when combined with the assets of all
other employee benefit plans established or maintained by the same
employer or by an affiliate (within the meaning of section V(c)(1) of
the QPAM Exemption) of such employer or by the same employee
organization and managed by such QPAM, exceed 20% of the total client
assets managed by such QPAM, the conditions of part I(c) and (g) of the
QPAM Exemption are satisfied, neither the QPAM nor a person controlling
or controlled by the QPAM (applying the definition of "control" in
section V(e) of the QPAM Exemption) owns a 5% or more interest any of
the Issuers and (i) the identity of such QPAM and (ii) the names of all
employee benefit plans whose assets are included in such investment
fund have been disclosed to such Issuer in writing pursuant to this
paragraph (d); or
(e) the Source constitutes assets of a "plan(s)" (within the
meaning of section IV of PTE 96-23 (the "INHAM Exemption")) managed by
an "in-house asset manager" or "INHAM" (within the meaning of part IV
of the INHAM exemption), the conditions of part I(a), (g) and (h) of
the INHAM Exemption are satisfied, neither the INHAM nor a person
controlling or controlled by the INHAM (applying the definition of
"control" in section IV(d) of the INHAM Exemption) owns a 5% or more
interest in any of the Issuers and (i) the identity of such INHAM and
(ii) the name(s) of the employee benefit plan(s) whose assets
constitute the Source have been disclosed to such Issuer in writing
pursuant to this paragraph (e); or
(f) the Source is a governmental plan; or
(g) the Source is one or more employee benefit plans, or a
separate account or trust fund comprised of one or more employee
benefit plans, each of which has been identified to the Issuers in
writing pursuant to this paragraph (g); or
(h) the Source does not include assets of any employee benefit
plan, other than a plan exempt from the coverage of ERISA.
If any Purchaser or any subsequent transferee of the Notes notifies any
of the Issuers in writing that such Purchaser or such transferee is relying on
any representation contained in paragraphs (c), (d), (e), or (g) above, such
Issuer shall deliver on the date of Closing and on the date of any applicable
transfer, a certificate, which shall either state that (i) it is neither a
"party in interest" (as defined in Title I, section 3(14) of ERISA) nor a
"disqualified person" (as defined
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in section 4975(e)(2) of the Code), with respect to any plan identified
pursuant to paragraphs (c), (e) or (g) above, or (ii) with respect to any plan
identified pursuant to paragraph (d) above, neither it nor any "affiliate" (as
defined in section V(c) of the QPAM Exemption) has at such time, and during the
immediately preceding one year, exercised the authority to appoint or terminate
said QPAM as manager of any plan identified in writing pursuant to paragraph (d)
above or to negotiate the terms of said QPAM's management agreement on behalf
of any such identified plan. As used in this Section 6.2, the terms "employee
benefit plan" and "separate account" shall have the respective meanings assigned
to such terms in section 3 of ERISA. Each of the representations of the
Purchasers made in this Section 6.2 are also for the benefit of the Subsidiary
Guarantors.
7. INFORMATION AS TO COMPANY.
7.1. Financial and Business Information.
The Company shall deliver to each holder of Notes that is an
Institutional Investor:
(a) Quarterly Statements - - within 60 days after the end of each
quarterly fiscal period in each fiscal year of the Company (other than
the last quarterly fiscal period of each such fiscal year), duplicate
copies of,
(i) a consolidated balance sheet of the Company and its
Subsidiaries as at the end of such quarter, and
(ii) consolidated statements of income, and cash flows of
the Company and its Subsidiaries, for such quarter and (in the
case of the second and third quarters) for the portion of the
fiscal year ending with such quarter,
setting forth in each case in comparative form the figures for the
corresponding periods in the previous fiscal year, all in reasonable
detail, prepared in accordance with GAAP applicable to quarterly
financial statements generally, and certified by a Senior Financial
Officer as fairly presenting (together with the footnotes thereto), in
all material respects, the consolidated financial position of the
companies being reported on and their consolidated results of
operations and cash flows, subject to changes resulting from year-end
adjustments, provided that delivery within the time period specified
above of copies of the Company's Quarterly Report on Form 10-Q prepared
in compliance with the requirements therefor and filed with the
Securities and Exchange Commission shall be deemed to satisfy the
requirements of this Section 7.1(a);
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(b) Annual Statements -- within 105 days after the end of each
fiscal year of the Company, duplicate copies of,
(i) a consolidated balance sheet of the Company and its
Subsidiaries, as at the end of such year, and
(ii) consolidated statements of income, changes in
shareholders' equity and cash flows of the Company and its
Subsidiaries, for such year,
setting forth in each case in comparative form the figures for the
previous fiscal year, all in reasonable detail, prepared in accordance
with GAAP, and accompanied by an opinion thereon of independent
certified public accountants of recognized national standing, which
opinion shall state that such financial statements (together with the
footnotes thereto) present fairly, in all material respects, the
consolidated financial position of the companies being reported upon
and their consolidated results of operations and cash flows and have
been prepared in conformity with GAAP, and that the examination of such
accountants in connection with such financial statements has been made
in accordance with generally accepted auditing standards, and that such
audit provides a reasonable basis for such opinion in the
circumstances, provided that the delivery within the time period
specified above of the Company's Annual Report on Form 10-K for such
fiscal year prepared in accordance with the requirements therefor and
filed with the Securities and Exchange Commission shall be deemed to
satisfy the requirements of this Section 7.1(b);
(c) SEC and Other Reports -- promptly upon their becoming
available, one copy of (i) each financial statement, report (including
without limitation, the Company's annual report to shareholders, if
any, prepared pursuant to Rule 14a-3 under the Exchange Act) notice or
proxy statement sent by the Company or any Subsidiary to public
securities holders generally, and (ii) each regular or periodic report,
each registration statement that shall have become effective (without
exhibits except as expressly requested by such holder), and each final
prospectus and all amendments thereto filed by the Company or any
Subsidiary with the Securities and Exchange Commission; provided that
to the extent information in paragraph (a) through (c) is filed with
the Securities and Exchange Commission, in electronic form, the Company
will promptly provide the information electronically to the holders of
the Notes at such time;
(d) Notice of Default or Event of Default -- promptly, and in any
event within five Business Days after a Responsible Officer having
knowledge of the existence of any Default or Event of Default, a
written
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notice specifying the nature and period of existence thereof and what
action an Issuer or Subsidiary Guarantor is taking or proposes to take
with respect thereto;
(e) ERISA Matters -- promptly, and in any event within five
Business Days after a Responsible Officer has knowledge of any of the
following, a written notice setting forth the nature thereof and the
action, if any, that an Issuer, a Subsidiary Guarantor or an ERISA
Affiliate proposes to take with respect thereto:
(i) with respect to any Plan, any reportable event, as
defined in section 4043(c) of ERISA and the regulations
thereunder, for which notice thereof has not been waived pursuant
to such regulations as in effect on the date hereof, or
(ii) the taking by the PBGC of steps to institute, or the
threatening by the PBGC of the institution of, proceedings under
section 4042 of ERISA for the termination of, or the appointment
of a trustee to administer, any Plan, or the receipt by any
Issuer, a Subsidiary Guarantor or any ERISA Affiliate of a notice
from a Multiemployer Plan that such action has been taken by the
PBGC with respect to such Multiemployer Plan; or
(iii) any event, transaction or condition that could result
in the incurrence of any liability by an Issuer, a Subsidiary
Guarantor or any ERISA Affiliate pursuant to Title I or IV of
ERISA or the penalty or excise tax provisions of the Code
relating to employee benefit plans, or in the imposition of any
Lien on any of the rights, properties or assets of any Issuer,
any Subsidiary Guarantor or any ERISA Affiliate pursuant to Title
I or IV of ERISA or such penalty or excise tax provisions, if
such liability or Lien, taken together with any other such
liabilities or Liens then existing, would reasonably be expected
to have a Material Adverse Effect; and
(f) Requested Information -- with reasonable promptness, such
other data and information relating to the business, operations,
affairs, financial condition, assets or properties of any Obligor or
any of its Subsidiaries or relating to the ability of any Obligor to
perform its obligations under the Financing Documents to which it is a
party as from time to time may be reasonably requested by any such
holder of Notes.
7.2. Officer's Certificate.
Each set of financial statements delivered to a holder of Notes
pursuant to Section 7.1(a) or Section 7.1(b) shall be accompanied by a
certificate of a Senior Financial Officer setting forth:
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(a) Covenant Compliance. -- the information (including detailed
calculations) required in order to establish whether the Company was in
compliance with the requirements of Sections 10.3 through 10.7,
inclusive, and Section 10.9, during the quarterly or annual period
covered by the statements then being furnished (including with respect
to each such Section, where applicable, the calculations of the maximum
or minimum amount, ratio or percentage, as the case may be, permissible
under the terms of such Sections, and the calculation of the amount,
ratio or percentage then in existence); and
(b) Event of Default. -- a statement that such officer has
reviewed the relevant terms hereof and has made, or caused to be made,
under his or her supervision, a review of the transactions and
conditions of the Company and its Subsidiaries from the beginning of
the quarterly or annual period covered by the statements then being
furnished to the date of the certificate and that such review shall not
have disclosed the existence during such period of any condition or
event that constitutes a Default or an Event of Default or, if any such
condition or event existed or exists (including, without limitation,
any such event or condition resulting from the failure of the Company
or any Subsidiary to comply with any Environmental Law), specifying the
nature and period of existence thereof and what action the Company
shall have taken or proposes to take with respect thereto.
7.3. Inspection.
The Issuers shall permit the representatives of each holder of Notes
that is an Institutional Investor:
(a) No Default. -- if no Default or Event of Default then exists,
at the expense of such holder and upon reasonable prior notice to the
applicable Issuer: (i) to visit the principal executive office of such
Issuer, to discuss the affairs, finances and accounts of such Issuer
and its Subsidiaries with such Issuer's officers, and (ii) with the
consent of such Issuer (which consent will not be unreasonably
withheld) to visit the other offices and properties of such Issuer and
each of its Subsidiaries, all at such reasonable times and as often as
may be reasonably requested in writing; and
(b) Default. -- if a Default or Event of Default then exists, at
the expense of the Issuers to visit and inspect any of the offices or
properties of any Issuer or any Subsidiary, to examine all their
respective books of account, records, reports and other papers, to make
copies and extracts therefrom, and to discuss their respective affairs,
finances and accounts with their respective officers and independent
public accountants (and by this provision each Issuer authorizes said
accountants to discuss the
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affairs, finances and accounts of the Issuers and their Subsidiaries),
all at such times and as often as may be requested.
8. PREPAYMENT OF THE NOTES.
8.1. Required Prepayments.
The outstanding principal amount, if any, of (i) the Series A Notes
shall be repaid by the Issuers, at par and without payment of the Make-Whole
Amount or any premium, on September 25, 2010, and (ii) the Series B Notes shall
be repaid by the Issuers, at par and without payment of the Make-Whole Amount or
any premium, on September 25, 2013.
8.2. Optional Prepayments with Make-Whole Amount.
The Issuers may, at their option, upon notice as provided below, prepay
at any time all, or from time to time any part of, the Notes (but if in part, in
an amount not less than $5,000,000 or such lesser amount as shall then be
outstanding), at 100% of the principal amount so prepaid, plus the Make-Whole
Amount determined for the prepayment date with respect to such principal amount.
The Issuers will give each holder of Notes written notice of each optional
prepayment under this Section 8.2 not less than 30 days and not more than 60
days prior to the date fixed for such prepayment. Each such notice shall specify
such date, the aggregate principal amount of the Notes to be prepaid on such
date, the principal amount of each Note and of each Series of Notes held by such
holder to be prepaid (determined in accordance with Section 8.5), and the
interest to be paid on the prepayment date with respect to such principal amount
being prepaid, and shall be accompanied by a certificate of a Senior Financial
Officer as to the estimated Make-Whole Amount due in connection with such
prepayment (calculated as if the date of such notice were the date of the
prepayment), setting forth the details of such computation. Two Business Days
prior to such prepayment, the Issuers shall deliver to each holder of Notes a
certificate of a Senior Financial Officer specifying the calculation of such
Make-Whole Amount as of the specified prepayment date.
8.3. Prepayment of Notes Upon Change in Control.
(a) Notice of Change in Control or Control Event. The Company will,
within five Business Days after any Responsible Officer has knowledge
of the occurrence of any Change in Control or Control Event, give
written notice of such Change in Control or Control Event to each
holder of Notes. In the case that a Change in Control has occurred,
such notice shall contain and constitute an offer to prepay Notes as
described in subparagraph (b) of this Section 8.3 and shall be
accompanied by the certificate described in subparagraph (e) of this
Section 8.3.
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(b) Offer to Prepay Notes. The offer to prepay Notes contemplated
by subparagraph (a) of this Section 8.3 shall be an offer to prepay, in
accordance with and subject to this Section 8.3, all, but not less than
all, of the Notes held by each holder (in this case only, "holder" in
respect of any Note registered in the name of a nominee for a disclosed
beneficial owner shall mean such beneficial owner) on a date specified
in such offer (the "Change in Control Prepayment Date") that is not
less than 45 days and not more than 60 days after the date of such
offer (if the Change in Control Prepayment Date shall not be specified
in such offer, the Change in Control Prepayment Date shall be the 45th
day after the date of such offer).
(c) Acceptance; Rejection. A holder of Notes may accept the offer
to prepay made pursuant to this Section 8.3 by causing a notice of such
acceptance to be delivered to the Company not more than 30 days after
the date the written offer notice referred to in subsection (a) of this
Section 8.3 is given to the holders of the Notes. A failure by a holder
of Notes to respond to an offer to prepay made pursuant to this Section
8.3 shall be deemed to constitute a rejection of such offer by such
holder.
(d) Prepayment. Prepayment of the Notes to be prepaid pursuant to
this Section 8.3 shall be at 100% of the principal amount of such
Notes, plus the Modified Make-Whole Amount determined for the Change in
Control Prepayment Date with respect to such principal amount, together
with interest on such Notes accrued to the applicable Change in Control
Prepayment Date. Two Business Days preceding each applicable Change in
Control Prepayment Date, the Company shall deliver to each holder of
Notes being prepaid a certificate of a Senior Financial Officer showing
the Modified Make-Whole Amount due in connection with such prepayment
and setting forth the details of the computation of such amount. Each
prepayment of Notes pursuant to this Section 8.3 shall be made on the
applicable Change in Control Prepayment Date.
(e) Officer's Certificate. Each offer to prepay the Notes
pursuant to this Section 8.3 shall be accompanied by a certificate,
executed by a Senior Financial Officer of the Company and dated the
date of such offer, specifying: (i) the proposed Change in Control
Prepayment Date; (ii) that such offer is made pursuant to this Section
8.3; (iii) the principal amount of each Note offered to be prepaid;
(iv) the estimated Modified Make-Whole Amount, if any, due in
connection with such prepayment (calculated as if the Change in Control
Prepayment Date were the date of such offer), setting forth the details
of such computation; (v) the interest that would be due on each Note
offered to be prepaid as of the Change in Control Prepayment Date; (vi)
that the conditions of this Section 8.3 have been fulfilled; and (vii)
in reasonable detail, the nature and date of the
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Change in Control (including, if known, the name or names of the Person
or Persons acquiring control).
(f) "Change in Control Defined." A "Change in Control" shall
occur if any Person or group of Persons acting in concert, together
with Affiliates thereof, shall in the aggregate, directly or
indirectly, control or own (beneficially or otherwise) more than 50% of
the issued and outstanding Voting Stock of the Company at any time
after the date of Closing or shall otherwise have the ability to elect
a majority of the members of the board of directors of the Company.
(g) "Control Event" Defined. "Control Event" means: (i) the
execution by the Company or any of its Subsidiaries or Affiliates of
any agreement or letter of intent with respect to any proposed
transaction or event or series of transactions or events which,
individually or in the aggregate, may reasonably be expected to result
in a Change in Control, or (ii) the execution of any written agreement
which, when fully performed by the parties thereto, would result in a
Change in Control.
8.4. Offer to Prepay upon the Sale of Certain Assets.
(a) Notice and Offer. In the event of any Debt Prepayment
Application under Section 10.3, the Obligors will, within ten (10) days
of the occurrence of the Transfer (a "Debt Prepayment Transfer") in
respect of which an offer to prepay the Notes is being made to comply
with the provisions for a Debt Prepayment Application (as set forth in
the definition thereof), give written notice of such Debt Prepayment
Transfer to each holder of Notes. Such written notice shall contain,
and such written notice shall constitute, an irrevocable offer (the
"Transfer Prepayment Offer") to prepay, at the election of each holder,
a portion of the Notes held by such holder equal to such holder's
Ratable Portion of the Net Proceeds in respect of such Debt Prepayment
Transfer on a date specified in such notice (the "Transfer Prepayment
Date") that is not less than thirty (30) days and not more than sixty
(60) days after the date of such notice, together with interest on the
amount to be so prepaid accrued to the Transfer Prepayment Date and the
Make-Whole Amount. If the Transfer Prepayment Date shall not be
specified in such notice, the Transfer Prepayment Date shall be the
fortieth (40th) day after the date of such notice.
(b) Acceptance and Payment. To accept such Transfer Prepayment
Offer, a holder of Notes shall cause a notice of such acceptance to be
delivered to the Company not later than twenty (20) days after the date
of such written notice from the Obligors, provided, that failure to
accept such offer in writing within twenty (20) days after the date of
such written notice shall be deemed to constitute an acceptance of the
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Prepayment Offer. If so accepted by any holder of a Note, such offered
prepayment (equal to not less than such holder's Ratable Portion of the
Net Proceeds in respect of such Debt Prepayment Transfer) shall be due
and payable on the Transfer Prepayment Date. Such offered prepayment
shall be made at one hundred percent (100%) of the principal amount of
such Notes being so prepaid, together with interest on such principal
amount then being prepaid accrued to the Transfer Prepayment Date and
the Make-Whole Amount.
(c) Officer's Certificate. Each offer to prepay the Notes
pursuant to this Section 8.4 shall be accompanied by a certificate,
executed by a Senior Financial Officer of the Company and dated the
date of such offer, specifying (i) the Transfer Prepayment Date, (ii)
the Net Proceeds in respect of the applicable Debt Prepayment Transfer,
(iii) that such offer is being made pursuant to Section 8.4 and Section
10.3, (iv) the principal amount of each Note offered to be prepaid, (v)
the interest that would be due on each Note offered to be prepaid,
accrued to the Transfer Prepayment Date, (vi) the estimated Make-Whole
Amount due in respect of each Note (calculated as if the date of the
notice containing the Transfer Prepayment Offer were the date of
prepayment), and (vi) in reasonable detail, the nature of the Transfer
giving rise to such Debt Prepayment Transfer and certifying that no
Default or Event of Default exists or would exist after giving effect
to the prepayment contemplated by such offer.
(d) Notice Concerning Status of Holders of Notes. Promptly after
each Transfer Prepayment Date and the making of all prepayments
contemplated on such Transfer Prepayment Date under this Section 8.4
(and, in any event, within thirty (30) days thereafter), the Company
shall deliver to each holder of Notes a certificate signed by a Senior
Financial Officer of the Company containing a list of the then current
holders of Notes (together with their addresses) and setting forth as
to each such holder the outstanding principal amount of Notes held by
such holder at such time.
8.5. Allocation of Partial Prepayments.
In the case of each partial prepayment of the Notes pursuant to Section
8.2 or Section 8.4, the principal amount of the Notes to be prepaid shall be
allocated among all of the Notes at the time outstanding in proportion, as
nearly as practicable, to the respective unpaid principal amounts thereof not
theretofore called for prepayment, without regard to the Series of such Notes.
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8.6. Maturity; Surrender, etc.
In the case of each prepayment of Notes pursuant to this Section 8, the
principal amount of each Note to be prepaid shall mature and become due and
payable on the date fixed for such prepayment, together with interest on such
principal amount accrued to such date and the applicable Make-Whole Amount, if
any. From and after such date, unless the Issuers shall fail to pay such
principal amount when so due and payable, together with the interest and
Make-Whole Amount, if any, as aforesaid, interest on such principal amount shall
cease to accrue. Any Note paid or prepaid in full shall be surrendered to the
Issuers and cancelled and shall not be reissued, and no Note shall be issued in
lieu of any prepaid principal amount of any Note.
8.7. Purchase of Notes.
No Issuer will, nor will any Issuer permit any Subsidiary or Affiliate
it controls to, purchase, redeem, prepay or otherwise acquire, directly or
indirectly, any of the outstanding Notes except (a) upon the payment or
prepayment of the Notes in accordance with the terms of this Agreement and the
Notes or (b) pursuant to an offer to purchase (with identical information
provided to, and upon the same terms for, each holder of Notes at such time)
made by the Issuers or an Affiliate pro rata (without regard to Series) to the
holders of all Notes at the time outstanding upon the same terms and conditions.
Any such offer shall provide each holder with sufficient information to enable
it to make an informed decision with respect to such offer, and shall remain
open for at least 14 Business Days, provided that an offer made pursuant to
clause (b) is not made concurrently with or as a condition to or in
consideration of or otherwise in connection with an amendment or waiver to this
Agreement. If the holders of more than 15% of the principal amount of the Notes
then outstanding accept such offer, the Company shall promptly notify the
remaining holders of such fact and the expiration date for the acceptance by
holders of Notes of such offer shall be extended by the number of days necessary
to give each such remaining holder at least 10 Business Days from its receipt of
such notice to accept such offer. The Issuers will promptly cancel all Notes
acquired by any of them or any Affiliate pursuant to any payment, prepayment or
purchase of Notes pursuant to any provision of this Agreement and no Notes may
be issued in substitution or exchange for any such Notes.
8.8. Make-Whole Amount; Modified Make-Whole Amount.
The term "Make-Whole Amount" means, with respect to any Note of either
Series, an amount equal to the excess, if any, of the Discounted Value of the
Remaining Scheduled Payments with respect to the Called Principal of such Note
of such Series over the amount of such Called Principal, provided that the
Make-Whole Amount may in no event be less than zero. For the purposes of
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determining the Make-Whole Amount, the following terms have the following
meanings:
"Called Principal" means, with respect to any Note of either Series,
the principal of such Note that is to be prepaid pursuant to Section 8.2,
Section 8.3 or Section 8.4 or has become or is declared to be immediately due
and payable pursuant to Section 12.1, as the context requires.
"Discounted Value" means, with respect to the Called Principal of any
Note of either Series, the amount obtained by discounting all Remaining
Scheduled Payments with respect to such Called Principal from their respective
scheduled due dates to the Settlement Date with respect to such Called
Principal, in accordance with accepted financial practice and at a discount
factor (applied on the same periodic basis as that on which interest on such
Series of Notes is payable) equal to the Reinvestment Yield with respect to such
Called Principal.
"Reinvestment Yield" means, with respect to the Called Principal of any
Note of either Series, 0.50% over the yield to maturity implied by (i) the
yields reported, as of 10:00 A.M. (New York City time) on the second Business
Day preceding the Settlement Date with respect to such Called Principal, on the
display designated as "Page PX1" on the Bloomberg Financial Market Service (or
such other display as may replace Page PX1 on Bloomberg Financial Market
Service) for actively traded U.S. Treasury securities having a maturity equal to
the Remaining Average Life of such Called Principal as of such Settlement Date,
or (ii) if such yields are not reported as of such time or the yields reported
as of such time are not ascertainable, the Treasury Constant Maturity Series
Yields reported, for the latest day for which such yields have been so reported
as of the second Business Day preceding the Settlement Date with respect to such
Called Principal, in Federal Reserve Statistical Release H.15 (519) (or any
comparable successor publication) for actively traded U.S. Treasury securities
having a constant maturity equal to the Remaining Average Life of such Called
Principal as of such Settlement Date. Such implied yield will be determined, if
necessary, by (a) converting U.S. Treasury bill quotations to bond-equivalent
yields in accordance with accepted financial practice and (b) interpolating
linearly between (1) the actively traded U.S. Treasury security with the
maturity closest to and greater than the Remaining Average Life and (2) the
actively traded U.S. Treasury security with the maturity closest to and less
than the Remaining Average Life. The Reinvestment Yield will be rounded to two
decimal places.
"Remaining Average Life" means, with respect to any Called Principal of
either Series of Notes, the number of years (calculated to the nearest
one-twelfth year) obtained by dividing (i) such Called Principal into (ii) the
sum of the products obtained by multiplying (a) the principal component of each
Remaining Scheduled Payment with respect to such Called Principal by (b) the
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number of years (calculated to the nearest one-twelfth year) that will elapse
between the Settlement Date with respect to such Called Principal and the
scheduled due date of such Remaining Scheduled Payment.
"Remaining Scheduled Payments" means, with respect to the Called
Principal of any Note of either Series, all payments of such Called Principal
and interest thereon that would be due after the Settlement Date with respect to
such Called Principal if no payment of such Called Principal were made prior to
its scheduled due date, provided that if such Settlement Date is not a date on
which interest payments are due to be made under the terms of the Notes of such
Series, then the amount of the next succeeding scheduled interest payment will
be reduced by the amount of interest accrued to such Settlement Date and
required to be paid on such Settlement Date pursuant to Section 8.2, Section
8.3, Section 8.4 or Section 12.1.
"Settlement Date" means, with respect to the Called Principal of any
Note of either Series, the date on which such Called Principal is to be prepaid
pursuant to Section 8.2, Section 8.3 or Section 8.4 or has become or is declared
to be immediately due and payable pursuant to Section 12.1, as the context
requires.
The term "Modified Make-Whole Amount" means, with respect to any Note
of any Series, the Make-Whole Amount therefor calculated on the basis of a
"Reinvestment Yield" in which "0.75%" has been substituted for "0.50%". In the
event that the Issuers shall incorrectly compute any Make-Whole Amount or any
Modified Make-Whole Amount payable in connection with any Note to be prepaid, no
Issuer nor any holder of any Note shall be bound by such incorrect computation,
but instead, shall be entitled to receive an amount equal to the correct
Make-Whole Amount or Modified Make-Whole Amount (or a refund, in the case of the
Issuers), as the case may be, computed in compliance with the terms of this
Agreement.
9. AFFIRMATIVE COVENANTS.
Each of Issuers covenants that so long as any of the Notes are
outstanding:
9.1. Compliance with Law.
Each of the Issuers will and will cause each of their Subsidiaries to
comply with all laws, ordinances or governmental rules or regulations to which
each of them is subject, including, without limitation, Environmental Laws, and
will obtain and maintain in effect all licenses, certificates, permits,
franchises and other governmental authorizations necessary to the ownership of
their respective properties or to the conduct of their respective businesses, in
each case to the extent necessary to ensure that non-compliance with such laws,
ordinances or governmental rules or regulations or failures to obtain or
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maintain in effect such licenses, certificates, permits, franchises and other
governmental authorizations would not reasonably be expected, individually or in
the aggregate, to have a materially adverse effect on the business, operations,
affairs, financial condition, properties or assets of the Issuers and their
Subsidiaries, taken as a whole.
9.2. Insurance.
Each of the Issuers will and will cause each of their Subsidiaries to
maintain, with financially sound and reputable insurers, insurance with respect
to their respective properties and businesses against such casualties and
contingencies, of such types, on such terms and in such amounts (including
deductibles, co-insurance and self-insurance, if adequate reserves are
maintained with respect thereto) as is customary in the case of entities of
established reputations engaged in the same or a similar business and similarly
situated.
9.3. Maintenance of Properties.
Each of the Issuers will and will cause each of their Subsidiaries to
maintain and keep, or cause to be maintained and kept, their respective
properties in good repair, working order and condition (other than ordinary wear
and tear), so that the business carried on in connection therewith may be
properly conducted at all times, provided that this Section shall not prevent
any Issuer or any of its Subsidiary from discontinuing the operation and the
maintenance of any of its properties if such discontinuance is desirable in the
conduct of its business and the Issuers have concluded that such discontinuance
would not, individually or in the aggregate, to have a materially adverse effect
on the business, operations, affairs, financial condition, properties or assets
of the Issuers and their Subsidiaries, taken as a whole.
9.4. Payment of Taxes.
Each of the Issuers will and will cause each of their Subsidiaries to
file all income tax or similar tax returns required to be filed in any
jurisdiction and to pay and discharge all taxes shown to be due and payable on
such returns and all other taxes, assessments, governmental charges, or levies
payable by any of them, to the extent such taxes and assessments have become due
and payable and before they have become delinquent and claims for which sums
have become due and payable that have or might become a Lien on properties or
assets of any Issuer or any Subsidiary, provided that none of the Issuers nor
any of their Subsidiaries need pay any such tax or assessment or claim if (a)
the amount, applicability or validity thereof is contested by such Issuer or
such Subsidiary on a timely basis in good faith and in appropriate proceedings,
and such Issuer or such Subsidiary has established adequate reserves therefor in
accordance with GAAP on the books of such Issuer or such Subsidiary or (b)
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the nonpayment of all such taxes and assessments in the aggregate would not
reasonably be expected to have a materially adverse effect on the business,
operations, affairs, financial condition, properties or assets of the Issuers
and their Subsidiaries, taken as a whole.
9.5. Corporate Existence, etc.
Each of the Issuers will at all times preserve and keep in full force
and effect its corporate existence. Subject to Sections 10.2 and 10.3, each of
the Issuers will at all times preserve and keep in full force and effect the
corporate existence of each of its Subsidiaries (unless merged into the Company
or another Subsidiary) and all rights and franchises of the Issuers and their
Subsidiaries unless, in the good faith judgment of such Issuer, the termination
of or failure to preserve and keep in full force and effect such corporate
existence, right or franchise would not, individually or in the aggregate, to
have a materially adverse effect on the business, operations, affairs, financial
condition, properties or assets of the Issuers and their Subsidiaries, taken as
a whole.
9.6. Additional Subsidiary Guarantors.
The Company will cause each Person which is or becomes a Material
Subsidiary or which is designated by the Company as a "Material Subsidiary"
pursuant to Section 10.9 to become a Subsidiary Guarantor on a joint and several
basis with all other Subsidiary Guarantors under the Subsidiary Guarantee as
promptly as practicable after (but in any event within 90 days of) the date such
Person first satisfies the foregoing criteria, by causing such Subsidiary to
execute and deliver to the holders of the Notes an accession agreement to the
Subsidiary Guarantee in the form attached to the Subsidiary Guarantee, together
with all documents and opinions which the Required Holders may reasonably
request relating to the existence of such Subsidiary, the corporate or other
authority for and the validity of the Subsidiary Guarantee, and any other
matters reasonably determined by the Required Holders to be relevant thereto,
all in form and substance reasonably satisfactory to the Required Holders.
10. NEGATIVE COVENANTS.
Each of the Issuers covenants that so long as any of the Notes are
outstanding.
10.1. Transactions with Affiliates.
No Issuer will, and no Issuer will permit any Subsidiary to, enter into
directly or indirectly any Material transaction or Material group of related
transactions (including without limitation the purchase, lease, sale or exchange
of properties of any kind or the rendering of any service) with any Affiliate
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(other than the Company or another Subsidiary), except pursuant to the
reasonable requirements of the Company's or such Subsidiary's business and upon
fair and reasonable terms no less favorable to the Company or such Subsidiary
than would be obtainable in a comparable arm's length transaction with a Person
not an Affiliate.
10.2. Mergers and Consolidations.
No Issuer will, nor will it permit any Subsidiary to, consolidate with
or merge with any other Person or convey, transfer or lease all or substantially
all of its assets in a single transaction or series of transactions to any
Person unless:
(a) the successor formed by such consolidation or the survivor
of such merger or the Person that acquires by conveyance, transfer or
lease all or substantially all of the assets of such Issuer or such
Subsidiary, as the case may be (the "Successor Corporation"), shall be
a solvent corporation organized and existing under the laws of the
United States or any State thereof (including the District of
Columbia), and (i) except for any such transaction involving only
Issuers and/or only Subsidiary Guarantors, such corporation shall have
executed and delivered to each holder of any Notes its assumption of
the due and punctual performance and observance of each covenant and
condition of such Obligor under the applicable Financing Documents in
form and substance satisfactory to the Required Holders and (ii) shall
have caused to be delivered to each holder of any Notes an opinion
reasonably satisfactory to the Required Holders of nationally
recognized independent counsel, or other independent counsel reasonably
satisfactory to the Required Holders, to the effect that all agreements
or instruments effecting such assumption are enforceable in accordance
with their respective terms (except as such enforceability may be
limited by (x) bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights
generally and (y) general principles of equity) and comply with the
terms hereof; and
(b) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing and
the Company shall have delivered to each holder of the Notes
computations evidencing, on a pro forma basis, as if such transaction
had occurred the day before the last day of the most recently ended
fiscal quarter, compliance (on consolidated basis) with Section 10.3,
Section 10.4, Section 10.5, Section 10.6, Section 10.7 and Section
10.9.
No such conveyance, transfer or lease of all or substantially all of
the assets of any Obligor shall have the effect of releasing such Obligor or any
Successor Corporation that shall theretofore have become such in the manner
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prescribed in this Section 10.2 from its liability under the applicable
Financing Documents.
10.3. Sale of Assets.
No Issuer will nor will any Issuer permit any Subsidiary to make any
Asset Disposition unless:
(a) in the good faith opinion of the Company, the Asset
Disposition is in exchange for consideration having a Fair Market Value
at least equal to that of the property exchanged and is in the best
interest of the Company or such Subsidiary;
(b) immediately after giving effect to the Asset Disposition, no
Default or Event of Default would exist; and
(c) immediately after giving effect to the Asset Disposition, the
Disposition Value of all property that was the subject of any Asset
Disposition occurring during the 365 consecutive day period ending on
and including the date of such Asset Disposition would not exceed 10%
of Consolidated Total Assets determined as of the end of the then most
recently ended fiscal quarter of the Company.
If the Net Proceeds arising from any Transfer is applied to a Debt
Prepayment Application or a Property Reinvestment Application within 365 days
after such Transfer, then such Transfer, only for the purpose of determining
compliance with subsection (c) of this Section 10.3 as of any date, shall be
deemed not to be an Asset Disposition as of the date of such application.
10.4. Limitation on Consolidated Debt.
The Company will not permit the ratio of Consolidated Debt to
Consolidated Total Capitalization, in each case as of the last day of each
fiscal quarter of the Company, to be greater than 0.60 to 1.00.
10.5. Limitation on Priority Debt.
The Company will not at any time permit Priority Debt to exceed 25% of
Consolidated Net Worth (determined as of the last day of the most recently ended
fiscal quarter of the Company).
10.6. Minimum Consolidated Net Worth.
The Company will not, at any time, permit Consolidated Net Worth to be
less than the sum of (a) $326,629,000.00, plus (b) an amount equal to 50% of its
aggregate Consolidated Net Income (but only if a positive number) for each
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completed fiscal quarter of the Company at such time ending on or after June 30,
2003.
10.7. Limitation on Liens.
No Issuer will, nor will any Issuer permit any Subsidiary to, directly
or indirectly create, incur, assume or permit to exist any Lien on or with
respect to any property or assets (including, without limitation, any document
or instrument in respect of goods or accounts receivable) of any Issuer or any
Subsidiary whether now owned or held or hereafter acquired, or any income or
profits therefrom, or assign or otherwise convey any right to receive income or
profits except for the following:
(a) Liens for taxes, assessments or other governmental charges
which are not yet due and payable or the payment of which is not at the
time required by Section 9.4;
(b) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other similar Liens, in each
case, incurred in the ordinary course of business for sums not yet due
and payable or the payment of which is not at the time required by
Section 9.4;
(c) Liens (other than any Lien imposed by ERISA) incurred or
deposits made in the ordinary course of business or the ownership of
properties and assets (i) in connection with workers' compensation,
unemployment insurance and other types of social security or retirement
benefits, or (ii) to secure (or to obtain letters of credit that
secure) the performance of tenders, statutory obligations, surety
bonds, appeal bonds, bids, leases (other than Capital Leases),
performance bonds, purchase, construction or sales contracts and other
similar obligations, in each case not incurred or made in connection
with the borrowing of money, the obtaining of advances or credit or the
payment of the deferred purchase price of property;
(d) Liens resulting from judgments, unless such judgments are
not, within 90 days, discharged or stayed pending appeal, or shall not
have been discharged within 90 days after the expiration of any such
stay;
(e) Liens on property or assets of any Issuer securing Debt of a
Subsidiary owed to the Company or to a Wholly-Owned Subsidiary;
(f) Liens in existence at Closing and securing the Debt of the
Company and its Subsidiaries as set forth in Schedule 5.15;
(g) minor survey exceptions and the like which do not materially
detract from the value of such property;
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(h) Leases or subleases granted to others, easements,
rights-of-way, restrictions and other similar charges or encumbrances,
in each case incidental to, and not interfering with, the ownership of
property or assets or the ordinary conduct of any Issuer's or any of
its Subsidiaries' businesses, provided that such Liens do not, in the
aggregate, materially detract from the value of such property;
(i) Liens securing any obligations of a Person existing at the
time such Person becomes a Subsidiary or is merged into or consolidated
with the Company or a Subsidiary or Liens on an asset existing at the
time such asset shall have first been acquired by the Company or any
Subsidiary, provided that (i) such Liens shall not extend to or cover
any property other than the property subject to such Liens immediately
prior to such time, (ii) such Liens shall not have been created in
contemplation of such merger, consolidation or acquisition or such
Person becoming a Subsidiary, and (iii) the principal amount of the
obligations secured by such Liens is not increased after such time;
(j) any Lien created on tangible personal property (or any
improvement thereon) to secure all or any part of the purchase price or
cost of construction, improvement or development of such tangible
personal property (or any improvement thereon), or to secure Debt
incurred or assumed to pay all or any part of the purchase price or the
cost of construction of tangible personal property (or any improvement
thereon) acquired or constructed by the Company or any Subsidiary after
the date of the Closing, provided that
(i) the principal amount of the Debt secured by any such
Lien shall at no time exceed an amount equal to the lesser of (A)
the cost to the Company or such Subsidiary of the property (or
improvement thereon) so acquired or constructed and (B) the Fair
Market Value (as determined in good faith by a Responsible
Officer of such Person) of such property and any improvements
thereon at the time of such acquisition or construction;
(ii) each such Lien shall extend solely to the item or
items of property (or improvement thereon) so acquired or
constructed and, if required by the terms of the instrument
originally creating such Lien, other property (or improvement
thereon) which is an improvement to or is acquired for specific
use in connection with such acquired or constructed property (or
improvement thereon); and
(iii) any such Lien shall be created contemporaneously
with, or within 180 days after, the acquisition or construction
of such property (or improvement thereon);
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(k) any Lien renewing, extending or refunding Liens permitted by
paragraphs (i) and (j) of this Section 10.7, provided that (i) the
principal amount of the Debt secured by such Lien immediately prior to
such renewal, extension or refunding is not increased or the maturity
thereof reduced, (ii) such Lien is not extended to any other property,
and (iii) immediately after such extension, renewal, or refunding, no
Default or Event of Default would exist; and
(l) Liens not otherwise permitted by subsections (a) through (k)
above, provided that Priority Debt shall not at any time exceed 25% of
Consolidated Net Worth (determined as of the end of the most recently
ended fiscal quarter of the Company).
10.8. Nature of Business.
No Issuer will engage to any substantial extent in any business, if as
a result, when taken as a whole together with the other Issuers and their
Subsidiaries, the general nature of their businesses would be substantially
changed from the general nature of their businesses engaged in at Closing as
described in the Memorandum.
10.9. Material Subsidiaries.
The Company will not permit the total assets of all Material
Subsidiaries and the Company to be less than 90% of the Consolidated Total
Assets as of the end of the most recently completed fiscal quarter for which
financial information is available, determined in accordance with GAAP;
provided, that the Company shall have the right to designate any of its
Subsidiaries that is not then a Material Subsidiary as a Material Subsidiary
(regardless of whether it meets the requirements set forth in the definition of
such term) in order to comply with the provisions set forth in this Section, so
long as such designation is made no later than the last day for delivery of a
compliance certificate pursuant to Section 7.2(a) for the fiscal quarter for
which such designation is made.
11. EVENTS OF DEFAULT.
An "Event of Default" shall exist if any of the following conditions or
events shall occur and be continuing:
(a) any Issuer defaults in the payment of any principal or
Make-Whole Amount or Modified Make-Whole Amount, if any, on any Note
when the same becomes due and payable, whether at maturity or at a date
fixed for prepayment or by declaration or otherwise; or
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(b) any Issuer defaults in the payment of any interest on any
Note for more than five Business Days after the same becomes due and
payable; or
(c) any Issuer defaults in the performance of or compliance with
any term contained in Section 10 and such default is not remedied
within five Business Days after the earlier of (i) a Responsible
Officer obtaining actual knowledge of such default and (ii) the Company
receiving written notice of such default from any holder of a Note (any
such written notice to be identified as a "notice of default" and to
refer specifically to this paragraph (c) of Section 11); or
(d) any Issuer defaults in the performance of or compliance with
any term contained herein (other than those referred to in paragraphs
(a), (b) and (c) of this Section 11) and such default is not remedied
within 30 days after the earlier of (i) a Responsible Officer obtaining
actual knowledge of such default and (ii) the Company receiving written
notice of such default from any holder of a Note (any such written
notice to be identified as a "notice of default" and to refer
specifically to this paragraph (d) of Section 11); or
(e) any representation or warranty made in writing by or on
behalf of any Obligor or by any officer of such Obligor in any
Financing Document or in any writing furnished in connection with the
transactions contemplated hereby proves to have been false or incorrect
in any material respect on the date as of which made; or
(f) (i) any Issuer or any Material Subsidiary is in default (as
principal or as guarantor or other surety) in the payment of any
principal of or premium or make-whole amount or interest on any Debt
that is outstanding in an aggregate principal amount of at least
$20,000,000 beyond any period of grace provided with respect thereto,
or (ii) any Issuer or any Material Subsidiary is in default in the
performance of or compliance with any term of any evidence of any Debt
in an aggregate outstanding principal amount of at least $20,000,000 or
of any mortgage, indenture or other agreement relating thereto or any
other condition exists, and as a consequence of such default or
condition such Debt has become, or has been declared due and payable
before its stated maturity or before its regularly scheduled dates of
payment; or
(g) any Issuer or any Material Subsidiary (i) is generally not
paying, or admits in writing its inability to pay, its debts as they
become due, (ii) files, or consents by answer or otherwise to the
filing against it of, a petition for relief or reorganization or
arrangement or any other petition in bankruptcy, for liquidation or to
take advantage of any bankruptcy, insolvency, reorganization,
moratorium or other similar law of any
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jurisdiction, (iii) makes an assignment for the benefit of its
creditors, (iv) consents to the appointment of a custodian, receiver,
trustee or other officer with similar powers with respect to it or
with respect to any substantial part of its property, (v) is
adjudicated as insolvent or to be liquidated, or (vi) takes corporate
action for the purpose of any of the foregoing; or
(h) a court or governmental authority of competent jurisdiction
enters an order appointing, without consent by any Issuer or any
Material Subsidiary, a custodian, receiver, trustee or other officer
with similar powers with respect to it or with respect to any
substantial part of its property, or constituting an order for relief
or approving a petition for relief or reorganization or any other
petition in bankruptcy or for liquidation or to take advantage of any
bankruptcy or insolvency law of any jurisdiction, or ordering the
dissolution, winding-up or liquidation of any Issuer or any Material
Subsidiary, or any such petition shall be filed against any Issuer or
any Material Subsidiary and such petition shall not be dismissed within
90 days; or
(i) a final judgment or judgments for the payment of money
aggregating in excess of $20,000,000 are rendered against one or more
of the Issuers and any of its Material Subsidiaries and which judgments
are not, within 90 days after entry thereof, bonded, discharged or
stayed pending appeal, or are not discharged within 90 days after the
expiration of such stay; or
(j) any Subsidiary Guarantor fails or neglects to observe,
perform or comply with any term, provision, condition, covenant,
warranty or representation contained in the Subsidiary Guarantee; or
(k) if (i) any Plan shall fail to satisfy the minimum funding
standards of ERISA or the Code for any plan year or part thereof or a
waiver of such standards or extension of any amortization period is
sought or granted under section 412 of the Code, (ii) a notice of
intent to terminate any Plan shall have been or is reasonably expected
to be filed with the PBGC or the PBGC shall have instituted proceedings
under ERISA section 4042 to terminate or appoint a trustee to
administer any Plan or the PBGC shall have notified the Issuers or any
ERISA Affiliate that a Plan may become a subject of any such
proceedings, (iii) the aggregate "amount of unfunded benefit
liabilities" (within the meaning of section 4001(a)(18) of ERISA) under
all Plans, determined in accordance with Title IV of ERISA, shall
exceed $20,000,000, (iv) any Issuer, any Material Subsidiary or any
ERISA Affiliate shall have incurred or is reasonably expected to incur
any liability pursuant to Title I or IV of ERISA or the penalty or
excise tax provisions of the Code relating to employee benefit plans,
or (v) any Issuer or any ERISA Affiliate withdraws
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from any Multiemployer Plan, and any such event or events described in
clauses (i) through (v) above, either individually or together with any
other such event or events, would reasonably be expected to have a
Material Adverse Effect; or
(l) the Subsidiary Guarantee is not or ceases to be effective or
is alleged by any Obligor to be ineffective for any reason.
As used in Section 11(k), the terms "employee benefit plan" and "employee
welfare benefit plan" shall have the respective meanings assigned to such terms
in section 3 of ERISA.
12. REMEDIES ON DEFAULT, ETC.
12.1. Acceleration.
(a) If an Event of Default with respect to the Company described
in Section 11 (g) or 11 (h) (other than an Event of Default described
in clause (i) of Section 11 (g) or described in clause (vi) of
paragraph (g) by virtue of the fact that such clause encompasses clause
(i) of Section 11 (g)) has occurred, all the Notes then outstanding
shall automatically become immediately due and payable.
(b) If any other Event of Default has occurred and is continuing,
the Required Holders may at any time at its or their option, by notice
or notices to the Company, declare all the Notes then outstanding to be
immediately due and payable.
(c) If any Event of Default described in Section 11(a) or 11(b)
has occurred and is continuing, any holder or holders of Notes at the
time outstanding affected by such Event of Default may at any time, at
its or their option, by notice or notices to the Company, declare all
the Notes held by it or them to be immediately due and payable.
Upon any Notes becoming due and payable under this Section 12.1, whether
automatically or by declaration, such Notes will forthwith mature and the entire
unpaid principal amount of such Notes, plus (x) all accrued and unpaid interest
thereon and (y) the Make-Whole Amount determined in respect of such principal
amount (to the full extent permitted by applicable law), shall all be
immediately due and payable, in each and every case without presentment, demand,
protest or further notice, all of which are hereby waived. Each of the Issuers
acknowledges, and the parties hereto agree, that each holder of a Note has the
right to maintain its investment in the Notes free from repayment by the Issuers
(except as herein specifically provided for) and that the provision for payment
of a Make-Whole Amount by the Issuers in the event that the Notes are prepaid or
are accelerated as a result of an Event of Default, is intended to
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provide compensation for the deprivation of such right under such circumstances.
12.2. Other Remedies.
If any Default or Event of Default has occurred and is continuing, and
irrespective of whether any Notes have become or have been declared immediately
due and payable under Section 12.1, the holder of any Note at the time
outstanding may proceed to protect and enforce the rights of such holder by an
action at law, suit in equity or other appropriate proceeding, whether for the
specific performance of any agreement contained herein or in any Note, or for an
injunction against a violation of any of the terms hereof or thereof, or in aid
of the exercise of any power granted hereby or thereby or by law or otherwise.
12.3. Rescission.
At any time after any Notes have been declared due and payable pursuant
to clause (b) or (c) of Section 12.1, the Required Holders, by written notice to
the Company, may rescind and annul any such declaration and its consequences if
(a) the Company has paid all overdue interest on the Notes, all principal of and
Make-Whole Amount or Modified Make-Whole Amount, if any, on any Notes that are
due and payable and are unpaid other than by reason of such declaration, and all
interest on such overdue principal and Make-Whole Amount or Modified Make-Whole
Amount, if any, and (to the extent permitted by applicable law) any overdue
interest in respect of each Series of the Notes, at the Default Rate for such
Series, (b) all Events of Default and Defaults, other than non-payment of
amounts that have become due solely by reason of such declaration, have been
cured or have been waived pursuant to Section 17, and (c) no judgment or decree
has been entered for the payment of any monies due pursuant hereto or to the
Notes. No rescission and annulment under this Section 12.3 will extend to or
affect any subsequent Event of Default or Default or impair any right consequent
thereon.
12.4. No Waivers or Election of Remedies, Expenses, etc.
No course of dealing and no delay on the part of any holder of any Note
in exercising any right, power or remedy shall operate as a waiver thereof or
otherwise prejudice such holder's rights, powers or remedies. No right, power or
remedy conferred by this Agreement or by any Note upon any holder thereof shall
be exclusive of any other right, power or remedy referred to herein or therein
or now or hereafter available at law, in equity, by statute or otherwise.
Without limiting the obligations of the Issuers under Section 15, the Issuers
will pay to the holder of each Note on demand such further amount as shall be
sufficient to cover all costs and expenses of such holder incurred in any
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enforcement or collection under this Section 12, including, without limitation,
reasonable attorneys' fees, expenses and disbursements.
13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES.
13.1. Registration of Notes.
The Company shall keep at its principal executive office a register for
the registration and registration of transfers of Notes. The name and address of
each holder of one or more Notes, each transfer thereof and the name and address
of each transferee of one or more Notes shall be registered in such register.
Prior to due presentment for registration of transfer, the Person in whose name
any Note shall be registered shall be deemed and treated as the owner and holder
thereof for all purposes hereof, and the Company shall not be affected by any
notice or knowledge to the contrary. The Company shall give to any holder of a
Note that is an Institutional Investor promptly upon request therefor, a
complete and correct copy of the names and addresses of all registered holders
of Notes.
13.2. Transfer and Exchange of Notes.
Upon surrender of any Note at the principal executive office of the
Company for registration of transfer or exchange (and in the case of a surrender
for registration of transfer, duly endorsed or accompanied by a written
instrument of transfer duly executed by the registered holder of such Note or
its attorney duly authorized in writing and accompanied by the address for
notices of each transferee of such Note or part thereof), the Issuers shall
execute and deliver, at the Issuers' expense (except as provided below), one or
more new Notes (as requested by the holder thereof) of the same Series in
exchange therefor, in an aggregate principal amount equal to the unpaid
principal amount of the surrendered Note and each bearing the same legend as
appears on the surrendered Note. Each such new Note shall be payable to such
Person as such holder may request and shall be substantially in the form of
Notes for such Series set forth in Exhibit 1(a) or Exhibit l(b), as the case may
be. Each such new Note shall be dated and bear interest from the date to which
interest shall have been paid on the surrendered Note or dated the date of the
surrendered Note if no interest shall have been paid thereon. The Issuers may
require payment of a sum sufficient to cover any stamp tax or governmental
charge imposed in respect of any such transfer of Notes. Notes shall not be
transferred in denominations of less than $250,000, provided that if necessary
to enable the registration of transfer by a holder of its entire holding of
Notes, one Note may be in a denomination of less than $250,000. Each holder that
transfers Notes shall be deemed to have represented and warranted to the Issuers
that such transfer has been effected in compliance with applicable securities
laws. Any transferee, by its acceptance of a Note registered in its name (or the
name of its nominee), shall be deemed to have
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made the representation set forth in Section 6 hereof and shall have agreed to
abide by the provisions of Section 20 hereof.
13.3. Replacement of Notes.
Upon receipt by the Company of evidence reasonably satisfactory to it
of the ownership of and the loss, theft, destruction or mutilation of any Note
(which evidence shall be, in the case of an Institutional Investor, notice from
such Institutional Investor of such ownership and such loss, theft, destruction
or mutilation), and
(a) in the case of loss, theft or destruction, of an executed
certificate of loss including an indemnity reasonably satisfactory to
it (provided that if the holder of such Note is, or is a nominee for,
an original purchaser or another holder of a Note with a minimum net
worth of at least $50,000,000, such Person's own unsecured agreement of
indemnity shall be deemed to be satisfactory), or
(b) in the case of mutilation, upon surrender and cancellation
thereof,
the Issuers at their own expense shall execute and deliver, in lieu thereof, a
new Note of the same Series, dated and bearing interest from the date to which
interest shall have been paid on such lost, stolen, destroyed or mutilated Note
or dated the date of such lost, stolen, destroyed or mutilated Note if no
interest shall have been paid thereon, bearing the same legend as appears on
such lost, stolen, destroyed or mutilated Note.
14. PAYMENTS ON NOTES.
14.1. Place of Payment.
Subject to Section 14.2, payments of principal, Make-Whole Amount or
Modified Make-Whole Amount, if any, and interest becoming due and payable on the
Notes shall be made in Roseland, New Jersey at the principal office of the
Company in such jurisdiction. The Issuers may at any time, by notice to each
holder of a Note, change the place of payment of the Notes so long as such place
of payment shall be either the principal office of the Company in the United
States or the principal office of a bank or trust company in the United States.
14.2. Home Office Payment.
So long as any Purchaser or its nominee shall be the holder of any
Note, and notwithstanding anything contained in Section 14.1 or in such Note to
the contrary, the Issuers will pay all sums becoming due on such Note for
principal, Make-Whole Amount or Modified Make-Whole Amount, if any, and
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interest by the method and at the address specified for such purpose opposite
such Purchaser's name in Schedule A, or by such other method or at such other
address as such Purchaser shall have from time to time specified to the Issuers
in writing for such purpose, without the presentation or surrender of such Note
or the making of any notation thereon, except that upon written request of the
Issuers made concurrently with or reasonably promptly after payment or
prepayment in full of any Note, such Purchaser shall surrender such Note for
cancellation, reasonably promptly after any such request, to the Company at its
principal executive office or at the place of payment most recently designated
by the Issuers pursuant to Section 14.1. Prior to any sale or other disposition
of any Note held by any Purchaser or its nominee such Purchaser will, at its
election, either endorse thereon the amount of principal paid thereon and the
last date to which interest has been paid thereon or surrender such Note to the
Company in exchange for a new Note or Notes pursuant to Section 13.2. The
Issuers will afford the benefits of this Section 14.2 to any Institutional
Investor that is the direct or indirect transferee of any Note purchased by such
Purchaser under this Agreement and that has made the same agreement relating to
such Note as such Purchaser have made in this Section 14.2.
15. EXPENSES, ETC.
15.1. Transaction Expenses.
Whether or not the transactions contemplated hereby are consummated,
the Issuers will pay all costs and expenses (including reasonable attorneys'
fees of a special counsel and, if reasonably required, local or other counsel)
incurred by each Purchaser or holder of a Note in connection with such
transactions and in connection with any amendments, waivers or consents under or
in respect of this Agreement, the Subsidiary Guarantee or the Notes (whether or
not such amendment, waiver or consent becomes effective), including, without
limitation: (a) the costs and expenses incurred in enforcing or defending (or
determining whether or how to enforce or defend) any rights under this
Agreement, the Subsidiary Guarantee or the Notes or in responding to any
subpoena or other legal process or informal investigative demand issued in
connection with this Agreement, the Subsidiary Guarantee or the Notes, or by
reason of being a holder of any Note, and (b) the costs and expenses, including
financial advisors' fees, incurred in connection with the insolvency or
bankruptcy of any Obligor or any Subsidiary or in connection with any work-out
or restructuring of the transactions contemplated hereby and by the Notes,
provided, however, that the Issuers shall only be liable under this Section 15.1
for the reasonable attorney's fees of a single special counsel and, if
reasonably required, a single local counsel in each jurisdiction where any
Issuer or Subsidiary Guarantor conducts business, in each case acting on behalf
of the holders of Notes as a group, unless, in the reasonable judgment of any
holder of Notes a conflict exists between such holder of Notes and any other
holder of
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Notes, in which event the Issuers shall be obligated to pay the fees
and expenses of such additional counsel or counsels as shall be necessary to
eliminate such conflict. The Issuers will pay, and will save each Purchaser and
each other holder of a Note harmless from, all claims in respect of any fees,
costs or expenses if any, of brokers and finders (other than those retained by
any Purchaser).
15.2. Survival.
The joint and several obligations of the Issuers under this Section 15
will survive the payment or transfer of any Note, the enforcement, amendment or
waiver of any provision of this Agreement or the Notes, and the termination of
this Agreement.
16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT.
All representations and warranties contained herein shall survive the
execution and delivery of this Agreement and the Notes, the purchase or transfer
by any Purchaser or any holder of any Note or portion thereof or interest
therein and shall expire upon the payment in full of all amounts in respect of
the Notes, and may be relied upon by any subsequent holder of a Note, regardless
of any investigation made at any time by or on behalf of such Purchaser or any
other holder of a Note. All statements contained in any certificate or other
instrument delivered by or on behalf of the Issuers pursuant to this Agreement
shall be deemed representations and warranties of the Issuers under this
Agreement. Subject to the preceding sentence, this Agreement and the Notes
embody the entire agreement and understanding between each Purchaser and the
Issuers and supersede all prior agreements and understandings relating to the
subject matter hereof
17. AMENDMENT AND WAIVER.
17.1. Requirements.
This Agreement and the Notes may be amended, and the observance of any
term hereof or of the Notes may be waived (either retroactively or
prospectively), with (and only with) the written consent of the Issuers and the
Required Holders, except that (a) no amendment or waiver of any of the
provisions of any of Sections 1, 2, 3, 4, 5, 6 or 21 hereof, or any defined term
(as it is used therein), will be effective as to any holder unless consented to
by such holder in writing, and (b) no such amendment or waiver may, without the
written consent of the holder of each Note at the time outstanding affected
thereby, (i) subject to the provisions of Section 12 relating to acceleration or
rescission, change the amount or time of any prepayment or payment of principal
of, or reduce the rate or change the time of payment or method of computation of
interest or of the Make-Whole Amount or Modified Make-Whole
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Amount on, either Series of the Notes, (ii) change the percentage of the
principal amount of the Notes the holders of which are required to consent to
any such amendment or waiver, or (iii) amend any of Sections 8, 11(a), 11(b),
12, 17 or 20.
17.2. Solicitation of Holders of Notes.
(i) Solicitation. The Issuers will provide each holder of
the Notes (irrespective of the amount of Notes then owned by it)
with sufficient information, sufficiently far in advance of the
date a decision is required, to enable such holder to make an
informed and considered decision with respect to any proposed
amendment, waiver or consent in respect of any of the provisions
hereof or of the Notes. The Issuers will deliver executed or true
and correct copies of each amendment, waiver or consent effected
pursuant to the provisions of this Section 17 to each holder of
outstanding Notes promptly following the date on which it is
executed and delivered by, or receives the consent or approval
of, the requisite holders of Notes.
(ii) Payment. The Issuers will not directly or indirectly
pay or cause to be paid any remuneration, whether by way of
supplemental or additional interest, fee or otherwise, or grant
any security, or other right or preferred treatment, to any
holder of Notes as consideration for or as an inducement to the
entering into by any holder of Notes of any waiver or amendment
of any of the terms and provisions hereof unless such
remuneration is concurrently paid, or security is concurrently
granted, on the same terms, ratably to each holder of Notes then
outstanding even if such holder did not consent to such waiver or
amendment.
17.3. Binding Effect, etc.
Any amendment or waiver consented to as provided in this Section 17
applies equally to all holders of Notes and is binding upon them and upon each
future holder of any Note and upon the Issuers without regard to whether such
Note has been marked to indicate such amendment or waiver. No such amendment or
waiver will extend to or affect any obligation, covenant, agreement, Default or
Event of Default not expressly amended or waived or impair any right consequent
thereon. No course of dealing between any Issuer and the holder of any Note nor
any delay in exercising any rights hereunder or under any Note shall operate as
a waiver of any rights of any holder of such Note. As used herein, the term
"Agreement" and references thereto shall mean this Agreement as it may from time
to time be amended or supplemented.
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17.4. Notes held by the Issuers, etc.
Solely for the purpose of determining whether the holders of the
requisite percentage of the aggregate principal amount of Notes then outstanding
approved or consented to any amendment, waiver or consent to be given under this
Agreement or the Notes, or have directed the taking of any action provided
herein or in the Notes to be taken upon the direction of the holders of a
specified percentage of the aggregate principal amount of Notes then
outstanding, Notes directly or indirectly owned by any of the Issuers or any of
their Affiliates shall be deemed not to be outstanding.
18. NOTICES.
All notices and communications provided for hereunder shall be in
writing and sent (a) by telecopy if the sender on the same day sends a
confirming copy of such notice by a recognized overnight delivery service
(charges prepaid), or (b) by registered or certified mail with return receipt
requested (postage prepaid), or (c) by a recognized overnight delivery service
(with charges prepaid). Any such notice must be sent:
(i) if to any Purchaser or its nominee, to such Purchaser
or its nominee at the address specified for such communications
in Schedule A, or at such other address as such Purchaser or its
nominee shall have specified to the Issuers in writing,
(ii) if to any other holder of any Note, to such holder at
such address as such other holder shall have specified to the
Issuers in writing, or
(iii) if to any Issuer, at its address set forth at the
beginning hereof to the attention of Marc O'Casal, telecopier:
(973) 597-4797, or at such other address as such Issuer shall
have specified to the holder of each Note in writing.
A copy of any notices sent to any Purchasers and/or any holders of Notes shall
also be sent to Bingham McCutchen LLP, One State Street, Hartford, Connecticut
06103 to the attention of Daniel I. Papermaster, Esq., telecopier: (860)
240-2800. Notices under this Section 18 will be deemed given only when actually
received.
19. REPRODUCTION OF DOCUMENTS.
This Agreement and all documents relating thereto, including, without
limitation, (a) consents, waivers and modifications that may hereafter be
executed, (b) documents received by any Purchaser at the Closing (except the
Notes themselves), and (c) financial statements, certificates and other
information previously or hereafter furnished to the Purchasers, may be
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reproduced by the Purchasers by any photographic, photostatic, microfilm,
microcard, miniature photographic or other similar process and the Purchasers
may destroy any original document so reproduced. The Issuers agree and stipulate
that, to the extent permitted by applicable law, any such reproduction shall be
admissible in evidence as the original itself in any judicial or administrative
proceeding (whether or not the original is in existence and whether or not such
reproduction was made by such Purchaser in the regular course of business) and
any enlargement, facsimile or further reproduction of such reproduction shall
likewise be admissible in evidence. This Section 19 shall not prohibit any
Issuer or any other holder of Notes from contesting any such reproduction to the
same extent that it could contest the original, or from introducing evidence to
demonstrate the inaccuracy of any such reproduction.
20. CONFIDENTIAL INFORMATION.
For the purposes of this Section 20, "Confidential Information" means
information delivered to any Purchaser by or on behalf of the Company or any
Subsidiary in connection with the transactions contemplated by or otherwise
pursuant to this Agreement that is proprietary in nature and that was clearly
marked or labeled or otherwise adequately identified when received by such
Purchaser as being confidential information of the Company or such Subsidiary,
provided that such term does not include information that (a) was publicly known
or otherwise known to such Purchaser prior to the time of such disclosure, (b)
subsequently becomes publicly known through no act or omission by such Purchaser
or any person acting on its behalf, (c) otherwise becomes known to such
Purchaser other than through disclosure by any Issuer or any Subsidiary or by
any Person known by such Purchaser to be acting in breach of any duty of
confidentiality owed to any Issuer or any Subsidiary (d) constitutes financial
statements delivered to such Purchaser under Section 7.1 that are otherwise
publicly available. Each Purchaser will maintain the confidentiality of such
Confidential Information in accordance with procedures adopted by such Purchaser
in good faith to protect confidential information of third parties delivered to
such Purchaser, provided that such Purchaser may deliver or disclose
Confidential Information to (i) such Purchaser's directors, officers, employees,
agents, attorneys and affiliates, (to the extent such disclosure reasonably
relates to the administration of the investment represented by such Purchaser's
Notes), (ii) its financial advisors and other professional advisors who agree to
hold confidential the Confidential Information substantially in accordance with
the terms of this Section 20, (iii) any other holder of any Note, (iv) any
Institutional Investor to which such Purchaser sells or offers to sell such Note
or any part thereof or any participation therein (if such Person has agreed in
writing prior to its receipt of such Confidential Information to be bound by the
provisions of this Section 20), (v) any Person from which such Purchaser offers
to purchase any security of the Issuers (if such Person has agreed in writing
prior to its receipt of such Confidential Information to be bound by the
provisions of this Section 20), (vi)
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any federal or state regulatory authority having jurisdiction over such
Purchaser, (vii) the National Association of Insurance Commissioners or any
similar organization, or any nationally recognized rating agency that requires
access to information about such Purchaser's investment portfolio, (viii) any
other Person to which such delivery or disclosure may be necessary or
appropriate (w) to effect compliance with any law, rule, regulation or order
applicable to such Purchaser, (x) in response to any subpoena or other legal
process, (y) in connection with any litigation to which such Purchaser is a
party or (z) if an Event of Default has occurred and is continuing, to the
extent such Purchaser may reasonably determine such delivery and disclosure to
be necessary or appropriate in the enforcement or for the protection of its
rights and remedies under its Notes and this Agreement, or (ix) any and all
Persons, without limitation, to the extent any such Confidential Information
pertains to the United States federal tax treatment and United States federal
tax structure of the transaction contemplated by this Agreement or constitutes
materials of any kind (including opinions or other United States federal tax
analyses) that are provided to the holders of Notes relating to such United
States federal tax treatment and United States federal tax structure. The
foregoing clause (ix) is intended to cause the transaction contemplated hereby
not to be treated as having been offered under conditions of confidentiality for
purposes of Sections 1.6011-4(b)(3) and 301.6111-2(a)(2)(ii) (or any successor
provisions) of the United States Treasury Regulations issued under the Code and
shall be construed in a manner consistent with such purpose. Each holder of a
Note, by its acceptance of a Note, will be deemed to have agreed to be bound by
and to be entitled to the benefits of this Section 20 as though it were a party
to this Agreement. On reasonable request by the Issuers in connection with the
delivery to any holder of a Note of information required to be delivered to such
holder under this Agreement or requested by such holder (other than a holder
that is a party to this Agreement or its nominee), such holder will enter into
an agreement with the Issuers embodying the provisions of this Section 20.
21. SUBSTITUTION OF PURCHASER.
Each Purchaser shall have the right to substitute any one of its
Affiliates as the purchaser of the Notes that such Purchaser has agreed to
purchase hereunder, by written notice to the Issuers, which notice shall be
signed by both such Purchaser and such Affiliate, shall contain such Affiliate's
agreement to be bound by this Agreement and shall contain a confirmation by such
Affiliate of the accuracy with respect to it of the representations set forth in
Section 6. Upon receipt of such notice, wherever the word "Purchaser" is used in
this Agreement (other than in this Section 21), such word shall be deemed to
refer to such Affiliate in lieu of such original Purchaser. In the event that
such Affiliate is so substituted as a purchaser hereunder and such Affiliate
thereafter transfers to such Purchaser all of the Notes then held by such
Affiliate, upon receipt by the Issuers of notice of such transfer, wherever the
word "Purchaser" is used in this Agreement (other than in this Section 21),
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such word shall no longer be deemed to refer to such Affiliate, but shall refer
to such Purchaser, and such Purchaser shall have all the rights of an original
holder of the Notes under this Agreement.
22. MISCELLANEOUS.
22.1. Successors and Assigns.
All covenants and other agreements contained in this Agreement by or on
behalf of any of the parties hereto bind and inure to the benefit of their
respective successors and assigns (including, without limitation, any subsequent
holder of a Note) whether so expressed or not.
22.2. Payments Due on Non-Business Days.
Anything in this Agreement or the Notes to the contrary
notwithstanding, any payment of principal of or Make-Whole Amount or Modified
Make-Whole Amount or interest on any Note that is due on a date other than a
Business Day shall be made on the next succeeding Business Day without including
the additional days elapsed in the computation of the interest payable on such
next succeeding Business Day.
22.3. Severability.
Any provision of this Agreement that is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall (to the full extent permitted by law) not invalidate or
render unenforceable such provision in any other jurisdiction.
22.4. Construction.
Each covenant contained herein shall be construed (absent express
provision to the contrary) as being independent of each other covenant contained
herein, so that compliance with any one covenant shall not (absent such an
express contrary provision) be deemed to excuse compliance with any other
covenant. Where any provision herein refers to action to be taken by any Person,
or which such Person is prohibited from taking, such provision shall be
applicable whether such action is taken directly or indirectly by such Person.
22.5. Counterparts.
This Agreement may be executed in any number of counterparts, each of
which shall be an original but all of which together shall constitute one
instrument. Each counterpart may consist of a number of copies hereof, each
signed by less than all, but together signed by all, of the parties hereto.
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22.6. Governing Law.
This Agreement shall be construed and enforced in accordance with, and
the rights of the parties shall be governed by, the law of the State of New York
excluding choice-of-law principles of the law of such State that would require
the application of the laws of a jurisdiction other than such State.
[Remainder of page intentionally left blank; next page is signature page.]
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If each Purchaser is in agreement with the foregoing, please sign the form of
agreement on the accompanying counterpart of this Agreement and return it to the
Issuers, whereupon the foregoing shall become a binding agreement between the
Purchasers and the Issuers.
Very truly yours,
CURTISS-WRIGHT CORPORATION
By
-----------------------------------
Name:
Title:
CURTISS-WRIGHT CONTROLS, INC.
By
-----------------------------------
Name:
Title:
METAL IMPROVEMENT COMPANY, INC.
By
-----------------------------------
Name:
Title:
CURTISS-WRIGHT FLOW CONTROL CORPORATION
By
-----------------------------------
Name:
Title:
CURTISS-WRIGHT FLOW CONTROL SERVICE CORPORATION
By
-----------------------------------
Name:
Title:
The foregoing is hereby agreed to as of the date thereof.
[ADD PURCHASER SIGNATURE BLOCKS]
-48-
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
=====================================================================================================================
Purchaser Name
- ---------------------------------------------------------------------------------------------------------------------
Name in Which Note is Registered
- ---------------------------------------------------------------------------------------------------------------------
5.13% Series A Senior Note Registration RA-[__]; $[__________]
Number; Principal Amount
5.74% Series B Senior Note Registration RB-[__]; $[__________]
Number; Principal Amount
- ---------------------------------------------------------------------------------------------------------------------
Payment on Account of Note
Method Federal Funds Wire Transfer
Account Information
Ref: (See "Accompanying Information" below)
- ---------------------------------------------------------------------------------------------------------------------
Accompanying Information Name of Issuers: Curtiss-Wright Corporation
Curtiss-Wright Controls, Inc.
Metal Improvement Company, Inc.
Curtiss-Wright Flow Control
Corporation
Curtiss-Wright Flow Control
Service Corporation
Description of Security: 5.13% Series A Senior Guaranteed Notes
due September 25, 2010
PPN: 23157# AA 7
Description of Security: 5.74% Series B Senior Guaranteed Notes
due September 25, 2013
PPN: 23157# AB 5
Due date and application (as among principal, make
whole and interest) of the payment being made:
- ---------------------------------------------------------------------------------------------------------------------
Address/Fax for Notices Related to Payments
- ---------------------------------------------------------------------------------------------------------------------
Address/Fax for All Other Notices
Schedule A-1
- ---------------------------------------------------------------------------------------------------------------------
Signature Block
- ---------------------------------------------------------------------------------------------------------------------
Instructions re: Delivery of Notes
- ---------------------------------------------------------------------------------------------------------------------
Tax Identification Number
=====================================================================================================================
Schedule A-2
SCHEDULE B
DEFINED TERMS
As used herein, the following terms have the respective meanings set
forth below or set forth in the Section hereof following such term:
"Affiliate" means, at any time, and with respect to any Person, any
other Person that at such time directly or indirectly through one or more
intermediaries Controls, or is Controlled by, or is under common Control with,
such first Person. As used in this definition, "Control" means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of a Person, whether through the ownership of voting
securities, by contract or otherwise. Unless the context otherwise clearly
requires, any reference to an "Affiliate" is a reference to an Affiliate of the
Company.
"Agreement" is defined in Section 17.3.
"Asset Disposition" means any Transfer except:
(a) any
(i) Transfer from a Subsidiary to the Company or a
Wholly-Owned Subsidiary;
(ii) Transfer from the Company to a Wholly-Owned Subsidiary;
and
(iii) Transfer from the Company or a Wholly-Owned Subsidiary
to a Subsidiary (other than a Wholly-Owned Subsidiary) or from a
Subsidiary to another Subsidiary, which in either case is for Fair
Market Value;
so long as immediately before and immediately after the consummation of
any such Transfer and after giving effect thereto, no Default or Event
of Default exists; and
(b) any Transfer made in the ordinary course of business and involving
only property that is either (i) inventory held for sale or (ii) equipment,
fixtures, supplies or materials that are obsolete or inoperative.
"Business Day" means any day other than a Saturday, a Sunday or a day
on which commercial banks in New York City are required or authorized to be
closed.
Schedule B-1
"Capital Lease" means, at any time, a lease with respect to which the
lessee is required concurrently to recognize the acquisition of an asset and the
incurrence of a liability in accordance with GAAP.
"Capital Stock" means any class of capital stock, share capital or
similar equity interest of a Person.
"Change in Control Prepayment Date" is defined in Section 8.3(b).
"Change in Control" is defined in Section 8.3(f).
"Closing" is defined in Section 3.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, and the rules and regulations promulgated thereunder from time to time.
"Company" is defined in the introductory paragraph of this Agreement.
"Confidential Information" is defined in Section 20.
"Consolidated Debt" means, as of any date of determination, the total
of all Debt of the Company and its Subsidiaries outstanding on such date, after
eliminating all offsetting debits and credits between the Company and its
Subsidiaries and all other items required to be eliminated in the course of
preparation of consolidated financial statements of the Company and its
Subsidiaries in accordance with GAAP.
"Consolidated Net Income" means, for any period, the net income (or
loss) of the Company and its Subsidiaries for such period (taken as a cumulative
whole), as determined in accordance with GAAP, after eliminating all offsetting
debits and credits between the Company and its Subsidiaries and all other items
required to be eliminated in the course of the preparation of consolidated
financial statements of the Company and its Subsidiaries in accordance with
GAAP.
"Consolidated Net Worth" means, as of any date, the sum of (a) total
stockholders' equity of the Company and its Subsidiaries as of such date,
determined on a consolidated basis in accordance with GAAP, minus (b) to the
extent included in clause (a), all amounts properly attributable to minority
interests, if any, in the stock and surplus of Subsidiaries, minus (c) any
increase in the amount of Consolidated Net Worth attributable to a write-up in
the book value of any asset on the books of the Company and its Subsidiaries
resulting from a revaluation thereof subsequent to June 30, 2003, minus (d) the
amounts, if any, at which any shares of capital stock of the Company or
Schedule B-2
any Subsidiary appear as an asset on the balance sheet from which Consolidated
Net Worth is determined for the purposes of this definition.
"Consolidated Total Assets" means, as of any date, the total assets of
the Company and its Subsidiaries which would be shown as assets on a
consolidated balance sheet of the Company and its Subsidiaries as of such date
prepared in accordance with GAAP, after eliminating all amounts properly
attributable to minority interests, if any, in the stock and surplus of
Subsidiaries.
"Consolidated Total Capitalization" means, as of any date, the sum of
Consolidated Net Worth and Consolidated Debt.
"Control Event" is defined in Section 8.3(g).
"C-W Controls" is defined in the introductory paragraph of this
Agreement.
"C-W Flow" is defined in the introductory paragraph of this Agreement.
"C-W Flow Control Service" is defined in the introductory paragraph of
this Agreement.
"Debt" means, with respect to any Person, at any time, without
duplication,
(a) its liabilities for borrowed money and its redemption obligations
in respect of mandatorily redeemable Preferred Stock to the extent required
to be paid with cash or other consideration (other than shares of Capital
Stock);
(b) its liabilities for the deferred purchase price of property
acquired by such Person (excluding accounts payable arising in the ordinary
course of business but including all liabilities created or arising under
any conditional sale or other title retention agreement with respect to any
such property);
(c) all liabilities appearing on its balance sheet in accordance with
GAAP in respect of Capital Leases;
(d) all liabilities for borrowed money secured by any Lien with respect
to any property owned by such Person (whether or not it has assumed or
otherwise become liable for such liabilities); and
(e) any Guaranty of such Person with respect to liabilities of a type
described in any of clauses (a) through (d) hereof.
Schedule B-3
Debt of any Person shall include all obligations of such Person of the
character described in clauses (a) through (e) to the extent such Person remains
legally liable in respect thereof notwithstanding that any such obligation is
deemed to be extinguished under GAAP.
"Debt Prepayment Application" means, with respect to any Transfer of
any property, the application by any Obligor or any Subsidiary, as the case may
be, of cash in an amount equal to the Net Proceeds with respect to such Transfer
to pay Senior Debt (other than (a) Senior Debt owing to the Company or any of
its Subsidiaries or any Affiliate and (b) Senior Debt in respect of any
revolving credit or similar facility providing any Obligor or any such
Subsidiary with the right to obtain loans or other extensions of credit from
time to time, unless in connection with such payment of Senior Debt the
availability of credit under such credit facility is permanently reduced by an
amount not less than the amount of such proceeds applied to the payment of such
Senior Debt), provided that in the course of making such application the
Obligors shall offer to prepay each outstanding Note, in accordance with Section
8.4, in a principal amount which, when added to the Make-Whole Amount applicable
thereto, equals the Ratable Portion of the holder of such Note in respect of
such Transfer. If any holder of a Note fails to accept such offer of prepayment,
then, for purposes of the preceding sentence only, the Obligors nevertheless
will be deemed to have paid Senior Debt in an amount equal to the Ratable
Portion of the holder of such Note in respect of such Transfer.
"Debt Prepayment Transfer" is defined in Section 8.4(a).
"Default" means an event or condition the occurrence or existence of
which would, with the lapse of time or the giving of notice or both, become an
Event of Default.
"Default Rate" means that rate of interest, in respect of a Series of
Notes, that is the greater of (a) 2% per annum above the rate of interest stated
in clause (a) of the first paragraph of the Notes of such Series or (b) 2% over
the rate of interest publicly announced by The Bank of New York in New York, New
York as its "base" or "prime" rate.
"Disposition Value" means, at any time, with respect to any property
(a) in the case of property that does not constitute Subsidiary Stock,
the book value thereof, valued at the time of such disposition in good
faith by the Company, and
(b) in the case of property that constitutes Subsidiary Stock, an
amount equal to that percentage of book value of the assets of the
Subsidiary that issued such stock as is equal to the percentage that the
book value of such Subsidiary Stock represents of the book value of all of
Schedule B-4
the outstanding Capital Stock of such Subsidiary (assuming, in making such
calculations, that all Securities convertible into such Capital Stock are
so converted and giving full effect to all transactions that would occur or
be required in connection with such conversion) determined at the time of
the disposition thereof in good faith by the Company.
"Environmental Laws" means any and all Federal, state, local, and
foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or
governmental restrictions relating to pollution and the protection of the
environment or the release of any materials into the environment, including but
not limited to those related to hazardous substances or wastes, air emissions
and discharges to waste or public systems.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the rules and regulations promulgated thereunder
from time to time in effect.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that is treated as a single employer together with any Issuer
under section 414 of the Code.
"Event of Default" is defined in Section 11.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Fair Market Value" means, at any date of determination and with
respect to any property, the sale value of such property that would be realized
in an arm's-length sale at such time between an informed and willing buyer and
an informed and willing seller (neither being under a compulsion to buy or
sell).
"Financing Documents" means the Notes, this Agreement and the
Subsidiary Guarantee, as each may be amended, restated or otherwise modified
from time to time.
"GAAP" means generally accepted accounting principles as in effect from
time to time in the United States of America.
"Governmental Authority" means
(a) the government of
(i) the United States of America or any State or
other political subdivision thereof, or
Schedule B-5
(ii) any jurisdiction in which the Company or any
Subsidiary conducts all or any part of its business, or which
asserts jurisdiction over any properties of the Company or any
Subsidiary, or
(b) any entity exercising executive, legislative, judicial, regulatory
or administrative functions of, or pertaining to, any such government.
"Guaranty" means, with respect to any Person, any obligation (except
the endorsement in the ordinary course of business of negotiable instruments for
deposit or collection) of such Person guaranteeing or in effect guaranteeing any
indebtedness, dividend or other obligation of any other Person in any manner,
whether directly or indirectly, including (without limitation) obligations
incurred through an agreement, contingent or otherwise, by such Person:
(a) to purchase such indebtedness or obligation or any property
constituting security therefor;
(b) to advance or supply funds (i) for the purchase or payment of such
indebtedness or obligation, or (ii) to maintain any working capital or
other balance sheet condition or any income statement condition of any
other Person or otherwise to advance or make available funds for the
purchase or payment of such indebtedness or obligation;
(c) to lease properties or to purchase properties or services primarily
for the purpose of assuring the owner of such indebtedness or obligation of
the ability of any other Person to make payment of the indebtedness or
obligation; or
(d) otherwise to assure the owner of such indebtedness or obligation
against loss in respect thereof.
In any computation of the indebtedness or other liabilities of the
obligor under any Guaranty, the indebtedness or other obligations that are the
subject of such Guaranty shall be assumed to be direct obligations of such
obligor.
"holder" means, with respect to any Note, the Person in whose name such
Note is registered in the register maintained by the Company pursuant to Section
13.1.
"INHAM Exemption" is defined in Section 6.2(e).
"Institutional Investor" means (a) any original purchaser of a Note,
(b) any holder of a Note holding more than 5% of the aggregate principal amount
Schedule B-6
of the Notes then outstanding, and (c) any institutional accredited investor as
defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities
Act and any investment fund having assets of at least $100,000,000 that is in
the business of investing in securities issued by other Persons, regardless of
legal form.
"Issuers" is defined in the introductory paragraph of this Agreement.
"knowledge" when used with respect to any Issuer or any Responsible
Officer to qualify a representation or warranty of such Issuer or such
Responsible Officer, shall be deemed to be the actual knowledge of such
Responsible Officer.
"Lien" means, with respect to any Person, any mortgage, lien, pledge,
charge, security interest or other encumbrance, or any interest or title of any
vendor, lessor, lender or other secured party to or of such Person under any
conditional sale or other title retention agreement or Capital Lease, upon or
with respect to any property or asset of such Person (including in the case of
stock, stockholder agreements, voting trust agreements and all similar
arrangements).
"Make-Whole Amount" is defined in Section 8.8.
"Material" means material in relation to the business, operations,
affairs, financial condition, assets, or properties of the Company and its
Subsidiaries, taken as a whole.
"Material Adverse Effect" means a material adverse effect on (a) the
business, operations, affairs, financial condition, assets or properties and
results of operations of the Company and its Subsidiaries, taken as a whole, (b)
the ability of any Issuer to perform its obligations under this Agreement and
the Notes, or of any Material Subsidiary to perform its obligations under the
Subsidiary Guarantee or (c) the validity or enforceability of this Agreement,
the Notes, or the Subsidiary Guarantee.
"Material Subsidiary" means, as of any date, any Subsidiary which
(together with its Subsidiaries) (a) accounts for more than 5% of Consolidated
Total Assets as of such date or (b) accounted for more than 5% of the
consolidated revenues of the Company and its Subsidiaries for the period of the
four consecutive fiscal quarters of the Company ending on or immediately prior
to such date.
"Memorandum" is defined in Section 5.3.
"Metal" is defined in the introductory paragraph of this Agreement.
"Modified Make-Whole Amount" is defined in Section 8.8.
Schedule B-7
"Multiemployer Plan" means any Plan that is a "multiemployer plan" (as
such term is defined in section 4001(a)(3) of ERISA).
"Net Proceeds" means , with respect to any Transfer of any property by
any Person, an amount equal to the difference of
(a) the aggregate amount of the consideration (valued at the
Fair Market Value of such consideration at the time of the consummation of such
Transfer) received by such Person in respect of such Transfer, minus
(b) all ordinary and reasonable out-of-pocket costs and
expenses actually incurred by such Person in connection with such Transfer.
"Notes" is defined in Section 1.
"Obligors" means, collectively, the Issuers and the Subsidiary
Guarantors.
"Officer's Certificate" means a certificate of a Senior Financial
Officer or of any other officer of the Company or any Subsidiary, as the context
may require, whose responsibilities extend to the subject matter of such
certificate.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA or any successor thereto.
"Person" means an individual, partnership, corporation, limited
liability company, association, joint venture, trust, unincorporated
organization, or a government or agency or political subdivision thereof.
"Plan" means an "employee benefit plan" (as defined in section 3(3) of
ERISA) that is or, within the preceding five years, has been established or
maintained, or to which contributions are or, within the preceding five years,
have been made or required to be made, by any Issuer or any ERISA Affiliate or
with respect to which such Issuer or any ERISA Affiliate may have any liability.
"Preferred Stock" means any class of capital stock of a corporation
that is preferred over any other class of capital stock of such corporation as
to the payment of dividends or the payment of any amount upon liquidation or
dissolution of such corporation.
"Priority Debt" means, as of any date, (without duplication) the sum of
(a) all outstanding Debt of any Subsidiary (other than an Issuer or a Subsidiary
Guarantor, or Debt of any Subsidiary owing solely to the Company or any
Wholly-Owned Subsidiary) and (b) all Debt of any Issuer or any Subsidiary
Schedule B-8
Guarantor secured by any Lien (other than Liens under clauses (a) through (e)
and clauses (g) through (h) of Section 10.7).
"property" or "properties" means, unless otherwise specifically
limited, real or personal property of any kind, tangible or intangible, choate
or inchoate.
"Property Reinvestment Application" means, with respect to any Transfer
of property, the application of an amount equal to the Net Proceeds with respect
to such Transfer to the acquisition by such Person of operating assets of such
Person of a generally similar nature (excluding, for the avoidance of doubt,
cash and cash equivalents), and of at least equivalent Fair Market Value, to the
property so Transferred, to be used in the principal business of such Person as
conducted immediately prior to such Transfer or in a business generally related
to such principal business.
"PTE" is defined in Section 6.2(a).
"Purchasers" is defined in the introductory paragraph of this
Agreement.
"QPAM Exemption" means Prohibited Transaction Class Exemption 84-14
issued by the United States Department of Labor.
"Ratable Portion" means, in respect of any holder of any Note and any
Transfer contemplated by the definition of Debt Prepayment Application, an
amount equal to the product of
(a) the Net Proceeds being offered to be applied to the payment of
Senior Debt, multiplied by
(b) a fraction the numerator of which is the outstanding principal
amount of such Note and the denominator of which is the aggregate
outstanding principal amount of Senior Debt at the time of such Transfer
determined on a consolidated basis in accordance with GAAP.
"Required Holders" means, at any time, the holders of at least a
majority in principal amount of the Notes (without regard to Series) at the time
outstanding (exclusive of Notes then owned by the Company or any of its
Affiliates).
"Responsible Officer" means any Senior Financial Officer and any other
officer of any Issuer or any Subsidiary Guarantor with responsibility for the
administration of the relevant portion of this Agreement.
"Securities Act" means the Securities Act of 1933, as amended from time
to time.
Schedule B-9
"Senior Debt" -- means the Notes and any Debt of the Company or its
Subsidiaries that by its terms is not in any manner subordinated in right of
payment to any other unsecured Debt of the Company or any Subsidiary.
"Senior Financial Officer" means the chief financial officer, principal
accounting officer, treasurer or controller of the Company or any Subsidiary, as
the context may require.
"Series" means any series of Notes issued under this Agreement.
"Series A Notes" is defined in Section 1.
"Series B Notes" is defined in Section 1.
"Source" is defined in Section 6.2.
"Subsidiary" means, as to any Person, any corporation, association or
other business entity in which such Person or one or more of its Subsidiaries or
such Person and one or more of its Subsidiaries owns sufficient equity or voting
interests to enable it or them (as a group) ordinarily, in the absence of
contingencies, to elect a majority of the directors (or Persons performing
similar functions) of such entity, and any partnership or joint venture if more
than a 50% interest in the profits or capital thereof is owned by such Person or
one or more of its Subsidiaries or such Person and one or more of its
Subsidiaries (unless such partnership can and does ordinarily take major
business actions without the prior approval of such Person or one or more of its
Subsidiaries). Unless the context otherwise clearly requires, any reference to a
"Subsidiary" is a reference to a Subsidiary of the Company.
"Subsidiary Guarantee" is defined in Section 4.10.
"Subsidiary Guarantor" means any Subsidiary that has executed and
delivered the Subsidiary Guarantee or the accession agreement thereto pursuant
to the provisions of this Agreement and the Subsidiary Guarantee.
"Subsidiary Stock" means, with respect to any Person, the Capital Stock
(or any options or warrants to purchase stock, shares or other Securities
exchangeable for or convertible into stock or shares) of any Subsidiary of such
Person.
"Successor Corporation" is defined in Section 10.2.
"Transfer" means, with respect to any Person, any transaction in which
such Person sells, conveys, transfers or leases (as lessor) any of its property,
including, without limitation, any transfer or issuance of any Subsidiary Stock.
Schedule B-10
For purposes of determining the application of the Net Proceeds in respect of
any Transfer, the Company may designate any Transfer as one or more separate
Transfers each yielding separate Net Proceeds. In any such case, (a) the
Disposition Value of any property subject to each such separate Transfer and (b)
the amount of Consolidated Total Assets attributable to any property subject to
each such separate Transfer shall be determined by rateably allocating the
aggregate Disposition Value of, and the aggregate Consolidated Total Assets
attributable to, all property subject to all such separate Transfers to each
such separate Transfer on a proportionate basis.
"Transfer Prepayment Date" is defined in Section 8.4(a).
"Transfer Prepayment Offer" is defined in Section 8.4(a).
"USA Patriot Act" means the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA
PATRIOT ACT) Act of 2001 of the United States of America.
"Voting Stock" means, with respect to any Person, capital stock (or
other equity interests) of any class or classes of a corporation, an association
or another business entity the holders of which are ordinarily, in the absence
of contingencies, entitled to vote in the election of corporate directors (or
individuals performing similar functions) of such Person or which permit the
holders thereof to control the management of such Person, including general
partnership interests in a partnership and membership interests in a limited
liability company.
"Wholly-Owned Subsidiary" means, at any time, any Subsidiary one
hundred percent (100%) of all of the equity interests (except directors'
qualifying shares) and voting interests of which are owned by any one or more of
the Company and the Company's other Wholly-Owned Subsidiaries at such time.
Schedule B-11
EXHIBIT 1(a)
FORM OF 5.13% SERIES A SENIOR GUARANTEED NOTE
DUE SEPTEMBER 25, 2010
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT") OR ANY APPLICABLE SECURITIES LAWS OF THE STATES OF THE
UNITED STATES, AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM.
CURTISS-WRIGHT CORPORATION
CURTISS-WRIGHT CONTROLS, INC.
METAL IMPROVEMENT COMPANY, INC.
CURTISS-WRIGHT FLOW CONTROL CORPORATION
CURTISS-WRIGHT FLOW CONTROL SERVICE CORPORATION
5.13% SERIES A SENIOR GUARANTEED NOTES DUE SEPTEMBER 25, 2010
No. RA-[____] [Date]
$[______] PPN 23157# AA 7
FOR VALUE RECEIVED, each of the undersigned, CURTISS-WRIGHT
CORPORATION, a Delaware corporation (together with its successors and assigns,
the "Company"), CURTISS-WRIGHT CONTROLS, INC., a Delaware corporation (together
with its successors and assigns, "C-W Controls"), METAL IMPROVEMENT COMPANY,
INC., a Delaware corporation (together with its successors and assigns,
"Metal"), CURTISS-WRIGHT FLOW CONTROL CORPORATION, a New York corporation
(together with its successors and assigns, "C-W Flow") and CURTISS-WRIGHT FLOW
CONTROL SERVICE CORPORATION, a Delaware corporation (together with its
successors and assigns "C-W Flow Control Service" and together with the Company,
C-W Controls, Metal and C-W Flow, individually, an "Issuer" and collectively,
the "Issuers"), hereby jointly and severally promises to pay to
[_______________________] or registered assigns, the principal sum of
[____________________] DOLLARS [($____________)] on September 25, 2010 with
interest (computed on the basis of a 360-day year of twelve 30-day months) (a)
on the unpaid balance thereof at the rate of 5.13% per annum from the date
hereof, payable semiannually, on the 25th day of March and September in each
year, commencing with the March 25 or September 25 next succeeding the date
hereof, until the principal hereof shall have become due and payable, and (b) to
the extent permitted by law on any overdue payment (including any overdue
prepayment) of principal, any overdue payment of interest and any overdue
payment of any Make-Whole Amount or Modified Make-Whole Amount (each as defined
in the Note Purchase Agreement referred to below), payable
Exhibit 1(a)-1
semiannually as aforesaid (or, at the option of the registered holder hereof, on
demand), at a rate per annum from time to time equal to the greater of (i) 7.13%
or (ii) 2% over the rate of interest publicly announced by The Bank of New York
from time to time in New York, New York as its "base" or "prime" rate.
Payments of principal of, interest on and any Make-Whole Amount or
Modified Make-Whole Amount with respect to this Note are to be made in lawful
money of the United States of America at the address shown in the register
maintained by the Company for such purpose or at such other place as the Issuers
shall have designated by written notice to the holder of this Note as provided
in the Note Purchase Agreement referred to below.
This Note is one of a series of Series A Senior Notes (herein called
the "Notes") issued pursuant to that certain Note Purchase Agreement, dated as
of September 25, 2003 (as from time to time amended, the "Note Purchase
Agreement"), between the Issuers and the respective purchasers named therein and
is entitled to the benefits thereof. Each holder of this Note will be deemed, by
its acceptance hereof, (i) to have agreed to the confidentiality provisions set
forth in Section 20 of the Note Purchase Agreement and (ii) to have made the
representation set forth in Section 6.2 of the Note Purchase Agreement.
This Note is a registered Note and, as provided in the Note Purchase
Agreement, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Issuers may treat the person in whose name this
Note is registered as the owner hereof for the purpose of receiving payment and
for all other purposes, and the Issuers will not be affected by any notice to
the contrary.
This Note is subject to optional prepayment, in whole or from time to
time in part, at the times and on the terms specified in the Note Purchase
Agreement, but not otherwise.
If an Event of Default, as defined in the Note Purchase Agreement,
occurs and is continuing, the principal of this Note may be declared or
otherwise become due and payable in the manner, at the price (including any
applicable Make-Whole Amount or Modified Make-Whole Amount) and with the effect
provided in the Note Purchase Agreement.
THIS NOTE SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE
RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE OF NEW YORK
EXCLUDING CHOICE-OF-LAW PRINCIPLES OF THE LAW OF SUCH STATE THAT WOULD
Exhibit 1(a)-2
REQUIRE THE APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN SUCH STATE.
CURTISS-WRIGHT CORPORATION
By_______________________________
Name:
Title:
CURTISS-WRIGHT CONTROLS, INC.
By_______________________________
Name:
Title:
METAL IMPROVEMENT COMPANY, INC.
By_______________________________
Name:
Title:
CURTISS-WRIGHT FLOW CONTROL CORPORATION
By_______________________________
Name:
Title:
CURTISS-WRIGHT FLOW CONTROL SERVICE
CORPORATION
By_______________________________
Name:
Title:
Exhibit 1(a)-3
EXHIBIT 1(b)
FORM OF 5.74% SERIES B SENIOR GUARANTEED NOTE
DUE SEPTEMBER 25, 2013
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT") OR ANY APPLICABLE SECURITIES LAWS OF THE STATES OF THE
UNITED STATES, AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM.
CURTISS-WRIGHT CORPORATION
CURTISS-WRIGHT CONTROLS, INC.
METAL IMPROVEMENT COMPANY, INC.
CURTISS-WRIGHT FLOW CONTROL CORPORATION
CURTISS-WRIGHT FLOW CONTROL SERVICE CORPORATION
5.74% SERIES B SENIOR GUARANTEED NOTES DUE SEPTEMBER 25, 2013
No. RB-[____] [Date]
$[______] PPN 23157# AB 5
FOR VALUE RECEIVED, each of the undersigned, CURTISS-WRIGHT
CORPORATION, a Delaware corporation (together with its successors and assigns,
the "Company"), CURTISS-WRIGHT CONTROLS, INC., a Delaware corporation (together
with its successors and assigns, "C-W Controls"), METAL IMPROVEMENT COMPANY,
INC., a Delaware corporation (together with its successors and assigns,
"Metal"), CURTISS-WRIGHT FLOW CONTROL CORPORATION, a New York corporation
(together with its successors and assigns, "C-W Flow") and CURTISS-WRIGHT FLOW
CONTROL SERVICE CORPORATION a Delaware corporation (together with its successors
and assigns, "C-W Flow Control Service" and together with the Company, C-W
Controls, Metal and C-W Flow, individually, an "Issuer" and collectively, the
"Issuers"), hereby jointly and severally promises to pay to
[_______________________] or registered assigns, the principal sum of
[____________________] DOLLARS [($____________)] on September 25, 2013 with
interest (computed on the basis of a 360-day year of twelve 30-day months) (a)
on the unpaid balance thereof at the rate of 5.74% per annum from the date
hereof, payable semiannually, on the 25th day of March and September in each
year, commencing with the March 25 or September 25 next succeeding the date
hereof, until the principal hereof shall have become due and payable, and (b) to
the extent permitted by law on any overdue payment (including any overdue
prepayment) of principal, any overdue payment of interest and any overdue
payment of any Make-Whole Amount or Modified Make-Whole Amount
Exhibit 4.10-1
(each as defined in the Note Purchase Agreement referred to below), payable
semiannually as aforesaid (or, at the option of the registered holder hereof, on
demand), at a rate per annum from time to time equal to the greater of (i) 7.74%
or (ii) 2% over the rate of interest publicly announced by The Bank of New York
from time to time in New York, New York as its "base" or "prime" rate.
Payments of principal of, interest on and any Make-Whole Amount or
Modified Make-Whole Amount with respect to this Note are to be made in lawful
money of the United States of America at the address shown in the register
maintained by the Company for such purpose or at such other place as the Issuers
shall have designated by written notice to the holder of this Note as provided
in the Note Purchase Agreement referred to below.
This Note is one of a series of Series B Senior Notes (herein called
the "Notes") issued pursuant to that certain Note Purchase Agreement, dated as
of September 25, 2003 (as from time to time amended, the "Note Purchase
Agreement"), between the Issuers and the respective purchasers named therein and
is entitled to the benefits thereof. Each holder of this Note will be deemed, by
its acceptance hereof, (i) to have agreed to the confidentiality provisions set
forth in Section 20 of the Note Purchase Agreement and (ii) to have made the
representation set forth in Section 6.2 of the Note Purchase Agreement.
This Note is a registered Note and, as provided in the Note Purchase
Agreement, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Issuers may treat the person in whose name this
Note is registered as the owner hereof for the purpose of receiving payment and
for all other purposes, and the Issuers will not be affected by any notice to
the contrary.
This Note is subject to optional prepayment, in whole or from time to
time in part, at the times and on the terms specified in the Note Purchase
Agreement, but not otherwise.
If an Event of Default, as defined in the Note Purchase Agreement,
occurs and is continuing, the principal of this Note may be declared or
otherwise become due and payable in the manner, at the price (including any
applicable Make-Whole Amount or Modified Make-Whole Amount) and with the effect
provided in the Note Purchase Agreement.
THIS NOTE SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE
RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE OF NEW YORK
EXCLUDING
Exhibit 4.10-2
CHOICE-OF-LAW PRINCIPLES OF THE LAW OF SUCH STATE THAT WOULD REQUIRE
THE APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN SUCH STATE.
CURTISS-WRIGHT CORPORATION
By_________________________________________
Name:
Title:
CURTISS-WRIGHT CONTROLS, INC.
By_________________________________________
Name:
Title:
METAL IMPROVEMENT COMPANY, INC.
By_________________________________________
Name:
Title:
CURTISS-WRIGHT FLOW CONTROL CORPORATION
By_________________________________________
Name:
Title:
CURTISS-WRIGHT FLOW CONTROL SERVICE
CORPORATION
By_________________________________________
Name:
Title:
Exhibit 4.10-3