EXHIBIT 99.5
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SUNBELT CHLOR ALKALI PARTNERSHIP
$97,500,000
Guaranteed Secured Senior Notes due 2017
Series G
and
$97,500,000
Guaranteed Secured Senior Notes due 2017
Series 0
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NOTE PURCHASE AGREEMENT
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Dated December 22, 1997
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TABLE OF CONTENTS
Page
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Section 1. Authorization of Notes ............................................ 1
Section 2. Sale and Purchase of Notes ........................................ 1
Section 3. Closing ........................................................... 2
Section 4. Conditions to Closing ............................................. 2
Section 4.1. Representations and Warranties ............................. 2
Section 4.2. Performance; No Default .................................... 3
Section 4.3. Compliance Certificates .................................... 3
Section 4.4. Opinions of Counsel ........................................ 3
Section 4.5. Purchase Permitted by Applicable Law, etc. ................. 3
Section 4.6. Sale of Other Notes ........................................ 4
Section 4.7. Private Placement Number ................................... 4
Section 4.8. Changes in Partnership Structure ........................... 4
Section 4.9. Proceedings and Documents .................................. 4
Section 4.10. Delivery of Other Related Documents and Search Results ..... 4
Section 4.11. Payment of Special Counsel Fees ............................ 5
Section 4.12. Subordination .............................................. 5
Section 4.13. Real Estate Lease Agreement ................................ 5
Section 5. Representations and Warranties of the Issuer ...................... 6
Section 5.1. Organization; Power and Authority .......................... 6
Section 5.2. Authorization, etc. ........................................ 6
Section 5.3. Disclosure ................................................. 6
Section 5.4. Subsidiaries ............................................... 7
Section 5.5. Projections and Pro Forma Information ...................... 7
Section 5.6. Compliance with Laws, Other Instruments, etc. .............. 7
Section 5.7. Governmental Authorizations, etc. .......................... 7
Section 5.8. Litigation; Observance of Agreements, Statutes and Orders .. 8
Section 5.9. Taxes ...................................................... 8
Section 5.10. Title to Property; Leases .................................. 8
Section 5.11. Licenses, Permits, etc. .................................... 9
Section 5.12. ERISA ...................................................... 9
Section 5.13. Private Offering by the Issuer ............................. 9
Section 5.14. Existing Indebtedness; Future Liens ....................... 10
Section 5.15. Foreign Assets Control Regulations, etc. .................. 10
Section 5.16. Status Under Certain Statutes ............................. 10
Section 5.17. Environmental Matters ..................................... 10
Section 6. Representations of the Purchaser ................................. 11
Section 6.1. Purchase for Investment ................................... 11
Section 6.2. Source of Funds ........................................... 11
Section 6.3. Limited Recourse .......................................... 13
Section 7. Information as to the Issuer ..................................... 13
Section 7.1. Financial and Business Information ........................ 13
Section 7.2. Officer's Certificate ..................................... 16
Section 7.3. Inspection ................................................ 16
Section 8. Prepayment of the Notes .......................................... 17
Section 8.1. Required Payments ......................................... 17
Section 8.2. Optional Prepayments with Make-Whole Amount;
Purchases by Guarantors ................................... 17
Section 8.3. Allocation of Partial Prepayments ......................... 18
Section 8.4. Maturity; Surrender, etc. ................................. 19
Section 8.5. Purchase of Notes ......................................... 19
Section 8.6. Make-Whole Amount ......................................... 19
Section.8.7. Interest Rate ............................................. 21
Section 9. Affirmative Covenants ............................................ 21
Section 9.1. Compliance with Law ....................................... 21
Section 9.2. Insurance ................................................. 22
Section 9.3. Maintenance of Properties ................................. 22
Section 9.4. Payment of Taxes and Claims ............................... 22
Section 9.5. Partnership Existence, etc. ............................... 23
Section 9.6. Use of Proceeds, Margin Stock ............................. 23
Section 9.7. Payment of Distributions .................................. 23
Section 10. Negative Covenants
Section 10.1. Transactions with Affiliates .............................. 25
Section 10.2. Merger, Consolidation, etc. ............................... 25
Section 10.3. Limitations on Liens ...................................... 26
Section 10.4. Subsidiaries .............................................. 28
Section 10.5. Limitations on Sale of Assets ............................. 28
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Section 10.6. Debt Service Coverage Ratio ............................... 28
Section 11. Events of Default ............................................... 29
Section 12. Remedies on Default, etc. ....................................... 31
Section 12.1. Acceleration .............................................. 31
Section 12.2. Other Remedies ............................................ 32
Section 12.3. Rescission ................................................ 32
Section 12.4. No Waivers or Election of Remedies, Expenses, etc. ........ 33
Section 13. Registration; Exchange; Substitution of Notes ................... 33
Section 13.1. Registration of Notes ..................................... 33
Section 13.2. Transfer and Exchange of Notes ............................ 33
Section 13.3. Replacement of Notes ...................................... 34
Section 14. Payments on Notes ............................................... 35
Section 14.1. Place of Payment .......................................... 35
Section 14.2. Home Office Payment ....................................... 35
Section 15. Expenses, etc ................................................... 36
Section 15.1. Transaction Expenses ...................................... 36
Section 15.2. Survival .................................................. 36
Section 16. Survival of Representations and Warranties; Entire Agreement .... 37
Section 17. Amendment and Waiver ............................................ 37
Section 17.1. Requirements .............................................. 37
Section 17.2. Solicitation of Holders of Notes .......................... 38
Section 17.3. Binding Effect, etc. ...................................... 38
Section 17.4. Notes Held by Issuer, etc ................................. 38
Section 18. Notices ......................................................... 39
Section 19. Reproduction of Documents ....................................... 39
Section 20. Confidential Information ........................................ 40
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Section 21. Substitution of Purchaser ............................... 41
Section 22. Miscellaneous ................................................... 41
Section 22.1. Successors and Assigns .................................... 41
Section 22.2. Payments Due on Non-Business Days ......................... 42
Section 22.3. Severability .............................................. 42
Section 22.4. Construction .............................................. 42
Section 22.5. Counterparts .............................................. 42
Section 22.6. Governing Law ............................................. 42
Section 22.7. Submission to Jurisdiction; Waivers ....................... 42
Section 22.8. WAIVER OF JURY TRIAL ...................................... 43
Section 22.9. Concerning the Collateral Agent ........................... 43
Schedule A -- Information Relating to Purchasers
Schedule B -- Defined Terms
Schedule 4.8 -- Changes in Partnership Structure
Schedule 5.3 Disclosure
Schedule 5.8 -- Litigation
Schedule 5.11 -- Licenses, Permits, etc.
Schedule 5.14 -- Existing Indebtedness; Future Liens
Schedule 5.17 -- Environmental Matters
EXHIBIT 1-A -- Form of Series G Note
EXHIBIT 1-B -- Form of Series O Note
EXHIBIT 4.4(a) Form of Opinion of Special New York Counsel to the Issuer
EXHIBIT 4.4(b) -- Form of Opinion of Special Alabama Counsel to the Issuer
EXHIBIT 4.4(c) -- Form of Opinion of Counsel to Geon
EXHIBIT 4.4(d) -- Form of Opinion of Counsel to Olin
EXHIBIT 4.4(e) Form of Opinion of Special Counsel to the Purchasers
EXHIBIT 4.12 -- Subordination Agreement
EXHIBIT 18 -- Notices
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SUNBELT CHLOR ALKALI PARTNERSHIP
Guaranteed Secured Senior Notes due 2017
December 22, 1997
TO EACH OF THE PURCHASERS LISTED IN
THE ATTACHED SCHEDULE A:
Ladies and Gentlemen:
SUNBELT CHLOR ALKALI PARTNERSHIP, a Delaware general partnership (the
"Issuer"), agrees with you as follows:
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Section 1. Authorization of Notes. The Issuer will authorize the issue
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and sale of (a) $97,500,000 aggregate principal amount of its Guaranteed Secured
Senior Notes due 2017, Series G, which are guaranteed by Geon pursuant to the
Geon Guarantee (the "Series G Notes") and (b) $97,500,000 aggregate principal
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amount of its Guaranteed Senior Notes due 2017, Series O, which are guaranteed
by Olin pursuant to the Olin Guarantee (the "Series O Notes") (the Series G
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Notes and the Series O Notes are collectively referred to as the "Notes", the
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terms Series G Notes, Series O Notes and Notes to include any such notes issued
in substitution therefor pursuant to Section 13 of this Agreement or the Other
Agreements (as hereinafter defined)). The Series G Notes shall be substantially
in the form set out in Exhibit 1-A and the Series O Notes shall be substantially
in the form set out in Exhibit 1-B, each with such changes therefrom, if any, as
may be approved by you and the Issuer. 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.
Section 2. Sale and Purchase of Notes. Subject to the terms and
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conditions of this Agreement, the Issuer will issue and sell to you and you will
purchase from the Issuer, at the Closing provided for in Section 3, Series G
Notes and Series O Notes in identical principal amounts as specified opposite
your name in Schedule A at the purchase price of 100% of the principal amounts
thereof. Contemporaneously with entering into this Agreement, the Issuer is
entering into separate Note Purchase Agreements (the "Other Agreements")
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identical with this Agreement with each of the other
purchasers named in Schedule A (the "Other Purchasers"), providing for the sale
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at such Closing to each of the Other Purchasers of Series G Notes and Series 0
Notes in identical principal amounts as specified opposite its name in Schedule
A. Your obligation hereunder and the obligations of the Other Purchasers under
the Other Agreements are several and not joint obligations and you shall have no
obligation under any Other Agreement and no liability to any Person for the
performance or nonperformance by any Other Purchaser thereunder.
Section 3. Closing. The sale and purchase of the Notes to be purchased
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by you and the Other Purchasers shall occur at the offices of Debevoise &
Plimpton, 875 Third Avenue, New York, New York 10022 at 9:00 a.m., New York City
time, at a closing (the "Closing") on December __, 1997 or on such other
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Business Day thereafter as may be agreed upon by the Issuer and you and the
Other Purchasers. At the Closing the Issuer will deliver to you the Series G
Notes and the Series 0 Notes to be purchased by you in the form of a single
Series G Note (or such greater number of Series G Notes in denominations of at
least $1,000,000 as you may request) and a single Series 0 Note (or such greater
number of Series 0 Notes in denominations of at least $1,000,000 as you may
request) dated the date of the Closing and registered in your name (or in the
name of your nominee), against delivery by you to the Issuer or its order of
immediately available funds in the amount of the purchase price therefor by wire
transfer of immediately available funds for the account of the Issuer to account
number 873003-1-394, at Wachovia Bank of North Carolina, NA., 100 N. Main
Street, P.O. Box 3099, Winston Salem, NC 27150, ABA # 0531-0049-4, Account Name:
Sunbelt Chlor Alkali Partnership. If at the Closing the Issuer shall fail to
tender such Notes to you as provided above in this Section 3, or any of the
conditions specified in Section 4 shall not have been fulfilled to your
reasonable satisfaction, you shall, at your election, be relieved of all further
obligations under this Agreement without thereby waiving any rights you may have
by reason of such failure of such nonfulfillment.
Section 4. Conditions to Closing. Your obligation to purchase and pay
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for the Notes to be sold to you at the Closing is subject to the fulfillment to
your reasonable satisfaction, prior to or at the Closing, of the following
conditions:
Section 4.1. Representations and Warranties. The representations and
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warranties of each Obligor in this Agreement and each Related Document shall be
correct in all material respects when made and at the time of the Closing.
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Section 4.2. Performance; No Default. Each Obligor shall have
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performed and complied with all agreements and conditions contained in this
Agreement and each other Related Document 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 9.6) no Default, Event of Default, Guarantor Default, or Guarantor
Event of Default shall have occurred and be continuing. The Issuer shall not
have entered into any transaction since the date of the Memorandum that would
have been prohibited by Section 10.1, Section 10.2, Section 10 3, Section 10.4,
or Section 10.5 hereof had such Sections applied since such date.
Section 4.3. Compliance Certificates.
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(a) Officer's Certificate. Each Obligor shall have delivered to you
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an Officer's Certificate, dated as of the date of the Closing, certifying that
the conditions applicable to it specified in Section 4.1, Section 4.2 and
Section 4.8 have been fulfilled.
(b) Secretary's Certificate. Each Obligor shall have delivered to you
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a certificate certifying as to the resolutions attached thereto and other
partnership or corporate proceedings relating to the authorization, execution
and delivery of the Related Documents to which it is a party.
Section 4.4. Opinions of Counsel. You shall have received opinions in
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form and substance reasonably satisfactory to you, dated the date of the Closing
from (a) Cravath, Swaine & Moore, special New York counsel to the Issuer
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substantially in the form of Exhibit 4.4(a), (b) Sirote & Permutt, special
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Alabama counsel to the Issuer substantially in the form of Exhibit 4.4(b), (c)
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General Counsel of Geon substantially in the form of Exhibit 4.4(c), (d) Johnnie
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M. Jackson, Esq., Vice President, General Counsel and Secretary of Olin
substantially in the form of Exhibit 4.4(d), and (e) Debevoise & Plimpton, your
special counsel, substantially in the form of Exhibit 4.4(e).
Section 4.5. Purchase Permitted by Applicable Law, etc. On the date of
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the Closing your purchase of Notes shall (i) be permitted by the laws and
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regulations of each jurisdiction to which you are subject, without recourse to
provisions (such as Section 1405(a)(8) of the New York Insurance Law) permitting
limited investments by insurance companies without restriction as to the
character of the particular investment (ii) not violate any applicable law or
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regulation (including, without limitation, Regulation G, T or X of the Board of
Governors of the Federal Reserve System) and (iii) not subject you to any tax,
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penalty or liability under or pursuant to any applicable law or regulation.
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which law or regulation was not in effect on the date hereof. If requested by
you, you shall have received an Officer's Certificate certifying as to such
matters of fact as you may reasonably specify to enable you to determine whether
such purchase is so permitted.
Section 4.6. Sale of Other Notes. Contemporaneously with the Closing,
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the Issuer shall sell to the Other Purchasers and the Other Purchasers shall
purchase the Notes to be purchased by them at the Closing as specified in
Schedule A.
Section 4.7. Private Placement Number. A Private Placement Number
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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 of the Series G Notes and the
Series 0 Notes.
Section 4.8. Changes in Partnership Structure. Except as specified in
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Schedule 4.8, (a) no Obligor shall have changed its jurisdiction of
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organization, (b) the Issuer has not been a party to any merger or consolidation
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and shall not have succeeded to the liabilities of any other entity and (c)
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neither Guarantor has been a party to any merger or consolidation and shall not
have succeeded to the liabilities of any other entity in an aggregate amount
exceeding $10,000,000, at any time following the date of the Memorandum.
Section 4.9. Proceedings and Documents. All corporate, partnership and
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other proceedings in connection with the transactions contemplated by this
Agreement and all documents and instruments incident to such transactions shall
be reasonably satisfactory to you and your special counsel, and you and your
special counsel shall have received all such counterpart originals or certified
or other copies of such documents as you or they may reasonably request.
Section 4.10. Delivery of Other Related Documents and Search Results
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(a) Each Guarantor shall have executed and delivered its Guarantee, and each
Guarantee shall be in full force and effect.
(b) The Issuer and the Collateral Agent shall have executed and
delivered the Collateral Agreement and such Collateral Agreement shall be in
full force and effect, and each document (including each Uniform Commercial Code
financing statement) required by law or reasonably requested by the Purchasers
to be filed, registered or recorded in order to create in favor of the
Collateral Agent for the benefit of the holders of the Notes a valid, legal and
perfected first priority security interest in the
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Collateral (subject to any prior or equal Liens permitted by Section 10.3) shall
have been delivered to the Purchasers.
(c) The Issuer shall have delivered to the Purchasers the results of
a search of the Uniform Commercial Code filings (or equivalent filings) made
with respect to the Issuer in the states (or other jurisdictions) in which the
chief executive office of the Issuer is located, any offices of the Issuer in
which records are kept relating to Accounts (as defined in the Collateral
Agreement), and the other jurisdictions in which Uniform Commercial Code filings
(or equivalent filings) are to be made pursuant to the Collateral Agreement,
together with copies of financing statements (or similar documents) disclosed by
such search.
(d) The Issuer and the Collateral Agent shall have executed and
delivered the Mortgage, together with (i) evidence of reasonably satisfactory
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arrangements for the completion of all recordings and filings of the Mortgage as
may be necessary, or in the reasonable opinion of the Required Holders,
desirable to effectively create a valid, perfected first priority Lien against
the properties purported to be covered thereby; and (ii) mortgagee's title
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insurance policies in favor of the Collateral Agent and the holders of the Notes
in amounts and in form and substance and issued by insurers, reasonably
satisfactory to the Required Holders, with respect to the property purported to
be covered by the Mortgage, insuring that title to such property is marketable
and that the interests created by the Mortgage constitute a valid first priority
Lien thereon free and clear of all defects and encumbrances other than Liens
permitted by this Agreement or any other Related Document, and such policies
shall also include such other endorsements as the Required Holders shall
reasonably request and shall be accompanied by evidence of the payment in full
of all premiums thereon.
Section 4.11. Payment of Special Counsel Fees. Without limiting the
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provisions of Section 15.1, the Issuer shall have paid on or before the Closing
the fees, charges and disbursements of your special counsel, Debevoise &
Plimpton, to the extent reflected in a reasonably detailed statement of such
counsel rendered to the Issuer at least three Business Days prior to the
Closing.
Section 4.12. Subordination. Each of Olin, Geon, the Issuer and each
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Partner shall have delivered to you a subordination agreement in the form
attached as Exhibit 4.12 (each, a "Subordination Agreement").
Section 4.13. Real Estate Lease Agreement. The Real Estate Lease
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Agreement shall be amended so that it is reasonably satisfactory to you.
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Section 5. Representations and Warranties of the Issuer. The Issuer
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represents and warrants to you that:
Section 5.1. Organization; Power and Authority. The Issuer is a
---------------------------------
general partnership duly organized, validly existing and in good standing under
the laws of Delaware, and is duly qualified as a foreign partnership and is in
good standing in each jurisdiction in which such qualification is required by
law (including, without limitation, Alabama), other than those jurisdictions as
to which the failure to be so qualified or in good standing could not,
individually or in the aggregate, reasonably be expected to have an Issuer
Material Adverse Effect. The Issuer has the power and authority to own or hold
under lease the properties it purports to own or hold under lease, to transact
the business it transacts and proposes to transact, to execute and deliver this
Agreement and the Other Agreements and the other Issuer Related Documents and to
perform the provisions hereof and thereof.
Section 5.2. Authorization, etc. This Agreement and the Other
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Agreements and the other Issuer Related Documents have been duly authorized by
all necessary partnership action on the part of the Issuer and all necessary
corporate action on the part of the Partners, and this Agreement constitutes,
and upon execution and delivery thereof, each Note and other Issuer Related
Document will constitute, a legal, valid and binding obligation of the Issuer
enforceable against the 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
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whether such enforceability is considered in a proceeding in equity or at law).
Section 5.3. Disclosure. The Issuer, through its agent, Citicorp
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Securities, Inc., has delivered to you and each Other Purchaser a copy of a
Private Placement Memorandum, dated August 27, 1997, as supplemented by
Supplement No. 1 (the "Memorandum"), relating to the transactions contemplated
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hereby. The Issuer Portions of the Memorandum fairly describe, in all material
respects, the general nature of the business and principal properties of the
Issuer. Except as disclosed in Schedule 5.3, this Agreement, the Issuer Portions
of the Memorandum, the documents, certificates or other writings delivered to
you by or on behalf of the Issuer in connection with the transactions
contemplated hereby, taken as a whole, do not contain any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein not misleading in light of the circumstances under which they
were made. 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 in Schedule 5.3 and delivered to you. since August 27, 1997, there
has been no Issuer Material Adverse Effect. There is no
6
fact known to the Issuer that could reasonably be expected to have an Issuer
Material Adverse Effect that has not been set forth herein or in the Memorandum
or in the other documents, certificates and other writings delivered to you by
or on behalf of the Issuer specifically for use in connection with the
transactions contemplated hereby.
Section 5.4. Subsidiaries. The Issuer has no Subsidiaries.
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Section 5.5. Projections and Pro Forma Information. It is understood
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that no representation or warranty is made concerning the forecasts, estimates,
pro forma information, projections and statements as to anticipated future
performance or conditions which are contained in the Issuer Portions of the
Memorandum or any other document, certificate or other presentation given to
you, nor concerning the assumptions on which they were based, except that as of
the date such forecasts, estimates, pro forma information, projections and
statements were generated, (i) such forecasts, estimates, pro forma information,
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projections and statements were based on the good faith assumptions of the
Issuer, and (ii) such assumptions were believed by the Issuer to be reasonable.
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Such forecasts, estimates, pro forma information and statements, and the
assumptions on which they were based, may or may not prove to be correct. It is
understood that the projections prepared by Probe Economics, Inc ("Probe") for
2003 and beyond which are contained in the Memorandum are based in large part on
information developed by Probe from independent third party sources.
Section 5.6. Compliance with Laws, Other Instruments, etc. The
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execution, delivery and performance by the Issuer of this Agreement and the
other Issuer Related Documents will not (i) contravene, result in any breach of,
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or constitute a default under, or result in the creation of any Lien in respect
of any property of the Issuer under, any indenture, mortgage, deed of trust,
loan, purchase or credit agreement, lease, partnership agreement, or any other
agreement or instrument to which the Issuer is bound or by which the Issuer or
any of its properties may be bound or affected (other than a Lien created by or
permitted by this Agreement or any other Related Document), (ii) conflict with
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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 Issuer or (iii) violate any provision of any statute
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or other rule or regulation of any Governmental Authonry applicable to the
Issuer except where such contraventions, breaches, defaults, Liens, conflicts or
violations would not reasonably be expected to have, individually or in the
aggregate, an Issuer Material Adverse Effect.
Section 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 the Issuer of this
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Agreement or the other Issuer Related Documents, except for filing of the
Mortgage and the actions contemplated in Section 3.2 of the Collateral
Agreement, or except where failure to make or do such consents, approvals,
authorizations, registrations, filings or declarations, would not, individually
or in the aggregate, be reasonably expected to have an Issuer Material Adverse
Effect.
Section 5.8. Litigation; Observance of Agreements, Statutes and
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Orders. (a) Except as disclosed in Schedule 5.8, there are no actions, suits or
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proceedings pending or, to the knowledge of the Issuer, threatened against or
affecting the Issuer or any property of the Issuer in any court or before any
arbitrator of any kind or before or by any Governmental Authority that,
individually or in the aggregate, could reasonably be expected to have an Issuer
Material Adverse Effect.
(b) The Issuer is not in default under any term of any agreement or
instrument to which it is a party or by which it is bound, or 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, could reasonably be
expected to have an Issuer Material Adverse Effect.
Section 5.9. Taxes. The Issuer (i) has filed all tax returns required
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to have been filed in any jurisdiction, (ii) has paid all taxes, assessments,
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levies or governmental charges required to have been paid and (iii) has withheld
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all taxes, assessments, levies or governmental charges required to have been
withheld and has paid such withheld taxes, assessments, levies or governmental
charges to the appropriate Governmental Authority, except for any taxes,
assessments, levies or governmental charges (x) the amount, applicability or
-
validity of which is currently being contested in good faith by appropriate
proceedings and with respect to which the Issuer has established adequate
reserves in accordance with GAAP; or (y) where the failure to so file, so
-
withhold or so pay would not, individually or in the aggregate, be reasonably
likely to have an Issuer Material Adverse Effect. The Issuer knows of no basis
for any other tax or assessment that could reasonably be expected to have an
Issuer Material Adverse Effect. The charges, accruals and reserves on the books
of the Issuer in respect of federal, state or other taxes for all fiscal periods
are adequate. The Issuer has elected to be taxed as a partnership for U.S.
federal income tax purposes.
Section 5.10. Title to Property, Leases. The Issuer has good and
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sufficient title to its properties that individually or in the aggregate are
Material, in each case free and clear of Liens except as otherwise permitted by
this Agreement, the Collateral Agreement or the Mortgage. All leases that
individually or in the aggregate are Material
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are valid and subsisting and are in full force and effect in all Material
respects and the Issuer is not in default thereunder.
Section 5.11. Licenses, Permits, etc. Except as disclosed in Schedule
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5.11
(a) the Issuer owns or possesses all licenses, permits, franchises,
authorizations, patents, copyrights, service marks, trademarks and trade
names, or rights thereto, that individually or in the aggregate are
Material, without known conflict with the rights of others;
(b) to the best knowledge of the Issuer, no product of the Issuer
infringes in any material respect any license, permit, franchise,
authorization, patent, copyright, service mark, trademark, trade name or
other right owned by any other Person, except to the extent duly licensed
to Issuer; and
(c) to the best knowledge of the Issuer, there is no Material
violation by any Person of any right of the Issuer with respect to any
patent, copyright, service mark, trademark, trade name or other right owned
or used by the Issuer.
Section 5.12. ERISA. The Issuer has no Plans. The purchase of the
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Notes and the holding of the Notes will not involve a prohibited transaction
(within the meaning of section 4975 of the Code or section 406 of ERISA) that
could subject the Issuer to any tax or penalty on prohibited transactions
imposed under section 4975 of the Code or section 502(i) of ERISA. The
representation by the Issuer in the preceding sentence is made in reliance upon
the accuracy of the Purchasers' representations in Section 6.2 hereof as to the
sources of the funds used to pay the purchase price of the Notes to be purchased
by the Purchasers.
Section 5.13. Private Offering by the Issuer. Neither the Issuer nor
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anyone acting on its behalf has offered the Notes or any similar securities for
sale to, or solicited any offer to buy any of the same from, or otherwise
approached or negotiated in respect thereof with, any person other than you, the
Other Purchasers and not more than 29 other Institutional Investors, each of
which has been offered the Notes at a private sale for investment. Neither the
Issuer nor anyone acting on its behalf has taken, or will take, any action that
would subject the issuance or sale of the Notes to the registration requirements
of Section 5 of the Securities Act.
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Section 5.14. Existing Indebtedness; Future Liens. (a) Except as
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described therein, Schedule 5.14 sets forth a complete and correct list of all
outstanding Indebtedness of the Issuer as of December 18, 1997, since which date
there has been no Material change in the amounts, interest rates, sinking funds,
installment payments or maturities of the Indebtedness of the Issuer. The Issuer
is not in default and no waiver of default is currently in effect, in the
payment of any principal or interest on any Indebtedness of the Issuer and no
event or condition exists with respect to any Indebtedness of the Issuer that
would permit (or that with notice or the lapse of time, or both, would permit)
one or more Persons to cause such Indebtedness to become due and payable before
its stated maturity or before its regularly scheduled dates of payment.
(b) Except as disclosed in Schedule 5.14 hereto or Schedule 5 to the
Collateral Agreement, the Issuer has not agreed or consented to cause or permit
in the future (upon the happening of a contingency or otherwise) any of its
property, whether now owned or hereafter acquired, to be subject to a Lien other
than Liens permitted by Section 10.3.
Section 5.15. Foreign Assets Control Regulations, etc. Neither the
---------------------------------------
sale of the Notes by the Issuer hereunder nor its use of the proceeds thereof
will violate the Trading with the Enemy Act, as amended, or any of the foreign
assets control regulations of the United States Treasury Department (31 CFR,
Subtitle B, Chapter V, as amended) or any enabling legislation or executive
order relating thereto.
Section 5.16. Status Under Certain Statutes. The Issuer is not subject
-----------------------------
to regulation under the Investment Company Act of 1940, as amended, the Public
Utility Holding Company Act of 1935, as amended, the Interstate Commerce Act, as
amended, or the Federal Power Act, as amended.
Section 5.17. Environmental Matters. Except as disclosed in Schedule
---------------------
5.17, no Venture Manager of the Issuer, no Responsible Officer of the Issuer
and no member of the Management Committee of the Issuer has any knowledge of any
material claim or of any facts which could reasonably be expected to give rise
to a material claim and no proceeding has been instituted, raising any material
claim against the Issuer or any of its real properties now or formerly owned,
leased or operated by it or other assets, alleging any damage to the environment
or violation of any Environmental Laws, except, in each case, such as could not
reasonably be expected to result in an Issuer Material Adverse Effect.
10
Except as otherwise disclosed in Schedule 5.17,
(a) the Issuer
(i) has not treated any Hazardous Materials on real properties
now or formerly owned, leased or operated by it, except as permitted
under Environmental Law,
(ii) has not stored any Hazardous Materials on real properties
now or formerly owned, leased or operated by it and has not disposed
of any Hazardous Materials, in each case, in a manner contrary to any
Environmental Laws, and
(iii) has not generated or disposed of, or caused the release of,
any Hazardous Materials on or from any property, currently or formerly
owed, leased or operated by it in a manner, or at levels, that could
reasonably be expected to lead to liability under Environmental Laws,
in each case in any manner that could reasonably be expected to result
in an Issuer Material Adverse Effect; and
(b) all buildings, properties and facilities currently owned, leased
or operated by the Issuer are in compliance with Environmental Laws,
except where failure to comply could not reasonably be expected to result
in an Issuer Material Adverse Effect.
Section 6. Representations of the Purchaser.
--------------------------------
Section 6.1. Purchase for Investment. You represent that you are
-----------------------
purchasing the Notes for your own account or for one or more separate accounts
maintained by you or for the account of one or more pension or trust funds and
not with a view to the distribution thereof; provided that the disposition of
--------
your or their property shall at all times be within your or their control. You
understand that the Notes have not been registered under the Securities Act and
may be resold only if registered pursuant to the provisions of the Securities
Act or if an exemption from registration is available, except under
circumstances where neither such registration nor such an exemption is required
by law, and that the Issuer is not required to register the Notes.
Section 6.2. Source of Funds. You represent that at least one of the
---------------
following statements is an accurate representation as to each source of funds (a
"Source")
------
11
to be used by you to pay the purchase price of the Notes to be purchased by you
hereunder:
(a) if you are an insurance company, the Source does not include
assets allocated to any separate account maintained by you in which any
employee benefit plan (or its related trust) has any interest, other than a
separate account that is maintained solely in connection with your fixed
contractual obligations under which the amounts payable, or credited, to
such plan and to any participant or beneficiary of such plan (including any
annuitant) are not affected in any manner by the investment performance of
the separate account; or
(b) the Source is either (i) an insurance company pooled separate
-
account, within the meaning of Prohibited Transaction Exemption ("PTE")
---
90-1 (issued January 29, 1990, or (ii) a bank collective investment fund,
--
within the meaning of the PTE 91-38 (issued July 12, 1991) and, except as
you have disclosed to the Issuer in writing pursuant to this clause (b), no
employee benefit plan or group of plans maintained by the same employer or
employee organization beneficially owns more than 10% of all assets
allocated to such pooled separate account or collective fund; or
(c) the Source constitutes assets of an "investment fund" (within the
meaning of Part V of the QPAM Exemption) managed by a "qualified
professional asset manager" or "QPAM" within the meaning of Part V of the
QPAM Exemption), no employee benefit plan's assets that are included in
such investment fund, when combined with the assets of all other employee
benefit plans established or maintained by the same employer or by an
affiliate (within the meaning of Section V(c)(1) of the QPAM Exemption) of
such employer or by the same employee organization and managed by such
QPAM, exceed 20% of the total client assets managed by such QPAM, the
conditions of Part I(c) and (g) of the QPAM Exemption are satisfied,
neither the QPAM nor a person controlling or controlled by the QPAM
(applying the definition of "control" in Section V(e) of the QPAM
Exemption) owns a 5% or more interest in the Issuer and (i) the identity of
-
such QPAM has been disclosed to the Issuer in writing pursuant to this
clause (c); or
(d) the Source is a governmental plan; or
(e) the Source is one or more employee benefit plans, or a separate
account or trust fund comprised of one or more employee benefit plans, each
of which has been identified to the Issuer in writing pursuant to this
clause (e); or
12
(f) the Source does not include assets of any employee benefit plan,
other than a plan exempt from the coverage of ERISA; or
(g) the Source is an insurance company general account in respect of
which the reserves and liabilities for the general account contract(s) held
by or on behalf of any Benefit Plan (as defined by the annual statement for
life insurance companies approved by the National Association of Insurance
Commissioners (the "NAIC Annual Statement")) together with the amount of
---------------------
the reserves and liabilities for the general account contract(s) held by or
on behalf of any other Benefit Plans maintained by the same employer (or
affiliate thereof as defined in PTE 95-60) or by the same employee
organization (as defined by the NAIC Annual Statement) in the general
account do not exceed ten percent (10%) of the total reserves and
liabilities of the general account (exclusive of separate account
liabilities) plus surplus as set forth in the NAIC Annual Statement filed
with the state of domicile of the insurance company.
As used in this Section 6.2, the terms "employee benefit plan", "governmental
plan", "party in interest" and "separate account" shall have the respective
meanings assigned to such terms in Section 3 of ERISA.
Section 6.3. Limited Recourse. You acknowledge and agree that (a)
---------------- -
recourse for payment of the obligations of the Issuer under the Issuer Related
Documents shall be limited to the Issuer and its assets (and excluding any
assets of the Partners which are not assets of the Issuer), and (b) the
-
Guarantors shall not be liable, directly or indirectly, for the payment of the
obligations of the Issuer under the Issuer Related Documents, except as solely
and expressly provided in their respective Guarantees.
Section 7. Information as to the Issuer.
----------------------------
Section 7.1. Financial and Business Information. The Issuer shall
----------------------------------
deliver to each holder of Notes that is an Institutional Investor:
(a) Quarterly Statements -- within 75 days after the end of each
--------------------
quarterly fiscal period in each fiscal year of the Issuer (other than the
last quarterly fiscal period of each such fiscal year), a copy of,
(i) a balance sheet of the Issuer as at the end of such quarter,
and
13
(ii) statements of income, changes in partners' capital and cash
flows of the Issuer, 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 Responsible Officer of the Issuer
as fairly presenting, in all material respects, the financial position of
the entity being reported on and its results of operations and cash flows,
subject to changes resulting from year-end adjustments;
(b) Annual Statements -- within 105 days after the end of each fiscal
-----------------
year of the Issuer, a copy of,
(i) a balance sheet of the Issuer, as at the end of such year,
and
(ii) statements of income, changes in partners' capital and cash
flows of the Issuer 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
(A) an opinion thereon of independent certified public accountants of
recognized national standing, which opinion shall state that such financial
statements present fairly, in all material respects, the financial position
of the entity being reported upon and their results of operations and cash
flows and have been prepared in conformity with GAAP, and that the
examination of such accountants in connection with such financial
statements has been made in accordance with generally accepted auditing
standards, and that such audit provides a reasonable basis for such opinion
in the circumstances, and
(B) a certificate of such accountants stating that they have reviewed
this Agreement and stating further whether, in making their audit, they
have become aware of any condition or event that then constitutes a Default
or an Event of Default, and, if they are aware that any such condition or
event then exists, specifying the nature and period of the existence
thereof (it being understood that such accountants shall not be liable,
directly or indirectly, for any failure to obtain knowledge of any Default
or Event of Default unless such accountants should have obtained knowledge
thereof in making an audit in
14
accordance with generally accepted auditing standards or did not make such
an audit);
(c) Notice of Default or Event of Default -- promptly, and in any
-------------------------------------
event within five Business Days after the Venture Manager of the Issuer,
any Responsible Officer of the Issuer or any member of the Management
Committee of the Issuer becomes aware of the existence of any Default or
Event of Default or that any Person has given any notice or taken any
action with respect to a claimed default hereunder or that any Person has
given any notice or taken any action with respect to a claimed default of
the type referred to in Section 11(f), a written notice specifying the
nature and period of existence thereof and what action the Issuer is taking
or proposes to take with respect thereto;
(d) Notices from Governmental Authority -- promptly, and in any event
-----------------------------------
within 30 days of receipt thereof, copies of any notice to the Issuer from
any Person (including without limitation Federal or state Governmental
Authority) relating to any notice, claim, decree, order, ruling, statute or
other law or regulation that could reasonably be expected to have a
Material Adverse Effect; and
(e) Requested Information -- with reasonable promptness, such other
---------------------
data and information relating to the business, operations, affairs,
financial condition, assets or properties of the Issuer or relating to the
ability of the Issuer to perform its obligations hereunder and under the
Notes as from time to time may be reasonably requested by any such holder
of Notes.
(f) Delivery of Documents Pursuant to the Operating Agreement --
---------------------------------------------------------
promptly, and in any event within 30 days of their becoming available, each
Operating Budget (together with actual figures, if any, for the prior
fiscal year) pursuant to Section 2.04(d) of the Operating Agreement and
each Capital Expenditure Budget (together with actual figures, if any, for
the prior fiscal year) pursuant to Section 2.04(e) of the Operating
Agreement.
(g) Amendments of Contracts -- promptly, and in any event within 30
-----------------------
days of their execution, each written supplement, variation of, and other
document signed by one or more of the parties thereto affecting the rights
of the parties under each of the Contracts listed in Schedule 7 to the
Collateral Agreement.
15
Section 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)
hereof:
(a) Covenant Compliance -- shall be accompanied by a certificate of a
-------------------
Responsible Officer of the Issuer setting forth the information (including
detailed calculations) required in order to establish whether the Issuer
was in compliance with the requirements of Section 10.5 hereof, during the
quarterly or annual period covered by the statements then being furnished
(including with respect to 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 Section, and the calculation of the
amount, ratio or percentage then in existence); and
(b) Event of Default -- shall be accompanied by a certificate of the
----------------
Responsible Officer of the Issuer setting forth a statement that such
Responsible 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 Issuer 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 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 Issuer to comply with any
Environmental Law), specifying the nature and period of existence thereof
and what action the Issuer shall have taken or proposes to take with
respect thereto.
Section 7.3. Inspection. The Issuer shall permit the representatives
----------
of each holder of Notes that is an Institutional Investor:
(a) No Event of Default -- if no Default, Event of Default, Guarantor
-------------------
Default or Guarantor Event of Default then exists, at the expense of such
holder and upon reasonable prior notice to the Issuer, and at reasonable
intervals (not to exceed one instance as to such holder, in each calendar
year), to visit the principal executive office of the Issuer, to discuss
the affairs, finances and accounts of the Issuer with representatives of
the Issuer, and (with the consent of the Issuer, which consent will not be
unreasonably withheld) its independent public accountants, and (with the
consent of the Issuer, which consent will not be unreasonably withheld) to
visit the other offices and properties of the Issuer, all at such
reasonable times and as often as may be reasonably requested in writing;
and
16
(b) Event of Default -- if a Default, Event of Default, Guarantor
----------------
Default or Guarantor Event of Default then exists, at the expense of the
Issuer to visit and inspect any of the offices or properties of the Issuer,
to examine all of its books of account, records, reports and other papers,
to make copies and extracts therefrom, and to discuss its affairs, finances
and accounts with its Venture Manager, other representatives of the Issuer,
the independent public accountants of the Issuer (and by this provision the
Issuer authorizes such accountants to discuss the affairs, finances and
accounts of the Issuer), all at such times and as often as may be
requested,
provided that the Issuer shall not be required to disclose information from a
- --------
non-affiliated third party which is subject to a confidentiality agreement nor
waive any reasonable claim of privilege and provided further that if no Default,
-------- -------
Event of Default, Guarantor Default or Guarantor Event of Default then exists,
the holders will attempt in good faith to coordinate their inspections so as not
to cause an unnecessary burden on the Issuer.
Section 8. Prepayment of the Notes.
-----------------------
Section 8.1. Required Payments. On December 22 of each year, beginning
-----------------
December 22, 2002 and ending December 22, 2017, the Issuer will repay one-
sixteenth of the original principal amount of each Note then outstanding (or
such lesser principal amount as shall then be outstanding) at par and without
payment of the Make-Whole Amount or any premium; provided, however, that upon
-------- -------
any partial prepayment of the Notes pursuant to Section 8.2 (other than
subsection (d) thereof) or purchase of the Notes permitted by Section 8.5, the
principal amount of each required prepayment of the Notes becoming due under
this Section 8.1 on and after the date of such prepayment or purchase shall be
reduced in the same proportion as the aggregate unpaid principal amount of the
Notes is reduced as a result of such prepayment or purchase.
Section 8.2. Optional Prepayments with Make-Whole Amount; Purchases by
---------------------------------------------------------
Guarantors. (a) The Issuer may, at its option, upon notice as provided below,
- ----------
prepay at any time all, or from time to time any part of, the Notes, at 100% of
the principal amount so prepaid, plus accrued and unpaid interest on the
principal amount so prepaid and the Make-Whole Amount determined for the
prepayment date with respect to such principal amount.
(b) Either Guarantor and any Affiliate of either Guarantor may, at
its option, upon notice as provided below, purchase at any time all, or from
time to time any part of, the Notes, at 100% of the principal amount so
purchased, plus accrued and
17
unpaid interest on the principal amount so purchased and the Make-Whole Amount
determined for the purchase date with respect to such principal amount.
(c) Except with respect to optional repurchases of Notes pursuant to
an Effective Cure, the Issuer or the applicable Guarantor, as the case may be,
will give each holder of Notes written notice of each optional prepayment or
purchase under this Section 8.2 not less than 30 days and not more than 60 days
prior to the date fixed for such prepayment or purchase. Each such notice shall
specify such date, the aggregate principal amount of the Notes to be prepaid or
purchased on such date, the principal amount of each Note held by such holder to
be prepaid or purchased (determined in accordance with Section 8.3), and the
interest to be paid on the prepayment or purchase date with respect to such
principal amount being prepaid or purchased, and shall be accompanied by a
certificate of a Responsible Officer as to the estimated Make-Whole Amount due
in connection with such prepayment or purchase (calculated as if the date of
such notice were the date of the prepayment or purchase), setting forth the
details of such computation. Two Business Days prior to such prepayment or
purchase, the Issuer or the Guarantor, as the case may be, shall deliver to each
holder of Notes a certificate of a Responsible Officer specifying the
calculation of such Make-Whole Amounts as of the specified prepayment or
purchase date.
(d) If a Guarantor requests a Guarantor Transfer pursuant to Section
5.5 of the applicable Guarantee, and 80% or more of the holders of the Notes
consent to such Guarantor Transfer, (i) the Issuer may, at its option, upon
-
notice as provided above, prepay the Notes of such nonconsenting holders, or
(ii) such Guarantor or Affiliate of such Guarantor or the Person succeeding to
--
such Guarantor in a Guarantor Transfer (or its Affiliate) may, at its option,
upon notice as provided above, purchase the Notes of such nonconsenting holders,
in each case at 100% of the principal amount so prepaid, plus the Make-Whole
Amount determined for the prepayment date with respect to such principal amount.
(e) Each of the holders of a Note agrees to sell to any Guarantor or
Person succeeding to a Guarantor as descnbed in Section 8.2(d)(ii) or any
Affiliate of any thereof pursuant to this Section 82 or Section 2.2 of such
Guarantor's Guarantee, all, or from time to time, any part of, its Notes, at a
purchase price equal to 100% of the principal amount so purchased, plus accrued
and unpaid interest on the principal amount so purchased and the Make-Whole
Amount (if any) with respect to such principal amount of Notes so purchased, as
provided in this Section 8.2 or such Section 22.
Section 8.3. Allocation of Partial Prepayments. (a) In the case of
---------------------------------
each partial prepayment or purchase of the Notes (pursuant to Section 8.2 (other
than
18
subsection (d) thereof), the principal amount of the Notes to be prepaid or
purchased 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 prepayments or purchase.
(b) In the case of each partial prepayment of the Notes pursuant to
Section 8.2(d), the prepayment amount shall be allocated to repay in full all of
the Notes of such nonconsenting holders of Notes.
Section 8.4. Maturity; Surrender, etc. In the case of each prepayment
------------------------
of Notes pursuant to this Section 8, the principal amount of each Note to be
prepaid shall mature and become due and payable on the date fixed for such
prepayment, together with interest on such principal amount accrued to such date
and the applicable Make-Whole Amount, if any. From and after such date, unless
the Issuer 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 thereafter be surrendered to the Issuer and canceled and shall not be
reissued, and no Note shall be issued in lieu of any prepaid principal amount of
any Note.
Section 8.5. Purchase of Notes. The Issuer will not purchase, redeem,
-----------------
prepay or otherwise acquire, directly or indirectly, any or all of the
outstanding Notes except upon the purchase, redemption, payment or prepayment of
the Notes in accordance with the terms of this Agreement and the Notes or
pursuant to an offer made pro rata and on the same terms to the holders of all
the Notes. The Issuer will promptly cancel all Notes acquired by it pursuant to
any purchase, redemption, payment or prepayment of Notes pursuant to any
provision of this Agreement.
Section 8.6. Make-Whole Amount. The term "Make-Whole Amount" means,
----------------- -----------------
with respect to any Note, an amount equal to the excess, if any, of the
Discounted Value of the Remaining Scheduled Payments with respect to the Called
Principal of such Note over the amount of such Called Principal; provided that
--------
the Make-Whole Amount may in no event be less than zero. For the purposes of
determining the Make-Whole Amount, the following terms have the following
meanings:
"Called Principal" means, with respect to any Note, the principal of
----------------
such Note that is to be prepaid pursuant to Section 8.2 or has become or is
declared to be immediately due and payable pursuant to Section 12.1, as the
context requires
19
"Discounted Value" means, with respect to the Called Principal of any
----------------
Note, the amount obtained by discounting all Remaining Scheduled Payments
with respect to such Called Principal from their respective scheduled due
dates to the Settlement Date with respect to such Called Principal, in
accordance with accepted financial practice and at a discount factor
(applied on the same periodic basis as that on which interest on the Notes
is payable) equal to the Reinvestment Yield with respect to such Called
Principal.
"Reinvestment Yield" means, with respect to the Called Principal of
------------------
any Note, 0.50% over the yield to maturity implied by (i) the average of
-
the bid and offer 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 Page indicated on "PX" on the Bloomberg Financial
Market Service (or such other display as may replace Pages indicated on
"PX" 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 duration closest to and greater than the
Remaining Average Life and (2) the actively traded U.S. Treasury security
-
with the duration closest to and less than the Remaining Average Life.
"Remaining Average Life" means, with respect to any Called Principal,
----------------------
the number of years (calculated to the nearest one-twelfth year) obtained
by dividing (i) such Called Principal into (ii) the sum of the products
- --
obtained by multiplying (a) the principal component of each Remaining
-
Scheduled Payment with respect to such Called Principal by (b) the number
-
of years (calculated to the nearest one-twelfth year) that will elapse
between the Settlement Date with respect to such Called Principal and the
scheduled due date of such Remaining Scheduled Payment.
20
"Remaining Scheduled Payments" means, with respect to the Called
----------------------------
Principal of any Note, all payments of such Called Principal and interest
thereon that would be due after the Settlement Date with respect to such
Called Principal if no payment of such Called Principal were made prior to
its scheduled due date; provided that if such Settlement Date is not a date
--------
on which interest payments are due to be made under the terms of the Notes,
then the amount of the next succeeding scheduled interest payment will be
reduced by the amount of interest accrued to such Settlement Date and
required to be paid on such Settlement Date pursuant to Section 8.2 or
12.1.
"Settlement Date" means, with respect to the Called Principal of any
---------------
Note, the date on which such Called Principal is to be prepaid pursuant to
Section 8.2 or has become or is declared to be immediately due and payable
pursuant to Section 12.1, as the context requires.
Section 8.7. Interest Rate. (a) Except as set forth in clause (b),
-------------
interest on the unpaid principal of the Notes shall accrue at a rate equal to
7.23% per annum (computed on the basis of a 360-day year of twelve 30-day
months), payable semiannually in arrears on each June 22 and December 22,
commencing on June 22, 1998.
(b) All overdue amounts of principal, interest, Make-Whole Amount or
any other amount shall bear interest at the Default Rate, payable on demand by
the holder of the relevant Note.
Section 9. Affirmative Covenants. The Issuer covenants that so long as
---------------------
any of the Notes are outstanding:
Section 9.1. Compliance with Law. The Issuer will comply with all
-------------------
laws, ordinances or governmental rules or regulations to which it 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 its properties or to the conduct of
its business, except to the extent that it is contesting in good faith its
obligation to so comply, obtain or maintain before the appropriate Governmental
Authority, in each case to the extent necessary to ensure that noncompliance
with such laws, ordinances or governmental rules or regulations or failures to
obtain or maintain in effect such licenses, certificates, permits, franchises
and other governmental authorizations could not, individually or in the
aggregate, reasonably be expected to have an Issuer Material Adverse Effect.
21
Section 9.2. Insurance. (a) The Issuer will maintain, with financially
---------
sound and reputable insurers, insurance with respect to its properties and
business 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 in accordance with GAAP)
as is prudent in the case of entities of established reputations engaged in the
same or a similar business and similarly situated ("Prudent"). Such insurance
will insure the Issuer, the Collateral Agent and the holders against liability
for personal injury and property damage relating to the Collateral.
(b) All such insurance shall (i) provide that no cancellation,
material reduction in amount or material change in coverage thereof shall be
effective until at least 30 days after receipt by the Collateral Agent of
written notice thereof, (ii) name the Collateral Agent as an additional insured
party or lost payee, (iii) include deductibles as are Prudent and (iv) provide
that upon any casualty or condemnation resulting in a claim under an insurance
policy or insurance policies in excess of $15,000,000, then such amount shall be
given to the Collateral Agent to be applied as set forth in Section 4.7(b) of
the Collateral Agreement.
(c) The Grantor shall deliver to the Collateral Agent and the holders
reports of one or more reputable insurance brokers of the individual insurance
companies with respect to such insurance as the Collateral Agent may from time
to time reasonably request.
Section 9.3. Maintenance of Properties. Subject to Section 10.5, the
-------------------------
Issuer will maintain and keep, or cause to be maintained and kept, its
properties in good repair, working order and condition (other than ordinary wear
and tear), so that the business carried on in connection therewith may be
properly conducted at all times; provided that this Section shall not prevent
--------
the Issuer 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 Issuer has concluded that such discontinuance could not, individually or
in the aggregate, reasonably be expected to have an Issuer Material Adverse
Effect.
Section 9.4. Payment of Taxes and Claims. The Issuer (i) will file all
---------------------------
tax returns required to be filed in any jurisdiction. ii) will pay all taxes,
assessments, levies or governmental charges required to be paid and (iii) will
withhold all taxes, assessments, levies or governmental charges required to be
withheld and will pay such withheld taxes, assessments, levies or governmental
charges to the appropriate Governmental Authority, except for any taxes,
assessments, levies or governmental charges the amount, applicability or
validity of which is currently being contested in good faith by appropriate
22
proceedings and with respect to which the Issuer has established adequate
reserves in accordance with GAAP or where the failure to so file, so withhold or
so pay would not, individually or in the aggregate, be reasonably expected to
have an Issuer Material Adverse Effect.
Section 9.5. Partnership Existence, etc. The Issuer will at all times
--------------------------
preserve and keep in full force and effect its existence as a partnership.
Subject to Section 10.2 and Section 10.5, the Issuer will at all times preserve
and keep in full force and effect all rights and franchises of the Issuer
unless, in the good faith judgment of the Issuer, the termination of or failure
to preserve and keep in full force and effect such partnership existence, right
or franchise could not, individually or in the aggregate, have an Issuer
Material Adverse Effect.
Section 9.6. Use of Proceeds; Margin Stock. Proceeds from the sale of
-----------------------------
the Notes will be used by the Issuer (a) to return capital to the Guarantors for
-
amounts advanced by them for expenditures incurred in the construction of the
Issuer's facilities and the purchase of railcars; (b) to make additional capital
-
expenditures to complete construction of the Issuer's facilities and to purchase
more railcars; (c) for start-up costs associated with the Issuer's facilities;
-
and (d) general purposes of the Issuer. No part of the proceeds from the sale of
-
the Notes hereunder will be used directly or indirectly, for the purpose of
buying or carrying any margin stock within the meaning of Regulation G of the
Board of Governors of the Federal Reserve System (12 CFR 207), or for the
purpose of buying or carrying or trading in any securities under such
circumstances as to involve the Issuer in a violation of Regulation X of such
Board (12 CFR 224) or to involve any broker or dealer in a violation of
Regulation T of such Board (12 CFR 220). As used in this Section, the terms
"margin stock" and "purpose of buying or carrying" shall have the meanings
assigned to them in such Regulation G.
Section 9.7. Payment of Distributions. Nothing in this Agreement or
------------------------
any Related Document shall be construed to limit the ability of the Issuer to
declare, pay or make, directly or indirectly, any distribution (by reduction of
capital or otherwise), whether in cash, property, securities or a combination
thereof, with respect to any partnership interest or set aside any amount for
any such purpose (collectively, "Distributions"); provided, however, that upon
------------- -------- -------
the occurrence and during the continuation of any Event of Default or any
Guarantor Event of Default with respect to a Guarantor, any Distributions
payable to the defaulting Guarantor or its Subsidiary Partner (in the case of a
Guarantor Event of Default) or any Guarantor or its Subsidiary Partner (in the
case of an Event of Default) shall be payable only in the form of promissory
notes (a) which have an initial principal amount equal to the amount that would
-
otherwise have been payable in cash as a distribution to such Guarantor or its
23
Subsidiary Partner, (b) which bear interest at a rate per annum equal to the
-
rate borne by one-month United States treasury obligations, reset on the first
business day of every month, (c) which neither permit nor require any payments
-
of principal or interest to become due until the earlier of (1) a cure or waiver
-
of such Guarantor Event of Default or Event of Default, or (2) the payment in
-
full of the Notes, and (d) which by their terms are fully subordinated in
-
accordance with the Subordination Agreement after the occurrence and during the
continuation of any Guarantor Event of Default or Event of Default to the prior
payment in full in cash of the Notes (including without limitation interest
accruing at the then applicable rate provided in the Note Purchase Agreements
after the filing of any petition in bankruptcy, or the commencement of any
insolvency, reorganization or like proceedings related to the Issuer whether or
not a claim for post filing or post petition interest is allowed in such
proceeding).
Section 9.8 Post-Closing Survey: Title Insurance. As promptly as
------------------------------------
practicable and in any event prior to six (6) months from and after the date
hereof, the Issuer, at its sole cost and expense, shall deliver to you (a) an
-
ALTA survey (setting forth items 1 through 4, 6 through 11 and 13 of ALTA Table
A), certified to you and First American Title Insurance Company (the "Title
Company") for the Real Property (as defined in the Mortgage), which shall show
the location of all of the improvements located on the Real Property and be
satisfactory to the Title Company for the purposes of deleting the survey
exception on Schedule B to the Title Policy (as defined in the Collateral
Agreement) and of issuing the endorsements described in clause (b), and (b)
-
endorsements (i) in the ALTA 9 form (the Leasehold Lender's Comprehensive
-
Endorsement) (to the extent reasonably practicable), (ii) insuring that the Real
--
Property has access to Industrial Road, which is a publicly dedicated road,
(iii) insuring that the Real Property is the same property that is depicted on
---
the survey delivered pursuant to clause (a), and (iv) to the extent necessary if
- --
the survey shows that the Real Property is made up of more than one property
lot, insuring the contiguity of such lots. If the survey delivered pursuant to
this paragraph shall disclose any state of facts or defects which, individually
or in the aggregate, could reasonably be expected to have a material adverse
effect on the operation or value of the Real Property and/or the other
Collateral located thereon, the Issuer shall, at its sole cost and expense,
commence and pursue with due diligence to completion any corrective action that
may be necessary or that the holders of at least a majority in principal amount
of the Notes outstanding may reasonably request to remove such state of facts or
defects and receive the above-described endorsements to the Title Policy and, in
any such circumstance, the Issuer shall remove such state of facts or defects
not later than 120 days following the receipt of such survey. For purposes of
the preceding sentence, any state of facts or defects revealed by the survey
which (x) prevents the Title Company from issuing the above-described
-
endorsements to the Title Policy and (y) the holders of at least a majority in
-
24
principal amount of the Notes outstanding request to be removed, shall be
conclusively deemed to be reasonably expected to have a material adverse effect
on the operation or value of the Real Property and/or the other Collateral
located thereon.
Section 10. Negative Covenants. The Issuer covenants that so long as
------------------
any of the Notes are outstanding:
Section 10.1. Transactions with Affiliates. The Issuer will not enter
----------------------------
into directly or indirectly any Material transaction or 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
except (i) with either Guarantor or any Subsidiary of a Guarantor or (ii) in the
ordinary course and pursuant to the reasonable requirements of the Issuer's
business and upon fair and reasonable terms no less favorable to the Issuer than
would be obtainable in a comparable arm's-length transaction with a Person not
an Affiliate.
Section 10.2. Merger, Consolidation, etc. The Issuer shall not
--------------------------
consolidate with or merge with any other Person or convey, transfer or lease
substantially all of its assets in a single transaction or series of
transactions to any Person unless:
(a) the successor formed by such consolidation or the survivor of
such merger or the Person that acquires by conveyance, transfer or lease
substantially all of the assets of the Issuer as an entirety, as the case
may be, shall be a solvent corporation, limited liability company or
partnership organized and existing under the laws of the United States or
any State thereof (including the District of Columbia), and, if the Issuer
is not such corporation, limited liability company or partnership, such
corporation, limited liability company or partnership (i) shall have
-
executed and delivered to each holder of any Notes its assumption of the
due and punctual performance and observance of each covenant and condition
of this Agreement, the Other Agreements, the Notes and the Issuer Related
Documents and (ii) shall have caused to be delivered to each holder of any
--
Notes an opinion 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 terms and comply with the terms
hereof;
(b) unless otherwise released by the Noteholders, each Guarantor
shall have delivered to each holder an executed confirmation from such
Guarantor that such Guarantee continues to be valid, binding and
enforceable, and
25
(c) immediately after giving effect to such transaction, no Default
or Event of Default shall have occurred and be continuing.
No such conveyance, transfer or lease of substantially all of the assets of the
Issuer shall have the effect of releasing the Issuer or any successor entity
that shall theretofore have become such in the manner prescribed in this Section
10.2 from its liability under this Agreement or the Notes.
Section 10.3. Limitations on Liens. The Issuer will not directly or
--------------------
indirectly create, incur, assume or permit to exist (upon the happening of a
contingency or otherwise) any Lien securing any Indebtedness on or with respect
to any property or asset, except permitted liens as follows:
(i) with respect to any Expansion, unless the Issuer elects otherwise
as provided in clause (vi)(B) of this Section, Liens granted in connection
with Expansion Debt relating to such Expansion; provided, however, that
-------- -------
(A) the Issuer shall make, or cause to be made, effective
provision whereby the Notes will be equally and ratably secured by
Liens on the relevant Expansion Property so long as such Expansion
Debt shall be so secured, such security to be pursuant to the
Collateral Agreement;
(B) unless the Issuer and the Expansion Lenders agree otherwise,
Liens on the Collateral in favor of the Expansion Lenders to secure
such Expansion Debt shall be equal and ratable Liens of the same
priority as of the Liens on the Collateral which secure the Notes,
such security to be pursuant to the Collateral Agreement; and
(C) the initial principal amount of Expansion Debt will not
exceed 95% of the cost of the Expansion (including financing costs);
(ii) Liens for property taxes and assessments or governmental charges
or levies which are not yet due and payable and with respect to which
adequate reserves are reflected on the books and records of the Issuer;
(iii) Liens of or resulting from any judgment or award, the time for
the appeal or petition for rehearing of which shall not have expired, or in
respect of which the Issuer shall at any time in good faith be prosecuting
an appeal or proceeding for a review;
26
(iv) Liens incidental to the conduct of business or the ownership of
properties and assets (including Liens in connection with workers'
compensation, unemployment insurance and other like laws, warehousemen's
and attorneys' liens and statutory landlords' liens), Liens to secure the
performance of bids, tender or trade contracts, or to secure statutory
obligations, surety or appeal bonds or other Liens of like general nature
incurred in the ordinary course of business and not in connection with the
borrowing of money and Liens securing claims or demands of carriers,
warehousemen, landlords, mechanics and materialmen; provided that in each
--------
case, the obligation secured is not overdue or, if overdue, is being
contested in good faith by appropriate actions or proceedings;
(v) survey exceptions or encumbrances, easements or reservations,
or rights of others for rights-of-way, utilities and other similar
purposes, or zoning or other restrictions as to the use of real properties,
which are necessary for the conduct of the activities of the Issuer or
which customarily exist on properties of corporations engaged in similar
activities and similarly situated and which do not in any event materially
impair their use in the operation of the business of the Issuer;
(vi) (A) Liens on property (other than Closing Date Collateral and
-
Expansion Property) and (B) if the Issuer elects not to have clause (i) of
-
this Section apply to any Expansion Property, Liens on any or all such
Expansion Property (a) existing at the time of acquisition of such
-
property, or (b) to secure payment of all or part of the acquisition price
-
thereof, or (c) to secure Indebtedness incurred prior to, at the time or
-
within six months after the acquisition thereof for the purpose of
financing all or part of the acquisition price thereof, or (d) assumed or
-
incurred in connection with the acquisition of such property, such Liens to
be limited in each case to the property so acquired, in any case, to secure
an amount of Indebtedness not exceeding the cost of the property so
encumbered;
(vii) Liens incurred in connection with any Tax Exempt Financing
which do not (a) individually or in the aggregate materially detract from
-
the value of the property or assets affected thereby or materially impair
the use of such property or assets in the operation of its business or (b)
-
encumber any Closing Date Collateral or Expansion Property,
(viii) (A) Liens on property or assets (other than Closing Date
-
Collateral and Expansion Property) and (B) Liens on Closing Date Collateral
-
and Expansion Property to the extent it constitutes cash or money on
deposit, in each case
27
granted in connection with interest rate hedging agreements or granted in
connection with applications for or reimbursement obligations with respect
to any letter of credit issued at the request of the Issuer by a banking
institution to secure the performance of obligations of the Issuer in
relation to such letter of credit, to the extent that such banking
institution requested the granting to it of such Lien as a condition for
its issuance of such letter of credit; provided, however, that the maximum
-------- -------
face amount of such letters of credit outstanding when combined with the
value of the cash collateral securing such interest hedging agreements
shall not exceed $2,500,000 at any one time;
(ix) (A) Liens on property or assets (other than Closing Date
-
Collateral and Expansion Property) and (B) Liens on Closing Date Collateral
-
and Expansion Property to the extent it constitutes Inventory (as defined
in the Collateral Agreement) to the extent of any partial progress, advance
or other payment pursuant to contract or statute (collectively, "Progress
Payments"), in each case in favor of the United States of America, any of
its territories or possessions, or any state thereof, or any department,
agency, instrumentality or political subdivision of any thereof, or any
department, agency or instrumentality of any such political subdivision, to
secure such Progress Payments;
(x) Liens identified on Schedule 5 of the Collateral Agreement; and
(xi) other Liens on property of the Issuer representing at any one
time in the aggregate not more than $2,000,000.
Section 10.4. Subsidiaries. The Issuer will have no Subsidiaries.
------------
Section 10.5. Limitations on Sale of Assets. The Issuer will not
-----------------------------
sell, lease, transfer or otherwise dispose of assets (i) if the net proceeds of
-
such dispositions in any one fiscal year would exceed 10% of the Issuer's total
assets or (ii) if the cumulative net proceeds of such dispositions over the
--
whole term of the Notes would exceed 25% of the Issuer's total assets, in each
case determined as of the end of the immediately preceding fiscal quarter;
provided that in calculating the amount of assets sold for purposes of this
- --------
covenant there shall be excluded (1) assets disposed of in the ordinary course
-
of business, and (2) assets sold, the net proceeds of which are applied within
-
12 months after receipt thereof either (a) to acquire assets of comparable worth
-
and purpose or (b) to prepay the Notes and any other senior secured debt of the
-
Issuer, pro rata in accordance with the respective aggregate outstanding
principal amounts thereof, at a prepayment price for the Notes equal to par plus
accrued interest plus the Make-Whole Amount, if any.
28
Section 10.6. Debt Service Coverage Ratio. As of the date of a
---------------------------
Bankruptcy Event with respect to any Guarantor and at all times thereafter until
the occurrence of an Effective Cure, the Issuer will not permit (a) its Debt
-
Service Coverage Ratio to be less than 1.3 to 1 or (b) its Maximum Future Debt
-
Service Coverage Ratio to be less than 1.1 to 1.
Section 11. Events of Default. An "Event of Default" shall exist if
-----------------
any of the following conditions or events shall occur and be continuing:
(a) the Issuer defaults in the payment of any principal of 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
(b) the Issuer defaults in the payment of any interest or Make-Whole
Amount, if any, on any Note for more than five Business Days after the same
becomes due and payable; or
(c) the Issuer defaults in the performance of or compliance with any
term contained in Section 7.1(c), Section 10.1, Section 10.2, Section 10.3,
Section 10.4 or Section 10.5; or
(d) the Issuer defaults in the performance of or compliance with any
term contained herein (other than Section 10.6 and the terms herein
referred to in clauses (a), (b) and (c) of this Section 11) or in any
Issuer Related Document and such default is not remedied within 30 days
after the earlier of (i) the Venture Manager of the Issuer, any Responsible
-
Officer of the Issuer or any member of the Management Committee of the
Issuer obtaining actual knowledge of such default and (ii) the Issuer
--
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 clause (d) of Section 11); or
(e) any representation or warranty made in writing by or on behalf of
the Issuer in this Agreement or any Related Document to which it is a party
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) the Issuer 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 (x) any Indebtedness that is outstanding in an
-
aggregate principal
29
amount of at least $25,000,000 or (y) any Expansion Debt secured by
-
Collateral beyond any period of grace or cure provided with respect
thereto, or (ii) the Issuer is in default in the performance of or
--
compliance with any term (x) of any evidence of (1) any Indebtedness in an
- -
aggregate outstanding principal amount of at least $25,000,000 or (2) any
-
Expansion Debt secured by Collateral or (y) of any mortgage, indenture or
-
other agreement relating thereto or any other condition exists, and as a
consequence of such default or condition such Indebtedness or Expansion
Debt has become, or has been declared (or one or more Persons are entitled
to declare such Indebtedness or Expansion Debt to be), due and payable
before its stated maturity or before its regularly scheduled dates of
payment, or (iii) as a consequence of the occurrence or continuation of any
---
uncured event or condition (other than the passage of time or the right of
the holder of Indebtedness to convert such Indebtedness or Expansion Debt
into equity interests), (x) the Issuer has become obligated to purchase or
-
repay (1) an aggregate principal amount of at least $25,000,000 of
-
Indebtedness or (2) any Expansion Debt Secured by Collateral before its
-
regular maturity or before its regularly scheduled dates of payment, or (y)
-
one or more Persons have the exercisable right to require the issuer to so
purchase or repay (1) an aggregate principal amount of at least $25,000,000
-
of Indebtedness or (2) any Expansion Debt secured by Collateral; or
-
(g) the occurrence of a Bankruptcy Event with respect to the Issuer;
or
(h) a final judgment or judgments for the payment of money
aggregating in excess of $5,000,000 are rendered against the Issuer and
which judgments (i) are not within 60 days after entry thereof bonded,
-
discharged or stayed pending appeal; or (ii) are not discharged within 60
--
days after the expiration of such stay; or
(i) any security interest purported to be created by the Mortgage or
the Collateral Agreement shall cease to be, or shall be asserted by the
Issuer or either Guarantor not to be, a valid, perfected, first priority
(except as otherwise provided in this Agreement or any other Related
Document) security interest on the property or the Collateral purported to
be covered thereby; or
(j) following the occurrence of a Bankruptcy Event with respect to
either Guarantor, the Issuer is not in compliance with Section 10.6 and
such non-compliance continues for ten Business Days without the occurrence
of an Effective Cure; or
30
(k) the occurrence of a Bankruptcy Event with respect to either
Guarantor after, or at the same time as, a Bankruptcy Event shall have
occurred with respect to the other Guarantor; or
(l) (x) either Guarantee ceases to be in full force and effect (other
-
than solely as a result of (i) the occurrence of a Bankruptcy Event with
-
respect to the applicable Guarantor and (ii) the consequent operation of
--
any applicable bankruptcy law (other than any such bankruptcy law which
merely invokes applicable non-bankruptcy law)), or (y) either Guarantor
-
asserts the invalidity or unenforceability of its Guarantee (other than,
following the occurrence of a Bankruptcy Event with respect to such
Guarantor by any unilateral assertion (without the consent of the Required
Holders) of a bankruptcy trustee elected or appointed pursuant to Section
702 or 1104 of the Bankruptcy Code).
Except as expressly provided in this Agreement or any other Related Document, no
Guarantor Event of Default shall constitute, per se, a Default or Event of
Default, and no breach by a Guarantor of any representation or covenant under
any Guarantee (including any obligation to make payment on or with respect to
the Notes) shall constitute, per se, a Default or Event of Default.
Section 12. Remedies on Default. etc.
------------------------
Section 12.1. Acceleration. (a) If an Event of Default described in
------------
clause (g) (other than as a result of a Bankruptcy Event described in clause
(a)(i) of the definition of "Bankruptcy Event") or (k) of Section 11 has
occurred, all the Notes then outstanding shall automatically become immediately
due and payable.
(b) If an Event of Default described in clause (j) of Section 11 has
occurred, all the Notes then outstanding shall automatically become immediately
due and payable upon the expiration of the ten Business Day period referred to
therein.
(c) If an Event of Default described in clause (l) of Section 11 has
occurred, the holders of at least a majority in principal amount of the Notes
outstanding may at any time at its or their option, by notice or notices to the
Issuer, declare the principal amount of all the Notes then outstanding of the
affected Series to be immediately due and payable.
(d) If any other Event of Default has occurred and is continuing, the
holders of at least a majority in principal amount of the Notes outstanding may
at any
31
time at its or their option, by notice or notices to the Issuer, declare all the
Notes then outstanding to be immediately due and payable.
(e) If any Event of Default described in clause (a) or (b) of Section
11 has occurred and is continuing, any holder or holders of Notes at the time
outstanding affected by such Event of Default may at any time, at its or their
option, by notice or notices to the Issuer, 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. The Issuer
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 Issuer
(except as herein specifically provided for) and that the provision for payment
of a Make-Whole Amount by the Issuer in the event that the Notes are prepaid or
are accelerated as a result of an Event of Default, is intended to provide
compensation for the deprivation of such right under such circumstances.
Section 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.
Section 12.3. Rescission. At any time after any Notes have been
----------
declared or become due and payable following the occurrence of an Event of
Default (other than an Event of Default pursuant to clause (g) of Section 11
(other than as a result of a Bankruptcy Event described in clause (a)(i) of the
definition of "Bankruptcy Event")) (an "Acceleration"), the Required Holders, by
written notice to the Issuer, may rescind and annul any such Acceleration and
its consequences if (a) the Issuer has paid all overdue interest on the Notes,
-
all principal of and Make-Whole Amount, if any, on any Notes that are due and
payable and are unpaid other than by reason of such Acceleration, and all
interest on such overdue principal and Make-Whole Amount, if any, and (to the
extent
32
permitted by applicable law) any overdue interest in respect of the Notes, at
the Default Rate, (b) all Events of Default and Defaults, other than non-payment
-
of amounts that have become due solely by reason of such Acceleration, 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.
Section 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 Issuer under Section 15, the Issuer will
pay to the holder of each Note on demand such further amount as shall be
sufficient to cover all reasonable out-of-pocket costs and expenses of such
holder incurred in any enforcement or collection under this Section 12,
including, without limitation, reasonable attorneys' fees, expenses and
disbursements.
Section 13. Registration; Exchange; Substitution of Notes.
---------------------------------------------
Section 13.1. Registration of Notes. The Issuer shall keep at its
---------------------
principal executive office (or at such other office as is designated from time
to time by the Issuer) a register for the registration and registration of
transfers of each of the Series G Notes and the Series O 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
registers. 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 Issuer shall not be affected
by any notice or knowledge to the contrary. The Issuer 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.
Section 13.2. Transfer and Exchange of Notes. (a) You acknowledge and
------------------------------
agree, and each subsequent holder of a Note shall be deemed to have acknowledged
and agreed, that except for (i) any purchase of Notes by a Guarantor, Affiliate
-
of a Guarantor, or Person permitted to purchase pursuant to Section 8.2(d)
pursuant to this Agreement or a Guarantee and (ii) any assignment, conveyance,
--
encumbrance or other transfer of a Note subsequent to any such purchase by a
Guarantor or Affiliate of a
33
Guarantor, no Note of any Series will be assigned, conveyed, encumbered or
otherwise transferred by you or any other holder unless a Note of the other
Series in a principal amount proportionate to the principal amount of such other
Series held by you is simultaneously assigned, conveyed, encumbered or otherwise
transferred by you or such other holder to the same Person.
(b) Upon surrender of any Note at the principal executive office of
the Issuer (or at such other office as is designated from time to time by the
Issuer) for registration of transfer or exchange (and in the case of a surrender
for registration of transfer, duly endorsed or accompanied by a written
instrument of transfer duly executed by the registered holder of such Note or
his attorney duly authorized in writing and accompanied by the address for
notices of each transferee of such Note or part thereof), the Issuer shall
execute and deliver, at the Issuer's expense (except as provided below), one or
more new Notes (as requested by the holder thereof) in exchange therefor of the
same series, and in an aggregate principal amount equal to the unpaid principal
amount of, the surrendered Note. Each such new Note shall be payable to such
Person as such holder may request, subject to Section 13.2(a) above. Each Series
G Note shall be substantially in the form of Exhibit 1-A and each Series 0 Note
shall be substantially in the form of Exhibit 1-B. 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 Issuer 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
$1,000,000; 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 $1,000,000. Any transferee, by its acceptance of a Note registered in
its name (or the name of its nominee), shall be deemed to have made the
representation set forth in Section 6 2.
Section 13.3. Replacement of Notes. Upon receipt by the Issuer of
--------------------
evidence reasonably satisfactory to it of the ownership of and the loss, theft,
destruction or mutilation of any Note (which evidence shall be, in the case of
an Institutional Investor, notice from such Institutional Investor of such
ownership and such loss, theft destruction or mutilation), and
(a) in the case of loss, theft or destruction, of indemnity
reasonably satisfactory to it (provided that if the holder of such Note is,
--------
or is a nominee for, an original Purchaser or another holder of a Note with
a minimum net worth of at least $150,000,000, such Person's own unsecured
agreement of indemnity shall be deemed to be satisfactory), or
34
(b) in the case of mutilation, upon surrender and cancellation
thereof,
the Issuer at its 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.
Section 14. Payments on Notes.
-----------------
Section 14.1. Place of Payment. Subject to Section 14.2, payments of
----------------
principal, Make-Whole Amount, if any, and interest becoming due and payable on
the Notes shall be made in New York, New York, at the principal office of Harris
Trust Company of New York, 19th Floor, 88 Pine Street, Wall Street Plaza, New
York, New York 10005. The Issuer 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 Issuer in such jurisdiction or the
principal office of a bank or trust company in such jurisdiction.
Section 14.2. Home Office Payment. So long as you or your nominee
-------------------
shall be the holder of any Note, and notwithstanding anything contained in
Section 14.1 or in such Note to the contrary, the Issuer will pay all sums
becoming due on such Note for principal, Make-Whole Amount, if any, and interest
by the method and at the address specified for such purpose below your name in
Schedule A, or by such other method or at such other address as you shall have
from time to time specified to the Issuer 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 Issuer made concurrently with
or reasonably promptly after payment or prepayment in full of any Note, you
shall surrender such Note for cancellation reasonably promptly after any such
request, to the Issuer at the place of payment most recently designated by the
Issuer pursuant to Section 14.1. Prior to any sale or other disposition of any
Note held by you or your nominee you will, at your election, either endorse
thereon the amount of principal paid thereon and the last date to which interest
has been paid thereon or surrender such Note to the Issuer in exchange for a new
Note or Notes pursuant to Section 13.2. The Issuer will afford the benefits of
this Section 14.2 to any Institutional Investor that is the direct or indirect
transferee of any Note purchased by you under this Agreement and that has made
the same agreement relating to such Note as you have made in this Section 14.2.
35
Section 15. Expenses, etc.
-------------
Section 15.1. Transaction Expenses. (a) Whether or not the
--------------------
transactions contemplated hereby are consummated, the Issuer will pay all
reasonable out-of-pocket costs and expenses (including reasonable attorneys'
fees of one firm of special counsel to you and the other Noteholders, and, if
reasonably required, local or other counsel) incurred by you and each Other
Purchaser or holder of a Note in connection with such transactions and in
connection with any amendments, waivers or consents under or in respect of this
Agreement or the Notes (whether or not such amendment, waiver or consent becomes
effective), including, without limitation: (a) the reasonable out-of-pocket
-
costs and expenses incurred in enforcing or defending (or determining whether or
how to enforce or defend) any rights under this Agreement or the Notes or in
responding to any subpoena or other legal process or informal investigative
demand issued in connection with this Agreement or the Notes, or by reason of
being a holder of any Note, and (b) the reasonable out-of-pocket costs and
-
expenses, including reasonable financial advisors' fees, incurred in connection
with the insolvency or bankruptcy of the Issuer or in connection with any
workout or restructuring of the transactions contemplated hereby and by the
Notes. The Issuer will pay, and will save you and each other holder of a Note
harmless from, all claims in respect of any reasonable out-of-pocket fees, costs
or expenses if any, of brokers and finders (other than those retained by you).
(b) The Issuer agrees to pay, and to save any holder harmless from,
any and all liabilities with respect to (or resulting from any delay in paying)
any and all stamp, documentary, excise, sales or other similar taxes,
assessments, levies or governmental charges (other than income taxes and
franchise taxes) required to be paid with respect to the execution, delivery,
enforcement, performance and administration of this Agreement, the Related
Documents and any other documents contemplated by this Agreement or the Related
Documents.
(c) Without limiting the above, the Issuer will pay, promptly upon
receipt of any reasonably detailed supplemental statements therefor, additional
fees, charges and disbursements of your special counsel, Debevoise & Plimpton,
in connection with the Closing (including unposted disbursements as of the date
of the Closing) and attention to post-Closing matters relating to the Closing.
Section 15.2. Survival. The obligations of the Issuer 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.
36
Section 16. Survival of Representations and Warranties; Entire
--------------------------------------------------
Agreement. All representations and warranties contained herein shall survive the
- ---------
execution and delivery of this Agreement and the Notes, the purchase or transfer
by you of any Note or portion thereof or interest therein and the payment of any
Note, and may be relied upon by any subsequent holder of a Note, regardless of
any investigation made at any time by or on behalf of you or any other holder of
a Note. All statements contained in any certificate delivered by or on behalf of
the Issuer pursuant to this Agreement shall be deemed representations and
warranties of the Issuer under this Agreement. Subject to the preceding
sentence, this Agreement, the Notes and the other Related Issuer Documents,
embody the entire agreement and understanding between you and the Issuer and
supersede all prior agreements and understandings relating to the subject matter
hereof.
Section 17. Amendment and Waiver.
--------------------
Section 17.1. Requirements. (a) Subject to Section 17.1(b), this
------------
Agreement and each other Related Document 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 Issuer and the
Required Holders, except that (a) no amendment or waiver of any of the
-
provisions of Section 1, Section 2, Section 3, Section 4, Section 5, Section 6
or Section 21 hereof, or Section 2 of the Guarantee, or any defined term (as it
is used therein), will be effective as to you unless consented to by you in
writing, (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 prepayment or payment of principal of, reduce the rate or
change the time of payment or method of computation of interest or of the
Make-Whole Amount on, the Notes or change the mandatory purchase obligations in
the Guarantee, (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 Section 8, 11(a), 11(b), 12, 17 or 20 and (c) no provision
--- -
affecting a Guarantor or the Collateral Agent may be amended or waived without
the written consent of each Guarantor or the Collateral Agent, as the case may
be.
(b) Upon the timely occurrence of an Effective Cure described in
clause (x) or(y) of the definition thereof following an Event of Default
described in clause (j) of Section 11, all rights and remedies of the holders
under the Bankrupt Guarantor's Guarantee shall be automatically assigned to the
Non-Defaulting Guarantor and the Non-Defaulting Guarantor, and not the holders,
the Required Holders nor the
37
Collateral Agent, shall have the right to consent to any amendment or waiver of
the Bankrupt Guarantor's Guarantee.
Section 17.2. Solicitation of Holders of Notes. (a) Solicitation. The
-------------------------------- ------------
Issuer 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 any Issuer Related
Document. The Issuer will deliver executed or true and correct copies of each
amendment, waiver or consent effected pursuant to the provisions of this Section
17 to each holder of outstanding Notes promptly following the date on which it
is executed and delivered by, or receives the consent or approval of, the
requisite holders of Notes.
(b) Payment. The Issuer will not directly or indirectly pay or cause
-------
to be paid any remuneration, whether by way of supplemental or additional
interest, fee or otherwise, or grant any security, to any holder of Notes as
consideration for or as an inducement to the entering into by any holder of
Notes or any waiver or amendment of any of the terms and provisions hereof or of
the Guarantee or any other Issuer Related Document 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.
Section 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 Issuer
without regard to whether such Note has been marked to indicate such amendment
or waiver. No such amendment or waiver will extend to or affect any obligation,
covenant, agreement, Default or Event of Default not expressly amended or waived
or impair any right consequent thereon. No course of dealing between the 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 "this Agreement" and references thereto shall
mean this Agreement as it may from time to time be amended or supplemented.
Section 17.4. Notes Held by Issuer 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
any other Related Documents. or have directed the taking of any action provided
herein or in the Notes to be taken upon
38
the direction of the holders of a specified percentage of the aggregate
principal amount of Notes then outstanding, Notes directly or indirectly owned
by the Issuer or any Guarantor or any of their respective Affiliates shall be
deemed not to be outstanding. No payment of principal, interest or Make-Whole
Amount with respect to any Note held by any Guarantor (or any Affiliate of any
Guarantor) shall be made by the Issuer except to the extent otherwise permitted
by the terms of the Subordination Agreement.
Section 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), (b) by registered or certified mail with return
-
receipt requested (postage prepaid), or (c) by a recognized overnight delivery
-
service (with charges prepaid). Any such notice must be sent:
(i) if to you or your nominee, to you or it at the address specified
for such communications in Schedule A, or at such other address as you or
it shall have specified to the Issuer 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 Issuer in writing,
or
(iii) if to the Issuer, to the Issuer at its address set forth in
Exhibit 18 hereto, or at such other address as the Issuer shall have
specified to the holder of each Note in writing.
Notices under this Section 18 will be deemed given only when actually received.
Section 19. Reproduction of Documents. This Agreement, the other
-------------------------
Related Documents and all documents relating hereto and thereto, including,
without limitation, (a) consents, waivers and modifications that may hereafter
-
be executed, (b) documents received by you at the Closing (except the Notes
-
themselves), and (c) financial statements, certificates and other information
-
previously or hereafter furnished to you, may be reproduced by you by any
photographic, photostatic, microfilm, microcard, miniature photographic or other
similar process and you may destroy any original document so reproduced. The
Issuer agrees arid stipulates that, to the extent permitted by applicable law,
any such reproduction shall be admissible in evidence as the original itself in
any judicial or administrative proceeding (whether or not the original is in
existence and whether or not such reproduction was made by you in the regular
course of business) and any enlargement, facsimile or further reproduction of
such reproduction shall likewise be admissible in evidence. This Section 19
shall not prohibit the Issuer or
39
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.
Section 20. Confidential Information. For the purposes of this Section
------------------------
20, "Confidential Information" means information delivered to you by or on
behalf of the Issuer 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 in writing or
communicated orally and confirmed in writing promptly thereafter when received
by you as being confidential information of the Issuer; provided that such term
--------
does not include information that (a) was publicly known or otherwise known to
-
you prior to the time of such disclosure, (b) subsequently becomes publicly
-
known through no act or omission by you or any person acting on your behalf, (c)
-
otherwise becomes known to you other than through disclosure by the Issuer or
any Guarantor, or (d) constitutes financial statements delivered to you under
-
Section 7. 1 that are otherwise publicly available. You will maintain the
confidentiality of such Confidential Information in accordance with procedures
adopted by you in good faith to protect information of third parties delivered
to you; provided that you may deliver or disclose Confidential Information (i)
-------- -
to your directors, trustees, officers, employees, and the directors, officers
and employees of your investment advisory or management affiliate (if any), (ii)
--
to your agents, attorneys and affiliates (provided that, Confidential
--------
Information concerning the costs of manufacturing and distribution at the
Issuer's facility in McIntosh, Alabama (the "Cost of Production") will only be
disclosed or delivered to such Persons to the extent such disclosure reasonably
relates to the administration of the investment represented by your Notes),
(iii) to your financial advisors and other professional advisors (provided that,
--- --------
Confidential Information concerning the Cost of Production will only be
disclosed or delivered to such Persons who agree to hold confidential such
Confidential Information substantially in accordance with the terms of this
Section), (iv) to any other holder of any Note, (v) to any Institutional
-- -
Investor to which you sell or offer to sell such Note or any part thereof or any
participation therein (provided that, Confidential Information concerning the
--------
Cost of Production will only be disclosed or delivered to such Person if such
Person has agreed in writing prior to its receipt of such Confidential
Information to be bound by the provisions of this Section), (vi) to any Person
--
from which you offer to purchase any security of the Issuer (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), (vii) to any Federal or state
---
regulatory authority having jurisdiction over you, (viii) to the National
----
Association of Insurance Commissioners or any similar organization, or any
nationally recognized rating agency that requires access to information about
your investment portfolio or (ix) any other Person to which such delivery or
--
disclosure may be necessary
40
or appropriate (x) to effect compliance with any law, rule, regulation or order
-
applicable to you, (y) in response to any subpoena or other legal process, or
-
(z) if an Event of Default has occurred and is continuing, to the extent you may
-
reasonably determine such delivery and disclosure to be necessary or appropriate
in the enforcement or for the protection of the rights and remedies under your
Notes and this Agreement and the other Related Documents (including, but not
limited to, any litigation relating to the foregoing). 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 Issuer 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 Issuer embodying the provisions of this Section 20. This
Section 20 is intended to supersede and replace in its entirety the obligations
of any party under prior agreements relating to Confidential Information;
provided that it is understood and agreed that all information provided to you
in writing prior to the Closing shall be considered Confidential Information.
Section 21. Substitution of Purchaser. You shall have the right to
-------------------------
substitute any one of your Affiliates as the purchaser of the Notes that you
have agreed to purchase hereunder, by written notice to the Issuer, which notice
shall be signed by both you and such Affiliate, shall contain such Affiliate's
agreement to be bound by this Agreement and shall contain a confirmation by such
Affiliate of the accuracy with respect to it of the representations set forth in
Section 6. Upon receipt of such notice, wherever the word "you" is used in this
Agreement (other than in this Section 21), such word shall be deemed to refer to
such Affiliate in lieu of you. In the event that such Affiliate is so
substituted as a purchaser hereunder and such Affiliate thereafter transfers to
you all of the Notes then held by such Affiliate, upon receipt by the Issuer of
notice of such transfer, wherever the word "you" is used in this Agreement
(other than in this Section 21), such word shall no longer be deemed to refer to
such Affiliate but shall refer to you, and you shall have all the rights of an
original holder of the Notes under this Agreement.
Section 22. Miscellaneous.
-------------
Section 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 permitted successors
and permitted assigns (including, without limitation, any subsequent holder of a
Note) whether so expressed or not.
41
Section 22.2. Payments Due on Non-Business Days. Anything in this
---------------------------------
Agreement or the Notes to the contrary notwithstanding, any payment of principal
of or Make-Whole Amount or interest on any Note that is due on a date other than
a Business Day shall be made on the next succeeding Business Day without
including the additional days elapsed in the computation of the interest payable
on such next succeeding Business Day.
Section 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.
Section 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.
Section 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.
Section 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, without giving effect to its principles or
rules of conflicts of laws to the extent such principles or rules would require
the application of the laws of another jurisdiction.
Section 22.7. Submission to Jurisdiction: Waivers. The Issuer and you
-----------------------------------
hereby irrevocably and unconditionally
(a) submit in any legal action or proceeding relating to this
Agreement and the other Issuer Related Documents, or for recognition and
enforcement of any judgment in respect thereof, whether in tort or in
contract or at law or in equity, to the exclusive general jurisdiction of
the Courts of the State of
42
New York, the courts of the United States of America for the Southern
District of New York, and appellate courts from any thereof,
(b) consent that any such action or proceeding may be brought in
such courts and waive any objection that it or you may now or hereafter
have to the venue of any such action or proceeding brought in any such
Court or that such action or proceeding was brought in an inconvenient
court and agree not to plead or claim the same;
(c) agree that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail
(return receipt requested), postage prepaid, to the Issuer at its address
referred to in Exhibit 18 or at your address referred to in Schedule A or
at such other address of which the Issuer or the Noteholders shall have
been notified pursuant thereto; and
(d) agree that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to sue in any other jurisdiction.
Section 22.8. WAIVER OF JURY TRIAL. THE ISSUER AND YOU HEREBY
--------------------
IRREVOCABLY AND UNCONDITIONALLY WAIVE-TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDENG RELATING TO THIS AGREEMENT OR ANY OTHER RELATED DOCUMENT AND FOR ANY
COUNTERCLAIM THEREIN.
Section 22.9. Concerning the Collateral Agent. You hereby consent to
-------------------------------
the terms of and authorize the Collateral Agent to execute and deliver each of
the documents to be executed and delivered by it at the Closing, including,
without limitation, Supplement No. 1 to the Collateral Agreement.
* * * * *
43
If you are in agreement with the foregoing, please sign the form of
agreement on the accompanying counterpart of this Agreement and return it to the
Issuer, whereupon the foregoing shall become a binding agreement between you and
the Issuer.
Very truly yours,
SUNBELT CHLOR ALKALI
PARTNERSHIP
By: 1997 CHLORALKALI VENTURE
INC., as General Partner
By: /s/ Jean M. Miklosko
------------------------------
Name: Jean M. Miklosko
Title: Assistant Treasurer
By: OLIN SUNBELT, INC.,
as General Partner
By: /s/ Hassan Arabghani
------------------------------
Name: Hassan Arabghani
Title: VP
The foregoing is hereby
agreed to as of the
date thereof.
NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY
By:
-------------------------------
Name:
Title:
If you are in agreement with the foregoing, please sign the form of
agreement on the accompanying counterpart of this Agreement and return it to the
Issuer, whereupon the foregoing shall become a binding agreement between you and
the Issuer.
Very truly yours,
SUNBELT CHLOR ALKALI
PARTNERSHIP
By: 1997 CHLORALKALI VENTURE
INC., as General Partner
By:
------------------------------
Name:
Title:
By: OLIN SUNBELT, INC.,
as General Partner
By:
------------------------------
Name:
Title:
The foregoing is hereby
agreed to as of the
date thereof.
THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY
By: /s/ A. Kipp Koester
-------------------------------
Name: A. Kipp Koester
Title: Vice President
If you are in agreement with the foregoing, please sign the form of
agreement on the accompanying counterpart of this Agreement and return it to the
Is suer, whereupon the foregoing shall become a binding agreement between you
and the Issuer.
Very truly yours,
SUNBELT CHLOR ALKALI PARTNERSHIP
By: 1997 CHLORALKALI VENTURE
INC., as General Partner
By: /s/ Jean M. Miklosko
------------------------------
Name: Jean M. Miklosko
Title: Assistant Treasurer
By: OLIN SUNBELT, INC.,
as General Partner
By: /s/ Hassan Arabghani
------------------------------
Name: Hassan Arabghani
Title: VP
The foregoing is hereby
agreed to as of the
date thereof.
GUARDIAN LIFE INSURANCE COMPANY OF AMERICA
By:
-------------------------------
Name:
Title:
If you are in agreement with the foregoing, please sign the form of
agreement on the accompanying counterpart of this Agreement and return it to the
Issuer, whereupon the foregoing shall become a binding agreement between you and
the Issuer.
Very truly yours,
SUNBELT CHLOR ALKALI PARTNERSHIP
By: 1997 CHLORALKALI VENTURE
INC., as General Partner
By:
------------------------------
Name:
Title:
By: OLIN SUNBELT, INC.,
as General Partner
By:
------------------------------
Name:
Title:
The foregoing is hereby
agreed to as of the
date thereof.
GUARDIAN LIFE INSURANCE COMPANY OF AMERICA
By: /s/ Thomas M. Donohue
-------------------------------
Name: Thomas M. Donohue
Title: Vice President
If you are in agreement with the foregoing, please sign the form of
agreement on the accompanying counterpart of this Agreement and return it to the
Issuer, whereupon the foregoing shall become a binding agreement between you and
the Issuer.
Very truly yours,
SUNBELT CHLOR ALKALI PARTNERSHIP
By: 1997 CHLORALKALI VENTURE
INC., as General Partner
By: /s/ Jean M. Miklosko
------------------------------
Name: Jean M. Miklosko
Title: Assistant Treasurer
By: OLIN SUNBELT, INC.,
as General Partner
By: /s/ Hassan Arabghani
------------------------------
Name: Hassan Arabghani
Title: Vice President
The foregoing is hereby
agreed to as of the
date thereof.
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By:
-------------------------------
Name:
Title:
If you are in agreement with the foregoing, please sign the form of
agreement on the accompanying counterpart of this Agreement and return it to the
Issuer, whereupon the foregoing shall become a binding agreement between you and
the Issuer.
Very truly yours,
SUNBELT CHLOR ALKALI PARTNERSHIP
By: 1997 CHLORALKALI VENTURE
INC., as General Partner
By:
------------------------------
Name:
Title:
By: OLIN SUNBELT, INC.,
as General Partner
By:
------------------------------
Name:
Title:
The foregoing is hereby
agreed to as of the
date thereof.
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By: /s/ Richard E. Spencer II
-------------------------------
Name: Richard E. Spencer II
Title: Managing Director
If you are in agreement with the foregoing, please sign the form of
agreement on the accompanying counterpart of this Agreement and return it to the
Issuer, whereupon the foregoing shall become a binding agreement between you and
the Issuer.
Very truly yours,
SUNBELT CHLOR ALKALI PARTNERSHIP
By: 1997 CHLORALKALI VENTURE
INC., as General Partner
By: /s/ Jean M. Miklosko
-----------------------------
Name: Jean M. Miklosko
Title: Assistant Treasurer
By: OLIN SUNBELT, INC.,
as General Partner
By: /s/ Hassan Arabghani
-----------------------------
Name: Hassan Arabghani
Title: Vice President
The foregoing is hereby
agreed to as of the
date thereof.
MUTUAL INSURANCE COMPANY OF NEW YORK
By:
-------------------------------
Name:
Title:
If you are in agreement with the foregoing, please sign the form of
agreement on the accompanying counterpart of this Agreement and return it to the
Issuer, whereupon the foregoing shall become a binding agreement between you and
the Issuer.
Very truly yours,
SUNBELT CHLOR ALKALI PARTNERSHIP
By: 1997 CHLORALKALI VENTURE
INC., as General Partner
By:
------------------------------
Name:
Title:
By: OLIN SUNBELT, INC.,
as General Partner
By:
------------------------------
Name:
Title:
The foregoing is hereby
agreed to as of the
date thereof.
THE MUTUAL INSURANCE COMPANY OF NEW YORK
By: /s/ Barry J. Scheinholtz
------------------------------
Name: Barry J. Scheinholtz
Title: Investment Vice President
If you are in agreement with the foregoing, please sign the form of
agreement on the accompanying counterpart of this Agreement and return it to the
Issuer, whereupon the foregoing shall become a binding agreement between you and
the Issuer.
Very truly yours,
SUNBELT CHLOR ALKALI PARTNERSHIP
By: 1997 CHLORALKALI VENTURE
INC., as General Partner
By: /s/ Jean M. Miklosko
-----------------------------
Name: Jean M. Miklosko
Title: Assistant Treasurer
By: OLIN SUNBELT, INC.,
as General Partner
By: /s/ Hassan Arabghani
-----------------------------
Name: Hassan Arabghani
Title: Vice President
The foregoing is hereby
agreed to as of the
date thereof.
AID ASSOCIATION FOR LUTHERANS
By:
-------------------------------
Name:
Title:
If you are in agreement with the foregoing, please sign the form of
agreement on the accompanying counterpart of this Agreement and return it to the
Issuer, whereupon the foregoing shall become a binding agreement between you and
the Issuer.
Very truly yours,
SUNBELT CHLOR ALKALI PARTNERSHIP
By: 1997 CHLORALKALI VENTURE
INC., as General Partner
By:
------------------------------
Name:
Title:
By: OLIN SUNBELT, INC.,
as General Partner
By:
------------------------------
Name:
Title:
The foregoing is hereby
agreed to as of the
date thereof.
AID ASSOCIATION FOR LUTHERANS
By: /s/ James Abitz
------------------------------
Name: James Abitz
Title: Vice President-Investments
If you are in agreement with the foregoing, please sign the form of
agreement on the accompanying counterpart of this Agreement and return it to the
Issuer, whereupon the foregoing shall become a binding agreement between you and
the Issuer.
Very truly yours,
SUNBELT CHLOR ALKALI PARTNERSHIP
By: 1997 CHLORALKALI VENTURE
INC., as General Partner
By: /s/ Jean M. Miklosko
-----------------------------
Name: Jean M. Miklosko
Title: Assistant Treasurer
By: OLIN SUNBELT, INC.,
as General Partner
By: /s/ Hassan Arabghani
-----------------------------
Name: Hassan Arabghani
Title: Vice President
The foregoing is hereby
agreed to as of the
date thereof.
ALLSTATE LIFE INSURANCE COMPANY
By:
-------------------------------
Name:
Title: Authorized Signatory
By:
-------------------------------
Name:
Title: Authorized Signatory
If you are in agreement with the foregoing, please sign the form of
agreement on the accompanying counterpart of this Agreement and return it to the
Issuer, whereupon the foregoing shall become a binding agreement between you and
the Issuer.
Very truly yours,
SUNBELT CHLOR ALKALI PARTNERSHIP
By: 1997 CHLORALKALI VENTURE
INC., as General Partner
By:
------------------------------
Name:
Title:
By: OLIN SUNBELT, INC.,
as General Partner
By:
------------------------------
Name:
Title:
The foregoing is hereby
agreed to as of the
date thereof.
ALLSTATE LIFE INSURANCE COMPANY
By: /s/ Patricia W. Wilson
------------------------------
Name: Patricia W. Wilson
Title: Authorized Signatory
By: /s/ Ronald A. Mendel
------------------------------
Name: Ronald A. Mendel
Title: Authorized Signatory
If you are in agreement with the foregoing, please sign the form of
agreement on the accompanying counterpart of this Agreement and return it to the
Issuer, whereupon the foregoing shall become a binding agreement between you and
the Issuer.
Very truly yours,
SUNBELT CHLOR ALKALI PARTNERSHIP
By: 1997 CHLORALKALI VENTURE
INC., as General Partner
By: /S/ Jean M. Miklosko
--------------------------------
Name: Jean M. Miklosko
Title: Assistant Treasurer
By: OLIN SUBBELT, INC.,
as General Partner
By: /s/ Hassan Arabghani
--------------------------------
Name: Hassan Arabghani
Title: VP
The foregoing is hereby
agreed to as of the
date thereof.
GENERAL AMERICAN LIFE INSURANCE COMPANY
By: Conning Asset Management
By:
--------------------------------
Name:
Title:
If you are in agreement with the foregoing, please sign the form of
agreement on the accompanying counterpart of this Agreement and return it to the
Issuer, whereupon the foregoing shall become a binding agreement between you and
the Issuer.
Very truly yours,
SUNBELT CHLOR ALKALI PARTNERSHIP
By: 1997 CHLORALKALI VENTURE
INC., as General Partner
By:
--------------------------------
Name:
Title:
By: OLIN SUNBELT, INC.,
as General Partner
By:
--------------------------------
Name:
Title:
The foregoing is hereby
agreed to as of the
date thereof.
GENERAL AMERICAN LIFE INSURANCE COMPANY
By: Conning Asset Management
By: /s/ Douglas R. Koester
--------------------------------
Name: Douglas R. Koester
Title: Sr. Vice President
Conning Asset Management Co.
If you are in agreement with the foregoing, please sign the form of
agreement on the accompanying counterpart of this Agreement and return it to the
Issuer, whereupon the foregoing shall become a binding agreement between you and
the Issuer.
Very truly yours,
SUNBELT CHLOR ALKALI PARTNERSHIP
By: 1997 CHLORALKALI VENTURE
INC., as General Partner
By: /s/ Jean M. Miklosko
--------------------------------
Name: Jean M. Miklosko
Title: Assistant Treasurer
By: OLIN SUNBELT, INC.,
as General Partner
By: /s/ Hassan Arabghani
--------------------------------
Name: Hassan Arabghani
Title: VP
The foregoing is hereby
agreed to as of the
date thereof.
RGA REINSURANCE COMPANY
By: Conning Asset Management
By:
--------------------------------
Name:
Title:
If you are in agreement with the foregoing, please sign the form of
agreement on the accompanying counterpart of this Agreement and return it to the
Issuer, whereupon the foregoing shall become a binding agreement between you and
the Issuer.
Very truly yours,
SUNBELT CHLOR ALKALI PARTNERSHIP
By: 1997 CHLORALKALI VENTURE
INC., as General Partner
By:
--------------------------------
Name:
Title:
By: OLIN SUNBELT, INC.,
as General Partner
By:
--------------------------------
Name:
Title:
The foregoing is hereby
agreed to as of the
date thereof.
RGA REINSURANCE COMPANY
By: Conning Asset Management
By: /s/ Douglas R. Koester
--------------------------------
Name: Douglas R. Koester
Title: Sr. Vice President
Conning Asset Management Co.
If you are in agreement with the foregoing, please sign the form of
agreement on the accompanying counterpart of this Agreement and return it to the
Issuer, whereupon the foregoing shall become a binding agreement between you and
the Issuer.
Very truly yours,
SUNBELT CHLOR ALKALI PARTNERSHIP
By: 1997 CHLORALKALI VENTURE
INC., as General Partner
By: /s/ Jean M. Miklosko
--------------------------------
Name: Jean M. Miklosko
Title: Assistant Treasurer
By: OLIN SUNBELT, INC.,
as General Partner
By: /s/ Hassan Arabghani
--------------------------------
Name: Hassan Arabghani
Title: VP
The foregoing is hereby
agreed to as of the
date thereof.
SECURITY MUTUAL LIFE INSURANCE COMPANY OF NEW YORK
By: Conning Asset Management
By:
--------------------------------
Name:
If you are in agreement with the foregoing, please sign the form of
agreement on the accompanying counterpart of this Agreement and return it to the
Issuer, whereupon the foregoing shall become a binding agreement between you and
the Issuer.
Very truly yours,
SUNBELT CHLOR ALKALI PARTNERSHIP
By: 1997 CHLORALKALI VENTURE
INC., as General Partner
By:
--------------------------------
Name:
Title:
By: OLIN SUNBELT, INC.,
as General Partner
By:
--------------------------------
Name:
Title:
The foregoing is hereby
agreed to as of the
date thereof.
SECURITY MUTUAL LIFE INSURANCE COMPANY OF NEW YORK
By: Conning Asset Management
By: /s/ Douglas R. Koester
--------------------------------
Name: Douglas R. Koester
Sr. Vice President
Conning Asset Management Co.
If you are in agreement with the foregoing, please sign the form of
agreement on the accompanying counterpart of this Agreement and return it to the
Issuer, whereupon the foregoing shall become a binding agreement between you and
the Issuer.
Very truly yours,
SUNBELT CHLOR ALKALI PARTNERSHIP
By: 1997 CHLORALKALI VENTURE
INC., as General Partner
By: /s/ Jean M. Miklosko
--------------------------------
Name: Jean M. Mikloske
Title: Treasurer
By: OLIN SUNBELT, INC.,
as General Partner
By: /s/ Hassan Arabghani
--------------------------------
Name: Hassan Arabghani
Title: VP
The foregoing is hereby
agreed to as of the
date thereof.
JEFFERSON-PILOT LIFE INSURANCE COMPANY
By:
--------------------------------
Name:
Title:
If you are in agreement with the foregoing, please sign the form of
agreement on the accompanying counterpart of this Agreement and return it to the
Issuer, whereupon the foregoing shall become a binding agreement between you and
the Issuer.
Very truly yours,
SUNBELT CHLOR ALKALI PARTNERSHIP
By: 1997 CHLORALKALI VENTURE
INC., as General Partner
By:
--------------------------------
Name:
Title:
By: OLIN SUNBELT, INC.,
as General Partner
By:
--------------------------------
Name:
Title:
The foregoing is hereby
agreed to as of the
date thereof.
JEFFERSON-PILOT LIFE INSURANCE COMPANY
By: /s/ Janes E. McDonald
--------------------------------
Name: James E. McDonald, Jr.
Title: Second Vice President - Securities