Exhibit 10.29
CONFORMED COPY
================================================================================
HEWITT PROPERTIES IV LLC
$85,000,000
7.13% Secured Credit Tenant Notes due February 27, 2020
----------------
NOTE PURCHASE AGREEMENT
----------------
Dated as of April 22,1999
PPN: 42822@ AA 4
================================================================================
TABLE OF CONTENTS
1. AUTHORIZATION OF NOTES; SECURITY..........................................1
2. SALE AND PURCHASE OF NOTES................................................2
3. CLOSING...................................................................2
4. CONDITIONS TO CLOSING.....................................................2
4.1. Representations and Warranties...................................2
4.2. Performance; No Default..........................................2
4.3. Compliance Certificates..........................................3
4.4. Opinions of Counsel..............................................3
4.5. Purchase Permitted By Applicable Law, etc........................3
4.6. Sale of Other Notes..............................................3
4.7. Payment of Special Counsel Fees..................................4
4.8. Private Placement Number.........................................4
4.9. Changes in Organizational Structure..............................4
4.10. Operative Agreements.............................................4
4.11. Filing and Recording.............................................4
4.12. Title Insurance Policy...........................................4
4.13. Environmental Reliance Letter....................................5
4.14. Proceedings and Documents........................................5
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE TENANT..............5
5.1. Organization; Power and Authority................................5
5.2. Authorization, etc...............................................5
5.3. Disclosure.......................................................6
-i-
5.4. No Company Subsidiaries; Organization and Ownership of Shares
of Subsidiaries; Affiliates......................................6
5.5. Financial Statements.............................................7
5.6. Compliance with Laws, Other Instruments, etc.....................7
5.7. Governmental Authorizations, etc.................................8
5.8. Litigation; Observance of Agreements, Statutes and Orders........8
5.9. Taxes............................................................8
5.10. Title to Property; Leases........................................9
5.11. Licenses, Permits, etc...........................................9
5.12. Compliance with ERISA............................................9
5.13. Private Offering by the Company.................................11
5.14. Use of Proceeds; Margin Regulations.............................11
5.15. Existing Indebtedness; Future Liens.............................11
5.16. Foreign Assets Control Regulations, etc.........................11
5.17. Status under Certain Statutes...................................12
5.18. Environmental Matters...........................................12
5.19. Security Documents..............................................12
5.20. Assignments.....................................................13
6. REPRESENTATIONS OF THE PURCHASER.........................................13
6.1. Purchase for Investment.........................................13
6.2. Source of Funds.................................................13
7. INFORMATION AS TO COMPANY AND TENANT.....................................14
7.1. Financial and Business Information..............................14
7.2. Officer's Certificate...........................................17
7.3. Inspection......................................................17
-ii-
8. PREPAYMENT OF THE NOTES..................................................18
8.1. Required Prepayments............................................18
8.2. Extraordinary Required Prepayments..............................19
8.3. Optional Prepayments with Make-Whole Amount.....................19
8.4. Allocation of Partial Prepayments...............................20
8.5. Maturity; Surrender, etc........................................20
8.6. Purchase of Notes...............................................20
8.7. Make-Whole Amount...............................................20
9. AFFIRMATIVE COVENANTS....................................................22
9.1. Compliance with Law.............................................22
9.2. Insurance.......................................................22
9.3. Maintenance of Properties.......................................22
9.4. Payment of Taxes and Claims.....................................22
9.5. Existence, etc..................................................23
9.6. Nature of Business..............................................23
9.7. Compliance with Terms of Operative Agreements...................23
10. NEGATIVE COVENANTS.......................................................23
10.1. Transactions with Affiliates....................................23
10.2. Merger, Consolidation, etc......................................24
10.3. Consolidated Net Capital........................................25
10.4. Funded Indebtedness.............................................25
10.5. Current Indebtedness............................................25
10.6. Indebtedness of Restricted Subsidiaries.........................25
10.7. Liens...........................................................26
10.8. Lease Amendments................................................27
-iii-
10.9. Sale of Assets..................................................27
10.10. Restricted Subsidiary Stock.....................................28
10.11. Distributions...................................................28
10.12. Amendments to Articles of Organization and Operating Agreement..28
10.13. Change in Business..............................................29
10.14. Permitted Investments...........................................29
11. EVENTS OF DEFAULT........................................................29
12. REMEDIES ON DEFAULT, ETC.................................................31
12.1. Acceleration....................................................31
12.2. Other Remedies..................................................32
12.3. Rescission......................................................32
12.4. No Waivers or Election of Remedies, Expenses, etc...............33
13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES. i.........................33
13.1. Registration of Notes...........................................33
13.2. Transfer and Exchange of Notes..................................33
13.3. Replacement of Notes............................................34
14. PAYMENTS ON NOTES........................................................34
14.1. Place of Payment................................................34
14.2. Home Office Payment.............................................34
15. EXPENSES, ETC............................................................35
15.1. Transaction Expenses............................................35
15.2. Survival........................................................35
16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT.............36
17. AMENDMENT AND WAIVER.....................................................36
17.1. Requirements....................................................36
-iv-
17.2. Solicitation of Holders of Notes................................36
17.3. Binding Effect, etc.............................................37
17.4. Notes held by Company or the Tenant, etc........................37
18. NOTICES..................................................................37
19. REPRODUCTION OF DOCUMENTS................................................38
20. CONFIDENTIAL INFORMATION.................................................38
21. SUBSTITUTION OF PURCHASER................................................39
22. MISCELLANEOUS............................................................39
22.1. Successors and Assigns..........................................39
22.2. Payments Due on Non-Business Days...............................40
22.3. Severability....................................................40
22.4. Construction....................................................40
22.5. Counterparts....................................................40
22.6. Governing Law...................................................40
SCHEDULE A -- INFORMATION RELATING TO PURCHASERS
SCHEDULE B -- DEFINED TERMS
SCHEDULE C -- EXISTING INVESTMENTS
SCHEDULE 4.9 -- Changes in Corporate Structure
SCHEDULE 5.3 -- Disclosure Materials
SCHEDULE 5.4 -- Subsidiaries of the Tenant and Ownership of Subsidiary Stock
SCHEDULE 5.5 -- Financial Statements
SCHEDULE 5.8 -- Certain Litigation
SCHEDULE 5.11 -- Patents, etc.
SCHEDULE 5.14 -- Use of Proceeds
-v-
SCHEDULE 5.15 -- Existing Indebtedness
SCHEDULE 8.1 -- Required Prepayments
SCHEDULE 10.7 -- Liens
EXHIBIT 1 -- Form of Secured Credit Tenant Note due February 27, 2020
EXHIBIT 4.4(a) -- Form of Legal Opinion of Counsel for the Company
EXHIBIT 4.4(b) -- Form of Legal Opinion of Special Counsel for the Purchasers
-vi-
HEWITT PROPERTIES IV LLC
100 Half Day Road
Lincolnshire, Illinois 60069
7.13% Secured Credit Tenant Notes due February 27, 2020
as of April 22, 1999
TO EACH OF THE PURCHASERS LISTED IN
THE ATTACHED SCHEDULE A:
Ladies and Gentlemen:
HEWITT PROPERTIES IV LLC, a limited liability company
organized under the laws of Illinois (the "Company"), and, for purposes of
Sections 4, 5, 7, 9, 10, 11 and 17 only, Hewitt Associates, LLC, a limited
liability company organized under the laws of Illinois, 100 Half Day Road,
Lincolnshire, Illinois 60069 (the "Tenant") agree with you as follows:
1. AUTHORIZATION OF NOTES; SECURITY
The Company will authorize the issue and sale of $85,000,000
aggregate principal amount of its Secured Credit Tenant Notes due February 27,
2020 (the "Notes", such term to include any such notes issued in substitution
therefor pursuant to Section 13 of this Agreement). The funding of the Notes
will take place on May 12, 1999. The Notes issued on this date shall bear
interest at 7.13%. The interest rates on the Notes may be subject to upward
adjustment as set forth in Schedule 8.1. The Notes shall be substantially in the
form set out in Exhibit 1, with such changes therefrom, if any, as may be
approved by you and the Company. Certain capitalized terms used in this
Agreement are defined in Schedule B; references to a "Schedule" or an "Exhibit"
are, unless otherwise specified, to a Schedule or an Exhibit attached to this
Agreement.
The Notes and this Agreement will be secured by and entitled
to the benefits of (a) the Mortgages, (b) the Assignments of Leases and Rents,
and (c) the Subordination Agreements, each of which will be in the form and
substance satisfactory to you and your special counsel. Prior to Final Project
Completion at the Florida Property and the Texas Property, the Notes, this
Agreement and the Security Documents will be secured by and entitled to the
benefits of the Interim Guaranty pursuant to which the Guarantor will
irrevocably guarantee all of the Company's payment and performance obligations
under the Notes, this Agreement and the Security Documents.
The Company is constructing the Property which, pursuant to
the Leases, will be triple-net leased to Tenant for a term at least
contemporaneous with the maturity of the Notes. Payments by Tenant under the
Leases will be sufficient to cover (i) all costs associated with the Property
and (ii) all payments of principal, interest and Make-Whole Amounts, if any, on
the Notes. Tenant's lease payments will be paid directly to the Collateral and
Paying Agent, who will, pursuant to the Collateral Agency and Paying Agreement,
make payments on the Notes to the holders of the Notes.
-1-
2. SALE AND PURCHASE OF NOTES.
Subject to the terms and conditions of this Agreement, the
Company will issue and sell to you and you will purchase from the Company, at
the Closing, Notes in the principal amount specified opposite your name in
Schedule A at the purchase price of 100% of the principal amount thereof. You
are referred to herein as a "Purchaser" and, together with the other purchasers
named in Schedule A hereto, as the "Purchasers." Your obligation hereunder and
the obligations of the other Purchasers are several and not joint obligations
and you shall have no obligation hereunder and no liability to any Person for
the performance or nonperformance by any other Purchaser thereunder.
3. CLOSING.
The sale and purchase of the Notes to be purchased by you and
the other Purchasers shall occur at the offices of Gardner, Carton & Douglas,
321 N. Clark, Suite 3400, Chicago, Illinois 60610-4795, at a closing (the
"Closing") on May 12, 1999, or on such other Business Day thereafter on or prior
to May 12, 1999, as may be agreed upon by the Company and you and the other
Purchasers. At the Closing, the Company will deliver to you the Notes to be
purchased by you in the form of a single Note (or such greater number of Notes
in denominations of at least $100,000 as you may request) dated the date of the
Closing and registered in your name (or in the name of your nominee), against
delivery by you to the Company or its order of immediately available funds in
the amount of the purchase price therefor by wire transfer of immediately
available funds for the account of the Company to account number 285-402-4 at
Harris Trust and Savings Bank, 111 W. Monroe Street, P.O. Box 755, Chicago, IL
60690-0755, ABA #071000288. If at the Closing the Company shall fail to tender
such Notes to you as provided above in this Section 3, or any of the conditions
specified in Section 4 shall not have been fulfilled to your satisfaction, you
shall, at your election, be relieved of all further obligations under this
Agreement, without thereby waiving any rights you may have by reason of such
failure or such nonfulfillment.
4. CONDITIONS TO CLOSING.
Your obligation to purchase and pay for the Notes to be sold
to you at the Closing is subject to the fulfillment to your satisfaction, prior
to or at the Closing, of the following conditions:
4.1. Representations and Warranties.
The representations and warranties of the Company and the
Tenant in this Agreement and in the other Operative Agreements shall be correct
when made and at the time of the Closing.
4.2. Performance; No Default.
Each of the Company and the Tenant shall have performed and
complied with all agreements and conditions contained in this Agreement and the
other Operative Agreements 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
-2-
Schedule 5.14) no Default or Event of Default shall have occurred and be
continuing. None of the Company, the Tenant or any Subsidiary shall have entered
into any transaction since the date of the Memorandum that would have been
prohibited by Sections 10.1 through 10.11 hereof had the Sections 10.1 through
10.11 applied since such date.
4.3. Compliance Certificates.
(a) Officer's Certificate. Each of the Company and the
Tenant shall have delivered to you an Officer's Certificate, dated the
date of the Closing, certifying that the conditions specified in
Sections 4.1, 4.2 and 4.9 have been fulfilled.
(b) Secretary's Certificate. Each of the Company and the
Tenant shall have delivered to you a certificate certifying as to the
resolutions attached thereto and other organizational proceedings
relating to the authorization, execution and delivery of the Operative
Documents to which it is a party.
4.4. Opinions of Counsel.
You shall have received opinions in form and substance
satisfactory to you, dated the date of the Closing (a) from C. Lawrence Connolly
III, Esq., Foley & Lardner and Mayer, Brown & Platt, counsel, special Florida
counsel and special Texas counsel, respectively, for the Company, the Tenant and
the Guarantor covering the matters set forth in Exhibit 4.4(a) and covering such
other matters incident to the transactions contemplated hereby as you or your
counsel may reasonably request (and the Company hereby instructs its counsel to
deliver such opinion to you) and (b) from Gardner, Carton & Douglas, your
special counsel in connection with such transactions, substantially in the form
set forth in Exhibit 4.4(b) and covering such other matters incident to such
transactions as you may reasonably request.
4.5. Purchase Permitted By Applicable Law, etc.
On the date of the Closing your purchase of Notes shall (i) be
permitted by the laws and regulations of each jurisdiction to which you are
subject, without recourse to provisions permitting limited investments by
insurance companies without restriction as to the character of the particular
investment, (ii) not violate any applicable law or regulation (including,
without limitation. Regulation G, T or X of the Board of Governors of the
Federal Reserve System) and (iii) not subject you to any tax, penalty or
liability under or pursuant to any applicable law or regulation, which law or
regulation was not in effect on the date hereof. If requested by you, you shall
have received an Officer's Certificate certifying as to such matters of fact as
you may reasonably specify to enable you to determine whether such purchase is
so permitted.
4.6. Sale of Other Notes.
Contemporaneously with the Closing the Company shall sell to
the other Purchasers and the other Purchasers shall purchase the Notes to be
purchased by them at the Closing as specified in Schedule A.
-3-
4.7. Payment of Special Counsel Fees.
Without limiting the provisions of Section 15.1, the Company
shall have paid on or before the Closing the reasonable fees, charges and
disbursements of your special counsel referred to in Section 4.4 to the extent
reflected in a statement of such counsel rendered to the Company at least one
Business Day prior to the Closing.
4.8. Private Placement Number.
A Private Placement number issued by Standard & Poor's CUSIP
Service Bureau (in cooperation with the Securities Valuation Office of the
National Association of Insurance Commissioners) shall have been obtained for
the Notes.
4.9. Changes in Organizational Structure.
Except as specified in Schedule 4.9, neither the Company nor
the Tenant shall have changed its jurisdiction of formation or been a party to
any merger or consolidation or shall have succeeded to all or any substantial
part of the liabilities of any other entity, at any time following the date of
the most recent financial statements referred to in Schedule 5.5 or delivered
pursuant to Section 7.1(a) and (b) hereof.
4.10. Operative Agreements.
The Operative Agreements shall be in form and substance
satisfactory to you and your special counsel, shall have been duly executed and
delivered by the parties thereto and, if appropriate duly filed or recorded of
record and shall be in full force and effect and you shall have received true,
correct and complete copies of each of them. In connection with the Operative
Agreements, the Company shall have delivered to you such title policies,
surveys, environmental audits, UCC searches, financing statements and other
items as shall be reasonably requested by you and which shall be reasonably
satisfactory to you and your special counsel.
4.11. Filing and Recording.
The Security Documents (and/or financing statements or similar
notices thereof if and to the extent permitted or required by applicable law)
and reciprocal easement and use agreements in form reasonably satisfactory to
you and your special counsel shall have been recorded or filed for record in
such public offices as may be deemed necessary or appropriate by you or your
special counsel in order to perfect the Liens and security interests granted or
conveyed thereby.
4.12. Title Insurance Policy.
Prior to the Closing Date, the Company shall have obtained
from a title insurance company of national standing and reasonably satisfactory
to you and your special counsel (the "Title Company") a policy of mortgage title
insurance in the standard ALTA or comparable form mortgage, title insurance
policy (Loan Policy - 1992 Form (with the creditors' rights exception from
coverage excluded) with a lender's comprehensive or like endorsement, an ALTA
3.1 zoning endorsement, an usury endorsement and such other endorsements as you
or
-4-
your special counsel deem reasonably necessary or appropriate) and otherwise in
form and substance reasonably satisfactory to you and your special counsel in an
aggregate amount not less than the aggregate principal amount of the Notes,
covering the Property and showing good and indefeasible fee title in the
Property to be vested in the Company subject only to (a) the Lien of the
Security Documents, (b) Liens otherwise permitted by the Security Documents and
(c) such other exceptions as shall be satisfactory to you and your special
counsel and insuring the first lien position of the Mortgage.
4.13. Environmental Reliance Letter.
You shall have received from Universal Engineering Sciences,
Inc. of Orlando, Florida and HBC Engineering, Inc. of Houston, Texas, agreements
in forth and substance reasonably satisfactory to you and your special counsel
stating that the holders of the Notes may rely on the information contained in
their respective Phase 1 environmental site assessments for the Property dated
April, 1999 and April 22, 1999, respectively.
4.14. Proceedings and Documents.
All authorizations and other proceedings in connection with
the transactions contemplated by this Agreement, the Notes and the Operative
Agreements and all documents and instruments incident to such transactions shall
be satisfactory to you and your special counsel, and you and your special
counsel shall have received all such counterpart originals or certified or other
copies of such documents as you or they may reasonably request.
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE TENANT.
Each of the Company and the Tenant severally represent and
warrant to you that:
5.1. Organization; Power and Authority.
Each of the Company and the Tenant is a limited liability
company duly organized, validly existing and in good standing under the laws of
the State of Illinois, and is duly qualified as a foreign limited liability
company and is in good standing in each jurisdiction in which such qualification
is required by law, other than those jurisdictions as to which the failure to be
so qualified or in good standing could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. Each of the Company
and the Tenant has the requisite 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,
the Operative Agreements to which it is a party and, in the case of the Company,
the Notes, and to perform the provisions hereof and thereof.
5.2. Authorization, etc.
(a) This Agreement, the Operative Agreements to which it
is a party and the Notes have been duly authorized by all necessary
action on the part of the Company as required by the Operating
Agreement and the Company's articles of organization, and this
Agreement and the Operative Agreements to which the Company is a party
constitute,
-5-
and upon execution and delivery thereof each Note will constitute, a
legal, valid and binding obligation of the Company enforceable against
the Company in accordance with its terms, except as such enforceability
may be limited by (i) applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and (ii) general principles
of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(b) This Agreement and the Operative Agreements to which
the Tenant is a party have been duly authorized by all necessary action
on the part of the Tenant as required by the Tenant Operating Agreement
and Tenant's articles of organization, and this Agreement and the
Operative Agreements to which the Tenant is a party constitute a legal,
valid and binding obligation of the Tenant enforceable against the
Tenant in accordance with its terms, except as such enforceability may
be limited by (i) applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of
creditors' rights generally and (ii) general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law).
5.3. Disclosure.
The Company, through its agent, NationsBanc Montgomery
Securities, LLC, has delivered to you and each other Purchaser a copy of a
Private Placement Memorandum, dated March, 1999, (the "Memorandum"), relating to
the transactions contemplated hereby. The Memorandum fairly describes, in all
material respects, the general nature of the business and principal properties
of the Company, the Tenant and the Tenant's Subsidiaries. Except as disclosed in
Schedule 5.3, this Agreement, the Memorandum, the documents, certificates or
other writings delivered to you by or on behalf of the Company in connection
with the transactions contemplated hereby and the financial statements listed in
Schedule 5.5, taken as a whole, do not contain any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein not misleading in light of the circumstances under which they
were made. Except as disclosed in the Memorandum or as expressly described in
Schedule 5.3, or in one of the documents, certificates or other writings
identified therein, or in the financial statements listed in Schedule 5.5, since
December 31, 1998 there has .been no change in the financial condition,
operations, business, properties or prospects of the Company the Tenant or any
Subsidiary thereof except changes that individually or in the aggregate could
not reasonably be expected to have a Material Adverse Effect. There is no fact
known to the Company or the Tenant that could reasonably be expected to have a
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 Company or the Tenant specifically for use in connection
with the transactions contemplated hereby.
5.4. No Company Subsidiaries; Organization and Ownership of Shares
of Subsidiaries; Affiliates.
(a) The Company has no Subsidiaries. Schedule 5.4
contains (except as noted therein) complete and correct lists (i) of
the Company's Affiliates and (ii) the Company's Manager and senior
officers.
-6-
(b) Schedule 5.4 contains (except as noted therein)
complete and correct lists (i) of the Tenant's Subsidiaries, showing,
as to each such Subsidiary, the correct name thereof, the jurisdiction
of its organization, and the percentage of shares of each class of its
capital stock or similar equity interests outstanding owned by the
Tenant and each other Subsidiary, (ii) of the Tenant's Affiliates,
other than Subsidiaries, and (iii) of the Tenant's Manager and senior
officers.
(c) All of the outstanding shares of capital stock or
similar equity interests of each Subsidiary shown in Schedule 5.4 as
being owned by the Tenant and its Subsidiaries have begin validly
issued, are fully paid and nonassessable anti are owned by the Tenant
or another Subsidiary free and clear of any Lien (except as otherwise
disclosed in Schedule 5.4).
(d) Each Subsidiary identified in Schedule 5.4 is a
corporation, limited liability company or other legal entity duly
organized, validly existing and in good standing under the laws of its
jurisdiction of organization, and is duly qualified as a foreign
corporation or other legal entity and is in good standing in each
jurisdiction in which such qualification is required by law, other than
those jurisdictions as to which the failure to be so qualified or in
good standing could not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect. Each such Subsidiary has
the corporate or other power and authority to own or hold under lease
the properties it purports to own or hold under lease and to transact
the business it transacts and proposes to transact.
(e) No Subsidiary is a party to, or otherwise subject to
any legal restriction or any agreement (other than this Agreement, the
agreements listed on Schedule 5.4 and customary limitations imposed by
corporate law statutes) restricting the ability of such Subsidiary to
pay dividends out of profits or make any other similar distributions of
profits to the Tenant or any of its Subsidiaries that owns outstanding
shares of capital stock or similar equity interests of such Subsidiary.
5.5. Financial Statements.
The Company and the Tenant have delivered to each Purchaser
copies of the consolidated financial statements of the Tenant and the
Subsidiaries and the financial statements of the Company listed on Schedule 5.5.
All of said financial statements (including in each case the related schedules
and notes) fairly present in all material respects the financial position of the
Company, the Tenant and the Subsidiaries as of the respective dates specified in
such Schedule and the results of their operations and cash flows for the
respective periods so specified and have been prepared in accordance with GAAP
consistently applied throughout the periods involved except as set forth in any
notes thereto (subject, in the case of any interim financial statements, to
normal year-end adjustments).
5.6. Compliance with Laws, Other Instruments, etc.
The execution, delivery and performance by the Company and the
Tenant of this Agreement, the Operative Agreements to which the Company or the
Tenant is a party and, in the
-7-
case of the Company, the Notes will not (i) contravene, result in any breach of,
or constitute a default under, or result in the creation of any Lien (other than
the Liens contemplated by the Operative Agreements) in respect of any property
of the Company, the Tenant or any Subsidiary under, any indenture, mortgage,
deed of trust, loan, purchase or credit agreement, lease, operating agreement,
articles of organization, corporate charter or by-laws, or any other agreement
or instrument to which the Company, the Tenant or any Subsidiary is bound or by
which the Company, the Tenant or any Subsidiary or any of their respective
properties may be bound or affected, (ii) conflict with or result in a breach of
any of the terms, conditions or provisions of any order, judgment, decree, or
ruling of any court, arbitrator or Governmental Authority applicable to the
Company, the Tenant or any Subsidiary or (iii) violate any provision of any
statute or other rule or regulation of any Governmental Authority applicable to
the Company, the Tenant or any Subsidiary. The Company is not in default or in
violation of any Material term or provision of its Operating Agreement. The
Tenant is not in default or in violation of any Material term or provision of
the Tenant Operating Agreement.
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 Company or the Tenant of this
Agreement, the Operative Agreements to which the Company or the Tenant is a
party or, in the case of the Company, the Notes, other than customary filings
and/or recordings of certain of the Security Documents.
5.8. Litigation; Observance of Agreements, Statutes and Orders.
(a) Except as disclosed in Schedule 5.8, there are no
actions, suits or proceedings pending or, to the knowledge of the
Company or the Tenant, threatened against or affecting the Company, the
Tenant or any Subsidiary or any property of the Company, the Tenant or
any Subsidiary in any court or before any arbitrator of any kind or
before or by any Governmental Authority that; individually or in the
aggregate, could reasonably be expected to have a Material Adverse
Effect.
(b) None of the Company, the Tenant or any Subsidiary is
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 a Material Adverse
Effect.
5.9. Taxes.
The Company, the Tenant and the Subsidiaries have filed all
Tax Returns that are required to have been filed in any jurisdiction and sent
all Tax Returns to any party as required under applicable law or regulation, and
have paid all Taxes shown to be due and payable on such returns and all other
Taxes to the extent such Taxes have become due and payable and before they have
become delinquent, except for any Taxes (i) the amount of which is not
individually or
-8-
in the aggregate Material or (ii) the amount, applicability or validity of which
is currently being contested in good faith by appropriate proceedings and with
respect to which the Company, the Tenant or a Subsidiary, as the case may be,
has established adequate reserves in accordance with GAAP. Neither the Company
nor the Tenant knows of any basis for any Tax that could reasonably be expected
to have a Material Adverse Effect. The charges, accruals and reserves on the
books of the Company, the Tenant and the Subsidiaries in respect of Taxes for
all fiscal periods are adequate. Each of the Company and the Tenant is properly
treated as a partnership for, and is not taxable as, a corporation for Federal
income tax purposes.
5.10. Title to Property; Leases.
The Company, the Tenant and the Subsidiaries have good and
sufficient title to their respective properties that individually or in the
aggregate are Material, including all such properties reflected in the most
recent audited balance sheet referred to in Section 5.5 or purported to have
been acquired by the Company, the Tenant or any Subsidiary after said date
(except as sold or otherwise disposed of in the ordinary course of business), in
each case free and clear of Liens prohibited by this Agreement or the other
Operative Agreements. The Leases and all leases that individually or in the
aggregate are Material are valid and subsisting and are in full force and effect
in all material respects.
5.11. Licenses, Permits, etc.
Except as disclosed in Schedule 5.11,
(a) the Company, the Tenant and the Subsidiaries own or
possess 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 Company and the Tenant,
no product of the Company or the Tenant 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; and
(c) to the best knowledge of the Company and the Tenant,
there is no Material violation by any Person of any right of the
Company, the Tenant or any of its Subsidiaries with respect to any
patent, copyright, service mark, trademark, trade name or other right
owned or used by the Company, the Tenant or any of its Subsidiaries.
5.12. Compliance with ERISA.
(a) The Company, the Tenant and each ERISA Affiliate have
operated and administered each Plan in compliance with all applicable
laws except for such instances of noncompliance as have not resulted in
and could not reasonably be expected to result in a Material Adverse
Effect. None of the Company, the Tenant or any ERISA Affiliate has
incurred any liability pursuant to Title I or IV of ERISA or the
penalty or excise tax provisions of the Code relating to employee
benefit plans (as defined in Section 3 of ERISA), and no event,
transaction or condition has occurred or exists that could
-9-
reasonably be expected to result in the incurrence of any such
liability by the Company, the Tenant or any ERISA Affiliate, or in the
imposition of any Lien on any of the rights, properties or assets of
the Company, the Tenant or any ERISA Affiliate, in either case pursuant
to Title I or IV of ERISA or to such penalty or excise tax provisions
or to Section 401(a)(29) or 412 of the Code, other than such
liabilities or Liens as would not be individually or in the aggregate
Material.
(b) The present value of the aggregate benefit
liabilities under each of the Plans (other than Multiemployer Plans),
determined as of the end of such Plan's most recently ended plan year
on the basis of the actuarial assumptions specified for funding
purposes in such Plan's most recent actuarial valuation report, did not
exceed the aggregate current value of the assets of such Plan allocable
to such benefit liabilities by more than $500,000 in the case of any
single Plan and by more than $500,000 in the aggregate for all Plans.
The term "benefit liabilities" has the meaning specified in section
4001 of ERISA and the terms "current value" and "present value" have
the meaning specified in section 3 of ERISA.
(c) The Company, the Tenant and the ERISA Affiliates have
not incurred withdrawal liabilities (and are not subject to contingent
withdrawal liabilities) under section 4201 or 4204 of ERISA in respect
of Multiemployer Plans that individually or in the aggregate are
Material.
(d) The accumulated postretirement benefit obligation
(determined as of September 30, 1998 in accordance with Financial
Accounting Standards Board Statement No. 106, without regard to
liabilities attributable to continuation coverage mandated by section
4980B of the Code) of the Company, the Tenant and the Subsidiaries does
not exceed $5,000,000.
(e) The execution and delivery of this Agreement and the
Operative Agreements and the issuance and sale of the Notes will not
involve any transaction that is subject to the prohibitions of section
406 of ERISA or in connection with which a tax could be imposed
pursuant to section 4975(c)(1)(A)-(D) of the Code. The representation
by the Company and the Tenant in the first sentence of this Section
5.12(e) is made in reliance upon and subject to the accuracy of your
representation in Section 6.2 as to the sources of the funds used to
pay the purchase price of the Notes to be purchased by you.
(f) All Foreign Pension Plans have been established,
operated, administered and maintained in compliance with all laws,
regulations and orders applicable thereto except for such failures to
comply that, in the aggregate for all such failures, could not
reasonably be expected to have a Material Adverse Effect. All premiums,
contributions and any other amounts required by applicable Foreign
Pension Plan documents or applicable laws have been paid or accrued as
required, except for premiums, contributions and amounts that, in the
aggregate for all such obligations, could not reasonably be expected to
have a Material Adverse Effect.
-10-
5.13. Private Offering by the Company.
Neither the Company nor anyone acting on its behalf has
offered the Notes or any similar securities for sale to, or solicited any offer
to buy any of the same from, or otherwise approached or negotiated in respect
thereof with more than 26 Institutional Investors (excluding the Purchasers),
each of which has been offered the Notes at a private sale for investment.
Neither the Company nor anyone acting on its behalf has taken, or will take, any
action that would subject the issuance or sale of the Notes to the registration
requirements of Section 5 of the Securities Act.
5.14. Use of Proceeds; Margin Regulations.
The Company will apply the proceeds of the sale of the Notes
as set forth in Schedule 5.14. No part of the proceeds from the sale of the
Notes hereunder will be used, directly or indirectly, for the purpose of buying
or carrying any margin stock within the meaning of Regulation G of the Board of
Governors of the Federal Reserve System (12 CFR 207), or for the purpose of
buying or carrying or trading in any securities under such circumstances as to
involve the Company in a violation of Regulation X of said Board (12 CFR 224) or
to involve any broker or dealer in a violation of Regulation T of said Board (12
CFR 220). The Company, as of the date of Closing, owns no margin stock and the
Company does not have any present intention that margin stock will constitute
more than 5% of the value of the consolidated assets of the Company. As used in
this Section, the terms "margin stock" and "purpose of buying or carrying" shall
have the meanings assigned to them in said Regulation G.
5.15. Existing Indebtedness; Future Liens.
(a) Except as described therein, Schedule 5.15 sets forth
a complete and correct list of all outstanding Indebtedness of the
Company, the Tenant and the Subsidiaries as of the date of Closing.
None of the Company, the Tenant or any Subsidiary is in default and no
waiver of default is currently in effect, in the payment of any
principal or interest on any Indebtedness of the Company, the Tenant or
such Subsidiary and no event or condition exists with respect to any
Indebtedness of the Company, the Tenant or any Subsidiary that would
permit (or that with notice or the lapse of time, or both, would
permit) one or more Persons to cause such Indebtedness to become due
and payable before its stated maturity or before its regularly
scheduled dates of payment.
(b) Except as disclosed in Schedule 5.15, none of the
Company, the Tenant or any Subsidiary has agreed or consented to cause
or permit in the future (upon the happening of a contingency or
otherwise) any of its property, whether now owned or hereafter
acquired, to be subject to a Lien not permitted by Section 10.7.
5.16. Foreign Assets Control Regulations, etc.
Neither the sale of the Notes by the Company hereunder nor its
use of the proceeds thereof will cause the Company to violate the Trading with
the Enemy Act, as amended, or any of the foreign assets control regulations of
the United States Treasury
-11-
Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling
legislation or executive order relating thereto.
5.17. Status under Certain Statutes.
None of the Company, the Tenant or any Subsidiary is subject
to regulation under the Investment Company Act of 1940 (except with respect to
certain investment advisory services performed by the Tenant), 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.
5.18. Environmental Matters.
None of the Company, the Tenant or any Subsidiary has
knowledge of any claim or has received any notice of any claim, and no
proceeding has been instituted raising any claim against the Company, the Tenant
or any of the Subsidiaries or any of their respective real properties now or
formerly owned, leased or operated by any of them 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 a Material
Adverse Effect. Except as otherwise disclosed to you in the Phase 1
environmental site assessments described in Section 4.13 hereof;
(a) one of the Company, the Tenant or any Subsidiary has
knowledge of any facts which would ,give rise to any claim, public or
private, of violation of Environmental Laws or damage to the
environment emanating from, occurring on or in any way related to real
properties now or formerly owned, leased or operated by any of them or
to other assets or their use, except, in each case, such as could not
reasonably be expected to result in a Material Adverse Effect;
(b) one of the Company, the Tenant or any of the
Subsidiaries has stored any Hazardous Materials on real properties now
or formerly owned, leased or operated by any of them and has not
disposed of any Hazardous Materials in a manner contrary to any
Environmental Laws in each case in any manner that could reasonably be
expected to result in a Material Adverse Effect; and
(c) all buildings on all real properties now owned,
leased or operated by the Company, the Tenant or any of the
Subsidiaries are in compliance with applicable Environmental Laws,
except where failure to comply could not reasonably be expected to
result in a Material Adverse Effect.
5.19. Security Documents.
The Mortgages are effective to grant to the Collateral and
Paying Agent, as agent on behalf of the Purchasers, a legal, valid and
enforceable first mortgage Lien on the Property. Upon recording with and payment
of recording fees to the Montgomery County, Texas Recorder of Deeds and the
Public Records of Orange County, Florida, the Collateral and Paying Agent, as
agent, for the Purchasers, will have a fully perfected first priority Lien on
the Property subject only to Liens permitted under Section 10.7 of this
Agreement.
-12-
5.20. Assignments.
The Assignments of Leases and Rents are effective to assign to
the Collateral and Paying Agent, on behalf of the holders of the Notes, the
rights of the Company and the payments due to the Company under the Leases. Upon
recording with and payment of recording fees to the Montgomery County, Texas
Recorder of Deeds and the Public Records of Orange County, Florida there will be
a fully perfected first position assignment of leases and rents.
6. REPRESENTATIONS OF THE PURCHASER.
6.1. Purchase for Investment.
You represent that you are purchasing the Notes for your own
account or for one or more separate accounts maintained by you or for the
account of one or more pension or trust funds and not with a view to the
distribution thereof, provided that the disposition of your or their property
shall at all times be within your or their control. You understand that the
Notes have not been registered under the Securities Act and may be resold only
if registered pursuant to the provisions of the Securities Act or if an
exemption from registration is available, except under circumstances where
neither such registration nor such an exemption is required by law, and that the
Company is not required to register the Notes.
6.2. Source of Funds.
You represent that at least one of the following statements is
an accurate representation as to each source of funds (a "Source") to be used by
you to pay the purchase price of the Notes to be purchased by you hereunder:
(a) f 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;
(b) he Source is either (i) an insurance company pooled
separate account, within the meaning of Prohibited Transaction
Exemption ("PTE") 90-1 (issued January 29, 1990), or (ii) a bank
collective investment fund, within the meaning of the PTE 91-38 (issued
July 12, 1991) and, except as you have disclosed to the Company in
writing pursuant to this paragraph (b), no employee benefit plan or
group of plans maintained by the same employer or employee organization
beneficially owns more than 10% of all assets allocated to such pooled
separate account or collective investment fund;
(c) he 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
-13-
employer or by an affiliate (within the meaning of Section V(c)(1) of
the QPAM Exemption) of such employer or by the same employee
organization and managed by such QPAM, exceed 20% of the total client
assets managed by such QPAM, the conditions of Part I(c) and (g) of the
QPAM Exemption are satisfied, neither the QPAM nor a person controlling
or controlled by the QPAM (applying the definition of "control" in
Section V(e) of the QPAM Exemption) owns a 5% or more interest in the
Company and (i) the identity of such QPAM and (g) the names of all
employee benefit plans whose assets are included in such investment
fund have been disclosed to the Company in writing pursuant to this
paragraph (c);
(d) the Source is a governmental plan;
(e) DUE TO THE NATURE OF THE COMPANY'S AND THE TENANT'S
BUSINESS PURCHASERS SHOULD NOT RELY ON THIS SECTION 6.2(E) AS THE
SOURCE. The Source is one or more employee benefit plans, or a separate
account or trust fund comprised of one or more employee benefit plans,
each of which has been identified to the Company in writing pursuant to
this paragraph (e);
(f) the Source does not include assets of any employee
benefit plan, other than a plan exempt from the coverage of ERISA; or _
(g) if you are an insurance company and the Source
includes assets of your general account, the acquisition of the Notes
by the Purchaser is exempt under PTE 95-60 (issued July 12, 1995).
As used in this Section 6.2, the terms "employee benefit plan", "governmental
plan", "party in interest" and "separate account" shall have the respective
meanings assigned to such terms in Section 3 of ERISA.
7. INFORMATION AS TO COMPANY AND TENANT.
7.1. Financial and Business Information
The Company or the Tenant shall deliver to each holder of
Notes that is an Institutional Investor:
(a) Quarterly Statements -- within 60 days after the end
of each quarterly fiscal period in each fiscal year of the Tenant
(other than the last quarterly fiscal period of each such fiscal year),
duplicate copies of,
(i) a consolidated balance sheet of the Tenant
and its Subsidiaries as at the end of such quarter, and
(ii) consolidated statements of income, expenses,
cash flows and, if prepared by the Tenant in connection with
its quarterly financial statements, statements of changes in
capital of the Tenant and its Subsidiaries, for such
-14-
quarter and (in the case of the second and third quarters) for
the portion of the fiscal year ending with such quarter,
setting forth in each case in comparative form the figures for the corresponding
periods in the previous fiscal year, all in reasonable detail, prepared in
accordance with GAAP applicable to quarterly financial statements generally, and
certified by a Senior Financial Officer as fairly presenting, in all material
respects, the financial position of the companies being reported on and their
results of operations and cash flows, subject to changes resulting from year-end
adjustments:
(b) Annual Statements of the Tenant -- within 90 days
after the end of each fiscal year of the Tenant, duplicate copies of,
(i) a consolidated balance sheet of the Tenant
and its Subsidiaries, as at the end of such year, and
(ii) consolidated statements of income, expenses,
cash flows and, if prepared by the Tenant in connection with
its annual audited financial statements, statements of changes
in capital of the Tenant and its Subsidiaries, for such year,
setting forth in each case in comparative form the figures for the previous
fiscal year, all in reasonable detail, prepared in accordance with GAAP, and
accompanied
(c) by an opinion thereon of independent certified public
accountants of recognized national standing, which opinion shall state
that such financial statements present fairly, in all material
respects, the financial position of the companies being reported upon
and their results of operations and cash flows and have been prepared
in conformity with GAAP, and that the examination of such accountants
in connection with such financial statements has been made in
accordance with generally accepted auditing standards, and that such
audit provides a reasonable basis for such opinion in the
circumstances, and
(d) a certificate of such accountants stating that they
have reviewed this Agreement and stating further whether, in making
their audit, they have become aware of any condition or event that then
constitutes a Default or an Event of Default, and, if they are aware
that any such condition or event then exists, specifying the nature and
period of the existence thereof (it being understood that such
accountants shall not be liable, directly or indirectly, for any
failure to obtain knowledge of any Default or Event of Default unless
such accountants should have obtained knowledge thereof in making an
audit in accordance with generally accepted auditing standards or did
not make such an audit),
(e) SEC and Other Reports -- if applicable, promptly upon
their becoming available, one copy of any of the following which are
publicly available: (i) each financial statement, report, notice or
proxy statement sent by the Company, the Tenant or any Subsidiary to
public securities holders generally, and (ii) each regular or periodic
report (other than reports arising from the Tenant's investment
advisory and transfer agency services), each registration statement
(without exhibits except as expressly
-15-
requested by such holder), and each prospectus and all amendments
thereto filed by the Company, the Tenant or any Subsidiary with the
Securities and Exchange Commission and of all press releases and other
statements made available generally by the Company, the Tenant or any
Subsidiary to the public concerning developments that are Material;
(f) Notice of Default or Event of Default -- promptly,
and in any event within five days after a Responsible Officer becoming
aware of the existence of any Default or Event of Default 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 Company or the Tenant is
taking or proposes to take with respect thereto;
(g) ERISA Matters -- promptly, and in any event within
five days after a Responsible Officer becoming aware of any of the
following, a written notice setting forth the nature thereof and the
action, if any, that the Company, the Tenant or an ERISA Affiliate
proposes to take with respect thereto:
(i) with respect to any Plan, any reportable
event, as defined in section 4043(b) of ERISA and the
regulations thereunder, for which notice thereof has not been
waived pursuant to such regulations as in effect on the date
hereof; or
(ii) the taking by the PBGC of steps to
institute, or the threatening by the PBGC of the institution
of, proceedings under section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer,
any Plan, or the receipt by the Company, the Tenant or any
ERISA Affiliate of a notice from a Multiemployer Plan that
such action has been taken by the PBGC with respect to such
Multiemployer Plan; or
(iii) any event, transaction or condition that
could result in the incurrence of any liability by the
Company, Tenant or any ERISA Affiliate pursuant to Title I or
IV of ERISA or the penalty or excise tax provisions of the
Code relating to Plans, or in the imposition of any Lien on
any of the rights, properties or assets of the Company, the
Tenant or any ERISA Affiliate pursuant to Title I or IV of
ERISA or such penalty or excise tax provisions, if such
liability or Lien, taken together with any other such
liabilities or Liens then existing, could reasonably be
expected to have a Material Adverse Effect;
(h) Notices from Governmental Authority -- promptly, and
in any event within 30 days of receipt thereof, copies of any notice to
the Company, the Tenant or any Subsidiary from any Federal or state
Governmental Authority relating to any order, ruling, statute or other
law or regulation that could reasonably be expected to have a Material
Adverse Effect;
(i) Restricted Subsidiary Status -- promptly, and in any
event within ten days of the occurrence thereof, the designation of an
Unrestricted Subsidiary of Tenant as a Restricted Subsidiary of Tenant;
-16-
(j) Lease Status -- on or before January 22, 2000 notice
as to whether Final Project Completion has been achieved; and
(k) Requested Information -- with reasonable promptness,
such other data and information relating to the business, operations,
affairs, financial condition, assets or properties of the Company, the
Tenant or any of the Subsidiaries or relating to the ability of the
Company or the Tenant to perform its respective obligations hereunder,
under the Operative Agreements to which each is a party, and, in the
case of the Company only, under the Notes as from time to time may be
reasonably requested by any such holder of Notes.
7.2. Officer's Certificate.
Each set of financial statements delivered to a holder of
Notes pursuant to Section 7.1 (a) or Section 7.1 (b) hereof shall be accompanied
by a certificate of a Senior Financial Officer of each of the Company and the
Tenant, as applicable, setting forth:
(a) Covenant Compliance -- the information (including
detailed calculations) required in order to establish whether the
Tenant or the Company, as applicable, was in compliance with the
requirements of Section 10.2 through Section 10.11 hereof, inclusive,
during the quarterly or annual period covered by the statements then
being furnished (including with respect to each such Section, where
applicable, the calculations of the maximum or minimum amount, ratio or
percentage, as the case may be, permissible under the terms of such
Sections, and the calculation of the amount, ratio or percentage then
in existence); and
(b) Event of Default -- a statement that each such
officer has reviewed the relevant terms hereof and has made, or caused
to be made, under his or her supervision, a review of the transactions
and conditions of the Company, the Tenant and the Subsidiaries from the
beginning of the quarterly or annual period covered by the statements
then being furnished to the date of the certificate and that such
review shall not have disclosed the existence during such period of any
condition or event that constitutes a Default or an Event of Default
or, if any such condition or event existed or exists (including,
without limitation, any such event or condition resulting from the
failure of the Company, the Tenant or any Subsidiary to comply with any
Environmental Law), specifying the nature and period of existence
thereof and what action the Company or the Tenant shall have taken or
proposes to take with respect thereto.
7.3. Inspection.
The Company and the Tenant shall permit the representatives of
each holder of Notes that is an Institutional Investor:
(a) No Default -- if no Default or Event of Default then
exists, at the expense of such holder and upon reasonable prior notice
to the Company or the Tenant, as applicable, to visit the respective
principal executive office of the Company or the Tenant, to discuss the
affairs, finances and accounts of the Company, the Tenant and the
Subsidiaries with the respective officers of the Company and the
Tenant, and (with the
-17-
consent of the Company and the Tenant, which consent will not be
unreasonably withheld) their respective independent public accountants,
and (with the consent of the Company and the Tenant, which consent will
not be unreasonably withheld) to visit the other offices and properties
of the Company, the Tenant and each Subsidiary, all at such reasonable
times and as often as may be reasonably requested in writing; and
(b) Default -- if a Default or Event of Default then
exists, at the expense of the Company or the Tenant, as applicable, to
visit and inspect any of the offices or properties of the Company, the
Tenant or any Subsidiary, to examine all their respective books of
account, records, reports and other papers, to make copies and extracts
therefrom, and to discuss their respective affairs, finances and
accounts with their respective officers and independent public
accountants (and by this provision the Company and the Tenant authorize
said accountants to discuss the affairs, finances and accounts of the
Company, the Tenant and Subsidiaries), all at such times and as often
as may be requested.
8. PREPAYMENT OF THE NOTES
8.1. Required Prepayments.
(a) On the twenty-seventh (27th) day of each month,
commencing March 27, 2000 and continuing through and including February
27, 2020, the Company will prepay principal on the Notes as set forth
on Schedule 8.1 attached hereto (together with accrued and unpaid
interest thereon in accordance with Schedule 8.1 and the Notes) and
without payment of the Make-Whole Amount or any premium, provided that
upon any partial prepayment of the Notes pursuant to Section 8.1(b),
Section 8.1(c), Section 8.1(d), Section 8.1(e), Section 8.2 or Section
8.3 or purchase of the Notes permitted by Section 8.6 the amount of
each required prepayment of the Notes becoming due under this Section
8.1(a) on and after the date of such prepayment or purchase shall be
recalculated and reduced based on the aggregate unpaid principal amount
of Notes outstanding, the stated interest rate and the then existing
remaining life to maturity and a new Schedule 8.1 shall be attached
hereto.
(b) Upon the Tenant's exercise of the Option (as defined
in the Lease) to purchase the Property, the Company shall, upon notice
as provided below, prepay the entire principal amount of the Notes
outstanding together with accrued interest thereon to the date of
prepayment and any Make-Whole Amount.
(c) Upon the occurrence of the condemnation, taking by
exercise of the power of eminent domain, or a deed in lieu of the
foregoing (a "Taking"), of the entire amount of the Property, the
Company shall, upon notice as provided below, prepay the entire
principal amount of the Notes, together with interest accrued thereon
to the date of prepayment, without payment of the Make-Whole Amount.
(d) Upon the occurrence of a Taking of less than the
entire Property but more than 15% of the floor area of the Improvements
(as defined in each of the Leases), or more than 5O% of the Land (as
defined in each of the Leases), the Company shall, upon notice as
provided below, prepay the principal amount of the Notes, together with
-18-
accrued interest thereon to the date of prepayment, in an amount equal
to the total award for such partial Taking without payment of the
Make-Whole Amount. Subject to the terms of the applicable Lease, the
remaining scheduled principal and interest payments shall be reduced on
a pro rata basis for the remaining term of the Notes. Notwithstanding
the foregoing, in the event the Tenant has satisfied the conditions of
paragraph 17B of the applicable Lease and has the right to terminate
the balance of the applicable Lease, the Company shall, upon notice
provided below, prepay the entire principal amount of the Notes,
together with interest accrued thereon to the date of prepayment
without payment of the Make-Whole Amount.
(e) Upon the occurrence of a Taking other than as
described in subsection (c) or (d) above, the Company shall, upon
notice as provided below, prepay the principal amount of the Notes,
together with accrued interest thereon to the date of prepayment,. in
an amount equal the total award for such partial Taking, without
payment of the Make-Whole Amount.
The Company will give each holder of Notes written notice of
each prepayment under this Section 8.1 not less than 30 days and not more than
60 days prior to the date fixed for such payment. Each such notice shall specify
such date the aggregate principal amount of the Notes to be prepaid on such
date, and the principal amount of each Note held by such holder to be prepaid
(determined in accordance with Section 8.4).
8.2. Extraordinary Required Prepayments.
If the Final Project Completion has not occurred by January
22, 2001, each of the holders of the Notes shall have the right, at its option,
to be prepaid all of the outstanding principal amount of each Note held by such
holder, plus interest on such principal amount accrued to the prepayment date
and the Make-Whole Amount, if any.
8.3. Optional Prepayments with Make-Whole Amount.
The Company may, at its option, upon notice as provided below,
prepay at any time all, or from time to time any part of, the Notes, in an
amount not less than $5,000,000 or integral multiples of $100,000 in excess
thereof (or such lesser amount as shall then be outstanding) in the case of a
partial prepayment, at 100% of the principal amount so prepaid, plus interest on
such principal amount accrued to the prepayment date and the Make-Whole Amount
determined for the prepayment date with respect to such principal amount. The
Company will give each holder of Notes written notice of each optional
prepayment under this Section 8.3 not less than 30 days and not more than 60
days prior to the date fixed for such prepayment. Each such notice shall specify
such date, the aggregate principal amount of the Notes to be prepaid on such
date, the principal amount of each Note held by such holder to be prepaid
(determined in accordance with Section 8.4), and the interest to be paid on the
prepayment date with respect to such principal amount being prepaid, and shall
be accompanied by a certificate of a Senior Financial Officer as to the
estimated Make-Whole Amount due in connection with such prepayment (calculated
as if the date of such notice were the date of the prepayment), setting forth
the details of such computation. Two Business Days prior to such prepayment, the
-19-
Company shall deliver to each holder of Notes a certificate of a Senior
Financial Officer specifying the calculation of such Make-Whole Amount as of the
specified prepayment date.
8.4. Allocation of Partial Prepayments.
In the case of each partial prepayment of the Notes, the
principal amount of the Notes to be prepaid shall be allocated among all of the
Notes at the time outstanding in proportion, as nearly as practicable, to the
respective unpaid principal amounts thereof not theretofore called for
prepayment.
8.5. Maturity; Surrender, etc.
In the case of each prepayment of Notes pursuant to this
Section 8, the principal amount of each Note to be prepaid shall mature and
become due and payable on the date fixed for such prepayment, together with
interest on such principal amount accrued to such date and the applicable
Make-Whole Amount, if any. From and after such date, unless the Company shall
fail to pay such principal amount when so due and payable, together with the
interest and Make-Whole Amount, if any, as aforesaid, interest on such principal
amount shall cease to accrue. Any Note paid or prepaid in full shall be
surrendered to the Company and canceled and shall not be reissued, and no Note
shall be issued in lieu of any prepaid principal amount of any Note.
8.6. Purchase of Notes.
The Company will not and will not permit any Affiliate
(including but not limited to the Tenant) to purchase, redeem, prepay or
otherwise acquire, directly or indirectly, any of the outstanding Notes except
upon the payment or prepayment of the Notes in accordance with the terms of this
Agreement and the Notes. The Company will promptly cancel all Notes acquired by
it or any Affiliate pursuant to any payment, prepayment or purchase of Notes
pursuant to any provision of this Agreement and no Notes may be issued in
substitution or exchange for any such Notes.
8.7. 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 8.1(b), 8.2 or
8.3 or has become or is declared to be immediately due and payable pursuant to
Section 12.1, as the context requires.
"Discounted Value" means, with respect to the Called Principal
of any Note, 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
-20-
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
yields reported, as of 10:00 A.M. (New York City time) on the second Business
Day preceding the Settlement Date with respect to such Called Principal, on the
display designated as Page "USD" of the Bloomberg Financial Markets Service (or
such other display as may replace Page "USD" of the Bloomberg Financial Markets
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.1 S (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.
"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 8.1(b), 8.2 or 8.3 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 8.1(b), 8.2 or 8.3 or has become or is declared to be immediately due
and payable pursuant to Section 12.1, as the context requires.
-21-
9. AFFIRMATIVE COVENANTS.
Each of the Company and the Tenant covenants that so long as
any of the Notes are outstanding:
9.1. Compliance with Law.
The Company and the Tenant will, and the Tenant will cause
each of its Subsidiaries to, comply with all laws, ordinances or governmental
rules or regulations to which each of them is subject, including, without
limitation, Environmental Laws, and will obtain and maintain in effect all
licenses, certificates, permits, franchises and other governmental
authorizations necessary to the ownership of their respective properties or to
the conduct of their respective businesses, in each case to the extent necessary
to ensure that non-compliance with such laws, ordinances or governmental rules
or regulations or failures to obtain or maintain in effect such licenses,
certificates, permits, franchises and other governmental authorizations could
not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
9.2. Insurance.
Subject to the requirements of the other Operative Agreements,
the Company and the Tenant will, and the Tenant will cause each of its
Subsidiaries to, maintain, with financially sound and reputable insurers,
insurance with respect to their respective properties and businesses against
such casualties and contingencies, of such types, on such terms and in such
amounts (including deductibles, co-insurance and self-insurance, if adequate
reserves are maintained with respect thereto) as is customary in the case of
entities of established reputations engaged in the same or a similar business
and similarly situated.
9.3. Maintenance of Properties.
Subject to the requirements of the other Operative Agreements,
the Company and the Tenant will, and the Tenant will cause each of its
Subsidiaries to, maintain and keep, or cause to be maintained and kept, their
respective properties in good repair, working order and condition (other than
ordinary wear and tear), so that the business carried on in connection therewith
may be properly conducted at all times, provided that this Section shall not
prevent the Company, the Tenant or any Subsidiary from discontinuing the
operation and the maintenance of any of its properties (other than the Property)
if such discontinuance is desirable in the conduct of its business and the
Company and the Tenant have concluded that such discontinuance could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
9.4. Payment of Taxes and Claims.
The Company and the Tenant will and the Tenant will cause each
of its Subsidiaries to file all tax returns required to be filed in any
jurisdiction and to pay and discharge all taxes shown to be due and payable on
such returns and all other taxes, assessments, governmental charges, or levies
imposed on them or any of their properties, assets, income or franchises, to the
extent such taxes and assessments have become due and payable and before they
have become delinquent and all claims for which sums have become due and payable
that have or might become a Lien on properties or assets of the Company, the
Tenant or any
-22-
Subsidiary, provided that subject to the terms of the other Operative
Agreements, none of the Company, the Tenant or any Subsidiary need pay any such
tax or assessment or claims if (i) the amount, applicability or validity thereof
is contested by the Company, the Tenant or such Subsidiary on a timely basis in
good faith and in appropriate proceedings, and the Company, the Tenant or a
Subsidiary has established adequate reserves therefor in accordance with GAAP on
the books of the Company, the Tenant or such Subsidiary or (ii) the nonpayment
of all such taxes and assessments in the aggregate could not reasonably be
expected to have a Material Adverse Effect.
9.5. Existence, etc.
Each of the Company and the Tenant will at all times preserve
and keep in full force and effect its existence as a limited liability company.
Subject to Section 10.2, the Tenant will at all times preserve and keep in full
force and effect the corporate, limited liability company or partnership
existence of each of its Subsidiaries (unless merged into the Tenant or a
Subsidiary of Tenant) and all rights and franchises of the Tenant and its
Subsidiaries unless, in the good faith judgment of the Tenant, the termination
of or failure to preserve and keep in full force and effect such existence,
right or franchise could not, individually or in the aggregate, have a Material
Adverse Effect.
9.6. Nature of Business.
The Company is and shall remain a special purpose entity and
limit the conduct of its business to ownership of the Property as contemplated
hereby and by the Operative Agreements and the leasing thereof pursuant to the
Leases and such other business activities as are incident or necessary thereto,
but no other activities. The Company will do or cause to be done all things
necessary to preserve, renew and keep in full force and effect its rights,
privileges and franchises and its existence as a limited liability company,
necessary or desirable in the normal conduct of business; provided, however,
that the Company shall not be required to preserve any right, privilege or
franchise, if the Members of the Company shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company and
that the loss thereof is not Material.
9.7. Compliance with Terms of Operative Agreements.
The Company and the Tenant shall each comply with all of the
terms, conditions, and covenants in the Operative Agreements to which the
Company or the Tenant is a party.
10. NEGATIVE COVENANTS.
The Company and Tenant each covenants that so long as any of
the Notes are outstanding:
10.1. Transactions with Affiliates.
The Company will not create or suffer to exist any
Subsidiaries. The Company and the Tenant will not, and the Tenant will not
permit any Restricted Subsidiary to, enter into directly or indirectly any
transaction or Material group of related transactions (including without
-23-
limitation the purchase, lease, sale or exchange of properties of any kind or
the rendering of any service) with any Affiliate, except in the ordinary course
and pursuant to the reasonable requirements of the Company's, the Tenant's or
such Restricted Subsidiary's business and upon fair and reasonable terms no less
favorable to the Company, the Tenant or such Restricted Subsidiary than would be
obtainable in a comparable arm's-length transaction with a Person not an
Affiliate.
10.2. Merger, Consolidation, etc.
The Company and the Tenant shall not, and shall not permit any
Restricted Subsidiary of Tenant to, 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 other Person, except that:
(a) the Tenant may consolidate with or merge with or into
any Person (other than the Company), or convey, transfer or lease
substantially all of the assets of the Tenant as an entirety to any
Person (other than the Company) provided that immediately after giving
effect thereto,
(i) the Tenant is the successor Person or, if
the Tenant is not the successor Person, the successor Person
is a Person organized under the laws of a state of the United
States of America or the District of Columbia and shall
expressly assume in writing the Tenant's obligations under
this Agreement and the Operative Agreements to which the
Tenant is a party (pursuant to such agreements and instruments
reasonably satisfactory to the Required Holders), and the
successor Person shall furnish to the holders of the Notes an
opinion of nationally recognized independent counsel in form
and substance satisfactory to the Required Holders to the
effect that the instrument of assumption has been duly
authorized, executed and delivered and constitutes the legal,
valid and binding contract and agreement of the successor
Person enforceable in accordance with its terms, except as
enforcement of such terms may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and
by general equitable principles;
(ii) immediately after giving effect to such
transaction, there shall exist no Event of Default or Default;
and
(iii) immediately after giving effect to such
transaction, the Tenant or such successor Person could incur
at least $1.00 of additional Funded Indebtedness pursuant to
Section 10.4(c).
(b) any Restricted Subsidiary of Tenant may (i)
consolidate with or merge into the Tenant or any Restricted Subsidiary
of Tenant or (ii) convey, transfer or lease substantially all of its
assets to the Tenant or to any Restricted Subsidiary of Tenant,
provided in each such instance there shall exist no Event of Default or
Default.
-24-
10.3. Consolidated Net Capital.
The Tenant will not at any time permit its Consolidated Net
Capital to be less than the sum of (a) $85,000,000 plus (b) the cumulative sum
of 10% (without deduction for any loss) of its Consolidated Net Income for the
six month period ending September 30, 1996 and for each fiscal year thereafter.
10.4. Funded Indebtedness.
The Company will not at any time create, assume, incur,
guarantee or otherwise become liable, directly or indirectly, for any Funded
Indebtedness other than the Notes. The Tenant will not, nor shall it permit any
Restricted Subsidiary of Tenant to, at any time, create, assume, incur,
guarantee or otherwise become liable, directly or indirectly, for any Funded
Indebtedness other than:
(a) All existing Funded Indebtedness described in
Schedule 5.15;
(b) Funded Indebtedness of a Restricted Subsidiary of
Tenant owed to the Tenant or to any Wholly-Owned Restricted Subsidiary
of Tenant;
(c) Funded Indebtedness if, after giving effect to the
incurrence of such Funded Indebtedness and to the application of
proceeds thereof, Consolidated Funded Indebtedness would not exceed 55%
of Total Capitalization as of the end of the most recent fiscal
quarter.
10.5. Current Indebtedness.
The Company will not have, at any time, any Current
Indebtedness outstanding other than the Notes. The Tenant will not, and will not
permit any Restricted Subsidiary of Tenant to, have, at any time, any Current
Indebtedness outstanding unless, during the twelve month period immediately
preceding, there shall have been a period of 30 consecutive days during which
the sum of (a) such outstanding Current Indebtedness (if Current Indebtedness
were categorized as Funded Indebtedness) plus (b) outstanding Funded
Indebtedness could have been incurred as Consolidated Funded Indebtedness
pursuant to Section 10.4(c).
10.6. Indebtedness of Restricted Subsidiaries.
The Tenant shall not permit any Restricted Subsidiary of
Tenant at any time to create, assume, incur, guarantee or otherwise become
liable, directly or indirectly, for any Indebtedness, except:
(a) Indebtedness owed to the Tenant or to any
Wholly-Owned Restricted Subsidiary of Tenant; and
(b) Subject to compliance with Section 10.4(c),
Indebtedness which, when added to aggregate outstanding Indebtedness
incurred pursuant to Section 10.70), shall not at any time exceed 25%
of Consolidated Net Capital determined as of the end of the Tenant's
most recently ended fiscal quarter.
-25-
10.7. Liens.
The Company and the Tenant will not, and the Tenant will not
permit any Restricted Subsidiary to, create, assume or incur, or suffer to be
incurred or assumed or to exist, any Lien on its or their property or assets,
whether now owned or hereafter acquired, or upon any income or profits
therefrom, or transfer any property for the purpose of subjecting the same to
the payment of obligations in priority to the payment of its or their general
creditors, or acquire or agree to acquire, or, in the case of the Tenant, permit
any Restricted Subsidiary to acquire, any property or assets upon conditional
sales agreements or other title retention devices, except:
(a) Liens existing on property or assets of the Company,
Tenant or any Restricted Subsidiary of Tenant as of the date of this
Agreement that are described in Schedule 10.7 to this Agreement;
(b) Liens created by the Security Documents;
(c) Liens permitted under the Operative Agreements;
(d) Liens for taxes, assessments or governmental charges
the payment of which is not required under Section 9.4 and with respect
to which adequate security is being maintained in accordance with this
Agreement and the Security Documents;
(e) Liens created by or resulting from any litigation or
legal proceedings which are being contested in good faith by
appropriate legal proceedings and adequate reserves are maintained with
respect thereto in accordance with GAAP, unless the judgment that such
Liens secure shall not have been stayed, bonded or discharged within 60
days;
(f) Liens in connection with worker's compensation,
social security taxes or similar charges arising in the ordinary course
of business and not incurred in connection with the borrowing of money;
(g) Subject to the terms of the other Operative
Agreements, Liens securing Indebtedness owed by any Restricted
Subsidiary of Tenant to the Tenant or by the Tenant to any Wholly-Owned
Restricted Subsidiary or by any Restricted Subsidiary to any
Wholly-Owned Restricted Subsidiary;
(h) Subject to the terms of the other Operative
Agreements, Liens consisting of encumbrances in the nature of zoning
restrictions, rights and restrictions on the use of real property on
the date of the acquisition thereof, roadway dedications, easements and
statutory Liens of landlords, which in any case do not materially
detract from the value of such property or impair the use thereof;
(i) Any Lien on fixed assets of Tenant or any Restricted
Subsidiary of Tenant to secure any rights granted with respect to such
property in connection with the provision of all or a part of the
purchase price created contemporaneously with, or within 90 days after,
such acquisition, provided that, (i) any Liens incurred pursuant to
this clause (i) shall not (x) exceed 100% of the lesser of cost or fair
market value (as
-26-
determined by the Managers of the Tenant) of the related property at
the time of the occurrence of the transactions described above in this
clause (i) or (y) extend to any other property of the Tenant or any
Restricted Subsidiary other than the fixed assets acquired pursuant to
this clause (i) and (ii) such Indebtedness could be incurred by Tenant
or any Restricted Subsidiary of Tenant pursuant to Section 10.4(c); and
(j) Liens which secure Indebtedness of Tenant or any
Restricted Subsidiary of Tenant and which are not permitted by (a)
through (h) above; provided that, after giving effect to the incurrence
of such Indebtedness and the application of proceeds thereof, (A) the
requirements of Section 10.4(c) shall have been met and (B)
Indebtedness incurred by Tenant or any Restricted Subsidiary of Tenant
under this Section 10.70), when added to outstanding Indebtedness of
Restricted Subsidiaries of Tenant permitted by Section 10.6(b) will not
exceed 25% of Consolidated Net Capital determined as of the end of the
Tenant's most recently ended fiscal quarter.
10.8. Lease Amendments.
Neither the Company nor the Tenant shall allow either of the
Leases to be amended in any respect without the written consent of the Required
Holders.
10.9. Sale of Assets.
Except as permitted by Section 10.2. the Tenant will not, and
will not permit any Restricted Subsidiary to, sell, lease, transfer or otherwise
dispose of any assets, including the disposition of the stock of any Restricted
Subsidiary (except as permitted by Section 10.10(a) and Section 10.10(b)(i) and
(ii)) and including any Sale and Lease-Back Transaction (collectively, a
"Disposition"), in one or a series of transactions, other than in the ordinary
course of business, to any Person, other than the Tenant or a Wholly-Owned
Restricted Subsidiary if immediately preceding such Disposition and after giving
effect to such Disposition during any fiscal year of the Tenant the aggregate
book value of all such Dispositions during such fiscal year, would exceed 15% of
Consolidated Total Assets as of the end of the immediately preceding fiscal
year; provided, however, that the Tenant may, and may permit any Restricted
Subsidiary to, sell, lease, transfer or otherwise dispose of assets in excess of
the percentage specified above:
(a) if the cash proceeds therefrom are (i) utilized
within 180 days after such Disposition to purchase productive assets of
at least equivalent value or (ii) used to prepay Consolidated Funded
Indebtedness (except Subordinated Indebtedness), including the Notes,
on a pro rata basis, subject to the prepayment requirements and at the
price set forth in Section 8.3 (provided, however, that any holder of
the Notes may, at its sole discretion, decline to have its Notes so
prepaid); or
(b) if the Disposition is a Sale and Leaseback
Transaction in which the Tenant or any Restricted Subsidiary sells
property and leases the same property within 180 days of such sale;
provided that, (i) the cash proceeds therefrom are utilized within 180
days after such Disposition to purchase productive assets of equivalent
value and (ii) after
-27-
giving effect to such Sale and Leaseback Transaction, no Default or
Event of Default shall have occurred.
10.10. Restricted Subsidiary Stock.
(a) The Tenant will not permit any Restricted Subsidiary
to issue shares of its capital stock to any Person other than (i) the
Tenant, (ii) any Wholly-Owned Restricted Subsidiary, (iii) management
or employees of the Tenant or any Wholly-Owned Restricted Subsidiary or
any Foreign Restricted Subsidiary or (iv) in connection with the
issuance of director's qualifying shares with respect to Foreign
Restricted Subsidiaries; provided, however, that (A) after giving
effect to such stock issuance pursuant to the foregoing clause (iii),
no Default or Event of Default shall have occurred and (B) the Managers
of the Tenant shall have determined that such stock issuance is in the
best interest of the Tenant.
(b) The Tenant will not sell, transfer or otherwise
dispose of any capital stock or other equity or partnership interest
(the "Interests") in any Restricted Subsidiary to any Person other than
to (i) any Wholly-Owned Restricted Subsidiary, (ii) management or
employees of the Tenant or any Wholly-Owned Restricted Subsidiary or
any Foreign Restricted Subsidiary or (iii) in connection with the
issuance of director's qualifying shares with respect to Foreign
Restricted Subsidiaries; provided, however, that (A) after giving
effect to such disposition pursuant to the foregoing clause (ii), no
Default or Event of Default shall have occurred and (B) the Managers of
the Tenant shall have determined that such disposition is in the best
interest of the Tenant, and provided, further, that the Tenant may
sell, transfer or otherwise dispose of Interests other than as provided
in clauses (i) and (ii) of this paragraph (b) if (A) the Interests are
valued at book value determined as the date of such disposition, and
such disposition is permitted by Section 10.9; (B) all Interests held
by the Tenant in any Restricted Subsidiary shall be transferred in
connection with such disposition; (C) following such disposition,
neither the Tenant nor any Restricted Subsidiary shall own any
Interests in such former Restricted Subsidiary or be owed any
Indebtedness by such former Restricted Subsidiary; and (D) immediately
after giving effect to such disposition (y) the Tenant could incur
$1.00 of additional Funded Indebtedness pursuant to Section 10.4(c) and
(z) no Default or Event of Default shall have occurred.
10.11. Distributions.
The Company and the Tenant will not, and the Tenant will not
permit any Restricted Subsidiary to, during any fiscal year, declare or pay any
distributions to any of its owners if at the time of any such distribution a
Default or Event of Default shall have occurred and be continuing hereunder or
under the other Operative Agreements or would occur as a result thereof.
10.12. Amendments to Articles of Organization and Operating
Agreement.
The Company shall not amend or modify its articles of
organization or Operating Agreement nor shall the Tenant amend or modify its
articles of organization or the Tenant
-28-
Operating Agreement, in any manner which might materially and adversely affect
the rights of any holders of the Notes (it being agreed that amendments for the
purpose of admitting additional members, or reflecting deaths, retirements,
resignations, withdrawals or removals of members will not be deemed to have such
an adverse effect and amendments permitting members to incorporate and such
corporations to become members of the Tenant shall not be deemed to have such an
adverse effect).
10.13. Change in Business.
None of the Company, the Tenant or any Restricted Subsidiary
will engage in any business as a result of which the general nature of the
business, taken as a whole, which would then be engaged in by the Company, the
Tenant or the Restricted Subsidiaries would be substantially changed from the
general nature of such business on the date hereof.
10.14. Permitted Investments.
The Company will not permit or authorize any Investments other
than Permitted Investments.
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 Company defaults in the payment of any principal
or Make-Whole Amount, if any, on any Note when the same becomes due and
payable, whether at maturity or at a date fixed for prepayment or by
declaration or otherwise;
(b) the Company defaults in the payment of any interest
on any Note or the Company or the Tenant defaults in the payment of any
other amount due under the Operative Agreements, in any case, for more
than five Business Days after the same becomes due and payable;
(c) the Company or the Tenant defaults in the performance
of or compliance with any term contained in Sections 10.1 through
10.12;
(d) the Company or the Tenant defaults in the performance
of or compliance with any other term contained herein (other than those
referred to in paragraphs (a), (b) and (c) of this Section 11) or any
Operative Agreement and such default is not remedied within 30 days
after the earlier of (i) a Responsible Officer of the Company or Tenant
obtaining actual knowledge of such default and (ii) the Company
receiving written notice of such default from any holder of a Note (any
such written notice to be identified as a "notice of default" and to
refer specifically to this paragraph (d) of Section 11);
(e) any representation or warranty made in writing by or
on behalf of the Company, the Tenant or by any officer of the Company
or the Tenant in this Agreement, the Operative Agreements or in any
writing furnished in connection with the transactions
-29-
contemplated hereby proves to have been false or incorrect in any
material respect on the date as of which made;
(f) a default or event of default shall occur under any
other Operative Agreement and such default or event of default shall
remain incurred after the expiration of any applicable grace or cure
period provided for therein or if no such cure period is provided for
therein within thirty (30) days;
(g) the Company, the Tenant or any Subsidiary is in
default (as principal or as guarantor or other surety) in the payment
of any principal of or premium or make-whole amount or interest on any
Indebtedness that is outstanding in an aggregate principal amount of at
least $50,000 in the case of the Company, and at least $10,000,000 in
the case of the Tenant or any Subsidiary, beyond any period of grace
provided with respect thereto, or (ii) the Company, the Tenant or any
Subsidiary is in default in the performance of or compliance with any
term of any evidence of any Indebtedness in an aggregate outstanding
principal amount of at least $50.000 in the case of the Company, and at
least $10,000,000 in the case of the Tenant or any Subsidiary, or of
any mortgage, indenture or other agreement relating thereto beyond any
period of grace provided with respect to such default, or (iii) as a
consequence of the occurrence or continuation of any event or condition
(other than the passage of time or the right of the holder of
Indebtedness to convert such Indebtedness into equity interests), (x)
the Company, the Tenant or any Subsidiary has become obligated to
purchase or repay Indebtedness before its regular maturity or before
its regularly scheduled dates of payment in an aggregate outstanding
principal amount of at least $50,000 in the case of the Company, and at
least $10,000,000 in the case of the Tenant or any Subsidiary, or (y)
one or more Persons have the right to require the Company, the Tenant
or any Subsidiary so to purchase or repay such Indebtedness;
(h) the Company, the Tenant or any Subsidiary (i) is
generally not paying, or admits in writing its inability to pay, its
debts as they become due, (ii) files, or consents by answer or
otherwise to the filing against it of, a petition for relief or
reorganization or arrangement or any other petition in bankruptcy, for
liquidation or to take advantage of any bankruptcy, insolvency,
reorganization, moratorium or other similar law of any jurisdiction,
(iii) makes an assignment for the benefit of its creditors, (iv)
consents to the appointment of a custodian, receiver, trustee or other
officer with similar powers with respect to it or with respect to any
substantial part of its property, (v) is adjudicated as insolvent or to
be liquidated, or (vi) takes corporate action for the purpose of any of
the foregoing;
(i) a court or governmental authority of competent
jurisdiction enters an order appointing, without consent by the
Company, the Tenant or any of its Subsidiaries, a custodian, receiver,
trustee or other officer with similar powers with respect to it or with
respect to any substantial part of its property, or constituting an
order for relief or approving a petition for relief or reorganization
or any other petition in bankruptcy or for liquidation or to take
advantage of any bankruptcy or insolvency law of any jurisdiction, or
ordering the dissolution, winding-up or liquidation of the Company, the
Tenant or any
-30-
of the Subsidiaries, or any such petition shall be filed against the
Company, the Tenant or any of the Subsidiaries and such petition shall
not be dismissed within 60 days;
(j) a final judgment or judgments for the payment of
money aggregating in excess of $50,000 in the case of the Company and
$5,000,000 in the case of the Tenant or any Subsidiaries are rendered
which judgments are not, within 30 days after entry thereof, bonded,
discharged or stayed pending appeal, or are not discharged within 30
days after the expiration of such stay; or
(k) if (i) any Plan shall fail to satisfy the minimum
funding standards of ERISA or the Code for any plan year or part
thereof or a waiver of such standards or extension of any amortization
period is sought or granted under section 412 of the Code, (ii) a
notice of intent to terminate any Plan shall have been or is reasonably
expected to be filed with the PBGC or the PBGC shall have instituted
proceedings under ERISA section 4042 to terminate or appoint a trustee
to administer any Plan or the PBGC shall have notified the Company, the
Tenant or any ERISA Affiliate that a Plan may become a subject of any
such proceedings, (iii) the aggregate "amount of unfunded benefit
liabilities" (within the meaning of section 4001(a)(18) of ERISA) under
all Plans, determined in accordance with Title IV of ERISA, shall
exceed $500,000, (iv) the Company, the Tenant or any ERISA Affiliate
shall have incurred or is reasonably expected to incur any liability
pursuant to Title I or IV of ERISA or the penalty or excise tax
provisions of the Code relating to employee benefit plans, (v) the
Company, the Tenant or any ERISA Affiliate withdraws from any
Multiemployer Plan, or (vi) the Company, the Tenant or any Subsidiary
establishes or amends any employee welfare benefit plan that provides
post-employment welfare benefits in a manner that would increase the
liability of the Company, the Tenant or any Subsidiary thereunder; and
any such event or events described in clauses (i) through (vi) above,
either individually or together with any other such event or events,
could reasonably be expected to have a Material Adverse Effect.
As used in Section 11(k), the terms "employee benefit plan" and "employee
welfare benefit plan" shall have the respective meanings assigned to such terms
in Section 3 of ERISA.
12. REMEDIES ON DEFAULT, ETC.
12.1. Acceleration.
(a) If an Event of Default with respect to the Company or
the Tenant described in paragraph (h) or (i) of Section 11 (other than
an Event of Default described in clause (i) of paragraph (h) or
described in clause (vi) of paragraph (h) by virtue of the fact that
such clause encompasses clause (i) of paragraph (h)) has occurred, all
the Notes then outstanding shall automatically become immediately due
and payable.
(b) If any other Event of Default has occurred and is
continuing, any holder or holders of more than 33% in principal amount
of the Notes at the time outstanding may at any time at its or their
option, by notice or notices to the Company, declare all the Notes then
outstanding to be immediately due and payable.
-31-
(c) If any Event of Default described in paragraph (a) or
(b) of Section 11 has occurred and is continuing, any holder or holders
of Notes at the time outstanding affected by such Event of Default may
at any time, at its or their option, by notice or notices to the
Company, declare all the Notes held by it or them to be immediately due
and payable.
Upon any Notes becoming due and payable under this Section
12.1, whether automatically or by declaration, such Notes will forthwith mature
and the entire unpaid principal amount of such Notes, plus (x) all accrued and
unpaid interest thereon and (y) the Make-Whole Amount determined in respect of
such principal amount (to the 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 Company
acknowledges, and the parties hereto agree, that each holder of a Note has the
right to maintain its investment in the Notes free from repayment by the Company
(except as herein specifically provided for) and that the provision for payment
of a Make-Whole Amount by the Company in the event that the Notes are prepaid or
are accelerated as a result of an Event of Default, is intended to provide
compensation for the deprivation of such right under such circumstances.
12.2. Other Remedies.
If any Default or Event of Default has occurred and is
continuing, and irrespective of whether any Notes have become or have been
declared immediately due and payable under Section 12.1, the holder of any Note
at the time outstanding may proceed to protect and enforce the rights of such
holder by an action at law, suit in equity or other appropriate proceeding,
whether for the specific performance of any agreement contained in this
Agreement, any of the Operative Agreements or in any Note, or for an injunction
against a violation of any of the terms hereof or thereof, or in aid of the
exercise of any power granted hereby or thereby or by law or otherwise.
12.3. Rescission.
At any time after any Notes have been declared due and payable
pursuant to clause (b) or (c) of Section 12.1, the holders of not less than 51%
in principal amount of the Notes then outstanding, by written notice to the
Company, may rescind and annul any such declaration and its consequences if (a)
the Company has paid all overdue interest on the Notes, all principal of and
Make-Whole Amount, if any, on any Notes that are due and payable and are unpaid
other than by reason of such declaration, and all interest on such overdue
principal and Make-Whole Amount, if any, and (to the extent permitted by
applicable law) any overdue j interest in respect of the Notes, at the Default
Rate, (b) all Events of Default and Defaults, other than non-payment of amounts
that have become due solely by reason of such declaration, have j been cured or
have been waived pursuant to Section 17, and (c) no judgment or decree has been
entered for the payment of any movies 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.
-32-
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, any Operative Agreement or
by any Note upon any holder thereof shall be exclusive of any other right, power
or remedy referred to herein or therein or now or hereafter available at law, in
equity, by statute or otherwise. Without limiting the obligations of the Company
under Section 15, the Company will pay to the holder of each Note on demand such
further amount as shall be sufficient to cover all costs and expenses of such
holder incurred in any enforcement or collection under this Section 12,
including, without limitation, reasonable attorneys' fees, expenses and
disbursements.
13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES.
13.1. Registration of Notes.
The Company shall keep at its principal executive office a
register for the registration and registration of transfers of Notes. The name
and address of each holder of one or more Notes, each transfer thereof and the
name and address of each transferee of one or more 1 Notes shall be registered
in such register. Prior to due presentment for registration of transfer, the
Person in whose name any Note shall be registered shall be deemed and treated as
the owner and holder thereof for all purposes hereof, and the Company shall not
be affected by any notice or knowledge to the contrary. The Company shall give
to any holder of a Note that is an Institutional Investor promptly upon request
therefor, a complete and correct copy of the names and addresses of all
registered holders of Notes. The Company may direct the Collateral and Paying
Agent under the Collateral Agency and Paying Agreement to undertake the
obligation of the Company contained in this Section 13.1 or the Collateral
Agency and Paying Agreement may so provide.
13.2. Transfer and Exchange of Notes.
Upon surrender of any Note at the principal executive office
of the Company for registration of transfer or exchange (and in the case of a
surrender for registration of transfer, duly endorsed or accompanied by a
written instrument of transfer duly executed by the registered holder of such
Note or his attorney duly authorized in writing and accompanied by the address
for notices and other Schedule A information of each transferee of such Note or
part thereof), the Company shall execute and deliver, at the Company's expense
(except as provided below), one or more new Notes (as requested by the holder
thereof) in exchange therefor, in an aggregate principal amount equal to the
unpaid principal amount of the surrendered Note. Each such new Note shall be
payable to such Person as such holder may request and shall be substantially in
the form of Exhibit 1. Each such new Note shall be dated and bear interest from
the date to which interest shall have been paid on the surrendered Note or dated
the date of the surrendered Note if no interest shall have been paid thereon.
The Company may require payment of a sum sufficient to cover any stamp tax or
governmental charge imposed in respect of any such transfer of Notes. Notes
shall not be transferred in denominations of less than $100,000, provided that
if necessary to enable the registration of transfer by a holder of its entire
holding of Notes, one Note may be
-33-
in a denomination of less than $100,000. Any transferee, by its acceptance of a
Note registered in its name (or the name of its nominee), shall be deemed to
have made the representation set forth in Section 6.1. The Company may direct
the Collateral and Paying Agent under the Collateral Agency and Paying Agreement
to act on its behalf with respect to this Section 13.2 other than with respect
to the execution of Notes or the Collateral Agency and Paying Agreement may so
provide.
13.3. Replacement of Notes.
Upon receipt by the Company of evidence reasonably
satisfactory to it of the ownership of and the loss, theft, destruction or
mutilation of any Note (which evidence shall be, in the case of an Institutional
Investor, notice from such Institutional Investor of such ownership and such
loss, theft, destruction or mutilation), and
(a) in the case of loss, theft or destruction, of
indemnity reasonably satisfactory to it (provided that if the holder of
such Note is, or is a nominee for, an original Purchaser or another
Institutional Holder, such Person's own unsecured agreement of
indemnity shall be deemed to be satisfactory), or
(b) in the case of mutilation, upon surrender and
cancellation thereof,
the Company at its own expense shall execute and deliver, in lieu thereof, a new
Note, dated and bearing interest from the date to which interest shall have been
paid on such lost, stolen, destroyed or mutilated Note or dated the date of such
lost, stolen, destroyed or mutilated Note if no interest shall have been paid
thereon. The Company may direct the Collateral and Paying Agent under the
Collateral Agency and Paying Agreement to act on its behalf with respect to this
Section 13.3 other than with respect to the execution of Notes or the Collateral
Agency and Paying Agreement may so provide.
14. PAYMENTS ON NOTES.
14.1. Place of Payment.
Subject to Section 14.2, and to the extent applicable, to the
Collateral Agency and Paying Agreement, payments of principal, Make-Whole
Amount, if any, and interest becoming due and payable on the Notes shall be made
at the addresses of the Purchasers set forth in Schedule A hereto. The Company
may at any time, by notice to each holder of a Note, change the place of payment
of the Notes so long as such place of payment shall be either the principal
office of the Company in such jurisdiction or the principal office of a bank or
trust company in such jurisdiction.
14.2. Home Office Payment.
So long as you or your nominee shall be the holder of any
Note, and notwithstanding anything contained in Section 14.1 or in such Note to
the contrary, the Company will pay or cause to be paid 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
-34-
from time to time specified to the Company in writing for such purpose, without
the presentation or surrender of such Note or the making of any notation
thereon, except that upon written request of the Company or the Collateral and
Paying Agent made concurrently with or reasonably promptly after payment or
prepayment in full of any Note, you shall surrender such Note for cancellation,
reasonably promptly after any such request, to the Company or the Collateral and
Paying Agent at its principal executive office or at the place of payment most
recently designated by the Company or the Collateral and Paying Agent pursuant
to Section 14.1. Prior to any sale or other disposition of any Note held by you
or your nominee you will, at your election, either endorse thereon the amount of
principal paid thereon and the last date to which interest has been paid thereon
or surrender such Note to the Company or the Collateral and Paying Agent in
exchange for a new Note or Notes pursuant to Section 13.2. The Company will
afford the benefits of this Section 14.2 to any Institutional Investor that is
the direct or indirect transferee of any Note purchased by you under this
Agreement and that has made the same agreement relating to such Note as you have
made in this Section 14.2.
15. EXPENSES, ETC.
15.1. Transaction Expenses.
Whether or not the transactions contemplated hereby are
consummated, the Company will pay all costs and expenses (including reasonable
attorneys' fees of a special counsel 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, the Operative Agreements or
the Notes (whether or not such amendment, waiver or consent becomes effective),
including, without limitation: (a) the costs and expenses incurred in enforcing
or defending (or determining whether or how to enforce or defend) any rights
under this Agreement, the Operative Agreements or the Notes or in responding to
any subpoena or other legal process or informal investigative demand issued in
connection with this Agreement, the Operative Agreements or the Notes, or by
reason of being a holder of any Note, and (b) the costs and expenses, including
financial advisors' fees, incurred in connection with the insolvency or
bankruptcy of the Company, the Tenant or any Subsidiary or in connection with
any work-out or restructuring of the transactions contemplated hereby, by the
Operative Agreements and by the Notes. The Company will pay, and will save you
and each other holder of a Note harmless from, all claims in respect of any
fees, costs or expenses if any, of brokers and finders (other than those
retained by you).
15.2. Survival.
The obligations of the Company under this Section 15 will
survive the payment or transfer of any Note, the enforcement, amendment or
waiver of any provision of this Agreement, the Operative Agreements or the
Notes, and the termination of this Agreement and/or the Operative Agreements.
-35-
16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT.
All representations and warranties contained herein shall
survive the execution and delivery of this Agreement, the Operative Agreements
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 or other instrument delivered by or on behalf of the Company or
the Tenant pursuant to this Agreement shall be deemed representations and
warranties of the Company or the Tenant under this Agreement. Subject to the
preceding sentence, this Agreement, the Operative Agreements and the Notes
embody the entire agreement and understanding between you and the Company and
the Tenant and supersede all prior agreements and understandings relating to the
subject matter hereof.
17. AMENDMENT AND WAIVER.
17.1. Requirements.
This Agreement, the other Operative Agreements and the Notes
may be amended, and the observance of any term hereof or of the Notes may be
waived (either retroactively or prospectively), with (and only with) the written
consent of the Company and the Required Holders, except that (a) no amendment or
waiver of any of the provisions of Section 1, 2, 3, 4, 5, 6 or 21 hereof, or any
defined term (as it is used therein), will be effective as to you unless
consented to by you in writing, and (b) no such amendment or waiver may, without
the written consent of the holder of each Note at the time outstanding affected
thereby, (i) subject to the provisions of Section 12 relating to acceleration or
rescission, change the amount or time of any prepayment or payment of principal
of, or change the rate or change the time of payment or method of computation of
interest or of the Make-Whole Amount on, the Notes, (ii) change the percentage
of the principal amount of the Notes the holders of which are required to
consent to any such amendment or waiver, (iii) amend any of Sections 8, 9.6,
11(a), 11(b), 12, 17 or 20; or (iv) alter the first priority lien status granted
by the Security Documents.
17.2. Solicitation of Holders of Notes.
(a) Solicitation. The Company will provide each holder of
the Notes (irrespective of the amount of Notes then owned by it) with
sufficient information, sufficiently far in advance of the date a
decision is required, to enable such holder to make an informed and
considered decision with respect to any proposed amendment, waiver or
consent in respect of any of the provisions hereof, of the other
Operative Agreements or of the Notes. The Company will deliver executed
or true and correct copies of each amendment, waiver or consent
effected pursuant to the provisions of this Section 17 to each holder
of outstanding Notes promptly following the date on which it is
executed and delivered by, or receives the consent or approval of, the
requisite holders of Notes.
-36-
(b) Payment. Neither the Company nor the Tenant will
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 other Operative Agreements unless such
remuneration is concurrently paid, or security is concurrently granted,
on the same terms, ratably to each holder of Notes then outstanding
even if such holder did not consent to such waiver or amendment.
17.3. Binding Effect, etc.
Any amendment or waiver consented to as provided in this
Section 17 applies equally to all holders of Notes and is binding upon them and
upon each future holder of any Note and upon the Company and the Tenant without
regard to whether such Note has been marked to indicate such amendment or
waiver. No such amendment or waiver will extend to or affect any obligation,
covenant, agreement, Default or Event of Default not expressly amended or waived
or impair any right consequent thereon. No course of dealing between the Company
or the Tenant 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 "the
Operative Agreements" and references thereto shall mean this Agreement and the
Operative Agreements as they may from time to time be amended or supplemented. .
17.4. Notes held by Company or the Tenant, etc.
Solely for the purpose of determining whether the holders of
the requisite percentage of the aggregate principal amount of Notes then
outstanding approved or consented to any amendment, waiver or consent to be
given under this Agreement or the Notes, or have directed the taking of any
action provided herein or in the Notes to be taken upon the direction of the
holders of a specified percentage of the aggregate principal amount of Notes
then outstanding, Notes directly or indirectly owned by the Company, the Tenant
or any of their Affiliates shall be deemed not to be outstanding.
18. NOTICES.
All notices and communications provided for hereunder shall be
in writing and sent (a) by telecopy if the sender on the same day sends a
confirming copy of such notice by a recognized overnight delivery service
(charges prepaid), or (b) by registered or certified mail with return receipt
requested (postage prepaid), or (c) by a recognized overnight delivery service
(with charges prepaid). Any such notice must be sent:
(i) if to you or your nominee, to you or it at
the address specified for such communications in Schedule A,
or at such other address as you or it shall have specified to
the Company in writing,
(ii) if to any other holder of any Note, to such
holder at such address as such other holder shall have
specified to the Company in writing, or
-37-
(iii) if to the Company or the Tenant, to the
Company at its respective address set forth at the beginning
hereof to the attention of the General Counsel, or at such
other address as the Company or the Tenant shall have
specified to the holder of each Note in writing.
Notices under this Section 18 will be deemed given only when actually received.
19. REPRODUCTION OF DOCUMENTS.
This Agreement, the Operative Agreements and all documents
relating thereto, including, without limitation, (a) consents, waivers and
modifications that may hereafter be executed. (b) documents received by you at
the Closing (except the Notes themselves), and (c) financial statements,
certificates and other information previously or hereafter furnished to you, may
be reproduced by you by any photographic, photostatic, microfilm, microcard,
miniature photographic or other similar process and you may destroy any original
document so reproduced. The Company agrees and stipulates that, to the extent
permitted by applicable law, any such reproduction shall be admissible in
evidence as the original itself in any judicial or administrative proceeding
(whether or not the original is in existence and whether or not such
reproduction was made by you in the regular course of business) and any
enlargement, facsimile or further reproduction of such reproduction shall
likewise be admissible in evidence. This Section 19 shall not prohibit the
Company or any other holder of Notes from contesting any such reproduction to
the same extent that it could contest the original, or from introducing evidence
to demonstrate the inaccuracy of any such reproduction. -
20. CONFIDENTIAL INFORMATION.
For the purposes of this Section 20, "Confidential
Information" means information delivered to you by or on behalf of the Company,
the Tenant or any Subsidiary in connection with the transactions contemplated by
or otherwise pursuant to this Agreement that is proprietary in nature and that
was clearly marked or labeled or otherwise adequately identified when received
by you as being confidential information of the Company, the Tenant or such
Subsidiary, provided that such term does not include information that (a) was
publicly known or otherwise known to you prior to the time of such disclosure,
(b) subsequently becomes publicly known through no act or omission by you or any
person acting on your behalf, (c) otherwise becomes known to you other than
through disclosure by the Company, the Tenant or any Subsidiary or (d)
constitutes financial statements delivered to you under Section 7.1 that are
otherwise publicly available. For purposes of this Section 20, "Confidential
Information" shall include the Memorandum and all financial statements delivered
by the Company or the Tenant pursuant to Section 7.1(a) and (b) of this
Agreement. You will maintain the confidentiality of such Confidential
Information in accordance with procedures adopted by you in good faith to
protect confidential information of third parties delivered to you, provided
that you may deliver or disclose Confidential Information to (i) your directors,
officers, employees, agents, attorneys and affiliates (to the extent such
disclosure reasonably relates to the administration of the investment
represented by your Notes), (ii) your financial advisors and other professional
advisors who agree to hold confidential the Confidential Information
substantially in accordance with the terms of this Section 20, (iii) any other
holder of any Note, (iv) any Institutional Investor to which you sell or offer
to sell such Note or any part thereof or any participation
-38-
therein (if such Person has agreed in writing prior to its receipt of such
Confidential Information to be bound by the provisions of this Section 20), (v)
any Person from which you offer to purchase any security of the Company or the
Tenant (if such Person has agreed in writing prior to its receipt of such
Confidential Information to be bound by the provisions of this Section 20), (vi)
any federal or state regulatory authority having jurisdiction over you, (vii)
the National Association of Insurance Commissioners or any similar organization,
or any nationally recognized rating agency that requires access to information
about your investment portfolio or (viii) any other Person to which such
delivery or disclosure may be necessary or appropriate (w) to effect compliance
with any law, rule, regulation or order applicable to you, (x) in response to
any subpoena or other legal process, (y) in connection with any litigation to
which you are a party or (z) if an Event of 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, this Agreement and/or
the Operative Agreements. Each holder of a Note, by its acceptance of a Note,
will be deemed to have agreed to be bound by and to be entitled to the benefits
of this Section 20 as though it were a party to this Agreement. On reasonable
request by the Company in connection with the delivery to any holder of a Note
of information required to be delivered to such holder under this Agreement or
requested by such holder (other than a holder that is a party to this Agreement
or its nominee), such holder will enter into an agreement with the Company
embodying the provisions of this Section 20.
21. SUBSTITUTION OF PURCHASER
You shall have the right to substitute any one of your
Affiliates as the purchaser of the Notes that you have agreed to purchase
hereunder, by written notice to the Company, which notice shall be signed by
both you and such Affiliate, shall contain such Affiliate's agreement to be
bound by this Agreement and shall contain a confirmation by such Affiliate of
the accuracy with respect to it of the representations set forth in Section 6.
Upon receipt of such notice, wherever the word "you" is used in this Agreement
(other than in this Section 21), such word shall be deemed to refer to such
Affiliate in lieu of you. In the event that such Affiliate is so substituted as
a purchaser hereunder and such Affiliate thereafter transfers to you all of the
Notes then held by such Affiliate,, upon receipt by the Company of notice of
such transfer, wherever the word "you" is used in this Agreement (other than in
this Section 21), such word shall no longer be deemed to refer to such
Affiliate, but shall refer to you, and you shall have all the rights of an
original holder of the Notes under this Agreement.
22. MISCELLANEOUS.
22.1. Successors and Assigns.
All covenants and other agreements contained in this Agreement
by or on behalf of any of the parties hereto bind and inure to the benefit of
their respective successors and assigns (including, without limitation, any
subsequent holder of a Note) whether so expressed or not.
-39-
22.2. Payments Due on Non-Business Days.
Anything in this Agreement, any Operative Agreement or the
Notes to the contrary notwithstanding, any payment of principal of or Make-Whole
Amount or interest on any Note that is due on a date other than a Business Day
shall be made on the next succeeding Business Day without including the
additional days elapsed in the computation of the interest payable on such next
succeeding Business Day.
22.3. Severability.
Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall (to the full extent permitted by law) not invalidate or
render unenforceable such provision in any other jurisdiction.
22.4. Construction.
Each covenant contained herein shall be construed (absent
express provision to the contrary) as being independent of each other covenant
contained herein, so that compliance with any one covenant shall not (absent
such an express contrary provision) be deemed to excuse compliance with any
other covenant. Where any provision herein refers to action to be taken by any
Person, or which such Person is prohibited from taking, such provision shall be
applicable whether such action is taken directly or indirectly by such Person.
22.5. Counterparts.
This Agreement may be executed in any number of counterparts,
each of which shall be an original but all of which together shall constitute
one instrument. Each counterpart may consist of a number of copies hereof, each
signed by less than all, but together signed by all, of the parties hereto.
22.6. Governing Law.
This Agreement shall be construed and enforced in accordance
with, and the rights of the parties shall be governed by, the law of the State
of Illinois excluding choice-of-law principles of the law of such State that
would require the application of the laws of a jurisdiction other than such
State.
* * * * *
-40-
If you are in agreement with the foregoing, please sign the
form of agreement on the accompanying counterpart of this Agreement and return
it to the Company, whereupon the foregoing shall become a binding agreement
between you and the Company.
Very truly yours,
HEWITT PROPERTIES IV LLC
By: /s/ C. Lawrence Connolly, III
----------------------------------
C. Lawrence Connolly III
Title: Manager and Assistant Secretary
----------------------------------
HEWITT ASSOCIATES, LLC,
For purposes of Sections 4, S, 7, 9, 10,
11 and 17 only,
By: /s/ John M. Ryan
----------------------------------
John M. Ryan
Title: Chief Administrative Officer
----------------------------------
The foregoing is hereby agreed
to as of the date thereof.
-41-
LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK
Lincoln Investment Management, Inc., Its
Attorney-in-Fact
By: /s/ Timothy L. Powell
---------------------------------------------
Name: Timothy L. Powell
-------------------------------------------
Title: Vice President
------------------------------------------
THE LINCOLN NATIONAL LIFE INSURANCE COMPANY
By: Lincoln Investment Management, Inc., Its
Attorney-in-Fact
By: /s/ Timothy L. Powell
---------------------------------------------
Name: Timothy L. Powell
-------------------------------------------
Title: Vice President
------------------------------------------
PACIFIC LIFE INSURANCE COMPANY
By: /s/ Cathy L. Schwartz
---------------------------------------------
Name: Cathy L. Schwartz
-------------------------------------------
Title: Assistant Vice President
------------------------------------------
By: /s/ Peter S. Fiek
---------------------------------------------
Name: Peter S. Fiek
-------------------------------------------
Title: Assistant Secretary
------------------------------------------
-42-
THE CANADA LIFE ASSURANCE COMPANY
By: /s/ C. Paul English
---------------------------------------------
Name: C. Paul English
-------------------------------------------
Title: Associate Treasurer
------------------------------------------
CANADA LIFE INSURANCE COMPANY OF AMERICA
By: /s/ C. Paul English
---------------------------------------------
Name: C. Paul English
-------------------------------------------
Title: Associate Treasurer
------------------------------------------
CANADA LIFE INSURANCE COMPANY OF NEW YORK
By: /s/ C. Paul English
---------------------------------------------
Name: C. Paul English
-------------------------------------------
Title: Associate Treasurer
------------------------------------------
PIONEER MUTUAL LIFE INSURANCE COMPANY
By: Advantus Capital Management, Inc.
By: /s/ Thomas A. Gunderson
---------------------------------------------
Name: Thomas A. Gunderson
-------------------------------------------
Title: Vice President
------------------------------------------
-43-
UNITY MUTUAL LIFE INSURANCE COMPANY
By: Advantus Capital Management, Inc.
By: /s/ John Leiviska
---------------------------------------------
Name: John Leiviska
-------------------------------------------
Title: Vice President
------------------------------------------
THE CATHOLIC AID ASSOCIATION
By: Advantus Capital Management, Inc.
By: /s/ John Leiviska
---------------------------------------------
Name: John Leiviska
-------------------------------------------
Title: Vice President
------------------------------------------
MUTUAL TRUST LIFE INSURANCE COMPANY
By: Advantus Capital Management, Inc.
By: /s/ John Leiviska
---------------------------------------------
Name: John Leiviska
-------------------------------------------
Title: Vice President
------------------------------------------
FARM BUREAU LIFE INSURANCE COMPANY OF MICHIGAN
By: Advantus Capital Management, Inc.
By: /s/ John Leiviska
---------------------------------------------
Name: John Leiviska
-------------------------------------------
Title: Vice President
------------------------------------------
-44-
GUARANTEE RESERVE LIFE INSURANCE COMPANY
By: Advantus Capital Management, Inc.
By: /s/ Dianne Orbison
---------------------------------------------
Name: Dianne Orbison
-------------------------------------------
Title: Vice President
------------------------------------------
GREAT WESTERN INSURANCE COMPANY
By: Advantus Capital Management, Inc.
By: /s/ Dianne Orbison
---------------------------------------------
Name: Dianne Orbison
-------------------------------------------
Title: Vice President
------------------------------------------
JACKSON NATIONAL LIFE INSURANCE COMPANY
By: PPM America, Inc., as attorney in fact, on
behalf of Jackson National Life Insurance
Company
By: /s/ James D. Young
---------------------------------------------
Name: James D. Young
-------------------------------------------
Title: James D. Young
------------------------------------------
-45-
SCHEDULE A
INFORMATION RELATING TO PURCHASER
PURCHASER AMOUNT
LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK $2,000,000
Account Name & Tax Id Numbers:
Lincoln Life & Annuity Company of New York
Tax ID# 16-1505436
Bank Custody # 98722
Principal & Interest Payment Transmitted Via Fed Wire To:
Bankers Trust Company
New York, NY; Aba #: 021001033
Private Placement Processing
A/C #: 99-911-145
For Further Cr To A/C: Linc Life & Annty Co. Of New York
Custody Account No.: See Above Custody Acct. #
(On Wire Ref: Sec. Name/Rate/Mat/Ppn/P=$/I=S)
Address For All Communication And Notice Of Payment:
Lincoln Investment Management, Inc.
200 East Berry Street, Renaissance Square
Fort Wayne, IN 46802
Attn: Investments/Private Placements
Fax: (219) 455-5499
Address For Notice Of Payment:
Bankers Trust Company
Attn: Private Placement Unit
P. O. Box 998; Church Street Station
New York, NY 10274
Fax: (615) 835-2493 Private Placements
1
Forward Securities To:
Bankers Trust Company
14 Wall Street, 4th Floor, Window #44
New York, NY 10005
Attn: Lorraine Squires (Tel. 212-618-2200)
Mail Stop 4049
(In Cover Letter Ref. Acct. Name & Custody Acct. #)
2
SCHEDULE A
INFORMATION RELATING TO PURCHASER
PURCHASER AMOUNT
LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK $2,000,000
Account Name & Tax Id Numbers:
Lincoln National Life Insurance Co. (Coin)
Tax Id #: 35-0472300
Custody # # 607175
Principal & Interest Payment Transmitted Via Fed Wire To:
Chase Manhattan Bank
New York, NY
Aba #: 021 00 0021
Chase Nyc/ Ctr/ Bnf A/C #900-9-000200
Further Credit: See Above Acct Name & Custody #
(Ref: Sec. Name/ Rate/ Mat/ Ppn/ P=$/ I=$)
Address For All Communication And Notice Of Payment:
Lincoln Investment Management, Inc.
200 East Berry Street, Renaissance Square
Fort Wayne, IN 46802
Attn: Investments/Private Placements
Fax: (219) 455-5499 Private Placements
Address For Notice Of Payment:
Chase Manhattan Bank, N.A.
Private Placement Servicing
P. O. Box 1508
Church Street Station New York, NY 10081
Fax: (212) 623-6422 Private Placements
3
Forward Securities To:
Chase Manhattan Bank
4 New York Plaza
11th Floor; Attention: Larry Zimmer
New York, NY 10004
For Acct: See Above Acct Name And Custody #
4
SCHEDULE A
INFORMATION RELATING TO PURCHASER
PURCHASER AMOUNT
LINCOLN NATIONAL LIFE INSURANCE CO. (SUR) $5,000,000
LINCOLN NATIONAL LIFE INSURANCE CO. (RDI) $3,000,000
Account Name & Tax Id Numbers: Bank Custody #:
Lincoln National Life Insurance Co. (Sur) 98449
Lincoln National Life Insurance Co. (Rdi) 98312
Tax ID# 35-0472300
Principal & Interest Payment Transmitted Via Fed Wire To:
Bankers Trust Company
New York, NY; Aba #: 021001033
Private Placement Processing
A/C #: 99-911-145
For Further Credit To A/C: See Above Acct. Name
Custody Account No.: See Above Custod): Acct. #
(On Wire Ref: Sec Name/ Rate/ Mat/ Ppn/ P=$/ I=$)
Address For All Communication And Notice Of Payment:
Lincoln Investment Management, Inc.
200 East Berry Street, Renaissance Square
Fort Wayne, IN 46802
Attn: Investments/Private Placements
Fax: (219) 455-5499 Private Placements
Address For Notice Of Payment:
Bankers Trust Company
Attn: Private Placement Unit
P. O. Box 998; Bowling Green Station
New York, NY 10274
Fax: (615) 835-2493 Crystal Jones,
Private Placements
5
Forward Securities To:
Bankers Trust Company
14 Wall Street, 4th Floor, Window #44
New York, NY 10005
Attn: Lorraine Squires (Tel. 212/618-2200)
Mailstop 4049
(In Cover Letter Ref. Acct. Name & Custody Acct. #)
6
SCHEDULE A
INFORMATION RELATING TO PURCHASER
PURCHASER AMOUNT
PACIFIC LIFE INSURANCE COMPANY $35,000,000
Nominee name in which Note is to be issued: Atwell & Co
General Tax ID#: 95-1079000
For Physical Delivery of Certificates:
The Chase Manhattan Bank
4 New York Plaza
11th Floor Window
New York, NY 10004
Attn.: Gemma McHugh 212/623-9163/8119
A/C Name: Pacific Life General Acct
A/C# 89930705
For Payment of Principal & Interest:
BBK=Chase Manhattan Bank/SSTO
ABA# 0210-0002-1
AC 900-9-002206
A/C Name: Pacific Life General Account/89930705
Sub A/C Number: 47363300
PPN#: 42822# AA 4
Security Description: Hewitt Properties IV LLC, 7.13% Secured Credit Tenant
Notes due February 27, 2020
All notices of payments and written confirmations of such wire transfers to:
The Chase Manhattan Bank
P.O. Box 456
Wall Street Station
New York, NY 10005
And
Pacific Life Insurance Company
Attn.: Securities Department
700 Newport Center Drive
Newport Beach, CA 92660-6397
7
SCHEDULE A
INFORMATION RELATING TO PURCHASER
PURCHASER AMOUNT
THE CANADA LIFE ASSURANCE COMPANY $2,500,000
Register note(s) in the name of nominee: J. Romeo & Co.
Courier/Uniformed Messengers with Notes to:
CHASE MANHATTAN BANK
4 New York Plaza, 11th Floor
Receive Window
New York, NY 10004-2477
Attention: Larry Zimmer - (212) 623-0987
for:
The Canada Life Assurance Company
Trust Account No. G52708
For Broker Delivery AGAINST PAYMENT (Secondary Market)
to: CHASE MANHATTAN BANK
4 New York Plaza, Ground Floor
Receive Window
New York, NY 10004-2477
For delivery problems: Call - Ms. Doll Balbadar (718) 242-1774
for: The Canada Life Assurance Company
Trust Account No. 652708
Make all payments regarding the Note(s) by bank wire transfer of Federal or
other immediately available funds
For regular Principal and Interest:
CHASE MANHATTAN BANK
ABA 021-000-021
A/C #900-9-000200
Trust Account No. 652708, The Canada Life Assurance Company
Attn: Bond Interest
REFER TO: CUSIP, name of issuer, rate, maturity date, type of security, whether
principal and/or interest and due date.
8
For our sale to a broker (Federal Wire Transfers - Cash):
CHASE MANHATTAN BANK
ABA 021-000-021
A/C #900-9-000168
Trust Account No. 652708, The Canada Life Assurance Company
Attn: Ms. Doll Balbadar
REFER TO: CUSIP, name of issuer, rate, maturity date, settlement date
For Call or Maturity:
CHASE MANHATTAN BANK
ABA 021-000-021
A/C #900-9-000192
Trust Account No. 652708, The Canada Life Assurance Company
Attn: Ms. Doll Balbadar
REFER TO: CUSIP, name of issuer, rate, maturity date, whether principal and/or
interest and effective date of call or maturity.
Send notices of payments and written confirmation of wire
transfers to:
CHASE MANHATTAN BANK
North America Insurance
3 Chase MetroTech Centre - 6/th/ Floor
Brooklyn, NY 11245
Attn: Ms. Doll Balbadar
copy to:
The Canada Life Assurance Company
330 University Avenue, SP-12
Toronto, Ontario, Canada MSG 1R8
Attn.- Supervisor, Securities Accounting
Send financial statements and all other communications to:
The Canada Life Assurance Company
U.S. Private Placements, SP-11
330 University Avenue
Toronto, Ontario, Canada MSG 1R8
Attn: PAUL ENGLISH, Treasurer, U.S
TAX IDENTIFICATION #38-0397420
9
SCHEDULE A
INFORMATION RELATING TO PURCHASER
PURCHASER AMOUNT
CANADA LIFE INSURANCE COMPANY OF AMERICA $2,000,000
Register note(s) in the name of nominee: J. Romeo & Co.
Courier/Uniformed Messengers with Notes to:
CHASE MANHATTAN BANK
4 New York Plaza, 11th Floor
Receive Window
New York, NY 10004-2477
Attention: Larry Zimmer - (212) 623-0987
for:
Canada Life Insurance Company of America
Trust Account No. G52709
For Broker Delivery AGAINST PAYMENT (Secondary Market):
to: CHASE MANHATTAN BANK
4 New York Plaza, Ground Floor
Receive Windows
New York, NY 10004-2477
For delivery problems: Call - Ms. Doll Balbadar (718) 242-1774
for: Canada Life Insurance Company of America
Trust Account No. 652709
Make all payments regarding the Note(s) by bank wire transfer of Federal or
other immediately available funds
For regular Principal and Interest:
CHASE MANHATTAN BANK
ABA 021-000-021
A/C 4900-9-000200
Trust Account No. 652709, Canada Life Insurance
Company of America
Attn: Ms. Doll Balbadar
REFER TO: CUSIP, name of issuer, rate, maturity date, type of security, whether
principal and/or interest and due date.
For our sale to a broker (Federal Wire Transfers - Cash):
10
CHASE MANHATTAN BANK
ABA 021-000-021
A/C #900-9-000168
Trust Account No. 652709, Canada Life Insurance
Company of America
Attn: Ms. Doll Balbadar
REFER TO: CUSIP, name of issuer, rate, maturity date, settlement date
For Call or Maturity:
CHASE MANHATTAN BANK
ABA 021-000-021
A/C #900-9-000192
Trust Account No. 652709, Canada Life Insurance
Company of America
Attn: Ms. Doll Balbadar
REFER TO: CUSIP, name of issuer, rate, maturity date, whether principal and/or
interest and effective date of call or maturity.
Send notices of payments and written confirmation of wire
transfers to:
CHASE MANHATTAN BANK
North America Insurance
3 Chase MetroTech Centre - 6/th/ Floor
Brooklyn, NY 11245
Attn: Ms. Doll Balbadar
copy to:
The Canada Life Assurance Company
330 University Avenue, SP-12
Toronto, Ontario, Canada M5G 1 R8
Attn: Supervisor, Securities Accounting
11
Send financial statements and all other communications to:
The Canada Life Assurance Company
U.S. Private Placements, SP-11
330 University Avenue
Toronto, Ontario, Canada MSG 1R8
Attn: PAUL ENGLISH, Treasurer, U.S.
TAX IDENTIFICATION #38-2816473
12
SCHEDULE A
INFORMATION RELATING TO PURCHASER
PURCHASER AMOUNT
CANADA LIFE INSURANCE COMPANY OF NEW YORK $500,000
Register notes) in the name of nominee: J. Romeo & Co.
Courier/Uniformed Messengers with Notes to:
CHASE MANHATTAN BANK
4 New York Plaza, 11th Floor
Receive Window
New York, NY 10004-2477
Attention: Larry Zimmer - (212) 623-0987
for:
Canada Life Insurance Company of New York
Trust Account No. 652685
For Broker Delivery AGAINST PAYMENT (Secondary Market):
to: CHASE MANHATTAN BANK
4 New York Plaza, Ground Floor
Receive Windows
New York, NY 10004-2477
For delivery problems: Call - Ms. Doll Balbadar (718) 242-1774
for: Canada Life Insurance Company of New York
Trust Account No. 652685
Make all payments regarding the Note(s) by bank wire transfer of Federal or
other immediately available funds
For regular Principal and Interest:
CHASE MANHATTAN BANK
ABA 021-000-021
A/C #900-9-000200
Trust Account No. 652685, Canada Life Insurance
Company of New York
Attn: Bond Interest
13
REFER TO: CUSIP, name of issuer, rate, maturity date, type of security, whether
principal and/or interest and due date.
For our sale to a broker (Federal Wire Transfers - Cash):
CHASE MANHATTAN BANK
ABA 021-000-021
A/C #900-9-000168
Trust Account No. G52685, Canada Life Insurance
Company of New York
Attn: Ms. Doll Balbadar
REFER TO: CUSIP, name of issuer, rate, maturity date, settlement date.
For Call or Maturity:
CHASE MANHATTAN BANK
ABA 021-000-021
A/C #900-9-000192
Trust Account No. G52685, Canada Life Insurance
Company of New York
Attn: Ms. Doll Balbadar
REFER TO: CUSIP, name of issuer, rate, maturity date, whether principal and/or
interest and effective date of call or maturity.
Send notices of payments and written confirmation of wire transfers to:
CHASE MANHATTAN BANK
North America Insurance
3 Chase MetroTech Centre - 6/th/ Floor
Brooklyn, NY 11245
Attn: Ms. Doll Balbadar
copy to:
The Canada Life Assurance Company
330 University Avenue, SP-12
Toronto, Ontario, Canada MSG 1R8
Attn.- Supervisor, Securities Accounting
14
Send financial statements and all other communications to:
The Canada Life Assurance Company
U.S. Private Placements, SP-11
330 University Avenue
Toronto, Ontario, Canada MSG 1R8
Attn: PAUL ENGLISH, Treasurer, US.
TAX IDENTIFICATION #13-2690792
15
SCHEDULE A
INFORMATION RELATING TO PURCHASER
PURCHASER AMOUNT
FARM BUREAU LIFE INSURANCE $4,000,000
COMPANY OF MICHIGAN
The Notes should be forwarded to the following address:
Comerica Bank
Attn: Dan Molnar MC 3462
411 West Lafayette
Detroit, MI 48226-3462
Reference: Farm Bureau Life Insurance Company of Michigan
Internal Account Number: 011000312124
All notices and statements should be sent to the following address:
Farm Bureau Life Insurance Company of Michigan
c/o Advantus Capital Management, Inc.
400 Robert Street North
St. Paul, MN 55101
Attn: Client Administrator
All payments on account of the Notes shall be made by wire transfer of
immediately available funds to:
Comerica Bank
Detroit, MI
ABA #072-000-096
For credit to: Trust Operation -- Fixed Income
Unit Cost Center 98530
Account Number: 21585-98530
For further credit to: Farm Bureau Life Insurance Company of Michigan
Account Number: 011000312124
Also, please reference sufficient information to identify the source
and application of such funds.
Tax ID.: 38-6053670
16
SCHEDULE A
INFORMATION RELATING TO PURCHASER
PURCHASER AMOUNT
MUTUAL TRUST LIFE INSURANCE COMPANY $2,000,000
The Notes being purchased for Mutual Trust Life Insurance Company should be
registered in the nominee name of "ELL & Co.".
The Notes should be forwarded to the following address:
Northern Trust Company of New York
40 Broad Street, 8th Floor
New York, NY 10004
Attn: Settlements for Account #26-00621
Mutual Trust Life Ins. Company
All notices and statements should be sent to the following address:
Mutual Trust Life Insurance Company
c/o Advantus Capital Management, Inc.
400 Robert Street North St. Paul, MN 55101
Attn: Client Administrator
All payments on account of the Notes shall be made by wire transfer of
immediately available funds to:
The Northern Chgo/Trust
ABA 4071-000-152
For credit to: Account Number: 5186041000
For further credit to: Mutual Trust Life Insurance
Company
Account Number: 26-00621
Attn: Income Collections
Also, please reference sufficient information to identify the source
and application of such funds.
Tax ID #36-1516780
17
SCHEDULE A
INFORMATION RELATING TO PURCHASER
PURCHASER AMOUNT
CATHOLIC AID ASSOCIATION (THE) $1,000,000
The Notes being purchased for The Catholic Aid Association should be registered
in the nominee name of "Var & Co.".
The Notes should be forwarded to the following address:
U.S. Bank Trust, N.A.
180 East Fifth Street
St. Paul, MN 55101
Attn: Marilyn Goldberg (SPFT 0901)
All notices and statements should be sent to the following address:
Catholic Aid Association (The)
c/o Advantus Capital Management, Inc.
400 Robert Street North St. Paul, MN 55101
Attn: Client Administrator
All payments on account of the Notes shall be made by wire transfer of
immediately available funds to:
U.S. Bank, N.A.
Minneapolis, MN
ABA 4091-000-022
For credit to: U.S. Bank Trust, N.A.
Account Number: 180121167365, TSU: 47300050
For further credit to: Catholic Aid Association (The)
Account Number: 12614950
Attn: Juleah Foss (651) 244-5958
Also, please reference sufficient information to identify the source
and application of such funds.
Tax ID.: 41-0182070
18
SCHEDULE A
INFORMATION RELATING TO PURCHASER
PURCHASER AMOUNT
PIONEER MUTUAL LIFE INSURANCE COMPANY $1,000,000
The Notes being purchased for Pioneer Mutual Life Insurance Company should be
registered in the name of "Polly & Co.".
The Notes should be forwarded to the following address with reference to "FREE
DELIVERY":
The Bank of New York
One Wall Street - 3rd Floor - Window A
New York, NY 10005
Account: NCT & Co. Fargo, #270576
Attention: Christine Burke, Telephone: (212) 635-4549
All notices and statements should be sent to the following address:
Pioneer Mutual Life Insurance Company
c/o Advantus Capital Management, Inc.
400 Robert Street North
St. Paul, MN 55101 Attn: Client Administrator
All payments on account of the Notes shall be made by wire transfer of
immediately available funds to:
Polly & Co.
c/o The Bank of New York
ABA #021-000-018 BNF: IOC566
Attn: P&I Dept., Robert Hoover
Also, please reference sufficient information to identify the source
and application of such funds.
Tax ID #45-0220640
19
SCHEDULE A
INFORMATION RELATING TO PURCHASER
PURCHASER AMOUNT
UNITY ANNUITY INSURANCE COMPANY $1,000,000
The Notes being purchased for Unity Mutual Insurance Company should be
registered in the name of "Trulin & Co.". The Notes should be forwarded to the
following address:
Chase Manhattan Bank
Attn: Ms. Roni Norkus
One Chase Square T-10
Rochester, NY 14643
All notices and statements should be sent to the following address:
Unity Mutual Life Insurance Company
c/o Advantus Capital Management, Inc.
400 Robert Street North
St. Paul, MN 55101
Attn: Client Administrator
All payments on account of the Notes shall be made by wire transfer of
immediately available funds to:
Chase NYC
ABA #021-000-021
For credit to: Chase Rochester
DDA4 0000400044
Attn: Ms. Roni Norkus (716) 258-7784
For further credit to: Unity Mutual Life Insurance Company
MIMLIC - 611002310
Also, please reference sufficient information to identify the source
and application of such funds.
Tax ID 915-0475585
20
SCHEDULE A
INFORMATION RELATING TO PURCHASER
PURCHASER AMOUNT
GUARANTEE RESERVE LIFE INSURANCE COMPANY $500,000
The Notes being purchased for Guarantee Reserve Life Insurance Company should be
registered in the nominee name of "Gant & Co.".
The Notes should be forwarded to the following address:
Mercantile National Bank of Indiana
Ref: Guarantee Reserve Life Insurance Company
5243 Hohman Avenue
Hammond, IN 46320
All notices and statements should be sent to the following address:
Guarantee Reserve Life Insurance Company
c/o Advantus Capital Management, Inc.
400 Robert Street North
St. Paul, MN 55101
Attn: Client Administrator
All payments on account of the Notes shall be made by wire transfer of
immediately available funds to
Mercantile National Bank of Indiana
Hammond, IN
ABA #071-912-813
For credit to: Guarantee Reserve Life Insurance Company
Attn: Trust Department, Geneva DeVine
Account Number: 287000
Also, please reference sufficient information to identify the source
and application of such funds.
Tax ID.: 35-0815760
21
SCHEDULE A
INFORMATION RELATING TO PURCHASER
PURCHASER AMOUNT
GREAT WESTERN INSURANCE COMPANY $500,000
The Notes being purchased for Great Western Insurance Company should be
registered in the nominee name of "Zions First National Bank for Great Western
Insurance Company". The Notes should be forwarded to the following address:
Great Western Insurance Company
Attn: Fred Meese
3434 Washington Boulevard
Ogden, UT 84401
All notices and statements should be sent to the following address:
Great Western Insurance Company
c/o Advantus Capital Management, Inc.
400 Robert Street North
St. Paul, MN 55101
Attn: Client Administrator
All payment on account of the Notes shall be made by wire transfer of
immediately available funds to:
Zions First National Bank
Salt Lake City, UT
ABA # 124-0000-54
For credit to: Great Western Insurance Company
Account Number: 80-00005-2
Also, please reference sufficient information to identify the source
and application of such funds.
22
Any checks (in lieu of wire transfer) should be sent to the following address:
Zions First National -- Bank Trust Department
P.O. Box 30880
Salt Lake City, UT 84130
Ref: Great Western Insurance Company
Tax Id 487-0395954
23
SCHEDULE A
INFORMATION RELATING TO PURCHASER
PURCHASER AMOUNT
JACKSON NATIONAL LIFE INSURANCE COMPANY $20,000,000
Name in which Note(s) are to be Jackson National Life Insurance Company
issued: By PPM America, Inc., as attorney in fact
Please wire all payments as follows:
NORTHERN TRUST CHGO
ABA #071-000-152
Credit Account #5186041000 (General ledger for all clients of Northern Trust)
For Further Credit to: 26-91241/Jackson National Life Insurance Company
Ref: Jackson National Life Insurance Company, PPN: 42822@ AA 4, 7.13%
Secured Credit Tenant Note Due February 27, 2020.
Attn: Tarsa Lewis
Physical securities (notes & certificates) should be delivered as follows:
Northern Trust Company
40 Broad Street, 19th Floor
Account #2691241 /Jackson National Life Insurance Company
New York, NY 10004
Attn: Jose Mero
Tel: (212) 701-7507
One copy of documents, notes and certificates, waivers, amendments, consents, as
well as periodical financial information and covenant compliance certificates
should be sent to:
Colin Atkins
PPM America, Inc.
225 West Wacker Drive, Suite 1200
Chicago, IL 60606-1228
Attn: Private Placements
Tel: (312) 634-2586
Fax: (312) 634-0054
Interest and principal payment notices should be faxed to the operations contact
and custodian bank as follows:
Susan Perrino Oscell Owens
Private Placements Northern Trust Company
PPM America Inc. 801 S. Canal Street, Floor C1N
24
225 West Wacker Drive Chicago, IL 60607
Chicago, IL 60606 Tel: 312-444-5754
Tel: 312-634-1205 Fax: 312-630-8179
Fax: 312-634-0054
Jackson National Life Insurance Company is incorporated in the State of Michigan
Employer's ID Number: 38-1659835
Its address is: 5901 Executive Drive, Lansing, MI 48909
25
SCHEDULE B
DEFINED TERMS
As used herein, the following terms have the respective meanings set
forth below or set forth in the Section hereof following such term:
"Affiliate" means, at any time, and with respect to any Person, (a)
any other Person that at such time directly or indirectly through one or more
intermediaries Controls, or is Controlled by, or is under common Control with,
such first Person, (b) any Person beneficially owning or holding, directly or
indirectly, 7% or more of any class of voting or equity interests of the
Company, the Tenant or any Subsidiary or any corporation of which the Company,
the Tenant and the Subsidiaries beneficially own or hold, in the aggregate,
directly or indirectly, 7% or more of any class of voting or equity interests;
and (c) any Manager or officer of the Company or the Tenant. As used in this
definition, "Control" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, by contract or otherwise.
Unless the context otherwise clearly requires, any reference to an "Affiliate"
is a reference to an Affiliate of the Company or the Tenant.
"Assignments of Leases and Rents" means those certain Assignment of
Leases and Rents, each dated as of April 22, 1999, from the Company to the
Collateral and Paying Agent, as agent for the Purchasers, relating to the
Florida Property and the Texas Property, respectively, and assigning the
Company's rights to receive rent under its leases, including the Leases.
"Business Day" means (a) for the purposes of Section 8.7 only, any day
other than a Saturday, a Sunday or a day on which commercial banks in New York
City are required or authorized to be closed, and (b) for the purposes of any
other provision of this Agreement, any day other than a Saturday, a Sunday or a
day on which commercial banks in Chicago, Illinois or Minneapolis, Minnesota are
required or authorized to be closed.
"Capital Lease" means, at any time, a lease with respect to which the
lessee is required concurrently to recognize the acquisition of an asset and the
incurrence of a liability in accordance with GAAP.
"Closing" is defined in Section 3.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time, and the rules and regulations promulgated thereunder from time to time.
"Collateral and Paying Agent" means Harris Trust and Savings Bank.
"Collateral Agency and Paying Agreement" means that certain Collateral
Agency and Paying Agreement, dated as of April 22, 1999, among the Company, the
Collateral and Paying Agent, the Tenant and the Purchasers.
1
"Company" means Hewitt Properties IV LLC, a limited liability company
organized under the laws of Illinois.
"Confidential Information" is defined in Section 20.
"Consolidated Funded Indebtedness" means Funded Indebtedness of the
Tenant and its Restricted Subsidiaries determined on a consolidated basis in
accordance with GAAP.
"Consolidated Net Capital" shall mean the consolidated members'
capital of the Tenant, as determined in accordance with GAAP, less Restricted
Investments in excess of 20% of consolidated members' capital of the Tenant.
"Consolidated Net Income" shall mean consolidated net income and net
losses of the Tenant and its Restricted Subsidiaries, as determined in
accordance with GAAP, after excluding the sum of (i) any net loss or any
undistributed net income of any Person in which the Tenant has an ownership
interest other than a Restricted Subsidiary; (ii) any net loss or any
undistributed net income of any Restricted Subsidiary prior to the date it
became a Restricted Subsidiary; (iii) any gain or net loss (net of any tax
effect) resulting from the sale of any capital assets other than in the ordinary
course of business; (iv) extraordinary, unusual, or nonrecurring gains or
losses; (v) gains resulting from the write-up of assets; (vi) any earnings of
any Restricted Subsidiary unavailable for payment to the Tenant or another
Restricted Subsidiary; (vii) proceeds of any insurance policy; and (viii)
reversal of any contingency reserves not created during the period.
"Consolidated Total Assets" means the total assets of the Tenant and
its Restricted Subsidiaries, determined on a consolidated basis in accordance
with GAAP.
"Current Indebtedness" shall mean, Indebtedness other than Funded
Indebtedness.
"Default" means an event or condition the occurrence or existence of
which would, with the lapse of time or the giving of notice or both, become an
Event of Default.
"Default Rate" means that rate of interest that is the greater of (i)
2% per annum above the rate of interest then payable under the Notes or (ii) 2%
over the rate of interest publicly announced by Harris Trust and Savings Bank in
Chicago, Illinois as its "base" or "prime" rate.
"Disposition" is defined in Section 10.9.
"Environmental Laws" means any and all Federal, state, local, and
foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or
governmental restrictions relating to pollution and the protection of the
environment or the release of any materials into the environment, including but
not limited to those related to hazardous substances or wastes, air emissions
and discharges to waste or public systems.
2
Schedule B
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the rules and regulations promulgated thereunder
from time to time in effect.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that is treated as a single employer together with the Company or
the Tenant under section 414 of the Code.
"Event of Default" is defined in Section 11.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Final Project Completion" shall have the meaning set forth in the
Lease.
"Florida Property" means that certain approximately 97 acre tract in
Orlando, Orange County, Florida being an approximately 360,000 square foot
office building and a parking structure for approximately 1300 vehicles.
"Foreign Pension Plan" means any plan, fund or other similar program
(a) established or maintained outside of the United States of America
by the Tenant or any Subsidiary thereof primarily for the benefit of the
employees (substantially all of whom are not citizens of, and not
residing in, the United States of America) of the Tenant or any
Subsidiary thereof, which plan, fund or other similar program provides
for retirement income for such employees or results in a deferral of
income for such employees in contemplation of retirement, and
(b) not otherwise subject to ERISA.
"Foreign Restricted Subsidiary" means any Restricted Subsidiary of the
Tenant organized under the laws of a country other than the United States.
"Funded Indebtedness" means all Indebtedness which would, in
accordance with GAAP, constitute long-term Indebtedness, including, but not
limited to, (a) any Indebtedness for borrowed money with a maturity more than
one year after the applicable date of determination, (b) any portion thereof
which is renewable at the option of the obligor for a period of more than one
year, (c) any Indebtedness outstanding under a revolving credit or similar
agreement providing for borrowings (and renewals and extensions thereof) over a
period of more than one year (including, without limitation, an option of such
obligor obligating the lender or lenders to extend credit over a period of one
year or more), (d) any Capitalized Lease obligation maturing more than one year
after the date as of which the computation was made and (e) any Guaranty with
respect to Funded Indebtedness of another Person.
"GAAP" means generally accepted accounting principles as in effect
from time to time in the United States of America.
"Governmental Authority" means
3
Schedule B
(a) the government of
(i) the United States of America or any State or other political
subdivision thereof, or
(ii) any jurisdiction in which the Company, the Tenant or any
Subsidiary conducts all or any part of its business, or which asserts
jurisdiction over any properties of the Company, the Tenant or any
Subsidiary, or
(b) any entity exercising executive, legislative, judicial, regulatory
or administrative functions of, or pertaining to, any such government.
"Guarantor" means Hewitt Holdings, as Guarantor under the Interim
Guaranty.
"Guaranty" means, with respect to any Person, any obligation (except
the endorsement in the ordinary course of business of negotiable instruments for
deposit or collection) of such Person guaranteeing or in effect guaranteeing any
indebtedness, dividend or other obligation of any other Person in any manner,
whether directly or indirectly, including (without limitation) obligations
incurred through an agreement, contingent or otherwise, by such Person:
(a) to purchase such indebtedness or obligation or any property
constituting security therefor;
(b) to advance or supply funds (i) for the purchase or payment of such
indebtedness or obligation, or (ii) to maintain any working capital or
other balance sheet condition or any income statement condition of any
other Person or otherwise to advance or make available funds for the
purchase or payment of such indebtedness or obligation;
(c) to lease properties or to purchase properties or services
primarily for the purpose of assuring the owner of such indebtedness or
obligation of the ability of any other Person to make payment of the
indebtedness or obligation; or
(d) otherwise to assure the owner of such indebtedness or obligation
against loss in respect thereof.
In any computation of the indebtedness or other liabilities of the obligor under
any Guaranty, the indebtedness or other obligations that are the subject of such
Guaranty shall be assumed to be direct obligations of such obligor.
"Hazardous Material" means any and all pollutants, toxic or hazardous
wastes or any other substances that might pose a hazard to health or safety, the
removal of which may be required or the generation, manufacture, refining,
production, processing, treatment, storage, handling, transportation, transfer,
use, disposal, release, discharge, spillage, seepage, or filtration of which is
or shall be restricted, prohibited or penalized by any applicable law
(including, without limitation, asbestos, urea formaldehyde foam insulation and
polychlorinated biphenyls).
4
Schedule B
"Hewitt Holdings" means Hewitt Holdings LLC, a limited liability
company organized under the laws of Illinois.
"holder" means, with respect to any Note, the Person in whose name such
Note is registered in the register maintained by the Company pursuant to Section
13.1.
"Indebtedness" with respect to any Person means, at any time, without
duplication,
(a) its liabilities for borrowed money and its redemption obligations
in respect of mandatorily redeemable Preferred Stock;
(b) its liabilities for the deferred purchase price of property
acquired by such Person (excluding accounts payable arising in the
ordinary course of business but including all liabilities created or
arising under any conditional sale or other title retention agreement
with respect to any such property);
(c) all liabilities appearing on its balance sheet in accordance with
GAAP in respect of Capital Leases;
(d) all liabilities for borrowed money secured by any Lien with
respect to any property owned by such Person (whether or not it has
assumed or otherwise become liable for such liabilities);
(e) all its liabilities in respect of letters of credit or instruments
serving a similar function issued or accepted for its account by banks
and other financial institutions (whether or not representing
obligations for borrowed money);
(f) Swaps of such Person; and
(g) any Guaranty of such Person with respect to liabilities of a type
described in any of clauses (a) through (f) hereof.
Indebtedness of any Person shall include all obligations of such Person of the
character described in clauses (a) through (g) to the extent such Person remains
legally liable in respect thereof notwithstanding that any such obligation is
deemed to be extinguished under GAAP.
"Institutional Investor" means (a) any original purchaser of a Note,
(b) any holder of a Note holding more than 5% of the aggregate principal amount
of the Notes then outstanding, and (c) any bank, trust company, savings and loan
association or other financial institution, any pension plan, any investment
company, any insurance company, any broker or dealer, or any other similar
financial institution or entity, regardless of legal form.
"Interests" is defined in Section 10.10.
5
Schedule B
"Interim Guaranty" means that certain Guaranty Agreement, dated as of
April 22, 1999, from Hewitt Holdings to the Purchasers.
"Leases" means those certain Lease Agreements dated as of April 22,
1999, between the Company and the Tenant with respect to the Florida Property
and the Texas Property.
"Lien" means, with respect to any Person, any mortgage, lien, pledge,
charge, security interest or other encumbrance, or any interest or title of any
vendor, lessor, lender or other secured party to or of such Person under any
conditional sale or other title retention agreement or Capital Lease, upon or
with respect to any property or asset of such Person (including in the case of
stock, stockholder agreements, voting trust agreements and all similar
arrangements).
"Make-Whole Amount" is defined in Section 8.7.
"Manager" shall mean "Manager" as such term is defined in the
Operating Agreement or the Tenant Operating Agreement.
"Material" means (i) with respect to the Company, material in relation
to the business, operations, affairs, financial condition, assets, properties or
prospects of the Company and (iii) with respect to the Tenant, material in
relation to the business, operations, affairs, financial condition, assets,
properties, or prospects of the Tenant and its Subsidiaries taken as a whole.
"Material Adverse Effect" means (i) with respect to the Company, a
material adverse effect on (x) the business, operations, affairs, financial
condition, assets or properties of the Company (y) the ability of the Company to
perform its obligations under this Agreement, the Operative Agreements and the
Notes, (z) the validity or enforceability of the Agreement, the Operative
Agreements or the Notes and (ii) with respect to the Tenant, a material adverse
effect on (a) the business, operations, affairs, financial condition, assets or
properties of the Tenant or the Subsidiaries taken as a whole, or (b) the
ability of the Tenant to perform its obligations under this Agreement and the
Operative Agreements, or (c) the validity or enforceability of this Agreement
and the Operative Agreements.
"Memorandum" is defined in Section 5.3.
"Mortgages" means that certain Mortgage and Security Agreement, dated
as of April 22, 1999, executed by the Company, granting to the Collateral and
Paying Agent, on behalf of the holders of the Notes, a first mortgage Lien on
the Florida Property and that certain Deed of Trust and Security Agreement
executed by the Company in favor of James J. Tyler, trustee for the benefit of
the Collateral and Paying Agent, a first mortgage lien on the Texas Property,
respectively.
"Multiemployer Plan" means any Plan that is a "multiemployer plan" (as
such term is defined in section 4001(a)(3) of ERISA).
6
Schedule B
"Notes" is defined in Section 1.
"Officer's Certificate" means a certificate of a Senior Financial
Officer or of any other officer of the Company or the Tenant, as applicable,
whose responsibilities extend to the subject matter of such certificate.
"Operating Agreement" means the Operating Agreement of the Company as
amended from time to time.
"Operative Agreements" means the Agreement, the Notes, the Interim
Guaranty, the Leases, the Security Documents and the Collateral Agency and
Paying Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA or any successor thereto.
"Permitted Investments" means clauses (ii), (iii), (iv), (v) and (vi)
of the definition of Restricted Investments.
"Person" means an individual, partnership, corporation, limited
liability company, association, trust, unincorporated organization, or a
government or agency or political subdivision thereof.
"Plan" means an "employee benefit plan" (as defined in section 3(3) of
ERISA) that is or, within the preceding five years, has been established or
maintained, or to which contributions are or, within the preceding five years,
have been made or required to be made, by the Company or any ERISA Affiliate or
with respect to which the Company, the Tenant or any ERISA Affiliate may have
any liability.
"Preferred Stock" means any class of capital stock of a corporation
that is preferred over any other class of capital stock of such corporation as
to the payment of dividends or the payment of any amount upon liquidation or
dissolution of such corporation.
"Property" means the Florida Property and the Texas Property.
"property" or "properties" means, unless otherwise specifically
limited, real or personal property of any kind, tangible or intangible, choate
or inchoate.
"QPAM Exemption" means Prohibited Transaction Class Exemption 84-14
issued by the United States Department of Labor.
"Required Holders" means, at any time, the holders of at least 51 % in
principal amount of the Notes at the time outstanding (exclusive of Notes then
owned by the Company, the Tenant or any of its or their Affiliates).
"Responsible Officer" means any Manager, Senior Financial Officer or
any other officer of the Company, or the Tenant, as the case may be, with
responsibility for the administration of the relevant portion of this Agreement.
7
Schedule B
"Restricted Investments" means any investment in securities or
extensions of credit by the Tenant and its Restricted Subsidiaries other than:
(i) existing investments owned by the Tenant or any Restricted
Subsidiary and listed on Schedule C hereto;
(ii) direct obligations of the U.S. Government or any agency or
instrumentality thereof or obligations guaranteed by the full faith
and credit of the United States of America maturing no later than
three years from the date of acquisition;
(iii) certificates of deposit and banker's acceptances issued by
commercial banks or trust companies organized under the laws of the
United States or any State thereof, each having capital, surplus and
undivided profits aggregating $100,000,000 and ratings of its
long-term unsecured debt obligations by Standard & Poor's Corp. or
Moody's Investors Service of at least "AA" or "Aa2," respectively;
(iv) commercial paper of a U.S. domestic issuer rated no lower
than "A-2" by Standard & Poor's Corp. or "P-2" by Moody's Investors
Service and maturing not more than 270 days after the date of
acquisition;
(v) investment obligations in direct obligations of any state
or municipality within the United States maturing no later than three
years from the date of acquisition and rated at least "AA" by Standard
& Poor's Corp. or "Aa2" by Moody's Investors
(vi) investments in or loans to Restricted Subsidiaries or
companies that will immediately, as a result of such investment,
become Restricted Subsidiaries;
(vii) investments in money market investment programs rated at
least "AA" by Standard & Poor's Corp. and "Aa" by Moody's Investors
Service, the investment of which is classified as a current asset in
accordance with GAAP; and
(viii) property to be used in the ordinary course of business.
As of the date of any determination, each Restricted Investment shall be valued
at the greater of (a) cost or (b) the value of such Restricted Investments as
shown on the books of the Tenant and as determined in accordance with GAAP (or
zero if such Restricted Investment is not shown on such books).
"Restricted Subsidiary" means any Subsidiary (i) of which at least 80%
of the voting securities are owned by the Tenant and/or one or more Wholly-Owned
Restricted Subsidiaries, (ii) which is organized under the laws of the United
States or any state thereof, Canada, Europe, Mexico, South America, Asia, Japan
or Australia, (iii) which maintains substantially all of its assets and conducts
substantially all of its business within the United States, Canada, Europe,
Mexico, South America, Asia, Japan or
8
Schedule B
Australia and (iv) which the Tenant has designated a Restricted Subsidiary by
notice in writing given to the holders of the Notes.
"Sale and Lease-Back Transaction" means any arrangement, directly or
indirectly, with any Person whereby a seller or a transferor shall sell or
otherwise transfer any real or personal property and then or thereafter lease
(whether or not a Capital Lease), or repurchase under an extended purchase
contract, the same or similar property from the purchaser or the transferee of
such property.
"Securities Act" means the Securities Act of 1933, as amended from
time to time.
"Security Documents" means the Mortgages, the Assignments of Leases
and Rents, the Subordination Agreements and any other agreements, filings,
financing statements entered into in connection therewith or pursuant to the
terms of the Agreement or the Operative Agreements.
"Senior Financial Officer" means the chief financial officer, chief
administrative officer, principal accounting officer, treasurer or comptroller
of the Company or the Tenant, as the case may be.
"Subordinated Indebtedness" means any Indebtedness which, in any
manner, is subordinated in right of payment to the Indebtedness evidenced by the
Notes.
"Subordination Agreement" means those certain Agreements of
Subordination, Nondisturbance and Attornment dated as of April 22, 1999 between
Tenant and Collateral and Paying Agent.
"Subsequent Closings" is defined in Section 3.
"Subsidiary" means, as to any Person, any corporation, association or
other business entity in which such Person or one or more of its Subsidiaries or
such Person and one or more of its Subsidiaries owns sufficient equity or voting
interests to enable it or them (as a group) ordinarily, in the absence of
contingencies, to elect a majority of the directors (or Persons performing
similar functions) of such entity, and any partnership or joint venture if more
than a 50% interest in the profits or capital thereof is owned by such Person or
one or more of its Subsidiaries or such Person and one or more of its
Subsidiaries (unless such partnership can and does ordinarily take major
business actions without the prior approval of such Person or one or more of its
Subsidiaries). Unless the context otherwise clearly requires, any reference to a
"Subsidiary" is a reference to a Subsidiary of the Tenant.
"Swaps" means, with respect to any Person, payment obligations with
respect to interest rate swaps, currency swaps and similar obligations
obligating such Person to make payments, whether periodically or upon the
happening of a contingency. For the purposes of this Agreement, the amount of
the obligation under any Swap shall be the amount determined in respect thereof
as of the end of the then most recently ended fiscal quarter of such Person,
based on the assumption that such Swap had terminated at the end of such fiscal
quarter, and in making such determination, if any agreement relating to
9
Schedule B
such Swap provides for the netting of amounts payable by and to such Person
thereunder or if any such agreement provides for the simultaneous payment of
amounts by and to such Person, then in each such case, the amount of such
obligation shall be the net amount so determined.
"Taxes" shall mean all Federal, state, local or other taxing
authority, income, franchise, sales use ad valorem. property, payroll, social
security, unemployment assets, value added, withholding, excise, severance,
transfer, employment alternative or add-on minimum taxes and other taxes,
charges, fees, levies, imposts, duties, licenses and other assessments together
with any interest and any penalties, additions to tax or additional amounts
imposed by any taxing authority.
"Tax Return" shall mean any return, declaration, report, claim for
refund or information return (including but not limited to partnership returns)
relating to Taxes, including but not limited to any schedule or attachment
thereto.
"Tenant" means Hewitt Associates LLC as tenant under the Leases.
"Texas Property" means that certain approximately 77 acre tract in The
Woodlands, Montgomery County, Texas being an approximately 438,000 square foot
office building and related parking.
"Tenant Operating Agreement" means the Operating Agreement of Tenant
as amended from time to time.
"Total Capitalization" shall mean the sum of (i) Consolidated Funded
Indebtedness and (ii) Consolidated Net Capital and (iii) solely for the purpose
of calculating the limitation on Current Indebtedness, Current Indebtedness of
the Tenant and its Restricted Subsidiaries (determined on a consolidated basis
in accordance with GAAP).
"Unrestricted Subsidiary" shall mean any Subsidiary not designated a
Restricted Subsidiary.
"Wholly-Owned Restricted Subsidiary" means, at any time, any
Restricted Subsidiary one hundred percent (100%) of all of the equity interests
(except (i) directors' qualifying shares, (ii) shares not in excess of 5% of the
outstanding shares of any Foreign Restricted Subsidiary issued to a Person
employed by such Foreign Restricted Subsidiary and (iii) shares not in excess of
1% (3.5% in the case of the Tenant's German Foreign Restricted Subsidiary) of
the outstanding shares of a Foreign Restricted Subsidiary issued to Hewitt
Holdings) and voting interests of which are owned by any one or more of the
Tenant and the Tenant's other Wholly-Owned Restricted Subsidiaries at such time.
10
Schedule B
NOTE PURCHASE AGREEMENT
HEWITT PROPERTIES IV LLC
$85,000,000 Principal Amount
Secured Credit Tenant Notes
Due 2020
SCHEDULE C
Existing Investments
NONE
Schedule C
NOTE PURCHASE AGREEMENT
HEWITT PROPERTIES IV LLC
$85,000,000 Principal Amount
Secured Credit Tenant Notes
Due February 27, 2020
SCHEDULE 4.9
Effective January 1, 1999, the branch operations of Tenant in Canada and Coles
Hewitt (15% owned by Tenant and 85% owned by The Coles Group) were converted
into Hewitt Associates, an Ontario general partnership.
Schedule 4.9
NOTE PURCHASE AGREEMENT
HEWITT PROPERTIES IV LLC
$85,000,000 Principal Amount
Secured Credit Tenant Notes
Due 2020
SCHEDULE 5.3
Any Changes to Company, Tenant or Subsidiaries Not
Previously Disclosed Expected to Have a Material Adverse Effect
NONE
Schedule 5.3
NOTE PURCHASE AGREEMENT
HEWITT PROPERTIES 1V LLC
$85,000,000 Principal Amount
Secured Credit Tenant Notes
Due February 27, 2020
SCHEDULE 5.4
(i) List of Subsidiaries of Tenant (exclusive of Subsidiaries which
individually and in the aggregate are not Material)
a) Foreign subsidiaries
Country City Name Structure
Australia** Sydney Hewitt Associates Pty. Ltd. Wholly-owned subsidiary of
Hewitt Associates LLC*
Belgium** Brussels Hewitt Associates, S.A. Wholly-owned subsidiary of
Hewitt Associates LLC(as of 9/30/97)*
Canada Toronto 3412822 Canada Inc. Wholly-owned subsidiary of
Hewitt Associates LLC
Canada Toronto 3409635 Canada Inc. Wholly-owned subsidiary of
Hewitt Associates LLC
Canada Toronto 3025228 Nova Scotia Company. Wholly-owned subsidiary of
Hewitt Associates LLC
Chile** Santiago Hewitt Associates (Chile) 99% Hewitt Associates LLC
Limitada 1% Hewitt Holdings LLC
China** Shanghai Hewitt Eastgate (Shanghai) Wholly-owned subsidiary of
Consulting Co. Ltd Hewitt Associates LLC*
France** Paris Hewitt Associates SARL Wholly-owned subsidiary of
Hewitt Associates LLC*
Germany** Wiesbaden Hewitt Associates GmbH 96.5% held by Hewitt Associates LLC
and 3.5% held by Hewitt Holdings LLC
Indonesia** Jakarta PT Hewitt Konsultan Indonesia Wholly-owned subsidiary of
Hewitt Associates LLC*
Italy** Milan Hewitt Associates Srl Wholly-owned subsidiary of
Hewitt Associates LLC*
Japan** Tokyo Hewitt Associates Wholly-owned subsidiary of
Hewitt Associates LLC*
Korea** Hewitt Associates Korea LLC Wholly-owned subsidiary of
Hewitt Associates LLC
Malaysia** Kuala Lumpur Hewitt Associates SDN. BHD Wholly-owned subsidiary of
Hewitt Associates LLC
New Zealand** Wellington Hewitt Associates Limited Wholly-owned subsidiary of
Hewitt Associates LLC*
Poland** Warsaw Hewitt Associates Wholly-owned subsidiary of
Hewitt Associates LLC*
Singapore** Singapore Hewitt Associates Pte. Ltd. Wholly-owned subsidiary of
Hewitt Associates LLC*
Spain** Madrid Hewitt Associates, S.A. Wholly-owned subsidiary of
Hewitt Associates LLC*
Thailand** Bangkok Hewitt Associates Wholly-owned subsidiary of
(Thailand) Limited Hewitt Associates LLC*
_______________
** Designates a Restricted Subsidiary.
* Wholly-owned" means that at least 99% of the ownership interest in these
subsidiaries is held by Hewitt Associates LLC and affiliates.
United St. Albans Hewitt Associates Limited Wholly-owned subsidiary of
Kingdom** Hewitt Associates LLC*
b) Other
Annod Corp.**, a Delaware corporation (wholly-owned subsidiary of
Hewitt Associates LLC)
(ii) List of Affiliates of Tenant
a) Foreign affiliates
Country City Name Structure
Argentina Buenos Aires Hewitt Associates, S.A. 40% held by Hewitt Associates LLC
and 60% by Alberto Eastman
Austria Vienna Hewitt, Rottig & Rutkowski 40% held by Hewitt Associates LLC
Human Resources Consultants and 60% owned by Paul Roettig and
GmbH Hans Rutkowski
Brazil Sao Paulo Hewitt Associates S.C. 40% held by Hewitt Associates LLC ,
Limitada 59% held by shareholders of Huggard
Caine S.C. Ltda and 1% held by
Andrea Huggard Caine
Canada Toronto Hewitt Associates Ontario general partnership
Calgary comprised of Hewitt Associates LLC
Vancouver and professional services
corporations owned by Hewitt Holding
LLC's Canada-based Owners
Chile Santiago Hewitt Associates (Chile) 40% held by Hewitt Associates LLC
and 60% held by Patricia Waldbaum
India Bangalore Noble & Hewitt (India) 33.3% held by Hewitt Associates LLC
Mumbai Pvt. Ltd. and 66.7% held by Noble House
New Delhi principals
Ireland Dublin Hewitt Associates Limited Branch Office of Hewitt Associates
Limited (United Kingdom)
Mexico Mexico City Intergamma De Mexico S. de 25% held by Hewitt Associates LLC and
R.L de C.V. 75% held by 12 partners of Intergamma
Netherlands Amsterdam Hewitt & Koelman 50/50 joint venture between
Eindhoven International, Hewitt Associates LLC and Heijnis &
Rotterdam BV. (HKI) Koelman BV. The Dutch partner holds
Utrecht one preference share.
Netherlands Amsterdam Heijnis & Koelman B.V. 30% held by Hewitt Associates LLC
and 70% held by individual owners
Philippines Manila Hewitt Strat Asia Inc. 40% held by Hewitt Associates LLC
and 60% held by Strat Asia, Inc.
Puerto Rico San Juan Hewitt Associates Caribe, Inc. 40% held by Hewitt Associates LLC
and 60% held by Caribe, Inc.
principals
Switzerland Neuchatel PRASA Hewitt International Registered name PRASA HEWITT A.G.
Geneva A.G. (PHI) 44.5% held by Hewitt Associates LLC
Zurich and 55.5% held by PRASA
Venezuela Caracas Hewitt Associates Branch office of Hewitt Associates
Caribe, Inc.
b) Other affiliates
The Bayview Trust, an Illinois trust (100% of the beneficial
interest held by Hewitt Holdings LLC);
2
Schedule B
Overlook Associates, an Illinois partnership (51% held by Hewitt
Holdings LLC and 49% held by Tower Parkway Associates);
Hewitt Holdings LLC , an Illinois limited liability company (holder
of 100% of interest in Hewitt Associates LLC, Hewitt Properties I
LLC, Hewitt Properties B LLC, and Hewitt Services LLC);
Hewitt Services LLC, an Illinois limited liability company (100%
held by Hewitt Holdings LLC);
Hewitt Distributions LLC, an Illinois limited liability company (99%
held by Hewitt Associates LLC and 1 % held by Annod Corporation, a
Delaware Corporation);
Hewitt Properties I LLC, an Illinois limited liability company (100%
held by Hewitt Holdings LLC); and
Hewitt Properties II LLC, an Illinois limited liability company
(100% held by Hewitt Holdings LLC).
Hewitt Properties III LLC, an Illinois limited liability company
(100% held by Hewitt Holdings LLC); and
Hewitt Properties IV LLC, an Illinois limited liability company
(100% held by Hewitt Holdings LLC).
(iii) List of Subsidiaries of Company
None
(iv) List of Affiliates of Company
a) Foreign affiliates
All Foreign Subsidiaries and Foreign Affiliates Listed for Tenant.
b) Other affiliates
The Bayview Trust, an Illinois trust (100% of the beneficial
interest held by Hewitt Holdings LLC );
Overlook Associates, an Illinois partnership (51 % held by Hewitt
Holdings LLC and 49% held by Tower Parkway Associates);
Hewitt Associates LLC, an Illinois limited liability company (100%
held by Hewitt Holdings LLC);
3
Schedule B
Hewitt Holdings LLC, an Illinois limited liability company (holder of
100% of interest in Hewitt Associates LLC, Hewitt Properties I LLC,
Hewitt Properties II LLC> and Hewitt Services LLC);
Hewitt Services LLC , an Illinois limited liability company (100% held
by Hewitt Holdings LLC);
Hewitt Distributions LLC , an Illinois limited liability company (99%
held by Hewitt Associates LLC and 1 % held by Annod Corporation, a
Delaware Corporation): and
Hewitt Properties I LLC, an Illinois limited liability company (100%
held by Hewitt Holdings LLC).
Hewitt Properties II LLC, an Illinois limited liability company (100%
held by Hewitt Holdings LLC).
Hewitt Properties IV LLC, an Illinois limited liability company (100%
held by Hewitt Holdings LLC).
(v) List of Managers/Senior Officers of Company
Dale L. Gifford Chief Executive/Manager
Jerry R. Westwood Manager of Real Estate
Rosemary E. Tagge Secretary
C. Lawrence Connolly, III Assistant Secretary/Manager
Peter E. Ross Assistant Secretary
John M. Ryan Assistant Secretary/Manager
(vi) List of Managers/Senior Officers of Tenant
Gerald I. Wilson Chairman of Executive Committee of
Hewitt Holdings
Dale L. Gifford Chief Executive/Manager
John M. Ryan Chief Administrative Officer/
Manager/Assistant Secretary
Dan DeCanniere Chief Financial Officer
Thomas L. Schmitz Practice Leader for the Total
Benefit Administration Services
Rosemary E. Tagge Secretary
C. Lawrence Connolly, III Assistant Secretary/Manager
Peter E. Ross Assistant Secretary.
Kent E. Levihn Director of Insurance
4
Schedule B
NOTE PURCHASE AGREEMENT
HEWITT PROPERTIES IV LLC
$85,000,000 Principal Amount
Secured Credit Tenant Notes
Due February 27, 2020
SCHEDULE 5.5
Financial Statements Provided to Purchasers
Audited consolidated balance sheets of Hewitt Associates, an Illinois limited
liability company, and subsidiaries as of September 30, 1994 and 1993, and the
related consolidated statements of income and cash flows for the years then
ended.
Audited consolidated balance sheets of Hewitt Associates LLC, an Illinois
limited liability company, and subsidiaries as of September 30, 1998, 1997, 1996
and 1995, and the related consolidated statements of income and cash flows for
the years then ended.Hewitt Associates LLC (Unaudited) Consolidated Balance
Sheet, Statement of Operations, and Statement of Cash Flow for the periods
ending December 31, 1998, 1997 and 1996.
Schedule 5.5
NOTE PURCHASE AGREEMENT
HEWITT PROPERTIES IV LLC
$85,000,000 Principal Amount
Secured Credit Tenant Notes
Due 2020
SCHEDULE 10.7
Liens
NONE
Schedule 10.7
EXHIBIT I
[FORM OF NOTE]
HEWITT PROPERTIES IV LLC
SECURED CREDIT TENANT NOTE DUE FEBRUARY 27, 2020
No. [_______] [Date]
$[_______] PPN 42822@ AA 4
FOR VALUE RECEIVED, the undersigned, HEWITT PROPERTIES IV LLC (herein
called the "Company"), a limited liability company organized and existing under
the laws of the State of Illinois, hereby promises to pay to
______________________, or registered assigns, the principal sum of
__________________ DOLLARS ($__________) on February 27, 2020, with interest
only on the unpaid balance thereof at the rate of 7.13% per annum from the date
hereof, payable on the twenty-seventh day of the month commencing May 27, 1999
and on the twenty-seventh day of each month thereafter through and until
February 27, 2000 and thereafter in installments of interest and principal on
the twenty-seventh day of each month as set forth in Schedule 8.1 to the Note
Purchase Agreement (as defined below) until the principal hereof shall have
become due and payable, and to the extent permitted by law on any overdue
payment (including any overdue prepayment) of principal, any overdue payment of
interest and any overdue payment of any Make-Whole Amount (as defined in the
Note Purchase Agreement), payable as aforesaid (or, at the option of the
registered holder hereof, on demand), at a rate per annum from time to time
equal to the greater of (i) 2% over the rate then due on the Note or (ii) 2%
over the rate of interest publicly announced by Harris Trust and Savings Bank
from time to time in Chicago, Illinois as its "base" or "prime" rate.
Payments of principal of, interest on and any Make-Whole Amount with
respect to this Note are to be made in lawful money of the United States of
America in the manner and at such places as provided in the Note Purchase
Agreement referred to below.
This Note is one of a series of Secured Credit Tenant Notes (herein
called the "Notes") issued pursuant to the Note Purchase Agreement, dated as of
April 22, 1999 (as from time to time amended, the "Note Purchase Agreement"),
between the Company and the respective Purchasers named therein and is entitled
to the benefits thereof. Reference is made to the Note Purchase Agreement for a
statement of such benefits and a description of certain collateral securing the
Notes. Each holder of this Note will be deemed, by its acceptance hereof, (i) to
have agreed to the confidentiality provisions set forth in Section 20 of the
Note Purchase Agreement and (ii) to have made the representation set forth in
Section 6.1 of the Note Purchase Agreement. This Note is secured by and entitled
to the benefits of the Operative Agreements (as defined in the Note Purchase
Agreement).
This Note is a registered Note and, as provided in the Note Purchase
Agreement, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Company may treat the person in whose name this
Note is registered as the owner hereof for the purpose of receiving payment and
for all other purposes, and the Company will not be affected by any notice to
the contrary.
The Company will make required prepayments of principal on the dates
and in the amounts specified in the Note Purchase Agreement. This Note is also
subject to optional prepayment, in whole or from time to time in part, at the
times and on the terms specified in the Note Purchase Agreement, but not
otherwise.
If an Event of Default, as defined in the Note Purchase Agreement,
occurs and is continuing, the principal of this Note may be declared or
otherwise become due and payable in the manner, at the price (including any
applicable Make-Whole Amount) and with the effect provided in the Note Purchase
Agreement.
The invalidity, or unenforceability in particular circumstances, of any
provision of this Note shall not extend beyond such provision or such
circumstances, and no other provision of this instrument shall be affected
thereby. As used in this Note, the term "Maximum Legal Rate of Interest" shall
mean and refer to the maximum non-usurious rate of interest, if any, that may be
lawfully contracted for, charged, taken, reserved or received by the holder
hereof from the Company in connection with the indebtedness evidenced hereby and
by the Operative Documents and in regard to which the Company would be prevented
successfully from raising the claim or defense of usury under applicable law as
now, or to the extent permitted by law, as may hereafter be, in effect (said law
permitting the highest rate being referred to in this Note as the "Interest
Law"). It is the intention of the holder hereof and the Company to conform
strictly to the Interest Law applicable to this transaction. Accordingly, it is
agreed that notwithstanding any provision to the contrary in this Note or in any
of the documents securing payment hereof or otherwise relating hereto, the
aggregate of all interest and any other charges or consideration constituting
interest under applicable Interest Law that is taken, reserved, contracted for,
charged or received under this Note, or under any of the other aforesaid
agreements or otherwise in connection with this transaction shall under no
circumstances exceed the maximum amount of interest allowed by the Interest Law
applicable to this transaction. If any usurious interest in such respect is
provided for, or shall be adjudicated to be so provided for, in this Note or in
any of the documents securing payment hereof or otherwise relating hereto or if
any acceleration of the maturity of this indebtedness or if any prepayment of
said indebtedness results in the payment of any interest in excess of the
maximum amount of interest allowed by the applicable Interest Law, then in such
event the provisions of this paragraph shall govern and control, neither the
Company nor its successors or assigns or any other party liable for the payment
of Liabilities shall be obligated to pay the amount of such interest to the
extent that it is in excess of the maximum amount of interest allowed by the
Interest Law applicable to this transaction,
2
Exhibit 1
any excess shall be deemed a mistake and canceled automatically and, if
theretofore paid, shall be credited on said indebtedness by the holder of this
Note (or if Liabilities shall have been paid in full, any excess deemed usurious
by a court of competent jurisdiction, refunded to the Company) and the effective
rate of interest shall be automatically subject to reduction to the Maximum
Legal Rate of Interest allowed under such Interest Law as now or hereafter
construed by courts of appropriate jurisdiction. All sums paid or agreed to be
paid the holder hereof for the use, forbearance or detention of the indebtedness
evidenced hereby shall, to the extent permitted by the Interest Law applicable
to this transaction, be amortized, prorated, allocated, and spread throughout
the full term of said indebtedness until paid in full so that the rate or amount
of interest on account of Liabilities does not exceed the applicable usury
ceiling. Notwithstanding any provision contained in this Note or any loan
document that permits the compounding of interest, including without limitation
any provision by which any of the accrued interest is added to the principal
amount of the indebtedness, the total amount of interest that the Company is
obligated to pay and the holder hereof is entitled to receive with respect to
this indebtedness shall not exceed the amount calculated on a simple (i.e.,
non-compounded) interest basis at the Maximum Legal Rate of Interest on
principal amounts actually advanced to or for the account of the Company,
including the initial advance under the Note and any advances made pursuant to
the Note or the Operative Documents.
This Note shall be construed and enforced in accordance with and the
rights of the parties shall be governed by the laws of the State of Illinois
excluding choice-of-law principles of the law of such State that would require
the application of the laws of a jurisdiction other than such State.
HEWITT PROPERTIES IV LLC
By:_________________________
(_____________), Manager
3
Exhibit 1.1
Exhibit 4.4(a)
FORM OF LEGAL OPINION OF
COUNSEL FOR THE COMPANY
The opinion of C. Lawrence Connolly III, Esq., counsel for the Company,
shall cover all matters specified in clauses 1 through 7 in Exhibit 4.4(b) and
also shall be to the effect that:
1. Each of the Company, the Tenant and the Guarantor has full
power and authority to conduct the activities in which it is now engaged and own
its property. The Guarantor and each domestic Subsidiary of the Tenant is an
entity duly organized and validly existing in good standing under the laws of
its jurisdiction of organization, and each has all requisite power and authority
to carry on its business as now conducted and own its property.
2. Each of the Company, the Tenant and its Subsidiaries and the
Guarantor is duly qualified or licensed and in good standing as a foreign
limited liability company or corporation authorized to do business in each
domestic jurisdiction where the nature of the business transacted by it or the
character of its properties owned or leased makes such qualification or
licensing necessary except where failure to so qualify would not, individually
or in the aggregate, have a material adverse affect on its business, properties,
or condition, financial or otherwise.
3. No authorization, approval or consent of any governmental or
regulatory body is necessary or required in connection with the lawful execution
and delivery by the Company of the Agreement or the Operative Agreements or the
lawful offering, issuance and sale of the Notes, and no designation, filing,
declaration, registration and/or qualification with any governmental authority
is required by the Company in connection with such offer, issuance and sale.
4. The issuance and sale of the Notes by the Company and the
execution, delivery and performance by the Company, the Tenant or the Guarantor,
as the case may be, of the Agreement or the Operative Agreements will not
conflict with, or result in any breach or violation of any of the provisions of,
or constitute a default under, or result in the creation of any Lien on the
property of the Company, the Guarantor, the Tenant or any Subsidiary pursuant
to, (i) the provisions of the Operating Agreement, Articles of Organization or
other organic or charter document of any of them or any loan agreement under
which any of them are bound, or other agreement or instrument to which any of
them is a party or by which any of them or their property is bound or (ii) any
law (including usury laws) or regulation, order, writ, injunction or decree of
any court or governmental authority applicable to any of them.
5. There are no actions, suits or proceedings pending or, to the
best of such counsel's knowledge after due inquiry, threatened against, or
affecting the Company, the Guarantor, the Tenant or the Tenant's Subsidiaries,
at law or in equity or before or by any Federal, state, municipal or other
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign, which are likely to result, either
individually or in the aggregate, in any material adverse change in the
business, properties, operations or condition, financial or otherwise, of the
Company and its Subsidiaries taken as a whole.
6. All of the issued and outstanding shares of capital stock of
each Subsidiary have been duly and validly issued, are fully paid and
nonassessable and, to the knowledge of such counsel, are owned by the Company
free and clear of any Lien.
7. The issuance of the Notes and the use of the proceeds of the
sale of the Notes do not violate or conflict with Regulation G, T or X of the
Board of Governors of the Federal Reserve System (12 C.F.R., Chapter II).
8. Neither the Company nor any Subsidiary is: (i) a "public
utility company" or a "holding company," or an "affiliate" or a "subsidiary
company" of a "holding company," or an "affiliate" of such a "subsidiary
company," as such terms are defined in the Public Utility Holding Company Act of
1935, as amended, or (ii) a "public utility" as defined in the Federal Power
Act, as amended, or (iii) an "investment company" or an "affiliated person"
thereof or an "affiliated person" of any such "affiliated person," as such terms
are defined in the Investment Company Act of 1940, as amended.
The opinion of C. Lawrence Connolly III, Esq. shall cover such other matters
relating to the sale of the Notes as the Purchasers may reasonably request. With
respect to matters of fact on which such opinion is based, such counsel shall be
entitled to rely on appropriate certificates of public officials and officers of
the Company and with respect to matters governed by the laws of any jurisdiction
other than the United States of America and the State of Illinois, such counsel
may rely upon the opinions of counsel deemed (and stated in their opinion to be
deemed) by them to be competent and reliable. The opinion of C. Lawrence
Connolly III, Esq. shall provide that such opinion may be relied upon by the
Purchasers and its counsel and (i) in connection with enforcement of obligations
of the Company under the Notes and the Note Agreement, (ii) in response to a
subpoena or other legal process, (iii) as otherwise required by applicable law
or regulation or (iv) in connection with the sale or transfer of any of the
Notes to a subsequent purchaser or transferee.
2
Exhibit 4.4(a)
Exhibit 4.4(b)
FORM OF LEGAL OPINION OF SPECIAL
COUNSEL FOR THE PURCHASERS
The opinion of Gardner, Carton & Douglas, special counsel for the
Purchasers, shall be to the effect that:
1. Each of the Tenant and the Company is a limited liability
company organized and existing in good standing under the laws of the State of
Illinois, with all requisite limited liability company power and authority
referred to in the Agreement, to enter into and perform the Agreement and the
Operative Agreements to which it is a party, and in the case of the Company, to
issue and sell the Notes.
2. The Guarantor is a limited liability company organized and
validly existing in good standing under the laws of Illinois, with all requisite
corporate power and authority referred to in the Guaranty, to enter into and
perform the Guaranty. The Guaranty has been duly authorized by proper action on
the part of the Guarantor, has been duly executed and delivered by an authorized
officer of the Guarantor and constitutes the legal, valid and binding agreement
of the Guarantor, enforceable in accordance with its terms, except to the extent
that enforcement thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws of general application relating to or
affecting the enforcement of the rights of creditors or by equitable principles,
regardless of whether enforcement is sought in a proceeding in equity or at law.
3. Each of the Agreement and each Operative Agreement to which the
Company or the Tenant are party have been duly authorized by proper action on
the part of the Company or the Tenant. as applicable, have been duly executed
and delivered by an authorized officer of the Company or the Tenant, as
applicable, and constitutes the legal, valid and binding agreement of the
Company or the Tenant, as applicable, enforceable in accordance with its terms,
except to the extent that enforcement thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws of general
application relating to or affecting the enforcement of the rights of creditors
or by equitable principles, regardless of whether enforcement is sought in a
proceeding in equity or at law.
4. The Notes have been duly authorized by proper corporate action
on the part of the Company, have been duly executed and delivered by an
authorized officer of the Company and constitute the legal, valid and binding
obligations of the Company, enforceable in accordance with their terms, except
to the extent that enforcement of the Notes may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws of general
application relating to or affecting the enforcement of the rights of creditors
or by equitable principles, regardless of whether enforcement is sought in a
proceeding in equity or at law.
5. Based upon the representations set forth in the Agreement, the
offering, sale and delivery of the Notes do not require the registration of the
Notes under the
Securities Act of 1933, as amended, nor the qualification of an indenture under
the Trust Indenture Act of 1939, as amended.
6. The issuance and sale of the Notes and compliance with the
terms and provisions of the Notes, the Agreement and the other Operative
Agreements to which it is party by the Company will not conflict with or result
in any breach of any of the provisions of the Operating Agreement.
7. Compliance by the Tenant with the terms and provisions of the
Operative Agreements to which it is a party will not conflict with or result in
any breach of the provisions of the Tenant Operating Agreement.
The opinion of Gardner, Carton & Douglas also shall state that the opinion of C.
Lawrence Connolly III, Esq., counsel for the Company, the Tenant and the
Guarantor delivered to you pursuant to the Agreement, is satisfactory in form
and scope to Gardner, Carton & Douglas, and, in their opinion, the Purchasers
and it are justified in relying thereon.
2
Exhibit 4.4(b)
EXECUTION COPY
HEWITT PROPERTIES IV LLC
FIRST AMENDMENT AND WAIVER TO
NOTE PURCHASE AGREEMENT
$85,000,000
7.13% Secured Credit Tenant Notes
due February 27, 2020
Dated as of May 31, 2002
To the Holders of the Secured Credit
Tenant Notes of Hewitt Properties IV LLC
Named in the Attached Schedule I
Ladies and Gentlemen:
Reference is made to the Note Purchase Agreement dated a: of July 31,
1998 among Hewitt Properties II, LLC, a limited liability company organized
under the laws of Illinois (the "Company"), Hewitt Associates LLC, a limited
liability company organized under the laws of Illinois (the "Tenant"), and each
of the Purchasers named in Schedule A thereto (the "Note Agreement"), pursuant
to which the Company issued $45,000,000 aggregate principal amount of 6.73%
Secured Credit Tenant Notes due November 30, 2019 (the "Notes"). You are
referred to herein individually as a "Holder" and collectively as the "Holders."
Capitalized terms used and not otherwise defined in this Amendment and Waiver
shall have the meanings ascribed to them in the Note Agreement.
All of the ownership interests of the Tenant are owned by ) Hewitt
Holdings LLC (the "Parent"). The Parent has formed Hewitt Associates, Inc., a
Delaware corporation ("Associates") and owns all of the issued and outstanding
common stock of Associates. The Parent has caused Associates to file a
registration statement for the underwritten public offering of common stock of
Associates (the "IPO"). In preparation for the IPO, the Parent proposes among
other things to (i) cause the Tenant to distribute (the "Distribution") cash in
the amount of $55,000,000 and accounts receivables in the face amount of
$152,500,000 to the Parent, which the Parent will use to fund a partial
distribution of undistributed accumulated earnings to the owners of the Parent
and (ii) transfer to Associates all of the ownership interests of the Tenant to
Associates so that the Tenant will become a wholly owned subsidiary of
Associates. The Distribution will cause the Tenant to be in violation of Section
10.3 of the Note Purchase Agreement.
The Company and the Tenant have requested the waiver of compliance with
Section 10.3 and the modification of certain financial covenants and other
provisions of the Note Agreement. The Holders are willing to grant an amendment
and waiver on the terms and conditions hereinafter set forth.
In consideration of the premises and for good and valuable
consideration, the receipt and sufficiency of which are acknowledged, the
Company, the Tenant rind the Holders agree as follows:
1. AMENDMENTS TO NOTE AGREEMENT
1.1 Amendment of Section 10.4. Section 10.4(c) of the Note
Agreement is amended to read in its entirety as follows:
"(c) Funded Indebtedness provided that the, Tenant will
not permit at any time the ratio of Consolidated Funded Indebtedness to
Consolidated Cash Flow for the most recently completed four fiscal
quarters to exceed 2.25 to 1.0."
1.2 Amendment of Section 10.5. The text of Section 10.5 of the
Note Agreement is deleted in its entirety and replaced by the word "Reserved."
1.3 Amendment of Section 10.7. Section 10.7(j) of the Note
Agreement is amended to read in its entirety as follows:
"(j) Liens which secure Indebtedness of Tenant or any
Restricted Subsidiary of Tenant and which are not permitted by (a)
through (i) above; provided that, after giving effect to the incurrence
of such indebtedness and the application of proceeds thereof, (A) the
requirements of Section 10.4(c) shall have been met and (B)
Indebtedness incurred by Tenant or any Restricted Subsidiary of Tenant
under this Section 10.7(j), when added to outstanding Indebtedness of
Restricted Subsidiaries of Tenant permitted by Section 10.6(b) will not
exceed 25% of Consolidated Net Capital determined as of the end of the
Tenant's most recently ended fiscal quarter."
1.4 Amendment of Section 11. Section 11 of the Note Agreement is
amended to include the following clause (1):
"(1) Hewitt Holdings LLC defaults in the performance of or
compliance with any term contained in the Parent Guaranty dated as of
May 31, 2002 in favor of the holders of the Notes or such Parent
Guaranty ceases to be in full force and effect (except as set forth
therein with respect to the release thereof), or is declared to be null
and void in whole or in part by a court or other governmental or
regulatory authority having jurisdiction or the validity or
enforceability thereof shall be contested by any of the Company, the
Tenant or Hewitt Holdings LLC or any of them renounces any of the same
or denies that it has any or further liability thereunder."
1.5 Amendment of Schedule B.
1.5.1 The definitions of "Current Indebtedness" and "Total
Capitalization" are deleted from Schedule B.
1.5.2 The following terms are added to Schedule B:
-2-
"Consolidated Cash Flow" means, for any period, the
sum of Consolidated Net Income for such period, plus, to the extent
deducted in determining such Consolidated Net Income, (i) Consolidated
Interest Expense, (ii) federal, state, local and foreign income, value
added and similar taxes, (iii) depreciation and amortization expense,
(iv) impairment charges relating to goodwill, (v) non-cash charges and
(vi) foreign currency translation adjustments.
"Consolidated Interest Expense" means, for any
period, the consolidated interest expense of the Tenant and its
Restricted Subsidiaries for such period determined in accordance with
GAAP (including imputed interest on Capital Lease obligations and all
debt discount and expense amortized in such period).
1.5.3 The definition of "Consolidated Net Capital" :.s
amended to read in its entirety as follows:
"Consolidated Net Capital" shall mean the
consolidated members' capital of the Tenant, as determined in
accordance with GAAP, less Restricted Investments in excess of 20% of
consolidated members' capital of the Tenant; provided, however, that
"Consolidated Net Capital" shall not include any capital stock of
Hewitt Associates, Inc. or Hewitt Holdings LLC.
2. WAIVER
The Holders waive compliance by the Tenant with the provisions of
Section 10.3 of the Note Agreement solely as a result of the Distribution until
the earlier to occur of (i) the occurrence of a Default or Event of Default
under the Note Agreement and (ii) delivery by the Tenant of financial statements
pursuant to Section 7.1(a) or (b) of the Note Agreement, accompanied by
certificate required by Section 7.2 of the Note Agreement, demonstrating that
the Tenant is then in compliance with Section 10.3, without regard to such
waiver and that there exists no Default or Event of Default. During the period
the foregoing waiver is in effect, the Tenant will not at any time permit
Consolidated Net Capital to be less than the sum of (a) $25,000,000 plus (b) the
cumulative sum of 10% (without deduction for any loss) of its Consolidated Net
Income for the three-month period ending September 30, 2002 and for each fiscal
year thereafter. This waiver is limited to its terms and shall not constitute a
waiver of any other term, condition, representation or covenant under the Note
Agreement or any of the other agreements, documents or instruments executed and
delivered in connection therewith.
3. REAFFIRMATION; REPRESENTATIONS AND WARRANTIES
3.1 Reaffirmation of Note Agreement. Each of the Company and the
Tenant reaffirms its agreement to comply with each of the covenants, agreements
and other provisions of the Note Agreement and the Notes applicable to it,
including the additions and amendments of such provisions effected by this
Amendment and Waiver.
3.2 Note Agreement. Each of the Company and the Tenant severally
represent and warrant that the representations and warranties contained in the
Note Agreement arc true and correct as of the date hereof, except (a) to the
extent that any of such representations and
-3-
warranties specifically relate to an earlier date, (b) for such changes, facts,
transactions and occurrences that are contemplated hereby or have arisen since
August 19, 1998 in the ordinary course of business, (c) for such other matters
as have been previously disclosed in writing by each of the Company and the
Tenant (including in its financial statements and notes thereto) to the Holders
and (d) for other changes that could not reasonably be expected to have a
Material Adverse Effect.
3.3 No Default or Event of Default. Each of the Company and the
Tenant severally represent and warrant that no Default or Event of Default has
occurred and is continuing or will occur as a result of the execution of this
Amendment and Waiver.
3.4 Authorization. The execution, delivery and performance: by
each of the Company and the Tenant of this Amendment and Waiver have been duly
authorized by all necessary action on the part of each of the Company and the
Tenant as required by .heir respective Operating Agreement and Articles of
Organization and, except as provided herein, do not require any registration
with, consent or approval of, notice to or action by, my Person (including any
Governmental Authority) in order to be effective and enforceable. The Note
Agreement and this Amendment and Waiver each constitute the legal, valid and
binding obligations of each of the Company and the Tenant, enforceable in
accordance with their respective terms, except as such enforceability may be
limited by (i) applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally and (ii) general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
4. CONSENT TO AMENDMENT OF LEASE
The Holders hereby consent to the amendment of the Lease to contemplate
amendments to the Note Agreement, which Lease amendment shall be on terms
reasonably satisfactory to the Holders.
5. EFFECTIVE DATE
This Amendment and Waiver shall become effective as of the date set
forth above upon the satisfaction of the following conditions:
5.1 Consent of Holders to Amendment and Waiver. Execution by the
holders of at least 51% of the aggregate principal amount of the Notes
outstanding and receipt by the Holders of a counterpart of this Amendment and
Waiver duly executed by the Company and the Tenant.
5.2 Parent Guaranty. Parent shall have executed and delivered a
Parent Guaranty substantially in the form of the attached Exhibit A in favor of
the Holders.
5.3 Amendment Fee. Each Holder, whether or not such Holder
executes this Amendment and Waiver, shall have received payment of an amendment
fee equal to 0.20% of the principal amount of the outstanding Notes held by such
Holder.
5.4 Amendment to Lease. The Company and the Tenant shall have
executed an amendment to the Lease.
-4-
5.5 Expenses. The Company or the Tenant shall have paid all fees
and expenses of special counsel to the Holders in connection with this Amendment
and Waiver.
6. MISCELLANEOUS
6.1 Ratification. Except as expressly amended, modified, deleted
or added to hereby, all of the terms and conditions of the Note Agreement, the
Notes and al l other documents relating to the Note Agreement remain in full
force and effect, and the parties hereto expressly reaffirm and ratify their
respective obligations thereunder.
6.2 Reference to and Effect on the Note Agreement. Upon the final
effectiveness of this Amendment and Waiver, each reference in the Note Agreement
and in other documents describing or referencing the Note Agreement to the
"Agreement," "Note Agreement," "hereunder," "hereof," "herein," or words of like
import referring to the Note Agreement, shall mean and be a reference to the
Note Agreement, as amended hereby.
6.3 Binding Effect. This Amendment and Waiver shall be binding
upon and inure to the benefit of the respective successors and assigns of the
parties hereto.
6.4 Governing Law. This Amendment and Waiver shall be governed by
and construed in accordance with Illinois law.
6.5 Counterparts. This Amendment and Waiver may be executed in any
number of counterparts, each executed counterpart constituting an original, but
altogether only one instrument.
-5-
IN WITNESS WHEREOF, the Company, the Tenant and the Holders have caused
this First Amendment and Waiver to the Note Purchase Agreement to be executed
and delivered by their respective officer or officers thereunto duly authorized.
HEWITT PROPERTIES IV LLC
By: /s/ C. L. Connolly III
-------------------------------------
Name: C. Lawrence Connolly, III
Title: Authorized Representative
HEWITT ASSOCIATES LLC
By: /s/ C. L. Connolly III
-------------------------------------
Name: C. Lawrence Connolly, III
Title: Authorized Representative
S-1
Hewitt Properties IV LLC
Notes Purchase Agreement dated as of April 22, 1999
The foregoing is hereby agreed to
as of the date thereof.
LINCOLN LIFE & ANNUITY COMPANY OF
NEW YORK
By: Delaware Lincoln Investment Advisers, a
Series of Delaware Management Business
Trust, Attorney-in Fact
By: /s/ Carl E. Mabry
---------------------------------------------
Name: Carl E. Mabry
-------------------------------------------
Title: Vice President
------------------------------------------
THE LINCOLN NATIONAL LIFE INSURANCE
COMPANY
By: Delaware Lincoln Investment Advisers, a
Series of Delaware Management Business
Trust, Attorney-in Fact
By: /s/ Carl E. Mabry
---------------------------------------------
Name: Carl E. Mabry
-------------------------------------------
Title: Vice President
------------------------------------------
S-2
Hewitt Properties IV LLC
Notes Purchase Agreement dated as of April 22, 1999
PACIFIC LIFE INSURANCE COMPANY
By: /s/ Bernard J. Dougherty
---------------------------------------------
Name: Bernard J. Dougherty
-------------------------------------------
Title: Associate Vice President
------------------------------------------
By: /s/ Peter S. Fiek
---------------------------------------------
Name: Peter S. Fiek
-------------------------------------------
Title: Assistant Secretary
------------------------------------------
S-3
Hewitt Properties IV LLC
Notes Purchase Agreement dated as of April 22, 1999
THE CANADA LIFE ASSURANCE
COMPANY, as beneficial owner
By: /s/ C. Paul English
---------------------------------------------
Name: C. Paul English
-------------------------------------------
Title: Assistant Treasurer
------------------------------------------
CANADA LIFE INSURANCE COMPANY OF
AMERICA, as beneficial owner
By: /s/ C. Paul English
---------------------------------------------
Name: C. Paul English
-------------------------------------------
Title: Assistant Treasurer
------------------------------------------
CANADA LIFE INSURANCE COMPANY OF
NEW YORK, as beneficial owner
By: /s/ C. Paul English
---------------------------------------------
Name: C. Paul English
-------------------------------------------
Title: Assistant Treasurer
------------------------------------------
S-4
Hewitt Properties IV LLC
Notes Purchase Agreement dated as of April 22, 1999
UNITY MUTUAL LIFE INSURANCE
COMPANY
By: Advantus Capital Management, Inc.
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
THE CATHOLIC AID ASSOCIATION
By: Advantus Capital Management, Inc.
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
MTL INSURANCE COMPANY
By: Advantus Capital Management, Inc.
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
FARM BUREAU LIFE INSURANCE COMPANY
OF MICHIGAN
By: Advantus Capital Management, Inc.
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
S-5
Hewitt Properties IV LLC
Notes Purchase Agreement dated as of April 22, 1999
GUARANTEE RESERVE LIFE INSURANCE
COMPANY
By: Advantus Capital Management, Inc.
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
GREAT WESTERN INSURANCE COMPANY
By: Advantus Capital Management, Inc.
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
S-6
Hewitt Properties IV LLC
Notes Purchase Agreement dated as of April 22, 1999
BY: PPM AMERICA, INC. as attorney in fact
on behalf of JACKSON NATIONAL LIFE
INSURANCE COMPANY
By: /s/ Chris Raub
---------------------------------------------
Name: Chris Raub
-------------------------------------------
Title: Senior Managing Director
------------------------------------------
S-7
Hewitt Properties IV LLC
Notes Purchase Agreement dated as of April 22, 1999
AMERICAN UNITED LIFE INSURANCE
COMPANY, as Agent for Pioneer Mutual Life
Insurance Company
By: /s/ Christopher D. Pahlke
----------------------------------------------
Name: Christopher D. Pahlke
-------------------------------------------
Title: Vice President
------------------------------------------
S-8
Hewitt Properties IV LLC
Notes Purchase Agreement dated as of April 22, 1999
EXHIBIT A
PARENT GUARANTY
THIS GUARANTY (this "Guaranty") dated as of May 31, 2002 is made by HEWITT
HOLDINGS LLC, a limited liability company organized under the laws of Illinois
(the "Guarantor"), in favor of the holders from time to time of the Notes
hereinafter referred to, including each holder named in the Note Purchase
Agreement, as amended, hereinafter referred to, and their respective successors
and assigns (collectively, the "Holders" and each individually, a "Holder").
W I T N E S S E T H:
WHEREAS, HEWITT PROPERTIES IV LLC, a limited liability company organized
under the laws of Illinois (the "Company"), HEWITT ASSOCIATES LLC, a limited
liability company organized under the laws of Illinois (the "Tenant"), and the
initial Holders entered into a Note Purchase Agreement dated as of April 22,
1999 (the Note Purchase Agreement as amended by the First Amendment and Waiver
(the "First Amendment and Waiver") dated as of May 31, 2002, and as it may
hereafter be amended, supplemented, restated or otherwise modified from time to
time in accordance with its terms and in effect, the "Note Purchase Agreement");
WHEREAS, pursuant to the Note Purchase Agreement the Company issued and
sold $85,000,000 aggregate principal amount of Notes (as defined in the Note
Purchase Agreement), which are now held by the Holders;
WHEREAS, the Company is a wholly owned Subsidiary of the Guarantor and the
Guarantor has agreed to guaranty the obligations related to the Notes in
connection with the execution by the Holders of the First Amendment and Waiver,
from which the Guarantor will derive substantial benefits;
WHEREAS, it is a condition precedent to the effectiveness of the First
Amendment and Waiver that the Guarantor shall have executed and delivered this
Guaranty to the Holders; and
WHEREAS, the Guarantor desires to execute and deliver this Guaranty to
satisfy the conditions described in the preceding paragraph;
NOW, THEREFORE, in consideration of the premises and other benefits to the
Guarantor, and of the execution of the First Amendment and Waiver by the
Holders, and for other good and valuable consideration, the receipt and
sufficiency of Which are acknowledged, the Guarantor makes this Guaranty as
follows:
Exhibit A
SECTION 1. Definitions. Any capitalized terms not otherwise herein defined
shall have the meanings ascribed to them in the Note Purchase Agreement or in
the First Amendment and Waiver.
SECTION 2. Guaranty. The Guarantor unconditionally and irrevocably
guarantees to the Holders the due, prompt and complete payment by the Company of
the principal of, Make-Whole Amount, if any, and interest on, and each other
amount due under, the Notes or the Note Purchase Agreement, when and as the same
shall become due and payable (whether at stated maturity or by required or
optional prepayment or by declaration or otherwise) in accordance with the terms
of the Notes and the Note Purchase Agreement (the Notes and the Note Purchase
Agreement being sometimes hereinafter collectively referred to as the "Note
Documents" and the amounts payable by the Company under the Note Documents, and
all other monetary obligations of the Company thereunder, being sometimes
collectively hereinafter referred to as the "Obligations"). This Guaranty is a
guaranty of payment and not just of collectibility and is in no way conditioned
or contingent upon any attempt to collect from the Company or upon any other
event, contingency or circumstance whatsoever. If for any reason whatsoever the
Company shall fail or be unable duly, punctually and fully to pay such amounts
as and when the same shall become due and payable, the Guarantor, without
demand, presentment, protest or notice of any kind, will forthwith pay or cause
to be paid such amounts to the Holders under the terms of such Note Documents,
in lawful money of the United States, at the place specified in the Note
Purchase Agreement, or perform or comply with the same or cause the same to be
performed or complied with, together with interest (to the extent provided for
under such Note Documents) on any amount due and owing from the Company. The
Guarantor, promptly after demand, will pay to the Holders the reasonable costs
and expenses of collecting such amounts or otherwise enforcing this Guaranty,
including, without limitation, the reasonable fees and expenses of counsel.
SECTION 3. Guarantor's Obligations Unconditional. The obligations of the
Guarantor under this Guaranty shall be primary, absolute and unconditional
obligations of the Guarantor, shall not be subject to any counterclaim, set-off,
deduction, diminution, abatement, recoupment, suspension, deferment, reduction
or defense based upon any claim the Guarantor or any other person may have
against the Company or any other person, and to the full extent permitted by
applicable law shall remain in full force and effect without regard to, and
shall not be released, discharged or in any way affected by, any circumstance or
condition whatsoever (whether or not the Guarantor or the Company shall have any
knowledge or notice thereof), including:
(a) any termination, amendment or modification of or deletion from
or addition or supplement to or other change in any of the Note Documents or any
other instrument or agreement applicable to any of the parties to any of the
Note Documents;
2
Exhibit A
(b) any furnishing or acceptance of any security, or any release of
any security, for the Obligations, or the failure of any security or the failure
of any person to perfect any interest in any collateral;
(c) any failure, omission or delay on the part of the Company or the
Tenant to conform or comply with any term of any of the Note Documents or any
other instrument or agreement referred to in paragraph (a) above, including,
without limitation, failure to give notice to the Guarantor of the occurrence of
a "Default" or an "Event of Default" under any Note Document;
(d) any waiver of the payment, performance or observance of any of
the obligations, conditions, covenants or agreements contained in any Note
Document, or any other waiver, consent, extension, indulgence, compromise,
settlement, release or other action or inaction under or in respect of any of
the Note Documents or any other instrument or agreement referred to in paragraph
(a) above or any obligation or liability of the Company or the Tenant, or any
exercise or non-exercise of any right, remedy, power or privilege under or in
respect of any such instrument or agreement or any such obligation or liability;
(e) any failure, omission or delay on the part of any of the Holders
to enforce, assert or exercise any right, power or remedy conferred on such
Holder in this Guaranty, or any such failure, omission or delay on the part of
such Holder in connection with any Note Document, or any other action on the
part of such Holder;
(f) any voluntary or involuntary bankruptcy, insolvency,
reorganization, arrangement, readjustment, assignment for the benefit of
creditors, composition, receivership, conservatorship, custodianship,
liquidation, marshaling of assets and liabilities or similar proceedings with
respect to the Company, the Tenant, the Guarantor or to any other person or any
of their respective properties or creditors, or any action taken by any trustee
or receiver or by any court in any such proceeding;
(g) any discharge, termination, cancellation, frustration,
irregularity, invalidity or unenforceability, in whole or in part, of any of the
Note Documents or any other agreement or instrument referred to in paragraph (a)
above or any term hereof;
(h) any merger or consolidation of the Company, the Tenant or the
Guarantor into or with any other corporation, or any sale, lease or transfer of
any of the assets of the Company or the Guarantor to any other person;
(i) any change in the ownership of any shares of capital stock of
the Company or the Tenant or any change in the corporate relationships between
the Company, the Tenant and the Guarantor, or any termination of any such
relationship;
3
Exhibit A
(j) any release or discharge, by operation of law, of the Guarantor
from the performance or observance of any obligation, covenant or agreement
contained in this Guaranty; or
(k) any other occurrence, circumstance, happening or event
whatsoever, whether similar or dissimilar to the foregoing, whether foreseen or
unforeseen, and any other circumstance which might otherwise constitute a legal
or equitable defense or discharge of the liabilities of a guarantor or surety or
which might otherwise limit recourse against the Guarantor.
SECTION 4. Full Recourse Obligations. The obligations of the Guarantor set
forth herein constitute the full recourse obligations of the Guarantor
enforceable against it to the full extent of all its assets and properties.
SECTION 5. Waiver. The Guarantor unconditionally waives, to the extent
permitted by applicable law, (a) notice of any of the matters referred to in
Section 3, (b) notice to the Guarantor of the incurrence of any of the
Obligations, notice to the Guarantor or the Company of any breach or default by
the Company with respect to any of the Obligations or any other notice that may
be required, by statute, rule of law or otherwise, to preserve any rights of the
Holders against the Guarantor, (c) presentment to or demand of payment from the
Company or the Guarantor with respect to any amount due under any Note Document
or protest for nonpayment or dishonor, (d) any right to the enforcement,
assertion or exercise by any of the Holders of any right, power, privilege or
remedy conferred in the Note Purchase Agreement or any other Note Document or
otherwise, (e) any requirement of diligence on the part of any of the Holders,
(f) any requirement to exhaust any remedies or to mitigate the damages resulting
from any default under any Note Document, (g) any notice of any sale, transfer
or other disposition by any of the Holders of any right, title to or interest in
the Note Purchase Agreement or in any other Note Document and (h) any other
circumstance whatsoever which might otherwise constitute a legal or equitable
discharge, release or defense of a guarantor or surety or which might otherwise
limit recourse against the Guarantor.
SECTION 6. Subrogation, Contribution, Reimbursement or Indemnity. Until one
year and one day after all Obligations have been indefeasibly paid in full, the
Guarantor agrees not to take any action pursuant to any rights which may have
arisen in connection with this Guaranty to be subrogated to any of the rights
(whether contractual, under the United States Bankruptcy Code, as amended,
including section 509 thereof, under common law or otherwise) of any of the
Holders against the Company or against any collateral security or guaranty or
right of offset held by the Holders for the payment of the Obligations. Until
one year and one day after all Obligations have been indefeasibly paid in full,
the Guarantor agrees not to take any action pursuant to any contractual, common
law, statutory or other rights of reimbursement, contribution, exoneration or
indemnity (or any similar right) from or against the Company which may have
arisen in connection with this Guaranty. So long as the Obligations remain, if
any amount shall be paid by or on
4
Exhibit A
behalf of the Company to the Guarantor on account of any of the rights waived in
this paragraph, such amount shall be held by the Guarantor in trust, segregated
from other funds of the Guarantor, and shall, forthwith upon receipt by the
Guarantor, be turned over to the Holders (duly endorsed by the Guarantor to the
Holders, if required), to be applied against the Obligations, whether matured or
unmatured, in such order as the Holders may determine. The provisions of this
paragraph shall survive the term of this Guaranty and the payment in full of the
Obligations.
SECTION 7. Effect of Bankrupts Proceedings, etc. This Guaranty shall
continue to be effective or be automatically reinstated, as the case may be, if,
at any time prior to the termination of this Guaranty pursuant to Section 9(ii),
payment, in whole or in part, of any of the sums due to any of the Holders
pursuant to the terms of the Note Purchase Agreement or any other Note Document
is rescinded or must otherwise be restored or returned by the Holder upon the
insolvency, bankruptcy, dissolution, liquidation or reorganization of the
Company or any other person, or upon or as a result of the appointment of a
custodian, receiver, trustee or other officer with similar powers with respect
to the Company or other person or any substantial part of its property, or
otherwise, all as though such payment had not been made. If an event permitting
the acceleration of the maturity of the principal amount of the Notes shall at
any time have occurred and be continuing, and such acceleration shall at such
time be prevented by reason of the pendency against the Company or any other
person of a case or proceeding under a bankruptcy or insolvency law, the
Guarantor agrees that, for purposes of this Guaranty and its obligations
hereunder, the maturity of the principal amount of the Notes and all other
Obligations shall be deemed to have been accelerated with the same effect as if
any Holder had accelerated the same in accordance with the terms of the Note
Purchase Agreement or other applicable Note Document, and the Guarantor shall
forthwith pay such principal amount, Make-Whole Amount, if any, and interest
thereon and any other amounts guaranteed hereunder without further notice or
demand.
SECTION 8. Restrictions on Transfer of Certain Assets. So long as this
Guaranty remains in effect:
(a) The Guarantor will own at least 85% of the capital stock of
Hewitt Associates Inc., a Delaware corporation ("Associates"), and will own or
cause Associates to own 100% of the ownership interests in the Tenant.
(b) The Guarantor will not pledge or encumber any capital stock of
Associates and will not, and will not permit Associates to, pledge or encumber
any ownership interests in the Tenant.
(c) Except for liens or encumbrances permitted by the Security
Documents, the Guarantor will not, and will not permit any of its subsidiaries
to, encumber, sell, lease, transfer or otherwise dispose of any of the real
property owned by
5
Exhibit A
it, except that it may dispose of the office buildings located in Newport Beach,
California, and Rowayton, Connecticut.
(d) The Guarantor will own 100% of the ownership interests in each
of its subsidiaries that owns any real property.
(e) The Guarantor will not, and will not permit Associates to,
distribute to members of the Guarantor more than 50% of the proceeds of the
Distribution.
SECTION 9. Term of Agreement. This Guaranty and all guaranties, covenants
and agreements of the Guarantor contained herein shall continue in full force
and effect and shall not be discharged until the occurrence of one of the
following events: (i) all of the Obligations shall be paid and performed in full
and all of the agreements of the Guarantor hereunder shall be duly paid and
performed in full or (ii) the Tenant demonstrates compliance with Section 10.3
of the Note Purchase Agreement in the manner set forth in Section 2 of the First
Amendment and Waiver.
SECTION 10. Representations and Warranties. The Guarantor represents and
warrants to each Holder that:
(a) the Guarantor is duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization and has the
requisite power and authority to own and operate its property, to lease the
property it operates as lessee and to conduct the business in which it is
currently engaged;
(b) the Guarantor owns all of the ownership interests ire the Tenant
and all of the capital stock of Associates;
(c) the Guarantor has the requisite power and authority and the
legal right to execute and deliver, and to perform its obligations under, this
Guaranty, and has taken all necessary action to authorize its execution,
delivery and performance of this Guaranty;
(d) this Guaranty constitutes a legal, valid and binding obligation
of the Guarantor enforceable in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors' rights
generally and by general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at law);
(e) the execution, delivery and performance of this Guaranty will
not (i) contravene, result in any breach of, or constitute a default under, or
result in the creation of any Lien in respect of any property of the Guarantor
under any indenture, mortgage, deed of trust, loan, credit agreement, corporate
charter or by-laws, or any other agreement evidencing Debt, (ii) contravene,
result in any breach of, or constitute a default under, or
6
Exhibit A
result in the creation of any Lien in respect of any property of the Guarantor
under, any other agreement or instrument to which the Guarantor is bound or by
which the Guarantor or any of its properties may be bound or affected, except as
could not reasonably be expected to have a Material Adverse Effect, (iii)
conflict with or result in a breach of any of the terms, conditions or
provisions of any order, judgment, decree, or ruling of any court, arbitrator or
Governmental Authority applicable to the Guarantor, except as could not
reasonably be expected to have a Material Adverse Effect, or (iv) violate any
provision of any statute or other rule or regulation of any Governmental
Authority applicable to the Guarantor, except as could not reasonably be
expected to have a Material Adverse Effect.
SECTION 11. Notices. All notices under the terms and provisions hereof
shall be in writing, and shall be delivered or sent by telex or telecopy or
mailed by first-class mail, postage prepaid, addressed to the Guarantor at 100
Half Day Road, Lincolnshire, IL 60069-3342, Attention: General Counsel, or to
any Holder at the address set forth in the Note Purchase Agreement, or in each
case at such other address as the Guarantor or any Holder shall from time to
time designate in writing to the other parties. Any notice so addressed shall be
deemed to be given when actually received.
SECTION 12. Survival. All warranties, representations and covenants made by
the Guarantor herein or in any certificate or other instrument delivered by it
or on its behalf hereunder shall be considered to have been relied upon by the
Holders and shall survive the execution and delivery of this Guaranty,
regardless of any investigation made by any of the Holders. All statements in
any such certificate or other instrument shall constitute warranties and
representations by such Guarantor hereunder.
SECTION 13. Submission to Jurisdiction. The Guarantor irrevocably submits
to the jurisdiction of the courts of the State of Illinois and of the courts of
the United States of America having jurisdiction in the State of Illinois for
the purpose of any legal action or proceeding in any such court with respect to,
or arising out of, this Guaranty, the Note Purchase Agreement or the Notes. The
Guarantor consents to process being served in any suit, action or proceeding by
mailing a copy thereof by registered or certified mail, postage prepaid, return
receipt requested, to its address specified in or designated pursuant to the
Note Purchase Agreement. The Guarantor agrees that such service upon receipt (i)
shall be deemed in every respect effective service of process upon it in any
such suit, action or proceeding and (ii) shall, to the fullest extent permitted
by law, be taken and held to be valid personal service upon and personal
delivery to it.
SECTION 14. Miscellaneous. Any provision of this Guaranty 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 not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the Guarantor hereby waives any provision of law that renders
any
7
Exhibit A
provisions hereof prohibited or unenforceable in any respect. The terms of this
Guaranty shall be binding upon, and inure to the benefit of, the Guarantor and
the Holders and their respective successors and assigns. No term or provision of
this Guaranty may be changed; waived, discharged or terminated orally, but only
by an instrument in writing signed by the Guarantor and the Holders. The section
and paragraph headings in this Guaranty and the table of contents are for
convenience of reference only and shall not modify, define, expand or limit any
of the terms or provisions hereof, and all references herein to numbered
sections, unless otherwise indicated, are to sections in this Guaranty. This
Guaranty shall in all respects be governed by, and construed in accordance with,
the laws of the State of Illinois, including all matters of construction,
validity and performance.
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be duly
executed as of the day and year first above written.
HEWITT HOLDINGS LLC,
an Illinois limited liability company
By:________________________________
Name: _____________________________
Title: ______________________________
8
Exhibit A
SCHEDULE I
Outstanding Principal
Name of Holder Amount as of May 31, 2002
- -------------- -------------------------
Lincoln Life & Annuity Company of New York $ 1,889,678.51
The Lincoln National Life Insurance Company 12,282,910.41
Pacific Life Insurance Company 33,069,374.64
The Canada Life Assurance Company 2,362,098.15
Canada Life Insurance Company of America 1,889,678.52
Canada Life Insurance Company of New York 472,419.63
Unity Mutual Life Insurance Company 944,839.72
The Catholic Aid Association 944,839.72
MTL Insurance Company 1,889,679.65
Farm Bureau Life Insurance Company of Michigan 3,779,357.00
Guarantee Reserve Life Insurance Company 472,420.56
Great Western Insurance Company 472,420.56
Jackson National Life Insurance Company 18,896,785.19
Pioneer Mutual Life Insurance Company 944,839.19
Schedule I