EXHIBIT 4.3
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SAFETY-KLEEN CORP.
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Note Purchase Agreement
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DATED AS OF JANUARY 15, 1995
$50,000,000 8.05% SENIOR NOTES DUE JANUARY 30, 1998
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TABLE OF CONTENTS
PAGE
1. PURCHASE AND SALE OF NOTES........................................... 1
1.1 Issue of Notes.................................................. 1
1.2 The Closing..................................................... 1
1.3 Purchase for Investment; ERISA.................................. 2
1.4 Expenses........................................................ 3
2. WARRANTIES AND REPRESENTATIONS....................................... 3
2.1 Nature of Business.............................................. 3
2.2 Financial Statements; Debt; Material Adverse Change............. 3
2.3 Subsidiaries and Affiliates..................................... 4
2.4 Title to Properties............................................. 4
2.5 Taxes........................................................... 5
2.6 Pending Litigation.............................................. 5
2.7 Full Disclosure................................................. 6
2.8 Corporate Organization and Authority............................ 6
2.9 Charter Instruments, Other Agreements........................... 6
2.10 Restrictions on Company and Subsidiaries........................ 7
2.11 Compliance with Law............................................. 7
2.12 Pension Plans................................................... 7
2.13 Environmental Compliance........................................ 8
2.14 Sale of Notes is Legal and Authorized; Obligations are
Enforceable..................................................... 10
2.15 Governmental Consent to Sale of Notes........................... 10
2.16 No Defaults under Notes......................................... 11
2.17 Private Offering of Notes....................................... 11
2.18 Use of Proceeds of Notes........................................ 11
3. CLOSING CONDITIONS................................................... 12
3.1 Opinions of Counsel............................................. 12
3.2 Warranties and Representations True............................. 12
3.3 Officers' Certificates.......................................... 12
3.4 Legality........................................................ 13
3.5 Private Placement Number........................................ 13
3.6 Expenses........................................................ 13
3.7 Other Purchasers................................................ 13
3.8 Proceedings Satisfactory........................................ 13
4. PRINCIPAL PAYMENTS................................................... 13
4.1 Optional Prepayments............................................ 13
4.2 Prepayments Among Noteholders................................... 14
4.3 Notation of Notes on Prepayment................................. 14
4.4 Offer to Prepay upon Change in Control.......................... 15
4.5 No Other Prepayments; Acquisition of Notes...................... 16
5. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES........................ 16
5.1 Registration of Notes........................................... 16
5.2 Exchange of Notes............................................... 16
5.3 Replacement of Notes............................................ 17
5.4 Issuance Taxes.................................................. 18
ii Note Purchase Agreement
TABLE OF CONTENTS (Cont.)
PAGE
6. COVENANTS.............................................................. 18
6.1 Payment of Taxes and Claims....................................... 18
6.2 Maintenance of Properties; Corporate Existence; etc............... 18
6.3 Payment of Notes and Maintenance of Office........................ 19
6.4 Merger............................................................ 19
6.5 Maintenance of Shareholders' Equity............................... 19
6.6 Maintenance of Debt to Capital Ratio.............................. 20
6.7 Maintenance of Interest Coverage Ratio............................ 20
6.8 Leases............................................................ 20
6.9 Liens............................................................. 20
6.10 Limitation on Sale and Lease-Back Transactions.................... 22
6.11 Investments....................................................... 23
6.12 Sale of Assets.................................................... 24
6.13 Stock of Subsidiaries............................................. 24
6.14 Designation of Subsidiaries....................................... 24
6.15 Line of Business.................................................. 25
6.16 Transactions with Affiliates...................................... 25
6.17 Environmental Compliance.......................................... 26
6.18 Restrictions on Dividends......................................... 26
6.19 Pension Plans..................................................... 27
6.20 Private Offering.................................................. 28
7. INFORMATION AS TO COMPANY.............................................. 28
7.1 Financial and Business Information................................ 28
7.2 Officer's Certificates............................................ 31
7.3 Accountants' Certificates......................................... 31
7.4 Inspection........................................................ 31
8. EVENTS OF DEFAULT...................................................... 32
8.1 Nature of Events.................................................. 32
8.2 Default Remedies.................................................. 33
8.3 Annulment of Acceleration of Notes................................ 35
9. INTERPRETATION OF THIS AGREEMENT....................................... 35
9.1 Terms Defined..................................................... 35
9.2 Accounting Principles............................................. 49
9.3 Directly or Indirectly............................................ 49
9.4 Section Headings and Table of Contents and Construction........... 50
9.5 Governing Law..................................................... 50
10. MISCELLANEOUS.......................................................... 50
10.1 Communications.................................................... 50
10.2 Reproduction of Documents......................................... 51
10.3 Survival.......................................................... 51
10.4 Successors and Assigns............................................ 51
10.5 Amendment and Waiver.............................................. 52
10.6 Expenses.......................................................... 53
10.7 Payments on Notes................................................. 53
iii Note Purchase Agreement
TABLE OF CONTENTS (Cont.)
PAGE
10.8 Waiver of Jury Trial, Consent to Jurisdiction............... 54
10.9 Entire Agreement............................................ 55
10.10 Duplicate Originals, Execution in Counterpart............... 55
Annex 1 -- Information as to Purchasers
Annex 2 -- Payment Instructions at Closing; Address of Company
for Notices
Annex 3 -- Information as to Company
Exhibit A -- Form of 8.05% Senior Note Due January 30, 1998
Exhibit B1 -- Form of Company Counsel's Closing Opinion
Exhibit B2 -- Form of Special Counsel's Closing Opinion
Exhibit C -- Form of Officers' Certificate
Exhibit D -- Form of Secretary's Certificate
iv Note Purchase Agreement
SAFETY-KLEEN CORP.
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NOTE PURCHASE AGREEMENT
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$50,000,000 8.05% SENIOR NOTES DUE JANUARY 30, 1998
Dated as of January 15, 1995
[INSERT NAME AND ADDRESS
OF EACH PURCHASER]
Ladies and Gentlemen:
SAFETY-KLEEN CORP. (together with any successors and assigns who become
such in accordance herewith, the "COMPANY"), a Wisconsin corporation, hereby
agrees with you as follows:
1. PURCHASE AND SALE OF NOTES
1.1 ISSUE OF NOTES.
The Company will authorize the issue of Fifty Million Dollars ($50,000,000)
in aggregate principal amount of its eight and five one-hundredths percent
(8.05%) Senior Notes due January 30, 1998 (all such notes, whether initially
issued, or issued in exchange or substitution for, any such note, in each case
in accordance with the Note Purchase Agreements, collectively, the "NOTES").
The Notes shall be in the form of Exhibit A, and shall have the terms as herein
and therein provided.
1.2 THE CLOSING.
(A) PURCHASE AND SALE OF NOTES. The Company hereby agrees to sell to
you and you hereby agree to purchase from the Company, in accordance with
the provisions hereof, the aggregate principal amount of Notes set forth
below your name on Annex 1 at one hundred percent (100%) of the principal
amount thereof.
(B) THE CLOSING. The closing (the "CLOSING") of the Company's sale of
Notes will be held on February 3, 1995 (the "CLOSING DATE") at 9:00 a.m.,
local time, at the office of [Hebb & Gitlin, your special counsel]. At the
Closing, the Company will deliver to you one or more Notes (as set forth
below your name on Annex 1), in the denominations indicated on Annex 1, in
the aggregate principal amount of your purchase, dated the Closing Date and
payable to you or payable as indicated on Annex 1, against payment by
federal funds wire transfer in immediately available funds of the purchase
price thereof, as directed by the Company on Annex 2.
(C) OTHER PURCHASERS. Contemporaneously with the execution and
delivery hereof, the Company is entering into separate note purchase
agreements identical
1 Note Purchase Agreement
1. PURCHASE AND SALE OF NOTES
(except for the name and signature of the purchaser) hereto (such separate
note purchase agreements together with this Agreement collectively, as
amended from time to time, the "NOTE PURCHASE AGREEMENTS") with each other
purchaser (each an "OTHER PURCHASER") listed on Annex 1, providing for the
sale to each Other Purchaser of Notes in the aggregate principal amount set
forth below its name on Annex 1. The sales of the Notes to you and to each
Other Purchaser are to be separate sales.
1.3 PURCHASE FOR INVESTMENT; ERISA.
(A) PURCHASE FOR INVESTMENT. You represent that
(i) you are purchasing the Notes for investment for your own
account, for a separate account (as such term is used in Rule 144A,
17 C.F.R. (S)230.144A), for the account of another for which you have
sole investment discretion, or for a trust of which you are the
trustee, and
(ii) you are not purchasing the Notes with a view to or for sale
in connection with any distribution thereof within the meaning of the
Securities Act;
provided, that you have the right to dispose of the Notes, or any part
thereof, if you deem it advisable to do so, either pursuant to a
registration of the Notes under the Securities Act or pursuant to an
applicable exemption from the requirement of such registration (it being
understood that the Company has no obligation hereunder to effect any
registration of the Notes under the Securities Act). It is understood
that, in making the representations set out in Section 2.14 and Section
2.15, the Company is relying, to the extent applicable, upon your
representation as aforesaid.
(B) ERISA. You represent, with respect to the funds with which you
are acquiring the Notes, that all of such funds are from or are
attributable to one or more of:
(I) GENERAL ACCOUNT -- your general account assets or assets of
one or more segments of such general account, as the case may be;
(II) SEPARATE ACCOUNT -- a "separate account" (as defined in
section 3 of ERISA),
(A) 10% POOLED SEPARATE ACCOUNT -- in respect of which all
requirements for an exemption under Department of Labor
Prohibited Transaction Class Exemption 90-1 are met with respect
to the use of such funds to purchase the Notes,
(B) IDENTIFIED PLAN ASSETS -- that is comprised of employee
benefit plans identified by you in writing and with respect to
which the Company hereby warrants and represents that, as of the
Closing Date, neither the Company nor any ERISA Affiliate is a
"party in interest" (as defined in section 3 of ERISA) or a
"disqualified person" (as defined in section 4975 of the IRC)
with respect to any plan so identified, or
(C) GUARANTEED SEPARATE ACCOUNT -- that is maintained solely
in connection with fixed contractual obligations of an insurance
company,
2 Note Purchase Agreement
1. PURCHASE AND SALE OF NOTES
under which any amounts payable, or credited, to any employee
benefit plan having an interest in such account and to any
participant or beneficiary of such plan (including an annuitant)
are not affected in any manner by the investment performance of
the separate account (as provided by 29 C.F.R. (S)2510.3-
101(h)(1)(iii));
(III) QUALIFIED PROFESSIONAL ASSET MANAGER -- an "investment
fund" managed by a "qualified professional asset manager" (as such
terms are defined in Part V of Department of Labor Prohibited
Transaction Class Exemption 84-14) with respect to which the
requirements of such exemption have been satisfied, provided that in
making this representation, it is assumed that the conditions set
forth in Part I(a), Part I(d) and Part I(e) of such Exemption have
been satisfied; or
(III) EXCLUDED PLAN -- an employee benefit plan that is excluded
from the provisions of section 406(a) of ERISA by virtue of section
4(b) of ERISA.
1.4 EXPENSES.
Whether or not the Notes are sold, the Company shall pay, at the Closing
(if the Notes are sold, and otherwise upon receipt of any statement or invoice
therefor), all fees, expenses and costs relating hereto, including, without
limitation, the statement presented at the Closing by your special counsel for
fees and disbursements incurred in connection herewith, each additional
statement for fees and disbursements (promptly upon receipt thereof) of your
special counsel rendered after the Closing in connection with the issuance of
the Notes, and all expenses incurred in complying with each of the conditions to
closing set forth in Section 3.
2. WARRANTIES AND REPRESENTATIONS
To induce you to enter into this Agreement and to purchase the Notes listed
on Annex 1 below your name, the Company warrants and represents, as of the
Closing Date, as follows:
2.1 NATURE OF BUSINESS.
The Placement Material (a copy of all of which previously has been
delivered to you), includes a correct description of the general nature of the
business and principal Properties of the Company and the Subsidiaries as of the
Closing Date.
2.2 FINANCIAL STATEMENTS; DEBT; MATERIAL ADVERSE CHANGE.
(A) FINANCIAL STATEMENTS. The Company has provided you with the
financial statements incorporated in the Placement Material. Such
financial statements have been prepared in accordance with GAAP
consistently applied, and present fairly, in all material respects, the
consolidated financial position of the Company and its consolidated
subsidiaries as of such dates and the results of their operations and cash
flows for the periods specified therein.
(B) DEBT. PART 2.2(B) OF ANNEX 3 lists all Debt of the Company and
the Subsidiaries as of the Closing Date, and provides the following
information with respect to each item of such Debt: the obligor, the holder
thereof, the outstanding amount, the current portion, the final maturity,
and the collateral securing such Debt, if any.
3 Note Purchase Agreement
2. WARRANTIES AND REPRESENTATIONS
(C) MATERIAL ADVERSE CHANGE. Except as disclosed in PART 2.2(C) OF
ANNEX 3, since January 1, 1994, there has been no change in the business
operations, profits, financial condition, Properties or business prospects
of the Company or the Subsidiaries, except changes that, in the aggregate,
could not reasonably be expected to have a Material Adverse Effect.
2.3 SUBSIDIARIES AND AFFILIATES.
(A) OWNERSHIP OF SUBSIDIARIES. PART 2.3(a) OF ANNEX 3 states
(i) the name of each Subsidiary (indicating whether such
Subsidiary is a Restricted Subsidiary or an Unrestricted Subsidiary)
its jurisdiction of incorporation and the percentage of its Voting
Stock owned by the Company and each other Subsidiary,
(ii) the name of each officer and director of the Company and
each Restricted Subsidiary which is not listed in the Placement
Material, and
(iii) the name of each Person that owns more than five percent
(5%) of any class of capital stock of the Company or any Subsidiary.
Each of the Company and the Subsidiaries has good title to all of the
shares it purports to own of the stock of each Subsidiary, free and clear
in each case of any Lien. All such shares have been duly issued and are
fully paid and nonassessable.
(B) DIVIDEND RESTRICTIONS. No Subsidiary is a party to, or otherwise
subject to, any legal restriction or any agreement (other than this
Agreement, the agreements listed in PART 2.3(b) OF ANNEX 3 and statutory,
regulatory and common law restrictions) restricting the ability of such
Subsidiary to pay dividends out of profits or make any other similar
distributions of profits to the Company or any of the Subsidiaries which
own Voting Stock of such Subsidiary.
2.4 TITLE TO PROPERTIES.
(A) GENERAL. Each of the Company and the Subsidiaries has good title
to all of the Property reflected in the most recent balance sheet referred
to in Section 2.2 and to all of the Property purported to have been
acquired by the Company or any Subsidiary after said date (except as sold
or otherwise disposed of in the ordinary course of business), except for
such failures to have good title as are immaterial to such balance sheet
and that, in the aggregate for all such failures, could not reasonably be
expected to have a Material Adverse Effect. All Property of the Company
and the Subsidiaries is free from Liens not permitted by Section 6.9.
(B) LEASES. All leases necessary for the conduct of the respective
businesses of the Company and the Subsidiaries are valid and subsisting and
are in full force and effect, except for such failures to be valid and
subsisting that, in the aggregate for all such failures, could not
reasonably be expected to have a Material Adverse Effect.
(C) INTELLECTUAL PROPERTY. Each of the Company and the Subsidiaries
owns, possesses or has the right to use all of the licenses, permits,
franchises, patents,
4 Note Purchase Agreement
2. WARRANTIES AND REPRESENTATIONS
copyrights, trademarks, service marks and trade names necessary for the
present and currently planned future conduct of its business, without any
known conflict with the rights of others, except for such failures to own,
possess, or have the right to use, that, in the aggregate for all such
failures, could not reasonably be expected to have a Material Adverse
Effect.
2.5 TAXES.
(A) RETURNS FILED; TAXES PAID.
(i) All tax returns required to be filed by or on behalf of each
of the Company and each Subsidiary and any other Person with which the
Company or any Subsidiary files or has filed a consolidated return in
any jurisdiction have been filed on a timely basis, and all taxes,
assessments, fees and other governmental charges upon each of the
Company and such Subsidiaries and upon any of their respective
Properties, income or franchises, that are due and payable have been
paid, except for such tax returns and such tax payments that, in the
aggregate for all such tax returns and payments, could not reasonably
be expected to have a Material Adverse Effect.
(ii) All liabilities of each of the Company and the Subsidiaries
with respect to United States federal income taxes have been finally
determined except for the fiscal years disclosed in PART 2.5 OF ANNEX
3, the only years not closed by the completion of an audit or the
expiration of the statute of limitations.
(B) FINANCIAL STATEMENTS. The amount of the liability for taxes
reflected in each of the consolidated balance sheets referred to in Section
2.2 is in each case a reasonable provision for taxes in accordance with
GAAP as of the dates of such balance sheets (including, without limitation,
any payment due pursuant to any tax sharing agreement) as are or may become
payable by any one or more of the Company and the other Persons
consolidated with the Company in such financial statements in respect of
all tax periods ending on or prior to such dates. The Company does not
know of any proposed additional tax assessment against it or any such
Person that is not provided for in accordance with GAAP in the most recent
balance sheet referred to in Section 2.2.
2.6 PENDING LITIGATION.
(a) There are no proceedings, actions or investigations pending or, to
the knowledge of the Company, threatened against or affecting the Company
or any Subsidiary in any court or before any Governmental Authority or
arbitration board or tribunal that, in the aggregate for all such
proceedings, actions and investigations, could reasonably be expected to
have a Material Adverse Effect.
(b) Neither the Company nor any Subsidiary is in default with respect
to any judgment, order, writ, injunction or decree of any court,
Governmental Authority, arbitration board or tribunal that, in the
aggregate for all such defaults, could reasonably be expected to have a
Material Adverse Effect.
5 Note Purchase Agreement
2. WARRANTIES AND REPRESENTATIONS
2.7 FULL DISCLOSURE.
The financial statements referred to in Section 2.2, this Agreement, the
Placement Material and each written statement (excluding page 5 through page 13,
inclusive, of the December 28 Letter) furnished by or on behalf of the Company
to you in connection with the negotiation or the closing of the sale of the
Notes, do not, taken as a whole, contain any untrue statement of a material fact
or omit a material fact necessary to make the statements contained therein and
herein not misleading. There is no fact that the Company has not disclosed to
you in writing that has had or, so far as the Company can now reasonably
foresee, could reasonably be expected to have a Material Adverse Effect.
2.8 CORPORATE ORGANIZATION AND AUTHORITY.
Each of the Company and the Subsidiaries
(a) is a corporation duly incorporated, validly existing and in good
standing under the laws of its jurisdiction of incorporation,
(b) has all corporate power and authority necessary to own and operate
its Properties and to carry on its business as now conducted and as
presently proposed to be conducted,
(c) has all licenses, certificates, permits, franchises and other
governmental authorizations necessary to own and operate its Properties and
to carry on its business as now conducted and as presently proposed to be
conducted, except where the failure to have such licenses, certificates,
permits, franchises and other governmental authorizations, in the aggregate
for all such failures, could not reasonably be expected to have a Material
Adverse Effect, and
(d) has duly qualified or has been duly licensed, and is authorized to
do business and is in good standing, as a foreign corporation, in each
state in the United States of America and in each other jurisdiction where
the failure to be so qualified or licensed and authorized and in good
standing, in the aggregate for all such failures, could reasonably be
expected to have a Material Adverse Effect.
2.9 CHARTER INSTRUMENTS, OTHER AGREEMENTS.
The Company is not in violation in any respect of any term of any charter
instrument or bylaw. No Subsidiary is in violation in any respect of any term
of any charter instrument or bylaw except for such violations that, in the
aggregate for all such violations, could not reasonably be expected to have a
Material Adverse Effect. Neither the Company nor any Subsidiary is in violation
in any respect of any term in any agreement or other instrument to which it is a
party or by which it or any of its Property may be bound except for such
violations that, in the aggregate for all such violations, could not reasonably
be expected to have a Material Adverse Effect.
6 Note Purchase Agreement
2. WARRANTIES AND REPRESENTATIONS
2.10 RESTRICTIONS ON COMPANY AND SUBSIDIARIES.
Neither the Company nor any Subsidiary:
(a) is a party to any contract or agreement, or subject to any charter
or other corporate restriction that, in the aggregate for all such
contracts, agreements and charter and corporate restrictions, is reasonably
likely to have a Material Adverse Effect;
(b) is a party to any contract or agreement that restricts the right
or ability of such corporation to incur Debt, other than this Agreement and
the agreements listed in PART 2.10 OF ANNEX 3, none of which restricts the
issuance and sale of the Notes or the performance of the Company hereunder
or under the Notes, and true, correct and complete copies of each of which
have been provided to you; or
(c) 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 6.9.
2.11 COMPLIANCE WITH LAW.
Neither the Company nor any Subsidiary is in violation of any law,
ordinance, governmental rule or regulation to which it is subject, except for
such violations that, in the aggregate, could not reasonably be expected to have
a Material Adverse Effect.
2.12 PENSION PLANS.
(A) DISCLOSURE. PART 2.12(A) OF ANNEX 3 correctly identifies all
ERISA Affiliates and all employee benefit plans with respect to which the
Company or any "affiliate" (as such term is defined in section 407(d) of
ERISA) is a "party-in-interest" (as such term is defined in section 3 of
ERISA) or in respect of which the Notes would constitute an "employer
security" (as such term is defined in section 407(d) of ERISA).
(B) PROHIBITED TRANSACTIONS. The execution and delivery of this
Agreement and the issuance and sale of the Notes hereunder will not involve
any transaction that is subject to the prohibitions of section 406 of ERISA
or in connection with which a tax could be imposed pursuant to section
4975(c)(1)(A)-(D) of the IRC. The representation by the Company in the
immediately preceding sentence is made in reliance upon the representations
in Section 1.3(b) as to the source of funds used by you.
(C) COMPLIANCE WITH ERISA. The Company and the ERISA Affiliates and
each Pension Plan are in compliance with ERISA, 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.
(D) PLAN FUNDING STATUS AND LIABILITIES.
(I) FUNDING STATUS. Except as set forth in PART 2.12(D) OF ANNEX
3, the aggregate amount of the "benefit liabilities" (as such term is
defined in section 4001 of ERISA) under each Pension Plan, determined
as of the end of each such Pension Plan's most recently ended plan
year on the basis of the actuarial
7 Note Purchase Agreement
2. WARRANTIES AND REPRESENTATIONS
assumptions specified for funding purposes in such Pension Plan's most
recent actuarial valuation report, did not exceed the aggregate
"current value" (as such term is defined in section 3 of ERISA) of the
assets of such Pension Plan allocable to such benefit liabilities.
(II) CLOSING DATE LIABILITIES. All liabilities to all Pension
Plans and Multiemployer Plans that are due and payable as of the
Closing Date have been paid, except for liabilities that, in the
aggregate for all such liabilities, could not reasonably be expected
to have a Material Adverse Effect. Neither the Company nor any ERISA
Affiliate has incurred any liability pursuant to Title I or Title IV
of ERISA or the penalty or excise tax or security provisions of the
IRC relating to "employee benefit plans" (as defined in section 3 of
ERISA), and no event, transaction, or condition has occurred or exists
that could result in the imposition of any Lien on any of the
Properties of the Company or any ERISA Affiliate, in either case
pursuant to Title I or Title IV of ERISA or pursuant to such penalty
or excise tax or security provisions of the IRC, except for such
liabilities and Liens that, in the aggregate for all such liabilities
and Liens, could not reasonably be expected to have a Material Adverse
Effect.
(III) MULTIEMPLOYER WITHDRAWAL LIABILITIES. Neither the Company
nor any ERISA Affiliate has incurred or currently expects to incur any
withdrawal liability under Title IV of ERISA with respect to any
Multiemployer Plan. There have been no "reportable events" (as such
term is defined in section 4043 of ERISA) with respect to any
Multiemployer Plan that could result in the termination of such
Multiemployer Plan and give rise to a liability of the Company or any
ERISA Affiliate in respect thereof.
(IV) PBGC. No circumstance exists that constitutes grounds under
section 4042 of ERISA entitling the PBGC to institute proceedings to
terminate, or appoint a trustee to administer, any Pension Plan or
trust created thereunder, nor has the PBGC instituted any such
proceeding.
(E) FOREIGN PENSION PLAN. 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,
in the aggregate for all such failures, to comply that 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.
2.13 ENVIRONMENTAL COMPLIANCE.
Each of the Company and the Subsidiaries has obtained all permits, licenses
and other authorizations that are required under all Environmental Protection
Laws, except to the extent that the failure to have any such permit, license or
authorization could not reasonably be expected to have a Material Adverse
Effect. Each of the Company and the Subsidiaries is in compliance with the
terms and conditions of all such permits, licenses and authorizations and is
also in compliance with all other limitations, restrictions, conditions,
standards, prohibitions, requirements, obligations, schedules and timetables
contained in each applicable Environmental
8 Note Purchase Agreement
2. WARRANTIES AND REPRESENTATIONS
Protection Law and in each regulation, code, plan, order, decree, judgment,
injunction, notice or demand letter issued, entered, promulgated or approved
thereunder, except for such failures to comply that could not reasonably be
expected to have a Material Adverse Effect. Except as set forth in PART 2.13 OF
ANNEX 3:
(a) no notice, notification, demand, request for information,
citation, summons or order has been issued, no complaint has been filed, no
penalty has been assessed, and no investigation or review is pending or
threatened by any governmental or other entity with respect to any alleged
failure by the Company or any Subsidiary to have any permit, license or
authorization required in connection with the conduct of the business of
the Company or any of the Subsidiaries or with respect to any generation,
treatment, storage, recycling, transportation or disposal, or any release
as defined in 42 U.S.C (S) 9601(22) ("RELEASE") of any substance regulated
under Environmental Protection Laws ("HAZARDOUS MATERIALS") generated,
treated, stored, recycled, transported, disposed, or the subject of a
Release, by the Company or any of the Subsidiaries, except for such
failures that, in the aggregate for all such failures, could not reasonably
be expected to have a Material Adverse Effect;
(b) (i) neither the Company nor any of the Subsidiaries has handled
any Hazardous Material other than as a generator on any Property now
or previously owned or leased by the Company or any of the
Subsidiaries;
(ii) no polychlorinated biphenyls are or have been present at any
Property now or previously owned or leased by the Company or any of
the Subsidiaries;
(iii) no asbestos is or has been present at any Property now or
previously owned or leased by the Company or any of the Subsidiaries;
and
(iv) no Hazardous Materials have been the subject of a Release,
in a reportable quantity, where such quantity has been established by
statute, ordinance, rule, regulation or order, at, on or under any
Property now or previously owned or leased by the Company or any of
the Subsidiaries;
except for such occurrences that, in the aggregate for all such
occurrences, could not reasonably be expected to have a Material Adverse
Effect; and
(c) no oral or written notification of a Release of a Hazardous
Material has been filed by or on behalf of the Company or any of the
Subsidiaries and no Property now or previously owned or leased by the
Company or any of the Subsidiaries is listed or proposed for listing on
(i) the National Priorities List promulgated pursuant to the
Comprehensive Environmental Response, Compensation and Liability Act
of 1980, as amended,
(ii) the Comprehensive Environmental and Liability Information
System, as provided for by 40 C.F.R (S)300.5, or
(iii) any similar state list of sites requiring investigation or
clean-up;
9 Note Purchase Agreement
2. WARRANTIES AND REPRESENTATIONS
except for such notices and listings that could not, in the aggregate for
all such notices and listings, reasonably be expected to have a Material
Adverse Effect; and
(d) there are no Liens arising under or pursuant to any Environmental
Protection Laws on any of the real properties owned or leased by the
Company or any of the Subsidiaries and no government actions have been
taken or are in the process of being taken that could subject any of such
real properties to such Liens, and neither the Company nor any of the
Subsidiaries would be required to place any notice or restriction relating
to the presence of Hazardous Materials at any real property owned by it in
any deed to such real property, except for such Liens and notices that
could not, in the aggregate for all such Liens and notices, reasonably be
expected to have a Material Adverse Effect.
2.14 SALE OF NOTES IS LEGAL AND AUTHORIZED; OBLIGATIONS ARE ENFORCEABLE.
(A) SALE OF NOTES IS LEGAL AND AUTHORIZED. Each of the issuance, sale
and delivery of the Notes by the Company, the execution and delivery hereof
by the Company and compliance by the Company with all of the provisions
hereof and of the Notes:
(i) is within the corporate powers of the Company; and
(ii) is legal and does not conflict with, result in any breach of
any of the provisions of, constitute a default under, or result in the
creation of any Lien upon any Property of the Company or any
Subsidiary under the provisions of,
(A) any agreement, charter instrument, bylaw or other
instrument to which it is a party or by which it or any of its
Property may be bound, or
(B) any order, judgment, decree, or ruling of any court,
arbitrator or Governmental Authority applicable to the Company or
any Subsidiary.
(B) OBLIGATIONS ARE ENFORCEABLE. Each of this Agreement and the Notes
has been duly authorized by all necessary action on the part of the
Company, has been executed and delivered by duly authorized officers of the
Company, and constitutes a legal, valid and binding obligation of the
Company, enforceable in accordance with its terms, except that the
enforceability hereof and of the Notes may be:
(i) limited by applicable bankruptcy, reorganization,
arrangement, insolvency, moratorium, or other similar laws affecting
the enforceability of creditors' rights generally; and
(ii) subject to the availability of equitable remedies.
2.15 GOVERNMENTAL CONSENT TO SALE OF NOTES.
(a) Neither the nature of the Company or any Subsidiary, or of any of
their respective businesses or Properties, nor any relationship between the
Company or any Subsidiary and any other Person, nor any circumstance in
connection with the offer,
10 Note Purchase Agreement
2. WARRANTIES AND REPRESENTATIONS
issuance, sale or delivery of the Notes and the execution and delivery of
this Agreement, or the performance of the obligations hereunder and
thereunder, is such as to require a consent, approval or authorization of,
or filing, registration or qualification with, any Governmental Authority
on the part of the Company as a condition to the execution and delivery of
this Agreement, the offer, issuance, sale or delivery of the Notes, or the
performance of the obligations hereunder or thereunder.
(b) The issuance and sale of the Notes, the incurrence of the Debt
represented thereby, and the performance hereunder and thereunder, by the
Company,
(i) is not subject to regulation under the Investment Company
Act of 1940 as amended, the Public Utility Holding Company Act of 1935
as amended, the Interstate Commerce Act as amended or the Federal
Power Act as amended, and
(ii) does not violate any provision of any statute or other rule
or regulation of any Governmental Authority applicable to the Company
or any Subsidiary.
2.16 NO DEFAULTS UNDER NOTES.
No event has occurred and no condition exists that, upon the execution and
delivery of this Agreement and the issuance and sale of the Notes, would
constitute a Default or an Event of Default.
2.17 PRIVATE OFFERING OF NOTES.
(a) Neither the Company nor Cascade Capital Corporation (the only
Person authorized or employed by the Company as agent, broker, dealer or
otherwise in connection with the offering or sale of the Notes or any
similar security of the Company, other than employees of the Company) has
offered any of the Notes or any similar security of the Company for sale
to, or solicited offers to buy any thereof from, or otherwise approached or
negotiated with respect thereto with, any prospective purchaser, other than
the number of institutional investors (including you) set forth in PART
2.17 OF ANNEX 3, each of whom was offered all or a portion of the Notes at
private sale for investment.
(b) Neither the Company nor any of the Subsidiaries, nor any agent
acting on behalf of any of them, has taken any action that would subject
the issue or sale of the Notes to the registration provisions of section 5
of the Securities Act or to the registration, qualification or other
similar provisions of any securities or "blue sky" law of any applicable
jurisdiction.
2.18 USE OF PROCEEDS OF NOTES.
(A) USE OF PROCEEDS. The Company shall use the proceeds of the sale
of the Notes to repay variable-rate short-term indebtedness for money
borrowed.
(B) MARGIN SECURITIES. None of the transactions contemplated herein
and in the Notes (including, without limitation, the use of the proceeds
from the sale of the
11 Note Purchase Agreement
2. WARRANTIES AND REPRESENTATIONS
Notes) violates, will violate or will result in a violation of section 7 of
the Exchange Act, or any regulation issued pursuant thereto, including,
without limitation, Regulation G, Regulation T and Regulation X of the
Board of Governors of the Federal Reserve System, 12 C.F.R., Chapter II.
Neither the Company nor any Subsidiary intends to use the proceeds of the
sale of the Notes for the purpose of "buying or carrying" (as defined in
said Regulation G), or refinancing borrowings that were used for the
purpose of buying or carrying, any "margin stock" (as defined in said
Regulation G).
(C) ABSENCE OF FOREIGN OR ENEMY STATUS. Neither the sale of the Notes
nor the use of proceeds from the sale thereof will result in a violation of
any of the foreign assets control regulations of the United States Treasury
Department (31 CFR, Subtitle B, Chapter V, as amended), or any ruling
issued thereunder or any enabling legislation or Presidential Executive
Order in connection therewith.
3. CLOSING CONDITIONS
Your obligation to purchase and pay for the Notes to be delivered to you at
the Closing is subject to the conditions precedent set forth in this Section 3.
The failure of the Company to satisfy such conditions shall not operate to waive
any of your rights against the Company.
3.1 OPINIONS OF COUNSEL.
You shall have received from
(a) Hyman Bielsky, general counsel of the Company, and
(b) Hebb & Gitlin, your special counsel,
closing opinions, each dated as of the Closing Date, substantially in the
respective forms set forth in Exhibit B1 and Exhibit B2 and as to such other
matters as you may reasonably request. This Section 3.1 shall constitute
direction by the Company to such counsel named in the foregoing subsection (a)
to deliver such closing opinion to you.
3.2 WARRANTIES AND REPRESENTATIONS TRUE.
The warranties and representations contained in Section 2 shall be true on
the Closing Date with the same effect as though made on and as of that date.
3.3 OFFICERS' CERTIFICATES.
You shall have received
(a) a certificate dated the Closing Date and signed by a Senior
Officer, substantially in the form of Exhibit C, and
(b) a certificate dated the Closing Date and signed by the Secretary
or an Assistant Secretary of the Company, substantially in the form of
Exhibit D.
12 Note Purchase Agreement
3. CLOSING CONDITIONS
3.4 LEGALITY.
The Notes shall on the Closing Date qualify as a legal investment for you
under applicable insurance law (without regard to any "basket" or "leeway"
provisions), and the acquisition thereof shall not subject you to any penalty or
other onerous condition pursuant to any such law or regulation, and you shall
have received such evidence as you may reasonably request to establish
compliance with this condition.
3.5 PRIVATE PLACEMENT NUMBER.
The Company shall have obtained or caused to be obtained a private
placement number for the Notes from the CUSIP Service Bureau of Standard &
Poor's, a division of McGraw-Hill, Inc., and you shall have been informed of
such private placement number.
3.6 EXPENSES.
All fees and disbursements required to be paid pursuant to Section 1.4
shall have been paid in full.
3.7 OTHER PURCHASERS.
None of the Other Purchasers shall have failed to execute and deliver a
Note Purchase Agreement or to accept delivery of or make payment for the Notes
to be purchased by it on the Closing Date.
3.8 PROCEEDINGS SATISFACTORY.
All proceedings taken in connection with the issuance and sale of the Notes
and all documents and papers relating thereto shall be satisfactory to you and
your special counsel. You and your special counsel shall have received copies
of such documents and papers as you or they may reasonably request in connection
therewith or in connection with your special counsel's closing opinion, all in
form and substance satisfactory to you and your special counsel.
4. PRINCIPAL PAYMENTS
4.1 OPTIONAL PREPAYMENTS.
(A) OPTIONAL PREPAYMENTS. The Company may prepay the principal amount
of the Notes in whole or in part, at any time, in multiples of One Million
Dollars ($1,000,000) (or, if the aggregate outstanding principal amount of
the Notes is less than One Million Dollars ($1,000,000) at such time, then
such principal amount), together with
(i) an amount equal to the Make-Whole Amount due at such time in
respect of the principal amount of the Notes being so prepaid, and
(ii) interest on such principal amount then being prepaid accrued
to the prepayment date.
13 Note Purchase Agreement
4. PRINCIPAL PAYMENTS
(B) NOTICE OF OPTIONAL PREPAYMENT. The Company will give notice of
any optional prepayment of the Notes to each holder of Notes not less than
thirty (30) days nor more than sixty (60) days before the specified
prepayment date, stating:
(i) the specified prepayment date;
(ii) the Section under which the prepayment is to be made;
(iii) the principal amount of each Note to be prepaid on such
date;
(iv) the interest to be paid on each such Note, accrued to the
specified prepayment date, and
(v) the calculation (with details) of an estimated Make-Whole
Amount, if any, (calculated as if the date of such notice was the
specified prepayment date) due in connection with such prepayment.
Notice of prepayment having been so given, the aggregate principal amount
of the Notes to be prepaid stated in such notice, together with the Make-
Whole Amount as of the specified prepayment date, if any, and interest
thereon accrued to the specified prepayment date, shall become due and
payable on the specified prepayment date. Two (2) Business Days prior to
the making of such prepayment, the Company shall deliver to each holder of
Notes by facsimile transmission a certificate of a Senior Financial Officer
specifying the details of the calculation of such Make-Whole Amount as of
the specified prepayment date.
4.2 PREPAYMENTS AMONG NOTEHOLDERS.
If at the time any prepayment of the principal of the Notes made pursuant
to Section 4.1 is due there is more than one Note outstanding, the aggregate
principal amount of each such optional partial prepayment of the Notes shall be
allocated among the Notes at the time outstanding pro rata in proportion to the
respective unpaid principal amounts of all such outstanding Notes.
4.3 NOTATION OF NOTES ON PREPAYMENT.
Upon any partial prepayment of a Note, the holder of such Note may (but
shall not be required to), at its option,
(a) surrender such Note to the Company pursuant to Section 5.2 in
exchange for a new Note in a principal amount equal to the principal amount
remaining unpaid on the surrendered Note,
(b) make such Note available to the Company for notation thereon of
the portion of the principal so prepaid, or
(c) mark such Note with a notation thereon of the portion of the
principal so prepaid.
14 Note Purchase Agreement
4. PRINCIPAL PAYMENTS
In case the entire principal amount of any Note is prepaid, such Note shall be
surrendered to the Company for cancellation and shall not be reissued, and no
Note shall be issued in lieu of the prepaid principal amount of any Note.
4.4 OFFER TO PREPAY UPON CHANGE IN CONTROL.
(A) IN GENERAL. In the event that there occurs both
(i) a Designated Event, and
(ii) a Rating Decline attributable at least in part to such
Designated Event,
each holder of the Notes shall have the right, at the holder's option, to
require the Company to prepay all or any part of such holder's Notes on the
date (the "PREPAYMENT DATE") that is one hundred (100) days after the
occurrence of the first of any Rating Declines in respect of such
Designated Event, at one hundred percent (100%) of the principal amount
thereof, together with interest accrued to (but not including) the
Prepayment Date and a Make-Whole Amount determined as of the Prepayment
Date.
(B) NOTICE OF OFFER TO PREPAY. The Company shall notify each holder
of Notes on or before the twenty-eighth (28th) day after the date of the
occurrence of such Rating Decline of the occurrence of the Designated Event
and the Rating Decline and of the Company's offer to prepay the Notes (and
such notice shall constitute such offer). Such notice shall be executed by
a Senior Officer and shall
(i) specify the Prepayment Date;
(ii) state that such offer is made pursuant to Section 4.4;
(iii) state the principal amount of each Note offered to be
prepaid;
(iv) state the amount of interest that would be due on each
such Note offered to be prepaid, accrued to the Prepayment Date;
(v) set forth the calculation (with details) of an estimated
Make-Whole Amount, if any, due in connection with such prepayment
(calculated as if the Prepayment Date was the date of the occurrence
of the Rating Decline with respect thereto and the offer to prepay was
accepted in full);
(vi) describe, in reasonable detail, the nature and date of the
Designated Event and the relevant Rating Decline; and
(vii) contain a conspicuous legend stating that each holder of
Notes shall be deemed to have rejected such offered prepayment if such
holder shall not have sent a notice of acceptance to the Company prior
to the tenth (10th) day prior to the Prepayment Date, and specify such
tenth (10th) prior day.
15 Note Purchase Agreement
4. PRINCIPAL PAYMENTS
(C) ACCEPTANCE OF OFFER. To accept such offer, the holder of a Note
must send, at least ten (10) days (the "OFFER ACCEPTANCE DATE") prior to
the Prepayment Date, a notice to the Company of the holder's acceptance of
such offer. Such notice shall specify the portion of such holder's Notes
with respect to which such acceptance applies. Such acceptance will be
irrevocable. If so accepted, the aggregate principal amount of the Notes
to be prepaid specified in such acceptance, together with the Make-Whole
Amount as of the Prepayment Date, if any, and interest thereon accrued to
the Prepayment Date, shall become due and payable on the Prepayment Date.
If a holder of Notes shall not have responded to such offered prepayment on
or prior to the Offer Acceptance Date, such holder shall be deemed to have
rejected such offered prepayment.
(D) INFORMATION RE ACCEPTANCES. The Company shall respond promptly to
all (oral and written) inquiries from holders of Notes regarding the amount
of Notes held by other holders of Notes in respect of which the Company has
received acceptances and the identity of such other holders.
(E) NOTICE CONCERNING STATUS OF HOLDERS OF NOTES. Promptly after each
Prepayment Date and the making of all prepayments contemplated on such
Prepayment Date under this Section 4.4 (and, in any event, within thirty
(30) days thereafter), the Company shall deliver to each remaining holder
of Notes a certificate signed by a Senior Officer containing a list of the
then current holders of Notes (together with their addresses) and setting
forth as to each such holder the outstanding principal amount of Notes held
by each such holder at such time.
4.5 NO OTHER PREPAYMENTS; ACQUISITION OF NOTES.
Except for prepayments made in accordance with this Section 4, the Company
may not make any prepayment of principal in respect of the Notes. The Company
will not, and will not permit any Subsidiary or any Affiliate to, directly or
indirectly, acquire or make any offer to acquire any Notes.
5. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES
5.1 REGISTRATION OF NOTES.
The Company will keep at its office, maintained pursuant to Section 6.3, a
register for the registration and transfer of Notes. The name and address of
each holder of one or more Notes, each transfer thereof and the name and address
of each transferee of one or more Notes shall be registered in such register.
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.
5.2 EXCHANGE OF NOTES.
(A) EXCHANGE OF NOTES. Upon surrender of any Note at the office of
the Company maintained pursuant to Section 6.3, duly endorsed or
accompanied by a written instrument of transfer duly executed by the
registered holder of such Note or such holder's attorney duly authorized in
writing, the Company will execute and deliver, at the
16 Note Purchase Agreement
5. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES
Company's expense (except as provided in this Section 5.2(a) below), a new
Note or Notes 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 A. 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. Each such new Note shall carry the
same rights to unpaid interest and interest to accrue that were carried by
the Note so exchanged or transferred. 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 Five Hundred Thousand Dollars ($500,000),
provided that a holder of Notes may transfer its entire holding of Notes
regardless of the principal amount of such holder's Notes.
(B) COSTS. The Company will pay the cost of delivering to or from
such holder's home office or custodian bank from or to the Company, insured
to the reasonable satisfaction of such holder, the surrendered Note and any
Note issued in substitution or replacement for the surrendered Note.
(C) ACTIONS OF NOTEHOLDER. Each holder of Notes agrees that in the
event it shall sell or transfer any Note without surrendering such Note to
the Company as set forth in Section 5.2(a), it shall
(i) prior to the delivery of such Note make a notation thereon
of all principal, if any, prepaid on such Note and shall also indicate
thereon the date to which interest shall have been paid on such Note,
and
(ii) promptly notify or cause the transferee to notify the
Company of the name and address of the transferee of any such Note so
transferred and the effective date of such transfer.
5.3 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 (or of ownership by such
institutional investor's nominee) and such loss, theft, destruction or
mutilation), and
(a) in the case of loss, theft or destruction, of indemnity reasonably
satisfactory to the Company (provided that if the holder of such Note is an
institutional investor or a nominee of an institutional investor, such
holder'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 will execute and deliver, in lieu thereof, a
replacement Note, dated and bearing interest from the date to which interest
shall have been paid on such lost,
17 Note Purchase Agreement
5. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES
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.
5.4 ISSUANCE TAXES.
The Company will pay all taxes (if any) due (but not, in any event, income
taxes) in connection with and as the result of the initial issuance and sale of
the Notes and in connection with any modification, waiver or amendment of this
Agreement or the Notes and shall save each holder of Notes harmless without
limitation as to time against any and all liabilities with respect to all such
taxes.
6. COVENANTS
The Company covenants that on and after the Closing Date and so long as any
of the Notes shall be outstanding:
6.1 PAYMENT OF TAXES AND CLAIMS.
The Company will, and will cause each Subsidiary to, pay before they become
delinquent,
(a) all taxes, assessments and governmental charges or levies imposed
upon it or its Property, and
(b) all claims or demands of materialmen, mechanics, carriers,
warehousemen, vendors, landlords and other like Persons that, if unpaid,
might result in the creation of a statutory, regulatory or common law Lien
upon its Property,
provided, that items of the foregoing description need not be paid so long as
such items are being actively contested in good faith and by appropriate
proceedings, reasonable book reserves in accordance with GAAP have been
established and maintained with respect thereto, and such items, in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.
6.2 MAINTENANCE OF PROPERTIES; CORPORATE EXISTENCE; ETC.
The Company will, and will cause each Subsidiary to:
(A) PROPERTY -- maintain its Property in good condition, ordinary wear
and tear and obsolescence excepted, and make all necessary renewals,
replacements, additions, betterments and improvements thereto, provided
that this Section 6.2(a) shall not prevent the Company or any Subsidiary
from discontinuing the operation and the maintenance of any of its
Properties if such discontinuance is desirable in the conduct of its
business and such discontinuance could not reasonably be expected to have a
Material Adverse Effect;
(B) INSURANCE -- maintain, with financially sound and reputable
insurers, insurance with respect to its Property and business against such
casualties and contingencies, of such types and in such amounts as is
customary in the case of corporations of established reputations engaged in
the same or a similar business and similarly situated provided that self-
insurance, to the extent reasonable and prudent, and
18 Note Purchase Agreement
6. COVENANTS
to the extent customary among such corporations, will satisfy the
requirements of this Section 6.2(b);
(C) FINANCIAL RECORDS -- keep proper books of record and account, in
which full and correct entries shall be made of all dealings and
transactions of or in relation to the Properties and business thereof, and
which will permit the production of financial statements in accordance with
GAAP;
(D) CORPORATE EXISTENCE AND RIGHTS -- do or cause to be done all
things necessary to preserve and keep in full force and effect its
corporate existence, corporate rights (charter and statutory) and corporate
franchises except as permitted by Section 6.4; and
(E) COMPLIANCE WITH LAW -- comply with all laws, ordinances and
governmental rules and regulations to which it is subject (including,
without limitation, any Environmental Protection Law) and obtain all
licenses, certificates, permits, franchises and other governmental
authorizations necessary to the ownership of its Properties and the conduct
of its business except for such violations and failures to obtain that, in
the aggregate, could not reasonably be expected to have a Material Adverse
Effect.
6.3 PAYMENT OF NOTES AND MAINTENANCE OF OFFICE.
The Company will punctually pay, or cause to be paid, the principal of and
interest (and Make-Whole Amount, if any) on, the Notes, as and when the same
shall become due according to the terms hereof and of the Notes, and will
maintain an office at the address of the Company as provided in Section 10.1
where notices, presentations and demands in respect hereof or the Notes may be
made upon it. Such office will be maintained at such address until such time as
the Company shall notify the holders of the Notes of any change of location of
such office, which will in any event be located within the United States of
America.
6.4 MERGER.
The Company will not merge into, consolidate with, or sell, lease, transfer
or otherwise dispose of all or substantially all of its Property to any other
Person, provided that the foregoing restriction does not apply an Acceptable
Acquisition, so long as the Company is the surviving corporation, and
immediately after giving effect to such transaction, no Default or Event of
Default would exist.
6.5 MAINTENANCE OF SHAREHOLDERS' EQUITY.
The Company will at all times maintain Consolidated Shareholders' Equity in
an amount not less than
(a) Three Hundred Sixty Million Dollars ($360,000,000), plus
(b) the sum of the amounts calculated with respect to each fiscal
quarter of the Company ended after January 1, 1994 equal, with respect to
each such fiscal quarter, to the greater of fifty percent (50%) of
Consolidated Net Income for such fiscal quarter or zero (0).
19 Note Purchase Agreement
6. COVENANTS
6.6 MAINTENANCE OF DEBT TO CAPITAL RATIO.
The Company will at all times maintain the ratio of Consolidated Debt to
Consolidated Total Capitalization in an amount not greater than 0.5 to 1, in
each case determined at such time.
6.7 MAINTENANCE OF INTEREST COVERAGE RATIO.
The Company will at all times maintain the ratio of Consolidated EBIT to
Consolidated Interest Expense in an amount not less than 2.5 to 1, in each case
determined in respect of the then most recently ended period of four (4) fiscal
quarters of the Company.
6.8 LEASES.
The Company will not, and will not permit any Restricted Subsidiary to,
create, incur, assume or suffer to exist, any obligation as lessee for the
rental or hire of any Property, except:
(a) leases existing on the date of this Agreement and any extensions
or renewals therefor;
(b) Capital Leases secured by Liens permitted by Section 6.9; and
(c) obligations as lessee under leases for rental payments in any
fiscal year of the Company up to an aggregate amount determined in respect
of the Company and the Restricted Subsidiaries on a consolidated basis not
exceeding ten percent (10%) of Consolidated Shareholders' Equity required
to be maintained pursuant to Section 6.5, in each case determined at the
end of such fiscal year.
6.9 LIENS.
(A) GENERALLY. The Company will not, and will not permit any
Restricted Subsidiary to, cause or permit, or agree or consent to cause or
permit in the future (upon the happening of a contingency or otherwise),
any of their Property, whether now owned or hereafter acquired, at any time
to be subject to a Lien except:
(I) CREDIT AGREEMENT -- Liens in favor of the "Agent" (as
defined in the Credit Agreement) securing "Loans" (as defined in the
Credit Agreement) made under the Credit Agreement provided that the
Company shall have caused to be made provision whereby the Notes are
secured equally and ratably with all obligations secured by such Liens
pursuant to such agreements and instruments as shall be approved by
the Required Holders, and the Company shall have caused to be
delivered to each holder of a Note an opinion of independent counsel
acceptable to the Required Holders to the effect that such agreements
and instruments are enforceable in accordance with their terms and
comply with the terms of this Agreement;
(II) TAXES, ETC. -- Liens for taxes or assessments or other
government charges or levies if not yet due and payable or if due and
payable if they are being contested in good faith by appropriate
proceedings and for which appropriate reserves are maintained;
20 Note Purchase Agreement
6. COVENANTS
(III) ORDINARY COURSE -- Liens imposed by law, such as
mechanics', materialmen's landlord's, warehousemen's and carrier's
Liens, and other similar Liens securing obligations incurred in the
ordinary course of business that are not past due for more than thirty
(30) days, or which are being contested in good faith by appropriate
proceedings and for which appropriate reserves have been established;
(IV) WORKERS' COMPENSATION -- Liens arising under workers'
compensation, unemployment insurance, social security and similar
legislation (other than ERISA);
(V) BID AND PERFORMANCE BONDS -- Liens in the form of deposits or
pledges to secure the performance of bids, tenders, contracts (other
than contracts for the payment of money), leases (to the extent
permitted under the terms of this Agreement), public and statutory
obligations, surety, stay, appeal, indemnity, performance or other
similar bonds, and other similar obligations arising in the ordinary
course of business;
(VI) JUDGMENT LIENS -- judgment and other similar Liens arising
in connection with court proceedings; provided that the execution or
other enforcement of such Liens is effectively stayed and the claims
secured thereby are being actively contested in good faith and by
appropriate proceedings;
(VII) REAL ESTATE -- easements, rights-of-way, and other similar
restrictions and encumbrances that, in the aggregate, do not
materially interfere with the occupation, use and enjoyment by the
Company or any Restricted Subsidiary of the Property encumbered
thereby in the ordinary course of their respective businesses or
materially impair the value of the Property subject thereto;
(VIII) INTRA-GROUP LIENS -- Liens securing obligations of a
Restricted Subsidiary to the Company or another Restricted Subsidiary;
(IX) PURCHASE MONEY LIENS, ETC. -- purchase money Liens on any
Property hereafter acquired or the assumption of any Lien on Property
existing at the time of such acquisition, or a Lien incurred in
connection with any conditional sale or other title retention
agreement or a Capital Lease, so long as:
(A) such Property is acquired by the Company or a Restricted
Subsidiary in the ordinary course of its business and a purchase
money Lien on any such Property is created contemporaneously with
such acquisition;
(B) the obligation secured by any Lien so created, or
assumed or existing shall not exceed seventy-five percent (75%)
of the lesser of cost or Fair Market Value as of the time of
acquisition of the Property covered thereby to the Company or the
Restricted Subsidiary acquiring the same;
21 Note Purchase Agreement
6. COVENANTS
(C) each such Lien shall attach only to the Property so
acquired and fixed improvements thereon; and
(D) the sum, at any time, of the aggregate amount of all
obligations secured by all such Liens (including the aggregate
amount of Attributable Debt outstanding in respect of Sale and
Lease-Back Transactions secured by Liens permitted by this
Section 6.9(a)(ix)) does not exceed an amount equal to ten
percent (10%) of the amount of Consolidated Shareholders' Equity
required to be maintained pursuant to Section 6.5, in each case
determined at such time;
(X) CLOSING DATE LIENS -- Liens existing as of the Closing Date
and described in PART 6.9(A)(X) OF ANNEX 3;
(XI) BASKET LIENS -- additional Liens securing obligations
("BASKET OBLIGATIONS") not otherwise permitted to be secured by this
Section 6.9(a) so long as the sum of the aggregate amount of
outstanding Basket Obligations plus the Sale and Lease-Back Basket
Amount does not at any time exceed an amount equal to five percent
(5%) of Consolidated Shareholders' Equity required to be maintained
pursuant to Section 6.5, in each case determined at such time.
(B) EQUAL AND RATABLE LIEN; EQUITABLE LIEN. In case any Property
shall be subjected to a Lien in violation of this Section 6.9, the Company
will forthwith make or cause to be made, to the fullest extent permitted by
applicable law, provision whereby the Notes will be secured equally and
ratably as to such Property with all other obligations secured thereby
pursuant to such agreements and instruments as shall be approved by the
Required Holders, and the Company will promptly cause to be delivered to
each holder of a Note an opinion of independent counsel satisfactory to the
Required Holders to the effect that such agreements and instruments are
enforceable in accordance with their terms, and in any event the Notes
shall have the benefit, to the full extent that, and with such priority as,
the holders of Notes may be entitled under applicable law, of an equitable
Lien on such Property (and any proceeds thereof) securing the Notes. Such
violation of this Section 6.9 will constitute an Event of Default
hereunder, whether or not any such provision is made or any equitable Lien
is created pursuant to this Section 6.9(b).
(C) CONSTRUCTION. Nothing in this Section 6.9 shall be construed to
permit the incurrence or existence of any Debt not otherwise permitted by
this Agreement. Nothing in this Agreement that permits the incurrence or
existence of any Debt shall be construed to permit the incurrence or
existence of a Lien securing such Debt unless such Lien is permitted by
this Section 6.9.
6.10 LIMITATION ON SALE AND LEASE-BACK TRANSACTIONS.
The Company will not, and will not permit any Restricted Subsidiary to,
enter into any arrangement with any Person providing for the leasing by the
Company or any Restricted Subsidiary of any Principal Property, whether now
owned or hereafter acquired (except for temporary leases for a term, including
any renewal thereof, of not more than three (3) years and except for leases
between the Company and any Restricted Subsidiary, between any Restricted
22 Note Purchase Agreement
6. COVENANTS
Subsidiary and the Company or between Restricted Subsidiaries), which Property
has been or is to be sold or transferred by the Company or such Restricted
Subsidiary to such Person with the intention of taking back a lease of such
Property (a "SALE AND LEASE-BACK TRANSACTION") unless
(A) PURCHASE MONEY LIENS -- the Liens securing the obligations arising
in respect of such Sale and Lease-Back Transaction are permitted by Section
6.9(a)(ix),
(B) BASKET LIENS -- the Liens securing the obligations arising in
respect of such Sale and Lease-Back Transaction are permitted by Section
6.9(a)(xi), or
(C) DEBT REPAYMENT -- the Company shall apply, within two hundred
seventy (270) days of the effective date of any such arrangement, an amount
equal to the Attributable Debt in respect of such Sale and Lease-Back
Transaction to the prepayment or retirement (other than any mandatory
prepayment or retirement) of Debt incurred or assumed by the Company or any
Restricted Subsidiary (other than Debt owed to the Company or any
Restricted Subsidiary) which by its terms matures at or is extendible or
renewable at the option of the obligor to a date more than twelve (12)
months after the date of the creation of such indebtedness (which
prepayment, if such Debt is the Debt evidenced by the Notes, shall be made
in accordance with Section 4.1).
6.11 INVESTMENTS.
The Company will not, and will not permit any Restricted Subsidiary to,
make any loan or advance to any Person or purchase or otherwise acquire any
capital stock, Property (other than inventory, equipment or real estate
purchased in the ordinary course of business), obligations or other securities
of, make any capital contribution to, or otherwise invest in, or acquire any
interest in, any person (any of the foregoing being "INVESTMENTS"), except:
(a) direct obligations of the United States of America or any agency
thereof with maturities of one year or less from the date of acquisition;
(b) commercial paper of a domestic issuer rated at least "A-1" by
Standard & Poor's Corporation or "P-1" by Moody's Investors Service, Inc.
or participations (under asset sales programs) in loans made by banks to
borrowers whose commercial paper is so rated;
(c) certificates of deposit with maturities of one year or less from
the date of acquisition issued by any commercial bank operating within the
United States of America having capital and surplus in excess of One
Hundred Fifty Million Dollars ($150,000,000), or certificates of deposit
with maturities of one year or less from the date of acquisition and which
are covered by Federal Deposit Insurance Corporation insurance, issued by
any commercial bank operating within the United States of America, without
regard to the capital and surplus of that bank;
(d) stock, obligations or securities received in settlement of debts
(created in the ordinary course of business) owing to the Company or any
such Restricted Subsidiary;
23 Note Purchase Agreement
6. COVENANTS
(e) any Acceptable Acquisition;
(f) direct obligations of states or municipalities of the United
States rated at least "A" by Standard & Poor's Ratings Group, a division of
McGraw Hill, Inc. or by Moody's Investors Service, Inc.;
(g) other financial market instruments rated at least "A" by Standard
& Poor's Corporation or by Moody's Investors Service, Inc. or backed by
instruments so rated; and
(h) other Investments in an aggregate amount (valued at cost) at any
one time not exceeding an amount equal to ten percent (10%) of Consolidated
Shareholders' Equity.
Any corporation that becomes a Restricted Subsidiary after the Closing Date
shall be deemed to have made, at the time it becomes a Restricted Subsidiary,
all Investments of such corporation existing immediately after it becomes a
Restricted Subsidiary.
6.12 SALE OF ASSETS.
The Company will not, and will not permit any Restricted Subsidiary to,
sell, lease, assign, transfer or otherwise dispose of any of its now owned or
hereafter acquired Property (including, without limitation, shares of stock and
indebtedness of such Restricted Subsidiaries, receivables and leasehold
interests); provided that the foregoing prohibition will not apply to the sale,
lease assignment, transfer or other disposition of
(a) inventory in the ordinary course of business;
(b) Property no longer used or useful in the conduct of its business;
(c) Property from a Restricted Subsidiary to the Company; and
(d) other Property, so long as the aggregate book value of all such
other Property disposed of during any fiscal year of the Company does not
exceed an amount equal to fifteen percent (15%) of Consolidated
Shareholders' Equity determined as of the end of the then most recently
ended fiscal year of the Company.
6.13 STOCK OF SUBSIDIARIES.
The Company will not, and will not permit any Restricted Subsidiary to,
sell or otherwise dispose of any shares of capital stock of any of the
Restricted Subsidiaries, except in connection with a transaction permitted under
Section 6.12.
6.14 DESIGNATION OF SUBSIDIARIES.
(A) RIGHT TO DESIGNATE SUBSIDIARIES. The Company may designate each
Subsidiary as a Restricted Subsidiary or an Unrestricted Subsidiary, as
provided in this Section 6.14.
24 Note Purchase Agreement
6. COVENANTS
(B) INITIAL DESIGNATION.
(I) SUBSIDIARIES IN EXISTENCE ON THE CLOSING DATE. Each
Subsidiary in existence on the Closing Date shall be deemed to have
been designated as an Unrestricted Subsidiary unless the Company shall
indicate in PART 2.3(A) OF ANNEX 3 that such Subsidiary is a
Restricted Subsidiary.
(II) SUBSIDIARIES ACQUIRED AFTER THE CLOSING DATE. The Company
may, within thirty (30) days after the acquisition or creation of any
Subsidiary, designate such Subsidiary as an Unrestricted Subsidiary or
a Restricted Subsidiary and may notify the holders of the Notes within
such thirty (30) day period. If such notice is sent to the holders of
the Notes within thirty (30) days after the acquisition or creation of
such Subsidiary, such designation shall be retroactive to the date of
such acquisition or creation. If the Company fails to so make such
designation (and send such notice) within such thirty (30) day period,
such Subsidiary shall be deemed to have been retroactively (to the
date of creation or acquisition) designated as an Unrestricted
Subsidiary.
(C) DESIGNATION OF SUBSIDIARIES AFTER INITIAL DESIGNATION. The
Company may, at any time after the initial designation of a Subsidiary as
an Unrestricted Subsidiary, designate such Subsidiary as a Restricted
Subsidiary, by notice sent (and dated the date of such sending)
simultaneously to each holder of Notes. Such designation shall take effect
upon the sending of such notice. No designation will be permitted to be
made and no notice will be permitted to be sent at any time when a Default
or an Event of Default is outstanding, and all designations made and
notices sent at any such time will be ineffective. After the designation
of a Subsidiary as a Restricted Subsidiary, no further designations of such
Subsidiary will at any time be permitted or effective.
(D) EFFECT OF DESIGNATIONS ON FINANCIAL CALCULATIONS. Calculations of
financial amounts or ratios required by this Agreement to be made as of any
date prior to the effective date of any designation of a Subsidiary as a
Restricted Subsidiary or an Unrestricted Subsidiary shall not be restated
as a result of such designation.
6.15 LINE OF BUSINESS.
The Company will, and will cause each Restricted Subsidiary to, engage in
an efficient and economical manner in a business of the same general type as
conducted by it on the Closing Date.
6.16 TRANSACTIONS WITH AFFILIATES.
The Company will not, and will not permit any Restricted Subsidiary to,
enter into any transaction, including, without limitation, the purchase, sale,
lease or exchange of Property or the rendering of any service, with any
Affiliate, except in the ordinary course of and pursuant to the reasonable
requirements of the Company's or such Restricted Subsidiary's business and upon
fair and reasonable terms no less favorable to the Company or such Restricted
Subsidiary than would obtain in a comparable arm's-length transaction with a
Person not an Affiliate.
25 Note Purchase Agreement
6. COVENANTS
6.17 ENVIRONMENTAL COMPLIANCE.
(a) The Company will, and will cause each of the Subsidiaries to,
comply with, all applicable Environmental Protection Laws, except where all
such failures to comply, in the aggregate, could not reasonably be expected
to have a Material Adverse Effect.
(b) The Company will, and will cause the Subsidiaries to,
(i) keep all of their respective Properties free of any Lien
imposed pursuant to such Environmental Protection Laws; and
(ii) pay or cause to be paid when due any and all costs in
connection with the foregoing, including, without limitation, the cost
of removal, treatment and disposal of any Hazardous Materials.
(c) The Company will not, and will not permit any Subsidiary to, use
its Properties to generate, manufacture, refine, produce, treat, store,
handle, dispose of, transfer, process or transport Hazardous Materials
other than in compliance with all requirements of law, except where all
such failures to comply, individually or in the aggregate, will not have a
Material Adverse Effect.
(d) The Company agrees to indemnify and hold you and your directors,
officers, agents and employees (collectively the "INDEMNITEES") free and
harmless from and against all liability, loss, cost, damage and expense
(including, without limitation, attorneys' fees and expenses incurred in
connection with environmental compliance and clean-up obligations imposed
under applicable Environmental Protection Laws) any such Indemnitee may
sustain by reason of the assertion against it by any party of any claim in
connection with any Hazardous Materials used, generated, treated, stored or
otherwise located on any of the Properties of the Company or any of the
Subsidiaries; provided, that such liability, loss, cost, damage or expense
will not include any liability, loss, cost, damage or expense which results
from any negligent act or omission of such Indemnitee. The foregoing
indemnification will survive repayment of the Notes.
6.18 RESTRICTIONS ON DIVIDENDS, ETC.
The Company will not permit any Restricted Subsidiary to create or
otherwise cause or suffer to exist or become effective any restriction (other
than statutory, regulatory or common law restrictions) on the right or power of
any Restricted Subsidiary to
(a) pay dividends or make any other distributions on such Restricted
Subsidiary's stock,
(b) pay any Debt owed by such Restricted Subsidiary to the Company or
any Restricted Subsidiary, or
(c) transfer any of its Property to the Company or any other
Restricted Subsidiary.
26 Note Purchase Agreement
6. COVENANTS
6.19 PENSION PLANS.
(A) COMPLIANCE. The Company will, and will cause each ERISA Affiliate
to, at all times with respect to each Pension Plan, comply with all
applicable provisions of ERISA and the IRC.
(B) PROHIBITED ACTIONS. The Company will not, and will not permit any
ERISA Affiliate to:
(i) engage in any "prohibited transaction" (as such term is
defined in section 406 of ERISA or section 4975 of the IRC) or
"reportable event" (as such term is defined in section 4043 of ERISA)
that could result in the imposition of a tax or penalty;
(ii) incur with respect to any Pension Plan any "accumulated
funding deficiency" (as such term is defined in section 302 of ERISA),
whether or not waived;
(iii) terminate any Pension Plan in a manner that could result
in the imposition of a Lien on the Property of the Company or any
Subsidiary pursuant to section 4068 of ERISA or the creation of any
liability under section 4062 of ERISA;
(iv) fail to make any payment required by section 515 of ERISA;
(v) incur any withdrawal liability under Title IV of ERISA with
respect to any Multiemployer Plan or any liability as a result of the
termination of any Multiemployer Plan; or
(vi) incur any liability or suffer the existence of any Lien on
the Property of the Company or any ERISA Affiliate, in either case
pursuant to Title I or Title IV of ERISA or pursuant to the penalty or
excise tax or security provisions of the IRC,
if the aggregate amount of the taxes, penalties, funding deficiencies,
interest, amounts secured by Liens, and other liabilities in respect of any
of the foregoing at any time could reasonably be expected to have a
Material Adverse Effect.
(C) FOREIGN PENSION PLANS. The Company will, and will cause each
Subsidiary to, at all times, comply in all material respects with all laws,
regulations and orders applicable to the establishment, operation,
administration and maintenance of all Foreign Pension Plans, and pay when
due all premiums, contributions and any other amounts required by
applicable Foreign Pension Plan documents or applicable laws, except where
the failure to comply with such laws, regulations and orders, and to make
such payments, in the aggregate for all such failures, could not be
reasonably expected to have a Material Adverse Effect.
27 Note Purchase Agreement
6. COVENANTS
6.20 PRIVATE OFFERING.
The Company will not, and will not permit any Person acting on its behalf
to, offer the Notes or any part thereof or any similar Securities for issue or
sale to, or solicit any offer to acquire any of the same from, any Person so as
to bring the issuance and sale of the Notes within the provisions of section 5
of the Securities Act.
7. INFORMATION AS TO COMPANY
7.1 FINANCIAL AND BUSINESS INFORMATION.
The Company shall deliver to each holder of Notes:
(A) QUARTERLY STATEMENTS -- as soon as practicable after the end of
each quarterly fiscal period in each fiscal year of the Company (other than
the last quarterly fiscal period of each such fiscal year), and in any
event within sixty (60) days thereafter,
(i) a consolidated balance sheet of the Company and its
consolidated subsidiaries as at the end of such quarter, and
(ii) consolidated statements of income, changes in shareholders'
equity and cash flows of the Company and its consolidated subsidiaries
for such quarter and (in the case of the second and third quarters)
for the portion of the fiscal year ending with such quarter,
setting forth in each case, in comparative form, the figures for the
corresponding periods in the previous fiscal year, all in reasonable
detail, prepared in accordance with GAAP applicable to quarterly financial
statements generally, and certified as complete and correct, subject to
changes resulting from year-end adjustments, by a Senior Financial Officer,
and accompanied by the certificate required by Section 7.2; provided, that
delivery of copies of the Company's Quarterly Report on Form 10-Q filed
with the Securities and Exchange Commission within the time period
specified above shall be deemed to satisfy the requirements of this Section
7.1(a) so long as such Quarterly Report contains or is accompanied by the
information specified in this Section 7.1(a);
(B) ANNUAL STATEMENTS -- as soon as practicable after the end of each
fiscal year of the Company, and in any event within one hundred twenty
(120) days thereafter, a consolidated balance sheet as at the end of such
fiscal year, and consolidated statements of income, changes in
shareholders' equity and cash flows, of the Company and its consolidated
subsidiaries, and the Company and the Restricted Subsidiaries for such
year, setting forth in the case of each consolidated financial statement,
in comparative form, the figures for the previous fiscal year, all in
reasonable detail, prepared in accordance with GAAP, and accompanied by
(i) a report of independent certified public accountants of
recognized national standing, which report shall, without
qualification (including, without limitation, qualifications related
to the scope of the audit or the ability of the Company or a
subsidiary thereof to continue as a going concern), state that such
financial statements of the Company and its consolidated subsidiaries
present
28 Note Purchase Agreement
7. INFORMATION AS TO COMPANY
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 report in the circumstances, and
(ii) the certificates required by Section 7.2 and Section 7.3,
provided, that the delivery of the Company's Annual Report on Form 10-K for
such fiscal year filed with the Securities and Exchange Commission within
the time period specified above shall be deemed to satisfy the requirements
of this Section 7.1(b) so long as such Annual Report contains or is
accompanied by the reports and other information otherwise specified in
this Section 7.1(b);
(C) SEC AND OTHER REPORTS -- promptly upon their becoming available,
(i) each financial statement, report, notice or proxy statement
sent by the Company or any Restricted Subsidiary to stockholders
generally,
(ii) each regular or periodic report (including, without
limitation, each Form 10-K, Form 10-Q and Form 8-K), any registration
statement which shall have become effective, and each final prospectus
and all amendments thereto filed by the Company or any Subsidiary with
the Securities and Exchange Commission (and any successor agency), and
(iii) all press releases and other statements made available by
the Company or any Restricted Subsidiary to the public concerning
material developments in the business of the Company or the Restricted
Subsidiaries;
(D) NOTICE OF DEFAULT OR EVENT OF DEFAULT -- within five (5) days of
becoming aware of the existence of any condition or event which constitutes
a Default or an Event of Default, a written notice specifying the nature
and period of existence thereof and what action the Company is taking or
proposes to take with respect thereto;
(E) NOTICE OF CLAIMED DEFAULT -- within five (5) days of becoming
aware that the holder of any Note, or of any Debt of the Company or any
Subsidiary, shall have given notice or taken any other action with respect
to a claimed Default, Event of Default or default or event of default, a
written notice specifying the notice given or action taken by such holder
and the nature of the claimed Default, Event of Default or default or event
of default and what action the Company is taking or proposes to take with
respect thereto;
(F) ERISA --
(i) within five (5) days of becoming aware of the occurrence of
any "reportable event" (as such term is defined in section 4043 of
ERISA) for which notice thereof has not been waived pursuant to
regulations of the Department of Labor, or "prohibited transaction"
(as such term is defined in section 406 of ERISA or section 4975 of
the IRC) in connection with any Pension Plan or any trust
29 Note Purchase Agreement
7. INFORMATION AS TO COMPANY
created thereunder, a written notice specifying the nature thereof,
what action the Company is taking or proposes to take with respect
thereto, and, when known, any action taken by the Internal Revenue
Service, the Department of Labor or the PBGC with respect thereto; and
(ii) prompt written notice of and, where applicable, a
description of
(A) any notice from the PBGC in respect of the commencement
of any proceedings pursuant to section 4042 of ERISA to terminate
any Pension Plan or for the appointment of a trustee to
administer any Pension Plan, and any distress termination notice
delivered to the PBGC under section 4041 of ERISA in respect of
any Pension Plan, and any determination of the PBGC in respect
thereof,
(B) the placement of any Multiemployer Plan in
reorganization status under Title IV of ERISA, any Multiemployer
Plan becoming "insolvent" (as such term is defined in section
4245 of ERISA) under Title IV of ERISA, or the whole or partial
withdrawal of the Company or any ERISA Affiliate from any
Multiemployer Plan and the withdrawal liability incurred in
connection therewith, or
(C) the occurrence of any event, transaction or condition
that could result in the incurrence of any liability of the
Company or any ERISA Affiliate or the imposition of a Lien on the
Property of the Company or any ERISA Affiliate, in either case
pursuant to Title I or Title IV of ERISA or pursuant to the
penalty or excise tax or security provisions of the IRC,
provided that the Company shall not be required to deliver any such notice
at any time when the aggregate amount of the actual or potential liability
of the Company and the Subsidiaries in respect of all such events could not
reasonably be expected to have a Material Adverse Effect;
(G) AUDITOR'S REPORTS -- promptly after the submission of a report of
accountants delivered in connection Section 7.1(b)(i) that is not
unqualified, and until a subsequent unqualified report is submitted in
connection Section 7.1(b)(i), each report submitted to the Company or any
Subsidiary by independent accountants in connection with any annual,
interim or special audit made of the books of the Company or any
Subsidiary;
(H) ACTIONS, PROCEEDINGS -- promptly after the commencement of any
action or proceeding relating to the Company or any Subsidiary in any court
or before any Governmental Authority or arbitration board or tribunal as to
which there is a reasonable possibility of an adverse determination and
that, if adversely determined, is (together will all other such actions and
proceedings) reasonably likely to have a Material Adverse Effect, a written
notice specifying the nature and period of existence thereof and what
action the Company is taking or proposes to take with respect thereto;
(I) OTHER CREDITORS -- promptly upon the request of any holder of
Notes, copies of any statement, report or certificate furnished to any
holder of Debt of the
30 Note Purchase Agreement
7. INFORMATION AS TO COMPANY
Company or any Subsidiary to the extent that the information contained in
such statement, report or certificate has not already been delivered to
each holder of Notes;
(J) RULE 144A -- promptly upon the request of any holder of Notes,
information required to comply with 17 C.F.R. (S)230.144A, as amended from
time to time; and
(K) REQUESTED INFORMATION -- with reasonable promptness, such other
data and information as from time to time may be requested by any holder of
Notes.
7.2 OFFICER'S CERTIFICATES.
Each set of financial statements delivered to each holder of Notes pursuant
to Section 7.1(a) or Section 7.1(b) shall be accompanied by a certificate of a
Senior Financial Officer, setting forth:
(A) COVENANT COMPLIANCE -- the information (including detailed
calculations) required in order to establish whether the Company was in
compliance with the requirements of Section 6.5 through Section 6.14,
inclusive, as of the end of the period covered by the financial 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 the signer has reviewed the
relevant terms hereof and has made, or caused to be made, under his or her
supervision, a review of the transactions and conditions of the Company and
its subsidiaries from the beginning of the accounting period covered by the
income statements being delivered therewith 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, specifying
the nature and period of existence thereof and what action the Company
shall have taken or proposes to take with respect thereto.
7.3 ACCOUNTANTS' CERTIFICATES.
Each set of annual financial statements delivered pursuant to Section
7.1(b) shall be accompanied by a certificate of the accountants who were engaged
to audit such financial statements, stating whether in making the examination
necessary for the audit of such financial statements, such accountants have
become aware of any condition or event that then constitutes a Default or an
Event of Default and, if such accountants are aware that any such condition or
event then exists, specifying the nature and period of existence thereof,
provided that with respect to conditions or events that may have a Material
Adverse Effect as provided in Section 6.17 and Section 6.19, such accountants
are relying on the reasonable judgment of management in making such
examinations.
7.4 INSPECTION.
The Company will permit the representatives of each holder of Notes to
visit and inspect any of the Properties of the Company or any of its
subsidiaries, to examine all their respective books of account, records, reports
and other papers, to make copies and extracts therefrom, and
31 Note Purchase Agreement
7. INFORMATION AS TO COMPANY
to discuss their respective affairs, finances and accounts with their respective
officers, employees and independent public accountants (and by this provision
the Company authorizes said accountants to discuss the finances and affairs of
the Company and its subsidiaries) all at such reasonable times and as often as
may be reasonably requested.
8. EVENTS OF DEFAULT
8.1 NATURE OF EVENTS.
An "EVENT OF DEFAULT" shall exist if any of the following occurs and is
continuing:
(A) PRINCIPAL OR MAKE-WHOLE AMOUNT PAYMENTS -- the Company shall fail
to make any payment of principal or Make-Whole Amount on any Note on or
before the date such payment is due;
(B) INTEREST PAYMENTS -- the Company shall fail to make any payment of
interest on any Note on or before three (3) Business Days after the date
such payment is due;
(C) PARTICULAR COVENANT DEFAULTS -- the Company shall fail to perform
or observe any covenant contained in Section 6.4 through Section 6.12,
inclusive, and Section 7.1(d) and Section 7.1(e);
(D) OTHER DEFAULTS -- the Company shall fail to comply with any other
provision hereof, and such failure continues for more than thirty (30) days
after such failure shall first become known to any Senior Officer;
(E) WARRANTIES OR REPRESENTATIONS -- any warranty, representation or
other statement by or on behalf of the Company contained herein or in any
instrument furnished in compliance herewith or in reference hereto shall
have been false or misleading in any material respect when made;
(F) DEFAULT ON DEBT --
(i) the Company or any Subsidiary shall fail to make any payment
on any Debt when due; or
(ii) any event shall occur or any condition shall exist in
respect of Debt of the Company or any Subsidiary, or under any
agreement securing or relating to such Debt that has not, in the case
of any individual event or condition, been permanently waived by the
holders of such Debt, that immediately or with any one or more of the
passage of time or the giving of notice:
(A) causes (or permits any one or more of the holders
thereof or a trustee therefor to cause) such Debt, or a portion
thereof, to become due prior to its stated maturity or prior to
its regularly scheduled date or dates of payment; or
32 Note Purchase Agreement
8. EVENTS OF DEFAULT
(B) permits any one or more of the holders thereof or a
trustee therefor to require the Company or any Subsidiary to
repurchase such Debt from the holders thereof;
provided that an Event of Default under this clause (f) shall not have
occurred unless at least one of such Debts has at such time an outstanding
principal balance of at least One Million Dollars ($1,000,000) or unless
the aggregate principal amount of all such Debts is at such time at least
Five Million Dollars ($5,000,000);
(G) INVOLUNTARY BANKRUPTCY PROCEEDINGS --
(i) a receiver, liquidator, custodian or trustee of the Company
or any Subsidiary, or of all or any substantial part of the Property
of either, is appointed by court order and such order remains in
effect for more than sixty (60) days; or an order for relief shall be
entered with respect to the Company or any Subsidiary, or the Company
or any Subsidiary is adjudicated a bankrupt or insolvent;
(ii) all or any substantial part of the Property of the Company
or any Subsidiary is sequestered by court order and such order shall
remain in effect for more than sixty (60) days; or
(iii) a petition is filed against the Company or any Subsidiary
under any bankruptcy, reorganization, arrangement, insolvency,
readjustment of debt, dissolution or liquidation law of any
jurisdiction, whether now or hereafter in effect, and is not be
dismissed within sixty (60) days after such filing;
(H) VOLUNTARY PETITIONS -- the Company or any Subsidiary files a
petition in voluntary bankruptcy or seeks relief under any provision of any
bankruptcy, reorganization, arrangement, insolvency, readjustment of debt,
dissolution or liquidation law of any jurisdiction, whether now or
hereafter in effect, or shall consent to the filing of any petition against
it under any such law;
(I) ASSIGNMENTS FOR BENEFIT OF CREDITORS, ETC. -- the Company or a
Subsidiary makes an assignment for the benefit of its creditors, or admits
in writing its inability, or fails, to pay its debts generally as they
become due, or consents to the appointment of a receiver, liquidator or
trustee of the Company or a Subsidiary or of all or a substantial part of
its Property; or
(J) UNSATISFIED JUDGMENTS -- one or more judgments, decrees or orders
for the payment of money in excess of Five Million Dollars ($5,000,000) in
the aggregate shall be rendered against the Company or any Subsidiary and
such judgments, decrees or orders shall continue unsatisfied and in effect
for a period of thirty (30) consecutive days without being vacated,
discharged, satisfied, or stayed or bonded pending appeal.
8.2 DEFAULT REMEDIES.
(A) ACCELERATION ON EVENT OF DEFAULT.
(i) If any Event of Default specified in Section 8.1(g), Section
8.1(h) or Section 8.1(i) shall exist, all of the Notes at the time
outstanding shall
33 Note Purchase Agreement
8. EVENTS OF DEFAULT
automatically become immediately due and payable together with
interest accrued thereon and, to the extent permitted by law, the
Make-Whole Amount at such time with respect to the principal amount of
such Notes, without presentment, demand, protest or notice of any
kind, all of which are hereby expressly waived, and,
(ii) If any Event of Default other than those specified in
Section 8.1(g), Section 8.1(h) and Section 8.1(i) shall exist, the
holder or holders of at least twenty-five percent (25%) in principal
amount of the Notes then outstanding (exclusive of Notes then owned by
any one or more of the Company, any Subsidiary or any Affiliate) may
exercise any right, power or remedy permitted to such holder or
holders by law, and shall have, in particular, without limiting the
generality of the foregoing, the right to declare the entire principal
of, and all interest accrued on, all the Notes then outstanding to be,
and such Notes shall thereupon become, forthwith due and payable,
without any presentment, demand, protest or other notice of any kind,
all of which are hereby expressly waived, and the Company shall
forthwith pay to the holder or holders of all the Notes then
outstanding the entire principal of, and interest accrued on, the
Notes and, to the extent permitted by law, the Make-Whole Amount at
such time with respect to such principal amount of such Notes.
(B) ACCELERATION ON PAYMENT DEFAULT. During the existence of an
Event of Default described in Section 8.1(a) or Section 8.1(b), and
irrespective of whether the Notes then outstanding shall have been declared
to be due and payable pursuant to Section 8.2(a)(ii), any holder of Notes
who or which shall have not consented to any waiver with respect to such
Event of Default may, at his or its option, by notice in writing to the
Company, declare the Notes then held by such holder to be, and such Notes
shall thereupon become, forthwith due and payable together with all
interest accrued thereon, without any presentment, demand, protest or other
notice of any kind, all of which are hereby expressly waived, and the
Company shall forthwith pay to such holder the entire principal of and
interest accrued on such Notes and, to the extent permitted by law, the
Make-Whole Amount at such time with respect to such principal amount of
such Notes.
(C) VALUABLE RIGHTS. The Company acknowledges, and the parties
hereto agree, that the right of each holder to maintain its investment in
the Notes free from repayment by the Company (except as herein specifically
provided for) is a valuable right 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.
(D) OTHER REMEDIES. During the existence of an Event of Default and
irrespective of whether the Notes then outstanding shall have been declared
to be due and payable pursuant to Section 8.2(a) or Section 8.2(b) and
irrespective of whether any holder of Notes then outstanding shall
otherwise have pursued or be pursuing any other rights or remedies, any
holder of Notes may proceed to protect and enforce its rights hereunder and
under such Notes by exercising such remedies as are available to such
holder in respect thereof under applicable law, either by suit in equity or
by action at law, or both, whether for specific performance of any
agreement contained herein or in aid of the exercise of any power granted
herein, provided that the maturity of such holder's Notes may be
accelerated only in accordance with Section 8.2(a) and Section 8.2(b).
34 Note Purchase Agreement
8. EVENTS OF DEFAULT
(e) NONWAIVER. No course of dealing on the part of any holder of
Notes nor any delay or failure on the part of any holder of Notes to
exercise any right shall operate as a waiver of such right or otherwise
prejudice such holder's rights, powers and remedies.
8.3 ANNULMENT OF ACCELERATION OF NOTES.
If a declaration is made pursuant to Section 8.2(a)(ii), then and in every
such case, the holders of at least sixty-six and two-thirds percent (66 2/3%) in
aggregate principal amount of the Notes then outstanding (exclusive of Notes
then owned by any one or more of the Company, any Subsidiaries and any
Affiliates) may, by written instrument filed with the Company, rescind and annul
such declaration, and the consequences thereof, provided that at the time such
declaration is annulled and rescinded:
(a) no judgment or decree shall have been entered for the payment of
any moneys due on or pursuant hereto or the Notes;
(b) all arrears of interest upon all the Notes and all other sums
payable hereunder and under the Notes (except any principal of, or interest
or Make-Whole Amount on, the Notes which shall have become due and payable
by reason of such declaration under Section 8.2(a)(ii)) shall have been
duly paid; and
(c) each and every other Default and Event of Default shall have been
waived pursuant to Section 10.5 or otherwise made good or cured;
and provided further that no such rescission and annulment shall extend to or
affect any subsequent Default or Event of Default or impair any right consequent
thereon.
9. INTERPRETATION OF THIS AGREEMENT
9.1 TERMS DEFINED.
As used herein, the following terms have the respective meanings set forth
below or set forth in the Section hereof following such term:
ACCEPTABLE ACQUISITION -- means any Acquisition that has been either
approved by the board of directors of the corporation which is the subject of
such Acquisition or recommended by such board to the shareholders of such
corporation. As used in this definition,
Acquisition -- means any transaction pursuant to which the Company or
any of the Restricted Subsidiaries
(a) acquires equity securities (or warrants, options or other
rights to acquire such securities) of any corporation other than the
Company or any corporation that is not then a Subsidiary, pursuant to
a solicitation of tenders therefor, or in one or more negotiated
block, market or other transactions not involving a tender offer, or a
combination of any of the foregoing,
(b) makes any corporation a Subsidiary, or causes any such
corporation to merge into the Company or any of the Subsidiaries, in
any case
35 Note Purchase Agreement
9. INTERPRETATION OF THIS AGREEMENT
pursuant to a merger, purchase of assets or any reorganization
providing for the delivery or issuance to the holders of such
corporation's then outstanding stock, in exchange for such securities,
of cash or securities of the Company, or any of the Subsidiaries or a
combination thereof, or
(c) purchases all or substantially all of the business or
Property of any corporation.
AFFILIATE -- means, at any time, a Person (other than a Wholly-Owned
Restricted Subsidiary)
(a) that directly or indirectly through one or more intermediaries
Controls, or is Controlled by, or is under common Control with, the
Company,
(b) that beneficially owns or holds five percent (5%) or more of any
class of the Voting Stock of the Company,
(c) five percent (5%) or more of the Voting Stock (or in the case of
a Person that is not a corporation, five percent (5%) or more of the equity
interest) of which is beneficially owned or held by the Company or a
Subsidiary, or
(d) that is an officer or director (or a member of the immediate
family of an officer or director) of the Company or any Subsidiary,
at such time. 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 provided that no Person shall be deemed to be in control of
another Person solely by virtue of the ownership of Notes.
AGREEMENT, THIS -- means this Note Purchase Agreement, as it may be
amended and restated from time to time.
ATTRIBUTABLE DEBT -- means, in respect of a Sale and Lease-Back
Transaction, at any time, the present value (discounted at the rate of interest
implicit in the terms of the lease involved in such Sale and Lease-Back
Transaction, as determined in good faith by the Company) of the obligation of
the lessee thereunder for rental payments (excluding, however, any amounts
required to be paid by such lessee, whether or not designated as rent or
additional rent, on account of maintenance and repairs, insurance, taxes,
assessments, water rates or similar charges or any amounts required to be paid
by such lessee thereunder contingent upon the amount of sales, maintenance and
repairs, insurance, taxes, assessments, water rates or similar charges) during
the remaining term of such lease (including any period for which such lease has
been extended or may, at the option of the lessor, be extended).
BASKET OBLIGATIONS -- Section 6.9(a)(xi).
BUSINESS DAY -- means a day other than a Saturday, a Sunday or, a day on
which the bank designated by the holder of a Note to receive for such holder's
account payments on such
36 Note Purchase Agreement
9. INTERPRETATION OF THIS AGREEMENT
Note is required by law (other than a general banking moratorium or holiday for
a period exceeding four (4) consecutive days) to be closed.
CAPITAL LEASE -- means, at any time, a lease with respect to which the
lessee is required to recognize, for accounting purposes, the acquisition of an
asset and the incurrence of a liability at such time.
CLOSING -- Section 1.2(b).
CLOSING DATE -- Section 1.2(b).
COMPANY -- has the meaning specified in the introductory sentence hereof.
CONSOLIDATED DEBT -- means, at any time, an amount equal to the aggregate
amount of Debt and Unfunded Pension Liabilities of the Company and the
Restricted Subsidiaries, determined on a consolidated basis at such time. As
used in this definition,
Unfunded Pension Liabilities -- means, at any time, with respect to
any Person, the amount (if any) by which the present value of all benefit
liabilities (within the meaning of section 4001(a)(16) of ERISA) under each
Pension Plan of such Person exceeds the Fair Market Value of all assets
allocable to such benefit liabilities, as determined on the then most
recent valuation date of each such Pension Plan in accordance with ERISA.
CONSOLIDATED EBIT -- means, with respect to any period, an amount equal to
(a) the amount of net income for the Company and its subsidiaries
determined on a consolidated basis for such period, plus
(b) Consolidated Interest Expense for such period, plus
(c) the aggregate amount of
(i) taxes measured by income,
(ii) the amount of income or loss attributable to items properly
reportable as extraordinary items, and
(iii) the amount of losses from discontinued operations,
incurred during such period by the Company and its subsidiaries (to the
extent but only to the extent each of such items was reflected in the
computation of such Consolidated Net Income), determined on a consolidated
basis in respect of such period.
CONSOLIDATED ENTITIES -- Section 9.2(b).
CONSOLIDATED INTEREST EXPENSE -- means, for any period, the amount of
interest expense (net of interest income) incurred by the Company and its
subsidiaries during such period, determined on a consolidated basis.
37 Note Purchase Agreement
9. INTERPRETATION OF THIS AGREEMENT
CONSOLIDATED NET INCOME -- means, for any period, the amount of net
earnings of the Company and the Restricted Subsidiaries, determined on a
consolidated basis in respect of such period.
CONSOLIDATED SHAREHOLDERS' EQUITY -- means, at any time, an amount equal to
shareholders' equity of the Company and the Restricted Subsidiaries, determined
on a consolidated basis at such time.
CONSOLIDATED TOTAL CAPITALIZATION -- means, at any time, Consolidated Debt
plus Consolidated Shareholders' Equity, determined at such time.
CREDIT AGREEMENT -- means that certain Amended and Restated Credit
Agreement, dated as of March 25, 1994, among Safety-Kleen Corp., the banks
signatory thereto, and The Chase Manhattan Bank, N.A.
DEBT -- with respect to any Person means, without duplication,
(a) its liabilities for borrowed money;
(b) all indebtedness of such Person for the deferred purchase price
of property or services (except trade payables paid within one hundred
twenty (120) days from the date the goods were delivered or the services
rendered);
(c) obligations of such Person in respect of bankers acceptances,
letters of credit or instruments serving a similar function issued or
accepted by banks and other financial institutions for the account of such
Person (whether or not representing obligations for borrowed money);
(d) any Guaranty of such Person of any obligation or liability of
another Person;
(e) any liabilities for borrowed money secured by any Lien existing
on Property owned by such Person (whether or not such liabilities have been
assumed); and
(f) any obligations in respect of any Capital Lease of such Person.
As used in this definition,
Guaranty -- means with respect to any Person (for the purposes of this
definition, the "Guarantor") 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 (the
"Primary Obligor") in any manner, whether directly or indirectly,
including, without limitation, obligations incurred through an agreement,
contingent or otherwise, by the Guarantor:
(a) to purchase such indebtedness or obligation or any Property
constituting security therefor;
(b) to advance or supply funds
38 Note Purchase Agreement
9. INTERPRETATION OF THIS AGREEMENT
(i) for the purchase or payment of such indebtedness,
dividend or obligation, or
(ii) to maintain working capital or other balance sheet
condition or any income statement condition of the Primary
Obligor or otherwise to advance or make available funds for the
purchase or payment of such indebtedness, dividend or obligation;
(c) to lease Property or to purchase securities or other Property
or services primarily for the purpose of assuring the owner of such
indebtedness or obligation of the ability of the Primary Obligor to
make payment of the indebtedness or obligation; or
(d) otherwise to assure the owner of the indebtedness or
obligation of the Primary Obligor against loss in respect thereof.
For purposes of computing the amount of any Guaranty, in connection with
any computation of indebtedness or other liability,
(i) in each case where the obligation that is the subject of such
Guaranty is in the nature of indebtedness for money borrowed it shall
be assumed that the amount of the Guaranty is the amount of the direct
obligation then outstanding, and
(ii) in each case where the obligation that is the subject of
such Guaranty is not in the nature of indebtedness for money borrowed
it shall be assumed that the amount of the Guaranty is the amount (if
any) of the direct obligation that is then due.
DECEMBER 28 LETTER -- means the separate letters from Cascade Capital
Corporation to the Purchasers dated December 28, 1994.
DEFAULT -- means an event or condition the occurrence of which would, with
the lapse of time or the giving of notice or both, become an Event of Default.
DESIGNATED EVENT -- shall be deemed to have occurred when any one or more
of the following has occurred:
(a) a "person" or "group" (within the meaning of section 13(d) and
section 14(d)(2) of the Exchange Act, other than a holding company created
as permitted by clause (c)(i) of this definition, becomes the "beneficial
owner" (as defined in Rule 13d-3 of the Exchange Act), directly or
indirectly, of more than
(i) twenty percent (20%) of the total voting power of all classes
of stock of the Company then outstanding that are normally entitled to
vote in elections of directors ("Company Voting Stock"), in each case
where such "person" is not, and such group contains at least one
"person" which is not, an "employee benefit plan" (as defined in
section 3(3) of ERISA) maintained by the Company or any Subsidiary, or
any trust or funding vehicle maintained thereunder (a "Company Plan");
or
39 Note Purchase Agreement
9. INTERPRETATION OF THIS AGREEMENT
(ii) thirty percent (30%) of the total voting power of all
Company Voting Stock, in each case where such "person" is, and each
person comprising such group is, a Company Plan;
(b) during any period of two (2) consecutive years, individuals who at
the beginning of such period constituted the Company's board of directors
(together with any new director whose election by the Company's board of
directors or whose nomination for election by the Company's stockholders
was approved by a vote of at least two-thirds (2/3) of the directors then
still in office who either were directors at the beginning of such period
or whose election or nomination for election was previously so approved)
cease for any reason to constitute a majority of the directors then in
office;
(c) the Company consolidates with or merges into another corporation
or conveys, transfers or leases all or substantially all of its assets to
any person, or any corporation consolidates with or merges into the
Company, in either event pursuant to a transaction in which Voting Stock of
the Company is changed into or exchanged for cash, securities or other
Property, provided that transactions involving solely
(i) the creation of a public holding company or the
reincorporation of the Company in another state, or
(ii) the exchange of Company Voting Stock as consideration for
the acquisition of another business or businesses, without change or
exchange of any shares of Company Voting Stock outstanding immediately
prior to such exchange,
shall be excluded from this clause (c);
(d) the Company, any Subsidiary or any Company Plan purchases or
otherwise acquires, directly or indirectly, beneficial ownership of Company
Voting Stock and, after giving effect to such purchase or acquisition, the
Company (together with the Subsidiaries and any such Company Plans) shall
have acquired, within any twelve (12) month period, a number of shares of
the Company's Voting Stock equal to twenty percent (20%) or more of the
number of shares of Company Voting Stock outstanding on the date
immediately prior to the first such purchase or acquisition during such
twelve (12) month period (as adjusted in such manner as the Company
reasonably deems appropriate to reflect any stock dividends or stock splits
during such period); or
(e) on any date (a "Calculation Date")
(i) (A) the Company makes any distribution or distributions of
cash, Property or securities (other than regular dividends and
distributions of capital stock, or rights to acquire capital
stock, of the Company) to holders of Company Voting Stock, or
(B) the Company, any Subsidiary or any Company Plan
purchases or otherwise acquires, directly or indirectly,
beneficial ownership of Company Voting Stock, and
(ii) the sum of the Fair Market Value (as determined in good
faith by the Company's board of directors, which determination shall
be conclusive) of
40 Note Purchase Agreement
9. INTERPRETATION OF THIS AGREEMENT
(A) such distribution or purchase, plus
(b) all other such distributions and purchases that have
occurred during the preceding twelve (12) month period,
is at least twenty percent (20%) of the Fair Market Value of the
outstanding Company Voting Stock (based on the closing sale price of
the Company Voting Stock as reported in The Wall Street Journal); such
percentage is to be calculated on each Calculation Date by determining
the percentage of the Fair Market Value of the outstanding Company
Voting Stock as of such Calculation Date which is represented by the
Fair Market Value of the distributions and purchases that have
occurred on such date and adding to that percentage all of the
percentages that have been similarly calculated on the Calculation
Dates of all such distributions and purchases during the preceding
twelve (12) month period.
ENVIRONMENTAL PROTECTION LAW -- means any law, statute or regulation
enacted by any jurisdiction in connection with or relating to the protection or
regulation of the environment, including, without limitation, those laws,
statutes and regulations regulating the disposal, removal, production, storing,
refining, handling, transferring, processing or transporting of hazardous or
toxic substances, and any orders, decrees or judgments issued by any court of
competent jurisdiction in connection with any of the foregoing.
ERISA -- means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
ERISA AFFILIATE -- means any corporation or trade or business that is a
member of the same controlled group of corporations as the Company, or is under
common control with the Company, in each case within the meaning of section
414(b) or section 414(c) of the IRC.
EVENT OF DEFAULT -- Section 8.1
EXCHANGE ACT -- means the Securities Exchange Act of 1934, as amended from
time to time.
FAIR MARKET VALUE -- means, with respect to any Property, the sale value of
such Property that would be realized in an arm's-length sale at such time
between an informed and willing buyer, and an informed and willing seller, under
no compulsion to buy or sell, respectively.
FOREIGN PENSION PLAN -- means any plan, fund or other similar program
(a) established or maintained outside of the United States of America
by any one or more of the Company or the Subsidiaries primarily for the
benefit of the employees (substantially all of whom are aliens not residing
in the United States of America) of the Company or such Subsidiaries, 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.
41 Note Purchase Agreement
9. INTERPRETATION OF THIS AGREEMENT
GAAP -- means accounting principles as promulgated from time to time in
statements, opinions and pronouncements by the American Institute of Certified
Public Accountants and the Financial Accounting Standards Board and in such
statements, opinions and pronouncements of such other entities with respect to
financial accounting of for-profit entities as shall be accepted by a
substantial segment of the accounting profession in the United States.
GOVERNMENTAL AUTHORITY -- means
(a) the government of
(i) the United States of America and any State or other political
subdivision thereof, or
(ii) any other jurisdiction in which the Company or any
Subsidiary conducts all or any part of its business, or that asserts
any jurisdiction over the conduct of the affairs of, or the Property
of the Company or any Subsidiary, and
(b) any entity exercising executive, legislative, judicial, regulatory
or administrative functions of, or pertaining to, any such government.
HAZARDOUS MATERIALS -- Section 2.13(a).
INDEMNITEES -- Section 6.17(d).
INVESTMENTS -- Section 6.11.
IRC -- means the Internal Revenue Code of 1986, together with all rules
and regulations promulgated pursuant thereto, as amended from time to time.
LIEN -- means any interest in Property securing an obligation owed to, or a
claim by, a Person other than the owner of the Property (for purposes of this
definition, the "Owner"), whether such interest is based on the common law,
statute or contract, and includes but is not limited to
(a) the security interest lien arising from a mortgage, encumbrance,
pledge, conditional sale or trust receipt or a lease, consignment or
bailment for security purposes, and the filing of any financing statement
under the Uniform Commercial Code of any jurisdiction, or an agreement to
give any of the foregoing,
(b) reservations, exceptions, encroachments, easements, rights-of-way,
covenants, conditions, restrictions, leases and other title exceptions and
encumbrances affecting real property,
(c) stockholder agreements, voting trust agreements, buy-back
agreements and all similar arrangements affecting the Owner's rights in
stock owned by the Owner, and
(d) any interest in any Property held by the Owner evidenced by a
conditional sale agreement, Capital Lease or other arrangement pursuant to
which title to such Property has been retained by or vested in some other
Person for security purposes.
42 Note Purchase Agreement
9. INTERPRETATION OF THIS AGREEMENT
The term "Lien" does not include negative pledge clauses in loan agreements and
equal and ratable security clauses in loan agreements that are substantially
similar to Section 6.9(b).
MAKE-WHOLE AMOUNT -- means, with respect to Prepaid Principal and the date
the prepayment thereof is due (the "Prepayment Date") the greater of
(a) zero (0), or
(b) an amount equal to the Present Value of the Prepaid Cash Flows
determined in respect of such Prepaid Principal as of such Prepayment Date
minus the amount of such Prepaid Principal.
As used in this definition,
Prepaid Principal -- means any portion of the principal amount of any
Debt being paid for any reason (including, without limitation,
acceleration, optional prepayment or mandatory prepayment required because
of the occurrence of a contingency) prior to its regularly scheduled
maturity date.
Present Value of the Prepaid Cash Flows -- means the sum of the
present values of the then remaining scheduled payments of principal and
interest that would have been payable in respect of such Prepaid Principal
but that are no longer payable as a result of the early prepayment of such
Prepaid Principal. In determining such present values,
(i) the amount of interest accrued through and including the day
immediately preceding such Prepayment Date on such Prepaid Principal
since the scheduled interest payment date immediately preceding such
Prepayment Date shall be deducted from the first of such payments of
interest, and
(ii) a discount rate equal to the Make-Whole Discount Rate
determined with respect to such Prepaid Principal and such Prepayment
Date divided by two (2), and a discount period of six (6) months of
thirty (30) days each, shall be used.
Make-Whole Discount Rate -- means fifty one-hundredths percent (0.50%)
per annum plus the per annum percentage rate (rounded to the nearest three
decimal (3) places) equal to the bond equivalent yield to maturity derived
from the Telerate Rate, or if the Telerate Rate is not then available, the
Applicable H.15 Rate determined as of the date that is two (2) Business
Days prior to such Prepayment Date.
Applicable H.15 -- means, at any time, the United States Federal
Reserve Statistical Release H.15(519) then most recently published and
available to the public, or if such publication is not available, then any
other source of current information in respect of interest rates on
securities of the United States of America that is generally available and,
in the judgment of the Required Holders, provides information reasonably
comparable to the H.15(519) report.
Applicable H.15 Rate -- means, at any time, the then most current
annual yield to maturity of the hypothetical United States Treasury
obligation listed in the Applicable H.15 with a Treasury Constant Maturity
(as such term is defined in such Applicable H.15) equal to the Weighted
Average Life to Maturity of such Prepaid Principal. If no such United
43 Note Purchase Agreement
9. INTERPRETATION OF THIS AGREEMENT
States Treasury obligation with a Treasury Constant Maturity corresponding
exactly to such Weighted Average Life to Maturity is listed, then the
yields for the two (2) then most current hypothetical United States
Treasury obligations with Treasury Constant Maturities most closely
corresponding to such Weighted Average Life to Maturity (one (1) with a
longer maturity and one (1) with a shorter maturity, if available) shall be
calculated pursuant to the immediately preceding sentence and the Make-
Whole Discount Rate shall be interpolated or extrapolated from such yields
on a straight-line basis.
Telerate Rate -- means the per annum yield reported on the Telerate
Service at 10:00 a.m. (New York time) on the second (2nd) Business Day
preceding such Prepayment Date for United States government securities
having a maturity (rounded to the nearest month) corresponding to the
Weighted Average Life to Maturity of such Prepaid Principal. Page 678
shall be used as the source of such yields, or if not then available, such
other screen available on the Telerate Service as shall, in the opinion of
the Required Holders, provide equivalent information.
Weighted Average Life to Maturity -- means the number of years
obtained by dividing the Remaining Dollar-Years of such Prepaid Principal
by such Prepaid Principal, determined as of such Prepayment Date.
Remaining Dollar-Years -- means the result obtained by
(a) multiplying, in the case of each then remaining scheduled
payment of principal that would have been payable in respect of
Prepaid Principal but is no longer payable as a result of the
prepayment of such Prepaid Principal,
(i) an amount equal to such scheduled payment of principal,
by
(ii) the number of years (calculated to the nearest one-
twelfth) that will elapse between such Prepayment Date and the
date such scheduled principal payment would be due if such
Prepaid Principal had not been so prepaid, and
(b) calculating the sum of each of the products obtained in the
preceding subsection (a).
MATERIAL ADVERSE EFFECT -- means a material adverse effect on
(a) the business operations, profits, financial condition, Properties
or business prospects of the Company and the Restricted Subsidiaries, in
the aggregate,
(b) the ability of the Company to perform its obligations set forth
herein and in the Notes, or
(c) the validity or enforceability of this Agreement or the Notes.
MULTIEMPLOYER PLAN -- means any "multiemployer plan" (as defined in section
3(37) of ERISA) in respect of which the Company or any ERISA Affiliate is an
"employer" (as such term is defined in section 3 of ERISA).
44 Note Purchase Agreement
9. INTERPRETATION OF THIS AGREEMENT
NOTE PURCHASE AGREEMENTS -- Section 1.2(c).
NOTES -- Section 1.1.
OFFER ACCEPTANCE DATE -- Section 4.4(c).
OTHER PURCHASER -- Section 1.2(c).
PBGC -- means the Pension Benefit Guaranty Corporation, and any Person
succeeding to the functions of the PBGC.
PENSION PLAN -- means, at any time, any "employee pension benefit plan"
(as such term is defined in section 3 of ERISA) maintained at such time by the
Company or any ERISA Affiliate for employees of the Company or such ERISA
Affiliate, excluding any Multiemployer Plan.
PERSON -- means an individual, partnership, corporation, trust,
unincorporated organization, or a government or agency or political subdivision
thereof.
PLACEMENT MATERIAL -- means:
(a) the December 28 Letter (excluding pages 5 through 13, inclusive,
thereof),
(b) the term sheet dated January 4, 1995,
(c) the Credit Agreement,
(d) certain selected excerpts from the Company's prospectus re its
9-1/4% Notes due September 15, 1999,
(e) the Company's Form 10-Q for the period ended September 10, 1994,
(f) the Company's Annual Report to shareholders for the fiscal year
January 1, 1994, and
(g) the Company's Form 10-K for the fiscal year ended January 1, 1994.
PREPAYMENT DATE -- Section 4.4(a).
PRINCIPAL PROPERTY -- means, at any time, any plant or facility located
within the United States of America, having a gross book value in excess of one
percent (1%) of Consolidated Net Tangible Assets at such time and owned by the
Company or a Restricted Subsidiary. As used in this definition,
Consolidated Net Tangible Assets -- means, at any time, an amount
equal to the total amount of assets (less applicable reserves) after
deducting therefrom
(a) the amount of all current liabilities, and
(b) the amount of all goodwill, trade names, trademarks, patents,
unamortized debt discount and expense and other like intangible
assets,
45 Note Purchase Agreement
9. INTERPRETATION OF THIS AGREEMENT
all as shown in the audited consolidated balance sheet of the Company
and its subsidiaries contained in the Company's then most recent
annual report to stockholders, except that assets shall include an
amount equal to the amount of Attributable Debt in respect of any Sale
and Lease-Back Transaction not capitalized on such balance sheet.
PROPERTY -- means any interest in any kind of property or asset, whether
real, personal or mixed, and whether tangible or intangible.
PURCHASERS -- means the Persons listed as purchasers of Notes on Annex 1.
RATING DECLINE -- shall be deemed to have occurred if a Designated Event
shall have occurred and if, at least in part because of such occurrence,
(a) any Rating Agency which shall have rated the Notes as Investment
Grade on the Rating Date (with respect to that particular Designated Event)
shall during its Evaluation Period (with respect to that particular
Designated Event) either reduce its rating of the Notes or withdraw its
rating of the Notes so that at the end of its Evaluation Period the Notes
either shall be rated by such Rating Agency as below Investment Grade or
shall not be rated by such Rating Agency, or
(b) any Rating Agency which shall have rated the Notes below
Investment Grade on such Rating Date shall at any time within its
Evaluation Period either reduce its rating of the Notes or withdraw its
rating of the Notes so that at the end of its Evaluation Period the Notes
either shall be rated by such Rating Agency at least one Full Rating
Category below its rating of the Notes on the Rating Date or shall not be
rated by such Rating Agency.
As used in this definition,
Evaluation Period -- means, with respect to any Rating Agency and any
particular Designated Event, the period beginning on the one hundred
twentieth (120th) day prior to the date of public notice of the occurrence
of that particular Designated Event and ending on the ninetieth (90th) day
subsequent to the date of such public notice, inclusive, provided that, if
during its Evaluation Period such Rating Agency shall publicly announce
that it has the Notes under consideration for possible downgrade, then its
Evaluation Period shall end at the later of
(a) the ninetieth (90) day after the date of public notice of the
occurrence of such Designated Event, or
(b) the time at which such Rating Agency shall announce
(i) a new rating for the Notes,
(ii) the withdrawal of its rating of the Notes, or
(iii) that it no longer has a downgrade of its rating of
the Notes under consideration.
Full Rating Category -- means
46 Note Purchase Agreement
9. INTERPRETATION OF THIS AGREEMENT
(i) with respect to S&P, any of the following categories: BB, B,
CCC, CC and C,
(ii) with respect to Moody's, any of the following categories:
Ba, B, Caa, Ca and C and
(iii) with respect to any other Rating Agency, the equivalent of
such category of S&P or Moody's used by such other Rating Agency.
In determining whether the rating of the Notes has decreased by the
equivalent of one Full Rating Category, gradation within Full Rating
Categories (+ and - for S&P; 1, 2, and 3 for Moody's; or the equivalent
graduation for another Rating Agency) shall be taken into account (e.g.,
with respect to S&P, a decline in a rating from BB+ to B+ will constitute
a decrease of one Full Rating Category, and a decline in a rating from BB+
to BB- or from BB to B+, will constitute a decrease of less than one Full
Rating Category).
Investment Grade -- means BBB- or higher by S&P or Baa3 or higher by
Moody's or the equivalent of such ratings by S&P or Moody's or by any other
Rating Agency.
Rating Agency -- means Standard & Poor's Ratings Group, a division of
McGraw-Hill, Inc. and its successors ("S&P"), and Moody's Investors
Service, Inc. and its successors ("Moody's"), or, if S&P or Moody's or both
shall not make a rating on the Notes publicly available, a nationally
recognized securities rating agency or agencies, as the case may be,
selected by the Company which shall be substituted for S&P or Moody's or
both, as the case may be.
Rating Date -- means, with respect to any particular Designated Event,
the date that is one hundred twenty-one (121) days prior to the date of
public notice of the occurrence of that particular Designated Event.
RELEASE -- Section 2.13(a)
REQUIRED HOLDERS -- means, at any time, the holders of at least sixty-six
and two-thirds percent (66 2/3%) in principal amount of the Notes at the time
outstanding (exclusive of Notes then owned by any one or more of the Company,
any Subsidiary or any Affiliate).
RESTRICTED SUBSIDIARY -- means, at any time, a Subsidiary with respect to
which each of the following requirements is met at such time:
(a) the Company owns, directly or indirectly, one hundred percent
(100%) (by number of votes) of each class of Voting Stock, and at least
eighty percent (80%) of all other classes of equity securities, at such
time;
(b) the Subsidiary is organized under the laws of the United States of
America, a jurisdiction thereof, Puerto Rico, Canada, or one of the member
states of the European Union;
(c) the Subsidiary is not primarily engaged in the business of
financing receivables, making loans or leasing real property; and
47 Note Purchase Agreement
9. INTERPRETATION OF THIS AGREEMENT
(d) the Subsidiary has applicable to it at such time a designation as
a "Restricted Subsidiary" in accordance with Section 6.14.
SALE AND LEASE-BACK BASKET AMOUNT -- means, at any time, an amount equal
to
(a) the aggregate amount of outstanding Attributable Debt determined
in respect of Sale and Lease-Back Transactions, minus
(b) (i) the aggregate amount of Attributable Debt outstanding in
respect of Sale and Lease-Back Transactions secured by Liens permitted
to exist pursuant to Section 6.9(a)(ix), plus
(ii) the aggregate amount of outstanding Attributable Debt
determined in respect of Sale and Lease-Back Transactions the proceeds
of which have been applied, or are to be applied as provided in, and
in compliance with, Section 6.10(c),
in each case determined at such time.
SALE AND LEASE-BACK TRANSACTION -- Section 6.10.
SECURITIES ACT -- means the Securities Act of 1933, as amended from time to
time.
SENIOR FINANCIAL OFFICER -- means any one of the chief financial officer,
the principal accounting officer and the treasurer of the Company.
SENIOR OFFICER -- means any one of the chairman of the board of directors,
the chief executive officer, the chief operating officer, and the president, of
the Company.
SUBSIDIARY -- means a corporation
(a) which qualifies as a subsidiary of the Company that is properly
included in a consolidated financial statement of the Company and its
subsidiaries in accordance with GAAP at such time, and
(b) of which the Company owns, directly or indirectly, more than fifty
percent (50%) (by number of votes) of each class of Voting Stock at such
time.
UNRESTRICTED SUBSIDIARY -- means, at any time, any Subsidiary other than a
Restricted Subsidiary, at such time.
VOTING STOCK -- means capital stock of any class or classes of a
corporation the holders of which are ordinarily, in the absence of
contingencies, entitled to vote in the election of corporate directors (or
Persons performing similar functions).
WHOLLY-OWNED RESTRICTED SUBSIDIARY -- means, at any time, a Restricted
Subsidiary all of the capital stock of which, and securities convertible into,
exchangeable for, or representing the right to purchase, such capital stock
(other than directors' qualifying shares) is owned at such time by any one or
more of the Company and the other Wholly-Owned Restricted Subsidiaries, free of
any Lien.
48 Note Purchase Agreement
9. INTERPRETATION OF THIS AGREEMENT
9.2 ACCOUNTING PRINCIPLES.
(A) GENERALLY. Unless otherwise provided herein, all financial
statements delivered in connection herewith will be prepared in accordance
with GAAP as in effect on the date of, or during the period covered by,
such financial statements. Where the character or amount of any asset or
liability or item of income or expense, or any consolidation or other
accounting computation is required to be made for any purpose hereunder, it
shall be done in accordance with GAAP as in effect on the date of, or at
the end of the period covered by, the financial statements from which such
asset, liability, item of income, or item of expense, is derived, or, in
the case of any such computation, as in effect on the date as of which such
computation is required to be determined, provided, that if any term
defined herein includes or excludes amounts, items or concepts that would
not be included in or excluded from such term if such term was defined with
reference solely to GAAP, such term will be deemed to include or exclude
such amounts, items or concepts as set forth herein.
(B) ACCOUNTING FOR SUBSIDIARIES. Whenever a calculation based on the
consolidated financial position or consolidated results of operations of
the Company and the Restricted Subsidiaries (the "CONSOLIDATED ENTITIES")
is required hereby
(i) Investments by the Consolidated Entities in any Person other
than a Restricted Subsidiary shall be carried at the lower of cost or
Fair Market Value, and
(ii) earnings of any Person other than a Restricted Subsidiary
not distributed in the form of cash distributions to a Consolidated
Entity shall not be included in any financial calculation of the
Consolidated Entities.
(C) CURRENCY. With respect to any determination, consolidation or
accounting computation required hereby, any amounts not denominated in the
currency in which this Agreement specifies shall be converted to such
currency in accordance with the requirements of GAAP (as such requirements
relate to such determination, consolidation or computation) and, if no such
requirements shall exist, converted to such currency in accordance with
normal banking procedures, at the closing rate as reported in the most
recent Wall Street Journal as of the date of such determination,
consolidation or computation or, if no such quotation shall then be
available, as quoted on such date by any bank or trust company reasonably
acceptable to the Required Holders.
9.3 DIRECTLY OR INDIRECTLY.
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, including
actions taken by or on behalf of any partnership in which such Person is a
general partner.
49 Note Purchase Agreement
9. INTERPRETATION OF THIS AGREEMENT
9.4 SECTION HEADINGS AND TABLE OF CONTENTS AND CONSTRUCTION.
(A) SECTION HEADINGS AND TABLE OF CONTENTS, ETC. The titles of the
Sections of this Agreement and the Table of Contents of this Agreement
appear as a matter of convenience only, do not constitute a part hereof and
shall not affect the construction hereof. The words "herein," "hereof,"
"hereunder" and "hereto" refer to this Agreement as a whole and not to any
particular Section or other subdivision. References to Sections are,
unless otherwise specified, references to Sections of this Agreement.
References to Annexes and Exhibits are, unless otherwise specified,
references to Exhibits and Annexes attached to this Agreement.
(B) CONSTRUCTION. Each covenant contained herein shall be construed
(absent an express contrary provision herein) as being independent of each
other covenant contained herein, and compliance with any one covenant shall
not (absent such an express contrary provision) be deemed to excuse
compliance with one or more other covenants.
9.5 GOVERNING LAW.
THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, INTERNAL NEW YORK LAW.
10. MISCELLANEOUS
10.1 COMMUNICATIONS.
(A) METHOD; ADDRESS. All communications hereunder or under the Notes
shall be in writing, shall be delivered by
(i) nationwide overnight courier, or
(ii) facsimile transmission (confirmed by delivery by nationwide
overnight courier sent on the day of the sending of such facsimile
transmission), and
shall be addressed, if to the Company, at the address set forth on Annex 2,
and if to any of the holders of the Notes,
(A) if such holder is a Purchaser, at the address set forth on
Annex 1 for such holder, and further including any parties referred to
on such Annex 1 which are required to receive notices in addition to
such holder, and
(B) if such holder is not a Purchaser, at the address set forth
in the register for the registration and transfer of Notes maintained
pursuant to Section 5.1 for such holder,
or to any such party at such other address as such party may designate by
notice duly given in accordance with this Section 10.1.
50 Note Purchase Agreement
10. MISCELLANEOUS
(B) WHEN GIVEN. Any communication addressed and delivered as herein
provided shall be deemed to be received when actually delivered to the
address of the addressee (whether or not delivery is accepted) or received
by the telecopy machine of the recipient. Any communication not so
addressed and delivered shall be ineffective.
10.2 REPRODUCTION OF DOCUMENTS.
This Agreement and all documents relating hereto, including, without
limitation,
(a) consents, waivers and modifications that may hereafter be
executed,
(b) documents received by you at the closing of your purchase of the
Notes (except the Notes themselves), and
(c) financial statements, certificates and other information
previously or hereafter furnished to you or any other holder of Notes,
may be reproduced by any holder of Notes by any photographic, photostatic,
microfilm, micro-card, miniature photographic, digital or other similar process
and each holder of Notes may destroy any original document so reproduced. The
Company agrees and stipulates that any such reproduction shall be admissible in
evidence as the original itself in any judicial or administrative proceeding
(whether or not the original is in existence and whether or not such
reproduction was made by such holder of Notes in the regular course of business)
and that any enlargement, facsimile or further reproduction of such reproduction
shall likewise be admissible in evidence. Nothing in this Section 10.2 shall
prohibit the Company or any holder of Notes from contesting the accuracy of any
such reproduction.
10.3 SURVIVAL.
All warranties, representations, certifications and covenants made by the
Company herein or in any certificate or other instrument delivered by it or on
its behalf hereunder at or prior to the Closing shall be considered to have been
relied upon by you and shall survive the delivery to you of the Notes regardless
of any investigation made by you or on your behalf. All statements in any
certificate or other instrument delivered by or on behalf of the Company
pursuant to the terms hereof shall constitute warranties and representations by
the Company hereunder. All payment obligations of the Company hereunder
(including, without limitation, reimbursement obligations in respect of costs,
expenses and fees of or incurred by the holders of the Notes) shall survive the
payment or prepayment of the Notes and the termination hereof.
10.4 SUCCESSORS AND ASSIGNS.
This Agreement shall inure to the benefit of and be binding upon the
successors and assigns of each of the parties hereto. The provisions hereof are
intended to be for the benefit of all holders, from time to time, of Notes, and
shall be enforceable by any such holder whether or not an express assignment of
rights has been executed by such holder, subject to Section 5.1.
51 Note Purchase Agreement
10. MISCELLANEOUS
10.5 AMENDMENT AND WAIVER.
(A) REQUIREMENTS. This Agreement may be amended, and the observance
of any term hereof may be waived, with (and only with) the written consent
of the Company and the Required Holders; provided that no such amendment or
waiver of any of the provisions of Section 1 through Section 3,
inclusive, or any defined term to the extent used therein, shall be
effective as to any holder of Notes unless consented to by such holder in
writing; and provided further that no such amendment or waiver shall,
without the written consent of the holders of all Notes (exclusive of Notes
held by the Company, any Subsidiary or any Affiliate) at the time
outstanding,
(i) change the amount or time of any prepayment or payment of
principal or Make-Whole Amount or the rate or time of payment of
interest,
(ii) amend or waive the provisions of Section 8.1(a), Section
8.1(b), Section 8.2 or Section 8.3 or any defined term to the extent
used therein,
(iii) amend or waive the definition of "Required Holders," or
(iv) amend or waive this Section 10.5 or any defined term to the
extent used herein.
(B) SOLICITATION OF NOTEHOLDERS.
(I) SOLICITATION. Each holder of the Notes (irrespective of the
amount of Notes then owned by it) shall be provided by the Company
with sufficient information to enable such holder to make an informed
decision with respect to any proposed waiver or amendment of any of
the provisions hereof or the Notes. Executed or true and correct
copies of any waiver or consent effected pursuant to the provisions of
this Section 10.5 shall be delivered by the Company to each holder of
outstanding Notes forthwith following the date on which the same shall
have been executed and delivered by all holders of outstanding Notes
required to consent or agree to such waiver or consent.
(II) PAYMENT. The Company shall not, directly or indirectly, pay
or cause to be paid any remuneration, whether by way of supplemental
or additional interest, fee or otherwise, or grant any security, to
any holder of Notes as consideration for or as an inducement to the
entering into by any holder of Notes of any waiver or amendment of any
of the provisions hereof or of the Notes unless such remuneration is
concurrently paid, or security is concurrently granted, on the same
terms, ratably to the holders of all Notes then outstanding.
(III) SCOPE OF CONSENT. Any amendment, waiver or consent made
pursuant to this Section 10.5 by a holder of Notes that has
transferred or has agreed to transfer its Notes to the Company, any
Subsidiary or any Affiliate and has provided or has agreed to provide
such amendment, waiver or consent as a condition to such transfer
shall be void and of no force and effect except solely as to such
holder, and any amendments effected or waivers or consents granted
that would not have been or would not be so effected or granted but
for such amendment, waiver or consent (and the amendments, waivers or
consents of all
52 Note Purchase Agreement
10. MISCELLANEOUS
other holders of Notes that were acquired under the same or similar
conditions) shall be void and of no force and effect, retroactive to
the date such amendment or waiver initially took or takes effect,
except solely as to such holder.
(C) BINDING EFFECT. Except as provided in Section 10.5(b)(iii), any
amendment or waiver consented to as provided in this Section 10.5 shall
apply equally to all holders of Notes and shall be binding upon them and
upon each future holder of any Note and upon the Company whether or not
such Note shall have been marked to indicate such amendment or waiver. No
such amendment or waiver shall extend to or affect any obligation,
covenant, agreement, Default or Event of Default not expressly amended or
waived or impair any right consequent thereon.
10.6 EXPENSES.
(a) The Company shall pay when billed the reasonable costs and
expenses (including reasonable attorneys' fees) incurred by the holders of
the Notes in connection with the consideration, negotiation, preparation or
execution of any amendments, waivers, consents, standstill agreements and
other similar agreements with respect hereto (whether or not any such
amendments, waivers, consents, standstill agreements or other similar
agreements are executed).
(b) At any time when the Company and the holders of Notes are
conducting restructuring or workout negotiations in respect hereof, or a
Default or Event of Default exists, the Company shall pay when billed the
reasonable costs and expenses (including reasonable attorneys' fees and the
fees of professional advisors) incurred by the holders of the Notes in
connection with inspections made pursuant to Section 7.4 and in connection
with the assessment, analysis or enforcement of any rights or remedies that
are or may be available to the holders of Notes.
(c) If the Company shall fail to pay when due any principal of, or
Make-Whole Amount or interest on, any Note, the Company shall pay to each
holder of Notes, to the extent permitted by law, such amounts as shall be
sufficient to cover the costs and expenses, including but not limited to
reasonable attorneys' fees, incurred by such holder in collecting any sums
due on such Notes.
10.7 PAYMENTS ON NOTES.
(A) MANNER OF PAYMENT. The Company shall pay all amounts payable
with respect to each Note (without any presentment of such Notes and
without any notation of such payment being made thereon) by crediting, by
federal funds bank wire transfer, the account of the holder thereof in any
bank in the United States of America as may be designated in writing by
such holder, or in such other manner as may be reasonably directed or to
such other address in the United States of America as may be reasonably
designated in writing by such holder. Annex 1 shall be deemed to
constitute notice, direction or designation (as appropriate) by each
Purchaser to the Company with respect to payments to be made to each
Purchaser as aforesaid. In the absence of such written direction, all
amounts payable with respect to each Note shall be paid by check mailed and
addressed to the registered holder of such Note at the address shown in the
register maintained by the Company pursuant to Section 5.1.
53 Note Purchase Agreement
10. MISCELLANEOUS
(B) PAYMENTS DUE ON HOLIDAYS. If any payment due on, or with respect
to, any Note shall fall due on a day other than a Business Day, then such
payment shall be made on the first Business Day following the day on which
such payment shall have so fallen due; provided that if all or any portion
of such payment shall consist of a payment of interest, for purposes of
calculating such interest, such payment shall be deemed to have been
originally due on such first following Business Day, such interest shall
accrue and be payable to (but not including) the actual date of payment,
and the amount of the next succeeding interest payment shall be adjusted
accordingly. If any payment is to be made on the first Business Day
following the day on which the same shall have fallen due, as provided in
this Section 10.7(b) and is not so paid on such first Business Day,
interest shall accrue thereon (to the extent permitted by applicable law)
at the rate of ten and five one-hundredths percent (10.05%) per annum, from
(in each case) the originally scheduled day of its payment.
(C) PAYMENTS, WHEN RECEIVED. Any payment to be made to the holders
of Notes hereunder or under the Notes shall be deemed to have been made on
the Business Day such payment actually becomes available at such holder's
bank prior to the close of business of such bank, provided that interest
for one day at the non-default interest rate of the Notes shall be due on
the amount of any such payment that actually becomes available to such
holder at such holder's bank after 12:00 noon (local time of such bank).
10.8 WAIVER OF JURY TRIAL, CONSENT TO JURISDICTION.
(A) WAIVER OF JURY TRIAL. YOU AND THE COMPANY HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT EITHER OF YOU MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS AGREEMENT, THE OTHER NOTE PURCHASE AGREEMENT OR THE
NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY. THE COMPANY HEREBY WARRANTS
AND REPRESENTS THAT NO REPRESENTATIVE OR AGENT OF YOU, OR COUNSEL TO YOU,
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT YOU WOULD NOT, IN THE EVENT
OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL
PROVISION. THE COMPANY ACKNOWLEDGES THAT YOU HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, INTER ALIA, THE PROVISIONS OF THIS SECTION 10.8.
(B) CONSENT TO JURISDICTION. THE COMPANY HEREBY IRREVOCABLY AND
UNCONDITIONALLY AGREES THAT ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT, THE OTHER NOTE PURCHASE AGREEMENT OR THE
NOTES, OR ANY ACTION OR PROCEEDING TO EXECUTE OR OTHERWISE ENFORCE ANY
JUDGMENT IN RESPECT OF ANY BREACH HEREUNDER, UNDER THE OTHER NOTE PURCHASE
AGREEMENT OR UNDER THE NOTES, BROUGHT BY ANY REGISTERED HOLDER OF A NOTE
AGAINST THE COMPANY OR ANY OF ITS PROPERTY, MAY BE BROUGHT BY SUCH HOLDER
OF A NOTE IN ANY FEDERAL DISTRICT COURT LOCATED IN NEW YORK CITY, NEW YORK
OR ANY NEW YORK STATE COURT SITTING IN NEW YORK CITY, NEW YORK, AS SUCH
REGISTERED HOLDER OF A NOTE MAY IN ITS SOLE DISCRETION ELECT, AND BY THE
EXECUTION AND DELIVERY OF THIS AGREEMENT, THE COMPANY IRREVOCABLY AND
UNCONDITIONALLY
54 Note Purchase Agreement
10. MISCELLANEOUS
SUBMITS TO THE NON-EXCLUSIVE IN PERSONAM JURISDICTION OF EACH SUCH COURT,
AND THE COMPANY IRREVOCABLY WAIVES AND AGREES NOT TO ASSERT IN ANY
PROCEEDING BEFORE ANY TRIBUNAL, BY WAY OF MOTION, AS A DEFENSE OR
OTHERWISE, ANY CLAIM THAT IT IS NOT SUBJECT TO THE IN PERSONAM JURISDICTION
OF ANY SUCH COURT. IN ADDITION, THE COMPANY HEREBY IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE IN ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER NOTE PURCHASE
AGREEMENT OR THE NOTES, BROUGHT IN ANY SUCH COURT, AND HEREBY IRREVOCABLY
WAIVES ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY
SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTHING HEREIN SHALL
IN ANY WAY BE DEEMED TO LIMIT THE ABILITY OF ANY REGISTERED HOLDER OF A
NOTE TO SERVE ANY SUCH WRITS, PROCESS OR SUMMONSES IN ANY MANNER PERMITTED
BY APPLICABLE LAW OR TO OBTAIN JURISDICTION OVER THE COMPANY IN SUCH OTHER
JURISDICTION, AND IN SUCH MANNER, AS MAY BE PERMITTED BY APPLICABLE LAW.
(C) SERVICE OF PROCESS. THE COMPANY HEREBY IRREVOCABLY AND
UNCONDITIONALLY AGREES THAT PROCESS SERVED EITHER PERSONALLY OR BY
REGISTERED MAIL AT ITS ADDRESS REFERRED TO IN SECTION 10.1 HEREOF SHALL
CONSTITUTE, TO THE EXTENT PERMITTED BY LAW, ADEQUATE SERVICE OF PROCESS IN
ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT, THE OTHER NOTE PURCHASE AGREEMENT OR THE NOTES, OR ANY ACTION OR
PROCEEDING TO EXECUTE OR OTHERWISE ENFORCE ANY JUDGMENT IN RESPECT OF ANY
BREACH HEREUNDER, UNDER THE OTHER NOTE PURCHASE AGREEMENT OR UNDER THE
NOTES, BROUGHT BY ANY REGISTERED HOLDER OF A NOTE AGAINST THE COMPANY OR
ANY OF ITS PROPERTY. RECEIPT OF PROCESS SO SERVED SHALL BE CONCLUSIVELY
PRESUMED AS EVIDENCED BY A DELIVERY RECEIPT FURNISHED BY THE UNITED STATES
POSTAL SERVICE OR ANY COMMERCIAL DELIVERY SERVICE. NOTHING HEREIN SHALL IN
ANY WAY BE DEEMED TO LIMIT THE ABILITY OF ANY REGISTERED HOLDER OF A NOTE
TO SERVE ANY WRITS, PROCESS OR SUMMONSES IN ANY MANNER PERMITTED BY
APPLICABLE LAW OR TO OBTAIN JURISDICTION OVER THE COMPANY IN SUCH OTHER
JURISDICTION, AND IN SUCH OTHER MANNER, AS MAY BE PERMITTED BY APPLICABLE
LAW.
10.9 ENTIRE AGREEMENT.
This Agreement constitutes the final written expression of all of the terms
hereof and is a complete and exclusive statement of those terms.
10.10 DUPLICATE ORIGINALS, EXECUTION IN COUNTERPART.
Two or more duplicate originals hereof may be signed by the parties, each
of which shall be an original but all of which together shall constitute one and
the same instrument. This Agreement may be executed in one or more counterparts
and shall be effective when at least
55 Note Purchase Agreement
10. MISCELLANEOUS
one counterpart shall have been executed by each party hereto, and each set of
counterparts that, collectively, show execution by each party hereto shall
constitute one duplicate original.
[Remainder of page intentionally blank. Next page is signature page.]
56 Note Purchase Agreement
If this Agreement is satisfactory to you, please so indicate by signing the
acceptance at the foot of a counterpart hereof and returning such counterpart to
the Company, whereupon this Agreement shall become binding between us in
accordance with its terms.
Very truly yours,
SAFETY-KLEEN CORP.
By /s/ SAFETY-KLEEN CORP.
-----------------------------
Accepted:
PRINCIPAL MUTUAL LIFE INSURANCE COMPANY
By /s/ PRINCIPAL MUTUAL LIFE INSURANCE COMPANY
-------------------------------------------------
[Signature page for the NOTE PURCHASE AGREEMENT of SAFETY-KLEEN CORP. in
connection with the issuance of its SENIOR NOTES DUE 1998]
If this Agreement is satisfactory to you, please so indicate by signing the
acceptance at the foot of a counterpart hereof and returning such counterpart to
the Company, whereupon this Agreement shall become binding between us in
accordance with its terms.
Very truly yours,
SAFETY-KLEEN CORP.
By /s/ SAFETY-KLEEN CORP.
----------------------------
Name:
Title:
Accepted:
PRINCIPAL MUTUAL LIFE INSURANCE COMPANY
By /s/ PRINCIPAL MUTUAL LIFE INSURANCE COMPANY
--------------------------------------------------
[Signature page for the NOTE PURCHASE AGREEMENT of SAFETY-KLEEN CORP. in
connection with the issuance of its SENIOR NOTES DUE 1998]
If this Agreement is satisfactory to you, please so indicate by signing the
acceptance at the foot of a counterpart hereof and returning such counterpart to
the Company, whereupon this Agreement shall become binding between us in
accordance with its terms.
Very truly yours,
SAFETY-KLEEN CORP.
By /s/ SAFETY-KLEEN CORP.
--------------------------------
Accepted:
PACIFIC CORINTHIAN LIFE INSURANCE
COMPANY
By /s/ PACIFIC CORINTHIAN LIFE INSURANCE COMPANY
--------------------------------------------------
[Signature page for the NOTE PURCHASE AGREEMENT of SAFETY-KLEEN CORP. in
connection with the issuance of its SENIOR NOTES DUE 1998]
If this Agreement is satisfactory to you, please so indicate by signing the
acceptance at the foot of a counterpart hereof and returning such counterpart to
the Company, whereupon this Agreement shall become binding between us in
accordance with its terms.
Very truly yours,
SAFETY-KLEEN CORP.
By /s/ SAFETY-KLEEN CORP.
-----------------------------------
Accepted:
PACIFIC CORINTHIAN LIFE INSURANCE COMPANY
By /s/ PACIFIC CORINTHIAN LIFE INSURANCE COMPANY
---------------------------------------------------
[Signature page for the NOTE PURCHASE AGREEMENT of SAFETY-KLEEN CORP. in
connection with the issuance of its SENIOR NOTES DUE 1998]
ANNEX 1
INFORMATION AS TO PURCHASER
Annex 1-1 Note Purchase Agreement
Annex 1-1
ANNEX 2
PAYMENT INSTRUCTIONS AT CLOSING; ADDRESS OF COMPANY FOR NOTICES
PAYMENT INSTRUCTIONS OF COMPANY AT CLOSING
Annex 2-1 Note Purchase Agreement
ANNEX 3
-------
2.2(a)
------
The financial statements provided you with the Placement Material are the latest
financial statements published. No additional financial statements are provided.
ANNEX 3
2.2(b)
SAFETY-KLEEN CORP. & SUBSIDIARIES
SCHEDULE OF DEBT
AS OF JANUARY 31, 1995*
CURRENT FINAL
OBLIGOR HOLDER AMOUNT PORTION MATURITY
------------------------------------------------------------------------------------
SK CORP. PUBLIC (SR. NOTES) $100,000,000 -- 09-15-99
SK CORP. BANK OF TOKYO $25,000,000 $25,000,000 02-09-95
SK CORP. CHASE MANHATTAN $4,000,000 $4,000,000 02-09-95
SK CORP. DAI-ICHI KANGYO $25,000,000 $25,000,000 02-27-95
SK CORP. MELLON BANK $23,000,000 $23,000,000 02-09-95
SK CORP. NBD BANK $15,000,000 $15,000,000 02-16-95
SK CORP. NBD BANK $4,000,000 $4,000,000 02-09-95
SK CORP. NORTHERN TRUST CO. $32,000,000 $32,000,000 02-09-95
SK CORP. NORTHERN TRUST CO. $8,000,000 $8,000,000 02-16-95
SK CORP. UNION BK OF SWITZ. $5,000,000 $5,000,000 02-27-95
SK CORP. PUBLIC (IRB's) $5,130,000 -- 12-01-09
SK DEUTSCH. DEUTSCHE BANK DM 70,000,000 DM 70,000,000 06-06-95 *
SK DEUTSCH. DEUTSCHE BANK DM 3,600,000 DM 3,600,000 01-31-95 *
ORM BERGOLD DEUTSCHE BANK DM 1,111,400 -- 1998 *
SK UK NBD LONDON (POUNDS) 1,500,000 (POUNDS) 1,500,000 01-03-95 *
* SUBSIDIARIES' DEBT IS SHOWN AS OF 12-31-94.
Annex 3
-------
2.2(c)
------
None
Annex 3
-------
2.3(a)(i)
---------
Subsidiaries of Company
-----------------------
Jurisdiction Percentage
of of
Name Incorporation Ownership
-----------------------------------------------------------------------
Do Acquisition Co. Delaware 100%
Nucer, Inc. Delaware 100%
Restricted Safety-Kleen Envirosystems Company California 100%
Safety-Kleen Envirosystems
of Puerto Rico Indiana 100%
Phillips Acquisition Corp. Delaware 100%
Phillips Manufacturing Co. Illinois 100%
Restricted Safety-Kleen Oil Recovery Co. Delaware 100%
Restricted Petrocon, Inc. Delaware 100%
Restricted Safety-Kleen Oil Services, Inc. Delaware 100%
Safety-Kleen Transportation Co. Delaware 100%
Safety-Kleen International, Inc. Delaware 100%
Dirt Magnet, Inc. Colorado 100%
The Midway Gas and Oil Co. Colorado 100%
Safety-Kleen Aviation, Inc. Delaware 100%
The Solvents Recovery Service
of New Jersey, Inc. New Jersey 100%
Restricted Safety-Kleen Canada, Inc. Canada 100%
Safety-Kleen Canada Division Canada 100%
Breslube Division Canada 100%
Translube, Inc. Canada 100%
Safety-Kleen Ireland Limited Ireland 100%
Safety-Kleen U.K. Limited United Kingdom 100%
Safety-Kleen Beteilingungs GmbH Germany 100%
Safety-Kleen GmbH Service,
Recycling, Umweltschutz Germany 100%
Orm Bergold Chemie GmbH
& Co. KG Germany 100%
Orm Chemie GmbH Germany 100%
Niemann Chemie GmbH Germany 100%
Safety-Kleen Grundbesitz GmbH Germany 100%
Safety-Kleen GmbH Germany 100%
Safety-Kleen Belgium, S.A. Belgium 100%
Safety-Kleen France, S.A. France 100%
Safety-Kleen Italia, S.p.A. Italy 100%
Annex 3
2.3(a)(ii)
List of Officers and Directors of Each Restricted Subsidiary
================================================================================================================================
Safety--Kleen Safety--Kleen
Safety--Kleen Envirosystems Oil Recovery Safety--Kleen Safety--Kleen
Names Corp. of Puerto Rico Co. Petrocon Oil Services Canada
================================================================================================================================
Donald W. Brinckman D,O D D,O
--------------------------------------------------------------------------------------------------------------------------------
John G. Johnson Jr. D,O
--------------------------------------------------------------------------------------------------------------------------------
Kenneth L. Block D
--------------------------------------------------------------------------------------------------------------------------------
Richard T. Farmer D
--------------------------------------------------------------------------------------------------------------------------------
Russell A. Gwillim D
--------------------------------------------------------------------------------------------------------------------------------
Edgar D. Jannotta D
--------------------------------------------------------------------------------------------------------------------------------
Karl G. Otzen D
--------------------------------------------------------------------------------------------------------------------------------
Paul D. Schrage D
--------------------------------------------------------------------------------------------------------------------------------
W. Gordon Wood D
--------------------------------------------------------------------------------------------------------------------------------
Marcia Williams D
--------------------------------------------------------------------------------------------------------------------------------
Hyman K. Bielsky O
--------------------------------------------------------------------------------------------------------------------------------
Robert J. Burian O
--------------------------------------------------------------------------------------------------------------------------------
Michael H. Carney O
--------------------------------------------------------------------------------------------------------------------------------
Glenn R. Casbourne O
--------------------------------------------------------------------------------------------------------------------------------
Joseph Chalhoub O D,O D,O D
--------------------------------------------------------------------------------------------------------------------------------
David A. Dattilo O
--------------------------------------------------------------------------------------------------------------------------------
Scott E. Fore O
--------------------------------------------------------------------------------------------------------------------------------
F. Henry Habicht O
--------------------------------------------------------------------------------------------------------------------------------
William P. Kasko O O O O
--------------------------------------------------------------------------------------------------------------------------------
Clark J. Rose O O
--------------------------------------------------------------------------------------------------------------------------------
Robert W. Wilmschen Jr. O D,O D,O D,O D,O D,O
--------------------------------------------------------------------------------------------------------------------------------
Laurence M. Rudnick O O
--------------------------------------------------------------------------------------------------------------------------------
C. James Schulz O
--------------------------------------------------------------------------------------------------------------------------------
Burton E. Ericson D D,O D
--------------------------------------------------------------------------------------------------------------------------------
Lonsdale S. Schofield O O D
--------------------------------------------------------------------------------------------------------------------------------
William Brigger O
--------------------------------------------------------------------------------------------------------------------------------
Maureen Potvin O O
--------------------------------------------------------------------------------------------------------------------------------
S. Janice McAuley D
--------------------------------------------------------------------------------------------------------------------------------
D -- Director
O -- Officer
ANNEX 3
-------
2.3(A)(III)
-----------
The following Persons own more than five percent (5%) of any class of capital
stock of the Company or any Subsidiary:
Fund Asset Management (Merrill Lynch)
Fidelity Management & Research Corp.
ANNEX 3
-------
2.3(B)
------
None
ANNEX 3
-------
2.5
---
1988 through 1989 have been audited, however, have not yet been closed.
1990 through 1993 remain open.
ANNEX 3
-------
2.10
----
Amended and Restated Credit Agreement dated as of March 25, 1994 among
Safety-Kleen Corp. the Banks signatory hereto and The Chase Manhattan Bank,
N.A., as Agent.
Annex 3
-------
2.12(a)
-------
ERISA Affiliates
----------------
Safety-Kleen Corp.
Do Acquisition Co.
Nucer, Inc.
Safety-Kleen Envirosystems Company
Safety-Kleen Envirosystems of Puerto Rico
Phillips Acquistion Corp.
Phillips Manufacturing Co.
Safety-Kleen Oil Recovery Co.
Petrocon, Inc.
Safety-Kleen Oil Services, Inc.
Safety-Kleen Transportation Co.
Safety-Kleen International, Inc.
Dirt Magnet, Inc.
The Midway Gas and Oil Co.
Safety-Kleen Aviation, Inc.
The Solvents Recovery Service
of New Jersey, Inc.
Employee Benefit Plans
----------------------
Safety-Kleen Corp. Salaried Employees Pension Plan
Safety-Kleen Corp. Hourly Employees Pension Plan
Safety-Kleen Corp. Sales Employees Pension Plan
Safety-Kleen Corp. Savings and Investment Plan
Principal Mutual or Pacific Mutual is not an investment manager of any of the
above employee benefit plans.
Annex 3
-------
2.12(d)
-------
None
Annex 3
-------
2.13
----
None
Annex 3
-------
2.17
---
A total of 20 (twenty) Institutional Investors, including you, were offered all
or a portion of the Notes at private sale for investment.
Annex 3
-------
6.9(a)
-----
The attached 3 (three) pages are from the most recent Dun & Bradstreet report
and to the best of our knowledge include all liens existing or property other
than operating lease property. The total amount of the obligations secured by
these liens is less than one million dollars.
DUNS: 05-106-0408 Business Information Report Page: 11
-------------------------------------------------------------------------------
A lienholder can file the same lien in more than one filing
location. The appearance of multiple liens filed by the
same lienholder against a debtor may be indicative of such
an occurrence.
-------------------------------------------------------------------------------
VOLUME/PAGE: 2811/980
AMOUNT: $35,230 STATUS: Released
TYPE: State Tax DATE STATUS ATTAINED: 11/14/1994
FILED BY: STATE OF TEXAS DATE FILED: 10/31/1994
AGAINST: SAFETY-KLEEN CORP LATEST INFO COLLECTED: 11/14/1994
WHERE FILED: EL PASO COUNTY RECORDERS OFFICE,
EL PASO, TX
-------------------------------------------------------------------------------
VOLUME/PAGE: 6213/1624
AMOUNT: $35,230 STATUS: Open
TYPE: State Tax DATE STATUS ATTAINED: 09/28/1994
FILED BY: STATE OF TEXAS DATE FILED: 09/28/1994
AGAINST: SAFETY-KLEEN CORP LATEST INFO RECEIVED: 11/08/1994
WHERE FILED: BEXAR COUNTY RECORDERS OFFICE,
SAN ANTONIO, TX
-------------------------------------------------------------------------------
VOLUME/PAGE: 2797/84
AMOUNT: $35,230 STATUS: Open
TYPE: State Tax DATE STATUS ATTAINED: 09/28/1994
FILED BY: STATE OF TEXAS DATE FILED: 09/28/1994
AGAINST: SAFETY-KLEEN CORP LATEST INFO COLLECTED: 10/31/1994
WHERE FILED: EL PASO COUNTY RECORDERS OFFICE,
EL PASO, TX
-------------------------------------------------------------------------------
BOOK/PAGE: 2700/1421
AMOUNT: $35,230 STATUS: Open
TYPE: State Tax DATE STATUS ATTAINED: 09/27/1994
FILED BY: STATE OF TEXAS DATE FILED: 09/27/1994
AGAINST: SAFETY-KLEEN CORPORATION LATEST INFO RECEIVED: 10/14/1994
WHERE FILED: FORT BEND COUNTY CLERK,
RICHMOND, TX
-------------------------------------------------------------------------------
FILING NO.: 410582
AMOUNT: $35,230 STATUS: Open
TYPE: State Tax DATE STATUS ATTAINED: 09/26/1994
FILED BY: STATE OF TEXAS DATE FILED: 09/26/1994
AGAINST: SAFETY-KLEEN CORPORATION LATEST INFO RECEIVED: 11/04/1994
WHERE FILED: HIDALGO COUNTY RECORDERS OFFICE,
EDINBURG, TX
-------------------------------------------------------------------------------
VOLUME/PAGE: 94185/4477
AMOUNT: $35,230 STATUS: Open
TYPE: State Tax DATE STATUS ATTAINED: 09/23/1994
FILED BY: STATE OF TEXAS DATE FILED: 09/23/1994
AGAINST: SAFETY-KLEEN CORP LATEST INFO COLLECTED: 10/14/1994
WHERE FILED: DALLAS COUNTY RECORDERS OFFICE,
DALLAS, TX
-------------------------------------------------------------------------------
BOOK/PAGE: 929/870
AMOUNT: $35,230 STATUS: Open
DUNS: 05-106-0408 Business Information Report Page: 12
TYPE: State Tax DATE STATUS ATTAINED: 09/20/1994
FILED BY: STATE OF TEXAS DATE FILED: 09/20/1994
AGAINST: SAFETY KLEEN CORPORATION LATEST INFO RECEIVED: 09/30/1994
WHERE FILED: NUBCES COUNTY RECORDERS OFFICE,
CORPUS CHRISTI, TX
--------------------------------------------------------------------------------
VOLUME/PAGE: 11731/438
AMOUNT: $35,230 Franchise STATUS: Open
TYPE: State Tax DATE STATUS ATTAINED: 09/19/1994
FILED BY: STATE OF TEXAS DATE FILED: 09/19/1994
AGAINST: SAFETY-KLEEN CORP LATEST INFO COLLECTED: 09/27/1994
WHERE FILED: TARRANT COUNTY RECORDERS OFFICE
FORT WORTH, TX
--------------------------------------------------------------------------------
VOLUME/PAGE: 46/219
AMOUNT: $35,230 STATUS: Open
TYPE: State Tax DATE STATUS ATTAINED: 09/19/1994
FILED BY: STATE OF TEXAS DATE FILED: 09/19/1994
AGAINST: SAFETY-KLEEN CORP LATEST INFO COLLECTED: 10/03/1994
WHERE FILED: LUBBOCK COUNTY RECORDERS OFFICE
LUBBOCK, TX
--------------------------------------------------------------------------------
FILING NO.: 50104/1447
AMOUNT: $35,230 STATUS: Open
TYPE: State Tax DATE STATUS ATTAINED: 09/19/1994
FILED BY: STATE OF TEXAS DATE FILED: 09/19/1994
AGAINST: SAFETY-KLEEN CORPORATION LATEST INFO RECEIVED: 10/14/1994
WHERE FILED: HARRIS COUNTY RECORDERS OFFICE,
HOUSTON, TX
--------------------------------------------------------------------------------
* * * UCC FILING(S) * * *
--------------------------------------------------------------------------------
COLLATERAL: Specified Assets including proceeds and products - Specified
Contract rights including proceeds and products - Specified Chattel
paper including proceeds and products - Specified Equipment
including proceeds and products - Specified Transportation equipment
including proceeds and products
OPERATING LEASE
--------------------------------------------------------------------------------
COLLATERAL: Specified Consigned merchandise
FILING NO: 3138142 DATE FILED: 06/28/1993
TYPE: Original LATEST INFO RECEIVED: 07/15/1993
SEC. PARTY: HOME JUICE CO, MELROSE PARK, IL FILED WITH: SECRETARY OF
DEBTOR: SAFETY KLEEN, ELGIN, IL STATE/UCC DIVISION,
IL
--------------------------------------------------------------------------------
COLLATERAL: Specified Computer equipment including proceeds and products
FILING NO: 003222101 DATE FILED: 02/14/1994
TYPE: Original LATEST INFO RECEIVED: 02/21/1994
SEC. PARTY: LINC QUANTUM ANALYTICS INC., FILED WITH: SECRETARY OF
FOSTER CITY, CA STATE/UCC DIVISION,
DEBTOR: SAFETY KLEEN CORP., ELK GROVE IL
DUNS: 05-106-0408 Business Information Report Page: 13
-------------------------------------------------------------------------------
VILLAGE, IL
-------------------------------------------------------------------------------
COLLATERAL: Specified Equipment including proceeds and products
FILING NO: 003222100 DATE FILED: 02/14/1994
TYPE: Original LATEST INFO RECEIVED: 02/21/1994
SEC. PARTY: LINC QUANTUM ANALYTICS INC., FILED WITH: SECRETARY OF
FOSTER CITY, CA STATE/UCC DIVISION,
DEBTOR: SAFETY KLEEN CORP., ELK GROVE IL
VILLAGE, IL
--------------------------------------------------------------------------------
COLLATERAL: Specified Industrial equipment/machinery including proceeds and
products
FILING NO: 1391468 DATE FILED: 11/15/1993
TYPE: Original LATEST INFO RECEIVED: 01/31/1994
SEC. PARTY: TOYOTA MOTOR CREDIT CORP FILED WITH: SECRETARY OF
TORRANCE, CA STATE/UCC DIVISION,
DEBTOR: SAFETY KLEEN CORP WI
--------------------------------------------------------------------------------
COLLATERAL: Specified Industrial equipment/machinery including proceeds and
products
FILING NO: 1385063 DATE FILED: 10/13/1993
TYPE: Original LATEST INFO RECEIVED: 11/11/1993
SEC. PARTY: TOYOTA MOTOR CREDIT CORP, FILED WITH: SECRETARY OF
TORRANCE, CA STATE/UCC DIVISION,
DEBTOR: SAFETY KLEEN CORP WI
-------------------------------------------------------------------------------
COLLATERAL: Specified Industrial equipment/machinery including proceeds and
products
FILING NO: 003170297 DATE FILED: 09/23/1993
TYPE: Original LATEST INFO RECEIVED: 09/27/1993
SEC. PARTY: CLARKLIFT OF WASHINGTON/ALASKA FILED WITH: SECRETARY OF
INC, SEATTLE, WA STATE/UCC DIVISION,
DEBTOR: SAFETY KLEEN, ELGIN, IL IL
--------------------------------------------------------------------------------
COLLATERAL: Specified Industrial equipment/machinery including proceeds and
products
FILING NO: 93-256-0520 DATE FILED: 09/13/1993
TYPE: Original LATEST INFO RECEIVED: 09/27/1993
SEC. PARTY: CLARKLIFT OF WASHINGTON/ALASKA FILED WITH: SECRETARY OF
INC, SEATTLE, WA STATE/UCC DIVISION,
DEBTOR: SAFETY KLEEN, LYNNWOOD, WA WA
--------------------------------------------------------------------------------
COLLATERAL: Specified Industrial equipment/machinery and proceeds
FILING NO: 3150185 DATE FILED: 07/30/1993
TYPE: Original LATEST INFO RECEIVED: 08/25/1993
SEC. PARTY: CATERPILLAR FINANCIAL SERVICES FILED WITH: SECRETARY OF
CORPORATION, MARIETTA, GA STATE/UCC DIVISION,
DEBTOR: SAFETY KLEEN CORP, ELGIN, IL IL
--------------------------------------------------------------------------------
COLLATERAL: Specified Computer equipment and proceeds
FILING NO: 92-01802 DATE FILED: 05/18/1992
TYPE: Original LATEST INFO RECEIVED: 06/19/1992
SEC. PARTY: COLUMBUS COMMERCIAL INC DBA THE FILED WITH: MUSCOGEE COUNTY
MCDOUGAL CO, COLUMBUS, GA SUPERIOR COURT CLERKS
DEBTOR: JEFF W HOLLADAY / SAFETY KLEEN, OFFICE, GA
COLUMBUS, GA
EXHIBIT A
FORM OF NOTE
SAFETY-KLEEN CORP.
8.05% SENIOR NOTE DUE JANUARY 30, 1998
No. R-__ PPN: 786484 A@ 4
$________ ________ __, ____
SAFETY-KLEEN CORP. (the "Company"), a Wisconsin corporation, for value
received, hereby promises to pay to ______ or registered assigns the principal
sum of ______ DOLLARS ($______) on January 30, 1998 and to pay interest
(computed on the basis of a 360-day year of twelve 30-day months) on the unpaid
principal balance hereof from the date of this Note at the rate of eight and
five one-hundredths percent (8.05%) per annum, semi-annually on January 30 and
July 30 in each year, commencing on the later of July 30, 1995 or the payment
date next succeeding the date hereof, until the principal amount hereof shall
become due and payable; and to pay on demand interest on any overdue principal
(including any overdue prepayment of principal) and Make-Whole Amount, if any,
and (to the extent permitted by applicable law) on any overdue installment of
interest (the due date of such payments to be determined without giving effect
to any grace period), at a rate per annum equal to the lesser of (a) the highest
rate allowed by applicable law or (b) the greater of (i) ten and five one-
hundredths percent (10.05%), or (ii) the rate of interest publicly announced by
Morgan Guaranty Trust Company in New York City from time to time as its prime
rate.
Payments of principal, Make-Whole Amount, if any, and interest shall
be made in such coin or currency of the United States of America as at the time
of payment is legal tender for the payment of public and private debts to the
registered holder hereof at the address shown in the register maintained by the
Company for such purpose, in the manner provided in the Note Purchase Agreement
(defined below).
This Note is one of an issue of Notes of the Company issued in an
aggregate principal amount limited to Fifty Million Dollars ($50,000,000)
pursuant to the Company's separate Note Purchase Agreements (collectively, as
amended from time to time, the "Note Purchase Agreement"), each dated as of
January 15, 1995, with the purchasers listed on Annex 1 thereto, is entitled to
the benefits thereof, and the terms of which are incorporated herein by
reference. Capitalized terms used herein and not defined herein have the
meanings specified in the Note Purchase Agreement. As provided in the Note
Purchase Agreement, under certain circumstances, all or a portion of the
principal of this Note may become due and payable prior to the stated maturity
hereof, and a Make-Whole Amount may be due in connection therewith.
This Note is a registered Note and is transferable only by surrender
hereof at the principal office of the Company as specified in the Note Purchase
Agreement, duly endorsed or accompanied by a written instrument of transfer duly
executed by the registered holder of this Note or his attorney duly authorized
in writing.
Under certain circumstances, as specified in the Note Purchase
Agreement, the principal of this Note (together with any applicable Make-Whole
Amount) may be declared due and payable in the manner and with the effect
provided in the Note Purchase Agreement.
EXHIBIT A-1 Form of Note
THIS NOTE AND THE NOTE PURCHASE AGREEMENT ARE GOVERNED BY, AND SHALL
BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAW OF NEW YORK.
SAFETY-KLEEN CORP.
By:____________________________________
Name:
Title:
By:____________________________________
Name:
Title:
EXHIBIT A-2 Form of Note
EXHIBIT B1
FORM OF COMPANY'S COUNSEL OPINION
[SK LETTERHEAD]
[Closing Date]
To the Persons Listed on
Annex I hereto
Re: Safety-Kleen Corp. (the "Company")
Ladies and Gentlemen:
Reference is made to the separate Note Purchase Agreements dated as of
January 15, 1995 (collectively, the "Note Purchase Agreement"), between the
Company and each of the purchasers listed on Annex 1 attached thereto (the
"Purchasers"), which provide, among other things, for the issuance and sale by
the Company of its 8.05% Senior Notes due January 30, 1998 in the aggregate
principal amount of Fifty Million Dollars ($50,000,000). The capitalized terms
used herein and not defined herein have the meanings specified by the Note
Purchase Agreement.
I have acted as counsel to the Company in connection with the transactions
contemplated by the Note Purchase Agreement. In acting as such counsel, I have
examined.
(a) the Note Purchase Agreement;
(b) the Company's 8.05% Senior Notes due January 30, 1998 dated the
date hereof, in the form of Exhibit A to the Note Purchase Agreement and in
the principal amounts and with the registration numbers set forth on Annex
1 to the Note Purchase Agreement (the "Notes");
(c) the documents executed and delivered by the Company in connection
with the transactions contemplated by the Note Purchase Agreement;
(d) the bylaws and minute books of the Company and a certified copy of
the articles of incorporation of the Company, as in effect on the date
hereof;
(e) a long-form good standing certificate from the state of
incorporation of the Company, good standing certificates from the
states/provinces of incorporation of each Restricted Subsidiary, and
foreign good standing certificates for each of such corporations from each
state where the Company or such Restricted Subsidiary is required to be in
good standing;
EXHIBIT B1-1 Form of Company Counsel's Opinion
(f) a letter to Hebb & Gitlin from Cascade Capital Corporation dated
the date hereof, making certain representations with respect to the manner
in which the Notes were offered (the "Offeree Letter"); and
(g) originals, or copies certified or otherwise identified to my
satisfaction, of such other documents, records, instruments and
certificates of public officials as I have deemed necessary or appropriate
to enable me to render this opinion.
In rendering this opinion, I have assumed that all signatures are genuine
(other than officers of the Company), that all documents submitted to me as
originals are genuine, that all copies submitted to me conform to the originals,
that all natural Persons have legal capacity, and as to documents executed by or
on behalf of Persons other than the Company.
(i) that each such Person executing documents had the power to enter
into and perform its obligations under such documents, and
(ii) that such documents have been duly authorized, executed and
delivered by, and are binding upon and enforceable against, such Persons.
In rendering this opinion, I have relied, to the extent I deem necessary
and proper, on:
(A) warranties and representations as to factual matters contained in
the Note Purchase Agreement; and
(B) the Offeree Letter.
I have no actual knowledge of any material inaccuracies in any of the facts
contained in the documents listed in Item (A) or (B).
My opinion is based upon the laws of Wisconsin (with respect to corporate
law), Illinois, and federal law. If the Note Purchase Agreement and the Notes
were governed by the laws of Illinois, my opinion would not vary materially from
that set forth below.
Based on the foregoing, I am of the following opinions:
1. Each of the Company and each Restricted Subsidiary is a corporation
duly incorporated, validly existing and in good standing under the laws of its
state of incorporation and has all requisite corporate power and authority to
carry on its business and own its Property.
2. Each of the Company and each Restricted Subsidiary has duly qualified
and is in good standing as a foreign corporation in each jurisdiction where the
character of its Properties or the nature of its activities makes such
qualification necessary, except where the failure to so qualify and be in good
standing would not have a Material Adverse Effect.
3. To the best of my knowledge, all consents, approvals and
authorizations of, and all designations, declarations, filings, registrations,
qualifications, or recordations with, Governmental Authorities required on the
part of each of the Company and each Restricted Subsidiary have been obtained in
connection with the ownership of its Properties and the conduct of its
businesses, except where the failure to obtain any such consent, approval or
EXHIBIT B1-2 Form of Company Counsel's Opinion
authorization with respect to such ownership and conduct would not have a
Material Adverse Effect.
4. There is no default or existing condition which with the passage of
time or notice, or both would result in a default by the Company or any
Restricted Subsidiary under any contract, lease or commitment known to me to
which any one or more of the Company or any Restricted Subsidiary is a party or
by which their respective Properties may be bound, except where such default
would not have a Material Adverse Effect.
5. To the best of my knowledge, there is no judgment, order, action,
suit, proceeding, inquiry, order or investigation, at law or in equity, before
any court or Governmental Authority, arbitration board or tribunal, pending or
threatened against the Company or any one or more of the Restricted
Subsidiaries, except for any such judgment, order, action, suit, proceeding,
inquiry, order or investigation that would not have a Material Adverse Effect.
6. The Company has the requisite corporate power and authority to execute
and deliver the Note Purchase Agreement, to issue and sell the Notes, and to
perform its obligations set forth in each of the Note Purchase Agreement and the
Notes.
7. Each of the Note Purchase Agreement and the Notes has been duly
authorized by all necessary corporate action on the part of the Company (no
action on the part of the stockholders of the Company being required in respect
thereof), has been executed and delivered by duly authorized officers of the
Company, and constitutes a legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms.
8. The execution and delivery of the Note Purchase Agreement and the
Notes, and the issue and sale of the Notes, by the Company and the performance
by the Company of its obligations thereunder will not conflict with, constitute
a violation of, result in a breach of any provision of, constitute a default
under, or result in the creation or imposition of any Lien or encumbrance upon
any of its Property or the Property of a Restricted Subsidiary pursuant to the
articles of incorporation or bylaws of the Company or such Restricted
Subsidiary, any applicable statute, rule or regulation to which the Company or
any Restricted Subsidiary is subject, any agreement or instrument in respect of
borrowed money to which the Company or such Restricted Subsidiary is a party or
by which its respective Properties may be bound, or, to the best of my
knowledge, any other agreement or instrument to which the Company or such
Restricted Subsidiary is a party or by which its respective Properties may be
bound.
9. All consents, approvals and authorizations of, and all designations,
declarations, filings, registrations, qualifications and recordations with,
Governmental Authorities required on the part of the Company and the
Subsidiaries have been obtained in connection with the execution and delivery of
each of the Note Purchase Agreement and the Notes, the issue and sale of the
Notes, the use of the proceeds thereof, and the performance by the Company of
its obligations thereunder.
10. Under existing law, the Notes are not required to be registered under
the Securities Act of 1933, as amended, and the Company is not required to
qualify an indenture with respect thereto under the Trust Indenture Act of 1939,
as amended.
EXHIBIT B1-3 Form of Company Counsel's Opinion
11. Neither the issuance of the Notes nor the intended use of the proceeds
of the Notes (as set forth in Section 2.18 of the Note Purchase Agreement) will
violate Regulations G, T or X of the Federal Reserve Board.
12. The Company
(a) is not an "investment company" within the meaning of the
Investment Company Act of 1940, as amended, and
(b) is not a "holding company" or an "affiliate" of a "holding
company," or a "subsidiary company" of a "holding company," or a "public
utility" within the meaning of the Public Utility Holding Company Act of
1935, as amended.
13. The Company has good title to all of the shares it purports to own of
the capital stock of each Restricted Subsidiary, free and clear in each case of
any perfected security interest, and to the best of my knowledge, any other
Lien.
All opinions herein contained with respect to the enforceability of
documents and instruments are qualified to the extent that:
(a) the availability of equitable remedies, including without
limitation, specific enforcement and injunctive relief, is subject to the
discretion of the court before which any proceedings therefor may be
brought; and
(b) the enforceability of certain terms provided in the Note Purchase
Agreement and the Notes may be limited by
(i) applicable bankruptcy, reorganization, arrangement,
insolvency, moratorium, fraudulent conveyance or similar laws
affecting the enforcement of creditors' rights generally as at the
time in effect,
(ii) general principles of equity and the discretion of a court
in granting equitable remedies (whether enforceability is considered
in a proceeding at law or in equity).
This opinion is delivered to you pursuant to Section 3.1 of the Note
Purchase Agreement. The qualification of any opinion or statement herein by use
of the words "to the best of my knowledge" means that no information has come to
my attention which gives me actual knowledge that the matters, actions,
proceedings, items, documents or facts so qualified are not so as stated.
However, I have not undertaken any independent investigation or inquiry to
determine the existence or absence of such matters, actions, proceedings, items,
documents or facts. I am qualified to practice law in the State of Illinois,
and I do not purport to be an expert on, or to express any opinion concerning,
any laws except the internal laws (without regard to choice of law rules) of the
State of Illinois and the federal law of the United States of America; however,
I am generally familiar with the corporation law of the State of Wisconsin and,
for the limited purpose of my opinions contained herein and limited solely to
Wisconsin corporation law, did not deem it necessary to obtain the opinion of
Wisconsin counsel. My opinions express herein are limited to the effect of such
laws in effect on the date hereof, and no responsibility or undertaking is
hereby assumed to advise you of any subsequent changes in such laws or of the
EXHIBIT B1-4 Form of Company Counsel's Opinion
applicability or effect of the laws of any other jurisdiction. Subsequent
holders of the Notes may rely on this opinion as if it were addressed to them.
Hebb & Gitlin may rely on this opinion for the sole purpose of rendering their
opinion to be rendered pursuant to Section 3.1 of the note Purchase Agreement.
Very truly yours,
Hyman K. Bielsky
Senior Vice President
General Counsel
EXHIBIT B1-5 Form of Company Counsel's Opinion
ANNEX 1
ADDRESSEES
Pacific Corinthian Life Insurance Company
Attention: Securities Administration
P.O. Box 9000
Newport Beach, California 92658-9000
Principal Mutual Life Insurance Company
711 High Street
Des Moines, IA 50392-0960
EXHIBIT B1-6 Form of Company Counsel's Opinion
EXHIBIT B2
FORM OF PURCHASER'S SPECIAL COUNSEL OPINION
[LETTERHEAD OF HEBB & GITLIN]
[Closing Date]
To the Persons Listed on
Annex 1 hereto
Re: Safety-Kleen Corp. (the "Company")
Ladies and Gentlemen:
Reference is made to the separate Note Purchase Agreements dated as of
January 15, 1995 (collectively, the "Note Purchase Agreement"), between the
Company and each of the purchasers listed on Annex 1 attached thereto (the
"Purchasers"), which provide, among other things, for the issuance and sale by
the Company of its 8.05% Senior Notes due January 30, 1998 in the aggregate
principal amount of Fifty Million Dollars ($50,000,000). The capitalized terms
used herein and not defined herein have the meanings specified by the Note
Purchase Agreement.
We have acted as special counsel to the Purchasers in connection with the
transactions contemplated by the Note Purchase Agreement. In acting as such
counsel, we have examined:
(a) the Note Purchase Agreement;
(b) the Company's 8.05% Senior Notes due January 30, 1998 dated the
date hereof, in the form of Exhibit A to the Note Purchase Agreement and in
the principal amounts and with the registration numbers set forth on Annex
1 to the Note Purchase Agreement (the "Notes");
(c) a certificate of the President and Chief Executive Officer of the
Company, substantially in the form attached to the Note Purchase Agreement
as Exhibit C;
(d) a certificate of the Secretary of the Company, substantially in
the form attached to the Note Purchase Agreement as Exhibit D;
(e) a letter to Hebb & Gitlin from Cascade Capital Corporation dated
the date hereof, making certain representations with respect to the manner
in which the Notes were offered (the "Offeree Letter");
(f) the opinion of Hyman K. Bielsky, counsel to the Company and the
Subsidiaries, dated the date hereof; and
EXHIBIT B2-1 FORM OF PURCHASER'S SPECIAL COUNSEL OPINION
(g) originals, or copies certified or otherwise identified to our
satisfaction, of such other documents, records, instruments and
certificates of public officials as we have deemed necessary or appropriate
to enable us to render this opinion.
In rendering our opinion, we have assumed that all signatures are genuine,
that all documents submitted to us as originals are genuine, that all copies
submitted to us conform to the originals, that all natural Persons have legal
capacity, and as to documents executed by or on behalf of Persons other than the
Company,
(i) that each such Person executing documents had the power to enter
into and perform its obligations under such documents, and
(ii) that such documents have been duly authorized, executed and
delivered by, and are binding upon and enforceable against, such Persons.
In rendering our opinion, we have relied, to the extent we deem necessary
and proper, on:
(a) warranties and representations as to factual matters contained in
the Note Purchase Agreement;
(b) the Offeree Letter; and
(c) said opinion of Hyman K. Bielsky with respect to all questions
governed by Wisconsin law and with respect to all questions concerning the
due incorporation, valid existence, corporate power and authority of, and
the authorization, execution and delivery of instruments by, the Company
(except that we have made an independent examination of a certified copy of
the articles of incorporation of the Company, and certificates of officers
of the Company setting forth its bylaws and corporate resolutions
authorizing its participation in the transactions contemplated by the Note
Purchase Agreement); based on such investigation as we have deemed
appropriate, said opinion is satisfactory in form and scope to us and in
our opinion the Purchasers and we are justified in relying thereon.
Based on the foregoing, we are of the following opinions:
1. The Company is a corporation duly incorporated, validly existing and
in good standing under the laws of the state of Wisconsin.
2. The Company has all requisite corporate power and authority to
execute and deliver the Note Purchase Agreement, to issue and sell the Notes,
and to perform its obligations set forth in each of the Note Purchase Agreement
and the Notes.
3. Each of the Note Purchase Agreement and the Notes has been duly
authorized by all necessary corporate action on the part of the Company, has
been executed and delivered by one or more duly authorized officers of the
Company, and constitutes a legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms.
EXHIBIT B2-2 FORM OF PURCHASER'S SPECIAL COUNSEL OPINION
4. The execution and delivery of the Note Purchase Agreement and the
Notes, and the issue and sale of the Notes, by the Company and the performance
by the Company of its obligations thereunder will not conflict with, result in a
breach of any provision of, constitute a default under, or result in the
creation or imposition of any Lien upon any of its Properties pursuant to, the
articles of incorporation or bylaws of the Company.
5. No consents, approvals or authorizations of governmental authorities
to the Company are required under the laws of the United States of America or
the State of New York in connection with the execution and delivery of each of
the Note Purchase Agreement and the Notes and the offer, issue, sale and
delivery of the Notes and the performance of the Company thereunder. Our
opinion in this Section 5 is based solely on a review of generally applicable
laws of the United States of America and New York and not on any search with
respect to, or review of, any orders, decrees, judgments or other determinations
specifically applicable to the Company.
6. Under existing law, the Notes are not required to be registered under
the Securities Act of 1933, as amended, and the Company is not required to
qualify an indenture with respect thereto under the Trust Indenture Act of 1939,
as amended.
All opinions herein contained with respect to the enforceability of
documents and instruments are qualified to the extent that:
(a) the availability of equitable remedies, including without
limitation, specific enforcement and injunctive relief, is subject to the
discretion of the court before which any proceedings therefor may be
brought; and
(b) the enforceability of certain terms provided in the Note Purchase
Agreement and the Notes may be limited by
(i) applicable bankruptcy, reorganization, arrangement,
insolvency, moratorium, fraudulent conveyance, or similar laws
affecting the enforcement of creditors' rights generally as at the
time in effect, and
(ii) common law or statutory requirements with respect to
commercial reasonableness.
This opinion is delivered to you pursuant to Section 3.1 of the Note
Purchase Agreement. We express no opinion as to the law of any jurisdiction
other than the law of New York, United States federal law and, as expressly set
forth in the next sentence, Wisconsin. To the extent that the opinions
expressed herein involve matters governed by the laws of Wisconsin, we have
relied upon the aforementioned opinion of Hyman K. Bielsky and our conclusions
as to such matters are subject to the same assumptions, limitations and
qualifications as are contained in said opinion. Subsequent holders of the
Notes may rely on this opinion as if it were addressed to them.
Very truly yours,
FORM OF PURCHASER'S SPECIAL COUNSEL OPINION
EXHIBIT B2-3
ANNEX 1
ADDRESSEES
Pacific Corinthian Life Insurance Company
Attention: Securities Administration
P.O. Box 9000
Newport Beach, California 92658-9000
Principal Mutual Life Insurance Company
711 High Street
Des Moines, IA 50392-0960
FORM OF PURCHASER'S SPECIAL COUNSEL OPINION
EXHIBIT B2-4
EXHIBIT C
FORM OF OFFICERS' CERTIFICATE
SAFETY-KLEEN CORP.
CERTIFICATE OF OFFICERS
I, ______ hereby certify that I am the ______ of SAFETY-KLEEN CORP., a
Wisconsin corporation (the "Company"), and that, as such, I have access to its
corporate records and am familiar with the matters herein certified, and I am
authorized to execute and deliver this Certificate in the name and on behalf of
the Company, and that:
1. This Certificate is being delivered pursuant to Section 3.3 of the
Company's separate Note Purchase Agreements (collectively, the "Note Purchase
Agreement"), each dated as of January 15, 1995 with each of the purchasers
listed on Annex 1 thereto (the "Purchasers"). The terms used in this
Certificate and not defined herein have the respective meanings specified in the
Note Purchase Agreement.
2. The warranties and representations contained in Section 2 of the Note
Purchase Agreement are true on the date hereof with the same effect as though
made on and as of the date hereof.
3. The Company has performed and complied with all agreements and
conditions contained in the Note Purchase Agreement that are required to be
performed or complied with by the Company before or at the date hereof.
4. ______, from ______ __, 199_ [date of resolutions to sell Notes] to
the date hereof, inclusive, has been and is the duly elected, qualified and
acting Assistant Secretary of the Company, and the signature appearing on the
Certificate of Secretary dated the date hereof and delivered to the Purchasers
contemporaneously herewith is his genuine signature.
IN WITNESS WHEREOF, I have executed this Certificate in the name and on
behalf of the Company on ______ __, 19__. [Closing Date]
SAFETY-KLEEN CORP.
By:__________________________________
Name:
EXHIBIT C-1 FORM OF OFFICERS' CERTIFICATE
EXHIBIT D
FORM OF SECRETARY'S CERTIFICATE
SAFETY-KLEEN CORP.
CERTIFICATE OF SECRETARY
I, ______, hereby certify that I am the duly elected, qualified and acting
Assistant Secretary of SAFETY-KLEEN CORP., a Wisconsin corporation (the
"Company"), and that, as such, I have access to its corporate records and am
familiar with the matters herein certified, and I am authorized to execute and
deliver this Certificate in the name and on behalf of the Company, and that:
1. This Certificate is being delivered pursuant to Section 3.3 of the
Company's separate Note Purchase Agreements (collectively, the "Note Purchase
Agreement"), each dated as of January 15, 1995 with each of the purchasers
listed on Annex 1 thereto (the "Purchasers"). The terms used in this
Certificate and not defined herein have the respective meanings specified in the
Note Purchase Agreement.
2. Attached hereto as Attachment A is a true and correct copy of
resolutions, and the preamble thereto, adopted by the board of directors of the
Company on ______ __, 199_, and such resolutions and preamble set forth in
Attachment A hereto were duly adopted by said Board of Directors and are in full
force and effect on and as of the date hereof, not having been amended, altered
or repealed, and such resolutions are filed with the records of the Board of
Directors.
3. The documents listed below were executed and delivered by the Company
pursuant to and in accordance with the resolutions set forth in Attachment A
hereto and said documents as executed are substantially in the form submitted to
and approved by the board of directors of the Company as aforementioned:
(a) the Company's Note Purchase Agreement providing for the sale by
the Company and the purchase by the Purchasers of the Company's 8.05%
Senior Notes due January 30, 1998 (the "Notes"); and
(b) the Notes.
4. Attached hereto as Attachment B is a true, correct and complete copy
of the bylaws of the Company as in full force and effect on and as of the date
hereof, which bylaws were last amended by the Board of Directors of the Company
on, and have been in full effect in said form at all times from ______ __, 199_
[date of resolution to sell notes] to the date hereof, inclusive, without
modification or amendment in any respect.
5. Each of the following named persons is and has been a duly elected,
qualified and acting officer of the Company holding the office or offices set
forth below opposite his or her name from ______ __, 199_ [date of resolution to
sell notes] to the date hereof, inclusive:
EXHIBIT D-1 FORM OF SECRETARY'S CERTIFICATE
[List Only Officers Executing Documents]
Name Office Signature
[Chairman of the Board] /s/__________________
[President] /s/__________________
[Vice President, Finance] /s/__________________
[Secretary] /s/__________________
[Assistant Secretary] /s/__________________
[Treasurer] /s/__________________
[Comptroller] /s/__________________
6. The signature appearing opposite the name of each such person set
forth above is his or her genuine signature.
7. Attached hereto as Attachment C is a long-form good standing
certificate in respect of the Company from the State of Wisconsin which
certificate
(a) lists all corporate documents filed with the Secretary of State of
Wisconsin on or prior to the date hereof in respect of the Company,
(b) has attached copies of such documents,
(c) bears the certification of the Secretary of State of Wisconsin,
and
(d) is true, correct and complete.
8. There have been no amendments or supplements to or restatements of
the Certificate of Incorporation of the Company since ______ __, 199_ [date
preceding date of copy certified by Sec. of State].
IN WITNESS WHEREOF, I have hereunto set my hand on ______ __, 19__.
[Closing Date]
SAFETY-KLEEN CORP.
----------------------------------------
Assistant Secretary
EXHIBIT D-2 FORM OF SECRETARY'S CERTIFICATE
ATTACHMENT A
BOARD OF DIRECTORS
SAFETY-KLEEN CORP.
RESOLUTIONS ADOPTED
WHEREAS, there has been submitted to this Board a draft of the form of Note
Purchase Agreement (together with all exhibits and schedules thereto, the "Note
Purchase Agreement"), to be entered into separately by the Company and each of
the purchasers listed on Annex 1 thereto (together with any affiliate of any
thereof, the "Purchasers") pursuant to which the Purchasers will purchase from
the Company the aggregate principal amount of $50,000,000 of the Company's 8.05%
Senior Notes due January 30, 1998 (the "Notes");
WHEREAS, this Board has reviewed in detail and discussed the terms and
provisions of the Note Purchase Agreement, including the forms of the Notes
specified therein;
WHEREAS, on the basis of its review of the Note Purchase Agreement and of
the principal terms and provisions of the transactions provided for therein,
this Board deems it advisable and in the best interest of the Company that the
transactions provided in the Note Purchase Agreement be consummated
substantially in accordance with the provisions of the Note Purchase Agreement;
and
WHEREAS, terms used in these preambles and resolutions and not herein
defined shall have the respective meanings ascribed to them in the Note Purchase
Agreement.
NOW THEREFORE, BE IT RESOLVED, that the form of, and each of the terms and
provisions contained in, the Note Purchase Agreement, are hereby authorized and
approved in each and every respect; and each and every transaction effected or
to be effected pursuant to and substantially in accordance with the terms of the
Note Purchase Agreement, including, but not limited to, each specific
transaction that is described, authorized and approved in these resolutions, is
hereby authorized and approved in each and every respect;
RESOLVED, that the Company enter into a Note Purchase Agreement with each
of the Purchasers or any affiliate thereof; and that each of the Chairman of the
Board, the President, any Vice President, the Treasurer and each other officer
of the Company (each an "Authorized Officer") is hereby severally authorized to
execute and deliver, in the name and on behalf of the Company, the Note Purchase
Agreements, each substantially in the form thereof presented to this Board and
heretofore approved, with such changes therein as shall be approved by the
officer executing and delivering the same, such approval to be evidenced
conclusively by such execution and delivery;
RESOLVED, that the Company borrow from the Purchasers an aggregate amount
of funds as provided in the Note Purchase Agreement, such indebtedness to be
evidenced by the Notes, in the amounts and upon the terms and conditions
provided for in the Note Purchase Agreement; and that each of the Authorized
Officers is hereby severally authorized to execute and deliver the Notes, in the
name and on behalf of the Company, substantially in the respective forms thereof
presented to this Board and heretofore approved, with such changes therein as
EXHIBIT D-3 FORM OF SECRETARY'S CERTIFICATE
shall be approved by the officer or officers executing and delivering the same,
such approval to be evidenced conclusively by such execution and delivery;
RESOLVED, that this Board hereby authorizes each of the Authorized
Officers, severally, to execute and deliver for and on behalf of the Company the
certificates required by the Note Purchase Agreement;
RESOLVED, that the Authorized Officers and any person or persons designated
and authorized so to act by any Authorized Officer are hereby each severally
authorized to do and perform or cause to be done and performed, in the name and
on behalf of the Company, all other acts, to pay or cause to be paid, on behalf
of the Company, all related costs and expenses and to execute and deliver or
cause to be executed and delivered such other notices, requests, demands,
directions, consents, approvals, orders, applications, agreements, instruments,
certificates, undertakings, supplements, amendments, further assurances or other
communications of any kind, under the corporate seal of the Company or otherwise
and in the name of and on behalf of the Company or otherwise, as he, she or they
may deem necessary, advisable or appropriate to effect the intent of the
foregoing Resolutions or to comply with the requirements of the instruments
approved and authorized by the foregoing Resolutions, including but not limited
to the Note Purchase Agreement and the Notes;
RESOLVED, that any acts of any Authorized Officer of the Company and of any
person or persons designated and authorized to act by any Authorized Officer of
the Company, which acts would have been authorized by the foregoing Resolutions
except that such acts were taken prior to the adoption of such Resolutions, are
hereby severally ratified, confirmed, approved and adopted as the acts of the
Company; and
RESOLVED, that each of the Secretary and each Assistant Secretary of the
Company is hereby severally authorized and empowered to certify to the passage
of the foregoing Resolutions under the seal of this Company or otherwise.
EXHIBIT D-4 FORM OF SECRETARY'S CERTIFICATE
Attachment B
Bylaws of the Company
[TO BE SUPPLIED BY COMPANY]
EXHIBIT D-5 FORM OF SECRETARY'S CERTIFICATE