AMENDED AND RESTATED NOTE PURCHASE AGREEMENTNote Purchase Agreement |
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GIBRALTAR STEEL CORPORATION
$75,000,000
5.75% Senior Secur ed Notes due June 17, 2011
__________________________________________ AMENDED AND RESTATED NOTE PURCHASE AGREEMENT __________________________________________
Dat ed as of April1, 2005
GIBRALTAR STEEL CORPORATION OF NEW YORK 3556 Lakeshore Road Buffalo , New York 14219
5.75% Senior Secured Notes due June 17, 2011
as of April 1, 2005
TO EACH OF THE PURCHASERS LISTED IN Ladies and Gentlemen: Gibraltar Steel Corporation of New York, a New York corporation (the "Company"), and Gibraltar Industries, Inc. f/k/a Gibraltar Steel Corporation, a Delaware corporation ("Parent"), and you (sometimes referr ed to individually as a "Purchaser" and collectively as the "Purchasers") are parties to a certain Note Purchase Agreement, dated as of June 18, 2004 (as amended and in effect on the date hereof, the "Original Note Agreement"), pursuant to which Purchasers have purchased or agreed to purchase the "Notes" (as defined below). The Company, Parent and Purchasers have agreed to amend certain covenants and events of default set forth in the Original Note Agreement. As a convenience to the Company, Parent and Purchasers, the Company, Parent and Purchasers have agreed to effect such amendments by amending and restating the Original Note Agreement in its entirety as hereinafter set forth, upon and subject to the terms and conditions hereof. This amendment and restatement is not intended to be, and shall not be deemed or construed as, a repayment or a novation of the indebtedness outstanding pursuant to the Original Note Agreement. The Company, Parent and Purchasers hereby agree that the Original Note Agreement is hereby amended and restated in its entirety to read as follows: The Company has authoriz ed the issue and sale of $75,000,000 aggregate principal amount (as reduced by the amount of the Final Subsequent Notes if the purchase and sale thereof is cancelled pursuant to Section 2F(2), " Maximum Amount ") of its 5.75% Senior Secured Notes due June 17, 2011 (the "Notes" , such term to include any such notes issued in substitution therefor pursuant to Section 13 of this Agreement). Pursuant to the Original Note Agreements, Notes in the following principal amounts were issued on the following dates:
The $65,000,000 in aggregate principal amount of Notes issued by Company to Purchasers pursuant to the Original Note Agreement shall remain outstanding pursuant to this Agreement. Pursuant to this Agreement Purchasers may issue and sell an additional $10,000,000 aggregate principal amount of Notes. The Notes are and shall be substantially in the form set out in Exhibit 1, with such changes therefrom, if any, as may be approv ed by you and the Company. 2. Sale and Purchase of Notes. 2A. Facility. Subject to the terms and conditions hereof, Purchasers agree to purchase additional Notes pursuant to this Agreement (such additional Notes, the " F inal Subsequent Notes ") in an aggregate amount (i.e., $10,000,000) such that the aggregate principal amount of Notes (including Final Subsequent Notes) outstanding will not exceed the Maximum Amount, and as to each Purchaser the aggregate principal amount specified opposite its name on Schedule A . Purchasers' agreements to purchase Notes under the Original Note Agreement and hereunder are collectively referred to herein as the " Facility ". 2B. Issuance Period. F inal Subsequent Notes may be issued and sold pursuant to this Agreement, on a pro rata basis as among Purchasers, during the period commencing on the date of this Agreement and ending on September 14, 2005 (" Issuance Period "). 2C. Notice of Issuance. The Company will during the Issuance Period deliver a notice of issuance with respect to the F inal Subsequent Notes (such request being the " Notice of Issuance "). The Notice of Issuance shall be delivered to Prudential by telecopier and shall (i) specify the use of proceeds of the Final Subsequent Note, (ii) specify the closing day for such Notes which shall be a Business Day during the Issuance Period not less than twenty (20) days and not more than thirty (30) days after the date of the Notice of Issuance, (iii) specify the number of the account and the name and address of the depository institution to which the purchase prices of such Notes are to be transferred on the Closing Day for such purchase and sale, (iv) certify that the representations and warranties contained in paragraph 5 are true and correct as of the date of the Notice of Issuance (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date) except to the extent of changes caused by the transactions herein contemplated and that there exists on the date of the Notice of Issuance no Event of Default or Default, and (v) be substantially in the form of Exhibit 2 attached hereto. The Notice of Issuance shall be in writing and shall be deemed made when received by Prudential. 2D. Receipt of Notice of Issuance. Upon receipt of the Notice of Issuance from the Company, Prudential shall provide a copy thereof to each of the Purchasers. Subject to the terms and conditions hereof, Company agrees to sell to each Purchaser, and each Purchaser agrees to purchase from the Company, on a pro rata basis, the F inal Subsequent Notes on the Closing Day for such Notes. 2E(1) Closing. Not later than 11:30 A.M. (New York City local time) on the Closing Day for the F inal Subsequent Notes, the Company will deliver to each Purchaser at the offices of King & Spalding, LLP, 1185 Avenue of the Americas, New York, New York 10036 (or at such other address as any Purchaser shall specify) the Final Subsequent Notes to be purchased by such Purchaser on such Closing Day in the form of one or more Notes in authorized denominations as such Purchaser may request for the Notes to be purchased on such Closing Day, dated the Closing Day and registered in such Purchaser's name (or in the name of its nominee), against payment of the purchase price thereof by transfer of immediately available funds for credit to the Company's account specified in the Notice of Issuance. 2E(2) Resch eduled Closing. If the Company fails to tender to any Purchaser the Final Subsequent Notes to be purchased by such Purchaser on the scheduled Closing Day for such Final Subsequent Notes as provided above in this Section 2E, or any of the conditions specified in Section 4 shall not have been fulfilled by the time required on such scheduled Closing Day, the Company shall, prior to 1:00 P.M., New York City local time, on such scheduled Closing Day notify such Purchaser in writing whether (x) such closing is to be rescheduled (such rescheduled date to be a Business Day during the Issuance Period not less than one (1) Business Day and not more than thirty (30) Business Days after such scheduled Closing Day (the " Rescheduled Closing Day ")) and certify to Purchaser that the Company reasonably believes that it will be able to comply with the conditions set forth in Section 4 on such Rescheduled Closing Day (and, if applicable, that the Company will pay the applicable Delayed Delivery Fee in accordance with Section 2F(1)) or (y) such closing is to be canceled as provided in Section 2F(2). In the event that the Company shall fail to give such notice referred to in the preceding sentence, Purchaser may at its election, at any time after 1:00 P.M., New York City local time, on such scheduled Closing Day, notify the Company in writing that such closing is to be canceled as provided in paragraph 2F(2). The Company may elect to reschedule a closing with respect to the Final Subsequent Notes on more than one occasion so long as the closing occurs within the Issuance Period. 2F. Fees Payable with respect to the Final Subsequent Notes. 2F(1) Delay ed Delivery Fee. If the closing of the purchase and sale of the Final Subsequent Notes is delayed for any reason (other than solely as a result of the failure of a Purchaser to timely pay the applicable purchase price if all conditions of such purchase have been timely satisfied) beyond the last day of the Issuance Period, the Company will pay to each Purchaser (in accordance with such Purchaser's pro rata share of such Notes) on the applicable Rescheduled Closing Day (if any) or Cancellation Day, the applicable Delayed Delivery Fee. In no case shall the applicable Delayed Delivery Fee be less than zero, and the applicable Delayed Delivery Fee will be recalculated relative to each delay of the Closing Day for the Final Subsequent Notes. Nothing contained herein shall obligate any Purchaser to purchase any Final Subsequent Note on any day other than the Closing Day or Rescheduled Closing Day for such Notes, as the same may be rescheduled from time to time in compliance with paragraph 2E, or to allow any Rescheduled Closing Date to occur after the expiration of the Issuance Period. 2F(2) Cancellation Fee. If the Company fails to deliver to Prudential the Notice of Issuance during the Issuance Period or at any time notifies Prudential in writing that the Company is canceling the closing of the purchase and sale of the F inal Subsequent Notes, or if Prudential notifies the Company in writing under the circumstances set forth in the penultimate sentence of paragraph 2(E)(2) that the closing of the purchase and sale of such Notes is to be canceled, or if the Facility is cancelled pursuant to Section 12.1 or if the closing of the purchase and sale of the Final Subsequent Notes is not consummated on or prior to the last day of the Issuance Period applicable thereto (the date of any such notification, any cancellation of the Facility pursuant to Section 12.1 or the last day of the Issuance Period, as the case may be, being the " Cancellation Date "), the Company will promptly pay to each Purchaser (in accordance with such Purchaser's pro rata portion of the Final Subsequent Notes) in immediately available funds the Cancellation Fee. 3. Conditions to Effectiveness of Agreement. The effectiveness of this Agreement is subject to the fulfillment to each Purchaser's satisfaction, on or prior to the date of this Agreement, of the following conditions: 3.1 Certain Documents. Purchasers shall have received the following each dated the date of this Agreement unless otherwise indicated:
(a) the Guaranty
Agreements; 3.2 Representations and Warranties. The representations and warranties of Parent, the Company and Subsidiaries in this Agreement or any other Related Document to which it is a party shall be correct on the date of this Agreement. 3.3 Performance; No Default. Each of Parent, the Company and each Subsidiary Guarantor shall have performed and complied with all agreements and conditions contained in this Agreement or any other Related Document to which it is a party required to be performed or complied with by it prior to or at the date of this Agreement and no Default or Event of Default shall have occurred and be continuing. Neither Parent nor the Company nor any Subsidiary shall have entered into any transaction since December 31, 2003 that would have been prohibited by Sections 10.1, 10.7 or 10.8 hereof had such Sections applied since such date. 3.4 Certificates. (a) Officer's Certificate. Parent and the Company shall have delivered to you an Officer's Certificate, dated as of the date hereof, certifying that the conditions specified in Sections 3.2, 3.3 and 3.8 have been fulfilled. (b) Secretary's Certificate. Each of Parent, the Company and each Subsidiary Guarantor shall have delivered to you a certificate certifying as to the resolutions attached thereto and other corporate proceedings relating to the authorization, execution and delivery of each Related Document to which it is a party including without limitation its constituent documents. (c) Good Standing Certificates. Each of Parent, the Company and each Subsidiary Guarantor shall have delivered good standing certificates for it, issued by the Secretary of State or other appropriate official of its jurisdiction of incorporation and each jurisdiction where the conduct of its business activities or ownership of its property necessitates qualification. 3.5 Opinions of Counsel. You shall have received opinions in form and substance satisfactory to you, dated as of the date hereof (a) from Lippes, Mathias, Wexler & Friedman LLP, counsel for the Company, covering the matters set forth in Exhibit 3.5(a) and covering such other matters incident to the transactions contemplated hereby as you or your counsel may reasonably request (and the Company hereby instructs its counsel to deliver such opinion to you) and (b) from King & Spalding, LLP, your special counsel in connection with such transactions, covering such matters incident to such transactions as you may reasonably request. 3.6 Credit Agreement. Each Purchaser has received a true, correct and complete copy of the Credit Agreement (including all Exhibits and Schedules thereto) and any other document executed in connection therewith and all amendments and waivers relating thereto. As of the date hereof, none of such documents and agreements shall have been amended or supplemented, nor shall have any of the provisions thereof have been waived except pursuant to a written agreement or instrument which has been consented to by each of the Holders in writing. Each of the Credit Agreement and each such other document has been duly executed and delivered by the parties thereto and is in full force and effect. 3.7 Payment of Special Counsel Fees. Without limiting the provisions of Section 15.1, the Company shall have paid on or before the date of this Agreement the reasonable fees, charges and disbursements of your special counsel referred to in Section 3.5 to the extent reflected in a statement of such counsel rendered to the Company at least one Business Day prior to the date of this Agreement. 3.8 Changes in Corporate Structure. Each of Parent and the Company shall not have changed its jurisdiction of incorporation or been a party to any merger or consolidation and shall not have succeeded to all or any substantial part of the liabilities of any other entity, at any time following the date of the most recent financial statements referred to in Schedule 5.5. 3.9 Evidence of Per4fection and Priority of Security Interests. You shall have received copies of all filing receipts or acknowledgments issued by any governmental authority to evidence any filing or recordation necessary to perfect the Security Interests of Collateral Agent on behalf of the Secured Lender Group in the Collateral and evidence in form satisfactory to you that such Liens constitute valid and perfected Security Interests, and that there are no other Liens upon any Collateral except for Permitted Encumbrances. 3.10 2002 Note Agreement; Subordinated Note Agreement . On or prior to the date hereof, the 2002 Note Agreement and the Subordinated Note Agreement shall have been amended in a manner satisfactory to each Purchaser such that the covenants and events of default set forth therein are consistent with those set forth herein. 3.11 Amendment Fee; Proceedings and Documents. The Company shall have paid to each Purchaser (in accordance with its pro rata share of the Notes) an amendment fee in the amount of $45,000 in the aggregate as to all Purchasers. All corporate and other proceedings in connection with the transactions contemplated by this Agreement and all documents and instruments incident to such transactions shall be satisfactory to you and your special counsel, and you and your special counsel shall have received all such counterpart originals or certified or other copies of such documents as you or they may reasonably request. 4. Conditions to Closing of issuance of final subsequent notes. The obligation of any Purchaser to purchase and pay for the Final Subsequent Notes to be sold to Purchasers on the Closing Day for such Notes is subject to the fulfillment to such Purchaser's satisfaction, prior to or at such Closing Day, of the following conditions: 4.1 Certain Documents. Such Purchaser shall have received the following each dated such Closing Day unless otherwise indicated: (a) the Final Subsequent Notes to be purchased by such Purchaser on such Closing Day; and (b) on such Closing Day, reaffirmations of the Guaranty Agreements, in form and substance satisfactory to each Purchaser. 4.2 Representations and Warranties. The representations and warranties of Parent, the Company and Subsidiaries in this Agreement or any other Related Document to which it is a party shall be correct when made and on such Closing Day. 4.3 Performance; No Default. Each of Parent, the Company and each Subsidiary Guarantor shall have performed and complied with all agreements and conditions contained in this Agreement or any other Related Document to which it is a party required to be performed or complied with by it prior to or at the such Closing Day and after giving effect to the issue and sale of the Final Subsequent Notes on such Closing Day (and the application of the proceeds thereof as contemplated by Section 5.14) no Default or Event of Default shall have occurred and be continuing. Neither Parent nor the Company nor any Subsidiary shall have entered into any transaction since December 31, 2003 that would have been prohibited by Sections 10.1, 10.7 or 10.8 hereof had such Sections applied since such date. 4.4 Certificatees. (a) Officer's Certificate. Parent and the Company shall have delivered to you an Officer's Certificate, dated as of such Closing Day, certifying that the conditions specified in Sections 4.2, 4.3 and 4.9 have been fulfilled. (b) Secretary's Certificate. On such Closing Day, each of Parent, the Company and each Subsidiary Guarantor shall have delivered to you a certificate certifying as to the resolutions attached thereto and other corporate proceedings relating to the authorization, execution and delivery of each Related Document to which it is a party including without limitation its constituent documents (and attaching copies of such constituent documents or, in the case of each such certificate delivered subsequent to the date of this Agreement, in lieu of attaching copies, certifying that there have been no changes to the constituent documents since the date of this Agreement). (c) Good Standing Certificates. On such Closing Day, each of Parent, the Company and each Subsidiary Guarantor shall have delivered good standing certificates for it, issued by the Secretary of State or other appropriate official of its jurisdiction of incorporation and each jurisdiction where the conduct of its business activities or ownership of its property necessitates qualification. 4.5 Opinions of Counsel. On such Closing Day, you shall have received opinions in form and substance satisfactory to you, dated such Closing Day (a) from Lippes, Silverstein, Wexler & Friedman LLP, counsel for the Company, covering the matters set forth in Exhibit 3.5(a) and covering such other matters incident to the transactions contemplated hereby as you or your counsel may reasonably request (and the Company hereby instructs its counsel to deliver such opinion to you) and (b) from King & Spalding, LLP, your special counsel in connection with such transactions, covering such matters incident to such transactions as you may reasonably request. 4.6 Purchase Permitted by Applicable Law, Etc. On such Closing Day your purchase of Notes shall (i) be permitted by the laws and regulations of each jurisdiction to which you are subject, without recourse to provisions (such as Section 1405(a)(8) of the New York Insurance Law) permitting limited investments by insurance companies without restriction as to the character of the particular investment, (ii) not violate any applicable law or regulation (including, without limitation, Regulation T or X of the Board of Governors of the Federal Reserve System) and (iii) not subject you to any tax, penalty or liability under or pursuant to any applicable law or regulation, which law or regulation was not in effect on the date hereof. If requested by you, you shall have received an Officer's Certificate certifying as to such matters of fact as you may reasonably specify to enable you to determine whether such purchase is so permitted. 4.7 Credit Agreement. As of such Closing Day, none of the Credit Agreement (including all Exhibits and Schedules thereto) or any documents executed in connection therewith shall have been amended or supplemented, nor shall have any of the provisions thereof have been waived except pursuant to a written agreement or instrument which has been consented to by each of the Holders in writing. 4.8 Payment of Special Counsel Fees. Without limiting the provisions of Section 15.1, the Company shall have paid on or before such Closing Day the reasonable fees, charges and disbursements of your special counsel referred to in Section 4.5 to the extent reflected in a statement of such counsel rendered to the Company at least one Business Day prior to such Closing Day. 4.9 Changes in Corporate Structure. Each of Parent and the Company shall not have changed its jurisdiction of incorporation or been a party to any merger or consolidation and shall not have succeeded to all or any substantial part of the liabilities of any other entity, at any time following the date of the most recent financial statements referred to in Schedule 5.5. 4.10 Evidence of Perfection and Priority of Security Interests You shall have received copies of all filing receipts or acknowledgments issued by any governmental authority to evidence any filing or recordation necessary to perfect the Security Interests of Collateral Agent on behalf of the Secured Lender Group in the Collateral and evidence in form satisfactory to you that such Liens constitute valid and perfected Security Interests, and that there are no other Liens upon any Collateral except for Permitted Encumbrances. 4.11 Proceedings and Documents. All corporate and other proceedings in connection with the transactions contemplated by this Agreement and all documents and instruments incident to such transactions shall be satisfactory to you and your special counsel, and you and your special counsel shall have received all such counterpart originals or certified or other copies of such documents as you or they may reasonably request. 5. Representations and Warranties. Each of Parent and the Company represents and warrants to you that: 5.1. Organization; Power and Authority . Each of Parent and the Company is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation, and is duly qualified as a foreign corporation and is in good standing in each jurisdiction in which such qualification is required by law, other than those jurisdictions as to which the failure to be so qualified or in good standing could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Each of Parent and the Company has the corporate power and authority to own or hold under lease the properties it purports to own or hold under lease, to transact the business it transacts, to execute and deliver each Related Document to which it is a party and to perform the provisions thereof. Each Related Document has been duly authorized by all necessary corporate action on the part of Parent, the Company and each Subsidiary Guarantor, and each Related Document constitutes a legal, valid and binding obligation of Parent, the Company and each Subsidiary Guarantor, as the case may be, enforceable against it in accordance with its terms. Except as disclosed in Schedule 5.3, this Agreement, the documents, certificates or other writings delivered to you by or on behalf of the Company in connection with the transactions contemplated hereby and the financial statements listed in Schedule 5.5, taken as a whole, do not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading in light of the circumstances under which they were made. Except as expressly described in Schedule 5.3, or in one of the documents, certificates or other writings identified therein, or in the financial statements listed in Schedule 5.5, since December 31, 2004, there has been no change in the financial condition, operations, business, properties or prospects of Parent, the Company or any Subsidiary except changes that individually or in the aggregate could not reasonably be expected to have a Material Adverse Effect. There is no fact known to Parent or the Company that could reasonably be expected to have a Material Adverse Effect that has not been set forth herein or in the other documents, certificates and other writings delivered to you by or on behalf of Parent or the Company specifically for use in connection with the transactions contemplated hereby. 5.4. Organization and Ownership of Shares of Subsidiaries; Affiliate. (a) Schedule 5.4 contains (except as noted therein) complete and correct lists (i) of Parent's Subsidiaries, showing, as to each Subsidiary, the correct name thereof, the jurisdiction of its organization, and the percentage of shares of each class of its capital stock or similar equity interests outstanding owned by Parent and each other Subsidiary, (ii) of Parent's Affiliates, other than Subsidiaries, and (iii) of Parent's directors and senior officers of Parent and the Company. (b) All of the outstanding shares of capital stock or similar equity interests of each Subsidiary shown in Schedule 5.4 as being owned by Parent and its Subsidiaries have been validly issued, are fully paid and nonassessable and are owned by Parent or another Subsidiary free and clear of any Lien. (c) Each Subsidiary identified in Schedule 5.4 is a corporation or other legal entity duly organized, validly existing and in good standing under the laws of its jurisdiction of organization, and is duly qualified as a foreign corporation or other legal entity and is in good standing in each jurisdiction in which such qualification is required by law, other than those jurisdictions as to which the failure to be so qualified or in good standing could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Each such Subsidiary has the corporate or other power and authority to own or hold under lease the properties it purports to own or hold under lease and to transact the business it transacts and proposes to transact, to execute and deliver each Related Document to which it is a party and to perform the provisions thereof. (d) No Subsidiary is a party to, or otherwise subject to any legal restriction or any agreement (other than this Agreement, the agreements listed on Schedule 5.4 and customary limitations imposed by corporate law statutes) restricting the ability of such Subsidiary to pay dividends out of profits or make any other similar distributions of profits to Parent or any of its Subsidiaries that owns outstanding shares of capital stock or similar equity interests of such Subsidiary. Parent has delivered to each Purchaser copies of the Consolidated financial statements of Parent and its Subsidiaries listed on Schedule 5.5. All of said financial statements (including in each case the related schedules and notes) fairly present in all material respects the consolidated financial position of Parent and its Subsidiaries as of the respective dates specified in such Schedule and the consolidated results of their operations and cash flows for the respective periods so specified and have been prepared in accordance with GAAP consistently applied throughout the periods involved except as set forth in the notes thereto (subject, in the case of any interim financial statements, to normal year-end adjustments). 5.6. Compliance with Laws, Other Instruments, Etc . The execution, delivery and performance by Parent, the Company or any Subsidiary Guarantor of any Related Document to which it is a party will not (i) contravene, result in any breach of, or constitute a default under, or result in the creation of any Lien in respect of any property of Parent, the Company or any Subsidiary under, any indenture, mortgage, deed of trust, loan, purchase or credit agreement, lease, corporate charter or by-laws, or any other agreement or instrument to which Parent, the Company or any Subsidiary is bound or by which Parent, the Company or any Subsidiary or any of their respective properties may be bound or affected, (ii) conflict with or result in a breach of any of the terms, conditions or provisions of any order, judgment, decree, or ruling of any court, arbitrator or Governmental Authority applicable to Parent, the Company or any Subsidiary or (iii) violate any provision of any statute or other rule or regulation of any Governmental Authority applicable to Parent, the Company or any Subsidiary. 5.7. Governmental Authorizations, Etc. No consent, approval or authorization of, or registration, filing or declaration with, any Governmental Authority is required in connection with the execution, delivery or performance by Parent, the Company or any Subsidiary Guarantor of any Related Document to which it is a party. 5.8. Litigation; Observance of Agreements, Statutes and Orders. (a) There are no actions, suits or proceedings pending or, to the knowledge of Parent or the Company, threatened against Parent, the Company or any Subsidiary or any property of Parent, the Company or any Subsidiary in any court or before any arbitrator of any kind or before or by any Governmental Authority that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. (b) Neither Parent nor the Company nor any Subsidiary is in default under any term of any agreement or instrument to which it is a party or by which it is bound, or any order, judgment, decree or ruling of any court, arbitrator or Governmental Authority or is in violation of any applicable law, ordinance, rule or regulation (including without limitation Environmental Laws) of any Governmental Authority, which default or violation, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. Parent and its Subsidiaries have filed all tax returns that are required to have been filed in any jurisdiction, and have paid all taxes shown to be due and payable on such returns and all other taxes and assessments levied upon them or their properties, assets, income or franchises, to the extent such taxes and assessments have become due and payable and before they have become delinquent, except for any taxes and assessments (i) the amount of which is not individually or in the aggregate Material or (ii) the amount, applicability or validity of which is currently being contested in good faith by appropriate proceedings and with respect to which Parent or a Subsidiary, as the case may be, has established adequate reserves in accordance with GAAP. Neither Parent nor the Company knows of any basis for any tax or assessment that could reasonably be expected to have a Material Adverse Effect. The charges, accruals and reserves on the books of Parent and its Subsidiaries in respect of Federal, state or other taxes for all fiscal periods are adequate. The Federal income tax liabilities of Parent and its Subsidiaries have been determined by the Internal Revenue Service and paid for all fiscal years up to and including the fiscal year ended December 31, 2000. 5.10. Title to Property; Leases. Parent and its Subsidiaries have good and sufficient title to their respective properties that individually or in the aggregate are Material, including all such properties reflected in the most recent audited balance sheet referred to in Section 5.5 or purported to have been acquired by Parent or any Subsidiary after said date (except as sold or otherwise disposed of in the ordinary course of business), in each case free and clear of Liens prohibited by this Agreement. All leases that individually or in the aggregate are Material are valid and subsisting and are in full force and effect in all material respects. (a) Parent and its Subsidiaries own or possess all licenses, permits, franchises, authorizations, patents, copyrights, service marks, trademarks and trade names, or rights thereto, that individually or in the aggregate are Material, without known conflict with the rights of others; (b) to the knowledge of Parent and the Company, no product of Parent or any of its Subsidiaries infringes in any material respect any license, permit, franchise, authorization, patent, copyright, service mark, trademark, trade name or other right owned by any other Person; and (c) to the knowledge of Parent and the Company, there is no Material violation by any Person of any right of Parent or any of its Subsidiaries with respect to any patent, copyright, service mark, trademark, trade name or other right owned or used by the Company or any of its Subsidiaries. (a) Parent, the Company and each ERISA Affiliate have operated and administered each Plan in compliance with all applicable laws except for such instances of noncompliance as have not resulted in and could not reasonably be expected to result in a Material Adverse Effect. Neither Parent, the Company nor any ERISA Affiliate has incurred any liability pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of the Code relating to employee benefit plans (as defined in section 3 of ERISA), and no event, transaction or condition has occurred or exists that could reasonably be expected to result in the incurrence of any such liability by Parent, the Company or any ERISA Affiliate, or in the imposition of any Lien on any of the rights, properties or assets of Parent, the Company or any ERISA Affiliate, in either case pursuant to Title I or IV of ERISA or to such penalty or excise tax provisions or to section 401(a)(29) or 412 of the Code, other than such liabilities or Liens as would not be individually or in the aggregate Material. (b) The present value of the aggregate benefit liabilities under each of the Plans (other than Multiemployer Plans), determined as of the end of such Plan's most recently ended plan year on the basis of the actuarial assumptions specified for funding purposes in such Plan's most recent actuarial valuation report, did not exceed the aggregate current value of the assets of such Plan allocable to such benefit liabilities . The term "benefit liabilities" has the meaning specified in section 4001 of ERISA and the terms "current value" and "present value" have the meaning specified in section 3 of ERISA. (c) Parent, the Company and their ERISA Affiliates have not incurred withdrawal liabilities (and are not subject to contingent withdrawal liabilities) under section 4201 or 4204 of ERISA in respect of Multiemployer Plans that individually or in the aggregate are Material. (d) The expected postretirement benefit obligation (determined as of the last day of Parent's most recently ended fiscal year in accordance with Financial Accounting Standards Board Statement No. 106, without regard to liabilities attributable to continuation coverage mandated by section 4980B of the Code) of Parent and its Subsidiaries is not Material. (e) The execution and delivery of any Related Document will not involve any transaction that is subject to the prohibitions of section 406 of ERISA or in connection with which a tax could be imposed pursuant to section 4975(c)(1)(A)-(D) of the Code. The representation by Parent and the Company in the first sentence of this Section 5.12(e) is made in reliance upon and subject to (i) the accuracy of your representation in Section 6.2 as to the sources of the funds used to pay the purchase price of the Notes to be purchased by you and (ii) the assumption, made solely for the purpose of making such representation, that Department of Labor Interpretive Bulletin 75-2 with respect to prohibited transactions remains valid in the circumstances of the transactions contemplated herein. 5.13. Private Offering by the Company. Neither Parent, the Company nor anyone acting on its behalf has offered the Notes or any similar securities for sale to, or solicited any offer to buy any of the same from, or otherwise approached or negotiated in respect thereof with, any person other than you and not more than 12 other Institutional Investors, each of which has been offered the Notes at a private sale for investment. Neither Parent nor the Company nor anyone acting on its behalf has taken, or will take, any action that would subject the issuance or sale of the Notes to the registration requirements of Section 5 of the Securities Act. 5.14. Use of Proceeds; Margin Regulations. The Company has and will apply the proceeds of the sale of the Notes for general corporate purposes. No part of the proceeds from the sale of the Notes hereunder will be used, directly or indirectly or for the purpose of buying or carrying or trading in any securities under such circumstances as to involve the Company in a violation of Regulation X of said Board (12 CFR 224) or to involve any broker or dealer in a violation of Regulation T of said Board (12 CFR 220). Margin stock does not constitute any of the value of the consolidated assets of the Company and its Subsidiaries and the Company does not have any present intention that margin stock will constitute any portion of the value of such assets. As used in this Section, the terms "margin stock" and "purpose of buying or carrying" shall have the meanings assigned to them in said Regulation X. 5.15. Existing Indebtedness; Future Liens. (a) Except as described therein, Schedule 5.15 sets forth a complete and correct list of all outstanding Indebtedness of Parent and its Subsidiaries as of December 31, 2004, since which date there has been no Material change in the amounts, interest rates, sinking funds, installment payments or maturities of the Indebtedness of Parent or its Subsidiaries. Neither Parent nor any Subsidiary is in default and no waiver of default is currently in effect, in the payment of any principal or interest on any Indebtedness of Parent or such Subsidiary and no event or condition exists with respect to any Indebtedness of Parent or any Subsidiary that would permit (or that with notice or the lapse of time, or both, would permit) one or more Persons to cause such Indebtedness to become due and payable before its stated maturity or before its regularly scheduled dates of payment. (b) Except as disclosed in Schedule 5.15, neither Parent nor any Subsidiary of Parent has agreed or consented to cause or permit in the future (upon the happening of a contingency or otherwise) any of its property, whether now owned or hereafter acquired, to be subject to a Lien not permitted by Section 10.4. 5.16. Foreign Assets Control Regulations, Etc. Neither the sale of the Notes by the Company under the Original Note Agreement or hereunder nor its use of the proceeds thereof has or will violate the Trading with the Enemy Act, as amended, or any of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or executive order relating thereto. 5.17. Status under Certain Statutes. Neither Parent nor the Company nor any Subsidiary is 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. (a) Neither Parent nor the Company nor any Subsidiary has knowledge of any claim or has received any notice of any claim, and no proceeding has been instituted raising any claim against Parent or the Company or any of its Subsidiaries or any of their respective real properties now or formerly owned, leased or operated by any of them or other assets, alleging any damage to the environment or violation of any Environmental Laws, except, in each case, such as could not reasonably be expected to result in a Material Adverse Effect. (b) Neither Parent nor the Company nor any Subsidiary has knowledge of any facts which would give rise to any claim, public or private, of violation of Environmental Laws or damage to the environment emanating from, occurring on or in any way related to real properties now or formerly owned, leased or operated by any of them or to other assets or their use, except, in each case, such as could not reasonably be expected to result in a Material Adverse Effect. (c) Neither Parent nor the Company nor any of its Subsidiaries has (i) stored any Hazardous Materials on real properties now or formerly owned, leased or operated by any of them or (ii) disposed of any Hazardous Materials in a manner contrary to any Environmental Laws in the case of clause (i) and (ii) in any manner that could reasonably be expected to result in a Material Adverse Effect. (d) All buildings on all real properties now owned, leased or operated by Parent or any of its Subsidiaries are in compliance with applicable Environmental Laws, except where failure to comply could not reasonably be expected to result in a Material Adverse Effect. The fiscal year of Parent and the Company is the calendar year ending December 31. There does not exist any Default or Event of Default. Each outstanding share of stock, debenture, bond, note and other security of Parent, the Company and each Subsidiary has been validly issued in full compliance with each statute, regulation and other law, and, if a share of stock, is fully paid and nonassessable. Neither Parent, the Company nor any Subsidiaries has Inventory at any location in an aggregate in excess of $1,000,000 value at cost, other than the locations set forth in Schedule 5.22 attached hereto and made a part hereof. 5.23. USA Patriot Act. Neither Parent nor the Company nor any Subsidiary (i) is listed on the Specially Designated Nationals and Blocked Persons List (the "SDN List") maintained by the Office of Foreign Assets Control, Department of the Treasury ("OFAC"), or on any other list of terrorists or terrorist organizations maintained pursuant to any of the rules and regulations of OFAC or pursuant to any other applicable Executive Order (such other lists are referred to herein, collectively, as the "Other Lists"; the SDN List and the Other Lists are referred to herein, collectively, as the "Lists"), (ii) nor is it a person who has been determined by competent authority to be subject to the prohibitions contained in Executive Order No. 13224 (Sept. 23, 2001) or any other similar prohibitions contained in the rules and regulations of OFAC or in any enabling legislation or other Executive Orders in respect thereof, (iii) as of the date hereof, it is not controlled by, nor does it act for or on behalf of, any person on the Lists or any other person who has been determined by competent authority to be subject to the prohibitions contained in Executive Order No. 13224 (Sept. 23, 2001) or similar prohibitions contained in the rules and regulations of OFAC or any enabling legislation or other Executive Orders in respect thereof, and (iv) it is in material compliance with the requirements of Executive Order No. 13224 (Sept. 23, 2001) and other similar requirements contained in the rules and regulations of OFAC and in any enabling legislation or other Executive Orders in respect thereof. As of each of the date hereof and the Closing Day for the Final Subsequent Notes and after giving the effect to the transactions contemplated hereunder and, as applicable, under the Credit Agreement, on each such date, and to any other Indebtedness being incurred on each such date in connection therewith (a) the amount of the "present fair salable value" of the assets of the Parent and the Company will, as of such date, exceed the amount of all "liabilities of the Parent and the Company, contingent or otherwise," as of such date, as such quoted terms are determined in accordance with applicable federal and state laws governing determinations of the solvency of debtors, (b) the present fair salable value of the assets of the Parent and the Company will, as of each such date, be greater than the amount that will be required to pay the liability of the Parent and the Company on its debts as such debts become absolute and matured, (c) the Parent and the Company will not have, as of each such date, an unreasonably small amount of capital with which to conduct their business, and (d) the Parent and the Company will be able to pay its debts as they mature. For purposes of this Section 5.24, "debt" means "liability or a claim", and "claim" means any (x) right to payment, whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured; or (y) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured or unmatured, disputed, undisputed, secured or unsecured. 5.25. Company and Subsidiary Guarantors. The Company and the Subsidiary Guarantors are operated as part of one consolidated business entity and are directly dependent upon each other for and in connection with their respective business activities and their respective financial resources. Parent and the Subsidiary Guarantors have received and will receive a direct economic and financial benefit from the Indebtedness incurred under the Original Note Agreement and this Agreement by the Company, and the incurrence of such Indebtedness was and is in the best interests of Parent and each of the Subsidiary Guarantors. 6. Representations of each Purchaser. You represent that you have purchased and will purchase the Notes for your own account or for one or more separate accounts maintained by you or for the account of one or more pension or trust funds and not with a view to the distribution thereof, provided that the disposition of your or their property shall at all times be within your or their control. You understand that the Notes have not been registered under the Securities Act and may be resold only if registered pursuant to the provisions of the Securities Act or if an exemption from registration is available, except under circumstances where neither such registration nor such an exemption is required by law, and that the Company is not required to register the Notes. You represent that at least one of the following statements is an accurate representation as to each source of funds (a "Source") used or to be used by you to pay the purchase price of the Notes purchased by you under the Original Note Agreement or to be purchased by you hereunder: (a) the Source is an "insurance company general account" (as the term is defined in the United States Department of Labor's Prohibited Transaction Exemption ("PTE") 95-60) in respect of which the reserves and liabilities (as defined by the annual statement for life insurance companies approved by the National Association of Insurance Commissioners (the "NAIC Annual Statement")) for the general account contract(s) held by or on behalf of any employee benefit plan together with the amount of the reserves and liabilities for the general account contract(s) held by or on behalf of any other employee benefit plans maintained by the same employer (or affiliate thereof as defined in PTE 95-60) or by the same employee organization in the general account do not exceed 10% of the total reserves and liabilities of the general account (exclusive of separate account liabilities) plus surplus as set forth in the NAIC Annual Statement filed with such Purchaser's state of domicile; or (b) the Source is a separate account that is maintained solely in connection with such Purchaser's fixed contractual obligations under which the amounts payable, or credited, to any employee benefit plan (or its related trust) that has any interest in such separate account (or to any participant or beneficiary of such plan (including any annuitant)) are not affected in any manner by the investment performance of the separate account; or (c) the Source is either (i) an insurance company pooled separate account, within the meaning of PTE 90-1 or (ii) a bank collective investment fund, within the meaning of the PTE 91-38 and, except as disclosed by such Purchaser to the Company in writing pursuant to this clause (c), no employee benefit plan or group of plans maintained by the same employer or employee organization beneficially owns more than 10% of all assets allocated to such pooled separate account or collective investment fund; or (d) the Source constitutes assets of an "investment fund" (within the meaning of Part V of PTE 84-14 (the "QPAM Exemption")) managed by a "qualified professional asset manager" or "QPAM" (within the meaning of Part V of the QPAM Exemption), no employee benefit plan's assets that are included in such investment fund, when combined with the assets of all other employee benefit plans established or maintained by the same employer or by an affiliate (within the meaning of Section V(c)(1) of the QPAM Exemption) of such employer or by the same employee organization and managed by such QPAM, exceed 20% of the total client assets managed by such QPAM, the conditions of Part I(c) and (g) of the QPAM Exemption are satisfied, neither the QPAM nor a person controlling or controlled by the QPAM (applying the definition of "control" in Section V(e) of the QPAM Exemption) owns a 5% or more interest in the Company and (i) the identity of such QPAM and (ii) the names of all employee benefit plans whose assets are included in such investment fund have been disclosed to the Company in writing pursuant to this clause (d); or (e) the Source constitutes assets of a "plan(s)" (within the meaning of Section IV of PTE 96-23 (the "INHAM Exemption")) managed by an "in-house asset manager" or "INHAM" (within the meaning of Part IV of the INHAM exemption), the conditions of Part I(a), (g) and (h) of the INHAM Exemption are satisfied, neither the INHAM nor a person controlling or controlled by the INHAM (applying the definition of "control" in Section IV(h) of the INHAM Exemption) owns a 5% or more interest in the Company and (i) the identity of such INHAM and (ii) the name(s) of the employee benefit plan(s) whose assets constitute the Source have been disclosed to the Company in writing pursuant to this clause (e); or (f) the Source is a governmental plan; or (g) the Source is one or more employee benefit plans, or a separate account or trust fund comprised of one or more employee benefit plans, each of which has been identified to the Company in writing pursuant to this clause (g); or (h) the Source does not include assets of any employee benefit plan, other than a plan exempt from the coverage of ERISA. As used in this Section 6.2, the terms "employee benefit plan," "governmental plan," and "separate account" shall have the respective meanings assigned to such terms in Section 3 of ERISA. 7. Information as to Parent and Compan y. 7.1. Financial and Business Information. Parent shall deliver to each Holder that is an Institutional Investor: (a) Annual Financial Statements . As soon as available and in any event within 90 days after the close of each fiscal year of Parent and the Company, the consolidated balance sheets of the Parent and its consolidated Subsidiaries as at the end of such fiscal year and the related consolidated statements of income, of stockholders' equity and of cash flows for such fiscal year, in each case setting forth comparative figures for the preceding fiscal year, all in reasonable detail and accompanied by the opinion with respect to such consolidated financial statements of independent public accountants of recognized national standing selected by Parent, which opinion shall be unqualified and shall (i) state that such accountants audited such consolidated financial statements in accordance with generally accepted auditing standards, that such accountants believe that such audit provides a reasonable basis for their opinion, and that in their opinion such consolidated financial statements present fairly, in all material respects, the consolidated financial position of Parent and its consolidated Subsidiaries as at the end of such fiscal year and the consolidated results of their operations and cash flows for such fiscal year in conformity with generally accepted accounting principles, or (ii) contain such statements as are customarily included in unqualified reports of independent accountants in conformity with the recommendations and requirements of the American Institute of Certified Public Accountants (or any successor organization). (b) Quarterly Financial Statements . As soon as available and in any event within 45 days after the close of each of the quarterly accounting periods in each fiscal year of Parent and the Company, the unaudited consolidated balance sheets of the Parent and its consolidated Subsidiaries as at the end of such quarterly period and the related unaudited consolidated statements of income and of cash flows for such quarterly period and/or for the fiscal year to date, and setting forth, in the case of such unaudited consolidated statements of income and of cash flows, comparative figures for the related periods in the prior fiscal year, and which shall be certified by a Senior Financial Officer, subject to changes resulting from normal year-end audit adjustments. (c) Officer's Compliance Certificates . At the time of the delivery of the financial statements provided for in Sections 7.1(a) and (b), a certificate by a Senior Financial Officer to the effect that no Default or Event of Default exists or, if any Default or Event of Default does exist, specifying the nature and extent thereof and the actions Parent and the Company propose to take with respect thereto, which certificate shall set forth the calculations required to establish compliance with the provisions of Sections 10.7 and 10.13 through 10.16, inclusive, of this Agreement. (d) Notice of Default, Litigation, Material Adverse Effect . Promptly, and in any event within three Business Days after any of Parent, the Company or any Subsidiary obtains knowledge thereof, notice of (i) the occurrence of any event that constitutes a Default or Event of Default, which notice shall specify the nature thereof, the period of existence thereof and what action the Parent and the Company propose to take with respect thereto; or (ii) the commencement of, or any other material development concerning, any litigation, governmental or regulatory proceeding pending against the Parent, the Company, or any Subsidiary, or any other event if the same involves any reasonable possibility of having a Material Adverse Effect. (e) ERISA . Promptly, and in any event within 10 days after Parent, the Company, any Subsidiary or any ERISA Affiliate knows of the occurrence of any of the following, Parent will deliver to each of the Holders a certificate on behalf of Parent by a Responsible Officer of the Parent or the Company setting forth the full details as to such occurrence and the action, if any, that Parent, the Company or such Subsidiary or such ERISA Affiliate is required or proposes to take, together with any notices required or proposed to be given to or filed with or by Parent, the Company, the Subsidiary, the ERISA Affiliate, the PBGC, a Plan participant or the Plan administrator with respect thereto (i) that a Reportable Event has occurred with respect to any Plan; (ii) the institution of any steps by any Borrower, any ERISA Affiliate, the PBGC or any other person to terminate any Plan; (iii) the institution of any steps by Parent, the Company or any ERISA Affiliate to withdraw from any Plan; (iv) the institution of any steps by any of the Parent, the Company or any Subsidiary to withdraw from any Multiemployer Plan or Multiple Employer Plan, if such withdrawal could result in withdrawal liability (as described in Part 1 of Subtitle E of Title IV of ERISA) in excess of $5,000,000; (v) a non-exempt "prohibited transaction" within the meaning of Section 406 of ERISA in connection with any Plan; (vi) that a Plan has an Unfunded Current Liability exceeding $5,000,000; (vii) any material increase in the contingent liability of Parent, the Company or any Subsidiary with respect to any post-retirement welfare liability; or (viii) the taking of any action by, or the threatening of the taking of any action by, the Internal Revenue Service, the Department of Labor or the PBGC with respect to any of the foregoing. (f) Environmental Matters . Promptly upon, and in any event within 10 Business Days after, Parent, the Company or any Subsidiary obtains knowledge thereof, notice of one or more of the following environmental matters: (i) any pending or threatened material Environmental Claim against the Parent, the Company or any of their Subsidiaries or any real property owned or operated by the Parent, the Company or any of their Subsidiaries; (ii) any condition or occurrence on or arising from any real property owned or operated by the Parent, the Company or any Subsidiary that (A) results in material noncompliance by Parent, the Company or any Subsidiary with any applicable Environmental Law or (B) would reasonably be expected to form the basis of a material Environmental Claim against Parent, the Company or any Subsidiary or any such real property; (iii) any condition or occurrence on any real property owned, leased or operated by Parent, the Company or any Subsidiary that could reasonably be expected to cause such real property to be subject to any material restrictions on the ownership, occupancy, use or transferability by any the Parent, the Company or any Subsidiary of such real property under any Environmental Law; and (iv) the taking of any material removal or remedial action in response to the actual or alleged presence of any Hazardous Material on any real property owned, leased or operated by Parent, the Company or any Subsidiary as required by any Environmental Law or any governmental or other administrative agency. All such notices shall describe in reasonable detail the nature of the Environmental Claim, Parent's, the Company's or such Subsidiary's response thereto and, to the extent reasonably ascertainable, the potential exposure in dollars of Parent, the Company and their Subsidiaries with respect thereto. (g) SEC Reports and Registration Statements . Promptly after transmission thereof or other filing with the SEC, copies of all registration statements and all annual, quarterly or current reports that the Parent, the Company or any Subsidiary is required to file with the SEC on Form 10-K, 10-Q or 8-K (or any successor forms). (h) Annual and Quarterly Reports, Proxy Statements and other Reports Delivered to Stockholders Generally . Promptly after transmission thereof to its stockholders, copies of all annual, quarterly and other reports and all proxy statements that Parent furnishes to its stockholders generally. (i) Auditors' Internal Control Comment Letters, etc . Promptly upon receipt thereof, a copy of each letter or memorandum commenting on internal accounting controls and/or accounting or financial reporting policies followed by Parent, the Company and/or any Subsidiary that is submitted to Parent or the Company by their independent accountants in connection with any annual or interim audit made by them of the books of Parent or any of its Subsidiaries. (j) Other Information . Promptly, but in any event within 10 Business Days upon request therefor, such other information or documents (financial or otherwise) relating to the Parent, the Company or any Subsidiary as such Holders may reasonably request from time to time (including information necessary in order to permit compliance with the information requirements of Rule 144A under the Securities Act in connection with a resale of the Notes). 7.2. Books and Records Inspection. Parent and the Company shall, and shall cause each Subsidiary to, keep proper books of record and account, in which full and correct entries shall be made of all financial transactions and the assets of Parent, the Company and such Subsidiaries in accordance with GAAP and shall permit the representatives of each Holder that is an Institutional Investor: (a) No Default -- if no Default or Event of Default then exists, at the expense of such Holder and upon reasonable prior notice to Parent and the Company, to visit the principal executive office of Parent and the Company, to discuss the affairs, finances and accounts of Parent, the Company and its Subsidiaries with Parent's and the Company's officers, and (with the consent of Parent and the Company, which consent will not be unreasonably withheld) its independent public accountants, and (with the consent of Parent and the Company, which consent will not be unreasonably withheld) to visit the other offices and properties of Parent, the Company and each Subsidiary, all at such reasonable times and as often as may be reasonably requested in writing; and (b) Default -- if a Default or Event of Default then exists, at the expense of Parent and the Company to visit and inspect any of the offices or properties of Parent, the Company or any Subsidiary, to examine all their respective books of account, records, reports and other papers, to make copies and extracts therefrom, and to discuss their respective affairs, finances and accounts with their respective officers and independent public accountants (and by this provision Parent and the Company authorize said accountants to discuss the affairs, finances and accounts of Parent, the Company and its Subsidiaries), all at such times and as often as may be requested. 8.1. Optional Prepayments with Make-Whole Amount. The Company may, at its option, upon notice as provided below, prepay at any time after the issuance and sale of the Final Subsequent Notes hereunder or the cancellation of the closing of the purchase and sale of the Final Subsequent Notes and the payment of the Cancellation Fee, all, or from time to time any part of, the Notes, in an amount not less than $5,000,000 plus $100,000 increments in the case of a partial prepayment, at 100% of the principal amount so prepaid, plus the Make-Whole Amount determined for the prepayment date with respect to such principal amount. The Company will give each Holder written notice of each optional prepayment under this Section 8.1 not less than 30 days and not more than 60 days prior to the date fixed for such prepayment. Each such notice shall specify such date, the aggregate principal amount of the Notes to be prepaid on such date, the principal amount of each Note held by such Holder to be prepaid (determined in accordance with Section 8.2), and the interest to be paid on the prepayment date with respect to such principal amount being prepaid, and shall be accompanied by a certificate of a Senior Financial Officer as to the estimated Make-Whole Amount due in connection with such prepayment (calculated as if the date of such notice were the date of the prepayment), setting forth the details of such computation. Two Business Days prior to such prepayment, the Company shall deliver to each Holder a certificate of a Senior Financial Officer specifying the calculation of such Make-Whole Amount as of the specified prepayment date. 8.2. Allocation of Partial Prepayments. In the case of each partial prepayment of the Notes, the principal amount of the Notes to be prepaid shall be allocated among all of the Notes at the time outstanding in proportion, as nearly as practicable, to the respective unpaid principal amounts thereof not theretofore called for prepayment. 8.3. Maturity; Surrender, Etc. In the case of each prepayment of Notes pursuant to this Section 8, the principal amount of each Note to be prepaid shall mature and become due and payable on the date fixed for such prepayment, together with interest on such principal amount accrued to such date and the applicable Make-Whole Amount, if any. From and after such date, unless the Company shall fail to pay such principal amount when so due and payable, together with the interest and Make-Whole Amount, if any, as aforesaid, interest on such principal amount shall cease to accrue. Any Note paid or prepaid in full shall be surrendered to the Company and cancelled and shall not be reissued, and no Note shall be issued in lieu of any prepaid principal amount of any Note. The Company will not and will not permit any Affiliate to purchase, redeem, prepay or otherwise acquire, directly or indirectly, any of the outstanding Notes except upon the payment or prepayment of the Notes in accordance with the terms of this Agreement and the Notes. The Company will promptly cancel all Notes acquired by it or any Affiliate pursuant to any payment, prepayment or purchase of Notes pursuant to any provision of this Agreement and no Notes may be issued in substitution or exchange for any such Notes. 8.5. Offer to Prepay Notes in the Event of a Change in Control. (a) Notice of Impending Change in Control. The Company shall give to each Holder prompt written notice of any impending Change in Control for which it has received a written offer or notice. (b) Notice of Occurrence of Change in Control. The Company will promptly after any Responsible Officer has knowledge of the occurrence of any Change in Control, give written notice of such Change in Control to each Holder. Such notice shall contain and constitute an offer to prepay the Notes as described in clause (c) and shall be accompanied by the certificate described in clause (f) hereof. (c) Offer to Prepay Notes. The offer to prepay Notes contemplated by the foregoing clause (b) shall be an offer to prepay, in accordance with and subject to this Section 8.5, all, but not less than all, the Notes held by each Holder (in this case only, "Holder" in respect of any Note registered in the name of a nominee for a disclosed beneficial owner shall mean such beneficial owner) on a date specified in such offer (the "Proposed Prepayment Date"). Such Proposed Prepayment Date shall be not less than 30 days and not more than 90 days after the date of such offer (if the Proposed Prepayment Date shall not be specified in such offer, the Proposed Prepayment Date shall be the 60 th day after the date of such offer). (d) Rejection, Acceptance. A Holder may accept the offer to prepay made pursuant to this Section 8.5 by causing a notice of such acceptance to be delivered to the Company within 60 days after receipt of the notice required pursuant to clause (b). A failure by a Holder to respond to an offer to prepay made pursuant to this Section 8.5 within such 60-day period shall be deemed to constitute an acceptance of such offer by such Holder. (e) Prepayment. Prepayment of the Notes to be prepaid pursuant to this Section 8.5 shall be at 101% of the principal amount of such Notes, together with interest on such Notes accrued to the date of prepayment. The prepayment shall be made on the Proposed Prepayment Date. (f) Officer's Certificate. Each offer to prepay the Notes pursuant to this Section 8.5 shall be accompanied by a certificate, executed by a Responsible Officer of the Company and dated the date of such offer, specifying: (i) the Proposed Prepayment Date; (ii) that such offer is made pursuant to this Section 8.5; (iii) the principal amount of each Note offered to be prepaid; (iv) the interest that would be due on each Note offered to be prepaid, accrued to the Proposed Prepayment Date; (v) that the conditions of this Section 8.5 have been fulfilled; and (vi) in reasonable detail, the nature and date of the Change in Control. 8.6. Offer to Prepay Notes in the Event of a Receipt of certain Cash Proceeds of Events of Loss. (a) Notice of Receipt of Cash Proceeds. If during any fiscal year of Parent and the Company, Parent and its Subsidiaries have received cumulative cash proceeds during such fiscal year from one or more Events of Loss of more than 5% of Parent's Consolidated Net Worth and such proceeds are not used by Parent and its Subsidiaries to rebuild, repair or reconstruct the property destroyed or damaged, the Company shall promptly give written notice of such receipt to each Holder. Such notice shall contain and constitute an offer to prepay the Notes as described in clause (b) and shall be accompanied by the certificate described in clause (e) hereof. (b) Offer to Prepay Notes. The offer to prepay Notes contemplated by the foregoing clause (a) shall be an offer to prepay, in accordance with and subject to this Section 8.6, the Notes held by Holders (in this case only, "Holder" in respect of any Note registered in the name of a nominee for a disclosed beneficial owner shall mean such beneficial owner) on a date specified in such offer and in an amount equal to Holders' Share of the cash proceeds received by Parent and its Subsidiaries (the "Proposed Prepayment Date"). Such Proposed Prepayment Date shall be not less than 30 days and not more than 90 days after the date of such offer (if the Proposed Prepayment Date shall not be specified in such offer, the Proposed Prepayment Date shall be the 60th day after the date of such offer). (c) Rejection, Acceptance. A Holder may accept the offer to prepay made pursuant to this Section 8.6 by causing a notice of such acceptance to be delivered to the Company within 60 days after receipt of the notice required pursuant to clause (a). A failure by a Holder to respond to an offer to prepay made pursuant to this Section 8.6 within such 60-day period shall be deemed to constitute an acceptance of such offer by such Holder. (d) Prepayment. Prepayment of the Notes to be prepaid pursuant to this Section 8.6 shall be accompanied by the Make-Whole Amount determined for the Proposed Prepayment Date with respect to the principal amount to be prepaid. The prepayment shall be made on the Proposed Prepayment Date. (e) Officer's Certificate. Each offer to prepay the Notes pursuant to this Section 8.5 shall be accompanied by a certificate, executed by a Responsible Officer of the Company and dated the date of such offer, specifying: (i) the Proposed Prepayment Date; (ii) that such offer is made pursuant to this Section 8.6; (iii) the principal amount of each Note offered to be prepaid; (iv) the interest that would be due on each Note offered to be prepaid, accrued to the Proposed Prepayment Date; (v) a computation of the Make-Whole Amount due in connection with such prepayment and (vi) that the conditions of this Section 8.6 have been fulfilled. The term "Make-Whole Amount" means, with respect to any Note, an amount equal to the excess, if any, of the Discounted Value of the Remaining Scheduled Payments with respect to the Called Principal of such Note over the amount of such Called Principal, provided that the Make-Whole Amount may in no event be less than zero. For the purposes of determining the Make-Whole Amount, the following terms have the following meanings: " Called Principal" means, with respect to any Note, the principal of such Note that is to be prepaid pursuant to Section 8.1 or 8.6 or has become or is declared to be immediately due and payable pursuant to Section 12.1, as the context requires. " Discounted Value" means, with respect to the Called Principal of any Note, the amount obtained by discounting all Remaining Scheduled Payments with respect to such Called Principal from their respective scheduled due dates to the Settlement Date with respect to such Called Principal, in accordance with accepted financial practice and at a discount factor (as converted to reflect the periodic basis on which interest on such Note is payable, if payable other than on a semi-annual basis) equal to the Reinvestment Yield with respect to such Called Principal. " Reinvestment Yield" means, with respect to the Called Principal of any Note, 0.50% over the yield to maturity implied by (i) the yields reported, as of 10:00 A.M. (New York City time) on the Business Day next preceding the Settlement Date with respect to such Called Principal for actively traded U.S. Treasury securities having a maturity equal to the Remaining Average Life of such Called Principal as of such Settlement Date on the display designated as "Page PX1" on the Bloomberg Financial Market Service or such other display as may replace Page PX1 on the Bloomberg Financial Market Service (or if the Bloomberg Financial Market Service shall cease to report such yields or shall cease to be a customary source of information for calculating yield-maintenance amounts on privately placed notes then such source as is then a customary source for such information) or (ii) if such yields are not reported as of such time or the yields reported as of such time are not ascertainable, the Treasury Constant Maturity Series Yields reported, for the latest day for which such yields have been so reported as of the second Business Day preceding the Settlement Date with respect to such Called Principal, in Federal Reserve Statistical Release H.15 (519) (or any comparable successor publication) for actively traded U.S. Treasury securities having a constant maturity equal to the Remaining Average Life of such Called Principal as of such Settlement Date. Such implied yield will be determined, if necessary, by (a) converting U.S. Treasury bill quotations to bond-equivalent yields in accordance with accepted financial practice and (b) interpolating linearly between yields reported for various maturities. The Reinstatement Yield shall be rounded to that number of decimal places as appears in the interest rate set forth in the applicable Note. " Remaining Average Life" means, with respect to any Called Principal, the number of years (calculated to the nearest one-twelfth year) obtained by dividing (i) such Called Principal into (ii) the sum of the products obtained by multiplying (a) the principal component of each Remaining Scheduled Payment with respect to such Called Principal by (b) the number of years (calculated to the nearest one-twelfth year) that will elapse between the Settlement Date with respect to such Called Principal and the scheduled due date of such Remaining Scheduled Payment. " Remaining Scheduled Payments" means, with respect to the Called Principal of any Note, all payments of such Called Principal and interest thereon that would be due after the Settlement Date with respect to such Called Principal if no payment of such Called Principal were made prior to its scheduled due date, provided that if such Settlement Date is not a date on which interest payments are due to be made under the terms of the Notes, then the amount of the next succeeding scheduled interest payment will be reduced by the amount of interest accrued to such Settlement Date and required to be paid on such Settlement Date pursuant to Section 8.1 or 12.1. " Settlement Date" means, with respect to the Called Principal of any Note, the date on which such Called Principal is to be prepaid pursuant to Section 8.1 or has become or is declared to be immediately due and payable pursuant to Section 12.1, as the context requires. Each of Parent and the Company covenants that so long as any of the Notes are outstanding: It will and will cause each of its Subsidiaries to comply with all laws, ordinances or governmental rules or regulations to which each of them is subject, including, without limitation, Environmental Laws, and will obtain and maintain in effect all licenses, certificates, permits, franchises and other governmental authorizations necessary to the ownership of their respective properties or to the conduct of their respective businesses, in each case to the extent necessary to ensure that non-compliance with such laws, ordinances or governmental rules or regulations or failures to obtain or maintain in effect such licenses, certificates, permits, franchises and other governmental authorizations could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. (a) It will and will cause each of its Subsidiaries to maintain, with financially sound and reputable insurers, insurance with respect to their respective properties and businesses against such casualties and contingencies, of such types, on such terms and in such amounts (including deductibles, co-insurance and self-insurance, if adequate reserves are maintained with respect thereto) as is customary in the case of entities of established reputations engaged in the same or a similar business and similarly situated. (b) It will and will cause each of its Subsidiaries that is a Subsidiary Guarantor to, at all times keep their respective property that is subject to the Lien of any of the Security Documents insured in favor of the Collateral Agent, and all policies or certificates (or certified copies thereof) with respect to such insurance (and any other insurance maintained by Parent, the Company or any such Subsidiary) (i) shall be endorsed to the Collateral Agent's satisfaction for the benefit of the Collateral Agent (including, without limitation, by naming the Collateral Agent as an additional loss payee (with respect to Collateral) or, to the extent permitted by applicable law, as an additional insured as its interests may appear), (ii) shall state that such insurance policies shall not be canceled, reduced or expired without 30 days' prior written notice thereof (or 10 days' prior written notice in the case of cancellation for the nonpayment of premiums) by the respective insurer to the Collateral Agent, (iii) shall provide that the respective insurers irrevocably waive any and all rights of subrogation with respect to the Secured Lender Group, (iv) shall in the case of any such certificates or endorsements in favor of the Collateral Agent, be delivered to or deposited with the Collateral Agent, and (v) shall provide that the interests of the Collateral Agent shall not be invalidated by an act or negligence of Parent, the Company or any Subsidiary or any person having an interest in any facility owned, leased or used by Parent, the Company or any Subsidiary nor by occupancy or use of any facility owned, leased or used by Parent, the Company or any Subsidiary for purposes more hazardous than permitted by such policy nor by any foreclosure or other proceedings relating to any facility owned, leased or used by Parent, the Company or any Subsidiary. Parent shall deliver to the Collateral Agent contemporaneously with the expiration or replacement of any policy of insurance required to be maintained by this Agreement a certificate as to the new or renewal policy. 9.3. Maintenance of Properties. It will and will cause each of its Subsidiaries to maintain and keep, or cause to be maintained and kept, their respective properties in good repair, working order and condition (other than ordinary wear and tear), so that the business carried on in connection therewith may be properly conducted at all times, provided that this Section shall not prevent Parent, 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 Parent has concluded that such discontinuance could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. 9.4. Payment of Taxes and Claims. It will and will cause each of its Subsidiaries to file all tax returns required to be filed in any jurisdiction and to pay and discharge all taxes shown to be due and payable on such returns and all other taxes, assessments, governmental charges, or levies imposed on them or any of their properties, assets, income or franchises, to the extent such taxes and assessments have become due and payable and before they have become delinquent and all cl | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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